    Case: 17-40443   Document: 00514507004    Page: 1   Date Filed: 06/11/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                               No. 17-40443                    United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                  June 11, 2018
                                                                 Lyle W. Cayce
LANDRY ROUNTREE,                                                      Clerk

            Plaintiff−Appellant,

versus

TROY DYSON; CITY OF BEAUMONT,

            Defendants−Appellees.




                Appeal from the United States District Court
                     for the Eastern District of Texas




Before SMITH, WIENER, and WILLETT, Circuit Judges.
JERRY E. SMITH, Circuit Judge.

     Landry Rountree appeals the dismissal of his 42 U.S.C § 1983 and
related state-law claims against the City of Beaumont and Beaumont Police
Sergeant Troy Dyson. We affirm the judgment of dismissal.

                                     I.
     Rountree owns a towing business and, for thirty years, participated in
Beaumont’s non-consent tow rotation. For an accident that disables a car, the
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                                  No. 17-40443
responding police officer calls a company on the rotation list to clear the wreck.
While Rountree was on the list, non-consent tows for the Beaumont Police
Department made up roughly two-thirds of his annual income.

      In December 2013, Beaumont Police Chief James Singletary revoked
Rountree’s city-issued towing permit. The revocation was ostensibly based on
a complaint by a competing tow company, which asserted—truthfully—that
three of Rountree’s state-issued licenses had lapsed. But Rountree alleges that
Singletary, through one of his officers, persuaded the competitor to lodge the
complaint. In response to the complaint, Singletary sent Rountree a suspen-
sion letter and revoked his permit for two years. Rountree unsuccessfully
appealed the suspension to the City Council and Mayor.

      Although Rountree’s complaint is less than clear on the point, he con-
ceded, in his briefing before the district court, that a city permit is not required
for all towing in Beaumont. Rather, “a permit is only required for certain tow
jobs where police require the tow.” In other words, the permit is part of the
city’s process for choosing which vendors it hires to tow wrecked cars.

      In March 2014, one of Rountree’s customers called him to an accident.
Because his permit remained suspended, Rountree could not tow the custom-
er’s vehicle. Instead of towing the wreck himself, Rountree called a permitted
tow truck to assist. While Rountree was on the scene, Dyson arrived and
ordered Rountree to leave. When Rountree refused, Dyson arrested him for
violating a city ordinance that forbids a tow driver from stopping within one
thousand feet of an accident without a valid tow-truck permit. The charge was
eventually dismissed.

      In January 2016, Rountree sued the city and Dyson in state court under
§ 1983 and related state law. The defendants removed. Following a round of
motions to dismiss, the magistrate judge, acting as the district court by consent
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                                       No. 17-40443
under 28 U.S.C. § 636(c), dismissed all of Rountree’s claims in a thorough opin-
ion. This appeal followed.

                                              II.
       Rountree contends that the district court erred in dismissing his claims
against the city. He describes the dismissal as “sua sponte” because, although
the city moved to dismiss and Rountree responded on the merits, Rountree
amended his complaint while the city’s motion was pending. That amendment,
to Rountree, “nullified” the pending motion to dismiss. Therefore the court
could not have done what it claimed to do—dismiss Rountree’s claims on
motion by the city—and must have acted sua sponte.

       Rountree is mistaken. As explained in a treatise, and reiterated by
several district courts in this circuit, “defendants should not be required to file
a new motion to dismiss simply because an amended pleading was introduced
while their motion was pending.” 1 Rather, “[i]f some of the defects raised in
the original motion remain in the new pleading, the court simply may consider
the motion as being addressed to the amended pleading.” 2 Accordingly, the
court acted within its discretion when it considered the city’s motion before
dismissing the amended complaint.

       Rountree’s second theory is that the court should not have dismissed
Rountree’s class-of-one equal protection claim for suspension of his permit. 3


       16 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. CIV. § 1476 (3d
ed. updated Apr. 2018).
       2Id.; see also Mire v. Bd. of Supervisors of La. State Univ., No. 15-6965, 2016 WL
4761561, at *2 (E.D. La. Sept. 13, 2016); Davis v. Dallas Cty., 541 F. Supp. 2d 844, 848 (N.D.
Tex. 2008).
       3 In recounting the facts underpinning this dispute, Rountree asserts that, in addition
to the suspension, he was assessed fines, and he suggests that the city has failed to fine other
tow companies for similar violations. But his legal argument focuses exclusively on the
length of his suspension, and any contention concerning the fines is therefore forfeited. Even
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As noted, a city permit is not required for general, private tows; a permit is
merely required to be on the city’s non-consent tow list. Class-of-one claims
are inapposite “to a local government’s discretionary decision to include or not
include a company on a non-consent tow list.” Integrity Collision Ctr. v. City
of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (quotation marks omitted).

