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.