Case: 22-10311 Document: 00517025244 Page: 1 Date Filed: 01/08/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10311
Summary Calendar FILED
____________ January 8, 2024
Lyle W. Cayce
Lonnie Kade Welsh, Clerk
Plaintiff—Appellee,
versus
Lamb County, Texas
Defendant—Appellant,
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CV-077
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit Judges.
Per Curiam: *
Lonnie Kade Welsh appeals the district court’s January 24, 2022, final
order dismissing Welsh’s claims under 28 U.S.C. § 1915A as well as the
district court’s order on January 28, 2022, denying Welsh’s motion to amend
judgment under Federal Rule of Civil Procedure 59(e).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10311
Welsh’s claims relate to an incident that occurred at the Texas Civil
Commitment Center (“TCCC”) where Welsh was civilly committed under
Texas Health and Safety Code § 841.001 as a sexually violent predator. On
or around November 13, 2017, Welsh was being transferred to a medical
appointment when he became combative (the “November 2017 incident” or
the “incident”). Welsh was returned to TCCC and ultimately presented
himself to the nurse with a swollen eye, scrapes, and several additional
injuries. Welsh reported the incident to the police, claiming that TCCC staff
“slammed” his face into the floor causing injuries. After investigation, the
Lamb County Police Department concluded that Welsh had not been
assaulted.
Instead, on November 28, 2017, the police arrested and charged
Welsh under Texas Penal Code § 37.09 for tampering or fabricating physical
evidence on the basis that Welsh harmed himself and falsely reported TCCC
staff as the culprit. At trial, Welsh “admitted . . . he had a ʻplan’ to cause the
employees to use force against him’ so that he could sue the employees ʻto
get paid’ and to show that what the employees are doing at this facility ʻis
actual punishment and not treatment.’” 1 He was convicted in May 2018 and
received an 11-year sentence. 2 In 2019, however, the Texas Court of Appeals
reversed Welsh’s conviction. 3
On March 20, 2022, Welsh filed the current lawsuit against Lamb
County, Scott Say, Ricki Redman, Ross Hester, and the City of Littlefield
claiming that the investigation and prosecution of the November 2017
incident violated his constitutional rights. Welsh’s case was transferred to a
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1
Welsh v. State, 570 S.W.3d 963, 965 (Tex. App.—Amarillo 2019, pet. denied)
2
See generally id.
3
Id.
2
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No. 22-10311
magistrate judge for initial screening pursuant to 28 U.S.C. § 1915. 4 To better
understand Welsh’s allegations, the magistrate judge ordered Welsh to
complete a Questionnaire and Declaration and further ordered defendants to
develop a so-called Martinez report, comprised of authenticated records
pertaining to the specific allegations made in the complaint. On December
16, 2020, the magistrate judge recommended dismissing Welsh’s complaint. 5
The district court adopted the magistrate judge’s findings and
recommendations over Welsh’s objections and later denied Welsh’s motion
to amend its judgment.
I.
Since 2019, Welsh has filed multiple lawsuits relating to the 2017
incident in state court and at least 11 cases in the Northern District of Texas. 6
As a result of his multiple filings, a Texas Court of Appeals has deemed
Welsh a vexatious litigant. 7 The Northern District of Texas has previously
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4
See infra n.5.
5
The magistrate judge noted that Welsh was not subject to the screening
provisions of 28 U.S.C. § 1915A because he was confined pursuant to an order of civil
commitment and was thus not considered a “prisoner” within the meaning of 28 U.S.C.
§ 1915(h). However, because Welsh proceeded in forma pauperis, the magistrate judge
determined he was subject to the screening provisions of 28 U.S.C. § 1915(e)(2)(B). The
magistrate’s report and recommendations stated that Welsh’s complaint was screened
pursuant to § 1915(e) but recommended dismissal under § 1915A. Because the magistrate
specifically recognized that Welsh’s complaint was subject to screening under § 1915(e),
and not § 1915A, the Court understands this to have been a typographical error. The district
court may correct this error on remand.
6
Welsh’s filings in the Northern District of Texas include cases numbered:
(1) 5:17-cv-173 (voluntarily dismissed with prejudice); (2) 5:18-cv-20; (3) 5:19-cv-255;
(4) 5:20-cv-24; (5) 5:20-cv-77 (the present case); (6) 5:21-cv-156; (7) 5:22-cv-98; (8) 22-
cv-183; (9) 5:22-cv-237; (10) 5:22-cv-237; and (11) 5:23-cv-28. See also case number 5-23-
CV-890-RP, filed in the Western District of Texas.
7
See In re Welsh, No. 09-23-00027-CV, 2023 WL 2175768, at *1 (Tex. App.—
Beaumont 2023, no pet.).
