The opinion
Case: 21-60733 Document: 00516836899 Page: 1 Date Filed: 07/27/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 27, 2023
No. 21-60733 Lyle W. Cayce
____________ Clerk
Robin Mayfield; Owen Mayfield; William Mayfield;
Estate of Mark Stevens Mayfield,
Plaintiffs—Appellants,
versus
Butler Snow, L.L.P.; Donald Clark, Jr.; City of
Madison, Mississippi; Mary Hawkins-Butler, individually
and in her Official Capacity; Police Chief Gene Waldrop,
Individually and in his Official Capacity; Chuck Harrison, Individually
and in his Official Capacity; Vickie Currie, Individually and in her
Official Capacity; John and Jane Does 1-10; Richard
Wilbourn, III,
Defendants—Appellees,
Dale Danks, Jr.; Janet Danks; Jordan Russell; Quinton
Dickerson,
Movants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-514
______________________________
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
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Per Curiam: *
Mark Mayfield was arrested for being part of a scheme to take a
picture of Senator Thad Cochran’s late wife, Rose Cochran, in the privacy of
her nursing room home. One month later, Mayfield was found dead in his
home, seemingly from suicide. 1 His widow, sons, and estate filed a complaint
alleging 42 U.S.C. § 1983 claims as well as various tort claims against state
and private actors involved in his arrest and prosecution. The complaint
alleges that Mayfield was subject to a politically motivated prosecution that
deprived him of his constitutional rights, shut down his law practice, and
humiliated him and his family, causing severe emotional distress—all of
which directly led to his suicide.
Defendants filed a motion to dismiss all claims. Excluding one—a
Lozman claim against the City of Madison and Mayor Hawkins-Butler—the
district court dismissed all of Plaintiffs’ claims. 2 After discovery, the district
court granted summary judgment for the City of Madison and Mayor
Hawkins-Butler, finding that Plaintiffs could not prove the required elements
of their Lozman claim. Plaintiffs appeal the dismissal of their claims, the
summary judgment on their Lozman claim, and several orders regarding
expert testimony and discovery. We affirm.
_____________________
*
Judge Ho concurs in the judgment only, in light of Mayfield v. Currie, 976 F.3d
482 (5th Cir. 2020), and Gonzalez v. Trevino, 42 F.4th 487 (5th Cir. 2022). See also
Gonzalez v. Trevino, 60 F.4th 906, 907 (5th Cir. 2023) (Ho, J., dissenting from denial of
rehearing en banc) (disagreeing with Mayfield and Gonzalez).
1
The death was ruled a suicide, but “Plaintiffs find it difficult to concede a suicide”
even though they assume it for the purposes of this appeal.
2
See Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945 (2018).
2
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I.
This is the second time this case has come before us on appeal. See
Mayfield v. Currie, 976 F.3d 482 (5th Cir. 2020). The facts of this case were
well stated by our court’s previous opinion, and we summarize them here.
In 2014, Tea Party candidate Chris McDaniel challenged Senator
Thad Cochran in the tightly contested Mississippi Senate Republican Pri-
mary. McDaniel supporters believed that Senator Cochran was having an
extramarital affair with his assistant, Kay Webber, and sought to make it a
campaign issue. At the time, Senator Cochran’s wife, Rose Cochran, was
suffering from progressive dementia and was bedridden in a Mississippi nurs-
ing home.
John Mary along with other McDaniel supporters hatched a plan to
sneak into Rose Cochran’s nursing home room to take a photo of her. The
goal was to juxtapose a photo of her with the younger Kay Webber, to support
allegations of Senator Cochran’s infidelity.
These individuals reached out to a fellow McDaniel supporter, Mark
Mayfield. Mayfield frequently visited the nursing home because his mother
was also a resident there.
Mayfield refused to take the photo of Rose Cochran himself. But he
explained where her room was to the other McDaniel supporters because he
believed guests routinely visited the residents.
Relying on Mayfield’s directions, Clayton Kelly snuck into the nurs-
ing home and took a photo of Rose Cochran in her room. Kelly incorporated
the photo into a public YouTube video. Kelly removed the video a few hours
later due to negative reactions, including from other McDaniel supporters.
Senator Cochran’s team saw the YouTube video and contacted Butler
Snow, the law firm that served as counsel to Senator Cochran’s campaign
and his family. A lawyer at Butler Snow, Don Clark, brought the video to the
attention of the Mayor of Madison and the Madison Chief of Police.
3
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Officers Chuck Harrison and Vickie Currie were assigned to the case.
