Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND-ODESSA DIVISION

JARED LEE, DANA ELLIS, §

MATTHEW COUNTS, §
GREGORY MCCLENDON, and §
BARRY RUSSELL, §
§ Civil Action No. 7:22-cv-185
Plaintiffs, §
v. §
§ JURY TRIAL DEMANDED
CITY OF MIDLAND, JENNIE §
ALONZO, ROSEMARY SHARP, and §
CAMILO FONSECA §
§
Defendants. §

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

PLAINTIFFS’ FIRST AMENDED COMPLAINT1

Plaintiffs Jared Lee, Dana Ellis, Matthew Counts, Gregory McClendon, and Barry Russell

(collectively, the “Plaintiffs,” “Midland Christian Five,” or “the Five”), hereby respond to

Defendants City of Midland, Jennie Alonzo, Rosemary Sharp, and Camilo Fonseca’s (collectively,

“Defendants”) Motion to Dismiss Plaintiffs’ First Amended Complaint (the “Complaint”).2

 
1
This case was filed in the Western District of Texas, where the page limitation would be 20 pages. See W.D. Tex.
Local Rule CV-7(c)(2), available at, https://www.txwd.uscourts.gov/court-information/lcr-civil-rules/. The
Defendants filed a 25 page motion, apparently following the Northern District of Texas’s Rules, so the Plaintiffs have
similarly limited their response to 25 pages. See N.D. Tex. Local Rule 7.2(c).
2
In this response, the “Complaint” refers to the Plaintiffs’ First Amended Complaint [Doc. No. 27].
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 2 of 31

TABLE OF CONTENTS

INTRODUCTION & SUMMARY OF RESPONSE .................................................................... 1

STANDARD OF REVIEW ........................................................................................................... 2

ARGUMENTS AND AUTHORITIES .......................................................................................... 3

I. Plaintiffs Have Stated a Plausible Fourteenth Amendment Claim. ....................................3

II. Plaintiffs Have Stated a Plausible Fourth Amendment Claim. .......................................... 4

A. The Defendants’ after-the-fact contention that they had probable cause

to arrest the Midland Christian Five for failing to report an offense that
did not occur cannot create the probable cause that the falsified
affidavits otherwise lack. ............................................................................................. 5

1. In Arizmendi v. Gabbert, the Fifth Circuit expressly rejected the

argument that an alternative basis for probable cause could spare an
officer from liability for lying to obtain an arrest warrant in violation
of Franks. ............................................................................................................... 5

2. The Defendants lacked probable cause that the Plaintiffs violated the
mandatory reporting statute based upon “indecency [with] a child”
because this offense did not occur—and the argument that it did (or
that anyone ever had a basis to suspect that it did) is completely
contrary to the allegations in the Complaint. ......................................................... 6

a. No evidence supported the Plaintiffs having a reasonable belief

that any touching involved in the incident was “inten[ded] to
arouse or gratify . . . sexual desire.” ................................................................. 7

b. No evidence supported the Plaintiffs having a reasonable belief

that any “sexual contact” for purposes of the indecency statute
occurred. ........................................................................................................... 8

B. The Complaint plausibly pleads both elements of a Franks violation. .........................8

1. The Complaint specifically alleges numerous false statements and

material omissions in the warrant affidavits. ..........................................................9

2. A “corrected” warrant affidavit without the false statements and

omissions would not have supported probable cause of failing to
report aggravated sexual assault. ..........................................................................10
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 3 of 31

3. Laviage is inapposite. ............................................................................................13

III. Plaintiffs plausibly pleaded both lack of probable cause and malice in
support of their malicious prosecution claim. ...................................................................14

IV. The independent intermediary doctrine cannot excuse the constitutional

violations. .......................................................................................................................... 15

V. Plaintiffs Have Stated a Plausible Claim of Supervisory Liability Against

Defendant Sharp. .............................................................................................................. 16

VI. The Plaintiffs have plausibly alleged the City of Midland’s municipal
liability based upon Monell. ..............................................................................................17

A. The Plaintiffs have plausibly alleged that the issuance of the false
warrants in violation of Franks was a deliberate choice giving rise to
municipal liability under deliberate choice and ratification theories. .........................19

1. These facts suffice to impose liability for a deliberate decision under

Pembaur. ...............................................................................................................20

2. These facts also suffice to plausibly allege “single-incident” liability

because the Chief of Police ratified the Defendants’ conduct both
before and after the arrests—including by authorizing additional
retaliatory charges. ................................................................................................20

 The violation here was egregious. ...................................................................21

 The City’s response—a second unlawful arrest and

prosecution—is even more egregious than the lack of action in
Grandstaff. ......................................................................................................22

3. The Plaintiffs also plausibly alleged that the Chief of Police’s

deliberate indifference to conduct by Detective Alonzo caused
the unlawful arrest............................................................................................22

B. Even though the Complaint adequately alleges “single incident”

Monell liability multiple incidents support the Plaintiffs’ municipal
liability claims. ......................................................................................................23

VII. The Individual Defendants Are Not Entitled to Qualified Immunity. ............................. 23

CONCLUSION ............................................................................................................................ 25

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INDEX OF AUTHORITIES

Cases
 
Albright v. Oliver, 510 U.S. 266 (1994) ......................................................................................... 4
 
Arizmendi v. Gabbert, 919 F.3d 891 (5th Cir. 2019) .............................................................. 5, 6, 7
 
Ashcroft v, Iqbal, 556 U.S. 662 (2009) ..................................................................................... 2, 20
 
Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012)........................................................................... 24
 
Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595 (5th Cir. 2001) .............................................. 20
 
City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ................................................................... 18
 
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).................................................................... 18
 
Club Retro, L.L.C. v. Hilton, 568 F.3d 181 (5th Cir. 2009)............................................................ 6
 
Conn v. Gabbert, 526 U.S. 286 (1999) ........................................................................................... 3
 
Davidson v. City of Stafford, Tex., 848 F.3d 384 (5th Cir. 2017) ................................................... 6
 
Deshotel v. CardCash Exch., Inc., 2020 WL 2319300 (W.D. La. Apr. 2, 2020), adopted by, 2020
WL 2308201 (W.D. La. May 8, 2020) ...................................................................................... 24
 
Devenpeck v. Alford, 543 U.S. 146 (2004) ..................................................................................... 6
 
Franks v. Delaware, 438 U.S. 154......................................................................................... passim
 
Gerstein v. Pugh, 420 U.S. 103 (1975) ......................................................................................... 12
 
Graham v. Connor, 490 U.S. 386 (1989) ....................................................................................... 3
 
Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985) .......................................... 21, 22
 
Groden v. City of Dallas, Tex., 826 F.3d 280 (5th Cir. 2016) ...................................................... 18
 
Heien v. North Carolina, 574 U.S. 54 (2014)................................................................................. 6
 
Laviage v. Fite, 47 F.4th 402 (5th Cir. 2022) ......................................................................... 13, 14
 
Lormand v. U.S. Unwired, Inc., 565 F.3d 228 (5th Cir. 2009) ....................................................... 9
 
Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658 (1978) .............. 17, 18, 19, 23
 

iii
 
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 5 of 31

Morgan v. Chapman, 969 F.3d 238, 250 (5th Cir. 2020) ............................................................... 4
 
Pembaur v. City of Cinncinati, 475 U.S. 469 (1986) .............................................................. 18, 20
 
