Harmon v. Dallas County, Texas et al
Filing
69
Memorandum Opinion and Order grants 57 Motion for Summary Judgment filed by Derick Evans and dismisses with prejudice Plaintiff's Petition Claim under 42 U.S.C. § 1983 against Evans in his individual capacity. As no further claims remain, the court will enter judgment in favor of Defendants Dallas County and Evans by separate document pursuant to Rule 58 of the Federal Rules of Civil Procedure. (Ordered by Judge Sam A Lindsay on 2/20/2018) (ndt)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NORVIS HARMON,
Plaintiff,
v.
DALLAS COUNTY, TEXAS and
DERICK EVANS,
Defendants.
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§ Civil Action No. 3:13-CV-2083-L
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MEMORANDUM OPINION AND ORDER
Before the court is Defendant Derick Evans’s Motion for Summary Judgment (Doc. 57), filed
April 26, 2017. After considering the motion, briefs, pleadings, and evidence, the court grants
Defendant Derick Evans’s Motion for Summary Judgment (Doc. 57) and dismisses with prejudice
Plaintiff’s claim against Derick Evans (“Evans”) in his individual capacity based on Plaintiff Norvis
Harmon’s (“Plaintiff” or “Harmon”) alleged right to petition or appeal the termination of his
employment, whether premised on retaliation in violation of the First Amendment’s Petition Clause,
denial of equal protection, or violations of state and local law (“Petition Claim”).
Because the court’s ruling rests in part on its determination as to which claims by Plaintiff
are before the court and remain after the court’s March 31, 2017 memorandum opinion and order,
the court addresses in detail the allegations in Plaintiff’s pleadings regarding Plaintiff’s Petition
Claim and how this claim, which was originally pleaded as a constitutional claim involving the
denial of equal protection, morphed and expanded over the course of this litigation into a
constitutional claim for alleged violations of the First Amendment right to petition, and, most
Memorandum Opinion and Order - Page 1
recently, into a claim encompassing alleged violations of Plaintiff’s statutory grievance rights under
Texas Government Code § 617.005 and Dallas County Code Chapter 86. For the reasons herein
explained, the court determines that Plaintiff’s Petition Claim, brought pursuant to 42 U.S.C. § 1983,
is either not properly before the court because it was not included in Plaintiff’s pleadings, was
abandoned by Plaintiff, or fails as a matter of law, regardless of whether it is characterized as a claim
based on the denial of equal protection, retaliation in violation of the First Amendment’s Petition
Clause, or violations of statutory grievance rights under Texas Government Code § 617.005 and
Dallas County Code Chapter 86.
I.
Factual and Procedural Background
Harmon brought this action against Defendants Dallas County, Texas (“Dallas County” or
“the County”) and former Dallas County Constable Evans (collectively, “Defendants”) on June 3,
2013. Harmon was previously employed by Dallas County in Constable Office, Precinct 1, as a
deputy constable. His employment was terminated on June 3, 2011. The termination of his
employment is the subject of this lawsuit, as well as a prior state court action filed by Harmon and
two other deputy constables against Dallas County on September 9, 2011, in the 44th Judicial
District Court, Dallas County, Texas.
In the state court action, Harmon and the other plaintiffs asserted claims for alleged violations
of the Texas Whistleblower Act (“TWA”) and Texas Local Government Code § 617.004, and an
equal protection claim for alleged violations of the Texas Constitution. On March 28, 2012, the
Whistleblower claim, equal protection claim, and claim for alleged violations of Texas Government
Code 617.005 brought by Harmon in the state court action were dismissed with prejudice. In this
federal action, Harmon originally asserted two claims against Defendants, pursuant to 42 U.S.C. §
Memorandum Opinion and Order - Page 2
1983, for alleged constitutional violations based on the denial of equal protection to petition the
government and retaliation in violation of his First Amendment right to free speech. In his
Complaint, Harmon refers to these claims as his “Denial of Equal Protection” claim and “Free
Speech Claim.” Pl.’s Compl. 4, 5.
A.
First Amendment “Free Speech Claim” Included in Plaintiff’s Complaint
In his Complaint, Plaintiff refers to his claim against Defendants under the First Amendment
for alleged retaliation as his “Free Speech Claim.” Id. at 5. Regarding his Free Speech Claim,
Harmon alleges in his Complaint that Defendants retaliated against him in terminating his
employment in violation of his First Amendment right to speak out on matters of public concern.
Specifically, Harmon contends that he was fired because he reported that Evans and the supervisors
under Evans engaged in illegal conduct in requiring deputy constables, including him, to: (1) donate
time and money to Evans’s re-election campaign; (2) work unpaid for political allies and friends of
Evans; and (3) tow citizens’ vehicles after traffic stops. In addition, Plaintiff asserts that he reported
Evans’s illegal conduct in setting traffic citation quotas in violation of Texas Transportation Code
§ 720.002.
B.
Denial of Equal Protection Claim Based on Right to Petition Included in
Plaintiff’s Complaint
In his Complaint, Plaintiff refers to his claim against Defendants for alleged violations of his
“right to petition the government for redress of grievances” as his “Denial of Equal Protection”
claim. Id. at 4. Regarding this claim, Harmon alleges in his Complaint that he sought to appeal the
termination of his employment “through the Dallas County grievance system and by appealing to
Defendant Evans[,]his department head, but his requests to appeal were refused by Defendants.” Id.
Memorandum Opinion and Order - Page 3
¶ 23. Harmon alleges that Defendants refused to hear the appeal of his termination through the
Dallas County grievance system because he was not employed as a Deputy Constable before August
19, 2003. Defendants do not dispute that Dallas County’s formal grievance system applies only to
deputy constables hired before August 19, 2003, and Harmon’s appeal through Dallas County’s
formal grievance system was rejected because he was hired after August 19, 2003. Harmon contends
that the right to petition the government is a fundamental right, and “the actions of Defendants [in]
depriv[ing] [him] of the right to petition the government for redress of grievances, when such right
is granted to other similarly situated employees [deputy constables hired before August 19, 2003],
is a denial of [his] right to equal protection of law guaranteed by the U.S. Constitution.” Id. ¶ 26.
C.
Plaintiff’s Rule 7(a) Reply
On August 7, 2013, Dallas County filed its Answer to Plaintiff’s Complaint, asserting, among
other things, that Plaintiff’s claims against it were barred by res judicata as a result of the state court
action. On March 15, 2014, Evans filed his Answer, similarly alleging that Plaintiff’s claims against
him were barred by res judicata, even though he was not a party to the state court action. Evans’s
Answer also included the defense of qualified immunity. Evans alleges that Plaintiff’s claims
against him are barred by qualified immunity because he did not engage in any conduct that could
be “characterized as objectively unreasonable and which all officials in his circumstances would
condemn as violative of Constitutional rights.” Evans’s Answer ¶ 5. On February 26, 2015, former
United States Chief Judge Jorge A. Solis (“Judge Solis”) ordered Plaintiff to file a reply under
Federal Rule of Civil Procedure 7(a) (“Rule 7(a) Reply”) regarding “Defendants’ qualified immunity
defense[]” by March 18, 2015, and set a deadline for dispositive motions on qualified immunity for
Memorandum Opinion and Order - Page 4
April 17, 2015. Order 1 (Doc. 24). On March 18, 2015, Plaintiff filed his Rule 7(a) Reply (Doc.
25) as directed. In his Rule 7(a) Reply, Plaintiff alleges in pertinent part as follows:
1.
. . . Defendant Evans was a Texas peace officer and an elected Constable for
Dallas County, Texas when he terminated Harmon for speaking out on matters of
public concern. In 2013, the law was clearly established that public employees could
not be terminated from their employment for speaking out on matters of public
concern. As such, Defendant Evans is not entitled to prevail on his defense of
qualified immunity.
30.
Harmon alleges Defendant Evans had knowledge that Harmon reported
Evans’ illegal conduct to investigators hired by the Dallas County Commissioners
Court, for speaking to the special prosecutor and for speaking to other law
enforcement personnel.
31.
Norvis Harmon alleges his termination was a wrongful termination because
Defendant Evans terminated Harmon in retaliation for Harmon’s speaking to
investigators hired by the Dallas County Commissioners Court, for speaking to the
special prosecutor and for speaking to other law enforcement personnel about Evans’
illegal conduct.
32.
Harmon alleges Defendant Evans’ illegal conduct, including his illegal lottery
to support his re-election campaign that resulted in Evans’ felony conviction, were
matters of public concern.
33.
In 2011, every reasonable elected Constable in the State of Texas would have
understood that Defendant Evans’ conduct was objectively unreasonable as the law
was clearly established that public employees cannot be terminated for speaking out
on matters of public concern; because the law was clearly established that corruption
and illegal conduct by elected officials is a matter of public concern; and because
such a termination would and did violate Norvis Harmon’s Constitutional rights.
34.
Defendant Evans claims that Norvis Harmon was terminated due to
discrepancies related to a G.P.S. system in the vehicles Harmon used to perform
duties serving civil process as a deputy constable, but this purported reason is merely
a pretext for Evans’ illegal termination of Harmon.
35.
Other similarly situated employees were permitted to explain the
circumstances of the G.P.S. discrepancies and they were not terminated.
36.
Still other similarly situated employees [deputy constables hired before
August 19, 2003] who were permitted to explain the circumstances of the G.P.S.
Memorandum Opinion and Order - Page 5
discrepancies in the context of a grievance process allowed by the Dallas County
Civil Service system were reinstated to employment after their termination.
37.
After Norvis Harmon was fired, he appealed and filed a grievance over his
wrongful termination.
38.
Defendant Evans illegally refused to hear Harmon’s grievance over his
termination, although Dallas County has claimed that all employees of Dallas County
have the right to appeal terminations to their department head.
39.
Defendant Evans was Norvis Harmon’s department head at the time of
Harmon’s wrongful termination.
40.
Defendant Evans had a policy and/or a regular practice to not hear grievances
of employees, including grievances by deputy constables.
