CALVIN GARY WALKER; WALKER'S ELECTRIC; WALKERS ELECTRIC; JESSIE HAYNES, Plaintiffs - Appellants
BEAUMONT INDEPENDENT SCHOOL DISTRICT; AARON COVINGTON; LEROY SALEME; VERNON BUTLER;JANE KINGSLEY; TERRY INGRAM; MICHAEL "MIKE" NEIL; TOM NEILD; VENICE MONROE; A. B. BERNARD; JIMMY SIMMONS; ROBERT TURNER; JOE DOMINO; LENNY CABARELLO; JACK CARROLL; BEAUMONT EXAMINER; DON DODD; JENNIFER JOHNSON; BEAUMONT ENTERPRISE; BROOKE CRUM; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; LOCAL UNION 479,INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; STEVEN LISLE; DUWAYNE HERRMANN, also known as Dwayne Hermann; CHRIS KIBBY; DAVID GONZALES; WAYNE REAUD; MICHAEL GETZ; CORY CRENSHAW; MALCOLM BALES; JERRY JORDAN; BOB RAWLS;TIMOTHY BREWER; DEANNA STEVENS, Defendants - Appellees
from the United States District Court for the Eastern
District of Texas.
SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
D. ENGELHARDT, CIRCUIT JUDGE.
this appeal, we review the district court's dismissal of
the entirety of Appellants' claims pursuant to the Texas
Citizens' Participation Act, ("TCPA"), Tex.
Civ. Prac. & Rem. Code, §§ 27.001-27.011 (West)
and Rule 12 of the Federal Rules of Civil Procedure. For the
reasons stated herein, we AFFIRM that dismissal as to all
claims and all parties named herein as
Calvin Gary Walker ("Walker"), Walkers Electric,
and Walker's Electric originally filed suit in July 16,
2015, in the United States District Court for the Eastern
District of Texas, Marshall Division. The Walker
action was consolidated, on February 23, 2016, with a related
case, Haynes v. Crenshaw, et al. (civ. action no.
1:15-CV-437), filed by Plaintiff Jessie Haynes
("Haynes"). Following transfer from the Marshall
Division to the Beaumont Division, Plaintiffs-Appellants
("Appellants" or "Plaintiffs") Walker and
Haynes filed a consolidated Fourth Amended Complaint on
December 22, 2015.
forth in the Fourth Amended Complaint, Appellants assert that
they are the victims of an extensive, long-lasting conspiracy
("conspiracy" or "Conspiracy") designed
to prevent African-American individuals in Beaumont from
gaining power and influence in order to perpetuate
"white dominion over Beaumont local politics." This
conspiracy, spanning approximately a decade, allegedly
involved approximately 35 residents and organizations in the
Beaumont area, including the Beaumont Independent School
District ("BISD"), the BISD Board of Trustees and
subsequent BISD Board of Managers, two local newspapers and
their employees, two online journalists, the local chapter of
the International Brotherhood of Electrical Workers
("IBEW") and several of its members, a Beaumont
City Councilperson, two local attorneys, the United States
Attorney for the Eastern District of Texas, two Assistant
United States Attorneys, and two agents with the Federal
Bureau of Investigation ("FBI"). The objective of
this alleged conspiracy was to ruin Appellants'
reputations and businesses as part of a larger campaign to
harm minority individuals who "stepped out of line"
and "defied the status quo."
is a Master Electrician and owner of Walker's Electric
Company, which offers electrical services in Beaumont. He
asserts that the conspiracy against him began around 2004
when members of IBEW asked him to join and he refused, at
which point he was told that the union would "get him
one way or another." Walker then contracted to provide
electrical services to the BISD, a position that had
previously been held by an IBEW member. In April 2008, IBEW
filed a complaint against Walker with the Texas Department of
Licensing and Registration ("TDLR"), asserting that
Walker had obtained his electrician's license through
fraud. Although Walker initially contested the matter and
continues to assert that IBEW was behind and heavily involved
with the investigation, he ultimately agreed to pay a fine,
relinquish his Master Electrician's license, and re-take
the required licensing exam.