Price v. Roark, 256 F.3d 364 (5th Cir. 2001) ................................................................................. 6
 
Scott v. United States, 436 U.S. 128 (1978).................................................................................... 6
 
Terwilliger v. Reyna, 4 F.4th 270 (5th Cir. 2021).................................................................. passim
 
Tyson v. County of Sabine, 42 F.4th 508 (5th Cir. 2022) ....................................................... 23, 24
 
Webster v. City of Houston, 735 F.2d 838 (5th Cir. 1984). .......................................................... 18
 
Winfrey v. Rogers, 901 F.3d 493 (5th Cir. 2018) .............................................................. 13, 15, 24
Statutes
 
TEX. FAM. CODE ANN. § 261.101.................................................................................................. 13
 
TEX. FAM. CODE ANN. § 261.102............................................................................................ 13, 14
 
TEX. PENAL CODE ANN. § 21.11 ................................................................................................. 7, 8
 
TEX. PENAL CODE ANN. § 21.18 ..................................................................................................... 8
Rules
 
Federal Rule of Civil Procedure 8 .................................................................................................. 2
 
Federal Rule of Civil Procedure 12 ................................................................................................ 2

iv
 
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INTRODUCTION & SUMMARY OF RESPONSE

The Plaintiffs in this case are five career educators, the Midland Christian Five, who the

Defendants falsely arrested. The Midland Christian Five committed no crime. But vindictive

officers, with the support of a vindictive department, arrested the Five for having the temerity to

investigate a hazing incident between two students at their school before reporting it to police.

Contrary to the sworn arrest warrants, none of the Midand Christian Five ever had any

reason to believe that the incident was a sexual assault—a fact that the Defendants knew, but lied

about to obtain the arrest warrants. Indeed, no one was injured in the incident—a fact that the

Defendants knew, but omitted to obtain the arrest warrants. And the “alleged victim” directly

denied to the Midland Christian Five any type of sexual assault, or even reportable abuse—a fact

that the Defendants knew, but omitted to obtain the arrest warrants. And none of the educators

arrested believed, or had any reasonable basis to believe, that the incident was reportable abuse—

a fact that the Defendants knew, but lied about to obtain the arrest warrants.

The Defendants lied to a magistrate to obtain warrants for a perp walk of the Midland

Christian Five. The Defendants then publicized the lies to create the false impression that the

Midland Christian Five had concealed an act of forcible sodomy by one student against another

(an act that the Defendants knew had never occurred and that no one had concealed). All of this

was done—not to prosecute any crime—but to humiliate the Midland Christian Five. The Midland

Christian Five have plausibly alleged facts supporting these acts, and the Defendant officers are

liable for their abuse of power under section 1983.

In addition, the Midland Christian Five sufficiently alleged facts plausibly supporting the

City’s liability based upon the Chief of Police’s direct involvement. Indeed, the Complaint

explicitly alleges that the Chief approved the warrants, knowing that they were false. Given the
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 7 of 31

nature of these arrests, the Chief’s involvement is more than plausible. The arrest involved a

choreographed perp walk of five career Christian educators from a prominent Christian school.

These educators were falsely charged with deliberately concealing one of the most detestable

crimes imaginable—the violent sexual abuse of a child with a baseball bat (an incident that, again,

never occurred). Not only is the Chief’s involvement plausible, the idea that the investigating

officers would embark on this malicious foley without the Chief’s approval—particularly when

the Deputy Chief had indisputably reviewed the evidence—blinks at reality. And, to make matters

worse, the Chief ratified his officers’ misconduct by approving additional, baseless charges against

three of the Plaintiffs in retaliation for this very lawsuit. For all of these reasons, and as discussed

below, the detailed facts alleged in the Complaint amply support Plaintiffs’ section 1983 claims.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 8(a), “a pleading must contain a short and plain

statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S.

662, 677–78 (2009) (internal quotation marks and citation omitted). Rule 8 “does not require

detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 678 (internal quotations omitted). “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.” Id. To be plausible, the claim does not need to

be probable; it instead must simply be “more than a sheer possibility that a defendant has acted

unlawfully.” Id.

The same standards hold true for when a motion to dismiss is based on an assertion of

qualified immunity. Terwilliger v. Reyna, 4 F.4th 270, 279–80 (5th Cir. 2021). “The crucial

question is whether the complaint pleads facts that, if true, would permit the inference that

2
 
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 8 of 31

Defendants are liable under § 1983 and [facts that] would overcome their qualified immunity

defense.” Id. at 280 (internal quotation marks and citation omitted).

ARGUMENTS AND AUTHORITIES

I. Plaintiffs Have Stated a Plausible Fourteenth Amendment Claim.

Defendants cite Conn v. Gabbert, 526 U.S. 286, 293 (1999) and Graham v. Connor, 490

U.S. 386, 395 (1989) arguing that when another provision of the Constitution—namely the Fourth

Amendment—provides an explicit textual source of protection, Plaintiffs cannot also plead a claim

under the Fourteenth Amendment’s substantive due process.3 But these cases, and particularly

Graham, do not mandate cookie-cutter standards for particular claims. Instead, the cases require

courts to look to the specific constitutional right infringed upon and the posture of the plaintiff,

e.g., whether the plaintiff was a free citizen, a pretrial detainee, or a convicted prisoner. From there,

the court determines which constitutional provisions apply to that violation.

Importantly, Plaintiffs have pled both that the Defendants unconstitutionally seized them,

and also that the Defendants targeted them for vindictive, malicious, and improper prosecution.4

While the Fourth Amendment certainly provides a solid basis for the Plaintiffs’ claims of unlawful

seizure and malicious initiation of baseless criminal charges, neither Conn5 nor Graham6

foreclose—or even address—the Plaintiffs’ due process claim based upon their false arrest, release

on bond, and no-billed charges.

Under these circumstances, the Fourteenth Amendment provides an additional basis for the

 
3
Defendants’ Motion to Dismiss [Doc. No. 32], at ¶ 21.
4
See First Amended Complaint [Doc. No. 27], at ¶¶ 34–36.
5
Conn addressed, in dicta, the section 1983 claim of an attorney that the Court construed as a challenge to an allegedly
unconstitutional search, but who was never arrested and against whom charges were never brought. See Conn, 526
U.S. at 288–89; see also id. at 294 (Stevens, J., concurring) (noting that the issue of an unreasonable search was “not
squarely presented and argued by petitioners in this Court.”).
6
Graham held that a free citizen who was allegedly subjected to excessive force during a brief police seizure, but who
was released and never charged, had to bring his claim under the Fourth Amendment, but as discussed above,
obviously did not involve false and malicious prosecution, as occurred in this case. See Graham, 490 U.S. at 388.

3
 
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Plaintiffs’ claims. In Albright v. Oliver, 510 U.S. 266 (1994), the Supreme Court could not reach

a majority on whether a plaintiff for whom a warrant issued, but who was never arrested or

detained, and whose case was dismissed pretrial, could raise a section 1983 claim under the

Fourteenth Amendment’s Due Process Clause. See id. The Albright warrant—with some parallels

to this case—relied on an unreliable informant’s false testimony. See id. at 268–69 & n.1; see also

id. at 292–93 (Stevens, J., dissenting). While the plurality concluded that the plaintiff’s claim arose

under the Fourth Amendment, that non-binding decision was reached over a vigorous a dissent

that would have held that, in this context, the plaintiff’s claim also raised a Fourteenth Amendment

claim. See id. at 291–316 (Stevens, J., dissenting) (“Because the constitutional protection against

unfounded accusations is distinct from, and somewhat broader than, the protection against

unreasonable seizures, there is no reason why an abandonment of a claim based on the seizure

should constitute a waiver of the claim based on the accusation.”).

