Singletary v. Brumley

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

____________________________

No. 97-30346
____________________________

JERRY SINGLETARY; RHONDA SINGLETARY,

Plaintiffs-Appellees/Cross-Appellants,

versus

JAMES A. BRUMLEY, JR., Individually, and in his
official capacity as Sheriff of Sabine Parish,

Defendant-Appellant/Cross-Appellee.

___________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-1468)
_________________________________________________________________
August 12, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

The linchpin for this appeal from a jury verdict in a 42

U.S.C. § 1983 action is whether a sheriff’s deputy, who was

transferred, allegedly in retaliation for refusing the sheriff’s

request that the deputy speak to his wife about her opposition, as

a city council member, to the sheriff, proved a violation of the

deputy’s First Amendment rights. We hold that he did not and

REVERSE and RENDER judgment for the defendant, Sheriff James

Brumley, on that claim. We AFFIRM as to the cross-appeals.

*
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that this opinion should not be published and is not precedent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.
 I.

In January 1985, Jerry Singletary (Singletary) was hired as a

deputy for the sheriff’s department in Sabine Parish, Louisiana,

under Sheriff Brumley. Until September 1990, Singletary served as

a guard at the parish jail. While so serving, he experienced

severe anxiety and depression due to the confinement and his

feelings of helplessness, resulting, in part, from prisoner suicide

and rape attempts; and, he suffered a heart attack and a stroke.

As a result, Singletary and his wife, Rhonda Singletary, each

asked the Sheriff to transfer Singletary from the jail. In

September 1990, the Sheriff approved a transfer to the misdemeanor

probation office.

In February 1993, Rhonda Singletary was elected to the Many,

Louisiana, city council. That May, before taking office in July,

she was instrumental in helping pass a sales tax to fund building

a new parish jail, which the Sheriff had been seeking. And, in

mid-September, she voted in favor of connecting that new jail to

the municipal sewage and water service.

At an early November council meeting, the Sheriff requested

that the council grant a 50-foot wide right-of-way along Buffalo

Drive, which was owned by the city, to allow access to the new

jail. At a late November council meeting, Rhonda Singletary moved

instead for the council to abandon the right-of-way on Buffalo

Drive, with the exception of an asphalt drive then in use. The

council voted unanimously in favor of this motion.

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 The Sheriff testified at trial that he was “a little

aggravated” by Rhonda Singletary’s actions. In fact, he asked

Singletary to “get his wife off of [the Sheriff’s] back”.

Singletary responded that he and his wife kept their working roles

separate and that, instead, the Sheriff would have to talk to

Rhonda Singletary. The Sheriff felt that Singletary could not

“handle” his wife and “couldn’t figure out [how] a husband or an

employee of [the Sheriff] couldn’t go talk to their wife and see if

they couldn’t ... get it straight”.

At an early December council meeting, the Sheriff again

requested that the council grant the Buffalo Drive right-of-way.

The council voted three to one, with Rhonda Singletary as the sole

negative vote, to grant one 32 feet wide.

At a mid-April 1994 council meeting, in response to citizens’

complaints about speeding by sheriff’s deputies, the council voted

to install speed bumps on Buffalo Drive. The Sheriff testified at

trial that he was “not really mad” about this vote. Singletary

testified, however, that, immediately after the vote, the Sheriff

told him to “go to the house and get [his] wife straightened out”;

that Singletary again told the Sheriff that he did not “get mixed

in council business”; and that the Sheriff stormed out of the

office.

In August 1994, the Sheriff asked the council to have the city

help pay for repairs to Buffalo Drive, which had been damaged

during construction of the new jail. At a council meeting in mid-

August, it was tentatively agreed that the repair costs would be

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divided equally between the city, the sheriff’s department, and the

police jury; but, the council denied the proposal because specific

information about actual costs was not then available.

At a police jury meeting the next day, regarding the cost-

sharing plan, Rhonda Singletary expressed concern, stating that the

city had already done its part by funding the new jail.

