     Case: 18-20164      Document: 00514838207         Page: 1    Date Filed: 02/15/2019




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

                                    No. 18-20164                                FILED
                                  Summary Calendar                       February 15, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
ISRAEL CURTIS,

              Plaintiff - Appellant

v.

DONALD SOWELL; TOMMY GAGE; JOSEPH SCLIDER; DAVID COOK;
ALTON NEELY; TUCK MCLAIN; GRIMES COUNTY; AND
MONTGOMERY COUNTY,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-810


                         ON PETITION FOR REHEARING
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       IT IS ORDERED that the petition for rehearing is DENIED, however,
our prior panel opinion, Curtis v. Sowell, 746 F. App’x 406 (5th Cir. 2018), is
WITHDRAWN. The following opinion is SUBSTITUTED therefor.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-20164     Document: 00514838207      Page: 2   Date Filed: 02/15/2019



                                   No. 18-20164
                              I.     BACKGROUND
      This case arises from the police raid of an automobile auction on June
27, 2015, where Appellant Israel Curtis was arrested along with Leslie
Shipman and Jerry Williams. Shipman and Williams were selling the
automobiles as part of the sale of their automobile repair business. They had
hired Curtis to be the auctioneer. Fifty-six vehicles were also seized from the
auction.
      Probable cause for the raid was determined by a district court judge in
Grimes County, Texas, and the vehicles were seized pursuant to a search
warrant. The probable cause affidavit contained allegations that Shipman had
been cited previously for selling vehicles without a license, had continued to
sell vehicles without a license, and intended to liquidate many vehicles at the
June 27, 2015 auction. Additionally, the affidavit alleged that many of the
vehicles up for auction did not have proper title paperwork, and that Shipman
had taken unlawful possession of a vehicle up for sale at the auction. The
affidavit further stated that Curtis was listed as the auctioneer, but that
Curtis’s auctioneer license had expired in April 2015 and was not current.
      All three men were charged by a grand jury indictment on October 29,
2015. The charges against Curtis were eventually dismissed, while Williams
and Shipman pleaded guilty to selling vehicles without a license. Curtis paid a
$250 fine to the Texas Department of Licensing and Regulation for conducting
an auction with a suspended auctioneer license.
      Curtis sued Sheriff Donald Sowell, Deputy David Cook, and District
Attorney Tuck McLain from Grimes County; Sheriff Tommy Gage, Lieutenant
Joseph Sclider, and Detective Alton Neely from Montgomery County; Grimes
County; and Montgomery County (“Appellees”) alleging violations of his First,
Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, as well as
various state tort law claims, including a claim of conspiracy. The district court
                                        2
    Case: 18-20164     Document: 00514838207      Page: 3   Date Filed: 02/15/2019



                                  No. 18-20164
granted Appellees’ motion to dismiss all claims pursuant to Fed. R. Civ. P.
12(b)(6). We AFFIRM.
                               II.    DISCUSSION
      This court reviews a district court’s grant of a motion to dismiss de novo.
McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017). “Under the 12(b)(6) standard,
all well-pleaded facts are viewed in the light most favorable to the plaintiff, but
plaintiffs must allege facts that support the elements of the cause of action in
order to make out a valid claim.” City of Clinton v. Pilgrim’s Pride Corp., 632
F.3d 148, 152–53 (5th Cir. 2010). Allegations need not be detailed, but they
“must provide the plaintiff’s grounds for entitlement to relief––including
factual allegations that when assumed to be true ‘raise a right to relief above
the speculative level.’” Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
   A. Fourth Amendment Claim
      Curtis contends that the district court erred in dismissing his Section
1983 claim alleging that he was arrested and prosecuted without probable
cause in violation of the Fourth Amendment. The district court determined
that the “impartial intermediary doctrine” absolved Appellees of liability. We
agree.
      “It is well settled that if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir.
1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th
Cir. 2003) (en banc). And “[o]ur precedents have applied this rule even if the
independent intermediary’s action occurred after the arrest, and even if the
                                        3
    Case: 18-20164        Document: 00514838207   Page: 4   Date Filed: 02/15/2019



