Morgan v. Freshour

UNITED STATES DISTRICT COURT September 29, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

COURTNEY MORGAN, DRIVE THRU §

DOC, PLLC, and HOP MEDICAL §

SERVICES, M.D.P.A., §

§

Plaintiffs, §

§

v. § Civil Action No. 6:17-cv-00004

§

SCOTT FRESHOUR, in his official §

capacity as Interim Director of the §

Texas Medical Board, MARY §

CHAPMAN, in her individual capacity; §

and JOHN KAPACZ, in his §

individual capacity, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff Courtney Morgan’s Motion for Leave to File

Plaintiff’s Third Amended Complaint (“Motion”). (Dkt. No. 98). After reviewing the

Motion, the Responses, the Replies, the record, and the applicable law, the Court

GRANTS the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the arrest of Courtney Morgan and the search of his medical

facilities, Hop Medical Services, M.D.P.A. (“Hop Medical”) and Drive Thru Doc, PLLC

(“Drive Thru”) in 2013 under an administrative instanter subpoena. (Dkt. No. 63 at ¶¶ 9–

16, 20–24, 84). The search was authorized by the Texas Medical Board (“Medical Board”)

and led by one of its agents, Mary Chapman, who, in serving the subpoena, received

assistance from John Kopacz, a law enforcement officer with the Texas Department of

Public Safety. (Id. at ¶¶ 5, 16, 27).

After seizing several documents from Morgan’s facilities, some of which were

listed in the subpoena and some of which were not, Chapman and another Medical Board

agent compiled an investigative report. (Id. at ¶¶ 34, 45). Morgan alleges that Chapman

deliberately falsified information in this report. (Id. at ¶¶ 66–70). After receiving the

documents seized and the investigative report, the State of Texas indicted Morgan for

violating Section 162.152 of the Texas Occupations Code (Non-certification of a Pain

Management Clinic). (Id. at ¶ 49). Morgan was arrested and prosecuted in Texas state

court. (Id. at ¶ 50). Morgan moved to suppress the evidence seized from his facilities.

(Id. at ¶ 51). The Texas state court granted the motion to suppress and made findings that

were critical of the Medical Board’s search of Morgan’s facilities and Chapman’s

testimony. (Id. at ¶¶ 57–59).

With this evidence suppressed, the prosecutors filed a motion to dismiss the

charge due to insufficient evidence. (Id. at ¶ 61). The Texas state court granted the

prosecution’s motion and dismissed the charge against Morgan.1 (Id. at ¶ 62).

One year later, Morgan initiated this case by filing an eleven-count Complaint.

(Dkt. No. 1). The Original Complaint listed three plaintiffs—Morgan, Drive Thru, and

Hop Medical—and three Defendants—Scott Freshour,2 Chapman, and Kopacz. (Id. at

1 The factual background is based on the allegations contained in the Second Amended

Complaint, which is currently the operative complaint. (Dkt. No. 62); (Dkt. No. 63).

2 At the time Morgan initiated this action, Scott Freshour was the interim executive

director of the Medical Board. (Dkt. No. 1 at ¶ 7).

¶¶ 4–10). In the Original Complaint, the Plaintiffs alleged that the Defendants violated

their Fourth Amendment right to be free from unreasonable searches and seizures. (Id.

at ¶¶ 70–134). They also alleged under two separate counts that Kopacz is liable to

Morgan for malicious prosecution. (Id. at ¶¶ 43–69). The three Defendants moved to

dismiss the Original Complaint. (Dkt. No. 33); (Dkt. No. 35).

In response, Morgan filed his First Amended Complaint. (Dkt. No. 39). In the

First Amended Complaint, Drive Thru and Hop Medical removed themselves as

Plaintiffs and Morgan removed Freshour as a Defendant. (Id. ¶¶ 4–7). Morgan brought

just two counts in his First Amended Complaint, as compared to the eleven counts in his

Original Complaint. Compare (Id. at ¶¶ 54–95) with (Dkt. No. 1 at ¶¶ 43–134). In these

two counts, Morgan alleged that Kopacz and Chapman are liable to him under 42 U.S.C.

§ 1983 for malicious prosecution. (Dkt. No. 39 at ¶¶ 54–95).

Kopacz and Chapman moved to dismiss Morgan’s First Amended Complaint.