Following Albright and other precedents, the Fifth Circuit has permitted Fourteenth

Amendment section 1983 claims for criminal cases dismissed pretrial—like the Plaintiffs’ cases

here. The Fifth Circuit has thus observed 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.” See

Morgan v. Chapman, 969 F.3d 238, 250 (5th Cir. 2020) (internal quotation marks and citation

omitted). Thus, the Midland Christian Five—who were falsely arrested, released on bond, and

whose charges were then no-billed—properly assert their claims for false arrest and the malicious

initiation of criminal charges under the Fourteenth Amendment.

II. Plaintiffs Have Stated a Plausible Fourth Amendment Claim.

As an initial matter, Fifth Circuit law plainly forecloses the Defendants’ argument that this

Court can ignore their constitutional violations based upon an alternative charge, not mentioned in

4
 
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the warrant affidavits. In addition, as discussed below, the Plaintiffs have plausibly alleged a

Fourth Amendment violation under Franks v. Delaware,7 based upon the false statements in the

warrant affidavits.

A. The Defendants’ after-the-fact contention that they had probable cause to

arrest the Midland Christian Five for failing to report an offense that did not
occur cannot create the probable cause that the falsified affidavits otherwise
lack.

The Defendants lead with their chin by first arguing that, even if they unlawfully arrested

the Midland Christian Five using false affidavits (which they certainly did), “no harm-no foul”

because the Defendants could have arrested the Five for something else.8 Specifically, the

Defendants contend they should avoid liability because—according to the Defendants—even

though the Plaintiffs did not conceal an aggravated sexual assault, the Plaintiffs nonetheless failed

to report “indecency of a child”9 This argument contradicts clearly established Fifth Circuit law

and also ignores that the officers lacked probable cause even under their lawyers’ made-for-

litigation, after-the-fact justification.

1. In Arizmendi v. Gabbert,10 the Fifth Circuit expressly rejected the argument that
an alternative basis for probable cause could spare an officer from liability for
lying to obtain an arrest warrant in violation of Franks.

The Defendants disregard binding precedent by contending that “[t]he propriety of

Plaintiffs’ arrest is not judged by the charge Officer Alonzo filed but, instead, on any charge

supported by probable cause that a reasonable officer could have filed based upon the facts.”11

In the context of a Franks violation, this statement is absolutely wrong. Indeed, the Fifth

Circuit expressly rejected this “no-harm-no-foul” argument almost four years ago in Arizmendi v.

 
7
438 U.S. 154.
8
See Defendants’ Motion to Dismiss, at ¶¶20-24.
9
See Defendants’ Motion to Dismiss, at ¶¶20-24.
10
919 F.3d 891, 903 (5th Cir. 2019).
11
Defendants’ Motion to Dismiss, at ¶22 (emphasis original).

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Gabbert, 919 F.3d 891, 903 (5th Cir. 2019). In Arizmendi, a teacher sued officer based upon an

arrest warrant that violated Franks v. Delaware12—much like in this case. See id. at 895-96. The

defendant officer—like the Defendants in this case—argued that he could avoid liability because

a corrected affidavit would have supported probable cause for a different offense than that actually

charged. See id. at 898-99. Indeed, the Arizmendi officer went further still, essentially contending

he accidentally cited the wrong statute in the false affidavit. See id. at 899, n.22.

The Fifth Circuit rejected this argument, saying “[w]e conclude that the validity of [an]

arrest c[an] not be saved by facts stated in the warrant sufficient to establish probable cause for a

different charge from that sought in the warrant.” Arizmendi, 919 F.3d at 894. This holding

forecloses the Defendants’ argument to the contrary here. In this case, Defendants’ false affidavits

charged failure to report Aggravated Sexual Assault and concealing this offense—a state jail

felony.13 Now, the Defendants seek to avoid liability, arguing that the Plaintiffs failed to disclose

the offense of Indecency with a Child (without any intent to conceal)—a misdemeanor.14

Arizmendi binds this Court and plainly forecloses this argument.15

2. The Defendants lacked probable cause that the Plaintiffs violated the mandatory
reporting statute based upon “indecency [with] a child” because this offense did
not occur—and the argument that it did (or that anyone ever had a basis to suspect
that it did) is completely contrary to the allegations in the Complaint.

Even if some scrap of the Defendants’ argument survives the Fifth Circuit’s holding in

 
12
438 U.S. 154 (1978).
13
See, e.g., Arrest Warrant, Exh. 1-002, to Defendants’ Motion to Dismiss [Doc. No. 32-1].
14
See Defendants’ Motion to Dismiss [Doc. No. 32], at ¶¶22-24.
15
The Defendants fail to cite Arizmendi, which discussed their principal authority, Devenpeck v. Alford, 543 U.S. 146
(2004), at length and clearly held that Devenpeck does not apply to warrants violating Franks. While failing to cite
Arizmendi at all, the Defendants cite cases involving warrantless arrests or other inapplicable police conduct—all of
which are completely inapposite given Arizmendi’s holding. See Defendants’ Motion to Dismiss [Doc. No. 32], at ¶¶
21-22 (citing Heien v. North Carolina, 574 U.S. 54 (2014) (warrantless traffic stop based upon reasonable suspicion);
Scott v. United States, 436 U.S. 128, 138 (1978) (discussing proper remedy for failure to strictly comply with wiretap
minimization requirements); Davidson v. City of Stafford, Tex., 848 F.3d 384, 391–92 (5th Cir. 2017), as revised (Mar.
31, 2017) (warrantless arrest); Club Retro, L.L.C. v. Hilton, 568 F.3d 181 (5th Cir. 2009) (warrantless raid); Price v.
Roark, 256 F.3d 364, 369 (5th Cir. 2001) (noting that the false arrest claim arose from a warrantless arrest for multiple
charges on August 13, 1998).

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Arizmendi—which does not appear to be the case—neither the warrant (excised of the Defendants’

false statements), nor the Defendants’ subjective state of mind (which Arizmendi renders

irrelevant) supported an arrest based upon failure to report “indecency [with] a child.”16

Though the Defendants fail to cite the statute that they contend gives rise to the post hoc

justification for the arrest, it appears that they are referring to section 21.11 of the Texas Penal

Code, entitled “Indecency with a Child.”17 But even a cursory review of the statute makes clear

that—not only did the Midland Christian Five lack any facts supporting a “reasonable belief” that

this offense occurred—but the offense did not occur.

To the contrary, the Complaint’s well-pleaded allegations plainly establish that the

Defendants lacked probable cause that the Midland Christian Five reasonably believed “indecency

with a child”18 had been committed for at least two reasons. First, the Complaint makes clear that

neither the Defendants nor the Midland Christian Five ever knew of any facts supporting the

sexual-gratification element required for indecency with a child. In addition, the Complaint makes

clear that the Five were informed—and believed—that the only contact was to the freshman’s

buttocks, not to his anus or genitals, as required to commit indecency with a child.

a. No evidence supported the Plaintiffs having a reasonable belief that any touching
involved in the incident was “inten[ded] to arouse or gratify . . . sexual desire.”

