                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                        _______________________

                               No. 99-41386
                             Summary Calendar
                         _______________________

                             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opinion should not be published and is not precedent except under the limited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




                                         3
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.




                                    4
            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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