     Case: 12-60401       Document: 00512347712         Page: 1     Date Filed: 08/20/2013




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

                                                                            FILED
                                                                          August 20, 2013

                                      No. 12-60401                         Lyle W. Cayce
                                                                                Clerk

MARK A. ANDERSON,

                                                         Plaintiff - Appellant

v.

CITY OF MCCOMB, MISSISSIPPI;
GREGORY MARTIN,

                                                         Defendants - Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-617


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Former policeman Mark Anderson (“Anderson”), who accumulated over
twenty years of service as a law enforcement officer in Mississippi, filed suit
against the City of McComb and former police chief Martin (collectively, the
“City”), and several unidentified defendants after he lost his job effective August
2009. We have read the briefs, heard oral argument, scrutinized pertinent parts


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 12-60401     Document: 00512347712      Page: 2   Date Filed: 08/20/2013



                                  No. 12-60401

of the record, and carefully considered the district court’s thorough order
granting summary judgment for the defendants on his claims. On his procedural
due process claims, we reverse and remand because facts material to Anderson’s
status and rights are disputed and confusing.
      In an atmosphere of animosity between McComb’s then-mayor and
then-police chief, Anderson was something of a pawn according to the record.
When the police chief ordered him to work a long, late August weekend,
Anderson declared to the City’s personnel director, Ms. Isaac, his intention to
use his accumulated leave and retire, or to “contemplat[e] retirement.”
Together, they ascertained his eligibility for state retirement benefits. Ms. Isaac
quickly conveyed the information to City Administrator Lockley (“Lockley”), who
interpreted the conversation as Anderson’s intent to resign immediately. (At his
deposition, Lockley was testy when asked to explain the difference between
retirement and resignation.) Lockley informed Chief Martin that Anderson had
resigned, and Martin apparently was all too willing to have Anderson gone from
the force. Anderson, in the meantime, contacted the Mayor, who urged him to
reconsider retirement. Anderson did not work as assigned on the weekend of
August 28. At a Board of Selectmen meeting on September 8, the Mayor
announced that Anderson had decided not to retire. Lockley later informed the
Board, which has hiring and firing responsibilities over the police force, that to
re-employ Anderson, given his “voluntary” separation, they would have to
reinstate him at another Board meeting. That meeting occurred on September
22, but Anderson did not attend.
      On September 16, pursuant to the Mayor’s endorsement of his continued
employment, Anderson showed up for his usual shift duty at 5:30 a.m., retrieved
a City patrol car, and was out at work until Chief Martin procured a warrant for
his arrest for unauthorized use of an official vehicle and impersonating a police
officer. Anderson was arrested, released on bond, and underwent trial. The

                                        2
    Case: 12-60401      Document: 00512347712    Page: 3   Date Filed: 08/20/2013



                                 No. 12-60401

state judge, however, remitted the charges against him “to the file” in order not
to damage his career.
      Anderson has received neither his accumulated leave pay nor disputed
salary nor retirement benefits, and of course, he has not since worked for the
City. His lawsuit included constitutional and state law claims. On appeal are
the claims for unconstitutional false arrest on September 16 and for due process
violations in the manner of his separation from the force, as well as Anderson’s
challenge to the district court’s exclusion of a proffered expert witness.
      1. False Arrest
      A § 1983 constitutional claim of false arrest without probable cause is
cognizable, Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992), but the
approval of a warrant by an independent magistrate judge or like official “breaks
the causal chain and insulates the initiating party” from liability. Hand v. Gary,
838 F.2d 1420, 1427 (5th Cir. 1988)(emphasis and internal quotation marks
omitted). On the other hand, if the person procuring the warrant makes an
intentional and knowing false statement, or acts recklessly in disregard of the
truth, the intermediary’s deliberations may be tainted. See, e.g., Deville v.
Marcantel, 567 F.3d 156,170 (5th Cir. 2009); Hale v. Fish, 899 F.2d 390, 400 n.3
(5th Cir. 1990).
      Anderson contends that Chief Martin swore falsely that his employment
had terminated, when he should have known Anderson’s position that he had
not in fact retired or resigned. Like the district judge, we are persuaded there
is insufficient evidence to show that Chief Martin deliberately made knowingly
false statements or disregarded the truth when he asserted, for purposes of the
arrest warrant, that Anderson was no longer employed by the City. There is
plainly room to disagree on Anderson’s employment status as of September 16;
consequently, Chief Martin cannot be responsible for representing one version



