Jimmie DeRamus v. City of Alexandria

Case: 16-30627 Document: 00513826493 Page: 1 Date Filed: 01/09/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fif h Circuit

FILED

No. 16-30627 January 9, 2017

Summary Calendar

Lyle W. Cayce

Clerk

JIMMIE DERAMUS, doing business as Silver Dollar Pawn & Jewelry;

TAMMIE DERAMUS-CREDEUR; JOHNNIE DERAMUS; PEGGY

DERAMUS, doing business as Silver Dollar Pawn & Jewelry,

Plaintiffs - Appellants

v.

CITY OF ALEXANDRIA; POLICE DEPARTMENT OF ALEXANDRIA;

CHRIS BESSON; RICKY VERCHER; PATRICK HARRISON; SHANNON

BLACKWOOD; LYNN HALL; W. NEAL BATES; K. JOHNSON; CHRIS

RYDER; DOUG ALFRED; LOREN LAMPERT; JIMMY HAY; LEE LEACH;

ANDY VAN DYKE; JAMES C. DOWNS; UNKNOWN OFFICERS,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:14-CV-3222

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit

Judges.

PER CURIAM:*

* 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.

Case: 16-30627 Document: 00513826493 Page: 2 Date Filed: 01/09/2017

No. 16-30627

This appeal arises from the search and seizure of stolen goods from a pawn

shop in Alexandria, Louisiana. Plaintiffs-Appellants brought section 1983

claims against Defendants-Appellees. The district court granted summary

judgment against Plaintiffs-Appellants. Because Plaintiffs-Appellants’ appeal

from the grant of summary judgment was not timely filed, those claims were

dismissed by an earlier order of this court. Defendants-Appellees also moved

for and were awarded attorney’s fees under section 1988. The district court’s

grant of Defendants-Appellees’ attorney’s fees is the sole issue before us. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

Silver Dollar Pawn and Jewelry (“Silver Dollar”) is a sole proprietorship

in which Jimmie and Peggy DeRamus have an ownership interest. They, along

with their daughter, Tammie DeRamus-Credeur, and Jimmie’s brother,

Johnnie DeRamus (collectively, “the DeRamuses”), were the stars of the short-

lived reality TV program “Cajun Pawn Stars.” The DeRamuses brought

numerous section 1983 claims against the City of Alexandria (“the City”), the

Alexandria Police Department (“APD”), members of the police force, and

members of the Rapides Parish District Attorney’s Office (collectively,

“Defendants-Appellees”), which all relate to the recovery of stolen power

equipment from Silver Dollar.

On June 11–12, 2014, Silver Dollar purchased several items from

Brandon Allison, including a sewer snake. These transactions were

secondhand sales, not pawns. On June 23, 2014, Kendal Bakies informed the

APD that several pieces of equipment had been stolen from his home. Bakies

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had conducted his own investigation 1 and stated that he had seen his sewer

snake at Silver Dollar. He provided Officer Chris Besson with the sewer

snake’s box, which had the serial number on it. Officer Besson and an officer-

in-training went to Silver Dollar to investigate. Officer Besson questioned the

employee on duty about the sewer snake, and he asked if he could inspect it.

The employee agreed and took officer Besson to the sewer snake. When

Jimmie DeRamus—who describes himself as an expert on Louisiana pawn

law—discovered that police officers were at the business, he became irate, told

the officers that only a detective could inspect a pawn shop, and demanded that

they leave.

The next day, Detective Shannon Blackwood was assigned to the case

and told by her supervisor, Sargent Ricky Vercher, to obtain a warrant for

Bakies’s stolen items. After receiving the warrant, APD officers went to Silver

Dollar. Jimmie DeRamus refused to let officers conduct a consensual search,

so the officers executed the warrant. The DeRamuses did not cooperate with

the officers. Jimmie DeRamus told the officers that they could not take the

sewer snake, and initially refused to assist the officers in finding the

paperwork relating to the stolen equipment. Because of the DeRamuses’

refusal to cooperate, officers were told to shut down and secure Silver Dollar’s

back room to complete their search for the stolen items. Johnnie DeRamus,

who repeatedly refused the officers’ demand to leave the secure area, was

arrested for interfering with a law enforcement investigation, but he was

released after receiving a citation. The APD’s search located the sewer snake,

along with a weedeater, chainsaw, and pole saw belonging to Bakies. Detective

1Bakies went to Silver Dollar and asked about purchasing a sewer snake, without

revealing that he was searching for his stolen one. After inspecting the sewer snake and

confirming it was his, he left Silver Dollar and contacted the APD to report the stolen sewer

snake.