(Dkt. No. 40); (Dkt. No. 42). Morgan opposed dismissal and subsequently moved for

leave to amend. (Dkt. No. 44); (Dkt. No. 45); (Dkt. No. 61). The district court granted

Morgan’s motion for leave, (Dkt. No. 62), and Morgan filed his Second Amended

Complaint. (Dkt. No. 63).

In his Second Amended Complaint, Morgan retains the two counts for malicious

prosecution and adds a third count alleging that Chapman is liable to him under 42 U.S.C.

§ 1983 for abuse of process. (Id. at ¶¶ 71–121). Kopacz and Chapman moved to dismiss

the Second Amended Complaint, which Morgan opposed. (Dkt. No. 64); (Dkt. No. 65);

(Dkt. No. 66); (Dkt. No. 68). The Court denied these motions concluding that Morgan

articulated plausible claims for malicious prosecution and abuse of process and that the

claims were not barred by absolute prosecutorial immunity or qualified immunity. (Dkt.

No. 75 at 8–9). Kopacz and Morgan appealed this decision to the Fifth Circuit. (Dkt. No.

78).

The Fifth Circuit reversed the district court’s denial of Kopacz and Morgan’s

motions to dismiss. Morgan v. Chapman, 969 F.3d 238, 241 (5th Cir. 2020). In its opinion,

the Fifth Circuit agreed with the district court’s finding regarding absolute prosecutorial

immunity, id. at 244, but disagreed with respect to qualified immunity because

“malicious prosecution and abuse of process are not viable theories of constitutional

injury.” Id. at 241. Accordingly, the Fifth Circuit vacated the judgment. Id. at 251.

Notably, the Fifth Circuit, also concluded that “[i]t would not be futile on the merits

for Morgan to pursue an unreasonable search, unreasonable seizure, or due process

claim.” Id. at 250 (emphasis added). The court then “remand[ed] for the district court to

consider amendment and, if necessary, issues of waiver and forfeiture.” Id.

Following the Fifth Circuit’s decision, Morgan moved for leave to amend his

Second Amended Complaint and attached a five-count Proposed Third Amended

Complaint (“Proposed Complaint”). (Dkt. No. 98); (Dkt. No. 98-1). In his Proposed

Complaint, Morgan removed the malicious prosecution and abuse of process claims.

(Dkt. No. 98-1). He replaced those claims with unreasonable search, unreasonable

seizure, and due process claims—claims the Fifth Circuit found not to be futile. (Id. at

¶¶ 74–138). In Counts One and Three of his Proposed Complaint, Morgan seeks to allege

that Kopacz and Chapman are liable to him under 42 U.S.C. § 1983 for violating his Fourth

Amendment right to be free from unreasonable searches. (Id. ¶¶ 74–82, 96–110). In

Counts Two and Four, Morgan seeks to allege that Kopacz and Chapman are liable to

him under Section 1983 for violating his Fourth Amendment right to be free from

unreasonable seizures. (Id. ¶¶ 83–95, 111–23). Morgan states that each of these claims is

analogous to the malicious prosecution claims alleged in his Second Amended

Complaint.3 (Id. at 17, 23). Finally, in Count Five, Morgan seeks to allege that Chapman

is liable to him under Section 1983 for violating his Fourteenth Amendment due process

rights. (Id. ¶¶ 124–38). Kopacz and Chapman oppose Morgan’s motion for leave to

amend for a third time, for the reasons set forth in their separate Responses. (Dkt. Nos.

101, 102). Morgan filed Replies to each. (Dkt. No. 105); (Dkt. No. 106).

3 To the extent Morgan proposes claims that Kopacz and Chapman violated his right to

be free from unreasonable searches and seizures under Article 1, Section 9 of the Texas

Constitution, these claims would futile because there are no causes of action for money damages

for violations of the Texas Constitution. See, e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143,

147 (Tex. 1995) (“We hold there is no implied private right of action for damages arising under

the free speech and free assembly sections of the Texas Constitution.”); Cathcart v. Jones, No. 05-

18-01175-CV, 2020 WL 2214105, at *5 (Tex. App.—Dallas May 7, 2020, no pet.) (recognizing that

Texas law does not recognize state-based constitutional claims); City of El Paso v. Tom Brown

Ministries, 505 S.W.3d 124, 134 n.10 (Tex. App.—El Paso 2016, no pet.) (“[T]here is no private right

of action for damages arising from alleged violations of the Texas Constitution.” (citing Bouillion,

896 S.W.2d at 149)). The Fifth Circuit, in its Morgan decision, did not address whether claims

brought under the Texas Constitution are futile. See Morgan, 969 F.3d at 248–50.

