Opinion
Civil Action 98-2047 SECTION: "J"(1)
July 21, 2000
The following motions are before the Court: (1) plaintiff's Motion for Review of Magistrate's Order (Rec. Doc. 35), originally set for hearing June 9, 1999 (2) defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Rule 12(b)(6) and Motion to Dismiss Pursuant to Rule 12(b)(4)(5) for Insufficiency of Process, and Insufficiency of Service of Process ("Motion to Dismiss") (Rec. Doc. 53), set for hearing June 7, 2000; and (3) plaintiffs Motion to Extend Time for Making Service on Defendants in Civil Action Number 99-1471 (Rec. Doc. 56), set for hearing June 21, 2000. Defendants' Motion to Dismiss and plaintiffs Motion for Review are opposed. These matters are before the Court on briefs without oral argument.
As noted, this motion was originally set for hearing June 9, 1999; however, this consolidated matter was stayed on June 4, 1999, five days before the hearing date. In both her motion to extend time for service and in her opposition to defendants' motion to dismiss, plaintiff re-urges her Motion for Review. Since defendants filed a formal opposition to plaintiff's Motion to Review (Rec. Doc. 39) on June 1, 1999, and also responded in brief in its Motion to Dismiss, the Court takes up the motion at this time.
BACKGROUND
Plaintiff filed the present action to recover damages resulting from alleged violations of her civil rights, pursuant to 42 U.S.C. § 1981, 1983, and 1985. Specifically, plaintiff alleges she was fired from her position as a Family Security Program Specialist II in the Job Opportunities and Basic Skills Training Department of the Louisiana Department of Social Services, Office of Family Support, Orleans Region because of her participation "in public speech on issues of welfare reform and welfare related matters at Southern University of New Orleans (SUNO)." (Complaint, ¶ 8.)
Plaintiff's initial Complaint named defendants in their official capacity. In response, defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, Motion for Judgment on the Pleadings, Alternatively Motion for More Definite Statement and/or Schultea Reply. In a minute entry dated March 2, 1999, the Court ordered plaintiff to submit a more factually specific response, or Schultea reply, to defendants' claim of qualified immunity. After receiving plaintiffsSchultea reply, the Court, in a minute entry dated May 19, 1999, denied defendants' Motion to Dismiss, finding that plaintiff alleged sufficient facts to overcome a motion to dismiss based on qualified immunity.
See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) ("When a public official pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail.").
On March 26, 1999, plaintiff filed a Motion to Amend her Complaint with the Magistrate, seeking to proceed against the defendants in their individual capacities. The Magistrate denied the motion in a minute entry dated May 10, 1999 because it was untimely filed and extremely close to the then June 7, 1999 trial date. Plaintiff subsequently filed with this Court a Motion to Review the Magistrate's Order, effectively appealing the magistrate's ruling, which was set for hearing on June 9, 1999. Plaintiff also filed a new Complaint with the Court, Meekins v. Foster, 99-1471, (hereinafter Meekins II) which named the defendants in their individual capacity as well as official capacity. Meekins II was consolidated with the initial action (Meekins I) on June 15, 1999.
After the denial of their Motion to Dismiss, defendants' perfected an interlocutory appeal on the issue of qualified immunity in Meekins I, and this Court stayed the consolidated action. The Fifth Circuit dismissed plaintiffs damages claim against defendants in their official capacity, acknowledging that defendants were sued only in their official capacity.Meekins v. Foster, No. 99-30583, at 6-7 (5th Cir. April 3, 2000) (unpublished opinion). This left injunctive relief as the only relief sought in Meekins I. The Fifth Circuit expressly refused to rule on any aspect of Meekins II, reasoning that this Court had not made a ruling which was before it. Id. at 6.
After the Fifth Circuit's mandate, this Court re-opened the consolidated matter, and returned it to the docket, although trial dates and court deadlines have yet to be set. Since the matter was reopened, defendants have filed the present Motion to Dismiss and plaintiff has filed her Motion to Extend Time for Making Service. The Court also now considers plaintiff's Motion for Review of Magistrate's Order which was set for hearing before the stay.
DISCUSSION
For the following reasons, the Court makes these rulings: (1) grants plaintiffs Motion for Review of Magistrate's Order, allowing plaintiff to amend her Complaint; (2) grants in part defendants' Motion to Dismiss, and plaintiff is granted 15 days from the entry of this order to further supplement or amend her original Complaint in civil action 98-2047 in order to reallege claims against the dismissed defendants; and (3) denies as moot plaintiffs Motion to Extend Time for Making Service.
