Tom Heaney v. Christopher Roberts

Case: 15-31088 Document: 00513844527 Page: 1 Date Filed: 01/23/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-31088 FILED

January 23, 2017

Lyle W. Cayce

TOM HEANEY,

Clerk

Plaintiff–Appellee,

v.

CHRISTOPHER L. ROBERTS; PARISH OF JEFFERSON,

Defendants–Appellants.

Cons w/16-30189

TOM HEANEY,

Plaintiff–Appellant–Cross-Appellee,

v.

CHRISTOPHER L. ROBERTS,

Defendant–Appellee,

RONALD BLACK,

Defendant–Appellee–Cross-Appellant,

CITY OF GRETNA,

Defendant–Cross Appellant.

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Appeals from the United States District Court

for the Eastern District of Louisiana

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This case involves consolidated appeals by multiple parties. Plaintiff

Tom Heaney was silenced and then ejected at a city council meeting in Gretna,

Louisiana. He alleged that the presiding official at the meeting, Defendant

Christopher Roberts, violated his rights under the First and Fourth

Amendments of the Constitution as well as under the Louisiana state

constitution. Heaney also argued that Defendant Ronald Black, the Gretna

police officer who removed him from the meeting, violated those same

constitutional rights as well as state tort law. Finally, Heaney alleged that the

Parish of Jefferson (“Jefferson Parish”) and the City of Gretna were vicariously

liable as the employers of Roberts and Black. The district court granted in part

and denied in part the Defendants’ motions for summary judgment. Because

there is a genuine issue of material fact as to whether Roberts is entitled to

qualified immunity on the First Amendment claim, we DISMISS his

interlocutory appeal. We also DISMISS Black’s cross-appeal for lack of

appellate jurisdiction. We AFFIRM the district court’s grant of summary

judgment as to the other claims.

I. BACKGROUND

A. Factual Background

On September 18, 2013, Tom Heaney attended a regularly scheduled

Jefferson Parish council meeting in Gretna, Louisiana. In accordance with

council rules, Heaney registered to speak during the time allowed for public

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comment. The rules allowed each registered speaker five minutes to address

the council. Heaney wished to speak about the legality of council members

accepting campaign contributions from contractors who had applied for and

received no-bid contracts from the council. Councilman Christopher Roberts

was presiding as chair of the meeting.

When Heaney had been speaking for about three minutes, he was

interrupted by Roberts, who asked if he would yield the floor to the Parish

Attorney, Ms. Foshee. Heaney believed that he would receive the balance of his

time after Ms. Foshee finished speaking given that a prior speaker had been

given the balance of her time after yielding. Ms. Foshee spoke for several

minutes, expressing her opinion that the council’s actions were legal. After she

finished speaking, Heaney asked Roberts, “May I have my time back?” and

Roberts responded, “Yes, how much time do we have?” Heaney then expressed

his wish to challenge the Parish Attorney’s opinion. At that point, he was

interrupted again by Roberts:

Roberts: Let me, we’ve had this conversation before, ok?

Heaney: Are you trying to stop me from speaking?

Roberts: Well you yielded and I do have the floor . . . so . . . I’m not

going to turn this into a circus, ok? If you don’t believe what Ms.

Foshee’s comments were—

Heaney: I—

Roberts: Let me finish. Last I checked, Ms. Foshee had a law degree

hanging on the wall in her office. If you’re challenging whether or not

what she’s saying to be accurate or not, you can go right to the elevator

downstairs. The Clerk of Court’s office is there, and you’re welcome to

file suit. This is not the forum for you to challenge the opinion of the

parish attorney, ok?

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Heaney: Now if I can be able to speak—

Roberts: No, let me finish. Let me finish. Once again, I’m going to ask

you, are you an attorney?

Heaney: I don’t have to be an attorney to read and comprehend a

decision—

Roberts: But I’m not going to sit here and have you berate the parish

attorney.

Heaney: I have a decision. I have a decision by HUD that contradicts

what Ms. Foshee says—

Roberts: Sir, ok. Your time’s up and I’m going to ask that you be

removed because you’re being hostile so if you would please exit.

Heaney: I’m not being hostile.

Roberts: If you’ve got a problem with that, you can go downstairs . . . .

This is the third time that you’ve tried to take issue with something

....

