REVISED JUNE 29, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30019
_____________________
PAUL R PIAZZA
Plaintiff - Appellant
v.
JEFF MAYNE
Defendant - Appellee
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
June 26, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee in this section
1983 action for malicious prosecution in violation of the
Fourteenth Amendment. We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 27, 1993, Defendant-Appellee Jeff Mayne, an
enforcement agent with the Louisiana Department of Wildlife and
1
Fisheries (the “Department”), inspected a truck containing a
1,121-pound shipment of hybrid striped bass (the “July 27
shipment”). This shipment belonged to Plaintiff-Appellant Paul
Piazza, a licensed wholesale seafood distributor. Mayne
contacted the Department. After some initial confusion, he
discovered that on July 21, 1993, Piazza reported a purchase of
2,543 pounds of hybrid striped bass from the Silver Streak Bass
Company, of Seguin, Texas (the “July 21 purchase”). However,
Mayne believed that the fish looked “too fresh” to belong to the
six-day old July 21 purchase. Consequently, he seized the
truckload of fish.
Mayne took a sample from the seized shipment, which he
brought to John Burdon and Howard Ragillio, biologists who worked
for the Department. Burdon and Ragillio examined the fish, and
opined that the fish had been harvested less than 72 hours
earlier. Like Mayne, they concluded that the fish was “too
fresh” to have come from the July 21 purchase. On July 29, the
shipment of fish was sold at auction.
On August 3, 1993, Mayne visited Piazza’s place of business
in order to inspect his records. According to Piazza, Mayne
inspected and confiscated copies of all of Piazza’s records of
sales of hybrid striped bass from June 30 to July 31, 1993.
However, Mayne only asked for the purchase records from the
Silver Streak Bass Co., the source of the July 21 purchase, for
2
that same period. Piazza allegedly twice told Mayne that he also
purchased hybrid striped bass from other suppliers, and offered
to show Mayne records of those purchases. Piazza contends that
Mayne refused to inspect or accept copies of any such records.1
After examining the records that he had requested, Mayne arrived
at the conclusion that between June 30 and July 31, 1993, Piazza
sold 12,573 pounds of hybrid striped bass but reported purchasing
only 9,840 pounds. Mayne subsequently issued a citation to
Piazza for violating Louisiana Revised Statute 56:327(A).2
On November 1, 1993, Piazza faxed a copy of records of his
July 1993 purchases of 2,809 pounds of hybrid striped bass from
Bayou Blue Mariculture, a Louisiana aquaculture producer, to the
Louisiana district court where his trial was scheduled for the
following day. Piazza presented these records to Mayne and the
district attorney, but Mayne persisted in refusing to review
them.
1
In his reply to Piazza’s opposition to his motion for
summary judgment, Mayne disputed that Piazza offered to show him
records of in-state sales but stated that he accepted Piazza’s
version as true for the purposes of the motion.
2
Section 327(A)(1) provides that “[n]o person shall
purchase, sell, exchange, or offer for sale or exchange, or
possess or import with intent to sell or exchange” fish belonging
to the species enumerated in § 327(A)(1)(a). LA. REV. STAT. ANN.
56:327(A) (West 2000). The latter provision creates an exception
for “hybrid striped bass (striped bass-white bass cross or
striped bass-yellow bass cross) . . . which are produced and
regulated pursuant to provisions of [§ 411] et seq. governing
domestic fish farming.” LA. REV. STAT. ANN. 56:327(A)(1)(a) (West
2000).
3
On November 2, 1993, Piazza was tried for the offense of
selling and/or purchasing freshwater game fish in violation of
§ 327(A) before the 22nd Judicial District Court of Louisiana.
According to the trial judge, the case “‘boil[ed] down to simply
a matter of whose experts convince[d] the Court and convince[d]
the Court beyond a reasonable doubt that their position [was]
correct.’” State v. Piazza, 668 So.2d 1125, 1126 (La. 1996)
(“Piazza II”). For its part, the State submitted evidence that
Mayne’s decision to seize the July 27 shipment was based on his
examination of the shipment and subsequent conclusion that the
fish were too fresh to have belonged to the July 21 purchase from
Texas. See State v. Piazza, 655 So.2d 1357, 1361 (La. App. 1
Cir. 1995), rev’d by 668 So.2d 1125 (La. 1996) (“Piazza I”). In
addition, John Burdon and Howard Ragillio testified as expert
witnesses that they had examined samples from the seized shipment
and concluded that the fish had been caught seventy-two hours or
less prior to their examination. See id. at 1362. The State
also submitted a contemporaneous report by the two biologists
that described the physical characteristics of the fish and
stated the same conclusion to which the biologists testified at
trial. See id. at 1361-62.
