Cantu v. City of Corpus Christi, Texas

Filing 39

MEMORANDUM OPINION AND ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 22 Motion to Strike.(Signed by Judge Hayden Head) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
§
§
§
v.
§
§
CITY OF CORPUS CHRISTI, TEXAS, §
Defendant.
§

March 03, 2017
David J. Bradley, Clerk

MICHAEL CANTU,
Plaintiff,

CASE NO. 2:15-CV-71

MEMORANDUM OPINION AND ORDER
This is a civil rights action brought by Michael Cantu, formerly employed as a
deputy city marshal, against his employer the City of Corpus Christi. 42 U.S.C. § 1983.
Cantu alleges the City unlawfully terminated his employment in retaliation for his speech
against unlawful practices in the City Municipal Court. Connick v. Myers, 461 U.S. 138,
147 (1983).
The City answered Cantu’s Second Amended Complaint and filed a motion to
dismiss. Fed. R. Civ. P. 12(b)(6). The City argues that Cantu failed to adequately plead
first amendment retaliation, causation or municipal liability for his termination. The City
also filed a motion to strike portions of the Complaint. Fed. R. Civ. P. 12(f).
I. JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
II. CANTU’S ALLEGATIONS
Cantu was a deputy city marshal in the City Municipal Court in 2013. He alleged that
he engaged in several kinds of protected speech that resulted in the termination of his
employment. The Court considers the different categories of his speech separately. See

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Davis v. McKinney, 518 F.3d 304, 314 (5th Cir. 2008) (consider each communication
based upon topics and recipients).
A. Allegations of Retaliation for Civil Service Hearing Testimony
Cantu was subpoenaed to testify at a Civil Service Board hearing on August 22, 2013,
regarding the termination of another deputy city marshal, Patrick Gonzales. Before the
hearing, Interim City Marshal De La Garza allegedly approached Cantu and asked him to
testify that Gonzales had a “ghost” cell phone. Cantu declined and told De La Garza that
he had no knowledge that Gonzales had such a phone. Cantu testified at the hearing, but
not as sought by De La Garza. D.E. 16, ¶ 9. Allegedly upset the afternoon of the hearing,
De La Garza remarked to several deputy marshals, including Cantu, that “he couldn’t
believe some people would lie under oath.” The next morning, De La Garza stated that
the Civil Service hearing was on local television and things “were going to get ugly.”
The day after his testimony, Cantu advised Director Yasmin Chapman, Human
Resources, by memo that he was concerned that De La Garza would retaliate against
Cantu for his truthful testimony. Cantu copied Kimberly Jozwiak, the Director of
Municipal Court, on the memo. D.E. 16-1. Two weeks later on September 6, 2013,
Jozwiak suspended Cantu for two days without pay based upon incidents of tardiness,
absenteeism and taking leave without authorization.1

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According to the letter of reprimand, Cantu was suspended for two days without pay in part because he
clocked out early or clocked in late on 12 days for a total of 48 minutes. In addition he did not clock in at
all for three days and failed to clock out one day. Cantu was absent from work without prior authorization
three days in August 2013.
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B. Retaliation for Complaints Regarding Operations of Municipal Court to City
Management
On August 29, 2013, Cantu complained to Director Chapman by memo alleging that
the judicial division used the city marshals in ways that violated City policies and the
rights of defendants. Id., ¶ 10; D.E. 16-2.2 On September 6, 2013, Jozwiak issued a
written reprimand to Cantu based upon tardiness, absenteeism, and taking leave without
advance authorization. Id., ¶ 11.
On September 11, 2013, Cantu sent a memo addressed “To Whom it May Concern”
to City Manager Ron Olson, Assistant City Manager Margie Rose, Jozwiak, and Director
Chapman. Cantu advised them that De La Garza allegedly allowed a marshal trainee,
Roland Arias, to carry a City issued firearm, to serve warrants, and to make arrests even
though he had not yet qualified as a certified peace officer in violation of City policies
and state law. D.E. 16, ¶ 12, 16-4.
In September 2013, Cantu also reported De La Garza’s violation of policy regarding
the trainee marshal Arias to Corpus Christi Police Chief Floyd Simpson and Assistant
Chief Mike Markle. D.E. 16, ¶ 12. Cantu made an open records request on February 17,
2014, to the City for copies of the investigation into his complaints regarding De La
Garza and Arias. Three days later, Cantu received a Letter of Contemplated Disciplinary

