Johnson v. Bowe ( 2021 )

Case: 19-40615 Document: 00515817958 Page: 1 Date Filed: 04/12/2021
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-40615
FILED
April 12, 2021
Lyle W. Cayce
KARISSA JOHNSON, Clerk
Plaintiff–Appellee,
v.
CITY SECRETARY THERESA BOWE; ANITA RODRIGUEZ; KEVIN
COLEMAN; STEVEN KEITH STARY,
Defendants–Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:19-CV-11
Before OWEN, Chief Judge, and SOUTHWICK and OLDHAM, Circuit Judges.
PRISCILLA R. OWEN, Chief Judge:*
Karissa Johnson sued several city officials pursuant to 42 U.S.C. § 1983,
alleging that they violated her free speech rights under the First Amendment,
including engaging in retaliation. The city officials moved to dismiss for failure
to state a claim and on qualified immunity grounds. The district court denied
the motion to dismiss, holding that a qualified immunity determination was
premature without discovery. The city officials filed an interlocutory appeal
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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with this court. We reverse in part, dismiss for lack of jurisdiction in part, and
remand.
I
In June 2017, Karissa Johnson and her husband decided to deliver their
first daughter at their home in Yoakum, Texas with the help of two midwives.
When the baby went into the breech position right before delivery, the
midwives directed Johnson’s husband to call for emergency services to take his
wife to the nearest hospital. Four emergency medical technicians (EMTs)
responded to the call. They included Steven Stary, who worked for Yoakum’s
fire department, and James Hercheck, who was the captain of Yoakum’s fire
department. Stary allegedly refused to help Johnson and instead argued with
Johnson’s husband about “the way he placed the call for service.”
While other EMTs began to move Johnson into the ambulance, the
midwives advised the EMTs to place Johnson “on her side to decrease stress
on the baby.” Johnson alleged that Stary delayed transporting her because he
argued with the midwives and demanded that Johnson be placed on the
stretcher on her back. Hercheck overruled Stary and had Johnson taken to the
hospital on her side. Johnson gave birth to her daughter at the hospital.
Johnson’s daughter was so oxygen-deprived that the attending physician
believed she would not have lived had there been any additional delays in
obtaining treatment.
Stary allegedly began to “spread rumors of the situation at . . . Johnson’s
home to unrelated third parties,” “criticizing her husband’s placement of the
call for emergency services to those who had no right to that information.”
Johnson believed that this gossip was a violation of federal health privacy laws.
In October 2017, Johnson asked Kevin Coleman, Yoakum’s city
manager, to add her to the agenda for the upcoming city council meeting.
Johnson informed Coleman that she wanted “to state a complaint about a city
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employee.” Coleman refused Johnson’s request, citing Yoakum’s policy not to
hear complaints regarding employees at public city council meetings. Coleman
instead had Johnson fill out a written complaint, which he said he would
handle privately.
Johnson suspected that this treatment was discrimination based on
viewpoint, including her identity as speaker. In 2015, the city council had
allowed employees of the police and fire departments “to complain about each
other.” The city council had also “allowed praise of various city employees to
be placed on the agenda through the years.” These agenda items included
praise for a librarian and for a finance director. There had also been “a history
of both complaining [about] and praising” city employees at city council
meetings over the years.
In response to her suspicions, Johnson hired an attorney; the attorney
wrote the city council and Coleman. The attorney alleged that Coleman and
the city council “were engaging in a prior restraint” of Johnson’s speech and
asked “that she be placed on the council’s agenda.” The city’s attorneys again
cited the policy against having employee complaints placed on the city council
agenda. The city’s attorneys told Johnson “that the only city employee she
could complain about in a public meeting was Kevin Coleman.” The rationale
was that the city manager was the only city employee about whom the city
council made employment decisions, so the city manager was the only
employee about whom the city council would hear complaints at public city
council meetings. The city’s attorneys thought that since the city manager
oversaw all other city employees, complaints about those employees should be
made solely to the city manager.
Johnson asked to be placed on the upcoming agenda so she could
complain about Coleman not placing her initial complaint on the previous
agenda. Her request was granted, and Johnson read her complaint about
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Coleman at the November 2017 city council meeting. Anita Rodriguez,
Yoakum’s mayor, then reminded Johnson of the city’s policy against placing
complaints about city employees on the agenda. Johnson wanted her
complaint against Stary in the public record so that Stary’s alleged actions,
which almost cost Johnson’s daughter her life, could be known to the public.
Johnson was concerned that another municipality would hire Stary if he were
allowed to resign quietly. In fact, in January 2018, Stary did resign from
Yoakum’s fire department and was hired by another nearby local government.
In May 2018, Johnson asked Coleman to place her on the agenda “to give
praise to Fire Department Captain Hercheck and other EMTs and firefighters
employed by” Yoakum. Coleman placed Johnson on the May agenda but
“reiterated to her that she would not be allowed to criticize anyone during her
comments.” At the meeting, Johnson read a prepared statement. The council
allowed her to thank Hercheck but not criticize Stary. Johnson said,
“[Herchek] . . . remained cool, calm, collected, and in control while Mr. Stary
was busy doing an excellent job criticizing my husband about how he placed
the call for service.” Rodriguez “physically reacted” when Johnson said Stary’s
name and glanced over at Theresa Bowe, Yoakum’s city secretary. When
Johnson said Stary’s name a second time, Rodriguez said, “[P]oint of order.”
