     Case: 16-20440   Document: 00514532868     Page: 1   Date Filed: 06/28/2018




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

                                                                       FILED
                                 No. 16-20440                      June 28, 2018
                                                                  Lyle W. Cayce
DAVID SIMS,                                                            Clerk


             Plaintiff - Appellant

v.

CITY OF MADISONVILLE; MADISONVILLE POLICE DEPARTMENT;
JEFFERY COVINGTON,

             Defendants - Appellees




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


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
      David Sims, a former officer with the Madisonville Police Department
(MPD), sued the City of Madisonville, Texas (the City), 1 and his former
supervisor, Sergeant Jeffrey Covington, under 42 U.S.C. § 1983, alleging that
he was terminated after reporting acts of misconduct by Covington in violation
of his First and Fourteenth Amendment rights. The district court granted
summary judgment in favor of the City on the grounds of res judicata, and later
granted summary judgment in favor of Covington based on qualified


      1  Although Sims initially pleaded allegations against the City and the MPD
separately, they are not discrete juridical entities.
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                                  No. 16-20440
immunity. Sims appeals those judgments as well as several of the court’s
preliminary rulings.
                                       I
      David Sims was a police officer with the MPD from 2004 until 2012,
when he was terminated. Prior to his termination, Sims had reported up the
chain of command that his supervisor, Sergeant Jeffrey Covington, solicited
help from other officers in planting drugs on Covington’s wife during a custody
battle over their two children.    Sims had previously attempted to report
Covington’s misconduct to Police Chief Claude May in October 2011, but Chief
May dismissed the allegations at the time. In June 2012, Sims discovered
audio recordings on Covington’s computer in which Covington could be heard
asking another officer to help him plant the drugs.          Sims accessed the
recordings a second time, saved the files to a CD, and gave the CD to a Texas
Ranger investigating Covington on other matters. In July 2012, Sims, having
learned from another officer that Covington was investigating him, searched
the network computer and found Covington’s investigative file, which
contained “notes on Sims, unauthorized GPS tracking data and camera video”
pertaining to Sims.
      On July 24, Sims overslept and missed an appearance in Municipal
Court. The next day, Sims met with Chief May and Covington and was placed
on probation for allegedly failing to appear in Municipal Court on several
occasions.   At that meeting, Sims possessed typed notes rebutting the
allegations he found in Covington’s investigative file. Covington and Chief
May noticed the notes and contacted City Manager Danny Singletary. At some
point following that meeting, Chief May and Singletary contacted AgniTEK
Technology Solutions to investigate whether Sims had accessed Covington’s
files without authorization. AgniTEK ultimately concluded that there had
been a computer breach and that it originated from Sims’s computer. On July
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                                 No. 16-20440
27, Sims was called into Chief May’s office and terminated for violating the
MPD’s Computer Use Agreement.           After Sims was terminated, Ranger
Stephen Jeter investigated whether Sims accessed confidential files on
Covington’s computer, and Sims was eventually indicted for computer security
breach, a felony under Texas law. The charges were later dismissed “in the
interest of justice.” Covington was ultimately indicted and convicted of charges
related to framing his wife, and he voluntarily resigned from the MPD.
      On July 14, 2014, Sims sued the City in state court, alleging claims under
the Texas Whistleblower Act. The City filed a plea to the jurisdiction, and the
state court granted that plea, dismissing Sims’s state court claims with
prejudice. While the state court case was pending, Sims sued the City and
Covington in federal court under 42 U.S.C. § 1983, alleging a conspiracy to
violate his First and Fourteenth Amendment rights. The City and Covington
moved for summary judgment based on the preclusive effect of the state court’s
dismissal. The district court granted the City’s motion for summary judgment
on res judicata grounds, but denied Covington’s motion, concluding that
Covington was not a party to the state court action and failed to establish
privity. Covington later brought a second motion for summary judgment on
the basis of qualified immunity. After significant motion practice, the district
court granted Covington’s motion for summary judgment. Sims appeals those
judgments.
                                       II
      We review a district court’s grant of summary judgment de novo. Howell
v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016). Summary judgment is
appropriate where, construing the evidence in the light most favorable to the
non-moving party, “there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (quoting FED. R. CIV. P. 56(a)). A genuine dispute of material
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                                       No. 16-20440
fact exists when the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736
F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
                                             III
       We first address the individual liability claims brought against
Covington. Sims argues that Covington violated the First Amendment by
retaliating against him for engaging in protected speech when he reported
Covington’s misconduct. He also alleges that Covington violated his clearly
established due process rights by depriving him of a property interest in
continued employment with the MPD and liberty interests in a name-clearing
hearing and in being free from criminal indictment and arrest based on false
evidence. Sims also contends that Covington conspired with others to deprive
him of these rights. 2
                                              A
           On the First Amendment retaliation claim, the district court granted
summary judgment on the basis of qualified immunity. It cited our recent
holding in Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015), that the law is
“unsettled . . . whether someone who is not a final decisionmaker and makes a
recommendation that leads to the plaintiff being harmed can be liable for
retaliation.” Id. at 627. Covington did not have the authority to terminate



