   Case: 14-31043   Document: 00513071078   Page: 1   Date Filed: 06/08/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                             No. 14-31043                  United States Court of Appeals
                          Cons/w No. 14-31213                       Fifth Circuit

                                                                  FILED
                                                               June 8, 2015
                                                              Lyle W. Cayce
                                                                   Clerk
KANE MARCEAUX; GREG CORMIER; SCOTT POIENCOT;
GABRIEL THOMPSON; NORBERT MYERS; NOVEY STELLY;
ULETOM P. HEWITT; REGINA BRISCOE; ALEETA M. HARDING;
GUS SANCHEZ; ROBERT POLANCO; KENCIL D. JOSEPH;
DONALD CEASER; PAUL TAYLOR, JR.; RACHEL ROBERTS,
                                      Plaintiffs–Appellants
versus
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT;
CITY POLICE OF LAFAYETTE;
LESTER JOSEPH DUREL, JR., in His Capacity as
 President of the Lafayette City-Parish Consolidated Government;
DEE EDWARD STANLEY; JAMES P. CRAFT; GEORGE JACKIE ALFRED;
TED VINCENT, Individually and in His Capacity as
 Captain in the Lafayette Police Department;
RANDY VINCENT, Individually and in His Official Capacity as
 a Major in the Lafayette Police Department;
LEVY J. FIRMIN, Individually and in His Capacity as
 a Lieutenant in the Lafayette Police Department;
RAY DOMINGUE, Individually and in His Capacity as Human Resources
 Manager of the Lafayette City-Parish Consolidated Government;
DWAYNE PREJEAN, Individually and in His Capacity as
 a Lieutenant in the Lafayette Police Department;
U.J. PREVOST, Individually and in His Capacity as
 a Detective in the Lafayette Police Department;
KEITH GREMILLION, Individually and in His Capacity as
 a Sergeant in the Lafayette Police Department,
                                      Defendants–Appellees
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                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:12-CV-1532




Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*

       Plaintiffs are fifteen current and former officers of the Lafayette Police
Department suing the local government, the department, and other officers
and city officials for numerous alleged violations of their constitutional rights
and of state law. Adopting the report and recommendations of the magistrate
judge (“MJ”), the district court dismissed most claims under Federal Rule of
Civil Procedure 12(b)(6) and the remaining First Amendment claims on sum-
mary judgment. In addition to those rulings, the plaintiffs appeal the imposi-
tion of sanctions under Federal Rule of Civil Procedure 11 and the grant of
costs and attorney’s fees to the defendants. The defendants seek costs on
appeal under Federal Rule of Appellate Procedure 38. We affirm in all respects
and deny the Rule 38 motion.

                                             I.
       The facts are disputed, but in general, the plaintiffs maintain that Police
Chief Jim Craft and Lafayette City-Parish Consolidated Government Chief
Administrative Officer Dee Stanley led a sort of cabal within the police depart-
ment that engaged in “gross misconduct and rampant abuse of authority.” The
plaintiffs contend that this “Stanley-Craft Organization” sought reprisals


       * 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. 14-31043 cons/w No. 14-31213
against the plaintiffs, after they revealed the misconduct, by subjecting them
to internal investigations, transfers, demotions, and terminations from their
jobs as police officers.

       The original complaint proved problematic. The defendants moved to
strike various parts and dismiss the suit, but the MJ instead granted the plain-
tiffs leave to amend, advising them that many impertinent and scandalous
parts should be removed. Instead of omitting the controversial parts, the plain-
tiffs added to it, and with their amended complaint they stated that they
“amend, revise, restate, and generally supplement” their original complaint.
Plaintiffs’ counsel confirmed that the amended complaint supplemented the
original when he later explained at a hearing that the amended complaint con-
trolled “to the extent that it may be inconsistent with allegations contained in
the original complaint that was filed.”

       Defendants then re-urged their motions to strike and dismiss, and the
MJ ultimately struck 102 paragraphs from the original and amended com-
plaints as immaterial, impertinent, and scandalous. The MJ issued a report,
adopted by the district court, recommending that substantially all the claims
be dismissed. The court dismissed all state-law claims, all claims under the
Fourth, Fifth, and Fourteenth Amendments, and all claims under 42 U.S.C.
§ 1985, and dismissed many plaintiffs and most defendants from the suit. 1
What remained were six plaintiffs’ 2 claims against the city and against Stan-
ley, Craft, and Alfred, in their individual capacities, for allegedly violating


       1 The court dismissed all claims against Durel, Ted Vincent, Randy Vincent, Firmin,
Domingue, Prejean, Prevost, and Gremillion and all claims against Stanley, Craft, and
Alfred, in their official capacities. All claims against the Lafayette City Police Department
were dismissed, and because they had no remaining claims, the court dismissed plaintiffs
Myers, Harding, Sanchez, Polanco, Briscoe, and Roberts.
       The remaining plaintiffs whose claims were not dismissed under Rule 12(b)(6) were
       2

Marceaux, Poiencot, Thompson, Cormier, Stelly, and Hewitt.
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                       No. 14-31043 cons/w No. 14-31213
their First Amendment rights through adverse employment actions.

