The opinion
Case: 23-30194 Document: 105-1 Page: 1 Date Filed: 09/17/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 17, 2024
No. 23-30194
Lyle W. Cayce
____________ Clerk
Ryan Haygood; Haygood Dental Care, L.L.C.,
Plaintiffs—Appellants,
versus
Camp Morrison; C. Barry Ogden; Karen Moorhead;
Dana Glorioso,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
______________________________
ON PETITION FOR REHEARING EN BANC
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Per Curiam:
Treating the petition for rehearing en banc as a petition for panel re-
hearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is DE-
NIED. Because no member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc (Fed. R. App. P. 35
and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.
The opinion issued August 15, 2024, 2024 U.S. LEXIS 20684, is
WITHDRAWN, and the following is SUBSTITUTED:
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* * * * *
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Jerry E. Smith, Circuit Judge:
This appeal arises from an investigation by the Louisiana State Board
of Dentistry (“the Board”) into Ryan Haygood, a dentist who practiced in
the Shreveport/Bossier City area. Haygood opened a new practice that suc-
cessfully recruited patients from other established dentists. Upset, those
established dentists allegedly conspired to drive Haygood from the market by
using their influence with, and positions on, the Board to revoke Haygood’s
dental license. Beginning in late 2006, the Board launched an investigation
of Haygood that led to the revocation of his license in 2010.
A sprawling legal quagmire unfolded over the next several years, but
only small bits are relevant to this appeal. Specifically, in 2012, a Louisiana
appellate court vacated the Board’s revocation after holding that the Board
had deprived Haygood of due process by allowing a Board attorney to serve
both prosecutorial and adjudicative roles. Haygood then entered a consent
decree with the Board that allowed him to keep his license.
While that appeal was pending, Haygood filed a civil action in state
court against numerous individuals involved in, and affiliated with, the inves-
tigation. The state court civil action alleged violations of Haygood’s due pro-
cess rights and averred that the competing dentists, the Board members, and
Board employees had engaged in unfair competition by using the Board’s
investigative powers to drive him from the marketplace. In February 2013,
about two years after filing the state complaint, and after the disposition of
the state appeal, Haygood sued in federal court claiming, inter alia, injuries
under 42 U.S.C. § 1983 and the Louisiana Unfair Trade Practices Act
(“LUTPA”), La. R.S. 51:1401 et seq. The federal complaint and state com-
plaint contained nearly identical factual allegations.
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The district court dismissed the federal complaint for failure to state
claims under § 1983 and the LUTPA. The district court also found that both
claims were frivolous and awarded attorney’s fees to the defendants. Hay-
good appealed the fee award only, averring that the district court erred in
awarding fees and, alternatively, was erroneous in its fee calculation.
The district court did not err in awarding fees for a frivolous § 1983
claim, but it made a mistaken calculation of the amount. Therefore, we affirm
the decision to award fees but remit the award to $98,666.50.
I.
Haygood contended that the competing dentists helped fabricate
complaints to the Board concerning his treatment of periodontal issues, so
the Board launched an investigation into Haygood’s practice based on those
complaints. Numerous instances of alleged impropriety followed. Relevant
here, H.O. Blackwood—a competitor of Haygood’s and a director of the
Board—communicated with C. Barry Ogden, the executive director of the
Board, and Camp Morrison, an investigator with the Board. Blackwood,
Ogden, and Morrison allegedly took steps to tilt Board proceedings in a way
that would ensure Haygood’s loss of license.
For example, Ogden appointed Brian Begue as independent counsel
for the Board during Haygood’s hearings. The independent counsel is sup-
posed to provide neutral advice and recommendations to Board members
(who are mostly medical professionals) and may not “participate[] in the
investigation or prosecution of the case.” Yet “Begue repeatedly disregard-
ed this role and interjected himself into the hearing” by “cross examining
witnesses, providing supportive information to complaint counsel, providing
and suggesting objections to complaint counsel and openly questioning the
testimony of Dr. Haygood.”
Ogden and Morrison also designated Robert Dies as an expert to tes-
3
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tify against Haygood despite knowing that Dies was a direct competitor of
Haygood’s and that the relationship between the two was “antagonistic.”
Dies lacked experience in periodontal dentistry. Though the Board ended up
appointing a new expert, it still used Dies’s testimony in the proceeding.
Finally, Morrison engaged Karen Moorhead and Dana Glorioso as
investigators to pose as fake patients to gather incriminating evidence against
Haygood. But Moorhead and Glorioso were neither law enforcement officers
nor licensed private investigators—they were dental assistants who worked
for former and current Board members. Thus, they may have violated Loui-
siana law by posing as patients in Morrison’s investigation.1
The Board “found Dr. Haygood guilty of eight specifications under
two separate charges, ordered permanent revocation of his dentistry license,
and assessed the maximum monetary fine allowed by law[,] $40,000, award-
ing all costs at $133,074.02, for a total of $173,074.02.” Haygood v. La. State
Bd. of Dentistry, 101 So. 3d 90, 93 (La. Ct. App. 2012). Haygood appealed to
the state trial court, which largely affirmed the substantive findings but
remanded for reconsideration of the sanctions. Id. at 94. The Board reduced
the monetary penalty by $5,000, but maintained the license revocation, and
the trial court affirmed. Id.
