Wake Forest Law Review

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.

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By Ali Fenno

On November 8, 2016, the Fourth Circuit issued a published opinion in the civil case of Thomas v. Salvation Army.  In Thomas, the Fourth Circuit addressed whether the Western District of North Carolina properly dismissed Sharon Thomas’s (“Thomas”) various claims against three charitable organizations that allegedly refused to admit her to homeless shelters because of her mental disability. The Fourth Circuit held that Thomas did not allege sufficient facts to support her claims and affirmed the lower court’s dismissal of the case.

Facts and Procedural History

On July 22, 2012, Thomas was admitted to defendant Salvation Army’s homeless shelter after being referred there by an organization that provided her with behavioral mental health services. Shortly thereafter, Salvation Army transferred Thomas to defendant Church in the City, a stricter shelter run by the final defendant, Victory Christian Center, because Salvation Army’s shelter had become too crowded.

Thomas disclosed her mental health issues immediately upon arriving at Church in the City. While living there, she returned to Salvation Army for two separate visits, at which she disclosed that she was receiving behavioral mental health services, authorized the release of some of her medical records to Salvation Army, and was referred to a behavioral health center.

On August 12, 2012, Church in the City evicted Thomas. Thomas was given no reason for her eviction and alleged that she had never missed curfew. She tried to be readmitted to the Salvation Army shelter but was turned down because she was evicted from Church in the City. Thomas made numerous other attempts to return over the next few days, but was still denied re-entrance on the grounds that she had violated Church in the City’s curfew and was not a good fit for the shelter. One staff member told her that she would likely be admitted after getting a mental health evaluation, but the shelter later refused Thomas admission when she returned with psychiatric discharge papers.

Thomas did not attempt to return to the shelter after this last attempt, but she continued to try to discover why she was denied admission. In September, a Salvation Army caseworker that had investigated her case informed her that her dismissal had been justified because she had been disrespectful and hostile towards the shelter staff. He offered her admission to the shelter if she submitted a mental health evaluation and received behavioral mental health services. Thomas instead requested records of her stay at the shelter and of the relationship between Salvation Army and Church in the City. This request was denied.

Nearly two years later, Thomas filed this action in the Western District of North Carolina, moving to proceed in forma pauperis. Although the district court granted the motion, in the very same order it dismissed all of her claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief could be granted. The court also warned Thomas that it would require her to show cause as to why it should not enter a pre-filing injunction against her if she continued to file meritless lawsuits.

Thomas then appealed to the Fourth Circuit, challenging her appeals under 42 U.S.C. § 1983 (“§ 1983”), 42 U.S.C. § 1985 (“§ 1985”), the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), and the Rehabilitation Act.

§ 1915(e)(2)(B)(ii) Standard of Review

The Fourth Circuit established that the standard for reviewing a dismissal under § 1915(e)(2)(B)(ii) is the same as that for a dismissal under Federal Rule of Civil Procedure 12(b)(6). It therefore reviewed the district court’s dismissal de novo and accepted Thomas’s pleaded facts as true. Because Thomas was a pro se plaintiff, the court liberally construed the allegations in her complaint, but it maintained that her claims for relief must still be plausible on their face.

Lack of State Action Invalidates § 1983 Claim

The Fourth Circuit first determined that Thomas’s § 1983 claim was correctly dismissed because the defendants were not state actors. It recognized that § 1983’s color of law requirement does not cover private conduct, and private conduct can only be converted to state action when the state dominates the private activity. Here, because all three defendants were private organizations and Thomas did not allege any facts attributing their actions to the state, the Fourth Circuit held that Thomas had not plead a valid § 1983 claim.

Lack of a Conspiracy Invalidates § 1985 Claim

The court next approved the dismissal of Thomas’s § 1985 claim, holding that she did not allege any facts supporting the existence of a conspiracy between Salvation Army and Church in the City. Although Thomas alleged that her Salvation Army badge included a mention of Church in the City and that her inability to return to Salvation Army was due to her ejection from Church in the City, the court concluded that these facts only showed that the charities worked together to help Charlotte’s homeless population. Thomas’s remaining allegation that Salvation Army conspired with Church in the City was merely conclusory, which is not enough to proceed on a § 1985 claim.

No Standing for an ADA Claim

The Fourth Circuit then addressed Thomas’s ADA claim. The district court dismissed the claim on the grounds that Title I of the ADA requires a plaintiff to exhaust her administrative remedies before pursuing civil litigation. But the Fourth Circuit rejected this reasoning, noting that Title I of the ADA only applies to claims concerning employment, and here, Thomas’s claim did not concern employment.

However, the Fourth Circuit still found that that Thomas lacked standing to bring an ADA claim pursuant to both Title II and Title III of the ADA. Title II did not apply because it only applies to actions against public entities, and in this case, none of the defendants were public entities. Title III, though applying to places of public accommodation like the shelters in Thomas, still did not give the plaintiff standing because it only provides a private right of action for injunctive relief. The court noted that injunctive relief is only available to plaintiffs that show they have suffered irreparable injury, which requires a showing of a real or immediate threat that the plaintiff will be harmed again. Here, the court concluded that Thomas did not show a real or immediate threat that she would be harmed again because all the alleged harms occurred over two years before the action was filed. Furthermore, Thomas admitted that she filed the relief not to prevent future discrimination, but because of her “persistent and distressing memories” of the past discrimination. Accordingly, the court concluded that the ADA claim was invalid because the facts alleged in Thomas’s complaint did not establish irreparable harm entitling her to injunctive relief.

