Fikes v. City of Daphne

United States Court of Appeals,

Eleventh Circuit.

No. 94-7216.

James Larry FIKES, Plaintiff-Appellant,

v.

CITY OF DAPHNE; Joseph Hall, Police Chief for City of Daphne;
Susan Hostetter, City Personnel Manager a/k/a Susan Cowart;
Charlie McNichol, Employee for the City of Daphne; Walter Gipson,
Employee for the City of Daphne, et al., Defendants-Appellees.

April 9, 1996.

Appeal from the United States District Court for the Southern
District of Alabama. (No. CV-94-446-BH-M), William Brevard Hand,
Judge.

Before TJOFLAT, Chief Judge, and DYER and GARTH *, Senior Circuit
Judges.

TJOFLAT, Chief Judge:

This appeal presents the question of whether the district

court erred in dismissing, for failure to state a claim, a police

officer's complaint alleging that he was discharged from his

employment for exercising his freedom of speech. We find that the

complaint does state a claim. We therefore VACATE the court's

judgment and REMAND the case for further proceedings.

I.

On October 19, 1989, appellant went to work for the City of

Daphne, Alabama, as an officer in its police department. On July

15, 1992, following a pretermination hearing, the City discharged

appellant for "good cause," consisting of

(a) Deliberately stealing, destroying, abusing or damaging
City property, tools, or equipment, or the property of another

*
Honorable Leonard I. Garth, Senior U.S. Circuit Judge for
the Third Circuit, sitting by designation.
 employee, citizen or visitor;

(b) Disclosure of confidential city information to
unauthorized persons;

(c) Wilfully disregarding City policies or procedures.1

On June 10, 1994, twenty-three months after his discharge,

appellant brought this suit against the City, the city manager, the

city personnel manager, the police chief, and three police

officers.2 In a quintessential "shotgun" pleading, 3
appellant

sought compensatory damages4 against the defendants severally to

redress deprivation of rights secured by:

(a) The First, Fifth, Ninth and Fourteenth Amendments to the
United States Constitution providing for the rights of all
persons ... to enjoy freedom of speech, movement, association
and assembly, to petition their government for redress of
their grievances, to be secure in their persons, to be free
from unreasonable searches and seizures, to enjoy privacy, to
be free from slavery and deprivations of life, liberty and
property without due process of law, and the Civil Rights Act
of 1871, 42 U.S.C. § 1983, and § 1985(2), providing for the
protection of all persons in their civil rights and the
redress of deprivation of rights under color of law; and

(b) the common law of the State of Alabama providing for
damages to persons subjected to the intentional [infliction]
of emotional distress or the intentional interference with
employment contracts.

1
This statement of good cause is taken verbatim from
appellant's complaint.
2
Appellant also sued "DOES ONE through FIVE." The district
court, in its order dismissing the case, struck these unknown
persons as defendants.
3
See Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.),
cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131
(1991).
4
In the first paragraph of his complaint, appellant alleged
that he "seeks to enjoin the defendants from continuing to
deprive him of [his constitutional] rights." In the prayer for
relief at the conclusion of his complaint, however, appellant
made no mention of equitable relief. Rather, he sought only
money damages.
 The "Statement of Facts" contained in the complaint is rather

disorganized. It is difficult, without some speculation, to

discern precisely what took place and how, if at all, the events

interact with one another. In addition, one must read between the

lines to determine which events deprived appellant of the various

constitutional and statutory rights mentioned above. Given these

impediments to an accurate construction of appellant's complaint,

we relate the events described in, or arguably inferable from,

appellant's Statement of Facts. We set out these events in the

order in which they appear in the pleading.

(1) As noted above, appellant's employment in the police

department began in October 1989 and, following a pretermination

hearing, terminated in July 1992, purportedly for good cause.

(2) After his discharge, appellant sought employment at the

municipal airport in Mobile, Alabama, but was turned down because

the City's personnel manager said that he was ineligible for

reemployment with the City.

(3) In August 1990, while employed by the police department,

appellant was injured while responding to a domestic dispute. He

filed a worker's compensation claim. Following surgery, his

physician said he could return to work if restricted to light duty.

The chief of police, Joseph Hall, put appellant on full duty,

telling him that if he could not do his job, someone would be found

who could.

(4) After his worker's compensation claim was settled and he

returned to work, appellant attempted to reopen his claim.