asserts that IBEW then conspired with BISD board members to
ruin Walker's reputation and business. According to
Walker, the BISD board members complained at BISD Executive
Cabinet meetings that he was making too much money for a
minority and was a sloppy businessman. He additionally avers
that BISD personnel sought to ensure that he did not get any
other contracts with the BISD and imposed onerous
record-keeping requirements upon him. Specifically, Walker
contends that he, a black non- union electrician, was the
only contractor required to submit detailed invoices. He
further alleges that, in 2008, BISD Chief Financial Officer
Jane Kingsley, acting on behalf of the BISD, attempted
(unsuccessfully) to ensure Walker's contract with the
BISD was not renewed by illegally conducting the bid process.
failed to prevent Walker from contracting with the BISD, the
IBEW and the BISD allegedly next turned to Malcolm Bales, the
United States Attorney for the Eastern District of Texas, to
prompt Walker's May 2011 indictment on 37 counts of
fraud. In addition, Walker alleges that Deanna Stevens and
Timothy Brewer-the FBI agents involved in his
prosecution-tampered with potential witnesses during his
trial, offering bribes to one and threatening two others.
Members of the United States Attorney's Office also
allegedly leaked information about Walker's case to
members of the IBEW and the BISD. Walker was tried on the
fraud counts in December 2011, which resulted in a hung jury
on July 17, 2012, Walker pleaded guilty to one count of
willful failure to pay income taxes. He complains that
members of the conspiracy, including members of the press and
the BISD's Board of Trustees, thereafter relentlessly
smeared him by wrongfully stating that he had pleaded guilty
to defrauding the BISD and that he had agreed to repay it for
the money that he had stolen. Walker asserts that, although
the records of the BISD contained altered documents, there
was no evidence admitted at trial that Walker or his wife
submitted those documents to the BISD in connection with
receiving payments for projects. Walker additionally alleges
that Bob Rawls, the Assistant United States Attorney assigned
to the case, urged the BISD to cease doing business with
Walker and sent letters to a number of government entities
and individuals, falsely informing them that Walker was a
complains that members of the conspiracy continued to engage
in a smear campaign against him and that BISD board members
and other conspirators repeatedly stated that Walker had
admitted to submitting fraudulent invoices. Walker further
contends that members of this conspiracy joined with their
media allies at The Examiner, The Beaumont
Enterprise, and two websites to spread these allegedly
unfounded allegations. Unidentified members of the conspiracy
also purportedly interfered with Walker's existing
contract with BISD by improperly terminating his contract in
2014. Accordingly, Walker alleges he was prevented from being
awarded the BISD contract and lost substantial business from
other prospective customers because the BISD's
"Evaluation Matrix," prepared by BISD (Employee)
Appellees – Leroy Saleme (BISD Chief Financial
Officer), Aaron Covington (BISD Director of Contracts), and
Vernon Butler (BISD Superintendent) – to compare
contractors, falsely represented that he had admitted to
padding BISD invoices, along with other purported falsehoods.
further contends that the conspiracy has continued such that
that United States Attorney Bales, unsatisfied with
Walker's plea of guilty to willful failure to file income
taxes, has conspired with the Jefferson County District
Attorney Cory Crenshaw, a former Assistant United States
Attorney, to form a joint task force in order to prosecute
Walker in state court, despite the BISD's internal
audit's having revealed he had not defrauded the BISD.
too, allegedly was victimized by the conspiracy for
supporting (former) BISD Superintendent Carroll Thomas.
Specifically, she claims that BISD Board of Trustees member
Michael Neil pushed her away from a door leading to a press
conference at BISD after she prevented Jerry Jordan, a
journalist for SETInvestigates.com, from entering
the press conference. Additionally, rather than Neil's
being prosecuted for assault, Haynes was prosecuted and
subsequently convicted in state court for obstruction of a
public passageway. She additionally claims that, at her
trial, at which Neil, Jordan, and City Councilperson Michael
Getz (who was also present outside the press conference)
testified, and Wayne Reaud, owner of the Beaumont
Examiner, a Media-Appellee, was present, was a
product of the RICO racketeering enterprise and conspiracy.
