Gehring v. Harris County, Texas et al

Filing 28

OPINION AND ORDER of DISMISSAL granting 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
VS.
§
§
HARRIS COUNTY, TEXAS, HARRIS
§
COUNTY CONSTABLE, PRECINCT ONE §
CONSTABLE ALAN ROSEN, ASSISTANT§
CHIEF DONATO “SONNY” COLUNGA, §
CHIEF DEPUTY KEVIN MAPLES, and §
CAPTAIN CARL SHAW,
§
§
Defendants.
§

January 21, 2016
David J. Bradley, Clerk

DEPUTY THOMAS GEHRING,

Civ. A. H-15-0726

OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced cause,
removed from state court and alleging wrongful demotion and
transfer

as

disciplinary

actions,

accompanied

by

inadequate

investigations and other due process violations, purportedly in
violation of 42 U.S.C. § 1983, the Fourth, Fifth, Fourteenth and
Fifteenth Amendments of the United States Constitution, and of
Texas Government Code §§ 614.022 and 614.0231 and of Texas Local

1

Section 614.023 states,

(a) A copy of a signed complaint against a
law enforcement officer . . . employed by a
political subdivision of this state shall be
given to the officer . . . within a
reasonable time after the complaint is filed.
(b) Disciplinary action may not be taken
against the officer or employee unless a copy
of the signed complaint is given to the
officer or employee.
(c) In addition to the requirement of
Subsection (b), the officer or employee may
not be indefinitely suspended or terminated
from employment based on the subject matter
of the complaint unless:
-1-

Government Code § 143.127 (Grievance Procedure for municipalities
and their fire fighters and police officers), is Defendants Harris
County, Texas, Harris County Constable Precinct One, Constable
Alan Rosen, Assistant Chief Donato “Sonny” Colunga, Captain Carl
Shaw, and Chief Deputy Kevin Maples’ motion to dismiss under
Federal Rule of Procedure 12(b)(6) and Texas Civil Practices &
Remedies Code § 101.106(e)2 (instrument #3).
Allegations of Plaintiff’s Original Petition (#101)
Plaintiff Deputy Constable Thomas Gehring (“Plaintiff”
or “Gehring”) worked as a certified police officer with the Harris
County Constable Precinct One for twenty-two years, since January
23, 1993.
demoted

On June 28, 2013 he was informed that he had been

based

on

three

instances

of

alleged

misconduct

and

violations of sections 1.31, 1.32, 1.34, 1.36 of the Harris County

(1) the complaint is investigated; and
(2) there is evidence to
allegation of misconduct.
2

prove

the

In the election of remedies scheme provided by the
Texas Tort Claims Act, pursuant to Tex. Civ. Prac. & Rem. Code §
101.106(a), “the filing of a suit under this chapter against a
governmental unit constitutes an irrevocable election by the
plaintiff and immediately and forever bars any suit or recovery by
the plaintiff against any individual employee of the government
unit regarding the same subject matter.”
Section 101.106(e)
states, “If a suit is filed under this chapter [the Texas Tort
Claims Act] against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the
filing of a motion by the governmental entity.”
Under this
provision, a plaintiff must make an “irrevocable” election and
must choose either the governmental unit or its employees to sue.
Reyes v. Bridgwater, 362 Fed. Appx. 403, 411 (5th Cir. Jan. 22,
2010), citing Mission Consolidated School Dist. v. Garcia, 253
S.W. 3d 653, 657 (Tex. 2008). It does not matter whether the
Texas Tort Claims Act allows the claim or not. Id., citing Garcia
at 658-59.
-2-

Precinct One Policy and Ethics Manual (the “Manual”),3 which
accusations Gehring insists are false.

The first occurred on

March 14, 2012, when he was stationed in the lobby of the Harris
County Criminal Justice Center, when an iPhone was stolen from a
belt scanner.

Harris County Constable Precinct One claims that

Gehring improperly arrested a suspect in violation of Subsection
1.33 Performance of Duty of the Manual, which did not exist at the
time of the arrest, when Gehring made him kneel to prevent his
escape

and

the

suspect

injured

his

knee.

Gehring

was

not

disciplined.
On March 26, 2013, Harris County Facilities & Property
Management employees found a male cutting his hair in the bathroom
at 1001 Preston, Houston, Texas 77002.

When confronted, the man

became hostile and loudly argumentative, so the employees ordered
him to leave.

The employees followed the man, who continued to

exhibit the same behavior.
Jue

and

Reyna

of

the

They called the police, and Deputies

Harris

County

responded, arrested, and handcuffed him.

Constable

Precinct

One

Gehring arrived on the

scene only after the arrest, which Gehring did not witness, but
when asked if the officers could take the man to jail, Gehring
responded, “yes.”

On April 1, 2013 a complaint was made against

the arresting deputies including Gehring, but Ghering was not
informed about it.

No investigation was made, nor was Gehring

given notice, granted a hearing, or presented with a copy of the
complaint, signed or unsigned.

3

A copy of the Manual is found at #6-1.
-3-

In the third incident on April 22, 2012, Gehring was
patrolling when a security guard informed him that an injured man
had fallen in the lobby of the Harris County Criminal Justice
Center.

Gehring told the injured man that EMS was on the way and

that he needed to stay to determine what caused him to fall, but
the man insisted on leaving and that he did not need medical
treatment.

A complaint, which Gehring claims was false, was

subsequently made that Gehring had persuaded the man to refuse
medical training. No investigation was made, Harris County failed
to obtain security footage from the lobby where the man fell, and
Gehring was never given notice or a hearing, nor was he given a
copy of the complaint, signed or not.
On or about May 14, 2013, Captain Carl Shaw asked
Gehring to write up the three incidents.