Nevertheless, the police jury voted to share in the repair costs.

On 24 August, a local newspaper published Rhonda Singletary’s

comments to the police jury. At trial, she testified that she

received a telephone call that same day in which the caller,

identifying himself as Deputy John Rainer, a political opponent of

the Sheriff, told her that, if she opposed the Sheriff, her husband

would lose his job or be demoted and transferred to the new jail.

Later that same day, Chief Deputy Bobby Brumley, the Sheriff’s

cousin, informed Singletary that he was to be transferred to the

new jail. The Chief Deputy told Singletary that he was not being

transferred because of his wife’s political opposition, but because

he was the most qualified person for the position.

The council met two days later, on 26 August, to vote on

whether to share the Buffalo Drive repair costs. Rhonda Singletary

told the council that her husband was being victimized because of

her opposition to the proposal and that, to avoid any further

retaliation, she had no choice but to abstain. The council voted

two to one to share in the repair costs.

Singletary testified that he asked the Sheriff not to transfer

him, but the Sheriff told him that it was out of his hands and that

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the Chief Deputy was handling it. The Sheriff testified that his

Chief Deputy had originally suggested transferring Singletary

because he was the most qualified and had agreed to help out at the

new jail.

The doctor who had been treating Singletary for several years

advised him to resign due to his previous health problems resulting

from working at the old jail. In early September 1994, Singletary

did so. The Sheriff testified that he was shocked by the

resignation and that he had no reason to believe that Singletary

was unhappy about the transfer.

In August 1995, Rhonda and Jerry Singletary filed this action

under 42 U.S.C. § 1983 against the Sheriff, in his individual and

official capacities. They alleged that the transfer was in

retaliation for Rhonda Singletary’s opposition to the Buffalo Drive

matters; and claimed that the Sheriff’s actions violated “their

First Amendment rights of free speech, political activities, and

freedom of association”.

In answer to special interrogatories, the jury found: (1) that

Singletary’s exercise of his constitutionally protected rights was

a substantial or motivating factor in his being transferred to the

new jail (and awarded compensatory damages of $2,000); (2) that the

Sheriff, in his individual and official capacity, did not violate

Singletary’s constitutional rights (interrogatories 2 and 3); (3)

that Singletary’s transfer was not a constructive discharge; (4)

that the Sheriff did not violate Rhonda Singletary’s constitutional

rights; (5) that the Sheriff did not act with malice and wilfulness

5
or callous indifference to Rhonda Singletary’s constitutional

rights; (6) that Rhonda Singletary suffered no damages as a result

of the Sheriff’s wrongful actions; but, in answer to interrogatory

12, (7) that the Sheriff acted with malice and wilfulness or

callous indifference to Singletary’s constitutional rights (and

awarded punitive damages of $50,000).

Needless to say, the district court ruled that the answers to

interrogatories 2, 3, and 12 were inconsistent. In sum, by

answering negatively to numbers 2 and 3, but positively to 12, the

jury found that the Sheriff did not violate Singletary’s

constitutional rights, but yet acted with malice and wilfulness or

with callous indifference concerning those rights.

The court instructed the jurors that the responses to

interrogatories 2, 3, and 12 were inconsistent, and gave them an

opportunity to change them. The jury next found in the negative as

to interrogatory 3 (Sheriff’s individual capacity), but in the

affirmative as to numbers 2 and 12, finding that the Sheriff, in

his official capacity, did violate Singletary’s constitutional

rights and in so doing had acted with malice and wilfulness or with

callous indifference.

Post-trial, the district court considered whether the Sheriff,

in his official capacity, could be held liable for punitive

damages. It reasoned that, although “punitive damages are not

available against government officials acting in their official

capacity”, the jury had found that “Sheriff Brumley had acted with

malice and he deserved to be punished accordingly”. Therefore, the

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district court reasoned, the inconsistency in the verdict was based

on a misunderstanding of the court’s instructions; “a logical and

probable explanation exist[ed]” for the verdict; and the award of

compensatory and punitive damages against the Sheriff was valid.

