Michael Bearden v. Dudley Lemon

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

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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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