Camp et al v. Correctional Medical Services, Inc. et al

Filing 129

MEMORANDUM OPINION AND ORDER that: (1) Plaintiff's 69 Motion for Summary Judgment is DENIED; (2) CMS's 70 Motion for Summary Judgment is GRANTED; and (3) ADOC defendants' 73 Motion for Summary Judgment is GRANTED as to both Plain tiffs' § 1983 First Amendment retaliation claim against Allen, GRANTED as to Martindales § 1983 First Amendment retaliation claim against Ferrell, DENIED as to Martindales § 1983 First Amendment retaliation claim against Naglich, DENIED as to Camps § 1983 First Amendment retaliation claim against Ferrell and Naglich, GRANTED as to Plaintiffs' tortious interference with business and employment relations claim against all the ADOC defendants, GRANTED as to both Plaint iffs' slander per se claim against Naglich, GRANTED as to both Plaintiffs' tort of outrage claim against all the ADOC defendants, GRANTED as to both Plaintiffs' wanton supervision claim against Allen and Naglich, and DENIED as to both Plaintiffs' civil conspiracy claim against Ferrell and Naglich. Surviving in this action are the following claims: (1) Camp's § 1983 First Amendment retaliation claim against Ferrell and Naglich; (2)Martindale's § 1983 First Amendment retaliation claim against Naglich; and (3)Both Plaintiffs' civil conspiracy claim against Ferrell and Naglich. Signed by Honorable William Keith Watkins on 10/22/2009. (Attachments: # 1 Civil Appeals Checklist)(cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D R . LARRY CAMP, et al., ) ) P l a i n t if f s , ) ) v. ) ) C O R R E C T IO N A L MEDICAL SERVICES, ) IN C ., et al., ) ) D e f e n d a n ts . )

C A S E NO. 2:08-CV-227-WKW [WO]

M E M O R A N D U M OPINION AND ORDER P la in tif f s Dr. Larry Camp ("Camp") and Sabrina Martindale ("Martindale") (c o lle c tiv e ly "Plaintiffs") bring this action against Correctional Medical Services, Inc. (" C M S " ), Richard F. Allen ("Allen"), Ruth Naglich ("Naglich"), and Laura Ferrell (" F e rre ll"),1 alleging First Amendment violations under 42 U.S.C. § 1983 and various state la w claims. (Am. Compl. (Doc. # 37).) This cause is before the court on Plaintiffs' motion f o r partial summary judgment on Camp's § 1983 claims (Doc. # 69), CMS's motion for su m m ary judgment on all claims (Docs. # 70, 71), and Allen, Naglich, and Ferrell's ( c o lle c tiv e l y "the ADOC defendants") motion for summary judgment on all claims (Docs. # 73, 74). After careful consideration of counsels' briefs, the relevant law, and the record a s a whole, the court finds that Camp's motion is due to be denied, CMS's motion is due to b e granted, and the ADOC defendants' motion is due to be granted in part and denied in part.

Plaintiffs have sued Allen, Naglich, and Ferrell in their individual and official capacities. (Am. Compl.)

1

I . JURISDICTION AND VENUE T h e parties do not dispute subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 a n d 1367; nor do the parties contest personal jurisdiction or venue. There are adequate a lle g a tio n s in support of each. I I . FACTUAL AND PROCEDURAL BACKGROUND T h is case arises out of CMS's failure to hire Camp and Martindale to the positions of d e n tis t and dental assistant, respectively, at the Limestone Correctional Facility ("Limestone F a c ility" ). Plaintiffs allege that the hiring decisions were in retaliation for prior complaints m ade by Plaintiffs concerning a supervisor's alleged "improper and unethical" practices. The e v i d e n tia r y submissions of the parties establish the following facts. A. F a c tu a l Background 1. C a m p 's and Martindale's Previous Employment with NaphCare and PHS

T h e Alabama Department of Corrections ("ADOC") contracts with private companies to provide medical and dental services to the state's inmate population. In July 2002, one su c h company, NaphCare, Inc. ("NaphCare"), hired Camp to provide dental services to in m a te s at the Limestone and St. Clair Correctional facilities in Alabama. (Camp. Aff. ¶ 5, F eb . 4, 2009 ("Camp Aff. I") (Ex. A to Pls.' Summ. J. Br.).) In February 2003, NaphCare h ire d Martindale to work as a dental assistant at the Limestone Facility. (Martindale Aff. ¶ 3 , Feb. 5, 2009 ("Martindale Aff. I") (Ex. B to Pls.' Summ. J. Br.).) Upon replacing N a p h C a re as the state's contractor in November 2003, Prison Health Services, Inc. ("PHS")

2

h ire d both Camp and Martindale to continue providing dental services at the Limestone F a c ility. (Camp Aff. I ¶ 5; Martindale Aff. I ¶ 3.)2 W h ile employed by PHS at the Limestone Facility, Camp and Martindale in d e p e n d en tly filed complaints against the Director of Dental Services, Dr. David Michael W e st ("West"). Camp sent a letter to PHS's Regional Medical Director and the

C o m m issio n er of the ADOC on December 11, 2003. (Letter from Camp to Dr. Will Mosier, D e c . 11, 2003 ("Camp letter") (Ex. 1 to Camp Aff. I).) He sent a formal complaint to the B o a rd of Dental Examiners of Alabama ("Dental Board") on December 17, 2003 (Complaint f ro m Camp to the Dental Board, Dec. 17, 2003. ("Camp complaint") (Ex. 2 to Camp. Aff. I).) Camp's letter and complaint stated that West used "brutal and painful" methods for the p u r p o s e of reducing demand for dental services, that West did not properly sterilize eq u ipm en t, and that West failed to maintain adequate supplies for the site. (Camp letter; C a m p complaint.) Martindale's complaint ­ addressed to the Dental Board on January 2, 2 0 0 4 ­ discussed a specific incident during which West allegedly insisted upon using u n s te riliz e d equipment. (Complaint from Martindale to the Dental Board, Jan. 2, 2004 (" M a rtin d a le complaint") (Ex. 1 to Martindale Aff. I).) West was ultimately sanctioned by

It is unclear whether Camp and Martindale worked as employees of PHS, or as independent contractors of PHS. Although the evidence shows that Camp would have been an independent contractor had he been retained by CMS (Meeker Aff. ¶ 6 (Ex. A to CMS Summ. J. Br.); Ray Dep. 12 (Ex. F to CMS Summ. J. Br.)), there is no evidence establishing that Camp and/or Martindale were independent contractors when they worked for PHS. Both Camp's and Martindale's affidavits state that they were employees. (Camp Aff. ¶ 3, Mar. 9, 2009 ("Camp Aff. II") (Ex. D to Pls.' Resp. Br.); Martindale Aff. ¶ 3, Mar. 10, 2009 ("Martindale Aff. II") (Ex. C to Pls.' Resp. Br.).) Thus, the court proceeds under the assumption that both Camp and Martindale were employees of PHS when the alleged protected speech occurred.

