     Case: 16-40003      Document: 00513658558         Page: 1    Date Filed: 08/30/2016




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

                                      No. 16-40003                               FILED
                                                                           August 30, 2016
                                                                            Lyle W. Cayce
ARTHUR ROGERS,                                                                   Clerk

                                                 Plaintiff - Appellant
v.

CITY OF YOAKUM; KEVIN COLEMAN, Individually and in his capacity as
City Manager of the City of Yoakum, Texas; ANITA R. RODRIGUEZ,
Individually and in her capacity as Mayor of the City of Yoakum, Texas;
ELORINE SITKA, Individually and in her capacity as Mayor Pro-Tem of the
City of Yoakum, Texas; RODNEY JAHN, Individually and in his capacity as
Councilmember on the City of Yoakum's City Counsel; TIM MCCOY,
Individually and in his capacity as Councilmember on the City of Yoakum's
City Counsel; TIM FAULKNER, Individually and in his capacity as
Councilmember on the City of Yoakum's City Counsel; TERESA BOWE,
Individually and in her capacity as City Secretary and Personnel Officer of
the City of Yoakum, Texas,

                                                 Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:15-CV-44


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
PER CURIAM:*


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 16-40003
      Plaintiff Arthur Rogers sued the City of Yoakum and various city
officials alleging causes of action under 42 U.S.C. § 1983, the Federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, the Texas Declaratory
Judgments Act, TEX. CIV. PRAC. & REM. CODE § 37.001–.011, and Texas state
law. Rogers appeals the district court’s dismissal of his claims under Federal
Rule of Civil Procedure 12(b)(6). We AFFIRM.
                                 I. Background
      Rogers served as the Chief of Police and a peace officer for the City of
Yoakum (the “City”) from December 2007 until he was terminated on July 9,
2014. In or around October of 2011, Adult Protective Services contacted Rogers
to report suspected mistreatment of an elderly citizen by Charles Kvinta, the
City Attorney, who also had a private law practice. Rogers undertook an
investigation of these allegations. Ultimately, because the allegations involved
a City official, he reported them to the Texas Rangers for their assistance in
the investigation.
      Kevin Coleman was hired by the City to serve as City Manager in
December of 2011.      Rogers alleges Coleman was perturbed by Rogers’s
investigation of Kvinta.
      In June of 2014, a Lavaca County Attorney requested that Coleman view
a video of an incident where a City police officer deployed a taser to subdue a
suspect in a questionable manner. Coleman brought this video to Rogers’s
attention and requested that Rogers investigate the video and report his
findings to Coleman. Coleman was not satisfied with Rogers’s handling of the
incident. Citing Rogers’s handling of this incident as well as other deficiencies,
Coleman terminated Rogers; Rogers alleges this was done with the approval of
other city officials. Rogers alleges that this termination occurred without
Coleman providing Rogers any written notice of the Lavaca County Attorney’s
report and without an investigation into the incident.
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       Rogers subsequently filed suit against the City, Coleman, and a number
of other city officials. On the same day that he filed his original complaint, he
realized an error and sought leave to file a corrected complaint, which the
district court granted. Defendants moved to dismiss and Rogers responded,
requesting leave to amend if the district court found that defendants’
arguments had merit. Rogers subsequently moved for leave to file a first
amended original and correct complaint, alleging Section 1983 claims based on
violations of his First and Fourteenth Amendment rights; claims for relief
based on the same constitutional violations under the Federal Declaratory
Judgment Act; and claims under the Texas Declaratory Judgments Act for
violations of the Texas Whistleblower Act, TEX. GOV’T CODE § 554.002–003,
violations of Section 614.023 of the Texas Government Code, and defamation.
       In October of 2015, the district court held an initial conference, at which
the district court heard arguments regarding the pleadings. The district court
clarified that defendants did not need to file a subsequent Rule 12(b)(6) motion
responding to Rogers’s first amended original and correct complaint, because
the existing motion adequately addressed Rogers’s amended claims.                       On
December 1, 2015, the district court granted Rogers’s motion for leave to file
his amended complaint. The next day, the district court entered an opinion
and an order on dismissal, dismissing all of Rogers’s claims with prejudice.
Rogers timely appealed. 1
                                II. Standard of Review
       “[We] review[ ] de novo a district court’s grant or denial of a Rule 12(b)(6)
motion to dismiss, ‘accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiff.’” True v. Robles, 571 F.3d 412,


