Gary Thompson; Dalton Elliott; Gary Scott Manning; Alicia Hardy Plaintiffs - Appellants
Andy Shock, Individually and in his Official Capacity as Faulkner County Sheriff Defendant-Appellee
Submitted: December 15, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
WOLLMAN and SMITH,  Circuit Judges, and WRIGHT,  District
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.
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.
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.
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.
"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
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.
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 ...