# Petition for Writ of Certiorari — Bolton v. City of Dallas, Texas (No. 08-704)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

wrt, U.S.
\d | No. 08-__08-7 94 NOV 26 2008
; OFFICE OF THE CLERK

Jn The William K. Suter, Clerk
Supreme Court of the Anited States

e

TERRELL BOLTON,

Petitioner,
v.

THE CITY OF DALLAS, TEXAS,
Respondent.

¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

€

PETITION FOR A WRIT OF CERTIORARI

.

KATHERINE L. BUTLER
BUTLER & HARRIS
1007 Heights Blvd.
Houston, TX 77008
(713) 526-5677

ERIC SCHNAPPER*
School of Law
University of Washington
P.O. Box 353020
Seattle, WA 98195
(206) 616-3167

*Counsel of Record ae

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

(1) In an action under 42 U.S.C. § 1983, may a
city or other local government body be held liable for
a constitutional violation because the official who
committed that violation exercised the final authority
to make the decision in question?

(2) In an action under 42 U.S.C. § 1983, does
the existence of a written government standard
forbidding a constitutional violation preclude the
imposition of liability on a city or other local govern-
ment body for such a violation by its officials?

il
PARTIES

The parties to this proceeding are set forth in the
caption.

ill

TABLE OF CONTENTS

Page
Questions Present ........05....csevcescadsesnvecssesssnonvens i
IN iii iccsediehassticca cites coeds uceemasi cd pcapienetapmies il
Er EE oikx i aiiseextieehvintunes Vv
oii sares gids unio taedscniadoentanmeeseiaae: 1
Statement of Jurisdiction ...................0.csccscceseoeees 1
Statute and Charter Provisions Involved ........... 2
CIS GE TI oni sc sais inp eedewssviccsnves 2
Reasons for Granting the Writ ....................:..:006 7

I. The “Deeply Divided” Decisions of This
Court Have Created Conflict and Uncer-
tainty Among The Lower Courts............... 7

II. There Is A Deeply Entrenched Inter-
Circuit Conflict Regarding The Standard
for Determining Who Is A “Policymaker”
Exe A SCRRth BES C0 is. cccicevcecaisetiasicnens 12

A. The Majority View: Municipalities
Liable for Actions by Officials Exer-
cising Final Decisionmaking Author-

RR ROE ONO EMER AD NN An Es Let Ot ES 15

B. The Minority View: More Than Final
Decisionmaking Authority Required..... 24

C. The Conflict Is Deeply Entrenched
and Well Recognized....................:eeceeee 28

III. There Is An Inter-Circuit Conflict Re-
garding The Significance of A Written
Standard Forbidding A Constitutional
EE baka Sheen Ria eats 33

B

iv

TABLE OF CONTENTS — Continued
Page
A. There Is A Three-Way Division Among

The Lower Courts Regarding The Sig-
nificance of Such A Standard................ 33

B. The Fifth and Seventh Circuit Stan-
dard Is Inconsistent With The Pur-

pose and History of Section 1983........ 39
NN is citi atccusbenianvauh ciiepd nate muicenana baleen 41
APPENDIX
Opinion of the Court of Appeals for the Fifth

RG PIE F , I nisicss seninsnsncencaiieceestorsesleveverins la
Order of the District Court for the Northern
District of Texas, August 17, 2007....................08. 15a
Opinion of the Court of Appeals for the Fifth
Cree, RI FT Te iach css ines cecccatacecccceces 30a
Order of the District Court for the Northern
District of Texas, September 20, 2005..............:...39a

Order of the Court of Appeals for the Fifth
Circuit Denying Rehearing En Banc, Sep-
tember 9, 2008....... Rane EN eM SPN! Pen ROTC? 46a

Statute and Charter Provisions Involved................ 48a

TABLE OF AUTHORITIES

Page
CASES: |
Andrews v. City of Philadelphia, 895 F.2d 1469
as cased erdemeniedeeanons 17, 18
Angarita v. St. Louis County, 981 F.2d 1537
I SIU otins ince ncientrepeserrvacanebomsonah geal 27, 37
Anthony v. City of New York, 339 F.3d 129 (2d
I I cscs peices aan tana eae 28
Arendale v. City of Memphis, 519 F.3d 587 (6th
Te ERR COR LOR Oe eet NN HRC Te 19
Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992) ..... passim
Barnes v. City of Cincinnati, 401 F.3d 729 (6th
I IE csts dais nniscathnndiasnlaieniasaimanianaiamiimaetbea acai 19, 20
Barrow v. Greenville Ind. Sch. Dist., 480 F.3d
eT ee Ee etd ccikas iene 38
Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.
BN I PI ici iisisiiccrnsiniceimcndnsdeeae 13, 14, 15, 29
Bennett v. City of Slidell, 735 F.3d 861 (5th Cir.
ee I I ois etiedntinisncisnsgidurcttucmmienaa 6, 14, 28, 30
Board of County Commissioners of Bryan
County v. Brown, 420 U.S. 397 (1997) .............:00 10
Bonner v. City of Prichard, 661 F.2d 1206 (11th
Ce TS Gi ain cticces cect ntnieicsienccmisiictetiin 29
Brown v. City of Fort Lauderdale, 923 F.2d
PORT Te Ge, Bice ite tinntntadnntbnsns 23

Burkes v. Klauser, 185 Wis.2d 308, 517 N.W.2d
SE CD sities iiininniniindécnicuniiee ee eee 30

v1

TABLE OF AUTHORITIES —- Continued

Page
City of Canton, Ohio v. Harris, 489 U.S. 378
a i rece aes aa ea 2,10
City of Newport v. Fact Concerts, Inc., 453 U.S.
BF CIO) iivscsacncsvssnss Splsialadess cdhbuccscasaea stlinlvarimaeuwedians 8,9
City of St. Louis v. Pes: 485 U.S. 112
CAEN ii inh siccetarsdicg eb vuchs Wisietinbeishiailanieawedeeseneih cesta passim
Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999) .............. 28
Cordero v. Jesus-Mendez, 867 F.2d 1 (1st Cir.
NU i ca a es, 16
Crowley v. Prince George’s County, Maryland,
S90 F.2d G83 (4th Cir. 1969) ..........0...coseseseovecses 26, 27
Davison v. City of Minneapolis, Minnesota, 490
ee OO (Ee Ce, BT) nic cicccsvesesscccesseesesesens aaa 27
Flanagan v. Munger, 890 F.2d 1557 (10th Cir.
ERR Mee ene ve neva eo ee Eee ne PoE 21, 22
Gianessi v. City of Pekin, 52 Fed.Appx. 265 (7th
RRR Ti BONGO OP Ne TDA FOOTE AEA oO 25
Greensboro Prof'l Fire Fighters Ass’n, Local
3157 v. City of Greensboro, 64 F.3d 962 (4th
Re a ais eateries 26, 27
Grenetzke v. Kenosha Unified Schooi District
Nea. 1, 274 F.3d 464 (7A Git. BOG1) ccc ciscscccccccsesess. 26
Gronowski v. Spencer, 424 F.3d 285 (2d Cir.
NIE io sissies dciccicerah cua eriiaacaiiusie uhiandepionaeieees 16, 28
Harrington v. Almy, 977 F.2d 37 (ist Cir. 1992)......15, 16

Hyland v. Wonder, 117 F.3d 405 (9th Cir. 1997)........ 20

TABLE OF AUTHORITIES — Continued

Page
Jeffes v. Barnes, 208 F.3d 49 (2d Cir. 2000)............... 17
Lawshee v. Simpson, 16 F.3d 1475 (7th Cir.

