# Mitchell v. City of Houston

> District Court, S.D. Texas · August 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10675790

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675790

## Opinion text

August 30, 2022
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

KENNETH MITCHELL, § CIVIL ACTION NO.
Plaintiff, § 4:18-cv-04052
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
CITY OF HOUSTON, §
et al, §
Defendants. §
OPINION AND ORDER
GRANTING SUMMARY JUDGMENT
The motion by Defendants for summary judgment is
granted. Dkt 55.
1. Background
The following facts aren’t disputed except where noted.
Plaintiff Kenneth Mitchell was hired by the Houston
Police Department as an officer in January 2006 after
serving as a cadet since July 2005. He requested and
received an assignment in the Willowbrook neighborhood
of Northwest Houston in 2016. He did so because he lived
near Willowbrook and wanted to be closer to friends and
family. Dkt 55-1 at 5; Dkt 8 at ¶¶ 10 & 13. Mitchell was
eventually promoted to the role of Senior Police Officer at
some point in 2017. Dkt 55-1 at 4.
HPD Chief Art Acevedo created the new North Belt
Division in 2017 and appointed Captain Daryn Edwards to
develop it. The North Belt Division combined four existing
territories (or beats) that police officers patrol—two in
Greenspoint, one in Willowbrook, and one around
Intercontinental Airport. The Greenspoint beats are to the
north in Harris County, the Willowbrook beat is to the
northwest, and the Intercontinental beat is to the
northeast. Dkt 55-4 at 7–8.
Edwards sought to centralize the North Belt Division
in Greenspoint. He made this decision after reviewing
several empirical studies and consulting other chiefs and
the management team of the North Belt Division. Dkt 55-4
at 26 & 47–48; see also Dkt 8 at ¶ 24. Under his plan, HPD
officers like Mitchell—who reported to the Willowbrook
storefront, a community police facility—would instead
report to the Greenspoint police station. Dkt 55-4 at 25–26
& 47–48.
Mitchell learned about this potential change in March
2018 during an informal conversation with several
sergeants assigned to Willowbrook. Dkts 55-1 at 10–11
& 55-2 at 2. The change at that time was still tentative and
not public information. Dkts 55-1 at 9 & 55 at 17.
Mitchell met with Sergeant Jason Fenn later that
month. Dkts 55-1 at 8, 55-2 at 2 & 55-8 at 4. They discussed
contacting the president of the Houston Northwest
Chamber of Commerce, Larry Lipton, to prevent
implementation of Edwards’ plan. Dkts 55-1 at 8, 55-2 at 2,
55-6 at 2 & 55-8 at 4. Whether Mitchell volunteered or was
directed to contact Lipton is disputed. Dkts 55 at 11, 55-2
at 3 & 61 at 7. But all parties agree that Mitchell was to
contact Lipton.
Mitchell first contacted Lipton by telephone while on
duty on March 22, 2018. The exact details of this initial
conversation are unclear from the record. But Mitchell
identified himself as an HPD officer and expressed his
concerns about the potential change in reporting location
from Willowbrook to Greenspoint. Dkt 55-1 at 8–9. Lipton
apparently told Mitchell that he would “do his best to
advocate” for him and requested a follow-up email
identifying the issues and arguments against the change.
Dkt 55-2 at 3.
Mitchell that same day sent the requested email from
his personal email address while off-duty. Dkt 55-1 at 10.
He explained that HPD intended to change the reporting
location for Willowbrook officers from the Willowbrook
storefront to the Greenspoint station. Dkt 55-3 at 2. And he
made the following contentions, among many others:
o “The reason [this change] affects the safety,
because a unit will no longer be able to hop into
a car as soon as they get to work and respond
to a high priority call in Willowbrook.”
o “Once officers start reporting to [Greenspoint],
the Staff will just send random officers to
[Willowbrook storefront] whenever a call has to
be ran and start neglecting Willowbrook for
[Greenspoint].”
