Shirah v. Falcon et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM CHILDS SHIRAH
VERSUS
LELAND FALCON, ET AL.
*
*
*
CIVIL ACTION
NO. 26-173
SECTION “N” (2)
REPORT AND RECOMMENDATION
Plaintiff William Childs Shirah filed a two-page Complaint in the Middle District of
Louisiana on January 7, 2026. ECF No. 1. After transfer, he filed an Ex Parte Motion for Leave
to Proceed in forma pauperis on March 18, 2026. ECF Nos. 3-4, 15. On March 30, 2026, I granted
Plaintiff’s motion to proceed in forma pauperis and, consistent with the duties imposed by 28
U.S.C. § 1915(a) and (e)(2)(B), ordered summons not be issued until completion of the statutorily
mandated review. ECF No. 16. This Order also required Plaintiff to file a written response setting
forth the specific facts upon which he relies to establish the bases for his claims, in accordance
with § 1915(e)(2). Id. at 14. On April 13, 2026, Plaintiff filed a response. ECF No. 18.
The matter was referred to the undersigned United States Magistrate Judge to submit
proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B),
including frivolousness review under 28 U.S.C. § 1915, in accordance with Local Rule 72.1.
I. 	THE COMPLAINT AND RESPONSE/AMENDED COMPLAINT
Plaintiff William Childs Shirah asserts claims under 42 U.S.C. § 1983 for violations of the
First, Fourth, and Fourteenth Amendments to the U.S. Constitution against two Defendants,
Assumption Parish Deputy Adam Mayon in his official and personal capacities and Assumption
Parish Sheriff Leland Falcon in his official capacity. ECF No. 1. Among other things, Plaintiff
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alleges that, in October 2025, Deputy Mayon falsely arrested and imprisoned him for felony theft
of a phone’s SIM card based on fabricated evidence, detaining him for 23 days. Id. ¶¶ 10-11, 14.
In Plaintiff’s response to the show cause order,1 Plaintiff sought leave to amend “to narrow
[the] claims as specified.” ECF No. 18 at 3. The Court treats the response as an amendment to
his Complaint filed pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure.2 	In
responding to the Court’s discussion of Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v.
Kato, 549 U.S. 384 (2007) (see ECF No. 16 at 7-9), Plaintiff concedes that his October 2025 arrest
resulted in a March 31, 2026, conviction for misdemeanor theft. ECF No. 18 at 1-2.
Plaintiff’s amendment via his response incorporates by reference his false arrest and
imprisonment claims and related allegations against Deputy Mayon,3 whom Plaintiff now sues in
his personal capacity only. 	ECF No. 18 at 1-2. 	He also asserts an excessive force claim and
another false arrest claim arising on a different date against Deputy Mayon. 	See id. at 2-3.
Specifically, Plaintiff asserts that, on January 18, 2025, Deputy Mayon “illegally detained” him
for “non-existent” theft and searched the vessel while Plaintiff retrieved gasoline for his boat. Id.
at 2. Plaintiff alleges that Deputy Mayon drew his taser and threatened to fire it at Plaintiff and
later handcuffed him and denied him dry clothing. Id. at 2. Plaintiff alleges that, while two charges
were filed against him relating to the January 2025 incident, the charges were “favorably
terminated in February 2025,” with one dismissed and the other resolved by payment. Id.
1 The Court ordered Plaintiff to provide a more definite statement setting forth the facts upon which he relies to support
his causes of action. ECF No. 16 at 14. Because the Response amplifies the original allegations, it is “part of th[e]
complaint.” See Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976) (brackets added) (finding in forma pauperis
plaintiff’s answers to a court-ordered questionnaire “an integral part of th[e] complaint” and not “an additional
pleading” in violation of Rule 7(a)).
2 See also Prince v. Curry, 423 F. App’x 447, 451 n.4 (5th Cir. 2011).
3 See New Orleans Ass’n of Cemetery Tour Guides & Cos. v. New Orleans Archdiocesan Cemeteries, 56 F.4th 1026,
1033 (5th Cir. 2023) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless
the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.” (quoting
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam))).
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Plaintiff also asserts a First Amendment retaliation claim against Deputy Mayon based on
a November 22, 2025, visit to Plaintiff’s home. Id. Plaintiff alleges Deputy Mayon parked outside
the residence for less than 10 minutes and stared at Ms. Dupre (his dependent),4 in retaliation for
Plaintiff “seeking evidence for litigation” via public records requests for “911 recordings
documenting prior incidents” involving Deputy Mayon. Id. Plaintiff also asserts an unreasonable
search claim (described as a “pattern”) based on Deputy Mayon’s nonconsensual search of his
vehicle sometime between 2020 and 2021. Id. at 3.
As to Sheriff Falcon, Plaintiff sues him in his official capacity for injunctive and
declaratory relief. Id. at 1. He alleges that he filed two complaints with the Assumption Parish
Sheriff’s Office concerning Deputy Mayon’s “pattern of intimidation, excessive force, and
unlawful conduct,” yet Sheriff Falcon “failed to investigate, discipline, or intervene . . . ,
demonstrating deliberate indifference to a custom of unconstitutional conduct.” 	Id. 	Plaintiff
asserts Sheriff Falcon’s indifference is further demonstrated by Sheriff Falcon’s rehiring Deputy
Mayon after his termination by the preceding sheriff. Id.
II. 	APPLICABLE LAW
A. Statutorily Mandated Review
Section 1915(e)(2)(B) grants the court authority to summarily dismiss in forma pauperis
complaints if the asserted claims are frivolous or malicious or fail to state a claim upon which
relief may be granted.5 Indeed, the statute specifically mandates that the court “sua sponte dismiss
[the case] at any time if it determines that the action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune.”6
4 See ECF No. 1.
5 Tam Vo v. St. Charles Par., No. 10-4624, 2011 WL 743466, at *1-2 (E.D. La. Feb. 3, 2011), R.&R. adopted sub
nom., Vo v. St. Charles Par., No. 10-4264, 2011 WL 740909 (E.D. La. Feb. 22, 2011).
6 Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir. 2018) (emphasis added) (citing § 1915(e)(2)(B)).
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This review mandate applies to both prisoner and non-prisoner in forma pauperis cases.7
A claim is “frivolous where it lacks an arguable basis either in law or in fact.”8 A claim
“lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if
the complaint alleges the violation of a legal interest which clearly does not exist.”9 A court may
not dismiss a claim simply because the facts are “unlikely.”10 A factually frivolous claim alleges
only facts that are “‘clearly baseless,’ . . . are ‘fanciful,’ ‘fantastic,’ and ‘delusional’ . . . [or] rise
to the level of the irrational or wholly incredible, whether or not there are judicially noticeable
facts available to contradict them.”11
A complaint fails to state a claim on which relief may be granted when the factual
allegations do not rise above a speculative level, with the assumption that all factual allegations in
the complaint are true, even if doubtful.12 	The Supreme Court clarified the standard for a Rule
12(b)(6) motion in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). 	To avoid dismissal, a complaint must contain sufficient factual matter to
state a claim to relief that is plausible on its face (i.e., the factual allegations must “be enough to
raise a right to relief above the speculative level”).13 If the “facts” alleged are “merely consistent”
with those minimally required to establish liability, the complaint “stops short of the line between
7 James v. Richardson, 344 F. App’x 982, 983 (5th Cir. 2009) (“Section 1915(e)(2)(B) requires dismissal of frivolous
IFP actions even if those actions are brought by non-prisoner plaintiffs.”); see also Newsome v. EEOC, 301 F.3d 227,
231 (5th Cir. 2002) (applying § 1915(e)(2)(B) to a non-prisoner whose complaint was frivolous).
