Case Information
*1 Bеfore RUSSELL, NIEMEYER, and MOTZ, Circuit Judges. _________________________________________________________________ Reversed and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Russell concurred. Judge Motz concurred in the judgment only.
COUNSEL
ARGUED: William Alfred Blancato, BENNETT & BLANCATO, L.L.P., Winston-Salem, North Carolina, for Appellant. Sean Patrick Devereux, WHALEN, HAY, PITTS, HUGENSCHMIDT, MASTER & DEVEREUX, P.A., Asheville, North Carolina; C. Frank Gold- smith, Jr., GOLDSMITH, GOLDSMITH & DEWS, Marion, North Carolina, for Appellees.
_________________________________________________________________ OPINION
NIEMEYER, Circuit Judge:
When Buncombe County (North Carolina) Sheriff Charles H. Long received a complaint from a female inmate in the Buncombe County Detention Center that she had been raped by a jailer, Sheriff Long conducted a brief investigation and then referred the matter to the North Carolina Bureau of Investigation for a criminal investigation. While the criminal investigation was continuing, Sheriff Long dis- missed both the accused jailer and the matron on duty on the floor where the incident allegedly occurred. He also issued a press release announcing his action, and in further public comments, he stated that if the dismissed jailers were cleared, they could reapply for their jobs. Criminal charges filed against the jailer accused of the rape were ulti- mately dropped, and the matron on duty was never criminally charged. Both, however, appeared to have been violating detention center policy at the time of the alleged incident.
Both dismissed employees filed actions against Sheriff Long under 42 U.S.C. § 1983, alleging that they were deprived of their property interests in their employment and their liberty interests in their reputa- tions without due process of law in violation of the Fourteenth Amendment. They also alleged state law claims. Sheriff Long filed a motion for summary judgment in which he asserted, among other things, qualified immunity and immunity under the Eleventh Amend- ment. The district court denied the motion and this interlocutory appeal followed.
Because we find that Sheriff Long's conduct was shielded by quali- fied immunity and that the dismissed employees failed to assert a suf- ficient claim against him in his official capacity, we reverse and remand these actions to the district court with instructions to dismiss the § 1983 claims filed against Sheriff Long. I
When inmate Sharon Brock returned to the Buncombe County Detention Center from work release on the evening of July 16, 1993, she complained to the matron on duty that on the previous evening she had been raped in her cell by Ronnie Jackson, the supervising jailer on duty at the time of the alleged assault. Inmate Brock showed the matron bruises on her pelvic region and scrapes on her chest and labia which she claimed were produced during the attack. The matron contactеd her supervisor, and the Sheriff's Department immediately began an investigation. When Sheriff Long learned of the allegations the next morning, he suspended Jackson and another jailer, Teresa Penland, with pay, pending the results of the investigation. Penland was the matron on duty on the floor at the time of the alleged assault. Jackson denied any sexual contact with inmate Brock, and Penland denied any knowledge of an assault, but both cooperated with the Sheriff's investigation, giving accounts of their interactions with Brock on the day in question. While some details of their stories dif- fered, both stated that Brock was upset and periodically tearful on July 15, spending varying periods out of her cell on the telephone try- ing to arrange transportation for her work release the following day. Both also acknowledged that Jackson had brought inmate Brock some food and that another male jailer, Kelce Lytle, had accompanied Jack- son to Brock's floor on that same day. Jackson and Lytle both reported that Penland had escorted Lytle to see some inmates, leaving Jackson unaccompanied on the women's floor for some period of time, in violation of detention center policy.
Several days after commencement of the departmental investiga- tion, Sheriff Long requested that the North Carolina State Bureau of Investigation ("SBI") undertake an independent investigation into potential criminal violations. When the SBI began its investigation, the Sheriff's Department ceased its own. Although no one in the Sher- *4 iff's Department participated in the SBI investigation, the SBI briefed Sheriff Long on its progress. After Sheriff Long learned that Jackson had failed a polygraph test when asked if he had ever had sexual con- tact with Brock and that Brock's own polygraph had been negative, but inсonclusive, he terminated the employment of both Jackson and Penland on August 5, 1993. He refused to give any reason for the ter- minations, stating that these jailers served at his pleasure and it was his pleasure to terminate them.
