Chase Peden, et al v. Glenn Stephens, et al

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10178
____________________
CHASE PEDEN,
MARJORIE PEDEN,
Plaintiffs-Appellants-Cross Appellees,
versus
GLENN STEPHENS,
BUTCH CONWAY,
LOU SOLIS,
Defendants-Appellees-Cross Appellants,
____________________
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-05861-TWT
____________________
Before J ILL PRYOR , BRANCH, and E D CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
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2 Opinion of the Court 24-10178
Chase Peden was fired as a deputy with the Gwinnett
County Sheriff’s Office in Georgia after allegations arose that he
was having extramarital affairs during work hours and while on
duty as a deputy. Chase and his wife Marjorie sued officials of
Gwinnett County and Carole Stephens, the wife of one of those
officials, asserting procedural due process, equal protection, and
state law defamation claims.1 The district court granted summary
judgment to the county defendants.2
We affirm the grant of summary judgment to the defendants
on the procedural due process and defamation claims. We vacate
the grant of summary judgment on the equal protection claim and
remand to the district court with instructions to dismiss that claim
for lack of standing.
I. BACKGROUND
Deputy Chase Peden and Carole Stephens had an extramar-
ital affair. When it ended, as virtually all affairs do, so did any ten-
der feelings that Carole ever had for Chase. As Dorthy Parker ven-
tured, “Scratch a lover, find a foe.”3 Carole definitely found a foe
1 Because Chase and Marjorie Peden have the same last name, we will
more often than not refer to them by their first names. We will do the same
for defendant Glenn Stephens and his wife Carole.
2 All the claims against Carole have been resolved, and she is not a
party to this appeal.
3 The quoted line is the refrain in Dorothy Parker’s Ballade of a Great
Weariness: “There’s little to do but I did before/There’s little to learn but the
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24-10178 Opinion of the Court 3
in the form of her former lover. Her feelings for him soured to the
point of bitterness. So much so that she wrote a letter to the Sher-
iff’s Office, pseudonymously signed “Michael,” accusing Chase of
having extramarital affairs while on duty.
In December 2017 the Sheriff’s Office received the “Mi-
chael” letter and opened an investigation into the allegations that
Chase was having extramarital dalliances while on duty as a dep-
uty. Chase agreed to a polygraph test, and in it he was asked if he
had sex while on duty, and whether he had sex while in his Sheriff’s
Office vehicle. He answered no to both questions. The test results
indicated “deception” in his responses.
According to Chief Deputy Lou Solis, toward the conclusion
of the investigation, he received a phone call from none other than
Carole’s husband, Gwinnett County Administrator Glenn Ste-
phens. He admitted to Chief Deputy Solis that Carole and Chase
had engaged in an extramarital affair with one another and that
Carole had written the “Michael” letter.
Based in part on the results of Chase’s polygraph test, the
Sheriff’s Office’s investigating unit issued a report in March 2018
charging Chase with violating three Sheriff’s Office rules by: engag-
ing in neglect of duty, personal use of county supplies, and conduct
unbecoming of an officer. Six of seven reviewing officers sustained
those allegations, meaning they found there was sufficient
things I know/And this is the sum of a lasting lore:/Scratch a lover, and find a
foe” (emphasis added).
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4 Opinion of the Court 24-10178
evidence to support the charges. (The seventh reviewing officer
made no written comment either way). Sheriff Butch Conway ul-
timately made the decision to fire Chase.
On March 16, 2018, Chief Deputy Solis and two other offic-
ers met with Chase. They informed him of the Sheriff’s Office’s
intent to terminate him, and they provided him with a written No-
tice of Intent to Terminate (a pretermination notice) based on his
violations of the three rules we have mentioned. The notice de-
scribed allegations that Chase had been using Sheriff’s Office prop-
erty, including his patrol vehicle, “to meet women and have sex”
and he had done so while on duty. The notice mentioned the indi-
cations of deception during the polygraph test.
The same three officers met with Chase again on March 22
to give him an opportunity to provide them with any additional
information he thought was relevant. Initially, Chase had nothing
to add. They gave him another day to put something together. He
did. On March 23 he submitted a few documents including a mem-
orandum addressed to Sheriff Conway and Chief Deputy Solis in
which he denied the allegations.
