United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-30653
MISTY E. MARTIN,
Plaintiff-Appellant,
versus
CITY OF ALEXANDRIA; ERNEST GLEASON, individually and in his
official capacity as a City of Alexandria Police Officer; CRAIG
MICKEL, individually and in his official capacity as a City of
Alexandria Police Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(1:04-CV-2011)
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Misty E. Martin challenges, pro se, the summary judgment
awarded the City of Alexandria and Officer Gleason concerning
Martin’s arrest by Officers Gleason and Mickel, members of the
City’s police department. AFFIRMED.
I.
On 16 September 2003, Officers Gleason and Mickel were
dispatched to 5539 Downing Street (the Leisure Villa Apartments),
*
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this opinion should not be published and is not precedent except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.
in Alexandria, Louisiana, to investigate a vehicle accident. Upon
arriving, the Officers spoke with Greg Wright, the owner of the
Leisure Villa Apartments, who showed them a damaged wall between
his apartments and the Raintree Condominiums where Martin lived
(June Johnson was her landlord).
The Officers spoke with Martin and learned she owned the
vehicle in question. The day before, Martin had twice crashed her
vehicle in the vicinity of the wall: first, she hit the wall when
her brakes failed; immediately after that, she hit a fence when she
drove forward and her brakes failed again. Martin told the
Officers “she had ‘reported the accident to her landlord
[,Johnson,] who informed [Martin] that the fence was [her
landlord’s] and told her to wait until [the landlord] got home
before she did anything else’”.
After Martin explained her version of the incidents, the
Officers gave her accident reports to complete. Martin refused to
do so before speaking with either an attorney or her father. She
was subsequently arrested and charged with simple criminal damage
to property. The Officers also had her vehicle towed after
determining it was unsafe and that the temporary tags had been
altered. Martin, then five months pregnant, claims she injured her
ankle due to the Officers’ unnecessarily rough handling of her
during the arrest.
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In September 2004, Martin filed this pro se action in
Louisiana state court. She raised the following claims against
Officers Gleason and Mickel: pursuant to 42 U.S.C. § 1983, false
arrest and violations of the Fourth and Fourteenth Amendments;
pursuant to Louisiana Civil Code Article 2315, assault, battery,
terrorizing, intimidation, libel, and slander; and pursuant to
Louisiana law, negligence. Martin claimed the City was liable for,
inter alia, failure to properly train and supervise its Officers;
and under the theory of respondeat superior.
This action was removed to federal court, based on federal-
question jurisdiction. In March 2005, Defendants moved for summary
judgment, contending: Martin’s claims lacked merit; and the
Officers were entitled to qualified immunity. Affidavits from
Officers Gleason and Mickel supported the motion. Defendants also
moved for attorneys’ fees; the district court stayed that motion
pending appeal.
Summary judgment was granted at a 10 May 2005 hearing; final
judgment was entered on 1 June 2005 in favor of the City and
Officer Gleason. Although the summary judgment did not include
Officer Mickel, the remaining named defendant, the action was
dismissed on 2 June 2005, pursuant to Federal Rule of Civil
Procedure 41(b) and Local Rule 41.3W, for failure “to serve [that
Officer] within 120 days of filing the complaint”.
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II.
Martin appeals only the summary judgment. It is reviewed de
novo, applying the same standard as the district court. E.g.,
Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002), cert.
denied, 537 U.S. 1188 (2003). Such judgment is proper when “there
is no genuine issue as to any material fact and ... the moving
party is entitled to a judgment as a matter of law”. FED. R. CIV.
P. 56(c). All evidence is construed in the light most favorable to
the non-movant. E.g., Kee v. City of Rowlett, 247 F.3d 206, 210
(5th Cir.), cert. denied, 534 U.S. 892 (2001). A party opposing
summary judgment must provide specific facts showing the existence
of a genuine issue for trial; it may not rest on the pleadings.
E.g., Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998).
Martin claims the district court erred by: (1) concluding her
Fourteenth Amendment rights to due process and equal protection
were not violated by impounding her vehicle, depriving her of her
property, as alleged in her complaint; (2) denying her motion to
allow her to have her paralegal “assistant at the table with her”
during the summary-judgment hearing; (3) granting the motion to
strike portions of her landlord’s affidavit; (4) finding probable
cause existed for her arrest; (5) granting summary judgment despite
the Officers’ lack of credibility; and (6) granting the Officers
qualified immunity.
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Contrary to her contention on appeal, Martin’s complaint did
not make a Fourteenth Amendment, or any other, claim regarding her
vehicle. Therefore, she has waived this claim, and we will not
address it. E.g., Savers Fed. Sav. & Loan Ass’n v. Reetz, 888 F.2d
1497, 1501 (5th Cir. 1989). Nor does Martin raise any claims
against the City or regarding the dismissal for failure to serve
Officer Mickel.