                                   No. 18-20164
arrestee was never convicted of any crime.” Buehler v. City of Austin/Austin
Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016). So unless an exception to the
independent intermediary rule applies, Curtis’s grand jury indictment dooms
his false arrest claim.
      There is an exception to the independent intermediary rule “if the
plaintiff shows that ‘the deliberations of that intermediary were in some way
tainted by the actions of the defendant.’” Deville v. Marcantel, 567 F.3d 156,
170 (5th Cir. 2009) (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1998)).
“[B]ecause the intermediary’s deliberations protect even officers with
malicious intent,” Buehler, 824 F.3d at 555, “a plaintiff must show that the
[officer’s] malicious motive led the [officer] to withhold relevant information or
otherwise misdirect the independent intermediary by omission or commission.”
McLin, 866 F.3d at 689. When analyzing allegations of taint at the motion to
dismiss stage, “‘mere allegations of ‘taint,’” Cuadra v. Hous. Indep. Sch. Dist.,
626 F.3d 808, 813 (5th Cir. 2010) (quotation omitted), “may be adequate to
survive a motion to dismiss where the complaint alleges other facts supporting
the inference.” McLin, 866 F.3d at 690.
      But Curtis does not allege that the Appellees deceived the grand jury or
withheld material information from it. He alleges that District Attorney
McLain “persuaded the grand jury to indict Mr. Shipman, Mr. Williams, and
Mr. Curtis, even though Mr. McLain knew that there was no factual or legal
basis for the charge.” But that is not an allegation that McLain, or anyone else,
deceived or withheld material information from the grand jury. McLain’s
subjective beliefs about the merits of the prosecution—even if those beliefs rose
to the level of “malicious intent”—are inconsequential. Buehler, 824 F.3d at
555. Because Curtis failed to present well-pleaded allegations of taint, and
because a grand jury found probable cause, the district court did not err in
dismissing this claim.
                                         4
     Case: 18-20164       Document: 00514838207         Page: 5    Date Filed: 02/15/2019



                                      No. 18-20164
    B. First Amendment Claim
       Curtis next argues that the district court erred in dismissing his Section
1983 claim of retaliation in violation of the First Amendment. He contends that
he was prosecuted because his attorney published writings criticizing the
conduct of various Appellees. The district court determined that Curtis failed
to state a plausible claim because “retaliatory criminal prosecutions in
violation of the First Amendment are actionable only if a plaintiff can also
prove the common-law elements of malicious prosecution, including the
absence of probable cause to prosecute[,]” and probable cause was established
by both a district court judge and a grand jury. Keenan v. Tejeda, 290 F.3d 252,
260 (5th Cir. 2002). We have already explained that probable cause was
independently established by the grand jury, and it was not defeated by “taint.”
The district court did not err by dismissing this claim. 1
    C. Fourteenth Amendment Claims
       Curtis argues that the district court erred in dismissing his Section 1983
claims under the Fourteenth Amendment. He alleges that his due process
rights were violated when his auctioneer license was suspended, that he
properly pleaded a claim under the stigma-plus-infringement doctrine, and
that he properly pleaded a claim for selective enforcement and prosecution.
       1. Due Process
       Curtis contends the district court ignored his Fourteenth Amendment
claim that Appellees deprived him of his auctioneer license without due
process. However, he raises this claim for the first time on appeal and as such



1Curtis argues that he can make out a viable retaliatory prosecution claim, even if there was
probable cause for his arrest, under Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945
(2018). Lozman is inapposite. It concerned an individual who was arrested by officers with
probable cause, but who were acting under an “official retaliatory policy” to silence the
plaintiff. Id. at 1954. Here, Curtis did not allege that McLain prosecuted him as part of an
“official retaliatory policy” to silence him (or, more accurately, his attorney).
                                             5
    Case: 18-20164      Document: 00514838207        Page: 6    Date Filed: 02/15/2019



