     Case: 12-30917       Document: 00512170437         Page: 1     Date Filed: 03/11/2013




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

                                                                            FILED
                                                                          March 11, 2013

                                     No. 12-30917                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DAVID C. COBB

                                                  Plaintiff - Appellee
v.

CITY OF HARAHAN, LOUISIANA, a municipal corporation; PROVINO
MOSCA, also known as Vinny Mosca, Mayor, City of Harahan, individually
and in his official capacity

                                                  Defendants - Appellants



              Appeals from the United States District Court for the
                         Eastern District of Louisiana
                                2:11-CV-2595


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       The city of Harahan, Louisiana, and Provino Mosca appeal the district
court’s denial of their motions to dismiss David Cobb’s 42 U.S.C. § 1983 claims
against them. For the following reasons, we REVERSE the district court’s order
denying the motions to dismiss as to the § 1983 claims, DISMISS these claims
against all defendants, and REMAND for further proceedings.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30917

                                     BACKGROUND
       David Cobb, the former Regulatory Director for the city of Harahan,
Louisiana, sued the city and its mayor, Provino Mosca, in his official and
individual capacity.1 Cobb alleged that Mosca, upon being elected mayor, had
fired him without approval of the city council. Cobb noted that the Lawrason
Act provides that “appointment or removal of . . . any department head shall be
subject to approval by the board of aldermen.” L.A. Rev. Stat. § 33:404(A)(3).
Cobb alleged that he was a “department head” as contemplated by the Lawrason
Act, and that the statutory restriction on his termination gave rise to a property
interest protected by the Fourteenth Amendment’s Due Process clause. Cobb
advanced a 42 U.S.C. § 1983 action against all defendants, alleging that he was
deprived of his employment without due process of law. Cobb also brought a
claim under the Fair Labor Standards Act (“FLSA”) against the city, seeking to
recover allegedly unpaid overtime pay.
       Mosca, in his individual capacity, filed a motion under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the § 1983 claim against him. Mosca noted
that the Lawrason Act also provides that “[a]ny department of a municipality,
other than the police department in a municipality with an elected chief of
police, shall be created, abolished, merged, or consolidated by the board of
aldermen, upon written recommendation of the mayor.”                         L.A. Rev. Stat.
§ 33:362(C). According to Mosca’s interpretation, the section of the Lawrason
Act restricting the removal of a department head applies only to the head of a
department that was created in accordance with the act’s requirement, i.e. by the
board of aldermen upon the mayor’s recommendation. Mosca therefore argued



       1
         Because “[f]or purposes of liability, a suit against a public official in his official
capacity is in effect a suit against the local government entity he represents,” Mairena v. Foti,
816 F.2d 1061, 1064 (5th Cir. 1987), we make no distinction in this discussion between claims
against the city and claims against Mosca in his official capacity.

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                                   No. 12-30917

that because Cobb had not alleged that the city’s Regulatory Department was
created in such a way, his allegations did not show that his termination violated
the Lawrason Act. The city moved to dismiss the § 1983 claims against it on the
same grounds.
        Mosca, in his individual capacity, also argued that he was entitled to
qualified immunity. First, Mosca argued that Cobb had not alleged any violation
of his constitutional rights. Mosca maintained that in the absence of Lawrason
Act protection, Cobb’s employment was at will and therefore did not give rise to
a property interest. Second, Mosca argued that Cobb’s allegations did not show
that Mosca’s actions were objectively unreasonable based on clearly established
law.
        The district court held that Cobb had adequately stated a claim that he
was deprived of property without due process of law. The district court noted
Cobb’s allegations that he was a “department head” under the Lawrason Act and
that the defendants had not followed the proper procedure in terminating his
employment. As to Mosca’s qualified immunity defense, the district held as
follows:
        At this juncture, the Court cannot find that Mosca is entitled to
        qualified immunity on Plaintiff’s procedural due process claim. As
        previously explained, Plaintiff has sufficiently stated a claim for
        violation of his procedural due process rights, meeting the first
        prong of the qualified immunity test. The Court now must consider
        whether Mosca’s actions, as alleged in Plaintiff’s Complaint, were
        objectively unreasonable in light of clearly established law at the
        time of his conduct. See Saucier v. Katz, 533 U.S. 194, 200 (2001).
        The Court will not make this determination at the motion to dismiss
        stage. Mosca may re-urge the qualified immunity argument at
        summary judgment if it is appropriate to do so.
        Mosca filed a timely interlocutory appeal challenging the district court’s
denial of his qualified immunity defense. The city also appealed the district
court’s denial of its motion to dismiss. While acknowledging that it is not


