Cooper v. Smith

• Decision Date: 12 May 1994
• Docket Number: Civ. A. No. CV293-70.
• Citation: 855 F. Supp. 1276
• Parties: Athel B. (Al) COOPER, Plaintiff, v. William E. (Bill) SMITH, individually and in his official capacity as Sheriff of Camden County, Georgia, Defendant.
• Court: U.S. District Court — Southern District of Georgia

855 F. Supp. 1276

Athel B. (Al) COOPER, Plaintiff, v. William E. (Bill) SMITH, individually and in his official capacity as Sheriff of Camden County, Georgia, Defendant.

Civ. A. No. CV293-70.

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

May 12, 1994.

Christopher A. Frazier, St. Simons Island, GA, for plaintiff.

Terry Lee Readdick, Brunswick, GA, for defendant.

ORDER

ALAIMO, District Judge.

On May 28, 1993, Plaintiff, Athel B. Cooper ("Cooper"), filed this federal question action against Defendant, William E. Smith ("Smith"), Sheriff of Camden County, Georgia, claiming that Smith violated Cooper's rights under the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), when Smith chose not to renew Cooper's commission as a deputy sheriff. Cooper claims that Smith dismissed him because he cooperated with the Georgia Bureau of Investigation ("GBI") during an investigation of Smith's alleged misdeeds, and because he wrote a letter which expressed hostility toward the Camden County Sheriff's Department (the "Department") and listed allegations of misconduct by Smith and the Department. This case is presently before the Court on Smith's motion for summary judgment. For the reasons discussed below, Smith's motion for summary judgment will be DENIED IN PART and GRANTED IN PART.

FACTS

In 1991 or 1992, the GBI began an investigation of alleged corruption in the Camden County Sheriff's Department. In July of 1992, Cooper and his wife (the "Coopers") gave information to the GBI which they believed would be kept confidential. The Coopers' conversations with the GBI took place at the Coopers' home. According to the Coopers, Smith and others in the Department found out about the Coopers' cooperation with the GBI. After the Coopers spoke to the GBI, the Camden County Grand Jury returned an indictment against Smith. Smith was reelected as Sheriff of Camden County soon after his indictment.¹ Following Smith's reelection, Cooper began to hear rumors that he would no longer have a job when Smith's new term began in 1993.

Seeking clarification of his job situation, Cooper wrote a letter to Major Charles A. Easterling ("Easterling"), the Acting Chief Deputy of the Department, on November 24, 1992. In Easterling's response, dated December 9, 1992, he declined to give Cooper a promotion or assurances of job security. On December 17, 1992, Cooper wrote to Smith in response to Easterling's letter, stating in part:

I freely admit that my "attitude" toward the major and the Department "steadily declined" in recent months, and that I find it generally distasteful and unpleasant to "associate with the administration of which" I am most certainly a member.

. . . . .

I have always believed that we must not use our positions for personal gain, and that we must at least try to treat everyone fairly and equally. But these ideals, beliefs and principles seem to have had no place at the Department in recent months.

I have become aware of many practices and occurrences at the Department which have damaged my morale and that many sic other deputies who are either presently employed or who were previously employed.

It would take several hours and an empty notebook to list them all. But I do believe I owe it to you and the major to mention a few of the most upsetting examples.

In violation of your own rules and regulations, male and female inmates have been allowed to have contact visits at the jail. Some inmates whose driver's license has sic been suspended are allowed to drive marked sheriff's department cars. Other inmates, who have been sentenced to long prison terms for such crimes as aggravated child child sic molestation and possession of cocaine with intent to distribute, are kept at the jail and are not sent off to prison to serve their time. Some deputies, while on active duty, have been allowed to work at private residences and to gather oysters for parties thrown by you for the department and some of your political supporters.

. . . . .

It should not be necessary for me to point out that these chickens are eventually coming home to roost, and you and the county could be sued and lose. Even a cat has only nine lives.

Cooper sent copies of this letter to Easterling and five members of the Camden County Commission.

Smith has stated that he considered Cooper's December 17 letter to be a letter of resignation. On December 29, 1992, Smith told Cooper that his commission as deputy sheriff would not be renewed for the following year. None of the other employees of the Department who talked to the GBI was dismissed or "not renewed."

Cooper filed this suit on May 28, 1993, alleging that he had been dismissed in retaliation for exercising his right to free speech, in violation of the First Amendment to the United States Constitution. Cooper further alleged that he had been denied equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution.

On December 27, 1993, Smith filed his motion for summary judgment, arguing that he should prevail on the First Amendment Claim because: 1) even if Cooper spoke out on matters of public concern, Smith's decision not to renew Cooper's commission was justified by legitimate reasons; and 2) Cooper has failed to produce evidence showing that his speech was a substantial factor in Smith's decision not to renew his commission. Smith argues that he should prevail on the Equal Protection claim because Cooper has not shown that he was similarly situated to any other officers.²

DISCUSSION

The vagueness of Cooper's complaint and his failure to organize his allegations into counts render it somewhat difficult to identify Cooper's legal theories. Clearly, Cooper relies upon his right not to be dismissed from public employment as a result of speech protected by the First Amendment. Almost as clearly, Cooper asserts a claim under the Equal Protection Clause of the Fourteenth Amendment. Defendant seems to believe that Cooper has asserted a Due Process claim. The Court finds that this claim, if intended at all, has not been stated with sufficient definiteness to warrant consideration.

I. Summary Judgment

Summary judgment requires the movant to establish the absence of genuine issues of material fact, such that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). Summary judgment is also proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The non-moving party to a summary judgment motion need make this showing only after the moving party has satisfied its burden. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The court should consider the pleadings, depositions and affidavits in the case before reaching its decision, Fed. R.Civ.P. 56(c), and all reasonable inferences will be made in favor of the non-movant. Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09.

II. Section 1983

Section 1983 provides a civil action for persons who claim that their rights under the federal constitution or laws have been violated under color of state law. "The § 1983 remedy broadly encompasses 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).³ In the present action, Cooper alleges a § 1983 claim based on violations of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

A. First Amendment Claim

In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court attempted to strike a balance between the public employee's free speech rights and the public employer's interest in regulating employee speech. "The problem in any case is to arrive at a balance between the interests of the public employee as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. at 1734-35.

Although the public employee plaintiff in Pickering was a teacher, the Courts of Appeals have applied the Pickering balancing tests to law enforcement officers as well. In Bryson v. City of Waycross, 888 F.2d 1562, 565 (11th Cir.1989), the Eleventh Circuit Court of Appeals gave the following summary of the Pickering principle when applying the Pickering test to a police captain's free speech claim:

although the law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the first amendment, a public employee's right to freedom of speech is not absolute.

888 F.2d at 1565.

The Bryson Court set out a four part test to be used in determining whether a public employee may properly be discharged because of his speech. First, the court must determine whether the employee's speech may be "fairly characterized as constituting speech on a matter of public concern." Bryson, 888 F.2d at 1565 (citations omitted).

Second, if the speech relates to a matter of public concern, the court must apply Pickering's balancing test, "weighing the employee's first amendment interests against `the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Bryson, 888 F.2d at 1565 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35).

Third, if the employee prevails on the balancing test, the fact-finder must determine "whether the employee's speech played a `substantial part' in the government's decision to ... discharge the employee." Bryson, 888 F.2d at 1565. See also Mt. Healthy City Sch....