### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 50324

RACHEL ESCAMILLA,

Plaintiff

- Appellant

v. PAMELA ELLIOTT; EDWARDS COUNTY, TEXAS,

Defendants

- Appellees

Appeal from the United States District Court for the Western District of Texas 2:16

- CV

- 121

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges. PER CURIAM: * Plaintiff

- Appellant Rachel Escamilla appeals the district court’s summary judgment dismissal of her claims and denial of her motion seeking leave to amend her complaint. W e AFFIRM in part , and REVERSE and REMAND in part.
I. From October 2012 to early August 2014, Plaintiff

- Appellant Rachel Escamilla (hereinafter, “Plaintiff” or “Escamilla”), a Hispanic woman, was employed by the Edwards County Sheriff’s Department, working as a jailer

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 4, 2020 Lyle W. Cayce Clerk Case: 19-50324 Document: 00515440544 Page: 1 Date Filed: 06/04/2020No. 19

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2 and d ispatcher at the county jail. 1 On August 5, 2014, Sheriff Elliott dishonorably discharged Escamilla from employment, contending she had unlawfully “looked up a license plate without a valid reason.” 2 Denying any wrongdoing, Escamilla appealed her termin ation to the Texas Commission on Law Enforcement (TCOLE). Finding insufficient evidence of misconduct, the TCOLE ordered that Escamilla ’s discharge status be changed from dishonorable to honorable. In addition to terminating her employment, Escamilla alle ges that Sheriff Elliott unsuccessfully pursued criminal charges against her on two occasions. With the latter attempt, in spring 2016, Sheriff Elliott herself presented her claims to the grand jury, which issued a “no bill.” Believing herself to have be en terminated , and subject to possible indictment, because she had engaged in constitutionally protected speech and is Hispanic, Escamilla filed suit against Sheriff Elliott, in the sheriff’s individual and official capacities, and Edwards County (collectively “Defendants”), on August 4, 2016. She claims Sheriff Elliot, a white female, “has a history of using her position in law enforcement to target Hispanic females and accuse them of crimes with little or no evidence , ” in addition to discriminat ing against the Hispanic women who work in the Sheriff’s Department. Escamilla’s complaint alleges original jurisdiction under 28
U. S.C. § 1331

— with her action “being brought under 42 U.S.C. § 1981 and

1 T he She riff’s Department employees included 5 deputies, as well as the 10 jailer /dispatchers, and a jail administrator. The jailer s’ duties are widespread, apparently including everything from jail security and maintenance to booking, feeding, and dispensing medicine to prisoners. Although the jail occasionally had 10

– 15 inmates at a given time, the usual occupancy, during Escamilla’s tenure was 7

– 10 . In addition to working at the jail, Escamilla also worked as an EMT for the Edwards County EMS. Tamara Whitworth, who worked as the jail administrator prior to being demoted to jailer /dispatcher, did the same. Thus, Escamilla and Whitworth were co

- workers both at the County jail and with County EMS.
2 Apparently jail personnel (presumably those handling dispatch duties) were supposed to obtain this information only upon request from a deputy. Case: 19-50324 Document: 00515440544 Page: 2 Date Filed: 06/04/2020No. 19

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3 §1983”

— and supplemental jurisdiction under 28 U.S.C. § 1367 over Texas law claims. The complaint also enumerates four “causes of action”: (1) 42 U.S.C. § 1981 violations (denial of “equal rights and benefits because of her race”); (2) First Amendment violations; (3) Texas Constitutional Violations; and (4)
Malicious Prosecution ; and seeks injunctive and monetary relief, including actual and punitive damages, and attorney’s fees. On December 29, 2017 , Defendants filed a summary judgment motion seeking dismissal of Escamilla ’s claims. On September 6, 2018 , t he assigned magistrate judge issued a report and recommendation ( “ R&R ” ) that all of Escamilla’s claims, except for her request for injunctive relief under the Texas Co nstitution , be dismissed

