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Suissa v. Fulton County, GA

Court: Court of Appeals for the Eleventh Circuit
Date filed: 1996-02-06
Citations: 74 F.3d 266
Copy Citations
18 Citing Cases
Combined Opinion
                      United States Court of Appeals,

                             Eleventh Circuit.

                                No. 94-9222.

      Louise SUISSA and Todd Levent, Plaintiffs-Appellees,

                                       v.

   FULTON COUNTY, GEORGIA, Fulton County Marshal's Department,
Warren H. Shaw, individually and in his official capacity as
Marshal of Fulton County, Defendants,

Tom Hubbard, individually and in his official capacity as Captain
in the Fulton County Marshal's Department, Defendant-Appellant,

 John Boddie, individually and in his official capacity as Major
in the Fulton County Marshal's Department, Howard Billingslea,
individually and in his official capacity as Sergeant in the Fulton
County Marshal's Department, Deleon Ray, individually and in his
official capacity as Captain in the Fulton County Marshal's
Department, Defendants.

                                Feb. 6, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-CV-3036-RHH), Robert H. Hall, Judge.

Before TJOFLAT, Chief Circuit Judge, CARNES, Circuit Judge, and
FAY, Senior Circuit Judge.

     PER CURIAM:

     This   is   an    appeal   from   the   district   court's    denial   of

qualified immunity to Captain Tom Hubbard of the Fulton County,

Georgia,    Marshal's    Department,    on   a   42   U.S.C.   §   1983   claim

involving Hubbard's alleged attempt to influence a departmental

grievance report and an EEOC affidavit prepared by the plaintiff,

Todd Levent.     In Lassiter v. Alabama A & M University, 28 F.3d 1146

(11th Cir.1994), we stated:

     The most common error we encounter [in qualified immunity
     cases], as a reviewing court, occurs on this point: courts
     must not permit plaintiffs to discharge their burden [of
     proving the violation of a clearly established right] by
     referring to general rules and to the violation of abstract
     "rights."
Id. at 1150.        Because the district court committed that "most

common error" in this case, we reverse its denial of Hubbard's

qualified immunity summary judgment motion.

                                      I. FACTS

      Todd Levent and Louise Suissa are deputy marshals with the

Fulton County, Georgia, Marshal's Department.                     Both Levent and

Suissa are Jewish.       On September 7, 1990, Suissa filed an internal

grievance charging that she and Levent had been discriminated

against because of their race.           The discrimination allegedly took

the   form   of    heavier    work     assignments,      substandard       equipment

assignments, and disparaging remarks about Jews and Judaism.

      On September 11, 1990, Chief Deputy Mike Rary asked Levent to

prepare a report of his observations concerning the incidents

discussed in Suissa's grievance.              Later that same day, Hubbard

allegedly    asked    Levent    to     step   into   a   nearby    stairwell     and

attempted, by threatening Levent, to influence how he would write

the report.       Levent did not heed Hubbard's alleged threats.                  On

September    12,    1990,    Levent    submitted     a   report    to   Chief   Rary

thoroughly and truthfully detailing his knowledge regarding the

disparate treatment and harassment alleged in Suissa's grievance.

      On October 18, 1990, Suissa filed a charge of discrimination

with the EEOC.        On August 19, 1991, approximately eleven months

after his alleged conversation with Hubbard in the stairwell,

Levent submitted an affidavit to the EEOC in support of Suissa's

EEOC charge.       Levent's affidavit largely reflected the contents of

his earlier internal report to the Marshal's Department.

       On    December    6,    1991,    Levent   and     Suissa    filed    a   joint
complaint in the United States District Court for the Northern

District of Georgia against Fulton County, Georgia, the Fulton

County Marshal's Department, and various employees of the Marshal's

Department in their individual and official capacities, including

Hubbard.    In their complaint, Levent and Suissa alleged violations

of 42 U.S.C. §§ 1981 and 1983, violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, and a state claim for

intentional infliction of emotional distress. The defendants moved

for summary judgment on various grounds, including on the basis of
qualified    immunity     as   to   those   claims   asserted   against    the

defendants in their individual capacities.                The district court

granted in part and denied in part the defendants' motion for

summary judgment.       The only issue on appeal involves the district

court's     denial   of    qualified    immunity     to    Hubbard   for   his

unsuccessful alleged attempt to influence Levent's departmental

report and EEOC affidavit.1            We have jurisdiction to hear an

     1
      The district court did not rule on whether the defendants
were entitled to qualified immunity on the plaintiffs'
retaliation claim. Instead, the district court denied summary
judgment on this claim on the merits, holding that there was a
genuine issue of material fact as to whether the defendants
retaliated against the plaintiffs for their grievance and EEOC
reports. As we have said before:

            The district court's order declining to rule on the
            qualified immunity issue pending trial effectively
            denies defendants the right not to stand trial.
            Because the "reserved ruling" is not materially
            different from an outright denial of a summary judgment
            motion, an immediate appeal on the qualified immunity
            issue is permissible.

     Collins v. School Bd. of Dade County, Fla., 981 F.2d 1203,
     1205 (11th Cir.1993). Although the defendants could have
     appealed the effective denial of their qualified immunity
     summary judgment motion on the retaliation claim, they have
     not done so. Therefore, we do not reach the question of
interlocutory appeal from a district court's denial of summary

judgment based on qualified immunity. See Mitchell v. Forsyth, 472

U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).                "The

denial of qualified immunity is a question of law to be reviewed de

novo."    Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th

Cir.1995).

