# Ferrara v. Travis County

> Court of Appeals for the Fifth Circuit · November 11, 2025

URL: https://www.frixlaw.com/law-library/cases/11201310

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 11, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11201310

## Opinion text

Case: 25-50263 Document: 47-1 Page: 1 Date Filed: 11/11/2025

United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit

No. 25-50263
FILED
November 11, 2025
____________
Lyle W. Cayce
John Ferrara, Clerk

Plaintiff—Appellant,

versus

Travis County Attorney’s Office; Brent Ryan, Chief
Investigator, Travis County Attorney’s Office; Afton
Washbourne, Assistant County Attorney, Travis
County Attorney’s Office; Zachary Bidner, Assistant
County Attorney, Travis County Attorney’s Office;
Delia Garza, County Attorney, Travis County
Government.

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:23-CV-01406-XR
______________________________

Before Wiener, Willett, and Wilson, Circuit Judges.
Per Curiam: *

_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 25-50263 Document: 47-1 Page: 2 Date Filed: 11/11/2025

No. 25-50263

Proceeding pro se, John Ferrara sued the Travis County Attorney’s
Office (TCAO) and several officials therein under 42 U.S.C. § 1983, alleging
that their investigation and prosecution of him for harassment violated the
First and Fourth Amendments. Finding some of Ferrara’s claims to be time-
barred and that he had not plausibly addressed the others, the magistrate
judge recommended dismissal. Further finding that Ferrara was a vexatious
litigant, the magistrate judge recommended a pre-filing injunction against
Ferrara. The district court accepted these recommendations, dismissed
Ferrara’s claims, and enjoined him from filing further complaints without
court approval. The district court also denied Ferrara leave to file a third
amended complaint.
Ferrara now appeals. First, he contends that none of his First and
Fourth Amendment claims are time-barred and that the district court erred
in concluding that he had not plausibly alleged a violation of his rights.
Second, he asserts that the district court abused its discretion in denying him
leave to amend his complaint and in imposing a pre-filing injunction. Finally,
he contends that he sufficiently alleged municipal liability against Travis
County and that the investigators and prosecutors do not enjoy immunity in
this case.
I.
The record is complex, owing in part to Ferrara’s extensive litigation
in other forums. Relevant here, Ferrara was arrested for felony stalking in
May 2020. Prior to his arrest, Ferrara sent numerous distressing emails to
Kyle Police Chief Jeffrey Barnett over a period of several months. Ferrara
alleges that his arrest was part of a pattern of retaliatory harassment he has
received from the Kyle Police Department due to his criticism of local
government and law enforcement on his personal blog. Ferrara has initiated

2
Case: 25-50263 Document: 47-1 Page: 3 Date Filed: 11/11/2025

No. 25-50263

at least five other actions in federal and state court concerning his
interactions with public officials in Kyle, all of which have been dismissed. 1
Shortly after his arrest, Ferrara secured his release with a $20,000
surety bond through a bail bondsman. The Hays County District Attorney’s
Office recused itself, and TCAO was appointed as prosecutor pro tem in
October 2020. In March 2021, Afton Washbourne and Zachary Bidner, two
TCAO attorneys, met with Ferrara for an “investigative inquiry.”
Ultimately, TCAO prosecuted Ferrara for misdemeanor harassment, not
felony stalking. Ex Parte Ferrara, No. 3-21-278-CR, 2022 WL 1547773, at *1
(Tex. App. May 17, 2022).
Ferrara’s allegations regarding the prosecution are extensive (and
often confused), but only a handful of facts are relevant on appeal. First,
Ferrara was initially subject to bond conditions from his original release,
including remaining within the court’s jurisdiction and regular check-ins
with his bondsman. Ferrara filed a habeas application in April 2021 to
dissolve his bond and get the charges dismissed. Id. At a hearing on this
application before the state trial court in June 2021, his bond was converted
to a $4,000 personal bond, on the condition that Ferrara refrained from
contacting Chief Barnett, a condition to which Ferrara assented. Id.

