Jasma McCullough v. Dept of Fam and Protc Services

Case: 20-20058 Document: 00515675598 Page: 1 Date Filed: 12/16/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 16, 2020
No. 20-20058 Lyle W. Cayce
Clerk
Jasma McCullough,
Plaintiff—Appellant,
versus
Shaylonda Herron; Sonya White; Fredrick Jones,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-83
Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges.
Per Curiam:*
A mother brought suit under 42 U.S.C. § 1983 against three
employees from the Texas Child Protective Services, alleging constitutional
violations in connection with the removal of her children in 2015. We affirm
the district court dismissal of all Defendants.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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I.
In November 2014, the Texas Department of Family and Protective
Services (“TDFPS”) received reports from the paternal grandmother of
Plaintiff Jasma McCullough’s (hereafter referred to individually as
“McCullough”) children alleging medical neglect and neglectful
supervision. According to the grandmother, McCullough had three children:
a two-year-old with a “seizure disorder” and a four-year-old who lived with
the grandmother, and a nine-month-old baby who lived with McCullough in
her car. The report was referred to Child Protective Services (“CPS”)
Investigator Shayolonda Herron (“Herron”).
Five days after the first report about McCullough’s medical neglect of
her two older children, and before investigator Herron had contacted
McCullough, CPS received another report, this time from law enforcement.
The investigation report submitted by the Houston Police Department
expressed concern about McCullough’s children, and in particular, her
youngest child, after a verbal altercation between McCullough and the father
of the child. It was reported that McCullough drove off with the father’s
vehicle while holding her child on her lap. According to the intake report,
McCullough stated she “does not have a stable place to live,” and will have
to leave her sister’s home in a few days with “nowhere else to take the
children.”
In less than one week, CPS had received two reports – from two
separate sources – that all three of McCullough’s children were endangered
or put at increased risk of harm due to the conduct of their mother. Herron
informed her supervisor, Sondra White (“White”), about the second report,
and was instructed to “immediately go out on the case and try to make
contact with the family, and staff the case from the field.”
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Herron interviewed McCullough about the allegations in both reports
on December 9, 2014. According to Herron’s investigative notes,
McCullough did not believe there was anything wrong with holding the child
in her lap while driving; when the children got sick, she took them to the
emergency room; the two-year old had a seizure two weeks earlier as a result
of a fever; she admitted that the child’s seizures were happening more
frequently, but only occurred when he has a fever; and she confirmed that
the children did not have a primary care physician because she had missed
too many appointments.
Herron asked McCullough to sign a safety plan agreeing to take all the
children to a doctor and to take a drug test. McCullough attempted and failed
several times to take the children to see a pediatrician due to insurance
coverage issues. Herron threatened to pursue legal actions if McCullough did
not take the drug test and take her children to the doctor. After not showing
for her first scheduled drug test and reportedly arriving after close of business
for her second, McCullough submitted to a drug test. McCullough’s hair
follicle test was positive for cocaine, but the urinalysis test was negative.
After seeing McCullough’s drug test results, on January 5, 2015,
Herron appeared before a state court and swore to the contents of two
affidavits supporting TDFPS’s request for an emergency removal of
McCullough’s three children from her custody. The affidavits based the need
for removal on medical neglect and neglectful supervision of McCullough’s
children, and omitted reference to the negative urinalysis. Herron testified
that one child had a history of seizures, McCullough had failed to take the
child to the doctor, and McCullough had tested positive for cocaine. Herron
did not, at that time, testify about the negative test result. Herron
recommended removal due to medical neglect because all three children
were behind on routine medical and dental appointments, and the middle
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child’s seizure condition continued to be unaddressed. The court granted an
emergency order of removal.
On January 14, 2015, a hearing was held on the emergency removal of
the children. Herron stated that her current concerns for the children were
McCullough’s positive hair follicle drug test, lack of residence, and the
ongoing conflict with the father of two of her children. At this hearing,
Herron also referenced the negative urinalysis while under oath. At the
hearing, McCullough denied taking illegal drugs and denied her middle child
had a seizure disorder. At the conclusion of the hearing, the court appointed
the TDFPS as the temporary managing conservator and approved the
placement of the children with a family member and supervised visits for
McCullough. Her children were returned to her 14 months later.
