IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

SAYBREE FILLYAW, ) 

 Plaintiff, ) 

 ) 

vs. ) No. 3:22-CV-1528-G (BH) 

 ) 

CITY POLICE OF CORSICANA, et al., ) 

 Defendants. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

 Based on the relevant filings and applicable law, the plaintiff’s claims against the state 

judges in their official capacities should be DISMISSED WITHOUT PREJUDICE, and his 

remaining claims should be DISMISSED WITH PREJUDICE. 

I. BACKGROUND 

In this civil rights action under 42 U.S.C. §1983, Saybree Fillyaw (Plaintiff) sues the 

Corsicana Police Department (CPD), CPD Officer Neal Baggett (Officer), and Justices of the 

Peace Darrell Waller and Greita Jordan (collectively, Judges). (See doc. 3 at 1-3.)2

Plaintiff claims that the probation officer of a “friend” with whom Plaintiff was in a 

“relationship” relayed to Officer the friend’s complaint that Plaintiff had choked him following a 

disagreement. (Id. at 2-3.) Plaintiff had told her friend—a drug addict with mental health issues—

that their relationship was over, but she did not choke him. (See id.) Officer pulled Plaintiff over 

and arrested her for “family violence” despite her protestations of innocence. (Id. at 3.) Officer 

used unnecessary force by grabbing Plaintiff’s arm, dragging her out of her car by it, slamming 

1

By Special Order No. 3-251, this pro se case has been automatically referred for full case management. 

2

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers 

at the bottom of each filing. 

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her on the car, pushing her back, and handcuffing her too tightly. (Id.; doc. 7 at 8.)3

 As Plaintiff 

was being arrested, her friend recanted his allegations. (doc. 3 at 3.) He explained that he had been 

bribed to falsely accuse Plaintiff and asked Officer not to arrest her, but Officer refused. (Id.) 

Plaintiff’s friend signed a “non-prosecution affidavit.” (Id.) Plaintiff bonded out of jail, and the 

“family violence” charge was dismissed. (Id. at 4.) 

Plaintiff claims Officer fabricated “documents” against her. (doc. 7 at 3.) Judge Waller 

allegedly “misused his power” and issued a protective order against Plaintiff to Officer, Plaintiff’s 

friend, and Plaintiff’s friend’s probation officer, despite evidence that no protective order was 

necessary. (Id.; doc. 3 at 4.) He “deliberately put the wrong address” on the protective order, 

keeping Plaintiff out of her house and later causing her to be arrested. (doc. 3. at 5.) The charges 

for violating the protective order were later dropped. (Id. at 4.) Judge Jordan ordered Plaintiff’s 

eviction based on evidence that she was a “trouble tenant.” (Id.) Plaintiff was unable to appeal the 

eviction order because Judge Jordan issued it “after the appeal date,” leaving Plaintiff homeless. 

(Id. at 4-5.) Plaintiff claims Officer and Judges took these actions because they were upset about 

the charges against Plaintiff being dropped, to satisfy the CPD and other entities that she had 

previously sued, and to retaliate against her for using a “grievance system.” (Id. at 5; doc. 7 at 3.) 

Liberally construing her allegations, Plaintiff appears to sue for false arrest/imprisonment, 

fabrication of evidence, excessive force, retaliation, and issuance of illegal and “fabricated” orders. 

(doc. 3 at 2-5; doc. 7 at 6-8, 13.) She seeks monetary damages. (Id. at 14.) 

II. PRELIMINARY SCREENING 

Because Plaintiff has been permitted to proceed in forma pauperis (IFP), her complaint is 

subject to screening under 28 U.S.C. § 1915(e)(2)(B). That statute provides for sua sponte

3

 Plaintiff did not sustain a physical injury for which she received a diagnosis or treatment. (doc. 7 at 11.) 

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dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if 

it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a 

defendant who is immune from such relief. 

