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Filed 11 November 2 P4:32
Chris Daniel - District Clerk
Harris County
ED101J016574157
By: Roxana Garcia
NO. 2006-02596
TROY PERRY, § IN THE DISTRICT COURT OF
Plaintiff §
§
VS. §
§ HARRIS COUNTY, TEXAS
ALIEF INDEPENDENT SCHOOL §
DISTRICT, ET AL., §
Defendants § 215th DISTRICT COURT
DEFENDANTS’ MOTION TO STRIKE AND REPLY TO PLAINTIFF’S
RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE
MOTIONS FOR SUMMARY JUDGMENT
Defendants Alief Independent School District (AISD or the District), Captain Dan
Turner, and Sergeant Henry Bonaparte file their Motion to Strike and Reply to Plaintiff‘s
Response to Defendants‘ Motion for Summary Judgment as follows:
I.
Motion to Strike
At the outset, Defendants move to strike all new factual allegations contained in
Perry‘s Eighth Amended Petition on the grounds that Perry‘s Eighth Amended Petition
was filed, without leave, after the Court‘s pleadings deadline. Tex. R. Civ. P. 166
(providing that the court may set pleading deadlines); Roskey v. Cont’l Cas. Co., 190
S.W.3d 875, 881 (Tex. App.—Dallas 2006, pet. denied) (holding that the trial court did
not abuse its discretion in refusing amendment six days after pretrial deadline when the
party could have amended anytime during the case‘s seventeen month pendency).
Specifically, Perry‘s Eighth Amended Petition asserts allegations and factual bases for his
claims that he could have asserted at any time during the nearly six years the case has
been pending. See Roskey, 190 S.W.3d at 881.
Perry originally filed this lawsuit nearly six years ago on January 13, 2006. Perry
filed his Seventh Amended Petition on June 1, 2007. Over four years later, Perry filed
his Eighth Amended Petition on October 28, 2011. The Court‘s deadline for filing
amended pleadings passed on October 7, 2011. The discovery period also closed on
October 7th and Defendants moved for summary judgment on this date. Perry therefore
filed his Eighth Amended Petition twenty-one (21) days late, after the close of the
discovery period and after Defendants moved for summary judgment. Perry never filed a
Motion asking for leave from the Court to file his new petition.
In his Eighth Amended Petition, Perry raises the following allegations and factual
bases for the first time:
a. ―Defendants cannot lawfully apply a policy (that Plaintiff
could not contact the Harris County District Attorney without
their prior approval) to take adverse employment action
against Plaintiff for reporting a violation of law,‖ and that
Perry had or possessed a protected free speech right
corresponding to the above statement; (Eighth Amended Pet.
at ¶ 42, 43)
b. Perry‘s termination was a joint decision by AISD Assistant
Superintendent Dr. Rose Benitez, Sergeant Henry Bonaparte,
Captain Dan Turner, and lead defense counsel on this case,
Erik Nichols; (Eighth Amended Pet. at ¶ 59)
c. Nichols was involved in the events leading up to and
including Perry‘s termination; (Eighth Amended Pet. at ¶ 59)
d. Nichols acted as the direct agent of AISD regarding all
matters involving Perry‘s termination; (Eighth Amended Pet.
at ¶ 59)
e. The AISD Board was informed of all relevant actions;
(Eighth Amended Pet. at ¶ 59)
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f. The AISD Board delegated authority to Nichols, Benitez,
Bonaparte, and Turner (Eighth Amended Pet. at ¶ 59)
g. The AISD Board ratified the decision to terminate Perry;
(Eighth Amended Pet. at ¶ 59, 80)
h. The AISD Board ―delegated authority to direct policy as to
Plaintiff‖ ( Eighth Amended Pet. at ¶ 80).
See Perry‘s Eighth Amended Petition.
Perry‘s new allegations are an attempt, the week before trial and after Defendants
moved for summary judgment, to defeat summary judgment and engage in trial by
ambush. Perry raised none of these allegations and facts in his preceding seven petitions
and he does not attempt to justify his failure to make these allegations within the
extensive time allocated by the Court to file amended pleadings. If the Court does not
strike Perry‘s Eighth Amended Petition, Defendants will be surprised and unfairly
prejudiced if they have to try this case on the basis of new facts and allegations that they
were unable to conduct discovery on or address in their dispositive motion.
II.
Objections to Perry’s Exhibit X
Defendants object to Perry‘s Exhibit X on the grounds that Perry‘s statements
therein are inadmissible hearsay. Tex. R. Evid. 801, 802. Accordingly, Perry‘s Exhibit
X should be stricken.
III.
Reply to Plaintiff’s Response to Defendants’
Traditional Motion for Summary Judgment
At the outset, Perry argues that this Court has already ruled upon several of the
arguments presented in Defendants‘ October 7, 2011, Motion for Summary Judgment.
3
See Perry‘s Response at p.1. Perry is mistaken. While Defendants previously moved for
summary judgment and the Court denied portions of Defendants‘ prior Motion, the Court
did not rule upon Defendants‘ challenge to Perry‘s whistleblower claim and Defendants‘
prior No Evidence Motion. See Court‘s November 27, 2007 Order attached as Exhibit 1.
Moreover, Defendants raise new summary judgment grounds in their October 7, 2011
Motion for Summary Judgment which this Court has never considered.
A. Plaintiff concedes that he cannot establish an essential element of his municipal
liability claim.
1. Perry’s concession that he cannot tie his alleged constitutional harm to a
District Policy is fatal to his municipal liability claim.