On March 28 Chase was notified in writing that Sheriff Con-
way had decided to terminate him. The termination notice was
substantially the same as the pre-termination notice. Chase filed
an appeal of his termination that same day, and a meeting was
scheduled with the Executive Secretary of the Gwinnett County
Merit Board for May 16.
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24-10178 Opinion of the Court 5
In the meantime, the Sheriff’s Office kept a copy of its report
on the investigation in Chase’s personnel file. On April 9 a televi-
sion reporter requested Chase’s personnel file under the Georgia
Open Records Act, see Ga. Code Ann. § 50-18-71, and a public in-
formation officer provided it to him. On April 10 the reporter ran
a televised news story about Chase and his alleged misconduct.
On May 16 Chase, accompanied by his attorney, went to the
scheduled County Merit Board meeting. Before the meeting
started, Chase and the Sheriff’s Office reached a settlement. The
terms were that in exchange for Chase dropping the appeal of his
termination, the Sheriff’s Office would acknowledge that he had
not been terminated but had instead resigned. During his deposi-
tion in this lawsuit, Chase testified that he “was advised by counsel
that anything further wasn’t really necessary because I got what I
was aiming for.” By dropping his appeal, Chase gave up the oppor-
tunity for an evidentiary hearing before the full Merit Board and a
chance to appeal his “non-termination” termination to the Gwin-
nett County Superior Court.
Chase alleges that he did not learn until after the settlement
and after he had dropped his administrative appeal that the Sheriff
and his investigators had known pretty much from the beginning
of the investigation that he had been having an extramarital affair
with Carole Stephens, the wife of Gwinnett County Administrator
Glenn Stephens. Yet they did not name her in the pretermination
notice, the termination notice, or at any time during the process.
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6 Opinion of the Court 24-10178
The ill will between the former lovers and their spouses con-
tinued and, if anything, only deepened after Chase’s departure
from the Sheriff’s Office. In early June 2018 Chase approached the
district attorney for Gwinnett County and asked him to charge
Carole with the crimes of stalking and harassing him. After the
district attorney discussed those allegations with Carole’s husband
Glenn, and also interviewed Carole, he decided not to pursue any
charges against her.
Chase claims that Sheriff’s Office officials deprived him of a
fair opportunity to contest his termination by not telling him that
his affair with Carole was the true cause of his termination.4
Chase does not now dispute the fact that carnal relations
happened, but he does deny carnally relating while on duty, and he
denies that any of his fornication was facilitated by the use of Sher-
iff’s Office property (the official vehicle).
II. PROCEDURAL HISTORY
On December 21, 2018, Chase and his wife Marjorie filed
this lawsuit in federal court, asserting multiple claims against Glenn
and Carole Stephens. In their first amended complaint they added
as defendants multiple Gwinnett County officials. And they did not
deny that Chase and Carole had carnal relations but did deny that
4 At his deposition, Chief Deputy Solis testified that “the pretty big
thing” and “the only thing” relating to Peden’s termination “was having to do
with Mr. Peden and Ms. Stephens.” Sheriff Conway listed multiple reasons
Peden was fired, including his “becoming involved with a married woman
while he was married.”
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24-10178 Opinion of the Court 7
it happened while he was on duty and denied that any former for-
nication was facilitated by Sheriff’s Office property.
In addition to pleading that he was not as guilty of miscon-
duct as he could have been, Chase asserted two of the claims that
are before us, and Chase and his wife asserted the third one.
In one of the claims, Chase alleged under 42 U.S.C. § 1983
that County Administrator Glenn Stephens, Sheriff Conway, and
Chief Deputy Solis violated his Fourteenth Amendment proce-
dural due process rights by: (a) conspiring to terminate him with-
out telling him the true reason for his termination (his affair with
Carole); and (b) arranging for the Sheriff’s Office investigation re-
port to be published in the news without providing him the oppor-
tunity to defend his reputation.5
In another of the claims, Chase alleged that Glenn, Solis, and
Conway defamed him under Georgia law by conspiring to leak the
Sheriff’s Office investigation report to a journalist.
And in a third claim, Chase and his wife Marjorie alleged un-
der 42 U.S.C. § 1983 that Glenn violated their right to “equal
5
The district court concluded that Chase failed to properly plead that
procedural due process claim against one of the defendants, Sheriff Conway.
Chase challenges that conclusion, and he argues that the district court abused
its discretion by denying his motion to amend his pleadings to more clearly
add Conway to the claim. Because it makes no difference to the outcome in
this appeal, we assume without deciding that Chase adequately alleged a pro-
cedural due process claim against Conway in addition to Solis and Glenn Ste-
phens.
