     Case: 19-20237   Document: 00515374002     Page: 1   Date Filed: 04/07/2020




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

                                                                   FILED
                                 No. 19-20237                   April 7, 2020
                                                              Lyle W. Cayce
DAVID BUREN WILSON,                                                Clerk


             Plaintiff - Appellant

v.

HOUSTON COMMUNITY COLLEGE SYSTEM,

             Defendant - Appellee


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


Before DAVIS, SMITH, and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiff David Wilson appeals the district court’s judgment dismissing
his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction under
Rule 12(b)(1). Wilson, a former trustee of the Board of Trustees (“Board”) of
Defendant Houston Community College System (“HCC”), asserts that HCC
violated his First Amendment right to free speech when the Board publicly
censured him. Because, under our precedent, Wilson’s allegations establish
standing and state a claim for relief under § 1983 for a First Amendment
violation, we REVERSE the district court’s judgment and REMAND Wilson’s
§ 1983 claim for damages for further proceedings. As the parties agree,
however, Wilson’s claims for declaratory and injunctive relief are moot, as
Wilson is no longer a Board trustee. Therefore, we GRANT HCC’s motion for
     Case: 19-20237       Document: 00515374002         Page: 2    Date Filed: 04/07/2020


                                          No. 19-20237

partial dismissal of Wilson’s appeal and instruct the district court to dismiss
Wilson’s claims for declaratory and injunctive relief after remand.
                                  I. BACKGROUND
       HCC is a public community college district 1 that operates community
colleges throughout the greater Houston area. 2 HCC is run by its Board, which
is made up of nine trustees. 3 Each trustee is elected by the public from single-
member districts to serve a six-year term without remuneration. 4 Through the
resolutions and orders it passes, the Board shapes HCC’s policy, enhances the
institution’s public image, and preserves institutional independence. 5 On
November 5, 2013, Wilson was elected to the Board as the trustee for HCC
District 2.
       Beginning in 2017, Wilson voiced concern that trustees were violating
the Board’s bylaws and not acting in the best interests of HCC. After
disagreeing with HCC’s decision to fund a campus in Qatar, Wilson made his
complaints public by arranging robocalls regarding the Board’s actions and
interviewing with a local radio station. When HCC allowed one trustee to vote
via videoconference, Wilson contended that the bylaws prohibited such voting.
He subsequently filed a lawsuit against HCC and the individual Board trustees
in state court seeking a declaratory judgment that the videoconference vote
was illegal under the bylaws and requesting an injunction. After the Board
allegedly excluded Wilson from an executive session, he filed a second lawsuit




       1  Under Texas law, a community college district is a “school district,” and a school
district is considered a “governmental agency,” along with municipalities and other political
subdivisions of the state. TEX. LOC. GOV’T. CODE ANN. §§ 271.003(4), (9).
        2 TEX. EDUC. CODE ANN. §§ 130.0011, 130.182.
        3 Id. § 130.084.
        4 Id. § 130.082.
        5 Id. § 51.352.

                                                 2
     Case: 19-20237       Document: 00515374002         Page: 3    Date Filed: 04/07/2020


                                          No. 19-20237

against HCC and the trustees in state court asserting that his exclusion was
unlawful and again seeking declaratory and injunctive relief. 6
       Additionally, Wilson hired a private investigator to confirm that one of
the trustees did in fact reside within the district in which she was elected. He
maintained a website where he published his concerns, referring to his fellow
trustees and HCC by name. Wilson also hired a private investigator to
investigate HCC.
       On January 18, 2018, the Board voted in a regularly-scheduled session
to adopt a resolution publicly censuring Wilson for his actions. In the censure
resolution, the Board chastised Wilson for acting in a manner “not consistent
with the best interests of the College or the Board, and in violation of the Board
Bylaws Code of Conduct.” The censure, the Board emphasized, was the
“highest level of sanction available,” as Wilson was elected and could not be
removed. The Board directed Wilson to “immediately cease and desist from all
inappropriate conduct” and warned that “any repeat of improper behavior by
Mr. Wilson will constitute grounds for further disciplinary action by the
Board.” 7
       Upon being censured, Wilson amended his first state-court petition to
include claims against HCC and the trustees under 42 U.S.C. § 1983, asserting
that the censure violated his First Amendment right to free speech and his
Fourteenth Amendment right to equal protection. Wilson asserted that the
Board’s bylaws were overly broad and unconstitutional as applied to him and
were subject to “strict scrutiny” review. He therefore requested that HCC and


