Sheppard v. Beerman

Decision Date06 September 1996
Docket NumberD,No. 1791,1791
Parties12 IER Cases 49 Brian SHEPPARD, Plaintiff-Appellant, v. Leon BEERMAN, as an individual and in his official capacity as Justice of the Supreme Court of the State of New York, Defendant-Appellee. ocket 96-7112.
CourtU.S. Court of Appeals — Second Circuit

Brian Sheppard, pro se.

Amy L. Abramowitz, Asst. Atty. Gen. of N.Y., New York City (Dennis C. Vacco, Atty. Gen. of N.Y., New York City, of counsel), for Defendant-Appellee.

Michael Colodner, John Eiseman, John J. Sullivan, New York City, submitted a brief, for amicus curiae Jonathan Lippman, Chief Administrative Judge of the Courts of the State of New York.

Before: KEARSE, MAHONEY, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Plaintiff Brian Sheppard appeals from a Memorandum and Order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge ), see Sheppard v. Beerman, 911 F.Supp. 606 (E.D.N.Y.1995), granting defendant Judge Leon Beerman's motion to dismiss Sheppard's complaint on the grounds of qualified immunity. For the reasons stated below, we vacate the district court's order and remand for further proceedings consistent with this opinion.

BACKGROUND

This case is before us for the second time. See Sheppard v. Beerman, 18 F.3d 147 (2d Cir.1994). In our first opinion, we set forth the essential facts, none of which have changed:

[Brian] Sheppard served as a law clerk to [New York State Supreme Court Justice Leon] Beerman from 1986 until he was fired on December 11, 1990....

Sheppard alleges that on December 6, 1990, after engaging in ex parte communications with the prosecution in a pending murder case, Beerman ordered him to draft a decision denying the defendant's pending speedy trial motion without a hearing, regardless of the motion's merits, so that the defendant would stand trial at a time advantageous to the prosecution. Sheppard refused to follow Beerman's direction, stating that he would not take part in the "railroading" of the defendant. Beerman responded that although Sheppard was not being discharged, he should seek other employment if he felt that way.

At this time, Sheppard informed Beerman that he had taken extensive notes of instances of other judicial misconduct by Beerman during the preceding four years of Sheppard's service in chambers. As an example, Sheppard noted a case that Beerman had assigned to himself in order to take personal revenge against the accused. Beerman expressed concern about Sheppard making his notes public. Harsh When Sheppard next returned to work on December 11, 1990, he was removed from chambers by court officers, who informed him that Beerman had fired him. Sheppard was forced to leave immediately and not allowed to take his belongings with him. Both before and after his discharge on that day, Sheppard's property was searched by Beerman or by others at his direction. Specifically, Sheppard's file cabinets and desk drawers were searched, and a box of his personal file cards was seized and removed to Beerman's private office and examined. On December 13, 1990, Sheppard was permitted to return to chambers accompanied by court officers to retrieve certain of his belongings. On December 21, 1990, he was permitted to retrieve the rest of his personal files.

                words were exchanged between the parties:  Sheppard called Beerman "corrupt" and a "son of a bitch," and Beerman called Sheppard "disturbed" and "disloyal."   Sheppard immediately apologized for his characterization.  The argument ended with no resolution, and Sheppard worked the remainder of the day
                

Following his discharge, Sheppard returned to Beerman's courtroom on a number of occasions. On January 18, 1991, while attending Beerman's calendar call, Sheppard began ruffling through court files. Beerman subsequently directed him to leave the courtroom if he wished to examine documents. On January 28, 1991, Beerman told an attorney not to speak with Sheppard and warned Sheppard not to involve himself in the cases Sheppard had worked on when he was a clerk. On February 11, 1991, Sheppard was told not to keep coming in and out of the courtroom, and was told to be quiet when he sought to reply to this direction.

Id. at 149-50.

