United States District Court, W.D. Texas, Austin Division
ALBRIGHT, UNITED STATES DISTRICT JUDGE.
the Court are: Defendants Frost and Schwartz's Motion to
Dismiss (ECF No. 56); the City Defendants' Joint Motion
to Dismiss (ECF No. 57); Defendants Reyna and McLennan
County's Motion to Dismiss (ECF No. 58); and the
respective responses, replies, and sur-replies thereto. The
Court, having considered the Motions and applicable law,
finds that the Motions should be DENIED or
DENIED IN PART and GRANTED IN
PART as discussed below.
case stems from the Twin Peaks restaurant incident on May 17,
2015. Members of the Bandidos and Cossacks Motorcycle Clubs,
along with hundreds of other motorcycling enthusiasts,
converged on the restaurant. Tensions between the Bandidos
and Cossacks erupted in a shootout that left nine dead and
many injured. In the aftermath of the incident, police
arrested 177 individuals on charges of Engaging in Organized
Criminal Activity. The probable cause affidavit in support of
the arrest warrants was the same for each of the 177
arrestees, and a justice of the peace set bond for each of
the arrestees at one million dollars. Only one of the
criminal cases ever went to trial (the defendant in that case
is not a party to the instant action), and those proceedings
ended in a mistrial. The state eventually dropped all
remaining charges against the arrestees. The plaintiffs in
this case, Christopher Eaton, Owen Bartlett, and James
Venable were arrested pursuant to the same probable cause
affidavit as the other arrestees.
bring this case pursuant to 42 U.S.C. § 1983. They
allege that the defendants violated their Fourth Amendment
rights by obtaining arrest warrants based on a
fill-in-the-name affidavit that lacked probable cause.
Plaintiffs also allege that the defendants violated their
Fourteenth Amendment due process right to be free from
unlawful arrest. Plaintiffs allege that the defendants
conspired to commit these violations.
are three groups of defendants in this case. The first group
consists of: the City of Waco, Texas; Brent Stroman, Chief of
Police; Robert Lanning, Assistant Chief of Police; detective
Jeffrey Rogers; and police officers Manuel Chavez, Patrick
Swanton. The second group is McLennan County, Texas and
former McLennan County District Attorney Abelino
“Abel” Reyna. The third group is Steven Schwartz
and Christopher Frost, both of whom are special agents of the
Texas Department of Public Safety. The plaintiffs bring suit
against the City of Waco (“the City”) and
McLennan County (“the County”) as municipalities
and the other defendants in their individual capacities. The
individual defendants all assert qualified immunity.
42 U.S.C. § 1983 creates a cause of action against any
person who, under color of law, causes another to be deprived
of a federally protected constitutional right. Two
allegations are required to state a cause of action under 42
U.S.C. § 1983. “First, the plaintiff must allege
that some person has deprived him of a federal right. Second,
he must allege that the person who has deprived him of that
right acted under color of state or territorial law.”
Gomez v. Toledo, 446 U.S. 635, 640 (1980); Manax
v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).
motion or sua sponte, a court may dismiss an action that
fails to state a claim upon which relief may be granted.
Fed.R.Civ.P. 12(b)(6); Carroll v. Fort James Corp.,
470 F.3d 1171, 1177 (5th Cir. 2006). To survive Rule 8, a
nonmovant must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The
court's task is to determine whether the plaintiff has
stated a legally cognizable claim that is plausible, not to
evaluate the plaintiff's likelihood of success.”
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010). The court begins by
identifying which allegations are well-pleaded facts and
which are legal conclusions or elemental recitations;
accepting as true the former and rejecting the latter.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
need not blindly accept every allegation of fact; properly
pleaded allegations of fact amount to more than just
conclusory allegations or legal conclusions
“masquerading as factual conclusions.” Taylor
v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002). The court then determines whether the accepted
allegations state a plausible claim to relief. Id.
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555. “The
court accepts all well-pleaded facts as true, viewing them in
the light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (quotation marks omitted). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678.
“The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. For purposes of Rule
12(b)(6), “pleadings” include the complaint, its
attachments, and documents referred to in the complaint and
central to a plaintiff's claims. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498-499 (5th Cir.
