Anderson v. Harris County

Case: 22-20627 Document: 59-1 Page: 1 Date Filed: 04/15/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 22-20627 April 15, 2024

____________

Lyle W. Cayce

Clerk

Marcus Anderson; Reed Clark,

Plaintiffs—Appellants,

versus

Harris County,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-4920

______________________________

Before Wiener, Haynes, and Higginson, Circuit Judges.

Haynes, Circuit Judge:

Plaintiffs Marcus Anderson and Reed Clark appeal the district court’s

dismissal of their § 1983 claims against Harris County. For the reasons set

forth below, we AFFIRM.

I. Background

This case involves allegations from current and former Harris County

employees that Constable Christopher Diaz violated their First Amendment

rights. Plaintiffs allege that, after Diaz was elected as constable of Harris

County Precinct Two, he “instituted reforms . . . to ensure that he would

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continue to be elected.” These reforms included requiring employees to

work on the Diaz campaign by (1) securing capital and (2) performing

administrative functions such as notifying employees of campaign events.

The employees further allege that Diaz retaliated against any employee who

impeded campaign functions. For example, Diaz allegedly disciplined every

employee “who participated in the Texas Rangers investigation into

misappropriated [Hurricane] Harvey donations by the Diaz campaign.”

Diaz also allegedly “conditioned advancement within Precinct Two upon a

quantitative evaluation of that employee’s contribution to the Diaz

campaign, such that, coveted positions would go to [the] employee who had

contributed the most.” Plaintiffs assert that Diaz’s employees suffered

various adverse employment actions ranging from transfer to termination.

As relevant here, Plaintiffs allege Diaz had final authority over

employment decisions. A former constable for Precinct Three submitted an

affidavit stating that he was a policymaker regarding employment decisions

and that neither the Harris County Sherriff’s Office nor the Commissioners

Court oversaw the creation of those policies.

In December 2019, Plaintiffs initiated this suit against Diaz and Harris

County under 42 U.S.C. § 1983, claiming Diaz violated their First

Amendment rights. Harris County subsequently filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Finding that Diaz was

not a policymaker for Harris County, the district court granted the motion

and dismissed with prejudice all claims against the county. At that time, the

district court declined to enter a final judgment as to Harris County.

However, two years later, when Plaintiffs moved for a final judgment as to

Harris County due to Diaz’s interlocutory appeal based upon his claim of

qualified immunity, the district court issued a final judgment regarding the

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claims against Harris County, allowing the Plaintiffs to appeal. 1 Plaintiffs

timely appealed.

II. Jurisdiction & Standard of Review

The district court properly exercised jurisdiction over Plaintiffs’

§ 1983 claims pursuant to 28 U.S.C. § 1331. We have jurisdiction to review

the district court’s partial final judgment entered pursuant to Rule 54(b). 28

U.S.C. § 1291.

We review de novo a district court’s grant of a motion to dismiss for

failure to state a claim, “applying the same standard applied by the district

court.” Masel v. Villarreal, 924 F.3d 734, 742–43 (5th Cir. 2019), as revised

(June 6, 2019). In conducting this review, we “accept as true any well-

pleaded factual allegations” but do not “accept as true legal conclusions.”

Id. at 743. “To survive a motion to dismiss, a complaint must contain

sufficient factual matter . . . to state a claim to relief that is plausible on its

face.” Id. (internal quotation marks and citation omitted).

III. Discussion

Plaintiffs raise two issues on appeal: (1) whether Diaz is a policymaker

regarding employment-related decisions for Harris County and,

alternatively, (2) whether Harris County, through its Commissioners Court,

delegated policymaking authority or rubber stamped Diaz’s employment

decisions.

A. Policymaker

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1

The two appeals were not consolidated. The district court had denied Diaz’s

claim of qualified immunity, and he lost his interlocutory appeal. Anderson v. Diaz, No. 22-

20525, 2023 WL 8521395, at *1 (5th Cir. Dec. 8, 2023) (per curiam). Thus, this appeal

addresses only the claims against Harris County.

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Plaintiffs may bring § 1983 claims against municipalities for violations

of their constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). However, “[i]t is well established that a [municipality] is not liable

under § 1983 on the theory of respondeat superior.” Valle v. City of Houston,

613 F.3d 536, 541 (5th Cir. 2010). Thus, to establish municipal liability, a

plaintiff must identify “a policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy or custom.”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting

Monell, 436 U.S. at 694). Here, the district court found that Diaz is not a

policymaker because a constable serving a single precinct does not make

employment policy for all of Harris County. We agree.

Our precedent makes clear that a constable’s employment decisions

within his own precinct do not constitute county-wide policy. In Rhode v.

Denson we were “unpersuaded that a constable of a Texas county precinct

occupies a relationship to the County such that his edicts or acts may fairly

be said to represent official county policy.” 776 F.2d 107, 108 (5th Cir. 1985).

Plaintiffs argue that Rhode is limited to a constable’s role when making

arrests. But our subsequent cases apply Rhode to constables’ employment

decisions. See, e.g., Tonkin v. Harris County, 257 F. App’x 762, 763 (5th Cir.

