United States District Court, S.D. Texas, Houston Division
ORDER OF DISMISSAL
Kenneth M. Hoyt United States District Judge
before the Court is the defendants', the City of
Rosenberg and Rosenberg Police Department (“Rosenberg
P.D.”) (collectively, the “defendants”),
motion to dismiss for failure to state a claim brought
pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 13). The
plaintiff, John Johnson (the “plaintiff”), has
filed a response in opposition to the motion to dismiss (Dkt.
No. 21) and the defendants have filed a reply. (Dkt. No. 22).
Also before the Court is the defendants', Jeremy Eder
(“Eder”) and Dallis Warren (“Warren”)
(together, the “individual defendants”), motion
to dismiss for failure to state a claim. (Dkt. No. 14). The
plaintiff has filed a response in opposition to the motion
(Dkt. No. 26) and the individual defendants have filed a
reply (Dkt. No. 28). After having carefully considered the
motions, responses, replies, the pleadings and the applicable
law, the Court determines that the defendants' motions to
dismiss should be GRANTED.
plaintiff began working as a patrol officer for the Rosenberg
P.D. on January 5, 1999, eventually working his way up to the
position of Patrol Sergeant. On April 3, 2017, however, his
employment was brought to a halt when former Lieutenant
Jeremy Eder (“Eder”) discharged him for having
conducted an active-shooter training in February of 2017 at a
local movie theater. Eder alleged that the plaintiff's
termination was necessary because the active-shooter training
exercise compromised the “safety, security and
integrity of Rosenberg P.D. and its operation.” (Dkt.
No. 1 at ¶ 15.). Days later, a Report of Separation of
Licensee was filed with the Texas Commission on Law
Enforcement, indicating that the plaintiff was dishonorably
plaintiff sought to appeal the dishonorable discharge
designation with the State Office of Administrative Hearings.
Following a comprehensive administrative hearing held on
December 20, 2017, the plaintiff's discharge designation
was reclassified as an honorable discharge.
January 15, 2019, the Rosenberg City Council held a special
meeting to hear all actions concerning the hiring and firing
of police personnel by the police chief so as to ratify them
retroactively. All terminations at Rosenberg P.D. from
January 1, 2017 to January 15, 2019 were discussed at this
meeting. On February 5, 2019, those terminations were
March 27, 2019, the plaintiff commenced the instant action
against the defendants alleging, inter alia, that
the defendants' act of summarily dismissing him from his
position with Rosenberg P.D. without complying with the City
of Rosenberg's Charter deprived him of his property
interest without due process of law.
defendants now move to dismiss the plaintiff's complaint
for failure to state a claim.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) authorizes a defendant to
move to dismiss for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Under the demanding strictures of a Rule 12(b)(6) motion,
“[t]he plaintiff's complaint is to be construed in
a light most favorable to the plaintiff, and the allegations
contained therein are to be taken as true.”
Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189,
194 (5th Cir. 1996) (citing Mitchell v. McBryde, 944
F.2d 229, 230 (5th Cir. 1991)). Dismissal is appropriate only
if, the “[f]actual allegations [are not] enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167
L.Ed.2d 929 (2007).
in light of Federal Rule of Civil Procedure 8(a)(2),
“[s]pecific facts are not necessary; the [factual
allegations] need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93,
127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555, 127 S.Ct. at
1964). Even so, “a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555, 127
S.Ct. at 1964 - 65 (citing Papasan v. Allain, 478
U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Ashcroft v. Iqbal, the Supreme Court expounded upon
the Twombly standard, reasoning that “[t]o
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.' ”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. at 1974). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. at 1955).