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Harmon v. Dallas County

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

March 31, 2017

NORVIS HARMON, Plaintiff,
v.
DALLAS COUNTY, TEXAS and DERICK EVANS, Defendants.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY UNITED STATES DISTRICT JUDGE.

         Before the court is Defendants' Limited Motion for Summary Judgment (Doc. 39), filed July 18, 2016; and Norvis Harmon's Motion for Partial Summary Judgment (Doc. 42), filed July 18, 2016. After carefully considering the motions, responses, replies, briefs, admissible summary judgment evidence, record, and applicable law, the court grants Defendants' Limited Motion for Summary Judgment (Doc. 39) based on res judicata as to Dallas County and denies as moot the motion as to Plaintiff's claims against Derick Evans; and denies Norvis Harmon's Motion for Partial Summary Judgment (Doc. 42).[1] Further, for the reasons set forth in its January 26, 2017 order, the court revisits Defendant Derick Evans's Motion for Judgment as a Matter of Law based on qualified immunity (Doc. 26) and the order denying that motion (Doc. 29) and concludes that nature of the challenged conduct was not clearly established in the specific context of this case. Accordingly, the court vacates in part the December 1, 2015 order (Doc. 29), to the extent it is inconsistent with this opinion, grants Defendant Derick Evans's Motion for Judgment for Judgment as a Matter of Law based on qualified immunity (Doc. 26), and dismisses with prejudice Plaintiff's claim against Evans in his individual capacity for retaliation in violation of his First Amendment right to free speech.

         I. Factual and Procedural Background

         Plaintiff Norvis Harmon (“Plaintiff” or “Harmon”) brought this action against Defendants Dallas County, Texas (“Dallas County” or “the County”) and former Dallas County Constable Derick Evans (“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 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. As the state court action is the basis for Defendants' res judicata argument and summary judgment motion, the court sets forth the factual and procedural background for the state action and this federal action.

         A. Harmon's State Court Action

         Before bringing this lawsuit, Harmon and two other deputy constable plaintiffs sued Dallas County in the 44th Judicial District Court, Dallas County, Texas. On February 12, 2012, a First Amended Petition was filed against Dallas County, in which 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. Harmon's TWA claim was based on his contention that his employment was terminated on June 3, 2011, in retaliation for his reporting that Evans and the supervisors under Evans had engaged in illegal conduct by requiring deputy constables, including Harmon, 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 violation of Texas Transportation Code § 720.002's prohibition against setting traffic citation quotas. Harmon further alleged that, because of Dallas County's order limiting access to the County's grievance system to constables hired before August 19, 2003, he was denied the ability to appeal the termination of his employment through the County grievance system in violation of Texas Government Code § 617.004 and his right to equal protection under the Texas constitution. Harmon sought monetary damages, reinstatement of his employment rights and benefits or submission of a “corrected TCLEOSE Form F-5” regarding the termination of his employment, [2] prejudgment and postjudgment interest, and an award of attorney's fees and costs under Texas Government Code § 554.003 and Texas Civil Practices and Remedies Code § 37.001, et seq.[3] In connection with his equal protection and § 617.004 claims, Harmon also sought injunction relief to prevent the application of Dallas County's order[4] that limited access to the County's grievance system to constables hired before August 19, 2003, and a declaratory judgment that the Dallas County order violates Texas Government Code § 617.004 and the Texas Constitution. In addition, Harmon requested relief declaring that the conduct of Evans and others, in requiring deputy constables to perform unpaid work and meet traffic citation quotas, was unlawful, and enjoining such conduct.

         On March 5, 2012, Dallas County moved to dismiss Harmon's claims and requests for relief. On March 28, 2012, the state court dismissed with prejudice Harmon's Whistleblower claim, equal protection claim, and claim for alleged violations of Texas Government Code 617.005.

         B. Harmon's Federal Action

         In this action, Harmon asserts two claims, pursuant 42 U.S.C. § 1983, based on the denial of equal protection to petition the government and retaliation in violation of his First Amendment right to free speech. Harmon contends that he was denied equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution when 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. Plaintiff asserts that any Dallas County order that limits appeals of deputy constables to deputy constables hired before August 19, 2003, deprives him of the fundamental right to petition the government for redress of grievances in violation of his right to equal protection of the laws and the United States Constitution. Plaintiff also contends 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, Plaintiff contends that he was fired because he reported that Evans and the supervisors under Evans engaged in illegal conduct in requiring deputy constables, including Plaintiff, 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.

         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) regarding Defendants' qualified immunity defenses. On March 18, 2015, Plaintiff filed his Rule 7(a) Reply (Doc. 25) as directed. On April 17, 2015, Evans moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Evans clarifies in his Motion for Judgment that, of the two equal protection and free speech claims asserted by Plaintiff, his motion focuses on and seeks dismissal of Plaintiff's free speech claim against him in his individual capacity, based on his defense of qualified immunity.[5]Evans's motion was denied by Judge Solis on December 1, 2015.[6]

         The case was assigned to the undersigned on April 27, 2016, after Judge Solis retired. After expiration of the dispositive motion deadline and at the parties' request, the court allowed Defendants to file their Limited Motion for Summary Judgment (Doc. 39) in which they contend that Plaintiff's equal protection and First Amendment retaliation, free speech claims are barred by res judicata. The court also allowed Plaintiff to move for partial summary judgment (Doc. 42) on his equal protection claim against Dallas County. In response to Plaintiff's summary judgment motion, Defendants request that the court treat their response as a cross-motion for summary judgment in the County's favor on the equal protection claim, which the County contends can be decided as a matter of law. On January 3, 2017, the court granted the parties' agreed motion to stay the deadline for filing pretrial materials until the court ruled on the pending summary judgment motions.

         II. Defendants' Summary Judgment Motion

         A. Motion for Summary Judgment Standard

         Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

         The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         B. Analysis

         Defendants contend that Plaintiff's claims against them for denial of equal protection and retaliation for the exercise of free speech under the First Amendment are barred by res judicata. Because the claimed preclusive effect arises from a state-court judgment, the court applies Texas law to determine whether Plaintiff's claims are barred by res judicata. Cox v. Nueces Cty., Texas, 839 F.3d 418, 420-21 (5th Cir. 2016) (footnote omitted). “Under Texas law, res judicata requires proof of three elements: ‘(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the ...


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