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
an action barred by qualified immunity. See Bustillos v.
El Paso Cnty. Hosp. Dist., 226 F.Supp.3d 778, 793 (W.D.
Tex. 2016) (Martinez, J.) (dismissing a plaintiff's claim
based on qualified immunity). Qualified immunity shields
government officials from civil liability for claims under
federal law unless their conduct “violates a clearly
established constitutional right.” Mace v. City of
Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Qualified
immunity balances “the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Because qualified immunity shields “all but the plainly
incompetent or those who knowingly violate the law, ”
the Fifth Circuit considers qualified immunity the norm and
admonishes courts to deny a defendant immunity only in rare
circumstances. Romero v. City of Grapevine, 888 F.3d
170, 176 (5th Cir. 2018) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)) (internal quotation marks omitted).
use a two-prong analysis to determine whether an officer is
entitled to qualified immunity. Cole v. Carson, No.
14-10228, 2019 WL 3928715, at *5 (5th Cir. Aug. 20, 2019),
as revised (Aug. 21, 2019). A plaintiff must show
(1) the official violated a constitutional right; and (2) the
constitutional right was “clearly established” at
the time of the defendant's alleged misconduct. Reed
v. Taylor, 923 F.3d 411, 414 (5th Cir. 2019). The
Supreme Court held in Pearson that “the judges
of the district courts . . . should be permitted to exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed
first.” 555 U.S. at 236. Although qualified immunity is
an affirmative defense, the plaintiff bears the burden to
rebut the defense and assert facts to satisfy both prongs of
the analysis. Brumfield, 551 F.3d at 326. If a
plaintiff fails to establish either prong, the public
official is immune from suit. Zarnow v. City of Wichita
Falls, 500 F.3d 401, 407 (5th Cir. 2007).
heightened pleading requirement is imposed on a civil rights
plaintiff suing a state actor in his individual capacity.
Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir.
1985). To satisfy the heightened pleading requirement and
maintain a § 1983 action against an official who raises
a qualified immunity defense, a complaint must allege with
particularity all material facts establishing a
plaintiff's right of recovery, including “detailed
facts supporting the contention that [a] plea of immunity
cannot be sustained.” Leatherman v. Tarrant Cnty.
Narcotics Intelligence and Coordination Unit, 954 F.2d
1054, 1055 (5th Cir. 1992). Mere conclusory allegations are
insufficient to meet this heightened pleading requirement.
Elliott, 751 F.2d at 1479.
Fourth and Fourteenth Amendments
outset, the Court notes that Plaintiffs bring their claims
against the defendants under both the Fourth and Fourteenth
Amendments. But “[w]here a particular Amendment
provides an explicit textual source of constitutional
protection against a particular sort of government behavior,
that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing
these claims.” Albright v. Oliver, 510 U.S.
266, 273 (1994) (internal punctuation omitted). A citizen has
a right under the Fourth Amendment to be free from arrest
unless the arrest is supported by either a properly issued
arrest warrant or probable cause. Flores v. City of
Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “The
Framers considered the matter of pretrial deprivations of
liberty and drafted the Fourth Amendment to address
it.” Albright, 510 U.S. at 274. Because the
Fourth Amendment covers unlawful arrest, Plaintiffs cannot
also seek relief under the Fourteenth Amendment. Cuadra
v. Houston Indep. Sch. Dist., 626 F.3d 808, 814 (5th
Cir. 2010). Accordingly, Plaintiffs' Fourteenth Amendment
claims are DISMISSED, and the Court will
address their claims in the context of the Fourth Amendment.
Court also notes that Plaintiffs attempt to invoke an
exception to the general rule described above, citing
Cole v. Carson, 802 F.3d 752 (5th Cir. 2015),
vacated sub nom. Hunter v. Cole, 137 S.Ct. 497
(2016). In Cole, the Fifth Circuit recognized
deliberate fabrication of evidence by police may create a
Fourteenth Amendment claim if such a claim may not be pursued
under the Fourth Amendment. Id. First, Plaintiffs
have a Fourth Amendment claim in this case. Second, the Fifth
Circuit issued this decision on September 25, 2015, over four
months after the shootout at Twin Peaks. Again, to
overcome a defendant's qualified immunity, a plaintiff
must show that the constitutional right was “clearly
established” at the time of the defendant's alleged
misconduct. Reed, 923 F.3d at 414. The exception
that Plaintiffs seek to invoke had not yet been recognized in
this Circuit at the time their cause of action arose, and as
such, any right recognized in Cole was not clearly
are two claims against government agents for alleged Fourth
Amendment violations in connection with a search or arrest
warrant: (1) claims under Malley,
475 U.S. at 335, for which the agent may be liable if he
“fil[es] an application for an arrest warrant without
probable cause” and “a reasonable well-trained
officer . . . would have known that [the] affidavit failed to
establish probable cause, ” Michalik v.
