Opposition Brief — Martin v. Love-Lane

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: Supreme Court, .3.

No. 03-1569 FILED

Jun 2 4 2004

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jn Che OFFICE OF THE CLERK

Supreme Court of the United States

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DONALD MARTIN, Individually,

Petitioner,

DECOMA LOVE-LANE,

Respondent.

+

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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BRIEF IN OPPOSITION OF RESPONDENT

DECOMA LOVE-LANE

, +

Robert M. Elliot

Counsel of Record

Fredrick W. Evans

ELLIOT PISHKO MORGAN, P.A.

426 Old Salem Road

Winston-Salem, NC 27101

(336) 724-2828

Counsel for Respondent

Pak LEN GROUPS @ One Massachusetts Ave., NW @ Suite 670 @ Washington, DC 20001

(202) 789-2400 @ Fax: (202) 789-1911 www.thelexgroupd:.com

QUESTION PRESENTED FOR REVIEW

Did the United States Court of Appeals for the

Fourth Circuit properly apply prevailing standards of

Rule 56 of the Federal Rules of Civil Procedure in

determining that there are genuine issues of material

fact regarding respondent's free speech claim against

petitioner which entitle respondent to a trial by jury

and in denying petitioner’s qualified immunity

defense?

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TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT ........ eee: 8

The Fourth Circuit Properly Applied Rule 56

Standards in Upholding Respondent's Right to a

Jury Trial on the Facts Underlying her Free

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l. The Fourth Circuit’s application of

Rule 56 standards does not raise any

conflicts with this Court’s decisions in

Saucier v. Katz and Anderson v,.

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2 The Fourth Circuit’s decision does not

conflict with the decisions of other

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x The Fourth Circuit's decision does not

present new federal grounds which

require review by this Court. ................ 19

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TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton,

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Hope v. Pelzer,

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Love-Lane v. Martin, et al.,

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Love-Lane v. Martin, et. al.,

201 F. Supp. 2d 66 (MDI. ZIRE) -.nsentscessincnsesetasrenvens i

Potter v. Columbia Broadcasting System, Inc.,

S68 US. GE SF esti rereenneaienneemen 18

Saucier v. Katz,

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Settlegoode v. Portland Public Schools et al,

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Constitutional Provisions:

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Rules:

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STATEMENT OF THE CASE

Background

DeComa Love-Lane is an African-American

educator who has been employed with the Winston-

Salem/ Forsyth County Schools since 1974. Upon her

employment, school system documents describe her as

“one of the best black prospects . . . ever interviewed,”

who “is very interested in students (white and black)-it

makes no difference.” JA 427. She served as a school

teacher until 1988. JAS 1199.1

In 1988, Love-Lane was promoted to the

position of assistant principal. She was assigned to

Atkins Middle School in Winston-Salem. There, she

worked under principal Don Golding. Love-Lane

excelled in her performance as an assistant principal

during her first assignment at Atkins. During each of

the three years of her assignment, she was evaluated as

excellent or superior in almost all aspects of her

performance. Starting in the second year, her principal

recommended that she be promoted to principal at

some school within the system. Record, Love-Lane Dep.

Exh. 41-43.

From 1991 to 1993, Love-Lane was assigned to

Moore Elementary School as assistant principal. She

worked under principal Dr. Marsha Epstein. During

each of the two years of her assignment, she was

1Citations to the evidence of record will include references

to the Joint Appendix, “JA,” and to the Joint Appendix of sealed

documents, “JAS” filed with the Fourth Circuit; and to other

evidence, as described, in the record below.

evaluated as superior in every aspect of her

performance. In each year, her principal recommended

that she be promoted to principal at some school

within the system. Specifically, Dr. Epstein described

Love-Lane as a “particularly strong and effective

school administrator” who “is ready for a

principalship.” Record, Love-Lane Dep. Exh. 44-45.

