Maxey v. Smith, Civil Action No. 1:93cv122-D-D (N.D. Miss. 2/__/1996)

• Decision Date: 01 February 1996
• Docket Number: Civil Action No. 1:93cv122-D-D.
• Parties: H.B. MAXEY, Jr. (a.k.a. "Bud" Maxey) v. ROBERT A. SMITH, Individually and as Alderman/Vice Mayor, City of Starkville, EMMETT SMITHERMAN, JR., Individually and as Alderman, City of Starkville, ED BUCKNER, Individually and as Alderman, City of Starkville, HAROLD E. WILLIAMS, Individually and as Alderman, City of Starkville, MELVIN RHODES, Individually and as Alderman, City of Starkville and BEN HILBUN, JR., Individually and as City Attorney for the City of Starkville, and the CITY OF STARKVILLE.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi

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H.B. MAXEY, Jr. (a.k.a. "Bud" Maxey) v. ROBERT A. SMITH, Individually and as Alderman/Vice Mayor, City of Starkville, EMMETT SMITHERMAN, JR., Individually and as Alderman, City of Starkville, ED BUCKNER, Individually and as Alderman, City of Starkville, HAROLD E. WILLIAMS, Individually and as Alderman, City of Starkville, MELVIN RHODES, Individually and as Alderman, City of Starkville and BEN HILBUN, JR., Individually and as City Attorney for the City of Starkville, and the CITY OF STARKVILLE.

Civil Action No. 1:93cv122-D-D.

United States District Court, N.D. Mississippi, Eastern Division.

February __, 1996.

MEMORANDUM OPINION

Again this court takes up the matter of former Starkville Police Chief H. B. Maxey and the decision of the Starkville Board of Aldermen to place him on administrative leave. The basic facts underlying this action have already been discussed by this court as well as the Fifth Circuit, and the undersigned sees no reason to repeat all of them here. See, e.g., Maxey v. Smith, 823 F. Supp. 1321 (N.D. Miss. 1993). The parties have submitted more evidentiary proof in conjunction with their present submissions to the court, but any additional facts which warrant discussion shall be provided by the court as they are required.

In essence, the plaintiff claims that he was placed on administrative leave from his position of Police Chief in retaliation for the exercise of his rights under the First Amendment to the United States Constitution. He primarily brings this action under the Civil Rights Act of 1965, 42 U.S.C. § 1983. The present motion before the court is the defendants' second Motion for Summary Judgment.

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." F.R.C.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986); Federal Sav. & Loan Ins. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russel Law, 19 F.3d 215, 217 (5th Cir. 1994).

II. QUALIFIED IMMUNITY

This court previously denied the defendants' Motion for Partial Summary Judgment, and their assertion of entitlement at that time to the protection of qualified immunity. Maxey v. Smith, Civil Action No. 1:93cv122-D-D (N.D. Miss. Sept. 23, 1994) (Memorandum Opinion and Order Denying Defendants' Motion for Partial Summary Judgment). The defendants appealed that order to the Fifth Circuit, which determined that genuine issues of material fact precluded a definitive determination on that issue. Maxey v. Smith, No. 94-60794, slip op. at 12 (5th Cir. Jun. 21, 1995). However, the Fifth Circuit did note that "[n]either the district court's ruling nor this one precludes the Starkville defendants from submitting another motion for summary judgment based upon additional facts or from trying the issue of qualified immunity on the merits before a jury." Maxey v. Smith, No. 94-60794 slip op. at 13 n.6 (5th Cir. Jun. 21, 1995). The defendants accepted this invitation from the Fifth Circuit to file an additional Motion for Summary Judgment based upon immunity, and this court now considers the matter once again.

In the motion presently before the court, the defendants charge that there is no genuine issue of material fact as to whether the plaintiff's statements to the press were a "substantial" or "motivating" factor behind the decision of the defendants to place him on administrative leave. Since the plaintiff cannot establish this fact, they continue, the defendants are entitled to qualified immunity. While certainly relevant to the core issue of the merits of the plaintiff's First Amendment claim, the undersigned fails to see how this particular argument has any bearing on the question of immunity.