. Having considered the parties’ objections to the R&R, t he district court approved and adopted it on September 28, 2018 , granting summary judgment in Defendants’ favor relative to Escamilla ’s federal law claims and her claim for monetary relief under the Texas Constitution. Thereafter, on March 18, 2019, consi dering that all of Escamilla’s federal law claims had been dismissed and numerous criminal matters remained pending on its docket, the district court exercised its discretion, pursuant to 28 U.S.C. § 1367, to dismiss without prejudice the single remaining state law claim. In that same order, the district court also denied the motion for leave to file an amended complaint that Escamilla had filed, on September 19, 2018 , seeking to remed y pleading deficiencies noted in
the September 6, 2018 R&R

. T his appeal followed.
II. On appeal, Escamilla contends the district court err ed in dismissing her 42 U.S.C. § 1981 claim based o n a determination that it was improperly pleaded as a “freestanding § 1981 damages claim , ” rather than a s a § 1981 claim assert ed against a state actor “through” th e damages remedy provided Case: 19-50324 Document: 00515440544 Page: 3 Date Filed: 06/04/2020No. 19

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4 by 42 U.S.C. § 1983. 3 Considering the record before us, w e agree. I n Jett v. Dallas Indep. School Dist ., 491 U.S. 701 (1989) , the Supreme Court held that the “action at law” provided by § 1983 (for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws”) is the exclusive federal damages remedy for a violation of the rights guaranteed by § 1981 when the claim is pressed against a local government actor

. 4 Thus,

3 Regarding the discrimination prohibited by § 1981, the Supreme Court has conclud ed, based on the statute’s history, that “ Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. ” Saint Francis Coll. v. Al

- Khazraji, 481 U.S. 604, 613 (1987)

.

4 42 U.S.C. § 1981 and § 1983 provide , in pertinent part : § 1981. Equal rights under the law (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pai ns, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of c ontracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and i mpairment under color of State law.
§ 1983 Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subje cted, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be Case: 19-50324 Document: 00515440544 Page: 4 Date Filed: 06/04/2020No. 19

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5 plaintiffs must assert cause s of action against local government actors under § 1983 in order to obtain a monetary remedy for violations of civil rights protected by § 1981. In oth er words, plaintiffs cannot assert an independent cause of action under § 1981 against state actors; the § 1981 right must instead be asserted by means of the § 1983 procedural remedy. 5 Jett’ s holding has resulted in the dismissal of claims asserting violations of § 1981 by local government actors when the pertinent provisions of the complaint alleging that violation do not clearly and expressly also allege § 1 981’s requisite linkage with § 1983 by cit ing to § 1983. See Meyers v. La
Porte Ind ep. Sch. Dist., 277 F. App'x 333, 335 (5th Cir. 2007) ( “ Because Meyers brought her § 1981 claim independently of her § 1983 claim, the district court did not err by granting summary judgment to LPISD.”); Felton v. Polles , 315 F.3d 470, 482 (5th Cir. 2002) (where Count Three’s § 1983 claim asserted only Fifth and Fourteenth Amendment violations, and Count One’s § 1981 claim was independent and did not include § 1983, Count One failed to state a claim). In the instant appeal, the district court

— citing this court’s decisions in Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 464 (5th Cir. 2001) (Oden could not maintain an independent cause of action under § 1981 against county and sheriff in his official capa city), Meyers, and Felton

— found the allegations of Escamilla ’s complaint insufficient to allow monetary relief to be sought against a government actor for a violation of the rights provided by § 1981.

liable to the party injured in an action at law, suit in equit y, or other proper proceeding for redress[.]

5 In the context of § 1981 violations by private actors, the Supreme Court has implied a damages remedy to effectuate the declaration of rights contained in that provision because Congress has not established a remedial scheme by statute. Jett , 491 U.S. at 731. Case: 19-50324 Document: 00515440544 Page: 5 Date Filed: 06/04/2020No. 19

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6 Accordingly, it dismissed Escamilla ’s § 1981 claim, id entified as the first cause of action, without further discussion. Escamilla argues the district court erred in doing so because paragraph 43 of her complaint incorporate s paragraphs 1

– 42 and paragraph 4 states that the action is “brought under 1981 and 1983.” 6 Moreover, Escamilla argues, the

6 The pertinent provisions of the original complaint state:
I I I

. JURISDICTION AND VENUE
4. This Court has original jurisdiction to hear this complaint under 28 U.S.C. § 1331, this action being brought under 42 U.S.C. § 1981 and § 1983.

