     Case: 15-10860      Document: 00513537444         Page: 1    Date Filed: 06/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit


                                      No. 15-10860
                                                                                    FILED
                                                                                 June 7, 2016
                                                                               Lyle W. Cayce
THOMAS TRAVIS,                                                                      Clerk

                                                 Plaintiff - Appellant
v.

CITY OF GRAND PRAIRIE, TEXAS; RICK OSEGUERA, Individually;
CHIEF STEVEN DYE, Individually; ASSISTANT CHIEF MICHAEL
TAYLOR, Individually,

                                                 Defendants - Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-3650


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Thomas Travis sued the City of Grand Prairie, Texas
(“the City”) and several police officers in their individual capacities alleging
causes of action under 42 U.S.C. § 1983, Title VII, and Texas state law. Travis
appeals the district court’s dismissal of his claims under Federal Rule of Civil
Procedure 12(b)(6). We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  I. Background
         These facts are drawn from the allegations in Travis’s third amended
complaint, which we must accept as true. See Rosenblatt v. United Way of
Greater Hous., 607 F.3d 413, 417 (5th Cir. 2010). In July of 2013, Travis
reported to the state welfare agency that Rita Sandoval and Jessica Castaldo
were committing welfare fraud and perjury. Travis also reported to Child
Protective Services (“CPS”) that Sandoval had sexually assaulted a minor
child.
         Two days after Travis made these reports, Castaldo and Sandoval
reported to the Navarro County Sheriff’s Department that Travis had sexually
assaulted Castaldo. The Sheriff’s Department questioned Travis regarding the
report, and Travis informed the officers that the allegations by Castaldo and
Sandoval were false and made in retaliation for his having reported the welfare
fraud and sexual assault of a minor. The Sheriff’s Department concluded that
the sexual assault allegations against Travis were indeed false and retaliatory.
         The next day, July 25, 2013, Castaldo and Sandoval reported the same
sexual assault allegations against Travis to the Grand Prairie Police
Department. The report was ultimately assigned to Detective Rick Oseguera.
Travis informed Detective Oseguera that Castaldo and Sandoval’s allegations
were false and retaliatory, that he had proof that Castaldo and Sandoval had
committed state and federal fraud and perjury, and that Castaldo had sexually
assaulted a minor. Travis alleges that CPS confirmed with the Grand Prairie
Police Department that there was an ongoing criminal investigation into
Castaldo’s alleged sexual assault of a minor. Further, Travis alleges that the
Navarro County Sheriff’s Department communicated to Detective Oseguera
that Castaldo and Sandoval’s allegations against Travis were in fact false and
retaliatory in motive.


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                                      No. 15-10860
       Detective Oseguera ignored Travis’s assertions of innocence, and Travis
was arrested by the Grand Prairie Police Department for sexually assaulting
Castaldo. In support of Travis’s arrest, Detective Oseguera provided a sworn
affidavit stating that Travis had a history of filing false reports.
       Travis complained to Assistant Chief Michael Taylor and Chief Steven
Dye that Detective Oseguera was knowingly and intentionally violating
Travis’s civil rights by continuing to prosecute Travis despite the obvious
retaliatory motive for the reports of sexual assault by Castaldo and Sandoval.
Chief Dye and Assistant Chief Taylor allegedly agreed that the report about
Travis appeared false, but they proceeded to seek a grand jury indictment.
       Despite allegedly knowing that the charges against Travis were false,
the Grand Prairie Police Department proceeded to prosecute Travis. Travis
was jailed for approximately three months until, on July 30, 2014, a Dallas
County grand jury no-billed Travis on one charge, and the District Attorney’s
office dropped the remaining charge against Travis.
       Travis filed suit against the City and against Detective Oseguera, Chief
Dye, and Assistant Chief Taylor (“the officers”) on October 10, 2014. Travis
alleges that on October 24, 2014, he was arrested and assaulted by Officer
Andrew Chance of the City of Mesquite Police Department at the request of
the officers in retaliation for his filing his federal lawsuit.             Travis’s third
amended complaint included causes of action for violations of 42 U.S.C. § 1983
and retaliation claims under Title VII of the Civil Rights Act of 1964, 1 as well



