IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-20294 Summary Calendar _____________________

JOSEPH EARL DAIGLE,

Plaintiff-Appellant,

v.

PAUL MICHNA; KEVIN R. JOHNSON; GEORGE OLIN; WARREN K. DRIVER; CITY OF TOMBALL,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-98-CV-2940) _________________________________________________________________

November 18, 1999

Before KING, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Joseph Earl Daigle appeals from the

district court’s dismissal of his complaint and subsequent denial

of his motion for reconsideration or, alternatively, a new trial.

For the reasons stated below, we AFFIRM.

On August 8, 1998, Plaintiff-Appellant Joseph Earl Daigle

(“Daigle”) filed a complaint against Defendants-Appellees, the

City of Tomball and City of Tomball police officers Paul Michna,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. George Olin, Kevin R. Johnson, and Warren K. Driver

(collectively, the “Officers”), in the 157th Judicial District

Court of the State of Texas. Daigle complained that he was

unfairly and unconstitutionally discharged from his position as a

City of Tomball police officer. Defendants-Appellees

subsequently removed the case to the United States District Court

for the Southern District of Texas. On September 28, 1998, the

City moved to dismiss Daigle’s complaint under Fed.R.Civ.P.

12(b)(6). The Officers filed an answer to the complaint on

November 6, 1998.

During a December 14, 1998, scheduling conference Daigle

orally moved for, and was granted, leave to file an amended

complaint. This action was reflected in an order filed by the

court on December 15, 1998. Daigle never proposed, and the

district court never set, a date by which the amended complaint

should be filed. Two days after the conference, the Officers

filed a 12(b)(6) motion to dismiss. Daigle filed a reply to both

motions to dismiss on December 23, 1998.

On January 14, 1999, the district court entered an order

dismissing Daigle’s complaint for failure to state a claim.1 A

final judgment was entered the same day. Daigle failed to file

1 Daigle’s original complaint included six different causes of action. The district court dismissed five and remanded one to state court. On appeal, Daigle’s only challenge to the 12(b)(6) dismissal is that the court erroneously dismissed his First Amendment claims. Because Daigle does not challenge the remainder of the court’s order, we consider any such argument to be waived.

2 an amended complaint prior to the court’s order and entry of

judgment.

Daigle subsequently filed, pursuant to Rule 59, a motion for

reconsideration or, in the alternative, a new trial. Attached to

the motion was Daigle’s proposed amended complaint. Daigle also

separately filed the amended complaint. Daigle argued that the

district court erred in dismissing his claims and, in any event,

that he should have been allowed to submit his amended complaint

prior to the consideration of any motion to dismiss. The

district court denied Daigle’s motion for a new trial and granted

Appellees’ motion to strike Daigle’s amended complaint. Daigle

timely appeals.

DISCUSSION

We note at the outset that Daigle advances two arguments on

appeal: 1) that the district court erred in dismissing his First

Amendment claim because his original complaint adequately pled a

cause of action, and 2) the district court erred in dismissing

his complaint and entering judgment before he filed an amended

complaint. We address each of these arguments in turn.

I. Daigle’s First Amendment Claim

We review the district court’s dismissal de novo, accepting

as true the complaint’s well-pleaded factual allegations. See

Norman v. Apache Corp.,

(5th Cir. 1994).

Dismissal under 12(b)(6) is appropriate if it appears, beyond

3 doubt, that a plaintiff can prove no set of facts entitling him

to relief. See Conley v. Gibson,

(1957).

The gravamen of Daigle’s First Amendment claim revolves

around his refusal to “choose sides” in an internal Tomball

Police Department dispute. In 1992, the City dismissed police

chief Joseph Schultea and replaced him with another City of

Tomball police officer, Appellee Michna. Daigle contends that

after Schultea was dismissed, any officer who did not align

themselves with Michna, and against Schultea, was placed on a

“hit list” and eventually discharged from the police force.

Daigle contends that he was fired because he chose to exercise

his First Amendment rights by remaining neutral in the dispute,

refusing to align himself with either Michna or Schultea.

The district court reasoned that because Daigle had not

actually engaged in any sort of speech, instead choosing to

remain neutral in the dispute, and because no one demanded that

he speak, his First Amendment rights were not violated. We agree

that by the face of his pleadings, Daigle has failed to allege

that he engaged in any exercise of his First Amendment rights.

“A state may not deny an individual public employment or

benefits related thereto based on the individual’s exercise of

[his] First Amendment right to free expression even when the

individual lacks a liberty or property interest in the

employment....” Jones v. Collins,

(5th Cir.

