The opinion
Case: 16-30734 Document: 00513968713 Page: 1 Date Filed: 04/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30734
Fifth Circuit
FILED
April 26, 2017
AARON JUDE JORDAN, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
OFFICER DEREK BRUMFIELD; NEW ORLEANS CITY,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-1922
Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
Aaron Jordan appeals the dismissal of his 42 U.S.C. § 1983 claim against
Officer Derek Brumfield and the City of New Orleans (the “City”). Jordan
alleges that Officer Brumfield, in his individual and official capacity, violated
Jordan’s constitutional rights when he obtained an arrest warrant for Jordan
on stalking charges without probable cause. He also asserts municipal liability
against the City for failure to supervise and failure to train. The district court
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-30734 Document: 00513968713 Page: 2 Date Filed: 04/26/2017
No. 16-30734
dismissed Jordan’s § 1983 claims under Federal Rule of Civil Procedure
12(b)(6) with prejudice, denying him leave to amend. After consideration of
Jordan’s claims, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY 1
Jordan’s first contact with the Sens family occurred in 2009, when Judge
Paul Sens, then a New Orleans Municipal Court judge, tried and convicted
Jordan for criminal trespass. Nothing further happened until 2012. That year,
New Orleans Inspector General Ed Quatreveaux issued a letter critical of
Judge Sens’ practice of hiring family members for positions at the New Orleans
Municipal Court. The letter included a list of Judge Sens’ relatives who worked
at the municipal court, as well as their income. Included on that list was Judge
Sens’ niece, Lenee Sens-Crowley, and her husband, Dan Crowley, both of whom
worked as minute clerks for the court.
After Jordan heard media reports about the Inspector General’s
criticism, he took it upon himself to disseminate this news to the Sens’ personal
and professional associates. Jordan sent four different letters concerning the
Sens’ family, each to multiple recipients. His first letter, dated July 4, 2013,
went to judges on the New Orleans Municipal Court, Traffic Court, and First
and Second City Courts, and it mentioned both Judge Sens and his family.
Jordan sent the second letter, dated August 26, 2013, to a local realty firm once
he discovered Lenee Sens-Crowley and the Judge’s wife, Ann Sens, worked
there; the letter concerned both women. The third letter, dated May 18, 2014,
concerned Ann Sens and was sent to another realty company. The final letter,
sent on an unspecified day in May 2014, concerned Ann Sens and was sent to
clients of the realty firm where she and Lenee Sens-Crowley worked. The
1 Because this appeal is from a motion to dismiss, the facts are taken from the
complaint, accepted as true, and presented in the light most favorable to Jordan. See Brown
v. Miller, 519 F.3d 231, 234 (5th Cir. 2008).
2
Case: 16-30734 Document: 00513968713 Page: 3 Date Filed: 04/26/2017
No. 16-30734
letters were based on the allegations in the Inspector General’s letter and
related news reports, along with Jordan’s opinions. They did not contain any
threats or false statements.
In 2014, Jordan founded a citizens’ group to patrol the French Quarter
composed of concealed-carry permit holders. A local news station interviewed
Jordan about the group on May 29, 2014. Lenee Sens-Crowley made a police
report after this news story aired, and Officer Brumfield applied for a warrant
for Jordan’s arrest. Attached to the warrant was the following affidavit:
ON 5-30-2014 AT ABOUT 5:40PM, MS. CROWLEY STATED
THAT A SUBJECT KNOWN TO HER AS AARON JUDE
JORDAN, IS INTENTIONALLY AND REPEATEDLY
HARASSING HER BY SENDING LETTERS TO EMPLOYERS
AND CLIENTS. MS. CROWLEY STATED THAT THE
(SUBJECT) ARRON JUDE JORDAN, HAS HARASSED THE
STAFF FOR WHOM HAS [sic] WORKED IN THE COURTS
DURING THE TIME HE HAD A CASE IN WHICH HE WAS
CONVICTED FOR TRESPASSING IN 2009. MS. CROWLEY
STATED THAT THE (SUBJECT) HAS ALSO HARASSED THE
JUDGE WHO SENTENCES [sic] HIM AND THE JUDGES [sic]
WIFE AND FAMILY. MS. CROWLEY FURTHER STATED THAT
THIS ON GOING [sic] HARASSMENT BY THE (SUBJECT)
AARON JUDE JORDAN HAS MADE HER SUFFER
EMOTIONAL DISTRESS, AND AFTER LEARNING THAT THE
(SUBJECT) WAS KNOWN TO BE A GUN ADVOCATE HAS HER
IN AND [sic] EVEN MORE STATE OF FEAR OF THE
(SUBJECT) ACTING OUT AGAINST HER AND HER FAMILY.
