Bernice Cole Zickl v. Morris Carson, T.A

932 F.2d 964 Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Bernice Cole ZICKL, Plaintiff-Appellant, v. Morris CARSON, T.A. Varner, Defendants-Appellees. Bernice Cole ZICKL, Plaintiff-Appellant, v. Morris CARSON, T.A. Varner, Defendants-Appellees.

Nos. 89-3323, 90-3176.

United States Court of Appeals, Fourth Circuit.

Submitted April 11, 1991. Decided May 6, 1991.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-89-30-R)

Bernice Cole Zickl, appellant pro se.

Roscoe Connell Roberts, Office of the Attorney General of Virginia, Richmond, Va., for appellees.

E.D.Va.

AFFIRMED.

Before RUSSELL, K.K. HALL and NIEMEYER, Circuit Judges.

PER CURIAM:

1

Bernice Cole Zickl appeals the district court's order directing a verdict in her 42 U.S.C. Sec. 1983 action alleging infringement of her first amendment right to free speech, due process and equal protection violations, and a pendent claim of intentional infliction of emotional distress (No. 89-3323). Although we agree that the district court erred in applying the public concern test of Connick v. Myers, 461 U.S. 138 (1983), to her charges of cheating in a community college classroom setting, we note that the court also assumed arguendo that her speech was of public concern but found that she failed to introduce sufficient evidence that the defendant "chilled" her speech through retaliation and harassment. On this basis, we affirm the order directing a verdict as to her first amendment claim. As to the court's order directing a verdict on the remaining three counts of her complaint, our review of the record and the district court's opinion discloses that her appeal is without merit. We accordingly affirm on the reasoning of the district court. Zickl v. Carson, CA-89-30-R (E.D.Va. Aug. 17, 1989).

2

Zickl also appeals the district court's order denying her Fed.R.Civ.P. 60(b) motion to overturn the judgment and grant a new trial (No. 90-3176). Our review of the record and the district court's opinion discloses no abuse of discretion in the denial of relief, and we accordingly affirm on the reasoning of the district court. Zickl v. Carson, CA-89-30-R (E.D.Va. Oct. 26, 1990). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

3

AFFIRMED.