(5) Soon after returning to work, appellant suffered
"additional symptoms, which required the services of a

chiropractor." The chiropractor placed additional restrictions on

his work activity; for example, appellant could not wear a "duty

belt" while sitting. Appellant's supervisor told appellant that he

could not work without wearing the belt.

(6) In August 1992, during a Department of Industrial

Relations hearing on appellant's worker's compensation claim, the

City's personnel manager testified falsely that appellant had not

reported to work since the previous March.

(7) On May 26, 1990, Officer McNichol, a defendant here,

ignored an order from his superior, Sergeant Gipson, to terminate

a high-speed automobile chase. McNichol disregarded the order and

continued the pursuit. The pursuit resulted in four fatalities.

Appellant immediately reported the incident to Chief Hall and, in

November 1991, to the Alabama Bureau of Investigation ("ABI").

(8) Sergeant Johnson, another defendant in the case, drove a

vehicle "that had not been properly condemned" on personal

business. Appellant reported the incident. The ABI determined

that Johnson's use of the vehicle was improper.

(9) At some point prior to his discharge, appellant commenced

an "investigation of certain improprieties within the Daphne Police

Department." Chief Hall told him "to be quiet about the entire

matter."

(10) Appellant disregarded the chief's admonition and

continued his investigation. He reported his findings to "other

appropriate authorities," including the ABI. When Chief Hall

learned of these reports, he told the city manager that appellant
had to be fired. Chief Hall then "devised and initiated a

systematic strategy to eliminate [appellant] from the Daphne Police

Department." The chief's strategy succeeded on July 15, 1992, when

the City discharged appellant.

(11) On November 12, 1991, Sergeants Gipson and Johnson

"attempted to interrogate [appellant] regarding his investigation

of the improprieties that [appellant] had witnessed within the

Daphne Police Department. [Appellant] responded by informing

[them] that he would not elaborate unless his attorney was present

along with [Chief] Hall. [Sergeants Gipson and Johnson] responded

by citing [appellant] for insubordination."

(12) The City terminated appellant's employment without

cause.5 The grounds the City cited as good cause for the

termination were pretextual. The City discharged appellant because

he was reporting episodes of misconduct in the Police Department to

the ABI and "other appropriate authorities."

Drawing on these facts, appellant sought in his complaint to

hold the defendants liable on four counts. The first two counts

contained state law claims: that the City lacked good cause for

discharging appellant, and that the City breached its duty to treat

appellant "in a manner so as not to cause him unnecessary mental

and emotional distress," by intentionally engaging, through its

agents and employees, "in a clearly outrageous course of conduct

causing severe emotional distress and physical harm to

[appellant]." The third and fourth counts alleged violations of

5
The allegation that appellant's discharge was unlawful
because it was without cause does not appear in the Statement of
Facts, but rather in count one of the complaint.
various federal constitutional and statutory provisions. Counts

three and four each alleged damages in excess of three million

dollars.

Count three states that during appellant's employment in the

police department, and in discharging him on July 15, 1992, the

defendants

either acted in a concerted, malicious intentional pattern to
deprive [appellant] of his constitutional rights, or knowing
that such [deprivation] was taking place, knowingly omitted to
act to protect [appellant] from continuing deprivations of his
rights to enjoy freedom of speech, movement, association and
assembly, to petition his government for redress of
grievances, and to be free from deprivations of life, liberty
and property without due process of law; all in violation of
the Constitution and laws of the United States....

[Moreover, the defendants,] in acting to deprive
[appellant] of his rights, went far beyond actions reasonably
necessary for the discharge of their duties and within the
scope of their employment, and instead misused their official
powers and acted from a willful and malicious intent to
deprive [appellant] of his civil rights and cause him grievous
injuries thereby.

[Finally, the defendants] acted in an outrageous and
[systematic] pattern of harassment, oppression, intimidation,
bad faith, employment discrimination, cover-up and retaliation
directed at [appellant]....

Count four of the complaint states that the defendants,

acting individually and in their official capacities as
supervisory and administrative officers of the City ...
conspired, planned, agreed and intended to harass, intimidate
and cause economic injury to [appellant]. [Their] purpose in
so acting was to prevent [appellant], through economic and
psychological violence and intimidation, from seeking the
equal protection of the laws, and from enjoying the equal
privileges and immunities of citizens under the Constitution
and laws of the United States and the State of Alabama,
including but not limited to his rights to enjoy freedom of
speech, movement, association and assembly, to petition his
government for redress of grievances, and to be free from
deprivations of life, liberty and property without due process
of law; all in violation of the Constitution of the United
States.

