Wicks v. Mississippi State Employment Services ( 1995 )


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  •                     United States Court of Appeals,
    Fifth Circuit.
    No. 94-60337
    Summary Calendar.
    George WICKS, Sr., Plaintiff-Appellee,
    v.
    MISSISSIPPI STATE EMPLOYMENT SERVICES, et al., Defendants,
    Hazel Cook, Defendant-Appellant.
    Jan. 6, 1995.
    Appeal from the United States District Court for the Northern
    District of Mississippi.
    Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.
    POLITZ, Chief Judge:
    Hazel Cook appeals the district court's denial of a protective
    order preventing all discovery prior to consideration of her motion
    to dismiss.    For the reasons assigned, we reverse and remand for
    further proceedings consistent herewith.
    Background
    George Wicks, Sr., an African-American male, applied for a
    management    position   with    his   employer,   the   Mississippi   State
    Employment Service.      The promotion was given to a white employee.
    Wicks filed suit against MSES and Hazel Cook, a former supervisor
    of Wicks, asserting both a racial discrimination claim1 and a first
    amendment claim.2    On April 13, 1994 Cook contemporaneously filed
    1
    42 U.S.C. § 1981 (Supp. III 1991).
    2
    42 U.S.C. § 1983 (1988). Wicks also asserted a claim under
    Title VII of the Civil Rights Act of 1964 against the MSES. That
    1
    two motions:     (1) a "Motion to Dismiss, or in the Alternative, for
    Summary     Judgment,"   which   asserted    the   defense   of    qualified
    immunity3 and (2) a "Motion to Hold Discovery in Abeyance" pending
    the consideration of Cook's qualified immunity defense.
    With the motion to dismiss pending before the district court,
    the discovery motion was referred to a magistrate judge who issued
    an order staying all discovery except for that related to Cook's
    defense of qualified immunity.           Cook objected to this limited
    discovery order and the district court affirmed the magistrate
    judge.
    Cook appeals the order allowing discovery on the issue of
    qualified immunity.      The motion to dismiss remains pending before
    the district court.
    Analysis
    Wicks vigorously maintains that we are without subject matter
    jurisdiction     to   hear   this   appeal    of    a   discovery     order.
    "Ordinarily, an order compelling limited discovery is interlocutory
    and not appealable under the final judgment rule...."4            The Supreme
    claim is not at issue in this appeal.
    3
    "Although the statutory language of § 1983 does not
    expressly provide for an immunity defense, courts have
    consistently held that "government officials are entitled to some
    form of immunity from suits for damages. As recognized at common
    law, public officers require this protection to shield them from
    undue interference with their duties and from potentially
    disabling threats of liability.' " Geter v. Fortenberry (Geter
    I), 
    849 F.2d 1550
    , 1552 (5th Cir.1988) (citing Harlow v.
    Fitzgerald, 
    457 U.S. 800
    , 806, 
    102 S. Ct. 2727
    , 2731, 
    73 L. Ed. 2d 396
    (1982)).
    4
    Lion Boulos v. Wilson, 
    834 F.2d 504
    , 506 (5th Cir.1987)
    (citing 28 U.S.C. § 1291 (1986)).
    2
    Court has held, however, that orders denying substantial claims of
    qualified immunity are immediately appealable under the collateral
    order doctrine.5 Cook equally vigorously contends that in allowing
    limited discovery on the issue of qualified immunity, the district
    court effectively has denied her the benefits of the qualified
    immunity defense, the most relevant being the protection from
    pretrial discovery.6     Thus, she argues, the district court's order
    is appealable immediately under the collateral order doctrine and
    this court has appellate jurisdiction.              We hold today that the
    discovery order denied Cook the benefits of the qualified immunity
    defense, thereby vesting this court with the requisite jurisdiction
    to review the discovery order.7
    In Lion Boulos v. Wilson, we held that a party asserting the
    defense of qualified immunity is not immune from all discovery,
    only that which is "avoidable or overly broad."8            We stated that
    when the district court "is unable to rule on the immunity defense
    without further clarification of the facts" and when the discovery
    order is "narrowly tailored to uncover only those facts needed to
    rule on     the   immunity   claim,"   an   order   allowing   such   limited
    discovery is neither avoidable nor overly broad.9               Under those
    5
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 
    105 S. Ct. 2806
    , 
    86 L. Ed. 2d 411
    (1985).
    6
    Helton v. Clements, 
    787 F.2d 1016
    (5th Cir.1986).
    7
    Mitchell.
    
