Roger D. Speer v. City of Wynne, AR ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3776
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Roger D. Speer, *
*
Appellee, *
*
v. *
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City of Wynne, Arkansas, *
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Appellant. *
______________ Appeals from the United States
District Court for the
No. 00-3777 Eastern District of Arkansas.
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Roger D. Speer, *
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Appellant, *
*
v. *
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Danny Glover, Individually and as *
Deputy Prosecuting Attorney, *
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Appellee. *
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Submitted: September 14, 2001
Filed: January 14, 2002
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Before MCMILLIAN, BEAM, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Roger D. Speer filed this action pursuant to 42 U.S.C. § 1983, alleging that the
City of Wynne, Arkansas (City), the City's mayor, James Green, and Deputy
Prosecuting Attorney Danny Glover violated his procedural due process right to a
name-clearing hearing. The district court granted summary judgment to Prosecutor
Glover and, following a bench trial, entered judgment against the City but in favor of
Mayor Green. The City appeals the district court's judgment in favor of Speer, and
Speer cross-appeals the district court's grant of summary judgment to the deputy
prosecutor. We affirm in part, reverse in part, and remand for further findings of fact
and conclusions of law.
I.
The material facts are not in dispute. Lieutenant Speer was a long-time police
officer in the Wynne Police Department in Cross County, Arkansas. During a 1996
investigation into charges that the Cross County Sheriff's Department was misusing
prisoners, Susan Combs, a Cross County jail detainee, alleged that Lieutenant Speer
had engaged in sexual acts with detainees in exchange for favors such as reduced jail
time and reduced fines. Deputy Prosecutor Glover learned of the allegations against
Speer and asked the Arkansas state police to conduct an investigation into them.
During the ensuing investigation, Denise Hill similarly reported that Lieutenant Speer
had sex with Combs and Christy Hubbard, another Cross County jail detainee, in
exchange for various favors. Ms. Hill also alleged that Lieutenant Speer had
propositioned her for sex in exchange for her early release from jail.
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Mayor Green, Police Chief Lynne Rodgers, Prosecuting Attorney Fletcher
Long, and Deputy Prosecutor Glover, held a meeting on April 17, 1997, to discuss the
allegations against Lieutenant Speer and the completed investigation. Long and
Glover informed the city officials that they would not prosecute Lieutenant Speer for
various reasons. The group then discussed the appropriate employment action to be
taken against Lieutenant Speer. Chief Rodgers reluctantly terminated Speer's
employment with the department later that same day.
After Speer's discharge, a reporter with the Arkansas Democrat-Gazette
newspaper contacted both Mayor Green and Deputy Prosecutor Glover to discuss the
investigation and the employment action taken against Speer. The following article
was published in the April 19, 1997, edition of the Arkansas Democrat-Gazette.
Wynne Officer out, won't face charges from investigation
By Sandy Davis
Arkansas Democrat-Gazette
WYNNE – A Wynne Glover said the allegations
policeman was fired this week against Speer concern the officer
over allegations of sexual trading sex with female suspects
misconduct while on the job, for favors. He said at least one of
Deputy Prosecuting Attorney the females was an inmate in the
Danny Glover said. county jail.
Glover said that he and "Mr. Long and I looked at
Prosecuting Attorney Fletcher filing criminal charges against
Long of Forrest City him, but in the end we decided we
recommended to city officials couldn't," Glover said. "So, our
that Lt. Roger Speer, a recommendation was to tell the
criminal investigator with the city to handle it. Our preference
department, be fired after they was that he be fired."
reviewed the results of an Glover said there were three
Arkansas State Police allegations that were investigated.
criminal investigation. "One of them we didn't feel
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like was a crime," Glover said reached for comment on
of why no charges were filed. Friday.
"Another one, we believed the Wynne Mayor Bud
statute of limitations had Green said Friday that Speer
expired, and on the third one, was fired Thursday.
it was one of those where we "As I understand it, the
questioned whether we could investigation is over with," he
meet our burden of proof. said. "I looked at the
The victim's credibility could investigative file and Speer
be questioned because of her was the only one they were
extensive criminal history." looking at."
Glover said the Green, who has been
investigation into the mayor two years, said he did
department was continuing. not know how long Speer had
"Until then, I'm not been a police officer.
going to comment on the "The allegations against
specifics," he said. him were not from recent events,"
Glover said he had Green said. "As I understand it,
provided Wynne Police Chief they all happened some time ago.
Lynn Rodgers with a copy of They all happened long before I
the investigative file. was mayor."
Rodgers could not be
(J.A. at 199.)
