Thomas v. Parker: Fifth Circuit reaffirms that the trial record controls, summary‑judgment concessions are not judicial admissions, and pro se litigants must make offers of proof

Court: U.S. Court of Appeals for the Fifth Circuit (per curiam, Barksdale, Willett, Duncan)

Date: November 13, 2025

Docket: No. 24-30610

Disposition: Judgment as a matter of law affirmed; motion for appointed counsel on appeal denied

Publication status: Not designated for publication (5th Cir. R. 47.5)

Introduction

In Thomas v. Parker, the Fifth Circuit affirmed a judgment as a matter of law entered against a pro se plaintiff who, after resting his case at a jury trial on federal and Louisiana malicious‑prosecution claims, had not introduced any evidence that the underlying criminal charges terminated in his favor. The opinion is a forceful reminder of three rigorously applied procedural rules in the Fifth Circuit:

The “trial record controls” principle: appellate review of sufficiency turns on the evidence actually introduced at trial—not on what was submitted at summary judgment.
Concessions made at summary judgment are not judicial admissions at trial absent clear intent to waive proof.
To preserve evidentiary‑exclusion challenges for appeal, a party must make a Rule 103(a)(2) offer of proof—even pro se litigants.

The case arose from two criminal charges filed against Christopher G. Thomas in February 2019. After extensive pleadings with numerous claims and defendants, only Thomas’s malicious‑prosecution claims—under the Fourth Amendment (via § 1983) and Louisiana law—proceeded to trial against Deputies Earlton Parker and Roderick Perry. When Thomas rested without introducing documentary proof of favorable termination (despite having attached state‑court dismissal records to his complaint and intending to use them as exhibits), the district court granted the deputies’ Rule 50(a) motion. On appeal, Thomas challenged both the Rule 50 ruling and the district court’s refusal to admit certain evidence. The Fifth Circuit affirmed across the board and also denied Thomas’s request for appointed counsel.

Summary of the Opinion

Applying de novo review of the district court’s Rule 50(a) ruling, the Fifth Circuit held that no reasonable jury would have a legally sufficient evidentiary basis to find for Thomas on an essential element of malicious prosecution—favorable termination—because he offered no trial evidence on that point. This omission was “fatal” to both the federal and state malicious‑prosecution claims.

As to the exclusion of exhibits, even assuming arguendo the district court erred in its trial‑management rulings when Thomas tried to offer exhibits, the court declined to reach those issues because Thomas failed to preserve any evidentiary challenges by making an offer of proof under Federal Rule of Evidence 103(a)(2). The panel emphasized the Fifth Circuit’s strict preservation rule and the principle that pro se status does not excuse compliance with procedural requirements.

The court also rejected Thomas’s argument that defendants’ summary‑judgment concessions (that the charges were dismissed) were binding judicial admissions at trial. Citing Fifth Circuit authority, the panel explained that statements in summary‑judgment papers are not judicial admissions unless clearly intended to waive the opponent’s need to prove facts at trial—a showing absent here.

Finally, the panel denied Thomas’s motion for appointment of counsel on appeal because no “exceptional circumstances” warranted it.

