                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40214



TOMAS DURAN,

                                               Plaintiff-Appellant,

versus

CITY OF CORPUS CHRISTI; ET AL,

                                             Defendants,

CITY OF CORPUS CHRISTI; DAVID GARCIA; DONNA JAMES; LEE DUMBAULD;
KEITH McNEELY; McGRIFF, SEIBELS & WILLIAMS, INC.,

                                              Defendants-Appellees.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                            (2:04-CV-500)
                        --------------------

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Tomas Duran (“Duran”) sued Defendants-

Appellees the City of Corpus Christi, David Garcia, Donna James,

Lee Dumbauld, Keith McNeely, and McGriff, Seibels & Williams, Inc.,

asserting claims under 42 U.S.C. § 1983, the Racketeer Influenced

and Corrupt Organizations Act1 (“RICO”), and Texas’s state law of


     *
       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this opinion should not be published and is not precedent except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.
     1
         18 U.S.C. § 1961 et seq.
negligent misrepresentation.          The district court dismissed all of

Duran’s claims.      We affirm in part, and reverse and remand in part.

       Duran alleged that he is a licensed insurance agent who in

2003 prepared a bid on behalf of Entrust, Inc., for Entrust to

administer the City of Corpus Christi’s (“the City”) health care

program.       According   to   Duran’s      complaint,   the   City   rejected

Entrust’s bid in retaliation for Duran’s past complaints to the

City and its officers about the City’s allegedly fraudulent use of

public funds. In addition, Duran alleges that the City’s allegedly

fraudulent use of public funds constituted mail and wire fraud that

injured Duran, rendering the Defendants liable to him under RICO.

And, finally, Duran alleges that the City and its officers made

negligent misrepresentations to him throughout the course of their

allegedly fraudulent use of public funds.

       Defendants the City, Garcia, James, and Dumbauld moved to

dismiss all of Duran’s claims under Federal Rule of Civil Procedure

12(b)(6) for failure to state any claims on which relief could be

granted.   In a very thorough order, the district court (1) granted

each    Defendant’s    motion    to    dismiss,    and    (2)   dismissed   sua

sponte   all    of   Duran’s    claims   against   Defendants     McNeely   and

McGriff, Seibels & Williams, Inc., for failure to state any claims

against those defendants.

       Given the care with which the district court addressed Duran’s

complaint, we decline to reiterate much of the well and accurately

explicated facts and law in this case.             Rather, for the reasons

                                         2
stated in the district court’s order, we affirm dismissal of (1)

all   of   Duran’s   RICO   claims,       (2)   all   of   Duran’s   negligent

misrepresentation claims, and (3) Duran’s § 1983 claims against

Defendants Garcia, James,     Dumbauld, McNeely, and McGriff, Seibels

& Williams, Inc.

      The district court’s only error was in its treatment of

Duran’s direct § 1983 claim against the City.                 As it did with

Duran’s other claims, the district court dismissed this claim under

Rule 12(b)(6), reasoning that Duran (1) failed to “allege[] that

the City has a policy or custom of retaliating against individuals

who criticize it or its decisionmakers,” and (2) failed to “allege

that the City Council’s decision not to renew the Entrust contract

was ‘substantially motivated’ by [Duran’s] protected speech.”              On

appeal, Duran has made no effort to direct our attention to any

allegations in his complaint that rebut the district court’s

conclusions.   Given the standard under which we must review a Rule

12(b)(6) dismissal,2 however, we have searched Duran’s complaint

      2
       Generally, 12(b)(6) motions to dismiss are disfavored: The
motion should not be granted “unless the plaintiff would not be
entitled to relief under any set of facts or any possible theory
that he could prove consistent with the allegations in the
complaint.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
“The complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be taken as
true.” Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.
1997). But our fealty to the plaintiff’s complaint does not extend
to “conclusory allegations or unwarranted deductions of fact.”
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000). Surviving a 12(b)(6) motion thus requires that a plaintiff
invoke something more than mere conclusions. See Schultea v. Wood,
47 F.3d 1427, 1431 (5th Cir. 1995) (en banc) (“Significantly, the

                                      3
for any statements that sufficiently allege that (1) the City

retaliated against him pursuant to official policy, and (2) the

City’s allegedly retaliatory action was substantially motivated by

his speech.    Finding a surfeit of allegations on both points, we

reverse the district court’s dismissal of this § 1983 claim.

