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Docketing Information on this case


23H

Moore v. City of Creedmoor

No. 435A95

(Filed 10 February 1997)

1.    Constitutional Law § 86 (NCI4th)-- dinette -- public nuisance -- 1983 action by dinette against town -- summary judgment for town -- improper

    In an action arising from a dispute concerning a dinette patronized predominantly by the African-American community which functioned primarily as an eating establishment during the week and inside of which on weekends there would be dancing from 10:00 p.m. until 1:30 a.m., there was sufficient evidence to create a genuine issue of fact as to whether a constitutional violation occurred and, because the injunction against operation of the dinette was a direct result of the resolution officially adopted by the Board of Commissioners and, arguably, the moving force behind the constitutional violation, the City of Creedmoor as a municipality may be sued under 42 U.S.C. § 1983. Although a municipal government is a creation of the State, it does not have the immunity granted to the State and its agencies; local governing bodies can be sued directly under § 1983 for monetary, declaratory, or injunctive relief and summary judgment should not have been granted for defendant town on the federal constitutional claims.

     Am Jur 2d, Civil Rights §§ 16, 17, 19.

2.    Constitutional Law § 86 (NCI4th)-- dinette -- nuisance injunction obtained by city -- 1983 action by dinette against police chief and commissioner -- official capacities -- summary judgment for defendants improper

    Summary judgment should not have been granted for a police chief and town commissioner in their official capacities on claims under 42 U.S.C. § 1983 arising from a dispute concerning a dinette patronized predominantly by the African-American community which functioned as an eating establishment during the week and allowed dancing on weekend nights. The only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses and the City here cannot claim immunity. Furthermore, these claims are merely another way of bringing suit against the City.

     Am Jur 2d, Civil Rights §§ 16, 17, 19.

3.    Constitutional Law § 115 (NCI4th)-- dinette as public nuisance -- complaint by dinette owner about police chief and commissioner -- retaliation -- free speech -- section 1983 action

    Summary judgment was improperly granted for defendant police chief and defendant city commissioner in their individual capacities on claims under 42 U.S.C. § 1983 arising from a dispute concerning a dinette patronized predominantly by the African-American community which functioned as an eating establishment during the week and allowed dancing on weekend nights. The Court of Appeals erroneously applied a balancing test derived from public-employer-employee cases; plaintiffs here are private citizens and there should be no balancing of competing interests with respect to their reports concerning the alleged negligence of city officials or the police department. They have a right to assert a public complaint concerning the negligence of public officials and to petition the government for redress of grievances. Where the First Amendment is implicated, any action which is taken in reckless disregard of a plaintiff's right will give rise to a section 1983 action. Based on the evidence presented, the issue of whether defendants retaliated against plaintiffs because Mr. Moore had exercised his freedom of speech is a factual issue which should be determined by a jury.

     Am Jur 2d, Civil Rights §§ 19, 20.

4.    Constitutional Law § 86 (NCI4th)-- dinette -- public nuisance -- section 1983 action by dinette owner -- no immunity for police chief and commissioner

    Summary judgment was improperly granted for a police chief and city commissioner in an action under 42 U.S.C. § 1983 arising from a dispute concerning a dinette patronized predominantly by the African-American community which functioned as an eating establishment during the week and allowed dancing on weekend nights.