Collins v. Gusman

Filing 18

ORDER AND REASONS - granting defendant's motion 11 for summary judgment on plaintiff's First Amendment retaliation claim. The Court declines to exercise its supplemental jurisdiction as to plaintiff's state law claims and dismisses the state law claims without prejudice.. Signed by Chief Judge Sarah S. Vance on 3/30/15. (jjs) Modified on 3/30/2015 (jjs).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRYAN COLLINS

CIVIL ACTION

Plaintiff,
NO: 14-234
VERSUS
MARLIN GUSMAN, INDIVIDUALLY
AND AS SHERIFF FOR THE PARISH
OF ORLEANS, STATE OF
LOUISIANA

SECTION: R(2)

Defendant.

ORDER
Before the Court is defendant Marlin Gusman's motion for
summary judgment.1

The Court grants defendant's motion as to

plaintiff's federal civil rights claim because the undisputed
evidence fails to show a violation of plaintiff's First Amendment
rights.

The Court declines to exercise supplemental jurisdiction

over plaintiff's state-law claims and dismisses the state-law
claims without prejudice.

I.

Background
The Orleans Parish Sheriff's Office hired plaintiff as a

deputy sheriff in 2009 and assigned him to guard duty at Orleans
Parish Prison.2

The Sheriff's Office provided plaintiff with a

1

R. Doc. 11.

2

R. Doc. 13 at 1.

copy of the department's Policies and Procedures Manual and the
Criminal Sheriff's Handbook which prohibit, inter alia, both the
release of non-public information without prior authorization and
the possession of a mobile phone in jail facilities.3

Plaintiff

signed a form acknowledging his receipt and review of the manual
and

handbook

on

September

8,

2009

and

March

23,

2012,

respectively.4
On June 6, 2013, an inmate at the Conchetta facility of
Orleans Parish Prison stabbed another inmate approximately twenty
times.5

The Sheriff's Office's Special Operations Department was

assigned to investigate the crime, and they identified inmate
Edward Dean as the culprit.

On June 11, 2013, Dean was arrested

and charged with aggravated battery.6
Plaintiff was on duty on June 6, 2013 when inmate Dean
committed the crime at the Conchetta facility.

Plaintiff took a

picture of the crime scene with his cell phone and, displeased with
the Sheriff's Office's charging decision, provided the photograph
to the Southern Poverty Law Center.7

3

R. Doc. 11-4 at 1-2.

4

R. Doc. 11-6 and 11-7.

5

R. Doc. 13 at 2.

6

R. Doc. 11-1 at 1.

7

R. Doc. 13 at 2.
2

The photograph later appeared

on the Times-Picayune's website Nola.com.8

Plaintiff asserts that

he shared the crime scene photograph because his superiors failed
to

address

his

complaints

regarding

"poor

prison

conditions,

inadequate facilities, staffing and supervision" at Orleans Parish
Prison.9
Once Orleans Parish Sheriff's Office officials became aware
that a photograph of the crime scene had been provided to the
media, they launched an investigation to determine the source of
the picture.10

Sheriff's Office officials identified plaintiff as

the source of the leak and, on or about October 22, 2013, told
plaintiff that he could not return to work.11

Shortly thereafter

plaintiff resigned from his position and brought this suit under 28
U.S.C. § 1983 claiming that defendant retaliated against plaintiff
in violation of his First Amendment rights. Plaintiff also asserts
three causes of action under Louisiana law.

Defendant now moves

for summary judgment on all of plaintiff's claims.12

II.

Legal Standard

8

Plaintiff admits that he is responsible for leaking the
picture. R. Doc. 13 at 5.
9

Id.

10

R. Doc. 11-1 at 2.

11

R. Doc. 13 at 3.

12

R. Doc. 11.
3

Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the

Court

considers

"all

of

the

evidence

in

the

record

but

refrain[s] from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co.,

530

inferences

F.3d
are

395,
drawn

398–99
in

(5th

favor

Cir.

of

the

2008).

