Martinez v. City of Dallas Texas et al
Memorandum Opinion and Order granting 15 Dismiss for Failure to State a Claim. This disposes of all of Plaintiff's claims, a separate Judgment against Plaintiff will be promptly issued. (Ordered by Chief Judge Barbara M.G. Lynn on 9/28/2017) (ams)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
CITY OF DALLAS, TEXAS, and
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim.
(ECF No. 15). For the reasons stated below, the Motion is GRANTED.
Factual and Procedural Background
Plaintiff is a police officer in the Dallas Police Department (“DPD”). On June 8, 2014,
Plaintiff arrested a citizen in the Deep Ellum area of Dallas, Texas. (Am. Compl. ¶ 8, ECF No.
14). The Internal Affairs Division of the DPD subsequently investigated Plaintiff for using
excessive force during this arrest. (Id. ¶ 16). Following the investigation and a disciplinary
hearing held on November 14, 2014, the DPD terminated Plaintiff’s employment. (Id. ¶ 38).
The Dallas City Code offers a discharged police officer the opportunity to challenge his
termination through a series of appeals. DALLAS, TEX., CODE ch. 34 §§ 37-40. An officer can
first request a hearing before the City Manager. Id. § 38(f)(4)(A)-(B). If the City Manager
affirms the termination, the officer may then request an evidentiary hearing before an
Administrative Law Judge (“ALJ”) or the Civil Service Trial Board (“Trial Board”). Id. § 40.
At this stage, the discharged officer is afforded rights akin to civil discovery, such as the
opportunity to subpoena documents and witnesses. Id. § 40(c)(5). The ALJ or Trial Board must
ultimately determine, by a preponderance of the evidence, whether the officer committed rule
violations and, if so, whether termination was the appropriate response. Id. § 40(d)(1)(A)-(B). If
the discharged officer is dissatisfied with the decision of the ALJ or Trial Board, the officer may
request a rehearing, id. § 4(f)(1), or appeal to a state district court, id. § 40(f)(2).
Following his termination from the DPD, Plaintiff timely requested a hearing with the
City Manager. (Am. Compl. ¶ 39). The City Manager affirmed the DPD, and Plaintiff then
appealed to the Trial Board. (Id. ¶ 43). In September 2015, the Trial Board reinstated the
Plaintiff’s employment, and the City of Dallas provided Plaintiff with back pay. (Id. ¶¶ 44-45).
Plaintiff instituted this action in the 162nd Judicial District, Court of Dallas County,
Texas, suing the City of Dallas and the former Chief of the DPD, David Brown1 (collectively,
“Defendants”), as Cause No. DC-16-11790. Defendants removed the action to this Court and
moved to dismiss under FED. R. CIV. P. 12(b)(6). Plaintiff then amended his Complaint and
asserted three claims: violation of procedural due process under the Fourteenth Amendment,2
wrongful termination, and inadequate back pay. (Am. Compl. ¶¶ 48-72). Defendants again
moved to dismiss all of Plaintiff’s claims.
A pleading must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The pleading standard Rule 8 announces
does not require “detailed factual allegations,” but it does demand more than an unadorned
There are inconsistencies in how Plaintiff refers to Defendant. (See Am. Compl. (referring to Defendant
as David O’Neal Brown in the caption and as David O’Neil Brown in the body of the complaint)). The
Court will refer to Defendant as David Brown to avoid confusion.
The Court construes Plaintiff’s claim as brought pursuant to 42 U.S.C. § 1983.
accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint
must contain sufficient factual matter to state a claim for relief that is plausible on its face.
Twombly, 550 U.S. at 570. The court must accept all of the plaintiff's factual allegations as true,
but it is not bound to accept as true “a legal conclusion couched as a factual
allegation.” Id. at 555. Where the facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has stopped short of showing that the pleader is
plausibly entitled to relief. Iqbal, 556 U.S. at 678.
a. Procedural Due Process Claim
The Fourteenth Amendment provides that no state may “deprive any person of life,
liberty, or property without due process of law.” U.S. CONST. amend. XIV, § 1. Plaintiff alleges
that he was denied due process under two theories: deprivation of a liberty interest in his
reputation and deprivation of a property interest in his employment. (Am. Compl. ¶ 58).
To state a claim based on the deprivation of a liberty interest in one’s reputation, a
plaintiff must show “(1) that [he] was discharged; (2) that stigmatizing charges were made
against [him] in connection with the discharge; (3) that the charges were false; (4) that [he] was
not provided notice or an opportunity to be heard prior to [his] discharge; (5) that the charges
were made public; (6) that [he] requested a hearing to clear [his] name; and (7) that the employer
refused [his] request for a hearing.” Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir.
