Perricone v. City of Mineral Wells, Texas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CHRISTOPHER MICHAEL §

PERRICONE, §

§

Plaintiff, §

§

v. § Civil Action No. 4:19-cv-00992-O

§

CITY OF MINERAL WELLS, §

TEXAS, §

§

Defendant. §

MEMORANDUM OPINION & ORDER

Before the Court is Defendant’s Notice Regarding Settlement Negotiations (ECF No. 70),

filed on October 5, 2023. Due to the breakdown of the parties’ settlement efforts, Defendant

requests that the Court reset this case by ruling on the dispositive motions that were pending and

fully briefed prior to the parties’ notice of settlement.1 The Court GRANTS Defendant’s request

and now addresses one of the dispositive motions that were previously ripe for review.2

Accordingly, once again before the Court are Defendant’s Motion for Summary Judgment (ECF

No. 32), Brief in Support (ECF No. 33), and Appendix (ECF No. 34), filed December 15, 2023;

Plaintiff’s Summary Judgment Response (ECF No. 37), filed January 12, 2023; and Defendant’s

Summary Judgment Reply (ECF No. 38), filed January 13, 2023. Having considered the briefing,

facts, and applicable law, the Court finds that the Motion should be GRANTED, and all Plaintiff’s

claims should be DISMISSED with prejudice.

1 Def.’s Notice Regarding Settlement Negotiations 1–2, ECF No. 70.

2 Defendant submitted its Motion for Summary Judgment without waiving its Motion to Dismiss for Lack

of Jurisdiction, Motion for Judgment on the Pleadings, and Brief (ECF No. 15), filed October 8, 2020.

Def.’s Mot. for Summ. J. 1, ECF No. 32; see also Def.’s Mot. to Dismiss for Lack of Jurisdiction & Mot.

for J. on the Pleadings., ECF No. 15. While that prior Motion to Dismiss is also ripe, the Court, in its

discretion, chooses to resolve Defendant’s Motion for Summary Judgment. The Court also notes that both

motions, and the associated briefing submitted by both parties, are nearly identical.

I. FACTS

Plaintiff Christopher Perricone is the former mayor of the City of Mineral Wells, Texas,

and he held the office of mayor when the causes of action at issue in this dispute accrued. The

causes of action he brings against the City of Mineral Wells, Texas arise from a series of public

and private interpersonal conflicts, as well as crossing allegations of misconduct. Plaintiff’s claims

can be generally grouped into his declaratory judgment claims, his free speech claim, and his due

process claim.3

Importantly, the facts of this case appear entirely undisputed. In its Motion, Defendant

recounts several pages of “Undisputed Facts.”4 And even though Plaintiff incorporates his

response to Defendant’s Motion to Dismiss (ECF No. 15) into his summary judgment response,

neither pleading contains an alternate summary of facts.5 Indeed, the entirety of Plaintiff’s

proffered summary judgment evidence consists of only a two-page affidavit sworn by Plaintiff

himself.6 Moreover, Defendant’s own summary of the facts closely mirrors the facts alleged in

Plaintiff’s Original Petition.7 Accordingly, the following recitation of the facts is drawn from the

uncontested summary of facts in Defendant’s Motion for Summary Judgment, unless otherwise

specified.8

A. Plaintiff’s Declaratory Judgment Act Claims

Plaintiff alleges that the parties dispute the meaning of a word in the City Charter which

limits the mayor’s and City councilmembers’ interactions with City employees. The provision at

issue states that “the council and its members shall deal with the administrative service solely