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke 

v. Williams, 490 U.S. 319, 325 (1989). Courts follow the same analysis in determining whether a 

complaint fails to state a claim under § 1915(e)(2)(B)(ii) as when ruling on a motion to dismiss 

under Rule 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam). A complaint 

fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state 

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

Neither mere “labels and conclusions” nor “a formulaic recitation of the elements of a cause of 

action” suffice to state a claim upon which relief may be granted. Id. 

III. SECTION 1983 

 Plaintiff sues under 42 U.S.C. § 1983. To prevail under that statute, the plaintiff must allege 

facts showing that (1) she has been deprived of a right secured by the Constitution and the laws of 

the United States; and (2) the deprivation occurred under state law. See Flagg Bros., Inc. v. Brooks, 

436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005). 

A. CPD 

 Plaintiff sues the CPD. (doc. 3 at 1; doc. 7 at 6.)4

 A plaintiff may not bring a civil rights claim against a servient political agency or 

department unless such agency or department enjoys a separate and distinct legal existence. See 

Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313-14 (5th Cir. 1991). Unless the true political 

entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot 

4

 Plaintiff’s responses to a magistrate judge’s questionnaire constitute an amendment to her pleadings. See Macias v. 

Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). 

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engage in any litigation except in concert with the government itself. Id. at 313. Courts have held 

that city police departments are nonjural entities. See, e.g., White v. Ellis Cnty. Commissioners 

Court, No. 3:19-CV-3017-M-BH, 2021 WL 2446200, at *3 (N.D. Tex. May 19, 2021)(it is wellsettled that the Waxahachie Police Department is not a jural entity subject to suit), rec. adopted, 

2021 WL 2435352 (N.D. Tex. June 15, 2021), appeal filed Mar. 25, 2022; Steele v. Partington, 

Nol 3:16-CV-360-K, 2017 WL 6453338, at *2 (N.D. Tex. Nov. 27, 2017)(Waxahachie Police 

Department is a non-jural entity and cannot be sued under § 1983), rec. adopted, 2017 WL 

6406629 (N.D. Tex. Dec. 14, 2017); Miller v. City of Houston, No. 4:11-CV-429, 2013 WL 

6222539, at *4 (S.D. Tex. Nov. 29, 2013) (“In Texas, county sheriffs and police departments 

generally are not legal entities capable of being sued...”) (citations omitted); Clayton v. Garland 

Police Dept., No. 3:09-CV-2048-D ECF, 2010 WL 2640258, at *1 (N.D. Tex. May 11, 2010), rec 

accepted, 2010 WL 2605258 (N.D. Tex. June 28, 2010) (dismissing suit against Garland Police 

Department because it is not a jural entity); Plemons v. Amos, No. 2:03-CV-421-J, 2006 WL 

1710415, at *7 (N.D. Tex. June 22, 2006) (collecting cases). 

 Plaintiff’s claims against the CPD should be dismissed. 

B. Judges 

 Plaintiff expressly sues Judges in both their official and individual capacities. (doc. 3 at 1; 

doc. 7 at 3-4.) 

1. Official Capacity Claims 

An official capacity claim is another way of pleading an action against the entity of which 

the individual defendant is an agent. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). The State 

of Texas is the real party in interest when the plaintiff seeks relief that would be provided by the 

state. Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996) (citing Holloway v. Walker, 

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765 F.2d 517, 519 (5th Cir.), cert. denied, 474 U.S. 1037 (1985)) (citing Pennhurst State School 

and Hosp. v. Halderman, 465 U.S. 89, 101 & n. 11 (1984)). Any suit against Judges in their official 

capacities or as officers of the State of Texas is therefore a suit against the State. See id.; see also 

Kentucky, 473 U.S. at 165; Freedom from Religion Foundation, Inc. v. Mack, 4 F.4th 306, 311 

(5th Cir. 2021). 

The Eleventh Amendment states that “[t]he Judicial power of the United States shall not 

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the 

United States by citizens of another State, or by Citizens or subjects of any Foreign State.” “This 

withdrawal of jurisdiction effectively confers an immunity from suit.” P.R. Aqueduct & Sewer 

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). Therefore, “an unconsenting State is 

immune from suits brought in federal courts by her own citizens as well as by citizens of another 

State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). This immunity applies to both federal and 

state law claims brought in federal court. See Raj v. La. State Univ., 714 F.3d 322, 328-29 (5th 

Cir. 2013) (determining that sovereign immunity bars both federal and state law claims brought in 

federal court); Roberson v. McShan, No. 05-20055, 2005 WL 2673516, at *1 (5th Cir. Oct. 20, 

2005) (per curiam) (finding that Eleventh Amendment immunity divests federal courts of 

jurisdiction to hear federal and state law claims). 

Although Congress has the power to abrogate that immunity through the Fourteenth 

Amendment, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–76 (2000), and the State may waive 

its immunity by consenting to suit, AT&T Commc’ns v. BellSouth Telecomms. Inc., 238 F.3d 636, 

643 (5th Cir. 2001), the State has not waived its immunity by consenting to suit, nor has Congress 

abrogated the Eleventh Amendment immunity by enacting 42 U.S.C. § 1983 or 42 U.S.C. § 1985. 

See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Hines v. Miss. Dep’t of Corr., No. 

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00-60143, 2000 WL 1741624, at *3 (5th Cir. Nov. 14, 2000) (per curiam). Additionally, 

“Congress did not abrogate Eleventh Amendment immunity by granting federal courts 

supplemental jurisdiction over state law claims in 28 U.S.C. § 1367(a). Roberson, 2005 WL 

2673516, at *1 (citing Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541–42 (2002)). 

Eleventh Amendment immunity extends to Texas justices of the peace sued in their official 

capacities as well. See Law v. Hunt Cty., Texas, 830 F.Supp.2d 211, 214-15 (N.D. Tex. 2011) (“A 

justice of the peace, as a judge of the State of Texas, may be entitled to Eleventh Amendment 

immunity when named in her official capacity.”) (citing Kastner v. Lawrence, 390 F. App’x 311, 

315 (5th Cir. 2010) (per curiam); Davis, 565 F.3d at 228); see also Wilkins v. Attorney Keval Patel 

Law Firm, Civil Action No. 3:23-cv-00088, 2023 WL 4108841, at *2 (S.D. Tex. June 21, 2023), 

rec. accepted 2023 WL 4424604 (S.D. Tex. July 10, 2023) (finding that Eleventh Amendment 

barred official-capacity claims against Texas justice of the peace) (citation omitted); Jewell v. 

Barlett, No. 3:19-cv-02667-N-BT, 2022 WL 1129910, at *4 (N.D. Tex. Mar. 22, 2022), rec. 

accepted 2022 WL 1128957 (N.D. Tex. Apr. 15, 2022) (same). Plaintiff’s claims against Judges 

in their official capacities for monetary damages are barred and should be dismissed without 

prejudice. See, e.g., Du Bois v. Warne, 336 F. App’x 407, 409 (5th Cir. 2009) (per curiam); 

Anderson v. Jackson State Univ., 675 F. App’x 461, 464 (5th Cir. 2017) (per curiam) (Eleventh 

Amendment dismissal without prejudice). 

2. Individual Capacity Claims 

The Supreme Court has recognized absolute immunity for judges acting in the performance 

of their judicial duties. See Nixon v. Fitzgerald, 457 U.S. 731, 745-46 (1982). Judges are immune 

from suit from damages resulting from any judicial act. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). 

“This immunity extends to all judges, irrespective of their status in the judicial hierarchy, including 

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justices of the peace.” Laird v. Spencer, 611 F.Supp.3d 250, 255 (M.D. La. 2020) (citing Brewer 

v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982)). Allegations of bad faith or malice do not 

overcome judicial immunity. Mireles, 502 U.S. at 11. A plaintiff can overcome the bar of judicial 

immunity only in two very limited circumstances. See id. at 11-12; see also Boyd v. Biggers, 31 

F.3d 279, 284 (5th Cir. 1994). 