Speer filed this § 1983 action less than a week after the article appeared in the
newspaper. He claimed that the City, Mayor Green, and Glover violated his
procedural due process rights by terminating his employment without affording him
an opportunity to contest the allegations against him at a hearing. The district court
thereafter granted summary judgment to Glover on the basis that Glover had no
employment relationship with Speer. Speer's remaining claims were tried to the
district court in a bench trial.
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Ms. Hill testified during the trial and, to the apparent surprise of the parties,
recanted her earlier allegations against Speer. Ms. Hill testified that the sheriff's wife
approached her in jail and promised an early release from jail if Ms. Hill made the
false accusations against Speer. According to Ms. Hill, the sheriff and his wife
wanted to have Speer fired from the police department, and Ms. Hill's false
allegations were intended to support the allegations first made by Ms. Combs. Ms.
Hubbard also testified and denied that Speer ever asked her to engage in sex in
exchange for favors. As a final blow to the defendants, City Police Chief Michael
Miller, Chief Rodgers' successor, testified that Ms. Combs demanded that she be
released from jail and relieved from fines she owed the City or she would refuse to
testify on behalf of the City. Chief Miller further testified that Ms. Combs was
subsequently released from jail, that her fines were waived, and that he feared his
testimony would cost him his job. The district court later reopened the evidence to
reflect that the City terminated Chief Miller's employment twelve days after his
testimony.1
In light of the trial testimony, the City conceded to the district court that the
allegations against Speer all had been false. The district court subsequently issued
judgment against the City, concluding in its written findings that Speer was entitled
to a hearing to contest the tarnishing allegations that Mayor Green made public in the
newspaper article. The district court did not discuss Speer's due process claim against
Mayor Green but entered judgment in the Mayor's favor.
1
Chief Miller has filed a lawsuit alleging that he was fired in retaliation for
testifying against the City.
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II.
A.
An at-will, public employee generally has no protected liberty interest in
continued employment which would obligate a state employer to provide some form
of a hearing in connection with the employee's discharge. See Bishop v. Wood, 426
U.S. 341, 348 (1976). An exception to this general rule exists where a state employer
creates and disseminates a false and defamatory impression about the at-will
employee in connection with the discharge. The Supreme Court has recognized in
such situations that the Constitution's procedural due process protections require the
employer to provide the employee with an opportunity to dispute the defamatory
allegations in what is commonly referred to as a name-clearing hearing. Codd v.
Velger, 429 U.S. 624, 627-28 (1977); Singleton v. Cecil, 176 F.3d 419, 427 (8th Cir.)
(en banc), cert. denied, 528 U.S. 966 (1999). The right to a name-clearing hearing
protects the employee's liberty interest in his or her good name and reputation, and
it prevents a public employer from depriving an employee of that interest without due
process. See Merritt v. Reed, 120 F.3d 124, 126 (8th Cir. 1997). A public employee
must make a three-part showing to establish the deprivation of a liberty interest in his
good name: 1) the public employer's reasons for the discharge stigmatized the
employee by seriously damaging his standing and association in the community or by
foreclosing employment opportunities that may otherwise have been available; 2) the
public employer made the reason or reasons public; and 3) the employee denied the
charges that led to the employee's firing. See Coleman v. Reed 147 F.3d 751, 754-55
(8th Cir. 1998); Merritt, 120 F.3d at 126; Waddell v. Forney, 108 F.3d 889, 895-96
(8th Cir. 1997).
The City argues the district court erred in holding it liable for a violation of
Speer's due process right to a name-clearing hearing for two reasons. First, the City
argues Speer failed to show that Mayor Green made the reasons for his discharge
public. The City argues alternatively that it cannot be subject to municipal liability
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under § 1983 because the district court made no underlying finding that Mayor Green
violated Speer's constitutional rights. In an appeal from a judgment following a
bench trial, our review of the district court's factual findings is limited to clear error.
Santucci v. Allstate Life Ins. Co., 221 F.3d 1045, 1047 (8th Cir. 2000). We review
de novo the district court's conclusions of law. Id.The requisite dissemination triggering the right to a name-clearing hearing
occurs where the public employer makes stigmatizing allegations, in connection with
the employee's discharge, "in any official or intentional manner." In re Selcraig, 705
F.2d 789, 796 n.6 (5th Cir. 1983) (internal quotations omitted). The City argues that
the statements attributed to Mayor Green in the article did not identify the nature of
the allegations against Speer and that the article is therefore insufficient to support
the district court's finding that Mayor Green made the discharge reasons public.
