                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-1463



CHARLES E. BEVIS,

                                              Plaintiff - Appellee,

          versus


WILLIE BETHUNE; LEROY FRED; MARK BINKLEY;
JAMES H. SCULLY, JR., Doctor, in their
individual capacities,

                                            Defendants - Appellants,

          and


SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH,

                                                         Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:03-cv-00135-MJP)


Submitted:   March 27, 2007                   Decided:   May 2, 2007


Before NIEMEYER and WILLIAMS, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Reversed by unpublished per curiam opinion.
Kathryn Thomas, GIGNILLIAT, SAVITZ & BETTIS, L.L.P., Columbia,
South Carolina, for Appellants. J. Lewis Cromer, CROMER & MABRY,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Appellants Willie Bethune, Mark Binkley, and James Scully

appeal the district court’s denial of their motion for summary

judgment on the ground of qualified immunity with respect to

Charles Bevis’s claim under 42 U.S.C.A. § 1983 (West 2003 & Supp.

2006).    They argue that Bevis cannot establish a violation of a

constitutional right because he has not shown that he engaged in

constitutionally protected speech, nor has he demonstrated that he

suffered any resulting harm.         Because Bevis has failed, as a

threshold matter, to show that he engaged in constitutionally

protected   speech,   we   reverse   the   district   court’s   denial   of

Appellants’ claim of qualified immunity.



                                     I.

     Bevis became the administrative director of the Pee Dee Mental

Health Center (the “Center”), a branch of the South Carolina

Department of Mental Health (the “Department”), in July 1984.            He

was promoted to executive director of the Center in 1985 and served

in that position for nearly seventeen years.      (J.A. at 279.)    After

an investigation revealed serious procurement violations at the

Center,   Bevis   announced   his    voluntary   retirement,    effective

November 2001.

     On January 13, 2003, Bevis filed a complaint in the United

States District Court for the District of South Carolina alleging


                                     3
that his retirement was in effect a constructive discharge.                    He

claimed, inter alia, that Appellants retaliated against him for

exercising his First Amendment rights, in violation of 42 U.S.C.A.

§   1983.    Bevis   based   his   §    1983   claim    on   his   “support”   of

complaints made by an employee, Susan Nickles, during a six-month

period in which he served as her supervisor.

       Specifically, Bevis alleged that he supported Nickles after

she sent a letter to the South Carolina Mental Health Commission

(the    “Commission”)    raising       concerns    about     the   Department’s

treatment of patients, staff, and Nickles herself.                 In response,

the Commission arranged a small meeting on June 13, 2000. Although

Bevis had not been invited to attend, he requested to be present

because he was Nickles’s supervisor and wanted to support her.

Mark   Binkley,   the   Department’s        General    Counsel,    attended    the

meeting.    James Scully, who served as Interim Director of the

Department for much of 2000, and Willie Bethune, who became Bevis’s

supervisor in August of 2001, however, did not attend the meeting.

       Bevis claimed to have expressed additional support for Nickles

during a meeting with Binkley and Scully to discuss proposed

disciplinary action against Nickles for improper communications she

had made, specifically comments criticizing the incoming Director

of the Department, George Gintoli.             Scully and Binkley wanted to

take more serious action against Nickles than the written warnings

she had already received for other remarks. Bevis opined that “one


                                        4
should err on the side of caution on those kinds of things rather

than take serious steps that you can’t step back from easily.”

(J.A. at 384.)1     As a result, Nickles simply received a “Memo of

Clarification” of a previous Written Warning that detailed a

permissible manner of making complaints and explained that certain

other means of expressing her dissatisfaction were improper and

disruptive.      On November 17, 2000, however, Scully initiated

further disciplinary action against Nickles in the form of a

“Notice of Recommendation for [a Five-Day] Suspension.”       Bevis

spoke on Nickles’s behalf at a grievance hearing related to the

Notice.

       In addition to the § 1983 claim, Bevis’s complaint alleged

“race and religious discrimination and retaliation” in violation of

Title VII against the Department and Leroy Fred, a member of the

Center’s Board; Bevis raised civil conspiracy as “an alternative

third cause of action against the individual defendants.” (J.A. at

13.)       The Department, Fred, and Appellants (collectively “the

defendants”) asserted a number of defenses, including a claim of

qualified immunity on behalf of Appellants, and moved for summary

judgment on all claims.




