IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20022

MEGAN WINFREY,

Plaintiff - Appellant

v.

LENARD JOHNSON, Former San Jacinto County Sheriff’s Deputy Chief,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-448

Before JONES, HAYNES, and OLDHAM, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

After her murder conviction was overturned, Megan Winfrey sought

damages under § 1983 and has appealed the district court’s grant of partial 

summary judgment dismissing her Fourth and Fourteenth Amendment 

claims. Because a panel of this court has already addressed the same issues 

in her brother’s case, this panel is bound by precedent to reverse and remand 

on Winfrey’s Fourth Amendment claim. The district court’s dismissal of 

 * 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.

United States Court of Appeals

Fifth Circuit

FILED

March 26, 2019

Lyle W. Cayce

Clerk

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Winfrey’s Fourteenth Amendment claims was proper, however, and this court 

declines to address as untimely her arguments concerning her expert witness. 

Accordingly, the district court’s partial summary judgment order is 

REVERSED in part and AFFIRMED in part, and the case is REMANDED.

I. BACKGROUND

Megan Winfrey (“Megan”) was convicted of capital murder but her 

conviction was overturned on appeal after six years imprisonment. Winfrey v. 

Texas, 393 S.W.3d 763, 774 (Tex. Crim. App. 2013) (“Winfrey I”). Lenard 

Johnson, the Appellant, is a former deputy at the San Jacinto County Sheriff’s 

Office who drafted and signed the arrest warrants for Megan, her father 

Richard Winfrey, Sr. (“Senior”), and her brother Richard Winfrey, Jr. 

(“Junior”). He also took witness testimony from David Campbell, a jailhouse 

informant who implicated the Winfreys in the murder of school janitor Murray 

Wayne Burr. The facts underlying this appeal need not be repeated as they 

have been set forth in Junior’s case. See Winfrey v. Rogers, 901 F.3d 483, 488–

90 (5th Cir. 2018) (“Winfrey II”).

This appeal arises from the district court’s opinion disposing of both 

siblings’ cases. Megan’s Fourth Amendment claim is nearly identical to that 

brought by Junior, with a few factual distinctions. First, while Junior was 

tried and acquitted after sitting in jail for two years, Megan was convicted by 

a jury and exonerated by the Texas Court of Criminal Appeals. Second, 

pertinent to her arrest warrant, deputies collected additional statements about 

Megan from teachers, including a statement by a teacher that Megan walked 

up to Burr in the school hallway, put her arm in his, and asked him when he 

was going to spend some money on her and take her out; a statement that after 

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a fight with him Megan said she wished someone should “beat the shit” out of 

Burr; and another teacher’s statement that Megan had “assaulted her in some 

way” and threatened her. Johnson contends these statements add support to 

his urging of probable cause to arrest her. Third, the arrest warrant

mistakenly indicated that the bloodhound drop-trail scent used Junior’s scent, 

when it in fact used the scent of Winfrey’s boyfriend Chris Hammond. But 

there was no such error as to the dogs’ alert on Megan’s scent.

Winfrey was arrested on or about March 15, 2007 and detained pending 

trial. She was reindicted for capital murder and conspiracy to commit murder 

on December 13, 2007, tried in October 2008, convicted on October 9, 2008, and 

sentenced to life imprisonment. On February 27, 2013, the Texas Court of 

Criminal Appeals found the evidence legally insufficient to support Winfrey’s

conviction and rendered a judgment of acquittal for each offense. Winfrey I, 

393 S.W.3d at 774.

Winfrey filed a § 1983 lawsuit, originally alleging that Johnson, Rogers, 

San Jacinto County’s then-Sheriff Clark, and Pikett violated her constitutional 

rights by using fabricated evidence in connection with the investigation, arrest 

and prosecution. She also pursued state law malicious prosecution claims

against Johnson, Rogers, and Pikett. After a collection of dismissals, 

substitutions, settlements, and summary judgments, including dismissals 

under the Texas Tort Claims Act (“TTCA”) or due to immunity, only Johnson 

remains as a defendant, and the district court granted summary judgment for 

Johnson on all claims. At a hearing about expert reports, the district court 

also sua sponte decided against allowing one of Winfrey’s experts, 

Dr. Marshall, from testifying.