Heaney: You’re trying to stop me from presenting facts that contradict

Ms. Foshee. You’re taking my time, and you’re violating parish

ordinance.

Roberts: If you’d please remove the gentleman.

Ronald Black, a police officer with the City of Gretna, responded to

Roberts’s request to remove Heaney from the chambers. Black approached the

podium where Heaney was standing and indicated that he needed to move.

Heaney stopped to hand documents to another person as he walked away up

the aisle, intending to sit down for the rest of the meeting. He alleges that

Black “continued to force plaintiff from the Council chambers” and that Black

shoved him forward, causing him to fall to the floor. After getting up, Heaney

alleges that Black “seized [him] by the arms and forcibly ejected him from the

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chambers” into an elevator and down to the first floor. While Heaney awaited

an ambulance that had been called for him, Black consulted with his

supervisor about whether or not Heaney should be arrested.

B. Procedural Background

Heaney filed a complaint on September 12, 2014. He alleged that Roberts

and Black violated his First and Fourth Amendment rights and sought

damages pursuant to 42 U.S.C. §§ 1983 and 1988, as well as punitive damages.

In addition, Heaney asserted that both Roberts and Black violated his right to

free expression under Article I, Section 7 of the Louisiana constitution and that

Black was liable in tort for false arrest, battery, and negligence under

Louisiana law. Heaney also alleged that Jefferson Parish and the City of

Gretna should be vicariously liable as the employers of Roberts and Black,

respectively.

Black and the City of Gretna, as well as Roberts and Jefferson Parish,

filed motions for summary judgment on July 28, 2015. On December 2, 2015,

the district court granted in part and denied in part both motions. Specifically,

the court denied Roberts’s motion for summary judgment on the First

Amendment and state constitutional claims. Because the state constitutional

claim remains pending, Jefferson Parish remains in the lawsuit as Roberts’s

employer on that claim. The court also denied Black’s motion for summary

judgment on the state law battery and negligence claims. These tort claims

remain pending against the City of Gretna on a theory of respondeat superior. 1

The court granted summary judgment on the free speech claims as to Black,

1The opinion will only refer to Roberts and Black, although both Jefferson Parish and

the City of Gretna are parties to the appeals.

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the Fourth Amendment claims as to Black and Roberts, the punitive damages

claim, and the false arrest claim.

Roberts filed a notice of interlocutory appeal on December 21, 2015. On

February 29, 2016, the district court entered a final judgment in accordance

with its order pursuant to Federal Rule of Civil Procedure 54(b), finding no just

reason for delay. Heaney appealed on March 4, 2016. Black appealed the denial

of summary judgment on March 7, 2016. Roberts filed another notice of appeal

on March 14, 2016.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over final decisions pursuant to 28 U.S.C. § 1291.

While not a final decision, “the denial of a motion for summary judgment based

upon qualified immunity is a collateral order capable of immediate review.”

Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). We have

explained that when a “district court denies an official’s motion for summary

judgment predicated upon qualified immunity, the district court can be

thought of as making two distinct determinations, even if only implicitly.” Id.

The court is first deciding that “a certain course of conduct would, as a matter

of law, be objectively unreasonable in light of clearly established law.” Id.

“Second, the court decides that a genuine issue of fact exists regarding whether

the defendant(s) did, in fact, engage in such conduct.” Id. We do not have

jurisdiction to review the second type of determination. Id. Instead, “we review

the complaint and record to determine whether, assuming that all of [the

plaintiff’s] factual assertions are true, those facts are materially sufficient to

establish that defendants acted in an objectively unreasonable manner.”

Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “Within this limited

appellate jurisdiction, ‘[t]his court reviews a district court’s denial of a motion

for summary judgment on the basis of qualified immunity in a § 1983 suit de

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novo.’” Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (quoting Collier v.

Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)).

III. DISCUSSION

“Qualified immunity shields government officials from civil damages

liability unless the official violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct.” Reichle v. Howards,

132 S. Ct. 2088, 2093 (2012). There are generally two steps in a qualified

immunity analysis. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “First, a

court must decide whether the facts that a plaintiff has alleged or shown make

out a violation of a constitutional right. Second . . . the court must decide

whether the right at issue was clearly established at time of [the] defendant’s

alleged misconduct.” Id. (internal quotations omitted). However, we are not

required to address these steps in sequential order. Id. at 242 (“Because the

two-step . . . procedure is often, but not always, advantageous, the judges of

the district courts and the courts of appeal are in the best position to determine

the order of decisionmaking that will best facilitate the fair and efficient

disposition of each case.”).

