Miriam Danna v. Matt Purgerson

Case: 18-30695 Document: 00514797282 Page: 1 Date Filed: 01/16/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30695 FILED

Summary Calendar January 16, 2019

Lyle W. Cayce

Clerk

MIRIAM L. DANNA,

Plaintiff - Appellant

v.

MATT PURGERSON, individually and in his official capacity; KEITH FOX,

individually and in his official capacity; LEONARD SCOGGINS, individually

and in his official capacity; STEVE PRATOR, in his official capacity only,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:16-CV-71

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Plaintiff Miriam L. Danna appeals the district court’s order granting

summary judgment to the defendants on her 42 U.S.C. § 1983 and various

state-law claims. We AFFIRM.

* 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: 18-30695 Document: 00514797282 Page: 2 Date Filed: 01/16/2019

No. 18-30695

I.

The core facts in this case are undisputed, although the parties quibble

over these facts’ implications. To the extent a fact is in dispute, we recount it

in the light most favorable to Danna.

On January 2, 2015, Danna, her son Nathaniel Danna, 1 and her

grandchildren went out for ice cream at a Dairy Queen in Shreveport,

Louisiana. While she was ordering at the counter, Danna grabbed a wallet that

Gerald Smith, another Dairy Queen patron, had left on the counter while he

went to the bathroom. Danna put the wallet in her purse, thinking it was hers

or her son’s. Several minutes later, Danna realized her mistake and gave the

wallet to Tisha Hood, a Dairy Queen cashier. The next day, someone from

Smith’s church called the Dairy Queen to inquire about the wallet, and then

someone else from the church, Rhonda Williams, went to pick it up.

Two weeks later, on January 16, Smith filed a complaint with defendant

Matt Purgerson, a detective with the Caddo Parish Sheriff’s Office. Smith

alleged that he had $153 in his wallet when he left it on the Dairy Queen

counter that was missing when the wallet was returned to him. Smith

explained he waited two weeks to file the complaint because he did not learn

until he returned to the Dairy Queen on January 16 that the restaurant had

surveillance video, which could help determine who stole his money.

Purgerson, along with defendants Keith Fox and Leonard Scoggins (also

Caddo Parish detectives), reviewed Dairy Queen’s surveillance video from

January 2. The video shows Danna place her purse next to the wallet, look

directly at Smith, place the wallet in her purse, and then exit the camera’s

view. The video also shows Hood speaking on the phone as she received the

1 We refer to Nathaniel Danna by his first name to avoid confusion with Miriam

Danna.

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wallet from Danna. Purgerson interviewed Hood and Veronica Norman, the

restaurant’s manager, who both stated that Hood called Norman to ask what

to do with the wallet and Norman told Hood to put it in the safe.

Purgerson identified Danna as the woman in the video; he and Fox then

interviewed her about the incident. Danna told them she found Smith’s wallet

in her purse but was unsure how it got there. When Purgerson and Fox told

Danna that surveillance video showed her putting the wallet in her purse, she

responded that she did not remember doing so but speculated that she must

have subconsciously grabbed the wallet from the counter and put it into her

purse thinking it was her son’s wallet. Purgerson and Fox placed Danna under

arrest for misdemeanor theft at the conclusion of the interview. A state-court

judge later acquitted Danna following a bench trial.

Danna sued Purgerson, Fox, Scoggins, and Caddo Parish Sheriff Steve

Prator in the federal district court. She alleged false arrest, excessive force,

and malicious prosecution in violation of the Fourth Amendment and

Louisiana state law. The defendants asserted qualified immunity and moved

for summary judgment. The district court granted summary judgment for the

defendants. It held that probable cause existed to arrest Danna for theft, which

defeated her false arrest and malicious prosecution claims. It further held that

her allegations that an officer secured her handcuffs too tightly during her

arrest did not amount to excessive force. Danna filed a post-judgment motion

for reconsideration, which the district court denied. Danna now appeals.

II.

We review orders granting summary judgment de novo, applying the

same standard as the district court. Smith v. Reg’l Transit Auth., 827 F.3d 412,

417 (5th Cir. 2016). Summary judgment is warranted “if the movant shows

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that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A.

We first address Danna’s § 1983 and state-law false-arrest claims, which

both turn on the issue of probable cause. “To remain within the bounds of the

Fourth Amendment, a warrantless arrest must be supported by probable

cause.” Sam v. Richard, 887 F.3d 710, 715 (5th Cir. 2018). “Probable cause

exists when the totality of facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed, or was in the process of committing,

an offense.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc)

(per curiam). Similarly, a false-arrest claim under Louisiana law requires the

plaintiff to show the officer acted without reasonable cause, which “exists when

the facts and circumstances within the arresting officer’s knowledge, and of

which he has reasonable trustworthy information, are sufficient to justify an

average man of caution in the belief that a [crime] has been committed.” Kyle

v. City of New Orleans, 353 So. 2d 969, 971 (La. 1977); see also La. Code Crim.

