Case: 10-31036 Document: 00511687535 Page: 1 Date Filed: 12/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 7, 2011
No. 10-31036 Lyle W. Cayce
Clerk
JULIE BLANCHARD; SOPHISTICATED SALADS, L.L.C., doing business as
Sophisticated Café & Grill; 10-40 DINER, INC.,
Plaintiffs - Appellants
v.
GREGORY J. LONERO, Individually and In his Official Capacity, as a Duly
Commissioned Law Enforcement Officer; MICHAEL PIZZOLATO,
Individually and In His Official Capacity as a Duly Commissioned Law
Enforcement Officer; MICHAEL MILLER, Detective; Individually and In His
Official Capacity as a Duly Commissioned Law Enforcement Officer;
NEWELL NORMAND,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-4023
Before BENAVIDES and PRADO, Circuit Judges, and ALVAREZ, District
Judge.*
PER CURIAM:**
*
District Judge of the Southern District of Texas, sitting by designation.
**
Pursuant to FIFTH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 FIFTH CIRCUIT RULE 47.5.4.
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No. 10-31036
In this action alleging unlawful searches and seizure, unlawful arrest, and
malicious prosecution, Plaintiffs-Appellants Julie Blanchard, Sophisticated
Salads, L.L.C. and 10-40 Diner, Inc. appeal the district court’s judgment
dismissing their claims against Defendants-Appellees Gregory Lonero, Michael
Pizzolato, Michael Miller, and Newell Normand. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Gregory Lonero and his wife, Eileen Lonero (together, the “Loneros”),
owned property located at 2309 David Drive in Metairie, Louisiana. At all
relevant times, Gregory Lonero was also employed as a deputy with the
Jefferson Parish Sheriff’s Office (“JPSO”). On or about April 6, 2005, Julie
Blanchard (“Blanchard”) and 10-40 Diner, Inc., of which Blanchard was sole
stockholder and representative, rented the property from the Loneros to operate
a restaurant.1 As part of the lease, Blanchard, “acknowledge[d] that the
restaurant equipment upon the leased premises belongs to the Lessor” and that
“[e]quipment [was] subject to Lessee’s use and obligations hereunder including,
but not limited to, Lessee’s obligation to insure, repair, make replacemnts [sic],
maintain and pay taxes related to such equipment.” The lease further provided
that “[s]hould Lessee begin to remove . . . equipment,” such event would
constitute a default under the lease.
At some point on or before July 30, 2005, after experiencing maintenance
problems with the property, Blanchard abandoned the leased property. On July
30, 2005, Sidney Aiavolasiti, an officer with the JPSO and a friend of Gregory
Lonero, called Mr. Lonero, who was out of town, and reported that he had seen
equipment being removed from the leased premises. Neither Mr. Lonero nor
1
Blanchard operated the restaurant on the property as Sophisticated Salads, LLC.
As there is no division of interest relevant to the Court’s analysis, the Plaintiffs-Appellants
are hereafter referred to simply as Blanchard.
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Mrs. Lonero gave Blanchard permission to remove the equipment from the property.
After learning from her husband that equipment had been removed from
the property, Eileen Lonero went to the property and observed through the
windows that the equipment was missing. Mr. Lonero also requested, through
his friend Aiavolasiti, that an officer go to the location. JPSO Deputy Michael
Pizzolato (“Pizzolato”) responded to that request and reported to the scene.
According to Deputy Pizzolato’s report, because Mrs. Lonero did not have access
to the building, a “complete inventory of the items missing could not be
documented,” and he was limited to conducting “a brief inspection of the exterior
of the business.” A locksmith was called, however, and an invoice, signed by
Deputy Pizzolato, indicates the locksmith opened the front door and installed
new locks on the building.
On August 1, 2005, the JPSO assigned Detective Michael Miller (“Miller”)
to the investigation. That same day, Detective Miller and Mr. Lonero visited the
property and completed a walk through. Mr. Lonero gave Detective Miller a
copy of the lease and a list of equipment that Mr. Lonero determined to be
missing from the property. Mr. Lonero told Detective Miller that, according to
the lease, the equipment was to stay inside the building. Mr. Lonero also told
Detective Miller that a fellow officer, who had dated Blanchard’s roommate,
Kathleen Frost (“Frost”), told Mr. Lonero that Blanchard had stored the missing
property at a storage center on Jefferson Highway.
