     Case: 18-20022      Document: 00514887905         Page: 1    Date Filed: 03/26/2019




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

                                      No. 18-20022                            FILED
                                                                        March 26, 2019
                                                                         Lyle W. Cayce
MEGAN WINFREY,                                                                Clerk

              Plaintiff - Appellant

v.

LENARD JOHNSON, Former San Jacinto County Sheriff’s Deputy Chief,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-448


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       After her murder conviction was overturned, Megan Winfrey sought
damages under § 1983 and has appealed the district court’s grant of partial
summary judgment dismissing her Fourth and Fourteenth Amendment
claims.    Because a panel of this court has already addressed the same issues
in her brother’s case, this panel is bound by precedent to reverse and remand
on Winfrey’s Fourth Amendment claim.                The district court’s dismissal of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20022
Winfrey’s Fourteenth Amendment claims was proper, however, and this court
declines to address as untimely her arguments concerning her expert witness.
Accordingly, the district court’s partial summary judgment order is
REVERSED in part and AFFIRMED in part, and the case is REMANDED.
                               I.    BACKGROUND
      Megan Winfrey (“Megan”) was convicted of capital murder but her
conviction was overturned on appeal after six years imprisonment.           Winfrey v.
Texas, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013) (“Winfrey I”).               Lenard
Johnson, the Appellant, is a former deputy at the San Jacinto County Sheriff’s
Office who drafted and signed the arrest warrants for Megan, her father
Richard Winfrey, Sr. (“Senior”), and her brother Richard Winfrey, Jr.
(“Junior”). He also took witness testimony from David Campbell, a jailhouse
informant who implicated the Winfreys in the murder of school janitor Murray
Wayne Burr.     The facts underlying this appeal need not be repeated as they
have been set forth in Junior’s case.    See Winfrey v. Rogers, 901 F.3d 483, 488–
90 (5th Cir. 2018) (“Winfrey II”).
      This appeal arises from the district court’s opinion disposing of both
siblings’ cases. Megan’s Fourth Amendment claim is nearly identical to that
brought by Junior, with a few factual distinctions.           First, while Junior was
tried and acquitted after sitting in jail for two years, Megan was convicted by
a jury and exonerated by the Texas Court of Criminal Appeals.                 Second,
pertinent to her arrest warrant, deputies collected additional statements about
Megan from teachers, including a statement by a teacher that Megan walked
up to Burr in the school hallway, put her arm in his, and asked him when he
was going to spend some money on her and take her out; a statement that after

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                                 No. 18-20022
a fight with him Megan said she wished someone should “beat the shit” out of
Burr; and another teacher’s statement that Megan had “assaulted her in some
way” and threatened her. Johnson contends these statements add support to
his urging of probable cause to arrest her.        Third, the arrest warrant
mistakenly indicated that the bloodhound drop-trail scent used Junior’s scent,
when it in fact used the scent of Winfrey’s boyfriend Chris Hammond.         But
there was no such error as to the dogs’ alert on Megan’s scent.
      Winfrey was arrested on or about March 15, 2007 and detained pending
trial. She was reindicted for capital murder and conspiracy to commit murder
on December 13, 2007, tried in October 2008, convicted on October 9, 2008, and
sentenced to life imprisonment. On February 27, 2013, the Texas Court of
Criminal Appeals found the evidence legally insufficient to support Winfrey’s
conviction and rendered a judgment of acquittal for each offense.     Winfrey I,
393 S.W.3d at 774.
      Winfrey filed a § 1983 lawsuit, originally alleging that Johnson, Rogers,
San Jacinto County’s then-Sheriff Clark, and Pikett violated her constitutional
rights by using fabricated evidence in connection with the investigation, arrest
and prosecution.     She also pursued state law malicious prosecution claims
against Johnson, Rogers, and Pikett.        After a collection of dismissals,
substitutions, settlements, and summary judgments, including dismissals
under the Texas Tort Claims Act (“TTCA”) or due to immunity, only Johnson
remains as a defendant, and the district court granted summary judgment for
Johnson on all claims. At a hearing about expert reports, the district court
also sua sponte decided against allowing one of Winfrey’s experts,
Dr. Marshall, from testifying.