In his Proposed Complaint, Morgan does not allege violations of the Texas Constitution

under separate counts but rather includes such allegations within Counts One and Three. (Dkt.

98-1 at ¶¶ 78–79, 102–03, 105–06). To the extent Morgan intends to assert claims for violations of

the Texas Constitution in his Proposed Complaint, the Court finds that these claims are futile and

DENIES Morgan leave to amend to include them in a Third Amended Complaint.

II. DISCUSSION

A. WAIVER AND FORFEITURE OF FOURTH AMENDMENT CLAIMS

The Court first addresses Chapman’s argument that Morgan waived or, in the

alternative, forfeited the Fourth Amendment unreasonable search and seizure claims

raised in his Proposed Complaint. Chapman does not direct this Court to any legal

authority to support her assertion.4 (Dkt. No. 102 at 2–3). Instead, Chapman points to

statements made by Morgan and the district court to support her waiver argument.5 (Id.

at 2). In support of her forfeiture argument, Chapman points out that Morgan, in his First

and Second Amended Complaints, did not include the Fourth Amendment unreasonable

search and seizure claims contained in his Original Complaint. (Id. at 2–3). Morgan

counters that the Court should not find that he waived or forfeited his Fourth

Amendment claims because, in amending, he was merely altering his legal theories and

4 Although Chapman does not provide any legal authority concerning waiver or

forfeiture, the Supreme Court and the Fifth Circuit have defined both terms, noting that they have

different meanings. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508

(1993) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known

right.’”); United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017) (same).

5 With respect to her waiver argument, Chapman states, in relevant part:

In response to Chapman’s motion to dismiss the Second Amended

Complaint . . . the operative complaint, Morgan observed that he ‘made claims

for §1983 malicious prosecution . . . grounded in a Fourth Amendment

violation, with allegations of the deprivation of [his] Fourth Amendment U.S.

constitutional rights,’ and he specifically conceded that he ‘did not make a

separate independent claim for unreasonable search and seizure. . . .’ The

district court recognized that change in strategy, observing that Morgan’s

operative complaint alleged only ‘two causes of action — malicious prosecution

and abuse of process.’

(Dkt. No. 102 at 2) (citations omitted).

relied on the same allegations of Kopacz and Chapman’s improper conduct to support

these theories. (Dkt. No. 106 at 1–2). The Court agrees with Morgan.

The Fifth Circuit has stated that in determining whether to grant leave to amend,

the Court assesses “whether the proposed amendment (1) was merely proposing

alternative legal theories for recovery on the same underlying facts or (2) would

fundamentally alter the nature of the case.” Mayeaux v. La. Health Serv. & Indem. Co., 376

F.3d 420, 427 (5th Cir. 2004). “Amendments that fall into the former category generally

should be permitted, as they advance Rule 15(a)’s policy of promoting litigation on the

merits rather than on procedural technicalities.” Id. “Amendments that fall into the latter

category, however, may be denied if the circumstances warrant.” Id. Courts in the

Southern District of Texas have generally allowed a plaintiff to amend his complaint to

adjust his legal theory as long as he relies on the same underlying facts to support the

new theory. See, e.g., McCarty v. Bigge Crane & Rigging Co., No. 5:16-CV-268, 2017 WL

10153538, at *2 (S.D. Tex. June 9, 2017) (granting leave to amend when the defendant

conceded “the proposed amendment adds nothing to the facts pleaded in the original

complaint, but rather merely places different labels on the same conduct” (cleaned up));

Garza v. Nationstar Mortg., LLC, No. 7:14-CV-48, 2014 WL 12599350, at *5 (S.D. Tex. Apr.

22, 2014) (granting leave to amend because the amendment sets forth “an alternative legal

theory based on the existing facts” but denying leave to amend with respect to an

“amendment [that] would not rely upon the same underlying facts”); Rangel v. Gonzalez

Mascorro, No. 5:10-cv-104, 2011 WL 13353220, at *1–2 (S.D. Tex. Aug. 19, 2011) (granting

leave to amend to “add causes of action for gross negligence and negligence per se”

because “the contested claims and defenses do not fundamentally alter the nature of the

case, but rather, merely propose a legal theory for recovery on the same underlying

facts”); Valdez v. Capital Mgmt. Servs., LP, No. 1:09-CV-246, 2010 WL 11665010, at *4 (S.D.

