Michael Bearden v. Dudley Lemon ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1700
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Michael Bearden, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Dudley Lemon, individually and in *
his official capacity as the Sheriff of *
Cleburne County, *
*
Appellant. *
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Submitted: October 20, 2006
Filed: February 2, 2007
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Before MELLOY, BENTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Michael Bearden, a former deputy of the Cleburne County, Arkansas, Sheriff’s
Department, sued Cleburne County Sheriff Dudley Lemon for reinstatement and
damages under 42 U.S.C. § 1983 and under two state law theories. Lemon moved for
summary judgment on several grounds including qualified immunity. The district
court1 granted summary judgment as to one of Bearden’s state law claims, denied
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
summary judgment as to the remaining state law claim, and denied qualified immunity
with respect to Bearden’s claim under 42 U.S.C. § 1983. Lemon now brings this
interlocutory appeal of the district court’s denial of qualified immunity. For the
reasons set forth below, we affirm.
I.
The facts, as found by the district court, are as follows. Bearden was employed
as a jailer and then as a patrol deputy by the Cleburne County Sheriff’s Department
from June 2000 until his termination in December 2004. During Lemon’s 2004
campaign for re-election as county sheriff, it was reported to Lemon that Bearden was
telling the public that Lemon had a policy against making arrests for Driving While
Intoxicated (“DWI”) violations, that Lemon had in fact instructed Bearden not make
DWI arrests, and that Lemon had a policy against prosecuting DWI charges. The fact
that Bearden made these public statements was at least one of the reasons that Lemon
terminated Bearden’s employment.
Lemon denied that he had a policy against the making of DWI arrests or against
the prosecution of DWI charges; however, in 2004 Lemon threatened Bearden’s
continued employment because of the DWI arrests Bearden had made. Further,
during Bearden’s tenure, Lemon instructed Bearden to seek the dismissal of two DWI
cases, and Bearden complied with these instructions by arranging with the local
prosecutor to have the DWI charges dismissed. Finally, Lemon arranged for the
dismissal of a third DWI case which arose from one of Bearden’s arrests.
Lemon terminated Bearden’s employment by a written termination notice
delivered to Bearden on December 27, 2004. The notice stated that Bearden was
discharged because he was overzealous in issuing traffic citations, citizens had
complained to Lemon that Bearden was spending too much time at a local
convenience store, and Bearden was patrolling the city of Heber Springs rather than
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patrolling the county. The termination was upheld by the County Grievance
Committee.
Bearden filed a complaint in the district court alleging that he was terminated
in retaliation for exercising his First Amendment right to free speech, i.e., speaking
out about Lemon’s policy of not making or prosecuting DWI arrests. The district
court denied summary judgment on the issue of qualified immunity finding that the
constitutional right allegedly violated was clearly established and that an issue of fact
remained as to whether Bearden’s public statements were truthful or intentionally
false. Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968) (holding that, absent proof
of false statement knowingly or recklessly made, a public employee’s exercise of the
right to speak on issues of public importance may not furnish the basis for dismissal
from public employment).
II.
Although a denial of summary judgment is not generally reviewable on
immediate appeal, a district court’s denial of summary judgment based on a public
official’s claim of qualified immunity may be appealed immediately. Sexton v.
Martin, 210 F.3d 905, 909 (8th Cir. 2000). In considering such an appeal, the district
court’s denial of summary judgment is reviewed de novo and the evidence is viewed
in the light most favorable to the nonmoving party. Collins v. Bellinghausen, 153
F.3d 591, 595 (8th Cir. 1998).
The qualified immunity determination involves a now familiar two-step
process. First, we ask whether, “[t]aken in the light most favorable to the party
asserting injury, . . . the facts alleged show the [defendant’s] conduct violated a
constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, we move to
the second inquiry, whether the constitutional right was clearly established at the time
the plaintiff was discharged. Id. To be clearly established, “[t]he contours of the right
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must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Further, “[t]his court has . . . taken a broad view of what constitutes
‘clearly established law’ for the purposes of a qualified immunity inquiry . . . .
Sexton 210 F.3d at 909 (quoting Boswell v. Sherburne County, 849 F.2d 1117, 1121
(8th Cir. 1988)). “[I]f the law claimed to have been violated was clearly established,
the qualified immunity defense ordinarily fails, ‘since a reasonably competent public
official should know the law governing his conduct.’” Id. at 910 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982)).
Bearden alleges in this action that he was discharged by Lemon in retaliation
for his exercise of the right to free speech, and, for purposes of the qualified immunity
inquiry, the district court found that Bearden’s speech was a basis for the termination.