In response to Defendants‘ Motion for Summary Judgment, Plaintiff effectively
concedes that he cannot identify any District policy that caused him to suffer a
constitutional deprivation. See Perry‘s Response at p. 7 (conceding that Perry‘s proffered
―Keep it Quiet‖ (KIQ) policy is not the basis of his municipal liability claim). This
concession is fatal to Plaintiff‘s claims against AISD. As one of the cases Perry cites
makes clear: ―[m]unicipalities are not vicariously liable for the actions of their employees
under § 1983. Municipal liability inures only when the execution of a local government‘s
policy or custom causes the injury.‖ Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d
703, 724 (S.D. Tex. 2002) (citing Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996)).
Without a policy or custom, Perry cannot impose liability upon AISD under section 1983.
See id. (dismissing municipal liability claim when the plaintiff failed to identify any
school district policy or custom that was the moving force of his claimed constitutional
deprivation). Perry‘s live pleading, his Seventh Amended Petition, is predicated upon the
4
KIQ policy without identifying any other AISD policy and, as such, Perry has conceded
away his municipal liability claim.1
2. Perry cannot impose municipal liability based upon the single incident of
his termination.
Tacitly admitting that he cannot satisfy the custom or policy requirement of
municipal liability, Perry attempts to rely upon a narrow line of cases that impose
municipal liability for the direct action of a municipality‘s policy-makers. See Response
at p. 6. The cases that Perry relies upon all require that the municipal policy-maker‘s
own action cause the constitutional deprivation. See Chavez v. Brownsville Indep. Sch.
Dist., 135 F. App‘x 664, 679 (5th Cir. 2005) (observing that ―[f]or an isolated decision to
constitute a policy for the purposes of § 1983, we require a plaintiff to show that ‗the
decision was made by an authorized policymaker in whom final authority rested
regarding the action ordered.‘‖); Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 225
(5th Cir. 1999) (affirming the imposition of municipal liability when the school district‘s
board of trustees took direct action to affirm a superintendent‘s decision).
Texas law and Fifth Circuit precedent are clear that only the District‘s Board of
Trustees is a policy-maker for purposes of section 1983. See Rivera v. Houston Indep.
Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (holding that final policy-making authority
rests exclusively with a school district‘s board of trustees); Eugene v. Alief Indep. Sch.
Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (holding that the Alief ISD Board of Trustees is
the District‘s policy-maker); Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir.
1
And as argued above, Perry‘s Eighth Amended Petition is untimely and must be stricken. See Part I, supra.
5
1993) (same); Tex. Educ. Code Ann. § 11.151 (West 2006) (providing that school district
trustees have the exclusive power to manage and govern independent school districts and
may adopt rules, regulations, and by-laws that they deem proper). Perry can point to no
evidence that AISD‘s Board of Trustees took any action against him. Indeed, Perry‘s
summary judgment argument concedes that, at best, the decision to terminate him was
taken at the administrative level; not the Board level. See Response at pp. 9-10. The
District‘s administration staff are not the District‘s Board of Trustees and they are not the
District‘s policy-makers. See Eugene, 65 F.3d at 1304. Thus, Perry fails to identify any
direct Board action that caused his alleged constitutional harm.
3. Perry cannot show that AISD’s Board ratified the decision to terminate his
employment.
Perry, who cannot identify a Board Policy or any Board action that caused his
termination, attempts to rely upon an alleged ratification of his termination by the
District‘s Board of Trustees. See Response at pp. 9-10. At the outset, as noted in
Defendants‘ Motion to Strike, supra, Perry has no live pleading to support this theory and
Defendants claim surprise and prejudice regarding any new allegations raised in his
Eighth Amended Petition. In any event, the only case Perry cites in support of this
argument is easily distinguishable. In Harris v. Victoria Independent School District, the
board voted to uphold its superintendent‘s decision to transfer an employee. 168 F.3d
216, 225 (5th Cir. 1999). Given that the Board in Harris had, itself, acted by vote in an
open session of a publically posted meeting, the Fifth Circuit had no difficulty concluding
that the board had ratified its superintendent‘s decision. See id. Here, the Board never
6
took any action with respect to Perry‘s termination and Perry did not offer any summary
judgment evidence to show otherwise. Accordingly, Perry‘s ratification argument fails.
Recognizing that AISD‘s Board never acted with respect to his termination, Perry
offers two novel arguments in an effort to impose municipal liability. Neither was timely
raised by Perry or supported by the evidence. See Part I, supra. Moreover, each
argument fails on the merits. First, Perry argues that he filed a grievance with the Board
on the very day that he was terminated and, as such, ―the AISD Board was directly
involved in, and informed of, the precise complaints that are the fundamental basis for
this lawsuit.‖ See Response at p. 9. This argument fails for one simple reason—even if
Perry‘s grievance was filed on the day of his termination, it would not be presented to the
Board until a publically posted meeting as required by the Texas Open Meetings Act.
See Defendants‘ Motion for Summary Judgment at Exhibit C (Board Policy DGBA
(Local) explaining process for consideration of Level III complaint). Thus, the mere
filing of the grievance does not demonstrate anything other than the fact that the
grievance was filed. See id.
Second, Perry argues that the District‘s lead trial counsel, Mr. Nichols, somehow
participated in the decision to terminate him and that Mr. Nichols‘ knowledge of the
termination is imputed to the Board. See Perry‘s Response at p.9. Once again, Perry has
no live pleading to support this theory. See Part I, supra. In any event, Perry does not,
however, have any evidence to demonstrate the extent of Mr. Nichols‘ knowledge
regarding Perry‘s termination, if any. Thus, Perry has no evidence to show what
knowledge could be imputed to the Board. Further, Perry‘s novel imputation theory
7
would impermissibly allow section 1983 to collapse into a ―font of vicarious liability‖.
