Johnson v. Town of Prosper, Texas, et al.

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LEONARD JOHNSON,

Plaintiff,
v.

THE TOWN OF PROSPER, TEXAS,
et. al.,

Defendants.
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Civil Action No. 4:23-cv-650
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Town of Prosper’s Motion for Summary Judgment
(Dkt. #70) (the “Motion”). Having considered the Motion and the relevant pleadings, the Court
finds that the Motion should be GRANTED.
BACKGROUND
The Court has previously addressed the factual background of this case in its prior
Memorandum Opinion and Order (Dkt. #35 at pp. 1–5) and finds no need to repeat the entire story
here. Because Defendant Town of Prosper, Texas (“Prosper” or “the Town”) has averred that the
present Motion “will focus on the one claim against the town,” the Court restricts its evidentiary
recounting to those facts immediately necessary for resolution of the filing (Dkt. #70 at p. 1).
Plaintiff is a former software application developer whose wife was previously employed as
a communications manager and head of dispatch for Prosper (Dkt. #1 at ¶¶ 13–14). After Plaintiff’s
wife was negatively affected by certain organizational changes in the Town’s police department,
Plaintiff devised a plan to make the public aware of the Town police department’s shortcomings
(Dkt. #1 at ¶¶ 17, 20). Specifically, Plaintiff decided to use the Texas Public Information Act
(“TPIA”) to show that case clearance rates were beginning to fall under the Town police
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department’s leadership (Dkt. #1 at ¶ 20). Plaintiff sent a total of three requests under the email
address “prospercitycouncil@gmail.com,” and pseudonym “Geoff Hodges,” a name that closely
resembled the name of Town councilmember Jeff Hodges (Dkt. #16 at p. 8). After receiving an
unsatisfactory response, Plaintiff sent an unsigned message to the entire Town Council, the mayor,
and the town manager directly, admitting that he had used “a false name and email account when
requesting information from the city. As a proud Prosper citizen, I did so to remain anonymous and
protect myself from retaliation” (Dkt. #1 at ¶ 34). Within three hours of receipt of that email,
Defendant Lt. Boothe (“Boothe”) created the incident report which launched the criminal
investigation into Plaintiff (Dkt. #74 at p. 11). It was around this time that certain information
regarding Plaintiff was transferred to the Town attorney (Dkt. #74 at p. 11). Days later, on
November 3 and November 6, 2020, Plaintiff submitted additional TPIA requests from another
pseudonymous account under the name “Sam Kingston” (Dkt. #1 at ¶ 41).
On July 20, 2021, the day of Plaintiff’s wedding anniversary, Plaintiff was arrested by
Boothe and subsequently released on bond (Dkt. #1 at ¶ 83; Dkt. #74-2 at p. 3). On November 4,
2021, a Collin County Grand Jury indicted Johnson for impersonating a Public Servant under TEX.
PENAL CODE § 37.11(a)(1) (Dkt. #1 at ¶ 83; Dkt. #8- 12). On November 7, 2022, Plaintiff filed a
motion to quash his indictment, which was granted without opposition from the Collin County
District Attorney the next day (Dkt. #1 at ¶¶ 87–88).
Plaintiff ultimately sued Prosper for violating Plaintiff’s First, Fourth, and Fourteenth
Amendment rights, arguing that he is entitled to damages against the Town under 42 U.S.C. § 1983,
along with declaratory relief regarding the same (Dkt. #1 at p. 29). On February 25, 2026, Prosper
filed the pending Motion, seeking summary judgment in its favor on Plaintiff’s Monell claim
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(Dkt. #70). Plaintiff’s response and Prosper’s reply followed quickly thereafter, and the Motion is
now ripe for adjudication (Dkt. #74-1; Dkt. #78).
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper
under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must
resolve all reasonable doubts in favor of the party opposing the motion [for summary judgment].”
Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden
of proof on a claim or defense for which it is moving for summary judgment, it must come forward
with evidence that establishes “beyond peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by showing that there is an absence of
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evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News,
Inc., 209 F.3d 419, 424 (5th Cir. 2000).
Once the movant has carried its burden, the nonmovant must “respond to the motion for
summary judgment by setting forth particular facts indicating that there is a genuine issue for trial.”
Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative
evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257.
Mere denials of material facts, unsworn allegations, or arguments and assertions in briefs or legal
memoranda will not suffice to carry this burden. See Solomon v. Hou. Corrugated Box Co., 526 F.2d
389, 396–97 (5th Cir. 1976). Rather, the Court requires “significant probative evidence” from the
nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig.,
672 F.2d 436, 440 (5th Cir. 1982) (citation modified). The Court must consider all of the evidence
but “refrain from making credibility determinations or weighing the evidence.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)).
ANALYSIS
Plaintiff is attempting to hold Prosper liable under 42 U.S.C. § 1983 for various violations
of Plaintiff’s constitutional rights. Section 1983 creates a cause of action against a “person” who,
acting under the color of state law, deprives another of a constitutionally or federally protected
right, privilege, or immunity. See id. When the statute was originally passed, municipalities were
generally not considered “persons” acting under the color of state law and thus enjoyed immunity
from suit. This changed with the Supreme Court’s landmark decision in Monell v. Department of
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Social Services, 436 U.S. 658 (1978), which recognized that a municipal government could be liable
under § 1983 when a municipal policy or custom causes a violation of a constitutional right.
To hold a municipality liable under Monell, a plaintiff must first establish the existence of
an underlying constitutional violation, because “if [the] plaintiff does not show any violation of his
constitutional rights-then there exists no liability to pass through to the [municipality].” Brown v.
Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001). Next, a plaintiff must establish the existence of three
principal elements: “(1) an official policy (2) promulgated by the municipal policymaker (3) was
the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588
F.3d 838, 847 (5th Cir. 2009) (citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
This is especially pertinent here, where Plaintiff’s pleadings essentially “assert an unconstitutional
policy of municipal retaliation for disfavored speech. [H]e alleges that the unconstitutional policy
resulted in h[is] arrest without probable cause (a Fourth Amendment violation) and h[is] retaliatory
arrest (a First Amendment violation).” Thompson v. McGehee, No. 25-10196, 2026 WL 2069890, at
*11 (5th Cir. July 17, 2026).
I. Constitutional Violation
The Court has previously recognized the violation of Plaintiff’s First and Fourth
Amendment rights (Dkt. #35 at pp. 19, 35). Although Prosper argues that “Plaintiff . . . cannot
prevail against the Town of Prosper because probable cause existed for the Plaintiff’s arrest for
violation of Texas Penal Code § 37.11” (Dkt. #70 at p. 17), it fails to reference specific evidence or
new arguments for the Court to review in support of its proposition. Nevertheless, upon review of
the pertinent evidence submitted by both parties, and after resolving all reasonable doubts in
Plaintiff’s favor, the Court stands on its prior opinion that the relevant “search and arrest warrants
lacked sufficient indicia of probable cause to justify Plaintiff’s arrest” (Dkt. #35 at p. 40).
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II. Monell Liability
In addressing Plaintiff’s claim, the Court will search the record for evidence to support the
existence of the above-mentioned principal elements, i.e. that: “(1) an official policy
(2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a
constitutional right.” Peterson, 588 F.3d at 847.
Plaintiff does not attempt to point to a specific policy, custom, or practice of Prosper that
authorizes or otherwise condones arrests without the existence of probable cause. For example,
Plaintiff does not center his Monell claim on documents such as the “Prosper Police Department
Standard Operating Procedure” or the Town’s “Administrative Regulations” (See Dkt. #78 at
pp. 4–5). Rather, Plaintiff contends that the Town Council met as a body and directed one Doug
Kowalski (“Chief Kowalski”) to investigate the identity of the individual behind Plaintiff’s
pseudonymous email account, and that Chief Kowalski himself ratified Plaintiff’s subsequent
investigation and arrest.
The Fifth Circuit has previously held that “[i]t is well-established that a single
unconstitutional action by a municipal actor may give rise to municipal liability if that actor is a final
policymaker.” Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008). In such cases, the first and
second elements of the section 1983 analysis essentially merge, because “if a municipal official
engages in isolated unconstitutional conduct, and if that official has ‘final policymaking authority
to establish municipal policy with respect to the conduct that resulted in a violation of
constitutional rights,’ then that isolated unconstitutional conduct will be considered an official
municipal policy for purposes of section 1983 municipal liability.” Ezell v. Wells, No. 2:15-CV-
00083-J, 2015 WL 4191751, at *16 (N.D. Tex. July 10, 2015) (quoting Brown v. Bryan County, 67
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F.3d 1174, 1178 (5th Cir. 1995), vacated sub nom. Bd. of Cnty. Com’rs of Bryan Cnty. v. Brown, 520
U.S. 397 (1997)).
A. Final Policymaker Town Council
Plaintiff first argues that the Town Council acted as a final policymaker for Prosper. Prosper
does not challenge Plaintiff’s description of the Town Council in this regard. Accordingly, the
Court finds that the Town Council constitutes a relevant final policymaker for the Town of Prosper
(Dkt. 70 at p. 24). See, e.g., St. Maron Props., L.L.C. v. City of Houston, 78 F.4th 754, 761 (5th Cir.
2023) (“The . . . City Council [is a] final policymaker[] for the purpose of Monell liability”).
1

For a single decision to satisfy Monell, the “official or entity possessing ‘final policymaking
authority’ for an action” must actually “perform[] the specific act that forms the basis of the § 1983
claim.” 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), as revised (Mar. 31, 2017)). “This requires the ‘deliberate
choice to follow a course of action . . . made from among various alternatives by the official or
officials responsible for establishing final policy with respect to the subject matter in question.’” Id.
Additionally, “[a]t the very least there must be an affirmative link between the policy and the
particular constitutional violation alleged.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823
(1985).

1
Further supporting the Court’s decision is the Home Rule Charter of the Town of Prosper, Texas, which identifies
the Town’s municipal government as a “Council-Manager Government.” Town of Prosper, Texas, TOWN CHARTER
(amended 2017), https://www.prospertx.gov/DocumentCenter/View/786/Prosper-Town-Charter-PDF?bidId=. It
notes that “all powers of the Town shall be vested in an elective council, hereinafter referred to as the ‘Town
Council.’” Id.; see also Kellen Allison Cattle Co., LLC v. City of Shamrock, No. 2:24-CV-241-Z-BV, 2025 WL 1287738,
at *4 (N.D. Tex. May 2, 2025) (“Under Texas law, the city council—not the city manager—constitutes the final
policymaker.” (citing Groden v. City of Dallas, 826 F.3d 280, 286 (5th Cir. 2016))).
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The basis of Plaintiff’s § 1983 claim lies in a purported violation of his “First, Fourth and
Fourteenth” Amendment constitutional rights by virtue of a “malicious investigation into
Plaintiff’s identify and, consequently, his unlawful arrest and detention” (Dkt. #1 at ¶¶ 140, 144).
Thus, to support a valid Monell claim against Prosper, Plaintiff must raise sufficient evidence
related to the notion that the Town Council, acting as a final policymaker and through a specific
decision, performed the “act that forms the basis of the § 1983 claim.” Webb, 925 F.3d at 215.
Plaintiff’s First Amendment Claim. Plaintiff’s First Amendment retaliation claim
requires the satisfaction of three elements: (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 defendant’s adverse
actions were substantially motivated against the plaintiff’s exercise of constitutionally protected
conduct. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Izen v. Catalina, 398 F.3d 363, 367
(5th Cir. 2005). In addition, Plaintiff is required to establish each element of common law malicious
prosecution. Tejada, 290 F.3d at 260 (citing Johnson v. La. Dep’t of Agric., 18 F.3d 318, 320 (5th Cir.
