Arthur Rogers v. City of Yoakum , 660 F. App'x 279 ( 2016 )


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  •      Case: 16-40003      Document: 00513658558         Page: 1    Date Filed: 08/30/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-40003                               FILED
    August 30, 2016
    Lyle W. Cayce
    ARTHUR ROGERS,                                                                   Clerk
    Plaintiff - Appellant
    v.
    CITY OF YOAKUM; KEVIN COLEMAN, Individually and in his capacity as
    City Manager of the City of Yoakum, Texas; ANITA R. RODRIGUEZ,
    Individually and in her capacity as Mayor of the City of Yoakum, Texas;
    ELORINE SITKA, Individually and in her capacity as Mayor Pro-Tem of the
    City of Yoakum, Texas; RODNEY JAHN, Individually and in his capacity as
    Councilmember on the City of Yoakum's City Counsel; TIM MCCOY,
    Individually and in his capacity as Councilmember on the City of Yoakum's
    City Counsel; TIM FAULKNER, Individually and in his capacity as
    Councilmember on the City of Yoakum's City Counsel; TERESA BOWE,
    Individually and in her capacity as City Secretary and Personnel Officer of
    the City of Yoakum, Texas,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 6:15-CV-44
    Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
    Judges.
    PER CURIAM:*
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 16-40003     Document: 00513658558     Page: 2   Date Filed: 08/30/2016
    No. 16-40003
    Plaintiff Arthur Rogers sued the City of Yoakum and various city
    officials alleging causes of action under 42 U.S.C. § 1983, the Federal
    Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, the Texas Declaratory
    Judgments Act, TEX. CIV. PRAC. & REM. CODE § 37.001–.011, and Texas state
    law. Rogers appeals the district court’s dismissal of his claims under Federal
    Rule of Civil Procedure 12(b)(6). We AFFIRM.
    I. Background
    Rogers served as the Chief of Police and a peace officer for the City of
    Yoakum (the “City”) from December 2007 until he was terminated on July 9,
    2014. In or around October of 2011, Adult Protective Services contacted Rogers
    to report suspected mistreatment of an elderly citizen by Charles Kvinta, the
    City Attorney, who also had a private law practice. Rogers undertook an
    investigation of these allegations. Ultimately, because the allegations involved
    a City official, he reported them to the Texas Rangers for their assistance in
    the investigation.
    Kevin Coleman was hired by the City to serve as City Manager in
    December of 2011.      Rogers alleges Coleman was perturbed by Rogers’s
    investigation of Kvinta.
    In June of 2014, a Lavaca County Attorney requested that Coleman view
    a video of an incident where a City police officer deployed a taser to subdue a
    suspect in a questionable manner. Coleman brought this video to Rogers’s
    attention and requested that Rogers investigate the video and report his
    findings to Coleman. Coleman was not satisfied with Rogers’s handling of the
    incident. Citing Rogers’s handling of this incident as well as other deficiencies,
    Coleman terminated Rogers; Rogers alleges this was done with the approval of
    other city officials. Rogers alleges that this termination occurred without
    Coleman providing Rogers any written notice of the Lavaca County Attorney’s
    report and without an investigation into the incident.
    2
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    Rogers subsequently filed suit against the City, Coleman, and a number
    of other city officials. On the same day that he filed his original complaint, he
    realized an error and sought leave to file a corrected complaint, which the
    district court granted. Defendants moved to dismiss and Rogers responded,
    requesting leave to amend if the district court found that defendants’
    arguments had merit. Rogers subsequently moved for leave to file a first
    amended original and correct complaint, alleging Section 1983 claims based on
    violations of his First and Fourteenth Amendment rights; claims for relief
    based on the same constitutional violations under the Federal Declaratory
    Judgment Act; and claims under the Texas Declaratory Judgments Act for
    violations of the Texas Whistleblower Act, TEX. GOV’T CODE § 554.002–003,
    violations of Section 614.023 of the Texas Government Code, and defamation.
