Guerra v. Castillo

Case: 22-40196     Document: 00516886520       Page: 1    Date Filed: 09/07/2023




           United States Court of Appeals
                for the Fifth Circuit                                United States Court of Appeals
                                                                              Fifth Circuit
                               ____________                                 FILED
                                                                     September 7, 2023
                                No. 22-40196
                                                                       Lyle W. Cayce
                               ____________                                 Clerk

   Rodney Guerra,

                                                         Plaintiff—Appellant,

                                     versus

   Baudelio Castillo; City of Alamo, Texas,

                                           Defendants—Appellees.
                  ______________________________

                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 7:20-CV-401
                  ______________________________

   Before Richman, Chief Judge, and King and Higginson, Circuit
   Judges.
   Stephen A. Higginson, Circuit Judge:
         Rodney Guerra, formerly a patrol sergeant in the Alamo, Texas police
   department, brought a § 1983 action against the City of Alamo (the “City”),
   former chief of police Baudelio Castillo, and several other officers in
   connection with an alleged scheme to have Guerra fired and arrested on
   bogus charges. The district court dismissed the City and the other officers
   under Federal Rule of Civil Procedure 12(b)(6), then dismissed Castillo
   under 12(c). Guerra appeals the dismissals of Castillo and the City. We
Case: 22-40196       Document: 00516886520         Page: 2   Date Filed: 09/07/2023




                                    No. 22-40196


   REVERSE the dismissal of Castillo, AFFIRM the dismissal of the City,
   and REMAND for further proceedings.
                                         I.
          In reciting the following allegations from Guerra’s complaint, we
   “accept all facts as pleaded and construe them in the light most favorable to
   [Guerra].” Crane v. City of Arlington, 

 (5th Cir. 2022);
   Vardeman v. City of Hous., 

 (5th Cir. 2022) (“The Rule
   12(c) standard is the same as that applied to Rule 12(b)(6).”).
          Guerra was promoted to sergeant in the patrol department of the
   City’s police department in the first half of 2018. In July of 2018, a
   subordinate patrol officer arrested a suspect for driving while intoxicated and
   the suspect spat on the officer’s face. But the suspect was a strong political
   supporter of the City’s mayor (the “Mayor”) who called then-police chief
   Castillo, Guerra’s direct superior, and urged that the charges be dropped.
   Castillo proceeded to call Guerra and urged Guerra to tell the officer to drop
   the charges. But Guerra, “[i]n support of his officer,” refused and, in
   Guerra’s words, “unwittingly stoked the maliciousness, vengefulness, and
   ire of Defendant Castillo who was furious at Plaintiff [Guerra] for making him
   appear ‘worthless’ in the eyes of [the] Mayor.”
          During the same period, a probationary patrol officer (the
   “Probationary Officer”) was released for failure to meet her probationary
   goals and “accidentally forgot a pair of prescription rayban (reading) glasses
   in her patrol unit.” The glasses were found by an officer who turned them
   over to former defendant Sergeant Xavier Martinez. Martinez did not place
   the glasses in the lost and found or the evidence room, but rather on his own
   desk, in the same area where Guerra’s desk was located. As the complaint
   then describes:




                                         2
Case: 22-40196     Document: 00516886520           Page: 3   Date Filed: 09/07/2023




                                    No. 22-40196


          After Martinez placed the reading eyeglasses on his own desk,
          Plaintiff Guerra saw the reading glasses on Defendant
          Martinez’s desk, tried them on, and placed them on his own
          desk. For about the next month, with the knowledge of the
          other supervisory officer and Sergeants, Srgt. Martinez and
          Srgt. Guerra played “tug of war” with the reading eyeglasses,
          as each would playfully take the reading eyeglasses from the
          other’s desk and place them on his own desk for use.
          Soon after, Castillo enlisted an investigator and directed him “to ‘find
   a way to get rid of’” Guerra. The investigator homed in on the glasses, but at
   least one officer told the investigator, “we really don’t have anything” on
   Guerra for merely using the glasses. The investigator informed Castillo that
   the investigation “conclusively established that no crime had been
   committed” by Guerra, but Castillo allegedly responded, “I don’t care. He
   can beat the charge, but he can’t beat the ride. Get me enough to file a
   warrant!”