Upon dismissing Jackson and Penland, Sheriff Long issued a press release as follows:
As a result of an internal investigation by the Buncombe County Sheriff's Department, two detention officers have been dismissed from employment at the Buncombe County Detention Center. The investigation was ordered by Sheriff Charles H. Long after allegations were made of an alleged assault on an inmate in the custody of the Buncombe County Jail. Sheriff Long has requested that the State Bureau of Inves- tigation conduct an independent investigation into any pos- sibl[e] criminal violation arising from this incident. Further information regarding this matter will not be released at this time, pending investigation. Long also made some public statements about the matter during the next several days. He told The Asheville Citizen-Times that the jailers were fired for violation of an unspecified departmental policy. The article also attributed to Long the following statements:
I did what was best for the department . . . . Any conduct over there (jail) will not be tolerated if it will put mе or the county in peril. Television station WLOS attributed the following to Sheriff Long:
Any time we have an assault, or anything that might be of an unlawful nature it's a matter of concern . . . we have a high liability in the detention center and we have a lot of worry . . . we don't like for these things to happen.
WLOS reported Sheriff Long to have said that the jailers could reap- ply for their jobs if they were cleared of any wrongdoing. News reports contained information from other sources, including the plaintiffs themselves, revealing their names and the fact that the nature of the assault was sexual. Jackson himself apparently informed reporters that he had failed a polygraph test.
Almost two weeks after being fired, Penland sent a letter to Sheriff Long requesting a "civilian board hearing." In her letter, postmarked August 18, 1993, Penland alleged that her August 5 termination was motivated by personal and not "occupational" reasons. Counsel for Sheriff Long informed Penland that she was not entitled to any appeal because she had missed the five-day deadline for disciplinary appeals prescribed by departmental Policies and Procedures. Moreover, coun- sel advised Penland that there was no provision for appeal of a Sher- iff's decision to terminate employment. He informed Penland, nevertheless, that her dismissal would be automatically reviewed by the "Sheriff's Review Board" at its next regular meeting. Jackson never requested a hearing of any kind because, as he explained, Pen- land had advised him of the letter she had received in response to her request for a hearing. In May 1994, Jackson was indicted for second degree rape and sex- ual activity by a custodian. In the course of pursuing his criminal defense, Jackson obtained numerous psychiatric records of inmate Brock, revealing a history of mental illness. The records disclosed that Brock had previously made unsubstantiated accusations of sexual abuse against a variety of relatives, guardians, and acquaintances, although her father did plead no contest to charges of sexual abuse. After revelation of these documents, state prosecutors dismissed all criminal charges against Jackson.
Jackson and Penland each filed actions against Sheriff Long, indi- vidually and in his official capacity, under 42 U.S.C. § 1983 and *6 under state law. They alleged that in firing them, Sheriff Long had deprived them of their property interest in their employment and their liberty interest in their reputations without due process of law in vio- lation of the Fourteenth Amendment and of a parallel state constitu- tional provision. They also alleged under state law that Sheriff Long had defamed them in making his comments to the press. The com- plaints did not separately allege constitutional tort claims against Sheriff Long in his official capacity and did not allege that any regu- lation, policy, or practice of the Sheriff's Office formed a basis for the conduct they alleged was illegal.
Sheriff Long filed a motion for summary judgment, contending (1) that the plaintiffs did not have a property interest in their еmployment, (2) that the plaintiffs were not deprived of any liberty interest since all public statements were true and neither plaintiff had ever requested a name-clearing hearing, (3) that the plaintiffs failed as a matter of law to state a claim against him in his official capacity, (4) that in his official capacity he was entitled to Eleventh Amendment immunity, and (5) that in his individual capacity he was entitled to qualified immunity. 1
In denying Long's motion in all respects, the district court denied Long's claims of immunity. It concluded that 1973 North Carolina Session Law 297 granted Jackson and Penland a property interest in continued employment; that Shеriff Long's statements to the press "clearly suggest[ ] that the Plaintiffs were involved in an assault on an inmate" and therefore they "were falsely stigmatizing"; that the court had "insufficient information" to determine the Eleventh Amendment immunity issue or whether the complaint alleged any custom or policy sufficient to state a claim against Long in his official capacity; and that the constitutional rights that Long allegedly vio- lated were clearly established, but that factual issues existed "as to the Defendant's actual conduct, and as to the reasonableness of this con- duct." The court's opinion did not identify those factual issuеs. _________________________________________________________________ 1 Sheriff Long also moved for summary judgment on the state law claims which are not before us.
II
As a threshold matter, we must address Jackson's and Penland's
contention that we are without jurisdiction to decide these interlocu-
tory appeals. Although interlocutory rulings on qualified immunity
are ordinarily immediately appealable as collateral orders, see
Mitchell v. Forsyth,
The Johnson principle is limited to the circumstance where the dis-
pute on appeal is whether a factual dispute was created. If, however,
resolution of the factual dispute is immaterial to whether immunity
should be afforded, the underlying legal question about whether
immunity is to be afforded remains and may be appealed under
Mitchell as a collateral order. See
In the case before us, the district court was troubled by whether
Jackson and Penland actually participated in the conduct for which
the announced investigation placed them under suspicion. It con-
cluded that factual questions existed about whether the assault
occurred and whether, when charges were dropped, the plaintiffs were
stigmatized. While these may be disputed factual questions, they are
not material to the abstract question of Sheriff Long's immunity,
which depends on whether Sheriff Long violated clearly established
constitutional rights and whether he reasonably should have so
known. The facts which are relevant for determining whether Sheriff
Long has immunity must be taken from the viewpoint of Sheriff Long
at the time he terminated the jailers and not of an independent fact-
finder looking later in hindsight at whether the assault actually
occurred or whether Sheriff Long proved to be right in his decisions.
