Case: 18-20155      Document: 00514883385         Page: 1    Date Filed: 03/21/2019




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

                                                                                  FILED
                                                                              March 21, 2019
                                      No. 18-20155
                                                                               Lyle W. Cayce
                                                                                    Clerk
LESLIE W. SHIPMAN, also known as in error as Lester W. Shipman,

               Plaintiff - Appellant

v.

SHERIFF DONALD SOWELL; SHERIFF TOMMY GAGE;
JOSEPH SCLIDER; DAVID COOK; ALTON NEELY; TUCK MCLAIN;
GRIMES COUNTY; MONTGOMERY COUNTY,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16–CV–692


Before JONES, HAYNES, and OLDHAM, Circuit Judges
EDITH H. JONES, Circuit Judge:*
       This is an appeal of the district court’s dismissal of multiple claims
brought by the Appellant under 42 U.S.C. § 1983 and state law for what he
asserts was an unjustifiable investigation and prosecution, combined with
seizure of vehicles associated with his attempt at conducting an auto auction.
For the following reasons, the district court’s judgment is AFFIRMED.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-20155
                                        I.
      Leslie Shipman and law enforcement officers in Montgomery and Grimes
counties, Texas, are well-acquainted with one another.           Officers in the
“Montgomery County Auto Theft Task Force” (the “Task Force”), which was
operated jointly by the Montgomery and Grimes county sheriffs’ departments,
suspected that Shipman was selling stolen vehicles out of his auto body shop.
Shipman accuses the police of having a vendetta against him. After multiple
run-ins with local police in 2013–14, including arrests and citations for offenses
related to improperly selling or transporting vehicles, Shipman decided to sell
his remaining inventory and move out of town. When Shipman, his business
partner Jerry Williams, and an auctioneer named Israel Curtis (whose license
had lapsed) organized a car auction in June 2015, the Task Force took notice.
They suspected that Shipman “did not have proper title paperwork for the
vehicles” he planned to sell, partly because prior police reports had indicated
that Shipman was dealing vehicles without proper titles.
      After a drive by the property confirmed that “numerous vehicles at
[Shipman’s] shop were titled in third party names,” law enforcement requested
a warrant to search the property. A Grimes County Magistrate Judge found
probable cause to suspect that Shipman and his companions were conducting
an unlicensed auction and illegally selling vehicles without proper paperwork.
After the auction began, authorities executed the warrant and seized fifty-six
vehicles and an assortment of paperwork from Shipman’s auto shop. Shipman
was subsequently indicted by a Texas grand jury for engaging in organized
criminal activity by tampering with government records in violation of Texas
Penal Code §§ 37.10(a) and 71.02(a)(13).
      Shipman responded by filing a federal case against the Task Force
members and both counties, seeking damages under § 1983 for violations of his
First, Fourth, and Fourteenth Amendment rights and state tort violations.
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                                  No. 18-20155
While Shipman’s federal suit was pending, the state criminal case was resolved
by his guilty plea in state court to the lesser included charge of selling a vehicle
without a license in violation of Texas Transportation Code § 501.109, a Class
C Misdemeanor. When the state court accepted Shipman’s plea, it also held a
hearing to facilitate the return of the seized vehicles.       As the defendants
acknowledge, no paperwork problems were found to have existed with respect
to the seized vehicles, but the hearing extensively covered issues of uncertain
ownership of many of the vehicles.
      We have attempted to identify the precise claims raised by Shipman in
his federal complaint, which alleged that several county officials violated his
rights before and after the June 27 raid in a variety of ways:
      •     First, Shipman alleged that Grimes County District
      Attorney Tuck McLain violated his First Amendment rights by
      seeking the grand jury indictment against him in retaliation after
      Shipman’s counsel published a blog post accusing the officials of
      misconduct. Shipman accused McLain of violating his Fourteenth
      Amendment rights by selectively prosecuting Shipman even
      though he knew the case was meritless; by advising the Task Force
      not to return Shipman’s business records; and by instructing his
      staff to discriminate against Shipman’s trial counsel by not
      “offer[ing] deferred adjudication to [his] clients.”
      •     Second, Shipman alleged that the commander of the task
      force, Montgomery County officer Joseph Sclider, violated his
      Fourth and Fourteenth Amendment rights by making false
      statements to the magistrate judge to obtain the search warrant;
      by falsely stating on local TV suggesting that the vehicles seized
      in the raid may have been stolen; and by coercing a witness into
      stating that he had not given the men permission to sell his car.
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                                 No. 18-20155
      •     Third, Shipman alleged that Grimes County Sheriff Donald
      Sowell violated his Fourth Amendment rights by preventing the
      return of the vehicles and records “to prevent Mr. Shipman from
      financing his criminal defense and his civil litigation,” even though
      the vehicles had “no evidentiary value.” He also claimed that
      Sowell ratified misconduct by Sclider and the Task Force.
      •     Fourth, Shipman alleged that Montgomery County Sheriff
      Tommy Gage violated his Fourth Amendment rights by never
      investigating Sclider’s alleged misconduct after Shipman’s counsel
      sent Gage a letter notifying him about the misconduct, and by
      failing to supervise or train the Task Force officers.
      •     Finally, Shipman alleged state law tort claims including,
      inter alia, slander, tortious interference, and conspiracy.
The Defendants moved to dismiss Shipman’s case for failing to state a claim
under Federal Rule of Civil Procedure 12(b)(6). The district court granted the
motion to dismiss, and Shipman timely appealed to this court.
      The district court held that Shipman failed to state plausible claims
under the First and Fourteenth Amendments; his Fourth Amendment claims
were barred by the Supreme Court’s decision in Heck v. Humphrey, 