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Winfrey presents four arguments on appeal. First, she argues that her

Fourth Amendment claim that Johnson knowingly or recklessly made false 

statements in his arrest-warrant affidavit should go to trial. Second, she 

asserts a Fourteenth Amendment claim of malicious prosecution under 

procedural due process. Third, she presents a due process claim that Johnson 

fabricated Campbell’s trial testimony, violating her right to a fair trial. 

Fourth, Winfrey argues that the district court abused its discretion in 

excluding her damages expert from testifying at trial.

II. STANDARD OF REVIEW

This court reviews the district court's grant of summary judgment de 

novo. Brewer v. Hayne, 860 F.3d 819, 822 (5th Cir. 2017). Summary 

judgment is appropriate when the movant is entitled to judgment as a matter 

of law and there is no genuine dispute of material fact. Id. “To survive 

summary judgment, the non-movant must supply evidence ‘such that a 

reasonable jury could return a verdict for the nonmoving party.’” Id. 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 

(1986)). The court must draw all reasonable inferences in the non-movant's 

favor and view the evidence in the light most favorable to the non-movant. Id.

“A qualified immunity defense alters the usual summary judgment 

burden of proof . . . Once an official pleads the defense, the burden then shifts 

to the plaintiff, who must rebut the defense by establishing a genuine fact issue 

as to whether the official’s allegedly wrongful conduct violated clearly 

established law. The plaintiff bears the burden of negating qualified 

immunity, but all inferences are drawn in his favor.” Brown v. Callahan, 

623 F.3d 249, 253 (5th Cir. 2010) (quoting Michalik v. Hermann, 422 F.3d 252, 

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262 (5th Cir.2005)). Finally, this court reviews the district court’s probablecause determination de novo. United States v. Lopez-Moreno, 420 F.3d 420, 

430 (5th Cir. 2005).

III. DISCUSSION

1. Fourth Amendment

Megan argues that Johnson’s conduct violated her Fourth Amendment 

right to be free from arrest without a good-faith showing of probable cause and 

his duty not to knowingly, intentionally, or recklessly make false statements 

in an arrest warrant affidavit. The substance of her claims is that Johnson’s 

arrest-warrant affidavit contained material misstatements and, even if 

corrected, lacked probable cause. Megan relies on this court’s decision in 

Winfrey II. 1 Johnson contends that he is entitled to qualified immunity, 

Megan never actually pled a Fourth Amendment violation arising from the 

arrest warrant, the statute of limitations has run on Megan’s claim, and 

independent intermediaries blocked any causal chain running from the arrest 

warrant to Megan’s incarceration.2

 1 Because of the timing of their briefs, the parties cite Winfrey v. Rogers, 882 F.3d 187 

(5th Cir. 2018), but that decision was withdrawn and superseded on denial of rehearing by 

Winfrey v. Rogers, 901 F.3d 483 (5th Cir. 2018). The opinions are identical in substance and 

outcome except for the analysis of qualified immunity.

2 Megan’s lawsuit is timely. Since the Winfrey II panel concluded that Megan’s

§ 1983 claim more closely resembles the tort of malicious prosecution, focused as it is on the 

wrongful institution of legal process, see Winfrey II, 901 F.3d at 492–93, the statute of 

limitations on that claim did not begin to run until “the prosecution ends in the plaintiff’s 

favor.” Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc). In Megan’s case, that 

would be February 27, 2013, the date her conviction was overturned.