8 Neitzke v. Williams, 490 U.S. 319, 325 (1989).
9 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
1997)).
10 Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992) (citing Denton v. Hernandez, 504 U.S. 25, 32–33 (1992)).
11 Id. (quoting Denton, 504 U.S. at 32-33).
12 Garrett v. Thaler, 560 F. App’x 375, 377 (5th Cir. 2014) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
13 Twombly, 550 U.S. at 555, 570.
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possibility and plausibility.”14 “Plausibility simply calls for enough factual allegations to raise a
reasonable expectation that discovery will reveal evidence to support the elements of the claim.”15
Although the court must accept all well-pleaded facts as true and consider the complaint in
the light most favorable to the plaintiff, the court does not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”16 	The court may consider not only the
allegations but also any documents attached to the complaint, referenced documents that are
central to the claim, and documents that are part of the public record or subject to judicial notice.17
In comparing a dismissal for failure to state a claim under § 1915(e) and Rule 12(b)(6), the
Supreme Court in Neitzke v. Williams, 490 U.S. 319 (1989), held that a claim that is dismissed
under one rule does not “invariably fall afoul” of the other.18 If an in forma pauperis complaint
lacks even an arguable basis in law, dismissal is appropriate under both Rule 12(b)(6) and
§ 1915(e).19 	“When a complaint raises an arguable question of law which the district court
ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is
appropriate; however, dismissal under [§ 1915(e)’s] frivolousness standard is not.”20
B. Pleading Standard
Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint set forth “sufficient
14 Iqbal, 556 U.S. at 678.
15 Roy v. Cobb, No. 20-0167, 2020 WL 2045791, at *2 (W.D. La. April 7, 2020) (citing Twombly, 550 U.S. at 556).
16 Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted); Gentilello v. Rege, 627 F.3d 540,
544 (5th Cir. 2010) (citation omitted); see also SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n for Lehman Bros. Small
Balance Com. Mortg. Pass-Through Certificates, Series 2007-3, 881 F.3d 933, 943-44 (5th Cir. 2018) (holding
conclusory fraud allegations that the defendant intended plaintiff to act upon representations and plaintiff acted in
reliance on representations insufficient to withstand Rule 12(b)(6) challenge).
17 See, e.g., Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (directing courts to “consider the
complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.”); Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (stating that a court may rely on the complaint,
its proper attachments, documents incorporated by reference, and matters of judicial notice).
18 Moore, 976 F.2d at 269 (quoting Neitzke, 490 U.S. at 326) (citing 28 U.S.C. § 1915(d)) (current version at 28
U.S.C. § 1915(e)).
19 Id.
20 Id.
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facts from which the court can determine the existence of subject matter jurisdiction and from
which the defendants can fairly appreciate the claim made against them.”21 	While Rule 8’s
pleading standard does not require “detailed factual allegations,” it does demand more than an
“unadorned, the-defendant-unlawfully-harmed-me accusation.”22 	Recognizing that documents
filed pro se are “liberally construed,”23 even pro se litigants must satisfy Rule 8 to convince the
court that plaintiff has a colorable claim.24
C. Availability of Amendment
Claims filed by a pro se litigant that fail to state grounds upon which relief can be granted
should generally be dismissed without prejudice, unless the plaintiff has been given adequate
opportunity to cure the deficiencies or if the pleadings demonstrate the plaintiff has pleaded his
best case:25
Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a
pending motion to dismiss for failure to state a claim and an opportunity to amend the
complaint before the motion is ruled upon. These procedures alert him to the legal theory
underlying the defendant's challenge, and enable him meaningfully to respond by opposing
the motion to dismiss on legal grounds or by clarifying his factual allegations so as to
conform with the requirements of a valid legal cause of action.26
Unless it is clear that a plaintiff is unwilling or unable to amend in a manner that will avoid
dismissal, the court errs in not providing a pro se plaintiff with at least one opportunity to cure
pleading deficiencies before dismissing.27 When, however, the “complaint alleges the plaintiff's
21 Kinchen v. Sharp, No. 11-1040, 2012 WL 700920, at *2 (E.D. La. Feb. 10, 2012) (quoting Bremer v. Hous. Auth.
of New Orleans, No. 98-2735, 1999 WL 298795, at *1 (E.D. La. May 12, 1999)), R.&R. adopted, 2012 WL 700265
(E.D. La. Feb. 29, 2012).
22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
23 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 98, 106 (1976)).
24 Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (noting that, although pro se pleadings are treated
more liberally, sufficient facts must be alleged to establish a colorable claim; conclusory allegations do not suffice).
25 James v. Smith, 152 F.4th 594, 610 (5th Cir. 2025) (citing Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415,
423 (5th Cir. 2017) (per curiam) (citations omitted)); Ricks v. Khan, 135 F.4th 296, 300 (5th Cir. 2025).
26 Neitzke, 490 U.S. at 329-30.
27 Dierlam v. Trump, 977 F.3d 471, 478 n.44 (5th Cir. 2020) (quoting Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)); see also Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (cleaned
up); Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020).
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best case,” a further factual statement from the plaintiff need not be allowed.28 Frivolous claims,
however, are generally dismissed with prejudice and without leave to amend because the plaintiff
cannot cure the frivolity.29
D. Claims Under § 1983
Section 1983 creates a damages remedy for the violation of federal constitutional or
statutory rights under color of state law:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . subjects, or causes to be subjected, any . . . person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .30
“The purpose of § 1983 is to deter state actors from using their badge of authority to deprive
individuals of federally guaranteed rights and to provide relief to victims if such deterrence
fails.”31
Generally, a plaintiff must satisfy three elements to establish § 1983 liability:
(1) 	deprivation of a right secured by the U.S. Constitution or federal law;
(2) 	that occurred under color of state law; and
(3) 	was caused by a state actor.32
Because § 1983 merely provides a remedy for designated rights, rather than creating any
substantive rights, “an underlying constitutional or statutory violation is a predicate to liability.”33
This requires the plaintiff to identify both the constitutional violation and the responsible person
28 Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999) (citation omitted).
29 See Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc).
30 42 U.S.C. § 1983.
31 Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)).
32 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).
33 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).
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acting under color of state law. 34 Plaintiff must specify the personal involvement of each defendant
in a cause of action under § 1983.35
Section 1983 claims may be brought against an officer in his personal or official capacity
or against a governmental entity, such as a municipality.36 	An officer’s performance of his
“official duties creates two potential liabilities,” personal-capacity liability for him and official-
capacity liability for the governmental entity that employs him.37 Personal-capacity suits “seek to
impose individual liability upon a government officer for actions taken under color of state law.”38
In other words, a victory in a personal-capacity suit is against the individual defendant and not the
entity that employs him; there is no imposition of liability on the latter.39 “To establish personal
liability in a § 1983 action, it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right.”40 	Official-capacity suits generally represent another
way of pleading an action against an entity of which an officer is an agent.41 	Because the
governmental entity is the real party in interest, “an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.”42 	Thus, “a plaintiff seeking to recover a
damages judgment in an official-capacity suit must look to the government entity itself.” 43
A municipality cannot, however, be held liable in a § 1983 action solely because it employs
the defendant officer.44 	Liability premised on respondeat superior has no basis in the plain
34 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978).