          Castillo then enlisted an “Internal Affairs Officer” to conduct “an
   administrative investigation” regarding the glasses, and the Internal Affairs
   Officer attempted to enlist the assistance of the Probationary Officer, the
   former owner of the glasses, in filing criminal charges. The Probationary
   Officer initially expressed no interest, saying, “Throw the glasses away.”
   However, “[a]fter a significant amount of cajoling and pressuring, [the
   Officer] agreed to provide a statement that she had not authorized anyone to
   use her glasses.”
          Subsequently, on October 19, 2018, the Internal Affairs Officer
   notified Guerra that “he was being investigated for ‘property that was
   checked out from the evidence room’ and allegedly ‘appropriated by
   [Guerra] without cause or justification,’” months earlier. Castillo
   immediately placed Guerra on administrative leave and informed him he was




                                         3
Case: 22-40196      Document: 00516886520             Page: 4    Date Filed: 09/07/2023




                                     No. 22-40196


   required to appear for an interview with the Internal Affairs Officer several
   days later. Guerra claims he voluntarily appeared, denied the charges, and
   explained the situation, but “his explanation was falling on deaf ears,” so he
   requested “a full and open evidentiary hearing to get to the truth of the
   allegations.” That hearing would never be provided.
          Soon after, on October 24, Castillo “resorted to ‘blackmail’ against
   [Guerra] by expressly informing him that if he did not resign by 5:00 p.m. on
   that day, he was going to terminate him and file a criminal prosecution.” This
   was despite the fact Castillo “actually [k]new that no probable cause
   existed.” Guerra refused to resign.
          On     October    25,   Castillo       “officially   suspended   [Guerra],
   recommended his termination, and ordered him to surrender his weapon and
   badge,” and an arrest warrant was issued against Guerra for Class B
   misdemeanor theft. Guerra’s counsel arranged to voluntarily present Guerra
   for arraignment at an agreed time and hour on October 26, but when Castillo
   learned of the timing, he contacted “all of the local television and print media
   to be present at the arraignment,” “parad[ing]” Guerra before the local
   media and “effectively destroying Plaintiff’s future credibility and career as
   a law enforcement officer.” Guerra immediately posted his bond.
          On November 2, 2018, Guerra was officially terminated in a letter
   from former defendant Luciano Ozuna. Plaintiff’s counsel requested an
   administrative hearing from Ozuna on November 7, “to discuss the false
   allegations against Plaintiff that had wrongfully resulted in his dismissal[,] but
   the hearing was never provided.”
          A few months later, the complaint claims, “Defendant Castillo was
   completely incensed and enraged” when he learned the district attorney was
   about to dismiss the theft charge against Guerra because the district attorney
   had found “no evidence of a theft having been committed.” Castillo,




                                             4
Case: 22-40196        Document: 00516886520              Page: 5      Date Filed: 09/07/2023




                                         No. 22-40196


   therefore, “instructed his investigator . . . to change and draw up some new
   statements and affidavits to obtain a new arrest warrant,” this time pushing
   a “tampering with evidence” charge. In clarification of his complaint,1
   Guerra alleges that Castillo “intentionally instructed and directed his
   subordinates to file perjured ‘Probable Cause Affidavits’ with the Alamo
   Municipal Court for presentment to the district attorney’s office despite his
   actual knowledge that critical sworn ‘facts’ were false and would lead to
   Plaintiff’s wrongful arrest” (emphasis in original).
           Guerra’s counsel again arranged for Guerra to appear at a specific
   time when a judge was ready and able to set his bond. Guerra appeared on
   January 8, 2019. The media was again present because Castillo “had advised
   [them] that he would be having a press conference.” Castillo then “stopped”
   his staff from taking Guerra to the courthouse because “Castillo decided he
   was going to make Plaintiff Guerra sit in a jail cell overnight.” The complaint
   alleges Guerra’s cell was cold, he was denied a blanket, and Guerra’s counsel
   was not allowed to see him.
           All charges against Guerra were dismissed on May 2, 2019, based on
   insufficient evidence.
           Guerra timely filed suit under 

 against Castillo, the
   City, and several other involved officers. Relevant here, Guerra’s complaint
   asserts Fourth Amendment false arrest and malicious prosecution claims,
   along with a First Amendment retaliation claim, against Castillo. It also
   alleges the City is liable under Monell v. Department of Social Services of City
   of New York, 

 (1978), citing both Castillo and “the City

           _____________________
           1
             The district court invited Guerra to clarify his complaint and answer several
   specific inquiries. No party objects to our treating this clarification as part of Guerra’s
   complaint for purposes of 12(b)(6) and 12(c), as the district court did below.