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Blackwood stated that she forgot to give Silver Dollar restitution forms due to

the chaos that ensued during the search but that she returned to provide the

forms a few days later.

After the seizure, Bakies inquired about the return of the stolen items,

stating that he needed them for his job. Detective Blackwood contacted the

District Attorney’s Office for a legal opinion on whether the APD could release

the stolen goods. The District Attorney’s Office instructed Officer Blackwood

that she could return the stolen items to Bakies, provided he had the receipt

and serial numbers. Bakies also agreed not to dispose of the items until the

investigation was complete. Bakies’ ownership of the property was never

disputed. Brandon Allison pled guilty to possession of stolen goods, and he was

ordered to pay restitution to Silver Dollar.

On October 6, 2014, the DeRamuses filed this section 1983 action against

Defendants-Appellees. They alleged numerous violations of various statutory

and constitutional rights stemming from the search and seizure of Bakies’

stolen equipment.

After discovery was completed, the district court granted multiple

motions for summary judgment in favor of Defendants-Appellees, which

resulted in the dismissal of all the Plaintiffs-Apellants’ claims. Because the

DeRamuses did not timely appeal from those judgments, this court dismissed

the appeal from the grants of summary judgment. The district court also

granted three motions for attorney’s fees: (1) one on behalf of the City of

Alexandria, Loren Lampert, Jimmy Hay, Lee Leach, Doug Alfred, Ricky

Vercher, Patrick Harrison, Lynn Hall, W. Neal Bates, Klien Johnson, Chris

Besson, and Chris Ryder; (2) one on behalf of Shannon Blackwood, and (3) one

on behalf of James C. Dows/Phillip Terrell, District Attorney for Rapides

Parish, and Andy Van Dyke, Assistant District Attorney. The district court’s

grant of attorney’s fees is the only issue before us.

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II. ANALYSIS

We review the district court’s imposition of attorney’s fees for abuse of

discretion. Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). “A

district court abuses its discretion if it: (1) relies on clearly erroneous factual

findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to

the facts.” Combs v. City of Huntington, 829 F.3d 388, 391 (5th Cir. 2016)

(quoting Allen v. C & H Distribs., LLC, 813 F.3d 566, 572 (5th Cir. 2015)).

Section 1988 provides that “the court, in its discretion, may allow the

prevailing party [in a section 1983 action] . . . a reasonable attorney’s fee.” 42

U.S.C. § 1988. Although attorney’s fees for prevailing plaintiffs are almost

always awarded, attorney’s fees for defendants are only awarded “upon a

finding that that the plaintiff’s action was frivolous, unreasonable, or without

foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). When determining whether

to award attorney’s fees to defendants, we consider as factors (1) whether the

plaintiffs established a prima facie case; (2) whether the defendants offered to

settle; and (3) whether the court held a trial on the merits. Myers, 211 F.3d at

292. Still, we must look at the underlying suit to determine whether the

“action was vexatious, frivolous, or without foundation . . . because the mere

dismissal of the plaintiffs[’] suit will not establish that the underlying claim

was frivolous, unreasonable, or groundless.” Dean v. Riser, 240 F.3d 505, 512

(5th Cir. 2001). A finding that the plaintiff “brought or continued such a claim

in bad faith” provides “an even stronger basis for charging him with the

attorney’s fees incurred by the defense.” Christiansburg, 434 U.S. at 422.

A review of the record reveals that the DeRamuses’ claims against all

Defendant-Appellees were frivolous, unreasonable, or groundless, and

therefore the district court did not abuse its discretion in awarding attorney’s

fees.