    In October of 2015, the district court held an initial conference, at which
    the district court heard arguments regarding the pleadings. The district court
    clarified that defendants did not need to file a subsequent Rule 12(b)(6) motion
    responding to Rogers’s first amended original and correct complaint, because
    the existing motion adequately addressed Rogers’s amended claims.                       On
    December 1, 2015, the district court granted Rogers’s motion for leave to file
    his amended complaint. The next day, the district court entered an opinion
    and an order on dismissal, dismissing all of Rogers’s claims with prejudice.
    Rogers timely appealed. 1
    II. Standard of Review
    “[We] review[ ] de novo a district court’s grant or denial of a Rule 12(b)(6)
    motion to dismiss, ‘accepting all well-pleaded facts as true and viewing those
    facts in the light most favorable to the plaintiff.’” True v. Robles, 
    571 F.3d 412
    ,
    1 Rogers does not appeal the dismissal of his claims for violations of his Fourteenth
    Amendment right to due process, his Texas Whistleblower Act claims, or his defamation
    claims, except his defamation claim against Coleman.
    3
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    417 (5th Cir. 2009) (citation omitted). “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.’” In re Katrina Canal Breaches Litig., 
    495 F.3d 191
    , 205
    (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)).
    “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 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.” 
    Twombly, 550 U.S. at 555
    (alteration in original) (citations omitted). “We may affirm a
    district court’s Rule 12(b)(6) dismissal on any grounds supported by the
    record . . . .” Hosein v. Gonzales, 
    452 F.3d 401
    , 403 (5th Cir. 2006).
    We review a district court’s denial of leave to amend for an abuse of
    discretion. Simmons v. Sabine River Auth. La., 
    732 F.3d 469
    , 478 (5th Cir.
    2013).
    III. Discussion
    A. Section 1983/First Amendment Claim
    Rogers appeals the district court’s dismissal of his Section 1983 claim
    that defendants violated his First Amendment rights by terminating him in
    retaliation for reporting Kvinta’s alleged misconduct to the Texas Rangers. In
    this context, Rogers must plead that his report was constitutionally protected
    speech by alleging, among other things, that he spoke as a citizen on a matter
    of public concern. See Gibson v. Kilpatrick, 
    773 F.3d 661
    , 666 (5th Cir. 2014)
    (citing Lane v. Franks, 
    134 S. Ct. 2369
    , 2378 (2014)).
    The parties dispute only whether Rogers’s speech was made as a citizen
    or pursuant to his official duties as Chief of Police. “[W]hen public employees
    make statements pursuant to their official duties, the employees are not
    speaking as citizens for First Amendment purposes, and the Constitution does
    not insulate their communications from employer discipline.”             Garcetti v.
    4
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    Ceballos, 
    547 U.S. 410
    , 421 (2006). The Supreme Court has instructed that
    this “inquiry is a practical one” that focuses on whether the speech was made
    “within the scope of the employee’s professional duties.” 
    Id. at 424–25.
    We
    have defined “pursuant to official duties” as “activities undertaken in the
    course of performing one’s job,” and look to factors such as job descriptions,
    whether the employee communicated with coworkers or with supervisors,
    whether the speech resulted from special knowledge gained as an employee,
    and whether the speech was directed internally or externally.                      Davis v.
    McKinney, 
    518 F.3d 304
    , 313 (5th Cir. 2008).
    Rogers alleges in his first amended complaint that, “[h]is official duties
    entailed the investigation of perceived wrong doing and reporting such findings
    to the prosecuting authorities,” and further states that “[c]ontacting the Texas
    Rangers was protected speech, outside the scope of his ordinary duties.” This
    conclusory and contradictory recitation of the elements is insufficient, standing
    alone, to support a conclusion that Rogers’s speech was made as a private
    citizen. Rogers does not allege any facts that illustrate why reporting Kvinta’s
    alleged misconduct to the Texas Rangers for their help in investigating the
    allegations fell outside the scope of his official duties to “investigat[e] . . .
