Stacks v. City of Bellmead, Texas et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations, DENYING 7 Motion to Dismiss filed by Lydia Alvarado. ORDERED this case be REFERRED back to Magistrate Judge Jeffrey C. Manske.. Signed by Judge Robert Pitman. (tb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
PATRICK J. STACKS,
Plaintiff,
v.
CITY OF BELLMEAD, TEXAS,
EVERETT “BO” THOMAS,
and LYDIA ALVARADO,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

6:16-CV-140-RP

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Defendant Lydia Alvarado’s Motion to Dismiss. (Dkt. 7). The case was
referred to United States Magistrate Judge Jeffrey C. Manske for a Report and Recommendation on
the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule
1(d) of Appendix C of the Local Rules of the United States District Court for the Western District
of Texas, as amended. Magistrate Judge Manske filed his Report and Recommendation to deny the
motion on October 4, 2016. (Dkt. 11). Defendant Alvarado filed an objection to that report on
October 11, 2016, arguing that the magistrate judge erroneously recommended that her motion to
dismiss be denied. (Dkt. 12). In light of these objections, the Court has undertaken a de novo review
of the entire case file in this action and finds that Magistrate Judge Manske’s Report and
Recommendation is correct and should be approved and accepted.
I. BACKGROUND
A summary of the allegations in Plaintiff’s complaint is included in the report and
recommendation of the magistrate judge. In short, Plaintiff Patrick J. Stacks alleges that Defendant
Lydia Alvarado, the City of Bellmead’s Chief of Police, along with City Manager Everett “Bo”
Thomas and the City of Bellmead, unlawfully retaliated against him under the First Amendment and
1

42 U.S.C § 1983 when he was terminated from his job as a police officer after helping to organize
and becoming President of the Bellmead Police Officer Assocation (“BPOA”). Defendant Alvarado
moved to dismiss the claims against her, arguing that she was entitled to qualified immunity because
she was not the final decision maker regarding Plaintiff’s termination and that Plaintiff was not fired
based on protected speech. Defendant Alvarado argued that under Fifth Circuit precedent, she is
entitled to qualified immunity because if she was not the final decision maker, the actions she
allegedly took in the complaint, including recommending Plaintiff’s termination, do not violate
clearly established law.
The magistrate judge determined that Plaintiff adequately alleged that Defendant Alvarado
was the final decision maker and recommended denying Defendant Alvarado’s motion to dismiss.
Defendant Alvarado timely filed objections to this recommendation.
II. STANDARD OF REVIEW
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), “[t]he
‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). Although Federal Rule of
Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim
showing that the 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. 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. The court must initially identify allegations in
the complaint that are no more than legal conclusions or “[t]hreadbare recitals of a cause of action’s
elements,” then assume the veracity of well-pleaded factual allegations and “determine whether they

2

plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
Defendant Alvarado makes six objections to the Report and Recommendation of the
magistrate judge. (Def.’s Objs. at 4–11, Dkt. 12). However, these objections are largely overlapping,
and consist of four primary arguments: first, that Plaintiff’s allegations and the city charter establish
that Defendant Everett “Bo” Thomas was the final decision maker with respect to Plaintiff’s
termination; second, that to the extent Plaintiff pled that Defendant Alvarado was a final decision
maker, his allegations are conclusory and insufficient to meet the requirements of Federal Rule of
Civil Procedure 8; third, that Plaintiff’s allegations regarding Defendant Alvarado’s involvement in
the termination are akin to those in Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015) and thus require
dismissal of the claims against Alvarado based on qualified immunity; and fourth, that the magistrate
judge erroneously denied Defendant Alvarado’s qualified immunity defense by not considering
whether Defendant Alvarado’s actions violated clearly established law of which a reasonable officer
would have been aware. The Court will address each of these arguments below.
A. Allegations Regarding Defendant Thomas & City Charter
Defendant Alvarado argues that Plaintiff’s claims against her must be dismissed because
Plaintiff’s “complaint . . . admitted that, by Charter, the City Manager [Defendant Thomas] was the
final authority and decision maker as to termination of employees.” (Def.’s Objs. at 1, Dkt. 12).
Later within her objections, Defendant goes so far as to assert that Defendant Alvarado was not the
final decision maker with respect to Plaintiff’s termination as a matter of law under the City Charter.
(Id. at 5). The Court rejects both of these arguments.

