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Civil Rights 78 Briefs and Other Related Documents This case was not selected for publication in the Federal ReporterNOT PRECEDENTIALThis case was not selected for publication in the Federal Reporter.NOT PRECEDENTIAL Please use FIND to look at the applicable circuit court rule before citing this opinion. Third Circuit Local Appellate Rule 28.3(a) and Internal Operating Procedure 5.3. (FIND CTA3 Rule 28.0 and CTA3 IOP APP I 5.3.) United States Court of Appeals,Third Circuit. Sally BENNETT, Administratrix of the ESTATE OF David BENNETT, Appellant, v. Francis J. MURPHY, III, Individually and as a Pennsylvania State Police Officer of the Commonwealth of Pennsylvania; Mark F. Nowakowski, Individually and in his capacity as a corporal of the Pennsylvania State Police of the Commonwealth of Pennsylvania. No. 04-1643. Submitted pursuant to Third Circuit LAR 34.1(a) on Dec. 6, 2004. Decided Jan. 14, 2005. Background: Estate of suspect killed by state trooper brought § 1983 action alleging use of excessive force. On remand, 274 F.3d 133, the United States District Court for the W estern District of Pennsylvania, Arthur J. Schwab, J., granted summary judgment for trooper on qualified immunity grounds, and estate appealed.

1376(6)

78 Civil Rights 78III Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and Probable Cause 78k1376 Government Agencies and Officers 78k1376(6) k. Sheriffs, Police, and Other Peace Officers. Most Cited Cases "Immediate threat" standard for use of deadly force was sufficiently clear, in case of officer who shot armed distraught suspect who, although refusing to drop his weapon over course of hour-long standoff, had never pointed his single-shot shotgun at anyone but himself and who was not in flight at time of shooting, to warrant denial of qualified immunity from § 1983 liability. 42 U.S.C.A. § 1983.

*914 On Appeal from the United States District Court for the W estern D istrict of Pennsylvania. D.C. Civ. No. 94-214. District Judge: The Honorable Arthur J. Schwab. Vincent A. Coppola, Pribanic & Pribanic, Pittsburgh, PA, for Appellant. John G. Knorr, III, Office of Attorney General of Pennsylvania, Harrisburg, PA, for Appellee. Before AMBRO and VAN ANTW ERPEN, Circuit Judges, and SHADUR, FN* District Judge. FN* Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

Holding: The Court of Appeals, Shadur, Senior District Judge, sitting by designation, held that trooper was not entitled to qualified immunity. Reversed and remanded. W est Headnotes

OPINION OF THE COURT SHADUR, District Judge. **1 Sally Bennett ("Bennett") appeals the District Court's grant of summary judgment in favor of State Trooper Francis Murphy ("Murphy") on the ground of qualified immunity in Bennett's suit for damages

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following the fatal shooting of her son David Bennett ("David"). Because we conclude that the District Court erred in holding that the law regarding the use of deadly force was insufficiently clear as applied to the facts alleged by Bennett, we hold that Murphy is not entitled to qualified immunity. Accordingly we reverse the District Court's grant of summary *915 judgment in Murphy's favor and remand the case for trial.

136-37). In the interim Judge Robert Cindrich, the District Court judge who had been presiding over the case, announced his retirement and the case was reassigned to Judge Arthur Schwab. In a memorandum opinion dated February 20, 2004 Judge Schwab concluded in "Bennett III," No. 94-214, mem. order at 7 that "under the factual scenario asserted by the plaintiff, a reasonable police officer would not have understood that his actions were prohibited, nor would it have been clear to a reasonable officer what the law required." Because he thus held that Murphy was entitled to qualified immunity, Judge Schwab granted his motion for summary judgment. Bennett appeals, and we have jurisdiction under 28 U.S.C. § 1291.

Background Murphy shot David fatally following a prolonged armed standoff between David and police in a field near an apartment complex on January 4, 1994. Bennett brought suit in February 1994 under 42 U.S.C. § 1983 ("Section 1983"), alleging the use of excessive force by a police officer in violation of the Fourth Amendment. Following a trial on the merits in September 1996, the jury returned a verdict in Murphy's favor. Bennett filed a motion for a new trial one year later on the ground that information in Murphy's personnel records relevant to his credibility had been withheld during discovery. After the District Court granted that motion, Murphy in turn moved for summary judgment on the ground of qualified immunity. Concluding in "Bennett I," 127 F.Supp.2d 689, 699 (W .D.Pa.2000) that "Murphy is not entitled to qualified immunity on summary judgment because of disputes of fact and issues of credibility that should be submitted to a jury," the District Court denied that motion. During the pendency of Murphy's ensuing appeal to this Court, the Supreme Court decided Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), which definitively prescribed the analysis to be undertaken by courts facing claims of qualified immunity in excessive force cases. Engaging in Saucier's two-step analysis, we held in Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.2001) ("Bennett II") that the facts taken in the light most favorable to Bennett indeed showed a constitutional violation. But we remanded the case for the District Court to engage in the second step of the Saucier inquiry: whether the law regarding the use of excessive force, as applied to the facts alleged by Bennett, was clearly established at the time of the incident (Bennett II, 274 F.3d at

Murphy's Lack of Entitlement to Qualified Immunity **2 Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). After nearly two decades of further development of that doctrine, Saucier dictated a two-part inquiry to be used in determining whether an official is entitled to qualified immunity. At step one, the question is whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the official's conduct violated a constitutional right (533 U.S. at 201). If that question is answered in the affirmative, "the next, sequential step is to ask whether the right was clearly established" (id.). *916 Judge Cindrich's initial opinion in Bennett I, 127 F.Supp.2d at 690-91 (record citations omitted) summarized the facts alleged, viewed in the light most favorable to Bennett: The state police were called to the courtyard of a group of apartment buildings on the evening of January 4, 1994 to confront a man, David Bennett, who they soon learned was distraught at being unable to see his girlfriend. He was armed with a single shot shotgun