No factual question was raised about whether Sheriff Long reason-
ably believed that sufficient facts existed to initiate an invеstigation
or that he could, as a matter of state law, dismiss Jackson and Penland
as at-will employees.
Since the facts relevant to the nature of the complaint presented to
Sheriff Long and his response are not in dispute, we are left with the
legal questions of whether Sheriff Long's response violated clearly
established constitutional rights and, if so, whether Sheriff Long rea-
sonably should have known that it did. This posture of undisputed
facts about Sheriff Long's belief is precisely that which enables us to
resolve immunity, as we should, before trial "at the earliest possible
stage of a litigation." See Anderson v. Creighton,
While Sheriff Long's challenge to the district court's interlocutory
ruling denying him Eleventh Amendment immunity on the alleged
*9
claim that he is liable in his official capacity would also be appealable
at this time, see Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc.,
On his appeal, Sheriff Long contends that he is entitled to qualified
immunity for the § 1983 claims that seek damаges from him in his
individual capacity. This contention raises the legal questions of
whether Sheriff Long violated any clearly established constitutional
rights of plaintiffs in responding to the inmate's complaint against
them and, if the law clearly established those rights, whether a reason-
able official in Sheriff Long's position would have known of those
rights. Because these are questions of law, we review them de novo.
See Pritchett v. Alford,
A
In this case, the dismissed jailers contend that in firing them with-
out a hearing, Sheriff Long deprived them of a constitutionally pro-
*10
tected property right in their public employment as jailers. While
Sheriff Long does not contend that he in fact provided the jailers a
hearing, he claims that the jailers were at-will employees who served
at his pleasure and therefore cannot claim a prоperty interest in their
employment. Resolution of that dispute is determined by reference to
state law. See Bishop v. Wood,
Under North Carolina law, employment is generally presumed to
be "at-will" in the absence of a contract establishing a definite
employment duration or a statute or ordinance restricting an employ-
ee's discharge. See Pittman v. Wilson County,
The 1973 Session Law, which has never been codified, 2 establishes _________________________________________________________________ 2 The relevant portions of 1973 Session Law 297 provide:
Section 3. Duties of Personnel Advisory Board. The duties of the Personnel Board shall bе as follows: (1) to represent the public interest in the improvement of personnel administration; (2) to advise the Sheriff of Buncombe County concerning personnel administration, including minimum standards of *11 a three-member Personnel Advisory Board for the Sheriff's Depart- ment of Buncombe County, which is authorized to advise the Sheriff on various personnel matters and "to hear appeals, receive evidence, determine facts and make recommendations to the Sheriff in case of employee appeals of suspension, demotion and dismissal." 1973 N.C. Sess. 297, § 3(5) (emphasis added). Under§ 4 entitled "General Prin- ciplеs," the law states that "[a]ll appointments and promotions shall be made solely on the basis of merit and fitness," id. at § 4(1), and that "any employee who contends that he was demoted, suspended or dismissed because of bias, political affiliation, or for reasons not related to merit, fitness or availability of positions, shall have the right to appeal to the Personnel Advisory Board," id. at § 4(3), but that ten- _________________________________________________________________ employment established by the Criminal Justice and Train-
ing and Standards Council, and the methods used to publish vacancies; (3) to make any investigation which it may consider desir- able concerning the administration of personnel in the Department; (4) to advise the Sheriff on such personnel rules as he shall establish; and (5) to hear appeals, receive evidence, determine facts and make recommendations to the Sheriff in case of employee appeals of suspension, demotion and dismissal. Section 4. General Principles.
(1) All appointments and promotions shall be made solely on the basis of merit and fitness and all residents of Bun- combe County shall be given equal opportunity for employ- ment without regard to race, religion, color, creed and national origin.
(2) Tenure of employees сovered by this act shall be sub- ject to good behavior, satisfactory work performance, neces- sity for performance of work, and the availability of funds. (3) Any employee who contends that he was demoted, sus- pended or dismissed because of bias, political affiliation, or for reasons not related to merit, fitness or availability of positions, shall have the right to appeal to the Personnel Advisory Board. *12 ure of employees would remain "subject to good behavior, satisfac- tory work performance, necessity for performance of work, and the availability of funds," id. at § 4(2).