       2  Sims challenges a number of administrative rulings connected to the summary
judgment motion including the district court’s refusal to strike Covington’s declaration, the
200-page limit it imposed on his response to the summary judgment motion, and its rejection
of his late request to file a surreply. We find no abuse of discretion in any of these rulings.
Sims had ample opportunity to litigate the summary judgment motion, and the district court
accommodated Sims in granting a number of extensions of time. Most importantly, Sims
does not identify how the challenged aspects of Covington’s declaration or the additional
summary judgment evidence he wanted to include could overcome any of the primarily legal
obstacles to his claims that resulted in the grant of summary judgment.
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                                     No. 16-20440
Sims; Chief May, who was not sued, did. 3                   Unsettled liability for a
nondecisionmaker like Covington would entitle him to a qualified immunity
defense because public officials are subject to section 1983 liability only if their
actions “were objectively unreasonable in light of clearly established law at the
time of the violation.” Cowart v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016).
       But we are getting ahead of ourselves. Qualified immunity is a two-step
process.    The first asks whether the defendant violated the plaintiff’s
constitutional rights. The second step adds the protection for the defendant
that liability attaches only if the right was clearly established. Id. We now
have discretion to skip the first inquiry and resolve a case solely on clearly
established grounds. Pearson v. Callahan, 555 U.S. 223, 240 (2009). Yet in
overruling the short-lived regime of Saucier v. Katz, 533 U.S. 194, 200 (2001),
which required courts to first address the underlying constitutional question,
Pearson recognized it would still “often [be] advantageous” to follow the two-
step order. 555 U.S. at 242. Doing so is “beneficial” here for reasons the
Supreme Court recognized. Id. at 236. This is the fourth time in three years
that an appeal has presented the question whether someone who is not a final
decisionmaker can be liable for First Amendment retaliation. Pennypacker v.
City of Pearl, 689 F. App’x 332, 332 (5th Cir. 2017) (dismissing retaliation claim
because liability for individual defendants was not clearly established); Howell,
827 F.3d at 526 (affirming dismissal of retaliation claim on different ground
when district court dismissed based on belief “a non-final decision maker may
not be held liable for First Amendment retaliation claims brought under



