Greer v. City of Warren
| Decision Date | 23 March 2012 |
| Docket Number | Civil No. 1:10-cv-01065 |
| Parties | ERIC GREER PLAINTIFF v. CITY OF WARREN, BRYAN MARTIN, and RANDY PEEK, Individually and in their Official Capacities DEFENDANTS |
| Court | U.S. District Court — Western District of Arkansas |
Before this Court is Defendants' Motion for Summary Judgment. ECF No. 28.1 Defendants filed this Motion and the accompanying brief on February 14, 2012. Id. On March 4, 2012, Plaintiff responded to this Motion. ECF No. 35. Plaintiff claims Defendants are not entitled to summary judgment on any of their claims. Id. Defendants replied in support of their Motion on March 7, 2012. ECF No. 38. This Court held a hearing on this Motion on March 20, 2012 in El Dorado, Arkansas. All Parties were present and were represented by counsel. Id. This case is set for trial on April 16, 2012 in El Dorado, Arkansas before the undersigned. ECF No. 27.
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 16. Pursuant to this authority, the Court finds this Motion is ready for decision and issues this Order.
On September 30, 2010, Plaintiff filed his Complaint in this case. ECF No. 1. Thereafter, on November 23, 2010, Plaintiff filed an Amended Complaint. ECF No. 14. Defendants, the Cityof Warren, Arkansas ("Defendant City"), Mayor Bryan Martin ("Defendant Martin"), and Police Chief Randy Peek ("Defendant Peek") filed an answer to Plaintiff's Amended Complaint on December 3, 2010. ECF No. 17. Plaintiff's Amended Complaint is the current pleading in this action. Id. In his Amended Complaint, Plaintiff raises three counts: (1) Count 1: First Amendment retaliation; (2) Count II: Fourteenth Amendment Due Process violation; and (3) Count III: Arkansas Whistle-Blower Act ("AWBA") violation. Id.
Plaintiff claims that at the time of the events in question, he was a police officer for the Defendant City and was working as a patrol supervisor. ECF No. 14. Defendant City allegedly terminated Plaintiff for using a racial slur during an arrest in March of 2009. ECF No. 30 ¶ 26. Plaintiff claims he did not use this racial slur and he was unlawfully terminated from his position. Id. ¶ 3. Plaintiff claims he was "accused of being a racist and using racial slurs," and Plaintiff claims he was not given the opportunity to fully rebut these charges at his name-clearing hearing. Id. ¶¶ 3-4. Specifically, Plaintiff alleges his hearing was constitutionally inadequate because during that hearing, he was not given the opportunity to "call his witnesses or cross examine witnesses against him." Id. ¶ 6. Plaintiff claims this denial deprived him of his Fourteenth Amendment due process rights (Count II). Id. ¶ 28.
Plaintiff also claims he had a Confederate Flag2 at his house and on his private MySpace page.3 ECF No. 14 ¶ 7. Plaintiff claims displaying this Confederate Flag was protected speech. Id. Plaintiff claims he was terminated because he displayed this Confederate Flag. Id. ¶¶ 19-20.Plaintiff claims this termination was in violation of his First Amendment free speech rights (Count I). Id.
Finally, Plaintiff claims this wrongful termination was to punish him and in retaliation for a report he filed regarding a fellow police officer, Officer Timothy Nichols. Id. ¶ 8. Plaintiff reported Officer Nichols for using a racial slur. Id. Plaintiff claims that because he reported Officer Nichols, he was terminated. Id. ¶ 33. Plaintiff claims this action was in violation of his First Amendment rights (Count I) and in violation of the AWBA (Count III). Id. ¶ 1. To further support this accusation, Plaintiff claims Officer Nichols was friends with Sgt. Don Hollingsworth who conducted the investigation into his alleged use of a racial slur. Id. ¶¶ 10-11. Plaintiff claims Sgt. Hollingsworth "regularly says that if doesn't like you he'll get you fired," presumably through Defendant Peek. Id. ¶ 11. Plaintiff claims Sgt. Hollingsworth told Plaintiff "with a smile on his face" that he had been reported for using a racial slur. Id. ¶ 15. Plaintiff claims his motivation was "to get back at Plaintiff." Id.