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In Winfrey II, the panel analyzed the affidavits for Megan and Senior in 

making its legal determinations. Winfrey II, 901 F.3d at 489 n.1. It held 

that the affidavits contained material misrepresentations and omissions,3 and 

that a “corrected” affidavit would not have satisfied the probable-cause 

requirement. Id. at 496. Thus, the panel vacated the district court’s 

judgment and remanded for trial “on the factual issue of whether Johnson 

acted recklessly, knowingly, or intentionally by omitting and misrepresenting 

material facts in his affidavit when seeking an arrest warrant for Junior.” Id.

at 488. Because the panel in Winfrey II rejected most of the same objections 

Johnson now raises, Johnson is precluded from relitigating these issues. 

Johnson offers only two new reasons why this panel is not bound by a panel 

decision interpreting the sufficiency of the same warrant, but those, too, are

unavailing.

First, Johnson contends that additional facts here support probable 

cause as to Megan. He argues that the mistaken drop-trail scent – which 

identified the scent as Junior’s when it was in fact that of Megan’s boyfriend –

was not a mistake as to Megan. But the irrelevance of this misstatement does 

not add probable cause against Megan. Additionally, he argues that the 

warrant affidavit included statements from teachers about Megan, her 

 3 The court found that “Junior provides evidence that Johnson made false statements 

in his affidavit by (1) omitting Campbell’s statements that were contradicted by the physical 

evidence; (2) misstating that Pikett’s drop-trail from Burr’s house to the Winfrey house used 

Junior’s scent, when the drop-trail actually used Hammond’s scent; and (3) omitting 

Campbell’s inconsistencies between his statements, that is, between Campbell’s first 

statement—which was related in the affidavit—that said that Megan and Junior helped 

Senior to murder Burr and Campbell s inconsistent later statement that Senior’s cousin was 

the accomplice.” Winfrey II, 901 F.3d at 494.

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relationship with Burr, and a possible propensity for violence. But, as the 

district court noted, these statements, eyebrow-raising though they might be,

do not link Megan to murder. When weighed against the misstatements 

detailed in fn. 2 above, these factual distinctions do not detract from the

Winfrey II panel’s conclusion that “a reasonable magistrate would not have 

issued a warrant on the basis of this corrected affidavit, because the addition 

of the omitted material facts would have dissuaded the judge from issuing the 

warrant.” Id. at 496.

Second, Johnson contends that the independent intermediary doctrine 

applies here because, unlike in Winfrey II, and indeed noted by that panel, 

there was an additional proceeding before a state judge which Johnson argues 

acted as an independent intermediary. Under the independent-intermediary 

doctrine, “’if facts supporting an arrest are placed before an independent 

intermediary such as a magistrate or grand jury, the intermediary's decision 

breaks the chain of causation’ for the Fourth Amendment violation.” 

Jennings v. Patton, 644 F.3d 297, 300–01 (5th Cir. 2011) (quoting Cuadra v. 

Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010)). But this doctrine 

only applies “where all the facts are presented to the grand jury, or other 

independent intermediary where the malicious motive of the law enforcement 

officials does not lead them to withhold any relevant information from the 

independent intermediary.” Cuadra, 626 F.3d at 813. The panel in Winfrey 

II rejected Johnson’s independent-intermediary argument as to the grand jury 

because it was “unclear” whether Johnson presented all the facts to the grand 

jury. Winfrey II, 901 F.3d at 497.

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Johnson attempts to distinguish Winfrey II because here, unlike there, a 

state judge also determined there was probable cause to arrest Megan. That 

is a fair point because the Winfrey II panel itself recognized the distinction and 

distinguished Junior’s case – where “[n]one of these hearings addressed . . . 

whether there was probable cause to arrest Junior” – from Megan’s case, where 

there was at least one hearing where the judge “determined that there was 

probable cause to arrest Megan.” Id. But the exception to the independentintermediary doctrine applies with equal force because, under Winfrey II, it is 

Johnson's burden to prove the omitted material information was presented to 

the judge. He has not done so. And again, since the panel in Winfrey II

analyzed the very same affidavit, this court is bound by its rejection of the 

independent-intermediary doctrine. After Winfrey II, we have no leeway to 

conclude otherwise.

