UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51135
LAURA A. MARTINEZ,
Plaintiff-Appellee,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ADONAY DAVILA, in his
official and individual capacity; EDUARDO CARMONA, in his
official and individual capacity; RAYMOND VILLARREAL, Warden,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
July 25, 2002
Before BARKSDALE and STEWART, Circuit Judges, and DUPLANTIER,
District Judge.1
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this interlocutory appeal concerning Eleventh Amendment
and qualified immunity, the issues at hand are: whether Texas
waived Eleventh Amendment immunity in federal court either by
removing this action to federal court or by waiving sovereign
immunity in state court under the Texas Whistleblower Act, TEX.
GOV’T CODE ANN. § 554; and whether Laura Martinez has shown violation
of a clearly established constitutional right, thereby depriving
the three individual Defendants of qualified immunity. Defendants
Texas Department of Criminal Justice (TDCJ), Major Adonay Davila,
1
United States District Judge of the Eastern District of
Louisiana, sitting by designation.
Assistant Warden Raymond Villarreal, and Warden Eduardo Carmona
appeal the denial of summary judgment, asserting the district court
erred: in denying Eleventh Amendment immunity against Martinez’s
Texas Whistleblower Act claims; and in denying qualified immunity
to the individual defendants. REVERSED and REMANDED.
I.
Martinez served as a corrections officer at the Dolph Briscoe
Unit of the TDCJ. She alleges that, on 1 October 1998, she
witnessed a major use-of-force incident. That alleged incident is
the springboard for this action, which concerns her termination,
arising out of charges made against her within a month of the
incident and allegedly in retaliation for reporting it. The
bridging event between the incident and her termination was her
contact with an inmate a few weeks after the incident. In either
her affidavit in opposition to summary judgment or her deposition,
she states the following.
Three officers, who were not assigned to the building where
she was working, demanded access in order to inventory a utility
closet. Once inside the building, one officer ordered Martinez to
open inmate Joey Parks’ cell; she did so, although she thought it
a strange request. The three officers took Parks into the utility
closet. Less than 15 minutes later, one officer emerged from the
closet and signaled to Martinez that there was a security problem.
When additional officers arrived, Parks was brought out of the
utility closet and appeared to be “ruffled up” and “red in the
face”. Martinez believes Parks was assaulted by the officers;
2
however, she never observed use of force. (The officers involved
in the incident are not defendants in this action.)
In accordance with standard procedures, Martinez drafted a
witness statement, documenting the incident. She was asked to
rewrite her statement several times by Lieutenant Lopez (not a
defendant). These revisions involved shortening the statement and
deleting details, such as the names of officers uninvolved in the
incident, references to certain procedures, and a description of
Parks’ appearance after being removed from the closet. While she
was revising her statement, Officer Jiminez (not a defendant) told
her the revisions were required because her statement was “not
matching with the other three officers’ statements”. These drafts,
and subsequent ones, were destroyed.2
Approximately two weeks later, the major use-of-force clerk,
Ms. Zuniga (not a defendant), reviewed Martinez’s statement and
requested additional revisions; Martinez complied. Approximately
one week later, Assistant Warden Villarreal (a defendant) called
Martinez into his office, informed her that her statement did not
match those of the other officers, and asked her to record the
incident in another inter-office communication (memo). The
Assistant Warden called Warden Carmona (a defendant) to the office;
they asked Martinez about “cliques” formed by other officers and
2
When deposed, Martinez stated she tore up each draft as she
wrote a subsequent one; however, at other times, she stated that
“they” disposed of the drafts, without identifying to whom she was
referring.
3
whether she “knew what it meant to put an inmate in ‘check’”.3
Martinez prepared the memo. When she delivered the memo to
Assistant Warden Villarreal the next day, 22 October 1998, he
seemed displeased, was rude to her, and asked why the memo was
longer than her witness statement.