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that he held vertically in front of him, with the barrel pointed up at his head, and the stock facing down. He was "very deliberate in holding [the gun] toward himself or in the air," and did not point the gun at anyone, including state troopers. He said that he wanted to kill himself. As the troopers took up positions surrounding him in the open area between the apartment buildings, he became agitated and began moving toward a group of them, but stopped for perhaps four seconds before he was shot. Murphy was positioned 80 yards behind Bennett when he fired. Almost an hour passed between the time the state troopers first arrived on the scene, and the time Bennett was shot. W e adopted that version of the facts in Bennett II, and we do so again for purposes of the present qualified immunity inquiry. In terms of the first step of the Saucier analysis, Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) had earlier held that the use of force by police is subject to the Fourth Amendment and its "reasonableness standard." And Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) had still earlier made it clear that the use of deadly force by an officer is constitutionally unreasonable and violates the Fourth Amendment unless a felony suspect poses an immediate threat of physical harm to police or others. On that score we concluded in Bennett II, 274 F.3d at 136 that the facts alleged by Bennett demonstrated that David did not pose a threat to anyone but himself, hence the use of deadly force against him was objectively unreasonable. Although we did not then quote the summary of facts in Bennett I, 127 F.Supp.2d at 691 that compelled that conclusion, we find that statement unexceptionable: **3 Bennett admittedly was angry and defiant in the face of a group of determined, armed state troopers. But to take the version of the facts most favorable to Bennett, is it indisputably reasonable as a matter of law for a law enforcement officer 80 yards away; at night; under conditions of poor visibility; to shoot someone who is standing still; facing away; with a gun pointed at his own head, threatening suicide; surrounded by

heavily armed fellow officers in close proximity; out of fear of a threat to other troopers positioned at one third the distance; who were in a much better position to see the decedent; and who did not shoot; after almost an hour had passed with no offensive action by the state police? Because we not only agreed with the District Court's "no" answer to that question but affirmatively concluded that a constitutional violation had occurred under Bennett's version of the facts, we remanded for the District Court to consider whether David's Fourth Amendment right was clearly established, explaining the inquiry as follows (Bennett II, 274 F.3d at 136-37 (emphasis in the original)):[I]n the factual scenario established by the plaintiff, would a reasonable officer have understood that his actions were prohibited? The focus in this step is solely upon the law. If it would not *917 have been clear to a reasonable officer what the law required under the facts alleged, he is entitled to qualified immunity. If the requirements of the law would have been clear, the officer must stand trial.

As stated earlier, the District Court then concluded that the law with respect to excessive force was not clearly established as applied to Bennett's factual scenario. Its holding relied on two cases: M ontoute v. Carr, 114 F.3d 181, 185 (11th Cir.1997), and Leong v. City of Detroit, 151 F.Supp.2d 858 (E.D.Mich.2001). Both of those cases involved armed suspects as to whom, although they never pointed their weapons at police, the courts concluded that the police reasonably believed the suspects presented an immediate threat and that the use of deadly force was therefore justified. In light of those cases, the District Court accepted Murphy's argument that even though Graham and Garner clearly established the "immediate threat" standard, that standard was not clear as applied to David, who was armed and refused commands to drop his weapon. On appeal Bennett argues that the law of excessive force was not as murky as Murphy would have it and that the cases relied upon by the District Court, because they involved dramatically different factual scenarios, do not support its conclusion that M urphy reasonably believed the law entitled him to shoot David.

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At the outset we recognize that there is a degree of "duplication inherent in [Saucier's] two-part scheme" as applied to excessive force cases (Saucier, 533 U.S. at 213) (Ginsburg, J., concurring in the judgment). That is, the question whether the amount of force an officer used was unreasonable and violated the Fourth Amendment may be viewed as blending somewhat into the question whether the officer reasonably believed that the amount of force he used was lawful. But Saucier makes clear that the two inquiries are distinct: Even where an officer's actions are unreasonable under Graham's constitutional standard (as Bennett II held was true of Murphy's conduct), that officer is still entitled to immunity if he or she has a reasonable "mistaken understanding as to whether a particular amount of force is legal" in a given factual situation (Saucier, 533 U.S. at 205). M urphy thus asserts that even assuming his actions were constitutionally unreasonable, he made a reasonable mistake as to the legality of those actions. To support that assertion he puts forth two related arguments. **4 First, he contends that Garner's "immediate threat" standard, while clearly established, offered no guidance in the particular situation he faced. In that respect we are of course mindful of the principle, which the Supreme Court recently reaffirmed in Brosseau v. Haugen, --- U.S. ----, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004)(per curiam)(quoting Saucier, 533 U.S. at 201), that the inquiry whether an injured party's constitutional right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Applying that principle, Brosseau, id. at 599-600 stated that Graham and Garner "are cast at a high level of generality" and provided little guidance as applied to the situation confronting the officer in that case: "whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight." W e agree of course that Graham and Garner set out a standard that is general in nature in the context addressed in Brosseau. And we also agree with the District Court that there are circumstances, such as those in Brosseau, in which the "immediate threat" standard may be "subject to *918 differing

interpretations in practice" (Bennett III, mem. order at 7). But we cannot say that the Graham and Garner "immediate threat" standard is lacking in adequate substantive content as applied to the very different situation that Murphy addressed in Bennett's factual scenario: whether to shoot an armed distraught man who, although refusing to drop his weapon over the course of an hour-long standoff, had never pointed his single-shot shotgun at anyone but himself and who was not in flight at the time he was shot. FN1 As United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) teaches, "general statements of the law are not inherently incapable of giving fair and clear warning" to public servants that their conduct is unlawful. And because (as we held in Bennett II) the facts alleged by Bennett disclose no basis from which to conclude that David posed an immediate threat to anyone but himself, we conclude that this case is one in which the "general constitutional rule already identified in decisional law ... appl[ies] with obvious clarity to the specific conduct in question" (Id.).