The state appellate court, however, “reverse[d] the trial court’s judg-
ment which affirmed the revocation of Dr. Haygood’s license and re-
mand[ed] th[e] matter to the Board for a new hearing.” Id. at 92. The appel-
late court reasoned that “the combination of the Board’s general counsel’s
[Begue’s] roles of prosecutor and adjudicator violated Dr. Haygood’s [fed-
_____________________
1
See La. Rev. Stat. Ann. § 37:3520(A): “It shall be unlawful for any person
knowingly to commit any of the following acts . . . [p]rovide contract or private investigator
service without possessing a valid license [or] [e]mploy an individual to perform the duties
of a private investigator who is not the holder of a valid registration card.”
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eral and state] due process rights.” Id. at 92, 96–97. The Louisiana Supreme
Court denied the Board’s petition for review,2 and the Board and Haygood
eventually entered a consent decree, in 2016, resolving the dispute and allow-
ing Haygood to keep his license.
Haygood filed two lawsuits against Morrison, Ogden, Moorhead, and
Glorioso during the pendency of those proceedings. The first was filed on
September 26, 2011, in state district court (“the state complaint”). The sec-
ond was filed on February 13, 2013, in federal district court (“the federal
complaint”). The state complaint alleged violations of the Louisiana Consti-
tution’s due process clause and that the defendants engaged in unfair trade
practices. The federal complaint alleged, inter alia, violations of LUTPA and
§ 1983. Both complaints contained nearly identical factual allegations, paral-
leling what we have set out above.
The federal district court dismissed the federal complaint for failure
to state a claim. With respect to the LUTPA claim, the court held that
Haygood could not plausibly claim that any named defendant had done any
act that would enable him or her to gain a competitive advantage over Hay-
good. With respect to the § 1983 claim, the court held that it had been filed
outside the statute of limitations and was therefore prescribed.
Defendants in the federal case then sought attorney’s fees under
42 U.S.C. § 1988 and La. Rev. Stat. Ann. § 51:1409(A). The district
court found that fees under § 1988 were warranted because “the plaintiffs
clearly knew, or should have known,” that the § 1983 claim was “clearly
time-barred.” The court also found that fees under § 51:1409(A) were war-
ranted because “the Haygood Plaintiffs’ [sic] failed to allege any act by
Defendants which would enable them to achieve an unfair competitive
_____________________
2
2012-2333 (La. 12/14/12), 104 So. 3d 445.
5
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advantage.” The court awarded the defendants “attorneys’ fees and costs
in the amount of $110,993.62.”
Haygood appealed only the fee award and does not challenge the
underlying dismissal of his claims. He maintains that the district court erred
in holding that (1) his § 1983 claim was so clearly time-barred as to be frivo-
lous; (2) his LUTPA claim was groundless and brought in bad faith or for the
purposes of harassment; and (3) $110,993.62 was a reasonable award.
II.
“We review an award of attorney’s fees under § 1988 for abuse of dis-
cretion. A district court abuses its discretion if it awards sanctions based on
an erroneous view of the law or a clearly erroneous assessment of the evi-
dence.” Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999) (internal
quotation marks and citations omitted).
Section “1988 authorizes a district court to award attorney’s fees to a
defendant upon a finding that the plaintiff’s [§ 1983] action was frivolous,
unreasonable, or without foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011)
(internal quotation marks and citations omitted). A claim is frivolous under
§ 1988 if it is not “colorable” and lacks “arguable merit.” Vaughn v. Lewis-
ville Indep. Sch. Dist., 62 F.4th 199, 204 (5th Cir. 2023) (quoting Vaughner v.
Pulito, 804 F.2d 873, 878 (5th Cir. 1986)). To make that determination, a
district court may consider various “factors,” such as, inter alia, whether the
plaintiff “established a prima facie case” or whether the claims were fore-
closed by “squarely controlling precedent.” Id. at 204–05 (internal citations
omitted).
Haygood’s § 1983 claim alleged that the defendants “deprived Dr.
