Clark v. Thompson

Case: 20-10568 Document: 00515772447 Page: 1 Date Filed: 03/09/2021

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
March 9, 2021
No. 20-10568 Lyle W. Cayce
Clerk

John Barto Clark,

Plaintiff—Appellant,

versus

Robert Clint Thompson; City of Burleson, Texas; Louis
Michael Giddings,

Defendants—Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2126

Before Jones, Clement and Graves, Circuit Judges.
Per Curiam:*
John Clark alleged that Officers Robert Thompson and Louis
Giddings of the Burleson Police Department took him into custody or
participated in taking him into custody for mental health evaluations without
probable cause on two separate occasions. The district court dismissed

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-10568

Clark’s claims, holding that his allegations did not show that Thompson and
Giddings lacked probable cause, and Clark appealed. We AFFIRM.
FACTS AND PROCEEDINGS
Clark alleges that he was arrested and transported to a hospital for
mental health evaluations on two occasions, both without probable cause.
Because the district court dismissed pursuant to Rule 12(b)(6), at which stage
Clark’s factual allegations must be presumed to be true, the factual
allegations that follow are taken from Clark’s First Amended Complaint.
Clark lives in Burleson, Texas, which borders Fort Worth. On
September 6, 2017, while Clark was staying in a hotel room in Fort Worth,
Thompson, Giddings, and a number of Fort Worth police officers entered his
hotel room without a warrant. They searched his belongings and found pills,
which Clark identified for the officers. The Fort Worth officers informed
Clark that they had been told by Thompson that Clark had threatened to
commit suicide, so they transported Clark to John Peter Smith Hospital for
evaluation. He was released the next day.
On October 10, 2017, Thompson and Giddings allegedly entered
Clark’s home without a warrant and found Clark in his bedroom. Thompson
claimed that “Clark had threatened that he was suicidal.” He searched
Clark’s room and again located pills. Thompson claimed to have
“information that Clark had swallowed a handful of pills.” Although Clark
allegedly clarified that he had taken only the prescribed amount of
medication, Thompson once again transported him to John Peter Smith
Hospital for evaluation. Giddings was allegedly present and helped
Thompson to seize and transport Clark. Clark was again released the
following day.
Clark alleges that both arrests were orchestrated by his (then) spouse,
Christi Clark, who was planning to divorce him. He alleges that she owned a

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hair salon frequented by Thompson and Giddings, and had developed
personal and—allegedly—intimate relationships with both officers. Because
Christi Clark did not want to share custody of their young son, she allegedly
devised a scheme to cause Clark to appear mentally unfit to have custody by
manipulating the Burleson Police Department into detaining Clark for
involuntary mental health evaluations. She allegedly used her relationships
with Thompson and Giddings to accomplish this scheme.
Following unsuccessful efforts to criminally charge Thompson and
Giddings for their actions and to file complaints with their supervisors, Clark
brought this lawsuit in the Northern District of Texas under 42 U.S.C. § 1983
against Thompson, Giddings, and the City of Burleson. He alleged causes of
action against the officers for false arrest and excessive force. He also alleged
that the City had adopted a policy of systematically permitting its officers to
violate citizens’ constitutional rights on behalf of friends and romantic
partners and that it had failed to adequately train its officers. Clark pointed
to fifty-five administrative complaints and twenty-seven Internal Affairs
complaints and the failure of the City to take effective action against
Thompson and Giddings (or Christi Clark) as evidence that the custom was
so widespread as to constitute an unofficial policy.
The City and officers filed separate motions to dismiss under Rule
12(b)(6) for failure to state a claim, with the officers invoking qualified
immunity. The district court granted the motions, finding that Giddings and
Thompson had probable cause to apprehend Clark for mental health
evaluations under the Texas public health statute. See Tex. Health &
Safety Code § 573.001. The district court held that Clark had failed to
allege any injury, so his excessive force claim must be dismissed. Finally,
because Clark had not properly alleged a policy or custom, nor any facts
regarding failure to train beyond “boilerplate accusations devoid of any
factual specificity,” the court dismissed his claims against the City.