FN1. Before David was shot, officers far closer than M urphy (who was fully 80 yards away and did not have full vision of the entire scene) had ordered him to halt (he had begun to move toward them, with the snow at the scene posing some difficulty in that regard). W itnesses whose testimony must be credited for present purposes swore that David had not only obeyed that "halt" order for a full four seconds when Murphy nevertheless chose to shoot him, but one of those witnesses said that David had actually taken a step backwards. And the duration of a time measured in seconds is seldom appreciated until one recites "one thousand and one, one thousand and two" and so on in a measured cadence to mark that passage of time. Murphy's second and related argument is that in light of what he terms "similar" cases involving deadly force, his mistaken application of the "immediate threat" standard was reasonable. Murphy cites two of those cases, M ontoute and Leong, in support of the proposition that he reasonably believed David could

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lawfully be shot because he had a weapon and refused to put it down. But in reality neither of those cases calls into question the rule, recognized as clearly established prior to this incident by the Ninth Circuit in Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir.1997), that under Graham and Garner "[l]aw enforcement officers may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed." FN2

W e simply cannot accept Murphy's position that Montoute shows him to have been reasonably mistaken about the legality of his actions in a factual matrix worlds away from the one confronting the officer in that case. That applies as well to Leong, where "[t]he officers in this case were faced with a situation where (i) Mr. Leong had led them on a chase through several streets and alleys; (ii) upon cornering the suspect, he fired his shotgun into the roof of his truck and emerged from his vehicle with this weapon; and (iii) Mr. Leong disregarded repeated warnings that he put down his gun, and instead racked his gun and invited the officers to shoot him" (151 F.Supp.2d at 868). It was in that factual context that the court said (id. at 866): Plainly, an armed and gun-wielding suspect can turn and train his weapon on an officer or bystander in an instant, with disastrous consequences. So Leong and its sharply different factual situation likewise offer no support for Murphy's contention that he made a reasonable mistake as to the legality of his action in killing David. Murphy cites a number of other cases in his brief in attempted support of his contention that he could not reasonably understand what the law required in the circumstances he faced. To the contrary, the contrast between the situations confronting the officers in those cases-cases such as Rhodes v. McDannel, 945 F.2d 117, 118, 120 (6th Cir.1991)(per curiam), Wilson v. Meeks, 52 F.3d 1547, 1549-50, 1552-54 (10th Cir.1995) and Sigman v. Town of Chapel Hill, 161 F.3d 782, 784-85, 786-88 (4th Cir.1998)-and the scenario in this case actually point in the opposite direction. On the facts as we must credit them, Murphy acted precipitately at a time and under circumstances totally lacking in the urgency posed by all of those cases: More than an hour had passed during the standoff with David, a period throughout which he had threatened to harm no one but himself; and when M urphy chose that instant to shoot to kill, David was at a standstill 20 to 25 yards from the nearest officer and fully 80 yards from Murphy himself. **6 Surely Murphy cannot rely on such cases, all of them involving suspects who unquestionably posed an

FN2. Although the District Court refused to consider Harris because it was decided in 1997, three years after this incident, that refusal was misguided-for Harris had analyzed the state of the law as it existed at the time of the infamous Ruby Ridge incident in 1992. W hile it is therefore true that Murphy cannot be charged with knowledge of the decision itself, Harris is nonetheless relevant to our own analysis of the state of the law in 1994 as to the use of deadly force by police. **5 As to Montoute, Murphy seizes on the court's statement (114 F.3d at 185) that "[a]t least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force." But the portion of the opinion immediately following that language (id.) demonstrates that the court's holding that the suspect posed an immediate threat did not rest upon the suspect's mere possession of a weapon, but rather on the use the suspect had made of his weapon: Sergeant Carr faced a situation fraught with danger. Montoute had fired an illegal weapon while in a crowd of people in a near-riot situation. He was armed with a 12-gauge, pistol-grip, sawed-off, pump shotgun. Such weapons are specifically*919 designed or altered, and frequently used, by criminals to kill people....Any officer would know that, and would know that pump shotguns can carry and fire more than one round....Montoute's unexplained refusal to obey the repeated orders to drop the sawed-off shotgun provided an additional basis for inferring that he presented a risk of serious physical injury to an officer or someone else.

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immediate threat of physical harm to police, in support of the contention that he reasonably believed it was lawful to shoot David, who posed no such threat. To be sure, those other cases may illustrate that the concept of excessive force "is one in which the result depends very much on the facts of each case" (Brosseau, 125 S.Ct. at 600). But as we have already explained, the facts alleged by Bennett, which we take as true for purposes of the qualified immunity inquiry, are such that any reasonable officer would understand, without reference to any other case law, that Graham and Garner prohibited shooting David. For that reason we conclude that Murphy is not entitled to qualified immunity.

Conclusion W e have determined on the record before us that Murphy is not entitled to qualified immunity. That of course is not the end of the matter-we reiterate our statement in Bennett II, 274 F.3d at 137 *920 that nothing precludes Murphy "from arguing that he reasonably perceived the facts to be different from those alleged by the plaintiff. An officer may still contend that he reasonably, but mistakenly, believed that his use of force was justified by the circumstances as he perceived them; this contention, however, must be considered at trial." W e thus reverse the District Court's grant of summary judgment in Murphy's favor and remand the case for a full consideration of Bennett's claims at trial. C.A.3 (Pa.),2005. Bennett ex rel. Estate of Bennett v. Murphy 120 Fed.Appx. 914, 2005 W L 78581 (C.A.3 (Pa.)) Briefs and Other Related Documents (Back to top) · 04-1643 (Docket) (Mar. 11, 2004) END OF DOCUMENT

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Briefs and Other Related Documents Only the W estlaw citation is currently available. United States District Court,N.D. Texas, Dallas Division. Kevin ELLIS, et al., Plaintiffs, v. Eddie CRAW FORD, et al., Defendants. No. Civ.A. 3:03CV2416D. March 3, 2005.

heritage. Plaintiffs allege that defendants Eddie Crawford ("Crawford"), Randy Hampton ("Hampton"), Terrell B olton ("B olton"), Roseanna Renaud ("Renaud"), June Kim Edwards ("Edwards"), Joe Gunn ("Gunn"), Rick Andrews ("Andrews"), and Scott Gerdes ("Gerdes") unlawfully retaliated against Bush for obtaining a promotion to the rank of sergeant through a settlement of a race discrimination suit against the City of Dallas ("City") and individuals in the Dallas Police Department ("DPD"). They aver that defendants retaliated against the other four plaintiffs because they appeared to support Bush.