All

nonmoving

reasonable
party,

but

"unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to either
support or defeat a motion for summary judgment." Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)(internal
quotations omitted); see also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would entitle it to a directed verdict
if the evidence went uncontroverted at trial." Int'l Shortstop,
Inc.

v.

Rally's,

Inc.,

939

F.2d

1257,

1264–65

(5th

Cir.

1991)(internal quotations omitted). The nonmoving party can then
defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or

4

“showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075
("Rule 56 'mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.'" (quoting Celotex, 477 U.S. at
322)).

III. Discussion
A.

Plaintiff's First Amendment Retaliation Claim

It is well-established that the government may not condition
public employment on a basis that violates the First Amendment
5

rights of its employees.
(1983).

Connick v. Myers, 461 U.S. 138, 142

Government employees "have not relinquished the First

Amendment rights they would otherwise enjoy as citizens to comment
on matters of public interest."

United States v. Nat'l Treasury

Employees Union, 513 U.S. 454, 465 (1995) (internal quotations
omitted).

At the same time, the government is entitled to manage

employees, including hiring, firing, and disciplining them, like
other employers.

"[T]he government as employer indeed has far

broader powers than does the government as sovereign."
Churchill, 511 U.S. 661, 671 (1994).

Waters v.

To determine the validity of

restraints on public employees' speech, the Court must "arrive at
a balance between the interest of the [employee], as a citizen, in
commenting upon matters of public concerns and the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees."

Pickering v. Bd. of

Educ. of Township High School Dist., 391 U.S. 563, 568 (1968).
To

determine

whether

a

public

employer's

action

has

impermissibly infringed upon an employee's free speech rights,
courts in the Fifth Circuit employ a five step analysis.

Winn v.

New Orleans City, Civ. A. No. 12-1307, 2014 WL 790870, at *3 (E.D.
La. Feb. 26, 2014) (citing Gibson v. Kilpatrick, 734 F.3d 395, 400
(5th Cir. 2013)). Thus, to establish a First Amendment retaliatory
discharge claim, a plaintiff must prove:
(1) that he suffered an adverse employment decision; (2)
that he spoke as a private citizen and not as a
6

government employee pursuant to official duty; (3) that
the speech involved a matter of public concern; (4) that
his interest in speaking outweighed the government's
interest in the efficient provision of public services;
and (5) that the speech precipitated the adverse
employment decision. Id.
1. Whether Plaintiff Suffered an Adverse Employment Decision
"Adverse employment decisions include discharges, demotions,
refusals to hire, refusals to promote, and reprimands."

Juarez v.

Aguilar, 666 F.3d 325, 332 (5th Cir. 2011) (internal quotations
omitted).

Plaintiff submits evidence that he was discharged on or

about October 23, 2013.13

Thus, plaintiff has satisfied the first

element.
2. Whether Plaintiff Spoke as a Citizen or Government Employee
The Supreme Court opinion in Garcetti v. Ceballos, 547 U.S.
410 (2006), provides the starting point for analysis under the
second prong. Ceballos worked as a deputy district attorney in the
Los Angeles County District Attorney's Office.

When he discovered

what he believed to be inaccuracies in an affidavit supporting a
search warrant, he wrote a memo to his supervisor suggesting that
the DA's office not prosecute the crime.

The supervisor responded

by transferring Ceballas and refusing to promote him.

Ceballas

sued, arguing that his memo was protected speech under the First
Amendment.
Ceballos'

13

Reversing the Ninth Circuit and ultimately rejecting
claim,

the

Supreme

Court

R. Doc. 13-1 at 3.
7

stated

that

"when

public

employees make statements pursuant to their official duties, the
employees
purposes,

are
and

not
the

speaking

as

citizens

Constitution

does

communications from employer discipline."

for

First

Amendment

not

insulate

their

Garcetti, 547 U.S. at

421.
Here, plaintiff's "speech" was the sharing of a photograph
with a third-party, the Southern Poverty Law Center.14

This speech

is not only unrelated to plaintiff's official duties as a prison
guard at Orleans Parish Prison, but the taking and sharing of the
photograph was also prohibited by sheriff's department policy.15
Moreover, although plaintiff took the picture while he was on-duty,
plaintiff's speech--the sharing of the photograph to the Southern
Poverty

Law

Center--occurred

outside

of

the

workplace.

