     Case: 14-40197   Document: 00512808127     Page: 1   Date Filed: 10/20/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-40197                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
SILVESTRE MORENO, JR.,                                          October 20, 2014
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

DONNA INDEPENDENT SCHOOL DISTRICT; COUNTY OF HIDALGO;
REYNALDO ALEGRIA, Individually and in his Official Capacities; NICK
CASTILLO, Individually and in his Official Capacities; EFREN
CENICEROS, Individually and in his Official Capacities; DONALD O.
CRIST, Individually and in his Official Capacities; RENE ALFONSO
GUERRA, Individually and in his Official Capacities; ROBERTO F.
LOREDO, Individually and in his Official Capacities; ALFREDO LUGO,
Individually and in his Official Capacities; ANGEL MAGALLANES,
Individually and in his Official Capacities; MARY MORALES, Individually
and in her Official Capacities; DEBBIE RODRIGUEZ, Individually and in
her Official Capacities,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 7:12-CV-141


Before PRADO, ELROD, and GRAVES, Circuit Judges.
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                                      No. 14-40197
PER CURIAM:*
       Plaintiff Silvestre Moreno, Jr., proceeding pro se, filed claims under 42
U.S.C. § 1983 against the County of Hidalgo (“County”), Donna Independent
School District (“Donna ISD”), the State Bar of Texas, the State Bar’s Office of
Chief Disciplinary Counsel (“CDC”), the Texas Education Agency (“TEA”), TEA
investigator Michael Franks, and numerous employees and/or trustees of the
County and Donna ISD, in their individual and official capacities. In five
separate orders, the district court disposed of Plaintiff’s claims in favor of the
defendants. We affirm.
                                             I.
       Plaintiff was a sixth grade social studies teacher at Veteran’s Middle
School in the Donna ISD. Two incidents during his tenure are relevant to his
claims. In the first, a student allegedly poured a chemical liquid into Plaintiff’s
coffee, causing Plaintiff to become ill.           The student was not criminally
prosecuted.      In the second incident, Plaintiff punched and kicked a
misbehaving student. Following the second incident, Donna ISD suspended
Plaintiff from his teaching position, with pay. Plaintiff participated in Donna
ISD’s three-level grievance process, which included a hearing at which Plaintiff
was afforded an opportunity to present his version of the incident.                    The
suspension was upheld. Subsequently, Donna ISD notified Plaintiff that it
would not renew his teaching contract. Plaintiff participated in a non-renewal
hearing, received an adverse decision, and appealed his non-renewal to the
Texas Commissioner of Education. The Commissioner upheld the decision,
and Plaintiff did not file further appeals.



