United States District Court, N.D. Mississippi, Aberdeen Division
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT COURT JUDGE.
Garth filed his Complaint  in this Court on June 26, 2017,
alleging various Constitutional and Civil Rights violations
related to his termination as Principal for the Aberdeen
School District on June 2, 2017. Now before the Court is
Defendant Mac Curlee's Motion to Dismiss  on the
Basis of Qualified Immunity, Motion to Grant 
Defendant's Motion to Dismiss on the Basis of Qualified
Immunity as Confessed, and Defendants' Motion for Summary
and Procedural Background
2012, Governor Phil Bryant declared a state of emergency in
the Aberdeen, Mississippi School District due to poor student
performance and the District's inability to pay its
bills. When the Governor declares a state of emergency in a
school district, the Mississippi State Board of Education may
assign a conservator to the school district. Miss. Code Ann.
§ 37-17-6(12)(c)(ii). Once assigned, the conservator
acts as both the superintendent and the school board, and has
the authority to enter into contracts on behalf of the school
district. The conservator is then responsible for the
administration, management, and operation of the school
district. See Miss. Code Ann. § 37-17-6(15)(a).
Following the Governor's declaration, the Mississippi
Department of Education took control of the District and
appointed a conservator, Robert Strebeck, in 2012. In the
fall of 2013, Mac Curlee was appointed as conservator to the
Aberdeen School District. In July of 2014, Curlee hired the
Plaintiff, a black male, as the principal of Aberdeen High
1, 2016, the Mississippi Department of Education selected a
school board (“Board”) to serve in an advisory
capacity and undergo training prior to taking full control of
the District on July 1, 2017. In December 2016, the District
hired the Mississippi School Board Association
(“MSBA”) to assist with the District's search
for a new District superintendent for the 2017-2018 school
year, in anticipation of the District returning to local
control on July 1, 2017. The MSBA publicized the search and
received applications. During the search for a new
superintendent, the Plaintiff, while still working as
Principal, conveyed his interest in the superintendent
position to Curlee.
collecting the applications of interested parties, the MSBA
then presented the applications to the Board, which then
selected five candidates to interview. The Plaintiff was one
of the candidates selected for interviews. On May 9, 2017,
the Board met in executive session and unanimously chose Jeff
Clay, a white male, to serve as superintendent. At the time
of the Board's vote, the conservatorship was still in
place and the Board was acting solely in an advisory
capacity. See Miss. Code Ann. § 37-17-6(15)(a).
As Conservator, Curlee held the ultimate and singular
authority to select the new superintendent and, upon the
recommendation from the Board, Curlee selected Clay as the
superintendent for the 2017-2018 school year. Id.
11, 2017, at the request of the Board, Curlee met with the
Plaintiff to notify him of the selection of Clay as the new
superintendent. According to the Plaintiff, Curlee told the
Plaintiff that he expected him to encourage the
African-American community to accept Clay as the new
superintendent and to help smooth over his selection with the
African-American community. The Plaintiff expressed his
belief that Clay was the wrong choice and responded that it
was not his job to garner support for Clay in the local
community. District Counsel, Nathaniel Armistad, later met
with the Plaintiff who assured him that despite his opinions
on Clay's selection, he had no problems working with
11, Curlee also evaluated the Plaintiff's performance and
rated the Plaintiff at ¶ 3.68 on a 4.0 scale. Following
the evaluation, Curlee extended the Plaintiff a new contract
for the 2017-2018 school year, July 1, 2017, through June 30,
25, 2017, the District's CFO (Straughter-Campbell)
brought concerns with the Plaintiff's noncompliance with
the District's time trust system to Curlee. The
Plaintiff's issue with the Time Trust system arose
because instead of clocking himself in and out, the Plaintiff
frequently had Ilana Randle clock him in and out a total of
164 times between November 3, 2014, and June 3,
2017. See [55-18]. On June 2, 2017,
Curlee and Armistad met with the Plaintiff to discuss the
District's Time Trust system, which all District
employees were required to use to clock in and out. Curlee
asked the Plaintiff to explain why Randle was clocking him in
and out so frequently. After hearing the Plaintiff's
responses, Curlee gave the Plaintiff the option to either
resign or be terminated. The Plaintiff refused to continue
the conversation. Curlee terminated the Plaintiff on June 2,
2017, for violating District procedures regarding time clock
and payroll procedures. Specifically, Curlee terminated the
Plaintiff for “failure to refrain from falsifying
records (payroll/time sheet information) or directing others
to do so in violation of Standard 2.2(b) of the Mississippi
Code of Ethics.”
20, 2018, the Defendants' filed a Motion for Summary
Judgment  on all four of the Plaintiff's claims: 1)
Fourteenth Amendment procedural due process claim brought
under 42 U.S.C. § 1983, 2) race discrimination, 3) First
Amendment retaliation, 4) state law breach of contract. On
June 26, 2018, Defendant Curlee filed a Motion to Dismiss
 on the basis of qualified immunity on all four claims.