    perceived wrong doing and report[ ] such findings to the prosecuting
    authorities.” Indeed, we have previously held that the title “Chief of Police”
    indicates that communication with outside law enforcement agencies is part of
    an employee’s job responsibilities. See 
    Gibson, 773 F.3d at 671
    . Further,
    Rogers’s complaint alleges that he was terminated “in retaliation for carrying
    out his law enforcement duties as Police Chief.” 2 Viewing these facts in the
    2Other allegations include: “Chief Rogers was terminated . . . in retaliation for the
    legitimate pursuit of his duties as the chief law enforcement officer of the City of
    Yoakum . . .”; “Chief Rogers was disciplined, retaliated against for exercising and performing
    5
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    light most favorable to Rogers, we conclude that Rogers has not sufficiently
    alleged that reporting Kvinta’s alleged misconduct was outside the scope of his
    official duties, and in fact, the allegations in his complaint support finding the
    very opposite. Accordingly, we affirm the district court’s dismissal of Rogers’s
    Section 1983 claim for retaliation in violation of his First Amendment rights. 3
    B. Texas Declaratory Judgments Act Claim
    Rogers next contends that the district court erred in dismissing his
    claims under the Texas Declaratory Judgments Act (“TDJA”), see TEX. CIV.
    PRAC. & REM. CODE § 37.001–.011, alleging state law defamation and violation
    of Section 614.023 of the Texas Government Code. The TDJA does not apply
    in federal district court. See Utica Lloyd’s of Tex. v. Mitchell, 
    138 F.3d 208
    , 210
    (5th Cir. 1998).       Assuming arguendo that Rogers intended to plead the
    substantive causes of action underlying his TDJA claim, we conclude that
    Rogers has failed to state a claim on either of these theories.
    1. Defamation
    Rogers appeals the district court’s dismissal of his state law defamation
    claim against Coleman. Defendants argue that Rogers’s defamation claim
    against Coleman is barred by Section 101.106 of the Texas Civil Practice and
    Remedies Code, which requires an election of remedies when a plaintiff sues
    both a governmental entity and its employees.
    Rogers alleges in his complaint that Coleman “publically accused Chief
    Rogers of negligence and essentially dereliction in the performance of his
    his official law enforcement duties . . .”; and “Chief Rogers was disciplined, retaliated against
    for exercising and performing his official law enforcement duties . . . .”
    3His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201–
    2202, are simply a repackaging of these same claims. The Declaratory Judgment Act is a
    procedural device and does not create an independent private right of action. Harris Cty. v.
    MERSCORP Inc., 
    791 F.3d 545
    , 553 (5th Cir. 2015); Lowe v. Ingalls Shipbuilding, A Div. of
    Litton Sys., Inc., 
    723 F.2d 1178
    , 1179 (5th Cir. 1984). Thus, this claim fails for the same
    reason as the 1983 claim.
    6
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    duties,” that “defendants . . . put a rubber stamp on the actions of Kevin
    Coleman,” and that such actions “constitute defamation, including libel and
    slander.”    Defendants moved for dismissal of Rogers’s claims against the
    individual defendants under Section 101.106. Because Rogers sued both the
    City and Coleman for defamation, he has made his election, and his suit
    against Coleman for defamation cannot proceed. See TEX. CIV. PRAC. & REM.
    CODE § 101.106(e). Accordingly, we affirm the district court’s dismissal of
    Rogers’s defamation claims against Coleman. 4
    2. Section 614.023 of the Texas Government Code
    Rogers also appeals the district court’s dismissal of his claim under
    Section 614.023 of the Texas Government Code. 5 Section 614.023 provides that
    where a “complaint” is filed against a law enforcement officer, a signed copy of
    the complaint must be given to the officer before any disciplinary action can be
    taken.     TEX. GOV’T CODE § 614.023.            Additionally, the officer may not be
    terminated on the basis of the complaint unless it is investigated and there is
    evidence to prove the allegation of misconduct. 