Once the warrant issued, Jordan turned himself in to police. The District
Attorney’s Office ultimately declined to prosecute.
Jordan sued under 42 U.S.C. § 1983, bringing claims against Officer
Brumfield in his individual and official capacity and against the City for failure
to train. He claimed Officer Brumfield violated his rights under the Fourth,
Fourteenth, and Eighth Amendments when he applied for a warrant without
probable cause. Jordan also brought numerous state law tort claims. Officer
3
Case: 16-30734 Document: 00513968713 Page: 4 Date Filed: 04/26/2017
No. 16-30734
Brumfield asserted qualified immunity, and both he and the City moved to
dismiss under Federal Rule of Civil Procedure 12(b)(6). After allowing both
sides to file motions in support and in reply to the motion to dismiss, as well
as surreplies, the district court dismissed Jordan’s § 1983 claims with
prejudice based on qualified immunity. After dismissing all federal claims, the
district court declined to exercise supplemental jurisdiction over the state law
claims. The district court also denied Jordan leave to amend his complaint.
Jordan timely appealed.
II. STANDARD OF REVIEW
This court reviews a Rule 12(b)(6) dismissal de novo, “accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to the
plaintiff.” Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015) (quoting
True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). Still, a complaint must be
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
plaintiff’s “[f]actual allegations must . . . raise a right to relief above the
speculative level.” New Orleans City v. Ambac Assurance Corp., 815 F.3d 196,
200 (5th Cir. 2016) (quoting Twombly, 550 U.S. at 555). We need not “accept
as true a legal conclusion couched as a factual allegation.” Bass v. Stryker
Corp., 669 F.3d 501, 507 (5th Cir. 2012) (quoting Twombly, 550 U.S. at 555).
When reviewing the dismissal, this court is “not restricted to ruling on the
district court’s reasoning, and may affirm . . . on a basis not mentioned in the
district court’s opinion.” Gulf Gaur. Life Ins. Co. v. Conn. Gen. Life Ins. Co.,
304 F.3d 476, 486 (5th Cir. 2002) (quoting In re Comshare, Inc. Sec. Litig., 183
F.3d 542, 548 (6th Cir. 1999)).
4
Case: 16-30734 Document: 00513968713 Page: 5 Date Filed: 04/26/2017
No. 16-30734
Denial of leave to amend a complaint is reviewed for abuse of discretion.
Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). “However, where a
district court’s denial solely was based on futility, this court applies a de novo
standard identical, in practice, to the standard used for reviewing a motion to
dismiss for failure to state a claim.” Id. (citing Wilson v. Bruks–Klockner, Inc.,
602 F.3d 363, 368 (5th Cir. 2010)).
III. DISCUSSION 2
On appeal, Jordan urges that the district court erred by (1) failing to
apply the proper Rule 12(b)(6) standard, (2) dismissing his Malley claim
against Officer Brumfield, (3) dismissing his failure-to-supervise and failure-
to-train claims, and (4) denying him leave to amend his complaint.
Jordan first claims that the district court impermissibly required him to
anticipate the qualified immunity defense; however, it is well established that
a plaintiff must plead facts sufficient to overcome qualified immunity. Backe
v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); see also Club Retro, L.L.C. v.
Hilton, 568 F.3d 181, 207 (5th Cir. 2009) (“[P]laintiffs must allege facts
permitting an inference that defendants lacked arguable (that is, reasonable
but mistaken) probable cause . . . .”). When a defendant claims qualified
immunity, the district court may, at its discretion, request that the plaintiff
reply to a pleading that asserts qualified immunity, and it should ordinarily
permit such a reply. Schultea v. Wood, 47 F.3d 1427, 1433–34 (5th Cir.
1995) (en banc). The district court permitted Jordan the opportunity to file a
reply and a surreply, so we perceive no error in the district court’s handling of
qualified immunity in this case.
2 We restrict our analysis to Jordan’s § 1983 claims because the district court’s
decision to exercise jurisdiction over his state law claims turned on whether he had stated a
valid § 1983 claim.
