     Case: 09-60691     Document: 00511187515          Page: 1    Date Filed: 07/28/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            July 28, 2010

                                       No. 09-60691                         Lyle W. Cayce
                                                                                 Clerk



TAMMY WILLIAMS; EARL RUSSELL; CHERYL HAMBRICK,

               Plaintiffs - Appellees

v.

Sheriff JAMES A. RILEY, In His Official and personal capacities; STEVE
ATKINSON, Individually and in His Official Capacity as Deputy Sheriff and
Jail Administrator of Desoto County, Mississippi; LARRY GATLIN,
Individually and in His Official Capacity as Deputy Sheriff and Jail
Administrator of Desoto County, Mississippi,

               Defendants - Appellants




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:05-CV-83


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
        This suit is brought by three prison officials who allege they were fired
because they reported a case of prisoner abuse. We conclude that an earlier



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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panel’s conclusion that questions of fact are present is the law of this case. We
therefore dismiss this appeal.


               I. FACTS AND PROCEDURAL BACKGROUND
      Tammy Williams, Earl Russell, and Cheryl Hambrick (collectively “the
plaintiffs”) were jailers at the DeSoto County Jail, with Russell serving as a
Sergeant and direct supervisor of Williams and Hambrick. On December 27,
2004, Williams and Hambrick saw Sergeant Stephen Winters involved in a
physical altercation with a prisoner, Victor Dockery. According to Williams,
when Williams and Hambrick entered the jail, Winters was hitting Dockery, who
was backed into the corner of an open jail cell. Williams and Hambrick entered
the cell, diffused the situation, and handcuffed Dockery with his hands behind
his back. Once Dockery was handcuffed, Williams and Hambrick stepped away.
Winters then allegedly grabbed Dockery and began slamming his head against
the wall. Williams attempted to stop Winters, but Winters continued beating
Dockery against the wall. Eventually Winters stopped.
      Williams and Hambrick verbally reported the incident to Russell. Russell
told Williams and Hambrick to speak with Captain Brenda Stewart. Stewart
advised Williams and Hambrick to write a report regarding the incident. The
plaintiffs collectively had concerns about reporting the incident because they
believed it was the jail administrator’s tacit policy, contrary to the written policy,
to discourage jailors from reporting cases of prisoner abuse. The plaintiffs
reached this conclusion because another employee had been fired two months
earlier for reporting that Winters assaulted an inmate. Moreover, the plaintiffs
assert that Hambrick’s husband, a former employee of the jail, had been told
while working at the jail to falsify a report regarding a physical altercation with
an inmate in order to cover up what might be considered inmate abuse. Despite
their concerns about reporting the incident between Winters and Dockery,

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Williams and Hambrick wrote the report and placed it under the Jail
Administrator Steve Atkinson’s office door on December 28, 2004.
      The following day all three plaintiffs were written up for allegedly failing
to properly perform their duties. Separate disciplinary hearings were held for
each of the plaintiffs on December 29, 2004. Following the hearings, all three
plaintiffs were immediately fired the same day.
      In April 2005, the plaintiffs filed an action under 42 U.S.C. § 1983, seeking
damages, against the Sheriff of DeSoto County, James A. Riley, and the Deputy
Sheriffs and Jail Administrators, Steve Atkinson and Larry Gatlin, in their
individual and official capacities (collectively “the defendants”). The plaintiffs’
§ 1983 action alleged, among other things, that they were fired in retaliation for
exercising their First Amendment rights. In response, the defendants filed a
motion to dismiss based on qualified immunity. The district court denied the
defendants’ motion to dismiss, stating that assuming the defendants “rigged the
outcome of the plaintiffs’ disciplinary hearing,” the court could not possibly
conclude that the defendants “acted reasonably under the circumstances.”
Williams v. Riley, 2006 U.S. Dist. LEXIS 46697, at *3 (N.D. Miss. 2006).
      Following the district court’s denial of the defendants’ motion to dismiss,
the Supreme Court issued Garcetti v. Ceballos, 547 U.S. 410, 424 (2006), in
which it held that “the First Amendment does not prohibit managerial discipline
based on an employee’s expressions made pursuant to official responsibilities.”
However, the Court noted that “[s]o long as employees are speaking as citizens
about matters of public concern, they must face only those speech restrictions
that are necessary for their employers to operate efficiently and effectively.” Id.
at 419. In determining whether employees were speaking as citizens or as
pursuant to their official responsibilities, the Court stated:
      We reject, however, the suggestion that employers can restrict
      employees’ rights by creating excessively broad job descriptions.


