Penny Corn v. MS Dept of Public Safety, et

Case: 19-60247 Document: 00515360474 Page: 1 Date Filed: 03/26/2020

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 19-60247 March 26, 2020
Lyle W. Cayce
PENNY NICHOLS CORN; TWYLA JENNINGS, Clerk

Plaintiffs - Appellants

v.

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; ALBERT SANTA
CRUZ, Individually and in his official capacity as former Commissioner of the
Mississippi Department of Public Safety; MARSHALL FISHER, In his official
capacity as Commissioner of the Mississippi Department of Public Safety,

Defendants - Appellees

Appeal from the United States District Court
Southern District of Mississippi

Before DAVIS, SMITH, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This is a First Amendment retaliation action stemming from the
termination of two state employees for allegedly reporting an internal
investigation into patrol officers’ issuing non-existent traffic violations.
Plaintiffs Penny Nichols Corn (Corn) and Twyla Jennings (Jennings) (jointly,
Plaintiffs) appeal the district court’s order granting several motions for
judgment on the pleadings brought forth by Mississippi Department of Public
Safety (MDPS), Marshall Fisher (Fisher), and Albert Santa Cruz (Cruz)
(collectively, Defendants).
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No. 19-60247
Because sovereign immunity bars Plaintiffs’ claims and their complaint
fails to state a claim for First Amendment retaliation, we AFFIRM.
I.
Given that this appeal involves a Federal Rule of Civil Procedure (Rule)
12(c) ruling, we are cabined to the operative pleading—here, the First
Amended Complaint—and must accept the allegations therein as true. 1
MDPS and the National Highway Traffic Safety Administration
Plaintiffs were employees with MDPS’s Division of the Mississippi Office
of Highway Safety. Corn initially served as an Office Director, but thereafter,
Mississippi’s then-Governor Phil Bryant named her as “the Governor’s
representative of the Mississippi Office of Highway Safety.” Jennings was a
Division Director. At all relevant times, Jennings acted as Corn’s assistant,
and “the two collaborated in evaluating” state troopers’ “false claims and how
to report the false claims to” the National Highway Traffic Safety
Administration (NHTSA). This is the extent of Plaintiffs’ allegations with
regard to their duties and functions as Office Director, Governor
Representative, and Division Director (respectively).
According to Plaintiffs, MDPS and Mississippi Highway Patrol received
“two grants from the [NHTSA]” in furtherance of (1) enforcing laws prohibiting
driving while under the influence; (2) reducing impaired driving fatalities; and
(3) financing overtime pay for state troopers writing citations to impaired
drivers.
“Ghost Tickets”
In Paragraph 10 of the operative complaint, Plaintiffs allege that they
learned from a highway patrolman that the Office of the Mississippi Highway

1“In ruling [on a Rule 12(c) dismissal], the district court is confined to the pleadings
and must accept all allegations contained therein as true.” Hughes v. Tobacco Inst., Inc., 278
F.3d 417, 420 (5th Cir. 2001).
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No. 19-60247
Patrol was conducting an Internal Affairs investigation into whether state
troopers were writing “ghost tickets” 2 in order to receive overtime pay under
the NHTSA grants.
On October 3, 2016 3, Corn voiced her concerns to MDPS officials, Colonel
Kevin Meyers and Deputy Administrator Ken Magee, regarding the
investigation of the “ghost tickets.”
Paragraphs 12 and 15 are inconsistent. Paragraph 12 states that on
October 5, Corn first “reported by email and telephone conversation” to an
NHTSA employee, Brian Jones, concerning internal affairs’ “ghost ticket”
inquiry.
In Paragraph 15, Plaintiffs allege that on October 4, Corn received a call
from then-Commissioner Cruz and other MDPS officials including Kevin
Meyers and Ken Magee. During the call, she explained how she learned of the
internal investigation and notified “NHTSA of the investigation.” After the
call, Corn transcribed the conversation to an email sent to the Governor’s
office.
To reconcile, we assume that Corn contacted MDPS officials first on
October 4 before contacting NHTSA on October 5.
On October 6, Corn sent a follow-up email to Brian Jones regarding the
investigation, and she also copied the MDPS officials (whom she previously
conversed with).
As a direct and proximate cause of Corn’s reporting, NHTSA allegedly
ceased all grant funding which prompted the notification of the Governor.