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Cantu alleged that City marshals are required to demand payment from municipal court defendants who
have warrants pending, threaten defendants with jail, and refuse them permission to see a judge. He
alleged some defendants are handcuffed, placed into windowless holding rooms for up to six hours with
no food or water, and no cameras monitor those defendants. The Presiding Judge asked marshals how
much money they collected and why it is not more. Cantu alleged that the policy and practice of the
Judicial and Administration divisions at Municipal Court was to focus on extracting money from
defendants, even if it meant violating defendants’ rights. D.E. 16-2. Cantu also alleged that deputy
marshals accept pleas, fill out plea forms, and turn the plea forms into the clerk without the defendants
seeing a judge in open court.
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Action from Jozwiak that resulted in Cantu’s suspension for two days without pay for his
failure to supervise and his failure to provide plea forms to trainee Arias on February 10,
2014. Id., ¶ 14.
Cantu again notified City Manager Olson by email on March 20, 2014, that Jozwiak
retaliated against him because of the investigation into De La Garza’s handling of the
trainee marshals. D.E. 16-9. Cantu further alleged that De La Garza told Cantu that
Jozwiak, Assistant City Manager Rose, and City Manager Olson were trying to get
Cantu’s employment terminated. Id.
On May 7, 2014, Cantu notified Director Chapman by memo of a series of events
that he claimed resulted in retaliation against him. D.E. 16-10. On May 27, 2014, Jozwiak
issued a Contemplated Disciplinary Action as to Cantu based upon: 1) requests for
vacation leave that were later supplanted by sick leave requests for the same dates after
the original requests were denied, 2) excessive tardiness or absences, 3) absences from
duty without leave or advance notification, and 4) his prior disciplinary history in 2012,
2013, and 2014. Jozwiak fired Cantu three days later. D.E. 16-11, 16-12.
C. Retaliation for Complaints Regarding De La Garza’s use of Trainee Marshals
to the Nueces County Constable
Cantu alleges that in February 2014 he told Steven Rosas, Chief Deputy of Nueces
County Constable Precinct 1, that De La Garza permitted Reynaldo Zarate, a marshal
trainee, to perform off-duty police work for the Regional Transit Authority (RTA) even
though Zarate was not a licensed peace officer. Id., ¶ 15. Cantu advised City Manager
Olson by memo on March 6, 2014, that the Corpus Christi Police Department began an

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investigation (that Cantu alleges he assisted) into De La Garza and Zarate’s activities.3 In
the same memo, Cantu told Olson that Jozwiak retaliated against him by suspending his
outside employment. D.E. 16-8.
III.

STANDARD OF REVIEW MOTION TO DISMISS

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). A pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.”4 Fed. R. Civ. P.
8(a)(2). Although “the pleading standard Rule 8 announces does not require detailed
factual allegations,” it demands more than labels and conclusions. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)(internal quotations omitted)). ‘“A formulaic recitation of the elements of a cause
of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he ‘court
accepts all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” In Re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (5th Cir. 2007). This
Court therefore must accept Cantu’s factual allegations as true for purposes of this
motion. To survive the motion, a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.

3

Cantu alleged he “assisted” in the investigation, but in exhibit D.E. 16-8, he states that “I was a witness
to the investigation. I was interviewed by the Criminal Investigation division . . . .” Compare D.E. 16, §
15 with D.E. 16-8.

