The opinion
Case: 20-30456 Document: 00516107424 Page: 1 Date Filed: 11/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 24, 2021
No. 20-30456
Summary Calendar Lyle W. Cayce
Clerk
Bruce Committe,
Plaintiff—Appellant,
versus
Vickie Gentry,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:19-CV-122
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Vickie Gentry, the Provost and Vice-President for Academic Affairs
at Louisiana’s Northwestern State University (“NSU”), removed Bruce
Committe from his teaching responsibilities at NSU. Committe sued Gentry,
alleging that she had violated several of his constitutional rights. The district
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30456
court dismissed his claims, and Committe appealed. In our court, Committe
filed a motion to disqualify Gentry’s lawyer for an alleged conflict of interest.
He then filed another motion asking this court to have opposing counsel
arrested or summoned because she had allegedly violated his free speech
rights. Gentry responded by moving to strike Committe’s motions, to bar
him from filing further motions, and for a damage award under Federal Rule
of Appellate Procedure 38. We affirm the district court’s judgment. We also
deny Committe’s and Gentry’s motions.
I.
Bruce Committe was an assistant professor at NSU who began a one-
year term of employment in the fall of 2018. He was assigned to teach
accounting for the Spring 2019 term. Vickie Gentry removed his teaching
duties and assigned him other work at the start of the Spring 2019 term.
Committe alleges that Gentry pulled his teaching duties because he had
chosen to use a self-published textbook and syllabus that other accounting
faculty had not approved.
Committe sued Gentry in her personal capacity under 42 U.S.C.
§ 1983, seeking compensatory and punitive damages. He alleged that Gentry
violated his constitutional rights by removing him from his teaching duties.
Specifically, Committe alleged that Gentry violated: (1) his rights to
academic freedom, free speech, and freedom of the press under the First
Amendment; (2) his right to due process under the Fourteenth Amendment;
and (3) his privileges and immunities as protected by the Fourteenth
Amendment.
The district court dismissed Committe’s claims. It found that
Committe’s speech was made in his role as a state employee, not a private
citizen, so he failed to state a First Amendment claim. The court also rejected
Committe’s due process claim. It found that Committe lacked a property
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interest in continued employment because he was an at-will employee. And
at any rate, Gentry had not fired Committe or impugned his reputation at the
time he sued—she had only removed him from his teaching duties. Finally,
the court found that Committe had not stated a viable claim under the
Privileges and Immunities Clause of the Fourteenth Amendment, because
that clause governs States’ treatment of other States’ residents and was thus
inapplicable to Committe’s suit.
Committe appealed to us. While the appeal was pending, Committe
moved to disqualify opposing counsel due to an alleged conflict of interest.
But Committe did not attempt to establish that an attorney-client
relationship had existed between himself and opposing counsel. See In re Am.
Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992). Instead, Committe objected
to a letter he had received from opposing counsel asking him to send
litigation-related correspondence to opposing counsel instead of NSU
employees. After opposing counsel responded to Committe’s motion,
Committe filed another motion. This time he “move[d] this court to cause
the arrest, or summons to appear in court” of opposing counsel for the
alleged crime of requesting that litigation-related correspondence be sent to
opposing counsel. Gentry moved to strike these motions from the record. She
also sought an order barring Committe from filing further motions and an
award of damages and costs pursuant to Federal Rule of Appellate Procedure
38.
II.
Committe is proceeding pro se, and we construe the filings of pro se
litigants liberally. Coleman v. United States, 912 F.3d 824, 828 (5th Cir. 2019).
When construed liberally, Committe’s brief raises three claims. First, he
argues that he sufficiently pleaded violations of his First Amendment rights
to free speech and academic freedom. Second, he argues that Gentry is not
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entitled to qualified immunity from his § 1983 claims. Third, he argues that
the magistrate judge violated his due process rights by demonstrating bias in
favor of Gentry. Each claim lacks merit.
First, Committe argues that he sufficiently pleaded violations of his
First Amendment rights to free speech and academic freedom. “To establish
a § 1983 claim for violation of the First Amendment right to free speech,
[public university professors] must show that (1) they were disciplined or
fired for speech that is a matter of public concern, and (2) their interest in the
speech outweighed the university’s interest in regulating the speech.”