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       The proper inquiry is a practical one. Formal job descriptions often
       bear little resemblance to the duties an employee actually is
       expected to perform, and the listing of a given task in an employee’s
       written job description is neither necessary nor sufficient to
       demonstrate that conducting the task is within the scope of the
       employee’s professional duties for First Amendment purposes.


Id. at 424–25.
       After Garcetti, the defendants filed a motion to reconsider their previous
12(b)(6) motion to dismiss. The defendants cited the DeSoto County Sheriff’s
Operations Policy and Procedures manual (“Policy and Procedures manual”) as
imposing an official duty on the plaintiffs to “immediately report to the
Department upon learning of any violation of established policies, procedures,
guidelines and regulations or any other improper conduct which is contrary to
the policy, orders, or directives of the Department . . . .” Defendants alleged that
based on this duty, the plaintiffs’ speech was not protected by the First
Amendment under Garcetti and they were entitled to qualified immunity.1 The
plaintiffs responded by contesting whether they had an actual duty to report the
incident, arguing that the tacit and enforced policy of the jail was opposite to the
jail’s written policy. Though “gravely troubled” by the outcome, the district court
found that Garcetti precluded the plaintiffs from recovering when their
statements were made pursuant to their official duties. Williams v. Riley, 481
F. Supp. 2d 582, 584–85 (N.D. Miss. 2007). Relying on the Policy and Procedures
manual, the district court found that it was part of the plaintiffs’ official duties
to report the unlawful conduct of other jail employees. Id. at 584. Therefore, the



       1
         There is a two-step inquiry for resolving government officials’ qualified immunity
claims: (1) a court must decide whether the facts alleged or shown are sufficient to make out
a violation of a constitutional right; (2) the court must decide whether the right at issue was
“clearly established” at the time of the defendants’ alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). Thus, if no constitutional violation is present, a government official is
entitled to qualified immunity.

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district court granted the defendants’ motion to dismiss the case with prejudice
under Rule 12(b)(6). Id. at 585.
      The plaintiffs appealed the district court’s dismissal.       This court in
Williams v. Riley, 275 F. App’x 385, 389 (5th Cir. 2008) (Williams I)
(unpublished) (per curiam) vacated the district court’s dismissal of the First
Amendment claims, finding that there was a genuine issue of material fact as
to whether the report was made “pursuant to [the plaintiffs’] official duties”
because it was unclear whether filing reports about physical altercations
between jail employees and prisoners was part of the official duties of the
plaintiffs. “Although it may be presumed that an employee’s official job duties
at a reasonable sheriff’s department would include reporting crimes perpetrated
at work by department members, it is not clearly so here.” Id. As such, the
Williams I court remanded the plaintiffs’ claim for further proceedings.
      After taking discovery, the defendants filed a motion for summary
judgment. The defendants asserted that the plaintiffs admitted that the Policy
and Procedures manual required them to report incidents like the one that
occurred between Winters and Dockery. Therefore, the defendants re-asserted
that the plaintiffs’ speech was not protected by the First Amendment under
Garcetti and they were entitled to qualified immunity.
      The district court denied the defendants’ motion for summary judgment,
stating that the plaintiffs demonstrated a triable issue of fact with regards to
their claims against the defendants.        The triable issue of fact was, as the
Williams I panel held, whether the report was made pursuant to the plaintiffs’
official duties.
      The defendants timely filed the instant appeal of the denial of their motion
for summary judgment based on qualified immunity. In response, the plaintiffs
filed a motion to dismiss the appeal for lack of appellate jurisdiction, arguing



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that a denial of qualified immunity based on factual disputes is not immediately
appealable under the collateral order doctrine.