2 Ghost tickets are falsified tickets issued to drivers who are deceased or nonexistent.
3 Unless stated otherwise, the events within this subsection occurred in 2016.
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No. 19-60247
Corn continued to discuss the investigation with Jennings, and both of
them allegedly stayed “in contact with the NHTSA officials and remain subject
to a subpoena to testify concerning these matters.”
In mid-October, Cruz terminated Corn, and the following month, he also
terminated Jennings. While Plaintiffs were not given an explanation for the
termination, they allege that their termination was “a direct and proximate
result of their meeting, planning, and notifying NHTSA of the falsely claimed
overtime made pursuant to the ghost tickets.”
II.
In October 2017, Plaintiffs initiated this action against Defendants.
Plaintiffs alleged that Defendants violated their First Amendment rights via
retaliation, by and through 42 U.S.C. § 1983. They also asserted a claim under
the Mississippi Tort Claims Act (MTCA) for wrongful discharge. Their prayer
of relief included the following: (1) monetary and injunctive relief against
MDPS; (2) declaratory and injunctive relief against Fisher in his official
capacity as the MDPS Commissioner; and (3) declaratory relief against Cruz’s
official and individual capacities and monetary relief against Cruz’s individual
capacity. The injunction against MDPS and Fisher is to immediately reinstate
Plaintiffs to their former positions and include all seniority and past benefits.
Defendants moved for judgment on the pleadings for failing to state a
First Amendment retaliation claim, Eleventh Amendment protection, and
qualified immunity. The district court granted the motions and entered
judgment in Defendants’ favor. Plaintiffs are appealing the court’s order and
judgment.

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III.
Our Eleventh Amendment and Federal Rule of Civil Procedure 12(c)
discussion is under de novo review. See AT&T Commc’ns v. BellSouth
Telecomm. Inc., 238 F.3d 636, 643 (5th Cir. 2001) (“Whether a state is entitled
to Eleventh Amendment immunity is a question of law that this court reviews
de novo.”); see also United States v. 0.073 acres of land, more or less, situate in
Pars. of Orleans & Jefferson, 705 F.3d 540, 543 (5th Cir. 2013) (“We review de
novo a grant of judgment on the pleadings under Federal Rule of Civil
Procedure 12(c).”).
A.
Sovereign Immunity
Pursuant to the Eleventh Amendment, a state’s sovereign immunity in
federal court extends to private suits against state agencies, state
departments, and other arms of the state. See P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Richardson v. S. Univ., 118
F.3d 450, 452 (5th Cir. 1997) (stating that sovereign immunity protects “arms
of the state”).
Plaintiffs are suing MDPS; Fisher in his official capacity; and Cruz in his
individual and official capacity as the former MDPS Commissioner.
Defendants receive arm-of-the-state recognition as they are under the control
and direction of the State of Mississippi. See Whitfield v. City of Ridgeland,
876 F. Supp. 2d 779, 783−84 (S.D. Miss. 2012) (finding that MDPS and MDPS
Commissioner entitled to Eleventh Amendment immunity); see also King v.
Miss. Highway Patrol, 827 F. Supp. 402, 403–04 (S.D. Miss. 1993) (holding that
the MDPS Commissioner is under control and supervision of the governor). In
other words, Plaintiffs’ claims are directly against a sovereign. Cf. Humphries
v. Various Fed. USINS Emps., 164 F.3d 936, 941 (5th Cir. 1999) (stating that

