Case: 20-20181 Document: 00515916774 Page: 1 Date Filed: 06/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2021
No. 20-20181 Lyle W. Cayce
Clerk
Vivian Wilhite,
Plaintiff—Appellant,
versus
Christina Harvey; Katina Rice; Deborah Kimmel; Kiara
Hewitt-Saffold,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-866
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
In connection with the revocation of her licenses to run a child-care
facility, Vivian Wilhite sued several state officials—Christina Harvey, Katina
Rice, Deborah Kimmel, and Kiara Hewitt-Saffold (collectively,
“Defendants”) in the operative complaint—alleging causes of action under
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-20181 Document: 00515916774 Page: 2 Date Filed: 06/28/2021
No. 20-20181
42 U.S.C. § 1983, among others, based upon her claim that their inspections
of her facility violated her constitutional rights.1 The district court dismissed
Wilhite’s claims for failure to state a claim. We AFFIRM.
Per the operative complaint, Wilhite owned and operated Royal T
Child Development Center (“Royal T”), a child-care facility in the Houston
area. Like all child-care facilities in the state of Texas, Royal T was subject
to a range of licensing requirements, including maintaining safe conditions
for the children in its care. See generally Tex. Hum. Res. Code Ann.
§§ 42.041–.067; 26 Tex. Admin. Code chs. 745, 746 (formerly codified
at 40 Tex. Admin. Code chs. 745, 746). Failure to comply with those
requirements could result in the revocation of Wilhite’s licenses to run the
facility. See generally Tex. Hum. Res. Code Ann. § 42.072(a).
On a number of occasions in 2015 and 2016, inspectors from the Child
Care Licensing Division of the Texas Department of Family and Protective
Services,2 allegedly working on authorization from Harvey and direction
from Rice, inspected Royal T. They documented a range of deficiencies.
1
Wilhite originally also sued the Texas Department of Family and Protective
Services, which asserted sovereign immunity, as well as various other officials. Those
defendants are not named, however, in her Second Amended Complaint, the relevant
pleading. She also requested dismissal of her claims against Kimmel in her response to the
motion to dismiss at issue here. Thus, the remaining defendants at issue are Harvey, Rice,
and Hewitt-Saffold. The operative complaint also eliminated the state law causes of action,
leaving only the Section 1983 claims based upon the alleged federal constitutional
violations.
2
At all times relevant to this case, the Child Care Licensing Division was part of
the Texas Department of Family and Protective Services. Cf. Act of May 31, 2017, 85th
Leg., R.S., ch. 316, § 24(c), sec. 531.02013, 2017 Tex. Sess. Law Serv. 601, 608 (West) (to
be codified at TEX. GOV’T CODE ANN. § 531.02013). Although the division has since
become part of the Texas Health and Human Services Commission, its functions relevant
to this case—including, specifically, inspecting child-care facilities and reviewing
licenses—have remained the same. Id.
2
Case: 20-20181 Document: 00515916774 Page: 3 Date Filed: 06/28/2021
No. 20-20181
Some deficiencies related to the quality of services provided, including,
among other violations, that staff at the facility did not know the ages of
children in their care. Others concerned potentially serious physical risks:
most significantly, allowing an individual with a criminal history to be at the
facility without a risk assessment and failing to get a required fire inspection.
On the basis of these alleged deficiencies, the Child Care Licensing Division
notified Wilhite that it would revoke her licenses. The State Office of
Administrative Hearings (“SOAH”) conducted a hearing on the matter,
ultimately upholding the Child Care Licensing Division’s decision to do so.
See Tex. Hum. Res. Code Ann. § 42.072(b).
Wilhite eventually filed suit in federal district court. Her operative
complaint under Section 1983 alleged that Defendants abused legal process
in connection with the inspections and maliciously used false evidence
against her, primarily in violation of her Fourteenth Amendment due process
rights.3 Defendants moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), which the district court granted on the grounds that Wilhite’s
largely conclusory allegations were insufficient to state any constitutional
claim. Wilhite timely appealed.
The district court had federal question jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We have appellate jurisdiction to review the district
court’s final judgment under 28 U.S.C. § 1291. We review the district
court’s dismissal de novo, applying the same standard as the district court.
Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127, 133
(5th Cir. 2009). To resist dismissal under that standard, the plaintiff must
3
Wilhite also claimed that Defendants’ conduct violated her Fourth Amendment
right against unreasonable searches and seizures. But Wilhite does not so much as cite the
Fourth Amendment on appeal, so we consider that aspect of her claims abandoned. Justiss
Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996).
3
Case: 20-20181 Document: 00515916774 Page: 4 Date Filed: 06/28/2021
No. 20-20181
allege “sufficient factual matter” to “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).
The allegations must be more than speculative; “mere conclusory
statements [ ] do not suffice.” Id. (quotation and citation omitted).
All of Wilhite’s arguments on appeal boil down to an assertion that
she adequately stated due process claims before the district court. Although
Wilhite’s operative complaint does not clearly articulate whether her due
process claims are procedural or substantive, we agree with the district court
that she failed to allege a claim under either analysis.
As to procedural due process, the question is notice and an
opportunity to be heard in connection with the revocation of her licenses. See
Marco Outdoor Advert., Inc. v. Reg’l Transit Auth., 489 F.3d 669, 673 (5th Cir.
