Petition for Writ of Certiorari — Diane Scott Haddock, Petitioner v. Tarrant County, Texas, et al.
Supreme Court briefOct 14, 2021
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App. 1
United States Court of Appeals
for the Fifth Circuit
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No. 19-11327
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DIANE SCOTT HADDOCK,
Plaintiff—Appellant,
versus
TARRANT COUNTY, TEXAS; PATRICIA BACA-BENNETT;
KENNETH EARL NEWELL; JESUS NEVAREZ; JR.;
HONORABLE JUDITH WELLS; JEROME S. HENNIGAN;
JAMES B. MUNFORD; ALEX KIM,
Defendants—Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-817
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Before CLEMENT, HO, and DUNCAN, Circuit Judges.
JUDGMENT
(Filed May 18, 2021)
This cause was considered on the record on appeal
and was argued by counsel.
IT IS ORDERED and ADJUDGED that the judgment of the District Court is AFFIRMED.
App. 2
IT IS FURTHER ORDERED that appellant pay to
appellees the costs on appeal to be taxed by the Clerk
of this Court.
App. 3
REVISED
United States Court of Appeals
for the Fifth Circuit
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No. 19-11327
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DIANE SCOTT HADDOCK,
Plaintiff—Appellant,
versus
TARRANT COUNTY, TEXAS; PATRICIA BACA-BENNETT;
KENNETH EARL NEWELL; JESUS NEVAREZ; JR.;
HONORABLE JUDITH WELLS; JEROME S. HENNIGAN;
JAMES B. MUNFORD; ALEX KIM,
Defendants—Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-817
----------------------------------------------------------------------------------------------------------------------------------------------
(Filed May 18, 2021)
Before CLEMENT, HO, and DUNCAN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH
CIRCUIT RULE 47.5.4.
App. 4
We withdraw our prior opinion in this case and
substitute this revision. Appellant Diane Haddock
sued the seven district judges of Tarrant County’s family law courts (the “District Judges”) in their official capacities, District Judge Patricia Baca-Bennett in her
personal capacity, and the County under 42 U.S.C.
§ 1983, alleging that she was fired for refusing to
support a political candidate and for her husband’s
political activity. Holding that Haddock was both a policymaking and confidential employee lawfully subject
to patronage termination, the district court dismissed
her suit. We AFFIRM.1
I.
FACTS AND PROCEEDINGS
Tarrant County family courts are presided over by
seven elected district judges, who, in turn, are assisted
by seven appointed associate judges. Haddock was an
associate judge for nearly twenty years. Because they
serve more than one district judge, Texas law requires
Tarrant County associate judges be appointed with the
unanimous approval of the district judges; they can be
removed, however, by a majority vote. TEX. FAM. CODE
§§ 201.001(d), 204(b).
In 2016, Haddock and fellow associate judge
James Munford indicated interest in running for a district judge position. It was believed they would run
against one another for the 322nd district seat. Around
the same time, the grandparents of a child who died
while in her mother’s custody—after Haddock had
1
Judge Ho concurs in the judgment.
App. 5
signed the order giving the mother custody—circulated claims that Haddock had mishandled the case,
going so far as to allege that she had taken a bribe.2
Munford’s wife allegedly repeated these harsh allegations publicly, presumably to gain political advantage
for her husband. Haddock decided not to run, but she
and her husband do not appear to have reconciled with
Munford and his wife.
During the campaign, although Haddock herself
allegedly did not engage in any overt political activity,
her husband campaigned against Munford. Mr. Haddock and a political group with which he was associated accused Munford of being a “RINO” (Republican
In Name Only), violating the Second Amendment by
signing protective orders requiring litigants to surrender their firearms on inadequate evidence, physically
abusing and sexually assaulting his first wife, and terrifying his current wife by threatening her and a male
friend of hers with a gun.
District Judge Patricia Baca-Bennett, who supported Munford’s candidacy, allegedly sought to put a
stop to Mr. Haddock’s opposition by demanding that
Haddock publicly support Munford and “get her husband under control.” Haddock refused to do either.
Baca-Bennett allegedly subjected Haddock to “badgering, threats, back-biting, undermining and maligning,
and a campaign to orchestrate the termination of
[Haddock’s] employment.” She also allegedly sought to
2
We are aware of no evidence whatsoever that supports this
allegation.
App. 6
intimidate Haddock’s husband by reminding him “who
Diane works for” and spread rumors about Haddock
resigning that “undermined [Haddock’s] authority as a
judge.”3
During the campaign, Haddock also learned that
the district judge for her own District 233 was retiring.
Kenneth Newell won the Republican primary (he then
ran unopposed, meaning he knew then that he would
become District 233’s district judge), so he spoke with
Haddock about her future as the District 233 associate
judge. He indicated that he was concerned about the
political situation and had “not made a decision about
what to do with” Haddock.
Following unsuccessful complaints to Tarrant
County’s human resources department, Haddock eventually sued Baca-Bennett and Tarrant County for subjecting her to a hostile work environment in retaliation
for her husband’s political activity and her own refusal
to support Munford. Fewer than ninety days later, she
was terminated by a majority of the seven district
judges, including Newell. She amended her complaint
to address her termination, add the District Judges in
their official capacities as defendants, and demand reinstatement or front pay in lieu thereof.
The district court dismissed Haddock’s claims for
money damages against the District Judges in their
3
We express no opinion whether these allegations against
Baca-Bennett, if true, violate Texas’s Code of Judicial Conduct.
See TEX. GOV’T CODE ANN., tit. 2 subtit. G app., Canons 2B, 3C(1),
5(2).
App. 7
official capacity under Rule 12(b)(1), holding that the
suit is barred by the Eleventh Amendment because the
District Judges are state officials, meaning “the state
was the real, substantial party in interest,” and the
state has not waived sovereign immunity. See Va. Off.
for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011)
(cleaned up). Haddock does not appeal this ruling.
The district court also dismissed Haddock’s claim
for injunctive relief against the District Judges under
Rule 12(b)(6). The First Amendment generally prohibits adverse employment actions against government
employees based on political affiliation, Elrod v. Burns,
427 U.S. 347, 373 (1976), but, where “an employee’s private political beliefs would interfere with the discharge
of [her] public duties, [her] First Amendment rights
may be required to yield to the State’s vital interest
in maintaining governmental effectiveness and efficiency,” Branti v. Finkel, 445 U.S. 507, 517 (1980).
Sometimes called the Elrod/Branti exception, this
maxim most often applies to employees in policymaking or confidential positions.
Finding that Haddock’s position involved both policymaking and confidential relationships with the District Judges and, “[t]herefore, an associate judge’s
political ideology, associations, and activities may rationally influence a district judge’s assessment of the
individual’s suitability for a position as an associate
judge,” the district court held that she had failed to
state a claim on which relief could be granted against
the District Judges and dismissed Haddock’s demands
for injunctive relief under Rule 12(b)(6). Haddock P.
App. 8
Tarrant Cnty., No. 4:18-cv-00817-O, 2019 WL 7944073,
at *7–8 (N.D. Tex. Sept. 11, 2019).
The district court dismissed all claims against Tarrant County under Rule 12(b)(6), both because Haddock had failed to allege an underlying constitutional
violation and because she had failed to allege a county
policy or policymaker that caused the alleged violation.
Finally, the district court dismissed all claims against
Baca-Bennett under Rule 12(b)(6) on the basis of qualified immunity. Haddock timely appealed.
II.
STANDARD OF REVIEW
We review a dismissal on the pleadings under
Rules 12(b)(1) or 12(b)(6) de novo, “accepting all wellpleaded facts as true and viewing those facts in the
light most favorable to the plaintiffs.” Wolcott P. Sebelius, 635 F.3d 757, 762–63 (5th Cir. 2011) (citation
omitted). “Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Id. at 763 (cleaned up).
III.
DISCUSSION
A.
Haddock argues on appeal that the district court
erred in applying the Elrod/Branti exception to her
First Amendment claims because she claims that she
is neither a policymaker nor a confidential employee.
App. 9
She also argues that her intimate association claim (allegedly, Baca-Bennett retaliated against Haddock for
her husband’s speech, not her own) is—categorically—
not subject to the Elrod/Branti exception. We disagree.
Haddock also argues that the Supreme Court’s
balancing test in Pickering v. Board of Education, 391
U.S. 563 (1968), would be more appropriate than an
Elrod/Branti analysis. We need not analyze this argument in any great depth; where the Government’s interest in political loyalty is weighed against an
employee’s First Amendment interests, the tests frequently merge. See Maldonado v. Rodriguez, 932 F.3d
388, 392 (5th Cir. 2019) (“This court’s decisions have
melded the Supreme Court’s discussion of these principles in Branti v. Finkel with the broader but similar
Pickering–Connick test.”). Generally speaking—and
applicable here—if the Elrod/Branti exception applies,
the Pickering analysis is also concluded.
We also note that the test, strictly speaking, is
not about whether an employer is a policymaker or
confidential employee. “[R]ather, the question is whether
the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.” Branti, 445
U.S. at 518. That said, “where a public employee . . . occupies a confidential or policymaking role, the employer’s interests more easily outweigh the employee’s
First Amendment rights.” Maldonado, 932 F.3d at 392
(alteration in original) (quoting Gentry v. Lowndes
Cnty., 337 F.3d 481, 486 (5th Cir. 2003)).
App. 10
(1)
Haddock was a confidential employee. “A government employee may be ‘confidential’ ‘if he or she stands
in a confidential relationship to the policymaking process, e.g., as an advisor to a policymaker, or if he or
she has access to confidential documents or other materials that embody policymaking deliberations and
determinations, e.g., as a private secretary to a policymaker.’ ” Garza P. Escobar, 972 F.3d 721, 729 (5th Cir.
2020) (quoting Maldonado, 932 F.3d at 393). If a superior official would be unable to carry out her duties as
efficiently or to delegate sensitive tasks when she did
not feel she could trust an employee to keep her confidences, that is likely a confidential employee.
Associate judges are “privy to confidential”—and,
given the nature of family law matters, often extremely
sensitive—“litigation materials and internal court
communications in the discharge of [their] duties, and
further maintain[ ] a personal confidential relationship
with the judge(s) which [they] serve[ ].” Mumford P. Basinski, 105 F.3d 264, 272 (6th Cir. 1997). Whether in
private conversation with district judges or in writing
when they “resolve[ ] a dispute in the court’s name or
recommend[ ] a disposition to a judge,” the associate
judges serve as advisors and confidants to the district
judges, aiding them in the execution of their duties. Id.
Haddock argues that she cannot be a confidential employee because seven associate judges working for seven district judges results in “forty-nine
independently developing working relationships”—too
App. 11
many relationships, she argues, to implicate the sort of
close, personal relationships characteristic of confidential employees. First, Haddock’s math is misguided—
this case has nothing to do with her relationships with
the other associate judges. Only seven working relationships are relevant—between Haddock and her superiors, the district judges. We suspect all of our
twenty-five colleagues on this court would agree that
judges can reasonably be expected to maintain at least
seven close, yet professional working relationships.
Second, this numerical argument is firmly foreclosed by precedent. See, e.g., Gentry, 337 F.3d at 486
(“[I]f a public employee’s loyalty is owed to a [five]member governing board, he cannot choose political
favorites or enemies among the board because shifting
coalitions or electoral victories may too easily render
the employee’s decisions, made in accord with personal
preference, at odds with the board majority view.”);
Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 996
(5th Cir. 1992) (en banc) (school superintendent’s loyalty may be required by a seven-member school board).
Further, Haddock’s pled facts—which at this stage,
we must presume to be true—make clear that the associate judges and district judges developed close, personal relationships that involved the exchange of
confidences, including on politically sensitive and policy-oriented topics. Haddock discussed electoral politics and her own prospective campaign with District
Judge William Harris—her supervising District 233
judge prior to Newell’s election. She ultimately decided not to run for office based, in part, on his advice.
