Motley v. Fuller ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS WAYNE MOTLEY,
Plaintiff-Appellant,
v.
WILLIAM H. FULLER, II, Individually;
JAMES C. MARTIN, Individually,
No. 96-2293
Defendants-Appellees,
and
THE DANVILLE REGISTER AND BEE,
Defendant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-96-20-D)
Submitted: August 14, 1997
Decided: August 22, 1997
Before NIEMEYER, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond, Virginia, for
Appellant. John A. Gibney, Jr., SHUFORD, RUBIN & GIBNEY,
P.C., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomas Wayne Motley appeals from the district court's dismissal
of his complaint for failure to state a claim upon which relief could
be granted. Motley sued William H. Fuller, James C. Martin, and the
Danville Register & Bee, alleging inter alia that, after Motley was
acquitted of assault in the Circuit Court of Henrico County, Fuller
(the Commonwealth Attorney) and Martin (an Assistant Common-
wealth Attorney) purchased an advertisement in the Register disclos-
ing Motley's previous criminal record. Motley's criminal background
was not admitted at trial as Motley did not testify. Motley asserted
that Fuller and Martin published this damaging information in retalia-
tion against Motley's assertion of his Fifth Amendment right not to
testify and that, as a result, Motley's career as a teacher and minister
was damaged. We previously granted Motley and the Register's joint
motion to voluntarily dismiss the Register as a party on appeal. There-
fore, the only remaining issue is whether the district court erred in
finding that Motley had failed to state a 42 U.S.C.§ 1983 (1994)
claim against Fuller and Martin. We affirm.
First, a plaintiff alleging that government officials retaliated against
him in violation of his constitutional rights must show that he suffered
some adversity that chilled, impaired or denied the exercise of his
protected rights. See ACLU v. Wicomico Cnty., 999 F.2d 780, 785-86
(4th Cir. 1993). Motley asserted his Fifth Amendment rights at his
trial and did not testify. No comment was made at trial on his silence,
and he was acquitted. Therefore, Motley has failed to allege the
adverse impact necessary to a claim of retaliation.
Next, Motley attempts to recast his claim as one of a deprivation
of a liberty interest. However, an individual does not have a due pro-
cess right against the publication of the undisputed truth. See
Beckham v. Harris, 756 F.2d 1032, 1038-39 (4th Cir. 1985). Because
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Motley does not deny the truth of Fuller and Martin's advertisement,
Motley has no cause of action.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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