David Sims v. City of Madisonville

Case: 16-20440 Document: 00514532868 Page: 1 Date Filed: 06/28/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 16-20440 June 28, 2018

Lyle W. Cayce

DAVID SIMS, Clerk

Plaintiff - Appellant

v.

CITY OF MADISONVILLE; MADISONVILLE POLICE DEPARTMENT;

JEFFERY COVINGTON,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:

David Sims, a former officer with the Madisonville Police Department

(MPD), sued the City of Madisonville, Texas (the City), 1 and his former

supervisor, Sergeant Jeffrey Covington, under 42 U.S.C. § 1983, alleging that

he was terminated after reporting acts of misconduct by Covington in violation

of his First and Fourteenth Amendment rights. The district court granted

summary judgment in favor of the City on the grounds of res judicata, and later

granted summary judgment in favor of Covington based on qualified

1 Although Sims initially pleaded allegations against the City and the MPD

separately, they are not discrete juridical entities.

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immunity. Sims appeals those judgments as well as several of the court’s

preliminary rulings.

I

David Sims was a police officer with the MPD from 2004 until 2012,

when he was terminated. Prior to his termination, Sims had reported up the

chain of command that his supervisor, Sergeant Jeffrey Covington, solicited

help from other officers in planting drugs on Covington’s wife during a custody

battle over their two children. Sims had previously attempted to report

Covington’s misconduct to Police Chief Claude May in October 2011, but Chief

May dismissed the allegations at the time. In June 2012, Sims discovered

audio recordings on Covington’s computer in which Covington could be heard

asking another officer to help him plant the drugs. Sims accessed the

recordings a second time, saved the files to a CD, and gave the CD to a Texas

Ranger investigating Covington on other matters. In July 2012, Sims, having

learned from another officer that Covington was investigating him, searched

the network computer and found Covington’s investigative file, which

contained “notes on Sims, unauthorized GPS tracking data and camera video”

pertaining to Sims.

On July 24, Sims overslept and missed an appearance in Municipal

Court. The next day, Sims met with Chief May and Covington and was placed

on probation for allegedly failing to appear in Municipal Court on several

occasions. At that meeting, Sims possessed typed notes rebutting the

allegations he found in Covington’s investigative file. Covington and Chief

May noticed the notes and contacted City Manager Danny Singletary. At some

point following that meeting, Chief May and Singletary contacted AgniTEK

Technology Solutions to investigate whether Sims had accessed Covington’s

files without authorization. AgniTEK ultimately concluded that there had

been a computer breach and that it originated from Sims’s computer. On July

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27, Sims was called into Chief May’s office and terminated for violating the

MPD’s Computer Use Agreement. After Sims was terminated, Ranger

Stephen Jeter investigated whether Sims accessed confidential files on

Covington’s computer, and Sims was eventually indicted for computer security

breach, a felony under Texas law. The charges were later dismissed “in the

interest of justice.” Covington was ultimately indicted and convicted of charges

related to framing his wife, and he voluntarily resigned from the MPD.

On July 14, 2014, Sims sued the City in state court, alleging claims under

the Texas Whistleblower Act. The City filed a plea to the jurisdiction, and the

state court granted that plea, dismissing Sims’s state court claims with

prejudice. While the state court case was pending, Sims sued the City and

Covington in federal court under 42 U.S.C. § 1983, alleging a conspiracy to

violate his First and Fourteenth Amendment rights. The City and Covington

moved for summary judgment based on the preclusive effect of the state court’s

dismissal. The district court granted the City’s motion for summary judgment

on res judicata grounds, but denied Covington’s motion, concluding that

Covington was not a party to the state court action and failed to establish

privity. Covington later brought a second motion for summary judgment on

the basis of qualified immunity. After significant motion practice, the district

court granted Covington’s motion for summary judgment. Sims appeals those

judgments.

II

We review a district court’s grant of summary judgment de novo. Howell

v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016). Summary judgment is

appropriate where, construing the evidence in the light most favorable to the

non-moving party, “there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S. Ct.