2

3

th e Dental Board for "fail[ure] to meet or comply with the current recommendations of the C e n te rs for Disease Control and Prevention's Recommended Infection-Control Practices for D e n tis try." (Dental Board Am. Order, Sept. 8, 2005 (Ex. 4 to Camp Aff. I).) L e ss than one month after filing the complaints, Ferrell, who was at that time a R e g io n a l Vice President for PHS (Martindale Dep. 78 (Ex. J to CMS Summ. J. Br.)), notified C am p that his job had been terminated. (Camp Aff. I ¶ 11.) Ferrell claims that the te rm in a tio n was based on Camp's failure to abide by company policy and failure to work the re q u is ite hours. (See West Dep. 203 (Ex. 11 to ADOC Defs.' Summ. J. Br. (stating that West rep o rted to Ferrell that Camp was not fulfilling his time obligations).) Ferrell was, however, a w a re of Camp's complaints at the time. When asked whether she "didn't like" that Camp w rote a letter to the ADOC about violations of clinical procedure, Ferrell responded: "I don't lik e that as a regional vice president that I was shown a letter of complaints in front of my c lien t." (Ferrell Dep. 219 (Ex. J to Pls.' Summ. J. Br.).) Camp claims that Ferrell told him th a t the reason for his termination was his "failure to follow policies and procedures and not f o llo w in g [the] chain of command." (Camp Dep. 212, Nov. 21, 2008 ("Camp Dep. I") (Ex. H to CMS Summ. J. Br.).) On December 13, 2004, Ferrell discharged Martindale for allegedly falsifying her time re c o rd s . (Martindale Dep. 241.)

4

2.

C a m p 's Application with CMS

O n November 1, 2007, CMS contracted with the ADOC to provide healthcare services f o r the Alabama prison system. (Linton Aff. ¶ 3 (Ex. B to CMS Summ. J. Br.).) The ADOCC M S contract grants the ADOC the authority to reject personnel proposed by CMS. S p e c if ic a lly, the contract states, "The ADOC reserves the right to reject any CMS personnel . . . . Any such rejections shall not be unreasonably exercised by the ADOC." (Health S e rv ic e s Agreement between the ADOC and CMS, Nov. 1, 2007 ("ADOC-CMS contract") (E x . 24 to Linton Dep., Sept. 11, 2008 ("Linton Dep. I") (Ex. C to CMS Summ. J. Br.)).) In S e p te m b e r 2007, after receiving notification of the ADOC's intent to contract with CMS, C M S set about hiring "approximately 543 individuals." (Linton Aff. ¶ 3.) CMS retains p h ys ic ia n s, dentists, and "other medical specialists" as independent contractors, not e m p lo ye e s . (Meeker Aff. ¶ 6; Ray Dep. 12.) C a m p submitted his application for a dental position with CMS on October 10, 2007 (C am p application, Oct. 10, 2007 (Ex. 1 to Camp Dep. I)), and interviewed with the state's D e n tal Director Dr. Mark King ("King") on October 12, 2007. (King Dep. 12, 46 (Ex. E to C M S Summ. J. Br.).) After the interview, King forwarded "a favorable report" of Camp to C M S ' s Dental Recruiter Christine Ray ("Ray"). (King Dep. 50.) According to Ray, King " a p p ro v e d [Camp] and wanted [her] to move forward with a contract." (Ray Dep. 25.) On October 15, 2007, Larry Linton ("Linton"), CMS's Regional Vice President, re c eiv e d an email from Ray requesting Linton's permission to extend an offer to Camp. (Ray

5

D e p . 27; Linton Dep. I 185; email from Ray to Linton, Oct. 15, 2007, 3:29 p.m. (Ex. 21 to L in t o n Dep.).) Two hours before receiving Ray's email, Linton received an email from West sta tin g : I received an e-mail from Mark [King] about a future hire at Limestone ­ L a rr y Camp. This is the guy who wrote everyone from the commissioner down to stir up tro u b le for PHS. I guarantee you he will not work an 8 hour day consistently. T h e Board believed his crap against me. No one else did! (E m a il from West to Linton, Oct. 15, 2007, 1:19 p.m. (Ex. 105 to Linton Dep., Oct. 17, 2008 (" L in to n Dep. II") (Ex. D to CMS Summ. J. Br.).) Linton subsequently emailed Naglich, F errell, and Brandon Kinard of the ADOC, asking for their views on Camp: "I heard Dr. C a m p has a history in Alabama. He wants to work for us at Limestone ­ any guidance?" ( E m a il from Linton to Naglich, Ferrell, and Kinard, Oct. 15, 2007, 5:16 p.m. (Ex. 21 to L in to n Dep. II).) Ferrell, who, having formerly worked with Camp and Martindale at PHS, h a d become the ADOC's Medical Systems Administrator (Ferrell Dep. 13 (Ex. M to CMS S u m m . J. Br.)), responded to Linton's email, writing "Absolutely not!" and "This is the one w h o had us all before the State Dental Board [w/]r/t Dr. Mike West." (Email from Ferrell to Linton, Naglich, and Kinard, Oct. 16, 2007, 8:50 a.m. (Ex. 21 to Linton Dep. I.); email f ro m Ferrell to Linton, Oct. 16, 2007, 8:55 a.m. (Ex. 21 to Linton Dep. I.).) When asked for th e basis of her email to Linton, Ferrell testified during her deposition that "Dr. Camp had a n issue with his timekeeping previously; Dr. Camp did not work well with his professional a s s o c ia te s ; he did not take instruction well; and Dr. Camp was an independent operator." 6

( F e r re ll Dep. 218 (Ex. 5 to ADOC Defs.' Summ J. Br.).) After receiving Ferrell's emails, L in to n requested that Ray "not continue [to] pursue Dr. Camp." (Email from Linton to Ray, O ct. 16, 2007, 10:07 a.m. (Ex. 21 to Linton Dep. I).) Naglich, the ADOC's Associate Commissioner of Health Services (Naglich Dep. 38 (E x . L to CMS Summ. J. Br.)), responded to Linton's email on October 26, 2007, stating that it was "[n]ot in our best interest" to hire Camp. (Email from Naglich to Linton, Oct. 26, 2 0 0 7 , 4:31 p.m. (Ex. R to Pls.' Summ. J. Br.).) Subsequently, Linton had a conversation with N a g lich , during which Naglich discussed Camp's alleged "time and attendance issues" while e m p lo ye d at PHS. (Linton Dep. I 99, 329, 341-43.) At the time she made the

re c o m m e n d a tio n not to hire Camp, Naglich had never personally worked with or supervised C a m p and had no personal knowledge of any complaints filed against him. (Naglich Dep. 2 0 -2 2 (Ex. D to Pls.' Summ. J. Br.).) She was, however, aware of the letter that Camp had se n t to the ADOC commissioner and that a complaint had been filed against Dr. West. (N a g lich Dep. 100-101, 104 (Ex. D to Pls.' Summ. J. Br.).) According to Naglich, the basis f o r her recommendation not to hire Camp was a prior conversation with PHS's chief o p e ra tin g officer, during which Naglich learned that Camp had been terminated by PHS for f a ilu re to work the required hours and for "fraudulent reporting of hours." (Naglich Dep. 969 7 , 99-100, 178-79 (Ex. L to CMS Summ. J. Br.).) Linton asserts that the final decision re g a rd in g Camp's employment was made after hearing from Naglich. (Linton Dep. I 329, 3 4 1 -4 3 ; see also Linton Dep. II 114 (Ex. M to Pls.' Summ. J. Br.) ("[I]f the client doesn't