They prepared and submitted warrant applications for the search and arrest
of Clayton Kelly for violating a subsection of Mississippi’s Abuse, Neglect,
and Exploitation statute that makes the willful infliction of physical pain or
injury on a vulnerable person a felony. See Miss. Code Ann. § 43-47-
19(3). There’s no evidence Kelly physically injured Rose Cochran, but the
citation to that specific subsection may have been a typographical error—
subsection (2)(b) criminalizes the willful exploitation of a vulnerable person
when the exploitation has monetary value. Kelly gave officers permission to
search his Facebook and YouTube accounts, which implicated other McDan-
iel supporters involved in the scheme. Further investigation revealed Face-
book messages that implicated Mayfield’s participation. Based on these mes-
sages, Harrison and Currie submitted search and arrest warrant affidavits for
Mayfield, each of which cited either Miss. Code Ann. § 43-47-19(3) or
Miss. Code Ann. § 97-29-63, a statute prohibiting the posting of mes-
sages through electronic media for the purpose of causing injury to any per-
son with lewd intent. See Gilmer v. State, 955 So.2d 829, 840 (Miss. 2007)
(holding that lewd intent is a necessary element of an offense under Miss.
Code Ann. § 97-29-63). A magistrate judge issued the warrants on May
22, 2014. Mayfield was arrested at his office the same day.
Mayfield was subject to significant news coverage and lost his largest
client. He was also forced to stop his political activities for the Tea Party and
the McDaniel campaign. On June 24, 2014, Senator Cochran won his runoff
race.
Three days later, Mayfield committed suicide.
A year later, the Madison County Circuit Court entered a judgment
of conviction against Clayton Kelly for conspiring to commit burglary of a
4
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dwelling. Additionally, John Mary entered a guilty plea of conspiracy to vio-
late Miss. Code Ann. § 97-45-17.
After Mayfield’s death, his widow, sons, and estate filed their
complaint against Defendants. Their claims included a § 1983 claim, a Bivens
claim, and various state tort claims against private parties, the local
municipality, and government and law enforcement officials involved in
Mayfield’s arrest. 3 All were dismissed except a Lozman claim against the
City of Madison and Mayor Hawkins-Butler.
II.
A.
This court reviews de novo a district court’s dismissal for failure to
state a claim under Rule 12(b)(6). Ghedi v. Mayorkas, 16 F.4th 456, 463 (5th
Cir. 2021).
Plaintiffs claim that Butler Snow and Don Clark, by initiating a police
report, participated in a retaliatory prosecution against Mayfield for the
exercise of his First Amendment rights. All parties agree that this claim turns
on whether Butler Snow and Clark had probable cause to initiate a police
report. The district court found that probable cause was evident from the
amended complaint. The amended complaint states that a photo of Rose
Cochran was taken without permission, which could suggest trespass or
breaking and entering. The district court did not err in dismissing the claims
against Butler Snow and Don Clark.
_____________________
3
See Bivens v. Six Unknown Named Agents Fed. Narcotics Agents, 403 U.S. 388
(1971).
5
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Plaintiffs additionally brought § 1983 claims against Officer Vickie
Currie and Officer Chuck Harrison. 4 Officer Currie got a warrant for
Mayfield’s arrest, and Officer Harrison got a warrant to search his home and
workplace.
As this court has previously noted, Plaintiffs brought claims under
multiple provisions of the Constitution, including but not limited to the First
and Fourth Amendments. See Mayfield, 976 F.3d at 486 n.1. But this court
concluded that “Plaintiff-Appellees’ claims against Officer Currie . . . fall
under the Fourth Amendment.” Id. As that opinion explained, “in order to
bring a First Amendment claim for retaliatory arrest, a plaintiff generally
must first show the absence of probable cause for the arrest, i.e., a Fourth
Amendment violation.” Id. (citing Nieves v. Bartlett, 139 S. Ct. 1715 (2019)).
So Plaintiffs need to allege that Mayfield was arrested and searched
without probable cause. “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 committing an offense.” Ramirez v. Martinez, 716 F.3d 369, 375 (5th
Cir. 2013) (emphasis and quotation marks omitted). In this case, Plaintiffs
claim they can defeat probable cause and overcome qualified immunity by
showing a harm under either Malley v. Briggs, 475 U.S. 335 (1986), or Franks
v. Delaware, 438 U.S. 154 (1978).
Under Malley, “an officer can be held liable for a search authorized by
a warrant when the affidavit presented to the magistrate was ‘so lacking in
indicia of probable cause as to render official belief in its existence
_____________________
4
The district court dismissed the 42 U.S.C. § 1983 claim against Police Chief Gene
Waldrop because the amended complaint did not specify any claim against him. Plaintiffs
do not contest this dismissal in their appellate briefing.
6
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unreasonable.’” Mayfield, 976 F.3d at 487–88 (quoting Malley, 475 U.S. at
344-45). This court’s previous decision in this case held that there is no
Malley harm here because there were other affidavits that supported the
arrest warrant. 976 F.3d at 487–88. But that decision remanded to the
district court to address the Franks claim.
