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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

ABDIAS ROSALES,

Plaintiff,

v. 

TEXAS CITY OF TYLER, CHIEF OF 

POLICE J. TOLER, OFFICER J. 

HERBERT, OFFICER S. BLACK, 

OFFICER S. MCGREGOR, OFFICER T. 

SIPES, OFFICER J. UTLEY, OFFICER A. 

THOMAS,

Defendants.

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION NO. 6:23-CV-00245-JDK

REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE

Before the court is Defendants’ the City of Tyler, Chief Jimmy Toler, Officer J. Hebert, 

Officer S. Black, Officer S. McGregor, Officer T. Sipes, Officer J. Utely, and Officer A. Thomas 

(collectively “Defendants”) motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(6). (Doc. No. 4.) Plaintiff filed a response in opposition (Doc. No. 10). No reply or sur-reply 

were filed. The motion was referred to the undersigned for a recommendation of disposition. (Doc. 

No. 15.) For the reasons stated herein, the court RECOMMENDS that Defendants’ motion to 

dismiss (Doc. No. 4) be GRANTED-IN-PART and DENIED-IN-PART as set forth herein. 

BACKGROUND

Plaintiff filed this action against Defendants on May 9, 2023, for alleged violations of 

constitutional rights pursuant to 42 U.S.C. § 1983 and for conspiracy to interfere with civil rights 

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pursuant to 42 U.S.C. § 1985. (Doc. No. 1.) Specifically, Plaintiff alleges that Defendants violated 

Plaintiff’s First, Fourth, and Fourteenth Amendment rights. Id. 

The claims arise from an incident that occurred on March 18, 2022. Id. at ¶ 10. Plaintiff 

alleges that he was working at Tyler Autoplex when he observed a traffic stop involving a vehicle 

sold and financed by Tyler Autoplex. Id. Plaintiff alleges that his boss, Blas Murillo, approached 

the traffic stop and was recording it. Id. Plaintiff alleges that he remained on the other side of the 

street until backup arrived. Id. at ¶¶ 13–15. When Plaintiff approached the stop, he was concerned 

about whether the vehicle was going to be taken by the police and asked the responding officers 

whether, if he had an affidavit of repossession, the vehicle could be released to him. Id. at ¶ 17. 

Plaintiff alleges that Officer McGregor asked him if he had a tow truck to tow the vehicle and that 

he indicated that he had a flatbed truck to tow the vehicle. Id. at ¶ 18. Plaintiff then alleges that he 

was informed by Officer McGregor that the vehicle was going to be towed because it was used in 

the commission of an offense. Id. at 19. Plaintiff alleges that Officer Herbert threatened his boss 

with arrest for recording the stop. Id.

Plaintiff alleges that when a Muggles tow truck pulled up to the scene he asked if the 

vehicle was being towed to the Tyler Police Impound and Officer Herbert indicated that Plaintiff 

was “being an asshole” for asking. Id. at ¶ 20. Plaintiff alleges that Officers Herbert and McGregor 

refused to discuss the issue of whether he would be allowed to repossess the vehicle and that when 

Plaintiff approached the tow truck driver to inquire, Officers Herbert and McGregor placed 

Plaintiff under arrest for interfering with a police investigation. Id. at ¶ 21. 

Plaintiff alleges that on March 25, 2022, Officer Amber Thomas informed Plaintiff that an 

arrest warrant would be issued on his criminal charges and that on April 13, 2022, Officer Thomas 

informed him that the judge signed the arrest warrant. Id. at ¶ 22. As a result, Plaintiff alleges that 

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he self-surrendered and was booked into Smith County Jail. Id. Plaintiff alleges that Officer 

Thomas made a criminal complaint against Plaintiff for Interference With Public Duties, a Class 

B Misdemeanor. Id. at ¶ 23. Plaintiff alleges that Officer Thomas falsified the warrant affidavit by 

stating that Plaintiff interfered with Officer Herbert’s discharge of his duties. Id. Plaintiff states 

that the affidavit was false because Officer Thomas knew at the time that Plaintiff’s actions did not 

constitute an offense under the laws of the State of Texas and that Defendants Herbert, McGregor, 

Black, Thomas, and Toler all knew that that Plaintiff did not interfere with Officer Herbert’s duties. 