V. FIRST CAUSE OF ACTION: 42 U.S.C. § 1981 VIOLATIONS

43. Plaintiff incorporates paragraphs 1

– 42 as if restated herein.

44. Plaintiff was denied equal rights and benefits under § 1981 because of her

race.

45. Defendants denied Plaintiff equal rights when, among other things, they terminated Plaintiff and sought criminal indictment against her.

VI. SECOND CAUSE OF ACTION: FIRST AMENDMENT VIOLATIONS

4 6

. Plaintiff incorporates paragraphs 1

- 42 as if restated herein.

47. Plaintiff engaged in protected speech as a citizen concerning a matter of public concern when she complained about misconduct and falsification of documents by Tammy Whitworth to Sheriff Elliott.

48. Defendants were motivated by Plaintiff’s speech to terminate her.

49. Sheriff Elliott is individually liable under 42 U.S.C. § 1983 because free speech is a clearly established constitutional right, which precludes qualified immunity.

50. Edwards Co unty is liable under 42 U.S.C. § 1983 because it officially adopted and promulgated the decision to terminate Ms. Escamilla for engaging in protected speech. The County is also liable because the decision to terminate Ms. Escamilla was made by official to whom the County had delegated policy

- making authority.

51. Defendants violated the United States Constitution when it terminated Plaintiff and sought criminal indictments for engaging in protected speech. Case: 19-50324 Document: 00515440544 Page: 6 Date Filed: 06/04/2020No. 19

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7 Supreme Court’s decision in Johnson v. City of Shelby , 574 U.S. 10, 10

– 12 (2014) ( overturning Fifth Circuit precedent requiring plaintiffs to specifically invoke § 1983 in asserting a Fourteenth Amendment violation ) , as well as this court’s unpublished decision in Graham v. Bluebonnet Trails Co., 587 F. App’x 205 (5th Cir. 2014)
, have cast doubt on the formalistic approach taken by earlier cases in this circuit. In Graham, the panel , though affirming on different grounds, expressed its “ doubt s about the district court ’ s denial of [ the plaintiff's] section 1981 claim on the ground that she did not cite section 1983 as the procedural vehicle for asserting such a claim, particularly after the Supreme Court ’ s decision in Johnson v. City of Shelby

. ” 587 F. App’x at 206 (internal citations omitted)

. In Johnson v. C ity of Shelby , the Graham panel explained, “the [Supreme ] Court noted that the Federal Rules of Civil Procedure do not countenance dismissal of a co mplaint for imperfect statement of the legal theory supporting the claim asserted.” Id. Escamilla ’s complaint certainly is not a model of clarity

. 7 For instance, although § 1983 is expressly cited within the “Second Cause of Action: First Amendment Violations” section, the same is not true for the “First Cause of Action: 42 U.S.C. § 1981 Violations” section. Nevertheless, paragraph 4 identifies the “ action , ” not simply a single “ claim ” or “ cause of action, ” as “being brought under 42 U.S.C. § 1981 and § 1983

. ” Furthermore, the asserted factual bases of the alleged § 1981 equal rights violation s are sufficiently clear, and

7 Rules 8 and 12 of Federal Rules of Civil Procedure require only that a complaint include sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl . Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Nevertheless , litigants are, of course, encouraged to plead that which is appropriate, pertinent, and clarifying, relative to their claim, rather than merely providing only the bare minimum required by law. Case: 19-50324 Document: 00515440544 Page: 7 Date Filed: 06/04/2020No. 19

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8 the law is well

- settled that § 1983 provides the only federal damages remedy against local government actors for violati ons of § 1981. Thus, considering Escamilla ’s complaint against the backdrop of Johnson v. City of Shelb y, we reverse the district’s court ’s dismissal with prejudice of Escamilla ’s claim seeking relief for alleged violations of h er § 1981 rights

. See also Smith v. Barrett Daffin Frappier Turner & Engel, LLP, 735 F

. App ’ x 848, 854 (5th Cir. 2018) (citing Johnson v. City of Shelby ) (“It bears emphasizing that factual allegations alone may state a claim for relief