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an action “against a government agent in his official capacity, however, is
nothing more than a suit directly against the sovereign”).
Given that Plaintiffs’ section 1983 and MTCA claims are against a
sovereign, the Eleventh Amendment immunizes Defendants, unless one of the
following exceptions to immunity applies:
The Eleventh Amendment bars federal “suits against a state, a state
agency, or a state official in his official capacity unless that state has waived
its sovereign immunity or Congress has clearly abrogated it.” Bryant v. Tex.
Dep’t of Aging & Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (internal
quotations and citation omitted); Cozzo v. Tangipahoa Par. Council—President
Gov’t, 279 F.3d 273, 280–81 (5th Cir. 2002) (“When a state agency is the named
defendant, the Eleventh Amendment bars suits for both money damages and
injunctive relief unless the state has waived its immunity.”). The third
exception to overcome Eleventh Amendment immunity is the Ex parte Young
exception—which requires that there be a request for prospective relief against
state officials who are committing an ongoing federal violation. 209 U.S. 123
(1908); Verizon Maryland Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635,
645 (2002) (stating that the Ex Parte Young exception must be an ongoing
violation of federal law and the complaint must seek equitable relief properly
characterized as prospective).
MTCA. Beginning with Plaintiffs’ state claim against MDPS for
injunctive and monetary relief, the State of Mississippi explicitly preserved its
sovereign immunity as to federal litigation when it promulgated MTCA. See
McGarry v. Univ. of Miss. Med. Ctr., 355 F. App’x 853, 856 (5th Cir. 2009) (per
curiam) (“Nothing contained in this chapter shall be construed to waive the
immunity of the state from suit in federal courts . . . .”) (quoting MISS. CODE.
ANN. § 11–46–5(4)); accord Sherwinski v. Peterson, 98 F.3d 849, 851–52 (5th
Cir. 1996) (recognizing that “[a] state does not waive Eleventh Amendment
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No. 19-60247
immunity in federal courts merely by waiving sovereign immunity in its own
courts”). Moreover, as it relates to Plaintiffs’ request for injunctive relief for
this alleged state violation, their MTCA claim is still precluded under
fundamental sovereign immunity principles. Cf. Clay v. Tex. Women’s Univ.,
728 F.2d 714, 716 (5th Cir. 1984) (“[T]he Supreme Court has held that states
and state agencies are . . . immune as entities from suits for prospective
injunctive relief.”) (citation omitted). Plaintiffs’ state claim—insofar as it seeks
damages and an injunction against MDPS—is therefore barred under
sovereign immunity and was properly dismissed by the district court. Id.; see
also Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and
Human Res., 532 U.S. 598, 609 n.10 (2001) (noting that “[s]tates . . . are
immune from suits for damages in federal court”).
As it relates to MDPS Commissioner defendants (Fisher and Cruz 4) sued
in their official capacities, Plaintiffs’ state claim is grounded in declaratory and
injunctive relief. However, state officials cannot be sued for violations of state
law in federal court, even under the Ex Parte Young exception. Pennhurst
State Sch. and Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (We cannot
“instruct[] state officials on how to conform their conduct to state law.”). Thus,
Fisher and Cruz in their official capacities are immune from Plaintiffs’ MTCA
claim.
Plaintiffs also cannot hold Cruz “personally liable for acts or omissions
occurring within the course and scope of [Cruz’s] duties.” MISS. CODE ANN. §
11-46-7(2); Lefoldt ex rel. Natchez Reg’l Med. Ctr. Liquidation Tr. v. Rentfro,

4 With regard to his official capacity, Cruz has since retired from this position, and
Commissioner Fisher currently holds this MDPS post. “[W]hen officials sued in their official
capacities leave office, their successors automatically assume their role in the litigation.”
Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017). In turn, all federal and state claims against
Cruz in his official capacity have been assumed by Fisher. Id.

