IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

ERIC L. ELLIS, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-265-B-BN 

 § 

CITY OF IRVING, § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Eric L. Ellis, a resident of Bossier City, Louisiana, proceeding pro se, 

alleges, in general, that Defendant City of Irving and its police department violated 

his Fourth Amendment rights through actions taken by Irving police officers on 

August 4, 2021. See, e.g., Dkt. No. 22. Ellis initiated this lawsuit in the Western 

District of Louisiana, which granted his motion for leave to proceed in forma pauperis

and issued summonses. See Dkt. Nos. 1-6. Ellis’s lawsuit was transferred to this 

judicial district. See Dkt. Nos. 22, 27, 32. And United States District Judge Jane J. 

Boyle referred it to the undersigned United States magistrate judge for screening 

under 28 U.S.C. § 636(b) and a standing order of reference. 

On February 8, 2022, the undersigned entered findings of fact and conclusions 

of law recommending that the Court dismiss Ellis’s amended complaint under 28 

U.S.C. § 1915(e)(2)(B)(ii) and deny his motions for leave to file a second amended 

complaint and to enter default [Dkt. No. 38] (the FCR). While the FCR further 

explained to Ellis that “the time to file objections to the FCR allows [him] an 

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opportunity to explain how he would cure the deficiencies set out in the FCR and thus 

show the Court that his case should not be dismissed with prejudice at this time and 

that the Court should instead grant him leave to file another amended complaint,” 

id. at 13-14 (citing Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) 

(per curiam)), Ellis did not file objections. And, on February 28, 2022, Judge Boyle 

accepted the FCR. See Dkt. No. 42. 

The same day, Ellis moved for leave to file an amended complaint and filed his 

proposed second amended complaint. See Dkt. Nos. 43, 44. 

The proposed second amended complaint repleads claims against the City and 

its police department under the Fourth Amendment and the Administrative 

Procedures Act based on the same facts. Compare Dkt. No. 44, with Dkt. No. 36. 

As the Court previously held in this case, Ellis “may not bring a claim under 

the APA against state actors.” Dkt. No. 38 at 12 (citing Scott v. Stephens, No. 3:14-cv3304-N-BH, 2015 WL 4086919, at *3 (N.D. Tex. July 2, 2015) (“Regardless of whether 

Petitioner seeks relief under the APA, FOIA, or both, these statutes apply only to 

federal agencies. Neither statute provides a basis for the relief that he seeks against 

state officials, so he fails to state a claim.” (citations omitted))). 

The Court also already warned Ellis that, “insofar as [he] intends to allege a 

claim against the Irving police department, ... a plaintiff may not bring a civil action 

against a servient political agency or department unless that agency or department 

enjoys a separate and distinct legal existence.” Id. at 10 at 12 (citing Darby v. 

Pasadena Police Dep’t, 939 F.2d 311, 313-14 (5th Cir. 1991)). 

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Ellis still has not presented facts in the current proposed amendment that are 

enough to plausibly allege municipal liability. Compare Dkt. No. 36 at 3-5, with, e.g.,

Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (“To proceed beyond 

the pleading stage, a complaint’s ‘description of a policy or custom and its relationship 

to the underlying constitutional violation ... cannot be conclusory; it must contain 

specific facts.’” (quoting Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 

(5th Cir. 1997); footnote omitted)); Balle v. Nueces Cnty., Tex., 952 F.3d 552, 559 (5th 

Cir. 2017) (“[P]leadings are sufficient when they make specific factual allegations 

that allow a court to reasonably infer that a policy or practice exists and that the 

alleged policy or practice was the moving force behind municipal employees’ [alleged 

constitutional violations].” (citing Colle v. Brazos Cnty., 981 F.2d 237, 245 (5th Cir. 

1993))); Longoria Next Friend of M.L. v. San Benito Indep. Consol. Sch. Dist., 942 

F.3d 258, 271 (5th Cir. 2019) (“Because the ‘specific identity of the policymaker is a 

legal question that need not be pled,’ plaintiffs can state a claim for municipal liability 

as long as they plead sufficient facts to allow the court to reasonably infer that the 

[policymaker] either adopted a policy that caused [their] injury or delegated to a 

subordinate officer the authority to adopt such a policy. In other words, plaintiffs 

must plead facts that sufficiently connect the [actual] policymaker ... to the allegedly 

unconstitutional policy.” (citing Groden v. City of Dallas, Tex., 826 F.3d 280, 284, 286 

(5th Cir. 2016))); Anokwuru v. City of Hous., 990 F.3d 956, 965 (5th Cir. 2021) (“Even 

resolving all questions of fact and any ambiguity in controlling law in [the plaintiff’s] 

favor, ‘[i]n order for “liability to attach based on an ‘inadequate training’ claim, a 

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plaintiff must allege with specificity how a particular training program is defective.”’” 

(quoting Zarnow v. City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010) (quoting, 

in turn, Roberts v. City of Shreveport, 397 F.3d at 287, 293 (5th Cir. 2005))); citation 

omitted); see generally Dobbins v. City of Dall., No. 3:20-cv-1727-K, 2021 WL 4395817 

(N.D. Tex. June 24, 2021), rec. accepted, 2021 WL 3781927 (N.D. Tex. Aug. 25, 2021). 

And, as the Court previously held as to Ellis’s claims against the City, he must 

plausibly allege both a constitutional violation and municipal liability: “At the 

pleading stage, a plaintiff alleging such a claim [against a municipality] ‘has two 

burdens: to [plausibly allege] (1) that a constitutional violation occurred and (2) that 

a municipal policy was the moving force behind the violation.’” Dkt. No. 38 at 8-9 

(quoting Sanchez v. Young Cnty., Tex., 956 F.3d 785, 791 (5th Cir. 2020); citing 

Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 483 (5th Cir. 2021) (rejecting the 

argument that a district court errs by dismissing such a claim without first analyzing 

the underlying constitutional violation)); see also Poullard v. Gateway Buick GMC 

LLC, No. 3:20-cv-2439-B, 2021 WL 2376721, at *8 (N.D. Tex. June 10, 2021). 

For these reasons, the Court should deny the motion for leave to amend (to file 

a second amended complaint) and now dismiss this case with prejudice. See, e.g., Stem 

v. Gomez, 813 F.3d 205, 215-16 (5th Cir. 2016) (“When an amended complaint would 

still ‘fail to survive a Rule 12(b)(6) motion,’ it is not an abuse of discretion to deny the 

motion’” for leave to amend. (citation omitted)). 

Recommendation

The Court should deny the motion for leave to file a second amended complaint 

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[Dkt. Nos. 43, 44] and dismiss this case with prejudice. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: March 1, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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