Page v. Cooke County Texas ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-41386
Summary Calendar
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RONALD L. PAGE,
Plaintiff-Appellant,
versus
COOKE COUNTY, TEXAS; MICHAEL E. COMPTON,
Individually and As Sheriff of Cooke County, Texas,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
Lower Docket Number 4:98-CV-275
_________________________________________________________________
July 14, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Ronald Page sued Cooke County and Michael Compton, the
Sheriff of Cooke County, for civil rights violations and violation
of his rights under Texas common law in connection with the
termination of his employment as a jailer with the Cooke County
Sheriff’s Department. Specifically, Page claimed that Cooke County
and Compton discharged him in retaliation for exercising his Sixth
*
Pursuant to 5th Cir. 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opinion should not be published and is not precedent except under the limited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 Cir. Rule 47.5.4.
Amendment right to counsel1 and defamed and slandered him. The
district court granted summary judgment for the defendants.
Agreeing that no genuine issue of material facts exist, we affirm.
In July 1997, Compton learned of an allegation that Page
had engaged in sexual misconduct with several female inmates at the
Cooke County Jail. On July 24, 1997, Page was advised that he was
suspended with pay while the investigation into his alleged sexual
misconduct was pending.
On July 30, 1997, Page was notified, verbally and in
writing, that “it will be necessary for [him] to report to
[Compton’s] office at 10:00 a.m. on Friday August 1, 1997 for an
administrative meeting.” Page was further advised that “[a]t this
meeting we will discuss the allegations of sexual misconduct lodged
against you by female inmates in the Cooke County Jail.... Since
this is an administrative meeting you will not be allowed to have
counsel present.” Page failed to attend the August 1, 1997
mandatory meeting and, as a result, his employment was terminated
for insubordination.
Through an unknown source, the media learned of the
allegations of sexual misconduct and that a male jailer had been
suspended with pay. When questioned regarding this matter, Compton
declined to name the suspended jailer or provide any further
details. Several weeks after Page was fired, media reports
1
Page complains of the violation of his Fifth Amendment right to
counsel. The right to counsel actually derives from the Sixth Amendment. See
Arrington v. County of Dallas, 970 F.2d 1441, 1445 (5th Cir. 1992).
2
indicated that they knew Page’s employment had been terminated. In
an interview with a newspaper reporter Compton confirmed that Page
was the fired jailer and that he had been fired for not cooperating
with the departmental investigation. Compton also stated, in
response to questions from a television reporter as to the
frequency of the alleged misconduct, that “I think it had happened
enough to where he’d got where he liked it” and that the female
accusers were “back in our jail, but in this case they were
somewhat of a victim.”
Page then filed suit for civil rights violations and
defamation and slander. In May 1999, defendants moved for summary
judgment. In response, Page filed a motion for a protective order
asking the court to abate further proceedings until the criminal
proceedings against him were disposed. He asserted he was unable
to present affidavits essential to justify his opposition to
defendants’ motion without surrendering his Fifth Amendment
privilege against self incrimination. The district court held that
the defendant was not permitted to seek from Page incriminatory
answers to depositions, interrogatories, or requests for
production, but that Page still had a duty to produce evidence
supporting his claim for relief. Thereafter, Page filed his
response to the defendants’ motion for summary judgment, in which
he once again asserted that he was unable to present affidavits
opposing the motion for summary judgment without incriminating
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himself. The district court then granted the defendants’ summary
judgment motion.
Page now appeals the district court’s grant of summary
judgment to the defendant, arguing first that he was unable to
respond meaningfully to defendants’ motion for summary judgment
without surrendering his Fifth Amendment privilege against self
incrimination. For support, he relies on Wehling v. Columbia
Broadcasting System, 608 F.2d 1084 (5th Cir. 1980). In Wehling,
this Court held that the district court improperly dismissed
Wehling’s libel action after Wehling asserted his Fifth Amendment
privilege in response to questions posed at his deposition. See
id. at 1087. This case is clearly distinguishable. Page seeks not
only to avoid incriminatory answers to depositions,
interrogatories, or requests for production, but also to avoid
producing any evidence whatsoever to support his claims. United
States v. Rylander, 460 U.S. 752, 758, 103 S.Ct. 1548, 1552, 75
L.Ed.2d 521 (1983) rejected precisely this theory three years after
Wehling when it stated:
[W]hile the assertion of the Fifth Amendment privilege against
compulsory self incrimination may be a valid ground upon which
a witness such as Rylander declines to answer questions, it
has never been thought to be in itself a substitute for
evidence that would assist in meeting a burden of production.
Consequently, Wehling does not preclude the grant of summary
judgment against a plaintiff who relies on his Fifth Amendment
privilege to avoid producing evidence to support his claim.
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Page next contends that the district court should have
abated his case pending conclusion of the criminal prosecution for
these events only six or seven months later. Cleared of the
criminal charges, Page says he is now ready to respond. Page’s
availability to testify now does not, however, prove that the
district court abused its discretion in granting summary judgment.
Page has made no attempt to establish how the invocation of his
self-incrimination privilege prevented him from offering evidence
of the alleged slander or defamation, the grounds to deny Cooke
qualified immunity, or the basis for liability of Cooke County.
The magistrate judge’s opinion, adopted by the district court,
thoroughly explains why the defendants were entitled to summary
judgment. As far as we can tell (and with no briefing from Page to
the contrary), none of the court’s reasoning would have been
affected by Page’s testimony. As the Supreme Court said in
Rylander, the Fifth Amendment is a shield, not a sword. No abuse
of discretion occurred in the court’s refusal to abate.
For these reasons, the judgment of the district court is
AFFIRMED.
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