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853 F.3d 750, 752 (5th Cir. 2017) (“The MTCA protects employees of a
governmental entity from being held personally liable for acts or omissions
that occur within the course and scope of their employment.”), certified
question answered, 241 So. 3d 565 (Miss. 2017). There are no allegations that
Cruz acted outside of his Commissioner duties during the relevant time period.
Consequently, this state claim against Cruz in his individual capacity was
correctly dismissed.
First Amendment Retaliation Claim. Sovereign immunity prohibits
Plaintiffs from seeking injunctive relief against MDPS under their retaliation
claim. MDPS has not specifically waived its immunity from suit in federal
court, and “Congress has not expressly waived sovereign immunity for § 1983
suits.” Richardson, 118 F.3d at 453; see id. (“[I]t is well established that only
upon a showing that Congress expressly intended to abrogate sovereign
immunity may we bypass the sovereign immunity inquiry in suits against
States or their agencies.”). And as mentioned above, despite Plaintiffs’ prayer
requesting an injunction, MDPS is nonetheless protected under the Eleventh
Amendment. Cf. Clay, 728 F.2d at 716; Cozzo, 279 F.3d at 280–81. The
district court’s dismissal of this federal claim—insofar that it seeks an
injunction against MDPS—was appropriate and therefore is affirmed.
Next, we look to Plaintiffs’ prayer for declaratory relief against Fisher
and Cruz in their official capacities. Neither individual defendant has waived
his immunity as an MDPS Commissioner, leaving the Ex Parte Young
exception. “To meet the Ex Parte Young exception, a plaintiff’s suit alleging a
violation of federal law must be brought against individual persons in their
official capacities as agents of the state, and the relief sought must be
declaratory or injunctive in nature and prospective in effect.” Aguilar v. Tex.
Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). However, the
Supreme Court limits the Ex Parte Young exception to “cases in which a
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No. 19-60247
violation of federal law by a state official is ongoing as opposed to cases in
which federal law has been violated at one time or over a period of time in the
past.” Papasan v. Allain, 478 U.S. 265, 277−78 (1986). In other words,
Plaintiffs must show “that [Fisher is currently] violating federal law, not
simply that the defendant has done so.” NiGen Biotech, L.L.C. v. Paxton, 804
F.3d 389, 394 (5th Cir. 2015) (emphasis in original).
Here, Plaintiffs seek a declaratory judgment that Fisher and Cruz
violated the First Amendment. This prayer for relief is fundamentally
retrospective because it does not relate to an ongoing violation of their federal
rights; instead, it pertains to Plaintiffs’ 2016 termination. The Ex parte Young
doctrine does not permit “a declaratory judgment that respondent violated
federal law in the past” as we have here. Green v. Mansour, 474 U.S. 64, 74
(1985) (Brennan, J., dissenting). Thus, MDPS Commissioner defendants
remain immune to Plaintiffs’ First Amendment claim.
What remains under this federal claim is Plaintiffs’ (1) injunctive relief
request against Fisher in his official capacity and Cruz as an individual; and
(2) monetary relief against Cruz in his individual capacity.
Plaintiffs are seeking to be reinstated to their former positions. In
Warnock v. Pecos Cty., we stated that the Ex parte Young doctrine was an
appropriate vehicle for pursuing reinstatement to a previous job position—as
the case here. See 88 F.3d 341, 343 (5th Cir. 1996). The district court therefore
correctly ruled that Plaintiffs’ injunctive prayer is not subject to the Eleventh
Amendment’s jurisdictional bar. As to the monetary relief against Cruz
individually, “sovereign immunity does not erect a barrier against suits to
impose individual and personal liability.” Lewis v. Clarke, 137 S. Ct. 1285,
1290 (2017) (internal quotation marks omitted). In turn, what is in our
jurisdictional purview is Plaintiffs’ prayer for injunctive relief as it relates to

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their retaliation claim against Fisher and Cruz and the monetary damages as
it pertains to Cruz.
B.
Failure to State a Claim for First Amendment Retaliation
Now reviewing the merits of this First Amendment action, we determine
whether Plaintiffs are entitled to First Amendment protection. The district
court determined that Plaintiffs failed to plead a plausible claim because
Plaintiffs’ statements were not protected as the alleged speech was not outside
of their ordinary job duties. Plaintiffs maintain that their communications
were made as citizens, rather than employees—thus, outside of their job duties
and warranting First Amendment protection. We agree with the district court.
One inquiry guides our First Amendment analysis here: whether the
employee spoke as a citizen on a matter of public concern or pursuant to his or
her official duties. 5 See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen
public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes . . . .”).
We’ve stated that a public employee’s speech is made pursuant to his or her
official duties when it is “‘made in the course of performing his employment.’”
Anderson v. Valdez, 845 F.3d 580, 595 (5th Cir. 2016) (quoting Williams v.
Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007)). We examine
whether Plaintiffs were subject to the employer’s control or whether the
Plaintiffs’ course of conduct was “intended . . . to serve any purpose of the
employer.” Id. at 596 (internal quotation and citation omitted). Evaluation of

5To demonstrate a prima facie case for First Amendment retaliation, a “plaintiff must
establish that: (1) he suffered an adverse employment decision; (2) his speech involved a
matter of public concern; (3) his interest in speaking outweighed the governmental
defendant’s interest in promoting efficiency; and (4) the protected speech motivated the
defendant’s conduct.” Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016). Our
discussion only pertains to the second prong as it is dispositive.
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this prong of the retaliation analysis is a question of law. See Graziosi v. City
of Greenville, 775 F.3d 731, 736 (5th Cir. 2015).
Plaintiffs were not speaking as citizens when they allegedly reported
“ghost ticketing” to NHTSA and the MDPS officials. In Corn’s capacity as
Office Director and the “Governor’s representative” and Jennings’ capacity as
Division Director, their amended complaint specifically alleges that “the two
collaborated in evaluating” state troopers’ “false claims and how to report the
false claims to” NHTSA. Said differently, “in the course of performing [their]
employment,” Plaintiffs reported to NHTSA in the context of falsified claims.
Anderson, 845 F.3d at 595. Both in their briefs and at oral argument, Plaintiffs
fail to point us to any allegation that provides an understanding of their job
responsibilities, beyond the aforementioned allegation. 6 As such, taking this
allegation as true, it appears that Plaintiffs’ job duties are closely related to
the function of reporting falsified claims, similar to the “ghost ticketing”
investigation. Cf. Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (noting
that speech may still not be protected if it is “closely related” to the plaintiff’s
job duties) (citing Williams, 480 F.3d at 693). There is no meaningful
distinction between Plaintiffs’ and NHTSA’s communicating about the “ghost
ticket” investigation versus their ordinary communications with regard to
falsified claims involving state troopers. Arguably, by virtue of their
employment only, Plaintiffs learned of the investigation into the state trooper
misconduct known as “ghost ticketing,” i.e. the speech may have resulted from