       1 Rogers does not appeal the dismissal of his claims for violations of his Fourteenth
Amendment right to due process, his Texas Whistleblower Act claims, or his defamation
claims, except his defamation claim against Coleman.
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417 (5th Cir. 2009) (citation omitted). “To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is
plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555 (alteration in original) (citations omitted). “We may affirm a
district court’s Rule 12(b)(6) dismissal on any grounds supported by the
record . . . .” Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006).
      We review a district court’s denial of leave to amend for an abuse of
discretion. Simmons v. Sabine River Auth. La., 732 F.3d 469, 478 (5th Cir.
2013).
                                 III. Discussion
A. Section 1983/First Amendment Claim
      Rogers appeals the district court’s dismissal of his Section 1983 claim
that defendants violated his First Amendment rights by terminating him in
retaliation for reporting Kvinta’s alleged misconduct to the Texas Rangers. In
this context, Rogers must plead that his report was constitutionally protected
speech by alleging, among other things, that he spoke as a citizen on a matter
of public concern. See Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014)
(citing Lane v. Franks, 134 S. Ct. 2369, 2378 (2014)).
      The parties dispute only whether Rogers’s speech was made as a citizen
or pursuant to his official duties as Chief of Police. “[W]hen public employees
make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.”             Garcetti v.
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Ceballos, 547 U.S. 410, 421 (2006). The Supreme Court has instructed that
this “inquiry is a practical one” that focuses on whether the speech was made
“within the scope of the employee’s professional duties.” Id. at 424–25. We
have defined “pursuant to official duties” as “activities undertaken in the
course of performing one’s job,” and look to factors such as job descriptions,
whether the employee communicated with coworkers or with supervisors,
whether the speech resulted from special knowledge gained as an employee,
and whether the speech was directed internally or externally.                      Davis v.
McKinney, 518 F.3d 304, 313 (5th Cir. 2008).
       Rogers alleges in his first amended complaint that, “[h]is official duties
entailed the investigation of perceived wrong doing and reporting such findings
to the prosecuting authorities,” and further states that “[c]ontacting the Texas
Rangers was protected speech, outside the scope of his ordinary duties.” This
conclusory and contradictory recitation of the elements is insufficient, standing
alone, to support a conclusion that Rogers’s speech was made as a private
citizen. Rogers does not allege any facts that illustrate why reporting Kvinta’s
alleged misconduct to the Texas Rangers for their help in investigating the
allegations fell outside the scope of his official duties to “investigat[e] . . .
perceived wrong doing and report[ ] such findings to the prosecuting
authorities.” Indeed, we have previously held that the title “Chief of Police”
indicates that communication with outside law enforcement agencies is part of
an employee’s job responsibilities. See Gibson, 773 F.3d at 671. Further,
Rogers’s complaint alleges that he was terminated “in retaliation for carrying
out his law enforcement duties as Police Chief.” 2 Viewing these facts in the




       2Other allegations include: “Chief Rogers was terminated . . . in retaliation for the
legitimate pursuit of his duties as the chief law enforcement officer of the City of
Yoakum . . .”; “Chief Rogers was disciplined, retaliated against for exercising and performing
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light most favorable to Rogers, we conclude that Rogers has not sufficiently
alleged that reporting Kvinta’s alleged misconduct was outside the scope of his
official duties, and in fact, the allegations in his complaint support finding the
very opposite. Accordingly, we affirm the district court’s dismissal of Rogers’s
Section 1983 claim for retaliation in violation of his First Amendment rights. 3
B. Texas Declaratory Judgments Act Claim
       Rogers next contends that the district court erred in dismissing his
claims under the Texas Declaratory Judgments Act (“TDJA”), see TEX. CIV.
PRAC. & REM. CODE § 37.001–.011, alleging state law defamation and violation
of Section 614.023 of the Texas Government Code. The TDJA does not apply
in federal district court. See Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208, 210
(5th Cir. 1998).       Assuming arguendo that Rogers intended to plead the
substantive causes of action underlying his TDJA claim, we conclude that
Rogers has failed to state a claim on either of these theories.
       1. Defamation
       Rogers appeals the district court’s dismissal of his state law defamation
claim against Coleman. Defendants argue that Rogers’s defamation claim
against Coleman is barred by Section 101.106 of the Texas Civil Practice and
Remedies Code, which requires an election of remedies when a plaintiff sues
both a governmental entity and its employees.
       Rogers alleges in his complaint that Coleman “publically accused Chief
Rogers of negligence and essentially dereliction in the performance of his