On the other hand, and concerning the other claims, because

the original verdict found that Singletary had not been

constructively discharged, the court dismissed that claim with

prejudice. And, it held that the original verdict was consistent

as to Rhonda Singletary and, therefore, dismissed her claims with

prejudice.

After both sides moved unsuccessfully for judgment as a matter

of law (as the Sheriff had done at the conclusion of the

Singletarys’ case-in-chief, as well as at the close of all the

evidence), or, in the alternative, for new trial, they appealed.

Judgment was stayed pending appeal.

II.

The Sheriff contends (1) that the first verdict, finding that

he had not violated Singletary’s constitutional rights, should be

reinstated; (2) that, in the alternative, the second verdict,

finding him liable in his official capacity, was misinterpreted by

the district court and does not support awarding punitive damages;

(3) that, in the further alternative, the evidence was insufficient

to support finding that Singletary’s First Amendment rights were

violated by the transfer; and (4) that the punitive damages are

excessive.

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 By cross-appeals, the Singletarys maintain that the evidence

does not support the jury’s finding (1) that Singletary was not

constructively discharged; (2) that the Sheriff did not violate

Rhonda Singletary’s constitutional rights; and (3) that the Sheriff

did not act either with malice and wilfulness or with callous

indifference to her constitutional rights.

For the reasons discussed infra, we conclude that the Sheriff

prevails on the liability issues presented by the appeal and cross-

appeals. Therefore, we do not reach the other issues raised by the

parties.

As discussed infra, violations vel non of First Amendment

rights generally involve issues of law, which we, of course, review

de novo. On the other hand, for sufficiency of the evidence

issues, our standard of review is likewise well-established. We

will uphold a jury verdict “unless ‘there is no legally sufficient

evidentiary basis for a reasonable jury to find’ as the jury did”.

Hiltgen v. Sumrall, 47 F.3d 695, 699-700 (5th Cir. 1995) (quoting

FED. R. CIV. P. 50(a)(1)).

A.

Under 42 U.S.C. § 1983, any person who, under color of state

law, deprives another “of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress”. In short, “an underlying constitutional

or statutory violation is a predicate to liability under § 1983”.

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Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573

(5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990).

The Sheriff maintains that Singletary did not prove a claim of

retaliation for the exercise of his First Amendment rights. In

this regard, Singletary’s specific First Amendment contentions are

unclear. As noted, the complaint states that the Sheriff violated

the Singletarys’ “First Amendment rights of free speech, political

activities, and freedom of association”. The pretrial order

mentions the Singletarys’ “First Amendment rights”, but, in the

section listing their specific legal contentions, mentions Rhonda

Singletary’s freedom of speech, and, with respect to Jerry

Singletary, only that his “right of free association was violated”.

The Singletarys’ proposed jury instructions stated that they

contend that their “rights of free speech, political activity, and

association were violated by [the Sheriff] when he demoted

[Singletary] because of his wife’s political opposition”. They

later filed an additional proposed instruction explaining the

“right of freedom of thought”, which “includes both the right to

speak freely and the right to refrain from speaking at all”, all

encompassed by the “broader concept of ‘individual freedom of

mind’”.

The Sheriff’s proposed instructions stated that Singletary

contended that he was constructively discharged “because of his

exercise of the right of free speech” and also mentioned a “free

association claim”. And, in their objections to the district

court’s instructions, the Singletarys requested that political

9
activity and/or association be added to the right of free speech

listed in those instructions.

The instructions submitted to the jury stated that Singletary

claimed that he suffered retaliation because of “his exercise of

the right of free speech and association”. Moreover, in response

to a jury note expressing confusion over what constitutional rights

were claimed, and by which plaintiff, the court responded that the

rights complained of were (1) “the right to associate with whom one

pleases without fear of intimidation or punishment by government

officials”; (2) “the right of free speech, that is the right to

make known (or [withhold]) one’s thoughts”; and (3) “as to Mrs.