According to the City, the comments attributed to Glover in the article disclosed the
nature of the investigation, and Glover's statements cannot be attributed to the City
because Glover is a state prosecuting attorney, and not a city employee. See Merritt,
120 F.3d at 126 (concluding that summary judgment should have been granted where
publication was not attributable to any of the employer's employees). The City relies
too heavily on the journalistic whims of the article's author in attributing statements
to either Mayor Green or Glover rather than on the impression that Mayor Green
conveyed to the reporter and anyone who would have read the article. It is clear that
Mayor Green willingly discussed the allegations against Speer with a reporter,
someone whom one would logically expect to publicize what one tells them. The
article also indicates that Mayor Green confirmed that Speer had been discharged and
that there was, or had been, an investigation into the matters the reporter had
discussed with Glover. Based on these facts alone, the district court did not commit
clear error in concluding that Mayor Green disseminated a false impression of Speer
in connection with his discharge. Cf. Winegar v. Des Moines Indep. Cmty. Sch., 20
F.3d 895, 899 n.3 (8th Cir.) (finding publication element satisfied where outside
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investigator was hired and students were interviewed during investigation into
allegations against a teacher), cert. denied, 513 U.S. 964 (1994).
The next question is whether a sufficient basis exists to support the district
court's decision to impose municipal liability. Relying on Los Angeles v. Heller, 475
U.S. 796 (1986), the City suggests that we must reverse because the district court
failed to find that Mayor Green was individually liable for a violation of Speer's
constitutional rights. In Heller, the plaintiff brought a § 1983 suit against a police
officer, the police commission (the officer's employer), and the city. The plaintiff
alleged that he was arrested without probable cause and that the officer used
excessive force in making the arrest. The jury returned a verdict in favor of the
officer, and the district court then dismissed the municipal defendants. The Supreme
Court upheld the dismissal in a per curiam decision, reasoning that the municipal
defendants' alleged liability stemmed from their legal responsibility for the officer's
conduct and that a finding that the officer's conduct was not unconstitutional obviated
any possibility that the municipal defendants were subject to liability. Id. at 799 ("If
a person has suffered no constitutional injury at the hands of the individual police
officer, the fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.").
Our court has previously rejected the argument that Heller establishes a rule
that there must be a finding that a municipal employee is liable in his individual
capacity as a predicate to municipal liability. See Praprotnik v. City of St. Louis, 798
F.2d 1168, 1172-73 n.3 (8th Cir. 1986), rev'd on other grounds, 485 U.S. 112 (1988);
see also Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992) ("A public entity or
supervisory official may be liable under § 1983, even though no government
individuals were personally liable."). As our court noted in Praprotnik, a crucial fact
underlying the Supreme Court's decision in Heller was that the theory of municipal
liability asserted was entirely dependent on the municipal defendants' responsibility
for the officer's alleged unconstitutional acts. See Praprotnik, 798 F.2d at 1173 n.3.
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A favorable verdict for the individual officer, therefore, would have been entirely
inconsistent with a finding that the municipal defendants were responsible for the
unconstitutional behavior.2 Heller should not be read to require a plaintiff to show
more than that a governmental policy or custom was the "moving force" that led to
the deprivation of his constitutional rights, the foundation for municipal liability
recognized by the Court in Monnell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
The appropriate question under Heller is whether a verdict or decision
exonerating the individual governmental actors can be harmonized with a
concomitant verdict or decision imposing liability on the municipal entity. The
outcome of the inquiry depends on the nature of the constitutional violation alleged,
the theory of municipal liability asserted by the plaintiff, and the defenses set forth
by the individual actors. We do not suggest that municipal liability may be sustained
where there has been no violation of the plaintiff's constitutional rights as a result of
action by the municipality's officials or employees. Cf. Trigalet v. City of Tulsa, 239
F.3d 1150, 1156 (10th Cir. 2001) (concluding that a municipality may be held liable
only if the conduct of its employees directly caused a violation of a plaintiff's
constitutional rights); Schulz v. Long, 44 F.3d 643, 650 (8th Cir. 1995) ("It is the law
in this circuit . . . that a municipality may not be held liable on a failure to train theory
unless an underlying Constitutional violation is located."). After all, a municipality
2
Commentators also have suggested that Heller does not stand for the broad
proposition that personal liability is a prerequisite to municipal liability. See Barbara
Kritchevsky, Making Sense of State of Mind: Determining Responsibility in Section
1983 Municipal Liability Litigation, 60 Geo. Wash. L. Rev. 417, 454 (1992) ("Heller
is best viewed as a case in which the Supreme Court struck what it considered an
inconsistent jury verdict and did not seek to establish any new principle of municipal
liability law."); Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation:
Claims, Defenses, and Fees § 7.6 (2d ed. 1991) ("Heller . . . should not be read as
announcing a broad rule requiring dismissal of the claim against the municipality in
every case in which it is found that the defendant officer was not a constitutional
violator.").