1998). To sufficiently plead a First Amendment violation, Daigle

must allege that “he engaged in speech, or at least expressive

4 activity, and that his ‘speech’ was protected by the First

Amendment.” Mylett v. Mullican,

(5th Cir.

1993). While it is true that one need not engage in actual

speech to invoke the protections of the First Amendment, and that

“silence in the face of an illegitimate demand for speech is

subject to First Amendment protection,” Daigle fails to plead any

set of facts that, taken as true, support a First Amendment

claim. Jones v. Collins,

(citing Wooley v.

Maynard,

(1977)).

Daigle’s original complaint does not allege that anyone

demanded he speak out in favor of Michna or against Schultea.

Nor does the complaint allege that anyone told Daigle that his

failure to speak out would result in his termination. Daigle

points out that his original complaint stated that “due to [his

refusal] to choose sides, and to attempt to remain neutral in the

ensuing battle between Chief Schultea and the City of Tomball, it

is believed by plaintiff that he was placed on the Michna hit

list and was ultimately terminated on August 8, 1996.” This

statement does not indicate that Daigle engaged in any activity

protected by the First Amendment.

Daigle argues that his silence was expressive activity and

is therefore entitled to First Amendment protection. While

silence in the face of a demand to speak may be construed to

constitute expressive “conduct” for purposes of the First

Amendment, silence, in this instance, does not rise to the level

of protected expressive activity. For an activity to constitute

5 expressive conduct it must be “sufficiently imbued with elements

of communication.” Cabrol v. Town of Youngsville

(5th Cir. 1997) (citing Spence v. Washington,

(1974)). Conduct is sufficiently communicative if the intent

of the conduct is to convey a particular message and it is likely

that the message would be understood by those viewing it.

(citing Texas v. Johnson,

(1989)). Under no

set of facts alleged in Daigle’s compliant can he show that he

intended his silence to communicate a message. In fact, Daigle

admits that the very purpose of his silence was to remain

neutral, thus avoiding the communication of any message or

preference. In sum, Daigle’s original complaint fails to allege

any viable First Amendment claim.

II. The District Court’s Dismissal Prior to Daigle’s Filing of an Amended Complaint.

Daigle argues that the district court erred in dismissing

his complaint before he had filed an amended complaint.

Procedurally, this argument is best framed as an attack on the

court’s refusal to grant Daigle’s motion for a new trial. What

Daigle contends is that the court’s failure to withhold ruling on

the motions to dismiss until an amended complaint had been filed

warrants a new trial. We are not persuaded by this argument. The

decision to grant a new trial is “committed to the sound

6 discretion of the trial court. We will not reverse unless an

abuse of that discretion is shown.” Calcasieu Marine Nat. Bank

v. Grant,

(5th Cir. 1991).

We begin by noting that “once ... a judgment is entered

amendment of the complaint is no longer possible.” Whitaker v.

City of Houston, Texas,

(5th Cir. 1992). Prior

to that time, district court had discretion, under Rule 15(a), to

decide whether to allow Daigle to file an amended complaint. See

Foman v. Davis,

(1962). While the district

court granted leave to amend, it did not set a date after which

an amended complaint would not be accepted, nor did it state that

it would withhold ruling on the outstanding motion to dismiss

until an amended complaint was submitted. We refuse to find that

the granting of leave to amend automatically suspends the court’s

ability to decide any pending motions to dismiss.

Daigle complains that his attorney was on vacation from

December 23, 1998, until early January, 1999, and was therefore

unable to file promptly an amended complaint. This does not

excuse Daigle from failing to file such a complaint between the

December 14 scheduling conference and January 14, when the

district court dismissed the case. Daigle was aware that various

motions to dismiss were pending. In fact, while he was not able

to prepare an amended complaint prior to his vacation, Daigle’s

attorney did manage to file an opposition to the motions to

dismiss on December 23, 1998.

Daigle should have been on notice that his complaint was

7 severely deficient. The motions to dismiss clearly pointed out a

number of shortcomings in the original complaint. A reading of

Daigle’s amended complaint reveals no information that would have

come to light only after the December conference. In short,

there is no compelling reason Daigle can point to as

justification for failing to file an amended complaint for nearly

a month after having been given leave to do so.

The district court’s disposition of cases need not come to a

grinding halt to accommodate an attorney’s vacation schedule.

Daigle’s attorney was on notice that his complaint was on shaky

ground and that an amended complaint was needed posthaste. The

district court did not abuse its discretion in refusing to grant

Daigle’s motion for a new trial simply because the court chose to

dismiss the case prior to receiving Daigle’s anticipated amended

complaint.

CONCLUSION

For the above stated reasons, the judgment of the district

court is AFFIRMED.

8