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1. City’s Motion

a. Claims of Inadequate Training and Supervision

Jimmie and Peggie DeRamus alleged section 1983 violations based on

City policy and inadequate training or supervision by Police Chief Lampert

and Deputy Chief Hay. With respect to these claims, the district court noted

that the DeRamuses failed to provide “testimony or evidence” to establish any

element of these claims. 2 It found that nothing done by the City, Lampert, or

Hay “would have reasonably been believed to violate a constitutional right”

under federal or state law. Additionally, the DeRamuses were put on notice

that these claims lacked any merit when the Defendants-Appellees specifically

requested by letter that these claims be withdrawn due to a lack of evidence.

Indeed, the DeRamuses did not even reply to the motion for summary

judgment on these issues. Without any testimony or evidence presented by the

DeRamuses, “there is no basis from which to say these claims were not

frivolous.” Myers, 211 F.3d at 293.

b. Claims Relating to the June 23rd Search

Jimmie and Peggie DeRamus claimed that Officer Besson conducted an

illegal search and seizure of Silver Dollar on June 23, 2015. Although a

“warrant must generally be secured” before a search, this “requirement is

subject to certain reasonable exceptions.” Kentucky v. King, 563 U.S. 452, 459

(2011). We agree with the district court that the DeRamuses’ claims of an

illegal search and seizure against Officer Besson were frivolous. Despite citing

a number of state laws governing the warrantless inspection of pawn shops

2 See Board of Cty Com’rs of Bryan Cty v. Brown, 520 U.S. 397, 403–04 (1997) (a City’s

liability under section 1983 requires (1) a policy, practice, or custom that was improper; (2)

deliberate indifference; and (3) a causal link to the alleged injuries); Roberts v. City of

Shreveport, 397, F.3d 287, 291–92 (5th Cir. 2005) (failure to train requires (1) a failure to

train; (2) deliberate indifference, which requires a pattern of violations; and (3) a causal

connection to the alleged violation).

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and their records that Officer Besson is alleged to have violated, the

DeRamuses never rebutted the fact that the employee on duty consented to

Officer Besson’s request to inspect the sewer snake. Further, no property was

seized on June 23rd. Moreover, the district court noted that the laws governing

secondhand dealers do in fact permit a warrantless search of this heavily

regulated industry. See La. R.S. Ann. 37:1785 (stating that a pawnbroker

acting as a secondhand dealer shall be subject to the requirements of

secondhand dealers, other than licensing or bonding requirements). Louisiana

Revised Statutes 37:1867 provides that “[d]uring thirty calendar days after

purchase . . . . In all instances, a secondhand dealer shall make the item

immediately available upon request by a state law enforcement agency.” La.

R.S. Ann. 37:1867. Therefore, the DeRamuses did not even make out a prima

facie case against Officer Besson, and the district court did not abuse its

discretion when it determined that these claims were frivolous.

c. Claims Relating to the Execution of the Search Warrant

Next, Jimmy and Peggie DeRamus made several federal and state

constitutional claims against members of the APD who aided in the execution

of the search and seizure warrant. These claims concerned Sergeants Bates

and Vercher, and Detectives Alford, Hall, Harrison, and Ryder. The

DeRamuses claimed these officers were responsible for (1) an illegal search and

seizure under the Fourth Amendment, (2) a violation of Due Process under the

Fourteenth Amendment, and (3) analogous violations under the Louisiana

constitution. Once again, the district court found that the DeRamuses failed

to make even a prima facie showing that their rights were violated because the

officers acted pursuant to a valid search and seizure warrant.

The DeRamuses rely on Louisiana Revised Statutes 37:1805, which

details the procedures for the warrantless seizure of an allegedly stolen item

from a pawnbroker. The district court found that this statute did not apply to

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secondhand sales because it refers specifically to “pawnbrokers” and “the

pledgor,” not to sales. 3 La. R.S. Ann. 37:1805. Even assuming that this statute

applies to secondhand sales, a statute meant to provide for the warrantless

seizure of property cannot nullify a valid warrant based on probable cause. Cf.