                                               5
Case: 22-40196       Document: 00516886520           Page: 6    Date Filed: 09/07/2023




                                      No. 22-40196


   Manager,” Ozuna, as policymakers on whom the City’s liability should be
   based.
            The other officers filed a motion to dismiss under 12(b)(6), which the
   district court granted. Guerra does not challenge their dismissal on appeal.
            The City also filed a motion to dismiss under 12(b)(6), which the
   district court granted. The district court found that Guerra had failed to point
   to any policymaker on whom the City’s Monell liability might plausibly be
   based.
            Later, Castillo moved to dismiss under 12(b)(6) and 12(c). The court
   denied Castillo’s 12(b)(6) motion because he had already filed an answer to
   Guerra’s complaint but granted Castillo’s 12(c) motion based on qualified
   immunity. It found that Guerra’s Fourth Amendment false arrest claim failed
   to overcome Castillo’s qualified immunity due to an absence of clearly
   established law; his Fourth Amendment malicious prosecution claim is not
   cognizable under Fifth Circuit precedent; and Guerra’s First Amendment
   retaliation claim fails because Guerra did not identify protected speech that
   caused Castillo’s retaliatory acts.2
                                           II.
            Guerra timely appeals the City’s dismissal under 12(b)(6) and
   Castillo’s dismissal under 12(c). We have jurisdiction under 

.
            We review a district court’s grant of a 12(b)(6) motion to dismiss de
   novo. Clyce v. Butler, 

 (5th Cir. 2017). “To survive a motion
   to dismiss, a plaintiff must plead enough facts to state a claim to relief that is

            _____________________
            2
             The district court also rejected Guerra’s Eighth and Fourteenth Amendment
   claims against Castillo, which Guerra has abandoned on appeal.




                                           6
Case: 22-40196      Document: 00516886520          Page: 7    Date Filed: 09/07/2023




                                    No. 22-40196


   plausible on its face.” Crane, 

 (internal quotation marks and
   citation omitted). “When reviewing a motion to dismiss, we must accept all
   facts as pleaded and construe them in the light most favorable to the
   plaintiff.” 

 (internal quotation marks and citation omitted). But “we do
   not accept as true legal conclusions, conclusory statements, or naked
   assertions devoid of further factual enhancement.” Anokwuru v. City of
   Hous., 

 (5th Cir. 2021) (cleaned up). “To survive a Rule
   12(b)(6) motion to dismiss, factual allegations must be enough to raise a right
   to relief above the speculative level.” 

 (internal quotation marks and
   citation omitted).
          A 12(c) motion for judgment on the pleadings is also reviewed de
   novo, and the 12(c) standard “is the same as that applied to Rule 12(b)(6).”
   Vardeman, 

. “To survive a Rule 12(c) motion, a complaint
   must contain sufficient factual matter, accepted as true, to state a claim to
   relief that is plausible on its face.” Laviage v. Fite, 

 (2022)
   (internal quotation marks and citation omitted).
          “The doctrine of qualified immunity protects public officials from
   liability for civil damages ‘insofar as their conduct does not violate clearly
   established statutory or constitutional rights of which a reasonable person
   would have known.’” Jennings v. Patton, 

 (5th Cir. 2011)
   (quoting Pearson v. Callahan, 

 (2009)).
          We undertake a two-pronged analysis to determine whether a
          government official is entitled to qualified immunity, inquiring:
          (1) whether the facts that the plaintiff has alleged make out a
          violation of a constitutional right; and (2) whether the right at
          issue was “clearly established” at the time of the defendant’s
          alleged misconduct.




