Harris v. Tunica County, Mississippi
Filing
76
MEMORANDUM OPINION and ORDER granting in part 54 Motion to Dismiss. Signed by District Judge Michael P. Mills on 8/29/2016. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
RICO F. HARRIS
PLAINTIFF
v.
Civil Action No.: 3:14-cv-00218-MPM-SAA
TUNICA COUNTY, MISSISSIPPI
and CALVIN K. (“K.C.”) HAMP, SR.,
In his Individual Capacity
DEFENDANTS
MEMORANDUM OPINION AND ORDER PARTIALLY
GRANTING MOTION TO DISMISS
This matter comes before the Court on defendant Calvin K. Hamp, Sr.’s (“Sheriff
Hamp”) Motion to Dismiss (“the Motion”) [51][54]. Plaintiff Rico F. Harris (“Harris”) filed a
Response in Opposition (“the Response”) [63][64]. Thereafter, Sheriff Hamp filed a Reply to
Plaintiff’s Response (“the Reply”) [68]. The Court has considered the Motion, Response, and
Reply, as well as relevant case law and evidence, and is now prepared to rule.
Harris asserts claims against Tunica County, Mississippi, (“Tunica County”) and Sheriff
Hamp, in his individual capacity, based upon events giving rise to Harris’s termination from the
Tunica County Sheriff’s Department (“TCSD”). The Court previously considered Harris’s
claims against Tunica County in its Memorandum Opinion and Order Denying Motion for
Summary Judgment [75]. The Court now turns to Harris’s claims against Sheriff Hamp. In its
present posture, this case consists of the following claims by Harris against Sheriff Hamp: (1)
violation of free speech rights protected by the First Amendment and (2) malicious interference
with employment under state law. Having considered the arguments made by the parties and the
authorities cited therein, the Court finds that the Motion should be partially granted.
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I.
BACKGROUND
In 2005, the plaintiff, Rico F. Harris, was hired as a patrolman by TCSD. In August
2013, after a series of promotions, Harris became Captain of Investigations, the position he held
for the remainder of his employment with TCSD.
In 2011, Bernadette Logan (“Detective Logan”) was hired by TCSD as a patrol officer
and was thereafter assigned to the detective division. Harris contends Sheriff Hamp developed a
practice of providing Detective Logan and other female employees preferential treatment.
On May 11, 2013, TCSD was alerted to suspicious activity at an apartment occupied by
Rosemary Jones Brown. Harris and Detective Logan were both dispatched to the apartment
complex to investigate. The investigation quickly revealed that Brown was deceased and had
apparently been murdered. Physical evidence at the scene connected Gloria Logan, Detective
Logan’s mother, to the crime. Thus, Gloria Logan became the primary suspect in the case.
Upon becoming aware of her mother’s potential involvement, Detective Logan recused herself
from the case.
Thereafter, Harris voiced his concern to Sheriff Hamp, Commander Cedric Davis, and
Chief Deputy Randy Stewart that TCSD should not investigate the murder because there was a
clear conflict of interest, recommending that Sheriff Hamp refer the case to the Mississippi
Bureau of Investigation (“MBI”). Harris contends Sheriff Hamp informed him that TCSD would
not recuse itself because he did not believe a conflict of interest existed. In contrast, in his
deposition, Sheriff Hamp testified that he contacted MBI but was informed that MBI did not
have anyone available to investigate the case. However, Peter Clinton, the Lieutenant in charge
of the MBI Batesville District during May 2013, stated in an affidavit that MBI was never
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contacted concerning the case. Nevertheless, TCSD did not recuse, and Harris served as the lead
investigator on the case.
On the day of the murder, Harris called the District Attorney’s office and spoke with
Assistant District Attorney Rosharwin Williams to explain the situation. The District Attorney’s
office later recused itself from the case on April 11, 2014, citing a conflict of interest due to its
close working relationship with TCSD. However, Harris remained in contact with Williams
even after the District Attorney’s office recused itself, voicing his frustration that TCSD would
not refer the case to MBI.
