Dorris v. City of McKinney, Texas et al
Filing
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MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that the Citys Motion to Dismiss Plaintiffs First Amended Complaint (Dkt. 20 ) is hereby DENIED in part and GRANTED in part. It is further ORDERED that the Individual Defendants Motions to Dismiss Plaintiffs First Amended Complaint, or in the alternative, Motions for Rule 7(a) Reply (Dkts. 21 , 22 ) are DENIED in part and GRANTED in part. Signed by Judge Amos L. Mazzant, III on 10/4/2016. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
STEPHEN DORRIS
v.
CITY OF MCKINNEY, TEXAS, DANIEL
KISTNER, NAMED IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES, AND JOSE
MADRIGAL, NAMED IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITIES
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Civil Action No. 4:16-CV-00069
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant the City of McKinney, Texas’ (the “City”),
Defendant Fire Chief Daniel Kistner’s (“Defendant Kistner”), and Defendant Deputy City
Manager Jose Madrigal’s (“Defendant Madrigal”) motions to dismiss (Dkts. #20, #21, #22).
Having considered the relevant pleadings, the Court finds that the City’s motion should be
denied in part and granted in part. The Court further denies in part and grants in part Defendant
Kistner and Defendant Madrigal’s (the “Individual Defendants”) motions to dismiss, or in the
alternative, motions for a Rule 7(a) Reply.
BACKGROUND
The above referenced case is an action against the City, Defendant Kistner, and
Defendant Madrigal (collectively, “Defendants”) regarding the termination of Plaintiff Stephen
Dorris’ (“Plaintiff”) employment with the City.
Plaintiff worked for the City’s Fire Department (the “Fire Department”) from March
2003 to July 16, 2015 (Dkt. #13 at p. 3). During his employment with the Fire Department,
Plaintiff served as the elected president of the International Association of Fire Fighters, Local
2661 (“Local 2661”) (Dkt. #13 at p. 3). In 2015, Local 2661’s political action committee
(“PAC”) endorsed three candidates for the May 2015 City Council election (Dkt. #13 at p. 3). In
April 2015, Plaintiff arranged a photo shoot with the PAC’s endorsed candidates and off-duty
members of Local 2661 at one of the City’s fire stations (Dkt. #13 at p. 3). Plaintiff was not
present at the photo shoot (Dkt. #13 at p. 3). During the photo shoot, photographs were taken of
the endorsed candidates and off-duty members of Local 2661 standing in front of a City fire
truck (Dkt. #13 at p. 3-4). No City insignia were visible in the photographs (Dkt. #13 at p. 4).
The PAC and one of the endorsed candidates used the photographs from the shoot in political
advertisements (Dkt. #13 at p. 4).
That same month, the City Attorney’s office informed
Plaintiff that Local 2661 could not use photographs of on-duty fire personnel for political
campaigns, even if all references to the City were removed (Dkt. #13 at p. 4).
After the photographs were posted on the PAC’s Facebook page, Defendant Kistner
asked the City Police Department to open an administrative inquiry to determine whether the
post violated any City policy or rule (Dkt. #13 at p. 4). After an initial inquiry, Defendant
Kistner commenced a full Internal Affairs investigation into Plaintiff (Dkt. #13 at p. 4). On July
16, 2015, at the conclusion of the Internal Affairs investigation, Defendant Kistner signed a
Notice of Disciplinary Action (the “Notice”) terminating Plaintiff for violating the City’s policy
on insubordination (Dkt. #13 at p. 5). The Notice stated that Plaintiff failed to follow an order
given by the City Manager’s office not to use City equipment for the purpose of endorsing
candidates and failed to use his chain of command for his request to use City-owned property
(Dkt. #13 at p. 5). Defendant Madrigal approved Plaintiff’s termination (Dkt. #13 at p. 5).
Plaintiff appealed his termination and on October 23, 2015, three management-level City
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officials held an administrative hearing regarding Plaintiff’s appeal (Dkt. #13 at p. 5). On
October 27, 2015, Defendant City upheld Plaintiff’s termination (Dkt. #13 at p. 5).
On April 6, 2016, Plaintiff filed his First Amended Complaint asserting the following
claims: (1) deprivation of his First and Fourteenth Amendment right of freedom of association
under 42 U.S.C. § 1983; (2) deprivation of his First and Fourteenth Amendment right of freedom
of speech under 42 U.S.C. § 1983; and, (3) deprivation of his freedom of association under Texas
Labor Code §§ 101.001, 101.052 and Texas Government Code § 617.004 (Dkt. #13 at pp. 6-11).