From 1993 to 1995, Love-Lane was assigned to

Cook Middle School as assistant principal. There, she

worked under principal Ed Armstrong. Again, Love-

Lane excelled in her performance and _ received

superior evaluations in all aspects of her performance.

She was praised for her ability to “confront issues, not

people;” for her openness “with communication and

with dealing with critical issues;” and for her

“willingness to work with difficult people.” Record,

Love-Lane Dep. Exh. 46-47.

Lewisville Elementary School

During the summer of 1995, Love-Lane received

a new assignment from her superintendent, Dr. Don

Martin. She was assigned to work at Lewisville

Elementary School (“Lewisville”) in Lewisville, North

Carolina. Martin assigned Love-Lane to this position

in spite of recommendations and advice which he had

received from a top assistant superintendent that the

assignment was “not a good choice.” JA 607-608.

Martin insisted that “an African-American presence”

was needed at the school. JAS 1288; JAS 1211-12.

The concern expressed by the assistant

superintendent, Daisy Chambers, was that Love-Lane

would have a difficult time working under principal

Brenda Blanchfield. Ms. Chambers had experienced

severe problems at Lewisville in the two years before

the assignment. Many staff members and parents in

the community had complained to the administration

about Blanchfield’s leadership. Many of the

complaints came from African-American parents and

staff members who had experienced significant

difficulties with Blanchfield which had led to racial

tension.2 JA 362-363; JAS 1164; JA 585-602.

Love-Lane, knowing some of the history of

Blanchfield’s problems, expressed her fears and

concerns to Martin and his assistant, Dr. Joe Johnson.

Nevertheless, she assured Martin that she would do

her best for the school. She asked Martin to monitor

the situation at Lewisville. JAS 1201.

Love-Lane remained at Lewisville for the next

three years. During the school year 1995-1996, Love-

Lane became aware of programs and practices which

she believed were detrimental to the interests of

African-American children. She expressed her

concerns to Blanchfield in a respectful way, but

Blanchfield took no action. During the spring of 1996,

Love-Lane received a superior evaluation from

Blanchfield. JA 452.

Tension grew in Love-Lane’s second year at

Lewisville. Love-Lane observed incidents, policies and

practices which adversely impacted African-American

2The difficulties became so divisive that two assistant

superintendents, Fred Adams and Daisy Chambers, were called to

help resolve the problems. JA 581; JA 1162.

students. Love-Lane repeatedly voiced her concerns to

Blanchfield and others, but received little support. As

she raised such issues more and more, her relationship

with Blanchfield began to deteriorate. Love-Lane’s

expressions of her opinions also led to tension with

certain white teachers on the staff at Lewisville. JAS

1207-1209.

The focal point of Love-Lane’s concern from the

first was the “time-out room” which had_ been

established at Lewisville during Love-Lane’s first year.

The “time-out room” was a small room to which

teachers could send students for any reason deemed

appropriate by the teachers. Students were assigned to

the room for various periods, depending on the teacher

and the infraction. A non-certified part-time staff

member was placed in charge of the room. There is

disputed testimony as to whether the children *vere

given regular academic assignments in the room.

What is not disputed is that the teachers’ arbitrary

disciplinary practices led to the referral of a vastly

disproportionate number of African-American males

and females to the room, many for minor infractions.

JAS 1234-1235; JAS 1170-1196.

Toward the end of Love-Lane’s second year at

Lewisville, she received her annual evaluation. She

received excellent ratings on most of her work.

However, Blanchfield, for the first time, raised

questions concerning Love-Lane’s “communication”

skills. During an evaluation conference, Blanchfield

indicated to Love-Lane that “most” of the staff, which

she estimated at “85% of the teachers,” found her

“intimidating,” and had objections to Love-Lane’s

“direct” style of communication. Pinned down,

Blanchfield narrowed the number of complaining staft

members to several of the teachers, but refused to

provide specific information to Love-Lane concerning

these complaints. JAS 1210; JA 568.

