United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION  OF
DEFENDANT DANTE ELBIN IN HIS INDIVIDUAL CAPACITY FOR SUMMARY
JUDGMENT AS TO QUALIFIED IMMUNITY AND DENYING PLAINTIFF'S
MOTION  FOR LEAVE TO AMEND
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion  for Summary Judgment as to
Qualified Immunity filed by Defendant Dante Elbin
(“Chief Elbin”) in his individual capacity and
the Motion  for Leave to Amend filed by Plaintiff Jerry
Cooksey (“Cooksey”). Cooksey brings claims under
42 U.S.C. § 1983 against Defendants City of Gautier,
Mississippi, and Chief Elbin in his official and individual
capacities. Cooksey, a former Gautier police officer, claims
that he reported to Chief Elbin and the City administration
that City employees were committing numerous crimes. Chief
Elbin allegedly responded by demoting Cooksey to a less
desirable position, and Cooksey was eventually terminated
from his employment with the City.
discovery commenced, Chief Elbin moved for summary judgment
on the basis of qualified immunity. Cooksey initially
responded by requesting the Court to allow discovery into his
claims, but the Magistrate Judge and then this Court denied
this request. Orders . Cooksey has now filed a
Response  to Chief Elbin's Motion for Summary
Judgment, and has separately filed a Motion  for Leave to
Amend. After due consideration of the record, the submissions
on file, and relevant legal authority, the Court finds that
Chief Elbin's Motion should be granted, and Cooksey's
claims against him in his individual capacity should be
dismissed with prejudice. The Court further finds that
Cooksey's Motion for Leave to Amend should be denied.
Cooksey's claims against the City and Chief Elbin in his
official capacity will proceed.
to the Amended Complaint, which is the operative pleading,
Cooksey was employed as a police officer with the City of
Gautier, Am. Compl.  ¶ 7, and worked as Captain of
Administration, which according to him was second-in-command
to the police chief, id. ¶ 8. Chief Elbin was
the chief of police. See Id. ¶ 10. Cooksey
alleges that he learned of criminal acts being committed
within the police department, such as employees fabricating
time cards, improperly spending grant funds, and committing
fraud, embezzlement, and tax evasion. Id. ¶
11-15. Cooksey reportedly informed Chief Elbin of these
criminal acts. Id. ¶ 10.
claims that during the summer of 2015 he informed City
Manager Samantha Abell about the alleged crimes he had
reported to Chief Elbin. Id. ¶ 19. Abell
allegedly became irritated with Cooksey and accused him of
lying, id., and presented a report to Chief Elbin
stating that Cooksey was attempting to undermine the Chief,
id. ¶ 22. Abell purportedly discussed
Cooksey's claims of criminal conduct with Chief Elbin,
who in turn admonished Cooksey for reporting to Abell.
Id. ¶ 22, 24. Cooksey was later transferred to
the position of Captain of the Patrol Division, which
according to Cooksey, was “a demotion which was much
less desirable than Captain of Administration.”
Id. ¶ 24.
September 2016, the new City Manager, Paula Yancey, and City
Attorney Josh Danos placed Cooksey on leave. Id.
¶ 29. Yancey and Danos questioned Cooksey about
Abell's prior report, and Cooksey was then given the
option to resign in lieu of termination. Id.
¶¶ 29-30. Cooksey asserts that the City concocted
false reasons for his termination, namely that he had
sexually harassed another employee. Id. ¶ 32.
Cooksey ultimately resigned, but now alleges that the City
forced him under coercion and duress to waive any claims he
may have against the City. Id. ¶ 39.
filed a Complaint  in this Court on December 29, 2016,
advancing claims under 42 U.S.C. § 1983 for deprivation
of his freedom of speech. Compl.  at 8. On April 13, 2017,
the City of Gautier and Chief Elbin filed an Answer ,
raising numerous defenses, including that Chief Elbin is
entitled to qualified immunity. Answer  at 9. On July 19,
2017, the Magistrate Judge stayed proceedings, including
discovery, on grounds that Defendants had raised sovereign
and qualified immunity as affirmative defenses.
September 1, 2017, Cooksey filed an Amended Complaint .
The Amended Complaint advances a claim under 42 U.S.C §
1983 styled as a cause of action for “Due process -
freedom of speech.” Am. Compl.  at 8. Cooksey
alleges that “Defendants retaliated against
Cooksey” for exercising his constitutional right to
free speech by complaining of and reporting the unlawful
acts, id., and that Defendants had no good faith
basis for the retaliatory termination, id.