Analysis

Precedents cited and how they influenced the decision

Rule 50(a) standard: Cristain v. Hunter Buildings & Manufacturing, L.P., 908 F.3d 962 (5th Cir. 2018); Kelso v. Butler, 899 F.3d 420 (5th Cir. 2018); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)
The panel reviewed the grant of judgment as a matter of law de novo, applying the familiar test: whether a reasonable jury would have a legally sufficient evidentiary basis to find for the nonmovant. Reeves supplied the caution not to weigh credibility and to draw all reasonable inferences for the nonmovant. Even with that favorable lens, the total absence of trial proof on favorable termination compelled affirmance.
Elements of malicious prosecution: Armstrong v. Ashley, 60 F.4th 262 (5th Cir. 2023); Jones v. Soileau, 448 So. 2d 1268 (La. 1984)
Armstrong articulated the seven elements for a Fourth Amendment malicious‑prosecution claim in the Fifth Circuit, including favorable termination and lack of probable cause, with an additional “unreasonable seizure” element for the federal claim. Jones identifies Louisiana’s similar elements (minus the seizure requirement). The court relied on these frameworks to conclude that the missing favorable‑termination proof doomed both claims.
Favorable termination is indispensable: Haygood v. Morrison, 116 F.4th 439 (5th Cir. 2024)
Haygood underscores that favorable termination is a required element. The panel quoted Haygood to emphasize that failure to prove favorable termination is independently fatal.
Trial record controls; summary‑judgment record does not carry over: Dupree v. Younger, 598 U.S. 729 (2023); Ortiz v. Jordan, 562 U.S. 180 (2011)
These Supreme Court cases make clear that once a case goes to trial, the sufficiency question turns on the trial record, which supersedes the summary‑judgment record. That principle foreclosed Thomas’s reliance on materials filed earlier (including the defendants’ concessions at summary judgment).
Judicial admissions require intentional waiver: Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474 (5th Cir. 2001); Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637 (5th Cir. 2019); American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401 (5th Cir. 2003); Suzlon Wind Energy Corp. v. Shippers Stevedoring Co., 662 F. Supp. 2d 623 (S.D. Tex. 2009)
Martinez and Mays define judicial admissions as intentional, formal concessions that relieve the opponent of proof. Because summary‑judgment briefing requires presenting facts in the light most favorable to the nonmovant (American Eagle Airlines), factual recitations or concessions at that stage generally do not signal an intent to waive the plaintiff’s burden at trial. The panel adopted that logic and cited Suzlon as in‑circuit district‑court accord.
Preservation and offers of proof: Federal Rule of Evidence 103(a)(2); United States v. Winkle, 587 F.2d 705 (5th Cir. 1979); Yazdchi v. American Honda Financial Corp., 217 F. App’x 299 (5th Cir. 2007)
Rule 103(a)(2) requires a party complaining about evidence exclusion to inform the court of the substance of the evidence via an offer of proof unless the substance is apparent from the context. Winkle reflects the Fifth Circuit’s strict approach: without an offer of proof, the court will not consider the exclusion on appeal. Yazdchi adds that pro se status does not excuse compliance with procedural rules. Because Thomas neither made a specific offer of proof nor made the substance of the state‑court records apparent, the panel deemed his evidentiary complaints unpreserved.
Appointment of counsel on appeal: Cooper v. Sheriff, Lubbock County, 929 F.2d 1078 (5th Cir. 1991)
Cooper sets the “exceptional circumstances” threshold for appointing counsel. The panel saw no such circumstances and denied Thomas’s motion.

Legal reasoning and application

Elemental failure on favorable termination warranted Rule 50(a)
The court began with the elements of malicious prosecution and identified favorable termination as a necessary component for both the federal and Louisiana claims. Although documentary proof of dismissal existed in earlier filings and Thomas’s pretrial statement indicated he planned to introduce it, he put on no trial evidence—no testimony and no document—showing how the criminal charges ended. Under Rule 50(a), that void left the jury with no legally sufficient basis to find the favorable‑termination element satisfied, compelling judgment for the defendants as a matter of law.
Trial record supersedes summary‑judgment record
Invoking Dupree and Ortiz, the panel emphasized that the appellate sufficiency review is confined to what the jury actually heard and saw. Whatever the summary‑judgment record contained—or what defendants may have accepted at that stage—did not replace Thomas’s burden to introduce evidence at trial.
Summary‑judgment concessions are not binding judicial admissions at trial
Thomas argued that the deputies’ summary‑judgment concession (that charges were dismissed) satisfied the favorable‑termination element without proof at trial. The court rejected that contention, reiterating that judicial admissions require an intentional waiver designed to relieve the opponent of proof. Statements calibrated to summary‑judgment standards, which require viewing facts in the nonmovant’s favor, typically lack that intent. The defendants’ concessions were therefore nonbinding, and Thomas still had to carry his trial burden.
Evidentiary complaints were unpreserved because no offer of proof was made
Thomas several times asked when he could introduce exhibits and was told he could not do so at that time (e.g., during cross‑examination or without a proper motion to admit). Even if some of those rulings were mistaken, the panel could not consider them because Thomas never made a Rule 103(a)(2) offer of proof detailing the excluded documents’ contents and relevance, and the substance was not otherwise apparent. General references to “exhibits 1–22” did not suffice. The Fifth Circuit’s strict preservation rule foreclosed appellate review.
Qualified immunity and probable cause issues unnecessary to resolve
Although the defendants also argued probable cause and qualified immunity, the district court granted Rule 50(a) on favorable termination and lack of evidence of no probable cause and declined to reach qualified immunity. On appeal, the Fifth Circuit needed only the favorable‑termination deficiency to affirm; thus, broader constitutional questions remained unaddressed.
No exceptional circumstances for appointed counsel
Applying Cooper, the panel found no exceptional circumstances warranting appointment of counsel on appeal and denied the motion.

