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

No. 12-40053

SONYA BRISCOE Plaintiff-Appellant
v. JEFFERSON COUNTY; BO ALFRED; MARIO WATKINS; KENNETH MINKINS Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas

1:11-CV-202

Before WIENER, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: * 

### Plaintiff-Appellant Sonya Briscoe appeals the district court’s dismissal of h e r § 1983 complaint alleging deprivations of rights secured by the First and Fourteenth Amendments. Briscoe also asks us to consider whether the district

c ourt erred when it denied her motion for leave to amend her complaint and, 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 Decem ber 7 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm ined t hat this op inion s hould 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. 

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subsequently, her motion for reconsideration. As Briscoe has either waived or failed to preserve each of her claims, we AFFIRM.

I. FACTS AND PROCEEDING S o n y a Briscoe alleged that she was fired from her post as an administrative secretary in Jefferson County, Texas’s Precinct 4 for expressing

concerns about unaccounted-for disappearances of fuel purchased by the County

– first to her Precinct 4 superiors, then to county auditors, and finally to an assistant district attorney (ADA). She also alleged that filing an injury report with human resources and seeking workers compensation for that injury contributed to her termination. Briscoe sued under 28 U.S.C. § 1983, contending that (1) the retaliation infringed her right to speak freely as a citizen on matters of public concern, and (2) sh e w a s deprived of liberty and property interests without due process of law. Defen d a n t s-Appellees are Jefferson County and three Precinct 4 employees (collectively, “Defendants”). In June 2010, they filed a motion under Rule 12(b)(6) to dismiss Briscoe's complaint for failu r e t o state a claim, or, alternatively, to “requ i r e [ Briscoe] to re-plead under Rule 8(a)(2)

. . . .” The 1 

### district court granted Defenda n t s ’ m o t i o n i n p a r t , dismissing under Rule 12(b)(6) Briscoe’s First Amendment claim of retaliation grounded in her internal reports of disappearing fuel and her efforts to seek recompense following her injury. The
court also required Briscoe to replead her claims that she was fir e d (1) in retaliation for her external communications, in violation of her F i r s t A m e n d m e nt

Bris coe never res pond ed t o D e f e n dant s’ mo tio n, allege dly beca use her couns el wa s 1 hos pit alized f

or tw o w eek s in late Jul y f ollo wi ng an acc ide nt in wh ich he brok e h is hip.


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rights, and (2) without due process, in deprivation of her Fourteenth Amendment liberty and property interests. 2 

### After six weeks passed without Briscoe amending h e r p l e a dings as instructed by the district court, it set a deadline for her to do so and warned that her action would be d i s m i s s e d with prejudice should she fail to comply. That deadline came and went, and when Briscoe attempted to submit h e r a m ended complaint two days late, th e c o urt denied leave to file it out of time. As it had warned, the court di s m i s s e d Briscoe’s case with prejudice under Rule 41 and, alternatively, under Rul e 1 2(b)(6), as Briscoe’s proposed amended complaint failed to remedy the pleading infirmities identified in the cour t’s earlier order, making further amendment futile. Briscoe filed a motion to reconside r u n der Rule 59, which the court denied. She now appeals those rulings.

3



### II. ANALYSIS On appeal, Briscoe purports to raise th r e e c l a ims of error by the district
court: (1) the dismissal of her claims against Defendants; (2) the d e n ial of her motion for leave to file an amended complaint after the court-imposed deadline had passed; and (3) the denial of her Rule 59 motion. Briscoe listed those claims under the heading “Statement of the Issues” in her opening brief and offered a condensed factual account of her time as a Precinct 4 employee, but she included only two pages of argument, and even then addressed only her First Amendment

Altho ugh it pur por ted to grant def enda n t s ’ “Rule 8(a) (2) mo tio n,” the cour t is bes t 2 unde rs too d to have grant ed a Rule 12(e ) mo tion for a mo re def init e st atem ent. Cf. 5C C HA R L E S A L A N W R IG HT & AR T HU R R. M IL L E R , F E DE R AL P R A C T IC E A N D P R OC E DU R E § 1378 (3d ed. 2012) (“ In acc ord ance wi th the bas ic phil os ophy of the fed eral rule s, t h e g e n e r al att itud e of the
cour ts has been that a Rule 12(e ) mo tio n need not be fil ed unde r a tec hnica lly cor rec t label for it to be cons ide red as on e b y t he cour t. ”)

. Bris coe act ually mo ved for a “new tri al, ” wh ich the cour t rec harac ter ized as a mo tio n 3 to alte r or ame nd a jud gmen t pur sua nt to Rule 59(e ).