       * 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. 14-40197
      Plaintiff then sent correspondence to Donald O. Crist, Chief of Police of
the Donna ISD, asking Crist to investigate alleged criminal infractions
committed by Debbie O. Rodriguez, Assistant Superintendent of Human
Resources for Donna ISD, and Mary Morales, a police officer in the Donna ISD.
Plaintiff later sent correspondence to Rene Alfonso Guerra, the Criminal
District Attorney of the County, requesting a criminal investigation into Crist’s
failure to conduct the requested criminal investigations of Rodriguez and
Morales.
      Plaintiff filed suit in the Southern District of Texas, alleging multiple
constitutional violations. In two orders, the district court dismissed the claims
against the State Bar of Texas, the CDC, the TEA, and Franks as barred by
Eleventh Amendment immunity. Plaintiff did not appeal those rulings. The
district court dismissed Plaintiff’s claims against the County and Guerra for
failure to state a claim upon which relief can be granted, dismissed Plaintiff’s
claims against Morales for insufficient service of process, and granted
summary judgment in favor of all other defendants. Plaintiff appealed each of
these three orders.
                                         II.
                                         A.
      Plaintiff alleged that Guerra’s decision not to investigate Plaintiff’s
complaints against Crist violated Plaintiff’s rights to due process and equal
protection. The district court granted a motion to dismiss filed jointly by the
County and Guerra. We review a district court’s grant of a motion to dismiss
de novo. Boyd v. Driver, 579 F.3d 513, 515 (5th Cir. 2009) (per curiam).
      We agree with the district court that the Eleventh Amendment shields
Guerra from official-capacity liability. See Kentucky v. Graham, 473 U.S. 159,
166 (1985) (“[A]n official-capacity suit is . . . to be treated as a suit against the
entity . . . .”); Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A]n unconsenting
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                                 No. 14-40197
State is immune from suits brought in federal courts.”). We further agree that
Plaintiff’s claim against Guerra in his individual capacity is barred by absolute
immunity. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that
prosecutors are immune from civil liability for prosecutorial decisions). With
respect to the County, we agree with the district court that a municipality
“cannot be held liable under § 1983 on a respondeat superior theory,” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), and that Plaintiff did not allege
any municipal policy or custom as the cause of his injury.
                                       B.
      Plaintiff’s claims against Morales are premised on actions Morales
allegedly took during her investigation of the above-described incidents. The
district court never addressed the merits of those claims, instead dismissing
them, with prejudice, for insufficient service of process. See Fed. R. Civ. P.
4(m). On appeal, Plaintiff contends that he properly served Morales and that
the district court’s dismissal was an abuse of discretion.
      We “review a district court’s dismissal under Rule 4(m) for an abuse of
discretion.” Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013).
Because “dismissal with prejudice is an extreme sanction that deprives a
litigant of the opportunity to pursue his claim, it is warranted only where a
clear record of delay or contumacious conduct by the plaintiff exists and a
lesser sanction would not better serve the interests of justice.” Id. at 512–13
(internal quotation marks and citations omitted). To warrant dismissal, we
must find a delay “longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity.” Millan v. USAA Gen.
Indem. Co., 546 F.3d 321, 326–27 (5th Cir. 2008) (internal quotation marks
omitted).
      Upon review of the record, we conclude that the district court properly
exercised its discretion in dismissing Plaintiff’s claims against Morales.
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                                  No. 14-40197
Plaintiff’s attempted service on Morales was invalid for two separate reasons.
First, Plaintiff himself sent summons to Morales via certified mail, but the
Texas Rules of Civil Procedure require that service be made by a “sheriff or
constable or other person authorized by law.” See Tex. R. Civ. P. 103; see also
Fed. R. Civ. P. 4(e) (incorporating service methods approved under state law).
Indeed, the Texas Rules of Civil Procedure expressly prohibit a party to the
lawsuit from serving process. See Tex. R. Civ. P. 103. Second, Morales never
signed the certified mail receipt, rendering proof of service invalid under Texas
Rule of Civil Procedure 107. See Tex. R. Civ. P. 107 (“[T]he return by the officer
or authorized person must also contain the return receipt with the addressee’s
signature.”).
      We also conclude that the district court was within its discretion in
dismissing Plaintiff’s claims with prejudice. Plaintiff filed his lawsuit on April
24, 2012. On December 18, 2012, the district court ruled that Plaintiff had not
properly served Morales and directed Plaintiff do so within thirty days. Over
a year later, on January 31, 2014, when Plaintiff still had not served Morales,
the district court dismissed Plaintiff’s claims. In light of this “clear record of
delay,” the district court’s dismissal with prejudice was warranted. Thrasher,
709 F.3d at 514.
                                       C.
      Finally, Plaintiff alleged that Donna ISD and several of its employees
violated his rights to due process and equal protection declining to renew his
contract. The district court granted summary judgment to the defendants,
ruling that Plaintiff was afforded due process and that Plaintiff failed to allege
or establish that he was treated differently than others who were similarly
situated. Plaintiff’s appeal is limited to the due process claims. “We review
the grant of summary judgment de novo, applying the same standards as the


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                                       No. 14-40197
district court.” In re Egleston, 448 F.3d 803, 809 (5th Cir. 2006) (internal
quotation marks omitted).
       “An essential principle of due process is that a deprivation of life, liberty,
or property ‘be preceded by notice and opportunity for hearing appropriate to
the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950)).       We agree with the district court that the non-renewal
hearing—at which Plaintiff was afforded the opportunity to present his own
version of the relevant events—satisfied the requirements of due process. See
Franceski v. Plaquemines Parish Sch. Bd., 772 F.2d 197, 199–200 (5th Cir.
1985) (“Termination after notice and hearing is not a deprivation cognizable
under 42 U.S.C. § 1983.”). Therefore, defendants were entitled to judgment as
a matter of law. 1
       We AFFIRM.




       1Plaintiff also claims that his suspension was ultra vires. According to Plaintiff, the
superintendent of a school district “has the duty to initiate suspension or termination
proceedings of employees,” but Plaintiff was suspended by Rodriguez, the assistant
superintendent. However, Plaintiff does not explain why the superintendent’s duty would
preclude the assistant superintendent from suspending employees, nor does Plaintiff suggest
how any alleged statutory violation would give rise to a federal constitutional claim.
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