41.
As an elected Constable, Defendant Evans was a final policy-maker regarding
the grievance policy and/or practice of his office.
42.
Defendant Dallas County also refused to allow Norvis Harmon to grieve his
termination because Harmon was first employed as a deputy constable for Dallas
County after August 19, 2003.
43.
Deputy constables hired before August 19, 2003, who were otherwise
similarly situated to Norvis Harmon, were allowed to grieve their terminations.
44.
The sole criteria established by Defendant Dallas County to classify whether
employees were allowed a grievance right was the employees date of hire.
45.
The right to petition the government for the redress of grievances is
established by the First Amendment to the U.S. Constitution and it is a fundamental
right.
46.
The classification by Defendant Dallas County of deputy constables into those
who were allowed grievance rights and those who were denied any grievance rights
is an illegal classification that amounts to a denial of equal protection.
47.
The classification by Defendant Dallas County was accomplished by action
of the Dallas County Commissioners Court, which is the final policymaker for Dallas
County regarding the granting of grievance rights under the Dallas County Civil
Service system.
Memorandum Opinion and Order - Page 6
48.
Similarly situated employees [deputy constables hired before August 19,
2003] who were allowed to present their grievance to the Dallas Civil Service
Commission were reinstated to their employment after their termination by
Defendant Evans.
49.
Norvis Harmon has been damaged as a result of his wrongful termination;
because of Defendant Evans’ refusal to hear any appeal of Harmon’s wrongful
termination; and as a result of his denial of grievance rights in the Dallas County
Civil Service system by Defendant Dallas County.
50.
Defendant Evans is not entitled to any immunity, neither in his official
capacity, nor in his personal capacity for his illegal conduct of wrongfully
terminating Norvis Harmon in retaliation for Harmon’s exercise of his First
Amendment right to speak out on a matter of public concern.
Pl.’s Rule 7(a) Reply ¶¶ 1, 30-50. Norman further alleges that “the law was clearly established that
public employees could not be terminated from their employment for speaking out on matters of
public concern; and it was also clearly established in 2013 that corruption and illegal acts by public
officials and elected officials was a matter of public concern.” Id. ¶ 3.
D.
Evans’s Motion for Judgment and Plaintiff’s Request to Amend his Pleadings
On April 17, 2015, Evans moved, based on his defense of qualified immunity, for judgment
on the pleadings under Federal Rule of Civil Procedure 12(c) (“Motion for Judgment”) on Plaintiff’s
First Amendment “Free Speech Claim” claim. In his response to Evans’s Motion for Judgment
(Doc. 27), Plaintiff sought leave to supplement his Complaint and Rule 7(a) Reply and attached as
an exhibit to his response his proposed Supplement to Original Complaint and Rule 7(a) Reply,
which supplements the allegations with respect to his Free Speech Claim. Evans’s reply in support
of his Motion for Judgment does not address Plaintiff’s request to supplement his pleadings. On
December 1, 2015, Judge Solis entered an order denying Evans’s Motion for Judgment. Judge
Solis’s order does not expressly rule on or address Plaintiff’s request for leave, but the order states
Memorandum Opinion and Order - Page 7
that the court’s ruling is based on the facts in Harmon’s Complaint and Rule 7(a) Reply. Order 1
n.1 (Doc. 29). The order contains several citations and references to the factual allegations in “Doc.
25,” which is Plaintiff’s Rule 7(a) Reply, as well as “Doc. 27.” As noted, “Doc. 27” is actually
Plaintiff’s response to the Motion for Judgment, not the proposed supplement that is attached to
Plaintiff’s response, but it is apparent from Judge Solis’s order that his citations to “Doc. 27” refer
to Plaintiff’s proposed supplement (Doc. 27-1). This is the only time Plaintiff requested to amend
his pleadings.
E.
Partial Motions for Summary Judgment
The case was assigned to the undersigned on April 27, 2016, three days before Judge Solis
retired. On July 17, 2016, although the deadline set by Judge Solis for filing dispositive motions had
expired, the court granted the parties’ request to file limited summary judgment motions because the
parties represented that their motion would significantly narrow and streamline the issues to be
tried, which was a gross overstatement as evidenced by the three lengthy opinions the court has had
to write. In retrospect, the court should have never granted the parties leave, as it only opened a legal
and procedural Pandora’s box. In their Limited Motion for Summary Judgment (Doc. 39),
Defendants contended that the two claims asserted by Plaintiff in this action based on denial of equal
protection and First Amendment free speech/ retaliation were barred by res judicata. Plaintiff
contended in his partial summary judgment (Doc. 42) that he was entitled to judgment on his equal
protection claim against Dallas County because his right to petition the government for redress of
grievances is a fundamental right, and Dallas County’s ordinance that limits grievance rights to
deputy constables hired after August 19, 2013, denied him his right to equal protection of the laws
under the United States Constitution and also violated his First Amendment right to petition the
Memorandum Opinion and Order - Page 8
government. In support of his equal protection claim, Plaintiff contended that his claim against the
County was based on the County’s and Evans’s conduct in terminating his employment and denying
or refusing to hear his petition appealing the termination of his employment. See Pl.’s Summ. J. Br.
¶¶ 2, 21, 25 (Doc. 43).
In response to Plaintiff’s summary judgment motion, Defendants asserted that Plaintiff’s
equal protection claim, whether based on the alleged right to petition the government or the allegedly
discriminatory treatment of deputy constables, applied only to the County, not Evans, because the
rule that precluded Harmon from appealing the termination of his employment was put in place by
the County without input from Evans, and the denial of civil service protection to Harmon occurred
because of the County rule and for no other reason. In addition to contending that Plaintiff’s two
claims were barred by res judicata, Defendants requested that the court treat their response to
Plaintiff’s summary judgment motion as a cross-motion for summary judgment in the County’s favor
on the equal protection claim, which the County contended could be decided as a matter of law. In
his reply brief, Harmon never challenged Defendants’ contention that he had only asserted two
claims, one for denial of equal protection against the County based on his alleged right to petition
or appeal the termination of his employment and one for retaliation in violation of his First
Amendment right to free speech against both Defendants; nor did Harmon challenge Defendants’
assertion that his equal protection claim was only against the County.
Memorandum Opinion and Order - Page 9
F.
Decision to Revisit the Denial of Evans’s Motion for Judgment and Submission
of Supplement Briefs
On January 16, 2017, before ruling on the parties’ motions for partial summary judgment,
the court gave the parties notice of its decision to sua sponte revisit Judge Solis’s ruling on Evans’s
Motion for Judgment as follows:
In reviewing the parties’ motions, the court also necessarily reviewed the record in
this case, including . . . Judge Jorge A. Solis’s . . . December 1, 2015 order denying
. . . Evans’s Motion for Judgment . . . , the parties’ briefs as to this motion, and
Plaintiff’s pleadings. In his order, it appears that Judge Solis addressed in a general
and conclusory manner the issue of whether the challenged conduct by . . . Evans .
. . —terminating . . . Harmon . . . in retaliation for his reporting conduct by Evans and
others that Harmon believed to be illegal—violated clearly established federal
statutory or constitutional rights.
In analyzing qualified immunity claims, the Supreme Court has “repeatedly
told courts . . . to not define clearly established law at a high level of generality.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted). According to
Mullenix, courts must consider “whether the violative nature of particular conduct is
clearly established” and must undertake this inquiry “in light of the specific context
of the case, not as a broad general proposition.” Id. (citations and internal quotations
marks omitted).
Because the order on Evans’s Motion for Judgment did not consider whether
the nature of the challenged conduct was clearly established in the specific context
of this case, the court sua sponte revisits this issue, and directs the parties to file by
February 2, 2017, supplemental briefs on the issue. The parties’ briefs must not
exceed seven (7) pages, exclusive of signature pages, and shall address whether, in
light of Mullenix, Garcetti v. Ceballos, 547 U.S. 410 (2006), and related Supreme
Court and Fifth Circuit authority, the challenged conduct by Evans and corresponding
alleged violation of Harmon’s right to First Amendment free speech was clearly
established at the time his employment was terminated. No further filings will be
allowed regarding this issue unless directed by the court. To avoid further delay, no
extensions of time will be granted.
Order 1-2 (Doc. 52). On February 2, 2017, the parties submitted briefing regarding the specific issue
raised by the court as to whether the nature of the challenged conduct, with respect to Plaintiff’s Free
Speech Claim under the First Amendment, was clearly established in the specific context of this
Memorandum Opinion and Order - Page 10
case. In addressing the issue raised by the court, Plaintiff advised in his supplemental brief that, in
addition to his two claims for denial of equal protection and retaliation in violation of the First
Amendment’s Speech Clause, he also has a claim against Evans for violation of the First
Amendment’s Petition Clause that has not yet been challenged by Evans. According to Plaintiff, his
First Amendment Petition Claim is based on his allegation that Evans refused to hear his grievance:
Harmon alleges Defendant Evans illegally refused to hear Harmon’s grievance over
his termination, although Dallas County has claimed that all employees of Dallas
County have the right to appeal terminations to their department head. While Harmon
claims Dallas County’s policy denying grievance rights to him and other deputy
constables is a denial of equal protection, Harmon separately challenges Evans’
refusal to hear his grievance as a violation of his FIRST AMENDMENT petition
right that was clearly established in 1984. Evans has not sought a judgment on the
FIRST AMENDMENT petition claim. Retaliation claims under the Speech Clause
and the Petition Clause are analyzed in the same way. Accordingly, Harmon also
shows Evans has no qualified immunity as to the petition claim.
Wherefore, Harmon shows Judge Solis correctly rejected the qualified
immunity defense.
Pl.’s Supp. Br. on Qualified Immunity 7 (Doc. 54) (internal quotation marks and footnotes omitted).
G.
