Eddie Pennypacker, et al v. City of Pearl, Mississippi, et al

Filing

UNPUBLISHED OPINION FILED. [16-60688 Reversed in Part, Dismissed for Lack of Jurisdiction in Part and Remanded] Judge: EHJ , Judge: EBC , Judge: SAH. Mandate pull date is 06/02/2017; sua sponte grant summary judgment [8496433-3] [16-60688]

Case: 16-60688

Document: 00513991788

Page: 1

Date Filed: 05/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60688
EDDIE A. PENNYPACKER; JONATHAN BLAKE LEWIS,

FILED
May 12, 2017
Lyle W. Cayce
Clerk

Plaintiffs - Appellees
v.
THE CITY OF PEARL, MISSISSIPPI; MAYOR BRAD ROGERS,
Individually; MELVIN MYERS, Individually, also known as Scooter,
Defendants - Appellants

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:14-CV-262
Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiffs Eddie A. Pennypacker and Jonathan Blake Lewis brought a
complaint arising out of their terminations from the Pearl Municipal Golf
Course. They allege that they were fired for reporting their supervisor Melvin
“Scooter” Myers’s misuse of city resources to Mayor Brad Rogers. According to
plaintiffs, Mayor Rogers terminated them after holding a hearing, and then

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-60688

Document: 00513991788

Page: 2

Date Filed: 05/12/2017

No. 16-60688
the City of Pearl’s seven-member Board of Aldermen sustained the
terminations.
Plaintiffs asserted claims under federal and state law, including a claim
for First Amendment retaliation brought under 42 U.S.C. § 1983. The district
court granted in part and denied in part defendants’ motion for summary
judgment. In so ruling, the district court did not address the individual
defendants’ request for qualified immunity; nor did it identify any of the
material factual issues that it found to be in dispute.
The City of Pearl, Mayor Rogers, and Myers appeal the district court’s
denial of summary judgment on plaintiffs’ claim for First Amendment
retaliation brought under § 1983. Based on our review of the briefs, the record,
the applicable law, and the arguments of counsel, we REVERSE the district
court’s denial of summary judgment on plaintiffs’ First Amendment retaliation
claim. Plaintiffs concede that Mayor Rogers and Myers were not the final
decision-makers responsible for their terminations. It is not clearly established
in this circuit whether these individual defendants may be held personally
liable for First Amendment retaliation under § 1983. See Culbertson v. Lykos,
790 F.3d 608, 627 (5th Cir. 2015); Johnson v. Louisiana, 369 F.3d 826, 831 (5th
Cir. 2004) (“[O]nly final decision-makers may be held liable for First
Amendment

retaliation

employment

discrimination

under

§

1983.”).

Accordingly, we GRANT summary judgment based on qualified immunity in
favor of Mayor Rogers and Myers. We further DISMISS the appeal brought by
the City of Pearl for lack of pendent appellate jurisdiction. See McKee v. City of
Rockwall, 877 F.2d 409, 412-13 (5th Cir. 1989).
On remand, Judge Wingate is directed to deliver this case to the Chief
Judge of the Southern District of Mississippi for reassignment. See In re State
of Miss., No. 16-60610 (5th Cir. Sept. 29, 2016).
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