John Marlow v. City of Clarendon ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2533
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John Marlow
Plaintiff - Appellant
v.
City of Clarendon; Laura Rash, in her individual and official capacity; James L.
Stinson, in his individual and official capacity
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: June 13, 2023
Filed: August 14, 2023
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Before GRUENDER, ARNOLD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
John Marlow worked for the City of Clarendon, Arkansas, as a full-time police
officer. After he was terminated, he sued the City, then-Chief of Police Laura Rash,
and then-Clarendon Mayor James L. Stinson, alleging a violation of the Arkansas
Whistle-Blower Act and retaliation for the exercise of his free speech rights. The
district court1 granted summary judgment to the defendants on the free speech claim,
and the case proceeded to trial on the whistleblower claim. The jury returned a
verdict for the defendants. Marlow appeals, arguing the district court erred in its
pre-trial discovery rulings, its grant of summary judgment to the defendants, and its
denial of his motion for a new trial. We affirm.
I.
John Marlow began his position as a City of Clarendon police officer on
April 22, 2019. On May 20, 2019, Marlow, his fellow City police officers Derrick
Times and Scottie Whitcomb, and Monroe County, Arkansas, Sheriff’s Deputy
Ricky Thorne were involved in a high-speed pursuit of a car whose driver had fled
a traffic stop. Marlow used his personal cellphone to record the pursuit, which ended
when the car crashed and the front-seat passenger was ejected. Marlow, Times, and
Whitcomb arrived at the scene first. Times approached the passenger—who lay
seriously injured—and beat him with a flashlight. When Times learned that Marlow
had cellphone footage of the flashlight incident, he asked Marlow to delete the video.
Marlow complied.
The following day, Deputy Thorne asked Marlow for his dashcam video of
the pursuit. Marlow believed his dashcam did not work, which is why he had used
his cellphone for recording. But when he checked, he discovered his dashcam had
in fact captured the pursuit and flashlight incident. Marlow gave Thorne the
dashcam footage, and Thorne made a copy of it. Thorne later showed the video to a
city councilman because he wanted someone who “could investigate the situation”
to “look into” Times’s suspected “battery” of the front-seat passenger. The city
councilman recorded a short snippet of the dashcam video and told the mayor,
James L. Stinson, about it. Stinson then contacted Chief of Police Laura Rash and
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
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told her that a city councilman had received “a video of an incident that had
happened in Holly Grove,” Arkansas.
The City of Clarendon Police Department had a digital recording policy that
prohibited the duplication, use, or release of a “Mobile Digital Recording,” such as
dashcam footage, “without authorization” or “approv[al]” from the Chief of Police
or her designee. And after Rash learned of the councilman’s video, she called
Marlow and scheduled a meeting with him.
Marlow and Chief Rash met on May 29, 2019. On the advice of Deputy
Thorne, Marlow surreptitiously recorded the meeting. Rash explained to Marlow
that he had given a video to Thorne that “belong[ed] to the Clarendon Police
Department” without his “Chief’s permission.” Marlow admitted that he had shared
his dashcam footage with Thorne. But he asserted that he had “done [nothing]
wrong,” explaining that he had previously received videos from other officers of
“stuff we’ve done, just to have . . . [and] just to reflect on.” Marlow said that he
gave the video to Thorne because Thorne asked for it, and doing so was
“like . . . [Thorne] having a trophy.”
During the meeting, Marlow also suggested that he thought Officer Times
may have engaged in improper conduct. But when Rash asked Marlow why he had
failed to tell her if he “thought [something] was wrong,” Marlow replied, “I didn’t
call you because I wasn’t trying to get [Times] in trouble.” Both Marlow and Rash
grew emotional during the meeting, and Rash ultimately told Marlow she was
“sorry” that she had to terminate him.
After the meeting, Marlow encountered Officers Whitcomb and Times as he
left the police station. With his audio device still recording, Marlow told Whitcomb
and Times that he “did not turn in any video” to city officials. Marlow lamented that
Deputy Thorne had thrown him “underneath the . . . bus,” and he repeated that he
gave the dashcam video to Thorne only after Thorne asked for it. Marlow insisted
to Times and Whitcomb that he had “protected” them.
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Four months later, Marlow sued Chief Rash and Mayor Stinson in their
individual and official capacities, and the City, alleging a violation of the Arkansas
Whistle-Blower Act (AWBA) and retaliation for the exercise of his free speech
rights under the First Amendment and the Arkansas Constitution. Before trial,
Marlow deposed Chief Rash, but she left the deposition before it was completed, and
Marlow filed a motion for sanctions. Marlow also sought to depose Special Agent
Michael Garlington of the Arkansas State Police, who had investigated the City’s
police department in light of the May 2019 flashlight incident. When Garlington
refused to testify, Marlow moved to compel his deposition.
