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Williams v. City of Austin

United States District Court, W.D. Texas, Austin Division

July 10, 2017

BLAYNE WILLIAMS, SR., Plaintiff,
v.
CITY OF AUSTIN, ART ACEVEDO, MARGO FRASIER, and FRED FLETCHER, et al., Defendant.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before 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.

         BACKGROUND

         Plaintiff 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 Fletcher.[1]

         Plaintiff's 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.[2] 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.

         The 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.[3] 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.

         Defendant 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.

         Plaintiff 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 suspension.

         Plaintiff 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 contract.

         The 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.

         Finally, 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).

         Plaintiff 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.[4]

         LEGAL STANDARD

         When 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).

         The 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, 322 (2007).

         DISCUSSION

         1. Claim Preclusion

         Defendants 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 res judicata.[5]

         “The 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.

         The first element is met as to Plaintiff's claims against the City. (See Compl., 1:14-cv-695-SS, Dkt. 1).[6] 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 element.

         Finally, 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.

         Plaintiff's 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.[7]

         2. Claims Against the Austin Police Department

         Plaintiff 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.

         3. Whistleblower Claim

         Plaintiff asserts a claim of wrongful termination in violation of the Texas Whistleblower Act, Tex. Gov't Code § 554.002.[8] 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 ...


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