The right not to be terminated for such speech has been clearly established for some
time. See Hartman v. Moore, 126 S. Ct. 1695, 1701 (2006) (“[T]he law is settled that
as a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions . . . for speaking out . . . .”) (citations
omitted); Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“[I]t is clearly established
that a State may not discharge an employee on a basis that infringes on that
employee’s constitutionally protected interest in freedom of speech.”) (citations
omitted).
Rather than argue that Bearden’s speech was not protected or that Bearden’s
right to free speech was not clearly established, Lemon asks this court to determine
that he is entitled to qualified immunity because he has proven by a preponderance of
the evidence that Lemon was terminated for reasons related to his job performance.
Mt. Healthy v. Doyle, 429 U.S. 274 (1977) (holding that where an employee makes
a prima facie showing of retaliation based on protected conduct, the burden shifts to
the employer to show, by a preponderance of the evidence, that the same action would
have been taken even in the absence of the protected conduct).
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First, the district court did not rule on this issue, and “we do not normally
consider issues which the district court did not rule upon.” First Union Nat’l Bank v.
Pictet Overseas Trust Corp., 351 F.3d 810, 816 (8th Cir. 2003); see also Singleton v.
Wolff, 428 U.S. 106, 120 (1976) (finding that, as a general rule, a federal appellate
court does not consider an issue not passed upon below); Sanders v. Clemco Indus.,
823 F.2d 214, 217 (8th Cir. 1987) (recognizing that a federal appellate court generally
does not consider issues not decided by the district court).
Second, we do not possess jurisdiction to determine the issue presented by
Lemon. In considering the immediate appeal from the denial of qualified immunity,
“‘the appealable issue is a purely legal one, whether the facts alleged . . . support a
claim of violation of clearly established law.’” Johnson v. Jones, 515 U.S. 304, 313
(1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985)); see also Behrens
v. Pelletier, 516 U.S. 299, 313 (1996) (“Johnson reaffirmed that summary judgment
determinations are appealable when they resolve a dispute concerning an ‘abstract
issu[e] of law’ relating to qualified immunity . . . typically, the issue whether the
federal right allegedly infringed was ‘clearly established.’”) (internal citation omitted);
Powell v. Johnson, 405 F.3d 652, 655 (8th Cir. 2005) (stating that a review of the
denial of qualified immunity “concerns only issues of law”); Wilson v. Lawrence
County, Mo., 260 F.3d 946, 951 (8th Cir. 2001) (“Denials of summary judgment
based on qualified immunity are appealable to the extent the appeal seeks review of
the purely legal determinations made by the district court.”). In this review, “we may
not assume any fact asserted [by the appellant] which the district court has deemed to
be genuinely disputed.” Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005).
Where, as here, the appellant asks this court to determine “whether or not the pretrial
record sets forth a genuine issue of fact for trial, we . . . have no jurisdiction over the
appeal.” Wilson, 260 F.3d at 951 (quoting Johnson, 515 U.S. at 319-20); see also
Powell, 405 F.3d at 655 (holding that, on interlocutory appeal from denial of qualified
immunity, appellate court lacks jurisdiction over appellee’s claim that public
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employee appellant would have been demoted for a legitimate job related reason
notwithstanding the employee’s protected activity).
At the very least, the district court found that a genuine issue of fact exists as
to whether Bearden’s protected speech was the motivating reason behind his
discharge. Accordingly, the issue of whether Lemon has “proven” that he would have
terminated Bearden for a legitimate reason related to his job performance regardless
of Bearden’s exercise of any protected First Amendment rights is beyond the
jurisdiction of this court in this appeal. Johnson, 515 U.S. at 313 (“[A] question of
‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at
trial . . . is not appealable.”).
III.
In his reply brief, Lemon asserts the additional claim that Bearden “had no
clearly established right to First Amendment protection for his alleged speech in this
case since his alleged protected activities were done pursuant to his official job
duties.” (Reply Brief of Appellant, p. 8). This claim was not argued in Lemon’s brief
in chief and, therefore, we will not consider the argument as “[i]t is well settled that
we do not consider arguments raised for the first time in a reply brief.” Navarijo-
Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir. 2003). Accordingly, Bearden’s
motion to strike that portion of Lemon’s reply brief is granted.
IV.
We therefore affirm the district court’s judgment that Lemon is not entitled to
summary judgment on the issue of qualified immunity. Bearden’s motion to dismiss
this appeal is denied, and the motion to strike a portion of Lemon's reply brief is
granted.
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