### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-11198

R. SCOTT PHELAN, Plaintiff–Appellant/CrossAppellee/Appellee
v. H. SCOTT NORVILLE; PAMELA EIBECK; ELIZABETH HALL; VICTOR MELLINGER; ERNST KIESLING; DANIEL PERKINS,Defendants–Appellees/CrossAppellants TEXAS TECH UNIVERSITY, Defendant–Appellant

Appeals from the United States District Court for the Northern District of Texas USDC No. 5:10-CV-29

Before BENAVIDES and P RAD O , Circuit Judges, and ALVAREZ, District * Judge. EDWARD C. PRADO, Circuit Judge: ** U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Februa ry 10 , 20 12 Lyle W . Cayce Clerk

D ist ric t Judge of the Sout hern Di st ric t of Texas , sit ting by d es ignati on. *

Purs uant to 5 T H C IR

. R. 47.5 , the court has det erm ined that this opi nion sho uld not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-11198 Document: 00511755638 Page: 1 Date Filed: 02/10/2012No. 10-11198

Plaintiff

– Ap p e llant Scott Phelan was a tenure-track professor at Texas Tech University who was give n a n o n -reappointment notice and a terminal contract before achieving tenure. He sued Texas Tech and separately sued

severa l T e x as Tech employees in Texas state courts, and his suit against the employees was removed to federal court after he added federal claims. On appeal, he al l e g e s that the defendants are liable under 42 U.S.C. § 1983 for depriving him of his right to trial by jury and to due pr o c e s s i n the state court proceedings. Phelan argues that the defendants submitted false affidavits to the state courts and suppressed critical evidence, and that this wrongdoing caused the Texas state courts to grant summary judgment for the defendants. The defendants also appeal the judgment of the district court dismissing
some, but not all, of Phelan’s claims against the individual defen d a n t s under Texas Civil Practice and Remedies Code section 1 0 1

. 1 0 6 ( e), which requires a court to dismiss a suit against government em p l o y e e s upon motion by their government employer when a plaintiff brings claims against both parties in one suit. The defendants argue that this provision requires dismissal of all claims brought against the government employees, not only those claims that were filed against both the government employees and the governmental entity. For the reasons stated below, we AFFIRM. I. BACKGROUND Phelan began working at Texas Tech Univ e r sity in a non-tenure-track position in December 1998 and became a tenure-track Assistant Professor in 2001. At some point during his employment with Texas Tech, Phelan became concerned that the C h air o f the Civil Engineering Department, H. Scott Norville, “might be using university time, personnel and property fo r his [outside] consulting business,” and Phelan reported this concern to the Dean and Associate D ean of Engineering. Phelan alleges that in November 2004, “[s]hortly after” Norville learned that Phelan had reported his use of university

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equipment, Norville hit him twice on the cheek to illustrate a concept during a conversation about blast research. I n S p ring 2005, certain Texas Tech faculty began discussing the p o s s ib ility of non-reappointing Phelan. On May 9, 2005, Norville told Phelan that he would not be reappointed. Norville and several other of the defendants met on May 20 “to finalize the details of issuing a terminal appointment to Dr. Phelan.” During this meeting,

a Texas Tech police officer delivered a copy of an assault complaint that Phelan had filed against Norville t he previous day, apparently stemming from the November 2004 hit on the cheek. On May 26, 2005, Phelan was given a formal notice of non-reappointment and was offered a terminal, one-year appointment, to end in May 2006. Phelan appealed his non-r e a p p o i n tment to a faculty committee, which upheld the decision, and on Au gust 12, 2005, Phelan submitted his resignation from Texas Tech. Phelan filed suit against Texas Tech in the 200th District Court of Travis County, alleging that his non-reappointment violated the Texas Whistleblower Act and his due process rights. Phelan v. Tex. Tech Univ. , No. 07-07-0171-CV, 2008 WL 190741, at *1 (Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem. op.). Phelan argued that the non-reappointment de c i s i o n was made in retaliation against him for reporting both the assault and Norvi l l e ’s use of university property for personal gain. The state d i s t r i c t court granted Texas T e c h summary judgment on all of Phelan’s claims and the Texas Court of Appeals affirmed. Phelan’s petition to the Texas Supreme Court for review was denied. Phelan also sued Norville, Dean of Engineering Pamela Eibeck, Assistant Provost of Texa s Tech Elizabeth Hall, and Texas Tech General Counsel Victor Mellinger in the 237th District Court of Lubbock County under various theories i n c l u d i ng assault, libel and slander, and tortious interference with contract.