1861, 1866 (2014) (quoting FED. R. CIV. P. 56(a)). A genuine dispute of material

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fact exists when the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736

F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).

III

We first address the individual liability claims brought against

Covington. Sims argues that Covington violated the First Amendment by

retaliating against him for engaging in protected speech when he reported

Covington’s misconduct. He also alleges that Covington violated his clearly

established due process rights by depriving him of a property interest in

continued employment with the MPD and liberty interests in a name-clearing

hearing and in being free from criminal indictment and arrest based on false

evidence. Sims also contends that Covington conspired with others to deprive

him of these rights. 2

A

On the First Amendment retaliation claim, the district court granted

summary judgment on the basis of qualified immunity. It cited our recent

holding in Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015), that the law is

“unsettled . . . whether someone who is not a final decisionmaker and makes a

recommendation that leads to the plaintiff being harmed can be liable for

retaliation.” Id. at 627. Covington did not have the authority to terminate

2 Sims challenges a number of administrative rulings connected to the summary

judgment motion including the district court’s refusal to strike Covington’s declaration, the

200-page limit it imposed on his response to the summary judgment motion, and its rejection

of his late request to file a surreply. We find no abuse of discretion in any of these rulings.

Sims had ample opportunity to litigate the summary judgment motion, and the district court

accommodated Sims in granting a number of extensions of time. Most importantly, Sims

does not identify how the challenged aspects of Covington’s declaration or the additional

summary judgment evidence he wanted to include could overcome any of the primarily legal

obstacles to his claims that resulted in the grant of summary judgment.

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Sims; Chief May, who was not sued, did. 3 Unsettled liability for a

nondecisionmaker like Covington would entitle him to a qualified immunity

defense because public officials are subject to section 1983 liability only if their

actions “were objectively unreasonable in light of clearly established law at the

time of the violation.” Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016).

But we are getting ahead of ourselves. Qualified immunity is a two-step

process. The first asks whether the defendant violated the plaintiff’s

constitutional rights. The second step adds the protection for the defendant

that liability attaches only if the right was clearly established. Id. We now

have discretion to skip the first inquiry and resolve a case solely on clearly

established grounds. Pearson v. Callahan, 555 U.S. 223, 240 (2009). Yet in

overruling the short-lived regime of Saucier v. Katz, 533 U.S. 194, 200 (2001),

which required courts to first address the underlying constitutional question,

Pearson recognized it would still “often [be] advantageous” to follow the two-

step order. 555 U.S. at 242. Doing so is “beneficial” here for reasons the

Supreme Court recognized. Id. at 236. This is the fourth time in three years

that an appeal has presented the question whether someone who is not a final

decisionmaker can be liable for First Amendment retaliation. Pennypacker v.

City of Pearl, 689 F. App’x 332, 332 (5th Cir. 2017) (dismissing retaliation claim

because liability for individual defendants was not clearly established); Howell,

827 F.3d at 526 (affirming dismissal of retaliation claim on different ground

when district court dismissed based on belief “a non-final decision maker may

not be held liable for First Amendment retaliation claims brought under

3 Sims contends that Covington had the express authority to discipline and terminate

employees and that, in his case, Covington exercised that authority by making “the ultimate

decisions and provid[ing] the false grounds and conclusions that caused them.” But under

city law and departmental policy, a mid-level Sergeant like Covington may make a

disciplinary recommendation, but only the Chief of Police and City Manager have the

authority to terminate an employee.

