Case: 20-50406 Document: 00515967326 Page: 1 Date Filed: 08/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 5, 2021
No. 20-50406
Lyle W. Cayce
Clerk
Billy L. Spears,
Plaintiff—Appellant,
versus
Steven McCraw; David Baker; Jack Webster; Michael
Bradberry; Audra Livingston; Stephen P. Mach; Manny
Flores; A. Cynthia Leon, also known as "Cindy"; Jason
K. Pulliam; Randy Watson; Faith Johnson; Luis
Gonzalez; Rhonda Fleming; Luis Sanchez; K. B. Wilkie;
Brandon Negri; Jimmy Jackson; Marcus Stokke; Michael
Sparks; Willie Drabble,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-1105
Before Higginbotham, Southwick, and Engelhardt, Circuit
Judges.
Case: 20-50406 Document: 00515967326 Page: 2 Date Filed: 08/05/2021
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Per Curiam:*
Texas Department of Public Safety (DPS) Highway Patrol trooper
Billy Spears appeals the dismissal of his 42 U.S.C. § 1983 claims against over
a dozen different state officials. We affirm.
I
In April 2015, Spears brought several claims under § 1983 and the
Texas Whistleblower Act against DPS, several DPS officials and one Texas
Alcoholic Beverage Commission (TABC) officer for events related to two
different disciplinary actions against him at work. 1 While that case was
ongoing, Spears encountered another problem at DPS. In May 2016, he
requested a medical waiver for the department’s semi-annual physical fitness
test (PFT) due to a knee injury. Shortly after making the request, he was
placed on medical leave and underwent knee surgery, returning to work in
December 2016. In September 2017, while the defendants’ motion for
summary judgment was pending in Spears I, Spears was served with a
performance improvement plan (PIP) for failing to complete the PFT while
on leave. Only after receiving the PIP did Spears realize his medical wavier
had been denied.
In response to the denial of his waiver and subsequent PIP, Spears
sued nineteen state officials, including the ten named in Spears I, alleging
various violations of his constitutional rights. First, he claimed that
Defendants violated his First Amendment rights by denying his waiver and
placing him on a PIP in retaliation for filing Spears I. Next, he alleged that
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
1
See Spears v. McCraw, No. 1:15-CV-511-RP, 2018 WL 1463711 (W.D. Tex. Mar.
23, 2018) (Spears I).
2
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Defendants placed him on the PIP without due process. Third, he claimed
that Defendants interfered with his right to access the courts by attempting
to “cover up” their alleged retaliatory conduct. Finally, he asserted that
Defendants conspired to violate his civil rights or failed to supervise those
that did. 2 Defendants moved to dismiss Spears’s claims under Rule 12(b)(6),
asserting qualified immunity. The district court granted Defendants’
motions, dismissing each of Spears’s claims. Spears appeals.
II
This Court reviews dismissals under Rule 12(b)(6) de novo, accepting
“all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” 3 To survive a Rule 12(b)(6) motion to dismiss, a complaint must
“state a claim to relief that is plausible on its face.” 4 A plausible complaint
“‘does not need detailed factual allegations,’ but must provide the plaintiff’s
grounds for entitlement to relief—including factual allegations that when
assumed to be true ‘raise a right to relief above the speculative level.’” 5 To
plausibly state a claim against an official entitled to assert the defense of
qualified immunity, a plaintiff must show: “(1) that the official violated a
2
To support his claims, Spears’s complaint sought to incorporate by reference his
complaint from Spears I as well as a complaint from a separate action brought by another
DPS employee. The district court declined to consider the substance of these pleadings,
concluding that Spears’s indiscriminate incorporation of two additional complaints in their
entirety violated Federal Rule of Civil Procedure 8(a)(2)’s mandate that he provide a
“short and plain statement” of his claims. We see no error in that ruling. See Clayton v.
ConocoPhillips Co., 722 F.3d 279, 299–300 (5th Cir. 2013); Muttathottil v. Gordon H.
Mansfield, 381 F. App’x 454, 456–57 (5th Cir. 2010) (unpublished) (per curiam).
3
Martin K. Eby Const. Co., Inc. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th
Cir. 2004) (internal quotation marks and citation omitted).
4
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
5
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S.
at 555).
3
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statutory or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” 6
A
Spears first challenges the district court’s dismissal of his First
Amendment retaliation claim. To state a First Amendment retaliation claim,
Spears must allege facts demonstrating that: (1) he suffered an adverse
employment action; (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. 7
Spears falters at the first step of this analysis. This Court has
recognized that “discharges, demotions, refusals to hire, refusals to promote,
and reprimands” amount to actionable retaliatory conduct for a First
Amendment claim. 8 Spears suggests that his placement on a PIP is actionable
as an “implicit reprimand,” but we have made clear that only formal
reprimands may constitute a First Amendment violation. 9
Nevertheless, the district court concluded that Spears’s PIP
amounted to an adverse employment action under the less stringent
“materially adverse” standard that governs Title VII retaliation claims. That
standard requires only that the adverse decision be enough to “dissuade[] a
6
Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir. 2020) (internal quotation marks
and citation omitted).