, 

(1994); and his state law tort claims were barred by the
Texas Tort Claims Act (“TTCA”).
                                       II.
      This court reviews a district court’s dismissal of a claim de novo. United
States ex rel. v. Dow Chem. Co., 

, 328 (5th Cir. 2001) (citation
omitted). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s
complaint must “contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 

,
678, 

, 1949 (2009) (internal quotation marks and citation
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                                  No. 18-20155
omitted). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” 

In short,
although a complaint “does not need detailed factual allegations,” it
nevertheless must contain factual allegations that, when assumed to be true,
“raise a right to relief above the speculative level.” Cuvillier v. Taylor, 

, 401 (5th Cir. 2007) (internal quotation marks and citation omitted).
      We note at the outset that some aspects of Shipman’s appellate briefing
fail to provide the necessary specificity, such as which defendant committed
which act. Nothing at all, for instance, is written about defendants Neely or
Cook. Any claims against unnamed defendants, Neely and Cook are therefore
waived. See Nichols v. Enterasys Networks, Inc., 

, 190 (5th Cir.
2007) (“Where analysis is so deficient, this court has considered the issue
waived for inadequate briefing.”) (citation omitted). The briefing about the
legal or factual basis for the liability of each County is conclusional and
inadequate, consequently the claims against Montgomery and Grimes County
are waived. Liability based on actions of “coconspirators” is referenced only in
Shipman’s reply brief and is therefore waived. Finally, although Shipman’s
brief on appeal seems to argue for several pages a claim for malicious
prosecution under the Fourth Amendment, no such claim is actually stated in
the Third Amended Complaint and in any event no such claim exists in federal
law. Albright v. Oliver, 

, 267, 

, 810–11 (1994).
                                        III.
      This court will examine each of Shipman’s preserved claims in light of
the district court’s decision, applicable Rule 12(b)(6) standards, and,
importantly, his exact allegations in the Third Amended Complaint, which are
somewhat different from his assertions in this court.




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                                 No. 18-20155
      A. First Amendment Claim
      Shipman alleges that the Grimes County District Attorney Tuck McLain
violated his First Amendment rights by seeking a grand jury indictment
against him in retaliation for Shipman’s counsel’s publication of a blog post
criticizing local law enforcement. The First Amendment prohibits government
officials from taking adverse action against citizens in retaliation for engaging
in protected speech. Keenan v. Tejeda, 

, 258 (5th Cir. 2002).
Keenan also holds that to prove actionable retaliation, the plaintiff must
additionally surmount pleading the elements of common law malicious
prosecution. 