      3  Sims contends that Covington had the express authority to discipline and terminate
employees and that, in his case, Covington exercised that authority by making “the ultimate
decisions and provid[ing] the false grounds and conclusions that caused them.” But under
city law and departmental policy, a mid-level Sergeant like Covington may make a
disciplinary recommendation, but only the Chief of Police and City Manager have the
authority to terminate an employee.
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                                  No. 16-20440
§ 1983”); Culbertson, 790 F.3d at 627 (dismissing retaliation claim because
liability for individual defendants was not clearly established). Continuing to
resolve the question at the clearly established step means the law will never
get established. Pearson, 555 U.S. at 236 (“[T]he Saucier Court was certainly
correct in noting that the two-step procedure promotes the development of
constitutional precedent.”).   Addressing the first-step liability question is
“especially valuable with respect to questions that do not frequently arise in
cases in which a qualified immunity defense is unavailable.” Id. That is the
case here.   First Amendment retaliation claims do not arise in criminal
litigation (as, for example, a Fourth Amendment claim often would), and this
issue of individual liability would not arise in other civil suits, such as those
against a municipality, in which qualified immunity does not apply. Because
this is a question unique to section 1983 First Amendment claims brought
against individual defendants, we conclude that clarifying the liability
question is important to provide guidance to public employees who may find
themselves on either side of the “v” in these lawsuits that can raise important
issues of whether employees who challenge corrupt governmental practices are
protected in exercising First Amendment rights.
      In our recent decision resolving this question on “clearly established”
grounds, we recognized the tension in our caselaw on whether only final
decisionmakers can be individually liable for First Amendment retaliation
claims. Culbertson, 790 F.3d at 627. Culbertson noted that our first case to
address the issue “required only that a plaintiff show ‘an affirmative causal
link’ between a school principal’s recommendation to reassign an athletic
director and the school district’s decision to do so.” Id. at 626 (quoting Jett v.
Dallas Indep. Sch. Dist., 798 F.2d 748, 758 (5th Cir. 1986), aff’d in part,
remanded in part on other grounds, 491 U.S. 701 (1989)). “In Jett, it did not
matter that the individual defendant had no authority to make the actual
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                                  No. 16-20440
transfer decision.” Id. As our earliest decision addressing this question, Jett
controls. EEOC v. LHC Group, Inc., 773 F.3d 688, 695 (5th Cir. 2014) (applying
the “rule of orderliness” to identify which case among conflicting decisions
controlled).
      Jett also has the virtue of being right. As numerous courts of appeals
have recognized, individual liability for a government official who violates
constitutional rights, including First Amendment ones, turns on traditional
tort principles of “but-for” causation. See, e.g., Tejada-Batista v. Morales, 424
F.3d 97, 101–02 (1st Cir. 2005) (Boudin, J.). If an individual defendant’s
animus against a coworker’s exercise of First Amendment rights is a link in
the causal chain that leads to a plaintiff’s firing, the individual may be liable
even if she is not the final decisionmaker. See, e.g., id. at 102 (affirming jury
verdict against subordinate law enforcement officers whose retaliation led to
plaintiff's discharge and joining three other circuits in finding that a “properly
motivated” decision-maker does not “insulate[] the ill-motivated subordinate .
. . if the [subordinate] is a but-for cause of the firing”); Maestas v. Segura, 416
F.3d 1182, 1191 (10th Cir. 2005) (“While Segura made the final decision to
transfer Plaintiffs, Pratt, though a subordinate, might be liable if he possessed
a retaliatory motive which set in motion the events that ultimately led to
Plaintiffs’ transfers.”); Strahan v. Kirkland, 287 F.3d 821, 826 (9th Cir. 2002)
(“Even if the ultimate decision-maker can establish that the adverse action was
not in retaliation for protected conduct, a subordinate with a retaliatory motive
can be liable ‘if an improper motive sets in motion the events that lead to
termination that would not otherwise occur.’”); Darnell v. Ford, 903 F.2d 556,
561–62 (8th Cir. 1990) (affirming jury verdict against defendant, a subordinate
Patrol Major who investigated the conduct of and recommended the demotion
of a captain, for violating the captain’s First Amendment right of
association); Saye v. St. Vrain Valley Sch. Dist., 785 F.2d 862, 867 (10th Cir.
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1986) (holding that retaliatory animus by school principal against plaintiff’s
protected union activities could be “motivating factor” for plaintiff’s dismissal
even though “none of the school board members who voted not to renew Saye’s
employment were aware of her union involvement”).
      In light of Jett and the consensus view of other courts of appeals that
individual liability is just a matter of causation, why did uncertainty develop
in our circuit on this point? Beattie v. Madison County School District, 254
F.3d 595 (5th Cir. 2001), unwittingly planted the seeds of confusion that later
sprouted on this issue. A school secretary brought suit alleging she was fired
for opposing the superintendent’s reelection. Id. at 599. Although she first
sued not just the school district but also the superintendent and principal in
their individual capacity, by the appeal she had abandoned claims against the
individuals. Id. at 601 n.5. So the focus of the appeal was on the question of
municipal liability, which attaches only if final decisionmakers are liable. Id.
at 602 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)).           The
unconstitutional     motives   of   the   principal   and    superintendent    who
recommended the termination were not attributed to the school board that
made the final decision because the board did not know about the plaintiff’s
First Amendment activity. Id. at 603–04.
      Not recognizing that Beattie was only confronting Monell liability, a later
case involving individual defendants read Beattie for the principle that “only
final decision-makers may be held liable for First Amendment retaliation
employment discrimination under § 1983.” Johnson v. Louisiana, 369 F.3d
826, 831 (5th Cir. 2004). In reversing a verdict against a supervisor who
retaliated against a subordinate for complaining about sexual harassment,
Johnson ignored Jett’s contrary and precedential position that an individual is
liable for First Amendment retaliation if her unlawful conduct is a link in the
causal chain that resulted in the plaintiff’s firing. Some cases have followed
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                                 No. 16-20440
Johnson’s categorical view that only final decisionmakers can be liable for First
Amendment retaliation. See, e.g., Huggins v. Holmes, 2018 WL 343855, at *7
(W.D. La. Jan. 8, 2018).
      Other cases following Beattie and Johnson have imposed a causation
standard that is more stringent than Jett’s “but-for” standard for nonfinal
decisionmakers. See, e.g., DePree v. Saunders, 588 F.3d 282, 288 (5th Cir.
2009); Whiting v. Univ. of S. Miss., 451 F.3d 339, 351 (5th Cir. 2006). They
have done so because they, like Sims, have mistakenly characterized the
question as whether the nondecisionmaker can be liable under a cat’s paw
theory of imputed liability. That turns cat’s paw liability on its head, and is
another example of relying on the law of employer liability for a question of
employee liability. As “cat’s paw” liability arose under Title VII in which only
employers can be liable, it is not about the liability of individual employees.
See Staub v. Proctor Hosp., 562 U.S. 411, 415–16 (2011); Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.). It is instead about whether the
employers who are subject to Title VII liability can be held liable by imputing
to those entities the unlawful motives of employees who are not final
decisionmakers. Staub, 562 U.S. at 418. Unlike Title VII, section 1983 applies
to individuals. So the question is not whether the metaphorical paw (the City)
is liable for carrying out the ill-motivated actions of the metaphorical cat
(Covington); it is whether the cat itself can be liable for having unlawful
motives that caused the firing. That individual liability turns on traditional
tort principles of whether the particular act was a “causal link” in the
termination. Jett, 798 F.2d at 758; Maestas, 416 F.3d at 1191 (characterizing
the question as whether the defendant “set in motion” the termination).
      Beattie, Johnson, and subsequent cases thus inadvertently created the
uncertainty we have recognized in this area. We now provide the overdue
clarification. Because it is at odds with our earlier holding in Jett, Johnson’s
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                                       No. 16-20440
absolute bar on First Amendment liability for those who are not final
decisionmakers is not binding. Nor are the imputation principles of cat’s paw
liability applicable to an effort to hold a nondecisionmaker liable. Jett’s “causal
link” standard sets the causation requirement for a suit against an individual
defendant with retaliatory motives who does not make the final employment
decision.
       Although today’s decision clarifying that Jett controls means the law
will no longer be “unsettled” in this area, Culbertson, 790 F.3d at 627, it
provides no recourse to Sims. That is because of the second part of the qualified
immunity inquiry, which requires a plaintiff to show that any violation of
rights was clearly established at the time the conduct occurred. 4 When Sims
was terminated in July 2012 the inconsistency in our law on whether First
Amendment liability can attach to a public official who did not make the final
employment decision had not been resolved. Indeed, three years after that
Culbertson recognized the tension in affirming a grant of summary judgment
on qualified immunity grounds in favor of a defendant who made a
recommendation to fire the plaintiff but did not have the authority to make the
ultimate decision. Id. at 608. If judges have mixed up principles of individual
and municipal liability in this area and failed to recognize Jett as the
controlling decision, law enforcement officials should not be expected to have a
more nuanced understanding of section 1983 law. We therefore agree with the
district court’s holding that Sims’s claim is foreclosed by Culbertson on
immunity grounds.