o “Management is just gambling, betting that
nothing will happen or the incidents that hold
will not progress, because the units in
[Greenspoint] are tied up switching shifts and
finishing their late calls.”
o “An active shooter or serious incident will
happen in Willowbrook.”
o “Bottom line, HPD will never admit it, but
Willowbrook will have no one at its post
approximately 3 times a day from 40 minutes
to 60 minutes, nearest HPD officer will be 13
minutes away, with no traffic. However, the
dispatcher will have to find an officer to
dispatch that isn’t tied up or send a sergeant
which will take 10 minutes and that would be
for a high priority call. If not a Code 1 or 2, they
will downgrade the call and just have it hold
possibly as I have seen up to 2 to 3 hours.”
o “2/3 of the Sergeants and Officers were
originally part of [Greenspoint], and have the
mentality that nothing happens in
[Willowbrook storefront]. They believe (with
some good reason) that [Greenspoint] is one of
the roughest parts of the city, and because they
care about their beat, they are willing to
sacrifice the coverage and protection of
Willowbrook, to use [Willowbrook storefront]
resources for [Greenspoint].”
o “Already Willowbrook has lost its resources
and gotten the short end of the stick.”
o “In conclusion, add the time for the unit coming
off in Greenspoint with the time of the Officer
arriving at work to arrive to Willowbrook, and
you can see where that will leave Willowbrook,
no matter how the brass attempts to sugar coat
it to the civilians and public.”
Dkt 55-3 at 3–4 (alterations for clarity without correction
for spelling, grammar, and punctuation).
Lipton later forwarded Mitchell’s email to the
Willowbrook Mall manager, the director of security at
Willowbrook Methodist Hospital, Harris County Sheriff’s
District Commander Captain Jay Coons, and Harris
County Precinct 4 Constable Mark Hermann. Dkt 8
at ¶¶ 1, 28. He also shared it with Mitchell’s shift
lieutenant, Lieutenant Bridget Lummus. Dkt 55-4 at 19.
Lummus then filed a complaint against Mitchell on
March 29, 2018. She alleged that the email sent by Mitchell
to Lipton “is written in a way that would bring alarm to the
citizens of the community,” “sheds a negative light upon
the department,” and was “written in poor taste and poor
judgment.” Dkt 55-6; see also Dkts 55-8 at 2 & 55 at 11.
Complaints against HPD employees generally proceed
in six steps as follows. First, upon receipt, the Internal
Affairs Division opens an investigation. Dkt 55-10 at 18.
That investigation typically concludes within sixty days
and results in a final allegation recommendation of “never
formalized, sustained, not sustained, exonerated or
unfounded.” Id at 19–20. Second, when an allegation is
sustained, the accused employee meets with his legal
representative, shift supervisor, immediate supervisor,
and division manager “to review and discuss the findings
of the investigation” and “to reach an agreement on the
disciplinary range category for the infraction.” Id at 22–23.
Third, the assistant chief for the division reviews the
recommended discipline category and indicates his
agreement or disagreement. Id at 24. Fourth, the
Administrative Disciplinary Committee reviews all
findings and produces a report to the Chief of Police
“documenting the sufficiency of the investigation and
describing recommended disciplinary action.” Ibid. Fifth,
the Chief of Police conducts a disciplinary review meeting
at which the accused employee may once again plead his
case. Id at 69; see also Dkt 55-13 at 2. Sixth, the Chief of
Police issues a final decision, which the employee may
appeal. Dkts 55-10 at 65–66 & 55-18 at 46–51.
The complaint against Mitchell tracked the first four
steps of the above format. First, the Internal Affairs
Division notified Mitchell of the complaint in early
April 2018 and opened an investigation. Dkt 55-5.
Assistant Chief Troy Finner temporarily reassigned
Mitchell to dispatch pending the investigation. Finner
maintains that this wasn’t in any way punitive but is
instead a common practice to avoid unnecessary friction
during an investigation. Dkt 55-7 at 19–20. Mitchell
contends to the contrary that being sent to dispatch is a
“well-known form of punishment.” Dkt 8 at ¶ 31. And
Finner acknowledges that some officers may view being
sent to dispatch negatively. Dkt 55-7 at 19.
