Fiesel v. Cherry

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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