TEE TERT ER MEP TEE LE LENE RE! IEE See ORT RT 38
Lucas v. O’Loughlin, 831 F.2d 232 (11th Cir.

RE. sissies postin ibe sas buh acadude pasa bansoeds etiniigdabaaniees 23
Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004).....20, 34, 35
Martinez v. City of Opa-Locka, Florida, 971

P.26 T08 (Lith Cir. 1G). ..1..ccssscscocevess. 22, 23, 35, 36
McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005) ...... 18
McNeese v. Board of Education, 373 U.S. 668

SINNER In a footnote, the Pembaur Court illustrated this distinc-
tion:

[Flor example, the County Sheriff may have discretion
to hire and fire employees without also being the
county official responsible for establishing county em-
ployment policy. If this were the case, the Sheriff’s de-
cisions respecting employment would not give rise to
municipal liability, although similar decisions with re-
spect to law enforcement practices, over which the
Sheriff is the official policymaker, would give rise to
municipal liability. Instead, if county employment pol-
icy was set by the Board of County Commissioners,
only that body’s decisions would provide a basis for
county liability. This would be true even if the Board
(Continued on following page)

8a

475 U.S. at 483-84, 106 S.Ct. 1292; Praprotnik, 485
U.S. at 130. In Jett, we understood the decisionmak-
ing addressed in Pembaur and Praprotnik to include
decisions that were “final.” 7 F.3d at 1247. We noted
that neither of the Supreme Court cases made a
“suggestion of any qualification such as ‘initial’ dis-
cretion or the decisionmaker’s action being subject to
appeal or the like.” Jd. at 1247-48. And, moreover,
Praprotnik states that “[wJhen an official’s discre-
tionary decisions are constrained by policies not of
that official’s making, those policies, rather than the
subordinate’s departures from them, are the act of the
municipality.” Praprotnik, 485 U.S. at 127. We held
that this statement “ applies even to individual
decisions which are not reviewable.” Jett, 7 F.3d at
1248. Thus, Jett “eschews the importance of adminis-
trative reviewability in distinguishing final decision-
making authority from final policymaking authority.”
Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525,
530 (5th Cir. 2006).

left the Sheriff discretion to hire and fire employees
and the Sheriff exercised that discretion in an uncon-
stitutional manner; the decision to act unlawfully
would not be a decision of the Board. However, if the
Board delegated its power to establish final employ-
ment policy to the Sheriff, the Sheriff’s decisions
would represent county policy and could give rise to
municipal liability.
475 U.S. at 483 n.12. And, as we noted in Jett, 7 F.3d at 1247,
this example was revisited in Praprotnik as a basis for its
distinction between a final policymaker and a final decision-
maker. 485 U.S. at 129-30.

9a

In Jett, we also recognized support for this posi-
tion in a Seventh Circuit case, Auriemma v. Rice, 957
F.2d 397 (7th Cir. 1992), and in this circuit’s own
precedents. See Jett, 7 F.3d at 1248. In Auriemma,
the Seventh Circuit assumed that the Chicago Super-
intendent of Police had final, executive authority to
demote police officers. Auriemma, 957 F.2d at 399.
But it nevertheless held that such authority could not
support municipal! liability:

If it were enough to point to the agent whose
act was the final one in a particular case, we
would have vicarious liability. Action in the
course of one’s duty is the basis of vicarious
liability. That a particular agent is the apex
of a bureaucracy makes the decision “final”
but does not forge a link between “finality”
and “policy”.

Id. at 400. And in this circuit, “[w]e took essentially
the same approach ... where ‘we rejected the line of
authority ... which would permit policy or custom to
be attributed to the city itself by attribution to any
and all officers endowed with final or supervisory
power or authority.’” Jett, 7 F.3d at 1248 (quoting
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.
1984) (en banc) (per curiam)) (second alteration in
original). The finality of an official’s action does not
therefore automatically lend it the character of a

10a

policy.’ See id. at 1246; Barrow v. Greenville Indep.
Sch. Dist., 480 F.3d 377, 382 n.17 (5th Cir. 2007).

* Gelin does note that “we have found the existence of
effective administrative review to be relevant in certain con-
texts.” 456 F.3d at 530. The cases cited by Gelin generally
confirm that review procedures can be relevant to showing that
an official is not a final policymaker. See, e.g., Beattie v. Madison
County Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001) (holding that
a superintendent was not a final policymaker because her
decision was subject to review by the school board); Worsham uv.
City of Pasadena, 881 F.2d 1336, 1341 (5th Cir. 1989) (“The
existence of effective review procedures prevents the employees
from wielding final responsibility in the instant case.”). Further,
we have since explicitly understood Beattie to otherwise follow
Jett. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377,
382 n.17 (“This court in [Beattie] characterized Jett as holding
that ‘a superintendent’s transfer of a teacher to another position
might be a final policy decision if that action was unreviewable,
even if the superintendent did not have complete control over
the hiring and firing of district personnel.’ ‘Might be’ does not
mean ‘is,’ and a person is not a policymaker when he makes a
decision simply because that decision is unreviewable.”(quoting
Beattie, 254 F.3d at 603)).

Gelin also cites, and Bolton relies on, Brady v. Fort Bend
County, 145 F.3d 691 (5th Cir. 1998), one of a number of cases in
which we addressed the liability of a Texas county for the
actions of its sheriff. But Brady, and another case in this line
cited by Bolton, Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996),
depend on a premise not present here: the special place accorded
by state statute to Texas sheriffs as the ultimate repository of
legal authority in a given county “not by virtue of delegation by
the county’s governing body but, rather, by virtue of the office to
which the sheriff has been elected.” Turner v. Upton County, 915
F.2d 133, 136 (5th Cir. 1990); see also Brady, 145 F.3d at 699-
701; Bennett, 74 F.3d at 586. Thus, Texas sheriffs are policymak-
ers as a direct result of state statute; their constitutional
violations result in county liability even if contrary to other state

(Continued on following page)

lla

Here, where Dallas has a city council and a city
manager, the state and local law show that the city
manager is an executive and administrative official
with final decisionmaking authority in certain em-
ployment decisions; it does not show that the Charter
or the city council delegated policymaking power to
the city manager. Nor can Bolton otherwise build a
case that Benavides had such power in this instance.
Bolton first cites state law:

(a) The city manager shall administer the
municipal business and the governing body
of the municipality shall ensure that the
administration is efficient.

(b) The governing body by ordinance may
delegate to the city manager any additional
powers or duties the governing body consid-
ers proper for the efficient administration of
municipal affairs.

