Courtney Morgan v. Scott Freshour

Case: 18-40491 Document: 00515520014 Page: 1 Date Filed: 08/07/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 7, 2020

No. 18-40491

Lyle W. Cayce

Clerk

COURTNEY MORGAN,

Plaintiff – Appellee,

v.

MARY CHAPMAN; JOHN KOPACZ,

Defendants – Appellants.

Appeal from the United States District Court

for the Southern District of Texas

Before ELROD, WILLETT, and DUNCAN, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This is another in a long line of cases involving the Texas Medical Board

serving instanter subpoenas on medical clinics. We have said that those

subpoenas—which do not allow for court review and demand immediate

compliance—are unconstitutional.

In this case, a team of law enforcement officers and Medical Board

investigators locked down a clinic, rifled through private patient records, and

seized confidential files. Courtney Morgan alleges that Mary Chapman, a

Medical Board investigator, used those illegally-obtained files to fabricate

evidence and get him indicted on trumped-up charges of running a pill mill. A

Case: 18-40491 Document: 00515520014 Page: 2 Date Filed: 08/07/2020

No. 18-40491

state district court largely agreed with that version of the facts, suppressing

the illegally obtained evidence, and dismissing the indictment against Morgan.

Now, Morgan brings a civil suit against two government agents for violating

his constitutional rights.

In this case, Morgan contends that Chapman and John Kopacz used

instanter subpoenas to illegally search his clinic (which did not dispense pain

medication), resulting in the illegal seizure of property and patient records.

This is not the first time this court has addressed these subpoenas. In Zadeh

v. Robinson, the Board executed an unconstitutional instanter subpoena on an

internal medicine doctor. 928 F.3d 457, 462 (5th Cir. 2019), cert denied 2020

WL 3146691 (June 15, 2020). And in Cotropia v. Chapman, another doctor

alleged that Chapman showed up with an unconstitutional instanter subpoena

and, over the receptionist’s objection, removed and copied sensitive documents

from the office’s front desk. 721 Fed. App’x 354, 356 (5th Cir. 2018).

The district court denied qualified immunity to both defendants and

rejected Chapman’s assertion of absolute prosecutorial immunity. It held that

Morgan stated a claim for the purported constitutional tort of malicious

prosecution against Kopacz and Chapman, and stated a claim for

“constitutional” abuse of process against Chapman. We reverse because

malicious prosecution and abuse of process are not viable theories of

constitutional injury. But we remand for the district court to decide whether

Morgan has waived his Fourth Amendment claims and whether he should be

allowed to amend his complaint a third time to add a due process claim.

2

Case: 18-40491 Document: 00515520014 Page: 3 Date Filed: 08/07/2020

No. 18-40491

I.

Dr. Courtney Morgan is a licensed physician in Victoria, TX.1 Since

2007, he has owned and operated two medical clinics: Hop Medical Services

and Drive Thru Doc. Hop Medical focuses on general family medicine, while

Drive Thru focuses only on simple medical issues that can be treated in thirty

days. Such ailments include rashes, toothaches, sexually transmitted

diseases, and strep throat. Drive Thru provides these services at a discounted

rate in order to help uninsured patients.

Morgan states that he has never stored, retained, or dispensed any

controlled substance at either clinic. But on July 18, 2013, law enforcement

descended to search for evidence of illegal controlled-substance related

activity. Mary Chapman, an investigator for the Texas Medical Board, and

John Kopacz, an agent with the Texas Department of Public Safety, along with

two additional Medical Board agents, two Drug Enforcement Administration

agents, and a local Victoria, TX, police officer, served administrative instanter

subpoenas on Morgan, searched his clinics, and seized medical files. Chapman

and Kopacz confined Morgan in an examination room, prevented his employees

from communicating with each other, and collected all of their cell phones.

Chapman and Kopacz seized confidential documents, including all patient

medical records for March 2013, as well as additional documents that were not

listed in the subpoenas.

Things would get worse for Morgan. As he tells it, Chapman fabricated

evidence to encourage a baseless criminal prosecution. In Texas, a clinic that

prescribes four specific types of controlled substances to greater than half of its

patients on a monthly basis must obtain a pain management clinic

All facts are drawn from Morgan’s Second Amended Complaint, which, at the motion

1

to dismiss stage, we take as true. See Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 311 (5th

Cir. 2019).