2000). Plaintiff’s Amended Complaint does not plead facts supporting several of these requisite
elements. Plaintiff acknowledges that he was provided a hearing prior to his termination, and he
did not allege that he did not have notice or an opportunity to rebut the charges against him at
that hearing. Plaintiff also did not allege that the DPD or the City of Dallas refused any request
by him for a hearing. Therefore, Plaintiff fails to state a claim for a due process violation based
on the deprivation of a liberty interest in his reputation.
To state a claim based on the deprivation of a property interest in his employment, a
plaintiff must show that (1) he has a protected property interest in his employment, and (2) the
termination of his employment was effectuated without due process. McDonald v. City of
Corinth, Tex., 102 F .3d 152, 155 (5th Cir. 1996); Browning v. City of Odessa, Tex., 990 F.2d
842, 844 (5th Cir. 1993). Plaintiff has failed to sufficiently plead either element.
An employee has a property interest in his employment only when he has a legitimate
right to continued employment. McDonald, 102 F.3d at 155 (citing Perry v. Sindermann, 408
U.S. 593, 601–602 (1972)). A legitimate right to continued employment can be “created directly
by state statute or by a written contract, or by a ‘mutually explicit understanding’ enforceable
under state law as an implied contract.” Johnson v. Sw. Miss. Reg'l Med. Ctr., 878 F.2d 856, 858
(5th Cir. 1989) (quoting Sindermann, 408 U.S. at 601). Because employment in Texas is
generally “at-will,” terminable at any time by either party with or without cause, Plaintiff must
plead facts that would support a legitimate right to continued employment. Federal Express
Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993). Plaintiff has failed to do so.
Even if the Plaintiff had alleged a legitimate property interest in his employment as a
DPD officer, Plaintiff did not sufficiently allege that his termination was effectuated without due
process. The essential requirements of due process are notice and an opportunity to be heard.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). Plaintiff’s Amended
Complaint alleges that his pre-termination hearing with the DPD, as well as his post-termination
hearing before the City Manager, were a “farce and [did] not provide Due Process.” (Am.
Compl. ¶ 57). However, this conclusion is not supported by factual allegations, such as whether
he was given notice, the manner in which he was provided notice, whether he had an opportunity
to respond, and the manner, if any, in which he was permitted to respond.
Plaintiff pleads some objections to the internal investigation conducted by the DPD prior
to his termination, noting alleged discrepancies in the evidence and the failure of the DPD to
interview all potential witnesses.3 (Am. Compl. ¶¶ 24-29). However, these allegations are not
tied to whether and how Plaintiff was denied due process, such as whether he had an opportunity
to convey his concerns about the investigation.4 Plaintiff further alleges that Chief Brown
provided false information about the circumstances of Plaintiff’s termination to the City Council,
in the presence of the City Manager, (id. ¶¶ 39-43), and that Plaintiff was not provided notice of
Chief Brown’s meeting with the Council (which may or may not have been public or publicized),
(id. ¶ 50). These allegations do not present facts that are relevant to his hearing before the City
Manager. For all of the above reasons, Plaintiff fails to state a claim based on the deprivation of
his property interest.
Plaintiff’s due process claim is deficient in one last and critical respect. Any alleged
procedural defects with Plaintiff’s pre-termination hearing or his hearing before the City
Manager were cured when he was reinstated with back pay by the Trial Board. See Thompson v.
Plaintiff has submitted an appendix along with his response to Defendants’ motion to dismiss. (ECF
No. 21). The Court generally does not “look beyond the face of the pleadings” to determine whether
relief should be granted on a motion to dismiss under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). Extrinsic evidence may be considered “if . . . referred to in the plaintiff’s complaint
and are central to [his] claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004). The only document in the appendix referenced in Plaintiff’s Amended Complaint is the “October
30, 2014 Memorandum.” (See Amend. Compl. ¶ 36). This document describes the witness interviews
conducted during DPD’s investigation of Plaintiff, but it provides no additional information on whether
and how Plaintiff was denied due process.
The Fourteenth Amendment does not impose a “constitutional duty to provide a procedural regimen that
guarantees faultless decisionmaking.” Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc).
Bass, 616 F.2d 1259, 1266 (5th Cir. 1980) (“Because . . . the posttermination hearing panel
reinstated Thompson and awarded him back pay, we find that the constitutional inadequacy of
the pretermination proceedings was cured and that Thompson was not entitled to additional
relief”); Shearer v. Bowen, 2000 WL 729334, at *7 (5th Cir. 2000) (“[A]ny procedural infirmity
was cured by Shearer's ability to appeal her termination to the Board and its decision to reinstate
her with full pay and benefits.”); Glenn v. Newman, 614 F.2d 467, 473 (5th Cir. 1980) (“Because
any claim of pretermination due process violations was cured by the subsequent due process
hearing, the only damages to which Glenn is entitled accrued during the period between his
dismissal and the date of his post-termination hearing.”). Plaintiff cites no law that a claim based
on his hearings before reinstatement is actionable. Based on the Board reinstating him,
Plaintiff’s procedural due process claim is dismissed.
b. Wrongful Termination Claim
Plaintiff alleges that the DPD’s inadequate investigation led to his wrongful termination,
for which the City is liable, but he cites no law entitling him to relief on that basis. (Am. Compl.