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Norville v. Phelan , No. 07-07-0035-CV, 2008 WL 19 0 576, at *8 n.13 (Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem. op.). The defendants moved for summary judgment, which was denied as to all defendants except Mellinger. The remaining defendants appealed on all claims, and the S eventh Court of 1 Appeals of Texas in Amarillo reversed as to all defendants and claims except the libel and slander claims against Norville. Norville , 2008 WL 1 9 0 5 7 6 , at *14. Phelan’s petition to the Texas Supreme Court for review was denied. Phelan made a motion to compel in the 237th District Court of L ub b o c k County, where a few of his claims remained pending, seemingly in response to having “learned that [the defe n d a n t s ] had suppressed crucial evidence in his whistleblower case and because of [the defendants] having filed

. . . false affidavits to support their Motions for Summary Judgment in both state district courts.” The motion was heard and the court ruled that Phelan would be permitted to re-dep o s e t h e defendants “on the matter of emails (i.e., their existence, their location now, backup of same, who sent to [who m ] a n d when, content, etc.) as well as the circumstances and content of affidavits executed by defendants following such defendants’ first depositions.” Phelan amended his p e t ition to the state district court to assert a claim
ag a i n st the defendants under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–1962 (“RICO”), “for obstructing justice by filing false affidavits and by suppressing crucial e vi d e n ce in the state court proceedings.” The defendants then filed a Notice of Removal in th e U n i ted States District Court for the Northern District of Texas. In his First Amended Complaint befo r e t he district court, Phelan named Norville, Eibeck, Hall, Mellinger, Associate Dean of Engineering Ernst Kiesling, Assistant Attorney General Daniel Perkins, and Texas Tech as defendants. The complaint restated

Theon ly d enial of sum mar y judgm ent thatw as not app ealedw as the ass ault clai m 1 agains t Norville. Nor vi lle , 2008 WL 1 90576, at*1 n. 1. 4 Case: 10-11198 Document: 00511755638 Page: 4 Date Filed: 02/10/2012No. 10-11198

Phelan’s RICO claim and several state-law claims including common-law fraud, fraud on the court, assault, libel, and slander. Phelan also a d d e d for the first time a claim under 42 U.S.C. § 1983, claiming that the defendants violated his Seventh Amendment right to trial by jury and his Fourteenth Amendment right to due process of law by filing false affidavits and suppressing crucial evidence in the state court proceedings. The defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). R e l yi n g on Texas Civil Practice and Remedies Code section 101.106(e)—which provides that wh e n a s uit i s f il e d a gainst both a governmental unit and its employees, the governmental unit may immediately seek the dismi s s a l of its employees from the suit—the district court dismissed with prej u d i c e all state-law claims that Phelan had filed against the individual defendants that were also filed against Texas Tech. The court then remanded 2 the remaining state-law claims for assault, libel , a n d slander against Norville (claims w h ich had not been brought against Texas Tech) to the state district court. The court also held that Phelan had failed to plead facts giving rise to a

3 cause of action under RICO. As to the § 1983 claim, the district court held the following: (1) sovereign immunity barred the suit again s t Texas Tech and the individual defendants (whom the court held were being sued in their official capacities), and (2) any depriva t ion which Phelan may have suffered was preceded by procedural due process. The district court entered judgment on its order on August 16, 2010.

The st ate- law clai ms agains t Texas Tech we re als o dis mi ss ed beca use they allege d 2 i n tent ional tor ts , wh ich are barr ed wh en brou ght agains t governm enta l units by the Tex a s TortClai ms Ac t. Tex. Civ. Prac

. & Rem

. Code§ 101. 021. Altho ugh Phelan had als o brou ght a sland er cla im agains t Eibec k, the dist ric t cour t 3 note d that the Sevent h Court of App eals had alre ady held that she wa s im mun e fr om the sui t, and it dec linedt o a llowPhe lan to coll ater ally att ackt hat hold ing. 5 Case: 10-11198 Document: 00511755638 Page: 5 Date Filed: 02/10/2012No. 10-11198