1994)). As related to Prosper, the constitutional violation centers on the existence of a sufficient
“adverse government action” which chilled Plaintiff from exercising his constitutional rights
(Dkt. #35 at p. 38).
This Court previously identified the relevant adverse government action as Plaintiff’s
arrest (Dkt. #35 at p. 38). Plaintiff, however, seeks to impose liability on Prosper with reference to
the Town Council’s “direct involvement in the decision to investigate [Plaintiff ]” (Dkt. #74 at p. 21
(emphasis added)). To that end, Plaintiff introduces a variety of evidence suggesting that the Town
Council ordered individuals to investigate Plaintiff as a result of his communications with the
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Town. For example, Plaintiff identifies Boothe’s “recounting of the timeline of the investigation”
which suggests that “the Town council ‘m[et] and [said] we need to investigate and figure out
whose [sic] posing as jeff hodges’” (Dkt. #74 at p. 30).
Even assuming, arguendo, that Plaintiff has introduced sufficient summary judgment
evidence to support the Town Council as the source of an “investigation” into Plaintiff, there exists
no evidence pertaining to the Town Council’s direct involvement in an unconstitutional “adverse
government action” capable of imposing Monell liability upon Prosper. Although the investigation
ultimately resulted in Plaintiff’s arrest, the investigation alone is not sufficient to carry Plaintiff’s
First Amendment claim. This is because “the Fifth Circuit has explicitly [held that] an
investigation is not actionable under its First Amendment retaliation jurisprudence.” Grisham v.
Valenciano, No. SA-21-CV-00983-JKP, 2023 WL 367216, at *5 (W.D. Tex. Jan. 20, 2023) (citing
Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999)). At most, the evidence presented suggests
that the Town Council performed the “specific act” that formed the basis of an investigation into
Plaintiff, not the “specific act that forms the basis of the § 1983 claim,” i.e. the act which ultimately
chilled Plaintiff’s freedom of speech—his arrest. Webb, 925 F.3d at 215.
Furthermore, a thorough review of the evidence has not resulted in an observable requisite
“affirmative link between” the purported decision to launch an investigation into Plaintiff’s actions
“and the particular constitutional violation alleged,” previously identified by this Court as First
Amendment retaliation. Tuttle, 471 U.S. at 823. “Obviously, if one retreats far enough from a
constitutional violation some municipal ‘policy’ can be identified behind almost any . . . harm
inflicted by a municipal official . . . .” Id. Here, however, between the start of the investigation and
Plaintiff’s arrest lies a total of nine months and the intervening determinations and decisions made
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by a State District Judge, a Grand Jury, and the Collin County District Attorney’s Office. Because
the Town Council has not been sufficiently linked to the specific adverse government action
required to trigger a First Amendment retaliation claim, the Town Council cannot be used to
support Monell liability against Prosper. See, e.g., Webb, 925 F.3d at 220 (“At most, the summary
judgment evidence allows that the Mayor made the initial decision to pursue collection on
the . . . judgment. [But] the Webbs offer no way for us to conclude that this specific action by the
Mayor violated Webb’s constitutional rights.”).
Plaintiff’s Fourth Amendment Claim. In similar fashion to Plaintiff’s First Amendment
claim, Plaintiff’s Fourth Amendment claim is centered upon his arrest and detention. To determine
whether a genuine issue of material fact exists regarding the Town Council’s involvement in the
specific constitutional violation alleged, the Court turns once again to evidence pertaining to its
direct actions. Plaintiff’s complaint argues that “[t]he Town’s official policy is reflected in its
collective decision to direct [Chief Kowalski] . . . to investigate and prosecute [Plaintiff ]” (Dkt. #1
at ¶ 140). However, Plaintiff has not offered enough summary judgment evidence to suggest that
the Town Council, as opposed to another decisionmaker, was directly involved in the method or
manner of Plaintiff’s eventual arrest. To be sure, Plaintiff has produced evidence to suggest that
the Town Council discussed his TPIA requests in a “closed-door executive session meeting”
(Dkt. #74 at p. 23). Plaintiff also produced evidence to show that the Town Council received
updates on the status of Plaintiff’s investigation, and that its receipt of such an update was rare
(Dkt. #74 at p. 22). Further, Plaintiff has also indicated that his TPIA request information was
initially transmitted to the Town Attorney “around the time of [Plaintiff’s] November 2, 2020
email” to various Town Council members (Dkt. #74 at p. 22), and that his requests resulted in the
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Town Council’s receipt of a presentation containing an “overview of the public information request
process” (Dkt. #74 at p. 23). Plaintiff has not, however, produced evidence sufficient to bridge the
gap between the Town Council’s alleged decision to initiate an investigation and the source of
Plaintiff’s constitutional harm under the Fourth Amendment.
The absence of sufficient facts in this case becomes readily apparent upon consideration of
other false arrest and retaliation Monell cases. In Thompson, for instance, the Fifth Circuit found a
plaintiff had pleaded sufficient facts to survive a Rule 12(b)(6) challenge by identifying a City
Council that instructed the police to “target city council persons for code violations in an effort to
disparage them” and further directly threatened individuals with termination if they did not recant
statements made during city council meetings. 2026 WL 2069890, at *11. The plaintiff in that case
alleged that multiple citizens had submitted reports to the City Council regarding the police
department retaliating against them because of their speech. Id. Not only that, but the plaintiff
alleged that the police contacted her directly and ordered her “to stop publicly voicing her
concerns,” and that “if she did not, there would be consequences.” Id. No such facts (or evidence
to support them) have been identified in this case at summary judgment, and this absence is
uniquely damaging to Plaintiff’s claims, as “the only ‘specific fact’ the [Plaintiff has] pleaded [is]
the single incident in which he himself was involved.” Id. (citing Peña v. City of Rio Grande City,
879 F.3d 613 (5th Cir. 2018)). At most, Plaintiff has shown that the Town Council restricted internal
communications with him to the Town Attorney, which is a specific decision separate and apart
from the basis of the constitutional violation at issue (Dkt. #74-24 at p. 1 (Chief Kowalski’s email
concerning his belief that “the Town has determined that any responses to the person who
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committed a Felony of Impersonating a Public Servant . . . should only be responded to by the
Town Attorney”)).