                               II. DISCUSSION

        "Qualified immunity protects government officials performing

discretionary functions from civil trials (and the other burdens of

litigation,   including      discovery)     and   from   liability   if    their

conduct     violates    no     "clearly      established       statutory     or

constitutional rights of which a reasonable person would have

known.' " Lassiter, 28 F.3d at 1149 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).

"Although the cases sometimes refer to the doctrine of qualified

"good    faith'   immunity,    the   test    is   one    of   objective    legal

reasonableness, without regard to whether the government official

involved acted with subjective good faith." Swint, 51 F.3d at 995.

"[W]e look to whether a reasonable official could have believed his

or her conduct to be lawful in light of clearly established law and

the information possessed by the official at the time the conduct

occurred."    Id. (alteration in original) (citation and quotation

marks omitted).     "Thus, qualified immunity protects "all but the

plainly incompetent or those who knowingly violate the law.' " Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096,


     whether the defendants are entitled to qualified immunity as
     to the retaliation claim.
89 L.Ed.2d 271 (1986)).

        When a defendant government official raises the defense of

qualified immunity, first he must prove that "he was acting within

the    scope   of    his    discretionary         authority         when    the    allegedly

wrongful acts occurred."               Sammons v. Taylor, 967 F.2d 1533, 1539

(11th Cir.1992).           Levent concedes that Hubbard was acting within

the scope of his discretionary authority.                       Because that component

of qualified immunity is established, "the burden shifts to the

plaintiff to demonstrate that the defendant "violated clearly

established     constitutional           law.'     "      Id.       (quoting      Zeigler      v.

Jackson, 716 F.2d 847, 848 (11th Cir.1983)).

        "If case law, in factual terms, has not staked out a bright

line, qualified immunity almost always protects the defendant. The

line is not to be found in abstractions—to act reasonably, to act

with   probable      cause,      and    so   forth—but         in    studying      how    these

abstractions        have    been       applied     in     concrete         circumstances."

Lassiter, 28 F.3d at 1150 (citations and quotation marks omitted).

       When considering whether the law applicable to certain facts
       is clearly established, the facts of cases relied upon as
       precedent are important. The facts need not be the same as
       the facts of the immediate case.    But they do need to be
       materially similar. Public officials are not obligated to be
       creative or imaginative in drawing analogies from previously
       decided cases.

Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1575

(11th Cir.1992) (Edmondson, J., dissenting), approved en banc, 998

F.2d    923    (11th   Cir.1993).             "For      qualified       immunity         to   be

surrendered, pre-existing law must dictate, that is, truly compel

(not   just    suggest      or   allow       or   raise    a    question       about),        the

conclusion for every like-situated, reasonable government agent
that what the defendant is doing violates federal law in the

circumstances."      Lassiter, 28 F.3d at 1150.   We will address the

attempt to influence the grievance report and the attempt to

influence the EEOC affidavit separately.

             A. Attempt to Influence the Departmental Report

           Levent has not offered, nor have we been able to find, any

case wherein an unsuccessful attempt, through speech, to influence

another's protected speech has been held to violate the First

Amendment. The only cases Levent offers in support of his argument

that Hubbard violated a clearly established First Amendment right

are cases involving retaliation against protected speech.        See,

e.g., Pickering v. Board of Educ. Township High Sch. Dist. 205,

Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811

(1968); Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989),

reh'g denied, 894 F.2d 414 (11th Cir.1990).       Although Levent has

claimed that the defendants retaliated against him for submitting

his departmental report and his EEOC affidavit, that claim is not

before us on this appeal.2     Our focus must, therefore, be a narrow

one:       whether the law was clearly established at the time of

Hubbard's alleged actions that an unsuccessful attempt to influence

speech violates the First Amendment.        The facts of the speech

retaliation cases involve retaliation after speech occurs, which is

not "materially similar" to unsuccessful attempts to prevent or

influence protected speech. Both situations involve speech and the

First Amendment, but that is far too general a level of abstraction

for qualified immunity purposes.      See Lassiter, 28 F.3d at 1150.

       2
        See supra note 1.
Stated somewhat differently, the speech retaliation decisions do

not "dictate, that is truly compel," id., the conclusion that an

unsuccessful attempt to prevent protected speech violates the First

Amendment.     Therefore, the district court should have granted

Hubbard's    motion   for   summary   judgment   on    qualified      immunity

grounds.

              B. Attempt to Influence the EEOC Affidavit

      The same is true of the claim involving Hubbard's alleged

attempt to influence Levent's EEOC affidavit. The district court's

order does not make clear whether it found the evidence sufficient

for a jury to find that Hubbard knew or contemplated that Levent

might be filing an EEOC affidavit, as Levent did eleven months

after Hubbard spoke to him in the stairwell.                However, even

assuming that the district court did find the evidence sufficient

for a jury question on that issue, see Johnson v. Jones, --- U.S.

----, ----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995), it

nonetheless    should   have   granted    Hubbard's    motion   for    summary

judgment on qualified immunity grounds.               Just as no decision

clearly establishes that the First Amendment is violated by an

unsuccessful attempt to influence protected speech in general, none

clearly establishes that it is violated by an unsuccessful attempt

to influence an EEOC affidavit in particular.

                                   III.

     We REVERSE the district court's denial of Hubbard's qualified

immunity summary judgement motion on the claim for attempt to

influence Levent's grievance report and EEOC affidavit, and REMAND

for further proceedings consistent with this opinion.