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The Second Amended Complaint is neither short nor plain. It is 17 pages long with 21 pages of exhibits.
Plaintiff’s counsel filed similar complaints in other cases.
5

“[C]ourts must consider the complaint in its entirety, as well as other sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference. . . . ” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); United States ex rel. Riley v. St. Luke’s
Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004); Myers v. Textron, Inc., 540 Fed.
App’x. 408, 409 (5th Cir. Oct. 2, 2013) (per curiam) (unpublished). When an exhibit to
the complaint contradicts the complaint, the exhibit not the allegation controls. St. Luke’s
Episcopal Hosp., 355 F.3d at 377; Rogers v. City of Yoakum, 660 Fed. App’x. 279, 285
(5th Cir. Aug. 30, 2016) (per curiam) (unpublished).
If the complaint lacks an allegation regarding a necessary element, dismissal is
appropriate. Rios v. City of Del Rio, Tex., 444 F.3d 417, 420 (5th Cir. 2006) (citing 2A
Moore’s Federal Practice ¶ 12.07 [2.-5] at 12-91). “[W]hen the allegations in a complaint,
however true, could not raise a claim of entitlement to relief, this basic deficiency should
. . . be exposed at the point of minimum expenditure of time and money by the parties
and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).
IV. ANALYSIS OF MOTION TO DISMISS
A. Standard for First Amendment Claim
The First Amendment protects a public employee’s right to speak as a citizen on
matters of public concern, with some limitations. Connick, 461 U.S. at 147; Anderson v.
Valdez, 845 F.3d 580, 592-93 (5th Cir. 2016); Williams v. Dallas Indep. Sch. Dist., 480
F.3d 689, 691 (5th Cir. 2007).

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The threshold inquiry in any § 1983 First Amendment case is “whether the plaintiff
was speaking as a citizen . . . or whether the plaintiff was speaking in furtherance of the
duties of his or her public employment.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
If a public employee speaks out as part of his job duties, execution of them, or the
advancement of them, the First Amendment affords him no protection. The First
Amendment protects only speech made as a citizen. Id. Whether the plaintiff speaks as an
employee or citizen is a question of law for the Court to determine. Graziosi v. City of
Greenville Miss., 775 F.3d 731, 736 (5th Cir. 2015) (citing Davis v. McKinney, 518 F.3d
304, 315 (5th Cir. 2008)). The “critical question” is “whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely concerns those
duties.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
B. Subpoenaed Testimony--Citizen Speech Or Employee Speech
No person should fear that he will lose his job because of truthful compelled
testimony in a judicial or administrative proceeding. See e.g. Lane, 134 S.Ct. at 2378.
Cantu alleged he was subpoenaed to give testimony at a Civil Service hearing on the
termination of a fellow deputy city marshal and that such testimony was not part of his
duties. The City argued that Cantu’s speech was pursuant to his official duties, but failed
to address the issues raised in Lane, 134 S.Ct. at 2378.
“Truthful testimony under oath by a public employee outside the scope of his ordinary
job duties is speech as a citizen for First Amendment purposes. That is so even when the
testimony relates to his public employment or concerns information learned during that
employment.” Id. “When an employee testifies before an official government

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adjudicatory or fact-finding body he speaks in a context that is inherently of public
concern.” Johnston v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir.
1989).5 The Court finds that Cantu has sufficiently alleged that his subpoenaed testimony
protects him from termination.
C. Complaints About Municipal Court—Citizen Speech Or Employee Speech
As detailed in Part II(C), supra., Cantu made numerous written complaints by email,
letter and memo to City management personnel including Director Chapman, Assistant
City Manager Rose, City Manager Olson, and the Chief and an Assistant Chief of Police
regarding the management of Municipal Court and management of the City marshals.
Many of the written complaints are exhibits to Cantu’s Second Amended Complaint.
1. Speech to City officials
Each of Cantu’s written complaints to City officials identifies Cantu as a deputy city
marshal. His complaints began on August 23, 2013, and continued on a regular basis until
May 7, 2014. His complaints were based upon information he acquired in the course and
scope of his duties that would not generally be available to private citizens.
Jozwiak terminated Cantu on May 30, 2014. The stated reasons for Cantu’s
termination were his request for sick leave (which according to Jozwiak appeared to be
medically unfounded) for dates for which he had been denied vacation leave and for his
disciplinary history.

