Filed: Jul. 11, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-20700 _ PAT BULLARD, Plaintiff-Appellee, versus THE CITY OF HOUSTON, ET AL., Defendants, JOHN MILES; BALDWIN CHIN; KELLY COLQUETTE, Defendants-Appellants. _ Appeals from the United States District Court for the Southern District of Texas (CA-H-95-762) _ July 2, 1996 Before JOLLY, DUHÉ, and STEWART, Circuit Judges. E. GRADY JOLLY, Circuit Judge:* This appeal comes to us from the denial of a motion to dismiss pursuant to Federal
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-20700 _ PAT BULLARD, Plaintiff-Appellee, versus THE CITY OF HOUSTON, ET AL., Defendants, JOHN MILES; BALDWIN CHIN; KELLY COLQUETTE, Defendants-Appellants. _ Appeals from the United States District Court for the Southern District of Texas (CA-H-95-762) _ July 2, 1996 Before JOLLY, DUHÉ, and STEWART, Circuit Judges. E. GRADY JOLLY, Circuit Judge:* This appeal comes to us from the denial of a motion to dismiss pursuant to Federal R..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20700
_____________________
PAT BULLARD,
Plaintiff-Appellee,
versus
THE CITY OF HOUSTON, ET AL.,
Defendants,
JOHN MILES; BALDWIN CHIN; KELLY COLQUETTE,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas
(CA-H-95-762)
_________________________________________________________________
July 2, 1996
Before JOLLY, DUHÉ, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
This appeal comes to us from the denial of a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), and raises
questions of qualified and official immunity. The only record
before us is the complaint, which adequately sets out the facts of
this case. Very briefly stated, Pat Bullard, who interviewed and
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
videotaped DWI suspects for the Houston Police Department (the
"HPD"), alleged in his complaint that the assistant district
attorneys--the only appellants in this appeal--did not approve of
his truthful testimony at DWI trials, that they attempted to
pressure him to testify falsely, that when he refused they
complained to his superiors, that he reported the DAs to the state
bar, and that he was wrongfully terminated from his civilian job
with the HPD for refusing to testify falsely at two DWI trials. He
brought various state and federal charges against numerous
defendants. These three DAs moved for dismissal of the complaint,
claiming qualified or official immunity. The district court denied
their motions, and this appeal followed. We hold that Bullard has
stated a claim for a violation of his First Amendment rights, but
has failed to state a claim for a violation of his substantive due
process rights under the Fourteenth Amendment. Furthermore, and
particularly in the light that the case comes to us on the barest
record as a denial of a 12(b)(6) motion, we affirm the denial of
official immunity under state law with respect to the state claims.
We therefore affirm in part and reverse in part.
I
Bullard brought this action under 42 U.S.C. § 1983, alleging
(1) that he was wrongfully terminated in violation of the First
Amendment in retaliation for exercising his right to speak out on
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a matter of public concern; (2) that the defendants' actions, along
with the actions of other defendants not parties to this appeal,
deprived him of both a liberty and a property interest without due
process of law in violation of the Fourteenth Amendment; and (3)
that the defendants' actions violated the Family Medical Leave
Act.1 He also asserted pendant state law claims for wrongful
termination, defamation, and intentional infliction of emotional
distress. Although Bullard sued the individually named defendants
in both their official and personal capacities, the district court
dismissed the official capacity suits against Miles, Chin, and
Colquette as duplicative of the claims against Harris County.
Miles, Chin, and Colquette moved to dismiss the claims against
them, pursuant to Rule 12(b)(6). The district court denied the
motion in part and granted the motion in part, as follows: it
allowed all federal claims, as well as the wrongful termination
claim against all three defendants, to proceed; it granted all
three defendants' motions to dismiss the intentional infliction of
emotional distress claims; and it denied Colquette's, but granted
Miles' and Chin's motions to dismiss the defamation claim.
This appeal followed. The primary issues before us today are:
(1) whether the district court improperly denied the defendants'
1
The Family Medical Leave Act claim is not at issue in this
appeal.
