Aspinwall v. Herrin, Civ. A. No. 293-6.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtALAIMO, Senior
Citation879 F. Supp. 1227
PartiesMarlene H. ASPINWALL, Collice F. Brannen, Sr., Jesse H. Brantley, Earl Callaway, John G. Carter, Pauline Dart, Jerry W. Dowling, James C. Grant, Vicky H. Greatheart, Curtis A. Hand, Michael E. Hargrove, Raymond House, II, Dale B. Lamb, Daniel G. Leger, Ollie O. McGahee, III, Joseph Naia, Carlton M. Spell, Keith C. Wright, Plaintiffs, v. David HERRIN, in his official capacity as Sheriff of Wayne County and Individually, and Kenny Poppell, as Deputy Sheriff of Wayne County and Individually, Defendants.
Docket NumberCiv. A. No. 293-6.
Decision Date27 December 1994

879 F. Supp. 1227

Marlene H. ASPINWALL, Collice F. Brannen, Sr., Jesse H. Brantley, Earl Callaway, John G. Carter, Pauline Dart, Jerry W. Dowling, James C. Grant, Vicky H. Greatheart, Curtis A. Hand, Michael E. Hargrove, Raymond House, II, Dale B. Lamb, Daniel G. Leger, Ollie O. McGahee, III, Joseph Naia, Carlton M. Spell, Keith C. Wright, Plaintiffs,
v.
David HERRIN, in his official capacity as Sheriff of Wayne County and Individually, and Kenny Poppell, as Deputy Sheriff of Wayne County and Individually, Defendants.

Civ. A. No. 293-6.

United States District Court, S.D. Georgia, Brunswick Division.

December 27, 1994.


879 F. Supp. 1228
COPYRIGHT MATERIAL OMITTED
879 F. Supp. 1229
COPYRIGHT MATERIAL OMITTED
879 F. Supp. 1230
James Allen Chamberlin, Jr., Brunswick, GA, O. Hale Almand, Jr., Macon, GA, for plaintiffs

Terry Lee Readdick, Richard K. Strickland, Brunswick, GA, for defendants.

ORDER

ALAIMO, Senior District Judge.

On January 12, 1993, Plaintiffs brought this federal question action under 42 U.S.C. § 1983 against Defendants, David Herrin ("Herrin") and Kenny Poppell ("Poppell"), in both their individual and official capacities. Plaintiffs are former and current Wayne County Deputy Sheriffs who claim they were wrongfully terminated from their jobs by Herrin when he became Sheriff of Wayne County. Herrin is the Sheriff of Wayne County and Poppell is a deputy sheriff.

Title 42 U.S.C. § 1983 provides a civil action for persons claiming violations of their rights secured by either the Constitution or by federal laws, "broadly encompassing violations of federal as well as constitutional law." Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980).1

Plaintiffs allege that Herrin denied their property rights and liberty interests in continued employment in violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution, violated their First Amendment rights of free speech and freedom of association, committed intentional infliction of emotional distress, tortiously interfered with their employment contracts, and retaliated against Plaintiffs because of their involvement in this lawsuit. Plaintiff, Daniel G. Leger ("Leger"), alleges that both Herrin and Poppell violated his right to privacy by Poppell's warrantless search of Leger's residence. Plaintiffs seek back pay, compensatory and punitive damages, attorneys' fees and expenses.

This case is presently before the Court on Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, summary judgment for Defendants will be GRANTED in part and DENIED in part.

FACTS

Sheriffs in Georgia are constitutional officers, and have traditionally held the sole power to hire and fire deputies. O.C.G.A. § 15-16-23 states that "sheriffs are authorized in their discretion to appoint one or more deputies." In 1983, the Georgia Constitution was amended to authorize the creation of county civil service systems, which may apply to employees of elected county officials, including sheriffs.2 In 1988, the Wayne County Board of Commissioners (the "Board") created a county civil service system which applied to all employees of the

879 F. Supp. 1231
Sheriff's Department, and permitted termination only for cause.3

Plaintiffs were employees of the Wayne County Sheriff's Department under Sheriff Warren. They were all sworn deputy sheriffs, working in various positions. Specifically, Plaintiffs, Marlene H. Aspinwall ("Aspinwall") and Dale B. Lamb ("Lamb"), were secretaries; Plaintiff, Collice F. Brannen, Sr. ("Brannen"), was a bailiff; Plaintiffs, Jesse H. Brantley, Jerry W. Dowling, Michael E. Hargrove, Raymond House, II, and Keith C. Wright were road deputies; Plaintiff, Earl Callaway ("Callaway") was a detective; Plaintiff John G. Carter ("Carter") was chief deputy; Plaintiffs, Pauline Dart ("Dart"), James C. Grant ("Grant") and Carlton M. Spell ("Spell"), were detention officers; Plaintiff, Vicky H. Greatheart ("Greatheart"), was assistant jail administrator; Plaintiff, Curtis A. Hand ("Hand"), was chief jail administrator; Leger was an undercover drug officer; Plaintiff, Ollie O. McGahee ("McGahee"), was a road deputy and D.A.R.E. (school anti-drug program) officer; and Plaintiff, Joseph Naia ("Naia"), was chief detective.