On August 2, 2005, Detective Miller spoke with Frost. Frost informed
Miller that she saw Blanchard remove equipment from the property and place
the equipment in a storage unit. Detective Miller also spoke with Ahmad
Abulehawa (“Abulehawa”), the previous owner of 10-40 Diner, Inc., from whom
Blanchard had purchased the company in April 2005.2 Abulehawa had also
2
Detective Miller’s report and Abulehawa’s statement are both dated August 3, 2005.
Information obtained from Abulehawa is included in the warrant application, however, which
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operated 10-40 Diner, Inc. as a tenant in the Lonero’s building. Abulehawa
confirmed that the equipment in the building was owned by the Loneros, and
that he had informed Blanchard of that fact when he sold the company to her.
Thereafter, Detective Miller prepared an application for a search warrant
of Blanchard’s storage units. Detective Miller did not attach a copy of the lease
to the application. On August 2, 2005, a Louisiana State Judge signed the
search warrant.
That night, Detective Miller executed a search of the storage units and
found property that appeared to be the missing restaurant equipment. Detective
Miller then called Gregory Lonero and requested he come to the unit to identify
the property. Mr. Lonero arrived and assisted the officers in removing items
from the storage units. A JPSO employee photographed the property identified
by Mr. Lonero as belonging to him, and Detective Miller then released the
equipment to Mr. Lonero.
On August 3, 2005, Blanchard wrote to the Loneros, detailing the
problems she had encountered with the leased premises. The letter also stated:
I just had the opportunity to review the lease form and observed
that all of the restaurant equipment belongs to the lessor. I will
make arrangements to return. I was working under the impression
that all the restaurant equipment belonged to 10-40 diner [sic] Inc.
Gregory Lonero received the letter days after it was written, but had already
taken the equipment in the storage unit into his possession.
On August 4, 2005, Detective Miller prepared an affidavit for an
application for an arrest warrant for Blanchard for theft over $500 and illegal
possession of stolen things over $500. In the affidavit, Detective Miller stated:
Ms. Blanchard agreed to the terms of the lease, which stated that
she was to maintain and upkeep the equipment but that she did not
own it. It was determined that an estimated $15,000.00 worth of
was signed by the Judge on August 2, 2005.
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equipment ranging from ovens and stoves to napkins dispensers and
utensils had been removed from within the building without any
permission or authorization of the lessors.
Detective Miller did not attach a copy of the lease to the arrest warrant
application. A Justice of the Peace signed the arrest warrant on August 4, 2005.
That same day, Julie Sanders (“Sanders”), a friend of Blanchard, called
Detective Miller and advised him that Blanchard had been trying to get in touch
with her lawyer. Sanders told Detective Miller that Blanchard spoke with her
attorney, and had been advised to return all of the equipment she had removed
from the property. Detective Miller informed Sanders that an arrest warrant
had already issued and that the property had already been recovered, but that
a flat grill and char-grill had not been recovered. Detective Miller asked Sanders
to convey a request to Blanchard to return those items, and that he would allow
Blanchard to voluntarily surrender. The two grills were subsequently returned,
and released to Mr. Lonero, and, on August 15, 2005, Blanchard voluntarily
surrendered to Detective Miller.
Thereafter, criminal proceedings were instituted against Blanchard for
theft. On January 31, 2007, a state district judge granted Blanchard’s motion
to quash the bill of information, stating:
Now considering that the State’s responses to the accused’s Bill of
Particulars establish that at all relevant times the kitchen
equipment referred to in the outstanding Bill of Information was in
the lawful possession of the accused and was not the subject of a
theft; and after hearing the argument of counsel, the Court,
considering the law to be in favor of the accused, for the reasons
orally assigned; . . . the accused’s Motion to Quash is hereby
GRANTED . . . .
