Case: 18-10353   Document: 00515005995     Page: 1   Date Filed: 06/21/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 18-10353                United States Court of Appeals
                                                                      Fifth Circuit

                                                                    FILED
                                                                June 21, 2019
NORVIS HARMON,
                                                               Lyle W. Cayce
             Plaintiff - Appellant                                  Clerk


v.

DALLAS COUNTY, TEXAS; DERICK EVANS,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:
      This case is about an employment relationship that did not turn out well.
Norvis Harmon, a former deputy constable, brought this action under 42
U.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He
alleges the defendants violated his First Amendment rights when he was
terminated for reporting the illegal acts of Evans and others to law-
enforcement authorities. Harmon additionally alleges the defendants denied
him equal protection of the law in refusing to hear his grievance.
      This is Harmon’s second lawsuit based on these facts, as he previously
filed a state-court lawsuit against Dallas County aggrieving the circumstances
of his termination. He did not enjoy a favorable judgment in that suit.
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                                      No. 18-10353
       The district court below disposed of Harmon’s claims through a series of
summary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s
claims against Dallas County as barred by res judicata, 2 and dismissed
Harmon’s claims against Evans in his individual capacity on the basis of
qualified immunity. 3 For the reasons stated herein, we AFFIRM.
                                             I.
       Harmon is a former deputy constable in Precinct 1 of the Dallas County
Constable’s Office. During his employment, Harmon became aware that Evans
and his other superiors were up to some not-so-good things, to wit: (1) requiring
deputies to work for Evans’s political allies without pay; (2) requiring deputies
to donate time and money to Evans’s re-election campaign; (3) illegally setting
quotas for writing traffic citations; and (4) requiring deputies to tow citizens’
vehicles after traffic stops, and to do so with a certain towing company with
whom Evans shared a close relationship.
       In November 2009, Harmon reported these activities to Defenbaugh &
Associates, an investigative firm hired by the Dallas County Commissioner’s
Court. Harmon alleges he made similar reports to the Dallas County Human
Resources Department, the Dallas County District Attorney, and the Federal
Bureau of Investigation.
       Things then went downhill. Word spread that certain deputies were
speaking out, prompting Evans to call a meeting in which he made couched
threats that he would retaliate against those who did. In March 2010, the
Dallas Morning News published an article describing the results of the



       1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 

(N.D. Tex.
2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 

(N.D. Tex. Aug. 8,
2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.
Supp. 3d 814 (N.D. Tex. 2017).
       2 Harmon 

.
       3 

Harmon 

.

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                                       No. 18-10353
investigation and confirmed that certain deputies had spoken out against
Evans’s illegal activities. 4 Although the article did not identify any of the
deputies by name, a separate investigative report did. 5
       Evans later initiated an administrative investigation into Harmon and,
finding at least one discrepancy in Harmon’s GPS reports, terminated him
(from employment) on June 3, 2011. Harmon tried to grieve his termination to
Evans, as his department head, and to Dallas County. These attempts were
not successful, because deputy constables hired after August 19, 2003 are
excluded from the Dallas County Civil Service Commission’s grievance system
procedure. 6 As Harmon was hired in 2008, he did not have grievance rights.
So, Harmon turned to litigation.
       Harmon first sued Dallas County in Texas state court. He asserted
claims for alleged violations of the Texas Whistleblower Act and Texas
Government Code § 617.005, 7 and an equal protection violation under the
Texas Constitution. In addition, Harmon sought injunctive relief and
declaratory relief in connection with his equal protection claim, and a




       4  Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have
Broken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS
(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-
Constable-Derick-9350.
        5 Evans was eventually convicted for engaging in organized criminal activity. The

conviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 

,
at *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).
        6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A

employee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A
classified employees are excluded from coverage afforded in employment procedures relating
to job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right
of appeal, and grievance system procedures of this Code.”).
        7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public