During the same period, Blanchfield was

required to make a recommendation concerning the

renewal of Love-Lane’s administrative contract. She

first recommended that Love-Lane receive a three-year

contract as an assistant principal. Following objections

from Martin, Blanchfield submitted a new

recommendation for a two-year contract. Blanchfield

informed Martin that she no longer wished to work

with Love-Lane. JA 513-514.

Seeing the handwriting on the wall, Love-Lane

repeatedly requested transfers to another school,

starting in 1996. She was not transferred. JAS 1211.

During the third year, Love-Lane’s relationship with

Blanchfield deteriorated further. The decline in her

relationship with Blanchfield was __ directly

proportionate to her speaking out on issues and

incidents involving racial disparities in the treatment of

African-American children. A number of incidents

occurred before and during her third year (1997-1998)

which evidence retaliation against her for speaking out.

JAS 1211-12.

During the early part of the third year, Martin

met with Love-Lane and Blanchfield. During his

meeting: he observed that Blanchfield’s management

skills were deficient and that she had made mistakes in

dealing with Love-Lane. However, he unequivocally

announced his ultimatum that Love-Lane would have

to “satisfy” her principal, Blanchfield, if she were to

continue on an administrative track. He also warned

her that the children should not be her concern; that

she should do what it took to avoid antagonizing

Blanchfield. JA 471-475; JAS 1212.

Love-Lane made reasonable efforts to get along

with Blanchfield and other teachers who had found

fauit in Love-Lane’s communication. JA 427.

Nevertheless, Love-Lane continued to address issues

involving African-American children. As a result, a

small faction of teachers complained against Love-

Lane. JAS 1212-1213.

At the end of the year, Blanchfield transmitted a

draft ot her evaluation of Love-Lane to Martin. She did

not present a copy to Love-Lane. The evaluation rated

Love-Lane “below standard” and “unsatisfactory” in a

1 umber of areas of performance, based primarily on

Love-Lane’s “communication.” JA 476. Based on the

draft, Martin issued a directive recommending the

demotion of Love-Lane to teacher. JA 481. Martin's

assistant delivered the demotion decision and Love-

Lane’s evaluation to Love-Lane on the same date. No

effort was made by Martin to speak with Love-Lane

concerning the evaluation prior to making his decision.

JAS 1290.

Love-Lane grievea the decision of Martin before

a committee of the school board. Record, Brown Dep.

Exh. 95. A split committee voted to support Martin's

recommendation, and the full board approved the

decision thereafter. Record, Brown Dep. Exh. 95-96.

Love-Lane was assigned to teach at a high

school within the system where she has been working

since that time. She continues to excel as a

schoolteacher, but as a result of speaking out on issues

and incidents involving racial disparities in the

treatment of African-American children, Love-Lane has

lost any opportunity to pursue her career aS an

administrator. JAS 1216.

Proceedings Below

On August 26, 1999, respondent filed suit in the

United States District Court for the Middle District of

North Carolina. She alleged several claims against

petitioner and the Winston-Salem/ Forsyth County

Board of Education (“the Board”), including her

primary claim that she had been denied her rights

under the First Amendment through free speech.

Following discovery, petitioner and the Board filed

their motions for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure. On March

26, 2002, the district court issued its opinion dismissing

all of respondent's claims. See Love-Lane v. Martin, et.

al., 201 F. Supp. 2d 66 (MDNC 2002).

A divided panel of the Fourth Circuit reversed

the district court’s dismissal of respondent's free

speech claim against petitioner? Love-Lane v. Martin, et

3The Fourth Circuit affirmed summary judgment on all

other claims, including respondent's claims against the Board.

