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

                                                                            FILED
                                                                         February 9, 2009

                                       No. 07-51423                   Charles R. Fulbruge III
                                                                              Clerk

JOSE RODRIGUEZ

                                                  Plaintiff - Appellant
v.

TIMOTHY RUTTER, in their individual capacities;
JOSE KLUGE, in their individual capacity

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:07-CV-115


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       Jose Rodriguez filed this action under 42 U.S.C. § 1983 against El Paso
County Sheriff’s Deputies Timothy Rutter and Jose Kluge, in their individual
capacities, alleging that they violated his right to freedom of speech and caused
him to be maliciously prosecuted for the display of an unauthorized sign. On the
motion of Rutter and Kluge, the district court dismissed half of Rodriguez’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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claim upon which relief may be granted. Rodriguez appeals that dismissal here.
Because we find that the Rule 12(b)(6) dismissal was improper, we vacate the
district court’s order and remand for further proceedings.
                                        I.
      This action comes to us on the grant of a motion to dismiss, and we
therefore accept the factual allegations of Rodriguez’s complaint as true. See,
e.g., Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). Accordingly, we
begin with a summary of the facts supplied by Rodriguez’s complaint.
      Rodriguez is the proprietor of Pepe’s General Store in San Elizario, a small
community outside El Paso. On the morning of October 27, 2006, Rodriguez
arrived at his store and noticed several El Paso County Sheriff’s Department
vehicles on the street. He suspected the vehicles were part of a roadblock, since
the sheriff’s department often erected roadblocks in San Elizario. Rodriguez did
not like the roadblocks because sometimes deputies entered his store to make
arrests, and he feared customers suspected him of colluding with law
enforcement. He also believed that he lost business on days the roadblocks were
erected.
      Rodriguez alleges in his complaint that, later in the morning, a boy walked
into Pepe’s General Store, followed by a sheriff’s deputy. The deputy detained
the boy and accused him of entering the store to evade a roadblock. The deputy
ultimately cited the boy for driving without proof of insurance. Rodriguez,
angered by the incident, decided to protest the roadblocks. He posted a sign that
read: “Ciudado.      Precaución. Retén del Sheriff,” or, translated, “Be
Careful/Precaution. Sheriff’s Checkpoint.”
      The sign quickly drew the deputies’ attention. Deputy Timothy Rutter was
the first to arrive; he questioned Rodriguez and told him to remove the sign.
According to Rodriguez, Deputy Rutter told him that if he did not remove the



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sign, the deputies would erect a roadblock in front of his store every day until he
went out of business.
      Meanwhile, more deputies, including Deputy Kluge, continued to arrive
until there were seven sheriff’s department vehicles in front of Pepe’s General
Store. Deputy Kluge noticed another sign posted on an electric pole that read:
“Minutemen go home.” He told Rodriguez to remove that sign, too. According
to Rodriguez, Deputy Kluge told him that if he did not remove that sign, the
electric company would remove the pole so that the store would have no
electricity. Deputy Kluge then pretended to call the electric company.
      There were other signs, advertising the Texas lottery and various
products, posted prominently on the property.         The deputies did not ask
Rodriguez to remove those signs.
      Rodriguez further states in his complaint that he resisted Deputies
Rutter’s and Kluge’s orders to remove the two signs. The deputies, in turn,
issued to Rodriguez a citation for the misdemeanor “display unauthorized sign
signal marking [sic].” After the deputies left, Rodriguez removed the signs. The
El Paso County District Attorney later prosecuted the case against Rodriguez
until, shortly before the first pretrial hearing, the case was dropped for lack of
evidence.
      The above facts are taken from the complaint. Rodriguez then filed this
42 U.S.C. § 1983 action against Deputies Rutter and Kluge, in their individual
capacities, alleging that they: (1) violated his right to freedom of speech and
expression as guaranteed by the First Amendment; (2) violated his right to
freedom of speech as guaranteed by the Texas Bill of Rights; and (3) caused him
to be maliciously prosecuted. Rodriguez sought damages, declaratory relief,
injunctive relief, and attorneys’ fees.
      Deputies Rutter and Kluge moved to dismiss Rodriguez’s complaint under
Federal Rule of Civil Procedure 12(b)(6). Their motion asserted that Rodriguez