McCullough filed suit on January 6, 2017 against “all who were
directly involved and participated in the wrongful removal and retention” of
her children. After filing a series of eight amended complaints, and adding
and removing entities and individuals as defendants, McCullough
complained that four TDFPS employees and Harris County violated her
constitutional rights when they obtained an emergency removal order based
on false information. Specifically, she alleged four causes of action: (1)
violation of substantive due process rights to familial association and
integrity; (2) violation of procedural due process rights to familial
associational rights; (3) violation of Fourteenth Amendment rights; and (4)
violation of the Fourth and Fourteenth Amendment rights.
On June 7, 2018, the district court adopted a magistrate judge’s
recommendation to dismiss Harris County and the individual defendants for
violations of McCullough’s procedural due process rights and found that
McCullough failed to state any violation of substantive due process against
Defendants White or Jones. The court also partially denied Herron’s motion
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to dismiss, finding that Herron was not entitled to qualified immunity based
on McCullough’s allegation that Herron lied in her affidavit to obtain the
court order for removal of the children, allowing only McCullough’s due
process claim against Herron to proceed. On September 3, 2019, the district
court granted Herron’s motion for summary judgment, after finding that
Herron was entitled to qualified immunity. McCullough appeals the
dismissal of claims against Defendants Herron, White, and Frederick Jones
(“Jones”)
II.
In her motion for summary judgment, Herron asserts that she is
entitled to qualified immunity because she did not violate McCullough’s
constitutional right to family integrity for two main reasons: First, that
Herron is entitled to absolute immunity for her state court testimony. And
second, that McCullough cannot show objectively unreasonable violations of
clearly establish federal constitutional law. The district court granted
summary judgment after finding McCullough failed to raise a fact issue that
Herron knowingly made false statements in her affidavit.
On appeal, McCullough raises eight points of error, the central issue
of which is whether the district court correctly held that the Defendants were
entitled to qualified immunity from McCullough’s claims under the
Fourteenth Amendment, which prohibits state actors from depriving
individuals of “life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV; see Morris v. Dearborne, 181 F.3d 657, 666-67 (5th Cir.
1999) (citing Stanley v. Illinois, 405 U.S. 645 (1972), and explaining that the
right to family integrity is a form of liberty protected by the Fourteenth
Amendment’s Due Process Clause). In response, Defendants argue the
district court correctly concluded they were entitled to qualified immunity
from McCullough’s Fourteenth Amendment claims.
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We review the motion for summary judgment de novo, and we apply
the same standard as the district court, viewing the evidence in the light most
favorable to the nonmovant. First Am. Title Ins. Co. v. Cont’l Cas. Co., 709
F.3d 1170, 1173 (5th Cir. 2013). Summary judgment is appropriate where
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). Courts do not
disfavor summary judgment, but, rather, look upon it as an important process
through which parties can obtain a “just, speedy and inexpensive
determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986).
McCullough also appeals the dismissal of supervisors White and
Jones. The district court adopted the report and recommendation of the
magistrate judge to dismiss all claims against Defendants, except the
substantive due process claim against Herron, on July 11, 2018. The court
denied McCullough’s motion for reconsideration and motion to correct
errors, and dismissed White and Jones. We review the district court’s grant
of the supervisor’s motion to dismiss de novo. Wampler v. Sw. Bell Tel. Co.,
597 F.3d 741, 744 (5th Cir. 2010).
Qualified Immunity
“Summary judgment is required if the movant establishes that there
are no genuine issues of material fact and the movant is entitled to judgment
as a matter of law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)
(citing Fed. R. Civ. P. 56(c)). In order to prevail on a claim under Section
1983, a plaintiff must establish that the defendant deprived the plaintiff of
their constitutional rights while acting under the color of state law. Moody v.
