Bullard v. City of Houston ( 1996 )

                           FOR THE FIFTH CIRCUIT
                                No. 95-20700
          Appeals from the United States District Court for the
                        Southern District of Texas
                               July 2, 1996
    Before JOLLY, DUHÉ, and STEWART, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:*
         This appeal comes to us from the denial of a motion to dismiss
    pursuant to Federal Rule of Civil Procedure 12(b)(6), and raises
    questions of qualified and official immunity.        The only record
    before us is the complaint, which adequately sets out the facts of
    this case.   Very briefly stated, Pat Bullard, who interviewed and
          Pursuant to Local 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    this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
    videotaped DWI suspects for the Houston Police Department (the
    "HPD"), alleged in his complaint that the assistant district
    attorneys--the only appellants in this appeal--did not approve of
    his truthful testimony at DWI trials, that they attempted to
    pressure   him    to   testify   falsely,   that    when   he   refused   they
    complained to his superiors, that he reported the DAs to the state
    bar, and that he was wrongfully terminated from his civilian job
    with the HPD for refusing to testify falsely at two DWI trials.             He
    brought    various     state   and   federal   charges     against   numerous
    defendants.      These three DAs moved for dismissal of the complaint,
    claiming qualified or official immunity. The district court denied
    their motions, and this appeal followed.           We hold that Bullard has
    stated a claim for a violation of his First Amendment rights, but
    has failed to state a claim for a violation of his substantive due
    process rights under the Fourteenth Amendment.             Furthermore, and
    particularly in the light that the case comes to us on the barest
    record as a denial of a 12(b)(6) motion, we affirm the denial of
    official immunity under state law with respect to the state claims.
    We therefore affirm in part and reverse in part.
         Bullard brought this action under 42 U.S.C. § 1983, alleging
    (1) that he was wrongfully terminated in violation of the First
    Amendment in retaliation for exercising his right to speak out on
    a matter of public concern; (2) that the defendants' actions, along
    with the actions of other defendants not parties to this appeal,
    deprived him of both a liberty and a property interest without due
    process of law in violation of the Fourteenth Amendment; and (3)
    that the defendants' actions violated the Family Medical Leave
    Act.1       He also asserted pendant state law claims for wrongful
    termination, defamation, and intentional infliction of emotional
    distress.      Although Bullard sued the individually named defendants
    in both their official and personal capacities, the district court
    dismissed the official capacity suits against Miles, Chin, and
    Colquette as duplicative of the claims against Harris County.
    Miles, Chin, and Colquette moved to dismiss the claims against
    them, pursuant to Rule 12(b)(6).         The district court denied the
    motion in part and granted the motion in part, as follows:          it
    allowed all federal claims, as well as the wrongful termination
    claim against all three defendants, to proceed; it granted all
    three defendants' motions to dismiss the intentional infliction of
    emotional distress claims; and it denied Colquette's, but granted
    Miles' and Chin's motions to dismiss the defamation claim.
            This appeal followed. The primary issues before us today are:
    (1) whether the district court improperly denied the defendants'
          The Family Medical Leave Act claim is not at issue in this
    motion to dismiss Bullard's petition for failure to allege facts
    sufficient to overcome their qualified immunity defenses; and (2)
    whether the district court erred by refusing to dismiss Bullard's
    state law claims against the defendants.2
         Before considering the merits, we consider the basis for our
    jurisdiction. We conclude that we have jurisdiction to consider
    the appeals of both the state and federal immunity issues. In
    Mitchell v. Forsyth, 
    472 U.S. 511
    105 S. Ct. 2806
    86 L. Ed. 2d 411
    (1985), the Supreme Court held that "a district court's denial of
    a claim of qualified immunity, to the extent that it turns on an
    issue of law, is an appealable `final decision' within the meaning
    of 28 U.S.C. § 1291 notwithstanding the absence of a final
    judgment." Id. at 530, 105 S.Ct. at 2817. We conclude that the
    denial of a qualified immunity motion at the 12(b)(6) stage, where
    the district court must assume that factual allegations are true,
    is a "purely legal" denial of qualified immunity. We thus have
    appellate jurisdiction to review the district court's denial of the
    three defendant DAs' motion for federal qualified immunity.
         We also find that we have jurisdiction over the appeal of the
    denial of official immunity under Texas law. Recently, in Cantu v.