5

Johnston testified in an EEO hearing for another employee. His supervisor retaliated by seeking to
demote him. When Johnston refused to accept a demotion, he was fired. Id. at 1568; see also Reeves v.
Claiborne Cty. Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir. 1987) (holding that testimony in civil
proceedings is protected speech); Smith v. Hightower, 693 F.2d 359, 368 (5th Cir. 1982) (“the first
amendment protects the right to testify truthfully at trial.”).
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To decide whether Cantu’s speech is employee speech or citizen speech, this Court
must examine whether the employee’s job responsibilities ordinarily require him to
engage in the speech in question, whether the speech is the kind of activity engaged in by
citizens who do not work for the government, whether the employee voiced a grievance
up the chain of command, or whether the concerns voiced were made outside of the chain
of command. See Hardesty v. Cochran, 621 Fed. App’x. 771, 776-77 (5th Cir. July 14,
2015) (listing factors). Pleadings must be examined for the same considerations, but with
less scrutiny.
Recent cases address these issues. In Gibson v. Kilpatrick, 773 F.3d 661, 671 (5th Cir.
2014), the police chief’s complaint made to outside agencies that the mayor misused a
city gasoline credit card was held to be part of Gibson’s ordinary duties and was not
protected speech. The court held that part of the police chief’s ordinary duties included
working with outside law enforcement agencies. See also Rogers v. City of Yoakum, 660
Fed. App’x. 279, 283 (5th Cir. Aug. 30, 2016) (per curiam) (unpublished) (police chief’s
report to Texas Rangers of misconduct by City Attorney held to be part of his duties and
not protected speech); Wilson v. Tegre, 787 F.3d 322, 325 (5th Cir. 2015) (deputy’s
report of potential criminal activity up the chain of command and to district attorney was
not protected by the First Amendment where the deputy was required to report any action
that he believed violated the law as part of his official duty); Hurst v. Lee Cty, Miss., 764
F.3d 480, 485 (5th Cir. 2014) (police officer who was authorized to speak to the media,
violated department policy in a media contact, but his communications were held to be

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part of his ordinary duties and not protected); but see Anderson, 845 F.3d at 598; Howell
v. Town of Ball, 827 F.3d 515, 524 (5th Cir. 2016).
In Anderson, the Fifth Circuit held that a staff attorney for an appeals court had
adequately alleged that his report of a superior’s alleged misconduct to the State
Commission on Judicial Conduct was not ordinarily within the scope of his duties and
was thus protected speech. 845 F.3d at 598-99. The attorney worked for a single justice at
the court. He complained of the conduct of a different justice to the independent state
agency that investigated all complaints of judicial misconduct. Furthermore, the
misconduct at issue involved the justice’s alleged reimbursement from both the court and
his campaign of the same travel expenses.
In Howell, a police officer performed undercover work for the FBI to assist the FBI in
uncovering fraud by the mayor and other City officials in a federal program. The court
held that his work with the FBI was not part of his ordinary duties and his speech
regarding the mayor’s malfeasance was protected by the First Amendment. Howell, 827
F.3d at 524.
Cantu’s speech was directed primarily to City management within Municipal Court or
above, such as to Human Resources and the City Manager. Cantu also allegedly reported
his concerns over De La Garza’s use of trainee marshals to the Corpus Christi Police
Chief and other senior police officers, although he does not state the form, content or
context of that report.
Cantu complained by internal email and memo regarding 1) the use of city marshals
by the judicial division of Municipal Court, 2) his dissatisfaction with operations, lunch