On August 22, 2010, Phelan made a 5 9 (e) motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). T he motion primarily challenged the d i s t r i ct court’s holding that the individual defendants had been sued in the i r official capacities and that sovereign immunity therefore applied; Ph e l an ar gu ed that he had sued the individuals in their individual capacities and that at most qualified immunity would apply (although he also argued that qualified immunity should not apply because it had not been pleaded by the defendants). The district court considered whether Phelan had stated a claim under § 1983

a g a i n st the defendants in their individual capacities. The court stated th a t i t had dismissed Phelan’s § 1983 claims because he was “merely re-packaging his prior claims brought in state court.” It also noted that the defendants would be entitled to “absolute immunity for their witness statements i n s tate court.” It thus denied Phelan’s mo t i o n to alter or amend the judgment. Phelan timely appealed. On December 6, 2010, the defendants also appealed the judgment of

4 the district court denying Norville’s motion to dismiss the claims of assault, libel, and slander against him. II. DISCUSSION The district court had jurisdiction over this case under 28 U.S.C. § 1331. This court has jurisdiction pursuant to 28 U.S.C. § 1291. A. Section 1983 Claim “We review de novo a district court’s dismissal for failure to state a claim under Rule 12(b)(6).” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “‘To survive a motion to dismiss, a complaint must contain sufficient f

a c t u a l m a t t er, accepted as true, to state a claim to relief that is

Phelan’ s Not ice of App eal sp ecif ies that the one iss ue he is app ealing is the dis mi ss al 4 of his § 1983 claim agai nstt he individuald efe ndant s. Phelan do es not app eal thedis mi ss al of his clai ms agains t Texas Tech, nor does he app eal the dism iss al of his RICO clai m nor the dis tri ct cour t’s rem and of his ass ault, lib e l , a n d sla nder clai ms agains t Norville to the st ate dis tri ct cour t. 6 Case: 10-11198 Document: 00511755638 Page: 6 Date Filed: 02/10/2012No. 10-11198

plausible on its face.’” Frame v. City of Arlington , 657 F.3d 215, 222 (5th Cir. 2011) ( en banc) (quot i n g A s h c rof t v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted)). A claim is facially plausible where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 129 S. Ct. at 1949. Phelan appeals the district court’s 12(b)(6) dismissal of his claim against the individual defend a n t s u n d e r § 1983. “To state a claim under § 1983, a plaintiff must allege facts showing that a person, acting under color of state law, deprived the plaintiff of a ri ght, privilege or immunity secured by the United States Constitution or the laws of the United States.” Bryant v. Military Dep’t of Miss. , 597 F.3d 678, 686 (5th Cir. 2010). Phelan alleges that he was deprived of two distinct rights as a result of the defendants’ actions: (1) his right to a trial by jury and (2) his right to due process. Phelan argues that the defendants intentionally f

i l ed false affidavits and suppressed crucial evidence during the state court proceedings in this case, and that this conduct caused the state court to award s u m mary judgment to the defendants, thus denying Phelan the opportunity to present his case to a jury and denying him due process. Phelan’s claim fails because he has not identified a federal right of which he has been deprived. He argues that he was deprived of a right to trial by jury guaranteed by the Seventh Amendment because the defendants’ conduct led to 5 his state claim being disposed of on a motion for summary judgment rather than being heard by a jury. However, the Seventh Amendment right to trial by jury in a civil ca s e h a s not been incorporated against the states. See McDonald v.

Phelan als o argues that the right to a jury tri al is guarant eed by the Texas 5 C o nst itut ion. Sec tio n 1983, how ever, pr ovide s a rem edy only for the dep rivat ion of right s se cur ed by the Uni tedStat es Const itut ion and fe der al law s. Brya nt , 597 F.3dat 686. Stat e cons tit utio ns do not pr ovide a bas is fora § 1 983 clai m. 7 Case: 10-11198 Document: 00511755638 Page: 7 Date Filed: 02/10/2012No. 10-11198

City of Chi. , 1 3 0 S

. C t. 3020, 3035 n.13 (2010) (identifying “the Seventh Amendment right to a jury trial in civil cases” as one of the “only rights not fully incorporated” against the states). Thus, a jury trial in a state civil case is not a right secured by the Constitution, so it cannot provide a basis for a § 1983 claim. Phelan also argues that the defendants’ conduct deprived him of his right to due process under the Fourteenth Amendment. We have stated t h a t the 6 “constitutional right to due process is n o t

