McCall v. Peters

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT August 18, 2004

Charles R. Fulbruge III

Clerk

No. 03-10550

Summary Calendar

DAVID WAYNE MCCALL,

Plaintiff-Appellant,

versus

SCOTT PETERS, Etc., ET AL.,

Defendants,

SCOTT PETERS, Detective, Coppell Police Department;

MICHAEL D. SCOTT, Sergeant, Coppell Police Department;

CITY OF COPPELL,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CV-2247-D

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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

David Wayne McCall, Texas prisoner number 876980, appeals

from an order of the district court granting summary judgment to

defendants Scott Peters, Michael D. Scott, and the City of

Coppell in his 42 U.S.C. § 1983 action. We review the district

*

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this opinion should not be published and is not precedent except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.

No. 03-10550

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court's grant of summary judgment de novo. Cousin v. Small, 325

F.3d 627, 637 (5th Cir.), cert. denied, 124 S. Ct. 181 (2003).

McCall argues that Peters and Scott lacked probable cause to

arrest him. He asserts that they knowingly presented an arrest

warrant affidavit that contained false and misleading information

and omitted exculpatory facts. He argues that the district court

failed to consider his summary judgment evidence and resolved

disputed issues of fact. We conclude from the totality of the

circumstances in the summary judgment record that Peters and

Scott had probable cause to seek a warrant for McCall's arrest

and that, even setting aside the allegedly false information in

the warrant affidavit, probable cause is evident. See Freeman v.

County of Bexar, 210 F.3d 550, 553-54 (5th Cir. 2000); Sorenson

v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). Therefore, the

district court's dismissal of the false arrest claim on grounds

of qualified immunity is affirmed.

McCall also argues that Peters committed perjury at an

examining trial. However, he has not sufficiently briefed the

issue, and the perjury claim is deemed abandoned. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also FED. R.

APP. P. 28(a)(9)(A). McCall's civil conspiracy claim also fails

because he has not shown an actual violation of his rights or an

agreement by the defendants to commit an illegal act. See Hale

v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); Arsenaux v.

Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982).

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McCall argues that the City of Coppell had a long history

and custom of allowing its officers to make illegal arrests.

Because McCall failed to show that his arrest was illegal, he

cannot show that an official policy or custom caused the

violation of his constitutional rights. See Monell v. Department

of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978);

Piotrowski v. City of Houston, 237 F.3d 567, 578-79 (5th Cir.

2001). McCall's state law claims are deemed abandoned for

failure to brief them. See Cinel v. Connick, 15 F.3d 1338, 1345

(5th Cir. 1994).

McCall argues that he was not given an opportunity for

discovery because he was misled by the wording of the district

court's protective order. We have already rejected a similar

claim by McCall in an earlier appeal where we held that the

protective order was clearly written and would not be confusing

or misleading to a lay person. See McCall v. Peters, No. 02-

11189 (5th Cir. Aug. 29, 2003)(unpublished).

AFFIRMED.