     Case: 11-30692     Document: 00511884536         Page: 1     Date Filed: 06/12/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 12, 2012

                                     No. 11-30692                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DARRYL CUNNINGHAM,

                                                  Plaintiff - Appellant
v.

TERREBONNE PARISH CONSOLIDATED GOVERNMENT; TODD
DUPLANTIS; Individually and as Interim Chief, City of Houma Police
Department; TRAVIS THERIOT, Individually and as Detective, City of
Houma Police Department,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-8046


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        After conducting a three-day bench trial, the district court entered final
judgment in favor of Defendants-Appellees Terrebonne Parish Consolidated
Government (the “TPCG”), Chief Todd Duplantis (“Duplantis”), and Detective




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30692

Travis Theriot (“Theriot”) on all of Lieutenant Darryl Cunningham’s
(“Cunningham”) causes of action. We AFFIRM.
      Cunningham is an employee of the City of Houma Police Department (the
“HPD”), a department of the TPCG. In fall 2008, Cunningham learned that the
HPD representative to the City of Houma Municipal Fire and Police Civil
Service Board (the “Board”) was resigning, and he decided to run for the
position. However, Cunningham contends that HPD never posted notice seeking
candidates. When Cunningham later learned that a candidate had already been
nominated and that the election date had been scheduled, he complained to
Duplantis. Thereafter, Cunningham spoke with two reporters for the Houma
Courier (the “Courier”), the official newspaper of the TPCG where agendas,
meeting minutes, and notices relating to the Board were published, to inquire
if the Courier had published any notice about the election. The next day,
Duplantis received a call from a Courier reporter regarding the posting of the
election notice. When confronted, Cunningham first contended that the Courier
had initially contacted him but later admitted that he had initiated the contact.
      Citing departmental policy prohibiting employees from contacting the
media about departmental issues, Duplantis counseled Cunningham on his
conduct and placed an adverse supervisory note in Cunningham’s file. A few
days later, Duplantis received another call from the Courier.         The caller
mistakenly believed he was speaking with Cunningham and divulged
information to Duplantis potentially implicating Cunningham in departmental
policy violations. After this call, Duplantis initiated an internal affairs (“IA”)
investigation of Cunningham’s communication with the Courier, his
truthfulness, and insubordination (the “Courier IA investigation”).
      Later, Cunningham opened a letter addressed to Duplantis’s secretary.
Although he maintained that the letter had been placed mistakenly in his HPD
inbox, accusations of theft and mail tampering prompted Duplantis to initiate

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                                  No. 11-30692

another IA investigation of Cunningham; this time for theft, criminal mischief,
and truthfulness (the “Letter IA investigation”).
      Detective Theriot was assigned both of Cunningham’s IA investigations,
the first IA investigations of Theriot’s career. Theriot testified that, as part of
the Courier IA investigation, he decided to confer with the District Attorney (the
“DA”) about obtaining a subpoena for copies of Cunningham’s cell phone records
to check the dates of his communication with the Courier. Cunningham’s cell
phone is a personal cell phone, but he receives a monthly stipend from the TPCG
to cover the costs of any work-related calls. Theriot also testified that when he
conferred with the DA’s office—who ultimately issued the subpoena—he
unequivocally represented that the subpoena request was for the Courier IA
investigation only. At trial, the DA’s office contended that it lacks the authority
to issue subpoenas for IA investigations, but that the conversation with Theriot
gave the impression that the subpoena was for a criminal investigation into mail
theft or criminal mischief.
      Pursuant to the subpoena, which stated that it was for an IA investigation
and was signed by both the Assistant DA and a state court judge, Theriot
obtained Cunningham’s cell phone records. Later, when the DA’s Office realized
that the subpoena had been issued for an IA investigation, it instructed Theriot
to return the cell phone records, which he did. It is undisputed that Theriot is
the only one who viewed Cunningham’s cell phone records before turning them
over to the DA’s Office.
      During the pendency of the IA investigations, Cunningham was placed on
administrative leave with pay. The Courier IA investigation was unsustained
in all respects, but the Letter IA investigation was sustained as to truthfulness
and criminal mischief. However, the sustained findings were subsequently
overturned.