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can act only through its officials and employees. However, situations may arise
where the combined actions of multiple officials or employees may give rise to a
constitutional violation, supporting municipal liability, but where no one individual's
actions are sufficient to establish personal liability for the violation. See Garcia v.
Salt Lake County, 768 F.2d 303, 310 (10th Cir. 1985); see also De Feliciano v. De
Jesus, 873 F.2d 447, 450 (1st Cir.) (recognizing that a jury's verdict exonerating
individual defendants for unconstitutional termination of a plaintiff's employment
may be reconcilable with a verdict holding the municipal entity liable for the
violation), cert. denied, 493 U.S. 850 (1989).
The district court's decision to impose liability on the City here is potentially
reconcilable with its judgment in favor of Mayor Green. The district court found that
Mayor Green publicized the allegations against Speer, but the constitutional violation
accrues only when an employee is denied the opportunity to clear his name. It is
possible, for instance, that the district court relied on the fact that some other city
official or officials with final employment-policymaking authority (such as the city
council) refused Speer the opportunity to clear his name. If so, Mayor Green's
conduct would have been insufficient to support individual liability, yet the City
would be liable for the act of its policymaker who did deny Speer that opportunity.
Municipal liability may attach based on the single act or decision of a municipal
decisionmaker if the decisionmaker possesses final authority to establish municipal
policy over the subject matter in question. See City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988). It may also be possible that the district court found that a final
policymaker ratified the decision to discharge Speer without a hearing, which could
also form the basis for municipal liability. See id. at 127 ("If the authorized
policymakers approve a subordinate's decision and the basis for it, their ratification
would be chargeable to the municipality because their decision is final.").
Because the district court did not make findings concerning which City
policymakers violated Speer's rights and did not make specific conclusions of law
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concerning the theory of municipal liability supporting its judgment against the City,
we cannot say with any certainty that the court's decisions can or cannot be
harmonized. We therefore find it necessary to remand this case to the district court
to make specific findings of fact and conclusions of law explaining the basis for the
City's liability and explaining the basis for Mayor Green's dismissal. See Boatmen's
First Nat'l Bank v. Kansas Pub. Employees Ret. Sys., 57 F.3d 638, 640 n.5 (8th Cir.
1995). ("Appellate review absent specific findings and conclusions from the district
court may proceed only when (1) the record itself sufficiently informs the court of the
basis for the trial court's decision on the material issues, or (2) the contentions raised
on appeal do not turn on findings of fact." (quotations omitted)). On remand, the
district court should specifically determine who denied Speer the opportunity to clear
his name and whether that person had final policymaking authority over City
employment decisions.3
B.
Speer cross-appeals the district court's grant of summary judgment in favor of
Glover. Glover moves to dismiss the cross-appeal, arguing that we lack appellate
jurisdiction in this case. We agree. The district court issued its order granting
summary judgment to Glover on November 25, 1998. In its order, the district court
stated, "[p]ursuant to Fed. R. Civ. Pro. 54(b), the Court finds no reason to delay
entering judgment for Glover on all claims raised in [Speer's] Complaint; therefore,
judgment will be entered accordingly." (Speer's Add. at 5.) The district court issued
judgment in favor of Glover the same day, but Speer did not file his notice of appeal
until October 16, 2000.
3
The City also argues that the damages awarded to Speer were excessive. In
light of our decision to remand for further proceedings, we express no opinion on the
validity of the damage award.
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Generally, an order that adjudicates less than all claims involved in an action
does not constitute a final appealable order. See Fed. R. Civ. P. 54(b). Rule 54(b)
provides an exception where the district court makes an "express determination" that
there is no just reason to delay entering judgment despite the fact that all the claims
in the action have not been resolved. Where the district court's intent to enter a partial
final judgment under Rule 54(b) is clear, the order is considered appealable. See
Kocher v. Dow Chem. Co., 132 F.3d 1225, 1228-29 (8th Cir. 1997). We conclude
that the district court expressed a clear intention to enter a partial final judgment on
the claim against Glover and did so on November 25, 1998. As a consequence,
Speer's notice was untimely under Fed. R. App. P. 4(a)(1)(A) because it was not filed
with the district court within 30 days after the district court entered judgment in favor
of Glover. Accordingly, we grant Glover's motion to dismiss Speer's cross-appeal for
lack of appellate jurisdiction.
II.
For the reasons stated, we reverse in part and remand for further development
of the record and for further proceedings consistent with this opinion in the case
against the City, and we dismiss Speer's cross-appeal for lack of jurisdiction.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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