Brandie Cunningham v. Wood County

Case: 20-40082 Document: 00515679214 Page: 1 Date Filed: 12/18/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

No. 20-40082

FILED

December 18, 2020

Lyle W. Cayce

Brandie Cunningham, Clerk

Plaintiff—Appellee,

versus

Thomas Castloo,

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:19-CV-18

Before Jolly, Southwick, and Wilson, Circuit Judges.

E. Grady Jolly, Circuit Judge:

This interlocutory appeal presents the question whether Sheriff

Thomas Castloo enjoys qualified immunity from Brandie Cunningham’s 42

U.S.C. § 1983 claims premised on the denial of a name-clearing hearing in

violation of procedural due process. The district court answered no. Citing

factual disputes, and holding that Cunningham’s right to a name-clearing

hearing was clearly established, the district court denied qualified immunity

on summary judgment. The district court’s holding was error. Because “the

violative nature” of Sheriff Castloo’s “particular conduct” was not clearly

established, Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam), Sheriff

Castloo may claim qualified immunity. Accordingly, we REVERSE the

denial of qualified immunity and REMAND for further proceedings not

inconsistent with this opinion.

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I

As laid out above, Sheriff Castloo appeals a summary judgment

denying him qualified immunity from this lawsuit. In our review, then, we

take Cunningham’s version of the facts as true. See Kinney v. Weaver, 367

F.3d 337, 347–48 (5th Cir. 2004) (en banc).

Brandie Cunningham joined the Wood County Sheriff’s Office as a

deputy in April 2016. Before that, she worked at the Hopkins County Jail.

And before that, she worked as a mental health specialist in the military. Her

military duties included reviewing discharge forms, known as DD214s. 1

During Cunningham’s stint at the Hopkins County Jail, one of her

superiors had asked her to review the DD214 of a jailer named David McGee.

Cunningham concluded, based on her military experience, that the DD214

was “altered.”

Like Cunningham, McGee moved from Hopkins County to Wood

County. By January 2017, he had become a supervisor at the Wood County

Jail. His friend, Thomas Castloo, had taken office as Wood County Sheriff

on January 1. The events that led to this litigation occurred over a one-week

period, beginning on Wednesday, January 18.

On Wednesday the 18th, Cunningham approached Tony Crouse, a

Wood County criminal investigator, and asked how she could “go about

filing a federal crime.” She believed that she had an obligation to report that,

in her opinion, McGee’s DD214 had been altered. Crouse told Cunningham

to bring her concerns to Sheriff Castloo.

On Thursday the 19th, Cunningham and Crouse met with Sheriff

Castloo. Cunningham told Sheriff Castloo that she suspected that McGee

had altered his DD214. She did not think she was violating her chain of

1

According to the district court, “[t]he DD214 is a discharge form used by all

branches of the United States Military and has the same function as the F-5 discharge form

for law enforcement agencies. It indicates whether a servicemember separating from

military service is being released with an honorable, general, or dishonorable discharge.”

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command by bringing her concerns to Crouse and Sheriff Castloo. She spoke

to Crouse first because she knew him from Hopkins County. And she spoke

to Sheriff Castloo next because Crouse “instructed” her to do so and because

she thought that Sheriff Castloo was McGee’s supervisor. After the meeting,

Cunningham told her chain of command what she had reported. She also

told at least one person outside her chain of command—Deputy Justin

Bowring.

On Friday the 20th, Cunningham met with Sheriff Castloo and Chief

Deputy Bobby Sanders. Sheriff Castloo called Cunningham a “liar” and said

that “the only reason” she “was doing this to McGee was because [she]

hated him.” Sheriff Castloo asked her “numerous times” how many people

she had told about her suspicion that McGee had altered his DD214. She

gave Sheriff Castloo the names of everyone she told within her chain of

command. Because Sheriff Castloo was yelling at her, however, she says that

she forgot that she had told Deputy Bowring. Neither Sheriff Castloo nor

Chief Deputy Sanders told Cunningham that she was under investigation for

lying and violating the chain of command.

Later that day, Cunningham remembered that she had told Deputy

Bowring of her suspicion that McGee had altered his DD214. So she sent a

text message to Captain Robert Holland, “asking if [she] could meet with the

[S]heriff because [she] needed to tell him more information.” Captain

Holland remained silent.