       6  Wilson ultimately amended his first lawsuit to include the claims asserted in his
second lawsuit and voluntarily dismissed the second lawsuit.
        7 The Board also resolved to impose the following sanctions as part of its censure:

(1) Wilson would be ineligible for election to Board officer positions for the 2018 calendar
year, (2) Wilson would be ineligible for reimbursement for any college-related travel for the
2017-18 college fiscal year, and (3) Wilson’s requests for access to the funds in his Board
account for community affairs would require Board approval.
                                                 3
    Case: 19-20237         Document: 00515374002        Page: 4    Date Filed: 04/07/2020


                                          No. 19-20237

the trustees be enjoined from enforcing the censure. Wilson also sought
$10,000 in damages for mental anguish, $10,000 in punitive damages, and
reasonable attorney’s fees.
      HCC and the trustees subsequently removed Wilson’s state-court
proceeding to federal district court on the basis of federal question jurisdiction.
Wilson filed a motion for remand, which the district court denied. Wilson
thereafter amended his complaint naming only HCC as a defendant and
dropping his claims against the individual trustees.
      HCC moved to dismiss Wilson’s suit pursuant to Rule 12(b)(1) for lack of
jurisdiction and Rule 12(b)(6) for failure to state a claim. The district court
granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction,
determining that Wilson could not demonstrate an injury in fact and therefore
lacked Article III standing. Wilson timely appealed.
      In August 2019, Wilson resigned as trustee for HCC’s District 2. In the
November 2019 election, Wilson ran as a candidate in the race for trustee of
HCC’s District 1. He was ultimately defeated in the December 2019 run-off
election.

                                   II. DISCUSSION
A. Standard of Review
      This court’s review of dismissals under Rule 12(b)(1) for lack of
jurisdiction and dismissals under Rule 12(b)(6) for failure to state a claim is de
novo. 8 When a party files multiple Rule 12 motions, we must consider the
Rule 12(b)(1) jurisdictional attack before considering the Rule 12(b)(6) merits
challenge. 9 The party responding to the 12(b)(1) motion bears the burden of




      8   Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
      9   Id.
                                                 4
     Case: 19-20237       Document: 00515374002         Page: 5     Date Filed: 04/07/2020


                                          No. 19-20237

proof that subject matter jurisdiction exists. 10 A district court may find a lack
of subject matter jurisdiction on either: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” 11
       To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” 12 “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 13
B. Standing
       Under Article III of the Constitution, federal courts can resolve only
“cases” and “controversies.” 14 In line with this requirement, a plaintiff must
have standing—that is, a showing of (1) an injury in fact (2) that is traceable
to the defendant’s conduct and (3) that can be redressed by the court. 15 An
injury in fact is “an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” 16 In the context of free speech, “the governmental action need
not have a direct effect on the exercise of First Amendment rights . . . [but]
must have caused or must threaten to cause a direct injury to the plaintiffs.”17




       10 Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
       11 Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989)
(quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
       12 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).
       13 Iqbal, 556 U.S. at 678.
       14 U.S. CONST. art. III, § 2.
       15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
       16 Id. (cleaned up).
       17 Meese v. Keene, 481 U.S. 465, 472 (1987).

                                                 5
     Case: 19-20237        Document: 00515374002          Page: 6     Date Filed: 04/07/2020


                                           No. 19-20237

       In dismissing Wilson’s complaint under Rule 12(b)(1), the district court,
relying on the Tenth Circuit’s decision in Phelan v. Laramie County
Community College Board of Trustees, held that Wilson had not suffered any
injury in fact. 18 Specifically, the district court concluded that Wilson could not
show an invasion of a legally protected interest because the Board’s censure
did not forbid Wilson from performing his official duties or speaking publicly. 19
The district court erred in relying on Phelan to determine that Wilson lacked
standing, however, because the Phelan court held that the plaintiff in fact had
standing, noting that the plaintiff had alleged the Board’s censure tarnished
her reputation. 20
       In this case, Wilson alleges that the censure was issued to punish him
for exercising his free speech rights and caused him mental anguish. Under
our precedent, Wilson’s allegation of retaliatory censure is enough to establish
an injury in fact. 21 Additionally, the Supreme Court has held that a free speech
violation giving rise to a reputational injury is an injury in fact. 22 A censure is
defined as an “official reprimand or condemnation; an authoritative expression




