1District Judge for the Southern District of Texas, sitting

by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-8354.

Moses MACIAS, Jr., Plaintiff-Appellant,

v.

RAUL A. (UNKNOWN), BADGE NO. 153, and Richard Gleinser, Captain,

Defendants-Appellees.

June 16, 1994.

Appeal from the United States District Court for the Western

Division of Texas.

Before WISDOM and BARKSDALE, Circuit Judges, HARMON,1 District

Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal turns primarily on the extent to which we are

required to go beyond the allegations for an in forma pauperis, pro

se complaint, and speculate as to the facts that the plaintiff

might allege if given yet another opportunity to assert a

nonfrivolous claim. This civil rights action by Moses Macias, Jr.,

arises out of two traffic citations that he received, and was

dismissed pursuant to 28 U.S.C. § 1915(d). Because we hold that

the district court did not abuse its discretion in so doing, we

AFFIRM.

I.

Proceeding pro se and in forma pauperis, Macias filed his

complaint in March 1993, apparently attempting to state claims

arising from an incident that occurred in 1992, in Bexar County,
2

Texas, when he was stopped by a San Antonio police officer because

his automobile tail light was not operating, and given one or more

traffic tickets. As set forth below, neither Macias's description

of the events that transpired then, nor his claim for relief, is

clear. Of course, in determining whether the district court abused

its discretion in dismissing the complaint, we construe those

allegations liberally.

Macias's complaint, filed against (1) San Antonio officer Raul

A. (Unknown), Badge No. 153, (2) Police Captain Richard Gleinser,

and (3) Municipal Courts, San Antonio, Texas, alleged that he was

stopped by the officer because the right tail light lens of his car

was out; that he was unaware of the defective light until the

stop; and that liability insurance is not admissible, under the

Federal Rules of Evidence, as to whether that person acted

negligently. As relief, Macias requested that the decision of the

defendant be reversed; that he recover the cost of the action;

and that the court grant such other relief as it deemed

appropriate.

After his complaint was filed, Macias completed a

questionnaire provided by the magistrate judge to clarify his

allegations. In it, Macias was asked to "describe in detail the

facts and circumstances which substantiate the allegations" in the

complaint. Macias responded with the arguments that a person's

lack of knowledge is a defense to prosecution; that evidence of

liability insurance is not admissible under the Federal Rules of

Evidence; and that liability insurance is unconstitutional.
 

2Macias also cited a case, apparently as authority for his

claim for damages. That case, Sabich v. Outboard Marine Corp.,

60 Cal.App.3d 591, 131 Cal.Rptr. 703 (1976), is a products

liability action concerning all-terrain vehicles. 

3

In response to the request to state "exactly what it is that

[Raul A.] either did or failed to do that you believe gives you the

right to recover judgment against him," Macias stated: "First of

all, Moses Macias, Jr. was [ ]unaware of any wrongdoing, and it is

a defense to prosecution. See 8.02, 8.03 Penal Code. Also,

Liability insurance is not a federal statute." And, in response to

the request to state what Captain Richard Gleinser did or did not

do, Macias stated:

Municipal Court issued a warrant for my arrest for two

tickets, improper lights tail lamp lens, and no valid

liability insurance. Since Captain Richard Gleinser signed

the warrant/capias pro fine Notice, I assume he should be

served or the Clerk of the Municipal Court, whichever is

proper.

When requested to describe his injuries, Macias stated:

Humiliation, Embarrassment, just because the lens was out. I,

Moses Macias, Jr., was ordered around to stand in different

positions, was also search[ed] outside the car without any

probable cause. Search and seizure laws are very strict. An

officer needs a warrant and the Warrant has to be specific on

where to search and the officers needs probable cause, an

affidavit made by oath, by a witness describing exactly where

to search.2

Macias stated further that the damages he sought were the result of

a policy, practice or custom of Bexar County, which he described as

"common law". When asked about a San Antonio policy, practice or

custom, Macias stated that "state law and federal law state that

there should be no unnecessary force, or excessive force, section

9.51. There should be no coercion".
4

The magistrate judge recommended dismissal pursuant to §

1915(d), concluding that the two individual defendants were

entitled to qualified immunity, and that Macias had failed to

identify or make factual allegations of any policy, practice, or

custom by either San Antonio or Bexar County. The magistrate judge

concluded also that Macias named the wrong defendant in his

assertion of the unconstitutionality of the Texas requirement of

proof of liability insurance, and that Texas courts had upheld its

constitutionality.

