Bevill v. Fletcher

Case: 20-40250 Document: 00516199873 Page: 1 Date Filed: 02/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 11, 2022
No. 20-40250 Lyle W. Cayce
Clerk
Terry Bevill,
Plaintiff—Appellee,
versus
Jeffrey Fletcher; Thomas Castloo, Wood County
Sheriff; James Wheeler, Former Wood County District
Attorney,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-406
Before Davis, Stewart, and Oldham, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Plaintiff-Appellee Terry Bevill alleged he was fired from the Quitman
Police Department (“QPD”) in retaliation for making unflattering
statements about Defendants-Appellants Wood County Sheriff Tom
Castloo, Wood County District Attorney James Wheeler, and Texas Judge
Jeff Fletcher (collectively, “Defendants”). On motions to dismiss, the
district court held that Defendants were not entitled to qualified immunity
on Bevill’s claim brought under 42 U.S.C. § 1983 for conspiracy to commit
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retaliatory employment termination. It also concluded that Bevill plausibly
averred that Defendants formed an agreement to violate one of his
constitutional rights. This interlocutory appeal followed.
For the reasons that follow, we AFFIRM.
I. BACKGROUND & PROCEDURAL HISTORY
On April 19, 2017, the Kilgore News Herald published an article in
which Fletcher, who had recently been elected as a state judge, noted his
excitement about working together with Castloo and Wheeler. In the article,
Fletcher also “emphasized the importance of [he, Castloo, and Wheeler]
staying in line and working in unison toward the same goals.” Two months
later, Bevill, then captain of QPD, filed an affidavit supporting a venue
transfer for the criminal trial of former Wood County Jail Administrator
David McGee. The affidavit, which was filed at the request of McGee’s
lawyer, stated that McGee would not receive a fair trial in Wood County for
facilitating the escape of an inmate and tampering with government records
because of the close personal relationships among Defendants. Specially, the
affidavit stated that “[a]s a longtime resident and law enforcement officer in
the Wood County area, Bevill was familiar with the local players and political
climate, including the relationships between and among the sheriff, district
attorney and judge.” Bevill did not sign the affidavit in his capacity as an
officer of QPD. Nor did Bevill “[speak] with anyone [at QPD] about the
affidavit prior to signing [it].”
After learning about Bevill’s affidavit, Defendants approached
Quitman’s mayor, David Dobbs, to discuss Bevill’s continued employment
with QPD. During that discussion, Defendants threatened to withhold
resources from Quitman and support for QPD if Bevill was not fired because
of his affidavit. Dobbs then pressured QPD Police Chief Kelly Cole to fire
Bevill because of Defendants’ threat. After initially objecting to Bevill’s
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termination, Cole placed Bevill on administrative leave and investigated
whether Bevill violated any city or QPD policies. The investigation
concluded that Bevill violated city policies that bar members of QPD from
“seek[ing] to obtain any continuance of any trial in court out of friendship for
the Defendant or otherwise interfere with the courts of justice” and
“conduct[ing] themselves in a manner which . . . discredit[s] the Peace
Officer profession or their employing agency.” Cole then fired Bevill. Cole,
along with Quitman’s city secretary, Gregg Hollen, later told the Texas
Workforce Commission that the decision to terminate Bevill was based in
part on Wheeler’s threat to not “take any more cases from the City of
Quitman” unless Bevill was fired.
Following Bevill’s termination, all Defendants attended a Quitman
City Council meeting during which Castloo told the Council that “I
understand you have taken some steps” regarding Bevill’s affidavit yet
“more steps need to be taken.” Castloo also implored the Council “to do
more to provide support to the [Wood County] DA’s office, the [Wood
County] Sheriff’s office and . . . [Judge Fletcher’s] office in this matter.”
McGee’s case was never transferred, and a jury found him guilty.
After McGee’s criminal trial concluded, Fletcher issued a warrant for
Bevill’s arrest for perjury, but the charge was later dismissed. Bevill averred
that while the perjury charges were pending, Fletcher placed “extreme and
unreasonable conditions” on Bevill’s bond for the perjury charge, including
(1) turning over his firearms, (2) submitting to drug testing every two weeks
at personal cost to Bevill, (3) obtaining written permission from Wood
County officials or Judge Fletcher before leaving the county, (4) reporting to
Wood County officials every two weeks, and (5) abstaining from the
consumption of alcohol. He also alleged that Wheeler “refused to bring [his
perjury] case before a grand jury in an effort to prolong the pending criminal
action as long as possible in retribution for the affidavit.”