                                          7
Case: 22-40196      Document: 00516886520           Page: 8    Date Filed: 09/07/2023




                                     No. 22-40196


   

 (citing Pearson, 

). Courts “exercise their sound discretion
   in deciding which of the two prongs of the qualified immunity analysis should
   be addressed first.” Pearson, 

.
          “[A] clearly established right is one that is sufficiently clear that every
   reasonable official would have understood that what he is doing violates that
   right.” Melton v. Phillips, 

 (5th Cir. 2017) (en banc) (internal
   quotation marks and citation omitted). The Supreme Court has
          repeatedly told courts . . . not to define clearly established law
          at a high level of generality. The dispositive question is whether
          the violative nature of particular conduct is clearly established.
          This inquiry must be undertaken in light of the specific context
          of the case, not as a broad general proposition.
   Mullenix v. Luna, 

 (2015) (internal quotations and citations
   omitted).
          When confronted with a qualified-immunity defense at the pleadings
   stage, the plaintiff must plead “facts which, if proved, would defeat
   [the] claim of immunity.” Waller v. Hanlon, 

 (5th Cir. 2019)
   (quoting Westfall v. Luna, 

 (5th Cir. 2018)). The pleading
   standards remain “the same when a motion to dismiss is based on qualified
   immunity. The crucial question is whether the complaint pleads facts that, if
   true, would permit the inference that Defendants are liable under § 1983[,]
   and would overcome their qualified immunity defense.” Terwilliger v. Reyna,
   

, 279-80 (5th Cir. 2021) (internal quotations and citations
   omitted). At the motion to dismiss stage, “[i]t is the plaintiff’s burden to
   demonstrate that qualified immunity is inappropriate.” 

 at 280 (citing Club
   Retro, L.L.C. v. Hilton, 

 (5th Cir. 2009)).




                                           8
Case: 22-40196        Document: 00516886520              Page: 9       Date Filed: 09/07/2023




                                          No. 22-40196


                                              III.
   A. False Arrest
           We begin with Guerra’s false arrest claim and whether the facts
   alleged overcome Castillo’s qualified immunity defense.3
           The Fourth Amendment right to be free from arrest without probable
   cause is clearly established. Terwilliger, 4 F.4th at 285. Guerra’s argument
   that Castillo violated his Fourth Amendment right against false arrest is
   based on the Supreme Court’s decision in Franks v. Delaware, 

   (1978). Franks liability “addresses the distinct issue of false information in a
   warrant application.” Melton, 

. Clearly established law at the
   time of Castillo’s actions laid out that under Franks, § 1983 allows claims
   “against an officer who deliberately or recklessly provides false, material
   information for use in an affidavit in support of a warrant.” Id. at 262 (cleaned
   up). An officer is liable under Franks only if the officer “assisted in the
   preparation of, or otherwise presented or signed a warrant application.” Id.
   at 263. If an officer does not present or sign the affidavit, liability attaches
   only if “he helped prepare the complaint by providing information for use in
   it.” Id. at 264.
           The court below thought Castillo’s alleged actions were relevantly like
   the actions of Sheriff Dolph Bryan in Hampton v. Oktibbeha County Sheriff
   Department, 

 (5th Cir. 2007). In that case, an officer went to a
           _____________________
           3
              Guerra argues that the district court erred when it granted Castillo qualified
   immunity without first holding him to his burden of establishing that he was acting within
   the scope of his discretionary authority. But our review of the record indicates that Guerra
   forfeited this argument below by failing to raise it and by, instead, conceding that Guerra
   can defeat Castillo’s claim to qualified immunity only by showing that Castillo acted
   objectively unreasonably and violated Guerra’s clearly established constitutional right.
   Because Guerra forfeited his scope-of-discretionary-authority argument, we will not
   consider it now. See Thomas v. Ameritas Life Ins. Corp., 

 (5th Cir. 2022).