Gehring asked Assistant

Chief Donato Colunga if there was a complaint against him and was
told there was not. When he asked Captain Shaw the same question,
Gehring was told not to worry.

Then on or about June 27, 2013

Gehring received a letter informing him of his disciplinary
probation and demotion.

It stated that Gehring had been accused

of violating General Orders in the Manual:
Professional

Conduct

Required;

132

Conduct

Subsection 1.31
Prohibited;

1.34

Performance of Duty; and 1.36 Supervisory Responsibility.

The

Manual was only issued to all personnel on May 15, 2013, long
after the three alleged incidents took place on March 14, 2013,
March 16, 2013, and April 22, 2013 and when Gehring knew and could
have known nothing of these yet-to-be-issued policies.

Gehring

now sues for violation of the Fourth and Fifteenth Amendments of
-4-

the federal Constitution, identified later in the Petition as the
due process clause of the Fifth and Fourteenth Amendments, for
Defendants’ failure to provide him with notice and a hearing where
he could confront his accusers and question witnesses regarding
his alleged wrongful demotion and wrongful employment practices,
violation of Texas Government Code § 614.0224 and 614.0235 because
he was not given a copy of any of the complaints against him and
disciplinary actions were taken against him, violation of the
Texas Local Government Code § 143.127 (the Grievance Procedure),6
and violation of 42 U.S.C. § 1983.

He further complains that

Constable Rosen, Assistant Chief Colunga, Chief Deputy Maples, and

4

Section 614.022 (“Complaint to Be in Writing and
Signed by Complainant”) provides,
To be considered by the head of a state
agency or . . . local law enforcement agency,
the complaint must be
(1) in writing; and
(2) signed by the
complaint.

person

making

the

5

Section 614.023 (“Copy of a Complaint to Be Given to
Officer or Employee”) provides in relevant part,
(a) A copy of a signed complaint against a
law enforcement officer of this state . . .
or employed by a political subdivision of
this state shall be given to the officer or
employee within a reasonable time after the
complaint is filed.
(b) Disciplinary action may not be taken
against the officer or employee unless a copy
of the signed complaint is given to the
officer or employee.
6

Defendants correctly point out that by its own terms
this provision applies only to municipalities and their fire
fighters and police officers, not to the Harris County Constable’s
Office.
-5-

Captain Carl Shaw committed the alleged acts within the scope of
their employment and therefore Harris County and Harris County
Constable Precinct One are liable for the actions of their
employees under the doctrine of respondeat superior. He claims
that the four men would be liable if they were private persons.
They and Harris County and Harris County Constable Precinct One
are not immune from suit because their actions violated § 1983 and
the

Fourth

and

Fifteenth

Amendments

of

the

United

States

Constitution and Section 19 of the Texas Constitution, which
allows governmental entities to be sued for civil wrongs.
Relevant Law
Procedural Rules
When a district court reviews a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the
complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).

The plaintiff’s legal conclusions are not

entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S.
662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.
Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s

obligation

to

provide
-6-

the

‘grounds’

of

his

‘entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”

Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955, 1964-65 (2007)(citations omitted).

“Factual

allegations must be enough to raise a right to relief above the
speculative level.”

Id. at 1965, citing 5 C. Wright & A. Miller,

Federal Practice and Procedure

§ 1216, pp. 235-236 (3d ed.

2004)(“[T]he pleading must contain something more . . . than . .
.

a statement of facts that merely creates a suspicion [of] a

legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”], and instead required that a complaint
allege enough facts to state a claim that is plausible on its
face.”

St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.

2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim to relief
that is plausible on its face.’”), citing Twombly, 127 S. Ct. at
1974). “‘A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”

Montoya v.

FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The

plausibility standard is not akin to a “probability requirement,”
-7-

but asks for more than a “possibility that a defendant has acted
unlawfully.”

Twombly, 550 U.S. at 556.

Dismissal is appropriate

when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.

Iqbal, 129 S. Ct. at

The plaintiff must plead specific facts, not merely

conclusory allegations, to avoid dismissal.

Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief . . . .“

Rios v. City

of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied,
549 U.S. 825 (2006).
When a plaintiff’s complaint fails to state a claim, the
court should generally give the plaintiff at least one chance to
amend the complaint under Rule 15(a) before dismissing the action
with prejudice.

Great Plains Trust Co v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts
often afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear that the
-8-

defects are incurable or the plaintiffs advise the court that they
are unwilling or unable to amend in a manner that will avoid
dismissal.”); United States ex rel. Adrian v. Regents of the Univ.
of Cal., 363 F.3d 398, 403 (5th Cir. 2004)(“Leave to amend should
be freely given, and outright refusal to grant leave to amend
without

a

justification

.

.

.

is

considered

an

abuse

of

discretion. [citations omitted]”). The court should deny leave to
amend if it determines that “the proposed change clearly is
frivolous

or

advances

a

claim

or

insufficient on its face . . . .”

defense

that

is

legally

6 Charles A. Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed.
1990).
Title 42 U.S.C. § 1983 does not grant substantive
rights, but provides a vehicle for a plaintiff to vindicate rights
protected by the United States Constitution and other federal
laws.

Albright v. Oliver, 510 U.S. 266, 271 (1994).

It provides

a cause of action for individuals who have been “depriv[ed] of
[their]

rights,

privileges,

or

immunities

secured

by

the

Constitution and laws” of the United States by a person acting
under color of state law.

Id.

Section 1983 “is a tort statute

and . . . ‘[a] tort to be actionable requires injury,’ which, in
this context, is the deprivation of a constitutional right.”
Keenan v. Tejeda, 290 F.3d 252, 259 (5th Cir. 2002), citing Bart
v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Substantive Law
The

Fourteenth

Amendment

protects

citizens

from

government actions that “deprive any person of life, liberty, or
-9-

property, without due process of law.”
1.

