Kipps v. Caillier ( 1999 )

REVISED - December 30, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30978
REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS,
Plaintiffs-Appellants,
versus
JAMES CAILLIER, RAY AUTHEMENT,
NELSON J. SCHEXNAYDER, JR., AND NELSON STOKLEY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
December 6, 1999
Before WIENER, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Plaintiffs appeal the district court's orders denying their
motion in limine, dismissing the case for failure to state a
claim and granting defendants' motion for summary judgment. We
VACATE in part and AFFIRM in part.
FACTUAL HISTORY AND PROCEEDINGS BELOW
Rexford Kipps (“Kipps”) was an assistant football coach at
the University of Southwestern Louisiana (“USL”) for
approximately eleven years. Kipps's son, Kyle Kipps (“Kyle”),
was a talented football player in southern Louisiana. Kyle was
actively recruited by several universities in 1996 and 1997.
In March of 1996, Nelson Stokley (“Stokley”), USL's head
football coach, told Kipps that if Kyle did not attend USL, then
he was to attend a college or university outside of Louisiana.
Stokley warned Kipps that under no circumstances was Kyle to
attend a Louisiana university other than USL.
On February 2, 1997, Kyle notified Stokley that he had
orally committed to attend Louisiana State University (“LSU”) on
a football scholarship and that this commitment would soon be
reduced to writing. The next day, Stokley advised Kipps that he
was to forbid Kyle to memorialize the oral commitment to play
football for LSU. Kipps responded that he would not (indeed,
could not) command his son to refuse to reduce the verbal
commitment to writing.
Based on Kyle's decision to attend LSU, Stokley terminated
Kipps's employment with USL. In a February 20, 1997, letter,
Nelson Schexnayder, Jr. (“Schexnayder”), USL Director of
Athletics, advised Kipps, based on Stokley's recommendation, that
Kipps's employment with USL would be terminated effective June
30, 1997. Ray Authement (“Authement”), President of USL, was
provided with a copy of this letter and subsequently approved
Kipps's termination. Additionally, James Caillier (“Caillier”),
President of the Board of Trustees for Louisiana State Colleges
and Universities approved Kipps's termination.
On July 22, 1997, plaintiffs instituted an action against
Stokley, Schexnayder, Authement and Caillier, in their individual
2
capacities, asserting, inter alia, constitutional claims and
Louisiana state law claims. On August 28, 1997, defendants
Stokley, Schexnayder and Authement filed a motion to dismiss
pursuant to FED. R. CIV. P. 12(b)(6). This motion was amended
shortly thereafter to add Caillier.
On October 31, 1997, the district court denied defendants'
motion to dismiss the claims asserted under 42 U.S.C. § 1983
(1994) and granted defendants' motion as to the pendent state law
claims under LA. CIV. CODE ANN. art. 2315.6 (West 1999) and LA. REV.
STAT. ANN. § 23:631 (West 1999).
Stokley, Schexnayder and Authement next filed a motion for
summary judgment pursuant to FED. R. CIV. P. 56, asserting, inter
alia, that the at-will employment status of Kipps precluded any
wrongful termination action; that the defendants were entitled to
qualified immunity; and that Kipps's termination was justified
due to the effect that Kyle's choice of colleges would have on
USL's ability to recruit athletes and on alumni relations. The
next day, these defendants also filed a motion for sanctions
against plaintiffs' counsel. On March 27, 1998, Caillier filed a
summary judgment motion asserting, inter alia, that he did not
participate in Kipps's termination and that Kipps's at-will
employment status precluded a wrongful termination claim.
Plaintiffs moved to oppose the summary judgment motions and the
motion for sanctions. In addition, plaintiffs filed motions in
limine to exclude, inter alia, the following: (1) the qualified
immunity defense and (2) the justification defense.
3
The district court denied plaintiffs' motions in limine and
granted Stokley, Schexnayder and Authement's motion for summary
judgment on qualified immunity grounds. The district court
granted appellee Caillier's motion for summary judgment on
similar grounds and granted defendants' motion for sanctions
against plaintiffs' counsel.
Plaintiffs invoke the jurisdiction of this court pursuant to
28 U.S.C. § 1291 (1994) and present the following issues for
interlocutory appeal:
1. Did the district court commit reversible error in
dismissing plaintiffs' claims based on the theory
that “Qualified Immunity” exempted the defendants
from liability?
2. Did the district court commit reversible error in
refusing to grant plaintiffs' Motion to Exclude
any Evidence as to the Defense of Justification?
3. Did the district court commit reversible error
when it sanctioned plaintiffs' counsel?
4. Did the district court commit reversible error in
dismissing plaintiffs' pendant state law claims
under LA. CIV. CODE ANN. art. 2315.6 (West 1999)?
SECTION 1983 CLAIM
The district court granted defendants' summary judgment and
dismissed plaintiffs' constitutional claims based on the doctrine
of “Qualified Immunity.” We review a grant of a summary judgment
de novo. See Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th
Cir. 1999). Summary judgment shall be entered in favor of the
moving party if the record, taken as a whole, "show[s] that there
is no genuine issue as to any material fact and that the moving
4
party is entitled to a judgment as a matter of law." FED. R. CIV.
P. 56(c). A factual dispute is "genuine" where a reasonable jury
could return a verdict for the nonmoving party. See Crowe v.
Henry, 115 F.3d 294, 296 (5th Cir. 1997). If the record, taken
as a whole, could not lead a rational trier of fact to find for
the non-moving party, then there is no genuine issue for trial.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 597 (1986); Scales v. Slates, 181 F.3d 703, 708 (5th Cir.
1999).
Qualified Immunity
Public officials acting within the scope of their official
duties are shielded from civil liability by the qualified
immunity doctrine. See, e.g., Harlow v. Fitzgerald, 457 U.S.
800, 815-19 (1982); Morris v. Dearborne, 181 F.3d 657, 665 (5th
Cir. 1999). Government officials are entitled to qualified
immunity “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow, 457 U.S. at 818.1
In order to establish that the defendants are not entitled
to qualified immunity, plaintiffs must satisfy a three-part test.
See, e.g., Morris, 181 F.3d at 665. First, “[a] court evaluating
1
With the announcement of this wholly objective standard,
the Supreme Court rejected the subjective, good faith element of
the qualified immunity defense adopted in Wood v. Strickland, 420
U.S. 308, 321 (1975). Cf. Schultea v. Wood, 47 F.3d 1427, 1431
(5th Cir. 1995) (“The Court's deletion of the subjective element
of good faith rested on the pragmatic judgment that it
'frequently has proved incompatible with our admonition . . .
that insubstantial claims should not proceed to trial.'”)
(quoting Harlow, 457 U.S. at 815-16)).
5
a claim of qualified immunity must first determine whether the
plaintiff has alleged the deprivation of a constitutional right
at all.” Wilson v. Layne, --- U.S. ---, ---, 119 S. Ct. 1692,
1697 (1999); see also Morris, 181 F.3d at 665. Second, the court
must “determine whether that right was clearly established at the
time of the alleged violation.” Wilson, --- U.S. at ---, 119 S.
Ct. at 1697. Finally, the court “must determine whether the
record shows that the violation occurred, or at least gives rise
to a genuine issue of material fact as to whether the defendant
actually engaged in the conduct that violated the clearly-
established right.” Morris, 181 F.3d at 666 (quoting Kerr v.
Lyford, 171 F.3d 330, 339 (5th Cir. 1999)).2 If it is determined
that the official's conduct was unconstitutional, then the court
must decide whether the conduct was nonetheless “objectively
reasonable.” See Eugene v. Alief Indep. School Dist., 65 F.3d
1299, 1305 (5th Cir. 1995).
Assuming arguendo that defendants violated Kipps's clearly
established constitutional liberty interest3 in familial
association,4 the resolution of this issue turns on whether the
defendants' actions were “objectively reasonable.” Because we
2
This prong is not at issue since defendants do not
challenge the core facts as asserted by plaintiffs.