In this context, the Court declines to hold that “evidence reflecting a meeting of the Town
Council in which a decision was made to investigate [Plaintiff ] establishes that there is a genuine
issue of material fact regarding the existence of an official policy” (Dkt. #74 at p. 23). Cf. Pembaur
v. City of Cincinnati, 475 U.S. 469, 480–81, 484–85 (1986) (finding a valid claim against a county
when the relevant final policymaker “made a considered decision based on his understanding of
the law and commanded the officers forcibly to enter petitioner’s clinic,” and “[t]hat decision
directly caused the violation of petitioner’s Fourth Amendment rights.”).
B. Final Policymaker Chief Kowalski
Plaintiff also argues that Chief Kowalski, as the head of the Town’s police department,
acted as a final policymaker for Prosper. As with the Town Council, Prosper does not challenge
Plaintiff’s description, and the Court finds that Chief Kowalski constitutes a relevant final
policymaker. See Garza v. City of Donna, 922 F.3d 626, 637 (5th Cir. 2019) (collecting cases) (noting
that the Fifth Circuit has found repeatedly that “Texas police chiefs are final policymakers for their
municipalities, and it has often not been a disputed issue in the cases”); see generally Taylor v.
Hartley, 488 F. Supp. 3d 517, 538 (S.D. Tex. 2020) (“It has long been recognized in Texas that the
county sheriff is a county’s final policymaker as to law enforcement.”).
Plaintiff argues that Chief Kowalski’s “ratification of [Defendant] Boothe’s
unconstitutional investigation and arrest amounts to an official policy” (Dkt. #74 at p. 23 (modified
for readability)). Ratification, however, is not a straightforward or particularly simple legal theory
to support. See Peterson, 588 F.3d at 848. While the Fifth Circuit has expressed that ratification may
sometimes be deemed sufficient to create a municipal policy, it has also warned that “[i]t is
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important to recognize that the ratification theory, in whatever context it arises, is necessarily cabined
in several ways.” Milam v. City of San Antonio, 113 F. App’x 622, 626– 27 (5th Cir. 2004)
(unpublished) (emphasis added). As applied to municipal liability, the theory of ratification is so
limited as to prevent it “from becoming a theory of respondeat superior, which theory Monell does
not countenance.” Id. at 6 27. Ratification “requires that a policymaker knowingly approve a
subordinate’s actions and the improper basis for those actions. Otherwise, unless conduct is
‘manifestly indefensible,’ a policymaker’s mistaken defense of a subordinate who is later found to
have broken the law is not ratification chargeable to the municipality.” Covington v. City of
Madisonville, 812 F. App’x 219, 228 (5th Cir. 2020) (per curiam) (unpublished) (internal citations
omitted).
Plaintiff argues that there exists a genuine issue of material fact regarding Chief Kowalski’s
ratification of his investigation and arrest by Boothe, and offers a variety of evidence in support of
this proposition. Plaintiff first highlights Boothe’s 2021 annual review, which included an excerpt
by Chief Kowalski specifically recognizing Boothe’s efficiency and persistence in identifying and
arresting Plaintiff (Dkt. #76-2 at p. 1). Next, Plaintiff cites deposition testimony wherein Chief
Kowalski noted his belief that Boothe’s actions were made with professionalism and followed
traditional directives (Dkt. #76-1 at p. 19). Plaintiff also references Chief Kowalski’s belief, as
pronounced in his deposition, that “we [were] in search of a suspect. We [had] the crime, the crime
[had] been reported, and we [were] in search of the suspect” (Dkt. #74-8 at p. 16).
Prosper takes issue with Plaintiff’s ratification theory, arguing that that Chief Kowalski was
“in search of a suspect” because the Collin County District Attorney’s Office had concluded and
informed him that a crime had been committed, not because the police chief was personally
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invested in Plaintiff’s arrest (Dkt. #78 at p. 4; Dkt. #70-1 at p. 45). Prosper further argues that there
is “nothing ‘extreme’ about what transpired regarding the Plaintiff’s investigation, arrest, and
eventual prosecution” and that summary judgment is proper on that ground (Dkt. #78 at p. 8).
Although “[t]he precise standard by which to plead a ratification theory is somewhat
unclear as discussed and applied in other Fifth Circuit precedent,” the Court notes that it “is bound
by the Fifth Circuit, which has consistently held that the ratification theory applies only to ‘extreme
factual scenarios.’” Taylor, 488 F. Supp. 3d at 537; Hobart v. City of Stafford, 916 F. Supp. 2d 783,
796 (S.D. Tex. 2013); see World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755
(5th Cir. 2009) (“[U]nless the subordinate’s actions are sufficiently extreme—for instance, an
obvious violation of clearly established law—a policymaker’s ratification or defense of his
subordinate’s actions is insufficient to establish an official policy or custom.”). To contextualize
and further define a sufficiently “extreme factual scenario,” the Court turns to two Fifth Circuit
opinions addressing a familiar issue.