7

w a n t to hire someone, . . . then we won't hire someone . . . .").) Ray notified Camp of the d ec isio n not to hire him in late October. (Camp Dep. I 251-52.) Camp contends that he contacted Allen to report his concerns that the decision not to h ire him at the Limestone Facility was in retaliation for his complaint against West. (Camp A f f . ¶ 25 3 ; Naglich Dep. 193 (Ex. D to Pls.' Summ. J. Br.).) Allen notified Naglich of C a m p ' s allegations (Naglich Dep. 193-94 (Ex. D to Pls.' Summ. J. Br.)), and Naglich re sp o n d e d by stating that she would have the site reviewed and look into any grievances or co m p lain ts (Naglich Dep. 194 (Ex. D to Pls.' Summ. J. Br.)). U p o n learning of Camp's complaint to Allen, Linton sent an email to his supervisor sta tin g , "One candidate ­ Camp ­ has a history and is not allowed back by ADOC. This is a good thing as he is bad news administratively. He thinks nothing of going around us to the c o m m is s io n e r and has recently done so. Smart commissioner, foolish him." (Email from L in to n to J. M. Courtney, Jan. 5, 2008, 1:20 p.m. (Ex. V to Pls.' Summ. J. Br.).) 3. M a r tin d a le 's Application with CMS

In late October 2007, Martindale interviewed for a dental assistant position with D e b b ie Hunt Vaughn, the Health Services Administrator at the Limestone Facility. (Vaughn D e p . 47 (Ex. G to CMS Summ. J. Br.).) Martindale claims that Vaughn offered her the p o sitio n during the interview (Martindale Dep. 101); however, Vaughn asserts that she did n o t have the power to offer Martindale the job at that point because she was not the ultimate

The ADOC defendants' motion to strike paragraph 25 of Camp's affidavit is addressed in section (IV)(B)(2)(c)(iii) n. 8, infra.

3

8

d e c is io n m a k e r. (Vaughn Dep. 15-16.) Further, Vaughn maintains that she could not offer th e job "for sure" because she did not know the start date at the time of the interview. (V au g h n Dep. 48, 112.) The decision not to hire Martindale was made after Linton's conversation with N a g lic h regarding Camp. Naglich, who had never worked with Martindale, brought up M a rtin d a le 's name during this conversation, mentioning that she had also been let go from P H S due to "time and attendance" issues. (Linton Dep. I 99; Naglich Dep. 26 (Ex. D to Pls.' S u m m . J. Br.).) After this conversation, Linton contacted Vaughn and told her that CMS w o u ld not retain Martindale. (Linton Dep. I 98-99.) B. P r o c e d u r a l Background P la in tif f s filed their Complaint on March 27, 2008 (Doc. # 2) and an Amended C o m p la in t on November 10, 2008. (Doc. # 37.) Plaintiffs' Amended Complaint alleges: (1) 4 2 U.S.C. § 1983 First Amendment retaliation against all Defendants, (2) tortious interferen c e with business and employment relations against the ADOC defendants, (3) fraud a g a in st CMS, (4) slander per se against Naglich, (5) the tort of outrage against all D e f en d a n ts , (6) negligent and/or wanton supervision and retention against CMS, (7) wanton s u p e r v is io n and retention against Naglich, (8) wanton supervision and retention against A lle n , and (9) civil conspiracy against CMS, Ferrell, and Naglich.

9

P lain tiff s moved for summary judgment on Camp's § 1983 claims against all D e f en d a n ts .4 CMS and the ADOC defendants subsequently moved for summary judgment o n all Plaintiffs' claims. (Docs. # 71, 74.) I I I . STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m atter of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed. R. Civ. P. Rule 56(c) (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v an t is entitled to judgment as a matter of law."). The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of [the record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by

Because CMS's motion for summary judgment on both Camp's and Martindale's claims will be granted, Plaintiffs' motion for summary judgment on Camp's § 1983 claim against CMS will not be reached. Furthermore, to the extent the ADOC defendants' motion for summary judgment is denied, genuine issues of material fact exist. Therefore, Plaintiffs' motion for summary judgment on Camp's § 1983 claims against the ADOC defendants is not reached.

4

10

s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x Corp., 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary ju d g m e n t is properly made and supported, an opposing party may not rely merely on a lleg a tio n s or denials in its own pleading; rather, its response must . . . set out specific facts s h o w in g a genuine issue for trial."). What is material is determined by the substantive law a p p l i c a b le to the case. Celotex Corp., 477 U.S. at 248; Lofton v. Sec'y of the Dep't of C h i ld r e n & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary ju d g m e n t." ). Furthermore, "[t]he mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (p e r curiam) (internal quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (to establish a genuine issue of material fact, the nonmoving party must produce evidence

11

s u c h that a reasonable trier of fact could return a verdict in his favor). However, if the e v id e n c e on which the nonmoving party relies, "is merely colorable, or is not significantly p ro b a tiv e , summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986) (citations omitted). "A mere `scintilla' of evidence supporting the [ n o n m o v a n t's ] position will not suffice; there must be enough of a showing that the [trier of f a ct] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1 9 9 0 ) (citing Anderson, 477 U.S.), and the nonmoving party "must do more than simply s h o w that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. C o . v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Conclusory allegations based on s u b je c tiv e beliefs are likewise insufficient to create a genuine issue of material fact and do n o t suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1 5 6 4 n.6 (11th Cir. 1997) (per curiam) (A plaintiff's "conclusory assertions . . . in the a b se n c e of supporting evidence, are insufficient to withstand summary judgment."). Hence, w h e n a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will b e a r the burden of proof at trial, summary judgment is due to be granted in favor of the m o v in g party. Celotex Corp., 477 U.S. at 323 ("[F]ailure of proof concerning an essential e le m e n t of the nonmoving party's case necessarily renders all other facts immaterial."). Thus, in cases where the evidence before the court is admissible on its face or can be red u ce d to admissible form and indicates there is no genuine issue of material fact, and where

12

the party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex Corp., 477 U.S. at 323-24 (summary judgment appropriate w h e re pleadings, evidentiary materials and affidavits before the court show there is no g en u ine issue as to a requisite material fact). I V . DISCUSSION T h e parties bring cross-motions for summary judgment. Plaintiffs move for summary j u d g m e n t on Camp's § 1983 First Amendment retaliation claims; CMS and the ADOC d e f e n d a n t s move for summary judgment on all Plaintiffs' claims. A. P la in tiffs ' § 1983 Claim Against CMS S e c tio n 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, o r usage of any State . . . subjects, or causes to be subjected, any citizen of the U n ite d States . . . to the deprivation of any rights, privileges, or immunities s e c u re d by the Constitution and laws, shall be liable to the party injured in an a c tio n at law [or] a suit in equity . . . . 4 2 U.S.C. § 1983. Thus, to establish a claim under § 1983, Plaintiffs must show: (1) a v io la tio n of a constitutional right and (2) that the violation was committed by a person acting u n d e r color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). A d d r e ss e d as a threshold matter is CMS's argument that Plaintiffs' § 1983 First A m en d m en t retaliation claim against CMS fails as a matter of law under Monell v. D e p a rtm e n t of Social Services, 436 U.S. 658 (1978).