App. 12
We also know that Newell replaced Haddock with a
close associate (the friend who “emceed” his investiture).
Our colleagues on the Seventh Circuit note that,
where personal interactions are an important part of
the work environment, “[p]olitical animosity . . . can
in practice create a hostile work environment where
face to face contact and cooperation are essential,” in
some cases harming the efficiency of the office. See
Meeks v. Grimes, 779 F.2d 417, 423 (7th Cir. 1985).
This is precisely what happened here. Haddock alleges that she accused Baca-Bennett of unethical judicial conduct—specifically, “violat[ing] the canons
governing active judges”—by openly campaigning for
Munford. The Haddocks and Munfords lobbed vitriolic campaign rhetoric at each other that might have
made the Hatfields and McCoys blush—the allegations ranged from sexual assault and other domestic
violence to taking bribes and leaving a child to die in
an unsafe home.
Although Haddock alleged that “all seven associate judges serve all seven district judges,” it’s difficult
to imagine a healthy working relationship between
Haddock and at least two of the judges, which, all else
being equal, makes her a less effective employee than
an associate judge who can work amicably with all
seven. Haddock also alleges that Baca-Bennett’s role
in the dispute “undermine[d] respect for [Haddock’s]
judicial authority,” which presumably impacted Haddock’s effectiveness on the bench, even when serving
the remaining five judges.
App. 13
Ultimately, although Haddock alleges she believed
Newell otherwise wished to retain her, she was left
with the impression that he felt “she would be difficult
to keep despite her qualifications due to the political
situation.” In short, Haddock was a confidential employee to all seven district judges due to the close and
personal working relationships associate judges have
with the district judges. The district judges were free
to terminate Haddock’s employment in connection
with a political dispute that disrupted Tarrant County
family court operations. See Simasko P. Cnty. of St.
Clair, 417 F.3d 559, 562–63 (6th Cir. 2005) (holding
that a confidential employee may lawfully be terminated for remaining neutral in his supervisor’s campaign and refusing to try to curtail his brother’s public
support for his supervisor’s opponent “however misguided and vindictive that action may” be). The Elrod/
Branti exception is not about labels like “policymaker”
or “confidential,” but about preventing precisely this
type of disruption.
Thus, we hold that Haddock was a confidential
employee under Elrod/Branti.4
(2)
Next, Haddock argues that some of the specific
First Amendment rights upon which she bases her
claims cannot be subject to Elrod/Branti analysis.
4
We need not address whether Haddock was also a policymaker under the Elrod/Branti exception because we hold that she
was a confidential employee.
App. 14
Specifically, she argues that Elrod/Branti may apply
to reprisals for an employee who actively campaigns
against her superior, but—because the speech at issue
was her husband’s, not her own (she, allegedly, refused
to campaign for or against anyone)—she is being punished for her association with her spouse and for refusing to campaign. In other words, Haddock argues that
the First Amendment rights of intimate association
and freedom from compelled speech should not be subject to the Elrod/Branti exception.
Our precedent firmly establishes that Elrod/
Branti applies to refusal to speak. See, e.g., Stegmaier
v. Trammell, 597 F.2d 1027, 1040 (5th Cir. 1979), (holding confidential employee could be discharged for failing to support elected officeholder’s candidacy under
Elrod). We also join the unanimous opinion of our sister Circuits in holding that intimate association claims
can be subjected to Elrod/Branti analysis, see, e.g., Simasko v. Cnty. of St. Clair, 417 F.3d 559 (6th Cir. 2005);
McCabe v. Sharrett, 12 F.3d 1558, 1572 (11th Cir. 1994);
Soderbeck v. Burnett Cnty., 752 F.2d 285 (7th Cir. 1985)
(Posner, J.), and extend our own precedent holding
that a confidential employee may be terminated for
personal and political associations, see Soderstrum v.
Town of Grand Isle, 925 F.2d 135 (5th Cir. 1991), to the
intimate association context.
We must address two key distinctions between the
present case and Soderstrum. First, in Soderstrum the
plaintiff had “unambiguously expressed her lack of
confidence in the incoming official and her unwillingness to work in the new administration.” 925 F.2d at
App. 15
141. Here, at least per Haddock’s allegations, Haddock
had expressed no such unwillingness or opposition.
This distinction, while interesting, is not crucial. The
dispositive fact in Soderstrum was that the plaintiff
“served in a position of confidence requiring complete
loyalty to the police chief,” and that the newly elected
chief doubted her loyalty—that she had explicitly given
him reason to doubt her loyalty (beyond her association with the outgoing police chief ) merely reinforced
the point that the defendant’s doubts were reasonable.
Id. at 140.
Second, the association at issue in Soderstrum was
a personal and political relationship. Here, Haddock
alleges that she was fired for intimate association with
her spouse, which she argues should be a more carefully protected relationship. We need not decide the
quantum of difference, if any, between the protections
afforded different types of relationships because we
join every other Circuit to have considered the issue
in holding that Elrod/Branti also applies to intimate
association claims. The Eleventh Circuit’s opinion in
McCabe v. Sherrett is instructive.
The McCabe court held that an elected police chief
could demote his confidential secretary to a non-confidential position because she was married to one of his
officers. McCabe did not involve any allegations that
the plaintiff had campaigned against the new police
chief or had ever violated his trust. To the contrary,
“[e]vidence produced by both parties demonstrate[d]”
that the plaintiff “actually breached no confidences
during the brief period she served as” the defendant’s
App. 16
secretary, there was no reason to believe she had ever
breached the prior chief ’s confidences, and the odds of
her ever doing so “may not have been overwhelming.”
McCabe, 12 F.3d at 1572–73 & n.17. Nonetheless, her
job required her to have access to the chief ’s confidential communications, including communications about
personnel complaints and officer discipline. If there
were a complaint against her husband or one of his colleagues, she would see it first. The McCabe court reasoned that “[i]t is a matter of common experience that
spouses tend to possess a higher degree of loyalty to
their marital partners than to their superiors, and often discuss workplace matters with one another, even
matters that a superior has designated as confidential.” Id. at 1572. The elected official was uncomfortable
“having the wife of an officer under [his] command
function[ ] as [his] confidential Executive Secretary,”
for fear (based on nothing more than the fact of her
marriage to her husband) that her loyalty would be
elsewhere, so he was constitutionally permitted to demote her. Id.
Similarly, there is no evidence that Haddock had
ever breached the District Judges’ confidence or prioritized her loyalty to her husband over her duty of
confidentiality as an associate judge. We engage in
no presumption that she was likely to do so. See TEX.
GOV’T CODE ANN., tit. 2, subtit. G app., Canon 2B (“A
judge shall not allow any relationship to influence
judicial conduct or judgment.”). However, we recognize that, as “a matter of common experience,” McCabe, 12 F.3d at 1572, it was not unreasonable for
App. 17
the District Judges to worry that spousal loyalty
might interfere with their ability to “expect, without
question, undivided loyalty” from their confidential
employee, Stegmaier, 597 F.2d at 1040. Combined
with the fact that “we do not require employers to
wait until their office is disrupted before taking action,” that the District Judges lost confidence in Haddock’s undivided loyalty—even in the absence of any
breach of trust by Haddock—is sufficient for them
constitutionally to terminate her employment. Garza,
972 F.3d at 732.
By the nature of the spousal relationship, an
elected official may reasonably worry that they will not
receive the undivided loyalty to which they are entitled
from their confidential employees, so we recognize that
the Elrod/Branti exception may extend to intimate association claims. Haddock was in a confidential role,
and, under the Elrod/Branti exception, could constitutionally be discharged for the exercise of rights that
would otherwise by protected by the First Amendment.5
B.
Haddock alleges that the district court erred by
dismissing her claims against Tarrant County. Although Tarrant County, as a municipal entity, can be
5
To the extent we have not explicitly addressed any of Haddock’s claims, such as her freedom of petition claim based on filing
this suit, our holding that she is a confidential employee suffices
to affirm dismissal of all Haddock’s First Amendment claims.
App. 18
held liable under § 1983 when an “action pursuant to
official municipal policy of some nature caused a constitutional tort,” it “cannot be held liable under § 1983
on a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). For municipal liability
to attach, a plaintiff must prove “three elements: a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or
custom.” Zarnow v. City of Wichita Falls, 614 F.3d 161,
166 (5th Cir. 2010) (quoting Piotrowski v. City of Hous.,
237 F.3d 567, 578 (5th Cir. 2001)).
As explained above, because the Elrod/Branti
exception applies to Haddock’s claims, she has failed
to plead a constitutional violation. We therefore do
not need to examine whether she has pled a county
policymaker or official policy. The district court correctly dismissed Haddock’s claims against Tarrant
County.
C.
Haddock also takes issue with the district court’s
holding that Baca-Bennett has qualified immunity.
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly
established at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (cleaned
up). These questions can be answered in either order.
Pearson v. Callahan, 555 U.S. 223, 242 (2009).
App. 19
As explained above, Baca-Bennett did not violate
Haddock’s constitutional rights; this is enough for
Baca-Bennett to be entitled to qualified immunity.
Even if Haddock’s rights had been violated, however,
Baca-Bennett certainly did not have “fair warning that
[her] conduct violate[d] a constitutional right.” Clarkston P. White, 943 F.3d 988, 993 (5th Cir. 2019) (quoting
Delaughter P. Woodall, 909 F.3d 130, 140 (5th Cir.
2018)). Closely on-point authority from our sister Circuits indicated that the Elrod/Branti exception applies
to positions very much like Haddock’s. See, e.g., Mumford, 105 F.3d 264. Baca-Bennett is entitled to qualified
immunity.
IV.
CONCLUSION
The district court correctly held that Haddock, as
a confidential employee, was subject to the Elrod/
Branti exception, and had therefore failed to allege a
constitutional violation.
AFFIRMED.
App. 20
United States Court of Appeals
for the Fifth Circuit
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No. 19-11327
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DIANE SCOTT HADDOCK,
Plaintiff—Appellant,
versus
TARRANT COUNTY, TEXAS; PATRICIA BACA-BENNETT;
KENNETH EARL NEWELL; JESUS NEVAREZ; JR.;
HONORABLE JUDITH WELLS; JEROME S. HENNIGAN;
JAMES B. MUNFORD; ALEX KIM,
Defendants—Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-817
----------------------------------------------------------------------------------------------------------------------------------------------
(Filed Feb. 1, 2021)
Before CLEMENT, HO, and DUNCAN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Appellant Diane Haddock sued the seven district
judges of Tarrant County’s family law courts (the “District Judges”) in their official capacities, District Judge
Patricia Baca-Bennett in her personal capacity, and
the County under 42 U.S.C. § 1983, alleging that she
App. 21
was fired for refusing to support a political candidate
and for her husband’s political activity. Holding that
Haddock was both a policymaking and confidential
employee lawfully subject to patronage termination,
the district court dismissed her suit. We AFFIRM.
I.
FACTS AND PROCEEDINGS
Tarrant County family courts are presided over by
seven elected district judges, who, in turn, are assisted
by seven appointed associate judges. Haddock was an
associate judge for nearly twenty years. Because they
serve more than one district judge, Texas law requires
Tarrant County associate judges be appointed with the
unanimous approval of the district judges; they can be
removed, however, by a majority vote. TEX. FAM. CODE
§§ 201.001(d), 204(b).
In 2016, Haddock and fellow associate judge
James Munford indicated interest in running for a district judge position. It was believed they would run
against one another for the 322nd district seat. Around
the same time, the grandparents of a child who died
while in her mother’s custody—after Haddock had
signed the order giving the mother custody—circulated claims that Haddock had mishandled the case,
going so far as to allege that she had taken a bribe.1
Munford’s wife allegedly repeated these harsh allegations publicly, presumably to gain political advantage
for her husband. Haddock decided not to run, but she
1
We are aware of no evidence whatsoever that supports this
allegation.
App. 22
and her husband do not appear to have reconciled with
Munford and his wife.
