     Case: 18-40491   Document: 00515520014     Page: 1   Date Filed: 08/07/2020




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

                                                                 FILED
                                                              August 7, 2020
                                 No. 18-40491
                                                              Lyle W. Cayce
                                                                   Clerk
COURTNEY MORGAN,

             Plaintiff – Appellee,

v.

MARY CHAPMAN; JOHN KOPACZ,

             Defendants – Appellants.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before ELROD, WILLETT, and DUNCAN, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      This is another in a long line of cases involving the Texas Medical Board
serving instanter subpoenas on medical clinics.     We have said that those
subpoenas—which do not allow for court review and demand immediate
compliance—are unconstitutional.
      In this case, a team of law enforcement officers and Medical Board
investigators locked down a clinic, rifled through private patient records, and
seized confidential files. Courtney Morgan alleges that Mary Chapman, a
Medical Board investigator, used those illegally-obtained files to fabricate
evidence and get him indicted on trumped-up charges of running a pill mill. A
    Case: 18-40491     Document: 00515520014    Page: 2   Date Filed: 08/07/2020



                                 No. 18-40491
state district court largely agreed with that version of the facts, suppressing
the illegally obtained evidence, and dismissing the indictment against Morgan.
Now, Morgan brings a civil suit against two government agents for violating
his constitutional rights.
      In this case, Morgan contends that Chapman and John Kopacz used
instanter subpoenas to illegally search his clinic (which did not dispense pain
medication), resulting in the illegal seizure of property and patient records.
This is not the first time this court has addressed these subpoenas. In Zadeh
v. Robinson, the Board executed an unconstitutional instanter subpoena on an
internal medicine doctor. 928 F.3d 457, 462 (5th Cir. 2019), cert denied 2020
WL 3146691 (June 15, 2020). And in Cotropia v. Chapman, another doctor
alleged that Chapman showed up with an unconstitutional instanter subpoena
and, over the receptionist’s objection, removed and copied sensitive documents
from the office’s front desk. 721 Fed. App’x 354, 356 (5th Cir. 2018).
      The district court denied qualified immunity to both defendants and
rejected Chapman’s assertion of absolute prosecutorial immunity. It held that
Morgan stated a claim for the purported constitutional tort of malicious
prosecution against Kopacz and Chapman, and stated a claim for
“constitutional” abuse of process against Chapman.        We reverse because
malicious prosecution and abuse of process are not viable theories of
constitutional injury. But we remand for the district court to decide whether
Morgan has waived his Fourth Amendment claims and whether he should be
allowed to amend his complaint a third time to add a due process claim.




                                       2
     Case: 18-40491      Document: 00515520014         Page: 3    Date Filed: 08/07/2020



                                      No. 18-40491
                                             I.
        Dr. Courtney Morgan is a licensed physician in Victoria, TX.1 Since
2007, he has owned and operated two medical clinics: Hop Medical Services
and Drive Thru Doc. Hop Medical focuses on general family medicine, while
Drive Thru focuses only on simple medical issues that can be treated in thirty
days.       Such ailments include rashes, toothaches, sexually transmitted
diseases, and strep throat. Drive Thru provides these services at a discounted
rate in order to help uninsured patients.
        Morgan states that he has never stored, retained, or dispensed any
controlled substance at either clinic. But on July 18, 2013, law enforcement
descended to search for evidence of illegal controlled-substance related
activity. Mary Chapman, an investigator for the Texas Medical Board, and
John Kopacz, an agent with the Texas Department of Public Safety, along with
two additional Medical Board agents, two Drug Enforcement Administration
agents, and a local Victoria, TX, police officer, served administrative instanter
subpoenas on Morgan, searched his clinics, and seized medical files. Chapman
and Kopacz confined Morgan in an examination room, prevented his employees
from communicating with each other, and collected all of their cell phones.
Chapman and Kopacz seized confidential documents, including all patient
medical records for March 2013, as well as additional documents that were not
listed in the subpoenas.
        Things would get worse for Morgan. As he tells it, Chapman fabricated
evidence to encourage a baseless criminal prosecution. In Texas, a clinic that
prescribes four specific types of controlled substances to greater than half of its
patients on a monthly basis must obtain a pain management clinic