Farrell, 868 F.3d 348, 351 (5th Cir. 2017). When a public official invokes a
qualified immunity defense, however, the burden shifts to the plaintiff to
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rebut the defendant’s assertion. Cantrell v. City of Murphy, 666 F.3d 911, 918
(5th Cir. 2012).
“The doctrine of qualified immunity protects government officials
from civil damages liability when their actions could reasonably have been
believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)
(en banc); Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011) (Qualified immunity
gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions.); Pearson v. Callahan, 555 U.S. 223,
231 (2009) (The protection of qualified immunity applies regardless of
whether the government official’s error is a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact). Child protective
service workers are entitled to qualified immunity to ensure that an effective
child-abuse investigation system exists. Stem v. Ahearn, 908 F.2d 1, 5 (5th
Cir. 1990). Qualified immunity “protects all but the plainly incompetent or
those who knowingly violate the law,” and applies “unless existing
precedent…placed the statutory or constitutional question beyond debate.”
Id. at 371. Government officials are entitled to qualified immunity from
liability for civil damages unless (1) the official violated a statutory or
constitutional right (2) that was clearly established at the time of the
challenged conduct. Reichle v. Howards, 566 U.S. 658, 664 (2012).
A right is deemed to be clearly established when “the contours of the
right [are] sufficiently clear [such] that a reasonable official would understand
that what he is doing violated that right.” Wernecke v. Garcia, 591 F.3d 386,
392 (5th Cir. 2009). “That is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).
To establish qualified immunity as a defense, a defendant must demonstrate
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that the alleged conduct occurred while they were acting in their official
capacity. Beltran v. City of El Paso, 367 F.3d 299, 303 (5th Cir. 2004).
Substantive Due Process
The constitutional guarantee of substantive due process prohibits
arbitrary or conscience-shocking action by state actors. See Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 867 (5th Cir. 2012).
Among other protections, the federal constitution protects the right to
“family integrity,” which is characterized as a “form of liberty guaranteed
by the due process clause of the Fourteenth Amendment,” including the
“rights to conceive and to raise one’s children” and to maintain the
“integrity of the family unit.” Morris 181 F.3d at 666-67 (quoting Stanley 405
U.S. at 651). This right can also be described as “the right of the family to
remain together without the coercive interference of the awesome power of
the state.” Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988).
The Supreme Court has referred to the “interest of parents in the
care, custody, and control of their children” as “perhaps the oldest of the
fundamental liberty interests recognized” by the Court. Troxel v. Granville,
530 U.S. 57, 65 (2000). The right, however, is not absolute. States have an
interest in adopting necessary policies to protect the health, safety, and
welfare of children. Morris, 181 F.3d at 669; see also Wooley v. City of Baton
Rouge, 211 F.3d 913, 924 (5th Cir. 2000).
This court has enunciated a test to determine whether the conduct of
state actors violated the constitution by analyzing claims of state interference
with the right to family integrity “by placing them, on a case by case basis,
along a continuum between the state’s clear interest in protecting children
and a family’s clear interest in privacy.” See Morris, 181 F.3d at 671. The
question whether McCullough alleged a violation of the substantive due
process right to family integrity can be answered by assessing whether
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Herron’s individual actions were arbitrary or conscience shocking on the
continuum between private and state interests. They were not.
The TDFPS received a referral implicating McCullough of medical
neglect and neglectful supervision. Herron was assigned to the case and
initiated her investigation by interviewing McCullough’s children.
McCullough initially refused to be interviewed or cooperate with CPS, but
eventually agreed after she was threatened with legal action to remove the
children. McCullough confirmed to Herron that she was behind on the
children’s vaccinations, failed to attend several doctor’s appointments for
her children, and tested positive for cocaine after a hair follicle test.
After the investigation and interviews surrounding the separate
referrals to the TDFPS from the children’s grandmother and the Houston
Police Department, Herron prepared an affidavit to the state court in support
of removal. In the affidavit, Herron highlights a previous incident involving
CPS from 2012, the positive hair follicle drug test, and medical concerns for
the children, but omits reference to the negative urinalysis drug test. The
court reviewed the affidavit and signed the emergency order of removal. A
follow-up hearing was held shortly after on the emergency removal of the
children where Herron testified that her concerns for the children were
McCullough’s lack of residence, the positive drug test, and ongoing conflict
between McCullough and the father of two of her children.
