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Harmon v. Dallas County

United States Court of Appeals, Fifth Circuit

June 21, 2019

NORVIS HARMON, Plaintiff - Appellant

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

          Before REAVLEY, ELROD, and WILLETT, Circuit Judges.

          PER CURIAM.

         This case is about an employment relationship that did not turn out well. Norvis Harmon, a former deputy constable, brought this action under 42 U.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He alleges the defendants violated his First Amendment rights when he was terminated for reporting the illegal acts of Evans and others to law-enforcement authorities. Harmon additionally alleges the defendants denied him equal protection of the law in refusing to hear his grievance.

         This is Harmon's second lawsuit based on these facts, as he previously filed a state-court lawsuit against Dallas County aggrieving the circumstances of his termination. He did not enjoy a favorable judgment in that suit.

         The district court below disposed of Harmon's claims through a series of summary-judgment and 12(c) rulings.[1] The district court dismissed Harmon's claims against Dallas County as barred by res judicata, [2] and dismissed Harmon's claims against Evans in his individual capacity on the basis of qualified immunity.[3] For the reasons stated herein, we AFFIRM.


         Harmon is a former deputy constable in Precinct 1 of the Dallas County Constable's Office. During his employment, Harmon became aware that Evans and his other superiors were up to some not-so-good things, to wit: (1) requiring deputies to work for Evans's political allies without pay; (2) requiring deputies to donate time and money to Evans's re-election campaign; (3) illegally setting quotas for writing traffic citations; and (4) requiring deputies to tow citizens' vehicles after traffic stops, and to do so with a certain towing company with whom Evans shared a close relationship.

         In November 2009, Harmon reported these activities to Defenbaugh & Associates, an investigative firm hired by the Dallas County Commissioner's Court. Harmon alleges he made similar reports to the Dallas County Human Resources Department, the Dallas County District Attorney, and the Federal Bureau of Investigation.

         Things then went downhill. Word spread that certain deputies were speaking out, prompting Evans to call a meeting in which he made couched threats that he would retaliate against those who did. In March 2010, the Dallas Morning News published an article describing the results of the investigation and confirmed that certain deputies had spoken out against Evans's illegal activities.[4] Although the article did not identify any of the deputies by name, a separate investigative report did.[5]

         Evans later initiated an administrative investigation into Harmon and, finding at least one discrepancy in Harmon's GPS reports, terminated him (from employment) on June 3, 2011. Harmon tried to grieve his termination to Evans, as his department head, and to Dallas County. These attempts were not successful, because deputy constables hired after August 19, 2003 are excluded from the Dallas County Civil Service Commission's grievance system procedure.[6] As Harmon was hired in 2008, he did not have grievance rights. So, Harmon turned to litigation.

         Harmon first sued Dallas County in Texas state court. He asserted claims for alleged violations of the Texas Whistleblower Act and Texas Government Code § 617.005, [7] and an equal protection violation under the Texas Constitution. In addition, Harmon sought injunctive relief and declaratory relief in connection with his equal protection claim, and a declaration that Evans's actions were "illegal and void." Evans was not a party to the state-court action.

         The County moved to dismiss Harmon's suit for lack of subject-matter jurisdiction, arguing that governmental immunity barred Harmon's constitutional claims, as well as those brought under the Whistleblower Act and Local Government Code. The County also argued that Harmon's requests for injunctive and declaratory relief embraced ultra vires acts that could only be asserted against Evans, who was not a party to the suit. The court agreed with the County, dismissed Harmon's claims with prejudice, and granted Harmon the opportunity to replead his claims for declaratory and injunctive relief. Harmon did not, and the state court eventually entered final judgment disposing of all claims and parties on November 7, 2013.

         Harmon brought his second suit in federal court, asserting two claims under § 1983: (1) a retaliation claim under the First Amendment, and (2) an equal protection claim based on the denial of his right to petition the government. In addition to suing the County (again), Harmon also sued Evans in both his individual and official capacities. Evans asserted the defense of qualified immunity, so the district court ordered Harmon to file a Rule 7(a) reply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the pleadings based on his qualified-immunity defense, and both defendants later filed a limited motion for summary judgment asserting that res judicata barred Harmon's federal suit.[8]

         The district court held that res judicata barred Harmon's suit as to the County and Evans in his official capacity, and then granted Evans's Rule 12(c) motion on the basis of qualified immunity as to Harmon's First Amendment retaliation claim.[9] Harmon, however-and to the apparent surprise of the district court and the parties-argued that he still had lingering claims under the First Amendment's Petition Clause. The district court granted Evans the opportunity to file a dispositive motion on those claims, [10] and then granted his motion when he did.[11] Harmon timely appealed.


         Harmon brings three issues on appeal. He first argues that res judicata does not apply to this case. Next, he argues the district court erred in granting Evans qualified immunity on his First Amendment retaliation claim because his right to engage in the speech at issue was clearly established at the time of his termination. Finally, Harmon contends the district court was wrong to grant Evans qualified immunity on his claims under the First Amendment's Petition Clause. We address each in turn.


         We apply Texas law to determine the res judicata effect of a Texas judgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d 632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420-21 (5th Cir. 2016). Under Texas law, res judicata 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." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we ...

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