In his defense, Piazza testified that the fish from the
seized shipment were part of the July 21 purchase. See id. at
1363. He described the procedure his company used for packaging
fish, and gave his opinion as an expert in fish observation that
4
“to someone observing his fish, who was unfamiliar with the
procedures he uses in handling and packaging fish, the fish would
appear to be ‘fresher longer.’” Id. at 1363. The defense also
introduced a letter from Michael Russell, president of Central
Analytical Laboratories, Inc., to whom Piazza had sent samples of
(1) freshly caught fish, (2) fish from the July 21 purchase that
had not yet been sold, and (3) fish from the seized shipment.
See id. at 1363-64. The letter stated that the first sample
appeared to be freshly caught, but that “it could not be
determined with any exactness how much time had elapsed since the
fish in either [the second or third] sample had been caught.”
Id. at 1364. Piazza also introduced the records of his July
purchases of hybrid striped bass from Bayou Blue Mariculture.
Nevertheless, Piazza was convicted. He was sentenced to 30 days
in jail, fined $400, and had his license as a wholesale fish
distributor revoked. Immediately following his conviction,
Piazza was taken to the St. Tammany Parish Jail. He was booked,
photographed, fingerprinted, and then released on his own
recognizance. Piazza spent between forty minutes and an hour in
custody.
Piazza appealed his conviction. By means of two of his
assignments of error before the Court of Appeal of Louisiana,
Piazza argued that the evidence was insufficient to prove that he
had sold or purchased freshwater game fish in violation of
§ 327(A). See Piazza I, 655 So.2d at 1364. Specifically, Piazza
5
argued that “some of the [seized] fish were aquaculturally-raised
fish imported into [Louisiana] pursuant to [§ 327.1],”3 and thus,
their purchase or sale did not violate the statute.4 Id. at
1366. As a preliminary matter, the Court of Appeal of Louisiana
determined that § 327.1 established an exception to § 327(A), and
interpreted § 327.1 to authorize “the importation of
3
LA. REV. STAT. 56:327.1 provides:
A. Notwithstanding the provisions of
[§ 327(A)(1)(b)(i)] . . . cultured fish raised in an
aquacultural environment may be imported into this
state. No live fish shall be imported under this
Section.
B. As used in this Section, the following terms shall
have the following meanings:
(1) “Aquaculture” means aquaculture as defined in
[§ 356].
(2) “Cultured fish” means saltwater game fish covered
by the provisions of [§ 327(A)(1)(b)(i)] or shellfish.
C.(1) With the exception of largemouth bass
(Micropterus salmoides), spotted bass (Micropterus
punctulatus), shadow bass (Ambloplites ariommus), black
or white crappie (Pomoxis nigromaculatus, P.
annularis), white bass (Morone chrysops), yellow bass
(Morone mississippiensi), striped bass (Morone
saxatilis), and any species of bream (Lepomis supp. and
Centrarchus sp.), cultured fish, raised in an
aquacultural environment, may be imported into this
state for sale at wholesale or retail.
4
Piazza also argued that (1) the state had not proved that
hybrid striped bass constituted freshwater game fish, and (2)
some of the seized fish were raised in Louisiana fish farms. See
Piazza I, 655 So.2d at 1365. The court of appeal summarily
rejected the first argument, and rejected the second as contrary
to the trial court’s determination that the State’s fish experts
were more credible than Piazza’s. See id. at 1365, 1366.
6
aquaculturally-raised hybrid striped bass into [Louisiana] for
sale at wholesale or retail.” Id. at 1367. However, the court
of appeal noted that the trial court
accepted the testimony given by Burdon and Ragillio,
and concluded that the seized fish were not part of the
shipment of fish reported in to the Department on July
21. Thus, the defendant failed to establish that some
of the fish seized (i.e. those fish imported from
Texas) were aquaculturally-raised fish.
Id. (emphasis added). The court of appeal therefore found that
“any rational trier of fact could have concluded that the
evidence proved beyond a reasonable doubt that defendant sold
freshwater game fish, hybrid striped bass, conduct proscribed by
[§ 367(A)(1)(a)].” Id. at 1367-68.