In Fourth Amendment cases, determining whether an official violated

clearly established law necessarily involves a reasonableness inquiry. Id. at

244–45. In Pearson, the Supreme Court explained that officer is “entitled to

qualified immunity where clearly established law does not show that the

[conduct] violated the Fourth Amendment,” a determination which “turns on

the objective legal reasonableness of the action, assessed in light of the legal

rules that were clearly established at the time it was taken.” Id. (internal

quotations omitted). However, “a reasonably competent public official should

know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818–

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19 (1982). In general, “the doctrine of qualified immunity protects government

officials from . . . liability when they reasonably could have believed that their

conduct was not barred by law, and immunity is not denied unless existing

precedent places the constitutional question beyond debate.” Wyatt v. Fletcher,

718 F.3d 496, 503 (5th Cir. 2013).

A. Free Speech Claims Against Roberts

Roberts argues that he is entitled to qualified immunity on the First

Amendment claim because he was acting in his official capacity as councilman

for Jefferson Parish during the meeting at issue. 2 The constitutional right at

issue is the First Amendment right to be free from viewpoint discrimination in

a limited public forum. See Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346

(5th Cir. 2001) (per curiam) (explaining that limited public forums “describe

forums opened for public expression of particular kinds or by particular

groups”). It is beyond debate that the law prohibits viewpoint discrimination

in a limited public forum. See, e.g., Good News Club v. Milford Cent. Sch., 533

U.S. 98, 106 (2001). The government can restrict or regulate speech in a limited

public forum “as long as the regulation ‘(1) does not discriminate against

speech on the basis of viewpoint and (2) is reasonable in light of the purpose

served by the forum.’” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758

(5th Cir. 2010) (quoting Chiu, 260 F.3d at 346).

2 Louisiana’s constitutional protection of free speech mirrors that of the First

Amendment, so separate determinations of the state and federal claims are unnecessary. See

Winn v. New Orleans City, No. 12-1307, 2015 WL 10713690, at *5 (E.D. La. Jan. 14, 2015).

Furthermore, as the district court determined, the Louisiana Supreme Court would recognize

the same qualified immunity defense for claims under Article I, Section 7 that federal courts

recognize for § 1983 First Amendment claims. Therefore, unless otherwise stated, references

to Heaney’s First Amendment claim refer to both the state and federal claims.

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Here, the district court denied summary judgment because a factual

dispute exists as to whether Roberts’s conduct was viewpoint-based. Viewpoint

discrimination exists “when the specific motivating ideology or the opinion or

perspective of the speaker is the rationale for the restriction.” Rosenberger v.

Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995); see also Pahls v.

Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013) (noting that “a claim of viewpoint

discrimination in contravention of the First Amendment requires a plaintiff to

show that the defendant acted with a viewpoint-discriminatory purpose”). If

Heaney were to have violated a reasonable restriction, such as a topic or time

constraint, there would be no constitutional violation. See Crawford-El v.

Britton, 523 U.S. 574, 593 (1998); Lowery v. Jefferson Cty. Bd. of Educ., 586

F.3d 427, 435 (6th Cir. 2009) (“No violation occurs when the same result would

have occurred in the absence of any illegitimate motive.”). However, Heaney

was speaking on an approved topic and within his allotted time.

Because Heaney was not silenced for violating a reasonable restriction,

the First Amendment claim turns on Roberts’s motive or intent in silencing

and ejecting Heaney from the meeting. The district court declined to grant

summary judgment in favor of Roberts because the “pivotal question”—

whether Roberts acted on an improper motive—is a factual dispute that should

be resolved by a jury. Due to that question of fact, the district court was unable

to determine whether Roberts is entitled to qualified immunity. Assuming that

there was viewpoint discrimination, the court found that Roberts did violate

clearly established law and that the violation was objectively unreasonable. 3

3Roberts argues that the district court was wrong to assume, as a factual matter, that

Roberts acted with improper motive because the “test for the application of qualified

immunity does not involve a look into the subjective intent of the official, but instead looks

at what a reasonable official would know or think.” The Supreme Court addressed the issue

of unconstitutional motive in Crawford-El v. Britton, 523 U.S. 574 (1998). The Court

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Specifically, the district court stated: “It is beyond cavil that a reasonable

government official in Roberts’ position would have known that it would be

impermissible under the First Amendment to prevent Heaney from speaking

and to eject him from the meeting based on the message he was conveying.”