                                        3
    Case: 12-60401       Document: 00512347712   Page: 4   Date Filed: 08/20/2013



                                  No. 12-60401

of the disputed facts to the magistrate judge. Summary judgment was properly
granted on this claim.
      2. Due Process
      Anderson maintains, and the City does not deny, that he had a property
right in continued employment as a civil servant in Mississippi. See Miss. Code
Ann. §§ 21-31-21 and 21-31-23 (1972). He could not be involuntarily terminated
without procedural due process protections. See, e.g., Nichols v. City of Jackson,
848 F. Supp. 718, 721 (S.D. Miss. 1994). Further, his employment with the City
could end in only three ways: by resignation, retirement, or termination.
      Each of these characterizations of the events carries somewhat different
consequences. If Anderson voluntarily resigned, he would not be entitled to due
process protections, though he should have received his accumulated vacation
and sick pay and salary until the actual date of separation. Lockley interpreted
Anderson’s actions of August 27 as an immediate voluntary resignation,
however, Anderson apparently never received the accumulated leave pay. If
Anderson retired, he would have been entitled to significant state retirement
benefits for his long public service career, but no such benefits have been
forthcoming. Yet the City asserted to the district court and this court that
Anderson “told the city he was retiring” and contended that by his unilateral
action he waived any procedural due process rights he may have had. Finally,
if Anderson correctly asserts, and a jury finds, that he never really intended to
retire, despite his initial impulsive statements, his separation must be viewed
as a termination from employment.           Termination, as noted, must be
accompanied by pre-deprivation notice of the basis for adverse action and an
opportunity for the employee to be heard.
      The district court held that because Anderson was neither removed nor
discharged, he was not entitled to notice or a hearing. Based on this confusing
record, we must disagree. There is a genuine, material fact issue whether he

                                        4
     Case: 12-60401       Document: 00512347712          Page: 5     Date Filed: 08/20/2013



                                       No. 12-60401

was discharged. Unlike the case relied on by the City, Cross v. Monett R-I Bd.
of Educ., 431 F.3d 606 (8th Cir. 2005), Anderson submitted no letter or formal
document indicating his intent to retire or resign. City officials interpreted his
actions differently among themselves and issued no official declaration
concerning his “resignation” until September 23.1 If the City’s actions amount
to a discharge, then it is doubtful whether he received sufficient process. The
City contends he received “notice” that Chief Martin and Lockley considered him
no longer to be an employee, and he had an “opportunity” to challenge his
dismissal at the September 22 Board meeting. Cf. Wilson v. UT Health Ctr.,
973 F.2d 1263, 1270 (5th Cir. 1992)(notice and an opportunity to respond fulfill
public employer’s due process duty to a tenured employee). By the time of the
September 22 meeting, however, Anderson had been arrested and charged over
his attempted return to work. In the absence of formal notice, he may have
considered the agenda item concerning his further employment to be superseded.
We cannot speculate further on the merits of Anderson’s due process claim.
After trial on the issue of discharge, the district court may have to reconsider the
claim on a complete record, sensitive to the credibility of the witnesses.2




       1
         Anderson claims not to have received a September 4 letter from Chief Martin
instructing him to clear out his locker and return Police Department property—the letter was
addressed to an incorrect zip code.
       2
          The City asserts that even if his termination violated procedural due process,
Anderson has not established a predicate for municipal liability, inasmuch as he did not offer
proof on summary judgment of a custom or policy that was the moving force of a constitutional
violation. See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036
(1978). On the contrary, as the district court noted, his termination on the existing record may
have been produced by Chief Martin, a policymaker, and it was in essence endorsed by the
Board’s official action in calling the events a “resignation.” When the policymakers are the
violators, no further proof of municipal policy or custom is required. Pembaur v. City of
Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299 (1986).

                                               5
    Case: 12-60401    Document: 00512347712     Page: 6   Date Filed: 08/20/2013



                                No. 12-60401

      3. Exclusion of Expert Witness
      Anderson offered a report and affidavit by Professor Byron D’Andra Orey,
Political Science Department Chair at Jackson State University. The district
court granted the City’s motion to strike the proffered testimony because it
amounted to no more than the professor’s personal interpretation of the evidence
that the jury would hear and the professor’s conclusions on the ultimate issues
in the case, while it offered no expertise in the matters it covered.       The
professor’s testimony was not based on his undoubted political science expertise
but instead on his uncredentialed conclusions about the arrest warrant and
Anderson’s employment status.       He did not have professional expertise
concerning police procedure or civil service employment. The court did not abuse
its discretion by refusing to admit this as expert testimony pursuant to
F.R.E. 702.
                                 Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED IN PART, REVERSED and REMANDED IN PART.




                                       6