Douglas R. Larson, Law Office of Douglas R. Larson, Mesquite, TX, for Plaintiffs. Janice Smith Moss, Dallas City Attorney's Office, Dallas, TX, for Defendants. MEMORANDUM OPINION AND ORDER FITZW ATER, J. *1 D efendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) presents the questions whether defendants are entitled to qualified immunity from plaintiffs' suit to recover under 42 U.S.C. § 1983 for alleged violations of the First and Fourteenth Amendments and whether plaintiffs have stated a claim for relief under 42 U.S.C. § 1985(2). For the reasons that follow, the court grants the motion in part and denies it in part and permits plaintiffs to file an amended Rule 7(a) reply.

I Plaintiffs Kevin Ellis ("Ellis"), Lee Bush ("Bush"), Tom Clayton ("Clayton"), Shawn W ash ("Wash"), and Steve Fuentes ("Fuentes") sue under 42 U.S.C. § 1983 to recover for violations of their First and/or Fourteenth Amendment rights to freedom from discrimination, retaliation, and/or equal protection of the law, FN1 and under § 1985(2) for conspiracy to violate their civil rights. FN2 Ellis and Clayton are Caucasian, W ash and Bush are African-American, and Fuentes is of Hispanic

FN1. Plaintiffs allege in their complaint that defendants acted "in violation of Title 42 U.S.C. § 1983[.]" Compl. ¶ 23. Section 1983 cannot be "violated." "Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. It is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere." Colson v. Grohman, 174 F.3d 498, 504 n. 2 (5th Cir.1999) (citation omitted). "Section 1983 provides that any person who, under color of state law, deprives another of any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress [.] Rather than creating substantive rights, § 1983 simply provides a remedy for the rights that it designates. Thus, an underlying constitutional or statutory violation is a predicate to liability under § 1983." Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.1997) (quoting, inter alia, Johnston v. Harris County Flood Control Dist. ., 869 F.2d 1565, 1573 (5th Cir.1989)) (citations and internal quotation marks omitted). FN2. Contending it is unclear whether plaintiffs intend to allege a claim under Title

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VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., defendants move to dismiss such a claim, if made. On January 31, 2005 plaintiffs filed a notice of error that indicates that the reference in their complaint to Title VII is mistaken. This notice also clarifies that plaintiffs are asserting claims solely under 42 U.S.C. §§ 1983 and 1985. Accordingly, the court need not address this ground of defendants' motion. According to plaintiffs' complaint and Rule 7(a) reply, after being passed over several times for promotion, Bush sued the City and several members of the DPD command staff, including former DPD Police Chief Bennie Click ("Click"). Under the terms of a settlement, Bush was promoted to the rank of sergeant. Before the case settled, the City promoted Bolton, who is also African-American, to the position of Chief of Police. Bolton replaced virtually all members of Click's command staff who had been responsible for the discrimination against Bush. All the persons who were formerly members of Click's command staff were members of the Dallas Police Association ("DPA"), a union that represents DPD officers. Defendant Crawford was the DPA Vice President. In February 2001 Bush was assigned to command the Interactive Community Policing ("ICP") Unit of DPD's Northwest Division. Each other plaintiff was also assigned to that Unit and was under Bush's direct supervision. Before Bush took over command, all six DPD ICP Units were treated similarly. Afterward, however, the Northwest Division ICP Unit was singled out for discriminatory and retaliatory treatment, including unfounded claims of misconduct, denial of the ability to earn overtime, and unfavorable work hours. Other ICP Units are not subjected to such treatment. Edwards, an Assistant Police Chief, commanded the Northwest Division. Bush's immediate supervisors were Renaud, Gunn, Andrews, and Gerdes, each of whom is Caucasian. Edwards, Renaud, Gunn, Andrews, and Gerdes are DPA members, as are the vast majority of DPD members. Many minorities perceive DPA to be racist, so many African-American and Hispanic officers

are members of other unions. DPA is the largest union, however, and carries the most clout with the DPD administration. Most DPA members objected to Bush's promotion. Plaintiffs allege that Crawford, Renaud, Edwards, Gunn, Andrews, and Gerdes are racists and are among the DPA members who resent Bush's advancement via a lawsuit in which he alleged racism. *2 The members of DPD upper management whom Bolton replaced were active members of the DPA. DPA perceived Bolton as having replaced union members whom Bush had accused of racial discrimination, and it resented Bush for his role in terminating several senior officers who were DPA members. DPA has great influence over the activities and operations of DPD because it is the largest police union and a majority of DPD supervisory officers are DPA members. DPD supervisory staff, including Bolton, Renaud, Andrews, Gunn, Gerdes, and Edwards, permit DPA officers to conduct union business while on duty. Crawford, as DPA Vice President, enjoys privileges not given other officers, including conducting DPA business while on duty. Because of his position in the DPA, he enjoys an aura of protection from criticism for misconduct and for performing DPA business while on duty. Just before Bush assumed command of the Northwest Division ICP Unit, Crawford vented his personal dislike for Bush to several division officers and made it clear that he did not want to serve with him and was against his assignment to the Division. He promised several DPA members that he had a plan to get rid of Bush when he arrived. W ash once observed Crawford attempt to gain unlawful entrance to Bush's locked office at the Northwest Division. Another officer was nearby. W hen W ash alerted them to his presence, they walked away. Later that same day, Ellis attempted to learn the role of the other officer who was present. Ellis and W ash made written reports of their observations and/or activities, and Bush submitted a complaint and reports to the DPD Internal Affairs Division ("IAD"). Fuentes and Clayton supported the actions of the other plaintiffs. Crawford obtained copies of the statements and/or complaints that Bush, Ellis, and W ash had made and