3

Case: 18-40491 Document: 00515520014 Page: 4 Date Filed: 08/07/2020

No. 18-40491

certification. Chapman made a report that included all patients who received

prescriptions for any controlled substance, knowing that this was deceptive.

Based on that fabricated report, Kopacz suggested to the district attorney that

Morgan be charged with operating an unlicensed pain management clinic. A

grand jury indicted Morgan based solely on the fabricated report, and he was

arrested for the third-degree felony of non-certification of a pain management

clinic.

A.

The state court made quick work of the prosecution. On September 3,

2015, Chapman testified on Morgan’s motion to suppress. This testimony,

Morgan says, revealed startling new information: (1) Chapman and Kopacz

coordinated extensively with each other prior to serving the TMB

administrative instanter subpoenas; (2) Chapman’s fabricated report was the

sole evidence used to support Morgan’s indictment; and (3) Chapman and

Kopacz worked together to encourage the prosecution that rested on the

fabricated report.

The state district court held a suppression hearing, where it heard

testimony from Chapman and Kopacz. The court found that the Medical Board

and DPS communicated for the purpose of charging Morgan with a crime, that

there was “an unusual show of force by law enforcement to merely serve

subpoena(s),” and that Chapman’s evasive testimony was “less than credible.”

The court granted Morgan’s motion to suppress, holding that Chapman and

Kopacz conducted a warrantless search and seizure at Morgan’s clinics.

The court applied New York v. Burger, which held that an administrative

subpoena is only reasonable if there is a substantial government interest

implicating the regulatory scheme, the search is necessary to further that

scheme, and the subpoena provides an adequate substitute for a warrant. 482

U.S. 691, 702–03 (1987). There was a substantial interest in the regulatory

4

Case: 18-40491 Document: 00515520014 Page: 5 Date Filed: 08/07/2020

No. 18-40491

scheme, the court concluded, but the search violated the Fourth Amendment

because “the intent behind the search . . . was to pursue criminal charges.” The

subpoena did not provide an adequate substitute for a warrant, the court

explained, because it did not provide Morgan an opportunity for pre-

enforcement judicial review, and that neither the consent nor exigent

circumstances exceptions to the warrant requirement applied. The court

granted the motion to suppress and dismissed the indictment on January 20,

2016.

On July 11, 2016, Morgan learned that Chapman deliberately inflated

the numbers in her report in order to encourage his prosecution. He also

asserts that Chapman deliberately excluded evidence that would show his

exemption from pain-management certification requirements.

B.

Morgan filed this lawsuit on January 20, 2017 in the Southern District

of Texas. His first complaint alleged claims under 42 U.S.C. § 1983—for

malicious prosecution and violations of the Fourth Amendment—as well as a

state-law malicious-prosecution claim and violation of Article I § 9 of the Texas

Constitution.

After the defendants filed motions to dismiss, Morgan amended his

complaint. This new complaint dropped most of his claims, leaving only

individual-capacity claims against Kopacz and Chapman for malicious

prosecution under 42 U.S.C. § 1983. The First Amended Complaint added a

Fourth Amendment claim. Chapman and Kopacz again responded with

motions to dismiss. At a subsequent hearing, the district court granted

Morgan leave to file a second amended complaint, mooting the previous filings.

The Second Amended Complaint is before us today. It alleges that

Chapman “compiled an investigative report from the seized medical records

obtained during the warrantless search,” which used “deliberately inaccurate

5

Case: 18-40491 Document: 00515520014 Page: 6 Date Filed: 08/07/2020

No. 18-40491

calculations [to] falsely inflate[] the percentage of prescriptions issued by

Morgan”; that Kopacz “received the entire investigative file from the [Texas

Medical Board],” and that the report “was the sole evidence relied upon in

Kopacz’s decision to cause the criminal prosecution of Morgan through the

Victoria County District Attorney’s Office.”

The Second Amended Complaint asserts three claims, all brought under

42 U.S.C. § 1983: Count I, for malicious prosecution against Kopacz; Count II

for malicious prosecution against Chapman; and Count III, for abuse of process

against Chapman.