She alleges "the Conspiracy engaged in a concerted
campaign to harass [her], tarnish her reputation, attack her
integrity, and threat[en] criminal and/or administrative
repercussions." Also allegedly included in the campaign
was Neil's attendance at an incident where individuals
marched down the BISD's hallways chanting "Fire
Jessie [Haynes] now," responding "lol" to an
online comment about Haynes' criminal conviction and
involvement in a verbal altercation in a parking lot with two
of Haynes' supporters. Haynes adds that that the
conspiracy also attacked a book that she wrote.
the panel's understanding of their claims,
Appellants' brief includes the chart set forth below,
which generally identifies the claims asserted along with the
corresponding appellant(s) and appellee(s). Appellants
identify six categories of Appellees. "Conspiracy"
refers to all of the Appellees collectively. The other five
categories of Appellees identified by Appellants are: the
Media Appellees, City Councilperson Getz, the IBEW Appellees,
the BISD Appellees, and the Prosecutors.
With Existing Contract
With Prospective Contracts
Civil Rights Violation
Civil Conspiracy (State Law)
§1962(c) – racketeering
Neil, Crenshaw, Jordan, Reaud, and Getz
§1962(a) – use of income from
pattern of racketeering
§1962(d) - Conspiracy
Walker and Haynes
response to the Fourth Amended Complaint, the Appellees filed
multiple motions to dismiss. The IBEW Appellees moved
pursuant to Federal Rule of Civil Procedure
("FRCP") 12(c). All other Appellees moved for
dismissal under FRCP 12(b)(6) and/or the Texas Citizens
Participation Act ("TCPA"). In addition, the BISD
Appellees moved for dismissal under FRCP 12(b)(1), and the
BISD moved for dismissal of the individual BISD Employees,
Board of Managers, and Trustees (collectively
the "BISD Agents") under the Texas Tort Claims Act
("TTCA"), Tex. Civ. Prac. & Rem. Code §
the issuance of eleven written rulings by District Judge
Crone (considering nine "Reports and
Recommendations" issued by Magistrate Judge Giblin), all
claims against all defendants were dismissed on one or more
grounds. This appeal followed.
FRCP 12(b)(1), a party may challenge the subject matter
jurisdiction of the court to hear a case. Sovereign immunity
deprives the court of subject matter jurisdiction.
Iraheta v. Linebarger Goggan Blair & Sampson,
L.L.P., 734 F.App'x 216, 219 (5th Cir. 2018). We
review dismissal for lack of subject matter jurisdiction
de novo. Id. Lack of subject matter
jurisdiction may be found in any one of three instances: (1)
the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.
12(c) permits a party to move for a judgment on the
pleadings. "A Rule 12(c) motion may dispose of a case
when there are no disputed material facts and the court can
render a judgment on the merits based on 'the substance
of the pleadings and any judicially noted facts.'"
Linicomn v. Hill, 902 F.3d 529, 533 (5th Cir. 2018)
(quoting Machete Prods., L.L.C. v. Page, 809 F.3d
281, 287 (5th Cir. 2015)). A Rule 12(c) motion is subject to
the same standard as a motion to dismiss under FRCP 12(b)(6).
Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir.
appellate court conducts a de novo review of a
district court's dismissal of a complaint under FRCP
12(b)(6). See Clyce v. Butler, 876 F.3d 145, 148
(5th Cir. 2017). We may affirm a district court's order
dismissing a claim under Rule 12(b)(6) "on any basis
supported by the record." Taylor v. City of
Shreveport, 798 F.3d 276, 279 (5th Cir. 2015)
12(b)(6) authorizes the filing of motions to dismiss
asserting, as a defense, a plaintiff's "failure to
state a claim upon which relief can be granted."
