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

AMENDED MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Lt. Boothe and Chief Kowalski’s Motion to
Dismiss
1
(Dkt. #8). Having considered the Motion and the relevant pleadings, the Court finds that
the Motion should be GRANTED in part and DENIED in part.
BACKGROUND
I. Factual Summary
This is a Section 1983 case in which Plaintiff sued Defendants Lt. Paul Boothe, Chief Doug
Kowalski, and the Town of Prosper (“the Town”) for violating the First and Fourth Amendments
to the U.S. Constitution. Plaintiff alleges that Defendants violated the Fourth Amendment by
illegally investigating, arresting, and indicting him for the felony criminal offense of impersonating
a public servant under T
EX. PENAL CODE § 37.11(a)(1) (Dkt. #1 at ¶ 65). Plaintiff further alleges
Defendants violated the First Amendment by retaliating against him for lawfully requesting
records under the Texas Public Information Act (“TPIA”) (Dkt. #1 at pp. 20–24).

1
Defendant Town of Prosper also filed a Motion to Dismiss on different grounds (See Dkt. #9). The Court will
consider that Motion separately.
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To set the stage, Defendant Kowalski is the Chief of the Town police department (Dkt. #1
at ¶ 8). Defendant Boothe once worked in the department as a Lieutenant (Dkt. #1 at ¶ 7 ). Plaintiff
is a former software application developer whose wife previously worked as a 911 communications
manager and head of dispatch for the Town (Dkt. #1 at ¶¶ 13–14). Changes in the Town police
department’s organization and staffing negatively affected Plaintiff’s wife, prompting Plaintiff to
develop a plan to draw public attention toward the Town police department’s shortcomings (Dkt.
#1 at ¶¶ 17, 20). That plan involved using TPIA requests to show that case clearance rates were
low under the Town police department’s current leadership (Dkt. #1 at ¶ 20). Accordingly, on
October 14, 2020, Plaintiff filed three TPIA requests to the Town and its police department via
the Town’s online portal (Dkt. #16 at p. 9; Dkt. #8-3 at p. 2). The first two requests, filed within
minutes of each other, sought information regarding the police department’s organizational
structure, personnel, and criminal investigation statistics (Dkt. #16 at p. 8; Dkt. #1 at ¶¶ 24–25).
The third request, filed two weeks later, was incomplete
2
and therefore warranted no response
(Dkt. #16 at p. 8; Dkt. #8-5 at p. 3).
To submit these requests, Plaintiff corresponded with Town officials using a parody email
account
3
signed by “Geoff Hodges,” a pseudonym that closely resembled the name of Town
Councilmember Jeff Hodges (Dkt. #16 at p. 8). Plaintiff made the tongue-in-cheek reference to the
Town government—a decision that “reflected [his] desire to hold the town
accountable”—because its online forms required a name and email to process his requests

2
According to Defendants, Plaintiff’s third request was incomplete because “it state[d] ‘I had submitted a report to
the Prosper Police Department:” with no further detail (Dkt. #8-5 at p. 3). Plaintiff concedes as much (See Dkt. #16
at p. 2).
3
Plaintiff used the email address “prospercitycouncil@gmail.com.” This is a parody, according to Plaintiff, because
Prosper is a town, not a city (Dkt. #16 at p. 9).
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(Dkt. #16 at p. 9; Dkt. #1 at ¶¶ 12, 29). Plaintiff was also “afraid that asking for [public] records
using his real name could prompt some form of retaliation” (Dkt. #16 at p. 8; Dkt. #1 at ¶ 27). For
instance, Plaintiff thought that making such requests could have jeopardized his wife’s career
because she worked for the Town and had close working relationships with its police officials (Dkt.
#15 at p. 8; Dkt. #1 at ¶¶ 14–15).
On October 27, 2020, the Town responded to Plaintiff’s requests by providing links to
existing documents and explaining that it was not required to compile statistics or create new
documents (Dkt. #1 at ¶ 32). On November 2, 2020, Plaintiff used the pseudonymous account to
follow up with an unsigned email in which he explained his desire to remain anonymous and
expressed dissatisfaction with the Town’s response (Dkt. #1 at ¶ 34). Plaintiff sent this email to
several Town officials, including Councilmember Jeff Hodges (Dkt. #1 at ¶ 34; Dkt. #8-15).
Shortly thereafter, Defendants began to investigate Plaintiff’s emails by requesting that
Google preserve the pseudonymous account (Dkt. #1 at ¶¶ 40–41, 43; Dkt. #8-2). The next day,
Plaintiff submitted another TPIA request with a different email address
4
under a new alias, “Sam
Kingston” (Dkt. #1 at ¶ 41). Through it, he requested more police records, including the personnel
file for Devin Reaves, the Town Public Information Clerk (Dkt. #1 at ¶ 41; Dkt. #8 at p. 6). Again,
Defendants asked Google to preserve the second pseudonymous account (Dkt. #1 at ¶ 43).
By March 2021, Defendant Boothe prepared and submitted two search warrant affidavits
for records associated with the two email addresses (Dkt. #1 at ¶¶ 44–45). Defendant Boothe
presented those affidavits to Judge Benjamin Smith of the 380th District Court of Collin County,

4
This time, Plaintiff used the email address “samk38043@gmail.com.” His reason for selecting this name is unclear.
Neither party contends that it was intended to have some parodic effect.
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who issued corresponding warrants and an Order Precluding Subscriber Notification (Dkt. #1 at
¶¶ 45–58; Dkt. #8-4; Dkt. #8-5). The information obtained through these warrants led law
enforcement to identify Plaintiff as the individual behind both pseudonymous identities and email
accounts ( Dkt. #1 at ¶¶ 59–60; Dkt. #8-5).
On July 19, 2021, Defendant Boothe submitted affidavits and a complaint seeking arrest
and search warrants for Plaintiff (Dkt. #1 at ¶ 65; Dkt. #8-5). These affidavits referred to Plaintiff’s
use of “Geoff Hodges” and his November 2, 2020 email acknowledging that “[he] did use a false
name and email account when requesting information from the city” (Dkt. #8-3; Dkt. #8-4; Dkt.
#8-15 at p. 1). Defendant Boothe presented the affidavits to Judge Smith, who concluded they gave
rise to probable cause to search the contents of Plaintiff’s email accounts and arrest Plaintiff.
Accordingly, Judge Smith issued both a search warrant and an arrest warrant for Plaintiff’s
residence (Dkt. #1 at ¶¶ 66–81; Dkt. #8-6; Dkt. #8-8). On July 20, 2021, Defendant Boothe
arrested Plaintiff and seized items from his home (Dkt. #1 at ¶ 83).
On November 4, 2021, a Collin County Grand Jury indicted Johnson for impersonating a
public servant under T
EX. PENAL CODE § 37.11(a)(1), finding that Plaintiff intended to induce
Town employees to submit to his pretended authority as “Geoff Hodges” when he requested
public records under the TPIA (Dkt. #1 at ¶ 83; Dkt. #8-12). On November 7, 2022, however,
Plaintiff moved to quash the indictment, arguing that it failed to state an offense and that the First
Amendment to the United States Constitution protected his conduct (Dkt. #1 at ¶ 87). The
District Attorney did not oppose the motion, and the Collin County District Court dismissed the
indictment with prejudice that same day (Dkt. #1 at ¶¶ 87–88; Dkt. #8-14; Dkt. #8-16).
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II. Procedural History
Plaintiff filed suit for the alleged constitutional violations above. Specifically, Plaintiff’s
Complaint brings a claim for supervisory liability against Defendant Kowalski (Dkt. #1 at p. 26),
and claims for wrongful arrest, direct and retaliatory violations of free speech and the right to
petition, unlawful search and seizure, and declaratory judgment against Defendants Boothe and
Kowalski (Dkt. #1 at pp. 20, 22, 24). Plaintiff also brings a claim for municipal liability against
Defendant Town of Prosper (Dkt. #1 at pp. 28–29). On September 19, 2023, Defendants Boothe
and Kowalski filed their Rule 12(b)(6) Motion to Dismiss, arguing that Plaintiff’s claims did not
meet threshold plausibility requirements nor overcome Defendants’ qualified immunity (Dkt. #8
at p. 2 ). On the same day, Defendant Town of Prosper filed its Motion to Dismiss, stating that
Plaintiff’s Complaint does not sufficiently plead Monell liability, the only theory by which Plaintiff
claims municipal liability attaches (Dkt. #9 at p. 1). On October 24, 2023, Plaintiff filed his
Consolidated Response, contending that the Complaint plausibly alleged every claim against
Defendants Lt. Boothe and Chief Kowalski, all of which overcame Defendants’ qualified immunity
(Dkt. #16 at p. 8 ). Plaintiff’s Consolidated Response also argues that he stated a valid municipal
liability claim against Defendant Town of Prosper (Dkt. #16 at p. 48). On November 11, 2023,
Defendants Boothe and Kowalski filed their Reply (Dkt. #19). On November 21, 2023, Defendant
Town of Prosper filed its Reply (Dkt. #20). On May 9, 2024, Plaintiff filed a Notice of
Supplemental Authority in favor of his Response to Defendants’ Motion (Dkt. #21). On May 23,
2024, Defendants filed a Response to Plaintiff’s Notice of Supplemental Authority (Dkt. #22).
LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a
“short and plain statement . . . showing that the pleader is entitled to relief.” F
ED. R.
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C
IV. P. 8(a)(2). Each claim must include enough factual allegations “to raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint
fails to state a claim upon which relief can be granted. F
ED. R. CIV. P. 12(b)(6). When considering
a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the
plaintiff’s complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City
of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine whether the
complaint states a claim for relief that is plausible on its face. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the well-pleaded facts do not
permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—’that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quoting F
ED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts
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to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or
elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.” Id. at 678 (quoting Twombly, 550 U.S. at 570).
ANALYSIS
The events underlying this litigation stem from Plaintiff’s use of pseudonyms to file TPIA
requests and the Town officials’ subsequent, failed prosecution of Plaintiff for criminal
impersonation. Defendants’ Motion introduces several issues for the Court to analyze, namely:
1. Whether Plaintiff pleaded any plausible claims against Defendant Kowalski
for which there are no legally significant allegations of Defendant
Kowalski’s personal liability, or to which “Supervisory Liability” applies;
2. Whether Plaintiff pleaded a plausible claim for declaratory judgment relief;
3. Whether Plaintiff pleaded a plausible claim allowing recovery of punitive
damages against Defendants Boothe and/or Kowalski;
4. Whether Plaintiff has pleaded any plausible Fourth Amendment illegal
search or unlawful arrest claims against Defendants Boothe and/or
Kowalski that overcome their qualified immunity;
5. Whether Plaintiff pleaded any plausible claims against Defendants Boothe
and Kowalski that survive the independent-intermediary doctrine; and
6. Whether Plaintiff has pleaded a plausible First Amendment retaliation claim
against Defendants Boothe and Kowalski that overcomes their qualified
immunity.
(See Dkt. #8 at p. 2; Dkt. #16 at pp. 7–8).
These issues fall into two categories: Items 2, 3, and 5 hinge on the sufficiency of Plaintiff’s
Complaint, whereas Items 1, 4, and 6 relate to qualified immunity. For expediency’s sake, the
Court will first address the issues that relate to pleading sufficiency, as they require a simpler
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analysis. Then, the court will examine the more complex issue of whether qualified immunity bars
any of Plaintiff’s claims.
As an initial matter, the Court must address the exhibits Defendants submitted alongside
their Motion. In general, those exhibits are documents associated with Plaintiff’s criminal
investigation and prosecution. Specifically, the exhibits include: document preservation requests
that Defendants submitted to Google (Dkt. #8-1; Dkt. #8-2), search warrants and returns (Dkt.
#8-3; Dkt. #8-4; Dkt. #8-8); an arrest warrant for Plaintiff (Dkt. #8-6); affidavits underlying
warrant applications (Dkt. #8-5; Dkt. #8-7); grand jury subpoenas (Dkt. #8-9; Dkt. #8-10; Dkt.
#8-11); Plaintiff’s Indictment (Dkt. #8-12); a jail records search (Dkt. #8-13); a docket sheet for
Plaintiff’s criminal action (Dkt. #8-14); and Plaintiff’s email (Dkt. #8-15). Defendant’s Motion
requests that the Court “consider and/or take judicial notice” of each (Dkt. #8 at p. 3). Plaintiff
objects, arguing first that that the Court may not take judicial notice of those exhibits’ contents
(Dkt. #16 at p. 8). Plaintiff also objects because, even if the Court can consider those exhibits, the
Court “may not accept Defendants’ characterizations of those records” (Dkt. #16 at pp. 8–9).
The Court will take judicial notice of Defendants’ exhibits to the extent that they underpin
the Court’s analysis. The general rule at the Rule 12(b)(6) stage is that the Court may not consider
documents extrinsic to (i.e., documents that “go outside” of) Plaintiff’s Complaint. See Rodriguez
v. Rutter, 310 Fed. App’x 623, 626 (5th Cir. 2009); see also Baker v. Puntal, 75 F.3d 190, 196 (5th
Cir. 1996). In the Fifth Circuit, however, courts may consider additional documents, such as
Defendants’ exhibits. See Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010) (establishing that, on a motion to dismiss, “[t]he court’s review is limited to the
complaint, any documents attached to the complaint, and any documents attached to the motion
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to dismiss that are central to the claim and referenced by the complaint”). Thus, the Court takes
judicial notice of Defendants’ exhibits that are “central” to the claims at issue and featured in
Plaintiff’s Complaint. See id.
I. Supervisory Liability
Setting that threshold dispute aside, the Court now turns to the first substantive matter:
whether Plaintiff has stated a claim for supervisory liability against Defendant Kowalski (See Dkt.
#1 at p. 26). Defendants claim that Plaintiff has not. And even if Plaintiff did, Defendants argue
that qualified immunity bars this claim (Dkt. #8 at pp. 21, 23). As explained below, the Court agrees
with Defendant in part. Plaintiff’s Complaint does not state a claim for supervisory liability. See
infra at 10–15. Accordingly, it must be dismissed.
5