Thereafter, on July 31, 2006, Plaintiffs-Appellants filed the instant action
in the United States District Court against Mr. Lonero, Deputy Pizzolato,
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Detective Miller, and the JPSO sheriff, Newell Normand,3 alleging various state
and federal causes of action for unlawful search, unlawful arrest, malicious
prosecution, and conversion. On December 10, 2008, the district court granted
summary judgment on Plaintiffs-Appellants’ § 1983 claims against Defendants,
in their individual capacities, arising from the August 1, 2005 search of the
property. On May 28, 2009, the district court granted Defendants-Appellees’
motion for summary judgment on the remaining claims. Thereafter, on March
24, 2010, the district court, on motion to reconsider, reinstated Plaintiffs-
Appellants’ conversion claims against Detective Miller and Gregory Lonero.
Subsequently, the Plaintiffs-Appellants filed an unopposed motion to dismiss the
remaining conversion claim without prejudice, so that final judgment could be
entered and appeal could proceed. On October 14, 2010, after granting the
unopposed motion, the district court entered judgment for the Defendant-
Appellees, and this timely appeal followed.
STANDARD OF REVIEW
“We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Croft v. Governor of Tex., 562 F.3d 735, 742 (5th
Cir. 2009) (internal quotation marks omitted). Summary judgment should be
rendered if the record demonstrates that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “An issue is material if its resolution could affect the outcome
of the action.” Daniels v. Cty. of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001). “In deciding whether a fact issue has been created, the court must view
the facts and the inferences to be drawn therefrom in the light most favorable
to the nonmoving party.” Id. This Court may affirm summary judgment “on any
3
Sheriff Normand was added by amended pleading on January 7, 2008.
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grounds supported by the record.” Lifecare Hosps., Inc. v. Health Plus of La.,
Inc., 418 F.3d 436, 439 (5th Cir. 2005).
ANALYSIS
Blanchard appeals the district court’s grant of summary judgment with
regard to her claims that (1) Deputy Pizzolato and Gregory Lonero unlawfully
searched the property on June 30, 2005,4 (2) Detective Miller and Gregory
Lonero supplied false and misleading information to obtain a search warrant of
her storage units, (3) Detective Miller and Gregory Lonero supplied false and
misleading information to obtain an arrest warrant, (4) Detective Miller and
Gregory Lonero maliciously prosecuted her, and (5) Sheriff Normand was
vicariously liable for the unlawful arrest and malicious prosecution. The Court
addresses each purported error in turn.5
I. June 30, 2005 Search of the Property
Blanchard argues that a genuine dispute of material fact exists as to
whether Deputy Pizzolato, at Gregory Lonero’s urging, conducted a search of the
property on June 30, 2005. Deputy Pizzolato’s report states that only an
external search was conducted, which is confirmed by Eileen Lonero. Blanchard
maintains, however, that the existence of the locksmith invoice, which indicates
that the locksmith opened the front door, creates a genuine dispute about
whether Deputy Pizzolato entered and searched the property.
An individual’s right to claim protection from unreasonable search and
seizure “depends not upon a property right in the invaded place but upon
4
Blanchard does not appeal the district court’s grant of summary judgment with regard
to the August 1, 2005 search of the property.
5
As Blanchard makes no argument and cites no legal authority in support of her state
law claims for unlawful search and arrest, the Court deems Blanchard to have waived appeal
of the district court’s grant of summary judgment as to them. See United States v. Lopez-
Velasquez, 526 F.3d 804, 808 n.2 (5th Cir. 2008) (“Arguments inadequately briefed on appeal
are waived.”).
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whether the person who claims the protection of the [Fourth] Amendment has
a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439
U.S. 128, 143 (1978). To demonstrate a legitimate expectation of privacy, a
plaintiff must show that she has a subjective expectation of privacy in the
premises searched and that her expectation of privacy is one that society would
recognize as objectively legitimate. See United States v. Riazco, 91 F.3d 752, 754
(5th Cir. 1996). An individual, however, has no expectation of privacy over
abandoned property. See United States v. Edwards, 441 F.2d 749, 752 (5th Cir.