Singletary - as an elected official, she has the protected right to

cast her vote without fear of official/governmental interference”.

Along this line, and most significantly, Singletary states

here only that his claim is based on his right to free speech; it

makes no mention of the right of association with respect to him.

But, out of an abundance of caution, and because the First

Amendment, which is mentioned generally in Singletary’s brief and

throughout the course of the trial, encompasses both freedom of

speech and association, we address both of these rights with

respect to Singletary’s § 1983 claim.

As noted, First Amendment violations vel non generally involve

issues of law, at least in part if not in whole; issues of law are

reviewed de novo. E.g., Cabrol v. Town of Youngsville, 106 F.3d

101, 109 (5th Cir. 1997). But, because Singletary’s First

Amendment claims are in large part fact-driven, it is arguable

10
that, as posed by the Sheriff, they concern sufficiency of the

evidence matters. Apparently, that is the manner in which they

were treated by the district court.

Of course, no authority need be cited for the fact that we

alone determine the proper standard of review. In this instance,

because of the quite unique factual backdrop presented, we have

reviewed the First Amendment issues under both standards. And,

under each, Singletary’s claims are wanting.

1.

In determining whether a public employee’s speech is afforded

First Amendment protection from retaliation, our court employs a

three-part test: (1) whether the speech involves a matter of public

concern; (2) whether the employee’s interest in speaking about

public concerns outweighs the employer’s interest in efficiency;

and (3) whether the employer’s decision to discharge the employee

was motivated by the employee’s speech. E.g., Thompson v. City of

Starkville, Miss., 901 F.2d 456, 460 (5th Cir. 1990). A First

Amendment retaliation claim must allege facts demonstrating that

the speech involved a matter of public concern, before we will

analyze the reasons for the discharge. Connick v. Myers, 461 U.S.

138, 146-47 (1983).

For speech to involve a matter of public concern, the speaker

must be acting as a citizen, rather than as an employee addressing

merely personal concerns. Id. at 147; Thompson, 901 F.2d at 465.

Whether speech involves a public, rather than a personal, concern

is determined by the content, form, and context of the statement,

11
viewed in the light of the entire record. Connick, 461 U.S. at

147-48.

Of course, freedom of speech encompasses “both the right to

speak freely and the right to refrain from speaking at all”.

Wooley v. Maynard, 430 U.S. 705, 714 (1977); see Jones v. Collins,

132 F.3d 1048, 1054-55 (5th Cir. 1998). As stated in Hays County

Guardian v. Supple, 969 F.2d 111, 123 (5th Cir. 1992) (emphasis

added), cert. denied, 506 U.S. 1087 (1993), this “right to refrain

from speech is violated when the government compels an individual

to endorse a belief that [he or she] finds repugnant”. See Wooley,

430 U.S. at 715 (holding unconstitutional New Hampshire statute

requiring state motto “Live Free or Die” to be displayed on

automobile licence plates, because statute required “public view”

of “an instrument for fostering public adherence to an ideological

point of view [the individual] finds unacceptable”); Miami Herald

Pub. Co. v. Tornillo, 418 U.S. 241 (1974) (holding that state

statute requiring newspaper to publish responses of political

candidates criticized by newspaper violated First Amendment); West

Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding

that state statute compelling public school students to participate

in public ceremonies saluting United States’ flag violated First

Amendment).

On two occasions, as detailed supra, the Sheriff asked

Singletary to “get [his] wife straightened out” so that she would

“quit causing [the Sheriff] so many problems on [the] jail issue”.

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Restated, the Sheriff was ordering Singletary to get his wife to

stop opposing the Sheriff.

