     Case: 17-11268      Document: 00514789450         Page: 1    Date Filed: 01/10/2019




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

                                                                                FILED
                                      No. 17-11268                       January 10, 2019
                                                                           Lyle W. Cayce
ANTHONY MONTGOMERY,                                                             Clerk


              Plaintiff - Appellant

v.

RALPH WALTON, JR.; DAVID SUTHERLAND; BRUCE ESPIN; NIN
HULETT; GAY JOHNSON; JOHNNY MILLER; KIMMYE LADINE BELL;
ADAM WAYNE BRAMBLETT; JOSEPH JOHNSON,

              Defendants - Appellees




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:17-CV-767


Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Anthony Montgomery, Texas prisoner # 1248653 proceeding pro se and
in forma pauperis, appeals the dismissal of his 42 U.S.C. § 1983 conspiracy
claim.     The district court dismissed his claims against the state actor
defendants pursuant to 28 U.S.C. § 1915A for failure to state a claim and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-11268
dismissed his claims against the private citizen defendants for lack of
supplemental jurisdiction.
      The district court’s ruling was based on Montgomery’s amended
complaint. “An amended complaint supersedes the original complaint and
renders it of no legal effect unless the amended complaint specifically refers to
and adopts or incorporates by reference the earlier pleading.” King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994). Thus, Montgomery’s appeal is from the
district court’s dismissal of his amended complaint—the only document before
us on this appeal.
      In this amended complaint, Montgomery’s allegations are muddled and,
at best, very loosely tied together. He alleges that he worked as an informant
for the “FBI/Homeland Security” to infiltrate organized crime in the Dallas
area. At some point in 2003, his FBI handlers instructed him to engage Bruce
Espin, who was then the Police Chief of Granbury, Texas, in an attempt to
expose corruption among Hood County officials. “Sometime in 2015,” Ralph
Walton, Jr., a state district judge in Hood County, Texas, caught wind of the
federal investigation and discovered Montgomery’s role as an FBI informant.
Walton shared Montgomery’s identity with Espin and the two conspired to
have him falsely arrested or killed by the criminal organizations he had
infiltrated. Walton and Espin are alleged to have also elicited aid from three
private citizens, whose connection with any of the parties is unclear from the
face of the amended complaint.       These private citizens allegedly placed
incriminating evidence in Montgomery’s car, leaked information about his
status as an informant on the “Dark Web,” directly informed the Aryan
Brotherhood that he was an informant, and eventually drugged and raped him
and posted the video on the internet.
      Montgomery raises one issue on appeal: whether the district court
abused its discretion in determining that he failed to state a conspiracy claim
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                                 No. 17-11268
under § 1983 against Judge Ralph Walton, Jr., former Police Chief Bruce
Espin, Detective Gay Johnson, Deputy Johnny Miller, Kimmye Bell, Adam
Bramblett, and Joseph Johnson.
      We review the district court’s dismissal of Montgomery’s § 1983
conspiracy claim de novo, employing the same standard that we apply when
reviewing the grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011)
(applying the plausibility standard of Rule 12(b)(6) to motion to dismiss under
§ 1915A and § 1915(e)(2)); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)
(employing de novo review for dismissals that refer to both 28 U.S.C. § 1915A
and § 1915(e)(2)).
      To establish a conspiracy claim under § 1983, the plaintiff must show
that there was an agreement among the alleged co-conspirators to deprive him
of his constitutional rights and that such an alleged deprivation actually
occurred. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994); Estate of
Farrar v. Cain, 941 F.2d 1311, 1313 (5th Cir. 1991). Conclusory allegations
that do not reference specific factual allegations tending to show an agreement
do not suffice to state a civil rights conspiracy claim under § 1983.        See
Arsenaux v. Roberts, 726 F.2d 1022, 1023–24 (5th Cir. 1982). Although we
accept well-pleaded facts as true and view them in the light most favorable to
the plaintiff, a complaint “that offers labels and conclusions” or “naked
assertion[s] devoid of further factual enhancement” is not plausible for
purposes of Rule 12(b)(6). Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Therefore, to establish
his conspiracy claim, Montgomery must plead specific, nonconclusory facts
that establish that there was an agreement among the defendants to violate
his federal civil rights. See Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th


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                                  No. 17-11268
Cir. 2004) (“Allegations that are merely conclusory, without reference to
specific facts, will not suffice” to establish a § 1983 conspiracy claim).
      As noted above, Montgomery’s amended complaint is disorganized and
the facts are very loosely tied together.         At points in this complaint,
Montgomery alleges that the defendants “act[ed] in concert,” “agree[d]” to
plant contraband, and “elicited aid” from each other for the purpose of violating
his civil rights.    Most importantly, although he alleges there was an
agreement—an agreement to kill or imprison him—these allegations are
largely conclusory without any identification of time, date, or circumstance.
Cf. Jabary v. City of Allen, 547 F. App’x 600, 611 (5th Cir. 2013) (holding that
allegations that local officials “actively conspired with each other” and engaged
in “several conversations, private meetings, and other communications” to
deprive plaintiff of his civil rights were insufficient under Rule 12(b)(6) to state
a § 1983 conspiracy claim). It would appear that Montgomery strives to allege
an overarching conspiracy by persons associated for the purpose of setting him
up for the criminal conduct that has landed him in prison. Yet, there is no
claim that his present incarceration is unlawful. Furthermore, there is no
alleged common motive between Espin and Walton, or among all of the
defendants for that matter, except a vague and conclusory assertion that they
“wanted [Montgomery] dead” or imprisoned because he was a threat to Espin.
Finally, Montgomery pleads no specific facts regarding the connection between
the public officials and private citizens or where or when the criminal conduct
occurred. In short, the allegations are incomprehensible for purposes of stating
a claim of conspiracy against the defendants to deprive him of any cognizable
constitutional rights.     See Arsenaux, 726 F.2d at 1023–24 (“The general
charges here are conclusory, and no specific allegation of facts tending to show
a prior agreement has been made.”).


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                                No. 17-11268
      Accordingly, the district court’s judgment is AFFIRMED. Additionally,
we inform Montgomery that the district court’s dismissal for failure to state a
claim and our affirmance count as one strike for purposes of 28 U.S.C.
§ 1915(g). We warn Montgomery that if he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g). Finally, Montgomery’s motion
for the appointment of counsel is denied.




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