Fouquet v. Canulette

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 96-30930
                          Summary Calendar
                       _____________________


     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this opinion should not be published and is not precedent except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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