3 Pl.’s Orig. Pet. ¶¶ 24–64, ECF No. 1-1.

4 Def.’s Mot. for Summ. J. 3–7, ECF No. 32.

5 Compare Pl.’s Resp. to Mot. to Dismiss, ECF No. 25 with Pl.’s Resp. to Mot for Summ. J., ECF No. 37.

6 Decl. of Christopher Perricone 8–9, Ex. A., Pl.’s Resp. to Def’s Mot. for Summ. J., ECF No. 37.

7 Compare Def.’s Mot. for Summ. J. 3–7, ECF No. 32 with Pl.’s Orig. Pet. ¶¶ 7–23, ECF No. 1-1.

8 Def.’s Mot. for Summ. J. 3–7, ECF No. 32.

through the city manager and neither the council nor any member thereof shall give orders to any

subordinate of the city manager, either publicly or privately.”9 Plaintiff contends that the City,

through its City Manager, has adopted an interpretation of the word “deal” in Section 28 which is

overbroad and which hinders Plaintiff’s ability to perform the duties of his office. For this reason,

Plaintiff seeks a declaration that the term “deal” in Section 28 means “to transact business with”

City employees.

Additionally, Plaintiff alleges that on July 30, 2019, the City Council passed a resolution

which restricted the items that could be placed on a City Council meeting agenda by requiring the

support of two councilmembers before an item could be placed on an agenda. Plaintiff contends

that this resolution conflicts with Section 34 of the City Charter, which permits the mayor to

request that a special meeting be called. Plaintiff claims that at some point he sought to call a

special meeting of the City Council, but he was unable to do so because he did not have the support

of any other councilmember to set the agenda for the meeting. Plaintiff seeks a declaration that he,

in his official capacity as mayor, has the authority to call a special meeting of the City Council

pursuant to Section 34 of the City Charter and that he may set the agenda for such a meeting

without the support of another councilmember.

B. Plaintiff’s Free Speech Claim

Plaintiff alleges that he began investigating the interactions among City personnel and two

business entities—the Industrial Foundation and Precision Ammunition—and that he had been

speaking out against the City’s decision to terminate a tax abatement agreement with Precision

Ammunition. Plaintiff claims that, on July 17, 2018, the City Council voted to terminate a tax

abatement agreement with Precision Ammunition and voted not to pursue an investigation

9 Pl.’s Orig. Pet. ¶ 26, ECF No. 1-1 (quoting Section 28 of the City of Mineral Wells Charter).

concerning the Industrial Foundation and Precision Ammunition. As mayor, Plaintiff claims that

he had been investigating what he believed to be improper and unlawful actions in connection with

the Industrial Foundation, and he believes that the City’s decision not to investigate the Industrial

Foundation was intended to prevent Plaintiff from continuing his investigation and to silence his

public criticism about actions by the City. Plaintiff asserts that the City Attorney indicated that if

Plaintiff continued to investigate the matter in contradiction to the City’s decision not to pursue an

investigation, Plaintiff would be subject to removal from office. According to Plaintiff, the City

“violated the Plaintiff’s First Amendment right to free speech when, the Council took formal action

to declare its intention not to pursue an investigation relating to the Industrial Foundation and

Precision Ammunition and later, acting through the duly appointed City Attorney, threatening to

remove the Plaintiff from his democratically elected office if the Plaintiff continued to investigate

and speak out against the matter.”10

Plaintiff asserts a claim under 42 U.S.C. § 1983. Specifically, Plaintiff asks the Court to

hold that the City’s vote concerning the Industrial Foundation and Precision Ammunition was a

prior restraint which violated Plaintiff’s constitutional rights and 42 U.S.C. § 1983.

C. Plaintiff’s Due Process Claim

On August 13, 2019, the City Clerk, Peggy Clifton, filed a complaint against Plaintiff,

claiming that he had repeatedly violated Section 28 of the City Charter. Section 28 restricts the

mayor’s interactions with City employees. Although Clifton’s complaint includes incidents which

allegedly took place in June and August of 2019, Plaintiff acknowledges that the City hired Randy

Criswell as its permanent City Manager in May of 2019—and some of the incidents detailed in the

complaint refer to Criswell’s involvement—Plaintiff nonetheless claims that the City’s prior

10 Id. ¶ 45.

interim City Manager, Margie Rose, determined that Clifton’s complaint was without merit and

declined to act on it. The City authorized an outside investigator, James Jeffrey, to investigate

