Biggers v. Massingill

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STEVE BIGGERS,

Plaintiff,

v. No. 4:23-cv-0359-P

RON MASSINGILL,

Defendant.

OPINION & ORDER

Before the Court is Defendant’s Motion to Dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 8. For the

reasons stated below, the Court concludes that Defendant’s motion is

GRANTED.

BACKGROUND

This case arises from Plaintiff’s series of appearances at the Hood

County, Texas Commissioners’ Court. Since 2021, the court’s meetings

have been governed by its “Rules of Procedure, Conduct, and Decorum

at Meetings” (the “Public Comment Rule”). The Public Comment Rule

allows any member of the public to register and speak on any agenda

item of the meeting at which the speaker appears. But at the first

regularly scheduled meeting of each month, speakers may use their

public comment to address any other, non-agenda topic they wish.

In addition to regulating discussion topics, the Public Comment Rule

addresses meeting decorum. Part IV(f) provides that:

It is not the intention of the Hood County Commissioners’

Court to provide a public forum for the demeaning of any

individual or group. Neither is it the intention of the Court

to allow a member (or members) of the public to insult the

honesty and/or integrity of the Court, as a body, or any

member or members of the Court, individually or

collectively. Accordingly, profane, insulting, or threatening

language directed toward the Court and/or any person in

the Court’s presence and/or racial, ethnic, or gender slurs

or epithets will not be tolerated. These Rules do not

prohibit public criticism of the Commissioners’

Court, including criticism of any act, omission,

policy, procedure, program, or service.

ECF No. 1 at 16 (emphasis in original).

Beginning in 2022, Plaintiff appeared in a series of public comment

periods criticizing various policies of the court, and he alleges that these

critiques began to draw Defendant’s “ire.” The parties’ animosity peaked

at a December 2022 court meeting, where Plaintiff used his public

comment to confront Defendant with a recorded conversation caught by

an inadvertently hot microphone at the previous month’s meeting. The

conversation allegedly included Defendant’s gloating about having

Plaintiff removed from prior public meetings for his disruptiveness, and

political remarks concerning the dawn of a “new Republican Party”—

purportedly to be led by Defendant, a county judge.

Plaintiff alleges that, as he took the podium to play the recording,

Defendant spoke over him and threatened to have Plaintiff removed or

arrested. Defendant cited Part IV(f)’s clause which repudiates public

comments that attempt to undermine the personal integrity or honesty

of individual commissioners.

Plaintiff returned to the court’s January 2023 meeting, where he

again attempted to unveil the revelations of Defendant’s recorded

conversation. According to video evidence and Plaintiff’s allegations,

Defendant immediately began ordering a rather idle sheriff’s deputy—

no doubt familiar with the parties’ personal history—to remove Plaintiff

from the meeting. Plaintiff alleges he was unable to finish his remarks.

Plaintiff sued, contending that his removal from the meeting violated

his First Amendment right to be free from viewpoint discrimination in

a limited public forum and the Equal Protection Clause of the

Fourteenth Amendment. Defendant filed the instant motion to dismiss.1

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a suit

when the Court lacks subject-matter jurisdiction. Fed. R. Civ. P.

12(b)(1). Lack of subject-matter jurisdiction can be found in: (1) the

complaint alone, (2) the complaint supplemented by undisputed facts

evidenced in the record, or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts. Ramming

v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

To survive a motion to dismiss under Rule 12(b)(6) a plaintiff must

plead “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court, in turn,

must accept all well pleaded facts in the complaint as true and view

them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). If there are well-

pleaded factual allegations, the Court assumes their veracity and then

determines whether they plausibly give rise to an entitlement to relief.

Id.

ANALYSIS

Defendant contends that Plaintiff’s claims fail as a matter of law

because he is entitled to qualified immunity. See ECF No. 8 at 21.

