Fitts v. Crain , 108 F. App'x 865 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2004
Charles R. Fulbruge III
Clerk
No. 04-20032
Summary Calendar
BILLIE FITTS,
Plaintiff-Appellant,
versus
CHRISTINA MELTON CRAIN, Chairman-Texas Department of
Criminal Justice, Individually and in her official capacity;
MARY BACON, Member, Texas Board of Criminal Justice,
Individually and in her official capacity; DEBBIE ROBERTS,
Interim Superintendent, Windham School District, Individually
and in her official capacity; WINDHAM SCHOOL DISTRICT,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-3076
--------------------
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Appellant Billie Fitts, a former teacher of business
computer classes at the Michael Unit of the Texas Department of
Criminal Justice, Institutional Division (TDCJ), brought this
suit under 42 U.S.C. § 1983 and state law. Fitts alleged that in
not renewing her teaching contract with appellee Windham School
District (Windham) after August 31, 2003, the defendants violated
*
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this opinion should not be published and is not precedent except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.
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her rights to due process and equal protection of the laws. We
AFFIRM.
Appellees Christina Crain and Mary Bacon, board members of
Windham and of the Texas Board of Criminal Justice; and Debbie
Roberts, Windham’s Interim Superintendent (the Windham officials)
responded by filing a motion to dismiss under FED. R. CIV. P.
12(b)(1). They asserted that the district court lacked subject-
matter jurisdiction over Fitts’s lawsuit as to them in their
official capacities because of Eleventh Amendment immunity. As
sued in their individual capacities, the Windham officials also
filed an answer to Fitts’s amended complaint, denying her
allegations and asserting their entitlement to qualified immunity
as to federal claims and official immunity as to state-law
claims. The Windham officials asserted, inter alia, that Fitts
had no property interest in her job for any type of due-process
claim because she had resigned her job.
The district court entered an order of dismissal and final
judgment, granting Windham and the Windham officials’ motion to
dismiss under Rule 12(b)(1), dismissing all federal claims with
prejudice and dismissing all pendent state claims without
prejudice to reassertion in state court. The court held, inter
alia, that Fitts had no constitutional right to a renewed
contract, because she had no property right in her contract.
Fitts contends that she is entitled to reversal because the
district court dismissed her individual-capacity claims on
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grounds of qualified immunity without first ordering her to file
either a statement of facts or a reply tailored to the
defendants’ qualified-immunity defense. Citing Schultea v. Wood,
27 F.3d 1112, 1118 (5th Cir. 1994), and 47 F.3d 1427, 1433 (5th
Cir. 1995)(en banc), Fitts argues that if she had known that the
district court wanted qualified immunity to be addressed, she
could have focused her general claim and supported it with
affidavits, exhibits, certified records, and a motion for summary
judgment.
Schultea does not hold, however, that a reply is required in
all instances. The en banc court stated only that the “district
court’s discretion not to [require a reply] is narrow indeed when
greater detail might assist.” 47 F.3d at 1433-34 (quotation at
1434).
Fitts asserts that if she had been ordered to file a reply,
she could have emphasized her contention that her property
interest in her job was based on Windham Policy No. 7.05-3.2-2.
However, she made that clear in her amended complaint. Fitts
iterated this contention in her reply to appellees’ answer, in
her argument against qualified immunity. Thus, it would not have
assisted the district court for Fitts to have filed another reply
pursuant to Schultea. Therefore, the district court did not
abuse its discretion by dismissing Fitts’s individual-capacity
claims without requiring her to file another reply. See
Schultea, 47 F.3d at 1434.
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Furthermore, assuming that the district court should have
ordered a Schultea reply, that still would not entitle Fitts to
relief. The reason is that Policy 7.05-3.2-2 did not confer a
property right in her job to Fitts, therefore she has no valid
§ 1983 claim relative to it.
Fitts contends that the district court erred by holding that
she had no protectable property interest in her job, specifically
by holding that her “right” to a renewed contract is not a right
secured by the Constitution. Fitts argues that she has a
legitimate claim of entitlement to continued employment based on
Texas state law, citing Bishop v. Wood, 426 U.S. 341, 344 (1976),
and other cases.
Qualified immunity protects “government officials performing
discretionary functions from civil damages liability as long as
their actions could reasonably have been thought consistent with
the rights they are alleged to have violated.” Enlow v.