2007) (per curiam) (holding that a constable did not act as a policymaker

when he allegedly violated the plaintiffs’ First Amendment rights by

retaliating against them for refusing to support his election campaign);

Bowden v. Jefferson County, 676 F. App’x 251, 256 (5th Cir. 2017) (“As the

constable of one out of eight precincts in Jefferson County, [the constable]

may have been a decision maker for a single precinct, but he was not a

policymaker for all of Jefferson County when he constructively terminated

[the plaintiff].”); Frank v. Harris County, 118 F. App’x 799, 802 (5th Cir.

2004) (holding that a constable was not acting as a policymaker for the county

when he discharged a deputy).

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Although Plaintiffs have alleged that Diaz had complete control over

employment decisions for Precinct Two, 2 they have not alleged or argued

that he made employment decisions for the entire county, nor could they.

Accordingly, Diaz, as a constable of a single precinct, is not a final

policymaker for Harris County. 3

B. Delegation or Rubber Stamp

Plaintiffs alternatively argue that Harris County is liable for Diaz’s

employment decisions under a delegation or rubber-stamp theory. Both

theories fail in this case.

First, Plaintiffs improperly rely on Harris County v. Nagel for its

delegation theory. 349 S.W.3d 769 (Tex. App.—Houston [14th Dist.] 2011,

pet. denied). In Nagel, the court held that a constable was a policymaker for

the county because the Commissioners Court delegated authority to him. Id.

at 794. But there, the Commissioners Court delegated authority over mental-

health warrants in the entire county to the constable of a single precinct. Id.

Plaintiffs here have neither alleged nor argued that Diaz received authority

over more than his own precinct. We have previously rejected the extension

of Nagel to employment decisions for individual precincts, and we do so here.

Bowden, 676 F. App’x at 256 (“[T]he Texas court’s finding that the Harris

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2

This ability to make final employment decisions does not equate to the ability to

make final policy. See Bolton v. City of Dallas, 541 F.3d 545, 549 (5th Cir. 2008) (per curiam)

(“[D]iscretion to exercise a particular function does not necessarily entail final

policymaking authority over that function.”); Zarnow v. City of Wichita Falls, 614 F.3d 161,

167 (5th Cir. 2010) (“The fact that an official’s decisions are final is insufficient to

demonstrate policymaker status.”).

3

Plaintiffs also argue that, because sheriffs are policymakers, so are constables. But

we have repeatedly distinguished sheriffs and constables because a sheriff’s authority is

county-wide, while a constable has authority over only a single precinct. See, e.g., Rhode,

776 F.2d at 109; Bolton, 541 F.3d at 550 n.4.

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County Precinct 1 Constable was a policymaker is limited to that County’s

constable for the specific purpose covered by the broad delegation of serving

mental-health warrants. The limited holding in Nagel is inapplicable here.”

(footnote omitted)). Because Harris County did not delegate authority to

hire and fire to Diaz over the entire county, Plaintiffs’ delegation theory fails.

Second, Plaintiffs assert that Harris County is liable because the

Commissioners Court rubber stamped Diaz’s decisions by accepting them

without question. We have not applied a theory that merely failing to

disagree with something a constable did (without any allegation that the

Commissioners Court knew the details) allows for a rubber-stamp theory of

municipal liability. Rather, we have held a plaintiff may establish municipal

liability through a ratification theory. See Young v. Bd. of Supervisors, 927 F.3d

898, 903 (5th Cir. 2019) (“If the authorized policymakers approve a

subordinate’s decision and the basis for it, their ratification would be

chargeable to the municipality because their decision is final.” (emphasis

added) (quotation omitted)). There are certainly no pleadings of such

action. Thus, we need not even address the rubber-stamp theory here. 4

More importantly, Plaintiffs have not alleged that the county

maintained a policy authorizing constables to condition employment on

campaign contributions. Nor have Plaintiffs alleged that the Commissioners

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4

Even if we adopted a rubber-stamp theory of liability, Plaintiffs would fail to meet

their burden of establishing it. According to their allegations and affidavit, the

Commissioners Court had no control over Diaz’s employment decisions and no

involvement in the employment process. Texas courts have also held that “[o]nly the

constable has supervisory authority over the deputy constables; the commissioners court’s

only authority over the deputies is budgetary.” Nagel, 349 S.W.3d at 793; see also Renken

v. Harris County, 808 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1991, no writ)

(“The Commissioners Court does exercise budgetary powers over the positions in the

Constable’s office. However, it has no authority by virtue of that budgetary power, to

appoint or terminate a deputy constable.”).

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Court had any knowledge of Diaz’s employment decisions on that basis, let

alone alleged that the Commissioners Court approved Diaz’s decisions and

his unconstitutional basis for them. Under Plaintiffs’ alleged facts, Diaz’s

actions were based on his own policy (that he likely hid from the

Commissioners Court)—not the policy of Harris County. Plaintiffs’ claims

are thus more appropriately directed at Diaz alone. See Anderson v. Diaz, No.

22-20525, 2023 WL 8521395, at *1 (5th Cir. Dec. 8, 2023) (per curiam)

(affirming district court’s denial of qualified immunity to Diaz).

In sum, Plaintiffs have not alleged sufficient facts to plausibly show

Harris County adopted a policy that violated their First Amendment rights.

Accordingly, Plaintiffs’ assertion of municipal liability fails.

IV. Conclusion

Because Plaintiffs have failed to show that the alleged First

Amendment violations were the result of an official county policy, we

AFFIRM the district court’s dismissal of their claims against Harris

County.

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