Kopacz and Chapman each moved to dismiss. Kopacz’s motion raised

the defense of qualified immunity and argued that there is no constitutional

right to be free from malicious prosecution. It also noted that any freestanding

Fourth Amendment claim alleged in the complaint would be time-barred.

Chapman’s motion to dismiss asserted defenses of absolute immunity,

qualified immunity, and failure to state a claim. The motion also asserted that

the abuse-of-process claim was time-barred.

The district court denied both motions. The court briefly summarized

the alleged facts, described the claims and defenses, and stated the Rule

12(b)(6) standard. Then, the district court copied the state court’s suppression

order verbatim, entailing four-and-a-half of the order’s nine pages. The district

court concluded that defendants were not entitled to qualified immunity

because the defendants’ “conduct presumably violated clearly established state

and federal law.”

II.

Because the district court’s denial of the motion to dismiss included a

rejection of qualified immunity, it is immediately appealable. Backe v.

LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). We therefore have jurisdiction

under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We

6

Case: 18-40491 Document: 00515520014 Page: 7 Date Filed: 08/07/2020

No. 18-40491

review the denial of a motion to dismiss de novo. Lincoln v. Barnes, 855 F.3d

297, 301 (5th Cir. 2017).

III.

We begin with Chapman’s assertion of absolute prosecutorial immunity.

“A prosecutor is absolutely immune when she acts in her role as an

advocate for the state by initiating and pursuing prosecution.” Beck v. Tex.

State Bd. of Dental Examiners, 204 F.3d 629, 637 (5th Cir. 2000) (citing Burns

v. Reed, 500 U.S. 478, 491 (1991)). Absolute immunity shields prosecutors even

when they initiate prosecution maliciously, wantonly, or negligently. Rykers

v. Alford, 832 F.2d 895, 897 (5th Cir. 1987).

Chapman, of course, was not a prosecutor—she was a Medical Board

investigator. But we approach absolute immunity functionally, looking to the

nature of the acts and not the title of the actor. See Beck, 204 F.3d at 634. The

question is whether the person was performing an investigative function.

Singleton v. Cannizzaro, 956 F.3d 773, 780 (5th Cir. 2020). Where a person

acts as a detective, “searching for the clues and corroboration that might give

him probable cause to recommend that a suspect be arrested,” he is not entitled

to prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

But where a person acts as an advocate, “evaluating evidence and interviewing

witnesses as he prepares for trial,” then the immunity does attach. See id.

Actions performed before probable cause has been established are

typically investigative; those after, prosecutorial. See Cousin v. Small, 325

F.3d 627, 633 (5th Cir. 2003). This is because “[a] prosecutor neither is, nor

should consider himself to be, an advocate before he has probable cause to have

anyone arrested.” Buckley, 509 U.S. at 274; see also id. at 274 n.5 (“Of course,

a determination of probable cause does not guarantee a prosecutor absolute

immunity from liability for all actions taken afterwards.”). .

7

Case: 18-40491 Document: 00515520014 Page: 8 Date Filed: 08/07/2020

No. 18-40491

Here, Chapman acted as an investigator both when she searched

Morgan’s office and when she allegedly fabricated a report based on that

search. Searching a crime scene for evidence of wrongdoing is perhaps the

quintessential investigative function. See id. (observing that a prosecutor is

not entitled to immunity when he “plans and executes a raid on a suspected

weapons cache”). Thus, Chapman is not entitled to absolute immunity for the

search of Morgan’s clinic and the seizures of his records. Nor is she entitled to

absolute immunity for allegedly compiling an inaccurate report by knowingly

misrepresenting the proportion of Morgan’s patients who received designated

prescriptions. That report was the sole piece of evidence that established

probable cause for Morgan’s indictment. Absolute immunity does not apply

where an “official’s function was to obtain evidence prior to indictment.” See

Hoog-Watson v. Guadalupe County, 591 F.3d 431, 438 (5th Cir. 2009) (quoting

Burge v. Par. of St. Tammany, 187 F.3d 452, 478 (5th Cir. 1999) (alteration

omitted)).

Because Chapman “fulfilled the fact-finding role generally filled by law

enforcement,” she is entitled only to “the level of immunity available to law

enforcement—qualified immunity.” Wooten v. Roach, 964 F.3d 395, 408 (5th

Cir. 2020).

IV.