       4 To ultimately establish a First Amendment violation Sims would also have to
overcome other issues Covington raises but that the district court did not need to address,
such as whether Sims was speaking as part of his official duties or as a citizen. See Garcetti
v. Ceballos, 547 U.S. 410 (2006). We do not address Garcetti because we affirm the grant of
summary judgment on the ground the district court relied on: it was not clearly established
in 2012 that a non-final decisionmaker could be liable for First Amendment retaliation.
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                                             B
       Sims next challenges the district court’s dismissal of his due process
claims against Covington.
                                              1
       To establish a Fourteenth Amendment procedural due process claim, “a
plaintiff must first identify a protected life, liberty or property interest and
then prove that governmental action resulted in deprivation of that interest.”
Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). Sims alleges that
Covington violated his property interest in continued employment by not
following the procedures set forth in Texas Government Code § 614.023(c)
before terminating him. 5 The district court concluded this claim was foreclosed
by Stem v. Gomez, 813 F.3d 205 (5th Cir. 2016), which held that
section 614.023(c) does not create a property interest in continued employment
that implicates the Due Process Clause. The court further concluded that
“even if Sims could distinguish Stem, which he [could not],” the Texas Courts
of Appeals were split over whether the state statute creates a property interest;
therefore, the property right was not clearly established when Sims was fired
in 2012, and Covington was entitled to qualified immunity.
       Sims argues that under section 614.023(c) he should not have been
terminated for alleged misconduct without notice, an investigation, and a
finding of evidence proving the alleged misconduct. In Stem, we interpreted
section 614.023(c) as a way to “assure[] that an officer against whom a
complaint is filed understands the allegations against him and receives a