The first relevant case is Davidson, 848 F.3d at 384. There, two officers arrested a protestor
without probable cause in violation of the protestor’s First and Fourth Amendment rights. Id. at
393. Afterwards, the police chief investigated the two officers’ unconstitutional conduct and
determined that they had not committed any violation warranting discipline. Id. at 395. The Fifth
Circuit found that the police chief’s investigation of the two officers did not support a ratification
theory because the arrest “was not sufficiently extreme to qualify for a finding of ratification” and
that it “thus [could not] support an allegation of ratification resulting in an official policy on part of
the City.” Id. at 396. The Fifth Circuit similarly affirmed a district court’s decision to grant
summary judgment against a plaintiff’s Monell claim based on ratification in Peterson. 588 F.3d at
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852. There, a police chief declined to discipline two officers for their unconstitutional use of force
and failure to file a report. Id. at 848. In defense of his claim, the plaintiff raised deposition
testimony indicating that the police chief testified that “both officers complied with the City’s
policies and procedures.” Id. at 848 n.2. Over a single dissent, the Fifth Circuit found that “this
evidence, viewed in the light most favorable to [the plaintiff ], is insufficient to create a fact issue
regarding the City’s policymaker’s ratification of unconstitutional conduct,” as “precedent has
limited the theory of ratification to ‘extreme factual situations.’” Id. at 848 n.2, 848.
While “[l]imited guidance exists as to the definition of a sufficiently extreme factual
scenario,” the Court finds that Plaintiff has not raised sufficient evidence to support the “extreme”
nature of the facts presented. Hobart, 916 F. Supp. 2d at 796. Here, the evidence suggests that Chief
Kowalski was “told there was a crime” and that he personally emailed individuals employed by
Prosper to “ensure that everyone is aware of the insidious nature of [Plaintiff ] and his efforts to
continue to avoid detection” (Dkt. #70-1 at p. 45; Dkt. #74-37). Chief Kowalski consequently
ordered Boothe to investigate Plaintiff as a suspect of that crime (Dkt. #70-1 at p. 45). Boothe
received confirmation from the District Attorney’s Office that a crime had occurred, obtained
multiple warrants, and submitted the results of his investigation to the relevant prosecuting agency
(Dkt. #76-1 at p. 8). Boothe and six other officers ultimately arrested Plaintiff at his home and
conducted multiple searches of his person and effects (Dkt. #1 at p. 18). Plaintiff was subsequently
booked into the Collin County Jail and released that same day (Dkt. #1 at p. 18).
The facts underlying Plaintiff’s arrest are not particularly extreme—what primarily sets
this case apart from Davidson and Peterson is Chief Kowalski’s early involvement in the
investigation and his advisory statements (including references to Plaintiff’s “felonious acts”)
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made prior to Plaintiff’s arrest (Dkt. #74-35 at p. 2). However, these distinctions, even considered
alongside Plaintiff’s more general factual allegations, do not rise to the level of the elusive “extreme
factual situation” presented in Fifth Circuit precedent to impose ratification liability on Prosper.
Compare Grandstaff v. City of Borger, 767 F.2d 161, 168–70 (5th Cir. 1985) (finding ratification where
officers “poured” gunfire into a truck, killing an innocent occupant), with Snyder v. Trepagnier, 142
F.3d 791, 798–801 (5th Cir. 1998) (finding no ratification where an officer shot a fleeing suspect in
the back).
Moreover, Chief Kowalski’s pre-arrest warnings and subsequent approval of the manner in
which Boothe conducted the investigation and arrest, without more, cannot carry Plaintiff’s
ratification theory through summary judgment, as “good faith statements made while defending
complaints of constitutional violations by municipal employees do not demonstrate ratification.”
Davidson, 848 F.3d at 395. Nor are Boothe’s actions in arresting Plaintiff enough to establish “an
obvious violation of clearly established law,” as the mere absence of probable cause for an arrest
has historically fallen short of supporting a “sufficiently extreme” ratifiable subordinate action.
World Wide, 591 F.3d at 755; see, e.g., Davidson, 848 F.3d at 396; Peterson, 588 F.3d at 848.
On these facts, and under the Fifth Circuit’s recognition that “ratification is ‘seldom, if
ever, found by this court,’” the Court holds that Plaintiff has not carried his burden as to this
fundamental requirement and has not identified ratification as a theory that might properly go
before the jury. Peterson, 588 F.3d at 848 n.2; see also York v. Welch, No. 20-40580, 2024 WL 775179,
at *6 (5th Cir. Feb. 26, 2024) (“Whether a case presents an extreme factual situation . . . such that
a theory of ratification applies is a question of law.”) As a result, ratification will not be applied to
“overcome the general prohibition against holding a municipality liable for acts of its officials as set
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forth in Monell,” and Prosper is entitled to summary judgment on this issue. Skyy v. City of
Arlington, 712 F. App’x 396, 397 (5th Cir. 2017) (per curiam) (unpublished).
C. Moving Force
The third Monell factor relates to the notion that “[m]unicipal liability inures only when the
execution of a local government’s policy or custom causes the injury.” Baker v. Putnal, 75 F.3d 190,
200 (5th Cir. 1996). “The moving force analysis requires that rigorous standards of culpability and
causation . . . be applied to ensure that the municipality is not held liable solely for the actions of its
employees.” Smith v. Carruth, No. 15-4570, 2017 WL 785345 at *7 (E.D. La. Mar. 1, 2017) (citation
modified) (quoting Brown, 520 U.S. at 405). Under this factor, “a plaintiff must show either that
the policy itself was unconstitutional or that it was adopted with deliberate indifference to the
known or obvious fact that a specific constitutional violation would follow.” Liggins v. Duncanville,
