Bailey v. Wheeler

• Decision Date: 28 November 2016
• Docket Number: No. 15-11627,15-11627
• Citation: 843 F.3d 473
• Parties: Derrick Bailey, Plaintiff-Appellee, v. Major Tommy Wheeler, in his individual and official capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

843 F.3d 473

Derrick Bailey, Plaintiff-Appellee,
v.
Major Tommy Wheeler, in his individual and official capacity, Defendant-Appellant.

No. 15-11627

United States Court of Appeals, Eleventh Circuit.

November 28, 2016

Derrick Bailey, ATLANTA, GA, pro se.

Theodore Freeman, Benton J. Mathis, Jr., Mark Andrew Begnaud, Martin B. Heller, Freeman Mathis & Gary, LLP, Brian Richard Dempsey, Quintairos, Prieto, Wood & Boyer, P.A., ATLANTA, GA, for Defendant-Appellant.

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and URSULA UNGARO,^* District Judge.

Opinion

ROSENBAUM, Circuit Judge:

The be-on-the-lookout advisory ("BOLO") to all law enforcement in Douglas County, Georgia, described its subject as a "loose cannon." "Consider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly," the BOLO alarmingly warned and ominously instructed.

What had the subject of the BOLO done to trigger such a grave alert? Had he threatened law enforcement or the public? Had he broken any laws? Was he mentally unstable? Had he been acting at all suspiciously? No, no, no, and no.

Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had wielded the mightiest weapon of them all: the pen.¹ An officer of the Douglasville Police Department, Bailey had filed a written complaint with his chief, reporting that other Douglasville officers and Douglas County Sheriff's Office deputies had been racially profiling minority citizens and committing other constitutional violations.²

843 F.3d 478

Bailey's revelations did not go over well in Douglas County's law-enforcement community. Indeed, several months later, Bailey found himself without a job.

But that did not silence Bailey. Instead, Bailey filed an appeal with the City of Douglasville, again reporting constitutional violations by his fellow officers. The City held a hearing on Bailey's appeal. And the very next day, Defendant-Appellant Major Tommy Wheeler of the Douglas County Sheriff's Office issued a county-wide alert to all law-enforcement officers, picturing Bailey, warning that he was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly."

Bailey did not sit idly by. He sued Wheeler and others, asserting, among other causes of action, a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights and a claim under Georgia law for defamation. When Wheeler sought to dismiss these claims, the district court denied his motion. We now affirm.

I.

A.

Bailey had more than seventeen years of law-enforcement experience when he joined the City of Douglasville Police Department ("Police Department") as a police officer in March 2010.³ So it is not surprising that between May 2010 and June 2012, Bailey received above-average employee performance appraisals from his supervisors.

But Bailey's time employed with the Police Department was far from perfect. On April 26, 2011, Bailey filed a written complaint with his chief, reporting that Police Department officers and Douglas County Sheriff's Office ("Sheriff's Office") deputies were racially profiling minority citizens and committing other constitutional violations. Bailey also complained that law-enforcement officers made racially offensive comments and jokes about minorities, describing black males as "black as shoe polish wearing all black" and remarking that the City of Douglasville's ("City") logo was a "lynching tree."⁴ Finally, Bailey expressed concern that he would lose his job for "making the complaints and speaking out about racial profiling and other violations."

Although repercussions of Bailey's complaint did not follow immediately, in the fall of 2012, Bailey's supervisors ordered Bailey to rewrite incident reports that he had previously filed, and they conducted

843 F.3d 479

an investigation of Bailey. When Bailey reminded his supervisors that rewriting incident reports violated Police Department policy, he was initially placed on administrative leave with pay, then suspended for three days without pay, and then charged on November 8, 2012, with conduct unbecoming an officer.⁵ Eight days later, though Bailey had no prior write-ups or reprimands on his record, Bailey was terminated from his position with the Police Department.

Two days after that, on November 18, 2012, Bailey appealed his termination to the City. In his appeal, Bailey wrote that he believed that he was fired for speaking out against profiling, other unconstitutional conduct, and racially offensive remarks made by that Police Department officers and Sheriff's Office deputies.

The City held a hearing on Bailey's appeal on February 8, 2013. That very night, two deputies in a Sheriff's Office vehicle followed Bailey as he drove his personal car from Douglasville into the City of Atlanta. When Bailey entered his intended destination, the two deputies followed him in and stared him down.

