Stem v. Gomez

Decision Date08 February 2016
Docket NumberNo. 15–50264.,15–50264.
Parties Stephen C. STEM, Plaintiff–Appellant v. Ruben GOMEZ ; City of Hearne, Texas, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Royce John Cullar, Jr., Esq. (argued), Cullar & McLeod, L.L.P., Waco, TX, for PlaintiffAppellant.

Charles D. Olson, Michael W. Dixon, Esq., Haley & Olson, P.C., Charles Alfred Mackenzie, Esq., Law Office of C. Alfred Mackenzie (argued), Waco, TX, for DefendantAppellee.

Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.

LESLIE H. SOUTHWICK

, Circuit Judge:

City councilmembers in Hearne, Texas, terminated former police officer Stephen Stem's employment without notice or a hearing. Stem filed suit alleging the councilmembers' actions violated state law and denied him constitutional due process. The district court dismissed the suit. We AFFIRM in part and REVERSE and REMAND in part.

FACTS AND PROCEDURAL BACKGROUND

On May 6, 2014, Stephen Stem, a second-year officer at the Hearne Police Department, was dispatched to Hearne resident Pearlie Golden's home on a 9–1–1 call. Roy Jones, Golden's nephew, placed the emergency call. Jones said Golden, who had recently failed a driver's license renewal test, threatened him with a gun after he had taken away her car keys. Stem alleged that when he arrived at the home, Golden pointed the gun at him and refused to put it down upon Stem's direction. Stem said he then fired his weapon "in response to the immediate and deadly threat." Golden was wounded

and later died.

Stem alleged that following the shooting there were "considerable protests from residents of Hearne" and groups from outside Hearne. The Hearne City Council posted a notice for a May 10 meeting, listing Stem's employment as an agenda item. The mayor and city attorney announced prior to the meeting that they would recommend terminating Stem. At the May 10 meeting, councilmembers discharged Stem. Stem said he never received a signed, written complaint from any city official prior to his dismissal.

In September 2014, a Texas grand jury failed to indict Stem on any charges related to the incident. One month later, Stem filed this lawsuit against the city of Hearne, Texas, and its mayor in his individual and official capacities (collectively, the "defendants"). Stem alleged that Texas Government Code Section 614.023

created a "constitutionally protected property interest" in his employment as a police officer. Section 614.023 provides that where a "complaint" is filed against an officer covered by the statute1 :

(a) A copy of a signed complaint ... shall be given to the officer ... within a reasonable time after the complaint is filed.
(b) Disciplinary action may not be taken against the officer ... unless a copy of the signed complaint is given to the officer....
(c) ... [T]he officer ... may not be indefinitely suspended or terminated from employment based on the subject matter of the complaint unless:
(1) the complaint is investigated; and
(2) there is evidence to prove the allegation of misconduct.

Tex. Gov't Code Ann. § 614.023

.

Stem argues that the defendants' "prejudg[ment]" of him and failure to provide due process in connection with his termination deprived him of due process under the Fourteenth Amendment. Stem brought suit for the deprivation under 42 U.S.C. § 1983

. Stem also sought a declaratory judgment that the defendants violated his constitutional rights and state law by terminating his employment without following the requirements of Section 614.023. The defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. Stem opposed the motion and also sought leave to amend any deficiencies in his complaint. In January 2015, the district court denied leave to amend and dismissed for failure to state a claim and for lack of jurisdiction. Stem timely appealed.

DISCUSSION

A district court decision to dismiss for failure to state a claim or for lack of subject matter jurisdiction is reviewed de novo. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir.2012)

(failure to state a claim); Ghanem v. Upchurch, 481 F.3d 222, 223 (5th Cir.2007) (lack of subject matter jurisdiction). In analyzing the claims, all well-pleaded facts are accepted as true and should be examined "in the light most favorable to the plaintiff." Bowlby, 681 F.3d at 219. Dismissal is appropriate if a complaint fails to plead sufficient "facts to state a claim ... that is plausible[, rather than merely conceivable,] on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the ... [complaint's] factual content ... allows the court to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Denial of a motion to amend is reviewed for abuse of discretion. Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir.2009)

.