A. Supervisory Liability Legal Standard
To state a claim for supervisory liability, a plaintiff must plead that a supervisor “either (1)
affirmatively participated in the acts causing the constitutional deprivation, or (2) implemented
the unconstitutional policies, or (3) failed to train his subordinates regarding what resulted in the
violation.” Bates v. Normand, 703 F. Supp. 3d 775, 788 (W.D. La. 2023) (cleaned up). Plaintiff only
alleges a claim for supervisory liability under the first category, also known as the “personal
involvement” theory. To state a claim for that species of supervisory liability, “a plaintiff must
show either the supervisor personally was involved in the constitutional violation or that there is a
sufficient causal connection between the supervisor’s conduct and the constitutional violation.”
Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003). When a supervisor issues an order to a
subordinate that results in a constitutional violation, that is enough to establish the necessary

5
Because Plaintiff did not plead each element of a supervisory liability claim, the Court need not address the question
of whether qualified immunity bars it.
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personal involvement for a supervisory liability claim. See Pena v. City of Rio Grande City, 879 F.3d
613, 621 (5th Cir. 2018) (“A supervisor [] issuing a direct order to a subordinate to use excessive
force demonstrates both the necessary action and causality for a supervisory-liability claim.”).
The causal connection is established if the “defendant set in motion a series of events that
would foreseeably cause the deprivation of the plaintiff’s constitutional rights.” Reagan v. Burns,
No. 3:16-CV-2590-G-BH, 2019 WL 6733023, at *9 (N.D. Tex. Oct. 30, 2019) (citing Morris v.
Dearborne, 181 F.3d 675, 672 (5th Cir. 1999)). The “misconduct of the subordinate must be
affirmatively linked to the action or inaction of the supervisor.” Southard v. Tex. Bd. of Crim.
Justice, 114 F.3d 539, 550 (5th Cir. 1997).
A “supervisory official is held to a standard of deliberate indifference, which requires proof
that the supervisor disregarded a known or obvious consequence of his action” that amounted to
a violation of Plaintiff’s constitutional rights. Evett, 330 F.3d at 689 (internal quotations omitted).
“Deliberate indifference is a stringent standard of fault . . . .” Brown v. Callahan, 623 F.3d 249, 255
(5th Cir. 2010). “Actions and decisions by officials that are merely inept, erroneous, ineffective,
or negligent do not amount to deliberate indifference and do not divest officials of qualified
immunity.” Murray v. LeBlanc, 629 F. Supp. 3d 437, 463 (M.D. La. 2022) (quoting Alton v. Tex.
A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)).
B. Plaintiff has not plausibly pleaded supervisory liability under a theory of
personal involvement as to Defendant Kowalski.
Plaintiff has not pleaded sufficient facts regarding Defendant Kowalski’s supervisory
liability to survive a motion to dismiss. Defendant Kowalski contends that Plaintiff did not plausibly
allege Defendant Kowalski’s involvement in any activities purported to have infringed on
Plaintiff’s constitutional rights (Dkt. #8 at p. 15). Although Defendant Kowalski concedes that he
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was the Town Police Chief at the time of the alleged constitutional violations, he argues that merely
being Chief does not give rise to supervisory liability where, as here, the Chief did not apply for
Plaintiff’s warrants and subpoenas, nor became involved in Plaintiff’s arrest or later indictment
(Dkt. #8 at p. 15). Defendant Kowalski also asserts that Plaintiff’s Complaint did not plead a
sufficient causal connection between his conduct and the alleged constitutional violation (Dkt. #8
at p. 15). Specifically, he argues that Plaintiff’s Complaint does not allege “any personal
involvement of [Defendant] Kowalski in any legal[ly] significant aspect of this case” (Dkt. #8 at
p. 15). Plaintiff counters that its Complaint adequately demonstrates Defendant Kowalski’s overt
participation in the constitutional violation by alleging that he directed Defendant Boothe to
conduct the investigation (Dkt. #16 at p. 47).
The parties’ arguments center on whether and to what extent Defendant Kowalski directly
participated in Plaintiff’s arrest (See Dkt. #8 at p. 15; Dkt. #16 at p. 47). But their arguments put
the cart before the horse. In the Court’s view, Plaintiff’s fate at the 12(b)(6) stage depends on the
threshold sufficiency of his allegations regarding Defendant Kowalski’s deliberate indifference in
ratifying the arrest. See Evett, 330 F.3d at 689. Because Plaintiff’s Complaint pleads perfunctory
facts related to Defendant Kowalski’s deliberate indifference, the Court cannot find that Plaintiff
pleaded enough to satisfy a necessary element of the supervisory liability claim that Plaintiff
pursues (See Dkt. #1 at ¶¶ 97, 132–33). The claim must therefore be dismissed. Still, the Court will
address each element of Plaintiff’s supervisory liability claim in turn.
The first element is Defendant Kowalski’s personal involvement. Evett, 330 F.3d at 689.
As to that element, the Court concludes that Plaintiff pleaded sufficient facts to show that
Defendant Kowalski was personally involved in Plaintiff’s arrest. Plaintiff pleaded that Defendant
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Kowalski set in motion a series of events that would foreseeably cause the constitutional violations
of which Plaintiff complains (See Dkt. #1 at ¶¶ 38–39). See Reagan, 2019 WL 6733023, at *9.
Specifically, Plaintiff alleges that Defendant Kowalski directed Defendant Boothe to investigate
Plaintiff’s TPIA requests (Dkt. #1 at ¶ 38) (“[T]he Prosper Town Council . . . officially directed
PPD Chief Kowalski to begin an investigation into Plaintiff’s identity”). Defendant Kowalski also
directed Defendant Booth to communicate with Town Council and to prepare to prosecute the
author of those requests (Dkt. #1 at ¶ 39 (“Chief Kowalski . . . ordered Lt. Boothe—as then-head
of the Criminal Investigations Division—to conduct an investigation into the ‘Geoff Hodges’
requests in order to identify and prosecute the person behind the requests.”).
The next element is causation. Evett, 330 F.3d at 689; Reagan, 2019 WL 6733023, at *9. As
with the first element, Plaintiff has pleaded sufficient facts to satisfy the second element. As
Plaintiff argues, by ordering Defendant Boothe to investigate Plaintiff, Defendant Kowalski
inserted himself into the causal chain of events that Plaintiff claims violated his constitutional rights
(Dkt. #1 at ¶ 131). The Court agrees. See Evett, 330 F.3d at 689; Reagan, 2019 WL 6733023, at *9.
The third and final element is deliberate indifference. Evett, 330 F.3d at 689. In analyzing
whether Plaintiff’s Complaint states sufficient facts to satisfy this element, the viability of
Plaintiff’s claim unravels. Simply put, Plaintiff’s allegations of deliberate indifference do not meet
the “stringent standard” imposed by the law. Brown, 623 F.3d at 266. Plaintiff pleaded that
Defendant Kowalski was deliberately indifferent when he did not stop Defendant Boothe from
violating Plaintiff’s constitutional rights (Dkt. #16 at p. 48; Dkt. #1 at ¶ 129).
6
Plaintiff further

