United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss
Plaintiff's First Amended Complaint, filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Dkt. 7). Having
considered the pleadings, the parties' filings, and the
applicable law, the Court issues the following order.
Blayne D. Williams was formerly a police officer employed by
the Austin Police Department (“APD”). Plaintiff
brings this action against the City of Austin, the Austin
Police Department, Police Chief Art Acevedo, police monitor
Margo Frasier, and police commander Fred
allegations largely concern disciplinary actions taken
against him up to the eventual termination of his employment
in the summer of 2015. This first such action occurred in
2011. In that instance, Plaintiff had been involved in a
physical altercation with an elderly HEB employee when that
employee cut in line in front of Plaintiff at an ATM while
Plaintiff was off-duty. Following a complaint, APD's
Internal Affairs Division began an investigation into the
incident, which resulted in Plaintiff's chain of command
recommending his indefinite suspension. At or following a
subsequent dismissal review hearing, Plaintiff and Chief
Acevedo reached a deal in which Plaintiff would receive only
a ninety-day suspension and would waive his right to appeal
the discipline to the Civil Service Commission. Plaintiff now
alleges that, under state law and his collective bargaining
agreement, Chief Acevedo had no authority to suspend him for
ninety days and that Chief Acevedo's representations to
the contrary were fraudulent.
next instance of discipline occurred in 2013. Plaintiff was
then engaged in approved off-duty secondary employment for a
Hyatt hotel. In this incident, Plaintiff recovered a cell
phone that was hidden in a guest bathroom. The phone was
positioned above the guest's bathtub and concealed atop a
ceiling tile with a noticeable hole in it. Plaintiff reported
to the hotel manager that the situation potentially involved
a felony incident of improper video or photography. Rather
than report the suspected crime to APD, however, Plaintiff
turned the phone over to hotel security staff with
instructions to charge the phone and check it for improper
images or video. The security staff did so and, finding
evidence of criminal conduct, reported the incident to APD
the next day. Plaintiff's APD supervisors then instructed
him to write a supplemental report on the incident.
Fletcher initiated an Internal Affairs investigation into
Plaintiff's handling of the Hyatt incident. This
investigation found that he violated two department policies
concerning to incident reporting and evidence collection. The
chain of command recommended discipline was a suspension of
less than fifteen days. However, Assistant Chief Patrick
Ockletree, who conducted Plaintiff's disciplinary
meeting, felt that Plaintiff was evasive and dishonest during
that meeting. Because of that, Plaintiff's chain of
command sustained two additional violations against him-for
neglect of duty and honesty-and changed the recommended
discipline to indefinite suspension. A dismissal review
hearing followed and resulted in Chief Acevedo's decision
to indefinitely suspend Plaintiff's employment.
appealed the indefinite suspension. The hearing examiner
sustained three of the four policy violations but overturned
the finding of dishonesty. In light of the three sustained
violations and Plaintiff's past disciplinary history, the
hearing examiner found that indefinite suspension was
inappropriate but that Plaintiff's conduct clearly
warranted a sanction greater than a fifteen-day suspension.
However, because the examiner's authority was limited to
reducing the sanction to a suspension of fifteen days or
less, he ordered that Plaintiff should be reinstated and
given back pay and benefits assuming only a fifteen-day
asserts that this discipline violated several of his federal
constitutional rights and was contrary to state law and his
collective bargaining agreement. Additionally, Plaintiff
alleges that Acevedo's later decision to terminate
APD's secondary employment contract with Hyatt
constituted tortious interference with his employment
final disciplinary action stemmed from Plaintiff's
response to a family disturbance call on January 23, 2015.
Plaintiff's allegations here are sparse and unclear. He
claims that he wrote the necessary report after investigating
the disturbance, but it appears he may have violated
department policy when he failed to make an arrest. However,
Plaintiff maintains that he appropriately relied on the
statutory definition of “family violence”-which
provides that acts of self-defense do not constitute unlawful
family violence-in determining that an arrest was
unwarranted. See Tex. Fam. Code § 71.004.
Nonetheless, according to Plaintiff, Chief Acevedo cited him
for incompetence over his handling of the incident.
Plaintiff alleges that he made several reports of criminal
activity by city employees to APD's Special Investigative
Unit. He made two reports in May and June of 2014 concerning
the purported criminal acts of Chief Acevedo and city
attorney Ann Spiegel. Plaintiff allegedly reported additional
criminal conduct of Chief Acevedo at the end of April 2015.
He asserts that he was terminated within ninety days of this
latter report, triggering a presumption under state law that
his termination was due to his whistleblowing activity.
See Tex. Gov't Code § 554.004(a).
filed this action on December 27, 2016. Defendants moved to
dismiss Plaintiff's complaint on January 20, 2017.
Plaintiff did not respond to Defendants' motion, but
instead filed his First Amended Complaint more than a month
later, on February 21, 2017, without Defendants' consent
and without leave of the court. See Fed. R. Civ. P.
