     Case: 18-40533      Document: 00514741471         Page: 1    Date Filed: 11/29/2018




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

                                    No. 18-40533                             FILED
                                  Summary Calendar                    November 29, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
SCOTT EVERETT SHINE,

              Plaintiff - Appellant

v.

RICKY JONES, Franklin County Sheriff; JOHN DOES, Unknown Agents of
the Franklin County Sheriff Department; HEATH HYDE, Surety,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:17-CV-51


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Scott Shine appeals from the district court’s dismissal of his 42 U.S.C. §
1983 action against Ricky Jones and Heath Hyde. The district court did not
err in finding that Shine failed to state a claim upon which relief could be
granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 18-40533
                       FACTS AND PROCEDURAL HISTORY
       We summarize the facts as pled in Shine’s complaint, as on a motion to
dismiss we accept all well-pled facts as true. Jones v. Greninger, 188 F.3d 322,
324 (5th Cir. 1999). In Shine’s operative complaint, he alleged that bondsman
Hyde provided a bond to release Shine on bail. Shine then alleges that “contact
and communications” between Hyde and Sheriff Jones led Hyde to retract his
bond. Hyde filed an Article 17.19 affidavit 1 with the court shortly after Shine’s
bond posted, claiming he had received information that Shine “made comments
and is making plans to flee while on bond.” The presiding judge issued a
warrant for Shine’s arrest.              Within a week, Shine was arrested and
incarcerated, where he remained until he was convicted on felony charges and
sentenced to life imprisonment.
       On March 3, 2017, Shine filed this suit against Jones, claiming he
violated Shine’s Fourth and Eighth Amendment rights.                        Jones answered,
moving to dismiss Shine’s claims. On May 25, Shine filed his first amended
complaint, to which Jones responded by filing his second motion to dismiss.
On June 26, Jones filed a motion for summary judgment. On August 21, Shine
filed a second amended complaint, adding Hyde as an additional defendant.
Shine sought compensatory damages for time incarcerated, exemplary
damages, reasonable attorney’s fees and costs, and interest. Jones and Hyde
both filed motions to dismiss, which were granted by the district court.
       Shine appeals the dismissal of his claims, arguing that the district court
erred when it (1) refused to consider previously submitted summary judgment




       1Article 17.19 of the Texas Code of Criminal Procedure permits a surety, who desires
to surrender his principal, to file an affidavit of such intention, with notice to the principal’s
attorney, before the court or magistrate before which the prosecution is pending. If the court
or magistrate finds cause, it will issue the capias or a warrant for arrest.
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                                 No. 18-40533
evidence, (2) held that Jones was entitled to qualified immunity, and
(3) dismissed Shine’s Section 1983 conspiracy claim for false arrest.


                                 DISCUSSION
      We begin by addressing Shine’s claim that the district court erred when
it dismissed the suit without considering the affidavits he submitted on
summary judgment on an earlier complaint in this suit. If a court looks to
matters outside the pleadings on a motion to dismiss, the “motion must be
treated as one for summary judgment.” FED. R. CIV. P. 12(d). However, Rule
12(d) does not require that the court consider matters beyond the pleadings on
such a motion; it is only when such additional materials are presented and “not
excluded by the court” that the motion is converted into one for summary
judgment. Id. The district court did not err when it did not consider evidence
beyond the pleadings when ruling on the Rule 12(b)(6) motion to dismiss
Shine’s second amended complaint.
      As to the merits of the dismissal under Rule 12(b)(6), we review such an
order de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). To survive a Rule 12(b)(6) motion, a complaint 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, 570 (2007). A complaint fails if it “tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at
557). Dismissal is appropriate if the complaint lacks factual allegations central
to an element of the claim. Rios v. City of Del Rio, 444 F.3d 417, 421 (5th Cir.
2006).
      Shine’s allegations, taken as true, show that Jones conducted his arrest
pursuant to a valid warrant. Sheriffs are entitled to qualified immunity for
conducting an arrest pursuant to a warrant issued by a proper authority.
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                                  No. 18-40533
Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989). Therefore, Shine’s claim
against Jones must rest on his allegation that Jones and Hyde conspired to
procure a false arrest warrant. Conspiracy is also Shine’s only claim against
Hyde.
        To plead a conspiracy under Section 1983, a plaintiff “must allege facts
that suggest: 1) an agreement between the private and public defendants to
commit an illegal act, and 2) an actual deprivation of constitutional rights.”
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations omitted). Shine
has failed to allege any facts in his complaint that would even suggest an
agreement between Jones and Hyde. Therefore, Shine has failed to plead an
essential element of his claim.
        AFFIRMED.




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