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Clark timely appealed, arguing that the district court had assumed
facts not alleged in his complaint to conclude that the officers had probable
cause to apprehend him. He also argues that his allegations against the City
were sufficient to unlock the doors to discovery so that he could provide a
more fulsome showing of a custom of permitting officers to do
unconstitutional favors for friends and romantic partners. Clark does not,
however, brief his dismissed excessive force claim in any way. As such, we
assume that he does not appeal the district court’s dismissal of this claim. 1
STANDARD OF REVIEW
“We review a district court’s order granting a motion to dismiss for
failure to state a claim” under Rule 12(b)(6) de novo, viewing all “well-
pleaded facts in the light most favorable to the nonmoving party.” Calogero
v. Shows, Cali & Walsh, L.L.P., 970 F.3d 576, 580 (5th Cir. 2020). Federal
Rule of Civil Procedure 8 requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter which, when taken as true, states ‘a claim to relief that is plausible on
its face.’” Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga.,
Inc., 892 F.3d 719, 726 (5th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not

1
If Clark intended to appeal as to all claims, then his failure to brief instead
constitutes a waiver of this issue. See Hous. Pro. Towing Ass’n v. City of Hous., 812 F.3d 443,
446 n.2 (5th Cir. 2016); Fed. R. App. P. 28(a)(8)(A).

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‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.
R. Civ. P. 8(a)(2)).
DISCUSSION
Clark argues on appeal that the district court erred in accepting
defendants’ claim that the officers had received a report that Clark was
suicidal. Instead, Clark argues, he had only alleged in his complaint that the
officers claimed to have received such a report—Clark never alleged that they
actually had received a report that he was suicidal. Because our factual
universe at the pleading stage “is bounded by the four corners of the
complaint,” Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir. 2011) (en banc),
Clark argues that this factual leap was an error sufficient to require reversal.
Furthermore, Clark argues that he had adequately alleged a total of eighty-
two complaints against the City, at least some of which were likely to be
factually similar to his own situation, and which would show a custom of such
magnitude as to constitute a City policy for purposes of municipal liability.
The defendants respond (1) that the officers had probable cause to
detain Clark, (2) that—even if his rights had been violated—he has not
alleged any facts to show that a custom or policy of the City caused the
constitutional violation, and (3) that, regardless of whether there was
probable cause, claims against Giddings are barred by the statute of
limitations.
A.
We begin by addressing Giddings’s statute of limitations argument.
Clark’s original complaint named only Thompson and the City. Clark first
named Giddings as a defendant in his First Amended Complaint, filed on
October 29, 2019—more than two years after the second of the two incidents.
“Because there is no federal statute of limitations for § 1983 claims, district
courts use the forum state’s personal injury limitations period,” Moore v.

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McDonald, 30 F.3d 616, 620 (5th Cir. 1994), which, in Texas, is two years,
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Thus, Giddings
argues, Clark’s claims against him are time-barred.
The district court did not address this argument, and Clark argues that
we should decline to do so as well. However, we “may affirm a district
court’s order dismissing a claim under Rule 12(b)(6) ‘on any basis supported
by the record,’” so long as the grounds for dismissal were fairly raised below.
Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015) (quoting Asadi
v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013)); see also
Bhandari v. Maverick Tube, 763 F. App’x 359, 361 n.1 (5th Cir. 2019) (per
curiam) (“[W]e may . . . affirm on any ground supported by the record and
presented by the parties below.”). Giddings raised his statute of limitations
argument below, and Clark had the opportunity to respond (and did so).
Clark’s argument to the district court, that Giddings knew or should have
known that he could be sued based solely on his allegedly unlawful conduct,
is meritless.
Federal Rule of Civil Procedure 15(c) requires that a party to be
brought in by amendment “knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s
identity.” The purpose of the rule is to permit a plaintiff who was merely
mistaken about a party’s identity “to correct a formal defect such as a
misnomer or misidentification” where it would not cause injustice to the
substituted defendant. Fed. R. Civ. P. 15(c)(1) advisory committee’s note
to the 1991 amendment. Where there is no mistake, such as where a “John
Doe” is named because the actual identity of the intended defendant is
unknown, “relation back should not be allowed.” Jacobsen v. Osborne, 133
F.3d 315, 320 (5th Cir. 1998).

