Harmon v. Dall. Cnty.

• Citation: 294 F.Supp.3d 548
• Decision Date: 20 February 2018
• Docket Number: Civil Action No. 3:13–CV–2083–L
• Parties: Norvis HARMON, Plaintiff, v. DALLAS COUNTY, TEXAS and Derick Evans, Defendants.
• Court: U.S. District Court — Northern District of Texas

294 F.Supp.3d 548

Norvis HARMON, Plaintiff,

v.DALLAS COUNTY, TEXAS and Derick Evans, Defendants.

Civil Action No. 3:13–CV–2083–L

United States District Court, N.D. Texas, Dallas Division.

Signed February 20, 2018

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, TX, for Plaintiff.

Tammy Jean Ardolf, Dolena T. Westergard, Dallas County District Attorney's Office, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Sam A. Lindsay, United States District Judge

Before the court is Defendant Derick Evans's Motion for Summary Judgment (Doc. 57), filed April 26, 2017. After considering the motion, briefs, pleadings, and evidence, the court grants Defendant Derick Evans's Motion for Summary Judgment (Doc. 57) and dismisses with prejudice Plaintiff's claim against Derick Evans ("Evans") in his individual capacity based on Plaintiff Norvis Harmon's ("Plaintiff" or "Harmon") alleged right to petition or appeal the termination of his employment, whether premised on retaliation in violation of the First Amendment's Petition Clause, denial of equal protection, or violations of state and local law ("Petition Claim").

Because the court's ruling rests in part on its determination as to which claims by Plaintiff are before the court and remain after the court's March 31, 2017 memorandum opinion and order, the court addresses in detail the allegations in Plaintiff's pleadings regarding Plaintiff's Petition Claim and how this claim, which was originally pleaded as a constitutional claim involving the denial of equal protection, morphed and expanded over the course of this litigation into a constitutional claim for alleged violations of the First Amendment right to petition, and, most recently, into a claim encompassing alleged violations of Plaintiff's statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86. For the reasons herein explained, the court determines that Plaintiff's Petition Claim, brought pursuant to 42 U.S.C. § 1983, is either not properly before the court because it was not included in Plaintiff's pleadings, was abandoned by Plaintiff, or fails as a matter of law, regardless of whether it is characterized as a claim based on the denial of equal protection, retaliation in violation of the First Amendment's Petition Clause, or violations of statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86.

I. Factual and Procedural Background

Harmon brought this action against Defendants Dallas County, Texas ("Dallas County" or "the County") and former Dallas County Constable Evans (collectively, "Defendants") on June 3, 2013. Harmon was previously employed by Dallas County in Constable Office, Precinct 1, as a deputy constable. His employment was terminated on June 3, 2011. The termination of his employment is the subject of this lawsuit, as well as a prior state court action filed by Harmon and two other deputy constables against Dallas County on September 9, 2011, in the 44th Judicial District Court, Dallas County, Texas.

In the state court action, Harmon and the other plaintiffs asserted claims for alleged violations of the Texas Whistleblower Act ("TWA") and Texas Local Government Code § 617.004, and an equal protection claim for alleged violations of the Texas Constitution. On March 28, 2012, the Whistleblower claim, equal protection claim, and claim for alleged violations of Texas Government Code 617.005 brought by Harmon in the state court action were dismissed with prejudice. In this federal action, Harmon originally asserted two claims against Defendants, pursuant to 42 U.S.C. § 1983, for alleged constitutional violations based on the denial of equal protection to petition the government and retaliation in violation of his First Amendment right to free speech. In his Complaint, Harmon refers to these claims as his "Denial of Equal Protection" claim and "Free Speech Claim." Pl.'s Compl. 4, 5.

A. First Amendment "Free Speech Claim" Included in Plaintiff's Complaint

In his Complaint, Plaintiff refers to his claim against Defendants under the First Amendment for alleged retaliation as his "Free Speech Claim." Id. at 5. Regarding his Free Speech Claim, Harmon alleges in his Complaint that Defendants retaliated against him in terminating his employment in violation of his First Amendment right to speak out on matters of public concern. Specifically, Harmon contends that he was fired because he reported that Evans and the supervisors under Evans engaged in illegal conduct in requiring deputy constables, including him, to: (1) donate time and money to Evans's re-election campaign; (2) work unpaid for political allies and friends of Evans; and (3) tow citizens' vehicles after traffic stops. In addition, Plaintiff asserts that he reported Evans's illegal conduct in setting traffic citation quotas in violation of Texas Transportation Code § 720.002.