3
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warned Welsh that he would face sanctions for further frivolous filings, as has
this Court. 8 The Supreme Court of the United States recently found that
Welsh “has repeatedly abused this Court’s process.” 9
Across his complaints, Welsh raises similar claims and frequently
names the same defendants. Relevant here, Northern District of Texas case
number 18-cv-20 and the present case were both brought in the Northern
District of Texas; both name Lamb County, Scott Say, Ricki Redman, Ross
Hester, and the City of Littlefield as defendants; and, in both cases, Welsh
asserts that his constitutional rights were violated during the investigation
and prosecution stemming from the November 2017 incident. The multitude
of Welsh’s filings and parallel issues raised make remand appropriate to
consider whether Welsh’s current claims are barred by res judicata and the
successive claim doctrine. 10 Accordingly, this Court REMANDS this case
for the district court to address this question in the first instance.
II.
“To assist district courts in discerning whether in forma pauperis
prisoner complaints may proceed, the Fifth Circuit has adopted a procedure
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8
Welsh v. McLane, No. 20-10412, 2021 WL 5313626 (5th Cir. Nov. 15, 2021).
9
Welsh v. Collier, 143 S. Ct. 1046, reconsideration denied, 143 S. Ct. 2454 (2023).
10
See Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (“Dismissal by the court
sua sponte on res judicata grounds, however, is permissible in the interest of judicial
economy where both actions were brought before the same court.”); Ali v. Higgs, 892 F.2d
438, 440 (5th Cir. 1990) (“However, we conclude that in an action proceeding under
section 1915(d), we may consider, sua sponte, affirmative defenses that are apparent from
the record even where they have not been addressed or raised in the district court . . . . a
court of appeals should have latitude in the absence of the defendant, as does the district
court, to effect the salutary principles of section 1915(d) by ending the litigation where the
plaintiff has no basis on which to succeed.”); see also Omran v. Wyche, 745 F. App’x 225
(5th Cir. 2018) (affirming dismissal of 18 U.S.C. § 1983 suit subject to the screening
provisions of 28 U.S.C. § 1915(e)(2) after district court sua sponte considered res judicata
effect of prior suit).
4
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from the Tenth Circuit that allows the district court to obtain a supplemental
record to further flesh out the facts behind a prisoner’s complaint.” 11 These
documents form a Martinez report. 12[I]f the Martinez report conflicts with
the pro se plaintiff’s allegations, the district court must accept the plaintiff’s
allegations as true, not the records in the report.” 13
Accordingly, the magistrate judge in this case ordered the defendants
to provide authenticated records to further develop the facts of the case. On
this Court’s review, Welsh’s version of the facts and those contained in the
Martinez report are in conflict. In particular, Welsh claims that TCCC staff
“slammed” his face into the floor, that he reported this to Ross Hester, and
that Hester made false allegations or omitted this information in his later trial
testimony. These claims conflict with Hester’s account, as contained in the
Martinez report. Instead of accepting Welsh’s allegations as true, it appears
that the magistrate judge accepted Hester’s affidavit, police report, and grand
jury testimony as true when recommending to dismiss Welsh’s case, and that
the district court followed suit.
Furthermore, both the magistrate and district court judges also
referenced the state court opinion reversing Welsh’s conviction. Although
the court may “take judicial notice of documents in the public record . . . and
may consider such documents in determining a motion to dismiss,” 14 the
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11
Davis v. Lumpkin, 35 F.4th 958, 963 (5th Cir. 2022) (italics in original).
12
See Davis, 35 F.4th at 963; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)
(stating that the court “may require the defendants in prisoner-rights cases to construct an
administrative record to assist the court in determining whether the complaint is
frivolous.”); Wilson v. Barrientos, 926 F.2d 480, 483 (5th Cir. 1991) (requiring that the
records be properly identified and authenticated).
13
Davis, 35 F.4th at 964 (italics in original).
14
R2 Invs. LDC v. Phillips, 401 F.3d 638, 639 n.2 (5th Cir. 2005).
5
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documents “should be considered only for the purpose of determining what
statements [they] contain, not to prove the truth of [their] contents,” 15 and
typically must be attached to the complaint. 16 While Welsh referenced the
state court opinion in his complaint, he did not attach a copy of the opinion
to his complaint.
If the district court determines that Welsh’s suit is not precluded by
prior decisions, it then must evaluate whether the magistrate judge properly
identified and resolved any factual conflicts between Welsh’s complaint and
the Martinez report.
III.
For the reasons stated above, we VACATE and REMAND for
reconsideration of the issues identified in this opinion. If the district court
believes it may benefit from the assistance of counsel, the district court is free
to appoint counsel on remand.
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15
Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1018 (5th Cir. 1996).
16
See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
6