Norvis Harmon v. Dallas County, Texas

Case: 18-10353 Document: 00515005995 Page: 1 Date Filed: 06/21/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10353 United States Court of Appeals

Fifth Circuit

FILED

June 21, 2019

NORVIS HARMON,

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

DALLAS COUNTY, TEXAS; DERICK EVANS,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before REAVLEY, ELROD, and WILLETT, Circuit Judges.

PER CURIAM:

This case is about an employment relationship that did not turn out well.

Norvis Harmon, a former deputy constable, brought this action under 42

U.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He

alleges the defendants violated his First Amendment rights when he was

terminated for reporting the illegal acts of Evans and others to law-

enforcement authorities. Harmon additionally alleges the defendants denied

him equal protection of the law in refusing to hear his grievance.

This is Harmon’s second lawsuit based on these facts, as he previously

filed a state-court lawsuit against Dallas County aggrieving the circumstances

of his termination. He did not enjoy a favorable judgment in that suit.

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The district court below disposed of Harmon’s claims through a series of

summary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s

claims against Dallas County as barred by res judicata, 2 and dismissed

Harmon’s claims against Evans in his individual capacity on the basis of

qualified immunity. 3 For the reasons stated herein, we AFFIRM.

I.

Harmon is a former deputy constable in Precinct 1 of the Dallas County

Constable’s Office. During his employment, Harmon became aware that Evans

and his other superiors were up to some not-so-good things, to wit: (1) requiring

deputies to work for Evans’s political allies without pay; (2) requiring deputies

to donate time and money to Evans’s re-election campaign; (3) illegally setting

quotas for writing traffic citations; and (4) requiring deputies to tow citizens’

vehicles after traffic stops, and to do so with a certain towing company with

whom Evans shared a close relationship.

In November 2009, Harmon reported these activities to Defenbaugh &

Associates, an investigative firm hired by the Dallas County Commissioner’s

Court. Harmon alleges he made similar reports to the Dallas County Human

Resources Department, the Dallas County District Attorney, and the Federal

Bureau of Investigation.

Things then went downhill. Word spread that certain deputies were

speaking out, prompting Evans to call a meeting in which he made couched

threats that he would retaliate against those who did. In March 2010, the

Dallas Morning News published an article describing the results of the

1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.

2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,

2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.

Supp. 3d 814 (N.D. Tex. 2017).

2 Harmon I, 248 F. Supp. 3d at 822.

3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.

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investigation and confirmed that certain deputies had spoken out against

Evans’s illegal activities. 4 Although the article did not identify any of the

deputies by name, a separate investigative report did. 5

Evans later initiated an administrative investigation into Harmon and,

finding at least one discrepancy in Harmon’s GPS reports, terminated him

(from employment) on June 3, 2011. Harmon tried to grieve his termination to

Evans, as his department head, and to Dallas County. These attempts were

not successful, because deputy constables hired after August 19, 2003 are

excluded from the Dallas County Civil Service Commission’s grievance system

procedure. 6 As Harmon was hired in 2008, he did not have grievance rights.

So, Harmon turned to litigation.

Harmon first sued Dallas County in Texas state court. He asserted

claims for alleged violations of the Texas Whistleblower Act and Texas

Government Code § 617.005, 7 and an equal protection violation under the

Texas Constitution. In addition, Harmon sought injunctive relief and

declaratory relief in connection with his equal protection claim, and a

4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have

Broken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS

(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-

Constable-Derick-9350.

5 Evans was eventually convicted for engaging in organized criminal activity. The

conviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,

at *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).

6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A

employee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A

classified employees are excluded from coverage afforded in employment procedures relating

to job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right

of appeal, and grievance system procedures of this Code.”).

7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public

employees to present grievances concerning their wages, hours of employment, or conditions

of work either individually or through a representative that does not claim the right to

strike.”).

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declaration that Evans’s actions were “illegal and void.” Evans was not a party

to the state-court action.

The County moved to dismiss Harmon’s suit for lack of subject-matter

jurisdiction, arguing that governmental immunity barred Harmon’s

constitutional claims, as well as those brought under the Whistleblower Act

and Local Government Code. The County also argued that Harmon’s requests

for injunctive and declaratory relief embraced ultra vires acts that could only

be asserted against Evans, who was not a party to the suit. The court agreed

with the County, dismissed Harmon’s claims with prejudice, and granted

Harmon the opportunity to replead his claims for declaratory and injunctive

relief. Harmon did not, and the state court eventually entered final judgment

disposing of all claims and parties on November 7, 2013.

