     Case: 18-20080      Document: 00514835572         Page: 1    Date Filed: 02/14/2019




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


                                      No. 18-20080
                                                                            FILED
                                                                     February 14, 2019
                                                                       Lyle W. Cayce
BENJAMIN OSHEA CALHOUN,                                                     Clerk

              Plaintiff–Appellant

v.

TONY VILLA, OFFICER; G.D. ROGERS, OFFICER; Z.J. MATHIS,
OFFICER; MARTHA MONTALVO, HOUSTON POLICE DEPARTMENT
CHIEF OF POLICE; CITY OF HOUSTON; J.A. DEVEREUX, OFFICER; S.L.
SIEVERT,

              Defendants–Appellees




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-3001


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Benjamin Calhoun, proceeding pro se, alleges that the Houston Police
Department violated his constitutional rights by arresting him on two
occasions for Class C misdemeanors that were only punishable by a fine. He



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20080

claims that these arrests violated his rights under the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments.
                                        I.
      On May 20, 2016, Calhoun was arrested for jaywalking by Officers Villa
and Rodgers. Jaywalking is illegal pursuant to Texas Transportation Code §
552.006. It is a Class C violation and under Texas Penal Code § 12.23 is
punishable by a fine not to exceed $500.
      On August 28, 2016, Calhoun was arrested by Sergeant Sievert for
standing on railroad tracks and refusing to leave after being so directed. Three
other police officers arrived and participated. This violation is also a Class C
misdemeanor punishable by a fine according to Texas Penal Code §
28.07(b)(2)(A).
      Calhoun filed this lawsuit on October 6, 2016. He filed the Amended
Complaint on November 21, 2016. He asserts constitutional violations by the
City of Houston and six officers individually, under § 1983, as well as
corresponding state law claims. The City of Houston, the police chief, and the
officers on the scene moved for dismissal under Federal Rule of Civil Procedure
12(b)(6). Upon referral, the magistrate judge recommended dismissal of all of
Calhoun’s claims. The district court adopted the recommendation in full.
      Calhoun appealed asserting that (1) the district court erred by granting
the Rule 12(b)(6) motions, (2) the district court abused its discretion by denying
Calhoun’s successive amendments, and (3) the district court abused its
discretion by denying Calhoun’s motion to recuse.
                                       II.
      This Court reviews the district court’s ruling on a Rule 12(b)(6) motion
de novo. Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997).
A Rule 12(b)(6) motion is asserted for failure to “state a claim upon which relief


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                                         No. 18-20080

can be granted.” FED. R. CIV. P. 12(b)(6). Motions for failure to state a claim
are    “disfavored     in    the   law    and       rarely    granted.”   See Thompson      v.
Goetzmann, 337 F.3d 489, 494-95 (5th Cir. 2003); Lowrey, 117 F.3d at 247. To
overcome a Rule 12(b)(6) motion, the complaint must contain, “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). The complaint is to be “liberally construed in favor of
the plaintiff.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
        This Court generally reviews the denial of a motion for leave to amend
for abuse of discretion. Daly v. Sprague, 675 F.2d 716, 723 (5th Cir. 1982).
However, when the court’s denial was based “solely on futility” the Fifth
Circuit reviews de novo. Thomas v. Chevron, 832 F.3d 586, 590 (5th Cir. 2016).
       This Court reviews the denial of a motion to recuse for abuse of
discretion. Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003).
“Under 28 U.S.C. § 144, a judge is to recuse himself if a party to the proceeding
‘makes and files a timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either against him or in
favor of any adverse party . . . .’” Id. The affidavit must be filed within ten days
of the beginning of the term at which the case will be considered. Id.
                                             III.
       The district court granted the Rule 12(b)(6) motion for failure to state a
§ 1983 claim. In order to state a claim under § 1983, a plaintiff must allege a
violation of his federal rights by a person acting “under color of state law.” See
Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999). Warrantless arrests
are not per se violations of the Fourth Amendment. Atwater v. City of Lago
Vista, 532 U.S. 318, 323 (2001). As Calhoun pointed out, in Atwater, a state
statute explicitly authorized the warrantless arrest. Id. This Court has stated,


