United States District Court, W.D. Arkansas, Hot Springs Division
T. DAWSON SENIOR U.S. DISTRICT JUDGE
Court has received a Report and Recommendation (ECF No. 74)
from United States Magistrate Judge Barry A. Bryant regarding
Defendants’ Motion for Summary Judgment (ECF No. 52).
Plaintiffs filed their complaint on May 7, 2018 alleging
federal and supplemental causes of action based on the facts
and circumstances surrounding the discontinuation of Danny
Bugg’s employment relationship with the City of Hot
Springs. (Compl., May 7, 2018, ECF No. 1.) Judge Bryant
recommends that Defendants’ Motion for Summary Judgment
be granted and that Plaintiffs’ case be dismissed with
prejudice. Plaintiffs have filed timely objections (ECF No.
79.) This matter is ripe for review.
Court has conducted a de novo review of the entire
record, including those portions of the report and
recommendation to which Plaintiffs have objected. 28 U.S.C.
636(b)(1). The central theme of Plaintiffs’ objections
is that Danny Bugg did not intend to retire or resign his
position when he sent the September 8, 2017
email to Hot Springs Police Chief Jason Stachey.
Plaintiffs contend that Defendants persistently and
wrongfully misconstrued the purpose of the email, relieved
Danny of duty, and terminated his employment benefits.
According to Plaintiffs, Defendants lacked the authority to
discontinue Danny’s employment relationship, and they
maintain that Danny Bugg is still a legal employee of the
City. Specifically, Plaintiffs contend that former City
Manager David Frasher had no authority to appoint Police
Chief Jason Stachey; that no Defendant possessed the power to
interpret Danny Bugg’s intent regarding the September
8, 2017 email, as only Danny himself could end his employment
relationship based on his own intent; and that, because
Defendants took action in reliance on a state law and a local
ordinance that are unconstitutional, Defendants lacked the
power and authority to end Danny’s employment in any
manner. Plaintiffs object to the Report and Recommendations
contending that the Magistrate failed to address the
“lack of delegated authority” issue(s).
order to survive a motion for summary judgment, the
non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts” and cannot rest on mere denials or allegations.
Gibson v. Am. Greetings Corp., 670 F.3d 844, 853
(8th Cir. 2012). In this case, Plaintiffs are
obligated to meet proof with proof. Bolderson v. City of
Wentzville, 840 F.3d 982, 986 (8th Cir.
2016). Unsubstantiated suspicions will not suffice to meet
pleadings filed in support of their motion for summary
judgment, Defendants cite to Ark. Code Ann.
§14-42-110(b) as authority for their power to act in
this case: “City managers in cities having a city
manager form of government shall have the power to appoint
and remove all department heads.” Id.
Defendants also cite to the local ordinance giving the city
manager the power and duty to “supervise and control
all administrative departments, agencies, offices and
employees of the city subject to such conditions and
exceptions, if any, as may be determined from time to time by
the board of directors” and “delete, reclassify,
consolidate or combine positions, offices, units, sections,
departments or divisions under his/her jurisdiction.”
response, Plaintiffs contend that Ark. Code Ann. §
14-42-110(b) and H.S.C. § 2-3-4(d) are
unconstitutional because they conflict with Ark. Code Ann.
§ 14-47-120(4)(A)(i) which provides, “[e]xcept as
provided in subdivision (4)(A)(ii) of this section, [the city
manager] shall nominate, subject to confirmation by the
board, persons to fill all vacancies at any time occurring in
any office, employment, board, authority, or commission to
which the board’s appointive power extends.”
According to Plaintiffs, §14-47-120 limits the city
manager to making nominations, and the nominations must be
confirmed by the board of directors before becoming
effective. In addition, Plaintiffs refer to
§14-47-120(4)(B) which provides that a city manager may
remove from office “all officials and employees”
and that ‘[r]emoval by the city manager shall be
approved by the board.” Id. In short,
Plaintiffs’ argue that the city manager is
“powerless to unilaterally remove officials and
employees.” (Pls.’ Mot. Partial Summ. J. at 11,
July 29, 2019, ECF No. 55.)
Court finds no merit in the Plaintiffs’ arguments. It
is far from clear that the code sections conflict with each
other. In any event, this Court will not rule on the
constitutionality of any statute or ordinance in this case,
because Plaintiffs’ complaint does not make such a
claim. Ark. Code Ann. §14-42-110(b) and H.S.C.
§2-3-4(b) were in effect (and remain in effect to this
day), and Defendants were entitled to rely on them.
Accordingly, Plaintiffs’ arguments regarding
“lack of authority” cannot provide the basis for
finding that the Defendants’ actions and conduct in
this case were unlawful.
objections offer neither law nor fact requiring departure
from the Magistrate’s findings. Accordingly, the Report
and Recommendation is proper, contains no clear error, and is
ADOPTED IN ITS ENTIRETY.
THEREFORE ORDERED that Plaintiff’s Complaint should be
and hereby is DISMISSED WITH PREJUDICE.
 Danny Bugg’s September 8, 2019
email to Jason Stachey and Chris Chapman reads as
After much thought and reflection I find that my first
duty to myself is to be honest. That relates to my honesty to
each of you. Looking at my calendar, it appears Friday,
January 5th, of 2018 would be as prime a day to
make my exit from the City of Hot Springs. This is NOT my
retirement, quite frankly I feel there is much more I can do
in this field of work. I simply am unable to continue in a
format where the likelihood of this department ...