       18   Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at *3
(S.D. Tex. Mar. 22, 2019); see also Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235
F.3d 1243 (10th Cir. 2000).
         19 Wilson, 2019 WL 1317797 at *3.
         20 235 F.3d at 1247 n.1.
         21 See Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999) (noting that “at least

twice, this court has granted relief to elected officials claiming First Amendment retaliation”)
(citations omitted). Our sister courts agree that a retaliatory action resulting in a chilling of
free speech constitutes an injury in fact. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc) (“[T]he harm suffered is the adverse consequences which flow from
the . . . constitutionally protected action.”); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997)
(“The injury asserted is the retaliatory accusation’s chilling effect on [plaintiff’s] First
Amendment rights . . . . We hold that [plaintiff’s] failure to demonstrate a more substantial
injury does not nullify his retaliation claim.”). See also Ibanez v. Fla. Dep’t of Bus. & Prof’l
Regulation, Bd. of Accountancy, 512 U.S. 136, 139 (1994) (holding, in commercial speech case,
that state board of accountancy’s censure of accountant violated First Amendment, thereby
assuming that a censure alone constitutes an injury in fact).
         22 Meese v. Keene, 481 U.S. 465, 473 (1987).

                                                   6
     Case: 19-20237       Document: 00515374002          Page: 7     Date Filed: 04/07/2020


                                           No. 19-20237

of disapproval or blame; reproach.” 23 Wilson alleges that a public censure has
caused him mental anguish. That injury stemming from his censure, like a
reputational injury, is enough to confer standing. 24
       Though not precisely a matter of standing, Wilson’s claims for
declaratory and injunctive relief run up against a jurisdictional problem.
Wilson is no longer a Board trustee; consequently, the HCC’s Code of Conduct
no longer governs him. Therefore, his claims seeking declaratory and
injunctive relief that the Code of Conduct, and as applied to him through the
resolution of censure, is an unconstitutional prior restraint are moot. We grant
HCC’s motion for partial dismissal of Wilson’s appeal of those claims and
instruct the district court to dismiss those claims as moot after remand.
Wilson’s claim for damages continues to present a live controversy. 25
C. First Amendment Claim
       As we have noted, if “constitutional rights were violated, and if that
violation ‘caused actual damage,’ then [the plaintiff] has ‘stated a live claim
under § 1983.’” 26 Wilson argues that the censure he suffered is an actionable
First Amendment claim under § 1983. Although the district court did not
technically reach this issue, having dismissed the case for lack of standing
under Rule 12(b)(1) and not for failure to state a claim under Rule 12(b)(6), it



       23  Censure, BLACK’S LAW DICTIONARY (11th ed. 2019).
       24  In Sims v. Young, 556 F.2d 732, 734 (5th Cir. 1977), a firefighter brought a First
Amendment claim under § 1983 against city officials after being suspended for twenty days.
We held that the plaintiff had satisfied the injury-in-fact requirement of standing despite the
fact he had since been reinstated because the suspension remained “a blot on his record.” Id.
A censure, like a suspension, can be characterized as a “blot.”
        25 See Boag v. MacDougall, 454 U.S. 364 (1975) (per curiam) (although respondent

complaining of solitary confinement had since been transferred, “the transfer did not moot
the damages claim”); Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 (5th Cir. 2009)
(claim for nominal damages avoids mootness); Pederson v. La. State Univ., 213 F.3d 858, 874
(5th Cir. 2000) (graduation mooted claims for injunctive relief, not damages).
        26 Wilson v. Birnberg, 667 F.3d 591, 595–96 (5th Cir. 2012) (quoting Henschen v. City

of Houston, 959 F.2d 584, 588 (5th Cir. 1992)).
                                                  7
     Case: 19-20237       Document: 00515374002          Page: 8     Date Filed: 04/07/2020


                                           No. 19-20237

effectively concluded that Wilson’s censure did not give rise to a First
Amendment claim. 27 The district court followed Phelan, which dismissed the
plaintiff’s claim on summary judgment, determining that the censure did not
infringe on the plaintiff’s free speech rights because the censure did not punish
her for exercising those rights nor did it deter her free speech. 28 Wilson argues
that the district court improperly endorsed the Tenth Circuit’s decision in
Phelan, ignoring Fifth Circuit precedent and failing to recognize the protection
afforded to an elected official’s political speech. We agree.
       The Supreme Court has long stressed the importance of allowing elected
officials to speak on matters of public concern. 29 We have echoed this principle
in our decisions, emphasizing that “[t]he role that elected officials play in our
society makes it all the more imperative that they be allowed freely to express
themselves on matters of current public importance.” 30 As a result, and as
described below, this court has held that censures of publicly elected officials
can be a cognizable injury under the First Amendment.
       We first visited whether a censure can constitute a First Amendment
violation in Scott v. Flowers. 31 There, a plaintiff was elected to a four-year term
as a justice of the peace in Texas. 32 Concerned that the state was dismissing
the majority of traffic-offense ticket appeals, the judge published an “open


