Duke v. HamilDuke v. Hamil
ORDER
This case comes before the Court on Defendant Bobby Hamil’s Motion to Dismiss [11], Defendant Board of Regents of the University System of Georgia’s Motion to Dismiss [12], Defendant Bobby Hamil’s Motion to Dismiss Plaintiffs Amended Complaint [18], and Defendant Board of Regents of the University System of Georgia’s Motion to Dismiss Plaintiffs Amended Complaint [19]. After reviewing the record, the Court enters the following Order.
Background
This case arises out of Plaintiffs demotion following his posting of an image of the Confederate flag accompanied by the phrase, “It’s time for the second revolution,” on the social media website Face-book. At the time of the November 2012 posting, Plaintiff Rex Duke was a police officer with over thirty years of experience. (Compl., Dkt. [1] ¶ 7.) In 2008 he achieved the rank of Captain and became the Deputy Chief of Police of the Clayton State University Police Department (“CCSU Police Department” or “Department”), where had been employed since May 1, 2004. (Id. ¶¶ 7-8.) In his eight years at the Department, he received positive performance reviews, had no significant history of discipline, and even served as Interim Chief of Police for eleven months in 2007. (Id. ¶¶ 9-10.)
On November 6, 2012, shortly after the conclusion of the 2012 presidential election, Plaintiff posted the aforementioned image and statement on his personal Facebook page. (Id. ¶ 11.) Plaintiff intended only those with direct access to his page, such as close friends and family, to view the post. (Id.) He was not on duty at the time, and neither the post nor Plaintiffs Facebook profile referenced his employment at the CSU Police Department or his job as a police officer. (Id. ¶ 13.) He expressed no grievances related to the Department’s policies or his colleagues; in
Plaintiff took down the post within an hour, but during that period someone provided an image of the post to Atlanta television station WSB. (Id. ¶¶ 16-17.) A reporter contacted Plaintiff and CSU officials, and the station subsequently ran an evening news story discussing both the Facebook post and Plaintiffs position as Deputy Chief the CSU Police Department. (Id. ¶ 17.) The Department received anonymous complaints against Plaintiff, prompting CSU officials to commence an official investigation. (Id. ¶ 18.) In the ensuing official report, Defendant Bobby Hamil, the Chief of Police of the CSU Police Department, recommended Plaintiffs demotion and stated that the post “was inappropriate for someone in [Plaintiffs] position[,] ... [and] officers ... should not espouse political beliefs in public.” (Id. ¶¶ 20-22.) Accordingly, on January 7, 2013, Plaintiff was demoted from the rank of Captain to Detective and was stripped of his duties as Deputy Chief, resulting in a $15,000 cut in pay. (Id. ¶ 20.) Finally, on April 22, 2013, Defendant Hamil reassigned Plaintiff from his day-shift patrol duties to the less desirable morning shift, which is typically assigned to less experienced officers, “in contravention of well-established customs and practices that seniority is a major factor in determining shift assignments.” (Id. ¶ 25.)
On May 16, 2013, Plaintiff filed this action against Defendant Hamil in his official and individual capacities and against the Board of Regents of the University System of Georgia (“Board of Regents”), the state entity that operates CSU and other public universities in Georgia, alleging that they demoted Plaintiff in violation of the First Amendment as a means “to punish [him] for privately advocating for his personal political beliefs, and sought to restrain his ability to privately advocate for those personal beliefs.” (Id. ¶ 28.) Plaintiff states that his speech caused no disruption to the CSU Police Department’s law enforcement purposes or the educational purposes of CSU as a whole. (Id. ¶ 29.) Furthermore, Plaintiff alleges that Defendants’ actions have had “a chilling effect upon expression in general” at the Department. (Id. ¶ 30.) As a result of his demotion and reassignment, Plaintiff experienced significant emotional distress and financial hardship, which in turn impacted his health by exacerbating a pre-existing heart condition. (Id. ¶ 26.)
