UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20142
TOM FIESEL,
Plaintiff-Appellant,
VERSUS
DESSIE F. CHERRY, individually and in her official
capacity as Senior Warden I, Texas Department of Criminal
Justice; LEPHER JENKINS, individually and in his official
capacity as Regional/Section Director, Texas Department of
Criminal Justice; JAMES E. BUSH, in his official capacity
as Director, Human Resources and Staff Development, Texas
Department of Criminal Justice; CYNTHIA N. MILNE, in her
official capacity as Legal Affairs, Texas Department of
Criminal Justice; JANIE COCKRELL, in her official capacity
as Deputy Director, Texas Department of Criminal Justice;
GARY L. JOHNSON, Director; JAMES WILLET, individually and
in his official capacity as Senior Warden, Texas
Department of Criminal Justice,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
June 12, 2002
Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:
Appellant, Tom Fiesel, brought suit against Dessie Cherry,
Lepher Jenkins and James Willet, each employees and officials of
the Texas Department of Criminal Justice (“TDCJ”), alleging that
they used their positions to abridge his First Amendment right to
freedom of speech, thereby rendering them culpable for violations
of his civil rights, as recognized by 42 U.S.C. § 1983. The
defendants moved for summary dismissal of the suit pursuant to Fed.
R. Civ. P. 56(c), contending that Fiesel’s allegations failed to
raise a genuine issue of material fact as to whether their conduct
violated his civil rights and that they were entitled to qualified
immunity. A magistrate judge recommended that the motion be
denied. The district court declined to accept the magistrate
judge’s recommendation and granted the defendants’ summary judgment
motion. The district court held that, as a matter of law, Fiesel’s
speech did not involve a matter of public concern and that the
defendants’ were also entitled to qualified immunity. Fiesel now
appeals. We affirm.
BACKGROUND
Tom Fiesel, a former corrections officer at the Goree Unit of
the Texas Department of Criminal Justice-Institutional Division
(“TDCJ”), brought a civil rights suit for retaliation in violation
of his First Amendment rights against Dessie Cherry, the Senior
Warden at the Goree Unit; Lepher Jenkins, a TDCJ Regional/Section
Director; James Willet, another Senior Warden; James Bush, Director
of Human Resources; Cynthia Milne, a TDCJ Legal Affairs official;
Janie Cockrell, TDCJ Deputy Director; and Gary Johnson, TDCJ
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Director. Bush, Milne, Cockrell, and Johnson were dismissed and
are not involved in the present appeal.
According to Fiesel, on the morning of January 7, 1998,
Michael Bloodworth, another TDCJ corrections officer, asked Fiesel
to accompany him to a meeting in Warden Cherry’s office. Several
days earlier, Bloodworth had been the reporting officer in an
incident where an inmate was found in possession of marijuana. The
inmate claimed that Bloodworth had planted the marijuana on him,
and the meeting with Cherry concerned the inmate’s allegations and
an investigation by the Internal Affairs Department (“IAD”). Prior
to the meeting, Bloodworth had asked Cherry to allow Fiesel to be
present for support as a non-participating observer. Fiesel agreed
to attend the meeting with Bloodworth. After his shift ended at
6:00 a.m., Fiesel went home, changed out of his uniform, and
returned to meet Bloodworth in Cherry’s office.
Bloodworth and Fiesel met with Cherry and Major McGee.
According to Fiesel, both Cherry and McGee questioned whether
Bloodworth was lying about his involvement with the marijuana, and
Cherry reportedly told Bloodworth that he would be questioned by
IAD officers. During a break in the meeting, Bloodworth asked
Fiesel what he thought Bloodworth should do, and Fiesel recommended
that Bloodworth consult an attorney before being questioned further
by IAD.
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Bloodworth returned to Cherry’s office while Fiesel remained
outside in the hallway. Fiesel claimed that he heard Bloodworth
state that he wanted an attorney before being interrogated and then
someone said “no that he had to talk to them.” Fiesel then stepped
into the doorway and saw IAD officers Pittmon and Cole. Fiesel
claims he stated that “TDCJ employees in [Bloodworth’s] position
are just like any U.S. citizen [and] has [sic] the right to an
attorney before being questioned by police.” Cherry, however,
claims that Fiesel said to Bloodworth, “you’re not under arrest,
and, you don’t have to talk to them.” Pittmon, Cole, and Fiesel
engaged in a somewhat heated colloquy, with all three raising their
voices and asking to see each other’s identification. According to
Fiesel, Pittmon and Cole identified themselves as certified Texas
peace officers and told him that he was criminally trespassing.
Fiesel claimed that Pittmon then pushed him. Cherry and Bloodworth
each testified that Cherry asked Fiesel to leave, repeating the
request three times, but Fiesel claimed that he did not hear
Cherry. Cherry called for security to come to her office, and
Officer Pittmon escorted Fiesel to the front gate. The incident in
Cherry’s office lasted three to five minutes.
Cherry filed charges against Fiesel for violations of TDCJ
Code 13, failure to obey a proper order, and Code 44, tampering
with a witness, because Fiesel failed to obey her order to leave
the office and told Bloodworth that he did not have to talk with
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IAD. Willet conducted a disciplinary hearing on the charges and
recommended that Fiesel be terminated. Jenkins, as the level two
hearing officer, concurred with the decision to terminate. The
instant lawsuit followed.