Proc. Ann. art. 213(A)(3) (authorizing warrantless arrest when “[t]he peace

officer has reasonable cause to believe that the person to be arrested has

committed an offense”). “Probable cause . . . is not a high bar: It requires only

the ‘kind of “fair probability” on which “reasonable and prudent [people,] not

legal technicians, act.”’” Kaley v. United States, 571 U.S. 320, 338 (2014)

(alteration in original) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).

We agree with the district court that the defendants had probable cause

to arrest Danna. The Dairy Queen surveillance video clearly shows Danna

taking Smith’s wallet and putting it in her purse. Danna then spends some

time out of view of the security camera. Smith told police that there was money

in the wallet when he left it on the counter but the wallet was empty when it

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was returned to him. Given Danna’s suspicious behavior on camera, a

reasonable person would infer Danna took the money while out of the camera’s

view. Moreover, it was reasonable for Purgerson and Fox to be suspicious of

Danna’s insistence that she did not know how Smith’s wallet ended up in her

purse, and they were not compelled to accept her subsequent explanation that

she must have picked it up subconsciously. See District of Columbia v. Wesby,

138 S. Ct. 577, 592 (2018) (“[I]nnocent explanations—even uncontradicted

ones—do not have any automatic, probable-cause-vitiating effect.”).

Danna protests that there are other explanations for the missing money:

Hood (the Dairy Queen cashier) or Nathaniel (Danna’s son) could have taken

it; 2 or the money might not have existed in the first place. We agree that these

are possibilities. But as we have often said, “[p]robable cause does not require

certainty.” E.g., United States v. Roberts, 612 F.3d 306, 312 (5th Cir. 2010)

(quoting United States v. Waldrop, 404 F.3d 365, 369 (5th Cir. 2005)); see also

Wesby, 138 S. Ct. at 586. In any event, Danna overstates the strength of the

evidence available to the defendants at the time of her arrest to support her

alternative theories. The undisputed evidence shows that Hood behaved

consistently with someone making a good-faith attempt to return the wallet to

its owner. Upon receiving the wallet, she called Norman to ask what to do with

it. Norman told her to put the wallet in the safe. Hood can be seen on video

following Norman’s directions. All told, her behavior on the video is decidedly

less suspicious than Danna’s. Danna’s main piece of evidence against Hood is

that Hood has a prior conviction for felony theft. Even assuming this

2 Danna also suggests that Williams, Smith’s friend who retrieved his wallet, or

Miranda Slavoff, another Dairy Queen employee, could have taken the money. Both theories

can be rejected out of hand. Hood told Purgerson there was no money in the wallet when she

received it; Hood would only have a motive to lie about this if she took the money. Therefore,

Purgerson could have reasonably concluded that no one who handled the wallet after Hood

took the money.

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information was readily available to the defendants, it could not have

undermined the video evidence, which revealed Danna as the more suspicious

party.

There is also little to suggest that Nathaniel took the money—or at least

that he did so without acting in concert with Danna. He is seen on the video

handling the wallet and appears to take pictures of it at one point, but, unlike

Danna, he remains in the camera’s view while handling the wallet. Of the three

plausible suspects, Danna’s actions raised the most alarms.

Danna also points to evidence that Smith had problems with his

memory, suggesting that Smith was mistaken about whether there was $153

in his wallet when it went missing. But again, Danna points to no evidence

beyond Smith’s advanced age that Purgerson had any reason to suspect

Smith’s memory was unreliable. On the contrary, Purgerson swore in an

affidavit that he “saw nothing to suggest that [Smith] was impaired or suffered

from any mental or physical problem that would prevent him from accurately

communicating with [Purgerson] or from understanding what had occurred.”

Nor did Smith’s delay in reporting the missing money undercut the defendants’

probable-cause determination because Smith gave Purgerson a perfectly

reasonable explanation for the delay: he did not report it sooner because he did

not know Dairy Queen had surveillance footage of the incident. Accordingly,

the defendants acted reasonably in crediting Smith’s allegations that $153

went missing from his wallet.

In sum, based on the evidence available to the defendants at the time of

Danna’s arrest, they had probable cause (and reasonable cause) to believe she

stole $153 from Smith’s wallet. The alternative explanations for the missing

money do not change that result. Therefore, we affirm the district court’s order

granting summary judgment on Danna’s § 1983 and state-law false-arrest

claims.