The only remaining question is the extent of Megan’s potential damages. 

Based on Winfrey II, the misstatements in Johnson’s arrest-warrant affidavit 

meant it lacked probable cause. The Supreme Court has made clear that 

pretrial seizures, even if they follow legal process, can violate the Fourth 

Amendment if the initial seizure occurred without probable cause and nothing 

later remedied the lack of probable cause. See Manuel v. City of Joliet, 

137 S. Ct. at 918–19 (“If the complaint is that a form of legal process resulted 

in pretrial detention unsupported by probable cause, then the right allegedly 

infringed lies in the Fourth Amendment.”). That is the case here – the 

material misstatements and omissions in the arrest-warrant affidavit led to 

Winfrey’s unlawful arrest and pretrial detainment.

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But that is not the end of this story, because Megan was reindicted and 

tried on evidence obtained after further investigation of her case. Megan does 

not contradict the record evidence that Deputy Johnson’s involvement in her 

investigation ceased following the issuance of the arrest warrant in February 

2007, at which point the investigation was taken over by the Texas Rangers

and the District Attorney’s investigator, James Kirk. The further 

investigation included follow-up interviews with Campbell and other 

witnesses. At trial, new and potentially incriminating testimony about an 

alibi attempt and evidence tampering were offered by her ex-husband 

Hammond and her boyfriend at the time of the killing, Jason King. See 

Winfrey I, 393 S.W.3d at 766. Consequently, at the time of reindictment, the 

initial lack of probable cause ceased being the cause of Winfrey’s detention and 

damages ceased accruing from Johnson’s Fourth Amendment violation.

Additionally, although the Texas Court of Criminal Appeals ultimately 

reversed Winfrey’s conviction, that court’s painstaking review of the totality of 

the circumstantial evidence underlying her conviction undermines Megan’s 

argument that the initial lack of probable cause supporting her arrest persisted 

through reindictment, trial, and incarceration, and continued to taint the case 

against her. In concluding that the evidence was insufficient to prove 

Megan’s guilt beyond a reasonable doubt, the court nowhere suggested that 

there was no probable cause to indict or try her for murder. In fact, the 

majority found that the evidence did indeed raise a suspicion of her guilt. The 

court’s analysis further supports the conclusion that the initial lack of probable 

cause ceased with Megan’s reindictment and so did the damages.

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2. Fourteenth Amendment

In addition to her Fourth Amendment claims, Megan presses two claims 

under the Fourteenth Amendment: a malicious prosecution claim and a claim

resulting from the Johnson’s alleged use of fabricated evidence at trial. The

malicious prosecution argument fails because Megan has failed to show that 

Johnson violated clearly established law. The fabrication of evidence 

argument fails because no reasonable jury could conclude on the facts before 

us that Johnson fabricated evidence.

a. Malicious Prosecution

Megan argues that because her liberty was constrained beyond her

initial arrest, and because Texas law provides an insufficient state tort law 

remedy, she may press a § 1983 federal malicious prosecution claim under 

procedural due process. She acknowledges, however, that the Supreme Court 

did not approve a substantive due process claim arising from malicious 

prosecution, Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807 (1994), and no 

subsequent decision of that Court or this court has rendered such a claim 

cognizable, much less “clearly established.” See, e.g., Castellano v. Fragozo, 

352 F.3d 939 (5th Cir. 2003) (en banc). Even if this court accepted Megan’s 

invitation to break new legal ground, which we do not, Johnson would be 

entitled to qualified immunity. The district court’s dismissal of the malicious 

prosecution claim was correct.

b. Fabrication of Evidence

Megan’s second Fourteenth Amendment claim concerns Johnson’s 

interaction with jailhouse informant David Campbell. Megan contends that 

a reasonable jury could decide Johnson fabricated Campbell’s testimony 

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because Campbell’s pre-arrest interviews yielded conflicting facts at odds with 

the forensic evidence; Campbell himself believed that Johnson was trying to 

“stage” something against Megan; and Campbell testified to his suspicions at 

trial. These facts do not support a claim of fabricated evidence.

