Schultea v. Wood, 93-2186

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation47 F.3d 1427
Docket NumberNo. 93-2186,93-2186
Parties, 31 Fed.R.Serv.3d 298, 10 IER Cases 623 Joseph M. SCHULTEA, Sr., Plaintiff-Appellee, v. David Robert WOOD, et al., Defendants, David Robert WOOD, Homer Ford, W.F. "Slim" Plagens and Warren K. Driver, Defendants-Appellants.
Decision Date09 March 1995

George W. Vie, III, John Eckel, Mills, Shirley, Eckel & Bassett, Galveston, TX, for appellants.

Chris Lemens, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for amicus State of Tex.

Lynne Marie Gomez, Kelley Abbott Hammon, Ross, Banks, May, Cron & Cavin, L.L.P., Houston, TX, for appellee.

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




A former chief of police for Tomball, Texas, alleges that three city councilmen and the city manager conspired to demote him after he reported to state authorities that one of the councilmen might be involved in illegal activity.

As chief of police, Joseph M. Schultea began investigating allegations in March 1992 that David R. Wood, a councilman, was involved in criminal activity. On April 8, 1992, Schultea told Warren K. Driver, the city manager of this home rule city, about his investigation. The next day, Schultea and Driver discussed the investigation with Mario Del Osso, the city's attorney. The three decided that Schultea would forward his investigative report to the Texas Department of Public Safety.

The next day, Wood demanded that Driver add to the upcoming council agenda possible action against Schultea. Driver, however, persuaded Wood not to pursue the matter.

With the next report about Wood to the TDPS, events took a different turn. After consulting with Driver, Schultea sent additional information about Wood to the TDPS on May 27, 1992. Later that same day, Schultea learned that Wood and the two other councilmen, Homer Ford and W.F. "Slim" Plagens, had instructed Driver to add to the agenda of the June 1, 1992 city council meeting, discussion of adverse action against Schultea. Schultea alleges that Driver told him that "he had no option but to place me on the agenda because Councilmen Wood, Ford and Plagens have all told him that either I go or he goes." Schultea requested that the city council consider the agenda item in public, but the city council made its decision in a closed executive session. The next day, Driver told Schultea that he had been demoted from police chief to assistant police chief.

Schultea immediately requested an administrative appeal or grievance hearing to challenge his demotion and to stop city councilmen Wood, Ford, and Plagens from making "libelous and slanderous comments" about him. On June 9, 1992, Driver told Schultea that the city did not have a grievance or administrative appeal procedure for his case. Schultea nevertheless again asked the city council for a hearing. Driver responded with a memorandum that, Schultea alleges, led people to believe that he deserved his demotion. Driver eventually put Schultea on the June 15, 1992, city council agenda at which Schultea could again request a hearing to contest his demotion and to clear his name. The record is not clear but the city council appears to have tacitly denied his request for a hearing at the June 15 meeting.

Schultea then filed this suit. He alleges that by demoting him, the council members deprived him of his property and liberty interests without due process and violated his First Amendment rights by retaliating against him for reporting Wood's allegedly criminal activities to the state. Schultea also claims several violations of Texas state law.

The councilmen moved to dismiss. The district court denied the motion, stating simply that "the complaint ... states a claim against the defendants." The four individual defendants brought this interlocutory appeal challenging the denial of their qualified immunity from suit.

A panel of this court affirmed in part, reversed in part, and remanded for further proceedings. 27 F.3d 1112 (5th Cir.1994). It agreed with the district court that Schultea's First Amendment claim should have survived the motion to dismiss, because "[n]o reasonable public official in 1992 [i.e., the year the alleged retaliation occurred] could have assumed that he could retaliate against an employee because the employee disclosed instances of misconduct by a public official." Id. at 1120.

The panel disagreed with the district court's conclusion that Schultea's procedural due process claims, at least in their present form, should go forward. The first of Schultea's two procedural due process claims alleges a constitutionally protected property interest in his employment. In Texas, employment is terminable at will absent a contract to the contrary; Schultea had to allege such a contract. The panel found that neither the city charter nor the representations of the official who hired Schultea created such a contract. Id. at 1116-17.