— even without referencing the precise lega l theory (or statute) upon which the plaintiff seeks relief.”). 8 Nevertheless, a lthough we find reversal warranted in this instance, we emphasize that we have not determined that Escamilla ’s allegations necessarily otherwise state a plausible claim for re lief or are sufficient to survive summary judgment. That will be for the district court to decide on remand. Rather, our narrow ruling regarding this claim is limited solely to the district court’s application of this pleading formalit y in the instant matter

. III. As her second cause of action, Escamilla contends that her termination (dishonorable discharge) from employment was, in part, retaliation for having
exercised her Fir st Amendment free speech rights

. On appeal, Escamilla

8 We note this court’s April 2020 unpublished decision in Montgomery

- Smith v. Louisiana Dep ’t of Health & Hosps ., No. 18

- 30987, 2020 WL 1907546 at *3 (Apr. 17, 2020) , wherein a nother panel of this court, citing Felton v. Polles , 315 F.3d 470, 482

- 83 (5th Cir. 2002), affirmed the district court’s dismissal of th at plaintiff’s § 1981 cause of action. The panel reasoned that the § 1983 claim asserted there lacked language incorporating the § 1981 claim, and the § 1981 claim otherwise failed becaus e it was pleaded independently of the § 1983 cause of action. Montgomery

- Smith is distinguishable and, as an unpublished opinion , does not constitute controlling precedent under our rule of orderliness. See 5th Cir. R. 47.5.4; United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (“Under our rule of orderliness , only an intervening change in the law (such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent.”) Case: 19-50324 Document: 00515440544 Page: 8 Date Filed: 06/04/2020No. 19

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9 maintains the district court erred in dismissing her First Amendment retaliation claim, asserted pursuant to 42 U.S.C. § 1983, based on a determination that the statements in question were not made in Escamilla ’s capacity as a “private citizen on a matter of public concern ” and were not constitutionally protected speech

. I t is well settled that “public employees do not surrender all First Amendment rights by reason of their employment.” Garcetti v. Ceb allos , 547 U.S. 410, 417 (2006). Rather, some speech , even if it “concerns information related to or learned through public employment , ” deserves protection because “[g]overnment employees are often in the best position to know what ails the agencies for which they work.” Lane v. Franks , 573 U.S. 228, 236 (2014). Yet, “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient prov ision of public services.” Malin v. Orleans Par. Commc’ns Dist ., 718 F. App’x 264, 268 (5th Cir. 2018) ( quoting Garcetti , 547 U.S. at 418). I n determining whether a public employee’s speech is protected by the First Amendment, courts must balance these countervailing interests. The Supreme Court has enunciated a two

- step process to guide this inquiry : The first step requires determining whether the employee spoke as a citizen on a matter of public

concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The q uestion becomes whether the relevant government entity had an adequate justificatio n for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the Case: 19-50324 Document: 00515440544 Page: 9 Date Filed: 06/04/2020No. 19

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10 speaker’s expressions and employment. A government entity has broader discretion to restrict spe ech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.
Garcetti , 547 U.S. at 418. The district court ended its inquiry at the first step upon finding that

“ Plaintiff’s speech was not ‘ made by a private citizen about a matter of public

concern. ’ ” As explained by the district court, the controlling factor in this first step is whether Escamilla ’s speech was made “pursuant to [her] duties” as a “jailer/dis patcher” for Edwards County. Garcetti, 547 U.S. at 421. While relevant, Escamilla ’s “formal job description” and “the fact that the speech relates tangentially to the subject matter of [her] employment” are not dispositive. Davis v. McKinney, 518 F.3d 304 , 312 (5th Cir. 2008). 9 Escamilla contends that her termination was, in part, retaliation for having exercised her First Amendment free speech rights on four particular
occasions: (1) On June 4, 2014, Plaintiff spoke on the phone to Joanna Reyes, a fellow jailer/dispatcher, and related that [then

- Jail Administrator Tamara] Whitworth was not doing what she was supposed to be doing to book an inmate in the jail, particularly with respect to one inmate wh o was booked in the jail without a commitment (“ the Booking Statement ”)