During the campaign, although Haddock herself
allegedly did not engage in any overt political activity,
her husband campaigned against Munford. Mr. Haddock and a political group with which he was associated accused Munford of being a “RINO” (Republican
In Name Only), violating the Second Amendment by
signing protective orders requiring litigants to surrender their firearms on inadequate evidence, physically
abusing and sexually assaulting his first wife, and terrifying his current wife by threatening her and a male
friend of hers with a gun.
District Judge Patricia Baca-Bennett, who supported Munford’s candidacy, allegedly sought to put a
stop to Mr. Haddock’s opposition by demanding that
Haddock publicly support Munford and “get her husband under control.” Haddock refused to do either.
Baca-Bennett allegedly subjected Haddock to “badgering, threats, back-biting, undermining and maligning,
and a campaign to orchestrate the termination of
[Haddock’s] employment.” She also allegedly sought to
intimidate Haddock’s husband by reminding him “who
Diane works for” and spread rumors about Haddock
resigning that “undermined [Haddock’s] authority as a
judge.”
During the campaign, Haddock also learned that
the district judge for her own District 233 was retiring.
Kenneth Newell won the Republican primary (he then
ran unopposed, meaning he knew then that he would
App. 23
become District 233’s district judge), so he spoke with
Haddock about her future as the District 233 associate
judge. He indicated that he was concerned about the
political situation and had “not made a decision about
what to do with” Haddock.
Following unsuccessful complaints to Tarrant
County’s human resources department, Haddock eventually sued Baca-Bennett and Tarrant County for subjecting her to a hostile work environment in retaliation
for her husband’s political activity and her own refusal
to support Munford. Fewer than ninety days later, she
was terminated by a majority of the seven district
judges, including Newell. She amended her complaint
to address her termination, add the District Judges in
their official capacities as defendants, and demand reinstatement or front pay in lieu thereof.
The district court dismissed Haddock’s claims for
money damages against the District Judges in their official capacity under Rule 12(b)(1), holding that the
suit is barred by the Eleventh Amendment because the
District Judges are state officials, meaning “the state
was the real, substantial party in interest,” and the
state has not waived sovereign immunity. See Va. Off.
for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011)
(cleaned up). Haddock does not appeal this ruling.
The district court also dismissed Haddock’s claim
for injunctive relief against the District Judges under
Rule 12(b)(6). The First Amendment generally prohibits adverse employment actions against government
employees based on political affiliation, Elrod v. Burns,
App. 24
427 U.S. 347, 373 (1976), but, where “an employee’s
private political beliefs would interfere with the discharge of [her] public duties, [her] First Amendment
rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and
efficiency,” Branti v. Finkel, 445 U.S. 507, 517 (1980).
Sometimes called the Elrod/Branti exception, this
maxim most often applies to employees in policymaking or confidential positions.
Finding that Haddock’s position involved both
policymaking and confidential relationships with the
District Judges and, “[t]herefore, an associate judge’s
political ideology, associations, and activities may rationally influence a district judge’s assessment of the
individual’s suitability for a position as an associate
judge,” the district court held that she had failed to
state a claim on which relief could be granted against
the District Judges and dismissed Haddock’s demands
for injunctive relief under Rule 12(b)(6). Haddock v.
Tarrant Cnty., No. 4:18-cv-00817-O, 2019 WL 7944073,
at *7–8 (N.D. Tex. Sept. 11, 2019).
The district court dismissed all claims against
Tarrant County under Rule 12(b)(6), both because
Haddock had failed to allege an underlying constitutional violation and because she had failed to allege a
county policy or policymaker that caused the alleged
violation. Finally, the district court dismissed all
claims against Baca-Bennett under Rule 12(b)(6) on
the basis of qualified immunity. Haddock timely appealed.
App. 25
II.
STANDARD OF REVIEW
We review a dismissal on the pleadings under
Rules 12(b)(1) or 12(b)(6) de novo, “accepting all wellpleaded facts as true and viewing those facts in the
light most favorable to the plaintiffs.” Wolcott v. Sebelius, 635 F.3d 757, 762–63 (5th Cir. 2011) (citation
omitted). “Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments,
documents incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Id. at 763 (cleaned up).
III.
DISCUSSION
A.
Haddock argues on appeal that the district court
erred in applying the Elrod/Branti exception to her
First Amendment claims because she claims that she
is neither a policymaker nor a confidential employee.
She also argues that her intimate association claim (allegedly, Baca-Bennett retaliated against Haddock for
her husband’s speech, not her own) is—categorically—
not subject to the Elrod/Branti exception. We disagree.
Haddock also argues that the Supreme Court’s
balancing test in Pickering v. Board of Education, 391
U.S. 563 (1968), would be more appropriate than an
Elrod/Branti analysis. We need not analyze this argument in any great depth; where the Government’s interest in political loyalty is weighed against an
employee’s First Amendment interests, the tests frequently merge. See Maldonado v. Rodriguez, 932 F.3d
App. 26
388, 392 (5th Cir. 2019) (“This court’s decisions have
melded the Supreme Court’s discussion of these principles in Branti v. Finkel with the broader but similar
Pickering-Connick test.”). Generally speaking—and
applicable here—if the Elrod/Branti exception applies,
the Pickering analysis is also concluded.
We also note that the test, strictly speaking, is not
about whether an employer is a policymaker or confidential employee. “[R]ather, the question is whether
the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.” Branti, 445
U.S. at 518. That said, “where a public employee . . . occupies a confidential or policymaking role, the employer’s interests more easily outweigh the employee’s
First Amendment rights.” Maldonado, 932 F.3d at 392
(alteration in original) (quoting Gentry v. Lowndes
Cnty., 337 F.3d 481, 486 (5th Cir. 2003)).
(1)
Haddock’s pleadings, combined with Texas law,
make clear that she is a policymaker subject to the
Elrod/Branti exception, and political affiliation is relevant to her qualification for the associate judge position.
The reason the Elrod/Branti exception typically
applies to policymakers is that such employees are
uniquely positioned to frustrate the policy agendas of
the elected officials for whom they work. As our colleagues on the Seventh Circuit have explained, “it
App. 27
would undermine the democratic process to hold that
the winners at the polls may not employ those committed to implementing their political agenda.” Kurowski
v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988).
“Policymakers are ‘public employees whose responsibilities require more than simple ministerial
competence, whose decisions create or implement policy, and whose discretion in performing duties or in
selecting duties to perform is not severely limited by
statute, regulation, or policy determinations made by
supervisors.’ ” Garza v. Escobar, 972 F.3d 721, 729 (5th
Cir. 2020) (quoting Aucoin v. Haney, 306 F.3d 268, 273
(5th Cir. 2002)). “An employee with responsibilities
that are not well defined or are of broad scope more
likely functions in a policymaking position.” Stegmaier
v. Trammell, 597 F.2d 1027, 1033 (5th Cir. 1979).
Haddock argues that judges, categorically, cannot
be policymakers because they merely apply the law to
the facts of a case. Although we appreciate this aspirational view of the judiciary generally, both the structure of the judiciary in Texas and Haddock’s pleadings
refute this argument.
Haddock relies heavily on a case recently reversed
by the Supreme Court, in which the Third Circuit held
that “a judicial officer, whether appointed or elected,
is not a policymaker.” See Adams v. Governor of Del.,
922 F.3d 166 (3d Cir. 2019), rev’d sub. nom. Carney v.
Adams, 141 S. Ct. 493 (2020) (reversing on standing
grounds without comment on whether judges are
App. 28
policymakers). Adams is unpersuasive for reasons
beyond its reversal.
First, the categorical pronouncement was mere
dicta; the context of the case was Delaware’s constitutional structure, which required consideration of political party when appointing judges. This structure
itself, the Third Circuit reasoned, demonstrated “that
political loyalty is not an appropriate job requirement
for Delaware judges” because it required the Governor
to occasionally “nominate judges who belong to a different political party.” Id. at 179. In contrast, the Texas
constitution leaves the selection of judges to the electorate, with no requirement or expectation that voters
ever knowingly select a judge with whom they disagree.
Second, we are guided by the unanimous opinion
of our colleagues on other Circuits that judicial officers
can be (and often are) policymakers. See, e.g., Mumford
v. Basinski, 105 F.3d 264, 272 (6th Cir. 1997) (family
law referee’s “political ideology, associations, and activities may rationally influence a judge’s assessment of
an individual’s suitability for a position as his referee”); Kurowski, 848 F.2d at 770 (“A judge both makes
and implements governmental policy. A judge may be
suspicious of police or sympathetic to them, stern or
lenient in sentencing, and political debates rage about
such questions.”); cf. Hawkins v. Steingut, 829 F.2d 317,
318 (2d Cir. 1987) (granting qualified immunity for
dismissal of Workers’ Compensation referee “referred
to by the Board as ‘Workers’ Compensation Law
judges’ ”). Particularly where, as here, judges are
App. 29
elected based on both personal and political qualifications, we see no reason why they or their appointees
should be categorically excluded as policymakers. In
Texas, as “[i]n most states[,] judges are elected, implying that the office has a political component.”
Kurowski, 848 F.2d at 770.
Finally, the specific facts of this case illustrate that
the associate judge position was a policymaking role.
The Sixth Circuit’s opinion in Mumford is particularly
illuminating. Mumford was a Domestic Relations
Court referee, with authority to “conduct [ ] hearings
on the matters referred to him, [ ] issu[e] [ ] subpoenas,
[ ] swear[ ] and examin[e] [ ] witnesses, . . . promulgat[e] [ ] evidentiary rulings and . . . [enter] certain
pretrial, discovery, temporary restraining, and other
orders necessary to regulate the proceedings, all without judicial ratification.” Mumford, 105 F.3d at 272.
Similarly, once a case is referred to a Tarrant
County associate judge, they can hear “any aspect of a
suit over which the court has jurisdiction . . . including
any matter ancillary to the suit.”2 TEX. FAM. CODE
2
This includes the authority to: conduct hearings, hear and
rule on admissibility of evidence, compel production of relevant
evidence, issue a summons for the appearance of a witness, examine a witness, swear a witness for a hearing, make findings of fact,
formulate conclusions of law, recommend an order, regulate all
proceedings in a hearing before them, order the attachment of a
witness or party who fails to obey a subpoena, order detention of
a witness or party found guilty of contempt, and render and sign
a final order agreed to in writing by the parties, a final default
order, a temporary order, or a final order in a case in which the
parties have waived hearing. TEX. FAM. CODE § 201.007.
App. 30
§ 201.005(a). Most of an associate judge’s decisions are
subject to de novo review by the presiding district
judge, but associate judges can also issue final orders
in cases in which the parties have waived the right to
a de novo hearing. TEX. FAM. CODE § 201.007. Even
where a party requests de novo review, an associate
judge’s orders remain in full effect unless and until
they are reversed. TEX. FAM. CODE § 201.013. Like the
referees in Mumford, Tarrant County associate judges
“effectively make[ ] policy for, or suggest[ ] policy to, the
court on each occasion that [they] resolve[ ] a dispute
in the court’s name or recommend[ ] a disposition to a
judge.” 105 F.3d at 272. There can be no question that
Haddock was entrusted with the type of broad discretion that paradigmatically characterizes a policymaker.
More crucially, Haddock’s complaint shows that
the policymaking functions of an associate judge were
directly relevant during judicial elections. Munford’s
performance as an associate judge—including degree
of party fealty (whether he was a “RINO”) and attitude
toward political hot-button topics like gun rights—
were key campaign issues. Haddock, by her own allegations, was fired at least in part (if not entirely) because of her husband’s speech on those specific topics.
Haddock herself had planned to run for a district
judgeship until controversy over her own decisionmaking as an associate judge led her to drop out of the
race.