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8 Opinion of the Court 24-10178
protection of the laws” under the Fourteenth Amendment by im-
properly influencing the district attorney’s decision not to prose-
cute Carole.
The district court granted summary judgment to the Gwin-
nett County officials on all three of those claims. After a convo-
luted procedural history, the district court’s judgment on those
claims is now properly before this Court.6
6 The procedural convolutions don’t affect the result, but if you want
to hear about them, here is a summary. The Pedens first filed a notice of appeal
after successfully moving for the district court to enter final judgment against
Conway, Solis, and Glenn Stephens under Federal Rule of Civil Procedure
54(b). This Court dismissed that appeal, concluding that the Pedens had not
properly withdrawn other, still-active claims against those defendants.
Then the Pedens amended their complaint to omit those other claims,
and the district court entered a new final judgment as to all claims against
Conway, Solis, and Glenn. After doing that, the Pedens filed another notice
of appeal. But the parties jointly stipulated to the dismissal of that appeal after
this Court entered a jurisdictional question identifying potential issues with
the finality of a different claim (one against Carole, not presently before this
Court).
Then the Pedens moved in the district court to set aside its latest judg-
ment on the claims against Conway, Solis, and Glenn. The district court
granted the motion and entered an order setting aside that judgment under
Federal Rule of Civil Procedure 60(b). The court then entered a new judg-
ment, now finally final as to all parties and claims in the case. The Pedens filed
a new notice of appeal which brought that judgment to us. The appeal from
that judgment is before us now.
But wait, there’s more. The Gwinnett County officials filed a cross-
appeal challenging the district court’s order to set aside the judgment under
Rule 60(b). Because we resolve this appeal in the officials’ favor, we will
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24-10178 Opinion of the Court 9
III. DISCUSSION
A. The Procedural Due Process Claim
There is at least a genuine issue of material fact that his car-
nality with Carole was the real reason Chase lost his job as a deputy.
See supra at 6 n.4. The basis for Chase’s procedural due process
claim is his assertion that Gwinnett County officials never in-
formed him of that with sufficient specificity because they did not
tell him that the woman he was accused of having sex with was
Carole. See supra at 6. That means, according to Chase, he was
deprived of his property interest in his job without receiving the
process he was due: “oral or written notice of the charges against
him, an explanation of the employer’s evidence, and an oppor-
tunity to present his side of the story.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985).
Chase also contends he was deprived of his liberty interest
based on “reputational damage” that he “sustained in connection
with a termination of employment” because he never received “a
meaningful opportunity for an employee name clearing hearing,”
which is also a requirement of procedural due process. See Cotton
v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000). Without actual
dismiss their cross-appeal as moot. See United States v. City of Hialeah, 140 F.3d
968, 984–85 (11th Cir. 1998) (dismissing prevailing party’s cross-appeal as
moot); Loyola Fed. Sav. Bank v. Fickling, 58 F.3d 603, 605 (11th Cir. 1995) (dis-
missing the prevailing party’s cross-appeal because “our affirmance of the
judgments in his favor ma[de] the[] issues moot”).
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10 Opinion of the Court 24-10178
knowledge of the real and specific reason for his termination, says
Chase, any process he received was “a lie” and “a sham.”
As we have already explained, both the pretermination no-
tice and the termination notice informed Chase that the miscon-
duct leading to his termination was using Sheriff’s Office property,
including his patrol vehicle, “to meet women and have sex” and do-
ing so while on duty. But no name of any purported paramour,
including Carole, was ever provided to him. Generalities are not
enough, Chase argues. He insists he was entitled to be told that he
was being fired for having sex with Carole. Although it’s undenia-
ble –– and undenied –– that he knew he was having sex with Carole,
he apparently believes that if he had known that the defendants
knew, it might have in some unspecified way helped him show that
their stated reason for firing him was pretextual. But we need not
tarry long on Chase’s argument that procedural due process enti-
tled him to be told that the defendants knew what he himself knew.
This side-issue is a non-issue because it does not matter in this case.
It does not matter because there is a big, threshold defect in
Chase’s procedural due process theory and everything it entails.
The defect is that a “terminated employee” may not successfully
assert a procedural due process claim “in federal court . . . before
the employee utilizes appropriate, available state remedial proce-
dures.” McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en
banc), abrogation on unrelated grounds recognized by Littlejohn v.