       1In its order on defendants’ motions to dismiss, the district court discussed Travis’s
Brady violation claim. See Brady v. Maryland, 373 U.S. 83 (1963). To the extent that Travis’s
third amended complaint can be construed as alleging a Brady violation, he has failed to
adequately brief the issue before this court. As a result, he has abandoned the issue.
See Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993) (“ Questions posed for
appellate review but inadequately briefed are considered abandoned.” (citation omitted));
FED. R. APP. P. 28(a)(8)(A) (requiring argument to contain “appellant’s contentions and the
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                                    No. 15-10860
as state law claims of intentional infliction of emotional distress, false
imprisonment, malicious prosecution, and defamation. The district court
granted defendants’ motions to dismiss Travis’s claims for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). Travis timely appealed.
                               II. Standard of Review
      “[We] review[] de novo a district court’s grant or denial of a Rule 12(b)(6)
motion to dismiss, ‘accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiff.’” True v. Robles, 571 F.3d 412,
417 (5th Cir. 2009) (citation omitted). “To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is
plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions[.]”
Twombly, 550 U.S. at 555 (internal citations omitted).
      “We review de novo whether a state is entitled to sovereign immunity,”
Machete Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015) (citing Hale
v. King, 642 F.3d 492, 497 (5th Cir. 2011)), and review a district court’s denial
of leave to amend for an abuse of discretion, Simmons v. Sabine River Auth.
La., 732 F.3d 469, 478 (5th Cir. 2013).




reasons for them, with citations to the authorities and parts of the record on which the
appellant relies”).
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                                       No. 15-10860
                                      III. Discussion
A. Section 1983 Claims Against the Officers
       1. Malicious Prosecution Under 42 U.S.C. § 1983
       Travis alleges that the officers maliciously charged him with sexual
assault and, during the arrest, tendered false information to the prosecutor to
lead him to believe that probable cause existed for the arrest in violation of his
Fourth, Eighth, and Fourteenth Amendment Rights. To the extent Travis
alleges that the officers violated his constitutional rights by engaging in
malicious prosecution, we have held that a freestanding 42 U.S.C. § 1983 claim
based solely on malicious prosecution is not viable. 2 See Castellano v. Fragozo,
352 F.3d 939, 945 (5th Cir. 2003) (en banc); see also Cuadra v. Hous. Indep.
Sch. Dist., 626 F.3d 808, 812–13 (5th Cir. 2010).                   Accordingly, Travis’s
freestanding § 1983 malicious prosecution claim fails as a matter of law.
Cuadra, 626 F.3d at 812. To the extent Travis “allege[s] that officials violated
specific constitutional rights in connection with a ‘malicious prosecution,’” we
address those claims below. Id. (quoting Castellano, 352 F.3d at 945).
       2. Unlawful Seizure and False Arrest Under 42 U.S.C. § 1983
       Travis alleges that the officers unlawfully seized him and committed a
false arrest in violation of his Fourth Amendment rights. Travis cannot prevail
on his claim for unlawful seizure or false arrest unless he alleges facts that, if
true, show that the officers lacked probable cause to seize and/or arrest him.



