IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRELL BOLTON, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-0501-D

VS. §

 §

CITY OF DALLAS, TEXAS, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this suit by a terminated Chief of Police under 42 U.S.C.

§ 1983 alleging that his Fourteenth Amendment rights to due process

and equal protection were violated when he was discharged rather

than reassigned to a lower rank, the dispositive question presented

by defendants’ motion for summary judgment is whether the conduct

of the City Manager who discharged the plaintiff is attributable to

the defendant City. Concluding that the City cannot be held liable

under § 1983 for the City Manager’s unauthorized departure from

City policy, the court grants defendants’ motion and dismisses this

case with prejudice.

I

This is an action by plaintiff Terrell Bolton (“Bolton”)

against defendant City of Dallas, Texas (“City”) and its former

City Manager, defendant Teodoro Benavides (“Benavides”). Bolton

served as Chief of Police of the Dallas Police Department (“DPD”)

from October 1, 1999 until Benavides terminated him on August 26,
1The court recounts the evidence in a light favorable to

Bolton as the summary judgment nonmovant and draws all reasonable

inferences in his favor. E.g., U.S. Bank Nat’l Ass’n v. Safeguard

Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater,

J.) (citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)).

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2003.1 Bolton alleges that the City and Benavides are liable under

§ 1983 for violating his Fourteenth Amendment due process and equal

protection rights. Specifically, he complains that defendants

violated these rights by terminating his employment rather than

reassigning him to the last civil service rank he held prior to

being appointed to the executive ranks of the DPD.

Appointment to the executive rank position of Chief of Police

is made at the discretion of the City Manager, who, during Bolton’s

tenure as Chief of Police, was defendant Benavides. In addition to

Chief of Police, the appointed executive ranks of the DPD include

the Deputy Chief of Police, Assistant Chief of Police, and any

other positions as may be created or designated by the Chief of

Police. The civil service ranks of the DPD are (in descending

order) Captain, Lieutenant, Sergeant, Senior Corporal, and Police

Officer. Unlike the executive ranks, promotions within the civil

service ranks require competitive service examinations.

Before his appointment as Chief of Police, Bolton had held the

executive rank positions of DPD Assistant Chief for eight years,

Deputy Chief for three years, Manager of Building Security for

approximately one year (a civilian position), and, before that, the

civil service rank of Sergeant. At the time he was appointed Chief
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of Police, Bolton had approximately twenty years of service with

the DPD.

In August 2003 Benavides determined that Bolton was unfit for

the position of Chief of Police and advised him that he had been

terminated. Bolton was not reassigned to a lower rank within the

DPD. In a letter, Benavides listed a “series of issues” that

caused him to determine that “new leadership for the [DPD was]

needed.” 2d Am. Compl. ¶ 18 (brackets in original). Benavides

conceded that he did not terminate Bolton for cause.

Following his termination, Bolton filed this lawsuit against

the City and Benavides, alleging that under Chapter XII, § 5 of the

Dallas City Charter, he had a protected property interest in

continued employment with the DPD and that, by arbitrarily and

capriciously denying him reassignment within the DPD, Benavides and

the City had violated his Fourteenth Amendment rights to due

process and equal protection. Chapter XII, § 5 of the Dallas City

Charter provides,

If the chief of the police department . . .

was selected to that position from the ranks

of the police department and is removed from

the position on account of unfitness for the

discharge of the duties of the position, and

not for any cause justifying dismissal from

the service, the chief . . . shall be restored

to the rank and grade held prior to

appointment to the position, or reduced to a

lower appointive rank.

Dallas, Tex., City Charter Ch. XII, § 5 (repealed 2005).

This lawsuit was initially assigned to another member of this
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court. Defendants moved for summary judgment, and the court

granted the motion, holding that Bolton lacked a constitutionally

protected property interest in further employment with the DPD.

Bolton v. City of Dallas, 2005 U.S. Dist. LEXIS 20543, at *8 (N.D.

Tex. Sept. 20, 2005) (Kinkeade, J.), rev’d in part, dism’d in part,

472 F.3d 261 (5th Cir. 2006). The Fifth Circuit reversed in part,

concluding that Chapter XII, § 5 of the Dallas City Charter did

create a constitutionally protected property interest in Bolton’s

continued employment at the rank and grade held before his

appointment to the executive position, and it remanded the case.

