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

                                                                            FILED
                                                                         January 12, 2009
                                     No. 08-50407
                                   Summary Calendar
                                                                      Charles R. Fulbruge III
                                                                              Clerk

RAYMOND LESLIE SANDERS

                                                  Plaintiff - Appellant
v.

MURRAY AGNEW, Individually and in his
official capacity; JEFF LANGLEY, Individually
and in his official capacity; SHANNON ROUSEY,
Individually and in his official capacity; MIKE
BELL, Individually and in his official capacity;
UNNAMED OFFICERS, Individually and in their
official capacities; OFFICE OF THE DISTRICT
ATTORNEY, LIMESTONE COUNTY, TEXAS;
ROY DEFRIEND, Individually and in his official
capacity; DENNIS WILSON, Individually and in
his official capacity; LIMESTONE COUNTY, TEXAS

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:06-cv-185


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 08-50407

      Plaintiff-Appellant Raymond Leslie Sanders (“Sanders”) appeals from the
district court’s dismissal of his claims against Dennis Wilson and Limestone
County; grant of summary judgment on his claims against Murray Agnew and
Jeff Langley; denial of a motion for a scheduling order, motion for leave to
amend complaint, motion for an oral hearing, motion for continuance; and
quashing a subpoena for a Justice of the Peace. For the following reasons, we
AFFIRM.
I.    Factual and Procedural Background
      This case arose from the Limestone County authorities’ (“officers”)
investigation of a reported vehicle theft. David Elmore filed a theft complaint
on his truck on December 11, 2004 by phone in Dallas, Texas. A confidential
informant told an officer that Sanders was hiding Elmore’s stolen truck in his
barn, and the officer verified that Elmore had reported a stolen vehicle. A
separate confidential informant told an officer that he had actually seen
Elmore’s stolen truck in Sanders’s barn. The officer also learned that Elmore
had made a claim with an insurance company for the stolen vehicle.
      The officers first attempted to speak with Sanders about the information
they received by going to Sanders’s business on December 23, 2004. Sanders and
his wife were uncooperative with the officers at the business location, so the
officers   obtained   a   search   warrant.       The   officers   submitted   an
affidavit/application for a search warrant to Justice of the Peace Marcus
Hannah. During the process, an officer received a phone call from another
officer advising that he had just spoken to a man claiming to be Elmore, the
owner of the allegedly stolen truck, who said there had been a mistake and a
family friend actually had the truck.
      The officer considered the story suspicious, as the call was only made after
officers were posted at Sanders’s property. The officer reported this information



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to the Justice of the Peace, but the Justice of the Peace nonetheless issued the
search warrant.
      Officers searched Sanders’s property and found a truck matching the
description of Elmore’s truck that was reported stolen padlocked in a barn. The
front and back license plates had been removed from the truck, the Nader
sticker had been removed, the VIN was covered, the truck was devoid of personal
effects, and the toolbox was missing with only an outline of a toolbox remaining
on the bed of the truck. Sanders was arrested, charged with theft, and jailed.
In January 19, 2005, Sanders’s case was presented to a grand jury, which did not
return an indictment. Plaintiff was still held on bond, and on January 20, 2005,
there was an examining trial on the theft charge. The trial was continued until
February 17, 2005, where the district attorney conceded that there was no
probable cause. The court released Sanders from bond.                The linchpin of this
“prank” involved Elmore’s cousin, Wesley Elmore (“Wesley”), and Wesley’s
friend, Shannon Simmons. This duo drove Elmore’s truck to Sanders’s property
without a note or other means of notifying Sanders that the truck was there.
Elmore reported the truck stolen to the Dallas Police Department. Wesley did
not report the “prank” to Elmore until the following week. When Elmore learned
about the “prank,” he started calling the Dallas Police Department to “un-report”
the truck as stolen. At some point, Elmore also went to Sanders’s home while
Sanders was not there and removed the toolbox from the truck. On December
23, 2004, Elmore called the Limestone County Sheriff’s Office before the search
warrant was executed and informed an officer that the truck was not stolen.1


      1
          The “prank” may be more appropriately characterized as a scheme. There were
numerous questionable issues surrounding the prank, including numerous alleged
misrepresentations by Elmore to his insurance company; Wesley’s ability to drive Elmore’s
truck through a locked security gate on Sanders’s property; Elmore’s ability to remove the
toolbox from Sanders’s barn although it was padlocked; the fact that the truck was dropped
off at Sanders’s house instead of his auto repair shop, which was unusual considering that
Sanders previously had not worked on Elmore’s vehicles at his home; Elmore’s awareness that