The question, for First Amendment purposes, is whether

Singletary was being ordered to endorse or support the Sheriff’s

positions on the issues on which Rhonda Singletary opposed the

Sheriff. It can certainly be argued that, indirectly, this is

exactly what the Sheriff was doing. If Rhonda Singletary didn’t

oppose the Sheriff’s positions, her other two options were to

support them or abstain/take no position. But, for a First

Amendment violation, more direct or positive indicators are

required. Cf. Nicholson v. Gant, 816 F.2d 591, 599 (11th Cir.

1987) (holding that First Amendment protects plaintiff’s silence

when she “clearly expressed her desire not to read [a] prepared

statement at [a] political rally”); Sykes v. McDowell, 786 F.2d

1098, 1104 (11th Cir. 1986) (deputy’s refusal to sign newspaper

advertisement endorsing sheriff’s campaign was protected speech

because “a public employee who positively asserts the right not to

speak when ordered to support his employer [politically] is within

the protection of the [F]irst [A]mendment”).

For activities to constitute expressive
conduct and fall within the scope of the First
Amendment, they must be sufficiently imbued
with elements of communication. In deciding
whether particular conduct possesses
sufficient communicative elements to bring the
First Amendment into play, we ask whether an
intent to convey a particularized message was
present and whether the likelihood was great
that the message would be understood by those
who viewed it.

13
Cabrol, 106 F.3d at 109 (internal quotation marks and citation

omitted).

In any event, the answer is found in Singletary’s response to

the order that he speak to his wife. It was not that he did not

agree with the Sheriff’s position and, therefore, declined to

endorse it; instead, it was that Singletary and his wife kept their

respective positions separate and he didn’t participate in city

council matters. As stated in Jones, 132 F.3d at 1055, “[n]othing

... indicates that [Singletary] intended [his] silence ... to

constitute a statement of any sort”.

In sum, Singletary was not refraining from endorsing a

position on a matter of public concern. Instead, he was only

refraining from telling his wife to quit opposing the Sheriff. His

reasons for that refusal were not speech-driven; they were for

marital agreement/harmony, addressed infra.

Again, we would be presented with a different case if, for

example, the Sheriff had demanded that Singletary sign a petition

challenging Rhonda Singletary’s views. But, instead, the Sheriff

demanded only that Singletary “straighten out” his wife. In short,

Singletary’s stated reasons for refusing to do so did not implicate

an exercise of speech protected by the First Amendment.

As we stated in Thompson, “[t]he rationale behind the public

concern requirement is to prevent public employees from relying on

the Constitution for redress of personal grievances”. 901 F.2d at

461. And, as we are reminded by the Supreme Court in Connick,

[w]hen employee expression cannot be fairly
considered as relating to any matter of

14
 political, social, or other concern to the
community, government officials should enjoy
wide latitude in managing their offices,
without intrusive oversight by the judiciary
in the name of the First Amendment.
...
[W]hen a public employee speaks not as a
citizen upon matters of public concern, but
instead as an employee upon matters only of
personal interest, absent the most unusual
circumstances, a federal court is not the
appropriate forum in which to review the
wisdom of a personnel decision taken by a
public agency allegedly in reaction to the
employee’s behavior.

461 U.S. at 146-47. That is the case here.

2.

Again, the specific First Amendment right on which Singletary

relies is unclear from the record and briefs. But, as discussed

supra, out of an abundance of caution, we also address the right of

association.

Although the Constitution does not expressly provide for a

right of association, the Supreme Court has long recognized two

such constitutional protections: (1) protection of “intimate human

relationships”, which are “a fundamental element of personal

liberty”; and (2) “a right to associate for the purpose of engaging

in those activities protected by the First Amendment--speech,

assembly, petition for the redress of grievances, and the exercise

of religion”. Roberts v. United States Jaycees, 468 U.S. 609, 617-

18 (1984); see also Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir.

1992).

Singletary does not appear to be invoking the second type of

associative right, which concerns the “right to associate with

15
others in pursuit of a wide variety of political, social, economic,

educational, religious, and cultural ends”. Roberts, 468 U.S. at

622.

