Landry Rountree v. Troy Dyson, City of Beaumont

Landry Rountree appeals the dismissal of his 42 U.S.C § 1983 and related state-law claims against the City of Beaumont and Beaumont Police Sergeant Troy Dyson. We affirm the judgment of dismissal.

I.

Rountree owns a towing business and, for thirty years, participated in Beaumont’s non-consent tow rotation. For an accident that disables a car, the

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2018

Lyle W. Cayce

Clerk

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responding police officer calls a company on the rotation list to clear the wreck.

While Rountree was on the list, non-consent tows for the Beaumont Police

Department made up roughly two-thirds of his annual income.

In December 2013, Beaumont Police Chief James Singletary revoked

Rountree’s city-issued towing permit. The revocation was ostensibly based on

a complaint by a competing tow company, which asserted—truthfully—that

three of Rountree’s state-issued licenses had lapsed. But Rountree alleges that

Singletary, through one of his officers, persuaded the competitor to lodge the

complaint. In response to the complaint, Singletary sent Rountree a suspension

letter and revoked his permit for two years. Rountree unsuccessfully

appealed the suspension to the City Council and Mayor.

Although Rountree’s complaint is less than clear on the point, he conceded,

in his briefing before the district court, that a city permit is not required

for all towing in Beaumont. Rather, “a permit is only required for certain tow

jobs where police require the tow.” In other words, the permit is part of the

city’s process for choosing which vendors it hires to tow wrecked cars.

In March 2014, one of Rountree’s customers called him to an accident.

Because his permit remained suspended, Rountree could not tow the customer’s

vehicle. Instead of towing the wreck himself, Rountree called a permitted

tow truck to assist. While Rountree was on the scene, Dyson arrived and

ordered Rountree to leave. When Rountree refused, Dyson arrested him for

violating a city ordinance that forbids a tow driver from stopping within one

thousand feet of an accident without a valid tow-truck permit. The charge was

eventually dismissed.

In January 2016, Rountree sued the city and Dyson in state court under

§ 1983 and related state law. The defendants removed. Following a round of

motions to dismiss, the magistrate judge, acting as the district court by consent

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under 28 U.S.C. § 636(c), dismissed all of Rountree’s claims in a thorough opinion.

This appeal followed.

II.

Rountree contends that the district court erred in dismissing his claims

against the city. He describes the dismissal as “sua sponte” because, although

the city moved to dismiss and Rountree responded on the merits, Rountree

amended his complaint while the city’s motion was pending. That amendment,

to Rountree, “nullified” the pending motion to dismiss. Therefore the court

could not have done what it claimed to do—dismiss Rountree’s claims on

motion by the city—and must have acted sua sponte.

Rountree is mistaken. As explained in a treatise, and reiterated by

several district courts in this circuit, “defendants should not be required to file

a new motion to dismiss simply because an amended pleading was introduced

while their motion was pending.”1 Rather, “[i]f some of the defects raised in

the original motion remain in the new pleading, the court simply may consider

the motion as being addressed to the amended pleading.”2 Accordingly, the

court acted within its discretion when it considered the city’s motion before

dismissing the amended complaint.

Rountree’s second theory is that the court should not have dismissed

Rountree’s class-of-one equal protection claim for suspension of his permit.3

1 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. CIV. § 1476 (3d

ed. updated Apr. 2018).

2 Id.; see also Mire v. Bd. of Supervisors of La. State Univ., No. 15-6965, 2016 WL

4761561, at *2 (E.D. La. Sept. 13, 2016); Davis v. Dallas Cty., 541 F. Supp. 2d 844, 848 (N.D.

Tex. 2008).

3 In recounting the facts underpinning this dispute, Rountree asserts that, in addition

to the suspension, he was assessed fines, and he suggests that the city has failed to fine other

tow companies for similar violations. But his legal argument focuses exclusively on the

length of his suspension, and any contention concerning the fines is therefore forfeited. Even

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As noted, a city permit is not required for general, private tows; a permit is

merely required to be on the city’s non-consent tow list. Class-of-one claims

are inapposite “to a local government’s discretionary decision to include or not

include a company on a non-consent tow list.” Integrity Collision Ctr. v. City

of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (quotation marks omitted).

Though Integrity did not directly address the decision to revoke a tow

driver’s non-consent towing permit (thereby removing him from the list), its

reasoning extends here. “[A] class-of-one equal-protection claim is unavailable

in a public employment context,” and “[t]hat conclusion logically applies as well

to a local government’s discretionary decision to include or not include a company

on a non-consent tow list.”4 It “would be incompatible with the discretion

inherent in the challenged action” to “allow[] equal protection claims on such

grounds.”5

Employment decisions “involve discretionary decisionmaking based on a

vast array of subjective, individualized assessments,”6 so “a city’s decision to

purchase services from private companies for its non-consent tows” can include

“factors that are not reasonably measurable, such as reputation, personal experience,

and the particularities of how the city wishes to operate its non-consent

tow program.”7 And, it would be incompatible to allow an equal protection

if Rountree had adequately briefed an equal protection challenge to the fines, the district

court correctly concluded that the claim fails. See Engquist v. Ore. Dep’t of Agric., 553 U.S.