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In the operative complaint, Bevill sued (1) Quitman and Dobbs under
§ 1983 for terminating his employment in retaliation for his affidavit; (2)
Quitman, Dobbs, and Defendants under § 1983 for conspiring to terminate
his employment in retaliation for his affidavit; (3) Wood County and Castloo
under § 1983 for unconstitutional oppression, intimidation, and retaliation;
and (4) Wood County and Defendants for conspiring to arrest and prosecute
Bevill in retaliation for his affidavit. Castloo and Wheeler filed one motion to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), while
Fletcher filed another. The district court concluded Defendants were not
entitled to qualified immunity on Bevill’s § 1983 claim for conspiracy to
commit retaliatory employment termination. It also determined that Bevill
plausibly averred that Defendants formed an agreement to violate his First
Amendment rights.
Defendants timely noticed an interlocutory appeal. 1
II. STANDARD OF REVIEW
The court has appellate jurisdiction to review a district court’s order
denying a motion to dismiss on the basis of qualified immunity “only to the
extent that the appeal concerns the purely legal question [of] whether the
defendants are entitled to qualified immunity on the facts[.]” Armstrong v.
Ashley, 918 F.3d 419, 422 (5th Cir. 2019) (alteration in original) (quoting
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc)). The court
also has jurisdiction to review the sufficiency of a complaint on interlocutory
appeal when that issue is “inextricably intertwined” with the denial of
qualified immunity. Ashcroft v. Iqbal, 556 U.S. 662, 673–74 (2009) (quoting
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995)).
1
The district court’s disposition of Bevill’s other claims are not subjects of this
appeal.
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When the court has jurisdiction, it reviews de novo the district court’s
denial of a motion to dismiss on qualified immunity grounds or for failing to
state a claim, accepting all well-pleaded facts as true and viewing them in the
light most favorable to the plaintiff. Brown v. Miller, 519 F.3d 231, 236 (5th
Cir. 2008); Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010).
A plaintiff seeking to overcome a motion to dismiss because of qualified
immunity or for failing to state a claim must plead facts that allow the court
to draw the reasonable inference that the defendant is liable for the harm
alleged. Arnold v. Williams, 979 F.3d 262, 266–67 (5th Cir. 2020). The alleged
facts must also “defeat a qualified immunity defense with equal specificity.”
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
III. DISCUSSION
“To state a claim for conspiracy under § 1983, a plaintiff must allege
the existence of (1) an agreement to do an illegal act and (2) an actual
constitutional deprivation.” Whisenant v. City of Haltom, 106 F. App’x 915,
917 (5th Cir. 2004) (per curiam) (citing Cinel v. Connick, 15 F.3d 1338, 1343
(5th Cir. 1994)). If qualified immunity bars Bevill’s underlying First
Amendment claim, “there [is] no need to reach the issue of whether a
conspiracy existed to engage in those actions.” See Hale v. Townley, 45 F.3d
914, 921 (5th Cir. 1995). Thus, we will begin with a discussion of whether
Defendants are entitled to qualified immunity.
“Once a defendant raises a qualified-immunity defense, the burden
shifts to the plaintiff to show that (1) the official violated a statutory or
constitutional right, and (2) the right was ‘clearly established’ at the time.”
Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019) (quoting Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)).
As an initial matter, Bevill argues that Defendants are not entitled to
qualified immunity because they were not acting within the scope of their
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discretionary authority when they threatened to withhold resources from
Quitman and support for QPD. Per Cherry Knoll, L.L.C. v. Jones, 922 F.3d
309, 318 (5th Cir. 2019), Defendants “must first satisfy [their] burden[s] of
establishing that the challenged conduct was within the scope of [their]
discretionary authority.” Id. at 318. “Once the defendant[s] establish[] that
the challenged conduct was within the scope of [their] discretionary
authority, the burden then shifts to the plaintiff to rebut the qualified
immunity defense.” Id. Officials act within the scope of their discretionary
authority when they “perform[] non-ministerial acts within the boundaries
of [their] official capacit[ies].” Id. (quoting Cronen v. Tex. Dep’t of Hum.
Servs., 977 F.2d 934, 939 (5th Cir. 1992)).
Bevill averred that Defendants threatened to withhold resources from
Quitman and support for QPD if Bevill was not fired because of his affidavit.
Bevill alleged that this threat ultimately resulted in Bevill’s termination.
