     Case: 10-10409 Document: 00511474598 Page: 1 Date Filed: 05/11/2011




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

                                                 FILED
                                                                            May 11, 2011

                                       No. 10-10409                         Lyle W. Cayce
                                                                                 Clerk

GREG PORTER; MICHAEL RAMIREZ; SCOTT EVANS; STEVEN W.
JONES,

                                                   Plaintiffs - Appellees
v.

GUADALUPE VALDEZ; JESSE FLORES,

                                                   Defendants - Appellants




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:09-CV-148


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       This interlocutory appeal challenges denial of a motion for judgment on
the pleadings in a 42 U.S.C. § 1983 action by members of a sheriff’s department
for claimed constitutional violations by Sheriff Guadalupe Valdez and Executive
Chief Deputy Jesse Flores. Sued in their individual and official capacities,
defendants contend: the individual-capacity claims are barred by qualified
immunity; and plaintiffs failed to plead sufficient facts in support of their claims


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10409

against defendants not only in their individual, but also in their official,
capacities. Jurisdiction exists only to review the qualified-immunity denial
(which concerns only the individual-capacity claims).       AFFIRMED in part;
REVERSED in part; REMANDED.
                                        I.
      Plaintiffs publically supported Sheriff Valdez’ opponent in the November
2008 Dallas County Sheriff’s election. Along that line, Senior Sergeant Greg
Porter and Deputy Michael Ramirez were reported by a Dallas newspaper as
being “the most outspoken critics of [incumbent] Sheriff . . . Valdez”. The Sheriff
was re-elected.
      Lieutenant Steven Jones, Senior Sergeant Porter, and Deputies Ramirez
and Scott Evans are long-time members of the Sheriff’s Department. Senior
Sergeant Porter has served approximately 25 years, is SWAT certified, and prior
to the election was the department’s gun range master, having previously served
16 years as a firearms instructor; Deputy Ramirez has served 28 years, prior to
the election was the department’s only motorcycle-certified deputy, and was
assigned to Sunnyvale, Texas; Deputy Evans has served 16 years, and prior to
the election was one of the department’s two dog handlers; and Lieutenant Jones
has served approximately 29 years, and prior to the election was the patrol
section lieutenant, working from 8:00 a.m to 4:30 p.m.
      Plaintiffs were also prominent members in several organizations active in
local politics:   Deputy Ramirez, as a vice president for the Greater Dallas
Chapter of the National Latino Peace Officers Association and member of the
Texas Municipal Police Association (TMPA); Senior Sergeant Porter, as
Chairman of the Dallas County Sheriff’s Association (DCSA), and a director for
TMPA; Lieutenant Jones, as an active supporter of the campaign of the Sheriff’s
opponent in the 2008 election; and Deputy Evans, as president of DCSA and a
member of TMPA.        Their political activity involved:   all plaintiffs actively
campaigned for the Sheriff’s opponent and endorsed him at a news conference;

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three plaintiffs were leaders of police organizations that endorsed that opponent;
Lieutenant Jones coordinated deputies to work off-duty at the opponent’s
campaign events; and Deputy Ramirez was quoted in a Dallas newspaper stating
his support for the opponent.
      On 12 December 2008, following the November election, Executive Chief
Deputy Flores announced the transfers of all four plaintiffs: Senior Sergeant
Porter, from day shift at the gun range to evenings in jail intake; Deputy
Ramirez, from day-patrol duty to midnight watch in jail release and duties at the
jail-information desk; Lieutenant Jones, from day shift in the patrol division to
midnight shift in jail intake; and, although Deputy Evans remained a dog
handler, to the night shift.     According to a newspaper article included by
hyperlink in the complaint, Sheriff Valdez and Executive Chief Deputy Flores
stated the “reassignments” of plaintiffs and 16 others were “an effort to
maximize training and experience for all of [the department’s] employees” and
to give “everyone . . . an equal opportunity to learn and grow within the
department”.
      Believing the transfers were in retaliation for their above-described
political activities, plaintiffs retained counsel, who by 6 January 2009 letter
advised the Sheriff of relevant law and requested that plaintiffs be returned to
their previous assignments. Receiving no response, plaintiffs filed this civil-
rights action on 29 January 2009. Plaintiffs claimed defendants’ actions, in their
individual and official capacities, constituted: First Amendment retaliation
(through the Fourteenth Amendment); and, in violation of the Fourteenth
Amendment, denial of due process of law, on both procedural and substantive
grounds, and of equal protection of the law. Plaintiffs conceded at oral argument
here that they seek the same relief from any of their claims.
      Defendants filed an answer and, pursuant to Rule 12(c), moved for
judgment on the pleadings. Their motion contended: qualified immunity barred
plaintiffs’ claims against them in their individual capacities; and plaintiffs failed