March 31, 2017 Opinion on Motions for Partial Summary Judgment and
Evans’s Motion for Judgment
On March 31, 2017, the court concluded that Plaintiff’s claims against the County for denial
of equal protection and retaliation for the exercise of free speech under the First Amendment are
barred by res judicata and dismissed with prejudice these claims. The court further noted that any
claim against Evans under section 1983 in his official capacity arising out of the events at issue in
this case would in effect have been a claim against the County that was also barred by res judicata.
The court further determined that Evans was entitled to judgment as a matter of law, based on
qualified immunity, on Plaintiff’s First Amendment Free Speech Claim against in his individual
Memorandum Opinion and Order - Page 11
capacity, vacated the portion of Judge Solis’s order dealing with his application of the clearly
established law standard to this case, and dismissed with prejudice this claim.1
Based on its review of Plaintiff’s pleadings and the parties’ characterization of Plaintiff’s
claims, the court believed that resolution of the parties’ motions on Plaintiff’s two claims for denial
of equal protection and retaliation in violation of Plaintiff’s alleged First Amendment right to free
speech disposed of all claims asserted by Plaintiff in this case and expressed surprise as follows
regarding Plaintiff’s assertion that he had a third “First Amendment Petition Claim” against Evans:
That Plaintiff has a “First Amendment Petition Claim” is a surprise to the court, as
this is the first time that Plaintiff has mentioned anything about this claim. This is
likely the reason why Evans did not previously challenge the claim in his Motion for
Judgment based on qualified immunity. As noted, Evans expressed the belief in his
Motion for Judgment that Plaintiff’s section 1983 claim was based only on alleged
equal protection and First Amendment free speech violations. Dallas County and
Judge Solis were similarly operating under the assumption that these were Plaintiff’s
only claims. Judge Solis refers in passing in his December 1, 2015 order to Plaintiff’s
allegation “that Evans was fired and refused an appeal of his termination after a GPS
audit showed a discrepancy—even though other employees were not fired for this
same discrepancy or were at least given an appeal if they were fired,” but it is clear
that he was referring to this allegation in the context of Plaintiff’s First Amendment
free speech claim. Order 7 (Doc. 29).
Moreover, Judge Solis’s order requiring Plaintiff to file a Rule 7(a) Reply was
limited to “the issue of Defendants’ qualified immunity defenses,” Order (Doc. 24),
and did not grant Plaintiff leave to assert new causes of action or allegations
supporting new causes of action. While Judge Solis impliedly granted Plaintiff’s
request for leave in his response to Evans’s Motion for Judgment (Doc. 27), to
supplement his Complaint and Rule 7(a) Reply, Plaintiff said nothing in his motion
for leave or the proposed supplement to his Complaint and Rule 7(a) Reply about
asserting a new cause of action. Further, as noted in the factual background of this
opinion, Plaintiff’s allegation that he was deprived of a fundamental right to petition
1
In revisiting Judge Solis’s order denying Evans’s Motion for Judgment, the court concluded that Plaintiff’s
motion for leave to supplement his pleadings was impliedly granted by Judge Solis and, therefore, directed the clerk of
the court to file the proposed supplement attached as an exhibit to Plaintiff’s response to the Motion for Judgment (Doc.
27-1) and give the document a file date of December 1, 2015, the same date as Judge Solis’s order.
Memorandum Opinion and Order - Page 12
the government for redress of grievances was previously made in support of his equal
protection claim, not the new “First Amendment Petition Claim” alluded to in his
Supplemental Brief.
Mem. Op. & Order 16-17 (Doc. 55) (quoting J. Solis’s Orders (Docs. 24, 29)). The court went on
to note that qualified immunity is “immunity from suit rather than a mere defense to liability,” and
qualified immunity questions should, therefore, be determined at the earliest possible stage of
litigation. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Given the length of time that
the case had been pending, the court expressed “dismay[] with Plaintiff’s recent assertion regarding
a ‘First Amendment Petition Claim.’” Mem. Op. & Order 17. Instead of dismissing this action, the
court allowed Evans to file a dispositive motion regarding Plaintiff’s new First Amendment Petition
Claim. It did so in light of Evans’s assertion of qualified immunity, and because it did not believe,
based on the record in this case, that Dallas County or Evans was aware that Plaintiff was asserting
a First Amendment Petition Claim against Evans.
H.
Evans’s Summary Judgment Motion (Qualified Immunity as to Plaintiff’s First
Amendment Petition Claim)
On April 26, 2017, Evans moved for summary judgment on Plaintiff’s First Amendment
Petition Claim. As noted below and discussed more fully herein, Plaintiff contends in response to
Evans’s summary judgment motion that, in addition to his First Amendment Petition Claim, he has
other “petition claims” claims remaining against Evans in his individual capacity. Briefing on this
summary judgment motion by Evans was complete on May 30, 2017.
I.
Plaintiff’s Motion to Recuse
On May 30, 2017, Plaintiff filed his Motion to Recuse, which was denied by the court on
August 8, 2017. In his Motion to Recuse, Plaintiff disagreed with the court’s characterization of his
Memorandum Opinion and Order - Page 13
First Amendment Petition Claim and contended that this claim was not new.2 Plaintiff makes a
similar argument in response to Evans’s summary judgment motion, contending that the facts alleged
in his Complaint and Rule 7(a) Reply regarding his equal protection claim also support a First
Amendment Petition Claim, and the same conduct constitutes a denial of equal protection and
violation of his First Amendment right to petition the government. In addition to responding to
Evans’s summary judgment arguments regarding his remaining First Amendment Petition Claim,
Plaintiff contends that Evans’s refusal to hear his grievance also constitutes a denial of equal
protection and “violated [his] statutory grievance rights under TEXAS GOVERNMENT CODE §
617.005 and DALLAS COUNTY CODE Ch. 86.” Pl.’s Summ. J. Resp. 17-18. In light of these
arguments by Plaintiff, the court noted in its opinion on Plaintiff’s Motion to Recuse that it appeared
Plaintiff might now be contending that he has additional individual capacity petition claims
remaining against Evans, aside from his First Amendment Petition Claim, that are not barred by
qualified immunity. The court indicated in its opinion on the Motion to Recuse that it would address
this issue and the parties’ arguments made with respect to Evans’s pending summary judgment on
Plaintiff’s First Amendment Petition Claim by separate order.
II.
Evans’s Summary Judgment Motion (Doc. 57)
A.
Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
2
Plaintiff’s Motion for Recusal was based in part on the court’s statements regarding Plaintiff’s assertion of
a First Amendment Petition Claim; the court’s decision to allow Evans to file a dispositive motion regarding this claim;
and the court’s decision to sua sponte revisit and vacate in part Judge Solis’s order denying Evans’s Motion for
Judgment, based on qualified immunity, to dismiss Plaintiff’s First Amendment free speech and retaliation claim.
Memorandum Opinion and Order - Page 14
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden
of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative
defense, he must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita, 475 U.S. at
587. (citation omitted). Mere conclusory allegations are not competent summary judgment
evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73
F.3d 1322, 1325 (5th Cir. 1996).
Memorandum Opinion and Order - Page 15
Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136
F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
B.
Qualified Immunity Standard
Evans contends that he is entitled to qualified immunity for Harmon’s First Amendment
Petition Claim against him in his individual capacity based on Harmon’s alleged right to petition the
government. Government officials who perform discretionary functions are entitled to the defense
of qualified immunity, which shields them from suit as well as liability for civil damages, if 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 (1982). A defendant official
must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640
(1980). Evans asserted this defense in his Answer.
Memorandum Opinion and Order - Page 16
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme
Court initially set forth a mandatory two-part inquiry for determining whether a government official
was entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under Saucier, a
court must determine first whether the facts alleged or shown are sufficient to make out a violation
of a constitutional or federal statutory right. If the record sets forth or establishes no violation, no
further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or establishes that
a violation could be made out, the court must determine whether the right at issue was clearly
established at the time of the government official’s alleged misconduct. Id. The Court relaxed this
mandatory sequence in Pearson v. Callahan, 555 U.S. 223 (2009), and stated, “[W]hile the sequence
set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory,” and judges
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” Id. at 236. The second prong of the test “is better understood as two separate
inquiries: whether the allegedly violated constitutional right[] [was] clearly established at the time
of the incident; and if so, whether the conduct of the defendant[] [official] was objectively
unreasonable in light of that then clearly established law.” Hanks v. Rogers, 853 F.3d 738, 744 (5th
Cir. 2017) (quoting Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation
marks and citations omitted)); see also Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999); Hare v. City
of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305
(5th Cir. 1995).
Memorandum Opinion and Order - Page 17
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such
defense. In the context of qualified immunity, however, this burden varies from the norm. In this
circuit, the rule is as follows:
Where . . . [a] defendant pleads qualified immunity and shows he is a governmental official
whose position involves the exercise of discretion, the plaintiff then has the burden to rebut
this defense by establishing that the official’s allegedly wrongful conduct violated clearly
established law. We do not require that an official demonstrate that he did not violate clearly
established federal rights; our precedent places that burden upon plaintiffs.
Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see
also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
A right is “clearly established” only when its contours are sufficiently clear that a reasonable
public official would have realized or understood that his conduct violated the right in issue, not
merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640
(1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not
only be clearly established in an abstract sense but in a more particularized sense so that it is
apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law.
Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir.
1998); and Pierce v. Smith, 117 F.3d at 871.
In Anderson, 483 U.S. at 641, the Court refined the qualified immunity standard and held that
the relevant question is whether a reasonable officer or public official could have believed that his
conduct was lawful in light of clearly established law and the information possessed by him. If
public officials or officers of “reasonable competence could disagree [on whether the conduct is
legal], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v.
Memorandum Opinion and Order - Page 18
Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)).
Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341. Conversely, an official’s
conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it
was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster, 28
F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that “the
[specific] action in question has previously been held unlawful.” Anderson, 483 U.S. at 640. For
an official, however, to surrender qualified immunity, “pre-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about), the conclusion for every like-situated,
reasonable government agent that what the defendant is doing violates federal law in the
circumstances.” Pierce v. Smith, 117 F.3d at 882 (emphasis in original and citation omitted); and
Stefanoff v. Hays County, 154 F.3d at 525. Stated differently, while the law does not require a case
directly on point, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. Al-Kidd, 536 U.S. 731, 741 (2011) (citations omitted).