52 F.4th 953, 955 (5th Cir. 2022) (citation modified).
1. Town Council’s Investigation of Plaintiff
Plaintiff argues that the Town Council’s Monell “policy” of investigating Plaintiff was
unconstitutional or made with deliberate indifference. Even assuming that Plaintiff was successful
in “rais[ing] a fact dispute over whether an official policy or custom existed,” the Court finds that
Plaintiff has not produced enough summary judgment evidence to support a fact issue regarding
the Town Council’s moving force culpability. Moore v. LaSalle Mgmt. Co., L.L.C., 41 F.4th 493, 509
(5th Cir. 2022)
As previously indicated, Plaintiff’s constitutional violations related to Prosper are tethered
to his arrest, not his investigation. See Supra II.A–B. In this context, and under the facts presented,
the Court declines to hold that the Town Council’s act of initiating an investigation into Plaintiff
was unconstitutional on its face. Villarreal v. City of Laredo, 17 F.4th 532, 542 n.1 (5th Cir. 2021)
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(holding “this circuit does not recognize” a retaliatory- investigation claim), cert. granted, judgment
vacated on other grounds sub nom. Villarreal v. Alaniz, 145 S. Ct. 368 (2024); McKinney v. Sharp, No.
25-00080-SDD-RLB, 2026 WL 868598, at *6 (M.D. La. Mar. 30, 2026) (“It is one thing to subject
a citizen to ‘public criticism, an investigation (or attempted investigation), and false
accusations’— which the Fifth Circuit has determined are not substantial enough ‘injuries’ to chill
a person of ordinary firmness.” (quoting Colson, 174 F.3d at 512)).
Because Plaintiff has not identified facts to support a direct unconstitutional “policy,” he
must raise facts to support the notion that the Town Council’s decision to investigate Plaintiff was
made with deliberate indifference to the known or obvious fact that his constitutional rights would
be violated. Thus, Plaintiff is expected to present a “rare circumstance[]” in which the “extremely
narrow” single decision exception constitutes a moving force of Plaintiff’s injury. Liggins, 52 F.4th
at 955. To warrant application, “the constitutional harm in question must’ve been the ‘plainly
obvious’ consequence of the actor’s single decision. In practice, that means the decision must’ve
been made despite a very ‘high degree of predictability concerning the consequences of the
challenged decision.’ That’s a ‘stringent standard’ which requires ‘unmistakable culpability and
clearly connected causation.’” Id. (internal citations omitted) (quoting Brown v. Bryan County, 219
F.3d 450, 460–62 (5th Cir. 2000)). In applying this standard, the Fifth Circuit has repeatedly
“stressed that a single incident is usually insufficient to demonstrate deliberate indifference,” and
the Court cannot spy an exception to this general rule under the facts presented. Est. of Davis v.
City of N. Richland Hills, 406 F.3d 375, 382 (5th Cir. 2005).
First, Plaintiff has not cemented his arrest, nor any chilling of his rights under the First
Amendment, as the “highly predictable consequence” of the Town Council’s decision. Again, an
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analysis of the chain of causation indicates that three independent decisions and a total of nine
months separate the decision to begin investigating Plaintiff and the ultimate decision to arrest him.
Given the involvement of multiple actors and the exceptional length of the relevant chain of
causation, the decision to investigate an individual for utilizing a pseudonym in TPIA requests,
even under the knowledge that the individual was doing so at least partially to protect his identity,
does not rise to the level of deliberate indifference towards the suppression of Plaintiff’s rights
under the First or Fourth Amendment. On this record, the Court is left with no facts with which
to sufficiently support Plaintiff’s interpretation that his constitutional harm was the “plainly
obvious” consequence of the Town Council’s single decision to investigate Plaintiff. Liggins, 52
F.4th at 955. Consider the Fifth Circuit’s decision in Webb, for instance. 925 F.3d at 219–20. Just as
the single decision by a town mayor to “begin undertaking efforts to collect on [a] judgment”
against a city employee did not constitute the “moving force” behind the employee’s ultimate
injury, so too does the Town Council’s single decision to begin undertaking efforts to investigate
Plaintiff fall short of constituting the “moving force” behind Plaintiff’s ultimate constitutional
injury here. Id.
Second, Plaintiff has not provided sufficient evidence to show that the Town Council
possessed the requisite degree of culpability regarding the violation of his constitutional rights, or
that the Town Council otherwise “completely disregarded any risk to [Plaintiff’s] Fourth [or First]
Amendment rights.” Liggins, 52 F.4th at 956. Importantly, Plaintiff has not provided any evidence
to support the Town Council’s direct involvement in the day-to-day management or ultimate
outcome of the investigation into Plaintiff. The Town Council also did not publicly reprimand
Plaintiff or take other immediate, personal action against him once his identity was revealed. At
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worst, the evidence presented suggests that the Town Council made a “poor decision” and was
grossly negligent in initiating the relevant investigation. Id. at 957. But “‘deliberate indifference’
goes beyond mere or gross negligence.” Blanchard-Daigle v. Geers, 802 F. App’x 113, 116 (5th Cir.
2020) (per curiam) (unpublished). As a result, Defendant is entitled to summary judgment on this
issue.
2. Chief Kowalski’s Ratification
“[T]he Fifth Circuit has not relaxed the causation requirement of Monell in the ratification
context. Indeed, the Fifth Circuit appears to continue to require that an official policy be the moving
force for the constitutional violation even in the context of ratification.” Reitz v. City of Abilene, No.
1:16-CV-0181-BL, 2017 WL 3046881, at *26 (N.D. Tex. May 25, 2017) (internal citation omitted)
(first citing Camacho v. City of El Paso, No. EP-15-CV-00318-PRM-RFC, 2016 WL 3519662, at *13
(W.D. Tex. June 22, 2016); and then Milam, 113 F. App’x at 628), report and recommendation
adopted, No. 1:16-CV-181-C, 2017 WL 3034317 (N.D. Tex. July 17, 2017). It is under this precedent
that Plaintiff argues that “Chief Kowalski’s ratification . . . was made with at least deliberate
indifference” (Dkt. #74 at p. 32 (citation modified for readability)).