                                                9
Case: 22-40196       Document: 00516886520              Page: 10     Date Filed: 09/07/2023




                                         No. 22-40196


   school to arrest a student. Id. at 361. The school’s director, Hampton, asked
   multiple times to see a warrant. Id. The officer was reluctant but eventually
   capitulated. Id. Before the officer left the premises with the arrested student,
   two additional officers arrived and told Hampton that the Sheriff Department
   did not permit school personnel to see an arrest warrant for a youth. Id.
   Apparently upset by what the officers perceived as Hampton’s unwarranted
   obstruction, the officers returned to the Sheriff Department and “discussed
   the situation with Sheriff Dolph Bryan,” who “instructed them to fill out an
   affidavit, obtain a warrant, and place Hampton under arrest.” Id. The officers
   did just that and arrested Hampton, who was later acquitted by a court that
   used language suggesting the arrest and charge were dubious. Id. at 361-62.
          Hampton brought a § 1983 suit alleging Franks liability against the
   officers and Sheriff Bryan. Id. at 362. The district court denied qualified
   immunity to the Sheriff. Id. This court then reversed, finding that Hampton
   had failed to allege that Bryan violated Hampton’s constitutional rights
   because Hampton did not claim that Bryan himself prepared or presented the
   warrant. Id. at 365. Moreover, the court held, the Sheriff “cannot be held
   liable under § 1983 for the actions of subordinates on any theory of vicarious
   liability.” Id. (citation omitted).
          We disagree that Castillo’s alleged actions are relevantly like Sheriff
   Bryan’s.4 Guerra’s complaint presents Castillo as the sole moving force
   behind a deliberate, long-term conspiracy to create and file affidavits Castillo
   knew to be false, with the purpose of exploiting the criminal justice system to
   arrest, detain, and torment Guerra for crimes Castillo knew he did not
   commit. Castillo, moreover, ordered the sham investigations that served as

          _____________________
          4
             The district court correctly noted that the facts alleged by Guerra imply that
   Castillo was more involved than the sheriff in Hampton.




                                             10
Case: 22-40196       Document: 00516886520              Page: 11       Date Filed: 09/07/2023




                                         No. 22-40196


   the bases for the false affidavits and pushed the investigations forward despite
   knowing Guerra was innocent. Sheriff Bryan, in contrast, was a bit player in
   a story driven by subordinate officers who themselves desired revenge against
   Hampton, and whose own experiences served as the basis for the allegedly
   false affidavits in that case.5
           Instead, we hold that Terwilliger v. Reyna controls here. 

.
   In that case, 177 people were arrested using a form affidavit after a shooting
   had left 9 dead and at least 20 injured at a May 2015 gathering of motorcycle
   clubs. 

. After the state failed to convict anyone, 31 of the arrestees
   filed § 1983 lawsuits alleging, inter alia, Franks liability against multiple
   defendants, including District Attorney Reyna who had been central to the
   2015 arrests. Id. at 279.
           In a Rule 12 motion to dismiss, Reyna pled both absolute prosecutorial
   immunity and qualified immunity, but the district court denied the motion.
   Id. On appeal, this court agreed with the district court. Our court rejected
   Reyna’s absolute immunity claims because Reyna had been “personally
   investigating the scene of the fracas and taking photographs,” and therefore
   acting as an investigator. Id. at 281. We noted that plaintiffs “allege that
   Reyna was the driving force behind the mass arrests and told Asst. Chief [of
   Police] Lanning that ‘all bikers wearing colors’ should be arrested.” Id. at
   280. And our court also emphasized that plaintiffs “allege that Reyna was

           _____________________
           5
             Even under Hampton’s version of the events, the subordinate officers provided a
   judge with “false information by stating that Hampton ‘obstructed or resisted by force, or
   violence, or threats, or in any other manner’ the arrest of the youth.” 

   (emphasis added). It is plausible the officers and Sheriff Bryan believed it true, however,
   that Hampton “obstructed . . . in any other manner” the youth’s arrest. In contrast,
   treating Guerra’s allegations as true, Castillo certainly knew Guerra had not stolen the
   glasses or taken them from the evidence room, and he knew the investigations were shams,
   but he pushed his subordinates to continue forward regardless.




                                               11
Case: 22-40196     Document: 00516886520            Page: 12   Date Filed: 09/07/2023




                                     No. 22-40196


   continuously updated . . . as to the status of the investigation” and he “had
   access to video footage . . . that revealed many [of the] attendees, including
   many of those arrested, had no connection to the violence or parties involved
   in the violence.” 