As the Sixth Circuit explained, “judges are policymakers because their political beliefs influence and
App. 31
dictate their decisions on important jurisprudential
matters.” Newman v. Voinovich, 986 F.2d 159, 163 (6th
Cir. 1993). Judicial temperament (for example, willingness to issue protective orders) is directly relevant to
the job of Tarrant County family court associate judges
and is an important aspect of the political qualifications—and electoral fortunes—of the district judges
they represent. Haddock herself notes the importance
of associate judges understanding and respecting what
she terms district judge’s “preferences.” For example,
one “district judge will nearly always order a batterer’s
intervention course. Another will almost never order a
social study in child custody cases.”
The voters of Tarrant County should not have to
wonder whether the district judges they elect will be
able to carry out the will of the electorate without constant oversight of their associate judges. Instead, district judges are entitled to select associate judges they
trust to carry out their policy preferences. Haddock
was a policymaker, so, to the extent that her claims are
premised on perceived political disloyalty—whether
because she refused to support Munford, was believed
to agree with her husband’s anti-Munford advocacy, or
for whatever other reason—her termination was constitutional under the Elrod/Branti doctrine.
(2)
Haddock was also a confidential employee. “A
government employee may be ‘confidential’ ‘if he or
she stands in a confidential relationship to the
App. 32
policymaking process, e.g., as an advisor to a policymaker, or if he or she has access to confidential documents or other materials that embody policymaking
deliberations and determinations, e.g., as a private secretary to a policymaker.’ ” Garza, 972 F.3d at 729 (quoting Maldonado, 932 F.3d at 393). If a superior official
would be unable to carry out her duties as efficiently
or to delegate sensitive tasks when she did not feel she
could trust an employee to keep her confidences, that
is likely a confidential employee.
Associate judges are “privy to confidential”—and,
given the nature of family law matters, often extremely
sensitive—“litigation materials and internal court
communications in the discharge of [their] duties, and
further maintain[ ] a personal confidential relationship
with the judge(s) which [they] serve[ ].” Mumford, 105
F.3d at 272. Whether in private conversation with district judges or in writing when they “resolve[ ] a dispute in the court’s name or recommend[ ] a disposition
to a judge,” the associate judges serve as advisors and
confidants to the district judges, aiding them in the execution of their duties. Id.
Haddock argues that she cannot be a confidential
employee because seven associate judges working for
seven district judges results in “forty-nine independently developing working relationships”—too many relationships, she argues, to implicate the sort of close,
personal relationships characteristic of confidential
employees. First, Haddock’s math is misguided—this
case has nothing to do with her relationships with
the other associate judges. Only seven working
App. 33
relationships are relevant—between Haddock and her
superiors, the district judges. We suspect all of our
twenty-five colleagues on this court would agree that
judges can reasonably be expected to maintain at least
seven close, yet professional working relationships.
Second, this numerical argument is firmly foreclosed by precedent. See, e.g., Gentry, 337 F.3d at 486
(“[I]f a public employee’s loyalty is owed to a [five]member governing board, he cannot choose political
favorites or enemies among the board because shifting
coalitions or electoral victories may too easily render
the employee’s decisions, made in accord with personal
preference, at odds with the board majority view.”);
Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 996
(5th Cir. 1992) (en banc) (school superintendent’s loyalty may be required by a seven-member school board).
Further, Haddock’s pled facts—which at this
stage, we must presume to be true—make clear that
the associate judges and district judges developed
close, personal relationships that involved the exchange of confidences, including on politically sensitive
and policy-oriented topics. Haddock discussed electoral
politics and her own prospective campaign with District Judge William Harris—her supervising District
233 judge prior to Newell’s election. She ultimately decided not to run for office based, in part, on his advice.
We also know that Newell replaced Haddock with a
close associate (the friend who “emceed” his investiture).
App. 34
Our colleagues on the Seventh Circuit note that,
where personal interactions are an important part of
the work environment, “[p]olitical animosity . . . can in
practice create a hostile work environment where face
to face contact and cooperation are essential,” in some
cases harming the efficiency of the office. See Meeks v.
Grimes, 779 F.2d 417, 423 (7th Cir. 1985). This is precisely what happened here. Haddock alleges that she
accused Baca-Bennett of unethical judicial conduct—
specifically, “violat[ing] the canons governing active
judges”—by openly campaigning for Munford. The
Haddocks and Munfords lobbed vitriolic campaign
rhetoric at each other that might have made the
Hatfields and McCoys blush—the allegations ranged
from sexual assault and other domestic violence to taking bribes and leaving a child to die in an unsafe home.
Although Haddock alleged that “all seven associate judges serve all seven district judges,” it’s difficult
to imagine a healthy working relationship between
Haddock and at least two of the judges, which, all else
being equal, makes her a less effective employee than
an associate judge who can work amicably with all
seven. Haddock also alleges that Baca-Bennett’s role
in the dispute “undermine[d] respect for [Haddock’s] judicial authority,” which presumably impacted Haddock’s
effectiveness on the bench, even when serving the remaining five judges.
Ultimately, although Haddock alleges she believed
Newell otherwise wished to retain her, she was left
with the impression that he felt “she would be difficult
to keep despite her qualifications due to the political
App. 35
situation.” In short, the political dispute disrupted Tarrant County family court operations, caused several of
the elected district judges to lose faith in Haddock’s
ability to do her job, impeded Haddock’s ability to assert her authority in court, and compromised her trustworthiness as an employee in the eyes of at least two
of the seven district judges she was duty-bound to
serve. The Elrod/Branti exception is not about labels
like “policymaker” or “confidential,” but about preventing precisely this type of disruption.
(3)
Finally, Haddock argues that some of the specific
First Amendment rights upon which she bases her
claims cannot be subject to Elrod/Branti analysis. Specifically, she argues that Elrod/Branti may apply to
reprisals for an employee who actively campaigns
against her superior, but—because the speech at issue
was her husband’s, not her own (she, allegedly, refused
to campaign for or against anyone)—she is being punished for her association with her spouse and for refusing to campaign. In other words, Haddock argues that
the First Amendment rights of intimate association
and freedom from compelled speech should not be subject to the Elrod/Branti exception.
Our precedent firmly establishes that Elrod/
Branti applies to refusal to speak. See, e.g., Stegmaier,
597 F.2d at 1030, 1040 (holding confidential employee
could be discharged for failing to support elected officeholder’s candidacy under Elrod). A policymaker who
App. 36
refuses to endorse a winning candidate may be discharged as readily as one who endorses a loser.
We also join the unanimous opinion of our sister
Circuits in holding that intimate association claims
can be subjected to Elrod/Branti analysis. See, e.g.,
Simasko v. Cnty. of St. Clair, 417 F.3d 559 (6th Cir.
2005); McCabe v. Sharrett, 12 F.3d 1558, 1572 (11th Cir.
1994); Soderbeck v. Burnett Cnty., 752 F.2d 285 (7th Cir.
1985) (Posner, J.). There may be reason to doubt the
effectiveness of either policymaking or confidential
employees when they are intimately associated with
an elected official’s political opponents.
Haddock refused to endorse Munford and indicated that she would take no action to curtail her husband’s campaigning. Her husband spent (or was
believed by Baca-Bennett to have spent) between
$30,000 and $300,000 campaigning against Munford.
Haddock’s husband appears to have campaigned
against Munford, at least in part, as a form of retaliation for Munford’s wife’s campaign against Haddock.
When a policymaker refuses to endorse a candidate,
her spouse spends or is believed to have spent a large
sum of money opposing the candidate, and there is
reason to believe the policymaker shares her spouse’s
animosity based on personal history, it is reasonable
for an elected official to doubt the policymaker’s political loyalty. See Soderbeck, 752 F.2d at 288 (“Mrs. Soderbeck was the political enemy of her husband’s political
enemy.”). As a policymaker, Haddock could be terminated, under these circumstances, for her husband’s
political activity because the District Judges had
App. 37
reason to doubt that she was committed to their policy
agendas or judicial philosophies—that is, the agendas
and philosophies chosen by the voters.
The case is even stronger that a confidential employee may be discharged for intimate associations
that cause an elected official to question the employee’s
loyalty. In McCabe, the Eleventh Circuit held that an
elected police chief could demote his confidential secretary to a non-confidential position because she was
married to one of his officers. McCabe did not involve
any allegations that the plaintiff had campaigned
against the new police chief or had ever violated his
trust. To the contrary, “[e]vidence produced by both
parties demonstrate[d]” that the plaintiff “actually
breached no confidences during the brief period she
served as” the defendant’s secretary, there was no reason to believe she had ever breached the prior chief ’s
confidences, and the odds her ever doing so “may not
have been overwhelming.” McCabe, 12 F.3d at 1572–73
& n.17. Nonetheless, her job required her to have access to the chief ’s confidential communications, including communications about personnel complaints and
officer discipline. If there were a complaint against her
husband or one of his colleagues, she would see it first.
The McCabe court reasoned that “[i]t is a matter of
common experience that spouses tend to possess a
higher degree of loyalty to their marital partners than
to their superiors, and often discuss workplace matters
with one another, even matters that a superior has designated as confidential.” Id. at 1572. The elected official
was uncomfortable “having the wife of an officer under
App. 38
[his] command function[ ] as [his] confidential Executive Secretary,” for fear (based on nothing more than
the fact of her marriage to her husband) that her loyalty would be elsewhere, so he was constitutionally
permitted to demote her. Id.
Similarly, here, as a matter of common experience
and the loyalty that spouses (hopefully) feel toward
one another, there is reason to believe that Haddock’s
loyalty would be to her husband first and to the District Judges second. So long as this created no conflict,
it was fine; when Haddock’s husband became several
judges’ fierce political enemy, it became a problem.
Consider, for example, the campaign allegation
that Munford did not adequately respect gun rights.
Assume, hypothetically, that it’s true. Judges have a
great deal of discretion with respect to protective orders. The voters chose Munford—and his judicial preferences. If, however, Munford wished to circulate a
memo to the associate judges indicating his preference
that, when he delegates a case to them, they exercise
their discretion broadly in favor of protective orders requiring litigants to surrender their firearms, he would
have to ask himself first whether he wanted to risk the
memo ending up in a campaign ad against him during
the next election cycle. He would have to consider that
one of the associate judges was married to his political
enemy, and any preferences he expressed, in confidence, might be repeated to someone who was looking
for ammunition to use against him in the next election.
A reasonable person in Munford’s position would question whether he could confidentially discuss, develop,
App. 39
or express policy, philosophy, or jurisprudential preferences to Haddock without undue personal risk.
The District Judges—Baca-Bennett and Munford
especially—had reason to doubt that they could trust
Haddock with confidential policy-related materials or
conversations. They had reason to doubt that she
agreed with their policy preferences, because her husband had campaigned against Munford, in part, on
policy grounds, and she had refused to attempt to curtail his campaigning or take a position herself. That
Haddock alleges she had not violated any confidences
or knowingly gone against any district judge’s policy
preferences is of no moment “because we do not require
employers to wait until their office is disrupted before
taking action.” Garza, 972 F.3d at 732. Haddock was in
a policymaking and confidential role, and, under the
Elrod/Branti exception, could constitutionally be discharged for the exercise of rights that would otherwise
by protected by the First Amendment.
B.
Haddock alleges that the district court erred by
dismissing her claims against Tarrant County. Although
Tarrant County, as a municipal entity, can be held liable under § 1983 when an “action pursuant to official
municipal policy of some nature caused a constitutional tort,” it “cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). For municipal liability
to attach, a plaintiff must prove “three elements: a
App. 40
policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or
custom.” Zarnow v. City of Wichita Falls, 614 F.3d 161,
166 (5th Cir. 2010) (quoting Piotrowski v. City of Hous.,
237 F.3d 567, 578 (5th Cir. 2001)).
As explained above, because the Elrod/Branti exception applies to Haddock’s claims, she has failed to
plead a constitutional violation. We therefore do not
need to examine whether she has pled a county policymaker or official policy. The district court correctly dismissed Haddock’s claims against Tarrant County.
C.