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                                 No. 18-20022
        Winfrey presents four arguments on appeal.    First, she argues that her
Fourth Amendment claim that Johnson knowingly or recklessly made false
statements in his arrest-warrant affidavit should go to trial.       Second, she
asserts a Fourteenth Amendment claim of malicious prosecution under
procedural due process. Third, she presents a due process claim that Johnson
fabricated Campbell’s trial testimony, violating her right to a fair trial.
Fourth, Winfrey argues that the district court abused its discretion in
excluding her damages expert from testifying at trial.
                        II. STANDARD OF REVIEW
        This court reviews the district court's grant of summary judgment de
novo.      Brewer v. Hayne, 860 F.3d 819, 822 (5th Cir. 2017).         Summary
judgment is appropriate when the movant is entitled to judgment as a matter
of law and there is no genuine dispute of material fact.       Id.   “To survive
summary judgment, the non-movant must supply evidence ‘such that a
reasonable jury could return a verdict for the nonmoving party.’”             Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986)).    The court must draw all reasonable inferences in the non-movant's
favor and view the evidence in the light most favorable to the non-movant.    Id.
        “A qualified immunity defense alters the usual summary judgment
burden of proof . . . Once an official pleads the defense, the burden then shifts
to the plaintiff, who must rebut the defense by establishing a genuine fact issue
as to whether the official’s allegedly wrongful conduct violated clearly
established law.      The plaintiff bears the burden of negating qualified
immunity, but all inferences are drawn in his favor.”      Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010) (quoting Michalik v. Hermann, 422 F.3d 252,

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                                          No. 18-20022
262 (5th Cir.2005)).       Finally, this court reviews the district court’s probable-
cause determination de novo.           United States v. Lopez-Moreno, 420 F.3d 420,
430 (5th Cir. 2005).
                                   III.    DISCUSSION
   1. Fourth Amendment
       Megan argues that Johnson’s conduct violated her Fourth Amendment
right to be free from arrest without a good-faith showing of probable cause and
his duty not to knowingly, intentionally, or recklessly make false statements
in an arrest warrant affidavit.           The substance of her claims is that Johnson’s
arrest-warrant affidavit contained material misstatements and, even if
corrected, lacked probable cause.             Megan relies on this court’s decision in
Winfrey II. 1     Johnson contends that he is entitled to qualified immunity,
Megan never actually pled a Fourth Amendment violation arising from the
arrest warrant, the statute of limitations has run on Megan’s claim, and
independent intermediaries blocked any causal chain running from the arrest
warrant to Megan’s incarceration. 2




       1 Because of the timing of their briefs, the parties cite Winfrey v. Rogers, 882 F.3d 187
(5th Cir. 2018), but that decision was withdrawn and superseded on denial of rehearing by
Winfrey v. Rogers, 901 F.3d 483 (5th Cir. 2018). The opinions are identical in substance and
outcome except for the analysis of qualified immunity.

       2 Megan’s lawsuit is timely. Since the Winfrey II panel concluded that Megan’s
§ 1983 claim more closely resembles the tort of malicious prosecution, focused as it is on the
wrongful institution of legal process, see Winfrey II, 901 F.3d at 492–93, the statute of
limitations on that claim did not begin to run until “the prosecution ends in the plaintiff’s
favor.” Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc). In Megan’s case, that
would be February 27, 2013, the date her conviction was overturned.