Respondent has filed a conditional cross-petition for a writ of

certiorari pursuant to Rule 12.5 of the Supreme Court Rules

regarding the Fourth Circuit decasion affirming the district court's

dismissal of respondent's free speech claim against the Board.

al., 355 F.3d 756 (4" Cir. 2004). The majority (Judges

Michael and Gregory), in a well-reasoned decision,

properly analyzed the summary judgment standards

under Rule 56, and recognized that there were genuine

issues of material fact with regard to respondent's free

speech claim against petitioner. 355 F.3d at 775-782.

(Judge Wilkinson dissented with respect to this

determination) [Pet. App. 41a].

REASONS FOR DENYING THE WRIT

“Review on a writ of certiorari is not a matter of

right, but of judicial discretion.” Sup. Ct. R. 10. “A

petition for a writ of certiorari will be granted only for

compelling reasons.” Id. “A petition for a writ of

certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Id.

Petitioner has presented nc compelling reasons

justifying this Court’s exercise of its judicial discretion

to review the Fourth Circuit's decision. There is no

conflict between the Fourth Circuit’s decision and

decisions of this Court; there is no conflict between the

Fourth Circuit’s application of Constitutional

principles and the application of the law by courts in

other circuits; and this case presents no pressing need

for this Court to address the issues decided by the

Fourth Circuit.

To the contrary, the Fourth Circuit properly.

applied well-settled principles of law —including those

‘The opinion of the Fourth Circuit will be cited by

reference to petitioner's appendix.

regarding summary judgment, the Constitution and 42

US.C. § 1983—to the voluminous evidence presented

in this case. Petitioner merely seeks to contest the

application of this well-settled law to the facts, an

objective which should not provide a basis for this

Court's “rarely granted” discretionary review.

The Fourth Circuit Properly Applied Rule 56

Standards in Upholding Respondent's Right to a Jury

Trial on the Facts Underlying her Free Speech Claim

The petitioner, Martin, seeks review of the

Fourth Circuit’s decision denying summary judgment

to Martin on the basis of his qualified immunity

defense. In doing so, petitioner relies on two decisions

of the Court which present the qualified immunity

defense in the very different context of the Fourth

Amendment. See Saucier v. Katz, 533 U.S. 194 (2001),

and Anderson v. Creighton, 482 U.S. 635 (1987). As will

be shown, the Fourth Circuit's decision does not

conflict with these or any other decisions of this Court

or the principles established by this Court for the

consideration of the qualified immunity defense.

In fact, the Fourth Circuit’s decision has much

more to do with the application of standards under

Rule 56, Fed. R. Civ. Proc., than any earthshaking

analysis of the defense of qualified immunity. It is

clear from the Court's detailed opinion that the court

understood its role to review, de novo, the district

court’s grant of summary judgment to petitioner; and

in doing so, to view and consider Love-Lane’s evidence

in the light most favorable to the plaintiff. After

undertaking its painstaking analysis of the evidence,

10

applying the elements of a plaintiff's claim under the

First Amendment, and the elements of the qualified

immunity defense, the majority found that summary

judgment was inappropriate.

The petitioner does not question the Court's

analysis in terms of the elements considered or the law

to be applied. Instead, petitioner makes a factual

argument, couched in the language of certiorari

standards, in his effort to convince this Court that

review shoula be granted. Indeed, this case is purely

and simply cne involving factual conflicts which must

be resolved by a jury at trial.

That the focus of the Fourth Circuit’s decision is

Rule 56 rather than the substantive application of free

speech or qualified immunity principles is made clear

from the outset of the majority opinion:

In reviewing the summary judgment, we

view the facts in the light most favorable

to Love-Lane, the non-moving party,

drawing all justifiable inferences in her

favor. Anderson v. Liberty Lobby, Inc. 477

U.S. 242, 248-49, 91 L.Ed. 2d 202, 106 S.