_____________________
1
See Ferrara v. Swonke, 5:24-cv-77-FB-RBF (W.D. Tex. Jan. 22, 2024) (dismissing
Ferrara’s Fourth Amendment claims against two Kyle police officers for failure to state a
claim and imposing a pre-filing injunction); Ferrara v. Wallace, No. 22-51099, 2023 WL
3151129 (5th Cir. Apr. 28, 2023) (dismissed for failure to state a non-frivolous claim);
Ferrara v. Barnett, 5:21-cv-237-JKP, 2023 WL 2258330 (W.D. Tex. Feb. 27, 2023)
(dismissed for failure to state a non-frivolous claim); Ferrara v. Wallace, et al., 5:21-cv-251-
FB (W.D. Tex. May 27, 2021) (dismissed as frivolous and malicious); see also Ferrara v.
Kim Vickers-Pub. Off. of Tex. Comm’n on L. Enf’t, 658 S.W.3d 902, 908 (Tex. App. 2022)
(dismissed for lack of standing).

3
Case: 25-50263 Document: 47-1 Page: 4 Date Filed: 11/11/2025

No. 25-50263

In July 2021, Ferrara was served with a summons to appear and
answer for the harassment charge, and the trial court granted Ferrara a waiver
of in-person appearance. Id. In January 2022, the harassment charge was
dismissed pursuant to a deferred prosecution agreement (DPA). In the DPA,
Ferrara agreed to refrain from direct contact with Barnett via email or
messaging, to stay more than 200 yards from Barnett’s residence, and to
avoid other offenses. In exchange, TCAO deferred prosecution for
harassment for two years so long as Ferrara abided by the DPA.
In May 2022, Ferrara filed an “emergency motion to release unlawful
restraint” with the trial court, asserting that the terms of his May 2020 bond
remained in force and that these continued conditions were unlawful. Id. at
*2. The trial court, referencing its June 2021 order, determined that the bond
agreement had been converted to a personal bond, but even if it had not, the
limitations period for bringing new charges had ended, dissolving any bond
agreement. Id. (citing Tex. Code Crim. Pro. § 12.02).
Ferrara filed § 1983 claims against TCAO and its officers in
November 2023. TCAO initially moved to dismiss in January 2024. Ferrara
has amended his complaint twice, both times followed by renewed motions
to dismiss. In February 2025, the magistrate judge recommended dismissal,
and Ferrara again moved for leave to amend his complaint. In March 2025,
the district court granted the motion to dismiss, denied leave to file a third
amended complaint, and entered a pre-filing injunction against Ferrara.
Ferrara timely appealed.
II.
Ferrara appeals the dismissal of his § 1983 claims against TCAO and
its officials. He contends that the district court erred in dismissing (A) his
Fourth Amendment claims as time-barred, and (B) his First Amendment
claims under Rule 12(b)(6). “We review a district court’s decision on a

4
Case: 25-50263 Document: 47-1 Page: 5 Date Filed: 11/11/2025

No. 25-50263

[Rule] 12(b)(6) motion de novo, accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff.” Ferguson v.
Bank of N.Y. Mellon Corp., 802 F.3d 777, 780 (5th Cir. 2015) (alteration
original). Likewise, we “review the district court’s conclusion that
[Ferrara’s] claim is time-barred de novo.” Mapes v. Bishop, 541 F.3d 582, 583
(5th Cir. 2008).
A.
Ferrara contends that his summons to appear in July 2021, coupled
with the restrictive conditions of his May 2020 bond, constituted a seizure.
This seizure, he asserts, was based on a deficient charging process in violation
of the Fourth Amendment. The district court answered three questions on
these claims that are now disputed by the parties: whether the claims are
time-barred under § 1983, whether the summons and bond conditions
constituted a seizure, and whether Ferrara plausibly alleged a violation of his
Fourth Amendment rights.
The parties first dispute whether Ferrara’s § 1983 claim is timely.
The applicable limitations period is two years. Tex. Civ. Prac. & Rem.
Code § 16.003. Ferrara contends that this period ran from the end of the
prosecution against him in January 2022, making his November 2023
complaint timely. See Manuel v. City of Joliet, 580 U.S. 357, 370–72 (2017);
see also Wilson v. Midland Cnty., 116 F.4th 384, 391 (5th Cir. 2024) (claims
akin to malicious prosecution accrue upon “favorable termination” of the
prosecution). TCAO responds that this period began when Ferrara learned
of his “seizure” in July 2021, such that his complaint was untimely. See
Bradley v. Sheriff’s Dep’t, St. Landry Par., 958 F.3d 387, 391 (5th Cir. 2020)
(claims resembling false imprisonment accrue “when legal process was
initiated”). The district court concluded that the limitations period ran from
the start of prosecution and that some of Ferrara’s claims were time-barred.

