Silvestre Moreno, Jr. v. Donna Independent School ( 2014 )


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  •      Case: 14-40197   Document: 00512808127     Page: 1   Date Filed: 10/20/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-40197                  United States Court of Appeals
    Fifth Circuit
    FILED
    SILVESTRE MORENO, JR.,                                          October 20, 2014
    Lyle W. Cayce
    Plaintiff - Appellant                                    Clerk
    v.
    DONNA INDEPENDENT SCHOOL DISTRICT; COUNTY OF HIDALGO;
    REYNALDO ALEGRIA, Individually and in his Official Capacities; NICK
    CASTILLO, Individually and in his Official Capacities; EFREN
    CENICEROS, Individually and in his Official Capacities; DONALD O.
    CRIST, Individually and in his Official Capacities; RENE ALFONSO
    GUERRA, Individually and in his Official Capacities; ROBERTO F.
    LOREDO, Individually and in his Official Capacities; ALFREDO LUGO,
    Individually and in his Official Capacities; ANGEL MAGALLANES,
    Individually and in his Official Capacities; MARY MORALES, Individually
    and in her Official Capacities; DEBBIE RODRIGUEZ, Individually and in
    her Official Capacities,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:12-CV-141
    Before PRADO, ELROD, and GRAVES, Circuit Judges.
    Case: 14-40197      Document: 00512808127         Page: 2    Date Filed: 10/20/2014
    No. 14-40197
    PER CURIAM:*
    Plaintiff Silvestre Moreno, Jr., proceeding pro se, filed claims under 42
    U.S.C. § 1983 against the County of Hidalgo (“County”), Donna Independent
    School District (“Donna ISD”), the State Bar of Texas, the State Bar’s Office of
    Chief Disciplinary Counsel (“CDC”), the Texas Education Agency (“TEA”), TEA
    investigator Michael Franks, and numerous employees and/or trustees of the
    County and Donna ISD, in their individual and official capacities. In five
    separate orders, the district court disposed of Plaintiff’s claims in favor of the
    defendants. We affirm.
    I.
    Plaintiff was a sixth grade social studies teacher at Veteran’s Middle
    School in the Donna ISD. Two incidents during his tenure are relevant to his
    claims. In the first, a student allegedly poured a chemical liquid into Plaintiff’s
    coffee, causing Plaintiff to become ill.           The student was not criminally
    prosecuted.      In the second incident, Plaintiff punched and kicked a
    misbehaving student. Following the second incident, Donna ISD suspended
    Plaintiff from his teaching position, with pay. Plaintiff participated in Donna
    ISD’s three-level grievance process, which included a hearing at which Plaintiff
    was afforded an opportunity to present his version of the incident.                    The
    suspension was upheld. Subsequently, Donna ISD notified Plaintiff that it
    would not renew his teaching contract. Plaintiff participated in a non-renewal
    hearing, received an adverse decision, and appealed his non-renewal to the
    Texas Commissioner of Education. The Commissioner upheld the decision,
    and Plaintiff did not file further appeals.
    * 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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    No. 14-40197
    Plaintiff then sent correspondence to Donald O. Crist, Chief of Police of
    the Donna ISD, asking Crist to investigate alleged criminal infractions
    committed by Debbie O. Rodriguez, Assistant Superintendent of Human
    Resources for Donna ISD, and Mary Morales, a police officer in the Donna ISD.
    Plaintiff later sent correspondence to Rene Alfonso Guerra, the Criminal
    District Attorney of the County, requesting a criminal investigation into Crist’s
    failure to conduct the requested criminal investigations of Rodriguez and
    Morales.
    Plaintiff filed suit in the Southern District of Texas, alleging multiple
    constitutional violations. In two orders, the district court dismissed the claims
    against the State Bar of Texas, the CDC, the TEA, and Franks as barred by
    Eleventh Amendment immunity. Plaintiff did not appeal those rulings. The
    district court dismissed Plaintiff’s claims against the County and Guerra for
    failure to state a claim upon which relief can be granted, dismissed Plaintiff’s
    claims against Morales for insufficient service of process, and granted
    summary judgment in favor of all other defendants. Plaintiff appealed each of
    these three orders.
    II.
    A.
    Plaintiff alleged that Guerra’s decision not to investigate Plaintiff’s
    complaints against Crist violated Plaintiff’s rights to due process and equal
    protection. The district court granted a motion to dismiss filed jointly by the
    County and Guerra. We review a district court’s grant of a motion to dismiss
    de novo. Boyd v. Driver, 
    579 F.3d 513
    , 515 (5th Cir. 2009) (per curiam).
    We agree with the district court that the Eleventh Amendment shields
    Guerra from official-capacity liability. See Kentucky v. Graham, 
    473 U.S. 159
    ,
    166 (1985) (“[A]n official-capacity suit is . . . to be treated as a suit against the
    entity . . . .”); Edelman v. Jordan, 
    415 U.S. 651
    , 663 (1974) (“[A]n unconsenting
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    State is immune from suits brought in federal courts.”). We further agree that
    Plaintiff’s claim against Guerra in his individual capacity is barred by absolute
    immunity. See Imbler v. Pachtman, 
    424 U.S. 409
    , 431 (1976) (holding that
    prosecutors are immune from civil liability for prosecutorial decisions). With
    respect to the County, we agree with the district court that a municipality
    “cannot be held liable under § 1983 on a respondeat superior theory,” Monell v.