Sch. Bd. of Leon Cnty., 132 F.4th 1232, 1240 (11th Cir. 2025). Even a
plaintiff who has “suffered a procedural deprivation . . . has not
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24-10178 Opinion of the Court 11
suffered a violation of his procedural due process rights unless and
until the State . . . refuses to make available a means to remedy the
deprivation.” Id. at 1563.
The McKinney decision and a couple of the many decisions
following and applying it demonstrate why by rushing to file suit
in federal court before making use of available Georgia law reme-
dies Chase struck a fatal blow to his procedural due process claims.
In McKinney a Florida county building official was termi-
nated after a three-day hearing, and he brought a due process claim
in federal district court alleging the decisionmakers had been “bi-
ased” against him. 20 F.3d at 1554–55. Sitting en banc, we decided
the claim had to be dismissed because the plaintiff had “failed to
avail himself of the full procedures provided by state law.” Id. at
1565 (quotation marks omitted). We explained: “Florida courts . .
. have the power to review employment termination cases,” and
“[i]nherent in that power to review is the power to remedy defi-
ciencies and to cure violations of due process.” Id. at 1563. “There-
fore, the Florida courts have the authority to order the relief to
which [the plaintiff] claims to be entitled — a new hearing con-
ducted by a fair tribunal.” Id. The plaintiff had not suffered a vio-
lation of his right to procedural due process because he “could have
availed himself of state court procedures that . . . could have pro-
vided him with adequate relief,” but he “chose not to utilize those
procedures.” Id. at 1567. Judgment for the defendants was af-
firmed. Id.
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12 Opinion of the Court 24-10178
We reached the same conclusion in Narey v. Dean, 32 F.3d
1521 (11th Cir. 1994), where the director of a community mental
health center was demoted for what he claimed were pretextual
reasons. Id. at 1522–23. He appealed the demotion to the State
Personnel Board, and a hearing officer upheld the demotion deci-
sion. Id. at 1523. He appealed to the full Board, which also af-
firmed. Id. Then he filed an appeal in Georgia state court, but he
“voluntarily dismissed” that appeal without prejudice. Id. Finally
he filed procedural due process claims in federal district court. Id.
The plaintiff’s decision to abandon the state court process doomed
his constitutional claim that he was demoted based on pretextual
reasons. See id. at 1527–28. We explained that Georgia allowed a
terminated employee to file “an appeal to state courts to review the
decision of the [State Personnel] Board for constitutional viola-
tions.” Id. at 1528. Because the plaintiff had “not take[n] advantage
of the opportunity for state court review,” he could not “claim that
the state deprived him of procedural due process.” Id. Judgment
for the plaintiff was reversed. Id.
A plaintiff whose procedural due process claim is based on
the deprivation of a liberty interest bears the same burden of seek-
ing state remedies as one claiming deprivation of a property inter-
est. In Cotton, the director of continuing education for a Georgia
college was accused of sexual harassment. 216 F.3d at 1329. The
college president terminated the director, rejected the director’s re-
quest for a hearing, and allegedly placed letters in the director’s per-
sonnel file stating that the director had created a hostile work envi-
ronment. Id. at 1329–30. The Board of Regents of the University
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24-10178 Opinion of the Court 13
System of Georgia rejected the director’s request to review the ter-
mination decision. Id. at 1330. The director then sued the presi-
dent and Board members in federal court based on the alleged dep-
rivation of a liberty interest, claiming the college president “effec-
tively ruined his reputation by labeling him as a sexual harasser and
by terminating his employment without giving him an opportunity
to be heard.” Id.
This Court concluded that the college president was entitled
to summary judgment because Georgia law provided “adequate
procedures” and “adequate remedies” to “protect [the director’s]
right not to be deprived of his liberty interest in his reputation by
state action without the opportunity for a name-clearing hearing.”
