                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            MARCH 27, 2006
                              No. 05-16046                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 05-00819-CV-CC-1

FRANK W. BERRY, III,


                                                     Plaintiff-Appellant,

                                   versus

THOMAS L. COLEMAN,
ALBERT MURRAY, in their individual capacities,


                                                    Defendants-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (March 27, 2006)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      Frank Berry is a former employee of the Georgia Department of Juvenile

Justice, which provides treatment and education for youths referred by the Georgia

juvenile court system. While employed with the Department, Berry served as the

Director of Behavioral Health Services. In the course of his employment Berry

was instructed to prepare a memorandum regarding the readiness of Youth

Services International to take over operations of one of the Department’s

campuses, the Augusta Youth Development Campus. Berry determined that there

were serious problems at the Augusta campus and that Youth Services

International was not prepared to take over operations and he indicated that in his

memorandum. The memorandum, and Berry’s refusal to destroy it, ultimately led

to his termination.

      After he was terminated, Berry filed a complaint against Albert Murray, the

Commissioner of the Department of Juvenile Justice, and Thomas Coleman, the

Deputy Commissioner, in their individual capacities alleging violations of his First

Amendment rights under 42 U.S.C. § 1983. The defendants moved to dismiss

Berry’s complaint under Fed. R. Civ. P. 12(b)(6), arguing that he had failed to state

a claim for a violation of his First Amendment rights and that they were entitled to

qualified immunity. The district court granted the defendants’ motion to dismiss

for failure to state a claim upon which relief may be granted because Berry had not



                                          2
sufficiently alleged that his speech related to a matter of public concern. Berry

appeals to this Court.

      We review the district court’s grant of a motion to dismiss for failure to state

a claim de novo. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183,

1187 (11th Cir. 2004). We will accept the allegations in the complaint as true and

construe those allegations in the light most favorable to the plaintiff. Id. The

motion to dismiss should be granted only if the defendant demonstrates “beyond

doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Id.

      Berry alleges that he spoke on a matter of public concern by: “(1) voicing

his concerns about the Augusta campus and Youth Services International’s

readiness to takeover [sic] the daily operations of Augusta YDC in the

memorandum; (2) reporting Defendants’ order to destroy the memorandum to and

seeking advice from the Attorney General, the Department’s Deputy

Commissioner of Human Resources and its Employee Management Relations

Specialist regarding the Department’s obligations to produce his memorandum to

the reporter; (3) voicing his opinion that the destruction of the memorandum would

be illegal and unethical; and (4) voicing his unwillingness to destroy the

memorandum.” The district court concluded that each of these instances was not



                                           3
speech on a matter of public concern but instead was made by Berry primarily in

his role as an employee.

      To be protected by the First Amendment, a public employee’s speech must

relate to a matter of public concern. Speech is within the public concern if it

relates to “a matter of political, social, or other concern to the community.”

Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993). A public employee’s speech is

generally not protected if it is made “not as a citizen upon matters of public

concern, but instead as an employee upon matters only of personal interest.” Id.

The question is whether Berry spoke on behalf of the public as a citizen, or on

behalf of himself as an employee. Id. To answer that question, we must consider

the content, form and context of Berry’s speech. Id.

      Berry alleges that the memorandum he wrote evaluating the Augusta Youth

Development Campus and Youth Services International was speech on a matter of

public concern. We believe, however, that the memorandum is analogous to the

police report prepared by the plaintiff officer in Morris v. Crow, 142 F.3d 1379

(11th Cir. 1998). We held that police report was not speech on a matter of public

concern even though it contained information unfavorable to the police

department, which would be of interest to the public, because the report was

generated in the “normal course of [the plaintiff’s] duties.” Id. at 1381–82.



                                           4
Likewise, in this case Berry prepared the memorandum in response to an order

from his employer and not on his own initiative. Although the subject of the

memorandum is something in which the public might have an interest, Berry spoke

through it solely in his position as an employee and not as a citizen voicing his

views on a matter of public concern. See id; see also Morgan, 6 F.3d at 754.

      We must also determine whether Berry’s refusal to destroy the

memorandum or his statements that destroying it would be illegal or unethical

constitute speech on matters of public concern. Berry’s complaint alleges that on

one occasion he told Coleman that he would not destroy the memo. Berry also

alleges that in a meeting between himself, Coleman, Murray and Berry’s direct

supervisor he told Murray that he would not destroy the memo and that it would be

unethical and possibly illegal to do so.