Macias filed objections to the magistrate judge's report and

recommendation. Concerning the alleged search, he stated that

the officer violated statutory and constitutional rights by

searching Moses Macias, Jr. without any probable cause. An

officer needs a warrant and the warrant has to be specific, on

where to search and the officer needs probable cause, an

affidavit made by oath, by a witness describing exactly where

to search.

But, after de novo review, the district court accepted the

recommendation, and dismissed the complaint without prejudice.

II.

An IFP complaint may be dismissed as frivolous if it lacks an

arguable basis in law or fact. 28 U.S.C. § 1915(d); Denton v.

Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d

340 (1992). Section 1915(d) "accords judges not only the authority

to dismiss a claim based on an indisputably meritless legal theory,

but also the unusual power to pierce the veil of the complaint's

factual allegations and dismiss those claims whose factual

contentions are clearly baseless." Neitzke v. Williams, 490 U.S.

319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). And, in
5

determining whether the complaint is frivolous, the district court

is given broad discretion. Thompson v. Patteson, 985 F.2d 202, 205

(5th Cir.1993). We review such dismissals only for abuse of that

discretion. Denton, --- U.S. at ----, 112 S.Ct. at 1734.

 Although we construe IFP complaints liberally, particularly

in the context of a § 1915(d) dismissal, we are still bound by the

allegations in the complaint, and are not free to speculate that

the plaintiff "might" be able to state a claim if given yet another

opportunity to add more facts to the complaint. In an effort to

ensure that IFP claims are developed adequately, our circuit has

encouraged district courts to hold hearings or provide

questionnaires to IFP plaintiffs. Parker v. Carpenter, 978 F.2d

190, 191 & n. 2 (5th Cir.1992). This opportunity to expand the

claims and underlying facts (with guidance from the district court

through questioning at a hearing or a questionnaire tailored to the

plaintiff's claims) limits our license to engage in speculation as

to the existence of additional facts. For example, if an IFP

plaintiff, in "amending" his complaint through a response to a

questionnaire, alleges in that response that he received inadequate

medical care while incarcerated, we should not reverse the

dismissal of the complaint on the basis that the plaintiff could

possibly add facts that would demonstrate that he was treated with

deliberate indifference in the medical care that he received. As

another example, if an IFP prisoner asserts in the questionnaire

response that he has been denied recreation time, we should not

reverse dismissal on the ground that he might also be able to
 

3If he has previously asserted any other issues, they are

deemed abandoned on appeal. E.g., Beasley v. McCotter, 798 F.2d

116, 118 (5th Cir.1986), cert. denied, 479 U.S. 1039, 107 S.Ct.

897, 93 L.Ed.2d 848 (1987). 

6

assert a claim that the denial was in retaliation for his having

filed a grievance.

Therefore, in considering this appeal, we keep in mind that

Macias amended his complaint by his responses to written questions

from the magistrate judge, questions that were specifically

tailored to elicit relevant facts that might support his claims.

And, Macias had an opportunity further to clarify his claims by his

objections to the magistrate judge's report and recommendation.

(But, as discussed infra, clarifying his claims in his objections

does not constitute amending his complaint.) Even construing these

matters liberally, as we must, they cannot be interpreted as

raising anything other than a frivolous claim.

Macias's brief on appeal (which is a copy of his two-page

objection to the report and recommendation) is, like his complaint,

vague and unclear. Read most favorably to him, he raises three

issues: (1) the propriety of qualified immunity in the context of

a Fourth Amendment claim; (2) the constitutionality of the Texas

statute requiring proof of automobile liability insurance; and (3)

the viability of his suit against the San Antonio Police

Department.3

A.

Macias maintains that the police officers cannot assert

qualified immunity as to the claimed illegal search. "Whether a
 

4In his objection to the magistrate judge's report and

recommendation, as well as in his identical brief on appeal,

Macias states: "Sure[,] Officer Raul A. was justified in

stopping [me]...." 

7

government official is entitled to qualified immunity generally

turns on the objective reasonableness of the action assessed in

light of the legal rules that were clearly established at the time

it was taken." White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992)

(citations and internal quotations omitted). "A necessary

concomitant to the determination of whether the constitutional

right asserted by a plaintiff is "clearly established' at the time

the defendant acted is the determination of whether the plaintiff

has asserted a violation of a constitutional right at all."

Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114

L.Ed.2d 277 (1991). We have interpreted Siegert as first requiring

the determination whether the plaintiff has stated a constitutional

violation before reaching the qualified immunity issue. White, 959

F.2d at 545 n. 4.