We agree. If Roberts acted with improper motive, he violated Heaney’s

clearly established First Amendment right to be free from viewpoint

discrimination in a limited public forum. Because we do not have jurisdiction

to review the district court’s assessment that a factual dispute exists, we

dismiss Roberts’s appeal. See Chiu, 260 F.3d at 352 (“This question regarding

Defendants’ motivation creates a genuine issue of material fact that cannot be

decided on this appeal.”).

B. Punitive Damages Claim Against Roberts

Although the district court denied summary judgment on the First

Amendment issue, the district court granted Roberts’s motion for summary

judgment as to punitive damages. Punitive damages may be awarded in § 1983

cases “when the defendant’s conduct is shown to be motivated by evil motive

or intent, or when it involves reckless or callous indifference to the federally

protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Reckless

indifference has been described by the Supreme Court as “‘subjective

consciousness’ of a risk of injury or illegality and a ‘criminal indifference to

explained that “although evidence of improper motive is irrelevant on the issue of qualified

immunity, it may be an essential component of the plaintiff’s affirmative case.” Id. at 589.

While Roberts is correct that qualified immunity presents a question of law to be determined

by the court, “when qualified immunity depends on disputed issues of fact, those issues must

be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006).

Indeed, Crawford-El recognized that that there is a “wide array of different federal law claims

for which an official’s motive is a necessary element” and that there should be no heightened

burden on plaintiffs at the summary judgment phase to prove improper motive. Crawford-

El, 523 U.S. at 585.

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civil obligations.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)

(citation omitted). “[U]nlike compensatory damages, punitive damages are

never available as a matter of right, no matter how egregious the defendant’s

conduct may be.” Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990). The decision

to award or deny punitive damages is left to the finder of fact. Id. This Court

is deferential to district court determinations regarding punitive damages. We

will not necessarily reverse the district court on punitive damages, “[e]ven if a

party has made a showing justifying an award of punitive damages.”

Thompkins v. Belt, 828 F.2d 298, 302 (5th Cir. 1987). That is because an “award

of punitive damages is a harsh remedy and normally is not favored by law” and

its goal “is to punish as well as to deter the commission of similar offenses in

the future.” Creamer v. Porter, 754 F.2d 1311, 1319 (5th Cir. 1985).

Here, the district court was “persuaded that while the evidence could

allow a reasonable jury to infer the necessary subjective intent to support a

First Amendment violation, it will not permit a reasonable jury to infer the

level of ‘evil intent’ or recklessness necessary to support a claim of punitive

damages.” Although in many instances a factual dispute as to a constitutional

violation will preclude summary judgment on punitive damages, it will not

when there is no material question of fact as to the reckless nature of the

defendant’s conduct. See Kyle v. Patterson, 196 F.3d 695, 698 (7th Cir. 1999)

(“While evaluations of motive and intent are generally inappropriate on a

motion for summary judgment, we have recognized an exception to this rule

where a plaintiff fails to produce evidence raising a material question of fact

regarding aggravating circumstances or the reckless or callous nature of the

defendant’s actions.” (internal citation omitted)). We agree with the district

court’s assessment of these facts. Because there is no question that Roberts’s

conduct did not rise to the level of reckless indifference or evil intent, we affirm.

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C. First Amendment Claim Against Black

The district court did not err in granting summary judgment in favor of

Black on the First Amendment claim. Heaney argues that Black is not entitled

to qualified immunity on the First Amendment claim because Black is “the

individual who actually effectuated the First Amendment violation by seizing

and removing Heaney.” Black counters that in responding to a direct order to

remove an individual at a council meeting, he was not required “to make his

own independent determination as to whether the individual should be

removed from the meeting, whether or not [he] ha[d] knowledge of all the facts

which ha[d] caused the council chair to make the request.”

