Bolton v. City of Dallas, Tex.

• Decision Date: 07 August 2008
• Docket Number: No. 07-10999.,07-10999.
• Citation: 541 F.3d 545
• Parties: Terrell BOLTON, Plaintiff-Appellant, v. CITY OF DALLAS, TEXAS; City Manager Teodoro Benavides, In His Official Capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

541 F.3d 545

Terrell BOLTON, Plaintiff-Appellant, v. CITY OF DALLAS, TEXAS; City Manager Teodoro Benavides, In His Official Capacity, Defendants-Appellees.

No. 07-10999.

United States Court of Appeals, Fifth Circuit.

August 7, 2008.

Katherine Louise Butler (argued), Butler & Harris, Houston, TX, for Bolton.

George Allen Butler (argued), Foster J. Reese, III, Hunton & Williams, Dallas, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, CLEMENT and OWEN, Circuit Judges.

PER CURIAM:

After a remand from this court, Terrell Bolton, former police chief of the City of Dallas, Texas, again appeals from the district court's ruling and judgment that the City of Dallas is not liable, under 42 U.S.C. § 1983, for his termination by Ted Benavides, the Dallas city manager. Because we agree that, even though Benavides was the final decisionmaker, his actions in this respect were not the policy of the City and, as a result, the City is not liable for his termination of Bolton, we AFFIRM. We also DENY the respective motions of the parties as moot.

I.

In August 2003, Terrell Bolton was terminated as the Chief of Police of Dallas by Ted Benavides. Bolton filed a 42 U.S.C § 1983 suit against both Benavides and the City of Dallas, alleging that his due process rights under the Fourteenth Amendment to the United States Constitution had been violated by the termination. Bolton admitted that Benavides had the authority to remove Bolton from his position as Chief of Police but argued that Benavides did not have the authority to terminate him from the police department. Bolton relied on Chapter XII, § 5, of the Dallas City Charter ("the Charter"):

If the chief of the police department ... was selected to that position from the ranks of the police department and is removed from the position on account of unfitness for the discharge of the duties of the position, and not for any cause justifying dismissal from the service, the chief ... shall be restored to the rank and grade held prior to appointment to the position, or reduced to a lower appointive rank.

Bolton initially lost his suit in district court on summary judgment; the district court found that Bolton, as Chief of Police, had no property interest in further employment by the City and therefore could not prevail on a due process claim.

A panel of this court disagreed and held that the Charter did give Bolton a property interest "in continued employment at the rank and grade held before his appointment to the executive position." Bolton v. City of Dallas, 472 F.3d 261, 264 (5th Cir.2006). The panel also concluded, however, that Benavides was entitled to qualified immunity in his individual capacity because the precedent governing the case, Muncy v. City of Dallas, 335 F.3d 394 (5th Cir.2003), did not clearly proscribe Benavides's termination of Bolton. Bolton, 472 F.3d at 266. The panel therefore dismissed Bolton's claims against Benavides in his individual capacity and remanded the case for determination of further liability, if any. Id.

II.

Back in the district court, Benavides and the City once again moved for summary judgment. The district court granted the motion. The district court held that the only remaining claim against Benavides was in his official capacity, and therefore Bolton's suit contested only the liability of the City. It further held that the City of Dallas could not be held responsible for Benavides's actions because Benavides had frustrated the policy of the City by terminating Bolton in violation of Chapter XII, § 5, of the Charter. Bolton filed a motion for reconsideration that included several arguments not initially raised before the district court. The judge denied this motion. Bolton appealed both the grant of summary judgment in favor of Dallas and the denial of his motion for reconsideration.

III.

On appeal, Bolton argues that the discretion that Benavides had to terminate personnel makes him a policymaker for the City with respect to the employment action here. Accordingly, the City is liable for Benavides's termination of Bolton. Dallas responds that, although Benavides did have discretion to make employment decisions without the direct oversight of the city council, the policies of the City are reflected in the Charter; acts contrary to the Charter cannot be imputed to the City.¹

IV.

A.

We review the district court's grant of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.2003). Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact." FED.R.CIV.P. 56(c). "On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Coury v. Moss, 529 F.3d 579, 584 (5th Cir.2008).

B.

Municipal liability for civil rights violations under § 1983 is based on causation rather than respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The fact that a tortfeasor is an employee or an agent of a municipality is therefore not sufficient for city liability to attach; the municipality must cause the constitutional tort, which occurs "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. at 694, 98 S.Ct. 2018.

Bolton does not argue that the City has a written policy or unwritten custom that has caused him constitutional harm. Instead, he argues that the single decision and act of Benavides in terminating him constitutes the policy of the City. It is well-established that a single unconstitutional action by a municipal actor may give rise to municipal liability if that actor is a final policymaker. Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir.2005). Accordingly, this "court's task is to `identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.'" McMillian v. Monroe County, 520 U.S. 781, 784-85, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). This inquiry is specific to the particular action at issue, see id. at 785, 117 S.Ct. 1734, and depends on an analysis of relevant state and local law, see Jett, 491 U.S. at 737, 109 S.Ct. 2702.²

Our analysis must also take into account the difference between final decisionmaking authority and final policymaking authority, a distinction that this circuit recognized as fundamental in Jett v. Dallas Independent School District, 7 F.3d 1241, 1247 (5th Cir.1993). The distinction between final decisionmaker and final policymaker has its origin in two Supreme Court plurality opinions, Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Both opinions concluded that discretion to exercise a particular function does not necessarily entail final policymaking authority over that function.³ Pembaur, 475 U.S. at 483-84, 106 S.Ct. 1292; Praprotnik, 485 U.S. at 130, 108 S.Ct. 915. In Jett, we understood the decisionmaking addressed in Pembaur and Praprotnik to include decisions that were "final." 7 F.3d at 1247. We noted that neither of the Supreme Court cases made a "suggestion of any qualification such as `initial' discretion or the decisionmaker's action being subject to appeal or the like." Id. at 1247-48. And, moreover, Praprotnik states that "[w]hen an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality." Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. We held that this statement "applies even to individual decisions which are not reviewable." Jett, 7 F.3d at 1248. Thus, Jett "eschews the importance of administrative reviewability in distinguishing final decisionmaking authority from final policymaking authority." Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525, 530 (5th Cir.2006).

In Jett, we also recognized support for this position in a Seventh Circuit case, Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), and in this circuit's own precedents. See Jett, 7 F.3d at 1248. In Auriemma, the Seventh Circuit assumed that the Chicago Superintendent of Police had final, executive authority to demote police officers. Auriemma, 957 F.2d at 399. But it nevertheless held that such authority could not support municipal liability:

If it were enough to point to the agent whose act was the final one in a particular case, we would have vicarious liability. Action in the course of one's duty is the basis of vicarious liability. That a particular agent is the apex of a bureaucracy makes the decision "final" but does not forge a link between "finality" and "policy".

Id. at 400. And in this circuit, "[w]e took essentially the same approach ... where `we rejected the line of authority ... which would permit policy or custom to be attributed to the city itself by attribution to any and all officers endowed with final or supervisory power or authority.'" Jett, 7 F.3d at 1248 (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984) (en banc) (per curiam)) (second alteration in original). The finality of an official's action does not therefore automatically lend it the character of a policy.⁴ See id. at 1246; Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377, 382 n. 17 (5th Cir. 2007).

Here, where Dallas has a city council and a city manager, the state and local law show that the city manager is an...