6
At first blush, this fact appears to prop up supervisory liability under a “failure-to-train” theory. See Murray, 629
F. Supp. 3d at 463. But Plaintiff expressly denies bringing a failure-to-train claim (Dkt. #16 at p. 48). Thus, the Court
is careful to assign this fact its proper weight only as it relates to supervisory liability through personal involvement,
rather than a failure-to-train-theory, because Plaintiff only brings a personal involvement theory of liability.
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pleaded that Defendant Kowalski knew such an omission would have functionally ratified an
investigation leading to the deprivation of Plaintiff’s rights (Dkt. #1 at ¶ 130) (“Defendant
Kowalski, with actual and constructive knowledge, approved and ratified the unlawful and
malicious investigation into Plaintiff’s exercise of his First Amendment rights by asking questions
of Town of Prosper officials and requesting public information.”). But these arguments do not
speak to deliberate indifference; instead, they speak to Defendant Kowalski’s degree of
involvement in the arrest. As explained above, the Court is satisfied that Plaintiff has adequately
pleaded direct involvement at this juncture. See supra at 10–15. The more pressing question,
however, is whether Defendant’s Kowalski’s acts were so deliberately indifferent that they
transcend even “inept, erroneous, ineffective, or negligent” behavior. Murray, 629 F. Supp. 3d at
463. That is where Plaintiff’s Complaint falls short.
Plaintiff’s Complaint alleges three times that Defendant Kowalski’s participation in the
arrest—no matter how indirect—showed deliberate indifference (Dkt. #1 at ¶¶ 97, 132, 133).
Twice, Plaintiff’s Complaint merely asserts that Defendant Kowalski acted deliberately
indifferent, but neither instance provides meaningful factual support (Dkt. #1 at ¶ 97 (“[Defendant
Kowalski] willfully arrested and detained Plaintiff . . . with . . . deliberate indifference to
[Plaintiff’s] constitutional rights”); Dkt. #1 at ¶ 133 (“Defendant Kowalski acted with . . .
deliberate indifference to Plaintiff’s rights because of his hostility towards members of the public
asking legitimate questions about the activities of the Prosper Police Department”)). And on the
other occasion, Plaintiff pleaded that Defendant Kowalski “acted at least with deliberate
indifference to Plaintiff’s constitutional rights” because he “affirmatively ordered and continued
to ratify [Plaintiff’s] lawful investigation . . .” (Dkt. #1 at ¶¶ 131–32) (cleaned up).
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That is not enough. Plaintiff’s Complaint might use the phrase “deliberate indifference”
several times over, but merely reciting the phrase like a legal incantation without accompanying
factual support has no effect. An assertion that one acted with deliberate indifference is, of course,
a legal conclusion. Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014) (“[an] allegation of
‘deliberate indifference’ is merely a legal conclusion.”). And at the 12(b)(6) stage, the Court must
ignore Plaintiff’s threadbare legal conclusions absent factual support. See Twombly, 550 U.S. at 555.
Thus, Plaintiff’s waving of the “deliberate indifference” wand is of no consequence here.
Further, even construing Plaintiff’s factual allegations in the most favorable light,
Defendant Kowalski’s order and ratification of Plaintiff’s investigation may, at worst, have been
grossly negligent, but controlling caselaw explicitly rejects that mental state as deliberately
indifferent. See Murray, 629 F. Supp. 3d at 460 (quoting Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375, 382–85 (5th Cir. 2005)) (“deliberate indifference requires a showing
of more than negligence or even gross negligence”). Because Plaintiff has not alleged sufficient
facts for the Court to reasonably infer that Defendant Kowalski acted with deliberate indifference,
7

then, the Court finds that Defendant Kowalski’s Motion should be GRANTED as to Plaintiff’s
supervisory liability claim.
8
Gonzalez, 577 F.3d at 603.
II. Plaintiff has pleaded a plausible claim for declaratory judgment relief as to
Defendant Boothe.
The Court now turns to whether Plaintiff has stated a plausible claim for a declaratory
judgment to survive Defendants’ 12(b)(6) Motion. He has as to Defendant Boothe. Defendants

7
Recognizing the inherent difficulty of proving deliberate indifference at this stage, the Court will grant leave for
Plaintiff to amend his Complaint with more facts showing deliberate indifference if further discovery renders such
a claim plausible. See Doe v. Ferguson, 128 F.4th 727, 738 (5th Cir. 2025) (Ho, J., concurring).
8
As a result, the Court need not analyze Defendant Kowalski’s entitlement to qualified immunity from Plaintiff’s
supervisory liability claim. See Flores, 381 F.3d at 395.
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correctly note that a declaratory judgment is available only if Plaintiff’s substantive claims survive
and succeed (Dkt. #8 at p. 30) (citing Reitz v. City of Abilene, No. 1:16-CV-0181-BU, 2021 WL
5095378, at *3 n. 3 (N.D. Tex. Oct. 1, 2021)). And Plaintiff concedes as much (Dkt. #16 at p. 51).
Of course, if Defendants did not violate Plaintiff’s constitutional rights, there can be no declaratory
action to the contrary. But the mere fact that the viability of one claim hinges on that of another is
no basis for dismissal. Because Plaintiff’s entitlement to declaratory judgment depends on the final
disposition of his First and Fourth Amendment claims, the Court will not dismiss those claims as
to Defendant Boothe while plausibly pleaded First and Fourth Amendment claims remain alive.
See infra Sections IV.D, V.B. To do so would be premature and without a basis in law. The same
cannot be said regarding Defendant Kowalski, however, as those claims are no longer live. See infra
note 9. Consequently, Defendants’ Motion to dismiss Plaintiff’s claim for declaratory judgment
should be GRANTED as to Defendant Kowalski and DENIED as to Defendant Boothe.
III. Plaintiff has pleaded plausible claims allowing recovery of punitive damages against
Defendant Boothe.
Next, the Court turns to the issue of punitive damages, which Plaintiff seeks to recover
against Defendants Boothe and Kowalski (Dkt. # 1 at p. 30). To do so, Plaintiff must prove that
Defendants acted willfully, intentionally, or with a reckless and callous indifference to Plaintiff’s
civil rights. Young v. City of New Orleans, 751 F.2d 794, 799 (5th Cir. 1985) (citing Smith v. Wade,
461 U.S. 30, 56 (1983)). And to survive Defendants’ 12(b)(6) Motion on this point, Plaintiff need
only have pleaded sufficient facts to show a factually plausible entitlement to punitive damages.
See Gonzalez, 577 F.3d at 603.
Defendants claim that that Plaintiff’s Complaint contains “no credible allegation that Lt.
Boothe and/or Chief Kowalski acted willfully, intentionally, or with a reckless and callous
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indifference to Plaintiff’s civil rights” that would entitle Plaintiff to punitive damages (Dkt. #8 at
p. 31). The Court agrees that Plaintiff is not entitled to such damages for Defendant Kowalski’s
conduct. See supra at 11–15. But Defendant Boothe misses the point. At this stage, the Court is
bound to accept as true all well-pleaded facts in Plaintiff’s Complaint—not to weigh factual
credibility. See MetroPCS v. MyNextCellular, LLC, No. 4:16-CV-00283-ALM, 2016 WL 8671928,
at *2 (E.D. Tex. Dec. 2, 2016). Viewing Plaintiff’s Complaint in the most favorable light, then, the
Court finds that Plaintiff has adequately pleaded entitlement to punitive damages insofar as his
First and Fourth Amendment claims against Defendant Boothe succeed (See Dkt. #1 at ¶¶ 68, 78,
97, 103, 105, 123, 133). Thus, Defendants’ Motion to dismiss Plaintiff’s claims for punitive
damages should be GRANTED only as to Plaintiff’s claims against Defendant Kowalski and
DENIED as to all others.
* * *
Having decided the discrete issues presented above, the remainder of the Court’s task is
weighty. That is, the Court must decide whether the crux of Plaintiff’s lawsuit—his First and
Fourth Amendment violation claims—is viable. The Court’s analysis of these questions proceeds
in two phases, each of which involves two questions. In the first phase, the Court addresses
Plaintiff’s claim that Defendant Boothe
9
violated his rights under the Fourth Amendment. That

