Harvey v. Montiel

Case: 25-40127 Document: 44-1 Page: 1 Date Filed: 02/20/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

February 20, 2026

No. 25-40127

Lyle W. Cayce

____________ Clerk

Andrew Harvey,

Plaintiff—Appellant,

versus

Jose A. Montiel, Officer #9370; Anthony Garcia, Officer #3336;

City of Pharr Police Department,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:24-CV-107

______________________________

Before Wiener, Engelhardt, and Oldham, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge: *

In September 2023, Pharr Police Department officers arrived at

Plaintiff-Appellant (and former Pharr Police Chief) Andrew Harvey’s

residence, responding to text messages allegedly sent from his phone to 911

dispatch. Plaintiff alleges that Pharr Police Department officers improperly

arrested him using excessive force and entered his home without a warrant

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*

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

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No. 25-40127

or consent. To implicate the municipal defendants, he alleges the City of

Pharr (“the City”) failed to properly train employees about 911

communications and constitutional protections prohibiting excessive force.

Reviewing plaintiff’s Third Amended Complaint,1 the district court

granted defendants’ motions to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). It dismissed all of plaintiff’s claims

with prejudice. Plaintiff then moved the district court to reconsider under

Rules 59(e) and 60(b), seeking leave to amend the complaint a fourth time.

The district court denied the reconsideration motion in all respects.

Plaintiff appeals both orders. Because he appears pro se on appeal, as

in the district court, we afford his briefs “liberal construction.” Mapes v.

Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (citing Haines v. Kerner, 404 U.S.

519, 520 (1972)). But pro se litigants remain subject to the court’s procedural

rules. Arredondo v. Univ. of Tex. Med. Branch at Galveston, 950 F.3d 294, 298

(5th Cir. 2020). We REVERSE the district court’s dismissal of plaintiff’s

Fourth Amendment unlawful arrest claim against the defendant-officers and

AFFIRM the district court’s dismissal of the remaining claims. We likewise

AFFIRM the district court’s denial of plaintiff’s motion to reconsider.

I

We review the district court’s dismissal of plaintiff’s complaint for

failure to state a claim de novo. McKay v. LaCroix, 117 F.4th 741, 746 (5th Cir.

2024). A “complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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1

The district court described the operative complaint as plaintiff’s Fourth

Amended Complaint, as it was labeled in CM/ECF. Although a bit unclear, a review of the

record suggests the operative complaint was, in fact, plaintiff’s third amendment. This

opinion refers to the operative complaint as plaintiff’s Third Amended Complaint.

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556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

The plaintiff must plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Id. As such, the court “must accept all facts in the complaint as true,” but

will not “accept conclusory allegations, unwarranted factual inferences, or

legal conclusions.” McKay, 117 F.4th at 746.

Plaintiff’s complaint is not a model of clarity. But the district court

aptly distilled his claims:

1) violations of the Fourth Amendment against the Officers for

unlawful arrest, for entering Plaintiff’s home or curtilage

without probable cause or a warrant, and for excessive force; 2)

violation of 42 U.S.C. § 1983 (Monell claim) against the City for

failure to properly train employees on handling text-based 911

communications and for failure to train and supervise officers

on respecting constitutional rights and avoiding excessive

force; 3) violation of the Eighth Amendment against the

Officers for cruel and unusual punishment based on the use of

excessive force and a prohibited chokehold, as well as a

corresponding state claim under Article 1, Section 13 of the

Texas Constitution; 4) violation of the Fourteenth

Amendment against the City for targeting Plaintiff for the

offense of Silent Abuse to 911, while other citizens who

similarly or more egregiously violated the 911 call system were

not charged; 5) negligence against the City for not having set

policies or Standard Operating Procedures for managing calls

by text to 911; 6) violation of 42 U.S.C. § 1985 against all

defendants for orchestrating Plaintiff’s unlawful arrest; 7) use

of prohibited chokehold against the Officers for using a

chokehold in violation of [proposed state legislative acts]; 8)

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malicious prosecution against the Officers for maliciously

fabricating charges of 911 Silent Abuse and resisting arrest.