Piazza then filed a petition for certiorari to the Louisiana
Supreme Court, which granted review. See Piazza II. The
Louisiana Supreme Court held that, under § 327, “the sale or
importation of any fish belonging to a species of freshwater or
saltwater game fish found in the waters of Louisiana is
prohibited under all but specifically defined circumstances.”
Id. at 1127 (emphasis in the original). The court further held
that the exceptions to the statute, such as the exception
permitting “the importation of freshwater or saltwater game fish
. . . harvested in a licensed aquaculture program of another
state” created by § 327.1, are affirmative defenses that must be
proved by a preponderance of the evidence at trial. Id.
(citations omitted).
7
The court then reviewed the sufficiency of the evidence with
regard to Piazza’s affirmative defense that the fish seized by
Mayne originated in a lawful shipment of aquaculturally harvested
fish from Texas. See id. at 1128. The court determined that the
testimony of the Department agents who had opined that the fish
were too fresh did not offer “an articulable basis for finding
that the inspection of [the fish] . . . provided a reliable
indicator and a scientific basis for determining the shipment’s
overall age.” Id. The court found, moreover, that Piazza had
rebutted this evidence with expert testimony. See id.
Furthermore, the court observed that Piazza had adduced evidence
of having received a large shipment of hybrid striped bass from
Texas five days before the shipment Mayne seized was sent out.
See id. The court also noted that Piazza had introduced records
that accounted for the discrepancy Mayne found between the amount
of fish sold and the amount of fish purchased. See id. Based on
this evidence, the supreme court concluded, “any rational trier
of fact would have found that [the July 21 purchase and the
seized July 27 shipment] were probably connected.” Id. As a
result, the court found, no rational trier of fact could have
failed to conclude that Piazza had proved that he had obtained
the fish seized on July 27 by lawful means by a preponderance of
the evidence. See id. at 1129 (citing State v. Peters, 643 So.2d
1222 (La. 1994); State v. Lombard, 486 So.2d 106 (La. 1986)).
The court subsequently reversed Piazza’s conviction. See id.
8
On January 24, 1997, Piazza commenced this action under 42
U.S.C. § 1983 in the United States District Court for the Eastern
District of Louisiana, alleging malicious prosecution in
violation of the Fourth and Fourteenth Amendments. In his
complaint, he alleged that Mayne “knew or should have known, that
the fish he seized had been lawfully imported into Louisiana by
plaintiff less than six days prior to their seizure,” and thus,
that Mayne had issued a citation for violation of § 327(A)
maliciously and without probable cause. On December 8, 1997,
Mayne filed a motion for summary judgment on the grounds of
qualified immunity. Piazza opposed the motion, and both parties,
upon the district court’s request, submitted additional briefing
on the issues of probable cause and malice.
The district court found that Mayne’s conduct did not
violate the Constitution and thus that Mayne was entitled to
qualified immunity. See Piazza v. Mayne, 23 F.Supp.2d 658, 661
(E.D. La. 1998)(“Piazza III”). The court noted that the Supreme
Court of Louisiana had “determined that Mayne had probable cause
to issue a citation given that the elements of the crime --
namely, possession with intent to sell certain freshwater game
fish -- were easily satisfied.” Id. at 662. It further reasoned
that although Piazza was absolved of liability because he had
proved an affirmative defense, the affirmative defense did not
negate the conduct that established probable cause at the time
9
the citation was issued. See id. In the absence of directly
controlling Fifth Circuit precedent, the district court was
persuaded by decisions from the Seventh Circuit,5 Tenth Circuit,6
and the District of Hawaii7 holding that affirmative defenses do
not bear on the probable cause analysis. See id. Accordingly,
the court found that Mayne had probable cause to issue the
citation, regardless of whether Mayne knew of any additional
purchase records. See id.
The district court further concluded that even if Piazza had
sufficiently established a constitutional violation, Mayne was
nevertheless entitled to qualified immunity because his conduct
was objectively reasonable. See id. As a result, the court
granted Mayne’s motion for summary judgment. On December 1,
1998, the court entered a final judgment in favor of Mayne on
Piazza’s § 1983 claims, and dismissed Piazza’s state law claims
without prejudice. Piazza timely appeals.
II. DISCUSSION
A. Standard of Review
5
Humphrey v. Staszak, 148 F.3d 719 (7th Cir. 1998); Simmons
v. Pryor, 26 F. 3rd 650 (7th Cir. 1994), cert. denied, 511 U.S.