Id.

Plaintiff sues all Defendants in their official and individual capacities for retaliation in 

violation of the First Amendment, wrongful arrest and malicious prosecution in violation of the 

Fourth Amendment, and for deprivation of due process under the Fourteenth Amendment. Plaintiff 

further alleges that as Chief of Police, Officer Toler engaged in wrongful hiring, training, 

supervising, and maintain quality public servants in violation of these rights. Id. at ¶¶ 26–28. 

Plaintiff further alleges that Defendant Toler is liable for the conduct of officers acting in the scope

of their employment and that Chief Toler instituted policies that were the moving force behind the 

constitutional violations. Id. at ¶ 31. Plaintiff makes similar respondeat superior claims against the 

City of Tyler and states that by acting through policy makers the City of Tyler intentionally, 

knowingly, recklessly, or with deliberate indifference to the rights of its inhabitants failed to 

prevent the commission of these wrongs. Id. at ¶¶ 40–41. Plaintiff further alleges that the City of 

Tyler approved or ratified the unlawful conduct of Defendants. Id. at ¶ 42. 

In addition, Plaintiff alleges a claim for conspiracy to interfere with civil rights pursuant to 

42 U.S.C. § 1985(3). Plaintiff alleges that all Defendants were aware that Plaintiff’s actions did 

not constitute interference with public duties and that they knew that the citation and prosecution 

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of the charge was false. Id. at ¶ 45. Plaintiff alleges that all Defendants knew that such action was 

in violation of Plaintiff’s constitutional rights. Id. at ¶¶ 46–47. 

LEGAL STANDARD

Motions to dismiss under Rule 12(b)(6) for failure to state a claim “are viewed with 

disfavor and are rarely granted.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th 

Cir. 2005); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The court utilizes a 

“two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 

(2009). First, the court identifies and excludes legal conclusions that “are not entitled to the 

assumption of truth.” Id. Second, the court considers the remaining “well-pleaded factual 

allegations.” Id. The court must accept as true all facts alleged in a plaintiff’s complaint, and the 

court views the facts in the light most favorable to the plaintiff. In re Katrina Canal Breaches 

Litig., 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff’s complaint survives a defendant’s Rule 

12(b)(6) motion to dismiss if it includes facts sufficient “to raise a right to relief above the 

speculative level.” Id. (quotations and citations omitted). 

In other words, the court must consider whether a plaintiff has pleaded “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). “‘[D]etailed factual allegations’” are not required. Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555). Nevertheless, a complaint must allege “sufficient factual matter, 

accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 

570). “A claim has facial plausibility when the pleaded factual content allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.” Id. at 679. 

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DISCUSSION 

Defendants’ motion first requests that the court dismiss Plaintiff’s claims for malicious 

prosecution and wrongful arrest under Rule 12(b)(6) because Defendants claim there is no 

freestanding claim for malicious prosecution and the impartial intermediary doctrine prohibits a 

claim for false arrest. (Doc. No. 4, at 5–9.) Plaintiff responds that he has alleged a viable Franks 

claim and that the Supreme Court and the Fifth Circuit permit a claim for malicious prosecution 

when there is favorable termination of prosecution. (Doc. No. 10, at 3–7.) Defendants further argue 

that the claims against Defendants Utley, Sipes, and Black should be dismissed for failure to state 

a claim. (Doc. No. 4, at 9–11.) Defendants argues that Plaintiff’s conclusory claims against Chief 

Toler and the City of Tyler fail to state a claim. Id. at 11–13. Plaintiff contends that he has 

sufficiently stated a claim against all Defendants. (Doc. No. 10, at 9–11.) Finally, Defendants 

contend that they are entitled to qualified immunity (Doc. No. 4, at 14 –16), which Plaintiff 

disputes (Doc. No. 10, at 10). 