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motion to dismiss Bullard's petition for failure to allege facts
sufficient to overcome their qualified immunity defenses; and (2)
whether the district court erred by refusing to dismiss Bullard's
state law claims against the defendants.2
2
Before considering the merits, we consider the basis for our
jurisdiction. We conclude that we have jurisdiction to consider
the appeals of both the state and federal immunity issues. In
Mitchell v. Forsyth, 472 U.S. 511,
105 S. Ct. 2806,
86 L. Ed. 2d 411
(1985), the Supreme Court held that "a district court's denial of
a claim of qualified immunity, to the extent that it turns on an
issue of law, is an appealable `final decision' within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment."
Id. at 530, 105 S.Ct. at 2817. We conclude that the
denial of a qualified immunity motion at the 12(b)(6) stage, where
the district court must assume that factual allegations are true,
is a "purely legal" denial of qualified immunity. We thus have
appellate jurisdiction to review the district court's denial of the
three defendant DAs' motion for federal qualified immunity.
We also find that we have jurisdiction over the appeal of the
denial of official immunity under Texas law. Recently, in Cantu v.
Rocha, 77 F.3d 795 (5th Cir. 1996), we faced a nearly identical
question, and wrote:
We have previously held that an order denying qualified
immunity under state law is immediately appealable as a
"final decision," provided that the state's doctrine of
qualified immunity, like the federal doctrine, provides
a true immunity from suit and not a simple defense to
liability. . . .
We are persuaded that Texas law insulates government
officials from the burden of suit, as well as from civil
liability for damages. . . .
[O]rders premised on the denial of qualified
immunity under Texas state law are appealable in federal
court to the same extent as district court orders
premised on the denial of federal law immunity . . . .
Cantu, 77 F.3d at 803-04 (citations omitted).
We therefore conclude that we have jurisdiction to hear the
defendants' appeal in its entirety.
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II
We review the district court's ruling on a Rule 12(b)(6)
motion to dismiss de novo. We accept all well-pleaded facts as
true, and view them in the light most favorable to the plaintiff.
The plaintiff's complaint should only be dismissed if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim, which would entitle him to relief.
Qualified immunity extends to governmental officials
performing discretionary functions "insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738,
73 L. Ed. 2d 396
(1982). To overcome a qualified immunity defense, the plaintiff
must allege facts that, if proved, would demonstrate that the
defendants violated clearly established statutory or constitutional
rights. Wicks v. Mississippi State Employment Services,
41 F.3d
991, 995 (5th Cir.), cert. denied, __U.S.__,
115 S. Ct. 2555,
132
L. Ed. 2d 809 (1995). A plaintiff may not rest on general
characterizations, but must speak to the factual particulars of the
alleged actions, "at least when those facts are known to the
plaintiff and are not peculiarly within the knowledge of
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defendants." Schultea v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995)
(en banc).
We analyze the complaint under the framework presented in
Siegert v. Gilley, 500 U.S. 226,
111 S. Ct. 1789,
114 L. Ed. 2d 277
(1991):
First, the court must determine whether the plaintiff has
alleged a violation of a clearly established
constitutional right. Id. at 231, 111 S.Ct. at 1792-93.
If the plaintiff fails this step, the defendant is
entitled to qualified immunity. If he is successful, the
issue becomes the objective legal reasonableness of the
defendant's conduct under the circumstances. Anderson v.
Creighton, 483 U.S. 635, 638,
107 S. Ct. 3034, 3038,
94
L. Ed. 2d 523 (1987).
Baker v. Putnal,
75 F.3d 190, 198 (5th Cir. 1996).
III
A
(1)
The DAs do not contest that Bullard generally asserts a First
Amendment constitutional right to testify truthfully without
interference from state actors. The district court, however,
further determined that Bullard adequately alleged that these DAs,
along with the other defendants, retaliated against him by
effecting his discharge. The DAs argue that because they were not
Bullard's employers, and thus had no power to discharge him, they
cannot be held liable for Bullard's termination. Having reviewed
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this circuit's earlier jurisprudence on causation in similar
circumstances, we disagree.
