United States Court of Appeals

for the Fifth Circuit

No. 21-20009

Spec’s Family Partners, Limited, 

Plaintiff—Appellant,

versus

Dexter K. Jones; Emily E. Helm; Judith L. Kennison; 

Matthew Edward Cherry, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:18-CV-2670

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Per Curiam:*

Spec’s Family Partners, Limited (“Spec’s”) appeals from the 

district’s court dismissal of its 42 U.S.C. § 1983 suit against the Texas 

Alcoholic Beverage Commission (“TABC”) for failure to state a claim. We 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 26, 2021

Lyle W. Cayce

Clerk

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must decide whether the district court correctly concluded that qualified 

immunity required dismissal of Spec’s’ claim. We affirm.

I.

This case, now before us on appeal for the second time, arises out of 

an investigation and administrative proceedings initiated by the TABC

against Spec’s. The facts and procedural history are thoroughly laid out in 

our previous decision, so we confine our discussion to what is relevant to this 

appeal. See Spec’s Family Partners, Ltd. v. Nettles, 972 F.3d 671, 674–75 (5th 

Cir. 2020).

During the investigation, Judith Kennison and “other representatives 

of the TABC” allegedly concealed documents from Kathy Anderson, a 

TABC auditor, to obtain testimony from her that Spec’s violated the Texas 

Alcoholic Beverage Code. Kennison allegedly knew the documents did not 

establish any violation of the Code. Spec’s asserts that the TABC used 

Anderson’s testimony as leverage to force Spec’s to settle and to supplement 

its allegations against Spec’s. 

During the administrative proceedings, a panel of administrative law 

judges resolved some of the TABC’s charges in favor of Spec’s as a matter 

of law, and the remainder went to a hearing. At the multi-day hearing, Spec’s 

cross-examined Anderson, who stated that her earlier testimony was 

incorrect. The panel sided with Spec’s on all but one of the charges, for 

which it recommended a warning. 

Relevant here, Spec’s then sued several TABC employees, including 

Kennison, Emily Helm, Dexter Jones, and Matthew Cherry (collectively 

“Defendants”) under 42 U.S.C. § 1983, the Sherman Act, and state law, 

seeking declaratory and injunctive relief. 

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The district court dismissed all of Spec’s’ federal claims and declined 

to exercise supplemental jurisdiction over its state law malicious prosecution 

claims. We affirmed except as to Defendants’ claim that they are entitled to 

absolute immunity for actions taken during the investigation and before the 

administrative proceedings began. Spec’s, 972 F.3d at 680 & n.7. As to that 

claim, we held that Defendants were not acting in a prosecutorial capacity 

and therefore could not claim absolute immunity. Id. Thus, we remanded 

that issue. Accordingly, we also vacated the dismissal of Spec’s’ state law 

malicious prosecution claim on supplemental jurisdiction grounds. Id. at 

684.

On remand, Defendants filed a new motion to dismiss based on 

qualified immunity. The district court determined that Spec’s failed to show 

a violation of its constitutional rights and accordingly granted the motion to 

dismiss. The court again declined jurisdiction over the state law claims. 

Spec’s timely appealed. 

We review de novo a district court’s dismissal under Federal Rule of 

Civil Procedure 12(b)(6). Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 

260 (5th Cir. 2008). To survive a Rule 12(b)(6) motion to dismiss, Spec’s 

must plead “enough facts to state a claim to relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We “take the 

well-pleaded factual allegations in the complaint as true” but do “not credit 

conclusory allegations or allegations that merely restate the legal elements of 

a claim.” Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 469 (5th Cir. 2016).

II.

Spec’s alleges that Defendants violated its Fourteenth Amendment 

due process rights when they allegedly concealed evidence during the 

investigatory phase of the TABC proceedings. Specifically, Spec’s argues 

that the district court erred by “declin[ing] to extend due process protections 

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to an administrative case where there was a violation of Appellant’s 

constitutional rights.” 

Defendants assert qualified immunity. “When a defendant raises a 

qualified immunity defense, the plaintiff has the burden of demonstrating the 

inapplicability of that defense. To meet this burden, the plaintiff must show 

(1) that the official violated a statutory or constitutional right, and (2) that the 

right was clearly established at the time of the challenged conduct.” Turner 

v. Lieutenant Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quotations omitted).

Here, Spec’s fails to plead sufficient facts to state a claim that 

Defendants violated its constitutional rights. “To state a Fourteenth 

Amendment due process claim under § 1983, a plaintiff must first identify a 

protected life, liberty or property interest and then prove that governmental 

action resulted in a deprivation of that interest.” Gentilello v. Rege, 627 F.3d 

540, 544 (5th Cir. 2010) (quotations omitted). For the purposes of this 

appeal, we assume that Spec’s has a protected property interest.

To plead a procedural due process violation, Spec’s must plead 

sufficient facts to state a claim “that the deprivation of [its] property right 

occurred without due process of law.” Marco Outdoor Advert., Inc. v. Reg’l

Trans. Auth., 489 F.3d 669, 672 (5th Cir. 2007). As the Supreme Court has 

made clear, “the fundamental requirement of due process is the opportunity 

to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 

552 (1965)).

Here, Spec’s’ own complaint indicates that it received both notice and 

an opportunity for a hearing before a panel of administrative law judges. The 

panel resolved some of the TABC’s charges in favor of Spec’s as a matter of 

law. The panel then conducted a multi-day evidentiary proceeding at which 

Spec’s was able to rebut the TABC’s charges. Specifically, Spec’s crossCase: 21-20009 Document: 00515996657 Page: 4 Date Filed: 08/26/2021
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examined Anderson and elicited a favorable admission that her previous 

testimony was incorrect. Ultimately, the panel ruled for Spec’s on all charges 

except one, for which it only issued a warning. Spec’s does not cite a single 

case that holds that the plaintiff can state a procedural due process 

deprivation sufficient to survive a motion to dismiss where the plaintiff had

the opportunity to be heard in the administrative proceedings, crossexamined witnesses, and prevailed on all charges save for a warning.

Thus, we conclude that Spec’s has failed to state a claim for a violation 

of a constitutional right. Because Spec’s has not pleaded a violation, we do 

not address the clearly established prong.

Finally, a district court has discretion to decline supplemental 

jurisdiction over state law claims when it “has dismissed all claims over 

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). We review a 

decision to decline supplemental jurisdiction for abuse of discretion. See 

Batiste v. Island Records, Inc., 179 F.3d 217, 226 (5th Cir. 1999). Because the 

district court correctly dismissed all of Spec’s’ federal law claims, it did not 

abuse its discretion in declining to exercise supplemental jurisdiction over 

Spec’s’ state law claims.

Accordingly, we AFFIRM.

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