Lupis v. City of Texas City

Case: 23-40445 Document: 90-1 Page: 1 Date Filed: 11/05/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 5, 2024

No. 23-40445 Lyle W. Cayce

____________ Clerk

Nikola Lupis,

Plaintiff—Appellant,

versus

City of Texas City; City of Texas City Police

Department; Joe Stanton, Individually; Officer Matthew

Bonner, Individually; Officer Veronica De la Garza,

Individually,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:22-CV-101

______________________________

Before Elrod, Chief Judge, Graves, Circuit Judge, and Ashe, District

Judge. *

Per Curiam: †

Nikola Lupis was detained by Texas City police officers. He alleged

under 42 U.S.C. § 1983 that the detention was unconstitutional, in addition

_____________________

*

District Judge for the Eastern District of Louisiana, sitting by designation.

†

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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to various Texas state law tort allegations. The district court dismissed the

case after it determined that Lupis failed to plausibly state a claim and denied

his motion for leave to amend his complaint. Because we agree that Lupis

failed to state a claim for relief and conclude that the district court did not

abuse its discretion in denying Lupis leave to amend his complaint, we

AFFIRM.

I

A

On the afternoon of June 27, 2020, Texas City police officers Matthew

Bonner and Veronica De la Garza attempted to execute an arrest warrant for

Mato Lopez at Three Stars Harbor restaurant, a waterfront property owned

by Lopez’s father, Nikola Lupis. 1 When Officers Bonner and De la Garza

arrived, they found Lupis standing outside the restaurant. Officer Bonner

approached Lupis and asked, “Are you Mato Lopez?” Lupis replied that he

was Lopez’s father and that Lopez had just left on a boat. Lupis then asked

Officer Bonner why he was looking for Lopez. Officer Bonner told Lupis that

he had a warrant for Lopez’s arrest on an assault charge. Officer Bonner then

warned Lupis of the consequences of concealing and harboring a fugitive.

Lupis denied that Lopez was on the property and began to walk away.

Officer Bonner asked Lupis if he had any form of identification on him, and

Lupis turned around with his arms spread wide open and replied “no.”

Officer Bonner told Lupis to “calm down” and that he was conducting an

investigation and needed some form of identification to ascertain who he was

talking to. Lupis then turned back around and began walking towards his

parked car to get his identification. Officer De la Garza then immediately

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1

All factual allegations are taken as true from the First Amended Complaint, unless

otherwise stated.

2

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told Lupis they only needed his name and date of birth and ordered him to

“stay here.” Lupis complied.

After this, Officer Bonner went to his patrol car, while Officer De la

Garza stayed with Lupis. Lupis then walked behind the gate on his business’s

property and tried to close the gate. Officer De la Garza removed her taser

from its holster, threatened that she would tase Lupis, and grabbed the gate

handle to hold the gate open. Officer De la Garza then told Lupis that he was

being detained. Lupis was then handcuffed and placed into the back of

Officer Bonner’s patrol car. Approximately six minutes after placing Lupis

in Officer Bonner’s patrol car, Officer De la Garza opened the door of the

patrol car, and Lupis informed him that his handcuffs were too tight and that

he could not breathe. The officers, however, kept Lupis in the vehicle.

Soon thereafter, Lupis’s wife arrived and gave the officers permission

to search the property. Lopez was not found. When the officers returned to

the car, approximately seven minutes later, Lupis was trembling, sweating,

and gasping for air. Lupis urged Officer Bonner to call an ambulance. An

ambulance soon arrived and transported Lupis to a hospital.

B

Lupis filed this lawsuit in Texas state court, alleging that the incident

caused physical injuries, post-traumatic stress disorder, flashbacks,

nightmares, an inability to sleep, and symptoms of depression, anxiety, and

anger. Texas City timely removed the case to the Southern District of Texas.

