UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-40354
J. DAVID BESSMAN, M.D.;
Plaintiff-Appellant,
v.
DON W. POWELL, M.D.; JACK B. APLERIN, M.D.; AND, JERRY C. DANIELS, M.D., PH.D.; Defendants-Appellees,
Appeal from the United States District Court for the Southern District of Texas (G-97-CV-1)
July 8, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Alleging deprivations of due process and free speech from
incidents related to his employment at the University of Texas
Medical Branch at Galveston (“UTMB”), Dr. J. David Bessman filed
the present suit under state law and 42 U.S.C. § 1983. After limited discovery regarding the qualified immunity of the
appellees, the district court dismissed Bessman’s claims and
awarded attorneys’ fees to the appellees. Finding no error, we
affirm the district court’s grant of summary judgment; however, we
vacate the award of attorneys’ fees.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Bessman is a full professor of hematology in the
Hematology/Oncology Division at UTMB, a division of the Department
of Internal Medicine. On November 17, 1994, Bessman was the
attending physician on the hematology/oncology service, including
the T9A Unit. Because he was ill, he was unable to come to work
until around 10:00 a.m. Around 9:45 a.m., without Bessman’s
knowledge, a physician’s assistant recommended an invasive medical
procedure for a patient and improperly signed a consent form for
the procedure. Without Bessman’s or any other faculty member’s
supervision, two inexperienced interns attempted the procedure.
The procedure was unsuccessful, and the patient, whose illness was
already advanced, died.
An investigation into the incident was initiated by
UTMB’s Risk Management Office and a separate investigation was
begun by Dr. Jerry C. Daniels, Associate Chair for Clinical Affairs
in the Department of Internal Medicine. On November 20 and 21,
Bessman submitted two narratives regarding the November 17 incident
to the Risk Management Office. On December 22, Daniels completed
his investigation of the incident. In the report, Daniels
criticized Bessman’s lack of supervision due to his late arrival
and failure to coordinate other supervision for the T9A Unit to
cover for his delay. In the wake of Daniels’s report, Dr. Don W.
Powell, Chair of the Department of Internal Medicine, issued a
formal letter of reprimand to Bessman for his conduct during the
2 November 17 incident and for a separate incident in which he signed
out as the on-call hematologist/oncologist on December 23-24, 1994,
assigning the on-call post to a physician with no training in the
specialty.
Shortly after the two incidents cited in Powell’s letter
to Bessman, Dr. Jack Alperin, acting Division Chief for the
Department of Hematology/Oncology during the relevant period,
conducted Bessman’s annual review. Alperin forwarded the completed
document to Powell for his examination. As he had done on several
occasions for Alperin’s reviews of employee performance, Powell
lowered the scores on Bessman’s evaluation.
Following these events, Powell placed a Blue Cross/Blue
Shield audit of Bessman’s work in his personnel file. The audit
was critical of Bessman’s performance.
Finally, in late 1996, Bessman was assigned to
investigate a patient care incident and draft a Quality Assurance
Report. After conducting an investigation, Bessman drafted a
report criticizing several actions by hospital employees during the
course of the patient’s treatment. Based on Bessman’s report,
Powell requested that Daniels conduct an independent review of the
situation. Daniels concluded that Bessman’s findings were
exaggerated or unsubstantiated.
II.
These events formed the basis of Bessman’s § 1983 claims.
Responding to appellees’ motion for summary judgment, Bessman
3 argued that Powell, Daniels, and Alperin engaged in a series of
retaliatory acts based on the reports drafted by Bessman following
the November 1994 incident and following his 1996 Quality Assurance
Report. These retaliatory acts included: (1) Powell’s formal
letter of reprimand, (2) Powell’s devaluation of the scores in
Bessman’s 1993-94 work evaluation, (3) Powell’s placement of the
Blue Cross/Blue Shield audit in Bessman’s personnel file, and (4)
Daniels’s actions in conducting the reviews of the November 1994
incident and the 1996 Quality Assurance Report. Bessman maintained
that the appellees’ conduct violated his free speech and due
process rights.
The district court disagreed, granting the appellees’
motion for summary judgment. First, the district court dismissed
the due process claims because Bessman had failed to establish the
deprivation of a liberty or property interest. Second, the
district court rejected Bessman’s state law claims on sovereign
immunity grounds. Third, the district court found that Bessman’s
statements did not qualify as protected speech under the First
Amendment because the statements were made by Bessman primarily in
his role as an employee – not regarding a matter of public concern.
Alternatively, the district court assumed a prima facie First
Amendment claim but, based on the less-than-public nature of
Bessman’s speech, ruled that no reasonable public official would
have known that the complained-of actions would have violated
Bessman’s constitutional rights.
4 On appeal, Bessman questions the district court’s
rulings. Claiming the Powell letter constituted a reprimand,
Bessman maintains that the letter deprived him of constitutionally
protected liberty and property interests without procedural due
process. Bessman next argues that his speech did reach a matter of
public concern – the care of patients in a public hospital. Based
on the assumed public nature of the statements, Bessman contends
that the actions of the appellees could not be considered
objectively reasonable.