On April 20, 2016, Defendant City filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction and Failure to State a Claim (Dkt. # 20). On April 20, 2016, Defendant Kistner and
Defendant Madrigal each filed a Motion to Dismiss for Failure to State a Claim, or in the
alternative, Motion For Rule 7(a) Reply (Dkts. #21, #22). On May 16, 2016, Plaintiff filed
oppositions to Defendants’ Motions to Dismiss (Dkts. #31, #32, #33). On May 25, 2016,
Defendants filed replies to Plaintiff’s oppositions to Defendants’ Motions to Dismiss (Dkts. #36,
#37, #38). On June 6, 2016, Plaintiff filed sur-replies to Defendants’ replies (Dkts. #41, #42,
#43).
LEGAL STANDARD
The City moves for dismissal of Count 3 under Rule 12(b)(1) of the Federal Rules of
Civil Procedure for lack of subject-matter jurisdiction (Dkt. # 20 at p. 1). The court has subjectmatter jurisdiction over those cases arising under federal law. U.S. Const. Art. III, § 2, cl. 1; 28
U.S.C. § 1331. A case arises under federal law if the complaint establishes that federal law
creates the cause of action or the plaintiff’s right to relief necessarily depends on the resolution
of a substantial question of federal law. Empire Healthchoice Assur. Inc. v. McVeigh, 547 U.S.
677, 689-90 (2006). The court has supplemental jurisdiction over claims for which it lacks
subject-matter jurisdiction, but that are substantially related—“form part of the same case or
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controversy”—to claims for which it does. 28 U.S.C. § 1367(a). A claim not arising under
federal law is substantially related to one that properly does so arise when the additional claim
“derive[s] from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S.
715, 727 (1966).
A Rule 12(b)(1) motion should be granted only if it appears beyond a doubt that the
plaintiff cannot prove a plausible set of facts in support of its claim. Lane v. Halliburton, 529
F.3d 548, 557 (5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 500 U.S. 544, 556-557 (2007)
(courts review Rule 12(b)(1) motions just as they would a 12(b)(6) motion)). However, the court
may find a plausible set of facts by considering: “(1) the complaint alone; (2) the complaint
supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court’s resolution of disputed facts.” Lane, 529 F.3d at 557 (quoting
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). The court will accept
all well-pleaded allegations in the complaint as true, and construe those allegations in a light
most favorable to the plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The
party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss. Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). “A case is properly dismissed
for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power
to adjudicate the case.” CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2008)
(quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998)).
Defendants also move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. A Rule 12(b)(6) motion to dismiss argues that, irrespective of jurisdiction, the
complaint fails to assert facts that give rise to legal liability of the defendant. The Federal Rules
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of Civil Procedure require that each claim in a complaint include “a short and plain statement . . .
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The claim must include
enough factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to
state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The court must accept
as true all well-pleaded facts contained in the plaintiff’s complaint and view them in the light
most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a
Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009). “The Supreme Court recently expounded upon the Twombly standard, explaining that
‘[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’” Gonzalez, 577 F.3d at 603 (quoting
Iqbal, 556 U.S. at 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “It follows that ‘where the well-pleaded facts do not permit the court
to infer more than a mere possibility of misconduct, the complaint has alleged – but it has not
‘shown’ – ‘that the pleader is entitled to relief.’” Id.
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First the court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal,
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556 U.S. at 664. Second, the court “consider[s] the factual allegations in [the complaint] to
determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary claims or elements.” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
In determining whether to grant a motion to dismiss, a district court may generally not
“go outside the complaint.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
However, a district court may consider documents attached to a motion to dismiss if they are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim. Id.
ANALYSIS
A. Claims against the City
Plaintiff alleges that by terminating his employment, the City violated his right to free
speech and association under the U.S. Constitution and under Texas law. The Court (1) denies
the City’s motion to dismiss Plaintiff’s Section 1983 claims and (2) grants the City’s motion to
dismiss Plaintiff’s state law claims.