See Eugene, 65 F.3d at 1304 (explaining that the rigorous standards of causation and
culpability in a municipal liability case are designed to prevent section 1983 from
collapsing into a font of vicarious liability). This Court should decline Perry‘s invitation
to negate the United States Supreme Court‘s carefully constructed municipal liability
standard. See id.
B. Plaintiff cannot demonstrate that Turner and Bonaparte did anything other
than recommend his termination and, as such, they are not proper defendants to
a First Amendment retaliation claim.
At the outset, Perry fails to address the Fifth Circuit authority cited by Turner and
Bonaparte for the proposition that they are not proper defendants to his First Amendment
claim because they did not make the decision to terminate his employment. The Fifth
Circuit authority is clear that only the person who made the termination decision—i.e.,
the final decision-maker—is a proper defendant. Johnson v. Louisiana, 369 F.3d 826,
831 (5th Cir. 2004). In fact, even assuming that Perry‘s allegations are correct (and they
are not), Johnson instructs that retaliatory motive is not enough to support First
Amendment liability if the defendant did not, in fact, discharge the plaintiff.2 Id.
In response to this argument, Perry asserts that Benitez testified that it was a joint
decision to terminate Perry. See Response at pp. 11-12. However, Perry completely
ignores Benitez‘s testimony that she terminated Perry. See Defendants‘ Motion at pp. 10-
11, Exh. C at pp. 9-10, 33. This testimony is consistent with the fact that Turner and
2
Perry‘s argument that Turner and Bonaparte were his immediate supervisors is irrelevant. Only the final decision-
maker who terminated the plaintiff is a proper First Amendment defendant. See Johnson, 369 F.3d at 831. Indeed,
in Johnson, the Fifth Circuit rejected a claim against the plaintiff‘s immediate supervisors.
Id. at 828, 831.
8
Bonaparte did not have the authority to terminate Perry. See Perry‘s Response at Exh. V
(AISD Board Policy DCD (Local) vests authority to terminate at-will employees in the
Superintendent or his designee). Thus, the fact that the decision may have been a ―joint
decision‖ does not mean that Turner and Bonaparte were the final decision-makers. Dr.
Benitez was the final decision-maker as both AISD Board Policy and Dr. Benitez‘s
testimony make clear.
Perry attempts to avoid the impact of Johnson by relying upon the holding of the
Fourteenth Court of Appeals on interlocutory appeal. However, Perry overstates the
holding of the Fourteenth Court of Appeals with respect to his First Amendment claim by
stating that ―[t]he Fourteenth Court of Appeals and the Texas Supreme Court have held
Perry has a valid First Amendment claim against Turner and Bonaparte regarding Perry‘s
report of unlawful conduct to the Harris County District Attorney.‖ See Response at p.
12. The actual holding of the Fourteenth Court of Appeals—which only addressed
Turner‘s and Bonaparte‘s claim of qualified immunity—was that they were not entitled to
qualified immunity to this claim ―on this record.‖3 Turner v. Perry, 278 S.W.3d 806,
819-21 (Tex. App. – Houston [14th Dist.] 2009, pet. denied). The last phrase is critical
because this argument was not raised in the interlocutory appeal and, as such, it was not
addressed by the Court of Appeals. See id. Moreover, the Court of Appeals did not
consider causation or the underlying merits of Perry‘s claim. And as Johnson makes
clear, this is a causation-based argument that defeats Perry’s First Amendment
3
Perry‘s representation that the Texas Supreme Court approved of his claim is incorrect. The Texas Supreme Court
denied Turner‘s and Bonaparte‘s Petition for Review and, as such, the Texas Supreme Court did not make any
holding whatsoever in this case.
9
retaliation claim on the merits. Johnson, 369 F.3d at 831. It is not an immunity-based
defense and itis not foreclosed by the Fourteenth Court of Appeals‘ qualified immunity
ruling. See id.
C. Perry fails to address the authority cited by Defendants in response to Perry’s
Fourteenth Amendment claim.
Once again, Perry completely avoids addressing the Fourteenth Amendment legal
authority cited in Defendants‘ Motion and he has failed to identify any due process
mandated by the United States Constitution or federal law that he did not receive. Perry‘s
failure to respond to this argument demonstrates that Defendants are entitled to summary
judgment. Instead, Perry argues that this issue has been adjudicated by the Fourteenth
Court of Appeals. Once again, Perry overstates the scope of the Fourteenth Court of
Appeals‘ holding which addressed only Turner‘s and Bonaparte‘s entitlement to qualified
immunity on the basis of the record before it.4 Turner, 278 S.W.3d at 819-21.
1. Perry’s failure to complete AISD’s grievance process is fatal to his claim.
Perry‘s assertion that a section 1983 plaintiff‘s need not exhaust administrative
remedies misses the point. A section 1983 plaintiff must first avail himself of state law
remedies before challenging the adequacy of those remedies. Indeed, Defendants do not
contend that Perry was required to exhaust his administrative remedies to the
Commissioner of Education and then file a judicial review action under the Education
Code with respect to his constitutional claims; rather, he was required to pursue AISD‘s
4
The limited nature of the Fourteenth Court of Appeals‘ holding is illustrated by the fact that the court of appeals
acknowledges that the interlocutory appeal did not address any argument related to exhaustion of administrative
remedies. See id. at 814 n.3 (noting that ―[o]n appeal, the parties do not address . . . appellants contention that Perry
failed to exhaust administrative remedies.‖).
