Greg Porter v. Guadalupe Valdez

Case: 10-10409 Document: 00511474598 Page: 1 Date Filed: 05/11/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 11, 2011

No. 10-10409 Lyle W. Cayce

Clerk

GREG PORTER; MICHAEL RAMIREZ; SCOTT EVANS; STEVEN W.

JONES,

Plaintiffs - Appellees

v.

GUADALUPE VALDEZ; JESSE FLORES,

Defendants - Appellants

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CV-148

Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

This interlocutory appeal challenges denial of a motion for judgment on

the pleadings in a 42 U.S.C. § 1983 action by members of a sheriff’s department

for claimed constitutional violations by Sheriff Guadalupe Valdez and Executive

Chief Deputy Jesse Flores. Sued in their individual and official capacities,

defendants contend: the individual-capacity claims are barred by qualified

immunity; and plaintiffs failed to plead sufficient facts in support of their claims

*

Pursuant to 5TH CIR . R. 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 5TH CIR .

R. 47.5.4.

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No. 10-10409

against defendants not only in their individual, but also in their official,

capacities. Jurisdiction exists only to review the qualified-immunity denial

(which concerns only the individual-capacity claims). AFFIRMED in part;

REVERSED in part; REMANDED.

I.

Plaintiffs publically supported Sheriff Valdez’ opponent in the November

2008 Dallas County Sheriff’s election. Along that line, Senior Sergeant Greg

Porter and Deputy Michael Ramirez were reported by a Dallas newspaper as

being “the most outspoken critics of [incumbent] Sheriff . . . Valdez”. The Sheriff

was re-elected.

Lieutenant Steven Jones, Senior Sergeant Porter, and Deputies Ramirez

and Scott Evans are long-time members of the Sheriff’s Department. Senior

Sergeant Porter has served approximately 25 years, is SWAT certified, and prior

to the election was the department’s gun range master, having previously served

16 years as a firearms instructor; Deputy Ramirez has served 28 years, prior to

the election was the department’s only motorcycle-certified deputy, and was

assigned to Sunnyvale, Texas; Deputy Evans has served 16 years, and prior to

the election was one of the department’s two dog handlers; and Lieutenant Jones

has served approximately 29 years, and prior to the election was the patrol

section lieutenant, working from 8:00 a.m to 4:30 p.m.

Plaintiffs were also prominent members in several organizations active in

local politics: Deputy Ramirez, as a vice president for the Greater Dallas

Chapter of the National Latino Peace Officers Association and member of the

Texas Municipal Police Association (TMPA); Senior Sergeant Porter, as

Chairman of the Dallas County Sheriff’s Association (DCSA), and a director for

TMPA; Lieutenant Jones, as an active supporter of the campaign of the Sheriff’s

opponent in the 2008 election; and Deputy Evans, as president of DCSA and a

member of TMPA. Their political activity involved: all plaintiffs actively

campaigned for the Sheriff’s opponent and endorsed him at a news conference;

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three plaintiffs were leaders of police organizations that endorsed that opponent;

Lieutenant Jones coordinated deputies to work off-duty at the opponent’s

campaign events; and Deputy Ramirez was quoted in a Dallas newspaper stating

his support for the opponent.

On 12 December 2008, following the November election, Executive Chief

Deputy Flores announced the transfers of all four plaintiffs: Senior Sergeant

Porter, from day shift at the gun range to evenings in jail intake; Deputy

Ramirez, from day-patrol duty to midnight watch in jail release and duties at the

jail-information desk; Lieutenant Jones, from day shift in the patrol division to

midnight shift in jail intake; and, although Deputy Evans remained a dog

handler, to the night shift. According to a newspaper article included by

hyperlink in the complaint, Sheriff Valdez and Executive Chief Deputy Flores

stated the “reassignments” of plaintiffs and 16 others were “an effort to

maximize training and experience for all of [the department’s] employees” and

to give “everyone . . . an equal opportunity to learn and grow within the

department”.

Believing the transfers were in retaliation for their above-described

political activities, plaintiffs retained counsel, who by 6 January 2009 letter

advised the Sheriff of relevant law and requested that plaintiffs be returned to

their previous assignments. Receiving no response, plaintiffs filed this civil-

rights action on 29 January 2009. Plaintiffs claimed defendants’ actions, in their

individual and official capacities, constituted: First Amendment retaliation

(through the Fourteenth Amendment); and, in violation of the Fourteenth

Amendment, denial of due process of law, on both procedural and substantive

grounds, and of equal protection of the law. Plaintiffs conceded at oral argument

here that they seek the same relief from any of their claims.

