Case: 15-41099 Document: 00514254098 Page: 1 Date Filed: 11/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-41099 November 29, 2017
Lyle W. Cayce
Clerk
FELIPE DEL ANGEL; BELINDA RENEE GARCIA; ALBERTO
GUERRERO; ANSELMO BARRERA; ARACELI MONTES, et al.
Plaintiffs–Appellants,
v.
LA JOYA INDEPENDENT SCHOOL DISTRICT; JOEL GARCIA, SR.; JUAN
JOSE GARZA, also known as J. J.; JESUS AVENDANO, also known as
Chuy; OSCAR SALINAS, also known as Coach; RICARDO VILLARREAL;
ESPERANZA OCHOA, also known as Espi; JUAN JOSE PENA, also known
as JJ; JOHNN V. ALANIZ,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CV-303
Before WIENER, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:*
Twenty-nine employees of the La Joya Independent School District sued
the school district, the seven members of the school district’s Board of Trustees,
a Hidalgo County Commissioner, and one school administrator, asserting state
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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tort and federal constitutional claims for employment political retaliation. All
Plaintiffs alleged that they suffered adverse employment action because they
did not support the political group to which all individual Defendants belonged.
The district court granted Defendants’ motion to dismiss all claims for failure
to state a claim on which relief can be granted. We affirm.
I
Twenty-nine plaintiffs (Plaintiffs), all of whom were employees of the La
Joya Independent School District (LJISD) at the time relevant to their
complaint, sued LJISD and nine named individuals, asserting state tort and
federal constitutional claims for employment political retaliation. The
following are factual allegations in the Plaintiffs’ Third Amended Petition,
which we accept as true for purposes of this appeal.
Defendant Joe Flores was County Commissioner for Hidalgo County
Precinct 3 and the “de facto financial head of a political organization/faction
known at ‘Team Liberty’” at all times relevant to the claims asserted. Flores
used his influence and control over western Hidalgo County politics, including
the LJISD Board of Trustees and LJISD supervisory employees, “as a tool to
punish the Plaintiffs for their failure to support Team Liberty in LJISD
elections of interest” to Flores. Through Team Liberty, Flores has effectively
controlled the LJISD Board of Trustees since 2012. Flores recruits and selects
candidates to run for positions on the Board, and “[i]n return, the successful
candidates use their positions as Board members to reward Team Liberty
supporters, punish LJISD employees who do not support Team Liberty
candidates, and further Flores’ political and financial agenda.”
The complaint alleged that each Plaintiff had “supported an opposition
candidate, or failed to provide requested support to ‘Team Liberty.’” It
continued that “Flores and the other Individual Defendants took adverse
employment action against all of the Plaintiffs, including termination,
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demotion, transfer, reassignment, or refusal to hire, in retaliation for their
protected activities.” The complaint further alleged facts that describe Flores’s
allegedly illegal political activities not at issue in this lawsuit, and the
complaint stated that “[w]ith respect to all of the employment actions taken
against the Plaintiffs, either the Defendant Flores-controlled LJISD Board of
trustees itself, [or] the LJISD Superintendent pursuant to the authority
delegated by the Flores-controlled Board, took the complained-of action.” The
LJISD superintendent was not named as a defendant.
The complaint described the purportedly adverse employment actions
taken with respect to all twenty-nine Plaintiffs and alleged, among other
things, violations of the First and Fourteenth Amendments. The district court
construed the complaint as raising claims for both individual and municipal
liability under 42 U.S.C. § 1983, conspiracy to violate Plaintiffs’ civil rights
under 42 U.S.C. § 1985(3), state law civil conspiracy, and state law tortious
interference with employment relations. The complaint described injuries
including “mental pain and anguish because of Defendants’ wrongful acts;
injury to [Plaintiffs’] good name[s], character[s] and to their general and
professional reputation[s]; embarrassment and humiliation; and loss of
enjoyment of life.”
Plaintiffs filed their lawsuit in state court, and Defendants removed to
federal court. Defendant Joe Flores filed an unopposed motion to dismiss the
causes of action against him pursuant to Federal Rule of Civil Procedure 4(m)
for lack of service, which the district court granted.
After Plaintiffs amended their complaint at the district court’s request,
Defendants filed a motion to dismiss in part for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and in part for
failure to state a claim upon which relief can be granted under Rule 12(b)(6),
or, in the alternative, a motion for judgment on the pleadings under Rule 12(c).