          We then proceeded to our qualified immunity analysis and asked
   whether, treating the facts in plaintiffs’ complaint as true, Reyna’s actions
   fell within the ambit of Franks liability. We said,
          Reyna . . . neither signed nor swore to the affidavit. Thus,
          Franks liability can only attach if he provided material
          information for use in the affidavit. The Plaintiffs plead
          generally that Reyna, among others, “caused an affidavit
          against each plaintiff to be presented.” Such conclusory
          language is insufficient standing alone. In more detail, the
          Plaintiffs plead that Reyna was provided with evidence both
          from the scene and interviews of attendees. But, acting
          contrary to the information provided to him, he stated that “all
          bikers wearing colors” should be arrested. Accordingly, and
          treating his function as that of an investigator [subject to
          qualified immunity, rather than a prosecutor who would be
          entitled to absolute immunity], Reyna generated the basic facts
          set out in the probable cause affidavit. Thus, the Plaintiffs
          allege that Reyna “knew the exact wording of the affidavit”
          and knew or recklessly disregarded the fact that, based on the
          exculpatory evidence he had learned, probable cause did not
          exist to arrest some individuals potentially fitting the warrant’s
          criteria. These allegations are sufficient to tie him to potential
          Franks liability.
   Id. at 284.
          Notably, our analysis made no mention of any particular false
   information Reyna provided for use in the affidavits. Instead, we emphasized
   Reyna’s causal role as the driving force behind the false affidavits and arrests,
   alongside the fact he was presented with evidence that at least some bikers




                                          12
Case: 22-40196      Document: 00516886520           Page: 13   Date Filed: 09/07/2023




                                     No. 22-40196


   wearing colors should not be arrested, but, “acting contrary to the
   information provided to him,” told his subordinates and colleagues that all
   bikers wearing colors should be arrested. “Accordingly,” we said, “Reyna
   generated the basic facts set out in the probable cause affidavit.” Id.
   (emphases added).
           Our court then made clear that we were deciding both prongs of the
   qualified immunity analysis against Reyna. Id. at 285. Referring back to the
   analysis quoted above, we found that Reyna’s alleged actions violated the
   “clearly established right to be free from arrest without a good faith showing
   of probable cause.” Id. Importantly, this holding addresses the state of the
   law when Reyna acted in 2015.
           Turning back to the case at bar, we hold that Castillo’s alleged actions
   are relevantly like Reyna’s for purposes of evaluating his potential Franks
   liability at the Rule 12 stage. Castillo was the “driving force” behind the
   conspiracy, and he was “continuously updated” as to the status of the
   investigations he had ordered, including the fact the investigations revealed
   no criminality or impropriety. See id. at 280. Castillo knew probable cause did
   not exist to arrest Guerra, but, acting contrary to that information, pushed
   subordinates to file false affidavits with the purpose of having Guerra fired,
   humiliated, and arrested without probable cause. See id. at 284. And
   importantly, because Reyna’s actions violated clearly established law in 2015,
   see id. at 285, Castillo’s actions violated clearly established law in 2018 and
   2019.
           To the extent our analysis of Reyna’s alleged actions applies
   imperfectly to Castillo’s, that is because Castillo’s alleged actions are more
   outrageous. We note, in particular, that Reyna faced a responsibility to seek
   justice in the immediate aftermath of enormous tragedy and wrongdoing.
   Castillo, in contrast, acted on a personal vendetta, and he exploited the




                                          13
Case: 22-40196     Document: 00516886520               Page: 14   Date Filed: 09/07/2023




                                        No. 22-40196


   criminal justice system to exact revenge. Moreover, while Reyna
   overzealously pursued arrests despite knowing that probable cause did not
   exist for all the arrests, Castillo had only one target, Guerra, whom Castillo
   knew was innocent.
          In sum, because Reyna “generated” the basic facts in the probable
   cause affidavits, such that the district court was correct to deny his Rule 12
   motion based on potential Franks liability, see id. at 284, it follows a fortiori
   that Castillo “generated” the basic facts in the probable cause affidavits and
   the district court erred by granting his Rule 12 motion. Therefore, we
   REVERSE the district court’s dismissal of Guerra’s false arrest claim
   against Castillo and REMAND for further proceedings. “We do not opine
   further on whether [Guerra] may ultimately adduce evidence . . . sufficient to
   prove [his] case.” See id. at 285.
   B. Malicious Prosecution
          Separately, Guerra argues that Castillo is liable under § 1983 based on
   a Fourth Amendment “malicious prosecution” theory. The district court
   rejected this argument on the ground that there “is no Fourth Amendment
   claim for malicious prosecution.” See Morgan v. Chapman, 