3
In addition to the issues we address in this opinion,
plaintiffs claim that the district court committed an additional
error when it converted plaintiffs' claimed liberty interest into
a property interest. Because we assume the existence of such
interest, it is not necessary for us to reach this question.
4
Whether a constitutional liberty interest is implicated
by the facts of this case is highly questionable.
6
find that defendants' actions were objectively reasonable, we
affirm the district court's dismissal of Kipps's 1983 claim on
the basis of qualified immunity.
Even if defendants violated Kipps's clearly established
constitutional right, they are still entitled to qualified
immunity if their actions were objectively reasonable.
“Objective reasonableness is a matter of law for the courts to
decide, not a matter for the jury.” Williams v. Bramer, 180 F.3d
699, 703 (5th Cir. 1999); see also Wilson, --- U.S. at ---, 119
S. Ct. at 1699 (“[W]hether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful
official action generally turns on the 'objective legal
reasonableness' of the action.”) (quoting Anderson v. Creighton,
483 U.S. 635, 639 (1987)).
The record indicates that Kipps was fired because his son
chose to play football for a Louisiana school other than USL.
Notwithstanding the defendants' subjective motivation and belief
as to the lawfulness of their conduct,5 we find the defendants'
5
Defendants appear to argue on brief that because Kipps
was an at-will employee, it was reasonable to fire him for any
reason whatsoever. Kipps's status as an at-will employee is
irrelevant to our analysis of this issue. It is well established
in this Circuit that public authorities may not discharge an at-
will employee for exercise of his constitutionally protected
rights.
Although public school authorities may discharge an
employee unprotected by a reasonable expectation of
continued employment for any job-related reason or for
no reason at all, it is well established that they may
not do so for a reason which infringes “constitutionally
protected rights.”
7
motivation for terminating Kipps was objectively reasonable. See
Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990)
(holding that “even an officer who subjectively intends to act
unreasonably is entitled to immunity if his actions are
objectively reasonable”) (citing Malley v. Briggs, 475 U.S. 335,
341 (1986)). Defendants' motivation, according to the record in
this case, was to mitigate the damage that Kyle's attendance at
LSU as opposed to USL would have on alumni relations and
recruiting efforts.6
The summary judgment record of this appeal contains no facts
Brantley, 718 F.2d at 1358 (quoting Perry v. Sindermann, 408 U.S.
593, 597 (1972)). Defendants' counsel conceded this point at
oral argument. Furthermore, the policy of the Board of Trustees
allowing for the firing of an at-will employee, as interpreted by
defendants, is also irrelevant to our analysis of this issue.
“Such a policy, of course, could not make reasonable a belief
that was contrary to a decided body of case law.” Wilson, ---
U.S. at ---, 119 S. Ct. at 1701. See also Babb, 33 F.3d at 478
n.8 (holding that city policy regarding arrest procedure is
irrelevant to qualified immunity analysis).
6
Similar considerations are part of the balancing test
inherent in defendants' alternative defense of justification.
Because we affirm the district court's dismissal of plaintiffs'
claims based on qualified immunity, we do not speak to its ruling
on justification except to comment on a key element of the
defense: the proffered expert opinion of Spike Dykes. Under this
Circuit's pre-Kumho Tire interpretation of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the testimony of Mr.
Dykes would have been inadmissible because it is speculative and
not amenable to scientific verification. See Moore v. Ashland
Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc). If
anyone is an expert in recruiting football talent and alumni
relations, Spike Dykes is such a person. The test of
admissibility in Rule 702 is a flexible one that must be tailored
to the facts of each case. See Kumho Tire v. Carmichael, ---
U.S. ---, ---, 119 S. Ct. 1167, 1175 (1999) (“Daubert makes clear
that the factors it mentions do not constitute a 'definitive
checklist or test.'”) (quoting Daubert, 509 U.S. at 593 (“Many
factors will bear on the inquiry, and we do not presume to set
out a definitive checklist.”)).
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upon which we could find that defendants' actions were
objectively unreasonable. The district court's ruling that all
defendants are entitled to qualified immunity is AFFIRMED.