Sheppard sued Beerman in the United States District Court for the Eastern District of New York, under 42 U.S.C. § 1983, alleging that Beerman's actions:

violated Sheppard's First Amendment right to free speech, his First Amendment right of access to criminal proceedings and documents, his First Amendment right to petition the government for redress of grievances, and his Fourth Amendment right to be free from unlawful searches and seizures. Sheppard also asserted pendent state law tort claims for, among other things, false imprisonment, trespass, conversion, and defamation.

Sheppard, 18 F.3d at 150. Beerman answered, and then moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c) ("Rule 12(c)"), on the grounds that Sheppard had failed to state a cause of action, and that Beerman was in any event entitled to qualified immunity.

The district court granted Beerman's motion for judgment on the pleadings, finding that, as a matter of law, Sheppard could not state a constitutional claim. See Sheppard v. Beerman, 822 F.Supp. 931 (E.D.N.Y.1993). The district court also declined to exercise jurisdiction over plaintiff's pendent state law claims. Sheppard appealed to this Court; we affirmed most of the district court's rulings, but vacated the dismissal of Sheppard's First Amendment free speech claim. See Sheppard, 18 F.3d at 151, 153. Specifically, we stated:

In analyzing the validity of Sheppard's claim, the district court made a determination that Sheppard was actually discharged for insubordination and not for his speech.... Because this question is in dispute, it was improper for the district court to answer it on a motion for dismissal on the pleadings.

. . . . .

Based on the foregoing ... we find that in concluding that Sheppard failed to state a violation of his First Amendment right to free speech, the district court made certain factual determinations that were not appropriate on a motion for judgment on the pleadings.... [W]e make no comment on the merits of the claim nor do we preclude the district court from re-examining the matter at some future, more appropriate time in the proceedings.

Id.

On remand, the district court again granted judgment to Beerman on the pleadings. See Sheppard, 911 F.Supp. 606. Finding, as The court also held that, because Beerman's qualified immunity deprived Sheppard of an actionable claim, his request for declaratory relief had no foundation, and also had to be dismissed. It further found that Sheppard had not shown a sufficient likelihood of future harm to warrant his requested injunctive relief. With that, the district court again dismissed Sheppard's claim in its entirety. Sheppard now appeals, arguing that the district court erred in its pivotal finding that Beerman was entitled to qualified immunity.

a matter of law, that Sheppard's speech was on a matter of public concern and that Sheppard had shown a prima facie case of unconstitutional discharge, the district court found nevertheless that Beerman was entitled to qualified immunity. It concluded that Beerman "acted within the realm of objective reasonableness in terminating Sheppard's employment," and thus was entitled to judgment on the pleadings. Id. at 616.

DISCUSSION

We review the district court's Rule 12(c) dismissal of Sheppard's complaint de novo. See Sheppard, 18 F.3d at 150; Ad-Hoc Comm. of the Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987). All allegations in the complaint must be accepted as true; all inferences must be drawn in favor of the plaintiff; and dismissal is proper only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sheppard, 18 F.3d at 150 (internal quotations and citation omitted). When there has been a dismissal on the grounds of qualified immunity, whether there are disputed issues of fact that should have prevented the dismissal is also subject to our de novo review. See Weaver v. Brenner, 40 F.3d 527, 533 (2d Cir.1994); Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992); see also Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir.1994).

Government employees have a limited right under the First Amendment to speak on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993). To plead a prima facie case that he was fired in violation of his First Amendment rights, a plaintiff must establish that: (1) his speech can be "fairly characterized as ... speech on a matter of public concern;" and (2) the speech was "at least a substantial or motivating factor in the discharge." Frank, 1 F.3d at 1328 (internal quotations and citations omitted).

It is clear, though, that a government official may, in certain circumstances, fire an employee for speaking--even on a matter of public concern--where that speech has the potential to disrupt the work environment. See Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). In Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995), we stated that termination does not violate the employee's First Amendment rights where:

(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.

Id. at 13; see also Waters v. Churchill, 511 U.S. 661, ---- - ----, ...

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