1971) (“It is clear that this personal right to Fourth Amendment protection of
property against search and seizure is lost when the property is abandoned.”)
The test of whether an individual abandoned property, for Fourth Amendment
purposes, is whether the individual “voluntarily discarded, left behind, or
otherwise relinquished his interest in the property in question so that he could
no longer retain a reasonable expectation of privacy with regard to it at the time
of the search.” United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en
banc). The intent of the individual to abandon the property “may be inferred
from words spoken, acts done, and other objective facts.” Id.
Here, putting aside the issue of an existence of a genuine dispute as to
whether Deputy Pizzolato entered the property, such a dispute is not material
in light of Blanchard’s abandonment of the property. By the time Deputy
Pizzolato arrived at the property, Blanchard had removed all of her belongings
and all of the equipment in the building, and departed. Moreover, she had
informed Mr. Lonero about her intent to close her business earlier that week.
Blanchard identifies no facts in the record to create a genuine dispute over
whether she “voluntarily discarded, left behind, or otherwise relinquished [her]
interest in the property.” See Colbert, 474 F.2d at 176.
Blanchard had no legitimate expectation of privacy under the Fourth
Amendment in the property at the time of the disputed search because, by that
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time, she had abandoned the property. Accordingly, summary judgment was
appropriate on her unlawful search claim.
II. August 2, 2005 Search of the Storage Units
Blanchard next argues the search of the storage units was unlawful
because Detective Miller made intentionally misleading statements and
excluded exculpatory information when preparing his affidavit to support a
search warrant of Blanchard’s storage units. In particular, Blanchard agues the
following statement materially misstated the terms of the lease:
Mr. Lonero pointed out that in the lease agreement dated April 6,
2005 signed by Greg Lonero and Eileen Lonero, Lessor, and Julie
Blanchard, 10-40 Diner, Lessee . . . , in the section titled Article 30
Miscellaneous Provisions Regarding Equipment that is part of the
building and is leased to the Lessee. The building and equipment
specified in the lease is owned by Mr. Lonero and is not to be
removed or replaced without expressed permission from Mr. Lonero.
Mr. Lonero then pointed out a two page list that details all of the
equipment that was part of the lease and that was now missing
from the interior of the business.
Blanchard contends Detective Miller’s statement falsely implies that the lease
states the equipment is part of the building, the equipment is not to be removed,
that the lease did not state that equipment is to be replaced by the Lessee, and
that the two page list of equipment was incorporated in and attached to the
lease. Blanchard further argues that by failing to provide the signing Judge
with a copy of the lease, Detective Miller excluded exculpatory evidence that
demonstrated Blanchard was in lawful possession of the equipment. Blanchard
further argues that Gregory Lonero is also liable for falsely characterizing the
lease when he discussed it with Detective Miller.
“[A]n officer may be liable when he ‘makes a false statement knowingly
and intentionally, or with reckless disregard for the truth’ that results in a
warrant being issued without probable cause . . . .” Michalik v. Herman, 422
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F.3d 252, 258 n.5 (5th Cir. 2005) (quoting Franks v. Delaware, 438 U.S. 154, 155-
56 (1978)). “[I]f an officer, in an affidavit supporting a warrant, makes a false
statement knowingly and intentionally, or with reckless disregard for the truth,
the false statements must be disregarded in determining whether the affidavit
is sufficient to support a finding of probable cause.” Hale v. Fish, 899 F.2d 390,
400 n.3 (5th Cir. 1990). “[A]n officer who makes knowing and intentional
omissions that result in a warrant being issued without probable cause” may
also be liable, if, when such exculpatory omissions are included, probable cause
is negated. See Michalik, 422 F.3d at 258 n.5 (emphasis omitted).
Here, Blanchard fails to raise a genuine dispute with regard to the
veracity of the majority of the statements she identifies. First, Detective Miller’s
statement that the equipment was “part of the building and leased to the
Lessee,” and that the equipment was “owned by Mr. Lonero and [was] not to be
removed . . . without expressed permission” are reasonable constructions of the
lease’s provisions that “restaurant equipment upon the leased premises belongs
to the Lessor” and that removal of the equipment would constitute a breach of
the lease. Second, Detective Miller’s statement regarding the two page list is not
fairly subject to the construction Blanchard advances. The item that is “part of
the lease” is not the list, but the equipment referenced therein. Blanchard’s
construction would render nonsensical Detective Miller’s statement that the
item “was now missing from the interior of the business”; it was the equipment
and not the list that was missing from the interior.