The Internal Affairs Division concluded its
investigation in May 2018. Dkt 55-8. It found that
Mitchell’s email to Lipton violated General Order 200-08,
which provides:
Employees shall neither publicly nor at
internal official meetings criticize or
ridicule the department or any of its
policies, City officials, or other employees
by speech, writing, or other expression that
is defamatory, obscene, or unlawful, or that
undermines the effectiveness of the
department or interferes with the
maintenance of discipline, or is made with
reckless disregard for truth or falsity.
Id at 8–9. The report further found that Mitchell’s email
contained inflammatory comments, and that he “should
have reasonably been aware” that such comments “would
cause fear and safety concerns in the reader.” Id at 9. The
report also determined that Mitchell “recklessly
disregarded the truth” when he stated in his email that the
change of reporting location would result in a lack of police
resources and extended response time for Willowbrook.
Ibid.
Second, Lummus (as Mitchell’s shift lieutenant) and
Edwards (as his division command) met with Mitchell on
June 19, 2018. They considered the findings of the Internal
Affairs Division, any mitigating or aggravating factors, and
Mitchell’s past conduct. They ultimately recommended a
discipline category of D, which is reserved for “[f]irst
occurrence of severe rules violations” and carries a ten-to-
fifteen-day suspension. Dkts 55-9 (disciplinary category
worksheet) & 55-10 at 49 (corrective action manual).
Third, Finner reviewed the recommendation and
concurred with the decision. Dkt 55-9 at 3.
Fourth, the Administrative Discipline Committee
reviewed the investigation and the division command
recommendation. The committee recommended a
discipline category of E, which is reserved for “[f]irst
occurrence of egregious rules violations.” Dkt 55-11. Such
an offense carries the possibility of an indefinite
suspension, a sixteen-to-ninety-day suspension by
agreement, and/or a demotion. Ibid; see also Dkt 55-10
at 49. Though the “vote for the recommendation of an
indefinite suspension was unanimous,” the committee
wasn’t “opposed to a lengthy suspension.” Dkt 55-11.
Mitchell was relieved of duty with pay effective
June 27, 2018, pending a disciplinary review meeting with
Acevedo. Dkts 55-1 at 17 & 55-12. The suspension also
prohibited him from working any extra jobs. Dkt 55-1
at 17. It’s unclear if Mitchell had been working other jobs
while serving as an HPD officer, but it appears that he was
at least able to do so before he was taken off duty. Ibid.
Neither the fifth nor the sixth steps—including the
meeting with Acevedo—ever occurred. Mitchell had
graduated law school at some point while serving as an
HPD officer, and he desired to start his own firm. Dkts 55-1
at 4, 17 & 55-14 at 4. Mitchell thus inquired about the
possibility of resigning with an honorable discharge.
Dkts 55-1 at 17, 55-14 at 4 & 61-1 at 18. Houston Police
Officer’s Union President Ray Hunt contacted either
Acevedo or Ann Spiegel (Deputy Director of Chief’s
Command—Legal Services) about this request, and one or
both informed Hunt that the Department would allow
Mitchell to resign honorably. Dkt 55-14 at 4. Both Hunt
and Spiegel communicated this fact to the union attorney
representing Mitchell at the time. Dkts 55-14 at 4–5, 55-16
& 61-1 at 8–9, 12, 14. And so, Mitchell subsequently
resigned with an honorable discharge on July 12, 2018.
Dkts 55-1 at 17 (Mitchell deposition), 55-17 (resignation)
& 61-2 (discharge paperwork).