employees to present grievances concerning their wages, hours of employment, or conditions
of work either individually or through a representative that does not claim the right to
strike.”).
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                                        No. 18-10353
declaration that Evans’s actions were “illegal and void.” Evans was not a party
to the state-court action.
      The County moved to dismiss Harmon’s suit for lack of subject-matter
jurisdiction,     arguing     that    governmental        immunity      barred   Harmon’s
constitutional claims, as well as those brought under the Whistleblower Act
and Local Government Code. The County also argued that Harmon’s requests
for injunctive and declaratory relief embraced ultra vires acts that could only
be asserted against Evans, who was not a party to the suit. The court agreed
with the County, dismissed Harmon’s claims with prejudice, and granted
Harmon the opportunity to replead his claims for declaratory and injunctive
relief. Harmon did not, and the state court eventually entered final judgment
disposing of all claims and parties on November 7, 2013.
      Harmon brought his second suit in federal court, asserting two claims
under § 1983: (1) a retaliation claim under the First Amendment, and (2) an
equal protection claim based on the denial of his right to petition the
government. In addition to suing the County (again), Harmon also sued Evans
in both his individual and official capacities. Evans asserted the defense of
qualified immunity, so the district court ordered Harmon to file a Rule 7(a)
reply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the
pleadings based on his qualified-immunity defense, and both defendants later
filed a limited motion for summary judgment asserting that res judicata barred
Harmon’s federal suit. 8
      The district court held that res judicata barred Harmon’s suit as to the
County and Evans in his official capacity, and then granted Evans’s Rule 12(c)
motion on the basis of qualified immunity as to Harmon’s First Amendment




      8   We have simplified the motion practice before the district court.
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                                       No. 18-10353
retaliation claim. 9 Harmon, however—and to the apparent surprise of the
district court and the parties—argued that he still had lingering claims under
the First Amendment’s Petition Clause. The district court granted Evans the
opportunity to file a dispositive motion on those claims, 10 and then granted his
motion when he did. 11 Harmon timely appealed.
                                              II.
       Harmon brings three issues on appeal. He first argues that res judicata
does not apply to this case. Next, he argues the district court erred in granting
Evans qualified immunity on his First Amendment retaliation claim because
his right to engage in the speech at issue was clearly established at the time of
his termination. Finally, Harmon contends the district court was wrong to
grant Evans qualified immunity on his claims under the First Amendment’s
Petition Clause. We address each in turn.
                                             III.
       We apply Texas law to determine the res judicata effect of a Texas
judgment, and our review is de novo. Sims v. City of Madisonville, 

, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 

, 420–21 (5th
Cir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment
on the merits by a court of competent jurisdiction; (2) identity of parties or
those in privity with them; and (3) a second action based on the same claims
as were raised or could have been raised in the first action.” Amstadt v. U.S.
Brass Corp., 

, 652 (Tex. 1996). Applying these principles, we




       9  Harmon 

n.5, 825.
       10  

(“The court is, therefore, dismayed with Plaintiff’s recent assertion
regarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four
years. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding
this claim by April 28, 2017.”).
        11 Harmon 

(granting Evans’s summary-judgment motion on

the basis of qualified immunity).
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                                  No. 18-10353
conclude that res judicata bars Harmon’s claims against the County and Evans
in his official capacity, but not as to Evans in his individual capacity.
      The first element is met because, under Texas law, a dismissal based on
governmental immunity constitutes a final judgment on the merits for
purposes of res judicata. See Sims v. City of Madisonville, 

, 644
(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the
jurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.
Walker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on
immunity grounds under Texas law is a dismissal on the merits for purposes
of res judicata.”). As mentioned, the state court dismissed Harmon’s claims
with prejudice based on the County’s assertion that it was entitled to
governmental immunity and later entered a final judgment disposing of all
claims and parties. This element is met.
      The third element presents an easy solve under Texas’s “transactional”
approach. “Under this approach, a judgment in an earlier suit ‘precludes a
second action by the parties and their privies not only on matters actually
litigated, but also on causes of action or defenses which arise out of the same
subject matter and which might have been litigated in the first suit.’” Getty Oil
Co. v. Ins. Co. of N. Am., 

, 798 (Tex. 1992) (citation omitted). In
this case, both of Harmon’s suits arise from the same operative facts and
subject matter—Harmon’s allegedly unlawful termination and his inability to
file a grievance. See 

. And, as the district court observed,
nothing prevented Harmon from bringing his federal claims in state court. See

this element is also met.
      Stepping back, the second element—privity—presents a closer question,
but our decision in Warnock v. Pecos County, Texas, 

(5th Cir.




