United States District Court, W.D. Texas, Austin Division
BILLY L. SPEARS,
STEVEN McCRAW et al.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
the Court are Defendants Mach, Flores, Leon, Pulliam, Johnson
and Watson's Motion to Dismiss Plaintiff's Second
Amended Complaint (Dkt. No. 27); Defendants McCraw, Baker,
Webster, Bradberry, Livingston, Gonzalez, Fleming, Wilkie,
Negri, Jackson and Stokke's Motion to Dismiss
Plaintiff's Second Amended Complaint Under Fed.R.Civ.P.
12(b)(6) (Dkt. No. 28); Defendants Drabble and Sparks'
Motion to Dismiss Plaintiff's Second Amended Complaint
Under Fed.R.Civ.P. 12(b)(6) (Dkt. No. 37); and all associated
responses and replies. The district court referred the above
motions to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule
1(c) of Appendix C of the Local Rules.
Billy L. Spears is a trooper with the Texas Highway Patrol, a
division of the Texas Department of Public Safety. Dkt. No.
25 at 2. On April 29, 2015, Spears sued eleven defendants:
(1) the DPS; (2) DPS Director Steven McCraw; (3) DPS
Assistant Director David Baker; (4) DPS Highway Patrol
Division Chief Luis Gonzalez; (5) DPS Inspector General
Rhonda Fleming; (6) DPS HPD Major Michael Bradberry; (7) DPS
Office of Inspector General Captain Luis Sanchez; (8) DPS
Highway Patrol Captain K.B. Wilkie; (9) DPS OIG Lieutenant
Brandon Negri; (10) DPS Highway Patrol Lieutenant Jimmy
Jackson; and (11) Texas Alcoholic Beverage Commission
Sergeant Marcus Stokke. See Spears v. Tex. Dep't of
Public Safety, et al., No. 1:15-CV-511-RP (W.D. Tex.)
(Spears I). In Spears I, Spears alleged
that the Defendants retaliated against him for filing
grievances in violation of his First Amendment rights and
that Stokke violated his Fourth Amendment right to be free
from unreasonable searches and seizures. Dkt. No. 25 at 20.
Spears's claims in that case were based on an interaction
at a concert on May 10, 2014, where Stokke detained Spears
after he attempted to take an alcoholic beverage into a
public area. Id. at 21. Spears filed a complaint
against Stokke, and Spears alleged that DPS filed
disciplinary complaints against him in retaliation.
Id. at 22-26. The Defendants moved for summary
judgment in that case, which the Court granted as to
Spears's constitutional claims. Spears I, Dkt.
31. The parties dismissed Spears' remaining Texas
Whistleblower Act claim by agreement.
case, Spears brings a civil rights action under 42 U.S.C.
§ 1983, originally suing eighteen defendants: (1) DPS
Director Steven McCraw; (2) DPS Deputy Director David Baker;
(3) DPS Regional Commander Jack Webster; (4) Texas Highway
Patrol Major Michael Bradberry; (5) Texas Highway Patrol
Captain Audra Livingston; (6) Texas Public Safety Commission
Chairman Stephen P. Mach; (7) Texas Public Safety
Commissioner Manny Flores; (8)Texas Public Safety
Commissioner Cynthia Leon; (9) Texas Public Safety
Commissioner Jason K. Pulliam; (10) Texas Public Safety
Commissioner Randy Watson; (11) Former Texas Public Safety
Commissioner Faith Johnson; (12)DPS Assistant Director Luis
Gonzalez; (13) DPS Inspector General Rhonda Fleming; (14) DPS
OIG Captain Luis Sanchez; (15) Texas Highway Patrol Captain K. B.
Wilkie; (16) DPS OIG Lieutenant Brandon Negri; (17) Texas
Highway Patrol lieutenant Jimmy Jackson; and (18) TABC
Sergeant Marcus Stokke. Dkt. No. 12 at 2-3. In his First
Amended Complaint, Spears alleged that these defendants
participated in a conspiracy to violate his civil rights,
retaliated against him for exercising his First Amendment
rights, or failed to supervise those who retaliated.
Id. at 8-10. He sought injunctive relief against
Defendants in their official capacity and damages against
Defendants in their individual capacity. Id. at 10.
On the Defendants' motion the district court dismissed
all claims against all defendants, but allowed him to amend
his complaint. Dkt. No. 22.
subsequently-filed Second Amended Complaint, Spears drops his
claims against Sanchez, but adds claims against two new
defendants, Michael Sparks and Willie Drabble (who at
different times served as Spears' former supervisor at
DPS). He also adds factual background to support of his
claims, and adds new § 1983 claims against all
Defendants for violations of his Fourteenth Amendment due
process and equal protection rights. Along with his First
Amendment claims, Spears' claims are: (1) denial of due
process, (2) conspiracy to deny due process, (3) failure to
supervise those that denied him due process, (4) denial of
equal protection, (5) conspiracy to deny him equal
protection, and (6) failure to supervise those that denied
him equal protection. Dkt. No. 25. Spears brings these claims
against Defendants only in their individual capacities.
defendants now move to dismiss Spears' Second Amended
Complaint, asserting they are entitled to qualified immunity
on all of his claims.