Pursuant to their conspiracy, [defendants] acted to
 deprive [appellant] of his civil rights, by repeated and
insidious act[s] of harassment, retaliation, intimidation, bad
faith and threat, all in violation of 42 U.S.C. § 1985(3).

One has to guess at the number of claims for relief appellant

attempted to state in counts three and four. By combining several

claims for relief in each count, appellant disregarded the rules

governing the presentation of claims to a district court. Federal

Rule of Civil Procedure 8(a)(2) requires a pleader, in setting

forth a claim for relief, to present "a short plain statement of

the claim showing that the pleader is entitled to relief." Federal

Rule of Civil Procedure 10(b) provides that "[a]ll averments of

claim ... shall be made in separate paragraphs, the contents of

each of which shall be limited as far as practicable to a statement

of a single set of circumstances...." Moreover, "[e]ach claim

founded upon a separate transaction or occurrence ... shall be

stated in a separate count ... whenever a separation facilitates

the clear presentation of the matters set forth." These rules work

together

to require the pleader to present his claims discretely and
succinctly, so that his adversary can discern what he is
claiming and frame a responsive pleading, the court can
determine which facts support which claims and whether the
plaintiff has stated any claims upon which relief can be
granted, and, at trial, the court can determine that evidence
which is relevant and that which is not.

T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n. 14 (11th

Cir.1985) (Tjoflat, J., dissenting).

The Rules of Civil Procedure also provide a cure for the

problem presented by counts three and four. Specifically, if a

complaint "is so vague or ambiguous that a [defendant] cannot

reasonably be required to frame a responsive pleading," the
defendant may move for a more definite statement before filing a

response. "If the motion is granted and the order of the court is

not obeyed within ten days after notice of the order or within such

other time as the court may fix, the court may strike the

[complaint] or make such order as it deems just." Fed.R.Civ.P.

12(e).

Although it is likely that a more definite statement would

have tightened appellant's complaint and perhaps eliminated many of

the claims, the defendants elected not to seek one.6 Instead,

pursuant to Federal Rule of Civil Procedure 12(b)(6), they moved

the court to dismiss the case for failure to state a claim for

relief. They also moved the court to strike portions of the

complaint as redundant.

Concluding that appellant's complaint failed to allege a

cognizable federal claim, the court dismissed counts three and

four. The court held, however, that even assuming the presence of

a cognizable federal claim, the defendants, who were sued in their

individual as opposed to their official capacities, were entitled

to qualified immunity. See generally Lassiter v. Alabama A & M

Univ., 28 F.3d 1146 (11th Cir.1994). Finding that the Rule

12(b)(6) ruling stripped the court of federal question

6
The district court had the inherent authority to require
the appellant to file a more definite statement. Such authority,
if not inherent in Rule 12(e), is surely within the district
court's authority to narrow the issues in the case in order to
speed its orderly, efficient, and economic disposition. In this
case, the district court would have acted well within its
discretion if, acting sua sponte, it had returned the complaint
to appellant's attorney (retaining a copy for the court file)
with the instruction that he plead the case in accordance with
Rules 8(a)(2) and 10(b).
jurisdiction, the court dismissed the pendent state law claims

without prejudice. This appeal followed the entry of final

judgment for the defendants.

II.

Appellant's sole challenge to the district court's judgment is

that the court erred in dismissing his claim under the First

Amendment, which is made applicable to state and local governments

by the Fourteenth Amendment.7 Given that error, appellant

contends, it follows that the court should not have dismissed the

pendent state law claims in counts one and two.

Appellant asks us to read his complaint as alleging that the

City, pursuant to a conspiracy with the individual defendants in

7
In its order dismissing the complaint, the district court
stated that it had "consider[ed] ... the motion, plaintiff's
response in opposition thereto, defendants' reply brief and
pertinent portions of the record...." Under the Federal rules of
Civil Procedure,

[i]f, on a motion ... to dismiss for failure ... to
state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable
opportunity to present all material made pertinent to
such a motion by Rule 56.

Fed.R.Civ.P. 12(b).

