could page eight she then incorporated that jurisdictional statement in each and every federal claim that she pled in her original complaint and you can see that on record page fifteen for the free speech claim the nine hundred and eighty one claim in the record page seventeen for the equal was the magistrate's report was adopted by the district court so each state step along the way we did point out that on page eight of the record or in paragraph four of our complaint we cited section one hundred and eighty three and they have nobody has said why investment court case this court held a mere passage of time is not for clued granted a motion to amend but it is only undue delay that forecloses amendment because the district court did not find any of the factors necessary to deny it you do fift shows that public employees who go outside of their job duties or speech outside of work out speak as citizens and if they speak on matters of public concern that they are entitled to the same constitutional protections as other members of the public here into the jail and this is acknowledged actually by the magistrate's report and record page five eighty two dollars saying that this that these job duties appeared to be more within the jail administrative sphere than within the jail or dispatch of spirit which was where as chain of command she was off duty in other words she was a civilian at the time of this conversation took place and she could have done anything about the clinton order because again they as was not in charge of getting commitment orders from judges to ensure that that didn't happen and so all of those factors weigh in favor of finding this was citizen speech because in go study it states that employees who make public statements outside the course of performing their official job duties retain some possibility of st amendment protection because that is the kind of activity in gates and by citizens who do not work for the government having conversation and then one of the explicit examples given in the ghost city case is discussing politics with a coworker here as camille was discussing on both violations that she saw at the edwards county jail with a coworker and that leads me to the next part of this which is how those june th and th conversations were matters of public concern under interesting as this court has held that any evidence of corruption impropriety or other malfeasance on the part of officials in terms of content clearly concerns matters of public importance here excuse me i was talking to whether it is about him it me about an individual being lawfully detained without a commitment order from a judge according to with your substandard performance of job duties but it's actually a lot more than that because it has to do with the other lawful deprivation of the person's th amendment constitutional right to liberty unless there's been due process of law so it would be similar to saying that  would list such a house was a deficiency in clerical paperwork involved substandard performance of duties that's true but there are also constitutional violations and they are also matters of public concern and for those reasons the june thought it had to do with sure i mean potentially covering up a crime with the assault of one of her deputies and covering up a crime is itself a crime under the texas penal code section thirty eight fund is there any factor that identifies the to whom in other words the recipient of the comment as as a factor on whether it's public or private be protected speak in it because in the instances you've cited i believe it relate to the plaintiff's talking to another a cohen a coworker about matters in the office at the jail does that make a difference at all whether it regardless of whether the coworkers on duty conversations among top workers while on duty or discussing politics may be entitled to st amendment protection and here we don't actually this isn't even a difficult issue because she is talking to people who are off duty this is a whole week off to the conversation went off the coworkers imagine going to a happy hour and discussing this stuff with your coworkers that's going to be obviously protected free speech of members of the public where the happy hour discussing corruption they saw at the edwards county sheriff's department and the shows came in the rest of  be a violation of their st amendment rights and so i guess there's sort of that to me and maybe in the i'm the only one that struggles with this but some vagueness in terms of protected speech there are obviously a variety of factors that go into it that aside from the content but it seems i think our set even mentions about the like you just said it whether it's a coworker or whether coworkers on duty or not again the content whether it's about politics or it's about an internal office scandal or a potentially scandalous set of facts in this case we don't have an employee who is going to let's say a local investigative reporter for the local paper or who's reporting it to an inspector general or to up the chain to some type of public integrity person here we have an employee talking to a coworker again whether on duty or off either one of them  about things in the office so i'm trying to draw the line on this one way or the other obviously you're arguing that it is st amendment protected speech made by the individual in her private capacity so i guess i'm trying to get you to put a little more definition on that well sure and you know what i would say is that's actually exactly what makes a private citizen speech talking to a coworker she had reported up the chain of if she had go into a charge it would i think be very clearly about being transferred to another job poster she didn't like it she was going to coworkers and getting them to sign petitions and writing questions etc but that that activity with that they participate in the campaigns or something of that sort it's been court said well that one may be a little troubling but the but the rest of the it's the circulation of it internally  essentially strip public employees of st amendment protections if you said that they could not talk with their coworkers about corruption malfeasance or impropriety bay had witnessed or without fear of being fired oh and that is just simply not supported by supreme court supreme court said they had some concerns about that particular issue i would say that it would have been an easy case for the supreme court if that had happened outside obviously the vice basic question of what is a lot of public speech and privacy and public concern and she isn't doing a lot of talking and a lot of speeches a couple workers and so on and so forth but that was unprotected and he could far from carrying a gun difficult to by now when when she also in this is occurring elsewhere so i mean i take it your argument at least says that you live for fourteen the nature of the cover up a crime would be a matter of public concern and it's occurring offsite distinguishing it from the crime which is not the same as clinic which took place while working during the day in an interesting conversation  duty you know while they were not working for joe unless were unless the court was going to say the public employees are always public employees regardless of whether it's demeaning you know during working hours or the never off duty from the public employee job  in a deposition that if you run a license plate check it has to be requested by a law enforcement officer it wasn't in this case this is actually done by miss w two of those of the five she's complaining to the sheriff and words about miss whitworth and when it came out that there was a license plate