In 1992, Herrin ran for Sheriff of Wayne County. He defeated then-Sheriff Warren in the Democratic primary, and went on to win the general election. Plaintiffs either supported Sheriff Warren or remained neutral in the election. Carter made a radio commercial supporting Sheriff Warren, Greatheart went door to door with Sheriff Warren's campaign literature, Brannen campaigned for Sheriff Warren, and Dart helped mail campaign literature for Sheriff Warren.

After his election, Herrin was informed by county attorney, Mac Hall, and County Administrator, Joe Pritchard, that the Sheriff's Department was subject to the Wayne County personnel policy and that employees could only be terminated for cause. Herrin indicated to the Board that he would not retain all of Sheriff Warren's employees. Herrin did not believe the merit system applied to the Sheriff's Department. He also stated in the press that he would carry out his campaign promise of change in the Sheriff's Department, including the use of lie detector tests and drug and alcohol screenings on old and new employees. (Wayne County Press Sentinel, Dec. 30, 1992).

Many Sheriff's Department employees became concerned about losing their jobs. Thirteen employees, all of them Plaintiffs in the instant case, contributed money to a "legal fund," planning to enforce their rights under the merit system if terminated.

On January 1, 1993, Herrin took office as Sheriff of Wayne County. He notified each of the 18 Plaintiffs in writing that he or she was not being reappointed as a deputy sheriff. Herrin gave no reason for termination in any letter. He subsequently commented that he was replacing those who he did not believe did a good job under Sheriff Warren, (Savannah News, January 4, 1993), and that there were several employees "he couldn't trust or work with." (Savannah News, January 9, 1993). He also asked anyone to contact him who had knowledge of missing Sheriff's Department items, including pistols and walkie-talkies. (Wayne County Press Sentinel, January 24, 1993).

On January 8, 1993, Deputy Sheriff Poppell was asked by Sheriff Herrin to locate Leger. Leger was an undercover drug officer in the Sheriff's Department. Poppell and Herrin contend they were looking for Leger out of concern for his well-being. Leger had not been seen since December 24th or 25th, had not reported to a meeting on January 1,

879 F. Supp. 1232
1993, and did not answer his telephone, pager, or cellular phone. Leger argues that Poppell and Herrin only sought to recover any Sheriff's Department property Leger might have. Poppell did not check Leger's personnel file, which indicated that Leger had been granted leave, and did not contact Leger's supervisor, former Sheriff Warren, the County Administrator, or Leger's family concerning his whereabouts

Poppell went to Leger's apartment, where the manager confirmed that Leger had not been seen for some time, and that his car had not been moved. After calling the owner of the apartments, Poppell and the manager entered Leger's apartment. The parties dispute whether Poppell told the manager and owner that he was concerned for Leger's well-being, and whether Poppell said he would get a search warrant, if necessary.

After determining Leger was not present in the apartment, Poppell removed several items belonging to the Sheriff's Department and left the premises. Herrin later instructed Poppell to return the items, which he did. Poppell and Herrin contend the items were taken back to the apartment so that Leger could return all Sheriff's Department property at one time. Leger, on the other hand, believes that Herrin and Poppell contacted the District Attorney, learned that they could not take the items without permission or a search warrant, and then decided to return the items.

On January 4, 1993, Plaintiffs filed grievances with the County Administrator objecting to their termination. On January 6, 1993, Wayne County filed suit in Wayne County Superior Court against Sheriff Herrin and his newly appointed deputies, seeking to return the Plaintiffs to work and to terminate the new deputies. Wayne County continued to pay all Plaintiffs their regular salary while they worked at different County jobs.

Some Plaintiffs obtained other employment. Aspinwall worked briefly for the County, then worked at Belk's department store and an attorney's office. Leger went to work for the Savannah Police Department on March 1, 1994. McGahee became a Wayne County Probation Officer. Spell worked for the City of Jesup Police Department. Grant had a heart attack on August 6, 1993, and was unable to work. He was paid by the County until May, 1994.

