Citations
- 294 F. Supp. 3d 548
Full opinion text
Sam A. Lindsay, United States District Judge
Before the court is Defendant Derick Evans's Motion for Summary Judgment (Doc. 57), filed April 26, 2017. After considering the motion, briefs, pleadings, and evidence, the court grants Defendant Derick Evans's Motion for Summary Judgment (Doc. 57) and dismisses with prejudice Plaintiff's claim against Derick Evans ("Evans") in his individual capacity based on Plaintiff Norvis Harmon's ("Plaintiff" or "Harmon") alleged right to petition or appeal the termination of his employment, whether premised on retaliation in violation of the First Amendment's Petition Clause, denial of equal protection, or violations of state and local law ("Petition Claim").
Because the court's ruling rests in part on its determination as to which claims by Plaintiff are before the court and remain after the court's March 31, 2017 memorandum opinion and order, the court addresses in detail the allegations in Plaintiff's pleadings regarding Plaintiff's Petition Claim and how this claim, which was originally pleaded as a constitutional claim involving the denial of equal protection, morphed and expanded over the course of this litigation into a constitutional claim for alleged violations of the First Amendment right to petition, and, most recently, into a claim encompassing alleged violations of Plaintiff's statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86. For the reasons herein explained, the court determines that Plaintiff's Petition Claim, brought pursuant to 42 U.S.C. § 1983, is either not properly before the court because it was not included in Plaintiff's pleadings, was abandoned by Plaintiff, or fails as a matter of law, regardless of whether it is characterized as a claim based on the denial of equal protection, retaliation in violation of the First Amendment's Petition Clause, or violations of statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86.
I. Factual and Procedural Background
Harmon brought this action against Defendants Dallas County, Texas ("Dallas County" or "the County") and former Dallas County Constable Evans (collectively, "Defendants") on June 3, 2013. Harmon was previously employed by Dallas County in Constable Office, Precinct 1, as a deputy constable. His employment was terminated on June 3, 2011. The termination of his employment is the subject of this lawsuit, as well as a prior state court action filed by Harmon and two other deputy constables against Dallas County on September 9, 2011, in the 44th Judicial District Court, Dallas County, Texas.
In the state court action, Harmon and the other plaintiffs asserted claims for alleged violations of the Texas Whistleblower Act ("TWA") and Texas Local Government Code § 617.004, and an equal protection claim for alleged violations of the Texas Constitution. On March 28, 2012, the Whistleblower claim, equal protection claim, and claim for alleged violations of Texas Government Code 617.005 brought by Harmon in the state court action were dismissed with prejudice. In this federal action, Harmon originally asserted two claims against Defendants, pursuant to 42 U.S.C. § 1983, for alleged constitutional violations based on the denial of equal protection to petition the government and retaliation in violation of his First Amendment right to free speech. In his Complaint, Harmon refers to these claims as his "Denial of Equal Protection" claim and "Free Speech Claim." Pl.'s Compl. 4, 5.
A. First Amendment "Free Speech Claim" Included in Plaintiff's Complaint
In his Complaint, Plaintiff refers to his claim against Defendants under the First Amendment for alleged retaliation as his "Free Speech Claim." Id. at 5. Regarding his Free Speech Claim, Harmon alleges in his Complaint that Defendants retaliated against him in terminating his employment in violation of his First Amendment right to speak out on matters of public concern. Specifically, Harmon contends that he was fired because he reported that Evans and the supervisors under Evans engaged in illegal conduct in requiring deputy constables, including him, to: (1) donate time and money to Evans's re-election campaign; (2) work unpaid for political allies and friends of Evans; and (3) tow citizens' vehicles after traffic stops. In addition, Plaintiff asserts that he reported Evans's illegal conduct in setting traffic citation quotas in violation of Texas Transportation Code § 720.002.
B. Denial of Equal Protection Claim Based on Right to Petition Included in Plaintiff's Complaint
In his Complaint, Plaintiff refers to his claim against Defendants for alleged violations of his "right to petition the government for redress of grievances" as his "Denial of Equal Protection" claim. Id. at 4. Regarding this claim, Harmon alleges in his Complaint that he sought to appeal the termination of his employment "through the Dallas County grievance system and by appealing to Defendant Evans[,]his department head, but his requests to appeal were refused by Defendants." Id. ¶ 23. Harmon alleges that Defendants refused to hear the appeal of his termination through the Dallas County grievance system because he was not employed as a Deputy Constable before August 19, 2003. Defendants do not dispute that Dallas County's formal grievance system applies only to deputy constables hired before August 19, 2003, and Harmon's appeal through Dallas County's formal grievance system was rejected because he was hired after August 19, 2003. Harmon contends that the right to petition the government is a fundamental right, and "the actions of Defendants [in] depriv[ing] [him] of the right to petition the government for redress of grievances, when such right is granted to other similarly situated employees [deputy constables hired before August 19, 2003], is a denial of [his] right to equal protection of law guaranteed by the U.S. Constitution." Id. ¶ 26.
