IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30930
Summary Calendar
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CHERIE FOUQUET, wife of Robert A. Fouquet, Sr., ROBERT A.
FOUQUET, SR., individually, for and on behalf of their
minor children, Stacie Fouquet, Bobby Fouquet, Daniel
Fouquet, Jenny Fouquet, Ashley Fouquet, Rebecca Fouquet,
Christen Fouquet, Elizabeth Fouquet and Kelly Fouquet and
LIBERTY TOMENY, individually and on behalf of her minor
son Jeffrey,
Plaintiffs-Appellants,
versus
PATRICK J. CANULETTE, Sheriff, of St. Tammany Parish,
CATHY PORTER, LARRY CIKO and JAMES RICHARD,
Defendants-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Eastern District of Louisiana
(95-CV-615)
_______________________________________________________
July 3, 1997
Before REAVLEY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Cherie Fouquet, on behalf of herself and her minor children,
appeals the district court’s order granting summary judgment to
appellees on her 42 U.S.C. § 1983 claim. Mrs. Fouquet brought this
*
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this opinion should not be published and is not precedent except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.
action against the St. Tammany Parish Sheriff’s Department and
individual employees alleging that she and her husband were
unlawfully arrested. The district court found that appellees were
entitled to qualified immunity and granted summary judgment on the
§ 1983 claim, and dismissed Mrs. Fouquet’s pendent state law claims
without prejudice. Finding no error, we affirm.
The Fouquets founded and operated the Agape Christian
Ministries, and provided a home for abused or neglected children.
Richard Fouquet, Cherie’s now deceased husband, was arrested for
indecent behavior with juveniles, molestation of a juvenile, and
cruelty to juveniles in violation of Louisiana law. Cherie was
arrested for being an accessory after the fact to the felony crimes
of her husband. The Fouquets were arrested pursuant to a valid
arrest warrant, but the district attorney declined to charge and
prosecute the Fouquets. The Fouquets filed the present action
claiming that probable cause did not exist to support the arrest
warrant, and that the Sheriff’s Department and its deputies
violated the Fouquets’ constitutional right to be free from
unlawful arrest.
The following facts are undisputed. Jane Doe I reported that
Robert Fouquet had committed sexual acts of kissing, fondling, oral
sex, and digital penetration while she was living in the Fouquet
home. Jane Doe I also reported that Robert Fouquet subjected
children in the Fouquet home to pain and suffering by beating the
children. In May and June 1994, the Sheriff’s Department conducted
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an investigation into Jane Doe I’s allegations, which included
interviews with all of the children and the Fouquets. Mark
Fouquet, the Fouquets’ twenty-year-old adopted son, initiated a
second interview with deputies, during which he stated that he
believed more girls were molested in the home and that the children
were ordered by his parents to lie to the police regarding corporal
punishment. Mark also stated that he personally witnessed Robert
Fouquet ascend the stairs at night to the area where the girls
slept. The initial investigation resulted in no arrests being made
and was closed.
In October of 1994, Jane Doe II reported that Robert Fouquet
had whipped her with a belt, slapped her in the face, and punched
her in the face, and that she had witnessed other children in the
home being similarly treated. Jane Doe II further reported that
Robert Fouquet had entered the room where she, Jane Doe I and other
girls slept at night, and had kissed her on her mouth and, on at
least one occasion, had inserted his tongue in her mouth. Jane Doe
II reported that Robert Fouquet had fondled her breasts, and that
she was present in the room when Robert Fouquet went to Jane Doe I
to kiss and touch her. She also stated that during the previous
investigation, Cherie Fouquet had instructed the children to
withhold information from the police regarding spankings and
beatings. Based on this information, Detective Richard executed
warrant affidavits and obtained arrest warrants.
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Mrs. Fouquet does not contend that any of this information is
false, nor does she claim that Detective Richard presented false
statements in his warrant affidavit. Rather, Mrs. Fouquet contends
that this evidence does not constitute probable cause, and that
Detective Richard’s failure to include other information in the
affidavit constitutes reckless disregard for the truth. She argues
that the district court erred by granting summary judgment on her
§ 1983 claim based on qualified immunity because there exists
genuine issues of material fact as to the objective reasonableness
of the deputies’ actions.
We review the grant of summary judgment de novo, applying the
same standard used by the district court and viewing all evidence
in the light most favorable to the non-moving party. Woods v.
Edwards, 51 F.3d 577, 580 (5th Cir. 1995).
