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Gibson v. Kilpatrick

United States Court of Appeals, Fifth Circuit

December 11, 2014

ANTHONY GIBSON, Plaintiff-Appellee Cross-Appellant
v.
JEFFREY KILPATRICK, in His Individual Capacity, Defendant-Appellant Cross-Appellee

Revised, January 2, 2015.

Page 662

[Copyrighted Material Omitted]

Page 663

Appeals from the United States District Court for the Northern District of Mississippi.

For ANTHONY GIBSON, Plaintiff - Appellee Cross-Appellant: Jim D. Waide, III, Esq., Waide & Associates, P.A., Tupelo, MS.

For JEFFREY KILPATRICK, in His Individual Capacity, Defendant - Appellant Cross-Appellee: Gary Erwin Friedman, Esq., Gregory Todd Butler, Esq., LaToya Cheree Merritt, Phelps Dunbar, L.L.P., Jackson, MS.

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

OPINION

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ON REMAND FROM THE UNITED STATES SUPREME COURT

KING, Circuit Judge:

The Supreme Court has vacated the judgment in this case and remanded for further consideration in light of Lane v. Franks, 573 U.S., 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). While serving as the Chief of Police in Drew, Mississippi, Anthony Gibson reported Mayor Jeffrey Kilpatrick to outside law enforcement agencies for misuse of the city gasoline card. Months later, Kilpatrick began issuing written reprimands to Gibson for a panoply of alleged deficiencies. Gibson subsequently filed a lawsuit alleging unconstitutional retaliation as well as state tort law claims. Kilpatrick moved for summary judgment, raising the defense of qualified immunity and arguing that the state tort law claims were barred because Gibson failed to comply with state notice requirements. The district court denied the motion with respect to qualified immunity, but granted it with respect to the state tort claims. Kilpatrick now brings this interlocutory appeal of the district court's order denying qualified immunity, and Gibson cross-appeals the district court's dismissal of one of his tort claims. Kilpatrick moves to dismiss the cross-appeal for lack of jurisdiction. We hold that Kilpatrick is entitled to qualified immunity and reverse the district court's order to the extent that it denied qualified immunity. Additionally, because we lack jurisdiction to hear Gibson's cross-appeal, we grant Kilpatrick's motion to dismiss the cross-appeal.

I. Factual and Procedural Background

In 2006, Anthony Gibson applied to be Chief of Police in Drew, Mississippi. Mayor Jeffrey Kilpatrick opposed Gibson's application and supported another candidate. The city's Board of Aldermen (" Board" ) rejected Kilpatrick's recommendation and hired Gibson in August 2006. As Chief of Police, Gibson reported directly to Kilpatrick and the Board.

Sometime within the first four months of Gibson's employment, a subordinate at the police department informed Gibson that Kilpatrick was misusing the city gasoline card to fuel his vehicle for personal trips. Gibson confidentially reported his suspicions to the Federal Bureau of Investigation

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(" FBI" ), Drug Enforcement Administration (" DEA" ),[1] Mississippi Office of the State Auditor (" OSA" ), and Mississippi Attorney General's Office. His reports to the FBI and DEA were through contacts with whom he had worked in an official capacity on prior occasions. The OSA initiated an investigation, and Gibson worked with Investigator Karen Swain to assist in the OSA's efforts. Because Kilpatrick had to come to the police department to obtain the gasoline card, Gibson was able to monitor Kilpatrick's activities. Gibson instructed two police dispatchers to make log entries every time Kilpatrick asked to use the card, and he ordered a police officer to observe Kilpatrick following receipt of the card. Gibson and Swain also directed the city clerk to monitor receipts from Drew's gasoline provider to compare them with the information recorded in the log. In September 2008, the investigation concluded, finding that Kilpatrick had misused the city gasoline card, and the OSA ordered Kilpatrick to repay approximately $3,000 to the City of Drew for his unauthorized use of the card.

Approximately nine months after the conclusion of the investigation, Kilpatrick began entering written reprimands into Gibson's personnel file. The first reprimand came on June 8, 2009, and the reprimands continued for over two years.[2] In addition to the reprimands, Kilpatrick recommended Gibson's termination to the Board on several occasions, including for insubordination, lack of visibility in the community, and failure to work an adequate number of hours.

On December 1, 2010, Gibson brought this action in federal court against Kilpatrick in his individual capacity, alleging violations of his First Amendment right to free expression under 42 U.S.C. ยง 1983, and malicious interference with employment and intentional infliction of emotional distress under Mississippi law. Less than a year later, on October 5, 2011, the Board voted to terminate Gibson's employment. Gibson subsequently amended his complaint to add the City of Drew as a ...


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