We turn next to the qualified immunity inquiry. Morgan’s Second

Amended Complaint alleges counts of malicious prosecution against

defendants Kopacz and Chapman, purportedly cognizable under 42 U.S.C.

§ 1983, and a claim of abuse of process against Chapman that he also brings

under 42 U.S.C. § 1983. We agree with defendants that malicious prosecution

and abuse of process are torts, not constitutional violations. The facts

underlying these tort allegations may constitute unconstitutional searches,

seizures, or violations of due process. But that does not convert the common

8

Case: 18-40491 Document: 00515520014 Page: 9 Date Filed: 08/07/2020

No. 18-40491

law tort into a violation of the Constitution. Accordingly, we hold that

defendants are entitled to qualified immunity against those claims.

The Fourth Amendment of the United States Constitution promises that

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated[.]”

U.S. Const. amend. IV. The Fourteenth Amendment ensures that the same

protection runs against state officials. Dunaway v. New York, 442 U.S. 200,

207 (1979).

Morgan brings his claims under 42 U.S.C. § 1983, which provides a cause

of action against persons who, under color of state law, deprive him “of any

rights, privileges, or immunities secured by the Constitution.” To defeat the

defense of qualified immunity at the motion to dismiss stage, Morgan must

plausibly allege a violation of a constitutional right that was clearly

established at the time of the purported violation. Longoria Next Friend of

M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 264 (5th Cir. 2019).

A.

We begin with Morgan’s claims for “malicious prosecution . . . cognizable

under 42 U.S.C. § 1983” against Chapman and Kopacz. Under the common

law of Texas, malicious prosecution is “a cause of action for those subjected

unjustifiably to criminal proceedings.” Kroger Texas Ltd. v. Suberu, 216

S.W.3d 788, 792 (Tex. 2006). To state a claim for that state tort, a plaintiff

must allege

(1) a criminal prosecution was commenced against [him]; (2) [the

defendant] initiated or procured that prosecution; (3) the prosecution

terminated in [the plaintiff’s] favor; (4) [he] was innocent of the charges;

(5) [the defendant] lacked probable cause to initiate the prosecution; (6)

[the defendant] acted with malice; and (7) [the plaintiff] suffered

damages.

9

Case: 18-40491 Document: 00515520014 Page: 10 Date Filed: 08/07/2020

No. 18-40491

Id. at 792 n.3. This circuit used to recognize an analogous constitutional right

to be free from malicious prosecution. See Gordy v. Burns, 294 F.3d 722 (5th

Cir. 2002). Today, it does not.2

In Castellano v. Fragozo, an en banc majority of this court extinguished

the constitutional malicious-prosecution theory. 352 F.3d 939, 954 (5th Cir.

2003) (en banc). Castellano explained that claims under § 1983 are only “for

violation[s] of rights locatable in constitutional text.” Id. at 953–54. This

makes sense: the people have a constitutional right to be free from

unreasonable searches and unreasonable seizures. In so far as the defendant’s

bad actions (that happen to correspond to the tort of malicious prosecution)

result in an unreasonable search or seizure, those claims may be asserted

under § 1983 as violations of the Fourth Amendment. But that makes them

Fourth Amendment claims cognizable under § 1983, not malicious prosecution

claims.

There is a constitutional right to be free of unreasonable searches and

seizures. There is no constitutional right to be free from malicious prosecution.

Therefore, qualified immunity bars Morgan’s § 1983 malicious prosecution

claims against Chapman and Kopacz.

B.

We turn to Morgan’s § 1983 claim for abuse of process against Chapman.

The essential elements of the state law tort of abuse of process are “first, an

ulterior purpose, and second, a wilful act in the use of the process not proper

in the regular conduct of the proceeding.” Brown v. Edwards, 721 F.2d 1442,

1455 (5th Cir. 1984) (emphasis omitted) (quoting Prosser, The Law of Torts

841 (4th ed. 1971)); cf. Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex. App.—

2 When this court did recognize such a claim, the rule was “that the elements of the

state-law tort of malicious prosecution and the elements of the constitutional tort of ‘Fourth

Amendment malicious prosecution’ are coextensive.” See Gordy, 294 F.3d at 725.

