Williams v. City of Austin et al

Filing 16

ORDER GRANTING Defendants' 7 Motion to Dismiss. Fred Fletcher (in his official and individual capacities), Margo Frasier (in her official and individual capacities), Austin Police Department and City of Austin are hereby terminated. This Di smissal is With Prejudice with respect to those claims for which leave to amend was denied. As to the remaining claims, Plaintiff may file an amended complaint not later than fourteen (14) days after the issuance of this order. Signed by Judge Robert Pitman. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BLAYNE WILLIAMS, SR.,
Plaintiff,
v.
CITY OF AUSTIN, ART ACEVEDO,
MARGO FRASIER, and
FRED FLETCHER, et al.,
Defendant.

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1:16-CV-1338-RP

ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint,
filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 7). Having considered the
pleadings, the parties’ filings, and the applicable law, the Court issues the following order.
BACKGROUND
Plaintiff Blayne D. Williams was formerly a police officer employed by the Austin Police
Department (“APD”). Plaintiff brings this action against the City of Austin, the Austin Police
Department, Police Chief Art Acevedo, police monitor Margo Frasier, and police commander Fred
Fletcher. 1
Plaintiff’s allegations largely concern disciplinary actions taken against him up to the eventual
termination of his employment in the summer of 2015. This first such action occurred in 2011. In
that instance, Plaintiff had been involved in a physical altercation with an elderly HEB employee
when that employee cut in line in front of Plaintiff at an ATM while Plaintiff was off-duty. 2

1

According to the complaint, Fletcher is now the chief of police for the Chattanooga Police
Department.
2
Plaintiff’s complaint provides little information about his conduct leading up to these disciplinary
actions. These facts are taken from Chief Acevedo’s affidavit, which Plaintiff attached to his

Following a complaint, APD’s Internal Affairs Division began an investigation into the incident,
which resulted in Plaintiff’s chain of command recommending his indefinite suspension. At or
following a subsequent dismissal review hearing, Plaintiff and Chief Acevedo reached a deal in
which Plaintiff would receive only a ninety-day suspension and would waive his right to appeal the
discipline to the Civil Service Commission. Plaintiff now alleges that, under state law and his
collective bargaining agreement, Chief Acevedo had no authority to suspend him for ninety days and
that Chief Acevedo’s representations to the contrary were fraudulent.
The next instance of discipline occurred in 2013. Plaintiff was then engaged in approved offduty secondary employment for a Hyatt hotel. In this incident, Plaintiff recovered a cell phone that
was hidden in a guest bathroom. 3 The phone was positioned above the guest’s bathtub and
concealed atop a ceiling tile with a noticeable hole in it. Plaintiff reported to the hotel manager that
the situation potentially involved a felony incident of improper video or photography. Rather than
report the suspected crime to APD, however, Plaintiff turned the phone over to hotel security staff
with instructions to charge the phone and check it for improper images or video. The security staff
did so and, finding evidence of criminal conduct, reported the incident to APD the next day.
Plaintiff’s APD supervisors then instructed him to write a supplemental report on the incident.
Defendant Fletcher initiated an Internal Affairs investigation into Plaintiff’s handling of the
Hyatt incident. This investigation found that he violated two department policies concerning to
incident reporting and evidence collection. The chain of command recommended discipline was a
suspension of less than fifteen days. However, Assistant Chief Patrick Ockletree, who conducted
Plaintiff’s disciplinary meeting, felt that Plaintiff was evasive and dishonest during that meeting.
complaint. See Wilson v. Birnberg, 667 F.3d 591, 600 (5th Cir. 2012) (In ruling on 12(b)(6) motion,
courts may consider “documents either attached to or incorporated in the complaint.”).
3
Both Plaintiff’s complaint and Chief Acevedo’s affidavit are somewhat vague on the details of this
incident. Additional facts are drawn from Plaintiff’s prior lawsuit involving the incident, Williams v.
City of Austin, 170 F. Supp. 3d 939 (W.D. Tex. 2016), which, as a matter of public record, is properly
the subject of judicial notice. See Norris v. Hearst Trust, 500 F.3d 454, 461 (5th Cir. 2007).
2