       5 Texas Government Code § 614.023(c) sets out procedures to be followed when a
complaint is made against a law enforcement officer: “In addition to [providing the officer
with a signed complaint within a reasonable time after the complaint is filed], the officer or
employee may not be indefinitely suspended or terminated from employment based on the
subject matter of the complaint unless (1) the complaint is investigated; and (2) there is
evidence to prove the allegation of misconduct.” TEX. GOV’T CODE § 614.023(c).
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meaningful investigation into the accuracy of those allegations,” but
conclusively held that the statute alone does not create a constitutionally-
recognized property interest in continued employment. 813 F.3d at 213. In
reaching our decision, we noted that there was no authoritative decision from
the Supreme Court of Texas, that there was a split among the state’s
intermediate courts, and that the legislation was not aimed at abrogating the
right to terminate at will. Id.
       Sims further asserts that Stem does not foreclose his claim because,
unlike in that case, the MPD fully incorporated the provisions of
section 614.023(c) into its policies. 6 Stem acknowledged that section 614.023(c)
can confer a property interest if an employer expressly adopts the statute into
its policies. Id. at 211 (citing Turner v. Perry, 278 S.W.3d 806, 822 & n.21 (Tex.
App. 2009)). While MPD’s policies appear to include parallel processes for
investigating a complaint against an officer, they do not “expressly adopt[]”
section 614.023(c). Turner, 278 S.W.3d at 822 & n.21. Accordingly, MPD’s
policies do not confer a property interest through incorporation. Thus, we
agree that Sims’s argument is foreclosed by Stem, and we affirm the district
court’s holding.
                                             2
       When a person’s good name, reputation, honor, or integrity is at stake
due to an action by the government, he is entitled to notice and an opportunity
to be heard.       Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).                 “A
constitutionally protected liberty interest is implicated only if an employee is
discharged in a manner that creates a false and defamatory impression about
him and thus stigmatizes him and forecloses him from other employment

