Bolton v. City of Dallas, Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 7, 2008

No. 07-10999 Charles R. Fulbruge III

Clerk

TERRELL BOLTON

Plaintiff - Appellant

v.

CITY OF DALLAS TEXAS; CITY MANAGER TEODORO BENAVIDES, In

His Official Capacity

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

After a remand from this court, Terrell Bolton, former police chief of the

City of Dallas, Texas, again appeals from the district court’s ruling and

judgment that the City of Dallas is not liable, under 42 U.S.C. § 1983, for his

termination by Ted Benavides, the Dallas city manager. Because we agree that,

even though Benavides was the final decisionmaker, his actions in this respect

were not the policy of the City and, as a result, the City is not liable for his

termination of Bolton, we AFFIRM. We also DENY the respective motions of the

parties as moot.

I.

No. 07-10999

In August 2003, Terrell Bolton was terminated as the Chief of Police of

Dallas by Ted Benavides. Bolton filed a 42 U.S.C. § 1983 suit against both

Benavides and the City of Dallas, alleging that his due process rights under the

Fourteenth Amendment to the United States Constitution had been violated by

the termination. Bolton admitted that Benavides had the authority to remove

Bolton from his position as Chief of Police but argued that Benavides did not

have the authority to terminate him from the police department. Bolton relied

on Chapter XII, § 5, of the Dallas City Charter (“the Charter”):

If the chief of the police department . . . was selected to

that position from the ranks of the police department

and is removed from the position on account of

unfitness for the discharge of the duties of the position,

and not for any cause justifying dismissal from the

service, the chief . . . shall be restored to the rank and

grade held prior to appointment to the position, or

reduced to a lower appointive rank.

Bolton initially lost his suit in district court on summary judgment; the district

court found that Bolton, as Chief of Police, had no property interest in further

employment by the City and therefore could not prevail on a due process claim.

A panel of this court disagreed and held that the Charter did give Bolton

a property interest “in continued employment at the rank and grade held before

his appointment to the executive position.” Bolton v. City of Dallas, 472 F.3d

261, 264 (5th Cir. 2006). The panel also concluded, however, that Benavides was

entitled to qualified immunity in his individual capacity because the precedent

governing the case, Muncy v. City of Dallas, 335 F.3d 394 (5th Cir. 2003), did not

clearly proscribe Benavides’s termination of Bolton. Bolton, 472 F.3d at 266.

The panel therefore dismissed Bolton’s claims against Benavides in his

individual capacity and remanded the case for determination of further liability,

if any. Id.

II.

2

No. 07-10999

Back in the district court, Benavides and the City once again moved for

summary judgment. The district court granted the motion. The district court

held that the only remaining claim against Benavides was in his official

capacity, and therefore Bolton’s suit contested only the liability of the City. It

further held that the City of Dallas could not be held responsible for Benavides’s

actions because Benavides had frustrated the policy of the City by terminating

Bolton in violation of Chapter XII, § 5, of the Charter. Bolton filed a motion for

reconsideration that included several arguments not initially raised before the

district court. The judge denied this motion. Bolton appealed both the grant of

summary judgment in favor of Dallas and the denial of his motion for

reconsideration.

III.

On appeal, Bolton argues that the discretion that Benavides had to

terminate personnel makes him a policymaker for the City with respect to the

employment action here. Accordingly, the City is liable for Benavides’s

termination of Bolton. Dallas responds that, although Benavides did have

discretion to make employment decisions without the direct oversight of the city

council, the policies of the City are reflected in the Charter; acts contrary to the

Charter cannot be imputed to the City.1

1

As we noted above, Bolton also appealed from the district court’s denial of his motion

for reconsideration. The district court refused to consider new evidence and arguments that

Bolton presented in that motion and accordingly denied it. Bolton has included some of that

evidence in his brief, prompting Dallas to file a motion to strike those portions of Bolton’s brief.

Bolton does not, however, make any attempt in his brief to argue that the district court made

an error in the denial of the motion for reconsideration. Instead, Bolton addresses the motion

for reconsideration only in his response to the City’s motion to strike. “We deem abandoned

those issues not raised in an appellant's initial brief and we will not consider those issues not

raised in the trial court.” United States v. Ragsdale, 426 F.3d 765, 785 n.9 (5th Cir. 2005).