Clifton’s complaint. On October 8, 2019, Jeffrey reported to the Council that, with respect to some

of Clifton’s charges, “the investigation disclosed sufficient evidence to clearly prove the allegation

made in the complaint.”11 Plaintiff contends that Jeffrey reported to the Council his finding that

three of the charges in Clifton’s complaint were sufficient to warrant a hearing for removing

Plaintiff from office pursuant to Section 28 of the City Charter. The Council chose not to pursue

this remedy. Instead, the Council voted to forego a hearing and to censure Plaintiff.

Plaintiff claims that the City violated his due process rights in two ways. First, Plaintiff’s

due process rights were violated due to Criswell prosecuting Clifton’s complaint a second time

when it was allegedly dismissed by the previous City Manager. Second, Plaintiff alleges that the

City violated his due process rights by censuring Plaintiff without holding a hearing and, as a

result, besmirching his reputation. Plaintiff seeks a declaration that the City’s censure is void for

having been made in violation of his due process rights.

D. Plaintiff Forfeited His Office

In February of 2020, Plaintiff forfeited his office as mayor of the City by operation of

Section 22 of the City Charter, which immediately disqualifies any person from serving as mayor

or councilmember if that person is in arrears in the payment of any taxes to the City. On February

14, 2020, pursuant to Section 24 of the City Charter, the City Council voted to elevate mayor pro-

tempore, Tammy Underwood, to interim mayor until a new mayor could be seated in the May,

2020 election. Plaintiff was not among the candidates for mayor or for a position on the City

Council in that year’s election (which was postponed until November 3, 2020). Plaintiff is not

11 Id. ¶¶ 21–22 (cleaned up).

currently serving as the mayor or in any other position on the City of Mineral Wells’ City Council.

However, Plaintiff did run an unsuccessful campaign to secure re-election as the City’s mayor in

2022. He intends to run for the position again in a future election cycle.12

E. Procedural History

On November 4, 2019, Plaintiff filed his Original Petition in the 415th Judicial District

Court in Parker County, Texas, while he was still mayor of the City of Mineral Wells, Texas.13 On

November 25, 2019, the City removed the state court lawsuit to this Court.14 This case was then

indefinitely stayed pursuant to 11 U.S.C. § 362 due to Plaintiff’s then-pending bankruptcy.15 The

Court re-opened this matter two years later on June 6, 2022 after Plaintiff’s bankruptcy

proceedings concluded.16 Defendant filed its Motion for Summary Judgment on December 15,

2022.17 Plaintiff filed his Response on January 12, 2023.18 And Defendant filed its Reply on

January 13, 2023.19 Before the Court could rule on Defendant’s Motion for Summary Judgment,

the parties jointly notified the Court on April 17, 2023 that a settlement was reached.20

In the six months that followed, the parties failed to formalize the terms of their settlement.

Eventually, each side separately filed a report confirming that attempts to finalize their settlement

failed.21 Despite prompting from the Court to file either a motion to enforce the oral settlement

12 Decl. of Christopher Perricone 8–9, Ex. A., Pl.’s Resp. to Def’s Mot. for Summ. J., ECF No. 37.

13 Pl.’s Orig. Pet., ECF No. 1-1.

14 Def.’s Not. of Removal, ECF No. 1.

15 October 28, 2020 Order, ECF No. 18.

16 June 6, 2022 Electronic Minute Entry, ECF No. 22.

17 Def.’s Mot. for Summ. J., ECF No. 32.

18 Pl.’s Resp. to Def.’s Mot. for Summ. J., ECF No. 37.

19 Def.’s Reply in Support of Summ. J., ECF No. 38.

20 Def.’s Second Suppl. Settlement Report, ECF No. 65; Pl.’s First Suppl. Settlement Report 2, ECF No.

67.