      At the same time, the defendants moved for attorney’s fees under
28 U.S.C. § 1927 and sanctions under Rule 11 because of plaintiffs’ failure to
amend properly.      The MJ concluded that plaintiffs’ counsel had violated
Rule 11(b), and he recommended—and the district court agreed—that they be
ordered to pay $2,500 to the court and reimburse $5,000 to the defendants.
The motion for attorney’s fees under § 1927 was denied.

      Later, the remaining First Amendment claims were dismissed on sum-
mary judgment, and the defendants moved again for costs and attorney’s fees
under Federal Rule of Civil Procedure 54 and 42 U.S.C. § 1988. The plaintiffs
filed no opposition to those motions, so the district court granted them and
assessed costs of $17,041.19 and attorney’s fees of $91,035. The plaintiffs
appealed the dismissal of all the claims and the Rule 11 sanctions and the order
taxing costs and awarding fees.

                                        II.
      In a seventy-three-page report on the Rule 12(b)(6) motion, the MJ metic-
ulously analyzed every claim in the original and amended complaints. He iden-
tified the numerous insufficiencies with many of the plaintiffs’ claims, includ-
ing asserting legal claims that cannot be applied to state actors, redundantly
suing the municipality and individuals in their official capacities, and failing
to allege essential elements. We find it unnecessary to repeat that discussion
in detail; reviewing the issue de novo, we affirm the dismissal of those claims
under Rule 12(b)(6) for essentially the same reasons provided in the MJ’s thor-
ough report adopted by the district court. See Woodard v. Andrus, 419 F.3d
348, 352–54 (5th Cir. 2005). The district court did not abuse its discretion in
not granting a second opportunity to amend the complaint. See Ashe v. Corley,
992 F.2d 540, 542–43 (5th Cir. 1993).
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                                            III.
       We review for abuse of discretion the imposition of sanctions for violation
of Rule 11. Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th
Cir. 2014). The rule provides in part:
    (b) Representations to the Court. By presenting to the court a pleading,
    written motion, or other paper—whether by signing, filing, submitting,
    or later advocating it—an attorney or unrepresented party certifies that
    to the best of the person’s knowledge, information, and belief, formed
    after an inquiry reasonable under the circumstances:
       (1) it is not being presented for any improper purpose, such as to
       harass, cause unnecessary delay, or needlessly increase the cost of
       litigation;
       (2) the claims, defenses, and other legal contentions are warranted
       by existing law or by a nonfrivolous argument for extending, modi-
       fying, or reversing existing law or for establishing new law;
       (3) the factual contentions have evidentiary support or, if specifi-
       cally so identified, will likely have evidentiary support after a rea-
       sonable opportunity for further investigation or discovery; and
       (4) the denials of factual contentions are warranted on the evidence
       or, if specifically so identified, are reasonably based on belief or a
       lack of information.
FED. R. CIV. P. 11(b).
       A violation of any subpart of the Rule 11(b) is sanctionable, and courts
use an objective standard, looking to the state of affairs at the time the filing
was signed. 3 “[W]hether a reasonable inquiry into the facts has been made in
a case will, of course, be dependent upon the particular facts.” Thomas v.
Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir. 1988) (en banc). But the
district court can look to certain factors in assessing whether a party has vio-
lated Rule 11, including how much time the party or attorney had to investi-
gate the claims, the extent to which the attorney relied on the client for


       Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802–05 (5th Cir. 2003) (en banc);
       3

Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 569 (5th Cir. 2006).
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information, the feasibility of investigation, and the complexity of the case,
among others. Id. Relying on the factors in Thomas, the MJ concluded that
plaintiffs’ counsel had violated subsections (b)(1) and (b)(2).

      First, the MJ reasoned that plaintiffs’ counsel had resubmitted their
original complaint with the amended complaint, in addition to other filings, for
the improper purpose of causing unnecessary delay or needlessly increasing
the cost of litigation. See FED. R. CIV. P. 11(b)(1). In particular, by reasserting
the same impertinent, immaterial, and scandalous allegations—against which
they had been warned—the plaintiffs forced further filings from the defendants
and increased the cost and effort required by the court to comb through the
complaint. Furthermore, the MJ concluded that refiling the complaints, as
well as issuing multiple subpoenas that were quashed, suggested an improper
purpose to harass some defendants.

      Second, the plaintiffs violated Rule 11(b)(2) by filing complaints replete
with obviously deficient claims. For instance, they asserted Fifth Amendment
due-process claims, but no defendant is a federal actor. See Jones v. City of
Jackson, 203 F.3d 875, 880 (5th Cir. 2000). They asserted claims under the
Fourth Amendment, state law, and 42 U.S.C. § 1985 that were not supported
by the allegations. Given the circumstances, many of the claims raised were
not warranted by existing law or a plausible extension of the law made after a
reasonable inquiry.