Accordingly, the Court finds that plaintiff spoke as a citizen
rather than pursuant to his official duties.

See Lane v. Franks,

134 S. Ct. 2369, 2379 (2014) ("The critical question under Garcetti
is whether the speech at issue is itself ordinarily within the

14

"While photographs are not the classic 'speech' that the
First Amendment safeguards, they nonetheless fall within the
ambit of the First Amendment if they communicate some idea."
S.N.B. v. Pearland Indep. Sch. Dist., Civ. A. No. 13-441, 2014 WL
2207864, at *11 (S.D. Tex. May 28, 2014) (internal citations
omitted).
15

R. Doc. 11-4 ("The Orleans Parish Sheriff's Office
strictly prohibits the release of non-public data without express
authorization . . . . The Orleans Parish Sheriff's Office
strictly prohibits the possession of any mobile phone by a deputy
in the jail facilities.").
8

scope of an employee's duties, not whether it merely concerns those
duties."); Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008)
(when "a public employee takes his job concerns to persons outside
the work-place in addition to raising them up the chain of command
at his workplace, then those external communications are ordinarily
not made as an employee, but as a citizen") (citing Freitag v.
Ayers, 468 F.3d 528 (9th Cir. 2006)).
3. Whether Plaintiff's Speech Involved a Matter of Public
Concern
Whether speech involves a matter of public concern is a
question of law.
1991).

Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir.

A court answers this question by examining the content,

form, and context of the speech.
290, 295 (5th Cir. 2008).

Jordan v. Ector Cnty., 516 F.3d

Although this inquiry is necessarily

fact-specific, certain bright-line rules have emerged.
is

well-established

that

"public

employees'

speech

Indeed, it
reporting

official misconduct, wrongdoing, or malfeasance on the part of
public employees involves matters of public concern."
City of Dallas, 272 F.3d 730, 745 (5th Cir. 2001).

Branton v.
This is

especially true "when [the speech] concerns the operation of a
police department."

Brawner v. City of Richardson, Tex., 855 F.2d

187, 191-92 (5th Cir. 1988).
Here, plaintiff provided the Southern Poverty Law Center, and
eventually Nola.com, with pictures of a crime scene at Orleans
Parish Prison. Plaintiff contends that the picture was one of many
9

disclosures he made to the Southern Poverty Law Center regarding
"prison

conditions,

supervision,

all

of

inadequate
which

facilities,

resulted

in

staffing

inadequate

investigations" of inmate violence at the prison.16

or

and
no

It is well-

established that "the conditions in this Nation's prisons are a
matter that is both newsworthy and of great public importance."
Pell v. Procunier, 417 U.S. 817, 830 n.7 (1974).

See also Freitag,

468 F.3d at 545 ("[T]he proper administration of our prisons
generally is undoubtedly of great public interest . . . .").
Accordingly, the Court finds that plaintiff's distribution of the
crime scene photograph relates to a matter of public concern.
4. Whether Plaintiff's Interest in Speaking Outweighed the
Sheriff's Office's Interests as an Employer
The

determination

of

whether

an

employee's

interest

in

speaking on a matter of public concern outweighs the government's
interest in the efficient provision of public services, commonly
called Pickering balancing, is "legal in nature and [is] for the
court to resolve."

Branton, 272 F.3d at 739.

Even if a public

employee speaks as a citizen on a matter of public concern, his
speech is not per se protected by the First Amendment.
F.3d at 295.

Jordan, 516

This is because government employers enjoy "a

significant degree of control over their employees' words and
actions" to ensure to efficient provision of government services.

16

R. Doc. 13-1 at 2.
10

Garcetti, 547 U.S. at 418. The government employer's discretion is
not unbounded, however, as "the restrictions it imposes must be
directed at speech that has some potential to affect the entity's
operations."

Id.