In analyzing qualified immunity claims, the Supreme Court has “repeatedly told courts …
to not define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (citation omitted). Pursuant to Mullenix, courts must consider “whether the violative
nature of particular conduct is clearly established” and must undertake this inquiry “in light of the
specific context of the case, not as a broad general proposition.” Id. (citations and internal
quotations marks omitted).
Memorandum Opinion and Order - Page 19
C.
Analysis
1.
First Amendment Petition Claim
As noted, shortly before this case was set for trial, the court granted the parties’ request to
file limited motions for summary judgment that, according to the parties, would narrow the issues
to be tried. In reviewing the parties’ summary judgment motions and the record in this case, the
court also decided to revisit Judge Solis’s denial of Evans’s Motion for Judgment on Plaintiff’s First
Amendment Free Speech Claim and ordered supplemental briefing by the parties.
In his
supplemental brief, Harmon contended that, even if the court determined that Evans was entitled to
qualified immunity on his First Amendment free speech/retaliation claim, he still had a “petition
claim” for violation of his “First Amendment petition right” that remained against Evans and had
not been challenged by him. Pl.’s Supp. Br. ¶ 12 (footnotes omitted). To demonstrate in his
Supplemental Brief on Qualified Immunity that he had pleaded a “petition claim” against Evans in
his individual capacity for violation of his “First Amendment petition right,” Plaintiff cited paragraph
38 of his Rule 7(a) Reply, which states: “Defendant Evans illegally refused to hear Harmon’s
grievance over his termination, although Dallas County has claimed that all employees of Dallas
County have the right to appeal terminations to their department head.” Pl.’s Rule 7(a) Reply ¶ 38.
Evans was permitted to and did move for summary judgment on what Plaintiff referred to
in his Supplemental Brief on Qualified Immunity (Doc. 54) as his First Amendment Petition Claim
under section 1983. Because the court expressed surprise to learn that Plaintiff had a claim, other
than the claims pleaded in his Complaint for retaliation in violation of the First Amendment Free
Speech Clause and denial of equal protection based on Plaintiff’s alleged right to petition or appeal
the termination of his employment, the parties dedicated a fair amount of argument in their summary
Memorandum Opinion and Order - Page 20
judgment briefs on Plaintiff’s First Amendment Petition Claim to the issue of whether Plaintiff had
actually pleaded a claim against Evans personally for violating of his “First Amendment petition
right.” Id.
Evans contends that Plaintiff’s pleadings contain no such claim and do not satisfy the
heightened pleading standard for qualified immunity set forth in Schultea v. Wood, 47 F.3d 1427,
1433-34 (5th Cir. 1995) (en banc). Evans contends that, even assuming the claim is properly pleaded,
it fails as a matter of law because: (1) he committed no violation of Harmon’s right to petition under
the First Amendment and there was no clearly established law at the time that declared his conduct
unconstitutional; (2) Harmon has no fundamental right to complain about the termination of his
public employment; and (3) Harmon’s grievance regarding his employment termination was a matter
of personal concern, not public concern.
Although Plaintiff previously contended in his Supplemental Brief only that he had a
“petition claim” under the First Amendment remaining against Evans, he now contends in response
to Evans’s summary judgment motion on his First Amendment Petition Claim that he has multiple
“petition claims” remaining against Evans based on various legal theories. Specifically, Plaintiff
contends that he has “petition claims” against Evans for alleged First Amendment, equal protection,
and state and local violations. Pl.’s Summ. J. Resp. Br. ¶ 3 (Doc. 62). Plaintiff contends, with
respect to all of his “petition claims,” whether based on alleged First Amendment, equal protection,
or state and local violations, that “Evans has not established as a matter of law that he is entitled to
qualified immunity on [his] petition claims.” Id. Plaintiff also takes umbrage with the court’s
surprised reaction to his assertion of a new First Amendment Petition Claim four years into the
Memorandum Opinion and Order - Page 21
litigation and maintains that he has asserted, since the inception of this lawsuit, what he now refers
to generically as “petition claims” based on “grievance rights”:
Contrary to the Court’s advocacy regarding an alleged surprise, and notwithstanding
Defendant Evans’ effort to jump on the “surprise” bandwagon, Norvis Harmon complained
that both Defendants denied his grievance rights from the start of the lawsuit in Plaintiff’s
Original Complaint [Doc. 1], not only in Harmon’s Rule 7(a) Reply as the Court erroneously
concluded.
Id. ¶¶ 9, 16.
Harmon contends that he has “petition claims” against Evans because he alleges in his
Complaint in support of his Denial of Equal Protection Claim that: (1) he was denied equal
protection when he sought to appeal the termination of his employment by Defendants “through the
Dallas County grievance system and by appealing to Defendant Evans his department head, but
his requests to appeal were refused by Defendants”; (2) “the right to petition the government for
redress of grievances is a fundamental right”; and “the right to petition the government for redress
of grievances should be subjected to strict scrutiny.” Id. ¶ 10 (quoting Pl.’s Compl. ¶¶ 23, 27, 28)
(footnotes omitted) (emphasis added in Pl.’s Summ. J. Resp. Br.). Plaintiff contends that he gave
further notice of his “petition claims” against Evans in his Rule 7(a) Reply by alleging that: (1)
“Defendant Evans illegally refused to hear Harmon’s grievance over his termination, although
Dallas County has claimed that all employees of Dallas County have the right to appeal terminations
to their department head”; (2) “Defendant Evans was Norvis Harmon’s department head at the time
of Harmon’s wrongful termination”; (3) Defendant Evans had a policy and/or a regular practice
to not hear grievances of employees, including grievances by deputy constables”; and (4) “As an
elected Constable, Defendant Evans was a final policy-maker regarding the grievance policy
Memorandum Opinion and Order - Page 22
and/or practice of his office.” Pl.’s Summ. J. Resp. Br. ¶ 12 (Doc. 62) (quoting Pl.’s Rule 7(a) Reply
¶¶ 37-41) (footnotes omitted) (emphasis added in Pl.’s Summ. J. Resp. Br.).
Plaintiff also points out that he alleged in his Rule 7(a) Reply that: “The right to petition the
government for the redress of grievances is established by the First Amendment to the U.S.
Constitution and it is a fundamental right.” Pl.’s Summ. J. Resp. Br. ¶ 13 (quoting Pl.’s Rule 7(a)
Reply ¶ 45). Based on the equal protection petition and grievance allegations in his Complaint and
the allegations in his Rule 7(a) Reply regarding the right to petition being a fundamental right under
the First Amendment, Plaintiff contends that his petition claim or what he now refers to as his
“petition claims” are not limited to the Denial of Equal Protection claim alleged in his Complaint
against Dallas County but also encompass additional legal theories of recovery against Evans for
equal protection violations; violations of the First Amendment Petition Clause; and violations of
Texas Government Code § 617.005 and Dallas County Code Chapter 86.
Regarding the merits of his First Amendment Petition Claim, Plaintiff responds that the right
to petition the government for redress of grievances is a well-established fundamental right that is
guaranteed by the First Amendment to the United States Constitution, as well as Texas Government
Code § 617.005, which, according to Harmon, “protects the right of public employees to present
grievances.”3 Harmon contends that Evans’s refusal to hear his grievance regarding the termination
of his employment violated his First Amendment right to petition because, once Dallas County
voluntarily established a grievance process under Dallas County Code Chapter 86 for constables like
him, who were hired after August 19, 2003, to present employment grievances, including those
3
The court addresses in a separate section below Harmon’s contention that he has a petition claim based on
alleged equal protection violations and violations of Texas Government Code § 617.005 and Dallas County Code
Chapter 86.
Memorandum Opinion and Order - Page 23
regarding termination, to their chain of command or elected constable for the precinct in which they
worked, “Evans was not free to refuse to hear [his] post[-]termination grievance” and could not
thereafter institute policies that infringe on his right to petition or discriminate and retaliate against
him in administering the County’s grievance process without violating the First Amendment.4
Harmon further asserts that Evans’s “policy [of] refusing to hear post[-]termination grievances from
deputy constables hired after August 19, 2003,” which denied him and other deputy constables their
First Amendment right to petition, Pl.’s Summ. J. Resp. Br. ¶ 32 (Doc. 62), should be reviewed
under a strict scrutiny standard, and, when reviewed under that standard, the policy fails because it
is not narrowly tailored to achieve a compelling state interest. Id. ¶¶ 29-31. In support of his
summary judgment response, Plaintiff relies on the evidence (Doc. 44) he previously submitted in
support of his Motion for Partial Summary Judgment on his equal protection claim against the
County, as well as the evidence (Doc. 47) he submitted in response to Defendants’ Limited Motion
for Summary Judgment. He also relies on his related prior statements of undisputed facts (Docs. 43,
47-1).
Evans replies that “Plaintiff misstates the applicable law regarding the burden of proof on
the qualified immunity issue, for it is [he], not the Constable, who has the burden to prove that the
latter is not entitled to qualified immunity.” Evans’s Summ. J. Reply 4 (Doc. 64). Evans contends
that Plaintiff has not met his burden in this regard. Evans also continues to maintain that Plaintiff’s
pleadings cannot be construed as including a claim based on the First Amendment’s Petition Clause,
4
Pl.’s Summ. J. Br. ¶ 26 (citing and quoting Professional Ass’n of College Educators (“P.A.C.E.”), TSTA/NEA
v. El Paso Cty. Cmty. Coll. Dist., 730 F.2d 258, 263 (5th Cir. 1984); and Alabama State Fed’n of Teachers v. James,
656 F.2d 193, 197 (5th Cir. 1981), for the propositions that: (1) public employees have a right to petition government
employers; and the voluntary establishment of a grievance procedure by a public employer and subsequent discrimination
or retaliation against employees in administering the grievance process violates the First Amendment.