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In opposing the motion, Plaintiffs asked for leave to again amend their
complaint. The district court granted the Defendants’ motion, dismissing all
of Plaintiffs’ claims for failure to state a claim, and denied Plaintiffs leave to
amend. This appeal followed.
II
This Court reviews a district court’s ruling on a Rule 12(b)(6) motion to
dismiss for failure to state a claim de novo, applying the same standard as the
district court. 1 “To 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.’” 2 A claim is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 3
III
We first consider the claims against the individual Defendants under 42
U.S.C. § 1983, which establishes that anyone who, “under color of” state law,
deprives another of rights granted by the Constitution is liable for that
deprivation. “A section 1983 complaint must state specific facts, not simply
legal and constitutional conclusions.” 4 “Misuse of power, possessed by virtue
of state law and made possible only because the wrongdoer is clothed with the
authority of state law, is action taken ‘under color of state law.’” 5 “Well settled
Section 1983 jurisprudence establishes that supervisory officials cannot be
held vicariously liable for their subordinates’ actions. Supervisory officials
1 Nolen v. Nucentrix Broadband Networks Inc., 293 F.3d 926, 928 (5th Cir. 2002).
2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted) (quoting Bell Atl. Corp.
v. Twombley, 550 U.S. 544, 570 (1955)).
3 Id.
4 Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).
5 Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S.
299, 325-26 (1941)), overruled on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978).
4
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may be held liable only if: (i) they affirmatively participate in acts that cause
constitutional deprivation; or (ii) implement unconstitutional policies that
causally result in plaintiff's injury.” 6
“[T]he Supreme Court has consistently held that ‘the First Amendment
forbids government officials to discharge or threaten to discharge public
employees solely for not being supporters of the political party in power, unless
party affiliation is an appropriate requirement for the position involved.’” 7
This doctrine also applies “when an employment decision is based upon
support of and loyalty to a particular candidate as distinguished from a
political party.” 8 A plaintiff asserting a First Amendment employment
retaliation claim “must show that (1) an adverse employment action was
taken, (2) speech involving a matter of public concern was uttered, (3) the
employee’s interest in speaking outweighs the employer’s interest in efficiency,
and (4) the protected speech precipitated the adverse employment action.” 9
“Employer actions that can result in liability include more than just actual or
constructive discharge from employment. Adverse employment actions can
include discharges, demotions, refusals to hire, refusals to promote, and
reprimands,” as well as a transfer that is “equivalent to a demotion.” 10
With respect to the twelve plaintiffs that the district court concluded had
failed to allege that political activity was “a substantial or motivating factor of
any alleged adverse employment action,” Plaintiffs argue that it was sufficient
for the complaint to allege that “Defendant Flores used his influence and
6 Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992) (citations omitted).
7 Brady v. Fort Bend Cty., 145 F.3d 691, 702 (5th Cir. 1998) (citation omitted) (quoting
Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990)).
8 Jordan v. Ector Cty., 516 F.3d 290, 295-96 (5th Cir. 2008) (quoting Correa v. Fischer,
982 F.2d 931, 935 (5th Cir. 1993)).
9 McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007).
10 Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir. 1999) (citations omitted).
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control” over the school board and school district supervisory employees “as a
tool to punish the Plaintiffs” for their political activities. But in addition to
suffering from other defects, all of the allegations made with respect to these
twelve plaintiffs either suggest no causal link at all or are conclusory: they do
not allege what actions Flores or any Defendant took that would show that the
alleged adverse employment actions were taken for political reasons. The
general statement that “[t]he Defendants intimidated the supporters of the
rival political faction by promising that if the supporters did not join Team
Liberty and follow Defendant Flores, or join Ramon Garcia’s lawsuit, they
would lose their jobs” also is not enough: it does not specify to whom such
statements were made, or when, or by which Defendant, and it also does not
state which plaintiffs actually were terminated pursuant to the threat.
With respect to the fourteen plaintiffs that the district court concluded
“claim[ed] some form of retaliation but [did] not identify who took the
retaliatory action” or “claim[ed] some form of retaliation but . . . allege[d] that
the action was taken by non-defendant(s),” Plaintiffs point to a portion of the
complaint that states that “Defendant Flores and the other Individual
Defendants” took all of the adverse employment actions. But based on a review
of the specific allegations with respect to each plaintiff, that can only be true if
the adverse actions are attributed to LJISD indirectly through the named
individuals who did in fact take the actions. The district court thus properly
concluded that none of these fourteen plaintiffs stated a claim against any
individual Defendant. As for the remaining three plaintiffs, the district court
correctly identified deficiencies in their claims. All Plaintiffs’ § 1983 claims
against individual Defendants thus were properly dismissed.