First, a judge is not immune from suit for actions that are not “judicial” in nature. See 

Mireles, 502 U.S. at 11. “[W]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of 

the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations 

of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Davis, 565 F.3d at 

222 (quoting Mireles, 502 U.S. at 12). “[T]he relevant inquiry is the ‘nature’ and ‘function’ of the 

fact, not the ‘act itself.’ In other words, [a court should] look to the particular act’s relation to a 

general function normally performed by a judge....” Id. 

[The Fifth Circuit] has adopted a four-factor test for determining whether a 

judge’s actions were judicial in nature: (1) whether the precise act complained 

of is a normal judicial function; (2) whether the acts occurred in the courtroom 

or appropriate adjunct spaces such as the judge’s chambers; (3) whether the 

controversy centered around a case pending before the court; and (4) whether 

the acts arose directly out of a visit to the judge in his official capacity. These 

factors are broadly construed in favor of immunity. 

Davis, 565 F.3d at 222-23 (citations omitted). Second, a judge is not immune from suit for actions 

that although judicial in nature, are taken in the complete absence of all jurisdiction. See Mireles, 

502 U.S. at 12; see also Malina v. Gonzalez, 994 F.2d 1121, 1124 (5th Cir. 1993)). 

Here, Plaintiff complains about the issuance of judicial orders, which are judicial acts. See, 

e.g., Williams v. Pernell, 2023 WL 2264195, at *3 (W.D. Tex. Feb. 23, 2023) (“Plaintiff alleges 

that Judge Hallford violated his due process rights by granting a protective order against him. 

Because the act of granting a protective order is judicial, Judge Hallford is entitled to absolute 

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judicial immunity...”) (citing Boyd, 31 F.3d at 285); Wells v. Ali, 304 F. App’x 292, 294 (5th Cir. 

2008) (per curiam) (finding judge entitled to immunity against claim that the judge violated the 

plaintiff’s rights by ordering his eviction). Plaintiff does not allege that either judge in this case 

acted in the complete absence of all jurisdiction. 

Plaintiff’s claims for against Judges in their individual capacities for monetary damages 

are barred by judicial immunity. 

C. Officer 

 Plaintiff also sues Officer in her individual and official capacities. (doc. 7 at 3-4.)

1. Official Capacity Claims 

Plaintiff’s official-capacity suit against Officer is a suit against the City of Corsicana. 

Hampton Co. Nat’l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 2008). A municipality 

may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of 

his or her constitutional rights. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978); 

Jones v. City of Hurst, Tex., No. 4:05-CV-798-A, 2006 WL 522127, at *3 (N.D. Tex. Mar. 2, 2006) 

(citing Board of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997)). Municipalities can also be 

liable for the illegal or unconstitutional actions of final policymakers. See Pembaur v. City of 

Cincinnati, 475 U.S. 469, 480-81 (1986). It is well-settled that a municipality cannot be liable 

under a theory of respondeat superior, however. Piotrowski v. City of Houston, 237 F.3d 567, 578 

(5th Cir. 2001) (citing cases). “Under the decisions of the Supreme Court and [the Fifth Circuit], 

municipal liability under section 1983 requires proof of three elements: a policy maker; an official 

policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” Id.

(citing Monell, 436 U.S. at 694); see also Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 

2010); Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005). “Official policy” is defined as: 

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1. 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; 

or 

2. A persistent, widespread practice of city officials or employees, which, 

although not authorized by officially adopted and promulgated policy, is so 

common and well settled as to constitute a custom that fairly represents 

municipal policy. Actual or constructive knowledge of such custom must 

be attributable to the governing body of the municipality or to an official to 

whom that body has delegated policy-making authority. Actions of officers 

or employees of a municipality do not render the municipality liable under 

§ 1983 unless they execute official policy as above defined. 

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam); accord Pineda v. City 

of Houston, 291 F.3d 325, 328 (5th Cir. 2002). 