III.
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards as
the district court. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 205 (5th Cir.), cert. denied, --- U.S. ---, 119 S. Ct.
509 (1998). Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the nonmoving party, the
record reflects that no genuine issue of material fact exists, and
the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,
2552-53 (1986); see also Fed. R. Civ. P. 56(c).
A public official performing a discretionary function is
entitled to qualified immunity from civil liability unless the
official’s conduct violates clearly established constitutional or
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-40354
J. DAVID BESSMAN, M.D.;
Plaintiff-Appellant,
v.
DON W. POWELL, M.D.; JACK B. APLERIN, M.D.; AND, JERRY C. DANIELS, M.D., PH.D.; Defendants-Appellees,
Appeal from the United States District Court for the Southern District of Texas (G-97-CV-1)
July 8, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Alleging deprivations of due process and free speech from
incidents related to his employment at the University of Texas
Medical Branch at Galveston (“UTMB”), Dr. J. David Bessman filed
the present suit under state law and 42 U.S.C. § 1983. After limited discovery regarding the qualified immunity of the
appellees, the district court dismissed Bessman’s claims and
awarded attorneys’ fees to the appellees. Finding no error, we
affirm the district court’s grant of summary judgment; however, we
vacate the award of attorneys’ fees.
* 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.
Bessman is a full professor of hematology in the
Hematology/Oncology Division at UTMB, a division of the Department
of Internal Medicine. On November 17, 1994, Bessman was the
attending physician on the hematology/oncology service, including
the T9A Unit. Because he was ill, he was unable to come to work
until around 10:00 a.m. Around 9:45 a.m., without Bessman’s
knowledge, a physician’s assistant recommended an invasive medical
procedure for a patient and improperly signed a consent form for
the procedure. Without Bessman’s or any other faculty member’s
supervision, two inexperienced interns attempted the procedure.
The procedure was unsuccessful, and the patient, whose illness was
already advanced, died.
An investigation into the incident was initiated by
UTMB’s Risk Management Office and a separate investigation was
begun by Dr. Jerry C. Daniels, Associate Chair for Clinical Affairs
in the Department of Internal Medicine. On November 20 and 21,
Bessman submitted two narratives regarding the November 17 incident
to the Risk Management Office. On December 22, Daniels completed
his investigation of the incident. In the report, Daniels
criticized Bessman’s lack of supervision due to his late arrival
and failure to coordinate other supervision for the T9A Unit to
cover for his delay. In the wake of Daniels’s report, Dr. Don W.
Powell, Chair of the Department of Internal Medicine, issued a
formal letter of reprimand to Bessman for his conduct during the
2 November 17 incident and for a separate incident in which he signed
out as the on-call hematologist/oncologist on December 23-24, 1994,
assigning the on-call post to a physician with no training in the
specialty.
Shortly after the two incidents cited in Powell’s letter
to Bessman, Dr. Jack Alperin, acting Division Chief for the
Department of Hematology/Oncology during the relevant period,
conducted Bessman’s annual review. Alperin forwarded the completed
document to Powell for his examination. As he had done on several
occasions for Alperin’s reviews of employee performance, Powell
lowered the scores on Bessman’s evaluation.
Following these events, Powell placed a Blue Cross/Blue
Shield audit of Bessman’s work in his personnel file. The audit
was critical of Bessman’s performance.
Finally, in late 1996, Bessman was assigned to
investigate a patient care incident and draft a Quality Assurance
Report. After conducting an investigation, Bessman drafted a
report criticizing several actions by hospital employees during the
course of the patient’s treatment. Based on Bessman’s report,
Powell requested that Daniels conduct an independent review of the
situation. Daniels concluded that Bessman’s findings were
exaggerated or unsubstantiated.
II.
These events formed the basis of Bessman’s § 1983 claims.
Responding to appellees’ motion for summary judgment, Bessman
3 argued that Powell, Daniels, and Alperin engaged in a series of
retaliatory acts based on the reports drafted by Bessman following
the November 1994 incident and following his 1996 Quality Assurance
Report. These retaliatory acts included: (1) Powell’s formal
letter of reprimand, (2) Powell’s devaluation of the scores in
Bessman’s 1993-94 work evaluation, (3) Powell’s placement of the
Blue Cross/Blue Shield audit in Bessman’s personnel file, and (4)
Daniels’s actions in conducting the reviews of the November 1994
incident and the 1996 Quality Assurance Report. Bessman maintained
that the appellees’ conduct violated his free speech and due
process rights.
The district court disagreed, granting the appellees’
motion for summary judgment. First, the district court dismissed
the due process claims because Bessman had failed to establish the
deprivation of a liberty or property interest. Second, the
district court rejected Bessman’s state law claims on sovereign
immunity grounds. Third, the district court found that Bessman’s
statements did not qualify as protected speech under the First
Amendment because the statements were made by Bessman primarily in
his role as an employee – not regarding a matter of public concern.