As an initial matter, the court notes that the poor presentation of Defendants’ motion, 

coupled with Plaintiff’s poorly organized pleadings, has made it difficult to untangle the web of 

legal issues presented to the court for resolution on a matter of complex constitutional questions

and corresponding affirmative defenses. The lack of attention to detail by both parties has resulted 

in a procedural presentation of issues that is difficult to follow at best. For example, although 

Defendants request that the entire action be dismissed, Defendants’ motion does not address 

Plaintiff’s pleaded First Amendment, Fourteenth Amendment, or § 1985 conspiracy claims. And 

while Plaintiff’s response manages to identify some of these deficiencies, it does not identify all 

of them. To compound the problem, Defendants failed to file a reply to clarify any of these matters. 

Furthermore, numerous boilerplate arguments used by both parties fail to properly raise issues 

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before the court and, as a result, consume an inordinate amount of judicial resources to resolve. 

Therefore, the court streamlines the issues for resolution as presented in Defendants’ motion below. 

I. Claim for Malicious Prosecution Against Officer Thomas

Defendants first argue that Plaintiff’s claim for malicious prosecution must be dismissed 

because there are no freestanding claims for malicious prosecution under the constitution. (Doc. 

No. 4, at 7.) Plaintiff responds that the Supreme Court has held in Thompson v. Clark, 142 S.Ct. 

1332 (2022) that litigants may bring a Fourth Amendment malicious prosecution claim under § 

1983 and that the Fifth Circuit recently recognized such claims in Armstrong v. Ashley, 60 F.4th

262, 278 (5th Cir. 2023). (Doc. No. 10, at 6–7.) 

As to the matter of malicious prosecution, the court notes that previously the Fifth Circuit 

foreclosed freestanding claims for violations of constitutional rights by engaging in malicious 

prosecution. Castellano v. Fragozo, 352 F.3d 939, 958 (5th Cir. 2003) (en banc). Recently, 

however, in light of the Supreme Court’s holding in Thompson, the Fifth Circuit agreed that 

litigants may bring a Fourth Amendment malicious prosecution claim under § 1983. Armstrong, 

60 F.4th at 278. The Fifth Circuit further interpreted Thompson to require a showing that the 

malicious prosecution resulted in the unlawful seizure of the plaintiff and reinstated the elements 

for a constitutionalized malicious prosecution claim it had previously set forth in Gordy. Id. These 

elements include: “(1) the commencement or continuance of an original criminal proceeding; (2) 

its legal causation by the present defendant against plaintiff who was defendant in the original 

proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of 

probable cause for such proceeding; (5) malice; and (6) damages.” Id. citing (Gordy v. Burns, 294 

F.3d 722, 727 (5th Cir. 2002)). 

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Here, as to the requirement that Plaintiff allege an unlawful seizure under the Fourth 

Amendment resulting from the malicious prosecution, Plaintiff alleges that he was arrested on a 

falsified arrest warrant affidavit. Specifically, Plaintiff alleges that Officer Thomas falsely stated 

in an arrest warrant affidavit that Plaintiff interfered with the discharge duties of Officer Herbert. 

(Doc. No. 1, at ¶ 23.) Plaintiff alleges that this false affidavit led to the issuance of an arrest warrant 

signed by a judge for which he self-surrendered and was booked in the Smith County Jail. Id. at ¶ 

22. In Manuel v. City of Joliet, Ill., the Supreme Court made clear that the Fourth Amendment 

prohibits government officials from detaining a person in the absence of probable cause and that 

the lack of probable cause can occur when “a judge’s probable-cause determination is predicated 

solely on a police officer’s false statements.” Manuel v. City of Joliet, Ill., 580 U.S. 357, 367 

(2017). Because Plaintiff has alleged that he was arrested without probable cause, he has 

sufficiently alleged an unlawful seizure under the Fourth Amendment. 