    Id. Importantly, Section
    614.023’s protections apply only when disciplinary
    action is based on the subject of a “complaint.” As we have recognized, “[o]ne
    implication [of this requirement] is that in all other situations, an officer may
    be discharged for a good reason, a bad reason, or no reason without the process
    provided.” Stem v. Gomez, 
    813 F.3d 205
    , 212 (5th Cir. 2016). Rogers alleges
    that he was terminated as the result of a report made by a Lavaca County
    4 Rogers contends that because Coleman was not acting in his official capacity when
    he made his allegedly defamatory remarks he is not entitled to official immunity. Rogers
    conflates official immunity with the statutory immunity provided by Section 101.106 of the
    Texas Civil Practice and Remedies Code. See Tex. Adjutant Gen.’s Office v. Ngakoue, 
    408 S.W.3d 350
    , 356–57, 357 n.6 (Tex. 2013); see also Poland v. Willerson, No. 01-07-00198-CV,
    
    2008 WL 660334
    , at *9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
    5 We assume without deciding that Rogers can bring a stand-alone claim for a violation
    of Section 614.023.
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    Attorney to Coleman that an officer under Rogers’s command had engaged in
    misconduct. We need not, and do not, decide whether such a report constitutes
    a “complaint” for purposes of Section 614.023.              Instead, we conclude that
    Rogers has failed to allege facts that, if true, show that he was terminated as
    a result of the Lavaca County Attorney’s report.
    In his complaint, Rogers seems to allege, relying on the exhibits
    attached to his complaint, that Coleman terminated Rogers because Coleman
    received a request from a Lavaca County Attorney to view a video of a City
    police officer using his taser on a suspect in a potentially problematic manner.
    In fact, the exhibits referenced by Rogers as support for his claim contradict
    these allegations and show that Coleman terminated Rogers based on Rogers’s
    response to the taser incident and his failure to appropriately discipline the
    officer in question. 6 The Lavaca County Attorney merely brought to Coleman’s
    attention the video of the taser incident. Nearly a month later, Coleman
    terminated Rogers as a result of Rogers’s responses (or failures to respond) to
    Coleman’s requests that he look into the incident. As indicated in the exhibits,
    this decision was reached based on Coleman’s own observations of Rogers’s
    behavior and his responses to issues within the department. Cf. Treadway v.
    Holder, 
    309 S.W.3d 780
    , 784 (Tex. App.—Austin 2010, pet. denied)
    (termination due to complaint requires following procedures in Section
    614.023). Because the exhibits attached to Rogers’s complaint contradict his
    6In determining whether a plaintiff has stated a claim under Rule 12(b)(6), we may
    consider “the complaint, any documents attached to the complaint, and any documents
    attached to the motion to dismiss that are central to the claim and referenced by the
    complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 
    594 F.3d 383
    , 387 (5th Cir.
    2010). When “an allegation is contradicted by the contents of an exhibit attached to the
    pleading, then indeed the exhibit and not the allegation controls.” U.S. ex rel. Riley v. St.
    Luke’s Episcopal Hosp., 
    355 F.3d 370
    , 377 (5th Cir. 2004) (citing Simmons v. Peavy-Welsh
    Lumber Co., 
    113 F.2d 812
    , 813 (5th Cir.), cert. denied, 
    311 U.S. 685
    (1940)).
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    allegations, we assume the facts in the exhibits to be true. See U.S. ex rel. Riley
    v. St. Luke’s Episcopal Hosp., 
    355 F.3d 370
    , 377 (5th Cir. 2004).
    The Lavaca County Attorney reported another officer’s possible
    misconduct to Coleman, and Rogers does not allege that he was terminated as
    a result of that officer’s conduct. Rather, as the exhibits he attached to his
    complaint demonstrate, he was terminated as a result of his subsequent
    failures to respond to that incident and discipline that officer. Here, where
    Rogers’s alleged misconduct was not the subject of the report in question, and
    Coleman himself observed Rogers’s alleged negligence and made the decision
    to terminate Rogers, the procedures outlined in Section 614.023 do not apply.