All of the Supreme Court and other cases on which Megan relies deal 

with manufactured evidence or perjured witnesses. In Mooney, for example, 

the court found a due process violation where there was a “deliberate deception 

of court and jury by the presentation of testimony known to be perjured” by 

prosecutors. Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 342 (1935); 

see also Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177 (1942). Brown v. 

Mississippi, 297 U.S. 278, 286, 56 S. Ct. 461, 465 (1936) involved the coercion 

of confessions by use of physical violence. Napue v. People of State of Ill., 

360 U.S. 264, 270, 79 S. Ct. 1173, 1177 (1959) involved the use of false 

testimony by a witness to curry favor with a prosecutor who might provide 

favors to the witness. In Miller v. Pate, 386 U.S. 1, 6, 87 S. Ct. 785, 788 

(1967), “[t]he prosecution deliberately misrepresented the truth” by “consistent 

and repeated misrepresentation” that shorts stained with paint were actually 

stained with blood. The lone precedential Fifth Circuit case Megan cites, 

Boyd v. Driver, 579 F.3d 515 (5th Cir. 2009) (per curiam), involved the claim 

that prison employees gave perjured testimony at a criminal trial and 

destroyed and tampered with video evidence. These cases all involve a 

motivated person who undertook to create or destroy evidence presented at 

trial in support of convictions.

The facts of this case are quite different. Johnson took statements from 

Campbell on two occasions before he swore out the warrant affidavit. Megan 

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has no basis for asserting that Johnson had any involvement in Campbell’s 

testimony at trial; his connection to the case terminated with her arrest and 

Johnson did not even testify at her trial. The prosecutors alone were 

responsible for Campbell’s trial testimony. Moreover, Campbell testified

according to his own free will, never admitted any falsehoods in his trial 

testimony, and indeed truthfully related his own misgivings about any 

improper influence Johnson may have been asserting. Thus, Megan offers no 

evidence that Johnson inappropriately influenced Campbell’s testimony. 

According to Megan, the most damning piece of evidence is Campbell’s 

suggestion that Johnson was “trying to make a story,” but this opinion

criticizes Johnson’s conduct prior to the arrest, in Johnson’s first interview 

with Campbell, and there is no indication that Johnson influenced Campbell’s

later testimony at trial. Additionally, the mere fact that Campbell presented 

one of the two versions that he had previously related regarding Senior’s story

– that Megan and Junior, not the cousins, were present with Senior in the 

house when Burr was murdered – would not allow a reasonable jury to 

conclude that Johnson fabricated Campbell’s testimony. There is thus no 

genuine issue of material fact supporting Johnson’s fabrication of evidence.

3. Exclusion of Damages Expert

Winfrey's final claim is that the district court abused its discretion by 

sua sponte excluding her damages expert in violation of the Federal Rules of 

Evidence. Johnson asserts that because none of the orders from which Megan 

has appealed involved the expert, and since this case did not go to trial, the 

district court’s statements were merely an “interlocutory statement of opinion.” 

This court is inclined to agree. Megan’s arguments are largely a 

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disagreement with the district court about how to apply federal evidentiary

rules. Moreover, the district court has wide discretion in such cases: “with 

respect to expert testimony offered in the summary judgment context, the trial 

court has broad discretion to rule on the admissibility of the expert’s evidence 

and its ruling must be sustained unless manifestly erroneous.” Hathaway v. 

Bazany, 507 F.3d 312, 317 (5th Cir. 2007) (citation and internal quotation 

marks omitted). In any event, there is no formal order to review, and based 

on this opinion, any prognostication by this court on expert evidence that 

Megan may offer in the future is premature.

CONCLUSION

The district court’s judgment is REVERSED as to the Fourth 

Amendment claim, AFFIRMED as to the Fourteenth Amendment claims, and 

the case is REMANDED for further proceedings consistent herewith.

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