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to provide the requisite well-pleaded facts for their claims against defendants in
their individual and official capacities.
      Pursuant to Federal Rule of Civil Procedure 7(a)(7), the court ordered a
reply to the answer. The reply was to respond to defendants’ qualified-immunity
defense. The reply, however, addressed only retaliation.
      The district court ruled:     qualified immunity barred Deputy Evans’
individual-capacity, First Amendment retaliation claim; he generally failed to
state a First Amendment claim entitling him to relief, thus his official-capacity
claim in that regard also failed; and the remainder of the Rule 12(c) motion was
denied. Porter v. Valdez, No. 10-10409 (N.D. Tex. 25 Mar. 2010) (order granting
in part and denying in part motion for judgment on the pleadings). Other than
for Deputy Evans, the district court did not address plaintiffs’ official-capacity
claims, ruling that, by pleading facts sufficient to overcome qualified immunity,
plaintiffs had also stated a claim upon which relief may be granted. Id. at 7 n.3.
                                        II.
      In this interlocutory appeal, defendants maintain: plaintiffs’ individual-
capacity claims are barred by qualified immunity; and they failed to allege well-
pleaded facts that would permit valid retaliation, equal-protection, and due-
process claims, including against them in their official capacities. In short,
defendants are appealing more than the qualified-immunity denial.
      A qualified-immunity denial, to the extent it turns on a matter of law, “is
an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment”. Mitchell v. Forsyth, 472 U.S.
511, 530 (1985); see also Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).
Because qualified immunity is immunity from suit, it includes, inter alia,
protection from burdens of discovery. “Such appellate review is premised upon
the reality that, in some instances, if an order is not reviewed before the
issuance of a final judgment, the practicality of reviewing that order is lost.”
Hill v. City of Seven Points, No. 00-41436, 2002 WL 243261, at *4 (5th Cir. 17

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Jan. 2002) (citing Mitchell, 472 U.S. at 525). This jurisdiction includes appeals
from denials of qualified immunity claimed in Rule 12(c) motions. Giardina v.
Lawrence, No. 09-30437, 2009 WL 4572837, at *1 (5th Cir. 7 Dec. 2009). On the
other hand, an interlocutory appeal is not permitted from the denial of Rule 12(c)
motions simply claiming a failure to plead sufficiently. See, e.g., Johnson v.
Johnson, 385 F.3d 503, 528-29 (5th Cir. 1999) (reviewing summary judgment
motion on interlocutory appeal).
      Denial of a Rule 12(c) motion is reviewed de novo, accepting the
complaint’s well-pleaded facts as true and viewing them in the light most
favorable to plaintiff. E.g., In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007). To withstand a Rule 12(c) motion, a complaint must provide
sufficient facts “to state a claim to relief that is plausible on its face”. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and internal quotation marks
omitted).     Rulings on Rule 12(c) motions are reviewed using the same
considerations as for reviewing rulings on Rule 12(b)(6) motions (failure to state
claim). E.g., Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). This
inquiry focuses on the allegations in the complaint, not whether plaintiffs have
pleaded sufficient facts to succeed on the merits.         E.g., Ackerson v. Bean
Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009).
                                         A.
      Regarding issues that can be considered in this interlocutory appeal,
defendants claim, inter alia, that the claims against them in their individual and
official capacities are so intertwined that we have jurisdiction also to review the
rulings on the official-capacity claims. Of course, qualified immunity may not
be asserted for claims against defendants in such capacity; thus, our court is
normally without jurisdiction to consider official-capacity claims on interlocutory
review. E.g., Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392-93 (5th
Cir. 2000).



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      On this record, we lack jurisdiction regarding those claims. They are not
so intertwined that this might be an exception to the rule against interlocutory
appeals for them because, among other things, other factors and elements are
at play than for claims against defendants in their individual capacities.
                                         B.
      Therefore, we turn to defendants’ contentions concerning qualified
immunity for the individual-capacity claims.         For the reasons that follow,
defendants are not entitled to qualified immunity for the retaliation and due-
process claims; they are entitled to it for the equal-protection claim.
      Qualified immunity serves to ensure government employees are not
impeded from their public work to defend frivolous actions. See generally Babb
v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). It is an immunity born of freedom
from suit, rather than simply a defense to liability. Del A. v. Edwards, 855 F.2d
1148, 1150 (5th Cir. 1988). Therefore, through qualified immunity, government
officials conducting discretionary functions “are shielded from liability for civil
damages insofar as their conduct does not [1] violate clearly established
statutory or constitutional rights [2] of which a reasonable person would have
known”. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, qualified-
immunity analysis is based upon two, well-established prongs: (1) whether
plaintiffs show violation of a clearly-established statutory or constitutional right;
and, if so, (2) whether they show defendants’ actions were “objectively
[un]reasonable in light of clearly established law”. Nunez v. Simms, 341 F.3d
385, 387 (5th Cir. 2003).
      Qualified immunity can be asserted, of course, at different points in an
action. Because, in this action, it is asserted in response to the complaint, by a
Rule 12(c) motion, as opposed, for example, to asserting it through a summary-
judgment motion or at trial, there is, of course, no discovery or evidence on which
to base the two-prong analysis. Instead, the analysis for either prong must be
limited to the facts alleged in the complaint and the Rule 7 reply. As a result,