 Lack of Discrimination Invalidates FHA Claim

The Fourth Circuit approved the dismissal of Thomas’s FHA claim because her complaint did not contain a plausible allegation of discrimination. The court first noted that the FHA prohibits “mak[ing] unavailable or deny[ing] . . . a dwelling to any buyer or renter because of a handicap,” and that a handicap is “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” Here, Thomas did not adequately identify a mental impairment for the purpose of the FHA: she identified her mental illness as a mood disorder, but then alleged that she was “mentally stable” and that the mental evaluation requested by Salvation Army was not necessary.

Even if Thomas had identified a valid mental illness, the court concluded that she did not allege facts establishing a nexus of causation between that illness and the defendants’ actions. The complaint listed multiple reasons besides Thomas’s mental disability for her eviction from the shelters, and the court further found that Thomas’s behavior with staff members gave Salvation Army valid grounds for requesting mental health examinations and records. Accordingly, the Fourth Circuit held that Thomas’s FHA claim must be dismissed because her factual allegations did not amount to a plausible showing of a mental impairment and causation, which are both essential to proving the discrimination element of a FHA claim.

Failure to Meet the Rehabilitation Act’s Heightened Causation Standard

The Fourth Circuit last concluded that Thomas failed to meet the Rehabilitation Act’s heightened causation standard. Like the ADA and FHA, the Rehabilitation Act forbids discrimination based on a disability. However, the court noted that it is different in two ways: (1) it applies only to programs receiving federal assistance, and (2) the plaintiff must show that the discrimination was solely by reason of her disability. The court first recognized that the Plaintiff only alleged that the Salvation Army received federal funding; there was no mention in the complaint of such funding for Church in the City or Victory Christian Center. It then reasoned that the second causation element must fail for the same reasons the FHA claim failed: (1) the complaint failed to allege a mental illness qualifying as a disability under the Act, and (2) it did not establish a nexus of causation between Salvation Army’s refusal to admit her and that disability. Accordingly, the court affirmed the district court’s dismissal of the claim.

Conclusion

Because the Fourth Circuit approved the dismissal of all five of Thomas’s claims, it also affirmed the district court’s decision to not exercise supplement jurisdiction over Thomas’s state law claims and to dismiss them without prejudice. However, the court noted that Thomas was not given an opportunity to respond before the district court dismissed her complaint sua sponte or to amend her complaint. Thus, the Fourth Circuit affirmed the decision of district court but modified it so that the dismissal would be without prejudice.

By Blake Stafford

On March 17, 2016, the Fourth Circuit issued its published opinion in Raynor v. Pugh, a civil case regarding prisoner civil rights.  James Herman Raynor, an inmate at a Virginia correctional facility, brought an action under 42 U.S.C. § 1983 alleging that G. Pugh, the Prison Housing Manager at the facility, violated the Eighth Amendment by failing to protect Raynor from an attack by another inmate.  The district court granted summary judgment in favor of Pugh after denying Raynor’s requests for discovery and subsequently finding no “genuine” disputes of material fact.  The Fourth Circuit vacated and remanded, finding (1) that genuine disputes of material facts permeated Raynor’s claim, precluding summary judgment; and (2) that it was error for the district court to deny Raynor the opportunity to conduct discovery.

Facts & Procedural History

Raynor is an inmate at Sussex II State Prison who suffers from various medical ailments, including seizures, blackouts, blood issues, heart issues, and breathing issues.  Raynor, who was then-cellmates with inmate K. Mullins, requested that Pugh move him to a different cell so he could be housed with a “caretaker” inmate who had volunteered to assist him with his health conditions.  However, Pugh determined that Mullins, rather than Raynor, would have to relocate. After Pugh delivered this news to both Mullins and Raynor, Mullins allegedly threatened to assault Raynor.  Pugh was allegedly still present when Mullins made this threat and responded that he did not care what Mullins did.  Soon thereafter, Mullins did physically assault Raynor, and Pugh allegedly watched the entire assault while failing to take any action until after the assault had ended.  Because of the attack, Raynor allegedly suffered significant spinal damage that caused constant and severe pain as well as a complete loss of leg control, forcing Raynor to be confined to a wheelchair for the rest of his life.

After exhausting administrative remedies, Raynor filed this § 1983 action, alleging that Pugh’s deliberate indifference to Raynor’s safety, and the resulting injuries, constituted cruel and unusual punishment in violation of the Eighth Amendment.  Raynor submitted the following evidence to support the alleged facts: a verified complaint describing the incident; a corroborating affidavit from another inmate who had witnessed the assault; copies of several request for medical attention for severe spinal pain; and six doctor’s reports describing spinal x-rays taken before and after the assault.  Raynor also moved for discovery of the security video of the incident, any related prison policies or procedures, and all prison reports and documents related to the investigation of the assault.  Pugh disputed essentially every fact alleged by Raynor, contending that no threatening comments were made in Pugh’s presence before the assault; that he was in a different part of the prison during the assault; that prison policy would have prevented him from intervening even if he had been present; and that Raynor’s injuries were minor—any spinal problems were attributable to a prior accident.  Pugh moved for summary judgment and for a protective order to stay discovery based on a qualified immunity defense.

The district court denied Raynor’s discovery requests, granted Pugh’s discovery protective order (without reaching the merits of the qualified immunity defense), and granted summary judgment in favor of Pugh.  The district court found that the disputes of fact were not “genuine” due to a lack of evidentiary support for Raynor’s claims.