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posted them on a bulletin board at Northwest Division headquarters. He did this to signal to all DPA members that they should shun and retaliate against Bush and the other plaintiffs who associated with him and/or were persons who supported his IAD complaint. The posting also signaled that Bush and the other plaintiffs had violated the code of silence and that other DPD officers should join him in retaliating against Bush and any officer who supported him. And it challenged Bolton and Hampton not to take action against him because he and the DPA would view punishment of him as support for Bush and the other plaintiffs. Renaud, Edwards, Gunn, Andrews, and Gerdes joined Crawford in his retaliatory and racially-inspired actions against plaintiffs. Bolton and Hampton joined in the actions to avoid any direct attack against Crawford, a high profile DPA member. Bolton and Hampton thus failed to take action against Crawford for illegally attempting to enter Bush's office and failed to take action against Renaud, Edwards, G unn, Andrews, and Gerdes for taking racially-inspired and retaliatory actions against plaintiffs. Bolton and Hampton had received extensive criticism from DPA officials that Bolton had promoted minorities over more-qualified Caucasians. Bolton had also been criticized for the perception that he had been responsible for the favorable resolution of Bush's discrimination suit. *3 Plaintiffs later reported and complained about Crawford's retaliatory and racially-motivated posting of their complaint and statements. Each time they attempted to obtain relief from the racially-inspired retaliatory acts and treatment that Crawford instigated, Renaud, Bolton, Hampton, Edwards, Gunn, Andrews, and/or Gerdes refused to take any action to resolve or prevent the retaliatory treatment. Because of plaintiffs' submissions to IAD and the other defendants' failure to take action against Crawford for attempting to burglarize Bush's office and for his acts of retaliation in posting the documents, plaintiffs have been falsely accused of several acts of misconduct. FN3

Defendants Crawford, Hampton, Renaud, Edwards, and Gerdes FN4 move to dismiss under Rule 12(b)(6), contending they are entitled to dismissal of plaintiffs' claims under §§ 1983 and 1985 based on qualified immunity.

FN4. Defendants point out that Bolton, Gunn, and Andrews have not been served. They do not address the claims against these defendants, noting instead that the actions against them are subject to dismissal under Rule 4(m). T he court has not addressed plaintiffs' claims against these defendants, and it has today filed an order under Rule 4(m) that requires plaintiffs to show good cause why the actions against them should not be dismissed. II "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U .S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity likewise applies to state officials sued for constitutional violations under § 1983. See id. at n. 30 (citing Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)); Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir.1999). It also applies to a claim brought under 42 U.S.C. § 1985. See Kinney v. Weaver, 367 F.3d 337, 351-55 (5th Cir.2004) (en banc) (addressing whether defendants were entitled to qualified immunity from § 1985 claim); Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 556 (5th Cir.1997) (holding that defendant had qualified immunity as to claims under §§ 1983 and 1985). "The Supreme Court has characterized the doctrine as protecting `all but the plainly incompetent or those who knowingly violate the law.' " Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 284 (5th Cir.2002) (quoting M alley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

FN3. The court discusses below the actions that are relevant to its analysis of defendants' motion to dismiss.

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To decide whether defendants are entitled to qualified immunity, the court must first answer the threshold question whether, taken in the light most favorable to plaintiffs as the parties asserting the injuries, the facts they have alleged show that defendants' conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991))). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. "Even if the government official's conduct violates a clearly established right, the official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable." Wallace v. County of Comal, --- F.3d ----, 2005 W L 348155, at *3 (5th Cir. Feb.14, 2005). "The objective reasonableness of allegedly illegal conduct is assessed in light of the rules clearly established at the time it was taken." McClendon v. City of Columbia, 258 F.3d 432, 438 (5th Cir.2001); see Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir.2000). " `The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the' plaintiff's asserted constitutional or federal statutory right." Cozzo, 279 F.3d at 284 (quoting Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir.2001)). 051 Extra cent-Y found within cent-Y markup. *4 Plaintiffs were not required to anticipate the defense of qualified immunity and "provide greater specificity" in their complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir.1995) (per curiam) (citing Schultea v. Wood, 47 F.3d 1427, 1430, 1433-34 (5th Cir.1995) (en banc)). They were obligated initially to "file a short and plain statement of [their] claim pursuant to Rule 8(a)(2)[.]" Id. W hen, as here, defendants raised the affirmative defense of qualified immunity and the court required

that they file a Rule 7(a) reply, FN5 plaintiffs became obligated to augment their complaint with "a more particularized reply pursuant to Rule 7[.]" Id.; see Schultea, 47 F.3d at 1433. "[W ]hen a plaintiff sues a public official under § 1983, the district court must insist on heightened pleading by the plaintiff." Morin v. Caire, 77 F.3d 116, 121 (5th Cir.1996) (citing Schultea, 47 F.3d at 1433). "[T ]he reply must be tailored to the assertion of qualified immunity and fairly engage its allegations." Schultea, 47 F.3d at 1433. "Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff['s] injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). The case should not be allowed to proceed unless plaintiffs can assert specific facts that, if true, would overcome the defense. See Morin, 77 F.3d at 120 ("Public officials are entitled to qualified immunity from suit under § 1983 unless it is shown by specific allegations that the officials violated clearly established law." (emphasis added)); Schultea, 47 F.3d at 1434 ("The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity[.]"). "Schultea says that a plaintiff must first `support [ ] his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.' " Baker v. Putnal, 75 F.3d 190, 197 (5th Cir.1996) (quoting Schultea, 47 F.3d at 1434).6

FN5. The magistrate judge granted defendants' motion to require plaintiffs to file a Rule 7(a) reply. FN6. Relying on Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), plaintiffs maintain that their complaint satisfies the notice pleading standard of Rule 8(a)(2). T his argument is irrelevant. Swierkiewicz addressed the sufficiency of facts alleged in a complaint and did not pertain to what a plaintiff must allege to overcome the defense of qualified immunity. In this circuit, a district court may require a plaintiff to respond to a public official's assertion of a qualified immunity defense by way of a Rule

