Thompson v. City of Starkville, Miss.
| Decision Date | 03 May 1990 |
| Docket Number | 89-4214,Nos. 89-4051,s. 89-4051 |
| Citation | 901 F.2d 456 |
| Parties | Harvey A. THOMPSON, Plaintiff-Appellee, v. CITY OF STARKVILLE, MISSISSIPPI, David Lindley, Larry Sisk, and Jimmy Raines, Individually and in their Official Capacities, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William I. Gault, Jr., Miller, Milam & Moeller, Jackson, Miss., for defendants-appellants.
Jim Waide, Tupelo, Miss., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Mississippi.
Before REAVLEY and KING, Circuit Judges, and HARMON, District Judge. *
Plaintiff-appellee, Harvey A. Thompson (Thompson), filed a section 1983 suit for injunctive relief and to recover damages for the termination of his employment as a police officer for the City of Starkville. He alleges that his termination was in violation of his first amendment right to free speech and his fourteenth amendment right to the equal protection of the laws. The Defendants-appellants, the City of Starkville, Mississippi (City), David Lindley (Lindley), Larry Sisk (Sisk) and Jimmy Raines (Raines) (collectively, the Defendants), filed a motion to dismiss or, alternatively, for summary judgment. The Defendants challenged both Thompson's first and fourteenth amendment claims and, in the alternative, Sisk, Raines and Lindley asserted a qualified immunity defense. Considering the Defendants' motion as one for summary judgment, the district court denied such motion. The Defendants now appeal the district court's denial of their summary judgment motion. After careful review, we affirm the district court's judgment with respect to Thompson's first amendment claim. As we find that Thompson failed to state a claim under the fourteenth amendment, we reverse the district court's judgment on this issue. We also affirm the denial of the individuals' qualified immunity defense.
Thompson was a police officer for the City from May 1979 until November 1987 when he was fired. Thompson claims that his termination resulted from his exercise of his first amendment rights in the form of protesting certain promotions on the police force and aiding others in doing the same. His alleged speech took two forms. First, in October 1981, he filed a written grievance relating to the department promotion requirements. He noted that he was not allowed to take the sergeant's test in 1979 because he had not completed the then prerequisite of one year on the force and that he did not agree with his job ratings. In such grievance, he alleged that a number of promotions awarded by the department were not in accord with the department policies governing promotions. He stated that he felt that all promotions "outside" department policy should be rescinded. The department head responded negatively, and Thompson appealed to the personnel director, P.C. McLaurin, Jr. (McLaurin). After considering Thompson's allegations in his written grievance and the response of the department head, McLaurin concluded that the allegations lacked merit in relation to Thompson's complaints about his ratings, but that the City had erred in the 1981 round of promotions by allowing some officers to apply for promotions before the end of their probationary periods. He stated that such error would not be repeated in future promotion competitions.
Second, Thompson asserts that during his tenure as a police officer for the City he observed "acts of dishonesty and misconduct includ[ing] such matters as having extra-marital affairs while on duty, mistreatment of black persons, and theft of confiscated property." After several of the officers he observed engaging in such misconduct received promotions, Thompson alleges that he made a number of oral complaints about improper promotions and various acts of misbehavior on the part of other officers, and he aided others in filing similar grievances. In his affidavit before the district court, he states that a number of officers--including Lindley, Sisk and Raines, among others--lost promotions as the direct result of complaints lodged by him or that he helped prepare.
Thompson further alleges that his grievances and aid to others interested in filing grievances earned him the enmity of a number of members of the force, including the individual defendants. Most explicitly, Thompson alleges that Lindley said that he would "get even" with him and that Raines vowed to get him fired. According to Thompson, the individual defendants embarked upon a vendetta against him that ultimately led to his termination from the police force. In 1982, Thompson maintains that Lindley and Raines claimed that he had committed a burglary and that Sisk--attempting to have an action brought against Thompson--told the personnel officer for the City that Thompson committed the burglary as alleged by Raines and Sisk and was also a suspect in several other felonies being investigated. The case against Thompson for the alleged burglary was dismissed in a preliminary hearing. Thompson also claims that Lindley attempted to have him indicted on two other occasions.