As for the first type of right of association, it serves to

protect “certain kinds of highly personal relationships ... from

unjustified interference by the State”. Id. at 618. Marriage fits

within this type. See Zablocki v. Redhail, 434 U.S. 374, 383-86

(1978). “A defendant can be held liable for violating a right of

intimate association only if the plaintiff shows an intent to

interfere with the relationship.” Morfin v. Albuquerque Pub. Sch.,

906 F.2d 1434, 1440 (10th Cir. 1990) (emphasis added).

Obviously, no such intent to interfere was shown in this case.

The Singletarys’ right to the association of marriage was not

violated by the Sheriff’s orders to Singletary to “straighten out”

his wife. Far more than that is required to have a valid claim of

this type.

B.

As noted, the cross-appeals are also unfavorable to the

Singletarys.

1.

Singletary contends that the transfer to the new jail was a

demotion and, therefore, constituted a constructive discharge.

Such discharge occurs when the employer makes “working conditions

... so difficult or unpleasant that a reasonable person in the

employee’s shoes would have felt compelled to resign”. Bozé v.

Branstetter, 912 F.2d 801, 804 (5th Cir. 1990). This determination

16
is made under an objective, reasonable-person standard. Id.

(citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.

1980)).

Singletary was transferred from his position as a misdemeanor

probation officer to a position as a day-shift supervisor at the

new jail. The new position had the same rank and salary. And,

Singletary conceded that he had never been in the new jail before

he resigned. In sum, reasonable jurors could find, as they did in

this case, that Singletary was not constructively discharged. See

Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996).

2.

Rhonda Singletary asserts that the evidence does not support

the jury’s finding no violation of her claimed constitutional

rights.

a.

She contends that the Sheriff’s retaliation against her

husband pressured her to abstain from voting at the 26 August 1994

council meeting on whether to share in repair costs for Buffalo

Drive. At oral argument, her counsel conceded that he was unaware

of any precedent to support the proposition that the Sheriff’s

transfer of Singletary, which allegedly intimidated Rhonda

Singletary, an elected official, into abstaining from voting, is a

violation of Rhonda Singletary’s First Amendment rights. Nor do we

see any basis for this claim. Surely, public officials must be

made of sterner stuff. The above-quoted cautions in Connick and

17
Thompson against finding a First Amendment violation under every

bush apply four-fold to this asserted violation.

b.

Rhonda Singletary contends also that the Sheriff violated her

right of association in her marriage relationship when he told

Jerry Singletary to get her “straightened out”. For the reasons

stated supra, regarding the identical contention apparently raised

by Jerry Singletary, this contention fails.

c.

For the first time in her reply brief, Rhonda Singletary

contends that, under Louisiana law, she owns a one-half interest in

the community property of her marriage and, therefore, her

husband’s constructive discharge denied her the benefit of his

income. Needless to say, it is unclear how this argument affects

her claimed constitutional violations. See Jenkins v. Carruth, 583

F. Supp. 613, 616 (E.D. Tenn. 1982) (“The law seems clear that one

person may not sue, nor recover damages, for the deprivation of

another person’s civil rights.”). This contention seems to relate

only to the constructive discharge issue; an issue on which, as

discussed supra, Jerry Singletary does not succeed. In any event,

because this issue was not presented until the reply brief, we do

not address it. E.g., NLRB v. Cal-Maine Farms, Inc., 998 F.2d

1336, 1342 (5th Cir. 1993) (“[T]his court has repeatedly held ...

[that] we will not review arguments raised for the first time in a

reply brief.”).

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 III.

Accordingly, with respect to that part of the judgment

pertaining to Jerry Singletary’s First Amendment retaliation claim,

we REVERSE and RENDER for Sheriff Brumley; with respect to those

parts of the judgment pertaining to Jerry Singletary’s constructive

discharge claim and Rhonda Singletary’s claims, we AFFIRM.

AFFIRMED in PART; REVERSED and RENDERED in PART

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