        All facts are drawn from Morgan’s Second Amended Complaint, which, at the motion
        1

to dismiss stage, we take as true. See Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 311 (5th
Cir. 2019).
                                             3
     Case: 18-40491      Document: 00515520014     Page: 4   Date Filed: 08/07/2020



                                    No. 18-40491
certification. Chapman made a report that included all patients who received
prescriptions for any controlled substance, knowing that this was deceptive.
Based on that fabricated report, Kopacz suggested to the district attorney that
Morgan be charged with operating an unlicensed pain management clinic. A
grand jury indicted Morgan based solely on the fabricated report, and he was
arrested for the third-degree felony of non-certification of a pain management
clinic.
                                         A.
          The state court made quick work of the prosecution. On September 3,
2015, Chapman testified on Morgan’s motion to suppress. This testimony,
Morgan says, revealed startling new information: (1) Chapman and Kopacz
coordinated extensively with each other prior to serving the TMB
administrative instanter subpoenas; (2) Chapman’s fabricated report was the
sole evidence used to support Morgan’s indictment; and (3) Chapman and
Kopacz worked together to encourage the prosecution that rested on the
fabricated report.
          The state district court held a suppression hearing, where it heard
testimony from Chapman and Kopacz. The court found that the Medical Board
and DPS communicated for the purpose of charging Morgan with a crime, that
there was “an unusual show of force by law enforcement to merely serve
subpoena(s),” and that Chapman’s evasive testimony was “less than credible.”
The court granted Morgan’s motion to suppress, holding that Chapman and
Kopacz conducted a warrantless search and seizure at Morgan’s clinics.
          The court applied New York v. Burger, which held that an administrative
subpoena is only reasonable if there is a substantial government interest
implicating the regulatory scheme, the search is necessary to further that
scheme, and the subpoena provides an adequate substitute for a warrant. 482
U.S. 691, 702–03 (1987). There was a substantial interest in the regulatory
                                         4
    Case: 18-40491     Document: 00515520014    Page: 5   Date Filed: 08/07/2020



                                 No. 18-40491
scheme, the court concluded, but the search violated the Fourth Amendment
because “the intent behind the search . . . was to pursue criminal charges.” The
subpoena did not provide an adequate substitute for a warrant, the court
explained, because it did not provide Morgan an opportunity for pre-
enforcement judicial review, and that neither the consent nor exigent
circumstances exceptions to the warrant requirement applied.          The court
granted the motion to suppress and dismissed the indictment on January 20,
2016.
        On July 11, 2016, Morgan learned that Chapman deliberately inflated
the numbers in her report in order to encourage his prosecution. He also
asserts that Chapman deliberately excluded evidence that would show his
exemption from pain-management certification requirements.
                                       B.
        Morgan filed this lawsuit on January 20, 2017 in the Southern District
of Texas.    His first complaint alleged claims under 42 U.S.C. § 1983—for
malicious prosecution and violations of the Fourth Amendment—as well as a
state-law malicious-prosecution claim and violation of Article I § 9 of the Texas
Constitution.
        After the defendants filed motions to dismiss, Morgan amended his
complaint.    This new complaint dropped most of his claims, leaving only
individual-capacity claims against Kopacz and Chapman for malicious
prosecution under 42 U.S.C. § 1983. The First Amended Complaint added a
Fourth Amendment claim.        Chapman and Kopacz again responded with
motions to dismiss.     At a subsequent hearing, the district court granted
Morgan leave to file a second amended complaint, mooting the previous filings.
        The Second Amended Complaint is before us today. It alleges that
Chapman “compiled an investigative report from the seized medical records
obtained during the warrantless search,” which used “deliberately inaccurate
                                       5
    Case: 18-40491    Document: 00515520014     Page: 6   Date Filed: 08/07/2020