, 245
   (5th Cir. 2020) (The Fifth Circuit “used to recognize . . . [a] constitutional
   right to be free from malicious prosecution. Today, it does not.” (citation
   omitted)); 

 (explaining that “an en banc majority of this court extinguished
   the constitutional malicious-prosecution theory” in Castellano v. Fragoza,
   

, 954 (5th Cir. 2003) (en banc)); Anokwuru v. City of Hous., 

 (5th Cir. 2021) (“There is no freestanding right under the
   Constitution to be free from malicious prosecution.”).
          Guerra argues that the district court erred in light of Thompson v.
   Clark, 

 (2022), which presupposes the possibility of a Fourth
   Amendment claim for malicious prosecution. 

 (“[A] Fourth




                                             14
Case: 22-40196       Document: 00516886520             Page: 15      Date Filed: 09/07/2023




                                        No. 22-40196


   Amendment claim under § 1983 for malicious prosecution does not require
   the plaintiff to show that the criminal prosecution ended with some
   affirmative indication of innocence.”); see Armstrong v. Ashley, 

 (5th Cir. 2023) (“[Thompson] overrul[ed] our precedent in
   Castellano.”).6
           But Fifth Circuit case law between 2003 (Castellano) and 2021
   (Anokwuru) explicitly denied the possibility of a constitutional malicious
   prosecution claim. When evaluating whether Castillo violated clearly
   established law for purposes of our qualified immunity analysis, we consider
   whether the law was clearly established “at the time of the defendant’s
   alleged misconduct.” Jennings, 

 (citing Pearson, 

). We AFFIRM the district court’s Rule 12 dismissal of Guerra’s
   malicious prosecution claim against Castillo because this court’s caselaw
   explicitly disclaimed the existence of a constitutional claim for malicious
   prosecution at the time of Castillo’s alleged conduct in 2018 and 2019 and
   Guerra has identified no Supreme Court case law from the same period
   acknowledging such a claim.
                                             IV.
           Guerra also raises a First Amendment retaliation claim against
   Castillo on the theory that Castillo retaliated against Guerra for protected
   political speech.
           The district court found that Guerra failed to allege sufficient facts to
   support this theory, which would require that Guerra engaged in First
   Amendment protected speech and that the protected speech motivated
   Castillo’s retaliatory acts. See Izen v. Catalina, 

 (5th Cir.
           _____________________
           6
             Thompson was published on April 4, 2022, see 

, less than a month
   after the district court rejected Guerra’s malicious prosecution theory on March 8, 2022.




                                              15
Case: 22-40196        Document: 00516886520              Page: 16       Date Filed: 09/07/2023




                                          No. 22-40196


   2005); Sims v. City of Madisonville, 

 (5th Cir. 2018). We
   agree with the district court.
           Guerra plausibly alleges that his refusal to direct his subordinate to
   drop the DWI charges, despite Castillo’s urging, was a but-for cause and
   substantial motivation for Castillo’s retaliatory acts. But Guerra has failed to
   put forward any law that suggests Guerra’s refusal to do as his direct superior
   asked, in the context of his employment as a patrol sergeant, constitutes First
   Amendment protected speech, let alone that it is First Amendment protected
   speech under clearly established law. See Garcetti v. Ceballos, 

 (2006).
           Given that this is a qualified immunity context, “[i]t is the plaintiff’s
   burden to demonstrate that qualified immunity is inappropriate,” even at the
   motion to dismiss stage. Terwilliger, 4 F.4th at 280. We conclude that Guerra
   has failed to overcome Castillo’s qualified immunity because he has put
   forward no authority relevant to the question whether his refusal was
   protected speech.7
           We AFFIRM the district court’s dismissal of Guerra’s First
   Amendment claim against Castillo.



           _____________________
           7
              Separately, Guerra’s briefing sometimes suggests that Castillo retaliated against
   Guerra due to Guerra’s political associations. But we agree with the district court that this
   does not accurately reflect his complaint, which does not plead facts sufficient to plausibly
   infer that Castillo retaliated against Guerra for his political associations. The complaint
   does not suggest, for example, that Castillo retaliated because Guerra failed to support the
   Mayor politically, or because Guerra supported the Mayor’s rival. Guerra’s complaint is
   clear: Castillo retaliated against him for refusing to do as Castillo asked and making him
   appear feckless before the Mayor. Even treating the complaint’s claims as true and
   construing them in Guerra’s favor, the complaint does not plausibly allege that Guerra’s
   political associations were a but-for cause and motivation for Castillo’s actions.