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review of defendants’ qualified-immunity assertion requires review of the
sufficiency of plaintiffs’ complaint because, as shown above, whether a sufficient
claim is pleaded is “both inextricably intertwined with and, directly implicated
by, the qualified immunity defense” asserted in response to the complaint.
Iqbal, 129 S. Ct. at 1946-47 (citations and internal quotations marks omitted).
                                        1.
      Plaintiffs contend they sufficiently pleaded a violation of the First
Amendment because their transfers were adverse employment actions, made in
retaliation for a constitutionally-protected activity—political speech. Defendants
counter that this claim is barred by qualified immunity because the law was not
clearly established; and, in that regard, plaintiffs failed to plead facts for a
plausible claim of First Amendment retaliation. For the latter, defendants
assert that the district court erred by permitting conclusory statements to suffice
for well-pleaded facts. Defendants contend, in the alternative: assuming the
First Amendment claim was sufficiently pleaded, plaintiffs did not sufficiently
plead, for prong-two purposes, that the transfers were objectively unreasonable
under clearly-established law.
                                        a.
                                        i.
       Defendants maintain erroneously that the law is unsettled concerning
whether a lateral transfer can be an “adverse employment action”, especially
here, because, as plaintiffs conceded in their Rule 7 reply, they received neither
reduction in rank nor decrease in salary or benefits. “To be equivalent to a
demotion, [however,] a transfer need not result in a decrease in pay, title, or
grade; it can be a demotion if the new position proves objectively worse—such
as being less prestigious or less interesting or providing less room for
advancement.” Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999)
(citing Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996)).



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                                        ii.
      Equally unavailing is the contention that plaintiffs failed to plead
sufficient facts for their retaliation claim. A complaint must contain enough
facts “to raise a reasonable expectation that discovery will reveal evidence of [the
claim or element]”. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). For a
cognizable retaliation claim, plaintiffs must allege: (1) they suffered an adverse
employment action; (2) they were engaged in protected activity; and (3) there
was a causal connection between the two. E.g., Jordan v. Ector Cnty., 516 F.3d
290, 295 (5th Cir. 2008).
      Plaintiffs alleged: they had obtained seniority within the department; it
operates on a seniority system that allows them a choice in assignment; they
possessed positions of seniority and prestige within it prior to Sheriff Valdez’ re-
election; they were outspoken supporters of the Sheriff’s political opponent; the
Sheriff and Executive Chief Deputy knew of plaintiffs’ political activities,
observing them in support of the Sheriff’s opponent at campaign events; and,
within 40 days after the election, the Sheriff and Executive Chief Deputy
ordered plaintiffs transferred to other positions perceived as being less
prestigious, less interesting, and having worse hours than before.
      Considering the alleged facts in the requisite light most favorable to
plaintiffs, they sufficiently pleaded a First Amendment retaliation claim. It is
plausible that:    they were subject to an adverse employment action; by
participating in campaign activities, they engaged in protected speech; and a
causal nexus exists for a First Amendment retaliation claim, given their
transfers occurred shortly after the Sheriff’s re-election. For the latter element,
“[c]lose timing between an employee’s protected activity and an adverse action
against him may provide the causal connection required to make out a prima
facie case of retaliation”. Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188
(5th Cir. 1997) (citation and internal quotation marks omitted).



