IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31280
Summary Calendar
JAMES F. FISHER,
Plaintiff-Appellant,
versus
THE CITY OF SLIDELL; CHIP BROCKHAUS, in his individual
and official capacity as a detective of the Slidell
Police Department,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1179-J
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December 23, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant, James J. Fisher, filed suit against
defendants-appellees, the City of Slidell (“the City”) and Chip
Brockhaus, a detective employed by the City, alleging violations
of his rights under the Fourth Amendment together with claims for
defamation and wrongful arrest. Fisher now appeals from the
district court’s dismissal of his claims and the denial of his
*
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that this opinion should not be published and is not precedent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.
No. 98-31280
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request to conduct limited discovery on the issue of qualified
immunity. Finding no error, we affirm.**
A district court’s ruling on a Rule 12(b)(6) motion is
subject to de novo review. See Barrientos v. Reliance Standard
Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir. 1991). The motion
may be granted “only if it appears that no relief could be
granted under any set of facts that could be proven consistent
with the allegations.” Id. (quotation marks and citation
omitted). The review of such a motion is limited to the
pleadings, although the court may refer to documents attached to
and incorporated in the complaint. See Jackson v. City of
Beaumont Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992);
Lovelace v. Software Spectrum, Inc.,78 F.3d at 1017.
As qualified immunity was raised as a defense, the standard
of pleading is governed by this court’s en banc opinion in
Schultea v. Wood, 47 F.3d 1427, 1432-33 (5th Cir. 1995). This
requires the plaintiff to make more than mere conlusionary
allegations; he must set forth particular facts which, if true,
would demonstrate he has a cause of action. See id.
Fisher’s complaint and Rule 7(a) reply allege that Brockhaus
knowingly or recklessly placed false information in affidavits
supporting requests for search and arrest warrants. However,
Fisher provides no support for this conclusion. At best, he
**
Fisher’s complaint alleged other incidents which
apparently occurred prior to the arrest in question. The
district court dismissed those claims as barred by prescription.
Fisher does not address those claims on appeal and, therefore,
they are deemed abandoned. See Matter of Tex. Mortgage Services
Corp., 761 F.2d 1068, 1073 (5th Cir. 1985).
No. 98-31280
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states that the information set forth by Brockhaus was false. He
also attacks the veracity of both Bordelon and a confidential
informant. However, both the Rule 7(a) reply and Brockhaus’s
affidavits indicate that Brockhaus spoke with Bordelon and that
Bordelon’s story was confirmed, in part, by the independent
documentary evidence. There was sufficient information for a
magistrate to determine Bordelon’s credibility.
The information provided by Bordelon was sufficient, without
the CI or the bank officer, to support a finding of probable
cause that Fisher had been involved in obtaining a fradulent loan
for Bordelon. See Hart v. O’Brien, 127 F.3d 424, 444 (5th Cir.
1997) (probable cause exists where facts known at time of arrest
would lead a reasonable person to believe the defendant had
committed an offense). Although Fisher argues that Bordelon’s
information was false, he makes only a conclusionary allegation
that Fisher knew or should have known the information was false;
he does not state any facts showing that Fisher knew or should
have known the information was false. Without more, this is
insufficient to overcome the heightened pleading requirement.
See Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996).
Accordingly, the district court did not err in dismissing
Brockhaus’s claims. It follows that the district court also
correctly denied Fisher’s request for limited discovery.
See Wicks v. Mississippi State Employment Serv., 41 F.3d 991,
994-96 (5th Cir. 1995) (limited discovery should be allowed on
issue of qualified immunity only if the conclusional meets the
threshold pleading burden).
No. 98-31280
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With respect to Fisher’s claim for wrongful arrest, such a
claim requires a showing of no probable cause. See Wolfe v.
Weiner Enterprises, Inc., 648 So. 2d 1293, 1295 (La. 1995);
Breaux v. Jefferson Davis Sheriff’s Department, 689 So. 2d 615,
617 (La. App. 3d Cir. 1997). As the district court correctly
determined that Brockhaus had probable cause, Fisher’s claims
necessarily fail.
As for the state law claim of defamation, Fisher failed to
allege any defamatory statement. See Trentecosta v. Beck, 703
So. 2d 552, 559 (La. 1997). The only allegation by Fisher is
that Brockhaus notified the media that Fisher was going to be
arrested, which was, in fact, true. Thus, Fisher’s complaint
failed to state a cause of action for defamation.
Finally, without liability on the part of Brockhaus, and
absent any allegation that Brockhaus acted pursuant to an
official policy of the City of Slidell, Fisher failed to state a
calim against Slidell; thus, the district court properly
dismissed the claims against Slidell. See Monell v. Department
of Social Services of the City of New York, 436 U.S. 658, 691
(1978).
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.