Tex. Aug. 20, 2010) (granting leave to amend when “[t]he facts underlying [the]

amendment were provided to the defendants in the first amended complaint; [the

amendment] arises out of the same events that gave rise to this lawsuit; and it merely

adds an alternative statutory theory for recovery” and “the added allegations are not

based upon previously unknown factual assertions”).

Chapman mischaracterizes Morgan’s amendments, classifying them as novel

claims based on new facts when, in reality, they are merely new legal theories predicated on

the same factual allegations made in the prior Complaint. Moreover, she does not contend

that Morgan’s Fourth Amendment claims in his Proposed Complaint are predicated on

different allegations than the claims raised in prior versions of the Complaint. (Dkt. No.

102). Nor does she argue that the allegations in the Proposed Complaint are insufficient

to support a plausible claim for relief. (Id.). Instead, she asserts that Morgan should not

be allowed to bring these claims in a Third Amended Complaint because, in his First and

Second Amended Complaints, he did not include the Fourth Amendment claims

contained in his Original Complaint. (Id. at 2–3).

Morgan notes, however, that in his First Amended Complaint, he merely

“streamlin[ed] his claims” by reducing the number of claims from eleven in the Original

Complaint to two in the First Amended Complaint. (Dkt. No. 98 at 1). He removed the

freestanding Fourth Amendment claims raised in his Original Complaint, but his

remaining malicious prosecution claims in the First Amended Complaint were

predicated on the same allegations that Chapman and Kopacz had violated his Fourth

Amendment rights. (Dkt. No. 1); (Dkt. No. 39). Now, in response to the Fifth Circuit’s

decision in Morgan, he has again altered his legal theories. (Dkt. No. 98-1). Morgan

replaced his malicious prosecution and abuse of process theories with, in part,6 a Fourth

Amendment theory but, critically, relies on the same factual allegations that Kopacz and

Chapman violated his Fourth Amendment rights to support his new theory. (Id.).

Accordingly, the Court finds that Morgan, in his Proposed Complaint, does not

allege claims involving Fourth Amendment violations that were previously waived or

forfeited. Rather, he sets forth new legal theories based on the same allegations of Fourth

Amendment violations contained in the Operative Complaint. With this issue resolved,

the Court now turns to whether it is appropriate to grant Morgan leave to amend under

Rule 15(a) of the Federal Rules of Civil Procedure.

B. WHETHER TO GRANT LEAVE TO AMEND

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, leave to amend should

be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Smith v. EMC

Corp., 393 F.3d 590, 595 (5th Cir. 2004) (“Rule 15(a) requires a trial court to grant leave to

amend freely, and the language of this rule evinces a bias in favor of granting leave to

amend.” (quotations omitted)). “Rule 15(a) evinces a bias in favor of granting leave to

6 In the Proposed Complaint, Morgan also alleges that Chapman violated his Fourteenth

Amendment right to due process under Count Five. (Dkt. No. 98-1 at ¶¶ 124–38). This legal

theory was not set forth in the Operative Complaint. (Dkt. No. 63).

amend.” Life Partners Creditors’ Trust v. Cowley, 926 F.3d 103, 125 (5th Cir. 2019)

(quotations omitted). “A district court should examine . . . five considerations to

determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad

faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments,

4) undue prejudice to the opposing party, and 5) futility of the amendment.” SGK

Properties, L.L.C. v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 944 (5th Cir. 2018) (quotations

omitted). “Absent any of these factors, the leave sought should be ‘freely given.’” Smith,

393 F.3d at 595 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222

(1962)). Indeed, “[a] district court must possess a substantial reason to deny a request for

leave to amend.” Id. (quotation omitted). “However, decisions concerning motions to

amend are entrusted to the sound discretion of the district court.” Id. (quotation omitted).

1. Futility

The main source of contention between the Parties is whether the Proposed

Complaint sets forth futile claims. The Court addresses this factor first.

“Denying a motion to amend is not an abuse of discretion if allowing an

amendment would be futile.” Marucci Sports, L.L.C. v. NCAA, 751 F.3d 368, 379 (5th Cir.

2014). “An amendment is futile if it would fail to survive a Rule 12(b)(6) motion.” Id.