Although Harris continued to handle the case, both he and Lieutenant William Mullen
(“Mullen”), who assisted with the investigation, believed Sheriff Hamp improperly hindered the
investigation. Harris claims that Sheriff Hamp prevented him from conducting necessary
interviews and did not allow him to visit the crime scene before it was cleaned. Harris and
Mullen both testified that they reported their concerns about Sheriff Hamp’s conduct to
Commander Davis on multiple occasions, but no responsive action was taken. Commander
Davis, however, denied that Harris or Mullen reported any concerns to him.
On or about April 14, 2014, Harris communicated with a member of the Attorney
General’s office, which had taken over the case after the District Attorney’s office recused. On
April 15, 2014, Harris personally met with a representative from the Attorney General’s office to
provide a briefing of the case and a copy of his case report. Later that day, Harris contacted
Tunica County Justice Court Judge Louise Linzy, who was scheduled to preside over Gloria
Logan’s initial appearance in the murder case, to express his concerns about the manner in which
the case had been handled. Judge Linzy thereafter contacted TCSD to report Harris’s call and
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was instructed to complete a written report. In her deposition, Judge Linzy testified that she did
not call TCSD to file a complaint but simply desired to obtain more details about the situation.
Also on April 15, 2014, Harris received notice from Commander Davis that he was being
transferred to the patrol division due to his failure to timely prepare the Brown murder case for
presentation to the grand jury in February. Harris contends his failure to complete the case
preparation was due to Sheriff Hamp’s interference with the investigation. On the following day,
April 16, 2014, Harris was placed on administrative leave pending an internal affairs
investigation pertaining to his conversation with Judge Linzy. On April 23, 2014, while on
administrative leave, Harris failed to honor a subpoena to appear in court regarding another
matter. Thereafter, on April 25, 2014, Harris received an Employment Dismissal, terminating
his employment with TCSD. The Employment Dismissal provided that Harris was terminated
for failure to timely prepare the murder case for presentation to the grand jury, inappropriate
contact with Judge Linzy, and failure to appear in court to honor a subpoena. Upon Harris’s
termination, Persundra Jones, a female, was promoted to Harris’s position. Shortly thereafter,
Harris filed this suit against Tunica County and Sheriff Hamp.
II.
CONCLUSIONS OF LAW
Sheriff Hamp has raised qualified immunity as a defense to Harris’s Section 1983 First
Amendment retaliation claim and, alternatively, argues that summary judgment is appropriate as
to that claim. Sheriff Hamp also argues that summary judgment is proper as to Harris’s state law
malicious interference with employment claim.
First Amendment retaliation claim:
The qualified immunity defense shields public officials from liability for civil damages
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
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which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, “[q]ualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about open legal questions.”
Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2071, 179 L.Ed.2d 1149 (2011). The defense
is broad, “provid[ing] ample protection to all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986).
“Once a defendant properly invokes the defense of qualified immunity, the plaintiff bears
the burden of proving that the defendant is not entitled to the doctrine’s protection.” Howell v.
Town of Ball, — F.3d —, 2016 WL 3595722, at *5 (5th Cir. 2016) (citing Michalik v. Hermann,
422 F.3d 252, 258 (5th Cir. 2005)). “To avoid dismissal, a plaintiff must plead specific facts,
which if true, would defeat qualified immunity.” Howard v. Tunica Cty., Miss., 2000 WL
33907689, at *3 (N.D. Miss. Aug. 8, 2000) (citing Wicks v. Miss. State Emp. Servs., 41 F.3d 991,
994-97 (5th Cir. 1995)). A public official is entitled to qualified immunity unless the plaintiff
establishes that “(1) the defendant violated the plaintiff’s constitutional rights and (2) the
defendant’s actions were objectively unreasonable in light of clearly established law at the time
of the violation.” Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (citing Freeman v. Gore,