As to the remainder of the elements, Plaintiff has pleaded sufficient facts to assert a claim 

for malicious prosecution. Plaintiff has alleged commencement through his allegations that a

warrant for his arrest issued and a criminal complaint was made against him for Interference with 

Public Duties. (Doc. No. 1, at ¶¶ 22, 23.) Plaintiff has further alleged causation in alleging that 

Officer Thomas initiated the commencement of the criminal proceedings by signing and executing 

an arrest warrant that falsely stated that Plaintiff interfered with the discharge duties of Officer 

Herbert. Id. at ¶ 23. Further, Plaintiff alleges that the charges against him were ultimately 

dismissed, and the jail record reflects that they were resolved favorably on a surety bond. Id. 

Moreover, as discussed above, Plaintiff has plainly alleged that the proceedings lacked probable 

cause. (Doc. No. 1, at ¶¶ 22–24.) As to malice, it is well established that malice can be inferred 

from the absence of probable cause. See Stewart v. Sonneborn, 98 U.S. 187 (1878); Young v. City 

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of Idabel, 721 F. App’x 789, 804 (10th Cir. 2018) (collecting cases). Again, as discussed, Plaintiff 

has alleged that the proceedings lacked probable cause because they were initiated by an arrest 

affidavit and warrant that Plaintiff alleges included false statements. Finally, Plaintiff has alleged 

damages for the malicious prosecution in that he has had to employ a law firm to represent him in 

this matter to assert his claims against Defendants and he seeks his attorney’s fees. (Doc. No. 1, at 

¶ 33, 48.) Plaintiff further alleges reputational damage, emotional stress, and mental anguish as a 

result of the wrongful criminal charges. Id. at ¶ 24. 

For the reasons discussed herein, Plaintiff has sufficiently alleged a claim for malicious 

prosecution against Officer Thomas. 

II. Claim for Wrongful Arrest Against Officer Thomas

Defendants next argue that Plaintiff fails to state a claim for a constitutional violation based 

upon an alleged wrongful arrest because under the “independent intermediary doctrine,” an officer 

procuring a warrant will not be liable if the facts supporting the warrant are put before an impartial 

intermediary such as a magistrate or grand jury. (Doc. No. 4, at 8–9.) Plaintiff alleges that 

Defendants’ blanket assertion of the independent intermediary doctrine should be rejected because 

Plaintiff has alleged that the officers involved in instigating and executing his criminal charges did 

so knowing that his conduct did not constitute an offense and therefore knew that no probable 

cause existed for the arrest. (Doc. No. 10, at 4–6.) 

“It is well settled that 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 false arrest, insulating the initiating party.” Curtis v. Sowell, 761 F. App’x 302, 304 

(5th Cir. 2019). However, “[d]espite review by an independent intermediary, the initiating party 

may be liable for false arrest if the plaintiff shows that ‘the deliberations of that intermediary were 

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in some way tainted by the actions of the defendant.’” Deville v. Marcantel, 567 F.3d 156, 170 (5th 

Cir. 2009) (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988)).

Here, Plaintiff alleges that the actions of the judge issuing the warrant were tainted by 

Officer Thomas’s alleged false statements in the arrest warrant affidavit. (Doc. No. 1, at ¶ 23.) 

Specifically, Plaintiff alleges that Officer Thomas knew that Plaintiff’s actions did not amount to 

a criminal offense at the time she executed the affidavit, but nonetheless she signed a false 

statement and submitted it to the judge to issue a warrant for Plaintiff’s arrest. Id. Plaintiff alleges 

that this false statement resulted in his actual arrest. Id. at ¶ 22. As such, Plaintiff has also 

sufficiently pleaded a claim for wrongful arrest against Officer Thomas. 