To commit indecency with a child, the person committing the offense must act with “intent

to arouse or gratify the sexual desire of any person.” See Tex. Penal Code Ann. § 21.11(a)(2), (c).

Based upon the facts plainly alleged in the Complaint, the Midland Christian Five were completely

unaware of any fact that would lead any reasonable person to believe that the contact at issue was

for sexual gratification (and no such facts exist). Indeed, the complaint alleges that—from direct

 
16
See Defendants’ Motion to Dismiss [Doc. No. 32], at ¶24.
17
See Tex. Penal Code Ann. § 21.11 (capitalization altered from statutory text to remove all caps).
18
Tex. Penal Code Ann. § 21.11.

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conversations with the students involved—the Five learned that the contact was “locker room

horseplay”19 or “roughhousing.”20 Nothing about the hazing incident in the locker room suggests

that anyone was seeking sexual gratification of any kind. What occurred was—by all accounts—

a hazing event, not a sexual advance. Because no facts existed for the Plaintiffs (or the Defendants,

for that matter) to conclude that the sophomore sought sexual gratification, the Plaintiffs lacked a

basis—reasonable or otherwise—to believe that indecency with a child occurred.

b. No evidence supported the Plaintiffs having a reasonable belief that any “sexual
contact” for purposes of the indecency statute occurred.

The Complaint also alleges that the Midland Christian Five only received information that

the freshman boy had been poked on the buttocks with a bat21—contact that cannot support a

charge of indecency with a child. See Tex. Penal Code Ann. §§ 21.11(c). The indecency statute

criminalizes both “exposure”—not at issue here—and “sexual contact,” a defined term in the

statute. For purposes of indecency with a child, “sexual contact” means contact with the “anus,

breast, or any part of the genitals,” but not the buttocks. See id. “Genitals” does not include the

buttocks, as is evidenced by other provisions in chapter 21 of the Penal Code. See, e.g., Tex. Penal

Code Ann. §21.16 (defining the term “intimate parts” to include both “genitals” and “buttocks,”

because these words describe different things). The Midland Christian Five therefore lacked any

basis to believe that “sexual contact”—as defined in the statute—occurred, so no probable cause

existed that the Five criminally failed to report a violation of this statute.

B. The Complaint plausibly pleads both elements of a Franks violation.

In addition to their after-the-fact probable cause argument failing, Defendants’ contention

 
19
See First Amended Complaint [Doc. No. 27], at ¶¶1, 9-10, 45.
20
See First Amended Complaint [Doc. No. 27], at ¶11.
21
See, e.g., First Amended Complaint [Doc. No. 27], at ¶¶9-11, 71.

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that Plaintiffs have not stated a plausible claim under Franks is plainly incorrect.22 It is elementary

that at the motion to dismiss stage, this Court must accept Plaintiffs’ well-pleaded facts as true.

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The egregious falsehoods and

omissions in Plaintiffs’ arrest warrant affidavits have been thoroughly detailed in Plaintiffs’

complaint.23 Accepting Plaintiffs’ allegations as true, as the Court must, Plaintiffs have shown that

the warrant affidavits contained overwhelming material falsehoods and omissions. Franks’s

elements of (1) false information and (2) lack of probable caused are discussed in turn below.

1. The Complaint specifically alleges numerous false statements and material

omissions in the warrant affidavits.

The Complaint sets forth in detail the numerous falsehoods and material omissions that are

evident when comparing the sworn arrest affidavits to the evidence that police collected. Among

the more egregious of these falsehoods and omissions is Defendant Alonzo’s failure to include

information about the source of the report to police that claimed anal penetration with a bat. She

did not include any facts that would have allowed an independent magistrate to assess her source’s

credibility (or lack thereof) or the reliability (or lack thereof) of the information the police received.

Specifically, Defendant Alonzo omitted that the report came not from a victim, or from a

person who had direct knowledge, but was based upon hearsay from a perpetually disgruntled

parent of a student who was not present for the incident.24 She failed to detail that the parent’s

report came after the educators had already investigated and after the alleged victim repeatedly

stated that the bat did not penetrate his anus.25 And Defendants failed to disclose that all of the

other students directly involved in the incident corroborated that no penetration occurred—only

 
22
Franks v. Delaware, 438 U.S. 154 (1978).
23
First Amended Complaint [Doc. No. 27], at ¶¶16–26 (inclusive of chart outlining the falsehoods).
24
See, e.g., First Amended Complaint [Doc. No. 27], at ¶¶21-22.
25
First Amended Complaint [Doc. No. 27], at ¶¶21, 25.

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poke on the freshman’s fully-clothed buttocks.26

Additionally, the Defendants continually, falsely interchanged the word “anus” for

statements Plaintiffs made about a “buttocks” and generally misstated the Plaintiffs’ knowledge.

For instance, Defendants stated that Plaintiffs Ellis and Lee “knew” that “one of [sic] baseball

players had a baseball bat shoved into his anus.”27. This was a false statement.28 And Defendant

Alonzo swore that during a conversation with Defendant Fonseca, Plaintiff “Lee stated that their

investigation found the baseball bat did in fact touch [the freshman’s] anus but did not go inside.”29

This was another patently false statement—one that is directly controverted by video from

Defendant Fonseca’s body camera.30

Another material omission occurred in the statement that the alleged victim “did not have

a forensic interview, nor did he have a SANE done at that time due to law enforcement not being

notified of the incident.”31 This statement deliberately created the misimpression that no SANE

exam occurred when, in fact, a SANE exam occurred five days prior to the affidavits.32 And

significantly, this exam determined that no injury or trauma existed—additional material facts

intentionally or recklessly omitted from the affidavits.33 Thus, Defendants’ claim that the affidavits

did not contain false or misleading information or omissions clearly fails.

2. A “corrected” warrant affidavit without the false statements and omissions

would not have supported probable cause of failing to report aggravated sexual
assault.

A corrected affidavit would not have established probable cause that Plaintiffs had

 
26
First Amended Complaint [Doc. No. 27], at ¶¶21.
27
See, e.g., Arrest Warrant, Exh. 1-004, to Defendants’ Motion to Dismiss [Doc. No. 32-1].
28
See First Amended Complaint [Doc. No. 27], at ¶24..
29
See, e.g., Arrest Warrant, Exh. 1-004, to Defendants’ Motion to Dismiss [Doc. No. 32-1].
30
See First Amended Complaint [Doc. No. 27], at ¶25.
31
See, e.g., Arrest Warrant, Exh. 1-005, to Defendants’ Motion to Dismiss [Doc. No. 32-1].
32
First Amended Complaint [Doc. No. 27], at ¶23.
33
See First Amended Complaint [Doc. No. 27], at ¶23.

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reasonable cause to believe an aggravated sexual assault occurred. A corrected affidavit would

have, at a minimum, stated as follows.