    8 834 F.2d at 507
    .
    9
    
    Id. at 507-08.
    The Lion Boulos court noted that when the
    assertion of the qualified immunity defense turned purely on a
    3
    conditions,       we   held    that   the      appellate   court     was   without
    jurisdiction to review the discovery order.
    Discovery under Lion Boulos, however, must not proceed until
    the district court first finds that the plaintiff's pleadings
    assert    facts    which,     if   true,    would   overcome   the    defense   of
    qualified immunity.10         This heightened pleading requirement, first
    articulated in Elliott v. Perez,11 requires Wicks to allege the
    question of law, the district court should rule on the motion to
    dismiss without discovery. 
    Id. at 508.
    The same would be true
    if the facts upon which the defense of qualified immunity turned
    were not disputed by the parties. See Anderson v. Creighton, 
    483 U.S. 635
    , 646 n. 6, 
    107 S. Ct. 3034
    , 3042 n. 6, 
    97 L. Ed. 2d 523
    (1987) ("[I]f the actions Anderson claims he took are different
    from those the Creightons allege ... then discovery may be
    necessary before Anderson's motion for summary judgment on
    qualified immunity grounds can be resolved.").
    10
    Foster v. City of Lake Jackson, 
    28 F.3d 425
    , 428 (5th
    Cir.1994) ("The burden of negating the defense lies with the
    plaintiffs."); Geter 
    I, 849 F.2d at 1554
    ("Where a plaintiff's
    pleadings assert facts which, if proven, would defeat a qualified
    immunity defense, limited discovery may be permitted tailored to
    the issue of qualified immunity."); Lion Boulos (citing Elliott
    v. Perez, 
    751 F.2d 1472
    (5th Cir.1985)); Brown v. Texas A & M
    Univ., 
    804 F.2d 327
    , 333 (5th Cir.1986) ("[T]he issue of
    qualified immunity is a threshold question, and "[u]ntil this
    threshold immunity question is resolved, discovery should not be
    allowed.' ") (citing 
    Harlow, 457 U.S. at 817
    , 102 S.Ct. at 2738
    (1982)). See also Jacquez v. Procunier, 
    801 F.2d 789
    (5th
    Cir.1986).
    11
    