2007) (acknowledging that an adequate remedy requires “notice and an
opportunity for a hearing to the property owner”). Where, as here, a plaintiff
has alleged that the initial deprivation of her interest deviated from
established state procedures, our inquiry focuses on the adequacy of post-
deprivation process afforded to the plaintiff. Hudson v. Palmer, 468 U.S. 517,
533 (1984); Collins v. King, 743 F.2d 248, 252 (5th Cir. 1984); see Logan v.
Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982). On that score, Wilhite
plainly received enough process to satisfy constitutional standards.
Wilhite’s claims fail because the face of her pleadings and Texas law
demonstrate the availability of administrative review. She was entitled to—
and in fact received—an administrative hearing from SOAH to evaluate the
propriety of the revocation of her licenses. See Tex. Hum. Res. Code
Ann. § 42.072(b). She also had the opportunity to seek judicial review of
that SOAH decision. See id. Beyond a lone conclusory assertion that the
review she experienced was unconstitutional, Wilhite’s operative complaint
4
Case: 20-20181 Document: 00515916774 Page: 5 Date Filed: 06/28/2021
No. 20-20181
does not allege that any of those opportunities were procedurally inadequate
in any way.4 Accordingly, her procedural due process claims fail.
As to substantive due process, Wilhite’s claims fail because she does
not plausibly allege any conduct that “shock[s] the contemporary
conscience.” Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d 221, 232 (5th
Cir. 2016) (internal quotation marks and citation omitted). The crux of
Wilhite’s argument on appeal is that her substantive due process rights were
violated because Rice, a licensing supervisor at the Child Care Licensing
Division, allegedly ran a competing child-care facility and was therefore
hoping to run Wilhite out of business.
Wilhite’s allegations about Rice are largely conclusory,5 and, as the
district court noted, Wilhite concedes the validity of a number of the
identified deficiencies. See Bush v. City of Gulfport, 454 F. App’x 270, 277–
78 (5th Cir. 2011) (per curiam) (concluding that allegations that a mayor
denied a building permit to further the mayor’s economic interests were
insufficient to support a substantive due process claim); Greenbriar Vill.,
L.L.C. v. Mountain Brook, 345 F.3d 1258, 1264 (11th Cir. 2003) (per curiam)
4
In her appellate briefing, Wilhite suggests that the SOAH proceedings were
deficient because, she asserts, the Administrative Law Judge who held the hearing was not
the same Administrative Law Judge who produced written findings of fact and conclusions
of law. But Wilhite provides no such allegations in her operative complaint, so we do not
address them. See Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004). Indeed, to
the contrary, her operative complaint alleged that a single individual, “Dana Perez,” heard
the administrative review and ruled against her.
5
To the extent Wilhite seeks to buttress the operative complaint with statements
from her response to Defendants’ motion to dismiss before the district court, her attempt
to do so fails. New factual allegations in briefs are not appropriately considered on a motion
to dismiss—our focus is on the allegations and materials referred to in the complaint itself.
See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019)
(noting that a court must limit its inquiry to the complaint, documents attached to the
complaint, and judicially noticeable facts), cert. denied, 140 S. Ct. 2506 (2020) (mem.).
5
Case: 20-20181 Document: 00515916774 Page: 6 Date Filed: 06/28/2021
No. 20-20181
(noting that allegations of “target[ing] . . . out of animosity” are insufficient
to state a substantive due process claim when the state actor’s conduct was
also self-evidently justified by a legitimate interest).6
Even assuming arguendo that the allegations about Rice’s business
were more fulsome and, therefore, demonstrate a bias against Wilhite, there
is no indication that Rice was ever involved in actually identifying
deficiencies at Royal T. Other Defendants conducted the inspections, and
Wilhite’s operative complaint does not plausibly allege that Rice’s alleged
business interest caused those Defendants to act improperly in the process.
In fact, the operative complaint says nothing at all about any of those
Defendants being biased in any way—through Rice or otherwise. More
critically, her complaint does not plead that the most significant defect in
Wilhite’s business (the presence of a person with a criminal background and
no appropriate background check) was untrue. Thus, there are no actual
facts pleaded that would support a reasonable jury finding that the
documented deficiencies were the result of an improperly motivated
investigation, let alone one that shocks the conscience.
AFFIRMED.
6
Perhaps recognizing that Rice’s alleged business interest is insufficient to shock
the conscience, Wilhite repeatedly tries to recast Rice as a “biased judge” whose alleged
partiality, or appearance thereof, affected the proceedings against Wilhite and Royal T. It
is plain, however, that Rice works as a licensing supervisor—not as a judge. Wilhite does
not cite a single case holding that the appearance of partiality (or, indeed, actual lack of
impartiality) on the part of such an officer can form the basis of a viable due process claim
absent some other form of conscience-shocking conduct. Nor are we aware of any such
authority; after all, we generally review an executive officer’s enforcement decisions with
reference to “objective factors, rather than subjective intent.” Kentucky v. King, 563 U.S.
452, 464 (2011); cf. Bush, 454 F. App’x at 277–78 (rejecting a substantive due process claim
in part because the decisionmaker was justified by objectively legitimate state interests);
Greenbriar Vill., 345 F.3d at 1264 (same).
6