Brian Scott Dunn v. Sheriff Morgan Millirons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1492
BRIAN SCOTT DUNN,
Plaintiff - Appellee,
v.
SHERIFF MORGAN MILLIRONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief District
Judge. (7:14-cv-00429-GEC)
Submitted: December 16, 2016 Decided: February 1, 2017
Before MOTZ, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jim H. Guynn, Jr., GUYNN & WADDELL, P.C., Salem, Virginia, for
Appellant. Thomas E. Strelka, L. Leigh Rhoads Strelka, STRELKA
LAW OFFICE, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sheriff Morgan Millirons appeals the district court’s order
denying in part his motion for summary judgment on the ground of
qualified immunity with respect to Bryan Scott Dunn’s First
Amendment claim under 42 U.S.C. § 1983 (2012). Millirons contends
that any constitutional protection afforded Dunn’s speech was not
clearly established at the time Dunn’s employment was terminated.
We have jurisdiction over this appeal because the order
denying qualified immunity is considered a final decision under 28
U.S.C. § 1291 (2012) where, as here, the matter turns on a question
of law and not on material facts. See Ashcroft v. Iqbal, 556 U.S.
662, 671-72 (2009); Hunter v. Town of Mocksville, 789 F.3d 389,
400 (4th Cir. 2015), cert. denied, 136 S. Ct. 897 (2016). We
review de novo a district court’s order determining summary
judgment on the basis of qualified immunity. Durham v. Horner,
690 F.3d 183, 188 (4th Cir. 2012).
In deciding whether a defendant is entitled to summary
judgment on the basis of qualified immunity, “courts engage in a
two-pronged inquiry.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir.
2015). The first prong “asks whether the facts, viewed in the
light most favorable to the plaintiff, show that the [defendant]’s
conduct violated a federal right.” Id. The second prong “asks
whether the right was clearly established at the time the violation
occurred such that a reasonable person would have known that his

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conduct was unconstitutional.” Id. “To be clearly established,
a right must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.
In other words, existing precedent must have placed the statutory
or constitutional question beyond debate.” Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012) (brackets, citation, and internal
quotation marks omitted).
Under either prong of the inquiry, “courts may not resolve
genuine disputes of fact in favor of the party seeking summary
judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). “The
purely legal question of whether the constitutional right at issue
was clearly established is always capable of decision at the
summary judgment stage, but a genuine question of material fact
regarding whether the conduct allegedly violative of the right
actually occurred must be reserved for trial.” Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006) (alterations and internal
quotation marks omitted).
We have reviewed the claims raised in the parties’ briefs and
the record on appeal and find no reversible error in the district
court’s conclusion that Sheriff Millirons is not entitled to
qualified immunity. Accordingly, we affirm for the reasons stated
by the district court. Dunn v. Millirons, No. 7:14-cv-00429-GEC
(W.D. Va. Mar. 31, 2016). We dispense with oral argument because
the facts and legal contentions are adequately presented in the

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materials before this court and argument would not aid the
decisional process.
AFFIRMED

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