       2 We have recognized that the Fourth Amendment’s protections extend to preclude
unreasonable seizure throughout the pretrial events of a prosecution, although we have
discussed it as a Fourth Amendment claim and have rejected the notion that a freestanding
malicious prosecution claim absent a Fourth Amendment violation is cognizable under
§ 1983. See Castellano v. Fragozo, 352 F.3d 939, 945-54 (5th Cir. 2003) (en banc). We note
that the Supreme Court has granted a petition for a writ of certiorari to review the Seventh
Circuit’s holding in Manuel v. City of Joliet, 590 F. App’x 641 (7th Cir. 2015), cert. granted,
136 S. Ct. 890 (2016), that the Fourth Amendment does not give rise to a claim for malicious
prosecution.
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See Connors v. Graves, 538 F.3d 373, 377 (5th Cir. 2008) (discussing showing
of no probable cause with respect to claim for unlawful seizure); Haggerty v.
Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004) (same with respect to false
arrest claim). Travis alleges that the officers lacked probable cause to arrest
him because Detective Oseguera possessed direct exculpatory evidence proving
Travis’s innocence—namely, CPS’s confirmation that Castaldo was under
investigation for child sexual abuse and the Navarro County Sheriff’s
Department’s conclusion that Castaldo’s allegations were false.
      “Probable cause exists when the totality of the facts and circumstances
within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.” Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009)
(quoting Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000)); see also Wooley
v. City of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000) (“The appropriate
balance between an individual’s interest in remaining free from seizure of
his person and the government’s interest in enforcing its laws has been
reached by requiring a warrant or the existence of probable cause that the
individual has committed some criminal act.”). “[P]robable cause requires only
a probability or substantial chance of criminal activity, not an actual showing
of such activity.” Curtis v. Anthony, 710 F.3d 587, 595 (5th Cir. 2013) (quoting
Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983)).
      Here, even assuming Travis’s allegations are true, Travis has failed to
show that the officers lacked probable cause to arrest or seize him. Travis was
arrested pursuant to Castaldo’s report that Travis had sexually assaulted her.
This report alone was sufficient to give the officers probable cause for arrest.
See Johnson v. Bryant, 46 F.3d 66, 1995 WL 29317, at *3 (5th Cir. 1995)




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(unpublished) 3 (noting that where a victim specifically names her perpetrator,
probable cause generally exists to arrest the named individual); Fontenot v.
Cormier, 56 F.3d 669, 674 (5th Cir. 1995) (probable cause to arrest perpetrator
existed where victim of assault identified perpetrator by name); United States
v. Simpson, 484 F.2d 467, 468 (5th Cir. 1973) (assault victim’s identification of
perpetrator gave rise to probable cause for arrest). While he has questioned
Castaldo’s credibility and motives, he has pointed to nothing that would show
her account to be demonstrably false. Travis also provides no authority for the
argument that a different police department was required to accept the
Navarro County Sheriff’s Department’s alleged resolution of this credibility
determination. Because Travis has failed to allege that the officers lacked
probable cause, we affirm the district court’s dismissal of Travis’s § 1983
claims against the officers. 4
B. Municipal Liability Under 42 U.S.C. § 1983
          Travis alleges that the City is liable under § 1983 because “it sanctioned
the custom, practice and/or policy or procedure of illegal seizures” and “because
the arrest of Plaintiffs without justification constituted a persistent,
widespread practice of city employees, in particular members of the City of
Grand Prairie Police Department.”                    In order to bring a § 1983 claim
for municipal liability, a plaintiff must allege a constitutional violation
resulting from a municipal custom or policy. Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690–94 (1978). A plaintiff must identify: “(1) an
official policy (or custom), of which (2) a policy maker can be charged with



          3   Although Johnson is an unpublished decision, it is precedential under 5TH CIR. R.
47.5.3.
          Because we conclude that Travis has not adequately alleged a violation of his
          4