That evening, Martinez was assigned by Major Davila (a
defendant) to the craft shop, which closed at 9:30 p.m. Just
before 9:30, after the inmates left, Martinez turned off the lights
and did a final security check, using her flashlight. Inmate
Guardiola suddenly appeared by the craft shop exit and stated he
was there to ask about being disciplined for failing to tuck in his
shirt and for not being respectful to Martinez. Martinez was very
frightened because: Guardiola was out of place and did not have
craft shop privileges; and, earlier that day, the officers in her
unit were told that a female officer in another unit had been
assaulted and raped when confronted by an inmate in an empty room.
Martinez told Guardiola to step back and motioned with her hands
for him to do so.
A subsequent affidavit, supporting a warrant for Martinez’s
arrest (the arrest is discussed infra), presents a different
version of the craft shop incident: Guardiola and Martinez were
involved in a relationship that included “written notes, the
3
At one point in her deposition, Martinez said this discussion
with Warden Carmona occurred on 21 October 1998; at another point,
on 22 October. And, she states in her affidavit that it occurred
on 22 October. Based on our review of the record, we assume the
discussion occurred on 21 October. In any event, the exact timing
is not a material issue. See, e.g., Colston v. Barnhart, 146 F.3d
282, 284 (5th Cir.) (en banc), cert. denied, 525 U.S. 1054 (1998).
4
promise of gifts, and the introduction of contraband into the
facility”; Martinez informed Guardiola she would be working in the
craft shop; Guardiola responded he would meet her there at 9:30
p.m.; he entered the craft shop by opening a security door with a
comb; Martinez turned out the lights; and they had sexual
intercourse. That affidavit states further: Major Davila observed
Martinez and Guardiola alone together in the dark craft shop; saw
Martinez place her arms around Guardiola; saw Guardiola remove his
shirt and place it on a table; “witnessed the two making motions
with their bodies in contact”; entered the craft shop; and saw
Guardiola tucking in his shirt.
According to Martinez: when Major Davila entered the shop, he
asked what was going on; she responded that Guardiola wanted to
talk about the disciplinary action she was bringing against him for
failing to tuck in his shirt earlier in the day; Major Davila had
Guardiola taken to administrative segregation; Martinez accompanied
Major Davila to the office of Assistant Warden Villarreal; there,
Martinez repeated her version of the events; Major Davila informed
her she would be charged with reckless endangerment for being alone
with an inmate; and, Assistant Warden Villarreal advised her she
would be charged with both criminal mischief and reckless
endangerment unless she resigned, but she refused because she had
done nothing wrong.
The next day, 23 October 1998, Assistant Warden Villarreal
reported the incident to the TDCJ Internal Affairs Division.
Internal Affairs Officer Melton interviewed Major Davila. Next,
5
Officer Melton and Internal Affairs Officer Mann interviewed
Martinez in Assistant Warden Villarreal’s office. According to
Martinez: they questioned her; accused her of performing oral sex
on Guardiola; urged her to confess and resign; became angry when
she refused; and ordered her to go to Warden Carmona’s office,
where she was strip-searched and her purse was searched.
In accordance with her normal work schedule, Martinez reported
for work on 26 October and testified at Guardiola’s disciplinary
hearing regarding his being out of place in the craft shop on 22
October. On 27 October, the day after the hearing, Guardiola was
interviewed by Internal Affairs Officer Melton; Guardiola provided
his version of the incident and of his relationship with Martinez.
The next day, 28 October, Martinez was called into Assistant
Warden Villarreal’s office, arrested, strip-searched, handcuffed,
and taken to a county jail by TDCJ Internal Affairs Officers.
Martinez was charged with “Violation of Civil Rights of Person in
Custody: Improper Sexual Activity with Person in Custody: Texas
Penal Code: Sec. 39.04: State Jail Felony”.4
Following an administrative hearing on 11 November 1998
(approximately two weeks after Martinez’s arrest), Warden Carmona
recommended Martinez’s dismissal, based on finding her “guilty”
with respect to the offense of “cohabitation with an offender”.
Pursuant to TDCJ Guidelines, a cohabitation finding mandates
dismissal. See Guidelines for Employee Disciplinary Actions, PD-
4
Martinez was indicted for intentional sexual intercourse with
an inmate. Subsequent to her termination, she was acquitted by a
jury.