13

In Monell, the Supreme Court held that a state actor "cannot be held liable under § 1983 on a respondeat superior theory." 436 U.S. at 691. Instead, such liability must be p re d ic a te d on an official policy or custom. Id. at 694. In other words, a government entity m a y be held liable "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, in f lic ts the injury that the government as an entity is responsible under § 1983." Id. The E le v e n th Circuit has expanded this notion to include private entities. Buckner v. Toro, 116 F .3 d 450, 453 (11th Cir. 1997) ("[T]he Monell policy or custom requirement applies in suits a g a i n s t private entities performing functions traditionally within the exclusive prerogative o f the state, such as the provision of medical care to inmates."); see also Harvey v. Harvey, 9 4 9 F.2d 1127, 1129 (11th Cir. 1992) ("Monell involved a municipal corporation, but every circu it court to consider the issue has extended the holding to private corporations as well."). T h u s , to the extent CMS's liability is based solely on the actions of its employees ­ s p e c if ic a lly, the hiring decisions made by CMS employee Linton ­ Plaintiffs' § 1983 First A m e n d m e n t retaliation claim cannot stand. On the other hand, if there exists a genuine issue o f material fact as to the existence of an official policy or custom constituting "deliberate in d if f ere n c e" to the constitutional right at issue, or if an official "policymaker's" actions d e p riv e d Plaintiffs of their constitutional rights, summary judgment on this basis is in a p p ro p ria te . McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

14

T h e Eleventh Circuit has articulated three ways a plaintiff can meet his or her burden u n d er Monell. To survive summary judgment, a plaintiff must identify: (1) an official policy, (2 ) a settled custom, or (3) the actions of a "policymaker" that caused the alleged c o n s titu tio n a l violation. Garvie v. City of Ft. Walton Beach, 366 F.3d 1186, 1188 (11th Cir. 2 0 0 4 ). Plaintiffs allege all three. According to Plaintiffs, CMS's practice of acquiescing to the ADOC's hiring d e c is io n s caused the alleged constitutional violations. (See Pls.' Reply 5 (Doc. # 107)

( " C M S ' s policy and custom of blindly following the directives of the ADOC (even where th e directives are unlawful), which Linton complied with, renders CMS liable to Dr. Camp u n d e r § 1983.").) This "policy and custom" of following the ADOC's directives arises from C M S ' s contract with the ADOC, which gives the latter ultimate authority to reject candidates fo r employment. (See ADOC-CMS contract ("The ADOC reserves the right to reject any C M S personnel . . . ." ).) Plaintiffs assert that "but for" this policy and custom, CMS would h a v e hired Camp and Martindale. (See Pls.' Reply 4.) However, mere causation is

insu ff icien t to establish liability under Monell. Where the policy or custom in question is c o n stitu tio n a l on its face,5 Plaintiffs must show that the "facially valid action" ­ i.e., entering

There can be no doubt that the`contractual provision at issue here is constitutional on its face. The contract expressly states that the ADOC will not exercise its authority "unreasonably." (ADOCCMS contract.) Moreover, courts have long-recognized the unique circumstances surrounding prison administration. Washington v. Harper, 494 U.S. 210, 223 (1990); see also Evans v. Stephens, 407 F.3d 1272, 1289 (11th Cir. 2005) (en banc) (Carnes, J., concurring) ("[D]etention facility officials have a legal obligation to ensure, to the extent reasonably feasible, that their facilities are safe not only for those detained but also for those who work there and those who visit."). Safety concerns necessitate oversight with respect to who is hired to work in Alabama prisons.

5

15

i n to a contract that gives the ADOC ultimate hiring authority over medical and dental p e rso n n e l working in Alabama prisons ­ was "`taken with "deliberate indifference" as to its k n o w n or obvious consequences.'" McDowell, 392 F.3d at 1291 (quoting Bd. of County C o m m ' r s v. Brown, 520 U.S. 397, 407 (1997) (quoting City of Canton v. Harris, 489 U.S. 3 7 8 , 388 (1989))). In McDowell, the Eleventh Circuit held that the county's violation of a prisoner's c o n stitu tio n a l right to medical care was not a "highly predictable consequence" of the co u n ty's failure to provide an adequate budget for medical staff. 392 F.3d at 1292. In re a ch in g this conclusion, the court discussed the lack of evidence identifying a "pattern of in ju rie s." Id. at 1291. Without evidence of previous violations of federally protected rights, th e county "had no notice of the consequences" of its budgetary decision. Id. As in McDowell, the alleged constitutional violation in this case was not a "highly p re d ic ta b le consequence" of the policy at issue ­ the contractual provision giving the ADOC u ltim a te hiring authority. Here, Plaintiffs allege that in agreeing to the aforementioned c o n tra c tu a l provision, CMS was "deliberate[ly] indifferent" to the "known or obvious c o n s e q u e n c e s " that the ADOC could direct CMS to act unlawfully. (See Pls.' Reply 4.) H o w e v e r, Plaintiffs point to no evidence of past constitutional violations resulting from the p o lic y decision. See McDowell, 392 F.3d at 1291. The express language of the contract f u rth e r undermines Plaintiffs' contention that CMS had the requisite culpability in entering th e contract: The contract expressly limits the ADOC's ability to reject candidates for

16

e m p lo ym e n t by mandating that "[a]ny such rejections shall not be unreasonably exercised by th e ADOC." (ADOC-CMS contract.) Thus, Plaintiffs have failed to meet their burden of s h o w in g that there are genuine issues of material fact as to the existence of a policy or c u sto m giving rise to Monell liability. Plaintiffs claim, in the alternative, that CMS should be held liable for the u n c o n stitu tio n a l actions of its policymakers. As Plaintiffs contend, liability may also be im p o sed under Monell for the decisions or actions of policymakers within the organization. S e e Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) ("Monell's language makes c lea r that it expressly envisioned other officials `whose acts or edicts may fairly be said to re p re se n t official policy,' and whose decisions therefore may give rise to municipal liability u n d e r § 1983.") (quoting Monell, 436 U.S. at 694) (internal citation omitted). However, "liab ility attaches only where the decisionmaker possesses final authority to establish . . . p o lic y with respect to the action ordered." Id. at 481. Whether an official has final p o lic ym a k in g authority is a question of state law. Id. at 483. Plaintiffs claim that Linton is a policymaker under Alabama law because, as the R e g io n a l Vice President of CMS, he is in charge of managing the contract with the ADOC, a n d because his supervisors were not involved in the hiring decisions at issue. (Pls.' Resp. 1 5 -16 (Doc. # 91).) While Plaintiffs allege that Linton had authority in making hiring decisions, they do n o t allege that he had authority to determine policy with respect to these hiring decisions.

17

M o n e ll liability is predicated on the latter. While Linton manages the contract, there is no e v id e n c e that he was involved in negotiations relating to the contractual provisions at issue; n o r is there evidence that Linton had any authority to establish, or deviate from, employment p o lic y generally at CMS. Linton's authority to work with the ADOC in making hiring d e c is io n s is insufficient to show that he is a "final policymaker" within CMS. For the foregoing reasons, the court finds that there is no genuine issue of material fa ct as to whether CMS is liable under Monell, and therefore, CMS's motion for summary ju d g m e n t on Plaintiffs' § 1983 First Amendment retaliation claims is due to be granted. B. P lain tiffs' § 1983 Claims Against the ADOC Defendants T h e ADOC defendants contend that they are immune from suit in their individual c a p a c itie s under the doctrine of qualified immunity. Qualified immunity protects

g o v e r n m e n t officials performing discretionary functions from liability for civil damages, so lo n g as their conduct does not violate "`clearly established' statutory or constitutional rights o f which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 801 ( 1 9 8 2 ) . Before inquiring into the particular constitutional rights at issue, the court must d e te rm in e whether the officials have met their burden in establishing that "`[they were] a c tin g within the scope of [their] discretionary authority when the allegedly wrongful acts o c c u rre d .'" McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (quoting Lee v. F e r r a r o , 284 F.3d 1188, 1194 (11th Cir. 2002)). If the court finds that the officials were a c tin g within their discretionary authority, the burden shifts to the plaintiffs to show that the