Haygood of his right to a fair and impartial hearing; presented knowingly false
or exaggerated claims; [and] provided evidence obtained through unlawful
means . . . .” As discussed above, Haygood’s due process rights were likely
6
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violated by at least some of the named defendants during the pendency of the
Board’s investigation. Assuming arguendo that that established a prima facie
case, the propriety of the § 1988 fee award turns on whether the district court
properly found the federal complaint time-barred and whether the time bar
outweighed the underlying merits. It did.3
“Congress did not provide a statute of limitations for claims brought
under 42 U.S.C. § 1983.” Brown v. Pouncy, 93 F.4th 331, 332 (5th Cir. 2024),
petition for cert. filed (U.S. June 18, 2024) (No. 23-1332). Instead, “a forum
state’s general or residual statute of limitations for personal injury claims
applies to Section 1983 claims. In Louisiana, that period is one year.” Id.
(citations omitted).4 “Although courts look to state law for the length of the
limitations period, the time at which a § 1983 claim accrues is a question of
federal law, conforming in general to common-law tort principles.” McDon-
ough v. Smith, 588 U.S. 109, 115 (2019) (internal quotation marks and citation
omitted). That means, in Louisiana, the limitations period for a § 1983 claim
_____________________
3
The defendants averred, for the first time at oral argument, that Haygood’s notice
of appeal was defective because it designated only the order setting the fee amount, not the
separate order awarding fees in the first place. But in our circuit, “an appeal from a final
judgment sufficiently preserves all prior orders intertwined with the final judgment.” Jor-
dan v. Ector Cnty., 516 F.3d 290, 294 (5th Cir. 2008) (internal quotation marks and citation
omitted). And “an order awarding attorney’s fees or costs is not reviewable on appeal until
the award is reduced to a sum certain,” meaning an “order [that] does not reduce the sanc-
tions to a sum certain . . . is not an appealable final decision.” S. Travel Club v. Carnival
Air Lines, 986 F.2d 125, 131 (5th Cir. 1993) (per curiam).
Haygood’s notice of appeal designated the final decision with respect to the award
of fees and costs because it designated the order setting the award amount. See Davis v.
Abbott, 781 F.3d 207, 213 n.5 (5th Cir. 2015). Thus, the notice of appeal “sufficiently pre-
serve[d]” challenges to the order awarding fees, and we have jurisdiction to review both
the award of fees and the fee amount. See Jordan, 516 F.3d at 294.
4
Effective July 1, 2024, Louisiana’s statute of limitations for delictual actions, or
torts, is two years. See Tort Actions, 2024 La. Sess. Law Serv. Act 423 (H.B. 315).
The two-year limitations period applies only to actions arising after July 1, 2024. Id.
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is one year from when the plaintiff knew or should have known that he “has
a complete and present cause of action” under “analogous common-law
torts.” Id. at 115–16 (cleaned up).5
The parties dispute the tort to which Haygood’s claim is most analo-
gous. Haygood avers that his claims are analogous to malicious prosecution
and/or fabrication of evidence.6 An action under § 1983 analogous to malici-
ous prosecution or fabrication of evidence accrues upon “favorable termin-
ation of [the] prosecution.” Id. at 117. The defendants contend that those
torts cannot be analogous because Haygood filed his federal complaint well
before the favorable termination of the Board’s proceedings.7
The defendants are correct. Malicious prosecution requires, as an ele-
ment of the tort, the favorable termination of proceedings. See Restate-
ment (Second) of Torts § 658 (Am. Law Inst. 1965). Haygood
entered a consent decree that brought the investigation to a close on June 9,
2016. That decree likely represented the favorable termination of the
Board’s proceedings.8 The state appellate court’s decision vacating the
Board’s fine and license suspension was not a favorable termination because
the court “remand[ed] th[e] matter to the Board for a new hearing.” Hay-
_____________________
5
See also Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987) (“[T]he statute of
limitations begins to run from the moment the plaintiff becomes aware that he has suffered
an injury or has sufficient information to know that he has been injured.” (citations
omitted)).
6
The Supreme Court has treated the common-law torts of malicious prosecution
and fabrication of evidence as interchangeable. See McDonough, 588 U.S. at 116.
7
As noted above, the federal complaint was filed on February 13, 2013, and the
consent decree was entered June 9, 2016.
8
Cf. Thompson v. Clark, 596 U.S. 36, 39 (2022) (“To demonstrate a favorable
termination of a . . . § 1983 [claim] for malicious prosecution, a plaintiff need only show
that his prosecution ended without a conviction.”).
8
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good, 101 So. 3d at 98.9 That means malicious prosecution and/or fabrication
of evidence cannot be the analogous tort.
The defendants do not postulate an analogous tort. Rather, they insist
that any analogous, and otherwise viable, common-law tort claim―arising
from the 2006-2010 Board proceedings culminating in the revocation of Hay-
good’s dental license, including the complaints made and the investigation
thereof―had accrued on or before September 26, 2011, when he filed his state
court action.
The defendants are again correct. Wallace v. Kato, 549 U.S. 384, 388
(2007) (cleaned up). Therefore, the one-year limitations began to run on
September 26, 2011, and the district court did not err in finding that the Feb-
ruary 13, 2013, federal complaint was so clearly time-barred that it lacked
arguable merit.