5
Case: 16-30734 Document: 00513968713 Page: 6 Date Filed: 04/26/2017
No. 16-30734
1. Malley Claim 3
First, Jordan asserts that Officer Brumfield violated his constitutional
rights when he applied for a warrant without probable cause. He insists that
the warrant was so deficient that “no reasonable officer would have submitted
the application,” so qualified immunity is inapplicable. According to Jordan,
Officer Brumfield is not entitled to qualified immunity because (1) he plausibly
pleaded that Officer Brumfield misled the judge when applying for the
warrant, (2) the warrant is bare-bones, (3) Jordan’s conduct satisfied none of
the elements of simple or felony stalking, and (4) his letters constituted
protected free speech. We disagree.
Qualified immunity is a powerful defense that protects “all but the
plainly incompetent or those who knowingly violate the law.” Whitley, 726 F.3d
at 638 (quoting Malley, 475 U.S. at 341). Once invoked, the plaintiff bears the
burden of showing that qualified immunity does not apply. Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008). A plaintiff must show “(1) that the
official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.” Morgan v. Swanson,
659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)). Since the plaintiff must prove both prongs, this court
maintains the discretion to decide which prong to address first. Id.
When applying for an arrest warrant, an officer will have “qualified
immunity from suit unless, ‘on an objective basis, it is obvious that no
reasonably competent officer would have concluded that a warrant should
3 All parties and the district court referred to Jordan’s action as a false arrest claim,
but since Officer Brumfield only applied for a warrant for his arrest, Jordan is actually
asserting a Malley claim. See Malley v. Briggs, 475 U.S. 335 (1986). As a practical matter,
this does not change our analysis because the district court correctly analyzed whether the
warrant issued based on probable cause.
6
Case: 16-30734 Document: 00513968713 Page: 7 Date Filed: 04/26/2017
No. 16-30734
issue.’” Spencer v. Staton, 489 F.3d 658, 661 (5th Cir. 2007) as revised (July
26, 2007) (quoting Malley, 475 U.S. at 341). A warrant issued “by a non-biased
magistrate is the ‘clearest indication’ that officers proceeded ‘in an objectively
reasonable manner.’” United States v. Triplett, 684 F.3d 500, 504 (5th Cir.
2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 547 (2012)). Even
when a warrant has issued, an officer can be held liable when “a reasonably
well-trained officer would have known that the search [or seizure] was illegal
despite the magistrate’s authorization.” Id. (quoting United States v. Leon, 468
U.S. 897, 922 n.23 (1984)). Relevant to this appeal, our court has held that an
officer is not entitled to rely on a warrant when (1) the affiant intentionally
misled the judge by including false information or acting in reckless disregard
of the truth, or (2) “the warrant is based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable.” Id. (quoting United States v. Payne, 341 F.3d 393, 399–400 (5th
Cir. 2003)).
We begin with the first prong of the qualified immunity analysis to
determine whether Jordan has sufficiently alleged a violation of a statutory or
constitutional right. See Morgan, 659 F.3d at 371. We conclude that he has
not.
Jordan first claims that the district court impermissibly drew inferences
that Officer Brumfield acted in good faith when applying for the warrant and
that he did not mislead the judge when applying for a warrant. See Triplett,
684 F.3d at 504. In essence, Jordan argues that Officer Brumfield applied for
the warrant in retaliation for his founding of the concealed-carry permit group.
However, the district court did not draw inferences in favor of Officer
Brumfield; rather, the court simply could not draw a reasonable inference
against Officer Brumfield based on the facts pleaded. See Iqbal, 556 U.S. at
678. The complaint contains no allegations that Officer Brumfield
7
Case: 16-30734 Document: 00513968713 Page: 8 Date Filed: 04/26/2017
No. 16-30734
misrepresented Lenee Sens-Crowley’s statements when applying for the
warrant or that he should have had any reason to mistrust her statements. An
officer may rely on a statement by a witness to supply probable cause. Cf.
Bennett v. City of Grand Prairie, 883 F.2d 400, 405–06 (5th Cir. 1989)
(concluding that probable cause for a warrant can be found based on hearsay,
information from informants, or circumstantial evidence if the affiant believes
or appropriately accepts the information as true); Shadley v. Grimes, 405 F.
App’x 813, 815 (5th Cir. 2010) (per curiam) (stating that an officer had probable
cause when “nothing in [the witness’s] demeanor, appearance, or account
caused [the officer] to believe or suspect that [the witness] was wrong or lying”).