18

d e f e n d a n ts are not entitled to qualified immunity. Id. (citing Lee, 284 F.3d at 1194). To m e e t their burden, Plaintiffs must satisfy both elements of the test laid out in Saucier v. Katz, 5 3 3 U.S. 194, 201 (2001). In Saucier, the United States Supreme Court mandated a two-step process for re so lv in g government officials' qualified immunity claims. 533 U.S. at 201. The Court held th a t the threshold question in qualified immunity cases is whether the facts, taken in the light m o s t favorable to the plaintiff, show the violation of a constitutional right. Id. Second, "if a violation could be made out," the court must determine whether the right at issue was " c le a rly established." Id. On reconsidering this stringent two-step process, the Supreme C o u rt in Pearson v. Callahan concluded that, "while the sequence set forth [in Saucier] is o f te n appropriate, it should no longer be regarded as mandatory." 129 S. Ct. 808, 818 (2 0 0 9 ). Instead, judges of the lower courts "should be permitted to exercise their sound d is c re tio n in deciding which of the two prongs of the qualified immunity analysis should be a d d re ss e d first in light of the circumstances in the particular case at hand." Id. 1. D isc re tio n a ry Authority

T h e first consideration is whether the ADOC defendants met their burden of showing th a t they were acting within their "discretionary authority" when the alleged constitutional v io la tio n s occurred. The proper inquiry is twofold: (1) whether the government employee w a s "performing a legitimate job-related function (that is, pursuing a job-related goal)" and (2 ) whether the government employee, in pursuit of this legitimate job-related function, used

19

" m e a n s that were within his power to utilize." Holloman v. Harland, 370 F.3d 1252, 1265 (11 th Cir. 2004). W ith respect to Allen, the alleged constitutional violations concern his "ratification" o f the hiring decisions and his alleged failure to investigate Camp's complaints. As the C o m m is s io n e r, Allen heads the ADOC and exerts "independent direction, supervision and c o n t ro l ." Ala. Code § 14-1-1.3 (1975). Thus, the hiring decisions and any alleged failure to investigate said hiring decisions fall squarely within Allen's "legitimate job description." H o l l o m a n , 370 F.3d at 1266. Similarly, the means used in executing these functions, i.e., d is p a tc h in g subordinates to investigate complaints and otherwise communicating with other A D O C and CMS employees, do not fall outside Allen's discretionary authority. See id. at 1 2 6 7 . Accordingly, the court finds that Allen has met his burden of establishing that he was a c tin g within the scope of his discretionary authority when the alleged unconstitutional acts o c c u rr e d . Naglich and Ferrell likewise have met their burden. Naglich, as Associate

C o m m iss io n e r of Health Services, is in charge of "every aspect" of the ADOC's health s e rv ic e s program. (Allen Dep. 21 (Ex. 3 to ADOC Defs.' Summ. J. Br.).) Ferrell, as the A D O C 's Medical Services Administrator, is "part of a team that oversees" the provision of m ed ic a l and dental services to Alabama state prisons. (Naglich Dep. 35-36 (Ex. 4 to ADOC D e f s.' Summ. J. Br.).) Providing recommendations ­ or as Plaintiffs contend, making the u ltim a te decision ­ as to who is and is not hired to work as medical providers in Alabama

20

sta te prisons ­ the crux of Plaintiffs' constitutional claims against Naglich and Ferrell ­ is a "legitimate job-related function." Holloman, 370 F.3d at 1266. By communicating these re c o m m e n d a tio n s and/or hiring decisions to CMS employees, Naglich and Ferrell used the re a s o n a b le means at their disposal in executing their legitimate job functions. Id. at 1265. 2. C o n s titu tio n a l Violation

T h e burden then shifts to Plaintiffs, who must show the existence of genuine issues o f material fact as to whether the ADOC defendants violated Plaintiffs' constitutional rights. S a u c ie r, 533 U.S. at 201. Because the government has an interest in "promoting the ef ficien cy of the public services it performs through its employees," government employers a r e afforded more discretion in regulating or prohibiting the speech of their employees. P ick e rin g v. Bd. of Educ. of Township High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 5 6 8 (1968); Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007). A public employer, s u c h as the ADOC, may have important reasons for regulating speech ­ in the form of an a d v e rs e employment action such as termination, failure to promote, or failure to hire ­ that d o not apply in the private citizen context. Thus, Plaintiffs' burden depends on whether they a c te d as public employees or private citizens when engaging in the speech at issue. Plaintiffs assert that their complaints were made while working as employees of a p r i v a te organization, PHS, and that they should therefore be treated as private citizens for p u rp o s e s of their First Amendment retaliation claim. The ADOC defendants, on the other h a n d , contend that the Supreme Court's decision in Board of County Commissioners,

21

W a b a u n s e e County, Kansas v. Umbehr ­ equating government contractors to government e m p lo ye e s for purposes of First Amendment retaliation claims ­ requires the court to apply th e public employees test. 518 U.S. 668, 678-79 (1996). The issue in Umbehr was "whether, and to what extent, the First Amendment protects in d e p e n d en t contractors from the termination of at-will government contracts in retaliation f o r their exercise of the freedom of speech." Id. at 670. In finding that the public employee te st of Pickering should apply, the court looked to the "closeness" of the Plaintiff contractor a n d the government. Id. at 680. According to the Court, "Independent contractors appear t o us to lie somewhere between the case of government employees, who have the closest r e l a t i o n s h ip with the government, and our other unconstitutional conditions precedents, w h ic h involve persons with less close relationships with the government." Id. Thus, the re le v a n t inquiry in this case concerns the relationship between Plaintiffs and the state of A la b a m a . Plaintiffs had a sufficiently close and dependent relationship with the government s u c h that they should be considered public employees for the purpose of their First A m e n d m e n t retaliation claims. Although Plaintiffs were not in a direct contractual

re latio n sh ip with the ADOC, they worked for PHS (an ADOC contractor), they worked in the Alabama state prisons on Alabama state prisoners, and they were subject to the ADOC's h irin g decisions. Furthermore, when asked whether "the rules that apply to providing patient c a re differ in the correctional setting than in the private setting," Camp testified that the

22

s e rv ic e s, security, scheduling, and administrative procedures differ in a correctional setting. (C a m p Dep. I 98-99.) While they may have received their paychecks from PHS, Plaintiffs c le a rly worked within the confines of the Alabama prison system. For these reasons, the c o u rt applies the "public employee" test.6 T o state a retaliation claim, a public employee must show: 1) "that the speech can be f a irly characterized as relating to a matter of public concern, 2) that her interests as a citizen o u tw e ig h the interests of the State as an employer, and 3) that the speech played a substantial o r motivating role in the government's decision to take an adverse employment action." A k in s v. Fulton, 420 F.3d 1293, 1303 (11th Cir. 2005). If the plaintiff establishes the first th re e elements, the burden "shifts to the employer to show by a preponderance of the e v id e n c e that it would have made the same decision even in the absence of the protected s p e e ch ." Cook v. Gwinnett County Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). "The f irst two steps are questions of law; the final two steps are `questions of fact designed to d e te rm in e whether the alleged adverse employment action was in retaliation for the protected s p e e ch .'" Id. (quoting Anderson v. Burke County, Ga., 239 F.3d 1216, 1219-20 (11th Cir. 2 0 0 1 )) .