3

First, to the extent Defendant Alvarado argues that Plaintiff’s claims against her must be
dismissed because Plaintiff “admitted” that Defendant Thomas is the final decision maker within his
complaint, her argument is at direct odds with the federal rules. Fed. R. Civ. P. 8(d)(3) (“A party may
state as many separate claims or defenses as it has, regardless of consistency.”); see also Leal v.
McHugh, 731 F.3d 405, 414 (5th Cir. 2013) (finding that “allegedly inconsistent factual allegations”
are “not fatal” to plaintiff’s complaint); Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 674 (5th
Cir. 2003) (“Plaintiffs are permitted to plead in the alternative.”). Plaintiff’s allegations need not be
consistent under the federal rules so long as his different theories are plausible. 1 Further, Defendant
Alvarado does not get to pick the theory she likes best—that Defendant Thomas is the final
decision maker—and argue that theory is an admission, while ignoring Plaintiff’s alternate theory—
that she is the final decision maker.
Second, simply because the City Charter grants Defendant Thomas the authority to
terminate city employees does not mean that Defendant Alvarado could not be the final decision
maker with respect to the city’s police officers or Plaintiff. A final decision maker can have been
delegated that duty by another. See, e.g.; Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(“Authority to make municipal policy may be granted directly by a legislative enactment or may be
delegated by an official who possesses such authority. . . . [M]unicipalities often spread policymaking authority
among various officers and official bodies.” (emphasis added)); Zarnow v. City of Wichita Falls, 614
F.3d 161, 167 (5th Cir. 2010) (“A city’s governing body may delegate policymaking authority (1) by
express statement or formal action or (2) ‘it may, by its conduct or practice, encourage or
acknowledge the agent in a policymaking role.’”). 2 The City Charter does not preclude a delegation
The Court addresses the plausibility of the allegations against Defendant Alvarado infra Part III.C.
The Fifth Circuit draws a distinction between final decision-making authority and final policy-making authority. “[F]or
[a] municipality to be liable, the decision (whether or not one of policy) must be made by an official with final
policymaking authority in respect to the matter decided.” Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246 (5th Cir. 1993).
This distinction is not relevant, however, to Defendant Alvarado’s possible liability, only the City’s, which is not
currently at issue.
1
2

4

by Defendant Thomas, and it is quite plausible that a city’s police chief might be delegated the
responsibility of making employment decisions with respect to the city’s police officers.
In response to Plaintiff’s suggestion that his arguments in the alternative are allowed by the
federal rules and not precluded by the City Charter, Defendant Alvarado invents a new (and
unsupported) theory: if Defendant Thomas is alleged to be involved in the termination, it must be that
he was the final decision maker, and not Defendant Alvarado. This theory fails for two reasons.
First, it again ignores that Plaintiff may plead in the alternative. Thus, while the allegations regarding
Defendant Thomas indicate he was involved in the decision, those allegations are followed by
alternative allegations that Defendant Alvarado was the decision maker. Defendant Alvarado simply
ignores Plaintiff’s indication in his complaint (with words like “[a]lternatively” and “or”) that these
allegations are not necessarily intended to be read together. Second, it is factually plausible that
Defendant Alvarado could have been delegated authority over the decision to terminate Plaintiff,
while Defendant Thomas was still involved. 3 The Court therefore rejects Defendant’s arguments
that Plaintiff’s allegations regarding Defendant Thomas and the City Charter preclude Plaintiff’s
allegations against her.
B. Adequacy of Pleadings
Related to Defendant Alvarado’s objections that Plaintiff’s allegation regarding Defendant
Thomas are “fatal” to his allegations against her is Defendant Alvarado’s argument that Plaintiff has
not plausibly alleged that she has final decision-making authority. Yet Plaintiff’s complaint includes
specific factual allegations that make the allegation that Defendant Alvarado was the final decisionmaker with respect to Plaintiff’s termination plausible. Plaintiff alleged that Defendant Alvarado was
Defendant Alvarado emphasizes that Plaintiff alleges Defendant Thomas may have ratified Defendant Alvarado. While
a delegation of authority to Defendant Alvarado would be sufficient to give her final decision-making authority, she
would not be the final decision maker if Defendant Thomas had to ratify her decision. Including both an actionable and
non-actionable cause of action does not, however, require dismissal of a party’s claim. Leal, 731 F.3d at 414 (“[N]onactionable and actionable claims may be pled together in one complaint without rendering it susceptible to dismissal.”).
3