483 F.3d 404, 410-11 (5th Cir. 2007)).
In the present case, once Sheriff Hamp raised the qualified immunity defense, the burden
then shifted to Harris to show (1) that Sheriff Hamp violated his constitutional rights and (2) that
Sheriff Hamp’s conduct was unreasonable in light of clearly established law. The Court
discussed in detail the potential violation of Harris’s First Amendment rights in its opinion
denying defendant Tunica County’s motion for summary judgment. Taking Harris’s allegations
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as true, a constitutional violation may very well have occurred. Nevertheless, the Court finds the
second prong of the qualified immunity analysis dispositive, as Sheriff Hamp’s conduct did not
violate law that was clearly established at the time.1
Under the second prong, “[a] defendant cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite that any reasonable official
in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard,
134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (citing Ashcroft, 563 U.S. at 741). “To be
clearly established, a right must be sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Taylor v. Barkes, 135 S.Ct. 2042, 2044,
192 L.Ed.2d 78 (2015). It is not required that there be a case directly on point, but “existing
precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft,
563 U.S. at 741.
The Supreme Court recently considered the qualified immunity issue in the First
Amendment retaliation context in Lane v. Franks, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014).
There, Lane, the plaintiff, alleged that he was terminated from his job as a public employee at
Central Alabama Community College (“CACC”) because of his testimony before a federal grand
jury detailing facts about corruption at CACC. Id. at 2375. Lane sued Franks, the CACC
president who made the termination decision. Id. at 2376. Franks raised the qualified immunity
defense, arguing that an employee’s right to provide subpoenaed testimony about workplace
information was not clearly established at the time. Id. at 2377. Although holding that Lane’s
speech was entitled to First Amendment protection, the Supreme Court sided with Franks on the
1
Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d
565 (2009).
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qualified immunity issue, recognizing that no cases concerning the protection of a public
employee’s testimony before a grand jury had been decided at the time Franks terminated Lane.
Id. at 2382. In its discussion, the Supreme Court emphasized that the Eleventh Circuit, the
circuit in which the underlying events took place, had considered similar cases but did not
provide a clear resolution to the issue. Id. Moreover, the Supreme Court rejected Lane’s
argument that precedent from two other circuits was sufficient to put Franks on notice that the
firing was unconstitutional. Id. Ultimately, the Court held that although circuit court decisions
had been issued on the topic, Lane could not show that the issue was “beyond debate.” Id.
The Fifth Circuit also recently addressed a factually similar case in Howell v. Town of
Ball, 2016 WL 3595722. In Howell, a former police officer for the town of Ball, Thomas
Howell, gained information that Ball’s mayor and police chief were involved in a scheme to
fraudulently obtain disaster recovery funds from FEMA. Id. at *1. Howell relayed this
information to FBI Agent Robert Deaton. Id. Howell later agreed to participate in the FBI’s
investigation into the matter by wearing a wire and secretly recording his conversations with the
mayor and the Ball employees involved in the fraudulent scheme. Id. The investigation
ultimately resulted in the mayor and four other Ball employees, including the police chief, being
indicted. Id. at *2. Because of his involvement in the investigation, Howell was harassed by the
new police chief, Daniel Caldwell, and the two parties engaged in a “heated discussion.” Id.
Thereafter, upon Caldwell’s recommendation, Ball’s Board of Aldermen conducted a hearing
regarding Howell’s employment status, which resulted in Howell’s termination. Id. Howell then
filed suit, alleging that Caldwell and the individual members of the board of aldermen violated
his First Amendment rights when they fired him for participating in an FBI investigation. Id.
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The Fifth Circuit held that the defendants were entitled to qualified immunity, providing
that “it was not clearly established whether [Howell’s] involvement in the FBI investigation was
protected under the First Amendment.” Id. at *5. In its opinion, the Fifth Circuit also
emphasized that up until Lane, which held that the First Amendment protects any
communication not made in furtherance of an employee’s ordinary job duties, the controlling
case on this issue was Garcetti v. Ceballos, which by its own admission, “did not articulate a
comprehensive framework for defining the scope of an employee’s duties in cases where there is
room for serious debate.” Id. at *6 (citing Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct.
1951, 164 L.Ed.2d 689 (2006)). In its discussion, the Fifth Circuit emphasized the lack of
precedent applying Garcetti to a case where a police officer engaged in outside communications
with another governmental agency in order to aid in an investigation. Id.