Haddock also takes issue with the district court’s
holding that Baca-Bennett has qualified immunity.
“Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (cleaned
up). These questions can be answered in either order.
Pearson v. Callahan, 555 U.S. 223, 242 (2009).
As explained above, Baca-Bennett did not violate
Haddock’s constitutional rights; this is enough for
Baca-Bennett to be entitled to qualified immunity.
Even if Haddock’s rights had been violated, however,
Baca-Bennett certainly did not have “fair warning that
[her] conduct violate[d] a constitutional right.” Clarkston v. White, 943 F.3d 988, 993 (5th Cir. 2019) (quoting
App. 41
Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir.
2018)). Closely on-point authority from our sister Circuits indicated that the Elrod/Branti exception applies
to positions very much like Haddock’s. See, e.g., Mumford, 105 F.3d 264. The case that Haddock primarily
relies on for the proposition that judges are categorically not policymakers was (1) decided in another Circuit (2) after Haddock’s termination and (3) was
reversed by the Supreme Court. See Adams, 141 S. Ct.
493. Baca-Bennett is entitled to qualified immunity.
IV.
CONCLUSION
The district court correctly held that Haddock, as
both a policymaker and a confidential employee, was
subject to the Elrod/Branti exception, and had therefore failed to allege a constitutional violation.
AFFIRMED.
JAMES C. HO, Circuit Judge, concurring in the judgment:
I concur in the judgment and agree with much of
what Judge Clement writes in her typically thoughtful
opinion. I write separately to make just one observation. As Judge Clement explains, the plaintiff in this
case should be afforded the same constitutional status
as those that our court and other courts have previously regarded as “confidential employees” under the
First Amendment. See, e.g., Garza v. Escobar, 972 F.3d
App. 42
721, 731 (5th Cir. 2020) (holding that a Crime Victims
Unit Coordinator was a confidential employee); Gentry
v. Lowndes Cnty., 337 F.3d 481, 488 (5th Cir. 2003)
(holding that a road manager and county administrator occupied confidential positions because the county
board of supervisors “must be assured of the trust and
loyalty of the road manager and administrator and
must be able to assume the confidentiality, when necessary, of their mutual dealings”); Kinsey v. Salado
Indep. Sch. Dist., 950 F.2d 988, 996 (5th Cir. 1992)
(holding that a school superintendent “occupied a confidential relationship” with the school board because
he was the custodian of the school’s confidential records and advised the board on confidential matters);
Soderstrum v. Town of Grand Isle, 925 F.2d 135, 141
(5th Cir. 1991) (holding that a police chief ’s secretary
was a confidential employee); Stegmaier v. Trammell,
597 F.2d 1027, 1040 (5th Cir. 1979) (holding that a deputy circuit clerk was a confidential employee). See also,
e.g., Mumford v. Basinski, 105 F.3d 264, 272 (6th Cir.
1997) (“Unquestionably, the inherent duties of an Ohio
domestic relations court referee entail a relationship
of confidence between the referee and the judge(s)
which he serves.”). It is on that basis that I would affirm. Accordingly, I concur in the judgment.
App. 43
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DIANE SCOTT HADDOCK, §
§
Plaintiff,
§
v.
§
TARRANT COUNTY, TEXAS,§
PATRICIA BACA-BENNETT, §
KENNETH EARL NEWELL, §
§
JESUS NEVAREZ, JR.,
§
HONORABLE JUDITH
§
WELLS, JEROME S
§
HENNIGAN, JAMES B
MUNFORD, and ALEX KIM, §
§
Defendants.
§
Civil Action No.
4:18-cv-00817-O
ORDER
(Filed Nov. 11, 2019)
Before the Court are Defendant Tarrant County’s
(“County”) Motion to Dismiss Plaintiff ’s Second
Amended Complaint (ECF No. 36) pursuant to Rule
12(b)(6) filed May 6, 2019, and Defendants Patricia
Baca-Bennett, Jerome S. Hennigan, Alex Kim, James
B. Munford, Jesus Nevarez, Jr., Kenneth Earl Newell,
and Judith Wells’ (collectively “Defendant Judges”)
Motion to Dismiss for Failure to State a Claim and for
Lack of Jurisdiction (ECF No. 38) pursuant to Rule
App. 44
12(b)(6) and Rule 12(b)(1) filed May 10, 2019.1 Having
considered the motions, responses, replies, pleadings,
and applicable law, the Court: GRANTS Defendant
Judges’ motion to dismiss pursuant to Rule 12(b)(1) in
part, GRANTS Defendant Judges’ motion to dismiss
pursuant to Rule 12(b)(6), and GRANTS Defendant
Baca-Bennett motion to dismiss based on qualified immunity. Finally, the Court GRANTS the County’s motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim.
I.
FACTUAL BACKGROUND
The following facts are drawn from Plaintiff ’s Second Amended Complaint, which is the live pleading.
See ECF No. 34, Sec. Am. Compl.
A. The Parties
Plaintiff Diane Scott Haddock was a family court
associate judge in Tarrant County, Texas and filed this
lawsuit on October 3, 2018 against Tarrant County, a
local governmental entity organized under the Texas
Constitution, and Defendant Judge Patricia Baca-Bennett (“Baca-Bennett”), individually and in her official
capacity as a district judge. Plaintiff also sues Judge
Kenneth Earl Newell (“Newell”), Judge Jesus Nevarez,
Jr. (“Nevarez”), Judge Judith Wells (“Wells”), Judge
Jerome S. Hennigan (“Hennigan”), Judge James B.
1
Defendant Baca-Bennett individually also moves for judgment on the basis of qualified immunity.
App. 45
Munford (“Munford”), and Judge Alex Kim (“Kim”)
all in their official capacities as district judges (collectively the district judges, including Patricia BacaBennett, “Defendant Judges”). She alleges all of the
defendants fired her in violation of her constitutional
rights and are therefore liable to her pursuant to 42
U.S.C. § 1983.
B. Facts
Plaintiff served as an appointed associate judge
from January 1999 to January of 2019. Sec. Am.
Compl. 7. Plaintiff served all seven family district
court judges who supervised her. Id. at 35. Tarrant
County paid Plaintiff ’s salary; offered her health and
life insurance; originally provided her with employee
orientation, employee handbook, and a Tarrant County
E-mail address; and provided facilities, technology,
equipment, and security to Plaintiff. Id. at 28. An associate judge in Texas has the power to “conduct hearings, compel production of relevant evidence, rule on
the admissibility of evidence, issue summonses, examine witnesses, make findings of fact, formulate conclusions of law, and enter final orders, and—at times—
even try cases on the merits.” Id. at 30. As an associate
judge, Plaintiff had no employees, no budget, no authority over when others work or do not work or how
any other person’s time off is characterized. Id. at 30.
Throughout 2018, Plaintiff was allegedly subjected to “badgering, threats, back-biting, undermining and maligning” for (1) her refusal to patronize a
App. 46
judicial candidate that Defendant Judge Baca-Bennett
endorsed and supported, (2) her refusal to stop her
husband from supporting said judicial candidate’s opponent, and (3) her refusal to stop her husband from
engaging in political speech advocating for the Second
Amendment. Id. at 6; see id. at 7–23. Plaintiff first
called Ms. Tina Glenn, Tarrant County’s Director of
Human Resources, who instructed Plaintiff that if anything else happened, to let HR know. Id. at 41. The
behavior continued, so Plaintiff filed a written complaint, and followed up by phone with Ms. Glenn who
told Plaintiff that she “can’t make people be nice.” Id.
Subsequently, Judge Glen Whitley called Plaintiff and
left a message. Id. Neither Ms. Glenn nor Judge Whitley indicated that Plaintiff ’s position was exempt from
First Amendment protection. Id. On or about May 18,
2018, Plaintiff delivered a letter to Judge Glen Whitley
and to Tarrant County’s HR Director detailing the conduct that had taken place. Id. Tarrant County took no
action in response to the previously stated notifications. Id. at 43. On October 3, 2018, Plaintiff filed this
lawsuit asserting her First Amendment rights had
been violated, and on January 7, 2019, Plaintiff ’s employment was terminated. Id. at 23. Plaintiff was notified of her termination by Judge Newell and was given
no reason for the termination, but Plaintiff received an
Order of Termination which was signed by a majority
of the seven Tarrant County Family Court District
Judges the previous Friday, January 4, 2019. Id.
App. 47
II.
LEGAL STANDARDS
A. Federal Rules of Civil Procedure 8(a)
Federal Rule of Civil Procedure 8(a) requires a
plaintiff ’s pleading to include “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a plaintiff fails to satisfy Rule 8(a), the defendant may file a
motion to dismiss the plaintiff ’s claims under Federal
Rule of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief may be granted.” Fed. R. Civ. P.
12(b)(6).
B. Federal Rule of Civil Procedure 12(b)(6)
To defeat a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S.
at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
App. 48
at 556). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S.
at 557).
In reviewing a Rule 12(b)(6) motion, courts must
accept all well-pleaded facts in the complaint as true
and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d
673, 675 (5th Cir. 2007). Courts are not bound to accept
legal conclusions as true, and only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Iqbal, 556 U.S. at 678. When there are wellpleaded factual allegations, courts assume their veracity and then determines whether they plausibly give
rise to an entitlement to relief. Id. at 679. However,
they do not accept as true “conclusory allegations, unwarranted deductions, or legal conclusions.” Southland
Secs. Corp. v. INSpire Ins. Sols, Inc., 365 F.3d 353, 361
(5th Cir. 2004).
“Generally, a court ruling on a 12(b)(6) motion may
rely on the complaint, its proper attachments, documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.”
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757,
763 (5th Cir. 2011) (citations and internal quotation
marks omitted). Likewise, a court may consider documents that a defendant attaches to a motion to dismiss
if they are referred to in the plaintiff ’s complaint and
are central to the plaintiff ’s claims. Collins v. Morgan
App. 49
Stanley Dead Witter, 224 F.3d 496, 498–99 (5th Cir.
2000).
C. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the
Federal Rules of Civil Procedure challenges a federal
court’s subject matter jurisdiction. See Fed. R. Civ. P.
12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they
lack the power to adjudicate claims. See Stockman v.
Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir.
1998). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing
Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.
1977) (per curiam)). Considering Rule 12(b)(1) motions
first “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id. When the
court dismisses for lack of subject matter jurisdiction,
that dismissal “is not a determination of the merits
and does not prevent the plaintiff from pursuing a
claim in a court that does have proper jurisdiction.” Id.
The Fifth Circuit recognizes a distinction between
a “facial attack” and a “factual attack” upon a complaint’s subject matter jurisdiction. Rodriguez v. Tex.
Comm’n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex.
1998), aff ’d, 199 F.3d 279 (5th Cir. 2000). “A facial attack requires the court merely to decide if the plaintiff
App. 50
has correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the complaint,
which are presumed to be true. Id. (citation omitted).
If the defendant supports the motion with evidence,
however, then the attack is “factual” and “no presumptive truthfulness attaches to the plaintiff ’s allegations,
and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of jurisdictional claims.” Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981). Regardless of the
attack, “[t]he plaintiff constantly bears the burden of
proof that jurisdiction does exist.” Rodriguez, 992
F. Supp. at 879 (“The burden of proof for a Rule 12(b)(1)
motion to dismiss is on the party asserting jurisdiction.”) (citations omitted).
D. Section 1983 Claims
Section 1983 “provides a federal cause of action for
the deprivation, under color of law, of a citizen’s ‘rights,
privileges, or immunities secured by the Constitution
and laws’ of the United States.” Livadas v. Bradshaw,
512 U.S. 107, 132 (1994). It “afford[s] redress for violations of federal statutes, as well as of constitutional
norms.” Id. To state a claim under § 1983, a plaintiff
must allege facts that show: (1) Plaintiff has been deprived of a right secured by the Constitution and the
laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155 (1978); Whitley v. Hanna, 726
F.3d 631, 638 (5th Cir. 2013); Cornish v. Corr. Servs.