       6 Sims points to two specific policies. General Order No. 300-04 “set[s] forth
procedures for receiving, investigating, and classifying complaints against employees of the
police department.”     General Order No. 300-07 “provide[s] guidelines for Internal
Investigations.”
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opportunities.”      White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981).                      A
deprivation of liberty claim lies against the government employer, not a
government employee or official. Harris v. City of Balch Springs, 9 F. Supp.
3d 690, 700 (N.D. Tex. 2014) (citing Rosenstein v. City of Dallas, 876 F.2d 392,
395 (5th Cir.1989), aff’d in relevant part, 901 F.2d 61 (5th Cir.1990) (en banc)).
       Sims’s claim against Covington is thus barred by qualified immunity
because he has failed to cite to any Supreme Court or Fifth Circuit precedent
clearly establishing that a mid-level supervisor violates an employee’s due
process rights when the municipal department he works for does not grant a
name-clearing hearing. In other words, Sims has not shown that Covington
had the legal authority to grant a name-clearing hearing in the first place, let
alone that Covington played a role in depriving him of such a hearing. 7 See
Caleb v. Grier, 598 F. App’x 227, 239 (5th Cir. 2015) (finding that the plaintiff
failed to state a claim where she alleged no facts indicating that the defendants
“had any ability, authority, or even influence to deny her access to a name-
clearing hearing, much less that they did so.”). See also McDonald v. Wise, 769
F.3d 1202, 1215–16 (10th Cir. 2014) (citing Rosenstein, 876 F.2d at 397)
(finding defendant was in no position to provide a name-clearing hearing and
was therefore entitled to qualified immunity). Accordingly, we affirm the
district court’s judgment on this issue.