Callaway, Naia, Hand and Greatheart were placed by Wayne County in either the District Attorney's or Solicitor's office. On July 6, 1993, Herrin sent letters to the District Attorney and Solicitor stating that the Sheriff's Department would not "recognize or work with any members of the old Sheriff's staff that you have employed with you."

Judge Taylor of the Wayne County Superior Court held that Sheriff Herrin "acted within his authority under Georgia law in failing to re-appoint certain employees of the Wayne County Sheriff's Office upon his assumption of office." Wayne Co. v. Herrin, Wayne County Superior Court, Civil Action No. 93-CV-0009, Order of February 2, 1993. The Georgia Court of Appeals reversed Judge Taylor's ruling and found that Herrin was bound by the provisions of the Wayne County personnel system. On February 25, 1994, Judge Taylor ordered that Plaintiffs be reinstated.

Only three Plaintiffs did not return to...

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4 practice notes
  • Allen v. Kline, Civil Action No. 07-2037-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 23, 2007
    ...174 F.3d 1136, 1142-43 (10th Cir.1999); Jones v. City of Topeka, 790 F.Supp. 256, 260 (D.Kan.1992); see also Aspinwall v. Herrin, 879 F.Supp. 1227, 1234-35 12. Although Johnson County lacks authority to reinstate plaintiffs, it apparently has authority to conduct the grievance hearings and ......
  • Harter v. Vernon, Civil No. 3:95CV75.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 22, 1996
    ...990 n. 7 (N.D.Ind.1985) (holding that there is a right to remain neutral in politics and other speech). But see Aspinwall v. Herrin, 879 F.Supp. 1227, 1238 (S.D.Ga.1994) (holding that silent political neutrality is not speech on a matter of public Vernon has cited Olivo v. Mapp, 57 F.3d 106......
  • Calvert v. Hicks, No. 1:04-cv-1257-WSD.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • January 18, 2007
    ...by Alabama or Florida law. See Wayne County v. Herrin, 210 Ga.App. 747, 437 S.E.2d 793, 799 (1993); see also Aspinwall v. Herrin, 879 F.Supp. 1227 (S.D.Ga.1994). Contrary to the unlimited authority described in the cases relied upon by Defendants, the authority of the Clerk of Fulton County......
  • Cockrell v. BOARD OF REGENTS OF NMSU, No. 19,417.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 7, 1999
    ...(qualified immunity granted when it was unclear whether maintenance supervisor had implied contract of employment); Aspinwall v. Herrin, 879 F.Supp. 1227, 1235 (S.D.Ga.1994) (unclear whether sheriff deputies fit within county personnel merit system and therefore sheriff entitled to qualifie......
4 cases
  • Allen v. Kline, Civil Action No. 07-2037-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 23, 2007
    ...174 F.3d 1136, 1142-43 (10th Cir.1999); Jones v. City of Topeka, 790 F.Supp. 256, 260 (D.Kan.1992); see also Aspinwall v. Herrin, 879 F.Supp. 1227, 1234-35 12. Although Johnson County lacks authority to reinstate plaintiffs, it apparently has authority to conduct the grievance hearings and ......
  • Harter v. Vernon, Civil No. 3:95CV75.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 22, 1996
    ...990 n. 7 (N.D.Ind.1985) (holding that there is a right to remain neutral in politics and other speech). But see Aspinwall v. Herrin, 879 F.Supp. 1227, 1238 (S.D.Ga.1994) (holding that silent political neutrality is not speech on a matter of public Vernon has cited Olivo v. Mapp, 57 F.3d 106......
  • Calvert v. Hicks, No. 1:04-cv-1257-WSD.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • January 18, 2007
    ...by Alabama or Florida law. See Wayne County v. Herrin, 210 Ga.App. 747, 437 S.E.2d 793, 799 (1993); see also Aspinwall v. Herrin, 879 F.Supp. 1227 (S.D.Ga.1994). Contrary to the unlimited authority described in the cases relied upon by Defendants, the authority of the Clerk of Fulton County......
  • Cockrell v. BOARD OF REGENTS OF NMSU, No. 19,417.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 7, 1999
    ...(qualified immunity granted when it was unclear whether maintenance supervisor had implied contract of employment); Aspinwall v. Herrin, 879 F.Supp. 1227, 1235 (S.D.Ga.1994) (unclear whether sheriff deputies fit within county personnel merit system and therefore sheriff entitled to qualifie......

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