Order Granting Mot. to Dismiss at 5–6, Harvey v. Montiel, No. 24-CV-00107

(S.D. Tex. Dec. 2, 2024), Dkt. No. 57-2 (citation modified).

Plaintiff does not challenge the district court’s decision on his (3)

Eighth Amendment, (5) negligence, and (6) § 1985 conspiracy claims.

Plaintiff likewise does not address any error in the district court’s decisions

on his claims for (3) violating Article I, Section 13 of the Texas constitution,

(7) use of a prohibited chokehold, and (8) malicious prosecution.

Accordingly, the court does not revisit the district court’s order on those

claims.

That leaves for our review only the following claims: (1) Fourth

Amendment claims for unlawful arrest/entry and excessive force against the

individual officers; 2 (2) § 1983 Monell-liability claims against the City for

failure to train and supervise; and (4) a Fourteenth Amendment selective

enforcement claim against the City. We take each claim, in turn.

II

Each of plaintiff’s claims against the defendant-officers implicate the

Fourth Amendment. His excessive force claim has been abandoned on

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2

Although the district court listed unlawful arrest and unlawful entry separately in

outlining plaintiff’s claims, it appears to treat them together in its analysis. Liberally

construing plaintiff’s complaint, he appears to assert the officers’ unlawful entry to

accomplish his unlawful arrest. A seizure occurs when “an officer applies physical force or

an officer makes a show of authority to which an individual submits.” Arnold v. Williams,

979 F.3d 262, 268 (5th Cir. 2020). Although included within plaintiff’s excessive force

description, he alleges the officers “remov[ed plaintiff] from his home and slamm[ed] him

to the ground.” 3d Am. Compl. at 9 (Count 5). We treat plaintiff’s allegations as asserting

an unlawful arrest claim premised in part on the officers’ alleged unlawful entry into his

home—not as two separate claims.

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appeal—plaintiff failed to identify any specific errors in the district court’s

assessment of this claim. 3 See Mapes, 541 F.3d at 584 (“Although pro se

briefs are afforded liberal construction, even pro se litigants must brief

arguments in order to preserve them.” (internal citations omitted)); see also

Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987); Dingler v. Bowles, 113 F. App’x 6, 6 (5th Cir. 2004). But unlike the

district court, we conclude plaintiff has plausibly alleged an unlawful arrest

claim. 4

A

“The Fourth Amendment has drawn a firm line at the entrance to the

house.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013) (citation

modified). “Under the Fourth Amendment, a warrantless intrusion into a

person’s home is presumptively unreasonable unless the person consents, or

unless probable cause and exigent circumstances justify the intrusion.”

Smith v. Lee, 73 F.4th 376, 381 (5th Cir. 2023) (citation modified); see also

Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam) (similar

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3

Plaintiff’s opening brief concludes that his complaint “stated a viable excessive

force claim” and argues that officers failed to follow certain policies on de-escalation

techniques, but that is about all he says on the matter. He concludes his “detailed

allegations” state a claim. He repeats in his brief’s fact section that officers forced him to

the ground and restrained him “with weight pressed into his back.” Plaintiff does not have

a separate heading in his argument section addressing his excessive force claim and fails to

engage meaningfully with the district court’s analysis.

4

Because the district court did not evaluate the officers’ entitlement to qualified

immunity in dismissing plaintiff’s complaint, we remand to the district court to evaluate

qualified immunity for the sole surviving claim while resolving the officers’ already-filed

summary judgment motion. Rutila v. Dep’t of Transp., 12 F.4th 509, 511 n.3 (5th Cir. 2021)

(recognizing court could affirm motion to dismiss on any ground supported by record but

“opt[ing] not to seek out alternative grounds” given status as “court of review, not of first

view” (internal quotation marks and citation omitted)); Arnold, 979 F.3d at 269 (remanding

issue of qualified immunity while reversing district court’s dismissal of claim).