his official law enforcement duties . . .”; and “Chief Rogers was disciplined, retaliated against
for exercising and performing his official law enforcement duties . . . .”
       3His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201–
2202, are simply a repackaging of these same claims. The Declaratory Judgment Act is a
procedural device and does not create an independent private right of action. Harris Cty. v.
MERSCORP Inc., 791 F.3d 545, 553 (5th Cir. 2015); Lowe v. Ingalls Shipbuilding, A Div. of
Litton Sys., Inc., 723 F.2d 1178, 1179 (5th Cir. 1984). Thus, this claim fails for the same
reason as the 1983 claim.
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duties,” that “defendants . . . put a rubber stamp on the actions of Kevin
Coleman,” and that such actions “constitute defamation, including libel and
slander.”    Defendants moved for dismissal of Rogers’s claims against the
individual defendants under Section 101.106. Because Rogers sued both the
City and Coleman for defamation, he has made his election, and his suit
against Coleman for defamation cannot proceed. See TEX. CIV. PRAC. & REM.
CODE § 101.106(e). Accordingly, we affirm the district court’s dismissal of
Rogers’s defamation claims against Coleman. 4
       2. Section 614.023 of the Texas Government Code
       Rogers also appeals the district court’s dismissal of his claim under
Section 614.023 of the Texas Government Code. 5 Section 614.023 provides that
where a “complaint” is filed against a law enforcement officer, a signed copy of
the complaint must be given to the officer before any disciplinary action can be
taken.     TEX. GOV’T CODE § 614.023.            Additionally, the officer may not be
terminated on the basis of the complaint unless it is investigated and there is
evidence to prove the allegation of misconduct. Id.
       Importantly, Section 614.023’s protections apply only when disciplinary
action is based on the subject of a “complaint.” As we have recognized, “[o]ne
implication [of this requirement] is that in all other situations, an officer may
be discharged for a good reason, a bad reason, or no reason without the process
provided.” Stem v. Gomez, 813 F.3d 205, 212 (5th Cir. 2016). Rogers alleges
that he was terminated as the result of a report made by a Lavaca County


       4 Rogers contends that because Coleman was not acting in his official capacity when
he made his allegedly defamatory remarks he is not entitled to official immunity. Rogers
conflates official immunity with the statutory immunity provided by Section 101.106 of the
Texas Civil Practice and Remedies Code. See Tex. Adjutant Gen.’s Office v. Ngakoue, 408
S.W.3d 350, 356–57, 357 n.6 (Tex. 2013); see also Poland v. Willerson, No. 01-07-00198-CV,
2008 WL 660334, at *9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
       5 We assume without deciding that Rogers can bring a stand-alone claim for a violation
of Section 614.023.
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Attorney to Coleman that an officer under Rogers’s command had engaged in
misconduct. We need not, and do not, decide whether such a report constitutes
a “complaint” for purposes of Section 614.023.              Instead, we conclude that
Rogers has failed to allege facts that, if true, show that he was terminated as
a result of the Lavaca County Attorney’s report.
           In his complaint, Rogers seems to allege, relying on the exhibits
attached to his complaint, that Coleman terminated Rogers because Coleman
received a request from a Lavaca County Attorney to view a video of a City
police officer using his taser on a suspect in a potentially problematic manner.
In fact, the exhibits referenced by Rogers as support for his claim contradict
these allegations and show that Coleman terminated Rogers based on Rogers’s
response to the taser incident and his failure to appropriately discipline the
officer in question. 6 The Lavaca County Attorney merely brought to Coleman’s
attention the video of the taser incident. Nearly a month later, Coleman
terminated Rogers as a result of Rogers’s responses (or failures to respond) to
Coleman’s requests that he look into the incident. As indicated in the exhibits,
this decision was reached based on Coleman’s own observations of Rogers’s
behavior and his responses to issues within the department. Cf. Treadway v.
Holder, 309 S.W.3d 780, 784 (Tex. App.—Austin 2010, pet. denied)
(termination due to complaint requires following procedures in Section
614.023). Because the exhibits attached to Rogers’s complaint contradict his