Because of that, Plaintiff’s chain of command sustained two additional violations against him—for
neglect of duty and honesty—and changed the recommended discipline to indefinite suspension. A
dismissal review hearing followed and resulted in Chief Acevedo’s decision to indefinitely suspend
Plaintiff’s employment.
Plaintiff appealed the indefinite suspension. The hearing examiner sustained three of the
four policy violations but overturned the finding of dishonesty. In light of the three sustained
violations and Plaintiff’s past disciplinary history, the hearing examiner found that indefinite
suspension was inappropriate but that Plaintiff’s conduct clearly warranted a sanction greater than a
fifteen-day suspension. However, because the examiner’s authority was limited to reducing the
sanction to a suspension of fifteen days or less, he ordered that Plaintiff should be reinstated and
given back pay and benefits assuming only a fifteen-day suspension.
Plaintiff asserts that this discipline violated several of his federal constitutional rights and was
contrary to state law and his collective bargaining agreement. Additionally, Plaintiff alleges that
Acevedo’s later decision to terminate APD’s secondary employment contract with Hyatt constituted
tortious interference with his employment contract.
The final disciplinary action stemmed from Plaintiff’s response to a family disturbance call
on January 23, 2015. Plaintiff’s allegations here are sparse and unclear. He claims that he wrote the
necessary report after investigating the disturbance, but it appears he may have violated department
policy when he failed to make an arrest. However, Plaintiff maintains that he appropriately relied on
the statutory definition of “family violence”—which provides that acts of self-defense do not
constitute unlawful family violence—in determining that an arrest was unwarranted. See Tex. Fam.
Code § 71.004. Nonetheless, according to Plaintiff, Chief Acevedo cited him for incompetence over
his handling of the incident.

3

Finally, Plaintiff alleges that he made several reports of criminal activity by city employees to
APD’s Special Investigative Unit. He made two reports in May and June of 2014 concerning the
purported criminal acts of Chief Acevedo and city attorney Ann Spiegel. Plaintiff allegedly reported
additional criminal conduct of Chief Acevedo at the end of April 2015. He asserts that he was
terminated within ninety days of this latter report, triggering a presumption under state law that his
termination was due to his whistleblowing activity. See Tex. Gov’t Code § 554.004(a).
Plaintiff filed this action on December 27, 2016. Defendants moved to dismiss Plaintiff’s
complaint on January 20, 2017. Plaintiff did not respond to Defendants’ motion, but instead filed his
First Amended Complaint more than a month later, on February 21, 2017, without Defendants’
consent and without leave of the court. See Fed. R. Civ. P. 15(a)(2) (opponent’s consent or leave of
court required to amend pleading more than 21 days after service of 12(b)(6) motion). In the interest
of judicial economy, however, the Court will review the adequacy of Plaintiff’s complaint as
amended. Plaintiff’s First Amended Complaint lists six causes of action: (1) violation of 42 U.S.C.
§ 1981; (2) violations of 42 U.S.C. §§ 1985 and 1983 and retaliation; (3) fraud; (4) conspiracy; (5)
tortious interference with contract; and (6) wrongful discharge in violation of state-law
whistleblower protections. Defendants renewed their motion to dismiss on March 6, 2017. To date,
Plaintiff has filed no response. 4
LEGAL STANDARD
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the
complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be
taken as true. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8
mandates only that a pleading contain a “short and plain statement of the claim showing that the
4

The Court additionally notes that Plaintiff has failed to submit several filings mandated by the
Court’s scheduling order.
4

pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and
conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]”
devoid of “further factual enhancement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The court must initially identify pleadings that are no more than legal conclusions not
entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and
determine whether those allegations plausibly give rise to an entitlement to relief. If not, the
complaint has alleged—but it has not show[n]—that the pleader is entitled to relief. Iqbal, 556 U.S.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Throughout this process, the court “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,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007).
DISCUSSION
1.

Claim Preclusion
Defendants point out that Plaintiff has previously brought a lawsuit concerning largely the

same facts, which was dismissed with prejudice on March 16, 2016. (Dkt. 72, Civ. No. 1:14-cv-695SS). The Court will therefore examine whether any of Plaintiff’s claims are barred by the doctrine of
res judicata. 5
5

Though pleaded as an affirmative defense in Defendants’ Answer, (Dkt. 14), Defendants did not
raise the issue in their motion to dismiss. The Court may consider the issue sua sponte. See GLF Const.
Corp. v. LAN/STV, 414 F.3d 553, 555 n.2 (5th Cir. 2005); Am. Furniture Co., Inc. v. Int’l
5