6
22, Attachment A (Texas Department of Criminal Justice 1 May 1998).
In accordance with standard procedures, Warden Carmona’s
recommendation was individually reviewed by a TDCJ
Regional/Sectional Director, the TDCJ Director of Human Resources
and Staff Development, a TDCJ Legal Affairs representative, and the
TDCJ Deputy Director. On 10 January 1999, the TDCJ Director gave
final approval for Martinez’s dismissal. (TDCJ is a defendant, but
none of the individuals involved in reviewing Warden Carmona’s
recommendation are defendants.)
Martinez sued TDCJ in state court, claiming violations of the
Texas Whistleblower Act and the First Amendment. After TDCJ
removed the action to federal court, Martinez added as defendants
Major Davila, Assistant Warden Villarreal, and Warden Carmona.
Defendants moved for summary judgment, claiming: Eleventh
Amendment immunity for TDCJ and for the individual Defendants, in
their official capacity; and qualified immunity for the individual
Defendants, in their individual capacity.
The district court held: TDCJ and the individuals, in their
official capacity, were entitled to Eleventh Amendment immunity
against Martinez’s First Amendment retaliation claim; because of
the Texas Whistleblower Act’s waiver of sovereign immunity in state
court, the Eleventh Amendment did not bar Martinez’s Whistleblower
Act claims in federal court; and the individuals, in their
individual capacity, were not entitled to summary-judgment-
qualified-immunity against Martinez’s First Amendment claim.
II.
7
For this interlocutory appeal, TDCJ and the three individual
Defendants contest the denial of summary judgment on the
Whistleblower Act claim. Likewise, the individuals, in their
individual capacity, contest the denial of qualified immunity on
the First Amendment claim. (As noted, for that claim, summary
judgment was awarded TDCJ and the individual Defendants, in their
official capacity.)
A.
Regarding the district court’s holding that the Texas
Whistleblower Act, TEX. GOV’T CODE ANN. § 554, waives Texas’ immunity
in federal court, our jurisdiction arises under the collateral
order doctrine. See Sherwinski v. Peterson, 98 F.3d 849, 851 (5th
Cir. 1996) (holding States and State entities may appeal an order
denying Eleventh Amendment immunity). The denial of Eleventh
Amendment immunity is reviewed “de novo, as a question of law, like
other questions of subject matter jurisdiction”. Anderson v. Red
River Waterway Comm’n, 231 F.3d 211, 214 (5th Cir. 2000).
Unless expressly waived, the Eleventh Amendment bars an action
in federal court by, inter alia, a citizen of a state against her
own state, including a state agency. See, e.g., Hughes v. Savell,
902 F.2d 376, 377 (5th Cir. 1990) (citing Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). This includes, as
here, a supplemental state law claim seeking money damages.
Lapides v. Bd. of Regents of the Univ. System of Ga., 122 S. Ct.
1640, 1643 (2002); Kitchens v. Tex. Dep’t of Human Res., 747 F.2d
985, 986 (5th Cir. 1984) (citing Pennhurst, 465 U.S. at 121).
8
Martinez maintains TDCJ waived Eleventh Amendment immunity in
two respects: by removal of the action from state, to federal,
court; and under the Texas Whistleblower Act.
1.
In district court, TDCJ asserted Eleventh Amendment immunity;
and Martinez contested it. But, in so doing, she never raised her
current waiver-by-removal claim. Normally, we will entertain legal
issues raised for the first time on appeal only “in extraordinary
instances ... to avoid a miscarriage of justice”. Doleac v.
Michalson, 264 F.3d 470, 492 (5th Cir. 2001) (quoting Bayou Liberty
Ass’n, Inc. v. United States Army Corps of Eng’rs, 217 F.3d 393,
398 (5th Cir. 2000)); see also Stokes v. Emerson Elec. Co., 217
F.3d 353, 358 n.19 (5th Cir. 2000).