10
internal grievance process to state a viable due process claim in the first instance. The
law is clear that a plaintiff cannot skip available remedies and then complain that he was
deprived of due process. See, e.g., Browning v. City of Odessa, 990 F.2d 842, 845 n.7
(5th Cir. 1993). In such circumstances there is no denial of due process as a matter of
federal law. Rathjen v. Litchfield, 878 F.2d 836, 840-41 (5th Cir. 1989) (explaining ―that
no denial of procedural due process occurs where a person has failed to utilize the state
procedures available to him.‖). Here, Defendants cited numerous cases demonstrating
that a party that fails to complete the process he was afforded cannot assert a due process
challenge. See Defendants‘ Motion for Summary Judgment at pp. 15-16. Perry fails to
respond to these cases cited by Defendants. Perry‘s decision to abandon the grievance
process and his failure to respond to the authority cited by Defendants is fatal to his due
process claim.
2. The Fourteenth Court of Appeals has expressly approved an alternative
state law remedy.
Second, Perry only offers a facile response to Defendants‘ argument that he had
adequate state law remedies available to him. He asserts essentially that Defendants offer
no authority to support the proposition that Perry could have vindicated his state created
due process rights through adequate available state procedures. While Defendants did
not cite specific Texas cases in their Motion for Summary Judgment demonstrating that
Perry could have proceeded under Chapter 37 of the Texas Civil Practice and Remedies
Code, Perry is simply wrong when he claims that there is no authority to support this
11
proposition.5 In fact, in Guthery v. Taylor, a case construing Texas Government Code
section 614.022 and the very case that the Fourteenth Court of Appeals relied upon in
formulating its holding in this case, the Fourteenth Court of Appeals awarded a police
officer plaintiff a declaratory judgment, reinstatement, and back-pay under the Uniform
Declaratory Judgments Act and a writ of mandamus. 112 S.W.3d 715, 724 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). Thus, Texas courts clearly agree that there were
adequate state law remedies available to Perry.6 See id. And, as such, Perry‘s federal due
process claim is barred as a matter of law. See Reid v. New Hampshire, 56 F.3d 332,
340-41 (1st Cir. 1995) (explaining that when a state tort remedy for malicious
prosecution was available to a plaintiff, there was not viable due process claim available
under section 1983).
D. Perry cannot satisfy his burden with respect to the causation element of his
Whistleblower claim.
Perry rehashes his erroneous argument that Bonaparte and Turner actually
terminated him. Again, he fails to address Dr. Benitez‘s deposition testimony and Board
policy that she was the final decision-maker and terminated Perry. See Perry‘s Response
at pp. 18-20; see Part B, supra.
5
Perry‘s citation to Smith v. City of League City, 338 S.W.3d 114, 117 (Tex. App.—Houston [14th Dist.] 2011, no
pet.), for the proposition that the Texas Constitution‘s due course of law provision does not allow for the recovery of
monetary damages misses the point. See Perry‘s Response at p. 17. Just because he could not have recovered
monetary damages under the due course of law provision does not mean that he could not have vindicated his right
to process and reinstatement via declaratory or injunctive relief.See City of Beaumont v. Bullion, 896 S.W.2d 143
(Tex. 1995) (permitting declaratory and injunctive relief under the Texas Constitution‘s bill of rights). Moreover,
Perry also could have recovered attorneys‘ fees. See id. In any event, as demonstrated above, Perry clearly had an
adequate remedy under Chapter 37 of the Texas Civil Practice and Remedies Code.
6
Indeed, at one point, Perry himself agreed given that he initially asserted a claim under the Texas Constitution
Uniform Declaratory Judgments Act. See Perry‘s Original Petition.
12
Dr. Benitez‘s testimony clearly demonstrates that she, as the final decision-maker,
did not know of Perry‘s report until after she terminated him. Thus, it is fatal to Perry‘s
Whistleblower claim. Defendants‘ Motion at pp. 16-17, Exh. C. at p. 154; Harris Cnty.
v. Vernagallo, 181 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Perry‘s attempts to show that causation can be inferred run afoul of the rule barring
precisely such an inference. See id. Accordingly, Defendants are entitled to summary
judgment on Perry‘s Whistleblower claim.
IV.
Reply to Plaintiff’s Response to Defendants’
No-Evidence Motion for Summary Judgment
Perry failed to produce any of evidence of an essential element of each of his
remaining claims in response to Defendants‘ No-Evidence Motion. Defendants reurge
their arguments in section V. (pp. 22-24) of their No-Evidence Motion identifying the
specific elements for which Perry has failed to produce evidence on each of his claims.
As such, Defendants are entitled to summary judgment on the basis of their Motion for
Summary Judgment under Rule 166a(i).
V.
Conclusion
Because Perry cannot demonstrate the existence of any genuine issue of material
fact on any of his remaining claims, this Court should grant Defendants‘ Motion for
Summary Judgment and dismiss Perry‘s claims with prejudice.
13
Respectfully submitted,
ROGERS, MORRIS & GROVER, L.L.P.