                                 No. 18-40491
calculations [to] falsely inflate[] the percentage of prescriptions issued by
Morgan”; that Kopacz “received the entire investigative file from the [Texas
Medical Board],” and that the report “was the sole evidence relied upon in
Kopacz’s decision to cause the criminal prosecution of Morgan through the
Victoria County District Attorney’s Office.”
      The Second Amended Complaint asserts three claims, all brought under
42 U.S.C. § 1983: Count I, for malicious prosecution against Kopacz; Count II
for malicious prosecution against Chapman; and Count III, for abuse of process
against Chapman.
      Kopacz and Chapman each moved to dismiss. Kopacz’s motion raised
the defense of qualified immunity and argued that there is no constitutional
right to be free from malicious prosecution. It also noted that any freestanding
Fourth Amendment claim alleged in the complaint would be time-barred.
Chapman’s motion to dismiss asserted defenses of absolute immunity,
qualified immunity, and failure to state a claim. The motion also asserted that
the abuse-of-process claim was time-barred.
      The district court denied both motions. The court briefly summarized
the alleged facts, described the claims and defenses, and stated the Rule
12(b)(6) standard. Then, the district court copied the state court’s suppression
order verbatim, entailing four-and-a-half of the order’s nine pages. The district
court concluded that defendants were not entitled to qualified immunity
because the defendants’ “conduct presumably violated clearly established state
and federal law.”
                                       II.
      Because the district court’s denial of the motion to dismiss included a
rejection of qualified immunity, it is immediately appealable.         Backe v.
LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). We therefore have jurisdiction
under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We
                                       6
    Case: 18-40491    Document: 00515520014     Page: 7   Date Filed: 08/07/2020



                                 No. 18-40491
review the denial of a motion to dismiss de novo. Lincoln v. Barnes, 855 F.3d
297, 301 (5th Cir. 2017).
                                      III.
      We begin with Chapman’s assertion of absolute prosecutorial immunity.
      “A prosecutor is absolutely immune when she acts in her role as an
advocate for the state by initiating and pursuing prosecution.” Beck v. Tex.
State Bd. of Dental Examiners, 204 F.3d 629, 637 (5th Cir. 2000) (citing Burns
v. Reed, 500 U.S. 478, 491 (1991)). Absolute immunity shields prosecutors even
when they initiate prosecution maliciously, wantonly, or negligently. Rykers
v. Alford, 832 F.2d 895, 897 (5th Cir. 1987).
      Chapman, of course, was not a prosecutor—she was a Medical Board
investigator. But we approach absolute immunity functionally, looking to the
nature of the acts and not the title of the actor. See Beck, 204 F.3d at 634. The
question is whether the person was performing an investigative function.
Singleton v. Cannizzaro, 956 F.3d 773, 780 (5th Cir. 2020). Where a person
acts as a detective, “searching for the clues and corroboration that might give
him probable cause to recommend that a suspect be arrested,” he is not entitled
to prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
But where a person acts as an advocate, “evaluating evidence and interviewing
witnesses as he prepares for trial,” then the immunity does attach. See id.
      Actions performed before probable cause has been established are
typically investigative; those after, prosecutorial. See Cousin v. Small, 325
F.3d 627, 633 (5th Cir. 2003). This is because “[a] prosecutor neither is, nor
should consider himself to be, an advocate before he has probable cause to have
anyone arrested.” Buckley, 509 U.S. at 274; see also id. at 274 n.5 (“Of course,
a determination of probable cause does not guarantee a prosecutor absolute
immunity from liability for all actions taken afterwards.”). .


                                       7
    Case: 18-40491    Document: 00515520014     Page: 8   Date Filed: 08/07/2020



                                 No. 18-40491
      Here, Chapman acted as an investigator both when she searched
Morgan’s office and when she allegedly fabricated a report based on that
search. Searching a crime scene for evidence of wrongdoing is perhaps the
quintessential investigative function. See id. (observing that a prosecutor is
not entitled to immunity when he “plans and executes a raid on a suspected
weapons cache”). Thus, Chapman is not entitled to absolute immunity for the
search of Morgan’s clinic and the seizures of his records. Nor is she entitled to
absolute immunity for allegedly compiling an inaccurate report by knowingly
misrepresenting the proportion of Morgan’s patients who received designated
prescriptions. That report was the sole piece of evidence that established
probable cause for Morgan’s indictment. Absolute immunity does not apply
where an “official’s function was to obtain evidence prior to indictment.” See
Hoog-Watson v. Guadalupe County, 591 F.3d 431, 438 (5th Cir. 2009) (quoting
Burge v. Par. of St. Tammany, 187 F.3d 452, 478 (5th Cir. 1999) (alteration
omitted)).
      Because Chapman “fulfilled the fact-finding role generally filled by law
enforcement,” she is entitled only to “the level of immunity available to law
enforcement—qualified immunity.” Wooten v. Roach, 964 F.3d 395, 408 (5th
Cir. 2020).
                                      IV.
      We turn next to the qualified immunity inquiry.         Morgan’s Second
Amended Complaint alleges counts of malicious prosecution against
defendants Kopacz and Chapman, purportedly cognizable under 42 U.S.C.
§ 1983, and a claim of abuse of process against Chapman that he also brings
under 42 U.S.C. § 1983. We agree with defendants that malicious prosecution
and abuse of process are torts, not constitutional violations.        The facts
underlying these tort allegations may constitute unconstitutional searches,
seizures, or violations of due process. But that does not convert the common
                                       8
    Case: 18-40491    Document: 00515520014      Page: 9   Date Filed: 08/07/2020



