                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1619


SAMUEL BIERS,

                    Plaintiff - Appellant,

             v.

TRACEY E. CLINE,

                    Defendant - Appellee,

             and

PAUL MARTIN; DURHAM COUNTY SHERIFF’S OFFICE; MICHAEL
ANDREWS; WORTH HILL; HARTFORD FINANCIAL SERVICES GROUP,
INC.; DURHAM COUNTY; STATE OF NORTH CAROLINA,

                    Defendants.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:12-cv-00375-CCE-LPA)


Submitted: February 1, 2018                                   Decided: February 9, 2018


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Robert Ekstrand, Stefanie Smith, EKSTRAND & EKSTRAND LLP, Durham, North
Carolina, for Appellant. Joshua H. Stein, Attorney General, Grady L. Balentine, Jr.,
Special Deputy Attorney General, Kathryn H. Shields, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Samuel Biers appeals the district court’s entry of judgment as a matter of law in

favor of Tracey Cline during a jury trial on Biers’ First Amendment retaliation claim.

Biers claimed that in 2011, Cline, who was then the District Attorney of Durham County,

North Carolina, conspired to remove Biers from his position as a magistrate and

publically humiliate him in retaliation for Biers’ exposure of Cline’s misconduct. The

district court granted Cline’s Fed. R. Civ. P. 50(a) motion for judgment as a matter of law

during Cline’s presentation of evidence, concluding that no reasonable juror could find

that Cline took any retaliatory action against Biers. Biers contends this decision was

erroneous. He also argues that the district court abused its discretion by excluding

extrinsic evidence of Cline’s retaliatory intent, as well as handwritten notes that Biers

claims demonstrate the existence of a conspiracy to remove him from his job and

publically humiliate him. We affirm.

       Biers sought to introduce voluminous extrinsic evidence pursuant to Fed. R. Evid.

404(b) that he claims evinces Cline’s “contemporaneous and nearly identical retaliatory

conduct” against people who, like Biers, exposed or attempted to expose Cline’s

misconduct. The district court ruled that the evidence was not admissible under Rule

404(b), and that Biers was not entitled to question Cline about these incidents for

purposes of impeachment under Fed. R. Evid. 608(b)(1). We review the district court’s

evidentiary rulings for abuse of discretion. United States v. Faulls, 821 F.3d 502, 508

(4th Cir. 2016).



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       Federal Rule of Evidence 404(b) prohibits the admission of [e]vidence of a
       crime, wrong, or other act . . . to prove a person’s character in order to show
       that on a particular occasion the person acted in accordance with the
       character. Prior act evidence is admissible, however, to prove motive,
       opportunity, intent, preparation, plan, knowledge, identity, absence of
       mistake, or lack of accident.

       We utilize a four-part test to assess admissibility of prior-act evidence: (1)
       the prior-act evidence must be relevant to an issue other than character,
       such as intent; (2) it must be necessary to prove an element of the [claim];
       (3) it must be reliable; and (4) its probative value must not be substantially
       outweighed by its prejudicial nature.

Smith v. Baltimore City Police Dep’t, 840 F.3d 193, 201 (4th Cir. 2016) (citation and

internal quotation marks omitted).

       The district court determined that the extrinsic evidence was not sufficiently

relevant to retaliatory intent, and that its probative value would be substantially

outweighed by the risk of unfair prejudice and confusion. The court did not abuse its

discretion by so finding. First, Biers’ theory of the case was that Cline was part of a

clandestine conspiracy to engineer the filing of false affidavits seeking Biers’ removal as

magistrate, and to leak this false information to the media. The extrinsic pleadings and

filings Biers sought to introduce, by contrast, were publically submitted by Cline on the

record, under her own name. Moreover, there was very little evidence at trial that Cline

took any action with respect to Biers. As such, to the extent the extrinsic evidence is

probative of retaliation, it is probative not as to whether Cline took certain actions with

the intent to retaliate, which is permitted under Rule 404(b)(2), but rather as to whether

Cline has a propensity to retaliate, which is proscribed under Rule 404(b)(1).




