United States District Court, N.D. Mississippi, Greenville Division
MICHAEL P. MILLS, District Judge.
Before the court is defendant's supplemental motion for summary judgment. Plaintiff has opposed the motion. Having reviewed the briefs and relevant law, the court is prepared to rule.
The facts in this case were previously set forth in this court's summary judgment opinion and in the Fifth Circuit's opinion regarding this case. See Summary Judgment Order, Docket Entry No. ; Gibson v. Kilpatrick, 773 F.3d 661, 664-67 (5th Cir. 2014). Therefore the court will limit its factual account to those directly relevant to the decision currently before the court.
While serving as police chief, Anthony Gibson reported Mayor Jeffrey Kilpatrick to outside law enforcement agencies for misuse of the city gasoline card. Months later, Kilpatrick issued Gibson written reprimands and placed him on paid suspension for various deficiencies. Gibson, in turn, filed a lawsuit against Kilpatrick in his individual capacity on December 1, 2010 alleging, inter alia, a First Amendment retaliation claim. On October 5, 2011, less than a year after the lawsuit was filed, the City of Drew Board of Aldermen voted to terminate Gibson's employment. Gibson subsequently amended his complaint to add the City of Drew ("the City") as a defendant, alleging the City violated his First Amendment rights in retaliation for filing his suit against Kilpatrick.
Kilpatrick moved for summary judgment, raising the defense of qualified immunity and arguing that the state tort law claims were barred because Gibson failed to comply with state notice requirements. See Motion for Summary Judgment and Memorandum in Support, Docket Entry Nos. [75, 76]. The City of Drew also moved for summary judgment on the grounds that Plaintiff's First Amendment claim asserted against the City was without any merit. Id.
This court originally denied the motion for summary judgment with respect to qualified immunity for Kilpatrick, but granted the motion with respect to the state tort claims. See Summary Judgment Order, Docket Entry No. . This court "reserve[d] judgment on the legal issue[ ] of whether this lawsuit constitutes a public concern" in regards to the First Amendment claim against the City. See id. Kilpatrick moved for reconsideration of his qualified immunity defense, and the Fifth Circuit affirmed this court's original judgment. See Gibson v. Kilpatrick, 734 F.3d 395 (5th Cir. 2013) ("Gibson I"). However, after the 5th Circuit's opinion, the Supreme Court decided Lane v. Franks, 573 U.S. ___, 134 S.Ct. 2369 (2014), vacated the Fifth Circuit's judgment, and remanded the case for further consideration in light of Lane.
In consideration of Lane, the Fifth Circuit recently decided Gibson v. Kilpatrick, 773 F.3d 661 (5th Cir. 2014) ("Gibson II"), which dismissed Gibson's individual-capacity claim against Kilpatrick. In so holding, the court stated "we hold only that Gibson has adduced insufficient evidence here to meet his burden of producing evidence showing that his reports here were made as a citizen rather than in his official capacity." Gibson II, at 672. While this court is dubious of the purity of Kilpatrick's motives, the Fifth Circuit granted him qualified immunity. Thus, Gibson's First Amendment claim against the City of Drew is the final issue to be resolved in this case.
Summary judgment is appropriate where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The nonmovant's evidence must be believed, and all reasonable inferences are to be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). The party opposing the motion "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Gibson asserts a First Amendment claim arising out of Gibson's purported free speech and redress of grievances. The elements of a prima facie case for First Amendment speech and redress of grievances are the same. See Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (U.S. 2011). To determine whether a public employee's speech is entitled to protection, courts must engage in a two-step inquiry. See Lane, 134 S.Ct. at 2378. The first step requires determining whether the employee spoke as a citizen on a matter of public concern. Garcettis v. Ceballos, 547 U.S. 410, 418 (2006). The second step requires determining "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id. The first step, and more specifically whether Gibson spoke on a matter of "public concern, " is at issue in this case. Whether the employee spoke as a citizen on a matter of public concern is a question of law that must be resolved by the court. See Graziosi v. City of Greenville, Miss., 775 F.3d 731, 736 (5th Cir. 2015).
Speech involves a matter of public concern if it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146 (1983). To determine whether the speech addresses a matter of public concern, we must evaluate the "content, form, and context of a given statement, as revealed by the whole record." Id., at 147-48.
As a preliminary matter, it is important to clarify what speech is at issue in this case. The speech in Gibson's original, unamended complaint was his reporting of Kilpatrick's misuse of the city gasoline card. The Fifth Circuit held that speech was held to be inactionable in Gibson II by granting Kilpatrick qualified immunity because Gibson failed to adduce sufficient evidence that his speech was made as a citizen rather than in his official capacity. Since the speech was held to be inactionable by the Fifth Circuit, and for the reasons that follow, the only speech at issue in this case is the lawsuit filed against the Kilpatrick in his individual capacity, not the reporting of Kilpatrick's misuse of the gasoline card. In his supplemental complaint, Plaintiff alleges:
The reason Plaintiff was discharged from his employment was because of the malice of the Mayor against him and because of his filing the present lawsuit, which offended the members of the board of aldermen. The filing of the suit, together with the aldermen being required to participate in the suit through the giving of depositions, worked together to cause Plaintiff's discharge.
Gibson's Am. Compl. at para. 16, Docket Entry No. 50. Plaintiff, in his original response to the motion for summary judgment, also stated, "The protected speech was filing the lawsuit." Gibson's Mem. In Opp. to S.J. at 23, Docket Entry No. 78. So the question this court must grapple with is whether Gibson, in his First Amendment retaliation lawsuit against Kilpatrick in his individual capacity, spoke on a matter of "public concern." Another way of framing this ...