                                    No. 18-20164
it will not be considered by this court. Stewart Glass & Mirror, Inc. v. U.S. Auto
Glass Disc. Ctr., 200 F.3d 307, 316–17 (5th Cir. 2000).
      2. Stigma-Plus-Infringement
      Establishing a stigma-plus-infringement claim requires both “the
infliction of a stigma on a person’s reputation by a state official” and “an
infringement of some other interest.” Blackburn v. City of Marshall, 42 F.3d
925, 935–36 (5th Cir. 1995). “To satisfy the stigma prong of this test, ‘the
plaintiff must prove that the stigma was caused by a false communication.’” Id.
(quoting Phillips v. Vandygriff, 711 F.2d 1217, 1221 (5th Cir. 1983) (emphasis
in original)). Here, Curtis contends that Appellee Sclider made a false
statement that inflicted stigma on Curtis’s reputation. Sclider said, in a
televised statement as the auction was raided and Curtis, Shipman, and
Williams were arrested, that police can presume vehicles are stolen if they are
not registered by the possessor within twenty days. Curtis alleges this
statement was false. However, as found by the district court, this statement
accurately summarizes Texas Penal Code § 31.03(c)(7)(B). Curtis claims the
text of the statute requires the state to establish that a vehicle was stolen
before imputing that knowledge to a purchaser. This interpretation is
contradicted by a plain reading of the statute, which states in relevant part
that: “[A]n actor who purchases or receives a used or secondhand motor vehicle
is presumed to know on receipt . . . of the motor vehicle that [it] has been
previously stolen . . . if the actor knowingly or recklessly. . . fails to file . . . the
registration license receipt and certificate of title” within twenty days of
receiving the vehicle. Tex. Penal Code § 31.03(c)(7)(B). The district court did
not err in dismissing Curtis’s stigma-plus-infringement claim because the
statement at issue was not false.




                                           6
     Case: 18-20164       Document: 00514838207          Page: 7     Date Filed: 02/15/2019



                                       No. 18-20164
       3. Selective Enforcement and Prosecution
       Curtis alleges in his pleadings that the enforcement of his suspended
license and subsequent prosecution were motivated by a desire to “retaliate
against him for exercising his First Amendment rights.” This claim is separate
from the claim of retaliation under the First Amendment, though the district
court only addressed the retaliation claim.
       “[T]o successfully bring a selective prosecution or enforcement claim, a
plaintiff must prove that the government official’s acts were motivated by
improper considerations, such as race, religion, or the desire to prevent the
exercise of a constitutional right.” Bryan v. City of Madison, 213 F.3d 267, 277
(5th Cir. 2000). Curtis contends that his attorney’s published writings
criticizing Appellees, which occurred post-arrest and pre-indictment, were the
reason the prosecutor “persuaded” the grand jury to indict Curtis. Even if
Curtis’s attorney’s writings suffice as an underlying constitutionally protected
activity, 2 Curtis fails to plead facts sufficient to avoid dismissal. His complaint
states that his attorney sent a link alleging misconduct by Appellees to the
grand jury, and in response District Attorney Tuck McClain “persuaded the
grand jury to indict” Curtis. This timeline makes clear that the decisions to
enforce and prosecute were decided before Curtis’s attorney published the
writings at issue. Even under the Fed. R. Civ. P. 12(b)(6) standard, where “all
well-pleaded facts are viewed in the light most favorable to the plaintiff,”




2 We do not reach the question of whether writings by Curtis’s attorney, rather than by
Curtis, suffice as the underlying “constitutionally protected activity.” Keenan, 290 F.3d at
258; see also Eng v. Cooley, 552 F.3d 1062, 1067–68 (9th Cir. 2009) (declining to consider
whether a client has “third-party standing to assert a claim based, in part, upon the violation
of his attorney’s right to free speech”).

                                              7
     Case: 18-20164        Document: 00514838207          Page: 8     Date Filed: 02/15/2019



                                        No. 18-20164
Curtis’s pleadings fail to allege facts “that support the elements” of selective
enforcement or prosecution. City of Clinton, 632 F.3d at 152. 3
                                    III.   CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.




3 Because Curtis’s federal conspiracy claim cannot stand without an underlying
constitutional violation, it fails as well. Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).

                                               8