To the extent Plaintiffs have met their burden under the public employee test, they necessarily would have met their burden under the less-stringent private employee test. To state a retaliation claim, a private citizen must only establish: (1) that his or her "speech or act was constitutionally protected"; (2) "that the defendant's retaliatory conduct adversely affected the protected speech"; and (3) "that there is a causal connection between the retaliatory actions and the adverse effect on speech." Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).

6

23

a.

C itiz e n Speaking on a Matter of Public Concern

T h e first prong of the public employee test concerns whether the public employee was s p e a k in g as a citizen on a matter of public concern. Akins, 420 F.3d at 1303. Whether an e m p lo ye e 's speech addresses a matter of public concern is determined by the "content, form, a n d context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U .S . 138, 147-48 (1983). "Public concern" is defined as speech that "`relate[s] to a matter o f political, social, or other concern to the community.'" Akins, 240 F.3d at 1304 (quoting W a tk in s v. Bowden, 105 F.3d 1344, 1352 (11th Cir. 1997)). Because "`an employee's speech w ill rarely be entirely private or entirely public,'" it is protected so long as the "main thrust" o f the speech is on a matter of public concern. Id. (quoting Morgan v. Ford, 6 F.3d 750, 755 (11 th Cir. 1993)). T h e ADOC defendants contend that the real motivation behind Camp's complaints w a s his dissatisfaction with West's leadership and concern over pay. (ADOC Defs.' Summ. J . Br. 55.) Camp's letter to PHS and the ADOC begins by addressing the "[c]urrent sh o rtc o m in g s in supply, equipment, lab/prosthetic support and personnel [that] are adversely a f f e c tin g the quality and quantity of dental health care available to the inmate population in th e state system." He goes on to describe West's "[f]ailure of leadership," giving specific e x a m p le s of allegedly unsanitary and brutal practices. Camp then discusses the staff s h o rta g e s at the Limestone Facility and his unwillingness to accept a pay reduction offered b y West. He ends the letter by stating that "[c]urrent dental conditions within [the ADOC]

24

a re not conducive to attract and retain quality personnel and I will soon leave if conditions d o not change." (Camp letter (Ex. 1 to Camp Aff. I).) Camp does, to some extent, incorporate personal employment grievances into his le tte r; however, the court finds that the "main thrust" of the speech relates to a matter of p u b lic concern ­ the health of Alabama inmates and the public at large. Both Camp and M a rtin d a le raise concerns about the Director of Dental Services' allegedly unsanitary and c ru e l practices. Notably, both Camp and Martindale detail West's allege use of unsterilized e q u ip m e n t. According to the testimony by Dr. Janine Jason, such practices significantly in c re a s e the risk of transmitting HIV among prison inmates and the public as a whole. (See Ja so n Dep. 281-82 (Ex. B to Pls.' Reply Br.) (stating that the risk of HIV transmission "is o v e r 37 times greater" if the guidelines are not followed).) Certainly, a dentist's alleged f a ilu re to comply with the Centers for Disease Control's Recommended Infection-Control P ra c tic e s is a matter of public concern. (See Dental Board Am. Order (stating that Dr. West w a s sanctioned for failing to comply with these guidelines); see also Cook, 414 F.3d at 1319 (" In various contexts, we have made it clear that speech relating to the safety of the public in v o lv e s a matter of public concern.").) This does not end the inquiry, however. In Garcetti v. Ceballos, the Supreme Court lim ite d the constitutional protection afforded government employees by holding that the First A m e n d m e n t does not protect an employee speaking as part of his or her official job duties. 5 4 7 U.S. 410, 423 (2006). In that case, a deputy district attorney filed a § 1983 claim for

25

F irs t Amendment retaliation, alleging that he suffered an adverse employment action after w ritin g a memorandum that recommended dismissal of a case on the basis of government m i s c o n d u c t. Id. at 414-15. The Supreme Court, in a 5-4 opinion, found that Garcetti had a c te d "pursuant to his duties as a calendar deputy." Id. at 421. In writing the memorandum, th e deputy district attorney was merely conducting his "daily professional activities" and p e rf o rm in g the "tasks he was paid to perform," id. at 422, with the result that his speech was n o t protected. The ADOC defendants contend that Plaintiffs merely reported that which they had an o b l ig a t io n to report, and, as a result, are not entitled to First Amendment protection under G a rc e tti. The ADOC defendants offer Camp's testimony as evidence that he had an official d u ty to report misconduct to the Dental Board. (See Camp Dep. I 178 (Ex. 1 to ADOC Defs.' S u m m . J. Br.) (stating that Camp believed it was his professional obligation as a licensed d e n tist to report such "egregious" acts to the Dental Board). However, Camp states in his a f f id a v it that he also communicated his concerns to the then-Commissioner of the ADOC, M r. Donal Campbell ("Campbell"). In fact, Camp sent a carbon copy of the letter to C a m p b e ll. (Camp letter (Ex. 1 to Camp Aff. I).) The ADOC defendants offer no evidence o f Camp's professional obligation to report such conduct to the ADOC Commissioner. R e g a rd in g Martindale's speech, the only evidence that Martindale had a professional o b lig a tio n to report misconduct to the Dental Board is her deposition testimony in which she s ta te s that she felt she had an obligation to report misconduct. (Martindale Dep. 210-11 (Ex.

26

2 to ADOC Defs.' Summ. J. Br.).) A "feeling" of obligation to report misconduct does not n e c e s s a rily equate to a "professional duty" to do so. However, "[t]hat the plaintiffs had no affirmative duty to go outside the formal chain o f command . . . does not convert their speech to that of a private citizen." Akins v. Fulton C o u n ty , Ga., 278 F. App'x 964, 971 (11th Cir. 2008). As the Supreme Court has held: The proper inquiry is a practical one. Formal job descriptions often bear little re se m b la n c e to the duties an employee actually is expected to perform, and the lis tin g of a given task in an employee's written job description is neither n e c e ss a ry nor sufficient to demonstrate that conducting the task is within the s c o p e of the employee's professional duties. Garcetti, 547 U.S. at 424-25 (emphasis added). Thus, while relevant, the formally adopted p o lic ie s and procedures are not determinative. In Akins, the plaintiffs, ex-employees in a c o u n ty's purchasing department, went outside the chain of command to report irregularities in the bidding process. 278 F. App'x at 970-71. In holding that the plaintiffs spoke as public e m p lo ye e s rather than as private citizens, the court noted that the plaintiffs were ultimately c o n c ern e d with the "in-house procedure," i.e., complying with the departments "basic in s tru c tio n s to bidders." Id. at 971. Here, on the other hand, Plaintiffs' complaints have m o re to do with prisoner care than the integrity of company policies. Thus, Plaintiffs were a c tin g as private citizens when they complained outside the "chain of command." Moreover, the court is not convinced that Camp's communications made pursuant to a general policy requiring that dentists report misconduct to PHS and the Dental Board ­ i.e., " in sid e the chain of command" ­ are sufficient to bring Camp's letter and complaint within