For this analysis, the Court assumes arguendo that Plaintiff has produced sufficient
evidence to support ratification and addresses Plaintiff’s contention with reference to its prior
Memorandum Opinion and Order. There, this Court recognized that, in the context of Plaintiff’s
claim against Chief Kowalski as an individual defendant, “Plaintiff has not alleged sufficient facts
for the Court to reasonably infer that [Chief] Kowalski acted with deliberate indifference” towards
Plaintiff’s constitutional rights (Dkt. #35 at p. 14). It went on to note that “even construing
Plaintiff’s factual allegations in the most favorable light, [Chief ] Kowalski’s order and ratification
of Plaintiff’s investigation may, at worst, have been grossly negligent, but controlling caselaw
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explicitly rejects that mental state as deliberately indifferent” (Dkt. #35 at p. 14). Because the
“deliberate indifference” standard is shared between both supervisor liability and Monell liability
in this context, the Court’s previous finding suggests that Chief Kowalski’s involvement in the
investigation cannot satisfy the requisite causation element. See Est. of Davis, 406 F.3d at 381 n.25
(noting that the Fifth Circuit has adopted the “standard of municipal liability— that is, requiring at
least deliberate indifference—for supervisory liability”). While the Court noted the “inherent
difficulty of proving deliberate indifference at the [12(b)(6)] stage,” the Court declines to change
course under Plaintiff’s current factual presentation (Dkt. #35 at 14 n.7).
Crucial to the Court’s decision is the state of Plaintiff’s summary judgment evidence,
which falls far short of sufficiently supporting Chief Kowalski’s deliberate indifference. Neither
Chief Kowalski’s statements in Boothe’s annual report nor his emails to Town employees are
sufficient to indicate a “conscious choice to endanger constitutional rights.” Id. at 383. The facts
presented, including Chief Kowalski’s email to Town employees asking them to “assist” in the
investigation by making efforts “to identify this individual, should any documents have to be
released,” grounds the police chief’s investigation in his belief that Plaintiff had committed the
crime of impersonation. For instance, Chief Kowalski would initially inform Boothe, the individual
conducting the investigation, “I don’t know what we got going on here, please look into it”
(Dkt. #74-8 at 3). The police chief testified that he was not frequently involved in the investigation,
and received updates “[w]hen there was like a milestone that occurred during the
investigation . . . . Milestones included things like the meeting with the district attorney’s office
[when] they felt like . . . we had probable cause for impersonating a public servant” (Dkt. #74- 8 at
pp. 6–7). Chief Kowalski’s testimony also indicates that he was not involved in the day-to-day
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operation of the investigation, that he did not give his opinion on how to proceed with the
investigation, and that he did not even go so far as to discuss the arrest warrant with Boothe
(Dkt. #70 at p. 6). Plaintiff’s summary judgment evidence indicates that Chief Kowalski’s actions
were arguably “inept, erroneous . . . or negligent,” but these mental states “do not amount to
deliberate indifference” regarding the conclusion of the investigation and the resulting alleged
violation of Plaintiff’s First or Fourth Amendment constitutional rights. Murray v. LeBlanc, 629 F.
Supp. 3d 437, 463 (M.D. La. 2022). As a result, the Court finds that Plaintiff has not identified facts
sufficient to bring the question of Chief Kowalski’s ratification of a “policy” to a jury, and that
Prosper is therefore entitled to summary judgment on this issue.
III. Plaintiff’s 14th Amendment Claim
In its Motion, Prosper fails to directly reference Plaintiff’s Fourteenth Amendment Claim,
yet argues that “Plaintiff does not have a viable and cannot prove any Monell claim” (Dkt. 70 at
p. 2). Therefore, the Court will address Plaintiff’s Fourteenth Amendment Claim against the
Town. See Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016) (“Rule 56(a)
contemplates a filed motion, but a district court may grant summary judgment without a motion
provided the party opposed has notice.”); Evanston Ins. Co. v. Kinsale Ins. Co., No. 7:17-CV-327,
2018 WL 4103031, at *12 (S.D. Tex. July 12, 2018) (ruling on claims that were not expressly raised,
as “[a]lthough neither party directly addressed these claims, Defendant’s motion for summary
judgment urges the Court to dismiss all of Plaintiff’s claims.”).
“A claim under the Fourteenth Amendment can proceed under substantive due process or
procedural due process.” Tarmo v. Noseff, No. 4:25-CV-109, 2026 WL 788827, at *21 (E.D. Tex.
Mar. 20, 2026) (citing Steward v. City of New Orleans, 537 F. App’x 552, 556 (5th Cir. 2013) (per
curiam) (unpublished)). Plaintiff’s complaint vaguely identifies a “depriv[ation]” of his “rights
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guaranteed by the First, Fourth and Fourteenth Amendments” which entitle him to “actual and
compensatory damages against Defendant Town of Prosper under 42 U.S.C. § 1983 in an amount
to be proven at trial” (Dkt. #1 at p. 29).
Plaintiff cannot recover under a substantive due process theory, as a “resort to a generalized
remedy under the Due Process Clause is inappropriate where a more specific constitutional
provision provides the rights at issue.” Arnold v. Williams, 979 F.3d 262, 270 (5th Cir. 2020). “In
those situations, the specific provision, ‘not the more generalized notion of ‘substantive due
process,’ better guides analysis of plaintiff’s claims.’” Id. (quoting Albright v. Oliver, 510 U.S. 266,
273 (1994)). As the allegations of Plaintiff’s Fourteenth Amendment claim are coextensive with his
First and Fourth Amendment claims, he cannot bring a generalized claim under the Fourteenth
Amendment.
