Fiesel v. Cherry, 01-20142.

• Decision Date: 12 June 2002
• Docket Number: No. 01-20142.,01-20142.
• Citation: 294 F.3d 664
• Parties: Tom FIESEL, Plaintiff-Appellant, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

294 F.3d 664

Tom FIESEL, Plaintiff-Appellant, v. 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.

No. 01-20142.

United States Court of Appeals, Fifth Circuit.

June 12, 2002.

Trang Q. Tran (argued), Tran Law Firm, Houston, TX, for Plaintiff-Appellant.

Sharon Felfe, Asst. Atty. Gen. (argued), Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

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 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.

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 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...