U.S. Const. amend. XIV, §

To warrant due process, i.e., notice and a hearing, regarding

an adverse employment decision, a public employee must have a
liberty or property interest in his job.
The meaning of “liberty” is very broad: it not only
includes “the right of the individual to contract, to engage in
any of the common occupations of life. . . and generally to enjoy
those privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men,” but “‘[w]here a person’s good
name, reputation, honor, or integrity is at stake because of what
the government is doing to him, notice and an opportunity to be
heard are essential.’”

Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 572, 573 (1972), quoting Meyer v. Nebraska,
262 U,S. 390, 399 (1923), and Wisconsin v. Constantineau, 400 U.S.
433

(1971).

Nevertheless,

“[i]t

stretches

the

concept

[of

liberty] too far to suggest that a person deprived of ‘liberty’
when he simply is not rehired in one job but remains as free as
before to seek another.”

Id. at 575, citing Cafeteria and

Restaurant Workers union, Local 473, AFL-CIO v. McElroy, 367 U.S.
886, 895 (1961).

In Roth, an assistant professor at a state

university who did not have tenure was told he would not be
rehired after his first academic year. Finding that the professor
did not warrant a hearing in part because he had no liberty
interest in reemployment because the State “did not make any
charge against him that might seriously damage his standing and
associations in his community,”, the Supreme Court opined,

-10-

[T]here is no suggestion that the State, in
declining to re-employ the responded, imposed
on him a stigma or other disability that
foreclosed his freedom to take advantage of
other employment opportunities. The State,
for example, did not invoke any regulations
to bar the respondent from all other public
employment in state universities.
Had it
done so, this would be a different case. For
“[t]o be deprived not only of present
government
employment
but
of
future
opportunity for it certainly is no small
injury . . . .”
Roth, 408 U.S. at 573-74.
Alternatively public employees may have a property
interest in their jobs, protected by the Due Process Clause:

“if

under state law a state employee is granted a claim of entitlement
to continued employment absent sufficient cause for discharge,
that state employee has been granted a property interest that
demands the procedural protections of due process.”
Andrus, 419 F.3d 348, 353 (5th Cir. 2005).

Woodard v.

See also Muncy v. City

of Dallas, Texas, 335 F.3d 394, 398 (5th Cir. 2003)(“[W]e have
recognized that a property interest is created where the public
entity

has

acted

to

confer,

or

alternatively,

has

created

conditions which infer, the existence of a property interest by
abrogating its right to terminate an employee without cause. This
abrogation may take the form of a statute, rule, handbook, or
policy which limits the condition under which the employment may
be

terminated

.

.

.

or

it

may

take

the

form

particularized understanding with the employee.”).
law,

at-will-employment

is

presumed

unless

the

of

a

more

Under Texas
relationship

between employer and employee has been expressly altered by
contract or by rules or policies limiting the conditions under
-11-

which an employee may be terminated. See, e.g., Hicks v. Baylor
Medical Center, 789 S.W. 2d 299 (Tex. App.--Dallas, 1990, writ
denied); Gentilello v. Rege, 627 F.3d 540 (5th Cir. 2010)

Ezell

v. Wells, No. 2:15-CV-00083-J, 2015 WL 4191751, at *8-9 (N.D. Tex.
July 10, 2015)(To survive a motion to dismiss, a plaintiff must
“allege the precise source of this alleged property interest,”
“allege the existence of a contract or employee handbook that
negates

the

at-will

presumption,”

or

“any

Texas

statute,

ordinance, or case that might create such a property interest.”)
Municipalities and other bodies of local government,
which include counties, are “persons” within the meaning of §
1983.

Monell v. Department of Social Services, 436 U.S. 658, 690

(1978); Hampton Co. Nat. Sur., LLC v. Tunica County, Miss., 543
F.3d 221. 224 (5th Cir. 2008).

“A municipality cannot be held

liable solely because it employs a tortfeasor--or, in other words,
a municipality cannot be held liable under § 1983 on a respondeat
superior theory.”

Monell, 436 U.S. at 691. A municipality may be

liable under § 1983 if the execution of one of its customs or
policies deprives a plaintiff of his constitutional rights.
Monell, 436 U.S. at 690-91.
To state a claim for municipal liability under § 1983,
a plaintiff must identify (a) a policy maker, (b) an official
policy [or custom or widespread practice], and (c) a violation of
constitutional rights whose “moving force” is the policy or
custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.
2001)(a plaintiff must show that the unconstitutional conduct is
attributable to the municipality through some official custom or
-12-

policy that is the “moving force” behind the constitutional
violation)(citing Monell, 436 U.S. at 694), cert. denied, 534 U.S.
820 (2001).
purposes

of

The Fifth Circuit has defined an official policy for
§

1983

as

“‘[a]

policy

statement,

ordinance,

regulation or decision that is officially adopted and promulgated
by the municipality’s law-making officials or by an official to
whom the lawmakers have delegated policy-making authority.’” Okon
v. Harris County Hospital District, 426 Fed. Appx. 312, 316 (5th
Cir. May 23, 2011), quoting Bennett v. City of Slidell, 735 F.2d
861, 862 (5th Cir. 1984)(en banc), cert. denied, 472 U.S. 1016
(1985).7 Alternatively, a policy may be “‘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.’”

Id., citing id., and Zarnow v.

City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010)(“A pattern
of conduct is necessary only when the municipal actors are not
policymakers”)[,

cert.

denied,

131

S.

Ct.

3059

(2011)].