“The doctrine of res judicata, or claim preclusion, forecloses relitigation of claims that were or
could have been raised in a prior action.” Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 312–13 (5th
Cir. 2004). If a claim in the current action meets the following four elements, it is barred by the
doctrine of res judicata: (1) the parties in the prior suit and current suit are identical; (2) a court of
competent jurisdiction rendered the prior judgment; (3) the prior judgment was final and on the
merits; and (4) the plaintiff raised the same cause of action in both suits. Id.
The first element is met as to Plaintiff’s claims against the City. (See Compl., 1:14-cv-695-SS,
Dkt. 1). 6 The second element is also met: the court in the prior action—this federal district court—
had jurisdiction to hear Plaintiff’s federal and related state-law claims. See 28 U.S.C. § 1367(a). The
prior court rendered summary judgment against Plaintiff and thus dismissed his claims with
prejudice, satisfying the third element.
Finally, Plaintiff’s prior and current claims against the City constitute the same cause of
action. Courts examining whether two lawsuits involve the same cause of action apply the
“transactional” test. Davis, 383 F.3d at 313. “Under the transactional test, a prior judgment’s
preclusive effect extends to all rights of the plaintiff ‘with respect to all or any part of the
transaction, or series of connected transactions, out of which the [original] action arose.’” Id.
(quoting Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395–96 (5th Cir. 2004)). Factors relevant to
the determination whether a grouping of facts constitutes a transaction or series of transactions
include “whether facts are related in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Id.
Accommodations Supply, 721 F.2d 478, 482 (5th Cir. 1981) (“[W]here all of the relevant facts are
contained in the record before us and all are uncontroverted, we may not ignore their legal effect,
nor may we decline to consider the application of controlling rules of law to dispositive facts, simply
because neither party has seen fit to invite our attention to the issue . . . .”)).
6
The joining of additional defendants does not prevent the preclusive effect of the prior judgment
as to those who were parties to the previous suit. Comer v. Murphy Oil USA, Inc., 839 F. Supp. 849,
856 (S.D. Miss. 2012), aff’d 718 F.3d 460 (5th Cir. 2013); Kennedy v. Pfizer, Inc., Civ. No. 13-3132, 2014
WL 4092479, at *2 (W.D. La. Aug. 13, 2014).
6

(quoting Restatement (Second) of Judgments § 24(2) (1982)). The “critical issue” is whether the two
actions share a common nucleus of operative fact. Id.
Plaintiff’s two actions against the City clearly arise from the same common nucleus of
operative fact. Plaintiff’s current action centers largely on the very same events that gave rise to his
prior suit. More specifically, both suits contain allegations of wrongful and discriminatory discipline
leading to a violation of his rights, such as the discipline resulting from his off-duty work at a Hyatt
hotel. These facts are obviously related in time, origin, motivation, and form a convenient trial
unit—they are the same facts. See id. The Court therefore concludes that Plaintiff’s claims against the
City concerning the acts of its agents occurring prior to the time he filed his previous action are
barred by the doctrine of res judicata. These claims are therefore dismissed without leave to amend. 7
2.

Claims Against the Austin Police Department
Plaintiff named the APD as a defendant in this action. APD is not a legal entity separate

from the City of Austin and is not capable of being sued. See Darby v. Pasadena Police Dep’t., 939 F.2d
311, 313–14 (5th Cir. 1991). Plaintiff’s claims against APD are therefore dismissed without leave to
amend.
3.

Whistleblower Claim
Plaintiff asserts a claim of wrongful termination in violation of the Texas Whistleblower Act,

Tex. Gov’t Code § 554.002. 8 Plaintiff alleges that he reported the criminal conduct of Chief Acevedo
and City Attorney Ann Spiegel to the Austin Police Department’s Special Investigative Unit and that
his employment was terminated within ninety days of his last report in April 2015.

7

In limiting this discussion to the preclusion of claims against the City, the Court expresses no view
on the availability of the defense of issue preclusion to the individual defendants. The Court will
consider the question if raised in future briefing.
8
Due to the lack of clarity throughout the complaint, the remaining discussion analyzes his claims as
though asserted against all defendants except where otherwise specified.
7