(c) The city manager must execute a bond.
The bond must be conditioned that the man-
ager will faithfully perform the duties of
manager and must be in an amount pre-
scribed by ordinance.

TEXAS LOCAL Gov’T CODE ANN. § 25.029. The repeated
references to the city manager’s responsibility for
“administration” make clear that the position is
executive rather than legislative; that is, state law

law or policy. Bennett, 74 F.3d at 586. No such statute is present
here.

12a

alone does not give to city managers “the responsibil-
ity for making law or setting policy in any given area
of a local government’s business.” Praprotnik, 485
U.S. at 125. State law instead reserves that role for
the “governing body.”

Nor does the local law that Bolton cites delegate
to Dallas’s city manager policymaking authority with
respect to the employment decision here. The Charter
does give a broad degree of discretion to the city
manager in the city manager’s removal and appoint-
ment of employees, and it further prohibits the city
council from “dictat[ing]” the city manager’s decisions
in that regard. Bolton depends on this discretion —
and its coordinate lack of review — to demonstrate
that Benavides is a final policymaker. But, as we
discussed above, neither complete discretionary
authority nor the unreviewability of such authority
automatically results in municipal liability.” There
must be more. And Bolton points to no other relevant
source of law showing that the City vested Bolton
with policymaking power.

* Bolton cites Neubauer v. City of McAllen, 766 F.2d 1567,
1573-74 (5th Cir. 1985), overruled on other grounds by Walther v.
Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992), for the proposi-
tion that a city manager with final discretion to make employ-
ment decisions is necessarily a final policymaker. But we have
not understood Neubauer to announce such a broad rule or to be
inconsistent with Pembaur. See Jett v. Dallas Indep. Sch. Dist.,
798 F.2d 748, 759 (5th Cir. 1986), aff’d in part and remanded in
part on other grounds,491 U.S. 701 (1989). And the Charter here
imposes limitations on the city manager not present in
Neubauer. See 766 F.2d at 1573-74.

l3a

Further, Chapter XII, § 5, of the Charter — the
relevant local law quoted earlier — prohibits the
specific action taken by Benavides. Thus, absent
some contrary custom not shown here, Benavides’s
action clearly does not represent final policy with
respect to the removal of city officials like Bolton. It is
the Charter that announces the City’s policy in this
regard. See Barrow, 480 F.3d at 382 (“(A]n official
whose discretionary decisions on a particular matter
are final and unreviewable, meaning they can’t be
overturned, is constrained if another entity has
ultimate power to guide that discretion, at least
prescriptively, whether or not that power is exer-
cised.” (footnotes omitted)); Auriemma, 957 F.2d at
400 (“Liability for unauthorized acts is personal; to
hold the municipality liable, Monell tells us, the
agent’s action must implement rather than frustrate
the government’s policy.”); Praprotnik, 485 U.S. at
127. There is no argument that Benavides was gener-
ally free to disregard the Charter,’ or that the City
had a custom of permitting such disregard. And
Bolton has not shown that Benavides was vested with

° Bolton makes an ill-defined argument that the City did
assert in earlier litigation that Benavides was free to disregard
Chapter XII, § 5, of the Charter and that its statements in this
respect should now be held against the City lest the integrity of
the courts be compromised. Bolton calls these statements
‘judicial admissions,” although his argument also has the
characteristics of a request for estoppel. In any case, it is evident
that the City’s position now is a direct consequence of our earlier
ruling in Bolton’s favor. We find no reason to prevent the City
from advancing such an argument in this case.

l4a

policymaking authority such that municipal liability
should attach despite the existence of a contrary city
policy. See Bennett, 74 F.3d at 586. Benavides was
therefore not the final policymaker with respect to his
decision to terminate Bolton and municipal lability
cannot attach to that decision.

V.

Because state and local law demonstrate that Ted
Benavides was not a final policymaker with respect to
his decision to terminate the employment of Terrell
Bolton, the City of Dallas cannot be held liable for
that termination. Accordingly, the district court’s
grant of summary judgment in favor of Dallas is
AFFIRMED. The motions before us are DENIED as
moot.

15a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION
TERRELL BOLTON, §
Plaintiff, §
VS. ® Civil Action No.
CITY OF DALLAS, § 3:04-CV-0501-D
TEXAS, et al., 8
Defendants. N

MEMORANDUM OPINION
AND ORDER

(Filed Aug. 17, 2007)

In this suit by a terminated Chief of Police under
42 U.S.C. §1983 alleging that his Fourteenth
Amendment rights to due process and equal protec-
tion were violated when he was discharged rather
than reassigned to a lower rank, the dispositive
question presented by defendants’ motion for sum-
mary judgment is whether the conduct of the City
Manager who discharged the plaintiff is attributable
to the defendant City. Concluding that the City
cannot be held liable under § 1983 for the City Man-
ager’s unauthorized departure from City policy, the
court grants defendants’ motion and dismisses this
case with prejudice.

I

This is an action by plaintiff Terrell Bolton
(“Bolton”) against defendant City of Dallas, Texas
(“City”) and its former City Manager, defendant
Teodoro Benavides (“Benavides”). Bolton served as
Chief of Police of the Dallas Police Department
(“DPD”) from October 1, 1999, until Benavides termi-
nated him on August 26, 2003.' Bolton alleges that
the City and Benavides are liable under §1983 for
violating his Fourteenth Amendment due process and
equal protection rights. Specifically, he complains
that defendants violated these rights by terminating
his employment rather than reassigning him to the
last civil service rank he held prior to being appointed
to the executive ranks of the DPD.

Appointment to the executive rank position of
Chief of Police is made at the discretion of the City
Manager, who, during Bolton’s tenure as Chief of
Police, was defendant Benavides. In addition to Chief
of Police, the appointed executive ranks of the DPD
include the Deputy Chief of Police, Assistant Chief of
Police, and any other positions as may be created or
designated by the Chief of Police. The civil service
ranks of the DPD are (in descending order) Captain,

' The court recounts the evidence in a light favorable to
Bolton as the summary judgment: nonmovant and draws all
reasonable inferences in his favor. E.g., U.S. Bank Nat'l Ass’n v.
Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006)
(Fitzwater, J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir.
2000)).

17a

Lieutenant, Sergeant, Senior Corporal, and Police
Officer. Unlike the executive ranks, promotions
within the civil service ranks require competitive
service examinations.

Before his appointment as Chief of Police, Bolton
had held the executive rank positions of DPD Assis-
tant Chief for eight years, Deputy Chief for three
years, Manager of Building Security for approxi-
mately one year (a civilian position), and, before that,
the civil service rank of Sergeant. At the time he was
appointed Chief of Police, Bolton had approximately
twenty years of service with the DPD.

In August 2003 Benavides determined that
Bolton was unfit for the position of Chief of Police and
advised him that he had been terminated. Bolton was
not reassigned to a lower rank within the DPD. In a
letter, Benavides listed a “series of issues” that
caused him to determine that “new leadership for the
[DPD was] needed.” 2d Am. Compl. 118 (brackets in
original). Benavides conceded that he did not termi-
nate Bolton for cause.