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Here, Clark did not even bother to name a “John Doe” in Giddings’s
place—he simply declined to sue the second officer whom he claims was
present during the two incidents until after the two-year statute of limitations
had elapsed. A plaintiff may not sit on his claims beyond the statute of
limitations, and then argue that the unlawfulness of the proposed defendant’s
actions is sufficient to overcome the defendant’s interest in repose (as
codified by the legislature’s statute of limitations). Giddings’s statute of
limitations defense is enough for us to affirm the district court’s dismissal of
all claims against him; we need not examine his alleged conduct any further.
B.
We turn next to Clark’s claims against the City. As a municipal entity,
the City “cannot be held liable under § 1983 on a respondeat superior theory,”
but can be liable if “action pursuant to official municipal policy of some
nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978). Thus, a plaintiff seeking to hold a city liable “must show that
(1) an official policy (2) promulgated by the municipal policymaker (3) was
the moving force behind the violation of a constitutional right.” Peña v. City
of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018) (quoting Hicks-Field v.
Harris Cnty., 860 F.3d 803, 808 (5th Cir. 2017)). “Official municipal policy
includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61
(2011). Clark relies on the “custom” theory to show a policy for which the
City might be liable—that is, he alleges that the City, as a matter of routine
custom, permitted its police officers to violate citizens’ constitutional rights
so as to do favors for friends and romantic partners.

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(1)
Clark’s evidence of a custom consists of fifty-five administrative
complaints and twenty-seven Internal Affairs complaints lodged against the
City of Burleson Police Department over the last ten years. Although he
refers to eighty-two complaints, it is unclear whether any of the Internal
Affairs complaints duplicate or derive from the administrative complaints, so
the true total number of complaints over the ten-year period is uncertain.
Clark avers that he is confident discovery will produce, from among these (up
to) eighty-two complaints, a sufficient number of stories like his own to
demonstrate a pattern. He also claims that the City police department is small
enough that this number of complaints is alarming.
Clark claims to show a pattern of unconstitutional conduct done on
behalf of friends and romantic partners through the raw number of
complaints against the police force. But “[a] successful showing of such a
pattern ‘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.’” Hicks-Field, 860 F.3d at 810 (quoting Peterson v. City
of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)). Clark does not allege facts
that would permit a court to plausibly infer that even a single one of the prior
complaints had anything to do with officers doing favors for friends and
romantic partners, with wrongful arrests, or with any other aspect of his claim
that could go to a pattern or practice sufficient to constitute a custom.
Clark also alleges that, following his own arrests, he sought to file a
criminal complaint against the arresting officers, to speak to the police chief,
and to file a complaint with Internal Affairs, but he was frustrated at every
turn. Clark’s allegations include a sergeant who was allegedly unprofessional

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towards him, two cancelled meetings, 2 and Clark’s own loss of faith in the
Internal Affairs division of the Burleson Police Department (leading to him
declining to follow up when Internal Affairs reached back out to him). Clark
argues that this evidences a culture that reflects a custom of permitting
constitutional violations for the benefit of officers’ friends and romantic
partners. Although these allegations might evidence a culture that permits
unprofessional conduct, they do not include any facts that would permit a
court to infer an unconstitutional custom. They do not show that other
complaints have been mishandled or other constitutional violations
permitted. Even when combined with Clark’s statistical claims, “I was
treated unprofessionally” plus “eighty-two generic complaints” does not
equal facts that plausibly show a single comparable incident that would
support an inference of a specific custom of violating constitutional rights. See
Hicks-Field, 860 F.3d at 810.
Ultimately, Clark alleges no facts other than those of his own case plus
speculation and conclusory allegations in support of a custom of doing favors
that involve constitutional violations. “[P]lausibly to plead a practice ‘so
persistent and widespread as to practically have the force of law,’ a plaintiff
must do more than describe the incident that gave rise to his injury.” Peña,
879 F.3d at 622 (quoting Connick, 563 U.S. at 61); see also Mathews v. Bowie
Cnty., 600 F. App’x 933, 934 (5th Cir. 2015) (per curiam) (“[W]e have
consistently held, as is the case here, that ‘[a]llegations of an isolated incident
are not sufficient to show the existence of a custom or policy.’” (quoting
Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir.1992))).

2
Clark concedes that one of the officers who cancelled a meeting with Clark (a
captain in Internal Affairs) reached back out to follow up, but he claims by that time he felt
he “could no longer trust[ ] the integrity of even the Internal Affairs division . . . .”