That night, Cunningham received a call from Lieutenant William

Burge. Lieutenant Burge told her to report to Sheriff Castloo’s office on

Monday morning. She asked Lieutenant Burge if she “was going to be able

to speak with” Sheriff Castloo. Lieutenant Burge responded that she “was

not allowed to speak with the [S]heriff that day,” but she could speak to him

on Monday morning.

On the morning of Monday the 23rd, Cunningham met with Chief

Deputy Sanders, Lieutenant Burge, and Captain Holland. Thereupon, she

was fired for “improper use of chain of command and lying.” She was not

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told how she had lied or how her “use” of the chain of command was

“improper.” She “ask[ed] to speak with the [S]heriff at that time,” but

“they would not allow [her] to talk to him.” She did not receive a written

notice describing the charges against her, nor was she “allowed” to respond

to the oral charges made against her. When she tried to speak, Chief Deputy

Sanders cut her off, saying, “I don’t need to hear anything further from you

. . . .” 2

The next day, Sheriff Castloo signed Cunningham’s F-5. The F-5 is

filed with the Texas Commission on Law Enforcement and indicates the

nature of an officer’s discharge: honorable, dishonorable, or general. Sheriff

Castloo designated the discharge as “dishonorable,” which is the “only

option” when the employee is “found guilty of either lying or lack of clarity.”

Since Cunningham was dishonorably discharged, she has not found further

work.

Cunningham sued Wood County and Sheriff Castloo—in his

individual and official capacities—in federal court under 42 U.S.C. § 1983.

She alleged that Sheriff Castloo violated, among other rights, her Fourteenth

Amendment right to procedural due process by denying her request for a

name-clearing hearing. Sheriff Castloo claimed qualified immunity.

After discovery, the parties cross-moved for summary judgment. The

district court denied Cunningham’s motion in full and granted Wood County

and Sheriff Castloo’s motion in part, dismissing all but the procedural-due-

process claims against Sheriff Castloo and Wood County. Although Sheriff

Castloo raised a qualified-immunity defense to that claim, the district court

held that Cunningham had “successfully rebutted” it. The district court said

that factual disputes, when resolved in Cunningham’s favor, established a

2

Two days after Cunningham was fired, Texas Rangers arrested McGee for

altering government documents, among other felonies. The arrest was not for altering the

DD214 that Cunningham considered altered.

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procedural-due-process violation and satisfied qualified-immunity’s

constitutional-violation prong. Qualified immunity’s clearly established

prong was met, the district court reasoned, because Wisconsin v.

Constantineau, 400 U.S. 433 (1971), and Bledsoe v. City of Horn Lake, 449 F.3d

650 (5th Cir. 2006), had “placed beyond debate” Cunningham’s “liberty

interest in the opportunity to clear her name of stigmatizing charges.”

Sheriff Castloo timely filed this interlocutory appeal. 3

II

We begin with our jurisdiction and the standard of review. Sheriff

Castloo challenges the denial of qualified immunity on summary judgment.

That denial is immediately appealable under the collateral-order doctrine to

the extent that it turned on an issue of law. Melton v. Phillips, 875 F.3d 256,

261 (5th Cir. 2017) (en banc). We lack jurisdiction to review the genuineness

of the factual disputes the district court identified, but we have jurisdiction

to review their materiality. Id. That means “our review is limited to

determining whether the factual disputes that the district court identified are

material to the application of qualified immunity.” Samples v. Vadzemnieks,

900 F.3d 655, 660 (5th Cir. 2018) (emphasis omitted) (citing Thompson v.

Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001)). We review legal

conclusions, materiality determinations, and the scope of clearly established

law de novo. Amador v. Vasquez, 961 F.3d 721, 727 (5th Cir. 2020) (citations

omitted).

In determining materiality, we take Cunningham’s version of the facts

as true and view those facts through the lens of qualified immunity. See

Samples, 900 F.3d at 660. If Sheriff Castloo would still be entitled to qualified

immunity under this view of the facts, then any disputed facts are not

material, the district court’s denial of summary judgment was improper, and

3

Although the notice of appeal is entitled “Defendants’ Notice of Appeal,” the

body of the document makes clear that only Sheriff Castloo appeals. Wood County is not

a party to this appeal but remains a defendant in the underlying case. The district court

administratively closed that case pending disposition of this interlocutory appeal.