21 The parties describe the failure in slightly difference ways. Defendant characterizes the failed settlement

as “there was apparently no meeting of the minds between Plaintiff and Defendant as to the settlement of

this case at the April 10, 2023, settlement conference. Def.’s Second Suppl. Settlement Report 3, ECF No.

65.According to Plaintiff, “the parties may have reached an oral settlement” but “when they later attempted

to reduce the potential oral settlement agreement to writing, the parties were unable to agree on the actual

agreement or a joint notice that a settlement was not reached,22 Defendant instead filed its

own notice asking the Court to reset this case.23 Defendant also asked the Court to rule on the

dispositive motions still pending prior to the initial notice of settlement.24 Accordingly, the Court

turns to Defendant’s Motion for Summary Judgment now, which was ripe prior to the parties’

initial notice of a purported settlement.

II. LEGAL STANDARDS

Summary judgment is appropriate only where the pleadings and evidence show “that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a). Summary judgment is not “a disfavored procedural shortcut,” but

rather an “integral part of the Federal Rules as a whole, which are designed ‘to secure the just,

speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317,

327 (1986) (quoting FED. R. CIV. P. 1). A genuine dispute of material fact exists “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he substantive law will identify which facts are

material.” Id. The movant must inform the court of the basis for its motion and identify the portions

of the record that reveal there are no genuine disputes of material fact. Celotex, 477 U.S. at 323.

The court must view the evidence in the light most favorable to the nonmovant. Ion v.

Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). “Moreover, a court must draw all reasonable

inferences in favor of the nonmoving party and may not make credibility determinations or weigh

the evidence.” Id. And if there appears to be some support for disputed allegations, such that

terms of the potential oral settlement agreement.” Pl.’s First Suppl. Settlement Report 2, ECF No. 67.

Whatever the reason, no party has moved this Court to enforce the purported oral settlement.

22 September 19, 2023 Electronic Minute Entry, ECF No. 69.

23 Def.’s Notice Regarding Settlement Negotiations 1, ECF No. 70.

24 Id. at 1–2.

“reasonable minds could differ as to the import of the evidence,” the court must deny the motion

for summary judgment. Anderson, 477 U.S. at 250. “[Y]et the nonmovant may not rely on mere

allegations in the pleadings; rather, the nonmovant must respond to the motion for summary

judgment by setting forth particular facts indicating that there is a genuine issue for trial.” Caboni

v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002) (cleaned up). “After the nonmovant has

been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the

nonmovant, summary judgment will be granted.” Id.

III. ANALYSIS

As the Supreme Court held in Celotex, “[t]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery and upon motion, against a party

who fails to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial. 477 U.S. at 322. Here,

the entirety of Plaintiff’s proffered summary judgment evidence consists of only a two-page

affidavit sworn by Plaintiff himself.25 As such, the Court considers whether that single document

sufficiently establishes each element of Plaintiff’s claims. Because the Court finds Plaintiff has

failed to carry his burden, the Court GRANTS Defendant’s Motion and enters summary judgment

against Plaintiff.

A. Plaintiff’s Declaratory Judgment Claims

In his Original Petition, Plaintiff asks the Court for a declaratory judgment as to two

portions of the City of Mineral Wells Charter.26 But before evaluating the merits of these claims,

the Court must first consider whether Plaintiff has standing to seek the declaratory relief he

25 Decl. of Christopher Perricone 8–9, Ex. A., Pl.’s Resp. to Def’s Mot. for Summ. J., ECF No. 37.

26 Pl.’s Orig. Pet. ¶¶ 24–36, ECF No. 1-1.

requests. Because the Court finds that Plaintiff lacks standing to sue for the specific declaratory

relief he seeks, the Court must dismiss those claims.

Article III of the Constitution grants federal courts jurisdiction to adjudicate legal disputes

only in the context of a case or controversy. U.S. CONST. art. III; Camreta v. Greene, 563 U.S.