check that was on authorized that's when the sheriff looked into it said well it's going to take a look into it you can look at it through the computer who would log in to see who actually did this license plate check that was on authorized and it came out with that to the log in of rachel ischemia and she admitted that than that then she has to try to explain it by saying was someone else the st amendment violation of free speech of these five incidences which talking about the st twenty one dollars about the booking statement in the office on information state and these are conversations between is who was the her coworker was also a dispatcher talking about office operations those that type of in that type of speech is not a speech of a citizen on a matter of public concern and there this court has had numerous cases and i cited them in a brief for instance going back to davis versus mckinney that involved an internal auditors complaint with regard to one of the individuals having point ona graphy unit on the website of the computers of the office they held there was no constitutional violation because that congress sation in the report up the chain of command was about something that was occurring in the office williams versus dallas independent school district is where a coach was complaining internally in that how the money was being spent in the school that again he wasn't a citizen speaking in a matter of public concern because he was talking about the course and scope of of his duties and he was complaining about what he knew about the school district and how he knew the money was being spent but that was not a st in violation of gibson versus kirkpatrick is an interesting case this court has held in two thousand and fourteen buddy police chief who was fired by the mayor when the chief complained to the f b i that the mayor was using the gas card illegally that court protection because e g he was fired on the termination that was not speaking out as a citizen on a matter of public concern this court also and probably at most when we speak of a jury trial that some of the most of these were summary judgment cases but the other case i cited rodriguez st of city of corpus christi was actually a case that went to a jury trial it was city administrator was for fired for allegedly writing an account of corruption within the city and she was rewriting this complaint up the chain of command and she was terminated for it the trial court entered a judgment for the plaintiff and the the city appealed to this court this court reversed to try the the jury trial verdict for the plaintiff holding that the individual was not acting was not speaking out as a citizen because she was speaking about the course is called for duties as she saw as she saw the crux and allegedly in the city of corpus christi but that was not a st amendment speech protection with regard to that plaintiff and the court reversed the the jury the jury verdict wilson versus trey gays another case involving a deputy chief of police it was a two thousand and fifteen case from this court where interrogation rooms were being two hundred and forty seven being videotaped and the chief deputy thought there was something wrong with judgment that the chief deputy was not speaking as a citizen and i met a public concern it was part of his duties and part of his duties when he found out that one of the rooms in his interrogation room was being filmed but he brought that to the attention of the district attorney and because he was fired for that it was not a violation of the st and then the most read one of the most recent cases is mailing versus orleans parish where the plaintiffs complained again   st amendment protection in this particular case these five instances other than the two that were dreadfully made to the sheriff the other three we would call them in texas cheese may gossip these are gossiping between employees must estimate was trying to get ten what words in trouble and in her gossiping or trying to get in trouble but then she led the investigation as to why there was this insufficiently put it and i'm simply saying i get it if it's not mentioned or whatever but in this instance i mean looking edited pacifically references section one thousand and three dollars i mean it just seemed to me a pretty hyper technical view of the two you can't plead to section one thousand and eighty one case against an individual governmental employee either and that that's under the case of odin versus up to pee to town in mississippi that this court held held in in two thousand and one got oden up in a river i still don't understand how i mean be talking about pleading you know it's notice pleading and we've had all that and it just seems nobody's pleadingly i don't really get it where it's mentioned in there is because he's trying to circumvent title souther which is another argument that you can't do he's trying to circumvent it because he did time frames that expire in irby in this court in this irby versus all that said you can circumvent title seven by just seemed to me swimming upstream when the supreme court not enough and kicks it back and says wrong you know to say that where it's not mentioned here you're struck out that's the part that yes are you  circumvention of title seven it does there's no it there's no equal protection claim here she was fired because she violated policy plain and simple and there's really no other reason why she was fired in by going into these other converse for factor has to come in to play also one of the st and then there's no there's no reason the chair for the motivated shouldn't even know about it the only so the only two then that we're looking at is the direct communication she had directly with the sheriff and that wasn't the reason that was it was a think that the sheriff's own testimony is obviously reason why she was terminated because she violated policy it's in with regard to you know that the other aspect is the malicious prosecution claim this was  was no violation under whether we call it due process equal protection st amendment there is no violation of the constitution eighty page five hundred and ninety six when the employer was entitle to control the employee speech determines whether that speech was made pursuant to the employee's official duties so here the question is was sure eliot in title to control askin me a speech when she was working a nd job as an e m t having an off duty conversation with a coworker or why should i leave entitle to control asking me a speech when she had made a phone call to an off duty couple a coworker joanna radios to report what she believed to determination was directly related to the on up there was license jack o whatever or whatever and that you know these other claims are just sort of there my response would be that that particular issue  those a causal link or causation element to it and they didn't really argue that i could argue that we did i do it in the initial response to the motion for summary judgment but it wasn't brought up on appeal as far as i could tell in their response and it wasn't brought up by the district court or the the court never actually looked at the many complaint to say whether or not we would have defeated these alleged deficiencies and we don't think that the wording but to the extent that there are even potentially deficiencies simply allowing us to amend the complaint would be a way for us to fix that prejudice in futility and this is from the smear to the e m c corporation claims of this was the period of time here in this particular case i believe you are i was right there was an eighteen months almost two years or maybe even over two years i would