Bolton v. City of Dallas, Tex., 472 F.3d 261, 265 (5th Cir. 2006)

(“Bolton I”). The Fifth Circuit dismissed Bolton’s action against

Benavides in his individual capacity, concluding that Benavides was

entitled to qualified immunity because reasonable public officials

could have differed on whether discharging Bolton would violate his

constitutional rights. Id. at 266. Following remand and the

decision of the presiding judge to recuse, the case was reassigned.

Bolton filed a second amended complaint, and defendants obtained

leave to file a second motion for summary judgment. 

Defendants contend that the decision to terminate Bolton was

not arbitrary or capricious; Bolton did not have a property

interest in continued employment with the DPD because he was not

appointed to the executive ranks from the sworn ranks; Benavides is

entitled to summary judgment because the Fifth Circuit concluded in
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Bolton I that he is entitled to qualified immunity; Bolton’s claims

for punitive damages should be dismissed because punitive damages

are not recoverable under § 1983; and the City is not liable under

§ 1983 for Benavides’s decision to terminate Bolton’s employment.

Bolton opposes defendants’ motion.

II

The court begins with defendants’ contention that Benavides is

entitled to summary judgment insofar as he is sued in his official

capacity. Defendants maintain that the official-capacity claim

must be dismissed on the ground that it is duplicative of, and

merges with, Bolton’s action against the City. The court agrees.

A suit against a government official in his official capacity

is “only another way of pleading an action against an entity of

which [the official] is an agent.” Monell v. Dep’t of Soc. Servs.

of N.Y., 436 U.S. 658, 690 n.55 (1978). If the government entity

receives notice and an opportunity to respond, an “officialcapacity suit” is treated as a suit against the entity. Kentucky

v. Graham, 473 U.S. 159, 166 (1985). A suit against a municipal

official in his official capacity is not a suit against the

official personally, because the real party in interest is the

entity. Id. at 166. Thus there is no longer any need to bring

official-capacity actions. 

Accordingly, the court dismisses Bolton’s § 1983 claim against

Benavides in his official capacity. 
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III

 To recover against the City on his § 1983 claim, Bolton must

establish that the City is liable for Benavides’s conduct.

Defendants maintain that Bolton cannot meet this burden. Again,

the court agrees. 

A

Although municipalities are “persons” under § 1983, see

Monell, 436 U.S. at 690, they cannot be held liable simply on a

theory of respondeat superior, id. at 691. Rather, liability

obtains only “when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the

injury[.]” Id. at 694. “Normally, a plaintiff must identify a

policy or custom that gave rise to the plaintiff’s injury before he

may prevail.” Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525,

527 (5th Cir. 2006) (citing Canton v. Harris, 489 U.S. 378, 389

(1989)). “It is well-established, however, that a single decision

by an official can be grounds for section 1983 liability where the

decision was rendered by an individual with ‘final policy making

authority.’” Id. (citing Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989); Brady v. Fort Bend County, 145 F.3d 691, 698

(5th Cir. 1998)). “Where liability is based upon a single decision

by an official, ‘[a] court’s task is to identify those officials or

governmental bodies who speak with final policymaking authority for
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the local governmental actor concerning the action alleged to have

caused the particular constitutional or statutory violation at

issue.’” Id. (quoting McMillian v. Monroe County, Ala., 520 U.S.

781, 784-85 (1997) (some internal quotation marks omitted)).

“[T]he identification of those officials whose decisions represent

the official policy of the local governmental unit” is a question

of state law “to be resolved by the trial judge before the case is

submitted to the jury.” Jett, 491 U.S. at 737.