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proposition); Payton v. New York, 445 U.S. 573, 590 (1980) (same).

Defendants have the burden of showing a justification for the warrantless

entry. Winder v. Gallardo, 118 F.4th 638, 644 (5th Cir. 2024).

1

A “warrantless intrusion into a person’s home is presumptively

unreasonable” unless, for example, “the person consents.” Smith, 73 F.4th

at 381 (citation modified). “Implicit consent can be inferred from silence or

failure to object” if the silence “follows a police officer’s explicit or implicit

request for consent.” Id. (citation modified). Plaintiff alleges the officers

“entered [his] home without cause or his consent.” 3d Am. Compl. ¶ 16.

And he clarifies that after the officers entered, he expressly told them they

did not have his consent. No allegations suggest plaintiff consented to the

officers’ entry to his home—either explicitly or by silence. So, consent

cannot serve as a basis to affirm the district court’s dismissal of plaintiff’s

unlawful arrest claim.

2

“Probable cause exists when the totality of facts and circumstances

within a police officer’s knowledge at the moment of arrest are sufficient for

a reasonable person to conclude that the suspect had committed or was

committing an offense.” Bailey v. Ramos, 125 F.4th 667, 675 (5th Cir. 2025)

(citation modified). The court uses an objective test, viewing the facts “from

the standpoint of an objectively reasonable police officer.” Id. (citation

modified). To state an unlawful arrest claim, a plaintiff must provide factual

support to “undercut any reasonable belief” that the plaintiff had committed

an offense. Green v. Thomas, 129 F.4th 877, 887 (5th Cir. 2025) (concluding

plaintiff alleged facts undercutting probable cause for murder in false arrest

claim).

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Here, the district court concluded that the complaint insufficiently

alleged the absence of probable cause for plaintiff’s arrest. Having reviewed

the district court’s thorough analysis, we agree. Plaintiff alleges that a “text

conversation,” caused by a “technological glitch/hack,” occurred with the

City’s 911 Emergency Operations Center. 3d Am. Compl. ¶¶ 10, 12. He

seemingly admits that he sent the text messages in question. As the district

court identified, plaintiff failed to allege anything about his conversation with

the officers that would negate probable cause. Plaintiff does not allege the

officers knew or should have known that the communications were

unintentional. His complaint is wholly lacking facts “undercut[ting] any

reasonable belief” that he had committed the offense in question. Green, 129

F.4th at 887. As the district court concluded, plaintiff failed to allege the

absence of probable cause.

3

The district court stopped at probable cause. But even with probable

cause, the arrest might still be unlawful if plaintiff alleged the absence of an

exigency justifying the intrusion into his home. See Kirk, 536 U.S. at 635

(criticizing as erroneous a decision finding no Fourth Amendment violation

for warrantless entry and arrest based on probable cause “[w]ithout deciding

whether exigent circumstances had been present”). We conclude that

plaintiff has alleged the officers proceeded without exigent circumstances,

thereby stating an unlawful arrest claim. 5

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5

The defendants never argued that exigent circumstances justified the officers’

entry into the home. To be sure, the word “exigent” does not appear in any of the

defendants’ briefing—on the motion to dismiss at the district court or in the briefing on

appeal. Because the government bears the burden, and unequivocally failed to carry that

burden, we could reverse on this ground alone. See Ybarra v. Davis, 489 F. Supp. 3d 624,

628 (W.D. Tex. 2020) (concluding plaintiff alleged facts sufficient to state claim for illegal

entry where defendants failed to argue any exigent circumstances justifying the entry into

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Exigent circumstances might include the “possibility that evidence

will be removed or destroyed, the pursuit of a suspect, and immediate safety

risks to officers and others.” Hogan, 722 F.3d at 731–32 (citation modified).