Memorandum Opinion and Order - Page 24
and Plaintiff’s allegations that he was not allowed to grieve his termination are not sufficiently
specific and detailed to support such a claim.
In addition, Evans reasserts that the First
Amendment’s Petition Clause does not grant employees like Plaintiff an absolute constitutional right
to grieve the termination of their employment. To the extent Plaintiff urges arguments and authority
in support of his First Amendment Petition Claim that were made in connection with the parties’
prior motions for partial summary judgment regarding Harmon’s Denial of Equal Protection claim
based on Defendants’ refusal to hear the appeal of his termination, Evans relies on the briefs
previously submitted by Defendants.
a.
Whether Plaintiff Has Pleaded a First Amendment Petition Claim
“A properly pleaded complaint must give ‘fair notice of what the claim is and the grounds
upon which it rests.’” De Franceschi v. BA C Home Loans Servicing, L.P., 477 F. App’x 200, 204
(5th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 698-99 (2009)). For a number of reasons,
the court determines that Plaintiff has not pleaded a First Amendment Petition Claim, as the factual
allegations in his Complaint against the County and Evans are not sufficient to put Evans on notice
that Plaintiff intended to assert a separate retaliation claim against him in his individual capacity
under the First Amendment’s Petition Clause. The claims in Plaintiff’s Complaint are expressly
limited to those for “Denial of Equal Protection” and “Free Speech Claim.” Pl.’s Compl. 4, 5.
Moreover, Plaintiff distinguishes between these claims by alleging that his equal protection claim
is based on Defendants’ refusal or denial of his grievances appealing the termination of his
employment and alleging that his free speech claim is based on Defendants’ retaliation in terminating
his employment in violation of the First Amendment for speaking out about Evans’s misconduct:
Memorandum Opinion and Order - Page 25
20.
Plaintiff alleges Defendants’ refusal to allow him the opportunity to present his
grievances is a denial of equal protection of law and a violation of 42 U.S.C. § 1983.
21.
Plaintiff alleges Defendants’ termination of his employment for speaking out about
Evans’ and others’ illegal conduct is a violation of his first amendment rights to free speech
and a violation of 42 U.S.C. § 1983.
Id. ¶¶ 20-21. Plaintiff similarly delineates in his Rule 7(a) Reply between his equal protection
petition claim and his First Amendment retaliation/free speech claim. See Pl.’s Rule 7(a) Reply ¶¶
30-33, 50 (Doc. 25) (allegations regarding First Amendment retaliation/free speech claim); 34-49
(allegations regarding equal protection petition claim). Likewise, in response to Defendants’ Limited
Summary Judgment Motion, after this action had been pending three years, Plaintiff asserted only
that he had two claims in this action for “denial of equal protection and retaliatory discharge . . . for
exercising his free speech rights.” Pl.’s Resp. to Defs.’ Summ. J. Mot. ¶¶ 3, 78 (Doc. 47-1). It was
only after the court announced its decision to revisit Judge Solis’s ruling on Evans’s Motion for
Judgment as to Plaintiff’s Free Speech claim and ordered supplemental briefing on the motion that
Plaintiff contended for the first time in February 2017 that he still had a First Amendment Petition
Claim against Evans, even if his Free Speech Claim was dismissed.
Plaintiff correctly noted in his Supplemental Brief (Doc. 54) that the framework used to
govern retaliation claims by public employees under the First Amendment Speech Clause and
Petition Clause is the same. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011).
Retaliation claims based on First Amendment speech and petition rights, however, are not
synonymous, as the former is based on retaliation for speaking out on matters of public concern,
whereas the latter is based on retaliation for petitioning on matters of public concern. Specifically,
to plead a retaliation cause of action under Section 1983 for violations of the First Amendment
Memorandum Opinion and Order - Page 26
Speech or Petition Clauses, a public employee must allege, or set forth allegations from which the
court may reasonably infer, that: “(1) he suffered an adverse employment action, (2) his speech [or
petition] involved a matter of public concern, (3) his interest in commenting on the matter of public
concern outweighed the defendant’s interest in promoting efficiency . . . , and (4) his speech [or
petition] was a substantial or motivating factor behind the defendant’s actions.” James v. Tex. Collin
Cty., 535 F.3d 365, 375-76 (5th Cir. 2008) (citations omitted). First Amendment claims, whether
based on the Speech Clause or Petition Clause, also differ from equal protections claims, which must
be supported by allegations that “two or more classifications of similarly situated persons were
treated differently.” Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012) (per
curiam) (citation omitted). If this element is alleged, the court determines whether the claim should
be reviewed under a strict scrutiny or rational basis standard. Id. (citation omitted). Strict scrutiny
applies only when “a government classification implicates a suspect class or a fundamental right.”
Id. (citation omitted). 217. “Otherwise, rational-basis review applies and th[e] court need only
determine whether the classification is rationally related to a legitimate government interest.” Id.
Here, Harmon alleges in his Complaint in support of his Free Speech Claim that Defendants
terminated his employment for speaking out about Evans’s illegal conduct. Harmon similarly alleges
in his Rule 7(a) Reply that Evans wrongfully terminated his employment in retaliation for exercising
his First Amendment right to speak out about Evans’s illegal conduct, which, according to Harmon,
involved a matter of public concern. Harmon, however, does not allege anywhere in his Complaint
or Rule 7(a) Reply that he was retaliated against by Evans in violation of the First Amendment and
suffered an adverse employment action as a result of his petitioning or appealing the termination of
Memorandum Opinion and Order - Page 27
his employment; nor does he allege any facts from which the court could reasonably infer that the
appeal of his employment termination involved a matter of public concern.
Moreover, while Harmon alleges in his Complaint and Rule 7(a) Reply that “the right to
petition the government for redress of grievances is a fundamental right,” this allegation is clearly
made in connection with his claim for Denial of Equal Protection, as he contends that “the actions
of Defendants to deprive Plaintiff of the right to petition the government for redress of grievances,
when such right is granted to other similarly situated employees, is a denial of the Plaintiff’s right
to equal protection of law guaranteed by the U.S. Constitution . . . that should be subjected to strict
scrutiny.” Pl.’s Compl. ¶¶ 26-28. Though Harmon alleges for the first time in his Rule 7(a) Reply
that “[t]he right to petition the government for the redress of grievances is established by the First
Amendment to the U.S. Constitution and it is a fundamental right,” Pl.’s Rule 7(a) Reply ¶ 45 (Doc.
25) (emphasis added), this allegation similarly pertains to his “denial of equal protection” claim, see
id. ¶ 46, which he distinguishes from his First Amendment claim against Evans for retaliation in
violation of his “First Amendment right to speak out on a matter of public concern.” Id. ¶ 50.
Regardless, the reference in Harmon’s Rule 7(a) Reply regarding the right to petition being a
fundamental right under the First Amendment is insufficient to state a retaliation claim under the
First Amendment’s Petition Clause, even if considered in conjunction with the petition allegations
in Plaintiff’s Complaint.
Further, even if Harmon intended to assert a Petition Clause claim by alleging in his Rule
7(a) reply that the right to petition is established by the First Amendment, a “Rule 7(a) reply is not
a proper vehicle for [a] plaintiff[] to raise a new cause of action that [he has] not been granted leave
to add through an amended complaint.” Ellis v. Crawford, No. 3:03-CV-2416-D, 2007 WL 1624773,
Memorandum Opinion and Order - Page 28
at *11 (N.D. Tex. June 6, 2007). This is so because the purpose of the heightened pleading standard
established by the Fifth Circuit in Schultea that governs Rule 7(a) replies is to require a plaintiff to
support the claims he has already asserted with “sufficient precision and factual specificity to raise
a genuine issue as to the illegality of defendant[s’] conduct at the time of the alleged acts’” in
response to a defendant’s claim of qualified immunity. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.
1999) (quoting Schultea, 47 F.3d at 1434. Harmon’s contention in response to Evans’s Rule 12(c)
Motion for Judgment that he should be granted leave to amend his pleadings after expiration of the
pleading deadline, two years after the lawsuit was filed, because Defendants had not previously
pointed out the deficiencies in his pleadings via a Rule 12(b)(6) motion to dismiss or motion for
more definite statement turns the heightened pleading standard and burden for qualified immunity
on its head.
In any event, Judge Solis’s order requiring Plaintiff to file a Rule 7(a) Reply was limited to
“the issue of Defendants’ qualified immunity defenses” and did not grant him leave to assert new
causes of action or allegations supporting new causes of action. Order (Doc. 24). While Judge Solis
impliedly granted Plaintiff’s request for leave, included in his response to Evans’s Motion for
Judgment (Doc. 27), to supplement his Complaint and Rule 7(a) Reply, Plaintiff said nothing about
asserting a new cause of action for retaliation under the First Amendment Petition Clause; rather his
motion for leave and proposed supplement to his Complaint and Rule 7(a) Reply sought only to
supplement his pleadings to correct deficiencies in his First Amendment retaliation/speech claim.
See Pl.’s Resp. to Evans’s Mot. for J. (Doc. 27) ¶¶ 5, 16-19; see also generally Pl.’s Supp. to Orig.
Compl. & Rule 7(a) Reply (Doc. 27-1). Thus, Harmon cannot use his Rule 7(a) Reply to add a new
claim that was not included in his Complaint, and the court does not construe his Rule 7(a) Reply
Memorandum Opinion and Order - Page 29
as amending his pleadings to add a new cause of action for retaliation in violation of the Fist
Amendment Petition Clause.
Similarly, the court does not construe Harmon’s July 2016 summary judgment arguments as
raising a new retaliation claim under the First Amendment’s Petition Clause, even though he
contended for the first time that Dallas County’s order limiting access to the County’s grievance
system to constables hired before August 19, 2003, constituted a violation of his First Amendment
right to petition the government for grievances, as well as a denial of equal protection. Pl.’s Summ.