Moreover, the district court plainly acted within its discretion in refusing to consider the new

evidence—Bolton’s argument that the district court’s summary judgment was sua sponte and

that he therefore had no notice that the evidence was relevant is contradicted by the record.

See Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). In any case, we DENY the

City’s motion to strike—and Bolton’s motion for leave to file a sur-reply—as moot.

3

No. 07-10999

IV.

A.

We review the district court’s grant of summary judgment de novo. Cousin

v. Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact.” FED. R. CIV. P. 56(c). “On

a motion for summary judgment, the court must view the facts in the light most

favorable to the non-moving party and draw all reasonable inferences in its

favor.” Coury v. Moss, 529 F.3d 579, 584 (5th Cir. 2008).

B.

Municipal liability for civil rights violations under § 1983 is based on

causation rather than respondeat superior. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978). The fact that a tortfeasor is an employee or an agent

of a municipality is therefore not sufficient for city liability to attach; the

municipality must cause the constitutional tort, which occurs “when execution

of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the

injury.” Id. at 694.

Bolton does not argue that the City has a written policy or unwritten

custom that has caused him constitutional harm. Instead, he argues that the

single decision and act of Benavides in terminating him constitutes the policy of

the City. It is well-established that a single unconstitutional action by a

municipal actor may give rise to municipal liability if that actor is a final

policymaker. Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005).

Accordingly, this “court’s task is to ‘identify those officials or governmental

bodies who speak with final policymaking authority for the local governmental

actor concerning the action alleged to have caused the particular constitutional

or statutory violation at issue.’” McMillian v. Monroe County, 520 U.S. 781,

4

No. 07-10999

784–85 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

This inquiry is specific to the particular action at issue, see id. at 785, and

depends on an analysis of relevant state and local law, see Jett, 491 U.S. at 737.2

Our analysis must also take into account the difference between final

decisionmaking authority and final policymaking authority, a distinction that

this circuit recognized as fundamental in Jett v. Dallas Independent School

District, 7 F.3d 1241, 1247 (5th Cir. 1993). The distinction between final

decisionmaker and final policymaker has its origin in two Supreme Court

plurality opinions, Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), and City

of St. Louis v. Praprotnik, 485 U.S. 112 (1988). Both opinions concluded that

discretion to exercise a particular function does not necessarily entail final

policymaking authority over that function.3 Pembaur, 475 U.S. at 483–84;

2

“[C]ustom or usage having the force of law” may also be consulted, Jett, 491 U.S. at

737 (internal quotation marks omitted), but Bolton does not base his arguments on these

sources.

3

In a footnote, the Pembaur Court illustrated this distinction:

[F]or example, the County Sheriff may have discretion to hire and

fire employees without also being the county official responsible

for establishing county employment policy. If this were the case,

the Sheriff’s decisions respecting employment would not give rise

to municipal liability, although similar decisions with respect to

law enforcement practices, over which the Sheriff is the official

policymaker, would give rise to municipal liability. Instead, if

county employment policy was set by the Board of County

Commissioners, only that body’s decisions would provide a basis

for county liability. This would be true even if the Board left the

Sheriff discretion to hire and fire employees and the Sheriff

exercised that discretion in an unconstitutional manner; the

decision to act unlawfully would not be a decision of the Board.

However, if the Board delegated its power to establish final

employment policy to the Sheriff, the Sheriff’s decisions would

represent county policy and could give rise to municipal liability.

475 U.S. at 483 n.12. And, as we noted in Jett, 7 F.3d at 1247, this example was revisited in

Praprotnik as a basis for its distinction between a final policymaker and a final decisionmaker.

485 U.S. at 129–30.

5

No. 07-10999

Praprotnik, 485 U.S. at 130. In Jett, we understood the decisionmaking

addressed in Pembaur and Praprotnik to include decisions that were “final.”