35 See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
36 Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 403 (1997)).
37 Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000).
38 Hafer v. Melo, 502 U.S. 21, 25 (1991).
39 Kentucky v. Graham, 473 U.S. 159, 167-68 (1985).
40 Hafer, 502 U.S. at 25 (citation modified) (quoting Graham, 473 U.S. at 166).
41 Id. (quoting Graham, 473 U.S. at 165 (quoting Monell, 436 U.S. at 690 n.55)).
42 Graham, 473 U.S. at 165 (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)).
43 Id. at 166.
44 E.g., Monell, 436 U.S. at 691.
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meaning of § 1983’s text.45 	Rather, § 1983 requires “the municipality itself cause[ ] the
constitutional violation at issue” through the “execution of the government’s policy or custom” to
be found liable for the officer’s misconduct.46 Thus, a plaintiff must allege the municipality caused
the constitutional violation through its policies or customs (a Monell claim),47 and he may obtain
both monetary and equitable relief.48 The three “essential elements” of a Monell claim are:49 (1) an
official policy; (2) an official policymaker that can be charged with actual or constructive
knowledge of same; and (3) a violation of a constitutional right whose “moving force” is the
policy.50
A plaintiff may establish an “official policy” in three ways,51 two of which are relevant.
First, “a plaintiff can show a widespread practice that is so common and well-settled as to
constitute a custom that fairly represents municipal policy.”52 This practice must be “so persistent
and widespread as to practically have the force of law.”53 There must be a “pattern” of conduct
by the municipality’s employees that has occurred for so long or so frequently that the course of
conduct warrants the attribution to the municipality of knowledge that the objectionable conduct
45 Jason v. Parish of Plaquemines, No. 16-2728, 2017 WL 1045946, at *4 (E.D. La. Mar. 16. 2017) (Vance, J.) (citing
Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)); Verastique v. City of Dallas, 106 F.4th 427, 435-36
(5th Cir. 2024) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Brown, 520 U.S. at
403)); Brown, 520 U.S. at 403 (“We . . . recognized [in Monell] that a municipality may not be held liable under § 1983
solely because it employs a tortfeasor. Our conclusion rested partly on the language of § 1983 itself.”).
46 City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citations omitted); see also Kohler v. Englade, 470 F.3d 1104,
1115 (5th Cir. 2006) (citing Monell, 436 U.S. at 690-91).
47 Kohler, 470 F.3d at 1115 (citing Monell, 436 U.S. at 690-91).
48 Los Angeles County v. Humphries, 562 U.S. 29, 37 (2010) (“Nothing in the text of § 1983 suggests that the causation
requirement contained in the statute should change with the form of relief sought. . . . [A]s Monell explicitly stated,
‘local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where,
as here, the action that is alleged to be unconstitutional implements or executes’ a policy or custom.” (citation
modified) (quoting Monell, 436 U.S. at 690)).
49 Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (en banc); Piotrowski, 237 F.3d at 578.
50 Id. (quoting Piotrowski, 237 F.3d at 578); Pineda, 291 F.3d at 328.
51 Est. of Coates v. Hawthorne, No. 24-40561, 2025 WL 2794278, at *6 (5th Cir. Oct. 1 2025) (per curiam).
52 Id. (citation modified) (quoting Alvarez, 904 F.3d at 390).
53 Verastique, 106 F.4th at 432 (quoting Johnson v. Harris County, 83 F.4th 941, 946 (5th Cir. 2023)); Connick v.
Thompson, 563 U.S. 51, 61 (2011).
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is the expected, accepted practice of its employees.54 A pattern requires “sufficiently numerous
prior incidents,” as opposed to “isolated instances,”55 thus the plaintiff must demonstrate “a pattern
of abuses that transcends the error made in a single case.”56 A pattern also requires “similarity and
specificity; ‘prior indications cannot simply be for any and all bad or unwise acts, but rather must
point to the specific violation in question.’”57 The plaintiff’s description of the challenge practice
“cannot be conclusory”; it must contain similar and specific facts.58
Second, a policymaker’s “single decision . . . may, under certain circumstances, constitute
a policy for which a municipality may be liable.”59 That is “rare,”60 however, because the risk of
municipal liability collapsing into vicarious liability is “high” when it is premised on a single
decision.61 Nonetheless, municipal liability may hinge on a single decision if “undertaken by the
municipal official or entity possessing final policymaking authority for the action in question.”62
To establish the “moving force” element, a plaintiff must show either that the official policy
itself is facially unconstitutional or, if not, that it was adopted with “deliberate indifference” to the
54 Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009) (quoting Webster v. City of Houston, 735 F.2d
838, 842 (5th Cir. 1984) (en banc)).
55 Id. at 851 (quoting McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)).
56 Id. at 850-51 (quoting Piotrowski, 237 F.3d at 582); accord. Johnson, 83 F.4th at 946 (“A plaintiff must do more
than describe the incident that gave rise to his injury.” (citation modified) (quoting Pena v. City of Rio Grande City,
879 F.3d 613, 622 (5th Cir. 2018))).
57 Peterson, 588 F.3d at 851 (citation modified) (quoting Est. of Davis ex rel. McCully v. City of North Richland
Hills, 406 F.3d 375, 383 (5th Cir. 2005)); accord. Johnson, 83 F.4th at 946-47 (citations omitted).
58 Johnson, 83 F.4th at 946 (quoting Pena, 879 F.3d at 622).
59 Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (citation modified) (quoting Brown v. Bryan County, 219
F.3d 450, 462 (5th Cir. 2000)).
60 Webb v. Town of Saint Joseph, 925 F.3d 209, 215 (5th Cir. 2019) (quoting Davidson v. City of Stafford, 848 F.3d
384, 395 (5th Cir. 2017)).
61 See Brown, 520 U.S. at 408-09; see also Pineda, 291 F.3d at 334-35 (“Charged to administer a regime
without respondeat superior, we necessarily have been wary of finding municipal liability on the basis of [single
incident] exception . . . .”).
62 Davidson, 848 F.3d at 395 (citation modified) (quoting Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016));
see Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (“[I]t’s plain that municipal liability may be imposed for
a single decision by municipal policymakers under appropriate circumstances. No one has ever doubted, for instance,
that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body—
whether or not that body had taken similar action in the past or intended to do so in the future—because even a single
decision by such a body unquestionably constitutes an act of official government policy.”).
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known or obvious fact that a specific constitutional violation would follow.63 	Under the latter
framework, the plaintiff must prove there is a “causal link” between the policy and his harm and
that the municipal action was taken with the “requisite degree of culpability,” that is, a complete
disregard of “the risk that a violation of a particular constitutional . . . right would follow the
decision.”64 Deliberate indifference is a high standard—“a showing of simple or even heightened
negligence will not suffice.”65
Deliberate indifference generally requires a demonstration of a sufficient pattern of
constitutional violations like that required to establish a widespread practice.66 Accordingly, it is
difficult for a plaintiff to show same for a Monell claim based on a single decision because
“repetition may be the only thing that puts a policymaker on ‘sufficient notice’ that a constitutional
violation may” result from that decision.67 “To base deliberate indifference on a single incident,
‘it should have been apparent to the policymaker that a constitutional violation was the highly
predictable consequence of a particular policy.’”68
E. Heck v. Humphrey
In Heck, the Supreme Court held that a § 1983 claim seeking damages or release from
custody is barred if success in the suit would necessarily imply the invalidity of an outstanding
criminal 	conviction 	or 	plaintiff's 	present 	confinement.69 	Heck’s 	“favorable-termination”
requirement 70 thus precludes a § 1983 claim seeking relief that would render a conviction or
63 Liggins v. Duncanville, 52 F.4th 953, 955 (5th Cir. 2022) (quoting Webb, 925 F.3d at 219); Edwards v. City of Balch
Springs, 70 F.4th 302, 308 (5th Cir. 2023) (citing cases).