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claim. An issue not presented in the appellant’s opening brief is waived because

4 

### such failure denies the appellee the o p p o r tunity to respond. Briscoe, who is 5 

### represented by her trial counsel in this appeal, has failed to cite law or present argument in her opening brief to challenge the district court’s (1 ) d i s missal of her due process claims, (2) denial of leave to amend, or (3) denial of her Rule 59 motion. Consequently, we shall not consider those claims.

6 

### This leaves Briscoe’s challenge to the distri c t c o u r t’s disposition of her First Amendment claims as the sole issue before us on appeal. I n i t , B riscoe does not assert that communications made “up t he chain of command” at Precinct 4 find protection under the First Amendment; rather, she contends that in communicating her c o n c erns about the missing fuel to county auditors and the ADA, she was speaking as a private citizen, not as a public employee. It is ax i o m a t i c that the First Amendment “protects a public employee’s right, in certain circu m stances, to speak as a citizen addressing matters of public concern.” To establish a First Amendm e n t retaliation claim based on such

7 

### speech, a plaintiff must demonstrate that ( 1 ) he suffered an adverse employment

a c t i o n ; (2) he spoke as a citizen, and not as a public employee, on a matter o f public concern; (3) his interest in the speech outweighed the employer’s interest

Of thes e tw o pages , all but two s ente nces either dire ctl y quote an out- of- cir cuit case 4

or tra nsc ribe an unpub lis hed lect ure by a law s choo l p rof es so r des cri bing t hat cas e.
See Uni ted States v. Elas hyi , 554 F.3d 480, 494 n.6 ( 5th Cir. 2008); Uni ted States v. 5 Pom pa , 434 F.3d 800, 806 n.4 (5t h Cir. 2005) ; see al so Knighte n v. Com m’ r of Interna l Rev enue , 702 F.2d 59, 60 n.1 (5t h Cir. 1983) (“ It is impe rm iss ible to me ntio n an iss ue for the fir st tim e in a r epl y br ief, beca use t he app elle e t hen has no op por tunit y t o r es pond .” ).
See F E D

. R. A P P

. P. 28(a )( 9)(A) (ap pel lant’ s brie f mus t cont ain “co nten tio ns and the 6

reas ons for them , wi th cit atio ns to the autho rit ies and par ts of the rec ord on wh ich the app ellant reli es ”) ; Kohl er v. Engla de , 470 F.3d 1104, 1114 (5t h Cir. 2006) (is sue not ade quate ly brie fed wh en it fai led to inclu de any legal autho rit y sup po r t i n g app ellant ’s clai m) ; L & A Contra cting Co. v. S. Concr ete Serv s. , Inc. , 1 7 F .3d 106, 113 (5t h Cir. 1994) (is sue not ade quate ly br ief

ed wh en no autho rit ies w ere c ite d in a o ne- page argum ent)

. Ga rce tti v

. Ceba ll os , 547 U. S. 410 , 417 (200 6). 7


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in promoting efficiency; and (4) the speech precipitated the adverse employment action. When considering whether a public employee spoke as a citizen, courts

8



### are to ask, as a threshold matter, whethe r he spoke pursuant to his official duties ; if he did, then he was not speaking as a citizen for First Amendment
purposes, and his communications were not insulated from employer discipline. 9 

### Briscoe contends in her opening brief that she was fired for reporting the missing fuel to county auditors and the d i s t r i ct attorney’s office

– communications that she asserts were in the vein of citizen speech rather than employee grievances. Regarding her communications with county auditors, Briscoe contends