                                 No. 18-40491
law tort into a violation of the Constitution.       Accordingly, we hold that
defendants are entitled to qualified immunity against those claims.
      The Fourth Amendment of the United States Constitution promises that
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated[.]”
U.S. Const. amend. IV. The Fourteenth Amendment ensures that the same
protection runs against state officials. Dunaway v. New York, 442 U.S. 200,
207 (1979).
      Morgan brings his claims under 42 U.S.C. § 1983, which provides a cause
of action against persons who, under color of state law, deprive him “of any
rights, privileges, or immunities secured by the Constitution.” To defeat the
defense of qualified immunity at the motion to dismiss stage, Morgan must
plausibly allege a violation of a constitutional right that was clearly
established at the time of the purported violation. Longoria Next Friend of
M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 264 (5th Cir. 2019).
                                       A.
      We begin with Morgan’s claims for “malicious prosecution . . . cognizable
under 42 U.S.C. § 1983” against Chapman and Kopacz. Under the common
law of Texas, malicious prosecution is “a cause of action for those subjected
unjustifiably to criminal proceedings.”     Kroger Texas Ltd. v. Suberu, 216
S.W.3d 788, 792 (Tex. 2006). To state a claim for that state tort, a plaintiff
must allege
      (1) a criminal prosecution was commenced against [him]; (2) [the
      defendant] initiated or procured that prosecution; (3) the prosecution
      terminated in [the plaintiff’s] favor; (4) [he] was innocent of the charges;
      (5) [the defendant] lacked probable cause to initiate the prosecution; (6)
      [the defendant] acted with malice; and (7) [the plaintiff] suffered
      damages.


                                        9
    Case: 18-40491       Document: 00515520014          Page: 10     Date Filed: 08/07/2020



                                       No. 18-40491
Id. at 792 n.3. This circuit used to recognize an analogous constitutional right
to be free from malicious prosecution. See Gordy v. Burns, 294 F.3d 722 (5th
Cir. 2002). Today, it does not.2
       In Castellano v. Fragozo, an en banc majority of this court extinguished
the constitutional malicious-prosecution theory. 352 F.3d 939, 954 (5th Cir.
2003) (en banc). Castellano explained that claims under § 1983 are only “for
violation[s] of rights locatable in constitutional text.” Id. at 953–54. This
makes sense: the people have a constitutional right to be free from
unreasonable searches and unreasonable seizures. In so far as the defendant’s
bad actions (that happen to correspond to the tort of malicious prosecution)
result in an unreasonable search or seizure, those claims may be asserted
under § 1983 as violations of the Fourth Amendment. But that makes them
Fourth Amendment claims cognizable under § 1983, not malicious prosecution
claims.
       There is a constitutional right to be free of unreasonable searches and
seizures. There is no constitutional right to be free from malicious prosecution.
Therefore, qualified immunity bars Morgan’s § 1983 malicious prosecution
claims against Chapman and Kopacz.
                                             B.
       We turn to Morgan’s § 1983 claim for abuse of process against Chapman.
The essential elements of the state law tort of abuse of process are “first, an
ulterior purpose, and second, a wilful act in the use of the process not proper
in the regular conduct of the proceeding.” Brown v. Edwards, 721 F.2d 1442,
1455 (5th Cir. 1984) (emphasis omitted) (quoting Prosser, The Law of Torts
841 (4th ed. 1971)); cf. Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex. App.—


       2 When this court did recognize such a claim, the rule was “that the elements of the
state-law tort of malicious prosecution and the elements of the constitutional tort of ‘Fourth
Amendment malicious prosecution’ are coextensive.” See Gordy, 294 F.3d at 725.
                                             10
    Case: 18-40491        Document: 00515520014          Page: 11      Date Filed: 08/07/2020