64 Liggins, 52 F.4th at 955 (quoting Brown, 520 U.S. at 404, 411).
65 Valle, 613 F.3d at 542 (quoting Piotrowski, 237 F.3d at 579 (quoting Brown, 520 U.S. at 407)).
66 See Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003); see also Liggins, 956 F.4th at 956.
67 Liggins, 52 F.4th at 956 (quoting Bryan County, 219 F.3d at 460).
68 Alvarez, 904 F.3d at 390 (quoting Burge, 336 F.3d at 373).
69 512 U.S. at 486-87; see also Olivier v. City of Brandon, 607 U.S. 552, 555 (2026) (“Heck prohibits the use of § 1983
to challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages.”).
70 Johnson v. Thibodaux City, 887 F.3d 726, 732 (5th Cir. 2018).
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sentence invalid unless the conviction or sentence has been reversed, expunged, declared invalid
or called into question by issuance of a writ of habeas corpus.71 	This requirement applies
“regardless of whether [the plaintiff] was, is, or never could be in custody.”72
Assessment of a Heck bar thus requires an analytical and fact-intensive analysis as to
whether the factual basis of the conviction is temporally and conceptually distinct from the claim
being brought.73 The court must determine whether success on the claim requires negation of an
element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying
the criminal conviction.74
III. 	ANALYSIS
A. Deputy Mayon
1. 	First Amendment Retaliation
The First Amendment prohibits adverse government action against an individual because
of the exercise of his First Amendment rights.75 	This prevents the government from imposing
serious penalties against someone to stymie or inhibit his exercise of rights in the future.76 To state
a First Amendment retaliation claim, a plaintiff must plausibly allege that: (1) he was engaged in
a constitutionally protected activity, (2) the defendant’s actions caused him to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the
71 Heck, 512 U.S. at 486-87. Heck does not, however, bar a claim for “purely prospective” relief. Olivier, 607 U.S.
at 555.
72 Wilson v. Midland County, 116 F.4th 384, 396 (5th Cir. 2024) (en banc).
73 See, e.g., Clark v. Dep't of Pub. Safety & Corr., 141 F.4th 653, 660 (5th Cir. 2025) (quoting Bush v. Strain, 513
F.3d 492, 498 (5th Cir. 2008)).
74 Aucoin vs. Cupil, 958 F.3d 379, 382 (5th Cir. 2020) (quoting Bush, 513 F.3d at 497).
75 Matherne v. Larpenter, 216 F.3d 1079, 2000 WL 729066, at *3 (5th Cir. 2000) (citing Pickering v. Bd. of Educ. of
Twp. High Sch. Dist. 205, 391 U.S. 563 (1968); Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999)).
76 Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (citing Colson, 174 F.3d at 509-10; Perry v. Sindermann, 408
U.S. 593, 597 (1972)).
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defendant’s adverse actions were substantially motivated against the plaintiff’s exercise of
constitutionally protected conduct.77
Plaintiff asserts Deputy Mayon retaliated against him because he submitted public records
requests to the Assumption Parish Sheriff’s Office seeking “911 recordings documenting prior
incidents” involving the deputy. 	ECF No. 18 at 2. 	Courts are divided on whether the First
Amendment protects the right to request public records,78 distinguishing between a right of access
to government information79 and a right to request government records.80 I need not resolve that
issue, however, because even if the First Amendment protects requesting public records, Plaintiff
fails to allege facts that plausibly establish the second element (i.e., that his exercise of
constitutionally-protected conduct has been curtailed81 ). 	Plaintiff alleges no effect on his
77 Reitz v. Woods, 85 F.4th 780, 789 (5th Cir. 2023) (quoting Keenan, 290 F.3d at 258).
78 For example, compare Entler v. McKenna, No. 11-5081, 2011 WL 4368367, at *4 (W.D. Wash. July 19, 2011)
(“[Plaintiff’s] have no First Amendment right to request public records under [Washington’s Public Records Act]”);
Brennan v. Aston, No. 17-1928, 2019 WL 5225047, at *7 (W.D. Wash. Aug. 16, 2019) (agreeing with Entler);
Rodriguez v. Serna, No. 17-1147, 2019 WL 2340958, at *6 (D.N.M. June 3, 2019) (“The Court concludes that
requesting public records is not a protected activity under the First Amendment”); Werner v. Therien, No. 99-12497,
2005 WL 1000010, at *8 (D. Mass. Mar. 31, 2005); Allen v. Lang, 738 F. App’x 934, 938-39 (10th Cir. 2018) (finding
request for disclosure of public records not protected by the First Amendment), with DeMartini v. Town of Gulf
Stream, 942 F.3d 1277, 1289 (11th Cir. 2019) (“[A] citizen's public records requests and lawsuits against the
government can clearly constitute protected First Amendment activity.”); Sawicki v. Kipphan, No. 21-2031,
2024 WL 197637, at *8 (M.D. Pa. Jan. 18, 2024) (“Accordingly, Sawicki requesting records from the Borough office
is speech protected by the First Amendment.” (relying on DeMartini, 942 F.3d at 1288-89))), aff’d, No. 24-2033,
2025 WL 1261780 (3d Cir. May 1, 2025); Handy-Clay v. City of Memphis, No. 10-2927, 2013 WL 5305239, at *13
(W.D. Tenn. Sept. 19, 2013) (rejecting claim that requesting public records is not a protected activity and collecting
cases holding “that the act of requesting public records is a speech act protected by the First Amendment”); O’Brien
v. Welty, 818 F.3d 920, 933 (9th Cir. 2016) (finding plaintiff “has alleged facts showing that he engaged in speech and
conduct protected by the First Amendment . . . . For example, beginning in fall 2010, O'Brien posted on a website his
opposition to the student government president and the school administration. He also made several public records
requests to Fresno State.”).
79 See Allen, 738 F. App’x at 939; Entler, 2011 WL 4368367, at *3; Brennan, 2019 WL 5225047, at *6; Rodriguez,
2019 WL 2340958, at *6; Werner, 2005 WL 1000010, at *8. A plurality of the Supreme Court has rejected the
assertion that the First Amendment “mandates a right of access to government information.” Houchins v. KQED, Inc.,
438 U.S. 1, 15 (1978).
80 Spithaler v. Smith, 803 F. App’x 826, 829 (6th Cir. 2020) (citing DeMartini, 942 F.3d at 1288-89) (raising the
distinction but not resolving the issue); cf. Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770, 793 (5th Cir.
2024) (“While newsgathering is no doubt critical to a free society, the right to gather news affords no right to
compel others to supply information.” (citing Houchins, 438 U.S. at 11)); Buehler v. City of Austin/Austin Police
Dep’t, No. 13-1100, 2014 WL 12776539, at *6 (W.D. Tex. July 24, 2014) (“[A] private individual has the right to
receive and gather information on matters of public concern to the same extent that a member of the press would have
the right to receive and gather that information.” (citing cases)).