5
Case: 25-50263 Document: 47-1 Page: 6 Date Filed: 11/11/2025

No. 25-50263

See Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994) (holding that a § 1983
claim arising from an unconstitutional seizure accrued when the plaintiff
possessed the “critical facts” necessary to begin the action). Nevertheless,
given “the convoluted nature of [Ferrara’s] pleading and his pro se status,”
the district court also addressed the merits of his claims. Deciding this
accrual point is unnecessary, as we agree that Ferrara’s claims fail on the
merits.
First, it is unclear whether a summons to appear, paired with bond
conditions, even constitutes a seizure. See Nesmith v. Taylor, 715 F.2d 194,
196 (5th Cir. 1983). 2 It is true that a summons, accompanied by significant
restrictions on liberty, may be a seizure. See Evans v. Ball, 168 F.3d 856, 861
(5th Cir. 1999). But Ferrara’s contentions on this point are profoundly
confused: He points to a summons for personal appearance that was waived
and maintains that his bond conditions continued beyond his habeas hearing
in July 2021, an assertion squarely contradicted by the orders of the state trial
court. Ex Parte Ferrara, 2022 WL 1547773, at *2. Regardless, even assuming
the summons and bond conditions at issue constituted a seizure, Ferrara’s
Fourth Amendment claims still fail.
Ferrara alleges that his “seizure by process” violated the Fourth
Amendment in either of two ways. First, he alleges that he was seized due to
a deficient charging instrument that lacked probable cause under Malley v.
Briggs, 475 U.S. 335 (1986). Second, citing Franks v. Delaware, 438 U.S. 154

_____________________
2
As the district court noted, this ambiguity indicates that the TCAO prosecutors
and investigators enjoy qualified immunity: Public officials are protected from § 1983
liability unless their conduct violates a clearly established constitutional right. Mace v. City
of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). If it is unclear whether the prosecutors’
actions constituted a seizure at all, their conduct could not violate Ferrara’s clearly-
established Fourth Amendment rights.

6
Case: 25-50263 Document: 47-1 Page: 7 Date Filed: 11/11/2025

No. 25-50263

(1978), Ferrara alleges that the prosecutors relied on false, misleading, or
conclusory affidavits to charge him in violation of the Fourth Amendment.
Neither flavor of Ferrara’s claim has merit. Under Malley, an officer
is liable only if “the affidavit presented to the magistrate was ‘so lacking in
indicia of probable cause as to render official belief in its existence
unreasonable.’” Melton v. Phillips, 875 F.3d 256, 264 (5th Cir. 2017) (quoting
Malley, 475 U.S. at 344). Here, the state court had ample evidence to
conclude that probable cause existed to charge Ferrara for harassment. See
Tex. Penal Code § 42.07(a)(7). Ferrara presents no contrary evidence
beyond an unsupported assertion that TCAO officials conspired to seize him
based on “fatally conclusory” statements. Because the information in the
initial charging instrument did not lack indicia of probable cause, Ferrara’s
argument on this issue stalls out of the gate.
Ferrara’s Franks argument falters for similar reasons. Prosecutors are
liable when the affiant supporting a warrant knowingly or recklessly includes
false statements which are necessary to finding probable cause. Winfrey v.
Rogers, 901 F.3d 483, 494 (5th Cir. 2018) (citing Franks, 438 U.S. at 155–56).
The only “false” statement identified by Ferrara is the pseudonym used by
Barnett in initiating his complaint to police. But the pseudonym’s use was
neither “necessary” to finding probable cause nor was it a “false statement.”
See United States v. Mays, 466 F.3d 335, 343–44 (5th Cir. 2006)
(pseudonymous information, if reliable, may serve as the basis for a warrant
under Franks). Ferrara offers no evidence that Barnett’s pseudonym
rendered the underlying information unreliable, and Franks does not salvage
his Fourth Amendment claim.
B.
Ferrara’s First Amendment retaliation claim fares no better. A viable
First Amendment retaliation claim requires Ferrara to show that (1) he