    751 F.2d 1472
    (5th Cir.1985 (citing Leatherman v. Tarrant
    County Narcotics Unit, --- U.S. ----, 
    113 S. Ct. 1160
    , 
    122 L. Ed. 2d 517
    (1993)), Wicks contends that the heightened pleading standard
    cannot be reconciled with the concept of notice pleading set
    forth in the Federal Rules of Civil Procedure. We note, however,
    that the Leatherman decision expressly refrained from considering
    "whether [its] ... qualified immunity jurisprudence would require
    a heightened pleading in cases involving individual government
    officials." 
    Id. at ----,
    113 S.Ct. at 1162. In the absence of
    such a ruling, we are bound to follow the decisions of prior
    panels which have required plaintiffs to meet the heightened
    standard. Schultea v. Wood, 
    27 F.3d 1112
    (5th Cir.1994), reh'g
    en banc granted (Aug. 26, 1994). See also Branch v. Tunnell, 14
    4
    particular facts forming the basis of his claim, including those
    preventing Cook from successfully maintaining a qualified immunity
    defense.       To overcome the immunity defense, the complaint must
    allege facts that, if proven, would demonstrate that Cook violated
    clearly        established    statutory       or   constitutional      rights.12
    Heightened       pleading    demands   more    than    bald   allegations     and
    conclusionary statements.13         Wicks must allege facts specifically
    focusing on the conduct of Cook which caused his injury.14
    If   Wicks'   complaint   falls     short   of   this   standard,   the
    district court should rule on the motion to dismiss before any
    discovery is allowed.15        The allowance of discovery without this
    threshold showing is immediately appealable as a denial of the true
    measure of protection of qualified immunity.16                If the complaint
    F.3d 449 (9th Cir.) (holding that a panel is bound by prior
    panel's adoption of heightened pleading because Leatherman did
    not undermine that precedent), cert. denied, --- U.S. ----, 
    114 S. Ct. 2704
    , 
    129 L. Ed. 2d 832
    (1994).
    12
    Jacquez (citing Harlow).
    13
    Streetman v. Jordan, 
    918 F.2d 555
    (5th Cir.1990).
    14
    Jacquez.
    15
    See Geter 
    I, 849 F.2d at 1554
    ("Where a plaintiff's
    pleadings assert facts which, if proven, would defeat a qualified
    immunity defense, limited discovery may be permitted tailored to
    the issue of qualified immunity."); Geter v. Fortenberry (Geter
    II), 
    882 F.2d 167
    (5th Cir.1989) (accord).
    16
    In its decisions in Harlow and Mitchell, the Supreme Court
    made clear that immunity means more than just immunity from
    liability; it means immunity from the burdens of defending a
    suit, including the burdens of pretrial discovery. Thus, "courts
    have an obligation to carefully scrutinize a plaintiff's claim
    before subjecting public officials to the burdens of broad
    reaching discovery." 
    Jacquez, 801 F.2d at 791
    . The failure to
    do so is immediately appealable under Mitchell.
    5
    alleges facts to overcome the defense of qualified immunity, the
    district court may then proceed under Lion Boulos to allow the
    discovery necessary to clarify those facts upon which the immunity
    defense turns.17
    Thus, the initial step in our review requires an examination
    of Wicks' complaint to see if his allegations negate Cook's defense
    of qualified immunity.        In so doing, we find two allegations
    against Cook.     First, Wicks complains that Cook violated his first
    amendment rights by discriminating against him because of his
    protests of two reprimands issued by Cook.      His complaint states:
    [T]he fact that Plaintiff [Wicks] had exercised his First
    Amendment rights by appealing and protesting two unjustified
    write-ups given him by the Defendant, Hazel Cook, Plaintiff's
    supervisor, also contributed to the failure to get the
    promotion. Hazel Cook contributed to Plaintiff's failure to
    get the promotion because she entertains a hostility toward
    Plaintiff because of his protesting the unjustified write-ups
    that she had given him.
    . . . . .
    [H]er adverse comments about Plaintiff, ... based upon
    Plaintiff's protesting unjustified employment actions against
    him was [sic] also a proximate cause of Plaintiff's not
    getting the promotion.
    Our decisions have established that a public employee asserting a
    first amendment claim against his employer must show that the
    speech in question involves a matter of public concern, that his
    interest in commenting upon those matters is greater than the
    defendant's interest in promoting efficiency in delivery of public
    services, and that his speech motivated the defendant's offensive
    17
    Lion Boulos;   Geter I.
    6
    acts.18
    Wicks' allegations fail to suggest how Cook violated his
    clearly-established first amendment rights.     The most expansive
    reading of his complaint discloses no basis for a finding that his
    charges about poor "write-ups" are a matter of public concern.
    Moreover, the allegation that his speech motivated Cook's tortious
    acts is wholly conclusionary. Nor did Wicks allege exactly what he
    believes Cook did to prevent his promotion.19     The gravamen of
    Wicks' complaint appears to be nothing more than an attempt to
    redress a personal grievance, a claim not generally actionable
    against a public employer.20
    Wicks also complains that Cook discriminated against him on
    the basis of race,21 stating in his complaint that:
    18
    Thompson v. City of Starkville, 
    901 F.2d 456
    (5th
    Cir.1990).
    19
    Wicks argues in brief that Cook "poisoned the well" by
    making adverse verbal comments and by making "unjustified and
    unsubstantiated negative written reports" while his supervisor.
    Whereas these arguments may be more specific, we may not consider
    them because they do not appear in the pleadings, the focal point
    of the inquiry under Elliott.
    20
    