On Thursday, January 20, 2022, Plaintiff Ellis received a multilevel hearsay report
that, days before, a freshman baseball player had been injured in an incident involving
a bat, severely injuring the freshman and requiring him to miss school. Ellis easily
determined that the alleged victim had not missed school. So Plaintiff Ellis asked
Plaintiffs McClendon and Plaintiff Counts to investigate. And Plaintiff Ellis informed
Plaintiff Lee of the investigation. Plaintiff Russell was absent from work due to a
severe COVID infection that week, and did not return until the following Monday.34

Plaintiffs McClendon and Counts spoke with the freshman who stated that the
incident was “not a big deal” and who repeatedly stated to the administrators, on more
than one occasion, that the bat did not penetrate his “butt hole.” Plaintiffs McClendon
and Counts also spoke with several other baseball players directly involved in the
incident who reported, like the freshman himself, that the freshman had been placed
on the ground by one other sophomore baseball player and that the sophomore player
poked the freshman on his bottom with a bat one time. The freshman player was
wearing baseball pants and sliding shorts that were fully fastened and that remained
on. On Monday, January 24, the sophomore player admitted that he was the one who
had poked the freshman on the behind with the bat. The sophomore player also
informed the administrators that there had been no penetration.35

The following Thursday, January 27, the parent of a different freshman baseball
player—a player not present the day of the incident—sent emails to Plaintiffs,
alleging that during the incident, the bat deeply penetrated the freshman’s anus. That
parent, Matthew Friez, would not allow his son to directly speak about this false
rumor. Plaintiff Lee informed Friez that the incident had been investigated and that
Friez’s account was completely inconsistent with what had occurred. Plaintiff Lee
twice encouraged Friez to report the incident if Friez thought it appropriate to do so.36

That Friday, January 28, Matthew Friez reported to police, based on his son’s hearsay
account, that the freshman victim’s anus had been penetrated. That day, Plaintiff Lee
voluntarily agreed to an interview with Defendant Fonseca and another officer that
was recorded. During that interview, Lee informed Defendant Fonseca that, after
interviewing everyone involved in the incident, including the freshman “victim,” the
administration found no evidence that the bat had penetrated anyone’s anus. On that
same day, Defendant Fonseca also spoke with the freshman’s mother, who was a
teacher and who also had the same reporting obligations as Plaintiffs. The freshman’s
mother knew of the incident but was shocked to learn of Matthew Friez’s account of
it. Defendant Fonseca comforted the mother that Plaintiff Ellis had not been told

 
34
See First Amended Complaint [Doc. No. 27], at ¶¶12-14.
35
See First Amended Complaint [Doc. No. 27], at ¶¶14-15.
36
See First Amended Complaint [Doc. No. 27], at ¶¶15-21.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 17 of 31

about any alleged penetration prior to Matthew Friez’s account.37

Two weeks after Friez’s police report, on Friday, February 11, law enforcement
spoke directly with the alleged victim, who at that time stated that the incident
occurred on “freshman initiation day” and that the sophomore had “put a bat in his
butt” and that “his underwear was pushed in his butt.” See Def. Ex. 1, ECF No. 32-1,
at 3–4. A SANE exam indicated no injury or trauma.38

On Monday, February 14, Plaintiff Lee contacted Defendant Alonzo and expressed
his desire to continue cooperating with the investigation. Plaintiff Lee requested that
Defendant Alonzo obtain a warrant to ensure compliance with FERPA. Defendant
Alonzo obtained a warrant and executed it the same day, obtaining the notes of the
school’s investigation among other items. Defendant Alonzo then conducted
recorded, voluntary interviews with Plaintiffs Lee, Ellis, Counts, and McClendon.
Plaintiffs stated in those interviews that no evidence had been presented to them to
suggest that a bat had contacted or penetrated the freshman’s anus or that any form
of a sexual assault had occurred, and that in fact, their investigation led them to
affirmatively conclude the opposite. Plaintiff Russell was not present on campus to
be interviewed; however, he contacted Defendant Alonzo, as instructed, to schedule
his voluntary interview for February 16th.39  

The freshman player’s behavior did not change following the incident, and he felt
safe at school and baseball practice following the incident.40  
 
With these corrections, the affidavit would have lacked facts warranting a prudent belief

that Plaintiffs had reasonable cause to believe an aggravated sexual assault on the freshman player

had occurred. See Gerstein v. Pugh, 420 U.S. 103, at 111 (1975). Instead, a prudent person would

have believed that, prior to Friez’s report to police, Plaintiffs had no cause to believe that an

aggravated sexual assault occurred at all—and substantial evidence that one had not.

Furthermore, the corrected affidavit would have lacked probable cause that anyone sought

to conceal the locker room incident from the authorities—because the Plaintiffs never engaged in

any concealing behavior. To the contrary, Plaintiffs investigated what occurred and fully

cooperated with the police investigation. Thus, “[t]aking the[ ] allegations [of the Complaint] as

 
37
See First Amended Complaint [Doc. No. 27], at ¶¶15-16.
38
See First Amended Complaint [Doc. No. 27], at ¶¶16-17.
39
See First Amended Complaint [Doc. No. 27], at ¶¶17-18.
40
See First Amended Complaint [Doc. No. 27], at ¶23.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 18 of 31

true and viewing . . . them in the light most favorable to the Plaintiffs, the ‘corrected’ content of

the affidavit is insufficient to establish particularized probable cause for arrest[.]” Terwilliger, 4

F.4th at 283; see also Winfrey, 901 F.3d at 495.

3. Laviage is inapposite.

Citing Laviage v. Fite, 47 F.4th 402 (5th Cir. 2022), Defendants argue that, notwithstanding

of any excuse on the part of the mandatory reporter, a mandatory reporting statute triggers criminal

liability for failure to report creating probable cause to arrest.41 But the issue here is not that the

Plaintiffs had an excuse, it is that they had no obligation. Indeed, as discussed above, the Family

Code requires a professional to make a report only where that “professional has reasonable cause

to believe that a child has been abused[.]” Tex. Fam. Code Ann. § 261.101(b) (emphasis added).

The Family Code also provides that “[a] report should reflect the reporter’s belief that a

child has been or may be abused or neglected or has died of abuse or neglect.” See id. § 261.102

(emphasis added). Thus, significantly, the Family Code does not require reporting all reports of

child abuse—no matter how unsubstantiated—to law enforcement. And, to the contrary, the Code

affirmatively states that reporters “should” only report when they believe abuse has occurred—a

circumstance obviously lacking here, as an accurate affidavit would have made clear. Id.

The “reasonable cause” and actual-belief requirements distinguish this case from Laviage.

In Laviage, a statute required reporting of certain scrap metal transactions. 47 F.4th at 404–05. The

plaintiff in Laviage did not dispute that he was required to report the transactions at issue—he just

said his failure should be excused because of a computer issue. Id. at 405. Because the plaintiff

could have complied without a computer, and because the statute penalized knowing failures

(regardless of intention or willfulness), probable cause existed. Id. at 407.

 
41
See Defendants’ Motion to Dismiss [Doc. No. 32], at ¶17-18.

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Laviage is inapposite. Here, the Midland Christian Five were not required to report the

locker room horseplay incident and have alleged ample plausible facts establishing that the lack of

any reasonable basis to conclude that reportable abuse occurred. The Defendants knew these facts,

but misrepresented or omitted them. Certainly, none of the Midland Christian Five believed that

abuse had occurred, as required to make a report under section 261.102 of the Family Code. The

Plaintiffs here thus do not seek to excuse a required report—as did the plaintiff in Laviage—but

have plausibly pleaded that no report was required at all and that the Defendants lied to create

probable cause that one was. This is nothing like Laviage.

III. Plaintiffs plausibly pleaded both lack of probable cause and malice in support of their
malicious prosecution claim.