________________________________
J. ERIK NICHOLS
State Bar No. 00788119
JONATHAN G. BRUSH
State Bar No. 24045576
STEPHANIE E. MAHER
State Bar No. 24074637
5718 Westheimer, Suite 1200
Houston, Texas 77057
Telephone: 713/960-6000
Facsimile: 713/960-6025
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of November, 2011, I electronically filed the
foregoing document with the Clerk of Court using Texas Online through CaseFileXpress
system which will send electronic notification of such filing and served on all counsel of
record a true and correct copy of the same via Facsimile as follows:
James L. Reed
Michael A. Ackal, III
Looper, Reed & McGraw
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(Via CaseFileXpress Electronic notification AND Facsimile)
14
I further certify that on the 3rd day of November, 2011, a courtesy copy of the
foregoing document was hand delivered to:
Judge Steven E. Kirkland
201 Caroline Street, 13th Floor
Houston, Texas 77002
(Via Hand Delivery)
_______________________________
Attorney for Defendants
15
Preview
Filed 11 November 2 P4:32 Chris Daniel - District Clerk Harris County ED101J016574157 By: Roxana Garcia NO. 2006-02596 TROY PERRY, § IN THE DISTRICT COURT OF Plaintiff § § VS. § § HARRIS COUNTY, TEXAS ALIEF INDEPENDENT SCHOOL § DISTRICT, ET AL., § Defendants § 215th DISTRICT COURT DEFENDANTS’ MOTION TO STRIKE AND REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANTS’ TRADITIONAL AND NO-EVIDENCE MOTIONS FOR SUMMARY JUDGMENT Defendants Alief Independent School District (AISD or the District), Captain Dan Turner, and Sergeant Henry Bonaparte file their Motion to Strike and Reply to Plaintiff‘s Response to Defendants‘ Motion for Summary Judgment as follows: I. Motion to Strike At the outset, Defendants move to strike all new factual allegations contained in Perry‘s Eighth Amended Petition on the grounds that Perry‘s Eighth Amended Petition was filed, without leave, after the Court‘s pleadings deadline. Tex. R. Civ. P. 166 (providing that the court may set pleading deadlines); Roskey v. Cont’l Cas. Co., 190 S.W.3d 875, 881 (Tex. App.—Dallas 2006, pet. denied) (holding that the trial court did not abuse its discretion in refusing amendment six days after pretrial deadline when the party could have amended anytime during the case‘s seventeen month pendency). Specifically, Perry‘s Eighth Amended Petition asserts allegations and factual bases for his claims that he could have asserted at any time during the nearly six years the case has been pending. See Roskey, 190 S.W.3d at 881. Perry originally filed this lawsuit nearly six years ago on January 13, 2006. Perry filed his Seventh Amended Petition on June 1, 2007. Over four years later, Perry filed his Eighth Amended Petition on October 28, 2011. The Court‘s deadline for filing amended pleadings passed on October 7, 2011. The discovery period also closed on October 7th and Defendants moved for summary judgment on this date. Perry therefore filed his Eighth Amended Petition twenty-one (21) days late, after the close of the discovery period and after Defendants moved for summary judgment. Perry never filed a Motion asking for leave from the Court to file his new petition. In his Eighth Amended Petition, Perry raises the following allegations and factual bases for the first time: a. ―Defendants cannot lawfully apply a policy (that Plaintiff could not contact the Harris County District Attorney without their prior approval) to take adverse employment action against Plaintiff for reporting a violation of law,‖ and that Perry had or possessed a protected free speech right corresponding to the above statement; (Eighth Amended Pet. at ¶ 42, 43) b. Perry‘s termination was a joint decision by AISD Assistant Superintendent Dr. Rose Benitez, Sergeant Henry Bonaparte, Captain Dan Turner, and lead defense counsel on this case, Erik Nichols; (Eighth Amended Pet. at ¶ 59) c. Nichols was involved in the events leading up to and including Perry‘s termination; (Eighth Amended Pet. at ¶ 59) d. Nichols acted as the direct agent of AISD regarding all matters involving Perry‘s termination; (Eighth Amended Pet. at ¶ 59) e. The AISD Board was informed of all relevant actions; (Eighth Amended Pet. at ¶ 59) 2 f. The AISD Board delegated authority to Nichols, Benitez, Bonaparte, and Turner (Eighth Amended Pet. at ¶ 59) g. The AISD Board ratified the decision to terminate Perry; (Eighth Amended Pet. at ¶ 59, 80) h. The AISD Board ―delegated authority to direct policy as to Plaintiff‖ ( Eighth Amended Pet. at ¶ 80). See Perry‘s Eighth Amended Petition. Perry‘s new allegations are an attempt, the week before trial and after Defendants moved for summary judgment, to defeat summary judgment and engage in trial by ambush. Perry raised none of these allegations and facts in his preceding seven petitions and he does not attempt to justify his failure to make these allegations within the extensive time allocated by the Court to file amended pleadings. If the Court does not strike Perry‘s Eighth Amended Petition, Defendants will be surprised and unfairly prejudiced if they have to try this case on the basis of new facts and allegations that they were unable to conduct discovery on or address in their dispositive motion. II. Objections to Perry’s Exhibit X Defendants object to Perry‘s Exhibit X on the grounds that Perry‘s statements therein are inadmissible hearsay. Tex. R. Evid. 801, 802. Accordingly, Perry‘s Exhibit X should be stricken. III. Reply to Plaintiff’s Response to Defendants’ Traditional Motion for Summary Judgment At the outset, Perry argues that this Court has already ruled upon several of the arguments presented in Defendants‘ October 7, 2011, Motion for Summary Judgment. 3 See Perry‘s Response at p.1. Perry is mistaken. While Defendants previously moved for summary judgment and the Court denied portions of Defendants‘ prior Motion, the Court did not rule upon Defendants‘ challenge to Perry‘s whistleblower claim and Defendants‘ prior No Evidence Motion. See Court‘s November 27, 2007 Order attached as Exhibit 1. Moreover, Defendants raise new summary judgment grounds in their October 7, 2011 Motion for Summary Judgment which this Court has never considered. A. Plaintiff concedes that he cannot establish an essential element of his municipal liability claim. 