       27  See Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at
*3 (S.D. Tex. Mar. 22, 2019) (“[The Tenth Circuit in Phelan] has established that a majority’s
decision to censure a member of a political body does not give rise to a First Amendment
violation claim. While not binding, the court’s reasoning in Phelan, is instructive here.”
(internal citation omitted)).
        28 Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247 (10th Cir.

2000).
        29 See, e.g., Bond v. Floyd, 385 U.S. 116, 135–36 (1966) (“The manifest function of the

First Amendment in a representative government requires that legislators be given the
widest latitude to express their views on issues of policy.”).
        30 Rangra v. Brown, 566 F.3d 515, 524 (5th Cir.) (citation omitted), dismissed as moot

en banc, 584 F.3d 206 (5th Cir. 2009).
        31 910 F.2d 201 (5th Cir. 1990).
        32 Id. at 203.

                                                  8
    Case: 19-20237       Document: 00515374002            Page: 9    Date Filed: 04/07/2020


                                          No. 19-20237

letter” to county officials criticizing the district attorney’s office and county
court. 33 The Texas Commission on Judicial Conduct (“Commission”)
subsequently issued a formal, public reprimand to the judge for being
“insensitive” in his statement, thereby “cast[ing] public discredit upon the
judiciary.” 34 The reprimand was a “warning,” cautioning him to be “more
restrained and temperate” in the future. 35 The judge filed suit under § 1983,
arguing the public censure violated his First Amendment right of free speech. 36
      This court applied the Supreme Court’s two-step inquiry to assess public
employees’ claims of First Amendment violations set forth in Pickering v.
Board of Education. 37 First, we determined that the judge’s speech addressed
a matter of public concern and therefore was protected speech. 38 Second, we
balanced    the    judge’s    free    speech     rights    against     the      Commission’s
countervailing interest in promoting the efficient performance of its normal
functions. 39 We underscored that the judge was “not hired by a governmental
employer. Instead, he was an elected official, chosen directly by the voters of
his justice precinct, and, at least in ordinary circumstances, removable only by
them.” 40 The state consequently could not justify its reprimand “on the ground
that it was necessary to preserve coworker harmony or office discipline.” 41
While we recognized that the state may proscribe the speech of elected judges
more so than other elected officials, the censure touched upon “core first




      33 Id. at 204.
      34 Id.
      35 Id. at 205 n.6.
      36 Id. at 205.
      37 Id. at 210; see Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
      38 Id. at 211.
      39 Id.
      40 Id. at 212.
      41 Id.

                                                  9
    Case: 19-20237             Document: 00515374002         Page: 10     Date Filed: 04/07/2020


                                                No. 19-20237

amendment values.” 42 We concluded that the state’s “concededly legitimate
interest in protecting the efficiency and impartiality of the state judicial
system” could not outweigh the judge’s First Amendment rights, and we
expunged the censure. 43
          In Colson v. Grohman, this court reiterated there is “no doubt” that
formal reprimands are actionable under § 1983. 44 Reaffirming Scott, we
explained that “a formal reprimand, by its very nature, goes several steps
beyond a criticism or accusation and even beyond a mere investigation.” 45 “It
is punitive in a way that mere criticisms, accusations, and investigations are
not.” 46
          We again held that elected officials are entitled to be free from retaliation
for constitutionally protected speech in Jenevein v. Willing. 47 That case, like
Scott, centered on the Commission’s public censure of an elected judge, this
time a state district court judge. 48 The judge had given a press conference and
sent a mass email to explain that he was filing a complaint against a lawyer
for comments made about him in pleadings and that he therefore had to recuse
himself. 49
          Breaking from Scott, we held that the Pickering balancing test did not
apply to elected employees of the state. 50 Instead, we adopted strict scrutiny to
assess the government’s regulation of an elected official’s speech to his


          42   Id. (quoting Morial v. Judiciary Comm’n of State of La., 565 F.2d 295, 301 (5th Cir.
1977)).
          Id. at 212–13.
          43

          174 F.3d 498, 512 (5th Cir. 1999).
          44
       45 Id. at 512 n.7.
       46 Id. In Colson, by contrast, the court found that the plaintiff had failed to state a

claim; she was “never arrested, indicted, or subjected to a recall election[,] [n]or was she
formally reprimanded.” Id. at 511 (internal footnote omitted).
       47 493 F.3d 551 (5th Cir. 2007).
       48 Id. at 556.
       49 Id. at 553–55.
       50 Id. at 557–58.

