Naylor v. United States ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50926
Summary Calendar
ROBERT F NAYLOR, III
Plaintiff - Appellant
v.
RONALD COLVIN; ET AL
Defendants
RONALD COLVIN, Individually and in his Official Capacity
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CV-435-H
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June 14, 2000
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Robert F. Naylor, III, (“Naylor”), acting pro se, appeals
the district court’s summary-judgment dismissal of his suit
against Ronald Colvin (“Colvin”), an official in the United
States Customs Service (“Customs Service”). Naylor argues that
the district court erred in dismissing his 42 U.S.C. § 1985(3)
claim without reopening discovery and in dismissing his claim
under Bivens v. Six Unknown Named Agents of Fed. Bureau of
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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.
R. 47.5.4.
No. 99-50926
-2-
Narcotics, 403 U.S. 388 (1971), on the basis of qualified
immunity.
Naylor asserts that the statement in his response to the
defendants’ motion for dismissal or for summary judgment
regarding his need for discovery was a request for a continuance
to allow discovery. However, Naylor’s statement was made moot by
his subsequent agreement to the abatement of discovery until
further order of the court. Thus, the district court did not err
in failing to reopen discovery prior to granting summary judgment
on Naylor’s § 1985(3) claim.
Naylor contends that his Bivens claim should be analyzed as
though he had been a government employee. By his own admission,
however, Naylor was neither a government employee nor an
independent government contractor; rather, he was the employee of
an independent government contractor. Naylor’s relationship with
the Customs Service was not analogous to an employment
relationship, as Naylor’s actual employer was interposed between
the parties, and his allegedly restricted speech was not a mere
workplace grievance, as it did not relate to the employment
relationship from which he was terminated. See Blackburn v. City
of Marshall, 42 F.3d 925, 932-34 (5th Cir. 1995). This case is
therefore not subject to review under the framework for analyzing
a free speech-retaliation claim by a government employee or
contractor. See id.; see also Board of County Comm’rs, Wabaunsee
County, Kan. v. Umbehr, 518 U.S. 668, 675, 686 (1996).
Even outside the employment or contractual relationship
context, the Government may not deny a valuable government
No. 99-50926
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benefit to a person on a basis that infringes his
constitutionally protected interest in freedom of speech. See
Blackburn, 42 F.3d at 931, 934. However, Naylor has failed to
allege that he was denied any government benefit in retaliation
for his alleged statements regarding problems with the
CargoSearch unit. Accordingly, Naylor did not allege a violation
of his constitutional rights, and Colvin was entitled to
qualified immunity. See Petta v. Rivera, 143 F.3d 895, 899-900
(5th Cir. 1998). The district court did not err in granting
Colvin summary judgment on the Bivens claim.
AFFIRMED.