– for the first time on appeal – that the district court erred when it construed those communications as made “up the chain of command” and dismissed t h e claim accordingly. Defendants had maintained, in their motion to dismiss, that the speech at is s u e r elated to and arose out of Briscoe’s employment, which characterization Briscoe did not dispute, either in response to Defendants’ motion or in her own Rule 59 motion filed after dismissal. Having failed to raise this challenge in the district court, Briscoe may not do so on appeal. But, even 1 0 

### if she were permitted to do so, the allegations in her complaint belie her contentions to this court. Briscoe’s district court pleadings state that she worked “closely w i t h c o u n ty auditors

. . . to generate new and accurate [fuel supply] paperwork fo r t h e maintenance department.” Whether the auditors were in

Ni xon v. Ci ty o f Ho uston , 511 F.3d 494 , 497 (5t h Cir

. 2007)

. 8
Ga rce tti , 547 U. S. at 421; see als o Eliz ondo v. Parks , 431 F. App ’x 299, 303 (5t h Cir

. 9 2011) ( expla ining the Fift h Cir cuit ’s t es t, p os t- Ga rce tti ).

Stokes v. Eme rso n Ele c. Co. , 217 F.3d 353, 358 n.19 (5t h Cir. 2000) (“Argum ents not 1 0 rais ed in the dis tri ct cour t canno t be ass ert ed for the fir st tim e on app eal. ”) ; S T E P HE N A L A N C HI L DR E SS & M AR T HA S. D A V IS , 1 F E DE R

AL S T A N DA R DS OF R E V IE W § 6.03 (4t h ed. 2010) (“ [C] ourt s have deve lop ed the genera l rule that app lica nts may not ass ert fac ts or theo ries to the cour t of app eals that we re not urged bef ore the dis tri ct cour t. ”) ; see al so id. (“ The rule may have its s tri cte st ap pli cat ion wh en the ass ert ion fir st r ais ed on app eal is fac tual

. . . .” ).


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B r i s c o e ’s chain of command is not the dispositive consideration in identifying citizen speech protected by the First A m e n dment. We conclude from facts 1 1 

### stated by Briscoe that she sat down with the auditors as a Precinct 4 employee, bringing to bear her special knowledge of the Precinct’s record keeping policies. 1 2 

### The district court did not err in concluding that this was unprotected employee speech. 1 3 

### As for Briscoe’s letter to the ADA, the district court apparently agreed that it was not writt e n pursuant to official duties. Briscoe thus survived the threshold inquiry under G a r c etti

. But at the point where Briscoe ended her analysis, the court continued, considering whether the letter addressed a matter of public concern – a question distinct from whether Briscoe wor e the hat of a public servant or of a private citizen when she wrote it. It is this element of the 1 4 

### district court’s analysis that Briscoe should have addressed. As she has failed

See Wil li am s v. Da l l a s In d e p
. Sch. Di st. , 480 F.3d 689, 693 (5t h Cir. 2007) 1 1 (r eco gnizing t hat the Sup rem e Court ’s cas e law “d ist inguis h[e s] betw een sp eec h that is the ki nd of act ivity engaged in by ci t i z e n s wh o do not wo rk for the governm ent, and act ivitie s unde rta ke n in th e c o u r s e of per for mi ng one’ s job”) (int erna l cit atio n and quot atio n mar ks
om itt ed)

. Cf. id

. at 694 (d ist inguis hing cas e fr om Pic ker ing v. Bd. of Educ. , 391 U. S. 563 (196 8),

1 2 beca use “[ u]nl ik e Pick erin g, wh os e ‘po sit ion as a teac her in the dis tri ct did not qualif y him to sp eak w ith any gr eate r autho rit y than any other taxp ayer, ’ Willi ams had s pec ial kn ow led ge that $200 wa s rais ed at a bas ke tbal l tour nam ent [and he] wa s als o expe rien ced wi th st andar d ope rat ing pr oce dur es for athle tic depa rt me n ts .” ) (i n te rn a l ci ta tio n om itt ed) (quo ting Pic ker ing , 391 U. S. at 572 ).