1. Perry’s concession that he cannot tie his alleged constitutional harm to a District Policy is fatal to his municipal liability claim. In response to Defendants‘ Motion for Summary Judgment, Plaintiff effectively concedes that he cannot identify any District policy that caused him to suffer a constitutional deprivation. See Perry‘s Response at p. 7 (conceding that Perry‘s proffered ―Keep it Quiet‖ (KIQ) policy is not the basis of his municipal liability claim). This concession is fatal to Plaintiff‘s claims against AISD. As one of the cases Perry cites makes clear: ―[m]unicipalities are not vicariously liable for the actions of their employees under § 1983. Municipal liability inures only when the execution of a local government‘s policy or custom causes the injury.‖ Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 724 (S.D. Tex. 2002) (citing Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996)). Without a policy or custom, Perry cannot impose liability upon AISD under section 1983. See id. (dismissing municipal liability claim when the plaintiff failed to identify any school district policy or custom that was the moving force of his claimed constitutional deprivation). Perry‘s live pleading, his Seventh Amended Petition, is predicated upon the 4 KIQ policy without identifying any other AISD policy and, as such, Perry has conceded away his municipal liability claim.1 2. Perry cannot impose municipal liability based upon the single incident of his termination. Tacitly admitting that he cannot satisfy the custom or policy requirement of municipal liability, Perry attempts to rely upon a narrow line of cases that impose municipal liability for the direct action of a municipality‘s policy-makers. See Response at p. 6. The cases that Perry relies upon all require that the municipal policy-maker‘s own action cause the constitutional deprivation. See Chavez v. Brownsville Indep. Sch. Dist., 135 F. App‘x 664, 679 (5th Cir. 2005) (observing that ―[f]or an isolated decision to constitute a policy for the purposes of § 1983, we require a plaintiff to show that ‗the decision was made by an authorized policymaker in whom final authority rested regarding the action ordered.‘‖); Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 225 (5th Cir. 1999) (affirming the imposition of municipal liability when the school district‘s board of trustees took direct action to affirm a superintendent‘s decision). Texas law and Fifth Circuit precedent are clear that only the District‘s Board of Trustees is a policy-maker for purposes of section 1983. See Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (holding that final policy-making authority rests exclusively with a school district‘s board of trustees); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (holding that the Alief ISD Board of Trustees is the District‘s policy-maker); Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1 And as argued above, Perry‘s Eighth Amended Petition is untimely and must be stricken. See Part I, supra. 5 1993) (same); Tex. Educ. Code Ann. § 11.151 (West 2006) (providing that school district trustees have the exclusive power to manage and govern independent school districts and may adopt rules, regulations, and by-laws that they deem proper). Perry can point to no evidence that AISD‘s Board of Trustees took any action against him. Indeed, Perry‘s summary judgment argument concedes that, at best, the decision to terminate him was taken at the administrative level; not the Board level. See Response at pp. 9-10. The District‘s administration staff are not the District‘s Board of Trustees and they are not the District‘s policy-makers. See Eugene, 65 F.3d at 1304. Thus, Perry fails to identify any direct Board action that caused his alleged constitutional harm. 3. Perry cannot show that AISD’s Board ratified the decision to terminate his employment. Perry, who cannot identify a Board Policy or any Board action that caused his termination, attempts to rely upon an alleged ratification of his termination by the District‘s Board of Trustees. See Response at pp. 9-10. At the outset, as noted in Defendants‘ Motion to Strike, supra, Perry has no live pleading to support this theory and Defendants claim surprise and prejudice regarding any new allegations raised in his Eighth Amended Petition. In any event, the only case Perry cites in support of this argument is easily distinguishable. In Harris v. Victoria Independent School District, the board voted to uphold its superintendent‘s decision to transfer an employee. 168 F.3d 216, 225 (5th Cir. 1999). Given that the Board in Harris had, itself, acted by vote in an open session of a publically posted meeting, the Fifth Circuit had no difficulty concluding that the board had ratified its superintendent‘s decision. See id. Here, the Board never 6 took any action with respect to Perry‘s termination and Perry did not offer any summary judgment evidence to show otherwise. Accordingly, Perry‘s ratification argument fails. Recognizing that AISD‘s Board never acted with respect to his termination, Perry offers two novel arguments in an effort to impose municipal liability. Neither was timely raised by Perry or supported by the evidence. See Part I, supra. Moreover, each argument fails on the merits. First, Perry argues that he filed a grievance with the Board on the very day that he was terminated and, as such, ―the AISD Board was directly involved in, and informed of, the precise complaints that are the fundamental basis for this lawsuit.