The defendants filed a motion for summary judgment. The
magistrate judge recommended denying the motion, reasoning that the
content, context, and form of Fiesel’s speech showed that his
comments in Cherry’s office were made solely as a citizen with
respect to the availability of civil rights protections that he
believed should have been afforded to Bloodworth. The magistrate
judge determined that Fiesel’s speech concerned his perception of
misconduct on the part of the IAD officers, and, as such, the
speech was a matter of public concern that, as a matter of law,
outweighed the state’s interest in efficiency. The magistrate
judge further reasoned that there was an issue of fact as to
whether Fiesel’s speech was disruptive or undermined agency
discipline, and also rejected the defendant’s claim of qualified
immunity because there were fact issues as to whether they acted
reasonably.
The district court declined to accept the magistrate judge’s
recommendation and granted the defendants’ summary judgment motion.
The district court held that, as a matter of law, Fiesel’s speech
did not involve a matter of public concern, reasoning that Fiesel’s
statement that Bloodworth did not have to talk to IAD was
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“primarily a personal communication to a co-worker” and did not
address TDCJ policy or law concerning an employee’s right to
counsel. Because Fiesel spoke as an employee on behalf of a co-
worker rather than as a citizen on behalf of the public, the court
held that Fiesel failed to show a constitutional violation.
The district court next determined that the defendants were
entitled to qualified immunity because they acted objectively
reasonably. The court reasoned that Cherry ordered Fiesel to leave
the office only when he exceeded the bounds of her permission to be
present. Fiesel admitted that people began to talk all at once in
raised voices, and, although Fiesel claimed he did not hear
Cherry’s order, there was no evidence that Cherry knew he did not
hear her. The court also held that Fiesel failed to present
evidence showing that Willet or Jenkins were objectively
unreasonable in connection with his claim that they did not conduct
independent investigations of the disciplinary charges. The court
reasoned that the record showed Fiesel and his counsel participated
in the disciplinary hearing and presented evidence to Willet, and
they argued their position in an appeal hearing before Jenkins.
Fiesel filed a timely Rule 59(e) motion, which the district court
denied. Fiesel then filed a timely notice of appeal.
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DISCUSSION
Standard of review
This Court reviews a district court’s grant of summary
judgment de novo. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th
Cir. 1992). Summary judgment is proper when, viewing the evidence
in the light most favorable to the nonmovant, “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Amburgey v. Corhart
Refractories Corp., Inc., 936 F.2d 805, 809 (5th Cir. 1991); FED.
R. CIV. P. 56(c). If the moving party meets the initial burden of
establishing that there is no genuine issue, the burden shifts to
the nonmoving party to produce evidence of the existence of a
genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
321-22 (1986). The nonmovant cannot satisfy his summary judgment
burden with conclusive allegations, unsubstantiated assertions, or
only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994)(en banc).
Did the district court err by granting the motion for summary
judgment because Fiesel’s speech was not a matter of public concern
as a matter of law?
A public employee may not be discharged, disciplined, or
punished for exercising the right to free speech. Rankin v.
McPherson, 483 U.S. 378, 383 (1987). A plaintiff making a First
Amendment retaliation claim must establish four elements: 1) that
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he has suffered an adverse employment decision; 2) that his speech
involved a matter of public concern; 3) that his interest in
commenting on matters of public concern outweigh the defendant’s
interest in promoting efficiency; and 4) that the speech motivated
the defendant’s action. Harris v. Victoria Indep. Sch. Dist., 168
F.3d 216, 220 (5th Cir. 1999).
Whether speech involves a matter of public concern is
“determined by the content, form, and context of a given statement,
as revealed by the whole record.” Connick v. Myers, 461 U.S. 138,
147-48 (1983). The employee must speak primarily in his role as a
citizen rather than as an employee addressing matters only of
personal concern. Harris, 168 F.3d at 221.
Fiesel argues that the district court erred in determining
that his speech was not a matter of public concern. He contends
that the district court improperly made a factual conclusion that
his remarks were addressed only to Bloodworth rather than to the
room as a whole. He also argues that the court improperly found
Fiesel’s speech concerned only personal matters when the defendants
did not challenge the exact content of the speech or the identity
of his audience. Fiesel argues that because he spoke about a
perceived civil rights violation of another person and was off
duty, in civilian clothes, he was speaking as a citizen. He argues
that the content, context, and form of the speech shows that it was
a matter of public concern.
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We have reviewed the record and find that the district court
did not err because Fiesel’s speech was made solely on behalf of
his co-worker, Bloodworth, and in the context of Bloodworth’s
encounter with IAD investigators. As Fiesel’s First Amendment
retaliation claim is dependent upon establishing that his speech
was a matter of public concern, and because he has failed to
establish his speech as such, we need not review whether it was
error to find that the appellees were entitled to qualified
immunity.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not err in granting the
appellees’ motion for summary judgment. We therefore AFFIRM the
district court’s decision.
AFFIRMED.
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