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in applying Atwater, that “[a] law enforcement officer can make a warrantless
arrest only if a federal or state law imbues him with that authority.” United
States v. Sealed Juvenile 1, 255 F.3d 213, 216 (5th Cir. 2001).
       There is an applicable Texas statute that authorizes peace officers to
make warrantless arrests in this situation: “[a] peace officer may arrest an
offender without a warrant for any offense committed in his presence or within
his view.” TEX. CRIM. PROC. CODE ANN. § 14.01 (West 2017). 1 Because both
misdemeanor violations occurred within view of the officers, they would be
justified in making an arrest, even though the violations were only punishable
by a fine. The district court was correct in applying relevant state law to the
question at hand. Because a state statute authorized the warrantless arrest in
this case, the officers’ actions were not unconstitutional, and the dismissal was
appropriate. 2
       The district court dismissed the state law claims as well. Calhoun
appears to assert claims for false arrest, false imprisonment, and malicious
prosecution. Texas law protects governmental entities from suit through
sovereign immunity, unless the area of liability is specifically waived by the
Texas Tort Claims Act, such as injury by an employee’s motor vehicle, injury
caused by property conditions, and claims arising from defects in premises.
TEX. CIV. PRAC. & REM. CODE ANN. § 101 et seq. None of Calhoun’s claims fall
under these categories. Additionally, under Texas law, “[i]f a suit is filed . . .



       1   The defendants do not cite this statute, instead referencing Atwater for the
constitutionality of warrantless arrests, without noting the requirement for a statute at all.
Calhoun, however, points out the requirement for an applicable statute and the defendants’
failure to cite one. The magistrate judge did supply the applicable statute in the
memorandum and recommendation, as adopted by the district court. Calhoun contends that
the magistrate judge cannot supply the statute when the defendants failed to do so. We
disagree.
        2 Thus, all of Calhoun’s claims relying on the officers’ actions being unconstitutional

also fail to state a claim upon which relief can be granted.
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against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.”
Id. § 101.106(e). Therefore, Calhoun’s state law claims against both
governmental entities and individual defendants were properly dismissed. 3
      Next, we address Calhoun’s attempts to amend the complaint. Although
Calhoun was entitled to amend his complaint once, the district court denied
his second and third requests for leave to amend. Federal Rule of Civil
Procedure 15 allows for one amended complaint “as a matter of course,” but
other amendments may only be filed “with the opposing party’s written consent
or the court’s leave.” FED. R. CIV. P. (15)(a)(1)–(2). Allowing amendments is
preferred and “[t]he court should freely give leave when justice so requires.”
Id. There are several reasons that a district court may deny leave to amend
without abusing its discretion–one of which is “futility of amendment.” Forman
v. Davis, 371 U.S. 178, 182 (1962) (others listed include “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party . . .”).
      As noted above, when futility is the sole grounds for denial, this Court
reviews de novo. In the memorandum and recommendation adopted by the
district court, the magistrate judge appears to rely solely on the futility of the
successive amendments: “Consequently, Calhoun’s proposed amendment
would be futile, and his Motions for Leave to Amend are DENIED.” (internal
citations omitted). No other grounds for denial are mentioned.



      3  Calhoun also confusingly argues that the officers lacked probable cause to arrest
him. In his complaint, however, he concedes that the officers were physically present when
the violations occurred, and we have already concluded that the arrest was constitutionally
permissible. Calhoun’s argument therefore lacks merit.

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       Calhoun’s second and third amended complaints made some formatting
changes (which would not affect the plausibility of the complaint) and added
substantive claims under 42 U.S.C. §§ 1985(3) and 1986. Section 1985(3)
prohibits, inter alia, a conspiracy to deprive a person of the equal protection of
the law or equal privileges and immunities under the law. Relatedly, § 1986
establishes a cause of action against a person who fails to act when they have
knowledge of a § 1985 conspiracy. Neither of these claims is supported by the
well-pleaded facts in Calhoun’s amended complaints. Therefore, as the
magistrate judge stated, his proposed amendments would be futile and would
not affect the district court’s disposition on the Rule 12(b)(6) motion. 4
       Calhoun argues that the scheduling order set up by the district court led
him to believe he was able to amend as many times as he wanted within that
time frame. Although we recognize that this could have been unclear to a pro
se litigant and it would have been better for the district court to make it explicit
that unlimited amendments would not be allowed, this does not change the
final evaluation of his proposed amendments. The district court’s order was
correct.
       Finally, we address Calhoun’s appeal of the denial of his motion to recuse
Judge Bennett. First, Calhoun’s motion, filed ten months after he filed the
lawsuit, was untimely. A motion to recuse must be filed within ten days of the
beginning of the term when the case is to be considered, unless the movant can
show good cause for delay. See Patterson, 335 F.3d at 483. Calhoun did not
argue good cause to explain the delay. Second, the substance of his argument
in favor of recusal was based on Judge Bennett’s adverse rulings in other cases,

       4 See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (“Dismissal of
a pro se complaint for failure to state a claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.”).

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which is not sufficient to require recusal. Liteky v. United States, 510 U.S. 540,
556 (1994). Therefore, the district court did not abuse its discretion in this
determination.
                                       IV.
      For the reasons cited above, we AFFIRM the district court’s granting of
the Rule 12(b)(6) motion, the denial of the motions to file successive
amendments, and the denial of the motion to recuse.




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