“When the totality of circumstances shows an emergency[,] . . . the police

may act without waiting” for a warrant. Lange v. California, 594 U.S. 295,

308 (2021). The warrantless entry must be “objectively reasonable” given

the “exigencies of the situation.” United States v. Turner, 125 F.4th 693, 704

(5th Cir. 2025) (citation modified). Plaintiff asserts that “law enforcement

officers must obtain a warrant before entering a home to make an arrest,

except in exigent circumstances.” 3d Am. Compl. ¶ 16. He notes that the

officers’ “actions in disregarding Mr. Harvey’s circumstances violated these

established constitutional protections.” Id. And, he alleges, “there was no

evidence indicating that [plaintiff] was unstable or intoxicated.” Id. ¶ 17.

What’s more, plaintiff alleges that he was “fully cooperating with the

officers.” Id. The complaint plausibly alleges the officers entered the home

without exigent circumstances.

Nothing in plaintiff’s complaint suggests this was the type of

emergent situation making entry without a warrant reasonable. No alleged

facts suggest plaintiff would destroy evidence or otherwise escape if officers

sought a warrant. See Lange, 594 U.S. at 301. Plaintiff admits that the officers

later claimed they feared for their safety if he reentered the home, but alleged

no facts to indicate he was dangerous, such that a reasonable officer would

believe entry was necessary to prevent injury. See Kentucky v. King, 563 U.S.

452, 464 (2011) (in addressing exigent circumstances, courts evaluate

“objective factors, rather than subjective intent”). True, plaintiff alleged

“there were no set policies or Standard Operating procedures in place for

_____________________

the home’s curtilage). But we conclude the factual allegations do not support exigent

circumstances, even if the government had argued as much.

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managing [911 texts,] thus placing Mr. Harvey in danger.” 3d Am. Compl.

¶ 10. Plaintiff clarified that in some situations “the caller might pose a danger

to themselves or others.” Id. These general allegations of “danger” from

the absence of police department policies do not rise to the level of an

emergency justifying warrantless entry into a home. And plaintiff’s

remaining allegations abate any notion of immediate danger. Before the

arrest, plaintiff alleged he “cooperated fully with the officers” without “fear

or hesitation.” Id. ¶ 12. He had twice entered his home unaccompanied by

an officer and without objection during the encounter without incident. Id.

¶ 17. Plaintiff’s allegations belie the conclusion that he pleaded an exigency,

in light of our exigent circumstances case law.

Put simply, the factual allegations do not present a “compelling need

for official action” suggesting there was “no time to secure a warrant” to

arrest plaintiff for this misdemeanor offense. 6 Lange, 594 U.S. at 301–02

(citation modified); id. at 309 (“When the nature of the crime, the nature of

the flight, and surrounding facts present no such exigency, officers must

respect the sanctity of the home—which means that they must get a

warrant.”); see also, e.g., Quinn v. Zerkle, 111 F.4th 281, 292 (4th Cir. 2024)

(citing Lange as holding that “pursuit of a suspected misdemeanant does not

present an exigent circumstance and therefore does not justify a warrantless

entry into a suspect’s home, absent another Fourth Amendment

exception”); Ordonez v. Gonzalez, No. EP-23-CV-99-KC, 2024 WL 1250181,

at *8 (W.D. Tex. Mar. 25, 2024) (“[A] suspected misdemeanant’s flight—

as opposed to a suspected felon’s flight—from officers trying to arrest her is

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6

Plaintiff alleges the officers investigated him under the “misdemeanor offense of

Silent and Abusive Calls to 9-1-1.” 3d Am. Compl. ¶ 15. We take judicial notice of this

Texas misdemeanor offense. See TEX. PENAL CODE ANN. § 42.061 (West 2013) (silent

or abusive calls to 9-1-1 service as Class B misdemeanor).