While these motions were pending, the defendants moved for summary
judgment. Marlow responded by filing a motion to stay summary judgment, citing
“pervasive” discovery issues related to the uncompleted depositions of Rash and
Garlington. In an omnibus ruling, the district court denied Marlow’s motion for
sanctions, motion to compel, and motion to stay. The court also granted summary
judgment in the defendants’ favor on Marlow’s free speech claim.2 Marlow’s
whistleblower claim then proceeded to trial.
At trial, the audio recording of Marlow’s meeting with Chief Rash and his
subsequent encounter with Officers Times and Whitcomb was played for the jury.
Marlow also testified. He told the jury that what he said on the recording was not
true. Marlow explained that he “lie[d]” to Rash, Whitcomb, and Times in order “to
protect [himself] and [his] family.” Marlow claimed that he gave his dashcam
footage to Thorne because he was concerned about the “excessive use of force [he
saw] being used on an American citizen.” Marlow admitted, however, that he did
not express this concern to Rash, nor did he tell Rash that he gave the video to
Thorne—or to the City Council by way of Thorne—to prompt an investigation.
2
The district court also granted summary judgment on the AWBA claims
asserted against Chief Rash and Mayor Stinson in their individual capacities, but it
retained supplemental jurisdiction over the remaining AWBA claim pursuant to 28
U.S.C. § 1367.
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Rash also testified. She said that if Marlow had told her, “I think that there was
wrongdoing and I have video of it,” she would have “turned [the video] over” and
requested that another agency conduct an investigation. Marlow acknowledged
during his testimony that he had once reported misconduct by Times, and that after
he did so, Rash initiated an investigation and asked Marlow to “write out a
statement” about what happened. Marlow testified that he suffered no repercussions
for making this report.
After a three-day trial, the jury found in favor of the City, Chief Rash, and
Mayor Stinson. Marlow moved for judgment as a matter of law, see Fed. R. Civ. P.
50(b), or, in the alternative, for a new trial, see Fed. R. Civ. P. 59(a)(1)(A). The
district court denied the motion. Marlow now appeals.
II.
A.
Marlow first challenges the district court’s rulings on his discovery requests
concerning the depositions of Chief Rash and Agent Garlington. “We review a
district court’s discovery rulings for abuse of discretion,” and we will reverse “only
where the errors amount to a gross abuse of discretion resulting in fundamental
unfairness.” Vallejo v. Amgen, Inc., 903 F.3d 733, 742 (8th Cir. 2018) (citations
omitted).
Under Federal Rule of Civil Procedure 26(b)(1), a party “may obtain
discovery regarding any nonprivileged matter that is relevant to [its] claim or defense
and proportional to the needs of the case.” If a party resists discovery, the requesting
party “may move for an order compelling disclosure or discovery.” Fed. R. Civ.
P. 37(a)(1).
Marlow argues that the district court abused its discretion in denying his
motion to compel Chief Rash’s deposition after she ended it early. But Marlow
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never filed a motion to compel Rash to continue the deposition. In any event, Rash
testified at trial as a witness for both Marlow and the defendants, and Marlow does
not specify what additional evidence he could have elicited from Rash had the
deposition continued, or how the shortened deposition prejudiced him at trial. See
Vallejo, 903 F.3d at 746–47 (concluding that no prejudice existed where allowing
the plaintiff to depose an additional witness would not have supplied the testimony
the plaintiff claimed was missing). And to the extent Marlow appeals the district
court’s decision to deny his motion for sanctions, we see no abuse of discretion. See
Holmes v. Trinity Health, 729 F.3d 817, 820 (8th Cir. 2013) (reviewing the denial
of discovery sanctions for abuse of discretion and giving “substantial deference to
the district court’s determination”); see also MacGregor v. Mallinckrodt, Inc., 373
F.3d 923, 934 (8th Cir. 2004) (“Imposition of discovery sanctions requires an order
compelling discovery [first], a willful violation of that order, and prejudice to the
other party.” (cleaned up)).