Plaintiff later filed an Amended Complaint [14] stating that he seeks relief against Hamil pursuant to both 42 U.S.C. § 1983 and the doctrine of Ex parte Young. (Am. Compl., Dkt. [14] ¶ 33.) Plaintiff also alleged for the first time that Defendants were liable for his ultimate termination, but Plaintiff subsequently clarified that he voluntarily resigned from the CSU Police Department after filing this action, and that the use of the word “termination” in the Amended Complaint [14] was a scrivener’s error. (Pl.’s Br. in Opp’n, Dkt. [20] at 3-4.) Thus, the only allegations of retaliation in this case pertain to Plaintiffs demotion and reassignment.
Finally, Plaintiff seeks a declaratory judgment stating that his First Amendment rights were violated; an injunction reinstating him to his prior rank, title, and pay grade; an injunction barring infringement of Plaintiffs or other employees’
Defendants Hamil and Board of Regents each filed motions to dismiss on June 20, 2013, and July 3, 2013, respectively, and again filed motions to dismiss on July 29, 2013, after Plaintiff filed his Amended Complaint [14].
Discussion
As a preliminary matter, in light of Plaintiffs Amended Complaint [14], Defendant Hamil’s Motion to Dismiss [11] and Defendant Board of Regents’ Motion to Dismiss [12] are DENIED as moot. However, the Court considers arguments from Defendants’ earlier motions that pertain to the motions to dismiss the Amended Complaint [14].
I. Motion to Dismiss Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While this pleading standard does not require “detailed factual allegations,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
At the motion to dismiss stage, “all-well pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc.,
II. Board of Regents of the University System of Georgia’s Motion to Dismiss
Plaintiff alleges that under 42 U.S.C. § 1983, “the Board [of Regents] is liable for Hamil’s official conduct as a final policymaker for the Board with respect to the employment practices of the CSU Police Department and the employment and ultimate [demotion] of Duke.” (Compl., Dkt. [14] ¶ 33.) “In order to prevail in a civil rights action under section 1983, ‘a plaintiff must make a prima facie showing of two elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law.’ ” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist.,
III. Bobby Hamil’s Motion to Dismiss
Plaintiff brings his § 1983 claim against Defendant Hamil in both his official and individual capacities. He also seeks prospective relief from Hamil in his official capacity under Ex parte Young.
A. Official-Capacity Claim and Sovereign Immunity
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
As stated above, “[i]n order to prevail in a civil rights action under section 1983, ‘a plaintiff must make a prima facie showing of two elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law.’ ” Marshall Cnty. Bd. of Educ.,
Official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Social Sews.,
Nevertheless, Plaintiff argues that he is entitled to prospective injunctive relief against Hamil as a state official.
According to Plaintiff, “the injunctive relief sought ... merely seeks to compel Hamil, as the head of the CSU Police Department, to respect the First Amendment Rights of his employees.” (PL’s Br. in Opp’n, Dkt. [20] at 5.) Specifically, in his Amended Complaint [14], Plaintiff asks the Court to do the following:
c) Issue a mandatory, preliminary and permanent injunction barring Defendants from continuing to take actions that infringe upon the First Amendment rights of [Plaintiff] or any other employee;
d) Issue a mandatory, preliminary and permanent injunction requiring Defendants to implement a rigorous policy protecting employees’ First Amendment rights and to provide meaningful training to all employees of the Board of Regents of the University System of Georgia regarding employees’ rights to freedom of expression and freedom of speech, as well as ways to avoid First Amendment violations and retaliation .... ”
1. Relief Redressing Plaintiffs Rights
Assuming, without deciding, that Plaintiffs demotion was a violation of his First Amendment rights, the Court finds that the violation is not ongoing because Plaintiff has since resigned. Plaintiff does not allege that he was terminated in retaliation for his speech, and “employee resignations are presumed to be voluntary” absent evidence that the employee was unable “to exercise free choice.” Hargray v. City of Hallandale,
2. Relief Aimed at Protecting All Employees
Plaintiff also contends that there is an ongoing constitutional violation against all employees because “the official actions of Hamil, on behalf of CSU as the head of the CSU Police Department, reflect a willingness to punish employees for the exercise of their rights under the First Amendment.” (Pl.’s Br. in Opp’n, Dkt. [20] at 7.) Other than alleging that “Defendants’ actions ... have a chilling effect upon expression in general,” (Compl., Dkt. [1] ¶ 30), Plaintiff alleges no specific facts to show that Defendant Hamil has been suppressing the speech of his employees. Simply alleging that Plaintiffs demotion has chilled others’ First Amendment rights fails to show a plausible constitutional violation, let alone one that is ongoing, and thus Ex parte Young is inapplicable. Consequently, Plaintiffs official-capacity claim fails.