Buchanan v. Alexander, 919 F.3d 847, 853 (5th Cir. 2019). Committe does not
plausibly make either showing. He simply asserts that “the Defendant
remov[ed] Plaintiff from his teaching assignments based on the content of his
class planning document (syllabus) and Plaintiff’s choice of teaching
materials,” and this removal was “to create orthodoxy in the class room.”
Committe does not elaborate on this conclusory assertion, beyond
speculating that “[w]hat may have happened was the Defendant had a mental
lapse because of other events happening that may have overwhelmed her
judgment making.” Committe’s conclusory claim was properly dismissed.
Second, Committe argues that Gentry is not entitled to qualified
immunity from his § 1983 claims. He argues at length that his constitutional
rights to free speech and academic freedom are clearly established, such that
qualified immunity should not insulate Gentry from suit. Cf. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This argument does not help Committe
because he has not shown an underlying constitutional violation that Gentry
could be held liable for even in the absence of qualified immunity. He has not
plausibly alleged a First Amendment violation, as discussed above, and he
does not adequately brief any argument that Gentry violated any other
constitutional right.
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Third, Committe argues that the magistrate judge violated his due
process rights by demonstrating bias in favor of Gentry. Committe lodges a
plethora of grievances about how the magistrate judge handled his case. The
thrust of his complaint seems to be that the magistrate judge allowed Gentry
to raise a qualified immunity defense and gave Committe an insufficient
opportunity to develop facts to rebut it. Committe offers no authority
suggesting that any of the magistrate judge’s conduct, including his
consideration of the qualified immunity issue, amounted to a violation of his
due process rights.
III.
We now consider the parties’ motions. Committe has moved to
disqualify Gentry’s counsel for conflict of interest. “As a general rule, courts
do not disqualify an attorney on the grounds of conflict of interest unless the
former client moves for disqualification.” In re Yarn Processing Patent Validity
Litig., 530 F.3d 83, 88 (5th Cir. 1976). Committe does not allege that he is a
former client of Gentry’s counsel or show why any of the “narrow
exceptions” to our general rule, see id. at 89, should apply. We accordingly
deny Committe’s motion to disqualify.
After Gentry’s counsel opposed Committe’s motion to disqualify,
Committe doubled down by moving to have Gentry’s counsel arrested or
summoned to appear in court. The motion was based on counsel’s alleged
continuing crime of violating his constitutional rights by asking him to direct
litigation-related correspondence to counsel rather than to employees of
NSU. Committe’s motion is frivolous and is denied.
In response, Gentry moved to strike Committe’s motions from the
record and to bar Committe from filing any further motions during this
appeal without prior approval from the court. Because we affirm the district
court’s order in this opinion, concluding the appeal, these motions are moot.
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Gentry also filed a motion for damages and costs based on Federal
Rule of Appellate Procedure 38, which provides that “[i]f a court of appeals
determines that an appeal is frivolous, it may, after a separately filed motion
or notice from the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.” Rule 38 “confers broad
discretion on federal courts of appeals to award sanctions in any appeal the
court determines to be frivolous.” Sun Coast Res., Inc. v. Conrad, 958 F.3d
396, 398 (5th Cir. 2020). We have generally used our discretion to award Rule
38 sanctions in matters involving malice, as opposed to ineptitude. See id.
Although the district court noted that Committe has filed numerous
meritless suits against universities and their lawyers for alleged employment
discrimination or civil rights violations, this appears to be the first meritless
appeal that Committe has filed in our court. Accordingly, we exercise our
discretion not to grant sanctions under Rule 38 and deny Gentry’s motion.
Committe is nevertheless WARNED that further frivolous filings in this
court may lead to Rule 38 sanctions.
* * *
The district court’s judgment is AFFIRMED. Committe’s motions
to disqualify counsel and arrest or summon counsel are DENIED. Gentry’s
motion for Rule 38 sanctions is DENIED. Gentry’s motions to strike and to
bar further motions are DENIED AS MOOT.
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