Thus, courts must balance "the individual and

societal interests that are served when employees speak as citizens
on matters of public concern [with] the needs of government
employers' attempting to perform their important public functions."
Id. at 420.

Pertinent considerations in this balancing test

include "whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on close working
relationships

for

which

personal

loyalty

and

confidence

are

necessary, or impedes the performance of the speaker's duties or
interferes with the regular operation of the enterprise."
v. McPherson, 483 U.S. 378, 388 (1987).

Rankin

A court must also give

substantial weight to a government employer's interest in enforcing
office policy.

See Connick, 461 U.S. at 153 n.14.

Furthermore,

"because police departments function as paramilitary organizations
charged with maintaining public safety and order, they are given
more latitude in their decisions regarding discipline and personnel
regulations than an ordinary employer."

Nixon v. City of Houston,

511 F.3d 494, 498 (5th Cir. 2007) (internal quotations omitted).
At the outset, the Court acknowledges the substantial interest
both

the

plaintiff

plaintiff's speech.

and

the

public

have

in

the

content

of

As discussed above, plaintiff's leak of the

11

crime scene photograph addressed a matter of public concern, namely
prison

conditions

at

Orleans

Parish

Prison.

Although

First

Amendment protection is not dependent upon the "social worth" of
the ideas expressed, "the nature of the communication is relevant
to the balancing of interest of the employee as a citizen against
the interest of the governmental unit." Williams v. Bd. of Regents
of Univ. Sys. of Ga., 629 F.2d 993, 1003 (5th Cir. 1980).

Here,

plaintiff's First Amendment interest is especially strong because
plaintiff's employment with the Sheriff's Office enabled him to
witness the crime.

See Lane, 134 S. Ct. at 2379 ("[S]peech by

public employees on subject matter related to their employment
holds

special

value

precisely

because

those

employees

gain

knowledge of matters of public concern through their employment.").
Given

the

substantial

First

Amendment

interest

at

stake,

a

heightened showing of government interest is required to justify
plaintiff's termination.

Lane, 134 S. Ct. at 2381 ("We have also

cautioned, however, that a stronger showing of government interests
may be necessary if the employee's speech more substantially
involves

matters

of

public

concern.")

(internal

quotations

omitted).
In this case, plaintiff's interest in commenting on matters of
public

concern,

although

significant,

is

outweighed

by

the

government's interest in the efficient provision of government
services.

As an initial matter, plaintiff's speech was made

12

possible by his violation of the Sheriff's Office's prohibition on
the possession of cell phones within the prison.17
distribution

of

the

photograph

without

prior

Plaintiff's
authorization

constituted a second violation of departmental policy.18

These

violations were especially egregious given that the photograph at
issue depicted evidence and the crime scene in a then-open criminal
prosecution.

Cf. Lane, 134 S. Ct. at 2381 (finding government

interest lacking because "[t]here is no evidence, for example, that
. . . Lane unnecessarily disclosed any sensitive, confidential, or
privileged information").

See also Delano v. City of Buffalo, No.

10-CV-9228S, 2014 WL 4273340, at *8 (W.D.N.Y. Aug. 29, 2014)
("[T]he release of [crime scene] photographs without authorization
both violated internal rules and would clearly have a disruptive
effect on the espirit de corps of the police force.").

The

Sheriff's Office's interest in addressing these violations of
official policy is substantial, Connick, 461 U.S. at 153 n.14, and
sanctioning the Sheriff's Office for enforcing its policies would
undermine the office's ability to maintain employee discipline.
Rankin, 483 U.S. at 388.

17

These considerations demand even more

R. Doc. 11-4 at 2.

18

Id. at 1 ("The Orleans Parish Sheriff's Office strictly
prohibits the release of non-public data without express
authorization. This policy exists because of the need to
maintain integrity of all criminal investigations conducted by
the Sheriff's Office and to protect the identity of victims and
witnesses until such time that the materials become discoverable
under the laws of the State of Louisiana.").
13

weight because of the prison setting in which the violations of
official policy occurred.