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we must reverse. See Lytle v. Bexar Cnty., 560 F.3d 404, 409 (5th Cir. 2009).

These precepts are clear, though perhaps less so to Cunningham. She

contends that we lack jurisdiction because the district court said that it found

genuine disputes of material fact. Not so. The mere fact that the district

court said that, in its view, material factual disputes preclude summary

judgment does not deprive us of interlocutory appellate jurisdiction. See, e.g.,

Shaboon v. Duncan, 252 F.3d 722, 729 (5th Cir. 2001) (“Although the district

court explicitly stated that material fact issues remain . . . this in itself does

not preclude appellate review.”). We may of course decide whether the

factual disputes the district court said were material are in fact material. See

Melton, 875 F.3d at 261.

Assured of our jurisdiction, we turn to the merits.

III

Sheriff Castloo contends the district court erred in denying him

qualified immunity on summary judgment. We begin with the doctrine of

qualified immunity. We next lay out the underlying substantive law that

dictates whether Sheriff Castloo is entitled to the defense. We last apply the

substantive law and doctrine to the facts of this case.

A

Qualified immunity shields government officials from civil liability in

their individual capacity so long as their conduct “‘does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “protects ‘all but the

plainly incompetent or those who knowingly violate the law.’” Mullenix, 577

U.S. at 12 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Our qualified-immunity inquiry is two-pronged. Garcia v. Blevins, 957

F.3d 596, 600 (5th Cir. 2020). First, we ask whether the facts, viewed in the

light most favorable to the party asserting the injury, show that the official’s

conduct violated a constitutional right. Id. Second, we ask whether the right

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was “clearly established.” Id. We “can analyze the prongs in either order

or resolve the case on a single prong.” Id.

The “clearly established” prong is difficult to satisfy. See Morrow v.

Meachum, 917 F.3d 870, 874 (5th Cir. 2019). A right is “clearly established”

only if it “is sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Mullenix, 577 U.S. at.

11. We must define the right “with specificity.” City of Escondido v. Emmons,

139 S.Ct. 500, 503 (2019) (per curiam) (citation and quotation marks

omitted). A case “directly on point” is not required, but “existing precedent

must have placed the statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In other words, “there must be

adequate authority at a sufficiently high level of specificity to put a reasonable

official on notice that his conduct is definitively unlawful.” Vincent v. City of

Sulphur, 805 F.3d 543, 547 (5th Cir. 2015) (citation omitted). This rule is a

“demanding standard,” Dist. of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)

(citation omitted), and the Supreme Court “repeatedly” has told us “not to

define clearly established law at a high level of generality.” al-Kidd, 563 U.S.

at 742. Ultimately, “[t]he dispositive question is whether the violative nature

of the particular conduct is clearly established.” Mullenix, 577 U.S. at 12

(citation omitted). We undertake that inquiry “in [the] light of the specific

context of the case, not as a broad general proposition.’” Id. (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

When an official raises qualified immunity on summary judgment, as

Sheriff Castloo did here, the plaintiff bears the burden of showing that the

defense does not apply. See Bryant v. Gillem, 965 F.3d 387, 391 (5th Cir.

2020). To meet that burden, the plaintiff must present evidence, viewed in

her favor, satisfying both qualified-immunity prongs by showing that the

defendant (1) violated a constitutional right (2) that was clearly established at

the time of the defendant’s conduct. See id. We turn now to examine

whether Cunningham has made such a showing.

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B

The Fourteenth Amendment is the source of the substantive law that

dictates whether Sheriff Castloo is entitled to qualified immunity. See U.S.

Const. amend. XIV. In Rosenstein v. City of Dallas, we relied on Supreme

Court cases interpreting the Fourteenth Amendment to recognize a

government employee’s procedural-due-process right to a name-clearing

hearing in certain circumstances. 876 F.2d 392, 395 (5th Cir. 1989). We

declared it “beyond any doubt” that “discharge from public employment

under circumstances that put the employee’s reputation, honor[,] or

integrity at stake gives rise to a liberty interest under the Fourteenth

Amendment to a procedural opportunity to clear one’s name.” Id. at 395

(citations omitted). We said that a government employer deprives an

employee of liberty under the Fourteenth Amendment if the “government

employer discharges [the] individual under circumstances that will do special

harm to the individual’s reputation and fails to give that individual an

opportunity to clear his name[.]” Id.