Plaintiff’s allegations also preclude his recovery on a procedural due process theory, as his
complaint lists his Fourteenth Amendment claim as “a direct and proximate cause of the actions
of Defendant Town of Prosper’s unconstitutional official policy” (Dkt. #1 at p. 29). Because
Plaintiff’s evidentiary showing was insufficient to identify an unconstitutional Monell policy or
ratification sufficient to carry a Monell claim, his Fourteenth Amendment claim is rightly dismissed
by Prosper’s summary judgment challenge.
IV. Declaratory Relief
The Court finds that Plaintiff’s declaratory judgment claim is duplicative of his Monell
theory and thus not legally viable under the circumstances. “The Declaratory Judgment Act is
remedial only.” Collin County v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d
167, 170 (5th Cir. 1990). “A party’s legal interest must relate to an actual ‘claim arising under federal
law that another asserts against him . . . .’ ” Id. (quoting Lowe v. Ingalls Shipbuilding, 723 F.2d 1173,
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1179 (5th Cir. 1984)). Because the claims against Prosper will be dismissed under the terms of this
Memorandum Opinion and Order, Prosper is entitled to summary judgment against Plaintiff on his
request for declaratory relief.
V. Discovery
Plaintiff asks that, in the event the Court sees fit to grant Prosper’s Motion, the Court
permit him additional time for discovery under Rule 56(d). “If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” FED. R. CIV. P. 56(d).
While “[s]uch motions are broadly favored and should be liberally granted,” Plaintiff is
expected to make two showings. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (quoting
Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)). First, he must “demonstrate how
additional discovery will create a genuine issue of material fact.” Jacked Up, L.L.C. v. Sara Lee
Corp., 854 F.3d 797, 816 (5th Cir. 2017). Second, he must establish that he has “diligently pursued
discovery.” Id.
In support of his request, Plaintiff has attached a signed declaration alleging that the
expected discovery would assist it in highlighting the “evidence of a genuine issue of material fact
regarding (i) a decision that was officially promulgated and ratified by the municipal policymakers
and (ii) that the decision was the moving force behind the violation” (Dkt. #74 at pp. 34–35).
Plaintiff argues that a recent production of documents (along with the absence of a privilege log)
indicates that “there is more discovery the Town is improperly withholding,” and claims that now
is the proper time to “reopen the depositions of the fact witnesses regarding the issues implicated
in this new and late production” (Dkt. #74 at p. 35). The Court cannot arrive at a similar conclusion.
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Plaintiff first served requests for production on Prosper on October 2, 2025 (Dkt. #75 at
p. 2). Throughout the discovery period, Plaintiff received “thousands of pages of documents,
emails, and body camera videos” (Dkt. #78 at p. 9). Plaintiff objected to certain responses to his
request for production on December 9, 2025, but was satisfied with Prosper’s correspondence on
January 15, 2026 indicating that the Town had produced all records in its possession pertaining to
the challenged responses (Dkt. #75 at pp. 4–5). Nevertheless, Plaintiff alleges he discovered new
information pertaining to the way the Town had conducted searches for documents on March 10,
2026 during the deposition of a witness (Dkt. #75 at p. 7). As a result of that deposition, Plaintiff
adopted the belief that the Town had not, in his view, utilized sufficient terms in its search for
documents. As a result, Plaintiff requested that the Town conduct a new search using different
terms on March 11, 2026 (Dkt. #75 at p. 8). Prosper agreed, but warned Plaintiff that “documents
likely would not be ready by Friday, March 13, 2026, as requested” (Dkt. #75 at p. 9). On that date,
Prosper informed Plaintiff that the search had yielded thousands of email chains (Dkt. #75 at p. 9).
It was from this search that Plaintiff received 1,200 pages of discovery on March 17, 2026, one day
before his response was due. Although this trove of discovery was arguably related to Plaintiff’s
initial request for production, it appears to largely be the result of an entirely new discovery request
made on March 11, 2026—less than a week prior to the filing of Plaintiff’s response (Dkt. #78 at
p. 10). From these facts, the Court believes that Plaintiff has had “ample prior opportunity” to
conduct discovery to form the factual basis of his Monell claims. Zavala v. Harris County, No.
22- 20611, 2023 WL 8058711, at *2 (5th Cir. Nov. 21, 2023) (“To the extent that Zavala argues these
claims should be maintained because she has yet to obtain discovery, the district court determined
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correctly that she had ample prior opportunity to do so. Thus, we agree with the district court that
Zavala failed to state a Monell claim against the County.”).
Additionally, counsel for both parties appeared before the Court to argue a similar discovery
concern on April 6, 2026. At that conference, Plaintiff claimed that Prosper’s recent production of
new documents necessitated a modification to the closed discovery deadline and the re-deposing
of four witnesses, including Chief Kowalski. Notably, however, Plaintiff did not point to a specific
email or reference any other fact tending to support the requests for re-deposition, and Prosper
claimed that Plaintiff was made aware of the search parameters as late as December 2025. The
Court ultimately denied Plaintiff’s request, finding that the proposed re- depositions were
unnecessary and that the case should continue forward as planned. Currently, the Final Pretrial
Conference is set for November 6, 2026, with jury selection and trial set to begin on Monday,
November 16, 2026 (Dkt. #106). Plaintiff’s request for further discovery at most has only
highlighted his preference to seek “needed, but unspecified, facts,” and has not identified why
specific discovery is likely to create a genuine issue of material fact regarding the issues which have
rendered summary judgment appropriate in this case. Stearns Airport Equip. Co., Inc. v. FMC Corp.,
170 F.3d 518, 535 (5th Cir. 1999).
CONCLUSION
It is therefore ORDERED that Defendant Town of Prosper’s Motion for Summary
Judgment (the “Motion”) (Dkt. #70) is hereby GRANTED.
It is further ORDERED that all claims against Defendant Town of Prosper are hereby
DISMISSED with prejudice.
It is further ORDERED Defendant Town of Prosper is hereby DISMISSED.
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IT IS SO ORDERED.
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