692, 701 (2011). The party invoking a court’s jurisdiction must establish that he has a personal

stake in the dispute by showing “he has ‘suffered an injury in fact’ that is caused by ‘the conduct

complained of’ and that ‘will be redressed by a favorable decision.’” Id. (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “The redressability requirement limits the

relief that a plaintiff may seek to that which is likely to remedy the plaintiff’s alleged injuries.”

Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 103 (1998)). Because declaratory relief cannot remedy a past wrong, a plaintiff

seeking declaratory relief “can satisfy the redressability requirement only by demonstrating a

continuing injury or threatened future injury.” Id. The continuing or future injury must be an injury

in fact. Id. “To be an injury in fact, a threatened future injury must be (1) potentially suffered by

the plaintiff, not someone else; (2) concrete and particularized, not abstract; and (3) actual or

imminent, not conjectural or hypothetical.” Id. at 720–21 (cleaned up). Importantly, “[t]o ensure a

case remains ‘fit for federal-court adjudication,’ the parties must have the necessary stake not only

at the outset of litigation, but throughout its course.” Camreta, 563 U.S. at 701 (quoting Arizonans

for Official English v. Arizona, 520 U.S. 43, 67 (1997)).

As a preliminary matter, the parties dispute whether the federal Declaratory Judgment Act

(“DJA”) should govern Plaintiff’s claims or whether they are governed by the Texas Uniform

Declaratory Judgment Act (“Texas UDJA”).27 However, this distinction is irrelevant. Neither the

27 Def.’s Br. in Supp. of Mot. for Summ. J. 6, ECF No. 33; Pl.’s Orig. Pet. ¶ 25.

DJA nor the Texas UDJA enlarge a court’s subject matter jurisdiction by conferring Article III

standing where none would otherwise exist. See, e.g., Texas Parks & Wildlife Dep't v. Sawyer Tr.,

354 S.W.3d 384, 388 (Tex. 2011) (“But generally, the [Texas UDJA] does not alter a trial court’s

jurisdiction.”); Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997) (“[I]t is well settled that

[the Declaratory Judgment Act] does not confer subject matter jurisdiction on a federal court where

none otherwise exists.”). Because Plaintiff lacks Article III standing to pursue any declaratory

relief, the Court need not resolve which declaratory judgment statute most appropriately governs

his claims.

Plaintiff may have had standing to sue for declaratory relief while serving as the mayor of

the City of Mineral Wells, but he is no longer mayor. After forfeiting his office in 2020, Plaintiff

mounted an unsuccessful campaign to reclaim his lost position in 2022.28 Despite his defeat,

Plaintiff intends “to run for the office of mayor of the City of Mineral Wells during a future election

cycle, which are held every two years.”29 However, Plaintiff’s “continuing intent to become mayor

of the City of Mineral Wells” does not afford him Article III standing.30 At present, Plaintiff is not

actually being harmed. And he cannot state with any degree of certainty when he will be harmed,

if ever. Perhaps Plaintiff may be re-elected mayor in 2024, or perhaps in 2026, or perhaps even

later, or perhaps never. Simply put, this injury is entirely hypothetical. It is also neither concrete

nor particularized since the Court cannot ascertain whether a future City Council—featuring a re-

elected Mayor Perricone—would even actively dispute the same provisions of the City Charter at

issue here. Given the conjectural and hypothetical nature of Plaintiff’s declaratory judgment

28 Decl. of Christopher Perricone 8, Ex. A., Pl.’s Resp. to Def’s Mot. for Summ. J., ECF No. 37.

29 Id.

30 Id.

claims, the Court cannot find that some concrete, particularized future injury is imminent or

actually exists at all.

As a final word on this point, Plaintiff also argues that he should have standing to sue for

declaratory relief as a concerned private citizen.31 According to Plaintiff, his declaratory judgment

cation “will shape and inform” how “future mayors and councilmembers of the City of Mineral

Wells can conduct themselves” and how “Perricone can effectively participate in the governance

. . . as a private citizen.”32 While Plaintiff cites no legal support for this proposition, the Court

interprets this argument as an attempt to invoke taxpayer standing. But this argument is unavailing.