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       The district court also did not abuse its discretion in concluding that the risk of

unfair prejudice and confusion substantially outweighed any probative value, especially

given that any permissible probative value was small. The exhibits Biers sought to

introduce totaled more than 600 pages, and the district court was properly concerned

about the risk of confusing the jury about the relevant issues in the case, as well as the

trial being subsumed by a mini-trial over the nature and propriety of Cline’s past acts.

For the same reason, the court did not abuse its discretion by ruling that Biers was not

entitled to cross examine Cline about the contents of the exhibits for impeachment

purposes. See Fed. R. Evid. 608(b)(1) (“the [district] court may, on cross examination,

allow [specific instances of a witness’s conduct to] to be inquired into if they are

probative of the character for truthfulness or untruthfulness of . . . the witness.”)

(emphasis added).

       Biers also sought to introduce handwritten notes of the chief district judge, which

Biers alleged were evidence of the conspiracy to use “straw men” to file false affidavits

to remove him from office. Although the judge who wrote the notes testified during

Cline’s case, Biers did not question the judge about the notes, instead seeking to

introduce them through the testimony of the judge’s judicial assistant. The assistant

testified that she was familiar with the judge’s handwriting, and that the notes appeared to

be written by the judge. See Fed. R. Evid. 901(b)(2). However, the assistant had never

seen the notes before and had no knowledge as to the circumstances of their creation.

Moreover, it is not clear from the face of the notes what they are, and the assistant would

not have been able to aid the jury in considering and assigning probative value to the

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notes. Accordingly, the district court did not abuse its discretion by refusing to admit

them through the assistant’s testimony.

       Biers’ final argument on appeal is that the district court erroneously granted

Cline’s motion for judgment as a matter of law instead of letting the case go to the jury.

Under Fed. R. Civ. P. 50(a), “[i]f, upon the conclusion of a party’s case, a reasonable jury

would not have a legally sufficient evidentiary basis to find for the party on that issue, a

court may grant a motion from the opposing party for judgment as a matter of law.”

Huskey v. Ethicon, Inc., 848 F.3d 151, 156 (4th Cir.) (internal quotation marks omitted),

cert. denied, 138 S. Ct. 107 (2017). “A court may grant judgment as a matter of law only

if, viewing the evidence in a light most favorable to the non-moving party and drawing

every legitimate inference in that party’s favor, the only conclusion a reasonable jury

could have reached is one in favor of the moving party.” Id. (alteration and internal

quotation marks omitted). We review the district court’s grant of a motion for judgment

as a matter of law de novo. Id.

       The only claim that went to trial was that Cline retaliated against Biers in violation

of the First Amendment.

       [A] First Amendment retaliation claim under § 1983 consists of three
       elements: (1) the plaintiff engaged in constitutionally protected First
       Amendment activity, (2) the defendant took an action that adversely
       affected that protected activity, and (3) there was a causal relationship
       between the plaintiff’s protected activity and the defendant’s conduct.

Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 537 (4th Cir. 2017), cert. denied, __ S. Ct.

___, No. 17-307, 2018 WL 410913 (U.S. Jan. 16, 2018). The district court assumed that

Biers had engaged in protected First Amendment activity, but found that the evidence

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was insufficient to support any reasonable inferences that Cline took any action against

Biers. After reviewing the evidence at trial in the light most favorable to Biers, we agree.

Cline did not file either of the affidavits that led to the removal proceedings, and while

Biers alleged that Cline was part of a conspiracy that orchestrated the filing of the

affidavits, those allegations were not supported by any testimony at trial. There was also

no testimony from which the jury could reasonably infer that Cline leaked false

information about Biers to the media.            The judge presiding over the removal

proceedings—whom Biers did not allege was part of the conspiracy—assigned Cline’s

office to prosecute the removal proceedings. Although Biers contends that Cline allowed

the removal proceedings to go forward even though she knew the affidavits were false,

the testimony at trial established that she assigned the case to one of her assistants, and

thereafter did not control or participate in the matter. Moreover, there was no evidence

that she influenced the resolution of the removal proceedings. Finally, Cline’s statement

to Biers after the hearing may have been relevant as to whether Cline retaliated against

Biers, but given the lack of other evidence, the statement does not give rise to a

reasonable inference that she did retaliate. Because the district court properly determined

that no reasonable juror could find for Biers based on the evidence at trial, its grant of

Cline’s motion for judgment as a matter of law was not erroneous.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                               AFFIRMED

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