81 Reitz, 85 F.4th at 789 (quoting Kennan, 290 F.3d at 259).
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presumed right to request public records; rather, he alleges that Deputy Mayon stared, and
consequently intimidated, his relative. ECF No. 18 at 2. Even if staring at a relative intimidated
Plaintiff, that is “too trivial or minor” to be a violation of the First Amendment,82 as many courts,
including the Fifth Circuit, have recognized.83 This claim should be dismissed with prejudice for
failure to state a claim.
2. 	Time-Barred § 1983 Claim
There is no federal statute of limitations for actions brought under § 1983, so federal courts
borrow the forum state’s limitations period.84 The statute of limitations for a § 1983 action is a
state’s general or residual personal injury statute of limitations.85 	In Louisiana, former Article
3492 of Louisiana Civil Code’s one-year prescriptive period86 applies to personal injury claims
based on acts that occurred before July 1, 2024.87 	Federal law, however, determines when a cause
of action under § 1983 accrues.88 	And “under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the action.”89 	The claim
82 Keenan, 290 F.3d at 258.
83 See Harmon v. Beaumont Indep. Sch. Dist., No. 12-571, 2014 WL 11498077, at *4 (E.D. Tex. Apr. 7, 2014) (finding
“ominous staring . . . not the sort of conduct that would chill a person of ordinary firmness.” (relying on Keenan, 290
F.3d at 258)), aff’d, 591 F. App’x 292, 292 (5th Cir. 2015) (“[T]he conduct of Defendants . . . that [Plaintiff] alleged
was retaliation did not rise to the level of severity sufficient to chill the speech of a person of ‘ordinary firmness’ . .
. .”); Doe v. City View Indep. Sch. Dist., 736 F. Supp. 3d 458, 467 (N.D. Tex. 2024) (citing Harmon, 2014 WL
11498077, at *4); aff’d sub nom., Doe I v. City View Indep. Sch. Dist., 150 F.4th 668 (5th Cir. 2025); Ogbebor v.
Hardy, No. 24-313, 2025 WL 2046413, at *6 (W.D. La. July 7, 2025) (citing Harmon, 2014 WL 11498077, at *4),
R.&R. adopted, 2025 WL 2046140 (W.D. La. July 21, 2025).
84 Owens v. Okure, 488 U.S. 235, 239, 250-51 (1989).
85 Brown v. Pouncy, 93 F.4th 331, 334 (5th Cir.) (citing Owens, 488 U.S. at 236), cert. denied, 145 S. Ct. 170 (2024).
86 In Louisiana, the limitations period is referred to as the “prescriptive period.” Stanley v. Morgan, 120 F.4th 467,
470 (5th Cir. 2024).
87 In 2024, the Louisiana Legislature extended Louisiana’s one-year statute of limitations, or prescriptive period, for
torts to two years. LA. CIV. CODE art. 3493.1. However, this change has “prospective application only” and applies
only “to delictual actions arising after the [July 1, 2024] effective date of [Act 423].” 2024 La. Sess. Law Serv. Act
423 (H.B. 315). The former one-year prescriptive period under LA. CIV. CODE art. 3492 remains applicable. See
Allied World Nat’l Assurance Co. v. Nisus Corp., 134 F.4th 821, 826 n.3 (5th Cir. 2025) (applying the former Article
3492’s one-year prescriptive period to tort claim arising from facts occurring before July 1, 2024).
88 Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993) (per curiam) (citing Lavellee v. Listi, 611 F.2d 1129, 1130
(5th Cir. 1980)).
89 Smith v. Reg’l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016) (citation modified) (quoting Gartrell, 981 F.2d at
257).
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thus accrues “when the plaintiff is in possession of the ‘critical facts that he has been hurt and who
has inflicted the injury.’”90 This standard applies to unreasonable search claims.91
Regardless of the merits of Plaintiff’s unreasonable search claim against Deputy Mayon
based on the 2020-21 nonconsensual search of his vehicle, the claim is time-barred. 	Plaintiff
alleges that he observed the search between 2020 and 2021, and thus had the critical facts of the
incident at that time. See ECF No. 18 at 3. Plaintiff did not assert this claim until April 13, 2026.
Id. As such, this claim has prescribed and should be dismissed with prejudice for being legally
frivolous and prescribed on its face.92
3. 	Claims Based on October 2025 Arrest
Plaintiff contends Deputy Mayon falsely arrested and imprisoned him for felony theft in
October 2025 based on “fabricated evidence.” ECF No. 1 ¶¶ 10, 14. He alleges the deputy “falsely
claimed a SIM card was removed to create probable cause” when it did not exist to substantiate a
“fabricated . . . felony theft charge” and then arrest him, presumably pursuant to a warrant,93 and
because of that “fabricated charge,” he was detained for 23 days. ECF No. 1 ¶¶ 10-11, 14. Thus,
Plaintiff asserts a Fourth Amendment claim for unreasonable seizure.94
90 Id. (quoting Gartrell, 981 F.2d at 257 (quoting Lavellee, 611 F.2d at 1130)).
91 See Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994).
92 Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993) (holding that dismissal with prejudice without leave to amend
is proper when claims are subject to an obvious meritorious defense, such as a peremptory time bar), overruled in part
on other grounds, Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994); Pham v. Unidentified DEA Agent, No. 22-292,
2022 WL 1008239, at *2 (E.D. La. Mar. 14, 2022) (citing Brown v. Pool, 79 F. App'x 15, 17 (5th Cir. 2003); Gonzales
v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998); Payton v. Normand, No. 21-1325, 2022 WL 412720 (E.D. La. Jan.
21, 2022), R.&R. adopted, 2022 WL 393628 (E.D. La. Feb. 9, 2022) (Vance, J.) (dismissing Section 1983 complaint
under 28 U.S.C. § 1915(e) as legally frivolous because the claims were time-barred)), R.&R. adopted, 2022 WL
1001452 (E.D. La. Apr. 4, 2022).
93 See LA. CODE CRIM. P ROC . art. 203(4).
94 See Manuel v. City of Joliet, 580 U.S. 357, 362, 268 (2017) (holding plaintiff alleged Fourth Amendment violations
for his arrest and detention by alleging he was arrested “without any reason” and detained for several weeks “based
entirely on made-up evidence”).
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Under the common law, the torts of false arrest and false imprisonment “overlap; the
former is a species of the latter.”95 A false imprisonment claim “is based upon ‘detention without
legal process.’”96 	“An arrest warrant . . . is a way of initiating legal process,”97 so an unlawful
arrest and subsequent imprisonment “pursuant to a warrant” is not detention without legal process
that can give rise to the torts of false arrest and false imprisonment.98 	Rather, that scenario
describes detention accompanied by “wrongful institution of legal process,” which is the basis for
the tort of malicious prosecution.99 	Plaintiff’s Fourth Amendment claims are analogous to a
common law malicious prosecution claim,100 and he may assert a malicious prosecution claim
based on violation of the Fourth Amendment under § 1983.101 	Thus, the Court treats his false
arrest and false imprisonment claims based on the October 2025 arrest and subsequent
imprisonment as § 1983 malicious prosecution claims.
To state a § 1983 malicious prosecution claim, a plaintiff must plausibly allege:
(1) the commencement or continuance of an original criminal proceeding; (2) its
legal causation by the present defendant against plaintiff who was defendant in the
original proceeding; (3) its bona fide termination in favor of the present plaintiff;
(4) the absence of probable cause for such proceeding; (5) malice; and (6)
damages.102
95 Wallace, 549 U.S. at 388; see Whirl v. Kern, 407 F.2d 781, 790 (5th Cir. 1968).
96 Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018) (quoting Wallace, 549 U.S. at 389). In Wallace, the Supreme
Court reviewed common law false arrest and false imprisonment claims “together as false imprisonment.” 549 U.S.
at 389.