Bowe stated that employee complaints were not allowed in public city council
meetings, and Rodriguez then approved a recess “to bring the meeting to
order.”
Johnson left the podium without speaking another word, gathered her
infant daughter, and proceeded to leave the city council’s chambers. Bowe told
Johnson that they would speak of what had just happened outside. Johnson
said she had no intention of discussing it with Bowe and then left the building.
Bowe followed Johnson outside, and with several onlookers, castigated her for
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complaining about Stary. Bowe, Rodriguez, and Coleman then allegedly had
a police officer follow Johnson and her daughter as they drove away.
Johnson sued the City of Yoakum, as well as Rodriguez and Bowe, in
federal district court “for retaliating against her for exercising First
Amendment rights.” She also sued for injunctive and declaratory relief to
prevent Rodriguez, Bowe, and Coleman from enforcing the unwritten policy
prohibiting Johnson from making employee complaints at public city council
meetings. She further sued the City of Yoakum for numerous forms of
declaratory relief and Stary for a declaration that he violated federal health
privacy laws. The city officials made a motion to dismiss for failure to state a
claim and qualified immunity. The district court denied the motion on the
basis that it was premature, and that discovery was necessary. This
interlocutory appeal followed.
II
We first examine our jurisdiction. The collateral order doctrine allows
us “to review the ‘small category of decisions that, although they do not end
the litigation, must nonetheless be considered final.’” 1 Under the collateral
order doctrine, we have jurisdiction to hear interlocutory appeals regarding the
denial of qualified immunity on a motion to dismiss. 2 “[Q]ualified immunity
applies only to claims for money damages.” 3 Municipalities and public officials
1 Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 268 (5th
Cir. 2007) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 41-42 (1995)).
2 See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (“[T]his Court has been careful to say
that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a
proceeding is a ‘final decision’ within the meaning of § 1291.” (citing Behrens v. Pelletier, 516
U.S. 299, 307 (1996))); Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008); see also Zarnow v.
City of Wichita Falls, 500 F.3d 401, 406 (5th Cir. 2007).
3 Waller v. Hanlon, 922 F.3d 590, 598 (5th Cir. 2019) (citing Morgan v. Swanson, 659
F.3d 359, 365 n.3 (5th Cir. 2011) (en banc)); see also Robinson v. Hunt County, 921 F.3d 440,
452 (5th Cir. 2019) (“Qualified immunity, however, is a defense to monetary damages and
‘do[es] not extend to suits for injunctive relief under 42 U.S.C. § 1983.’” (alteration in original)
(quoting Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 n.1 (5th Cir. 1997))).
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in their official capacity do not enjoy qualified immunity against § 1983
actions—only officials in their individual capacities may assert qualified
immunity. 4 Johnson’s only claims for money damages against officials in their
individual capacities are her First Amendment retaliation claims against
Rodriguez and Bowe. Therefore, this court has jurisdiction over those claims
under the collateral order doctrine.
The city officials urge us to exercise pendent interlocutory appellate
jurisdiction over other issues in this case. The exercise of pendent
interlocutory appellate jurisdiction over additional claims, when permitted, is
discretionary, 5 and such jurisdiction “is looked on with disfavor,” with
exceptions not relevant to this case. 6 We therefore decline to exercise pendent
interlocutory appellate jurisdiction here, and we will only consider the First
Amendment retaliation claims against Rodriguez and Bowe in their individual
capacities. All other claims that the city officials ask us to review are dismissed
for lack of appellate jurisdiction.
4 See Zarnow, 500 F.3d at 406 (citing Burge v. Par. of St. Tammany, 187 F.3d 452, 476
(5th Cir. 1999)).
5 See, e.g., Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 468 (5th Cir. 2014)
(“Pendent appellate jurisdiction may exist where, in the interest of judicial economy, courts
have discretion to review interlocutory rulings related to independently appealable orders
when the two are inextricably intertwined.” (internal quotation marks omitted) (quoting
Byrum v. Landreth, 566 F.3d 442, 449 (5th Cir. 2009))); Morin v. Caire, 77 F.3d 116, 119 (5th
Cir. 1996); see also Escobar v. Montee, 895 F.3d 387, 392-93 (5th Cir. 2018). We note that the
discretion to exercise pendent interlocutory appellate jurisdiction does not include pendent
party interlocutory appellate jurisdiction over parties that the collateral order doctrine does
not already bring into the appeal. See Swint, 514 U.S. at 38 (“The commission’s appeal, we
hold, does not fit within the ‘collateral order’ doctrine, nor is there ‘pendent party’ appellate
authority to take up the commission’s case.”); Zarnow, 500 F.3d at 407 (“[W]e have refused
to recognize ‘so strange an animal as pendent party interlocutory appellate jurisdiction.’”
