Opinion
Civil Action, NO. 00-1623, Section "T"(3)
April 15, 2002
Plaintiff, Kelly O'Keefe Barker, filed the above captioned complaint asserting federal claims pursuant to 42 U.S.C. § 1983 for false arrest, malicious prosecution, violation of due process, conspiracy, and state claims for false arrest, malicious prosecution, and defamation. The defendants in the original complaint were Corky McBride, William Whittington, the Louisiana State Police, Scott M. Perrilloux, the Twenty-First Judicial District Court, the Parish of Tangipahoa, and the Tangipahoa Parish Council. Plaintiff requested injunctive relief and monetary damages.
At a pretrial conference held on March 21, 2002, plaintiff indicated that she only intended to pursue the federal claims for false arrest and malicious prosecution as well as the state claims. Plaintiff abandoned her federal claims alleging violation of due process and conspiracy.
Rec. Doc. 1.
On October 16, 2000, plaintiff filed a formal stipulation dismissing with prejudice all claims against Scott M. Perrilloux, the Twenty-First Judicial District Court, the Parish of Tangipahoa, and the Tangipahoa Parish Council. On November 3, 2000, motions to dismiss filed by William Whittington and the Louisiana State Police were granted as unopposed. On November 28, 2000, plaintiff amended her complaint to reflect that the true name of the sole remaining defendant, "Corky McBride," was Leland A. Dwight.
Rec. Doc. 15.
Rec. Doc. 20.
Rec. Doc. 24.
On March 7,2002, defendant filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, on the grounds that he is entitled to qualified immunity on the federal claims, that plaintiff has failed to establish the elements necessary to prove her state law claims, and that there is no genuine issue of material fact. Plaintiff filed a memorandum in opposition on March 20, 2002. The parties previously consented to the jurisdiction of the undersigned magistrate judge. For the following reasons, the motion for summary judgment is GRANTED.
Rec. Doc. 40.
Rec. Doc. 41.
Rec. Doc. 31.
In 1995, defendant, Leland A. Dwight, a Louisiana State Trooper, was involved in a drug trafficking investigation. During the course of that investigation, defendant and others were called to testify before a grand jury in the case of State of Louisiana v. Kathy Abels. et al., No. 86959, Louisiana Twenty-first Judicial Court for the Parish of Tangipahoa.
Rec. Doc. 40, Exhibit A, pp. 7-10.
Rec. Doc. 40, Exhibit B, ¶ 3.
On or about June 25, 1998, the grand jury returned an indictment charging twenty-three individuals with racketeering and drug-related activities. Plaintiff, Kelley O'Keefe Barker, was among those named in the indictment and she was charged with two crimes, i.e. racketeering and conspiracy to possess with intent to distribute marijuana. Pursuant to that indictment, a Twenty-First Judicial District Court judge issued an arrest warrant for all twenty-three persons named in the indictment. Based on the warrant, defendant arrested plaintiff on July 7, 1998. From that date, plaintiff remained incarcerated in the Tangipahoa Parish Jail until she was released on bond on July 17, 1998.
Rec. Doc. 40, Exhibits B, ¶ 4, and B1.
Rec. Doc. 40, Exhibits B, ¶ 4, and B1.
Rec. Doc. 40, Exhibits B, ¶ 5, and B2.
Rec. Doc. 40, Exhibits B, ¶ 7, and C, ¶ 2. All twenty-three persons charged in the indictment were arrested. Rec. Doc. 40, Exhibit B, ¶ 6. Twenty-one of the individuals were subsequently convicted of one or more criminal charges. Rec. Doc. 40, Exhibit B, ¶ 8. One of the individuals remains a fugitive. Rec. Doc. 40, Exhibit B, ¶ 8.
Rec. Doc. 1, ¶ 9.
The criminal charges against plaintiff were dismissed on or about June 3, 1999. According to the affidavit of Assistant District Attorney Jeff Johnson, the charges against plaintiff were dismissed not because of a lack evidence but rather to conserve judicial time and resources.
Rec. Doc. 40, Exhibit B, ¶ 9.
Rec. Doc. 40, Exhibit B, ¶ 9.
In reviewing a motion for summary judgment, the Court may grant judgment when no genuine issue of material fact exists and the mover is entitled to judgment as a mailer of law. Fed.R.Civ.P. 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the United States Supreme Court indicated that the party seeking summary judgment must point out the absence of evidence showing a genuine issue of material fact. See Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001). The party opposing sumrnaryjudgment, who bears the burden at trial, must then "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56); see also Provident Life Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). "`[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for ajury to return a verdict for that party. . . . If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.'" Thomas v. Barton Lodge II. Ltd., 174 F.3d 636,644(5th Cir. 1999) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted)).
"[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)). "After the nonmovant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summaryjudgment will be granted." Caboni v. General Motors Corp., 278 F.3d 448,457 (5th Cir. 2002); see also Texaco. Inc. v. Duhe, 274 F.3d 911, 915 (5th Cir. 2001) ("If a party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial, there ceases to be a genuine issue as to any material fact, such that the moving party is entitled to judgment as a matter of law."). Because the malicious prosecution and false arrest claims are factually and legally interrelated, the Court will consider them together.
