Case: 17-50937   Document: 00514867808       Page: 1   Date Filed: 03/11/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                   No. 17-50937
                                                                         FILED
                                                                   March 11, 2019
                                                                    Lyle W. Cayce
KYLE RAY SHAW,                                                           Clerk

             Plaintiff–Appellee,

v.

DWAYNE VILLANUEVA, in his Individual and Official Capacity as County
Sheriff; ROBERT C. EBROM, JR., in his Individual and Official Capacity as
Chief Deputy Sheriff,

             Defendants–Appellants.


                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      This qualified-immunity appeal arises from a political feud in Karnes
County, Texas, ground zero for the Eagle Ford Shale oil boom. Squabbling, both
personal and political, among county officials and activists led to Kyle Shaw’s
arrest. Shaw sued, claiming that County Sheriff Dwayne Villanueva and Chief
Deputy Sheriff Robert Ebrom, among others, had conspired to violate his civil
rights.
      The issue is simply stated: Did the district court err in denying qualified
immunity to Villanueva and Ebrom? We answer yes given the bare-bones
nature of Shaw’s allegations. The Supreme Court is no-nonsense about
pleading specificity requirements: “Threadbare recitals of the elements of a
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                                      No. 17-50937
cause of action, supported by mere conclusory statements, do not suffice.” 1
Shaw complains he is entitled to relief. But Shaw’s complaint does not show it.
       We REVERSE.
                                             I
       This legal dispute began as a political one. Kyle Shaw’s wife was elected
Karnes County Judge. 2 During her tenure, she voiced strong opinions about
controversial governance issues roiling the county. In response, a group of
sitting and former public officials and activists formed the Karnes County
Patriots. Their “collective mission,” Shaw asserts, “was to oust Judge
Shaw . . . and secure the election of Sheriff Villanueva.” Then, she lost her
Democratic primary and resigned.
       A few months later, former Sheriff Bobby Mutz accused Kyle Shaw of
harassment. In his “Voluntary Statement,” Mutz alleged that Shaw harassed
him in the pick-up line at Falls City Elementary School. Specifically, Mutz says
that Shaw “roll[ed] his window down halfway,” “put his fingers in a gun,” and
shot at him—presumably gesticulating—several times. All while Mutz’s
granddaughter was in the car.
       Based on this, Deputy Sheriff Phillips prepared a probable-cause
affidavit for criminal harassment. The affidavit largely mirrored Mutz’s
statement. A week later, Deputy Phillips submitted the probable-cause
affidavit to Justice of the Peace David Sotelo, procuring an arrest warrant for
Shaw. Deputy Morin arrested Shaw the next week.
       In the two weeks between Mutz’s original complaint and Shaw’s arrest,
no one from the Sheriff’s Department interviewed witnesses or followed up



       1Ashcroft v. Iqbal, 

, 678 (2009).
       2Often described as the chief executive officer of county government, county judges in
Texas wield an array of judicial and administrative powers, such as overseeing budgets and
presiding over commissioners courts, the county’s policymaking body.
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                                          No. 17-50937
with Mutz. After considering the allegations against Shaw, the Karnes County
grand jury no-billed the case. The charges were dropped.
       Shaw then brought several claims, but this appeal deals only with three:
§ 1985, false arrest, and conspiracy to violate § 1983. Shaw sued Karnes
County and five individual defendants:
             • Dwayne Villanueva (Karnes County Sheriff);
             • Robert C. Ebrom, Jr. (Karnes County Chief Deputy Sheriff);
             • James Troy Phillips (another Karnes County Deputy Sheriff);
             • David Morin (same); and
             • Bobby Mutz (former Karnes County Sheriff).
       Most Defendants moved to dismiss. 3 The magistrate judge partly agreed,
believing that Phillips and Morin were entitled to qualified immunity but not
Villanueva and Ebrom. The district court agreed, adopting the magistrate
judge’s factual findings and legal conclusions. Villanueva and Ebrom appealed,
asserting that qualified immunity should shield them too.
                                                 II
       This appeal reaches us at the motion-to-dismiss stage. To survive a
motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” 4 In
reviewing, “[w]e accept all well pleaded facts as true and view them in the light
most favorable to the plaintiff.” 5 But we don’t defer to the lower court’s legal
conclusions. Instead, a plaintiff must plead facts reasonably supporting the
legal conclusions. 6