Harmon brought his second suit in federal court, asserting two claims

under § 1983: (1) a retaliation claim under the First Amendment, and (2) an

equal protection claim based on the denial of his right to petition the

government. In addition to suing the County (again), Harmon also sued Evans

in both his individual and official capacities. Evans asserted the defense of

qualified immunity, so the district court ordered Harmon to file a Rule 7(a)

reply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the

pleadings based on his qualified-immunity defense, and both defendants later

filed a limited motion for summary judgment asserting that res judicata barred

Harmon’s federal suit. 8

The district court held that res judicata barred Harmon’s suit as to the

County and Evans in his official capacity, and then granted Evans’s Rule 12(c)

motion on the basis of qualified immunity as to Harmon’s First Amendment

8 We have simplified the motion practice before the district court.

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retaliation claim. 9 Harmon, however—and to the apparent surprise of the

district court and the parties—argued that he still had lingering claims under

the First Amendment’s Petition Clause. The district court granted Evans the

opportunity to file a dispositive motion on those claims, 10 and then granted his

motion when he did. 11 Harmon timely appealed.

II.

Harmon brings three issues on appeal. He first argues that res judicata

does not apply to this case. Next, he argues the district court erred in granting

Evans qualified immunity on his First Amendment retaliation claim because

his right to engage in the speech at issue was clearly established at the time of

his termination. Finally, Harmon contends the district court was wrong to

grant Evans qualified immunity on his claims under the First Amendment’s

Petition Clause. We address each in turn.

III.

We apply Texas law to determine the res judicata effect of a Texas

judgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d

632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th

Cir. 2016). Under Texas law, res judicata 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.” Amstadt v. U.S.

Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we

9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.

10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion

regarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four

years. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding

this claim by April 28, 2017.”).

11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on

the basis of qualified immunity).

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conclude that res judicata bars Harmon’s claims against the County and Evans

in his official capacity, but not as to Evans in his individual capacity.

The first element is met because, under Texas law, a dismissal based on

governmental immunity constitutes a final judgment on the merits for

purposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644

(5th Cir. 2018) (“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, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on

immunity grounds under Texas law is a dismissal on the merits for purposes

of res judicata.”). As mentioned, the state court dismissed Harmon’s claims

with prejudice based on the County’s assertion that it was entitled to

governmental immunity and later entered a final judgment disposing of all

claims and parties. This element is met.

The third element presents an easy solve under Texas’s “transactional”

approach. “Under this approach, a judgment in an earlier suit ‘precludes a

second action by the parties and their privies not only on matters actually

litigated, but also on causes of action or defenses which arise out of the same

subject matter and which might have been litigated in the first suit.’” Getty Oil

Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In

this case, both of Harmon’s suits arise from the same operative facts and

subject matter—Harmon’s allegedly unlawful termination and his inability to

file a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,

nothing prevented Harmon from bringing his federal claims in state court. See

id. We conclude this element is also met.

Stepping back, the second element—privity—presents a closer question,

but our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.

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1997) supplies the answer. 12 Warnock stands for the basic proposition that

privity does not exist between a governmental entity and an employee later

sued in his or her individual capacity. See id. at 778. The plaintiff in Warnock

alleged that two state district court judges retaliated against her for

whistleblowing. Although her initial state-court suit against the county was

unsuccessful, the plaintiff later filed suit in federal court against the county

and the judges in their official and individual capacities. Id. at 777. The district

court concluded that res judicata barred suit against the judges in both

capacities, but we disagreed, holding that privity was lacking “between the

county and judges in their individual capacities.” Id. at 778. We cited to Conner

v. Reinhard for support, in which the Seventh Circuit explained that “a city

official sued in his official capacity is generally in privity with the

municipality,” but that “[a] government official sued in his personal capacity,

however, presents a different case.” 847 F.2d 394–95 (7th Cir. 1988). The

reasons for drawing this distinction are legion:

If the plaintiff prevails against the official, the official must satisfy

the judgment out of his own pocket, rather than having the

government entity pay the damages. See Kentucky v. Graham, 473

U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In

addition, different legal theories may be necessary to prove

liability in a personal-capacity, as opposed to an official-capacity,

case. Also, different defenses are available to a defendant who is

sued in his personal capacity. Therefore, courts do not generally

consider an official sued in his personal capacity as being in privity

with the government.

Id. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.

Miller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships

between a government and its officials justify preclusion only as to litigation

12 There is no question this element is satisfied as to the County, as it was a party in

the prior suit.

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undertaken in an official capacity.”). 13 To that end, district courts in this circuit

have applied Warnock to circumstances analogous to those at hand. See Benson

v. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.

Mar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look

‘pragmatically’ at the privity issue by deciding whether the parties are

‘sufficiently close.’ But Warnock makes clear that defendants sued in their

individual capacities are not ‘sufficiently close’ to their public employers for the

logical reason that they both have different defenses.”). Thus, res judicata does

not bar Harmon’s individual-capacity claims against Evans.