SANCTIONS AGAINST PLAINTIFFS' COUNSEL
Plaintiffs assert that the district court erred in
sanctioning plaintiffs' counsel (“Simon”) for a letter Simon sent
to potential defendants in connection with this case. Although
the magistrate judge concluded that Simon's behavior did not
merit sanctions, she suggested that he write an amendatory letter
“to explain . . . any ambiguities regarding the intent and tone
of his original letter.” The district court granted the
defendants' motion for sanctions and required Simon to send the
amendatory letter. Simon sent the mandated letter, but
nonetheless appeals the district court's decision. Because we
hold that the district court abused its discretion, we VACATE its
ruling on this issue.
The imposition of sanctions by a district court is reviewed
for abuse of discretion. See Chaves v. M/V Media Star, 47 F.3d
153, 156 (5th Cir. 1995). “A court abuses its discretion when
its ruling is based on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Id. (citing
Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405 (1990)).
Although a district court has inherent power to issue
sanctions against attorneys for bad faith conduct in litigation,
see Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991), the
threshold for the imposition of such sanctions is high. See
9
Chaves, 47 F.3d at 156. “In order to impose sanctions against an
attorney under its inherent power, a court must make a specific
finding that the attorney acted in 'bad faith.'” Id.
The district court abused its discretion in imposing
sanctions on Simon. Not only did the district court fail to make
a specific finding as to the bad faith of Simon's actions, but
its sanctioning order was issued in the face of the magistrate's
finding that Simon's actions were not “a bad faith attempt to
disrupt or delay these proceedings.” Because a specific finding
as to the bad faith of Simon's actions was not made, and indeed,
one could not be made from this record, we VACATE the district
court's order imposing sanctions on Simon.
“BYSTANDER RECOVERY” CLAIM
Plaintiffs assert that the district court committed
reversible error in dismissing their pendent state law claim
under article 2315.6 of the Louisiana Civil Code for failure to
state a claim upon which relief can be granted.7 We disagree.
A Rule 12(b)(6) order of dismissal for failure to state a
claim on which relief can be granted is reviewed de novo, and
7
Appellee Caillier asserts that we lack appellate
jurisdiction over this claim because plaintiffs' appeal of this
ruling was untimely. See FED. R. APP. P. 4(a)(1)(A). We
disagree. Plaintiffs' notice of appeal was filed well within the
required thirty days of the district court's August 18, 1998
order. That notice of appeal covers the district court's August
18, 1998 rulings, the district court's August 28, 1998 rulings
and “all subsidiary rulings occurring during the pendency of this
action.” Because the district court's October 31, 1997, 12(b)(6)
ruling is not subject to Rule 54(b), it falls within the purview
of “subsidiary rulings occurring during the pendency of this
action.” Therefore, our jurisdiction is proper.
10
"will not be affirmed unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Anderson v. Pasadena Indep. Sch.
Dist., 184 F.3d 439, 443 (5th Cir. 1999) (quoting Blackburn v.
City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995)).
Article 2315.6 of the Louisiana Civil Code is a “bystander
recovery” statute that allows certain “persons who view an event
causing injury to another person, or who come upon the scene of
an even soon thereafter, [to] recover damages for mental anguish
or emotional distress that they suffer as a result of the other
person's injury.” LA. CIV. CODE ANN. art. 2315.6 (West 1999). We
are conscious of the fact that Louisiana's highest court is the
appropriate place to seek the proper interpretation of this
statute. See Sanchez v. Liggett & Myers, Inc., 187 F.3d 486, 492
(5th Cir. 1999) (“If the state through its highest court has
spoken clearly in interpreting its law, it is not within the
authority of this Court to reinterpret that law.”) (Parker, J.,
dissenting). The Louisiana Supreme Court recently “[spoke]
clearly in interpreting” this statute.
In Trahan v. McManus, 728 So. 2d 1273 (La. 1999), rev'g 689
So. 2d 696 (La. Ct. App. 1997), the parents of a 36-year-old
patient, Terry Trahan, who died after he was negligently
discharged from the hospital, brought suit for bystander damages
against the doctor who discharged their son. Several hours after
being brought home from the hospital, Terry complained of severe
pain and his condition deteriorated. He died in the presence of
11
his parents approximately seven hours after his discharge from
the hospital.