I. Motion for Review of Magistrate's Order
In this motion, plaintiff moves the Court to reverse the Magistrate's denial of plaintiffs Motion to File a Second Amended Complaint which seeks to proceed against defendants in their individual capacities as well as official capacities. In a minute entry dated May 10, 1999, the Magistrate Judge denied plaintiffs Motion for Leave to file Second Amended Complaint citing as its sole reason plaintiffs untimely filing of the motion, April 26, 1999, in light of the looming pretrial conference date of May 18, 1999 and trial date of June 7, 1999. However, this consideration is no longer applicable since this matter was recently re-opened after the Court's June 4, 1999 stay, and a new trial date has not been set. Defendants will not be prejudiced by allowing plaintiff to amend her Complaint at this time. See FED. R. CIV. PROC. 15(a) (providing for amendment of pleadings upon leave of court or "when justice so requires"). Accordingly, the Court finds the Magistrate's Order to now be clearly erroneous, and plaintiff's Motion for Review of Magistrate's Order is GRANTED. See FED. R. Civ. PROC. 72(a). Plaintiff is GRANTED leave to file the second amended Complaint in C.A. 98-2047.
Since plaintiff has also represented to the Court in her pleadings that should the Court allow her to amend her Complaint, she would voluntarily dismiss without prejudice her second suit, see Opposition to Motion to Dismiss, at 4, ¶ 3, the Court Orders that civil action 99-1471 be dismissed without prejudice.
II. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Rule 12(b)(6) and Motion to Dismiss Pursuant to Rule 12(b)(4)(5) for Insufficiency of Process, and Insufficiency of Service of Process
In these motions, defendants move to dismiss Meekins II as a matter of law for a number of reasons: (1) plaintiff's Complaint in Meekins II was an impermissible means of circumventing the Magistrate's denial of her Motion to Amend; (2) Meekins II should be dismissed because service of the Complaint was not made within the 120 days mandated under Rule 4(m); and (3) plaintiff has failed to allege facts which, if accepted as true, would defeat the defense of qualified immunity, as plaintiff's Complaint has failed to state the violation of a clearly established constitutional right. Given the Court's above rulings, allowing plaintiff to amend her original Complaint in civil action 98-2047 and dismissing civil action 99-1471, defendants' first two arguments are moot.
Although the Court has dismissed civil action 99-1471, mooting any distinction between Meekins I and Meekins II, the Court maintains this distinction for purposes of consistency and clarity in discussing the present motions.
Defendants provide alternative grounds for their third argument that they are shielded from liability by the doctrine of qualified immunity. First, as it applies to all the defendants, plaintiff's Complaint fails to adequately plead the violation of a clearly established First Amendment right of a public employee. Alternatively, as it applies to defendants Governor M.J. Foster, Secretary Madlyn Bagneris, and Assistant Secretary Vera Blakes, plaintiff's Complaint fails to allege a custom, policy, or practice which would directly impose liability upon them.
In their first qualified immunity argument, defendants argue essentially the same reasons previously put forth in the denied Motion to Dismiss which gave rise to the Fifth Circuit appeal in Meekins I. Defendants again argue that (a) plaintiff has not provided specific allegations to support her claim that she was fired due to her speech at SUNO because she has not made a showing that her speech was a matter of public concern and (b) that her Complaint fails to allege the violation of a clearly established constitutional right because, as a public employee, her First Amendment rights are determined by a balancing test which can rarely be considered clearly established absent closely analogous precedent.
The Court's May 19, 1999 minute entry which denied defendants' first Motion to Dismiss, although applying to plaintiff's claim against defendants in their official capacity, is equally applicable and controlling of defendants' arguments concerning qualified immunity and sufficiency of the claims levied against them in their individual capacities. In that minute entry, the Court engaged in an analysis of plaintiffs initial Complaint and conducted a qualified immunity analysis. Furthermore, the factual allegations contained in the initial Complaint are used for the amended Complaint, which simply adds a sentence pronouncing the defendants as sued in their individual capacities. As such, the Court expressly adopts that reasoning and applies it to the present Motion to Dismiss:
In its review of the Court's May 19, 1999 minute entry, the Fifth Circuit expressly stated that it did not consider any issues concerning plaintiff's claims against defendants in their individual capacities as filed under civil action 99-1471. Meekins, No. 99-30583, at 6-7.
Given the Court's above ruling allowing plaintiff to amend her Complaint, the Court may also look to plaintiff's previous Schultea reply in determining whether defendants may avail themselves of qualified immunity.
Defendants argue that plaintiff has not provided specific allegations to support her claim that she was fired due to her speech at SUNO. While plaintiff's Complaint is somewhat vague as to the allegations regarding speech for which she was allegedly fired, the Court concludes that, after a fair reading of the Complaint as a whole and plaintiff's Schultea reply, plaintiff has sufficiently alleged facts to state a claim for violation of her civil rights. She alleges that she was fired because she spoke out about welfare and welfare reform, and was critical of the way the state handled welfare reform.