7
See Culbertson v. Lykos, 790 F.3d 608, 617 (5th Cir. 2015).
8
Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011) (internal quotation marks and
citation omitted).
9
See Colson v. Grohman, 174 F.3d 498, 511–12 & n.7 (5th Cir. 1999).
4
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reasonable worker” from engaging in protected conduct. 10 While it may be
true that Spears’s PIP satisfies the “materially adverse” standard, it is an
open question in this Court whether that standard applies to claims of
retaliation for protected speech. 11 Therefore, no clearly established law
informed Defendants that placing Spears on a PIP would violate his
constitutional rights.12 Consequently, Spears’s retaliation claim fails to
overcome Defendants’ qualified immunity, and we affirm the district court’s
dismissal. 13
B
Spears next challenges the dismissal of his procedural due process
claim. To plead a violation of his due process rights, Spears must first
establish that he was deprived of a protected interest before showing that the
deprivation occurred without the protections to which he was entitled. 14
“It is well-settled that certain public employment situations may
endow an employee with a legally cognizable property interest.” 15 As the
source of his protected property interest, Spears points to section 411.007(e)
of the Texas Government Code, which states that “[a]n officer or employee
of [DPS] may not be discharged without just cause.” Assuming this provision
10
See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks and citation omitted).
11
See Johnson v. Halstead, 916 F.3d 410, 422 n.5 (5th Cir. 2019) (“It is not clearly
established whether Burlington’s ‘materially adverse’ standard applies to retaliation for
protected speech.”).
12
See id.
13
Although the district court dismissed Spears’s retaliation claim on other
grounds, we may affirm on any ground supported by the record and argued in the district
court. See Raj v. Louisiana State University, 714 F.3d 322, 330 (5th Cir. 2013).
14
See McDonald v. City of Corinth, 102 F.3d 152, 155 (5th Cir. 1996).
15
Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003).
5
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of Texas law provides Spears with a protected property interest, at most, it
guards against his discharge without due process, meaning that Spears’s
protected interest lies in his continued employment at DPS. Because Spears
remains employed at DPS, he fails to demonstrate that he has been deprived
of any protected interest. The district court did not err in dismissing this
claim.
C
Similarly, the district court properly dismissed Spears’s denial-of-
access claim. 16 To show a violation of his right to access the courts, Spears
must “identify (1) a nonfrivolous underlying claim; (2) an official act that
frustrated the litigation of that claim; and (3) a remedy that is not otherwise
available in another suit that may yet be brought.” 17 Spears does not allege
any facts demonstrating that Defendants prevented him from litigating his
claims. His denial-of-access claim, therefore, fails. 18
D
Spears also challenges the dismissal of his failure-to-supervise claim.
A supervisory official may be held liable under § 1983 if a plaintiff establishes
that “(1) the supervisor either failed to supervise or train the subordinate
official; (2) a causal link exists between the failure to train or supervise and
16
Spears confusingly casts this claim as arising out of the Equal Protection Clause,
even though we have recognized that “a right of access to the courts . . . is founded in the
Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, and
the Fifth and Fourteenth Amendment Due Process Clauses.” See Waller v. Hanlon, 922
F.3d 590, 601 (5th Cir. 2019).
17
See id. at 602 (internal quotation marks and citation omitted).
18
See id.; see also Jones v. Kelly, 611 F. App’x 229, 231 (5th Cir. 2015) (unpublished)
(per curiam) (affirming the dismissal of plaintiff’s denial-of-access claim where plaintiff
failed to “allege or explain how any defendant actually prevented him from taking any
particular legal action”).
6
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the violation of the plaintiff’s rights; and (3) the failure to train or supervise
amounts to deliberate indifference.” 19 Beyond Spears’s assertion in his
complaint that certain defendants “failed to supervise the other [d]efendants
who kept retaliating against [him],” Spears offers no well-pled facts
indicating that any defendant failed to supervise or train subordinate officers
or that such a failure caused a constitutional violation. The district court
correctly dismissed this conclusory claim. 20
E
Finally, the district court did not err in dismissing Spears’s conspiracy
claim. Because Spears does not show a violation of his clearly established
constitutional rights, his claim alleging a conspiracy to violate his rights
necessarily fails. 21
We affirm.
19
See Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375,
381 (5th Cir. 2005) (internal quotation marks and citation omitted).
20
See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will
not suffice to prevent a motion to dismiss.” (internal quotation marks and citation
omitted)).
21
See Mowbray v. Cameron Cty., 274 F.3d 269, 279 (5th Cir. 2001).
7