Bevill’s theory of the case would be completely undermined if Defendants
did not possess the discretionary authority to restrain the flow of these
resources. Considering the merit of his argument nonetheless, Bevill has not
shown that Defendants were acting outside of the scope of their discretionary
authority when they discussed with Dobbs withholding resources from
Quitman and support for QPD. Defendants, in their positions as sheriff,
district attorney, and state judge, respectively, were responsible for allocating
resources within the boundaries of Wood County, which includes Quitman
and its police department. For instance, Wheeler contends that he was
“authorized to direct resources such as assistant district attorneys and
investigators to specific matters at his discretion” and to enter into
agreements with QPD for the transfer of forfeited property. Moreover,
Castloo asserts that he had the discretion to allocate law enforcement
services to support QPD. And Fletcher contends that he had numerous
administrative responsibilities, including overseeing county courts and local
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departments of correction. Thus, each of the Defendants is entitled to assert
a defense of qualified immunity.
A. Violation of a Constitutional Right
Next, we assess whether Bevill has adequately pled facts supporting
the first prong of the qualified immunity analysis: a violation of his
constitutional rights. We determine that he has done so.
Bevill claimed that Defendants caused Cole to fire him in retaliation
for exercising a First Amendment right through submitting the affidavit. To
establish a First Amendment retaliatory-discharge claim, Bevill must prove
that (1) he suffered an adverse employment decision, (2) he spoke as a citizen
on a matter of public concern, (3) his interest in the speech outweighs the
government’s interest in the efficient provision of public services, and (4) the
protected speech motivated the adverse employment action. Nixon v. City of
Houston, 511 F.3d 494, 497 (5th Cir. 2007). Defendants only dispute the
sufficiency of Bevill’s allegations as to the second and third elements.
“When a citizen enters government service, the citizen by necessity
must accept certain limitations on his or her freedom.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006). “This is because the public employer, like any
principal, has an interest in controlling the activities of its agents[,]”
including employee speech that “contravene[s] [the public employer’s]
policies or impair[s] the proper performance of [its] functions.” Anderson v.
Valdez, 845 F.3d 580, 593 (5th Cir. 2016) (alterations in original) (quoting
Garcetti, 547 U.S. at 419). “Even if the employer has such an interest,
however, that interest must still be balanced against the employee’s own
interests: ‘[A] citizen who works for the government is nonetheless a citizen,’
and ‘[t]he First Amendment limits the ability of a public employer . . . to
restrict, incidentally or intentionally, the liberties employees enjoy in their
capacities as private citizens.’” Id. (alterations in original) (quoting Garcetti,
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547 U.S. at 419). “The importance of public employee speech is especially
evident in the context of . . . public corruption” since “speech by public
employees regarding information learned through their employment” is the
“very kind of speech necessary to” reveal malfeasance among public
officials. See Lane v. Franks, 573 U.S. 228, 240–41 (2014).
To strike a balance of interests, the Supreme Court has directed lower
courts to determine whether a public employee has made a statement
“pursuant to [his or her] official duties.” Garcetti, 547 U.S. at 421. 2 If the
employee has done so, the speech is not protected under the First
Amendment. See id. at 421–22. But if the employee has not, then the speech
is protected. See id.The alleged facts suggest that Bevill did not write his affidavit
pursuant to an official duty. Bevill voluntarily submitted the affidavit as a
friend of McGee. He alleged that he was never asked to and did not sign the
affidavit in his capacity as an officer of QPD. He did not speak to anyone at
QPD about the affidavit before signing it. Although Bevill may have learned
about potential bias in McGee’s upcoming trial through his work as a
policeman, that “does not transform that speech into employee—rather than
2
Lane states that “[t]he critical question under Garcetti is whether the speech at
issue is itself ordinarily within the scope of an employee’s duties . . . .” 573 U.S. at 240
(emphasis added). Although Lane “added ‘ordinarily’ to the formulation used in
Garcetti . . . , we have since noted that, ‘whatever change in the jurisprudence “ordinary”
may augur, we are unable to discern any change in Garcetti’s rule from
Lane . . . .’”Anderson, 845 F.3d at 596 (quoting Gibson v. Kilpatrick, 773 F.3d 661, 669 (5th
Cir. 2014)).
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citizen—speech.” See Lane, 573 U.S. at 240. 3 To be sure, Defendants
correctly note that Bevill “prominently presented [his] job title in his motion
to transfer affidavit directly after stating his name,” thereby giving his
affidavit the imprimatur of his position. But that demonstrates Bevill’s
knowledge of the close personal relationships among Defendants, not that he
spoke according to an official duty. Similarly, his belief that McGee could not
receive a fair trial in Wood County was allegedly “[b]ased on his years
working in law enforcement.” Perhaps for these reasons, Defendants observe
that “[s]ubmitting an affidavit such as this might not have been a part of
[Bevill’s] normal duties.”
