from the United States District Court for the Southern
District of Texas
KING, DENNIS, and COSTA, Circuit Judges.
Sims, a former officer with the Madisonville Police
Department (MPD), sued the City of Madisonville, Texas (the
City),  and his former supervisor, Sergeant
Jeffrey Covington, under 42 U.S.C. § 1983, alleging that
he was terminated after reporting acts of misconduct by
Covington in violation of his First and Fourteenth Amendment
rights. The district court granted summary judgment in favor
of the City on the grounds of res judicata, and later granted
summary judgment in favor of Covington based on qualified
immunity. Sims appeals those judgments as well as several of
the court's preliminary rulings.
Sims was a police officer with the MPD from 2004 until 2012,
when he was terminated. Prior to his termination, Sims had
reported up the chain of command that his supervisor,
Sergeant Jeffrey Covington, solicited help from other
officers in planting drugs on Covington's wife during a
custody battle over their two children. Sims had previously
attempted to report Covington's misconduct to Police
Chief Claude May in October 2011, but Chief May dismissed the
allegations at the time. In June 2012, Sims discovered audio
recordings on Covington's computer in which Covington
could be heard asking another officer to help him plant the
drugs. Sims accessed the recordings a second time, saved the
files to a CD, and gave the CD to a Texas Ranger
investigating Covington on other matters. In July 2012, Sims,
having learned from another officer that Covington was
investigating him, searched the network computer and found
Covington's investigative file, which contained
"notes on Sims, unauthorized GPS tracking data and
camera video" pertaining to Sims.
24, Sims overslept and missed an appearance in Municipal
Court. The next day, Sims met with Chief May and Covington
and was placed on probation for allegedly failing to appear
in Municipal Court on several occasions. At that meeting,
Sims possessed typed notes rebutting the allegations he found
in Covington's investigative file. Covington and Chief
May noticed the notes and contacted City Manager Danny
Singletary. At some point following that meeting, Chief May
and Singletary contacted AgniTEK Technology Solutions to
investigate whether Sims had accessed Covington's files
without authorization. AgniTEK ultimately concluded that
there had been a computer breach and that it originated from
Sims's computer. On July 27, Sims was called into Chief
May's office and terminated for violating the MPD's
Computer Use Agreement. After Sims was terminated, Ranger
Stephen Jeter investigated whether Sims accessed confidential
files on Covington's computer, and Sims was eventually
indicted for computer security breach, a felony under Texas
law. The charges were later dismissed "in the interest
of justice." Covington was ultimately indicted and
convicted of charges related to framing his wife, and he
voluntarily resigned from the MPD.
14, 2014, Sims sued the City in state court, alleging claims
under the Texas Whistleblower Act. The City filed a plea to
the jurisdiction, and the state court granted that plea,
dismissing Sims's state court claims with prejudice.
While the state court case was pending, Sims sued the City
and Covington in federal court under 42 U.S.C. § 1983,
alleging a conspiracy to violate his First and Fourteenth
Amendment rights. The City and Covington moved for summary
judgment based on the preclusive effect of the state
court's dismissal. The district court granted the
City's motion for summary judgment on res judicata
grounds, but denied Covington's motion, concluding that
Covington was not a party to the state court action and
failed to establish privity. Covington later brought a second
motion for summary judgment on the basis of qualified
immunity. After significant motion practice, the district
court granted Covington's motion for summary judgment.
Sims appeals those judgments.
review a district court's grant of summary judgment de
novo. Howell v. Town of Ball, 827 F.3d 515, 521 (5th
Cir. 2016). Summary judgment is appropriate where, construing
the evidence in the light most favorable to the non-moving
party, "there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of
law." Tolan v. Cotton, 134 S.Ct. 1861, 1866
(2014) (quoting Fed.R.Civ.P. 56(a)). A genuine dispute of
material fact exists when the "evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Royal v. CCC & R Tres Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
first address the individual liability claims brought against
Covington. Sims argues that Covington violated the First
Amendment by retaliating against him for engaging in
protected speech when he reported Covington's misconduct.
He also alleges that Covington violated his clearly
established due process rights by depriving him of a property
interest in continued employment with the MPD and liberty
interests in a name-clearing hearing and in being free from
criminal indictment and arrest based on false evidence. Sims
also contends that Covington conspired with others to deprive
him of these rights.
First Amendment retaliation claim, the district court granted
summary judgment on the basis of qualified immunity. It cited
our recent holding in Culbertson v. Lykos, 790 F.3d
608 (5th Cir. 2015), that the law is "unsettled . . .
whether someone who is not a final decisionmaker and makes a
recommendation that leads to the plaintiff being harmed can
be liable for retaliation." Id. at 627.
Covington did not have the authority to terminate Sims; Chief
May, who was not sued, did. Unsettled liability for a
nondecisionmaker like Covington would entitle him to a
qualified immunity defense because public officials are
subject to section 1983 liability only if their actions
"were objectively unreasonable in light of clearly
established law at the time of the violation."
Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016).
are getting ahead of ourselves. Qualified immunity is a
two-step process. The first asks whether the defendant
violated the plaintiff's constitutional rights. The
second step adds the protection for the defendant that
liability attaches only if the right was clearly established.
Id. We now have discretion to skip the first inquiry
and resolve a case solely on clearly established grounds.
Pearson v. Callahan, 555 U.S. 223, 240 (2009). Yet
in overruling the short-lived regime of Saucier v.
Katz, 533 U.S. 194, 200 (2001), which required courts to
first address the underlying constitutional question,
Pearson recognized it would still "often [be]
advantageous" to follow the two-step order. 555 U.S. at
242. Doing so is "beneficial" here for reasons the
Supreme Court recognized. Id. at 236. This is the
fourth time in three years that an appeal has presented the
question whether someone who is not a final decisionmaker can
be liable for First Amendment retaliation. Pennypacker v.
City of Pearl, 689 Fed.Appx. 332, 332 (5th Cir. 2017)
(dismissing retaliation claim because liability for
individual defendants was not clearly established);
Howell, 827 F.3d at 526 (affirming dismissal of
retaliation claim on different ground when district court
dismissed based on belief "a non-final decision maker
may not be held liable for First Amendment retaliation claims
brought under § 1983"); Culbertson, 790
F.3d at 627 (dismissing retaliation claim because liability
for individual defendants was not clearly established).
Continuing to resolve the question at the clearly established
step means the law will never get established.
Pearson, 555 U.S. at 236 ("[T]he
Saucier Court was certainly correct in noting that
the two-step procedure promotes the development of
constitutional precedent."). Addressing the first-step
liability question is "especially valuable with respect
to questions that do not frequently arise in cases in which a
qualified immunity defense is unavailable." Id.
That is the case here. First Amendment retaliation claims do
not arise in criminal litigation (as, for example, a Fourth
Amendment claim often would), and this issue of individual
liability would not arise in other civil ...