Lupis filed his operative complaint, which names Texas City, the Texas City

Police Department, Police Chief Joe Stanton, Officer Bonner, and Officer De

la Garza as defendants. Lupis pursued Texas state law tort claims against

Officers Bonner and De la Garza, in addition to claims under 42 U.S.C.

§ 1983 against Officers Bonner and De la Garza, Chief Stanton, the Texas

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City Police Department, and Texas City. Lupis also pursued Monell liability

claims against Chief Stanton and Texas City.

Officers Bonner and De la Garza and Chief Stanton filed motions to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and invoked the

affirmative defense of qualified immunity. Texas City and the Texas City

Police Department filed a motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). Lupis filed responses to each motion,

arguing that his complaint sufficiently pleaded that he “was falsely or

wrongfully detained” without probable cause.

The district court granted Officers Bonner and De la Garza’s and

Chief Stanton’s 12(b)(6) motions to dismiss. In a separate order, the district

court granted Texas City’s 12(c) motion for judgment on the pleadings. The

district court also denied Lupis’s request for leave to amend his first

amended complaint, determining that Lupis failed to show good cause under

Federal Rule of Civil Procedure 16(b).

Lupis filed a motion for reconsideration under Federal Rule of Civil

Procedure 59(e) and in the alternative under Rule 60(b)(6). The motion for

reconsideration raised new claims, including illegal search, delay in medical

care, and false arrest. In response, defendants submitted Officers Bonner’s

and De la Garza’s body-worn camera footage. 2 The district court denied

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2

When evaluating a Rule 12(b)(6) motion, the court is typically “confined” to the

pleadings. Kling v. Hebert, 60 F.4th 281, 284 (5th Cir. 2023). However, courts may also

consider “any documents attached to the complaint, and any documents attached to the

motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Here, by

contrast, Lupis did not append the body camera footage to his complaint or otherwise

mention it, and the district court did not consider it. Cf. Harmon v. City of Arlington, 16

F.4th 1159, 1163 (5th Cir. 2021) (reviewing body camera footage in a motion to dismiss

because it was included in the pleadings). Thus, we do not consider the body camera

footage.

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Lupis’s motion for reconsideration for the same reasons stated in its previous

memorandum opinions. This appeal followed. At oral argument, Lupis

abandoned the excessive force claims, Texas state law tort claims, and claims

against the Texas City Police Department.

II

“We review 12(b)(6) dismissals de novo.” Arnold v. Williams, 979 F.3d

262, 266 (5th Cir. 2020) (citing Walker v. Beaumont Ind. Sch. Dist., 938 F.3d

724, 734 (5th Cir. 2019)). “To survive a motion to dismiss, the complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is

facially plausible if the plaintiff alleges facts that, accepted as true, allow a

court ‘to draw the reasonable inference that the defendant is liable for the

misconduct alleged.’” Arnold, 979 F.3d at 266 (quoting Iqbal, 556 U.S. at

678).

Qualified immunity appeals based on legal error are reviewed de novo.

Marks v. Hudson, 933 F.3d 481, 485 (5th Cir. 2019). “When a defendant

invokes qualified immunity, the burden is on the plaintiff to demonstrate the

inapplicability of the defense.” Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th

Cir. 2021) (quoting McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.

2002)). “The qualified immunity analysis has two components: (1) whether

a plaintiff alleges . . . the violation of a federal constitutional or statutory right;

and (2) whether the right in question was clearly established at the time of

the alleged violation.” Id.

We address two issues. First, whether the district court erred by

granting Appellees’ 12(b)(6) motions to dismiss Lupis’s unlawful detention

claim. Second, whether the district court abused its discretion by denying

Lupis’s motion for leave to amend his first amended complaint.

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A

The district court did not err by granting Appellees’ Rule 12(b)(6)

motions to dismiss Lupis’s unlawful detention claim.