Amended Complaint seeks a declaratory judgment that
Cooksey's release of any claims he may have against the
City is invalid based on numerous contract defenses and is a
violation of his constitutional rights to free speech and to
petition the government. Id. Cooksey raises a
“taxpayer cause of action” on grounds that
Defendants unlawfully expended taxpayer funds in violation of
state and federal law. Id. at 9. Lastly, Cooksey
claims that by terminating him for reporting criminal acts,
“Defendants violated Mississippi's public policy
exception to at will employment.” Id.
Chief Elbin's Motion for Summary Judgment
Elbin has filed a Motion  for Summary Judgment as to
Qualified Immunity, contending that he is entitled to
qualified immunity in his individual capacity because he did
not violate Cooksey's clearly established constitutional
rights. Def.'s Mem.  at 8-9, 14-15. Chief Elbin
argues that Cooksey did not suffer an adverse employment
action when he was transferred from the Administration
Division to the Patrol Division. Id. at 11-13. Chief
Elbin further posits that “[i]t appears Cooksey is
attempting to attribute his termination to Elbin, ” and
maintains that he is entitled to summary judgment on this
claim because Cooksey cannot present any facts to show that
Chief Elbin terminated Cooksey, when in fact it was City
Manager Yancey who did so. Id. at 8, 10.
countered by filing a Motion  for Leave to Conduct
Discovery, asserting that he was entitled to conduct
immunity-related discovery in order to respond to Chief
Elbin's Motion for Summary Judgment. Mot.  at 1.
Cooksey argued that the Motion for Summary Judgment raised
factual issues of “[w]hether Cooksey's transfer
from Administration to Patrol constitutes an ‘adverse
action, '” and “[w]hether Defendant Elbin had
any involvement with Cooksey's termination.”
Id. at 1-2. Chief Elbin responded that Cooksey's
discovery request was overbroad and requested that the Court
enter a narrowly-tailored order limiting discovery to whether
Cooksey's transfer was the equivalent of a discharge.
Def.'s Resp.  at 3. Chief Elbin pointed out that
“Cooksey's Complaint does not allege that Elbin
terminated Cooksey's employment.” Id.
Order  entered on November 17, 2017, the Magistrate Judge
denied Cooksey's Motion for Leave to Conduct Discovery,
finding that Cooksey “fails to even address the
Court's considerations relevant to determining the
necessity of immunity-related discovery.” Order  at
4. The Magistrate Judge noted that Cooksey did not argue or
explain how his Amended Complaint pleaded specific facts
which, if true, would overcome Elbin's qualified
immunity. Id. at 5.
objected to the Magistrate Judge's Order, maintaining
that he could not respond to the Motion for Summary Judgment
without conducting discovery into whether Cooksey's
transfer constituted an adverse action and whether Chief
Elbin was involved with Cooksey's termination. Pl.'s
Obj.  at 1, 7-8. On April 18, 2018, this Court found in
its Order  that Cooksey's Amended Complaint does not
contain any specific allegation that Chief Elbin terminated
him, but rather asserts that the City and other
administrators did. Order  at 11. The Court affirmed the
Magistrate Judge's denial of Cooksey's discovery
request on this issue. Id. The Court also agreed
with the Magistrate Judge's refusal to permit discovery
into the question of Cooksey's transfer because relevant
information regarding whether the reassignment was adverse to
Cooksey should be within Cooksey's own knowledge and
possession, and he failed to demonstrate a need for discovery
to oppose summary judgment on that claim. Id. at 12.
The Court ordered Cooksey to respond to Chief Elbin's
Motion for Summary Judgment. Id. at 13-14.
response to the Court's Order, on May 13, 2018, Cooksey
filed a Response in opposition to the summary judgment
motion, asserting that his transfer to Captain of Patrol
constituted an adverse employment action because such
position is less prestigious, involves fewer duties, and
provides less room for advancement. Pl.'s Mem.  at 7.
Furthermore, according to Cooksey, Chief Elbin uses such
transfers as punishment. Id. at 5-6. Cooksey also
argues that whether Chief Elbin caused his termination
remains a disputed question of fact, as evidenced by
Cooksey's allegations that Chief Elbin was involved with
the investigation that led to Cooksey's termination and
that it is City policy that Chief Elbin approve any decision
to terminate a police officer. Id. at 8-9.
Elbin maintains in his Reply that the Amended Complaint's
bald allegations, conclusory statements, and broad
accusations against all Defendants fail to meet the
heightened pleading standard necessary to overcome qualified
immunity. Reply  at 2-3.
Cooksey's Motion ...