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Sims v. City of Madisonville

United States Court of Appeals, Fifth Circuit

June 28, 2018

DAVID SIMS, Plaintiff - Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, DENNIS, and COSTA, Circuit Judges.

          PER CURIAM

         David Sims, a former officer with the Madisonville Police Department (MPD), sued the City of Madisonville, Texas (the City), [1] 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.


         David 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.

         On July 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.

         On July 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.


         We 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 (1986)).


         We 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.[2]


         On the 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.[3] 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).

         But we 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 ...

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