Rogers v. Mississippi Dep't of Corrections et al
MEMORANDUM OPINION re 70 Order on Motion for Summary Judgment. Signed by Magistrate Judge Roy Percy on 6/4/2021. (yf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JOHN D. ROGERS
CIVIL ACTION NO. 4:18-CV-257-RP
MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al.
John D. Rogers brought this action against the Mississippi Department of Corrections, as
well as Pelicia E. Hall and Sean Smith in their individual capacities, seeking damages and other
relief as a result of Rogers’ termination from employment with the Mississippi Department of
Corrections. The defendants now request summary judgment. Docket 47. Rogers has
responded in opposition, the defendants have replied, and the matter is ripe for resolution.
Having considered the parties’ submissions, the court finds the defendants’ motion is well taken
and should be granted.
Summary Judgment Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions [of the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S.
at 323. The nonmoving party must then “go beyond the pleadings” and designate specific facts
showing there is a genuine issue for trial. Id. at 324. In reviewing the evidence, factual
controversies are to be resolved in favor of the nonmovant, “but only when … both parties have
submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 150, 120 S.Ct. 2091, 147 L.Ed.2d 105 (2000).
“Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic arguments do not adequately substitute for specific facts showing a
genuine issue for trial.” TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754 (5th Cir.
2002). “As to materiality, substantive law will identify which facts are material. Only disputes
over facts that might affect the outcome of the suit under governing law will properly preclude
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2s 202 (1986).
Facts and Procedural History
The investigative arm of the Mississippi Department of Corrections (“MDOC”) is the
Corrections Investigation Division (“CID”), which is responsible for investigating security
threats, staff misconduct, gang activities, assaults, contraband violations, narcotics violations,
escapes, and other matters. CID investigators are law enforcement officers empowered by
statute to investigate and enforce all MDOC regulations related to the functions and missions of
the department and all laws of the State of Mississippi.
Miss. Code Ann. § 47-5-54. At all
times relevant to this action, the plaintiff John D. Rogers was the Chief investigator for CID’s
investigative unit at the Mississippi State Penitentiary at Parchman, Mississippi (“MSP”). He
reported to the CID Director, the defendant Sean Smith, who worked out of MDOC’s central
office in Jackson, Mississippi.
On November 21, 2016, Rogers received a report of an alleged assault on an inmate by a
corrections officer and began an investigation. According to Rogers, while he was interviewing
the suspect corrections officer, Superintendent of MSP Earnest Lee, the official responsible for
overall operations at the facility, entered the interview room and attempted to interfere with the
investigation by taking the suspect with him out of the interview room. The CID investigators
who were present objected and a standoff ensued, during which a physical altercation occurred
between Superintendent Lee and two of Rogers’ CID investigators, including James Bobo.
These events led to two separate CID investigations (neither by Rogers) – one concerning the
alleged assault on an inmate by a corrections officer, and the other concerning the altercation
between Superintendent Lee and the CID investigators.
In early March of 2017, Rogers became concerned that the defendant Pelicia E. Hall,
then-Commissioner of MDOC and its top official, intended to cover up the investigation of the
assault on the inmate and Superintendent Lee’s attempted obstruction. Rogers communicated
his concerns to FBI Special Agent Walter Henry, with whom Rogers had a close working
relationship. At Agent Henry’s request, Rogers provided Agent Henry with a copy of CID’s
investigative report regarding the assault on the inmate. Rogers did not provide Agent Henry
with a copy of CID’s investigative report regarding the altercation between Superintendent Lee
and CID investigators.
A few days later, on March 13, 2017, Rogers testified in the Circuit Court of Sunflower
County, Mississippi at a probable cause hearing on a criminal charge brought by Superintendent
Lee against James Bobo for allegedly assaulting Lee during the subject incident. 1 Called to the
witness stand by counsel for Bobo, Rogers testified about his law enforcement background and
his role as Chief of investigations at MSP; about receiving the report of an assault on an inmate
by a corrections officer; about his investigation and his interview of the suspect corrections
officer; about Superintendent Lee’s actions that he believed interfered with his investigation;
about his knowledge of the altercation between Superintendent Lee and Bobo; and about his
understanding that the FBI would be investigating the alleged assault on the inmate.