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                                      No. 18-20022
       In Winfrey II, the panel analyzed the affidavits for Megan and Senior in
making its legal determinations.          Winfrey II, 901 F.3d at 489 n.1.          It held
that the affidavits contained material misrepresentations and omissions, 3 and
that a “corrected” affidavit would not have satisfied the probable-cause
requirement.       Id. at 496.      Thus, the panel vacated the district court’s
judgment and remanded for trial “on the factual issue of whether Johnson
acted recklessly, knowingly, or intentionally by omitting and misrepresenting
material facts in his affidavit when seeking an arrest warrant for Junior.” Id.
at 488. Because the panel in Winfrey II rejected most of the same objections
Johnson now raises, Johnson is precluded from relitigating these issues.
Johnson offers only two new reasons why this panel is not bound by a panel
decision interpreting the sufficiency of the same warrant, but those, too, are
unavailing.
       First, Johnson contends that additional facts here support probable
cause as to Megan.        He argues that the mistaken drop-trail scent – which
identified the scent as Junior’s when it was in fact that of Megan’s boyfriend –
was not a mistake as to Megan.         But the irrelevance of this misstatement does
not add probable cause against Megan.               Additionally, he argues that the
warrant affidavit included statements from teachers about Megan, her


       3  The court found that “Junior provides evidence that Johnson made false statements
in his affidavit by (1) omitting Campbell’s statements that were contradicted by the physical
evidence; (2) misstating that Pikett’s drop-trail from Burr’s house to the Winfrey house used
Junior’s scent, when the drop-trail actually used Hammond’s scent; and (3) omitting
Campbell’s inconsistencies between his statements, that is, between Campbell’s first
statement—which was related in the affidavit—that said that Megan and Junior helped
Senior to murder Burr and Campbell s inconsistent later statement that Senior’s cousin was
the accomplice.” Winfrey II, 901 F.3d at 494.

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                                 No. 18-20022
relationship with Burr, and a possible propensity for violence. But, as the
district court noted, these statements, eyebrow-raising though they might be,
do not link Megan to murder.       When weighed against the misstatements
detailed in fn. 2 above, these factual distinctions do not detract from the
Winfrey II panel’s conclusion that “a reasonable magistrate would not have
issued a warrant on the basis of this corrected affidavit, because the addition
of the omitted material facts would have dissuaded the judge from issuing the
warrant.” Id. at 496.
        Second, Johnson contends that the independent intermediary doctrine
applies here because, unlike in Winfrey II, and indeed noted by that panel,
there was an additional proceeding before a state judge which Johnson argues
acted as an independent intermediary.      Under the independent-intermediary
doctrine, “’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 the Fourth Amendment violation.”
Jennings v. Patton, 644 F.3d 297, 300–01 (5th Cir. 2011) (quoting Cuadra v.
Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010)).   But this doctrine
only applies “where all the facts are presented to the grand jury, or other
independent intermediary where the malicious motive of the law enforcement
officials does not lead them to withhold any relevant information from the
independent intermediary.”     Cuadra, 626 F.3d at 813.   The panel in Winfrey
II rejected Johnson’s independent-intermediary argument as to the grand jury
because it was “unclear” whether Johnson presented all the facts to the grand
jury.   Winfrey II, 901 F.3d at 497.



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                                  No. 18-20022
      Johnson attempts to distinguish Winfrey II because here, unlike there, a
state judge also determined there was probable cause to arrest Megan.          That
is a fair point because the Winfrey II panel itself recognized the distinction and
distinguished Junior’s case – where “[n]one of these hearings addressed . . .
whether there was probable cause to arrest Junior” – from Megan’s case, where
there was at least one hearing where the judge “determined that there was
probable cause to arrest Megan.”    Id.       But the exception to the independent-
intermediary doctrine applies with equal force because, under Winfrey II, it is
Johnson's burden to prove the omitted material information was presented to
the judge.   He has not done so.     And again, since the panel in Winfrey II
analyzed the very same affidavit, this court is bound by its rejection of the
independent-intermediary doctrine.        After Winfrey II, we have no leeway to
conclude otherwise.
      The only remaining question is the extent of Megan’s potential damages.
Based on Winfrey II, the misstatements in Johnson’s arrest-warrant affidavit
meant it lacked probable cause.      The Supreme Court has made clear that
pretrial seizures, even if they follow legal process, can violate the Fourth
Amendment if the initial seizure occurred without probable cause and nothing
later remedied the lack of probable cause.           See Manuel v. City of Joliet,
137 S. Ct. at 918–19 (“If the complaint is that a form of legal process resulted
in pretrial detention unsupported by probable cause, then the right allegedly
infringed lies in the Fourth Amendment.”).           That is the case here – the
material misstatements and omissions in the arrest-warrant affidavit led to
Winfrey’s unlawful arrest and pretrial detainment.