Thus, in determining futility, a court applies “the same standard of legal sufficiency as

applies under Rule 12(b)(6),” namely, “whether in the light most favorable to the plaintiff

and with every doubt resolved in his behalf, the complaint states any valid claim for

relief.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (quotations omitted).

Kopacz and Chapman argue that Morgan’s Fourth and Fourteenth Amendment

claims are futile. (Dkt. No. 101 at 2–4); (Dkt. No. 102 at 1, 3–9). They essentially assert

that, although the Fifth Circuit discussed futility, it remanded to this Court to weigh all

factors for determining whether granting leave to amend is appropriate, including

whether these claims are futile. (Id.). The Court disagrees with this reading of Morgan,

as the Fifth Circuit’s manifest position was that if Morgan added a due process,

unreasonable search, or unreasonable seizure claim, it would not be futile. Morgan, 969

F.3d at 248, 250 (“Accordingly, we consider whether it would be futile for Morgan to add

a due process, unreasonable search, or unreasonable seizure claim,” and “[i]t would not

be futile on the merits for Morgan to pursue [such] claim[s].” (emphasis added)). The

Fifth Circuit notably did not “discuss the other factors, which the district court is better

positioned to address.” Id. at 248 n.6. (emphasis added). The Fifth Circuit remanded the

case to this Court to decide on the remaining factors after concluding that potential Fourth

Amendment unreasonable search and seizure and Fourteenth Amendment due process

claims were not futile. Id. at 241, 250.

In his Proposed Complaint, Morgan seeks to bring these very claims.7 In light of

the Fifth Circuit’s decision, the Court finds that it is not futile to grant leave to amend for

7 Kopacz and Chapman argue that this Court should deny leave to amend because

Morgan’s Fourth and Fourteenth Amendment claims are barred by the statute of limitations.

(Dkt. No. 101 at 2–3; Dkt. No. 102 at 3–6). Chapman also asserts that she is entitled to qualified

immunity. (Dkt. No. 102 at 6–9). It is true that the Fifth Circuit has considered statute of

limitations and qualified immunity defenses when analyzing whether granting leave to amend

would be futile. See Winzer v. Kaufman County, 916 F.3d 464, 471 (5th Cir. 2019) (“The district

court did not abuse its discretion in denying leave to amend because those claims were futile as

barred by the statute of limitations.”); Tuft v. Texas, 544 F. App’x 488, 490 (5th Cir. 2013) (per

(continue)

Morgan to bring unreasonable search and seizure claims under the Fourth Amendment

against Kopacz and Chapman and a due process claim under the Fourteenth Amendment

against Chapman.8

2. Other Factors

The Court next addresses the other factors for determining whether granting leave

to amend is appropriate. These factors are: whether allowing the amendment would

cause undue delay, whether Morgan is seeking to amend in bad faith or has repeatedly

failed to cure deficiencies by previous amendments, and whether granting leave to

amend would result in undue prejudice to Kopacz and Chapman. See SGK Properties,

L.L.C., 881 F.3d at 944. The Court finds these factors weigh in favor of granting leave to

amend.

curiam) (“Tuft’s proposed amendment would be futile in light of the qualified immunity analysis

above.”). Here, however, the Fifth Circuit in Morgan has already concluded that unreasonable

search and seizure claims brought under the Fourth Amendment, and violations of due process

in under the Fourteenth Amendment, are not futile for purposes of determining whether to grant

leave to amend. See Morgan, 969 F.3d at 248–50. That is not to say, of course, that Kopacz and

Chapman cannot raise these defenses once Morgan’s third amended complaint is filed.

8 The Court is mindful that “the law of the case doctrine posits that ordinarily an issue of

fact or law decided on appeal may not be reexamined either by the district court on remand or

by the appellate court on subsequent appeal.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004)

(quotations omitted). “The proscription covers issues [a higher court has] decided expressly and

by necessary implication . . . reflecting the sound policy that when an issue is once litigated and

decided, that should be the end of the matter.” Id. (citation and quotations omitted).

The Court is also mindful that, “[u]nder the mandate rule, a district court must implement

both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit

directives of that court.” In re Abbott, 956 F.3d 696, 710 (5th Cir. 2020) (quotations omitted).