5

displeased by the existence of the BPOA and made that known to some of the City’s police officers.
(Am. Compl. ¶ 3.04–.05). Plaintiff also alleged that “a police officer, who was the vice-president of
the BPOA, was terminated from employment by Defendant Alvarado within a few days of the City
Council meeting.” (Id. ¶ 3.05). Then, when Plaintiff was terminated, “Defendant Alvarado
commented that there was a ‘difference in philosophy’” at his termination meeting. (Id. ¶ 3.06).
These allegations indicate that it was Defendant Alvarado, possibly alone, that communicated to
both Plaintiff and another member of the leadership of the BPOA that they were terminated. Based
on these allegations, it is reasonable to infer that Defendant Alvarado, the Chief of Police, was the
one with final decision-making authority to terminate Plaintiff because she was delegated that
authority from Defendant Thomas. Iqbal, 556 U.S. at 678 (“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.”).
C. Relevance of Culbertson
Defendant Alvarado argues that because the Fifth Circuit held in Culbertson that a defendant
who did not have final decision making authority was entitled to qualified immunity for a
recommendation of termination, Defendant Alvarado is entitled to qualified immunity here. The
magistrate judge correctly concluded that Culbertson is inapplicable because Defendant Alvarado’s
final decision-making authority is plausibly alleged. See Culbertson v. Lykos, 790 F.3d 608, 627 (5th Cir.
2015) (granting qualified immunity where it is unclear “whether someone who is not a final decisionmaker and makes a recommendation that leads to the plaintiff being harmed can be liable for
retaliation under Section 1983” (emphasis added)). Because the Court concludes that Plaintiff has
plausibly alleged that Defendant Alvarado was a final decision maker, and not just one who
recommended or was involved in Plaintiff’s termination, it agrees that the holding in Culbertson
regarding non-final decision makers is not applicable here.

6

D. Qualified Immunity
Finally, Defendant Alvarado argues that the magistrate judge’s Report and Recommendation
failed to consider whether Defendant Alvarado’s actions violated clearly established law of which a
reasonable officer would have been aware. It is, however, quite clear that if Defendant Alvarado was
the final decision maker, as alleged by Plaintiff, the conduct alleged by Defendant Alvarado is
unlawful retaliation and thus objectively unreasonable in light of clearly established First
Amendment law. As the magistrate judge noted, “a First Amendment retaliation claim in the
employment context has four elements: (1) the plaintiff suffered an adverse employment decision,
(2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in speaking
outweighed the governmental defendant's interest in promoting efficiency, and (4) the protected
speech motivated the defendant’s conduct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004). This
framework has been established within the Fifth Circuit for more than fifteen years. See id.; Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999).
Here, Defendant Alvarado did not dispute (1) that Plaintiff suffered an adverse employment
action; (2) that Plaintiff’s speech involved a matter of public concern; or (3) that Plaintiff’s interest in
speaking outweighed the City’s interest in promoting efficiency. See Culbertson, 790 F.3d at 617. And
Defendant Alvarado did not object to the magistrate judge’s conclusion that Plaintiff has alleged that
his protected speech motived Defendant Alvarado’s conduct. Thus, at this stage in the litigation,
where Defendant Alvarado is plausibly alleged to be a final decision maker, Defendant Alvarado is
not entitled to qualified immunity.

7

IV. CONCLUSION
Based on the foregoing, the Court ORDERS that the Report and Recommendation of the
United States Magistrate Judge (Dkt. 11) is APPROVED AND ACCEPTED.
The Court ORDERS that Defendant’s Motion to Dismiss (Dkt. 7) is DENIED. The Court
further ORDERS this case be REFERRED back to Magistrate Judge Jeffrey C. Manske.
SIGNED on November 21, 2016.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

8