New York v. Burger, 482 U.S. 691, 702–03 (1987) (stating that a warrant

“fulfill[s] the traditional Fourth Amendment standard of reasonableness” and

that any warrantless inspection “must perform the two basic functions of a

warrant”)(internal citation omitted). As the district court noted, the “search

warrant was obtained because of Jimmie DeRamus’s uncooperative

demeanor.” Had the DeRamuses complied with Officer Besson’s request to

perform a warrantless inspection pursuant to Revised Statutes 37:1867, a

search and seizure warrant would not have been necessary. Because officers

executed a valid warrant that only issued because the DeRamuses did not

comply with their statutory duty, the district court did not abuse its discretion

finding that these claims were frivolous.

d. Tammie DeRamus-Credeur’s Claims

We additionally hold that Tammie DeRamus-Credeur’s claims were

frivolous. Tammie DeRamus-Cedeur brought claims for (1) Due Process

violations under the state and federal constitutions (2) a civil rights violation

against the City for the behavior of its officers, (3) supervisor liability, and (4)

punitive damages. As the district court noted, Tammie DeRamus-Credeur has

no ownership interest in Silver Dollar pawn. Thus, she had no liberty or

3 No other state or federal court has examined whether Revised Statutes 37:1805

applies to secondhand sales made by pawnbrokers, and the merits of this determination are

not on appeal before us. The case the DeRamuses rely upon to demonstrate that Revised

Statutes 37:1805 provides them a due process right does not speak to that point. Top Dollar

Pawn, Gun, & Car Audio No. 5, LLC v. Shaw, 626 Fed. App’x 475 (5th Cir. 2015). In Top

Dollar Pawn, this court did not reach the merits of the underlying claims because we found

that the statute of limitations had run. Id. at 477. Moreover, that case dealt with the seizure

of pawned items, not items sold secondhand. Id.

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property interest in the store, and so she could not have suffered a Due Process

violation under the federal or state constitutions. With regard to her other

claims, she “failed to produce evidence to establish any element of her

claim[s].” For the same reasons these claims were frivolous when filed by

Jimmie and Peggie DeRamus, they are frivolous when filed by Tammie

DeRamus-Credeur. In fact, she did not even file a response to the Motion for

Summary Judgment against her. Therefore, the district court did not abuse

its discretion in determining that her claims against the City and the APD

were frivolous.

e. Johnnie DeRamus’s Claims

Johnnie DeRamus, like Tammie DeRamus-Credeur, had no property

interest in Silver Dollar. To the extent Johnnie DeRamus’s claims mirror those

of the other family members, we hold that they are frivolous for the same

reasons. 4 We also hold that Johnnie DeRamus’s claim of an illegal arrest are

frivolous. The record reflects that it was Johnnie DeRamus’s refusal to comply

with multiple requests from Officer Harrison to clear the search area that

resulted in his arrest for interfering with a law enforcement investigation and

resisting an officer. See La. R.S. Ann. 14:329 (interfering with a law

enforcement investigation), 14:108 (resisting an officer). Despite bringing

claims against twelve members of the APD, Officer Harrison was the only one

involved in his arrest. Johnnie DeRamus has also failed to provide any support

for his claim that Officer Harrison arrested him to intimidate his brother. And

Johnnie DeRamus failed to produce any evidence that Officer Harrison was

negligent when he handcuffed him and placed him in the police car.

4 Defendants-Appellees in a letter requested that Johnnie DeRamus drop all claims

not relating to his arrest prior to filing a motion for summary judgment against him, but it

was only in his response to the motion that he stated he was contesting only the claims

relating to his arrest.

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For these reasons, we conclude that the court did not abuse its discretion

in determining that Johnnie DeRamus’s claims were frivolous, and we uphold

the court’s grant of attorney’s fees to the City.

2. Detective Blackwood’s Motion

In addition to the claims made against other members of the APD, the

DeRamuses asserted that Detective Blackwood (1) knowingly made false

statements when procuring the warrant and (2) violated their statutory and

constitutional rights when she returned the power equipment to Bakies. The

DeRamuses did not specify to the court below what information was false, and

the affidavit and warrant provided to the judge do not contain any false

statements. This claim was frivolous.

