Broussard v. Jefferson County et al

Filing 47

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF U. S. MAGISTRATE JUDGE GRANTING MOTION TO DISMISS. Broussard's claims are dismissed with prejudice. A final judgment will be entered separately. Signed by Judge Marcia A. Crone on 3/22/17. (mrp, )

UNITED STATES DISTRICT COURT
STEVEN BROUSSARD,
Plaintiff,
v.
JEFFERSON COUNTY and G. MITCH
WOODS, Individually and in his Official
Capacity as Sheriff of Jefferson County,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:15-CV-309

ORDER ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE GRANTING MOTION TO DISMISS
This case is referred to United States Magistrate Judge Zack Hawthorn for pretrial
management.

Doc. No. 10.

Pending before the court are Plaintiff Steven Broussard’s

objections (Doc. No. 45) to Judge Hawthorn’s report and recommendation (Doc. No. 44)
granting Defendants Jefferson County and Sheriff Mitch Woods’ “12(b)(6) Motions to Dismiss
Plaintiff’s First Amended Complaint and Assertion of Qualified Immunity” (Doc. No. 30).
Broussard timely filed objections to the report and recommendation.
A party who files timely, written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3).
“Parties filing objections must specifically identify those findings [to which they object].
Frivolous, conclusive or general objections need not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

The court has reviewed Broussard’s objections and concludes that they are without merit.
Broussard first argues that Judge Hawthorn’s report misapplied Davis v. McKinney, which
Broussard believes requires the court “‘to consider the Connick factors of content, context, and
form, and determine whether the speech is public or private based on these factors.’” Doc. No.
45, at 2 (quoting Davis v. McKinney, 518 F.3d 304, 311 (5th Cir. 2008) (quoting Teague v. City
of Flower Mound, 179 F.3d 377, 382 (5th Cir. 1999))). What Broussard omits from his citation
to Davis, however, is the Fifth Circuit’s acknowledgment in the very next sentence of its opinion
that the Supreme Court’s holding in Garcetti v. Ceballos “changed this analysis in ways not yet
fully determined.” Davis, 518 F.3d at 311 (citing Garcetti v. Ceballos, 547 U.S. 410 (2006)).
Thus, rather than continuing to apply the Connick factors of content, context, and form, as
Broussard requests in the present matter, the Davis court acknowledged that Garcetti shifts the
focus from the content of the speech to the role the speaker occupied at the time the speech was
made. Davis, 518 F.3d at 312 (citing Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692
(5th Cir. 2007). Accordingly, the Davis court parsed the six different communications at issue
to determine which the Plaintiff made as an employee and which she made as a private citizen.
Id. at 315-16.
Judge Hawthorn applied the same formula when considering Broussard’s communications
and distinguished between those he made as an employee and those he made to various members
of the community as a private citizen. Doc. No. 44, at 9-11. After identifying the six instances
where Broussard spoke as a private citizen, Judge Hawthorn concluded that Broussard failed to
allege that Woods was aware of any of those instances, and thus failed to adequately allege the
fourth element of his prima facie case for First Amendment retaliation. See Dearman v. Stone
Cnty. Sch. Dist., 832 F.3d 577, 581-82 (5th Cir. 2016); Wetherbe v. Smith, 593 F. App’x 323,
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328 (5th Cir. 2014). Broussard does not contest this finding in his objections, and does not point
to any facts alleged in his Amended Complaint that show Woods was aware of any comments
Broussard made as a private citizen.
In his second objection, Broussard argues that Woods’ conduct was objectively
unreasonable and thus, he is not entitled to qualified immunity.

Broussard provides two

examples of his speech that allegedly prompted Woods to retaliate against him: (1) comments
made at a Southeast Texas Tea Party meeting specifically naming Woods and (2) Broussard’s
statement that he refused to authorize what he believed to be fraudulent overtime sheets. Doc.
No. 45, at 6. As to the overtime sheets, taking Broussard’s allegations of Woods’ threats to be
true, Broussard’s comments were related to his job duties and are not entitled to First Amendment
protection. See Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015). Regarding the comments
made at the Tea Party meeting, Broussard asserts that he “specifically named” Woods in his
allegations of corruption and wasteful spending at the JCSO. Doc. No. 45, at 6. However,
other than conclusory statements, Broussard still fails to adequately allege facts in his Amended
Complaint or in his objections that Woods was aware of Broussard’s comments and they
motivated Woods’ actions, a necessary prerequisite to a First Amendment retaliation claim. See
Wetherbe, 593 F. App’x at 328 (“Wetherbe has not alleged that Smith was aware of this speech
or that it motivated his actions. Because these are requirements of Wetherbe’s claim for First
Amendment retaliation, this deficiency means that Wetherbe’s claim fails to defeat [qualified
immunity].”).
Accordingly, Broussard’s objections are overruled and Judge Hawthorn’s report and
recommendation is ADOPTED. Broussard’s claims are dismissed with prejudice. All pending

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motions in this matter are denied, and the Clerk of Court is directed to close this case. A final
judgment will .be entered separately.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 22nd day of March, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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