       3   Only Mutz, who no longer held office, did not join that motion.
       4   Phillips v. City of Dall., 

, 775–76 (5th Cir. 2015) (quoting 

).
       5   Heaney v. U.S. Veterans Admin., 

, 1217 (5th Cir. 1985).
       6   Gonzalez v. Kay, 

, 603 (5th Cir. 2009) (quoting 

).
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                                      No. 17-50937
       We have interlocutory jurisdiction over qualified-immunity issues that
turn solely on questions of law. 7 When a defendant asserts qualified immunity,
the plaintiff bears the burden of pleading facts that demonstrate liability and
defeat immunity. 8 The plaintiff must show “(1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” 9 And vicarious liability doesn’t apply to
Bivens and § 1983 suits. 10 So each official must have independently violated
the nonmovant’s rights. 11
                                            III
       Villanueva and Ebrom argue that since the court granted Phillips and
Morin qualified immunity, they should be immune too. They insist that Shaw’s
allegations are merely conclusory. Plus, they emphasize the magistrate’s
finding that the arrest warrant wasn’t tainted.
       In response, Shaw reiterates his allegation that Villanueva and Ebrom
had him arrested purely because of their political feud with his wife. What’s
more, Shaw says that Deputy Phillips added false information to the probable-
cause affidavit.
                                             A
       We first consider whether Villanueva and Ebrom are immune since
Justice of the Peace Sotelo issued an arrest warrant. Generally, if an
independent intermediary, such as a justice of the peace, authorizes an arrest,
then the initiating party cannot be liable for false arrest. We recently explained
this in McLin: “[T]he intermediary’s decision breaks the chain of causation for



       7 

–72.
       8 Zapata v. Melson, 

, 485 (5th Cir. 2014); McClendon v. City of Columbia,

, 323 (5th Cir. 2002) (en banc).
       9 Whitley v. Hanna, 

, 638 (5th Cir. 2013) (cleaned up).
       10 

.
       11 See 

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                                        No. 17-50937
false arrest . . . .” 12 In fact, the initiating party can even be malicious. That
alone still won’t overcome the independent-intermediary doctrine. We held
that 30-plus years ago in Hand. 13 And we reiterated it in 2016 in Buehler. 14
We also elaborated in Buehler that the doctrine applies even if the arrestee
was never convicted. 15
       True, there is an exception to the doctrine. Under McLin, if the plaintiff
shows that the defendant tainted the intermediary’s decision-making process,
the defendant can be liable. 16 But the plaintiff has to show that the defendant
maliciously withheld relevant information or otherwise misdirected the
intermediary. 17 In McLin, the plaintiff alleged a series of collective and
individual meetings, specific plots to pursue criminal charges, and various
flawed arrest-warrant drafts. 18
       Here, the independent-intermediary doctrine applies, but the exception
doesn’t.




       12 McLin v. Ard, 

, 689 (5th Cir. 2017) (quoting Deville v. Marcantel, 

, 170 (5th Cir. 2009)).
       13 Hand v. Gary, 

, 1427 (5th Cir. 1988) (“[E]ven an officer who acted with

malice in procuring the warrant . . . will not be liable if the facts supporting the warrant . . .
are put before an impartial intermediary such as a magistrate or a grand jury, for that
intermediary’s independent decision breaks the causal chain and insulates the initiating
party.” (cleaned up)).
       14 Buehler v. City of Austin, 

, 555 (5th Cir. 2016) (applying the

independent-intermediary doctrine where the grand jury found probable cause).
       15 

nn.4–5 (“Our precedents have applied [the independent intermediary

doctrine] even if the independent intermediary’s action occurred after the arrest, and even if
the arrestee was never convicted of any crime.”).
       16 

.
       17 Id.; see also 

–55 (“An independent intermediary’s probable

cause finding does not protect law enforcement officials whose malicious motive leads them
to withhold any relevant information, or otherwise misdirect the magistrate or the grand jury
by omission or commission.” (cleaned up)).
       18 

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                                         No. 17-50937
       Yes, Mutz’s statement was false. 19 Contrary to the statement, Shaw was
not even at Falls City Elementary School on the date alleged. Still, that doesn’t
establish that Villanueva or Ebrom knew Mutz was lying. Nor does it show
that their subordinates knew Mutz was lying when they prepared the affidavit.
And Shaw fails to allege any other facts that show Villanueva or Ebrom
misdirected Justice of the Peace Sotelo. Unlike in McLin, Shaw’s allegations
come up short.
       Rather, they strike us as similar to the skeletal allegations in Iqbal. 20
There, Iqbal alleged that Ashcroft “knew of, condoned, and willfully and
maliciously agreed to” violate Iqbal’s constitutional rights. 21 Iqbal also alleged
that Ashcroft was the “principal architect” of an invidious policy of violating
prisoners’ constitutional rights. 22 But the Supreme Court held that, by
themselves, these were simply bald allegations. 23
       Consider also our unpublished opinion from this year in Curtis. 24 There,
the plaintiff’s taint allegations failed at the motion-to-dismiss stage, the same
stage as here. The plaintiff never “allege[d] that the Appellees deceived the
[intermediary] or withheld material information from it.” 25 Instead, the
allegations were just bare assertions. And so we affirmed the district court’s
decision to grant qualified immunity. 26
       Shaw’s unadorned allegations are similarly conclusory. He has pleaded
no specific facts showing that Villanueva and Ebrom misdirected Sotelo into
issuing the arrest warrant. And so he has not established the exception to the