“Allegations of an isolated incident are not sufficient to show

7

When a policymaker commits the act at issue, that act
may establish the policy if the policymaker must be “unconstrained
by policies imposed from a higher authority.”
Okon, 426 Fed.
Appx. at 316, citing Hampton Co. v. Nat’l Sur. LLC v. Tunica
County, 543 F.2d 221, 227 (5 th Cir. 2008). In such a case the
court must determine which official or government body has final
policymaking authority for the local government unit regarding the
action in dispute. Id.
Under Texas law a constable of a Texas county precinct
is not a policy-maker in the area of law enforcement. Keenan v.
Tejeda, 290 F.3d 252, 263 (5th Cir. 2002), citing Rhode v. Denson,
776 F.2d 107, 108-10 (5th Cir. 1985)(elected constable of Texas
county did not occupy a policy-making position so as to expose the
county to civil rights liability for his unconstitutional acts).
-13-

the

existence

of

a

custom

or

policy.”

Fraire

Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).

v.

City

of

“The governing

body of the municipality or an official to whom that body has
delegated policy-making authority must have actual or constructive
knowledge of such a custom.”

Okon, 426 Fed. Appx. at 316, citing

Bennett, 735 F.2d at 862. “‘Actual knowledge may be shown by such
means as discussions at council meetings or receipt of written
information,’” while “constructive knowledge ‘may be attributed to
the governing body on the ground that it would have known of the
violations if it had properly exercised its responsibilities, as,
for

example,

widespread

where

that

the

they

violations

were

the

were

subject

so
of

persistent
prolonged

discussion or of a high degree of publicity.’”

and

public

Id., citing

Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984)(en
banc),

cert.

denied,

472

U.S.

1016

(1985).

“Deliberate

indifference” is a “stringent standard, requiring proof that a
municipal actor disregarded a known or obvious consequence of his
action,” for which “[a] showing of simple or even heightened
negligence will not suffice”; it requires a plaintiff to show that
“‘in the light of the duties assigned to specific officers or
employees the need for more or different training is so obvious,
and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need.’”

Valle v. City of Houston, 613 F.3d 536, 547 (5th Cir.

2010)(quoting City of Canton, 489 U.S. at 390), cert. denied, 131
S. Ct. 2094 (2011).

“Usually a plaintiff must show a pattern of
-14-

similar violations, and in the case of an excessive force claim .
. . the prior act must have involved injury to a third party.”
Id.; Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir. 1959).
“[A]

single

incident

of

an

alleged

constitutional

violation

resulting from the policy may serve as a basis for liability so
long as that violation was an obvious consequence of the policy.
. . . [A] pattern of misconduct is not required to establish
obviousness

or

notice

to

the

consequences of his decision.”

policymaker

of

the

likely

Brown v. Bryan County, OK., 219

F.3d 450, 460 (5th Cir. 2000), citing City of Canton, 489 U.S. at
396 (“Where a section 1983 plaintiff can establish that the facts
available to city policymakers put them on actual or constructive
notice that the particular omission is substantially certain to
result

in

the

violation

of

constitutional

rights

of

their

citizens, the dictates of Monell are satisfied.”).
A municipality or local governmental entity cannot be
liable under § 1983 on a theory of respondeat superior; it can
only be liable for acts that are directly attributable to it
through some official action or imprimatur.

James v. Harris

County, 577 F.3d 612, 617 (5th Cir. 2009), cert. denied, 558 U.S.
1114 (2010).
the plaintiff

As noted, it can only be held liable under § 1983 if
proves a constitutional violation and an official

policy promulgated by the municipality’s policymaker that was the
moving force behind or the actual cause of the unconstitutional
injury.

Id., citing Monell, 436 U.S. at 694, and Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

The official

policy must either be unconstitutional or have been adopted “with
-15-

deliberate indifference to the known or obvious fact that such
constitutional violations would result.”

Id., citing Johnson v.

Deep East Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d
293, 309 (5th Cir. 2004), and Piotrowski, 237 F.3d at 579.
A suit against an individual in his official capacity is
treated as a suit against the governmental entity of which the
individual is an agent, an employee, official or a representative.
Wilson v. Dallas County, Civil Action No. 3:11-CV-879-L, 2014 WL
4261951, at *6 (N.D. Tex. Aug. 29, 2014), citing Hafer v. Melo,
502 U.S. 21, 25 (1991). Thus claims against the deputy constables
in their official capacities are treated as claims against Harris
County.
Qualified
protects

government

immunity,

officials

in

an

affirmative

their

personal

defense,
capacity

performing discretionary functions not only from suit, but from
“liability for civil damages insofar as 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); Pearson v. Callahan, 555
U.S. 223,

, 129 S. Ct. 808, 815 (2009).

Thus the Court

examines whether the “officer’s conduct violated a constitutional
right,” and “whether the right was clearly established” at the
time of the conduct.

Saucier v. Katz, 533 U.S. 194, 201 (2001).

Either prong may be addressed first.

Pearson, 129 S. Ct. at 808.

A right is clearly established when “the contours of the right
[are] sufficiently clear [such] that a reasonable official would
understand that what he is doing violated that right.” Werneck v.
-16-

Garcia, 591 F.2d 386, 392 (5th Cir. 2009)(citations omitted).

See

also Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)(the court
applies an objective standard “based on the viewpoint of a
reasonable official in light of the information available to the
defendant and the law that was clearly established at the time of
defendant’s

actions.”).

To

be

clearly

established,

“‘[t]he

contours of the right must be sufficiently clear that a reasonable
official would understand what he is doing violates that right.’”
Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004), quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The ‘clearly
established’ standard does not mean that official’s conduct is
protected

by

qualified

immunity

unless

‘the

very

action

in

question has previously been held unlawful.’” Id. at 350, quoting
Anderson,

483

U.S.

at

640.

“Where

no

controlling

authority

specifically prohibits a defendant’s conduct, and when the federal
circuit courts are split on the issue, the law cannot be said to
be clearly established.” Morgan v. Swanson, 659 F.3d 359, 372 (5th
Cir. 2011), cert. denied, 132 S. Ct. 2740 (2012).