Macias concedes that the officer was justified in making the

traffic stop, but apparently objects to a search that allegedly

took place in conjunction with the unobjectionable stop.4

Significantly, as described above, the search was not mentioned in

either his complaint or his response to the magistrate judge's

request that he state the facts supporting his claim. Further,

Macias did not attempt to describe the nature of the search in

either the objections to the report and recommendation or his
 

5Even if Macias had offered additional facts in his

objections, those facts would not constitute an amendment to his

complaint or otherwise remedy the flaws discussed herein. Macias

was provided with ample opportunity to explain the factual basis

of his claims through the questionnaire. Section 1915(d) does

not require that these opportunities must repeatedly be made

available. See Graves v. Hampton, 1 F.3d 315, 318 n. 12 (5th

Cir.1993) (distinguishing Rule 12(b) dismissal which generally

requires opportunity to amend). 

 

6We note that, in light of the ambiguities contained in the

complaint, as amended, we cannot say for certain that Macias was

in fact requested to present proof of liability insurance or that

8

appeal brief.5 The only reference in any of the papers that Macias

has filed that could even possibly be interpreted as a description

of that search is one line in the questionnaire in his discussion

of his damages, where he stated that he "was ordered around to

stand in different positions, was also search[ed] outside the car

without any probable cause." If Macias ever attempted to state a

claim objecting to this "search", this is all the information that

he included about it.

It is well-established that, in a valid traffic stop (as

noted, Macias concedes its validity), an officer may request the

offender to exit the vehicle, Pennsylvania v. Mimms, 434 U.S. 106,

107, 98 S.Ct. 330, 331, 54 L.Ed.2d 331 (1977), and "request a

driver's license, insurance papers, vehicle registration, run a

computer check thereon, and issue a citation." United States v.

Shabazz, 993 F.2d 431, 437 (5th Cir.1993). Therefore, it is clear

that Macias has failed to allege a constitutional violation with

respect to the stop of his vehicle, the possible request for proof

of liability insurance, or the possible order that he exit his

vehicle.6
he was ordered to leave the vehicle. In any event, if Macias

attempted to state a non-frivolous claim on these points, he has

not done so. 

9

The only question remaining, then, is whether Macias has

stated a constitutional violation with his bare reference to an

improper "search". Again, his complaint did not mention the

search; neither did he address it in response to the magistrate

judge's inquiry as to the facts supporting his claim. Therefore,

based solely on these two items, we could conclude that Macias has

not even attempted to assert any Fourth Amendment claim.

It was only in the context of describing his damages that, in

the questionnaire, Macias even alluded to the alleged "search" and

then provided absolutely no factual details. The bare allegation

of a search is conclusory and does not support an action under 42

U.S.C. § 1983. See Wilson v. Budney, 976 F.2d 957, 958 (5th

Cir.1992). Indeed, it is only because we are construing Macias's

pleadings liberally that we even consider whether this issue has

been raised in the pleadings. In light of the various

opportunities that Macias had to illuminate his claim that he was

"searched", and his failure to provide any more than the bare

allegation that a "search" occurred, we conclude that he has not

asserted a constitutional violation. Accordingly, the district

court did not abuse its discretion in dismissing this claim.

B.

Macias next argues that the Texas statute requiring proof of

automobile liability insurance is unconstitutional because no

federal law or constitutional provision addresses the issue and
10

because that statute restricts his freedom to purchase. See

Tex.Rev.Civ.Stat. art. 6701h (West Supp.1993). Needless to say,

the authority of a State to create and enforce its laws and

regulations under its police power is well-established. See, e.g.,

Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.

303 (1926) (discussing scope of police power in context of zoning

ordinance); Texas Learning Technology Group v. Commissioner, 958

F.2d 122, 124 (5th Cir.1992) (power to tax, power of eminent domain

and police power are generally acknowledged sovereign powers). The

Texas courts have specifically upheld the insurance statute as

being a proper exercise of that power. Riggle v. State, 778 S.W.2d

127, 129-30 (Tex.App.1989).

As for the assertion concerning Macias's right to choose,

"[t]here exists no constitutional protection of any freedom of

choice regarding the decision to purchase or not [to] purchase

automobile liability insurance." Hardin v. Texas, 983 F.2d 1064

(5th Cir.1993) (unpublished). This claim clearly lacks an arguable

basis in law; the district court did not abuse its discretion in

dismissing it.

C.

Macias's brief on appeal can also be read to challenge the

district court's dismissal of his claims against the San Antonio

Police Department. In order to establish liability on the part of

this defendant, Macias was required to "demonstrate a policy or

custom which caused the constitutional deprivation." Colle v.

Brazos County, 981 F.2d 237, 244 (5th Cir.1993). One that would
 

7In response to the magistrate judge's questionnaire, Macias

said that his damages were the result of a policy, practice or

custom of San Antonio, but identified that policy as a

prohibition against excessive force by state and federal law. 