                         II. STANDARD OF REVIEW
      The court reviews the district court’s summary judgment decision de novo.
Tarver v. City of Edna, 410 F.3d 745, 749 (5th Cir. 2005) (citations omitted). In
making this determination, the court reviews the facts in the light most
favorable to the nonmoving party. Id. (citation omitted).


                                III. ANALYSIS
      “[A] district court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the
meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (emphasis added). However,
      A district court’s decision to deny qualified immunity on a motion
      for summary judgment is “not appealable if [it is] based on a claim
      regarding the sufficiency of the evidence . . . . Therefore, if the
      district court concludes that the summary judgment record raises
      a genuine issue of material fact with respect to whether . . .
      qualified immunity is applicable, then that decision is not
      immediately appealable . . . .”

Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (citing Palmer v. Johnson,
193 F.3d 346, 350 (5th Cir. 1999)).
      It is well established that an appellate court decision establishes “the law
of the case” which must be followed in all subsequent proceedings in the same
case in the trial court or on a later appeal in the appellate court unless: “(1) a
subsequent trial produces substantially different evidence, (2) controlling
authority has since made a contrary decision of law applicable to such issue, or
(3) the prior decision was clearly erroneous and would work manifest injustice.”



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EEOC v. Int’l Longshoremen’s Assoc., 623 F.2d 1054, 1058 (5th Cir. 1980)
(citations omitted). See also Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co.
of Am., 272 F.3d 276, 279 (5th Cir. 2001); Browning v. Navarro, 887 F.2d 553,
556 (5th Cir. 1989).
      In Williams I, this court clearly concluded that whether the plaintiffs’
report was made “pursuant to their official duties” was a question of fact. 275
F. App’x at 389.    Thus, this is the law of the case unless one of the above
exceptions applies. The only exception that could apply is the first exception,
that a subsequent trial has produced substantially different evidence. In this
case, however, the parties presented no substantially different evidence in the
papers supporting the motion for summary judgment. The defendants continued
to rely on the Policy and Procedures manual as evidence that it was within the
plaintiffs’ job description and duties to report the altercation. Although the
defendants argue that the depositions of the plaintiffs taken during discovery is
new evidence that supports the position that it is the jail’s policy to require the
reporting of any crimes perpetrated by employees, we disagree.            In their
depositions, the plaintiffs asserted that they were told “what happens in the jail
stays in the jail” and that if they “would be humble and not open [their]
mouth[s]” about the incident with Winters and Dockery, they would not lose
their jobs. The plaintiffs further stated that at least one employee had been
fired for reporting that Winters beat up an inmate, and that at least one
employee had been directed to falsify a report regarding a physical altercation
between a prisoner and a jail employee. The plaintiffs’ depositions provide no
new, substantially different evidence to render the law of the case inapplicable.
Thus the law of the case—that whether the plaintiffs made their report pursuant
to their official duties is a question of fact—must stand. It follows that the
district court’s order denying qualified immunity to the defendants was based



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on the conclusion that a question of fact was present. The order is therefore not
appealable.2


                                      CONCLUSION
       For the above reasons, we GRANT the plaintiffs motion to dismiss this
appeal for lack of jurisdiction and DISMISS the defendants’ appeal.


       GRANTED and
       DISMISSED.




       2
         The jurisdictional question in this case asks whether a material dispute of fact exists,
and we honor the first panel’s conclusion that it does. It described the fact question as
“whether the speech was made pursuant to Plaintiffs’ job duties.” Williams I, 275 F. App’x at
390. But this was not an effort to phrase the Rule 49 interrogatory to be put to the jury. We
leave it to the district court to decide how best to frame the question to the jury.
        It is clear to us that Garcetti would not allow employers to create a formal policy, fire
employees for following that policy, and then obtain protection from retaliation claims by
asserting a qualified immunity defense – claiming a First Amendment free fire zone. Indeed,
terminating an employee for doing exactly what he is told puts at issue whether the conduct
was in fact pursuant to “official responsibilities.”

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