The Supreme Court has “consistently held that this type of [taxpayer standing] interest is too

generalized and attenuated to support Article III standing.” Hein v. Freedom From Religion

Found., Inc., 551 U.S. 587, 599 (2007).

Even under Plaintiff’s preferred declaratory judgment act, he does not appear to be “[a]

person . . . whose rights, status, or other legal relations are affected by a . . . municipal ordinance.”

TEX. CIV. PRAC. & REM. CODE § 37.004(a). Applying the ejusdem generis and noscitur a sociis

canons of construction, the Court interprets “[a] person . . . whose rights, status, or other legal

relations” as belonging to the same general kind or class specifically mentioned alongside

associated words in the same statutory provision—persons interested under a deed, will, or written

contract. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 195–213 (2012) (discussing interpretative canons of construction). The Texas UDJA

indicates that “[a] person interested” must actually be “affected” in a meaningful way such that

their “rights, status, or other legal relations are affected. TEX. CIV. PRAC. & REM. CODE § 37.004(a).

Although municipalities may be sued under § 37.004, the interested person seeking a declaration

31 Pl.’s Resp. to Def.’s Mot. for Summ. J. 2–4, ECF No. 37.

32 Id. at 3.

must have a personal stake due to how the municipal ordinance or statute affects his rights, status,

or other legal relation. The record before the Court does not reveal that Perricone has such a right,

status, or legal relation now that he is no longer mayor. And the fact that the Texas UDJA

authorizes this limited class of suits against a municipality does not automatically confer standing

on every individual citizen not actually impacted by the ordinance. See TEX. CIV. PRAC. & REM.

CODE § 37.006(b) (authorizing lawsuits against municipalities since “any proceeding that involves

the validity of a municipal ordinance” requires “the municipality must be made a party”).

For these reasons, the Court concludes that Plaintiff lacks Article III standing to pursue his

claims for declaratory relief.33

B. Plaintiff’s Free Speech Claim

Plaintiff also alleges a violation of his right to free speech.34 Because the Court finds that

Plaintiff failed to articulate a cognizable free speech claim against the City of Mineral by

establishing each element of municipal liability, the Court must also dismiss this claim.

Municipal liability under 42 U.S.C. § 1983 requires (1) proof of a policymaker, (2) an

official policy or custom, and (3) a violation of constitutional rights whose “moving force” is the

policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell

v. Dep’t of Social Services, 436 U.S. 658, 694 (1978)). At the summary judgment stage, the

33 Defendant also argues that the Court lacks jurisdiction under the Texas UDJA due to governmental

immunity. Def.’s Br. in Supp. of Mot. for Summ. J. 8–11, ECF No. 33. Plaintiff responds by arguing that

the text of the Texas UDJA contains a waiver of such immunity. Pl.’s Resp. to Def.’s Mot. for Summ 3–6,

ECF No. 37. Although the Texas UDJA appears to contain a limited waiver of immunity, Plaintiff must

still establish standing. And after establishing standing, Plaintiff may only then sue a municipality under §

37.004 to invalidate the ordinance rather than obtain a declaration regarding his statutory rights or the

meaning of the legislative enactment. See City of McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102,

112 (Tex. App.—Dallas 2013, no. pet) (explaining that the Texas UDJA “waives governmental immunity

against claims that a statute or ordinance is invalid” but “does not waive immunity against claims seeking

a declaration of the claimant’s statutory rights or an interpretation of an ordinance”). Moreover, the Texas

UDJA cannot be used as an independent cause of action. Sid Richardson Carbon & Gasoline Co. v.

Interenergy Res., 99 F.3d 746, 752 n.3 (5th Cir. 1996) (citation omitted).