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                                         b.
      As discussed supra, under the second prong of our qualified-immunity
analysis, we must determine whether plaintiffs showed defendants’ conduct was
“objectively [un]reasonable in light of clearly established law”. Nunez, 341 F.3d
at 387. To succeed on this prong in response to a Rule 12(c) motion, plaintiffs
must allege facts sufficient to show that no reasonable officer could have viewed
his actions were proper. Babb, 33 F.3d at 477. Again, “the objective legal
reasonableness of an officer’s conduct must be assessed in light of the legal rules
that were clearly established at the time of his action”. Manis v. Lawson, 585
F.3d 839, 846 (5th Cir. 2009) (citation and internal quotation marks omitted).
      Plaintiffs contend the transfers were objectively unreasonable in the light
of clearly-established law because defendants “removed uniquely qualified,
veteran employees . . . and placed them in positions normally set aside for those
with less experience”.     Defendants only assert a lack of clarity in the law
concerning adverse employment actions. For the reasons stated supra, existing,
relevant law was clear at the time of those actions; therefore, pursuant to the
facts as alleged, it is plausible that no reasonable officer could have believed his
actions were reasonable.
                                         2.
      Plaintiffs conceded at oral argument here that their equal-protection claim
is simply their First Amendment retaliation claim under a different title and
was made as part of their “shotgun approach” to claims against defendants.
Plaintiffs attempt to create their own equal-protection classification, founded
solely on their exercise of First Amendment protected speech. Plaintiffs failed
to allege facts for an equal-protection claim in the light of: protected speech
being an individual right; their failure to identify similarly treated individuals;
and, in particular, their concession at oral argument. Thompson v. City of
Starkville, 901 F.2d 456, 468 (5th Cir. 1990) (holding plaintiff fails to state an
equal-protection claim when it is a restatement of a First Amendment claim).

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      Because the equal-protection claim is simply a restatement of the
retaliation claim, we need not address defendants’ contentions contesting a
class-of-one claim. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 608-09
(2008) (holding class-of-one, equal-protection claim not cognizable in public
employment context). Similarly, because the facts alleged in the complaint fail
to provide a plausible equal-protection claim, we need not address the second
prong (defendants’ objective reasonableness) for qualified-immunity analysis.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (“A court may rely on
either prong of the defense in its analysis.”).
                                        3.
      Last, plaintiffs claim the transfers constituted a deprivation of their
property rights without procedural and substantive due process of law.
Defendants counter: the transfers did not constitute a deprivation of property;
and the due-process claim is barred because plaintiffs failed to exhaust the
department’s administrative procedures.
                                        a.
      Although the complaint presents a due-process claim “predicated on both
procedural and substantive due process”, plaintiffs fail to address the procedural
due-process issue in their brief. In any event, their claim hinges upon their
having a property interest in continued public employment. See, e.g., Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 n.3, 542 (1985) (procedural due-
process claim under § 1983 requires showing deprivation without due process of
life, liberty, or property interest); Moulton v. City of Beaumont, 991 F.2d 227,
230 (5th Cir. 1993) (substantive due-process claim requires showing arbitrary
or capricious termination of constitutionally-protected property interest in
employment).
      “The Constitution does not create property interests . . . and [plaintiffs]
therefore look to Texas law for the creation of a property interest that will
support their claim to due process rights.” Garcia v. Reeves County, 32 F.3d 200,

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203 (5th Cir. 1994) (internal citation omitted).        Public employees enjoy a
property right in continued employment, if their at-will status has been modified
by state or local law. Schaper v. City of Huntsville, 813 F.2d 709, 717 (5th Cir.
1987). “[W]hen a Texas city government adopts a personnel procedure which
includes a ‘just cause’ provision, the city employees’ at-will status is modified,
and they enjoy a property interest in continued employment”. Garcia, 32 F.3d
at 203 (citing Schaper, 813 F.2d at 713-14).
      The department’s personnel policies include such a provision, having
adopted its civil service system pursuant to Chapter 158 of the Texas Local
Government Code, see generally D ALLAS C OUNTY, T EXAS, C ODE app. A; and,
plaintiffs have not been specifically exempted from that system. Texas Local
Government Code § 85.003(c) provides: “a deputy serves at the pleasure of the
sheriff”; however, “[a] deputy who is included in the coverage of a civil service
system created under Chapter 158 may be suspended or removed only for a
violation of a civil service rule adopted under that system”. T EX. L OC. G OVT.
C ODE A NN. § 85.003(c), (f).    Arguably, plaintiffs have sufficiently alleged a
protected property interest in continued employment.
                                         b.
      In any event, as noted, defendants contend that plaintiffs did not state a
claim, for both procedural and substantive due process, because they failed to
allege facts that they utilized their administrative remedies before pursuing
their due-process claim. We decline to address this contention because it is
raised for the first time on appeal. E.g., Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
                                        III.
      For the foregoing reasons, we lack jurisdiction to address the Rule 12(c)
order insofar as it pertains to plaintiffs’ official-capacity claims; that part of the
Rule 12(c) order addressing qualified immunity is AFFIRMED IN PART (for the
individual-capacity retaliation and due-process claims) and REVERSED IN

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PART (for the individual-capacity equal-protection claim); and this matter is
REMANDED for further proceedings consistent with this opinion.




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