    77 F.3d 795
     (5th Cir. 1996), we faced a nearly identical
    question, and wrote:
         We have previously held that an order denying qualified
         immunity under state law is immediately appealable as a
         "final decision," provided that the state's doctrine of
         qualified immunity, like the federal doctrine, provides
         a true immunity from suit and not a simple defense to
         liability. . . .
              We are persuaded that Texas law insulates government
         officials from the burden of suit, as well as from civil
         liability for damages. . . .
              [O]rders premised on the denial of qualified
         immunity under Texas state law are appealable in federal
         court to the same extent as district court orders
         premised on the denial of federal law immunity . . . .
    Cantu, 77 F.3d at 803-04 (citations omitted).
         We therefore conclude that we have jurisdiction to hear the
    defendants' appeal in its entirety.
          We review the district court's ruling on a Rule 12(b)(6)
    motion to dismiss de novo.               We accept all well-pleaded facts as
    true, and view them in the light most favorable to the plaintiff.
    The plaintiff's complaint should only be dismissed if it appears
    beyond doubt that the plaintiff can prove no set of facts in
    support of his claim, which would entitle him to relief.
          Qualified       immunity         extends      to     governmental         officials
    performing discretionary functions "insofar as their conduct does
    not violate clearly established statutory or constitutional rights
    of   which    a    reasonable      person    would       have    known."       Harlow   v.
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    , 2738, 
    73 L. Ed. 2d 396
    (1982).      To overcome a qualified immunity defense, the plaintiff
    must allege facts that, if proved, would demonstrate that the
    defendants violated clearly established statutory or constitutional
    rights.      Wicks v. Mississippi State Employment Services, 
    41 F.3d 991
    , 995 (5th Cir.), cert. denied, __U.S.__, 
    115 S. Ct. 2555
    132 L. Ed. 2d 809
       (1995).         A    plaintiff    may        not    rest   on   general
    characterizations, but must speak to the factual particulars of the
    alleged actions, "at least when those facts are known to the
    plaintiff      and    are    not       peculiarly    within           the   knowledge   of
    defendants."    Schultea v. Wood, 
    47 F.3d 1427
    , 1431 (5th Cir. 1995)
    (en banc).
         We analyze the complaint under              the framework presented in
    Siegert v. Gilley, 
    500 U.S. 226
    111 S. Ct. 1789
    114 L. Ed. 2d 277
         First, the court must determine whether the plaintiff has
         alleged   a   violation    of   a  clearly    established
         constitutional right. Id. at 231, 111 S.Ct. at 1792-93.
         If the plaintiff fails this step, the defendant is
         entitled to qualified immunity. If he is successful, the
         issue becomes the objective legal reasonableness of the
         defendant's conduct under the circumstances. Anderson v.
    483 U.S. 635
    , 638, 
    107 S. Ct. 3034
    , 3038, 
    94 L. Ed. 2d 523
    Baker v. Putnal, 
    75 F.3d 190
    , 198 (5th Cir. 1996).
         The DAs do not contest that Bullard generally asserts a First
    Amendment    constitutional    right       to    testify   truthfully   without
    interference from state actors.                 The district court, however,
    further determined that Bullard adequately alleged that these DAs,
    along   with   the   other   defendants,         retaliated   against   him   by
    effecting his discharge.      The DAs argue that because they were not
    Bullard's employers, and thus had no power to discharge him, they
    cannot be held liable for Bullard's termination.              Having reviewed
    this   circuit's   earlier   jurisprudence   on   causation   in   similar
    circumstances, we disagree.
           In Professional Ass'n of College Educators v. El Paso County
    Community College Dist., 
    730 F.2d 258
     (5th Cir.), cert. denied, 
    469 U.S. 881
    105 S. Ct. 248
    83 L. Ed. 2d 186
     (1984) (PACE), a college
    administrator sued a college president under a First Amendment
    retaliation theory.      The plaintiff alleged that the president
    suspended him without pay and brought formal charges recommending
    to the Board of Trustees that he be discharged, because of his
    formation of the Association of Administrators.          The jury found
    that "a substantial or motivating factor for the discharge of [the
    plaintiff] was his associational activity," and returned a verdict
    for the plaintiff.    We affirmed, and wrote:
                The causation issue in first amendment cases is purely
           factual: did retaliation for protected activity cause the
           termination in the sense that the termination would not have
           occurred in its absence?     It is not necessary that the
           improper motive be the final link in the chain of causation:
           if an improper motive sets in motion the events that lead to
           termination that would not otherwise occur, "intermediate
           step[s] in the chain of causation" do not necessarily defeat
           the plaintiff's claim.