1) Section 1983 Claims
The City contends that Plaintiff failed to state a claim for relief against the City for
constitutional violations under Section 1983 (Dkt #36 at pp. 1-2). After reviewing the current
amended complaint, the motion to dismiss, the response, the reply, and the sur-reply, the Court
finds that Plaintiff has stated plausible Section 1983 claims for purposes of defeating a Rule
12(b)(6) motion to dismiss.
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2) State Law Claims
Plaintiff further alleges that his termination violated Texas Labor Code Section 101.001
and 101.052 and Texas Government Code Section 617.004. Under this theory, Plaintiff seeks
reinstatement and injunctive relief. Defendant City contends that the Court lacks jurisdiction
over Plaintiff’s state law claims because the City’s governmental immunity bars these claims
(Dkt. #36 at p. 6). The Court agrees.
Under Texas law, the state is immune from both suit and judgment liability, unless the
state expressly consents to them. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696
(Tex. 2003). Governmental immunity extends sovereign immunity protections to the political
subdivisions of the state, including its municipalities. Harris Cty. Hosp. Dist. V. Tomball Reg’l
Hosp., 283 S.W.3d 838, 848 (Tex. 2009). Government entities are immune from claims for
injunctive relief based on allegations that government officials have violated the law or exceeded
their authority. City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009); see also Agee
v. City of McKinney, No. 4:12-CV-550, 2014 WL 1232644, at *16 (E.D. Tex. Mar. 22, 2014),
aff'd sub nom. Agee v. City of McKinney, Tex., 593 F. App'x 311 (5th Cir. 2014) (holding that a
city’s governmental immunity precludes claims for reinstatement and injunctive relief until such
time as plaintiff establishes a waiver of immunity). The Court agrees that Plaintiff has not
asserted facts establishing any waiver of immunity (Dkt. #20 at 12-13). The City’s 12(b)(1)
motion to dismiss Plaintiff’s state law claims is therefore granted.
B. Claims Against the Individual Defendants
Plaintiff alleges that the Individual Defendants violated his right to freedom of speech
and freedom of association under the First and Fourteenth Amendment and the Texas Labor
Code by terminating him because of his involvement in Local 2661.
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After reviewing the
relevant pleadings, the Court finds (1) as to Plaintiff’s claims against the Individual Defendants
in their individual capacities, Plaintiff must submit a Rule 7(a) Reply addressing each Individual
Defendants’ qualified immunity defense and (2) as to Plaintiff’s claims against the Individual
Defendants in their official capacities, the Court dismisses all federal claims asserted against the
Individual Defendants as redundant and duplicative of Plaintiff’s claims against Defendant City.
Further, Plaintiff properly pleaded his state law equitable claims against the Individual
Defendants in their official capacities and has standing to bring these claims.
1) Individual Capacity Claims
The Individual Defendants contend that Plaintiff has failed to state plausible First and
Fourteenth Amendment claims against them in their individual capacities and has failed to
overcome the defense of qualified immunity. After reviewing the relevant pleadings, the Court
grants the Individual Defendants’ requests that Plaintiff submit a Rule 7(a) Reply as to their
qualified immunity claims.
“In order for a public employee to recover for a free speech retaliation claim, the
plaintiff must satisfy four elements: (1) the plaintiff must suffer an adverse employment
decision; (2) the plaintiff’s speech must involve a matter of public concern; (3) the plaintiff’s
interest in commenting on matters of public concern must outweigh the defendant’s interest in
promoting efficiency; and (4) the plaintiff’s speech must have motivated the defendant’s
actions.”
Cox v. Kaelin, 577 F. App’x 306, 310 (5th Cir. 2014).
A First-Amendment,
“association” claim “has similar elements but requires ‘engagement in a constitutionally
protected activity’ (rather than speech) and omits the second element (i.e., that the protected act
involve a matter of public concern)”. Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014)
(citations omitted).
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“A plaintiff seeking to defeat qualified immunity must show that (1) the official violated
a statutory or constitutional right and (2) the right was clearly established at the time of the
challenged conduct.” Id. at 626-27. “The law is clearly established that a public employee may
be neither discharged nor demoted in retaliation for exercising his First Amendment Rights.”
Cox, 577 F. App’x at 313. Further, a reasonable employer should have knowledge that he may
not escape liability for retaliating against an employee for exercising his First Amendment rights.
Id.
Plaintiff has pleaded a First Amendment retaliation claim with sufficient facts to render it
plausible on its face. First, an alleged discharge is “clearly an adverse employment decision.”