                                        No. 18-40491
Houston [14th Dist.] 2001, no pet.) (identifying improper use of process,
ulterior motive, and damage to plaintiff as necessary elements).
       This court has never identified the elements of the constitutional tort of
abuse of process.3 It is doubtful that such a constitutional tort has ever existed
in this circuit. Forty years ago, we suggested that “misuse of legal procedure
may be so egregious as to constitute a violation of Section 1983 . . . if the tort-
feasor, under color of state law, subjects the tort-victim to a deprivation of
Constitutional dimension.”          Beker Phosphate Corp. v. Muirhead, 581 F.2d
1187, 1189 (5th Cir. 1978); see also id. at 1188 n.1 (defining “[m]isuse of legal
procedure” as “a general term describing at least three separate but related
common law torts which protect the interest in freedom from unjustified
litigation: (1) malicious prosecution; (2) wrongful civil proceedings; (3) abuse of
process” (internal quotation omitted)).              But Beker also emphasized that
“conduct which merely engenders common law tort liability, without infringing
on Constitutionally protected interests, is not a sufficient basis to support a
cause of action under Section 1983.” Id. (emphasis added). In other words, the
conduct that can state a claim for the tort of abuse of process may also state a
claim under § 1983, if that conduct infringes a constitutional right.
       In the forty years since Beker, this court has never identified a
“constitutional” abuse of process, and we have questioned the viability of the
abuse-of-process-as-constitutional-tort theory. Cf. Brummett v. Camble, 946
F.2d 1178, 1181 n.2 (5th Cir. 1991) (“Not long ago, however, our court had held
that torts of abuse of process . . . were not encompassed within § 1983.”).




       3  The court looked to state tort law as an analogy, concluding that if the constitutional
tort of abuse of process exists, it must consist of the state law tort plus something more, which
this court suggested would be an act that resulted in “a deprivation of Constitutional
dimension.” See Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir. 1978).
                                               11
    Case: 18-40491       Document: 00515520014          Page: 12     Date Filed: 08/07/2020



                                       No. 18-40491
       Morgan suggests that Brown established the constitutional right to be
free from abuse of process. It did not. Brown involved a man who had been
arrested by a police officer who, under state law, received ten dollars for each
charge that resulted in conviction. Id. at 1444. The plaintiff “analogize[d] his
claim to one based on abuse of process.” Id. at 1450. The court rejected the
theory that abuse of process by a government official is necessarily a denial of
due process. See id. at 1455 (distinguishing Jennings v. Shuman, 567 F.2d
1213, 1220 (3d Cir.1977)).4 Instead, the court’s reasoning aligned with the rule
of Beker: if the constitutional tort of abuse of process exists, it must involve the
state tort plus a deprivation of a constitutionally protected interest. Cf. Beker,
581 F.2d at 1189. Thus, a constitutional violation is still the sine qua non of
the abuse of process theory.
       The conduct in Brown did not even satisfy the state tort of abuse of
process, much less “infring[e] on a constitutionally protected interest.” Cf.
Beker, 581 F.2d at 1189.5 Brown did not create a constitutional right to be free
from abuse of process. And that is why the only time we have cited Brown in
a putative constitutional-abuse-of-process case was to dispel the idea that it
created such a right. See Whatley v. Philo, 817 F.2d 19, 22 (5th Cir. 1987)
(citing Brown, 721 F.2d at 1454).



       4  Some circuits recognize abuse of process as a violation of procedural due process.
See, e.g., Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); Jennings, 567 F.2d at 1220. Other
circuits are more circumspect. See, e.g., Hart v. Mannina, 798 F.3d 578, 595 (7th Cir. 2015)
(“[A]ssuming for purposes of argument that a claim for abuse of process might be cognizable
under § 1983” as a violation of the Fourth or Fourteenth Amendment.); Fagnan v. City of
Lino Lakes, 745 F.3d 318, 324 n.5 (8th Cir. 2014) (“To the extent that Fagnan preserved for
appeal his abuse of process claim, we decline to decide whether defendants may be liable for
abuse of process pursuant to 42 U.S.C. § 1983.”).