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       Sanders filed a complaint on July 5, 2006, bringing claims under 42 U.S.C.
§ 1983 related to the search and seizure of his property and arrest. Defendants
filed a joint motion to dismiss, seeking dismissal based on failure to state a
claim; prosecutorial immunity, qualified immunity, and/or quasi-judicial
immunity; break of causation; issue preclusion; and/or collateral estoppel. The
magistrate judge issued a Report and Recommendation (“R & R”), recommending
that Defendants’ joint motion to dismiss be granted, to which Sanders objected.
       The district court conducted a de novo review and dismissed Sanders’s
claims against Roy Defriend, the district attorney, as barred by prosecutorial
immunity. As to officers Jeff Langley and Murray Agnew, who obtained the
search warrant, the district court found that fact issues needed to be determined
before dismissing claims against them based on qualified immunity.
Specifically, an issue existed at the motion to dismiss stage as to whether the
officers made a misrepresentation in their affidavit for the arrest warrant by
stating that Sanders stole Elmore’s truck when they should have known that it
was not stolen. As to Dennis Wilson, the district court granted the motion to
dismiss finding that he was entitled to qualified immunity. The court also found
that Sanders had failed to allege any policies of Limestone County that were the
moving force behind any of the alleged constitutional violations, and the court
granted the motion to dismiss as to Limestone County. Sanders did not file any
objections to the magistrate judge’s recommendation to dismiss claims against
Defendants Rousey and Bell or the conspiracy claim against all the Defendants.
The district court nonetheless conducted a de novo review, finding that the


it was all a “prank” about the same time that he learned that his insurance had lapsed for non-
payment; Sanders fled when officers first attempted to talk to him about the truck; Elmore saw
two officers at Sanders’s property but did not stop to clarify things; Elmore had reported
multiple thefts in the last few years from which he received insurance settlements; and
Sanders’s business routinely created work orders for serviced vehicles, but no work order was
created for the truck. While the state court judge found that there was no probable cause for
the arrest, the judge found that there was probable cause as to insurance fraud.

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                                   No. 08-50407

recommendations as to Rousey, Bell, and the conspiracy claim should be
adopted.
      The magistrate judge also recommended denying Sanders’s motion for
partial summary judgment based on the recommendation to grant Defendants’
motion to dismiss. Because the district court denied the motion to dismiss as to
some defendants, the court re-referred Sanders’s motion for partial summary
judgment so it could be considered with any other motion for summary
judgment.
      After the magistrate judge’s R & R was filed, Sanders filed a motion for
leave to amend his complaint. The district court denied the motion, stating that
Sanders had failed to provide any specific explanation regarding how “justice so
require[d]” the requested amendment.
      Murray Agnew and Jeff Langley filed their motion for summary judgment
on October 5, 2007. On November 1, 2007, Sanders filed a motion for an oral
hearing on the motion for summary judgment, which the court denied. Sanders
also issued a deposition subpoena for a Justice of the Peace, which Agnew and
Langley sought to quash. The court granted the Defendants motion to quash
because Sanders failed to issue the subpoena through the clerk.
      On December 19, 2007, the magistrate judge issued a R & R that Agnew
and Langley’s motion for summary judgment be granted. Sanders sought
additional time to filed objections, and the district court extended the time to file
objections until January 16, 2008. Sanders did not file objections, however, until
January 17, 2008.
      The court issued its Memorandum Opinion and Order on March 20, 2008,
adopting the R & R of the magistrate judge, and granting Agnew and Langley’s
motion for summary judgment. Judgment was entered on March 21, 2008, and
Sanders timely appealed.
II.   Discussion


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                                  No. 08-50407