C. Plaintiff's Rule 7(a) Reply
On August 7, 2013, Dallas County filed its Answer to Plaintiff's Complaint, asserting, among other things, that Plaintiff's claims against it were barred by res judicata as a result of the state court action. On March 15, 2014, Evans filed his Answer, similarly alleging that Plaintiff's claims against him were barred by res judicata, even though he was not a party to the state court action. Evans's Answer also included the defense of qualified immunity. Evans alleges that Plaintiff's claims against him are barred by qualified immunity because he did not engage in any conduct that could be "characterized as objectively unreasonable and which all officials in his circumstances would condemn as violative of Constitutional rights." Evans's Answer ¶ 5. On February 26, 2015, former United States Chief Judge Jorge A. Solis ("Judge Solis") ordered Plaintiff to file a reply under Federal Rule of Civil Procedure 7(a) (" Rule 7(a) Reply") regarding "Defendants' qualified immunity defense[ ]" by March 18, 2015, and set a deadline for dispositive motions on qualified immunity for April 17, 2015. Order 1 (Doc. 24). On March 18, 2015, Plaintiff filed his Rule 7(a) Reply (Doc. 25) as directed. In his Rule 7(a) Reply, Plaintiff alleges in pertinent part as follows:
1. ...Defendant Evans was a Texas peace officer and an elected Constable for Dallas County, Texas when he terminated Harmon for speaking out on matters of public concern. In 2013, the law was clearly established that public employees could not be terminated from their employment for speaking out on matters of public concern. As such, Defendant Evans is not entitled to prevail on his defense of qualified immunity.
30. Harmon alleges Defendant Evans had knowledge that Harmon reported Evans' illegal conduct to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel.
31. Norvis Harmon alleges his termination was a wrongful termination because Defendant Evans terminated Harmon in retaliation for Harmon's speaking to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel about Evans' illegal conduct.
32. Harmon alleges Defendant Evans' illegal conduct, including his illegal lottery to support his re-election campaign that resulted in Evans' felony conviction, were matters of public concern.
33. In 2011, every reasonable elected Constable in the State of Texas would have understood that Defendant Evans' conduct was objectively unreasonable as the law was clearly established that public employees cannot be terminated for speaking out on matters of public concern; because the law was clearly established that corruption and illegal conduct by elected officials is a matter of public concern; and because such a termination would and did violate Norvis Harmon's Constitutional rights.
34. Defendant Evans claims that Norvis Harmon was terminated due to discrepancies related to a G.P.S. system in the vehicles Harmon used to perform duties serving civil process as a deputy constable, but this purported reason is merely a pretext for Evans' illegal termination of Harmon.
35. Other similarly situated employees were permitted to explain the circumstances of the G.P.S. discrepancies and they were not terminated.
36. Still other similarly situated employees [deputy constables hired before August 19, 2003] who were permitted to explain the circumstances of the G.P.S. discrepancies in the context of a grievance process allowed by the Dallas County Civil Service system were reinstated to employment after their termination.
37. After Norvis Harmon was fired, he appealed and filed a grievance over his wrongful termination.
38. Defendant Evans illegally refused to hear Harmon's grievance over his termination, although Dallas County has claimed that all employees of Dallas County have the right to appeal terminations to their department head.
39. Defendant Evans was Norvis Harmon's department head at the time of Harmon's wrongful termination.
40. Defendant Evans had a policy and/or a regular practice to not hear grievances of employees, including grievances by deputy constables.
41. As an elected Constable, Defendant Evans was a final policy-maker regarding the grievance policy and/or practice of his office.
42. Defendant Dallas County also refused to allow Norvis Harmon to grieve his termination because Harmon was first employed as a deputy constable for Dallas County after August 19, 2003.
43. Deputy constables hired before August 19, 2003, who were otherwise similarly situated to Norvis Harmon, were allowed to grieve their terminations.
44. The sole criteria established by Defendant Dallas County to classify whether employees were allowed a grievance right was the employees['] date of hire.
45. The right to petition the government for the redress of grievances is established by the First Amendment to the U.S. Constitution and it is a fundamental right.
46. The classification by Defendant Dallas County of deputy constables into those who were allowed grievance rights and those who were denied any grievance rights is an illegal classification that amounts to a denial of equal protection.
47. The classification by Defendant Dallas County was accomplished by action of the Dallas County Commissioners Court, which is the final policymaker for Dallas County regarding the granting of grievance rights under the Dallas County Civil Service system.
48. Similarly situated employees [deputy constables hired before August 19, 2003] who were allowed to present their grievance to the Dallas Civil Service Commission were reinstated to their employment after their termination by Defendant Evans.
49. Norvis Harmon has been damaged as a result of his wrongful termination; because of Defendant Evans' refusal to hear any appeal of Harmon's wrongful termination; and as a result of his denial of grievance rights in the Dallas County Civil Service system by Defendant Dallas County.
50. Defendant Evans is not entitled to any immunity, neither in his official capacity, nor in his personal capacity for his illegal conduct of wrongfully terminating Norvis Harmon in retaliation for Harmon's exercise of his First Amendment right to speak out on a matter of public concern.
Pl.'s Rule 7(a) Reply ¶¶ 1, 30-50. Norman further alleges that "the law was clearly established that public employees could not be terminated from their employment for speaking out on matters of public concern; and it was also clearly established in 2013 that corruption and illegal acts by public officials and elected officials was a matter of public concern." Id. ¶ 3.
D. Evans's Motion for Judgment and Plaintiff's Request to Amend his Pleadings
On April 17, 2015, Evans moved, based on his defense of qualified immunity, for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) ("Motion for Judgment") on Plaintiff's First Amendment "Free Speech Claim" claim. In his response to Evans's Motion for Judgment (Doc. 27), Plaintiff sought leave to supplement his Complaint and Rule 7(a) Reply and attached as an exhibit to his response his proposed Supplement to Original Complaint and Rule 7(a) Reply, which supplements the allegations with respect to his Free Speech Claim. Evans's reply in support of his Motion for Judgment does not address Plaintiff's request to supplement his pleadings. On December 1, 2015, Judge Solis entered an order denying Evans's Motion for Judgment. Judge Solis's order does not expressly rule on or address Plaintiff's request for leave, but the order states that the court's ruling is based on the facts in Harmon's Complaint and Rule 7(a) Reply. Order 1 n.1 (Doc. 29). The order contains several citations and references to the factual allegations in "Doc. 25," which is Plaintiff's Rule 7(a) Reply, as well as "Doc. 27." As noted, "Doc. 27" is actually Plaintiff's response to the Motion for Judgment, not the proposed supplement that is attached to Plaintiff's response, but it is apparent from Judge Solis's order that his citations to "Doc. 27" refer to Plaintiff's proposed supplement (Doc. 27-1). This is the only time Plaintiff requested to amend his pleadings.