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1997) supplies the answer. 12 Warnock stands for the basic proposition that
privity does not exist between a governmental entity and an employee later
sued in his or her individual capacity. See 

The plaintiff in Warnock
alleged that two state district court judges retaliated against her for
whistleblowing. Although her initial state-court suit against the county was
unsuccessful, the plaintiff later filed suit in federal court against the county
and the judges in their official and individual capacities. 

The district
court concluded that res judicata barred suit against the judges in both
capacities, but we disagreed, holding that privity was lacking “between the
county and judges in their individual capacities.” 

We cited to Conner
v. Reinhard for support, in which the Seventh Circuit explained that “a city
official sued in his official capacity is generally in privity with the
municipality,” but that “[a] government official sued in his personal capacity,
however, presents a different case.” 

–95 (7th Cir. 1988). The
reasons for drawing this distinction are legion:
       If the plaintiff prevails against the official, the official must satisfy
       the judgment out of his own pocket, rather than having the
       government entity pay the damages. See Kentucky v. Graham, 

, 166, 

, 3105, 

(1985). In
       addition, different legal theories may be necessary to prove
       liability in a personal-capacity, as opposed to an official-capacity,
       case. Also, different defenses are available to a defendant who is
       sued in his personal capacity. Therefore, courts do not generally
       consider an official sued in his personal capacity as being in privity
       with the government.

(some citations omitted); see 18A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships
between a government and its officials justify preclusion only as to litigation



       12 There is no question this element is satisfied as to the County, as it was a party in
the prior suit.
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                                       No. 18-10353
undertaken in an official capacity.”). 13 To that end, district courts in this circuit
have applied Warnock to circumstances analogous to those at hand. See Benson
v. City of Texas City, Tex., No. 3:13-CV-23, 

, at *4 (S.D. Tex.
Mar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look
‘pragmatically’ at the privity issue by deciding whether the parties are
‘sufficiently close.’ But Warnock makes clear that defendants sued in their
individual capacities are not ‘sufficiently close’ to their public employers for the
logical reason that they both have different defenses.”). Thus, res judicata does
not bar Harmon’s individual-capacity claims against Evans.
       But we agree with the district court that res judicata bars any official-
capacity claims against Evans. An official-capacity claim, after all, is
essentially a claim against the County. See Turner v. Houma Mun. Fire &
Police Civil Serv. Bd., 

, 485 (5th Cir. 2000) (observing that when
“a defendant government official is sued in his individual and official capacity,
and the city or state is also sued,” the “official-capacity claims and the claims
against the governmental entity essentially merge”); Olibas v. Dodson, 593 F.
App’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims
against a municipal official in his official capacity are claims against the
county. . . . Therefore, we need not consider the County separate from the
Sheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x
767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars
Harmon’s claims against the County, it also bars Harmon’s official-capacity
claims against Evans. However, because res judicata does not bar Harmon’s
individual-capacity claims, we proceed, as did the district court, to the merits.


       13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists
between the agency and Defendant Wright, who is sued in his official capacity; but privity
does not exist between the agency and the other three Defendants, who are sued in their
individual capacities.”); Headley v. Bacon, 

, 1279 (8th Cir. 1987) (“[A] judgment
against a government does not bind its officials sued in their personal capacities.”).
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                                        No. 18-10353
                                               IV.
       Harmon alleges he was terminated in retaliation for engaging in
protected speech under the First Amendment. Evans, in a Rule 12(c) motion,
asserted the defense of qualified immunity. After ordering supplemental
briefing on this point, the district court held that the law regarding Harmon’s
speech was not clearly established at the time of his termination and thus
Evans was entitled to qualified immunity on Harmon’s retaliation claim. 14
       We review de novo a district court’s ruling on a Rule 12(c) motion for
judgment on the pleadings asserting qualified immunity. Johnson v. Halstead,

, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines
whether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”

“When the defendant asserts qualified immunity, the
court can order the plaintiff to submit a reply, refuting the immunity claim
‘with factual detail and particularity.’” 

reply “‘must be
tailored to the assertion of qualified immunity and fairly engage its
allegations.’” 

v. Wood, 

, 1433 (5th Cir.
1995)).