Marlow also claims error based on the district court’s refusal to compel the
deposition of Agent Garlington. According to Marlow, Garlington interviewed Rash
about the police department’s use of force after the May 2019 flashlight incident,
and Marlow claims he “should have been able to know what Rash . . . told
Garlington.” But Marlow has failed to show, beyond mere speculation, how
deposition testimony about that interview would have been relevant to his
whistleblower and free speech claims. See Hofer v. Mack Trucks, Inc., 981 F.2d
377, 380 (8th Cir. 1992) (explaining that Rule 26(b) does not “allow fishing
expeditions in discovery” and that a party must first make a “threshold showing of
relevance” of the evidence requested). Moreover, Garlington testified at trial, and
here, too, Marlow has failed to articulate how the absence of pre-trial discovery
concerning this testimony resulted in “fundamental unfairness” at trial. See
Moses.com v. Comprehensive Software Sys., 406 F.3d 1052, 1060 (8th Cir. 2005).
We discern no abuse of discretion from the district court’s discovery rulings.
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B.
We turn to Marlow’s argument that the district court erred in denying his
motion to stay summary judgment for additional discovery. Under Federal Rule of
Civil Procedure 56(d), a court may defer consideration of a summary judgment
motion or allow time for discovery “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition.” The party seeking additional discovery must show: “(1) that they have
set forth in affidavit form the specific facts that they hope to elicit from further
discovery, (2) that the facts sought exist, and (3) that these sought-after facts are
essential to resist the summary judgment motion.” Toben v. Bridgestone Retail
Operations, LLC, 751 F.3d 888, 895 (8th Cir. 2014) (cleaned up). If a party fails to
carry its burden, “postponement of a ruling on a motion for summary judgment is
unjustified.” Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 911 (8th Cir.
1999) (quoting Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081
(8th Cir. 1993)). We review the denial of a Rule 56(d) motion for an abuse of
discretion. Toben, 751 F.3d at 894.
Even liberally construing Marlow’s motion, he failed to meet the requirements
of Rule 56(d). The motion merely stated that Marlow “obviously need[ed] the ability
to cross examine [Chief Rash] about the termination meeting” and that he “need[ed]
the deposition of [Agent Garlington] who interviewed [Rash].” Such “unspecific
assertion[s]” are insufficient under Rule 56(d). Anzaldua v. Ne. Ambulance & Fire
Prot. Dist., 793 F.3d 822, 837 (8th Cir. 2015); see Elkharwily v. Mayo Holding Co.,
823 F.3d 462, 472 (8th Cir. 2016) (affirming the denial of a Rule 56(d) motion where
the plaintiff “had no meritorious justification for additional discovery”). And
Marlow did not explain how the evidence he sought was relevant “to rebut [the
defendants’] showing of the absence of a genuine issue of fact.” Ray v. Am.
Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010) (quoting Humphreys, 990 F.2d at
1081). Thus, the district court did not abuse its discretion in denying Marlow’s
request for further discovery before granting in part the defendants’ motion for
summary judgment.
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C.
Marlow next challenges the district court’s grant of summary judgment to the
defendants on his retaliation claim under the First Amendment and the Arkansas
Constitution.3 See McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 865
(8th Cir. 2009) (analyzing free speech retaliation claims asserted under the Arkansas
and federal constitutions under the same standard).
We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Martinez v. W.W.
Grainger, Inc., 664 F.3d 225, 229 (8th Cir. 2011). Summary judgment is appropriate
if there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Meyer v. McKenzie Elec. Coop., Inc., 947 F.3d 506,
508 (8th Cir. 2020); Fed. R. Civ. P. 56(a). To defeat summary judgment, “the
nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (cleaned up).
“A public employer ‘may not discharge an employee on a basis that infringes
that employee’s constitutionally protected interest in freedom of speech.’” McGee
v. Pub. Water Supply, Dist. No. 2 of Jefferson Cnty., 471 F.3d 918, 919 (8th Cir.
2006) (quoting Rankin v. McPherson, 483 U.S. 378, 383 (1987)). To establish his
free speech retaliation claim, Marlow “must prove that he engaged in protected
activity, and that this activity was a substantial or motivating factor in his employer’s
decision to terminate him.” McCullough, 559 F.3d at 865. “If [Marlow] meets this
3
Marlow argues that the district court “refused to recognize any [First
Amendment] Petition Clause claim.” But contrary to Marlow’s assertion, no such
claim was pleaded in his complaint. Thus, “while we recognize that the pleading
requirements under the Federal Rules are relatively permissive, they do not entitle
parties to manufacture claims, which were not pled, late into the litigation for the
purpose of avoiding summary judgment.” N. States Power Co. v. Fed. Transit
Admin., 358 F.3d 1050, 1057 (8th Cir. 2004).
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burden, then the burden of proof shifts to [the City] to show that it would have taken
the same action regardless of his free speech activities.” Id.To determine whether Marlow’s speech4 is protected, we must first determine
whether he “spoke as a citizen on a matter of public concern.” Hemminghaus v.