“To state a claim for unlawful detention, a plaintiff must allege: (1) a

detention occurred; and (2) the detention was not based on reasonable

suspicion supported by articulable facts that criminal activity was

occurring.” Coons v. Lain, 277 F. App’x 467, 470 (5th Cir. 2008) (citing

Terry v. Ohio, 392 U.S. 1, 30 (1968)).

The district court construed Lupis’s live complaint “as arguing that

the officers detained him in retaliation for protected First Amendment

speech.” Given that a finding of reasonable suspicion or probable cause

generally defeats a retaliatory detention claim, 3 we give priority to addressing

whether the officers had constitutional grounds for the detention.

Taking the pleaded facts as true and viewing them in the light most

favorable to Lupis, we hold that Lupis’s complaint fails to survive a Rule

12(b)(6) motion to dismiss because the detention was lawful: although a

detention occurred, the officers had reasonable suspicion justifying it.

1

Lupis meets the first prong of the unlawful detention claim because

Officer De la Garza’s command to “stay here” while Officer Bonner verified

Lupis’s identity constituted a seizure.

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3

See Allen v. Cisneros, 815 F.3d 239, 244–45 (5th Cir. 2016) (quoting Keenan v.

Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002)) (“[E]ven where a citizen believes that he has

been subject to a retaliatory detention or arrest, if there was reasonable suspicion or

probable cause for an officer to seize the citizen, ‘the objectives of law enforcement take

primacy over the citizen’s right to avoid retaliation.’”).

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When “a claimed seizure lacks physical force, we must analyze the

encounter in two steps: whether the officer exerted a sufficient show of

authority; and whether defendant submitted to it.” United States v. Wright,

57 F.4th 524, 531 (5th Cir. 2023). To determine whether an officer exerted a

sufficient show of authority, we employ the “free to leave” test from United

States v. Mendenhall, 446 U.S. 544, 554–55 (1980).

In Mendenhall, the Supreme Court held that “a person has been

‘seized’ within the meaning of the Fourth Amendment only if, in view of all

of the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave. Examples of circumstances that

might indicate a seizure . . . would be . . . the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.”

Id. at 554 (emphasis added) (footnote omitted). However, when an

individual has no desire to leave, such as when he is on his own property,

“the appropriate inquiry is whether a reasonable person would feel free to

decline the officers’ requests or otherwise terminate the encounter.” Florida

v. Bostick, 501 U.S. 429, 436 (1991). “[A] refusal to cooperate, without more,

does not furnish the minimal level of objective justification needed for a

detention or seizure.” Id. at 437 (citation omitted). Again, “no seizure

occurs when police ask questions of an individual, [or] ask to examine the

individual’s identification[.]” Id. If an officer, however, conveys a message

that compliance with their requests is required, then a seizure has occurred.

Id.

Officer De la Garza’s command to “stay here” exerted a sufficient

show of authority. See Wright, 57 F.4th at 530. By instructing Lupis not to

move, Officer De la Garza intended to place a restraint on his liberty.

Moreover, upon receiving this instruction, Lupis remained still—submitting

to that show of authority. See, e.g., United States v. Darrell, 945 F.3d 929, 933

(5th Cir. 2019) (explaining that compliance with an officer’s command to

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stop constitutes a seizure). A reasonable person in Lupis’s position would

not feel free to decline the officer’s request to stay still or terminate the

encounter. Cf. Bostick, 501 U.S. at 436-37. Lupis therefore was detained and

meets the first prong of the unlawful detention claim. 4

2

Lupis does not meet the second prong of the unlawful detention claim,

however, because the officers had reasonable suspicion to briefly detain him.

A Terry stop like the one at issue here is a brief detention used by

officers to investigate suspected criminal activity. See United States v. Sharpe,

470 U.S. 675, 685–86 (1985). To justify a Terry stop, an officer needs

reasonable suspicion. See Terry, 392 U.S. at 21, 30. To establish reasonable

suspicion, the “officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.” Id. at 21 (footnote omitted). We review a district

court’s determination of reasonable suspicion de novo. United States v.