10

Case: 18-40491 Document: 00515520014 Page: 11 Date Filed: 08/07/2020

No. 18-40491

Houston [14th Dist.] 2001, no pet.) (identifying improper use of process,

ulterior motive, and damage to plaintiff as necessary elements).

This court has never identified the elements of the constitutional tort of

abuse of process.3 It is doubtful that such a constitutional tort has ever existed

in this circuit. Forty years ago, we suggested that “misuse of legal procedure

may be so egregious as to constitute a violation of Section 1983 . . . if the tort-

feasor, under color of state law, subjects the tort-victim to a deprivation of

Constitutional dimension.” Beker Phosphate Corp. v. Muirhead, 581 F.2d

1187, 1189 (5th Cir. 1978); see also id. at 1188 n.1 (defining “[m]isuse of legal

procedure” as “a general term describing at least three separate but related

common law torts which protect the interest in freedom from unjustified

litigation: (1) malicious prosecution; (2) wrongful civil proceedings; (3) abuse of

process” (internal quotation omitted)). But Beker also emphasized that

“conduct which merely engenders common law tort liability, without infringing

on Constitutionally protected interests, is not a sufficient basis to support a

cause of action under Section 1983.” Id. (emphasis added). In other words, the

conduct that can state a claim for the tort of abuse of process may also state a

claim under § 1983, if that conduct infringes a constitutional right.

In the forty years since Beker, this court has never identified a

“constitutional” abuse of process, and we have questioned the viability of the

abuse-of-process-as-constitutional-tort theory. Cf. Brummett v. Camble, 946

F.2d 1178, 1181 n.2 (5th Cir. 1991) (“Not long ago, however, our court had held

that torts of abuse of process . . . were not encompassed within § 1983.”).

3 The court looked to state tort law as an analogy, concluding that if the constitutional

tort of abuse of process exists, it must consist of the state law tort plus something more, which

this court suggested would be an act that resulted in “a deprivation of Constitutional

dimension.” See Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir. 1978).

11

Case: 18-40491 Document: 00515520014 Page: 12 Date Filed: 08/07/2020

No. 18-40491

Morgan suggests that Brown established the constitutional right to be

free from abuse of process. It did not. Brown involved a man who had been

arrested by a police officer who, under state law, received ten dollars for each

charge that resulted in conviction. Id. at 1444. The plaintiff “analogize[d] his

claim to one based on abuse of process.” Id. at 1450. The court rejected the

theory that abuse of process by a government official is necessarily a denial of

due process. See id. at 1455 (distinguishing Jennings v. Shuman, 567 F.2d

1213, 1220 (3d Cir.1977)).4 Instead, the court’s reasoning aligned with the rule

of Beker: if the constitutional tort of abuse of process exists, it must involve the

state tort plus a deprivation of a constitutionally protected interest. Cf. Beker,

581 F.2d at 1189. Thus, a constitutional violation is still the sine qua non of

the abuse of process theory.

The conduct in Brown did not even satisfy the state tort of abuse of

process, much less “infring[e] on a constitutionally protected interest.” Cf.

Beker, 581 F.2d at 1189.5 Brown did not create a constitutional right to be free

from abuse of process. And that is why the only time we have cited Brown in

a putative constitutional-abuse-of-process case was to dispel the idea that it

created such a right. See Whatley v. Philo, 817 F.2d 19, 22 (5th Cir. 1987)

(citing Brown, 721 F.2d at 1454).

4 Some circuits recognize abuse of process as a violation of procedural due process.

See, e.g., Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); Jennings, 567 F.2d at 1220. Other

circuits are more circumspect. See, e.g., Hart v. Mannina, 798 F.3d 578, 595 (7th Cir. 2015)

(“[A]ssuming for purposes of argument that a claim for abuse of process might be cognizable

under § 1983” as a violation of the Fourth or Fourteenth Amendment.); Fagnan v. City of

Lino Lakes, 745 F.3d 318, 324 n.5 (8th Cir. 2014) (“To the extent that Fagnan preserved for

appeal his abuse of process claim, we decline to decide whether defendants may be liable for

abuse of process pursuant to 42 U.S.C. § 1983.”).

5 Morgan maintains that Brown “outlined the elements for a federal claim of abuse of

process.” Not so. Brown provided the elements for common law abuse of process, which it

analogized to the plaintiff’s facts. See id. at 1455 (quoting Prosser, The Law of Torts 838–41

(4th ed. 1971)).