       19   Again, we are at the motion to dismiss stage where we assume all well-pleaded facts
are true.
       20 

(2009).
       21 

       22 

at 681.
       24 Curtis v. Sowell, No. 18–20164, 

(5th Cir. Feb. 15, 2019).
       25 

       26 

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                                       No. 17-50937
independent-intermediary doctrine. In other words, his allegations are all
broth and no beans.
       Finally, Shaw contends that Deputy Phillips doctored the complaint
affidavit because it contained two unfavorable details absent from Mutz’s
statement. But that’s irrelevant here. The Supreme Court held in Iqbal that
“vicarious liability is inapplicable to Bivens and § 1983 suits.” 27 And thus in
deciding qualified immunity for Villanueva and Ebrom, we do not concern
ourselves with Phillips. 28 Besides, Shaw has not appealed Phillips’ qualified
immunity.
       In sum, the independent-intermediary doctrine applies, meaning
Villanueva and Ebrom are entitled to qualified immunity from Shaw’s false-
arrest claim.
                                               B
       We next turn to Shaw’s claim that Villanueva and Ebrom violated 42
U.S.C. § 1985 and conspired to violate 42 U.S.C. § 1983.
       For a § 1985 claim, Shaw must allege that Villanueva and Ebrom (1)
conspired; (2) for the purpose of depriving, either directly or indirectly, Shaw
of the equal protection of the laws, or of equal privileges and immunities under
the laws; and (3) took or caused action in furtherance of the conspiracy; which
(4) injured Shaw or deprived him of his rights or privileges as a United States
citizen. 29
       Shaw’s threadbare assertions fall short of the sort of well-pleaded facts
that would allow us to draw the reasonable inference that Appellants are liable
for violating § 1985. As discussed above, Shaw has failed to allege facts to


       27   

.
       28   And in any event, these allegations do not appear in Shaw’s complaint. At this stage
of litigation, we can only consider what is in the complaint.
         29 42 U.S.C. § 1985(3); Carpenters v. Scott, 

, 828–29 (1983); Griffin v.

Breckenridge, 

, 102–03 (1971).
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                                       No. 17-50937
satisfy element four, an actual deprivation of his rights. He alleges no specific
facts showing that Villanueva and Ebrom themselves acted in furtherance of a
conspiracy to violate his civil rights—though he has lots to say about what
Phillips, Morin, and other subordinates did. In short, Shaw’s complaint, read
in its entirety, is replete with conclusory allegations but devoid of specific facts
(or at least devoid of specific facts that are not inextricably bound up with legal
conclusions). Shaw thus cannot establish a § 1985 conspiracy claim.
       As for his § 1983 conspiracy claim, we explained in our 1990 case
Pfannstiel 30 that such claims are unique. The plaintiff must not only allege
facts that “establish (1) the existence of a conspiracy involving state action,”
but also “(2) a deprivation of civil rights in furtherance of the conspiracy by a
party to the conspiracy.” 31 No deprivation, no § 1983 conspiracy. But again,
Shaw asserts legal conclusions—that Villanueva and Ebrom deprived him of
his civil rights—but no well-pleaded facts supporting those conclusions. Again,
naked allegations or legal conclusions masquerading as something more will
not thwart dismissal. As pleaded, Shaw’s conspiracy-to-violate-§ 1983
allegations, unsupported by sufficient factual content, are insufficient to state
a plausible claim for relief.
                                             IV
       Post-Iqbal, formulaic recitations or bare-bones allegations will not
survive a motion to dismiss. Given the thinness of Shaw’s allegations,
Villanueva and Ebrom are entitled to qualified immunity. We REVERSE.




       30Pfannstiel v. City of Marion, 

, 1187 (5th Cir. 1990), abrogated on other
grounds by Martin v. Thomas, 

(5th Cir. 1992).
      31