1082 (1994).
6
DeLoach v. Bevers, 922 F. 2d 618 (10th Cir. 1990), cert.
denied, 502 U.S. 814 (1991).
7
Carnell v. Grimm, 872 F.Supp. 746 (D. Haw. 1994), aff’d
in part, appeal dismissed in part, 74 F.3d 977 (9th Cir. 1996).
10
We review the grant of summary judgment de novo, applying
the same criteria employed by the district court in the first
instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th
Cir. 1994). To prevail on summary judgment, a movant must
demonstrate that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986). If the movant
succeeds in making that showing, the nonmoving party must set
forth specific facts showing a genuine issue for trial and not
rest upon the allegations or denials contained in its pleadings.
See FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256-57 (1986). We review the evidence bearing on these
facts, and the inferences to be drawn therefrom, in the light
most favorable to the non-moving party. See Lemelle v. Universal
Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1993).
B. Qualified Immunity
“[G]overnment officials performing discretionary functions[]
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person should have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(citations omitted). Determining whether a public official is
11
entitled to qualified immunity from liability under § 1983 is
potentially a two-step inquiry. First, the court must decide
whether the official’s conduct violated a right recognized under
current constitutional law, and whether that right was clearly
established at the time of the official’s conduct. See Siegert
v. Gilley, 500 U.S. 226, 231 (1991); Jones v. Collins, 132 F.3d
1048, 1052 (5th Cir. 1998) (citing Siegert). If the court finds
that the official’s conduct violated a clearly established
constitutional right, the court must then consider whether the
official is nonetheless entitled to qualified immunity because
his conduct was objectively reasonable in light of the law at the
time the conduct occurred. See Jones, 132 F.3d at 1052 (citing
Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir.
1996)). We need not reach the second step of this analysis
because the summary judgment evidence, construed in the light
most favorable to Piazza, indicates that Mayne’s conduct did not
violate Piazza’s Fourth Amendment right to be free from malicious
prosecution.
1. Violation of a Constitutional Right
This court has recognized that malicious prosecution
implicates rights guaranteed by the Fourth Amendment and is
therefore actionable under § 1983. See Eugene v. Alief Indep.
Sch. Dist., 65 F.3d 1299, 1303 (5th Cir. 1995). We recognize
that there is some authority in our circuit for the proposition
12
that the reviewing court looks to the elements of this tort as
defined under the law of the relevant state in determining
whether a plaintiff has established a claim of malicious
prosecution under § 1983. See, e.g., Kerr v. Lyford, 171 F.3d
330, 340 (5th Cir. 1999) (defining malicious prosecution under
Texas state law). Furthermore, Piazza asserts on appeal (and
Mayne does not dispute) that the requirements of the state law
tort and the constitutional tort are the same. Thus, we assume
without deciding that the requirements are coextensive in the
context of a § 1983 action.
As a result, Piazza must establish the elements of malicious
prosecution under Louisiana law in order to avoid summary
judgment on the first step of the qualified immunity inquiry.
Those elements are as follows:
(1) the commencement or continuance of an original
criminal proceeding; (2) its legal causation by the
present defendant against plaintiff who was 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; (6) damage conforming to
legal standards resulting to plaintiff.
Miller v. East Baton Rouge Parish Sheriff’s Dep’t, 511 So.2d 446,
452 (La. 1987) (citations omitted). The parties only dispute
whether Piazza has established the fourth element: the absence
of probable cause.
2. Probable Cause
Piazza attached affidavits to his opposition to Mayne’s
13
summary judgment motion, stating that he told Mayne that he had
purchased hybrid striped bass from other aquaculture producers
besides the Silver Streak Bass Company while Mayne was at
Piazza’s office. This evidence also indicates that Piazza
offered to show Mayne the records of those purchases, but that
Mayne refused to examine them prior to issuing the citation.
Piazza argues on appeal that these records established that he
did not violate § 327(A), that Mayne knew that the records
exonerated Piazza at the time he issued the citation,8 and that
Mayne’s refusal to consider them deprives Mayne of qualified
immunity. We disagree.