    PACE, 730 F.2d at 266 (quoting Bowen v. Watkins, 
    669 F.2d 979
    , 986
    (5th Cir. 1982)).
           The defendants attempt to distinguish PACE.      They argue that
    the relationship between the college president and the Board of
    Trustees was close enough to compel a finding of causation, because
    they were members of the same institution and employed by the same
    entity. They contend that the rationale underlying our decision in
    PACE was an implicit finding that the school president could not
    use the Board of Trustees as a shield for a decision made by the
    Board, but with the president's guidance.
         Although there is some force to the defendants' argument, we
    cannot say, at this early stage in the litigation and with no
    record evidence yet before us, that here "retaliation for protected
    activity [did not] cause the termination in the sense that the
    termination would not have occurred in its absence."   Id.   Mindful
    that it was the defendants who chose to raise the qualified
    immunity claim at the Rule 12(b)(6) stage, and expressing no
    opinion on Bullard's ultimate ability to prove that some improper
    motive led to Bullard's firing from the HPD, we conclude that
    Bullard has adequately alleged a violation of his First Amendment
         Having determined that Bullard has alleged a violation of a
    clearly established constitutional right, we still must decide if
    the defendants' conduct was objectively reasonable.     Ganther v.
    75 F.3d 207
    , 210 (5th Cir. 1996).3    In this case, taking
          Qualified immunity shields government officials performing
    discretionary functions from civil liability, "as long as their
    actions could reasonably have been thought consistent with the
    Bullard's allegations as true, and viewing them in the light most
    favorable to Bullard, and finding the constitutional right clearly
    established at the time of the subject incidents, we cannot say at
    this point and on this record that the three defendants, as a
    matter   of   law,   acted    with   objective    legal   reasonableness   in
    reacting to Bullard's testimony at the DWI trials.           The gravamen of
    Bullard's     allegation     is   that,   in   retaliation   for   testifying
    truthfully as to the state of the allegedly drunken defendants, the
    three DAs set out on a campaign, ultimately successful, to have him
    terminated from his job with the HPD.             Bullard's allegations in
    this case are sufficient to withstand 12(b)(6) dismissal, and we
    affirm the district court's refusal to grant qualified immunity to
    the defendants at this stage in the litigation.
    rights they are alleged to have violated." Rankin v. Klevenhagen,
    5 F.3d 103
    , 108 (5th Cir. 1993) (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 638, 
    107 S. Ct. 3034
    , 3038, 
    97 L. Ed. 2d 523
         Bullard also argues that "he had a protected property right in
    employment by the City of Houston by virtue of state law that
    prohibits termination for refusing to perform an illegal act,"4
    Appellee's Br. at 15.       He contends that this state property right
    is protected under the substantive due process clause of the
    Fourteenth    Amendment,     and      that    the   DAs    deprived    him   of   this
    property right in the following manner: "Miles, Chin and Colquette
    provided known false information to the City of Houston which
    resulted in his termination."            Id. at 16.        This act, he seems to
    argue, is so arbitrary and capricious as to amount to a due process
    deprivation, notwithstanding the subsequent procedural hearing he
    received     from   the   City   of    Houston.       He    makes     this   argument
    independent of any procedural due process right that he may have.
         Bullard cites no authority to support his theory of this
    substantive due process rights claim,5 and does not otherwise
    develop this argument in any persuasive manner.6                    Although Sabine
         See Sabine Pilot Service, Inc. v. Hauck, 
    687 S.W.2d 733
    , 735
    (Tex. 1985) (establishing a narrow public policy exception to
    Texas' employment-at-will doctrine, providing an entitlement to
    employment to the extent an employee may not be terminated for
    refusing to commit an illegal act).
            He instead cites several procedural due process cases.