Indeed, the affidavit includes all information Officer Brumfield had, including
Jordan’s gun advocacy. 4 Therefore, we uphold the district court’s
determination that Officer Brumfield did not mislead the judge in his affidavit.
Next, Jordan claims he pleaded a constitutional violation on the grounds
that the warrant application was “bare-bones” and “conclusory,” 5 such that no
reasonable officer would have relied on the warrant. See Triplett, 684 F.3d at
504. According to Jordan, the word “harass” is a conclusory statement, and
the warrant does not define how his sending letters—and other actions—
constituted harassing. An arrest warrant must include “an affidavit
specifying . . . the nature, date, and place of the offense, and the name and
surname of the offender if known, and of the person injured if there be any.”
La. C. Crim. P. art. 202(A)(1); see also, Fed. R. Crim. P. 4.
4 The affidavit is properly considered as part of the pleadings because Jordan refers
to it in his complaint and it is central to his claim. See Causey v. Sewell Cadillac-Chevrolet,
Inc., 394 F.3d 285, 288 (5th Cir. 2004).
5 “Bare-bones” affidavits are those that contain “wholly conclusory statements, which
lack the facts and circumstances from which a magistrate can independently determine
probable cause.” United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992).
8
Case: 16-30734 Document: 00513968713 Page: 9 Date Filed: 04/26/2017
No. 16-30734
Here, the warrant details specific actions Jordan allegedly took sufficient
that a judge could “independently determine probable cause.” United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). The affidavit states the source
of the information relied upon in the warrant, the witness—and alleged
victim—Lenee Sens-Crowley. It indicates that Jordan’s actions first started in
2009 and were ongoing at the time of the affidavit. It also indicates specific
acts Jordan allegedly performed: sending letters to Lenee Sens-Crowley’s
employers and clients and harassing staff in the court where Jordan was
convicted of trespassing. Lenee Sens-Crowley further represented to Officer
Brumfield that Jordan’s behavior caused her emotional distress. Although this
was not a model affidavit, the warrant describes Jordan’s conduct with some
specificity, such that we cannot say “it is obvious that no reasonably competent
officer would have concluded that a warrant should issue.” Malley, 475 U.S. at
341.
Jordan’s attempt to draw a parallel between the “classic bare bones
affidavit” in Spencer and the affidavit in the warrant for his arrest is
unconvincing. 6 See 489 F.3d at 661 n.2. The warrant in Spencer recites the
offense and then adds a conclusory statement that the individual performed
that offense. Id. In contrast, the information provided in Officer Brumfield’s
6The affidavit in that case provided:
BEFORE ME, the undersigned authority, personally came and appeared, LT.
JACK STATON—DETECTIVE of SPSO P.O. BOX 1440, MANY, LA., Zip Code
71449, who, having been by me duly sworn, did depose and say that on the
24TH day of AUGUST, 2003, one BERNICE LOUISE SPENCER committed
the offense of ACCESSORY AFTER THE FACT, LA.R.S.14:25 TO FIRST
DEGREE MURDER, LA.R.S.14:30 within this state and Parish at PLEASANT
HILL, LA. The affiant states that the accused committed the above described
offense based on the following information: THIS SUBJECT DID HELP HER
HUSBAND, JOHN GLENN SPENCER AND VASCO T. ZINNERMAN, and
EVADE LAW ENFORCEMENT OFFICERS AFTER THE TWO HAD
COMMITTED ARMED ROBBERY AND FIRST DEGREE MURDER.
Spencer v. Staton, 489 F.3d 658, 661 n.2 (5th Cir. 2007) as revised (July 26, 2007).
9
Case: 16-30734 Document: 00513968713 Page: 10 Date Filed: 04/26/2017
No. 16-30734
affidavit does not appear to be “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.” Messerschmidt,
565 U.S. at 547 (quoting Leon, 468 U.S. at 923).
Next, Jordan alleges that his conduct satisfied none of the elements of
simple stalking or felony stalking under Louisiana Revised Statutes section
14:40.2. Simple stalking requires conduct that is (1) intentional, (2) repeated,
(3) following or harassing, and (4) capable of causing a reasonable person to
feel emotional distress. Id. § 14:40.2(A). Felony stalking has the additional
requirement that the defendant place the victim “in fear of death or bodily
injury.” Id. § 14:04.2(B)(2)(a). The applicable standard is whether Jordan has
“allege[d] facts permitting an inference that defendants lacked arguable (that
is, reasonable but mistaken) probable cause.” Club Retro, 568 F.3d at 207.