We further confected a seven-element “stigma-plus-infringement”

test to determine whether a government employer violates a discharged

employee’s procedural-due-process rights by denying her request for a name-

clearing hearing. See id. at 395–96; Bledsoe, 449 F.3d at 653. To prevail under

that test, the discharged employee must show that (1) she was discharged;

(2) stigmatizing charges were made against her in connection with the

discharge; (3) the charges were false; (4) she was not provided notice or an

opportunity to be heard pre-discharge; (5) the charges were made public; (6)

she requested a hearing to clear her name; and (7) the employer denied the

request. Bledsoe, 449 F.3d at 653.

C

Thus, against this background of qualified immunity and the

substantive law of the Fourteenth Amendment, we move further to address

the merits of this case. The district court concluded that, on the facts as

viewed most favorably to Cunningham, Sheriff Castloo violated

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Cunningham’s clearly established procedural-due-process right by denying

her request for a name-clearing hearing. The district court said that

Cunningham had a clearly established right to “clear her name of

stigmatizing charges.” Clearly establishing that right, in the district court’s

view, were two decisions: Constantineau, 400 U.S. at 437, and Bledsoe, 449

F.3d at 653. The district court read Constantineau to clearly establish a

government employee’s right to “notice and an opportunity to be heard”

when that employee’s “good name, reputation, honor, or integrity is at stake

because [of] government action[.]” And the district court read Bledsoe to

clearly establish an employee’s “procedural due process right to notice and

an opportunity to clear [her] name” if the employee meets the seven-element

“stigma-plus-infringement” test.

The cited cases, however, do not reflect clearly established law under

the facts presented in this case. Neither Constantineau nor Bledsoe “clearly

prohibit[ed] the [Sheriff’s] conduct in the particular circumstances before

him.” Wesby, 138 S.Ct. at 590.

Constantineau is far afield. 400 U.S. at 434. That case involved a

constitutional challenge to a state law allowing the public posting, without

notice or a hearing, of notices forbidding the sale of alcohol to particular

individuals. Id. at 434–35. Besides articulating general principles of

procedural due process, that case has no application to this one. Id.; see, e.g.,

Vincent, 805 F.3d at 547 (explaining that “abstract or general statements of

legal principle untethered to analogous or near-analogous facts are not

sufficient to establish a right ‘clearly’ in a given context”).

Bledsoe is also unhelpful to Cunningham’s case. 449 F.3d at 651. In

Bledsoe, we affirmed a summary judgment dismissing a procedural-due-

process claim premised on the alleged denial of a request for a name-clearing

hearing, holding that the plaintiff never requested such a hearing. Id. at 655.

We found no procedural-due-process violation. Id. So Bledsoe—even if it

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were factually similar (and it is not) 4—is incapable of providing “fair notice”

of a procedural-due-process violation. See Morrow, 917 F.3d at 875

(explaining that “clearly established law comes from holdings”).

The district court’s reliance on broad pronouncements from

Constantineau and Bledsoe evinces a methodological error: It defined clearly

established law too generally for any controlling relevance in this case.

Courts must “frame the constitutional question with specificity and

granularity.” Morrow, 917 F.3d at 874–75. The district court did not do that.

Instead, the district court appears to have asked whether, generally, the

procedural-due-process right to a name-clearing hearing was clearly

established. That wording is the wrong way to frame the question, as the

Supreme Court repeatedly has told us. See, e.g., Emmons, 139 S.Ct. at 503–

04 (reversing Ninth Circuit for framing clearly established law too generally);

Kisela v. Hughes, 138 S.Ct. 1148, 1154–55 (2018) (per curiam) (same); Wesby,

138 S.Ct. at 593 (same, D.C. Circuit); White v. Pauly, 137 S.Ct. 548, 552–53

(2017) (per curiam) (same, Tenth Circuit); Mullenix, 577 U.S. at 18–19

(same, this court); Carroll v. Carman, 574 U.S. 13, 20 (2014) (per curiam)

(same, Third Circuit); Reichle v. Howards, 566 U.S. 658, 670 (2012) (same,

Tenth Circuit); al-Kidd, 563 U.S. at 743–44 (same, Ninth Circuit).

“The dispositive question,” we emphasize, is whether “the violative

nature of particular conduct is clearly established.” Mullenix, 577 U.S. at 12.

The answer here is no.