Schultea's second procedural due process claim alleges that his demotion, combined with the city councilmen's stigmatizing slander, deprived him of his liberty interest. The panel held that to establish a deprivation of this liberty interest, Schultea had to show more than demotion. Id. at 1117. Schultea retained city employment without a reduction in salary or fringe benefits. The panel concluded that this negated his liberty interest claim. Id. at 1117-18.

The panel reversed the order denying the motion to dismiss these due process claims, but remanded to permit Schultea to amend and restate them. The court noted that the complaint did not state Schultea's "best case." Id. at 1118. Schultea had filed his complaint himself, and had only later retained counsel. Id. at 1118 n. 9.

The panel gave guidance for the remand in footnote 2. 27 F.3d at 1115 n. 2. In that note, the panel held that this circuit's pleading standard survives the recent Supreme Court decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, --- U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). The panel reasoned that the Leatherman court did not " 'consider whether [its] qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials.' " Schultea, 27 F.3d at 1115 n. 2 (quoting Leatherman, --- U.S. at ----, 113 S.Ct. at 1162). The panel observed and we agree that nothing in Leatherman disturbed our holding in Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), that complaints in such cases be pled with "factual detail and particularity." 751 F.2d at 1473.

Our task today is to explain the measure by which to judge the adequacy of any amended complaint Schultea may file on remand. It is the occasion for our revisit of Elliott. As we will explain, we stand by our insistence that complaints plead more than conclusions, and that a plaintiff can, at the pleading stage, be required to engage the affirmative defense of qualified immunity when invoked. However, we will no longer insist that plaintiff fully anticipate the defense in his complaint at the risk of dismissal under Rule 12.

It is important to follow the shifts in application of Elliott as qualified immunity has evolved. Our statement of the measure, "heightened pleading," has not changed, but in application it has moved, linked as it is to the substantive principle. This is the age-old dance of procedure and substance, here with the music of qualified immunity.

We are persuaded that we can balance plaintiffs' rights to challenge lawless government action against public officials' rights to be free of the difficulties of the discovery process without judicial additions to Rule 9(b) and with no change in the day-to-day procedure in these cases, except one. We will draw to center stage a judicial tool explicitly preserved by the Civil Rules, the reply. See FED.R.CIV.P. 7(a).


In Elliott, we held that in suits filed under 42 U.S.C. Sec. 1983 against public officials in their private capacity, a claim must be stated with particularity. Judge Brown, writing for the panel majority, forthrightly insisted on this greater detail to accommodate the substantive right of officials sued for money damages to be free both of individual liability and the discovery process--at least where a defendant's actions, although illegal at the time of suit, were not certainly so when the complained of actions were taken. 751 F.2d at 1477-78 & n. 13. The panel saw qualified immunity as a substantive right overriding liberal pleading rules, often termed notice pleading, the conventional but misleading description of the Civil Rules. Id. at 1479. A concurring opinion doubted judicial authority to impose a pleading rule. Id. at 1483 (Higginbotham, J., concurring specially). It urged that insistence on greater pleading detail ought to rest on the reality that what is short and plain is inseparable from the legal and factual complexity of the case at issue. Id. It reasoned that federal trial judges could insist that to state a claim, short and plain, against a public official, a plaintiff must at least chart a factual path to the defeat of the defendant's immunity, free of conclusion. See id.

The majority in Elliott and the cases that followed treated pleading questions as a choice between polar opposites--notice pleading and pleading with particularity. 1 In many if not most cases, however, our insistence on pleading with particularity translated to no more than an insistence that the complaint not plead conclusions. To be sure, we have invoked "heightened pleading" and "pleading with particularity" as a pleading requirement in kinship with Rule 9(b)--but again our "particularity" seldom bit harder in application than an insistence that a...

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