E. Partial Motions for Summary Judgment
The case was assigned to the undersigned on April 27, 2016, three days before Judge Solis retired. On July 17, 2016, although the deadline set by Judge Solis for filing dispositive motions had expired, the court granted the parties' request to file limited summary judgment motions because the parties represented that their motion would significantly narrow and streamline the issues to be tried , which was a gross overstatement as evidenced by the three lengthy opinions the court has had to write. In retrospect, the court should have never granted the parties leave, as it only opened a legal and procedural Pandora's box. In their Limited Motion for Summary Judgment (Doc. 39), Defendants contended that the two claims asserted by Plaintiff in this action based on denial of equal protection and First Amendment free speech/retaliation were barred by res judicata. Plaintiff contended in his partial summary judgment (Doc. 42) that he was entitled to judgment on his equal protection claim against Dallas County because his right to petition the government for redress of grievances is a fundamental right, and Dallas County's ordinance that limits grievance rights to deputy constables hired after August 19, 2013, denied him his right to equal protection of the laws under the United States Constitution and also violated his First Amendment right to petition the government. In support of his equal protection claim, Plaintiff contended that his claim against the County was based on the County's and Evans's conduct in terminating his employment and denying or refusing to hear his petition appealing the termination of his employment. See Pl.'s Summ. J. Br. ¶¶ 2, 21, 25 (Doc. 43).
In response to Plaintiff's summary judgment motion, Defendants asserted that Plaintiff's equal protection claim, whether based on the alleged right to petition the government or the allegedly discriminatory treatment of deputy constables, applied only to the County, not Evans, because the rule that precluded Harmon from appealing the termination of his employment was put in place by the County without input from Evans, and the denial of civil service protection to Harmon occurred because of the County rule and for no other reason. In addition to contending that Plaintiff's two claims were barred by res judicata, Defendants requested that the court treat their response to Plaintiff's summary judgment motion as a cross-motion for summary judgment in the County's favor on the equal protection claim, which the County contended could be decided as a matter of law. In his reply brief, Harmon never challenged Defendants' contention that he had only asserted two claims, one for denial of equal protection against the County based on his alleged right to petition or appeal the termination of his employment and one for retaliation in violation of his First Amendment right to free speech against both Defendants; nor did Harmon challenge Defendants' assertion that his equal protection claim was only against the County.
F. Decision to Revisit the Denial of Evans's Motion for Judgment and Submission of Supplement Briefs
On January 16, 2017, before ruling on the parties' motions for partial summary judgment, the court gave the parties notice of its decision to sua sponte revisit Judge Solis's ruling on Evans's Motion for Judgment as follows:
In reviewing the parties' motions, the court also necessarily reviewed the record in this case, including...Judge Jorge A. Solis's...December 1, 2015 order denying...Evans's Motion for Judgment..., the parties' briefs as to this motion, and Plaintiff's pleadings. In his order, it appears that Judge Solis addressed in a general and conclusory manner the issue of whether the challenged conduct by...Evans ...-terminating...Harmon...in retaliation for his reporting conduct by Evans and others that Harmon believed to be illegal-violated clearly established federal statutory or constitutional rights.
In analyzing qualified immunity claims, the Supreme Court has "repeatedly told courts...to not define clearly established law at a high level of generality." Mullenix v. Luna , [--- U.S. ----] 136 S.Ct. 305, 308 [193 L.Ed.2d 255] (2015) (citation omitted). According to Mullenix , courts must consider "whether the violative nature of particular conduct is clearly established" and must undertake this inquiry "in light of the specific context of the case, not as a broad general proposition." Id. (citations and internal quotations marks omitted).
Because the order on Evans's Motion for Judgment did not consider whether the nature of the challenged conduct was clearly established in the specific context of this case, the court sua sponte revisits this issue, and directs the parties to file by February 2, 2017 , supplemental briefs on the issue. The parties' briefs must not exceed seven (7) pages , exclusive of signature pages, and shall address whether, in light of Mullenix , Garcetti v. Ceballos , 547 U.S. 410 [126 S.Ct. 1951, 164 L.Ed.2d 689] (2006), and related Supreme Court and Fifth Circuit authority, the challenged conduct by Evans and corresponding alleged violation of Harmon's right to First Amendment free speech was clearly established at the time his employment was terminated. No further filings will be allowed regarding this issue unless directed by the court. To avoid further delay, no extensions of time will be granted.