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hours, off-duty employment, micromanagement, and 3) policy and legal violations by De
La Garza relating to trainee marshals. All of Cantu’s complaints identify him as a deputy
city marshal. Cantu provided no factual allegations related to his ordinary duties, but he
alleged he had no duty to supervise other marshal employees and that he had no duty to
report training violations to the Corpus Christi Police Department or to the Nueces
County Constable.
Cantu’s complaints regarding working conditions are typical of employee speech and
not typical of citizen speech to City Hall. “When an employee merely voices a grievance
up the chain of command at his workplace, it is particularly likely that the employee is
speaking pursuant to his official duties.” Hardesty, 621 Fed, App’x. at 776-77; see also
Tucker v. Parish, 582 Fed. App’x. 363, (5th Cir. Sept. 16, 2014) (per curiam)
(unpublished) (report by probation officer to his superiors of internal wrong-doing was
employee speech and not protected); Davis, 518 F.3d at 313.6
The form, content and context of Cantu’s communications to City personnel fall
within the ambit of recent cases regarding employee speech. The Court finds that Cantu
has failed to plead facts that could lead the Court to plausibly conclude that his speech to
City managers and to the City police department was protected citizen speech on matters
of public concern. Garcetti, 547 U.S. at 421.

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An auditor for state university reported finding child pornography on university computers. Her reports
to the FBI regarding the child pornography were citizen speech and protected by the First Amendment.
Her complaints to the university president and her immediate superior that the university conducted an
inadequate investigation of the child pornography were not protected speech. Davis’ complaints of
excessive number of university vice presidents and the amount of their pay was protected speech because
it was clearly outside the scope of her duties. Id. at 314-16.
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2. Speech to Steven Rosas
Cantu’s alleged speech to Steven Rosas, the Chief Deputy of the Nueces County
Constable Precinct One is considered separately. Cantu alleged that he reported the
marshal trainee issue to Rosas, The pleading reads as follows:
In February 2014, Plaintiff reported to Chief Deputy Steven Rosas, Nueces
County Constable-Precinct 1, that City Marshal Michael De La Garza was
allowing Reynaldo Zarate to perform police work at an off-duty Regional
transit Authority bus stop, although Zarate was not licensed by the Texas
Commission on Law Enforcement Office Standards and Education.
Plaintiff’s report was on a matter of public concern and it was not a part of
Plaintiff’s job duties to make that report.
D.E. 16, ¶ 15. However, Rosas was also the Regional Transit Authority’s security
coordinator. D.E. 16-10. Thus it appears from the context (buried in Exhibit 16-10) that
Cantu made the report to Rosas in Rosas’ capacity as RTA’s security coordinator and not
in his capacity as the Chief Deputy for Precinct One. Moreover, Cantu’s pleadings and
exhibits reveal that Cantu also performed off-duty work for the RTA and was unhappy
when that work was disallowed. See D.E. 16, ¶ 18, D.E. 16-10. A full reading of Cantu’s
exhibit reveals that his report to Rosas was employee speech made in furtherance of
Cantu’s City employment and his personal interest in off-duty employment.
Cantu’s pleadings provide no facts regarding the circumstances or form of his report
to Rosas. The Court finds that Cantu’s allegations are insufficient to support a plausible
inference that Cantu’s report to Rosas was citizen speech on a matter of public concern.
D. Causal Connection Between Subpoenaed Testimony And Termination
The City challenged the sufficiency of Cantu’s pleading of causal connection between
his complaints and his termination. The City’s challenge is not clear whether it is limited