This court does believe, however, that it understands the source of this confusion. In its unpublished opinion, the Fifth Circuit found that genuine issues of material fact existed as to the "basis of the Board's decision," and appears to have found this issue material to the determination of qualified immunity. Maxey v. Smith, No. 94-60794, slip op. at 12 (5th Cir. Jun. 21, 1995). The Fifth Circuit went on to dismiss the defendants' appeal on qualified immunity because of relevant disputed factual issues. Baulch v. Johns, 70 F.3d 813, 815 (5th Cir. 1995) ("[A] district court's denial of a qualified immunity summary judgment is not appealable when there are disputed issues concerning the immunity claim.") (citing Johnson v. Jones, ___ U.S. ___, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)).

The determination of qualified immunity is a three-pronged inquiry. The court must determine:

1) if the plaintiff has asserted the violation of a constitutional right at all;

2) if the law was clearly established at the time of the official's action; and

3) the objective reasonableness of the official's conduct as measured by reference to clearly established law.

Brown v. Bryant County, 67 F.3d 1174, 1181 (5th Cir. 1995). Disputed issues of material fact relevant to qualified immunity which would preclude the grant of summary judgment are those centering around the "objective reasonableness" of the defendant's alleged actions — the final inquiry of the qualified immunity analysis. See, e.g., Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994); Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) ("Rule 56 still has vitality in qualified immunity cases if [there are] underlying historical facts in dispute that are material to resolutions of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.") (emphasis added); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988) ("Had appellants timely asserted the question of qualified immunity, subsidiary questions of fact might have arisen, such as what information they possessed that might have led a reasonable person to believe that [their action] was lawful."). It is possible that the merits of a case are so inexorably intertwined with the inquiry of "objective reasonableness" that they cannot be separated.¹ However, in cases like the one at bar, as in most cases, questions of fact as to the actual merits of the plaintiff's claims are altogether different questions from those of immunity. See Bonitz v. Fair, 804 F.2d 164, 174 (1st Cir. 1986) ("[The defendant's] claim that he did not in fact cause the alleged wrong is not an argument that he is entitled to immunity, but rather is an argument that he is not liable."); Roos v. Smith, 837 F. Supp. 803, 806 (S.D. Miss. 1993) ("Patently, defendants' argument goes directly to the merits of the plaintiff's allegations in this case."). To routinely equate the immunity question to the question of the merits would make the court's determination of immunity on summary judgment no different than a determination of the merits on summary judgment. This is wholly impractical considering that a determination of immunity is to be made at the earliest possible stage, even before discovery is conducted. Hunter v. Bryant, 502 U.S. 224, ___, 112 S.Ct. 534, 537, 116 l.Ed.2d 589 (1991) ("Immunity ordinarily should be decided long before trial."); Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987) (stating whenever qualified immunity is asserted as affirmative defense resolution of issue should occur at earliest possible stage); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (stating that issues of qualified immunity are determined from face of pleadings without extended resort to pre-trial discovery).

The subjective beliefs of the Starkville officials as to what facts they actually relied upon in taking their actions are irrelevant to the objective reasonableness of those alleged actions. Mangieri, 29 F.3d at 1017. Rather, the issue is an "objective (albeit fact-specific) question whether a reasonable officer could have believed" that he was violating the plaintiff's constitutionally protected rights "under the circumstances of the complained of action." Mangieri, 29 F.3d at 1017 (emphasis added) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)); see Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995) ("Factual allegations are examined to determine whether they would be sufficient, if proven, to establish a violation of clearly established law."). In its most basic terms, this court must 1) assume that the official committed the acts of which the plaintiff complains, 2) determine what relevant facts and circumstances surrounded the action, including what facts the official was aware of or should have been aware of when taking the alleged action, and 3) objectively determine as a matter of law whether a reasonable official in the defendants' position would have believed that he was violating clearly established constitutional rights by taking...