       6In determining whether a plaintiff has stated a claim under Rule 12(b)(6), we may
consider “the complaint, any documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010). When “an allegation is contradicted by the contents of an exhibit attached to the
pleading, then indeed the exhibit and not the allegation controls.” U.S. ex rel. Riley v. St.
Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004) (citing Simmons v. Peavy-Welsh
Lumber Co., 113 F.2d 812, 813 (5th Cir.), cert. denied, 311 U.S. 685 (1940)).
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allegations, we assume the facts in the exhibits to be true. See U.S. ex rel. Riley
v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004).
       The Lavaca County Attorney reported another officer’s possible
misconduct to Coleman, and Rogers does not allege that he was terminated as
a result of that officer’s conduct. Rather, as the exhibits he attached to his
complaint demonstrate, he was terminated as a result of his subsequent
failures to respond to that incident and discipline that officer. Here, where
Rogers’s alleged misconduct was not the subject of the report in question, and
Coleman himself observed Rogers’s alleged negligence and made the decision
to terminate Rogers, the procedures outlined in Section 614.023 do not apply.
See Paske v. Fitzgerald, ___ S.W.3d ___, 2016 WL 3459217, at *7 (Tex. App.—
Houston [1st Dist.] June 23, 2016, no pet. h.). Accordingly, we affirm the
district court’s dismissal of Rogers’s claims under Section 614.023 of the Texas
Government Code.
C. Leave to Amend
       Finally, Rogers contends the district court erred in refusing to grant him
leave to amend his complaint rather than dismissing his case. 7 District courts


       7 Rogers also appeals the district court’s dismissal of his complaint on the ground that
the district court improperly dismissed Rogers’s claims without giving Rogers notice or
opportunity to respond. Rogers contends that the district court dismissed his claims sua
sponte and accordingly, the dismissal should be reversed for failure to follow the procedural
safeguards of notice and opportunity to respond. Alternatively, Rogers contends that, in
considering extrinsic evidence, the district court improperly converted the defendants’ Rule
12(b)(6) motion to dismiss into a motion for summary judgment under Rule 56. These
arguments are unavailing.
       First, although a district court must provide “notice of the court’s intention and an
opportunity to respond” before dismissing a case under Rule 12(b)(6) on its own motion,
Lozano v. Ocwen Fed. Bank, 489 F.3d 636, 643 (5th Cir. 2007), here, the transcript of the
conference held in chambers on October 5, 2015, indicates that, in dismissing Rogers’s suit,
the district court was ruling on defendants’ motion to dismiss, and that the district court gave
Rogers notice of its intention to do so. Rogers had sought leave to file an amended complaint,
and the district court stated that, “even with [the plaintiff’s first amended original and correct
complaint] the [defendants’] motion to dismiss stands,” clarifying that the defendants did not
need to submit a new motion to dismiss. In response to defense counsel’s question regarding
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                                       No. 16-40003
have wide latitude to consider requests for leave to amend.                      In deciding
whether to permit an amendment, a district court may consider factors such
as “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and]
futility of amendment.”         Foman v. Davis, 371 U.S. 178, 182 (1962).                   We
conclude that the district court gave Rogers sufficient prior opportunity to
plead his best case and amend his complaint, and the district court did not
abuse its discretion in dismissing Rogers’s case without permitting Rogers to
file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal.,
363 F.3d 398, 403–04 (5th Cir. 2004) (holding that the district court did not
abuse its discretion in denying leave to file a third amended complaint where
the plaintiff had already been given opportunities to amend and did not
indicate what additional facts he could plead to correct the deficiencies in his
complaint).
       AFFIRMED.




whether the court intended to rule on the motion to dismiss, the district court confirmed that
it would likely wait a few weeks, but that the motion to dismiss was still live. Thus we
conclude that Rogers had sufficient notice of the procedure the district court planned to
employ in ruling on the motion to dismiss Rogers’s complaint. Cf. Guajardo v. JP Morgan
Chase Bank, N.A., 605 F. App’x 240, 242–43 (5th Cir. 2015) (district court dismissed plaintiff’s
second amended complaint without requiring defendant to file a new motion to dismiss,
because the second amended complaint did not correct the issues identified in the motion to
dismiss the first amended complaint).
        With respect to Rogers’s contention that the district court improperly converted the
motion to dismiss into a motion for summary judgment, Rogers has not pointed the court to
any indication in the district court’s opinion or order on dismissal that the district court
considered extrinsic evidence. See Feinberg v. Leach, 243 F.2d 64, 69 (5th Cir. 1957)
(declining to denominate dismissal as being a summary judgment where the record did not
indicate that the district court considered extrinsic evidence).
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