27

th e ambit of unprotected speech. Unlike the plaintiff in Garcetti, Camp was not engaged in " d a ily professional activity" when he made the complaints. Writing disposition memoranda w a s part of the job Garcetti "was paid to do"; Camp was hired to provide dental services to A lab a m a inmates, not issue reports of dental practices. In articulating the policy behind its n e w bright-line rule, the Supreme Court in Garcetti stated that "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any lib e r tie s the employee might have enjoyed as a private citizen[; i]t simply reflects the exercise o f employer control over what the employer itself has commissioned or created." 547 U.S. a t 421-22. The speech at issue in this case does not "owe[] its existence" to Camp's and M artin d ale's professional obligations; instead, concern over the standard of dental care p ro v id e d to Alabama inmates appears to be the basis for the speech. Cf. Hartwell v. City of M o n t g o m e r y , 487 F. Supp. 2d 1313, 1325 (M.D. Ala. 2007) (finding that the plaintiff's c o m p la in t was protected under the First Amendment because reporting a co-worker for v i o la tin g a department tattoo policy was not part of the plaintiff's "official duties"). Thus, P lain tiff s spoke as citizens on a matter of public concern when making the complaints to P H S , the Dental Board, and the ADOC. b. B a la n cin g the Interests of the Citizen and the State

T h e next determination is whether Plaintiffs' "interests as . . . citizen[s] outweigh the in te re sts of the State as an employer." Akins, 420 F.3d at 1303. This balance requires that

28

th e court take "full consideration of the government's interest in the effective and efficient f u lf illm e n t of its responsibilities to the public." Connick, 461 U.S. at 150. A s discussed above, Plaintiffs' interests relate to the health and treatment of Alabama in m a te s. Protecting those who report government wrongdoing is a "core concern" of the F i r s t Amendment. Akins, 420 F.3d at 1304. In contrast, the government's interest in p re v e n tin g this type of speech is low. As the Eleventh Circuit held in Akins, speech of this k in d "bring[s] the alleged wrongful practices to light and lead[s] to more efficient provision o f public services." Id. Thus, the court finds that Plaintiffs' interests as citizens in making th e complaints outweigh the interests of the government in preventing this type of speech. c. C a u s a tio n

T h e third prong of the public employee First Amendment retaliation test requires P la in tif f s to prove that "the speech played a substantial or motivating role in the g o v e rn m e n t's decision to take an adverse employment action." Akins, 420 F.3d at 1303. If P lain tiff s establish the first three prongs, the burden shifts to the ADOC defendants to e sta b li s h that they would have made the same decisions even absent Plaintiffs' protected s p e e ch ­ i.e., their complaints about West. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 4 2 9 U.S. 274, 287 (1977); Cook, 414 F.3d at 1318. While the first two elements are q u e stio n s of law, "[t]he third and fourth elements of the . . . test are questions of fact d e sig n e d to determine whether a retaliatory motive was the legal cause of the challenged

29

e m p lo ym e n t decision." Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1564 (1 1 th Cir. 1995). i. F e rr e ll

C a m p ' s claim against Ferrell rests on several emails between employees of CMS and th e ADOC. After interviewing for the position at CMS with King on October 12, 2007, King fo rw ard ed a "favorable report" of Camp to recruiter Ray. Ray promptly emailed CMS's R e g io n a l Vice President Linton for permission to hire Camp. Linton, having previously re c eiv e d a cautionary email from West, emailed Naglich, Ferrell, and Brandon Kinard of the A D O C , asking for their views on hiring Camp. Ferrell ­ who had a history with Camp and M a rtin d a le at PHS ­ responded to Linton's email with two consecutive emails stating, " A b s o lutel y not!" and "This is the one who had us all before the State Dental Board [ re g a rd in g ] Dr. Mike West." When asked for the basis of her emails to Linton, Ferrell te stif ie d during her deposition that in addition to timekeeping issues, Camp "was an in d e p e n d en t operator." Further corroborating a retaliatory motive is Camp's testimony that F e rre ll told him that he was terminated from PHS for "failure to follow policies and p ro c e d u re s and not following [the] chain of command." (Camp Dep. I 212.) This evidence c re a te s a genuine issue of material fact that Camp's protected speech served as the impetus f o r Ferrell's recommendation not to hire him. The ADOC defendants claim that Ferrell's email did not cause Camp not to be hired. S p e c if ic a lly, the ADOC defendants claim that Ferrell did not have the authority to make final

30

h irin g decisions, and that Linton was aware that only Naglich (or the warden) had this a u th o rity. (See Naglich Dep. 152-53 (Ex. L to CMS Summ. J. Br.).) However, after re c e iv in g Ferrell's emails, Linton requested that Ray "not continue [to] pursue Dr. Camp." M o re o v e r, after receiving Ferrell's email, Linton sent an email to West stating that CMS w o u ld not be hiring Camp, and thanked him for the "heads up." This evidence is sufficient to establish a genuine issue of material fact that Ferrell's email, and thus Camp's speech, was a "substantial or motivating factor" behind the decision not to hire Camp. Therefore, the A D O C defendants' motion for summary judgment on Camp's retaliation claim against F e rr e ll is due to be denied on this basis. Martindale has not provided sufficient evidence to meet her burden under the third p ro n g of the public employee test with respect to her retaliation claim against Ferrell. F e rre ll's emails to Linton do not mention Martindale by name. Plaintiffs contend that the A D O C defendants treated Camp and Martindale "as one," and, therefore, that "the retaliatory m o tiv e s detailed in the emails above regarding Dr. Camp apply equally to Ms. Martindale." (P ls .' Resp. 13.) However, even if the court finds a genuine issue of material fact as to the e x is te n c e of a retaliatory motive, causation is still absent: Martindale must show that the p ro te c te d speech was a motivating factor in the decision not to hire her; however, there is no e v id e n c e beyond the relationships of the parties that Ferrell played a part in this decision. M a rtin d a le alleges that her offer of employment was "rescinded" after Linton spoke with N a g li c h ­ not Ferrell ­ about Martindale's alleged time issues while working at PHS.

31

A c c o rd in g ly, the ADOC defendants' motion for summary judgment on Martindale's § 1983 c la im against Ferrell is due to be granted. ii. N a g lic h

Naglich responded to Linton's inquiry about Camp several days after Ferrell, stating th a t it was "[n]ot in our best interest" to hire Camp. At the time she made this

re c o m m e n d a tio n , Naglich had never personally worked with or supervised Camp and had no p e rs o n a l knowledge of any complaints filed against him. She was, however, aware that C a m p had complained about the lack of proper supplies and the mistreatment of prisoners, a n d she had been shown Camp's 2003 letter to the ADOC Commissioner. Naglich claims th a t she had information regarding Camp's alleged "time and attendance issues," and that this serv ed as her motivation for the email recommending that CMS not hire Camp. However, a s Plaintiffs contend, the undisputed evidence shows that the ADOC did not object to the h irin g of medical personnel with more suspect backgrounds. In fact, according to Linton, a s of the time of his deposition on October 17, 2008, the ADOC had not declined any a p p lic a tio n s other than that of Camp. (Linton Dep. II 41 (Ex. M to Pls.' Summ. J. Br.).) The A D O C , and Naglich in particular, did not object to the hiring of another doctor (CMS A n s w e r ¶ 77 (Doc. # 41)) whose medical licence had been revoked by the Virginia Board of M e d ic in e . (Va. Bd. of Medicine Order (Ex. W to Pls.' Summ. J. Br.).) This particular doctor h a d a long history of "unethical and unprofessional conduct," including, among other things, im p ro p e rly prescribing narcotics, maintaining inappropriate sexual relationships with