The Louisiana Supreme Court held that, assuming the doctor's
negligent omission was the “event” that caused Terry Trahan's
injury, it “was not an injury causing-event in which the claimant
was contemporaneously aware that the event caused harm to the
direct victim, as required for recovery of Article 2315.6
damages.” Trahan, 728 So. 2d at 1280. In reaching this
decision, the Trahan Court adopted the reasoning set forth in
Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990), and
made the following statement: “The requirements of Article
2315.6, when read together, suggest a need for temporal proximity
between the tortious event, the victim's observable harm, and the
plaintiff's mental distress arising from an awareness of the harm
caused by the event.” 728 So. 2d at 1279.
The facts interpreted in plaintiffs' favor show that neither
Carol nor Kyle actually viewed or “[came] upon the scene” of the
event-causing injury (Kipps's termination), but were merely
“notified” or “informed” of the event after it occurred.8 They
do not fit within the framework of Article 2135.6 or the case law
interpreting it. Therefore, the district court's dismissal of
8
We do not comment on the second prong of Article 2315.6:
whether the harm suffered by Kipps was traumatic enough “that one
can reasonably expect a person in the claimant's position to
suffer serious mental anguish or emotional distress from the
experience.” LA. CIV. CODE ANN. art. 2315.6(B) (West 1999). Cf.
Irvin v. Foti, No. 99-1526, 1999 WL 504916, at *5 (E.D. La. July
13, 1999) (“[W]itnessing the arrest of a child, while traumatic
is simply not the kind of injury contemplated by Art. 2315.6.”).
12
the plaintiffs' “bystander recovery” claim is AFFIRMED.
CONCLUSION
For the foregoing reasons, we VACATE in part and AFFIRM in
part the decision of the district court.
13
DeMOSS, Circuit Judge, specially concurring:
I concur in the result reached by the majority opinion as to
all issues.
I write separately to express my view that our decision
affirming the district court’s grant of qualified immunity should
be based upon the ground that the Kippses failed to state a cause
of action for the violation of a clearly established
constitutional right, rather than upon the ground that
Schexnayder’s decision to fire Kipps merely because Kipps’ son
decided upon another university was objectively reasonable as a
matter of law. Whatever the factual or legal parameters of the
amorphous “constitutional liberty interest in familial
association” that the majority opinion assumes into existence, I
find no support in the case law for the proposition that such a
right was clearly established when Kipps was fired or even that
such a right is clearly established today. In sum, I agree that
the defendants are entitled to qualified immunity as a matter of
law, but I would affirm on the much stronger ground that the
Kippses failed to state a claim for violation of a clearly
established constitutional right.
I write also to express my dismay that the majority has used
this opportunity to “comment on a key element” of the defendants’
alternative justification defense, notwithstanding the majority’s
disclaimer that such comments are unnecessary to this Court’s
14
disposition and “do not speak” to the district court’s actual
ruling on the justification defense. Given the majority’s
concession that it need not, and indeed does not, reach the
issue, see Majority Opinion at 9 n.6, I would avoid “commenting”
on the law or the facts governing that defense by deleting
footnote 6 in the majority opinion. The majority has taken a
contrary approach, choosing to interject its own and rather
simplistic view of the complex issues raised by the need to
harmonize the Supreme Court’s dispositions in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993),
and Kumho Tire v. Carmichael, __ U.S. __, 119 S. Ct. 1167, 1175
(1999). That such an approach is inappropriate is perhaps best
illustrated by the majority’s decision to elevate Coach Dykes (as
a matter of law and presumably for all future cases) to the
status of an expert based upon some perceived change in the law
arising from Kumho. Kumho was not decided until after briefing
was complete in this case, and there is no adversarial briefing
on the import of Kumho. Moreover, the Court’s determination that
the defendants are entitled to qualified immunity makes any
“comments” on the effect of Kumho immaterial to the Court’s
decision. In sum, footnote 6 is nothing but gratuitous dicta
which has no place in and forms no part of our decision in this
case.
15