III.
Having determined that the district court did not err in awarding fees
under § 1988, we turn to whether it calculated the fee award properly. It did
not.10
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9
See also id. at 46 (“The technical prerequisite is only that the particular prosecu-
tion be disposed of in such a manner that it cannot be revived.” (cleaned up)). Something
remanded for further proceedings can, of course, be revived in the sense that the tribunal
could reach the same disposition.
10
The district court also found that fees were warranted under La. Rev. Stat.
Ann. § 51:1409(A) because Haygood’s LUTPA claim was groundless and brought in bad
faith. But the court focused entirely on the § 1988 award when setting the fee amount,
using the associated federal standards exclusively to award $110,261.16 in fees and $732.46
in costs.
Contrary to Haygood’s contentions, it was not error for the court to rely entirely
on the federal standards in calculating the fee amount. “A court need not segregate fees
where the facts and issues are so closely interwoven” that separation of the work done on
each issue is impracticable. Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 528
9
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“[A]n award of attorney’s fees under section 1988 should normally be
based on multiplying a reasonable number of hours worked by a reasonable
rate of compensation.” Cobb v. Miller, 818 F.2d 1227, 1231 (5th Cir. 1987).
That “lodestar method yields a fee that is presumptively sufficient” to con-
stitute a “reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552
(2010). The presumptively sufficient fee may then be enhanced if “a fee
applicant” produces “specific evidence” of factors not already “subsumed
in the lodestar calculation.” Id. at 553 (internal quotation marks and citations
omitted). Overarching all of that is the district court’s broad discretion to
“determine whether the time expended by [movant’s] counsel was reasona-
ble.” Riverside v. Rivera, 477 U.S. 561, 573 n.6 (1986).
Haygood avers that the district court did not closely scrutinize the
time reports submitted by the defendants. The record belies that contention
for most of the fees awarded. The defendants’ private attorneys requested
$103,392.60. The court, however, went line-by-line, multiplying the hours
worked by a reasonable hourly rate, and ultimately determined that defen-
dants’ private attorneys had miscalculated. Thus, the court awarded
_____________________
(5th Cir. 2001) (citation omitted). That is why, where the “issues [are] difficult to segre-
gate, no reduction of fees is required.” Abell v. Potomac Ins. Co., 946 F.2d 1160, 1169 (5th
Cir. 1991) (citations omitted).
There was extensive overlap between Haygood’s § 1983 claim and his LUTPA
claim. Indeed, both were premised on identical factual allegations; the relevant motion
practice dealt with both claims. The LUTPA claim was “so closely interwoven” with the
§ 1983 claim that the district court did not err in using the federal standard exclusively and
in failing to differentiate between the time billed on the LUTPA claim and the time billed
on the § 1983 claim. See Mota, 261 F.3d at 528. That decision, though proper, has the effect
of rendering irrelevant the district court’s finding that fees were warranted under
§ 51:1409(A). Because the court based the fee calculation entirely on § 1988, there is no
need to assess whether the findings under § 51:1409(A) were correct—the reasonableness
of the award turns entirely on whether the court calculated the fee award under § 1988
properly.
10
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$98,666.50. Given the court’s obvious care and attention to the amount
billed by the private attorneys, we cannot say it abused its discretion in setting
the lodestar at $98,666.50.11
The court also awarded $11,594.66 for time billed by the Louisiana
Attorney General’s office. But the court did not use the lodestar method
because “a change in data tracking procedures” at the Attorney General’s
Office deprived the court of “the number of hours or hourly rates billed by
attorneys at the Louisiana Office of the Attorney General.” Thus, the court
was provided with only the “Total Amount Billed” by each state attorney.
The court accepted the word of the state’s attorneys and awarded the total
amount they said they billed.
Our precedent does not permit the district court to bypass the lodestar
in that way.12 We have no idea how many hours the state’s lawyers attorneys
spent; that dooms any fee award on their behalf.
Thus, the district court committed an error of law (and hence abused
its discretion) by awarding $11,594.66 in fees without using the lodestar
method. We remit the fee award to $98,666.50—the amount calculated
properly.
For the reasons explained, we AFFIRM the decision to award fees
for a frivolous § 1983 claim but REMIT the fee award to $98,666.50. The
award of costs is not affected.
_____________________
11
The district court did not add any enhancements. It did award the defendants
costs of $732.46, but Haygood does not contest that.
12
See Combs v. City of Huntington, 829 F.3d 388, 392 (5th Cir. 2016) (“The court
must first calculate the lodestar, which is equal to the number of hours reasonably expended
multiplied by the prevailing hourly rate . . . .” (emphasis added) (internal quotation marks
and citation omitted)).
11