While the Motion  is styled as a motion to dismiss,
Curlee presented matters outside the pleadings and, as such,
the Court will consider the motion as one for summary
judgment. See Fed. R. Civ. P. 12(d). Because the
Plaintiff failed to file a response to Curlee's Motion,
Curlee filed a Motion to Grant  Defendant's Motion as
makes it clear that there is “no summary judgment by
default” and even a complete lack of a response by the
Plaintiff does not alter the Court's summary judgment
inquiry. See Fed. R. Civ. P. 56; Calais v.
Theriot, 589 Fed.Appx. 310, 311 (5th Cir. 2015);
Hibernia Natl. Bank v. Administracion Cent. Sociedad
Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P
56(a). 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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). The nonmoving party must then “go beyond
the pleadings” and “set forth ‘specific
facts showing that there is a genuine issue for
trial.'” Id. at 324, 106 S.Ct. 2548
normal “summary judgment burden of proof is altered in
the case of a qualified immunity defense.” Wolfe v.
Meziere, 566 Fed.Appx. 353, 354 (5th Cir. 2014) (citing
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.
2005); Bazan ex rel. Bazan v. Hidalgo Cnty., 246
F.3d 481, 489 (5th Cir. 2001)). Where a defendant seeks
dismissal based on qualified immunity, the complaint is
subject to a heightened pleading requirement, Schultea v.
Wood, 47 F.3d 1427, 1434 (5th Cir. 1995), as follows:
“‘[T]o survive [a motion to dismiss],' a
plaintiff must plead the defendant alleged constitutional
violations ‘with factual detail and particularity, not
mere conclusionary allegations.'” Wells v.
Newkirk-Turner, No. 3:13-CV-733-DPJ, 2014 WL 5392960, at
*3 (S.D.Miss. Oct. 22, 2014) (quoting Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir.
qualified immunity doctrine protects government officials
from civil liability for damages based upon the performance
of discretionary functions if the official's conduct did
not violate a clearly established constitutional or statutory
law of which a reasonable person would have known.
Pearson v. Callahan, 555 U.S. 223, 230, 129 S.Ct.
808 (2009); Crostley v. Lamar Cty., Texas, 717 F.3d
410, 422-24 (5th Cir. 2013) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982); Kinney v. Weaver, 367 F.3d 337,
346 (5th Cir. 2004)). “Qualified immunity gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When properly
applied, it protects all but the plainly incompetent or those
who knowingly violate the law.” Ashcroft v.
al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d
use a two-prong analysis to determine whether a defendant is
entitled to qualified immunity. The court must decide 1)
whether the plaintiff has alleged a violation of a
constitutional right and 2) whether the government official
acted objectively unreasonably in light of “clearly
established” law at the time of the incident.
Surratt v. McClarin, 851 F.3d 389, 392 (5th Cir.
2017), cert. denied sub nom. Surratt v. McClaran,
138 S.Ct. 147, 199 L.Ed.2d 37 (2017) (citing Freeman v.
Gore, 483 F.3d 404, 411 (5th Cir. 2007)). To be
“clearly established” for purposes of qualified
immunity, “[t]he contours of the rights must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Anderson v. Valdez, 845 F.3d 580 (5th Cir. 2016).
Defendants' Motion for Summary Judgment  and
Defendant Curlee's Motion to Dismiss  on the basis of
qualified immunity request summary judgment on the following
grounds. First, the Defendants' argue the Plaintiff
cannot show that the actions of Curlee violated his clearly
established right to Procedural Due Process. Second, the
Defendants' argue that the Plaintiff cannot established a
prima facie case of race discrimination claim under Section
1983 and argue that this claim must fail as a matter of law.
Third, the Defendants' argue that the Plaintiff failed to
support his First Amendment retaliation claim with competent
evidence. Finally, the Defendants' argue that the
Plaintiff cannot prove his state law breach of contract
Fourteenth Amendment Procedural Due Process Claim
Process Clause of the Fourteenth Amendment states, in
relevant part: “nor shall any State deprive any person
of life, liberty, or property, without due process of
law.” U.S. Const. Amend. XIV, § 1. To invoke the
protections of procedural due process a plaintiff must have
suffered a deprivation of life, liberty, or property.
Toler v. City of Greenville, No. 4:96-CV-34-D, 1997
WL 332168, at *3 (N.D. Miss. June 4, 1997) (citing
Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th
Cir. 1995); San Jacinto Sav. & Loan v. Kacal,
928 F.2d 697, 700 (5th Cir. 1991); Board of Regents v.
Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed. 548
(1972)). When a property interest is taken, “some form
of hearing is required” before a final ...