Lytlev.Bustos

United States District Court, N.D. Texas, Dallas DivisionApr 4, 2005
3-04-CV-1093-AH (N.D. Tex. Apr. 4, 2005)

3-04-CV-1093-AH.

April 4, 2005


MEMORANDUM OPINION AND ORDER


WILLIAM SANDERSON, Magistrate Judge

Pursuant to the consents of the parties and the District Court's order of transfer in accordance with the provisions of 28 U.S.C. § 636(c) came on to be considered Defendants' First Amended Motion to Dismiss filed on October 20, 2004, and Plaintiff's Response to Defendants' First Amended Motion to Dismiss filed on November 9, 2004, and having reviewed the pertinent pleadings and briefs of the parties the court finds and orders as follows:

Procedural history : On February 4, 2004, David Lytle filed his original petition in the 86th Judicial District Court of Kaufman County, Texas, Thereafter, he filed his first amended petition on May 4, 2004. On May 21, 2004, Defendants removed the case to federal court. On August 2, 2004, Plaintiff filed an amended petition in this court specifically alleging jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3).

Applicable law: In ruling on a motion to dismiss under Rule 12(b), a court must accept all well-pleaded facts as true and view them in the light most favorable to the nonmovant. O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir. 1985). However, a Rule 12(b) motion should be granted if it appears beyond doubt that a nonmovant can prove no set of facts which would entitle him to relief. E.g. Jones v. Greninger, 188 F.2d 322, 324 (5th Cir. 1999).

In the present case Plaintiff alleges that his rights under the United States Constitution were violated. See Plaintiff's Amended Complaint filed on August 2, 2004, at ¶ 13, page 9. In his subsequently filed Rule 7(a) reply he elaborates upon this assertion, contending that he had a legally cognizable property interest in continued employment with the Seagoville Police Department. See Plaintiff's Reply Brief under Federal Rules of Civil Procedure Rule 7(a) filed on August 18, 2004, at Part II, pages 7-8. His reply refers specifically to General Orders 92-0490 and 92-050 issued by the chief of the Seagoville Police Department and to § 614.022 of the Texas Government Code.

Findings and Conclusions: Under appropriate circumstances, factors may exist which create a "property interest" in a person's entitlement to continued employment. Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 1709 (1972). As applied to an employee of a governmental agency in Texas, "there exists a presumption that employment is at-will unless that relationship has been expressly altered," either by contract or by express rules limiting the conditions made under which an employee may be terminated. Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003).

In the present case, there is no claim that Lytle's employment was pursuant to an express contract. Instead he argues that certain general orders issued by the chief of police, See Exhibits A and B, to Plaintiff's response, constitute a limitation on the conditions under which the City could terminate him.

Although these general orders set out procedures for disciplining employees of the Seagoville Police Department, nothing contained in them limits termination of an employee solely for "good cause." See Evans v. City of Dallas, 861 F.2d 846, 849, n. 10 (5th Cir. 1988); Moulton v. City of Beaumont, 991 F.2d 227, 230-231 (5th Cir. 1993); Henderson v. Sotelo, 761 F.2d 1093, 1096-1098 (5th Cir. 1985).

The provisions of Texas Gov't Code Ann. § 614.022 describe procedures under state law for the disposition of complaints against a police officer (peace officer). However, nothing under this subchapter of the Code requires that a police officer's employment may only be terminated for cause, nor does this subchapter guarantee the continued employment of a police officer except for termination for cause. Therefore, this provision adopted by the Texas legislature does not rebut or obviate the presumption that Lytle was an at-will employee of the City of Seagoville's police department.

Therefore, Lytle's complaint fails to demonstrate an entitlement to continued employment, giving rise to a constitutionally protected property interest. Batterton v. Texas General Land Office, 783 F.2d 1220, 1223 (5th Cir. 1986). Accordingly, Defendants' motion to dismiss Plaintiff's claims asserted under the due process and equal protection provisions of the United States Constitution will be granted.

Supplemental jurisdiction claims : All of the remaining claims asserted by Lytle in his Amended Petition are predicated on Texas state law. In addition the immunities to which these Defendants sued in their individual capacities claim to be entitled are determined by state law. In light of the disposition of Defendants' First Amended Motion to Dismiss, supra, it is preferable that the claims arising under Texas state law be adjudicated by the courts of the State of Texas. Therefore, pursuant to the provisions of 28 U.S.C. § 1367(c) this court declines to exercise supplemental jurisdiction and will remand Plaintiff's state law claims to the state court from which this action was removed. Coghlan v. Wellness Marine Corp., 240 F.3d 449, 455 (5th Cir. 2001); Giles v. NYL Care Health Plans, Inc., 172 F.3d 332, 339 (5th Cir. 1999).

Plaintiff's cause of action against Defendant Kimberly Bustos is predicated solely on Texas state substantive law.

IT IS, THEREFORE, ORDERED that Defendants' First Amended Motion to Dismiss is granted and that Plaintiff's federal question claim is dismissed pursuant to Rule 12(b)(1) with prejudice for want of subject matter jurisdiction.

IT IS FURTHER ORDERED that all remaining claims asserted by Plaintiffs are remanded to the 86th Judicial District Court of Kaufman County, Texas, for all further proceedings.

A copy of this order shall be transmitted to counsel for the parties.

JUDGMENT

Pursuant to the consents of the parties and the District Court's order of transfer filed on August 11, 2004, in accordance with the provisions of 28 U.S.C. § 636(c),

It is ORDERED, ADJUDGED AND DECREED that Defendants' First Amended Motion to Dismiss is granted, and Plaintiff's federal question claim is dismissed with prejudice pursuant to Rule 12(b)(1) for want of subject matter jurisdiction.

IT IS FURTHER ORDERED that all remaining claims asserted by Plaintiff are remanded to the 86th Judicial District Court of Kaufman County, Texas, for all further proceedings.

A copy of this judgment shall be transmitted to counsel for the parties.