    Dep’t of Soc. Servs., 
    436 U.S. 658
    , 691 (1978), and that Plaintiff did not allege
    any municipal policy or custom as the cause of his injury.
    B.
    Plaintiff’s claims against Morales are premised on actions Morales
    allegedly took during her investigation of the above-described incidents. The
    district court never addressed the merits of those claims, instead dismissing
    them, with prejudice, for insufficient service of process. See Fed. R. Civ. P.
    4(m). On appeal, Plaintiff contends that he properly served Morales and that
    the district court’s dismissal was an abuse of discretion.
    We “review a district court’s dismissal under Rule 4(m) for an abuse of
    discretion.” Thrasher v. City of Amarillo, 
    709 F.3d 509
    , 511 (5th Cir. 2013).
    Because “dismissal with prejudice is an extreme sanction that deprives a
    litigant of the opportunity to pursue his claim, it is warranted only where a
    clear record of delay or contumacious conduct by the plaintiff exists and a
    lesser sanction would not better serve the interests of justice.” 
    Id. at 512–13
    (internal quotation marks and citations omitted). To warrant dismissal, we
    must find a delay “longer than just a few months; instead, the delay must be
    characterized by significant periods of total inactivity.” Millan v. USAA Gen.
    Indem. Co., 
    546 F.3d 321
    , 326–27 (5th Cir. 2008) (internal quotation marks
    omitted).
    Upon review of the record, we conclude that the district court properly
    exercised its discretion in dismissing Plaintiff’s claims against Morales.
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    Plaintiff’s attempted service on Morales was invalid for two separate reasons.
    First, Plaintiff himself sent summons to Morales via certified mail, but the
    Texas Rules of Civil Procedure require that service be made by a “sheriff or
    constable or other person authorized by law.” See Tex. R. Civ. P. 103; see also
    Fed. R. Civ. P. 4(e) (incorporating service methods approved under state law).
    Indeed, the Texas Rules of Civil Procedure expressly prohibit a party to the
    lawsuit from serving process. See Tex. R. Civ. P. 103. Second, Morales never
    signed the certified mail receipt, rendering proof of service invalid under Texas
    Rule of Civil Procedure 107. See Tex. R. Civ. P. 107 (“[T]he return by the officer
    or authorized person must also contain the return receipt with the addressee’s
    signature.”).
    We also conclude that the district court was within its discretion in
    dismissing Plaintiff’s claims with prejudice. Plaintiff filed his lawsuit on April
    24, 2012. On December 18, 2012, the district court ruled that Plaintiff had not
    properly served Morales and directed Plaintiff do so within thirty days. Over
    a year later, on January 31, 2014, when Plaintiff still had not served Morales,
    the district court dismissed Plaintiff’s claims. In light of this “clear record of
    delay,” the district court’s dismissal with prejudice was warranted. 
    Thrasher, 709 F.3d at 514
    .
    C.
    Finally, Plaintiff alleged that Donna ISD and several of its employees
    violated his rights to due process and equal protection declining to renew his
    contract. The district court granted summary judgment to the defendants,
    ruling that Plaintiff was afforded due process and that Plaintiff failed to allege
    or establish that he was treated differently than others who were similarly
    situated. Plaintiff’s appeal is limited to the due process claims. “We review
    the grant of summary judgment de novo, applying the same standards as the
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    district court.” In re Egleston, 
    448 F.3d 803
    , 809 (5th Cir. 2006) (internal
    quotation marks omitted).
    “An essential principle of due process is that a deprivation of life, liberty,
    or property ‘be preceded by notice and opportunity for hearing appropriate to
    the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    ,
    542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 
    339 U.S. 306
    , 313 (1950)).       We agree with the district court that the non-renewal
    hearing—at which Plaintiff was afforded the opportunity to present his own
    version of the relevant events—satisfied the requirements of due process. See
    Franceski v. Plaquemines Parish Sch. Bd., 
    772 F.2d 197
    , 199–200 (5th Cir.
    1985) (“Termination after notice and hearing is not a deprivation cognizable
    under 42 U.S.C. § 1983.”). Therefore, defendants were entitled to judgment as
    a matter of law. 1
    We AFFIRM.
    1Plaintiff also claims that his suspension was ultra vires. According to Plaintiff, the
    superintendent of a school district “has the duty to initiate suspension or termination
    proceedings of employees,” but Plaintiff was suspended by Rodriguez, the assistant
    superintendent. However, Plaintiff does not explain why the superintendent’s duty would
    preclude the assistant superintendent from suspending employees, nor does Plaintiff suggest
    how any alleged statutory violation would give rise to a federal constitutional claim.
    6