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7(a) reply. See Schultea, 47 F.3d at 1433. Schultea holds that the Rule 8(a) pleading standard is inapplicable to a Rule 7 reply. Id. "[T]he more exacting jurisprudence of Rule 7(a)" controls whether plaintiffs have alleged facts that are sufficient to overcome defendants' qualified immunity defense. Hoskins v. Kaufman Indep. Sch. Dist., 2003 W L 22364356, at *3 (N.D.Tex. Aug.25, 2003) (Fitzwater, J.). III Defendants contend they are entitled to dismissal of plaintiffs' First Amendment retaliation claim based on qualified immunity.

because all matters were raised internally as employment grievances or matters that involved their personal employment disputes. Defendants also maintain that plaintiffs have not shown that Ellis, Fuentes, and Clayton suffered an adverse employment action committed by Crawford, Hampton, Edwards, or Gerdes, that they have therefore failed to demonstrate that the actions of these four defendants amounted to a violation of clearly established law or a constitutional right of which a reasonable person would have known, and that they cannot overcome the defense of qualified immunity.

B The Fifth Circuit takes a "narrow view of what constitutes an adverse employment action[.]" Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir.2000). Included in the list of recognized adverse employment actions are "discharges, demotions, refusals to hire, refusals to promote, and reprimands." Id. (citing Pierce v. Tex. Dep't of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir.1994)). The court has also recognized that, in some circumstances, transfers can constitute adverse employment actions. See Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999) ("[F]or the purposes of a § 1983 retaliation claim, an adverse employment action can include a transfer, because it may serve as a demotion."); Breaux, 205 F.3d at 157 ("Transfers can constitute adverse employment actions if they are sufficiently punitive or if the new job is markedly less prestigious and less interesting than the old one." (citations omitted)). The court has suggested that disciplinary filings may also qualify under § 1983. See Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 580 (5th Cir.2003) (observing that "the definition of adverse employment action under § 1983 may include reprimands and disciplinary filings[.]"). But it has " `declined to expand the list of actionable actions, noting that some things are not actionable even though they have the effect of chilling the exercise of free speech.' " Breaux, 205 F.3d at 157 (quoting Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir.1998)). The Breaux panel explained that "[t]he reason for not expanding the list of adverse employment actions is to ensure that § 1983

A To establish a First Amendment retaliation claim under § 1983, plaintiffs must show: (1) that [they] suffered an adverse employment action; (2) as a result of speech involving a matter of public concern; (3) that [their] interest in commenting on the matter of public concern outweighed the [defendants'] interest in promoting efficiency, and (4) that the adverse action was motivated by the protected speech. Foley v. Univ. of Houston Sys., 355 F.3d 333, 341 (5th Cir.2003). Defendants maintain that none of plaintiffs' allegations concerning Bush and W ash asserts that a defendant took an adverse employment action against them, that plaintiffs have failed to show that any defendant violated clearly established law or a constitutional right, and that they cannot defeat qualified immunity for defendants Crawford, Hampton, Renaud, Edwards, and Gerdes. *5 Regarding Ellis, Fuentes, and Clayton, defendants posit that the only arguable adverse employment action is a reprimand that Renaud issued. They contend that, even assuming Renaud's reprimand constitutes an adverse employment action, these plaintiffs have not shown that their speech was a matter of public concern,

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does not enmesh federal courts in `relatively trivial matters.' " Id. (quoting Dorsett v. Bd. of Trustees, 940 F.2d 121, 123 (5th Cir.1991)).

personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Connick, 461 U.S. at 147; see Teague, 179 F.3d at 381 ("[S]peech concerning the conditions of one's employment is a private matter."). Cases can also involve so-called "mixed speech," i.e., speech that involves both public and private concerns. See Teague, 179 F.3d at 381.

C " `W hether the speech at issue relates to a matter of public concern is a question of law to be resolved by the court.' " Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 816 (5th Cir.2000) (per curiam) (quoting Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir.1994)). In making this determination, the court considers the " `content, form, and context of a given statement, as revealed by the whole court record.' " Teague v. City of Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir.1999) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). The court examines "whether the speech at issue in a particular case was made primarily in the plaintiff's role as citizen or primarily in his role as employee." Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.1986). The Fifth Circuit has distilled "three reliable principles" from its determinations regarding whether speech was a matter of public concern: *6 First, the content of the speech may relate to the public concern if it does not involve solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the manager's status as an arm of the government. If releasing the speech to the public would inform the populace of more than the fact of an employee's employment grievance, the content of the speech may be public in nature. Second, speech need not be made to the public, but it may relate to the public concern if it is made against the backdrop of public debate. And third, the speech cannot be made in furtherance of a personal employer-employee dispute if it is to relate to the public concern. Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 372 (5th Cir.2000) (citations omitted). Public employees' speech on matters of private concern in most instances will not support a First Amendment violation.W e hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of

IV The court initially considers whether plaintiffs have adequately pleaded FN7 that each defendant committed a retaliatory act that qualifies as an adverse employment action. Plaintiffs appear to rely on acts that affected them collectively and those that impacted them individually. The court will first address whether they have adequately pleaded that the actions that affected all plaintiffs are adverse employment actions.

F N 7 . U nless the co urt spec ific a lly differentiates between plaintiffs' complaint and their Rule 7(a) reply, it has considered both pleadings in assessing the adequacy of their allegations. A Plaintiffs assert in their Rule 7(a) reply that "[o]vertime and compensatory time is denied to all ICP Officers at Northwest per Chief Edwards," and that other ICP Units are permitted overtime. Rule 7(a) Rep. ¶ 20(jj). They also assert that, "[a]t all relevant times," they were assigned to the Northwest Division ICP Unit. They therefore appear to allege that Edwards denied all of them the opportunity to earn overtime and compensatory time. FN8

FN8. The period during which Edwards is alleged to have denied Northwest Division

