United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, JUDGE.
the Court is Defendants Donnie Howard, Ryan Alexander, and
Joseph Creswell's, in their individual capacities, Motion
for Summary Judgment on the basis of qualified immunity. Dkt.
No. 46. This Motion has been fully briefed and is ripe for
review. For the following reasons, Defendants' Motion is
GRANTED in part and DENIED in part.
January 22, 2019, the Court issued an Order denying
Defendants' Motion for Summary Judgment,  dkt. no. 45, on
Plaintiff's claims of racial discrimination under 42
U.S.C. § 2OOOe et seq. and 42 U.S.C.
§§ 1981 and 1983, intimate association under the
First Amendment, and conspiracy under 42 U.S.C. § 1985
against the Defendants. Specifically, the Court found that
genuine disputes of material fact made summary judgment on
Plaintiff's claims improper. In that Order, the Court
noted that Defendants had raised, for the first time, in
their supplemental brief the defense of qualified immunity.
Dkt. No. 45 at 54 n.l4. The Court declined to address the
qualified immunity defense because Defendants had not met
their burden to show a discretionary function and Plaintiff
had no opportunity to respond to the qualified immunity
argument. Id. However, the Court gave leave to the
Defendant to move for summary judgment based on qualified
immunity in a separate motion to be filed within ten days of
the Order. Id. The Court indicated that the
Plaintiff would have ten days to respond. Id.
February 1, 2019, Defendants Howard, Alexander, and Creswell
filed a Motion for Summary Judgment arguing that they are
entitled to qualified immunity in their individual capacities
from Plaintiff's discrimination claims under § 1983
for violation of the Equal Protection Clause and Plaintiff s
First Amendment intimate association claim. Dkt. No. 46.
Plaintiff responded to Defendants' Motion disputing the
qualified immunity defense. Dkt. Nos. 49, 51.
Court described the factual background and evidence in this
case in lengthy detail in its prior Order, it will not
reiterate all of those facts here. Rather, all of the facts
from the prior summary judgment Order, dkt. no. 45 at 1-18,
are incorporated herein by reference. However, Plaintiff has
submitted new evidence into the record since the Court's
Plaintiff submitted copies of the Darien Personnel Policies
and Procedure manual (``City Manual") and the Darien
Police Department's ``Standard Operating Procedure"
(``SOP"), which set forth, among other things, the city
and police department's policies for discipline. Dkt.
Nos. 48-2, 48-3. . The relevant sections of those documents
are discussed in the analysis below. Plaintiff also submitted
the deposition testimony of Dr. Kidder, the counselor who
Plaintiff saw upon Howard's recommendation during
Plaintiff's two-week suspension. Dkt. No. 48-1. This
testimony provides support for Plaintiff s claims that he was
experiencing negative treatment at work because of his
relationship with Miller. The relevant statements from the
testimony are included below. Finally, Plaintiff also
submitted a second affidavit in which he explains more
details about his relationship with Miller, and specifically,
he explains when Miller divorced her ex-husband. Dkt. No.
48-5. These facts are also discussed further below.
judgment is required where "the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A fact is "material" if it
"might affect the outcome of the suit under the
governing law." FindWhat Inv'r Grp. v.
FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A dispute is "genuine" if the
"evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. In making
this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party's favor. See
Johnson v. Booker T. Washington Broad. Serv., Inc., 234
F.3d 501, 507 (11th Cir. 2000).
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant
must show the court that there is an absence of evidence to
support the nonmoving party's case. See id. at
325. If the moving party discharges this burden, the burden
shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. See Anderson, 477 U.S. at 257.
nonmovant may satisfy this burden in one of two ways. First,
the nonmovant ``may show that the record in fact contains
supporting evidence, sufficient to withstand a directed
verdict motion, which was `overlooked or ignored' by the
moving party, who has thus failed to meet the initial burden
of showing an absence of evidence." Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)
(quoting Celotex Corp., 477 U.S. at 332 (Brennan,
J., dissenting)). Second, the nonmovant ``may come forward
with additional evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency." Id. at 1117. Where the nonmovant
attempts to carry this burden instead with nothing more
``than a repetition of his conclusional allegations, summary
judgment for the [movant is] not only proper but
required." Morris v. Ross, 663 F.2d 1032,
1033-34 (11th Cir. 1981) (citing Fed.R.Civ.P. 56(e)).
assert that they are entitled to qualified immunity from
Plaintiff's claims under § 1983 for discrimination
in violation of the Equal Protection Clause and interfering
with Plaintiff's right to intimate association under the
First Amendment. Plaintiff responds that Defendant Alexander
is not entitled to qualified immunity because he was not
performing a discretionary function within the scope of his
authority, and even if he was, all three Defendants violated
Plaintiff's clearly established constitutional rights.
immunity grants "complete protection for government
officials sued in their individual capacities if their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Vinyard v. Wilson, 311 F.3d 1340, 1346
(11th Cir. 2002). The Eleventh Circuit has summarized the
qualified immunity framework as follows:
To establish the defense of qualified immunity, the burden is
first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within
the scope of his discretionary authority. If, and only
if, the defendant does that will the burden shift to the
plaintiff to establish that the defendant violated clearly
Estate of Cummings v. Davenport, 906 F.3d 934, 940
(11th Cir. 2018), petition for cert, filed., No.
18-1191 (U.S. Mar. 3, 2019). The Plaintiff's burden is
divided into a two-step inquiry. ``First, the court must ask
whether the plaintiff's allegations, if true, establish
the violation of a constitutional or statutory right. If a
constitutional or statutory right would have been violated
under the plaintiff's version of the facts, the next step
is to ask whether the right was clearly established."
Bogle v. McClure, 332 F.3d 1347, 1355 (11th Cir.