Corp., 402 F.3d 545, 549 (5th Cir. 2005).
App. 51
In their individual capacity, Government officials
“are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct
was clearly established at the time.” District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 589 (2018)
(internal quotation marks omitted). Courts are “permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). “The plaintiff has
the burden to point out the clearly established law.”
Clarkston v. White, ___ F.3d ___, 2019 WL 5485558 (5th
Cir. 2019) (citing Delaughter v. Woodall, 909 F.3d 130,
139 (5th Cir. 2018)). “Clearly established law is determined by controlling authority—or a robust consensus
of persuasive authority—that defines the contours of
the right in question with a high degree of particularity.” Id. (internal quotation marks omitted). “This
means the contours of the right must be sufficiently
clear that a reasonable official would understand that
what he is doing violates that right, although it is
not necessary for controlling precedent to have held
that the official’s exact act was unlawful.” Id. (citing
Delaughter, 909 F.3d at 139–40) (internal quotation
marks omitted). Ultimately, the “central concern is
whether the official has fair warning that his conduct
violates a constitutional right.” Id. (citing Delaughter,
909 F.3d at 140) (internal quotation marks omitted).
App. 52
III. ANALYSIS
The County and Defendant Judges have moved to
dismiss Plaintiff ’s § 1983 claim.2 The Court first considers whether Judge Baca-Bennett, sued in her individual capacity, is entitled to qualified immunity.
A. Judge Baca-Bennett and Qualified Immunity
Judge Baca-Bennett is entitled to qualified immunity because at the time of her termination, Plaintiff has failed to show that clearly established law
prevented terminating the employment of an associate
judge for patronage reasons.
No Fifth Circuit decision has decided whether a
Texas associate judge was subject to a patronage dismissal. While Plaintiff is not required to identify a
case precisely on point, she must show the law has adequately defined the contours of the right such that
policy makers were sufficiently on notice. Zulema Longoria v. San Benito Indep. Sch. Dist. et al, ___ F.3d ___
No. 18-41060 2019 WL 5687512, at *3 (5th Cir. 2019)
(citing Porter v. Ascension Parish Sch. Bd., 393 F.3d
608, 618 (5th Cir. 2004); Anderson v. Creighton, 483
U.S. 635, 640 (1987). “If, at the time of the events
2
To the extent that Plaintiff is suing the Defendant Judges
in their official capacities, an official capacity claim is merely another way of pleading an action against the entity of which the
individual defendant is an agent. See Kentucky v. Graham, 473
U.S. 159, 165 (1985). Thus, Plaintiff’s allegations against Defendant Judges in their official capacities are claims against Tarrant
County. See id.
App. 53
underlying the litigation, insufficient precedent existed to provide [defendants] with fair warning that
the defendants’ conduct violated the First Amendment,
the defendants are entitled to qualified immunity.” Zulema Longoria, 2019 WL 5687512, at *3 (quoting Jackson v. Ladner, 626 F. App’x 80, 88 (5th Cir. 2015)
(internal quotations omitted).
The Fifth Circuit has held assistant district attorneys, county road managers, and school superintendents are subject to patronage dismissals. See
generally Gentry v. Lowndes County, 337 F.3d 481 (5th
Cir. 2003) (county road manager); Aucoin v. Haney, 306
F.3d 268 (5th Cir. 2002) (assistant district attorney);
Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988 (5th
Cir. 1992) (school superintendent). And the Sixth Circuit has held a court referee, whose job description is
similar to that of an associate judge, is subject to patronage dismissal. Mumford v. Basinski, 105 F.3d 264,
273 (6th Cir. 2997). While no case is on point, the court
referee position comes close to the associate judge position and it provides authority to terminate Plaintiff
in this context. But in any event, no case is close to
providing that the position of an associate judge is different than these such that it was clearly established
that an associate judge could not be terminated on this
basis. Accordingly, Judge Baca-Bennett is entitled to
qualified immunity and Plaintiff ’s claims against
Judge Baca-Bennett in her individual capacity are
hereby DISMISSED with prejudice.
App. 54
B. Judges in Their Official Capacity
The Court next considers the motion to dismiss
filed by the Defendant Judges in their official capacity.
They have moved to dismiss Plaintiff ’s claims for lack
of subject matter jurisdiction under the Eleventh
Amendment and because she has failed to state a claim
under Rule 12(b)(6). They do not support their subject
matter jurisdiction motion with evidence and thus
present a facial attack. See generally Defs.’ Mot. to
Dismiss, ECF No. 38. The Court therefore presumes
Plaintiff ’s allegations in her complaint against Defendant Judges to be true and must decide whether she
has correctly alleged a basis for subject matter jurisdiction. Rodriguez, 992 F. Supp. at 878.
1. Eleventh Amendment
The Eleventh Amendment to the United States
Constitution bars private suits in federal court against
states—including state agencies—unless the state has
waived, or Congress has abrogated, the state’s sovereign immunity. Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54 (1996); see also U.S. Const. amend. XI (“The
Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.”). Section 5 of the Fourteenth
Amendment to the United State Constitution “authorizes Congress to create a cause of action through which
the citizen may vindicate his Fourteenth Amendment
App. 55
rights.” United States v. Georgia, 546 U.S. 151, 158
(2006) (citation omitted). “This enforcement power includes the power to abrogate state sovereign immunity
by authorizing private suits for damages against the
States.” Id. at 158–59.
An exception to immunity exists when a plaintiff
simply seeks to prohibit a state official from violating
federal law. The Ex parte Young exception to sovereign
immunity provides that “when a federal court commands a state official to do nothing more than refrain
from violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to
that precise situation, and does not apply when the
state is the real, substantial party in interest.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255
(2011); see also Ex parte Young, 209 U.S. 123 (1908).
According to Virginia Office, “[i]n determining whether
the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a
straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.” 563 U.S.
at 256 (citing Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 636 (2002) (internal quotations
omitted)).
If the Defendant Judges are employees of the
State, it appears Plaintiff concedes she is not entitled
to recover damages against them because of sovereign
immunity as she does not contest this proposition in
her briefing. See Pl.’s Resp. to Def.’s Mot. to Dismiss 3,
ECF No. 41 (asserting she is entitled to recover
App. 56
equitable reinstatement). And the Defendant Judges
do not appear to contest that she may, consistent with
the Eleventh Amendment, be entitled to equitable reinstatement, as they do not respond to it in their Reply. See generally Def. Judges’ Reply, ECF No. 43. The
County’s Motion is GRANTED because, as discussed
in response to the County’s motion below, the Defendant Judges are State officials so that Plaintiff may not
recover money damages pursuant to the Eleventh
Amendment. And, for the reasons that will be addressed next, Plaintiff has also failed to state a claim
for retaliatory discharge as required by Rule 12(b)(6).
2. Failure to State a Claim
The Defendant Judges argue that Plaintiff ’s claim
for retaliatory discharge fails because she could be
removed at will as a patronage and confidential employee. “It is well settled that the Constitution prohibits a government employer from discharging or
demoting an employee because the employee supports
a particular political candidate. . . .” Griggs v. Chickasaw County, 930 F.3d 696, 703 (5th Cir. 2019) (quoting
Moss v. Harris County. Constable Precinct One, 851
F.3d 413, 421 (5th Cir. 2017)) (internal quotations omitted). An exception exists however for employees who
hold policy making or confidential positions. See Branti
v. Finkel, 445 U.S. 507, 517–18 (1980).
“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must
show: (1) she suffered an adverse employment action;
App. 57
(2) she spoke as a citizen on a matter of public concern;
(3) her interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse
employment action.” Id. (citing Moss, 851 F.3d at 420–
21 (quoting Anderson v. Valdez, 845 F.3d 580, 590 (5th
Cir. 2016))). The failure to establish each element
dooms Plaintiff ’s claim. See Moss, 851 F.3d 420–21 (affirming a finding that speech was not protected because the plaintiff failed to satisfy the second element);
Wilson v. Tregre, 787 F.3d 322, 325–326 (5th Cir. 2015)
(holding that speech was not protected because the
plaintiff failed to satisfy the third element) Nixon v.
City of Houston, 511 F.3d 494, 499, 501 (5th Cir. 2007)
(finding that the speech was not protected because the
plaintiff failed to satisfy the third element). In this
case, all defendants contend Plaintiff ’s claim fails at
the third element: the balance between the government’s interests and Plaintiff ’s interests.
Courts apply a case-by-case balancing test and
“compare ‘an employee’s interest in commenting upon
matters of public concern’ and ‘the interest of the State
in promoting the efficient delivery of public services.’ ”
Id. (citing Wiggins v. Lowndes County., 363 F.3d 387,
390 (5th Cir. 2004)). “The key factor in the balancing
test is whether political allegiance is an appropriate
requirement for the effective performance of the public
office involved.” Id. (citing Wiggins, 363 F.3d at 390)
(internal quotations omitted). The “court more readily
finds that the government’s interests outweigh the employee’s interests where the employee is a policymaker
App. 58
for purposes of the First Amendment.” Id. (citing Wiggins, 363 F.3d at 390) (internal quotations omitted).
A policymaker is “an employee whose responsibilities require more than simple ministerial competence,
whose decisions create or implement policy, and whose
discretion in performing duties or in selecting duties to
perform is not severely limited by statute, regulation,
or policy determinations made by supervisors.” Wiggins, 363 F.3d at 390. The court should also consider
“whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” Id.
(citing Elrod v. Burns, 427 U.S. 347, 368 (1976)). Additionally, “[a]n employee is confidential if he or she
stands in a confidential relationship to the policymaking process, e.g., as an advisor to a policymaker, or if he
or she has access to confidential documents or other
materials that embody policymaking deliberations and
determinations,” or if he or she is in a position to subject an elected official to personal liability. Id. (citing
Stegmaier v. Trammell, 597 F.2d 1027, 1040 (5th Cir.
1979)).
In this case, the Defendant Judges contend that
Plaintiff held a policymaking and confidential position
as an associate judge for which their trust in the associate judge’s loyalty was required. While the Fifth Circuit’s decisions have not dealt with the status of an
associate judge, it has opined on other positions and
described the general parameters of such high-level
policymaking and confidential employment.
App. 59
In Aucoin v. Haney, the Fifth Circuit held that the
assistant district attorney position required political
loyalty and was subject to patronage dismissal, reasoning that an assistant district attorney was vested “with
broad discretionary powers.” 306 F.3d at 275 (relying
on the state constitution, which stated the assistant
district attorney had the same responsibilities as the
district attorney, that assistant district attorneys were
appointed by the district attorney and served at the
pleasure of the district attorney, and that the actions
of an assistant district attorney could bind the state).
Two other cases illustrate contrasting positions that
were held to require or not require political loyalty,
with the result that the political officials could or could
not terminate employees for their political activity, respectively. Compare Gentry, 337 F.3d at 487–88 (holding that a county road manager, the second highest
non-elected county management position, may be fired
for political opposition), with Wiggins, 363 F.3d at 391–
92 (holding that a county road foreman merely implemented policy and may not be terminated for political
reasons). Other circuits have addressed this balancing
test and held various positions required political loyalty and were not protected from political dismissals
under the First Amendment.3
3
Aucoin, 306 F.3d at 275 (“See, e.g., Butler v. New York State
Dept. of Law, 211 F.3d 739, 741 (2d Cir. 2000) (Deputy Bureau
Chief of the Litigation Department at the New York State Department of Law); Biggs v. Best, Best & Krieger, 189 F.3d 989 (9th Cir.