97 Manuel, 580 U.S. at 367 n.6.
98 Winfrey, 901 F.3d at 493 (emphasis in original).
99 Id. at 492 (emphasis in original) (quoting Wallace, 549 U.S. at 390); see Heck, 512 U.S. at 484.
100 See Winfrey, 901 F.3d at 492-93 (holding plaintiff’s Fourth Amendment claim “that he was wrongly arrested due
to knowing or reckless misstatements and omissions in [deputy’s] affidavits” for arrest warrants analogous to tort of
malicious prosecution rather than false imprisonment).
101 Thompson v. Clark, 596 U.S. 36, 42 (2022) (“[Plaintiff] brought a Fourth Amendment claim under § 1983 for
malicious prosecution, sometimes referred to as a claim for unreasonable seizure pursuant to legal process. This
Court’s precedents recognize such a claim.” (citing Manuel, 580 U.S. at 363-64; Albright v. Oliver, 510 U.S. 266, 271
(1994) (plurality opinion))); see id. (“[Courts] have decided numerous cases involving Fourth Amendment claims
under § 1983 for malicious prosecution.” (citing, inter alia, Winfrey, 901 F.3d 491-93)).
102 Davis v. Warren, 173 F.4th 566, 572 (5th Cir. 2026) (quoting Armstrong v. Ashley, 60 F.4th 262, 279 (5th Cir.
2023) (citing Gordy v. Burns, 294 F.3d 722, 725 (5th Cir. 2002))).
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There is also an additional “threshold element of an unlawful Fourth Amendment seizure.”103
A malicious prosecution claim challenges the existence of probable cause and thus is
essentially a collateral attack on a criminal judgment’s validity that runs afoul of Heck.104 Plaintiff
does not deny that the alleged “fabricated” charge resulted in a state court conviction for
misdemeanor theft, and that he has appealed that conviction. ECF No. 18 at 1-2. Plaintiff does
not allege any favorable termination, which means he fails to state a claim. Regardless, Plaintiff’s
malicious prosecution claims are Heck barred, and as such, are frivolous105 and should be
dismissed with prejudice to their being asserted again until the Heck conditions are met.106
4. 	Claims Based on January 2025 Arrest
Plaintiff also asserts false arrest and excessive force claims against Deputy Mayon based
on a January 18, 2025, arrest. ECF No. 18 at 2. Plaintiff indicates that two unspecified charges
were brought against him arising from this incident but contends his claims do not implicate Heck
because the proceedings were “favorably terminated” in February 2025—“one charge dismissed,
one resolved by payment.” Id.
a. 	Heck’s Applicability
Under Heck, courts “must first consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence.”107 State criminal law and procedure
supply the necessary components of a “Heck triggering” conviction or proceeding.108 In Louisiana,
103 Armstrong, 60 F.4th at 279 (citing Thompson, 596 U.S. at 43 n.2).
104 Cormier v. Lafayette City-Par. Consol. Gov’t, 493 F. App’x 578, 583 (5th Cir. 2012) (citing Wells v. Bonner, 43
F.3d 90, 95 (5th Cir. 1995); and quoting Connors v. Graves, 538 F.3d 373, 378 (5th Cir. 2008)).
105 Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule in Heck is legally
frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into
question.” (citing Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994)).
106 See Cook v. City of Tyler, 974 F.3d 537, 539 (5th Cir. 2020) (per curiam).
107 DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 (5th Cir. 2007) (alteration in original) (quoting Hainze v.
Richards, 207 F.3d 795, 798 (5th Cir. 2000)).
108 Kleinman v. City of Cedar Park, 162 F.4th 549, 554 (5th Cir. 2025).
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a sentence is the penalty imposed by the court on a defendant upon a plea, verdict, or judgment of
guilty or a plea of nolo contendre.109 By resolution of a charge “by payment,” the Court presumes
Plaintiff paid a fine as his sentence for the charge. Even if Plaintiff pled guilty or nolo contendre,
either plea yields a conviction under state law, implicating Heck. 110
Setting aside its applicability for that conviction, the alleged dismissal of the other charge
does not place Plaintiff beyond Heck. 	Even a plaintiff entering a pretrial diversion program in
exchange for a conditional dismissal of a charge is not a favorable determination for Heck purposes
because, while not a guilty plea, there is an acknowledgement of responsibility for the actions.111
Plaintiff does not specify whether the alleged dismissal was subject to any conditions, such as a
pretrial diversion program or otherwise, yet same can result in a Heck bar. 112
Plaintiff’s ambiguous pleading that fails to even identify the charges does not provide
sufficient information to determine whether Heck bars the claims. To avoid a Heck bar, a plaintiff
has two hurdles. He must show the factual basis for his conviction is “temporally and conceptually
distinct” from the claim being brought.113 Additionally, his allegations “must be consistent ‘with
the facts actually or necessarily adjudicated adversely to [him] in the criminal proceeding[ ]’”
because a claim will still be Heck-barred “despite its theoretical compatibility with the underlying
convictions if specific factual allegations in the complaint are necessarily inconsistent with the
109 LA. CODE CRIM. P ROC . arts. 552(4), 871(A).
110 See Johnson, 887 F.3d at 732 (“[Plaintiff’s] no-contest plea is considered a conviction under Louisiana law.” (citing
LA. CODE CRIM. P ROC . art. 552(4)); Connors, 538 F.3d at 377-78 (finding § 1983 claims barred by Heck (citing State
v. Thornton, 521 So. 2d 598, 600 (La. App. 1 Cir. 1988) (guilty plea is a conviction under Louisiana law))).
111 Morrison v. Mekdessie, 768 F. App’x 299, 301-02 (5th Cir. 2019) (quoting Taylor v. Gregg, 36 F.3d 453, 455-56
(5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc)); see
also Ray v. Recovery HealthCare Corp., No. 22-10303, 2022 WL 16945898, at *1 (5th Cir. Nov. 15, 2022) (discussing
Morrison with approval).
112 See Morrison, 768 F. App’x at 301-02.
113 Clark, 141 F.4th at 660 (quoting Bush, 513 F.3d at 498).
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validity of the conviction.”114 	Without clarity on the two charges, the Court cannot determine
whether Plaintiff clears the Heck hurdles.
b. 	False Arrest and Excessive Force
Under the Fourth Amendment, warrantless searches and seizures are per se unreasonable
unless one of the recognized exceptions applies.115 Arrests are “seizures” of “persons.”116 But an
officer may arrest a person if there is “probable cause” that the person committed a crime in the
officer's presence,117 regardless of how minor the crime.118 A § 1983 claim for false arrest thus
requires a plaintiff to demonstrate that he was arrested without probable cause.119 	Plaintiff’s
conclusory allegation that Deputy Mayon “illegally detained him for [the] non-existent crime of
theft” is insufficient to state a false arrest claim.120 The claim should be dismissed with prejudice
for failure to state a claim.
Plaintiff’s excessive force claim is premised on his decision to move into the cold water
when Deputy Mayon allegedly threatened to employ a taser, and later being denied dry clothes for
over an hour. ECF No. 18 at 2. To state a Fourth Amendment excessive force claim, a plaintiff
must allege that he suffered (1) injury, (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.121 The test
114 Sampy v. Rabb, 144 F.4th 796, 799 (5th Cir. 2025) (quoting Bush, 513 F.3d at 498 & n.14).
115 United States v. Thomas, 997 F.3d 603, 609 (5th Cir. 2021) (citing Cotropia v. Chapman, 978 F.3d 282, 286 (5th
Cir. 2020)).