B. Individual-Capacity Claim and Qualified Immunity
Next, the doctrine of qualified immunity protects government officials performing discretionary functions from being sued in their individual capacities. Wilson v. Layne,
As a preliminary matter, Defendant Hamil was acting in his discretionary authority as Chief of Police of the CSU Police Department. A government employee acts in his discretionary authority when “(a) performing a legitimate job-related function ... (b) through means that were within his power to utilize.” Holloman v. Harland,
Next, whether an official is entitled to qualified immunity is determined by a two-step inquiry. One inquiry is “whether the plaintiff’s allegations, if true, establish á constitutional violation.” Barnett v. City of Florence,
1. First Amendment Retaliation
To state a claim for retaliation in violation of the First Amendment, Plaintiff, as a government employee, must show that his speech was constitutionally protected and that the speech was a substantial or motivating factor in Defendant’s decision to demote him. Boyce v. Andrew,
a. Did Plaintiff speak as a citizen on a matter of public concern ?
The government as employer has a stronger interest in regulating the speech of its employees than in regulating the speech of the citizenry in general. Connick v. Myers,
For the first inquiry, a court must examine “whether a government employ
Second, the Court decides if the speech was in fact a matter of public concern based on “the content, form, and context of the employee’s speech.” Bryson,
b. Did Plaintiff’s interest in speaking outweigh the CSU Police Department’s countervailing interests?
Under the second prong of the Pickering analysis, the Court must weigh Plaintiffs First Amendment interests against the interest of the CSU Police Department, “as an employer, in promoting the efficiency of the public services it performs through its employees.”
Several factors must be considered in determining whether the government’s legitimate interest in efficient public service outweighs the government employee’s interest in protected freedom of speech. Specifically, courts must assess “(1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.” Martinez v. City of Opa-Locka,
Plaintiff alleges that “Duke’s advocacy did not cause any disruption to the law enforcement purposes of the Clayton State University Police Department, nor the educational purposes of Clayton State University in general.” (Compl., Dkt. [1] ¶ 29.) Even so, Defendant Hamil had an interest in preventing the speech from impeding the Department’s functions. As the Supreme Court stated in Connick,
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.
After all, while the Court acknowledges that Plaintiff intended to express his disapproval of Washington politicians, on its face his speech could convey a drastically different message with different implications. Many of these messages are controversial, divisive, and prejudicial to say the least. Because these potentially offensive messages came from the Department’s second-in-command, Hamil did not have to wait to see if the controversy affected the discipline, mutual respect, or trust among the officers Plaintiff supervised before addressing it. See Gresham v. City of Atlanta, No. 1:10-CV-1301-RWS,
In addition to possible internal disruption, the public attention the speech received also implicated the Department’s reputation and the public’s trust. Plaintiff argues that “there is nothing in the record to even suggest that Plaintiffs post threatened the CSU police department’s reputation.” (PL’s Br. in Opp’n, Dkt. [13] at 20.) Plaintiff asserts that it is conjecture to infer Plaintiffs speech threatened an impact on reputation because it “ask[s] the Court to ‘assume’ some damage to reputation arose from the speech.” (Id.) But a genuine potential for speech to harm a police department’s reputation also justifies an employer taking action before that harm is realized. See Connick,
Next, the Court considers the time, place, and manner of Plaintiffs Facebook post. At the time he made the post, Plaintiff was off duty and off campus, thus heightening Plaintiffs First Amendment interest. Plaintiff states that the place of speech also favors him because his post “was not widely disseminated, but simply posted to his private Facebook account.” (PL’s Br. in Opp’n, Dkt. [13] at 20.) Indeed, he intended the post “to be viewed only by close friends and family that had access to his Facebook page.” (Compl., Dkt. [1] ¶ 11.) Yet despite his intentions and his quick removal of it, the post became public after someone provided the image to a television station. This illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination. And even though there was no social media policy prohibiting political posts on websites like Face-book, the absence of such a policy did not foreclose a response to speech that compromised the Department’s interests.