                                                      10
    Case: 19-20237        Document: 00515374002           Page: 11     Date Filed: 04/07/2020


                                            No. 19-20237

constituency. 51 Noting that a state’s interest in suppressing the speech of an
elected official is weak, we held that even though the order was “entered in
good faith effort to pursue the public interest . . . [t]o the extent that the
commission censured Judge Jenevein for the content of his speech, shutting
down all communication between the Judge and his constituents, we reverse
and remand with instructions to expunge that part of the order.” 52
       The above precedent establishes that a reprimand against an elected
official for speech addressing a matter of public concern is an actionable First
Amendment claim under § 1983. Here, the Board’s censure of Wilson
specifically noted it was punishing him for “criticizing other Board members
for taking positions that differ from his own” concerning the Qatar campus,
including robocalls, local press interviews, and a website. The censure also
punished Wilson for filing suit alleging the Board was violating its bylaws. As
we have previously held, “[R]eporting municipal corruption undoubtedly
constitutes speech on a matter of public concern.” 53 Therefore, we hold that
Wilson has stated a claim against HCC under § 1983 in alleging that its Board
violated his First Amendment right to free speech when it publicly censured
him.




       51  Id. at 558. In Rangra v. Brown, this court later clarified that the Pickering balancing
test did not apply to elected officials’ First Amendment retaliation claims, despite its earlier
use in Scott, because of intervening Supreme Court precedent (specifically, Republican Party
of Minn. v. White, 536 U.S. 765, 774–75 (2002)). 566 F.3d 515, 525 n.26 (5th Cir.), dismissed
as moot en banc, 584 F.3d 206 (5th Cir. 2009). The court highlighted other instances in which
strict scrutiny was used to protect free speech concerning public matters. Id. at 525 n.25.
        52 Jenevein, 493 F.3d at 560–62.
        53 Harmon v. Dall. Cty., 927 F.3d 884, 893 (5th Cir. 2019), as revised (July 9, 2019)

(per curiam). See also Lane v. Franks, 573 U.S. 228, 241 (2014) (“[C]orruption in a public
program and misuse of state funds [] obviously involve[] a matter of significant public
concern.”); Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (“Exposing governmental
inefficiency and misconduct is a matter of considerable significance.”).
                                                   11
    Case: 19-20237        Document: 00515374002           Page: 12     Date Filed: 04/07/2020


                                            No. 19-20237

       HCC tries to distinguish Scott and Jenevein, arguing that the cases
concerned judges, not local legislators. But the fact that these cases dealt with
judges matters not. The Jenevein court emphasized that elected judges are,
ultimately, “political actors”—if anything, judges are afforded less protection
than legislators. 54 HCC also contends that, unlike here, the Texas Commission
on Judicial Conduct could order judges to undergo additional education,
suspend them, or remove them from office. Even if true, the Commission’s
censure did not draw upon such authority in either case. 55
       HCC also argues that it had a right to censure Wilson as part of its
internal governance as a legislative body and that Wilson’s First Amendment
rights were not implicated. It cites to numerous cases from our sister circuits,
purportedly supporting its argument. A close review of those cases, however,
reveals that those cases either did not involve censures, or involved claims
against only the individual members of a governing body (and not the
governing body itself) who were entitled to assert legislative immunity. For
example, Blair v. Bethel School District did not involve a public censure but a
vote by a public school board to remove a fellow board member as vice president
of the board. 56 Zilich v. Longo also did not concern a censure, but a city council


       54  493 F.3d at 560. See Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990) (“[W]e have
recognized that the state may restrict the speech of elected judges in ways that it may not
restrict the speech of other elected officials.”).
        55 HCC is correct that the additional measures taken against Wilson—(1) his

ineligibility for election to Board officer positions, (2) his ineligibility for reimbursement for
college-related travel, and (3) the required approval of Wilson’s access to Board funds—do
not violate his First Amendment rights. A board member is not entitled to be given a position
as an officer. See Rash-Aldridge v. Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (per curiam) (a
city council member did not have a First Amendment claim after the council removed her
from a board following her public disagreement with the council majority). Second, nothing
in state law or HCC’s bylaws gives Wilson entitlement to funds absent approval. As for travel
reimbursements, we have held that a failure to receive travel reimbursement is not an
adverse employment action for a public employee’s First Amendment retaliation claim.
Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998).
        56 608 F.3d 540, 542 (9th Cir. 2010). The Ninth Circuit’s decision in Blair that the

school board was entitled to remove a board member from a titular position is consistent with
                                                   12
    Case: 19-20237        Document: 00515374002          Page: 13     Date Filed: 04/07/2020


