     Case: 18-30016      Document: 00514866501         Page: 1    Date Filed: 03/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-30016                      United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         March 11, 2019
AMBER HAHMER ULRICH,
                                                                          Lyle W. Cayce
              Plaintiff - Appellant                                            Clerk


v.

CITY OF SHREVEPORT; TERRI SCOTT, in her individual and official
capacities; JIMMY N. RAY; P. A. LAMOTTE,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:14-CV-37


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       The plaintiff appeals from a final judgment dismissing her constitutional
and state law claims arising out of an arrest for a crime that had already been
prosecuted and dismissed.         Because the plaintiff failed to allege that the
defendants remaining in the case were responsible for her injuries, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30016
                     FACTS AND PROCEDURAL HISTORY
      We recite the facts as alleged in Amber Ulrich’s complaint, accepting
them as true for purposes of our review. In June 2007, Detective Jimmy Ray
of the Shreveport Police Department swore out an affidavit alleging that Ulrich
committed battery on June 18, 2007. Detective Ray instituted prosecution in
Shreveport City Court by issuing Ulrich a summons. Detective Ray “knew that
child protection personnel . . . investigated the” battery and that at some point,
Detective “Ray had been informed by Bossier Child Protection services that it
had investigated the allegation and found no cause to proceed.” The charges
against Ulrich were dismissed in February 2008 after she paid administrative
fees and completed “the City Attorney’s probation or pre-trial diversion
program.”
      According to Ulrich’s complaint, at some point the Shreveport City
Attorney and Detective Ray “sent the dismissed case to district court for
prosecution by the Caddo Parish DA.” That occurred even though Detective
Ray “knew or should have known” that the case had already been dismissed
through pretrial diversion. Further, Detective Ray was allegedly negligent by
not determining “if the charge had been disposed of in the city court,” and he
failed to notify Caddo Parish that the case had been dismissed.
      The complaint also alleges that the Caddo Parish District Attorney’s
office mailed a summons to Ulrich at an incorrect address on August 8, 2011,
and then again on September 6, 2011. The second summons was issued “under
the penalty of contempt for failure to appear.” Individuals in the Caddo Parish
District Attorney’s office, knowing that Ulrich had not received either
summons, requested a bench warrant on September 22, 2011, “for her alleged
failure to appear in district court.” The Caddo Parish District Attorney filed a
bill of information on that same date, over two months after the expiration of
the statute of limitations. In 2013, Ulrich was arrested in connection with the
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2011 bench warrant. About three weeks later, Ulrich was released and the
charges dropped because she was “convicted in another jurisdiction.”
      In January 2014, Ulrich filed her initial complaint in the United States
District Court for the Western District of Louisiana.          A third amended
complaint was filed August 2015. It established the final lineup of defendants.
The defendants who were involved in the initial prosecution and then the later
referral to Caddo Parish — loosely described as the City of Shreveport
defendants, including Shreveport Detective Jimmy Ray and Shreveport
Sergeant P.A. Lamotte — were dismissed by the court over Ulrich’s objection
in August 2016. The defendants who actually brought the later charges and
had her arrested, including the Caddo Parish District Attorney and Assistant
District Attorneys Kenya Ellis and Jordan Bird, settled with Ulrich. The
district court granted Ulrich and the Caddo Parish defendants’ joint motion to
dismiss on January 12, 2018.
      On appeal, Ulrich challenges the dismissal of the Shreveport defendants.
She seeks to reinstate claims under 42 U.S.C. § 1983 that her Fourth and Fifth
Amendment rights were violated and separate state-law malicious prosecution
claims against Detective Ray and the City of Shreveport.


                                 DISCUSSION
      We review motions to dismiss de novo. Marucci Sports, L.L.C. v. Nat’l
Collegiate Athletic Ass’n, 751 F.3d 368, 373 (5th Cir. 2014). To survive a motion
to dismiss, a plaintiff must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice” to plead a plausible claim. Id. We accept all factual allegations in the