Such a policy certainly did not cause his alleged constitutional

deprivation. 

11

satisfy this element of proof is a "policy statement, ordinance,

regulation, or decision that is officially adopted and promulgated

by the municipality's lawmaking officers or by an official to whom

the lawmakers have delegated policy-making authority." Webster v.

City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc).

Macias, however, has not identified any;7 his claim against the

City, therefore, has no arguable basis in fact. The district court

did not err in dismissing this claim.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

WISDOM, Circuit Judge, dissenting in part:

I respectfully dissent from part II.A of the majority's

opinion. In this part the Court holds that Macias's Fourth

Amendment claim was frivolous. The majority's primary rationale is

that Macias's factual allegations about the search did not appear

in his original complaint or in his response to the magistrate

judge's request that he state the facts supporting his claim. The

majority acknowledges that Macias complained about the search in

another part of his response to the magistrate's questionnaire, but

discounts his claim because he did not press it on the pages where

the majority expected to find it. The facts Macias pleads, not the
 

1Court's Questionnaire to Plaintiff at 7, Rec. 26. 

 

2Id. at 2, Rec. 21. 

 

3Id. at 7, Rec. 26. 

 

4Id. at 6, Rec. 25. 

 

5Id. at 5, Rec. 24. 

 

6Id. at 4, Rec. 23. 

 

7Id. 

 

8Denton v. Hernandez, 504 U.S. ----, ----, 112 S.Ct. 1728,

1733, 118 L.Ed.2d 340, 350 (1992) (citations omitted). 

 

9The precedential basis of majority's "bare allegation"

jurisprudence is unpersuasive. The majority's assertion that

"[t]he bare allegation of a search is conclusory and does not

support an action under 42 U.S.C. § 1983", supra at 4692, cites

only Wilson v. Budney, 976 F.2d 957 (5th Cir.1992), as supporting

authority. Wilson was a two-paragraph opinion that cited only

Hale v. Harney, 786 F.2d 688 (5th Cir.1986), for the same

proposition. Hale, however, was neither a pro se case nor an in

forma pauperis proceeding, and thus was not subject to the rule

that a plaintiff's allegations must be liberally construed in his

favor. Wilson 's analogy to Hale was ill-considered, an error

the majority compounds today by extending it beyond the

conspiracy context. 

12

page on which he pleads them, should control.

With deference, I disagree with the majority's statement that

Macias made only a "bare allegation" of a search. Macias alleges

that he was searched,1 after a traffic stop,2 without a warrant or

probable cause,3 by an officer he identified by name, badge number,4

and physical description,5 as a result of which he was not arrested6

or charged with any crime.7 These factual allegations are not "

"fanciful,' ... "fantastic,' ... "delusional,' ... irrational or

... wholly incredible...."8 To describe these statements as a

"bare allegation"9 of a search is not, in my opinion, consistent
 

10Pro se complaints "however inartfully pleaded are held to

less stringent standards than formal pleadings drafted by

lawyers". Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66

L.Ed.2d 163 (1980) (internal quotations and citation omitted). 

They must be "liberally construed". Id. at 10, 101 S.Ct. at 176. 

 

11392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We have

repeatedly confirmed the applicability of the Terry analysis to

searches for which the police lack probable cause. See, e.g.,

United States v. Shabazz, 993 F.2d 431, 434-35 (5th Cir.1993); 

United States v. Rideau, 969 F.2d 1572, 1573-74 (5th Cir.1992)

(en banc). 

 

12See, e.g., Timberlake v. Benton, 786 F.Supp. 676

(M.D.Tenn.1992). 

 

13Gartrell v. Gaylor, 981 F.2d 254, 258-59 (5th Cir.1993). 

13

with the Court's duty to construe liberally the pleadings in

Macias's favor.10

The Fourth Amendment forbids unreasonable searches. Because

Macias was never arrested, the police officer's search cannot be

excused as incident to arrest. It must therefore be analyzed under

the framework of Terry v. Ohio.11 If the officer lacked probable

cause or a warrant for the search, he may have violated Macias's

constitutional rights and will be answerable in damages under §

1983 for the violation.12 The Fourth Amendment and Terry provide

the arguable basis in law in which Macias's allegation of a search

grounds itself. Because his complaint states a claim with an

arguable basis in law, and because the facts he pleaded in support

of that claim are not "fanciful" or "delusional", I would hold that

the district court abused its discretion in dismissing Macias's

Fourth Amendment claim as frivolous.13

I respectfully dissent.
14