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                                       No. 11-30692

       A few months later, Cunningham received what he claims was the worst
performance evaluation rating of his career, but still above the minimum
required for a merit-based salary raise. However, Duplantis, who had sole
discretion regarding such raises, denied Cunningham a raise.
       Thereafter, Cunningham filed suit pursuant to 42 U.S.C. § 1983, alleging
that Defendants-Appellees violated his civil rights. Specifically, Cunningham
alleged that in violation of state and federal law, Defendants-Appellees (1)
retaliated against him for communicating with the Courier in violation of his
right to free speech, (2) unlawfully searched and seized his personal cell phone
records, and (3) violated his right to privacy in connection with the personal cell
phone records.
       After conducting a bench trial, the district court issued oral findings of fact
and conclusions of law. The district court explicitly credited Duplantis’s trial
testimony over Cunningham’s that, notwithstanding Cunningham’s contact with
the Courier, he would have denied Cunningham’s raise based on his violations
of departmental policy and repeated caustic remarks made toward his
supervisors. In addition, the district court found Theriot’s testimony credible
that he unequivocally represented to the DA’s office that the requested subpoena
was for the Courier IA investigation, and it concluded that Cunningham failed
to controvert with any credible evidence that Theriot acted in good faith.1 It
further found that Theriot did not intentionally or recklessly omit any material
facts to mislead the DA’s office. Moreover, the district court concluded that
Theriot’s actions in conferring with the DA’s Office regarding the subpoena and



       1
         On appeal, Cunningham misconstrues the district court’s reference to “good faith” as
the district court’s sua sponte invocation of the affirmative defense of qualified immunity on
behalf of Defendants-Appellees. It is clear from our review that the district court’s reference
to “good faith” was with regard to Theriot’s conduct in seeking the cell phone records.
Accordingly, there is no merit to Cunningham’s argument that the district court impermissibly
raised sua sponte the qualified immunity defense on behalf of the Defendants-Appellees.

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                                     No. 11-30692

having the subpoena approved by the Assistant DA and a judge, convincingly
supported the reasonableness of his conduct in obtaining Cunningham’s cell
phone records. Since the evidence presented by Defendants-Appellees was more
credible on all the claims and defenses to those claims, the district court entered
judgment in their favor, dismissing all of Cunningham’s claims.2
      Cunningham appeals the district court’s final judgment following a bench
trial. We thus review the district court’s factual findings for clear error and its
conclusions of law de novo. E.g., French v. Allstate Indem. Co., 637 F.3d 571, 577
(5th Cir.), cert. denied, 132 S. Ct. 420 (2011). In addition, “as to mixed questions
of law and fact, we review the district court’s fact findings for clear error, and its
legal conclusions and application of law to fact de novo.” E.g., Payne v. United
States, 289 F.3d 377, 381 (5th Cir. 2002) (citation omitted).
      Furthermore, we must defer to the district court’s factual findings unless
“we have a definite and firm conviction that a mistake has been committed” that
warrants reversal. Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.
2000). Moreover, since Federal Rule of Civil Procedure 52(a)(6) requires that we
give due regard to the district court’s credibility evaluations, “‘[t]he burden of
showing that the findings of the district court are clearly erroneous is heavier if
the credibility of witnesses is a factor in the trial court’s decision.’” Dunbar Med.
Sys., Inc. v. Gammex Inc., 216 F.3d 441, 453 (5th Cir. 2000) (citation omitted).
Accordingly, “[w]e cannot second guess the district court’s decision to believe one
witness’ testimony over another’s or to discount a witness’ testimony. Thus, we
are reluctant to set aside findings that are based upon a trial judge’s
determination of the credibility of witnesses giving contradictory accounts.”
Canal Barge, 220 F.3d at 375 (internal citation omitted).


      2
         Prior to filing for appeal, Cunningham moved for a new trial solely on his Fourth
Amendment claim regarding the search and seizure of his personal cell phone records, which
the district court denied. However, Cunningham does not appeal its denial.

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                                 No. 11-30692

      We have carefully considered the pertinent portions of the record in light
of the parties’ briefs and applicable law. Our review confirms that the matters
Cunningham disputes were primarily questions of fact which the district judge,
as the finder of fact, was free to resolve as he did under the evidence. With
respect to the district court’s conclusions of law, we determine that there is no
reversible error in the challenged conclusions.
AFFIRMED.




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