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violated § 544.006(a)(3) of the Texas Transportation Code, which prohibits the
“display on or in view of a highway an unauthorized sign, signal, marking, or
device or railroad sign or signal,” by affixing his “Ciudado” sign to a “Road
Construction Ahead” traffic sign. The motion attached as exhibits the affidavits
of Deputies Rutter and Kluge, as well as a DVD copy of the patrol video that
recorded the deputies’ interaction with Rodriguez.
      Rodriguez countered that, far from showing that his complaint failed to
state a claim as required by Rule 12(b)(6), the deputies’ motion had instead
created a factual dispute.      Rodriguez countered that there was no road
construction near his store that day, and that the “Road Construction Ahead”
sign to which he had affixed his “Ciudado” sign had been abandoned on his
property.
      The district court granted in part, and denied in part, the deputies’ motion
to dismiss. The district court found that Rodriguez had affixed his “Ciudado”
sign to an “official traffic control device,” in violation of § 544.006(a)(3) of the
Texas Transportation Code. The district court then concluded that the deputies
had neither violated Rodriguez’s rights by instructing him to remove the sign,
nor caused Rodriguez to be maliciously prosecuted by issuing a citation to him.
On that basis the district court dismissed under Rule 12(b)(6) Rodriguez’s claims
as to the “Ciudado” sign; the district court permitted Rodriguez’s claims as to the
“Minutemen” sign to proceed. Since that time, however, the parties have
stipulated to the dismissal with prejudice of all claims, for the sole purpose of
expediting appellate review.
      Rodriguez now appeals the Rule 12(b)(6) dismissal of his claims as to the
“Ciudado” sign. He claims that, in deciding to dismiss those claims, the district
court impermissibly considered evidence outside the complaint and drew
inferences in favor of the deputies. He asks that we vacate the dismissal, and



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also reverse the district court’s ruling that he had no basis from which to seek
equitable relief.
                                        II.
      Rule 12(b)(6) permits dismissal of a complaint “for failure to state a claim
upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Dismissal is proper
only if “it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” See, e.g., Brown v.
Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999) (citations omitted).
Motions to dismiss under Rule 12(b)(6) are rarely granted and generally
disfavored. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000) (quoting Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677
F.2d 1045, 1050 (5th Cir. 1982)). We review a Rule 12(b)(6) dismissal de novo.
See, e.g., Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2007).
In our review, we accept well-pleaded factual allegations as true. See, e.g.,
Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). “The complaint must be
liberally construed, with all reasonable inferences drawn in the light most
favorable to the plaintiff.” Id. (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.
1998)).
      It is well-established that, in deciding whether to grant a motion to
dismiss, a district court may not “go outside the complaint.” See, e.g., Scanlan
v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). There is one recognized
exception to that rule: A district court may consider documents attached to the
motion to dismiss if they are referred to in the plaintiff’s complaint and are
central to the plaintiff’s claim. Id.; Collins, 224 F.3d at 498-99. If, however, a
district court considers other information “outside the complaint,” it must treat
the motion to dismiss as a motion for summary judgment. Kennedy v. Chase
Manhattan Bank USA, 369 F.3d 833, 839 (5th Cir. 2004). In the event a motion
to dismiss is converted to one for summary judgment, a district court must first

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give the parties notice, and then may consider all evidence presented. Scanlan,
343 F.3d at 539; see also FED. R. CIV. P. 12(b)(6). None of this occurred and
accordingly this appeal is from the grant of a Rule 12(b)(6) motion.
                                       III.
      We conclude that Rodriguez’s complaint, liberally construed and with all
reasonable inferences drawn in his favor, states claims upon which relief may
be granted. Rodriguez’s complaint alleged that, by instructing him to remove
his “Ciudado” sign and citing him for a misdemeanor offense, the deputies
violated his right to freedom of speech and caused him to be maliciously
prosecuted for the display of an unauthorized sign. Rodriguez’s complaint
sought relief under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff
must (1) allege a violation of rights secured by the Constitution or federal law
and (2) demonstrate the alleged violation was committed by a person acting
under color of state law. See, e.g., Randolph v. Cervantes, 130 F.3d 727, 730 (5th
Cir. 1997). There is no dispute that the deputies were acting under color of state
law. We therefore ask only whether Rodriguez has pleaded facts sufficient to
allege a violation of rights secured by the Constitution or federal law.
                                        A.
      We address Rodriguez’s freedom of speech claim first.            Rodriguez’s
complaint states facts that he urges indicate the deputies issued the citation in
retaliation for his exercise of his First Amendment right. “Any form of official
retaliation for exercising one’s freedom of speech, including prosecution,
threatened prosecution, bad faith investigation, and legal harassment,
constitutes an infringement of that freedom.” Izen v. Catalina, 398 F.3d 363, 367
n.5 (5th Cir. 2005) (quoting Smith v.Plati, 258 F.3d 1167, 1176 (10th Cir. 2001)
(citations omitted)).   To make out a First Amendment retaliation claim,
Rodriguez must show: (1) he was engaged in constitutionally protected activity;
(2) the deputies’ actions caused him to suffer an injury “that would chill a person