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IV
We next consider the municipal liability claims under § 1983. Under
Monell v. Department of Social Services, 11 a local government or government
entity may be sued “when execution of [the] government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury [for which] the government
as an entity is responsible under § 1983.” 12 In short, “[a] claim of municipal
liability under Section 1983 ‘requires proof of three elements: a policymaker;
an official policy; and a violation of constitutional rights whose “moving force”
is the policy or custom.’” 13 However, “a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” 14
Official policy may arise out of either a “policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by the
[district] . . . or by an official to whom the [district] ha[s] delegated policy-
making authority” or a “persistent, widespread practice of [district] officials or
employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom
that fairly represents [district] policy.” 15 In the latter case, “[a]ctual or
constructive knowledge of such custom must be attributable to the governing
body of the district or to an official to whom that body had delegated policy-
11 436 U.S. 658 (1978).
12 Id. at 694.
13 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866 (5th
Cir. 2012) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)).
14 Monell, 436 U.S. at 691.
15 Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (alterations in
original) (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)); see also Sharp v. City
of Hous., 164 F.3d 923, 935 (5th Cir. 1999) (“[A] custom or practice of deliberate indifference
to rights need not be followed at every juncture in order to constitute ‘tacit authorization or
encouragement of wrongful conduct.’”).
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making authority.” 16 “Texas law is clear that final policymaking authority in
an independent school district . . . rests with the district’s board of trustees.” 17
Municipal liability under the First Amendment and § 1983 therefore
could be established if the adverse employment actions were taken as part of
a persistent and widespread practice of violating First Amendment rights, and
if actual or constructive knowledge of such practice could be attributed to the
Board of Trustees. As the Supreme Court has stated, § 1983 “authorizes suit
‘for constitutional deprivations visited pursuant to governmental “custom”
even though such a custom has not received formal approval through the body’s
official decisionmaking channels.’” 18
The district court dismissed Plaintiffs’ municipal liability claims on the
ground that the Board of Trustees itself did not effectuate the various adverse
employment actions at issue. The complaint alleges in a single sentence that
“[t]he Individual Defendant board members and Flores met before the election
and decided to take the adverse employment action complained of herein.”
However, this statement is a conclusory allegation devoid of any
particularities, and it comes at the end of a paragraph in the Complaint that
does not pertain to any of specific adverse employment actions. This bare
allegation is inadequate to state a Monell claim.
Ten plaintiffs specifically allege that they were the victims of an adverse
employment action due to the failure to support Team Liberty. But none of
these allegations provide factual support for the conclusion that an official or
unofficial LJISD policy was the cause of the adverse employment action. The
allegations are based on speculation by LJISD employees or statements and
16 Eugene, 65 F.3d at 1304.
17 Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).
18 City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S.
at 690-91).
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actions by non-defendant employees who supported Team Liberty that cannot
be attributed to a LJISD policy.
V
The district court also construed the complaint as raising claims for
conspiracy to violate federal civil rights under 42 U.S.C. § 1985(3). A plaintiff
suing under that statute must allege:
(1) a conspiracy involving two or more persons; (2) for the purpose
of depriving, directly or indirectly, a person or class of persons of
the equal protection of the laws; and (3) an act in furtherance of
the conspiracy; (4) which causes injury to a person or property, or
a deprivation of any right or privilege of a citizen of the United
States. 19
The district court held that Plaintiffs had failed to state claim under § 1985(3),
because “there can only be a deprivation of the rights of a plaintiff when the
action of the defendants is otherwise illegal,” 20 and here, “Plaintiffs have not
alleged any illegal act separate and apart from the alleged deprivation of the
First and Fourteenth Amendment rights.” But this court’s recitation of the
relevant legal standard in McLellan v. Mississippi Power & Light Co. explained
that the alleged conspiracy must have violated some law “independent of
section 1985(3).” 21 As Plaintiffs correctly argue, they undisputedly have
alleged as much: “[t]he alleged violation of the First and Fourteenth
Amendment is a violation of some law independent of section 1985(3).”