Defendants filed an answer and, pursuant to Rule 12(c), moved for

judgment on the pleadings. Their motion contended: qualified immunity barred

plaintiffs’ claims against them in their individual capacities; and plaintiffs failed

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to provide the requisite well-pleaded facts for their claims against defendants in

their individual and official capacities.

Pursuant to Federal Rule of Civil Procedure 7(a)(7), the court ordered a

reply to the answer. The reply was to respond to defendants’ qualified-immunity

defense. The reply, however, addressed only retaliation.

The district court ruled: qualified immunity barred Deputy Evans’

individual-capacity, First Amendment retaliation claim; he generally failed to

state a First Amendment claim entitling him to relief, thus his official-capacity

claim in that regard also failed; and the remainder of the Rule 12(c) motion was

denied. Porter v. Valdez, No. 10-10409 (N.D. Tex. 25 Mar. 2010) (order granting

in part and denying in part motion for judgment on the pleadings). Other than

for Deputy Evans, the district court did not address plaintiffs’ official-capacity

claims, ruling that, by pleading facts sufficient to overcome qualified immunity,

plaintiffs had also stated a claim upon which relief may be granted. Id. at 7 n.3.

II.

In this interlocutory appeal, defendants maintain: plaintiffs’ individual-

capacity claims are barred by qualified immunity; and they failed to allege well-

pleaded facts that would permit valid retaliation, equal-protection, and due-

process claims, including against them in their official capacities. In short,

defendants are appealing more than the qualified-immunity denial.

A qualified-immunity denial, to the extent it turns on a matter of law, “is

an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment”. Mitchell v. Forsyth, 472 U.S.

511, 530 (1985); see also Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).

Because qualified immunity is immunity from suit, it includes, inter alia,

protection from burdens of discovery. “Such appellate review is premised upon

the reality that, in some instances, if an order is not reviewed before the

issuance of a final judgment, the practicality of reviewing that order is lost.”

Hill v. City of Seven Points, No. 00-41436, 2002 WL 243261, at *4 (5th Cir. 17

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Jan. 2002) (citing Mitchell, 472 U.S. at 525). This jurisdiction includes appeals

from denials of qualified immunity claimed in Rule 12(c) motions. Giardina v.

Lawrence, No. 09-30437, 2009 WL 4572837, at *1 (5th Cir. 7 Dec. 2009). On the

other hand, an interlocutory appeal is not permitted from the denial of Rule 12(c)

motions simply claiming a failure to plead sufficiently. See, e.g., Johnson v.

Johnson, 385 F.3d 503, 528-29 (5th Cir. 1999) (reviewing summary judgment

motion on interlocutory appeal).

Denial of a Rule 12(c) motion is reviewed de novo, accepting the

complaint’s well-pleaded facts as true and viewing them in the light most

favorable to plaintiff. E.g., In re Katrina Canal Breaches Litig., 495 F.3d 191,

205 (5th Cir. 2007). To withstand a Rule 12(c) motion, a complaint must provide

sufficient facts “to state a claim to relief that is plausible on its face”. Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and internal quotation marks

omitted). Rulings on Rule 12(c) motions are reviewed using the same

considerations as for reviewing rulings on Rule 12(b)(6) motions (failure to state

claim). E.g., Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). This

inquiry focuses on the allegations in the complaint, not whether plaintiffs have

pleaded sufficient facts to succeed on the merits. E.g., Ackerson v. Bean

Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009).

A.

Regarding issues that can be considered in this interlocutory appeal,

defendants claim, inter alia, that the claims against them in their individual and

official capacities are so intertwined that we have jurisdiction also to review the

rulings on the official-capacity claims. Of course, qualified immunity may not

be asserted for claims against defendants in such capacity; thus, our court is

normally without jurisdiction to consider official-capacity claims on interlocutory

review. E.g., Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392-93 (5th

Cir. 2000).

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On this record, we lack jurisdiction regarding those claims. They are not

so intertwined that this might be an exception to the rule against interlocutory

appeals for them because, among other things, other factors and elements are

at play than for claims against defendants in their individual capacities.

B.

Therefore, we turn to defendants’ contentions concerning qualified

immunity for the individual-capacity claims. For the reasons that follow,

defendants are not entitled to qualified immunity for the retaliation and due-

process claims; they are entitled to it for the equal-protection claim.

Qualified immunity serves to ensure government employees are not

impeded from their public work to defend frivolous actions. See generally Babb

v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). It is an immunity born of freedom

from suit, rather than simply a defense to liability. Del A. v. Edwards, 855 F.2d

1148, 1150 (5th Cir. 1988). Therefore, through qualified immunity, government

officials conducting discretionary functions “are shielded from liability for civil

damages insofar as their conduct does not [1] violate clearly established

statutory or constitutional rights [2] of which a reasonable person would have

known”. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, qualified-

immunity analysis is based upon two, well-established prongs: (1) whether

plaintiffs show violation of a clearly-established statutory or constitutional right;

and, if so, (2) whether they show defendants’ actions were “objectively

[un]reasonable in light of clearly established law”. Nunez v. Simms, 341 F.3d

385, 387 (5th Cir. 2003).

