Joseph Barber, Jr. v. Cedric Glover

Case: 15-30009 Document: 00513164789 Page: 1 Date Filed: 08/21/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30009 United States Court of Appeals

Summary Calendar Fifth Circuit

FILED

August 21, 2015

JOSEPH BARBER, JR.; BRENDA BARBER, Lyle W. Cayce

Clerk

Plaintiffs - Appellees

v.

FRANCIS MOGAVERO, individually,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:12-CV-2232

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM*:

Plaintiffs Joseph Barber, Jr. (“Barber”) and his wife Brenda Barber filed

suit pursuant to 42 U.S.C. § 1983 and Louisiana state law against Officer

Francis Mogavero of the Shreveport Police Department in his individual

capacity, alleging that Mogavero falsely arrested Barber and subjected him to

excessive force. The case arises from a verbal dispute between Barber and a

concession stand worker at a college football game. Mogavero responded to the

* 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. 15-30009

scene, physically struck Barber at least twice, causing broken facial bones, and

arrested Barber for public drunkenness and simple assault.

In the district court, Mogavero filed a motion for summary judgment,

asserting that he was entitled to qualified immunity on the individual capacity

claims asserted against him. The district court denied the motion on the

ground that there were genuine disputes of material fact surrounding Barber’s

arrest and that Mogavero had not demonstrated as a matter of law that he was

entitled to qualified immunity on the Plaintiffs’ § 1983 claims. Mogavero

timely filed this interlocutory appeal.

The denial of a motion for summary judgment based on qualified

immunity, to the extent that it turns on questions of law, is a collateral order

capable of immediate review. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.

2007). Where, as here, the district court denies summary judgment on the

ground that genuine disputes of material fact exist, we lack jurisdiction to

review whether a genuine fact issue exists. Id. We may only review the

materiality of the dispute—that is, “the legal sufficiency of the facts that the

district court found to be supported by the summary judgment record.” Id. “In

so doing, [we] assume[] that the plaintiff’s factual assertions are true and

determine[] whether those facts are sufficient to defeat the defendant’s motion

for summary judgment.” Id. 1 Mogavero is entitled to qualified immunity

1 Mogavero states that, in addition to having jurisdiction to review the district court’s

denial of qualified immunity on the Plaintiffs’ § 1983 claims, we have jurisdiction to review

whether the Plaintiffs’ Louisiana state-law claims should have been dismissed. He argues in

passing that he is entitled to qualified immunity on the state-law claims because those claims

rely on the same standards of law as the § 1983 claims. We do not address whether the

district court should have dismissed the Plaintiffs’ state-law claims. Mogavero failed to

address these claims in his motion for summary judgment before the district court

(consequently, the district court did not address this issue). See Sw. Bell Tel., L.P. v. City of

Hous., 529 F.3d 257, 263 (5th Cir. 2008) (“This Court will not consider an issue that a party

fails to raise in the district court absent extraordinary circumstances.” (citation and internal

quotation marks omitted)). Moreover, Mogavero’s scarce briefing on the state-law claims in

the district court and on appeal fails to demonstrate that we have jurisdiction to consider

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No. 15-30009

unless he violated Barber’s constitutional rights and his actions were

objectively unreasonable in light of clearly established law. See Harris v.

Serpas, 745 F.3d 767, 772 (5th Cir.), cert. denied, 135 S. Ct. 137 (2014).

Mogavero does not dispute that under clearly established constitutional law

Barber had the right to be free from arrest without a warrant or probable cause

and the right to be free from excessive use of force.

There are sufficient facts to support that Mogavero lacked probable

cause to arrest Barber for public drunkenness and simple assault and that he

acted objectively unreasonably in concluding that he had probable cause. See

Crostley v. Lamar Cnty., 717 F.3d 410, 422–23 (5th Cir. 2013) (explaining that,

in the context of a false arrest claim, an officer is entitled to qualified immunity

unless there was not probable cause for the arrest and a reasonable officer

would not conclude there was probable cause for the arrest). As to probable

cause to arrest Barber for public drunkenness, the following facts are material:

there was evidence that five hours or more passed between Barber’s last

consumption of alcohol and the incident; the concession employee that

requested assistance from Mogavero testified that Barber did not appear

visibly intoxicated; and, although Mogavero testified that he observed Barber

moving and responding as if intoxicated, he did not smell alcohol on his breath

or question or examine Barber further regarding alcohol consumption or

intoxication before arresting him. See SHREVEPORT, LA., CODE OF ORDINANCES

§ 50-152 (prohibiting public drunkenness). As to probable cause to arrest

Barber for simple assault, it is material that there was testimony by multiple

witnesses that Barber did not use physical force, attempt to use physical force,

them on interlocutory appeal. See, e.g., Burge v. Parish of St. Tammany, 187 F.3d 452, 482–

83 (5th Cir. 1999) (addressing appellate jurisdiction over state-law claims in an interlocutory

appeal of the denial of qualified immunity on § 1983 claims).

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or act threatening toward anyone, including toward Mogavero. See LA. STAT.

ANN. §§ 14:36, 14:38 (defining assault and simple assault).

There are likewise sufficient facts to support that Mogavero caused

(substantial) injury to Barber through use of excessive force that was clearly

unreasonable. See Harris, 745 F.3d at 772 (“To prevail on an excessive force

claim, a plaintiff must establish: (1) injury (2) which resulted directly and only

from a use of force that was clearly excessive, and (3) the excessiveness of

which was clearly unreasonable.” (citation and internal quotation marks

omitted)). There is testimony by multiple witnesses that Mogavero struck

Barber in the chest and then punched him in the face one or more times

without any precipitating aggressive or threatening actions by Barber and

before Mogavero told Barber that he was under arrest. The level of force used

by Mogavero knocked Barber unconscious, broke bones in his face, and caused

nerve damage.

Accordingly, assuming the truth of Plaintiffs’ evidence, as we must at

this stage, this evidence is sufficient to preclude summary judgment based on

Mogavero’s claim of qualified immunity.

AFFIRMED.

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