9
Having found that Defendant Kowalski cannot be liable under a supervisory liability theory as currently pleaded,
the Court need not consider his potential liability under Plaintiff’s constitutional claims. The reason is two-fold:
Plaintiff’s Complaint sued Defendant Kowalski in his individual capacity alone (Dkt. #1 at p. 3), and all
constitutional claims against Defendant Kowalski treat him and Defendant Boothe as a single entity (See Dkt. #1).
Put differently, the only pleaded conduct unique to Defendant Kowalski that could plausibly support either
constitutional violation is that he, as a supervisor, ratified Plaintiff’s arrest (See, e.g., Dkt. #1 at ¶¶ 130–31).
Otherwise, Plaintiff treats them alike (See, e.g., Dkt. #1 at ¶¶ 95, 103, 121). But Defendant’s Kowalski’s actions as a
supervisor cannot prop up Plaintiff’s constitutional claims when, as here, the Court has found that supervisory
liability did not attach. See supra at 9–15.
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inquiry involves two questions: (1) whether Plaintiff pleaded sufficient facts to state a claim; and
(2) whether qualified immunity bars Plaintiff’s claim. In the second phase, the Court asks the same
questions, but as to Plaintiff’s First Amendment claims.
IV. Plaintiff’s Fourth Amendment Claims
The Court begins with the Fourth Amendment inquiry before it. In performing that
inquiry, the Court evaluates first whether Defendants had probable cause to support Plaintiff’s
arrest—a determination central to the qualified immunity analysis for Plaintiff’s Fourth
Amendment claim. Because the factual bases for the alleged constitutional violation overlap
substantially between the analyses for probable cause, Plaintiff’s Malley claim, and Plaintiff’s
Franks claim, the Court will address probable cause first. Resolving probable cause will clarify the
factual and legal context in which the arrest occurred, thereby informing the Malley and Franks
analyses that follow.
A. Probable Cause Legal Standard
“Under the Fourth Amendment, an arrest is reasonable if supported by probable cause.”
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006) (citing Atwater v. City of Lago Vista,
195 F.3d 242, 244 (5th Cir. 1999)). Thus, to support a claim for unlawful arrest, Plaintiff must show
that he was arrested without probable cause. Burge v. Parish of St. Tammany, 187 F.3d 452, 481 (5th
Cir. 1999). The “touchstone” of Fourth Amendment analysis “is always the reasonableness in all
the circumstances of the particular governmental invasion of a citizen’s personal security.”
Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977). “Reasonableness, of course, depends on a
balance between the public interest and the individual’s right to personal security free from
arbitrary interference by law officers,” id. at 109 (internal quotation marks omitted), and “is
measured in objective terms by examining the totality of the circumstances.” Ohio, 519 U.S. at 39.
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B. Defendant Boothe lacked probable cause to search and arrest Plaintiff for
impersonating a public official.
Plaintiff claims that Defendant Boothe violated his Fourth Amendment rights in three
ways: (1) wrongful arrest; (2) unlawful search; and (3) unlawful seizure (Dkt. #1 at pp. 20, 24).
Defendant Boothe disputes the allegations in full and contend that Plaintiff’s claim should be
dismissed because “probable cause for search of [Plaintiff’s] property then his arrest was
determined by a State District Court Judge and again when the Plaintiff was indicted by a Grand
Jury” (Dkt. #8 at p. 13). Plaintiff contends, however, that no reasonable officer could have found
probable cause to arrest Plaintiff “under a completely novel and untenable application of the
impersonation statute . . . to Plaintiff’s lawful request for records” (Dkt. #16 at p. 16). Defendant
Boothe characterizes Plaintiff’s argument as an academic attempt to reframe Plaintiff’s criminal
conduct by “contextualiz[ing]” it as parody, which flies in the face of real-world experience and
the law (Dkt. #19 at pp. 1–2). The Court agrees with Plaintiff. Under the totality of the
circumstances, neither Defendant Boothe nor any reasonable officer could have believed that
probable cause existed to arrest Plaintiff for violating Texas’s impersonation statute, T
EX. PENAL
CODE § 37.11(a)(1). See Jackson, 959 F.3d at 200–01.
The Fourth Amendment to the United States Constitution guarantees the right of all
persons to be free from unreasonable searches and seizures and demands that probable cause
substantiate all warrants. U.S. C
ONST. amend. IV. Probable cause exists when “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that [one] has committed, is
committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)
(citations omitted). In determining whether probable cause exists, courts consider the totality of
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the circumstances, including the expertise of law enforcement officials. See United States v. Garcia,
179 F.3d 265, 268 (5th Cir. 1999) (citing United States v. Ortiz, 422 U.S. 891, 897 (1975)); Ohio v.
Robinette, 519 U.S. 33, 39 (1996). To support a finding of probable cause, “a court is required only
to find a basis for an officer to believe to a ‘fair probability’ that an offense occurred.” Piazza v.
Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000) (citing United States v. Antone, 753 F.2d 1301, 1304
(5th Cir. 1985)).
In this case, a careful review of the search and arrest warrant affidavits indicates that a
reasonable officer could not have believed that Plaintiff violated, was about to violate, or was
violating TEX. PENAL CODE § 37.11(a)(1) for two reasons. First, Plaintiff did not actually
impersonate Jeff Hodges. Second, Plaintiff did not possess the specific intent to impersonate
anyone—let alone Jeff Hodges.
As to the first reason, Plaintiff did not actually impersonate Jeff Hodges under the letter of
Texas law. Nor is there any evidence to suggest that he was going to actually impersonate Jeff
Hodges. The first element of the offense requires that a person “impersonate[] a public servant.”
T
EX. PENAL CODE § 37.11(a)(1)(1). Impersonation in this context means that an alleged
impersonator takes on a “false assumption or pretension . . . that he is a public servant . . . .” Tovar
v. State, 777 S.W.2d 481, 489 (Tex. App.—Corpus Christi 1989, pet. ref’d), abrogated on other
grounds, Cornwell v. State, 471 S.W.3d 458, 464 (Tex. Crim. App. 2015)). Defendants claim that
Defendant Boothe’s affidavit sets out the reasons that Plaintiff actually impersonated Jeff Hodges.
As an example, Plaintiff requested public information using the pseudonymous email address,
“prospercitycouncil@gmail.com,” and “consistently identified himself using a modified name
resembling that of Town of Prosper Councilman Jeff Hodges, who was and still is, a current public
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servant and elected official . . .” (Dkt. #8 at p. 10; Dkt. #8-5 at p. 2). Plaintiff, on the other hand,
asserts that his conduct could not have amounted to actual impersonation because he did not
“adopt[] the actual identity of someone, typically by taking on their name, persona, title, or
distinguishing characteristics such as dress or official markings” (Dkt. #16 at p. 18).
The Court concludes that neither Defendant Boothe nor any reasonable officer with
comparable experience could have believed that Plaintiff actually impersonated Jeff Hodges for
three reasons, each of which are substantiated by Defendant Boothe’s own search warrant affidavit.
First, Defendant Boothe’s records check undercuts the argument that he could have reasonably
interpreted Plaintiff’s distorted name as a literal substitute for Jeff Hodges. The affidavit
acknowledges that “[a] records check of [Plaintiff’s modified] name through the Texas driver’s
license database showed that the name d[id] not exist,” which should have assuaged any reasonable
concerns Defendant Boothe may have had (Dkt. #8-4 at p. 2).
Second, Defendant Boothe’s affidavit states that “the Chief of Police-Doug Kowalski
contacted Councilman Hodges directly to clarify what records were being requested” (Dkt. #8-4
at p. 2). Tellingly, when Defendant Kowalski noticed the misspelling, he contacted Jeff
Hodges—not Plaintiff—to confirm the requestor’s identity (Dkt. #8 at p. 2). That fact alone, let
alone the totality of the affidavit’s facts, undermines Defendant Boothe’s argument on this point.
Third, Plaintiff “identified himself using a modified name resembling that of Councilman
Jeff Hodges,” not Jeff Hodges’ actual name (Dkt. #8-4 at p. 2). Defendant Boothe asserts that this
argument is of no moment, in part, because Plaintiff’s use of a slightly modified name illustrates
the “blatant stupidity which frequently accompanies criminal conduct,” and not any cleverness
on Plaintiff’s behalf (Dkt. #19 at p. 2). But Defendant Boothe cannot dispute that “Geoff” is not
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“Jeff.” Though they may sound the same, they are indisputably different as written words, the
medium through which Defendant Boothe and Town officials learned about Plaintiff’s
pseudonym. Put differently, “Geoff” and “Jeff” sound identical but read differently, yet
Defendant Boothe alleges that seeing “Geoff”, rather than hearing it, would have misled a
reasonable person to believe that Plaintiff was actually Jeff Hodges. That is a bridge too far. In the
Court’s view, Plaintiff’s altering of Jeff Hodges’ written name should have signaled a departure
from literal identity to any reasonable officer—certainly to one as experienced as Defendant
Boothe, who “has been a Licensed Peace Officer since 1984” (Dkt. #8 at p. 5).
Defendant Boothe’s argument that probable cause supported his conduct falls short for yet
another reason: no facts suggest that Plaintiff possessed the specific intent to impersonate Jeff
Hodges. The second element of the offense of impersonation under Texas law is that the defendant
“knowingly purports to exercise, without legal authority, any function of a public servant or of a
public office . . . .” T
EX. PENAL CODE § 37.11(a)(1)(2). In other words, the alleged impersonator
must possess the “specific intent for there to be a violation under Section 37.11(a)(1).” Cornwell,
471 S.W.3d at 464. And “while law enforcement personnel ‘may rely on the totality of facts
available to them in establishing probable cause, they also may not disregard facts tending to
dissipate probable cause.’” Evett, 330 F.3d at 688 (quoting Bigford v. Taylor, 834 F.2d 1213, 1218
(5th Cir. 1998)). As with the first element, the Court finds that neither Defendant Boothe nor any
reasonable officer under the circumstances could have concluded that Plaintiff harbored specific
intent to impersonate a public official. See Cornwell, 471 S.W.3d at 464.
The most compelling reason underlying this conclusion is that, by submitting requests
under the TPIA, Plaintiff exercised his right to use a lawful, public procedure and denounced any
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resemblance to Jeff Hodges shortly thereafter (Dkt. #16 at p. 10). To violate the statute, Plaintiff
must have attempted to wield Jeff Hodges’ official authority as a Councilmember, not the public
authority statutorily granted to Plaintiff. Defendant Boothe’s argument that submitting TPIA
requests under a pseudonym violates the statute fails, then, because those requests do not in any
way implicate, much less require, official authority. See Jackson v. Tex. S. Univ., No. CIV.A. H-11-
4092, 2013 WL 593412, at *7 (S.D. Tex. Feb. 14, 2013) (quoting City of Garland v. Dallas Morning
News, 22 S.W.3d 351, 355–56 (Tex. 2000)) (the “Texas Legislature enacted the TPIA in 1973 to
provide public access at all times to complete information about the affairs of government and the
official acts of public officials and employees.”) (quotations omitted) (emphasis added). And to
the extent that a reasonable officer could have mistakenly understood Plaintiff’s projected
authority, Plaintiff’s later email to the Town Council explaining that he used a “fake” name and
email address “to remain anonymous and protect [himself] from retaliation” should have clarified
that Plaintiff did not specifically intend to wield pretended official authority (Dkt. #1 at ¶ 34; Dkt.
#8-15 at p. 1). This is particularly true when, as here, Defendant Boothe should have noticed that
the email distinguishing Plaintiff’s actual identity from his projected identity was sent to Jeff
Hodges, the purported subject of the impersonation (Dkt. #1 at ¶ 34; Dkt. #8-15 at p. 1).
To Defendant Boothe’s point, the Court recognizes that its finding of no probable cause
contradicts that of the Collin County State District Court Judge and Grand Jury (Dkt. #8 at
pp. 18–19). And while “a magistrate judge’s determination on probable cause is given great
deference,” United States v. Trejo, 492 F. Supp. 2d 659, 674 (W.D. Tex. 2007), “[d]eference to
the magistrate . . . is not boundless.” Leon, 468 U.S. at 914. Under these circumstances, the Court
cannot find probable cause when the totality of the circumstances should have suggested to Town
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leadership and police that there was no “fair probability” that Plaintiff violated T
EX. PENAL
CODE § 37.11(a)(1)(a). See Piazza v. Mayne, 217 F.3d at 245–46.
C. Plaintiff has pleaded plausible claims against Defendant Boothe that survive
the independent-intermediary doctrine.
Having determined that Defendant Boothe lacked probable cause, the Court turns to the
first two of Plaintiff’s three claims rooted in the Fourth Amendment—Plaintiff’s Malley and
Franks claims. Defendant Boothe argues that both claims are fatally flawed. They are not. They
should survive 12(b)(6).
Fundamentally, a Malley and Franks claims concern the “independent intermediary”
doctrine, which defendants may invoke against such claims to avoid answering for conduct that
otherwise violates the Constitution. The independent intermediary doctrine applies to claims that
a search or detention occurred without legal process. Buehler v. City of Austin/Austin Police Dep’t,
824 F.3d 548 (5th Cir. 2016); Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010).
Under this doctrine, “‘if facts supporting an arrest are placed before an independent intermediary
such as a magistrate or grand jury, the intermediary’s decision breaks the chain of causation’ for
the Fourth Amendment violation.” Jennings v. Patton, 644 F.3d 297, 300-01 (5th Cir. 2011)
(quoting Cuadra, 626 F.3d at 813). But “[d]eference to the magistrate . . . is not boundless.” United
States v. Leon, 468 U.S. 897, 914 (1984). If “the deliberations of [the] intermediary were in some
way tainted by the actions of the defendant,” the defendant can still be liable. Wilson v. Stroman,
33 F.4th 202, 208 (5th Cir. 2022).
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A plaintiff may show that an independent intermediary was tainted by proving one of two
claims—a Malley or Franks claim.
10
See Malley v. Briggs, 475 U.S. 335 (1986); Franks v. Delaware,
438 U.S. 154 (1978); Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006) (holding that a plaintiff
cannot hold an officer liable under Malley when the officer has also committed a Franks violation).
A Malley claim alleges that an officer “tainted” an intermediary by submitting “[a] warrant
application [] so lacking in indicia of probable cause as to render official belief in its existence
unreasonable.” Malley, 475 U.S. at 344–45. Under those circumstances, qualified immunity would
no longer shield the officer from liability. Id.
A Franks claim, in contrast, alleges that an intermediary was tainted in evaluating an alleged
Fourth Amendment violation because “an officer intentionally, or with reckless disregard for the
truth, include[d] a false statement in a warrant application.” Kohler, 470 F.3d at 1113 (citing Franks,
438 U.S. at 154). To prove a Franks claim, a plaintiff must “show that the official’s malicious
motive led the official to withhold relevant information or otherwise misdirect the independent
intermediary by omission or commission.” McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017). At this
stage of litigation, “‘mere allegations of taint’ . . . may be adequate to survive a motion to dismiss
where the complaint alleges other facts supporting the inference.” Polnac v. City of Sulphur Springs,
555 F. Supp. 3d 309, 337 (E.D. Tex. 2021) (quoting McLin, 866 F.3d at 690).