Probable cause existed to arrest the Fouquets. Two girls
living in the Fouquet home reported sexual misconduct by Robert
Fouquet. Jane Doe II corroborated Jane Doe I’s account of the
felonious conduct. Both girls reported criminal beatings to
themselves and others. Mark Fouquet and Jane Doe II reported that
Cherie Fouquet instructed the children to remain silent about
corporal punishment in the home. These facts and circumstances, of
which Detective Richard had reasonably trustworthy information, are
sufficient in themselves to cause a man of reasonable caution to
believe that an offense has been or is being committed. This
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constitutes probable cause. Brinegar v. United States, 338 U.S.
160, 175-76, 69 S.Ct. 1302, 1310-11 (1949). Probable cause
precludes a § 1983 suit for unlawful arrest. Pfannstiel v. City of
Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).
Mrs. Fouquet contends that Detective Richard’s warrant
affidavit contained “blatant misrepresentations and material
omissions” critical to a finding of probable cause. Allegations of
omissions and misrepresentations are only relevant where they were
made knowingly and intentionally, or with reckless disregard for
the truth. United States v. Martin, 615 F.2d 318, 328 (5th Cir.
1980); Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674,
2676 (1978). Although Mrs. Fouquet asserts that Detective Richard
recklessly disregarded the truth, there is no evidence to support
such a contention. Moreover, the information Mrs. Fouquet claims
was improperly omitted is not material and would not negate
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probable cause if included in the affidavit.1 See Martin, 615 F.2d
at 328.
Even if probable cause did not exist, the deputies were
reasonable in their belief that it did. Government officials
performing discretionary functions are entitled to qualified
immunity from civil damages liability “as long as their actions
could reasonably have been thought consistent with the rights they
are alleged to have violated.” Anderson v. Creighton, 483 U.S.
635, 638, 107 S.Ct. 3034, 3038 (1987). The qualified immunity
1
Examples of what Mrs. Fouquet considers glaring omissions
include the following: Mark Fouquet allegedly believed he would
take over the ministry if his father went to jail; statements were
made to the detectives during their investigation to the effect
that Jane Doe I was a liar and sexually promiscuous; and three
other children stated that they had not been abused.
Mrs. Fouquet also points to Detective Richard’s statement in
the affidavit regarding the conclusion of the first investigation.
In the affidavit, Detective Richard states “[w]ith Jane Doe I’s
inability to return to this area, the case was closed unless
further information becomes available.” In his deposition,
Detective Richard stated that at the close of the initial
investigation, he had doubts about Jane Doe I’s veracity. Mrs.
Fouquet argues that the affidavit is misleading because it
indicates to the magistrate that the first investigation was closed
because of Jane Doe I’s location, not her lack of credibility.
However, Detective Richard’s deposition does not show that he ended
the investigation because of Jane Doe I’s credibility, but that “at
the conclusion of the investigation,” he believed her to be a liar.
There is no reason to believe that Jane Doe I’s inability to return
to the area was not a factor in closing the investigation, and
there is nothing to suggest that Detective Richard intentionally or
recklessly misled the magistrate. It was immaterial whether
Detective Richard believed Jane Doe I to be a liar at the close of
the first investigation since her story was corroborated by Jane
Doe II, an individual Detective Richard considered trustworthy.
More importantly, even if the information was included in the
affidavit, probable cause still existed to believe a crime was
committed in light of Jane Doe II’s statements.
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defense protects all but the plainly incompetent or those who
knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 1096 (1986). If reasonable public officials could
differ as to the lawfulness of the official’s actions, the official
is entitled to qualified immunity. Pfannstiel, 918 F.2d at 1183.
Thus, even if the conduct is actually violative of constitutional
rights, the official is entitled to qualified immunity if the
conduct was objectively reasonable. Id.
Considering all the information available to the detectives,
including information omitted from the affidavit, it was
objectively reasonable for them to believe probable cause existed
to obtain and execute the warrants. The undisputed facts,
especially Jane Doe II’s corroboration of Jane Doe I’s account,
would, at the very least, cause reasonable police officers to
differ as to the existence of probable cause. The district court
was correct in its determination that appellees are entitled to
qualified immunity.
Finally, Mrs. Fouquet contends that the district court erred
by dismissing her pendent state law claims. A district court may
decline to exercise supplemental jurisdiction over pendent state
law claims if the district court has dismissed all claims over
which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). The
district court did not abuse its discretion by dismissing without
prejudice the state law claims after granting summary judgment on
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the § 1983 claim. See Carnegie-Mellon University v. Cohill, 484
U.S. 343, 108 S.Ct. 614 (1988).
AFFIRMED.
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