      We agree with the MJ’s conclusion that, under Thomas, plaintiffs’ coun-
sel had ample time to investigate the relatively straightforward events under-
lying this case, which at its core involves alleged adverse-employment actions.
The plaintiffs also unnecessarily increased the length of proceedings and
asserted unwarranted claims. Either violation of Rule 11 would be a sufficient


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basis for sanctions, 4 and the district court did not abuse its discretion in adopt-
ing the recommendation to do so in the face of such “obviously defective” com-
plaints. Skidmore Energy, 455 F.3d at 570.

                                               IV.
       We review de novo the summary judgment on the remaining plaintiffs’
§ 1983 claims based on First Amendment retaliation. 5 The speech at issue,
though particular to each plaintiff, involves various concerns or complaints
that they lodged with their superiors, as well as their brief attempt to seek a
temporary restraining order against the department to stop an internal inves-
tigation in an unrelated matter. The plaintiffs maintain that those activities—
filing complaints and seeking the restraining order—are protected by the First
Amendment and were the basis for adverse-employment actions. After a hear-
ing, the district court issued four separate summary judgments dismissing the
six plaintiffs’ claims on the first prong of qualified immunity, 6 concluding that
no plaintiff had made out an actual violation of his or her constitutional rights.

       To make a claim under § 1983 for First Amendment retaliation, a plain-
tiff must establish: “(1) the plaintiff suffered an adverse employment decision,
(2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s
interest in speaking outweighed the governmental defendant’s interest in pro-
moting efficiency, and (4) the protected speech motivated the defendant’s con-
duct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc).



       4   The plaintiffs do not dispute the amount of the sanctions, but only their imposition.
       5   Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 638 (5th Cir. 2012).
       6 The defendants raised this defense on summary judgment. As public officials, they
may assert qualified immunity unless the plaintiffs can demonstrate (1) that the defendants
violated their constitutional rights and (2) that the defendants’ conduct was not objectively
reasonable in light of clearly established law at the time of the violation. Pearson v. Callahan,
555 U.S. 223, 243–44 (2009); DePree v. Saunders, 588 F.3d 282, 287 (5th Cir. 2009).
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      Viewing the summary-judgment evidence in the light most favorable to
the plaintiffs, it is apparent that they have not met the second element because
their speech did not involve matters of public concern, which is a legal question
that must be determined by the content, form, and context of the speech. Salge
v. Edna Indep. Sch. Dist., 411 F.3d 178, 186 (5th Cir. 2005). But there is a
distinction between a plaintiff’s speaking as an employee and speaking as a
citizen. “When a public employee speaks in his capacity as an employee and
addresses personal matters such as personnel and employment disputes,
rather than in his capacity as a citizen on a matter of public interest, his speech
falls outside the protection of the First Amendment.” Id.

      All of the speech related to employment matters that were personal to
the plaintiffs. For example, Marceaux relies on meetings he had with Police
Chief Craft, an administrative complaint he filed, and an employment-
discrimination complaint. But those sorts of grievances communicated up the
chain of command are not protected speech. Davis v. McKinney, 518 F.3d 304,
313–15 (5th Cir. 2008). The other plaintiffs similarly cannot point to speech
on a matter of public concern; they allege only internal expressions of concern
or complaint about the operation of the police department. Further, the suit
for a temporary restraining order also concerned only employment matters; the
parties involved were seeking to block an internal investigation within the
department. See Oscar Renda Contracting, Inc. v. City of Lubbock, Tex., 463
F.3d 378, 383 (5th Cir. 2006). Consequently, we need not address whether any
of these plaintiffs suffered adverse employment actions because none engaged
in speech on a matter of public concern, and we can affirm the summary judg-
ment on that basis.

                                        V.
      The plaintiffs appeal the order taxing costs and assessing attorney’s fees,

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but they failed to oppose the motion in the district court, and a party may not
oppose a request for costs and fees for the first time on appeal. 7 Thus the order
is affirmed.

                                            VI.
       Rule 38 authorizes us to award just damages and single or double costs
if we determine that an appeal is frivolous, meaning that the “the result is
obvious or the arguments of error are wholly without merit.”                   Howard v.
St. Germain, 599 F.3d 455, 458 (5th Cir. 2010) (internal quotation marks omit-
ted). “[I]t is not bad faith that establishes frivolity of appeal, but that an unrea-
sonable legal position is advanced without a good faith belief that it is justi-
fied.” Coghlan v. Starkey, 852 F.2d 806, 814 (5th Cir. 1988) (per curiam) (inter-
nal quotation marks omitted).

       Though plaintiffs’ chances of success on appeal were slim, their appeal
is not so wholly without legal merit that Rule 38 sanctions are warranted. In
particular, the issues relating to the First Amendment retaliation and Rule 11
sanctions are not entirely frivolous. Therefore, we exercise our discretion not
to impose damages or costs under Rule 38.

       The judgments and orders of the district court are in all ways
AFFIRMED. The motion for damages and costs on appeal is DENIED.




       7 See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 267 (5th Cir. 1991); Traina v. United
States, 911 F.2d 1155, 1158 (5th Cir. 1990).
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