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Thompson v. Shock

United States Court of Appeals, Eighth Circuit

March 28, 2017

Gary Thompson; Dalton Elliott; Gary Scott Manning; Alicia Hardy Plaintiffs - Appellants
v.
Andy Shock, Individually and in his Official Capacity as Faulkner County Sheriff Defendant-Appellee

          Submitted: December 15, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before WOLLMAN and SMITH, [1] Circuit Judges, and WRIGHT, [2] District Judge.

          SMITH, Circuit Judge.

          Gary Thompson, a former transport deputy in Faulkner County, Arkansas, sued Sheriff Andy Shock, in his individual and official capacities, for unlawful employment termination under state and federal law. He brought his federal claim pursuant to 42 U.S.C. § 1983 for the deprivation of his First Amendment right of free association. The district court dismissed the federal claim, granting Sheriff Shock qualified immunity in his individual capacity and holding that Sheriff Shock in his official capacity was not a policymaker for purposes of Faulkner County's liability. The district court then declined supplemental jurisdiction over the remaining state-law claims. Thompson appeals, seeking reinstatement of his claims against Sheriff Shock. Upon review, we affirm the district court's dismissal of Thompson's claim against Sheriff Shock in his official capacity, but we vacate the finding of qualified immunity for Sheriff Shock in his individual capacity and remand that issue for analysis under a different line of precedent.

         I. Background

         In 2012, while employed as a deputy in the Faulkner County Sheriff's Office, Andy Shock ran for Sheriff. One of Shock's coworkers in the office, Gary Thompson, did not support his candidacy. Thompson publicly endorsed Shock's main rival, Tommy Earnhart. While off-duty, Thompson campaigned for Earnhart by attending fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt. This campaigning did not interfere with Thompson's work activities, nor does the record reflect that Thompson made any public statements regarding the Sheriff's Office or other issues of public concern. After Shock discovered that Thompson supported his rival, the two met privately; Thompson assured Shock that he supported Earnhart as a personal friend and that he would be willing to work for Shock if he won the election. Thompson alleges that Shock told others that, as Sheriff, Shock would terminate current office employees that did not support his candidacy.

         In November 2012, after Shock won the election, Thompson received a letter from newly elected Sheriff Shock notifying him of his "non-selection" for employment in January 2013. The letter outlined a grievance procedure providing Thompson a predeprivation hearing to contest his termination. Thompson requested the hearing, and during the proceedings, Sheriff Shock testified that he chose not to select Thompson because of his "lack of good work ethic." The record reflects no discipline procedures or negative performance evaluations regarding Thompson before he received this letter of non-selection.

         Thompson and three other non-selected employees brought this suit in 2013, alleging violations of their rights under the Arkansas Political Freedom Act, the Arkansas Constitution, and the First Amendment of the United States Constitution. The district court granted summary judgment for Shock in his individual and official capacities. The district court analyzed the First Amendment claim under the formula set out in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The district court determined that Thompson's claimed First Amendment right was not clearly established under the Pickering-Connick test, granted qualified immunity to Sheriff Shock in his individual capacity, and dismissed without prejudice the related state-law claims. The district court also dismissed Thompson's claims against Shock in his official capacity because Thompson failed to prove that Sheriff Shock was deliberately indifferent to his constitutional rights. Thompson moved to alter or amend the judgment, but the district court denied the motion. The court did, however, revise its reasoning on the official-capacity claim. The court shifted the basis for its decision to Sheriff Shock's lack of final policymaking authority in employment matters. Thompson appeals.

         II. Discussion

          "We review grants of summary judgment de novo." Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). In a § 1983 action, we will reverse an award of summary judgment in favor of a public official in his individual capacity only if a reasonable jury could find his actions under the color of state law "violated 'a right secured by the Constitution and laws of the United States.'" Id. (quoting Cook v. City of Bella Villa, 582 F.3d 840, 848 (8th Cir. 2009)). We will reverse an award of summary judgment in favor of a public official acting in his official capacity only if a reasonable jury could find that the constitutional violation was committed "pursuant to official municipal policy of some nature." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Thompson appeals the grant of summary judgment to Sheriff Shock in both capacities.

         A. Qualified Immunity

         Qualified immunity shields a government official acting in his individual capacity from liability "unless his conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Federal courts conduct a two-step inquiry into the application of qualified immunity: "(1) whether the facts alleged demonstrate a violation of the employee's constitutional right and (2) whether that right was clearly established at the time of the employee's firing." Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 832 (8th Cir. 2015). Qualified immunity protects the reasonable decisions of government actors except in cases of plain incompetence or knowing violation of the law. New, 787 F.3d at 900.

         "[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick, 461 U.S. at 140. Nevertheless, "the State's interests as an employer in regulating the speech of its employees 'differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.'" Id. (quoting Pickering, 391 U.S. at 568). "A State may not condition public employment on an employee's exercise of his or her First Amendment rights." O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996). "Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression." Id. "With a few exceptions, the Constitution prohibits a ...


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