Similarly, this Court finds that Sheriff Hamp’s conduct did not violate clearly established
law. Harris was terminated in April 2014. The Supreme Court decided Lane v. Franks in June
2014. Because Harris was terminated before the Lane decision, Garcetti, a case where the
Supreme Court itself admitted that it had not provided a comprehensive framework for the
analysis in this area, was the most recent Supreme Court case on the issue at the time. Lane
further illustrates that the Supreme Court had not at that time established clear precedent
concerning the extent of a public employee’s protection when communicating about workplace
activities. In addition, Howell shows that the Fifth Circuit had not made clear the protection
afforded to an employee engaging in communications with another governmental agency. These
decisions provide insight into the unsettled nature of the law in this area at the time of Harris’s
termination and tend to show that the law was not clearly established.
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Although later decisions from the Supreme Court and the Fifth Circuit have addressed
and more fully developed the issue, when ruling on the qualified immunity issue, this Court is
bound to consider the state of the law at the time of the alleged violation—that is, when Sheriff
Hamp terminated Harris. As provided by the Supreme Court in Lane, the relevant inquiry is
whether the defendant could reasonably have believed, at the time he fired the plaintiff, that a
government employer could fire an employee on account of the conduct in which the plaintiff
engaged. Here, the Court finds that the relevant law did not preclude Sheriff Hamp from
believing he could legally fire Harris. Thus, the law was not clearly established at the time, and
Sheriff Hamp is entitled to qualified immunity.
Arguing in opposition, Harris asserts that “it is undisputed that the rights of public
employees to speak on matters of public concern has been clearly established for over fifty (50)
years.” This argument is not well taken. The Supreme Court has explicitly cautioned courts
against defining clearly established law “at a high level of generality.” City and Cty. of San
Francisco, Cal. v. Sheehan, 135 S.Ct. 1765, 1775-76, 191 L.Ed.2d 856 (2015); Brosseau v.
Haugen, 543 US. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 58 (2004) (“[T]his inquiry must be
undertaken in light of the specific context of the case, not as a broad general proposition.”).2
Relying on this extensive precedent, the Court rejects Harris’s proposed definition of the
right at issue, as it falls directly within the broad, generalized category against which the
Supreme Court has continuously cautioned. While the Court agrees that a public employee’s
right to speak on matters of public concern is well settled, Harris’s proposed definition is much
too broad for the qualified immunity inquiry. Certainly the Supreme Court would not have
2
See also Howell, 2016 WL 3595722, at *6 (finding insufficient the plaintiff’s definition of the
right at issue as simply “First Amendment” rights); Morgan v. Swanson, 755 F.3d 757, 760 (5th
Cir. 2014) (“A plaintiff does not overcome the qualified immunity defense by alleging the
violation of a right that is only defined at a high level of generality.”).
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recently considered Lane v. Franks, a case with similar facts, if the right at issue was as clear as
Harris suggests. The Court thus rejects Harris’s generalized definition and finds that Sheriff
Hamp is entitled to qualified immunity as to the First Amendment retaliation claim.3
Malicious interference with employment claim:
Summary judgment is proper “if 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). A genuine dispute as to a material fact exists “if 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, “[d]oubts are
to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in
favor of that party.” Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001). “If the
moving party meets the initial burden of showing there is no genuine issue of material fact, the
burden shifts to the nonmoving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial.” Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th
Cir. 2000) (citing Taylor v. Principal Fin. Group, Inc., 93 F.3d 115, 161 (5th Cir. 1996)).
However, the nonmoving party cannot defeat summary judgment by providing “conclusory
allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994)). If a reasonable jury could not return a verdict in favor of the
nonmoving party, summary judgment is proper. Id. (citing Anderson, 447 U.S. at 248).
3
Because it finds that Sheriff Hamp is entitled to qualified immunity as to the First Amendment
retaliation claim, the Court need not consider Sheriff Hamp’s alternative motion for summary
judgment regarding that claim.