                                                16
Case: 22-40196      Document: 00516886520           Page: 17   Date Filed: 09/07/2023




                                     No. 22-40196


                                          V.
          Finally, Guerra raises a § 1983 claim against the City under Monell,
   

. “[M]unicipal liability under Section 1983 requires proof of
   three elements: a policymaker; an official policy; and a violation of
   constitutional rights whose ‘moving force’ is the policy or custom.”
   Piotrowski v. City of Hous., 

 (5th Cir. 2001) (citation
   omitted). To be a policymaker, “neither complete discretionary authority
   nor the unreviewability of such authority” is enough; “[t]here must be
   more.” Zarnow v. City of Wichita Falls, 

 (5th Cir. 2010).
          Guerra’s complaint alleges that both Castillo and the City Manager,
   Ozuna, were policymakers. We begin with Castillo.
          Guerra’s complaint states that the City “permit[ed] its Chief of Police
   unrestricted control of the police Department. . . . This abdication of
   authority as expressly set forth in their city charter and as customarily[]
   practiced by the city and its agents, has resulted in a consistent abuse of due
   process to aggrieved individuals such as plaintiff and a deprivation of his right
   to due process under the 4th Amendment . . . and under the Monell
   [s]tandards set forth by the U.S. Supreme Court.” No citation is made to a
   particular part of the city charter.
          In its motion to dismiss below, the City produced parts of the city
   charter to argue that “all powers of the City of Alamo [are] vested in [its]
   Board of Commissioners” and that neither the Chief of Police nor the City
   Manager has policymaking authority. It also argued, in further briefing, that
   Guerra failed to “identify any facts to establish the City ever delegated
   policymaking authority to Castillo.”
          In reply, Guerra reproduced the same parts of the city charter, bolding
   the phrase “[The Board] may pass any ordinances they may desire delegating
   any part of their authority and duties to any other person, offices or




                                          17
Case: 22-40196      Document: 00516886520             Page: 18      Date Filed: 09/07/2023




                                       No. 22-40196


   employee, not inconsistent with the Constitution or laws of the State of
   Texas.” Art. III § 6. But he mentioned no ordinance that delegated that
   authority. Instead, he reproduced a section of the city charter stating, “[t]he
   chief of police shall be the chief administrative officer of the department of
   police,” and “[t]he chief of police shall be responsible for the administration
   of the police department.” Art. IV § 2.
          The above does not allow this court to plausibly infer that Castillo had
   “more” than either “complete discretionary authority []or the
   unreviewability of such authority,” as Zarnow requires. 

.
          Next, Guerra argues that Ozuna, the City Manager, had policymaking
   authority under Monell.8 Guerra’s complaint noted that he was terminated in
   a letter from Ozuna. The complaint also claims that Guerra’s counsel had
   requested an administrative hearing from Ozuna “to discuss the false
   allegations against Plaintiff that had wrongfully resulted in his dismissal[,] but
   the hearing was never provided.”
          Once again, Guerra’s complaint does not identify facts that allow this
   court to plausibly infer that Ozuna had both complete or unreviewable
   discretionary authority and also “more.” See 

 Therefore, we AFFIRM
   the district court’s dismissal of the City under 12(b)(6).
                                            VI.
          We REVERSE the district court’s dismissal of Guerra’s Fourth
   Amendment false arrest claim against Castillo and REMAND for further

          _____________________
          8
              The district court did not consider this argument because Guerra’s complaint
   fails to identify Ozuna as the City Manager, leaving it entirely obscure who the “City
   Manager” might be and what actions he might have taken. We will consider the argument
   because Guerra was dismissed under Rule 12(c) and Guerra’s response brief to Castillo’s
   motion to dismiss identifies Ozuna as the City Manager.




                                             18
Case: 22-40196   Document: 00516886520       Page: 19   Date Filed: 09/07/2023




                              No. 22-40196


   proceedings. We AFFIRM the district court’s judgments in all other
   respects.




                                   19