Shirlie D. Green v. Sheriff Jacquelyn H. Barrett

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 06-15104 ELEVENTH CIRCUIT

MARCH 14, 2007

Non-Argument Calendar

THOMAS K. KAHN

________________________

CLERK

D.C. Docket No. 04-00014-CV-MHS-1

SHIRLIE D. GREEN,

Plaintiff-Appellee,

versus

SHERIFF JACQUELYN H. BARRETT,

individually and in her official capacity,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(March 14, 2007)

Before TJOFLAT, HULL and COX, Circuit Judges.

PER CURIAM:

In this appeal, we consider whether an employer is entitled to qualified

immunity for firing a public employee as a result of testimony the employee gave

pursuant to her official duties. We reverse the district court’s denial of qualified

immunity to the employer.

I. FACTS AND PROCEDURAL HISTORY

On March 26, 2003, Shirlie D. Green, then Chief Jailer at the Fulton County

Jail, testified at an emergency hearing in Fulton County Superior Court. The hearing

had been called at the request of Fulton County Sheriff Jacquelyn Barrett to consider

whether Jamil Abdullah Al-Amin, convicted murderer of a Fulton County deputy

sheriff, should be transferred from the Fulton County Jail to a maximum security state

prison. A week earlier, Al-Amin had attempted to escape from the Fulton County

Jail. Before he was apprehended, security cameras showed Al-Amin opening his jail

cell and moving freely about the jail.

Green testified at the hearing that “many of the cell door locks were either

broken or could be easily jammed by prisoners, including locks in the area of the jail

used to house high-security prisoners such as Al-Amin,” and that “prisoners regularly

let themselves out of the cells at night.” (R.1-12 ¶¶ 25, 26.) Green also testified that

she thought the jail was “unsafe . . . insofar as housing inmates like Al-Amin [was]

concerned.” (R.1-12 ¶ 28.)

The next day, Barrett fired Green. Green’s termination letter gave no reason

for the firing, but Green alleges that Barrett told Green she was being fired because

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of her testimony. (R.1-12 ¶ 33.) In a story published in the Atlanta Journal-

Constitution the day after the firing, Barrett is quoted as saying, “I was so concerned

about that testimony that the chief gave that she was terminated today.” (R.1-12 ¶

35.)

Green sued Barrett, individually and in her official capacity, and Fulton

County, pursuant to 42 U.S.C. § 1983 and Article I, Section I, Paragraph V of the

Georgia Constitution. The amended complaint alleges that Barrett violated Green’s

free speech rights as protected by the First Amendment to the United States

Constitution and the above cited provision of the Georgia Constitution.

Fulton County and Barrett moved for summary judgment. On July 26, 2005,

the district court granted Fulton County’s motion. In the same order, the district court

denied Barrett’s motion, finding that she was not entitled to qualified immunity or

official immunity. Barrett filed a notice of appeal in this court, but her appeal was

dismissed for failure to prosecute.

When the case proceeded in the district court, Barrett renewed her motion for

summary judgment on qualified immunity grounds in light of the newly published

opinion in Garcetti v. Ceballos, ___ U.S. __, 126 S. Ct. 1951 (2006). On September

6, 2006, the district court denied Barrett’s renewed motion, finding that Garcetti did

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not change its conclusion that Barrett was not entitled to qualified immunity. Barrett

appeals the September 6, 2006 order.

II. ISSUE ON APPEAL & STANDARD OF REVIEW

In this interlocutory appeal, we consider whether the district court erred in

denying Barrett qualified immunity on Green’s section 1983 claim. Green argues that

this court does not have jurisdiction to consider the appeal because the parties dispute

questions of fact. However, when considering the merits of the appeal, we may

“accept as true all facts the district court assumed when it denied summary judgment

on qualified immunity grounds.” See Badia v. City of Miami, 133 F.3d 1443, 1445

(11th Cir. 1998) (citations omitted). The district court found that Green’s testimony

“played a substantial role in [Barrett’s] decision to fire” Green. (R.3-97 at 14.)

Accepting that fact, what remains is a purely legal question – whether Barrett is

entitled to qualified immunity for firing Green because of her testimony – that we

have jurisdiction to consider de novo. See Mitchell v. Forsyth, 472 U.S. 511, 530,

105 S. Ct. 2806, 2817 (1985) (“[A] district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a

final judgment.”); Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir. 2003) (“A

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defendant's entitlement to qualified immunity is a question of law to be reviewed de

novo.”).