‖ See Response at p. 9. This argument fails for one simple reason—even if Perry‘s grievance was filed on the day of his termination, it would not be presented to the Board until a publically posted meeting as required by the Texas Open Meetings Act. See Defendants‘ Motion for Summary Judgment at Exhibit C (Board Policy DGBA (Local) explaining process for consideration of Level III complaint). Thus, the mere filing of the grievance does not demonstrate anything other than the fact that the grievance was filed. See id. Second, Perry argues that the District‘s lead trial counsel, Mr. Nichols, somehow participated in the decision to terminate him and that Mr. Nichols‘ knowledge of the termination is imputed to the Board. See Perry‘s Response at p.9. Once again, Perry has no live pleading to support this theory. See Part I, supra. In any event, Perry does not, however, have any evidence to demonstrate the extent of Mr. Nichols‘ knowledge regarding Perry‘s termination, if any. Thus, Perry has no evidence to show what knowledge could be imputed to the Board. Further, Perry‘s novel imputation theory 7 would impermissibly allow section 1983 to collapse into a ―font of vicarious liability‖. See Eugene, 65 F.3d at 1304 (explaining that the rigorous standards of causation and culpability in a municipal liability case are designed to prevent section 1983 from collapsing into a font of vicarious liability). This Court should decline Perry‘s invitation to negate the United States Supreme Court‘s carefully constructed municipal liability standard. See id. B. Plaintiff cannot demonstrate that Turner and Bonaparte did anything other than recommend his termination and, as such, they are not proper defendants to a First Amendment retaliation claim. At the outset, Perry fails to address the Fifth Circuit authority cited by Turner and Bonaparte for the proposition that they are not proper defendants to his First Amendment claim because they did not make the decision to terminate his employment. The Fifth Circuit authority is clear that only the person who made the termination decision—i.e., the final decision-maker—is a proper defendant. Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004). In fact, even assuming that Perry‘s allegations are correct (and they are not), Johnson instructs that retaliatory motive is not enough to support First Amendment liability if the defendant did not, in fact, discharge the plaintiff.2 Id. In response to this argument, Perry asserts that Benitez testified that it was a joint decision to terminate Perry. See Response at pp. 11-12. However, Perry completely ignores Benitez‘s testimony that she terminated Perry. See Defendants‘ Motion at pp. 10- 11, Exh. C at pp. 9-10, 33. This testimony is consistent with the fact that Turner and 2 Perry‘s argument that Turner and Bonaparte were his immediate supervisors is irrelevant. Only the final decision- maker who terminated the plaintiff is a proper First Amendment defendant. See Johnson, 369 F.3d at 831. Indeed, in Johnson, the Fifth Circuit rejected a claim against the plaintiff‘s immediate supervisors. Id. at 828, 831. 8 Bonaparte did not have the authority to terminate Perry. See Perry‘s Response at Exh. V (AISD Board Policy DCD (Local) vests authority to terminate at-will employees in the Superintendent or his designee). Thus, the fact that the decision may have been a ―joint decision‖ does not mean that Turner and Bonaparte were the final decision-makers. Dr. Benitez was the final decision-maker as both AISD Board Policy and Dr. Benitez‘s testimony make clear. Perry attempts to avoid the impact of Johnson by relying upon the holding of the Fourteenth Court of Appeals on interlocutory appeal. However, Perry overstates the holding of the Fourteenth Court of Appeals with respect to his First Amendment claim by stating that ―[t]he Fourteenth Court of Appeals and the Texas Supreme Court have held Perry has a valid First Amendment claim against Turner and Bonaparte regarding Perry‘s report of unlawful conduct to the Harris County District Attorney.‖ See Response at p. 12. The actual holding of the Fourteenth Court of Appeals—which only addressed Turner‘s and Bonaparte‘s claim of qualified immunity—was that they were not entitled to qualified immunity to this claim ―on this record.‖3 Turner v. Perry, 278 S.W.3d 806, 819-21 (Tex. App. – Houston [14th Dist.] 2009, pet. denied). The last phrase is critical because this argument was not raised in the interlocutory appeal and, as such, it was not addressed by the Court of Appeals. See id. Moreover, the Court of Appeals did not consider causation or the underlying merits of Perry‘s claim. And as Johnson makes clear, this is a causation-based argument that defeats Perry’s First Amendment 3 Perry‘s representation that the Texas Supreme Court approved of his claim is incorrect. The Texas Supreme Court denied Turner‘s and Bonaparte‘s Petition for Review and, as such, the Texas Supreme Court did not make any holding whatsoever in this case. 9 retaliation claim on the merits. Johnson, 369 F.3d at 831. It is not an immunity-based defense and itis not foreclosed by the Fourteenth Court of Appeals‘ qualified immunity ruling. See id. C. Perry fails to address the authority cited by Defendants in response to Perry’s Fourteenth Amendment claim. Once again, Perry completely avoids addressing the Fourteenth Amendment legal authority cited in Defendants‘ Motion and he has failed to identify any due process mandated by the United States Constitution or federal law that he did not receive. Perry‘s failure to respond to this argument demonstrates that Defendants are entitled to summary judgment. Instead, Perry argues that this issue has been adjudicated by the Fourteenth Court of Appeals. Once again, Perry overstates the scope of the Fourteenth Court of Appeals‘ holding which addressed only Turner‘s and Bonaparte‘s entitlement to qualified immunity on the basis of the record before it.4 Turner, 278 S.W.3d at 819-21. 1. Perry’s failure to complete AISD’s grievance process is fatal to his claim. Perry‘s assertion that a section 1983 plaintiff‘s need not exhaust administrative remedies misses the point. A section 1983 plaintiff must first avail himself of state law remedies before challenging the adequacy of those remedies. Indeed, Defendants do not contend that Perry was required to exhaust his administrative remedies to the Commissioner of Education and then file a judicial review action under the Education Code with respect to his constitutional claims; rather, he was required to pursue AISD‘s 4 The limited nature of the Fourteenth Court of Appeals‘ holding is illustrated by the fact that the court of appeals acknowledges that the interlocutory appeal did not address any argument related to exhaustion of administrative remedies. See id. at 814 n.3 (noting that ―[o]n appeal, the parties do not address . . . appellants contention that Perry failed to exhaust administrative remedies.‖). 10 internal grievance process to state a viable due process claim in the first instance. The law is clear that a plaintiff cannot skip available remedies and then complain that he was deprived of due process. See, e.g., Browning v. City of Odessa, 990 F.2d 842, 845 n.7 (5th Cir. 1993). In such circumstances there is no denial of due process as a matter of federal law. Rathjen v. Litchfield, 878 F.2d 836, 840-41 (5th Cir. 1989) (explaining ―that no denial of procedural due process occurs where a person has failed to utilize the state procedures available to him.‖). Here, Defendants cited numerous cases demonstrating that a party that fails to complete the process he was afforded cannot assert a due process challenge. See Defendants‘ Motion for Summary Judgment at pp. 15-16. Perry fails to respond to these cases cited by Defendants. Perry‘s decision to abandon the grievance process and his failure to respond to the authority cited by Defendants is fatal to his due process claim. 2. The Fourteenth Court of Appeals has expressly approved an alternative state law remedy. Second, Perry only offers a facile response to Defendants‘ argument that he had adequate state law remedies available to him. He asserts essentially that Defendants offer no authority to support the proposition that Perry could have vindicated his state created due process rights through adequate available state procedures. While Defendants did not cite specific Texas cases in their Motion for Summary Judgment demonstrating that Perry could have proceeded under Chapter 37 of the Texas Civil Practice and Remedies Code, Perry is simply wrong when he claims that there is no authority to support this 11 proposition.5 In fact, in Guthery v. Taylor, a case construing Texas Government Code section 614.022 and the very case that the Fourteenth Court of Appeals relied upon in formulating its holding in this case, the Fourteenth Court of Appeals awarded a police officer plaintiff a declaratory judgment, reinstatement, and back-pay under the Uniform Declaratory Judgments Act and a writ of mandamus. 112 S.W.3d 715, 724 (Tex. App.— Houston [14th Dist.] 2003, no pet.). Thus, Texas courts clearly agree that there were adequate state law remedies available to Perry.6 See id. And, as such, Perry‘s federal due process claim is barred as a matter of law. See Reid v. New Hampshire, 56 F.3d 332, 340-41 (1st Cir. 1995) (explaining that when a state tort remedy for malicious prosecution was available to a plaintiff, there was not viable due process claim available under section 1983). D. Perry cannot satisfy his burden with respect to the causation element of his Whistleblower claim. Perry rehashes his erroneous argument that Bonaparte and Turner actually terminated him. Again, he fails to address Dr. Benitez‘s deposition testimony and Board policy that she was the final decision-maker and terminated Perry. See Perry‘s Response at pp. 18-20; see Part B, supra. 5 Perry‘s citation to Smith v. City of League City, 338 S.W.3d 114, 117 (Tex. App.—Houston [14th Dist.] 2011, no pet.), for the proposition that the Texas Constitution‘s due course of law provision does not allow for the recovery of monetary damages misses the point. See Perry‘s Response at p. 17. Just because he could not have recovered monetary damages under the due course of law provision does not mean that he could not have vindicated his right to process and reinstatement via declaratory or injunctive relief.See City of Beaumont v. Bullion, 896 S.W.2d 143 (Tex. 1995) (permitting declaratory and injunctive relief under the Texas Constitution‘s bill of rights). Moreover, Perry also could have recovered attorneys‘ fees. See id. In any event, as demonstrated above, Perry clearly had an adequate remedy under Chapter 37 of the Texas Civil Practice and Remedies Code. 6 Indeed, at one point, Perry himself agreed given that he initially asserted a claim under the Texas Constitution Uniform Declaratory Judgments Act. See Perry‘s Original Petition. 12 Dr. Benitez‘s testimony clearly demonstrates that she, as the final decision-maker, did not know of Perry‘s report until after she terminated him. Thus, it is fatal to Perry‘s Whistleblower claim. Defendants‘ Motion at pp. 16-17, Exh. C. at p. 154; Harris Cnty. v. Vernagallo, 181 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Perry‘s attempts to show that causation can be inferred run afoul of the rule barring precisely such an inference. See id. Accordingly, Defendants are entitled to summary judgment on Perry‘s Whistleblower claim. IV. Reply to Plaintiff’s Response to Defendants’ No-Evidence Motion for Summary Judgment Perry failed to produce any of evidence of an essential element of each of his remaining claims in response to Defendants‘ No-Evidence Motion. Defendants reurge their arguments in section V. (pp. 22-24) of their No-Evidence Motion identifying the specific elements for which Perry has failed to produce evidence on each of his claims. As such, Defendants are entitled to summary judgment on the basis of their Motion for Summary Judgment under Rule 166a(i). V. Conclusion Because Perry cannot demonstrate the existence of any genuine issue of material fact on any of his remaining claims, this Court should grant Defendants‘ Motion for Summary Judgment and dismiss Perry‘s claims with prejudice. 13 Respectfully submitted, ROGERS, MORRIS & GROVER, L.L.P. ________________________________ J. ERIK NICHOLS State Bar No. 00788119 JONATHAN G. BRUSH State Bar No. 24045576 STEPHANIE E. MAHER State Bar No. 24074637 5718 Westheimer, Suite 1200 Houston, Texas 77057 Telephone: 713/960-6000 Facsimile: 713/960-6025 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of November, 2011, I electronically filed the foregoing document with the Clerk of Court using Texas Online through CaseFileXpress system which will send electronic notification of such filing and served on all counsel of record a true and correct copy of the same via Facsimile as follows: James L. Reed Michael A. Ackal, III Looper, Reed & McGraw 1300 Post Oak Blvd., Suite 2000 Houston, Texas 77056 (Via CaseFileXpress Electronic notification AND Facsimile) 14 I further certify that on the 3rd day of November, 2011, a courtesy copy of the foregoing document was hand delivered to: Judge Steven E. Kirkland 201 Caroline Street, 13th Floor Houston, Texas 77002 (Via Hand Delivery) _______________________________ Attorney for Defendants 15