2003) (citations omitted). The Court has discretion to
analyze these two-steps in either order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
first argues that Alexander is not entitled to qualified
immunity because the adverse actions that he took against
Plaintiff were not within the scope of his discretionary
authority. Defendants argue that Alexander was acting within
the scope of his discretionary authority to administer
establish that the challenged actions were within the scope
of his discretionary authority, a defendant must show that
those actions were (1) undertaken pursuant to the performance
of his duties, and (2) within the scope of his
authority." Estate of Cummings, 906 F.3d at 940
(citation omitted). ``In other words, `[w]e ask whether the
government employee was (a) performing a legitimate
job-related function (that is, pursuing a job-related goal),
(b) through means that were within his power to
utilize.'" Id. (citation omitted) . ``The
inquiry is not whether it was within the defendant's
authority to commit the allegedly illegal act," rather,
``a court must ask whether the act complained of, if done for
a proper purpose, would be within, or reasonably related to,
the outer perimeter of an official's discretionary
duties." Harbert Int'l, Inc. v. James, 157
F.3d 1271, 1282 (11th Cir. 1998). `` [A] government official
can prove he acted within the scope of his discretionary
authority by showing `objective circumstances which would
compel the conclusion that his actions were undertaken
pursuant to the performance of his duties and within the
scope of his authority."' Estate of
Cummings, 906 F.3d at 940 (citation omitted). However,
`` [a] bald assertion by the defendant that the complained-of
actions were . . . within the scope of his discretionary
authority is insufficient." Id. (quotation and
citation omitted). In conducting this analysis, the Court
must not characterize the issue of an officer's
discretion too narrowly or at too high of a level of
generality; instead, the Court should "consider a
government official's actions at the minimum level of
generality necessary to remove the constitutional
taint." Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1266 (11th Cir. 2004) (explaining, for
example, that for a proper characterization for an alleged
use of excessive force claim, ``we do not ask whether police
have the right to use excessive force" or
"immediately jump to a high level of generality and ask
whether police are responsible for enforcing the law or
promoting the public interest," but "instead ask
whether they have the power to attempt to effectuate
the proper question is whether Alexander's duties and
scope of authority included administering discipline to
officers under his command for violations of Chief
Howard's orders, his own orders, or other police
department policies. In short, the answer to this question is
yes. In this case, Alexander was at all times under Chief
Howard's command and also Plaintiff's immediate
supervisor. Both sides agree that the vehicle order, whatever
its actual terms, came from Howard through Alexander to
Plaintiff and Miller. Thus, Alexander, as Robinson's
immediate supervisor, was entrusted with enforcing that order
along with any other directions from Howard concerning
Alexander's subordinates-including department vehicle
policies set by Howard. So whether Plaintiff's reprimand
and three-day suspension in February 2016 was for taking a
work vehicle to Atlanta or for riding in the vehicle with
Miller against Howard and Alexander's order, Alexander
was operating within his capacity as Plaintiff's
supervisor and under the authority given by Howard to
administer discipline to Plaintiff.
the two-week suspension in May 2016, Alexander was acting in
his capacity as Plaintiff s supervisor and head of narcotic
investigations when he told Plaintiff and Miller to not work
with the sheriff's office, and he acted pursuant to his
authority as Plaintiff s supervisor when he suspended him for
allegedly participating in an investigation with the sheriffs
department. Therefore, Alexander was performing his duties
and within his authority as Plaintiff s supervising officer
when he administered discipline by reprimanding Plaintiff and
suspending him for three days in February 2016 and suspending
for two-weeks in May 2016. In other words, these suspensions,
``if done for a proper purpose, would be within, or
reasonably related to, the outer perimeter of"
Alexander's "discretionary duties'7 as the head
of the narcotics investigation unit and Plaintiff's
immediate supervisor. See Harbert Int'l, Inc. v.
James, 157 F.3d 1271, 1282 (11th Cir. 1998) .
points to various sections of the City Manual and the Darien
Police Department's SOP to argue that Alexander's
actions fell outside of his discretionary function. However,
the Court cannot say that based on the provisions of these
documents highlighted by Plaintiff that Alexander's
actions fell outside of his authority as Plaintiff's
direct supervisor. In general, just because Alexander
allegedly may not have followed proper procedure under the
City Manual or SOP in suspending Plaintiff, it does not
necessarily mean that he lacked the authority under his job
position to do so. For example, Plaintiff argues that
Alexander was required to give Plaintiff three-days notice
before suspending him, but just because Alexander may have
violated this provision does not mean he could not otherwise
Section IV-A-3 of the SOP gives ``[a]n immediate or higher
level supervisor . . . authority to immediately relieve an
employee from duty if the retention of such employee will
cause or continue a disruption of the workforce" and
then give a recommendation for the appropriate disciplinary
action to the department head within one day. Dkt. No. 33-23
at 7. Moreover, the SOP does hot require notice for
conditions such as "gross insubordination or
misconduct" or ``any violation of department rules or
regulations that would submit the violating employee to
immediate dismissal." Id. at 7-8. Finally, the
SOP states that ``a supervisor may suspend an employee up to
ten days without prior approval of the Chief of Police"
with any suspension longer than ten days requiring approval
from the Chief of Police. Id. at 8. So here
Alexander either had authority to give these suspensions on
his own, or he had that authority through Howard who approved
of both suspensions.
only challenges Alexander's discretionary authority, but
Defendants also independently show that Howard as the Chief
of the Darien Police Department and Creswell as
Plaintiff's immediate supervisor in the summer of 2016
also acted within the scope of their discretionary authority
in their actions involving Plaintiff. Thus, Defendants have
met their burden, and the burden shifts to Plaintiff to show
a violation of clearly established law.
Court will address qualified immunity with respect to
Plaintiff's § 1983 claims for discrimination ...