7
Case: 25-50263 Document: 47-1 Page: 8 Date Filed: 11/11/2025

No. 25-50263

engaged in protected activity, (2) TCAO took adverse action against him,
and (3) a causal connection between the two existed. Nieves v. Bartlett, 587
U.S. 391, 398–99 (2019). Further, TCAO’s “non-retaliatory grounds [must
have been] in fact insufficient to provoke the adverse consequences.” Id. at
398.
Ferrara’s evidence on this point is sparse. First, he contends that his
initial stalking arrest and subsequent prosecution were not caused by his
harassment of Barnett, but by his public criticism of local government and
complaints he filed concerning Barnett’s conduct. According to Ferrara,
TCAO pursued charges and hid exculpatory information as revenge for
these criticisms. He presents no evidence of this conspiracy apart from the
fact that his DPA restrains him from using public platforms to message
Barnett directly. From this, Ferrara infers that “the real motive was to chill
Ferrara’s expressive activity.”
Ferrara offers no support for his conclusory allegations, and he utterly
fails to show that the non-retaliatory grounds present in this case (such as his
repeated, harassing emails to Barnett) were insufficient to provoke charges
against him. Nieves, 587 U.S. at 398. The district court properly concluded
that Ferrara failed to allege a violation of his First Amendment rights.
III.
Ferrara next contends that the investigators and prosecutors with
TCAO do not enjoy prosecutorial immunity (referred to as “absolute
immunity” in his brief). Ferrara also advances a claim for municipal liability
against Travis County under Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978). Because Ferrara has not plausibly alleged any violation of his
constitutional rights, the question of prosecutorial immunity is irrelevant.
See Wells v. Bonner, 45 F.3d 90, 93 (5th Cir. 1995) (Addressing immunity is
unnecessary “if it becomes evident that the plaintiff has failed to state or

8
Case: 25-50263 Document: 47-1 Page: 9 Date Filed: 11/11/2025

No. 25-50263

. . . establish a claim[.]”). So too for his assertion of municipal liability. See
Pipkins v. Stewart, 105 F.4th 358, 360 (5th Cir. 2024) (“It is well settled that
without a predicate constitutional violation, there can be no Monell
liability.”) (citation omitted).
IV.
Ferrara presses two last challenges to the district court’s handling of
his case. He contends that the district court abused its discretion (A) in
denying him leave to file a third amended complaint, and (B) in imposing a
pre-filing injunction without proper notice or factfinding.
A.
Denial of leave to amend a complaint is reviewed for abuse of
discretion. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). Courts
“should freely give leave when justice requires,” Fed. R. Civ. P. 15(a)(2),
as “Rule 15(a) evinces a bias in favor of granting leave to amend,” Mayeaux
v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). In
denying leave to amend, district courts may consider a number of factors,
including undue delay, bad faith of the movant, repeated failure to cure
deficiencies by amendment, undue prejudice to the opposing party, and the
futility of amendment. N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins.
Co., 898 F.3d 461, 477 (5th Cir. 2018). Undue delay “must prejudice the
nonmoving party or impose unwarranted burdens on the court.” Id. at 478.
“[A]n amendment is futile if it would fail to survive a Rule 12(b)(6) motion.”
Id. Bad faith may be demonstrated when a motion to amend “is obviously
interposed by plaintiffs in an attempt to avoid” unfavorable disposition of the
case by the court. Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
Ferrara maintains that his motion to amend was submitted in good
faith to correct the omission of “key factual allegations” by the district court.
But he goes on to explain that the same information was included in prior