10
The Court notes that, ultimately, Malley and Franks claims are mutually exclusive. That is, a Plaintiff may not
succeed on both a Malley and a Franks claim. See, e.g., Blake v. Lambert, 921 F.3d 215, 218 (5th Cir. 2019) (remarking
that a Franks claim is “incompatible” with a Malley claim). A Plaintiff remains free, however, to pursue both a
Malley and a Franks theory at the pleading stage. See, e.g., English v. City of Waco, Tex., No. 1:17-CV-219-ADA-JCM,
2024 WL 3982738, at *4–5 (W.D. Tex. July 15, 2024); Nevarez v. Coleman, No. CV 21-1855, 2022 WL 2528237, at
*5–6 (E.D. La. July 7, 2022).

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Here, Plaintiff has sufficiently pleaded allegations that the intermediaries in this case—a
State District Court Judge and Grand Jury—were tainted under both Malley and Franks theories
when evaluating probable cause for the offense of impersonating a public servant. See T
EX. PENAL
CODE § 37.11(a)(1). The elements of that offense are:
(a) A person commits [the] offense if the person:
(1) impersonates a public servant with intent to induce another to
submit to the person’s pretended official authority or to rely on the
person’s pretended official acts; or
(2) knowingly purports to exercise, without legal authority, any function
of a public servant or of a public office, including that of a judge and
court.
T
EX. PENAL CODE § 37.11(a)(1).
With this in mind, the Court will now consider each of the affidavits in turn—first as they
relate to Plaintiff’s Malley claim, then as they relate to Plaintiff’s Franks claim, to determine
whether the independent intermediary doctrine bars Plaintiff’s claims. It does not.
1. Plaintiff’s pleaded facts violate the Fourth Amendment.
Plaintiff claims that Defendants violated his Fourth Amendment right from unlawful search
and seizure when they:
(1) knowingly prepared a facially deficient probable cause affidavit;
(2) knowingly prepared a probable cause affidavit which withheld
exculpatory information;
(3) relying upon the facially deficient and misleading probable cause
affidavit, sought and obtained a facially deficient arrest warrant
under a pretextual application of Texas Penal Code § 37.11; and
(4) knowingly arrested and detained Plaintiff without probable cause
and against his will, based on a knowing or deliberately indifferent
wrongful application of Texas Penal Code § 37.11.
(Dkt. #1 at ¶ 96).
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Plaintiff’s Complaint adequately states a claim for a Fourth Amendment violation based on
unlawful arrest, search, and seizure at this juncture. Plaintiff alleged that Defendant Boothe
wrongfully obtained a search warrant for the contents of the “prospercitycouncil@gmail.com”
email address by attaching a facially deficient affidavit (Dkt. #1 at ¶ 45).
11
Plaintiff further alleged
that the deficient affidavit “omitted key, exonerative details which would have made a reasonable
official conclude that [Defendant] Boothe’s investigation was baseless” (Dkt. #1 at ¶ 45).
Specifically, the affidavit omitted that Plaintiff requested public government records under the
TPIA, creating a narrative that Plaintiff sought information to which he was not entitled (Dkt. #1
at ¶ 46). Plaintiff then explains in detail how Defendant Boothe withheld exculpatory information
by omitting language in the TPIA and any identified “pretended official authority” wielded by
Plaintiff (Dkt. #1 at ¶¶ 50–52). Plaintiff then asserts that Judge Smith relied on the deficient
probable cause affidavits to issue search and arrest warrants (Dkt. #1 at ¶¶ 52, 58). Finally, Plaintiff
pleaded that Defendant Boothe knowingly and unconstitutionally arrested and detained Plaintiff
after obtaining unlawful search and arrest warrants (Dkt. #1 at ¶¶ 65, 68). When viewing the facts
as alleged in the light most favorable to Plaintiff, as the Court is obligated to do, the Court finds
that Plaintiff has pleaded sufficient facts to reasonably infer a Fourth Amendment violation.
2. Plaintiff has plausibly pleaded a Malley claim.
As to the Malley claim, Plaintiff contends that the warrant affidavits reviewed by the State
District Judge lacked sufficient indicia of probable cause such that “a reasonably well-trained
officer in [the same] position would have . . . not applied for the warrant” (Dkt. #16 at p. 26)

