Corkern v. Hammond City et al
Filing
80
ORDER AND REASONS granting in part and denying in part 63 Motion for Summary Judgment. Signed by Judge Jane Triche Milazzo. (ecm, )
Corkern v. Hammond City et al
Doc. 80
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VICTORIA A. CORKERN, ET AL.
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CIVIL ACTION NO. 11‐1828
Plaintiffs
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SECTION: H
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JUDGE JANE TRICHE MILAZZO
VERSUS
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MAGISTRATE: 5
HAMMOND CITY, ET AL.
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MAG. ALMA CHASEZ
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Defendants *
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ORDER AND REASONS
Before the Court is Defendant Mayson Foster's Motion for Summary Judgment. (Doc. 63.)
For the following reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs Victoria and Kenneth Corkern are married and jointly filed suit on July 28, 2011
against their employer, the City of Hammond ("City"), Hammond Police Chief Roddy Devall
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("Devall"), and the Mayor of the City of Hammond, Mayson Foster ("Foster"). Plaintiffs allege
gender and age discrimination, retaliation, violations of their constitutional right to freedom of
expression, and reprisal in violation of Louisiana Revised Statute Section 23:967.
Victoria Corkern ("Victoria") and Kenneth Corkern ("Kenneth") are both employed by the
City of Hammond, Louisiana Police Department. Victoria serves as a Lieutenant and Kenneth serves
as the Assistant Chief of Police. (Doc. 33 1‐2.) Plaintiffs allege that Chief Devall instituted a series
of retaliatory acts against them after Kenneth filed a formal complaint with the Hammond Fire and
Police Civil Service Board ("Board") on October 7, 2008. (Id. at 15‐16.) Plaintiffs allege that the
Mayor and City supported this systematic pattern and practice of illegal discrimination. (Id. at 95.)
All Defendants filed Motions to Sever, which were denied as moot after the First Amended
Complaint was filed on November 8, 2011. (Doc. 33.) Defendants City and Foster then filed a
Motion to Sever Claims Alleged in First Amended Complaint (Doc. 43), and also filed a Motion for
Partial Dismissal of First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on
December 6, 2011, (Doc. 44). Defendant Devall filed a separate Motion to Sever Claims Alleged in
the First Amended Complaint and a separate Motion for Partial Dismissal of First Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on December 7, 2011. (Doc. 47.)
Both Motions to Sever were denied on July 5, 2012. Defendants' Motions for Partial
Dismissal were granted in part regarding claims against individual defendants under Title VII, the
ADEA, and Louisiana Revised Statute Section 23:967, and denied in part with respect to whether
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any claims under La. R.S. § 23:967 were time‐barred. (Doc. 51.)
Defendant Foster moved for summary judgment on Plaintiffs' state and federal claims for
his alleged violation of their right to freedom of expression, and alternatively moved for partial
summary judgment on their individual capacity claims against him on December 31, 2012. (Doc.
63‐1.)
LEGAL STANDARD
Summary judgment is appropriate “[i]f the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c) (2012). A genuine issue of fact exists only “[i]f the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether the movant is entitled to summary judgment, the Court views facts
in the light most favorable to the nonmovant and draws all reasonable inferences in his favor.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528(5th Cir.1997). “If the moving party meets the
initial burden of showing that there is no genuine issue of material fact, the burden shifts to the
non‐moving party to produce evidence or designate specific facts showing the existence of a
genuine issue for trial.” Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th
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Cir.1995). Summary judgment is appropriate if the non‐movant “[f]ails to make a showing sufficient
to establish the existence of an element essential to that party's case....” Celotex Corp. v. Catrett,
477 U.S. 317,324 (1986). “In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the manner in which that
evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in
favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof
at trial. John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293,301 (5th Cir.2004)
(internal citations omitted). “We do not ... in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts.” Badon v. RJR Nabisco, Inc., 224 F.3d 382,394 (5th
Cir.2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069,1075 (5th Cir.1994)). Additionally, “[t]he
mere argued existence of a factual dispute will not defeat an otherwise properly supported
motion.” Boudreaux v. Banctec, Inc., 366F.Supp.2d 425, 430 (E.D.La.2005).
LAW AND ANALYSIS
I.
The Alleged Gag Order
Defendant Foster seeks summary judgment on Plaintiffs' state and federal claims
surrounding the gag order and its alleged violation of their freedom of expression. He asserts that
the uncontroverted summary judgment evidence shows that he neither issued nor approved any
order prohibiting or restricting plaintiff's from discussing their employment situation with anyone
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else. Foster provides an affidavit in which he denies ever issuing a gag order. Plaintiffs provide an
unofficial transcript of an administrative proceeding.1 The transcript reveals that Foster did
prohibit and/or restrict Plaintiffs from discussing their employment situation.
The only evidence Defendant has provided in support of his motion is an affidavit in which
he denies Plaintiffs' allegations that he issued or condoned a gag order regarding the details of the
IA investigation. It is beyond dispute that self‐serving affidavits, without more, cannot defeat a
properly supported motion for summary judgment. See DIRECTV, Inc. v. Budden, 420 F.3d 521, 531
(5th Cir.2005); United States v. Lawrence, 276 F.3d 193, 197 (5th Cir.2001). Because the record
before the Court reveals a genuine issue of fact as to whether Foster issued a gag order, summary
judgment must be denied.