Prison Official Liability for Eighth Amendment Violations

The Eighth Amendment, which prohibits “cruel and unusual punishment,” imposes a duty on corrections officers to protect prisoners from violence at the hands of other prisoners.  To translate this duty into constitutional liability for prison officials under 42 U.S.C. § 1983, a plaintiff must establish that the incident satisfies a two-part test that consists of both an objective and a subjective inquiry.  First, the inmate must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury.  Second, an inmate must show that the prison official had a sufficiently culpable state of mind, which, in this context, consists of deliberate indifference to inmate health or safety.  This second prong requires the prison official to have actual knowledge of the excessive risk of danger, which can be proven through both direct and circumstantial evidence.  Additionally, a prison guard who does not intervene in the assault can avoid liability if such intervention would have placed the guard in danger of physical harm.  This does not, however, shield a prison guard from liability for completely failing to take any action to stop an ongoing assault.

Analysis

The Fourth Circuit found that genuine disputes of material fact were present for both the objective-injury prong as well as the subjective-knowledge prong, precluding summary judgment.

(1) Objective-Injury.  Raynor alleged specific facts describing facial trauma and spinal injury caused by the attack.  These facts were supported by his verified complaint, several written requests for medical attention, and six medical reports interpreting x-rays of his spine before and after the incident.  Additionally, he offered a witnessing inmate’s affidavit, which describes Mullins’ final blow that allegedly caused the spinal injury.  Pugh disputed the truth of all of the facts alleged by Raynor; however, because Raynor offered evidence as to material facts concerning the seriousness of the injury, the Fourth Circuit found that summary judgment was precluded.

(2) Subjective-Knowledge.  Raynor alleged specific facts in his verified complaint (which are corroborated by the witnessing inmate’s affidavit) to support his allegation that—in two independent ways—Pugh acted with deliberate indifference.  First, Raynor alleged that Mullins told Pugh that he was going to attack Raynor and that Pugh responded that he did not care what Mullins did.  Second, he alleged that Pugh had knowledge of the attack as it was happening because Pugh watched the entire incident.  By failing to radio for help, Pugh’s response was allegedly not reasonable to shield him from liability for failing to protect Raynor from the attack and resulting injuries.  The Fourth Circuit found that each of these independent grounds supported Raynor’s contention that Pugh had actual knowledge of an excessive risk to Raynor’s safety.  Thus, summary judgment was precluded on this prong as well.

Disposition

In sum, the Fourth Circuit found that genuine disputes of material fact permeated both prongs of Raynor’s § 1983 claim; thus, the district court erred in granting summary judgment.  The Court vacated the district court’s judgment and remanded the case.  Additionally, the Court found that, by failing to rule on the qualified immunity defense asserted by Pugh, the district court erred in granting Pugh’s protective order against discovery.  Thus, the Fourth Circuit instructed the district court to allow appropriate discovery on remand.

Concurrence

The concurring opinion agreed with the majority’s conclusions regarding discovery and the subjective-knowledge prong.  However, the concurrence found that, given Raynor’s complex medical history, the evidence Raynor proffered for the objective-injury prong was insufficient to allow a lay juror to determine whether Raynor’s spinal injuries were attributable to Mullins’ attack.

By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

By Anthony Biraglia

In United States v. Kenneth Rush, a criminal case decided and published on December 21, 2015, the Fourth Circuit reversed a West Virginia district court’s denial of a motion to suppress evidence. The Court found that the good-faith exception to the exclusionary rule did not apply, and that lying about the existence of a search warrant was exactly the type of police conduct that the exclusionary rule guards against. The Court thus determined that evidence found during a search of Kenneth Rush’s (“Rush”) apartment should be suppressed, and remanded the case for further proceedings.

Circumstances of the Search and Motion In Limine

Police in Charleston, West Virginia, searched the apartment where Rush was staying pursuant to the consent of a co-habitant, who had earlier told police that she was afraid of Rush and that he was dealing drugs out of the apartment. During the search, a police officer told Rush that they had a warrant to search the apartment in response to his inquiries about why the officers were conducting the search. The officers knew that they did not, in fact, have a valid warrant to search the apartment. The search turned up crack cocaine and digital scales, which Rush admitted were his. However, the police did not arrest Rush at that time, nor did they arrest him when he made a voluntary trip to the police station to answer questions about his supplier. He was eventually arrested and charged with one count of knowingly and intentionally possessing with the intent to distribute twenty-eight grams or more of cocaine base under 21 U.S.C. § 841(a)(1).

Rush moved in limine to suppress the evidence seized. While the district court did find a violation of Rush’s Fourth Amendment right to object to the search, it determined that the officers’ lie about the search warrant was a “justifiable attempt to protect” the co-habitant and that exclusion would have little deterrent effect on police conduct. Rush pled guilty while reserving the right to appeal the district court’s decision on his suppression motion. On appeal, the Fourth Circuit reviewed the district court’s legal conclusions de novo and factual findings for clear error.

The Good-Faith Exception to the Exclusionary Rule is Not Applicable

The exclusionary rule is designed to deter violations of the Fourth Amendment by police through the exclusion of evidence that is the fruit of an unlawful search. Even though the search in this case was unlawful, the United States argued that the evidence should still be admissible under the good-faith exception to the exclusionary rule. The good-faith exception applies where the police act with an objectively reasonable, good-faith belief that their conduct is lawful. The Supreme Court has applied the good-faith exception in cases where the police relied upon a facially valid warrant, and where police relied upon erroneous information from the Clerk of Court’s office concerning an outstanding warrant.

The Court found that a deliberate lie about the existence of a warrant was unlike other situations where the good-faith exception has applied. The officer who made the statement in this case was a sixteen-year veteran of the police force that the Court reasoned could not have believed that it was lawful to lie about the existence of a search warrant. It is settled law that such lies are violative of the Fourth Amendment.