Plaintiff further states that the manner of the speech was not violent, threatening, obscene, or in any way directed at the CSU Police Department. (PL’s Br. in Opp’n, Dkt. [13] at 21.) The use of a symbol open to so many controversial interpretations, however, was likely offensive to some members of the public. Plaintiffs intent may not have been to convey an offensive message, but his chosen manner of speech left ample room for interpretation.
Finally, the Court examines the context of Plaintiffs speech. The Court recognizes Plaintiffs interest in expressing his political views, especially during an election season. Indeed, political speech “is the essence of self-government,” and it “occupies the highest rung of the hierarchy of First Amendment values, and is
After carefully weighing these factors, the Court finds that the CSU Police Department’s interests outweigh Plaintiffs interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official. Despite Plaintiffs intention to limit who saw his off-duty speech, his choice to place it on a social media platform risked sharing it with a much broader audience. Further, even though it is critical to safeguard political speech, the context of making this particular post around an election also risked dividing the Department’s ranks and the CSU community. Thus, Defendant Hamil did not violate the First Amendment when he demoted Plaintiff to maintain both the CSU Police Department’s good working relationships and its reputation.
2. Did Defendant Hamil Violate a Clearly Established Constitutional Right?
Even if the Court concluded that Hamil did violate Plaintiffs First Amend-, ment rights, Hamil would still be entitled to qualified immunity because that right was not clearly established. A constitutional right is clearly established “only if its contours are ‘sufficiently clear that a reasonable official would understand what he is doing violates that right.’ ” Vaughan v. Cox,
In Busby v. City of Orlando, the Eleventh Circuit addressed the issue of qualified immunity in a case involving a police officer’s First Amendment rights. The Court held:
The Supreme Court has never established a bright-line test for determining when a public employee may be disciplined in response to that employee’s speech. Instead, Pickering established a case-by-case balancing of interests 'test.... Because no bright-line standard exists to put the employer on notice of a constitutional violation, this circuit has recognized that a public employer is entitled to immunity from suit unless the Pickering balance “would lead to the inevitable conclusion that the discharge of the employee was unlawful.”
Busby,
Conclusion
For the foregoing reasons, Defendant Hamil’s Motion to Dismiss [11] and Defendant Board of Regents of the University System of Georgia’s Motion to Dismiss [12] are DENIED as moot. Defendant Ham-il’s Motion to Dismiss Plaintiffs Amended Complaint [18] and Defendant Board of Regents of the University System of Georgia’s Motion to Dismiss Plaintiffs Amended Complaint [19] are GRANTED.
Notes
. Congress did not abrogate Eleventh Amendment immunity for claims brought pursuant to § 1983. Quern v. Jordan,
. Plaintiff does not dispute that the Board of Regents is an arm of the state, but he does contend that the Board of Regents should remain a defendant if Hamil is found liable in his official capacity under Ex parte Young. As discussed more fully in Part III.A, infra, Plaintiff's Ex parte Young claim against Hamil fails. Moreover, holding an official liable for prospective relief under Ex parte Young does not justify retaining the state as a defendant. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
. While Plaintiffs Amended Complaint broadly states that "Defendant Hamil is liable, both personally and in his official capacity under Section 1983 and pursuant to the doctrine of Ex Parte Young,” (Dkt. [14] ¶ 33), Plaintiff has since clarified that his claim against Defendant Hamil in his official capacity is limited to prospective relief only. (See Pl.’s Br. in Opp'n, Dkt. [20] at 8 ("To the extent Plaintiff is seeking any non-prospective injunctive relief, he seeks that relief against Hamil in his personal, not official capacity.”)).
. Pickering v. Bd. of Educ.,