Jordan’s ultimate innocence of the crime of stalking does not speak to whether
he has asserted a plausible constitutional violation. See Deville v. Marcantel,
567 F.3d 156, 165 (5th Cir. 2005) (per curiam) (“[E]vidence that the arrestee
was innocent of the crime is not necessarily dispositive of whether the officer
had probable cause to conduct the arrest.”). On its face, the affidavit only
accuses Jordan of stalking, not felony stalking, so its heightened requirements
do not factor into whether Officer Brumfield had probable cause. Even if the
court concluded that Jordan’s actions could not have resulted in a conviction
for stalking, we hold that any mistake by Officer Brumfield was reasonable. 7
See Staton, 489 F.3d at 661.
7 Jordan’s strongest claim that Officer Brumfield lacked probable cause is that
Louisiana courts have overturned a conviction for stalking when the evidence did not
establish any communication with the victim. See State v. Ryan, 969 So. 2d 1268, 1274 (La.
Ct. App. 2007). But the standard to convict an individual is much higher than the standard
for probable cause. It was reasonable for Officer Brumfield to believe that probable cause
existed based on the multiple letters Jordan sent to Lenee Sens-Crowley’s personal and
business associates, especially since the statute states harassment can include sending
letters. La. Rev. Stat. ann. § 14:40.2(C)(1).
10
Case: 16-30734 Document: 00513968713 Page: 11 Date Filed: 04/26/2017
No. 16-30734
Finally, Jordan argues that his letters were constitutionally protected
free speech that could not form the basis of a stalking charge. Even assuming
that the letters are protected free speech, Jordan’s claim still fails. The
warrant makes clear that Jordan relied on the testimony of Lenee Sens-
Crowley, not the letters, to establish probable cause for the warrant. The
testimony of a witness can establish probable cause. See Shadley, 405 F. App’x
at 815. Jordan’s complaint never alleges that Officer Brumfield viewed the
letters or had personal knowledge about the content of the letters.
We therefore hold that the district court did not err in finding that
Officer Brumfield was entitled to qualified immunity.
2. Monell Liability
Jordan next urges that the district court erred when it dismissed his
claims against the City. He avers that he has pleaded sufficient factual
allegations to establish a failure-to-train claim. Jordan additionally claims
that the district court erred in not taking judicial notice of similar acts of
misconduct by the New Orleans Police Department (“NOPD”). We are not
persuaded.
A claim against an officer in his official capacity is treated as a claim
against the municipality. Brooks v. George Cty., 84 F.3d 157, 165 (5th Cir.
1996). The Supreme Court set forth the standard governing municipal liability
under 42 U.S.C. § 1983 in Monell v. Department of Social Services, 436 U.S.
658, 694 (1978). To establish liability against a city for failure to train, the
plaintiff must establish: “(1) that the municipality’s training procedures were
inadequate, (2) that the municipality was deliberately indifferent in adopting
its training policy, and (3) that the inadequate training policy directly caused
the violations in question.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 170
(5th Cir. 2010).
11
Case: 16-30734 Document: 00513968713 Page: 12 Date Filed: 04/26/2017
No. 16-30734
Jordan has failed to adequately plead deliberate indifference, which
ordinarily requires a pattern of similar conduct. See Connick v. Thompson, 563
U.S. 51, 62 (2011). Jordan does not allege similar actions by other officers, and
his pleadings fail to give rise to a plausible inference that Officer Brumfield’s
action could give rise to Monell liability based on a single incident. See City of
Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) (hypothesizing that a city
giving officers firearms and requiring them to arrest fleeing subjects without
training could create single incident liability).
Nor did the court err in declining to take judicial notice of similar
violations by the NOPD. Jordan relies on the Department of Justice’s 2011
report (“DOJ report”) of abuses within the NOPD as the primary source from
which the court should have taken judicial notice. The DOJ’s report does
mention that New Orleans Police Officers “too frequently . . . conduct
illegal . . . arrests with impunity.” However, Jordan does not claim that the
report contains similar allegations to the one at issue in his case—that officers
are applying for arrest warrants without probable cause. Moreover, we find
persuasive the reasoning of a district court that held the report, by itself,
cannot establish a pattern of repeated conduct. Barrios-Barrios v. Clipps, 825
F. Supp. 2d 730, 750–51 (E.D. La. 2011). The DOJ report states that it does
not assert culpability for any unconstitutional acts. Id. at 751. Therefore, the
district court was under no obligation to take judicial notice of a pattern of
unconstitutional acts based on the DOJ report.