Qualified immunity can be asserted, of course, at different points in an

action. Because, in this action, it is asserted in response to the complaint, by a

Rule 12(c) motion, as opposed, for example, to asserting it through a summary-

judgment motion or at trial, there is, of course, no discovery or evidence on which

to base the two-prong analysis. Instead, the analysis for either prong must be

limited to the facts alleged in the complaint and the Rule 7 reply. As a result,

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review of defendants’ qualified-immunity assertion requires review of the

sufficiency of plaintiffs’ complaint because, as shown above, whether a sufficient

claim is pleaded is “both inextricably intertwined with and, directly implicated

by, the qualified immunity defense” asserted in response to the complaint.

Iqbal, 129 S. Ct. at 1946-47 (citations and internal quotations marks omitted).

1.

Plaintiffs contend they sufficiently pleaded a violation of the First

Amendment because their transfers were adverse employment actions, made in

retaliation for a constitutionally-protected activity—political speech. Defendants

counter that this claim is barred by qualified immunity because the law was not

clearly established; and, in that regard, plaintiffs failed to plead facts for a

plausible claim of First Amendment retaliation. For the latter, defendants

assert that the district court erred by permitting conclusory statements to suffice

for well-pleaded facts. Defendants contend, in the alternative: assuming the

First Amendment claim was sufficiently pleaded, plaintiffs did not sufficiently

plead, for prong-two purposes, that the transfers were objectively unreasonable

under clearly-established law.

a.

i.

Defendants maintain erroneously that the law is unsettled concerning

whether a lateral transfer can be an “adverse employment action”, especially

here, because, as plaintiffs conceded in their Rule 7 reply, they received neither

reduction in rank nor decrease in salary or benefits. “To be equivalent to a

demotion, [however,] a transfer need not result in a decrease in pay, title, or

grade; it can be a demotion if the new position proves objectively worse—such

as being less prestigious or less interesting or providing less room for

advancement.” Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999)

(citing Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996)).

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ii.

Equally unavailing is the contention that plaintiffs failed to plead

sufficient facts for their retaliation claim. A complaint must contain enough

facts “to raise a reasonable expectation that discovery will reveal evidence of [the

claim or element]”. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). For a

cognizable retaliation claim, plaintiffs must allege: (1) they suffered an adverse

employment action; (2) they were engaged in protected activity; and (3) there

was a causal connection between the two. E.g., Jordan v. Ector Cnty., 516 F.3d

290, 295 (5th Cir. 2008).

Plaintiffs alleged: they had obtained seniority within the department; it

operates on a seniority system that allows them a choice in assignment; they

possessed positions of seniority and prestige within it prior to Sheriff Valdez’ re-

election; they were outspoken supporters of the Sheriff’s political opponent; the

Sheriff and Executive Chief Deputy knew of plaintiffs’ political activities,

observing them in support of the Sheriff’s opponent at campaign events; and,

within 40 days after the election, the Sheriff and Executive Chief Deputy

ordered plaintiffs transferred to other positions perceived as being less

prestigious, less interesting, and having worse hours than before.

Considering the alleged facts in the requisite light most favorable to

plaintiffs, they sufficiently pleaded a First Amendment retaliation claim. It is

plausible that: they were subject to an adverse employment action; by

participating in campaign activities, they engaged in protected speech; and a

causal nexus exists for a First Amendment retaliation claim, given their

transfers occurred shortly after the Sheriff’s re-election. For the latter element,

“[c]lose timing between an employee’s protected activity and an adverse action

against him may provide the causal connection required to make out a prima

facie case of retaliation”. Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188

(5th Cir. 1997) (citation and internal quotation marks omitted).

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b.

As discussed supra, under the second prong of our qualified-immunity

analysis, we must determine whether plaintiffs showed defendants’ conduct was

“objectively [un]reasonable in light of clearly established law”. Nunez, 341 F.3d

at 387. To succeed on this prong in response to a Rule 12(c) motion, plaintiffs

must allege facts sufficient to show that no reasonable officer could have viewed

his actions were proper. Babb, 33 F.3d at 477. Again, “the objective legal

reasonableness of an officer’s conduct must be assessed in light of the legal rules

that were clearly established at the time of his action”. Manis v. Lawson, 585

F.3d 839, 846 (5th Cir. 2009) (citation and internal quotation marks omitted).

