UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-50885
_______________________
MARK S. VOJVODICH,
Plaintiff-Appellee,
versus
RALPH LOPEZ, Bexar County Sheriff, Individually and in Official
Capacity,
Defendant-Appellant.
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No. 97-50175
_______________________
STEPHEN GARZA,
Plaintiff-Appellee,
versus
RALPH LOPEZ, Sheriff; CHAUNCEY SPENCER; BRIAN MENGES,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
(SA-95-CV-455 & SA-95-CV-622)
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August 19, 1997
Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:1
In these consolidated appeals, Ralph Lopez, Chauncey
Spencer and Brian Menges appeal the decisions by the magistrate
judge and district court to deny qualified immunity for the
actions that are the subject of this suit. Mark Vojvodich and
Stephen Garza are former employees of the Bexar County sheriff’s
department who filed suit under 42 U.S.C. § 1983 alleging that
they suffered adverse employment actions in violation of their
First Amendment rights. Concluding that the appeal by Lopez,
Chauncey Spencer, and Brian Menges is frivolous, we affirm.
Garza was a deputy with the rank of Captain. Garza alleges
that his transfer within the department, “letters of counseling”
for unacceptable conduct, Order of Suspension, and ultimate
dismissal were in retaliation for his political activities,
including his announcing his candidacy and campaigning for the
sheriff’s office.
Vojvodich was a deputy with the rank of lieutenant.
Vojvodich alleges that Lopez refused to promote him, delayed
payment for excess overtime, assigned him to less prestigious
duty and dismissed him in retaliation for affiliation with
1
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should not be published and is not precedent except under the limited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.
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another political party and support of a competing candidate for
sheriff.
Appellants are not entitled to qualified immunity because
at the time that they took adverse action against Vojvodich and
Garza, the law was clearly established that a sheriff could not
take retaliatory employment action against his deputies based on
political activity or association unless the activity was
sufficiently disruptive. See Click v. Copeland, 970 F.2d 106, 111
(5th Cir. 1992); Vojvodich v. Lopez, 48 F.3d 879 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S.Ct. 169 (1995). Both appellees
raised fact issues as to the political nature of their speech or
activity and as to whether the disruption caused thereby
justified the adverse employment actions against them.
Appellants do not raise any substantial arguments that
distinguish this case from the prior two opinions of this court
that conclusively decided the qualified immunity issue against
him. In fact, these appeals appear calculated to prolong the day
of reckoning at trial, a day we trust the trial court will soon
establish. Because these appeals are frivolous and dilatory,
appellants are hereby put on NOTICE and ordered to SHOW CAUSE as
to why they should not be ordered to pay damages and costs to
appellees under FED. R. APP. PROC. 38. Appellants are ordered to
respond within 30 days of the date of this opinion and order.
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AFFIRMED; SHOW CAUSE ORDER ISSUED.
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