Plaintiff’s whistleblower claim fails for two reasons. First, an aggrieved whistleblower must
bring his claim no later than the ninetieth day after the violation occurred or was discovered through
reasonable diligence. Taking as true Plaintiff’s allegation that his employment was terminated within
ninety days of his April 2015 report, the violation would have occurred no later than July 2015.
Plaintiff does not allege that he only later discovered the violation; rather, he relies on a statutory
presumption that the adverse action was motivated by his report. See Tex. Gov’t Code § 554.004
(rebuttable presumption of retaliation if adverse action taken within ninety days of report).
Accordingly, Plaintiff was required to file his whistleblower claim no later than October 2015.
Plaintiff filed this action on December 27, 2016. His claim is therefore time-barred.
Second, even if Plaintiff had filed suit within the time allowed by statute, his claim would still
not be properly before this Court. The Texas Whistleblower Act’s waiver of sovereign immunity
does not extend to suits brought in the federal courts. See id. § 554.0035; Martinez v. Tex. Dep’t of
Criminal Justice, 300 F.3d 567, 575–76 (5th Cir. 2002) (“[W]e hold that, under this Act, Texas has not
waived its Eleventh Amendment immunity in federal court.”). To the extent his claim is not timebarred and assuming Plaintiff has complied with all other prerequisites to suit, see Tex. Gov’t Code
§ 554.006, Plaintiff must pursue his whistleblower claim in state court.
For these reasons, Plaintiff’s whistleblower claim is dismissed without leave to amend.
4.

Tort Claims
Plaintiff brings tort claims for fraud, conspiracy, and tortious interference with contract,

though it is unclear against whom he asserts these claims. To the extent he asserts them against the
City, his claims are barred under the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code
§ 101.057(2) (waiver of sovereign immunity does not extend to claims involving intentional torts).
To the extent Plaintiff asserts his claims against the individual defendants in their official capacities,
these claims are deemed asserted against the governmental entity and likewise fall within the
8

exclusion from the Act’s waiver of sovereign immunity. See Mason v. Lafayette City-Parish Consol. Gov’t,
806 F.3d 268, 279–80 (5th Cir. 2015) (citing Hafter v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state
officials in their official capacity therefore should be treated as suits against the State.”).
Plaintiff names each individual plaintiff in both their official and individual capacities and
makes passing references throughout the complaint to the individual defendants acting in their
individual capacities. (See, e.g., First Am. Compl. ¶¶ 23, 38). However, “[i]f 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 [the Tort Claims Act] against the governmental
unit, the suit is considered to be against the employee in the employee’s official capacity only.” Tex.
Civ. Prac. & Rem. Code § 101.106. Plaintiff includes no allegation from which the Court could
conclude that Defendants acted outside the scope of their employment. On the contrary, all relevant
allegations concern the individual defendants’ actions in bringing about or enforcing disciplinary
action against Plaintiff, which is plainly “conduct within the general scope of th[e] [defendants’]
employment.”
Additionally, “a tort suit against the government, as distinct from a statutory claim, is
brought ‘under’ the [Tort Claims] Act for purposes of section 101.106, even though the Act does
not waive immunity.” Franka v. Velasquez, 332 S.W.3d 367, 379 (Tex. 2011). Thus, Plaintiff’s
intentional-tort claims may be brought under the Act notwithstanding the government’s immunity.
See id. Section 101.106 therefore deems Plaintiff’s claims as against the individual defendants in their
official capacities. Accordingly, the claims are barred on grounds of sovereign immunity as explained
above. For these reasons, the Court dismisses Plaintiff’s tort claims without leave to amend.

9

5.

Civil Rights Claims
A.

Limitations Period

Plaintiff’s claims under 42 U.S.C. §§ 1981, 1983, and 1985 are governed by a two-year
limitations period. Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988); Hernandez v.
Kirkendall, SA:13-CV-0685-DAE, 2014 WL 3853842, at *2 (W.D. Tex. Aug. 5, 2014). Plaintiff filed
this action on December 27, 2016. Thus, all claims accruing prior to December 27, 2014, are timebarred. 9 The Court will consider these allegations only to the extent they offer factual support to
Plaintiff’s timely claims, if any.
B.

42 U.S.C. § 1981

Plaintiff brings a claim against Defendants under 42 U.S.C. § 1981. This statute guarantees
the equal right of all individuals within the United States to make and enforce contracts. Plaintiff
asserts that Defendants acted in concert to deny him the benefit of his employment contract.
To state a claim under § 1981, the plaintiff must offer factual allegations sufficient to support
the following elements: “(1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant[s]; and (3) the discrimination concerns one or
more activities enumerated in the statute.” Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.
1994). Plaintiff’s complaint contains scant allegations to support these claims, and those that
Plaintiff has put forward are too conclusory to support his claims, even in light of the liberal
construction afforded pro se plaintiffs. See Dickerson v. O’Neill, 73 F. App’x 84 (5th Cir. 2003) (citing
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)).
Plaintiff does not allege that he is a member of a racial minority. Based on his few references
to African American officers, it can perhaps be inferred that Plaintiff claims membership in this
group. Further, Plaintiff offers no facts from which it could be inferred that Defendants had any
In any case, these allegations were the subject of Plaintiff’s prior lawsuit. See Williams v. City of
Austin, 1:14-cv-659-SS (W.D. Tex. 2014).