Acting on his own behalf, Mitchell brought this action
in October 2018, naming only the City of Houston as a
defendant. Dkt 1. He amended his complaint four days
later to add Acevedo. Dkt 4. Mitchell later secured
representation and filed a second amended complaint,
adding Finner and Edwards as defendants. Dkt 8. All
claims asserted in the complaint proceed under 28 USC
§ 1983, but without clarity as to which claims Mitchell
brings against each Defendant. See Dkt 8 at ¶¶ 37–42. It’s
assumed that he brings First Amendment retaliation and
bystander-liability claims against Acevedo, Finner, and
Edwards in their individual capacities, as well as a Monell
municipal-liability claim against the City.
Defendants jointly moved for summary judgment after
discovery concluded. Dkt 55. They contend that Mitchell
failed to establish a claim for First Amendment retaliation,
bystander liability, or Monell liability. Acevedo, Finner,
and Edwards also assert qualified immunity. The parties
were granted leave to submit supplemental briefing, and
argument was heard on the motion in January 2022. See
Dkts 80, 81, 82 & 83.
2. Legal standard
Rule 56(a) of the Federal Rules of Civil Procedure
requires a court to enter summary judgment when the
movant establishes that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.” A fact is material if it “might affect the
outcome of the suit under the governing law.” Sulzer
Carbomedics Inc v Oregon Cardio-Devices Inc, 257 F3d 449,
456 (5th Cir 2001), quoting Anderson v Liberty Lobby Inc,
477 US 242, 248 (1986). And a dispute is genuine if the
“evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Royal v CCC & R Tres
Arboles LLC, 736 F3d 396, 400 (5th Cir 2013),
quoting Anderson, 477 US at 248.
The summary judgment stage doesn’t involve weighing
the evidence or determining the truth of the matter. The
task is solely to determine whether a genuine issue exists
that would allow a reasonable jury to return a verdict for
the nonmoving party. Smith v Harris County, 956 F3d 311,
316 (5th Cir 2020). Disputed factual issues must be
resolved in favor of the nonmoving party. Little v Liquid
Air Corp, 37 F3d 1069, 1075 (5th Cir 1994). All reasonable
inferences must also be drawn in the light most favorable
to the nonmoving party. Connors v Graves, 538 F3d 373,
376 (5th Cir 2008).
The moving party typically bears the entire burden to
demonstrate the absence of a genuine issue of material
fact. Nola Spice Designs LLC v Haydel Enterprises Inc,
783 F3d 527, 536 (5th Cir 2015); see also Celotex Corp v
Catrett, 477 US 317, 322–23 (1986). But when a motion for
summary judgment by a defendant presents a question on
which the plaintiff bears the burden of proof at trial, the
burden shifts to the plaintiff to proffer summary judgment
proof establishing an issue of material fact warranting
trial. Nola Spice, 783 F3d at 536. To meet this burden of
proof, the evidence must be both “competent and
admissible at trial.” Bellard v Gautreaux, 675 F3d 454, 460
(5th Cir 2012).
3. First Amendment retaliation claims
The First Amendment to the United States
Constitution in pertinent part provides, “Congress shall
make no law . . . abridging the freedom of speech.” This
right “has been incorporated to apply to the states via the
Due Process Clause of the Fourteenth Amendment.”
White v Sanders, 49 F3d 728, 1995 WL 103629, *1 n 4 (5th
Cir, per curiam), citing Gitlow v New York, 268 US 652, 666
(1925). It may be enforced against state officials through
28 USC § 1983. See Nixon v City of Houston, 511 F3d 494,
497 (5th Cir 2007).
The Fifth Circuit recently summarized First
Amendment law as it applies to public employers:
When a citizen enters government service,
the citizen by necessity must accept certain
limitations on his or her freedom. This is
because the public employer, like any
principal, has an interest in controlling the
activities of its agents, including employee
speech that contravenes the public
employer’s policies or impairs the proper
performance of its functions. Even if the
employer has such an interest, however,
that interest must still be balanced against
the employee’s own interests: A citizen who
works for the government is nonetheless a
citizen, and the First Amendment limits
the ability of a public employer to restrict,
incidentally or intentionally, the liberties
employees enjoy in their capacities as
private citizens.
Bevill v Fletcher, 26 F4th 270, 276 (5th Cir 2022) (cleaned
up).
