Mote v. Walthall
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendant's 12(b)(6) Motion to Dismiss 27 is hereby GRANTED IN PART and DENIED IN PART. The Court hereby dismisses Plaintiff's state law claims against Defendant in her official capacity. As to all other claims, Plaintiff has stated plausible claims to survive a Rule 12 motion. Signed by Judge Amos L. Mazzant, III on 2/8/2017. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
Civil Action No. 4:16-CV-00203
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Debra Walthall, In Her Official Capacity, 12(b)(6)
Motion to Dismiss (Dkt. #27). After reviewing the pleadings, the Court finds that the motion
should be granted in part and denied in part.
Plaintiff Marcus Mote worked as a police officer for the City of Corinth, Texas from
December 14, 2009 to October 20, 2015. Plaintiff was a member of the Texas Municipal Police
Association, a labor association of law enforcement personnel. On February 11, 2015, Plaintiff
led a meeting to organize a local chapter of the Texas Municipal Police Association to be known
as the Corinth Police Officers’ Association.
Defendant Debra Walthall is the Chief of Police for the City of Corinth, Texas. On
February 13, 2015, Defendant emailed Assistant Chief Greg Wilkerson, Lieutenant Carrie West,
and Internal Affairs Lieutenant Jimmie Gregg an article discussing a Texas Municipal Police
Association management survey that was critical of the Edinburg, Texas police department
administration. Defendant’s email stated “check the article on Edinburg PD. This is exactly what
TMPA will lead our guys to. This is the same survey that they did years ago on Allen PD.” (Dkt.
#1 at p. 2). Plaintiff alleges that Defendant worked for the Allen Police Department when a similar
Texas Municipal Police Association management survey critical of police administration was
provided to the Allen City Council. Plaintiff alleges that Defendant took action to intimidate
Plaintiff and other police officers in order to prevent the formation of the Corinth Police Officers’
On March 4, 2015, Plaintiff received a “performance file issue regarding the cleanliness of
his assigned patrol unit.” (Dkt. #1 at p. 3). On June 9, 2015, the Internal Affairs unit commenced
an investigation of Plaintiff. Plaintiff, who was assigned as a School Resource Officer at Lake
Dallas High School, informed school administrators that a non-student who applied to attend the
prom had a criminal record (Dkt. #1 at p. 3). The Internal Affairs investigation resulted in a written
reprimand and Plaintiff was transferred to deep-night shift patrol. On July 30, 2015, Internal
Affairs commenced a second investigation regarding an interaction Plaintiff had with two juveniles
who had been drinking and trespassed on private property. Defendant terminated Plaintiff on
October 20, 2015. Plaintiff alleges that other officers received written reprimands and suspensions
for similar policy infractions and were not terminated. Plaintiff further alleges that Corporal Jason
Foutch, another proponent of the Corinth Police Officers’ Association, was transferred from the
criminal investigations division to a deep-night shift patrol.
Plaintiff brings claims against Defendant in her official and individual capacity for
violations of (1) the First Amendment; (2) the Fourteenth Amendment; (3) 42 U.S.C. § 1983;
(4) Texas Government Code § 614.021, et seq.; and (5) Texas Labor Code § 101.301.
On February 22, 2016, Plaintiff filed his Original Complaint (Dkt. #1).
March 22, 2016, Defendant filed an answer to the Original Complaint (Dkt. #10). On August 16,
2016, Defendant filed the pending motion to dismiss (Dkt. #27). On August 26, 2016, Defendant
filed an amended answer to the Original Complaint (Dkt. #31). On September 19, 2016, Plaintiff
filed a response to the motion to dismiss (Dkt. #38). Defendant filed a reply on October 3, 2016
The Federal Rules 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). Each
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).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
facts in plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine
whether the complaint states a claim for relief that is plausible on its face. ‘“A claim has facial
plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the wellpleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
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, 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) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing [C]ourt to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
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.”’ Id. at 678 (quoting
Twombly, 550 U.S. at 570).
A motion asserting any defenses under Rule 12(b) “must be made before pleading if a
responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Defendant filed her motion to dismiss
after filing an answer to the complaint. Because a Rule 12(b) motion must be filed before
responsive pleadings, Defendant’s motion was untimely. See Jones v. Greninger, 188 F.3d 322,
324 (5th Cir. 1999); Bond St. Ltd, LLC v. Liess, No. 4:12-CV-755, 2014 WL 1287620, at *3 (E.D.
Tex. Mar. 31, 2014).