But we agree with the district court that res judicata bars any official-

capacity claims against Evans. An official-capacity claim, after all, is

essentially a claim against the County. See Turner v. Houma Mun. Fire &

Police Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when

“a defendant government official is sued in his individual and official capacity,

and the city or state is also sued,” the “official-capacity claims and the claims

against the governmental entity essentially merge”); Olibas v. Dodson, 593 F.

App’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims

against a municipal official in his official capacity are claims against the

county. . . . Therefore, we need not consider the County separate from the

Sheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x

767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars

Harmon’s claims against the County, it also bars Harmon’s official-capacity

claims against Evans. However, because res judicata does not bar Harmon’s

individual-capacity claims, we proceed, as did the district court, to the merits.

13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists

between the agency and Defendant Wright, who is sued in his official capacity; but privity

does not exist between the agency and the other three Defendants, who are sued in their

individual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment

against a government does not bind its officials sued in their personal capacities.”).

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IV.

Harmon alleges he was terminated in retaliation for engaging in

protected speech under the First Amendment. Evans, in a Rule 12(c) motion,

asserted the defense of qualified immunity. After ordering supplemental

briefing on this point, the district court held that the law regarding Harmon’s

speech was not clearly established at the time of his termination and thus

Evans was entitled to qualified immunity on Harmon’s retaliation claim. 14

We review de novo a district court’s ruling on a Rule 12(c) motion for

judgment on the pleadings asserting qualified immunity. Johnson v. Halstead,

916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines

whether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”

Id. (citation omitted). “When the defendant asserts qualified immunity, the

court can order the plaintiff to submit a reply, refuting the immunity claim

‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be

tailored to the assertion of qualified immunity and fairly engage its

allegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.

1995)).

14 This case was originally before then-Chief Judge Solis, who denied Evans’s

qualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,

at *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would

have understood such retaliation to be in violation of Harmon’s statutory or constitutional

rights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte

revisited this issue. Judge Lindsay vacated that prior order, concluding that the law

regarding Harmon’s speech was not clearly established at the time of his termination.

Because the denial of qualified immunity is an interlocutory order, the court was free to

revisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool

Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary

judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision

for any reason it deems sufficient, even in the absence of new evidence or an intervening

change in or clarification of the substantive law.”), abrogated on other grounds, Little v.

Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).

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“To evaluate whether a government official is entitled to qualified

immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed

facts and the disputed facts, accepting the plaintiffs’ version of the disputed

facts as true, constitute a violation of a constitutional right, and (2) whether

the defendant’s conduct was objectively reasonable in light of clearly

established law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)

(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).

“We have discretion to address either prong first without necessarily

addressing the other.” Id.

To establish a claim for retaliation under the First Amendment, a

plaintiff must show, inter alia, that he “spoke as a citizen on a matter of public

concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,

845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption

undoubtedly constitutes speech on a matter of public concern, 15 Garcetti

instructs to “first decide whether the plaintiff was speaking as a citizen

disassociated with his public duties, or whether the plaintiff was speaking in

furtherance of the duties of his or her public employment.” Howell v. Town of

Ball, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in

speech pursuant to their official duties, they “are not speaking as citizens for

First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,

the Supreme Court “emphasized that ‘[t]he critical question under Garcetti is

whether the speech at issue is itself ordinarily within the scope of an

15 See Lane v. Franks, 573 U.S. 228, 541 (2014) (“The content of Lane’s testimony—

corruption in a public program and misuse of state funds—obviously involves a matter of

significant public concern”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency

and misconduct is a matter of considerable significance”); Markos v. City of Atlanta, Tex., 364

F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about

alleged corruption in the police department, a subject undoubtedly of public concern.”).

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employee’s duties, not whether it merely concerns those duties.” Id. (quoting

Lane, 573 U.S. at 240).

We applied these principles in Howell v. Town of Ball, which we find

controlling. In Howell, we held that a Louisiana police officer’s confidential

involvement with an FBI-led investigation into the illegal acts of the mayor

and other local officials was not “in furtherance of his ordinary job duties.” 827

F.3d at 524. Although we agreed the police officer’s First Amendment rights

were violated when he was terminated in retaliation for cooperating with the

FBI’s investigation, we ultimately concluded the defendants were entitled to

qualified immunity because, at the time of the officer’s termination, “it was not

clearly established whether his involvement in the FBI investigation was

protected under the First Amendment.” Id. at 525. We explained that:

At the time that Howell was fired, Garcetti’s distinction between

speech made pursuant to official duties and speech made as a

private citizen was relatively new, and this court had not

considered it in the context of an action involving a police officer’s

statements to an outside law enforcement agency, or in the context

of a law enforcement officer’s assistance with an outside agency’s

investigation. Garcetti, by its own admission, did not “articulate a

comprehensive framework for defining the scope of an employee’s

duties in cases where there is room for serious debate.” See 547

U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did

not emphasize that only speech made in furtherance of an

employee’s “ordinary” job duties is not protected until nearly three

years after Howell was discharged.