 “The description of a policy or custom and its relationship to the underlying constitutional 

violation...cannot be conclusory; it must contain specific facts.” Spiller v. City of Texas City, Police 

Dept’s, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 

(5th Cir. 1992)); accord Piotrowski, 237 F.3d 578-79. “[A] complaint must contain either direct 

allegations on every material point necessary to sustain recovery...or contain allegations from 

which an inference fairly may be drawn that evidence on these material points will be introduced 

at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). 

Plaintiff has failed to identify a policy or custom that was the moving force of a 

constitutional violation. Further, as shown below, Plaintiff has failed to plausibly allege a 

constitutional violation, which is a prerequisite to municipal liability. See, e.g., Salazar-Limon v. 

City of Houston, 97 F.Supp.3d 898, 910 (S.D. Tex. 2015). Accordingly, Plaintiff fails to state an 

official-capacity claim against Officer. 

1. Individual Capacity Claims 

Plaintiff also sues Officer in her individual capacity. (doc. 7 at 3-4.) 

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a. False Arrest/Imprisonment 

Plaintiff claims that Officer falsely arrested and imprisoned her. (doc. 3 at 2.) “[T]o state a 

§ 1983 claim for false arrest/false imprisonment, [she] must plausibly allege that [Officer] ‘did not 

have probable cause to arrest [her].’” Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) 

(quoting Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004)). “A warrantless arrest must 

be based on ‘probable cause.’ Probable cause exists when the totality of the facts and circumstances 

within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person 

to conclude that the suspect had committed or was committing an offense.” Resendiz v. Miller, 203 

F.3d 902, 903 (5th Cir. 2000). “Because probable cause is an objective standard, an arrest is lawful 

if the officer had probable cause to arrest for any offense, not just the offense stated at the time of 

arrest or booking.” District of Columbia v. Wesby, 538 U.S. 48, 54 n. 2 (2018). 

Plaintiff appears to claim that she was arrested for assault family violence impeding breath 

or circulation, in violation of Texas Penal Code § 22.01(b)(2)(B). (See doc. 3 at 3.) That provision 

prohibits assault5

 against a person with whom one is in a statutorily described relationship when 

the offense “is committed by intentionally, knowingly, or recklessly impeding the normal 

breathing or circulation of the blood of the person by applying pressure to the person’s throat or 

neck or by blocking the person’s nose or mouth.” The requisite relationship element is met if the 

assailant is in a “dating relationship” with the victim. TEXAS PENAL CODE ANN. § 22.01(b)(2)(B). 

Dating relationship means a relationship between individuals who have or have had a continuing 

relationship of a romantic nature considering (1) the length of the relationship, (2) the nature of 

5

 A person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, 

including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including 

the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or 

should reasonably believe that the other will regard the contact as offensive or provocative. TEX. PEN. CODE ANN. 

§22.01(a). 

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the relationship, and (3) the frequency and type of interaction between the persons involved in the 

relationship. TEX. FAM. CODE ANN. § 71.0021(b). 

Plaintiff has not plausibly alleged that Officer lacked probable cause to arrest her for assault 

family violence impeding breath or circulation, or for another offense such as simple assault. The 

arrest was based on a complaint from the victim—with whom Plaintiff was in a “relationship”—

that she choked him. (Id. at 3.) A victim’s complaint is generally sufficient to establish probable 

cause unless the officer has reason to believe the victim is lying or mistaken. See, e.g., Johnson v. 

Bryant, No. 94-10661, 1995 WL 29317, at *3 (5th Cir. Jan. 17, 1995) (“A victim’s accusation 

identifying an individual as a perpetrator is generally sufficient to establish probable cause.”); 

United States v. Burbidge, 252 F.3d 775, 778 (5th Cir. 2001) (an eyewitness identification will 

establish probable cause “unless, at the time of the arrest, there is an apparent reason for the officer 

to believe that the eyewitness was lying [or mistaken]”). Absent grounds to believe that the friend 

was lying or mistaken about Plaintiff’s actions, Officer had probable cause to arrest her. 