Tishomingo County, Miss., 962 F.2d 501, 508 (5th Cir. 1992)
(internal quotation marks omitted). In examining a claim of
qualified immunity, the first step is to ascertain whether the
plaintiff has alleged the violation of a clearly established
federal constitutional right. Siegert v. Gilley, 500 U.S. 226,
231 (1991). “If the plaintiff does so, the court must then
assess whether the defendant’s conduct was objectively reasonable
in light of clearly established law.” Nunez v. Simms, 341 F.3d
385, 387 (5th Cir. 2003). The plaintiff’s failure to show such a
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violation of her rights “obviates the [court’s] need to address
the second step of the analysis.” Id.Fitts has failed to plead facts showing that she has a
property right in employment under Texas law, an essential
element of her claim. Her pleadings show that she was employed
by Windham under a term contract, which she concedes was a one-
year contract for 2002-2003 that was scheduled to end on August
31, 2003. Texas follows the at-will employment doctrine under
which, absent a specific contract provision to the contrary,
employment contracts are terminable at will by either party.
Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993).
By alleging that Windham informed her of the nonrenewal of her
contract, Fitts admits in her pleadings that Windham never agreed
to renew her contract and never agreed to any kind of extension.
Accordingly, Fitts’s pleadings establish that beyond her 2002-
2003 contract, her employment with Windham would have either
ended according to its terms or would have been at-will if she
had stayed with permission of Windham. Thus, Windham was free to
terminate Fitts’s employment.
In her amended complaint, Fitts noted that Windham’s Policy
No. 7.05-3.2-2 states: “If the Superintendent determines there is
good cause to not renew the contract, the employee shall be given
written notice of intent to nonrenew at least 45 days prior to
the end of the contract period.” Fitts relies on this provision
as the basis for her contention that she had a property interest
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in her job. While this provision provides for some instances in
which the superintendent will make a good-cause determination, it
does not indicate that in all instances Windham employees’
contracts are guaranteed to be renewed except for good cause.
Policy manuals or directives that do not purport to limit the
possible reasons for termination cannot create property rights.
See Moulton, 991 F.2d at 232 n.28.
Fitts’s lack of a property right in her job is also
demonstrated by her letter-request to be released from her
contract as of August 8, 2003. Her leaving Windham before the
end of her contract term resulted in her having no contract to
renew. Because there was no protected property interest under
state law, Fitts had no constitutional right to due process, as
the district court held. See Nunez, 341 F.3d at 387.
Fitts contends that the district court erred by holding that
Windham is an arm of the state, and thus entitled to Eleventh
Amendment immunity. She asserts that the district court also
should not have held that the individual defendants, sued in
their official capacity, were entitled to assert Eleventh
Amendment immunity. Fitts is not entitled to relief on these
claims because she had no property interest in her job. See
Farias v. Bexar County Bd. Of Trs. for M.H.M.R. Servs., 925 F.2d
866, 874-77 (5th Cir. 1991).
Fitts contends that the district court erred by dismissing
her claims for declaratory and injunctive relief, because
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“[s]tate sovereign immunity does not preclude declaratory or
injunctive relief against state officials.” See TTEA v. Ysleta
del Sur Pueblo, 181 F.3d 676, 680 (5th Cir. 1999)). Appellees
correctly point out that Fitts’s complaint requested declaratory
relief and monetary damages but not prospective (or other)
injunctive relief.
The amended complaint requested only monetary damages and a
declaratory judgment that the defendants’ acts and omissions
violated her rights under the Constitution and laws of the United
States. The district court did not specifically deny the request
for a declaratory judgment, but held that Fitts’s federal claims
did not entitle her to relief. The court dismissed her pendent
state claims without prejudice.
To be entitled to a declaratory judgment, a plaintiff must
show that there is an actual case or controversy under Article
III of the Constitution. See Lawson v. Callahan, 111 F.3d 403,
404-05 (5th Cir. 1997). Because Fitts has failed to make such a
showing, her appeal from the implied denial of declaratory relief
has no merit. See Plumley v. Landmark Chevrolet, Inc., 122 F.3d
308, 312 (5th Cir. 1997).
In her amended complaint, Fitts alleged that she was denied
equal protection of the law. She mentions this claim in her
opening brief, but does not include it as one of her appellate
issues. Appellees nevertheless have asserted in their brief that
Fitts’s equal-protection allegations lack merit. In her reply
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brief, Fitts argues conclusionally that she was treated
differently from another Windham employee. Because Fitts did not
raise equal protection as an appellate issue in her opening
brief, this court will not consider it on appeal. See Price v.
Roark, 256 F.3d 364, 368 n.2 (5th Cir. 2001).
AFFIRMED.