United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10311 

Summary Calendar

____________

Lonnie Kade Welsh, 

Plaintiff—Appellee, 

versus

Lamb County, Texas

Defendant—Appellant, 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 5:20-CV-077

______________________________

Before Higginbotham, Stewart, and Southwick, Circuit Judges. 

Per Curiam:*

Lonnie Kade Welsh appeals the district court’s January 24, 2022, final 

order dismissing Welsh’s claims under 28 U.S.C. § 1915A as well as the 

district court’s order on January 28, 2022, denying Welsh’s motion to amend 

judgment under Federal Rule of Civil Procedure 59(e).

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2024

Lyle W. Cayce

Clerk

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No. 22-10311

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Welsh’s claims relate to an incident that occurred at the Texas Civil 

Commitment Center (“TCCC”) where Welsh was civilly committed under 

Texas Health and Safety Code § 841.001 as a sexually violent predator. On 

or around November 13, 2017, Welsh was being transferred to a medical 

appointment when he became combative (the “November 2017 incident” or 

the “incident”). Welsh was returned to TCCC and ultimately presented 

himself to the nurse with a swollen eye, scrapes, and several additional 

injuries. Welsh reported the incident to the police, claiming that TCCC staff 

“slammed” his face into the floor causing injuries. After investigation, the 

Lamb County Police Department concluded that Welsh had not been 

assaulted. 

Instead, on November 28, 2017, the police arrested and charged 

Welsh under Texas Penal Code § 37.09 for tampering or fabricating physical 

evidence on the basis that Welsh harmed himself and falsely reported TCCC 

staff as the culprit. At trial, Welsh “admitted . . . he had a ʻplan’ to cause the 

employees to use force against him’ so that he could sue the employees ʻto 

get paid’ and to show that what the employees are doing at this facility ʻis 

actual punishment and not treatment.’”1 He was convicted in May 2018 and 

received an 11-year sentence.2 In 2019, however, the Texas Court of Appeals 

reversed Welsh’s conviction.3

On March 20, 2022, Welsh filed the current lawsuit against Lamb 

County, Scott Say, Ricki Redman, Ross Hester, and the City of Littlefield 

claiming that the investigation and prosecution of the November 2017 

incident violated his constitutional rights. Welsh’s case was transferred to a 

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1 Welsh v. State, 570 S.W.3d 963, 965 (Tex. App.—Amarillo 2019, pet. denied)

2 See generally id.

3 Id.

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magistrate judge for initial screening pursuant to 28 U.S.C. § 1915.4 To better 

understand Welsh’s allegations, the magistrate judge ordered Welsh to 

complete a Questionnaire and Declaration and further ordered defendants to 

develop a so-called Martinez report, comprised of authenticated records 

pertaining to the specific allegations made in the complaint. On December 

16, 2020, the magistrate judge recommended dismissing Welsh’s complaint.5

The district court adopted the magistrate judge’s findings and 

recommendations over Welsh’s objections and later denied Welsh’s motion 

to amend its judgment.

I.

Since 2019, Welsh has filed multiple lawsuits relating to the 2017 

incident in state court and at least 11 cases in the Northern District of Texas.6

As a result of his multiple filings, a Texas Court of Appeals has deemed 

Welsh a vexatious litigant.7 The Northern District of Texas has previously 

_____________________

4 See infra n.5. 

5 The magistrate judge noted that Welsh was not subject to the screening 

provisions of 28 U.S.C. § 1915A because he was confined pursuant to an order of civil 

commitment and was thus not considered a “prisoner” within the meaning of 28 U.S.C. 

§ 1915(h). However, because Welsh proceeded in forma pauperis, the magistrate judge 

determined he was subject to the screening provisions of 28 U.S.C. § 1915(e)(2)(B). The 

magistrate’s report and recommendations stated that Welsh’s complaint was screened 

pursuant to § 1915(e) but recommended dismissal under § 1915A. Because the magistrate 

specifically recognized that Welsh’s complaint was subject to screening under § 1915(e), 

and not § 1915A, the Court understands this to have been a typographical error. The district 

court may correct this error on remand. 

6 Welsh’s filings in the Northern District of Texas include cases numbered: 

(1) 5:17-cv-173 (voluntarily dismissed with prejudice); (2) 5:18-cv-20; (3) 5:19-cv-255; 

(4) 5:20-cv-24; (5) 5:20-cv-77 (the present case); (6) 5:21-cv-156; (7) 5:22-cv-98; (8) 22-

cv-183; (9) 5:22-cv-237; (10) 5:22-cv-237; and (11) 5:23-cv-28. See also case number 5-23-

CV-890-RP, filed in the Western District of Texas. 

7 See In re Welsh, No. 09-23-00027-CV, 2023 WL 2175768, at *1 (Tex. App.—

Beaumont 2023, no pet.).