III. Plaintiff’s Fourth Amendment Claims as to Remaining Defendants 

Defendants next move to dismiss claims against individual defendants, Defendant Officer 

Utley, Defendant Officer Sipes, Defendant Officer Black, Defendant Chief Toler, and the City of 

Tyler for failure to state a claim. (Doc. No. 4, at 9–12.) Plaintiff does not address these arguments 

other than addressing the sufficiency of his failure to train claim against Chief Toler and the City 

of Tyler. (Doc. No. 10, at 9–10.) 

As to the individual officers, Defendant Officer Utley, Defendant Officer Sipes, and 

Defendant Officer Black, the court agrees that the complaint does not contain allegations sufficient 

to allege a constitutional violation by these individuals based upon their personal involvement. 

Moreover, it appears that Plaintiff does not dispute this fact as he has not responded to Defendants’ 

motion in this respect. However, as the court already discussed, Plaintiff has asserted a claim 

pursuant to 42. U.S.C. § 1985 and Defendants have not moved to dismiss these allegations. The 

court will therefore not sua sponte consider the sufficiency of Plaintiff’s conspiracy claim, but 

presumes that the naming of the above-referenced Defendants in this lawsuit is for purposes of 

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that particular claim rather than pursuing individual claims against these Defendants for violations 

of § 1983. However, to the extent Plaintiff intended to assert claims against Defendant Officer 

Utley, Defendant Officer Sipes, and Defendant Officer Black for Fourth Amendment violations, 

the court agrees that those claims are not sufficiently alleged and should be dismissed. 

a. Failure to Train Claim Against Chief Toler 

As to Defendant Chief Toler, Defendants argue that a failure to train claim against Chief 

Toler should be dismissed because the allegations are conclusory and amount to nothing more than 

claims based upon respondeat superior. (Doc. No. 4, at 11–12.) Plaintiff alleges that his allegations 

are sufficient, and he should be allowed discovery regarding the officers’ training particularly with 

respect to his First Amendment retaliation claim and the required factual basis of the criminal case. 

(Doc. No. 10, at 9.) Plaintiff alternatively requests that he be allowed to amend his complaint. Id.

To succeed on a failure-to-train theory, “[d]efects in a particular training program must be 

specifically alleged.” Quinn v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017) (citing Roberts v. City 

of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)). Of course, courts should only require “minimal 

factual allegations” about the training programs at the pleading stage, since “it is exceedingly rare 

that a plaintiff will have access to (or personal knowledge of) specific details regarding the 

existence or absence of internal policies or training procedures prior to discovery.” Thomas v. City 

of Galveston, Texas, 800 F. Supp. 2d 826, 842–43 (S.D. Tex. 2011). Still, a plaintiff cannot state a 

failure-to-train claim by making a “conclusory allegation that it is ‘apparent from the facts of [the] 

case’ that [ ] training ... was insufficient.” Speck v. Wiginton, 606 F. App’x 733, 736 (5th Cir. 2015).

Here, Plaintiff alleges a number of conclusory statements with respect to Chief Toler. He 

alleges, for example, that Chief Toler is “liable for the conduct of Defendant officers while they 

are acting within the course and scope of their employment,” that Toler “instituted policies which 

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created and still create a climate in which the type of abusive behavior exhibited” occurred, that 

Toler is “guilty of wrongful hiring, training, supervising, disciplining and maintaining public 

servants of the quality and character of Officer Defendants,” that Toler is “guilty of promulgating

regulations, ordinances and policies that allow Defendants to disregard Plaintiff’s constitutional

rights,” and that Toler is “grossly negligent in entrusting Officer Defendants with responsibility in 

the prosecution of this case...” (Doc. No. 1, at ¶¶ 27, 28, 31.) Plaintiff’s allegations, though stating 

a number of legal conclusions against Chief Toler, fail to allege any facts regarding a defect in any 

particular training program or any personal involvement of Chief Toler with respect to a 

constitutional violation. The doctrine of respondeat superior does not apply to § 1983 claims. 

Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). Accordingly, Plaintiff has failed to allege a 

claim against Chief Toler for failure to train. Although it is unclear whether Plaintiff intended to 

allege this claim against Chief Toler in his individual capacity, his official capacity, or both, neither 

claim can stand as alleged for the reasons discussed. 

b. Monell Claim Against the City of Tyler 

Defendants next move to dismiss the claims against the City of Tyler as conclusory and 

failing to sufficiently allege municipal liability. (Doc. No. 4, at 12–14.) Plaintiff contends that his 

allegations that the City failed to train its police officers and prosecutors on the basic tenets of 

criminal prosecution are sufficient. (Doc. No. 10, at 10.) Plaintiff alternatively asks to amend his 

pleadings. Id. 

A local government may be sued under § 1983 “when execution of a government’s policy 

or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 

represent official policy, inflicts the injury that the government as an entity is responsible.” Monell 

v. Dep’t of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); see also Bishop v. Arcuri, 674 F.3d 

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456, 467 (5th Cir. 2012) (“[M]unicipal liability under section 1983 requires proof of three 

elements: (1) a policymaker; (2) an official policy; and (3) violation of constitutional rights whose 

moving force is the policy or custom.”) (internal citations omitted). To be successful on a claim 

for violation of § 1983, the official policy or custom must cause the constitutional violation. Id. at 

692. However, a municipality may not be liable under § 1983 on a respondeat superior theory; in 

other words, a government entity may not be liable under § 1983 simply by employing a tortfeasor. 

Id. at 691.

Here, Plaintiff characterizes his claim against the City of Tyler as one for failure to train its 

police officers and prosecutors on the basic tenets of criminal prosecution. (Doc. No. 10, at 10.) 

As discussed above, to succeed on a failure to train theory, “[d]efects in a particular training 

program must be specifically alleged.” Quinn, 863 F.3d at 365 (5th Cir. 2017). Courts require 

“minimal factual allegations” about the training programs at the pleading stage, since “it is 

exceedingly rare that a plaintiff will have access to (or personal knowledge of) specific details 

regarding the existence or absence of internal policies or training procedures prior to discovery.” 

Thomas, 800 F. Supp. 2d at 842–43. Still, a plaintiff cannot state a failure-to-train claim by making 

a “conclusory allegation that it is ‘apparent from the facts of [the] case’ that [ ] training ... was 

insufficient.” Speck, 606 F. App’x at 736. 

Here, like the allegations against Chief Toler discussed above, Plaintiff’s allegations 

against the City of Tyler are conclusory. Plaintiff alleges: 

[T]he City of Tyler intentionally, knowingly, recklessly, or with deliberate 

indifference to the rights of the inhabitants of the City of Tyler and to the Plaintiff, 

failed to instruct, supervise, control, and/or discipline, on a continuing basis, all 

Defendants in the performance of their duties to refrain from: Conspiring to violate 

the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution 

and Laws of the United States and the Laws of the State of Texas, and otherwise 

depriving citizens and individuals of their constitutional and statutory rights, 

privileges, and immunities.¶ The City of Tyler had knowledge of, or had it 

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diligently exercised its duties to instruct, train, supervise, control, and discipline on 

a continuing basis, should have had knowledge that the wrongs that were done, as 

heretofore alleged, or other unlawful or unconstitutional acts, were going to be 

committed.

(Doc. No. 1, at ¶¶ 40, 41.) 

These allegations make general legal conclusions about the City of Tyler’s liability in this 

matter, but they fail to allege any facts regarding a specific policy or program that resulted in a 

constitutional violation. Moreover, Plaintiff does not identify any specific defects in any particular 

training programs. Without any specific factual allegations about deficiencies in the City of Tyler’s

training programs, Plaintiff’s failure to train Monell claim cannot proceed as pleaded. 