9 According to Defendants’ interrogatory responses: The duties of a jailer include bo oking, maintaining order in the jail, conducting observations of inmates, feed [ ing ] the inmates, assist [ ing ] with inmate medications, clean [ ing ] cells and other related duties. The duti es of t elecommunicators [dispatchers] receive and dispatch emergency and non

emergency police, fire and ambulance personnel. They answer emergency and

non
- emergency calls, gather information, and dispatch appropriate emergency services. Case: 19-50324 Document: 00515440544 Page: 10 Date Filed: 06/04/2020No. 19

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11 (2) The next day, on June 5, 2014 , Plaintiff talked about “Sheriff’s office information” [the same matter discussed on June 4] to Joanna Reyes (“the Office Information Statement ”)
(3 ) On July 12, 2014 , Plaintiff complained to Sheriff Elliott that Whitworth was circumventing jail procedures and falsifying documents to obtain medical treatment for her son who was an inmate in the jail at the time (“ the Medical Treatment Statement”)
(4) On July 31, 2014, while working an EMS shift, Plaintiff told Whitworth how surprised she was that no one had been arrested for assaulting Deputy Jason Reed in an incident where Reed’s gun had been taken by the assailant and that Sheriff Elliott was “ke eping it quiet” (“ the Assault Statement ”).

Ex amin ing these statements under applicable legal principles , we find no error in the district court’s determination

. June 4

- 5, 2014

— " Bo o king Statement” and “Office Information Statement”
Escamilla ’s June 4, 201 4 and June 5, 2014 statements are telephone conversations that she had , while on duty at the jail, with fellow jailor/dispatcher, Joanna Reyes . The statements concerned apparent discrepancies that Escamilla alleged she had observed in Whitworth’s handling of booking duties and related paperwork, in her role of job administrator, that could impact Escamilla ’s and Reyes’ duties as jailers. The conversation occurred while Reyes was at home, off

- duty, because she was not scheduled to work a shift on those days. According to Escamilla , two persons (two jailer/dispatchers or one jailer/dispatcher and the jail administrator (Whitworth) ) worked each shift. Thus, it is logical that E scamilla apprised Reyes of ongoing work matters at a time wh en Escamilla was on duty but Reyes

was not

. Case: 19-50324 Document: 00515440544 Page: 11 Date Filed: 06/04/2020No. 19

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12 Under these circumstances, the district court did not err in concluding that Escamilla had spoke n to Reyes , a co
- worker, as an employee, rather than

as a private citizen. Although Escamilla ’s job did not necessarily demand that

s he make such complaints, the subject of the statements bore on her (and Reyes’) ability to carry out the duties that her job did require

— booking and processing inmates. See Williams v. Dallas Indep. Sch. Dist ., 480 F.3d 689,
693

– 94 (5th Cir. 2007) (“Simpl y because [ the p laintiff] wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job.” Rather, because his speech was related to “information so that he could properly execute his duties,” it wa s not protected). Furthermore, that the subject of the conversation concerned a public employee’s job performance does not automatically make it a matter of “public concern.” See Connick v. Myers , 461 U.S. 138, 149 (1983) (“ To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark

— and certainly every criticism directed at a public official

— would plant the seed of a constitutional

case. ”) July 12, 2014

— “Medical Treatment St atement”
Escamilla ’s third alleged instance of protected speech is her July 12, 2014 complaint to Sheriff Elliott regarding Whitworth’s proclaimed misconduct in administering medicine to inmates
, i.e

. , that Whitworth was circumventing jail procedures and f alsifying documents to obtain medical treatment for her son, who was an inmate of the jail at the time, rather than other inmates. The district court properly concluded that m edical treatment of inmates is undoubtedly a topic of public concern , particular ly when it involves allegations of corruption and misconduct. See A nderson v. Valdez , 845 F.3d 580, 595 (5th Cir. 2017) (“Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of

. . . officials, in Case: 19-50324 Document: 00515440544 Page: 12 Date Filed: 06/04/2020No. 19

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13 terms of content, clearly concerns matters of public import”) (internal citations omitted). Even so, the First Amendment does not protect speech made in the course of a public employee’s duties. Anderson
, 845 F.3d at 595

– 98. Accordingly, t he d istrict c ourt properly considered that this speech was : [O]n