While this appeal was pending, however, the Supreme Court held
in Lapides, 122 S. Ct. at 1640, that a State’s removal to federal
court waived Eleventh Amendment immunity. We have reviewed for
plain error issues raised for the first time on appeal in criminal
cases when an intervening Supreme Court decision addressed the
issue being raised. See, e.g., United States v. Rios-Quintero, 204
F.3d 214, 215-16 (5th Cir. 2000). Our circuit, however, does not
appear to have addressed this situation in the civil context.
Several circuits will consider waived or forfeited
(collectively, “waived”) issues when there is an intervening
Supreme Court decision. In Holland v. Big River Minerals Corp.,
181 F.3d 597, 605-06 (4th Cir. 1999), the Fourth Circuit noted an
intervening change in the law, recognizing an issue not previously
9
available, can be an exception to the rule that the failure to
timely raise an issue in district court waives that issue on
appeal. This exception only “applies [, however,] when ‘there was
strong precedent’ prior to the change, ... such that the failure to
raise the issue was not unreasonable and the opposing party was not
prejudiced by the failure to raise the issue sooner”. Id. (quoting
Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143 (1967) (plurality
opinion)). In applying the exception, the Fourth Circuit concluded
an intervening Supreme Court opinion was not a sufficient change in
the law and no strong precedent prevented the party from earlier
raising the issue. Id. at 606.
The supervening decision doctrine of the District of Columbia
Circuit allows consideration of waived issues when the “supervening
decision has changed the law in appellant’s favor and the law was
so well-settled at the time of trial that any attempt to challenge
it would have appeared pointless” prior to the intervening
decision. United States v. Washington, 12 F.3d 1128, 1139 (D.C.
Cir. 1994); see also Brown v. M & M/Mars, 883 F.2d 505, 512-13 (7th
Cir. 1989).
The Federal Circuit follows a similar approach when there is
an intervening decision. See Forshey v. Principi, 284 F.3d 1335,
1355-58 (Fed. Cir. 2002) (en banc) (allowing consideration of
waived legal issues in appeals from the Court of Appeals for
Veteran Claims when: retroactive legislation is passed; there is
an intervening Supreme Court or Federal Circuit decision; the
10
correct law or standard of review is not argued by either party; or
a pro se litigant appeals).
The Tenth Circuit utilizes a much more lenient approach. When
there is an intervening change in the law, appellate review of
waived legal issues is allowed, particularly when the issues “are
questions of law, the proper resolution of which are beyond
reasonable doubt, and the failure to address the issues would
result in a miscarriage of justice”. Petrini v. Howard, 918 F.2d
1482, 1483 n.4 (10th Cir. 1990) (per curiam); see also Gray v.
Phillips Petroleum Co., 971 F.2d 591, 593 n.3 (10th Cir. 1992)
(noting an attorney’s fee issue was brought to the district court’s
attention even though the issue of law asserted on appeal was not
and applying an intervening Supreme Court decision foreclosing
attorney’s fees).
The Eleventh Circuit, however, has concluded that even a
remand by the Supreme Court for reconsideration in the light of an
intervening Court decision does not require the court to address
waived arguments. See United States v. Ardley, 273 F.3d 991 (11th
Cir. 2001). The denial of rehearing en banc in Ardley stated:
although an intervening decision would apply to cases on direct
appeal under the retroactivity doctrine, the procedural bar
doctrine (failure to raise the issue in the opening brief) is not
trumped by the retroactivity doctrine, id. at 992; and if Supreme
Court decisions applied without regard for procedural default
rules, then no procedural bar would ever be enforced. Id.
11
With these approaches to guide our decision, we see no sound
reason to depart now from our long established course of refusing,
absent extraordinary circumstances, to entertain legal issues
raised for the first time on appeal. See Doleac, 264 F.3d at 492.
Even if we were to adopt some form of the intervening decision
doctrine, it would not excuse Martinez’ procedural default.
(Again, she failed to raise her waiver-by-removal claim in district
court, raising it for the first time (as Appellee) in her response
brief to this court.) The law (this issue) was not so settled
prior to Lapides that raising her waiver-by-removal claim in
district court would have been pointless or futile. See, e.g.,
Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 393-98
(1998) (Kennedy, J., concurring); Gunter v. Atlantic Coast Line R.