As noted above, Shipman’s pleadings never undertook
the burden of pleading facts to support malicious prosecution, nor could they
because of his guilty plea.
      Further, although Shipman’s counsel criticized local law enforcement
and McLain sought to indict Shipman afterward, free-speech retaliation claims
under the First Amendment require the plaintiff to show more than that two
events occurred in sequence. A plaintiff must allege some causal link between
the events that, if proven, would establish a prima facie claim on the face of
the complaint.   See 

, 129 S. Ct. at 1949.       Shipman,
however, relies wholly on conclusory statements and fails to allege facts
creating a causal link between his lawyer’s statements and the District
Attorney’s decision to seek an indictment.      If anything, the Task Force’s
decision to seek a search warrant before Shipman’s counsel published his
statement cuts against Shipman’s retaliatory-prosecution theory.
      A final debilitating feature of this claim is that as the prosecutor,
McClain is shielded by absolute immunity. Hartman v. Moore, 

,
261–62, 

, 1704 (2006) (citation omitted).
      In sum, because Shipman’s First Amendment claim did not meet the
Iqbal standard, the district court did not err in dismissing this claim.
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                                  No. 18-20155
      B. Fourteenth Amendment Claim
      Shipman alleges that McLain violated his Fourteenth Amendment right
to Equal Protection by selectively prosecuting him even though McLain
allegedly knew that the charges against Shipman were meritless, and by
refusing to “offer [Shipman] deferred adjudication.” Shipman points to the
favorable plea agreement entered by the trial court, in which an assistant DA
dismissed organized crime charges against him in exchange for Shipman’s
pleading guilty to one Class C Misdemeanor count, as evidence that the
District Attorney’s indictment was meritless.
      We agree with the district court’s analysis of Shipman’s pleading on this
claim. Selective prosecution sounds as an equal protection violation of the
Fourteenth Amendment and as such prohibits prosecutions based on “an
unjustifiable standard such as race, religion, or other arbitrary classification.”
United States v. Armstrong, 

, 464, 

, 1486 (1996)
(internal quotation marks and citation omitted); see also Beeler v. Rounsavall,

, 817 (5th Cir. 2003). Shipman cannot claim membership in a
protected class. To the extent Shipman alleged that the prosecutor picked him
out to prevent his exercise of constitutional rights, Bryan v. City of Madison,

, 277 (5th Cir. 2003), he has offered no facts, as opposed to
conclusory opinions, about McLain’s motivation. And to be clear, we harbor
doubts about the theory that would tie retaliation for actions taken by
Shipman’s attorney to a violation of Shipman’s rights, but we assume arguendo
that such a theory of retaliation is cognizable.
      Of course, as has been noted, prosecutors enjoy absolute immunity from
§ 1983 suits based on all actions taken within the scope of their prosecutorial
duties. Kalina v. Fletcher, 

, 123–29, 

, 506–09 (1997).
Shipman argues that absolute immunity does not bar his Fourteenth
Amendment claim because McLain “advised and assisted the [Task Force]
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                                  No. 18-20155
during the investigative phase” of this case. The defendants counter that
absolute immunity applies to all of McLain’s actions in “initiating,
investigating, and pursuing a criminal prosecution.”
      This court need not speculate on the limit of prosecutorial immunity,
however, because even if Shipman’s position were correct and absolute
immunity did not apply, this Fourteenth Amendment claim still fails for much
the same reason as his First Amendment claim: he does not articulate
sufficient facts that, taken as true, plausibly establish a selective-prosecution
claim. Shipman does not make factual allegations to support his claim that
McLain knew that the charges were allegedly meritless, other than pointing to
the plea agreement he eventually accepted. Nor does he allege any facts that,
taken as true, would establish a causal connection between McLain’s actions
and Shipman’s characterization of McLain’s motives. See, e.g., 

(“It must be shown that selective enforcement was deliberately based
on an unjustifiable standard such as race, religion or other arbitrary
classification.”) (internal quotation marks and citation omitted).
      Shipman also offers a stigma-plus infringement theory to support his
Fourteenth Amendment claims. The only defendant Shipman associates with
this claim by name is Sclider. Thus, the court’s analysis of Shipman’s claim
will focus solely on Sclider’s conduct. To prevail on a stigma-plus-infringement
claim, a plaintiff must show that “a state actor has made concrete, false
assertions of wrongdoing on the part of the plaintiff.” Blackburn v. City of
Marshall, 