       14  This case was originally before then-Chief Judge Solis, who denied Evans’s
qualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 

,
at *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would
have understood such retaliation to be in violation of Harmon’s statutory or constitutional
rights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte
revisited this issue. Judge Lindsay vacated that prior order, concluding that the law
regarding Harmon’s speech was not clearly established at the time of his termination.
Because the denial of qualified immunity is an interlocutory order, the court was free to
revisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool
Works, Inc., 

, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary
judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision
for any reason it deems sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.”), abrogated on other grounds, Little v.
Liquid Air Corp., 

(5th Cir. 1994).

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                                       No. 18-10353
       “To evaluate whether a government official is entitled to qualified
immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed
facts and the disputed facts, accepting the plaintiffs’ version of the disputed
facts as true, constitute a violation of a constitutional right, and (2) whether
the defendant’s conduct was objectively reasonable in light of clearly
established law.” Carroll v. Ellington, 

, 169 (5th Cir. 2015)
(quoting Thompson v. Upshur Cty., Tex., 

, 457 (5th Cir. 2001)).
“We have discretion to address either prong first without necessarily
addressing the other.” 

a claim for retaliation under the First Amendment, a
plaintiff must show, inter alia, that he “spoke as a citizen on a matter of public
concern.” Garcetti v. Ceballos, 

, 418 (2006); Anderson v. Valdez,

, 590 (5th Cir. 2016). Although reporting municipal corruption
undoubtedly constitutes speech on a matter of public concern, 15 Garcetti
instructs to “first decide whether the plaintiff was speaking as a citizen
disassociated with his public duties, or whether the plaintiff was speaking in
furtherance of the duties of his or her public employment.” Howell v. Town of
Ball, 

, 522–23 (5th Cir. 2016). When public employees engage in
speech pursuant to their official duties, they “are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 

. In 2014,
the Supreme Court “emphasized that ‘[t]he critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an



       15 See Lane v. Franks, 

, 541 (2014) (“The content of Lane’s testimony—
corruption in a public program and misuse of state funds—obviously involves a matter of
significant public concern”); 

(“Exposing governmental inefficiency
and misconduct is a matter of considerable significance”); Markos v. City of Atlanta, Tex., 

, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about
alleged corruption in the police department, a subject undoubtedly of public concern.”).
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                                  No. 18-10353
employee’s duties, not whether it merely concerns those duties.” 

573 U.S. at 240).
      We applied these principles in Howell v. Town of Ball, which we find
controlling. In Howell, we held that a Louisiana police officer’s confidential
involvement with an FBI-led investigation into the illegal acts of the mayor
and other local officials was not “in furtherance of his ordinary job 

. Although we agreed the police officer’s First Amendment rights
were violated when he was terminated in retaliation for cooperating with the
FBI’s investigation, we ultimately concluded the defendants were entitled to
qualified immunity because, at the time of the officer’s termination, “it was not
clearly established whether his involvement in the FBI investigation was
protected under the First Amendment.” 

We explained that:
      At the time that Howell was fired, Garcetti’s distinction between
      speech made pursuant to official duties and speech made as a
      private citizen was relatively new, and this court had not
      considered it in the context of an action involving a police officer’s
      statements to an outside law enforcement agency, or in the context
      of a law enforcement officer’s assistance with an outside agency’s
      investigation. Garcetti, by its own admission, did not “articulate a
      comprehensive framework for defining the scope of an employee’s
      duties in cases where there is room for serious debate.” 

, 

. Furthermore, the Supreme Court did
      not emphasize that only speech made in furtherance of an
      employee’s “ordinary” job duties is not protected until nearly three
      years after Howell was discharged.
      The lack of the application of Garcetti to similar facts at the time
      of Howell’s discharge, coupled with the Supreme Court’s only
      recent clarification of Garcetti’s citizen/employee distinction
      in Lane, compels us to hold that the Board defendants did not
      violate a “clearly established” constitutional right when voting to
      fire Howell. We thus affirm the district court’s grant of qualified
      immunity to the Board defendants.

internal citations omitted).