Defendants further state that Plaintiffs have not alleged facts to demonstrate that

Defendants acted maliciously and without a proper purpose to support a malicious prosecution

claim. But the Complaint alleges just that. For example, the Complaint states that Defendant

Alonzo exclaimed in outrage that the Plaintiffs dared investigate an unsubstantiated rumor at the

school level: “I’m pissed, I’m fucking pissed, I’m so mad.”42 Plaintiffs explain how Defendant

Alonzo needlessly and dramatically brought several police vehicles and a crime scene

investigation van to simply collect the school’s investigation records for the locker room

incident.43

The Complaint alleges that that Defendants sought to publicly humiliate the Plaintiffs and

to create an enduring stigma.44 The Defendants arrested the career educators at Midland Christian

School and perp-walked them out of the front doors of the school in handcuffs.45 Defendants

 
42
See First Amended Complaint [Doc. No. 27], at ¶15.
43
See First Amended Complaint [Doc. No. 27], at ¶¶60–61.
44
See First Amended Complaint [Doc. No. 27], at ¶63.
45
See First Amended Complaint [Doc. No. 27], at ¶63.

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denied Plaintiffs’ request to self-surrender to the police station and apparently did not consider

allowing Plaintiffs to appear on a summons.46 The Complaint explains that Defendants ensured

the news media was present for Plaintiffs’ perp-walks and arrests.47 Throughout the Complaint,

Plaintiffs outline the overwhelming number of facts that Defendants omitted from, and misstated

in, the arrest warrant affidavits despite their knowledge of those facts. And the Complaint details

the Defendants’ malicious and vindictive retaliation against the Plaintiffs’ filing of this lawsuit by

bringing additional, baseless charges against Plaintiffs Lee, Ellis, and Counts.48

Again, accepting Plaintiffs’ allegations as true and drawing all reasonable inferences in

Plaintiffs’ favor, Defendants’ malice and improper purpose is sufficiently alleged. See e.g.,

Winfrey, 901 F.3d at 493–96 (5th Cir. 2018) (denying summary judgment for so-called “malicious

prosecution” claim where Plaintiff alleged that his arrest warrant contained numerous material

omissions and misstatements).

IV. The independent intermediary doctrine cannot excuse the constitutional violations.

The Defendants’ reliance upon the independent intermediary doctrine ignores the case law

stating that the independent intermediary doctrine does not apply to situations in which the

intermediary is presented with Defendants’ falsehoods and omissions. See, e.g., Winfrey, 901 F.3d

at 496–97; see also Terwilliger, 4 F.4th at 281 (“Functionally, the holding of Franks is an

exception to the independent intermediary doctrine . . . .”) (cleaned up).

Here, the Complaint alleges that the arrest warrant affidavits presented to the magistrate

were false and misleading—and the affidavits themselves reflect this—so the magistrate did not

break the causal chain, as necessary to apply the independent intermediary doctrine.

 
46
See First Amended Complaint [Doc. No. 27], at ¶63.
47
See First Amended Complaint [Doc. No. 27], at ¶102.
48
See First Amended Complaint [Doc. No. 27], at ¶¶4–5, 22–27.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 21 of 31

V. Plaintiffs Have Stated a Plausible Claim of Supervisory Liability Against Defendant

Sharp.

The Defendants’ arguments against liability for Defendant Sharp ignore the text of the

Complaint. Indeed, the Complaint explains that Defendant Sharp directly supported Defendant

Alonzo in the malicious pursuit of false arrest warrants against Plaintiffs.49 The Complaint also

alleges that Defendant Sharp was involved throughout Defendant Alonzo’s tunnel-visioned and

biased investigation,50 including Sharp’s presence when Defendant Alonzo threatened to make

arrests if the educators informed the sophomore boy’s parents of his arrest, saying “I don’t give a

fuck.” 51 Sharp also initially insisted on perp-walking the sophomore through the school’s front

door making his arrest more conspicuous.52 Finally, Defendant Alonzo told Defendant Sharp “it’s

good to know where to park,” foreshadowing their premeditated plan to later arrest Plaintiffs in a

visible and humiliating manner based upon the false affidavits.53

The Complaint further details that Defendant Sharp participated in the execution of the

arrest warrants at the Midland Christian School and purposefully created a public spectacle to

humiliate Plaintiffs.54 It alleges that Defendant Sharp supported Defendant Alonzo’s false arrest

warrant affidavits by assisting in their preparation and by knowingly providing false information

that was included therein.55 The Complaint further alleges that Defendant Sharp, as Defendant

Alonzo’s supervisor, approved felony charges which required the false allegations that each

Plaintiff concealed the locker room incident.56 And it alleges that Defendant Sharp failed to

 
49
First Amended Complaint [Doc. No. 27], at ¶18.
50
First Amended Complaint [Doc. No. 27], at ¶55.
51
First Amended Complaint [Doc. No. 27], at ¶56.
52
First Amended Complaint [Doc. No. 27], at ¶56.
53
First Amended Complaint [Doc. No. 27], at ¶57; see also id. ¶¶ 60, 61, 63, 86.
54
First Amended Complaint [Doc. No. 27], at ¶¶63-64, 102.
55
First Amended Complaint [Doc. No. 27], at ¶¶63, 66, 69, 86, 117.
56
First Amended Complaint [Doc. No. 27], at ¶¶86, 118.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 22 of 31

intervene or discipline Defendant Alonzo for pursuing the baseless criminal charges and arrests.57

Significantly, the Complaint also states that Defendant Sharp spearheaded the filing of the new,

retaliatory charges against Plaintiffs Lee, Ellis, and Counts.58

The Complaint states that Sharp knew of Defendant Alonzo’s repeated pattern of

unconstitutional and unprofessional behavior.59 And accordingly, the Complaint asserts that

Defendant Sharp, among others, failed to adequately train and supervise Defendant Alonzo.60

All of these well-pleaded facts regarding Defendant Sharp’s participation in and approval

of Defendant Alonzo’s unconstitutional conduct, suffice to state a claim against Defendant Sharp

for supervisory liability. See, e.g., Terwilliger, 4 F.4th at 284 (district attorney liable under Franks

for approving mass arrests despite having information that some should not have been arrested).

Defendant Sharp is also directly liable because she “helped prepare the [affidavit] by providing

information for use in it” and based on the role she played. See id. at 283.  Sharp also knew the

facts of the investigation through her participation in it. Those facts showed that Plaintiffs did not

believe reportable abuse occurred and were cooperating, not concealing, any abuse. And yet, Sharp

approved false felony failure to report by concealing charges against each Plaintiff and helped

arrest them. “These allegations are sufficient to tie h[er] to potential Franks liability.” Id.  

VI. The Plaintiffs have plausibly alleged the City of Midland’s municipal liability based
upon Monell.61

The Plaintiffs have alleged ample facts that plausibly support the City of Midland Chief of

Police’s direct involvement with—and ratification of—the City’s unconstitutional and malicious

 
57
First Amended Complaint [Doc. No. 27], at ¶¶117-18.
58
First Amended Complaint [Doc. No. 27], at ¶¶22, 26, 85-86.
59
First Amended Complaint [Doc. No. 27], at ¶69.
60
First Amended Complaint [Doc. No. 27], at ¶69, ¶86.
61
Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658 (1978).

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 23 of 31

arrest and prosecution of the Midland Christian Five. As discussed below, this direct involvement

supports the City’s liability under deliberate choice, ratification, or deliberate indifference theories

of Monell liability with respect to the constitutional violations at issue in this case. In addition, the

“doubling down” by rearresting (falsely) three members of the Five further demonstrates the

existence of a City policy, for which Monell holds the City liable.