See Fed. R. Civ. P. 12(b)(6). Thus, claims may be
dismissed under Rule 12(b)(6) "on the basis of a
dispositive issue of law." Neitzke v. Williams,
490 U.S. 319, 326 (1989). Dismissal under FRCP 12(b)(6) also
is warranted if the complaint does not contain sufficient
factual matter, accepted as true, to "state a claim to
relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Where the
well-pleaded facts of a complaint do not permit a court to
infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
'show[n]'-"that the pleader is entitled to
relief." Iqbal, 556 U.S. at 678 (quoting Fed.
Rule Civ. P. 8(a)(2)). Accordingly, a complaint's
allegations "must make relief plausible, not merely
conceivable, when taken as true." United States ex
rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir.
2009); see also Twombly, 550 U.S. at 555
("Factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).").
plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. Factual allegations that are "merely
consistent with a defendant's liability, stop short of
the line between possibility and plausibility of entitlement
to relief," and thus are inadequate. Id.
(internal quotations omitted). Accordingly, the requisite
facial plausibility exists "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. (emphasis added). Even so,
however, a "well-pleaded complaint may proceed even if
it appears that a recovery is very remote and unlikely."
Twombly, 550 U.S. at 556. Finally,
"[d]etermining whether a complaint states a plausible
claim for relief" is "a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S.
at 679 (internal citations omitted). See also Robbins v.
Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (degree
of required specificity depends on context, i.e., the type of
claim at issue).
evaluating motions to dismiss filed under Rule 12(b)(6), the
Court "must accept all well-pleaded facts as true, and .
. . view them in the light most favorable to the
plaintiff." Campbell v. Wells Fargo Bank, N.A.,
781 F.2d 440, 442 (5th. Cir.). Further, "[a]ll questions
of fact and any ambiguities in the controlling substantive
law must be resolved in the plaintiff's favor."
Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
On the other hand, courts "are not bound to accept as
true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265,
286 (1986); see also Iqbal, 556 U.S. at 678
("tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions."). "Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement.' " Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557); see also
Christopher v. Harbury, 536 U.S. 403, 416 (2002)
(elements of a plaintiff's claim(s) "must be
addressed by allegations in the complaint sufficient to give
fair notice to a defendant").
determining whether a plaintiff's claims survive a Rule
12(b)(6) motion to dismiss, the factual information to which
the court addresses its inquiry is limited to the (1) the
facts set forth in the complaint, (2) documents attached to
the complaint, and (3) matters of which judicial notice may
be taken under Federal Rule of Evidence 201. See Norris
v. Hurst Trust, 500 F.3d 454, 461, n. 9 (5th Cir. 2007);
R2 Invs. LDC v. Phillips, 401 F.3d 638, 640, n. 2
(5th Cir. 2005). Judicial notice may be taken of matters of
public record. Firefighters' Retirement Sys., v.
Eisneramper, 898 F.3d 553, 558 n.2 (5th Cir. 2018). When
a defendant attaches documents to its motion that are
referred to in the complaint and are central to the
plaintiff's claims, the court may also properly consider
those documents. Causey v. Sewell Cadillac-Chevrolet,
Inc., 394 F.3d 285, 288 (5th Cir. 2004); In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). "In so attaching, the defendant merely
assists the plaintiff in establishing the basis of the suit,
and the court in making the elementary determination of
whether a claim has been stated." Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000).
presenting the issues for review on appeal, Appellants
generally assert the district court erred in dismissing their
claims on pleading grounds and/or defenses asserted by
Appellees, including statute of limitations, preemption by
the National Labor Relations Act ("NLRA"), 29
U.S.C. § 151, et seq., and federal and state
immunity (prosecutorial, official/absolute, or qualified.)
Appellants provide the following summary of their argument:
This case is about a conspiracy between union members,
prosecutors, a school district, and the media to remove
African Americans such as Walker and Haynes from positions of
power in Beaumont, Texas. After their initial efforts to
prosecute Walker for allegedly defrauding [the] BISD through
its electrical services contract failed, the Conspiracy
ramped up their efforts to tarnish Walker's reputation
and destroy his career. When Haynes, a member of [the]
BISD's Superintendent's Executive Cabinet, supported
the Superintendent and stood up for Walker, the Conspiracy
turned to her.
