Rowe v. Benjamin et al

Filing 29

ORDER directing parties to brief the court on the following two issues within fourteen (14) days: (1) whether Garcetti applies to limit a public employee plaintiffs rights under the First Amendment where a defendant alleged t o have retaliated against the plaintiff was not the plaintiffs employer; and (2) whether defendant Benjamin is entitled to qualified immunity, including whether the facts that plaintiff has alleged make out a violation of a constitutional right and whether the right at issue was clearly established at the time of thealleged misconduct by defendant Benjamin. Signed by Honorable Joseph F Anderson, Jr on 09/11/2012. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Peter J. Rowe,

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Plaintiff,
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vs.
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Stephen K. Benjamin, Larry Knightner, )
Jacqueline Roundtree, and Bernie
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Mazyck,
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Defendants.
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)

C/A No.: 3:12-cv-1201-JFA

ORDER DIRECTING
PARTIES TO BRIEF ISSUES

At the hearing on defendant Stephen K. Benjamin’s motion to dismiss held on
September 4, 2012, this court heard arguments regarding, among other things, the
applicability of the United States Supreme Court’s decision in Garcetti v. Ceballos, 547
U.S. 410 (2006), to the allegations in the instant case. In particular, the court asked the
parties to address the significance, if any, of the fact that defendant Benjamin is not
alleged to have been plaintiff’s employer. Additionally, the court heard arguments
regarding whether defendant Benjamin is entitled to qualified immunity as a public
official.
In Garcetti, the Supreme Court acknowledged that “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” Id. at 417. However, the Supreme Court held
that “when public employees make statements pursuant to their official duties, the
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employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Id. at
421.

Generally, the Supreme Court justified this holding by recognizing that

“[g]overnment employers, like private employers, need a significant degree of control
over their employees’ words and actions” in order to efficiently provide public services.
Id. at 418.
Several courts outside of the Fourth Circuit have distinguished the holding of
Garcetti in cases where a public employee plaintiff alleges that a non-employer
defendant has retaliated against the plaintiff in violation of the plaintiff’s First
Amendment rights. See, e.g., Leverington v. City of Colorado Springs, 643 F.3d 719,
728–32 (10th Cir. 2011) (discussing Worrell v. Henry, 219 F.3d 1197, 1209–14 (10th
Cir. 2000)); Fairley v. Andrews, 578 F.3d 518, 524 (7th Cir. 2009); Stokes v. City of
Mount Vernon, 2012 WL 3536461, at *6–*7 (S.D.N.Y. Aug. 14, 2012); Leavey v. City
of Detroit, 719 F. Supp. 2d 804, 812–13 (E.D. Mich. 2010); Lewis v. Mills, 2009 WL
3669745, at *3–*5 (C.D. Ill. Nov. 3, 2009). However, even though it found Garcetti to
be distinguishable, at least one court held that a defendant was entitled to qualified
immunity because the plaintiff’s free-speech rights were not clearly established at the
time of the alleged violation. See Leverington, 643 F.3d at 732–34.
Based on the above, this court believes that further briefing regarding the
following issues would assist the court’s resolution of the pending motion:

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(1)

whether Garcetti applies to limit a public employee plaintiff’s rights under

the First Amendment where a defendant alleged to have retaliated against the
plaintiff was not the plaintiff’s employer; and
(2)

whether defendant Benjamin is entitled to qualified immunity, including

whether the facts that plaintiff has alleged make out a violation of a constitutional
right and whether the right at issue was clearly established at the time of the
alleged misconduct by defendant Benjamin.
The parties are hereby directed to submit briefs regarding these issues to the court
within fourteen (14) (days).

IT IS SO ORDERED.
September 11, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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