1999) (attorney with private law firm that performed services of
city attorney); Bavaro v. Pataki, 130 F.3d 46, 47 (2d Cir. 1997)
(associate counsel and assistant counsel in the New York State
App. 60
Moreover, the Court finds persuasive the Sixth
Circuit’s decision in Mumford v. Basinski, which concluded that a court referee was an inherently political
position not protected from political patronage termination by the First Amendment. 105 F.3d at 273. The
court referee’s powers included “the conduct of hearings on the matters referred to him, the issuance of
subpoenas, the swearing and examination of witnesses, and (unless otherwise specified in the order of
reference) the promulgation of evidentiary rulings and
the entry of certain pretrial, discovery, temporary restraining, and other orders necessary to regulate the
proceedings,” all without ratification of the supervisory
judge. Id. at 272 (citing Ohio R. Civ. P. 53(C)(2) & (3)).
The court further stated that the referee’s decisions
were otherwise “mere recommendations which [became] effective only upon adoption by the court.” Id.
(citing Ohio R. Civ. P. 53(E)(4)(a)).
Department of Health, Division of Legal Affairs, Bureau of Professional Medical Misconduct); Fazio v. City & County of San
Francisco, 125 F.3d 1328 (9th Cir. 1997) (assistant district attorney); Gordon v. County of Rockland, 110 F.3d 886, 890-892 (2d
Cir.) (assistant county attorneys), cert. denied, 522 U.S. 820 . . .
(1997); Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991) (assistant
prosecuting attorneys); Williams v. City of River Rouge, 909 F.2d
151 (6th Cir. 1990) (city attorney); Livas v. Petka, 711 F.2d 798
(7th Cir. 1983) (assistant state attorney to a public prosecutor);
Mammau v. Ranck, 687 F.2d 9 (3d Cir. 1982) (assistant district
attorney); Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981) (city solicitor and assistant city solicitor); Newcomb v. Brennan, 558 F.2d
825 (7th Cir.) (deputy city attorney), cert. denied, 434 U.S. 968 . . .
(1977); Bauer v. Bosley, 802 F.2d 1058 (8th Cir. 1986) (staff legal
assistant in office of clerk of circuit court), cert. denied, 481 U.S.
1038 . . . (1987).”).
App. 61
The court in Mumford reasoned that the inherent
duties of a court referee entailed a relationship of confidence between the referee and the judges he served,
and it pointed out that the “referee [was] privy to confidential litigation materials and internal court communications in the discharge of his duties, and further
maintain[ed] a personal confidential relationship
with the judge(s) which he serve[d].” Id. (citing Blair v.
Meade, 76 F.3d 97, 101 (6th Cir. 1996) and Balogh v.
Charron, 855 F.2d 356, 356 (6th Cir. 1988)). Further,
the court stated that the “referee effectively ma[d]e
policy for, or suggest[ed] policy to, the court on each
occasion that he resolve[d] a dispute in the court’s
name or recommend[ed] a disposition to a judge.” Id.
Concluding that a supervising judge needed to be confident in the referee’s judgment capabilities, and that
the confidentiality of the relationships arising as a result of judicial discussions was unquestionable, the
court found that the referee’s political ideology, associations, and activities could influence a judge’s assessment of a person’s suitability for the position as his
referee. Id.
In this case, the duties for an associate judge can
be found in the Texas Family Code, which provides:4
Cases That May Be Referred. (a) . . . a
judge of a court may refer to an associate
4
Because the duties of an associate judge are set out in the
Texas Family Code, the Court looks to the statute for the relevant
job description.
App. 62
judge any aspect of a suit over which the court
has jurisdiction under this title . . .
Powers of Associate Judge. (a) Except as
limited by an order of referral, an associate
judge may: (1) conduct a hearing; (2) hear
evidence; (3) compel production of relevant
evidence; (4) rule on the admissibility of evidence; (5) issue a summons . . . (6) examine a
witness; (7) swear a witness for a hearing;
(8) make findings of fact on evidence; (9) formulate conclusions of law; (10) recommend an
order to be rendered in a case; (11) regulate
all proceedings in a hearing before the associate judge; (12) order the attachment of a witness or party who fails to obey a subpoena;
(13) order the detention of a witness or party
found guilty of contempt, pending approval by
the referring court . . . (14) without prejudice
to the right to a de novo hearing before the referring court . . . render and sign: (A) a final
order agreed to in writing as to both form and
substance by all parties; (B) a final default order; (C) a temporary order; or (D) a final order
in a case in which a party files an unrevoked
waiver . . . that waives notice to the party of
the final hearing or waives the party’s appearance at the final hearing; (15) take action as
necessary and proper for the efficient performance of the associate judge’s duties; and (16)
render and sign a final order if the parties
waive the right to a de novo hearing before the
referring court . . . in writing before the start
of a hearing conducted by the associate judge.
App. 63
Tex. Fam. Code. §§ 201.005; 201.007. The job duties of
the referee in Mumford are very similar to those of a
Texas associate judge. While Plaintiff argues that her
case is distinguishable from Mumford in that she
served all seven district judges rather than just one,
that is insufficient to distinguish the Sixth Circuit’s
reasoning. A court referee served at the pleasure of the
appointing judge; and in this case, an associate judge
does the same, and if she serves multiple courts, she
serves at the pleasure of those courts she serves.5 Just
as in Mumford, the associate judge’s inherent duties,
listed above, show a relationship of confidence between
the associate and district judges. See Tex. Fam. Code
§ 201.007. Implicit to these statutory job duties, an associate judge is privy to both confidential litigation materials and internal court communications regarding
cases. Necessarily, an associate judge suggests policy
to the district judge on each occasion that she recommends an order to be rendered in a case, and she effectively makes policy when she renders and signs a final
order. As a consequence, the district judges that supervise the associate judges must “be convinced that the
judgment capabilities of the [associate judge], and the
confidential relationships that arise as a result of the
5
TEX. FAM. CODE §§ 201.001(d) (“Appointment. . . . if an associate judge serves more than one court, the associate judge’s appointment must be made with the unanimous approval of all the
judges under whom the associate judge serves.”); 201.004(b)
(“Termination of Associate Judge. . . . The employment of an associate judge who serves more than two courts may only be terminated by a majority vote of all the judges of the courts which
the associate judge serves.”).
App. 64
intimate judicial and quasi-judicial discussion, are
unquestionable.” Id. at 272. Therefore, an associate
judge’s political ideology, associations, and activities
may rationally influence a district judge’s assessment
of the individual’s suitability for a position as an associate judge. Accordingly, Plaintiff ’s previous position as
an associate judge was subject to patronage dismissal.
The Defendant Judge’s motions to dismiss for
failure to state a claim is therefore GRANTED, and
Plaintiff ’s § 1983 claims against Defendant Judges are
DISMISSED.
C. Defendant Tarrant County
The County moves to dismiss Plaintiff ’s § 1983
claims arguing that Plaintiff failed to state a constitutional deprivation under the First Amendment because she was a policymaker and held a position of
confidence. The County’s motion on this basis is
granted for the same reasons set out above pursuant
to the Defendant Judges’ Rule 12(b)(6) Motion. The
County also argues that as a matter of law Defendant
Judges were not acting as county policymakers, and
Plaintiff is impermissibly seeking to hold the County
vicariously liable for the District Judges’ actions.
Section 1983 does not allow a municipality to be
held vicariously liable based on a theory of respondeat
superior. 42 U.S.C. § 1983; see Bd. of Cty. Commis of
Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). Rather,
a municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff
App. 65
of her constitutional rights. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690–91 (1978). The Fifth Circuit
has consistently held that three elements must be
proven to establish liability against a municipality under Monell: “(1) an official policy (2) promulgated by
the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” HicksFields v. Harris County, 860 F.3d 803, 808 (5th Cir.
2017) (citing Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009) (citing Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001))); see also
Bowden v. Jefferson County, 676 F. App’x. 251, 253 (5th
Cir. 2017).
Plaintiff summarizes her allegations relating to
First Amendment violations in response to the Defendant County’s motion to dismiss, as follows:
Throughout 2018, Defendant Tarrant County—
[Plaintiff ] Diane’s primary employer—consciously and repeatedly refused to protect
Diane from First Amendment retaliation.
Tarrant County refused to protect Diane
even though [Defendant Judge] Baca-Bennett’s retaliatory activity was overt and public. It refused despite reports from Diane
that it was occurring, illegal, and debilitating, and despite Diane’s plea for Tarrant
County’s intervention. Tarrant County’s policymakers refused to enforce Tarrant County’s
own written policy, which promises to protect all Tarrant County employees from
First Amendment retaliation by elected officials or persons who regularly do business
App. 66
with Tarrant County.[ ] Alternatively, Tarrant
County has an unwritten policy and custom of
excluding its associate judge-employees from
First Amendment protection.
On October 3, 2018, Diane filed this lawsuit
asserting her First Amendment rights. BacaBennett and Tarrant County were served
with process on October 10, 2018 and October
11, 2018. Less than ninety (90) days later, Diane’s employment was terminated by a bare
majority of the family court district judges.
Diane’s Second Amended Complaint alleges
her termination was a further violation of her
First Amendment rights, either because BacaBennett’s campaign to get Diane fired was ultimately successful, or because the district
judges—with Tarrant County’s acquiescence
and support—retaliated against Diane for filing this lawsuit. Tarrant County agreed with
and shared the judges’ unlawful motives and
unconstitutional actions.
Pl.’s Resp. to County Def.’s Mot. to Dismiss 6–7, ECF
No. 40 (internal citation omitted).
In support of their motion to dismiss, Defendant
Tarrant County argues:
“On Monell’s policymaker element, the County
cannot be held liable for the acts of independently-elected state district judges. On the
[policy or custom] Monell element, Diane has
not identified a plausible County policy or custom at issue, and Diane has not and cannot
state a plausible claim based on the County
App. 67
failing to protect Diane from state district
judges—persons who the County does not
control. [On the third Monell element], Diane has not pleaded—and cannot plead—a
viable First Amendment violation because associate judges fall within the exceptional class
of public servants of whom political allegiance
may be demanded, such that Diane was subject to a patronage dismissal. Diane’s conspiracy claim is, likewise, not viable.”
Def. County’s Reply 12, ECF No. 42.
Having carefully considered the 50-page Second
Amended Complaint, the parties’ legal briefs, and the
governing law, and even assuming that Plaintiffs have
alleged an underlying constitutional violation, the
Court finds that Plaintiff has failed to adequately allege that the County had a custom or policy, promulgated by a county policymaker, that resulted in a
deprivation of Plaintiff ’s constitutional rights under
the First Amendment.
Who qualifies as a policymaking official is a question of state law. McMillian v. Monroe County, 520 U.S.
781, 786 (1997); Jett v. Dall. Indep. Sch. Dist., 491 U.S.
701, 737 (1989) (citing City of St. Louis v. Praprotnik,
485 U.S. 112, 123 (1988) (plurality opinion)); Pembaur,
475 U.S. at 483. “[T]he specific identity of the policymaker is a legal question” and need not be pled.6 The
6
Zulema, 2019 WL 5687512, at *8 (stating that “plaintiffs
can state a claim for municipal liability as long as they plead sufficient facts to allow the court to reasonably infer that the [municipality] either adopted a policy that caused [plaintiff ’s] injury
App. 68
identification of those “officials or governmental bodies
who speak with final policymaking authority for the
local governmental actor [whose] action alleged to
have caused” the constitutional violation is not a question of fact and must be resolved by the court by reviewing “relevant legal materials, including state and
local positive law, as well as ‘custom or usage having
the force of law.’ ” Jett, 491 U.S. at 737; Praprotnik, 485
U.S. at 124. It is not dispositive that the state labels a
position as a policymaker, but the court’s “understanding of the actual function of a governmental official, in
a particular area, will [depend] on the definition of the
official’s function under relevant state law.” McMillian,
520 U.S. at 786 (citing Regents of Univ. of Cal. v. Doe,
519 U.S. 425, 429, n.5 (1997). The Court must determine whether the policymaker acts for the state or the
county by identifying the government officials who
have the power to make official policy in a particular
area, or on a particular issue. McMillian, 520 U.S. at
785 (citing Jett, 491 U.S. at 738).