9
Case: 25-50263 Document: 47-1 Page: 10 Date Filed: 11/11/2025

No. 25-50263

amended complaints and only proposes that a third amendment would
expand on legal arguments already deployed in prior complaints.
In its order denying leave to file a third amended complaint, the court
noted that Ferrara had already been granted multiple opportunities to amend.
The district court also recognized that the motion appeared to be another
attempt to avoid an unfavorable ruling on a motion to dismiss. See Wimm, 3
F.3d at 139. The district court concluded that further amendment would be
futile, as Ferrara had failed (after multiple attempts) to plead a viable claim.
Given Ferrara’s course of litigation, the district court did not err in reaching
these conclusions. Moreover, the record demonstrates that Ferrara will not
allege any new substantial evidence or plead a new, viable cause of action.
Thus, the district court did not abuse its discretion in denying Ferrara a third
chance to rework his claims. See ABC Arbitrage Plaintiffs Grp. v. Tchuruk,
291 F.3d 336, 362 (5th Cir. 2002) (Having failed to substantiate their claims
in multiple prior filings, “it was not an abuse of discretion to deny plaintiffs
a third chance to offer more details.”).
B.
We review a district court’s decision to enter a pre-filing injunction
for abuse of discretion. Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 187
(5th Cir. 2008). Litigants must confine themselves to complaints which “are
warranted by the existing law or by a nonfrivolous argument for extending,
modifying or reversing existing law or for establishing new law.” Fed. R.
Civ. P. 11(b)(2). Litigants who violate this Rule may be sanctioned to
“deter repetition of the conduct.” Fed. R. Civ. P. 11(c)(4). “A district
court clearly has the power to impose a pre-filing injunction in the
appropriate factual circumstances,” weighing (1) the party’s history of
litigation, (2) whether a good faith basis existed for the original action, (3) the
burden imposed by the party’s filings, and (4) the adequacy of alternative

10
Case: 25-50263 Document: 47-1 Page: 11 Date Filed: 11/11/2025

No. 25-50263

sanctions. Baum, 513 F.3d at 187, 189. “Notice and hearing are required if
the district court sua sponte imposes a pre-filing injunction,” and these
injunctions “must be tailored to protect the courts[,] while preserving the
legitimate rights of litigants.” Id. at 189; see also Fed. R. Civ. P. 11(c)(3)
(requiring notice of a potential sanction).
Here, Ferrara was enjoined from filing future lawsuits in the Western
District of Texas without written permission. Ferrara concedes that he had
received warnings of future sanctions in other federal cases arising from the
same or similar factual matter. But he asserts that these warnings could only
deter him from continuing other failed lawsuits and should not factor into his
“history of litigation” in the present action. Baum, 513 F.3d at 189.
Not so. An enjoining court may consider the litigant’s course of
litigation before that court as well as before other courts. See Nix v. Major
League Baseball, 62 F.4th 920, 937 (5th Cir. 2023). Several judges in the
Western District of Texas had warned Ferrara that further baseless filings
could result in sanctions. Further, given the apparent bad faith with which
some of his motions were advanced, as well as the burden on the court and
TCAO of litigating Ferrara’s baseless claims, the district court reasonably
weighed the Baum factors in favor of a pre-filing injunction. That court did
not abuse its discretion in doing so.
* * *
Ferrara fails to allege any plausible constitutional violation. And the
district court did not abuse its discretion in denying his motion to amend or
by imposing a pre-filing injunction. The order and judgment of the district
court are AFFIRMED.

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11201310. Public record. Not legal advice.