11
The Court notes that the facts underpinning its probable cause, Malley, and Franks analyses are equally germane
here, as each analysis focuses on the absence of probable cause. See supra Sections IV.B –C. To avoid exhaustive
recitations of repetitive facts, however, the Court will point only to exemplary facts relating to each element of a
Fourth Amendment violation.
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(quoting Malley, 475 U.S. at 345). To start, the March 5, 2021 warrant affidavit, in Plaintiff’s view,
“provided insufficient factual detail to show a probability or substantial chance each element of the
offense was met” (Dkt. #16 at p. 27; Dkt. #8-2 at p. 2). That is because Defendant Boothe
acknowledged not only Plaintiff’s use of a modified name, “Geoff Hodges,” but also that the
pseudonym did not appear in the Texas driver’s license database, foreclosing the argument that
Plaintiff ever actually impersonated Council Member Jeff Hodges (Dkt. #1 at p. 15). Defendant
Boothe also relied on a fictitious email to support probable cause even though “the [Texas Public
Information Act] does not require that requestors supply any name at all, let alone a real name, to
make a request for public records” (Dkt. #1 at p. 16).
The March 8, 2021 search warrant affidavit for the contents of the fictitious
“samk38043@gmail.com” email is subject to similar criticism. Other than stating that the email
account “was created and is being used by the same unknown suspect in furtherance of the same
offense of Impersonating a Public Servant to continue the attempts to obtain official government
records,” the affidavit merely links the “samk38043” account to the “prospercitycouncil”
account—it does not explain how the former was used to further the offense committed by the
latter (Dkt. #16 at p. 28).
In the same vein, the July 19, 2021 search warrant affidavits never precisely explained “how
Plaintiff’s use of [the samk38043] email supported [Defendant Boothe’s] claim of probable cause”
(Dkt. #1 at p. 73; See Dkt. #8-5 at p. 4). As an example, Defendant Boothe “did not allege that the
names ‘Sam King’ or ‘Sam Kingston’ were the names of any current or former Town of Prosper
official, or that Plaintiff claimed any official authority when corresponding with any Town of
Prosper official using that name and email” (Dkt. #1 at p. 16).
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Finally, Plaintiff alleges that the indictment returned by the Collin County Grand Jury (the
other intermediary) was facially invalid because the judge presiding over Plaintiff’s criminal case
quashed the indictment (Dkt. #1 at p. 19). Plaintiff’s argument stands at odds with well-established
Fifth Circuit precedent on this point. See e.g., Harris v. Harris Cnty., No. CV H02-2698, 2006 WL
8451605, at *6 (S.D. Tex. Aug. 31, 2006) (“The fact that the criminal charges were subsequently
dismissed does not negate the existence of probable cause at the time of the arrest and preferring
of charges”); Allen v. Normand, No. CIV.A. 09-2825, 2009 WL 2448253, at *13 (E.D. La. Aug. 7,
2009) (finding that later dismissal of a charge does not vitiate probable cause at the time of arrest).
Construing the Complaint in the light most favorable to the Plaintiff, however, the Court
finds that Plaintiff has plausibly pleaded other facts sufficient to support a Malley claim. In other
words, the Court agrees with Plaintiff that a “reasonably well-trained officer” could not have
applied for the search and arrest warrants after a cursory review of the affidavits because they each
lacked sufficient indicia of probable cause. See Malley, 475 U.S. at 345. For instance, the March 5,
2021 affidavit’s statement that Plaintiff’s pseudonym did not appear in the Texas license database
should have alerted a reasonable officer as to its factual inadequacy (Dkt. #8-2 at p. 2). The March
8, 2021 search warrant affidavit did not explain how the “samk38043” account was used to meet
the elements of T
EX. PENAL CODE § 37.11(a)(1) (See Dkt. #8-4 at pp. 1–2). And the July 19, 2021
search warrant affidavit did not explain how any variant of the name “Sam King” could support
probable cause for impersonation of an official named “Jeff Hodges” (Dkt. #8-5 at p. 4). Each of
these affidavits, taken alone, should have signaled to a reasonable officer that probable cause was
lacking. But that is even more evident when taken together. Thus, Defendants’ Motion to dismiss
Plaintiff’s Malley claim should be DENIED.
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3. Plaintiff has plausibly pleaded a Franks claim.
As to the Franks claim, Plaintiff contends that Defendant Boothe “willfully included false
statements and omitted exonerative information essential to the probable cause analysis,” and that
“[r]eviewing the material omissions and falsehoods in Defendants’ affidavits reveals that
Defendant [Boothe] had no reasonable basis to believe Plaintiff possessed the requisite intent
necessary to make out a violation of Penal Code § 37.11(a)(1)” (Dkt. #16 at pp. 31–32). Just as with
Plaintiff’s Malley claim, the Court will consider each affidavit and the Collin County Grand Jury
indictment in turn.
The March 5 and 8, 2021 search warrant affidavits withheld the material fact that Plaintiff
lawfully sought public records under the TPIA (Dkt. #1 at ¶¶ 45–58; see Dkt. 8-3 at p. 2; Dkt. #8-4
at p. 2). Given that omission, the warrant affidavits cast Plaintiff’s attempt to request records as
unlawful when, in fact, Plaintiff followed a lawful process to request those records. These affidavits
then characterize Plaintiff—falsely, in Plaintiff’s view—as “caus[ing] agents of the Town to act
and cause the release of information upon this purported official capacity” (Dkt. #8-3 at p. 2; Dkt.
#8-4 at p. 2). But Plaintiff’s request did not require that he wield any “purported official capacity,”
and his requests could not “cause the release” of non-public information, as the TPIA allows
Plaintiff to access only information that is already public. T
EX. GOVT. CODE. ANN. § 552.101
(giving the public the right to obtain information in government records unless the “information
[is] considered to be confidential by law, either constitutional, statutory, or by judicial decision”)
The July 19, 2021 arrest warrant affidavit similarly omits material information. For
example, Defendant Boothe listed three public record requests indicating that Plaintiff
“consistently identified himself using a modified name resembling that of Town of Prosper
Councilman Jeff Hodges” (Dkt. #8-5 at p. 3; Dkt. #8-7 at p. 4). But the Plaintiff used this name
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only to file requests and never used the name again in correspondence with town officials (See Dkt.
#1 at ¶¶ 31, 48, 79). Moreover, Defendant Boothe withheld that Plaintiff voluntarily communicated
to the Town Council and leadership that he used this pseudonym to remain anonymous (See Dkt.
#1 at ¶ 78).
Along similar lines, Plaintiff contends that Defendant Boothe’s actions tainted the Collin
County Grand Jury’s November 4, 2021 indictment for the impersonation offense, leaving the
causal chain intact (Dkt. #16 at p. 40). In doing so, Plaintiff’s claims that Defendant Boothe was
“the sole witness produced to the grand jury,” to whom he testified regarding “the same basic,
tainted set of facts that he alleged in his previous warrant affidavits, which included the same
material omissions and misrepresentations that induced District Judge Smith to sign off on the
search and arrest warrants” (Dkt. #1 at ¶¶ 84–85). Plaintiff’s allegations are sufficient to plead
“tainting” that overcomes the independent-intermediary doctrine at this stage. See Wilson, 33
F.4th at 212 (quoting McLin, 866 F.3d at 690) (“‘mere allegations of taint’ . . . are adequate to
survive a motion to dismiss where the complaint alleges other facts supporting the inference”).
Not only has Plaintiff adequately pleaded that Defendant Boothe’s affidavits offered
falsehoods and material omissions in an attempt to obtain probable cause, but he also pleaded
sufficient facts that Defendant Boothe did so intentionally, knowingly, or with reckless disregard
for the truth (See Dkt. #1 at ¶¶ 45–58, 65–81, 96). Reviewing these allegations in the light most
favorable to Plaintiff, the Court concludes that Defendants’ Motion to dismiss Plaintiff’s Franks
claim should be DENIED.
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D. Plaintiff has pleaded a plausible Fourth Amendment claim against Defendant
Boothe that overcomes his qualified immunity.
Having resolved the preceding issues, the Court will now address whether Defendant
Boothe is entitled to qualified immunity, which entails a two-pronged inquiry. Saucier v. Katz, 533
U.S. 194, 201 (2001). The Court finds that Defendant Boothe is not entitled to qualified immunity
as to Plaintiff’s First Amendment claim or his Fourth Amendment claim.
12

1. Qualified Immunity Legal Standard
To establish liability under Section 1983, a plaintiff “must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 678. Public officials whose positions entail the exercise of
discretion may be protected by the defense of qualified immunity from personal liability. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts the defense of qualified immunity
and has established that the alleged actions were conducted pursuant to the exercise of his
discretionary authority, the burden then shifts to the plaintiff to rebut this defense. McClendon v.
City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
Courts have historically conducted a two-pronged analysis to determine whether a
defendant is entitled to qualified immunity. Saucier, 533 U.S. at 201. First, a court must determine
whether a “constitutional right would have been violated on the facts alleged.” Flores v. City of
Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Second, if a constitutional right was violated, a court
then determines whether “the defendant’s actions violated clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id.

12
On June 24, 2025, Plaintiff filed a Rule 60(a) Motion for Correction in ECF No. 25 (Dkt. #33), in which Plaintiff
pointed out a substantive typographical error in this sentence. The Court agreed that this sentence contained an
error and granted the Motion (See Dkt. #34). This sentence corrects that error as detailed in the Court’s Order.
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The law is clearly established if a reasonable official would understand that his conduct
violates the asserted right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The official’s subjective
motivation is irrelevant to the qualified immunity defense except as far as it is relevant to the
underlying constitutional claim. Crawford-El v. Britton, 523 U.S. 574, 588 (1998). A government
official’s conduct violates clearly established law when, at the time of the challenged conduct,
“[t]he contours of the right [are] sufficiently clear” such that every “reasonable official would
have understood that what he is doing violates that right.” Creighton, 483 U.S. at 640. The clearly
established inquiry does not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate. See id.; Malley, 475 U.S. at 341. The
Supreme Court instructs district courts “to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236–37.
2. Defendant Boothe violated Plaintiff’s clearly established rights.
The parties do not dispute that, under Fifth Circuit precedent, it is clearly established that
a plaintiff must show a lack of probable cause to succeed on claims for false arrest, unreasonable
seizure, and false imprisonment (See Dkt. #8 at p. 24; Dkt. #16 at pp. 15–16). See, e.g., Brown v.
Lyford, 243 F.3d 185, 189 (5th Cir. 2001); Haggerty v. Texas Southern University, 391 F.3d 653, 656
(5th Cir. 2004). Relatedly, it is “clearly established that a [person’s] Fourth Amendment rights
are violated if: (1) the affiant, in support of the warrant, includes a ‘false statement knowingly and
intentionally, or with reckless disregard for the truth’ and (2) ‘the allegedly false statement is
necessary to the finding of probable cause.’” Winfrey, 901 F.3d at 494 (quoting Franks, 438 U.S.
at 155–56) (cleaned up).
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Here, the parties do not cite factually analogous caselaw supporting the proposition that
the lineage of TPIA cases up to July 10, 2021 compelled a particular legal conclusion (See generally,
Dkt. #8; Dkt. 16). Defendant Boothe concedes as much, characterizing the law on this point as
“evolving and certainly unclear” (Dkt. #19 at p. 7).
13
In such cases, the Court must consider
whether clearly established law would have made it apparent that the affidavits at issue supported
probable cause for Plaintiff’s arrest—effectively collapsing the qualified immunity inquiry into the
probable cause analysis. If probable cause existed, the arrest was lawful under clearly established
law; if it did not, the arrest was unconstitutional. See, e.g., Martinez-Aguero v. Gonzalez, 459 F.3d
618, 625 (5th Cir. 2018) (quoting Wallace v. Kato, 549 U.S. 384, 389 (2007)); Haggerty v. Texas
Southern University, 391 F.3d 653, 656 (5th Cir. 2004). As explained above, the Court finds that
law enforcement’s search, seizure, and arrest lacked probable cause. See supra Section IV.B.
Therefore, Defendant Boothe violated clearly established law that any reasonable officer would
have known when he arrested Plaintiff under the alleged facts, and he is not entitled to qualified
immunity as to this claim. See, e.g., Martinez-Aguero, 459 F.3d at 625. Accordingly, Defendants’
Motion to dismiss this claim should be DENIED.
V. Plaintiff’s First Amendment Claim
Having determined that Plaintiff’s Fourth Amendment claim should survive Defendant
Boothe’s Rule 12(b)(6) Motion, the Court turns to the final phase of its analysis. That is, whether

13
The Court is bound to disregard Defendant Boothe’s reliance on Grisham, as it is rooted in caselaw born years after
Plaintiff’s July 20, 2021 arrest. See Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (“we ask whether the right in
question was ‘clearly established’ at the time of the alleged violation”) (emphasis added); Davidson v. City of Stafford,
848 F.3d 384, 393 (5th Cir. 2017) (evaluating the state of clearly established law at the time of plaintiff’s arrest).
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Plaintiff has stated a plausible claim for First Amendment retaliation and whether qualified
immunity bars that claim. As discussed below, Plaintiff’s claim should survive.
14

