McLean v. Town of Carolina Beach , 5 F. App'x 304 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES MCLEAN, 
Plaintiff-Appellant,
v.
TOWN OF CAROLINA BEACH, NORTH
CAROLINA, a body politic and
incorporate; TOWN OF CAROLINA
BEACH BOARD OF COMMISSIONERS
(TOWN COUNCIL); GEORGE ROSE, in
his individual and official
capacities; PAT EFIRD, individually
and in her official capacity; JOEL
MACON, individually and in his
official capacity; KIMBERLY ROBERTS,
individually and in her official
capacity; ANTHONY LORETI,  No. 00-1898
individually and in his official
capacity; RICK BURROUGHS,
individually and in his official
capacity; RAY ROTHROCK, in his
official capacity; CALVIN PECK, in
his official capacity; DENNIS
BARBOUR, in his official capacity;
MARK DUNSFORD, in his official
capacity; GARY DOETSCH, in his
official capacity; MIKE MAYER, in
his individual and official capacity;
DALE DAVIS, individually and in his
official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CA-99-17-F1)
2 MCLEAN v. TOWN OF CAROLINA BEACH
Submitted: March 8, 2001
Decided: March 16, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James McLean, Appellant Pro Se. Patricia Lee Holland, CRANFILL,
SUMNER & HARTZOG, L.L.P., Raleigh, North Carolina, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James McLean appeals the district court’s order denying relief on
his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint. McLean
alleged that he was wrongfully terminated from his position as a
police officer in retaliation for his accusations against town officials
and other members of the police department. He claimed that this dis-
charge violated his rights to free speech under the United States and
North Carolina Constitutions, and violated a North Carolina statute
that prohibited retaliatory discharge of state employees who report
improper government activities. See N.C. Gen. Stat. § 126-84, 86
(1999).
MCLEAN v. TOWN OF CAROLINA BEACH 3
We have reviewed the record and conclude that McLean’s speech
was not that of a private citizen speaking on a matter of public con-
cern, but that of an employee, entitled to lesser First Amendment pro-
tection. See McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998);
DiMeglio v. Haines, 45 F.3d 790, 804-05 (4th Cir. 1995). Moreover,
even assuming McLean’s speech merited full First Amendment pro-
tection, we conclude that his speech was not a substantial motivating,
or "but for" factor in his discharge, which was supported by numerous
violations of departmental regulations. Maciariello v. Sumner, 973
F.2d 295, 299-300 (4th Cir. 1992). McLean’s constitutional claims
were therefore properly dismissed. See Evans v. Cowan, 510 S.E.2d
170, 175 (N.C. App. 1999). McLean’s claim under the "whistle-
blower" statute is also without merit, as local police officers are not
within the group of employees for whom the statute provides protec-
tion. See Conran v. New Bern Police Dep’t, 468 S.E.2d 258, 259
(N.C. App. 1996).
Accordingly, we affirm the judgment of the district court. See
McLean v. Town of Carolina, No. CA-99-17-F1 (E.D.N.C. May 31,
2000). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED