The opinion
Case: 11-30111 Document: 00511576832 Page: 1 Date Filed: 08/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2011
No. 11-30111
Summary Calendar Lyle W. Cayce
Clerk
TERRANCE T. BROWN,
Plaintiff–Appellant,
v.
MATT HILL; GEORGE BRITTON; SHANNON HARKINS; JAMES HINDMON;
LARRY KNIGHT; LARRY LUDLOW; ROYCE TONEY,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:09-CV-2170
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Terrance T. Brown, who is now Louisiana prisoner # 432458, appeals from
the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 complaint
regarding his arrest and prosecution, and he moves this court for leave to
proceed in forma pauperis (IFP). By moving for leave to proceed IFP, Brown is
challenging the district court’s certification that his appeal is not taken in good
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30111
faith because it is frivolous. See 28 U.S.C. § 1915(a)(3); Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
Brown’s claims against Matt Hill, Shannon Harkins, James Hindmon,
Larry Knight, and Larry Ludlow, the Ouachita Parish Sheriff’s Office
investigating and arresting deputies; Royce Toney, the Ouachita Parish Sheriff;
and George Britton, his state court-appointed defense counsel, are based on the
alleged illegality of his arrest. The district court granted summary judgment in
favor of these defendants, concluding that Brown’s claims were barred under
Heck v. Humphrey, 512 U.S. 477 (1994), and, alternatively, that the claims failed
on the merits. The district court’s reliance on Heck was misplaced, as there is
insufficient information in the record to determine whether Brown’s probation
revocation was based on the allegedly illegal arrest or whether any evidence
obtained as a result of Brown’s arrest was used to secure the revocation of his
probation. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (per curiam).
The district court’s grant of summary judgment on the merits was proper,
however. See Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011) (per curiam)
(“[D]istrict courts may bypass the impediment of the Heck doctrine and address
the merits of the case.”). Brown’s claims are based on the alleged illegality of his
arrest, specifically, that the police officers who arrested him lacked probable
cause to do so. Brown does point to summary judgment evidence challenging the
police officers’ sworn statements that he confessed to involvement in a burglary
prior to his arrest. He does not point to any evidence, though, contradicting the
officers’ sworn statements that Brown’s three accomplices informed police of his
participation in the crime, leading to his arrest. Thus, probable cause existed
for Brown’s arrest because a reasonable person could have concluded, based on
the information known to the officers at the time of Brown’s arrest, that Brown
had committed an offense. See United States v. Castro, 166 F.3d 728, 733 (5th
Cir. 1999) (en banc) (per curiam). Because all of Brown’s claims hinge on the
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No. 11-30111
illegality of his arrest, the district court properly granted summary judgment in
favor of the defendant police officers, sheriff, and defense counsel.
The district court also dismissed Brown’s claim against Ellen Eade, the
prosecuting assistant district attorney, on the basis of absolute prosecutorial
immunity. Brown has failed to identify an error in the district court’s analysis
regarding Eade’s entitlement to absolute prosecutorial immunity and has,
therefore, abandoned the issue. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). To the extent that Brown asserts that
the District Attorney’s office or Sheriff’s office withheld favorable evidence, that
claim is raised for the first time on appeal and is therefore waived. See Jennings
v. Owens, 602 F.3d 652, 657 n.7 (5th Cir. 2010).
Brown’s appeal is without arguable merit and is therefore frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (per curiam). The IFP
motion is denied, and the appeal is dismissed. See Baugh, 117 F.3d at 202; 5th
Cir. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
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