Id. at 1331. We explained that the director “would be entitled to
seek a writ of mandamus” under Georgia law, id. at 1332, which
the director could have used to “direct[] Defendants to hold a
name-clearing hearing (assuming that the mandamus proceeding
was not itself a sufficient name-clearing hearing to satisfy due pro-
cess),” id. at 1333; see also Ga. Code Ann. § 9-6-20 (“[W]henever,
from any cause, a defect of legal justice would ensue from a failure
to perform or from improper performance, the writ of mandamus
may issue to compel a due performance if there is no other specific
legal remedy for the legal rights . . . .”). We stated: “Because we
believe that the writ of mandamus would be available under state
law to Plaintiff, and because we believe that mandamus would be
an adequate remedy to ensure that Plaintiff was not deprived of his
due process rights, we conclude that Plaintiff has failed to show
that inadequate state remedies were available to him to remedy
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14 Opinion of the Court 24-10178
any alleged procedural deprivations.” Cotton, 216 F.3d at 1333 (ci-
tations omitted). Judgment for the defendant. See id.
Chase Peden — by failing to pursue state procedures and
remedies before the County Merit Board and in state court, see su-
pra at 5–6, — has put himself in the same position as the plaintiffs
in McKinney, Narey, and Cotton. Peden testified that he understood
“there was another process,” an appeal to the Full Merit Board, and
if he chose to keep going, an appeal to the Superior Court of Geor-
gia. See Ga. Code Ann. §§ 5-3-3, 5-3-7. To the extent his termina-
tion deprived him of a property interest, he could have continued
with that process and could have filed “an appeal to state courts to
review” the decision to terminate him. Narey, 32 F.3d at 1528. But
he did not take advantage of administrative procedures and “did
not take advantage of the opportunity for state court review[] and
cannot now claim that the state deprived him of procedural due
process.” Id.; see also McKinney, 20 F.3d at 1563, 1567. Instead,
when asked in his deposition if he chose to accept a settlement
agreement because he “got what [he] wanted,” he testified, “Yes.”
To the extent Chase was deprived of a liberty interest in his
reputation, he could have pursued state procedures and could have
sought state remedies, including a writ of mandamus to demand a
name-clearing hearing, but he failed to do so. See Cotton, 216 F.3d
at 1331–33; Ga. Code Ann. § 9-6-20. Having failed to make use of
state procedures that were adequate to protect his procedural due
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24-10178 Opinion of the Court 15
process rights, Chase has not suffered a constitutional violation.7
The district court correctly granted summary judgment to the
Gwinnett County officials on that claim. See Fed. R. Civ. P. 56(a).
B. The Defamation Claim
Chase asserts a defamation claim against Sheriff Conway,
Chief Deputy Solis, and County Administrator Glenn Stephens for
“conspiring” to provide a tip about Chase’s personnel file to a re-
porter, prompting the reporter to request the file under Georgia’s
Open Records Act. Chase claims the defendants “knew that the
‘Michael’ letter was false on its face,” or at least they “made no
7 Chase protests that he could not make use of state procedures be-
cause, at the time they were available, he was unaware of the true reason the
Gwinnett County officials had terminated him (his affair with Carole). We
disagree. Chase asserts that he did not learn until November 2018 that Gwin-
nett County officials had decided to terminate him because of his extramarital
affair with Carole. That’s only six months after the May meeting with the
Merit Board, and only nine months after his March termination.
Chase has provided no authority establishing that the remedies avail-
able to him in state court, including a mandamus action, were lost to him less
than a year after the wrongs he allegedly suffered. See Ga. Code Ann. § 9-3-22
(“All actions for the enforcement of rights accruing to individuals . . . by oper-
ation of law shall be brought within 20 years after the right of action has ac-
crued . . . .”); see also id. § 9-6-20 to § 9-6-28 (not setting a statute of limitations
on mandamus actions). The Supreme Court of Georgia has recognized that
mandamus is a “quasi-equitable remedy” that “can be barred by gross laches,”
Cowen v. Clayton Cnty., 832 S.E.2d 819, 822 (Ga. 2019) (quotation marks omit-
ted), but less than a year under these circumstances cannot possibly amount
to that. See id. (“Mandamus as a remedy may not lie where an applicant is
guilty of gross laches or has permitted an unreasonable period of time to
elapse.”) (alteration adopted) (quotation marks and citation omitted).
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16 Opinion of the Court 24-10178
attempt to independently investigate whether the claims in the let-
ter were true.” And they arranged for the publication of its allega-
tions anyway. The district court concluded that Chase’s defama-
tion claim lacked merit for multiple reasons, including insufficient
evidence of a causal connection between the defendants and the
publication of the allegedly defamatory material.