To the extent that the district court's opinion can be
read as showing that the court relied upon matters outside
of the complaint, we should construe the order as granting
summary judgment rather than dismissal under Rule 12(b)(6).
However, in order to convert a motion to dismiss pursuant to
Rule 12(b)(6) into a summary judgment motion, the district
court is required to provide sufficient notice to the
parties of its intent to do so. Here, the court failed to
provide such notice. Therefore, we will treat the district
court's order as one granting a Rule 12(b)(6) dismissal
rather than an order granting summary judgment.
the case, discharged appellant for exercising speech on a matter of

public concern—specifically, Officer McNichol's disregard of

Sergeant Gipson's order to discontinue the high-speed chase, which

resulted in four deaths. Appellant's complaint strongly implies,

if it does not explicitly allege, that when Chief Hall learned that

appellant was investigating "improprieties ... [appellant] had

witnessed within the ... Department" and that he was reporting his

findings to "appropriate authorities, including the ABI," he told

appellant to be quiet and, when appellant persisted, he told the

City's personnel manager that appellant had to go.

It is well established that a state may not discharge a

public employee in retaliation for public speech. Rankin v.

McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).

This circuit employs a four-part test to determine whether a state

(or, as in this case, a city) has done so.

First, a court must determine whether the employee's speech

may be fairly characterized as constituting speech on a matter of

public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct.

1684, 1689, 75 L.Ed.2d 708 (1983); Rankin, 483 U.S. at 384, 107

S.Ct. at 2896; Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993),

cert. denied, --- U.S. ----, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994)

(citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th

Cir.1989)). Speech addresses a matter of public concern when the

speech can be "fairly considered as relating to any matter of

political, social, or other concern to the community." Connick,

461 U.S. at 146, 103 S.Ct. at 1690. In the present case, appellant

has alleged that he was fired because he reported police misconduct
(i.e., failure to terminate a dangerous, high-speed chase, and

improper use of a confiscated vehicle).8 Certainly, the question

of whether police officers are properly performing their duties, as

a public safety issue, must be considered an issue of political or

social concern. Moreover, in alleging police misconduct, Fikes

sought to "bring to light actual or potential wrongdoing or breach

of public trust on the part of" government officials. Connick, 461

U.S. at 148, 103 S.Ct. at 1691. "[A] core concern of the [F]irst

[A]mendment is the protection of the "whistle-blower' attempting to

expose government corruption." Bryson, 888 F.2d at 1566.

Therefore, Fikes has alleged sufficient facts to establish that he

engaged in speech on a matter of public concern.

Second, a court must weigh the employee's "first amendment

interests" against the interest of the City, as an employer, "in

promoting the efficiency of the public services it performs through

its employees." Morgan, 6 F.3d at 754. In performing this

balancing test, a court must consider several factors: (1) whether

the speech at issue impeded the government's ability to perform its

duties effectively; (2) the manner, time and place of the speech;

and (3) the context within which the speech was made. Connick, 461

U.S. at 151-55, 103 S.Ct. at 1692-94; Morales v. Stierheim, 848

F.2d 1145, 1149 (11th Cir.1988), cert. denied, 489 U.S. 1013, 109

S.Ct. 1124, 103 L.Ed.2d 187 (1989). We can discern no indication

that Fikes' actions disrupted the functioning of the Daphne police

department. To the contrary, Files's attempts to expose police

8
The relevant portions of Fikes' complaint follow in an
Appendix to this opinion.
malfeasance helped further the municipality's responsibility to

provide effective law enforcement services. In addition, Fikes

chose to express his accusations at a "time, place, and manner" so

as to minimize possible disruptions to the police department.

Third, a court must determine whether the speech in question

played a "substantial part" in the government's decision to

discharge the employee. Id. Without a doubt, appellant's

complaint raises this inference. Chief Hall's comment to the

City's personnel manager indicates that the chief wanted appellant
out of the police department. In addition, after appellant refused

to reveal the results of his investigation to Sergeants Gipson and

Johnson, they cited him for insubordination. Finally, a comparison

of what the City initially cited as "good cause" (when it notified

appellant of his discharge and his right to a pretermination

hearing), with the "good cause" the City found after the hearing

indicates that appellant was discharged for conduct other than that

cited in the prehearing notice.9 The contrast between the notice

9
The initial notice to appellant recited:

(a) Violation of [police] department rules of conduct
by making false accusations against other officers in
the department;

(b) Insubordination;

(c) Making untrue public statements;

(d) Filing untrue and inaccurate departmental reports;
and,

(e) Making false accusations and [misrepresenting]
facts in a report of an official investigation.

