Bisbee v. Bey

• Decision Date: 03 November 1994
• Docket Number: Nos. 93-8081,93-8087,s. 93-8081
• Citation: 39 F.3d 1096
• Parties: Kenneth L. BISBEE, Plaintiff-Appellee, v. John BEY, in his individual capacity; James Johnson, in his individual capacity; and E.E. VanBuskirk, in his individual capacity, Defendants-Appellants, and Converse County Board of County Commissioners, Defendant. Kenneth L. BISBEE, Plaintiff-Appellant, v. John BEY, in his individual capacity; James Johnson, in his individual capacity; E.E. VanBuskirk, in his individual capacity; and Converse County Board of County Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1096

39 F.3d 1096

Kenneth L. BISBEE, Plaintiff-Appellee, v. John BEY, in his individual capacity; James Johnson, in his

individual capacity; and E.E. VanBuskirk, in his

individual capacity, Defendants-Appellants,

and

Converse County Board of County Commissioners, Defendant.

Kenneth L. BISBEE, Plaintiff-Appellant, v. John BEY, in his individual capacity; James Johnson, in his

individual capacity; E.E. VanBuskirk, in his individual

capacity; and Converse County Board of County

Commissioners, Defendants-Appellees.

Nos. 93-8081, 93-8087.

United States Court of Appeals Tenth Circuit.

Nov. 3, 1994.

Jane A. Villemez, of Graves & Villemez, P.C., Cheyenne, WY, for plaintiff-appellee-cross-appellant.

Hugh L. Kenny, Sr. Asst. Atty. Gen., Cheyenne, WY, for defendants-appellants-cross-appellees John Bey and James Johnson.

Karen A. Byrne, Cheyenne, WY, for defendant-appellant-cross-appellee E.E. VanBuskirk.

Dale W. Cottam (Gary R. Scott, of Hirst & Applegate, on the brief), of Hirst & Applegate, Cheyenne, WY, for defendant-cross-appellee Converse County Bd. of County Com'rs.

Before TACHA, FAIRCHILD ^*, and LOGAN, Circuit Judges.

TACHA, Circuit Judge.

These two appeals result from a suit alleging violations of 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985. Defendants John Bey, James Johnson, and E.E. VanBuskirk appeal in their individual capacities from the district court's decision not to grant them qualified immunity. Plaintiff Kenneth Bisbee cross appeals the district court's grant of summary judgment in favor of the Board of County Commissioners of Converse County ("the county"). In the first appeal, we exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm as to the section 1983 claim while reversing as to the section 1985 claim. We dismiss the second appeal because we decline to exercise discretionary pendent jurisdiction.

I. BACKGROUND

In 1991 plaintiff was employed as a deputy in the Converse County Sheriff's Department. Through a chance encounter, he became suspicious that his supervisor, defendant E.E. VanBuskirk, had misappropriated a rifle. After investigating further, plaintiff filled out an incident report asserting that VanBuskirk had violated the Sheriff Department's operating policies. On July 6, 1991, the dispatcher on duty at the Sheriff's Department assigned the report a case number. The dispatcher then entered a message on the computer recording the report number and stating that it contained "sensitive materials." Plaintiff and his supervisor on duty, Sergeant Greg Way, decided to present the report to Undersheriff James Johnson. They sealed the report by taping the envelope shut. Plaintiff placed the report in the lower tier of the undersheriff's letter baskets. At the time, Undersheriff Johnson was on vacation.

On July 13, 1991, plaintiff and defendant VanBuskirk were involved in a heated confrontation at an investigation site. VanBuskirk claims that he was questioning plaintiff because two officers were sitting together in one car, thereby compromising their ability to split up and respond to calls for assistance in another part of the county. During the argument, VanBuskirk told plaintiff that plaintiff was suspended. Plaintiff responded with a derogatory retort. On July 16, 1991, defendant Sheriff Bey, acting on the recommendation of Undersheriff Johnson and Sergeant VanBuskirk, fired plaintiff.

Plaintiff brought suit against defendants alleging violations of his First and Fourteenth Amendment rights. He relied on the statutory remedies provided by 42 U.S.C. Secs. 1983 and 1985. He also asserted a claim under Wyoming state law. The complaint alleged that defendants had discharged plaintiff for exercising his right to freedom of speech and that his firing denied him due process.

