UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20203
Summary Calendar
PAT BULLARD,
Plaintiff-Appellant,
VERSUS
CITY OF HOUSTON, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas, Houston Division
(CA-H-95-762)
November 26, 1997
Before DUHÉ, DEMOSS, and DENNIS, Circuit Judges.
PER CURIAM:1
Plaintiff Pat Bullard (“Bullard”) appears before this Court a
second time2 in his suit alleging retaliatory discharge for the
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opinion should not be published and is not precedent except under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.
2
His first appearance resulted in our dismissal of his
substantive due process claims under 42 U.S.C. § 1983, our
affirmance of the denial of official immunity under state law with
respect to the state claims, and our conclusion that he had stated
a claim for a violation of his First Amendment rights. Bullard v.
City of Houston, 95 F.3d 48 (5th Cir. 1996).
exercise of his First Amendment rights to testify truthfully in
court and to speak out on a matter of public concern. He now
appeals the summary judgment dismissal of his claims of retaliatory
discharge against Harris County assistant district attorneys
(“ADAs”) John Miles (“Miles”), Baldwin Chin (“Chin”), and Kelly
Colquette (“Colquette”) on grounds of qualified immunity. Bullard
also appeals the dismissal of his conspiracy claim against the
individual defendants, of his defamation claim against Colquette,
and of his claim against the City of Houston (“Houston”).3 We
affirm.
I.
Bullard was employed by the Houston Police Department (“HPD”)
as a civilian Police Service Officer (“PSO”). His primary duties
included interviewing and administering sobriety tests on videotape
to DWI suspects. Additional duties were to testify at trial,
authenticating the videotapes and presenting his observations made
during the videotaping. During his employment, Bullard was the
object of several Internal Affairs Division (IAD) investigations.
The investigations pertinent here arose from Bullard’s conduct
relating to two DWI trials.
In preparation for the first DWI trial at issue (“the Edwards
trial”), ADA Miles met with Bullard to review the videotape Bullard
3
All other issues arising from his district court suit that
Bullard has not briefed on appeal are waived. Franceski v.
Plaquemines Parish School Board, 772 F.2d 197, 199 (5th Cir. 1985).
2
had made of Edwards and Bullard’s expected testimony about the tape
and Edwards’ speech and behavior. Miles structured the state’s
presentation based upon what he believed to be Bullard’s
observations. During his testimony, Bullard was either unable or
unwilling to testify as Miles thought he would. Because the
prosecution’s case was based on Bullard’s expected but undelivered
testimony, Edwards was acquitted. Miles complained to an HPD
supervisor about Bullard’s lack of cooperation with the District
Attorney’s office and his perceived incompetence. The supervisor
initiated an IAD investigation.
Bullard’s conduct at a second DWI trial (“the Smith trial”)
resulted in another IAD investigation. Again, Bullard’s testimony
was inconsistent with what he had led the ADAs at pretrial meetings
to believe he would say. After a discussion about this
inconsistency with the ADAs, an HPD officer initiated an IAD
complaint based on Bullard’s alleged violation of the HPD’s
Civilian Rules and Regulations (“the Regulations”).
Following hearings, the HPD chief recommended indefinite
suspension, which was followed by a final decision by the mayor for
termination. Bullard’s termination was affirmed by the Civil
Service Commission.
II.
We review a grant of summary judgment de novo pursuant to the
usual standards. Fed. R. Civ. P. 56(c); Nowlin v. Resolution Trust
Corp., 33 F.3d 498, 502 (1994); Celotex Corp. v. Catrett, 477 U.S.
3
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986). We view the facts and inferences in the light most
favorable to the non-movant. Faruki v. Parsons S.I.P, Inc., 123
F.3d 315, 318 (5th Cir. 1997).
III.
The individual defendants moved for dismissal based on
qualified immunity. The qualified immunity analysis is a familiar
one. We first determine whether the plaintiff has alleged the
violation of a constitutional right. Siegert v. Gilley, 500 U.S.
226, 231 (1991). If so, we next decide if the right was clearly
established at the time the challenged conduct occurred and whether
the defendant’s conduct was objectively reasonable. Hale v.
Townley, 45 F.3d 914, 917 (5th Cir. 1995).
Bullard alleges that he was discharged in retaliation for his
truthful testimony at the Edwards and Smith trials. Trial
testimony is speech protected by the First Amendment. Johnston v.
Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir.
1989).
We assume, without deciding, that Bullard has established a
prima facie case of truthful testimony. We next decide if an
objectively reasonable official would have known that the
institution of an IAD investigation and the submission of
affidavits regarding inconsistencies in pre-trial and trial
testimony and violations of HPD regulations violated Bullard’s
clearly established First Amendment rights. To determine that the
4
defendants are not entitled to qualified immunity, it must be
apparent that they knew their conduct violated a clearly
established right, not that, in some sense, they were doing
something wrong. Foster v. City of Lake Jackson, 28 F.3d 425, 430
(5th Cir. 1994).
As a civilian employee, Bullard was subject to the
Regulations.4 His infractions of these regulations were the
subject of the complaints made by the ADAs that resulted in IAD
investigations and Bullard’s subsequent termination. We hold that
their submissions of affidavits upon IAD request could be viewed by
other public officials as objectively reasonable reactions to
Bullard’s conduct rather than actions that clearly violate
Bullard’s right to give truthful testimony free from the threat of
retaliatory discharge.
The ADAs’ complaints centered on the inconsistencies between
Bullard’s pretrial statements and his actual testimony. The ADAs
reasonably expected that Bullard’s trial testimony would be
consistent with the information he provided them at the pre-trial
meetings. In the Edwards trial preparation, by his own admission,
Bullard failed to correct ADA Miles’ understanding that Bullard
4
Inter alia, these included (1) having the ability and
willingness to satisfactorily perform assigned duties pertaining to
their jobs; (2) cooperation with all agencies engaged in the
administration of criminal justice and other public departments,
giving aid to each, all aid and information they may be entitled to
receive; and (3) speaking the truth at all times, whether under
oath or not in connection with official duties.
5
agreed that Edwards was “thick-tongued.”5 Although Bullard did not
hesitate in describing Edwards’s physical performance on these
tests, he did not directly answer questions about Edwards’s
intoxication.6 He would not articulate for the jury things he
observed about the defendant that indicated intoxication despite
having viewed the videotape at least twice. Bullard indicated only
that there was some “impairment” when asked if a sway on the head
tilt test was indicative of “intoxication.” He then announced that
what he had testified to could be seen on the tape. Underlying
Miles’s affidavit, submitted in response to an IAD request, was his
reasonable expectation that Bullard would be forthright with him,
letting him know at the pre-trial meeting that he thought the
suspect’s performance on some of the tests was inconsistent with a
state of intoxication.
Bullard’s same lack of candor and forthrightness formed the
basis for a complaint filed with IAD after the Smith trial. ADAs
Chin and Colquette’s affidavits indicated that Bullard had told
5
“I got the feeling that he thought I was going to testify to the
defendant being thick-tongued.” While on the stand during the
trial when asked if there was anything notable about Edwards’s
speech, Bullard responded “I don’t believe so, sir.” Bullard even
admitted that although it was fair that an attorney know what he,
as a witness, would testify to before putting him on the stand that
he felt no need to tell Miles he disagreed with him. He stated “I
wasn’t going to argue with Mr. Miles. . .I wasn’t going to say
anything.”
6
His response was that Edwards did not follow instructions when
asked if the suspect’s heel-to-toe test indicated that he was
“intoxicated.”
6
them during the Smith pre-trial meeting he had not formulated an
opinion about Smith’s intoxication and was not trained to do so.
His cross-examination testimony was that Smith was not “highly
impaired,”7 performed better than the average suspect on sobriety
tests, and performed satisfactorily on the one-leg test. Chin and
Colquette reasonably expected that Bullard’s trial testimony would
be consistent with the information he provided them at the pre-
trial meeting. They felt it was not.8
It is clear that Bullard’s lack of forthrightness and the
apparent inconsistencies in his pre-trial and trial statements
indicate a lack of cooperation with the ADAs who are part of an
agency engaged in the administration of criminal justice. It is
equally clear from Bullard’s own sworn statement that he did not
give all aid and information the ADAs were entitled to receive to
properly prepare for the DWI trials nor was he willing to do so.
We conclude that it was not objectively unreasonable to submit a
statement to IAD investigators regarding the inconsistencies in
Bullard’s trial testimony and his perceived incompetence. The
ADAs, as reasonable government officials, know only that they must
not infringe on Bullard’s free speech rights, but would not
7
Bullard apparently draws a distinction between intoxication and
impairment. He failed to explain this distinction to the ADAs as
they were formulating their trial strategy and planning for their
witnesses.