591, 604 (2008) (“[A]llowing an equal protection claim on the ground that a ticket was given

to one person and not others, even if for no discernible or articulable reason, would be incompatible

with the discretion inherent in the challenged action.”).

4 Integrity, 837 F.3d at 586 (quotation marks omitted). “A city is a consumer of towing

companies’ services when it contracts for non-consent tows.” Id. at 587 n.3.

5 Id. at 586 (quotation marks omitted).

6 Id. at 587 (quoting Engquist, 553 U.S. at 603).

7 Id.

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claim on the ground that one person received a discretionary punishment and

another did not,8 “even if for no discernable or articulable reason.” Engquist,

553 U.S. at 604 (employing a hypothetical about the issuance of speeding

tickets).9 It thus makes sense to extend Integrity here. If a city has the discretion

to choose from whom it contracts private services, then it must equally

retain the discretion to choose when to terminate such relationship.

Alternatively, Rountree’s equal-protection claim fails because he did not

sufficiently allege that he has been treated differently from others similarly

situated.10 His complaint generally alleges that other similarly situated individuals

were treated differently, but he points to no specific person or persons

and provides no specifics as to their violations.11 Though we take factual

8 Beaumont vests the chief of police with the “sole discretion” to determine whether a

substantial violation occurred. BEAUMONT, TEX., ORD. § 6.08.005(b).

9 Of course, an allegation “bas[ed] o[n] race or sex would state an equal protection

claim, because such discriminatory classifications implicate basic equal protection concerns.”

Engquist, 553 U.S. at 604; accord Integrity, 837 F.3d at 588 n.5. Nothing here should be read

to suggest otherwise.

10 A class-of-one equal-protection claim requires the plaintiff “show that (1) he or she

was intentionally treated differently from others similarly situated and (2) there was no

rational basis for the difference in treatment.” Lindquist v. City of Pasadena, 669 F.3d 225,

233 (5th Cir. 2012) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

11 Rountree generally purports that “when other companies had similar violations,

nothing was done to address them.” Rountree notes that Gregory Stanley, who filed the complaint

against Rountree, let his storage lot license lapse and was not suspended. Stanley,

however, is not an apt comparator, both because he had only one license lapse (not multiple

like Rountree) and because he had no complaint filed against him. The police department is

only required to investigate “complaints arising from reported violations.” BEAUMONT, TEX.,

ORD. § 6.08.005(a). Thus, Rountree needed to point to other tow-truck operators who had

license lapses and had complaints filed. See Lindquist, 669 F.3d at 234–35 (rejecting as equal

comparators persons who were not implicated by the relevant ordinance); Beeler v. Rounsavall,

328 F.3d 813, 816–817 (5th Cir. 2003) (rejecting as an equal comparator someone who

applied to renew permits where the plaintiff had applied for a new permit).

Additionally, Rountree was cited for a fourth violation wherein he “refused to allow

Officer[s] . . . to inspect records of vehicles towed at” his facility in compliance with Section

6.08.006(b)(3) of the City Ordinances. Rountree does not contend that any other driver had

this additional violation of refusing to permit inspections as required by law. That additional

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allegations as true at the Federal Rule of Civil Procedure 12(b)(6) stage,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). An allegation that others are treated differently, without more, is

merely a legal conclusion that we are not required to credit.12 Rountree’s equal

protection claim fails.

Finally, Rountree challenges the dismissal of his false-arrest claim

against Dyson, who is “entitled to qualified immunity unless there was no

actual probable cause for the arrest” and he was “objectively unreasonable in

believing there was probable cause for the arrest.” Davidson v. City of Stafford,

848 F.3d 384, 391 (5th Cir. 2017). Crucially, “[t]his probable cause may be for

any crime and is not limited to the crime that the officers subjectively considered

at the time they perform an arrest.” Id. at 392.

Dyson cites Beaumont City Ordinance Section 6.08.006(a)(1), which provides,

“All tow truck operators shall . . . [o]bey all lawful orders given by any

police officer and not in any manner interfere with any police officer in the

performance of his/her duty.” Violating that is a misdemeanor. See BEAUMONT,

TEX. ORD. § 6.08.007(a). Rountree admits in his complaint that Dyson

ordered him “to move his tow truck and leave the scene,” but Rountree

“declined to follow the sergeant’s direction to leave the scene.” In his briefing,

Rountree does not discuss Section 6.08.006(a)(1) or make any argument that

Dyson would have been objectively unreasonable in believing his order to be

lawful. Accordingly, because Rountree did not obey Dyson’s apparently lawful

violation could rationally account for any perceived disparities in treatment.

12 In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (“We do not

accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”)

(internal quotation marks omitted); Iqbal, 556 U.S. at 679 (“While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations.”).

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order, Dyson was not objectively unreasonable in believing that he had probable

cause to arrest. Rountree’s false-arrest claim fails.13



* * *



13 See Payne v. City of Olive Branch, 130 F. App’x 656, 662 (5th Cir. 2005) (per curiam)

(dismissing unreasonable-search-and-seizure claim where officer reasonably could have

believed that suspect failed to obey a police order).

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The judgment of dismissal is AFFIRMED.