April 17, 2016, while Spears I was still pending,
Spears aggravated a pre-existing knee injury. He met with his
primary care physician on April 26, 2016, and the physician
wrote a letter recommending that he be exempted from the
DPS's semi-annual physical fitness test until he could be
seen by a specialist. Spears informed his acting supervisor,
Defendant Willie Drabble, on May 23 or 24 that, because of
the doctor's schedule, he could not see an orthopedist
before the end of the testing period, and Drabble advised
Spears to write a memo to his captain, Defendant Audra
Livingston, explaining the situation. Dkt. No. 25 at 5.
Spears drafted a memo to Livingston and showed it to Drabble,
who read it and said, “That's right.” Sgt.
Drabble advised Spears to fill out a waiver form for the
physical-fitness test, and Spears did so. Sgt. Drabble signed
and dated the request, checked the box recommending approval,
and then submitted both the waiver form and the memo to
Spears' chain of command. Id.
26, 2016, while en route to an assignment, Corporal Sandy
Taylor called Spears and told him that their lieutenant,
Defendant Jimmy Jackson, said Spears would need a medical
evaluation before he could continue working. Spears advised
Cpl. Taylor to fax the form to his physician, and Cpl. Taylor
faxed it on May 26, 2016. Spears's physician signed the
form and returned it to Cpl. Taylor on May 27, 2016. On May
31, 2016, Spears was informed that he was unfit for duty and
he was ordered to return to East Texas. Id. at 5-6.
After returning to East Texas on June 1, 2016, Spears advised
Cpl. Taylor by telephone that he would return to the local
office the following day to complete paperwork. About an
hour-and-a-half later, Cpl. Taylor called Spears and said
Defendant Livingston had forbidden Spears from returning to
the office, even to complete paperwork. Spears'
supervisors placed him on paid medical leave. Id. at
had surgery on his knee on June 30, 2016, but because of
complications he did not return to work until December 17,
2016. He was thus absent from the office from May 26, 2016,
until December 17, 2016. Because of his ongoing recovery,
Spears alleges he was unable to pass the physical-fitness
test during the Fall of 2016 and Spring of 2017. Spears
asserts he never attempted to pass the PFT because: (1) he
was on medical leave and exempt from the test according to
DPS policy, and (2) did not know he was expected to take the
test while he was on medical leave. Id.
September 1, 2017, Spears was told that he was expected to
complete the physical fitness test and that his request for a
medical waiver had been denied. Id. Spears was
classified as non-compliant with DPS policy because he had
not taken and passed a physical fitness test while he was on
medical leave, and as a result, he was placed on a
Performance Improvement Plan and warned that he was on the
verge of termination. Id. The PIP was signed and
served on Spears by Defendant Sparks at the direction of
Defendant Bradberry. Id. at 6. Spears took and
passed the physical fitness test on September 4, 2017, and
was released from the PIP, although it remained in his file.
Id. at 7. Spears alleges that the Defendants denied
him due process by denying him notice of their adverse
decision regarding his fitness test waiver.
September 11, 2017, Spears obtained copies of the documents
denying his medical waiver, and he alleges that many of the
dates and signatures on those documents, as well as his own
memo, were altered by Bradberry in order to implement a PIP
and terminate him. Id. at 7-8. Spears alleges that
the approval of a medical waiver is routinely granted, but
his request was arbitrarily denied by Livingston, Bradberry,
Webster, and Baker in retaliation for filing Spears
I. Spears alleges that Defendants Webster and Baker knew
the waiver request form was a forgery, but they signed it
anyway. Spears alleges that McCraw was aware the other
Defendants were planning to deny Spears the medical waiver
and tacitly or directly authorized it. Id. at 11.
Spears further alleges that these events are part of an
“ongoing pattern of retaliation” when combined
with the allegations from Spears I, and that DPS has
an unwritten policy of retaliation against its employees who
complain about misconduct within DPS. Id. at 12.
also alleges that “OIG is rife with its own misconduct
and conflicts of interest, ” and that there is
“widespread corruption and cronyism at DPS” which
is known by McCraw, Mach, Flores, Leon, Pulliam, Watson and
Johnson. Id. Spears asserts that “It is widely
known within DPS that OIG covers up misconduct to protect
politically-favored DPS employees.” Id. Spears
maintains that Defendant Drabble lied to an investigator from
the Dallas County District Attorney's Office regarding
the date and authenticity of his signature on the medical
waiver request, and that he gave the same false statement to
an OIG investigator that he gave to the DA investigator.
Spears alleges that Defendant Drabble was directed to do so
by Defendant Bradberry. Id. at 14-15. Spears asserts
that “the Defendants violated Spears's equal
protection rights by trying to cover up the forgery.”
Id. at 15. He asserts that Fleming, as head of OIG,
was personally aware of this coverup, that McCraw is
personally aware that Bradberry forged records, and that
McCraw, Bradberry and the Commissioner Defendants tolerate
corruption and cronyism in the DPS. Id.
Additionally, Spears asserts that Commissioner Defendants
were aware of the DPS's history of retaliating against
Spears because Spears had previously sued DPS and some of the
Defendants in this suit in Spears I for retaliating
against him, and those facts were widely reported in the
press. Spears complains that despite their notice of prior
events, Defendants Webster, Baker, McCraw, Mach, Flores,
Leon, Pulliam, Watson, and Johnson failed to supervise the
other Defendants who continued to retaliate against Spears.