12

Case: 18-40491 Document: 00515520014 Page: 13 Date Filed: 08/07/2020

No. 18-40491

Our en banc decision in Castellano sheds light on the best way to

understand Beker and Brown. Castellano clarifies that the same conduct may

constitute both a state tort (which is not cognizable under § 1983) and a

constitutional injury (which is). Section 1983 claims “are for violation[s] of

rights locatable in constitutional text.” 352 F.3d. at 953–54. Thus, in

Castellano the conduct did not state a claim for malicious prosecution (because

such a claim was not locatable in the constitutional text), see id., but that same

conduct did state a claim for a violation of the right to due process and the

right to be free from unreasonable seizure, see id. at 955. Accordingly, it

reversed the district court judgment and remanded for a new trial.

We recognize that previous decisions of this court may have left open the

possibility that the freedom-from-abuse-of-process right lay hidden in the

constitutional ether. Cf. Whatley, 817 F.2d at 22 (“At most, Beker supports the

proposition that, to be actionable under § 1983, the misuse of legal process

must be ‘egregious.’” (quoting Beker, 581 F.2d at 1189)). We close the door on

that possibility. Putting together Beker, Brown, and Castellano, we observe

that facts that constitute the state tort of abuse of process can also constitute

an unreasonable search, unreasonable seizure, or violation of another right

“locatable in constitutional text.” Id. at 954. Such claims, rooted in the

violation of constitutional rights, are actionable under § 1983. But those claims

“are not claims for [abuse of process] and labeling them as such only invites

confusion.” See id.

Because there is no constitutional right to be free from abuse of process,

the district court erred by failing to grant defendants qualified immunity on

that claim.

V.

To save his complaint from dismissal, Morgan argues that his factual

allegations state a claim for something, even if not malicious prosecution or

13

Case: 18-40491 Document: 00515520014 Page: 14 Date Filed: 08/07/2020

No. 18-40491

abuse of process. In his words, “[w]hether this claim is called malicious

prosecution or a violation of the Fourth Amendment or a violation of the

Fourteenth Amendment . . . does not matter.” But it does matter: while

Morgan was silent about the possibility of a due process claim in the district

court, defendants contend that he affirmatively waived a possible freestanding

Fourth Amendment claim.

Morgan is correct that under our system of notice pleading, a complaint

need not specify legal theories. See McManus v. Fleetwood Enters., 320 F.3d

545, 551 (5th Cir. 2003). But that is not the only principle at play here. A

defendant is also entitled to know the claims against him so that he can

prepare a response. Putting those principles together, we consider whether to

remand for the district court to determine whether Morgan may amend his

complaint.

A district court “should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). But leave may be denied when it would

cause undue delay, be the result of bad faith, represent the repeated failure to

cure previous amendments, create undue prejudice, or be futile. Smith v. EMC

Corp., 393 F.3d 590, 595 (5th Cir. 2004). Accordingly, we consider whether it

would be futile for Morgan to add a due process, unreasonable search, or

unreasonable seizure claim.6 If adding these claims would be futile on the

merits, we will not remand for efficiency’s sake. After all, we are in as good of

a position as the district court to consider this legal question; if these added-

6 We do not discuss the other factors, which the district court is better positioned to

address. Cf. Rutledge v. United States, 161 F.3d 7 (5th Cir. 1998 (unpublished table op.)

(declining to remand because “leave to amend would prove futile”). Of course, allowing a

plaintiff the opportunity to seek leave to amend on remand is only proper in appropriate

circumstances. See, e.g., McLin v. Ard, 611 F. App’x 806, 810 n.4 (5th Cir. 2015) (concluding

that plaintiff should be given “opportunity to cure his complaint on remand” because district

court mistakenly “found the complaint sufficient on its face to state a plausible claim for

relief”).

14

Case: 18-40491 Document: 00515520014 Page: 15 Date Filed: 08/07/2020

No. 18-40491

by-amendment claims would not succeed on the merits, why should we

remand? But, if these claims might have merit if added-on-amendment, we

will remand to the district court for a full determination of whether leave to

amend is proper.

A.