Put simply “Monell is a case about responsibility.” Pembaur v. City of Cincinnati, 475 U.S.

469, 478 (1986). And “[t]he spirit and the reality of Monell make municipalities and their public

officials liable for unconstitutional policies they enforce or customs they condone.” Webster v.

City of Houston, 735 F.2d 838, 855 (5th Cir. 1984), on reh’g, 739 F.2d 993 (5th Cir. 1984). Thus,

to adequately plead municipal liability under Monell, “the complaint need only allege facts that

show an official policy, promulgated or ratified by the policymaker, under which the municipality

is said to be liable.” Groden v. City of Dallas, Tex., 826 F.3d 280, 284 (5th Cir. 2016).

Because Monell liability essentially focuses on a municipality’s own responsibility for a

constitutional violation, “it is plain that municipal liability may be imposed for a single decision

by municipal policymakers under appropriate circumstances.” See Pembaur, 475 U.S. at 480. In

fact, multiple scenarios exist when a “single incident” gives rise to municipal liability under

Monell. For example, a policymaker’s single decision gives rise to Monell liability when “the

official or officials responsible for establishing final policy with respect to the subject matter in

question” makes “a deliberate choice to follow a course of action . . . from among various

alternatives.” Pembaur, 475 U.S. at 483. In addition, “[i]f the authorized policymakers approve a

subordinate's decision and the basis for it, their ratification would be chargeable to the municipality

because their decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Finally,

a municipal policymaker’s failure to train employees that exhibits so-called deliberate indifference

18
 
 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 24 of 31

can serve as a basis for municipal liability—even on the first occasion when the failure results in

a deprivation of rights. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). In this

case, the Plaintiffs plausibly alleged these three distinct theories establish the City’s direct liability.

A. The Plaintiffs have plausibly alleged that the issuance of the false warrants in
violation of Franks was a deliberate choice giving rise to municipal liability
under deliberate choice and ratification theories.62

The Complaint alleges that the Midland Chief of Police was directly and knowingly

involved in drafting the false warrant affidavits. The Complaint does not mince words, alleging

that “the Midland Chief of Police was aware of and approved the affidavits, despite knowing they

contained the material misstatements and omissions described [in the Complaint].”63 Elsewhere

the Complaint alleges that the Deputy Chief reviewed the evidence establishing the Plaintiffs’

reasonable conclusion that no reportable abuse occurred, and still—in combination with the

Chief—“encouraged, condone and adopted a policy of promoting the pursuit of the[ ] charges.64

The Defendants do not dispute that the Chief of Police is a city policymaker for purposes

of Monell (and he unquestionably is).65 Nor do the Defendants dispute the Police Chief’s

involvement or contend that these allegations are implausible. Indeed, (1) the orchestrated nature

of the arrests, (2) the police department’s efforts to publicize them, and (3) the false and salacious

manner in which the department characterized the allegations, all strongly support the plausible

inference that the Chief of Police approved the arrests with full knowledge of the many falsities

and omissions in the warrant affidavits—as is specifically alleged in the Complaint.66

 
62
475 U.S. at 483.
63
See First Amended Complaint, Doc. No. 27, at ¶18.
64
See First Amended Complaint, Doc. No. 27, at ¶¶83-84; see also id. ¶137 (noting that the Deputy Police Chief had
indisputably reviewed materials undermining the facts in the warrant affidavits and nonetheless authorized and
encouraged the charges).
65
The Chief of Police’s policymaker status was also repeatedly alleged in the First Amended Complaint. See, e.g.,
66
See First Amended Complaint [Doc. No. 27], at ¶18.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 25 of 31

1. These facts suffice to impose liability for a deliberate decision under Pembaur.

Pembaur held that municipal liability exists if a policymaker “responsible for establishing

final policy with respect to the subject matter in question” makes “a deliberate choice to follow a

course of action . . . from among various alternatives.” 475 U.S. at 83. Here, the Chief of Police’s

direct actions represent exactly the type of deliberate choice establishing liability under Pembaur.

Plainly, the Complaint’s allegations of the Chief’s involvement “allow the court to draw the

reasonable inference that the [city] is liable for the misconduct alleged.” See Iqbal, 556 U.S. at

678. Indeed, the allegation that the Chief “was aware of and approved the affidavits, despite

knowing they contained . . . material misstatements,”67 almost requires the inference that the Chief

deliberately followed this unconstitutional course of action, rather than the constitutional course

of stopping the Defendants from making the unlawful arrests.

2. These facts also suffice to plausibly allege “single-incident” liability because the
Chief of Police ratified the Defendants’ conduct both before and after the
arrests—including by authorizing additional retaliatory charges.

As the Defendants readily acknowledge, a plausible allegation that “the city’s policymaker

approved of the governmental employee’s decision to commit a constitutional violation and

approved of the basis for the governmental employee’s decision to violate federal law,” suffices

to support a claim for municipal liability.68 As discussed above, the Plaintiffs have explicitly and

plausibly allege that the Chief of Police approved the affidavits, knowing they were false.69

Because the federal law violation in this case is the Franks violation, the Complaint thus plausibly

alleges the Chief of Police’s approval of the arrests and the unconstitutional basis for them.

In addition, the Chief’s actions after the Midland Christian Five’s exoneration further

 
67
See First Amended Complaint [Doc. No. 27], at ¶18.
68
Defendants’ Motion to Dismiss [Doc. No. 32], at ¶55 (emphasis original), citing Beattie v. Madison Cnty. Sch. Dist.,
254 F.3d 595, 604 (5th Cir. 2001).
69
See First Amended Complaint [Doc. No. 27], at ¶18.

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 26 of 31

support the existence of a “policy.” In particular, the Chief’s pursuit of additional false charges

against three of the Plaintiffs in retaliation for this lawsuit demonstrates the same type of after-the-

fact ratification that the Fifth Circuit found in Grandstaff v. City of Borger, Tex., 767 F.2d 161,

171 (5th Cir. 1985). In Grandstaff, officers participated in a reckless barrage of gunfire, killing the

plaintiff. See id. at 171. Following the incident, no officers were disciplined and no policies

changed. See id. The Grandstaff court observed that the absence of action following the shooting

“said more about the existing disposition of the City’s policymaker than would a dozen incidents

where individual officers employed excessive force.” Grandstaff, 767 F.2d at 171.

Grandstaff’s central reasoning—that the response to a constitutional violation can strongly

evidence the municipal policy that caused it—has great force here. In this case, not only was the

officer conduct incredibly egregious (though, concededly, not deadly) the ratification consisted of

repeating the same conduct in retaliation for a lawsuit—a far more obvious demonstration of

policy than the mere lack of action in Grandstaff. When looked at together, the egregiousness of

both the constitutional violation and the ratification act support Grandstaff liability.

 The violation here was egregious.

The Defendants acted egregiously in the extreme. Though none of the Midland Christian

Five were killed—as occurred in Grandstaff—the Defendants deliberately and ruthlessly

attempted to assassinate the Five’s reputations and careers. Indeed, the violation here did not arise

from officers misinterpreting a statute—as the Defendants suggest.70 The violation resulted from

the Defendants interpreting the statute perfectly, but lying to satisfy its elements. And not only did

the Defendants lie—but they lied in a manner calculated to insinuate that the Midland Christian

Five had concealed the forced sodomy of a student—an allegation that the Defendants knew to be

 
70
Defendants’ Motion to Dismiss [Doc. No. 32], at ¶58.

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totally untrue and abhorrent. This was egregious.