To state a viable First Amendment retaliation claim,
a state employee must demonstrate that (i) he suffered an
adverse employment action, (ii) he spoke as a citizen on a
matter of public concern, (iii) his interest in the speech
outweighs the government’s interest in the efficient
provision of public services, and (iv) the speech precipitated
the adverse employment action. Anderson v Valdez,
845 F3d 580, 590 (5th Cir 2016); see also Bevill, 26 F4th at
276.
Mitchell’s retaliation claims founder on the first prong.
Quite simply, he didn’t suffer an adverse employment
action.
Adverse employment actions, considered
With respect to the requirement of an adverse
employment action, Mitchell advocates for application of
the materially adverse standard used in Title VII actions.
Dkt 61 at 12–13. Under that standard, an employee “must
show that a reasonable employee would have found the
challenged action materially adverse.” Burlington
Northern & Santa Fe Railway Co v White, 548 US 53, 68
(2006). In other words, the question is whether the action
“might have dissuaded a reasonable worker from” engaging
in the protected conduct at issue. Ibid (quotation marks
and citation omitted).
The Supreme Court hasn’t spoken on whether that
standard applies to First Amendment retaliation claims.
See Houston Community College System v Wilson, 142 S Ct
1253, 1261 (2022) (noting that “lower courts have taken
various approaches” to distinguish material from
immaterial adverse actions). Neither has the Fifth Circuit.
See Spears v McCraw, 2021 WL 3439148, *2 (5th Cir, per
curiam), citing Johnson v Halstead, 916 F3d 410, 422 n 5
(5th Cir 2019). This alone precludes its application to the
claims brought by Mitchell against the individual
Defendants, as the law in that regard isn’t clearly
established for the purpose of qualified immunity. See
Harmon v Dallas County, 927 F3d 884, 892 (5th Cir 2019,
per curiam); Brown v Tarrant County, 985 F3d 489, 495
(5th Cir 2021).
Regardless, the Fifth Circuit has steadfastly limited
adverse employment actions to “ultimate employment
decisions,” such as “discharges, demotions, refusals to hire,
refusals to promote, and reprimands.” Foley v University of
Houston System, 355 F3d 333, 341 (5th Cir 2003); Breaux v
City of Garland, 205 F3d 150, 157 (5th Cir 2000) (quotation
marks and citation omitted). Mitchell offers no persuasive
argument to water down this precedent. Indeed, the Fifth
Circuit has “declined to expand the list of actionable”
claims in the First Amendment context, “noting that some
things are not actionable even though they have the effect
of chilling the exercise of free speech.” Benningfield v City
of Houston, 157 F3d 369, 376 (5th Cir 1998). As explained
in Breaux, “The reason for not expanding the list of adverse
employment actions is to ensure that § 1983 does not
enmesh federal courts in relatively trivial matters.”
205 F3d at 157 (quotation marks and citation omitted).
Application here of the materially adverse standard
used in Title VII actions must therefore be rejected.
Instead, adverse employment actions are restricted to
ultimate employment decisions. See Foley, 355 F3d at 341;
Breaux, 205 F3d at 164; see also Jackson v Texas Southern
University, 997 F Supp 2d 613, 638 (SD Tex 2014).
Adverse employment actions, applied
Mitchell contends that the “formal communications
chastising him for his actions and informing him of a
temporary suspension” constitute a reprimand. Ibid. He
also maintains that “the threat of a less than honorable
discharge should clearly be considered the denial of a
benefit because of its bearing on future employment.” Id
at 17. And the combination of the alleged reprimand and
threat, he argues, “effectively forced [him] to resign.” Id
at 12, 16–17.