“Absent exceptional circumstances, the mandate rule compels compliance on remand with the

dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by

the appellate court.” Lee, 358 F.3d at 321 (quotations omitted). “In implementing the [Fifth

Circuit’s] mandate, the district court must take into account the appellate court’s opinion and the

circumstances it embraces.” Id. (quotations omitted).

a. Undue Delay

The Court first considers whether granting Morgan leave to amend following the

Fifth Circuit’s decision in Morgan would create undue delay. Chapman urges this Court

to find that permitting leave to amend for a third time “would cause undue delay because

of Morgan’s repeated failures to cure previous amendments” and the amendments he

proposes are futile. (Dkt. No. 102 at 1). Kopacz adds that granting leave to amend

“would cause more delay in giving [him] finality.” (Dkt. No. 101 at 4). The Court finds

these arguments unpersuasive.

“[D]elay alone is an insufficient basis for denial of leave to amend: The delay must

be undue, i.e., it must prejudice the nonmoving party or impose unwarranted burdens on

the court.” Mayeaux, 376 F.3d at 427. A court may find undue delay if the plaintiff fails

to request leave to amend until a late stage in the litigation, even though the plaintiff

should have known to request leave to amend earlier. By way of example, the Fifth

Circuit has concluded a district court did not abuse its discretion in denying leave to

amend after finding that granting leave would cause undue delay because the plaintiff

was seeking to amend his complaint at a late stage in the litigation or was aware of

potential deficiencies in his complaint but delayed in attempting to correct them. See, e.g.,

Whitaker v. City of Houston, Tex., 963 F.2d 831, 837 (5th Cir. 1992); Overseas Inns S.A. P.A.

v. United States, 911 F.2d 1146, 1151 (5th Cir. 1990).

The circumstances for finding undue delay do not exist in this case. Before Morgan

moved to amend for a third time, the district court denied dismissal of Morgan’s Second

Amended Complaint and had denied as moot all prior Motions to Dismiss. (Dkt. No. 41);

(Dkt. No. 67); (Dkt. No. 75). On appeal, the Fifth Circuit vacated the judgment,

concluding that the Second Amended Complaint had not set forth “viable theories of

constitutional injury.” Morgan, 969 F.3d at 241. Notably, the Fifth Circuit concluded the

Fourth Amendment unreasonable search and seizure and Fourteenth Amendment due

process claims were not futile and remanded to this Court to determine whether Morgan

should be allowed to bring these claims in an amended complaint. See id. at 248–50.

Morgan now seeks to bring these claims and filed his Motion and Proposed Complaint

twenty-six days after the Fifth Circuit’s judgment was filed in the Southern District of

Texas. Compare (Dkt. No. 95) with (Dkt. No. 98).

Although this litigation has been ongoing since 2017, it is still in its early stages.

No Party has moved for summary judgment. Morgan states that, although the “Parties

have made disclosures,” they “have not yet conducted discovery.” (Dkt. No. 98 at 15).

Neither Kopacz nor Chapman challenge this statement in their Responses. (Dkt. No. 101);

(Dkt. No. 102). Because Morgan promptly moved for leave to amend in response to the

Fifth Circuit’s decision in Morgan and the litigation is still in its early stages, the Court

finds there is no undue delay.

b. Bad Faith

For similar reasons, the Court finds that Morgan’s Motion and Proposed

Complaint are not the products of bad faith. A court may find bad faith when a plaintiff

is aware of “facts and fail[s] to include them in [a previous version of the] complaint,”

which “might give rise to the inference that the plaintiff was engaging in tactical

maneuvers to force the court to consider various theories seriatim.” Dussouy v. Gulf Coast

Inv. Corp., 660 F.2d 594, 599 (5th Cir. 1981). In such circumstances, “where the movant

first presents a theory difficult to establish but favorable and, only after that fails, a less

favorable theory, denial of leave to amend on the grounds of bad faith may be

appropriate.” Id. Conversely, “where the failure to include in the complaint a known

theory of the case arises not from an attempt to gain tactical advantages but from a

reasonable belief that the theory is unnecessary to the case, denial of leave to amend is

inappropriate.” Id. Bad faith may also be present if it is apparent that a plaintiff is seeking

leave to amend to evade summary judgment, defeat federal jurisdiction, or forum shop.