To further explain that compact response, we begin by describing the

4

Bledsoe arose from a city fire chief’s forced resignation after he was accused of

altering time sheets, brandishing a firearm in his office, and falsifying reports. 449 F.3d at

652. Before he was forced to resign, the city’s board of aldermen questioned him during

a meeting; he “largely” denied the alleged misconduct. Id. Days after that meeting, the

board of aldermen convened another—this time, behind closed doors and without the fire

chief. Id. The fire chief found out about the closed-door meeting “shortly before it was to

occur.” Id. Obviously concerned, he “asked the board to either postpone the meeting until

his attorney could be with him or to record the proceedings.” Id. This request, we held,

did not constitute a request for a name-clearing hearing under the “stigma-plus-

infringement” test. Id. at 653.

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particular conduct for which Cunningham seeks to hold Sheriff Castloo

liable. See Wesby, 138 S.Ct. at 590. Sheriff Castloo’s subordinates—Chief

Deputy Sanders, Lieutenant Burge, and Captain Holland—met with

Cunningham and fired her for “improper use of chain of command and

lying,” without further explanation. In response, Cunningham asked “to

speak with the Sheriff,” but Sheriff Castloo’s subordinates did not “allow”

her to do so. Sheriff Castloo was not present at the meeting, and there is no

evidence that he instructed his subordinates to deny Cunningham’s request

“to speak with” him.

Having first described Sheriff Castloo’s particular conduct, as

reflected by the summary-judgment record and viewed in Cunningham’s

favor, we now ask whether the “violative nature,” vis-à-vis the Constitution,

was clearly established. See Mullenix, 577 U.S. at 12.

We conclude that it was not. 5 Specifically, the law was not clearly

established that Cunningham’s request “to speak with” Sheriff Castloo

constituted a request for a name-clearing hearing in the context of our

“stigma-plus-infringement” test, such that denying the request would

amount to a procedural-due-process violation. Our cases are quite unclear,

even confusing, on what constitutes a request for a name-clearing hearing.

Compare Bledsoe, 449 F.3d at 653–54 with Rosenstein, 876 F.2d at 396. What

is clear, however, is that none of our cases—and certainly none from the

Supreme Court—holds that an employee requests a name-clearing hearing,

triggering procedural-due-process protections, when she asks only “to speak

with” her boss in the context of her discharge. Of importance, granting

5

Like the district court, Cunningham offers only general statements of legal

principle, unmoored from the facts of this case, in her attempt to satisfy the clearly

established law requirement. None of the cases she cites speaks to the specific and

dispositive question we decide today, i.e., whether it was clearly established, at the time of

Sheriff Castloo’s conduct, that a public official violates a discharged employee’s

procedural-due-process right when one of the public official’s subordinates, acting without

instruction from the official and outside the official’s presence, denies the discharged

employee’s request “to speak with” the official.

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Cunningham’s request “to speak with” Sheriff Castloo would not have

provided Cunningham a “public forum” of any sort; it would have resulted

only in a private audience with Sheriff Castloo. See Bledsoe, 449 F.3d at 654.

That fact alone distinguishes this case from Rosenstein, in which case “[t]he

appeals procedure would [have] provide[d] the officer ‘with a public forum

to clear his name before the governing body that discharged him.’” Id.

(quoting Rosenstein, 876 F.2d at 396).

All told, Cunningham has failed to cite “adequate authority at a

sufficiently high level of specificity” to put Sheriff Castloo “on notice that

his conduct is definitively unlawful.” Vincent, 805 F.3d at 547 (citing Morgan

v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc)). She therefore failed

to satisfy her burden of defeating Sheriff Castloo’s claim of qualified

immunity. Sheriff Castloo is entitled to qualified immunity, and the district

court erred in denying that defense.

IV

We sum up. In this opinion, we have fully accepted Cunningham’s

version of the summary-judgment record as true. We have held that, even

under this view of the record, Sheriff Castloo is entitled to qualified

immunity. The law was not clearly established that Sheriff Castloo’s

particular conduct violated Cunningham’s procedural-due-process right to a

name-clearing hearing. Because the alleged violative nature of Sheriff

Castloo’s conduct was not clearly established as unconstitutional, we

REVERSE the district court’s denial of qualified immunity and REMAND

the case to the district court for further proceedings not inconsistent with this

opinion.

REVERSED AND REMANDED.

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