[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-15669

Non-Argument Calendar

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D.C. Docket No. 1:11-cv-21709-KMW

DENNIS REEVES, 

 Plaintiff-Appellant,

 versus

HORACE GRAHAM, 

MIAMI-DADE COUNTY, 

 Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 6, 2014)

Before WILSON, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM: 

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Dennis Reeves sued Horace Graham and Miami-Dade County under 42 

U.S.C. § 1983, alleging retaliatory discharge in violation of the First Amendment. 

Reeves alleged that he was terminated from his position as a Metrorail security 

guard because he reported what he believed to be the use of excessive force by a 

local police officer. Both defendants moved for summary judgment. The district 

court granted both motions on the ground that Reeves made the report not as a 

citizen but “pursuant to [his] official duties.” Garcetti v. Ceballos, 547 U.S. 410, 

421, 126 S. Ct 1951, 1960 (2006). Reeves appealed. We agree that neither 

defendant is liable, on the alternative grounds of qualified immunity and failure to 

establish municipal liability. 

I.

Reeves worked as a private security guard for a government subcontractor

providing security services at Metrorail stations in Miami-Dade County. Reeves 

testified that, as part of his job, he was required to monitor the sidewalk and street 

adjacent to the Metrorail station to which he was assigned, in order to ensure the 

safety of incoming and outgoing patrons. While on duty one evening, Reeves 

observed a local police officer using what Reeves believed to be excessive force 

during a traffic stop across the street from the Metrorail station. Reeves allegedly 

yelled out to the officer, who stopped, and then called police dispatch using his 

personal cell phone in order to report the incident. Reeves then called his 

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supervisor, allegedly so that he could be relieved while he spoke with an Internal 

Affairs officer who was en route. 

Within fifteen days, Reeves had been removed from duty on the orders of 

Graham, a mid-level employee with the Miami-Dade Transit Agency.

1

 Graham 

had the authority to order Reeves’s removal pursuant to a contract between the 

County and the security contractor.2

 Reeves contends that he was removed from 

duty because his report created friction with local police. 

The parties dispute the extent to which Reeves was required to report offpremises incidents as part of his job. It is undisputed that Reeves was required to 

report on-premises criminal activity, by two-way radio, to the security contractor’s 

dispatch office. One of Reeves’s superiors testified that Reeves was also required 

to report serious off-premises incidents so that the appropriate public safety agency 

could be notified. Reeves testified that he had only a “civic duty” to report offpremises incidents, and that he was permitted to contact the appropriate public 

safety agency directly. He has not disputed, however, that he was at least 

 1 Graham’s title was “Security Manager.” He reported to the Security Chief, who reported 

to the Director. The Director of the agency, in turn, reported to the Assistant County Manager, 

who reported to the County Manager. 

2 A provision in the contract reserved to the County the “right to have the vendor relieve 

any employee from a duty assignment, and/or bar the employee from further service under the 

Contract at the discretion of the County Contract Administrator or designee.” Graham testified 

that he was the “designee.”

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permitted to report off-premises incidents through the security contractor’s 

dispatch office.

3

 

II.

“We review a district court order granting summary judgment de novo, 

viewing the evidence and all reasonable inferences drawn from it in the light most 

favorable to the nonmoving party.” Phillips v. City of Dawsonville, 499 F.3d 

1239, 1241 (11th Cir. 2007) (per curiam). “Summary judgment is appropriate

when no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law.” Id.

III.

“[W]hen public employees make statements pursuant to their official duties, 

the employees are not speaking as citizens for First Amendment purposes, and the 

Constitution does not insulate their communications from employer discipline.”4

 

Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct 1951, 1960 (2006). Whether a 

public employee speaks pursuant to his official duties is a question of law. Vila v. 

Padrón, 484 F.3d 1334, 1339 (11th Cir. 2007). When there is room for serious 

 3 Reeves testified that on the night that he made the report, he followed “protocol” and did 

his job. 

4 It is undisputed that the same rule applies to this case, even though Reeves was employed 

by a government subcontractor. See Bd. of Cnty. Comm’rs, v. Umbehr, 518 U.S. 668, 684-85, 

116 S. Ct. 2342, 2352 (1996).

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debate about the scope of an employee’s duties, “[t]he proper inquiry is a practical 

one.” Garcetti, 547 U.S. at 424, 126 S. Ct. at 1961. 