15(a)(2) (opponent's consent or leave of court required
to amend pleading more than 21 days after service of 12(b)(6)
motion). In the interest of judicial economy, however, the
Court will review the adequacy of Plaintiff's complaint
as amended. Plaintiff's First Amended Complaint lists six
causes of action: (1) violation of 42 U.S.C. § 1981; (2)
violations of 42 U.S.C. §§ 1985 and 1983 and
retaliation; (3) fraud; (4) conspiracy; (5) tortious
interference with contract; and (6) wrongful discharge in
violation of state-law whistleblower protections. Defendants
renewed their motion to dismiss on March 6, 2017. To date,
Plaintiff has filed no response.
evaluating a motion to dismiss for failure to state a claim
under Rule 12(b)(6) the complaint must be liberally construed
in favor of the plaintiff and all facts pleaded therein must
be taken as true. Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). Although Federal Rule of Civil Procedure 8 mandates
only that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief, ” this standard demands more than unadorned
accusations, “labels and conclusions, ” “a
formulaic recitation of the elements of a cause of action,
” or “naked assertion[s]” devoid of
“further factual enhancement.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
court must initially identify pleadings that are no more than
legal conclusions not entitled to the assumption of truth,
then assume the veracity of well-pleaded factual allegations
and determine whether those allegations plausibly give rise
to an entitlement to relief. If not, the complaint has
alleged-but it has not show[n]-that the pleader is entitled
to relief. Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Throughout this process, the court
“must consider the complaint in its entirety, as well
as other sources courts ordinarily examine when ruling on
Rule 12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
point out that Plaintiff has previously brought a lawsuit
concerning largely the same facts, which was dismissed with
prejudice on March 16, 2016. (Dkt. 72, Civ. No.
1:14-cv-695-SS). The Court will therefore examine whether any
of Plaintiff's claims are barred by the doctrine of
doctrine of res judicata, or claim preclusion,
forecloses relitigation of claims that were or could have
been raised in a prior action.” Davis v. Dall. Area
Rapid Transit, 383 F.3d 309, 312-13 (5th Cir. 2004). If
a claim in the current action meets the following four
elements, it is barred by the doctrine of res
judicata: (1) the parties in the prior suit and current
suit are identical; (2) a court of competent jurisdiction
rendered the prior judgment; (3) the prior judgment was final
and on the merits; and (4) the plaintiff raised the same
cause of action in both suits. Id.
first element is met as to Plaintiff's claims against the
City. (See Compl., 1:14-cv-695-SS, Dkt.
The second element is also met: the court in the prior
action-this federal district court- had jurisdiction to hear
Plaintiff's federal and related state-law claims.
See 28 U.S.C. § 1367(a). The prior court
rendered summary judgment against Plaintiff and thus
dismissed his claims with prejudice, satisfying the third
Plaintiff's prior and current claims against the City
constitute the same cause of action. Courts examining whether
two lawsuits involve the same cause of action apply the
“transactional” test. Davis, 383 F.3d at
313. “Under the transactional test, a prior
judgment's preclusive effect extends to all rights of the
plaintiff ‘with respect to all or any part of the
transaction, or series of connected transactions, out of
which the [original] action arose.'” Id.
(quoting Petro-Hunt, L.L.C. v. United States, 365
F.3d 385, 395-96 (5th Cir. 2004)). Factors relevant to the
determination whether a grouping of facts constitutes a
transaction or series of transactions include “whether
facts are related in time, space, origin, or motivation,
whether they form a (quoting Restatement (Second) of
Judgments § 24(2) (1982)). The “critical
issue” is whether the two actions share a common
nucleus of operative fact. Id.
two actions against the City clearly arise from the same
common nucleus of operative fact. Plaintiff's current
action centers largely on the very same events that gave rise
to his prior suit. More specifically, both suits contain
allegations of wrongful and discriminatory discipline leading
to a violation of his rights, such as the discipline
resulting from his off-duty work at a Hyatt hotel. These
facts are obviously related in time, origin, motivation, and
form a convenient trial unit-they are the same facts. See
Id. The Court therefore concludes that Plaintiff's
claims against the City concerning the acts of its agents
occurring prior to the time he filed his previous action are
barred by the doctrine of res judicata. These claims
are therefore dismissed without leave to amend.
Claims Against the Austin Police Department
named the APD as a defendant in this action. APD is not a
legal entity separate from the City of Austin and is not
capable of being sued. See Darby v. Pasadena Police
Dep't., 939 F.2d 311, 313-14 (5th Cir. 1991).
Plaintiff's claims against APD are therefore dismissed
without leave to amend.
asserts a claim of wrongful termination in violation of the
Texas Whistleblower Act, Tex. Gov't Code §
554.002. Plaintiff alleges that he reported the
criminal conduct of Chief Acevedo and City Attorney Ann
Spiegel to the Austin Police Department's Special
Investigative Unit ...