Heaney relies on Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th

Cir. 2002), to argue that an officer who “blindly follow[s]” orders is not entitled

to qualified immunity. But Cozzo is distinguishable. In that case, this Court

denied qualified immunity to a sheriff’s deputy who “was only following the

orders” of a superior in evicting the plaintiff based on a temporary restraining

order (“TRO”) that “on its face neither state[d] nor require[d] eviction.” Id. at

284–85. In Cozzo, we found that the deputy “was well aware of the cause of

[the plaintiff’s] concerns and the need for clarification”

before carrying out the order. Id. at 285. This was true particularly because

the plaintiff had pointed out the TRO’s inaccuracies to the deputy when he

came to evict her. Id.

A “right can be said to have been clearly established only if all reasonable

officials in the defendant’s position would have concluded that the challenged

state action was unconstitutional.” Barrow v. Greenville Indep. Sch. Dist., 332

F.3d 844, 846 (5th Cir. 2003). Unlike the deputy in Cozzo, who had ample time

and reasons to conclude that he was carrying out an illegal act, Black had no

reason to believe that he was violating Heaney’s First Amendment rights by

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following Roberts’s order. We agree with the district court that “Black was not

required to cross-examine and second-guess Roberts regarding his First

Amendment motives before acting.” See Collinson v. Gott, 895 F.2d 994, 997

(4th Cir. 1990) (affirming qualified immunity for a sheriff’s deputy who

escorted a citizen out of a city council meeting upon receiving orders to do so

from the presiding officer). Black is entitled to qualified immunity on the First

Amendment claim because his actions as sergeant-at-arms were not objectively

unreasonable in light of clearly established law. We affirm on that claim.

D. Fourth Amendment Claim Against Black

The district court granted summary judgment on Heaney’s Fourth

Amendment claims. 4 “Qualified immunity provides ‘ample protection to all but

the plainly incompetent or those who knowingly violate the law.’” Wooley v.

City of Baton Rouge, 211 F.3d 913, 918–19 (5th Cir. 2000) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). There is a clearly established right to be free

from unreasonable seizures under the Fourth Amendment. See, e.g., Michigan

v. Summers, 452 U.S. 692, 696 (1981). But an officer is only denied qualified

immunity if his or her actions are objectively unreasonable in light of clearly

established law. See, e.g., Blackwell v. Barton, 34 F.3d 298, 303–04 (5th Cir.

1994) (finding that an officer who made an arrest pursuant to a facially valid

warrant acted reasonably and was therefore entitled to qualified immunity

despite violating a clearly established Fourth Amendment right).

We are convinced that the interaction between Black and Heaney was a

seizure under the Fourth Amendment because Heaney was forced to leave the

4 Heaney has waived his Fourth Amendment argument as to Roberts by failing to

argue in his original brief that the district court erred in granting Roberts qualified immunity

on the Fourth Amendment claim. See United States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir.

2005) (citing Fed. R. App. P. 28(a)(8)(A)) (“Any issue not raised in an appellant’s opening brief

is deemed waived.”). We therefore consider only the Fourth Amendment claim against Black.

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meeting. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (explaining

that a “person has been ‘seized’ within the meaning of the Fourth Amendment

only if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave”).

However, we do not need to determine whether there was probable cause. Even

“[i]f there is no probable cause to arrest, the question of whether qualified

immunity nonetheless applies is a separate legal and factual issue.” Mesa v.

Prejean, 543 F.3d 264, 271 (5th Cir. 2008). “Even if we find that the right was

clearly established at the time of the alleged violation . . . , a defendant will

still be entitled to qualified immunity if the defendant’s conduct was

‘objectively reasonable in light of “clearly established” law at the time of the

violation.’” Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 614 (5th Cir. 2004)

(quoting Chiu, 339 F.3d at 279). We assess the reasonableness of an officer’s

actions “in light of ‘the facts available to him at the time of his action.’” Id.

(quoting Chiu, 339 F.3d at 284).