IV. Plaintiff’s Remaining § 1983 Claims and § 1985 Claims Against Defendants 

As discussed, Plaintiff has pleaded claims for First Amendment retaliation, violation of due 

process under the Fourteenth Amendment, and for conspiracy to interfere with civil rights pursuant 

to 42 U.S.C. § 1985(3). (Doc. No. 1.) Though Defendants’ motion purports to seek dismissal of 

Plaintiff’s entire case, Defendants’ motion does not address these claims. The court will not sua 

sponte consider the sufficiency of the allegations with respect to these claims herein. 

V. Qualified Immunity 

Lastly, Defendants contend that the individual officers are entitled to qualified immunity. 

(Doc. No. 4, at 14–17.) Plaintiff argues that Defendants’ blanket assertion of qualified immunity 

is meritless. (Doc. No. 10, at 10.) 

The doctrine of “qualified immunity” protects government officials from “liability for civil 

damages insofar as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). At the pleading stage, the qualified immunity inquiry focuses on whether a plaintiff has 

shown “(1) that the official violated a statutory or constitutional right, and (2) that the right was 

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‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 

735 (2011) (citing Harlow, 457 U.S. at 818). The court has “discretion in deciding which of the 

two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 

555 U.S. 223, 236 (2009). 

Here, Defendants make only a general assertion that they are entitled to qualified immunity, 

but they make no specific argument regarding their asserted defense. Defendants fail to identify 

which Defendant or Defendants they believe are entitled to qualified immunity based upon the 

alleged conduct or identify which claims they intend to assert the defense against. Indeed, the 

entirety of Defendants’ argument on qualified immunity is as follows: 

Plaintiff has failed to allege any factual basis on which a jury could find that 

Defendant violated his constitutional rights or that any of Defendant’s conduct was 

objectively unreasonable, and has failed to identify a single existing precedent 

which demonstrates Defendant’s alleged conduct constitutes a constitutional 

violation, so the Court should dismiss all claims against the individual Defendants

based on their qualified immunity.

(Doc. No. 4, at 16–17) (internal quotations omitted). 

Defendants’ arguments amount to little more than boilerplate language regarding the 

doctrine of qualified immunity. Such arguments fail to sufficiently raise the defense in a Rule 

12(b)(6) motion. See Watkins v. Healy, No. 17-CV-13940, 2019 WL 3777631, at *9 (E.D. Mich. 

Aug. 12, 2019), aff’d, 986 F.3d 648 (6th Cir. 2021) (finding that boilerplate law related to the 

doctrine of qualified immunity in a 12(b)(6) motion failed to provide the court any basis to 

conclude that defendant was entitled to qualified immunity). Furthermore, as discussed above, 

Plaintiff’s allegations, if taken as true, demonstrate that Officer Thomas violated a clearly 

established constitutional right of which a reasonable person would have known—Plaintiff’s 

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constitutional right to be free from unlawful seizure.1 While the claim may ultimately be difficult 

to prove, Defendants have chosen to rely on a 12(b)(6) motion and have presented no evidence to 

rebut the allegations. To the extent Defendants believe that they have a basis for qualified 

immunity, they may raise that argument on summary judgment. However, as presented, 

Defendants’ blanket assertion of qualified immunity is meritless. 

VI. Amendment 

In his response to Defendants’ motion to dismiss, Plaintiff requests that he be allowed to 

amend his complaint as a matter of course if the court finds his allegations insufficient. (Doc. No. 

10, at 10.) As Defendants failed to file a reply brief, they do not respond to Plaintiff’s request. 

Relevant here, under Rule 15(a)(1) a party may amend a pleading “as a matter of course” 

within 21 days of serving it or, if the pleading requires a responsive pleading, within 21 days after 

service of a responsive pleading or 21 days after service of a motion under Rule 12(b), whichever 

is earlier. But Plaintiff did not amend his complaint in response to Defendants’ motion to dismiss 

as permitted by Rule 15(a)(1). Instead, he elected to respond to Defendants’ motion to dismiss,2

and the time for filing an amended complaint as a matter of course has passed. Thus, the court will 

consider his request for leave to amend his complaint under Rule 15(a)(2). 