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to Cantu’s whistleblower claim or extends to his First Amendment claim. The Court
addresses only causation for the First Amendment violation.
To establish causation, a plaintiff must demonstrate that the decision-maker knew of
the protected actions and that the protected activity was a substantial or motivating factor
for the decision. Clark v. Cty Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (temporal
proximity alone may be sufficient if very close in time); McLaurin v. City of Jackson Fire
Dep’t., 217 Fed. App’x. 287, 288 (5th Cir. Dec. 19, 2006) (per curiam) (unpublished).
“Close timing between an employee’s protected activity and an adverse action against
him may provide the ‘causal connection’ required to make out a prima facie case of
retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)
(emphasis omitted).
By copying Jozwiak on a memo to Director Chapman, Cantu informed Jozwiak that
he testified at the Civil Service hearing and was concerned about retaliation on August
23, 2013.7 This Court found that Cantu sufficiently alleged that his subpoenaed testimony
qualified as protected speech. That same memo alleged that De La Garza saw the hearing
testimony on local television. The Court may plausibly infer that Jozwiak also saw the
hearing on television and learned the content of Cantu’s testimony.
Cantu pleaded a series of events, including two suspensions without pay, between his
testimony on August 22, 2013, and his employment termination nine months later on

7

Cantu’s letter to Director Chapman, on which Jozwiak was copied, outlined De La Garza’s comments
before and after the hearing. Cantu requested an HR investigation and temporary transfer.
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May 30, 3014. One of those suspensions occurred two weeks after Cantu’s testimony. 8
Cantu also engaged in a number of other activities that may have resulted in his
termination. Because the Court considers only the sufficiency of the pleadings at this
time, the Court finds that Cantu has alleged a series of events that may plausibly connect
his speech and his termination.
E. Municipal Liability
Plaintiff alleged that his employment was terminated by Jozwiak as part of a custom or
practice of the City. The City challenged Cantu’s pleading of municipal liability as
insufficient. If Cantu failed to sufficiently allege municipal liability this Court should
dismiss his suit.
1. .Standard for municipal liability
“[A] local government may not be sued under § 1983 for an injury inflicted solely by
its employees or agents.” Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S.
658, 694 (1978). “Instead, it is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” Id. Monell teaches that municipal liability under § 1983 requires proof of
three elements: 1) a policymaker;9 2) an official policy;10 and 3) a violation of

8

Cantu was suspended for two days without pay and reprimanded for tardiness and absenteeism on
September 6, 2013. On February 21, 2014, Cantu was reprimanded and suspended for two days for his
failure to supervise a marshal trainee.

9

A policymaker is “one who takes the place of the governing body in a designated area of city
administration.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). The policymaker “must
‘decide the goals for a particular city function and devise the means of achieving those goals.’” Zarnow v.
City of Wichita Falls, Tex, 614 F.3d 161,167 (5th Cir. 2010) (quoting Bennett v. City of Slidell, 728 F.2d
762, 769 (5th Cir. 1984)).
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constitutional rights whose ‘moving force’ is the policy or custom. Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. 658).
The identity of the final policymaker is a question of state and local law. See Jett v.
Dallas Indep. Sch. Dist. (Jett I), 491 U.S. 701, 737 (1989); Pembaur, 475 U.S. at 483.
The court must identify those officials or governmental bodies who speak with final
policymaking authority for the local governmental actor concerning the action alleged to
have caused the constitutional or statutory violation at issue. Jett v. Dallas Indep. Sch.
Dist. (Jett II), 7 F.3d 1241, 1244 (5th Cir. 1993).
The City of Corpus Christi Charter designates the City Council as the final policymaking body for the City, “[A]ll powers of the city shall be vested in an elective council,
hereinafter referred to as the ‘the council,’ which shall enact local legislation, determine
policies, appoint the city manager, and which council and city manager shall execute the
laws and administer the government of the city.” Art. 1, § 3 (emphasis added).11
A plaintiff may prove the existence of a “custom or policy” in one of two ways: 1) “a
pattern of unconstitutional conduct may be shown on the part of municipal actors or
employees,” or 2) “it may be shown that a final policymaker took a single
unconstitutional action.” Zarnow, 614 F.3d at 169. A custom or policy consists of actions
that have occurred for so long and with such frequency that the course of conduct

10

A municipal policy must be a deliberate and conscious choice by a municipal policy-maker. City of
Canton v. Harris, 489 U.S. 378, 389(1989); Pembauer v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(plurality).