Nonetheless, the district court determined that Plaintiffs’ § 1985 claim
also fails because they have not alleged membership in a class of persons whose
equal protection rights may be violated pursuant to the statute, and this court’s
precedent on that question commands that result. We have stated that “[i]t is
19 Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
20 McLellan v. Miss. Power & Light Co., 545 F.2d 919, 923 (5th Cir. 1977).
21 Id. at 926.
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well-settled law that the discriminatory animus behind an alleged violation of
section 1985(3) must be racially based or in some other way class-based.” 22
Moreover, the Supreme Court has stated that it “f[ou]nd difficult the question
whether § 1985(3) provided a remedy for every concerted effort by one political
group to nullify the influence of or do other injury to a competing group by use
of otherwise unlawful means,” because “[t]o accede to that view would go far
toward making the federal courts, by virtue of § 1985(3), the monitors of
campaign tactics in both state and federal elections, a role that the courts
should not be quick to assume.” 23 Plaintiffs’ § 1985(3) claims were properly
dismissed.
VI
We next turn to the Plaintiffs’ state law civil conspiracy claims. In Texas,
the elements of an actionable civil conspiracy are: “(1) two or more persons;
(2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) one or more unlawful, overt acts; and (5) damages as a
proximate result.” 24 The district court dismissed Plaintiffs’ civil conspiracy
claims because the adverse employment actions allegedly taken against
them—demotion, dismissal, extra duties, and so forth—are not “unlawful” in
themselves.
“A civil conspiracy to be actionable must be one unlawful in itself or one
accomplished by unlawful means; it consists of acts which would have been
actionable against the conspirators individually.” 25 “There must be an
agreement or understanding between the conspirators to inflict a wrong
22 Galloway v. Louisiana, 817 F.2d 1154, 1159 (5th Cir. 1987).
23 United Bhd. of Carpenters & Joiners of Am., Local 610, AFL–CIO v. Scott, 463 U.S.
825, 836 (1983).
24 Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).
25 Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex. 1963).
10
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against, or injury on, another, a meeting of minds on the object or course of
action, and some mutual mental action coupled with an intent to commit the
act which results in injury.” 26 “[I]n short, there must be a preconceived plan
and unity of design and purpose, for the common design is of the essence of the
conspiracy.” 27 Thus, it is not dispositive that adverse employment actions
would not be unlawful if taken without improper intent. Plaintiffs could have
stated a claim for civil conspiracy if they alleged a “meeting of the minds” with
respect to the reason for the adverse actions—that is, retaliation. 28
The complaint states that “Individual Defendants, and others reached
an agreement to retaliate against the Plaintiffs for exercising their rights of
political affiliation” and that “Individual Defendants and others, acting
through the LJISD Board of Trustees and/or the Superintendent, acted in
conformance with this plan by terminating the employment of certain
Plaintiffs.” It also states that “[t]he Individual Defendant board members and
Flores met before the election and decided to take the adverse employment
action complained of herein.” These allegations are conclusory and are not
enough to state a claim that any particular Defendants conspired to use their
influence as members of the Board of Trustees to effectuate adverse
employment actions against LJISD employees. Additionally, because no
Plaintiff has properly stated a claim for retaliation against any individual
Defendant, each civil conspiracy claim must also fail for the same reason: no
26 Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857
(Tex. 1968) (quoting 15A CORPUS JURIS SECUNDUM CONSPIRACY § 2).
27 Id. (emphasis added) (quoting 15A CORPUS JURIS SECUNDUM CONSPIRACY § 2).
28 See, e.g., Vacca v. Farrington, 85 S.W.3d 438, 441-42 (Tex. App.—Texarkana 2002,
no pet.) (section 1983 conspiracy claim stated where prison officials allegedly “conspired in
their efforts to retaliate against [plaintiff] for his initiation of a federal complaint”); Rennels
v. NME Hosps., Inc., 965 S.W.2d 736, 740 (Tex. App.—El Paso 1998) (civil conspiracy claim
stated based upon retaliation claim against hospital officials), aff’d sub nom. NME Hosps.,
Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999).
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Plaintiff has alleged that an adverse employment action was taken against him
or her by an individual Defendant with a retaliatory purpose. Each thus has
failed to allege at least one of three necessary elements of a civil conspiracy
claim: an overt act, proximate causation, or damages.