3
Defendants’ attempts to distinguish Lane are unpersuasive. First, Defendants
argue that “Lane’s speech was pursuant to a subpoena[,] which the Court found put him
in an impossible position[,]” while Bevill “volunteered his services to assist one specific
criminal defendant.” But Defendants read Lane too narrowly. Lane held that “[t]ruthful
testimony under oath by a public employee outside the scope of his ordinary job duties is
speech as a citizen for First Amendment purposes.” 573 U.S. at 238. Here, too, Bevill
submitted a sworn statement. Whether Bevill submitted such a statement voluntarily or
under pain of punishment is not decisive, given that the policy rationale underlying Lane is
to incentivize public employees to come forward with truthful information about
corruption among public officials. Cf. Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 990 (3d
Cir. 2014) (“While Lane focused on speech in the context of compelled testimony, see
[Lane, 573 U.S. at 238–39], Appellants’ argument that its holding is limited to that context
is misguided.”) (citing Mpoy v. Rhee, 758 F.3d 285, 294–95 (D.C. Cir. 2014)). Indeed,
“[t]he Supreme Court’s focus on sworn testimony was in response to the ‘short shrift’ the
Eleventh Circuit gave to that speech.” Id. (quoting Lane, 573 U.S. at 238). Defendants next
contend that Lane is inapplicable because Bevill simply provided “unsubstantiated [read:
untruthful] statements regarding his friend’s inability to obtain a fair trial.” But, as noted,
at this preliminary stage of the proceedings, the court must take Bevill’s allegations of bias
as true. Finally, Defendants assert that “Lane’s employer did not have a policy that
reasonably prevented him” from speaking, while Quitman did in this case. The effect of
Quitman’s policies on the disposition of this appeal is discussed below. In any event, the
policy rationale underlying Lane applies here too. “There is considerable value . . . in
encouraging, rather than inhibiting, speech by public employees.” Lane, 573 U.S. at 236.
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Nevertheless, Defendants assert “there is a reason” that explains why
Bevill’s conduct exceeded his duties. They argue that Bevill still spoke in the
capacity of an employee, rather than a citizen, because city policies prevented
him from submitting the affidavit. In Anderson, upon which Defendants rely
in support of their argument, the court observed that “[a] public
employee . . . might speak pursuant to his official duties when he does so in a
course of conduct subject to the employer’s control, even if the employer has
not actually directed him to speak, not to speak, or how to speak.” 845 F.3d
at 596. Because city policies controlled Bevill’s right to submit an affidavit
regardless of whether he voluntarily submitted it, Defendants assert, he
spoke pursuant to an official duty and therefore has no viable cause of action.
We are not convinced that Anderson’s admonition regarding employer
control applies here. Anderson cites “[t]he circumstances in Garcetti” to
“illustrate this focus on whether the employer was entitled to exercise
control.” Id. There, a district attorney’s office disciplined an employee for
speech made pursuant to his official duties as a prosecutor. Garcetti, 547 U.S.
at 421. “The speech, a memorandum, was made for the benefit of the
employer. It was, in essence, the employer’s speech, not the employee’s
own. The employer, not the employee, was entitled to control it.” Anderson,
845 F.3d at 596. The Court concluded that “[r]estricting speech that owes
its existence to a public employee’s professional responsibilities does not
infringe any liberties the employee might have enjoyed as a private citizen. It
simply reflects the exercise of employer control over what the employer itself
has commissioned or created.” Garcetti, 547 U.S. at 421–22. Thus, for
speech to be subject to the employer’s “control” for present purposes, it
must “owe[] its existence to” the “public employee’s professional
responsibilities,” id., or otherwise be “for the benefit of the employer,”
Anderson, 845 F.3d at 596.
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Bevill did not speak for QPD’s benefit when he submitted an affidavit
on McGee’s behalf, and his speech did not owe its existence to QPD. It
follows that Bevill’s affidavit was not subject to QPD’s control in the relevant
sense, and he therefore spoke as a private citizen, not a public employee.
Contrary to Defendants’ argument, Quitman’s policy supports this view
because it underscores that Bevill’s conduct conflicted with his employer’s
objectives. Bevill’s speech could not have benefited QPD when, according to
Defendants, the speech violated official policy and disparaged local officials.
Cf. Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 988 (3d Cir. 2014) (stating
that “nothing about [a public employee’s] position compelled” him to speak
when his employer “appear[ed] to discourage such speech through its Code
of Ethics’ confidentiality provision, which [was] being used to justify [the
employee’s] termination”) (emphasis in original). Indeed, Defendants
observe that Bevill disrupted QPD’s operations and possibly “tarnish[ed] the
image of the City and [QPD]” “by injecting himself into a criminal trial and
disparaging the only district judge, district attorney, and sheriff in Wood
County.” Bevill could not have acted for the benefit and subject to the control
of his employer when he engaged in speech against his employer’s interest.