The government argued that the officers did not intend to violate Rush’s rights, but rather lied to him in order to protect the co-habitant. Whether or not this was truly their motive, (and the Court cited evidence showing that it was likely not) the test for the good-faith exception is subjective rather than objective. The the police officers’ subjective intentions are therefore irrelevant.

Exclusion of this Evidence will Deter Police Misconduct

Unlike the district court, the Fourth Circuit found that excluding the evidence would likely deter police officers from violating the Fourth Amendment in similar circumstances going forward. Quoting the Sixth Circuit, the Court stated “so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretense.”

Reversed and Remanded

For the above reasons, the Fourth Circuit reversed the district court’s decision on the suppression motion and remanded the case for further proceedings.

POLICE 10

By Sarah Saint

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Hunter v. Town of Mocksville, North Carolina. Plaintiffs Keith L. Hunter (“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin (“Medlin”)—officers of the Mocksville Police Department (“MPD”) in Mocksville, North Carolina—were concerned about corruption in the MPD and reached out to the North Carolina Governor’s Office as public citizens. Public employees still have First Amendment rights when they speak as “citizen[s] on a matter of public concern.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quotation marks and citation omitted). Accordingly, Plaintiffs enjoy First Amendment protection in their outreach. The Fourth Circuit affirmed the district court’s denial of summary judgment to Defendants Robert W. Cook (“Cook”), Administrative Chief of Police of the MPD, and Christine W. Bralley (“Bralley”), Town Manager of the Town of Mocksville.

Misconduct in the MPD

Plaintiffs Hunter, Donathan, and Medlin became concerned with Defendant Cook’s behavior and leadership as police chief. Plaintiffs saw him excessively drink alcohol in public and in uniform, which they felt reflected poorly on the police department. They also believed Cook drove a police car with blue lights flashing and behaving as a law enforcement officer when he had never been certified, in violation of the law. Further, Plaintiffs suspected Cook misused public funds for personal gain, racially discriminated, and “fixed” tickets for his friends.

Plaintiffs reported their concerns to Defendant Bralley but saw no improvement and worried about retaliation. Deputy police chief Daniel Matthews (“Matthews”) criticized Donathan regarding his concerns he raised with Bralley, and Cook demoted Medlin.

In November 2011, Cook reorganized the department, giving Matthews a promotion to second-in-command and demoting Hunter, one of only two African-Americans in the MPD. Hunter subsequently filed a grievance but his concerns were dismissed. Donathan was promoted and instructed to “adhere to the ‘politics’ of the MPD.” The next month, the three Plaintiffs and two other officers met privately to discuss their concerns and decided to seek outside investigation as private citizens.

Plaintiffs met with the National Association for the Advancement of Colored People (“NAACP)”, which advised them to contact a state agency. Hunter purchased a disposable phone so they could report their citizen complaints separately from their affiliation with the MPD. They then contacted the North Carolina Attorney General with the disposable phone. The Attorney General referred them to local individuals closely aligned with Cook, and the Plaintiffs felt they could not contact them. Plaintiffs called the North Carolina Governor’s Office with the disposable phone and expressed their concerns with no identifying details. Donathan later identified the MPD to the Governor’s Office, and the Governor’s Office offered to report their concerns to the State Bureau of Investigation (“SBI”).

The next week Medlin saw a local SBI agent at the MPD and noted the SBI agent had a close relationship with Cook and Mathews. The agent called the disposable phone, but the Plaintiffs did not return the call and disposed of the disposable phone because they felt they could not trust the agent. The phone was found, and the agent contacted the Davie County Sheriff’s Office to see if the phone belonged to anyone at the Sheriff’s Office. The Sheriff’s Office contacted the MPD and asked to run the number through MPD records. Bralley set up an online Sprint account and saw that both Donathan and Medlin had called and received calls from the disposable phone using their MPD-issued mobile phones.

MPD Fired Plaintiffs in Retaliation

Cook fired all three Plaintiffs for “conduct unbecoming a Officer” at the end of December 2011, the first time he had fired anyone at MPD, even though officers had used illegal drugs and engaged in criminal activity during his tenure. Later, in a memo to the town attorney, Cook mentioned Plaintiff’s call to the Governor and SBI and claimed the Plaintiffs conspired to discredit Cook, Bralley and others.

District Court Denied Summary Judgment to Defendants

In April 2012, Plaintiffs brought suit against Cook, Bralley, and the Town of Mocksville alleging their First Amendment rights were violated because they were fired for speaking out about corruption at the MPD. After filing an answer and engaging in discovery, Defendants moved for summary judgment. In October 2013, the district court granted summary judgment to all Defendants on the Section 1983 claims but denied summary judgment on the state law wrongful discharge and constitutional claims. The district court granted a motion for reconsideration and reversed course as to Cook and Bralley, holding that they were not entitled to qualified immunity.

District Court Rightfully Rejected Defendants’ Motion for Summary Judgment on Qualified Immunity Grounds

Qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

The Fourth Circuit rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity—arguing that no constitutional violation occurred because Plaintiffs spoke as public employees and not citizens, so the First Amendment does not protect Plaintiffs from retaliation. Courts must balance the interests of the public employee as a citizen with the right to speak out with the state’s interest in controlling the operation of the agencies. This balancing test has two steps. The first step asks whether the public employee spoke as a citizen on a matter of public concern. If the answer is no, the employee does not have First Amendment protections. If the answer is yes, the next step asks whether the public employee’s interest in speaking out about the matter of public concern outweighs the government’s interest. The first step is the primary concern of this appeal. To determine whether the public employee spoke as a citizen, the court must consider the employee’s daily professional activities.