Order 1-2 (Doc. 52). On February 2, 2017, the parties submitted briefing regarding the specific issue raised by the court as to whether the nature of the challenged conduct, with respect to Plaintiff's Free Speech Claim under the First Amendment, was clearly established in the specific context of this case. In addressing the issue raised by the court, Plaintiff advised in his supplemental brief that, in addition to his two claims for denial of equal protection and retaliation in violation of the First Amendment's Speech Clause, he also has a claim against Evans for violation of the First Amendment's Petition Clause that has not yet been challenged by Evans. According to Plaintiff, his First Amendment Petition Claim is based on his allegation that Evans refused to hear his grievance:
Harmon alleges Defendant Evans illegally refused to hear Harmon's grievance over his termination, although Dallas County has claimed that all employees of Dallas County have the right to appeal terminations to their department head. While Harmon claims Dallas County's policy denying grievance rights to him and other deputy constables is a denial of equal protection, Harmon separately challenges Evans' refusal to hear his grievance as a violation of his FIRST AMENDMENT petition right that was clearly established in 1984. Evans has not sought a judgment on the FIRST AMENDMENT petition claim. Retaliation claims under the Speech Clause and the Petition Clause are analyzed in the same way. Accordingly, Harmon also shows Evans has no qualified immunity as to the petition claim.
Wherefore, Harmon shows Judge Solis correctly rejected the qualified immunity defense.
Pl.'s Supp. Br. on Qualified Immunity 7 (Doc. 54) (internal quotation marks and footnotes omitted).
G. March 31, 2017 Opinion on Motions for Partial Summary Judgment and Evans's Motion for Judgment
On March 31, 2017, the court concluded that Plaintiff's claims against the County for denial of equal protection and retaliation for the exercise of free speech under the First Amendment are barred by res judicata and dismissed with prejudice these claims. The court further noted that any claim against Evans under section 1983 in his official capacity arising out of the events at issue in this case would in effect have been a claim against the County that was also barred by res judicata. The court further determined that Evans was entitled to judgment as a matter of law, based on qualified immunity, on Plaintiff's First Amendment Free Speech Claim against in his individual capacity, vacated the portion of Judge Solis's order dealing with his application of the clearly established law standard to this case, and dismissed with prejudice this claim.
Based on its review of Plaintiff's pleadings and the parties' characterization of Plaintiff's claims, the court believed that resolution of the parties' motions on Plaintiff's two claims for denial of equal protection and retaliation in violation of Plaintiff's alleged First Amendment right to free speech disposed of all claims asserted by Plaintiff in this case and expressed surprise as follows regarding Plaintiff's assertion that he had a third "First Amendment Petition Claim" against Evans:
That Plaintiff has a "First Amendment Petition Claim" is a surprise to the court, as this is the first time that Plaintiff has mentioned anything about this claim. This is likely the reason why Evans did not previously challenge the claim in his Motion for Judgment based on qualified immunity. As noted, Evans expressed the belief in his Motion for Judgment that Plaintiff's section 1983 claim was based only on alleged equal protection and First Amendment free speech violations. Dallas County and Judge Solis were similarly operating under the assumption that these were Plaintiff's only claims. Judge Solis refers in passing in his December 1, 2015 order to Plaintiff's allegation "that Evans was fired and refused an appeal of his termination after a GPS audit showed a discrepancy-even though other employees were not fired for this same discrepancy or were at least given an appeal if they were fired," but it is clear that he was referring to this allegation in the context of Plaintiff's First Amendment free speech claim. Order 7 (Doc. 29).
Moreover, Judge Solis's order requiring Plaintiff to file a Rule 7(a) Reply was limited to "the issue of Defendants' qualified immunity defenses," Order (Doc. 24), and did not grant Plaintiff leave to assert new causes of action or allegations supporting new causes of action. While Judge Solis impliedly granted Plaintiff's request for leave in his response to Evans's Motion for Judgment (Doc. 27), to supplement his Complaint and Rule 7(a) Reply, Plaintiff said nothing in his motion for leave or the proposed supplement to his Complaint and Rule 7(a) Reply about asserting a new cause of action. Further, as noted in the factual background of this opinion, Plaintiff's allegation that he was deprived of a fundamental right to petition the government for redress of grievances was previously made in support of his equal protection claim, not the new "First Amendment Petition Claim" alluded to in his Supplemental Brief.
Mem. Op. & Order 16-17 (Doc. 55) (quoting J. Solis's Orders (Docs. 24, 29) ). The court went on to note that qualified immunity is "immunity from suit rather than a mere defense to liability," and qualified immunity questions should, therefore, be determined at the earliest possible stage of litigation. Id. (quoting Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). Given the length of time that the case had been pending, the court expressed "dismay[ ] with Plaintiff's recent assertion regarding a 'First Amendment Petition Claim.' " Mem. Op. & Order 17. Instead of dismissing this action, the court allowed Evans to file a dispositive motion regarding Plaintiff's new First Amendment Petition Claim. It did so in light of Evans's assertion of qualified immunity, and because it did not believe, based on the record in this case, that Dallas County or Evans was aware that Plaintiff was asserting a First Amendment Petition Claim against Evans.
H. Evans's Summary Judgment Motion (Qualified Immunity as to Plaintiff's First Amendment Petition Claim)
On April 26, 2017, Evans moved for summary judgment on Plaintiff's First Amendment Petition Claim. As noted below and discussed more fully herein, Plaintiff contends in response to Evans's summary judgment motion that, in addition to his First Amendment Petition Claim, he has other "petition claims" claims remaining against Evans in his individual capacity. Briefing on this summary judgment motion by Evans was complete on May 30, 2017.