Following his termination, Bolton filed this
lawsuit against the City and Benavides, alleging that
under Chapter XII, § 5 of the Dallas City Charter, he
had a protected property interest in continued em-
ployment with the DPD and that, by arbitrarily and
capriciously denying him reassignment within the
DPD, Benavides and the City had violated his Four-
teenth Amendment rights to due process and equal

18a

protection. Chapter XII, § 5 of the Dallas City Char-
ter provides,

If the chief of the police department ... was
selected to that position from the ranks of
the police department and is removed from
the position on account of unfitness for the
discharge of the duties of the position, and
not for any cause justifying dismissal from
the service, the chief ... shall be restored to
the rank and grade held prior to appoint-
ment to the position, or reduced to a lower
appointive rank.

Dallas, Tex., City Charter Ch. XII, §5 (repealed
2005).

This lawsuit was initially assigned to another
member of this court. Defendants moved for summary
judgment, and the court granted the motion, holding
that Bolton lacked a constitutionally protected prop-
erty interest in further employment with the DPD.
Bolton v. City of Dallas, 2005 U.S. Dist. LEXIS 20543,
at *8 (N.D. Tex. Sept. 20, 2005) (Kinkeade, J.), rev'd
in part, dism’d in part, 472 F.3d 261 (5th Cir. 2006).
The Fifth Circuit reversed in part, concluding that
Chapter XII, § 5 of the Dallas City Charter did create
a constitutionally protected property interest in
Bolton’s continued employment at the rank and grade
held before his appointment to the executive position,
and it remanded the case. Bolton v. City of Dallas,
Tex., 472 F.3d 261, 265 (5th Cir. 2006) (“Bolton I”).
The Fifth Circuit dismissed Bolton’s action against
Benavides in his individual capacity, concluding that

19a

Benavides was entitled to qualified immunity because
reasonable public officials could have differed on
whether discharging Bolton would violate his consti-
tutional! rights. Id. at 266. Following remand and the
decision of the presiding judge to recuse, the case was
reassigned. Bolton filed a second amended complaint,
and defendants obtained leave to file a second motion
for summary judgment.

Defendants contend that the decision to termi-

nate Bolton was not arbitrary or capricious; Bolton

did not have a property interest in continued em-
ployment with the DPD because he was not appointed
to the executive ranks from the sworn ranks;
Benavides is entitled to summary judgment because
the Fifth Circuit concluded in Bolton I that he is
entitled to qualified immunity; Bolton’s claims for
punitive damages should be dismissed because puni-
tive damages are not recoverable under § 1983; and
the City is not liable under § 1983 for Benavides’s
decision to terminate Bolton’s employment. Bolton
opposes defendants’ motion.

II

The court begins with defendants’ contention that
Benavides is entitled to summary judgment insofar
as he is sued in his official capacity. Defendants
maintain that the official-capacity claim must be
dismissed on the ground that it is duplicative of, and
merges with, Bolton’s action against the City. The
court agrees. A suit against a government official in

20a

his official capacity is “only another way of pleading
an action against an entity of which [the official] is an
agent.” Monell v. Dep? of Soc. Servs. of N.Y., 436 U.S.
658, 690 n.55 (1978). If the government entity re-
ceives notice and an opportunity to respond, an
“official capacity suit” is treated as a suit against the
entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
A suit against a municipal official in his official
capacity is not a suit against the official personally,
because the real party in interest is the entity. Id. at
166. Thus there is no longer any need to bring offi-
cial-capacity actions. Accordingly, the court dismisses
Bolton’s § 1983 claim against Benavides in his official
capacity.

III

To recover against the City on his § 1983 claim,
Bolton must establish that the City is liable for
Benavides’s conduct. Defendants maintain that
Bolton cannot meet this burden. Again, the court
agrees.

A

Although municipalities are “persons” under
§ 1983, see Monell, 436 U.S. at 690, they cannot be
held liable simply on a theory of respondeat superior,
id. at 691. Rather, liability obtains only “when execu-
tion of.a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy,

2la

inflicts the injury[.]” Id. at 694. “Normally, a plaintiff
must identify a policy or custom that gave rise to the
plaintiff’s iniury before he may prevail.” Geiin uv.
Hous. Auth. of New Orleans, 456 F.3d 525, 527 (5th
— Cir. 2006) (citing Canton v. Harris, 489 U.S. 378, 389
(1989)). “It is well-established, however, that a single
decision by an official can be grounds for section 1983
liability where the decision was rendered by an
individual with ‘final policy making authority.’” Id.
(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
737 (1989); Brady v. Fort Bend County, 145 F.3d 691,
698 (5th Cir. 1998)). “Where liability is based upon a
single decision by an official, [a] court’s task is to
identify those officials or governmental bodies who
speak with final policymaking authority for the local
governmental actor concerning the action alleged to
have caused the particular constitutional or statutory
violation at issue.’” Jd. (quoting McMillian v. Monroe
County, Ala., 520 U.S. 781, 784-85 (1997) (some
internal quotation marks omitted)). “[T]he identifica-
tion of those officials whose decisions represent the
official policy of the local governmental unit” is a
question of state law “to be resolved by the trial judge
before the case is submitted to the jury.” Jett, 491 U.S.
at 737.

B

Defendants argue that the City is not liable for
Benavides’s decision to terminate Bolton as Chief of
Police. They maintain that Bolton cannot point to any
facts regarding any official City policy or custom that

22a

deprived him of his constitutional rights, arguing
that Benavides’s decision not te reassign him to
another position was an isolated incident that is
insufficient to constitute final official policy. Defen-
dants next argue that Bolton cannot establish liabil-
ity against the City because he cai.not show that his
termination and the failure to reassign him to an-
other position were the decisions of a policymaker.
They posit that to determine whether the City is
liable, the court must decide whether the injury was
caused by the act of an employee taken pursuant to
his role as a policymaker or whether the conduct was
undertaken as a decisionmaker in execution of a
policy for which the City is the policymaker.

Defendants argue that this case falls within the
latter category. They point to various provisions of the
Dallas City Charter that they allege establish that
the City Council is the policymaker for all City per-
sonnel policies. Defendants maintain that although
the City Manager is vested with discretion to appoint
and remove directors of departments, including
within the DPD, he is not the policymaker with
respect to the City’s employment policies. Rather, his
responsibility is to implement the policies set by the
City Council. Defendants contend that the Civil
Service Board is the only entity authorized to make
rules and regulations, which are then subject to City
Council approval; there is no provision of the Charter
that delegates policymaking authority to the City
Manager; although the City Manager is vested with
authority to hire and replace executive rank employees,

23a

that is as far as his authority extends; and if
Benavides exercised his authority in an unconstitu-
tional manner, the decision to act unlawfully was not
the decision of the City.

Bolton responds that proof that an individual
lacked authority to make other decisions is not rele-
vant to the question whether he was the policymaker
with respect to the precise act at issue. He maintains
that defendants’ argument that the City Council was
the “real” policymaker fails because the City Charter
specifically forbids the Council from making a deci-
sion to remove the Chief of Police.