None of these arguments withstand scrutiny under the
pertinent standard.
i. Reprimand, temporary transfer, and
temporary suspension
The Fifth Circuit has unequivocally stated that
investigations like the one at issue here are not adverse
employment actions. Breaux, 205 F3d at 157–58. In such
light, nonpublic communications informing Mitchell of the
status of the investigation obviously can’t constitute an
adverse employment action. See id at 164 (rejecting as
basis for First Amendment retaliation claim “mere
accusations” and public-but-withdrawn reprimand). Nor
can his temporary transfer to dispatch or his temporary
suspension with pay and benefits. See Brown v City of
Saltillo, 106 F Supp 3d 784, 789–90 (ND Miss 2015)
(collecting cases holding that temporary suspensions with
pay and benefits that occur during investigations can’t
serve as basis for First Amendment retaliation claim).
True, the temporary suspension prevented Mitchell
from working overtime or participating in outside
employment opportunities for two weeks. But that’s simply
what happens during any investigation—whether or not
related to putative First Amendment conduct. And the
Fifth Circuit holds that such losses incident to an
investigation don’t constitute adverse employment actions.
Indeed, it found in Breaux that actions incident to an
investigation such as “reprimands, psychological and
polygraph testing, suspension with pay,” and transfer to
what the plaintiff asserted was a less desirable unit didn’t
“either individually or collectively constitute adverse
employment actions.” 205 F3d at 164.
ii. Threat of less than honorable discharge
Scant record evidence supports contention that
Mitchell faced a less than honorable discharge, though
some documents suggest that an indefinite suspension may
result in an involuntary separation from HPD. For
example, see Dkt 55-19 at 58; see also Dkt 55-14 at 9 (Hunt
deposition) (stating belief that dishonorable discharge was
never “on the table”). Regardless, the Fifth Circuit is
absolutely clear on this point. The mere threat or potential
of an ultimate employment decision is insufficient to
establish an adverse employment action. Breaux, 205 F3d
at 160. Hypothetical future harm simply doesn’t suffice.
As the allegedly threatened discharge here was never
realized, it plainly can’t serve as the basis for Mitchell’s
First Amendment retaliation claim.
iii. Alleged constructive discharge
The Fifth Circuit “has ‘recognized that constructive
discharge may be an appropriate basis for a section 1983
action.’” Caldwell v Lozano, 689 F Appx 315, 319 (5th Cir
2017, per curiam), quoting Kline v North Texas State
University, 782 F2d 1229, 1234 (5th Cir 1986). But to prove
constructive discharge, an “employee ‘must offer evidence
that the employer made the employee’s working conditions
so intolerable that a reasonable employee would feel
compelled to resign.’” Caldwell, 689 F Appx at 319–20,
quoting Stover v Hattiesburg Public School District,
549 F3d 985, 991 (5th Cir 2008); see also Benningfield v
City of Houston, 157 F3d 369, 378 (5th Cir 1998). “A
plaintiff may also be ‘constructively discharged if the
employer gives the employee an ultimatum to quit or be
fired.’” Caldwell, 689 F Appx at 320, quoting Perret v
Nationwide Mutual Insurance Co, 770 F3d 336, 338
(5th Cir 2014). Importantly, constructive discharge doesn’t
occur “when a ‘reasonable employee had other options . . .
before choosing to leave his job.’” Ibid, quoting Haley v
Alliance Compressor LLC, 391 F3d 644, 652 (5th Cir 2004).
Mitchell doesn’t come close to meeting this standard.
He may not have liked the investigation that HPD
conducted, but HPD plainly has the authority to
investigate the conduct of its officers. More important,
Mitchell didn’t face a “quit or be fired” scenario following
that investigation. A less-than-honorable discharge
certainly wasn’t inevitable, as the Administrative
Discipline Committee explicitly stated that it wasn’t
“opposed to a lengthy suspension.” Dkt 55-11. Mitchell also
had options other than resigning, including a chance to
plead his case before Acevedo and an opportunity to appeal
any decision Acevedo made. Dkts 55-10 at 65–66 & 55-18
at 46–51.
