Davenport v. University of Arkansas Board of Trustees

553 F.3d 1110

8th Cir.

2009

Check Treatment

Docket

Alfonso DAVENPORT, Appellant, v. UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES, Governing Board of the University of Arkansas at Pine Bluff (“UAPB“); Lawrence A. Davis, Jr., Dr., Individually and in His Official Capacity; Willie Gillmore, Individually and in His Official Capacity; Elbert Bennett, Individually and in His Official Capacity, Appellees.

No. 08-1438

United States Court of Appeals, Eighth Circuit

Filed: Feb. 2, 2009

Submitted: Dec. 11, 2008.

ule I of the Controlled Substances Act (CSA) pursuant to Public Law 106-172. 65 Fed.Reg. 13,235 (March 13, 2000), codified at 21 C.F.R. pts. 1301 and 1308.

Berger additionally claims that the DEA‘s final rule was invalid because it did not comply with the rulemaking procedures of 21 U.S.C. § 811(h)(1)(A). However, as explained, the temporary scheduling procedures of section 811(h) do not apply to the permanent scheduling directed by the Farais-Reid Act. The DEA‘s final rule was valid; the scheduling of GHB was still in effect at the time of the conduct charged in Berger‘s indictment.

B.

Berger also argues that the controlled-substance-analogue statute is unconstitutionally vague. To defeat a vagueness challenge, a penal statute must pass a two-part test: The statute must first provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement. United States v. Bamberg, 478 F.3d 934, 937 (8th Cir.2007). Berger contends that the analogue statute lends itself to arbitrary enforcement.

A controlled-substance analogue is a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II” and which has a similar effect on the central nervous system or is represented or intended to have a similar effect on the central nervous system. 21 U.S.C. § 802(32). Berger was convicted of crimes involving BDO, a GHB analogue. He claims that gamma-valerolactone (GVL)—a legal substance—also fits the definition of a GHB analogue. Therefore, he concludes that since the statute is enforced with respect to BDO, but not GVL, it lends itself to arbitrary enforcement.

According to experts for both sides, GHB and BDO are both open compounds that do not contain a methyl group. GVL is a closed compound that does contain a methyl group. Therefore, while the chemical structure of BDO is substantially similar to that of GHB, the chemical structure of GVL is not. Further, BDO actually metabolizes into GHB in the human body, but GVL does not. On this record, GVL is not a controlled-substance analogue of GHB under 21 U.S.C. § 802. Therefore, the statute is not unconstitutionally vague.

II.

The judgment of the district court is affirmed.

Theresa L. Caldwell, Little Rock, AR, for appellant.

Adria Nobles Kimbrough, Little Rock, AR, for appellee.

Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,¹ District Judge.

BENTON, Circuit Judge.

Alfonso Davenport sued the University of Arkansas Board of Trustees and officials of the University of Arkansas at Pine Bluff (collectively “the University“) under 42 U.S.C. §§ 1981 and 1983 based on his failure to receive a promotion. The district court² granted summary judgment to the University. Davenport appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Davenport has been employed by the University‘s Department of Public Safety (DPS) for 24 years. He currently holds the position of Public Safety Officer II. His duties include patrolling campus, acting as a shift supervisor, developing firearm training, and investigating crime. In 1999, Davenport complained to University officials about the DPS Chief‘s misuse of resources, and the lack of DPS equipment, uniforms, and parking. In January 2002, Davenport was told to report to an Arkansas State Police investigator who was interviewing employees about the DPS Chief‘s private investigation firm. Davenport gave a statement that he had never worked for the firm; this statement was never disclosed to any University official. In July 2002, the DPS Chief resigned just before his indictment for the illegal misuse of DPS resources.

In August 2002, Davenport applied for the vacant Chief position. The former Chief‘s next-in-command was appointed Interim Chief. In October 2004, applicants were again sought for the Chief position; Davenport applied once more. In January 2005, after the close of the application period, the position was reopened. A former DPS Major was encouraged to apply and eventually hired.

II.

This court reviews a district court‘s grant of summary judgment de novo, viewing the evidence most favorably to the non-moving party. Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir.2005). To defeat a motion for summary judgment, a party may not rest upon allegations, but must produce probative evidence sufficient to demonstrate a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986).