B

Defendants argue that the City is not liable for Benavides’s

decision to terminate Bolton as Chief of Police. They maintain

that Bolton cannot point to any facts regarding any official City

policy or custom that deprived him of his constitutional rights,

arguing that Benavides’s decision not to reassign him to another

position was an isolated incident that is insufficient to

constitute final official policy. Defendants next argue that

Bolton cannot establish liability against the City because he

cannot show that his termination and the failure to reassign him to

another position were the decisions of a policymaker. They posit

that to determine whether the City is liable, the court must decide

whether the injury was caused by the act of an employee taken

pursuant to his role as a policymaker or whether the conduct was

undertaken as a decisionmaker in execution of a policy for which

the City is the policymaker.
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Defendants argue that this case falls within the latter

category. They point to various provisions of the Dallas City

Charter that they allege establish that the City Council is the

policymaker for all City personnel policies. Defendants maintain

that although the City Manager is vested with discretion to appoint

and remove directors of departments, including within the DPD, he

is not the policymaker with respect to the City’s employment

policies. Rather, his responsibility is to implement the policies

set by the City Council. Defendants contend that the Civil Service

Board is the only entity authorized to make rules and regulations,

which are then subject to City Council approval; there is no

provision of the Charter that delegates policymaking authority to

the City Manager; although the City Manager is vested with

authority to hire and replace executive rank employees, that is as

far as his authority extends; and if Benavides exercised his

authority in an unconstitutional manner, the decision to act

unlawfully was not the decision of the City.

Bolton responds that proof that an individual lacked authority

to make other decisions is not relevant to the question whether he

was the policymaker with respect to the precise act at issue. He

maintains that defendants’ argument that the City Council was the

“real” policymaker fails because the City Charter specifically

forbids the Council from making a decision to remove the Chief of

Police.
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In reply, defendants point out that Chapter XII, § 5 of the

Dallas City Charter sets forth the policy of the City with respect

to removing and retaining executive rank officers, and that the

City Manager is responsible for administering that policy, which

Benavides did when he terminated Bolton. Defendants argue that the

City Charter vests all authority in the City Council and

establishes that the scope of the City Manager’s authority is

limited to the “proper administration of all the city affairs

placed in his hands.” Ds. Reply Br. 15 (bold font omitted)

(quoting Dallas, Tex. City Charter Ch. VI, § 2(1)). They therefore

maintain that Benavides was a decisionmaker, not a policymaker,

under authority conferred upon him by the City Charter, which made

him responsible to the City Council for his decisions. Defendants

therefore contend that if his decision to terminate Bolton was

wrong, it was not the decision of the City, and the City cannot be

held liable under § 1983.

C

The court will assume arguendo that Bolton’s Fourteenth

Amendment rights were violated when Benavides decided to terminate,

rather than reassign, him, as required by Chapter XII, § 5 of the

City Charter when a Chief of Police who is selected from the ranks

of the DPD is not terminated for cause. The court will also assume

arguendo that Bolton was selected from the ranks. Even so, Bolton

cannot establish that this alleged constitutional injury was caused
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by the “execution of a government’s policy or custom,” such that

the City is subject to liability under § 1983. Monell, 436 U.S. at

694. Bolton does not dispute that Benavides’s decision was an

isolated incident insufficient to constitute an “official policy”

of the City. See P. Br. 9 (pointing out that Bolton does not

contend that the City can be liable based on a “longstanding custom

or practice”). Consequently, to determine whether the City can be

held liable under § 1983 for Benavides’s decision, the court must

decide whether Benavides “possesse[d] final authority to establish

municipal policy with respect to the action ordered.” Pembaur v.

City of Cincinnati, 475 U.S. 469, 481 (1986). In other words, the

court must determine whether Benavides was a final policymaker with

respect to the precise act in question: terminating rather than

reassigning Bolton.

It is undisputed that Benavides had complete discretion to

remove Bolton from the position of Chief of Police. In fact, as

Bolton points out in his brief, the City Charter expressly forbids

the City Council from interfering with Benavides’s hiring and

firing decisions. It provides:

Neither the council nor any of its committees

or members shall dictate or attempt to dictate

any person’s appointment to, or removal from,

office or employment by the city manager or

any of the city manager’s subordinates, or in

any manner interfere in the appointment of

officers and employees in the departments of

administrative service vested in the manager

by this Charter.
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Dallas, Tex. City Charter, Ch. III, § 15. But the Charter does not

vest in Benavides any discretion regarding whether, after removing

the Chief of Police from that position, he should be restored to a

prior or lower appointive rank within the DPD. The Charter

explicitly provides that “the chief or the assistant shall be

restored to the rank and grade held prior to appointment to the

position, or reduced to a lower appointive rank.” Dallas, Tex.

City Charter Ch. XII, § 5 (emphasis added). “The word ‘shall’

implies that restoration to a lower rank and grade is mandatory.”