116 District of Columbia v. Wesby, 583 U.S. 48, 56 (2018).
117 Wesby, 583 U.S. at 56.
118 See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.”).
119 Defrates v. Podany, 789 F. App'x 427, 431 (5th Cir. 2019) (“The Fourth Amendment protects citizens from false
arrests—that is, arrests unsupported by probable cause.” (citing Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th
Cir. 2009))); Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (quoting Haggerty v. Tex. S. Univ., 391 F.3d 653,
655 (5th Cir. 2004)).
120 See supra text accompanying notes 12-16.
121 Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 312 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430,
433-34 (5th Cir. 1996)).
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for reasonableness for the use of force is “not capable of precise definition or mechanical
application,”122 but is “firmly rooted in a singular perspective: that of what an officer would
reasonably know, believe, and do in similar circumstances.”123 The court must assess actions from
the objective view “of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” asking “whether a reasonable officer in the same circumstances would have concluded
that a threat existed justifying the particular use of force.”124
“A constitutional violation does not occur every time an officer touches someone.”125 “Not
every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,
violates the Fourth Amendment.”126 Three factors are considered when determining whether force
was excessive or unreasonable: (1) the severity of the crime at issue; (2) whether the suspect poses
an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.127 “When the force used is insufficient to
satisfy the legal standard necessary for recovery, the amount of force is de minimis for
constitutional purposes.” 128
Thus, the extent of injury necessary to satisfy the injury requirement is directly related to
the amount of force that is constitutionally permissible under the circumstances.129 While “a de
122 Tuttle v. Gallegos, No. 25-20132, 2026 WL 1861047, at *9 (5th Cir. June 29, 2026) (quoting Trammell v. Fruge,
868 F.3d 332, 340 (5th Cir. 2017) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))); see also Poole v. City of
Shreveport, 691 F.3d 624, 627-28 (5th Cir. 2012) (quoting Graham, 490 U.S. at 396).
123 Searles v. City of Houston, No. 25-20383, 2026 WL 1982559, at *6 (5th Cir. July 9, 2026) (citing Harmon v. City
of Arlington, 16 F.4th 1159, 1166 (5th Cir. 2021)).
124 Tuttle, 2026 WL 1861047, at *9 (quoting Graham, 490 U.S. at 396; Roque v. Harvel, 993 F.3d 325, 333 (5th Cir.
2021)).
125 Carter v. Dupuy, 173 F.4th 561, 564 (5th Cir. 2026) (citation modified) (quoting Ikerd, 101 F.3d at 434).
126 Id. (quoting Graham, 490 U.S. at 396).
127 Tuttle, 2026 WL 1861047, at *9 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam)
(quoting Graham, 490 U.S. at 396)).
128 Carter, 173 F.4th at 564 (quoting Ikerd, 101 F.3d at 434) (finding that 4-second grasp of plaintiff’s arm, attempting
to drag her a few inches through the office doorway, and briefly pushing her through the doorway constituted de
minimis injury).
129 Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (citation modified) (quoting Brown v. Lynch,
524 F. App’x 69, 79 (5th Cir. 2013) (quoting Ikerd, 101 F.3d at 434-35)).
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minimis injury is not cognizable,”130 “any force found to be objectively unreasonable necessarily
exceeds the de minimis threshold, and, conversely, objectively reasonable force will result in de
minimis injuries only.”131 Thus, the “only one inquiry required” to determine whether an officer
employed excessive force in violation of the Fourth Amendment is whether plaintiff has suffered
“some injury . . . resulting from an officer’s unreasonably excessive force.”132
Although “relatively insignificant injuries and purely psychological injuries” can be
cognizable depending on the circumstances,133 a plaintiff must show that he suffered at least some
injury.134 But Plaintiff does not allege any injury whatsoever. Indeed, Plaintiff does not allege
that Deputy Mayon pushed, shoved or touched him at all. 	Rather, he alleges only that Deputy
Mayon threatened to tase him, after which he went into the cold water and was not given dry
clothes for over an hour.135 These allegations fail to amount to excessive force in violation of the
Fourth Amendment.136 This claim should be dismissed with prejudice for failure to state a claim.
B. Sheriff Falcon
Plaintiff asserts Monell claims against Sheriff Falcon in his official capacity based on
130 Id. (quoting Brown, 524 F. App’x at 79).
131 Id. (quoting same); see also Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022) (“[a]ny force found to be objectively
unreasonable necessarily exceeds the de minimis threshold.” (quoting Alexander, 854 F.3d at 309).
132 Alexander, 854 F.3d 298, 309 (quoting Ikerd, 101 F.3d at 434 n.9; Brown, 524 F. App’x at 79).
133 Id. (quoting Brown, 524 F. App’x at 79); see also Bailey v. Ramos, 125 F.4th 667, 680 (5th Cir. 2025) (citing
Alexander, 854 F.3d at 309).
134 Flores v. City of Palacios, 381 F.3d 391, 397 (5th Cir. 2004) (quoting Jackson v. R.E. Culbertson, 984 F.2d 699,
700 (5th Cir. 1993)).
135 Cf. Juarez v. Pizana, No. 17-368, 2018 WL 7198152, at *7 (W.D. Tex. Dec. 12, 2018) (rejecting excessive force
claim based on being exposed to cold for relatively brief period (citing Glenn v. City of Tyler, 242 F.3d 307, 314 (5th
Cir. 2001)).
136 Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (stating that threatening language does not amount to a
constitutional violation); see also Woods v. Holloway, No. 25-1098, 2025 WL 2023789, at *3 (S.D. Tex. July 18,
2025) (rejecting excessive force claim based on psychological injuries allegedly resulting from officer’s threats (citing
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)); Asuelime v. City of Dall. Police Dep't, No. 23-1125, 2025
WL 96535, at *2 (N.D. Tex. Jan. 14, 2025) (adopting recommendation to dismiss excessive force claim premised
verbal threat to tase plaintiff); Collier v. City of Bossier City, No. 05-0795, 2007 WL 734737, at *7 (W.D. La. Mar. 6,
2007) (citing Fifth Circuit precedent holding threats by police do not amount to constitutional violations).
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failure to investigate/discipline137 or intervene and the single decision to rehire Deputy Mayon.
ECF No. 18 at 1. Plaintiff asserts that he filed two complaints with the Assumption Parish Sheriff’s
Office regarding “Deputy Mayon’s pattern of intimidation, excessive force, and unlawful
conduct,” yet Sheriff Falcon failed to investigate/discipline or intervene, demonstrating “deliberate
indifference to a custom of unconstitutional conduct.” 	ECF No. 18 at 1. 	Plaintiff additionally
alleges Sheriff Falcon rehired Deputy Mayon after the prior sheriff terminated the deputy, which
plaintiff contends demonstrates Sheriff’s Falcon’s knowledge of Deputy Mayon’s “propensity for
misconduct and deliberate indifference to the risk posed to citizens.” Id.