I. Dismissal for Lack of Jurisdiction

The defendants argue that the district court lacked subject matter jurisdiction. They contend that because Stem had no property interest in continued employment, there was no jurisdiction to consider his Section 1983

claim. The argument blurs jurisdiction with the merits. If the challenge to jurisdiction "is also a challenge to the existence of a federal cause of action," a district court should assume jurisdiction exists and "deal with the objection as a direct attack on the merits of the plaintiff's case." Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. May 1981)

(relying on Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ). So long as a complaint is drafted "to seek recovery directly under the Constitution or laws of the United States," a "failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell, 327 U.S. at 681–82, 66 S.Ct. 773. More recently, the Supreme Court explained that "the nonexistence of a cause of action [is] no proper basis for a jurisdictional dismissal." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The only exceptions are where the claim was clearly made "for the purpose of obtaining jurisdiction" or is "frivolous." Bell, 327 U.S. at 682–83, 66 S.Ct. 773.

Stem stated a claim for relief under a federal statute. See 42 U.S.C. § 1983

; 28 U.S.C. § 1331. It was not frivolous, and the Bell exceptions are inapplicable. The district court erred in dismissing Stem's claims for lack of jurisdiction.

The court also dismissed for failure to state a claim. We turn to whether that dismissal was valid.

II. Dismissal of Section 1983
Claim

To state a claim under Section 1983

, a plaintiff must assert facts to support that a person acting under color of state law denied the plaintiff a right under the Constitution or federal law. Martin v. Thomas, 973 F.2d 449, 452–53 (5th Cir.1992). A "person" includes a local governing body if the action claimed to be unconstitutional implemented a "decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). When a government official is sued under Section 1983, the plaintiff must allege that the official "was either personally involved in the deprivation or that his wrongful actions were causally connected" to it. James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008).

Stem asserts that Section 614.023

, particularly subsection (c) which established a procedure for addressing complaints, provided him with a constitutionally protected property interest in his job. He alleges that he was unlawfully denied due process guaranteed to him under the Fourteenth Amendment when the mayor recommended discharging him without notice or a hearing and the Hearne City Council acted on that recommendation.

A property interest is more than "an abstract need," a "desire," or a "unilateral expectation" to continued employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

. A claimant must show a "legitimate claim of entitlement" to a procedure which is intended to protect an interest "acquired in specific benefits," in this case, a job. Seeid. at 576–77, 92 S.Ct. 2701. A property interest will exist in continued employment if the right to terminate without cause is eliminated. See Bolton v. City of Dallas, 472 F.3d 261, 264 (5th Cir.2006). Conversely, an employee who is terminable at will generally has no constitutionally-protected property interest. See Muncy v. City of Dallas, 335 F.3d 394, 398–99 (5th Cir.2003).

A property interest is not derived from the Constitution but from an independent source such as state law, a contract, or other "understandings." Evans v. City of Dallas,

861 F.2d 846, 848 (5th Cir.1988). Therefore, a property interest "cannot be defined by the procedures provided for its deprivation." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Though state law is the source of the right, the question of whether a property interest is created is answered by federal constitutional law. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756–57, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005).

Stem argues that because his dismissal related to "complaints about his use of force against Ms. Golden," Section 614.023

provided him with a right to continued employment unless the city could produce corroborating evidence that proved the alleged misconduct. See Tex. Gov't Code Ann. § 614.023(c). He expanded that assertion at oral argument, contending that Section 614.023 sets a for-cause threshold for dismissal of an officer protected by the statute whenever either a citizen complaint or a criticism from inside city government "may lead to disciplinary action."

For support, Stem cites a state appellate decision. See Turner v. Perry, 278 S.W.3d 806 (Tex.App.–Houston [14th Dist.] 2009, pet. denied)

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