The Defendants contend that reporting crimes is the daily professional activities of police officers like the Plaintiffs. However, the Court found calling the Governor’s Office and reporting concerns about the MPD are not part of officers’ daily professional activities. Accordingly, the Fourth Circuit found that the Plaintiffs were acting as private citizens, not public employees, speaking out on matters of public concern. Defendants asserted no countervailing state interest.

The Fourth Circuit also rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity because the rights were not clearly established at the time. The dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful. Here, it was clearly established in the Fourth Circuit that an employee’s speech about serious government misconduct is protected under the First Amendment. Therefore, the district court rightfully denied qualified immunity to Cook and Bralley on the bases that no violation occurred and that the law was not clearly established. Accordingly, the Fourth Circuit affirmed the judgments of the district court.

Dissent

Judge Niemeyer dissented because he would grant qualified immunity to Cook and Bralley. It was not clear to Cook and Bralley at the time the officers were fired that they had complained as citizens and not as employees. It was not clear as a matter of law that police officers complaining to the Governor’s Office about departmental corruption is speech by a citizen and not an employee. Had they complained as employees, they would not have First Amendment protections and retaliatory firing would have been lawful. Officials should not be held liable for “bad guesses in grey areas.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). To the dissent, Cook and Bralley made a bad guess in a grey area and accordingly should not be held liable.

By Anthony Biraglia

In a published opinion released on June 15, 2015, the Fourth Circuit affirmed a Maryland district court’s dismissal of a complaint for failure to state a claim and grant of summary judgment in the civil case of Adams v. Anne Arundel County Public Schools. Plaintiff Andrew Adams (“Adams”) alleged that Defendant Anne Arundel County Public Schools (“the School District”), and more specifically the Board of Education (“the Board”), violated his rights under the Family and Medical Leave Act of 1993 (“FMLA”), the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and Maryland state law. The district court dismissed the state law and Title VII claims, and granted summary judgment to the School District on both the FMLA and ADA claims. Adams appealed the summary judgment decision. The Court found no merit to Adams’s allegations that Board (1) interfered with his medical leaves, (2) retaliated against him for those leaves, (3) discriminated and retaliated against him on the basis of his disability, and (4) failed to accommodate his condition, and thus it affirmed the district court’s ruling.

Incident with Student, Medical Leaves, and Reassignment

Adams, an assistant middle school principal in the School District, was involved in a physical altercation with a student on January 19, 2010, that resulted in investigations by both Child Protective Services (“CPS”) and the Board. Adams was temporarily reassigned until a February 24, 2010, meeting with Board investigators, after which he was placed back at his original school. Although Adams, asserting he was shown a document at the February 24 meeting clearing him of all charges, believed the Board’s investigation was over at this point, the Board denied that it had shown him such a document and continued its investigation. On April 12, The Board notified Adams of a May 6, 2010, pre-disciplinary conference, which was delayed four days to allow Adams’s attorney to attend. Two weeks later, he was issued a formal reprimand, and the Board took no further disciplinary action.

Upon reassignment to his original school on February 25, 2010, Adams went on the first of three medical leaves. This leave came at the advice of an internal medicine specialist who diagnosed Adams with stress, anxiety, and high blood pressure resulting from the January 19 incident. After returning to school on March 3, 2010, Adams again went on leave after being “berated” by the principal and suffering a panic attack. Adams claimed he was berated again, this time in front of other staff, when he returned on March 8., 2010. Two weeks later he began his third leave, when a psychiatrist diagnosed him with acute stress disorder. Both Adams’s psychiatrist and the Board’s psychiatrist recommended that Adams be assigned to a lower-stress environment when he returned to work.

After being cleared to work on July 28, 2010, Adams was reassigned to a significantly smaller school for children with behavioral issues. Pursuant to a union contract, his pay remained the same for the first two years at the new school, and was subsequently reduced by less than one percent based on his position at a smaller school. Adams was also disqualified from some discretionary bonuses for administrators at larger schools. By all accounts, Adams “excelled” at the new school.

Adams Files Suit

Adams originally filed this lawsuit in Maryland state court, and the School District removed to federal court (presumably on the basis of federal question jurisdiction). The district court, after allowing Adams to amend his original complaint, dismissed the Title VII and state law claims. After discovery, the district court granted summary judgment to the School District on both the FMLA and ADA claims.

Adams appealed the grant of summary judgment on the FMLA and ADA claims. The Fourth Circuit reviews summary judgment motions de novo, viewing all facts in the light most favorable to the non-moving party.

The Board Did Not Interfere with Adams FMLA Rights or Retaliate Against Him for Exercising Those Rights

An interference claim under the FMLA consists of three elements. The employee must demonstrate that (1) she is entitled to an FMLA benefit, (2) her employer interfered with the provision of that benefit, and (3) the interference caused harm. The Court noted that interference claims generally arise when an employee is denied FMLA benefits, which was not the case with Adams. However, discouraging an employee from taking FMLA leave through adverse employment actions can also constitute interference. The Court dismissed Adams’s contentions that unnecessary medical examinations (which were in fact authorized by the FMLA), the pre-disciplinary conference, and the verbal and written reprimands he received constituted actionable interference under the FMLA. In the Court’s view, none of these actions were adverse employment actions within the context of the statute.

The Court also found that the Board’s actions toward Adams were not retaliatory. Both actions that Adams alleged were retaliatory, namely reopening the investigation and transferring him to a smaller school, were simply not retaliatory in the Court’s view. The Court observed that the investigation was never closed, and thus could not have been reopened to retaliate against Adams, and that the transfer was actually recommended by Adams’s own doctors. In fact, the Court opined, the Board made efforts to accommodate Adams rather than retaliate against him.