32

p a tie n ts , unlawfully self-medicating, and failing to maintain adequate records documenting m e d ic a l treatment. (Va. Bd. of Medicine Order.) Thus, while time and attendance issues m ay have been a factor in Naglich's decision, a reasonable jury could find that this was mere p re te x t for retaliation, and that Camp's complaints served as a "substantial or motivating f a c to r" for Naglich's email, and, thus, for the final decision not to hire Camp.7 The ADOC d e f e n d a n ts' motion for summary judgment on Camp's retaliation claim against Naglich is th e re f o re due to be denied on this basis. The court finds that Martindale has likewise provided sufficient evidence to meet her b u rd e n under the third prong of the public employee test with respect to her retaliation claim a g a in s t Naglich. Although the above-referenced emails from Naglich do not mention M a rtin d a le by name, the evidence suggests that Naglich's statements about Martindale c a u se d the adverse employment action. Linton testified that Martindale "was offered the p o sitio n with CMS" and that the offer was rescinded based on Linton's conversation with N a g lic h . (Linton Dep. II 106-07 (Ex. M to Pls.' Summ. J. Br.).) By her own admission, N a g lic h did not have to "okay" decisions to hire dental assistants. Thus, by bringing up M a rtin d a le, "sua sponte" in a conversation about Camp, Naglich demonstrated her retaliatory

Plaintiffs claim that Naglich merely "ratified" the decision not to hire Camp. The ADOC defendants assert that she was the one who actually rejected the application. The court finds that she played a significant role in the decision not to hire Camp. Although Linton had already instructed Ray "not to pursue" Camp, Linton asserts that the final decision regarding Camp's employment was not made until after he heard from Naglich.

7

33

m o tiv e s against Martindale. For these reasons, the ADOC defendants' motion for summary ju d g m e n t on Martindale's retaliation claim against Naglich is due to be denied. iii. A lle n

P la in tif f s do not claim that Allen had any input in the decision not to hire Camp or M a rtin d a le ; rather, Plaintiffs contend that Allen failed to investigate claims of retaliation and th a t he is liable as a supervisor. Camp testified in his affidavit that he contacted Allen to r e p o r t his concerns that the hiring decision was in retaliation for his complaints against W e st.8 Allen notified Naglich of Camp's allegations, and Naglich responded by stating that s h e would have the site reviewed and look into any grievances or complaints.

The ADOC defendants move to strike this paragraph (paragraph 25) from Camp's affidavit under the "sham affidavit" rule. (Doc. # 88.) A "sham affidavit" is one that flatly contradicts previous deposition testimony. Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). "An affidavit may only be disregarded as a sham `when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact . . . [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.'" Id. at 954 (quoting Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984)). Here, Camp's affidavit does not "flatly contradict" his deposition testimony. Camp testified in his deposition that he "explained to [Allen] . . . . that [he] was concerned because [he] had learned that Laura Ferrell was working for AODC [sic] and that it may be a continuation or some form of retaliation given the personalities from [his] past ­ past experience." (Camp Dep. 67-68.) When asked whether he used the word "retaliation," Camp responded that he could not remember the exact word he used in his conversation with Allen. (Camp Dep. 68.) Camp later asserted in his affidavit that he contacted Allen to report his concerns that the hiring decision was in retaliation for his complaints against West. (Camp Aff. I ¶ 25.) That Camp could not remember whether he used the exact word "retaliation" during his deposition does not foreclose the possibility that he used other words that conveyed the same meaning. "A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence." Tippens, 805 F.2d at 953. "Variations in a witness's testimony and any failure of memory throughout the course of discovery create an issue of credibility" and should be resolved by a trier of fact. Id.at 954. For these reasons, the ADOC defendants' motion to strike paragraph 25 of Camp's affidavit is unpersuasive.

8

34

P la in t i f f s cite Lewis v. Smith to support their contention that Allen is liable as a s u p e rv is o r . 855 F.2d 736 (11th Cir. 1988). According to Lewis, "[s]upervisory liability u n d e r section 1983 may be shown by either the supervisor's personal participation in the acts th a t comprise the constitutional violation or the existence of a causal connection linking the s u p e rv is o r's actions with the violation." Id. at 738. Plaintiffs do not present evidence s h o w in g that Allen personally participated in the decision not to hire Camp or Martindale; n o r do they present evidence of a "causal connection linking" Allen's actions with the hiring d e c is io n s . The final decision not to hire Camp was made before Camp contacted Allen with h is concerns, and Martindale presents no evidence that she ever contacted Allen or that Allen w a s personally involved in the decision not to hire her. Thus, Plaintiffs have failed to meet th e ir burden on the issue of causation with respect to their retaliation claims against Allen. F o r these reasons, the ADOC defendants' motion for summary judgment on Camp's and M a rtin d a le 's retaliation claims against Allen is due to be granted. 3. C le a rly Established Constitutional Right9

H a v in g addressed the first part of the Saucier test ­ whether there was a constitutional v io l a tio n ­ the final issue is whether the law was "clearly established" at the time of the a lle g e d constitutional violations. 533 U.S. at 199. There can be no serious dispute that the

Because the following motions are due to be granted: (1) CMS's motion for summary judgment on both plaintiffs' § 1983 claims, (2) the ADOC defendants' motion for summary judgment on Martindale's § 1983 claims against Ferrell and Allen, and (3) the ADOC defendants' motion for summary judgment on Camp's § 1983 claim against Allen, the issue of whether the law was clearly established is only addressed with respect to Camp's § 1983 claims against Ferrell and Naglich and Martindale's § 1983 claim against Naglich.

9

35

la w prohibiting state officials from retaliating against employees who engage in protected s p e e ch is "clearly established." See Walker v. Schwalbe, 112 F.3d 1127, 1133 (11th Cir. 1 9 9 7 ) (citing Pickering, 391 U.S. 563 and Bryson v. City of Waycross, 888 F.2d 1562, 1566 (1 1 th Cir. 1989) for the proposition that "in 1991, clearly established law informed r e a s o n a b l e government officials that [the plaintiff] could not be punished for his First A m e n d m e n t speech"). 4. E lev e n th Amendment Immunity

T h e ADOC defendants make the additional argument that they are entitled to im m u n ity under the Eleventh Amendment for all claims asserted against them in their official c a p a c itie s. However, "the Eleventh Amendment does not prohibit a plaintiff from suing state o f f icia ls in their official capacities for prospective injunctive relief and costs associated with th a t relief." Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989). Therefore, the ADOC d e f en d a n ts ' Eleventh Amendment immunity argument fails as to the claims for injunctive r e lie f . C. S ta te -L a w Claims 1. T o rtio u s Interference with Business and Employment Relations

T h e ADOC defendants move for summary judgment on Camp and Martindale's s e c o n d cause of action: Tortious interference with Plaintiffs' business and employment re la tio n s with CMS. To state a claim for tortious interference, a plaintiff must establish the fo llo w ing elements: "1) the existence of a contract or business relation; 2) the defendant's

36

k n o w le d g e of the contract or business relation; 3) intentional interference by the defendant w ith the contract or business relation; and 4) damage to the plaintiff as a result of the d e f en d a n t's interference." Pegram v. Hebding, 667 So. 2d 696, 701 (Ala. 1995). The p la in tif f must also demonstrate that the defendant was a "third party" or "stranger" to the c o n tra c t with which he or she allegedly interfered. Parsons v. Aaron, 849 So.2d 932, 946 (A la . 2002) (internal citations omitted). Here, the ADOC defendants contend that they were not "strangers" to the alleged c o n tra c tu a l relationship, and, thus, cannot be held liable for any