¶ 70). Neither Texas statutes nor common law support such a claim for wrongful termination
where, as here, Plaintiff is an at-will employee.5 To the extent Plaintiff is proceeding on a novel
common law theory of recovery, the Texas Tort Claims Act (“TTCA”) would apply. See
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (“[TTCA] is the
only, albeit limited, avenue for common-law recovery against the government.”).
Plaintiff does not plead a waiver of governmental immunity, so the claim against the City
of Dallas must be dismissed on that basis. “Sovereign immunity protects the state and its various
Texas courts have recognized a wrongful termination claim on public policy grounds, defined only for
“discharge of an employee for the sole reason that the employee refused to perform an illegal act.”
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).
divisions, such as agencies and boards, from suit and liability, whereas governmental immunity
provides similar protection to the political subdivisions of the state, such as counties, cities, and
school districts.” Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011)
(citation omitted). Thus, to state a claim under the TTCA, there must be a valid waiver of
immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (In a suit
against a City under the TTCA, a plaintiff must “affirmatively demonstrate the court's
jurisdiction by alleging a valid waiver of immunity.”). Waivers of immunity must be based on
statute. See Garcia, 253 S.W.3d at 655 (“Because the Legislature is better suited to balance the
conflicting policy issues associated with waiving immunity, we look to pertinent legislative
enactments to determine the extent to which immunity has been voluntarily relinquished.”).
Plaintiff here concludes that the City “should not have immunity from prosecution,” but he does
not allege any waiver based on statute. (Am. Compl. ¶ 63). The pleading against the City is thus
The wrongful termination claim against Chief Brown must be dismissed for another
reason. The TTCA’s election of remedies provision provides that “[i]f a suit is filed under this
chapter against both a governmental unit and any of its employees, the employees shall be
immediately dismissed upon the filing of a motion by the governmental unit.”6 TEX. CIV. PRAC.
& REM. CODE § 101.106(e). A governmental unit is defined to include political subdivisions of
Texas, including any City. Id. § 101.001(3)(B). Plaintiff has sued both Chief Brown and the
The “apparent purpose [of this provision] was to force a plaintiff to decide at the outset whether an
employee acted independently and is thus solely liable, or acted within the general scope of his or her
employment such that the governmental unit is vicariously liable, thereby reducing the resources that the
government and its employees must use in defending redundant litigation and alternative theories of
recovery.” Garcia, 253 S.W.3d at 657.
City of Dallas for wrongful termination, and because the City has moved to dismiss the claim
against Chief Brown, the Court must do so under the TTCA.
c. Inadequate Back Pay Claim
Plaintiff received back pay upon reinstatement by the Trial Board, but he alleges that the
amount he received was inadequate. (Am. Compl. ¶ 72). Plaintiff’s claim for back pay damages
based on any due process violation is barred because he failed to exhaust the administrative
remedies available to him under the Dallas City Code. See Rathjen v. Litchfield, 878 F.2d 836,
839–40 (5th Cir. 1989) (“[N]o denial of procedural due process occurs where a person has failed
to utilize the state procedures available to him.”). He could have requested a rehearing on the
Trial Board’s order for back pay or could have appealed that to a state district court. He did not
pursue either option.
Plaintiff’s claim for back pay damages based on wrongful termination is dismissed
because, as discussed, neither Texas statutes nor common law support Plaintiff’s wrongful
For the reasons stated above, the Amended Complaint does not sufficiently plead
Plaintiff’s claims. Therefore, the Motion to Dismiss is GRANTED.
Because alleged deficiencies in Plaintiff’s hearings before reinstatement were cured when
he was reinstated with back pay, Plaintiff’s due process claim is DISMISSED WITH
PREJUDICE. Because Plaintiff failed to exhaust the administrative remedies available to him
under the Dallas City Code, his claim for back pay as a result of any alleged due process
violation is barred and DISMISSED WITH PREJUDICE. Because Plaintiff’s wrongful
termination claim is not actionable under Texas statutes or common law, the claim, and any
request for back pay associated with it, are DISMISSED WITH PREJUDICE.
This disposes of all of Plaintiff’s claims, so a separate Judgment against Plaintiff will be
September 28, 2017.
BARBARA M. G. LYNN
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