Martin presents only her false arrest claim (including
whether probable cause existed for the arrest). She fails to brief
any other substantive claims, other than asserting, in one brief
paragraph on page 29 of her brief, that summary judgment is
generally inappropriate for negligence claims. Therefore, she has
waived all claims other than false arrest, concerning only Officer
Gleason. E.g., Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
A.
Martin claims the district court erred by denying her request
to allow her father, a non–lawyer, to assist her during oral
argument on the summary-judgment motion. Because her father is not
a licensed lawyer, the district court properly declined to allow
him to appear with Martin during the hearing. See Iannaccone v.
Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se means to
appear for one's self, a person may not appear on another person's
behalf in the other's cause”. (emphasis in original)).
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B.
Martin contends the district court erred by striking portions
of her landlord’s affidavit, submitted in opposition to summary
judgment. We review such evidentiary rulings for abuse of
discretion. St. Romain v. Indus. Fabrication & Repair Serv., Inc.,
203 F.3d 376, 381 (5th Cir.), cert. denied, 531 U.S. 816 (2000).
In her affidavit, Johnson, Martin’s landlord at the time of
the accident, recounts her version of the events surrounding the
vehicle crash. According to the affidavit, Martin called to tell
Johnson she crashed into a brick wall, which Johnson refers to as
“my brick wall”; Johnson told Martin she would take care of
collecting from the insurance company, and that Martin should go to
the hospital to make sure she was not injured; and, because Johnson
believed she jointly owned the wall, she believed she was
responsible for fixing it.
At the summary judgment hearing, the court stated it would
consider “paragraph 1, the first sentence of paragraph 2, and
paragraph 5. The rest, I do consider the objection valid as it
being irrelevant”. The subsequent judgment stated the affidavit
was stricken except for the above-listed parts.
Nothing in the stricken portions of the affidavit strengthens
Martin’s claims. For the false arrest claim, the only one raised
on appeal, at issue is whether the Officers had probable cause to
believe Martin committed simple criminal property damage.
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Therefore, it is irrelevant whether Martin reported the accident to
Johnson and how Johnson told Martin to handle it.
Johnson’s statements that she owned the wall and that Martin
did not damage it without permission may have aided Martin’s
defense to the charge of simple criminal damage to property. That,
however, does not affect whether, at the time of the arrest, the
Officers had probable cause to believe Martin had committed that
offense.
C.
To defeat claimed qualified immunity, the plaintiff must
satisfy a two–step process. E.g., Hernandez v. Tex. Dep't of
Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004).
First, plaintiff must state “a violation of a clearly established
right” under existing law. Id. “If there is no constitutional
violation, our inquiry ends.” Mace v. City of Palestine, 333 F.3d
621, 623 (5th Cir. 2003). If plaintiff does so, she must next show
the conduct at issue was objectively unreasonable in the light of
clearly established law existing at the time of the incident.
E.g., Hernandez, 380 F.3d at 879.
Concerning the first prong for our summary-judgment qualified-
immunity inquiry, Martin claims the Officers violated her Fourth —
incorporated through the Fourteenth — Amendment right to be free
from arrest without probable cause. The Fourth Amendment
guarantees the right to be free from unlawful arrest. Sorenson v.
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Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). Sorenson v. Ferrie, 134
F.3d 325, 328 (5th Cir. 1998). Accordingly, she satisfies the
first prong.
For the second prong, as noted, if the Officers had probable
cause to arrest, there is no Fourth Amendment violation. Id.
Therefore, Officer Gleason would be, inter alia, entitled to
qualified immunity. Id. Because the second prong concerns
objective unreasonableness, the Officers’ subjective reasons for
making an arrest need not be identical to the objective factors
creating probable cause. See Devenpeck v. Alford, 543 U.S. 146,
154 (2004). In other words, even if Martin was arrested because
she refused to cooperate with the Officers, her arrest is still not
objectively unreasonable if probable cause existed to arrest her
for simple criminal damage to property.
Under Louisiana law, to prove the offense of simple criminal
damage to property, the State must prove the accused damaged
another’s property without the owner’s consent. LA. REV. STAT. ANN.
§ 14:56; State v. Shaw, 850 So. 2d 868, 875 (La. Ct. App. 2003).
Simple criminal damage to property is a general-intent crime.
Shaw, 850 So. 2d at 875.
Pursuant to our review of the summary-judgment record,
probable cause existed for Martin’s arrest. She admits telling the
Officers she crashed into the wall; they saw the damage; and the
wall’s putative owner (the owner of the Leisure Villa Apartments)
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told them he had not given consent. (At a minimum, it was
reasonable for the Officers to believe the owner of those
apartments owned the wall.)
Because the arrest was not objectively unreasonable, Officer
Gleason is entitled to qualified immunity. Therefore, summary
judgment was properly awarded him against the false-arrest claim.
III.
For the foregoing reasons, the summary judgment is
AFFIRMED.
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