Defendants also argue that plaintiff has failed to allege that defendants' acts violated a clearly established constitutional right, the first prong in the bifurcated qualified immunity analysis. Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir. 1993). To recover for a First Amendment retaliation claim, plaintiff must satisfy four elements. First, plaintiff must suffer an adverse employment decision. See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). Second, plaintiff's speech must involve a matter of public concern. See Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990) (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Third, plaintiff's interest in commenting on matters of public concern must outweigh the defendants' interest in promoting efficiency. Id. (citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Fourth, plaintiff's speech must have motivated the Defendants' action. Id. (citing Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
Defendants argue that because public employees' First Amendment rights are determined by a balancing test (the third element above), those rights can rarely be considered "clearly established" absent closely analogous precedent. However, the Fifth Circuit stated in Harris v. Victoria Independent School District, 168 F.3d 216 (5th Cir. 1999), another First Amendment claim case, that:
The Defendants are not insulated from their unconstitutional conduct merely because a balancing test is involved in our analysis. While employee speech cases are a likely vehicle for varied fact scenarios, the law is clearly established that a "mix of public and private speech" may be constitutionally protected.
Therefore, plaintiff has sufficiently alleged violation of clearly established law.Meekins v. Foster, No. 98-2047, at 2-4 (E.D. La. Minute entry dated May 19, 1999).
Harris also clarified that defendants will not be automatically entitled to qualified immunity if there is not a factually analogous case. Harris, 168 F.3d at 223-24. Instead, when a factually analogous case cannot be found, the qualified immunity analysis can shift focus to the second prong — whether the defendants' conduct was objectively reasonable. Id. at 223. This is the case especially where "a public employee can make a single statement both as an employee and as a citizen." Warnock v. Pecos County, Texas, 116 F.3d 776, 782 (5th Cir. 1997) (quoted in Harris, 168 F.3d at 224). However, because defendants do not argue the issue of whether their conduct was objectively reasonable, the Court is unable to rule on whether qualified immunity is proper at this time.
Defendants also argue that plaintiffs Complaint is legally insufficient because she has not shown that the speeches at SUNO addressed a matter of "public concern" or, assuming that plaintiffs speech did constitute a matter of public concern, that she has not clearly established that her interest in commenting on matters of public concern outweigh the defendants' interest in promoting efficiency. Although the issue of whether speech addresses a matter of public concern is a legal issue, it "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991) (emphasis added) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). Resolution of the balancing test between plaintiff's and defendants' interest can also involve delving into factual scenarios not properly addressed in a motion to dismiss.See. e.g., Pickering v. Bd. of Education, 391 U.S. 563, 568 (1968) (reviewing the balancing test upon the record of a full administrative hearing); Myers, 461 U.S. at 140-42. The Court, therefore, finds that these issues would be better addressed after a more fully developed record either on a motion for summary judgment or after a trial on the merits. Cf. Bradshaw v. Pittsburgh Indep. Sch. Dist., 207 F.3d 814 (5th Cir. 2000) (addressing issue of public concern from denial of motion for summary judgment); Denton v. Morgan, 136 F.3d 1038 (5th Cir. 1998) (addressing the issue of public concern on appeal from a jury verdict);Davis v. Ector County, 40 F.3d 777, 782 (5th Cir. 1994) (addressing the issue of public concern on appeal from a jury verdict); Tompkins v. Vickers, 26 F.3d 603 (5th Cir. 1994) (addressing issue of public concern from denial of motion for summary judgment); Thompson v. City of Starkville, 901 F.2d 456 (5th Cir. 1990) (addressing issue of public concern from denial of motion for summary judgment); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794 (5th Cir. 1989) (addressing the issue of public concern on appeal from a jury verdict).
The motion's alternative basis for qualified immunity is asserted on behalf of defendants Governor Foster, Secretary Bagneris, and Assistant Secretary Blakes. Here, defendants argue that plaintiff has failed to sufficiently allege a causal connection between plaintiffs dismissal and these defendants' conduct. In other words, plaintiff has failed to allege a policy or practice which resulted in a depravation of her First Amendment right. The Court agrees that plaintiffs allegations are deficient in this regard and the motion to dismiss these defendants should be granted. However, plaintiff will be given an opportunity to further amend her original Complaint, within 15 days from entry of this order, to reallege her claims against the dismissed defendants with sufficient particularity.
III. Motion to Extend Time for Making Service on Defendants in Civil Action Number 99-1471
Due to the Court's above rulings, allowing plaintiff to amend her Complaint and dismissing civil action 99-1471, this motion is moot and, as such, should be denied.
Accordingly,
IT IS ORDERED that plaintiffs Motion for Review of Magistrate's Order should be and is hereby GRANTED and plaintiff is granted leave to file the second amended complaint in civil action 98-2047.
IT IS FURTHER ORDERED that civil action 99-1471 which was consolidated in this matter should be and is hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that defendants' Motion to Dismiss should be and is hereby GRANTED IN PART, dismissing plaintiff's claims against Governor Foster, Secretary Bagneris, and Assistant Secretary Blakes; in all other respects, defendants' Motion to Dismiss is DENIED. Plaintiff is granted 15 days from the entry of this order to further supplement or amend her original Complaint in civil action 98-2047 in order to reallege claims against the dismissed defendants.
IT IS FURTHER ORDERED that plaintiff's Motion to Extend Time for Making Service on Defendants in Civil Action Number 99-1471 should be and is hereby DENIED AS MOOT