A. First Amendment Retaliation Legal Standard
To plead a First Amendment retaliation claim in the criminal prosecution context, a
plaintiff must plead sufficient facts to satisfy three elements: (1) he was engaged in a
constitutionally protected activity; (2) the defendants’ 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
defendants’ 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, the plaintiff must 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)). “To defeat a plaintiff’s prima facie First Amendment retaliation
claim, a defendant must show that [he] would have taken the same action regardless of the
plaintiff’s protected conduct.” Dickinson Leisure Indus., Inc. v. City of Dickinson, 329 F. Supp. 2d
835, 846-47 (S.D. Tex. 2004) (cleaned up).
B. Plaintiff has pleaded a plausible First Amendment claim against Defendant
Boothe that overcomes his qualified immunity.
Plaintiff claims that Defendant Boothe retaliated against him with criminal prosecution
simply because Plaintiff engaged in protected First Amendment conduct, including:

14
The Court notes that Plaintiff purports to have raised a First Amendment retaliation claim under two theories (See
Dkt. #16 at p. 35). The first is a direct infringement theory (See Dkt. #16 at p. 35; Dkt. #1 at pp. 22–24). The second
is a retaliatory arrest theory (Dkt. #16 at p. 35; Dkt. #1 at pp. 22–24). Plaintiff claims that Defendants’ Motion does
not challenge the direct infringement theory and instead only challenges the retaliatory arrest theory (Dkt. #16 at
p. 35). The Court agrees (See generally, Dkt. #8; Dkt. #19). Accordingly, only Plaintiff’s retaliatory arrest theory is
properly before the Court.
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(1) making inquiries to Town of Prosper officials on matters of
public concern;
(2) making said inquiries using an anonymous email address;
(3) asking for public records using the lawful process created by the
Texas Public Information Act, and corresponding with Town of
Prosper officials about those requests; and
(4) creating a website entitled Prosper Police Oversight to publish the
records he had lawfully obtained.
(Dkt. #1 at ¶ 107).
Plaintiff’s allegations name four independent acts, each of which the Court must evaluate
as bases for a First Amendment violation. Of course, these acts only give rise to a retaliation claim
if the First Amendment protects them. Keenan, 290 F.3d at 258. It does.
1. Plaintiff was engaged in constitutionally protected activity.
As a threshold issue, the Court must determine which alleged acts, if any, are protected
speech. See Keenan, 290 F.3d at 258. Plaintiff argues that Defendant Boothe cannot—and in fact,
did not—dispute that an anonymous request for information from the Town and publication of its
results are constitutionally protected activity (Dkt. #16 at p. 43). Be that as it may, the Court will
nonetheless consider whether the four alleged acts are constitutionally protected.
The Court starts with the first act: “making inquiries to Town of Prosper officials on
matters of public concern” (Dkt. #1 at ¶ 107). Plaintiff insists that the First Amendment protects
TPIA requests because they are lawful (Dkt. #16 at p. 43). Plaintiff is wrong. That an act is lawful
does not guarantee that it is constitutionally protected. In fact, the Supreme Court has “repeatedly
made clear that there is no constitutional right to obtain all the information provided by [Freedom
of Information Act] laws.” McBurney v. Young, 569 U.S. 221, 232 (2013) (collecting cases). The
TPIA is one such law. Indeed, since McBurney, this District has extended that principle to TPIA
requests. See Dallas Police & Fire Pension Sys. v. Alexander, No. 417-CV-00631-ALM-KPJ, 2020
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WL 9936144, at *11 (E.D. Tex. Mar. 26, 2020) (“TPIA requests are not constitutionally protected
speech . . . Rather, [plaintiff’s] TPIA requests are statutorily protected requests in Texas. Section
1983 does not protect [plaintiff’s] state rights under Texas statutes.”). So, lawful as Plaintiff’s
TPIA requests may be, they are protected by Texas statute—not the U.S. Constitution. See id.
Plaintiff’s attempt to recast the Constitution as a Public Information Act by bringing TPIA requests
within the scope of the First Amendment therefore fails. See id. at 10. Accordingly, Plaintiff’s TPIA
requests cannot serve as the basis for his retaliation claim.
The second act Plaintiff claims constitutional protection for is “making [TPIA requests]
using an anonymous email address” (Dkt. #1 at ¶ 107) (emphasis added). The crux of Plaintiff’s
argument here is not simply that he made a TPIA request, but that he did so anonymously. Plaintiff
claims that the First Amendment protects this conduct because its core principles apply to
anonymous speech (Dkt. #16 at p. 42). The Court agrees. “As a general proposition, anonymous
speech is protected by the First Amendment.” Justice For All v. Faulkner, 410 F.3d 760, 764 (5th
Cir. 2005) (collecting cases in which the Supreme Court has upheld First Amendment protection
of anonymous speech). To be sure, “free speech was originally understood to include the right to
speak without being known. Consistent with this original understanding, the Supreme Court has
upheld the right by striking down laws banning anonymous speech.” Novak v. City of Parma, 932
F.3d 421, 434 (6th Cir. 2019) (citing McIntyre v. Ohio elections Comm’n, 514 U.S. 334 (1995)).
Here, Plaintiff engaged in protected speech when he anonymously asked the Town for
information and thereafter criticized the Town’s response in a website, both of which were
motivated by the fear of reprisal (See Dkt. #16 at p. 44; Dkt. #1 at ¶¶ 14–22). Plaintiff’s use of a
pseudonym has no bearing on whether his speech is protected. See Pac. Gas & Elec. V. Pub. Utils.
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Com’n of Cal., 475 U.S. 1, 8 (1986). Thus, the Court finds that this conduct amounts to
constitutionally protected speech.
The third act is “asking for public records using the lawful process created by the Texas
Public Information Act, and corresponding with Town of Prosper officials about those requests”
(Dkt. #1 at ¶ 107). Though presented as a single act, this conduct consists of two sub-acts:
(1) asking for public records via the TPIA, and (2) corresponding with Town officials. Regarding
the first, as the Court has already stated, the First Amendment does not protect TPIA requests.
See supra at 34–35. As to the second, the Court agrees that corresponding with Town police about
their responses to Plaintiff’s TPIA requests amounts to protected speech.
Town police statistics reflect political and social dynamics in the community and,
therefore, qualify as a “matter of public concern” under First Amendment protection. Speech on
a matter of public concern is speech “relating to any matter of political, social or other concern to
the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). The law holds this kind of speech in
high esteem and, therefore, grants it special protection. Buehler, 2014 WL 12776539, at *5
(“[s]peech on public issues occupies the highest rung of the hierarchy of First Amendment values,
and is entitled to special protection”) (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)). Thus,
the Court finds that Plaintiff’s correspondence with Town officials is protected speech.
The final act is “creating a website entitled Prosper Police Oversight to publish the records
he had lawfully obtained” (Dkt. #1 at ¶ 107). Plaintiff’s posting of the Town’s police records on
the internet, a nascent medium, does not place that conduct outside the ambit of the First
Amendment. See Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011) (citing Joseph Burstyn,
Inc. v. Wilson, 343 U.S. 495, 503 (1952)) (“whatever the challenges of applying the Constitution to
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ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First
Amendment’s command, do not vary’ when a new and different medium for communication
appears”). The Court therefore concludes that Plaintiff’s publishing of the Town’s police records
constitutes protected speech.
2. Defendant Boothe’s “adverse action” chilled Plaintiff from exercising
his constitutional rights.
Next, the Court must determine whether Plaintiff suffered an adverse government action
that chilled him from continuing to engage in the constitutionally protected forms of speech
identified above. See Keenan, 290 F.3d at 258. There can be no question; he did. His government
arrested him for making anonymous TPIA inquiries, corresponding with Town officials about
those requests, and publishing to a website the responsive police records he had obtained (Dkt. #16
at pp. 43–44). That arrest is an adverse action. Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477
(2022) (an arrest is “easy to identify” as an adverse action). And no doubt, it chilled Plaintiff from
“continuing to engage in that activity.” See Keenan, 290 F.3d at 258; Bailey, 78 F.4th at 814. As
Plaintiff’s Complaint avers, he stopped communicating with Town officials and the public because
it “cause[d him] to constantly fear further harassment and retaliation from the Prosper Police
Department and other Town of Prosper officials” (Dkt. #1 at ¶ 116). Given that such repercussions
would discourage a person of ordinary fitness from exercising constitutionally protected conduct,
this element is satisfied. See Keenan, 290 F.3d at 258.
3. Defendant Boothe’s adverse actions were substantially motivated
against Plaintiff’s exercise of protected conduct.
Next, the Court must examine Defendant Boothe’s motivation behind the adverse action.
Id. Defendant Boothe alleges that the objectively reasonable law enforcement purpose of
investigating a public official’s impersonation motivated the arrest—not Plaintiff’s protected
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speech (Dkt. #8 at pp. 26–27). Plaintiff, on the other hand, argues that his protected speech
motivated Defendant Boothe to arrest him because they did not begin to investigate Plaintiff until
after he sent them an email expressing disappointment and skepticism about the Town’s handling
of the criminal investigation data (Dkt. #16 at p. 44; Dkt. #1 at ¶¶ 34, 40–41).
At this stage, the Court is satisfied that Plaintiff has met his burden to plead sufficient facts
to plausibly allege that Defendant Boothe acted with retaliatory motivation. Granted, a preceding
event does not necessarily cause a subsequent event simply because it came before. But in this
context, the Fifth Circuit counsels that it is “reasonable to assume” Defendant Boothe’s
subsequent actions were “substantially motivated as a response to [P]laintiff’s exercise of
protected conduct” if Plaintiff engaged in “politically and financially damaging” accountability
efforts that are lawful. See Keenan, 290 F.3d at 261. Here, Defendant Boothe issued a document
preservation hold only “two days after Plaintiff emailed Town Council disclaiming any intent to
impersonate a Town official” (Dkt. #1 at ¶ 40). Plaintiff’s approach to keeping the Town
accountable could have been damaging due to loss of employment or income, business
relationships, or, as the subject of the instant case shows, retaliatory enforcement by authorities.
Thus, the assumption in Keenan is equally reasonable to apply here. See Keenan, 290 F.3d at 261.
4. Plaintiff has plausibly pleaded common law malicious prosecution.
To successfully allege a retaliatory criminal prosecution as a First Amendment violation,
Plaintiff must further establish each element of common law malicious prosecution. See Keenan,
290 F.3d at 260 (citing Johnson, 18 F.3d at 320) (“[R]etaliatory criminal prosecutions in violation
of the First Amendment are actionable only if a plaintiff can also prove the common-law elements
of malicious prosecution, including the absence of probable cause to prosecute.”). Malicious
prosecution requires proof of three elements: “(1) the suit or proceeding was instituted without
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any probable cause; (2) the motive in instituting the suit was malicious, which was often defined in
this context as without probable cause and for a purpose other than bringing the defendant to
justice; and (3) the prosecution terminated in favor of the accused.” Armstrong v. Ashley, 60 F.4th
262, 278 (5th Cir. 2023) (internal quotations omitted) (citing Thompson v. Clark, 596 U.S. 36, 44
(2022)) (cleaned up).
Plaintiff has plausibly pleaded these elements. As explained above, Defendant Boothe’s
search and arrest warrants lacked sufficient indicia of probable cause to justify Plaintiff’s arrest.
See supra Sections IV.B–C. The same is true with respect to the second element. See supra Section
V.B.3 (citing Keenan, 290 F.3d at 261) (applying the presumption of substantial motivation).
Finally, Judge Roach, Jr. favorably terminated Plaintiff’s prosecution by granting a motion to quash
on the indictment, presumably because at least one of Plaintiff’s alleged bases for the Motion
supported an inference that the Grand Jury was tainted (Dkt. #1 at ¶¶ 87–89).
Therefore, Plaintiff has met his burden to plead sufficient facts to state a claim for common
law malicious prosecution. The overall result, then, is that Plaintiff has indeed established prima
facie First Amendment retaliation and malicious prosecution claims. Having determined that, the
Court will now consider whether caselaw clearly established that Defendant Boothe’s conduct
would have violated the First Amendment. See Flores, 381 F.3d at 395.
C. Defendant Boothe had “fair warning” that he violated Plaintiff’s clearly
established rights.
Defendant Boothe asserts the law does not clearly establish that a law enforcement agency
cannot investigate possible criminal activity surrounding a TPIA request (Dkt. #8 at p. 28) (citing
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Grisham v. Valenciano, No. SA-21-CV-00983, 2023 WL 367216, at *5 (W.D. Tex. Jan. 20, 2023)).
15