Assuming arguendo that Graham violated a right secured by the First 

Amendment when he ordered that Reeves be removed from duty, Graham is 

entitled to qualified immunity. “[G]overnment officials performing discretionary 

functions generally are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.”5

 Harlow v. Fitzgerald, 457 U.S. 

800, 818, 102 S. Ct. 2727, 2738 (1982). “‘Clearly established law’ is law that is 

sufficiently established so as to provide public officials with ‘fair notice’ that the 

conduct alleged is prohibited.” Randall v. Scott, 610 F.3d 701, 715 (11th Cir. 

2010) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002)). 

Reeves had the burden of showing that Graham was not entitled to qualified 

immunity. See Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 

2009). He has failed to uphold that burden. Reeves argues that the law “clearly 

established” that he made the report as a citizen rather than as a security guard for 

First Amendment purposes. In support, Reeves maintains that he was not required 

to report off-premises incidents. An employee may speak pursuant to his official 

 5 It is undisputed that Graham ordered Reeves’s removal in the performance of a 

“discretionary function.” 

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duties, however, even when he is not required to speak at all, at least where the 

speech “owe[s] its existence to the performance of [his] official responsibilities.” 

Abdur-Rahman v. Walker, 567 F.3d 1278, 1286 (11th Cir. 2009). Reeves 

emphasizes that he made the report using his personal cell phone and that he 

reported the incident outside of the normal chain of command. Under the 

circumstances, these procedural deviations were insufficient to give Graham “fair 

notice” that Reeves (we assume) made the report as a citizen rather than as a 

security guard. See Abdur-Rahman, 567 F.3d at 1284 (“We have consistently 

discredited narrow, rigid descriptions of official duties urged upon us to support an 

inference that public employees spoke as private citizens.”).6

 

IV.

Assuming arguendo that Reeves established a First Amendment violation, he 

has likewise failed to establish that the County is liable for it. Municipal liability 

under 42 U.S.C. § 1983 “may be premised upon a single illegal act by a municipal

officer only when the challenged act may fairly be said to represent official policy,

such as when that municipal officer possesses final policymaking authority over 

 6 Although Reeves initially argued in the district court that, even if Graham was entitled to 

qualified immunity, that defense would not protect him from equitable relief, Graham responded 

that he was merely a mid-level employee for the County and could not order the reinstatement 

that Reeves sought, especially because Reeves was not even a County employee but rather was 

an employee of the County’s subcontractor. For the first time on appeal, Reeves argues in his 

reply brief that at least there could be equitable relief in the form of an injunction requiring 

Graham to “rescind his removal decision.” We decline to address this argument made for the 

first time on appeal. 

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the relevant subject matter.” Scala v. City of Winter Park, 116 F.3d 1396, 1397 

(11th Cir. 1997). “[T]he mere delegation of authority to a subordinate to exercise 

discretion is not sufficient to give the subordinate policymaking authority. Rather, 

the delegation must be such that the subordinate’s discretionary decisions are not 

constrained by official policies and are not subject to review.” Id. at 1399 

(alteration in original) (quoting Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 

1989)). Final policymaking authority may be delegated through positive law or 

through “customs and practices having the force of law.” Mandel, 888 F.2d at 793. 

Reeves failed to establish that Graham had the requisite policymaking 

authority. At the time of Reeves’s removal, Graham was a mid-level employee in 

the Miami-Dade Transit Agency. A contract between the County and the security 

contractor empowered him to order Reeves’s removal, but—as the County 

correctly observes—it did not purport to render his decisions unreviewable within 

the County hierarchy. Nor has Reeves established a custom or practice of 

deferring to Graham’s decisions. See Mandel, 888 F.2d at 794 & n.18 (cataloguing 

evidence sufficient to establish such delegation). Reeves highlights testimony in 

which Graham acknowledges himself as the “decision-maker” with “final 

approval,” but in each such instance, Graham appears to refer to his authority 

under the contract rather than within the County hierarchy. In any event, these

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snippets of testimony are insufficient to establish that Graham had unreviewable 

discretion in his administration of the contract.

AFFIRMED.

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