The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 30, 2010
Nos. 07-15822 & 09-13847
Non-Argument Calendar JOHN LEY
CLERK
_____________
D.C. Docket No. 06-01696-CV-TWT-1
KEN DIXON,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA,
KEN VANCE, individually,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Georgia
____________
(April 30, 2010)
Before EDMONDSON, BIRCH and HILL, Circuit, Judges.
PER CURIAM:
Ken Dixon brought this action against the Board of Regents of the
University System of Georgia and Ken Vance, individually. He sought damages
and injunctive relief under 42 U.S.C. § 1983 for his termination by defendants,
allegedly in violation of the First Amendment. The district court granted summary
judgment to defendants, and Dixon appealed. After this appeal was before us,
Dixon filed for a stay while certain state proceedings claimed to have the potential
to impact his appeal were pending. A panel of this court granted the stay. After
the conclusion of those proceedings, Dixon filed a Rule 60(b) motion to vacate the
prior summary judgment, which the district court denied. Dixon filed this appeal
of the denial, which was consolidated with his prior appeal.
Our review of the record in this case supports the district court’s conclusion
that Dixon did not proffer sufficient evidence to create a jury question on the issue
of whether he was terminated by defendants for First Amendment protected
speech. Defendants did offer competent evidence that Dixon violated their
internal policies with regard to accessing a co-worker’s computer, and that he was
insubordinate. In view of defendants’ substantial evidence supporting their claim
that they would have taken the same actions in the absence of any protected
speech, the district court’s conclusion that Dixon failed to establish his prima facie
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case of unconstitutional termination was not error.
Furthermore, even if there had been a constitutional violation of Dixon’s
First Amendment rights, Vance, the individual defendant, would have been
entitled to qualified immunity since it was not clearly established that his
termination of Dixon under the circumstances of this case would have constituted
a First Amendment violation. See Anderson v. Burke County, Ga., 239 F.3d 1216,
1222 (11th Cir. 2001) (“[O]nly in the rarest of cases will reasonable government
officials truly know that the termination or discipline of a public employee
violated ‘clearly established’ federal rights”).
The district court also correctly denied Dixon’s Rule 60(b) motion, holding
that Dixon failed to show any substantial change in the factual or legal
underpinning of the facts and circumstances relied upon by the district court in
granting defendants’ motion for summary judgment. See Taylor Woodrow Const.
Corp. v. Sarasota/Manatee Airport Authority, 814 F. Supp. 1072, 1072-73 (M.D.
Fla. 1993). Dixon’s Rule 60(b) motion asserted that a determination by a state
agency to dismiss proceedings against him involving his certification to engage in
law enforcement activities constitutes the required “substantial change” in the
factual or legal underpinnings of the district court’s grant of summary judgment.
We do not agree. The state agency merely decided that there was “insufficient
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evidence” for it to pursue the revocation of Dixon’s certification to engage in law
enforcement activities on the basis of his termination by defendants. This
determination does not constitute a substantial change in the factual or legal
underpinnings of the summary judgment granted in this case. There were no
determinations of fact whatsoever in the state agency’s decision not to pursue the
allegations against Dixon. The agency merely recited that the available evidence
was insufficient to pursue the charges against Dixon. The notification contained
no findings as to what the facts actually were, and most importantly did not find
that Dixon did not engage in the insubordination for which, defendants assert, he
was fired and which the district court held was properly supported by the summary
judgment record. As such, the agency dismissal does not constitute an adequate
basis for holding that the district court erred in denying the Rule 60(b) motion.
Accordingly, the judgments of the district court in these consolidated cases
are
AFFIRMED.
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