Rather than take any of those paths, Mitchell decided
to resign with an honorable discharge. Dkts 55-1, 55-17
& 61-2 (discharge paperwork). The record indicates that no
one forced him into this decision. For example, see Dkt 55-1
at 17–18. Quite the contrary, Mitchell had graduated from
law school and desired to begin his own practice. Id at 4,
17; see also Dkt 55-14 at 4. Far from constructively
discharging Mitchell, HPD accorded him lenience and
allowed him his requested opportunity to resign with
honor. Under any reasonable view of the situation, this
would have constituted a final and binding end of the entire
dispute. But Mitchell instead accepted that gesture of good
will from HPD, only to turn around and file this action.
The initial complaint against Mitchell stated that the
email he sent was “written in poor taste and poor
judgment.” Dkt 55-6. Much the same can be said about his
initiation of this litigation. What’s more, such conduct can
easily be viewed as contrary to Rule 1 of the Southern
District of Texas Rules of Discipline, which states,
“Lawyers who practice before this court are required to act
as mature and responsible professionals, and the minimum
standard of practice shall be the Texas Disciplinary Rules
of Professional Conduct.” The preamble to the Texas rules
notes that a “lawyer should use the law’s procedures only
for legitimate purposes and not to harass or intimidate
others.” Rule 3.01 then specifically prohibits a lawyer from
bringing a proceeding “unless the lawyer reasonably
believes that there is a basis for doing so that is not
frivolous.” And comment 2 of that rule goes on to say that
a “filing or assertion” is frivolous for these purposes “if it is
made primarily for the purpose of harassing or maliciously
injuring” a person or entity.
Substantial questions exist as to whether Mitchell
initiated this action on his own behalf “primarily for the
purpose of harassing or maliciously injuring” his former
employer; whether he evoked the hallmarks of a “mature
and responsible” professional when he initiated this action
pro se; and whether he has “use[d] the law’s procedures
only for legitimate purposes.” But no question exists as to
whether HPD constructively discharged Mitchell or
otherwise took an adverse employment action against him.
It didn’t.
Summary
No dispute of material fact exists. The employment
actions taken by HPD during its investigation of Mitchell
weren’t ultimate employment decisions. And Mitchell
wasn’t constructively discharged. As a matter of law, then,
Mitchell didn’t suffer an adverse employment action.
Summary judgment will be granted on Mitchell’s First
Amendment retaliation claims.
4. Bystander and Monell liability claims
Once the First Amendment retaliation claim is
dismissed, the other claims resolve in like fashion.
As to Section 1983 bystander liability, the Fifth Circuit
holds that an officer who didn’t personally act against the
plaintiff may be liable under Section 1983 pursuant to a
bystander-liability theory where the officer knows that a
fellow officer is violating an individual’s constitutional
rights, has a reasonable opportunity to prevent the harm,
and chooses not to act. Whitley v Hanna, 726 F3d 631, 646
(5th Cir 2013). This standard plainly requires that a fellow
officer commit a constitutional violation before another
officer may be liable for failure to intervene.
With it determined above that no underlying
constitutional violation exists, Acevedo, Finner, and
Edwards can’t be liable on theory of bystander liability.
Summary judgment will be granted as to this claim.
As to Monell liability, a plaintiff can bring a claim
under Section 1983 to hold a city liable for the
unconstitutional actions of its employees. Such a claim
requires a plaintiff to demonstrate a policymaker, an
official policy or custom, and a violation of constitutional
rights whose “moving force” is the official policy or custom.
Piotrowski v City of Houston, 237 F3d 567, 578 (5th Cir
2001).
Again, such a claim requires an underlying
constitutional violation. None exists. Summary judgment
will be granted as to this claim.
5. Conclusion
The motion by Defendants the City of Houston,
Houston Police Department Chief Art Acevedo, Assistant
Chief Troy Finner, and Police Captain Daryn Edwards for
summary judgment is GRANTED. Dkt 55.
The claims asserted by Plaintiff Kenneth Mitchell are
DISMISSED WITH PREJUDICE.
A final judgment will issue separately.
SO ORDERED.
Signed on August 30, 2022, at Houston, Texas.
__________________________
Hon. Charles Eskridge
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675790. Public record. Not legal advice.