I. Plaintiff's Motion to Recuse
On May 30, 2017, Plaintiff filed his Motion to Recuse, which was denied by the court on August 8, 2017. In his Motion to Recuse, Plaintiff disagreed with the court's characterization of his First Amendment Petition Claim and contended that this claim was not new. Plaintiff makes a similar argument in response to Evans's summary judgment motion, contending that the facts alleged in his Complaint and Rule 7(a) Reply regarding his equal protection claim also support a First Amendment Petition Claim, and the same conduct constitutes a denial of equal protection and violation of his First Amendment right to petition the government. In addition to responding to Evans's summary judgment arguments regarding his remaining First Amendment Petition Claim, Plaintiff contends that Evans's refusal to hear his grievance also constitutes a denial of equal protection and "violated [his] statutory grievance rights under TEXAS GOVERNMENT CODE § 617.005 and DALLAS COUNTY CODE Ch. 86." Pl.'s Summ. J. Resp. 17-18. In light of these arguments by Plaintiff, the court noted in its opinion on Plaintiff's Motion to Recuse that it appeared Plaintiff might now be contending that he has additional individual capacity petition claims remaining against Evans, aside from his First Amendment Petition Claim, that are not barred by qualified immunity. The court indicated in its opinion on the Motion to Recuse that it would address this issue and the parties' arguments made with respect to Evans's pending summary judgment on Plaintiff's First Amendment Petition Claim by separate order.
II. Evans's Summary Judgment Motion (Doc. 57)
A. Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tennessee Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc. , 402 F.3d 536, 540 (5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 254-55, 106 S.Ct. 2505.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). "[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine [dispute] for trial.' " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas , 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id. ; see also Skotak v. Tenneco Resins, Inc. , 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548.
B. Qualified Immunity Standard
Evans contends that he is entitled to qualified immunity for Harmon's First Amendment Petition Claim against him in his individual capacity based on Harmon's alleged right to petition the government. Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo , 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Evans asserted this defense in his Answer.
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme Court initially set forth a mandatory two-part inquiry for determining whether a government official was entitled to qualified immunity. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under Saucier , a court must determine first whether the facts alleged or shown are sufficient to make out a violation of a constitutional or federal statutory right. If the record sets forth or establishes no violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or establishes that a violation could be made out, the court must determine whether the right at issue was clearly established at the time of the government official's alleged misconduct. Id. The Court relaxed this mandatory sequence in Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), and stated, "[W]hile the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory," and judges "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808. The second prong of the test "is better understood as two separate inquiries: whether the allegedly violated constitutional right[ ] [was] clearly established at the time of the incident; and if so, whether the conduct of the defendant[ ] [official] was objectively unreasonable in light of that then clearly established law." Hanks v. Rogers , 853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver v. City of Edna , 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted) ); see also Evans v. Ball , 168 F.3d 856, 860 (5th Cir. 1999) ; Hare v. City of Corinth , 135 F.3d 320, 326 (5th Cir. 1998) ; Eugene v. Alief Indep. Sch. Dist. , 65 F.3d 1299, 1305 (5th Cir. 1995).
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such defense. In the context of qualified immunity, however, this burden varies from the norm. In this circuit, the rule is as follows:
Where...[a] defendant pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law. We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.
Pierce v. Smith , 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see also Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010).
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ; Foster v. City of Lake Jackson , 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense, but also in a more particularized sense, so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton , 483 U.S. at 640, 107 S.Ct. 3034 ; Stefanoff v. Hays Cty. , 154 F.3d 523, 525 (5th Cir. 1998) ; Pierce v. Smith , 117 F.3d at 871.
In Anderson , 483 U.S. at 641, 107 S.Ct. 3034, the Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether the conduct is legal], immunity should be recognized." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ; Gibson v. Rich , 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman , 33 F.3d 472, 477 (5th Cir. 1994) ). Qualified immunity is designed to protect from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs , 475 U.S. at 341, 106 S.Ct. 1092. Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster , 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson , 483 U.S. at 640, 107 S.Ct. 3034. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances. " Pierce v. Smith , 117 F.3d at 882 (emphasis in original and citation omitted); Stefanoff v. Hays Cty. , 154 F.3d at 525. Stated differently, while the law does not require a case directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citations omitted).
In analyzing qualified immunity claims, the Supreme Court has "repeatedly told courts … to not define clearly established law at a high level of generality." Mullenix v. Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citation omitted). Pursuant to Mullenix , courts must consider "whether the violative nature of particular conduct is clearly established" and must undertake this inquiry "in light of the specific context of the case, not as a broad general proposition." Id. (citations and internal quotations marks omitted).
C. Analysis
1. First Amendment Petition Claim
As noted, shortly before this case was set for trial, the court granted the parties' request to file limited motions for summary judgment that, according to the parties, would narrow the issues to be tried. In reviewing the parties' summary judgment motions and the record in this case, the court also decided to revisit Judge Solis's denial of Evans's Motion for Judgment on Plaintiff's First Amendment Free Speech Claim and ordered supplemental briefing by the parties. In his supplemental brief, Harmon contended that, even if the court determined that Evans was entitled to qualified immunity on his First Amendment free speech/retaliation claim, he still had a "petition claim" for violation of his "First Amendment petition right" that remained against Evans and had not been challenged by him. Pl.'s Supp. Br. ¶ 12 (footnotes omitted). To demonstrate in his Supplemental Brief on Qualified Immunity that he had pleaded a "petition claim" against Evans in his individual capacity for violation of his "First Amendment petition right," Plaintiff cited paragraph 38 of his Rule 7(a) Reply, which states: "Defendant Evans illegally refused to hear Harmon's grievance over his termination, although Dallas County has claimed that all employees of Dallas County have the right to appeal terminations to their department head." Pl.'s Rule 7(a) Reply ¶ 38.
Evans was permitted to and did move for summary judgment on what Plaintiff referred to in his Supplemental Brief on Qualified Immunity (Doc. 54) as his First Amendment Petition Claim under section 1983. Because the court expressed surprise to learn that Plaintiff had a claim, other than the claims pleaded in his Complaint for retaliation in violation of the First Amendment Free Speech Clause and denial of equal protection based on Plaintiff's alleged right to petition or appeal the termination of his employment, the parties dedicated a fair amount of argument in their summary judgment briefs on Plaintiff's First Amendment Petition Claim to the issue of whether Plaintiff had actually pleaded a claim against Evans personally for violating of his "First Amendment petition right." Id.