The lack of the application of Garcetti to similar facts at the time

of Howell’s discharge, coupled with the Supreme Court’s only

recent clarification of Garcetti’s citizen/employee distinction

in Lane, compels us to hold that the Board defendants did not

violate a “clearly established” constitutional right when voting to

fire Howell. We thus affirm the district court’s grant of qualified

immunity to the Board defendants.

Id. 525–26 (some internal citations omitted).

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The parties here essentially agree that Harmon alleges a violation of his

First Amendment rights; indeed, Evans concedes—ultimately to his

advantage, of course—that “the facts in Howell are identical to the speech at

issue in this case.” And Harmon alleges that it was not part of his ordinary

duties as a deputy constable to report the illegal acts of his supervisors to

investigators, the FBI, and other authorities. Even so, Harmon’s termination

occurred just one month prior to the officer’s termination in Howell, where we

held that it was not clearly established whether a law enforcement officer’s

involvement in an investigation with outside law-enforcement enjoyed

protection under the First Amendment. Accordingly, the same result in Howell

must obtain here. 16 We thus agree with the district court that Evans is entitled

to qualified immunity on Harmon’s First Amendment retaliation claim.

V.

Finally, we address Harmon’s claims under the First Amendment’s

Petition Clause, which “protects ‘the right of the people . . . to petition the

Government for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,

564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).

As best we can tell, Harmon attempts to bring two “petition” claims. 17

The first appears to be a straight-up petition claim based on Evans’s refusal to

16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his

argument that the law regarding his speech was clearly protected at the time of his

termination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,

given the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-

established at the time of Harmon’s termination requires us to consider the specific context

of the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define

clearly established law at a high level of generality,’ but rather are to pay close attention to

‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement

officer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so

we follow Howell.

17 Harmon gears much of his Petition Clause arguments towards Dallas County and

its decision to exclude deputy constables hired before August 19, 2003 from its grievance

system. Because we hold that res judicata bars Harmon’s claims against the County and

Evans in his official capacity, we do not address these arguments.

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hear his grievance; that is, Harmon alleges that Evans’s refusal to hear his

grievance violated his “fundamental” right to petition the government.

Harmon’s second claim appears to be an equal-protection variant and is

similarly based upon Evans’s refusal to hear his grievance. We address each in

turn. 18

Harmon’s first theory fails for the very basic reason that his attempted

grievance involved a matter of private concern. Indeed, “[i]f a public employee

petitions as an employee on a matter of purely private concern, the

employee’s First Amendment interest must give way, as it does in speech

cases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,

which is a matter of public concern—is not at issue here; rather, the issue

concerns Harmon’s grievance. By its very nature, however, an employee’s

grievance from termination will not ordinarily constitute a matter of public

concern. See id. (“A petition filed with an employer using an internal grievance

procedure in many cases will not seek to communicate to the public or to

advance a political or social point of view beyond the employment context.”);

Gibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel

disputes and management decisions are rarely a matter of public concern.”).

We think the district court said it well:

There is no evidence that Harmon was using the petition appealing

his employment termination as a platform to publicly air his

concerns about Evans’s conduct. He, instead, was merely using the

petition to appeal the termination of his employment as any

employee, private or public, would do. In other words, the point of

Harmon’s appeal was not to present concerns about Evans’s

conduct but to seek reinstatement of his employment as deputy

constable with the County.

18The district court held that Harmon’s Petition Clause claims were not properly

before the court but nevertheless addressed them on the merits. We limit our analysis here

to the merits.

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Harmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim

here is against Evans in his individual capacity—and thus seeks damages from

him personally—underscores our conviction that Harmon’s attempt to grieve

his termination with Evans constituted but a matter of private concern. See

Gibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—

provides significant support for the conclusion that it was not a matter of public

concern.”). Finding no violation of Harmon’s First Amendment right to

petition, we agree with the district court that Evans was entitled to qualified

immunity on this claim.

To succeed on his equal protection claim, Harmon must show that “two

or more classifications of similarly situated persons were treated differently.”

Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).

Harmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or

a regular practice to not hear grievances of employees, including grievances by

deputy constables.” Thus, Harmon does not allege that Evans treated similarly

situated deputy constables differently; to the contrary, Harmon alleges that

Evans’s regular practice was to refuse grievances all together, and his equal

protection claim fails for that reason. The district court did not err in granting

Evans qualified immunity on this claim.

AFFIRMED.

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