9

10

intent to discriminate against him on the basis of his race. His allegations particular to his § 1981
claim are devoid of any mention of race or discrimination; they instead focus on Chief Acevedo’s
purported failure to follow the procedural provisions of state law and Plaintiff’s collective bargaining
agreement. Elsewhere in his complaint, Plaintiff alleges that Chief Acevedo has amended charging
letters as to non-African American officers but never as to any African American officer. This is the
sole clear allegation of disparate treatment in Plaintiff’s complaint, 10 and Plaintiff nowhere ties it to
his own situation, such as by alleging that there was a charging letter in his case, that he was eligible
for an amendment, that the charging letter was not amended, and that he was similarly situated to
others whose charging letters had been amended. Even if these facts were sufficiently pleaded, no
other present allegations suggest that the disparate treatment would concern one of the activities
enumerated in § 1981. See Green, 27 F.3d 1083 at 1086.
In sum, Plaintiff’s allegations fall far short of supporting a plausible claim for relief under
§ 1981, even when liberally construed in his favor. The Court therefore dismisses these claims.
C.

42 U.S.C. § 1985

The Court next addresses Plaintiff’s claim under 42 U.S.C. § 1985. This statute prohibits
persons from conspiring to deprive any individual of the equal protection, privileges, and immunities
of law. Plaintiff alleges that the individual defendants conspired to violate certain of his rights under
state and federal law.
To state a viable § 1985, the plaintiff must allege: “(1) a conspiracy involving two or more
persons; (2) for the purpose of depriving . . . a person . . . of the equal protection of the laws; and (3)
an act in furtherance of the conspiracy; (4) which causes . . . a deprivation of any right or privilege of
a citizen of the United States.” Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994). Plaintiff’s
10

Elsewhere, Plaintiff alleges that he “experienced discriminatory treatment which was different
from similarly situated employees, namely but not limited to Frank Corpus.” (First Am. Compl.,
Dkt. 5, ¶ 51). He does not elaborate on this conclusory assertion.
11

allegations exclusively concern the actions of Defendants Frasier, Acevedo, and Fletcher, which
were committed in the scope of their duties as employees of APD. Because of this, Plaintiff is
unable to establish the first element of a conspiracy claim. The Fifth Circuit has adopted the
intracorporate conspiracy doctrine in the context of § 1985 claims, id. at 653, which holds that “an
agreement between or among agents of the same legal entity, when the agents act in their official
capacities, is not an unlawful conspiracy.” Ziglar v. Abassi, Nos. 15–1358, 15–1359, 15–1363,
__ U.S. __, 2017 WL 2621317, at *25 (June 19, 2017). Since the individual defendants were at all
relevant times agents of the same legal entity, an agreement among them cannot establish a
conspiracy under § 1985 as a matter of law. See Hilliard , 30 F.3d at 652–53. The Court therefore
dismisses Plaintiff’s § 1985 claims without leave to amend.
D.

42 U.S.C. § 1983

The Court next examines Plaintiff’s claims arising under 42 U.S.C. § 1983, which creates a
private right of action against any person who, under color of state law, deprives any individual of a
federally secured right. Plaintiff alleges deprivations of his rights under the Fifth, Thirteenth, and
Fourteenth Amendments. 11
i.

Claims Against the City

To the extent not precluded, see supra, Plaintiff’s § 1983 claims against the City fail because
Plaintiff offers no allegations from which it could be inferred that the City was responsible for any
constitutional violation. See City of Canton v. Harris, 489 U.S. 378, 386 (1989) (“[A] municipality can
be found liable under § 1983 only where the municipality itself causes the constitutional violation at
issue.”). To establish municipal liability, the plaintiff must allege facts sufficient to identify: “(1) an
official policy (or custom), of which (2) a policymaker can be charged with actual or constructive
11