Hermann, 422 F.3d 252, 259-60 (5th Cir. 2005) (citations
and internal quotation marks omitted); and
(2) claims under Franks v.
Delaware, 438 U.S. 154 (1978), for which the agent may
be liable if he “makes a false statement knowingly and
intentionally, or with reckless disregard for the truth that
results in a warrant being issued without probable cause,
” Michalik, 422 F.3d at 258 n.5. In the
instant case, Plaintiffs bring claims under both theories.
allege that the defendants violated their Fourth Amendment
rights by presenting a facially deficient warrant affidavit.
Third Am. Compl. (hereinafter, “Am. Compl.”) at
29-31. Plaintiffs argue that the warrant is a general
warrant, devoid of any particularized facts related to any of
the plaintiffs. See Id. (warrant affidavit also
included below). They argue that the affidavit contains many
facial shortcomings, including: it fails to describe specific
actions by the plaintiffs; it contains no specific
allegations regarding the plaintiffs' membership or
affiliation with a criminal street gang; it contains no
specific allegations regarding a conspiracy to commit
criminal acts; and it offers no specific allegation that the
plaintiffs committed any violent act.
Malley violation is not the presentment of false
evidence, but the obvious failure of accurately presented
evidence to support the probable cause required for the
issuance of a warrant.
Spencer v. Staton, an arrestee brought a § 1983
action alleging that she was arrested on a facially invalid
warrant that was unsupported by probable cause. 489 F.3d 658,
661 (5th Cir. 2007). The affidavit contained only the
arrestee's biographical and contact information, the
charged offense, and a conclusory statement that she had
committed the crime of assisting others in evading
authorities. Id. The Fifth Circuit held that this
was “a textbook example of a facially invalid,
‘barebones' affidavit.” Id.
Kohler v. Englade, police searching for a serial
killer sought a DNA sample from the plaintiff during a
criminal investigation. 470 F.3d 1104, 1107 (5th Cir. 2006).
A detective prepared an affidavit for a seizure warrant that
offered no indication as to the identity or credibility of a
tipster who implicated the plaintiff, nor did the affidavit
indicate any corroborating evidence to support the tip.
Id. at 1110-11. Additional information in the
affidavit regarding Kohler's twenty-year-old burglary
conviction, employment status, his past employment with a
company with a secondary shop on a road where items belonging
to one of the victims were found, and refusal to voluntarily
submit to a saliva swab, failed to establish probable cause
that he was the serial killer. Id. at 1111.
“Even when considered in their totality, the
circumstances set forth in the affidavit failed to provide a
nexus” between the plaintiff's DNA and the serial
Blake v. Lambert, a challenged affidavit merely
identified the plaintiff and recited the charge and relevant
statute. 921 F.3d 215, 220 (5th Cir. 2019). The affidavit did
not provide enough supporting facts to establish probable
cause, such as the officer's experience, the sources of
the information in the affidavit or the reliability of those
sources, or his conversations with the plaintiff during his
investigation. Id. at 220-21. The Fifth Circuit
found this to be a “textbook example” of a
facially invalid affidavit. Id. (citing
Spencer, 489 F.3d at 658). The affidavit at issue in
the instant case stated:
My name is MANUEL CHAVEZ and I am commissioned as a peace
officer with the City of Waco by The State of Texas. I hereby
state upon my oath that I have reason to believe and do
believe mat heretofore, and before the making and filing cf
this Complaint, mat on or about May 17, 2015, in McLennan
County, Texas, the said___ did then and there, as a member of
a criminal street gang, commit or ...