The Board Did Not Discriminate or Retaliate Against Adams Based on His Disability

Adams’s claims under the ADA arose out of the same operative facts as his claims under the FMLA. Specifically, Adams alleged that the verbal attacks by the principal, the continued investigation, the written reprimands, and the medical examinations constituted ADA violations by the Board, and the transfer to a smaller school was failure to reasonably accommodate his disability.

An element of both the discrimination and retaliation aspects of Adams’s ADA claim is that the plaintiff must have suffered an adverse employment action, which the Fourth Circuit defined as “some direct or indirect impact on an individual’s employment as opposed to harms immaterially related to them.” The Board’s actions of which Adams complained did not, in the eyes of the Court, rise to the level of adverse employment actions. As the Court pointed out in its analysis of the FMLA claim, the decision to transfer Adams to a different school (which was the Board’s only action that had any material affect on Adams’s employment), was made at the behest of Adams’s own doctors.

Affirmed

Because Adams failed to create a triable issue of fact on both his FMLA and ADA claims, the Fourth Circuit affirmed the district court’s decision to grant summary judgment to the School District.

By Elizabeth DeFrance

On May 27, 2015, the Fourth Circuit issued a published opinion in the civil case Wright v. North Carolina. The Court considered whether the District Court for the Eastern District of North Carolina erred in ruling Senate President Pro Tem Philip Berger and General Assembly Speaker Thom Tillis could not be properly enjoined to a suit claiming the redrawing of Wake County Board of Education electoral districts violated the “one person, one vote” guarantees of the Fourteenth Amendment and the North Carolina Constitution. The Court also considered whether the district court erred in granting the defendants’ Federal Rules of Civil Procedure 12(b)(6) motion to dismiss when the plaintiffs’ complaint alleged “facts sounding in arbitrariness” without explicitly stating the element.

After Elections Resulted in a Democratic Majority on the Board of Education, the Republican-led General Assembly Passed a Bill to Redraw Electoral Districts

The Wake County Board of Education redrew electoral districts after the 2010 census, as required by the General Assembly. The resulting districts were geographically compact and had a maximum population deviation of 1.66%. The first election under the new plan resulted in a Democratic majority on the Board of Education. In spite of objections from the majority of the School Board, the Republican-led General Assembly passed Session Law 2013-110 (“Session Law”), redrawing the electoral districts. The changes resulted in seven less geographically compact districts and two “super districts.” One super district is an outer ring of rural areas and the other a central urban area. The maximum population deviation between the super districts is 9.8%. The Session Law also prohibits the Board of Education from making any changes to its election procedures until 2021.

Calla Wright along with twelve other individual Wake County citizens and two citizen associations brought a claim against the State of North Carolina and the Wake County Board of Elections alleging the redistricting violates the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the North Carolina Constitution because the votes of Plaintiffs living in overpopulated districts weigh less than the votes of people living in underpopulated districts.

Defendants filed a 12(b)(6) motion to dismiss. Plaintiffs moved to amend to substitute Governor Pat McCrory, Senate President Pro Tem Philip Berger, and General Assembly Speaker Thom Tillis for the State of North Carolina. The district court granted Defendants’ motion to dismiss and denied Plaintiffs’ motion to amend.

State Officials May be Enjoined for the Use of State Power in Violation of the Constitution Only if they Have a Connection with Enforcement of the Act

The Court noted that although the Eleventh Amendment provides some immunity for state officials from private suits brought in federal court, an official may properly be enjoined if he has “some connection with the enforcement of an unconstitutional act.” The North Carolina Constitution does not provide the General Assembly with power to enforce laws, and both Berger and Tillis are members of the General Assembly. Thus, because neither Proposed Defendant has authority to enforce the redistricting plan, the Court held that they could not be properly enjoined and Plaintiffs’ motion to amend was properly denied. The Plaintiffs, in their reply brief to the Court, had conceded that McCrory was not a proper defendant.

To Survive Summary Judgment Where the Population Deviation is Below 10%, a Plaintiff Must Produce Evidence that the Apportionment was Arbitrary or Discriminatory

On the issue of whether summary judgment was properly granted for the defendants, the Court looked to the “one person, one vote” principle inherent in the Equal Protection Clause. When constructing districts, governments must “make an honest and good faith effort” to make the population in each as close to equal as is practicable. When a plaintiff brings a claim related to a redistricting plan with a population deviation below 10%, he has the burden to provide additional evidence showing the redistricting process had a “taint of arbitrariness or discrimination.”

Plaintiffs’ Factual Allegations “Sounding in Arbitrariness” Were Sufficient to Provide Defendants Fair Notice of Their Claims

The Court noted that Plaintiffs’ complaint alleged the redistricting discriminated between urban and rule voters because the rural districts were “unjustifiably underpopulated” and the urban districts were “overpopulated without justification.” The Plaintiffs also pointed out that the Board of Education was opposed to the Session Law, and that no African-American or Democratic members of the General Assembly voted for it. The Court reasoned that this suggested the law was “neither racially or otherwise neutral.”

The Court reasoned that although Plaintiffs did not expressly plead that the Session Law was arbitrary or discriminatory, their factual allegations sounded in arbitrariness and provided defendants fair notice of their claims.

The Court also rejected the district court’s justification for dismissal based on its view that plaintiffs had a political gerrymandering claim rather than a “one person, one vote” claim. The Court concluded that Plaintiffs clearly pled an equal protection claim.