See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 141 (5th Cir. 1993); Bouie v. Equistar Chems. LP,

188 F. App’x 233, 238–39 (5th Cir. 2006) (per curiam)(“district court properly found . . .

bad faith” when the plaintiff “requested leave to amend his complaint in order to retract

his federal claims” because his “intention was to defeat federal jurisdiction”); VTX

Commc’ns, LLC v. AT&T Inc., No. 7:19-CV-269, 2020 WL 918670, at *6 (S.D. Tex. Feb. 26,

2020).

Kopacz and Chapman offer no argument or reason for this Court to find Morgan

seeks leave to amend in bad faith. Indeed, the procedural history of this case

demonstrates to the contrary. The claims set forth in the Proposed Complaint are

predicated on the same alleged improper conduct of Kopacz and Chapman. As discussed

previously, the starkest changes Morgan makes in his Proposed Complaint are to his legal

theories. These changes by themselves are not grounds for dismissal, Mayeaux, 376 F.3d

at 427, and a plaintiff is generally permitted to make them in an amended complaint. See

McCarty, 2017 WL 10153538, at *2; Garza, 2014 WL 12599350, at *5; Rangel, 2011 WL

13353220, at *1–2; Valdez, 2010 WL 11665010, at *4–5. For these reasons, the Court finds

that Morgan is not seeking leave to amend in bad faith.

c. Repeated Failure to Cure Deficiencies

The Court also finds that the Motion and Proposed Complaint are not the result of

Morgan’s repeated failure to cure deficiencies with previous amendments. See Carroll v.

Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006). The Fifth Circuit’s decision in Morgan

is the first time a court concluded Morgan’s claims were legally insufficient. And, in

response to the Fifth Circuit’s decision, Morgan seeks leave to amend his Second

Amended Complaint. Thus, the Court is not convinced Morgan’s Motion should be

denied for repeatedly failing to cure deficiencies in prior amendments.9

d. Undue Prejudice to Kopacz and Chapman

The Court next considers whether Kopacz and Chapman would suffer undue

prejudice by granting Morgan leave to amend. Applying the rule set forth in Mayeaux,

the Court finds they would not. See Mayeaux, 376 F.3d at 427.

As described in the Court’s analysis concerning waiver and forfeiture above, the

amendments pertaining to the Fourth Amendment claims are merely alternative legal

theories based on the same underlying facts set forth in the Operative Complaint. This is

also true of Morgan’s Fourteenth Amendment due process claim against Chapman in his

9 Chapman argues that this Court should deny leave to amend because a district court

stated, after granting Morgan leave to file his Second Amended Complaint, “that’s the last

Complaint or amendment of pleadings he can file,” and that he could add “[n]o more new causes

of action [and] no more parties.” (Dkt. No. 102 at 9); (Dkt. No. 102-1 at 19). Morgan’s counsel

agreed. (Dkt. No. 10-1 at 19). The Court finds this argument unpersuasive because, subsequent

to this exchange, the Fifth Circuit remanded the case for this Court to independently determine

whether granting leave to amend is appropriate.

Proposed Complaint.10 Indeed, this claim is premised on Chapman’s alleged fabrication

of evidence that led to his prosecution. (Dkt. No. 98-1 at ¶¶ 124–38). Morgan alleged that

Chapman fabricated evidence in the prior Complaint in support of his malicious

prosecution and abuse of process claims. (Dkt. No. 63 at ¶¶ 67–69, 104, 120). Thus,

Chapman should have known she would need to mount a defense against this allegation

before seeing the Proposed Complaint. In his Proposed Complaint, Morgan merely

makes this allegation in support of a new legal theory—that Chapman violated his right

to due process under the Fourteenth Amendment—and expands upon this allegation.

(Dkt. No. 98-1 at ¶¶ 124–38). For these reasons, the Court finds that Kopacz and

Chapman will not suffer undue prejudice if Morgan is granted leave to amend.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS Morgan’s Motion. The Court

ORDERS Morgan to file a Third Amended Complaint that complies with this Order by

October 15, 2021.11

It is SO ORDERED.

10 With respect to Morgan’s Fourteenth Amendment claim, the Fifth Circuit stated the

“Defendants had no notice of a due process claim. But the district court is in the best position to

determine whether Morgan should be allowed to amend at this juncture.” Morgan, 969 F.3d at

250 n.8. Whether Morgan should be granted leave to amend to include this claim in a Third

Amended Complaint is a “question [the Fifth Circuit left] for [this] [C]ourt.” Id.

11 See supra note 3.

Signed on September 29, 2021.

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

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