In reply, defendants point out that Chapter XII,
§ 5 of the Dallas City Charter sets forth the policy of
the City with respect to removing and retaining
executive rank officers, and that the City Manager is
responsible for administering that policy, which
Benavides did when he terminated Bolton. Defen-
dants argue that the City Charter vests all authority
in the City Council and establishes that the scope of
the City Manager’s authority is limited to the “proper
administration of all the city affairs placed in his
hands.” Ds. Reply Br. 15 (bold font omitted) (quoting
Dallas, Tex. City Charter Ch. VI, § 2(1)). They there-
fore maintain that Benavides was a decisionmaker,
not a policymaker, under authority conferred upon
him by the City Charter, which made him responsible
to the City Council for his decisions. Defendants
therefore contend that if his decision to terminate
Bolton was wrong, it was not the decision of the City,
and the City cannot be held liable under § 1983.

24a

C

The court will assume arguendo that Bolton’s
Fourteenth Amendment rights were violated when
Benavides decided to terminate, rather than reassign,
him, as required by Chapter XII, §5 of the City
Charter when a Chief of Police who is selected from
the ranks of the DPD is not terminated for cause. The
court will also assume arguendo that Bolton was
selected from the ranks. Even so, Bolton cannot
establish that this alleged constitutional injury was
caused by the “execution of a government’s policy or
custom,” such that the City is subject to liability
under § 1983. Monell, 436 U.S. at 694. Bolton does
not dispute that Benavides’s decision was an isolated
incident insufficient to constitute an “official policy”
of the City. See P. Br. 9 (pointing out that Bolton does
not contend that the City can be liable based on a
“longstanding custom or practice”). Consequently, to
determine whether the City can be held liable under'
§ 1983 for Benavides’s decision, the court must decide
whether Benavides “possesse[d] final authority to
establish municipal policy with respect to the action
ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469,
481 (1986). In other words, the court must determine
whether Benavides was a final policymaker with
respect to the precise act in question: terminating
rather than reassigning Bolton

It is undisputed that Benavides had complete
discretion to remove Bolton from the position of Chief
of Police. In fact, as Bolton points out in his brief, the
City Charter expressly forbids the City Council from

25a

interfering with Benavides’s hiring and firing deci-
sions. It provides:

Neither the council nor any of its committees
or members shall dictate or attempt to dic-
tate any person’s appointment to, or removal
from, office or employment by the city man-
ager or any of the city manager’s subordi-
nates, or in any manner interfere in the
appointment of officers and employees in the
departments of administrative service vested
in the manager by this Charter.

Dallas, Tex. City Charter, Ch. III, § 15. But the Char-
ter does not vest in Benavides any discretion regard-
ing whether, after removing the Chief of Police from
that position, he should be restored to a prior or lower
appointive rank within the DPD. The Charter explic-
itly provides that “the chief or the assistant shall be
restored to the rank and grade held prior to appoint-
ment to the position, or reduced to a lower appointive
rank.” Dallas, Tex. City Charter Ch. XII, § 5 (empha-
sis added). “The word ‘shall’ implies that restoration
to a lower rank and grade is mandatory.” Bolton I,
472 F.3d at 265 (citing Valdez v. Cockrell, 274 F.3d
941, 950 (5th Cir. 2001)).

“When an official’s discretionary decisions are
constrained by policies not of that official’s making,
those policies, rather than the subordinate’s depar-
tures from them, are the act of the municipality.” City
of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
Although Benavides was vested with discretion in
deciding whether to remove Bolton from the position

26a

of Chief of Police, his ability to terminate rather than
reassign Bolton was constrained by the limitations of
Chapter XII, § 5.

In Auriemma v. Rice, 957. F.2d 397 (7th Cir.
1992), which the Fifth Circuit cited with approval in
its recent decision in Barrow v. Greenville Independ-
ent School District, 480 F.3d 377 (5th Cir. 2007),

the Seventh Circuit concluded that the Chi-
cago Police Chief, who by city ordinance had
unreviewable discretion to make personnel
decisions, would not have set city policy in.
allegedly discriminating by race. Rather, the
Chief would have violated city policy, embod-
ied in another city council ordinance gener-
ally forbidding racial discrimination in
hiring.
Id. at 382. Specifically, the Seventh Circuit explained
in Auriemma that “[ljiability for unauthorized acts is
personal; to hold the municipality liable, Monell tells
us, the agent’s action must implement rather than
frustrate the government’s policy.” Auriemma, 957
F.2d at 400.

As set forth in Chapter XII, § 5, it was City policy
at the time Bolton was discharged that when the
Chief of Police is selected from within the ranks and
is not removed for cause, he is entitled to continued
employment with the DPD at his prior position or at
a lower appointive rank. As City Manager, Benavides
was “[t]o be responsible to the [city] council for the
proper administration of all the city affairs placed in

27a

the city manager’s hands.” Dallas, Tex. City Charter
Ch. VI, § 2(1). The proper administration of all the
city affairs would certainly have required that
Benavides follow the mandatory directives of the City
Charter. No provision of the City Charter gave
Benavides the power to make policies for the City in
the area of employment or to act in contravention of
the mandates of the City Charter. Benavides was
vested under Chapter VI, § 2(3) with the power to
remove heads of departments and subordinate offi-
cers and employees. But in tasking the City Manager
with the appointment and removal of all heads of
departments, the City Charter did not give Benavides
any final policymaking authority regarding what
happened to these heads of departments when an-
other Charter provision mandated their continued
employment. In fact, Bolton advances several argu-
ments in his brief that inferentially defeat his conten-
tion that ‘Benavides was a final policymaker with
respect to the decision to discharge rather than
reassign Bolton. See P. Br. 1 (arguing that City Man-
ager lacked discretion under City Charter to termi-
nate rather than demote Chief of Police who came
from the DPD ranks and was not discharged for
cause), 6 (“Here, the City’s termination of Bolton was
clearly arbitrary and capricious — given that this
action was contrary to law (i.e., the Dallas City
Charter).”), 8 (“Benavides knew full-well that the
Dallas City Charter required that Bolton be de-
moted[.] ... [H]e ignored the plain language of the
City Charter.”), 12 (“[Benavides] did not have the
discretion to simply flaunt the law. His decision to do

28a

so certainly has the hallmarks of being both arbitrary
and capricious.”), and 13 (referring to “the mandatory
language of the Charter itself.”). The court therefore
concludes that Benavides’s failure to follow Chapter
XII, §5 was an unauthorized departure from City
policy and, as such, varied from, rather than repre-
sented, City policy. See Auriemma, 957 F.2d at 400.
The decision to discharge rather than reassign Bolton
was a departure from the City’s expressed policy, not
an exercise by Benavides of final policymaking au-
thority. Accordingly, the court holds that the City
cannot be held liable for Benavides’s failure to restore
Bolton to the rank and grade he held prior to his
appointment to the position of Chief of Police, or his
failure to reduce him to a lower appointive rank. The
court therefore grants defendants’ motion for sum-
mary judgment dismissing Bolton’s § 1983 claim
against the city.”