Plaintiffs contend the transfers were objectively unreasonable in the light

of clearly-established law because defendants “removed uniquely qualified,

veteran employees . . . and placed them in positions normally set aside for those

with less experience”. Defendants only assert a lack of clarity in the law

concerning adverse employment actions. For the reasons stated supra, existing,

relevant law was clear at the time of those actions; therefore, pursuant to the

facts as alleged, it is plausible that no reasonable officer could have believed his

actions were reasonable.

2.

Plaintiffs conceded at oral argument here that their equal-protection claim

is simply their First Amendment retaliation claim under a different title and

was made as part of their “shotgun approach” to claims against defendants.

Plaintiffs attempt to create their own equal-protection classification, founded

solely on their exercise of First Amendment protected speech. Plaintiffs failed

to allege facts for an equal-protection claim in the light of: protected speech

being an individual right; their failure to identify similarly treated individuals;

and, in particular, their concession at oral argument. Thompson v. City of

Starkville, 901 F.2d 456, 468 (5th Cir. 1990) (holding plaintiff fails to state an

equal-protection claim when it is a restatement of a First Amendment claim).

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Because the equal-protection claim is simply a restatement of the

retaliation claim, we need not address defendants’ contentions contesting a

class-of-one claim. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 608-09

(2008) (holding class-of-one, equal-protection claim not cognizable in public

employment context). Similarly, because the facts alleged in the complaint fail

to provide a plausible equal-protection claim, we need not address the second

prong (defendants’ objective reasonableness) for qualified-immunity analysis.

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (“A court may rely on

either prong of the defense in its analysis.”).

3.

Last, plaintiffs claim the transfers constituted a deprivation of their

property rights without procedural and substantive due process of law.

Defendants counter: the transfers did not constitute a deprivation of property;

and the due-process claim is barred because plaintiffs failed to exhaust the

department’s administrative procedures.

a.

Although the complaint presents a due-process claim “predicated on both

procedural and substantive due process”, plaintiffs fail to address the procedural

due-process issue in their brief. In any event, their claim hinges upon their

having a property interest in continued public employment. See, e.g., Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 n.3, 542 (1985) (procedural due-

process claim under § 1983 requires showing deprivation without due process of

life, liberty, or property interest); Moulton v. City of Beaumont, 991 F.2d 227,

230 (5th Cir. 1993) (substantive due-process claim requires showing arbitrary

or capricious termination of constitutionally-protected property interest in

employment).

“The Constitution does not create property interests . . . and [plaintiffs]

therefore look to Texas law for the creation of a property interest that will

support their claim to due process rights.” Garcia v. Reeves County, 32 F.3d 200,

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203 (5th Cir. 1994) (internal citation omitted). Public employees enjoy a

property right in continued employment, if their at-will status has been modified

by state or local law. Schaper v. City of Huntsville, 813 F.2d 709, 717 (5th Cir.

1987). “[W]hen a Texas city government adopts a personnel procedure which

includes a ‘just cause’ provision, the city employees’ at-will status is modified,

and they enjoy a property interest in continued employment”. Garcia, 32 F.3d

at 203 (citing Schaper, 813 F.2d at 713-14).

The department’s personnel policies include such a provision, having

adopted its civil service system pursuant to Chapter 158 of the Texas Local

Government Code, see generally D ALLAS C OUNTY, T EXAS, C ODE app. A; and,

plaintiffs have not been specifically exempted from that system. Texas Local

Government Code § 85.003(c) provides: “a deputy serves at the pleasure of the

sheriff”; however, “[a] deputy who is included in the coverage of a civil service

system created under Chapter 158 may be suspended or removed only for a

violation of a civil service rule adopted under that system”. T EX. L OC. G OVT.

C ODE A NN. § 85.003(c), (f). Arguably, plaintiffs have sufficiently alleged a

protected property interest in continued employment.

b.

In any event, as noted, defendants contend that plaintiffs did not state a

claim, for both procedural and substantive due process, because they failed to

allege facts that they utilized their administrative remedies before pursuing

their due-process claim. We decline to address this contention because it is

raised for the first time on appeal. E.g., Leverette v. Louisville Ladder Co., 183

F.3d 339, 342 (5th Cir. 1999).

III.

For the foregoing reasons, we lack jurisdiction to address the Rule 12(c)

order insofar as it pertains to plaintiffs’ official-capacity claims; that part of the

Rule 12(c) order addressing qualified immunity is AFFIRMED IN PART (for the

individual-capacity retaliation and due-process claims) and REVERSED IN

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PART (for the individual-capacity equal-protection claim); and this matter is

REMANDED for further proceedings consistent with this opinion.

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