But even assuming QPD somehow controlled Bevill’s speech, that
fact alone is not dispositive. First, Anderson notes that the ability of the
employer to control the employee’s speech “might” affect the determination
of whether the employee spoke pursuant to his official duties, not that it
must. Id. Furthermore, Anderson derives this “insight” into the contours of
“official duties” from the Restatement (Third) of Agency, 845 F.3d at 596,
which in turn states that “[i]f an employee commits a tort . . . while acting
within a course of conduct subject to the employer’s control, the employee’s
conduct is within the scope of employment unless the employee was engaged
in an independent course of conduct not intended to further any purpose of
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the employer.” Restatement (Third) of Agency § 7.07 (2006)
(emphasis added).
Through submitting the affidavit, Bevill sought on his own accord to
help a friend outside of the workplace. He did not inform anyone at QPD that
he intended to submit the affidavit. This kind of activity, which has “an
analogue to speech by citizens who are not public employees,” is protected
by the First Amendment. See Anderson, 845 F.3d at 594, 597 (holding that a
law clerk’s formal complaints against a judge to a state commission were
protected speech since the speech was “‘the kind of activity engaged in by
citizens’—including licensed lawyers—‘who do not work for the
government’”); see also Howell v. Town of Ball, 827 F.3d 515, 524 (5th Cir.
2016) (holding that a police officer’s statements made to the FBI were
protected speech since they “were made outside the normal chain of
command and without the knowledge or permission of anyone else in the
police department”), cert. denied sub nom, Town of Ball v. Howell, 137 S. Ct.
815 (2017); Kristofek v. Vill. of Orland Hills, 832 F.3d 785 (7th Cir. 2016)
(finding protected speech where a police officer reported official misconduct
to the FBI and where the reported misconduct extended beyond the police
department and included higher-level political corruption in city
government).
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In sum, we conclude that Bevill has plausibly averred a deprivation of
his First Amendment rights. 4
B. Clearly Established Right
Given our conclusion that Bevill has adequately pled a violation of his
constitutional rights, we must now consider whether the First Amendment
right at issue was clearly established at the time it was infringed. We hold that
it was.
“The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Lytle v. Bexar Cnty.,
560 F.3d 404, 410 (5th Cir. 2009) (quotation omitted). “Answering in the
affirmative requires the court to be able to point to controlling authority—or
a robust consensus of persuasive authority—that defines the contours of the
right in question with a high degree of particularity.” Wyatt v. Fletcher, 718
F.3d 496, 503 (5th Cir. 2013) (citation and internal quotation marks omitted).
Defendants argue that the law was not clearly established that “any
person other than the ultimate decision-maker could be liable for First
Amendment retaliatory termination,” until this court issued its opinion in
Sims v. City of Madisonville, 894 F.3d 632 (5th Cir. 2018). According to
4
As indicated by this court’s decision in Anderson, the analysis above is enough to
conclude that Bevill has adequately pled both the second and third elements of his First
Amendment retaliation claim. That said, our conclusion that Bevill has shown that his
interest in the affidavit outweighs the government’s interest is further buttressed by the
realization that Defendants raise hypothetical, not actual, effects of Bevill’s speech on the
ability of Quitman to provide public services. But “[r]eal, not imagined, disruption is
required.” See Branton v. City of Dallas, 272 F.3d 730, 741 (5th Cir. 2001) (quoting
McKinley v. City of Eloy, 705 F.2d 1110, 1115 (5th Cir. 1983)). Regardless, if Defendants had
identified actual effects, Fifth Circuit precedent indicates that testimony about potential
malfeasance in Texas’s criminal justice system “outweigh[s] the government’s interest in
efficiency.” See Breaux v. City of Garland, 205 F.3d 150, 157 n.10 (5th Cir. 2000).
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Defendants, because their purported unconstitutional conduct occurred a
year before this court issued the Sims decision, they are entitled to qualified
immunity. The district court determined that Sims settled a question distinct
from the one posed here—namely, whether a supervisor/coworker of the
plaintiff can be held liable for influencing a final decisionmaker to terminate
the plaintiff’s employment. The district court went on to explain that another
case, Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc), clearly
established that Defendants were not unfettered by the First Amendment,
long before Defendants allegedly retaliated against Bevill.