       5 Morgan maintains that Brown “outlined the elements for a federal claim of abuse of
process.” Not so. Brown provided the elements for common law abuse of process, which it
analogized to the plaintiff’s facts. See id. at 1455 (quoting Prosser, The Law of Torts 838–41
(4th ed. 1971)).
                                             12
   Case: 18-40491     Document: 00515520014      Page: 13   Date Filed: 08/07/2020



                                  No. 18-40491
      Our en banc decision in Castellano sheds light on the best way to
understand Beker and Brown. Castellano clarifies that the same conduct may
constitute both a state tort (which is not cognizable under § 1983) and a
constitutional injury (which is). Section 1983 claims “are for violation[s] of
rights locatable in constitutional text.”     352 F.3d. at 953–54.      Thus, in
Castellano the conduct did not state a claim for malicious prosecution (because
such a claim was not locatable in the constitutional text), see id., but that same
conduct did state a claim for a violation of the right to due process and the
right to be free from unreasonable seizure, see id. at 955. Accordingly, it
reversed the district court judgment and remanded for a new trial.
      We recognize that previous decisions of this court may have left open the
possibility that the freedom-from-abuse-of-process right lay hidden in the
constitutional ether. Cf. Whatley, 817 F.2d at 22 (“At most, Beker supports the
proposition that, to be actionable under § 1983, the misuse of legal process
must be ‘egregious.’” (quoting Beker, 581 F.2d at 1189)). We close the door on
that possibility. Putting together Beker, Brown, and Castellano, we observe
that facts that constitute the state tort of abuse of process can also constitute
an unreasonable search, unreasonable seizure, or violation of another right
“locatable in constitutional text.”   Id. at 954.   Such claims, rooted in the
violation of constitutional rights, are actionable under § 1983. But those claims
“are not claims for [abuse of process] and labeling them as such only invites
confusion.” See id.
      Because there is no constitutional right to be free from abuse of process,
the district court erred by failing to grant defendants qualified immunity on
that claim.
                                       V.
      To save his complaint from dismissal, Morgan argues that his factual
allegations state a claim for something, even if not malicious prosecution or
                                       13
    Case: 18-40491       Document: 00515520014          Page: 14     Date Filed: 08/07/2020



                                       No. 18-40491
abuse of process.       In his words, “[w]hether this claim is called malicious
prosecution or a violation of the Fourth Amendment or a violation of the
Fourteenth Amendment . . . does not matter.” But it does matter: while
Morgan was silent about the possibility of a due process claim in the district
court, defendants contend that he affirmatively waived a possible freestanding
Fourth Amendment claim.
       Morgan is correct that under our system of notice pleading, a complaint
need not specify legal theories. See McManus v. Fleetwood Enters., 320 F.3d
545, 551 (5th Cir. 2003). But that is not the only principle at play here. A
defendant is also entitled to know the claims against him so that he can
prepare a response. Putting those principles together, we consider whether to
remand for the district court to determine whether Morgan may amend his
complaint.
       A district court “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But leave may be denied when it would
cause undue delay, be the result of bad faith, represent the repeated failure to
cure previous amendments, create undue prejudice, or be futile. Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004). Accordingly, we consider whether it
would be futile for Morgan to add a due process, unreasonable search, or
unreasonable seizure claim.6 If adding these claims would be futile on the
merits, we will not remand for efficiency’s sake. After all, we are in as good of
a position as the district court to consider this legal question; if these added-


       6  We do not discuss the other factors, which the district court is better positioned to
address. Cf. Rutledge v. United States, 161 F.3d 7 (5th Cir. 1998 (unpublished table op.)
(declining to remand because “leave to amend would prove futile”). Of course, allowing a
plaintiff the opportunity to seek leave to amend on remand is only proper in appropriate
circumstances. See, e.g., McLin v. Ard, 611 F. App’x 806, 810 n.4 (5th Cir. 2015) (concluding
that plaintiff should be given “opportunity to cure his complaint on remand” because district
court mistakenly “found the complaint sufficient on its face to state a plausible claim for
relief”).
                                              14
   Case: 18-40491    Document: 00515520014     Page: 15   Date Filed: 08/07/2020



