Khan v. So Univ & Agri

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 31, 2007

No. 06-30516 Charles R. Fulbruge III

Clerk

RICHARD EUGENE EARLY,

Plaintiff-Appellee,

v.

SOUTHERN UNIVERSITY & AGRICULTURAL & MECHANICAL

COLLEGE BOARD OF SUPERVISORS; BENJAMIN PUGH; GRADY

MORRIS; JEANETTE WILLIAMS; SAM GILLIAM; JAMES BROWN,

Individually and in His Official Capacity as Chancellor of the Southern

University-Shreveport Campus, and JUANITA MORRIS,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

(00-CV-255)

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:*

Richard Eugene Early, a former officer on the campus police force at

Southern University at Shreveport (“Southern”), filed suit against the above-

named Defendants-Appellants, raising a plethora of claims stemming from his

demotion and eventual firing. On remand from this court’s previous

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 06-30516

consideration of this case in Khan v. S. University & Agric. & Mech. Coll. Bd. of

Supervisors, 2005 WL 1994301 (5th Cir. Aug 19, 2005),1 the district court

determined that Defendants were entitled to qualified immunity on some, but

not all, of the claims raised by Early. Specifically, the district court held: (1)

Defendants were entitled to qualified immunity as to Early’s § 1983 freedom of

association claim, and the related § 1985 and § 1986 claims; (2) Defendants

Juanita Morris and Sam Gilliam were entitled to qualified immunity as to

Early’s § 1981 retaliation and § 1983 free speech and due process claims; and (3)

Defendant Gilliam was entitled to qualified immunity as to Early’s related §

1986 claim. The district court found there were genuine issues of material fact

as to all of Early’s other claims. Defendants timely brought this interlocutory

appeal of the partial denial of their motion for summary judgment.

This court reviews the district court’s denial of summary judgment de

novo. Attenberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (2005). However,

when reviewing a denial of qualified immunity on an interlocutory appeal, the

scope of our review is restricted to the legal conclusions of the district court.

Foley v. University of Houston, 355 F.3d 333, 337 (5th Cir. 2003) (“The district

court’s determination that fact issues are genuine is not appealable. However,

his determination that those fact issues are material, that is, that resolution of

them might affect the outcome of the case under governing law, is appealable”).

Though Defendants note the limited scope of our review, they nevertheless

devoted most of their briefing to issues of fact that we cannot review. We do

address the questions of law raised by Defendants.

First, Defendants argue that Early’s 42 U.S.C. § 1983 free speech claim

should have been dismissed because Early’s free speech rights are limited by the

Supreme Court’s recent ruling in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). In

1

This court fully described the factual and procedural background of this case in Khan,

supra. For the sake of brevity, we adopt the facts as stated in that opinion.

2

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Garcetti, the Court explained that the First Amendment does not shield

employees from discipline in cases where they make expressions pursuant to

their professional duties. 126 S. Ct. at 1962. Reading Defendants’ brief broadly,

they argue that Early was acting pursuant to his professional duties when he

complained of race and sex discrimination against a co-worker. There is no

support in the record for this contention. Accordingly, we reject Defendants’

argument.

Second, Defendants assert that Early’s 42 U.S.C. § 1983 due process

claims should have been dismissed as his due process rights are satisfied by the

post-terminations remedies that are available through Louisiana’s Civil Service

Rules. It is true that meaningful post-deprivation process satisfies due process

when a deprivation results from a “random and unauthorized act” that is not

amenable to pre-deprivation process. Schaper v. City of Huntsville, 813 F.2d

709, 716 (5th Cir. 1987). Defendants, however, did not actually introduce the

Louisiana Civil Service Rules before the district court, and the district court

refused to take judicial notice of the rules. We review the district court’s refusal

to take judicial notice of an “adjudicative fact” for abuse of discretion. Taylor v.

Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998). The district court

indicated that it was unable to discern the Defendants’ position on what hearing,

if any, was conducted, and that it only received conclusory allegations from

Defendants regarding the post-deprivation remedies that were available. In

light of this, we find that the district court’s refusal to take judicial notice of the

Louisiana Civil Service Rules was not an abuse of discretion. Therefore, we

affirm the district court’s holdings regarding Early’s § 1983 due process claims.

Finally, apart from the qualified immunity issues discussed above,

Defendants advance Eleventh Amendment immunity arguments and urge this

court to dismiss Early’s U.S.C. §§ 1981, 1985, and 1986 claims against Southern

and the Defendants in their official capacities. This court has previously

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No. 06-30516

dismissed claims against all Defendants in their official capacities under § 1983.

Khan, 2005 WL 1994301 at *3 n.12.2 In Khan, we did not reach the question of

whether Congress intended to abrogate state sovereign immunity for §§ 1981,

1985, and 1986. We do so now.

Congress can abrogate Eleventh Amendment immunity only when acting

pursuant to § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S.

445 (1976). We have previously held that “Congress did not intend by the

general language of the Civil Rights Act of 1871 to invoke its fourteenth

amendment power.” Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir.

1981) (holding that the district court erroneously denied a motion to dismiss a

§ 1981 claim on the basis of Eleventh Amendment immunity). Sections 1985 and

1986, much like § 1981, were originally adopted as part of the Civil Rights Act

of 1871. However, state officials may be sued for retrospective relief in their

individual capacities, provided they are not eligible for qualified immunity. See

id. Further, in Cory v. White, 457 U.S. 85, 90-91 (1982), the Supreme Court

wrote that Eleventh Amendment immunity does not only apply for claims

seeking monetary judgments from states. Rather, the Court explained, “the

Eleventh Amendment by its terms clearly applies to a suit seeking an injunction,

a remedy available only from equity.” Id. at 91. Accordingly, the Eleventh

Amendment requires that all of Early’s remaining §§ 1981, 1985, and 1986

claims seeking relief from Southern and Defendants in their official capacities

be dismissed. To the extent that Early’s remaining §§ 1981, 1985, and 1986

claims seek are against the Defendants in their individual capacities, we affirm

the determination of the district court regarding qualified immunity.

2

In reaching that decision, we recognized that Southern University is entitled to

Eleventh Amendment immunity absent a waiver of this immunity by the state, and we held

that Louisiana has not waived it. Khan, 2005 WL 1994301 at *2-3.

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No. 06-30516

We therefore DISMISS on Eleventh Amendment grounds all claims

against Southern, and also against all the remaining Defendants in their official

capacity and AFFIRM the district court’s order insofar as it partially denies

summary judgment on qualified immunity grounds. This matter is

REMANDED for further proceedings as needed.

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