Ferrara v. Swonke

Case: 25-50272 Document: 28-1 Page: 1 Date Filed: 08/07/2025

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 25-50272

FILED August 7, 2025

Summary Calendar

____________ Lyle W. Cayce

Clerk John David Ferrara, also known as John D. Ferrara,

Plaintiff—Appellant, versus

Joseph Swonke, City of Kyle, Kyle Police Department, his individual capacity only; Pedro Carrasco, City of Kyle, Kyle Police Department, his individual capacity only; Unknown Kyle Police Officers,

Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:24-CV-77

______________________________

Before Davis, Wilson, and Douglas, Circuit Judges.

Per Curiam: *

Beginning in 2020, Plaintiff-Appellant John David Ferrara filed a succession of pro se suits in the Western District of Texas (San Antonio Division) alleging constitutional torts under 42 U.S.C. § 1983. The gist of Ferrara’s various claims is that he “ha[s] been under surveillance, by public servants, for unknown reasons, for decades.” 1 He believes over 30 public officials and municipalities have participated in the conspiracy, including city-council members and the mayor of the city of Kyle, court staff, deputies, and attorneys with Cameron County, and the mayor, police chief, and other officials with the city of Princeton. Among the many state officials allegedly surveilling him is Jeffrey Barnett, the police chief of Kyle, Texas. 2 There’s no serious dispute that Ferrara sent Barnett over 1,200 unrequited social- media messages, some of which suggested familiarity with Barnett’s personal life and resulted in Ferrara’s arrest for felony stalking. The ensuing criminal case ended with a Deferred Prosecution Agreement, where the State agreed to conditionally dismiss its case, so long as Ferrara stayed out of trouble and had no direct contact with Barnett for two years.

The first and second of Ferrara’s pro se suits were filed in forma pauperis, screened under 28 U.S.C. § 1915(e)(2), characterized as “fantastic and delusional scenarios,” and dismissed as frivolous. 3 Ferrara did not pursue an appeal of either judgment. Instead he filed a fee-paid suit, which asserted § 1983 liability arising from the same conspiracy and arrest at issue in his IFP suits dismissed under § 1915(e). 4 The defendants moved to dismiss, arguing the prior judgments precluded the fee-paid claims. The magistrate judge acknowledged that § 1915(e) dismissals aren’t preclusive unless they fall under one of the exceptions set forth in Marts v. Hines. 5 Applying the Marts exceptions, the magistrate concluded the § 1915(e) dismissals were, indeed, preclusive and barred the fee-paid suit, which arose from the same nucleus of operative facts as the IFP suits. The district judge adopted the report and recommendation, and admonished Ferrara “that if he continues to institute new actions based on claims that have already been dismissed, sanctions may be imposed[.]” Again, Ferrara did not appeal. He instead filed two more fee-paid suits based on the same operative facts as the prior cases. 6 The last of these is the subject of this appeal.

In it, Ferrara sued two officers and alleged the probable-cause affidavit that secured his arrest warrant for stalking Barnett was false because it omitted his “fantastic and delusional scenarios” that comprise the conspiracy. 7 The officers moved to dismiss, arguing claim and issue preclusion and qualified immunity. A magistrate judge recommended dismissal for the reasons urged, as well as limitations. The district judge adopted the report and recommendation, and enjoined Ferrara from filing new suits in the San Antonio Division without leave of court. We review the dismissal de novo and the sanction for abuse of discretion. 8

Ferrara contends the district court erred on each of the grounds noted in its ruling. We don’t engage his arguments though, because Ferrara’s operative complaint fails to state a Franks or Malley claim as a matter of law: it merely asserts the probable-cause affidavit that secured his arrest warrant for felony stalking should have been rewritten to reflect an exhaustive narrative of his conspiracy, along with some conclusory statements about the officers’ motives. His assertions of a decades-long conspiracy don’t detract from the charge the probable-cause affidavit supported; nor do they plausibly allege that any part of the affidavit was false or misleading; that either officer intended to mislead the state magistrate; that probable cause was lacking; or that a reasonably well-trained officer in the officers’ position would have known the affidavit failed to establish probable cause. 9 Independent of these deficiencies, issue preclusion also forecloses any further attempt by Ferrara to relitigate his conspiracy allegations that serve as the basis for his Franks/Malley claim, as those allegations have been conclusively adjudged to be frivolous and hence, inactionable. 10

Turning to the district court’s pre-filing injunction, we consider whether the injunction is a proportionate sanction and whether the district court issued a warning before imposing it. 11 The district court warned Ferrara three times against filing redundant claims and allegations, but he did it anyway—and more than once. Under the circumstances, we find no abuse of the district court’s discretion. AFFIRMED.