8
Statements gathered during the IAD investigations of Bullard’s
trial conduct showed a lack of confidence among ADAs in Bullard’s
competence and willingness to cooperate.
7
necessarily know that submission of affidavits upon request would
be prohibited conduct. See Anderson, 483 U.S. at 640.
In reaching this conclusion, we note that the district court
found that the individual defendants had no authority to directly
affect Bullard’s employment and acted in their official capacities
to report Bullard’s misconduct and infractions of rules. We agree
that the actions of these governmental employees were objectively
reasonable, as they followed established IAD procedures for the
investigations of violations. See Johnston v. City of Houston, 14
F.3d 1056, 1059 (5th Cir. 1994).
Because Bullard’s claim of retaliatory discharge fails, his
claim of conspiracy to violate his constitutional rights also
fails. See Hale, 45 F.3d at 920.
We also affirm the district court’s judgment against Bullard
dismissing his defamation claim against Colquette. We agree that
as a matter of law, the statements attributed to Colquette are not
defamatory.9 She plainly expressed her opinion of Bullard’s
performance based on her courthouse experiences. Her statement
that Bullard “generally supports” a defendant’s defense does not
9
In her affidavit Colquette swore that it was her opinion based
on discussions with other attorneys and her experiences and
observations of DWI cases that “it is common knowledge amongst
several defense attorneys...that they should not stipulate to the
video-tape whenever Pat Bullard is the P.S.O. because [he]
generally supports their defense.”
8
meet the statutory definition of libel.10
Colquette’s statements in her affidavit submitted as part of
the IAD investigation are absolutely privileged under state law
when made in the context of a quasi-judicial investigation, such as
that of the IAD. See Putter v. Anderson, 601 S.W. 2d 73 (Tex. App.
- Dallas 1980, writ ref’d n.r.e.). Additionally, a qualified
privilege attaches to statements made under circumstances in which
any one of several persons having a common interest in a particular
subject matter may reasonably believe that facts exist that
another, sharing that common interest, is entitled to know.
McDowell v. State, 465 F.2d 1342, 1344-45 (5th Cir. 1971). Because
Colquette had a common interest with the HPD in insuring the
quality and credibility of a witness responsible for assisting in
the investigation of criminal offenses, only actual malice is
sufficient to overcome this privilege. Even if she possessed ill
will, Colquette’s statements do not rise to the actual malice
needed to defeat the privilege. Conticommodity Services v. Ragan,
63 F.3d 438, 442 (5th Cir. 1995), cert. denied, __U.S. , 116 S.Ct.
1318 (1996), citing Haglar v. Proctor & Gamble, 884 S.W. 2d 771
10
See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 1986):
A libel is a defamation expressed in written
or other graphic form...that tends to injure a
living person’s reputation and thereby expose
the person to public hatred, contempt or
ridicule, or financial injury or to impeach
any person’s honesty, integrity, virtue, or
reputation... .
9
(Tex. 1994).
Bullard complains that the district court granted Houston’s
summary judgment on an issue not raised and without notice. A
district court may grant summary judgment sua sponte so long as the
losing party was on notice that he had to come forward with all his
evidence.11 Houston’s dismissal was granted on grounds raised by
another defendant, Harris County,12 that Bullard had not shown his
termination resulted from a custom or policy of the political
entity.13 Bullard chose not to respond to the Harris County motion
and presented no evidence of custom or policy, although he sued all
of the individual defendants in their official capacities as well
as the political entities of Harris County and the City of Houston.
In filing his suit against the public entities, Bullard should
have been aware of the identical elements of proof needed both for
his claims against the county and for his claims against Houston.
The district court did not err in dismissing Bullard’s claim
against Houston on grounds other than those requested by the city.
IV.
For all of the above reasons, we affirm the summary judgments
granted by the district court.
11
Nowlin, 33 F.3d at 504, n.9, citing Celotex, 477 U.S. at 326.
12
Harris County was dismissed earlier on a motion for summary
judgment by the U.S. District Court for the Southern District of
Texas, Houston Division, No. H-95-0762 (Feb. 12, 1997).
13
See Monell v. Department of Soc. Serv. of City of New York, 436
U.S. 658 (1978); Kentucky v. Graham, 473 U.S. 159, 166 (1985).
10
AFFIRMED.
11