Spears v. McCraw

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before 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.

         I. PROCEDURAL BACKGROUND

         Plaintiff 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.

         In this 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;^[1] (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.

         In the 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.

         All defendants now move to dismiss Spears' Second Amended Complaint, asserting they are entitled to qualified immunity on all of his claims.

         II. FACTUAL BACKGROUND^[2]

         On 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.

         On May 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 6.

         Spears 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, ^[3] 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.

         On 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.

         On 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.

         Spears 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.

         II. ...