VII
Finally, we address Plaintiffs’ state law tortious interference with
employment relations claims. A claim of tortious interference with
employment relations must allege willful and intentional interference with an
employment arrangement that proximately causes damage to the plaintiff. 29
To succeed on such a claim, a plaintiff must show “that the defendant acted in
a fashion so contrary to the corporation’s best interests that his actions could
only have been motivated by personal interests.” 30 “[A] party cannot tortiously
interfere with a contract to which he is already a party” 31 unless an “agent
acted willfully and intentionally to serve the agent’s personal interests at the
[principal’s] expense.” 32 Additionally, “if a corporation does not complain about
its agent’s actions, then the agent cannot be held to have acted contrary to the
corporation’s interests.” 33 The latter rule may apply to public employers as
well as private corporations. 34
The district court dismissed all of Plaintiffs’ tortious interference claims,
both on the ground that no Plaintiff stated a claim for retaliation by a
Defendant and because any theory of interference by an agent of LJISD would
29 See Holloway v. Skinner, 898 S.W.2d 793, 795-96 (Tex. 1995).
30 Id. at 796.
31 Hood v. Edward D. Jones & Co., 277 S.W.3d 498, 502-03 (Tex. App.—El Paso 2009).
32 Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex. 1998).
33 Id.
34 See, e.g., Newman v. Kock, 274 S.W.3d 697, 703 (Tex. App.—San Antonio 2008, no
pet.) (rejecting tortious interference claim brought by tenured professor against state
university officials, because “there [was] no evidence suggesting that [defendants] would
personally benefit from [plaintiff’s] absence, nor was there any evidence that [the university]
complained or otherwise disapproved of [defendants’] actions”).
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require both a claim that the agent acted “willfully and intentionally to serve
the agent’s personal interests at [LJISD’s] expense” and a complaint by LJISD
itself. 35
As with Plaintiffs’ civil conspiracy claims, the tortious interference
claims fail because no Plaintiff has alleged that a Defendant took retaliatory
adverse action against him or her. Additionally, although Plaintiffs allege that
LJISD officials exceeded the scope of their authority for personal reasons, the
Board of Trustees has not complained of their actions. Tortious interference
arises when the will of the individuals properly in control of an entity has been
thwarted and thus the entity itself has been harmed. But here, LJISD has
suffered no direct harm as a result of any improper actions taken by
Defendants, and its representatives have made no objection. Accordingly, the
tortious interference claims fail.
Because Plaintiffs have not stated claims under § 1983 against any
individual Defendant and have not stated any state law tort claims, we need
not address whether Defendants are entitled to qualified or statutory
immunity, or whether Plaintiffs’ state law claims are barred by a failure to
exhaust state administrative remedies.
VIII
Plaintiffs ask that we compel the district court to grant them leave to
amend their complaint. Except for a single amendment prior to the filing of a
responsive pleading, “a complaint may be amended only by leave of the district
court, and, while such leave is to be freely given when justice so requires, the
decision is left to the sound discretion of the district court and will only be
reversed on appeal when that discretion has been abused.” 36 The district court
35Powell Indus., 985 S.W.2d at 457.
36United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387
(5th Cir. 2003).
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may consider a number of factors in deciding whether to grant leave to amend,
“including undue delay, bad faith or dilatory motive on the part of the movant,
repeated failures to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, and futility of the amendment.” 37
In responding to Defendants’ motion to dismiss below, Plaintiffs
requested leave to “re-plead their claims in compliance with [Federal] Rule [of
Civil Procedure] 7(a)” in the event that the district court granted the motion.
Plaintiffs had already amended their original complaint twice—once in state
court and once on the district court’s order—and they did not provide a
justification in their response to Defendants’ motion to dismiss for why leave
to amend further was necessary, nor did they elaborate as to the additional
facts they would assert in a third amended complaint. Moreover, as
Defendants point out, this court on multiple occasions has found no abuse of
discretion where a district court declined to allow a third opportunity to amend
a complaint. 38 The district court did not err by declining to do so here.
* * *
We AFFIRM the district court’s judgment dismissing all claims.
37 Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 566 (5th Cir. 2003).
38 See, e.g., Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006)
(“Plaintiffs had three attempts to produce a sufficient complaint. The [district] court
dismissed the complaint and denied leave to amend only after the third insufficient
attempt.”)).
14