     Section 1983 establishes a civil cause of action to redress

the deprivation of federal constitutional and statutory rights by

state officials.3    As the district court reasoned, stating a § 1983

First Amendment retaliation claim directly against a municipality

requires that the plaintiff allege facts tending to show, inter

alia, that (1) the municipality acted pursuant to official policy

or custom,4 and (2) the municipality’s allegedly retaliatory action

was substantially motivated by the plaintiff’s speech.5

     First, we hold that in his complaint Duran did sufficiently

allege that, in retaliating against him, the City acted pursuant to

official policy.         This circuit defines “policy” to include a

“decision    that   is   officially   adopted   and   promulgated   by   the


requirement of making a short and plain statement demands more than
a statement of conclusions . . . .”). Moreover, “[d]ismissal is
proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief.”        Blackburn v. City of
Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (emphasis added).
     3
         42 U.S.C. § 1983.
     4
       Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978);
Tharling v. Port of Lavaca, 329 F.3d 422, 427 (5th Cir. 2003).
     5
       Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002);
Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359,
366 (5th Cir. 2000).

                                      4
municipality’s lawmaking officers . . . .”6             Here, Duran alleged

that the City’s lawmaking body —— the City Council7 —— officially

adopted the decision to “select[] [a competing bid] and . . .

reject[]” the Entrust bid that Duran prepared.            As that rejection

is precisely the action that Duran contends was retaliatory, the

“policy” requirement is satisfied.

       Second, we hold that Duran sufficiently alleged that his

complaints regarding the City’s allegedly fraudulent use of public

funds substantially motivated the City’s rejection of the Entrust

bid.       As the district court noted, the City could have been

substantially motivated by Duran’s speech only if it knew of his

speech.8       Thus,   we   focus   our   examination    on    whether   Duran

sufficiently alleged facts tending to show that the City knew of

his allegedly protected speech, and, if so, whether the City’s

knowledge substantially motivated its decision.9              We conclude that

the following allegations in Duran’s complaint sufficiently alleged


       6
           Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
       7
       See CHARTER OF THE CITY OF CORPUS CHRISTI art. I, § 3 (“[A]ll
powers of the city shall be vested in an elective council . . .
which shall . . . determine policies.”); id. § 4 (“The legislative
power of the city is vested in the city council.”).
       8
       See Tharling, 329 F.3d at 428 (“It is axiomatic that a party
cannot be ‘substantially motivated’ by a circumstance of which that
party is unaware.”).
       9
      Because the City Council, as the City’s lawmaking authority,
is the body that actually carried out the retaliatory action
alleged by Duran, our search for allegations of the City’s
awareness of Duran’s speech is actually a search for allegations
that the City Council was aware of Duran’s speech.

                                      5
such facts.      First, Duran alleged that he “informed . . . Mayor

Loyd Neal on numerous occasions that the fraud would likely result

in coverage denial by the insurance companies.”                      Under the City’s

charter, the mayor is a member of the City Council10; his knowledge

of Duran’s complaints is thus relevant to whether the City Council

knew of his complaints.            Second, Duran alleged that he “informed

. . . City decision makers of the fraudulent scheme.”                      Third, Duran

alleged that he “informed the City of Corpus Christi that he

refused and failed to participate in the fraudulent scheme to

obtain insurance coverage for Laura Vasquez.”                      And, finally, Duran

alleged that “[t]he City’s failure to renew Plaintiff’s contract

was motivated by Plaintiff’s protected speech.”

     Taken together, these allegations are sufficient to survive

the City’s Rule 12(b)(6) motion to dismiss.                       We therefore reverse

the district court’s dismissal of Duran’s § 1983 retaliation claim

directly against        the      City    and       remand   his   action   for   further

proceedings consistent with this opinion.

AFFIRMED in part; REVERSED and REMANDED in part.




     10
          See CHARTER   OF THE   CITY   OF   CORPUS CHRISTI art. II, § 1.

                                               6