7 F.3d at 1247. We noted that neither of the Supreme Court cases made a

“suggestion of any qualification such as ‘initial’ discretion or the decisionmaker’s

action being subject to appeal or the like.” Id. at 1247–48. And, moreover,

Praprotnik states that “[w]hen an official’s discretionary decisions are

constrained by policies not of that official’s making, those policies, rather than

the subordinate’s departures from them, are the act of the municipality.”

Praprotnik, 485 U.S. at 127. We held that this statement “applies even to

individual decisions which are not reviewable.” Jett, 7 F.3d at 1248. Thus, Jett

“eschews the importance of administrative reviewability in distinguishing final

decisionmaking authority from final policymaking authority.” Gelin v. Hous.

Auth. of New Orleans, 456 F.3d 525, 530 (5th Cir. 2006).

In Jett, we also recognized support for this position in a Seventh Circuit

case, Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), and in this circuit’s own

precedents. See Jett, 7 F.3d at 1248. In Auriemma, the Seventh Circuit

assumed that the Chicago Superintendent of Police had final, executive

authority to demote police officers. Auriemma, 957 F.2d at 399. But it

nevertheless held that such authority could not support municipal liability:

If it were enough to point to the agent whose act was

the final one in a particular case, we would have

vicarious liability. Action in the course of one’s duty is

the basis of vicarious liability. That a particular agent

is the apex of a bureaucracy makes the decision “final”

but does not forge a link between “finality” and “policy”.

Id. at 400. And in this circuit, “[w]e took essentially the same approach . . .

where ‘we rejected the line of authority . . . which would permit policy or custom

to be attributed to the city itself by attribution to any and all officers endowed

with final or supervisory power or authority.’” Jett, 7 F.3d at 1248 (quoting

6

No. 07-10999

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per

curiam)) (second alteration in original). The finality of an official’s action does

not therefore automatically lend it the character of a policy.4 See id. at 1246;

Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 382 n.17 (5th Cir. 2007).

Here, where Dallas has a city council and a city manager, the state and

local law show that the city manager is an executive and administrative official

with final decisionmaking authority in certain employment decisions; it does not

show that the Charter or the city council delegated policymaking power to the

city manager. Nor can Bolton otherwise build a case that Benavides had such

power in this instance. Bolton first cites state law:

(a) The city manager shall administer the municipal

business and the governing body of the municipality

shall ensure that the administration is efficient.

4

Gelin does note that “we have found the existence of effective administrative review

to be relevant in certain contexts.” 456 F.3d at 530. The cases cited by Gelin generally confirm

that review procedures can be relevant to showing that an official is not a final policymaker.

See, e.g., Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001) (holding that

a superintendent was not a final policymaker because her decision was subject to review by

the school board); Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir. 1989) (“The

existence of effective review procedures prevents the employees from wielding final

responsibility in the instant case.”). Further, we have since explicitly understood Beattie to

otherwise follow Jett. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 382 n.17 (“This

court in [Beattie] characterized Jett as holding that ‘a superintendent’s transfer of a teacher

to another position might be a final policy decision if that action was unreviewable, even if the

superintendent did not have complete control over the hiring and firing of district personnel.’

‘Might be’ does not mean ‘is,’ and a person is not a policymaker when he makes a decision

simply because that decision is unreviewable.” (quoting Beattie, 254 F.3d at 603)).

Gelin also cites, and Bolton relies on, Brady v. Fort Bend County, 145 F.3d 691 (5th Cir.

1998), one of a number of cases in which we addressed the liability of a Texas county for the

actions of its sheriff. But Brady, and another case in this line cited by Bolton, Bennett v.

Pippin, 74 F.3d 578 (5th Cir. 1996), depend on a premise not present here: the special place

accorded by state statute to Texas sheriffs as the ultimate repository of legal authority in a

given county “not by virtue of delegation by the county’s governing body but, rather, by virtue

of the office to which the sheriff has been elected.” Turner v. Upton County, 915 F.2d 133, 136

(5th Cir. 1990); see also Brady, 145 F.3d at 699–701; Bennett, 74 F.3d at 586. Thus, Texas

sheriffs are policymakers as a direct result of state statute; their constitutional violations

result in county liability even if contrary to other state law or policy. Bennett, 74 F.3d at 586.