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warned Welsh that he would face sanctions for further frivolous filings, as has 

this Court.8 The Supreme Court of the United States recently found that 

Welsh “has repeatedly abused this Court’s process.”9

Across his complaints, Welsh raises similar claims and frequently 

names the same defendants. Relevant here, Northern District of Texas case 

number 18-cv-20 and the present case were both brought in the Northern 

District of Texas; both name Lamb County, Scott Say, Ricki Redman, Ross 

Hester, and the City of Littlefield as defendants; and, in both cases, Welsh 

asserts that his constitutional rights were violated during the investigation

and prosecution stemming from the November 2017 incident. The multitude 

of Welsh’s filings and parallel issues raised make remand appropriate to 

consider whether Welsh’s current claims are barred by res judicata and the 

successive claim doctrine.10 Accordingly, this Court REMANDS this case 

for the district court to address this question in the first instance.

II.

“To assist district courts in discerning whether in forma pauperis

prisoner complaints may proceed, the Fifth Circuit has adopted a procedure 

_____________________

8 Welsh v. McLane, No. 20-10412, 2021 WL 5313626 (5th Cir. Nov. 15, 2021).

9 Welsh v. Collier, 143 S. Ct. 1046, reconsideration denied, 143 S. Ct. 2454 (2023).

10 See Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (“Dismissal by the court

sua sponte on res judicata grounds, however, is permissible in the interest of judicial

economy where both actions were brought before the same court.”); Ali v. Higgs, 892 F.2d 

438, 440 (5th Cir. 1990) (“However, we conclude that in an action proceeding under

section 1915(d), we may consider, sua sponte, affirmative defenses that are apparent from

the record even where they have not been addressed or raised in the district court . . . . a 

court of appeals should have latitude in the absence of the defendant, as does the district

court, to effect the salutary principles of section 1915(d) by ending the litigation where the

plaintiff has no basis on which to succeed.”); see also Omran v. Wyche, 745 F. App’x 225

(5th Cir. 2018) (affirming dismissal of 18 U.S.C. § 1983 suit subject to the screening 

provisions of 28 U.S.C. § 1915(e)(2) after district court sua sponte considered res judicata 

effect of prior suit).

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from the Tenth Circuit that allows the district court to obtain a supplemental 

record to further flesh out the facts behind a prisoner’s complaint.”11 These

documents form a Martinez report.

12[I]f the Martinez report conflicts with 

the pro se plaintiff’s allegations, the district court must accept the plaintiff’s

allegations as true, not the records in the report.”13

Accordingly, the magistrate judge in this case ordered the defendants 

to provide authenticated records to further develop the facts of the case. On 

this Court’s review, Welsh’s version of the facts and those contained in the 

Martinez report are in conflict. In particular, Welsh claims that TCCC staff 

“slammed” his face into the floor, that he reported this to Ross Hester, and 

that Hester made false allegations or omitted this information in his later trial 

testimony. These claims conflict with Hester’s account, as contained in the 

Martinez report. Instead of accepting Welsh’s allegations as true, it appears 

that the magistrate judge accepted Hester’s affidavit, police report, and grand 

jury testimony as true when recommending to dismiss Welsh’s case, and that 

the district court followed suit.

Furthermore, both the magistrate and district court judges also 

referenced the state court opinion reversing Welsh’s conviction. Although 

the court may “take judicial notice of documents in the public record . . . and 

may consider such documents in determining a motion to dismiss,”14 the 

_____________________

11 Davis v. Lumpkin, 35 F.4th 958, 963 (5th Cir. 2022) (italics in original).

12 See Davis, 35 F.4th at 963; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) 

(stating that the court “may require the defendants in prisoner-rights cases to construct an 

administrative record to assist the court in determining whether the complaint is 

frivolous.”); Wilson v. Barrientos, 926 F.2d 480, 483 (5th Cir. 1991) (requiring that the 

records be properly identified and authenticated).

13 Davis, 35 F.4th at 964 (italics in original).

14 R2 Invs. LDC v. Phillips, 401 F.3d 638, 639 n.2 (5th Cir. 2005).

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documents “should be considered only for the purpose of determining what 

statements [they] contain, not to prove the truth of [their] contents,”15 and 

typically must be attached to the complaint. 16 While Welsh referenced the 

state court opinion in his complaint, he did not attach a copy of the opinion 

to his complaint.

If the district court determines that Welsh’s suit is not precluded by 

prior decisions, it then must evaluate whether the magistrate judge properly 

identified and resolved any factual conflicts between Welsh’s complaint and 

the Martinez report.

III. 

For the reasons stated above, we VACATE and REMAND for 

reconsideration of the issues identified in this opinion. If the district court 

believes it may benefit from the assistance of counsel, the district court is free 

to appoint counsel on remand.

_____________________

15 Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1018 (5th Cir. 1996).

16 See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

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