Ct. 2505 (1986). The dissent does the

opposite: it ignores the best of Love-

Lane’s evidence and states the facts in the

light most favorable to the Board and

Martin. This mistaken approach, of

course, allows the dissent to say that this

case involves nothing more than a

superintendent's “decision to separate...

two administrators embroiled in a

11

personality conflict.” Post at 33-34. This

case involves much more than a

personality conflict when the facts are

viewed, as they must be, in Love-Lane’s

favor: it involves a superintendent who

demoted an assistant principal because

she spoke out against race discrimination

and discipline at a public school.

355 F.3d at 775. [Pet. App., p. 14a] As foreshadowed,

the two opinions of the Fourth Circuit then diverge, not

on any substantive application of this Court's

precedent, but on the facts.

Viewing the facts in the light most favorable

Love-Lane, the majority finds that Love-Lane

established the elements of her free speech claim in

showing that (1) she spoke out on a matter of public

concern; (2) that her interest in free speech outweighed

her employer's interest in the efficient operation of the

school; and (3) that her protected speech was a

substantial factor in petitioner’s decision to demote her.

355 F.3d at 776. [Pet. App., p. 15a] The dissent, on the

other hand, applying the same standards under its own

view of the evidence (in the light most favorable to

Martin), essentially argues the facts and concludes that

Love-Lane’s speech on_ personal concerns

predominated, and created disruption to the

workplace, which ultimately motivated Martin's

decision to demote her. [Pet. App., pp. 41a-63a].

The same factual divergence is shown with

respect to the analysis of petitioner's qualified

immunity defense. The majority, emphasizing that the

12

ultimate burden will be on Love-Lane to convince a

jury of her case, finds, independently, for summary

judgment purposes, that her rights to speak out on a

matter of public concern - racial discrimination in the

public schools - was clearly established and “that any

reasonable school superintendent in Martin's position

in 1997 and 1998 would have realized that he would

violate the Constitution if he, in fact, took adverse

employment action against Love-Lane for speaking out

about race discrimination at Lewisville Elementary

School.” 355 F.3d at 784 [Pet. App., p. 3la]. Again, the

dissent argues the facts from petitioner’s evidence, on

which it concludes that Martin proved his qualified

immunity as a matter of law.

While the parties - and more importantly the

majority and dissenting opinions of the Fourth Circuit

- diverge on their application of Rule 56 standards,

their views do not implicate any conflicts with First

Amendment and qualified immunity jurisprudence of

this Court. Again, this is purely and simply a factual

contest which should and must ultimately be

determined by the jury. And since the majority

specifically articulated the facts—in the light most

favorable to plaintiff—on which it based its reversal,

there is simply no “compelling reason” for review.

1. The Fourth Circuit’s application of Rule

56 standards does not raise any conflicts

with this Court’s decisions in Saucier v.

Katz and Anderson v. Creighton.

In Saucier v. Katz 533 U.S. 194 (2001), this Court

- found that a law enforcement officer was entitled to the

13

qualified immunity defense based on the facts

presented, which were largely undisputed. The

plaintiff in the case was an animal rights advocate who

was protesting experimental practices against animals

on grounds which were being converted from a

military base where the practices had taken place to a

national park. The forum for the speech was an event

dedicating the park grounds, at which Vice President

Gore, among others, was speaking. The evidence

showed that the plaintiff, during the ceremony, walked

to a barrier separating the speakers, and held up a

banner of protest, and was immediately shepherded

away by the military police. Plaintiff claimed that the

officer used excessive force in placing him in the police

vehicle.

This Court found, as a matter of law, that the

officer, in his individual capacity, had established his

qualified immunity defense in that he had followed

standard police policies in preventing incidents at such

events, and in placing the plaintiff into the vehicle.

Since there was no convincing evidence of excessive

force,» viewed under any standard, the Court found

that a reasonable officer in the defendant's position

would not have known that he had violated the

plaintiff's clearly established rights to be free from such

force.

This Court was clearly unconvinced that a constitutional

violation had taken place (“it is doubtful that the force used was

excessive,” 533 U.S. at 208) which led to its decision that the officer

was not on notice that he was acting in violation of clearly-

established law.