Government officials performing discretionary functions generally

are shielded from suit if their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known. Ramirez v. Guadarrama, 3 F.4th 129, 133

(5th Cir. 2021). “The protection of qualified immunity applies regardless

1 Defendant filed both the instant motion to dismiss (ECF No. 8), and a separate

document that he labelled his “Alternative First Supplemental Motion to Dismiss”

(ECF No. 17). The Court is unsure what Defendant means by filing his “alternative

first supplemental motion:” whether he would like the Court to consider it instead of

his original, how many alternatives he intends to file, or what he intends to

supplement. But the Court generally believes that “one is enough” when it comes to

dispositive motions. Thus, the Court will only consider his original motion (ECF No. 8)

and the associated briefing thereto.

of whether the government official's error is a mistake of law, a mistake

of fact, or a mistake based on mixed questions of law and fact.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009). When a defendant invokes

qualified immunity, the burden then rests on the plaintiff to

demonstrate that qualified immunity is inapplicable. Ramirez,

3 F.4th at 133.

To defeat a defendant’s assertion of qualified immunity, a plaintiff

must show: (1) the violation of a constitutional or statutory right, and

(2) that the right in question was clearly established at the time of the

alleged violation—the district court may address either prong first. Id.;

Pearson, 555 U.S. at 236. To be clearly established, “[t]he contours of the

right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). For the purposes of a qualified

immunity analysis, the reasonableness of the official’s conduct and the

clarity of the right in question are merged into one question. Ramirez, 3

F.4th at 133–34.

Here, the Court will not address whether Plaintiff’s First

Amendment rights have been violated because any right was not clear

enough to overcome Defendant’s qualified immunity. Thus, the Court

will first address whether a reasonable commissioner in Defendant’s

position would have clearly understood that removing a similarly

situated speaker violates that speaker’s First or Fourteenth

Amendment rights.

Applicable jurisprudence supports a fair assumption that a

reasonable presiding officer would not recognize that removing a

speaker for an alleged decorum violation clearly runs afoul of the First

or Fourteenth Amendments. See Chiu v. Plano Indep. Sch. Dist., 260

F.3d 330, 345–47 (5th Cir. 2001) (opining that there is disagreement

over the meaning of “designated public forum” and “limited public

forum,” that there is often “confusion” over their application, and

affirming that “nonpublic” and “private” are technically—somehow—

opposites); see also Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747,

761 (5th Cir. 2010) (opining that “[w]here boundary lines of forum use

cross to content and viewpoint discrimination can be elusive, and we do

not suggest that in application a content-neutral rule cannot offend”—

whatever that means).

What is clear is that the government can restrict access to limited

public forums if the restrictions are reasonable and do not suppress

expression solely based on the official’s opposing view to the speaker.

Chiu, 260 F.3d at 346. And that such local meeting policies regulating

the decorum of speakers have been upheld as neutral and non-

viewpoint-discriminatory under the First Amendment. Fairchild,

597 F.3d at 760.

Indeed, a recent case in the Northern District almost identical to the

one before this Court concluded that the removal of a citizen speaker for

personally confronting a member of the Dallas County Commissioners’

Court during his public comment did not violate his Equal Protection

rights. Stein v. Dallas Cnty., 2023 WL 2700720, at *4 (N.D. Tex. Mar.

29, 2023) (Fitzwater, J.). There, a locally notorious political activist used

his public comment to question a commissioner about an article written

in D Magazine highlighting the commissioner’s college-aged criminal

activity. Id., at *1. The commissioner removed the speaker, citing the

Dallas County Code provision prohibiting citizens at public meetings

from “demeaning an individual or an organization.” Id., at *3. The court

held that the plaintiff was not similarly situated to other participants at

the meeting because his purported violation of the rule differentiated

him from other speakers and provided the commissioner a rational basis

to cut his presentation short. Id. Thus, the court concluded that his

removal was permissible under the Fourteenth Amendment. Id.

This sampling alone shows that where a speaker is removed for

running afoul of a public body’s codified decorum rules and its stated

intent behind its public comment period, it is not sufficiently clear that

his removal violates a constitutional right. Under current precedent, a

reasonable, similarly situated presiding officer of a local public meeting

may have the understanding that he could take the actions Defendant

did here. And even if Defendant were mistaken about the law or the

facts, “[t]he protection of qualified immunity applies regardless.”

Pearson, 555 U.S. at 231.

CONCLUSION

Viewing Plaintiffs allegations in the light most favorable to him, he

fails to establish that Defendant would have clearly understood that

removing him from the public meeting violated the First or Fourteenth

Amendments. Thus, Plaintiff cannot overcome Defendant’s qualified

immunity. To the extent that Plaintiff raises other issues under the

Texas Constitution or Texas public meeting laws, those issues are better

resolved in the Texas state courts.

Accordingly, Defendant’s Motion to Dismiss (ECF No. 8) is

GRANTED. The Court hereby ORDERS that this case is DISMISSED

with prejudice.

SO ORDERED on this 8th day of September 2023.

MARK T. PITTMAN

UNITED STATES DISTRICT JUDGE