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entitled to qualified immunity and that denial of a motion to dismiss is not
normally appealable, the city argues that this court should exercise pendant
jurisdiction to consider issues relevant to its motion that are “inextricably
intertwined” with the qualified immunity analysis. See Thornton v. General
Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998) (“Pendant appellate jurisdiction
is only proper in rare and unique circumstances where a final appealable order
is ‘inextricably intertwined’ with an unappealable order or where review of the
unappealable order is necessary to ensure meaningful review of the appealable
order.”). Specifically, the city maintains that the question of whether Cobb
properly alleged a constitutional violation is relevant both to the qualified
immunity analysis and to the sufficiency of Cobb’s § 1983 claims against all
defendants.
                                  DISCUSSION
      In evaluating a motion to dismiss based on qualified immunity, a court
must first consider whether the facts as alleged show that the defendant’s
conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201
(2001). If so, the court must consider whether the right was sufficiently clear
that a reasonable official would understand that the alleged conduct violates the
right. See id. at 202. The court need not necessarily conduct the analysis in this
order. Pearson v. Callahan, 555 U.S. 223, 227 (2009).
      We first note that the district erred in refusing to consider the merits of
Mosca’s qualified immunity defense. “[Q]ualified immunity questions should be
resolved at the earliest possible stage of a litigation.” Anderson v. Creighton, 483
U.S. 635, 646 n.6 (1987). “We have consistently held that plaintiffs who invoke
§ 1983 must plead specific facts that, if proved, would overcome the individual
defendant’s immunity defense.” Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th
Cir. 1988). “Further, plaintiffs must demonstrate prior to discovery that their
allegations are sufficiently fact-specific to remove the cloak of protection afforded

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by an immunity defense.” Id. If Cobb’s allegations, accepted as true, do not
defeat Mosca’s qualified immunity defense, Mosca should not be subjected to the
burdens of further litigation, including discovery. Because, as explained below,
we conclude that Cobb has not alleged that his constitutional rights were
violated, we do not reach the second prong of the qualified immunity analysis.
      “The threshold requirement of any due process claim is the government’s
deprivation of a plaintiff’s liberty or property interest.” DePree v. Saunders, 588
F.3d 282, 289 (5th Cir. 2009). “Property interests, of course, are not created by
the Constitution. Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law–rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972).      “[I]n order to advance a due process claim in
connection with his termination, [Cobb] must point to some state or local law,
contract or understanding that creates a property interest in his continued
employment.” Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th Cir. 1997).
      We need not consider whether Mosca’s suggested interpretation of the
Lawrason Act is correct. Even assuming the Lawrason Act restricted Mosca’s
authority to fire Cobb without approval of the city council, it provided Cobb with
no property interest in his continued employment. The Lawrason Act says
nothing about why his employment may be terminated; it only specifies how his
employment may be terminated.          An ordinance “merely conditioning an
employee’s removal on compliance with certain specified procedures” does not
endow that employee with a property interest in his employment. Bishop v.
Wood, 426 U.S. 341, 345 (1976).
      In Cabrol, 106 F.3d at 105-06, a town employee unilaterally terminated by
the mayor argued that he possessed a property interest in his job because the
town council generally voted on hiring and firing decisions. We rejected his

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challenge, holding that even if the alleged town practice amounted to an official,
mandatory procedure for termination, it did not create a property interest
because “‘property’ cannot be defined by the procedures provided for its
deprivation.” Id. at 106 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985)). By contrast, we have found a property interest in continued
employment where some source, such as a contract, guaranteed employment for
a specific length of time or provided that the employee could be discharged only
for specific reasons. See, e.g., Russell v. Harrison, 736 F.2d 283, 286-87 (5th Cir.
1984).
                                 CONCLUSION
      Because Cobb’s allegations do not establish that he was deprived of a
property interest, his 42 U.S.C. § 1983 claims against all defendants must be
dismissed. We therefore REVERSE the order of the district court denying the
defendants’ Rule 12(b)(6) motions as to Cobb’s § 1983 claims, and DISMISS
these claims. We REMAND for entry of judgment in favor of Mosca, in his
individual capacity, and for further proceedings concerning Cobb’s FLSA claim
against the city.




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