* * *

For the foregoing reasons, the court grants
defendants’ May 7, 2007 motion for summary judg-
ment and dismisses Bolton’s § 1983 claims against
Benavides in his official capacity and against the
City. This case is dismissed with prejudice by judg-
ment filed today.

* Having determined that neither Benavides nor the City
can be held liable for Bolton’s alleged constitutional depriva-
tions, the court need not address defendants’ other grounds for
summary judgment.

29a

SO ORDERED.
August 17, 2007.
/s/ SIDNEY A. FITZWATER

SIDNEY A. FITZWATER
UNITED STATES
DISTRICT JUDGE

30a

In the
United States Court of Appeals
for the Fifth Circuit

No. 05-11141

TERRELL BOLTON,
Plaintiff-Appellant,
VERSUS

THE City OF DALLAS, TEXAS,
AND
TEODORO BENAVIDES,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Texas
No. 3:04-CV-0501-K

(Filed Dec. 7, 2006)

Before SMITH, BENAVIDES and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Terrell Bolton appeals a summary judgment in
favor of the defendants, the City of Dallas and its city
manager, Teodoro Benavides. Bolton sued under 42
U.S.C. § 1983, alleging that the city had terminated
him from his position as Chief of Police in violation of
the due process clause of the Fourteenth Amendment.

3la

The district court concluded that Bolton lacked a
constitutionally-protected property interest in further
employment with the Dallas Police Department
(“DPD”). Because Chapter XII, § 5 of the Dallas City
Charter creates a constitutionally-protected property
interest, we reverse and remand. We also conclude
that Benavides’s successful defense of qualified
immunity requires dismissal of Bolton’s claims
against Benavides in his individual capacity.

I.

Bolton served as an executive-rank officer of DPD
for fifteen years and in August 1999 was promoted
from assistant chief to chief. In August 2003 city
manager Ted Benavides terminated his employment.
Benavides acknowledges that the dismissal was not
for cause. Bolton claims the city charter mandates
that he be restored to the rank and grade he held
before being appointed chief.

II.

We review a summary judgment de novo, apply-
ing the same standard as did the district court.
Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2005),
cert. denied, 2006 U.S. LEXIS 8734 (U.S. Nov. 13,
2006). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most
favorable to the nonmoving party. Minter v. Great
Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). Sum-
mary judgment is appropriate where the record

32a

demonstrates that there is no issue of material fact
and the moving party is entitled to judgment as a
matter of law. Martinez v. Bally’s La., Inc., 244 F.3d
474, 476 (5th Cir. 2001).

IIT.

To succeed on a due process claim in the context
of public employment, a plaintiff must show that (1)
he had a property interest/right in his employment
and (2) his termination was arbitrary or capricious.
Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th
Cir. 1993) (citing Honore v. Douglas, 833 F.2d 565,
568 (5th Cir. 1987)). Because the district court
granted summary judgment based on its finding that
Bolton lacked a property interest in his employment,
we address only the first prong.

Although public employees can be endowed with
constitutionally-protected property interests in their
employment, a property interest is not incidental to
public employment and must be located in an inde-
pendent source, such as_ tate law. Perry v. Sinder-
mann, 408 U.S. 593, 601 (1972). “A property interest
is created where the public entity has acted to confer,
or alternatively, has created conditions that infer [sic,

' Gilbert v. Homar, 520 U.S. 924, 928-29 (1997) (stating that
“employees who can be discharged only for cause have a consti-
tutionally protected property interest in their tenure and cannot
be fired without due process”); Cleveland Bd. of Educ. v. Loud-
ermill, 470 U.S. 532 (1985).

33a

imply?}, the existence of a property interest by abro-
gating the right to terminate an employee without
cause.” Muncy v. City of Dallas, 335 F.3d 394, 398
(5th Cir. 2003). A public entity can confer a property
interest in public employment through a local ordi-
nance. Bishop v. Wood, 426 U.S. 341, 344 (1976).’

Bolton claims that Chapter XII, § 5 of the charter
grants him a property interest in continued employ-
ment. It states,

If the chief of the police department ... was
selected to that position from the ranks of
the police department and is removed from
the position on account of unfitness for the
discharge of the duties of the position, and
not for any cause justifying dismissal from
the service, the chief... shall be restored to
the rank and grade held prior to appoint-
ment to the position, or reduced to a lower
appointative rank.

DALLAS, TEX., CiITy CHARTER ch. 12, § 5 (2006).

We examined this section in Muncy, 335 F.3d
394. In that case, two executive-rank DPD officers

* Under Texas law, home rule cities “may determine by
charter whether employment in certain city offices is at will or
continuous absent just cause for dismissal, and Texas courts will
give effect to such charter provisions.” Henderson v. Sotelo, 761
F.2d 1093, 1096 (5th Cir. 1985) (citing Ratliff v. City of Wichita
Falls, 115 S.W.2d 1153 (Tex. Civ. App. - Amarillo 1938, writ
dism’d), and City of San Benito v. Cervantes, 595 S.W.2d 917
(Tex. Civ. App. — Eastland 1980, writ ref’d n-r.e.)).

34a

challenged demotions to the highest-rank appoint-
ments they had held before receiving their executive
appointments. They contended that a myriad of
sources, including §5, granted them a protected
property interest in their executive-rank positions. In
examining § 5, we noted that “unfitness for duty” is “a
nebulous status which conceivably could encompass
political unsuitability or any number of other reasons
that fall short of the property-interest conferring,
termination-for-cause standard.” Id. at 399. We found
this particularly true given that the statute inter-
nally defines “unfitness for duty” as “not for any
cause justifying dismissal.” Jd. Interpreting the
provision as a whole, we noted that it “contemplates
that high level officials will be removed from time to
time, and in those instances in which the removal is
not for a cause warranting dismissal, then the official
will be reassigned within the department.” Jd.

Although the city points to language in Muncy
indicating that § 5 serves primarily as a limit on the
city’s ability to retain former executives, id. at 399-
400, it is evident that Muncy does not control the
instant case. Unlike the plaintiffs in Muncy, Bolton
claims a property interest not in his executive-rank
position, but rather in continued employment at the
rank and grade held before his appointment to the
executive position. His argument does not rely on the
“unfitness for duty” language, but rather on the “for
any cause justifying dismissal” language. He asserts
that § 5, by its reference to “any cause justifying

35a

dismissal from the service,” creates a property inter-
est in continued employment.

The plain language of the charter supports
Bolton’s reading. “If the chief ... is removed ... not
for any cause justifying dismissal from the service,”
tracks language that elsewhere has been found to
create a property interest.’ The word “shall” implies
that restoration to a lower rank and grade is manda-

tory."