11

http://www.cctexas.com/government/city-secretary/city-charter/index. “This charter shall be deemed a
public act, may be read in evidence without pleading or proof, and judicial notice shall be taken thereof in
all courts and places.” Id., Art. X, § 14.
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demonstrates the governing body’s knowledge and acceptance of the disputed conduct.
Id. (citing Webster, 735 F.2d at 842).
A pattern of conduct requires similarity and specificity; “[p]rior indications cannot
simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific
violation in question.” Peterson v. City of Fort Worth, 588 F.3d 838, 851-52 (5th Cir.
2009) (quoting Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d
375, 383 (5th Cir. 2005)). In addition, a pattern may be demonstrated by sufficiently
numerous prior incidents, but isolated instances are inadequate to prove knowledge and
acquiescence by policymakers. Garrett v. City of Houston, 102 Fed. App’x. 863, 865 (5th
Cir. June 28, 2004) (per curiam) (unpublished); McConney v. City of Houston, 863 F.2d
1180, 1184 (5th Cir. 1989).
2. Cantu’s pleading regarding municipal custom
Cantu does not allege that Jozwiak is a policymaker. He instead alleged that “The
policy, practice, procedure and custom of the City was identified and pursued through
Director Jozwiak, Judge Flores, and City Manager Olson in terminating Plaintiff’s
employment . . . .” D.E. 16, § 21. Cantu alleged that Municipal Court employees are fired
for refusing to violate the law, refusing to provide false testimony, and the City has a
custom of retaliating against employees for their protected speech. Id., ¶ 25. He further
alleged that it was the City’s policy, practice, procedure and custom to “jointly fil[e] false
charges and mak[e] false criminal allegations against Municipal Court employees to
deprive said employees of their liberty and/or property interest in their employment.” Id.

16

Cantu lists seven lawsuits filed against the City by municipal court employees between
2012 and 2015 as evidence of custom or unofficial policy. Id., ¶ 22.12 He also identified
resignations and terminations that add 17 others. Cantu’s listed terminations and
resignations include no significant information from which this Court can determine any
similarity to the lawsuits or to Cantu’s allegations.
On summary judgment in Peterson, 588 F.3d at 851-52, the court held that 27
incidents of alleged excessive force over a three year period was insufficient to raise a
fact issue on the existence of an unofficial policy of tolerating excessive force by Fort
Worth police officers. The court held that without a statistical analysis that related the
number of complaints to the number of officers, the number of arrests, and the incidents
of crime, the number of complaints alone was insufficient. Under the Peterson standard,
Cantu has not provided any context for his claims that the seven lawsuits represent a
pattern of unconstitutional conduct.
Cantu has not sufficiently alleged facts to show an unofficial policy of retaliating
against City employees for engaging in protected speech that is a ‘“persistent, widespread
practice of city officials or employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well settled as to constitute a custom
that fairly represents municipal policy.” Zarnow, 614 F.3d at 169. As a result, even
though Cantu’s pleading of a First Amendment violation for his subpoenaed speech is
sufficient, he has not alleged a basis for municipal liability. See Van Eschen v. League
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Of the seven suits listed by Cantu, only one has gone to a jury and there was no finding
regarding policy-maker. Several cases have settled and some remain pending. Nothing in the
litigation Cantu cites has resulted in any judicial finding that the City’s custom (as alleged by
Cantu) constituted an unofficial policy or custom.
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City, Tex., 233 F.3d 575, 2000 WL 1468838 (5th Cir. Sept. 8, 2000) (per curiam) (Table)
(affirming Rule 12(b)(6) dismissal for failure to adequately plead municipal liability
regarding custom). As a result, the City’s motion to dismiss should be granted.
V. CONCLUSION
The City’s motion to dismiss (D.E. 20) is GRANTED. The Court also GRANTS
the City’s Motion to Strike (D.E. 22) on the grounds that the challenged paragraphs relate
to events irrelevant to this litigation.
ORDERED this 1st day of March, 2017.

________________________________
HAYDEN HEAD
SENIOR U.S. DISTRICT JUDGE

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