Impact and practical significance

For § 1983 and state malicious‑prosecution plaintiffs: Favorable termination is a nonnegotiable trial element. Even if dismissal of charges is undisputed in discovery or summary‑judgment proceedings, plaintiffs must introduce competent trial evidence (e.g., certified dismissal orders or admitted stipulations) to establish the element. Failure to do so invites Rule 50(a) dismissal.
Trial‑record discipline post‑Dupree/Ortiz: The opinion operationalizes the Supreme Court’s instruction that the “trial record controls.” Lawyers must translate pretrial materials into admissible trial evidence. Pretrial victory (or concession) on a fact does not automatically carry into the jury trial unless formalized as a stipulation or admitted exhibit.
Summary‑judgment concessions are not a safety net at trial: Defense counsel’s factual statements in summary‑judgment briefing are not judicial admissions absent clear, intentional waiver. Plaintiffs who wish to rely on such points must secure an express stipulation (ideally in the pretrial order) or introduce their own proof at trial.
Preservation rigor in the Fifth Circuit—offers of proof are essential: The Fifth Circuit maintains a strict approach to Rule 103(a)(2). To challenge exclusions on appeal, parties must make offers of proof specifying the evidence, its content, and its relevance. Generic references to “my exhibits” are inadequate. This applies with equal force to pro se litigants.
Pro se litigants must follow the rules: The opinion reiterates that self‑representation does not relax procedural compliance. Trial courts may be patient, but on appeal, the absence of an offer of proof or the failure to move exhibits into evidence will be fatal to evidentiary claims.
Litigation strategy and pretrial management: Plaintiffs should:
- Prepare certified criminal‑case dispositions and move them into evidence through a sponsoring witness or by judicial notice where appropriate.
- Seek express stipulations on undisputed elements and embed them in the pretrial order.
- When an exhibit is excluded, immediately make a specific offer of proof on the record.
Defendants should:
- Avoid unintended waivers by couching summary‑judgment concessions carefully.
- Press Rule 50(a) motions when essential elements lack evidentiary support at trial.
Qualified immunity left for another day: Because the case was resolved on evidentiary sufficiency, the court did not address qualified immunity. Future malicious‑prosecution appeals may still present opportunities for the Fifth Circuit to refine qualified‑immunity doctrine post‑Armstrong and post‑Thompson v. Clark (at the Supreme Court level) on favorable‑termination standards, but this opinion contributes chiefly on procedure.
Unpublished but instructive: While not precedential under Fifth Circuit Rule 47.5, the opinion is a useful citation for the Fifth Circuit’s preservation doctrine and the trial‑record/summar‑judgment distinction.

Complex concepts simplified

Judgment as a matter of law (Rule 50(a)): A mid‑ or post‑trial ruling that, even taking the nonmovant’s evidence as favorably as reasonably possible, a required element lacks sufficient evidence for a reasonable jury to find in the nonmovant’s favor. If an essential element fails, the court can take the issue away from the jury.
Favorable termination: In malicious‑prosecution claims, the plaintiff must prove the criminal case ended favorably (for example, dismissal or acquittal). It is not enough that charges were filed; the end result must be shown at trial with admissible proof.
Judicial admission: A binding, deliberate concession—usually in pleadings or stipulations—that relieves the opponent from proving a fact. Casual statements or litigation positions in summary‑judgment briefs, which are framed under a special standard, generally are not judicial admissions unless they clearly reflect an intent to waive proof at trial.
Offer of proof (Rule 103(a)(2)): When a court excludes evidence, the proponent must place on the record what the evidence is and why it matters so that an appellate court can review the ruling. Without that proffer, appellate review is typically unavailable in the Fifth Circuit.
Trial record controls: Once a case goes to a jury, appellate courts assess sufficiency based on what the jury actually heard and saw. Materials from earlier stages (like summary judgment) do not substitute for trial evidence.
Malicious prosecution (federal vs. Louisiana): Both require proof of initiation of charges, legal causation, favorable termination, lack of probable cause, malice, and damages. The federal version also requires an unreasonable seizure under the Fourth Amendment; Louisiana tort law does not.
Qualified immunity: A defense for government officials sued under § 1983, shielding them unless they violated clearly established rights. The court did not need to address it here because the plaintiff failed to prove an essential element of his claims.

Conclusion

Thomas v. Parker is a procedural clarion call. It reaffirms three bedrock rules in the Fifth Circuit: (1) at trial, plaintiffs bear the burden to introduce admissible evidence on every element—prior filings do not substitute; (2) summary‑judgment concessions are not judicial admissions absent an unmistakable intent to waive proof at trial; and (3) evidentiary challenges are unreviewable on appeal without a proper offer of proof, even for pro se litigants.

Substantively, the opinion underscores that favorable termination is indispensable to malicious‑prosecution claims under both § 1983 (as framed in Armstrong) and Louisiana law (Jones). Procedurally, it operationalizes Dupree and Ortiz’s directive that the trial record governs, pairs that with a strict Rule 103 preservation requirement (Winkle), and situates judicial‑admission doctrine (Martinez, Mays) firmly against casual transposition of summary‑judgment positions to trial. Though unpublished, the decision provides a practical roadmap—and warning—for litigants: convert undisputed facts into stipulations or admitted exhibits, and preserve evidentiary issues with clear, specific offers of proof.