This statement of good cause is taken verbatim from
appellant's complaint. As noted supra, the cause recited in
the eventual discharge order read quite differently. It
and the discharge order suggests that the City arrived at good

cause after the fact and without notice to appellant. From this it

might be inferred, depending on the other evidence in the case,

that the City had committed itself to terminating appellant's

employment whether or not good cause existed. In any event, it

seems clear to us that appellant has created an issue for the

factfinder as to whether his speech played a "substantial part" in

the City's decision to fire him.

Fourth, if the employee shows that the speech was a

substantial motivating factor in the decision to discharge him, the

City must prove by a preponderance of the evidence that it would

have reached the same decision in the absence of the protected

conduct. Id. Whether the City can satisfy this burden is

obviously a matter for another day.

III.

We VACATE the district court's judgment in favor of the City

and the individual defendants in their individual capacities,

insofar as it dismisses the First Amendment claim described above.

We REMAND that claim for further proceedings. Due to the manner in

which appellant has pled his complaint, however, the contours of

that claim may differ when the district court, in narrowing the

recited:

(a) Deliberately stealing, destroying, abusing or
damaging City property, tools, or equipment, or the
property of another employee, citizen or visitor;

(b) Disclosure of confidential city information to
unauthorized persons;

(c) Wilfully disregarding City policies or procedures.
issues, calls appellant's counsel to task and determines precisely

what it is that appellant contends. Our holding, therefore, is

limited to the reading we have given the complaint in this opinion.

We also VACATE the court's dismissal of appellant's pendent

claims and REMAND those claims for further proceedings.

SO ORDERED.

APPENDIX

27. On May 26, 1990, while FIKES was off duty, but was riding

in a patrol car with Sergeant Walter Gipson, a high speed pursuit

originated in the police jurisdiction of the City of Daphne. Due

to the fact that said pursuit was becoming a danger to

non-participants of the pursuit, it was ordered by Sergeant Walter

Gipson to break-off the pursuit. This call to break-off was

witnessed by FIKES. This order to break-off was ignored by Officer

Charlie McNichol, with said high speed pursuit resulting in four

fatalities. The four fatalities were subsequent to the order to

Officer Charlie McNichol to break-off the pursuit.

28. FIKES reported the conduct of Officer Charlie McNichol

regarding the high speed chase to Chief Joe Hall and again in an

Alabama Bureau of Investigation (hereafter referred to as "ABI")

report dated November 22, 1991. As a direct result FIKES was

accused by Chief Joseph Hall (hereafter referred to as "HALL") of

falsifying an official report to the City of Daphne, and of later

stealing said report.

29. Melvin Johnson took a vehicle that had not been properly

condemned and used the vehicle for personal use. Melvin Johnson

was the acting Assistant Chief during this time period. The ABI
determined in their investigation that Melvin Johnson should not

have been using said vehicle for his personal use. HALL

recommended that FIKES be terminated for reporting the improper use

of the vehicle, although it was not out-right stated by HALL that

the recommendation for termination was for reporting the vehicle

matter.

30. Charlie McNichol filed a report containing false

allegations with HALL regarding FIKES' investigation of certain

improprieties within the Daphne Police Department. HALL responded

to said report by informing FIKES to be quiet about the entire

matter.

31. After HALL became aware of the fact that FIKES was

conducting an investigation and was reporting his findings to other

appropriate authorities, to include the ABI, HALL went to the City

Manager and asked the City Manager to "shit-can" FIKES. HALL,

while acting under color of state law devised and initiated a

systematic strategy to eliminate FIKES from the Daphne Police

Department. HALL later stated to others "that he had only fired

one man in the past two-years, and he had fired him, (FIKES),

because he called and had him (HALL) investigated".

32. On November 12, 1991, Sergeant Walter Gipson and Sergeant

Melvin Johnson attempted to interrogate FIKES regarding his

investigation of the improprieties that FIKES had witnessed within

the Daphne Police Department. FIKES responded by informing said

individuals that he would not elaborate unless his attorney was

present along with HALL. Sergeant Walter Gipson and Sergeant

Melvin Johnson responded by citing FIKES for insubordination.