14

Saucier stands for the well-established principle

that where the material facts are undisputed, the court

immunity defense. The difference in the two cases is,

as the Fourth Circuit opinions make clear, the

difference in the construction of the facts. The material

facts in the present action are directly, and in many

instances, hotly disputed. The facts in Saucier were not.

The facts in this case, viewed in the light most

favorable to plaintiff, establish a constitutional

violation. The facts in Saucier did not.

This Court’s decision in Anderson v. Creighton,

482 U.S. 635 (1987), is equally inapplicable to any legal

issues raised in this case. Anderson, like Saucier,

involved a claim of a violation of the Fourth

Amendment. The plaintiff homeowners alleged that

the individual defendant officer had conducted a

forced warrantless search of their home. The

defendant officer asserted qualified immunity, alleging

that he acted under the belief that he had probable

cause. The district court granted summary judgment

in favor of the defendant, and the Eighth Circuit

reversed.

The issue presented to the Supreme Court was

whether the test of qualified immunity merged with

the test under the Fourth Amendment requiring that

the facts be viewed through the eyes of a reasonable

officer. This Court held that there are two distinct

determinations which require independent analyses of

the facts. Initially, the court must determine whether

there was a constitutional violation. Then, upon

consideration of the qualified immunity defense, the

15

court must apply a distinct test determining whether

the constitutional violation was clearly established and

whether a reasonable officer would or should have

known that his actions violated the clearly-established

law. The court remanded the action to the Eighth

Circuit for reconsideration of the issues.

The majority in the present case clearly and

demonstrably followed this Court's established

methodical framework in considering petitioner

Martin’s claim for qualified immunity, consistent with

the principles of Andersun and Saucier. In Saucier, the

Court advised:

Taken in light most favorable to the party

asserting the injury, do the facts alleged

show the officer’s conduct violated a

constitutional right? [citation omitted]. In

the course of determining whether a

constitutional right was violated on the

premises alleged, a court might find it

necessary to set forth principles which

will become the basis for a holding that a

right is clearly established.

533 US. at 201.

Similarly, the Fourth Circuit articulated the test

of qualified immunity, applied it to the facts, and

determined that Martin was not entitled to the defense.

16

To determine whether Martin is entitled

to qualified immunity, we must (1)

identify the right allegedly violated, (2)

consider whether at the time of the

alleged violation the right was clearly

established, and (3) determine whether a

reasonable person in Martin's position

would have known that his actions

would violate that right. Wilson v. Layne,

141 F.3d 111, 114-15 (4th Cir. 1998). We

conclude that Martin is not entitled to

qualified immunity.

355 F.3d at 783.

As instructed in Saucier, the court then

determined, based on its prior analysis, that “by 1997 it

was Clearly established that Love-Lane’s speech about

race discrimination at Lewisville involved a matter of

public concern.” 355 F.3d at 784. Noting that Love-

Lane’s speech had not affected the welfare of the the

Lewisville students, the Court emphasized that “we are

persuaded that the interests to be balanced under

Pickering weigh so heavily in Love-Lane’s favor that

her right to speak about race discrimination in a public

school was clearly established well before 1997 and

1998.” Id.

Addressing the final element of the qualified

immunity defense, the Court determined that

defendant Martin, or any reasonable superintendent,

would have known that demoting Love-Lane for

speaking out about race discrimination at Lewisville

would violate her rights:

17

Because case law had confirmed Love-

Lane's right to speak and because the

Pickering balancing test tips decidedly in

er favor, we hold that any F&8SSRaBis

school superintendent in Martin's

position in 1997 and 1998 would have

realized that he would violate the

Constitution if he, in fact, took adverse

employment action against Love-Lane for

speaking out about race discrimination at

Lewisville Elementary School.