J. Br. ¶¶ 37-39. It is well-established that a claim raised for the first time in the context of a
summary judgment motion is “not properly before the court.” Cutrera v. Board of Supervisors of
La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (quoting Fisher v. Metropolitan Life Ins. Co., 895
F.2d 1073, 1078 (5th Cir. 1990)). Accordingly, any summary judgment arguments by Plaintiff
regarding First Amendment violations that were made in support of his equal protection claim
against Dallas County could not have given rise to a new retaliation claim under the First
Amendment Petition Clause.
Plaintiff appears to contend that he should be entitled to recover on any theory of recovery
that fits the factual allegations in his pleadings, even if the theory of recover or cause of action itself
is not pleaded. At the motion to dismiss stage, “the fact that a plaintiff pleads an improper legal
theory does not preclude recovery under the proper theory” or amendment of pleadings. Doss v.
South Cent. Bell Tel. Co., 834 F.2d 421 (5th Cir. 1987). This case, however, was set for trial and
was far beyond the motion to dismiss stage when Plaintiff first asserted that he had a retaliation
claim under the First Amendment’s Petition Clause. The same is true of Plaintiff’s most recent
assertion that he has additional “petition claims” remaining against Evans, which was not made until
Memorandum Opinion and Order - Page 30
after the court dismissed his First Amendment Free Speech Claim against Evans and all claims
against Dallas County and Evans in his official capacity, and after Evans moved for summary
judgment on his First Amendment Petition Claim.
In upholding the denial of a plaintiff’s request in Southern Constructors to add a new theory
of recovery after an adverse ruling, the Fifth Circuit rejected the argument that a party, even in the
late stages of litigation, should be “entitled to recovery under any legal theory that would fit
allegations of fact contained in the operative pleadings,” and explained that proceeding in the
proposed “blind-hog-occasionally-finds-an-acorn approach would play havoc with trial procedure
and would negate the . . . winnowing process that occurs under the present federal rules” for
narrowing the facts and relevant legal issues for trial. Southern Constructors Grp., Inc. v.
Dynalectric Co., 2 F.3d 606, 610 (5th Cir. 1993) (footnote omitted). The Fifth Circuit has also
admonished litigants for engaging in the type of “wait and see” approach in which Plaintiff has
engaged in this case, particularly when a litigant is represented by counsel and fails to assert a claim
as soon as he could have. Goldstein v. MCI WorldCom, 340 F.3d 238, 255 n.6 (5th Cir. 2003)
(citation omitted). The Fifth Circuit has also made clear that a “busy district court need not allow
itself to be imposed upon by the presentation of theories seriatim.” Rosenzweig v. Azurix Corp., 332
F.3d 854, 864-65 (5th Cir. 2003) (citation omitted); Southern Constructors Grp. Inc., 2 F.3d at 612
(noting that the Fifth Circuit has affirmed denials of requests for leave to amend when the movant
“attempted to present theories of recovery seriatim to the district court”) (citation omitted).
Plaintiff has engaged in a “wait and see” approach and pattern of presenting theories of
recovery seriatim throughout this case by only seeking to amend his pleadings, attempting to revive
previously abandoned claims, and asserting new claims whenever he is faced with dismissal of a
Memorandum Opinion and Order - Page 31
claim, and even filing a motion to recuse the undersigned. It was only after Evans filed his Motion
for Judgment on Plaintiff’s Free Speech Claim, and after Plaintiff filed his Rule 7(a) Reply, that
Plaintiff asked in response to the Motion for Judgment to supplement his pleadings and Rule 7(a)
Reply as to his Free Speech Claim. During the parties’ first round of summary judgments on his
equal protection claim, he contended for the first time that Defendants had violated the First
Amendment Petition Clause and attempted to blur the distinction between his equal protection
petition claim and the newly asserted but unpleaded First Amendment Petition Claim by contending
that Defendants’ denial of or refusal to hear his petition appealing the termination of his employment
was a violation of both his right to equal protection and the First Amendment’s Petition Clause.
Next, after the court announced its decision to revisit Judge Solis’s ruling on Evans’s Motion for
Judgment as to Plaintiff’s Free Speech Claim and ordered supplemental briefing on the motion,
Plaintiff contended that, even if his Free Speech Claim was dismissed, he still had a First
Amendment Petition Claim against Evans. Finally, after Evans was allowed to move for summary
judgment on Plaintiff’s new First Amendment Petition Claim, Plaintiff contended in response to
Evans’s motion on the First Amendment Petition Claim that he has additional “petition claims”
remaining against Evans based on equal protection violations and violations of state and local law,
even though he only previously contended that he had a First Amendment Petition Claim remaining
against Evans in his individual capacity.
Moreover, Harmon alleged only that he was seeking relief against Evans in his individual
capacity with respect to First Amendment Free Speech Claim, Pl.’s Rule 7(a) Reply ¶ 50, and when
Evans moved for judgment on April 17, 2015, on “all the claims against him in his individual
capacity” based on his qualified immunity, Harmon did not clarify that he had pleaded or intended
Memorandum Opinion and Order - Page 32
to pursue claims against Evans in his individual capacity, other than his Free Speech Claim.5
Evans’s Mot. for J. 9 (Doc. 26). Likewise, Plaintiff did not clarify that he had a First Amendment
Petition Claim against Evans, either in his official or individual capacity, in response to the following
assertion in Evans’s Motion for Judgment regarding Plaintiff’s claims:
Plaintiff filed an original complaint against Dallas County and the Constable on June 3,
2013. (Doc. 1). In that complaint, Plaintiff asserted two claims: (1) “free speech” and (2)
denial of equal protection. The “free speech” claim is that Plaintiff’s employment with the
County as a Deputy Constable was terminated in retaliation for speaking out on a matter of
public concern. (Doc. 1, p. 5).
Id. at 1. Later, when the County and Evans subsequently filed a joint motion for partial summary
judgment and summarized “Plaintiff’s Claims” as including only those for “1. Denial of Equal
Protection” and “2. Retaliation for Exercise of Free Speech Rights,” Plaintiff said nothing about
having a separate petition claim against Evans based on First Amendment violations or any other
theory. Defs.’ Summ. J. Br. 2-3 (Doc. 40). Similarly, when Defendants asserted, in response to
Plaintiff’s Motion for Partial Summary Judgment and their cross-motion for summary judgment on
Plaintiff’s Denial of Equal Protection claim, that Harmon had two claims—one for denial of equal
protection and one for retaliation for exercise of free speech rights—Harmon did not dispute this
characterization of his claims. Defs.’ Resp. to Pl.’s Summ. J. Mot. 1 (Doc. 46) (“Harmon’s two
claims: denial of equal protection and retaliation for exercise of free speech rights.”). Additionally,
Plaintiff did not clarify that he had a petition claim, based on either the denial of equal protection,
First Amendment violations, or any other theory, against Evans in his official or individual capacity
when Defendants twice contended during the first round of summary judgments that his Denial of
5
See Matherne v. Wilson, 851 F.2d 752, 759 (5th Cir.1988) (“[T]he protection of qualified immunity [under
section 1983] extends to an individual only in his individual capacity.”) (citing Kentucky v. Graham, 473 U.S. 159, 16768 (1985)).
Memorandum Opinion and Order - Page 33
Equal Protection claim is “applicable only against the County, which created the rule, and is not
applicable to the Constable, who had no involvement with the enactment of this rule or its
application to Harmon.” Id. at 4 (Doc. 46); Defs.’ Summ. J. Br. 2 (Doc. 40). Based on the course
of proceedings in this case, the court concludes that Harmon has not pleaded any claims against
Evans in his individual capacity other than his Free Speech Claim that the court has already
dismissed.6 Alternatively, even if pleaded, the claims were abandoned when Harmon failed to
respond to the contentions and characterizations of Plaintiff’s claims in Defendants’ Motion for
Judgment and prior summary judgment briefs.7
b.
Whether Plaintiff’s First Amendment Petition Claim Involves a
Matter of Public Concern
Even assuming that Plaintiff’s First Amendment Petition Claim was properly pleaded and
before the court, it fails on the merits. Plaintiff did not respond to Evans’s contention that his appeal
of his employment termination was personal in nature and thus insufficient to support a First
6
When a plaintiff does not specify whether an official is sued in his official or individual capacity, courts look
to the “course of the proceedings” in a case to determine “the nature of liability sought to be imposed.” United States
ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 402-03 (5th Cir. 2004) (quoting Kentucky, 473 U.S. at 167
n.14). Factors relevant to the inquiry include the substance of the complaint, the nature of relief sought, and statements
in dispositive motions and responses. See United States ex rel. Adrian, 363 F.3d at 402-03 (“The California Defendants
clearly stated, in both the initial and the reply memoranda supporting their motion to dismiss, that the Livermore
employees should be dismissed because they were only named in their official capacity. Adrian never challenged this
assertion, arguing only that these employees were subject to liability because the Regents and Livermore were subject
to liability. In its analysis of this motion to dismiss, the California court did not distinguish between the Livermore
employees and Livermore. Thus, the course of proceedings in this case clearly indicates that in the first amended
complaint the Livermore employees were only named in their official and not in their personal capacities. The California
court correctly dismissed the Livermore employees because the FCA does not provide a cause of action against state
agency employees in their official capacity.”) (footnote omitted).
7
The Fifth Circuit has held that, when a plaintiff fails to pursue a claim or defense beyond the party’s initial
complaint, the claim is deemed abandoned. Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)
(concluding that the plaintiff abandoned her retaliatory abandonment claim when she failed to defend the claim in
response to motion to dismiss); Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983) (explaining that
a party “in his opposition to a motion for summary judgment cannot abandon an issue and then . . . by drawing on the
pleadings resurrect the abandoned issue.”).