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                                  No. 18-20022
      But that is not the end of this story, because Megan was reindicted and
tried on evidence obtained after further investigation of her case.    Megan does
not contradict the record evidence that Deputy Johnson’s involvement in her
investigation ceased following the issuance of the arrest warrant in February
2007, at which point the investigation was taken over by the Texas Rangers
and the District Attorney’s investigator, James Kirk.                 The further
investigation included follow-up interviews with Campbell and other
witnesses.   At trial, new and potentially incriminating testimony about an
alibi attempt and evidence tampering were offered by her ex-husband
Hammond and her boyfriend at the time of the killing, Jason King.             See
Winfrey I, 393 S.W.3d at 766. Consequently, at the time of reindictment, the
initial lack of probable cause ceased being the cause of Winfrey’s detention and
damages ceased accruing from Johnson’s Fourth Amendment violation.
      Additionally, although the Texas Court of Criminal Appeals ultimately
reversed Winfrey’s conviction, that court’s painstaking review of the totality of
the circumstantial evidence underlying her conviction undermines Megan’s
argument that the initial lack of probable cause supporting her arrest persisted
through reindictment, trial, and incarceration, and continued to taint the case
against her.    In concluding that the evidence was insufficient to prove
Megan’s guilt beyond a reasonable doubt, the court nowhere suggested that
there was no probable cause to indict or try her for murder.          In fact, the
majority found that the evidence did indeed raise a suspicion of her guilt.   The
court’s analysis further supports the conclusion that the initial lack of probable
cause ceased with Megan’s reindictment and so did the damages.



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                                  No. 18-20022
   2. Fourteenth Amendment
      In addition to her Fourth Amendment claims, Megan presses two claims
under the Fourteenth Amendment: a malicious prosecution claim and a claim
resulting from the Johnson’s alleged use of fabricated evidence at trial.     The
malicious prosecution argument fails because Megan has failed to show that
Johnson violated clearly established law.          The fabrication of evidence
argument fails because no reasonable jury could conclude on the facts before
us that Johnson fabricated evidence.
         a. Malicious Prosecution
      Megan argues that because her liberty was constrained beyond her
initial arrest, and because Texas law provides an insufficient state tort law
remedy, she may press a § 1983 federal malicious prosecution claim under
procedural due process. She acknowledges, however, that the Supreme Court
did not approve a substantive due process claim arising from malicious
prosecution, Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807 (1994), and no
subsequent decision of that Court or this court has rendered such a claim
cognizable, much less “clearly established.”     See, e.g., Castellano v. Fragozo,
352 F.3d 939 (5th Cir. 2003) (en banc).     Even if this court accepted Megan’s
invitation to break new legal ground, which we do not, Johnson would be
entitled to qualified immunity.   The district court’s dismissal of the malicious
prosecution claim was correct.
         b. Fabrication of Evidence
      Megan’s second Fourteenth Amendment claim concerns Johnson’s
interaction with jailhouse informant David Campbell.        Megan contends that
a reasonable jury could decide Johnson fabricated Campbell’s testimony