The district court primarily relied on the independent intermediary
doctrine to demonstrate that Jordan cannot show a causal connection between
any alleged failure to train and a violation of his rights. Under this court’s
independent intermediary doctrine, if the facts supporting a warrant are put
before an independent intermediary, then that intermediary’s neutral decision
breaks any causal chain and insulates the affiant from liability. See Buehler
12
Case: 16-30734 Document: 00513968713 Page: 13 Date Filed: 04/26/2017
No. 16-30734
v. City of Austin, 824 F.3d 548, 553–54 (5th Cir. 2016) appeal docketed, No. 16–
729 (Dec. 5, 2016). Neither in the court below nor on appeal has Jordan
attempted to overcome the independent intermediary doctrine. Thus, the
district court did not err in concluding that Jordan had not pleaded sufficient
facts to establish causation.
3. Leave to Amend
Federal Rule of Civil Procedure Rule 15(a) states that leave to amend
should be freely given when justice so requires. “[T]he language of this rule
evinces a bias in favor of granting leave to amend,” and “[a] district court must
possess a ‘substantial reason’ to deny a request.” Smith v. EMC Corp., 393
F.3d 590, 595 (5th Cir. 2004). Futility is one such reason. See id.
“A formal motion [to amend] is not always required, so long as the
requesting party has set forth with particularity the grounds for the
amendment and the relief sought.” United States ex rel. Willard v. Humana
Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003). Yet, a party that
asserts only a bare request in an opposition to a motion to dismiss without
specifying the particular grounds for amendment has not brought a proper
request to amend. Id.
Jordan has waived any request to amend his complaint against Officer
Brumfield in his individual capacity. In both the court below and on appeal,
Jordan only requested that he be granted leave to amend in order to satisfy
Monell liability by pleading additional facts of illegal arrests. Although Jordan
urged below that he “be granted thirty (30) days leave to amend his complaint”
should the court find “further factual allegations are necessary against any
defendant,” this is the sort of bare statement that does not constitute a proper
request to amend. See Willard, 336 F.3d at 387; United States ex rel. Herbert
v. Dizney, 295 F. App’x 717, 725 n.3 (5th Cir. 2008). Jordan has not specified
any grounds for amendment of his claims against Officer Brumfield.
13
Case: 16-30734 Document: 00513968713 Page: 14 Date Filed: 04/26/2017
No. 16-30734
We also conclude that Jordan’s request for leave to amend his complaint
to establish Monell liability would be futile. Neither in the court below nor on
appeal has Jordan alleged additional facts that would overcome the
independent intermediary exception and thus establish causation. See
Buehler, 824 F.3d at 548. Any amendment is futile if Jordan cannot establish
causation, which is an essential element of a failure-to-train claim. See
Zarnow, 614 F.3d at 170.
The district court did not abuse its discretion when denying leave to
amend. See Whitley, 726 F.3d at 638.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
14
Case: 16-30734 Document: 00513968713 Page: 15 Date Filed: 04/26/2017
No. 16-30734
JAMES L. DENNIS, Circuit Judge, concurring in part and concurring in the
judgment:
I fully concur in the majority opinion’s affirmance of the district court’s
dismissal of Aaron Jordan’s Monell claim and its denial of his motion for leave
to amend his complaint. I cannot concur in the majority’s analysis of Jordan’s
Malley claim against Officer Brumfield, because I am convinced that any
reasonable officer in Brumfield’s position would have recognized that the
warrant affidavit at issue in this case was not supported by probable cause.
However, because Jordan failed to sufficiently brief his claim, I concur in the
judgment.
*
An officer whose request for a warrant allegedly caused an
unconstitutional arrest is not protected by qualified immunity, even where the
warrant was issued by a neutral magistrate, if “it is obvious that no reasonably
competent officer would have concluded that a warrant should issue.” Malley
v. Briggs, 475 U.S. 335, 341 (1986). Under this rule, the “shield of immunity”
otherwise conferred by the warrant will be lost where the warrant was “based
on an affidavit so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Messerschmidt v. Millender, 565 U.S.