       Though Integrity did not directly address the decision to revoke a tow
driver’s non-consent towing permit (thereby removing him from the list), its
reasoning extends here. “[A] class-of-one equal-protection claim is unavailable
in a public employment context,” and “[t]hat conclusion logically applies as well
to a local government’s discretionary decision to include or not include a com-
pany on a non-consent tow list.” 4 It “would be incompatible with the discretion
inherent in the challenged action” to “allow[] equal protection claims on such
grounds.” 5

       Employment decisions “involve discretionary decisionmaking based on a
vast array of subjective, individualized assessments,” 6 so “a city’s decision to
purchase services from private companies for its non-consent tows” can include
“factors that are not reasonably measurable, such as reputation, personal expe-
rience, and the particularities of how the city wishes to operate its non-consent
tow program.” 7 And, it would be incompatible to allow an equal protection



if Rountree had adequately briefed an equal protection challenge to the fines, the district
court correctly concluded that the claim fails. See Engquist v. Ore. Dep’t of Agric., 553 U.S.
591, 604 (2008) (“[A]llowing an equal protection claim on the ground that a ticket was given
to one person and not others, even if for no discernible or articulable reason, would be incom-
patible with the discretion inherent in the challenged action.”).
       Integrity, 837 F.3d at 586 (quotation marks omitted). “A city is a consumer of towing
       4

companies’ services when it contracts for non-consent tows.” Id. at 587 n.3.
       5   Id. at 586 (quotation marks omitted).
       6   Id. at 587 (quoting Engquist, 553 U.S. at 603).
       7   Id.
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claim on the ground that one person received a discretionary punishment and
another did not, 8 “even if for no discernable or articulable reason.” Engquist,
553 U.S. at 604 (employing a hypothetical about the issuance of speeding
tickets). 9 It thus makes sense to extend Integrity here. If a city has the discre-
tion to choose from whom it contracts private services, then it must equally
retain the discretion to choose when to terminate such relationship.

       Alternatively, Rountree’s equal-protection claim fails because he did not
sufficiently allege that he has been treated differently from others similarly
situated. 10 His complaint generally alleges that other similarly situated indi-
viduals were treated differently, but he points to no specific person or persons
and provides no specifics as to their violations. 11 Though we take factual



       8Beaumont vests the chief of police with the “sole discretion” to determine whether a
substantial violation occurred. BEAUMONT, TEX., ORD. § 6.08.005(b).
       9 Of course, an allegation “bas[ed] o[n] race or sex would state an equal protection
claim, because such discriminatory classifications implicate basic equal protection concerns.”
Engquist, 553 U.S. at 604; accord Integrity, 837 F.3d at 588 n.5. Nothing here should be read
to suggest otherwise.
       10 A class-of-one equal-protection claim requires the plaintiff “show that (1) he or she
was intentionally treated differently from others similarly situated and (2) there was no
rational basis for the difference in treatment.” Lindquist v. City of Pasadena, 669 F.3d 225,
233 (5th Cir. 2012) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
       11 Rountree generally purports that “when other companies had similar violations,
nothing was done to address them.” Rountree notes that Gregory Stanley, who filed the com-
plaint against Rountree, let his storage lot license lapse and was not suspended. Stanley,
however, is not an apt comparator, both because he had only one license lapse (not multiple
like Rountree) and because he had no complaint filed against him. The police department is
only required to investigate “complaints arising from reported violations.” BEAUMONT, TEX.,
ORD. § 6.08.005(a). Thus, Rountree needed to point to other tow-truck operators who had
license lapses and had complaints filed. See Lindquist, 669 F.3d at 234–35 (rejecting as equal
comparators persons who were not implicated by the relevant ordinance); Beeler v. Rounsa-
vall, 328 F.3d 813, 816–817 (5th Cir. 2003) (rejecting as an equal comparator someone who
applied to renew permits where the plaintiff had applied for a new permit).
       Additionally, Rountree was cited for a fourth violation wherein he “refused to allow
Officer[s] . . . to inspect records of vehicles towed at” his facility in compliance with Section
6.08.006(b)(3) of the City Ordinances. Rountree does not contend that any other driver had
this additional violation of refusing to permit inspections as required by law. That additional
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allegations as true at the Federal Rule of Civil Procedure 12(b)(6) stage,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). An allegation that others are treated differently, without more, is
merely a legal conclusion that we are not required to credit. 12 Rountree’s equal
protection claim fails.

       Finally, Rountree challenges the dismissal of his false-arrest claim
against Dyson, who is “entitled to qualified immunity unless there was no
actual probable cause for the arrest” and he was “objectively unreasonable in
believing there was probable cause for the arrest.” Davidson v. City of Stafford,
848 F.3d 384, 391 (5th Cir. 2017). Crucially, “[t]his probable cause may be for
any crime and is not limited to the crime that the officers subjectively consid-
ered at the time they perform an arrest.” Id. at 392.

       Dyson cites Beaumont City Ordinance Section 6.08.006(a)(1), which pro-
vides, “All tow truck operators shall . . . [o]bey all lawful orders given by any
police officer and not in any manner interfere with any police officer in the
performance of his/her duty.” Violating that is a misdemeanor. See BEAU-
MONT,   TEX. ORD. § 6.08.007(a). Rountree admits in his complaint that Dyson
ordered him “to move his tow truck and leave the scene,” but Rountree
“declined to follow the sergeant’s direction to leave the scene.” In his briefing,
Rountree does not discuss Section 6.08.006(a)(1) or make any argument that
Dyson would have been objectively unreasonable in believing his order to be
lawful. Accordingly, because Rountree did not obey Dyson’s apparently lawful



violation could rationally account for any perceived disparities in treatment.
       12 In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (“We do not
accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”)
(internal quotation marks omitted); Iqbal, 556 U.S. at 679 (“While legal conclusions can pro-
vide the framework of a complaint, they must be supported by factual allegations.”).
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order, Dyson was not objectively unreasonable in believing that he had proba-
ble cause to arrest. Rountree’s false-arrest claim fails. 13

       The judgment of dismissal is AFFIRMED.




       13See Payne v. City of Olive Branch, 130 F. App’x 656, 662 (5th Cir. 2005) (per curiam)
(dismissing unreasonable-search-and-seizure claim where officer reasonably could have
believed that suspect failed to obey a police order).
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