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(2)
To show a policy by way of custom, a plaintiff “must also establish
‘[a]ctual or constructive knowledge of such custom’ by the municipality or
the official who had policymaking authority.” Hicks-Field, 860 F.3d at 808
(quoting Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984)).
In this circuit: “Actual knowledge may be shown by such
means as discussions at council meetings or receipt of written
information. Constructive knowledge may be attributed to the
governing body on the ground that it would have known of the
violations if it had properly exercised its responsibilities, as, for
example, where the violations were so persistent and
widespread that they were the subject of prolonged public
discussion or of a high degree of publicity.”
Id. at 808–09 (quoting Bennet v. City of Slidell, 728 F.2d 762, 768 (5th Cir.
1984)). Clark fails to allege any facts that would give rise to an inference that
any City policymaker had actual knowledge of an unconstitutional custom.
We address this issue solely because Clark alleges “on information
and belief” that the policymaker had knowledge of the custom; he did the
same when he alleged that some of the eighty-two complaints included facts
similar to his own. Clark is correct that a plaintiff may use “information and
belief” to allege facts that are peculiarly in the possession of an opposing
party. See Innova Hosp., 892 F.3d at 730. However, a plaintiff needs to
exercise reasonable due diligence and provide some factual basis for his
allegations that would “raise a reasonable expectation that discovery will
reveal evidence” that defendants engaged in unlawful conduct. Twombly, 550
U.S. at 556; Innova Hosp., 892 F.3d at 730.
In Innova Hospital, the plaintiffs could not allege specific contractual
language that had been violated because they did not have access to specific
health plans for numerous patients. However, they could allege industry-

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standard language and representative language from similar contracts. Id. at
729–30. It was reasonable to expect that, with discovery, they would be able
to provide the exact plan language for the remaining patients, and it would
likely show Innova had been underpaid.
Here, Clark has not done his due diligence. He asserts that “publicly
available memoranda prepared for and delivered to” city policymakers
(whether “the city council, the city administrators, or the Chief of Police”),
as well as “non-public documents” related to the incidents described in the
eighty-two complaints would show that policymakers had knowledge of a
custom of constitutional violations. He does not, however, allege any facts
regarding the existence of any specific public memoranda or the actual
contents of any memoranda (public or non-public). He purports to rely, “on
information and belief,” on the existence of public documents— but public
documents would not be “peculiarly within the possession and control of the
defendant.” Id at 730 (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110,
120 (2d Cir. 2010)).
Similarly, some of the eighty-two complaints may be confidential, but
Clark offers no facts that would permit us to reasonably expect discovery to
turn up cases like his own. He does not allege that there were “discussions at
council meetings” or the sort of “prolonged public discussion or [ ] a high
degree of publicity” that this court acknowledged in Hicks-Field could
indicate actual or constructive knowledge by city policymakers. 860 F.3d at
808–09. Such public discussions or a high degree of publicity about whether
the police force was systematically violating citizens’ constitutional rights
might also provide the sort of context that would make Clark’s allegations
about eighty-two complaints meaningful. We doubt there is a single police
department in the country that has gone a decade without any complaints;
alleging “on information and belief” that there may be complaints similar to
his own merely because complaints exist is not enough for Clark to state a

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plausible claim that a municipal custom caused a constitutional violation.
Clark’s “complaint invites no more than speculation that any particular
policymaker, be it the chief of police or the city commission, knew about the
alleged custom,” or that there are any further incidents that could evince the
existence of such a custom. Peña, 879 F.3d at 623. As such, he has failed to
state a § 1983 claim against the City. 3
C.
Finally, we consider Clark’s claims against Thompson. Clark alleges
Thompson searched his hotel room and home, and seized him for mental
evaluation with neither a warrant nor probable cause. The parties do not
dispute that Clark’s apprehension for a mental health evaluation constituted
a Fourth Amendment seizure. See Pena v. Givens, 637 F. App’x 775, 780 (5th
Cir. 2015) (per curiam) (“This Court has held implicitly that a person taken
into custody by police officers under Texas Health and Safety Code § 573.001
is seized under the Fourth Amendment.” (citing Cantrell v. City of Murphy,
666 F.3d 911, 923 (5th Cir. 2012))).
They dispute, however, whether Thompson had probable cause to
enter Clark’s home and seize him. “The ‘constitutional torts’ of false arrest,
unreasonable seizure, and false imprisonment also require a showing of no
probable cause.” Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (emphasis
added). If an individual poses a threat to himself, that “may create an

3
The district court also correctly dismissed Clark’s failure to train claim against
the City. A “municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train,” Connick, 563 U.S. at 61, and Clark’s failure to
train claim adds no more to his overall pleading than a bare assertion that the custom of
constitutional violations—which he failed adequately to plead—also indicates that the City
needed to further train its officers against adopting an unconstitutional custom. Just as
Clark failed to plead an unconstitutional custom or policy against the City, he also failed to
plead that the City inadequately trains its police force against acting on such a custom.

