Nolin v. Douglas County
| Decision Date | 26 June 1990 |
| Docket Number | No. 89-8731,89-8731 |
| Parties | , 30 Fed. R. Evid. Serv. 641 Michael W. NOLIN, Plaintiff-Appellant, v. DOUGLAS COUNTY, Earl D. Lee, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert A. Moss, Atlanta, Ga., Lawrence Scott McLarty, Athens, Ga., John Paul Batson, Augusta, Ga., for plaintiff-appellant.
Donald Burton Howe, Jr., Howe & Dettmering, Douglasville, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before FAY and COX, Circuit Judges, and GODBOLD, Senior Circuit Judge.
Michael Nolin, a former lieutenant with the Douglas County, Georgia, Sheriff's Department, brought this section 1983 action against Earl Lee, the sheriff of Douglas County during Nolin's tenure, and Douglas County. Nolin alleges that Lee and Douglas County deprived him of a protected property interest without due process of law when he was suspended and eventually demoted three steps as a result of a covert investigation that he had conducted. Nolin further alleges violations of Georgia law in connection with his demotion. The district court directed a verdict in favor of Lee and Douglas County and entered judgment accordingly. We AFFIRM the district court's judgment.
Michael Nolin worked with the sheriff's department of Douglas County, Georgia, from early 1979 until his resignation in December, 1986. During his term, Nolin ascended through the ranks, starting as a deputy sheriff and eventually reaching the position of lieutenant. On September 18, 1986, however, Nolin was suspended from the sheriff's department because of his involvement in an investigation of drug use and distribution within the fire department The investigation commenced in the beginning of September, 1986, when an employee of the fire department, Toni Clogston Smith, approached Nolin and stated that she was experiencing a serious problem. During this conversation, Smith was unwilling to explain what the problem was, but she requested that they meet at a later date in a safe place to discuss the details. Nolin suggested his home and she agreed. On September 8, 1986, Smith and Nolin met at Nolin's house. Smith informed Nolin that she had encountered various individuals in the fire department and the sheriff's department using and dealing narcotics. She would not reveal the identities of the parties involved. After this conversation, Smith advised Nolin to repeat the information to no one, and they made arrangements to meet again on September 11 to discuss the specific instances of drug use and distribution.
and sheriff's department of Douglas County. Shortly thereafter, he resigned.
After the meeting, Nolin went to see Captain Harper, the officer in charge of internal affairs at the sheriff's department. Harper was in the hospital for minor surgery. Nolin explained his position to Harper--that he had been informed of a possible narcotics problem in the fire and sheriff's department and that he had scheduled a meeting with the informant to discuss the details. Nolin testified that Harper instructed Nolin to go ahead with the scheduled meeting and to take David Camp as a backup. Harper testified that he had been sedated and did not remember instructing Harper to do anything.
On September 11, Nolin met Smith as planned. Smith divulged information regarding the persons and the events which led her to believe that the fire department and the sheriff's office were experiencing internal problems. Specifically, she described a party thrown by another member of the fire department, Brad Basilici, at which cocaine was being used. She also stated that she had attended a party at the home of Jeff Hendrix, also a fire department employee. At that party, Smith saw two deputy sheriffs, Scotty Cosper and Rodney Howard, as well as other fire department employees in a bedroom, where what appeared to be cocaine was being prepared for use.
After Smith related these instances to Nolin, Nolin responded that he would have to tell his superiors so that they could further investigate. On September 12, 1986 Nolin met with Harper to discuss the details of what Smith had informed him. Harper advised Nolin that Nolin would no longer be conducting the investigation and that it would have to be reported to his superior officer. Accordingly, Harper reported the investigation to Major Dukes who in turn reported it to Sheriff Earl Lee. Harper was then relieved of any further investigation.
On September 16, 1986, Lee called a meeting to discuss Nolin's conduct throughout the course of Nolin's surreptitious investigation. During that meeting, Lee confronted Nolin about Nolin's failure to follow the chain of command and distribution of information regarding the internal investigation to external sources. For example, Lee discovered that Nolin had drafted memoranda documenting his daily experiences on the job and had given these documents to his father. Lee also learned that Nolin had discussed the drug investigation with Nolin's father. At the conclusion of the meeting, Lee decided to suspend Nolin until completion of the pending narcotics investigation, which had continued under the supervision of the sheriff and the district attorney. On September 18, 1986, Mike Nolin was suspended without pay because of his failure to follow the chain of command and his divulging sensitive information to people outside the department.
Nolin's suspension ended on November 1, 1986, when the investigation was completed. Upon returning to the sheriff's department, Nolin was demoted three steps. Lee, fearing that Nolin was not ready to carry a gun while on duty, assigned Nolin to the jail division. Shortly thereafter, Nolin resigned.
On March 9, 1988, Nolin filed a complaint with the district court, naming Earl Lee and Douglas County as defendants. The Defendant Douglas County responded to the complaint with an immunity defense. Likewise, Lee defended on the ground that he is immune from prosecution because he reasonably believed that his actions were lawful and that he acted within the scope of authority in discharging his duties. Additionally, both defendants asserted a defense based on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), partially overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), that is, plaintiff failed to exhaust the remedies available to him under state law regarding his claim that defendants infringed upon his procedural due process rights. Defendants filed neither a motion to dismiss nor a motion for summary judgment based on their claim of immunity.
first count alleges that defendants deliberately harassed, humiliated and frustrated plaintiff in order to remove him from his position as deputy sheriff, thereby "depriving Plaintiff of his constitutional rights." R1-1-5. In Count II, Nolin alleges that defendants' actions constitute a tortious interference with plaintiff's employment in violation of state law. The third count alleges that defendants violated plaintiff's procedural due process rights because plaintiff was forced to resign without a hearing and an opportunity to be heard. Count IV states that defendants' actions violated plaintiff's substantive due process rights. The fifth and final count is an allegation of intentional infliction of emotional distress
On March 2, 1989, after completion of discovery, Nolin's attorney submitted a proposed pretrial order setting forth the legal issues to be tried. The issues are listed as follows:
(a) Did Defendants violation [sic] 42 U.S.C. Sec. 1983;
(b) Did Defendants tortiously interfere with Plaintiff's employment;
(c) Did Defendants violate Plaintiff's procedural and substantive due process rights guaranteed him by the 5th and 14th Amendments to the United States Constitution;
(d) Did Defendants willfully cause emotional distress to Plaintiff.
R1-21-7. Having submitted the pretrial order with opposing counsel's approval, Nolin's attorney then attempted to amend it to include a First Amendment claim, as explicated in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (). The district court denied Nolin's motion to amend, reasoning that R1-12-2. Subsequently, Nolin's attorney moved the court to reconsider its decision denying him the opportunity to amend. The court adhered to its initial ruling.
Trial commenced on August 28, 1989. At trial, Nolin's counsel called several witnesses who explained the series of events leading to the demotion and subsequent resignation of Nolin. Counsel also introduced into evidence several documents, including "memos for record" drafted by Nolin, various memoranda distributed among the officers of the sheriff's department, and medical records. Nolin's attorney failed, however, properly to offer into evidence the guidelines governing public employment in Douglas County. In fact, Nolin's attorney proffered two different sets of regulations at different times, one during the examination of Lee and one at the close of plaintiff's case. Because Nolin's counsel failed to properly authenticate the documents, defendants' objections to their admission were sustained. Nolin's attorney requested the court to take judicial notice of the guidelines, but the court refused, reasoning that the guidelines are not ordinances or laws.
At the close of Nolin's case, Lee and Douglas County moved for a directed verdict. The court...
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