Memorandum Opinion and Order - Page 34
Amendment petition claim.8 The First Amendment right to petition against the government as
employer is limited to matters of public concern. Guarnieri, 564 U.S. at 398-99. “If a public
employee petitions as an employee on a matter of purely private concern, the employee’s First
Amendment interest must give way, as it does in speech cases.” Id. at 398. “[W]hether an
employee’s petition relates to a matter of public concern will depend on “the content, form, and
context of [the petition], as revealed by the whole record.” Id. at 398 (quoting Connick v. Myers, 461
U.S. 138, 147-148, and n.7 (1983). The Court in Guarnieri further explained as follows:
The forum in which a petition is lodged will be relevant to the determination of whether the
petition relates to a matter of public concern. A petition filed with an employer using an
internal grievance procedure in many cases will not seek to communicate to the public or to
advance a political or social point of view beyond the employment context.
Of course in one sense the public may always be interested in how government
officers are performing their duties. But . . . that will not always suffice to show a matter of
public concern. A petition that “involves nothing more than a complaint about a change in
the employee’s own duties” does not relate to a matter of public concern[.] . . . The right of
a public employee under the Petition Clause is a right to participate as a citizen, through
petitioning activity, in the democratic process. It is not a right to transform everyday
employment disputes into matters for constitutional litigation in the federal courts.
8
Plaintiff previously argued, in his reply brief supporting his prior Motion for Partial Summary Judgment on
his equal protection claim, that the right to petition under the First Amendment is not limited to matters of public concern.
Pl.’s Summ. J. Reply ¶ 18 (Doc. 49). Plaintiff, nevertheless, contended that the appeal of his employment termination
involved a public concern because he asserted in the appeal, “I believe I have been retaliated against for making a good
faith report of a violation of law to the special prosecutor, Ted Lyons, in violation of the Texas Whistleblower Act.” Id.
¶ 20 (quoting Pl.’s App. 51). Plaintiff reasoned that his appeal involved matters of public concern because it “addressed
his reports of Defendant Evans’[s] illegal conduct, which prompted Harmon’s wrongful termination,” and “[m]isconduct,
illegal conduct and corruption by government officials are very clearly matters of public concern.” Pl.’s Summ. J. Reply
¶ 20 (Doc. 49) In responding to Evans’s current summary judgment motion on his First Amendment Petition Claim,
Plaintiff did not incorporate by reference the arguments he made in support of or in opposition to the parties’ prior
summary judgment motions. He, instead, only incorporated his statement of undisputed facts and the evidence in his
appendices. Accordingly, the court need not and does not address all of the legal arguments previously raised by
Plaintiff, except to the extent necessary to resolve Evans’s contention that Plaintiff’s First Amendment Petition Claim
fails because it does not involve a matter of public concern.
Memorandum Opinion and Order - Page 35
Guarnieri, 564 U.S. at 398-99. As a result, “[i]nternal personnel disputes and management decisions
are rarely a matter of public concern.” Gibson v. Kilpatrick, 838 F.3d 476, 485 (5th Cir. 2016)
(quoting Stotter v. University of Tex. at San Antonio, 508 F.3d 812, 827 (5th Cir. 2007)). Whether
a petition addressed a matter of public concern is a question of law. See Anderson v. Pasadena
Indep. Sch. Dist., 184 F.3d 439, 444 (5th Cir. 1999) (citation omitted).
It is undisputed that Plaintiff’s First Amendment Petition claim pertains to Harmon’s use of
an internal Dallas County grievance procedure to appeal the termination of his employment, a
personal concern.9 See Pl.’s App. 50-53 (Doc. 44). Although Harmon states that his employment
was terminated in retaliation for “a good faith report of a violation of law to the special prosecutor,
Ted Lyons, in violation of the Texas Whistle Blower Act,” id. at 51, the petition appealing his
termination involves nothing more than a grievance regarding Harmon’s employment status, which
does not relate to a public concern. See Guarnieri, 564 U.S. at 399; Pl.’s App. 50-52 (Doc. 44).
There is no evidence that Harmon was using the petition appealing his employment termination as
a platform to publicly air his concerns about Evans’s conduct. He, instead, was merely using the
petition to appeal the termination of his employment any employee, private or public, would do. In
other words, the point of Harmon’s appeal was not to present concerns about Evans’s conduct but
to seek reinstatement of his employment as deputy constable with the County. Moreover, Harmon’s
allegation in the petition appealing the termination of his employment and this lawsuit that his
employment was terminated in violation of the Texas Whistle Blower Act or the First Amendment
9
Harmon relies on the Dallas County Formal Grievance Form he submitted to appeal the termination of his
employment under the County’s formal civil service grievance procedure applicable to deputy constables hired before
August 19, 2003, to show that he also appealed under the separate County procedure that permits deputy constables with
no formal civil service grievance rights to submit grievances to their department head or human resources. See Pl.’s App.
50-54 (Doc. 44).
Memorandum Opinion and Order - Page 36
is insufficient to convert what is a matter of private concern regarding Harmon’s employment being
terminated into a matter of public concern. See Gibson, 838 F.3d at 484.
The personal relief sought by Harmon in the petition appealing his termination, as well as
the relief sought by him in this lawsuit, lend further support to the court’s conclusion that Harmon’s
appeal of his employment termination involves a personal matter rather than one involving public
concern. Id. at 485 (“The suit asks only for personal relief. Gibson did not request ‘any type of
damages implicating the public.’ He chose not to seek an injunction to prevent the mayor from
engaging in such future behavior.”). Specifically, the relief sought by Harmon in his 2011 appeal
and this lawsuit merely seek to rectify the harm he allegedly suffered as a result of his being fired.
In his appeal grievance form, Harmon requests that “his termination be voided, that all back pay and
benefits be restored to [him], and that any and all reference to this disciplinary action and the related
investigation be removed from my personnel file.” See Pl.’s App. 51 (Doc. 44). Similarly, in this
lawsuit, Harmon requests only damages he incurred as a result of Defendants’ conduct in allegedly
terminating his employment unlawfully and denying or refusing to hear the appeal of his termination.
Pl.’s Compl. 35 (“Plaintiff’s professional career has been irreparably damaged due to Defendants’
unlawful conduct and Plaintiff has suffered damages, including: emotional distress and suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses in the past;
and loss of earnings and loss of earning capacity in the future.”); Pl.’s Rule 7(a) Reply (“Norvis
Harmon has been damaged as a result of his wrongful termination; because of Defendant Evans’
refusal to hear any appeal of Harmon’s wrongful termination; and as a result of his denial of
grievance rights in the Dallas County Civil Service system by Defendant Dallas County.”).
Memorandum Opinion and Order - Page 37
Additionally, Harmon contends that his First Amendment Petition Claim is against Evans
in his individual capacity, and he seeks to hold Evans personally liable for damages allegedly
sustained as a result of his employment being terminated. In Gibson, the Fifth Circuit addressed a
closely analogous issue of whether a plaintiff’s petition involved a matter of public concern and
concluded that it did not because the defendant had been sued in his individual capacity:
Importantly, Gibson’s suit was against the mayor only in his personal (or individual)
capacity. “Personal-capacity suits seek to impose personal liability”; they cannot
establish governmental liability. “[A]n award of damages against an official in his
personal capacity can be executed only against the official’s personal assets.” For
purposes of liability, a suit against a governmental official in his individual capacity
is the equivalent of suing one’s neighbor. Thus, because they do not concern the
public [], personal-capacity suits are much less likely to be matters of public concern.
Therefore, the form of Gibson’s suit—personal capacity—provides significant
support for the conclusion that it was not a matter of public concern.
Gibson, 838 F.3d at 486 (footnotes and internal citations omitted). For similar reasons, the court
concludes that Harmon’s petition or grievance appealing the termination of his employment, which
is the subject of his lawsuit, is personal in nature, as he seeks to hold Evans personally liable for
damages allegedly sustained as a result of his employment being terminated.
Thus, for the foregoing reasons, and after considering “the content, form, and context of
[Harmon’s petition], as revealed by the whole record,” the court determines that Harmon’s petition
or grievance appealing his employment termination does not pertain to a matter of public concern.
Moreover, even if the court were to construe the content of Harmon’s appeal of his employment
termination as a mix of private and public concerns, it concludes that private concerns predominate
when considering the content, form, and context of the appeal. See id. at 487. Plaintiff’s First
Amendment Petition Claim, therefore, fails as a matter of law. As Plaintiff has failed to raise a
genuine dispute of material fact regarding a violation of a constitutional or federal statutory right
Memorandum Opinion and Order - Page 38
with respect to his First Amendment Petition Claim, no further inquiry by the court is necessary, and
Evans is entitled to judgment as a matter of law on his qualified immunity defense to Plaintiff’s
Petition Claim to the extent based on alleged retaliation in violation of the First Amendment’s
Petition Clause. See Saucier, 533 U.S. at 201.
2.
Petition Claim Based on Denial of Equal Protection
As noted, Plaintiff contends in his response to Evans’s summary judgment motion regarding
Plaintiff’s First Amendment Petition Claim that Evans is not entitled to qualified immunity or
summary judgment on his Petition Claim to the extent it is based on the alleged denial of equal
protection.10 Plaintiff contends that, while deputy constables hired after August 19, 2003, have no
civil service grievance rights, Dallas County previously admitted that deputy constables with no
formal civil service grievance rights can still submit their grievances to their department head or
human resources. Plaintiff contends that the undisputed evidence shows that Evans refused to hear
his posttermination grievance; that Evans had a policy of refusing to hear grievances from terminated
deputy constables; and that Evans has failed to present any compelling state interest for his refusal
to hear employee grievances.