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§ 1983”); Culbertson, 790 F.3d at 627 (dismissing retaliation claim because

liability for individual defendants was not clearly established). Continuing to

resolve the question at the clearly established step means the law will never

get established. Pearson, 555 U.S. at 236 (“[T]he Saucier Court was certainly

correct in noting that the two-step procedure promotes the development of

constitutional precedent.”). Addressing the first-step liability question is

“especially valuable with respect to questions that do not frequently arise in

cases in which a qualified immunity defense is unavailable.” Id. That is the

case here. First Amendment retaliation claims do not arise in criminal

litigation (as, for example, a Fourth Amendment claim often would), and this

issue of individual liability would not arise in other civil suits, such as those

against a municipality, in which qualified immunity does not apply. Because

this is a question unique to section 1983 First Amendment claims brought

against individual defendants, we conclude that clarifying the liability

question is important to provide guidance to public employees who may find

themselves on either side of the “v” in these lawsuits that can raise important

issues of whether employees who challenge corrupt governmental practices are

protected in exercising First Amendment rights.

In our recent decision resolving this question on “clearly established”

grounds, we recognized the tension in our caselaw on whether only final

decisionmakers can be individually liable for First Amendment retaliation

claims. Culbertson, 790 F.3d at 627. Culbertson noted that our first case to

address the issue “required only that a plaintiff show ‘an affirmative causal

link’ between a school principal’s recommendation to reassign an athletic

director and the school district’s decision to do so.” Id. at 626 (quoting Jett v.

Dallas Indep. Sch. Dist., 798 F.2d 748, 758 (5th Cir. 1986), aff’d in part,

remanded in part on other grounds, 491 U.S. 701 (1989)). “In Jett, it did not

matter that the individual defendant had no authority to make the actual

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transfer decision.” Id. As our earliest decision addressing this question, Jett

controls. EEOC v. LHC Group, Inc., 773 F.3d 688, 695 (5th Cir. 2014) (applying

the “rule of orderliness” to identify which case among conflicting decisions

controlled).

Jett also has the virtue of being right. As numerous courts of appeals

have recognized, individual liability for a government official who violates

constitutional rights, including First Amendment ones, turns on traditional

tort principles of “but-for” causation. See, e.g., Tejada-Batista v. Morales, 424

F.3d 97, 101–02 (1st Cir. 2005) (Boudin, J.). If an individual defendant’s

animus against a coworker’s exercise of First Amendment rights is a link in

the causal chain that leads to a plaintiff’s firing, the individual may be liable

even if she is not the final decisionmaker. See, e.g., id. at 102 (affirming jury

verdict against subordinate law enforcement officers whose retaliation led to

plaintiff's discharge and joining three other circuits in finding that a “properly

motivated” decision-maker does not “insulate[] the ill-motivated subordinate .

. . if the [subordinate] is a but-for cause of the firing”); Maestas v. Segura, 416

F.3d 1182, 1191 (10th Cir. 2005) (“While Segura made the final decision to

transfer Plaintiffs, Pratt, though a subordinate, might be liable if he possessed

a retaliatory motive which set in motion the events that ultimately led to

Plaintiffs’ transfers.”); Strahan v. Kirkland, 287 F.3d 821, 826 (9th Cir. 2002)

(“Even if the ultimate decision-maker can establish that the adverse action was

not in retaliation for protected conduct, a subordinate with a retaliatory motive

can be liable ‘if an improper motive sets in motion the events that lead to

termination that would not otherwise occur.’”); Darnell v. Ford, 903 F.2d 556,

561–62 (8th Cir. 1990) (affirming jury verdict against defendant, a subordinate

Patrol Major who investigated the conduct of and recommended the demotion

of a captain, for violating the captain’s First Amendment right of

association); Saye v. St. Vrain Valley Sch. Dist., 785 F.2d 862, 867 (10th Cir.

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1986) (holding that retaliatory animus by school principal against plaintiff’s

protected union activities could be “motivating factor” for plaintiff’s dismissal

even though “none of the school board members who voted not to renew Saye’s

employment were aware of her union involvement”).