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of ordinary firmness from continuing to engage in that activity”; and (3) the
deputies’ actions were substantially motivated against his exercise of
constitutionally-protected activity. Id. (quoting Keenan v. Tejeda, 290 F.3d 252,
258 (5th Cir. 2002)). In addition, in a case such as this where the plaintiff has
been prosecuted, Rodriguez must show absence of probable cause to prosecute.
Id. at 368.
       The district court did not address each of the elements listed above in its
order granting in part the deputies’ motion to dismiss. Nevertheless, the district
court did conclude that Rodriguez had failed to state a claim because (1) his
speech was not constitutionally protected and (2) he failed to show absence of
probable cause. Rodriguez contends that, in so concluding, the district court
impermissibly considered evidence outside the complaint and drew inferences
in favor of the deputies. We agree with Rodriguez.
       In deciding that Rodriguez’s speech was not constitutionally protected, the
district court found that the “Road Construction Ahead” sign to which Rodriguez
affixed his “Ciudado” sign was an “official traffic control device.”1 By extension,
the district court found that Rodriguez had violated the Texas Transportation
Code by using an official traffic control device as a base for his sign. Rodriguez
is correct that, in so finding, the district court adopted facts outside his
complaint, which stated no more than that Rodriguez had posted a sign on his
property protesting the roadblock. The deputies’ motion to dismiss first alleged
that Rodriguez had violated the Texas Transportation Code. However, that
allegation was supported by the deputies’ affidavits and a DVD copy of the patrol
video. This evidence was not referred to in Rodriguez’s complaint and therefore



       1
         Section 541.304 of the Texas Transportation Code defines “official traffic-control
device” as “a sign, signal, marking, or device that is (A) consistent with this subtitle; (B) placed
or erected by a public body or officer having jurisdiction; and (C) used to regulate, warn, or
guide traffic.”

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could not be considered, if indeed it was, in deciding whether to grant a motion
to dismiss. Scanlan, 343 F.3d at 536.
      In deciding that Rodriguez failed to show absence of probable cause, the
district court found that the deputies reasonably issued the citation after they
witnessed Rodriguez violating the Texas Transportation Code. That finding,
however, assumed that Rodriguez violated the Texas Transportation Code, an
assumption that we have already stated was not supported by the allegations of
Rodriguez’s complaint and at best created a potential issue of fact. The district
court also found that the deputies had no reason to suspect that the sign had
been abandoned. Rodriguez again is correct that nothing in his complaint could
fairly give rise to that inference. Nor in fact did the deputies state that they had
no reason to believe the sign had been abandoned. In deciding whether to grant
a motion to dismiss, a district court is required to indulge any inference in the
plaintiff’s favor. See, e.g., Woodard, 419 F.3d at 351. The district court was
barred from assuming, in this instance, that the deputies did not know that the
sign had been abandoned.
      In sum, because the district court impermissibly considered evidence
outside the complaint and drew inferences in favor of the deputies, we find the
dismissal of Rodriguez’s First Amendment claim was improper. To the extent
the district court relied on the same considerations to dismiss Rodriguez’s
indistinguishable claim under the Texas Bill of Rights, that dismissal was also
improper.
                                        B.
      We now turn to Rodriguez’s malicious prosecution claim. The right to be
free from malicious prosecution is guaranteed by the Fourth Amendment. See
Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). We require that, to prove a
constitutional violation for malicious prosecution, a plaintiff must prove common
law elements of malicious prosecution. Evans v. Ball, 168 F.3d 856, 862 n.9, 863

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(5th Cir. 1999). Under Texas law, a plaintiff must show: “(1) a criminal action
was commenced against him; (2) the prosecution was caused by the defendant
or with his aid; (3) the action terminated in the plaintiff’s favor; (4) the plaintiff
was innocent; (5) the defendant acted without probable cause; (6) the defendant
acted with malice; and (7) the criminal proceeding damaged the plaintiff.” Izen
v. Catalina, 256 F.3d 324, 328 (5th Cir. 2001) (quoting Taylor v. Gregg, 36 F.3d
453, 455 (5th Cir. 1994)). The district court concluded that Rodriguez failed to
state a claim for malicious prosecution because he failed to show an absence of
probable cause. We have already stated that this finding depended on facts that
were not supported by the allegations of Rodriguez’s complaint. Dismissal of
Rodriguez’s malicious prosecution claim on that basis was therefore improper.
                                         IV.
      Rodriguez also asks that we reverse the district court’s ruling that he had
no basis from which to seek equitable relief. That ruling followed the district
court’s dismissal of Rodriguez’s claims under Rule 12(b)(6).           Because that
dismissal was improper, the ruling that Rodriguez had no basis from which to
seek equitable relief was also improper.
                                         V.
      We of course pass no judgment on whether Rodriguez is likely to prevail
on the merits. Our review merely satisfies us that Rodriguez has pleaded
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007). The dismissal of Rodriguez’s action is
therefore VACATED, and the case is REMANDED for further proceedings.
                                                    VACATED and REMANDED.




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