Although the DeRamuses had property rights in the power equipment

seized at the store, we do not agree that they have asserted any violation of

those rights. Once again, the DeRamuses cite Louisiana Revised Statutes

37:1805 as the basis for the violation of their rights. As we already noted, APD

seized these items pursuant to a valid warrant. The district court determined

that Revised Statutes 37:1805 does not apply to secondhand sales, and that

decision is not before us. But assuming that the statute applies, Revised

Statutes 37:1805(C)(1) provides that “[w]hen ownership of a thing is disputed,

final determination as to ownership for the purposes of this Part shall be made

in either a civil or criminal proceeding filed in a Louisiana court of competent

jurisdiction.” (emphasis added). When dismissing the DeRamuses’ claims

against Detective Blackwood on summary judgment, the district court noted

“[s]ignificantly, . . . plaintiffs have not disputed that Bakies is the rightful

owner.” Bakies also agreed not to dispose of the property until the criminal

proceeding concluded. Moreover, Detective Blackwood consulted the District

Attorney’s Office when releasing the property, which the district court

determined entitled her to qualified immunity. Based on these findings, the

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district court concluded that no prima facie case existed against Detective

Blackwood, and the factors considered by this court counselled in favor of

awarding attorney’s fees. See Myers, 211 F.3d at 292.

We cannot say that the district court abused its discretion when it found

that the claims against Detective Blackwood were frivolous.

3. Office of the District Attorney’s Motion

The DeRamuses’ section 1983 claims against the Rapides Parish District

Attorney, James Downs/Phillip Terrell, were clearly frivolous. The District

Attorney’s Office warned the DeRamuses in a letter dated March 12, 2015 that

there was no evidence the District Attorney had any involvement in the case

and that a theory of respondeat superior is not allowed in section 1983 cases.

Still, the DeRamuses continued to press these claims until January 4, 2016,

after the District Attorney’s Office filed for summary judgment on December

14, 2015.

The district court also found the claims brought against Assistant

District Attorney Van Dyke frivolous. The district court dismissed all claims

against Van Dyke on the basis of qualified immunity after finding that the

advice he provide to the APD was not “a constitutional violation of plaintiffs’

rights.” The DeRamuses again rely on Louisiana Revised Statutes 37:1805 to

make their argument that their claims were not frivolous. Again, even

assuming that Revised Statutes 37:1805 applies to secondhand sales, the

DeRamuses failed to assert a violation of their rights under the statute.

Detective Blackwood only asked Van Dyke whether seized property could be

returned to its rightful owner. The letter sent by Van Dyke—who was unaware

of any ownership dispute—stated that “[a]s our office does not have a case file

yet, our office makes no comment or judgment concerning the seizure of

evidence from wherever it was seized from [sic]. Our office is relying on the

[p]olice investigation to establish the rightful owner of the property.” Van

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Dyke did not recommend an unconditional transfer of ownership of the

property back to Bakies, and Bakies was instructed not to dispose of the

property until cleared to do so.

We therefore hold that the district court did not abuse its discretion

when it determined that the claims against the Rapides Parish District

Attorney’s Office were frivolous.

4. Calculation of Attorney’s Fees

The DeRamuses admit that they “d[o] not challenge the amount of

attorney’s fees claimed, the amount awarded, or the apportionment made

between [themselves] in the award.” Having not raised these issues, the

DeRamuses have waived them. 5 See Adams v. Unione Mediterranea Di

Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised or inadequately

briefed on appeal are waived.”). Thus we uphold the district court’s calculation

of attorney’s fees.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the award of attorney’s fee to the

Defendants-Appellees.

5We do note that the district court applied this court’s two-step process when

awarding attorney’s fees by (1) calculating the lodestar and (2) determining whether any of

the Johnson factors warrant an upward or downward departure from the lodestar. See

Combs v. City of Huntington, 829 F.3d 388, 391–92 (5th Cir. 2016).

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