            Furthermore, even if Bullard had made an original and
    persuasive argument, it would be difficult to recognize such a
    substantive due process claim in the light of the Supreme Court's--
    may well support an allegation of a property right in this case,
    Bullard has shown no more than his constitutional entitlement to
    procedural due process to vindicate that right--a right he does not
    press as to these three defendants.        Furthermore, the way we are
    given to understand this vaguely articulated claim, it is no more
    than a restatement of his First Amendment claim, that is, that the
    state is prohibited from retaliating against him for testifying
    truthfully--a    constitutional    right     that   we   have   earlier
    acknowledged is sufficiently alleged in the complaint.          In any
    event, whatever substantive due process right that Bullard is
    attempting to evoke, it certainly was not then or now clearly
    established.    We therefore reverse the district court's decision
    that allows Bullard to proceed with his Fourteenth Amendment
    claims, and the conspiracy claims based on the Fourteenth Amendment
    and our own--rulings limiting the expansion of substantive due
    process rights. See e.g., Albright v. Oliver, 
    114 S. Ct. 807
    , 812
    (1994) (noting Court's reluctance to expand concept of substantive
    due process, and that protections of substantive due process have
    mostly been accorded to matters relating to marriage, family,
    procreation, and right to bodily integrity); Griffith v. Johnston,
    899 F.2d 1427
     (5th Cir. 1990) (noting that courts must resist
    temptation to augment substantive reach of Fourteenth Amendment,
    particularly if it requires redefining category of rights deemed
         Bullard's unsuccessful "Fourteenth Amendment substantive due
    process claim" may be explained by the confusion surrounding the
    incorporation of certain of the constitutional amendments to the
    States. As we recently explained:
         Bullard also alleges that the three defendants were part of a
    civil conspiracy to violate his constitutional rights. A plaintiff
    may assert a conspiracy to deprive him of protected constitutional
    rights under 42 U.S.C. § 1983.       Pfannstiel v. City of Marion, 
    918 F.2d 1178
    , 1187 (5th Cir. 1990).         To prevail on such a claim, the
    plaintiff   must   establish   (1)   the    existence   of   a   conspiracy
    involving state action and (2) a deprivation of civil rights in
    furtherance of the conspiracy by a party to the conspiracy.             Id.
    If the steps allegedly taken by the official conspirators in
    furtherance of the alleged conspiracy are objectively reasonable,
    then the officials are entitled to qualified immunity.              Id. at
         Because we have held that Bullard did not allege a cognizable
    Fourteenth Amendment deprivation claim, his conspiracy claim based
    on those same facts also collapses.        His conspiracy claim arising
    from and tied to his First Amendment claim, however, survives for
              The first amendment is made applicable to the states
         through the fourteenth amendment's due process clause.
         McIntyre v. Ohio Elections Comm'n, ___U.S.___, 
    115 S. Ct. 1511
    131 L. Ed. 2d 426
     (1995). As such, the plaintiffs'
         first amendment retaliation claim may be characterized as
    a "substantive due process" claim. See Brennan v. Stewart, 
    834 F.2d 1248
     (5th Cir. 1988).
    Rolf v. City of San Antonio, 
    77 F.3d 823
     (5th Cir. 1996).
    the same reason the First Amendment claim itself is sufficient to
    withstand the defendants' motion for 12(b)(6) dismissal.8
         Finally, we turn to the state claims.          Texas law allows the
    affirmative defense of official immunity to be raised where a
    defendant demonstrates that he has acted in the performance of
    discretionary duties performed in good faith within the scope of
    the official's authority.        City of Lancaster v. Chambers, 
    883 S.W.2d 650
    , 653 (Tex. 1994).     The district court dismissed several
    of the state law claims against the defendants.       It also upheld the
    wrongful termination claims against all three defendants.
         The defendants first argue that they were entitled to immunity
    respecting   Bullard's   claim   that    they   conspired   to   wrongfully
         The defendants argue that Bullard has not alleged sufficient
    specific facts in support of his conspiracy claim.          Bullard
    responds   that   he   alleged   "that   there   was   considerable
    communication, verbal and written, between the three assistant
    district attorneys and with members of the Houston Police
    Department concerning their alleged problems with Bullard and their
    assertion that he was allegedly incompetent." We conclude that
    Bullard has alleged facts from which a jury could infer that Miles,
    Chin and Colquette, along with the other named defendants, had a
    common goal--adverse action against Bullard for testifying
    truthfully and protesting the improper conduct of Miles, Chin and
    Colquette. Compare Thomas v. Harris County, 
    784 F.2d 648
    , 652 (5th
    Cir. 1986), cert. denied, 
    113 S. Ct. 1275
     (1993) (allowing
    conspiracy claim, on allegations similar to those contained in the
    case at bar, to survive summary judgment).