Plaintiffs malicious prosecution claim is premised on her belief that defendant caused her to be indicted when he gave false testimony before and withheld relevant evidence from the grand jury. Relatedly, based on her belief that the grand jury's deliberations were tainted in that manner, plaintiff claims that her subsequent arrest, which flowed from the allegedly tainted grand indictment, was a constitutional violation. Defendant argues that he is entitled to qualified immunity as to both claims and that he is, therefore, entitled to summary judgment.
In Piazza v. Mayne, 217 F.3d 239 (5th Cir. 2000), the plaintiff filed a malicious prosecution claim pursuant to 42 U.S.C. § 1983 against a state enforcement agent of the Louisiana Department of Wildlife and Fisheries. The enforcement agent moved for summaryjudgment, asserting a defense of qualified immunity. In considering the motion, the Fifth Circuit noted:
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Determining whether a public official is entitled to qualified immunity from liability under § 1983 is potentially a two-step inquiry. First, the court must decide whether the official's conduct violated a right recognized under current constitutional law, and whether that right was clearly established at the time of the official's conduct. If the court finds that the official's conduct violated a clearly established constitutional right, the court must then consider whether the official is nonetheless entitled to qualified immunity because his conduct was objectively reasonable in light of the law at the time the conduct occurred.Piazza, 217 F.3d at 244 (internal quotation marks, brackets and citations omitted).
The Fifth Circuit stated that in order to avoid summary judgment on the first step of the qualified immunity inquiry, the plaintiff had to establish the elements of the underlying malicious prosecution claim.Id. at 245. Accordingly, the Court must determine whether plaintiff has presented sufficient evidence with respect to the elements of her § 1983 malicious prosecution claim so as to withstand defendant's motion for summary judgment.
Regarding malicious prosecution claims brought pursuant to 42 U.S.C. § 1983, the Fifth Circuit has noted:
This court has recognized that malicious prosecution implicates rights guaranteed by the Fourth Amendment and is therefore actionable under § 1983. We recognize that there is some authority in our circuit for the proposition that the reviewing court looks to the elements of this tort as defined under the law of the relevant state in determining whether a plaintiff has established a claim of malicious prosecution under § 1983.Piazza, 217 F.3d at 245 (citations omitted). The Fifth Circuit further noted that, pursuant to Louisiana law, the tort of malicious prosecution has six elements:
In Piazza, the parties implicitly conceded that the elements of malicious prosecution under Louisiana tort law and constitutional tort law were the same; therefore, the Fifth Circuit "assume[d] without deciding that the requirements are coextensive in the context of a § 1983 action." Piazza, 217 F.3d at 245.
(1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.Piazza, 217 F.3d at 245 (quoting Miller v. East Baton Rouge Parish Sheriff's Dep't, 511 So.2d 446, 452 (La. 1987)).
Plaintiff's malicious prosecution claim is premised on her allegations that defendant caused her indictment by the grand jury when he gave false testimony and withheld relevant evidence. Plaintiff, however, has submitted no evidence whatsoever to support her allegations that (1) defendant testified falsely before the grandjury, (2) defendant withheld relevant information from the grand jury, or (3) the grand jury indictment was based solely on defendant's testimony, rather than on other testimony or evidence presented to the grand jury. The Court recognizes that plaintiff's ability to secure and present such evidence is made difficult by the cloak of secrecy pursuant to which Louisiana grand juries operate. Nevertheless, when a motion for summary judgment has been filed, the nonmovant who bears the burden of proof at trial is not excused from the obligation to present the required evidence simply because the task is difficult. See. e.g., Anderson v. Liberty Lobby. Inc., 477 U.S. 242,256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Plaintiff has offered no evidence to establish the presence of malice or the absence of probable cause for the indictment. Plaintiff has made no showing that she could produce any such evidence at trial. Because of that failure, pursuant to Piazza, plaintiff cannot satisfy the first step of the qualified immunity inquiry and, accordingly, defendant is entitled to qualified immunity and to summary judgment on that claim as a matter of law.
As noted, defendant was not the only witness who appeared before the grand jury. Rec. Doc. 40, Exhibit B, ¶ 3.
La.C.Cr.P. art. 434 (West 1991) provides:
A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other mailers occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court. B. Whenever a grand jury of one parish discovers that a crime may have been committed in another parish of the state, the foreman of that grand jury, after notifying his district attorney, shall make that discovery known to the attorney general. The district attorney or the attorney general may direct to the district attorney of another parish any and all evidence, testimony, and transcripts thereof, received or prepared by the grand jury of the former parish, concerning any offense that may have been committed in the latter parish, for use in such latter parish. C. Any person who violates the provisions of this article shall be in constructive contempt of court.