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ICP Unit employees from working overtime and compensatory time is not stated explicitly. Plaintiffs aver that W ash was transferred to another unit on July 24, 2002. If Edwards' decision to deny overtime to Northwest Division ICP Unit employees occurred after this date, W ash apparently would not have been affected. Because plaintiffs allege that "at all relevant times" they were employees of the Northwest Division ICP Unit, this is sufficient to assert that W ash was employed there when Edwards allegedly prevented unit employees from working overtime and compensatory time. 1 This allegation is insufficient to serve as the basis for plaintiffs' First Amendment retaliation claim. To prove such a claim, plaintiffs must show, inter alia, that they suffered an adverse action that "was motivated by [their] protected speech." Foley, 355 F.3d at 341. They have not specified when Edwards made the decision to deny them overtime. This deficiency is fatal to the claim because, without specifying when Edwards made the decision, they have failed to show that she acted in response to plaintiffs' exercise of their First Amendment rights. *7 Although defendants have not included this ground in their motion to dismiss, the court may raise it sua sponte as a basis for dismissal as long as the procedure employed is fair to the parties. See, e.g., Coates v. Heartland Wireless Communications, Inc., 55 F.Supp.2d 628, 633 (N.D.Tex.1999) (Fitzwater, J.). To ensure fairness, the court will give plaintiffs 30 days from the date of this memorandum opinion and order to file an amended Rule 7(a) reply that addresses this deficiency.

FN9. The court's reasoning concerning overtime applies equally to plaintiffs' a llegations regarding the d enia l o f compensatory time as now asserted in their pleadings. Accordingly, the court will not discuss compensatory time separately from overtime. Citing Benningfield defendants maintain that the denial of overtime does not constitute an adverse employment action. Benningfield considered, inter alia, whether a plaintiff's allegation that she had "not received overtime and travel reimbursement due her" asserted an adverse employment action. Benningfield, 157 F.3d at 376-77. The court held that it did not, because her allegations involved "administrative matters." Id. at 377. Although it is not entirely clear from the opinion, it appears that the plaintiff in Benningfield actually worked overtime hours for which she was not paid. See id. at 376 ("[Plaintiff] contends that she ... has not received overtime and travel reimbursement due her." (emphasis added)). This is different from a scenario in which a plaintiff is prevented from working overtime in the first place. Benningfield thus does not address a case like this one, where plaintiffs appear to contend they were prevented from earning overtime.

3 The Fifth Circuit has not decided, in the context of a First Amendment retaliation claim, whether a denial of the opportunity to work overtime is an adverse employment action. This court has held, however, that such conduct is an ultimate employment decision that will support a Title VII retaliation claim. See Hadad v. Am. Airlines, Inc., 2003 W L 292170, at *7 (N.D.Tex. Feb.7, 2003) (Fitzwater, J.) (denying summary judgment on Title VII retaliation claim because plaintiff "adduced evidence of at least one ultimate employment decision-a denial of overtime[.]"); Williams v. J.B. Parks Wholesale Florist, Inc., 1997 W L 160194, at *1, *5 (N.D.Tex. Mar.31, 1997) (Fitzwater, J.) (holding in Title VII retaliation context that plaintiff's allegation that overtime was reduced was actionable because it related to compensation and "caused an immediate reduction in her income."). The Fifth Circuit has

2 Even if plaintiffs are able to correct the above-noted defect, the court must still consider whether a denial of overtime constitutes an adverse employment action. FN9

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recognized that " § 1983's definition of adverse employment action may be broader than Title VII's definition, which limits the meaning of adverse employment action to ultimate employment decisions." Banks, 320 F.3d at 580 (citing Sharp, 164 F.3d at 933 n. 21). "Section 1983's definition of adverse employment action, like Title VII's definition, includes ultimate employment decisions, such as hiring, granting leave, discharging, promoting, demoting, and compensating." Id. (discussing these definitions when considering whether plaintiffs alleged adverse employment action in context of First Amendment retaliation claim). But it has recognized that certain actions that do not constitute ultimate employment actions under Title VII-like reprimands and disciplinary filings-can be actionable under § 1983. Id. *8 The court concludes that, in some circumstances, denial of the opportunity to earn overtime can qualify as an adverse employment action that will support a First Amendment retaliation claim. As noted above, "discharges, demotions, refusals to hire, refusals to promote, and reprimands" are recognized adverse employment actions. See, e.g., Breaux, 205 F.3d at 157. Although panels in this circuit often cite this list when discussing what an adverse employment action is, see, e.g., id.; Benningfield, 157 F.3d at 376; Pierce, 37 F.3d at 1149, the court has "not held this list to be exclusive[.]" Sharp, 164 F.3d at 933 n. 21. FN10 Accordingly, the fact that a denial of overtime does not appear in this list is not dispositive.

FN10. "Transfers can constitute adverse employment actions if they are sufficiently punitive or if the new job is markedly less prestigious and less interesting than the old one." Breaux, 205 F.3d at 157 (citations omitted). That the Fifth Circuit has held that some transfers constitute adverse employment actions in the context of First Amendment retaliation claims demonstrates that it considers the list to be non-exclusive. 4 Several acts that would be unpleasant if suffered by an