The district court erred in dismissing Appellants' claims
by demanding more than is required under Rule 12(b) and the
TCPA. The court treated Appellees' motions to dismiss as
if they had been summary judgment motions but did not give
Appellants an opportunity to conduct even limited discovery
before deciding they did not have sufficient allegations or
evidence to support their claims. In determining the
sufficiency of Appellants' allegations, the court pulled
statements out of context, and demanded allegations specific
to each individual Appellee notwithstanding the rule that
co-conspirators are responsible for each other's acts.
The court also erred in finding Appellants' claims
against the IBEW Defendants preempted under the NLRA, and
that the BISD Defendants and Prosecutors are entitled to
immunity. The BISD Defendants were not acting within the
scope of their employment – particularly Neil when he
physically assaulted Haynes. At a minimum, fact issues exist.
The Texas Citizens Participation Act
initial matter, we note that, until recently, uncertainty
existed in this circuit relative to the applicability of the
Texas Citizens Participation Act ("TCPA") Tex. Civ.
Prac. & Rem. Code, §§ 27.001-27.011, in federal
courts.See, e.g., Cuba v. Pylant, 814
F.3d 701, 706 n.6 (5th Cir. 2016) (assuming without deciding
that the TCPA's (state) procedural rules apply in federal
court); Cuba, 814 F.3d at 718 (Graves, J.,
dissenting) (the TCPA conflicts with FRCP 12); NDCR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 746
(5th Cir. 2014) (arguments that TCPA conflicts with FRCP
12(d) and Federal Rule of Appellate Procedure 4 waived
because not raised in district court). In this
matter, the district court determined that dismissal of
Appellants' claims was warranted regardless of whether
its analysis was governed by the TCPA or the FRCP.
however, another panel of this court held: "[b]ecause
the TCPA's burden-shifting framework imposes additional
requirements beyond those found in [FRCP] 12 and 56 and
answers the same question as those rules, the state law
cannot apply in federal court." Klocke v.
Watson, No. 17-11320, 2019 WL 3977545, at *4 (5th Cir.
Aug. 23, 2019). Further, '[i]n contrast to the federal
procedural requirements, the TCPA imposes additional
requirements that demand judicial weighing of evidence."
Id. "Because the TCPA imposes evidentiary
weighing requirements not found in the Federal Rules, and
operates largely without pre-decisional discovery, it
conflicts with those rules." Id.
a few days of the issuance of the Klocke opinion, we
received a letter from counsel, submitted pursuant to Federal
Rule of Appellate Procedure 28(j),
discussing Klocke's potential relevance to the
As part of its discussion, the Examiner Appellees
reiterate their assertion that Appellants have waived,
abandoned, or are estopped from asserting any objection to
the application of the TCPA in federal court. Moreover, the
Examiner Appellees argue, the district court's
orders of dismissal should be affirmed under FRCP 12(b)(6).
date, none of the other parties have submitted a FRAP 28(j)
letter regarding Klocke. We anticipate, however,
that the other Appellees likely agree with the
Examiner Appellees' position, whereas Appellants
will argue that their position is and always has been that
they, by conceding their state law claims involve
statements to which the TCPA applies (except for the assault
claim against Appellee Neil), did not concede, waive, or
abandon the argument that the TCPA's heightened
pleading/evidentiary standard runs afoul of the
pleading/discovery/evidentiary requirements of FRCP 8, 12,
and 56.  We need not resolve this particular
dispute, however, because we, like the district court, find
dismissal warranted under the Federal Rules of Civil
Procedure, for the reasons stated herein, without
consideration of the TCPA.
and Haynes assert RICO violations against various Appellees
pursuant to 18 U.S.C. §§ 1962(a), 1962(c), and
1962(d). These claims require Appellants to properly allege a
RICO "enterprise" and "pattern" of
"racketeering activity." The district concluded