      A. Motion to Dismiss
      We review dismissal of a complaint for failure to state a claim de novo.
Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2008) (citation
omitted). We accept all well-pleaded facts as true, “viewing them in the light
most favorable to the plaintiff. Id. (citation omitted). The plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “Factual 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).” Id.
at 1965 (internal citation and footnote omitted).
      Sanders challenges the grant of the motion to dismiss as to Limestone
County and Dennis Wilson. Even under the liberal construction afforded pro se
litigants, Sanders fails to state a claim against Limestone County and Wilson.
First, municipalities may not be held liable under a theory of respondeat
superior, and Sanders failed to allege any policy of Limestone County that was
the moving force behind any of the alleged constitutional violations. Therefore,
Limestone County cannot be held liable. See Board of County Comm’rs v.
Brown, 520 U.S. 397, 403 (1997).
      Sanders also sought to hold Wilson liable based on acts of his
subordinates. Sanders does not allege that Wilson was personally involved with
the alleged acts, and therefore, the district court properly granted the motion to
dismiss as to Wilson based on qualified immunity. See Estep v. Dallas County,
Tex., 310 F.3d 353, 361 (5th Cir. 2002) (citing Watson v. Interstate Fire & Cas.
Co., 611 F.2d 120 (5th Cir. 1980), for the proposition that “a sheriff without any
personal involvement was properly dismissed from a § 1983 suit”). We hold that
the district court properly dismissed Sanders’s claims against Limestone County
and Dennis Wilson.
      B. Motion for Scheduling Order and Motion for Oral Hearing

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                                  No. 08-50407

      We afford great deference to a district court’s ruling on scheduling
matters, reviewing only for abuse of discretion. See Hodges v. United States, 597
F.2d 1014, 1018 (5th Cir. 1979). Sanders argues that the magistrate judge
abused his discretion by failing to grant an unopposed petition for a scheduling
order and waiting more than three months to issue a ruling on the motion for
scheduling order. He also contends that the district court abused its discretion
by denying his motion for an oral hearing on a summary judgment motion and
failing to rule on the motion within a reasonable time.
      The Local Rules of the Western District of Texas expressly provide that
“the allowance of an oral hearing shall be within the sole discretion of the judge
to whom the motion is assigned.” W.D. Tex. Local Rule CV-7(g). The district
court did not abuse its discretion in denying Sanders’s motion for an oral
hearing.
      Regarding the motion for a scheduling order, the Local Rules state that
“the parties shall submit a proposed scheduling order” to the court. Local Rule
CV-16(c). Sanders does not assert that he submitted the required proposal, and
it appears from the record that the parties did not do so. Sanders failed to
comply with the Rules of the court, and thus, we find no abuse of discretion by
failing to enter a scheduling order.
      Even assuming the parties submitted a proposed scheduling order, we still
find no abuse of discretion. Sanders filed this suit on July 6, 2006. Sanders did
not return the executed summons until more than two months later, in late
September and early October. Within days, the Defendants filed a joint motion
to dismiss on October 10, 2006. In February 2007, the court directed the parties
to brief the issue of qualified immunity. Sanders did not seek a motion for a
scheduling order until April 9, 2007, after the parties had submitted briefing on
qualified immunity. Further, on May 2, 2007, Sanders sought a protective order
to stay all depositions in the action, which the court granted on the same date


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                                    No. 08-50407

it entered its R & R for dismissal of Sanders’s action. In denying the motion for
scheduling order, the magistrate judge stated that “[b]ecause a report and
recommendation has been entered, this case has been returned to the docket of
the district judge. Thus, the district judge, if necessary, will revisit this issue
and enter such an order in accordance with the strictures of his docket.”
      Sanders even acknowledged in his motion for a scheduling order that “it
would be proper to await the court’s ruling on the Defendants’ motion to dismiss
before filling [sic] any proposed scheduling order or attempting any discovery.”
Where Sanders sought a stay seeking protection from discovery and “felt it
would be proper to await the court’s ruling on the Defendants’ motion to
dismiss,” we find that the magistrate judge did not abuse his discretion in not
issuing a scheduling order.

      C. Motion to Amend Pleading
      After the magistrate judge entered its R & R recommending dismissal of
Sanders’s claims, Sanders filed a motion for leave to amend his complaint
pursuant to Federal Rule of Civil Procedure 15(a). Sanders stated that he was
seeking to amend the complaint to conform to evidence produced during
discovery and “to protect the rights of the Defendants to a proper defense, as
well as the Plaintiff’s right to justice.”
      Rule 15(a) provides in part that the “court should freely give leave when
justice so requires.” FED. R. CIV. P. 15(a)(2). The district court denied Sanders’s
motion, stating that “Plaintiff has failed to provide any specific explanation
regarding how or why ‘justice so requires’ the requested amendment.” We agree.
Even on appeal, Sanders fails to explain why justice so required that he be
granted leave to amend. See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir.
1999). The district court did not err in denying Sanders’s motion to amend the
complaint.