Bolton I, 472 F.3d at 265 (citing Valdez v. Cockrell, 274 F.3d 941,

950 (5th Cir. 2001)). 

“When an official’s discretionary decisions are constrained by

policies not of that official’s making, those policies, rather than

the subordinate’s departures from them, are the act of the

municipality.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988). Although Benavides was vested with discretion in deciding

whether to remove Bolton from the position of Chief of Police, his

ability to terminate rather than reassign Bolton was constrained by

the limitations of Chapter XII, § 5. 

In Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), which the

Fifth Circuit cited with approval in its recent decision in Barrow

v. Greenville Independent School District, 480 F.3d 377 (5th Cir.

2007), 
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the Seventh Circuit concluded that the Chicago

Police Chief, who by city ordinance had

unreviewable discretion to make personnel

decisions, would not have set city policy in

allegedly discriminating by race. Rather, the

Chief would have violated city policy,

embodied in another city council ordinance

generally forbidding racial discrimination in

hiring. 

Id. at 382. Specifically, the Seventh Circuit explained in

Auriemma that “[l]iability for unauthorized acts is personal; to

hold the municipality liable, Monell tells us, the agent’s action

must implement rather than frustrate the government’s policy.”

Auriemma, 957 F.2d at 400. 

As set forth in Chapter XII, § 5, it was City policy at the

time Bolton was discharged that when the Chief of Police is

selected from within the ranks and is not removed for cause, he is

entitled to continued employment with the DPD at his prior position

or at a lower appointive rank. As City Manager, Benavides was

“[t]o be responsible to the [city] council for the proper

administration of all the city affairs placed in the city manager’s

hands.” Dallas, Tex. City Charter Ch. VI, § 2(1). The proper

administration of all the city affairs would certainly have

required that Benavides follow the mandatory directives of the City

Charter. No provision of the City Charter gave Benavides the power

to make policies for the City in the area of employment or to act

in contravention of the mandates of the City Charter. Benavides

was vested under Chapter VI, § 2(3) with the power to remove heads
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of departments and subordinate officers and employees. But in

tasking the City Manager with the appointment and removal of all

heads of departments, the City Charter did not give Benavides any

final policymaking authority regarding what happened to these heads

of departments when another Charter provision mandated their

continued employment. In fact, Bolton advances several arguments

in his brief that inferentially defeat his contention that

Benavides was a final policymaker with respect to the decision to

discharge rather than reassign Bolton. See P. Br. 1 (arguing that

City Manager lacked discretion under City Charter to terminate

rather than demote Chief of Police who came from the DPD ranks and

was not discharged for cause), 6 (“Here, the City’s termination of

Bolton was clearly arbitrary and capricious —— given that this

action was contrary to law (i.e., the Dallas City Charter).”), 8

(“Benavides knew full-well that the Dallas City Charter required

that Bolton be demoted[.] . . . [H]e ignored the plain language of

the City Charter.”), 12 (“[Benavides] did not have the discretion

to simply flaunt the law. His decision to do so certainly has the

hallmarks of being both arbitrary and capricious.”), and 13

(referring to “the mandatory language of the Charter itself.”).

The court therefore concludes that Benavides’s failure to follow

Chapter XII, § 5 was an unauthorized departure from City policy

and, as such, varied from, rather than represented, City policy.

See Auriemma, 957 F.2d at 400. The decision to discharge rather
2Having determined that neither Benavides nor the City can be

held liable for Bolton’s alleged constitutional deprivations, the

court need not address defendants’ other grounds for summary

judgment.

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than reassign Bolton was a departure from the City’s expressed

policy, not an exercise by Benavides of final policymaking

authority. 

Accordingly, the court holds that the City cannot be held

liable for Benavides’s failure to restore Bolton to the rank and

grade he held prior to his appointment to the position of Chief of

Police, or his failure to reduce him to a lower appointive rank.

The court therefore grants defendants’ motion for summary judgment

dismissing Bolton’s § 1983 claim against the City.2

* * * 

For the foregoing reasons, the court grants defendants’ May 7,

2007 motion for summary judgment and dismisses Bolton’s § 1983

claims against Benavides in his official capacity and against the

City. This case is dismissed with prejudice by judgment filed

today. 

SO ORDERED.

August 17, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE