Kinney v. Weaver

• Decision Date: 16 May 2000
• Docket Number: No. 9:99-CV-77.,9:99-CV-77.
• Citation: 111 F.Supp.2d 831
• Parties: Dean KINNEY and David Hall, Plaintiffs, v. Bobby WEAVER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

111 F.Supp.2d 831

Dean KINNEY and David Hall, Plaintiffs, v. Bobby WEAVER, et al., Defendants.

No. 9:99-CV-77.

United States District Court, E.D. Texas, Lufkin Division.

May 16, 2000.

COPYRIGHT MATERIAL OMITTED

Curtis Bradley Stuckey, Stuckey Garrigan & Castetter, Nacogdoches, TX, Les Mendelsohn, Les Mendelsohn & Associates PC, San Antonio, TX, for Dean Kinney, David Hall, plaintiffs.

Robert Scott Davis, Louis Charles Edmond Van Cleef, Flowers Davis Fraser Derryberry & Van Cleef, Tyler, TX, for Bobby Weaver, Gregg County Sheriff, Bob Green, Gregg County, Harrison County, defendants.

Michael Keith Dollahite, Ritcheson Dollahite & Lauffer, Tyler, TX, for WA "Bill" Young, J.B. Smith, City of Tyler, Smith County, East Texas Police Chief's Ass'n, defendants.

Jay Nelson Green, Potter Minton Roberts Davis & Jones, Tyler, TX, for Ronnie Moore, Kilgore Director of Public Safety, Charles "Chuck" Williams, City of Marshall Police Chief, Ted Gibson, City of Kilgore, City of Marshall, City of Nacogdoches, defendants.

MEMORANDUM OPINION AND ORDER

COBB, District Judge.

Plaintiffs, Dean Kinney and David Hall, brought this action alleging that the Defendants¹ violated: (1) 42 U.S.C. § 1983 by retaliating against the plaintiffs for speaking out about a matter of public concern; (2) 42 U.S.C. § 1985 by conspiring to intimidate witnesses; (3) the plaintiffs Fourteenth Amendment rights to Due Process; and (4) Texas state law by tortiously interfering with the plaintiffs' business. Defendants have moved for summary judgment contending that the law and facts do not create a cause of action, and, in the alternative, that the various defendants are entitled to qualified immunity. For the reasons explained below, the motion is denied.

I. BACKGROUND

The circumstances surrounding this case are the subject of some disagreement. Both sides have developed theories about these circumstances and what they mean. Generally, the court is not concerned with "theories." To the extent these "theories," are found in the record as either direct or circumstantial evidence the court will consider them. However, to the extent they are merely speculation or conclusory allegations they have no part in the consideration of a motion for summary judgment. On a motion for summary judgment, the court is only concerned about whether genuine issues of material fact exist. From the record before the court now, these basic facts have been established.

Plaintiffs were both instructors at the East Texas Police Academy at Kilgore College in Kilgore, Texas. In August 1999, the plaintiffs both testified as expert witnesses against a police department in an excessive force/police misconduct case in Kerrville, Texas. The plaintiffs did not train any of the policemen or agencies involved in the Kerrville case. Some time after the plaintiffs testified, the problems, which are at the heart of this case, arose.

Previous to the two plaintiffs testifying in the Kerrville case, the defendant cities and counties had sent law enforcement officers and cadets to the East Texas Police Academy for basic training and continuing education. There was no contract requiring the defendants to do this. After the plaintiffs testified as experts, many of the defendants expressed their displeasure about this to Dr. William Holda, the president of Kilgore College. Defendant Moore wrote Dr. Holda stating that the plaintiffs' actions "seem[] to reflect a growing trend of some of your personnel to be gaining profit from garnering evidence and providing testimony against other Police Officers and Departments...." Defendant Chief Williams wrote Dr. Holda and stated "I think it is deplorable to think that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies." Defendant Young also wrote Dr. Holda about Kinney and Hall where he stated that he thought the plaintiffs' expert testimony could become a conflict of interest.² Meetings between Dr. Holda and the defendants took place.

At a meeting for the defendant East Texas Police Chiefs' Association, the situation about the plaintiffs was discussed in detail. The minutes of the meeting reflect this. They state in pertinent part:

Chief Young stated that the Chiefs and Sheriffs did not want the two instructors fire[d] only that they not be allowed to instruct police officers or cadets. Chief Young stated that he was not going to send any of his officers to any schools taught by Dean Kinney or David Hall. This point was repeated by several other Chief[s] and Sheriffs present including Chief Chuck Williams [from] Marshall P.D., Ronny Moore from Kilgore P.D., Ted Gibson from Nacogdoches P.D., Sheriff Bobby Weaver from Gregg Co. S.O. and others.

. . . . .

Chief Ted Gibson then stated that he was deeply concerned about the quality of the instruction given by the two Kilgore Academy instructors. Chief Gibson also stated that he was not going to send any of his officers to any school taught by the two instructors. He also felt that it should be up [to] the Chiefs to pick and choose the service they receive from Kilgore Academy and it should be up to the Academy to deliver that service. At that point it was agreed that none of the Chiefs or Sheriffs present would send their officers to any classes taught by either Dean [Kinney] or David Hall.

In media reports, some of the defendants made negative remarks about the plaintiffs' testimony. See Pl's Exhibit 70, videotape. Some of the defendants have admitted that they would not send their students to classes taught by the plaintiffs because of their expert testimony. See Williams Dep. p. 49, In. 13 through pg. 50, In. 5; Minutes of East Texas Police Chiefs Association.

The plaintiffs contend that the record reflects the defendants "blackballed" or boycotted the plaintiffs' classes at the Academy because the plaintiffs broke the "code of silence." The "code of silence" the plaintiffs refer to is the unwritten code that police officers should not testify against other police officers.³ Defendant Weaver during a tv interview referred to an "unwritten code" that the plaintiffs had violated by testifying as experts. It is the plaintiffs' position that this boycotting is a violation of the laws cited above.

The defendants, on the other hand, have maintained that they refused to send their officers to classes taught by Kinney and Hall because of potential conflicts of interests. The defendants maintain that it is a conflict of interest for the plaintiffs to testify against other police officers in the State of Texas since it is conceivable that some of the students in the East Texas Police Academy may work in those jurisdictions where the plaintiffs testify as experts. In support of this, the defendants point to a letter Dr. Holda wrote to the plaintiffs. Dr. Holda's letter was written after he met with many of the defendants to discuss their concerns about the plaintiffs' teaching abilities. The letter demonstrates that Dr. Holda felt that most of the defendants' concerns focused on a potential conflict of interest that may arise if the plaintiffs testified as experts in a case involving any of the defendant police agencies.

The parties have completed discovery and presented their arguments to the court. The record is full of evidence, both circumstantial and direct, backing each of the respective party's positions. After reviewing the record and the arguments of the parties, the court concludes that summary judgment is not appropriate and this case may proceed to trial.

II. STANDARD OF REVIEW

It is well-settled that a motion for summary judgment can be granted only if the matters considered by the court clearly demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); FED.R.CIV.P. 56(c). It is equally well-settled that the burden of proving that "no genuine issue of material fact exists," rests with the party moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this threshold, the burden shifts to the nonmoving party to demonstrate with significant probative evidence that there exists a genuine issue of fact to be tried. Kansa Reinsurance v. Congressional Mort. Corp., 20 F.3d 1362, 1371 (5th Cir.1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). Only evidence, not unsworn pleadings, memoranda or the like, will satisfy this burden. Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir.1991). Summary judgment is only proper when a rational jury, looking at the record as a whole, could not find for the nonmoving party. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). In making this assessment, factual controversies are to be resolved in favor of the nonmoving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (per curiam).

The court concludes that summary judgment is not proper in this case because there are genuine issues of material fact in each one of the plaintiffs' claims. Thus, the defendants have not met their burden. Moreover, the defense of qualified immunity does not prohibit this case from proceeding to trial.

III. ANALYSIS

A. Qualified Immunity

The individual defendants have asserted the defense of qualified immunity against all of the plaintiffs' federal causes of action. The "qualified ... immunity doctrine was established to reconcile two competing interests. One interest is the compensation of...