In early June of 2017, at CID Director Smith’s request on behalf of Commissioner Hall,
Rogers provided Smith with a synopsis of all of Rogers’ communications with the FBI. The
synopsis mentioned Rogers’ conversation with Agent Henry about the alleged November 21,
2016 assault on an inmate by a corrections officer, as well as Rogers’ providing Agent Henry
with a copy of the investigative report of the alleged assault.
Rogers was terminated from MDOC on June 24, 2017. CID Director Smith personally
delivered the termination letter to Rogers and informed him of his termination. According to
Rogers, Smith gave no explanation for the termination. 2
Rogers appealed his termination to the Mississippi Employees Appeal Board (“MEAB”),
which hears state employee appeals of adverse personnel actions. After a hearing, the MEAB
concluded that Rogers was improperly terminated because he provided information to the FBI
Under Mississippi law, an arrest warrant may not be issued against a law enforcement officer
for a criminal act alleged to have occurred during the performance of his official duties unless a
circuit court judge first determines at a hearing that adequate probable cause exists for issuance
of the warrant. Miss. Code Ann. § 99-3-28.
According to the defendants, there was a history of friction between Rogers and Superintendent
Lee which had been addressed without success by top MDOC officials, and Rogers was
terminated due to his inability to get along with MSP staff and its impact on the orderly
administration of the facility. However, this proffered explanation is irrelevant to the court’s
ruling and need not be discussed further.
concerning the alleged assault on an inmate by a corrections officer and Superintendent Lee’s
potential interference with that investigation. 3 The MEAB reversed Rogers’ termination and
ordered that he be reinstated to his position with all rights and benefits restored, including back
Rogers brought this action asserting a federal claim against Hall and Smith, in their
individual capacities, for First Amendment Retaliation, and asserting a Mississippi tort claim
against MDOC for retaliation in violation of public policy. The defendants have moved for
summary judgment on all of Rogers’ claims. The defendants argue, among other things, that
Hall and Smith are entitled to qualified immunity and that MDOC is entitled to sovereign
immunity. The court agrees.
First Amendment Retaliation Claim against Hall and Smith
Rogers claims that Hall and Smith violated his First Amendment right to free speech by
terminating him in retaliation for providing information about the subject incident to the FBI and
for testifying about the incident at Bobo’s probable cause hearing. Hall and Smith assert they
are entitled to qualified immunity against this claim.
“Qualified 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. 2074, 179 L.Ed.2d 1149 (2011). Qualified immunity shields government officials from
money damages unless a plaintiff shows (1) that the official violated a statutory or constitutional
right, and (2) that the right was “clearly established” at the time of the challenged conduct. AlKidd, 563 U.S. at 735. District courts have discretion to decide which of the two prongs of the
Under MEAB precedent, retaliation for reporting a possible criminal act to the FBI or other law
enforcement agencies is an improper ground for termination of a state employee.
qualified immunity analysis to tackle first. Id.
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,
572 U.S. 765, 778-79, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). There must be controlling
authority – or a robust consensus of persuasive authority – that defines the contours of the right
in question with a high degree of particularity. Morgan v. Swanson, 659 F.3d 359, 371-72 (5th
“A qualified immunity defense alters the usual summary judgment burden of proof.”
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “When a defendant asserts qualified
immunity, the plaintiff has the burden of proving that it is inapplicable.” Waganfeald v.