Cox, 577 F. App’x at 311. Plaintiff thus has met the first element of a First Amendment
retaliation claim.
Second, a court must determine “whether it is plausible from the pleadings that [Plaintiff]
spoke as a citizen on a matter of public concern.” Id. (citations omitted). “The first step of this
inquiry questions whether [Plaintiff] engaged in First Amendment speech as a citizen or in his
role as a public employee.” Id. Here, Plaintiff pleaded that all Local 2661 members in the
photographs were off duty at the time the photographs were taken and were not wearing anything
that identified them as City employees (Dkt. #13 at p. 3). Although the photographs included a
City fire truck, Plaintiff has pleaded that he did not attend the photo shoot and was not personally
involved in the movement of the fire truck during the photo shoot (Dkt. #13 at p. 5). It is thus
plausible from the pleadings that Plaintiff spoke as a citizen rather than as a public employee. A
court must next determine whether the speech involved a matter of public concern. Cox, 577 F.
App’x at 311. “It is well established that the First Amendment right to free association includes
the right to join unions.” Agee v. City of McKinney, No. 4:12-CV-550, 2014 WL 1232644, at
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*12 (E.D. Tex. Mar. 22, 2014) (citations omitted). Further, “there can be no question that
associating with political organizations and campaigning for a political candidate relate[s] to a
matter of public concern.” Cox, 577 F. App’x at 311. Therefore, it is plausible that Plaintiff
spoke as a citizen on a matter of public concern.
Third, a court must consider whether the plaintiff's interest in commenting on matters of
public concern outweighs the defendant's interest in promoting efficiency. Id. at 312. At the
motion to dismiss stage of a case, “there is a rebuttable presumption that no balancing is required
to state a claim.” Burnside, 773 F.3d at 628. However, an employer “may quickly overcome the
presumption by invoking the procedure for resolving qualified-immunity disputes at the motion
to dismiss stage.” Id. (citing Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995)). The Court thus
directs Plaintiff to file a Rule 7(a) Reply addressing whether Plaintiff's interest in commenting on
matters of public concern outweighs Defendants’ interest in promoting efficiency. The Court
will then determine whether Plaintiff has pleaded sufficient facts to make it plausible that (1) the
official violated a statutory or constitutional right and (2) the right was clearly established at the
time of the challenged conduct.
2) Official Capacity Claims
The Individual Defendants seek to dismiss Plaintiff’s claims against them in their official
capacities, arguing that these claims are redundant of the claims against the City (Dkt. #37 at p.
3; Dkt. #38 at p. 3). The federal claims against the Individual Defendants are dismissed as
duplicative of the claims brought against the City. See Castro Romero v. Becken, 256 F.3d 349,
355 (5th Cir. 2001).
However, the Court agrees that Plaintiff’s state law equitable claims require the
Individual Defendants to be named in their official capacities. See Agee, 2014 WL 1232644, at
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*14 (citing Heinrich, 284 S.W.3d at 369-72). The Individual Defendants further argue that
Plaintiff lacks standing to seek injunctive relief under Texas law because he is no longer
employed by the City (Dkt. #21 at p. 14; Dkt. #22 at p. 14). This argument is without merit.
Plaintiff alleges that he was wrongfully discharged and such discharge infringed on his rights to
freedom of association under Texas law (Dkt. #13).
Plaintiff seeks reinstatement and an
injunction preventing the Individual Defendants from violating the Texas law in the future.
Plaintiff thus has standing to seek injunctive relief. See Simonelli v. Fitzgerald, No. CIV.A. SA07-CA-360, 2009 WL 3806489, at *2 (W.D. Tex. Oct. 22, 2009) (holding that plaintiffs had
standing to sue where they alleged defendants wrongfully discharged a union president,
infringing on the union members’ First and Fourteenth Amendment rights). The Court therefore
denies the Individual Defendants’ motion to dismiss Plaintiff’s state law claims.
CONCLUSION
It is therefore ORDERED that the City’s Motion to Dismiss Plaintiff’s First Amended
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Complaint (Dkt. #20) is hereby DENIED in part and GRANTED in part.
It is further ORDERED that the Individual Defendants’ Motions to Dismiss Plaintiff’s
First Amended Complaint, or in the alternative, Motions for Rule 7(a) Reply (Dkts. #21, #22) are
DENIED in part and GRANTED in part.
SIGNED this 4th day of October, 2016.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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