McCullough alleges that Herron knowingly and intentionally included
false information in her affidavits and testimony to the court. Specifically,
McCullough alleges that Herron failed to properly investigate the allegations
of medical neglect, misrepresented the facts in the affidavit that the children
were in imminent danger, determined the children were medically neglected
without medical records, and that McCullough failed a drug test, engaged in
a domestic dispute, and drove with her baby on her lap.
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Herron’s actions did not violate McCullough’s substantive due
process rights. Herron was assigned to investigate a report of neglected
children, after two independent referrals were received by the TDFPS, and
did so. Herron sought voluntary compliance from McCullough, and after
frustrated interactions, suspected McCullough of using illegal substances
and requested a drug test. McCullough’s drug testing was two-fold: her hair
follicle test was positive, and her urinalysis test was negative. Herron’s
affidavit based the need for removal on medical neglect for failure to
vaccinate her children or take them to a dentist, and she testified that one
child had a history of seizures and was not taken to an appropriate medical
appointment and that McCullough tested positive for cocaine.
Herron also recommended removal on the basis of negligent
supervision, citing the domestic dispute with the child’s father reported by
Houston Police, and McCullough’s confirmation that the child was
unrestrained in the vehicle. All of this information was evidence to Herron
that the children were in immediate danger and their continuation in the
home would be contrary to their welfare.
Herron presented the information and based her recommendation to
the court based on what she was aware of at the time. The record does not
support the assertion that Herron intentionally lied, misrepresented, or
fabricated evidence to the court. Cf. Rogers v. Lee Cnty., Miss., 684 F. App’x
380, 390 (5th Cir. 2017) (affirming a district court’s grant of summary
judgment on a substantive due process claim where evidence showed state
actors “demonstrate[d] at most negligence or incompetence rather than a
conscience-shocking intent to lie about, misrepresent, or fabricate
evidence”); Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (“[W]e
conclude that the district court was correct in holding that a teacher’s
fabrication of sexual abuse against a student’s father shocks the
contemporary conscience.”).
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The record does not include any evidence of the predicate conscience-
shocking behavior needed to support a substantive due process claim. An
inconsistency in an affidavit, along with assertions that Herron should have
done more beyond the many visits, phone calls, interviews, and investigations
she conducted before reaching her conclusions, do not amount to evidence
of “arbitrary or conscience-shocking” conduct. There are no genuine issues
of material fact precluding a finding, as a matter of law, that Herron did not
violate McCullough’s Fourteenth Amendment substantive due process
rights.
Procedural Due Process
Procedural due process must be provided before parents are deprived
of their liberty interest in the custody and management of their children.
Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). The procedural protections
include, at a minimum, notice and an opportunity to be heard in a meaningful
time and manner. Gibson v. Tex. Dep’t. of Ins.– Div. of Workers’ Comp., 700
F.3d 227, 239 (5th Cir. 2012) (quoting Fuentes v. Shevin, 407 U.S. 67, 80
(1972)). The analysis of a procedural due process claim has two steps: (1)
whether a liberty or property interest exists with which the state has
interfered; and (2) whether the procedures attendant upon the deprivation
were constitutionally sufficient. Meza v. Livingston, 607 F.3d 392, 399 (5th
Cir. 2010)).
This court has established that the Fourth Amendment governs social
workers’ investigations of allegations of child abuse. Wernecke v. Garcia, 591
F.3d 386, 399-400 (5th Cir. 2009). Due Process that satisfies Fourth
Amendment standards is adequate to protect parents’ Fourteenth
Amendment liberty interest in their child’s custody. Gates v. Tex. Dep’t of
Protective & Regul. Servs., 537 F.3d 404, 435 (5th Cir. 2008). It is also clearly
established that a constitutional violation occurs if an official makes a
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knowing, intentional, or reckless false statement or omission that causes the
issuance of a warrant without probable cause that leads to the removal of a
child from its parent’s custody. Franks v. Delaware, 438 U.S. 154, 155-56
(1978).