    See Paske v. Fitzgerald, ___ S.W.3d ___, 
    2016 WL 3459217
    , at *7 (Tex. App.—
    Houston [1st Dist.] June 23, 2016, no pet. h.). Accordingly, we affirm the
    district court’s dismissal of Rogers’s claims under Section 614.023 of the Texas
    Government Code.
    C. Leave to Amend
    Finally, Rogers contends the district court erred in refusing to grant him
    leave to amend his complaint rather than dismissing his case. 7 District courts
    7 Rogers also appeals the district court’s dismissal of his complaint on the ground that
    the district court improperly dismissed Rogers’s claims without giving Rogers notice or
    opportunity to respond. Rogers contends that the district court dismissed his claims sua
    sponte and accordingly, the dismissal should be reversed for failure to follow the procedural
    safeguards of notice and opportunity to respond. Alternatively, Rogers contends that, in
    considering extrinsic evidence, the district court improperly converted the defendants’ Rule
    12(b)(6) motion to dismiss into a motion for summary judgment under Rule 56. These
    arguments are unavailing.
    First, although a district court must provide “notice of the court’s intention and an
    opportunity to respond” before dismissing a case under Rule 12(b)(6) on its own motion,
    Lozano v. Ocwen Fed. Bank, 
    489 F.3d 636
    , 643 (5th Cir. 2007), here, the transcript of the
    conference held in chambers on October 5, 2015, indicates that, in dismissing Rogers’s suit,
    the district court was ruling on defendants’ motion to dismiss, and that the district court gave
    Rogers notice of its intention to do so. Rogers had sought leave to file an amended complaint,
    and the district court stated that, “even with [the plaintiff’s first amended original and correct
    complaint] the [defendants’] motion to dismiss stands,” clarifying that the defendants did not
    need to submit a new motion to dismiss. In response to defense counsel’s question regarding
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    have wide latitude to consider requests for leave to amend.                      In deciding
    whether to permit an amendment, a district court may consider factors such
    as “undue delay, bad faith or dilatory motive on the part of the movant,
    repeated failure to cure deficiencies by amendments previously allowed, undue
    prejudice to the opposing party by virtue of allowance of the amendment, [and]
    futility of amendment.”         Foman v. Davis, 
    371 U.S. 178
    , 182 (1962).                   We
    conclude that the district court gave Rogers sufficient prior opportunity to
    plead his best case and amend his complaint, and the district court did not
    abuse its discretion in dismissing Rogers’s case without permitting Rogers to
    file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal.,
    
    363 F.3d 398
    , 403–04 (5th Cir. 2004) (holding that the district court did not
    abuse its discretion in denying leave to file a third amended complaint where
    the plaintiff had already been given opportunities to amend and did not
    indicate what additional facts he could plead to correct the deficiencies in his
    complaint).
    AFFIRMED.
    whether the court intended to rule on the motion to dismiss, the district court confirmed that
    it would likely wait a few weeks, but that the motion to dismiss was still live. Thus we
    conclude that Rogers had sufficient notice of the procedure the district court planned to
    employ in ruling on the motion to dismiss Rogers’s complaint. Cf. Guajardo v. JP Morgan
    Chase Bank, N.A., 605 F. App’x 240, 242–43 (5th Cir. 2015) (district court dismissed plaintiff’s
    second amended complaint without requiring defendant to file a new motion to dismiss,
    because the second amended complaint did not correct the issues identified in the motion to
    dismiss the first amended complaint).
    With respect to Rogers’s contention that the district court improperly converted the
    motion to dismiss into a motion for summary judgment, Rogers has not pointed the court to
    any indication in the district court’s opinion or order on dismissal that the district court
    considered extrinsic evidence. See Feinberg v. Leach, 
    243 F.2d 64
    , 69 (5th Cir. 1957)
    (declining to denominate dismissal as being a summary judgment where the record did not
    indicate that the district court considered extrinsic evidence).
    10