Gusman, 674 F.3d 475, 483 (5th Cir. 2012). The plaintiff has the burden to point out clearly
established law. Clarkson v. White, 943 F.3d 988, 993 (5th Cir. 2019). The plaintiff also bears
the burden of “raising a fact issue as to its violation.” Delaughter v. Woodall, 909 F.3d 130, 139
(5th Cir. 2018). In the present case, Rogers has not met his burden of showing that at the time he
was fired, it was clearly established that the speech at issue was protected under the First
Amendment, and therefore Hall and Smith are entitled to qualified immunity.
“While public employees are not stripped of their First Amendment right to freedom of
speech by virtue of their employment, this right is not without exception.” Hurst v. Lee County,
Mississippi, 764 F.3d 480, 484 (5th Cir. 2014) (citing Pickering v. Board of Ed. Of Tp. High
School Dist. 205, Will County, Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968)). A four-pronged test is used to determine whether a public employee’s speech is
entitled to protection from employer discipline. Hurst, 764 F.3d at 484. “A plaintiff must
show that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of
public concern; (3) his interest in speaking outweighed the government defendant’s interest in
promoting efficiency; and (4) the protected speech motivated the defendant’s conduct.” Id.
As to the second prong, the threshold inquiry is whether the employee spoke as a citizen
on a matter of public concern. Graziosi v. City of Greenville, Mississippi, 775 F.3d 731, 736
(5th Cir. 2015) (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 189 L.Ed.2d 312
(2006)); Hurst, 764 F.3d at 784. A plaintiff must show both that he spoke as a citizen and that
his speech addressed a matter of public concern. Gibson v. Kilpatrick, 838 F.3d 476, 482 (5th
Cir. 2016). Both issues are questions of law that must be decided by the court. Graziosi, 775
F.3d at 736.
A public employee is not speaking as a citizen – but rather in his role as an employee –
when he makes statements “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421. “The
reason is that when the employee’s speech merely relates to the employment relationship as
might occur in a private workplace, the public employer should not face constitutional scrutiny
for its response.” Johnson v. Halstead, 916 F.3d 410, 422 (5th Cir. 2019) (citing Garcetti, 547
U.S. at 423). The critical question under Garcetti is “whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.” Lane v. Franks, 573 U.S. 228, 240, 134
S.Ct. 2369, 189 L.Ed.2d 312 (2014). This inquiry is unaffected by “whether or not that speech
was specifically ‘demanded of him.’” Anderson v. Valdez, 845 F.3d 580, 595 (5th Cir. 2016)
(quoting Williams v. Dallas Independent School District, 480 F.3d 689, 694 (5th Cir. 2007)).
In response to the defendants’ summary judgment motion, Rogers concedes that his
communications with the FBI regarding the subject incident fell within the scope of his
employment duties and are therefore not entitled to First Amendment protection. As such, the
court need be concerned only with Rogers’ court testimony. 4
Rogers argues that at the time he was terminated, it was clearly established that his court
testimony was speech as a citizen for First Amendment purposes under Lane v. Franks, which
held that “the First Amendment protects a public employee who provides truthful sworn
testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.” 573
U.S. 228, 238, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). “Truthful testimony under oath by a
public employee outside the scope of his ordinary job duties is speech as a citizen for First
Amendment purposes.” Lane, 573 U.S. at 238. However, the circumstances in Lane and the
circumstances of Rogers’ testimony are dissimilar.
As the Lane court emphasized, Lane, the director of a program at a community college,
was compelled by subpoena to testify at the criminal trial of a subordinate he had fired. Id. at
233, 235, 238. In the present case, although Rogers states in his brief that he was subpoenaed to
testify at Bobo’s probable cause hearing, there is no evidence of that in the record. Moreover, in
Lane it was “undisputed that Lane’s ordinary job responsibilities did not include testifying in
court proceedings.” Id. at 238 n.4. The Lane court expressly declined to address or state an
opinion on “whether truthful sworn testimony would constitute citizen speech under Garcetti
when given as part of a public employee’s job duties.” Id. As such, unless Rogers comes
forward with evidence that testifying at Bobo’s probable cause hearing was outside the scope of
his ordinary job duties, he has cited no “clearly established” law that his testimony was speech as
a citizen, and Hall and Smith are entitled to qualified immunity. Rogers has failed to meet his
Rogers argues that the MEAB’s factual finding that he was terminated for communicating with
the FBI should be given preclusive effect under the doctrine of collateral estoppel. However,
because that communication is admittedly not entitled to First Amendment protection, the
MEAB’s finding is of no benefit to Rogers here and need not be considered. If anything, it
would seem to undermine his claim that he was fired because of his court testimony.