Plaintiffs’ Federal Constitution and North Carolina Constitution Equal Protection Claims Were Improperly Dismissed

The Court held that because Plaintiffs’ complaint clearly pled facts supporting arbitrariness and discrimination, their Federal Constitution equal protection claim was improperly dismissed under 12(b)(6). For the same reasons, Plaintiffs’ North Carolina equal protection claim was also improperly dismissed. Additionally, because the Proposed Defendants did not have authority to enforce the Session Law, they could not be enjoined and Plaintiffs’ request to amend was properly denied. Accordingly, the case was affirmed in part, reversed in part, and remanded.

Circuit Judge Diana Gribbon Motz dissented. She reasoned that the Plaintiffs’ pleadings did not overcome the presumption of constitutionality for a redistricting plan with a maximum population deviation under 10% because the complaint did not use the words “arbitrariness” or “invidious discrimination” and failed to allege facts supporting such claims.

railroad

By Elissa Hachmeister

Today, in a published opinion in the civil case of Lee v. Norfolk Southern Railway Co., the Fourth Circuit established that the “Election of Remedies” provision of the Federal Railroad Safety Act (FRSA) is to be narrowly applied to bar duplicative claims brought under statutes aimed at preventing retaliation for workplace health and safety whistleblowing.

Lee’s Suspension and Subsequent Lawsuits

Charles Lee works as a carman for Northern Southern Railway Company (NS), where his responsibilities include inspecting railcars to identify potential defects. According to Lee, NS’s management capped the number of railcars that Lee could tag for repair. Lee refused to comply with the quotas because he believed federal law required him to identify and tag all defective railcars.

Lee, an African-American, further alleged that NS denied African-American carmen the training and advancement opportunities provided to white carmen. Lee described racial harassment by co-workers, who allegedly threatened his children, called him racial slurs, and hung a noose in his locker.

In July 2011, Lee was suspended for six months without pay. NS claimed it suspended Lee for drinking on the job in violation of company policy. Lee claimed that the suspension was really motivated by racial and retaliatory animus. He alleged that his white supervisor drank beer on duty and was never disciplined.

Lee filed two lawsuits against NS. In the first, Lee claimed racial discrimination in violation of 42 U.S.C. § 1981. The district court granted summary judgment for NS.

In the second lawsuit, Lee claimed retaliation in violation of the whistleblower protection provision of FRSA. Lee did not bring this claim in his first lawsuit because he was required to exhaust his administrative remedies first. The district court held that the second lawsuit was barred by FRSA’s Election of Remedies provision, which forbids an employee from “seek[ing] protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. § 20109(f).

FRSA’s Election of Remedies Provision Does Not Require a Choice Between FRSA and Federal Antidiscrimination Laws

While the district court had focused on whether Lee’s first lawsuit under § 1981 was an attempt to seek protection under “another provision of law,” the Fourth Circuit clarified that the issue was whether the two lawsuits, which both challenge the same suspension, concerned “the same allegedly unlawful act.” A question of statutory interpretation is reviewed de novo.

The court first looked at the plain language of the Election of Remedies provision and concluded that that the phrase “the same unlawful act” ordinarily means that the act is unlawful for the same reasons. The court explained that the “same act” may be implicated in more than one claim yet is “allegedly unlawful” for fundamentally different reasons depending on the claim. The provision is not triggered by merely the “same act” but by “the same allegedly unlawful act.”

Looking beyond the meaning of the words, the court reasoned that accepted grammatical rules also support its interpretation of the phrase. There is no comma between “same” and “allegedly unlawful act,” suggesting that “same” modifies the entire phrase and “unlawful act” should be read as a unit. If “same” and “allegedly unlawful” both independently modify “act,” then the adjectives should be separated by a comma per several widely respected style guides.

While the court found the provision unambiguous—that is, capable of only one reasonable interpretation—it noted that the result would have been the same even if it had found the provision ambiguous: the legislative history and context of the statute showed that the Election of Remedies provision was “only intended to bar railroad employees from seeking duplicative relief under overlapping anti-retaliation or whistleblower statutes that provide protections similar to the protections in FRSA.” Thus, the Election of Remedies provision would apply to potential claims under the Occupational Health and Safety Act (OSH Act) and various state versions of the OSH Act since those statutes, like FRSA, are aimed at preventing retaliation for engaging in protected whistleblowing activities regarding safety and health in the workplace.

The court also pointed to a 2007 amendment to FRSA that states that nothing in the FRSA’s retaliation provision is to “diminish” other rights of employees under “any” law. 49 U.S.C. § 20109(h). Quoting approvingly from a Sixth Circuit opinion, the Fourth Circuit explained that the Election of Remedies provision, if construed as NS suggested, would dilute an employee’s rights since“[r]estricting an employee to only one of the numerous arrows in his quiver obviously reduces the number of options available to him.” Norfolk S. Ry. Co. v. Perez (6th Cir. 2015).

FRSA’s Election of Remedies Provision Does Not Bar Lee’s Suit

Although both of Lee’s lawsuits challenge the same “act”— his suspension by NS—the Fourth Circuit agreed with Lee that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for railway safety whistleblowing. The court explained that a suspension in itself is not unlawful. An “unlawful act” must have a basis in the law. Since Lee’s claims were based in different laws they did not concern the “same allegedly unlawful act.”

The court emphasized that the laws implicated here, § 1981 and FRSA, have different aims and give rise to distinct causes of action with different elements and burdens of proof. FRSA seeks to prevent retaliation for engaging in protected whistleblowing activities regarding railway safety while § 1981 aims to halt racial discrimination. FRSA’s Election of Remedies provision therefore does not apply to bar Lee’s second lawsuit.