Rodriguez, 564 F.3d 735, 740 (5th Cir. 2009).

Terry stops “must be temporary and last no longer than is necessary

to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500

(1983). “Similarly, the investigative methods employed should be the least

intrusive means reasonably available to verify or dispel the officer’s suspicion

in a short period of time.” Id.

In this case, the relevant period for the assessment of whether the

officers had reasonable suspicion is the moments leading up to the seizure—

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4

The operative complaint continues with alleged facts about Lupis being

handcuffed and placed in the patrol car. But the relevant period for our narrow assessment

of the remaining unlawful detention claim must begin and end with when the initial seizure

occurred. Wright, 57 F.4th at 530.

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the time at which Officer De la Garza ordered Lupis to “stay here.” See

Wright, 57 F.4th at 530 (5th Cir. 2023) (“[A] seizure must be justified at its

inception.” (internal quotation omitted)).

During these pre-seizure moments, Officers Bonner and De la Garza

approached Lupis’s property to execute an arrest warrant after receiving a

call indicating that Lopez’s truck was at the property. Upon seeing that the

vehicle was, in fact, on the property, they approached Lupis.

Because the officers were lawfully present at Lupis’s establishment,

they were entitled to engage with him in a consent-based encounter. See

Kentucky v. King, 563 U.S. 452, 463 (2011). And they did. They asked Lupis

if he was Lopez. Lupis replied that he was Lopez’s father and that Lopez had

just left on a boat. Lupis then asked Officer Bonner why he was looking for

Lopez, and Officer Bonner explained that he had a warrant for Lopez’s arrest

on an assault charge. Lupis again denied that Lopez was on the property,

stated that he would not repeat himself anymore, and began to walk away.

Officer Bonner then asked Lupis if he had any form of identification on him.

Lupis turned around, with his arms and hands spread wide, and answered,

“No.” Officer Bonner then told Lupis that he needed to provide some form

of identification, so that Officer Bonner could verify to whom he was

speaking. Lupis turned and began walking toward his parked vehicle.

It was at this point that the seizure occurred: Officer De la Garza told

Lupis that they only needed his name and date of birth and ordered him to

“stay here.” Lupis then stopped, as ordered, and stated his name and date

of birth.

The sequence of events leading up to the seizure establishes that the

officers had reasonable suspicion to detain Lupis so that they could ascertain

whether he was the fugitive they sought. The officers approached Lupis at

his business establishment, where they had just found Lopez’s car—a place

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where Lopez plausibly could have been found. When the officers spoke to

Lupis, Lupis asserted that he was not Lopez, stated that he did not want to

repeat that fact, and began to walk away toward a vehicle, maintaining that

he did not have identification on his person. It is not inconceivable that a

fugitive wishing to escape detection would engage in such behavior. We

conclude that these are “specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant[ed]” the

officers stopping Lupis so that they could ascertain his identity. Terry, 392

U.S. at 21.

To be clear, individuals who are not detained are not required to

provide identifying information to police. See Johnson v. Thibodaux City, 887

F.3d 726, 733 (5th Cir. 2018) (citing Brown v. Texas, 443 U.S. 47, 52-53

(1979)) (“[P]olice officers may not require identification absent an otherwise

lawful detention or arrest based on reasonable suspicion or probable cause.”).

But we have previously held that it is reasonable for an officer to ask to speak

to the target of an arrest warrant at a residence and then to request

identification from the person to whom they speak so that they can confirm

that they are arresting the correct person. United States v. Roberts, 612 F.3d

306, 310 (5th Cir. 2010). We held this even in light of the well-established

principle that the “area around the home is ‘intimately linked to the home,

both physically and psychologically,’ and is where ‘privacy expectations are

most heightened.’” Florida v. Jardines, 569 U.S. 1, 7 (quoting California v.