In Sims, the plaintiff, a police officer, reported his supervisor’s illegal
conduct to the Texas Rangers. 894 F.3d at 636. Shortly thereafter, the
supervisor met with the police chief, who in turn placed the plaintiff on
probation for an unrelated reason before ultimately terminating him. Id. at
636–37. The plaintiff claimed that his supervisor was liable for improperly
influencing the police chief’s decision to fire him. Id. at 637. Noting there was
confusion in the caselaw on “whether someone who is not a final
decisionmaker and makes a recommendation that leads to the plaintiff being
harmed can be liable for retaliation,” this court clarified that a
supervisor/coworker of the plaintiff could still be liable for First Amendment
retaliation claims even though the supervisor/coworker did not have the
power to terminate the plaintiff’s employment. Id. at 638–39. Specifically,
this court summarized its holding as follows: “If an individual defendant’s
animus against a coworker’s exercise of First Amendment rights is a link in
the causal chain that leads to a plaintiff’s firing, the individual may be liable
even if she is not the final decisionmaker.” Id. at 639 (citations omitted).
In Kinney, a pair of instructors at the East Texas Police Academy, a
division of Kilgore College, testified against an officer who fatally shot a
teenager. 367 F.3d at 341–42. Heads of police departments in East Texas,
who provided most of the officers to the academy for training, then refused
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to send their officers to the academy as long as the instructors continued
teaching there. Id. at 342–43. In response, one of the instructors resigned,
while the other instructor was let go. Id. at 345. Both instructors sued the
department heads for First Amendment retaliation. Id. at 345–46. The
department heads argued that they could not be held responsible for the
instructors’ employment outcomes because only the college organizing the
academy could terminate its employees. Id. at 357. This court rejected that
argument, holding “that it would [not] have been reasonable for officers in
[the defendants’] positions to believe that they were unfettered by the First
Amendment merely because their economic relationship with [the plaintiffs]
was non-employment and non-contractual.” Id. at 368.
We agree with the district court that Sims settled the question whether
a supervisor/coworker of the plaintiff can be held liable for First Amendment
retaliation under § 1983 for influencing a final decisionmaker to terminate the
plaintiff’s employment. That question is distinct from the one posed here—
whether a governmental official, not a supervisor/coworker of the plaintiff,
can be held liable for First Amendment retaliation under § 1983 for
influencing the plaintiff’s employer to terminate the plaintiff’s employment.
Sims’ discussion of the uncertainty in the caselaw regarding non-final
decisionmakers supports the district court’s reading of the case. According
to the Sims court, “the seeds of confusion” as to liability for non-final
decisionmakers were “unwittingly planted” when the Fifth Circuit rendered
its decision in Beattie v. Madison County School District, 254 F.3d 595 (5th Cir.
2001). 894 F.3d at 640. “[T]he focus of the appeal [in Beattie] was on the
question of municipal liability, which attaches only if final decisionmakers are
liable.” Id. (citing Beattie, 254 F.3d at 602). Later cases misread Beattie for
the proposition that only final decisionmakers may be liable for First
Amendment retaliation. See id. at 640–41. But, like Beattie, they did so in the
context of potential liability for a non-final decisionmaker who persuaded a
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higher authority to fire the plaintiff. See, e.g., Culbertson v. Lykos, 790 F.3d
608, 627 (5th Cir. 2015) (discussing liability for an assistant district attorney
who influenced a county commissioners court’s decision to sever relations
with the plaintiffs’ employer, which resulted in the plaintiffs’ termination); 5
Howell, 827 F.3d at 526 (discussing liability for a police chief who influenced
a board of alderman to terminate the plaintiff); 6 Pennypacker v. City of Pearl,
689 F. App’x 332, 332 (per curiam) (5th Cir. 2017) (discussing liability for an
employee of a golf course who influenced a board of alderman to fire the
plaintiff).
Sims “provid[ed] the overdue clarification” in this area by explaining
that a case decided prior to Beattie and its progeny, Jett v. Dallas Independent
School District, 798 F.2d 748, 758 (5th Cir. 1986), controlled. Sims, 894 F.3d
at 641. Jett required that a school athletic director needed only to “establish
an affirmative causal link between” a principal’s recommendation to the
5
In Texas, where the events of Culbertson took place, the county commissioners
court determines the budget for the district attorney’s office, which includes approval of
contracts for certain services. See Culbertson, 790 F.3d at 615–16. Thus, that court is a
higher authority vis-à-vis the assistant district attorney.
6
Howell may differ from this case on the question whether the defendants violated
a clearly established right, but it remains no less persuasive as to whether Bevill suffered a
deprivation of that right in the first instance.