355 F.3d at 784. Based on this analysis, the Fourth

Circuit reversed “the district court’s determination that

Martin is entitled to qualified immunity with respect to

the Love-Lane’s free speech claim.” 355 F.3d at 785.

Petitioner, citing repeatedly to Judge

Wilkinson's dissent, claims that the Fourth Circuit

failed to considered “undisputed evidence” which

would have weighed in favor of petitioner’s defense.

As with respect to so many of the facts tossed back and

forth between the majority and the dissent, the

evidence cited by petitioner is not only disputed, but

sharply disputed.

Again, petitioner's argument raises the

contrasting approaches employed by the respective

parties and the majority and dissent in the Fourth

Circuit. Petitioner essentially argues that facts may be

assumed by the courts where there are clear issues of

credibility. Respondent, in line with the majority of the

Fourth Circuit, contends otherwise—that it is for the

jury to resolve issues of fact including issues of

18

credibility. Recognizing the difficulties which are

presented in factual determinations of such elements as

motive, bias and intent, this Court has warned: “Where

motive and intent play leading roles, the proof is

largely in the hands of alleged conspirators and hostile

witnesses ... (T)rial by affidavit is no substitute for trial

by jury ....” Potter v. Columbia Broadcasting System, Inc.,

364 U.S. 464, 473(1962). See also Hope v. Pelzer, 536 U.S.

730 (2002).

Viewing this case for what it is—a_ factual

contest—the Fourth Circuit properly concluded that it

“involves much more than a personality conflict when

the facts are viewed, as they must be, in Love-Lane’s

favor: it involves a superintendent who demoted an

assistant principal because she spoke out against race

discrimination and discipline at a public school.” 355

F.3d at 775. [Pet. App., p. 14a].

The Fourth Circuit’s decision does not violate

the principles established by this Court in Saucier or

Anderson. Through their repeated references to

conclusory characterizations of Love-Lane’s conduct

with such red-flag descriptives of “unprofessional,”

“divisive,” “uncooperative,” “disruptive,” “tactless,”

and the like, untested in most instances by cross-

examination or specific explanation, or the tests of

credibility to be applied by an independent factfinder;

petitioner, like the dissent in the Fourth Circuit, seeks

to transform a traditional factual contest, which shouid

and must be tried by a jury, into a case of misconstrued

law. This Court’s rules admonish against such an

effort.

19

2. The Fourth Circuit’s decision does not

conflict with the decisions of other

circuits.

The Fourth Circuit's decision in this action does

not conflict with the legal principles which guide all of

the circuits. Those principles have their source in the

Constitution and Rule 56. While some courts may

come to different conclusions in reviewing the facts of

varying cases, their legal roadmap is the same. See, e.g.,

Settlegoode v. Portland Public Schools et al, 362 §.3d 1118

(9th Cir. 2004).

There is no conflict among the circuits as to the

application of an analysis of the facts concerning

qualified immunity.

a The Fourth Circuit’s decision does not

present new federal grounds which

require review by this Court.

The Fourth Circuit’s decision presents no new

federal grounds which require, or even invite, review

by this Court. The decision is, purely and simply, an

analysis of the facts concerning established principles

of qualified immunity, pursuant to the principles of

Rule 56. The court followed the established rules of

this Court, which are not in controversy. See Hope v.

Pelzer, 536 U.S. 730 (2002).

CONCLUSION

Certiorari is not justified in this action. The

Fourth Circuit applied the Constitutional principles,

while conforming to the standards of Rule 56. There is

20

no conflict with decisions of this Court or other circuit

courts. Because there are no grounds for granting

review, this Court should deny the petition for a writ

of certiorari. |

Respectfully submitted,

this the 21st of June, 2004.

Robert M. Elliot

(Counsel of Record)

Fredrick W. Evans

Elliot Pishko Morgan, P.A.

426 Old Salem Road

Winston-Salem, NC 27101

(336) 724-2828

Counsel for Respondent