 Plaintiff has alleged that her friend was a drug addict with mental health issues, but she 

does not allege that Officer knew or should have known that. She also claims that there was not 

probable cause because the victim recanted the accusation while Officer was arresting her and 

because he later signed an affidavit of non-prosecution. 

“Neither an arrestee’s protestations of innocence nor a putative victim’s inconsistent 

statements necessarily vitiate probable cause”, however. Fogelman v. Donato, 111 F.Supp.3d 282, 

285 (E.D.N.Y. 2015). This principle holds “especially” true “in a domestic violence situation” 

where “stories conflict and recantations happen so frequently.” Torres v. City of New York, No. 

20-CV-4007, 2022 WL 955152, at *5 (E.D.N.Y. Mar. 30, 2022). In Torres, the court rejected a 

false arrest claim when the child victim alleged that his mother physically abused him and then 

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recanted that allegation after he saw her in handcuffs. Id. at *2, 4. Noting the “pressure on domestic 

violence victims to recant and protest their attackers’ innocence and the unreliability of those 

recantations,” the court held that the “police officers were objectively reasonable in not accepting 

the recantation at face value, even putting aside that it occurred after plaintiff had been arrested.” 

Id. at *4 (citing United States v. Carthen, 681 F.3d 94, 103 (2nd Cir. 2012); Haouari v. United 

States, 510 F.3d 350, 353 (2d Cir. 2007); Lindsay v. Malloy et al., FILIAL DEPENDANCE AND 

RECANTATION OF CHILD SEXUAL ABUSE ALLEGATIONS, 46 J. Am. Acad. Child Adolesc. Psychiatry 

2 (2007); Lisa Marie DeSanctis, BRIDGING THE GAP BETWEEN THE RULES OF EVIDENCE AND 

JUSTICE FOR VICTIMS OF DOMESTIC VIOLENCE, 8 Yale J.L. & Feminism, 359, 367-68 (1996)); see 

also Felix v. New York State Dep’t of Corr. and Cmty. Supervision, No. 16-CV-7978 (CS), 2018 

WL 3542859, at *9 (S.D.N.Y. July 18, 2013) (refusing to treat recantation from domestic assault 

victim “as vitiating reasonable cause”). 

While Torres and the other out-of-circuit cases are not binding, they are persuasive. Here, 

in the context of apparent domestic violence, neither the friend’s recantation or apparent desire 

that Plaintiff not be prosecuted vitiated Officer’s probable cause either. See, e.g., Powell v. 

Wagner, Civil Action No. 3:16-CV-0276, 2018 WL 2388592, at *2 (S.D. Tex. May 25, 2018) 

(“Although Powell’s wife later told the district attorney that she did not want to pursue the 

prosecution, her initial accusations of domestic assault gave the deputies probable cause to make 

his arrest.”) (citing Jones v. Sparta Comm. Hosp., 716 F. App’x 547, 49 (7th Cir. 2018)). 

Plaintiff fails to state a plausible false arrest/false imprisonment claim.6

 

6

 Plaintiff also claims that Officer used Plaintiff’s friends and family to “fabricate” a police report “to try to bring false 

charges against [her.]” (doc. 3 at 2-3.). To the extent this is a separate claim from the false arrest/imprisonment claim, 

while there is a “due process right not to have police deliberately fabricate evidence and use it to frame and bring 

charges against a person,” Cole v. Carson, 802 F.3d 752, 771 (5th Cir. 2015), Plaintiff’s bare allegation of fabrication 

without any supporting facts is too conclusory to state a claim. See, e.g., Miguel v. Cochran, Civil Action No. 5:20-

CV-041-BQ, 2020 WL 5778130, at *5 (N.D. Tex. Sept. 11, 2020) (citing Iqbal, 556 U.S. at 679) (vague and 

conclusory statements do not warrant a presumption of truth and are insufficient to state a claim). 