Once the TDFPS receives a report of abuse or neglect, it must
promptly and thoroughly investigate. TEX. FAM. CODE § 261.301(a). If the
TDFPS believes that the child’s immediate removal is necessary to avoid
further abuse or neglect, it must file a petition or take other action under
chapter 262 for the child’s temporary care and protection. Id. § 261.302(d);
see In re E.C.R., 402 S.W.3d 239, 246–47 (Tex. 2013). Under Texas Law, a
state court may authorize the TDFPS to take possession of a child without
prior notice and a hearing if the state court finds among other reasons that
“there is an immediate danger to the physical health or safety of the child or
the child has been a victim of neglect or sexual abuse and that continuation in
the home would be contrary to the child’s welfare” or “reasonable efforts
consistent with the circumstances and providing for the safety of the child
were made to prevent or eliminate the need for removal of the child.” Id. §
262.102(a). TDFPS’ suit for possession without prior notice and a hearing
“must be supported by an affidavit sworn to by a person with personal
knowledge.” Tex. Fam. Code § 262.101.
In Marks v. Hudson, this court considered whether the mother of three
minor children could overcome a claim of qualified immunity by social
workers based on the mother’s allegations that the social workers performed
a deficient investigation into allegations of child abuse and made false
statements in affidavits to obtain a temporary order of removal of the children
from her home. 933 F.3d 481 (5th Cir. 2019). The court concluded that a
Fourth Amendment violation exists for a false affidavit submitted to the court
for the purpose of obtaining a child seizure order. Id. at 486. The court
determined that the standard to be employed was probable cause. Id. In doing
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so, the court confined its review to consider whether, after removing the
plausibly claimed fabrications, and inserting all plausibly claimed omitted
material, the affidavit would still support the court’s finding of probable
cause. Id. at 487.
The undisputed summary judgment evidence supports Herron’s
statement that McCullough tested positive for cocaine from a hair follicle
test. The fact that the contemporaneous urinalysis sample tested negative
does not raise a constitutional claim that Herron lied in her affidavit. The
negative urinalysis would only raise an inference that the cocaine usage was
not recent. The probable cause determination would remain unchanged with
this additional information. Indeed, the court’s conclusions at the initial
emergency hearing—finding that TDFPS could properly take temporary
custody of the children without knowledge of the negative result—were the
same as those reached during the subsequent hearing, once testimony about
the negative test had been introduced. Hence, the omission of the negative
test result from the affidavit did not “lead to the removal of the child from
the parent’s custody.” Marks, 933 F.3d at 486. The summary judgment
evidence does not support a finding that Herron knowingly or intentionally
made a false statement in her affidavit about McCullough’s drug test results.
Next, we examine McCullough’s allegation that Herron’s affidavit
claimed that the children were being medically neglected without medical
records. The TDFPS received the initial referral after the children’s paternal
grandmother contacted the Department about their medical condition and
reported that one child had a seizure disorder and McCullough had failed to
take the child to a follow-up medical appointment. In reviewing the summary
judgment record, the grandmother was the primary caregiver for two of
McCullough’s three children, and reported characteristics of McCullough
that would be objectively necessary to investigate, specifically that she was
unstable and often evicted. The father of the children followed up with this
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report and supported the assertion that McCullough was not taking care of
the children and had refused to take them to the doctor for medically
necessary appointments. In her report, Herron noted that McCullough had
not taken the children to the doctor at the time of the hearing, despite
previously stating her intent to do so. The summary judgment evidence does
not support a finding that Herron knowingly or intentionally made a false
statement in her affidavit about the child’s seizure disorder or the children’s
medical needs.
Herron’s affidavit also recounts the report received from the Houston
Police Department, stating that McCullough had her baby on her lap while
driving after a verbal altercation with the child’s father. McCullough denies
the baby was on her lap, and instead argues the child was restrained in the
back seat of the car, but failed to support this assertion with an affidavit. In
examining the facts known to Herron at the time, the police report and
testimony from other family members support Herron’s statement. The
statement, even if assumed false, was immaterial to the court’s finding of
probable cause for medical neglect. McCullough has failed to present any
evidence raising a genuine dispute of facts, and summary judgment is proper.