Consequently, the only statement contradicted by the lease is that the
Lessee requires Lonero’s permission to replace the equipment, as the lease
provides that it is the Lessee’s responsibility to make replacements.
Nevertheless, even assuming Detective Miller’s knowledge of this falsity may be
inferred from the fact that he was provided with the lease, the affidavit,
excluding that statement, would support a finding of probable cause. The
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affidavit set forth that: (1) the lease provided that the equipment was not owned
by the Lessee and that it was not to be removed from the property, (2) the former
tenant at the property confirmed this interpretation and had informed
Blanchard of such terms, (3) Gregory Lonero had received a call stating items
were being removed from the property, (4) Gregory Lonero stated he had not
given Blanchard permission to remove the equipment, (5) Eileen Lonero
observed all of the equipment had been removed from the property, (6) Gregory
Lonero walked Detective Miller through the property and identified what
equipment was missing, (7) Blanchard’s roommate, Frost, had seen Blanchard
and others removing equipment from the property, (8) Blanchard told Frost that
she put the removed equipment in the storage facility, and (9) the storage
facility’s manager confirmed that Blanchard leased various units at the location.
Such facts are sufficient to establish probable cause to search the storage units.
With regard to the lease, Blanchard fails to identify evidence that
Detective Miller’s omission was an attempt to knowingly and intentionally
exclude materially exculpatory evidence. The lease’s provision that Blanchard
may “use” the equipment can only be fairly read as a provision allowing
Blanchard to use the equipment on the property; it did not give Blanchard
permission to remove all of the property and place it in her personal storage
units, even after she intended to abandon the property and end her status as
lessee.6 Even assuming the lease could be so fairly read, there is no evidence to
6
Although the state criminal court quashed the Bill of Information, finding that, “the
State’s responses to the accused’s Bill of Particulars establish[ed] that at all relevant times
the kitchen equipment referred to in the outstanding Bill of Information was in the lawful
possession of the accused and was not subject of a theft,” it is unclear whether the state court
found that the lease’s “use” term provided Blanchard with legal right to remove the
equipment, that its ambiguous nature negated Blanchard’s mens rea, such that her possession
was not theft, or relied on some other portion of the Bill of Information. Neither the motion
to quash nor bill of information are included in the record, and so it is impossible to determine
what the state criminal court’s judgment was based on. Nevertheless, Blanchard identifies
no authority to show that the state court’s decision to quash the Bill of Information has any
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show Detective Miller so read the lease, and thus knowingly and intentionally
excluded that information by not attaching the lease to the warrant affidavit.
Lastly, Detective Miller disclosed, in the warrant affidavit, the existence of the
lease, Blanchard’s status as tenant, and that the equipment was leased to her.
Attaching to the affidavit the lease’s term allowing her to “use” the equipment
provides no additional material information bearing on probable cause.
Accordingly, Blanchard fails to identify a genuine dispute as to the
sufficiency of the warrant affidavit to establish probable cause.7
III. Unlawful Arrest
Blanchard similarly asserts the arrest warrant application was misleading
and contained material omissions because (1) the lease was not attached,
(2) Detective Miller did not interview Blanchard to determine her intent in
removing the equipment, and (3) it contained Gregory Lonero’s characterization
that the lease did not allow her to remove the equipment. Consequently,
Blanchard argues that there is a genuine dispute of material fact as to the
lawfulness of her arrest.
Like her claim with regard to the unlawful search of the storage units, to
prevail on her claim for unlawful arrest, Blanchard “must demonstrate that a
genuine issue of material fact exists as to whether the Appellees knowingly
provided false information to secure the arrest warrant[] or gave false
information in reckless disregard for the truth.” Freeman v. Cnty. of Bexar, 210
F.3d 550, 553 (5th Cir. 2000). The Court “disregard[s] any such properly
contested statements in the affidavits and then determine[s] whether the
warrant would establish probable cause without the allegedly false information.”