, 936 (5th Cir. 1995) (emphasis original) (citation
omitted). Shipman’s claim centers around statements Sclider made to a local
television reporter after the raid, in which Sclider described the legal status of
the vehicles seized in the raid under Texas law and said, “at this point we are
going to have to find the rightful owner of these vehicles.” Sclider merely
provided an accurate summary of the law, however, and did not make any
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                                       No. 18-20155
concrete, false assertion that meets the standard set forth in Blackburn. The
district court correctly dismissed Shipman’s Fourteenth Amendment claims.
       C. Fourth Amendment Claims.
       A significant portion of Shipman’s claims stems from alleged violations
of his Fourth Amendment rights. It is helpful to separate these claims into
two categories: the claim alleging an unreasonable search and initial seizure
of documents and vehicles from his autobody shop, and the claim alleging an
unreasonable, sixteen-month continued seizure of his vehicles and business
paperwork. The district court held that both categories were barred by Heck
v. Humphrey.
       Heck forbids a plaintiff who has been convicted of a crime from launching
“a collateral attack on the conviction through the vehicle of a civil suit.” 

, 114 S. Ct. at 2371 (internal quotation marks and citation
omitted).     Thus, this court has interpreted Heck to mean that “[w]hen a
plaintiff alleges tort claims against his arresting officers, the district court
must first consider whether a judgment in favor of the plaintiff would
necessarily     imply      the    invalidity       of   his   conviction     or    sentence.”
DeLeon v. City of Corpus Christi, 

, 652 (5th Cir. 2007) (quoting
Hainze v. Richards, 

, 798 (5th Cir. 2000)). 1




       1 In DeLeon, this court clearly took the position that Heck, as viewed by Justice Scalia,
is “foremost …a section 1983 decision, narrowing the reach of that civil-rights statute by
reference to the law of tort in 

. Further, this court has extended Heck,
in DeLeon, to a case involving deferred adjudication and to a person no longer in custody and
unable to obtain habeas relief. Randell v. Johnson, 

(5th Cir. 2000). Both parties
assume Heck could apply here even though Shipman’s crime of conviction was punishable
only by a fine and thus may not have placed him “in custody.” See Tex. Penal Code Ann.
§ 12.23; see also 

McClish v. Nugent, 

, 1251 n.19 (11th Cir. 2007).
They disagree only about whether Heck’s standards are met in this case. Accordingly, we
have no occasion to consider, because Shipman did not raise the point, whether his conviction,
which carries a fine but no potential for imprisonment, renders Heck inapplicable.
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                                       No. 18-20155
       In this case, Shipman pled guilty to a single count of selling a vehicle
without a proper license. Shipman’s Fourth Amendment unreasonable search
claim against Sclider alleges that the Task Force lacked probable cause to
search his property and seize vehicles, but the Task Force’s suspicion that
Shipman was selling vehicles without proper title paperwork—a lesser offense
to which he pled guilty—is precisely one of the reasons for which a search
warrant was issued. In other words, Shipman’s conviction for selling vehicles
without proper paperwork is inextricably intertwined with his claim that the
Task       Force   lacked    probable      cause     to    raid      his   vehicle   auction.
Cf. Connors v. Graves, 

, 377 (5th Cir. 2008) (“Connors cannot
prevail on his claim for invalid seizure unless he proves that the officers lacked
probable cause.”) (citation omitted).          Thus, Shipman’s Fourth Amendment
claim against Sclider is barred by Heck. 

any event, Shipman’s Fourth Amendment allegations fail because
Sclider’s affidavit demonstrated probable cause to believe that an unlicensed
auction of vehicles without adequate paperwork was about to occur. “Probable
cause exists when the totality of the facts and circumstances within a police
officer’s knowledge at the moment of the [action] are sufficient for a reasonable
person to conclude that the suspect had committed or was committing an
offense.” Cuadra v. Houston Indep. Sch. Dist., 

, 813 (5th Cir. 2010)
(internal citation omitted).         In addition to the investigative facts recited
hereinabove, Sclider reported in his search warrant affidavit the actual
complaint of a person who alleged that Shipman was selling vehicles without
proper authorization.