constitutional rights and therefore affirm the dismissal of his § 1983 claims against the
officers, we need not address the officers’ assertions of qualified immunity. See Ontiveros v.
City of Rosenberg, 564 F.3d 379, 385 (5th Cir. 2009).
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actual or constructive knowledge, and (3) a constitutional violation whose
‘moving force’ is that policy (or custom).” Pineda v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001)).     As discussed above, Travis has failed to allege a
constitutional violation because he has not sufficiently alleged that the officers
lacked probable cause to arrest or seize him. Accordingly, he has not identified
a constitutional violation that could support a finding of municipal liability.
See Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997) (“Without an
underlying constitutional violation, an essential element of municipal liability
is missing.”). We therefore affirm the district court’s dismissal of Travis’s §
1983 claims against the City.
C. Retaliation Under Title VII
      Travis also alleges that defendants violated Title VII of the Civil Rights
Act by requesting that Officer Chance of the Mesquite Police Department
assault and arrest Travis in retaliation for Travis’s filing his federal lawsuit.
“Title VII prohibits employers from discriminating against employees on the
basis of race, color, religion, sex, or national origin.” Grimes v. Tex. Dep’t of
Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996) (citing
42 U.S.C. § 2000e–2(a)). To state a claim for retaliation under Title VII, a
plaintiff must allege that he engaged in protected activity and that an adverse
employment action occurred as a result. See Brandon v. Sage Corp., 808 F.3d
266, 270 (5th Cir. 2015) (quoting Raggs v. Miss. Power & Light Co., 278 F.3d
463, 471 (5th Cir. 2002)). Travis’s allegations of retaliation do not arise out of
an employment relationship and thus are not cognizable under Title VII.
Accordingly, we affirm the district court’s dismissal of his Title VII claims.
D. Texas State Law Claims
      Travis also brings the following state law claims against defendants:
defamation, malicious prosecution, false imprisonment, and intentional
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infliction of emotional distress. On the City’s motion, the district court
dismissed Travis’s state law claims against the officers under Texas Civil
Practice & Remedies Code § 101.106(e) on the ground that Travis elected to
bring his suit against the City rather than the officers. The district court then
dismissed Travis’s state law claims against the City on sovereign immunity
grounds. Travis argues that the district court erred in dismissing his state law
claims against Detective Oseguera, contending that he named only Detective
Oseguera and not the City in his Texas state law claims.
      The Texas Tort Claims Act (“TTCA”) requires an election of remedies
when a plaintiff sues both a governmental entity and its employees. Section
101.106 of the Texas Civil Practice and Remedies Code states that, “[t]he filing
of a suit under this chapter against a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit
or recovery by the plaintiff against any individual employee of the
governmental unit regarding the same subject matter.” Further, “[i]f a suit is
filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a
motion by the governmental unit.” TEX. CIV. PRAC. & REM. CODE § 101.106(e).
A suit against an individual “regard[s] the same subject matter” as a suit
against a governmental entity when it “arise[s] out of the same actions and
occurrences.” Dall. Cty. Mental Health & Retardation v. Bossley, 968 S.W.2d
339, 344 (Tex. 1998). Here, even if Travis intended to only name Detective
Oseguera with respect to his state law claims, it is apparent that those claims
arise out of the same actions and occurrences as Travis’s claims against the
City—they deal with Travis’s arrest and his subsequent prosecution for sexual
assault. Accordingly, the district court properly granted the City’s motion
under Section 101.106(e) and dismissed the state law claims against the
officers.
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                                 No. 15-10860
      Additionally, the district court properly dismissed Travis’s state law
claims against the City.    The TTCA precludes the state of Texas and its
municipalities from being held liable for intentional torts. See TEX. CIV. PRAC.
& REM. CODE § 101.057 (“This chapter does not apply to a claim . . . arising out
of assault, battery, false imprisonment, or any other intentional tort.”).
Travis’s state law claims alleging false imprisonment, defamation, malicious
prosecution, and intentional infliction of emotional distress are all based on
intentional torts. Thus, Travis’s state law claims against the City are barred
by sovereign immunity.
E. Leave to Amend
      Finally, Travis contends the district court erred in refusing to grant him
leave to amend his complaint by filing a fourth amended complaint. Travis
sought to amend his third amended complaint to add § 1983 claims for
excessive force, fraudulent concealment, and retaliation and intimidation. The
district court denied leave, concluding that Travis’s proposed amendment
constituted a bad faith attempt to artfully draft around defendants’ motions to
dismiss. Additionally, the district court determined that Travis had already
been given ample opportunity to amend his complaint and had unduly delayed
filing his proposed amendment until after defendants filed their motions to
dismiss.
      District courts have wide latitude to consider requests for leave to
amend. In deciding whether to permit an amendment, a district court may
consider factors such as “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182
(1962).    We conclude that the district court gave Travis ample prior
opportunities to plead his best case, and the district court did not abuse its
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discretion in denying Travis leave to amend his complaint a fifth time. See,
e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403–04 (5th
Cir. 2004) (holding that district court did not abuse its discretion in denying
leave to file a third amended complaint where plaintiff had already been given
opportunities to amend and did not indicate what additional facts he could
plead to correct the deficiencies in his complaint).
      AFFIRMED.




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