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Under Mississippi law, a claim for malicious interference with employment is treated the
same as a claim for tortious interference with contract. Guest-White v. Checker Leasing, Inc.,
2016 WL 595407,at *5 (N.D. Miss. Feb. 11, 2016) (citing Roberson v. Winston Cty., Miss., 2002
WL 449667 (N.D. Miss. Mar. 4, 2002)). Tortious interference with contract is defined as
“malicious or intentional interference with a valid and enforceable contract by a third party
which causes one contracting party not to be able to perform and the failure to perform results in
a monetary loss for the other contracting party.” Courtney v. Glenn, 782 So.2d 162, 164-65
(Miss. Ct. App. 2000) (citing Cenac v. Murry, 609 So.2d 1257, 1268 (Miss. 1992)) (emphasis
added).4 In order to establish a tortious interference with contract claim, the plaintiff must show:
(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the
plaintiff in his lawful business; (3) that they were done with the unlawful purpose of causing
damage and loss, without right or justifiable cause (which constitutes malice); and (4) that actual
damage and loss resulted. Protective Serv. Life Ins. Co. v. Carter, 445 So.2d 215, 217 (Miss.
1983).
While Mississippi law recognizes malicious interference with employment claims, “a
person occupying a position of responsibility on behalf of another is privileged, within the scope
of that responsibility and absent bad faith, to interfere with the principal’s contractual
relationship with a third person.” Guest-White, 2016 WL 595407, at *5 (citing Morrison v. Miss.
Enter. for Tech., Inc., 798 So.2d 567, 574 (Miss. Ct. App. 2001)). More specifically, a
supervisor is privileged to interfere with an employee’s employment contract unless the
4
In this context, malice is “the intentional doing of a harmful act without justification or excuse,
or stated differently, the willful violation of a known right.” Cenac, 609 So.2d at 1268 (citing
Mid-Continent Tel. Corp. Home Tel. Co., 319 F. Supp. 1176, 1199-1200 (N.D. Miss. 1970)).
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supervisor’s actions are taken in bad faith. Wigginton v. Washington Cty., Miss., 2013 WL
3157565, at *9 (N.D. Miss. June 20, 2013) (citing Morrison, 798 So.2d at 574).
Here, Sheriff Hamp occupied a position of responsibility as to Harris’s employment.
Thus, Sheriff Hamp’s actions were privileged so long as they were taken within the scope of his
responsibility and without bad faith. It is not seriously disputed that Sheriff Hamp was acting
within the scope of his employment responsibilities when he made the termination decision; thus,
the crucial inquiry is whether Sheriff Hamp acted in bad faith. “[B]ad faith raises an issue of
motive.” Guest-White, 2016 WL 595407, at *6. Direct evidence of bad faith is not necessary;
rather, a finding of bad faith can be inferred from other evidence. Id. “The conclusion, though,
must be that the actor was malicious or recklessly disregarded the rights of the person injured.”
Id. (citing Stephen v. Winston Cty., Miss., 2008 WL 4813829, at *8-9 (N.D. Miss. Nov. 4,
2008)).
The Court finds that Harris has provided sufficient evidence to survive summary
judgment as to this claim. Although Harris has not provided direct evidence of bad faith, Harris
has provided testimony that Sheriff Hamp interfered with the Brown murder investigation then
subjected Harris to discipline for failure to complete the investigation. Moreover, Harris has also
provided evidence of the close time period between his conversations with the District
Attorney’s office and Attorney General’s office, which portrayed Sheriff Hamp in a negative
light, and his termination. This circumstantial evidence, considered as a whole, creates a
question of fact as to whether Sheriff Hamp’s decision to terminate Harris was made in bad faith.
At the summary judgment stage, this Court’s role is simply to determine whether a
dispute as to a material fact exists—not resolve such a dispute. Therefore, because Harris has
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provided sufficient evidence to create a genuine dispute as to whether Sheriff Hamp acted in bad
faith, summary judgment is not proper as to the malicious interference with employment claim.
III.
CONCLUSION
Upon review of the submissions of the parties and the authorities cited therein, and for
the reasons set forth above, the Court finds that Harris’s First Amendment retaliation claim
against Sheriff Hamp should be dismissed based upon qualified immunity. Regarding Harris’s
malicious interference with employment claim, the Court finds that genuine issues of material
fact remain in dispute, precluding summary judgment. Accordingly, it is hereby, ORDERED
that Sheriff Hamp’s Motion to Dismiss [54] is GRANTED IN PART.
SO ORDERED this the 29th day of August, 2016.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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