       2 We do not hold that Heck bars a 1983 claim for every search and seizure that results
in some ultimate criminal conviction. One can envision a situation where the scope of the
search far exceeded the claim of probable cause or the eventual crime of conviction. See, e.g.,
Butler v. Compton, 

(10th Cir. 2007). This is not such a case.
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                                      No. 18-20155
       Shipman also alleges Fourth Amendment claims against Grimes County
Sheriff Donald Sowell for refusing to return his vehicles and office paperwork
for more than a year. This claim is distinct from his unreasonable-search claim
because it challenges the ongoing detention of property that occurred after the
search and, if actionable, does not necessarily impugn Shipman’s conviction.
We assume arguendo that Heck does not bar this claim. See Bush v. Strain,

, 498 (5th Cir. 2008) (holding that Heck does not bar claims for
conduct that is “temporally and conceptually distinct” from the basis of the
plaintiff’s conviction).
       Nevertheless, the unreasonable detention claim cannot survive the
heightened pleading standards established by Iqbal. The vehicles in question
were lawfully seized pursuant to a valid warrant and remained in law
enforcement custody only until the criminal case was adjudicated. 3 Shipman
argues that the trial court’s dismissal of the most serious offenses against him
proves that Sowell lacked probable cause to continue holding his vehicles after
the raid.    The Supreme Court, however, has held that courts should not
“evaluate probable cause in hindsight, based on what a search does or does not
turn up.” Florida v. Harris, 

, 249, 

, 1059 (2013)
(citation omitted).     The same principle must apply to criminal trials—the
dismissal of some charges does not prove that a search or seizure was
unreasonable when it occurred.
       Because Shipman’s allegations, taken as true, are barred by Heck or fail
to show a plausible claim for improper seizure or unconstitutional detention,



       3 The plausibility of Shipman’s unreasonable detention claim is further compromised
by his apparent failure to formally move for the release of the seized vehicles during the
period of their detention pursuant to Texas law. Cf. In re Cornyn, 

, 333 (Tex.
App. 2000) (holding that Chapter 18 of the Texas Code of Criminal Procedure provides
procedures for parties who believe their property was seized unreasonably to seek relief from
the magistrate who issued the search warrant).
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                                 No. 18-20155
the district court’s dismissal of the Fourth Amendment claims is affirmed.
Further, because Shipman’s related claims against Montgomery County
Sheriff Tommy Gage for failing to train and supervise his subordinates are
predicated on the insufficient allegations against the search warrant and
seizure, they also fail.
        D. State Law Claims
        Shipman alleged a smattering of state law tort claims against the
Defendants, which the district court dismissed with prejudice. Shipman has
chosen to raise only his slander and tortious interference claims on appeal.
Shipman alleges that Sclider “and other [Task Force] officers” committed
slander and tortious interference when they contacted Shipman’s customers
and informed them that they may not need to make their payments on the
vehicles because the vehicles might have been stolen. Because “other [Task
Force] officers” is a vague description that does not specify any defendants
individually, this court analyzes Shipman’s tort claims as applied to Sclider
only.
        The district court dismissed the tort claims under the TTCA, which
requires dismissal of a suit that the plaintiff could have brought against the
government but instead “filed against a[] [government] employee . . . based on
conduct within the general scope of [his] employment.” TEX CIV. PRAC. & REM.
CODE ANN. § 101.106(f); see 

An employee’s conduct is within
the general scope of his employment if there is “a connection between the
[employee’s] job duties and the alleged tortious conduct.” Wilkerson v. Univ. of
N. Tex., 

, 160 (5th Cir. 2017) (internal quotation marks and
citation omitted). As alleged, Sclider informed Shipman’s customers about the
Task Force’s suspicions as part of the Task Force’s broader investigation into
the legality of Shipman’s business activities. Informing the purchasers of
potentially stolen property about an ongoing investigation into the status of
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                                No. 18-20155
that property and about the purchasers’ rights during that investigation is a
manifestly reasonable step for officers to take. Thus, Sclider’s statements to
Shipman’s customers were connected to his job duties as commander of the
Task Force. The district court’s decision to dismiss Shipman’s state law tort
claims under the TTCA was therefore proper.
                                     IV.
      The judgment of the district court is AFFIRMED.




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