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district, i.e., higher authority, that it reassign the director to another position
and the district’s decision to do so. See 798 F.2d at 758. 7
Returning to the case at bar, the district court concluded that Sims was
inapplicable because it dealt with “retaliatory employment termination in the
context of an employment relationship,” i.e., all parties were employed by
the same governmental agency. The district court determined that Kinney
instead controlled because it “contemplated the situation in which a
government [official], because of retaliatory animus, uses his or her position
to influence a third-party employer to terminate one of its employees for
exercising his or her First Amendment rights.” Applying Kinney, the district
court concluded that Defendants “had ‘fair warning’ that allegedly using
their respective government positions to violate Plaintiff’s First Amendment
rights would be objectively unreasonable in light of clearly established law at
the time.” We agree with the district court that Kinney controls. The factual
distinctions between Kinney, Sims, and the present action are perhaps most
easily recognized with reference to a series of simple diagrams:
7
Sims also opines that cases following Beattie have mistakenly “imposed a
causation standard that is more stringent than Jett’s ‘but-for’ standard for nonfinal
decisionmakers.” 894 F.3d at 640 (citing, as examples, DePree v. Saunders, 588 F.3d 282,
288 (5th Cir. 2009), and Whiting v. Univ. of S. Miss., 451 F.3d 339, 351 (5th Cir. 2006)).
Underlying this error is the incorrect conclusion that the “cat’s paw” theory of liability,
which holds that an employee’s unlawful conduct may be imputed to his or her employer,
may also be used to ascribe liability the other way around. See id. at 640–41. Given the flow
of liability from an employee to an employer under the cat’s paw theory, misapplications of
the theory could only have occurred within decisions that addressed a subordinate who
affected a higher authority’s decision-making. This demonstrates that Sims clearly
established a different right than the one at issue here, specifically the right of a plaintiff to
be free from a non-final decisionmaker retaliating against him or her by influencing a higher
authority to take adverse action against the plaintiff.
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Fletcher asserts that the district court erred in concluding that Kinney,
rather than Sims, controlled since this court’s opinion in Kinney does not
draw a distinction between liability for those who convince a higher authority
to terminate a plaintiff and those who do not. But that does not mean the
district court erred in holding that Kinney applied to situations like Bevill’s
while Sims was inapplicable. Notably, Sims nor the cases discussed therein
(with one exception) address Kinney. The one outlier, Culbertson, discusses
Kinney but not in the context of qualified immunity. 790 F.3d at 617–19, 621,
623. Once again, this shows that Sims clearly established a different right than
the one litigated here.
Fletcher further contends that Kinney merely establishes that
employees enjoy at least “some First Amendment protections against
government retaliation for their testimony.” But Fletcher’s argument is
belied by his own assertion that the Supreme Court, even prior to Kinney, has
“repeatedly told courts . . . not to define clearly established law at a high level
of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015). Hence, a fairer reading
of Kinney is that it clearly establishes the right of a plaintiff to be free from
governmental officials’ exerting their power or influence over a third-party
employer to cause the plaintiff to be terminated for exercising his First
Amendment rights.
For their part, Castloo and Wheeler argue that Kinney is
distinguishable because the police department heads in that case were
actually final decisionmakers, not non-final decisionmakers that convinced
another party to take adverse action against the plaintiff. But the police
department heads argued that they could not be held liable because “their
conduct did not deny [the instructors] the benefit of employment [since the]
[c]ollege, and not the [department heads], held the authority to refuse to
renew [the instructors’] contracts.” Kinney, 367 F.3d at 357. The police
department heads claimed that they “possess[ed] final authority over”
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whether their officers would train at the police academy, not whether they
could fire the plaintiffs. Id. at 341. Accordingly, Castloo and Wheeler have
misread Kinney.
Changing tack, Castloo and Wheeler also assert that both Oscar Renda
Contracting, Inc. v. City of Lubbock, 463 F.3d 378 (5th Cir. 2006), and Juarez
v. Aguilar, 666 F.3d 325 (5th Cir. 2011), indicate Kinney was one case in the
long line of decisions that left the right at issue here unresolved until Sims.
While both cases consider Kinney, Oscar Renda does not do so within the
context of qualified immunity, 463 F.3d at 382–83, and Juarez does not do so
in determining whether the right at issue was clearly established, 666 F.3d at
335–36. Consequently, Castloo and Wheeler’s reliance on Oscar Renda and
Juarez is also misplaced.
Castloo and Wheeler additionally cite to Clarkston v. White, 943 F.3d
988 (5th Cir. 2019), in support of their argument that Sims first clearly
established the right at issue here. Although Clarkston discusses Sims, 943
F.3d at 993 n.5, it also addresses a situation in which the plaintiff was
allegedly retaliated against by an individual that influenced a higher
authority’s decision to harm the plaintiff. Id. at 991–92. Hence, Clarkston
actually provides support for the conclusion that Sims addressed a right
different than the one at issue here.