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exigency that makes the needs of law enforcement so compelling that a
warrantless entry is objectively reasonable under the Fourth Amendment.”
Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1131 (5th Cir. 2014).
We are guided, in part, by Texas law, which permits warrantless
apprehension when an officer (1) “has reason to believe and does believe”
that a person has a mental illness and “because of that illness there is a
substantial risk of serious harm to the person or to others unless the person
is immediately restrained” and (2) the officer “believes that there is no
sufficient time to obtain a warrant before taking the person into custody.”
Tex. Health & Safety Code § 573.001(a). Such a risk may be
demonstrated by (1) “the person’s behavior” or (2) “evidence of severe
emotional distress and deterioration in the person’s mental condition to the
extent that the person cannot remain at liberty.” Tex. Health &
Safety Code § 573.001(b). Finally, an officer “may form the belief that
the person meets the criteria for apprehension: (1) from a representation of a
credible person; or (2) on the basis of the conduct of the apprehended person
or the circumstances under which the apprehended person is found.” Tex.
Health & Safety Code § 573.001(c).
The district court held that the officers acted reasonably because they
were responding to a call about Clark being a possible suicide threat and
found the pills he was allegedly planning to use to commit suicide. Clark
counters in his briefing to this court that “the Officer Appellees had actual
knowledge that the charges against Clark were untrue.” Neither
characterization precisely fits the facts alleged in Clark’s First Amended
Complaint. Because we must, at this stage, determine whether the officers
“are entitled to qualified immunity based on the facts alleged in the
complaint, which we must accept as true, drawing all reasonable inferences
in favor of” the plaintiff, it will be helpful to recap briefly what was and what
was not alleged in Clark’s complaint. Morgan, 659 F.3d at 401.

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Clark argues that the district court erred in concluding that “on both
occasions, the Officers were responding to a call about Clark being a suicide
threat,” because he had alleged only that they claimed to be responding to
such a call—he had not alleged that they actually were. Clark v. City of
Burleson, No. 3:19-CV-2126, 2020 WL 635842, at *3 (N.D. Tex. Feb. 11,
2020). Clark alleges that the officers knew his wife because they were patrons
of her hair salon. He alleges that she had been planning to file for divorce and
did not want to share custody of their son. Allegedly, she had confided to
friends that she was scheming to deprive Clark of his custody rights (the
friends, apparently, broke her confidences and reported the schemes to
Clark) by either murdering Clark or by falsely accusing Clark of physically
and sexually abusing her. Clark concludes that “it appears” his wife
“deployed a third option”—falsely accusing him of suicidal tendencies to
make him appear mentally unfit.
Clark also alleges that, during the Fort Worth incident, the Fort
Worth police told Clark that Thompson had reported to them that he had
information indicating Clark had threatened to commit suicide. During the
second incident, Thompson told Clark directly that he had information Clark
had threatened to commit suicide, and specified (after locating a pill bottle)
that he “had information that Clark had swallowed a handful of pills.”
It’s clear the officers had received information of some sort because
they knew where to find Clark, including when he was in a hotel rather than
staying in his home. So the allegations indicate the officers had received some
communication about Clark, allegedly from Clark’s wife, that included
details like his whereabouts to bolster its reliability. Despite their marital
strife, Clark’s spouse is nonetheless likely to have at least some personal
knowledge of his mental state. The officers were able to corroborate details
of the report, such as Clark’s location (they knew to find him at the hotel in
the first incident, and at his home in the second) and the presence of a pill