(quoting McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir. 1989))); 16 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3937 (3d ed. 2019) (noting that “the Supreme Court has rejected pendent party appeal
jurisdiction” in the context of qualified immunity).
6 Zarnow, 500 F.3d at 407 (internal quotation marks omitted) (quoting McKee, 877
F.2d at 413).
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III
Johnson contends that “[b]y attaching evidence to their Motion to
Dismiss,” the city officials “transformed” that motion “into a Motion for
Summary Judgment before discovery had been conducted.” We disagree.
“Documents that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are
central to her claim.” 7 Documents can also be considered part of the pleadings
if the court may take judicial notice of them. 8
Here, the city officials attached to their motion to dismiss the agenda
and minutes of the city council meeting at which Johnson complained about
Coleman, the agenda and minutes of the city council meeting at which Johnson
praised Hercheck, the policy adopted by the city for employee discipline, and
the policy adopted by the city for the agenda procedure of city council meetings.
These documents are verified by an affidavit from Bowe. Johnson’s complaint
references both agendas and both policies. These documents are also central
to Johnson’s claims of viewpoint discrimination. The district court correctly
considered them part of the pleadings. Similarly, since courts may take
judicial notice of public records like a city council’s meeting minutes, the
district court also properly considered the minutes as part of the pleadings. 9
The documents the city officials attached to their motion to dismiss did not
transform that motion into a motion for summary judgment as Johnson
7 Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
8 See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir.
2019) (first citing Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007); and then citing
R2 Invs. LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005)).
9 See Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053, 1062 n.24 (7th Cir. 2016) (“We
may take judicial notice of the City Council’s meeting minutes because they are a document
in the public record.” (citing Pugh v. Tribune Co., 521 F.3d 686, 691 n.2 (7th Cir. 2008))); see
also FED. R. EVID. 201(b); Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 954 n.3
(9th Cir. 2011).
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asserts.
IV
To negate Rodriguez’s and Bowe’s qualified immunity defenses to
Johnson’s claims of retaliation against them in their individual capacities,
Johnson must show that (1) a violation of a constitutional right is alleged, and
(2) the right was clearly established at the time of the violation. 10
To succeed on her claim that Rodriguez and Bowe violated Johnson’s
constitutional right to be free from First Amendment retaliation, Johnson
must establish that: (1) she was “engaged in constitutionally protected
activity,” (2) the city officials’ actions caused her “to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in that
activity,” and (3) the city officials’ “adverse actions were substantially
motivated against [Johnson’s] exercise of constitutionally protected conduct.” 11
Johnson’s retaliation claim fails because she cannot show that she
“suffer[ed] an injury that would chill a person of ordinary firmness from
continuing to engage in” her speech. 12 In her brief, Johnson states that her
injuries were being “publicly shamed” by Bowe in front of a small gathering of
people outside the city council meeting, being “chased away” from the city
council meeting by a police officer, and being criticized by Bowe to former
colleagues. We are bound by this court’s precedents, which state that these
alleged injuries are not enough. 13
In Colson v. Grohman, we observed that the plaintiff “alleged only that
she was the victim of criticism, an investigation (or an attempt to start one),
10 See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
11 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (first citing Carroll v. Pfeffer,
262 F.3d 847, 850 (8th Cir. 2001); then citing Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.
2001); and then citing Lucas v. Monroe County, 203 F.3d 964, 973 (6th Cir. 2000)).
12 Id.13 See id.8
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and false accusations: all harms that . . . are not actionable under our First
Amendment retaliation jurisprudence.” 14 If criticism, false public accusations,
and an attempted criminal investigation are not substantial enough injuries to
“chill a person of ordinary firmness,” 15 then neither are Johnson’s lesser
injuries of enduring some criticism and being followed by a police officer on a
single occasion when leaving a public meeting.
Johnson’s First Amendment retaliation claims against Bowe and
Rodriguez in their individual capacities fail the first prong of the qualified
immunity test. Accordingly, we need not consider the second prong of the
qualified immunity test. Bowe and Rodriguez are entitled to qualified
immunity in their individual capacities against Johnson’s First Amendment
retaliation claims as they are currently pleaded.
* * *
For these reasons, we REMAND Johnson’s First Amendment retaliation
claims against Bowe and Rodriguez in their individual capacities, and direct
that these claims be dismissed based on qualified immunity; we DISMISS for
lack of jurisdiction the remaining issues on appeal.
14 174 F.3d 498, 512 (5th Cir. 1999); see also Slegelmilch v. Pearl River Cnty. Hosp. &
Nursing Home, 655 F. App’x 235, 239-40 (5th Cir. 2016); Matherne v. Larpenter, 216 F.3d
1079, 1079 (5th Cir. 2000) (unpublished table decision); Breaux v. City of Garland, 205 F.3d
150, 157-58 (5th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369, 376-77 (5th Cir.
1998); Pierce v. Tex. Dep’t of Crim. Just., Institutional Div., 37 F.3d 1146, 1150 (5th Cir. 1994).
15 Keenan, 290 F.3d at 258; see Colson, 174 F.3d at 512.
9