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usually insufficient, standing alone, to justify warrantless entry into the home

to arrest the suspect.” (citing Lange, 594 U.S. at 305–09)). Here, “the

complaint alone does not support the application of the exigent

circumstances exception.” Thomas v. Tex. Dep’t of Fam. & Protective Servs.,

427 F. App’x 309, 315 (5th Cir. 2011) (per curiam) (concluding plaintiff

plausibly stated unlawful entry claim against officer).

Plaintiff has plausibly stated a claim based on the officers’ allegedly

unlawful entry to his home, particularly given the officers’ failure to address

exigent circumstances in their filings. Cf. Linicomn v. Hill, 902 F.3d 529, 537–

38 (5th Cir. 2018) (concluding government had not carried burden to

demonstrate exigent circumstances in 12(c) motion for judgment on the

pleadings); Clark v. Henninger, 221 F.3d 1338, 2000 WL 968044, at *5 (7th

Cir. 2000) (concluding plaintiff had alleged “violation of clearly established

constitutional law” for warrantless arrest on 12(b)(6) motion where

defendant had “not argued . . . that exigent circumstances . . . justified the

entry into [plaintiff’s] home”). We REVERSE the district court’s dismissal

of plaintiff’s Fourth Amendment unlawful arrest claim against the

defendant-officers.

III

Plaintiff also asserts claims against the City: § 1983 Monell failure-to-

train/supervise claims and a Fourteenth Amendment equal protection claim.

A

We begin with plaintiff’s failure-to-train/supervise claims under

Monell v. Department of Social Services, 436 U.S. 658 (1978). Having reviewed

the district court’s thorough analysis of any potential Monell liability, we find

no error. The district court correctly concluded that plaintiff had not stated

a Monell claim. Plaintiff failed to allege an official policy under either a

widespread-practice or single-incident theory for any purported

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constitutional violations. The district court also correctly concluded that

plaintiff had not established a failure-to-train or failure-to-supervise theory of

municipal liability by failing to connect the City’s supposed deliberate

indifference to his constitutional rights with any allegedly defective training

program. At bottom, plaintiff’s allegations identified no official policy (or

conduct by a final policymaker) that was the “moving force” behind any

alleged constitutional violation. Piotrowski v. City of Houston, 237 F.3d 567,

578 (5th Cir. 2001).

Rather than identifying mistakes in the district court’s analysis and

emphasizing how his pleaded facts establish liability, plaintiff adds new

allegations and arguments not made below. Those efforts are improper—

regardless of their merits (or lack thereof). See Sexton v. Rollins, No. 24-

20296, 2025 WL 1410412, at *1 (5th Cir. May 15, 2025) (per curiam) (citing

Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999)) (declining

to evaluate new factual allegations in appellate brief when reviewing 12(b)(6)

dismissal). Plaintiff’s complaint does not state a municipal liability claim, so

the district court properly dismissed the failure-to-train/supervise claims

against the City.

B

The district court disposed of plaintiff’s equal protection claim

against the City, concluding that he had not stated a constitutional violation.

Plaintiff alleges the City selectively enforced the 911-abuse statute against

him when others were not charged. “The conscious exercise of some

selectivity in enforcement is not in itself a federal constitutional violation.”

Allred’s Produce v. U.S. Dep’t of Agric., 178 F.3d 743, 748 (5th Cir. 1999)

(citation modified). To assert a selective enforcement claim, a plaintiff must

allege that “the government official’s acts were motivated by improper

considerations, such as race, religion, or the desire to prevent the exercise of

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a constitutional right.” Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir.

2000) (first citing Allred’s Produce, 178 F.3d at 748; and then citing Stern v.

Tarrant Cnty. Hosp. Dist., 778 F.2d 1052, 1058 (5th Cir. 1985)).