On, February 14, 2012, Defendants filed the present Motion for Summary Judgment. ECF No. 28. With their Motion, Defendants claim they are entitled to summary judgment as to all three of Plaintiff's counts (Counts I to III). Id. As to Count I, Defendants claim they are entitled to summary judgment because Plaintiff cannot establish a prima facie case of First Amendment retaliation. ECF No. 29 at 4-17. As to Count II, Defendants claim they are entitled to summary judgment because Plaintiff has not been deprived of any rights to procedural due process or, alternatively, Plaintiff has waived his procedural due process claim. Id. at 17-22. As to Count III, Defendants claim they are entitled to summary judgment because Plaintiff's claim is insufficiently pled and because Plaintiff has not established a violation of this act. Id. at 23-30. Finally, separate Defendants Martin and Peek argue they are entitled to summary judgment on the claims against themin they individual capacities. Id. at 30-37.
In support of their Motion, Defendants have submitted the following: (1) relevant portions of Defendants' Responses to Plaintiff's First Set of Interrogatories and Requests for Production of Documents; (2) transcript from the preliminary injunction hearing; (3) relevant portions of the deposition of Plaintiff; (4) relevant portions of the deposition of Defendant Martin; (5) relevant portions of the deposition of Defendant Peek; (6) relevant portions of the deposition of Deputy Jester; and (7) relevant portions fo the deposition of Deputy Hearnsberger. ECF No. 28.
Plaintiff filed his response on March 4, 2012. ECF No. 35. Plaintiff claims Defendants' request for summary judgment as to all of his claims should be denied. Id. In support of his response, Plaintiff has submitted the following: (1) the deposition of Defendant Peek; (2) the deposition of Deputy Jester; (3) the deposition of Deputy Hearnsberger; (4) the deposition of Defendant Martin; (5) his deposition; and (6) Defendants' discovery responses. ECF No. 37-1 to 37-6. On March 7, 2012, Defendants filed a reply in support of their Motion. ECF No. 38. This matter is now ripe for consideration.
The summary judgment standard is well-established. A motion for summary judgment will be granted if the "movant 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). As the United States Court of Appeals for the Eighth Circuit has recognized, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 2000) (citation omitted).
The party moving for summary judgment has the initial burden of informing the court of thebasis for its motion and identifying the pleadings, admissions, discovery documents, and affidavits it contends show the absence of genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, the moving party does not have the burden of negating the other party's claim. Id. The moving party meets its burden merely by "pointing out" to the district court that there is an "absence of evidence to support the nonmoving party's case." Id. at 325. The nonmoving party must then go beyond its own pleadings to designate specific facts raising a genuine triable issue. Id. at 324.
In order to establish a genuine issue of material fact exists, the nonmoving party must show that: (1) there is a factual dispute; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). A dispute is genuine only if a reasonable jury could return a verdict for either party. Id. The mere existence of a factual dispute is insufficient alone to bar summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rather, the dispute must be outcome-determinative under prevailing law. Id. When evaluating the evidence, it is incumbent upon this Court to view the facts in a light most favorable to the nonmoving party, Plaintiff, to determine whether there is a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citation omitted).
As outlined above, Plaintiff has raised three claims, Counts I through III, in his Amended Complaint. ECF No. 14. Defendants seek summary judgment in their favor on all three of these counts. ECF No. 28. As an initial matter, it is important to recognize which parties this suit is against.
First, this Court should consider whether Defendants Peek and Martin are properly sued intheir "official capacities." Plaintiff's Counts I and II (constitutional claims) are against Defendant City and are not against Defendants Peek and Martin in their "official capacities." Kentucky v. Graham, 473 U.S. 159, 165 (1985) (). Plaintiff's Count III (AWBA claim) is also only against Defendant City and is not against Defendants Peek and Martin in their "official capacities." Sutton v. Ark. State Univ., No. 3:11-cv-00123, 2011 WL 3861391, at *5 (E.D. Ark. Sept. 1, 2011) (). Because all of Plaintiff's "official capacity" claims are against Defendant City, ...
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