In sum, the district court correctly determined that Bevill’s First
Amendment right was clearly established at the time it was violated.
C. Conspiracy
Because Bevill has shown that Defendants are not entitled to qualified
immunity, we must determine whether he has stated a claim for conspiracy
under § 1983. We conclude that he has done so.
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Fletcher argues that Bevill has not sufficiently alleged that Fletcher
was personally involved in or caused any violation of Bevill’s First
Amendment rights. However, “[a] conspiracy may be charged under section
1983 as the legal mechanism through which to impose liability on all of the
defendants without regard to who committed the particular act . . . .”
Latiolais v. Cravins, 484 F. App’x 983, 989 (5th Cir. 2012) (per curiam)
(quoting Hale, 45 F.3d at 920). Hence, “[r]egardless of whether or not
[Fletcher’s] actions alone actually caused a constitutional violation, liability
can still be imposed on [Fletcher’s] alleged membership in [a] conspiracy.”
See id. at 991. The question, then, is whether Bevill adequately averred that
Defendants had an agreement to violate his constitutional rights under the
color of state law.
Defendants assert that Bevill has pled conclusory allegations in
support of his claim that they had such an agreement. Bevill, on the other
hand, contends that Fletcher’s statements made in the April 2017 Kilgore
News Herald article and Bevill’s own “familiar[ity] with the local players and
political climate, including the relationships between and among the sheriff,
district attorney and judge” together imply that Defendants “were close and
often worked in concert.” These allegations, joined with Bevill’s description
of Defendants’ joint meeting with Mayor Dobbs imploring him to cause
Bevill to be terminated, “raise[] a suggestion of a preceding agreement, not
merely parallel conduct that could just as well be independent action.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Fletcher’s reliance on Montgomery v. Walton, 759 F. App’x 312 (5th
Cir. 2019) (per curiam), and Jabary v. City of Allen, 547 F. App’x 600 (5th
Cir. 2013), in support of his argument fails to warrant a different conclusion
since both cases are readily distinguishable. In Montgomery, the plaintiff failed
to adequately allege a “common motive” for why the purported co-
conspirators targeted him. 759 F. App’x at 315. Bevill, on the other hand, pled
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facts plausibly indicating that Defendants retaliated against him to protect
their reputations. Furthermore, the connection among the alleged co-
conspirators in Montgomery was “unclear from the face of the” operative
complaint. Id. But, as discussed above, Bevill sufficiently averred that
Defendants worked closely with one another.
As to Jabary, the plaintiff there merely pled that the alleged co-
conspirators attended “private meetings” and had “secret conversations”
during which the co-conspirators discussed depriving the plaintiff of his
constitutional rights. 547 F. App’x at 611. In contrast, Bevill has averred the
contents of Defendants’ discussion with Dobbs, which entailed threats to
withhold resources from Quitman and support for QPD. As Jabary observes,
a plaintiff’s § 1983 conspiracy claim need not satisfy “a ‘probability
requirement at the pleading stage; [plausibility] simply calls for enough
fact[s] to raise a reasonable expectation that discovery will reveal evidence of
illegal agreement.’” Id. at 610 (alterations in original) (quoting Twombly, 550
U.S. at 556). That minimum standard has been met here.
IV. CONCLUSION
For the foregoing reasons, the order of the district court denying
Defendants’ motions to dismiss is AFFIRMED.
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Andrew S. Oldham, Circuit Judge, dissenting:
All agree that Terry Bevill must overcome qualified immunity to sue
these defendants for First Amendment retaliation. Ante, at 6–7. And all agree
that Bevill cannot overcome qualified immunity unless “the court [can] point
to controlling authority—or a robust consensus of persuasive authority—
that defines the contours of the right in question with a high degree of
particularity.” Id. at 13 (quoting Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir.
2013)).
The majority finds the requisite authority in Kinney v. Weaver, 367
F.3d 337, 347 (5th Cir. 2004) (en banc). Yet it takes the majority seven pages
of writing—plus one page of elegant geometric diagramming—to explain
how Kinney clearly established the right the defendants allegedly violated.
Ante, at 13–20. And never mind that Sims v. City of Madisonville, 894 F.3d
632 (5th Cir. 2018), which we decided shortly after the events giving rise to
this case, described the law in this area as “confus[ed]” and “unsettled”
before trying to “provide the overdue clarification.” Id. at 638, 640–41.
Whatever one might think about qualified immunity, I think we’re
duty bound to say the law is not clearly established when it takes a full-page
flow chart to hold otherwise. I respectfully dissent.
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