- duty during her regular work hours, concerning information she learned at work, the situation reported affected Plaintiff’s ability to perform her official work duties [ e.g ., assist with inma te medications] as a jailer, and the information initially was reported privately, one

- on
- one, within her chain of

- command, to the Sheriff who is the ultimate responsible authority for the administration of the jail in Edwards County.
Furthermore, “w hen a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job .” Davis , 518 F.3d at 313

. But id . (I f job concerns are also reported outside the workplace, the external communications are ordinarily made as a citizen rather than employee). As the district court noted, Escamilla “did not make an effort to illuminate the public of this conduct by reporting it to a person outside her chain of command , and therefore, they were not made . . . as a private citizen.”
July 31, 2014

— " Assault Statement ” Finally, the d istrict c ourt did not err in finding that Escamilla ’s fourth alleged instance of protected speech

— her comments to Whit worth concerning Sheriff Elliott’s handling of an assault of a deputy whose gun had been taken by the assailant

— was not made as a private citizen on a matter of public

concern. While public safety undoubtedly is a matter of public concern, other factors preclu de these communications from being protected speech offered by a private citizen. Although the conversation occurred when both Escamilla and Whitworth were off

- duty from the jail, and instead working an EMS shift, it remained a conversation between Sherif f’s Department co

- workers regarding Case: 19-50324 Document: 00515440544 Page: 13 Date Filed: 06/04/2020No. 19

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14 their boss’s job performance, rather than a conversation with a member of the public. Lastly , the statement was not bolstered by any accompanying factual information, and thus constituted litt l e more than a statement of unsupported personal opinion or speculation.

IV.

Escamilla likewise appeals the district court’s dismissal of her malicious prosecution claim, as well as the district court’s denial of her motion requesting leave to amend her complaint relative to that c laim. 10 We find no error in either ruling. The United States Constitution does not provide a “freestanding” right of freedom from m a licious prosecution

. Castellano v. Fragozo , 352 F.3d 939, 942 (5th Cir. 2003). Thus, “causing charges to be filed without probable cause will not without more violate the Constitution.” Id. at 953. Instead, stating a malicious prosecution claim under federal law requires officials to have violated specific constitutional rights in c onnection with a malicious prosecution. Cuadra v. Houston Indep. School. Dist., 626 F.3d 808 (5th Cir. 2010). As set forth in paragraphs 57

– 63 of her complaint, Escamilla ’s malicious prosecution allegations fail to assert a federal constitutional violatio n. Attempting to avoid dismissal of her claim, Escamilla emphasize s that paragraph 57 of her complaint incorporates paragraphs 1

– 56 by reference, and that paragraphs 37 and 38 allege that of the four persons terminated from the Sheriff’s Department for t he same crime of (allegedly) unlawfully releasing confidential information, “Sheriff Elliott only pursued criminal charges against

10 Escamilla’s appeal of the district court’s denial of her motion seeking leave to amend her complaint includes a proposed amendment of her § 1981 claim. Specifically, Escamilla sought to amend her complaint to include an express statement confirming that her § 1981 cl aim was asserted pursuant to § 1983’s procedural vehicle. Given our reversal of the district court’s dismissal of Escamilla’s § 1981 claims on grounds that it lacked the necessary linkage with § 1983, this aspect of her appeal is moot. Case: 19-50324 Document: 00515440544 Page: 14 Date Filed: 06/04/2020No. 19

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15 the Hispanic female, Ms. Escamilla

. ” She adds: “ The Sheriff’s actions were based on race. . . .” Referencing these allegation s, Escamilla contends that the pleading alleges a “class

- of

- one” Fourteenth Amendment equal protection claim of the sort recognized in Village of Willowbrook v. Olech, 528 U.S. 562, 563 (2000), thus providing the requisite federal constitutional violation necessary for a federal malicious prosecution claim. In Village of Willowbrook
, the plaintiff stated a viable equal protection constitutional claim based on allegatio ns that the Village demanded a 33

- foot easement from the plaintiff, but only a 15

- foot easement from everyone else, and that the demand was “irrational and wholly arbitrary.” The district court rejected this argument, first urged in response to Sheriff Ell iott’s summary judgment motion, concluding the malicious prosecution allegations of the co mplaint f a ll short of providing adequate notice of Escamilla ’s avowed “equal protection” constitutional claim