Missouri, 756 F.3d 1100, 1110 (8th Cir. 2014) (quoting Garcetti v. Ceballos, 547
U.S. 410, 418 (2006)). If he did not, then his claim must fail “because no protected
speech is at issue.” McCullough, 559 F.3d at 866. If he did, then Marlow’s “right
to comment on matters of public concern must next be balanced with the employer’s
interest in promoting the efficiency of the public services it performs through its
employees.” Id. (cleaned up) (quoting Sparr v. Ward, 306 F.3d 589, 594 (8th Cir.
2002)).
“Speech that involves a matter of political, social or other concern to the
community is of public concern.” Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112,
1117 (8th Cir. 1997). Marlow argues that he engaged in protected speech because a
“reasonable [person] would have to find that a video of a police officer beating an
innocent citizen is a matter of public concern.” As a general matter, that may be
true. But “[o]ur focus remains on [Marlow’s] purpose in speaking.” McCullough,
559 F.3d at 867. And the summary judgment record shows that Marlow’s purpose
in speaking here—i.e., giving the video to Deputy Thorne—was to give Thorne “a
trophy” of the police pursuit. Marlow nonetheless contends that “[a]n observer
would understand that [he] was attempting to report governmental misconduct to the
City Council.” But at summary judgment, there was no evidence that Marlow sought
to convey that message when he gave the video to Deputy Thorne. Instead, the
record showed that Marlow asserted the opposite, telling Whitcomb and Times that
he was trying to “protect[]” them and expressly denying any intent to give the video
to Thorne for investigatory purposes. The district court did not err in granting
summary judgment on Marlow’s free speech claim.
4
We assume, without deciding, that Marlow’s turnover of the dashcam video
to Deputy Thorne amounted to speech.
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D.
Marlow also challenges the district court’s denial of his motion for a new trial
on his whistleblower claim, see Ark. Code Ann. § 21-1-601 et seq. “We review the
denial of a motion for a new trial for a ‘clear’ abuse of discretion.” Hallmark Cards,
Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013) (quoting Harrison v. Purdy Bros.
Trucking Co., 312 F.3d 346, 351 (8th Cir. 2002)). We will reverse “only if the
evidence weighs heavily against the verdict.” Id.“The AWBA protects public employees from retaliation based on the
employee’s good-faith reporting of the violation of a law, rule, or regulation, or the
waste of public funds, to an appropriate authority.” Harris v. Hutchinson, 591
S.W.3d 778, 781 (Ark. 2020); see Ark. Code Ann. § 21-1-603. However, the City,
as a public employer, “has an affirmative defense to a whistle-blower lawsuit if the
adverse action taken against the employee was due to employee misconduct, poor
job performance, or a reduction in workforce unrelated to a [whistleblowing]
communication.” Entmeier v. City of Fort Smith, 506 S.W.3d 253, 257 (Ark. Ct.
App. 2016) (cleaned up) (quoting Ark. Code Ann. § 21-1-604(e)(1)). Accordingly,
to prevail on his AWBA claim, Marlow had to show “that he suffered an adverse
action because he engaged or intended to engage in an activity protected under the
Act and that such action was unrelated to his own misconduct or poor job
performance.” Barrows v. City of Fort Smith, 360 S.W.3d 117, 124 (Ark. 2010);
see also Ark. Code Ann. § 21-1-604(c).
The jury heard Marlow say that he gave the dashcam video to Deputy Thorne
to provide Thorne with a “trophy.” See Ark. Code Ann. § 21-1-603(b)(2) (defining
“[g]ood faith” reports under the AWBA to exclude “frivolous” communications
made by a public employee). Marlow testified otherwise at trial, but it was up to the
jury to determine whether Marlow made a “good faith” report of a “violation or
suspected violation of a law, rule, or regulation.” Id. § 21-1-603(a)(1). And while
Marlow claims that his “intent” is irrelevant under the AWBA, his argument is
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contrary to the plain text of the statute. See id. § 21-1-603(b)(2); id. § 21-1-604(c).
Based on the evidence presented at trial, a reasonable jury could find that Marlow
failed to satisfy his burden of proof on his whistleblower claim.
Marlow also argues that a new trial was warranted because the district court
excluded the testimony of two witnesses concerning Officer Times’s “serious”
police misconduct in another matter and evidence about the lack of any disciplinary
action following that misconduct. But the issue at trial was whether Marlow was
entitled to whistleblower protection, and the proffered evidence was not relevant to
this issue. See Fed. R. Evid. 401 (explaining that evidence is “relevant” if it tends
to make the existence of any consequential fact “more or less probable”). The
district court did not abuse its discretion in denying Marlow’s motion for a new trial.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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