Under Franks, an officer who “deliberately or recklessly provide[s]
false, material information for use in an affidavit” in support of a warrant or
who “who makes knowing and intentional omissions that result in a warrant
being issued without probable cause” is liable. Melton v. Phillips, 875 F.3d
256, 264 (5th Cir. 2017). On remand, the district court found there was no
Franks harm, a finding we now affirm.
Plaintiffs argue there was a Franks violation because the Officers
withheld evidence that Mayfield didn’t have the requisite intent to trespass
or invade Rose Cochran’s privacy. While its arguable that Mayfield did not
meet the intent element of the specific statute cited, that’s not enough to
overcome qualified immunity. The allegations establishing the conspirators
wanted a “good, clear picture” admit an intent to enter into Rose Cochran’s
room and take her picture. And, as the district court noted, Plaintiffs “have
not produced a single similar case where a court denied qualified immunity
based on a difference of opinion about criminal intent.” Mayfield v. Butler
Snow, LLP, 2021 WL 3642038, at *2 (S.D. Miss. Aug. 17, 2021). The district
court did not err in dismissing the claims under § 1983.
Finally, Plaintiffs brought numerous state tort actions against Officer
Currie and Harrison, which were all dismissed by the district court. On
appeal, Plaintiffs only challenge the district court’s dismissal of their civil
conspiracy claim. The district court was correct in dismissing Plaintiffs’
claim for civil conspiracy because it was not timely. Moreover, civil
conspiracy is a derivative claim that depends on some underlying wrong. See
7
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Wells v. Shelter Gen. Ins. Co., 217 F.Supp.2d 744, 755 (S.D. Miss. 2002)
(applying Mississippi law; collecting cases). To the extent that Plaintiffs do
not appeal the dismissal of the state law tort claims, their civil conspiracy
claim cannot proceed. To the extent that Plaintiff’s civil conspiracy claim
relies on their federal § 1983 claim, their civil conspiracy claim cannot
proceed because the § 1983 claim was correctly dismissed.
The district court did not err in dismissing Plaintiffs’ claims against
the Defendants in this case.
B.
A district court’s ruling on a summary judgment motion is reviewed
de novo. Correa v. Fischer, 982 F.2d 931, 932 (5th Cir. 1993). Summary
judgment is appropriate only when “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).
Plaintiffs’ only claim to survive the motion to dismiss stage was their
Lozman claim against the City of Madison and Mayor Hawkins-Butler. After
discovery, the district court granted summary judgment for the City of
Madison and its Mayor. Plaintiffs’ theory was that the City of Madison
pursued Mayfield in retaliation for his political activities at the direction of
the Mayor.
The Supreme Court held in Lozman v. City of Riviera Beach, Fla., 138
S. Ct. 1945 (2018), that a First Amendment retaliatory arrest claim against a
municipality may survive despite the presence of probable cause under
certain circumstances. In such cases, there’s a difficult evidentiary burden
that Plaintiffs do not meet. In Lozman, there was extensive evidence the city
council used city resources to intimidate the plaintiff because of his speech,
including a meeting transcript enshrining that plan as official municipal
8
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policy and a video of a city council member directing the plaintiff’s arrest. Id.
at 1949–50. Not so here.
Here, Plaintiffs’ best evidence merely establishes that the City of
Madison was aggressively pursuing those who committed a potential
invasion of the privacy of an incapacitated adult. The evidence doesn’t show
that the City carried out the investigation, arrest, search, or prosecution
because of Mayfield’s political views, which the Plaintiffs needed to show to
succeed. The same is true of the Mayor: Although some evidence in the
record suggests she knew the conspirators were McDaniel supporters, other
evidence clarifies that she was not responsible for the prosecutorial decisions
of the District Attorney’s Office. The district court properly granted
summary judgment for the City of Madison and its Mayor.
C.
Plaintiffs also appeal the district court’s ruling regarding an expert
witness as well as various discovery orders issued by a magistrate judge.
Regarding the expert witness, the district court barred Plaintiffs from
bringing Michael Lyman to give expert testimony on the absence of probable
clause. Lyman’s testimony is an inadmissible legal opinion. The district
court did not err in striking Plaintiffs’ expert witness.
Plaintiffs also appeal the magistrate judge’s discovery orders.
Plaintiffs must show that the court abused its discretion in denying a
discovery motion. Atkinson v. Denton Pub. Co., 84 F. 3d 144, 147 (5th Cir.
1996). However, this court need not conduct that analysis. Plaintiffs
challenge discovery orders made by a magistrate judge. At no point did the
district court judge ever consider the discovery issues raised by the Plaintiffs.
“The law is settled that appellate courts are without jurisdiction to hear
appeals directly from federal magistrates.” United States v. Renfro, 620 F.2d
497, 500 (5th Cir. 1980). See Fed. R. Civ. P. 72(a).
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***
We affirm.
10