Alternatively, a plaintiff can allege the selective enforcement was based on

some “other arbitrary classification.” Allred’s Produce, 178 F.3d at 748

(citation modified).

Even assuming plaintiff’s allegations supported Monell liability for this

claim, his complaint fails to allege any sort of “improper consideration[].”

Bryan, 213 F.3d at 277. Plaintiff does not suggest any reason why the statute

was enforced against him but merely concludes the action was “based on

impermissible factors.” 3d Am. Compl. at 10 (Count 8). His appellate brief

suggests that these decisions were based on his past criticism of city

leadership, which is an improper new allegation on appeal. The district court

correctly concluded plaintiff’s complaint failed to state a selective

enforcement claim under the Equal Protection Clause of the Fourteenth

Amendment.

We AFFIRM the district court’s dismissal of plaintiff’s claims

against the City.

IV

Plaintiff’s Notice of Appeal also challenged the district court’s denial

of his motion to reconsider under Rules 59(e) and 60(b). Because the district

court dismissed his complaint with prejudice and entered judgment, plaintiff

used this motion to request leave to amend. We review the denial of

plaintiff’s Rule 59(e) and 60(b) motion for abuse of discretion. Rosenzweig v.

Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (Rule 59(e)); BLOM Bank

SAL v. Honickman, 605 U.S. 204, 216 (2025) (Rule 60(b)).

A

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Plaintiff’s reconsideration argument in his opening brief is one

sentence—suggesting the district court erred in failing to consider newly

discovered evidence. Plaintiff never explains how this evidence was newly

discovered, although he references the evidence throughout his brief.

“[T]he failure to provide any legal or factual analysis of an issue results in

waiver of that issue.” Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,

260 n.9 (5th Cir. 1995). One sentence is not enough here. See United States

v. Green, 964 F.2d 365, 371 (5th Cir. 1992) (concluding appellant waived

issues referenced in one sentence and without analysis); United States v.

Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008) (“An appellant that fails to

adequately brief an issue in his opening brief waives that issue.”). Plaintiff

provides fulsome analysis only in his reply. But plaintiff’s effort “to address

[the motion to reconsider] in his reply brief comes too late.” Cavazos v. JP

Morgan Chase Bank Nat’l Ass’n, 388 F. App’x 398, 399 (5th Cir. 2010) (per

curiam). Even though he proceeds pro se, plaintiff waived his

reconsideration argument for newly discovered evidence under Rules 59(e)

and 60(b). Robinson v. Schneider, 614 F. App’x 222, 224 (5th Cir. 2015) (per

curiam) (concluding pro se appellant waived issue raised for the first time in

reply).

B

Despite his failure to address the standards for relief under Rules 59(e)

and 60(b), plaintiff’s opening brief decries the district court’s denial of leave

to amend. Because the district court entered judgment and closed his case,

plaintiff’s request for leave to amend must be resolved under Rules 59 or 60,

instead of Rule 15. Rosenzweig, 332 F.3d at 864. But in these circumstances,

“we review the district court’s denial of plaintiffs’ 59(e) motion for abuse of

discretion, in light of the limited discretion of Rule 15(a).” Id.

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In evaluating whether the district court erred in denying leave to

amend we consider: “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of the

allowance of the amendment, [and] futility of the amendment.” Id. (quoting

Foman v. Davis, 371 U.S. 178, 182 (1962)). A district court does not abuse its

discretion when it denies leave to amend for any of those “substantial

reason[s].” U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014).

Plaintiff has amended his complaint at least three times already. After

plaintiff filed his first amended complaint, defendants moved to dismiss

under Rule 12(b)(6). Plaintiff responded, maintaining the sufficiency of his

complaint. But he filed a second amended complaint a few days later. The

parties then conducted some discovery, and plaintiff was granted leave to

amend a third time. Thereafter, defendants filed the motions to dismiss

pertinent to this appeal, raising many arguments similar to those in the

defendants’ earlier motions to dismiss.