All defendants moved for summary judgment. The individual defendants claimed qualified immunity. Defendants denied responsibility for all claims, stating specifically that they did not know of the incident report until after plaintiff was fired. Instead, defendants claimed, they fired plaintiff for insubordination. The county moved for summary judgment, stating that no evidence linked the county to plaintiff's termination.

The district court granted summary judgment to the county on all claims. With respect to the individual defendants, the district court granted summary judgment on the Fourteenth Amendment and state law claims. The court refused to grant summary judgment for the individual defendants on plaintiff's section 1983 and 1985 claims that alleged infringements of his First Amendment rights.

The individual defendants appeal from the district court's denial of summary judgment on the grounds of qualified immunity. Plaintiff cross appeals the district court's decision to grant the county summary judgment.

II. THE DEFENDANT'S QUALIFIED IMMUNITY CLAIM

A. PLAINTIFF'S 1983 CLAIM

A district court's denial of a motion for summary judgment on qualified immunity grounds is an appealable decision under 28 U.S.C. Sec. 1291. While section 1291 authorizes appeals only from "final decisions," "[t]he entitlement to qualified immunity 'is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.' " Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985)). Therefore "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. Sec. 1291 notwithstanding the absence of a final judgment." Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817.

The district court's denial of qualified immunity is a question of law which we review de novo. Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 891 (10th Cir.1992); Eastwood v. Department of Corrections, 846 F.2d 627, 629 (10th Cir.1988). Under the summary judgment standard, we review the evidence in the light most favorable to the nonmoving party. Eastwood, 846 F.2d at 629.

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Losavio, 847 F.2d at 645. In evaluating defendants' qualified immunity claims, we must first determine whether plaintiff's allegations, if true, state a claim for a violation of a constitutional right that was clearly established when defendant acted. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991).

Plaintiff asserts that he was fired because he reported illegal activity within the Sheriff's Department. Defendants concede that, if plaintiff's allegations are true, he has shown a violation of a clearly established constitutional right. See Mt. Health City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Conaway v. Smith, 853 F.2d 789, 795 (10th Cir.1988). The burden therefore shifts to the defendants to show that summary judgment should be granted because there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Gallegos v. City and County of Denver, 984 F.2d 358, 361 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2962, 125 L.Ed.2d 662 (1993). To defeat a defendant's showing that no material fact exists, "plaintiffs cannot rely on conclusory allegations; they must produce some specific factual support for their claim of unconstitutional motive." Losavio, 847 F.2d at 649.

The court must take four steps in assessing an employment retaliation case asserting a First Amendment right. Each step must be satisfied for a plaintiff to prevail. First, the court must determine that the employee's speech involves a matter of public concern. Melton v. City of Okla. City, 879 F.2d 706, 713 (10th Cir.1989), modified on other grounds, 928 F.2d 920 (10th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991). Second, the court must "balance the interests of the employee in making the statement against the public employer's interests in the effective and efficient fulfillment of its responsibilities to the public." Id. (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). Third, if the balancing test tips in favor of the plaintiff, then he must show "that the protected speech 'was a "motivating factor" in the decision.' " Id. (citing Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576). Fourth, if the plaintiff meets this burden, "the burden then shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected activity." Id. (citing Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576); see also Powell v. Gallentine, 992 F.2d 1088, 1090 (10th Cir.1993) (applying same four-step analysis).

In this appeal, defendants contend that plaintiff has not alleged facts which show that his speech was a motivating factor in the decision to terminate his employment. Examining the facts in the light most favorable to plaintiff, we conclude that he has set forth sufficient evidence to avoid summary judgment against him. A number of facts in the record create the inference that defendants fired plaintiff for filing the stolen property report. At least two persons in the sheriff's office--Sergeant Way and the dispatcher--allegedly read the report, and a third, Deputy Macormic, allegedly received the report and was aware of plaintiff's complaint. The dispatcher assigned a report number to the complaint, which appeared on the office computer. Sheriff Bey acknowledges that Sergeant Way told him the computer...