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                                        No. 18-10353
       The parties here essentially agree that Harmon alleges a violation of his
First Amendment rights; indeed, Evans concedes—ultimately to his
advantage, of course—that “the facts in Howell are identical to the speech at
issue in this case.” And Harmon alleges that it was not part of his ordinary
duties as a deputy constable to report the illegal acts of his supervisors to
investigators, the FBI, and other authorities. Even so, Harmon’s termination
occurred just one month prior to the officer’s termination in Howell, where we
held that it was not clearly established whether a law enforcement officer’s
involvement in an investigation with outside law-enforcement enjoyed
protection under the First Amendment. Accordingly, the same result in Howell
must obtain here. 16 We thus agree with the district court that Evans is entitled
to qualified immunity on Harmon’s First Amendment retaliation claim.
                                               V.
       Finally, we address Harmon’s claims under the First Amendment’s
Petition Clause, which “protects ‘the right of the people . . . to petition the
Government for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,

, 382 (2011) (quoting U.S. CONST. AMEND I.).
       As best we can tell, Harmon attempts to bring two “petition” claims. 17
The first appears to be a straight-up petition claim based on Evans’s refusal to


       16  Harmon directs us to Cutler v. Stephen F. Austin State University in support of his
argument that the law regarding his speech was clearly protected at the time of his
termination. 

, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,
given the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-
established at the time of Harmon’s termination requires us to consider the specific context
of the case. See Anderson v. Valdez, 

, 476 (5th Cir. 2019) (“[W]e are ‘not to define
clearly established law at a high level of generality,’ but rather are to pay close attention to
‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement
officer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so
we follow Howell.
        17 Harmon gears much of his Petition Clause arguments towards Dallas County and

its decision to exclude deputy constables hired before August 19, 2003 from its grievance
system. Because we hold that res judicata bars Harmon’s claims against the County and
Evans in his official capacity, we do not address these arguments.
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                                     No. 18-10353
hear his grievance; that is, Harmon alleges that Evans’s refusal to hear his
grievance violated his “fundamental” right to petition the government.
Harmon’s second claim appears to be an equal-protection variant and is
similarly based upon Evans’s refusal to hear his grievance. We address each in
turn. 18
       Harmon’s first theory fails for the very basic reason that his attempted
grievance involved a matter of private concern. Indeed, “[i]f a public employee
petitions as an employee on a matter of purely private concern, the
employee’s First Amendment interest must give way, as it does in speech
cases.” 

To be clear, Harmon’s speech—his reporting illegal conduct,
which is a matter of public concern—is not at issue here; rather, the issue
concerns Harmon’s grievance. By its very nature, however, an employee’s
grievance from termination will not ordinarily constitute a matter of public
concern. See 

filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to the public or to
advance a political or social point of view beyond the employment context.”);
Gibson v. Kilpatrick, 

, 487 (5th Cir. 2016) (“Internal personnel
disputes and management decisions are rarely a matter of public concern.”).
We think the district court said it well:
       There is no evidence that Harmon was using the petition appealing
       his employment termination as a platform to publicly air his
       concerns about Evans’s conduct. He, instead, was merely using the
       petition to appeal the termination of his employment as any
       employee, private or public, would do. In other words, the point of
       Harmon’s appeal was not to present concerns about Evans’s
       conduct but to seek reinstatement of his employment as deputy
       constable with the County.



       18The district court held that Harmon’s Petition Clause claims were not properly
before the court but nevertheless addressed them on the merits. We limit our analysis here
to the merits.
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                                  No. 18-10353
Harmon 

. In addition, that Harmon’s remaining claim
here is against Evans in his individual capacity—and thus seeks damages from
him personally—underscores our conviction that Harmon’s attempt to grieve
his termination with Evans constituted but a matter of private concern. See

(“The form of Gibson’s suit—personal capacity—
provides significant support for the conclusion that it was not a matter of public
concern.”). Finding no violation of Harmon’s First Amendment right to
petition, we agree with the district court that Evans was entitled to qualified
immunity on this claim.
      To succeed on his equal protection claim, Harmon must show that “two
or more classifications of similarly situated persons were treated differently.”
Gallegos-Hernandez v. United States, 

, 195 (5th Cir. 2012).
Harmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or
a regular practice to not hear grievances of employees, including grievances by
deputy constables.” Thus, Harmon does not allege that Evans treated similarly
situated deputy constables differently; to the contrary, Harmon alleges that
Evans’s regular practice was to refuse grievances all together, and his equal
protection claim fails for that reason. The district court did not err in granting
Evans qualified immunity on this claim.
      AFFIRMED.




                                       14