Black’s conduct was objectively reasonable in light of clearly established

law. As previously discussed, Black fulfilled the role of sergeant-at-arms at the

meeting. He was therefore responsible for responding to requests by the council

president to address disruptions. Black also reasonably believed he had legal

authority to keep the peace at meetings and in the building. He testified that

“Court security has authority to make sure that everything is peaceful and

quiet in the whole building . . . not just the Council chambers; so if there is a

problem anywhere in the whole building, we can . . . ask them to leave or take

other necessary action.” It was therefore not objectively unreasonable for Black

to respond to Roberts’s request and escort Heaney out of the room or to briefly

detain Heaney while consulting with his supervisor. Black is entitled to

qualified immunity on the Fourth Amendment claim.

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E. False Arrest Claim Against Black

The district court granted summary judgment on Heaney’s false arrest

claim. 5 Under Louisiana law, “[i]n order for plaintiffs to recover for false arrest,

they must prove that they were unlawfully detained by the police against their

will.” Harrison v. Dep’t of Pub. Safety & Corrs., 721 So. 2d 458, 461 (La. 1998).

There are “two essential elements: (1) detention of the person; and (2) the

unlawfulness of the detention.” Miller v. Desoto Reg’l Health Sys., 128 So. 3d

649, 655–56 (La. Ct. App. 2013) (quoting Kennedy v. Sheriff of E. Baton Rouge,

935 So. 2d 669, 690 (La. 2006)). Courts have also referred to false imprisonment

as the “unlawful and total restraint of the liberty of the person.” Rice v.

ReliaStar Life Ins. Co., 770 F.3d 1122, 1136 (5th Cir. 2014) (quoting Crossett

v. Campbell, 48 So. 141, 143 (1908)).

The district court found that probable cause was not required because

“Heaney was not formally arrested and the only detention that occurred as

part of the removal took place after Black removed Heaney from the council

chambers when Black was conferring with his supervisor to determine whether

Heaney should be placed under arrest.” As an initial matter, Heaney never

alleged in his complaint that he was detained by Black after leaving the

chambers, and he appeared to base his false arrest claim only on the exchange

during the meeting. In his deposition, Heaney admitted that he had not been

arrested and was not questioned by Black. Black stated in his deposition that

he had taken Heaney downstairs because he wanted to discuss with his

supervisor whether Heaney should be arrested. Black explained that this was

because security officers can “arrest somebody for disturbing the peace or ask

5 As Heaney points out in his brief, the district court granted summary judgment on

the false arrest claim in favor of both Black and Roberts, but Heaney never asserted the false

arrest claim against Roberts.

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him to leave. And if he doesn’t leave, then [they can] arrest him.” After

removing him from the meeting, Black escorted Heaney downstairs, Heaney

sat outside the office for a brief period while Black consulted with his

supervisor, and Heaney then walked to an ambulance without being escorted.

This encounter does not amount to a detention requiring probable cause

under Louisiana law. See Harrison, 721 So. 2d at 461–64 (finding that officers

who detained individuals at a casino to interrogate them about possible

cheating were only making an investigatory stop and did not need probable

cause). Black’s detention was brief and reasonable. Heaney was also free to

walk to the ambulance when it arrived. We therefore affirm the district court’s

grant of summary judgment on the false arrest claim.

F. Battery and Negligence Claims Against Black

This Court lacks jurisdiction to review the district court’s denial of

summary judgment as to Heaney’s battery and negligence claims against

Black. The district court denied summary judgment because it “agree[d] with

Heaney’s assertion that the jury must determine whether Black was at fault

for injuring Heaney.” Although the district court entered a final judgment

pursuant to Rule 54(b), that certification does not grant appellate jurisdiction

over a denial of summary judgment. See Howell v. Town of Ball, 827 F.3d 515,

522 (5th Cir. 2016) (“A district court may certify its judgment as final . . . only

with respect to claims that have been conclusively resolved.”), petition for cert.

filed, (U.S. Nov. 4, 2016) (No. 16-631).

IV. CONCLUSION

In conclusion, we DISMISS Roberts’s appeal on the First Amendment

claim because there is a material fact issue as to whether there was viewpoint

discrimination. We AFFIRM the district court’s denial of punitive damages.

We AFFIRM the district court’s grant of summary judgment in favor of Black

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on the First Amendment claim and the Fourth Amendment claim. We AFFIRM

the district court’s grant of summary judgment in favor of Black on the false

arrest claim and DISMISS Black’s cross-appeal on the state tort claims for lack

of jurisdiction.

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