The Fourth Circuit Vacated and Remanded for Further Proceedings

By Marcus Fields

Today, in Pleasants v. Rigsby, an unpublished decision, the Fourth Circuit affirmed the District Court for the Western District of Virginia’s grant of summary judgment in favor or Officer Robert Rigsby and the Town of Louisa on Sloan Pleasants’ claim that Rigsby falsely arrested her.

Officer Rigsby’s Arrest of Sloan Pleasants

On December 13, 2009, at the request of Sloan Pleasants’ ex-husband Kevin, Officer Rigsby went to the house of Sloan Pleasants in order to perform a “welfare check” on Kevin’s eleven-year-old daughter. During the visit the child was visibly frightened and Sloan Pleasants initially refused to let the child speak with either Kevin or Officer Rigsby. Upon questioning, the child told Officer Rigsby that Sloan had slapped her on her thigh and pulled her by her wrists. Officer Rigsby could see no visible marks or bruises. Officer Rigsby then proceeded to arrest Sloan Pleasants for assault and battery against a family member, a charge that was later dropped.

Pleasants’ Claims on Appeal

Pursuant to 42 U.S.C. § 1983, Pleasants originally claimed unlawful entry, false arrest, malicious prosecution, and failure to train on the part of the Town of Louisa, as well as other related state law claims. These claims were dismissed by the district court, and all but one of these dismissals were affirmed by the Fourth Circuit in an earlier appeal. The false arrest claim was remanded to the District Court for further proceedings. After further developing the factual record the District Court granted summary judgment for Officer Rigsby after finding that he was entitled to qualified immunity. Pleasants appealed, claiming the District Court erroneously based this finding on “disputed facts and inferences drawn in favor of Officer Rigsby.”

Officer Rigsby Entitled to Qualified Immunity

The Fourth Circuit, reviewing the district court’s grant of summary judgment de novo, determined that the district court was correct in granting Rigsby qualified immunity. Government officials are protected by the doctrine of qualified immunity “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to find that qualified immunity is not present, a court must conclude that “a constitutional violation occurred and … the right violated was clearly established.” Both the district court and the Fourth Circuit focused analysis on the second prong. The Fourth Circuit ultimately concluded that based on the frightened state of the eleven-year-old girl, the girl’s statements to Officer Rigsby, and Sloan Pleasants’ demeanor towards Officer Rigsby, “a reasonable officer could have believed that Officer Rigsby’s arrest of Pleasants was lawful.”

Grant of Summary Judgment Affirmed

For the above reasons, the Fourth Circuit affirmed the grant of summary judgment to Officer Rigsby on the false-arrest claim.

By David Darr

Today, in the civil rights case Infinite Allah v. Virginia, the Fourth Circuit affirmed in an unpublished per curiam opinion the decision of the District Court for the Western District of Virginia granting judgment in favor of Virginia on the plaintiff’s Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim.

Plaintiff Contended the District Court Erred in Concluding Virginia’s Policies Are the Least Restrictive Means to Further a Compelling Government Interest

On appeal, the plaintiff contended two issues: (1) the District Court erred in concluding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest; and (2) the District Court incorrectly found that the plaintiff’s religious group, the Nation of Gods and Earths (“NGE”), was a prison gang. The plaintiff also asked the court to definitively rule on three issues that the District Court assumed to be in the plaintiff’s favor.

Plaintiff Claimed that Virginia Was Substantially Burdening His Religious Exercise

Infinite Allah, a prisoner, brought a claim against the Virginia Department of Corrections for substantially burdening his religious exercise in violation the RLUIPA. Infinite Allah claimed that Virginia burdened his religion, NGE, by classifying NGE as a gang, by restricting NGE members from meeting communally, by prohibiting the plaintiff from wearing NGE clothing and accessories, by not providing meals that complied with a NGE diet, and by preventing NGE members from access to NGE publications. The District Court held a three-day bench trial to decide the case. The District Court found that NGE asserted racist teachings, NGE acted as a prison gang that posed a threat to the safety and security of the prison, NGE members posed a heightened risk of violence when they met, NGE accessories served as a gang identifier and served recruitment, the prison allowed Infinite Allah to have meals in general accordance with his religious accommodations, and NGE materials contained prison codes for passing messages and racist and violent sentiments.

For the sake of the argument, the District Court assumed that the NGE was a religion, the plaintiff’s beliefs were sincerely held, and that Virginia’s policies substantially burdened the plaintiff. With these three prongs of the RLUIPA assumed, the burden switched to Virginia to show that its policies were the least restrictive means in furtherance of a compelling government interest. The District Court decided that prison safety is a compelling government interest. The District Court also ruled that each of the measures Virginia took was the least restrictive means to further the compelling government interest of prison safety and that the plaintiff’s diet in prison was not substantially burdened. The plaintiff appealed.

Is There Reversible Error in District Court Decision?

The Fourth Circuit examines all findings by the District Court on factual issues on the clearly erroneous standard. It is also an affirmative defense to a RLUIPA claim for a governmental entity to claim that a challenged policy used the least restrictive means in furtherance of a substantial governmental interest.

The Fourth Circuit Adopted the Reasoning of the District Court

The Fourth Circuit commended the District Court on its “well-crafted” opinion, and decided to adopt the same reasoning as the District Court did. The Fourth Circuit gave appropriate deference to the District Court’s finding of fact that NGE was a prison gang in ruling that the District Court’s findings were not clearly erroneous. The Fourth Circuit also agreed with the District Court’s reasoning on whether Virginia’s policies were the least restrictive means to a compelling governmental interest. The Fourth Circuit also refused to rule on the three elements of the RLUIPA that the District Court assumed were satisfied.

The Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest and that the District Court did not err as to any findings of fact.