A freestanding Fourth Amendment unreasonable search claim under

these facts would look familiar. This court has recently decided a number of

cases involving the Texas Medical Board’s unconstitutional use of instanter

subpoenas. In the unpublished Cotropia v. Chapman, we denied qualified

immunity where Mary Chapman (the same investigator named in this case)

searched and seized patient medical records over a physician’s objection. See

721 Fed. App’x 354, 357, 361 (5th Cir. 2018). We held that the plaintiff

plausibly alleged that Chapman “violated the clearly established right to an

opportunity to obtain precompliance review of an administrative subpoena

before a neutral decisionmaker.” Id. at 357.

In a more recent published decision, we held that a TMB investigator

violated a physician’s Fourth Amendment rights by executing an instanter

subpoena without precompliance review, even though we concluded that the

investigator was entitled to qualified immunity. See Zadeh v. Robinson, 928

F.3d 457, 464 (5th Cir. 2019). The Zadeh defendants argued that the instanter

subpoenas complied with the Fourth Amendment because they fell into the

“closely regulated industry” exception to the general rule that administrative

subpoenas require precompliance review. Id. at 464. We held that the medical

industry as a whole is not a closely regulated industry. Id. at 466. But we

assumed without deciding that pain management clinics were closely

regulated and that the plaintiff was operating such a clinic. Id. We then held

that the statutory scheme of the TMB’s inspection authority lacked sufficient

15

Case: 18-40491 Document: 00515520014 Page: 16 Date Filed: 08/07/2020

No. 18-40491

limits on the discretion of the Board and was therefore not a proper substitute

for a warrant. Id. at 468.

The Zadeh search violated the Fourth Amendment even if pain

management clinics were a closely regulated industry, we explained.

Nonetheless, we concluded that the law was not clearly established at the time,

because “the defendants reasonably could have believed that the

administrative scheme here provided a constitutionally adequate substitute

for a warrant.” Id. at 470.

The Zadeh court also concluded, under an alternative theory, that the

searches at issue were not pretextual. Id. at 472. A search is not really

administrative if it is used solely to find evidence of criminal wrongdoing. See

Burger, 482 U.S. at 724 (“In the law of administrative searches, one principle

emerges with unusual clarity and unanimous acceptance: the government may

not use an administrative inspection scheme to search for criminal

violations.”).

Neither the closely regulated industry holding nor the pretextual search

analysis would stop Morgan’s claims. In Zadeh, the defendants received

qualified immunity because the law of instanter searches of closely regulated

pain management clinics was unclear. 928 F.3d at 466. Here, accepting the

plaintiff’s allegations as true, it is uncontroverted that Morgan was not

operating a pain management clinic. Indeed, he alleges that he “has never

obtained, stored, maintained or dispensed any controlled substances of any

kind from either medical practice.” Because Morgan was not operating a pain

management clinic, the qualified immunity available to the defendants in

Zadeh would be inapplicable here.

The pretext analysis in this case also departs from Zadeh. In Zadeh, we

concluded that the searches were not pretext for criminal investigation because

there was no evidence that the “investigation resulted in a criminal

16

Case: 18-40491 Document: 00515520014 Page: 17 Date Filed: 08/07/2020

No. 18-40491

prosecution” and because the TMB took “subsequent administrative action

against” the physician. Zadeh, 928 F.3d at 471–72. Therefore, we reasoned,

the search was not pretextual because it “was not performed ‘solely to uncover

evidence of criminality.’” Id. at 472 (quoting Burger, 482 U.S. at 698). Here,

neither of those two facts are present. The search did result in a criminal

prosecution, and TMB did not take any subsequent administrative action

against Morgan.

Based on this case law, we cannot say it would be futile for Morgan to

add a Fourth Amendment claim for an unreasonable search.

B.

A Fourth Amendment unreasonable seizure claim arising from Morgan’s

arrest on false charges would also be familiar. We recently concluded that an

unlawful seizure claim was cognizable and qualified immunity did not apply

where a plaintiff “was wrongfully arrested due to the knowing or reckless

misstatements and omissions” in a law enforcement officer’s affidavits. See

Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018), cert denied sub nom.

