Veney v. Hogan, 94-3757

• Decision Date: 24 January 1996
• Docket Number: No. 94-3757,94-3757
• Parties: , 11 IER Cases 376 Terry A. VENEY, Plaintiff-Appellee, v. Michael HOGAN; Carol Hernandez; Frank D. Fleischer; and Martha Knicely, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 917

70 F.3d 917

33 Fed.R.Serv.3d 37, 11 IER Cases 376

Terry A. VENEY, Plaintiff-Appellee, v. Michael HOGAN; Carol Hernandez; Frank D. Fleischer; and Martha Knicely, Defendants-Appellants.

No. 94-3757.

United States Court of Appeals Sixth Circuit.

Argued Sept. 18, 1995.

Decided Dec. 5, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 24, 1996.

Michael A. Moses (argued and briefed), Columbus, OH, for Plaintiff-Appellee.

Jack W. Decker (argued and briefed), Office of Attorney General of Ohio, Columbus, OH, for Defendants-Appellants.

Before: NORRIS and SUHRHEINRICH, Circuit Judges; FORESTER, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

The question raised by this appeal is whether, in view of the unique framework within which a district court considers the defense of qualified immunity, a plaintiff bringing an action against individual governmental officials under 42 U.S.C. Sec. 1983 must satisfy a heightened standard of pleading when the defense is raised pursuant to a motion to dismiss. We hold that there is a heightened standard. Because the amended complaint of plaintiff Terry A. Veney failed to plead sufficient facts to support his claim that defendants deprived him of rights secured by the First Amendment, we conclude that they are entitled to qualified immunity.

I.

Plaintiff began working for the State of Ohio in 1978 as an Administrative Assistant 3, a classified civil service position. Gradually, he rose through the ranks to the unclassified positions of Mental Health Administrator 3 and Mental Health Administrator 4. Throughout his tenure, plaintiff worked for the Ohio Department of Mental Health ("ODMH").

On January 22, 1990, Veney was demoted to his original classified position, Administrative Assistant 3. An appeal of that action to the state's Personnel Board of Review proved unavailing, as did a subsequent action filed in state court. Veney v. Massillon Psychiatric Ctr., 66 Ohio App.3d 665, 585 N.E.2d 941 (1991). In his state court suit, Veney limited his claims to violations of state law procedures. ¹

After these adverse decisions, plaintiff turned to the federal courts and invoked 42 U.S.C. Sec. 1983, naming six employees of the State of Ohio as individual defendants. ² In a two-count amended complaint, he first alleged that defendants' breach of state procedures violated his right to due process. The district court dismissed this count on res judicata grounds because the Ohio court of appeals had already held that plaintiff was not entitled to the procedural protections that he relied upon to support his allegation of due process violations. This decision has not been appealed.

The amended complaint's second count (styled "remaining constitutional claims") contains the following paragraphs:

Defendants retaliated against Plaintiff for expressions of his First Amendment rights, such as utilizing procedures for O.A.C. 5122-7-11(F) [governing rights available when appointment revoked] as well as the departmental grievance procedure, complaining of Defendant Fleischer's long distance phone calls for personal use, complaining of Defendant Fleischer's application of the relevant regulations and policies of the Massilon [sic] Psychiatric Center, the Department of Mental Health as well as other State and Federal Laws, challenging improper hiring and promotional practices with respect to other employees in violation of civil service laws and affirmative action laws, attempting to join an employee organization as defined in O.R.C. Section 4117.01 and as authorized O.R.C. Section 4117.03(A), and complaining against Defendants for other wrongful and improper actions, thus harming or infringing upon his rights under theFirst and Fourteenth Amendments of the U.S. Constitution.

Defendants breached their duties to Plaintiff by revoking his appointment, demoting him in position, and denial of promotional and employment opportunities as described above, and otherwise injuring him in his employment and his reputation for reasons unrelated to their work rules and policies, for reasons in violation of the Plaintiff's constitutional rights and for reasons contrary to law and that the Defendants knew or should have known that their conduct would cause the Plaintiff great pecuniary loss and expense.

Complaint, pp 33-34. While his initial complaint ³ raised a First Amendment claim, it did not include any of the detail found in the amended complaint.

The district court denied defendants' motion to dismiss with respect to the First Amendment claim. In holding that the defense of qualified immunity did not apply, the court noted that "[a]n adverse employment action taken against a public employee in retaliation for the exercise of his First Amendment rights has been recognized as a claim under Sec. 1983 by the United States Supreme Court since at least 1977. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)."

With respect to whether plaintiff alleged sufficient facts to constitute a violation of First Amendment rights, the district court read the Supreme Court's opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), for the proposition that "the liberal pleading standards of Rule 8(a) apply with equal force to assertions of qualified immunity on behalf of individual defendants." In reaching this conclusion, however, the district court acknowledged that Leatherman explicitly reserved the qualified immunity issue for another day: "We [ ] have no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." 507 U.S. at 166-67, 113 S.Ct. at 1162.

II.

Qualified immunity extends to "government officials performing discretionary functions ... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As the Supreme Court explained in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), qualified immunity represents

an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.

Id. at 526, 105 S.Ct. at 2815. Whether an official "may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (citations omitted). For a law to be "clearly established" in the context of qualified immunity,

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Id. at 640, 107 S.Ct. at 3039 (citations omitted).

As the court made clear in Harlow, the appropriateness of qualified immunity represents a "threshold" legal question for the district court. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The trial court need not deny a defendant the right to qualified immunity simply because a complaint adequately alleges violation of clearly established law. Rather, a plaintiff must allege sufficient facts "to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.

Since qualified immunity is an affirmative defense that must be pleaded by the defendant official, Harlow, 457 U.S. at 815, 102 S.Ct. at 2736, the plaintiff need not fully anticipate the defense in the complaint. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). It follows, then, that when a qualified immunity challenge is made to the complaint, the plaintiff is entitled to the opportunity to come forward with additional facts or allegations that show not only the violation of his rights, but also that these rights were so clearly established when the acts were committed that any official in the defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987). If this pleading burden is not carried by plaintiff in either the original complaint or by a pleading in response to defendant's assertion of the qualified immunity defense, dismissal is proper. Cameron v. Seitz, 38 F.3d 264, 273 n. 2 (6th Cir.1994).

A question then remains concerning the specificity with which plaintiff must plead facts in order to satisfy his burden of responding to the defense. At first glance it may appear that the district court's duty to protect a defendant's substantive right to qualified immunity, Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815, is in tension with the liberal pleading requirements that are said to be contemplated by Federal Rules of Civil Procedure 8(a)(2) and 8(e)(1). ⁴ For if it is the task of the district court "expeditiously to weed out suits ... without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits," Siegert v. Gilley, 500 U.S. 226, 232, 111...