Officials who

act reasonably but mistakenly are entitled to qualified immunity;
the defense protects all government employees but “the plainly
incompetent or those who knowingly violate the law.”

Anderson,

483 U.S. at 641; Malley v. Briggs, 475 U.S. 335, 341 (1986).

“[A]

defendant’s acts are held to be objectively reasonable unless all
reasonable officials in the defendant’s circumstances would have
then known that the defendant’s conduct violated the United States
Constitution or the federal statute as alleged by the plaintiff.”
Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir.
-17-

2001).

The officer is “entitled to qualified immunity if his or

her conduct was objectively reasonable in light of the legal rules
that were clearly established at the time of his or her actions,”
even if the conduct violated the plaintiff’s constitutional right.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)(en
banc).
Although qualified immunity is an affirmative defense,
“plaintiff has the burden to negate the assertion of qualified
immunity once properly raised.”

Collier v. Montgomery, 569 F.3d

214, 217 (5th Cir. 2009).

To meet this burden the plaintiff must

allege

that

facts

showing

the

defendants

committed

a

constitutional violation under the current law and that the
defendants’ actions were objectively unreasonable in light of the
law that was clearly established at the time of the actions
complained of.

Atteberry v. Nocona General Hosp., 430 F.3d 245,

253 (5th Cir. 2005).
In Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985),
the Fifth Circuit held that when defendant-official raises a
qualified

immunity

defense

in

his

individual

capacity,

a

heightened pleading standard must be met by the plaintiff to show
with factual detail and particularity why the defendant official
cannot maintain the qualified immunity defense.

In Schultea v.

wood, 47 F.3d 1427, 1429-34 (5th Cir. 1995)(en banc), discussing
development of qualified immunity defense and pleading rules, the
Fifth Circuit further opined, “When a public official pleads the
affirmative defense of qualified immunity in his answer, the
district court may, on the official’s motion or its own, require
-18-

the plaintiff to reply to that defense in detail.

By definition,

the reply must be tailored to the assertion of qualified immunity
and fairly engage its allegations.

A defendant has an incentive

to plead his defense with some particularity because it has the
practical effect of requiring particularity in the reply.”

See

also Floyd v. City of Kenner, La., 351 Fed. App’x 890, 893 & n.2
(5th Cir. 2009).
In Morgan v. Hubert, 335 Fed. Appx. 466, 472-73 (5th Cir.
2009), the Fifth Circuit reviewed Schultea’s standard (requiring
plaintiff to support a “claim with sufficient precision and
factual specificity to raise a genuine issue as to the illegality
of defendant’s contact at the time of the alleged acts”).
panel

pointed

heightened

to

the

pleading

reasoning

standard

in

in
the

Schultea
face

of

in
a

The

requiring

a

defendant’s

assertion of qualified immunity:
We did not ground any such requirement in
Rule 9(b), but nevertheless required a
plaintiff to plead more than conclusions.
Specifically, we reasoned that “a plaintiff
cannot be allowed to rest on general
characterizations, but must speak to the
factual particulars of the alleged actions,
at least when those facts are known to the
plaintiff and are not peculiarly within the
knowledge of defendants [emphasis added by
Morgan
panel].”
“Heightened
pleading
requires
allegations
of
fact
focusing
specifically on the conduct of the individual
who caused the plaintiffs’ injury.” Reyes v.
Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
Morgan, 335 Fed. Appx. at 469-70, citing Schultea, 47 F.3d at
1432-34.
A denial of qualified immunity at the motion to dismiss
stage, to the extent that it turns on a matter of law, is an
-19-

appealable final decision under 28 U.S.C. § 1291 because qualified
immunity is immunity from suit and, necessarily, shields the
official from the burdens of discovery. Ashcroft v. Iqbal, 129 S.
Ct. at 1946.; Porter v. Valdez, 424 Fed. App’x 382, 385 (5th Cir.
2011), citing Hill v. City of Seven Points, No. 00-41436, 2002 WL
243261, *4 (5th Cir. Jan. 17, 2002)(“Such appellate review is
premised upon the reality that, in some instances, if an order is
not

reviewed

before

the

issuance

of

a

final

judgment,

the

practicality of reviewing that order is lost.”).
The State of Texas has sovereign immunity and its
municipalities

and

political

subdivisions

have

governmental

immunity except where the Legislature waived that immunity in the
TTCA.

Humphreys v. City of Ganado, Texas, 467 Fed. Appx. 252, 256

(5th Cir. Mar. 26, 2012), citing Tex. Civ. Prac. & Rem. Code §
101.021, and Reata Constr. Corp. v. City of Dallas, 197 S.W. 3d
371, 374-76 (Tex. 2006).

The terms “sovereign immunity” and

“governmental immunity” are not synonymous; “sovereign immunity
relates to the State of Texas’ immunity from suit and liability,”
while “governmental immunity” protects cities, counties, school
districts

and

other

political

subdivisions

from

suit

and

liability. Cunningham v. City of Balch Springs, No. 3:14-CV-59-L,
2014 WL 4851576, at *6 fn. (N.D. Tex. Sept. 30, 2014), citing
Wichita Falls State Hosp. v. Taylor, 106 S.W. 3d 692, 694 n.3
(Tex. 2003).

The Texas Legislature’s limited waiver of sovereign

immunity is for tort claims arising out of the use of publicly
owned automobiles, for premises defects, and for injuries arising
out of conditions or use of property.
-20-

Tex. Civ. Prac. & Rem. Code

§ 101.021. It does not waive immunity for intentional torts, such
as assault and battery, malicious prosecution, false arrest. Tex.
Civ. Prac. & Rem. Code § 101.057.

See, e.g., Muhammad v. Newell,

3-08-CV-1426-BD, 2009 WL 2482142, at *3 (N.D. Tex. Aug. 12,
2009)(limited waiver of TTCA “does not extend to claims ‘arising
out

of

assault,

battery,

false

imprisonment,

or

any

other

intentional tort”); Chalmers, 2014 WL 1778946, at *4 (false
imprisonment).
Under the TTCA, which “covers all tort theories that may
be alleged against a governmental entity whether or not it waives
that immunity,” “‘[i]f suit is filed . . . against both a
governmental unit and any of its employees, the employees shall
immediately

be

dismissed

governmental unit.’”

on

the

filing

of

a

motion

by

the

Tex. Civ. Prac. & Rem. Code § 101.106(e);

Gil Ramirez Group, LLC v. Houston I.S.D.,

F.3d

, 2015 WL

2383797, at *11 (5th Cir. May 18, 2015), citing Mission Consol.
I.S.D. v. Garcia, 253 S.W. 3d 653, 658 (Tex. 2008)(interpreting §
101.106(e) to cover all tort claims, including those for which
immunity was waived by the TTCA).

See also Bustos v. Martini

Club, Inc., 599 F.3d 458, 463 (Tex. 2010)(any state common law
tort claim brought against a governmental unit and its employees,
including intentional torts, will allow the employee defendants to
be dismissed if the governmental unit moves to do so).

In such a

circumstance, a plaintiff’s claims against defendants in their
individual capacities are statutorily barred by § 101.106(e)
because under § 101.106(a), “[t]he filing of a suit under this
chapter against a governmental unit constitutes an irrevocable
-21-

election by the plaintiff and immediately and forever bars any
suit or recovery by the plaintiff against any individual employee
of the governmental unit regarding the same subject matter.”

The

same is true under Tex. Civ. Prac. & Rem. Code § 101.106(f)8 if
the employees have been sued in their official capacity.

Morales

v. City of Sugar Land, No. Civ. A. H-13-3575, 2015 WL 162203, at
*7 (S.D. Tex. Apr. 9, 2015), citing Stinson v. Fontenot, 435 S.W.
3d 793, 794 (Tex. 2014)(per curiam).

The Legislature passed §

101.106 to prevent lawsuits against governmental employees that
would in actuality be second attempts at recovery for the same
claim.

Lowe v. Teator, 1 S.W. 3d 819, 822 (Tex. App.--Dallas

1999, pet. denied).

8

Section 101.106(f) provides,

If a suit is filed against an employee of a
governmental unit based on conduct within the
general scope of that employee’s employment
and if it could have been brought under this
chapter against the governmental unit, the
suit is considered to be one against the
employee in the employee’s official capacity
only.
On the employee’s motion, the suit
against shall be dismissed unless the
plaintiff files amended pleadings dismissing
the employee and naming the government unit
as defendant on or before the 30th day after
the date the motion is filed.
-22-

In

contrast

to

sovereign

immunity,9

which

protects

governmental entities from liability, under Texas law official
immunity is an affirmative defense that protects a public official
from individual liability where he conclusively establishes that
he is (1) performing discretionary duties (2) that are within the
scope of his authority, (3) provided that he acts in good faith.
Telthorster v. Tennell, 92 S.W. 3d 457, 461 (Tex. 2002); City of
El Paso v. Heinrich, 284 S.W. 3d 366, 380 (Tex. 2009).
Defendants’ Motion to Dismiss (#3, Memorandum #4)

9

In Texas sovereign immunity protects the State and
various divisions of state government, including agencies, boards,
hospitals, and universities, and governmental immunity protects
its political subdivisions, including cities, from lawsuits for
money damages unless that immunity has been waived. Texas Natural
Resource Conservation Comm’n v. IT-Davy, 74 S.W. 3d 849, 853 (Tex.
2002); Wichita Falls State Hosp. v. Taylor, 106 S.W. 3d 692, 694
n.3 (Tex. 2003). Section 101.021 of the Texas Civil Practices and
Remedies Code waives sovereign immunity in very limited
circumstances: “A governmental unit in the state is liable for:
(1) property damage, personal injury, and
death proximately caused by the wrongful act
or omission or the negligence of an employee
acting within the scope of employment if:
A) the property damage, personal injury,
or death arises from the operation or
use of a motor-driven vehicle or motordriven equipment; and
(B) the employee would be personally
liable to the claimant according to
Texas law; and
(2) personal injury and death so caused by a
condition or use of tangible personal or real
property if the governmental unit would, were
it a private person, be liable to the
claimant according to Texas law.

-23-

As a threshold matter, Defendants note that Harris
County and Harris County Constable Precinct One are the same
juridical entity, hereinafter referenced as “Harris County.”
Defendants insist that Gehring has failed to state a
claim under § 1983 against any of the four individuals, failed to
allege facts that would establish any deprivation of his clearly
established constitutional rights by their actions and to overcome
their

qualified

immunity,

as

required

under

the

heightened

pleading standard established in Elliot v. Perez, 751 F.2d 1472.
The deprivation of a right under state law is not enough to state
a claim under § 1983 and the statute does not “constitutionalize”
state law.

Davis v. Scherer, 468 U.S. 183, 194 (1984).

Gehring

must identify specific actionable conduct by each defendant and
show that the alleged constitutional violation was intentional and
not merely negligent.
(1986).

Daniels v. Williams, 474 U.S. 327, 331-32

Instead Gehring’s incorrect invocations of the Fourth

(prohibiting unreasonable searches and seizures), Fifth (which
applies only to the federal government), and Fifteenth (denial of
the right to vote based on race, color or previous condition of
servitude) Amendments are inapposite to the facts here.
The Fourteenth Amendment’s due process right is also
inapplicable.

An employee to have a due process claim must show

he has a property interest in his job.
U.S. 593, 599 (1972).

Perry v. Sindermann, 408

To establish a property interest in a

public employee job, a plaintiff must show that the public entity
expressly and knowingly relinquished its right to terminate that
employee except for cause.

Muncy v. City of Dallas, Texas, 335
-24-

F.3d 394, 398 (5th Cir. 2003)(“This abrogation may take the form
of a statute, rule, handbook, or policy which limits the condition
under

which

employment

may

be

terminated”

or

“a

more

particularized mutual understanding with the employee”), citing
Gilbert v. Homar, 520 U.S. 924 (1997); Sindermann, 408 U.S. at
602-03; and Stapp v. Avoyelles Parish Sch. Bd., 545 F.2d 527 (5th
Cir. 1977).

In Texas employment-at-will is presumed unless that

relationship has been expressly altered by contract or by rules or
policies limiting the conditions under which an employee may be
discharged.

Muncy v. City of Dallas, Texas, 335 F.3d at 398.

It

is the employee’s burden to prove that the presumed at-will
relationship was altered.

Dworkschak v. Transocean Offshore

Deepwater Drilling, Inc., 352 S.W. 3d 191, 196 (Tex. App.--Houston
[14th Dist.] 2011, no pet.).

It is well established that Harris

County Constable Deputies are employees at-will. Renken v. Harris
County,

808

S.W.

2d

222

(Tex.

App.--Houston

[14th

Dist.]

1991)(Deputy constable Renken’s status as an “at-will” employee
barred his reinstatement); Gillis v. Wooten, No. 14-03-01134-CV,
2004

WL

1406299,

2004)(“Generally,

at

*3

deputy

(Tex.

App.--Houston

constables

are

[14th

considered

Dist.]
at-will

employees as they are hired for an unspecified period and are
subject

to

the

‘virtually

unbridled

authority’

constable with regard to hiring and firing.
of

future

employment,

the

at-will

held

by

the

With no expectation
employee

holds

no

constitutionally protected property interest.”), citing Renken,
808 S.W. 2d at 226, and Montgomery County Hosp. Dist. v. Brown,
965 S.W. 2d 501, 504 (Tex. 1998).
-25-

Defendants insist that Gehring

has no property interest in his job, and therefore he has no due
process claim under the Fourteenth Amendment for a discharge, no
less a demotion or transfer.
Even

if

he

were

able

to

show

a

constitutional

deprivation, Gehring fails to state a claim against the individual
Defendants (Rosen, Colunga, Maples and Shaw) because he cannot
overcome their qualified immunity defense.

“When a defendant

invokes [qualified] immunity, the burden is on the plaintiff to
demonstrate the inapplicability of the defense” by satisfying a
heightened

pleading

standard

requiring

specific

facts

with

sufficient particularity to meet all the elements of the claim and
those necessary to negate the qualified immunity defense).
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002),
cert. denied, 537 U.S. 1232 (2003); Brown v. Glossip, 878 F.2d
871, 874 (5th Cir. 1989).

To do so, Gehring would have to show

that no reasonable government official could have believed the
accused officials’ alleged conduct was lawful in light of the
information he possessed and clearly established law.
v. Riser, 213 F.2d 226, 231 (5th Cir. 2000).

Mendenhall

Gehring has not

pleaded any particular facts regarding any of the four individual
officers, has not shown any violation of clearly established
rights or a constitutional violation, has not identified any basis
for

a

property

interest

in

his

job,

Defendants’ qualified immunity defenses.
allegations

against

Rosen

and

Maples,

and

has

not

overcome

He makes no specific
and

his

only

charges

regarding Colunga and Shaw is Shaw’s instruction to Gehring to
write up the three incidents and Colunga and Shaw’s responses to
-26-

Gehring’s question if there was a complaint against him.

These

statements do not demonstrate that the individual Defendants’
conduct was unreasonable in light of clearly established law.
Therefore, Gehring fails to overcome their qualified immunity and
the allegations must be dismissed.
Because Gehring has failed to state the derivation of a
constitutional federal right, he has no claim against Harris
County.

Even if he had, as noted, governmental liability under §

1983 cannot be based on respondeat superior.
691.

Monell, 436 U.S.

Here Gehring’s allegations against Harris County are only

based on a theory of respondeat superior.
1, at p. 10.

Original Petition, #1-

To hold the County liable, he must, but has not

alleged a policy maker, an official policy, and a violation of his
constitutional rights whose moving force is a policy or custom.
Id. at 694.

“The existence of official policymaking authority is

a question of law to be decided by the court.”

Tharling v. City

of port of Lavaca, 329 F.3d 422, 430-31 (5th Cir. 2003).

Gehring

has failed to provide a required factually specific description of
the obligatory policy or custom.
policy-making

governmental

He has not shown the mandatory

official

who

has

knowledge

of

an

alleged unconstitutional custom and that through its deliberate
conduct, the County was the moving force behind, or cause in fact
of, the constitutional injury alleged or that there is a direct
link

between

deprivation.

the

County’s

policy

and

the

constitutional

Pineda v. City of Houston, 291 F.3d 325, 330 (5th

Cir. 2002); Board of County Commissioners of Bryan County, Okl. v.
Brown, 520 U.S. 397,

404 (1997); Piotrowski, 237 F.3d at 578-79;
-27-

Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th
Cir. 1997).

Gehring has failed to identify any unconstitutional

policy of Harris County.

Indeed, Defendants further contend that

Plaintiff has asserted that they acted contrary to, not in
accordance with, County policy in asserting that they failed to
follow the County policy of adequately investigating complaints in
accordance with section 3.03 of the Harris County Precinct I
Policy and Ethics Manual.
Defendants contend that Gehring’s claim under the Texas
Government Code is barred by the County’s governmental immunity,
which the Texas Legislature has not waived under § 614 from claims
for damages.

City of Seagovill v. Lytle, 227 S.W. 3d 401, 407-10

(Tex. App.-Dallas 2007, no pet.)(city immune from monetary damage
claim under Texas Government Code §§ 614.022-023).
Similarly

Gehring’s

claims

against

the

individual

Defendants are barred by derivative immunity under the Texas Tort
Claims Act § 101.106(e).

Plaintiff chose to sue both Harris

County and the individual employees of Harris County, so state law
claims against the individual employees must be dismissed pursuant
to this motion for dismissal from Harris County.
Texas

official

immunity

federal law of qualified immunity.

is

substantially

like

the

Haggerty v. Texas Southern

Univ., 391 F.3d 653, 658 (5th Cir. 2004).

A public official or

governmental employee is entitled to official immunity if he was
(1) acting within the scope of his authority, (2) in performing a
discretionary duty, and (3) in good faith.

Even if the act was

wrongly or negligently performed, it is still within the scope of
-28-

authority.

City of Lancaster v. Chambers, 883

(Tex. 1994).

S.W. 2d 650, 658

Official immunity also bars Plaintiff’s state law

claims. To defeat a defendant’s claim of good faith, Gehring must
establish that no official in the defendant’s position could have
believed the facts justified his conduct. Telthorster, 92 S.W. 3d
at 460.

What allegations Gehring does make show the individual

Defendants were performing discretionary duties within the scope
of their authority in good faith.

Thus Plaintiff’s claims under

the Texas Government Code and any other statutory provision are
also barred by official immunity.
Last

of

all,

Defendants

maintain

that

Gehring

misconstrued Texas Government Code § 614.022, which presupposes
that a written signed complaint has been made by a victim, not a
law enforcement agency’s internal observation.

There is no

allegation that the County received a complaint about Gehring from
a third-party alleged victim, no less a tangible complaint which
could be provided to him under § 614.

By its own terms the

Chapter “applies only to a complaint against a peace officer.”
Tex. Gov’t Code § 614.021(a)(3). Gehring does not assert that any
of the alleged victims in the three incidents signed a written
complaint against him that was the basis of the disciplinary
measures taken against Gehring, but which was not provided to him
before those measures were taken.

Thus Gehring has failed to

state a plausible claim under the Texas Government Code.
As a final matter, Defendants request an award of
attorney’s fees as sanctions under Rule 11(c) of the Federal Rules
of Civil Procedure because Gehring’s allegations are frivolous and
-29-

because he pursued them even after Defendants notified him of
their baseless nature.
Gehring’s Response (#6)
Gehring conclusorily asserts that a Rule 12(b)(6) motion
may only be granted if, assuming all allegations in the complaint
are true and viewing them in a light most favorable to the
Plaintiff, a court finds that Plaintiff has failed to set forth
fair notice of what the claim is and the grounds upon which it
rests.

Twombly, 127 S. Ct. at 1955.

He claims that the Supreme

Court has opined that a defense of immunity is an inappropriate
ground to dismiss a complaint:

“This Court has never indicated

that qualified immunity is relevant to the existence of the
plaintiff’s

cause

of

action

.

.

.

.”

Independence, Mo., 445 U.S. 622 (1980).

Owen

v.

City

of

Furthermore, Gehring

contends that Defendants cannot assert the immunity of police
officers to immunize them from liability.

Id.

Defendants’ Reply (#8)
Defendants maintain that they have shown that Gehring
has

failed

to

state

a

Defendants in the case.

plausible

claim

against

any

of

the

The Court does not summarize in detail

Gehring’s response because it agrees with Defendants that the
Court’s review is restricted to the complaint and its attachments,
that Plaintiff’s conclusory assertions are insufficient to state
a

claim,

and

that

Plaintiff’s

response

“is,

essentially,

a

repeating and rehashing of the baseless and legally unavailing
allegations

of

his

Complaint.”

#8

at

p.1.

Gehring

also

erroneously rejects the well established heightened pleading
-30-

requirement for qualified immunity and ignores the controlling law
cited by Defendants.
Defendants’ Reply (#8)
Defendants reiterate points previously made.
Gehring’s Reply (#9)
Gehring repeats his objections in his response and
insists that Defendants are incorrect.
Court’s Decision
The

Court

has

laid

out

the

law

and

agrees

with

Defendants’ arguments in their motion to dismiss, well supported
by authority and factual allegations in the petition that he fails
to and cannot state a claim for which relief can be granted.
Moreover, allowing amendment would be futile, as Gehring clearly
has not and cannot plead a constitutional violation on the facts
in his complaint, he is an at-will employee without a property or
liberty interest10 in his employment to support a due process claim
under the Fourteenth Amendment even if one were viable based on
his demotion and transfer, and he cannot overcome the immunity
defenses again based on the factual allegations in the Petition.

10

Although Ghering was demoted and transferred, he has
not alleged facts that would even come near to suggesting that
this adverse employment decision reached the level of besmirching
his good name, reputation, honor and integrity to the point of
damaging his standing and associations in the community or
depriving him of even current employment, no less a future
opportunity for such. Roth, 408 U.S. at 573-74. Indeed, there is
no allegations that the demotion and transfer were even made
public except by Gehring in filing this suit. As the Supreme
Court commented in Paul v. Davis, 424 U.S. 693, 710 (1976),
“Certainly there is no suggestion in Roth to indicate that a
hearing would be required each time the State in its capacity as
employer might be considered responsible for a statement defaming
an employee who continues to be an employee.”
-31-

Not only did his Petition fail to state a claim for which relief
can be provided, but his various subsequent submissions fail to
assert any facts or cite any law that can save his suit.

Thus the

Court grants Defendants’ motion to dismiss.
Final judgment will issue by separate document.
SIGNED at Houston, Texas, this

21st

day of

January ,

2016.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-32-