It is axiomatic that a law enforcement officer’s job duties ordinarily include testifying in
court regarding matters learned or observed during an investigation, as Rogers did in this
instance. Courts have noted this. See, e.g., Morrow v. Dillard, 412 F.Supp. 494, 500 (S.D.
Miss. 1976) (noting general law enforcement duties include testifying in court), affirmed in part,
reversed in part on other grounds, 580 F.2d 1284 (5th Cir. 1978). The Lane court clearly
contemplated that there exist jobs that ordinarily entail testifying in court, and the job of law
enforcement officer would certainly be one. Even if this were not self-evident, it is Rogers’
burden to present evidence to the contrary, and he has not done so.
Rogers cites no evidence that testifying in court generally or testifying in Bobo’s criminal
proceeding specifically was outside the scope of his ordinary job duties. There is no evidence
Rogers was off duty when he testified. The fact Rogers was called to the witness stand by
Bobo’s counsel and not the prosecutor is not itself evidence the testimony was outside the scope
of his ordinary job duties, as law enforcement officers are expected to testify truthfully regarding
matters learned or observed during their investigations regardless of whether they are called by
the prosecution or by the defense. Again, even if this job expectation were not self-evident,
Rogers has presented no evidence to the contrary. The fact that Rogers’ testimony included
speech about what he believed to be official misconduct -- Superintendent Lee’s interference
with his investigation -- does not change the result, as “Garcetti’s rule is a broad one, and it must
be applied even where it may lead to a potentially distasteful result in an individual case.”
Gibson v. Kilpatrick, 773 F.3d 661, 671 (5th Cir. 2014).
Because Rogers has failed to meet his burden of showing that his testimony was speech
as a citizen under Garcetti and Lane, he has shown no violation of a clearly established right.
See Gibson, 773 F.3d at 672 (holding that where plaintiff adduced insufficient evidence to meet
his burden of showing his speech was made as citizen and not in his official capacity, he failed to
show his clearly established constitutional rights were violated). Hall and Smith therefore have
qualified immunity and are entitled to summary judgment.
Retaliation in Violation of Public Policy Claim against MDOC
Rogers claims that MDOC terminated him in retaliation for providing information to the
FBI about the subject alleged assault on an inmate and Superintendent Lee’s interference with
his investigation of the assault and for testifying about those matters in court. According to
Rogers, this supports a state tort claim against MDOC for violation of public policy under the
public policy exception to Mississippi’s at-will employment doctrine set forth McArn v. Allied
Bruce-Termininix Company, Inc., 626 So. 2d 603 (Miss. 1993). MDOC argues that as an arm of
the state, it is immune against this claim under the Eleventh Amendment, which guarantees that
“nonconsenting States may not be sued by private individuals in federal court.” Board of
Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866
(2001). In response, Rogers argues that by its litigation conduct in this case, MDOC has waived
its Eleventh Amendment sovereign immunity. 5 The court disagrees.
Generally, the court will find a waiver of sovereign immunity if (1) the state voluntarily
invokes federal court jurisdiction, or (2) the state makes a “clear declaration” that it intends to
Rogers’ First Amended Complaint also contains an allegation that at all relevant times he was a
whistleblower under Mississippi’s Whistleblower Protection Act (“MWPA”). MDOC asserts
sovereign immunity and other defenses against this claim as well. Rogers makes no defense of
his MWPA claim in response, and therefore the claim is deemed abandoned. See Black v.