                                No. 18-40491
by-amendment claims would not succeed on the merits, why should we
remand? But, if these claims might have merit if added-on-amendment, we
will remand to the district court for a full determination of whether leave to
amend is proper.
                                     A.
      A freestanding Fourth Amendment unreasonable search claim under
these facts would look familiar. This court has recently decided a number of
cases involving the Texas Medical Board’s unconstitutional use of instanter
subpoenas. In the unpublished Cotropia v. Chapman, we denied qualified
immunity where Mary Chapman (the same investigator named in this case)
searched and seized patient medical records over a physician’s objection. See
721 Fed. App’x 354, 357, 361 (5th Cir. 2018). We held that the plaintiff
plausibly alleged that Chapman “violated the clearly established right to an
opportunity to obtain precompliance review of an administrative subpoena
before a neutral decisionmaker.” Id. at 357.
      In a more recent published decision, we held that a TMB investigator
violated a physician’s Fourth Amendment rights by executing an instanter
subpoena without precompliance review, even though we concluded that the
investigator was entitled to qualified immunity. See Zadeh v. Robinson, 928
F.3d 457, 464 (5th Cir. 2019). The Zadeh defendants argued that the instanter
subpoenas complied with the Fourth Amendment because they fell into the
“closely regulated industry” exception to the general rule that administrative
subpoenas require precompliance review. Id. at 464. We held that the medical
industry as a whole is not a closely regulated industry. Id. at 466. But we
assumed without deciding that pain management clinics were closely
regulated and that the plaintiff was operating such a clinic. Id. We then held
that the statutory scheme of the TMB’s inspection authority lacked sufficient


                                     15
    Case: 18-40491    Document: 00515520014     Page: 16    Date Filed: 08/07/2020



                                 No. 18-40491
limits on the discretion of the Board and was therefore not a proper substitute
for a warrant. Id. at 468.
      The Zadeh search violated the Fourth Amendment even if pain
management clinics were a closely regulated industry, we explained.
Nonetheless, we concluded that the law was not clearly established at the time,
because    “the   defendants   reasonably    could   have   believed   that   the
administrative scheme here provided a constitutionally adequate substitute
for a warrant.” Id. at 470.
      The Zadeh court also concluded, under an alternative theory, that the
searches at issue were not pretextual. Id. at 472. A search is not really
administrative if it is used solely to find evidence of criminal wrongdoing. See
Burger, 482 U.S. at 724 (“In the law of administrative searches, one principle
emerges with unusual clarity and unanimous acceptance: the government may
not use an administrative inspection scheme to search for criminal
violations.”).
      Neither the closely regulated industry holding nor the pretextual search
analysis would stop Morgan’s claims.        In Zadeh, the defendants received
qualified immunity because the law of instanter searches of closely regulated
pain management clinics was unclear. 928 F.3d at 466. Here, accepting the
plaintiff’s allegations as true, it is uncontroverted that Morgan was not
operating a pain management clinic. Indeed, he alleges that he “has never
obtained, stored, maintained or dispensed any controlled substances of any
kind from either medical practice.” Because Morgan was not operating a pain
management clinic, the qualified immunity available to the defendants in
Zadeh would be inapplicable here.
      The pretext analysis in this case also departs from Zadeh. In Zadeh, we
concluded that the searches were not pretext for criminal investigation because
there was no evidence that the “investigation resulted in a criminal
                                      16
   Case: 18-40491     Document: 00515520014      Page: 17   Date Filed: 08/07/2020



                                  No. 18-40491
prosecution” and because the TMB took “subsequent administrative action
against” the physician. Zadeh, 928 F.3d at 471–72. Therefore, we reasoned,
the search was not pretextual because it “was not performed ‘solely to uncover
evidence of criminality.’” Id. at 472 (quoting Burger, 482 U.S. at 698). Here,
neither of those two facts are present. The search did result in a criminal
prosecution, and TMB did not take any subsequent administrative action
against Morgan.
      Based on this case law, we cannot say it would be futile for Morgan to
add a Fourth Amendment claim for an unreasonable search.
                                       B.
      A Fourth Amendment unreasonable seizure claim arising from Morgan’s
arrest on false charges would also be familiar. We recently concluded that an
unlawful seizure claim was cognizable and qualified immunity did not apply
where a plaintiff “was wrongfully arrested due to the knowing or reckless
misstatements and omissions” in a law enforcement officer’s affidavits. See
Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018), cert denied sub nom.
Johnson v. Winfrey, 139 S. Ct. 1549 (2019). In that case, the plaintiff framed
his claim as a “Fourth Amendment federal malicious-prosecution claim.” Id.
at 491.   Relying on Castellano, we rejected that theory.         See id. (citing
Castellano, 352 F.3d at 945, 953). Nonetheless, we explained that where facts
that follow the state tort of malicious prosecution also constitute an illegal
seizure, a “claim fits the Fourth Amendment, and the Fourth Amendment fits
the plaintiff’s claim, as hand in glove.” Id. at 492 (quoting Manuel v. City of
Joliet, 137 S. Ct. 911, 917 (2017)) (alteration omitted).
      Winfrey continued to analyze the statute of limitations issue, which is
outside of the scope of this appeal. The court explained that the accrual date
of a § 1983 action tracks the state law of torts. Winfrey, 901 F.3d at 492. The
issue was whether the plaintiff’s claim was more analogous to the tort of false
                                       17
    Case: 18-40491       Document: 00515520014         Page: 18     Date Filed: 08/07/2020