W e a l so are unpe rs uade d by Bris coe ’s clai m that beca use she wa s not req uir e d t o 13

me et wi th the count y audi tor s, thos e com mun icat ions f e l l outs ide of her job dut ies

. See id. (“ Sim ply beca use Willi ams wr ote me mo rand a, wh ich we re not dem ande d of him , doe s not
me an h e w as not act ing w ithi n t he cour se of p erf orm ing hi s job. ”)

. S e e , e. g. , Da vi s v. McKinn ey , 518 F.3d 304, 316- 317 (5t h Cir. 2008) (d ist inguis hing 1 4 betw een the citize n-o r- em plo yee and pub lic- or- pr ivate inqu irie s, and inst ruc ting the dis tri ct
cour t to consid er on rem and wh ethe r sp eec h that wa s not job rela ted nevert heles s concer ned only pr ivate mat ter s)

. 

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to do so in her opening brief on appeal, this claim suffers the same waiver fate as her others. 1 5



### AFFIRMED.

The dis tri ct cour t reas oned that , per Conni ck v. My ers , 461 U. S. 138 (198 3), wh ethe r 1 5 Bris coe ’s com mun icat ions im pli cat ed mat ter s of publ ic conc ern mus t “be det erm ined by the cont ent, for m, and cont ext of a given st atem ent, as revea led by the wh ole rec ord .” Id. at 147- 48. The c ourt f

ound t hat for it t o b e p os itio ned to evaluat e t he cont ent, f orm , and cont ext of Bri s c o e ’s exter nal com mun icat ions , she had to “be sp ecif ic as to wh en her st atem ent or st atem ents we re mad e, to wh om they we re mad e, wh ethe r they we re oral or wr itt en, and the cont ent of thos e s tat em ents .” Whet her the co urt dem ande d mo re of Brisc oe than w as re quire d of her by Rule 8 is a ques tio n that we need not res olve, inas muc h as Bris coe ’s ope ning brie f fai led to chall enge the dis tri ct cour t’s inter pr etat ion of her ple adin g bur den. Les t ther e b e a ny d oubt , how ever, w e note that Rule 8 requ ires no mo re than “a sho rt and plai n st atem ent of the clai m sho wi ng that the ple ade r is enti tle d to reli ef. ” F E D

. R. C IV

. P. 8(a) (2)

. A plai ntif f may sur vive a mo tio n to dis mi ss by ple adin g suf fic ient f act ual mat eria l “ to st ate a c laim t o r elie f that is plau sib le on its fac e.” Bel l Atl

. Corp

. v. Tw om bly , 550 U. S. 544, 547 (200 7). This is wh y cour ts mus t tak e car e not to rec ast evide ntiar y st andar ds as ple adin g requ irem ents

. See i d

. a t 586 (S teven s, J., dis se nting) (“ [I]t sho uld go wi thou t sayin g
. . . that a height ened pr oduc tio n burd en at the
sum mar y judgm ent st age doe s not tra nsl ate into a height ened ple ad i ng burd en at the
com plai nt st age.” ); Swi erk ie wi cz v. Sore ma N. A. , 534 U. S. 506, 510- 12 (2002 ) (ho ldi ng that a plai ntif f wh o ass ert ed fed eral em plo ymen t dis cri mi natio n clai ms wa s not r e q uire d to ple ad fac ts es tabl ish ing a pr im a f acie case to sta te a claim for re lief, as the pri ma fac ie cas e u nder Mc Do nnel l Do ugla s “is an evide ntiar y st andar d, not a ple adin g requ irem ent” ); cf

. Leathe rm an v. Tar ra nt Cnty. Na rco tics Intell igen ce & Coord ina tion Uni t , 507 U. S. 163, 168 (199 3) (f indi ng it “im pos sib le to squ are” the Fift h Circ uit’ s st ringen t ple adin g st andar d in civil right s cas es allegin g mun icip al liab ilit y unde r § 1983 wi th the noti ce ple adin g st andar d in the Fede ral Rules ).


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