Plaintiff asserts in passing that Defendants also violated his First Amendment rights, but never
expands on that accusation. (See Fist Am. Compl., Dkt. 5, ¶ 9). Plaintiff’s complaint therefore states
no claim under the First Amendment.
12

knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy or custom.” Valle v.
City of Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325,
328 (5th Cir. 2002)).
Plaintiff’s complaint establishes none of these elements. Though he made a fleeting and
conclusory reference to a “dishonesty policy,” the allegation appears to be that a lawful policy was
used “arbitrarily and capriciously” against him—in other words, the “moving force” behind the
constitutional violation was not the policy itself, but rather the manner in which it was applied. (See
First Am. Compl., Dkt. 5, ¶ 29). At most, this alleges an isolated incident of unlawful conduct that
cannot sustain municipal liability. See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
The balance of Plaintiff’s allegations about the City concerns only its status as the employer of the
individual defendants. (See, e.g., First Am. Compl., Dkt. 5, ¶ 34). But because “[r]espondeat superior or
vicarious liability will not attach under § 1983,” these allegation fail to state a valid claim for
municipal liability. His claims against the City are therefore dismissed.
ii.

14th Amendment Due Process

Plaintiff alleges that his discipline and the ultimate termination of his employment deprived
him of procedural and substantive due process under the Fourteenth Amendment.
Where a public employee has a constitutionally protected property interest in his
employment, the employer’s failure to provide the employee pre-termination notice and an
opportunity to respond violates the employee’s right to procedural due process. Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542 (1985). Plaintiff’s complaint includes no facts suggesting that APD
failed to provide him with these procedural safeguards. On the contrary, Plaintiff alleges that Chief
Acevedo brought “charges against [him],” demonstrating that Plaintiff received at least some notice
prior to termination. (See, e.g., First Am. Compl., Dkt. 5, ¶ 23). Plaintiff makes no mention of the

13

presence or absence of any opportunity to respond prior to his termination. 12 Rather, he complains
only that Defendants’ conduct was not in accordance with the state Civil Service Act or his
collective bargaining agreement. Even if proven, these allegations do not establish a procedural due
process violation. See Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (“Mere failure to accord the
procedural protections called for by state law or regulation does not of itself amount to a denial of
due process.”). With no facts indicating that Plaintiff was denied pre-termination notice and an
opportunity to respond, Plaintiff has not adequately alleged a deprivation of his procedural due
process rights under the federal Constitution.
Plaintiff also asserts that his termination deprived him of substantive due process. “To
succeed with a claim based on substantive due process in the public employment context, the
plaintiff must show two things: (1) that he had a property interest/right in his employment, and
(2) that the public employer’s termination of that interest was arbitrary and capricious.” Lewis v. Univ.
of Tex. Med. Brach at Galveston, 655 F.3d 625, 630 (5th Cir. 2011) (quoting Moulton v. Cty. Of Beaumont,
991 F.2d 227, 230 (5th Cir. 1993)).
Plaintiff asserts that the “dishonesty policy was used arbitrarily and capriciously by Chief
Acevedo,” but he does not provide any other facts that make clear the importance of the allegation.
(See First Am. Compl., Dkt. 5, ¶ 29). Such a “formulaic recitation of the elements of a cause of
action,” devoid of “further factual enhancement,” is insufficient to support a claim. Twombly, 550
U.S. at 555. Even construed liberally in Plaintiff’s favor, the complaint includes no allegation—aside
from a conclusory yet sharp reference to “Gestapo” tactics—from which it could be inferred that
any defendant acted in a manner that “shocks the conscience.” See Marco Outdoor Advert., Inc. v.
Regional Transit Auth., 489 F.3d 669, 673 n.3 (5th Cir. 2006) (“The plaintiff must . . . demonstrate that
12

The Court notes, however, that the undisputed facts of his prior employment-related suit against
the City indicate that he had been receiving disciplinary review hearings. See Williams v. City of Austin,
170 F. Supp. 3d 939, 942–46 (W.D. Tex. 2016).
14

the abuse of power by the state official ‘shocks the conscience.’”). The Court therefore dismisses
Plaintiff’s § 1983 claims to the extent he alleges a violation of his Fourteenth Amendment
substantive and procedural due process rights.
iii.

14th Amendment Equal Protection

Plaintiff also alleges a violation of his right to equal protection under the Fourteenth
Amendment. This claim fails for the same reasons provided above with respect to his § 1981 claim.
Plaintiff’s bare assertion of disparate treatment provides the Court with no basis from which to infer
a violation of Plaintiff’s rights under the Equal Protection Clause. Rather, as Defendants point out,
Plaintiff’s complaint offers allegations that are “merely consistent” with Defendants’ liability. See
Iqbal, 556 U.S. at 678. This is insufficient to state a plausible claim for relief. Id. Plaintiff’s equal
protection claim is therefore dismissed.
iv.

13th Amendment

Plaintiff alleges that Defendants violated his Thirteenth Amendment right to be free from
involuntary servitude. The Thirteenth Amendment sought to abolish compulsory labor akin to the
institution of slavery. United States v. Kozminski, 487 U.S. 931, 942 (1988). Plaintiff’s complaint
provides no facts to suggest that he was subjected to such involuntary labor. He asserts only that the
discipline he sustained for his failure to report the Hyatt incident violated the Thirteenth
Amendment. (First Am. Compl., Dkt. 5, ¶ 23). He does not allege, however, that either this off-duty
work or his work for APD was involuntary. Moreover, to the extent Plaintiff was under a legal
obligation to report criminal activity even when off-duty, the Court notes that the Thirteenth
Amendment “does not prevent the State or Federal Governments from compelling their citizens . . .
to perform certain civic duties.” Kozminski, 487 U.S. at 944. Without more, Plaintiff has not stated a
viable claim under the Thirteenth Amendment.

15

Additionally, as the sole allegation in support of this claim concerns an event in 2013,
Plaintiff’s Thirteenth Amendment claim is time-barred as discussed above. The Court therefore
dismisses this claim without leave to amend.
v.

5th Amendment

Plaintiff alleges that Defendants violated his rights under the Fifth Amendment. The
relevant allegations are unclear and come under the header of Plaintiff’s fraud claim, not in the
section detailing his § 1983 claims. (See First Am. Compl., Dkt. 5, ¶¶ 31–34). Plaintiff suggests, but
does not explicitly allege, that one or more among Defendants compelled him to provide
information that was incriminating or otherwise damaging. However, he provides no additional
details beyond legal argument. (See id.). This bare accusation fails to state a viable claim. Iqbal, 556
U.S. at 678 (“[Rule 8] demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”).
The Court gleans some clues about the basis of Plaintiff’s claim from the facts of Plaintiff’s
prior lawsuit, Williams, 170 F. Supp. 3d at 942–46, along with Chief Acevedo’s affidavit, (First Am.
Compl., Dkt. 5, Ex. E), Plaintiff’s citation to Garrity v. New Jersey, 385 U.S. 493 (1967), and his
reference to a “dishonesty policy.” (See First Am. Compl., Dkt. 5, ¶ 29). The Court assumes from
these sources that Plaintiff bases his Fifth Amendment claim on his discipline related to the Hyatt
incident. Following the events at the Hyatt, discipline was initially recommended for his failure to
follow procedure in his handling of the cell phone he recovered from the guest’s bathroom.
However, those investigating Williams felt that he was dishonest and evasive during the
investigation, leading to additional discipline for dishonesty and for his failure to take responsibility
for his conduct. Because Plaintiff has repeatedly cited Garrity, 385 U.S. 493, which concerned
penalties imposed on police officers who refused to provide incriminating evidence to investigators,

16

the Court assumes that the thrust of Plaintiff’s claim is that his being disciplined for refusing to
accept responsibility—or, in other words, incriminate himself—violates the Fifth Amendment.
Even if Plaintiff had appropriately pleaded these facts, they would not state a claim for relief.
First, to the extent the claim accrued in 2013, it is time-barred as discussed above. Second, it is no
constitutional violation for the state to compel public employees to provide incriminating testimony
“specifically, directly, and narrowly relating to the performance of their official duties on pain of
dismissal from public employment,” so long as it does not also require a waiver of immunity against
the testimony’s use in a criminal case. Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of City of
N.Y., 392 U.S. 280, 284 (1968). Plaintiff does not allege that he was required to waive immunity as
part of the investigation into the Hyatt incident. Third, even if the APD investigators had unlawfully
compelled incriminating statements from Plaintiff, “it is not until their use in a criminal case that a
violation of the Self-Incrimination Clause occurs.” See Chavez v. Martinez, 538 U.S. 760, 767 (2003)
(plurality opinion). Plaintiff has not alleged that the state has used any compelled statements against
him in any criminal case. He therefore has no ripe claim under the Fifth Amendment. See id.
Plaintiff’s § 1983 claim premised on a violation of his Fifth Amendment rights is dismissed
without leave to amend.
6.