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                                 No. 08-50407


      D. Motion to Quash Subpoena
      Sanders served Justice of the Peace Hanna with a subpoena to appear for
a deposition. Sanders states that he was seeking testimony relating to Judge
Hanna’s signing of the search warrant. It is imperative to “carefully scrutinize”
the basis for compelling a judge to testify as to action taken in his judicial
capacity. Gary W. v. State of La., Dep’t of Health & Human Res., 861 F.2d 1366,
1369 (5th Cir. 1988) (referring to the longstanding principle as the mental
processes rule). After careful review, we find no abuse of discretion in quashing
the subpoena.

      E. Motion to Strike Defendants’ Motion for Summary Judgment

      Sanders contends that the district court abused its discretion when it
denied his motion to strike the Defendants’ motion for summary judgment, as
Sanders was seeking to obtain Judge Hanna’s testimony. Generally, summary
judgment may be granted only after an “adequate time for discovery.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review the denial of Sanders’s
motion to strike for an abuse of discretion. See Paul Kadair, Inc. v. Sony Corp.
of Am., 694 F.2d 1017, 1029 (5th Cir. 1983).       A plaintiff's entitlement to
discovery prior to a ruling on a motion for summary judgment is not unlimited,
and may be cut off when the record shows that the requested discovery is futile.
See id. at 1029-30.

      Because the court did not abuse its discretion in quashing the subpoena
for Judge Hanna’s testimony, the court did not abuse its discretion in denying
a motion to strike a summary judgment motion based on Sanders’s attempts to
obtain Judge Hanna’s testimony.
      F. Motion for Summary Judgment



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                                      No. 08-50407

       Sanders assigns error to the district court’s grant of summary judgment
in favor of Defendants, but Sanders’s “objections” do not specify the specific
claim(s) to which the objections relate. We have liberally construed Sanders’s
objections to apply to each relevant claim.
       We review a district court’s grant of summary judgment de novo. LeMaire
v. La. Dep't of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary
judgment is appropriate when “the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c). A genuine issue of material fact exists if the summary judgment
evidence is such that a reasonable jury could return a verdict for the non-
movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All the facts
and evidence must be taken in the light most favorable to the non-movant.
LeMaire, 480 F.3d at 387.
       Most of Sanders’s objections relate to facts that occurred prior to the
issuance of the search warrant.2 Sanders’s objection to “Statement 1”3 pertains
to when the reportedly stolen vehicle was taken to Sanders’s property;
“Statement 2” goes to the omission of a fact that an officer had already spoken
with Sanders’s wife; and “Statement 3,” “Statement 4,” and “Statement 5” relate
to the phone call from Elmore to an officer. These objections demonstrate no
reversible error. An officer executing a warrant is entitled to dismissal of claims
brought against him “if the warrant is regular on its face and the officer does not
act in bad faith or with notice of an infirmity of the warrant.” Kugle v. Shields,


       2
          Sanders also seems to base his assignment of error as to the summary judgment
ruling on the court’s grant of the motion to quash the subpoena for Judge Hanna’s testimony.
To the extent Sanders relies on the discovery ruling quashing the subpoena for Judge Hanna’s
testimony, we find no reversible error on that basis for the reasons discussed above.
       3
         Sanders assigns error to specific statements of the court, and we likewise will use
Sanders’s designation for reference purposes.

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                                  No. 08-50407

62 F.3d 395 (5th Cir. 1995) (unpublished); Duckett v. City of Cedar Park, Tex.,
950 F.2d 272, 280 (5th Cir. 1992). There is no summary judgment evidence of
bad faith, a material omission by the officers in obtaining the search warrant,
or any infirmity in the warrant, so the officers were entitled to summary
judgment based on the execution of the search warrant.
       “Statement 6” and “Statement 7” relate to the arrest warrant. Sanders
focuses on the purported lack of probable cause to arrest him for the stolen
vehicle; Sanders does not dispute that the officers had probable cause to arrest
him for insurance fraud. This assignment of error is also without merit. See
United States v. Saunders, 476 F.2d 5, 7 (5th Cir. 1973) (“When an officer makes
an arrest, which is properly supported by probable cause to arrest for a certain
offense, neither his subjective reliance on an offense for which no probable cause
exists nor his verbal announcement of the wrong offense vitiates the arrest.”).
       Sanders asserts other general objections, including absence of an impartial
trial judge and repeated objections regarding execution of the search warrant
and arrest. Having considered the parties’ briefs and the record, we conclude
that Sanders’s general objections are without merit.

III.   Conclusion
       Because we find no reversible error, we AFFIRM.




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