A.

Davenport alleges unlawful retaliation for protected speech, in violation of the First Amendment. To establish a prima-facie case of unlawful retaliation for protected speech, Davenport must prove: (1) he engaged in activity protected by the First Amendment; (2) the University took an adverse employment action against him; and (3) his protected speech was a substantial or motivating factor in the University‘s decision to take the adverse employment action. See Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654-55 (8th Cir.2007).

Davenport alleges that both his 1999 and 2002 statements are entitled to First Amendment protection. Davenport‘s speech is entitled to First Amendment protection if: (1) he spoke as a citizen, and not as an employee, on a matter of public concern, and (2) his right to free speech outweighs the University‘s interest in promoting the efficiency of its public services. See Bradley v. James, 479 F.3d 536, 538 (8th Cir.2007); Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir.1999).

When making a statement pursuant to his official duties, a public employee is not speaking as a citizen. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Davenport‘s duties did not include reporting either wrongdoing by a superior officer or a lack of resources. With regard to his 1999 statements, Davenport was speaking as a citizen on a matter of public concern. See Bailey v. Dep‘t of Elementary & Secondary Educ., 451 F.3d 514, 519 (8th Cir.2006) (speech that only peripherally pertains to public funds is not a matter of public concern; the expenditure of public funds, though, is generally regarded as a matter of public concern); Campbell v. Ark. Dep‘t of Corr., 155 F.3d 950, 958-59 (8th Cir.1998) (finding a prison warden‘s speech to a superior reporting corruption and lack of security was protected); Powell v. Basham, 921 F.2d 165, 167 (8th Cir.1990) (determining a deputy sheriff‘s complaints to superiors about a new promotion system concerned the efficient operation of the department, which was a matter of public concern). Further, the record fails to show that silencing Davenport‘s protected speech would advance the University‘s interest in promoting the efficiency of its public services. Therefore, Davenport‘s 1999 speech is entitled to First Amendment Protection.

As a public safety officer, Davenport had a duty to cooperate with the Arkansas State Police investigation. So, his 2002 statements were given in his capacity as an employee. See Bradley, 479 F.3d at 538. Therefore, his 2002 speech is not entitled to First Amendment protection.

The University‘s decisions not to promote Davenport to Chief in 2002 and 2005 are the adverse employment actions in this case. However, Davenport does not submit any evidence tending to show that his protected speech from 1999, years earlier, was a substantial or motivating factor in his non-selections as Chief. Davenport repeatedly mentions that his peers told him he would never receive a promotion as long as the University‘s Chancellor remained. This is inadmissible hearsay. See Fed.R.Evid. 801, 802. Davenport stresses that the former DPS Chief retaliated against him for his speech. However, there is no evidence linking the former Chief to the adverse employment actions. Finally, Davenport emphasizes that the Chancellor asked if he had anything to say about the resignation of the former Chief during a DPS staff meeting in 2002. The Chancellor‘s isolated question is not evidence that Davenport‘s protected speech from 1999 was a substantial or motivating factor in his non-selections as Chief. Thus, Davenport fails to meet the third requirement for establishing a prima-facie case of unlawful retaliation for protected speech. The district court did not err in dismissing his First Amendment claim.

B.

Davenport asserts that his non-selections as Chief violated his Fourteenth Amendment right to procedural due process. To establish a violation of procedural due process, a plaintiff must show that he has been deprived of a constitutionally protected life, liberty or property interest. Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir.1995). A property interest in a promotion cannot arise from unilateral expectations, but instead, an individual must have a legitimate claim of entitlement to the promotion. Meyer v. City of Joplin, 281 F.3d 759, 761 (8th Cir.2002). Davenport does not submit any evidence showing a legitimate claim of entitlement to the Chief position. Therefore, he was not deprived of a constitutionally protected property interest. The district court did not err in dismissing his Fourteenth Amendment claim.

III.

The judgment of the district court is affirmed.

Notes

The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, sitting by designation.

The Honorable Beth M. Deere, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for decision by the consent of the parties pursuant to 28 U.S.C. § 636(c).