Kadalie v. Board of Regents of the University of Georgia , 171 F. App'x 770 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 3, 2006
THOMAS K. KAHN
No. 05-13196
CLERK
________________________
D. C. Docket No. 04-00101-CV-WTM-4
MODIBO KADALIE,
Plaintiff-Appellee,
versus
BOARD OF REGENTS OF THE UNIVERSITY
OF GEORGIA,
Defendant,
CARLTON E. BROWN,
JOSEPH A. SILVER,
Defendants-Appellants.
________________________
No. 05-14636
________________________
D. C. Docket No. 04-00101-CV-WTM-4
MODIBO KADALIE,
Plaintiff-Appellee,
versus
BOARD OF REGENTS OF THE UNIVERSITY OF GEORGIA,
CARLTON E. BROWN,
JOSEPH A. SILVER,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(March 3, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
This is the opinion in two consolidated appeals stemming from the lawsuit
filed by Mobido Kadalie against the Board of Regents of the University System of
Georgia, and against Dr. Carlton Brown, and Dr. Joseph Silver, who are the
President and Vice-President for Academic Affairs, respectively, of Savannah
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State University.
Appeal No. 05-13196 is the appeal of Drs. Brown and Silver from the
district court’s order denying them qualified immunity. We dismiss that appeal for
lack of appellate jurisdiction under the principles espoused in Johnson v. Jones,
515 U.S. 304, 115 S. Ct. 2151 (1995). Given the concession for purposes of
summary judgment that the first and second Pickering/Connick factors exist, see
Cook v. Gwinnett County School Dist., 414 F.3d 1313, 1315 (11th Cir. 2005), the
appeal boils down to an issue of evidentiary sufficiency concerning the entirely
factual issue of whether a jury could find that the third and fourth factors exist.
Under Johnson we lack interlocutory appellate jurisdiction to review the denial of
summary judgment on qualified immunity grounds when the dispute turns on the
sufficiency of the evidence to support a jury verdict.
To the extent that a mixed motive issue has been presented, it turns entirely
on the factual issue of whether a jury reasonably could find that the defendants
took action against the plaintiff for some reason other than, or in addition to, his
speech on a matter of public concern. This case is different from Stanley v. City
of Dalton, 219 F.3d 1280 (11th Cir. 2000), because there the defendants
indisputably were motivated by valid reasons for the action they took against the
plaintiff. Here, there is a factual issue on which the mixed motive question turns.
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Appeal No. 05-14636 is the appeal of the defendants from the district
court’s grant of a preliminary injunction preventing them from changing the
plaintiff’s employment status during the pendency of the litigation or until further
order of the court. Having carefully considered the reasoning in the district
court’s order and the arguments of the parties, we are not convinced that the
district court abused its discretion in entering the preliminary injunction.
The appeal in No. 05-13196 is DISMISSED FOR LACK OF
JURISDICTION. The order granting preliminary injunctive relief, which is the
subject of the appeal in 05-14636 is AFFIRMED.1
1
The plaintiff’s motion for summary affirmance in No. 05-13196 is DENIED AS MOOT.
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