II.
Qualified Immunity: Right of Intimate Association
A.
Arguments of the Parties
Defendant argues that he is entitled to qualified immunity regarding the alleged issuance
of a gag order in relation to Kenneth's claims. Defendant asserts that the right to be free of
retaliation based on your spouse's speech is not a clearly established right, and he is therefore
immune from suit regarding any alleged violation of such right.
Plaintiff argues that Defendant violated Kenneth's First Amendment rights of Free Speech
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While it wasn't an official transcript, the Court finds that the evidence submitted is
sufficiently reliable to raise a material issue of fact.
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and Association by the issuing a gag order, which constituted (a) an illegal prior
restraint on speech, (b) retaliation for exercising his right to free speech to comment on matters
of public concern and (c) interference with his constitutional right of association.
B.
Analysis
Section 1983 provides a cause of action for individuals who have been "deprived of any
rights, privileges, or immunities secured by the Constitution and the laws" of the United States by
a person or entity acting under the color of state law. 42 U.S.C. § 1983. Government officials who
perform discretionary functions are generally shielded from civil liability unless their conduct
violates clearly established statutory or constitutional rights. Wilson v. Layne, 526 U.S. 603, 609
(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (quotations omitted).
In assessing whether there is a clearly established statutory or constitutional right, courts
should look to whether the official's actions were objectively reasonable in light of legal rules that
were clearly established at the time the official acted. Anderson v. Creighton, 483 U.S. 635, 640
(1987) ("[t]he right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right"). Thus, the salient question is whether the state of the law at the
time the official acted gave the official fair warning that his or her alleged treatment of the plaintiff
was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). This inquiry is guided by whether
there was binding precedent clearly establishing the right. See Williams v. Ballard, 466 F.3d 330,
333 (5th Cir. 2006). If there is an absence of binding precedent, courts must "[d]etermine if other
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decisions at the time showed 'consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful.'" Id. (quoting McClendon v. City of
Columbia, 305 F.3d 314, 329 (5th Cir. 2002)). When resorting to the law of other circuits, a court
should find a "consensus of cases of persuasive authority" recognizing a right before reaching the
conclusion that "no reasonable officer would have believed that his or her actions were lawful."
McClendon, 305 F.3d at 329. In the end, not only must the courts have recognized the right, they
must have also define the right with a level of clarity sufficient to enable an officer to assess the
lawfulness of his conduct. Id. at 331.
In McClendon, the Fifth Circuit held that a plaintiff's "state‐created danger theory" was not
clearly established law, even though a number of other circuits had recognized the theory. Id. at
332. Because the circuits were not in agreement about the specific nature of the right, the Fifth
Circuit held that the public official was entitled to qualified immunity because there was no fair
warning that the official's conduct violated a right. Id. at 333. The court reasoned that the
"inconsistencies and uncertainties within the alleged consensus of other circuits could not have
allowed an officer within the Fifth Circuit to assess whether his or her conduct violated the right
in the absence of explicit guidance." Id.
Plaintiff cites one case, Adler v. Pataki, in which the Second Circuit recognized an
individual's right to be free from retaliation for the conduct of their spouse. 185 F.3d 35 (2d Cir
1999). District courts within the Second Circuit have recognized the right under this holding, but
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no other circuit court has recognized it, including the Fifth Circuit. The Court finds that this hardly
constitutes "a consensus of cases of persuasive authority" that allow this court determine that the
right to be free of retaliation for the conduct of one's spouse. Accordingly, since there is no binding
or persuasive authority that recognizes the right to be free from retaliation based on the conduct
of one's spouse, the state of the law in July of 2010 was not such that it would have given
Defendant "fair warning that his alleged treatment of the plaintiff was unconstitutional." Hope, 536
U.S. at 730. Since the right Plaintiff alleges Defendant violated was not clearly established in July
of 2010, Foster is entitled to qualified immunity.
Therefore, the Motion for Summary Judgment is granted as to Kenneth Corkern's claims
against Foster in his individual capacity, as Foster is entitled to qualified immunity.2
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The Court does not decide the issues of whether the alleged gag order constituted an illegal prior restraint
on speech and whether it infringed on Plaintiff’s right to intimate association. This court does not address
issues that were raised for the first time in an opposition to a motion for summary judgment. See S. Snow
Mfg. Co., Inc. v. SnoWizard Holdings, Inc., CIV.A. 06‐9170, 2013 WL 392582, at *16 (E.D. La. Jan. 31, 2013)
(when an issue was raised for the first time in an opposition the Court found that additional briefing by the
parties was appropriate). Since the issue of whether these theories should be considered new claims was
raised for the first time in Plaintiff’s opposition to Defendant’s motion and the parties have not sufficiently
briefed the issue.
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CONCLUSION
Before the Court is Defendant Mayson Foster's Motion for Summary Judgment (Doc. 63).
For the following reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART.
New Orleans, Louisiana on this 14th day of August, 2013.
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JANE TRICHE MILAZZO
UNITED STATES DISTRICT COURT JUDGE
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