Case Information
*1 Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
I. Procedural History
Richard Powell (“Powell”) brought this action against his employer, the Pulaski County Sheriff’s Department (the “Sheriff’s Department”). Powell asserts that he was demoted in retaliation for filing previous lawsuits against Apрellants Randy Johnson and Charles Polk.
Appellants moved for summary judgment on the merits and, in their individual capacities, on the basis of qualified immunity. Initially, the trial court granted the Appellants’ motion for summary judgment on the merits and dismissed the case. Powell filed a motion to alter or amend the judgment. After a hearing, the trial court found triable issues of material fact that precluded summary judgment. The trial сourt also denied the Appellants qualified immunity.
On appeal, the Appellants argue they are entitled to qualified immunity because the decision to demote Powell was reasonable in light of clearly established law. Appellants also seek summary judgment on the merits.
II. Factual Background
Powell has filed two prior lawsuits against his employer. In 1988, he brought a § 1983 action against Johnson’s predecessor, Cаrroll Gravett. First, Powell claimed that the Sheriff Department’s promotion policy failed to award promotions based on merit and therefore deprived him of a property interest withоut due process of law. Second, Powell claimed that his employer denied him promotion because he criticized Gravett’s promotion policies, in violation of the First Amendment. Pоwell had spoken out against the promotion policy, alleging it would adversely affect department operations and cause qualified officers to leave the departmеnt, which would decrease efficiency and increase training costs. The district court granted the defendants summary judgment on the due process claim but denied summary judgment on the First Amendment claim. This cоurt affirmed, finding that Powell’s *3 speech was on a matter of public concern. The parties eventually reached a settlement agreement that required Gravett to publish a written promоtion policy.
In 2000, Powell sued Johnson, Polk, and other members of the Sheriff’s Department after being passed over for a promotion to lieutenant. In that suit, Powell claimed he had been denied promotion because he was not a political ally of Johnson or because Powell was interested in running for sheriff and therefore seen as a political threat by Johnson. In Februаry 2001, Powell voluntarily dismissed his case.
On June 21, 2001, Captain Carol Kimble and Lieutenant Sherry Rainey visited a precinct office to which Rainey was to be assigned. During their visit, Kimble discovered an envelopе on the shift sergeant’s desk that contained three copies (of the five copies in existence) of a traffic citation issued in May 2000. The envelope was addressed to “Sean O’Nale,” a fellow Sheriff’s Department employee, and the handwriting on the envelope appeared to be Powell’s. Kimble reported her discovery to the Chief Deputy, Charles Polk, who оrdered an investigation into the incident.
During the investigation, Powell admitted that O’Nale had called him and asked him to collect the citation and send it to O’Nale. O’Nale did not specify how many copies to collect nor the purpose of the request. Powell stated that he put the tickets in an envelope, addressed it to O’Nale, and placed it in the outgoing box. Powell admittеd this was the first time he had received a request to collect and send a traffic citation. The ticket was never adjudicated because, by the time these events came to light, the time limit for adjudication had passed.
Based on the investigation and an August 1, 2001 administrative hearing, Polk determined that Powell should be demoted from the rank of sergeant to the rank of deputy because he circumvented the judicial system. Powell was demoted and is currently employed at the Sheriff’s Department at the rank of deputy.
III. Discussion
A. Appellate Jurisdiction and Standard of Review
While a denial of summary judgment is not generally reviewable on immediаte
appeal, we may review a denial of summary judgment based on qualified immunity
on immediate appeal, “to the extent that it turns on an issue of law.” Mitchell v.
Forsyth,
B. Qualified Immunity Analysis
When reviewing a denial of qualified immunity, we go through a two-step
inquiry. “This inquiry must be undertaken in the ‘proper sequence.’” Littrell v.
Franklin,
As stated above, our review at this stage concerns only issues of law. We may
decide only “whether the legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions.” Mitchell,
Powell alleges that Johnson and Polk demoted him for participating in a
protected activity. Should this allеgation prove to be true, the defendants’ conduct
violated Powell’s constitutional rights. Saucier,
Powell’s criticism of the Sheriff Department’s policies was a protected activity.
Powell complained that the promotion policies were not merit-based and that they
would сompromise the efficiency and quality of the operation of the Sheriff’s
Department. Powell also complained of political favoritism. He alleged that the
Sheriff failed to promote him because he was not a political ally. Both of these
complaints relate to protected speech and neither were frivolous lawsuits. Shands v.
City of Kennett,
2. Carol Kimble
As pertains to Kimble, Powell failed to allege sufficient facts to survive summary judgment. In his deposition, Powell admitted that Kimble played no рart in his demotion because her involvement was limited to finding the envelope containing the traffic citation. When asked how Kimble violated his rights, Powell stated that Kimble visited his home at 8:00 a.m. one morning while Powell was on sick leave, about a week after his demotion, and asked for certain documents. The facts Powell alleges do not support a finding that Kimble violated a clearly established law by visiting Powell’s home on that particular morning. To the extent that the district court included Kimble in its order denying qualified immunity, the district court erred.
3. Sherry Rainey
Powell also failed to allege sufficient facts against Rainey to survive summary judgment. In his deposition, Powell admitted that Rainey played no part in his demotion. She was present when Kimble discovered the envelope containing the traffic citation, but no allegation of wrongdoing on Rainey’s part is included in Powell’s contentions. In fact, when asked how Rainey violated his rights, Powell answered, “She didn’t do anything.” Obviously, the facts Powell alleges рertaining to Rainey do not support a finding that Rainey violated a clearly established law. Rainey is therefore entitled to qualified immunity, because doing nothing wrong is *7 not a violation of clearly established law. To the extent that the district court included Rainey in its order denying qualified immunity, the district court erred.
IV. Conclusion
We affirm the district court’s judgment that Appellants Johnson and Polk are not entitled to summary judgment based on qualified immunity. We reverse the district court’s judgment as it pertains to Appellants Kimble and Rainey and find that Kimble and Rainey are entitled to qualified immunity and summary judgment.
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