In Anderson, the Supreme Court noted that a plaintiff may not "defeat a defendant's properly supported motion for summary judgment in a conspiracy or libel case, for example, without offering any concrete evidence from which a reasonable juror could return a verdict in his favor and by merely asserting that the jury might, and legally could, disbelieve the defendant's denial of a conspiracy or legal malice."Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The Court observed, "[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summaryjudgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery." Id. at 257, 106 S.Ct. at 2514.
With respect to the probable cause issue, the Court observes that as part of defendant's investigation, a notebook was seized from the alleged ringleader of the drug enterprise, Daniel Cooper. Rec. Doc. 40, Exhibit A, p. 16. That notebook contained coded entries that defendant allegedly interpreted as records of drug transactions between Cooper and others. Rec. Doe. 40, Exhibit A, p. 16. Based on "interviews from people arrested and people not arrested," as well as telephone numbers contained in the notebook, defendant came to believe that some of the entries related to plaintiff Rec. Doc. 40, Exhibit A, pp. 33-34. Among the telephone numbers contained in the notebook were ones for plaintiff's pager and her mother's residence. Rec. Doc. 40, Exhibit A, p. 35. Defendant also received from a confidential informant information which implicated plaintiff. Rec. Doc. 40, Exhibit A, p. 64.
The Fifth Circuit has noted, "[P]robable cause does not demand any showing that the belief that an offense was committed be correct or more likely true than false. Rather, the probable cause analysis only requires that we find a basis for an officer to believe to a fair probability that a violation occurred." Piazza, 217 F.3d at 246 (internal quotation marks, brackets, and citations omitted).
Plaintiff's inability to prove her allegations regarding defendant's actions before the grand jury likewise dooms her related false arrest claim. It is true that pursuant to 42 U.S.C. § 1983, the Fifth Circuit recognizes a cause of action for false arrest. Sanders v. English, 950 F.2d 1152,1159 (5th Cir. 1992). However, normally, "[w]here an arrest is made under authority of a properly issued warrant, the arrest simply is not a false arrest." Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982). As the Fifth Circuit has noted:
It is well settled that 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 false arrest, insulating the initiating party. This Court has held that "an officer who acted with malice in procuring the warrant or the indictment will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary's independent decision breaks the causal chain and insulates the initiating party." Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988) (internal quotations omitted). The Hand court emphasized that the chain of causation is broken only where all the facts are presented to the grand jury or magistrate and the malicious motive of the officer does not lead him to withhold any relevant information. Id. at 1428.Taylor v. Gregg, 36 F.3d 453, 456-57 (5th Cir. 1994) (citations omitted).
Defendant arrested plaintiff based on an arrest warrant which was issued after the grand jury indictment was returned. While plaintiff argues that her claim falls within the exception noted above because defendant maliciously testified falsely before and withheld relevant evidence from the "independent intermediary," i.e. the grand jury, she has no evidence whatsoever to support her allegations that defendant was malicious, that his testimony was false, or that he withheld material information. There is no evidentiary basis for finding that defendant's arrest of plaintiff based on a facially valid arrest warrant was in any way legally improper or constituted an actionable false arrest. Plaintiff, therefore, has not established the elements of a viable false arrest claim. Because of such failure, plaintiff cannot satisfy the first step of the qualified immunity inquiry and, accordingly, defendant is entitled to qualified immunity and to summary judgment on the claim as a matter of law.
Rec Doc. 40, Exhibits B, ¶¶ 5 and 7, B2, and C, ¶ 2.
Plaintiff presents state law claims for malicious prosecution, false arrest, and defamation. Defendant correctly moves for summary judgment on the basis that plaintiff has failed to make an adequate showing as to the elements of those state law claims.
Plaintiff lacks the proof necessary to establish the elements of a state malicious prosecution claim, including the presence of malice and the absence of probable cause for the indictment. Similarly, a false arrest claim pursuant to Louisiana law will not be successful if the plaintiff is arrested pursuant to a valid warrant and plaintiff has no proof that the arrest warrant was invalid. With respect to plaintiffs defamation claim, plaintiff has not presented evidence that defendant published defamatory words, that he spoke falsely, or that he acted with actual or implied malice. A jury would have no basis for returning a verdict favorable to the plaintiff on her state law claims. Accordingly, defendant is entitled to summary judgment on the claims as a matter of law.
The elements of a malicious prosecution claim pursuant to Louisiana law are:
(1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintift (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.Miller v. East Baton Rouge Parish Sheriffs Dep't, 511 So.2d 446,452 (La. 1987).
See note 22, supra.
To recover for false arrest under Louisiana law, a plaintiff must prove that he was detained unlawfully by the police against his will.Harrison v. State, 721 So.2d 458, 461 (La. 1998). "If a person is arrested pursuant to a valid warrant, there is no false arrest . . ."Jenkins v. Baldwin, 801 So.2d 485, 496 (La.App. 4th Cir. 2001).
elements of a defamation claim pursuant to Louisiana law are "(1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury." Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1105 (La. 1988).
Conclusion
For the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, Leland A. Dwight, for summary judgment is hereby GRANTED and that plaintiffs claims be DISMISSED WITH PREJUDICE.