In Professional Ass'n of College Educators v. El Paso County
Community College Dist., 730 F.2d 258 (5th Cir.), cert. denied,
469
U.S. 881,
105 S. Ct. 248,
83 L. Ed. 2d 186 (1984) (PACE), a college
administrator sued a college president under a First Amendment
retaliation theory. The plaintiff alleged that the president
suspended him without pay and brought formal charges recommending
to the Board of Trustees that he be discharged, because of his
formation of the Association of Administrators. The jury found
that "a substantial or motivating factor for the discharge of [the
plaintiff] was his associational activity," and returned a verdict
for the plaintiff. We affirmed, and wrote:
The causation issue in first amendment cases is purely
factual: did retaliation for protected activity cause the
termination in the sense that the termination would not have
occurred in its absence? It is not necessary that the
improper motive be the final link in the chain of causation:
if an improper motive sets in motion the events that lead to
termination that would not otherwise occur, "intermediate
step[s] in the chain of causation" do not necessarily defeat
the plaintiff's claim.
PACE, 730 F.2d at 266 (quoting Bowen v. Watkins,
669 F.2d 979, 986
(5th Cir. 1982)).
The defendants attempt to distinguish PACE. They argue that
the relationship between the college president and the Board of
Trustees was close enough to compel a finding of causation, because
-7-
they were members of the same institution and employed by the same
entity. They contend that the rationale underlying our decision in
PACE was an implicit finding that the school president could not
use the Board of Trustees as a shield for a decision made by the
Board, but with the president's guidance.
Although there is some force to the defendants' argument, we
cannot say, at this early stage in the litigation and with no
record evidence yet before us, that here "retaliation for protected
activity [did not] cause the termination in the sense that the
termination would not have occurred in its absence." Id. Mindful
that it was the defendants who chose to raise the qualified
immunity claim at the Rule 12(b)(6) stage, and expressing no
opinion on Bullard's ultimate ability to prove that some improper
motive led to Bullard's firing from the HPD, we conclude that
Bullard has adequately alleged a violation of his First Amendment
rights.
(2)
Having determined that Bullard has alleged a violation of a
clearly established constitutional right, we still must decide if
the defendants' conduct was objectively reasonable. Ganther v.
Ingle, 75 F.3d 207, 210 (5th Cir. 1996).3 In this case, taking
3
Qualified immunity shields government officials performing
discretionary functions from civil liability, "as long as their
actions could reasonably have been thought consistent with the
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Bullard's allegations as true, and viewing them in the light most
favorable to Bullard, and finding the constitutional right clearly
established at the time of the subject incidents, we cannot say at
this point and on this record that the three defendants, as a
matter of law, acted with objective legal reasonableness in
reacting to Bullard's testimony at the DWI trials. The gravamen of
Bullard's allegation is that, in retaliation for testifying
truthfully as to the state of the allegedly drunken defendants, the
three DAs set out on a campaign, ultimately successful, to have him
terminated from his job with the HPD. Bullard's allegations in
this case are sufficient to withstand 12(b)(6) dismissal, and we
affirm the district court's refusal to grant qualified immunity to
the defendants at this stage in the litigation.
rights they are alleged to have violated." Rankin v. Klevenhagen,
5 F.3d 103, 108 (5th Cir. 1993) (quoting Anderson v. Creighton,
483
U.S. 635, 638,
107 S. Ct. 3034, 3038,
97 L. Ed. 2d 523 (1987).
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B
Bullard also argues that "he had a protected property right in
employment by the City of Houston by virtue of state law that
prohibits termination for refusing to perform an illegal act,"4
Appellee's Br. at 15. He contends that this state property right
is protected under the substantive due process clause of the
Fourteenth Amendment, and that the DAs deprived him of this
property right in the following manner: "Miles, Chin and Colquette
provided known false information to the City of Houston which
resulted in his termination." Id. at 16. This act, he seems to
argue, is so arbitrary and capricious as to amount to a due process
deprivation, notwithstanding the subsequent procedural hearing he
received from the City of Houston. He makes this argument
independent of any procedural due process right that he may have.
Bullard cites no authority to support his theory of this
substantive due process rights claim,5 and does not otherwise
develop this argument in any persuasive manner.6 Although Sabine
4
See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 735
(Tex. 1985) (establishing a narrow public policy exception to
Texas' employment-at-will doctrine, providing an entitlement to
employment to the extent an employee may not be terminated for
refusing to commit an illegal act).
5
He instead cites several procedural due process cases.