In 1987, Thompson avows that Raines made a number of complaints against him. Pursuant to a complaint that he was engaging in an extra-marital affair, Thompson was found guilty of "conduct unbecoming to a police officer" and placed on probation. Thompson, however, alleges--and collected several supporting affidavits--that while affairs were common among police officers, he was the only one ever disciplined for such behavior. In fact, he asserts that Lindley engaged in an extra-marital affair during his on-duty hours, but received no punishment.
In the fall of 1987, acting Chief-of-Police Sisk recommended--and the Board of Aldermen of the City accepted such recommendation--that Thompson be terminated. Sisk based his recommendation on an accusation by Lindley that Thompson used unnecessary force in detaining a juvenile for questioning and failed to file a "use of force" report. The complaint against Thompson arose out of an investigation of "trespassing" at a shop. According to Thompson, he "grab[bed]" a young man who attempted to leave while he was questioning him and placed the young man in the police car while he continued his investigation. Thompson states that he used no unreasonable force and that he did not harm the young man and, therefore, never filed a report of the incident. In Thompson's view, his termination constitutes the culmination of the vow of Lindley, Sisk and Raines to achieve retribution for their earlier loss of promotions. For these reasons, Thompson alleges that his termination for the use of unreasonable force while on probation for "conduct unbecoming to a police officer" was pretextual and that he was truly fired for his exercise of his first amendment rights in complaining--in his words--"that officers were being promoted, not based on merit, but based upon political favoritism, and that officers guilty of dishonesty and misconduct were being promoted."
Thompson also contends that the treatment he received violates the equal protection clause of the fourteenth amendment because other officers who engaged in similar activities (e.g., having extra-marital affairs and using the same degrees of force as he allegedly did), but who made no complaints, were not fired. Consequently, on March 9, 1988, Thompson brought a section 1983 suit against the Defendants. 1 He sued the individual defendants in both their individual and official capacities.
The Defendants responded to Thompson's suit by filing a motion to dismiss, or alternatively, for summary judgment. The district court characterized the motion as follows:
The defendants move for summary judgment, stating that the individual defendants are protected by qualified immunity; that the City is entitled to summary judgment as plaintiff has failed to allege or produce facts to support a city policy which proximately led to the alleged deprivation; that the plaintiff's First Amendment claim is based on unprotected private-interest speech; and that plaintiff's equal protection claim is flawed because plaintiff has not sufficiently alleged class-based discrimination, and because the termination was rationally related to a legitimate state interest (footnote omitted).
Noting the documentation submitted with the motion and that submitted in response, the district court considered the motion as one for summary judgment and, on January 3, 1989, denied Defendants' motion for summary judgment. Sisk, Lindley and Raines appealed on the issue of their entitlement to qualified immunity.
Subsequently, on February 2, 1989--acting on the Defendants' motion--the district court also issued an order certifying interlocutory appeal. The district court viewed the following issues as central to its denial of Defendants' motion for summary judgment and worthy of interlocutory appeal:
(1) whether plaintiff's grievance protesting the promotion of certain persons within the police department, or assisting other police officers in filing similar grievances, gives rise to speech about issues of public concern so as to provide the basis of a First Amendment violation, and (2) whether plaintiff's proof establishes an issue for trial on his Fourteenth Amendment claim.
We granted the Defendants' motion to appeal the district court's interlocutory order and, on March 22, 1989, their motion to consolidate their appeals on the qualified immunity issue and the issues relating to the first and fourteenth amendments. We now affirm the district court's denial of summary judgment.
The issues relating to the first and fourteenth amendments in this case come before us on interlocutory appeal. Under section 1292(b), the district court may certify an otherwise unappealable order for appeal if the court is "of the opinion that such order involves a controlling question of law as to...
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