6 While Plaintiffs do point to various examples within the record (e.g. Plaintiffs’
affidavits in support of their opposition briefs), the facts therein are nowhere mentioned in
the operative pleading. We cannot go beyond the pleadings in a Rule 12(c) analysis and use
this sworn testimony as a determination of whether Plaintiffs’ reporting was outside of the
public employee’s ordinary job responsibilities. See, supra, n.1 (citing Hughes, 278 F.3d at
420).
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Plaintiffs’ special knowledge gained as MDPS employees. 7 Given the close
relation between the allegations of Plaintiffs’ job duties in evaluating false
claims of state troopers and “ghost ticket” reporting, we conclude that
Plaintiffs’ alleged speech fell within the scope of their duties and that they have
failed to plead otherwise.
Moreover, not only is Plaintiffs’ “ghost ticket” reporting related to their
job functions, the alleged speech is also a continuation of their up-the-chain
speech made to their employer, MDPS. According to the complaint, Corn
reported the “ghost ticketing” investigation to MDPS officials on two separate
occasions (October 3 and 4) and also sent an email to the Governor’s office.
These are internal reporting examples of making a complaint up the chain of
command because (1) Plaintiffs held MDPS director positions that were
subordinate to the MDPS Commissioner at the time, Cruz, and the MDPS
officials and (2) Corn held a representative position in which she answered to
the Governor. Cf. Davis, 518 F.3d at 315−16 (state university employee’s job-
related communications up the chain fell within her official duties); Umoren v.
Plano Indep. Sch. Dist., 457 F. App’x 422, 426 (5th Cir. 2012) (per curiam)
(same as to substitute teacher’s job-related complaints to officials up the chain
of command). The subsequent October 5 speech to NHTSA—the alleged
external source—similarly follows the “ghost ticket” investigation and
therefore is simply a continuation of unprotected speech. Anderson v. Valdez,
913 F.3d 472, 478, 478 n.24 (5th Cir. 2019) (stating that the plaintiff “cannot
escape the discipline of his employer for breach of his employee duties by going
public with the same speech” because the external public statements are a
“continuation” of the statements made earlier as an employee) (citing Nixon v.

7One can draw this conclusion because in Paragraph 10, Plaintiffs specifically allege
that they learned of the “ghost ticketing” investigation from a highway patrolman,
presumably during the course of their employment.
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City of Hous., 511 F.3d 494, 497 (5th Cir. 2007)). Because Plaintiffs’ alleged
speech first occurred up the MDPS and Governor hierarchy in Corn’s employee
capacity, the similar external speech that trails is also unprotected as it tracks
internal complaints. Id.; cf. Davis, 518 F.3d at 313 (“[W]hen a public employee
raises complaints or concerns up the chain of command at his workplace about
his job duties, that speech is undertaken in the course of performing his job.”).
We therefore conclude that Plaintiffs failed to demonstrate that their alleged
speech was protected under the First Amendment.
Given this holding, it necessarily follows that the district court correctly
dismissed Plaintiffs’ section 1983 claim for retaliation in violation of his First
Amendment rights, for their failure to allege sufficient facts that they spoke as
a citizen on a matter of public concern. Accordingly, we affirm the district
court’s Rule 12(c) dismissal of this claim as it pertains to Fisher in his official
capacity and Cruz in his individual capacity.
IV.
For the reasons set forth above, we AFFIRM the district court’s
dismissal of Plaintiffs’ claims against Defendants as this suit is barred under
the Eleventh Amendment and Plaintiffs have otherwise failed to state a claim.

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