B. Denial of Equal Protection Claim Based on Right to Petition Included in Plaintiff's Complaint

In his Complaint, Plaintiff refers to his claim against Defendants for alleged violations of his "right to petition the government for redress of grievances" as his "Denial of Equal Protection" claim. Id. at 4. Regarding this claim, Harmon alleges in his Complaint that he sought to appeal the termination of his employment "through the Dallas County grievance system and by appealing to Defendant Evans[,]his department head, but his requests to appeal were refused by Defendants." Id. ¶ 23. Harmon alleges that Defendants refused to hear the appeal of his termination through the Dallas County grievance system because he was not employed as a Deputy Constable before August 19, 2003. Defendants do not dispute that Dallas County's formal grievance system applies only to deputy constables hired before August 19, 2003, and Harmon's appeal through Dallas County's formal grievance system was rejected because he was hired after August 19, 2003. Harmon contends that the right to petition the government is a fundamental right, and "the actions of Defendants [in] depriv[ing] [him] of the right to petition the government for redress of grievances, when such right is granted to other similarly situated employees [deputy constables hired before August 19, 2003], is a denial of [his] right to equal protection of law guaranteed by the U.S. Constitution." Id. ¶ 26.

C. Plaintiff's Rule 7(a) Reply

On August 7, 2013, Dallas County filed its Answer to Plaintiff's Complaint, asserting, among other things, that Plaintiff's claims against it were barred by res judicata as a result of the state court action. On March 15, 2014, Evans filed his Answer, similarly alleging that Plaintiff's claims against him were barred by res judicata, even though he was not a party to the state court action. Evans's Answer also included the defense of qualified immunity. Evans alleges that Plaintiff's claims against him are barred by qualified immunity because he did not engage in any conduct that could be "characterized as objectively unreasonable and which all officials in his circumstances would condemn as violative of Constitutional rights." Evans's Answer ¶ 5. On February 26, 2015, former United States Chief Judge Jorge A. Solis ("Judge Solis") ordered Plaintiff to file a reply under Federal Rule of Civil Procedure 7(a) (" Rule 7(a) Reply") regarding "Defendants' qualified immunity defense[ ]" by March 18, 2015, and set a deadline for dispositive motions on qualified immunity for April 17, 2015. Order 1 (Doc. 24). On March 18, 2015, Plaintiff filed his Rule 7(a) Reply (Doc. 25) as directed. In his Rule 7(a) Reply, Plaintiff alleges in pertinent part as follows:

1. ...Defendant Evans was a Texas peace officer and an elected Constable for Dallas County, Texas when he terminated Harmon for speaking out on matters of public concern. In 2013, the law was clearly established that public employees could not be terminated from their employment for speaking out on matters of public concern. As such, Defendant Evans is not entitled to prevail on his defense of qualified immunity.

30. Harmon alleges Defendant Evans had knowledge that Harmon reported Evans' illegal conduct to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel.

31. Norvis Harmon alleges his termination was a wrongful termination because Defendant Evans terminated Harmon in retaliation for Harmon's speaking to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel about Evans' illegal conduct.

32. Harmon alleges Defendant Evans' illegal conduct, including his illegal lottery to support his re-election campaign that resulted in Evans' felony conviction, were matters of public concern.

33. In 2011, every reasonable elected Constable in the State of Texas would have understood that Defendant Evans' conduct was objectively unreasonable as the law was clearly established that public employees cannot be terminated for speaking out on matters of public concern; because the law was clearly established that corruption and illegal conduct by elected officials is a matter of public concern; and because such a termination would and did violate Norvis Harmon's Constitutional rights.

34. Defendant Evans claims that Norvis Harmon was terminated due to discrepancies related to a G.P.S. system in the vehicles Harmon used to perform duties serving civil process as a deputy constable, but this purported reason is merely a pretext for Evans' illegal termination of Harmon.

35. Other similarly situated employees were permitted to explain the circumstances of the G.P.S. discrepancies and they were not terminated.

36. Still other similarly situated employees [deputy constables hired before August 19, 2003] who were permitted to explain the circumstances of the G.P.S. discrepancies in the context of a grievance process

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