As detailed above, McCullough has alleged a liberty interest in family
integrity and the state’s interference in that interest. After reviewing the
summary judgment evidence and record, McCullough has failed to adduce
any facts that suggest that the procedures were constitutionally insufficient.
Herron initiated contact after she received multiple reports of neglect.
Herron requested an interview with McCullough. McCullough admitted that
Herron requested an interview with her and that she chose to have “nothing
to do with CPS.” McCullough has failed to state a claim against Herron for a
violation of her procedural due process rights.
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Supervisory Liability Under Fed. R. Civ. P. 12(b)(6)
Lastly, while Herron kept her supervisors informed of her efforts to
investigate, neither Jones nor White personally investigated the allegations.
In order to establish supervisor liability for constitutional violations by
subordinate employees, a plaintiff must show that the supervisor acted or
failed to act with deliberate indifference to constitutional rights being violated
against others by their subordinates. Pena v. City of Rio Grande City, 879 F.3d
613, 620 (5th Cir. 2018). Rule 12(b)(6) permits dismissal for “failure to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). We
review the district court’s grant of a motion to dismiss de novo. Budhathoki
v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018).
McCullough alleged Jones and White “explicitly approved” of
Herron’s actions, but failed to support the conclusory allegation and bare
assertions that Jones or White knew about or approved of any purportedly
false statement in Herron’s affidavit. See Ashcroft v. Iqbal, 556 U.S. 662, 662
(2009) (stating the court need not accept as true conclusory allegations).
There is, for example, no adequately pleaded allegation that Jones or White
ordered or were advised of the falsification of the testimony in the affidavit.
See Southard v. Tex. Bd. of Crim. Just., 114 F.3d 539, 550 (5th Cir. 1997)
(noting that the misconduct of a subordinate must be “conclusively linked”
to the action or inaction of the supervisor). Claims that are insufficiently
pleaded are properly dismissed. Deal v. Bank of N.Y. Mellon, 619 F. App’x
373, 374 (5th Cir. 2015). In short, as the district court correctly concluded,
McCullough’s complaint failed to state a § 1983 claim against White or Jones.
These claims were correctly dismissed pursuant to Rule 12(b)(6) below.
III.
Lastly, McCullough argues that the district court erred in denying her
motion for leave to amend her complaint. A district court’s denial of a motion
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to amend the pleadings is reviewed for abuse of discretion. Moore v. Manns,
732 F.3d 454, 456 (5th Cir. 2013). “[A] court should freely give leave” to
amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Likewise, a district court’s denial of a motion to alter or amend judgment is
reviewed for abuse of discretion and need only be reasonable. Edionwe v. Bai-
ley, 860 F.3d 287, 291–92 (5th Cir. 2017).
We reject McCullough’s argument that the district court abused its
discretion by denying her motion to alter or amend judgment. A Rule 59(e)
motion “calls into question the correctness of a judgment.” In re Transtexas
Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). It serves the narrow purpose of
allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence. Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.
2004). “Reconsideration of a judgment after its entry is an extraordinary
remedy that should be used sparingly.” Id. (emphasis added). Such a motion
is not the proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before the entry of judgment. Id. (citing
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
Additionally, while an explanation of the reasons for a denial of a
motion to amend is preferred, it is not an abuse of discretion where the
reasons for denial are apparent. Mayeaux v. LA Health Serv. and Indem. Co.,
376 F.3d 420, 426–27 (5th Cir. 2004). In the report and recommendation on
the supervisors’ motion to dismiss, the magistrate judge ordered that “no
further amendments will be allowed as [McCullough] has amended her
complaint eight times.” The district court adopted the report and
recommendation without opinion. In light of the history of eight amended
complaints over a year, we do not believe that the district court abused its
discretion in denying the appellant leave to file another amended complaint.
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IV.
For the foregoing reasons, the judgment is AFFIRMED.
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