However, Rule 12(h)(2), which deals with waiver, provides that “[f]ailure to state a claim
upon which relief can be granted ... may be raised: (B) by a motion under Rule 12(c); or (C) at
trial.” Fed. R. Civ. P. 12(b). See Liess, 2014 WL 1287620, at *3. Rule 12(c) motions may be
filed after the pleadings are closed. See Greninger, 188 F.3d at 324. “Such motions will be treated
as a motion for judgment on the pleadings based on a failure to state a claim on which relief may
be granted.” Id.
Thus, although the motion to dismiss was filed untimely, the Court will construe it as a
motion for judgment on the pleadings under Rule 12(c). “Regardless of how the motion is
characterized, this distinction does not affect the court's legal analysis because the standards for
motions under Rule 12(b)(6) and 12(c) are identical.” Liess, 2014 WL 1287620, at *3 (citing
Jones, 188 F.3d at 324; Phillips v. Houston I.S.D., No. H–13–02935, 2013 WL 6079280, at *1 n.2
(S.D.Tex. Nov. 19, 2013)).
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” “The central
issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for
relief.” Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citing St. Paul Mercury
Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)). “Pleadings should be construed
liberally, and judgment on the pleadings is appropriate only if there are no disputed issues of fact
and only questions of law remain.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312 (5th Cir. 2002) (quoting Hughes, 278 F.3d at 420). The standard applied under
Rule 12(c) is the same as that applied under Rule 12(b)(6). Ackerson v. Bean Dredging, LLC, 589
F.3d 196, 209 (5th Cir. 2009); Guidry v. American Public Life Ins. Co., 512 F.3d 177, 180
(5th Cir. 2007).
First Amendment, Fourteenth Amendment, and Section 1983 Claims
After reviewing the pleadings, the Court finds that Plaintiff has stated plausible claims
under the First Amendment, Fourteenth Amendment Equal Protection Clause, and Section 1983
for purposes of defeating a Rule 12 motion to dismiss. Defendant’s motion to dismiss these claims
is therefore denied.
Plaintiff voluntarily dismissed his Fourteenth Amendment procedural due process claim in
light of the Fifth Circuit decision, Stem v. Gomez, 813 F.3d 205, 213 (5th Cir. 2016) (Dkt. #38 at
p. 11–12). The Court therefore grants Defendant’s motion to dismiss this claim.
State Law Claims
After reviewing the pleadings, the Court finds that Plaintiff has stated plausible state law
claims against Defendant in her individual capacity for purposes of defeating a Rule 12 motion to
Plaintiff also brings claims against Defendant in her official capacity under Texas Labor
Code § 101.301 and Texas Government Code § 614.021. Claims against Defendant in her official
capacity are treated as claims against the City of Corinth. Bellard v. Gautreaux, 675 F.3d 454,
462 (5th Cir. 2012). 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. See 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. Defendant’s motion to
dismiss Plaintiff’s state law claims against her in her official capacity is therefore granted.
Declaratory Judgment Claim
Plaintiff seeks a declaratory judgment finding that Defendant violated Plaintiff’s rights
under the First Amended, Fourteenth Amendment, Section 1983, and Texas state law. Defendant
argues that Plaintiff’s declaratory judgment claim is duplicative of other relief requested by
Plaintiff’s claims and should be dismissed. It is a matter for the district court’s sound discretion
whether to decide a declaratory judgment action. Pac. Employers Ins. Co. v. M/V Capt. W.D.
Cargill, 751 F.2d 801, 804 (5th Cir. 1985). The Court will not decline to exercise its declaratory
judgment jurisdiction at the motion to dismiss stage. Defendant’s motion to dismiss Plaintiff’s
claim for a declaratory judgment is therefore denied.
A claim for injunctive relief is a remedy that does not stand alone, but requires a viable
underlying legal claim. See Horne v. Time Warner Operations, Inc., 119 F.Supp.2d 624, 630
(S.D.Miss.1999), aff'd by 228 F.3d 408 (5th Cir.2000). The Court has determined that Plaintiff
has stated plausible claims for purposes of defeating a Rule 12 motion to dismiss. Defendant’s
motion to dismiss Plaintiff’s claim for injunctive relief is therefore denied.
It is therefore ORDERED that Defendant’s 12(b)(6) Motion to Dismiss is hereby
GRANTED IN PART and DENIED IN PART.
The Court hereby dismisses Plaintiff’s state law claims against Defendant in her official
capacity. As to all other claims, Plaintiff has stated plausible claims to survive a Rule 12 motion.
SIGNED this 8th day of February, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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