In his reply brief, Evans accuses Plaintiff of failing once again to confine his arguments to
the issue at hand and contends that Plaintiff relies on a “shotgun” approach in responding to his
10
Although Plaintiff’s petition claims against Evans based on the denial of equal protection and violations of
state and local law were not the subject of Evans’s recent summary judgment motion and were instead raised in Plaintiff’s
summary judgment response, both parties rely on their prior summary judgment briefs and evidence and had an
opportunity to present any additional arguments and evidence regarding these claims in conjunction with the summary
judgment motion now before the court. As noted, Defendants also previously requested that the court treat their response
to Plaintiff’s Motion for Partial Summary Judgment on his equal protection claim as a cross-motion for summary
judgment. Accordingly, the court need not give Plaintiff or Evans another opportunity to brief the issues or submit
evidence before ruling on these claims, which, for the reasons herein explained, fail because they are not before the court,
fail as a matter of law, or both.
Memorandum Opinion and Order - Page 39
motion in an effort to distract the court from the issue to be decided. Evans contends that, instead
of focusing on his contention that he is entitled to qualified immunity with respect to Plaintiff’s First
Amendment Petition Claim, Plaintiff’s response “re-hashes” or “re-processes” in large part matters
briefed in the parties’ prior summary judgment motions regarding equal protection, Government
Code § 617.003, and Dallas County Code Chapter 86 that were rejected by the court. Evans’s
Summ. J. Reply 2. Evans asserts, for the reasons set forth in Defendants’ prior briefs, that there is
no general or fundamental “right to petition.”
It appears that Harmon’s equal protection Petition Claim is limited to his contention that he
was denied the opportunity to participate in Dallas County’s informal grievance procedure that
allows deputy constables with no formal civil service grievance rights to submit grievances to their
department head or human resources. Because of the ever-changing nature of Plaintiff’s claims in
this case and his pleadings not being a model of pellucid draftsmanship, the court, out of an
abundance of caution, determines, for the reasons previously explained in this opinion and the
court’s March 31, 2017 opinion, that Plaintiff has not asserted an equal protection Petition Claim
against Evans in his individual capacity based on the County’s formal civil service grievance
procedure or, if asserted, the claim was abandoned, and any such claim against Evans in his official
capacity is barred by res judicata.
Further, although the court has already determined that Harmon’s individual capacity claims
against Evans are limited to his Free Speech Claim, it further determines that, even if Harmon can
be said to have asserted and not abandoned an equal protection Petition Claim against Evans in his
individual capacity based on his contention that he was denied the opportunity to participate in
Dallas County’s informal grievance procedure, the court concludes that this claim fails as a matter
Memorandum Opinion and Order - Page 40
of law. Instead of coming forward with evidence to establish that “two or more classifications of
similarly situated persons were treated differently”11 by Evans, Harmon acknowledges and has
consistently maintained that Evans had a policy or regular practice of refusing to hear grievances
from terminated deputy constables,12 and there is no evidence that Evans treated similarly situated
terminated deputy constables hired after August 19, 2003, differently in hearing or deciding their
employment termination grievances. Thus, Harmon has not satisfied the first requirement for an
equal protection claim, and the court need not address the parties’ contentions as to whether the
claim should be reviewed under a strict scrutiny or rational basis standard. Gallegos-Hernandez, 688
F.3d at 195 (citation omitted). Because Harmon has failed to raise a genuine dispute of material fact
regarding a violation of a constitutional or federal statutory right based on the denial of equal
protection, no further inquiry by the court is necessary, and Evans is entitled to judgment as a matter
of law on his qualified immunity defense to Plaintiff’s Petition Claim to the extent based on an
alleged denial of equal protection. See Saucier, 533 U.S. at 201.
3.
Petition Claim Based on Texas Government Code § 617.005 and Dallas
County Code Chapter 86
As noted, Harmon now contends that Evans’s refusal to hear his grievance violated his
“statutory grievance rights” under Texas Government Code § 617.005 and Dallas County Code
Chapter 86. Pl.’s Summ. J. Resp. 17-18. Harmon, however, has not pleaded any claims in this case
11
Gallegos-Hernandez, 688 F.3d at 195 (citation omitted).
12
See Pl.’s Rule 7(a) Reply ¶ 40 (Doc. 25); Pl.’s Summ. J. Resp. Br. ¶¶ 12, 17, 29, 30, 32, 33, 40 & n.43 (Doc.
62).
Memorandum Opinion and Order - Page 41
for violations of Texas Government Code § 617.005 and Dallas County Code Chapter 86.13 These
claims were instead raised for the first time in response to Evans’s summary judgment motion on
Plaintiff’s First Amendment Petition Claim. “A claim which is not raised in the complaint but,
rather, is raised only in response to a motion for summary judgment is not properly before the court.”
Cutrera, 429 F.3d at 113 (citation omitted). For the same reason, Harmon’s earlier passing reference
to Dallas County Code Chapter 86 in his “partial summary judgment [motion] on his claim that his
exclusion from the protections of the Dallas County civil service system is a denial of equal
protection under law that violates 42 U.S.C. § 1983” is not a valid basis for him to convert or expand
his equal protection claim as originally pleaded into a separate claim against Evans for alleged
violations of Dallas County Code Chapter 86. Pl.’s Summ. J. Br. ¶ 1, 26 (Doc. 43) (“Dallas
County’s civil service ordinance and grievance procedures are found in Article 86 of the Dallas
County Code.”) (footnote omitted). Additionally, as already explained, any equal protection claim
by Plaintiff against Evans in his individual or official capacities based on Defendants’ denial of
Harmon’s appeal through the Dallas County civil service grievance procedures was abandoned by
Plaintiff or is barred by res judicata.
Even if the claims had been properly pleaded as an additional legal basis to support a right
to petition claim by Plaintiff, they fail as a matter of law because Plaintiff alleges in his pleadings
that this action and the claims asserted in this case are all brought pursuant to 28 U.S.C. § 1983;
however, “[a] violation of state law is not cognizable under 28 U.S.C. § 1983.” Carr v. Johnson,
51 F. App’x 928, 2002 WL 31415157, at *1 (5th Cir. 2002) (per curiam) (citing Leffall v. Dallas
13
Plaintiff asserted a claim against Dallas County in his state court action for alleged violations of Texas Local
Government Code § 617.004, but no such claim was asserted in this action against either Dallas County or Evans.
Memorandum Opinion and Order - Page 42
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994)). Because Plaintiff’s pleadings as to these claims
do not set forth a violation of a constitutional or federal statutory right, no further inquiry by the
court is necessary, and Evans is entitled to judgment as a matter of law on his qualified immunity
defense to Plaintiff’s Petition Claim, to the extent based on alleged violations of Texas Government
Code § 617.005 and Dallas County Code Chapter 86. See Saucier, 533 U.S. at 201.
Moreover, Plaintiff at no time sought leave to assert state law claims for alleged violations
of Texas Government Code § 617.005 and Dallas County Code Chapter 86, and the court would not
have granted Plaintiff leave at this stage of the litigation even if leave had been sought. The deadline
for amendment of pleadings expired on April 1, 2016, and, by the time the case was reassigned to
the undersigned on April 27, 2016, the trial setting put in place by Judge Solis was quickly
approaching. Any request by Plaintiff to amend his pleadings at this juncture for adding these or
other claims, therefore, would have to be considered under Federal Rule of Civil Procedure 16(b).
Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008); S & W Enters., L.L.C. v.
Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003) (“Rule 16(b) governs amendment
of pleadings after a scheduling order deadline has expired.”). Under Rule 16(b), a scheduling order
“may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The
good cause standard requires the “party seeking relief to show that the deadlines [could not]
reasonably [have been] met despite the diligence of the party needing the extension.” S & W Enters.,
315 F.3d at 535 (citation omitted). Plaintiff has not presented any reason to show that the scheduling
order deadline for pleading amendments could not reasonably have been met despite the exercise of
diligence, and the court can reasonably infer that he knew or should have known of the facts relevant
to any such amendment long before the deadline for amendment of pleadings expired in April 2016
Memorandum Opinion and Order - Page 43
and before the parties filed their motions and supporting briefs for partial summary judgment in July
and August 2016, as Plaintiff asserted a claim for violations of Texas Local Government Code §
617.004 against Dallas County in his state court action, and the factual basis for Plaintiff’s claims
has not changed.
Further, the court has inherent authority to control its docket to ensure the efficient
administration of the cases pending before it and prevent undue delays in the disposition of pending
cases. In re Stone, 986 F.2d 898, 902 (5th Cir. 1993) (concluding that federal courts have inherent
authority “to protect the efficient and orderly administration of justice and those necessary to
command respect for the court’s orders, judgments, procedures, and authority.”); Prudhomme v.
Teneco Oil Co., 955 F.2d 390, 392 (5th Cir. 1992) (“The district court has broad discretion in the
management of its docket and the trial of lawsuits pending before it.”). Thus, there are no claims
by Plaintiff for state or local violations of law against Evans that are properly before this court, and,
even if Plaintiff had sought leave in response to Evans’s most recent summary judgment motion to
amend his pleading to assert such claims, the request for leave would have been denied because, at
some point, the litigation in this case, which has been pending for more than four and one-half years,
must come to an end. See Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253,
257-58 (5th Cir. 1997) (“District judges have the power to control their dockets by refusing to give
ineffective litigants a second chance to develop their case.”). Moreover, as previously explained,
much of the delay has been caused by Plaintiff’s “wait and see” approach and practice of presenting
theories of recovery seriatim. The court also had to address a meritless motion to recuse filed by
Plaintiff, which unnecessarily expended scarce judicial resources and delayed the resolution of this
litigation.
Memorandum Opinion and Order - Page 44
III.
Conclusion
For the reasons stated, the court concludes that Evans is entitled to qualified immunity with
respect to Plaintiff’s Petition Claim under 42 U.S.C. § 1983 against him in his individual capacity,
whether premised on retaliation in violation of the First Amendment’s Petition Clause, denial of
equal protection, or violations of state and local law; grants Defendant Derick Evans’s Motion for
Summary Judgment (Doc. 57); and dismisses with prejudice Plaintiff’s Petition Claim under 42
U.S.C. § 1983 against Evans in his individual capacity. As no further claims remain, the court will
enter judgment in favor of Defendants Dallas County and Evans by separate document pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
It is so ordered this 20th day of February, 2018.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 45
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