Alternatively, the district court assumed a prima facie First
Amendment claim but, based on the less-than-public nature of
Bessman’s speech, ruled that no reasonable public official would
have known that the complained-of actions would have violated
Bessman’s constitutional rights.
4 On appeal, Bessman questions the district court’s
rulings. Claiming the Powell letter constituted a reprimand,
Bessman maintains that the letter deprived him of constitutionally
protected liberty and property interests without procedural due
process. Bessman next argues that his speech did reach a matter of
public concern – the care of patients in a public hospital. Based
on the assumed public nature of the statements, Bessman contends
that the actions of the appellees could not be considered
objectively reasonable.
III.
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards as
the district court. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 205 (5th Cir.), cert. denied, --- U.S. ---, 119 S. Ct.
509 (1998). Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the nonmoving party, the
record reflects that no genuine issue of material fact exists, and
the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,
2552-53 (1986); see also Fed. R. Civ. P. 56(c).
A public official performing a discretionary function is
entitled to qualified immunity from civil liability unless the
official’s conduct violates clearly established constitutional or
statutory rights of which an objectively reasonable person should
have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
5 Ct. 2727, 2738 (1982); Coleman v. Houston Indep. Sch. Dist., 113
F.3d 528, 532-33 (5th Cir. 1997). Qualified immunity
determinations involve a two-step inquiry: first, whether the
plaintiff has alleged the violation of a clearly established
constitutional right, and second, if the right allegedly violated
is clearly established, whether the official’s conduct was
objectively reasonable. See id. at 533.
IV.
No consequence of Powell’s letter to Bessman following
the November 1994 incident deprived Dr. Bessman of a constitutional
right to liberty or property. See, e.g., Board of Regents v. Roth,
408 U.S. 564, 573-74, 92 S. Ct. 2701, 2707 (1972); Wells v. Doland,
711 F.2d 670, 676 (5th Cir. 1983) (citing Dennis v. S & S Consol.
Rural High Sch. Dist., 577 F.2d 338, 341 (5th Cir. 1978)). Even if
Bessman could demonstrate that he was not given the benefit of a
hearing to rebut the letter’s accusations – a showing that is
unlikely given Bessman’s post-letter meeting with Powell – UTMB did
not publicly disclose the letter. Bessman’s allegations of an
impaired property interest are speculative. Moreover, Bessman has
cited no authority establishing that a mere reprimand or warning,
absent discharge from present employment or some other tangible job
detriment together with a strong and false stigma created against
a person, may deprive an individual of a protected liberty
interest. To the extent we can understand the fuzzy arguments in
his brief, we conclude that Bessman has failed to establish his
6 due process claims. See, e.g., Siegert v. Gilley, 500 U.S. 226,
233-34, 111 S. Ct. 1789, 1794 (1991); Paul v. Davis, 424 U.S. 693,
709-10, 96 S. Ct. 1155, 1164-65 (1976).
Bessman’s First Amendment claims are equally
unmeritorious. Whether or not Dr. Bessman’s reports constituted
speech protected by the First Amendment, the only actual
“retaliation” he alleges was verbal or written. No job-affecting-
actions were taken against him. Under these circumstances – where
both the protected nature of the speech and the viability of
retaliation allegations are doubtful – the appellees were entitled
to qualified immunity. Noyola v. Texas Dep’t of Human Resources,
846 F.2d 1021, 1025-26 (5th Cir. 1988). No reasonable official in
appellees’ position would have known that his actions violated
clearly established constitutional law.
For the above-stated reasons, the district court properly
dismissed Bessman’s claims under § 1983 and his corresponding state
law claims.1 In addition, although the court’s florid opinion may
have been more caustic than the occasion warranted, no reversible
error is presented by its writing style alone. And the court did
1 The appellees clearly moved for summary judgment on the state law claims and Bessman chose not to respond. Bessman has taken the same tack on appeal, arguing only in passing that dismissal of the claims was improper. Absent more substantial argument, this ground of error is waived. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) (“[T]he failure to provide any legal or factual analysis of an issue results in waiver of that issue.”).
7 not abuse its discretion in the admonitions given to Bessman
regarding the filing of a motion for reconsideration.
The district court did err, however, in awarding
attorneys’ fees sua sponte to the appellees. An award of
attorneys’ fees to a § 1983 defendant is appropriate only when the
asserted claims are “frivolous, unreasonable, or without
foundation.” Coats v. Pierre, 890 F.2d 728, 733 (5th Cir. 1989).
Bessman’s claims in this matter, though weak, were sufficiently
reasonable to avoid the imposition of attorneys’ fees.
Accordingly, we affirm the decision of the district court
dismissing Bessman’s claims and vacate the award of attorneys’
fees.
AFFIRMED IN PART; VACATED IN PART.