Id. Probable cause for an arrest exists “when the totality of the facts and
bearing on the existence of probable cause at the time of the search warrant application.
7
For this reason, the Court does not address the question of whether Lonero could be
liable under § 1983 for statements he made to Detective Miller when acting as landlord.
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circumstances within a police officer’s knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had committed or
was committing an offense.” Glenn v. Cty. of Tyler, 242 F.3d 307, 313 (5th Cir.
2001) (citation and quotation marks omitted). The Court examines the totality
of the circumstances to decide “whether there is a ‘fair probability’ that a crime
occurred.” United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (citations
omitted). A “requisite ‘fair probability’ is something more than a bare suspicion,
but need not reach the fifty percent mark.” Id.
With regard to the purported misstatements and omissions, as discussed
above, the lease was not materially exculpatory. Further, Lonero’s purported
misstatement is in fact a fair characterization of the lease terms. Lastly,
although Detective Miller could have called Blanchard to inquire as to her
motive, Blanchard identifies no authority requiring an officer to make such an
inquiry. Rather, “[s]pecific intent may be inferred from the circumstances.”
Thierry v. Lee, 48 F.3d 529 (5th Cir. 1995). The fact that Blanchard had
removed all of the equipment from the property, and that the equipment had
been found in Blanchard’s storage units, created a sufficient inference that
Blanchard removed the property with the intent to permanently deprive the
Loneros of it. See LA. REV. STAT. ANN. § 14:67 (providing element of theft is
taking with “intent to deprive the other permanently”).
Accordingly, Blanchard fails to show a genuine dispute of material fact as
to the lawfulness of her arrest.
IV. Malicious Prosecution
Blanchard argues that a genuine dispute of material fact exists as to her
malicious prosecution claim.8 Under Louisiana State law, a malicious
8
The district court erroneously concluded that the Fourth Amendment supports a claim
for malicious prosecution under § 1983 distinguishable from Blanchard’s claims for unlawful
search and arrest. See Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) (en banc)
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prosecution claim requires plaintiff show, among other things, an “absence of
probable cause.” See Robinson v. Goudchaux’s, 307 So. 2d 287, 289 (La. 1975).
“The existence of probable cause in any case depends upon the particular facts
of that case.” Culpepper v. Ballard, 344 So. 2d 110, 112 (La. App. Ct. 1977).
“Probable cause does not depend merely upon the actual facts of the case,
[however,] but upon the defendant’s honest belief of the facts when making
charges against the plaintiff.” Alston v. Stamps, 877 So. 2d 259, 262 (La. App.
Ct. 2004).
Blanchard’s sole contention is that the lease negated any probable cause
to prosecute her. As discussed above, however, the lease did not eliminate the
probable cause created by the facts honestly believed by Defendants.
Accordingly, Blanchard fails to identify a genuine issue of material fact as to her
malicious prosecution claim.
V. Claims Against Sheriff Normand
Lastly, Blanchard appeals the grant of summary judgment as to her claims
against JPSO Sheriff Normand. Blanchard’s sole argument is that the Sheriff
is vicariously liable for state law claims of malicious prosecution and false arrest.
Consequently, as the Court has affirmed the grant of summary judgment as to
those claims, summary judgment is also appropriate as to Blanchard’s claims
against Sheriff Normand.
CONCLUSION
For the reasons stated above, the judgment of the district court is
AFFIRMED.
(holding “causing charges to be filed without probable cause will not without more violate the
Constitution”; declining to use the term “malicious prosecution” where claim establishes a
Constitutional violation such as unlawful seizure); see also Cuadra v. Houston Indep. Sch.
Dist., 626 F.3d 808, 812-13 (5th Cir. 2010) (dismissing free-standing § 1983 malicious
prosecution claim). The district court nevertheless analyzed Blanchard’s claim under
Louisiana State law, and we construe Blanchard’s appeal as challenging the grant of summary
judgment on her state law malicious prosecution claim.
14