Co., 200 U.S. 273, 284 (1906). Accordingly, we will not consider
her newly raised waiver-by-removal claim.
2.
As she did in district court, Martinez maintains that the
Texas Whistleblower Act’s waiver of state sovereign immunity in
Texas state court operates to waive Eleventh Amendment immunity in
federal court. Even when a State consents to suit in its own
courts, however, it may retain Eleventh Amendment immunity from
suit in federal court. See, e.g., Welch v. Dep’t of Highways &
Pub. Transp., 483 U.S. 468, 473-74 (1987); Fla. Dep’t of Health and
Rehabilitative Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147, 150
(1981); Magnolia Venture Capital Corp. v. Prudential Sec., Inc.,
151 F.3d 439, 443 (5th Cir. 1998), cert. denied, 525 U.S. 1178
12
(1999); Sherwinski, 98 F.3d at 851-52. A State’s consent to being
sued in federal court must “be unequivocally expressed”.
Pennhurst, 465 U.S. at 99; see also Lapides, 122 S. Ct. at 1644 (“a
‘clear’ indication of the State’s intent to waive its immunity”
required); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299,
305 (1990) (waiver must be “stated by the most express language or
by such overwhelming implication from the text as [will] leave no
room for any other reasonable construction” (internal quotation
marks omitted; quoting Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 239-40 (1985))). Further, for a state statute to waive
Eleventh Amendment immunity, “it must specify the State’s intent to
subject itself to suit in federal court”. Feeney, 495 U.S. at 306
(quoting Atascadero, 473 U.S. at 241; emphasis in original;
internal quotation marks omitted); see also Lapides, 122 S. Ct.
1643-44.
The relevant provisions of the Texas Whistleblower Act are for
the sovereign immunity waiver, § 554.0035, and venue, § 554.007.
The waiver provision states:
A public employee who alleges a violation
of this chapter may sue the employing state or
local governmental entity for the relief
provided by this chapter. Sovereign immunity
is waived and abolished to the extent of
liability for the relief allowed under the
chapter for violation of this chapter.
TEX. GOV’T CODE ANN. § 554.0035 (Vernon Supp. 2001)(emphasis added).
Linked with this waiver is the Act’s specifying that a public
employee may sue “in a district court of the county in which the
13
cause of action arises or in a district court of Travis County”.
TEX. GOV’T CODE ANN. § 554.007 (Vernon Supp. 2001).
Neither section evidences any intent by Texas to waive its
Eleventh Amendment immunity and subject itself to suit in federal
courts. In other words, the Act waives state sovereign immunity
only in Texas state courts. This is the only reasonable
construction of the Act. We discern no unequivocal expression or
overwhelming implication leaving “no room for any other reasonable
construction” in the Texas Whistleblower Act, see Feeney, 495 U.S.
at 305.
Therefore, we hold that, under this Act, Texas has not waived
its Eleventh Amendment immunity in federal court. As a result,
Martinez cannot pursue her Texas Whistleblower Act claim against
Defendants.
B.
The remaining issue concerns the First Amendment retaliation
claim, against Warden Carmona, Assistant Warden Villarreal and
Major Davilla, in their individual capacity. (Again, for that
claim, summary judgment was awarded TDCJ and the three individual
Defendants, in their official capacity.)
At issue is the denial of summary judgment for qualified
immunity. “A denial of [summary judgment based on] qualified
immunity is immediately appealable under the collateral order
doctrine, when based on an issue of law.” Rodriguez v. Neeley, 169
F.3d 220, 222 (5th Cir. 1999). For qualified immunity vel non, our
review is de novo. See Lukan v. N. Forest ISD, 183 F.3d 342, 345
14
(5th Cir. 1999), cert. denied, 529 U.S. 1019 (2000). For a
qualified immunity appeal, however, our review of any factual
disputes is limited to their materiality, not their genuineness.