Johnson v. Winfrey, 139 S. Ct. 1549 (2019). In that case, the plaintiff framed

his claim as a “Fourth Amendment federal malicious-prosecution claim.” Id.

at 491. Relying on Castellano, we rejected that theory. See id. (citing

Castellano, 352 F.3d at 945, 953). Nonetheless, we explained that where facts

that follow the state tort of malicious prosecution also constitute an illegal

seizure, a “claim fits the Fourth Amendment, and the Fourth Amendment fits

the plaintiff’s claim, as hand in glove.” Id. at 492 (quoting Manuel v. City of

Joliet, 137 S. Ct. 911, 917 (2017)) (alteration omitted).

Winfrey continued to analyze the statute of limitations issue, which is

outside of the scope of this appeal. The court explained that the accrual date

of a § 1983 action tracks the state law of torts. Winfrey, 901 F.3d at 492. The

issue was whether the plaintiff’s claim was more analogous to the tort of false

17

Case: 18-40491 Document: 00515520014 Page: 18 Date Filed: 08/07/2020

No. 18-40491

imprisonment (which accrues at the time the plaintiff is detained) or to

malicious prosecution (which accrues when the prosecution ends). Id. We

concluded that the claim was closer to malicious prosecution—“an unlawful

arrest pursuant to a warrant[,] instead of a detention with no legal process.”

Id. at 493. We recognized this unconstitutional seizure claim even though we

rejected the plaintiff’s “constitutional” malicious-prosecution theory.

Accordingly, a Fourth Amendment unreasonable seizure claim would not

be futile.

C.

We also must address whether it would be futile to remand to allow the

district court to consider a due process claim. This court recently announced

that there is a “due process right not to have police deliberately fabricate

evidence and use it to frame and bring false charges against a person.” Cole v.

Carson, 802 F.3d 752, 771 (5th Cir. 2015) (“Cole I”), cert. granted, judgment

vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (2016) and opinion reinstated

in part, 935 F.3d 444 (5th Cir. 2018) (en banc). And, although Cole had a

peripatetic procedural history, that holding is binding Fifth Circuit precedent

today.7

Given the on-point Cole holding, the due process claim would similarly

not represent a futile amendment. Remand to allow the district court to

consider that claim would not be futile.

VI.

7 Cole I was vacated by the Supreme Court in Hunter v. Cole, 137 S. Ct. 497 (2016).

On remand from the Supreme Court, the panel in Cole II reinstated the portion of the opinion

including its due process fabricated evidence theory. See Cole v. Carson, 905 F.3d 334, 347

(5th Cir. 2018) (“Cole II”), reh’g en banc granted, 915 F.3d 378 (5th Cir. 2019), on reh’g en

banc, 935 F.3d 444 (5th Cir. 2019), as revised (Aug. 21, 2019). Cole II was vacated when this

court granted rehearing en banc, 915 F.3d 378 (5th Cir. 2019), but the en banc court held “as

in Cole I with respect to the Coles’ three fabrication-of-evidence claims.”

18

Case: 18-40491 Document: 00515520014 Page: 19 Date Filed: 08/07/2020

No. 18-40491

It would not be futile on the merits for Morgan to pursue an unreasonable

search, unreasonable seizure, or due process claim. But the decision as to

whether Morgan should be allowed to amend is not ours to make. It is unclear

what legal theories the plaintiff presented in the district court. And his claims

seem to have transformed on appeal. We remand for the district court to

consider amendment and, if necessary, issues of waiver and forfeiture.8

****

To sum up, Chapman is not entitled to absolute immunity. Under this

circuit’s precedents, there is no constitutional right to be free from abuse of

process or malicious prosecution. As to search and seizure and due process, we

remand to the district court to determine whether Morgan may amend his

complaint a third time. The judgment of the district court is VACATED and

the case is REMANDED for further proceedings consistent with this opinion.

8 In the district court, Morgan did not label his claim a due process claim. The three

references to the Fourteenth Amendment in the Second Amended Complaint are in

conjunction with the Fourth Amendment, clearly contemplating an incorporated reference to

the latter. A complaint must “give the defendant fair notice of what the [plaintiff’s] claim is.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Defendants had no notice of a due process claim. But the district court is in the

best position to determine whether Morgan should be allowed to amend at this juncture.

Likewise, defendants contend that Morgan waived any Fourth Amendment claim in his

district court pleadings. Morgan maintains that defendants mischaracterized his claims. We

leave that question for the district court.

19