Bell v. Wolfish, 441 U.S. 520, 547

(1979) ("Prison administrators therefore should be accorded wideranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.").
The Sheriff's Office also produced uncontroverted evidence
that plaintiff's distribution of the photograph caused significant
disruption to Orleans Parish Prison operations.

Once prison

officials became aware that a photograph of the crime scene had
leaked

to

the

media,

the

Sheriff's

Office

was

forced

to

"reallocat[e] . . . limited and critical resources to conduct an
investigation into the unauthorized disclosure in order to protect
the integrity of this and future investigations."19
Office

also

plaintiff's
workplace

reasonably
violations

harmony

and

concluded
of

that

departmental

jeopardize

future

The Sheriff's

failure
policy

to

address

could

disrupt

investigations.

See

Connick, 461 U.S. at 168 ("[A]n employer need not wait until the
destruction of workplace relationships is manifest before taking
action."); Nixon, 511 F.3d at 499 ("Such . . . conduct smack[s] of
insubordination, and it is entirely reasonable for the [police
department] to predict that such insubordination and likely acts of
future insubordination would harm [the department's] ability to

19

R. Doc. 11-4 at 2.
14

maintain discipline and order in the department, morale within the
department, and close-working relationships between Nixon, his
fellow officers, and his supervisors."); Tedder v. Norman, 167 F.3d
1213, 1215 (8th Cir. 1999) (finding that police department's
interest in "preventing disruption" outweighs individual officer's
interest in speech).
In sum, the Court finds that plaintiff's speech violated
departmental

policy,

impaired

discipline

by

Sheriff's

Office

officials, and interfered with the regular operations of Orleans
Parish Prison.
interest

in

Thus, the Court holds that the Sheriff's Office's
the

efficient

provision

of

services

outweighs

plaintiff's interest in the speech and, therefore, that plaintiff's
distribution of the crime scene photograph is not protected by the
First Amendment.

In so concluding, the Court is

"mindful of the

paramilitary structure of the police department and the greater
latitude given their decisions regarding discipline and personnel
regulations."

Nixon, 511 F.3d at 494.

Because the Court finds

that plaintiff's speech is not protected by the First Amendment,
defendant's motion for summary judgment on plaintiff's federal
civil rights claim is granted.
B. Plaintiff's State Law Claims
The Court has determined that defendant is entitled to summary
judgment on plaintiff's only claim arising under federal law.
Defendant, however, also seeks summary judgment on plaintiff’s

15

claims arising under state law.

Thus, the Court must consider

whether to continue to exercise supplemental jurisdiction over
plaintiff’s remaining state-law claims.

See 28 U.S.C. § 1367.

A

district court may decline to exercise supplemental jurisdiction
if:
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c).
Court

must

also

In addition to the statutory factors, the

balance

the

factors

convenience, fairness, and comity.
F.3d 434, 446 (5th

other

Cir. 2002).

of

judicial

economy,

Smith v. Amedisys, Inc., 298

The Court has “wide discretion in

determining whether to retain supplemental jurisdiction over a
state law claim once all federal claims are dismissed.”
White, 996 F.2d 797, 799 (5th Cir. 1993).

Noble v.

Still, the “general

rule” is to decline to exercise jurisdiction over pendent state-law
claims when all federal claims have been eliminated prior to trial.
Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d
595, 602 (5th Cir. 2009).
Here, the Court has dismissed all the claims over which it had
original jurisdiction. Only state-law claims remain, and the Court
16

has no independent basis for jurisdiction over them. The Court has
not

yet

addressed

the

merits

of

these

claims,

and

as

they

exclusively involve issues of state law, principles of comity weigh
in favor of allowing a state forum to adjudicate them.

The Court

therefore finds that the rule counseling against the exercise of
supplemental jurisdiction over state-law claims when no federal
claims remain applies in this case, and it dismisses plaintiff’s
state-law claims without prejudice.

IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's motion
for summary judgment on plaintiff's First Amendment retaliation
claim.

The

Court

declines

to

exercise

its

supplemental

jurisdiction as to plaintiff's state law claims and dismisses the
state law claims without prejudice.

New Orleans, Louisiana, this 30th day of March, 2015.
___

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

17