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                                     No. 18-20022
because Campbell’s pre-arrest interviews yielded conflicting facts at odds with
the forensic evidence; Campbell himself believed that Johnson was trying to
“stage” something against Megan; and Campbell testified to his suspicions at
trial.    These facts do not support a claim of fabricated evidence.
         All of the Supreme Court and other cases on which Megan relies deal
with manufactured evidence or perjured witnesses.             In Mooney, for example,
the court found a due process violation where there was a “deliberate deception
of court and jury by the presentation of testimony known to be perjured” by
prosecutors.     Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 342 (1935);
see also Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177 (1942).                 Brown v.
Mississippi, 297 U.S. 278, 286, 56 S. Ct. 461, 465 (1936) involved the coercion
of confessions by use of physical violence.        Napue v. People of State of Ill.,
360 U.S. 264, 270, 79 S. Ct. 1173, 1177 (1959) involved the use of false
testimony by a witness to curry favor with a prosecutor who might provide
favors to the witness.       In Miller v. Pate, 386 U.S. 1, 6, 87 S. Ct. 785, 788
(1967), “[t]he prosecution deliberately misrepresented the truth” by “consistent
and repeated misrepresentation” that shorts stained with paint were actually
stained with blood.       The lone precedential Fifth Circuit case Megan cites,
Boyd v. Driver, 579 F.3d 515 (5th Cir. 2009) (per curiam), involved the claim
that prison employees gave perjured testimony at a criminal trial and
destroyed and tampered with video evidence.                These cases all involve a
motivated person who undertook to create or destroy evidence presented at
trial in support of convictions.
         The facts of this case are quite different.    Johnson took statements from
Campbell on two occasions before he swore out the warrant affidavit.             Megan

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                                 No. 18-20022
has no basis for asserting that Johnson had any involvement in Campbell’s
testimony at trial; his connection to the case terminated with her arrest and
Johnson did not even testify at her trial.       The prosecutors alone were
responsible for Campbell’s trial testimony.      Moreover, Campbell testified
according to his own free will, never admitted any falsehoods in his trial
testimony, and indeed truthfully related his own misgivings about any
improper influence Johnson may have been asserting.        Thus, Megan offers no
evidence that Johnson inappropriately influenced Campbell’s testimony.
According to Megan, the most damning piece of evidence is Campbell’s
suggestion that Johnson was “trying to make a story,” but this opinion
criticizes Johnson’s conduct prior to the arrest, in Johnson’s first interview
with Campbell, and there is no indication that Johnson influenced Campbell’s
later testimony at trial. Additionally, the mere fact that Campbell presented
one of the two versions that he had previously related regarding Senior’s story
– that Megan and Junior, not the cousins, were present with Senior in the
house when Burr was murdered – would not allow a reasonable jury to
conclude that Johnson fabricated Campbell’s testimony.         There is thus no
genuine issue of material fact supporting Johnson’s fabrication of evidence.
   3. Exclusion of Damages Expert
      Winfrey's final claim is that the district court abused its discretion by
sua sponte excluding her damages expert in violation of the Federal Rules of
Evidence.   Johnson asserts that because none of the orders from which Megan
has appealed involved the expert, and since this case did not go to trial, the
district court’s statements were merely an “interlocutory statement of opinion.”
This court is inclined to agree.           Megan’s arguments are largely a

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                                  No. 18-20022
disagreement with the district court about how to apply federal evidentiary
rules.    Moreover, the district court has wide discretion in such cases:   “with
respect to expert testimony offered in the summary judgment context, the trial
court has broad discretion to rule on the admissibility of the expert’s evidence
and its ruling must be sustained unless manifestly erroneous.” Hathaway v.
Bazany, 507 F.3d 312, 317 (5th Cir. 2007) (citation and internal quotation
marks omitted). In any event, there is no formal order to review, and based
on this opinion, any prognostication by this court on expert evidence that
Megan may offer in the future is premature.
                                 CONCLUSION
         The district court’s judgment is REVERSED as to the Fourth
Amendment claim, AFFIRMED as to the Fourteenth Amendment claims, and
the case is REMANDED for further proceedings consistent herewith.




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