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plaintiff’s complaint as true, but we do not accept legal conclusions “couched
as . . . factual allegation[s].” Id.
      I. Federal Claims Against Detective Ray
      Ulrich claims that Detective Ray’s transferring of her case to the Caddo
Parish District Attorney subjected her to false arrest and double jeopardy,
violating her Fourth and Fifth Amendment rights. She advances two primary
arguments in support of her claims: Detective Ray should have informed the
Caddo Parish District Attorney that the Bossier Parish child protection
services (“Bossier Parish CPS”) reviewed the incident and found no cause to
proceed, and Detective Ray should have informed the Caddo Parish District
Attorney that Ulrich had already been prosecuted for the same offense. But
for Detective Ray’s failure to inform the Caddo Parish District Attorney’s office
of those facts, Ulrich claims she would not have been arrested in violation of
the Fourth Amendment nor subjected to double jeopardy.
      Ulrich relies principally on Winfrey v. Rogers, 901 F.3d 483 (5th Cir.
2018). There, we stated that a plaintiff states a “Franks violation” of Fourth
Amendment rights “if (1) the affiant, in support of the [arrest] warrant,
includes ‘a false statement knowingly and intentionally, or with reckless
disregard for the truth’ and (2) ‘the allegedly false statement is necessary to
the finding of probable cause.’” Id. at 494 (quoting Franks v. Delaware, 438
U.S. 154, 155-56 (1978)). In Winfrey, we found that an officer’s omitting a
witness statement that was contradicted by physical evidence, misstating the
results of a test, and further omitting a witness’s inconsistent statements, were
sufficient to create a material issue of fact whether the officer acted knowingly,
intentionally, or recklessly in procuring an arrest warrant. Id. Moreover,
without the false or misleading statements and omissions, we held there was
no probable cause to issue an arrest warrant. Id. at 496.


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      The facts in this case differ materially from those in Winfrey. The central
problem for Ulrich is causation. The warrant for her arrest, which led to the
alleged violations of the Fourth Amendment, was not issued for the battery
case that Detective Ray sent to Caddo Parish.        Instead, according to the
complaint, the bench warrant was issued for Ulrich’s failure to appear
pursuant to the undelivered summonses. Detective Ray’s sending the case to
Caddo Parish was not directly the basis for the bench warrant. In order to be
liable under Franks, Detective Ray must have either “assisted in the
preparation of, or otherwise presented or signed a warrant application.”
Melton v. Phillips, 875 F.3d 256, 263 (5th Cir. 2017) (en banc). Ulrich has not
alleged that Detective Ray had any knowledge of or involvement with the
Caddo Parish District Attorney’s office’s decision to seek a bench warrant. The
same analysis applies to Detective Ray’s alleged failure to disclose the Bossier
Parish CPS investigation, since it was related to the battery offense but not
the failure to appear. Ulrich has not pled that Detective Ray violated her
constitutional right to be free from an unlawful arrest.
      Ulrich also argues that Detective Ray’s failure to inform the Caddo
Parish District Attorney’s office that the case had been dismissed pursuant to
pretrial adjudication caused her to be subject to double jeopardy. Without
deciding whether Franks extends to double jeopardy claims, we need only say
that Ulrich has alleged simple negligence. She claims Detective Ray knew or
should have known that the case was dismissed through pretrial diversion and
failed to inform the Caddo Parish District Attorney’s office of that fact.
Elsewhere, Ulrich alleges that Detective Ray was “negligent in failing to
determine” that Ulrich had already been prosecuted in Shreveport City Court.
To allege a Franks claim, Ulrich had to plead that Detective Ray made a
“knowing and intentional omission.” Id. at 264. Her allegations of simple
negligence fail to meet that standard.
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                                      No. 18-30016
       Consequently, Ulrich’s claim under Section 1983 of a Fifth Amendment
violation by Detective Ray was properly dismissed.


       II. State Law Claims
       The district court dismissed Ulrich’s Louisiana state law claims. 1 The
district court specifically found that Ulrich failed to name Detective Ray in her
malicious prosecution claims, and that there was no underlying tortious
conduct by any city employee.
       We first address whether Detective Ray was named as a defendant for
the state law claims.
              a. State Law Claim Against Detective Ray
       Ulrich argues that she did make a claim against Detective Ray in her
third amended complaint by incorporating by reference the first 50-plus
paragraphs of her earlier complaint. Ulrich argues that when she wrote in her
prior complaint that “City of Shreveport and City Attorney, through the acts
of their subordinates, attorneys, [and] police officers . . . are liable unto
Plaintiff,” she was bringing a cause of action against Detective Ray
individually. The defendants argue this same language shows she did not
bring claims against Detective Ray in his individual capacity. A plaintiff is
required, at a minimum, to “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Ulrich fails to allege that Detective Ray was