34 Pl.’s Orig. Pet. ¶¶ 37–45, ECF No. 1-1.

plaintiff bears the burden of pointing to specific facts which would allow a jury to find each of

these elements in his favor. Celotex, 477 U.S. at 322.

Plaintiff fails to carry his burden here. In fact, the entirety of Plaintiff’s municipal liability

argument is found in a single paragraph in his Original Petition:

The Defendant violated the Plaintiff’s First Amendment right to free speech when,

the Council took formal action to declare its intention not to pursue an investigation

relating to the Industrial Foundation and Precision Ammunition and later, acting

through the duly appointed City Attorney, threatening to remove the Plaintiff from

his democratically elected office if the Plaintiff continued to investigate and speak

out against the matter.35

And this argument does not sufficiently improve at the summary judgment stage:

The City, acting by and through its council, which is its ultimate authority and

policymaker, infringed upon his constitutional rights by threatening to remove

Perricone from his democratically elected office of mayor if Perricone did not cease

to investigate and speak out regarding a matter of public interest. Such conduct is

the exemplar of a violation of the constitutional right of free speech. Perricone seeks

damages for the violation of his constitutional right, which is actionable under

§1983. Therefore, the Motion should be denied.36

Notably, these excerpts represent Plaintiff’s entire argument on municipal liability. Plaintiff’s

argument on this issue in his response to Defendant’s motion to dismiss is nearly identical in that

it is similarly devoid of legal or factual citations.37 Collectively, Plaintiff’s nascent municipal

liability arguments lack any legal citations. And the summary judgment record lacks facts that

show Plaintiff successfully carried his burden of pointing to specific facts which would allow a

reasonable juror to find each Monell element in his favor.

Plaintiff cannot survive summary judgment simply by restating the nature of his free speech

claim with conclusory allegations identifying different official policymakers, switching from the

35 Id. ¶ 45.

36 Pl.’s Resp. to Def.’s Mot. for Summ. J. ¶ 15, ECF No. 37.

37 Pl.’s Resp. to Mot. to Dismiss ¶ 28, ECF No. 25.

City Attorney to the City Council.38 That the City Attorney purportedly threatened to remove

Plaintiff from office should Plaintiff continue to investigate and speak out on the investigation is

not enough. The City Attorney is not a final policymaker, and his alleged actions cannot form the

basis of any municipal liability for the City under § 1983. See Piotrowski, 237 F.3d at 578.

Even if the Court were to ignore this allegation regarding the City Attorney in Plaintiff’s

Original Petition—and instead find that his later filings pointing to the City Council satisfy this

element of municipal liability—Plaintiff would still fall short. The Court cannot infer an argument

on Plaintiff’s behalf at the summary judgment stage regarding the remaining two elements. That

burden belongs to Plaintiff alone. Plaintiff failed to demonstrate how the City Council’s decision

not to pursue an investigation of Industrial Foundation and Precision Ammunition somehow

implicated his free speech rights, especially given that the City did not vote to remove him from

office. The minutes describing the vote involve no prohibition of any kind on any conduct or action

of Plaintiff—or of any other City Councilmember, for the matter.39 Instead, the evidence shows

that this vote was merely a decision by the City Council not to have the City conduct an official

investigation—be it because of finite resources or some other reason not violating Plaintiff’s free

speech rights.40 What is germane to this lawsuit is that there is no evidence (other than Plaintiff’s

own conclusory allegation) that his free speech was actually violated by an official policy or

custom.

For these reasons, Plaintiff has not established as a matter of law that an official policy or

custom put in place by an official policymaker served as the moving force for a violation of his

38 Compare Pl.’s Orig. Pet. ¶ 45, ECF No. 1-1 (alleging “the duly appointed City Attorney” as the official

policymaker) with Pl.’s Resp. to Def.’s Mot. for Summ. J. ¶ 15, ECF No. 37 (identifying the “City . . .

council” as the “ultimate authority and policymaker”).