See, e.g., Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,
490-91 (5th Cir. 2001); Colston v. Barnhart, 146 F.3d 282, 284 (5th
Cir.) (en banc), cert. denied, 525 U.S. 1054 (1998). Because the
district court did not identify which factual issues it considered
genuine, one option is to analyze the record to determine those
issues of fact the court likely considered genuine. Cf. Bazan, 246
F.3d at 491 (5th Cir. 2001), with Wagner v. Bay City, Tex., 227
F.3d 316, 320 (5th Cir. 2000). This ensures that an interlocutory
appeal on qualified immunity vel non is not defeated because the
district court failed to articulate its reasons for denying summary
judgment. For this record, however, we will assume Martinez’s
version of the facts is true in order to review the qualified
immunity issue.
To determine whether a government official is entitled to
qualified immunity, we apply a well-established, two-step analysis:
whether the official violated a clearly established constitutional
right; and, if he did, whether his conduct was objectively
reasonable. See, e.g., Lukan, 183 F.3d at 345-46. A prerequisite
to the qualified immunity analysis, then, is that Martinez must
show the violation of a clearly established right; she must allege
and show facts to support every element of a First Amendment
retaliation claim.
15
A First Amendment retaliation claim requires showing: the
employee suffered an adverse employment action; her speech involved
a matter of public concern; her interest in commenting on such
matters outweighs the defendant’s interest in promoting efficiency;
and the speech motivated the adverse employment action. Id. at
346. If the plaintiff makes this showing, the defendant must prove
by a preponderance of the evidence that, regardless of the
protected conduct, it would have taken the same action against the
plaintiff. Id.
We assume arguendo that: Martinez suffered an adverse
employment action (because she was terminated by TDCJ), see, e.g.,
Breaux v. City of Garland, Tex., 205 F.3d 150, 157 (5th Cir.),
cert. denied, 531 U.S. 816 (2000); her speech implicates a matter
of public concern (because it involved misconduct by corrections
officers), see, e.g., Thompson v. City of Starkville, Miss., 901
F.2d 456, 461-67 (5th Cir. 1990) (involving police misconduct); and
her speech motivated the decision to terminate her.
Nevertheless, the individual Defendants have shown that,
regardless of the protected conduct, TDCJ would have terminated
Martinez. See Beattie v. Madison County Sch. Dist., 254 F.3d 595,
603-04 (5th Cir. 2001); Lukan, 183 F.3d at 346; see also, Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977).
There is no evidence (and Martinez does not allege) that
inmate Guardiola’s report to Assistant Warden Villarreal and TDCJ
Internal Affairs about the alleged sexual relationship between
16
Guardiola and Martinez was requested or encouraged by the
individual Defendants. As noted, a violation involving
cohabitation with an inmate required Warden Carmona to recommend
dismissal; Martinez admits this. Only the TDCJ Executive Director,
Deputy Executive Director, or Division Director could impose
discipline less than dismissal. See Guidelines for Employee
Disciplinary Actions, PD-22, Attachment A (Texas Department of
Criminal Justice 1 May 1998). Furthermore, the Internal Affairs
Officer concluded, after her independent investigation, that
Martinez had sexual intercourse with inmate Guardiola; and both a
neutral magistrate and a grand jury agreed that there was
sufficient evidence to arrest and indict Martinez on the charge of
improper sexual activity with a person in custody. Consequently,
TDCJ had sufficient evidence to terminate Martinez; it terminated
her because of the cohabitation allegations, not because of her
alleged protected speech.
Therefore, because her claim for First Amendment retaliation
fails, Martinez has failed to show violation of a clearly
established constitutional right. Accordingly, the three
individual Defendants, in their individual capacity, are entitled
to qualified immunity.
III.
For the foregoing reasons, the denials of summary judgment for
all Defendants on the Texas Whistleblower Act claim and for the
three individual Defendants, in their individual capacity, on the
First Amendment retaliation claim are REVERSED; and this case is
17
REMANDED to district court for entry of judgment in favor of
Defendants.
REVERSED and REMANDED
18