6
Furthermore, even if Bullard had made an original and
persuasive argument, it would be difficult to recognize such a
substantive due process claim in the light of the Supreme Court's--
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may well support an allegation of a property right in this case,
Bullard has shown no more than his constitutional entitlement to
procedural due process to vindicate that right--a right he does not
press as to these three defendants. Furthermore, the way we are
given to understand this vaguely articulated claim, it is no more
than a restatement of his First Amendment claim, that is, that the
state is prohibited from retaliating against him for testifying
truthfully--a constitutional right that we have earlier
acknowledged is sufficiently alleged in the complaint. In any
event, whatever substantive due process right that Bullard is
attempting to evoke, it certainly was not then or now clearly
established. We therefore reverse the district court's decision
that allows Bullard to proceed with his Fourteenth Amendment
claims, and the conspiracy claims based on the Fourteenth Amendment
claims.7
and our own--rulings limiting the expansion of substantive due
process rights. See e.g., Albright v. Oliver, 114 S. Ct. 807, 812
(1994) (noting Court's reluctance to expand concept of substantive
due process, and that protections of substantive due process have
mostly been accorded to matters relating to marriage, family,
procreation, and right to bodily integrity); Griffith v. Johnston,
899 F.2d 1427 (5th Cir. 1990) (noting that courts must resist
temptation to augment substantive reach of Fourteenth Amendment,
particularly if it requires redefining category of rights deemed
"fundamental").
7
Bullard's unsuccessful "Fourteenth Amendment substantive due
process claim" may be explained by the confusion surrounding the
incorporation of certain of the constitutional amendments to the
States. As we recently explained:
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C
Bullard also alleges that the three defendants were part of a
civil conspiracy to violate his constitutional rights. A plaintiff
may assert a conspiracy to deprive him of protected constitutional
rights under 42 U.S.C. § 1983. Pfannstiel v. City of Marion, 918
F.2d 1178, 1187 (5th Cir. 1990). To prevail on such a claim, the
plaintiff must establish (1) the existence of a conspiracy
involving state action and (2) a deprivation of civil rights in
furtherance of the conspiracy by a party to the conspiracy.
Id.
If the steps allegedly taken by the official conspirators in
furtherance of the alleged conspiracy are objectively reasonable,
then the officials are entitled to qualified immunity.
Id. at
1188.
Because we have held that Bullard did not allege a cognizable
Fourteenth Amendment deprivation claim, his conspiracy claim based
on those same facts also collapses. His conspiracy claim arising
from and tied to his First Amendment claim, however, survives for
The first amendment is made applicable to the states
through the fourteenth amendment's due process clause.
McIntyre v. Ohio Elections Comm'n, ___U.S.___, 115 S. Ct.
1511,
131 L. Ed. 2d 426 (1995). As such, the plaintiffs'
first amendment retaliation claim may be characterized as
a "substantive due process" claim. See Brennan v. Stewart, 834
F.2d 1248 (5th Cir. 1988).
Rolf v. City of San Antonio,
77 F.3d 823 (5th Cir. 1996).
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the same reason the First Amendment claim itself is sufficient to
withstand the defendants' motion for 12(b)(6) dismissal.8
IV
Finally, we turn to the state claims. Texas law allows the
affirmative defense of official immunity to be raised where a
defendant demonstrates that he has acted in the performance of
discretionary duties performed in good faith within the scope of
the official's authority. City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994). The district court dismissed several
of the state law claims against the defendants. It also upheld the
wrongful termination claims against all three defendants.
A
The defendants first argue that they were entitled to immunity
respecting Bullard's claim that they conspired to wrongfully
8
The defendants argue that Bullard has not alleged sufficient
specific facts in support of his conspiracy claim. Bullard
responds that he alleged "that there was considerable
communication, verbal and written, between the three assistant
district attorneys and with members of the Houston Police
Department concerning their alleged problems with Bullard and their
assertion that he was allegedly incompetent." We conclude that
Bullard has alleged facts from which a jury could infer that Miles,
Chin and Colquette, along with the other named defendants, had a
common goal--adverse action against Bullard for testifying
truthfully and protesting the improper conduct of Miles, Chin and
Colquette. Compare Thomas v. Harris County, 784 F.2d 648, 652 (5th
Cir. 1986), cert. denied,
113 S. Ct. 1275 (1993) (allowing
conspiracy claim, on allegations similar to those contained in the
case at bar, to survive summary judgment).