The Supreme Court has defined probable cause as the “facts
and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
8
Mayne stated in his motion for summary judgment that he
based his belief that Piazza had violated § 327(A) on (1) his
observation of the hybrid striped bass and conclusion, which was
confirmed by two Department biologists, that the fish were “too
fresh” to have belonged to the July 21 purchase; and (2) his
realization that, according to the records at Piazza’s place of
business, a discrepancy of 2,733 more pounds of hybrid striped
bass sold than purchased existed for the June 30 - July 31
period. However, instead of attaching an affidavit, as is usual
under Rule 56, he quoted the factual background section of the
Louisiana Supreme Court’s decision in Piazza II (which, in turn,
is based on Mayne’s testimony at Piazza’s trial) in support of
these facts. Piazza did not object in the district court to
Mayne’s use of the Louisiana Supreme Court decision or to the
absence of an affidavit. His objection here is too late.
14
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)
(defining probable cause to justify arrest) (citations omitted);
see also Miller, 511 So.2d at 452 (defining probable cause for
the purposes of malicious prosecution claims). When determining
whether a reasonably cautious person would have believed that a
violation occurred, we consider the expertise and experience of
law enforcement officials. See United States v. Garcia, 179 F.3d
265, 268 (5th Cir, 1999), cert. denied, – S.Ct. –, 2000 WL 625832
(June 5, 2000) (citing United States v. Ortiz, 422 U.S. 891, 897
(1975)). Furthermore, probable cause “does not demand any
showing that [the belief that an offense was committed] be
correct or more likely true than false.” Texas v. Brown, 460
U.S. 730, 742 (1983). Rather, the probable cause analysis only
requires that we find a basis for an officer to believe to a
“fair probability” that a violation occurred. See United States
v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (citations
omitted). To the extent that the underlying facts are
undisputed, we may resolve questions of probable cause as
questions of law. See Blackwell v. Barton, 34 F.2d 298, 305 (5th
Cir. 1994) (citations omitted).
According to Piazza, the records documented purchases from
fish farms other than the Silver Streak Bass Company and would
have demonstrated that Piazza purchased more hybrid striped bass
than he sold between June 30 and July 31, 1993. In determining
whether this evidence establishes that Mayne lacked probable
15
cause to believe that Piazza violated § 327(A), we are guided by
the Louisiana state courts’ decisions in Piazza I and II. It
appears to us that the presence or absence of a discrepancy
between purchases and sales is only marginally relevant to the
question of whether a violation of § 327(A) occurred, as defined
by those courts on the circumstances present here. In Piazza II,
the Louisiana Supreme Court’s decision to reverse Piazza’s
conviction turned on its finding that (1) the July 21 purchase
was large enough to account for the entire July 27 shipment, and
(2) Piazza had rebutted the State’s weak evidence that the seized
fish appeared “too fresh” to have belonged to the July 21
purchase with testimony regarding his techniques for preserving
the fish. See Piazza II, 668 So.2d at 1128. Indeed, the supreme
court found that the evidence proving that no discrepancy existed
merely served to corroborate the evidence of critical import:
Piazza’s testimony that the fish from the July 27 shipment
originated from the July 21 purchase. See id. In Piazza I,
moreover, the Louisiana Court of Appeal utterly failed to mention
the records of in-state purchases that accounted for the
discrepancy between sales and purchases when discussing the trial
court’s conclusion that the seized fish were not part of the July
21 shipment, and thus not imported aquaculturally raised fish
falling under an exception to § 327(A). See Piazza I, 655 So.2d
at 1367. These decisions illustrate that the determination of
whether or not Piazza violated § 327(A) hinged on evidence
16
establishing that the hybrid striped bass had been purchased from
an out-of-state fish farm, rather than evidence establishing that
Piazza had purchased as much fish as he sold during a particular
period.
We are persuaded that the latter evidence is likewise of
little value in determining whether Mayne had probable cause to
believe that Piazza’s possession of the hybrid striped bass
violated the statute. Thus, we decline to find, as Piazza
suggests we should, that Mayne’s implicit knowledge of the
content of these records negated his probable cause to believe
that Piazza had violated § 327(A). Instead, we conclude that
Piazza has failed to demonstrate that Mayne’s conduct violated a
constitutional right, and that the district court properly
entered summary judgment against Piazza. This conclusion
obviates the need to consider whether, as a general principle,
facts supporting the existence of an affirmative defense are
relevant to the determination of probable cause. We therefore
decline to adopt the district court’s broad holding on that
issue.
IV. CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment to Defendant-Appellee Mayne is AFFIRMED.
17