Defendant Boothe further contends that Plaintiff’s constitutional rights cannot shield his criminal
conduct from prosecution (Dkt. #8 at p. 29) (collecting cases). Plaintiff disagrees, arguing that it
was clearly established at the time of Plaintiff’s arrest that “government retaliation against a
private citizen for exercise of First Amendment rights cannot be objectively reasonable” (Dkt. #16
at p. 45) (quoting Keenan, 290 F.3d at 261). From Plaintiff’s perspective, not only did Defendant
Boothe lack probable cause to arrest Plaintiff, but any other reasonable officer in this circuit would
have concluded the same (Dkt. #16 at p. 45) (collecting cases).
To evaluate whether the law surrounding First Amendment retaliation was clearly
established at the time of Plaintiff’s arrest such that “every reasonable official would have
understood that what he is doing violates the right,” the Court looks to Fifth Circuit decisions
issued before the date on which the arrest occurred—July 20, 2021 (Dkt. #1 at ¶ 82). Jackson v.
City of Hearne, 959 F.3d 194, 200–01 (5th Cir. 2020) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)).
The first case the Court will consider, Keenan, involves police officers who allegedly
retaliated against plaintiffs for reporting a “possible wrongdoing” to the county district attorney
and a local television station. 290 F.3d at 256. In particular, plaintiffs “observed on-duty deputy
constables serving notices to vacate premises and providing private security services . . . [for] a
small fee.” Id. at 256. After plaintiffs resigned, they reported the officers’ conduct to the television
station, which aired a “highly critical, six-part investigative report entitled ‘Constable Cash’.” Id.

15
The Court must disregard Plaintiff’s citations to inapplicable caselaw post-dating the arrest as it did with Defendant
Boothe’s argument (Dkt. #16 at p. 45) (citing Bailey, 78 F.4th at 814). See supra note 9, at 32.
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Months later, officers stopped plaintiffs’ car while driving a heavily-traveled street, ostensibly
because plaintiffs’ rear license-plate light “‘was inoperable at the time of the offense.’” Id. at 257.
During the stop, the officers “detained both plaintiffs for an inordinate period of time—allegedly
with their guns drawn during part of the traffic stop—and ultimately issued only a minor traffic
citation that was later dismissed.” Id. at 259.
On a separate occasion, one of the plaintiffs tried videotaping the officers as they provided
allegedly illegal private security services. Id. at 257. One officer noticed plaintiff and approached
them, after which plaintiff purportedly pointed a gun at him. Id. Plaintiff insisted that he pointed a
video camera at the officer, not a gun; the officer still arrested plaintiff on a “misdemeanor ‘deadly
conduct’ charge.” Id. The lone fact supporting plaintiff’s deadly conduct charge was the officer’s
own assertion that “he was a trained law enforcement officer, and he knows a gun when he sees
it.” Id. at 260 (cleaned up). The lower court found that the officer had probable cause, confirmed
by a grand jury, to arrest plaintiff. Id. at 260. The Fifth Circuit disagreed, however, holding that
the lower court erroneously found probable cause based on the officer’s own statements because
there was no grand jury indictment. Id. Thus, the Court concluded that the officers’ conduct did
in fact violate the First Amendment.
Keenan is distinguishable from this case in multiple respects. While the Keenan plaintiffs
alleged that the police had committed a “possible wrongdoing”—a phrase Plaintiff would likely
apply to the conduct at issue here—they personally observed police engaging in the purported
violation as it occurred and later confirmed with the Office of the Attorney General that the
officers’ conduct did indeed violate Section 86.021 of the Local Government Code. See id. at 256
n.1. The motive to retaliate, then, was much clearer: the Keenan officers would have wanted to
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silence the plaintiff regarding the officials’ separate, underlying offense. Here, by contrast, Plaintiff
has not alleged that some underlying violation has occurred, meaning Plaintiff can prove a motive
to retaliate only through indirect evidence of the effect that Plaintiff’s own conduct subjectively
had on Town officials. Put another way, Plaintiff’s path to proving retaliation is less clear than that
of the Keenan plaintiffs. Additionally, there was no grand jury indictment in Keenan, while here,
the Collin County Grand Jury issued one (Dkt. #8-12). See id. at 260. Finally, unlike in Keenan,
Defendant Boothe relied on more than just his own statements to argue that probable cause existed
to arrest Plaintiff. See id. He also relied on the opinions of the Collin County Grand Jury and Sate
District Court Judge reviewing the same facts (Dkt. #8 at pp. 1, 18; Dkt. #8-12). The result is that
Keenan is not so factually similar to the case at hand that it clearly establishes First Amendment
law such that “every reasonable official would have understood that what he is doing violates
[Plaintiff’s] right.” Jackson, 959 F.3d at 200–01.
The next case, Davidson v. City of Stafford, was decided in 2017. 848 F.3d 384 (5th Cir.
2017). In Davidson, an anti-abortion protester situated himself in a green space between a highway
and a Planned Parenthood parking lot to express his pro-life views. Id. at 388. His protest consisted
of “holding a sign that said ‘Pray to End Abortion,’ and waving at cars both on [the highway] and
in the parking lot.” Id. If passersby stopped, he would “speak to the passengers and offer them a
card with a phone number to a service that offers free pregnancy tests and ultrasounds.” Id.
Following a call to the police by Planned Parenthood personnel, two officers were dispatched to
the protester’s location to investigate the scene. Id. at 389. Upon confronting the protester, the
police asked for identification, to which he responded that “he did not have any identification and
that his name was ‘Jonathan’.” Id. at 388–89. The police subsequently arrested the protester,
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stating that “you don’t ID, you go to jail.” Id. at 389. The protester informed the police that he
was not operating a motor vehicle, presumably to show he had no reason to carry identification,
but the officers replied that “when we’re conducting an investigation, [and you] fail to give your
name to the police, you go to jail.” Id. After being arrested, the protester filed a Section 1983 action
against the arresting officers, police chief, and city, asserting First and Fourth Amendment
violations. Id. On review, the Court in Davidson affirmed the lower court’s holding that no probable
cause existed to call for the protester’s arrest because the allegedly violated statute “clearly was
not triggered.” Id. at 392. The Court reasoned, in part, that “an arrest without probable cause
violates both First and Fourth Amendment rights . . . .” Id. at 393.
While not directly on point, Davidson is more factually analogous to this case than Keenan.
At a high level of abstraction, Davidson also relates to a plaintiff with a veiled identity. See id. at
388–89. He communicated his opinion to the public in personal protest against Planned
Parenthood as an institution. See id. at 388. And just as Plaintiff did in this case, the plaintiff in
Davidson argued that the police had no probable cause to show the offense triggering the alleged
retaliation was ever committed. See id. at 389. Yet, a more granular view reveals how the two cases
begin to diverge. Unlike Plaintiff in this case, the Davidson plaintiff identified himself by name. See
id. at 388–89. And the officers in Davidson arrested the plaintiff because he did not carry
identification with him, not because he anonymized his name. See id. Thus, although the Court is
similar to that in Davidson in that it does not believe the allegedly violated statute was triggered,
see supra Section IV.B, the facts are not so analogous to the instant case that they clearly “place[]
the . . . constitutional question beyond debate.” Pearson, 555 U.S. at 236–37.
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The Court recognizes that the novel factual circumstances presented by this case implicate
important interests. But novel circumstances alone do not guarantee that the conduct at issue was
objectively reasonable in view of clearly established law at the time of the violation. Indeed, as the
Supreme Court has established, “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Such a conclusion is warranted here. As unique as the facts of this case may be, the Court finds
that contemporaneous caselaw provided Defendant Boothe with “fair warning” that leveraging
his governmental authority to retaliate against Plaintiff for exercising his right to protected speech
would have violated the First Amendment. See Cooper v. Brown, 844 F.3d 517, 524 (5th Cir. 2016)
(quoting Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012)) (“The law can be clearly established
despite notable factual distinctions between the precedents relied on and the cases then before the
Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.”); Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (“government
retaliation against a private citizen for exercise of First Amendment rights cannot be objectively
reasonable”). As a result, the Court holds that Defendant Boothe is not entitled to qualified
immunity. Accordingly, Defendants’ Motion to dismiss Plaintiff’s First Amendment retaliation
claim should be DENIED.
CONCLUSION
It is therefore ORDERED that Defendants Lt. Boothe and Chief Kowalski’s Motion to
Dismiss (Dkt. #8) is hereby GRANTED in part and DENIED in part. Specifically, Defendants’
Motion is GRANTED as to Plaintiff’s claims against Defendant Kowalski. Defendants’ Motion
is DENIED in all other respects.
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IT IS SO ORDERED.
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