-13-
terminate him from his position with the HPD. While we do not
speculate whether Bullard ultimately can prove a wrongful
termination claim, we find no error in the district court's refusal
to dismiss the claim at this juncture. The Texas Supreme Court has
announced that the test of an official's good faith (one of the
three elements of official immunity) "is derived substantially from
the test that has emerged under federal immunity law for claims of
qualified immunity . . . ." Chambers, 883 S.W.2d at 656. For the
same reasons that led us to conclude that the defendants could not
escape Bullard's First Amendment retaliation allegations based on
their mere assertions that their acts were objectively reasonable,
we also reject their claims for official immunity from the state
law wrongful termination claims. Minimal discovery in this case
might have led to a different result, but it was the defendants who
chose to come quickly to this court on a sparse record, and before
they developed all relevant facts.
Similarly, we find no error in the district court's refusal to
dismiss the conspiracy claim arising from the wrongful termination.
The defendants argue that Bullard has made "no showing under state
law that Miles, Chin, and Colquette were part of any civil
conspiracy or joint effort to terminate Bullard in violation of his
right not to be terminated for refusing to do an illegal act."
Bullard, however, is not yet required to make a "showing" of a
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conspiracy, to survive the defendants' Rule 12(b)(6) motion. To
state a claim for conspiracy under Texas law, he needs only to
allege that (1) there was a combination of two or more persons or
entities; (2) there was an oral or written agreement among those
persons or entities for a common purpose; (3) each of those persons
or entities had knowledge of that purpose; (4) each of those
persons or entities intended to participate therein; and (5) that
one or more overt acts were done in furtherance of the conspiracy.
Riquelme Valdes v. Leisure Resource Group, Inc., 810 F.2d 1345,
1351 (5th Cir. 1987). Texas has no "heightened pleading standard,"
and the Texas Supreme Court has noted that proof of a civil
conspiracy may, and usually must be made by circumstantial
evidence. See Schlumberger Well Surveying Corporation v. Nortex
Oil and Gas Corp.,
435 S.W.2d 854, 858 (Tex. 1969). Consequently,
we find no error in the district court's refusal to grant official
immunity on the conspiracy to wrongfully terminate claim at this
stage of the proceedings.
B
Although the district court dismissed the defamation claims
against Miles and Chin, it refused to dismiss the claim against
Colquette. The district court did not consider the adequacy of the
defamation claim; it simply refused to dismiss because, unlike the
claims against Miles and Chin, the Colquette claim was not barred
-15-
by the statute of limitations. In this case, Colquette briefly and
conclusorily argues that her decision to submit the offending
affidavit (that it was "common knowledge" among several defense
attorneys that they should not stipulate to the videotape whenever
Bullard was the PSO because Bullard generally supported their
defense), was part of the performance of her discretionary duties,
was within the scope of her authority, and was performed in good
faith. We have only the pleadings to test this statement against.
The pleadings indicate that the letter was knowingly false, and was
performed not in any measure of good faith, but instead as a
vindictive attempt to have Bullard removed from his job. Whether
subsequent discovery can support these allegations with credible
evidence is a question that will be answered later in the
proceedings on remand. We therefore hold that the district court
did not err in its refusal to dismiss the defamation claim against
Colquette.
V
CONCLUSION
We sum up: we affirm the district court's ruling denying
immunity to the three DAs with respect to Bullard's First Amendment
claim and related conspiracy claim, but dismiss Bullard's
Fourteenth Amendment claim and related conspiracy claim. We affirm
the district court's denial of official immunity under Texas law
-16-
for wrongful termination as to all three defendants, and affirm the
denial of immunity to defendant Colquette for the state defamation
claim.
At the oral argument of this case, counsel for the defendants
candidly acknowledged that the 12(b)(6) motion in this case was an
attempt to "pare down the issues" before trial. Issues might be
pared down more effectively, however, if minimal discovery is
conducted before the qualified immunity issues are tested.
Based on the foregoing, we REVERSE the district court's
refusal to grant qualified immunity to the defendants on the
-17-
plaintiff's Fourteenth Amendment claim and the conspiracy claim
related thereto, and AFFIRM in all other respects.
REVERSED in part and AFFIRMED in part.
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