Ciraolo, 476 U.S. 207, 213 (1986)). Consequently, we conclude that it is also

permissible for an officer to request identification from a person who

reasonably could be the target of an arrest warrant and is attempting to walk

away from officers toward his vehicle outside of a business establishment,

where privacy expectations are weaker.

Officer safety considerations, which the Supreme Court has stated are

“both legitimate and weighty,” are pivotal to this conclusion. Pennsylvania

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v. Mimms, 434 U.S. 106, 110 (1977); see also Terry, 329 U.S. at 23 (“Certainly

it would be unreasonable to require that police officers take unnecessary risks

in the performance of their duties.”). Ordering Lupis to stand with the

officers for a minute or two while they confirmed whether he was the fugitive

they sought was a minimal intrusion that minimized risk of harm to the

officers, because it prevented Lupis from moving to an area of the property

where he could have concealed a weapon. Furthermore, Lupis was not

handcuffed or physically restrained in any way. The officers’ command to

“stay here” was the “least intrusive means reasonably available to verify or

dispel the officer[s’] suspicion in a short period of time.” Royer, 460 U.S. at

500.

Because the officers’ detention of Lupis was based on reasonable

suspicion, the district court did not err by granting Appellees’ 12(b)(6)

motion to dismiss Lupis’s unlawful detention claim.

B

Lupis also insists that the district court abused its discretion by

denying his motion for leave to amend his complaint because the parties

jointly filed a motion to vacate the scheduling order and ten days later, the

district court issued its opinion and final judgment. Because the parties

jointly filed the motion to vacate, Lupis contends that good cause exists to

amend the scheduling order. Lupis’s proposed amendment raised three new

claims: (1) illegal search; (2) delay in medical care; and (3) false arrest.

“A district court abuses its discretion if it bases its decision on an

erroneous view of the law or on a clearly erroneous assessment of the

evidence.” Klick v. Cenikor Found., 94 F.4th 362, 368 (5th Cir. 2024). “Four

factors are considered in determining whether a motion under Rule 16(b)(4)

should be granted: ‘(1) the explanation for the failure to [timely move for

leave to amend]; (2) the importance of the [amendment]; (3) potential

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prejudice in allowing the [amendment]; and (4) the availability of a

continuance to cure such prejudice.’” U.S. ex rel. Bias v. Tangipahoa Par.

Sch. Bd., 816 F.3d 315, 328 (5th Cir. 2016) (alterations in original) (quoting

S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th

Cir. 2003)).

Lupis has failed to demonstrate an abuse of discretion by the district

court under any of the four factors. Lupis’s brief only cites the dates of filings

on the docket, suggests that good cause exists, and recites the four-factor test.

To be sure, Lupis does not make an argument at all about whether the district

court abused its discretion.

Although Lupis raised his illegal search and delay in medical care

claims at oral argument, these claims fail because they were included only in

his Rule 59(e) motion for reconsideration, not the operative complaint. The

district court’s order on the Rule 59(e) motion explained that Lupis “failed

to show good cause to [amend his complaint] nearly one year after the docket-

control order’s deadline to amend the pleadings had passed.” Because the

illegal search and delay in medical care claims were not properly before the

district court, they are forfeited and will not be considered on appeal. This

court has held that a party “forfeits an argument by failing to raise it in the

first instance in the district court . . . or by failing to adequately brief the

argument on appeal.” Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th

Cir. 2021); see also United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.

1992) (“Failure of an appellant to properly argue or present issues in an

appellate brief renders those issues abandoned.”).

Even if the illegal search and delay in medical care claims were before

the district court, Lupis failed to adequately brief those. Lupis merely recites

the four-factor “good cause” test without offering any analysis.

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Accordingly, the district court did not err, much less abuse its

discretion, in denying Lupis’s motion for leave to amend.

IV

For the foregoing reasons, we AFFIRM.

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