                                           No. 19-20237

resolution declaring that a former council member had violated the residency
requirement and a council ordinance authorizing suit to be filed to recover the
former member’s salary. 57 Consequently, these cases are inapposite.
       The remainder of the cases relied upon by HCC involved claims against
only the individual members of a governing body. 58 As we have noted, under
Supreme Court precedent, absolute legislative immunity is a “doctrine[] that
protect[s] individuals acting within the bounds of their official duties, not the
governing bodies on which they serve.” 59 “Thus, even if the actions of the [state
agency’s] members are legislative, rather than administrative, the [state
agency] itself as a separate entity is not entitled to immunity for violation of
the [plaintiff’s] constitutional rights.” 60 Wilson has filed his claims against only
HCC, which is not entitled to legislative immunity from Wilson’s § 1983 suit.
       Lastly, HCC argues that Wilson’s conclusory statements that he suffered
emotional harm are insufficient support for mental anguish damages. “To
survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed
factual allegations,’ but must provide the plaintiff’s grounds for entitlement to
relief—including factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” 61 As explained, Wilson has alleged


our decision in Rash-Aldridge that an elected official does not have a fundamental right to
an appointed leadership position. 96 F.3d at 119.
        57 34 F.3d 359, 361 (6th Cir. 1994).
        58 See Rangel v. Boehner, 785 F.3d 19, 21 (D.C. Cir. 2015) (claim by United States

congressman against fellow congressmen and other individuals for violating his
constitutional rights in issuing “a punishment of censure”); Whitener v. McWatters, 112 F.3d
740, 741 (4th Cir. 1997) (claim by county board member against fellow board members for
violating his First Amendment rights in censuring him for using abusive language); Romero-
Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir. 1996) (claim by former governor of
Puerto Rico against individual legislators for violating his constitutional rights during
legislative hearings investigating governor’s role in a political scandal).
        59 Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 133 (5th Cir. 1986); see also Owen

v. City of Independence, Missouri, 445 U.S. 622, 657 (1980).
        60 Minton, 803 F.2d at 133.
        61 Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). See also 5 Charles Alan Wright et al., FED. PRAC. &
                                                  13
    Case: 19-20237        Document: 00515374002          Page: 14     Date Filed: 04/07/2020


                                           No. 19-20237

a plausible violation of his First Amendment rights under § 1983. He contends
that, stemming from the defendant’s unlawful acts, he has suffered mental
anguish that warrants $10,000 in damages. 62 Based on the allegations set forth
in his pleadings, Wilson has alleged a plausible claim supporting mental
anguish damages. 63
                                      III. CONCLUSION
       Based on the foregoing, we REVERSE the district court’s judgment
dismissing Wilson’s complaint for lack of jurisdiction and REMAND Wilson’s
§ 1983 claim for damages for further proceedings consistent with this opinion.
Wilson’s claims for declaratory and injunctive relief are moot, as Wilson is no
longer a trustee on the Board of HCC. Therefore, we GRANT HCC’s motion for
partial dismissal of Wilson’s appeal and instruct the district court to dismiss
Wilson’s claims for declaratory and injunctive relief after remand.
       REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION; MOTION FOR PARTIAL DISMISSAL
GRANTED.




PROC. § 1202 (3d ed. 2019) (“[Rule 8(a)] requires the pleader to disclose adequate information
regarding the basis of his claim for relief as distinguished from a bare averment that he wants
relief and is entitled to it.”).
        62 Wilson will still need to support such a claim properly in order to prevail after

remand. See, e.g., Hitt v. Connell, 301 F.3d 240, 250–51 (5th Cir. 2002) (detailing the evidence
needed to support compensatory damages for mental anguish stemming from a § 1983 free
speech jury verdict).
        63 Although Wilson also seeks $10,000 in punitive damages, punitive damages are not

available against HCC. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270–71 (1981)
(holding that municipalities and other government entities are immune from punitive
damages under § 1983).
                                                  14