employee are not adverse employment actions. See Breaux, 205 F.3d at 157-58 (observing that Fifth Circuit has held, inter alia, that false accusations, criticism, and investigations are not adverse employment actions); see also Southard, 114 F.3d at 555 ("Not every negative employment decision or event is an adverse employment action that can give rise to a discrimination or retaliation cause of action under 1983."). Even the capacity of an action to stigmatize an employee is inadequate to make it one. See Breaux, 205 F.3d at 158 n. 14 ("Stigma by itself, without an impact on one's employment, does not constitute an adverse employment action.") (citing Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir.1995)). Instead, to qualify as an adverse employment action that will support a First Amendment retaliation claim, the act taken must alter an important condition of employment, result in the denial of an employment benefit, or have a negative consequence on the plaintiff's employment. See id. at 159 & n. 16 ("Some benefit must be denied or some negative consequence must impinge on the Plaintiff's employment before a threat of discharge is actionable."); Click v. Copeland, 970 F.2d 106, 110 (5th Cir.1992) (recognizing that, in Bickel v. Burkhart, 632 F.2d 1251 (5th Cir.1980), the Fifth Circuit "held that an employee could establish a deprivation by showing that his employer altered an important condition of employment." (internal quotation marks omitted)); Sharp v. City of Houston, 960 F.Supp. 1164, 1179 (S.D.Tex.1997) (observing that, in Pierce, the Fifth Circuit "did not merely rely on its `short list' of adverse actions, instead, it evaluated whether the employment actions at issue could be regarded as punishment of the employee and analyzed whether they had led to adverse results."), aff'd, 164 F.3d 923 (5th Cir.1999). The retaliatory act must also be more than a trivial one. See Sharp, 164 F.3d at 933 (recognizing that, "[a]lthough the Supreme Court has intimated that the First Amendment protects against trivial acts of retaliation, this court has required something more than the trivial[.]" (citing Pierce, 37 F.3d at 1146) (footnote omitted)). It must be equivalent to a discharge, demotion, refusal to hire, refusal to promote, or reprimand in its seriousness, causing "some serious, objective, and tangible harm[.]" Serna v. City of San Antonio, 244 F.3d 479, 482-83 (5th Cir.2001) (holding in context of First Amendment retaliation claim that

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plaintiff must make such showing to demonstrate that he suffered adverse employment action by being transferred). *9 Although plaintiffs apparently allege that they were p revented from accum u lating overtim e and compensatory time credit, they have not alleged facts that permit the court to determine whether this denial was " `sufficiently serious to constitute a constitutional injury.' " Serna, 244 F.3d at 483 (quoting Breaux, 205 F.3d at 152). Specifically, their pleadings lack any facts that show that the alleged denial was significant enough that it could be considered analogous to the actions the Fifth Circuit lists as examples of adverse employment actions, as opposed to something more trivial. W ithout such detail, the court is unable to determine whether plaintiffs have pleaded a First Amendment violation. This failure prevents plaintiffs from overcoming the qualified immunity defense because the allegations fail to show that the alleged denial of overtime and compensatory time constituted an adverse employment action. The court will give plaintiffs 30 days from the date of this memorandum opinion and order to file an amended Rule 7(a) reply that alleges facts that show that the denial rises to the level of an adverse employment action. FN11

the magistrate judge requiring a Rule 7(a) reply that they were obligated to plead sufficient facts to defeat qualified immunity, this opinion is the first that explicitly discusses the substantive deficiencies in plaintiffs' pleadings, and the court in its discretion will allow plaintiffs one more opportunity to attempt to plead the facts necessary to overcome the defense of qualified immunity. B Plaintiffs also allege that required hours of employment for the Northwest Division ICP Unit, which included night duty, were different from those in DPD's other ICP Units and "were established by the Defendants for racial and/or retaliatory reasons." Rule 7(a) Rep. ¶ 20(ii). A mere change in an employee's work hours is not alone an adverse employment action. See Benningfield, 157 F.3d at 377. In Benningfield the court rejected an argument that a transfer to the night shift was an adverse employment action. Id. Although "a transfer may also constitute a demotion," id., plaintiffs allege in this case only that they were required to work different hours, not that they were transferred. They have not adequately pleaded an adverse employment action on this basis.

C FN11. In today's decision, the court is allowing plaintiffs to file an amended Rule 7(a) reply not only when it raises a ground for dismissal sua sponte, but in other instances when it appears possible that plaintiffs can plead facts that would permit them to overcome the defense of qualified immunity. "[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (Fitzwater, J.). Although plaintiffs were on notice through the order of Plaintiffs also assert that they have been falsely accused of several acts of misconduct for "racially and/or retaliatory reasons[.]" Rule 7(a) Rep. ¶ 18. This allegation is insufficient to show that plaintiffs suffered an adverse employment action, because "mere accusations, without more, are not adverse employment actions." Benningfield, 157 F.3d at 376. M oreover, even if this was an adverse employment action, the allegation cannot serve as a basis for plaintiffs' claim because it fails to connect the action to a particular defendant. "In order to state a cause of action under section 1983, the plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." Woods v. Edwards, 51 F.3d 577, 583 (5th Cir.1995) (per curiam); see also

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Reyes, 168 F.3d at 161 ("Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff['s] injury." (emphasis added)). Because plaintiffs have failed to identify the defendants who were personally involved in accusing them of acts of misconduct, the allegation is insufficient to support a § 1983 claim. The court will give plaintiffs 30 days from the date of this memorandum opinion and order to file an amended Rule 7(a) reply that alleges facts that address these deficiencies.

against them, as already explained above, false allegations do not constitute adverse employment actions. The court will give plaintiffs 30 days from the date of this memorandum opinion and order to file an amended Rule 7(a) reply that alleges facts that address these deficiencies.

V Beginning with Bush, the court now considers whether plaintiffs have sufficiently pleaded that they individually incurred adverse employment actions.

D *10 Plaintiffs advance certain allegations that appear to focus on defendants' failure to take action when adverse actions were taken against plaintiffs. For example, they assert that "Hampton failed to take action against Crawford for his attempted illegal entry into Bush's office and have failed to take action against Defendants Renaud, Edwards, Gunn, Andrews and Gerdes when these Defendants took racially inspired and retaliatory actions against the [p]laintiffs." Rule 7(a) Rep. ¶ 16. In a similar allegation, they maintain that all defendants engaged in this type of conduct. Plaintiffs assert that, because, inter alia, of defendants' failure to take action against Crawford for attempting to burglarize Bush's office and for his posting the IAD complaint and statements of Bush, Ellis, and W ash, they have been falsely accused of acts of misconduct. They also allege that on numerous occasions Hampton misrepresented the status of plaintiffs' complaints of mistreatment and falsely claimed to have initiated investigations into Crawford's misconduct, but none actually occurred. Plaintiffs assert that Hampton overlooked acts of racist conduct and retaliation by the other defendants to cover up his refusal to take action against Crawford. These allegations are insufficient to show that plaintiffs suffered an adverse employment action. Plaintiffs have not pleaded facts to show that an important condition of their employment was altered by these actions or that they othe