    Thompson, 901 F.2d at 461
    ("The rationale behind the
    public concern requirement is to prevent public employees from
    relying on the Constitution for redress of personal grievances.")
    (citing Connick v. Myers, 
    461 U.S. 138
    , 149, 
    103 S. Ct. 1684
    ,
    1691, 
    75 L. Ed. 2d 708
    (1983)).
    21
    We note that Wicks brings this claim under 42 U.S.C. §
    1981. Racial discrimination claims under this section also are
    subject to the defense of qualified immunity. See Saunders v.
    Bush, 
    15 F.3d 64
    (5th Cir.1994) (barring section 1981 claim due
    to absolute and qualified immunity of defendants). Although the
    heightened pleading standard enunciated in Elliott has been
    applied only in the context of section 1983 claims, the rationale
    of that decision applies to all civil rights actions where the
    defense of qualified immunity is asserted. An immunity from suit
    7
    Hazel Cook customarily and habitually treated black employees
    in a less favorable fashion than white employees, and her
    adverse comments about Plaintiff, based upon race and based
    upon Plaintiff's protesting unjustified employment actions
    against him, was also a proximate cause of Plaintiff's not
    getting the promotion.
    Again, Wicks makes only broad and wholly conclusional allegations
    that Cook discriminated against him on the basis of race.                   While
    Wicks does allege racial animus, an element of the prima facie case
    for his discrimination claim, he fails to allege any conduct of
    Cook that could be considered to "violate a clearly established
    statutory ... right."22         At best, Wicks states the conclusion that
    his race is the cause of any adverse comments Cook may have made.
    Wicks     must    allege   particular    facts   showing   behavior    by    Cook
    motivated        by   racial   animus.    To   merely   make   the   charge    is
    insufficient;         the complaint must "state with factual detail and
    particularity the basis for the claim which necessarily includes
    why the defendant-official cannot successfully maintain the defense
    does not vary with the statutory basis for that suit, and as we
    said in Elliott:
    [W]e conclude that allowing broadly-worded complaints,
    such as those of the plaintiffs here, which leaves to
    traditional pretrial depositions, interrogatories, and
    requests for admission the development of the real
    facts underlying the claim, effectively eviscerates
    important functions and protections of official
    immunity.
    22
    See Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 
    807 F.2d 1214
    , 1219 (5th Cir.1987), cert. denied, 
    484 U.S. 1010
    , 
    108 S. Ct. 709
    , 
    98 L. Ed. 2d 660
    (1988) (holding that section 1981 claim
    requires direct or circumstantial evidence of purposeful
    
    discrimination). 751 F.2d at 1476
    . Thus, Wicks must meet the heightened
    pleading standard for his section 1981 claim as well as his
    section 1983 claim.
    8
    of   immunity."23         Wicks'   complaint     is     devoid   of   such   detail;
    accordingly, we conclude that Wicks has failed to state a racial
    discrimination claim sufficient to overcome Cook's defense of
    qualified immunity.
    Because we find that Wicks failed to meet the threshold
    pleading requirements for either of his claims, we hold that any
    discovery by Wicks, even that limited in scope, is improper and
    immediately appealable as a denial of the benefits of the qualified
    immunity defense.          Because of this disposition of the discovery
    issue,       we   need    not   address       whether    the     immunity    defense
    sufficiently turned on a factual issue requiring discovery under
    Lion Boulos.       Moreover, we need not address Cook's contention that
    the discovery order was overly broad.
    We are aware that by requiring heightened pleading before
    discovery some plaintiffs will be unable to state a claim.                   But, as
    noted in the concurring opinion in Elliott, the "denial of some
    meritorious claims is the direct product of the immunity doctrine
    which weighed these losses when it struck the policy balance."24
    The seeming unfairness of this conclusion is tempered by this
    circuit's directives to allow a plaintiff initially failing to
    state a claim the opportunity to amend or supplement the pleadings
    freely, so that he may state his best case.25                  Where the plaintiff
    has filed only one pleading, as Wicks has here, immediate dismissal
    23
    
    Elliott, 751 F.2d at 1473
    .
    24
    
    Id. at 1483.
          25
    Jacquez.
    9
    ordinarily is not justified.26         Thus, on remand, Wicks should be
    given an opportunity to plead his case properly before dismissal is
    considered.
    The   denial   of   Cook's   request   for   a   protective   order
    preventing all discovery until consideration of the motion to
    dismiss is REVERSED and the request is GRANTED.            We REMAND to the
    district court for consideration of the motion to dismiss in a
    manner consistent herewith.27
    26
    
    Id. at 792.
         27
    Cook asks this court to hold that a motion to dismiss must
    be considered prior to the allowance of any discovery. We
    disagree. While we hold today that Lion Boulos requires a
    preliminary consideration of the pleadings prior to the allowance
    of discovery on the issue of qualified immunity, this inquiry
    need not result in a ruling on a motion to dismiss. Indeed, Lion
    Boulos illustrates a situation where a plaintiff satisfies the
    heightened pleading but alleges facts upon which the immunity
    defense turns which are disputed by the defendant. In such a
    situation, Lion Boulos held that discovery limited to the issue
    of the immunity defense could proceed "before ruling on a
    defendant's motion to 
    dismiss...." 834 F.2d at 507
    . Thus, we
    impose no requirement that the district court must rule on a
    motion to dismiss prior to the allowance of discovery in all
    situations. Rather, we hold simply that if the pleadings fail to
    state facts sufficient to overcome the defense of qualified
    immunity, then limited discovery is improper and dismissal, as
    qualified above, is in order.
    10