       1
      Citations to the “J.A.” refer to the joint appendix filed
with this appeal.

                                  5
     A magistrate judge recommended that the defendants’ motion for

summary judgment be granted.2    On March 24, 2006, the district

court held a hearing at which Bevis withdrew his objection to the

magistrate judge’s recommendation of summary judgment on his Title

VII claim.   The district court summarily denied the defendants’

motion for summary judgment with regard to the remaining claims,

stating that “there are material issues of fact that prevent this

Court from disposing of this case by way of summary judgment.”

(J.A. at 699.)    Appellants requested that the district court

reconsider the qualified immunity issue, but the district court

denied their oral motion.

     Appellants timely appealed the denial of their motion for

summary judgment on the ground of qualified immunity.      We have

jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).       See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that “a

district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ withing the meaning of 28 U.S.C. § 1291, notwithstanding

the absence of a final judgment”).




     2
      Pursuant to D.S.C. R. 73.02(B)(2)(g), the Clerk of the Court
refers to a magistrate judge “[a]ll pretrial proceedings involving
litigation arising out of employment discrimination cases invoking
federal statutes which proscribe unfair discrimination in
employment . . . .”

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                                           II.

      We   review    de    novo    the     district      court’s    denial      of   the

individual   defendants’          motion    for    summary     judgment      based    on

qualified immunity.          See Johnson v. Caudill, 475 F.3d 645, 650

(4th Cir. 2007).      To determine whether Appellants are entitled to

qualified immunity, we must make a two-step inquiry “in proper

sequence.”    Saucier v. Katz, 533 U.S. 194, 200 (2001).                     First, we

must determine whether, taken in the light most favorable to the

party   asserting    the     injury,     the     facts    alleged    show    that    the

defendants’ conduct violated a constitutional right.                     Id. at 201.

If the facts, so viewed, do not establish a violation of a

constitutional right, the plaintiff cannot prevail, and “there is

no necessity for further inquiries concerning qualified immunity.”

Id.   If, however, a favorable view of the facts does establish such

a violation, the next step is to determine whether the right

violated   was     clearly    established         at   the   time   of   the   alleged

offense.     Id.     If the right was not clearly established, the

defendants are entitled to qualified immunity.                  Id.

      Accordingly, we turn first to the question of whether the

facts, viewed in the light most favorable to Bevis, establish a

violation of a constitutional right. “The Supreme Court’s decision

in Pickering v. Board. of Educ., 391 U.S. 563[] (1968), and cases

following, established that a state government employer violates

the   Constitution     if    it    deprives       an     employee   of   a     valuable


                                            7
employment benefit in retaliation for the employee’s exercise of

his constitutionally protected speech.”                 DiMeglio v. Haines, 45

F.3d 790, 805 (4th Cir. 1995).            Thus, to establish a violation of

his First Amendment rights, an employee must meet a three-pronged

test, showing that (1) his speech was constitutionally protected,

(2) the alleged retaliatory action deprived him of some valuable

benefit, and (3) the protected speech was the but-for cause of the

retaliatory action.        Holland v. Rimmer, 25 F.3d 1251, 1254 (4th

Cir. 1994).

      To     determine    whether     a       public    employee’s     speech    is

constitutionally protected, we must determine, as a threshold

matter, whether the expressions in question were made by the

speaker “as a citizen upon matters of public concern.” Garcetti v.

Ceballos, 126 S. Ct. 1951, 1956 (2006) (internal quotation marks

omitted) (holding that public employees speaking pursuant to their

official duties are not speaking as citizens for First Amendment

purposes).       When a public employee speaks as a citizen upon a

matter     of   public   concern,    we   must    apply    the   balancing      test

established by the Supreme Court in Pickering v. Bd. of Education,

391   U.S.      563   (1968),   to   determine         whether   the   speech     is

constitutionally protected.           If, however, the employee is not

speaking as a citizen for First Amendment purposes or comments

“upon matters only of personal interest,” DiMeglio, 45 F.3d at 805

(internal quotation marks omitted), the Constitution does not


                                          8
insulate his remarks from employer discipline, and our inquiry

ends.    “Because almost anything that occurs within a public agency

could be of concern to the public,” the focus of our inquiry is on

“whether the speech at issue . . . was made primarily in the

plaintiff’s role as citizen or primarily in his role as employee.”

Id.    (internal   quotation   marks    omitted);     see    also   Urofsky   v.

Gilmore, 216 F.3d 401, 407 (4th Cir. 2000) (en banc) (stating that

“critical to a determination of whether employee speech is entitled

to    First   Amendment   protection   is   whether    the    speech   is   made

primarily in the employee’s role as citizen or primarily in his

role    as    employee”   (internal    quotation    marks     and   alteration

omitted)).