No such statute is present here.

7

No. 07-10999

(b) The governing body by ordinance may delegate to

the city manager any additional powers or duties the

governing body considers proper for the efficient

administration of municipal affairs.

(c) The city manager must execute a bond. The bond

must be conditioned that the manager will faithfully

perform the duties of manager and must be in an

amount prescribed by ordinance.

TEXAS LOCAL GOV’T CODE ANN. § 25.029. The repeated references to the city

manager’s responsibility for “administration” make clear that the position is

executive rather than legislative; that is, state law alone does not give to city

managers “the responsibility for making law or setting policy in any given area

of a local government’s business.” Praprotnik, 485 U.S. at 125. State law

instead reserves that role for the “governing body.”

Nor does the local law that Bolton cites delegate to Dallas’s city manager

policymaking authority with respect to the employment decision here. The

Charter does give a broad degree of discretion to the city manager in the city

manager’s removal and appointment of employees, and it further prohibits the

city council from “dictat[ing]” the city manager’s decisions in that regard. Bolton

depends on this discretion—and its coordinate lack of review—to demonstrate

that Benavides is a final policymaker. But, as we discussed above, neither

complete discretionary authority nor the unreviewability of such authority

automatically results in municipal liability.5 There must be more. And Bolton

5

Bolton cites Neubauer v. City of McAllen, 766 F.2d 1567, 1573–74 (5th Cir. 1985),

overruled on other grounds by Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992), for

the proposition that a city manager with final discretion to make employment decisions is

necessarily a final policymaker. But we have not understood Neubauer to announce such a

broad rule or to be inconsistent with Pembaur. See Jett v. Dallas Indep. Sch. Dist., 798 F.2d

748, 759 (5th Cir. 1986), aff’d in part and remanded in part on other grounds, 491 U.S. 701

(1989). And the Charter here imposes limitations on the city manager not present in

Neubauer. See 766 F.2d at 1573–74.

8

No. 07-10999

points to no other relevant source of law showing that the City vested Bolton

with policymaking power.

Further, Chapter XII, § 5, of the Charter—the relevant local law quoted

earlier—prohibits the specific action taken by Benavides. Thus, absent some

contrary custom not shown here, Benavides’s action clearly does not represent

final policy with respect to the removal of city officials like Bolton. It is the

Charter that announces the City’s policy in this regard. See Barrow, 480 F.3d

at 382 (“[A]n official whose discretionary decisions on a particular matter are

final and unreviewable, meaning they can’t be overturned, is constrained if

another entity has ultimate power to guide that discretion, at least

prescriptively, whether or not that power is exercised.” (footnotes omitted));

Auriemma, 957 F.2d at 400 (“Liability for unauthorized acts is personal; to hold

the municipality liable, Monell tells us, the agent’s action must implement

rather than frustrate the government’s policy.”); Praprotnik, 485 U.S. at 127.

There is no argument that Benavides was generally free to disregard the

Charter,6 or that the City had a custom of permitting such disregard. And

Bolton has not shown that Benavides was vested with policymaking authority

such that municipal liability should attach despite the existence of a contrary

city policy. See Bennett, 74 F.3d at 586. Benavides was therefore not the final

policymaker with respect to his decision to terminate Bolton and municipal

liability cannot attach to that decision.

V.

6

Bolton makes an ill-defined argument that the City did assert in earlier litigation that

Benavides was free to disregard Chapter XII, § 5, of the Charter and that its statements in this

respect should now be held against the City lest the integrity of the courts be compromised.

Bolton calls these statements “judicial admissions,” although his argument also has the

characteristics of a request for estoppel. In any case, it is evident that the City’s position now

is a direct consequence of our earlier ruling in Bolton’s favor. We find no reason to prevent the

City from advancing such an argument in this case.

9

No. 07-10999

Because state and local law demonstrate that Ted Benavides was not a

final policymaker with respect to his decision to terminate the employment of

Terrell Bolton, the City of Dallas cannot be held liable for that termination.

Accordingly, the district court’s grant of summary judgment in favor of Dallas

is AFFIRMED. The motions before us are DENIED as moot.

10