Even if we were to look beyond the plain lan-
guage, this interpretation makes sense. The chief of
police is a political position, and a chief might be
removed for any number of reasons beyond his con-
trol. Through this charter provision, Dallas is ensur-
ing officers with considerable length of service that
accepting an unstable job will not force them to forfeit
their long tenure within the DPD. It reflects a

* See Perry, 408 U.S. at 600-03 (holding that guidelines
stating that an employee “may expect to continue in his aca-
demic position unless adequate cause for dismissal is demon-
strated in a fair hearing” create a protected property interest);
Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1199 (5th Cir.
1987) (finding a protected property interest where an employee
handbook “contained a provision that employees would be
discharged only for good cause”); United Transp. Union uv.
Brown, 694 S.W.2d 630 (Tex. App. — Texarkana 1985, writ ref’d
n.r.e.) (finding a protected property interest where “the manual
of working conditions provides that no employee will be demoted
without good cause”).

* See, e.g., Valdez v. Cockrell, 274 F.3d 941, 950 (“The word
‘shall’ is mandatory in meaning.”).

56a

balance between the city’s interest in attracting high
quality applicants and its interest in ensuring effec-
tive oversight of the officers who fill executive posi-
tions.

The city responds by claiming that the two
grounds for removal in the charter — “unfitness for
duty” and “for cause justifying dismissal” — do not
exhaust the field of possible reasons for removal of an
executive officer. Although admitting that Bolton was
not removed for cause, the city alleges that he was
discharged because his continued presence would be
“disruptive” rather than because he was unfit for
duty, a reason for removal that would not trigger § 5.
We do not ascribe the same talismanic significance to
“unfitness for duty.” The language that creates a
property interest is “not for any cause justifying
dismissal.” If a chief promoted from within the ranks
is not removed for cause, by the plain language of the
charter he must be restored to his previous position.”

* The City raises alternative grounds for affirmance: that
§ 5 does not apply to Bolton, because he was not selected chief
from “the ranks of the department” and that the city is immune
from suit under § 1983 because Bolton has not pointed to a
policy or custom that violates his rights. Because the district
court concluded that Bolton did not possess a protected property
right, it did not address the factual disputes raised by the city or
whether the c.°v’s policy or custom played a role in the violation
of Bolton’s rights. We leave these arguments for the district
court on remand. See Sanders v. English, 950 F.2d 1152, 1159
n.13 (5th Cir. 1992).

37a

IV.

Benavides asserts in the alternative that any
claims against him in his personal capacity should be
dismissed because he is entitled to qualified immu-
nity. Although the district court did not address the
qualified immunity claim, Benavides asserted the
defense in his answer and raised it in this appeal, so
we may address it.

Once a public official has raised the defense of
qualified immunity, the burden rests on the plaintiff
to rebut it.° On a motion for summary judgment, the
disputed facts to which the plaintiff points must be
sufficient, if plaintiff’s version is accepted, for a
reasonable trier of fact to determine (1) that the
defendant violated the plaintiff’s constitutional rights
and (2) that the violation was objectively unreason-
able. See Fraire v. City of Arlington, 957 F.2d 1268,
1273 (5th Cir. 1992). The inquiry into reasonableness
asks “whether ‘[t]he contours of the right [are] suffi-
ciently clear that a reasonable official would under-
stand that what he is doing violates the right.’” Id.
(citing Anderson v. Creighton, 482 U.S. 635, 640
(1987)). If reasonable public officials could differ as to
whether the defendant’s actions were lawful, the
defendant is entitled to immunity. Malley v. Briggs,
475 U.S. 335, 341 (1986).

* See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997)
(“We do not require that an official demonstrate that he did not
violate clearly established federal rights; our precedent places
that burden upon plaintiffs.”).

38a

Although we now conclude that § 5 of the Dallas
City Charter creates a vested property right in em-
ployment at a former rank for executive-level offi-
cials, this decision is not apparent from Muncy. There
we were considering a due process claim in the con-
text of demotion, but we stated that executive rank
officials are “employees at will, and the city was free
to discharge them without cause.” Muncy, 335 F.3d at
402. If we are to respect the principle underlying
qualified immunity to the effect that officials must be
able reasonably to “anticipate when their conduct
may give rise to damages,” we cannot hold an official
liable for taking action that was arguably supported
by decisions of this court. See Davis v. Scherer, 468
U.S. 183, 195-96 (1984). Bolton’s claim against
Benavides in his personal capacity must be dismissed
based on qualified immunity, because reasonable
public officials could have differed on whether dis-
charging Bolton would violate his constitutional
rights.

In summary, because the charter creates for
Bolton a constitutionally protected property interest
in further employment, the judgment is REVERSED.
Bolton’s claims against Benavides in his individual
capacity are DISMISSED based on qualified immu-
nity. The remaining claims are REMANDED for
further proceedings not inconsistent with this opin-
ion.

39a

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION
TERRELL BOLTON, §
Plaintiff, §
y § Civil Action No.
. : § 3:04-CV-0501-K
CITY OF DALLAS, etal, §
Defendants. §

MEMORANDUM OPINION AND ORDER
(Filed Sept. 20, 2005)

The Court has before it Defendants’ Motion for
Summary Judgment. Because Plaintiff Terrell Bolton
(“Plaintiff”) was terminated and not demoted, Chap-
ter 12, Section 5 of the Dallas City Charter confers no

property rights on Plaintiff and for that reason, the
Court GRANTS the motion.

I. Factual Background

Plaintiff was appointed Chief of Police of the
Dallas Police Department (“DPD”) on August 20,
1999, to be effective October 1, 1999. On August 27,
2003, Defendant Ted Benavides (“Benavides”), Dallas
City Manager, terminated Plaintiff's employment. At
the time of termination, Benavides did not state the
reason for the action. At a later date, upon the request
of Plaintiff's counsel, Benavides stated in a letter
twenty reasons for the action. Benavides testified at his

40a

deposition that Plaintiff was not terminated for
cause.

II. Legal Standards

Summary judgment is appropriate when the
pleadings, affidavits and other summary judgment
evidence show that no genuine issue of material fact
exists and the moving party is entitled to judgment as
a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the burden of identifying those portions of the
record it believes demonstrate the absence of a genu-
ine issue of material fact. Celotex, 477 U.S. at 322-25,
Once a movant makes a properly supported motion,
the burden shifts to the nonmovant to show the
existence of a genuine fact issue for trial; but, the
nonmovant may not rest upon allegations in the
pleadings to make such a showing. id. at 321-25;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57
(1986). The nonmovant may satisfy this burden by
providing depositions, affidavits, and other competent
evidence; not with “conclusory allegations, specula-
tion, and unsubstantial assertions.” Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996) (en banc). Neither merely colorable evidence
nor a mere scintilla of evidence can defeat a motion
for summary judgment. Anderson, 477 U.S. at 249-52.
All evidence and reasonable inferences must be
viewed in the light most favorable to the nonmovant.
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).

4la

III. Property Interest

In his First Amended Complaint, Plaintiff claims
he has “a constitutionally protected property interest
in continued employment with the DPD at the last
Civil Service Rank he fF 2ld prior to being appointed to
the Executive Ranks.” Plaintiff contends the language
of Chapter 12, Section 5 of the Charter confers this
property interest on him. Section 5 states:

If the chief of the police department ...
was selected to that position from the ranks
of the police department and is removed from
the position on account of unfitness for the
discharge of the duties of the position, and
not for any cause justifying dismissal from
the service, the chief... shall be restored to
the rank and grade held prior to appoint-
ment to the position, or reduced to a lower
appointive rank.