       Bevis identified three instances of speech or association that

form the basis for his claim: (1) his comments at the June 2000

meeting, coupled with his nodding and generally showing agreement

with Nickles; (2) his statements at the meeting in which he,

Scully, Binkley, and Rosin discussed reprimanding Nickles; and (3)

his statements at Nickles’s grievance hearing.               He also stressed

his belief that there was a general awareness that he “supported

Susie Nickles and stood by what she was trying to accomplish.”

(J.A. at 388.)

       With regard to the three specific instances described above,

Bevis has not established that he was speaking as a citizen on a

matter of public concern.      He made his comments at the meeting to


                                       9
discuss the appropriate means of reprimanding Nickles and at

Nickles’s grievance hearing pursuant to his duties as Nickles’s

supervisor.       Moreover, his remarks did not implicate matters of

public     concern,    as    they      pertained    only    to    internal      employee

discipline. See Ceballos, 126 S. Ct. at 1960 (emphasizing that the

controlling factor in Ceballos’s case was “that his expressions

were made pursuant to his duties” as an employee); Holland, 25 F.3d

at 1256 (explaining that “[b]oth the content, internal employee

discipline,      and   the       context,   in-house       communications       between

employees speaking as employees,” of a public employee’s speech

showed that the speech was not on a matter of public concern

(emphasis in original)).

     Because Bevis was not invited to the June 2000 meeting, he can

show that his expression on that occasion was not made pursuant to

his official duties as Nickles’s supervisor.                        That he was not

required to engage in the particular expression at issue, however,

is   not      dispositive,       as    Bevis’s     expression       of    support     was

nevertheless      made      in   his    capacity    as    an    employee.        Nickles

explained that “Bevis was [her] supervisor and he requested to be

present and so that was why he was there.”                     (J.A. at 268.)       Bevis

used his role as Nickles’s supervisor to access the meeting, and

those    in    attendance        understood      his     presence    to    be   in    his

supervisory capacity.             Although Bevis attempts to claim a “dual

role” for himself, asserting that he “wanted to be present both as


                                            10
her supervisor and as someone who wanted to hear all of the issues

that she was going to present,” (J.A. at 390-91), he effectively

concedes that he attended the meeting as Nickles’s supervisor and

expressed his support for her in that capacity.              Bevis explained

that although his supervisory responsibilities did not require him

to attend the meeting, he considered it appropriate that he do so,

because he considered it “a major meeting,” and Nickles had asked

him to be present.         (J.A. at 390.)

      Bevis’s vague claim of a violation of his right to freedom of

association based on his general “support” of Nickles must fail as

well.     The First Amendment protects a person’s right to associate

with another person for the purpose of engaging in protected speech

and assembly, exercising one’s religion, and petitioning for the

redress of grievances, Kidwell v. Transp. Comm. Int’l. Union, 946

F.2d 283, 301 (4th Cir. 1991), and “[l]ogically, the limitations on

a public employee’s right to associate are closely analogous to the

limitations on his right to speak,” Edwards v. City of Goldsboro,

178   F.3d    231,   249   (4th   Cir.   1999)   (internal   quotation   marks

omitted).      To establish a First Amendment violation based on his

relationship with Nickles, Bevis cannot allege generally that he

supported all that Nickles did and said; he must associate himself

with protected expression made by Nickles.             Bevis, however, has

offered no means of connecting the alleged retaliation to protected

speech.      He has only noted that (1) Binkley, like himself, nodded


                                         11
and expressed agreement with certain points made by Nickles at the

June 2000 meeting, and (2) Scully felt that some of Nickles’s

communications evidenced a need for closer supervision and more

severe   disciplinary      action    than     Bevis   believed    were    required

(although he too agreed that the manner in which Nickles made her

complaints was improper).           Accordingly, Bevis cannot establish a

violation of a constitutional right.



                                       III.

      In sum, we conclude that, because Bevis has not shown that he

engaged in or was associated with expression that was made as a

citizen on a matter of public concern, he has not shown that he

engaged in constitutionally protected speech.                    Accordingly, he

cannot   establish     a   violation    of     a   constitutional     right,     and

Appellants are entitled to qualified immunity against his § 1983

claim.   We therefore reverse the judgment of the district court.

We   dispense   with   oral   argument        because   the   facts      and   legal

contentions are adequately presented in the materials before the

court and oral argument would not aid the decisional process.



                                                                          REVERSED




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