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B.

We next address Danna’s malicious-prosecution claims. We start first

with her Fourth Amendment malicious-prosecution claim. Then we turn to her

state-law malicious prosecution claim.

We have held “that no [] freestanding constitutional right to be free from

malicious prosecution exists.” Castellano v. Fragozo, 352 F.3d 939, 945 (5th

Cir. 2003) (en banc); see also Albright v. Oliver, 510 U.S. 266, 271 (1994)

(plurality opinion) (holding that there is no “substantive due process right to

be free of prosecution without probable cause”). Accordingly, a constitutional

malicious-prosecution claim must be grounded in some rights deprivation

separate from the prosecution itself—pretrial detention, for example. See

Castellano, 352 F.3d at 953-54, 959. Danna neither alleges nor produces

evidence that she was held in pretrial detention or deprived of some other

federally protected right during the pendency of her prosecution.

Danna relies heavily on our recent opinion in Winfrey v. Rogers, 901 F.3d

483 (5th Cir. 2018). In that case, we remanded for trial a plaintiff’s claims that

the defendant made material false statements in his affidavit in support of the

plaintiff’s arrest warrant. Id. at 498. Danna compared Winfrey to this case

because she alleges that Purgerson omitted certain exculpatory information in

an affidavit supporting her charges. This comparison is inapt; we specified in

Winfrey that the plaintiff’s claim was grounded in his arrest and pretrial

detention—not the prosecution itself. Id. at 491-92. Purgerson filed his

affidavit after Danna’s arrest, and, as explained above, Danna was not held in

pretrial detention. To the extent Danna otherwise seeks to ground her

malicious-prosecution claim in her arrest, it is identical to her false-arrest

claim that we reject above. Accordingly, Danna’s constitutional malicious

prosecution claim fails.

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Danna’s state-law malicious-prosecution claim fares no better. To

succeed on a malicious-prosecution claim under Louisiana law, a plaintiff must

show:

(1) the commencement or continuance of an original criminal or

civil judicial proceeding; (2) its legal causation by the present

defendant in the original proceeding; (3) its bona fide termination

in favor of the present plaintiff; (4) the absence of probable cause

for such proceeding; (5) the presence of malice therein; and (6)

damage conforming to legal standards resulting to plaintiff.

Lemoine v. Wolfe, 168 So. 3d 362, 367 (La. 2015) (quoting Jones v. Soileau, 448

So. 2d 1268, 1271 (La. 1984)). Here again, the presence of probable cause to

charge Danna with theft dooms her claim. 3 Therefore, we affirm the district

court’s ordering granting summary judgment to the defendants on Danna’s

§ 1983 and state-law malicious prosecution claims. 4

Danna asserts that, under Louisiana law, Danna’s acquittal shifts the burden to the

3

defendants to show they acted with probable cause. To support this argument, Danna pulls

an egregiously misleading quote from a Louisiana Court of Appeals case. The quote Danna

included in her opening brief states, “The law is well settled that, where one institutes

against another a criminal prosecution and there is an acquittal, if the person who instigated

the prosecution is to avoid liability for damages he must do so on the ground that he acted

with probable cause and without malice.” Robinson v. Rhodes, 300 So. 2d 249, 251 (La. Ct.

App 2d Cir. 1974)). But this passage continues, in the very next sentence:

The burden however, is ordinarily upon plaintiff to prove both malice and the

absence of probable cause. But the authorities have firmly established the rule

that where a committing magistrate, without a trial, has discharged the

accused, or the prosecuting officer has dismissed the charge, or where a grand

jury has returned a nobill, there is a presumption of want of probable cause

with the result that, in a suit for malicious prosecution based on that discharge,

the burden of showing that he acted on probable cause and without malice is

upon the defendant.

Id. (emphases added). The full quote thus directly contradicts Danna’s assertion that her

acquittal—following a trial—shifts the burden of proof to the defendants. We remind Danna’s

counsel of his duty of candor to this court.

4 Danna advances no argument on appeal that the district court erred in granting

summary judgment to the defendants on her excessive force claims. We thus treat these

claims as waived. See, e.g., Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th

Cir. 2004). Danna likewise does not challenge the district court’s decision that Danna’s claims

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III.

For the reasons stated above, we AFFIRM the judgment of the district

court.

against the defendants in their official capacities must fail because Danna did not produce

any evidence showing the Caddo Parish Sheriff’s Office was culpable for the defendants’

actions—though such claims would fail regardless absent any tort. And we similarly do not

reach the defendants’ qualified-immunity defense; having committed no tort, the defendants

need no immunity.

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