. . . an abstract right to hearings conducted according to fair procedural rul e s . Rather, it is the right not to be deprived of life, liberty, or property without such procedural protections.” Monk

v. Huston , 340 F.3d 279, 282–83 (5th Cir. 2003). Consequently, “[t] o b r i ng a p r o c e d u ral due process claim under § 1983, a plaintiff must first identif y a protected life, liberty or property interest and then prove that govern m e n tal action resulted in a deprivation of that interest.” Baldwin v. Daniels , 250 F.3d 943, 946 (5th Cir. 2001). It is unclear whether Phelan’s due process argument i s d i r ected at the
process employed durin g h is state-court trial or during the appeal of his nonreappointment at Texas Tech. To the e x t e n t that Phelan complains of not receiving a trial on the merits in state court, he has failed to allege that he has

a protected life, liberty, or property interest in having his claim tried on the merits or in achieving a particular outcome at trial. He argues in his brief that

Phelan nowher e ide ntif ies wh ethe r his clai m is bas ed upon sub st antive due proc es s, 6 pr oce dur al due pr oce ss , or both

. Ho we ver, his clai m se em s to be pr oce dur a l l y foc use d: he argues that the def

enda nts violat ed his “co nst itut ional due pr oce ss right s . . . thr ough fla grant pr oce dur al mi sc ondu ct, ” and he lis ts sever al st eps in the univers ity and judi cial pr oce edi ngs wh ere he allege s that the d efe ndant s tre ated him unfa irly. The Sup rem e Court has st ated that sub st antive due pr oce ss “p revent s the governm ent fr om engaging in cond uct that sho ck s the cons cien ce or inte rf ere s wi th right s imp lici t in the conc ept of ord ere d lib e r t y .” Uni ted States v. Salern o , 481 U. S. 739, 746 (198 7) (int erna l quot atio n mar ks and cit atio n om itt ed)

. Phelan mak es no argum ent that the cond uct he com p l a i n s o f s hock s the cons cien ce or inte rf ere s wi th right s so fund ame ntal that they are im pli cit in the conc ept of ord ere d liber ty. Thus, w e agree wi th the dis tri ct cour t that Phelan has not “m et his ple adin g burd en for a sub st antived ue pr oce ss vio lati on. ” 8 Case: 10-11198 Document: 00511755638 Page: 8 Date Filed: 02/10/2012No. 10-11198

the source of his injury “is not the state court rulings but rather [the defendants’] conduct in obtaining those rulings.” This complaint about the fairness of the state court proceedings fails to identify a protected interest of which Phelan was deprived. Phelan’s claim also fails to the extent that he complains of the process he received when appealing his non-reappointment at Texas Tech. As the district court noted, the Seventh Court of Appeals held that “Phelan’s due process claims fail as a matter of law” because he had no property interest in his non-tenured position. Phelan , 2008 WL 190741, at *9. The court also held that Phelan had not been deprived of a liberty interest in his non-reappointment. Id. at *10–12. Therefore, a court of competen t jurisdiction has already held that Phelan was not deprived of a protected interest by his non-reappointment at Texas Tech and that he has no due process claim. Issue preclusion dictates that this court not review that judgment. 7

Iss ue pr eclu sio n “p revent s reli tigat ion of par tic ular iss ues alre ady res olved in a pr ior 7 sui t. ” Barr v. Res olu tion Trus t Corp

. ex rel

. Sunbel t Fed. Sav

. , 837 S. W.2 d 627 , 6 28 (Tex. 1992)

. “To det erm ine the pr eclu sive eff ect of a st ate cour t judgm ent in a fed eral act ion, fed eral
cour ts mus t app ly the law of the st ate fr om wh ich the judgm ent em erged .” Bla ck v. N. Panol a Sch. Di st. , 461 F.3d 584, 588 (5t h Cir. 2006) (int erna l quot atio n mar ks om itt ed)

. Und er Texas law , a par ty se ek ing to pr eclu de an iss ue fr om liti gation mus t pr ove that “( 1) the fac ts so ught to be liti gated in the fir st act ion we re full y and fai rly liti gated in the pr ior act i o n; (2) thos e f a cts we re es se ntial to the judgm ent in the fir st act ion; and (3) the par tie s w e r e c a s t a s adver sar ies in the firs t act ion. ” EagleProps ., Ltd. v
. Scha rba uer , 807 S. W.2 d 714, 721 (Tex. 1990)

. He re, the pa rti es had a full opp ort unity topres ent evid ence in the Texas st ate court s aboutwhet her Phela n had a p rot ect ed inte res t in his job atTexas Tech. The Sevent h Court of App eals held that Phelan’ s “d ue pr oce ss clai ms fai l[e d] as a mat ter of law ,” Phelan , 2008 WL 190741, at *9, hold ing that he had no pr ope rty inte res t in the job, id. , and that he had suf fer ed
no harm to any liber ty inte res t, id. at *10–12

