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Moss v. Alcorn County

United States District Court, N.D. Mississippi, Aberdeen Division

February 2, 2015

DENNIS MOSS, Plaintiff,


SHARION AYCOCK, District Judge.

Plaintiff brought this action alleging he was wrongfully terminated in retaliation for having exercised his right to free speech under the First Amendment and in violation of Mississippi public policy. Defendant has filed a Motion for Summary Judgment [51]. Upon due consideration of the motion, responses, rules, and authorities, the Court finds as follows:

Factual and Procedural Background

On December 13, 2012, Plaintiff Dennis Moss was employed as a jailer at the Alcorn County Regional Correctional Facility. In the early morning hours of that day, near the end of Moss' shift, a radio call went out that there was a fight occurring in the facility. Moss responded to the call and hurried to one of the jail's hallways where another jailer, Robert Pittman, and a state inmate, Christopher Gladney, were engaged in a physical struggle. Moss admits he did not attempt to intervene in the struggle.[1] A few seconds later, his superior, Lieutenant Levi Pendley, arrived and assisted Pittman in securing the inmate. Pittman and Pendley then escorted Gladney to a segregation cell with Moss following.

Moss alleges that once in the segregation cell, Pendley and Pittman beat the inmate but that he took no part. After the officers exited the cell, Moss claims Pendley told him in the presence of Pittman and another jailer, Jerry Stricklin, that he "should have got some of that." Moss allegedly responded that he "didn't need to get involved in any of that." Moss did not report the alleged use of excessive force to anyone or discuss the incident with anyone beyond this exchange.

Four days later on December 17, 2012, following an investigation into the incident, Moss was notified by the facility's Chief of Security, Keith Latch, that Defendant was terminating his employment for "failure to engage."[2] Moss filed the instant action seeking damages from Defendant based on this termination decision.

Summary Judgment Standard

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.

Analysis and Discussion

First Amendment Retaliation

Moss claims that he engaged in protected speech by refusing to beat Gladney and by stating that there was no reason to beat him. However, Defendant contends that Moss cannot establish that he engaged in protected speech or that his speech, even if protected, motivated its decision to terminate his employment.

"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted). "To establish a First-Amendment, free-speech retaliation claim under ยง 1983, a public employee must show that (1) [he] suffered an adverse employment action; (2) [his] speech involved a matter of public concern; (3) [his] interest in commenting on matters of public concern outweighed the defendant's interest in promoting workplace efficiency; and (4) [his] speech was a substantial or motivating factor in the defendant's adverse employment action." Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014) (citing DePree v. Saunders, 588 F.3d 282, 286-87 (5th Cir. 2009)). The last element is dispositive based on the record; therefore, the Court analyzes that issue first and need not determine whether Moss' alleged speech was in fact protected by the First Amendment.

It is undisputed that, other than Moss and the officer participants, no one witnessed the alleged beating of Gladney, and Moss testified that he did not report it to anyone before he was terminated.[3] Additionally, Moss testified that his only statement regarding the alleged beating - that he "didn't need to get involved in any of that" - was made in the presence of Pendley, Pittman, and Stricklin, none of whom were decisionmakers with regard to his termination. Indeed, the warden of the facility, Doug Mullins, was ...

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