Bullard v. City of Houston

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20700 _____________________

PAT BULLARD,

Plaintiff-Appellee,

versus

THE CITY OF HOUSTON, ET AL.,

Defendants,

JOHN MILES; BALDWIN CHIN; KELLY COLQUETTE,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the Southern District of Texas (CA-H-95-762) _________________________________________________________________

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.

I

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

-2- 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'

1 The Family Medical Leave Act claim is not at issue in this appeal.

-3- 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

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. Rocha, 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.

-4- II

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.

Fitzgerald, 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

-5- 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

(1991):

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. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 94 L.Ed.2d 523 (1987).

Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996).

III

A

(1)

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

-6- 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

-7- 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

rights.

(2)

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.

Ingle, 75 F.3d 207, 210 (5th Cir. 1996).3 In this case, taking

3 Qualified immunity shields government officials performing discretionary functions from civil liability, "as long as their actions could reasonably have been thought consistent with the

-8- 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 (1987).

-9- B

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

4 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). 5 He instead cites several procedural due process cases. 6 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--

-10- 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

claims.7

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 "fundamental"). 7 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:

-11- C

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

1188.

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).

-12- the same reason the First Amendment claim itself is sufficient to

withstand the defendants' motion for 12(b)(6) dismissal.8

IV

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

8 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).

-13- 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

-14- 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.

B

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

-15- 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

Colquette.

V

CONCLUSION

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

-16- for wrongful termination as to all three defendants, and affirm the

denial of immunity to defendant Colquette for the state defamation

claim.

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

-17- plaintiff's Fourteenth Amendment claim and the conspiracy claim

related thereto, and AFFIRM in all other respects.

REVERSED in part and AFFIRMED in part.

-18-