Though Barrett’s appellate brief raises the question, we do not consider

whether the district court erred in denying her official immunity on Green’s state law

claims. That question is not properly part of this appeal. It was not addressed in the

district court’s September 6, 2006 order, and appeal of the July 28, 2005 order is

untimely.

Neither do we address the question of whether Green’s claims against Barrett,

in her official capacity, are properly a part of the lawsuit. Barrett’s Notice of Appeal

states that she appeals the district court’s order in both her official and individual

capacities. The district court held that this a suit against Barrett in her official

capacity is a suit against the State of Georgia. Because Barrett makes no arguments

on behalf of the state in her briefs and the scope of our review is limited to the

qualified immunity question, we do not discuss this issue.

III. DISCUSSION

We apply a two-step analysis to determine when an official acting within her

discretionary authority1 is eligible for qualified immunity. Saucier v. Katz, 533 U.S.

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The parties do not dispute that Barrett was acting within her discretionary authority when

she fired Green.

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194, 201, 121 S. Ct. 2151, 2156 (2001). First, we ask whether the facts, taken in the

light most favorable to the party asserting the injury, show that the conduct violated

a constitutional right. Id. Second, if a constitutional right was violated under the

plaintiff's version of the facts, we must then determine “whether the right was clearly

established.” Id.

To determine whether Barrett violated Green’s First Amendment right to free

speech, we first determine whether Green’s testimony constitutes speech protected

by the First Amendment. To be protected speech, Green’s testimony must be “fairly

characterized as constituting speech on a matter of public concern.” Connick v.

Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690 (1983). The district court found that

Green’s testimony was speech on a matter of public concern because it pertained to

matters of public safety. (R.3-97 at 12.) We disagree.

Our precedent clearly holds that “[t]he fact that [the communicated]

information may be of general interest to the public . . . does not alone make it of

‘public concern’ for First Amendment purposes.” Morris v. Crow, 142 F.3d 1379,

1381 (11th Cir. 1998) (citing Connick, 461 U.S. at 148 n.8, 103 S. Ct. at 1691 n.8).

The key consideration is the purpose of the communication. Id. at 1381, 1382. If a

public employee plaintiff speaks as a citizen with the purpose of raising a matter of

public concern, then the speech is generally protected, subject to some narrow

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exceptions. Garcetti, 26 S. Ct. at 1958; Morris, 142 F.3d at 1382. However, if a

plaintiff speaks as part of her duties as a public employee, the speech is not protected

by the First Amendment. Garcetti, 126 S. Ct. at 1959-1960; Morris, 142 F.3d at

1382. This distinction is not affected by the fact that the plaintiff made the statements

in testimony. Morris, 142 F.3d at 1383 (“The mere fact that Morris’s statements were

made in the context of a civil deposition cannot transform them into constitutionally

protected speech.”); see also Garcetti, 126 S. Ct. at 1960 (holding broadly “that when

public employees make statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.”).

Green does not dispute that she testified at the hearing because she was the

Chief Jailer, the public employee responsible for the conditions at the jail. Nor does

she contend that the purpose of her statements was to communicate to the public her

concerns about the general safety of the Fulton County Jail or the necessity for

change in the conditions of the jail. Rather, her statements were made in a hearing

conducted for the specific purpose of assessing whether the jail was a safe place for

inmate Al-Amin to be housed.

On these facts, Green’s testimony was given pursuant to her official duties as

Chief Jailer. Therefore, it is not protected by the United States Constitution.

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Barrett’s firing of Green did not violate Green’s First Amendment right to free

speech.

Additionally, even assuming Green’s testimony were considered speech on a

matter of public concern, this was not clearly established by Supreme Court or

Eleventh Circuit precedent at the time Barrett fired Green. Indeed, while there is

Eleventh Circuit precedent supporting the proposition that a public employee may

have a First Amendment interest in testimonial communications made in the context

of investigative proceedings, see Martinez v. City of Opa-Locka, 971 F.2d 708 (11th

Cir. 1992), there is also (as is discussed above) long-standing circuit precedent that

not all communications on matters of general interest to the public enjoy First

Amendment protection, even if those communications are made in the course of

subpoenaed testimony. See Morris, 142 F.3d 1379.

When Green gave her testimony, she was not, as a matter of law, exercising a

clearly established First Amendment right. Therefore, Barrett, in her individual

capacity, is entitled to qualified immunity on Green’s section 1983 claim.

IV. CONCLUSION

For the foregoing reasons, the district court’s order denying Barrett qualified

immunity individually is REVERSED, and the action is REMANDED to the district

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court with instruction to enter judgment in favor of Barrett individually on Green’s

section 1983 claim.

REVERSED AND REMANDED.

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