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b. Retaliatory Arrest 

Plaintiff appears to allege that Officer arrested her in retaliation for using an unspecified 

grievance system. (doc. 7 at 6.) The elements of a claim under a retaliation theory are the plaintiff’s 

invocation of “a specific constitutional right,” the defendant’s intent to retaliate against the plaintiff 

for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., “but for the 

retaliatory motive the complained of incident...would not have occurred.” Woods v. Smith, 60 F.3d 

1161, 1166 (1995) (citations omitted), cert. denied, 516 U.S. 1084, 116 S. Ct. 800, 133 L. Ed, 2d 

747 (1996). In the case of a retaliatory arrest, the plaintiff must “plead and prove the absence of 

probable cause for the underlying criminal charge.” Nieves v. Barlett, 139 S. Ct. 1715, 1722 (2019) 

(citing Hartman v. Moore, 547 U.S. 250, 256 (2006)) (internal quotation marks omitted). 

As discussed, Plaintiff has not plausibly alleged the absence of probable cause to arrest her, 

so a retaliatory arrest claim fails. 

c. Excessive Force 

Plaintiff alleges that Officer used excessive force when arresting her. (doc. 3 at 3.) To 

succeed on a Fourth Amendment excessive force claim under § 1983, a plaintiff must show “(1) 

an injury that (2) resulted directly and only from the use of force that was excessive to the need 

and that (3) the force used was objectively unreasonable.” Graham v. Connor, 490 U.S. 386, 395 

(1989); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). 

Here, Plaintiff does not allege any injury from Officer’s alleged use of force; she admits 

that there was no diagnosed injury requiring medical treatment. (doc. 7 at 11.) The absence of a 

physical injury precludes an excessive force claim. See, e.g., Glenn v. City of Tyler, 242 F.3d 307, 

314 (5th Cir. 2001) (“Although a showing of ‘significant injury’ is no longer required in the context 

of an excessive force claim, ‘we do require a plaintiff asserting an excessive force claim to have 

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suffered at least some form of injury.’”) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 

1999)). Plaintiff fails to state an excessive force claim upon which relief may be granted. 

In conclusion, Plaintiff’s individual capacity claims against Officer should be dismissed. 

IV.LEAVE TO AMEND 

 The Fifth Circuit is inclined to give pro se plaintiffs several opportunities to state a claim 

upon which relief can be granted. See Scott v. Brynes, No. 3:07-CV-1975-D, 2008 WL 398314, at 

*1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. 

Tex. Feb. 13, 2001). Courts therefore typically allow pro se plaintiffs an opportunity to amend 

their complaints when the action is to be dismissed pursuant to a court order. See Robinette v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. 

Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at *2. 

Leave to amend is not necessary, however, where the plaintiff has already plead his best 

case. See Wiggins v. La. State Univ.—Health Care Servs. Div., 710 F. App’x 625, 627 (5th Cir. 

2017) (per curiam) (citations omitted). Here, Plaintiff responded to a detailed questionnaire. A 

verified questionnaire response allows a plaintiff to plead his or her best case and is a valid way 

for a pro se litigant to amend his complaint. See Nixon v. Abbott, 589 F. App’x 279 (5th Cir. 2015) 

(per curiam) (“Contrary to Nixon’s argument, he was given the opportunity to amend his complaint 

in his responses to the magistrate judge’s questionnaire, which has been recognized as an 

acceptable method for a pro se litigant to develop the factual basis for his complaint.”). 

Because Plaintiff has plead her best case, leave to amend is neither necessary nor 

warranted. See, e.g., Duke v. Dallas Cty., No. 3:20-CV-117-G (BH), 2021 WL 3525106, at *3 

(N.D. Tex. June 25, 2021), rec. accepted, 2021 WL 3204565 (N.D. Tex. July 29, 2021). 

 

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15 

V. RECOMMENDATION 

Plaintiff’s claims against the state judges in their official capacities should be dismissed 

WITHOUT PREJUDICE under the Eleventh Amendment, and her remaining claims should be 

dismissed WITH PREJUDICE for failure to state a claim upon which relief can be granted under 

28 U.S.C. § 1915(e)(2)(B). 

SIGNED on this 1st day of November, 2023. 

INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

 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. Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996). 

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