. The district
court additionally concluded that Escamill a had not timely sought to remedy the claim’s constitutional deficiencies by amendment, and thus d eni ed Escamilla ’s motion requesting leave to amend her complaint. The parties dispute whether the proposed amendment is governed by Rule 15 or Rule 16 of th e Federal Rules of Civil Procedure

. Dussouy v. Gulf Coast Inv. Corp ., 660 F.3d 595, 597

– 98 (5th Cir. 1981) (Rule 15(a) amendments); S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) ( Rule 16(b) governs amendment o f pleadings after a scheduling order deadline has expired ). Nevertheless, they agree that

we review the district court’s d enial of leave to amend for an abuse of discretion

. Dussouy, 660 F.3d at 597; S&W Enterprises, L.L.C
., 315 F.3d at
53 5. They likewise agree that leave to amend a pleading may be justified where the party seeking amendment has engaged in undue delay

. Dussouy, 660 F.3d at 598. Here, in denying the motion, the district court emphasiz ed Case: 19-50324 Document: 00515440544 Page: 15 Date Filed: 06/04/2020No. 19

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16 the “lengthy delay between filings” and that “[p]laintiffs should not await a court’s decision prior to attempting to amend a faulty complaint.” On the record before us, we find no abuse of discretion. As noted by the district court, the motion for leave to amend was not filed
until September 2 01 8

— two years after the original complaint was filed in August 2016. In this instance, a fair reading of the malicious prosecution cause of action described in paragraphs 57

– 63 of the complaint suggest s nothing

more at issue than an assertion of prosecution without p robable cause . Indeed, it is not even readily apparent from the August 2016 pleading that Escamilla intended to assert a federal malicious prosecution claim , as opposed to one asserted under state tort law

. In any event, given that Sh eriff Elliott’s narrow assessment of the scope of the claim was revealed in the December 2017 summary judgment motion, and acknowledged by Escamilla in her February 2018 opposition memorandum , we cannot fault the discretionary decision of the district cour t
to deny a motion to amend not filed until seven months later in obvious response to the magistrate judge’s issuance of a report and recommendation for dismissal thirteen days earlier. See Reliance Ins. Co. v. Louisiana Land & Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997) ( “ District judges have the power to control their dockets by refusing to give ineffective litigants a second chance to develop their case. ”) H ad Escamilla promptly sought to amend her claim in response to deficiencies rai sed nine months earlier in Sheriff Elliott’s summary judgment motion, the issues in dispute might have been streamlined, resources likely would have been conserved, and final resolution might have been Case: 19-50324 Document: 00515440544 Page: 16 Date Filed: 06/04/2020No. 19

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17 expedited. 11 Furthermore , Escamilla ’s motion for leave to amend offered no explanation for (or even acknowledgement of) the delay. Finally, even if amendment had been allowed, dismissal of the malicious prosecution still would have been warranted

. As noted by the district court’s order, Escamilla has never al leged (or sought to allege) that she was arrested or formally charged with a crime. Sheriff Elliott’s attempts to convince the grand jury to issue an indictment failed and E scamilla was never charged by bill of information. Thus, it is not apparent that the “institution of prosecution” element of a malicious prosecution claim could have been satisfied.
V. As stated herein, we conclude that Plaintiff

- Appellant Escamilla’s August 2016 complaint sufficiently link s her allegation s of a violation of the rights protected by 42 U.S.C. § 1981 to the procedural remedy provided by 42 U.S.C. § 1983. Accordingly, we REVERSE and REMAND that portion of the district court’s judgment for further proceedings consistent with this ruling. We oth erwise AFFIRM the judgment of the district court

.

11 To be sure, the “more than 1,800 pending criminal defendants on its docket that take priority over all civil matters” referenced by the district court in explaining the decision to dismiss the single remaining state law claim without prejudice, rather than continuing to exercise supplemental jurisdiction, more than adequately demonstrate the importance of efficient use of judicial resources. Case: 19-50324 Document: 00515440544 Page: 17 Date Filed: 06/04/2020