In light of Jett and the consensus view of other courts of appeals that

individual liability is just a matter of causation, why did uncertainty develop

in our circuit on this point? Beattie v. Madison County School District, 254

F.3d 595 (5th Cir. 2001), unwittingly planted the seeds of confusion that later

sprouted on this issue. A school secretary brought suit alleging she was fired

for opposing the superintendent’s reelection. Id. at 599. Although she first

sued not just the school district but also the superintendent and principal in

their individual capacity, by the appeal she had abandoned claims against the

individuals. Id. at 601 n.5. So the focus of the appeal was on the question of

municipal liability, which attaches only if final decisionmakers are liable. Id.

at 602 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). The

unconstitutional motives of the principal and superintendent who

recommended the termination were not attributed to the school board that

made the final decision because the board did not know about the plaintiff’s

First Amendment activity. Id. at 603–04.

Not recognizing that Beattie was only confronting Monell liability, a later

case involving individual defendants read Beattie for the principle that “only

final decision-makers may be held liable for First Amendment retaliation

employment discrimination under § 1983.” Johnson v. Louisiana, 369 F.3d

826, 831 (5th Cir. 2004). In reversing a verdict against a supervisor who

retaliated against a subordinate for complaining about sexual harassment,

Johnson ignored Jett’s contrary and precedential position that an individual is

liable for First Amendment retaliation if her unlawful conduct is a link in the

causal chain that resulted in the plaintiff’s firing. Some cases have followed

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Johnson’s categorical view that only final decisionmakers can be liable for First

Amendment retaliation. See, e.g., Huggins v. Holmes, 2018 WL 343855, at *7

(W.D. La. Jan. 8, 2018).

Other cases following Beattie and Johnson have imposed a causation

standard that is more stringent than Jett’s “but-for” standard for nonfinal

decisionmakers. See, e.g., DePree v. Saunders, 588 F.3d 282, 288 (5th Cir.

2009); Whiting v. Univ. of S. Miss., 451 F.3d 339, 351 (5th Cir. 2006). They

have done so because they, like Sims, have mistakenly characterized the

question as whether the nondecisionmaker can be liable under a cat’s paw

theory of imputed liability. That turns cat’s paw liability on its head, and is

another example of relying on the law of employer liability for a question of

employee liability. As “cat’s paw” liability arose under Title VII in which only

employers can be liable, it is not about the liability of individual employees.

See Staub v. Proctor Hosp., 562 U.S. 411, 415–16 (2011); Shager v. Upjohn Co.,

913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.). It is instead about whether the

employers who are subject to Title VII liability can be held liable by imputing

to those entities the unlawful motives of employees who are not final

decisionmakers. Staub, 562 U.S. at 418. Unlike Title VII, section 1983 applies

to individuals. So the question is not whether the metaphorical paw (the City)

is liable for carrying out the ill-motivated actions of the metaphorical cat

(Covington); it is whether the cat itself can be liable for having unlawful

motives that caused the firing. That individual liability turns on traditional

tort principles of whether the particular act was a “causal link” in the

termination. Jett, 798 F.2d at 758; Maestas, 416 F.3d at 1191 (characterizing

the question as whether the defendant “set in motion” the termination).

Beattie, Johnson, and subsequent cases thus inadvertently created the

uncertainty we have recognized in this area. We now provide the overdue

clarification. Because it is at odds with our earlier holding in Jett, Johnson’s

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absolute bar on First Amendment liability for those who are not final

decisionmakers is not binding. Nor are the imputation principles of cat’s paw

liability applicable to an effort to hold a nondecisionmaker liable. Jett’s “causal

link” standard sets the causation requirement for a suit against an individual

defendant with retaliatory motives who does not make the final employment

decision.

Although today’s decision clarifying that Jett controls means the law

will no longer be “unsettled” in this area, Culbertson, 790 F.3d at 627, it

provides no recourse to Sims. That is because of the second part of the qualified

immunity inquiry, which requires a plaintiff to show that any violation of

rights was clearly established at the time the conduct occurred. 4 When Sims

was terminated in July 2012 the inconsistency in our law on whether First

Amendment liability can attach to a public official who did not make the final

employment decision had not been resolved. Indeed, three years after that

Culbertson recognized the tension in affirming a grant of summary judgment

on qualified immunity grounds in favor of a defendant who made a

recommendation to fire the plaintiff but did not have the authority to make the

ultimate decision. Id. at 608. If judges have mixed up principles of individual

and municipal liability in this area and failed to recognize Jett as the

controlling decision, law enforcement officials should not be expected to have a

more nuanced understanding of section 1983 law. We therefore agree with the

district court’s holding that Sims’s claim is foreclosed by Culbertson on

immunity grounds.

