United States Court of Appeals

for the Fifth Circuit

No. 21-20623

Summary Calendar

Percy Utley, 

Plaintiff—Appellant,

versus

City of Houston; Art Acevedo; John Doe Officers, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-1907

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Percy Utley filed suit under 42 U.S.C. § 1983 against the City of 

Houston, Houston Police Chief Art Acevedo, and John Doe Officers, for

alleged violations of his First, Fourth, and Fourteenth Amendment rights 

that occurred when he was arrested during a protest following the death of 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2022

Lyle W. Cayce

Clerk

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No. 21-20623

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George Floyd. The district court granted the defendants’ motion to dismiss 

pursuant to Federal Rule of Civil Procedure 12(b)(6), concluding that Utley’s 

first amended complaint was insufficient to state a claim and his proposed 

second amended complaint failed to cure the deficiencies. Utley appeals,

contending that the district court erred by dismissing his complaint and by 

denying his motion to amend his complaint. We affirm.

We review the grant of a Rule 12(b)(6) motion to dismiss de novo. 

Cousin v. Small, 325 F.3d 627, 631 (5th Cir. 2003) (per curiam). “To survive 

a motion to dismiss, a complaint must contain 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)). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw a reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. Because Utley’s 

first amended complaint contains nothing other than conclusory allegations 

in support of his claims, the district court did not err in granting the 

defendants’ motion to dismiss. See Iqbal, 556 U.S. at 678.

Utley’s Fourth Amendment claim fails because there was probable 

cause to support his arrest. See Deville v. Marcantel, 567 F.3d 156, 164–65 

(5th Cir. 2009). And Utley was not engaged in constitutionally protected 

activity when he was arrested—he was obstructing a roadway in violation of 

Tex. Penal Code § 42.03—so his First Amendment retaliation claim 

fails. See Singleton v. Darby, 609 F. App’x 190, 193 (5th Cir. 2015). Third, 

Utley did not support his Fourteenth Amendment claim with anything more 

than conclusory allegations insufficient to state a claim under Rule 12(b)(6). 

See Iqbal, 556 U.S. at 678; Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 

441–42 (5th Cir. 2015). Finally, Utley’s claim against the City of Houston 

fails because he does not identify any official municipal policy that caused the 

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alleged constitutional violations. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 

(1978); see Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). 

We review Utley’s contention that the district court erred by denying 

his motion for leave to amend his complaint for an abuse of discretion. See 

Pervasive Software Inc. v. Lexware GmbH, 688 F.3d 214, 232 (5th Cir. 2012). 

A district court “should freely give leave [to amend] when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). However, “[d]enying a motion to 

amend is not an abuse of discretion if allowing an amendment would be 

futile.” Marucci Sports, L.L.C. v. NCAA, 751 F.3d 368, 378 (5th Cir. 2014) 

(citing Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2004)). An 

amendment is futile if it would not survive a Rule 12(b)(6) motion. Id.

We agree with the district court that Utley’s proposed second 

amended complaint failed to cure the deficiencies in his first amended

complaint and that allowing him further to amend his complaint would be 

futile. Accordingly, we discern no abuse of discretion in the denial of Utley’s 

motion to amend. See Marucci Sports, L.L.C., 751 F.3d at 378.

AFFIRMED.

Case: 21-20623 Document: 00516362303 Page: 3 Date Filed: 06/17/2022