United States District Court, W.D. Texas, Austin Division
BILLY L. SPEARS, Plaintiff,
STEVEN McCRAW, et al., Defendants.
PITMAN, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion for Summary Judgment,
(Dkt. 31). Having reviewed the filings, the relevant law, and
the factual record, the Court issues the following order.
action is a suit by Plaintiff Billy L. Spears
(“Plaintiff” or “Spears”) against the
Texas Department of Public Safety (“TDPS”),
Steven McCraw, David Baker, Luis Gonzalez, Rhonda Fleming,
Michael Bradberry, Luis Sanchez, K.B. Wilkie, Brandon Negri,
Jimmy Jackson, and Marcus Stokke (collectively,
“Defendants”). Plaintiff originally filed suit in the
98th District Court of Travis County, Texas, but Defendants
removed the action to federal court pursuant to 28 U.S.C.
is a trooper with the TDPS Highway Patrol Division. (Original
Pet., Dkt. 1-3, ¶ 2). On May 10, 2014, Plaintiff and
Trooper Manuel Ponce attended a concert at Lake Fork, Texas
in plain clothes and while off-duty. (Id. ¶
14). Both men attempted to carry alcoholic drinks from one
area of the concert to another, but were stopped by a
security guard. (Id.). According to Plaintiff,
Defendant Stokke then approached the men and informed them
that they could be arrested for a Class A misdemeanor if they
carried the alcohol beyond a certain point. (Id.).
After some discussion, Defendant Stokke allegedly advised
Plaintiff that his behavior could lead to an arrest for
public intoxication. (Id.). Plaintiff and Trooper
Ponce then identified themselves as fellow law enforcement
officers. (Id.). Defendant Stokke detained Plaintiff
and summoned other law enforcement officers. (Id.).
Plaintiff was eventually released. (Id.).
subsequently filed a complaint with the Texas Alcoholic
Beverage Commission, Defendant Stokke's employer, and
reported the matter to the Texas Rangers and his superiors at
TDPS. (Id. ¶ 15). He alleges that these actions
led his superiors to retaliate against him in the form of a
disciplinary complaint. (Id.). He was eventually
suspended for one day without pay, but appealed that decision
to TDPS Director Defendant McCraw. (Id. ¶ 20;
Mot. Summ. J., Dkt. 31, at 5). Defendant McCraw concluded
that the allegations against Plaintiff should not have been
sustained, but ordered that Plaintiff receive
“performance counseling.” (Original Pet., Dkt.
1-3, ¶ 15). Shortly thereafter, Plaintiff received a
“Counseling Record” stating that his actions at
the concert were “unprofessional” and
“reflected poorly on the Department.”
(Id.). Plaintiff signed the document, but wrote on
it: “I don't agree with this.”
weeks later, Plaintiff worked an off-duty job as backstage
security at a concert in Austin. (Id. ¶ 21).
While Plaintiff was working backstage, he took a photograph
with musician Calvin Broaddus. Broaddus performs under the
stage name Snoop Dogg, and the photograph was later posted to
Instagram with the caption “Me n my deputy dogg.”
(Id.). Plaintiff was subsequently served with
another “Counseling Record, ” which stated:
“While working a secondary employment job, Trooper
Spears took a photo with a public figure who has a well-known
criminal background including numerous drug charges. The
public figure posted the photo on social media and it
reflects poorly on the Agency.” (Id.
days later, Plaintiff's attorney sent a letter to
Defendant McCraw “asking him to remove the
‘Counseling Record' forms from [Plaintiff's]
file and put a stop to the retaliation against
[Plaintiff].” (Id. ¶ 25). The attorney
then posted the letter on his blog, prompting local,
national, and international media coverage. (Id.).
TDPS issued a press release in response. (Id. ¶
who was subsequently promoted to Senior Trooper, now seeks
relief pursuant to 42 U.S.C. § 1983 (“Section
1983”). He alleges that Defendants Jackson, Negri,
Wilkie, Sanchez, Bradberry, Fleming, Gonzalez, Baker, and
McCraw “retaliated against him for exercising his right
to petition for redress of grievances as guaranteed by the
First Amendment to the U.S. Constitution, ” denied him
the equal protection of the laws as guaranteed by the
Fourteenth Amendment to the U.S. Constitution, and
“denied him due process of law as guaranteed by the
Fourteenth Amendment to the U.S. Constitution.”
(Original Pet., Dkt. 1-3, ¶¶ 28-30). Plaintiff also
alleges that Defendant Stokke “violat[ed] his right to
be free from unreasonable seizure as guaranteed by the Fourth
Amendment to the U.S. Constitution, ” (id.
¶ 31), and asserts a supplemental claim under the Texas
Whistleblower Act, (id. ¶ 33).
filed the instant Motion for Summary Judgment on May 30,
2017. (Mot. Summ. J., Dkt. 31). They assert that Plaintiff
(1) fails to overcome the individual defendants'
entitlement to qualified immunity; and (2) fails to state
cognizable claims under Section 1983 and the Texas
Whistleblower Act. (Id. at 2).
STANDARD OF REVIEW
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is “genuine” only if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact
issue is ‘material' if its resolution could affect
the outcome of the action.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrates the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[T]he moving party may [also]
meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case.”
Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving
party to establish the existence of a genuine issue for
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I.
Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.
1995). “After the non-movant has been given the
opportunity to raise a genuine factual issue, if no
reasonable juror could find for the non-movant, summary
judgment will be granted.” Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000).
parties may satisfy their respective burdens by tendering
depositions, affidavits, and other competent evidence.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992). The Court will view this evidence in the light most
favorable to the non-movant, Rosado v. Deters, 5
F.3d 119, 122 (5th Cir. 1993), and should “not make
credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
FIRST AMENDMENT: RETALIATION
first alleges that Defendants Jackson, Negri, Wilkie,
Sanchez, Bradberry, Fleming, Gonzalez, Baker, and McCraw
“retaliated against him for exercising his right to
petition for redress of grievances as guaranteed by the First
Amendment to the U.S. Constitution.” (Original Pet.,
Dkt. 1-3, ¶ 28). Defendants maintain that, because
Plaintiff has not demonstrated the occurrence of an adverse
employment action, this claim must be dismissed.
establish a Section 1983 claim for employment retaliation
related to speech, “a plaintiff- employee must show:
(1) he suffered an adverse employment action; (2) he spoke as
a citizen on a matter of public concern; (3) his interest in
the speech outweighs the government's interest in the
efficient provision of public services; and (4) the speech
precipitated the adverse employment action.” Moss
v. Harris Cty. Constable Precinct One, 851 F.3d 413,
420-21 (5th Cir. 2017) (citing Anderson v. Valdez,
845 F.3d 580, 590 (5th Cir. 2016)).
Defendants' argument that Plaintiff has not stated a
claim for retaliation is limited to their argument that he
has not demonstrated the occurrence of an adverse employment
action, the Court ...