Carter v. City of Melbourne

Decision Date23 September 2013
Docket NumberNo. 12–15337.,12–15337.
Citation731 F.3d 1161
PartiesFrancis R. CARTER, Jr., Plaintiff–Appellant, v. CITY OF MELBOURNE, FLORIDA, Donald L. Carey, Jack M. Schluckebier, Defendants–Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Frederick Leo Bateman, Jr., Bateman Harden, Tallahassee, FL, Damien H. Prosser, Tucker H. Byrd, Morgan & Morgan, PA, James S. Byrd, Jr., Byrd & Byrd, PL, Orlando, FL, for PlaintiffAppellant.

Gail C. Bradford, Donna Maloney Hansen, Douglas True Noah, F. Scott Pendley, Dean Ringers Morgan & Lawton, PA, Erin Jane O'Leary, Jeffrey S. Weiss, Brown Garganese Weiss & D'Agresta, PA, Orlando, FL, for Robert E. Bonner, David R. Lane, Meier Bonner Muszynski O'Dell & Harvey, PA, Longwood, FL, for DefendantsAppellees.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11–cv–00824–ACC–DAB.

Before BARKETT and MARCUS, Circuit Judges, and HUCK,* District Judge.

PER CURIAM:

Francis R. Carter appeals the district court's grant of summary judgment in favor of the City of Melbourne, Donald L. Carey, and Dr. Jack M. Schluckebier. Carter brought suit under 42 U.S.C. § 1983 after he was fired from the City of Melbourne Police Department for violating department policies. Carter's suit asserts that he was actually fired because he engaged in protected political speech, in violation of his First Amendment rights, and that the City and the individual defendants caused him to be falsely arrested, imprisoned, and prosecuted. Upon review of the record, we conclude that the district court did not err in granting summary judgment in favor of the City and the individual defendants.

I. Background

For the purposes of summary judgment, “our analysis ... must begin with a description of the facts in the light most favorable to the plaintiff and our decision must accept those facts.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir.2013) (quotation marks omitted).

Carter served as an officer in the City of Melbourne Police Department for twenty-two years before he was fired in 2010 and had always been active in the local chapter of the police union and Melbourne politics. It is these activities which he alleges were the impetus for disciplinary actions taken against him and his ultimate firing. As a member of the police union, Carter opposed the decision of the city manager, Dr. Schluckebier, to hire Carey as chief of the police department in 2003. Carter continued his opposition to Carey after becoming president of the Melbourne chapter of the police union in 2009, running on a platform of confronting Chief Carey about morale and disciplinary issues within the police department.

In addition to his union activities, Carter also campaigned for City Council candidates and lobbied members of the City Council, focusing his efforts on issues affecting police officers and attempting to have Chief Carey removed from office. He raised money and publicly campaigned for at least two successful candidates for the City Council, hoping that those candidates would be supportive of police officers and the union's agenda. Carter also cultivated relationships with sitting members of the City Council, meeting with them socially after Council meetings to advocate for the union's interests and to apprise City leaders of what he perceived to be low morale among officers in the police department. Carter also complained in private to City Council members about Chief Carey. Finally, Carter was publicly critical of Dr. Schluckebier's management of the City and picketed Dr. Schluckebier's neighborhood.

The individual defendants deny that they knew about Carter's political and union activities, but the record suggests otherwise, although the extent of their knowledge is unclear. Chief Carey admitted that Dr. Schluckebier alerted to him to the fact that Carter had opposed his candidacy for chief of police and Chief Carey forwarded Dr. Schluckebier a copy of an email that Carter had written in support of specific City Council candidates. Chief Carey also admitted to being generally aware of Carter's political activities regarding City Council candidates and the City Council. For his part, Dr. Schluckebier sent an email to Chief Carey referencing Carter's lobbying of City Council members, specifically referring to those efforts as “improper.” Chief Carey also reported that Dr. Schluckebier was very upset when one of the protests that Carter helped organize targeted his neighborhood.

Starting in November 2009, Carter became the subject of an investigation initiated by the Internal Affairs division of the Melbourne Police Department. Chief Carey instructed Internal Affairs to initiate the investigation after Karen Gregory, Carter's former girlfriend, submitted a complaint that Carter sent her threatening text messages and solicited nude photographs from her. The investigation into Carter's treatment of Ms. Gregory was eventually turned over to the Florida Department of Law Enforcement (FDLE), which ultimately found that the charges were unfounded and the case was dropped in January 2010. Gregory also notified Chief Carey that Carter and other officers used a free apartment to sleep and relax while on duty. An Internal Affairs investigation found that Carter's use of the apartment violated department policy, and issued discipline in the form of an 80–hour suspension without pay.

In January 2010, Internal Affairs Sergeant Dan Lynch began reviewing the dashboard camera videos from Carter's traffic stops and making note of those stops that appeared to lack justification. Chief Carey specifically asked Sergeant Lynch to check for a “pattern of conduct” related to his review of these stops. Sergeant Lynch found an instance where Cartercompleted an improper stop and issued what appeared to be a falsified ticket and found several other instances of potentially improper stops and falsified tickets. Because he identified possible criminal violations, Sergeant Lynch turned over his investigation to the FDLE to investigate whether criminal charges should be brought. After conducting an independent review of the dashboard camera videos, the FDLE obtained a warrant and arrested Carter on charges of official misconduct and falsification of records. On March 25, 2010, the State's Attorney for the 18th Judicial Circuit formally charged Carter with misconduct and falsifying records. Shortly thereafter, the Brevard County Sheriff's Department, which had taken over the Internal Affairs investigation into Carter's traffic stops, found that he had violated Melbourne Police Department policy.

While these investigations were ongoing, the local chapter of the police union notified the City that it had passed a vote of “no confidence” in Chief Carey. Carter took no part in drafting the “no confidence” document or announcing the result of the vote to the City Council or Dr. Schluckebier.

In April 2010, Chief Carey announced that he would retire effective January 3, 2011. However, from April 2010 until retirement, Chief Carey was not working and used a combination of paid sick, vacation, and severance leave. Steve Mimbs was appointed as Acting Chief of the Melbourne Police Department while Chief Carey was on leave. On August 19, 2010, Acting Chief Mimbs formally terminated Carter based on the findings of the Brevard County Sheriff's Department investigation. The State's Attorney later dropped all criminal charges against Carter.

II. Standard of Review

We review de novo a district court's denial of summary judgment, applying the same legal standards that governed the district court. Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir.2012). Summary judgment is appropriate when the record evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). In conducting our review, we are required to view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1143 (11th Cir.2007) (quotation marks omitted).

III. Municipal Liability

We start by addressing whether there is sufficient evidence in the record to conclude that the City of Melbourne could be held liable for any deprivation of Carter's constitutional rights. In Monell v. New York City Dep't of Soc. Servs., the Supreme Court held that local governments can be held liable for constitutional torts caused by official policies. 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability is limited “to acts that are, properly speaking, acts of the municipality—that is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (quotation marks omitted). In determining whether a policy or action represents official municipal policy, the court must determine whether the decision at issue was made by “those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Our Court's decisions have consistently recognized and given effect to the principle that a municipal official does not have final policymaking authority over a particular subject matter when that official's decisions are subject to meaningful administrative review.” Morro v. City of Birmingham, 117 F.3d 508, 514 (11th Cir.1997).

The City argues that none of the personnel, internal affairs, or disciplinary decisions about which Carter complains was made by a final policymaker for the City such that municipal liability attached. The City points out that Carter had available to...

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