39 See July 17, 2018 Minutes 3, Ex. A, Def.’s Not. of Removal, ECF No. 1-1.

40 See id.

constitutional rights. Accordingly, the Court finds that Plaintiff has failed to carry his burden to

overcome municipal liability at this stage to show that a reasonable juror might conclude he has a

cognizable free speech claim against the City of Mineral Wells. Accordingly, Defendant is entitled

to summary judgment on Plaintiff’s free speech claim.

C. Plaintiff’s Due Process Claim

Plaintiff asserts a 42 U.S.C. § 1983 claim that the City of Mineral Wells violated his

Fourteenth Amendment rights when its City Council publicly censured him without affording him

due process. Yet as before, Plaintiff fails to adequately plead this claim. Therefore, the Court must

grant summary judgment on it in favor of Defendant.

In analyzing a due process claim, courts engage in a two-part inquiry, determining first

whether the plaintiff was deprived of a protected interest, and, if so, determining what process is

due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). When the protected interest at

issue involves a reputational harm, courts employ the stigma-plus test first articulated Paul v.

Davis. 424 U.S. 693 (1976). To satisfy this two-part stigma-plus test, plaintiffs alleging

reputational harm must show that: (1) they suffered a stigma from governmental action plus (2)

they experienced an alteration or extinguishment of “a right or status previously recognized by

state law.” Paul, 424 U.S. at 711. The Fifth Circuit “has consistently applied Paul by requiring

that a section 1983 claimant show a stigma plus an infringement of some other interest.” San

Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991); see also Kovac v. Wray, 363 F.

Supp. 3d 721, 753 (N.D. Tex. 2019) (summarizing stigma-plus jurisprudence). And turning to the

second half of the broader due process inquiry, when the government deprives a person of a

protected life, liberty, or property interest, the government must provide an “opportunity to be

heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (internal quotations and citation omitted).

Plaintiff fails both prongs of the due process inquiry because he has not articulated a

constitutionally cognizable injury. To begin, the evidence shows that the City provided notice and

afforded Plaintiff a meaningful opportunity to be heard before he was censured.41 Plaintiff

participated in the meeting at which the City Council authorized Jeffrey to investigate the City

Clerk’s complaint, Plaintiff was interviewed by Jeffrey, and Plaintiff’s counsel even provided

Jeffrey with a written response to the complaint, which was included in the investigation report

the Council received.42 None of those facts are disputed by Plaintiff. Instead of specifically

showing that a reasonable juror might find he was deprived of an opportunity to be heard, Plaintiff

simply alleges a denial of process in a conclusory fashion. This is insufficient to raise a genuine

issue of material fact. Moreover, since he forfeited his position as mayor, Plaintiff’s only relevant

surviving property interest is his reputation, which he alleges has been harmed by the City’s public

censure.43 But even if Plaintiff is correct that this stigma besmirches his reputation, more is

required under the stigma-plus test. Both Plaintiff’s Original Petition and his summary judgment

response reveal that Plaintiff’s due process claim rests entirely on the purported damage to his

reputation. This is insufficient. Therefore, having failed to establish a dispute of material fact on

these due process issues, summary judgment must be granted in favor of Defendant once again.

IV. CONCLUSION

For the foregoing reasons, the Court determines that Defendant’s request to reset this case

and address the dispositive motion previously ripe is GRANTED. To that end, the Court

41 See August 27, 2019 Minutes 3, Ex. D, Def.’s Not. of Removal, ECF No. 1-1

42 See id.; Report of Investigation 0026–40, 0059–62, Ex. F., Def’s App’x to Mot. for Summ. J., ECF No.

34.

43 Decl. of Christopher Perricone 8, Ex. A., Pl.’s Resp. to Def’s Mot. for Summ. J., ECF No. 37.

determines that Defendant’s Motion for Summary Judgment (ECF No. 32) should be, and is

hereby, GRANTED. Plaintiff’s claims are hereby DISMISSED with prejudice in their entirety.

Final Judgment shall issue.

SO ORDERED on this 8th day of November, 2023.