Evans contends that Plaintiff's pleadings contain no such claim and do not satisfy the heightened pleading standard for qualified immunity set forth in Schultea v. Wood , 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc). Evans contends that, even assuming the claim is properly pleaded, it fails as a matter of law because: (1) he committed no violation of Harmon's right to petition under the First Amendment and there was no clearly established law at the time that declared his conduct unconstitutional; (2) Harmon has no fundamental right to complain about the termination of his public employment; and (3) Harmon's grievance regarding his employment termination was a matter of personal concern, not public concern.
Although Plaintiff previously contended in his Supplemental Brief only that he had a "petition claim" under the First Amendment remaining against Evans, he now contends in response to Evans's summary judgment motion on his First Amendment Petition Claim that he has multiple "petition claims" remaining against Evans based on various legal theories. Specifically, Plaintiff contends that he has "petition claims" against Evans for alleged First Amendment, equal protection, and state and local violations. Pl.'s Summ. J. Resp. Br. ¶ 3 (Doc. 62). Plaintiff contends, with respect to all of his "petition claims," whether based on alleged First Amendment, equal protection, or state and local violations, that "Evans has not established as a matter of law that he is entitled to qualified immunity on [his] petition claims." Id. Plaintiff also takes umbrage with the court's surprised reaction to his assertion of a new First Amendment Petition Claim four years into the litigation and maintains that he has asserted, since the inception of this lawsuit, what he now refers to generically as "petition claims" based on "grievance rights":
Contrary to the Court's advocacy regarding an alleged surprise, and notwithstanding Defendant Evans' effort to jump on the "surprise" bandwagon, Norvis Harmon complained that both Defendants denied his grievance rights from the start of the lawsuit in Plaintiff's Original Complaint [Doc. 1], not only in Harmon's Rule 7(a) Reply as the Court erroneously concluded.
Id. ¶¶ 9, 16.
Harmon contends that he has "petition claims" against Evans because he alleges in his Complaint in support of his Denial of Equal Protection Claim that: (1) he was denied equal protection when he sought to appeal the termination of his employment by Defendants "through the Dallas County grievance system and by appealing to Defendant Evans his department head, but his requests to appeal were refused by Defendants "; (2) "the right to petition the government for redress of grievances is a fundamental right"; and "the right to petition the government for redress of grievances should be subjected to strict scrutiny." Id. ¶ 10 (quoting Pl.'s Compl. ¶¶ 23, 27, 28) (footnotes omitted) (emphasis added in Pl.'s Summ. J. Resp. Br.). Plaintiff contends that he gave further notice of his "petition claims" against Evans in his Rule 7(a) Reply by alleging that: (1) "Defendant Evans illegally refused to hear Harmon's grievance over his termination, although Dallas County has claimed that all employees of Dallas County have the right to appeal terminations to their department head"; (2) "Defendant Evans was Norvis Harmon's department head at the time of Harmon's wrongful termination"; (3) Defendant Evans had a policy and/or a regular practice to not hear grievances of employees , including grievances by deputy constables"; and (4) "As an elected Constable, Defendant Evans was a final policy-maker regarding the grievance policy and/or practice of his office ." Pl.'s Summ. J. Resp. Br. ¶ 12 (Doc. 62) (quoting Pl.'s Rule 7(a) Reply ¶¶ 37-41) (footnotes omitted) (emphasis added in Pl.'s Summ. J. Resp. Br.).
Plaintiff also points out that he alleged in his Rule 7(a) Reply that: "The right to petition the government for the redress of grievances is established by the First Amendment to the U.S. Constitution and it is a fundamental right." Pl.'s Summ. J. Resp. Br. ¶ 13 (quoting Pl.'s Rule 7(a) Reply ¶ 45). Based on the equal protection petition and grievance allegations in his Complaint and the allegations in his Rule 7(a) Reply regarding the right to petition being a fundamental right under the First Amendment, Plaintiff contends that his petition claim or what he now refers to as his "petition claims" are not limited to the Denial of Equal Protection claim alleged in his Complaint against Dallas County but also encompass additional legal theories of recovery against Evans for equal protection violations; violations of the First Amendment Petition Clause; and violations of Texas Government Code § 617.005 and Dallas County Code Chapter 86.
Regarding the merits of his First Amendment Petition Claim, Plaintiff responds that the right to petition the government for redress of grievances is a well-established fundamental right that is guaranteed by the First Amendment to the United States Constitution, as well as Texas Government Code § 617.005, which, according to Harmon, "protects the right of public employees to present grievances." Harmon contends that Evans's refusal to hear his grievance regarding the termination of his employment violated his First Amendment right to petition because, once Dallas County voluntarily established a grievance process under Dallas County Code Chapter 86 for constables like him, who were hired after August 19, 2003, to present employment grievances, including those regarding termination, to their chain of command or elected constable for the precinct in which they worked, "Evans was not free to refuse to hear [his] post[-]termination grievance" and could not thereafter institute policies that infringe on his right to petition or discriminate and retaliate against him in administering the County's grievance process without violating the First Amendment. Harmon further asserts that Evans's "policy [of] refusing to hear post[-]termination grievances from deputy constables hired after August 19, 2003," which denied him and other deputy constables their First Amendment right to petition, Pl.'s Summ. J. Resp. Br. ¶ 32 (Doc. 62), should be reviewed under a strict scrutiny standard, and, when reviewed under that standard, the policy fails because it is not narrowly tailored to achieve a compelling state interest. Id. ¶¶ 29-31. In support of his summary judgment response, Plaintiff relies on the evidence (Doc. 44) he previously submitted in support of his Motion for Partial Summary Judgment on his equal protection claim against the County, as well as the evidence (Doc. 47) he submitted in response to Defendants' Limited Motion for Summary Judgment. He also relies on his related prior statements of undisputed facts (Docs. 43, 47-1).