4 To ultimately establish a First Amendment violation Sims would also have to

overcome other issues Covington raises but that the district court did not need to address,

such as whether Sims was speaking as part of his official duties or as a citizen. See Garcetti

v. Ceballos, 547 U.S. 410 (2006). We do not address Garcetti because we affirm the grant of

summary judgment on the ground the district court relied on: it was not clearly established

in 2012 that a non-final decisionmaker could be liable for First Amendment retaliation.

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B

Sims next challenges the district court’s dismissal of his due process

claims against Covington.

1

To establish a Fourteenth Amendment procedural due process claim, “a

plaintiff must first identify a protected life, liberty or property interest and

then prove that governmental action resulted in deprivation of that interest.”

Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). Sims alleges that

Covington violated his property interest in continued employment by not

following the procedures set forth in Texas Government Code § 614.023(c)

before terminating him. 5 The district court concluded this claim was foreclosed

by Stem v. Gomez, 813 F.3d 205 (5th Cir. 2016), which held that

section 614.023(c) does not create a property interest in continued employment

that implicates the Due Process Clause. The court further concluded that

“even if Sims could distinguish Stem, which he [could not],” the Texas Courts

of Appeals were split over whether the state statute creates a property interest;

therefore, the property right was not clearly established when Sims was fired

in 2012, and Covington was entitled to qualified immunity.

Sims argues that under section 614.023(c) he should not have been

terminated for alleged misconduct without notice, an investigation, and a

finding of evidence proving the alleged misconduct. In Stem, we interpreted

section 614.023(c) as a way to “assure[] that an officer against whom a

complaint is filed understands the allegations against him and receives a

5 Texas Government Code § 614.023(c) sets out procedures to be followed when a

complaint is made against a law enforcement officer: “In addition to [providing the officer

with a signed complaint within a reasonable time after the complaint is filed], the officer or

employee may not be indefinitely suspended or terminated from employment based on the

subject matter of the complaint unless (1) the complaint is investigated; and (2) there is

evidence to prove the allegation of misconduct.” TEX. GOV’T CODE § 614.023(c).

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meaningful investigation into the accuracy of those allegations,” but

conclusively held that the statute alone does not create a constitutionally-

recognized property interest in continued employment. 813 F.3d at 213. In

reaching our decision, we noted that there was no authoritative decision from

the Supreme Court of Texas, that there was a split among the state’s

intermediate courts, and that the legislation was not aimed at abrogating the

right to terminate at will. Id.

Sims further asserts that Stem does not foreclose his claim because,

unlike in that case, the MPD fully incorporated the provisions of

section 614.023(c) into its policies. 6 Stem acknowledged that section 614.023(c)

can confer a property interest if an employer expressly adopts the statute into

its policies. Id. at 211 (citing Turner v. Perry, 278 S.W.3d 806, 822 & n.21 (Tex.

App. 2009)). While MPD’s policies appear to include parallel processes for

investigating a complaint against an officer, they do not “expressly adopt[]”

section 614.023(c). Turner, 278 S.W.3d at 822 & n.21. Accordingly, MPD’s

policies do not confer a property interest through incorporation. Thus, we

agree that Sims’s argument is foreclosed by Stem, and we affirm the district

court’s holding.

2

When a person’s good name, reputation, honor, or integrity is at stake

due to an action by the government, he is entitled to notice and an opportunity

to be heard. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). “A

constitutionally protected liberty interest is implicated only if an employee is

discharged in a manner that creates a false and defamatory impression about

him and thus stigmatizes him and forecloses him from other employment

6 Sims points to two specific policies. General Order No. 300-04 “set[s] forth

procedures for receiving, investigating, and classifying complaints against employees of the

police department.” General Order No. 300-07 “provide[s] guidelines for Internal

Investigations.”