Things did not improve for Bailey. The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey's photograph, calling him a "loose cannon," and warning law-enforcement officers to "[c]onsider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly." And for the second day in a row, law enforcement—this time vehicles from both the Sheriff's Office and the Police Department—followed Bailey as he drove his personal car.

About three weeks went by, and Bailey was permitted to return to work at the Police Department. At that time, the Police Department's chief advised Bailey that Bailey could cancel the BOLO against him by calling the Sheriff's Office.

B.

On March 25, 2013, Bailey filed this lawsuit. In the course of pretrial litigation, Bailey filed a second amended complaint. As it pertained to Wheeler,⁶ the second amended complaint alleged four causes of action, including, as relevant here, a claim that, in violation of 42 U.S.C. § 1983, Wheeler had retaliated against Bailey for exercising his First Amendment rights, and a claim that Wheeler had defamed Bailey under Georgia law.

Wheeler moved to dismiss the counts against him, contending that Bailey had failed to state a claim and that, in any event, Wheeler was entitled to qualified immunity on the § 1983 claim and official immunity on the defamation claim. The district court denied Wheeler's motion as it pertained to the First Amendment and defamation claims.⁷ Wheeler now appeals.

843 F.3d 480

II.

We have jurisdiction to review Wheeler's interlocutory appeal of the district court's denial of qualified immunity and official immunity. Cummings v. DeKalb Cty. , 24 F.3d 1349, 1352 (11th Cir. 1994).

We review de novo a district court's denial of qualified immunity on a motion to dismiss. Franklin v. Curry , 738 F.3d 1246, 1249 (11th Cir. 2013). We likewise review de novo the denial of official immunity under Georgia law. Hoyt v. Cooks , 672 F.3d 972, 981 (11th Cir. 2012). In doing so, we accept as true the facts alleged in the complaint, drawing all reasonable inferences in a plaintiff's favor. Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010).

III.

Section 1983 of Title 42, United States Code, creates a private right of action to remedy violations of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Rehberg v. Paulk , 566 U.S. 356, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012). The cause of action is available against "[e]very person who acts under color of state law to deprive another of a constitutional right." Id. (citation and internal quotation marks omitted). To establish a claim under § 1983, a plaintiff must demonstrate that a person acting under color of state law deprived him of a federal right. Myers v. Bowman , 713 F.3d 1319, 1329 (11th Cir. 2013).

But even if a plaintiff makes this showing, a defendant may seek to invoke the protections of qualified immunity. Qualified immunity shields public officials from liability for civil damages when their conduct does not violate a constitutional right that was clearly established at the time of the challenged action. City & Cty. of San Francisco v. Sheehan , ––– U.S. ––––, 135 S.Ct. 1765, 1775, 191 L.Ed.2d 856 (2015).

To be eligible for qualified immunity, a government official must first establish that he was acting within the scope of his discretionary authority when the alleged wrongful act occurred. Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002). Here, Bailey does not dispute that Wheeler was acting within the scope of his discretionary authority when he issued the BOLO against Bailey.

So the burden shifts to Bailey, as the plaintiff, to establish that qualified immunity does not apply. Id . To do this, Bailey must make two showings: first, he must demonstrate that Wheeler's issuance of the BOLO violated Bailey's constitutionally protected right. Second, he must show that the right was clearly established at the time that Wheeler issued the BOLO. Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Grider v. City of Auburn , 618 F.3d 1240, 1254 (11th Cir. 2010). Bailey must satisfy both prongs of the analysis to overcome a defense of qualified immunity. See Grider , 618 F.3d at 1254.

A. Wheeler violated Bailey's First Amendment rights

Bailey alleges that Wheeler issued the BOLO against him to punish Bailey for reporting law enforcement's unconstitutional treatment of minority citizens. To state a claim for retaliation under the First Amendment, a plaintiff must demonstrate that (1) he engaged in protected speech; (2) the defendant's conduct adversely affected the protected speech; and (3) a causal connection exists between the speech and the defendant's retaliatory actions. See

843 F.3d 481

Smith v. Mosley , 532 F.3d 1270, 1276 (11th Cir. 2008) ; Bennett v. Hendrix , 423 F.3d 1247, 1250 (11th Cir. 2005).

Wheeler does not contend that Bailey failed to establish the first element⁸ —that he engaged in protected speech. Instead,...