Defendants contend Plaintiff did not have a
property interest in his continued employment with
the DPD. Specifically, they argue Section 5 did not
vest Plaintiff with a property interest because (1) he
was not appointed to the executive position from the
ranks of the department, (2) he was not terminated
for unfitness, and (3) Benavides had sufficient reason
to terminate Plaintiff.

Plaintiff responds that Section 5 vested him with
a property interest in continued employment with the
department because, since he was not removed “for
cause,” Section 5 required he be demoted rather than
terminated.

42a

A. Termination for Unfitness

The Court looks first to Defendants’ argument
that Section 5 did not vest Plaintiff with a property
interest in his continued employment with the DPD
because he was not terminated for unfitness. The
Court finds the opinions issued by the Fifth Circuit
and this district court in Muncy v. City of Dallas to
directly address the issue before the Court in this
case. Muncy v. City of Dallas, 2001 WL 1480770, Civ.
Nos. 99-CV-2960P, 00-CV-0588H (N.D. Tex. Nov. 19,
2001) (Solis, J.), aff’d, 335 F.3d 394 (5th Cir. 2003). In
Muncy, the plaintiff-police officers had been removed
from their appointed executive level positions with
the DPD and returned to their prior civil service
ranks prior to their complaints being filed against the
City. One plaintiff had been Executive Assistant Chief
of Police, the second highest command position within
the DPD, then was removed and demoted to Ser-
geant, his highest rankposition before being ap-
pointed to an executive level position. The other
plaintiff had been Deputy Chief of Police, but was
demoted to Lieutenant, his highest rank position. The
plaintiffs argued Section 5 conferred on them a
property interest in their appointed positions. This
court held:

Section 5 is a very specific provision applica-
ble only to one very limited circumstance.
Section 5 sets out the procedure for demotion
of an employee who was promoted to a high-
ranking police position who was found to be
unfit for such position. The Charter sets out

43a

a provision for dealing with this limited cir-
cumstance; it does not provide a blanket
property right for all high-ranking police of-
ficials.

Muncy, 2001 WL 1480770 at *7 (emphasis added). On
appeal, the Fifth Circuit concluded, “Section 5 does
not serve as a limit on the City’s ability to remove in
the first instance, but rather it serves as a limit on
the City’s ability to retain a former executive at his
previous rank.” Muncy, 335 F.3d at 399-400. The Fifth
Circuit found that an employee at an executive level
may be retained in the police department only when
“the ‘unfitness for duty’ does not rise to the level of
‘cause warranting dismissal.’” Jd. at 399. The court
also pointed out that removal of an executive level
employee is not conditioned on cause or even unfit-
ness. Jd. Rather, Section 5 addressed only this specific
instance of the City’s ability to retain an employee.
See id. at 399-400.

This Court acknowledges the property interest
the Muncy plaintiffs claimed was one in their contin-
ued employment in their executive level positions,
while this Plaintiff claims a property interest in his
continued employment in his prior civil service rank
prior to being in an executive level position. Despite
this difference, the analysis in the Muncy opinions
are on point, directly addressing the issue of whether
Section 5 confers any property rights to an executive
level employee. Both courts analyzed in depth Section
5 and to what situations it was intended to apply.
This Court understands these opinions to hold that

44a

Section 5 was intended to apply only to situations
involving the choice of the City to retain an executive
level employee removed from his position. Section 5
was not intended to provide the City an either/or
scenario in relation to the removal of an executive
level employee, in that either the employee is unfit
for duty and thereby demoted, or the employee is
terminated for cause. The Muncy opinions establish
for this Court that Section 5 was not intended to limit
the City to only two reasons for removing or termi-
nating an executive level employee, that being either
unfitness or cause. Muncy stands for the proposition
that the City manager may terminate the police chief
or the City manager may demote the police chief. If
the City manager chooses to demote the police chief,
then the police chief shall be placed at his prior civil
service position just before becoming chief. This case
applies to the situation involving the level to which
an executive level employee may be demoted if not
fired.

Applying the courts’ reasoning and holdings in
this case, this Court finds that Section 5 does not
confer any property rights to Plaintiff. Section 5 does
not apply in this case because Plaintiff was termi-
nated, not demoted, and the Muncy opinions establish
that Section 5 was intended to apply only to situa-
tions involving the demotion of an executive-level
position. See Muncy, 335 F.3d at 399-400; Muncy,
2001 WL 1480770, at *6-7.

Because the Court finds Plaintiff did not have a
property interest in his prior rank position, the Court

45a

need not address the viability of Plaintiff’s remaining
claims.

IV. Conclusion

The Court finds case law clearly provides that
Plaintiff did not have a property interest in his prior
rank position with the DPD by virtue of Section 5.
Accordingly, because no fact issue exists, the Court
GRANTS Defendants’ motion for summary judg-
ment.

SO ORDERED.

Signed September 20th, 2005.

s/ Ed Kinkeade
ED KINKEADE
UNITED STATES
DISTRICT JUDGE

46a

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 07-10999

TERRELL BOLTON
Plaintiff-Appellant
V.

CITY OF DALLAS TEXAS: CITY MAN-
AGER TEODORO BENAVIDES, In His
Official Capacity

Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Texas, Dallas

ON PETITION FOR REHEARING EN BANC
(Filed Sept. 9, 2008)
(Opinion 8/7/08, 5 Cir. ___, _~ _ F.3d__)

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as
a Petition for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. No member of the panel nor
judge in regular active service of the court having
requested that the court be polled on Rehearing En

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Banc (FED. R. App. P. and 5TH Cir. R. 35), the Petition
for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as
a Petition for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. The court having been polled
at the request of one of the members of the court and
a majority of the judges who are in regular active
service and not disqualified not having voted in favor
(FED. R. App. P. and 5TH Cir. R. 35), the Petition for
Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]
United States Circuit Judge

48a

STATUTE AND CHARTER
PROVISIONS INVOLVED

Section 1983 of 42 U.S.C. provides:

Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the
United States or other person within the ju-
risdiction thereof to the deprivation of any
rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to
the party injured in an action at law, suit in
equity, or other proper proceeding for re-
dress. |

Chapter III, section 15 of the Dallas City Charter
provides:

Neither the council nor any of its committees
or members shall dictate or attempt to dic-
tate any person’s appointment to, or removal
from, office or employment by the city man-
ager or any of the city manager’s subordi-
nates, or in any manner interfere in the
appointment of officers and employees in the
departments of administrative service vested
in the manager by this Chapter.

Chapter XII, section 5 of the Dallas City Charter
provided at all relevant times”:

* This provision was repealed in 2005, several years after
the events giving rise to this action. (App. 18a).

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If the chief of the police department ... was
selected to that position from the ranks of
the police department and is removed from
the position on account of unfitness for the
discharge of the duties of the position, and
not for any cause justifying dismissal from
the service, the chief... shall be restored to
the rank and grade held prior to appoint-
ment to the position, or reduced to a lower
appointive rank.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0841%3A1. Public record. Not legal advice.