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opportunities.” White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981). A

deprivation of liberty claim lies against the government employer, not a

government employee or official. Harris v. City of Balch Springs, 9 F. Supp.

3d 690, 700 (N.D. Tex. 2014) (citing Rosenstein v. City of Dallas, 876 F.2d 392,

395 (5th Cir.1989), aff’d in relevant part, 901 F.2d 61 (5th Cir.1990) (en banc)).

Sims’s claim against Covington is thus barred by qualified immunity

because he has failed to cite to any Supreme Court or Fifth Circuit precedent

clearly establishing that a mid-level supervisor violates an employee’s due

process rights when the municipal department he works for does not grant a

name-clearing hearing. In other words, Sims has not shown that Covington

had the legal authority to grant a name-clearing hearing in the first place, let

alone that Covington played a role in depriving him of such a hearing. 7 See

Caleb v. Grier, 598 F. App’x 227, 239 (5th Cir. 2015) (finding that the plaintiff

failed to state a claim where she alleged no facts indicating that the defendants

“had any ability, authority, or even influence to deny her access to a name-

clearing hearing, much less that they did so.”). See also McDonald v. Wise, 769

F.3d 1202, 1215–16 (10th Cir. 2014) (citing Rosenstein, 876 F.2d at 397)

(finding defendant was in no position to provide a name-clearing hearing and

was therefore entitled to qualified immunity). Accordingly, we affirm the

district court’s judgment on this issue.

7 Additionally, we note that this Circuit applies a seven-element “stigma-plus-

infringement” test to determine whether § 1983 may provide a remedy for the deprivation of

liberty without opportunity to clear one’s name. Bledsoe v. City of Horn Lake, 449 F.3d 650,

653 (5th Cir. 2006). Of particular relevance, one factor requires that an employee

affirmatively request a name-clearing hearing. Id.; see also Rosenstein v. City of Dallas, Tex.,

901 F.2d 61, 61 (5th Cir. 1990) (en banc). Sims argues that he made his desire to clear his

name plain by rebutting each of Covington’s reasons for disciplining him. However, as Sims

concedes in his briefs on appeal, he did not ask Covington for a hearing, and his argument

therefore fails under our stigma-plus-infringement test. Rosenstein, 901 F.2d at 61.

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3

Sims next argues that Covington violated his protected liberty interest

“in being free from criminal indictment and arrest based on falsified and

fabricated evidence.” The district court declined to consider this claim. It

concluded that “to the extent Sims’s summary judgment response asserts a

malicious-prosecution claim and a liberty-deprivation claim against

Covington, based on his involvement in Sims’s prosecution for ‘computer

security breach,’” he failed to raise those theories in his first amended

complaint and could not do so for the first time on summary judgment.

Sims contends that his first amended complaint adequately pleaded this

claim, citing the following language: “Defendant Jeffery Covington is liable for

civilly conspiring, while acting under color of law, to retaliate against Plaintiff

and/or deprive Plaintiff of constitutionally protected interests without due

process of law, and which have caused injuries and resulted in damages to the

Plaintiff.” We disagree. A properly pleaded complaint must give “fair notice

of what the claim is and the grounds upon which it rests.” Ashcroft v. Iqbal,

556 U.S. 662, 698–99 (2009). The language Sims points to offers no such notice.

Because we conclude that Sims failed to raise this claim in his complaint, we

affirm. See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th

Cir. 2005) (a claim that was not raised in the complaint, but is raised only in

response to a motion for summary judgment, is not properly before the court).

C

The district court concluded that because Sims failed to show a violation

of his clearly established constitutional rights, his underlying claim that

Covington conspired with others to violate his constitutional rights necessarily

failed. That is ordinarily the case. Mowbray v. Cameron Cty., 274 F.3d 269,

279 (5th Cir. 2001). But Sims suggests for the first time on appeal that the

“decisionmaker” issue that barred his First Amendment claim against

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Covington would not be a problem for the conspiracy claim. Presumably the

idea is that Covington could have conspired with the final decisionmaker to

retaliate. Sims, however, did not present this theory in either his district court

pleadings or response to summary judgment. We will not reverse a district

court ruling based on a claim not presented to that court. Celanese Corp. v.

Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010). We therefore

affirm the grant of summary judgment on the conspiracy claim.

IV

Lastly, Sims challenges the district court’s grant of summary judgment

for the City on the grounds of res judicata. Under the Full Faith and Credit

Clause of the United States Constitution, “[a] final judgment in one state, if

rendered by a court with adjudicatory authority over the subject matter and

persons governed by the judgment, qualifies for recognition throughout the

land.” Baker v. General Motors Corp., 522 U.S. 222, 223 (1998). “A federal

court must give to a state-court judgment the same preclusive effect as would

be given that judgment under the law of the State in which the judgment was

rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

Texas’s claim preclusion law requires “(1) a prior final judgment on the merits

by a court of competent jurisdiction; (2) identity of parties or those in privity

with them; and (3) a second action based on the same claims as were raised or

could have been raised in the first action.” Norris v. Hearst Trust, 500 F.3d

454, 460–61 (5th Cir. 2007) (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d

644, 652 (Tex. 1996)). If all three elements are satisfied, claims that have been

finally adjudicated, or claims that arise out of the same occurrence and that

could have been litigated, are precluded by res judicata. Amstadt, 919 S.W.2d

at 652.

Sims initially sued the City in state court under the Texas Whistleblower

Act, TEX. GOV’T CODE § 554.001, but the state court dismissed his claim with

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No. 16-20440

prejudice on the basis of governmental immunity. The district court granted

the City’s motion for summary judgment, concluding that, pursuant to Texas

law, Sims’s state court action against the City barred his claims in federal

court. We agree. We have held that, under Texas law, a grant of a plea to the

jurisdiction is a dismissal on the merits for purpose of res judicata. Klein v.

Walker, No. 17-40052, 2017 WL 3879795, at *2 (5th Cir. Sept. 5, 2017) (citing

Flores v. Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 775 n.3 (5th Cir.

1984)). The first element of Texas’s preclusion law is therefore satisfied. The

second element is also satisfied because Sims sued the City in both state court

and federal court.

As to the third element, Sims argues that, under Texas law, a decision

on the merits by a court of competent jurisdiction does not preclude him from

bringing different claims in federal court. He further argues that he could not

have raised his federal claims in state court. His arguments are unavailing.

Under Texas law, actions may arise out of the same transaction or occurrence

depending on “their relatedness in time, space, origin or motivation, and

whether, taken together, they form a convenient unit for trial purposes.”

Weaver v. Tex. Capital Bank, 660 F.3d 900, 907 (5th Cir. 2011) (quoting Getty

Oil Co. v. Ins. Co. of N.A., 845 S.W.2d 794, 799 (Tex. 1992)). Different theories

of recovery based on the same operative facts do not generate different causes

of action. Hogue v. Royse City, 939 F.2d 1249, 1253–54 (5th Cir. 1991). Sims

originally sued the City in state court, alleging a violation of the Texas

Whistleblower Act based on his termination from the MPD. His state and

federal court actions therefore arose out of the same transaction or

occurrence—his termination from the MPD—and merely advanced different

theories of recovery. Moreover, Sims could have brought his section 1983

claims in state court, but failed to do so. See Home Builders Ass’n Miss. v. City

of Madison, 143 F.3d 1006, 1013 (5th Cir. 1998) (“Federal jurisdiction over §

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1983 is concurrent, not exclusive.”). Therefore, the third element of Texas’s

claim preclusion law is satisfied, and we affirm the district court’s judgment.

***

For these reasons, we conclude that Covington was entitled to qualified

immunity on all properly pleaded claims against him, and that Sims’s claims

against the City were barred by res judicata. Accordingly, we AFFIRM.

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