Bessman v. Powell

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opinion should not be published and is not precedent except under the limited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

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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

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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.

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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.

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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

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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.

V.

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.”).

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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.

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