                                      No. 18-40491
imprisonment (which accrues at the time the plaintiff is detained) or to
malicious prosecution (which accrues when the prosecution ends). Id. We
concluded that the claim was closer to malicious prosecution—“an unlawful
arrest pursuant to a warrant[,] instead of a detention with no legal process.”
Id. at 493. We recognized this unconstitutional seizure claim even though we
rejected the plaintiff’s “constitutional” malicious-prosecution theory.
       Accordingly, a Fourth Amendment unreasonable seizure claim would not
be futile.
                                             C.
       We also must address whether it would be futile to remand to allow the
district court to consider a due process claim. This court recently announced
that there is a “due process right not to have police deliberately fabricate
evidence and use it to frame and bring false charges against a person.” Cole v.
Carson, 802 F.3d 752, 771 (5th Cir. 2015) (“Cole I”), cert. granted, judgment
vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (2016) and opinion reinstated
in part, 935 F.3d 444 (5th Cir. 2018) (en banc). And, although Cole had a
peripatetic procedural history, that holding is binding Fifth Circuit precedent
today.7
       Given the on-point Cole holding, the due process claim would similarly
not represent a futile amendment. Remand to allow the district court to
consider that claim would not be futile.
                                            VI.




       7 Cole I was vacated by the Supreme Court in Hunter v. Cole, 137 S. Ct. 497 (2016).
On remand from the Supreme Court, the panel in Cole II reinstated the portion of the opinion
including its due process fabricated evidence theory. See Cole v. Carson, 905 F.3d 334, 347
(5th Cir. 2018) (“Cole II”), reh’g en banc granted, 915 F.3d 378 (5th Cir. 2019), on reh’g en
banc, 935 F.3d 444 (5th Cir. 2019), as revised (Aug. 21, 2019). Cole II was vacated when this
court granted rehearing en banc, 915 F.3d 378 (5th Cir. 2019), but the en banc court held “as
in Cole I with respect to the Coles’ three fabrication-of-evidence claims.”
                                             18
    Case: 18-40491        Document: 00515520014          Page: 19      Date Filed: 08/07/2020



                                        No. 18-40491
       It would not be futile on the merits for Morgan to pursue an unreasonable
search, unreasonable seizure, or due process claim. But the decision as to
whether Morgan should be allowed to amend is not ours to make. It is unclear
what legal theories the plaintiff presented in the district court. And his claims
seem to have transformed on appeal. We remand for the district court to
consider amendment and, if necessary, issues of waiver and forfeiture.8
                                            ****
       To sum up, Chapman is not entitled to absolute immunity. Under this
circuit’s precedents, there is no constitutional right to be free from abuse of
process or malicious prosecution. As to search and seizure and due process, we
remand to the district court to determine whether Morgan may amend his
complaint a third time. The judgment of the district court is VACATED and
the case is REMANDED for further proceedings consistent with this opinion.




       8  In the district court, Morgan did not label his claim a due process claim. The three
references to the Fourteenth Amendment in the Second Amended Complaint are in
conjunction with the Fourth Amendment, clearly contemplating an incorporated reference to
the latter. A complaint must “give the defendant fair notice of what the [plaintiff’s] claim is.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Defendants had no notice of a due process claim. But the district court is in the
best position to determine whether Morgan should be allowed to amend at this juncture.
Likewise, defendants contend that Morgan waived any Fourth Amendment claim in his
district court pleadings. Morgan maintains that defendants mischaracterized his claims. We
leave that question for the district court.
                                               19