      Several considerations persuade us that Berry’s statements did not relate to

the public concern. Although it is not the determinative factor, the fact that the

statements were made within the context of his employment and only to his

supervisors indicates that the speech was made by Berry as an employee and not in

his role as a citizen addressing matters of public concern. See Kurtz v. Vickrey,

855 F.2d 723, 727 (11th Cir. 1988). Similarly, the fact that Berry took no

affirmative steps to actually communicate the content of the memo to the public is



                                           5
also relevant but not fatal to Berry’s claim. Id.

      Although Berry’s statements refusing to destroy the memo and noting that to

do so would be unethical or illegal were against his personal interest as an

employee in the sense that he was defying the orders of his supervisors, we agree

with the district court that these statements did relate to Berry’s personal interest as

an employee in not doing anything unethical or illegal. Berry does allege in a

conclusory fashion in his complaint that his purpose in refusing to destroy the

document was to “raise matters of public concern,” but none of the facts alleged in

his complaint indicate that he had any purpose beyond lawfully performing his

own duties.

      On a motion to dismiss, "[c]onclusory allegations and unwarranted

deductions of fact are not admitted as true." Assoc. Builders, Inc. v. Ala. Power

Co., 505 F.2d 97, 100 (5th Cir. 1974). This is particularly true when the

conclusory allegations contradict the other facts alleged in the complaint. See id.

Therefore, Berry's statement that his purpose in refusing to destroy the memo was

to raise an issue of public concern will not be taken as true when the specific facts

of the complaint do not support that allegation. The complaint as a whole shows

that Berry was attempting to ensure that his own conduct complied with the law so

that he did not act illegally or unethically. Berry’s actions were personal, not of



                                            6
public concern, and therefore, not protected by the First Amendment.

      Finally, Berry alleges that he spoke on a matter of public concern by

“reporting Defendants’ order to destroy the memorandum to and seeking advice

from the Attorney General, the [Department’s] Deputy Commissioner of Human

Resources and the [Department’s] Employee Management Relations Specialist

regarding [its] obligations to produce his memorandum to the reporter.” After

Coleman ordered Berry to destroy the memorandum Berry was concerned that it

might be illegal to do so and sought advice from the Deputy Commissioner of

Human Resources and the Employee Management Relations Specialist. Berry’s

consultation with the attorney general was in response to an open records request

by a reporter for the Augusta Chronicle. Berry sought advice about whether the

memo had to be produced.

      These two consultations are not “whistleblowing” activity as Berry attempts

to characterize them. His consultation with the attorney general was strictly for the

purpose of determining compliance with the open records request. His

conversation with the Deputy Commissioner of Human Resources and the

Employee Management Relations Specialist was for the purpose of obtaining

advice regarding Coleman’s direction to destroy the memorandum. In both

instances, Berry alleges only that he was seeking advice; he does not allege that he



                                          7
was reporting wrongdoing. These communications were made in Berry’s role as

an employee and not with the intent to speak out on issues of public concern. See

Morris, 142 F.3d at 1382 (“the purpose of the expression must be to present such

issues as matters of public concern”).

      Berry’s consultations with other Department personnel and with the attorney

general are distinguishable from the “whistleblowing” cases that he relies on

because in those cases the employees were seeking to expose corruption or

wrongdoing by their employers. See Walker v. Schwalbe, 112 F.3d 1127, 1131

(11th Cir. 1997) (plaintiff spoke with state legislators about misuse of public

funds); Martinez v. City of Opa-Locka, Fla., 971 F.2d 708, 712 (11th Cir. 1992)

(plaintiff provided testimony about misuse of public funds to a Board of Inquiry

and State Attorney’s office); Bryson v. City of Waycross, 888 F.2d 1562, 1564

(11th Cir. 1989) (police officer filed memorandum of complaint with city manager

regarding alleged improprieties by police chief). In this case all that can be

garnered from the complaint is that Berry sought advice because he was concerned

that “it would be improper and even illegal to destroy the memorandum as

Defendant Coleman had requested [him] to do.” Seeking advice in order to ensure

that his conduct complied with the law serves a personal interest.

      The district court’s order granting the defendants’ motion to dismiss is



                                           8
AFFIRMED.




            9