535, 547 (2012) (quoting United States v. Leon, 468 U.S. 897, 923 (1984))
(internal quotation marks omitted).
In Messerschmidt, the Supreme Court considered a claim against police
officers who had allegedly exceeded the scope of a search warrant. A woman
reported that her partner “had attacked her after becoming ‘angry because she
had called the Sheriff’s Department’” and “mentioned that [the suspect] was
‘an active member of the ‘Mona Park Crips,’” a local gang; interviews revealed
15
Case: 16-30734 Document: 00513968713 Page: 16 Date Filed: 04/26/2017
No. 16-30734
that the suspect had shot at the victim with “a black sawed-off shotgun with a
pistol grip.” Id. at 540. The investigating officer prepared a warrant for a
search of the house of the suspect’s foster mother, where the victim thought
the suspect might be hiding. The warrant broadly described the property that
would be the object of the search, including “[a]ll handguns, rifles, or shotguns
of any caliber, or any firearms capable of firing ammunition” and “[a]rticles of
evidence showing street gang membership or affiliation with any Street Gang.”
Id. at 541. The warrant was supported by an affidavit that “explained why
Messerschmidt believed there was sufficient probable cause to support the
warrant,” including descriptions of the assault, the shotgun, and the suspect’s
possible gang ties. Id. at 542. When the search warrant was executed, officers
did not find the suspect or his weapon; they did, however, find and seize “[the
foster mother’s] shotgun, a California Social Services letter addressed to [the
suspect], and a box of .45-caliber ammunition.” Id. at 543.
The foster mother and her family sued, arguing that the warrant was
invalid under the Fourth Amendment. The district court denied the officers
qualified immunity, and the Ninth Circuit, sitting en banc, affirmed. The
Supreme Court reversed, explaining: “Whether any of the[] facts, standing
alone or taken together, actually establish probable cause is a question we need
not decide. . . . The officers’ judgment that the scope of the warrant was
supported by probable cause may have been mistaken, but it was not ‘plainly
incompetent.’” Id. at 553 (quoting Malley, 475 U.S. at 341).
The threshold for establishing that a warrant signed by a magistrate is
not supported by probable cause is thus indeed a high one. To hold that an
officer’s conclusion that a warrant was supported by probable was “plainly
incompetent,” id., this court must determine that the affidavit “contain[s]
wholly conclusory statements, which lack the facts and circumstances from
16
Case: 16-30734 Document: 00513968713 Page: 17 Date Filed: 04/26/2017
No. 16-30734
which a magistrate [could] independently determine probable cause,” United
States v. Moore, 805 F.3d 590, 594 (5th Cir. 2015) (quoting United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992)) (internal quotation marks
omitted). An evaluation of probable cause necessarily involves consideration
of the relevant criminal statute. See Babb v. Dorman, 33 F.3d 472, 478 (5th
Cir. 1994). Although “[a]n officer on the beat is not expected to have and apply
the knowledge of a constitutional scholar,” our caselaw does require “that he
act in accordance with what a reasonable officer should or should not know
about the law he is enforcing.” Id. (quoting Gassner v. City of Garland, Tex.,
864 F.2d 394, 397 (5th Cir. 1989)) (internal quotations and citation omitted).
Under Louisiana law, simple stalking is the “[(1)] intentional and [(2)]
repeated [(3)] following or harassing of another person [(4)] that would cause a
reasonable person to feel alarmed or to suffer emotional distress.” La. Rev.
Stat. § 14:40.2(A). For any reasonable officer to have concluded that
Brumfield’s affidavit established probable cause to arrest Jordan for stalking,
that officer would need to believe that the conduct described therein satisfied
each of these elements. See Babb, 33 F.3d at 479. The majority opinion asserts
that, because “the warrant describes Jordan’s conduct with some specificity,
. . . we cannot say ‘it is obvious that no reasonably competent officer would have
concluded that a warrant should issue.’” Op. at 9 (quoting Malley, 475 U.S. at
341). I agree with the majority opinion that the affidavit contained more than
conclusory allegations relating to the first three elements of simple stalking.
But because the affidavit contained no facts that could satisfy the fourth
element, I must conclude that it was fatally deficient.