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bottle that, at least in the second incident, Thompson claimed to have been
told Clark was planning to use in his suicide.
The facts Clark has pled are consistent with Thompson having
received a detailed call from someone personally familiar with Clark’s mental
state informing him that Clark was suicidal, when Thompson was already
familiar with Clark’s difficult marital situation due to Thompson’s personal
relationship with Christi Clark. This court has acknowledged the impact that
marital strife can be expected to have on a person’s mental state. See, e.g.,
Martinez v. Smith, No. 99-40286, 1999 WL 1095667 at *1 (5th Cir. 1999) (per
curiam) (finding probable cause to investigate under Texas Health and Safety
Code where plaintiff “confirmed to the officers that she and her ex-husband
had just had a disagreement”). This is information sufficient for Thompson
to have “reason to believe” that Clark was mentally ill (suicidal). Tex.
Health & Safety Code § 573.001(a)(1). With information that Clark
was a suicide risk and had the means to act on it (pills), Thompson could have
reasonably believed “there [was] not sufficient time to obtain a warrant
before taking [Clark] into custody.” Tex. Health & Safety Code §
573.001(a)(2).
The exigency of a credible risk that a person is about to end their life
justifies the warrantless entries into Clark’s hotel room and home; the
corroborating discovery of pills, the purported means by which he was
planning to end his life, provides probable cause to detain him. Clark argues
to us now that Thompson did not in fact believe that Clark was a suicide risk,
but his complaint—to which we are confined—alleges explicitly that Clark
has no facts to cast doubt on the veracity of Thompson’s belief.
Clark argues on appeal that Thompson and Giddings had formed an
agreement with his wife to falsely arrest him, but he made no such allegation
in his First Amended Complaint—to the contrary, he conceded that he had

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no facts indicating such an agreement. Even if he had, “a conclusory
allegation of agreement at some unspecified point does not supply facts
adequate to show illegality.” Twombly, 550 U.S. at 557. Clark is correct that,
if Thompson and Giddings were actively and knowingly in cahoots with his
wife, this would be a different case. But he offers no facts that could make
that plausible. Clark provides no factual basis for his claim that his wife had
“intimate relationships” with (apparently) both officers; even if he had, it
would still provide insufficient cause to infer that she had informed them of
the details of her alleged scheme to frame Clark for mental instability. 4
In Twombly, the Supreme Court acknowledged that “parallel conduct
was consistent with an unlawful agreement, [but] the Court nevertheless
concluded that it did not plausibly suggest an illicit accord because it was not
only compatible with, but indeed was more likely explained by, lawful,
unchoreographed free-market behavior.” Iqbal, 556 U.S. at 680 (citing
Twombly, 550 U.S. at 567). Similarly, Clark’s apprehension by officers
allegedly involved with his wife does not plausibly suggest an illicit accord
because it is not only compatible with, but indeed is more likely explained by,
the officers’ receipt of a credible report that he was suicidal, unaccompanied
by any illicit conspiracy or explanation of the report’s falsehood.
It is conceivable that Christi Clark informed the officers of her plan
and that they acted on what they knew to be false information. However,
“[w]here a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and
plausibility of “entitlement to relief.”’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). Here, “the well-pleaded facts do not permit the

4
Since it is a bare assertion, made “on information and belief,” with no facts to
indicate how Clark concluded that his former wife was intimately involved with at least 5%
of the Burleson Police Department, we also need not treat this allegation as true.

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Case: 20-10568 Document: 00515772447 Page: 17 Date Filed: 03/09/2021

No. 20-10568

court to infer more than the mere possibility of misconduct,” id. at 679,
which is not enough to show that Thompson acted with “no probable cause,”
Brown, 243 F.3d at 189. Clark has failed to plead a violation of his
constitutional rights.
CONCLUSION
Clark’s allegations rest on a great deal of “information and belief.”
He alleges that the Burleson Police Department has a custom of permitting
officers to violate constitutional rights in order to do favors for friends and
romantic partners and (admittedly without facts to support the allegation)
that his former spouse conspired with Officers Thompson and Giddings to
falsely apprehend him on suspicion of suicidal tendencies. Clark insists
throughout his argument that discovery will uncover the facts he needs to
support his allegations. The Supreme Court has “explained that something
beyond the mere possibility of loss causation must be alleged, lest a plaintiff
with ‘a largely groundless claim’ be allowed to ‘take up the time of a number
of other people, with the right to do so representing an in terrorem increment
of the settlement value.’” Twombly, 550 U.S. at 557–58 (quoting Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975)). Clark has failed to
allege facts sufficient to proceed to discovery. We cannot allow Clark to
embark on an unjustified fishing expedition against the officers or the City to
discover facts that might have justified proceeding beyond the Rule 12(b)(6)
stage if they had been alleged at the outset.
The district court’s dismissal of all claims is AFFIRMED.

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