In Plaintiff ’s Second Amended Complaint, Plaintiff alleges the County had a policy that effectively delegated its policymaking authority to the district judges
“regarding the work environment Tarrant County employees must endure, including any hostile, intimidating or offensive work environment arising out of the
or delegated to a subordinate officer the authority to adopt such a
policy,” (citing Groden v. City of Dallas, 826 F.3d 280, 284, 286
(5th Cir. 2016)) further stating that “[a] municipality can be held
liable only when it delegates policymaking authority, not when it
delegates decisionmaking authority” (citing Pembaur, 475 U.S. at
480–81) (emphasis in original)).
App. 69
requirement[,] that [the] associate judge[ ] refus[ed,] to
participate in political service or related activity,” concluding that this made the district judges county policymakers. Sec. Am. Compl. 40, ECF No. 34 (internal
quotations omitted). Further, in response to Defendant
County’s motion to dismiss, Plaintiff points to paragraphs 57–59 of the Second Amended Complaint as
sufficient allegations of “decisions by [Plaintiff ’s] employer and its policymakers” that resulted in a violation of her constitutional rights. Pl.’s Resp. to County
Def. Mot. to Dismiss 20, ECF No. 40. In support of their
motion to dismiss, the County alleges, that “none of the
elected state district court judges is a Monell countylevel policymaker, and, therefore, Tarrant County cannot be liable for the district judges’ appointment or termination decisions or judicial conduct toward their
political appointees.” Def. County’s Mot. to Dismiss 24,
ECF No. 36 (internal citations omitted) (emphasis in
original). The County further argues that “whether one
is a Monell policymaker is a question of law, and Diane’s allegations of who is a County policymaker need
not be taken as true.” Def. County’s Reply 7, ECF No.
42.
To determine whether one is a final policymaker,
the focus is not on whether the official is a policymaker
in general, but rather if the official is the final policymaker with respect to the specific action at issue.
Brady v. Fort Bend County, 145 F.3d 691, 699 (5th Cir.
1998). The appropriate inquiries in this case are, first,
whether the Defendant Judges are the final policymakers with respect to the specific action at issue
App. 70
here—terminating an associate judge—and second, if
Defendant Judges were the final policymakers, whether
they were acting as county or state policymakers with
respect to the termination of an associate judge.
Beginning with the first question, the Texas Family Code governs the termination of an associate judge
through § 201.004, which states in relevant part that
“[t]he employment of an associate judge who serves
more than two courts may only be terminated by a
majority vote of all the judges of the courts which the
associate judge serves.” Tex. Fam. Code § 201.004. Additional legislation can be found in Texas Local Government Code § 151.004 which states that “[t]he
commissioners court . . . may not attempt to influence
the appointment of any person to an employee position
authorized by the court under this subchapter.” Tex.
Loc. Gov’t Code. § 151.004. The statutory authority to
appoint or terminate an associate judge is therefore
vested solely in the judges of the courts in which the
associate judge serves, and the Local Government
Code expressly prohibits even an attempt by the
county to interfere with the appointment/termination
process. Similar to the facts of Brady, the Texas district
judges must apply to the County Commissioners Court
for authorization to appoint an associate judge, and the
County Commissioners Court is prohibited from interfering with who holds that appointment. Applying the
Fifth Circuit’s reasoning in finding the sheriff a final
policymaker in Brady v. Fort Bend County, this Court
App. 71
finds that Defendant Judges were the final policymakers for this particular issue.7
Turning to the question of which entity they are
policymakers for, the Supreme Court in McMillian
held that the defendant there represented the state,
rather than the county, regarding the actions taken
against plaintiff in that case. 520 U.S. at 791. The Supreme Court explained that although the county “ha[d]
no direct control over how the [defendant sheriff ] fulfill[ed] his law enforcement duty, the Governor and
the attorney general [did] have this kind of control.”
Id. Accordingly, it affirmed the dismissal of McMillian’s § 1983 claims against the county because the defendant sheriff was not acting as a county policymaker,
but as a state policymaker. Id. at 793, 796. In coming
to this determination, the Supreme Court looked to the
state constitution and the state courts’ interpretation
of the relevant provisions under state law and concluded that the defendant sheriff represented the
state when acting in a law enforcement capacity. Id.
at 787–91. Under state law, the county had no law
enforcement authority; so tort claims brought against
the defendant sheriffs, based on their official acts,
7
Brady is not instructive on whether the actor is a state or
county policymaker because in Brady the county did not raise the
argument that the defendant sheriff was acting as a state policymaker rather than a county policymaker, so the court did not address that issue. 145 F.3d at 702 n.4. In this case however, the
County raises the issue. To resolve this issue, the Court looks to
the decision in McMillian, 520 U.S. 781.
App. 72
constituted suits against the state and not against the
county. Id. at 789.
Following the guidance in McMillian, this Court
begins with the Texas Constitution. As Defendant Tarrant County correctly states in its motion to dismiss,
under the Texas Constitution, the legislative and executive branches of the Texas government are separate.
Tex. Const. art. II, § 1. District courts are vested with
judicial power through Article V and are comprised of
“district judges, who are undeniable elected state officials.” Clark v. Tarrant County, 798 F.2d 736, 744 (5th
Cir. 1986) (internal citation omitted); Tex. Const. art. V,
§ 7. Through Article V, the Texas Constitution further
vests authority to supervise the district courts in the
Texas Supreme Court, making it responsible for the
“efficient administration of the judicial branch,” specifically for promulgating rules of administration and enforcing the Code of Judicial Conduct. Tex. Const. art. V,
§§ 1-a (regarding discipline and removal of state
judges for violation of rules promulgated by the Supreme Court of Texas and the Code of Judicial Conduct; State Commission on Judicial Conduct), 31(a)
(vesting responsibility for the efficient administration
of the judicial branch in the Supreme Court of Texas).8
8
TEX. CODE JUD. CONDUCT, reprinted in TEX. GOV’T CODE, tit.
2, subtit. G, app. B; TEX. R. JUD. ADMIN., reprinted in TEX. GOV’T
CODE, tit. 2, subtit. F app.; In re Slaughter, 480 S.W.3d 842 (Tex.
Spec. Ct. Rev. 2015) (involving complaint of improper social media comments); In re Hecht, 213 S.W.3d 547 (Tex. Spec. Ct. Rev.
2006) (involving complaint of wrongful endorsement of federal judicial nominee); In re Barr, 13 S.W.3d 525 (Tex. Spec. Ct. Rev.
App. 73
The district courts themselves have “appellate jurisdiction and general supervisory control over the
County Commissioners Court,” with some exceptions.
Tex. Const. art. V, § 8. On the other hand, the County
Commissioners Court may not even attempt to influence the appointment of any person to an associate
judge. Garcia v. Reeves County, 32 F.3d 200, 203 (5th
Cir. 1994) (citing Texas Local Government Code
§ 151.004 when finding that “[i]n Texas, employees of
any elected official serve at the pleasure of the elected
official”).
Just as in McMillian, the control over the particular action at issue is vested somewhere other than the
County, and under Texas law, the County had no authority over how Defendant Judges exercised their appointment powers and conduct. Thus, claims brought
against Defendant Judges for these acts, constitute
suits against the state and not against the county. See
McMillian, 520 U.S. at 789. While the County has no
direct control over how the Defendant Judges exercise their appointment powers and conduct with regard to their associate judges, the Supreme Court of
Texas does. To this, Plaintiff counters that the County,
through its “power of the purse,” could influence district judges’ treatment of their employees. Pl.’s Resp. to
Def.’s Mot. to Dismiss 22–23, ECF No. 40. But this
would violate the local government code. See Tex. Loc.
Gov’t. Code § 151.004. The Texas Supreme Court has
stated that, were the County to attempt to influence
1998) (involving complaint of inappropriate sexual harassment of
and conduct toward attorneys and litigants).
App. 74
the district judges’ appointment, the district judges
could seek to exercise their supervisory authority over
the County Commissioners Court. Henry v. Cox, 520
S.W.3d 28, 36 (Tex. 2017) (citing TEX. CONST. art V, § 8).
In her response to the County’s motion to dismiss,
Plaintiff alleges only in a conclusory manner that the
Defendant Judges were “Tarrant County’s policymakers.” However, when alleging actions taken by people
she labeled as “policymakers,” she does not allege any
law that would indicate that the Defendant Judges
were in fact acting as county policymakers. This Court
finds that Defendant Judges were acting as state, rather than county, final policymakers regarding their
conduct and appointment powers over the associate
judges. Accordingly, after considering the Second
Amended Complaint, the parties’ legal briefs, and the
governing law, the Court finds that the County cannot
be held liable for the Defendant Judges’ actions regarding the conduct and appointment powers over Plaintiff
such that her claim against the County are DISMISSED with prejudice for failure to state a claim.
IV. AMENDED COMPLAINT
Finally, Plaintiff states that she is willing to
amend and address any pleading deficiencies. A party
should be granted leave to amend to cure pleading deficiencies following the granting of a motion to dismiss
when she can sufficiently show with particularity how
she would cure any deficiency. A bare boned request is
insufficient. See Douglas v. DePhillips, 740 Fed. Appx
App. 75
403. And when a proposed amendment would be futile,
denial of a request to amend is permitted. See Villarreal v. Wells Fargo Bank, N.A., 814 F. 3d 763, 766 (5th
Cir. 2016). Here, Texas law sets out Plaintiff ’s job duties, provides the Defendant Judges are state actors,
and no case provides notice that Defendant BennettBaca was prohibited from terminating Plaintiff. Plaintiff has been given an opportunity to present her best
case. See Schiller v. Physicians Resource Group Inc.,
342 F. 3d 563, 567 (5th Cir. 2003) (“At some point, a
court must decide that a plaintiff has had a fair opportunity to make his case; if, after that time, a cause of
action has not been established, the court should finally dismiss the suit.”); see also Order, ECF No. 33
(“[Plaintiff ] has submitted three versions of the complaint, and while the Court will grant leave so that the
second amended complaint serves as the live pleading,
the Court finds it is time to resolve the Rule 12 challenges.”). Accordingly, her request for leave to amend is
DENIED.
V.
CONCLUSION
Based on the foregoing, the Court GRANTS Defendant Judges’ motion to dismiss without prejudice
pursuant to Rule 12(b)(1), in part, and further
GRANTS Defendant Judges’ motion to dismiss pursuant to Rule 12(b)(6) with prejudice. Additionally, the
Court GRANTS the County’s motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim
with prejudice. Finally, Plaintiff ’s § 1983 claim against
Judge Baca-Bennett in her individual capacity is
App. 76
hereby DISMISSED with prejudice based on qualified
immunity.
SO ORDERED this 11th day of November,
2019.
/s/ Reed O’Connor
Reed O’Connor
UNITED STATES
DISTRICT JUDGE
App. 77
United States Court of Appeals
for the Fifth Circuit
-----------------------------------------------------------------------
No. 19-11327
-----------------------------------------------------------------------
DIANE SCOTT HADDOCK,
Plaintiff—Appellant,
versus
TARRANT COUNTY, TEXAS; PATRICIA BACA-BENNETT;
KENNETH EARL NEWELL; JESUS NEVAREZ; JR.;
HONORABLE JUDITH WELLS; JEROME S. HENNIGAN;
JAMES B. MUNFORD; ALEX KIM,
Defendants—Appellees.
----------------------------------------------------------------------------------------------------------------------------------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-817
----------------------------------------------------------------------------------------------------------------------------------------------
ON PETITION FOR REHEARING
AND REHEARING EN BANC
(Filed May 26, 2021)
Before CLEMENT, HO, and DUNCAN, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED, the
panel has reconsidered its opinion without oral argument, and the panel has withdrawn and replaced its
App. 78
opinion with the revised opinion issued May 18, 2021.
No member of this panel nor judge in regular active
service on the court having requested that the court be
polled on Rehearing En Banc, (FED. R. APP. P. and 5TH
CIR. R. 35) the Petition for Rehearing En Banc is DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.