Evans replies that "Plaintiff misstates the applicable law regarding the burden of proof on the qualified immunity issue, for it is [he], not the Constable, who has the burden to prove that the latter is not entitled to qualified immunity." Evans's Summ. J. Reply 4 (Doc. 64). Evans contends that Plaintiff has not met his burden in this regard. Evans also continues to maintain that Plaintiff's pleadings cannot be construed as including a claim based on the First Amendment's Petition Clause, and Plaintiff's allegations that he was not allowed to grieve his termination are not sufficiently specific and detailed to support such a claim. In addition, Evans reasserts that the First Amendment's Petition Clause does not grant employees like Plaintiff an absolute constitutional right to grieve the termination of their employment. To the extent Plaintiff urges arguments and authority in support of his First Amendment Petition Claim that were made in connection with the parties' prior motions for partial summary judgment regarding Harmon's Denial of Equal Protection claim based on Defendants' refusal to hear the appeal of his termination, Evans relies on the briefs previously submitted by Defendants.
a. Whether Plaintiff Has Pleaded a First Amendment Petition Claim
"A properly pleaded complaint must give 'fair notice of what the claim is and the grounds upon which it rests.' " De Franceschi v. BAC Home Loans Servicing, L.P. , 477 Fed.Appx. 200, 204 (5th Cir. 2012) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 698-99, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). For a number of reasons, the court determines that Plaintiff has not pleaded a First Amendment Petition Claim, as the factual allegations in his Complaint against the County and Evans are not sufficient to put Evans on notice that Plaintiff intended to assert a separate retaliation claim against him in his individual capacity under the First Amendment's Petition Clause. The claims in Plaintiff's Complaint are expressly limited to those for "Denial of Equal Protection" and "Free Speech Claim." Pl.'s Compl. 4, 5. Moreover, Plaintiff distinguishes between these claims by alleging that his equal protection claim is based on Defendants' refusal or denial of his grievances appealing the termination of his employment and alleging that his free speech claim is based on Defendants' retaliation in terminating his employment in violation of the First Amendment for speaking out about Evans's misconduct:
20. Plaintiff alleges Defendants' refusal to allow him the opportunity to present his grievances is a denial of equal protection of law and a violation of 42 U.S.C. § 1983.
21. Plaintiff alleges Defendants' termination of his employment for speaking out about Evans' and others' illegal conduct is a violation of his first amendment rights to free speech and a violation of 42 U.S.C. § 1983.
Id. ¶¶ 20-21. Plaintiff similarly delineates in his Rule 7(a) Reply between his equal protection petition claim and his First Amendment retaliation/free speech claim. See Pl.'s Rule 7(a) Reply ¶¶ 30-33, 50 (Doc. 25) (allegations regarding First Amendment retaliation/free speech claim); 34-49 (allegations regarding equal protection petition claim). Likewise, in response to Defendants' Limited Summary Judgment Motion, after this action had been pending three years, Plaintiff asserted only that he had two claims in this action for "denial of equal protection and retaliatory discharge...for exercising his free speech rights." Pl.'s Resp. to Defs.' Summ. J. Mot. ¶¶ 3, 78 (Doc. 47-1). It was only after the court announced its decision to revisit Judge Solis's ruling on Evans's Motion for Judgment as to Plaintiff's Free Speech claim and ordered supplemental briefing on the motion that Plaintiff contended for the first time in February 2017 that he still had a First Amendment Petition Claim against Evans, even if his Free Speech Claim was dismissed.
Plaintiff correctly noted in his Supplemental Brief (Doc. 54) that the framework used to govern retaliation claims by public employees under the First Amendment Speech Clause and Petition Clause is the same. Borough of Duryea, Pa. v. Guarnieri , 564 U.S. 379, 398, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011). Retaliation claims based on First Amendment speech and petition rights, however, are not synonymous, as the former is based on retaliation for speaking out on matters of public concern, whereas the latter is based on retaliation for petitioning on matters of public concern. Specifically, to plead a retaliation cause of action under Section 1983 for violations of the First Amendment Speech or Petition Clauses, a public employee must allege, or set forth allegations from which the court may reasonably infer, that: "(1) he suffered an adverse employment action, (2) his speech [or petition] involved a matter of public concern, (3) his interest in commenting on the matter of public concern outweighed the defendant's interest in promoting efficiency..., and (4) his speech [or petition] was a substantial or motivating factor behind the defendant's actions." James v. Tex. Collin Cty. , 535 F.3d 365, 375-76 (5th Cir. 2008) (citations omitted). First Amendment claims, whether based on the Speech Clause or Petition Clause, also differ from equal protections claims, which must be supported by allegations that "two or more classifications of similarly situated persons were treated differently." Gallegos-Hernandez v. United States , 688 F.3d 190, 195 (5th Cir. 2012) (per curiam) (citation omitted). If this element is alleged, the court determines whether the claim should be reviewed under a strict scrutiny or rational basis standard. Id. (citation omitted). Strict scrutiny applies only when "a government classification implicates a suspect class or a fundamental right." Id. (citation omitted). "Otherwise, rational-basis review applies and th[e] court need only determine whether the classification is rationally related to a legitimate government interest." Id.