    terminate him from his position with the HPD.              While we do not
    speculate    whether    Bullard     ultimately    can   prove       a    wrongful
    termination claim, we find no error in the district court's refusal
    to dismiss the claim at this juncture.          The Texas Supreme Court has
    announced that the test of an official's good faith (one of the
    three elements of official immunity) "is derived substantially from
    the test that has emerged under federal immunity law for claims of
    qualified immunity . . . ."         Chambers, 883 S.W.2d at 656.          For the
    same reasons that led us to conclude that the defendants could not
    escape Bullard's First Amendment retaliation allegations based on
    their mere assertions that their acts were objectively reasonable,
    we also reject their claims for official immunity from the state
    law wrongful termination claims.          Minimal discovery in this case
    might have led to a different result, but it was the defendants who
    chose to come quickly to this court on a sparse record, and before
    they developed all relevant facts.
          Similarly, we find no error in the district court's refusal to
    dismiss the conspiracy claim arising from the wrongful termination.
    The defendants argue that Bullard has made "no showing under state
    law   that   Miles,   Chin,   and   Colquette    were   part   of       any   civil
    conspiracy or joint effort to terminate Bullard in violation of his
    right not to be terminated for refusing to do an illegal act."
    Bullard, however, is not yet required to make a "showing" of a
    conspiracy, to survive the defendants' Rule 12(b)(6) motion.           To
    state a claim for conspiracy under Texas law, he needs only to
    allege that (1) there was a combination of two or more persons or
    entities; (2) there was an oral or written agreement among those
    persons or entities for a common purpose; (3) each of those persons
    or entities had knowledge of that purpose; (4) each of those
    persons or entities intended to participate therein; and (5) that
    one or more overt acts were done in furtherance of the conspiracy.
    Riquelme Valdes v. Leisure Resource Group, Inc., 
    810 F.2d 1345
    1351 (5th Cir. 1987). Texas has no "heightened pleading standard,"
    and the Texas Supreme Court has noted that proof of a civil
    conspiracy   may,   and   usually   must   be   made   by   circumstantial
    evidence.    See Schlumberger Well Surveying Corporation v. Nortex
    Oil and Gas Corp., 
    435 S.W.2d 854
    , 858 (Tex. 1969).          Consequently,
    we find no error in the district court's refusal to grant official
    immunity on the conspiracy to wrongfully terminate claim at this
    stage of the proceedings.
         Although the district court dismissed the defamation claims
    against Miles and Chin, it refused to dismiss the claim against
    Colquette. The district court did not consider the adequacy of the
    defamation claim; it simply refused to dismiss because, unlike the
    claims against Miles and Chin, the Colquette claim was not barred
    by the statute of limitations. In this case, Colquette briefly and
    conclusorily argues that her decision to submit the offending
    affidavit (that it was "common knowledge" among several defense
    attorneys that they should not stipulate to the videotape whenever
    Bullard was the PSO because Bullard generally supported their
    defense), was part of the performance of her discretionary duties,
    was within the scope of her authority, and was performed in good
    faith.   We have only the pleadings to test this statement against.
    The pleadings indicate that the letter was knowingly false, and was
    performed not in any measure of good faith, but instead as a
    vindictive attempt to have Bullard removed from his job.                Whether
    subsequent discovery can support these allegations with credible
    evidence   is    a   question   that    will    be   answered   later   in   the
    proceedings on remand.      We therefore hold that the district court
    did not err in its refusal to dismiss the defamation claim against
         We sum up:       we affirm the district court's ruling denying
    immunity to the three DAs with respect to Bullard's First Amendment
    claim    and    related   conspiracy        claim,   but   dismiss   Bullard's
    Fourteenth Amendment claim and related conspiracy claim. We affirm
    the district court's denial of official immunity under Texas law
    for wrongful termination as to all three defendants, and affirm the
    denial of immunity to defendant Colquette for the state defamation
         At the oral argument of this case, counsel for the defendants
    candidly acknowledged that the 12(b)(6) motion in this case was an
    attempt to "pare down the issues" before trial.    Issues might be
    pared down more effectively, however, if minimal discovery is
    conducted before the qualified immunity issues are tested.
         Based on the foregoing, we REVERSE the district court's
    refusal to grant qualified immunity to the defendants on the
    plaintiff's Fourteenth Amendment claim and the conspiracy claim
    related thereto, and AFFIRM in all other respects.
                               REVERSED in part and AFFIRMED in part.