Retaliation
The Court finally addresses Plaintiff’s potential retaliation claim. Plaintiff uses the term

“retaliation” several times in his complaint, but, except where it concerns his whistleblowing
activities, see supra, it is unclear which legal theory Plaintiff relies on to advance his claim.
“Although claims of retaliation are commonly brought under the First Amendment and may
also be brought under Title VII, retaliation claims growing out of complaints of employment
discrimination have not been recognized under the Equal Protection Clause of the Fourteenth
Amendment.” Matthews v. City of W. Point, 863 F. Supp. 2d 572, 604 (N.D. Miss. 2012), Tinoco v.
17

Raleeh, No. 4:05CV367, 2006 WL 27287, at *2 (E.D. Tex. Jan. 5, 2006) (“No cause of action exists
for retaliation under the Equal Protection Clause of the Fourteenth Amendment.”). Additionally,
“[t]he Thirteenth Amendment does not establish an independent cause of action for employment
discrimination.” Washington v. Louisiana, Civ. Action No. 11-334-BAJ-DAD, 2012 WL 4159079, at
*12 (M.D. La.), report and recommendation adopted, 2012 WL 4120441 (M.D. La. Sept. 18, 2012), aff’d,
628 F. App’x 914 (5th Cir. 2015). Finally, as previously discussed, the state may permissibly punish a
public employee for his failure to provide even incriminating information related to the performance
of his public duties, so long as it does not also require a waiver of Fifth Amendment immunity. See
supra. A retaliation claim thus does not lie under the Fifth Amendment in the circumstances of this
case. As Plaintiff has alleged no facts to support a claim under the First Amendment 13 and does not
raise a claim under Title VII, the sole remaining basis for a retaliation claim is 42 U.S.C. § 1981.
To state a claim for retaliation under § 1981, the plaintiff must show: “(1) that the plaintiff
engaged in activities protected by § 1981; (2) that an adverse employment action followed; and (3)
that there was a causal connection between the two.” Foley v. Univ. of Hous. Sys., 355 F.3d 333, 339
(5th Cir. 2003). Plaintiff’s allegations of retaliation—at least those unrelated to his purported
whistleblowing activity—focus on the actions of Defendant Frasier. The only potentially protected
activity Plaintiff identifies in his complaint is that he previously sued Frasier for discrimination. (See
First Am. Compl., Dkt. 5, ¶ 19). Aside from a bare assertion of retaliation, Plaintiff’s complaint
contains no facts connecting that lawsuit to any adverse employment action. Additionally, Plaintiff
brought that suit against Frasier ten years before the first adverse employment action detailed in
13

To the extent Plaintiff’s allegations concerning his state whistleblower claim could be read as
supporting a First Amendment retaliation claim, they are still insufficient. A First Amendment
retaliation claim in the public employment context requires the plaintiff to demonstrate a causal
connection between the claimed protected activity and the adverse employment action. Gibson v.
Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016). Plaintiff’s whistleblower claim relied on a statutory
presumption to establish causation, which does not apply in the First Amendment context. Without
any other facts, Plaintiff has not provided sufficient allegations to support a First Amendment
retaliation claim.
18

Plaintiff’s complaint. See Williams v. Frasier, 1:01-cv-470-JN (W.D. Tex. 2001); (First Am. Compl.,
Dkt. 5, ¶ 14). This delay undermines any plausible inference of a causal connection. See Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (per curiam) (“Action taken . . . 20 months later
suggests, by itself, no causality at all.”).
Because Plaintiff’s complaint offers no allegations demonstrating that any activity protected
by § 1981 is causally connected to an adverse employment action within the limitations period, he
has failed to state a viable claim for relief. Plaintiff’s retaliation claim is therefore dismissed.
CONCLUSION
Even under the generous reading afforded to pro se complaints, the Court concludes that
Plaintiff’s First Amended Complaint states no valid claim for relief. Accordingly, Defendants’
Motion to Dismiss Plaintiff’s First Amended Complaint is hereby GRANTED. (Dkt. 7). Plaintiff’s
First Amended Complaint is DISMISSED. This dismissal is with prejudice with respect to those
claims for which leave to amend was denied. 14 As to the remaining claims, Plaintiff may file an
amended complaint not later than fourteen (14) days after the issuance of this order.
SIGNED on July 10, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

14

For clarity, this includes Plaintiff’s previously litigated claims against the City, his claims against
APD, his state law whistleblower and tort claims, any claims brought under the civil rights statutes
accruing before December 27, 2014, his claims under 42 U.S.C. § 1985, and his 42 U.S.C. § 1983
claims to the extent they allege violations of his Fifth or Thirteenth Amendment rights.
19