Panola School District, 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding plaintiff abandoned claim
when she failed to defend it in response to motion to dismiss); Keenan v. Tejada, 290 F.3d 252,
262 (5th Cir. 2002) (stating “an issue raised in the complaint but ignored at summary judgment
may be deemed waived”).
submit itself to federal court jurisdiction. Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 241
(5th Cir. 2005). A state’s intent to waive its immunity must be “clearly indicated.” Meyers ex
rel. Benzing, 410 F.3d at 244. Rogers argues that MDOC has waived its sovereign immunity in
Rogers argues that MDOC voluntarily invoked federal court jurisdiction when it
consented to have this case adjudicated by a U.S. magistrate judge. However, there is nothing
in 28 U.S.C. § 636(c), the statute allowing a magistrate judge to exercise such jurisdiction upon
the consent of the parties, or in the “Notice, Consent, and Reference of a Civil Action to a
Magistrate Judge,” wherein the parties consented in this case, that suggests – let alone clearly
indicates – that by consenting to magistrate judge jurisdiction to adjudicate the case, a party
thereby invokes federal court jurisdiction over the claims in the case. As MDOC correctly
argues, such would essentially constitute giving the magistrate judge jurisdictional powers that
the district judge does not possess. Rather, “Defendant’s consent to a magistrate judge merely
expanded the universe of judicial officers who could decide Defendant’s [summary judgment
motion] on the basis of Eleventh Amendment immunity.” Bjornstrom v. State of Oregon, No.
CV 04-1877-BR, 2005 WL 1231375, at *2 (D. Ore. May 19, 2005) (finding no waiver of
Eleventh Amendment immunity where defendant filed consent to magistrate judge jurisdiction
before filing motion to dismiss on basis of Eleventh Amendment immunity).
Rogers also argues that MDOC made a clear declaration of its intent to submit itself to
federal court jurisdiction by participating in this litigation for as long as it did before moving for
summary judgment on the basis of Eleventh Amendment immunity.6 The Fifth Circuit, under
In what appears to be an honest miscalculation of time, Rogers incorrectly states in his brief
that MDOC filed its answer “three years ago this April [of 2021],” when in fact MDOC
answered the complaint two years ago in April and filed its motion for summary judgment just
similar circumstances, has rejected this very argument as follows:
However, we have never held that a state has waived its sovereign immunity
when it asserted sovereign immunity as an affirmative defense in its answer and
again in its motion for summary judgment. A defendant’s answer is virtually the
earliest time in which it may raise such a defense. Although the state defendants
did not raise their sovereign immunity in a Rule 12 motion, they nevertheless put
[the plaintiff] on notice from the very beginning that they intended to move to
dismiss on those grounds. In addition, they vigorously reasserted the defense in
their motion for summary judgment. Under the circumstances, we cannot
conclude that the state defendants engaged in “gamesmanship” or otherwise
evidenced an intent to waive their sovereign immunity in this case. The district
court was therefore correct to grant the state defendants’ motion for summary
judgment based on sovereign immunity.
Kermode v. University of Mississippi Medical Center, 496 Fed.Appx. 483, 489 (5th Cir. 2012).
In the present case, MDOC asserted sovereign immunity as an affirmative defense in its answers
to the original and amended complaints, putting the plaintiff on notice from the very beginning
that it intended to move to dismiss on those grounds, and then vigorously reasserted the defense
in its motion for summary judgment. Under these circumstances, as in Kermode, there has been
no waiver of sovereign immunity, and MDOC is entitled to summary judgment.
For the above reasons, the Defendants’ Motion for Summary Judgment is GRANTED.
A final judgment in accordance with this order will issue forthwith.
SO ORDERED, this, the 4th day of June, 2021.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE
over a year-and-a-half later.
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