Here, Harmon alleges in his Complaint in support of his Free Speech Claim that Defendants terminated his employment for speaking out about Evans's illegal conduct. Harmon similarly alleges in his Rule 7(a) Reply that Evans wrongfully terminated his employment in retaliation for exercising his First Amendment right to speak out about Evans's illegal conduct, which, according to Harmon, involved a matter of public concern. Harmon, however, does not allege anywhere in his Complaint or Rule 7(a) Reply that he was retaliated against by Evans in violation of the First Amendment and suffered an adverse employment action as a result of his petitioning or appealing the termination of his employment; nor does he allege any facts from which the court could reasonably infer that the appeal of his employment termination involved a matter of public concern.
Moreover, while Harmon alleges in his Complaint and Rule 7(a) Reply that "the right to petition the government for redress of grievances is a fundamental right," this allegation is clearly made in connection with his claim for Denial of Equal Protection, as he contends that "the actions of Defendants to deprive Plaintiff of the right to petition the government for redress of grievances, when such right is granted to other similarly situated employees, is a denial of the Plaintiff's right to equal protection of law guaranteed by the U.S. Constitution...that should be subjected to strict scrutiny." Pl.'s Compl. ¶¶ 26-28. Though Harmon alleges for the first time in his Rule 7(a) Reply that "[t]he right to petition the government for the redress of grievances is established by the First Amendment to the U.S. Constitution and it is a fundamental right," Pl.'s Rule 7(a) Reply ¶ 45 (Doc. 25) (emphasis added), this allegation similarly pertains to his "denial of equal protection" claim, see id. ¶ 46, which he distinguishes from his First Amendment claim against Evans for retaliation in violation of his "First Amendment right to speak out on a matter of public concern." Id. ¶ 50. Regardless, the reference in Harmon's Rule 7(a) Reply regarding the right to petition being a fundamental right under the First Amendment is insufficient to state a retaliation claim under the First Amendment's Petition Clause, even if considered in conjunction with the petition allegations in Plaintiff's Complaint.
Further, even if Harmon intended to assert a Petition Clause claim by alleging in his Rule 7(a) reply that the right to petition is established by the First Amendment, a " Rule 7(a) reply is not a proper vehicle for [a] plaintiff[ ] to raise a new cause of action that [he has] not been granted leave to add through an amended complaint." Ellis v. Crawford , No. 3:03-CV-2416-D, 2007 WL 1624773, at *11 (N.D. Tex. June 6, 2007). This is so because the purpose of the heightened pleading standard established by the Fifth Circuit in Schultea that governs Rule 7(a) replies is to require a plaintiff to support the claims he has already asserted with "sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant[s'] conduct at the time of the alleged acts' " in response to a defendant's claim of qualified immunity. Reyes v. Sazan , 168 F.3d 158, 161 (5th Cir. 1999) (quoting Schultea , 47 F.3d at 1434). Harmon's contention in response to Evans's Rule 12(c) Motion for Judgment that he should be granted leave to amend his pleadings after expiration of the pleading deadline, two years after the lawsuit was filed, because Defendants had not previously pointed out the deficiencies in his pleadings via a Rule 12(b)(6) motion to dismiss or motion for more definite statement turns the heightened pleading standard and burden for qualified immunity on its head.
In any event, Judge Solis's order requiring Plaintiff to file a Rule 7(a) Reply was limited to "the issue of Defendants' qualified immunity defenses" and did not grant him leave to assert new causes of action or allegations supporting new causes of action. Order (Doc. 24). While Judge Solis impliedly granted Plaintiff's request for leave, included in his response to Evans's Motion for Judgment (Doc. 27), to supplement his Complaint and Rule 7(a) Reply, Plaintiff said nothing about asserting a new cause of action for retaliation under the First Amendment Petition Clause; rather, his motion for leave and proposed supplement to his Complaint and Rule 7(a) Reply sought only to supplement his pleadings to correct deficiencies in his First Amendment retaliation/speech claim. See Pl.'s Resp. to Evans's Mot. for J. (Doc. 27) ¶¶ 5, 16-19; see also generally Pl.'s Supp. to Orig. Compl. & Rule 7(a) Reply (Doc. 27-1). Thus, Harmon cannot use his Rule 7(a) Reply to add a new claim that was not included in his Complaint, and the court does not construe his Rule 7(a) Reply as amending his pleadings to add a new cause of action for retaliation in violation of the Fist Amendment Petition Clause.
Similarly, the court does not construe Harmon's July 2016 summary judgment arguments as raising a new retaliation claim under the First Amendment's Petition Clause, even though he contended for the first time that Dallas County's order limiting access to the County's grievance system to constables hired before August 19, 2003, constituted a violation of his First Amendment right to petition the government for grievances, as well as a denial of equal protection. Pl.'s Summ. J. Br. ¶¶ 37-39. It is well-established that a claim raised for the first time in the context of a summary judgment motion is "not properly before the court." Cutrera v. Board of Supervisors of La. State Univ. , 429 F.3d 108, 113 (5th Cir. 2005) (quoting Fisher v. Metropolitan Life Ins. Co. , 895 F.2d 1073, 1078 (5th Cir. 1990) ). Accordingly, any summary judgment arguments by Plaintiff regarding First Amendment violations that were made in support of his equal protection claim against Dallas County could not have given rise to a new retaliation claim under the First Amendment Petition Clause.
Plaintiff appears to contend that he should be entitled to recover on any theory of recovery that fits the factual allegations in his pleadings, even if the theory of recovery or cause of action itself is not pleaded. At the motion t