       1 Although Ulrich argues she appealed all dismissed state law claims, she briefs only
her malicious prosecution claims against Detective Ray and the City of Shreveport itself. Any
other state law claim is waived for the absence of briefing. See N.W. Enters., Inc. v. City of
Houston, 352 F.3d 162, 185 (5th Cir. 2003).
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among those who maliciously prosecuted her. She therefore failed to state a
claim against him for that tort.


            b. Amendment to Add State Law Claim Against Detective Ray
      Ulrich moved to file a fourth amended complaint to add a state law
malicious prosecution claim against Detective Ray, a motion the district court
denied. We review the decision to grant or deny leave to amend a complaint
for abuse of discretion. Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th
Cir. 2006). Leave to amend a complaint should be freely given, unless there is
delay, bad faith, repeated failure to cure deficiencies, or undue prejudice to the
opposing party. Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 566 (5th
Cir. 2003). The allegations Ulrich sought to add were not based on any new
evidence. Ulrich had numerous opportunities to make her claims. The district
court did not abuse its discretion when it denied Ulrich’s request to amend her
complaint for the fourth time.
            c. State Law Claim Against the City of Shreveport
      Ulrich claims that the City of Shreveport is liable under Louisiana law
for malicious prosecution through respondeat superior, because the acts of the
city employees caused her to be prosecuted in Caddo Parish. To state a claim
under Louisiana law for malicious prosecution, a plaintiff must plead facts
supporting the following elements:
      (1) the commencement or continuance of an original criminal or
      civil proceeding; (2) its legal causation by the present defendant in
      the original proceeding; (3) its bona fide termination in favor of the
      present plaintiff; (4) the absence of probable cause for such
      proceeding; (5) the presence of malice therein; and (6) damage
      conforming to legal standards resulting to the plaintiff.
Hope v. City of Shreveport, 862 So. 2d 1139, 1143 (La. App. 2 Ct. 2003).
      Ulrich argues that there was a prosecution initiated by the Caddo Parish
District Attorney, and it was caused by Detective Ray and the City Attorney
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                                 No. 18-30016
sending the case file to Caddo Parish. Further, because the case against her
was dismissed, it was a bona fide termination in her favor. The absence of
probable cause allegedly comes from the Bossier Parish CPS’s finding of “no
cause on the same facts.” Malice, she argues, can be inferred because without
probable cause, the burden shifts to the defendant to show that the defendant
did not act with malice. Id. Finally, Ulrich’s damages included loss of liberty
and income.
      The City of Shreveport argues that Ulrich fails to allege facts sufficient
to support the first and second elements of Louisiana malicious prosecution.
The City first argues that because Caddo Parish instituted the prosecution, not
Shreveport, the first element is not met. However, the first element of the test
merely requires that there be a “commencement” of a proceeding. Id. The City
cited no caselaw that the commencement of a prosecution must be made by the
party sued for malicious prosecution.
      Even if the first element was satisfied, Ulrich must also have alleged the
City of Shreveport legally caused her prosecution. Ulrich’s allegation rests
solely on the referral of her case to Caddo Parish. However, legal causation in
Louisiana requires more than a mere “but for” cause, and intervening actions
on the part of another may break the chain of causation. See, e.g., Mitchell v.
Villien, 19 So. 3d 557, 572-73 (La. App. 4 Ct. 2009). In Mitchell, the court held
that independent actions and an investigation by law enforcement were
sufficient to break the causal chain on a false arrest claim against another
defendant. Id. at 573. The court went even further, noting that although the
defendant’s “negligence instigated the criminal investigation, it was the
independent actions and decisions of” another party that “resulted in the arrest
and imprisonment of” the plaintiff. Id.
      Though Ulrich alleges that the City of Shreveport referred the case for
prosecution, she does not allege that the City or its agents made any
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representations as to its merits.    Ulrich does not allege that the City of
Shreveport or its agents removed anything from its casefile to induce Caddo
Parish to prosecute Ulrich. She specifically alleges that the Caddo Parish
District Attorney filed a bill of information after the expiration of the statute
of limitations. Furthermore, the decision to prosecute, even if influenced by
the City of Shreveport or its agents, was made by the Caddo Parish District
Attorney’s office.
      Because Ulrich’s complaint alleges multiple intervening acts, including
an independently negligent act by the Caddo Parish District Attorney, we find
that Ulrich has failed to allege that the City of Shreveport legally caused the
Caddo Parish District Attorney to commence prosecution. Ulrich failed to state
a malicious prosecution claim against the City of Shreveport.
      AFFIRMED.




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