Louisiana does not distinguish between a Louisiana sheriff in his official capacity and his
office, with the former being the proper party for any claim.138 In other words, a Louisiana sheriff
in his official capacity is the appropriate governmental entity for any violations allegedly
committed by his office. 139 	Therefore, Sheriff Falcon is the relevant governmental entity for
Plaintiff’s Monell claims, and he is the final policymaker.140
1. 	Failure to Intervene
A § 1983 claim based on a failure to intervene is a claim for “bystander liability.”141 To
state a claim, plaintiff must plausibly allege an officer “(1) knows that a fellow officer is violating
137 See Piotrowski, 237 F.3d at 581-82 (construing alleged municipal policy of “failure to investigate and discipline”
as a “failure to discipline” claim); Jones v. Martin, No. 25-707, 2026 WL 1507704, at *3 (N.D. Tex. May 29, 2026)
(treating “failure to investigate or discipline” as one claim).
138 See La. ex rel. Div. of Admin. v. I3 Verticals, L.L.C., 81 F.4th 483, 488 (5th Cir. 2023) (“[A] sheriff’s office has no
status independent from that of the sheriff himself. Accordingly, when a sheriff’s office is listed as a defendant,
Louisiana courts either dismiss claims against the sheriff’s office, or they substitute the sheriff as the correct
defendant.” (citing Edminston v. La. Small Bus. Dev. Ctr., 931 F.3d 403, 407 (5th Cir. 2019) (“Louisiana sheriffs are
juridical entities that can be sued, but Louisiana sheriff’s offices are not.”))).
139 Carpenter v. Webre, No. 17-808, 2018 WL 1453201, at *6 (E.D. La. Mar. 23, 2018) (Morgan, J.) (citing Winfrey
v. San Jacinto County, 481 F. App’x 969, 976 (5th Cir. 2012); Jenkins v. Jefferson Par. Sheriff’s Off., 402 So. 2d 669,
671 (La. 1981)).
140 Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750-51 (5th Cir. 2023) (“In Louisiana, the sheriff is the final
policymaker.” (citing LA. CONST. art. 5, § 27 (“[The sheriff] shall be the chief law enforcement officer in the
parish.”); LA. REV. S TAT. § 13:5539 (“Each sheriff . . . shall preserve the peace and apprehend public offenders.”);
Craig v. St. Martin Par. Sheriff, 861 F. Supp. 1290, 1300 (W.D. La. 1994))).
141 Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013)
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an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act.”142 Bystander liability “will not attach where an officer is not present at the
scene of the constitutional violation.”143
Plaintiff’s bystander liability claim against Sheriff Falcon fails because he does not allege
that Sheriff Falcon was present at the scene of any alleged constitution violation. The claim should
be dismissed with prejudice for failure to state a claim.
2. 	Failure to Discipline
Plaintiff rests his failure-to-discipline claim on a pattern, but a pattern “requires similarity,
specificity, and sufficiently numerous prior events.”144 	A vague reference to alleged “unlawful
conduct” is not sufficiently specific to establish a prior event,145 and Plaintiff has failed to plausibly
allege constitutional violations by Deputy Mayon. Without an underlying constitutional violation,
Plaintiff’s claim fails.146 Further, Plaintiff’s referenced two events (stare and threat to tase) are not
sufficiently similar or numerous to state a claim. This claim should be dismissed with prejudice
for failure to state a claim.
3. 	Single Decision to Rehire
A policymaker’s single decision may, under certain circumstances, constitute a policy for
which a municipality may be liable.147 In the hiring context, a plaintiff must show “(1) the hiring
decision was made by a final policymaker, and (2) a ‘plainly obvious consequence of the decision’
142 Id. (citations omitted).
143 Id.
144 Davidson, 843 F.3d at 396 (citing Peterson, 588 F.3d at 850).
145 See Peterson, 588 F.3d at 851
146 Cope v. Coleman County, No. 23-10414, 2024 WL 3177781, at *3 (5th Cir. June 26, 2024) (quoting Doe ex rel.
Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866-67 (5th Cir. 2012) (en banc)) (“For example,
in [City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)], the Supreme Court held that a county could not be liable
under § 1983 based on the actions of one of its police officers because a jury had already concluded that the police
officer did not inflict any constitutional harm.”).
147 Valle, 613 F.3d at 542 (citation modified) (quoting Brown, 219 F.3d at 462).
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is a constitutional violation.”148
Plaintiff alleges Sherrif Falcon rehired Deputy Mayon, but he fails to allege facts
demonstrating a strong connection between Deputy Mayon’s background and the specific violation
alleged such that he “was likely to inflict the particular type of injury suffered.”149 Indeed, Plaintiff
does not allege what specific constitutional violation by Deputy Mayon was an obvious
consequence of Sheriff Falcon’s decision to rehire him. Nor has he plausibly alleged constitutional
violations for any of his claims against Deputy Mayon. Even if he had, Plaintiff fails to allege that
Deputy Mayon’s earlier termination was for any similar misconduct.150 He then has not alleged
facts demonstrating the requisite strong connection.151 	The claim should be dismissed with
prejudice for failure to state a claim.
IV. 	RECOMMENDATION
Accordingly, for the foregoing reasons,
IT IS RECOMMENDED that Plaintiff William Child Shirah’s First Amendment
retaliation, excessive force, and unreasonable search claims against Assumption Parish Sheriff
Deputy Adam Mayon and failure-to-discipline claim against Assumption Parish Sheriff Leland
Falcon be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2) for being legally
frivolous and/or for failure to state a claim.
IT IS FURTHER RECOMMENDED that Plaintiff’s malicious prosecution claims
against Deputy Mayon be DISMISSED WITH PREJUDICE to their being asserted again until
148 Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 366 (5th Cir. 2020) (quoting Brown, 520 U.S. at 411; and citing
Livezey v. City of Malakoff, 657 F. App’x 274, 277 (5th Cir. 2016) (per curiam)).
149 Id. at 366-67 (quoting Rivera v. Bonner, 952 F.3d 560, 565 (5th Cir. 2017) (quoting Gros v. City of Grand Prairie,
209 F.3d 431, 434 (5th Cir. 2000)).
150 See Loera v. Kingsville Indep. Sch. Dist., 151 F.4th 813, 819-20 (5th Cir. 2025).
151 See Edgewood, 151 F.4th at 367 (“The information about Hernandez reviewed at the time of hiring simply does
not show the requisite “strong connection” between an arrest in 1983 for official oppression and sexual abuse thirty
years later—especially when viewed in light of existing caselaw.”).
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the Heck conditions are met pursuant to § 1915(e)(2) for being legally frivolous.
IT IS FURTHER RECOMMENDED that Plaintiff’s false arrest claim against Deputy
Mayon and bystander liability and single decision claims against Sheriff Falcon be DISMISSED
WITH PREJUDICE pursuant to § 1915(e)(2) for failure to state a claim but with leave to amend
to allow Plaintiff an opportunity to amend those claims. 	Additionally, should Plaintiff opt to
amend his false arrest claim related to the January 18, 2025, arrest, he must clarify (1) the specific
charge for which he paid a fine and (2) the specific charge dismissed and any conditions he must
fulfill in exchange for that dismissal.
IT IS FURTHER RECOMMENDED that, in light of Plaintiff’s pro se status, he be
granted leave to file an Amended Complaint alleging facts necessary to overcome the deficiencies
identified herein within 21 days of this Report and Recommendation.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
the district court, provided that the party has been served with notice that such consequences will
result from a failure to object.152
New Orleans, Louisiana, this ____ day of July, 2026.
___________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
152 Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir. 1996). Douglass referenced the previously
applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended
to extend the period to fourteen days.
21st
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