Before the district court and before this court, Brumfield presented his
affidavit as an accurate summary of the statement that Lenee Sens-Crowley
gave him. As the majority opinion notes, this statement was the only
17
Case: 16-30734 Document: 00513968713 Page: 18 Date Filed: 04/26/2017
No. 16-30734
information that Brumfield relied upon when drafting the affidavit; he did not
himself review the letters that Jordan sent to Sens Crowley’s associates. Op.
at 11. And yet there is nothing in the affidavit to suggest that the letters, or
any other aspect of Jordan’s conduct, were capable of “caus[ing] a reasonable
person to feel alarmed or to suffer emotional distress,” as required by
§ 14:40.2(A). To be sure, the majority opinion states that “Lenee Sens-Crowley
. . . represented to Officer Brumfield that Jordan’s behavior caused her
emotional distress.” Op. at 9. But the complainant’s subjective response to the
defendant’s conduct is insufficient to establish the effect it would have on a
reasonable person, which is precisely what the final element of stalking is
meant to address.
In a 42 U.S.C. § 1983 action alleging false arrest, “[w]e look to the
totality of the circumstances to determine whether probable cause, or . . .
arguable probable cause, existed.” Mendenhall v. Riser, 213 F.3d 226, 231 (5th
Cir. 2000) (citing Illinois v. Gates, 462 U.S. 213, 241 (1983)). Here, the affidavit
did not allege any facts that could reasonably support a belief that the totality
of Jordan’s conduct, including his letters, “would cause a reasonable person to
feel alarmed or to suffer emotional distress.” See La. Rev. Stat. § 14:40.2(A).
Because the record before this court reveals no facts known to Brumfield, and
certainly no fact included in the affidavit, that could have supported an
essential element of the crime of stalking, I submit that the officer’s judgment
that the warrant was supported by probable cause was not merely “mistaken,”
see Messerschmidt, 565 U.S. at 553; in Brumfield’s place, “no officer of
reasonable competence would have requested the warrant,” see Malley, 475
U.S. at 346 n.9. Because the majority opinion does not address the affidavit’s
deficiency, I cannot join in its analysis of this issue.
18
Case: 16-30734 Document: 00513968713 Page: 19 Date Filed: 04/26/2017
No. 16-30734
I do, however, agree with the majority that the judgment of the district
court should be affirmed. This court has reiterated that an issue not raised in
a party’s opening brief is generally forfeited. E.g., Jefferson Cmty. Health Care
Ctrs., Inc. v. Jefferson Par. Gov’t, 849 F.3d 615, 626 (5th Cir. 2017). Here,
Jordan’s opening brief asserted generally that the warrant lacked “substantial
content,” consisted primarily of “conclusory allegations of ‘harassment’ that
resulted in ‘emotional distress,’” and did not support the reasonable conclusion
that “any of the four elements of simple stalking were met.” (Alteration
omitted). However, it did not home in on the facts alleged in the affidavit and
did not demonstrate that no reasonable officer could find from them probable
cause that Jordan had committed the crime of stalking. Instead, Jordan’s
argument focused on his actual conduct: he argued that “the letter[s] he sent
contained no statements that could be construed as threats” and that they “did
not contain any threatening language or factual misstatements that could have
reasonably led to anybody suffering emotional distress.” 1 Jordan’s actual
conduct is not determinative here; in a Malley claim, what matters is what the
affidavit alleged. See 475 U.S. at 345. Because Jordan did not meaningfully
argue that the warrant affidavit failed to allege facts to support the final
element of the stalking statute until his reply brief, Brumfield was denied the
opportunity to respond to such an argument. As a result, this court may not
properly consider it. See JTB Tools & Oilfield Servs., L.L.C. v. United States,
831 F.3d 597, 601 (5th Cir. 2016) (claim made in “repeat conclusory assertions”
without “any supporting argument” is insufficiently briefed); Knighten v.
1 Were Jordan proceeding pro se, we might be able to construe these assertions as
sufficient to raise an issue regarding the fourth element. See Johnson v. Quarterman, 479
F.3d 358, 359 (5th Cir. 2007) (“Briefs by pro se litigants are afforded liberal construction.”).
However, because Jordan is represented by counsel on appeal, his brief is not entitled to
liberal construction. See Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
19
Case: 16-30734 Document: 00513968713 Page: 20 Date Filed: 04/26/2017
No. 16-30734
C.I.R., 702 F.2d 59, 60 (5th Cir. 1983) (generally, “[i]t is impermissible to
mention an issue for the first time in a reply brief, because the appellee then
has no opportunity to respond”). For these reasons, I concur in the judgment.
20