 The City’s response—a second unlawful arrest and prosecution—is even more
egregious than the lack of action in Grandstaff.

In response to the egregious constitutional violation here, not only were the officers not

disciplined (as in Grandstaff), but the Chief of Police selectively investigated and pursued

additional false charges against three members of the Midland Christian Five.71 This was done in

direct retaliation for this very lawsuit.72 If filing a second set of patently retaliatory charges in

response to being sued for the first does not demonstrate a policy of retaliating against this group

of Christian educators, one struggles to imagine what would. Thus, though the egregiousness of

the violation here arguably varies from Grandstaff, the ratifying act here is significantly more

extreme, giving rise to the same inference that arose in Grandstaff. In this case, repeating a nearly

identical—and, indeed, arguably even more pretextual and false—investigation and charge

following this lawsuit powerfully demonstrates the City’s persecutory policies against the Five.

3. The Plaintiffs also plausibly alleged that the Chief of Police’s deliberate
indifference to conduct by Detective Alonzo caused the unlawful arrest.73

The Midland Christian Five have also plausibly allege that the Chief was deliberately

indifferent to the constitutional violations. The Complaint alleges that the City maintained a policy

of “substandard ethical supervision, including Defendant Alonzo not being “properly supervised

or corrected in conducting trustworthy investigations and providing reliable and trustworthy sworn

testimony before courts.”74 The Complaint also alleges “Defendant Alonzo showed no restraint in

her malicious, public, and humiliating pursuit of false charges against Plaintiffs [indicating no]

fear of intervention or discipline from . . . policymakers[,] . . . [and that her actions] were

 
71
See First Amended Complaint [Doc. No. 27], at ¶¶3-5, 22-27, 84-86, 137-38.
72
See, e.g., First Amended Complaint [Doc. No. 27], at ¶¶84-86.
73
475 U.S. at 483.
74
See First Amended Complaint [Doc. No. 27], at ¶80.

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consistent with pre-authorization from Defendant City of Midland’s policymakers.”75 Finally, the

Complaint alleges these policies “were the moving force behind the violation of Plaintiffs’

constitutional rights.”76 These allegations plausibly support municipal liability.

B. Even though the Complaint adequately alleges “single incident” Monell liability
multiple incidents support the Plaintiffs’ municipal liability claims.

Finally, though the Plaintiffs have plausibly alleged municipal liability for a “single

incident” under all of the theories discussed above, it also warrants emphasis that the Plaintiffs

have alleged more than a single incident in support of the city’s apparent policy of falsely and

maliciously persecuting these particular Christian educators.

Indeed, the Complaint plausibly alleges that, after the Plaintiffs informed the City that this

lawsuit was coming, the city moved forward with additional false charges against three of the

Plaintiffs in this case (based upon an incident that occurred before the incident in this case).77 Thus,

with respect to the recent charges, the Plaintiffs allege that “it is inconceivable—given the

widespread publicity that this case has received—that th[e] nakedly vindictive abuse of power

[demonstrated in the second charges] could have occurred without the knowledge, approval, and

direct involvement of the highest policymakers at the City of Midland, including upon information

and belief, the Chief of Police.”78 This plausibly alleges an additional incident establishing the

City’s unconstitutional policy to persecute the Christian educator Plaintiffs in this case.

VII. The Individual Defendants Are Not Entitled to Qualified Immunity.

Qualified immunity “balances two competing societal interests: the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from

 
75
First Amended Complaint [Doc. No. 27], at ¶126.
76
See First Amended Complaint [Doc. No. 27], at ¶123.
77
See First Amended Complaint [Doc. No. 27], at ¶¶3-5, 22-27, 84-86, 137-38.
78
See First Amended Complaint [Doc. No. 27], at ¶25.

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harassment, distraction, and liability when they perform their duties reasonably.” Tyson v. County

of Sabine, 42 F.4th 508, 515 (5th Cir. 2022) (cleaned up). Thus, it “only immunizes public officials

from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights.” Id. (cleaned up).

As the Fifth Circuit has acknowledged, since Franks v. Delaware, 438 U.S. 154 (1978), “it

has been clearly established that a defendant’s Fourth Amendment rights are violated if (1) the

affiant in support of the warrant, includes a false statement knowingly and intentionally, or with

reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding of

probable cause.” Winfrey, 901 F.3d at 493 (cleaned up). Because clearly established law undergirds

the factual allegations for the section 1983 claims, Defendants are not entitled to qualified

immunity. See id.; see also Terwilliger, 4 F.4th at 284 (Franks claim survived 12(b)(6) motion on

qualified immunity); Deshotel v. CardCash Exch., Inc., No. 6:19-373, 2020 WL 2319300, at *8

(W.D. La. Apr. 2, 2020), adopted by, 2020 WL 2308201 (W.D. La. May 8, 2020) (same).

Defendants Sharp and Fonseca claim they are entitled to qualified immunity because

Plaintiffs have not alleged that they assisted in the preparation of the warrant affidavits. However,

as explained above, the Complaint does make that allegation against Defendant Sharp,79 and

Defendant Fonseca also did so.80 The Complaint also alleges Fonseca provided materially false

information for the arrest warrant affidavits, that Plaintiff Lee found the baseball bat touched the

freshman’s anus.81 Thus, Defendants Sharp and Fonseca are not entitled to qualified immunity.82

 
79
First Amended Complaint [Doc. No. 27], at ¶¶63, 66, 69, 86, 117.
80
See, e.g., First Amended Complaint [Doc. No. 27], at ¶¶63, 66, 69.
81
First Amended Complaint [Doc. No. 27], at ¶51.
82
Alternatively, if questions regarding each individual Defendant’s knowledge and participation in the false arrests
exist (which should not be the case), limited discovery prior to ruling on the applicability of qualified immunity would
be appropriate. See Backe v. LeBlanc, 691 F.3d 645, 648–49 (5th Cir. 2012) (describing limited discovery on qualified
immunity questions prior to ruling on a 12(b)(6)); see also Deshotel, No. 6:19-373, 2020 WL 2319300, at *8–9.

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CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’

motion to dismiss.

Date: February 17, 2023. Respectfully submitted,

RUSTY HARDIN & ASSOCIATES, LLP

By: /s/ Russell Hardin, Jr.

RUSSELL HARDIN, JR.
Attorney in Charge
Texas State Bar No. 08972800
JOHN MACVANE
Texas State Bar No. 24085444
AISHA DENNIS
Texas State Bar No. 24128655
1401 McKinney Street, Suite 2250
Houston, Texas 77010
(713) 652-9000 phone
(713) 652-9800 fax
Email: rhardin@rustyhardin.com
Email: jmacvane@rustyhardin.com
Email: adennis@rustyhardin.com

LAW OFFICES OF JEFF PARRAS

By: /s/ Jeffrey Parras

JEFFREY PARRAS
Texas State Bar No. 00792741
908 West Wall Street
Midland, Texas 79701
(432) 687-1606 phone
(432) 687-1607 fax
Email: jparras@parraslaw.net

COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that I served the foregoing pleading on all parties and counsel of record by filing
it with the Court’s electronic filing system on February 17, 2023.

John MacVane

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 Case 7:22-cv-00185-BL Document 37 Filed 02/17/23 Page 31 of 31

John MacVane

26