. This conc lus ion wa s dis pos itive of Phelan’ s due pr oce ss clai m. The par tie s involved in this iss ue—Phelan and Texas Tech— are ide ntic al, and Phelan se ek s to have this cour t det erm ine the exact sam e iss ue—wh ethe r he wa s dep rived of
a pr ote cte d liber ty or pr ope r t y inte res t wi thou t due pr oce ss —t hat the Sevent h Court of App eals alre ady dec ide d agains t him

. Iss u e p r e c l u s i on bars suc h a coll ater al att ack on the fina l jud gmen t of a Te xas st ate cour t. 9 Case: 10-11198 Document: 00511755638 Page: 9 Date Filed: 02/10/2012No. 10-11198

Because Phelan h as failed to identify a federal right of which he was deprived, he cannot state a claim for r e l i e f u n d er § 1983. The district court therefore properly dismissed this claim. B. Section 101.106(e) Claim The defendants also appeal, arguing that the district court erred in dismissing only some of the claims against the individual defendants pursuant to Texas Civil Practice and Remedies Code section 101.106(e). The defendants
argue that section 101.106(e) requires dismissal of all of the claims that Phelan brought against the individual defendants. After dismissing all of Phelan’s f e d e r al claims, the district court stated that it was “declin[ing] to exercise its supplemental jurisdiction over the[] remaining stat e law claims” against Norville for assault, slander, and libel. A “federal district court has discretion to remand a properly removed case to state court when all federal-law claims have been eliminated and only pendent statelaw claims remain.” Hook v. Mor r i s on Milling Co. , 38 F.3d 776, 780 (5th Cir. 1994) (internal quotation marks omitted); see also 28 U.S.C. § 1367(c)(3). Such discretionary remands are appealable, Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc. , 554 F

. 3 d 595, 600 (5th Cir. 2009), and we review the decision to remand for abuse of discretion, id. at 601. “The general rule i s that a court should decline to exercise jurisdiction over remaining state-law claims when all f e d e r a l-law claims are eliminated before trial

. . . .” Id. at 602. This rule, however, is “neither mandatory nor absolute”;

we “must review the district court’s decision in light of the specific circumstances of the case a t b a r.” Id. We have held that remanding state-law claims after dismissing all federal-law claims is an abuse of dis c r e tion where the district court has “invest[ed] a significant amount of judicial resources in the litigation.” Id. ; see, e.g. , Batiste v. Island Records, Inc. , 179 F.3d 217, 227–28 (5th Cir. 1999) (holding t h a t the district court abused its discretion in refusing to exercise

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supplemental jurisdiction over state-law claims where they presented no novel

or complex issues of state law and the case had been pending in the district court for three years with trial scheduled to begin a month after the dismissal). Here, the Notice of Removal wa s f i l e d on February 19, 2010, and the district court entered its order dismissing all federal-law claims and remanding the remaining state-law claims on August 16, 2010. Thus, the case was pending in the district court for just less than six months. We conclude that the district court has not invested a significant amount of judicial resources on this c a s e , especially compared to the Texas state court, before which this case was pending for several years. Therefo r e , we hold that the district court did not abuse its discretion in remandi n g th e r e m aini n g s t at e -law claims to the Texas state court. 8 Because the district c o u r t properly exercised its discretion in dismissing the remaining state-law claims, we do not address Te x as Tech’s argument that section 101.106(e) required dismissal of all state-law claims. III. CONCLUSION We conclude that Phelan has failed to state a claim for relief under § 1983 and that the district court did not abuse i t s discretion in remanding the remaining state-law claims against Norville. AFFIRMED.

At oral argum ent, couns el for the def enda nts argued t h a t r em andi ng the clai ms 8 agains t Norville wo uld res ult in the dis mis sal of Texas Tech fr o m t h e l a w s uit and that ther efo re Texas Tech wo uld be unable to mo ve for di s m i s s a l of the clai ms agains t Norville unde r se cti on 101. 106( e). The Texas st ate cour t is in the bes t pos itio n to det erm ine the im pac t of the pr oce dur al pos tu r e o f t h i s c ase on Texas Tech’ s right s; in any event , this pos sib le
cons equenc e d oes no t caus e t he dis tri ct cour t’s r em and to be an abus e o f dis cre tio n. 11 Case: 10-11198 Document: 00511755638 Page: 11 Date Filed: 02/10/2012