There is no evidence in the record that any of the defendants
provided the reporter with a “tip.” In their depositions all three of
them denied doing so. Chase does not claim to know which one
(if any) of the defendants — Conway, Solis, or Glenn — contacted
the reporter. He asserts in his brief to this Court that the tip “was
clearly intended to set a course of events in motion that would ruin
Mr. Peden’s reputation,” and that whoever provided the tip must
have had an “interest in Mr. Peden’s reputational harm.” In Chase’s
assessment, “it can further be inferred that one of ” the defendant
officials must have been responsible: maybe it was Conway, or
maybe it was Solis, or maybe it was Glenn, or maybe it was two of
the three acting together, or maybe it was all three of them acting
together. Chase acknowledges the speculative nature of his claim
by stating that “it was at least negligent if one or more of them
contacted [the reporter] to tell him about the letter.” His cause of
action depends on the “if.” Those two little letters cannot support
the weight of speculation that Chase puts on them.
For a plaintiff to establish an inference that a defendant made
a defamatory statement under Georgia law, the inference “must be
reasonable and must amount to more than mere speculation,
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24-10178 Opinion of the Court 17
conjecture, or possibility.” HI Tech. Corp. v. Quality Inv. Props. Su-
wanee, LLC, 894 S.E.2d 666, 677 (Ga. Ct. App. 2023) (quotation
marks omitted); see Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005) (explaining that “[s]peculation does not create a
genuine issue of fact”). Chase’s contention that any of the defend-
ants provided the supposedly defamatory statement to a reporter
“is no more than speculation.” HI Tech. Corp., 894 S.E.2d at 677
(concluding defendant was entitled to summary judgment on def-
amation claim); see also John D. Robinson Corp. v. S. Marine & Indus.
Supply Co., 395 S.E.2d 837, 842 (Ga. Ct. App. 1990) (reversing judg-
ment on a jury verdict awarded to plaintiffs on a libel claim and
stating: “The record contains no probative evidence of any oral
communication of the written defamation, but only mere specula-
tion that such communications occurred.”). The district court cor-
rectly entered summary judgment for the Gwinnett County offi-
cials on Chase’s speculative defamation claim.
C. The Equal Protection Claim
The Pedens claim that County Administrator Glenn Ste-
phens violated their “constitutional right to access the judicial sys-
tem by influencing the district attorney’s decision not to prosecute
his wife Carole Stephens for stalking or harassment.” They point
to factual allegations in their complaint, asserting that Glenn par-
ticipated in a “conspiracy” with the district attorney, persuading
him not “to prosecute Carole Stephens . . . while failing to provide
Mr. and Mrs. Peden the protections of law enforcement and the
judicial system.” In their view, that action is “quite literally, a failure
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18 Opinion of the Court 24-10178
of equal protection under the law” in violation of the Fourteenth
Amendment.8 The district court rejected the Pedens’ equal protec-
tion claim on the merits.
The defendant Gwinnett County officials contend that the
Pedens lack standing to assert their equal protection claim. They
are correct. “[A] private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (affirming dismissal for lack of
standing); see Leeke v. Timmerman, 454 U.S. 83, 86–87 (1981) (con-
cluding prisoners lacked standing to challenge a decision of correc-
tional officials to oppose a magistrate’s issuance of arrest warrants
against prison guards who allegedly beat the prisoners, noting that
“the decision to prosecute is solely within the discretion of the pros-
ecutor”).
We vacate the grant of summary judgment to the Gwinnett
County officials on the Pedens’ equal protection claim and remand
to the district court with instructions to dismiss that claim without
prejudice for lack of standing. See Stalley ex rel. U.S. v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“A dismis-
sal for lack of subject matter jurisdiction is not a judgment on the
merits and is entered without prejudice.”); see also TocMail, Inc. v.
8 The Pedens asserted the same claim against the district attorney. The
district court dismissed that claim, and the Pedens did not appeal that dismis-
sal.
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24-10178 Opinion of the Court 19
Microsoft Corp., 67 F.4th 1255, 1267 (11th Cir. 2023); Fed. R. Civ. P.
41(b).
IV. CONCLUSION
The district court’s grant of summary judgment to the
Gwinnett County officials on the procedural due process and defa-
mation claims is AFFIRMED. The district court’s grant of sum-
mary judgment to County Administrator Glenn Stephens on the
Pedens’ equal protection claim is VACATED and REMANDED
with instructions for the district court to dismiss that claim without
prejudice for lack of standing. The Gwinnett County officials’
cross-appeal is DISMISSED AS MOOT.
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