Although the district court did not rule on the previous motions to

dismiss, we conclude that plaintiff has repeatedly failed to cure deficiencies

by previous amendments. See, e.g., Jacquez v. Procunier, 801 F.2d 789, 793

(5th Cir. 1986) (“From the moment the defendants filed their answer . . . ,

the plaintiff was on notice that his complaint might not be sufficient to state

a cause of action.”); Olson v. Wallace Comput. Servs., Inc., 95 F.3d 54, 1996

WL 460090, at *1 (5th Cir. 1996) (per curiam) (noting that “motion to

dismiss gave [plaintiff] clear notice of the deficiencies in her original

complaint”). Plaintiff “had several opportunities to plead sufficient facts to

state a claim . . . but failed to do so.” Wray v. Home Depot USA, Inc., 858 F.

App’x 777, 778 (5th Cir. 2021) (per curiam). The district court did not abuse

its discretion by dismissing plaintiff’s claims with prejudice and without leave

to amend. See id.; Roe v. United States, 839 F. App’x 836, 848 (5th Cir. 2020)

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(per curiam) (“Where prior amendments failed to cure deficiencies in the

pleadings, it is not an abuse of discretion to deny leave to amend further.”).

And, in any case, plaintiff’s motion to reconsider did not include the

new facts he would plead to cure deficiencies. While plaintiff referenced a

list of “new evidence,” he failed to explain how that new evidence cured the

deficiencies the district court identified. Plaintiff then explained several

“errors of law and fact” in the district court’s ruling, but largely repeated

allegations from his complaint. His motion did little to connect any new

allegations to the deficiencies the court identified—or explain how they cure

those deficiencies. Tellingly, plaintiff’s appellate brief contains numerous

new factual allegations that did not appear in his latest complaint—or in his

reconsideration motion. Absent those efforts on the motion to reconsider,

the district court could not have determined whether any amendment was

futile. We cannot conclude the district court abused its discretion in denying

leave to amend. See Rosenzweig, 332 F.3d at 865 (concluding district court

did not abuse its discretion in denying leave to amend where plaintiffs failed

to attach proposed amended complaint, “leaving the district court to

speculate as to how these seemingly redundant facts might amount to a legal

claim”).

V

Before the district judge ruled on the motions to dismiss, defendants

filed Rule 56 summary judgment motions. The summary judgment evidence

included footage from two body cameras, along with other exhibits. At

plaintiff’s request, the court viewed the body camera evidence but did not

find it pertinent to include at the motion to dismiss stage. The district court

did not include the body camera evidence in its order of dismissal. And,

despite plaintiff’s familiarity with law enforcement practices, the complaint

does not reference the body cameras in any way. See Harmon v. City of

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Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (recognizing on 12(b)(6) motion

ability to review video recordings “included in the pleadings” and adopt

video depiction to extent video “blatantly contradicts” complaint allegations

(citation modified)). We decline to consider this evidence on review of a

12(b)(6) motion, confining our analysis to the allegations in plaintiff’s Third

Amended Complaint.

We remand plaintiff’s Fourth Amendment unlawful arrest claim and

any questions about the officers’ entitlement to qualified immunity. The

district court is suited to review the body camera footage and answer qualified

immunity questions in the first instance when reviewing the officers’ pending

summary judgment motion.

VI

Aside from its erroneous dismissal of plaintiff’s unlawful arrest claim,

the district court correctly dismissed plaintiff’s Third Amended Complaint.

And the district court did not abuse its discretion by denying plaintiff’s

reconsideration motions and denying plaintiff leave to amend his complaint

yet another time. We AFFIRM in part and REVERSE in part the district

court’s order dismissing plaintiff’s Third Amended Complaint. And we

AFFIRM the district court’s denial of plaintiff’s reconsideration motion.

We REMAND for further proceedings consistent with this opinion,

including consideration of the officers’ pending motion for summary

judgment.

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