Pеnland and Jackson contend that these provisions of the Session Law should be interpreted to provide that they could be dismissed only for cause. We do not believe, however, that the plain meaning of the law's language supports that contention. Under a straightfor- ward reading of the law, the Personnel Advisory Board in Buncombe County is given the duty to investigate personnel matters in order "to advise" the Sheriff on personnel policies and rules, and to hear appeals from employee suspensions, demotions, and dismissals in order to "make recommendations" to the Sheriff in respect to thosе appeals. In short, as its name suggests, the Board's function is advi- sory.
While the law also includes "general principles," these relate to
how the Board must carry out its duties. We can find no provision that
confers on Sheriff's Department employees a substantive property
right in their employment. Indeed, while the law appears to give some
procedural rights (rights that the employees in this case did not elect
to use), the Board is given no right in the end to direct the Sheriff to
do anything. And procedural rights in themselves do not create sub-
stantive property rights protected by the Fourteenth Amendment. See
Clevеland Bd. of Educ. v. Loudermill,
B
Jackson and Penland also contend that Sheriff Long deprived them of their liberty interest in their reputations without due process of law in violation of the Fourteenth Amendment. This claim is based on Sheriff Long's public statements about his actions in terminating the jailers and referring their conduct to the SBI for investigation. Jack- son and Penland argue that even though Sheriff Long's statements may have been literally true, the statements suggest to the public that the two jailers were criminally responsible. Jackson and Penland also contend that the Constitution requires that they be provided with a due process "name-clearing" hearing. Sheriff Long maintains that his statements about Jackson and Pen- land were entirely true. He observes that both Jackson and Penland were subject to a departmental investigation for violations of depart- mental policy, both had been dismissed for violation of that policy, both had been referred to the SBI for further investigation into possi- ble violations of criminal law, and both could reapply for their jobs if cleared. He maintains that his public announcements and comments stated no more. He also noted that neither Jackson nor Penland demanded any "name-cleаring" hearing.
It is well established that even if statements by public officials may
have been defamatory under state law, that tort alone does not consti-
tute a constitutional deprivation. See Siegert v. Gilley,
While there can be no doubt that the announcement of an investiga- tion places suspicion on those persons being investigated, that suspi- cion is inherent when undertaking any investigation. If Jackson and Penland suggest, however, that a constitutional deprivation of liberty results from an employer's public announcement of a criminal inves- tigation into his employees' job performances, they have advanced no law supporting that suggestion. To impute knowledge to Sheriff Long of a constitutional transgression, the right would have to be clearly defined at the time. C
The responsibility imposed on public officials to comply with con-
stitutional requirements is commensurate with the legal knowledge of
an objectively reasonable official in similar circumstances at the time
of the challenged conduct. It is not measured by the collective hind-
sight of skilled lawyers and learned judges. And even that focused
*15
hindsight cannot, in this case, justify the conclusion that Sheriff
Long's dismissal of Jackson and Penland and his announcement of a
criminal investigation violated clearly established constitutional
rights. See Zepp,
As to the § 1983 claims purportedly made against Sheriff Long in
his official capacity, Sheriff Long asserts that plaintiffs' complaints
fail to state a claim against him in his official capacity because they
do not allege that a custom or policy was the basis of a violation of
the еmployees' constitutional rights. Long also asserts that he would
be immune from any such claim under the Eleventh Amendment.
While the captions on the complaints in this case do indicate that
Sheriff Long was sued in both his individual and official capacities,
he correctly observes that the complaints' allegations relate only to
Long's individual conduct. The complaints fail to allege a violation
of a Sheriff's Department regulation, policy, or practice that autho-
rized any constitutionally proscribed action taken against Jackson and
Penland, and therefore the complaints fail tо impute liability to the
Sheriff in his official capacity. See Greensboro Professional Fire
Fighters Ass'n, Local 3157 v. City of Greensboro,
While we ordinarily would decide an immunity claim before reach-
ing the merits of the underlying claim, cf. DiMeglio v. Haines, 45
F.3d 790, 797 (4th Cir. 1995) (stating that court should assess, before
anything else, qualified immunity issuе), when the complaint alleges
no claim against which immunity would attach, we need not decide
the immunity issue. Rather, in a rare exercise of pendent appellate
*16
jurisdiction, see Taylor v. Waters,
V
In summary, we conclude that Sheriff Long is entitled to qualified immunity from the 42 U.S.C. § 1983 claims made against him in his individual capacity and that the complaint does not adequately allege a claim against him in his official capacity. Accordingly, we reverse the district court's rulings on these issues and remand this case to the district court with instructions to dismiss all federal claims asserted against Sheriff Long.
REVERSED AND REMANDED WITH INSTRUCTIONS