Rule 15(a)(2) permits a party to amend pleadings only with leave of court or a defendant’s 

written consent. Leave should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). 

Leave to amend, however, is by no means automatic. Addington v. Farmer’s Elevator Mut. Ins. 

Co., 650 F.2d 663, 666 (5th Cir. 1981). “[T]he decision to grant or deny a motion for leave to 

1 The court notes that Supreme Court’s holding in Thompson, confirming that a pretrial detainee may bring Fourth 

Amendment claim under § 1983 for malicious prosecution was decided on April 4, 2022, and the alleged falsified 

affidavit in this case was made on April 13, 2022, thereby putting Defendants on notice of the alleged clearly 

established law at the time of the alleged conduct. See Thompson, 142 S. Ct. 1332 (2022). 

2 Plaintiff does not attach a proposed amended complaint to suggest how he would overcome the deficiencies identified 

herein. 

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amend lies within the sound discretion of the trial court. Id. In considering whether to grant a 

plaintiff’s request for leave to amend a complaint, the court may consider factors such as “undue 

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 

by amendments previously allowed, undue prejudice to the opposing party, and futility of 

amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).

Here, there appears to be no undue delay as Plaintiff requested the opportunity to amend 

in his response to Defendants’ 12(b)(6) motion. Moreover, there is no apparent bad faith or dilatory 

motive in Plaintiff’s request and Defendants have not identified any such motivation. Indeed, 

Plaintiff’s request appears to be motivated by his desire to cure any insufficient allegations, and,

with respect to his failure to train claims, it is plausible that the problems identified herein could 

be cured with additional factual allegations. Thus, the court recommends that Plaintiff be granted 

to leave to amend. 

CONCLUSION

For these reasons, the court RECOMMENDS that Defendants’ motion be DENIED with 

respect to Defendants’ request to dismiss Plaintiff’s Fourth Amendment claims as to Defendant 

Officer Thomas. The court RECOMMENDS that the motion be GRANTED as to any Fourth 

Amendment claims asserted against Defendant Officer Utley, Defendant Officer Sipes, and 

Defendant Officer Black and that those claims be dismissed with prejudice. The court 

RECOMMENDS that Defendants’ motion be GRANTED with respect to Plaintiff’s failure to 

train claims against Defendant Chief Toler and the City of Tyler. The court FURTHER 

RECOMMENDS, however, that Plaintiff be granted leave to amend his failure to train claims. 

Finally, the court notes that discovery in this action was stayed pursuant to Carswell v. 

Camp, 54 F.4th 307 (5th Cir. 2022). (Doc. No. 14.) However, as discussed herein, Defendants’ 

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17

assertion of qualified immunity, as presented, is meritless. Moreover, as Defendants have failed to 

file a 12(b)(6) motion that addresses all of Plaintiff’s asserted claims, there is no basis to stay 

discovery as to the claims not addressed in Defendants’ motion. Thus, the court RECOMMENDS

that the stay of discovery be lifted in this case. 

Within fourteen days after receipt of the Magistrate Judge’s Report, any party may serve 

and file written objections to the findings and recommendations contained in the Report. A party’s 

failure to file written objections to the findings, conclusions, and recommendations contained in 

this Report within fourteen days after being served with a copy shall bar that party from de novo

review by the district judge of those findings, conclusions, and recommendations and, except on 

grounds of plain error, from appellate review of unobjected-to factual findings and legal 

conclusions accepted and adopted by the district court. Douglass v. United States Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996).

So ORDERED and SIGNED this 12th day of September, 2023.

Case 6:23-cv-00245-JDK Document 16 Filed 09/12/23 Page 17 of 17 PageID #: 119