       7 Additionally, we note that this Circuit applies a seven-element “stigma-plus-
infringement” test to determine whether § 1983 may provide a remedy for the deprivation of
liberty without opportunity to clear one’s name. Bledsoe v. City of Horn Lake, 449 F.3d 650,
653 (5th Cir. 2006). Of particular relevance, one factor requires that an employee
affirmatively request a name-clearing hearing. Id.; see also Rosenstein v. City of Dallas, Tex.,
901 F.2d 61, 61 (5th Cir. 1990) (en banc). Sims argues that he made his desire to clear his
name plain by rebutting each of Covington’s reasons for disciplining him. However, as Sims
concedes in his briefs on appeal, he did not ask Covington for a hearing, and his argument
therefore fails under our stigma-plus-infringement test. Rosenstein, 901 F.2d at 61.
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                                        3
      Sims next argues that Covington violated his protected liberty interest
“in being free from criminal indictment and arrest based on falsified and
fabricated evidence.” The district court declined to consider this claim. It
concluded that “to the extent Sims’s summary judgment response asserts a
malicious-prosecution    claim    and   a    liberty-deprivation   claim   against
Covington, based on his involvement in Sims’s prosecution for ‘computer
security breach,’” he failed to raise those theories in his first amended
complaint and could not do so for the first time on summary judgment.
      Sims contends that his first amended complaint adequately pleaded this
claim, citing the following language: “Defendant Jeffery Covington is liable for
civilly conspiring, while acting under color of law, to retaliate against Plaintiff
and/or deprive Plaintiff of constitutionally protected interests without due
process of law, and which have caused injuries and resulted in damages to the
Plaintiff.” We disagree. A properly pleaded complaint must give “fair notice
of what the claim is and the grounds upon which it rests.” Ashcroft v. Iqbal,
556 U.S. 662, 698–99 (2009). The language Sims points to offers no such notice.
Because we conclude that Sims failed to raise this claim in his complaint, we
affirm. See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th
Cir. 2005) (a claim that was not raised in the complaint, but is raised only in
response to a motion for summary judgment, is not properly before the court).
                                        C
      The district court concluded that because Sims failed to show a violation
of his clearly established constitutional rights, his underlying claim that
Covington conspired with others to violate his constitutional rights necessarily
failed. That is ordinarily the case. Mowbray v. Cameron Cty., 274 F.3d 269,
279 (5th Cir. 2001). But Sims suggests for the first time on appeal that the
“decisionmaker” issue that barred his First Amendment claim against
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                                  No. 16-20440
Covington would not be a problem for the conspiracy claim. Presumably the
idea is that Covington could have conspired with the final decisionmaker to
retaliate. Sims, however, did not present this theory in either his district court
pleadings or response to summary judgment. We will not reverse a district
court ruling based on a claim not presented to that court. Celanese Corp. v.
Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010). We therefore
affirm the grant of summary judgment on the conspiracy claim.
                                       IV
      Lastly, Sims challenges the district court’s grant of summary judgment
for the City on the grounds of res judicata. Under the Full Faith and Credit
Clause of the United States Constitution, “[a] final judgment in one state, if
rendered by a court with adjudicatory authority over the subject matter and
persons governed by the judgment, qualifies for recognition throughout the
land.” Baker v. General Motors Corp., 522 U.S. 222, 223 (1998). “A federal
court must give to a state-court judgment the same preclusive effect as would
be given that judgment under the law of the State in which the judgment was
rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
Texas’s claim preclusion law requires “(1) a prior final judgment on the merits
by a court of competent jurisdiction; (2) identity of parties or those in privity
with them; and (3) a second action based on the same claims as were raised or
could have been raised in the first action.” Norris v. Hearst Trust, 500 F.3d
454, 460–61 (5th Cir. 2007) (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996)). If all three elements are satisfied, claims that have been
finally adjudicated, or claims that arise out of the same occurrence and that
could have been litigated, are precluded by res judicata. Amstadt, 919 S.W.2d
at 652.
      Sims initially sued the City in state court under the Texas Whistleblower
Act, TEX. GOV’T CODE § 554.001, but the state court dismissed his claim with
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                                 No. 16-20440
prejudice on the basis of governmental immunity. The district court granted
the City’s motion for summary judgment, concluding that, pursuant to Texas
law, Sims’s state court action against the City barred his claims in federal
court. We agree. We have held that, under Texas law, a grant of a plea to the
jurisdiction is a dismissal on the merits for purpose of res judicata. Klein v.
Walker, No. 17-40052, 2017 WL 3879795, at *2 (5th Cir. Sept. 5, 2017) (citing
Flores v. Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 775 n.3 (5th Cir.
1984)). The first element of Texas’s preclusion law is therefore satisfied. The
second element is also satisfied because Sims sued the City in both state court
and federal court.
      As to the third element, Sims argues that, under Texas law, a decision
on the merits by a court of competent jurisdiction does not preclude him from
bringing different claims in federal court. He further argues that he could not
have raised his federal claims in state court. His arguments are unavailing.
Under Texas law, actions may arise out of the same transaction or occurrence
depending on “their relatedness in time, space, origin or motivation, and
whether, taken together, they form a convenient unit for trial purposes.”
Weaver v. Tex. Capital Bank, 660 F.3d 900, 907 (5th Cir. 2011) (quoting Getty
Oil Co. v. Ins. Co. of N.A., 845 S.W.2d 794, 799 (Tex. 1992)). Different theories
of recovery based on the same operative facts do not generate different causes
of action. Hogue v. Royse City, 939 F.2d 1249, 1253–54 (5th Cir. 1991). Sims
originally sued the City in state court, alleging a violation of the Texas
Whistleblower Act based on his termination from the MPD. His state and
federal court actions therefore arose out of the same transaction or
occurrence—his termination from the MPD—and merely advanced different
theories of recovery. Moreover, Sims could have brought his section 1983
claims in state court, but failed to do so. See Home Builders Ass’n Miss. v. City
of Madison, 143 F.3d 1006, 1013 (5th Cir. 1998) (“Federal jurisdiction over §
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                                 No. 16-20440
1983 is concurrent, not exclusive.”). Therefore, the third element of Texas’s
claim preclusion law is satisfied, and we affirm the district court’s judgment.
                                      ***
      For these reasons, we conclude that Covington was entitled to qualified
immunity on all properly pleaded claims against him, and that Sims’s claims
against the City were barred by res judicata. Accordingly, we AFFIRM.




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