Morin v. Caire

United States Court of Appeals,

Fifth Circuit.

No. 95-30308

Summary Calendar.

Ralph MORIN; Larry Keith Young, Plaintiffs-Appellees,

v.

Randy CAIRE, Defendant-Appellant

and

City of Slidell, Defendant.

March 7, 1996.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before WISDOM, DAVIS and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

Defendant/appellant, Randy Caire, appeals the district court's

denial of his Rule 12(b)(6) motion to dismiss a civil rights claim

filed against him by plaintiffs/appellees, Ralph Morin and Larry

Keith Young. For the reasons that follow, we REVERSE.

I. Facts and Background

On November 6, 1991, defendant/appellant, Randy Caire

("defendant" or "Caire"), a police officer for defendant City of

Slidell, Louisiana ("City"), arrested the plaintiffs/appellees,

Ralph Morin and Larry Keith Young ("plaintiffs" or "Morin" and

"Young"), for the murder of Morin's business partner, Leo Harp, in

September 1991. Prior to arresting the plaintiffs, Caire

interrogated Brian Mouring, an individual who was linked to a gun

found near the murder site. Mouring told Caire that he had sold

1
the gun to his uncle, plaintiff Young, who had told Mouring that he

was going to use the gun to kill Leo Harp in a murder for hire plot

originated by plaintiff Morin. Based on this information, Caire

obtained a warrant for the plaintiffs' arrests, and took them into

custody. Caire also testified before a grand jury regarding his

investigation of the crime, and the grand jury issued indictments

for murder against both plaintiffs.

Morin and Young remained in jail awaiting trial from the time

of their arrests in November 1991, until August 1993, when the

charges against them were dropped for undetermined reasons. After

their release, Morin and Young filed this civil rights action

against Caire and the City seeking damages of two million dollars

for their allegedly improper incarceration. Specifically, the suit

alleges violations of the plaintiffs' Fourth, Fifth, Eighth, and

Fourteenth Amendment rights, and further asserts Louisiana state

law tort claims of false imprisonment, malicious prosecution, and

abuse of process. The defendants filed a Rule 12(b)(6) Motion to

Dismiss that argued: 1) the plaintiffs' complaint failed to state

a constitutional claim upon which relief could be granted; 2) if

the complaint did state constitutional claims, then defendant Caire

is immune from suit in them; and 3) there is no basis on which the

state law claims could proceed. The district court summarily

denied the 12(b)(6) motion. Defendant Randy Caire now appeals that

dismissal.

II. Discussion

A. Appellate Jurisdiction and Standard of Review:

2
 Ordinarily, this court does not have jurisdiction over the

denial of a Rule 12(b)(6) motion to dismiss for no cause of action,

because such an order is interlocutory in nature.1 The Supreme

Court has held, however, that orders denying substantial claims of

qualified immunity are immediately appealable under the collateral

order doctrine.2 Because the defendants' motion to dismiss asserts

a qualified immunity defense to the plaintiffs' constitutional

claims, we may hear the appeal on the denial of that portion of the

motion.3

Although the immunity exception does not apply to the

decision to deny the plaintiffs' state law claims, we also may have

jurisdiction to review that decision. In the interest of judicial

economy, this court may exercise its discretion to consider under

pendant appellate jurisdiction claims that are closely related to

the issue properly before us.4 Although we generally exercise this

1
Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.) cert.
denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985).
2
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985); Wicks v. Mississippi State Employment
Services, 41 F.3d 991, 994 (5th Cir.1995).
3
We note that the district court failed to provide any
reasons for its denial of the defendants' motion. District
courts should state for the record the reasons for denying
immunity. See Fed.R.Civ.P. 41(b), 52(a); Schaper v. City of
Huntsville, 813 F.2d 709, 713 (5th Cir.1987). We assume from the
district court's form dismissal, however, that it found that
disputed issues of material fact existed, which, if true, would
constitute violations of clearly established law by Caire. Id.
4
Walter Fuller Aircraft Sales v. Rep. of Philippines, 965
F.2d 1375, 1387 (5th Cir.1992).

3
power with caution,5 it is appropriate for us to do so in this

situation, for if we were to refuse to exercise jurisdiction over

the state law claims, our refusal would defeat the principal

purpose of allowing an appeal of immunity issues before a

government employee is forced to go to trial.6

A district court's ruling on a Rule 12(b)(6) motion is

subject to de novo review.7 The motion may be granted "only if it

appears that no relief could be granted under any set of facts that

could be proved consistent with the allegations".8 The review of

such a motion is limited to the plaintiffs' complaint.9

B. The Plaintiffs' Constitutional Claims:

Public officials are entitled to qualified immunity from suit

under § 1983 unless it is shown by specific allegations that the

officials violated clearly established law.10 To determine if

qualified immunity applies, this court follows a two-step process.

First, we determine if the plaintiff has stated a violation of a

5
Id.
6
Mitchell, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86
L.Ed.2d 411 (1985) ("the entitlement is an immunity from suit
rather than a mere defense to liability; and like absolute
immunity, it is effectively lost if the case is erroneously
permitted to go to trial."); see also, Kelly v. Curtis, 21 F.3d
1544, 1555-56 (11th Cir.1994).
7
Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 619
(5th Cir.1992).
8
Id.
9
Id.
10
Schultea v. Wood ["Schultea I "], 27 F.3d 1112, 1115 (5th
Cir.1994), aff'd in part, 47 F.3d 1427 (en banc) (5th Cir.1995).

4
clearly established constitutional right.11 If so, we next examine

the reasonableness of the defendant's conduct.12

Caire first argues that the district court should have

dismissed the plaintiffs' claims arising under the Fifth, Eighth

and Fourteenth Amendments because these constitutional provisions

do not protect individuals from the types of harm alleged by the

plaintiffs. We agree. The protections of the Eighth Amendment

against cruel and unusual punishment are limited in scope to

convicted prisoners and do not apply to pretrial detainees such as

the plaintiffs.13 Similarly, the Fifth Amendment applies only to

the actions of the federal government, and not to the actions of a

municipal government as in the present case.14 And, although the

Fourteenth Amendment's due process clause does apply to

municipalities, the plaintiff has not pleaded any allegations upon

which a procedural due process claim could be based, and the U.S.

Supreme Court has recently determined that there is no substantive

due process right to be free from criminal prosecution except upon

probable cause.15 Thus, the plaintiffs' only remaining

constitutional claims are premised on the protections of the Fourth

11
Schultea I, at 1115.
12
Id.
13
See, Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97
S.Ct. 1401, 1412, n. 40, 51 L.Ed.2d 711 (1977); Bell v. Wolfish,
441 U.S. 520, 535, n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d
447 (1979).
14
Richard v. Hinson, 70 F.3d 415, 416 (5th Cir.1995).
15
Albright v. Oliver, --- U.S. ----, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994).

5
Amendment against unreasonable search and seizure.16

Specifically, the plaintiffs allege that Caire violated their

Fourth Amendment rights by engaging in the following activities:

1) relying on false evidence; 2) relying on an unreliable source;

and 3) participating in and furthering the plaintiffs' extended

incarceration in an effort to coerce admissions of guilt.17 Caire

argues that the plaintiffs' complaint fails to state sufficient

facts regarding these allegations to support a constitutional

claim. We agree.

In a recent en banc opinion, Schultea v. Wood,18 this court

determined that when a plaintiff sues a public official under §

1983, the district court must insist on heightened pleading by the

plaintiff.19 The court must first demand that a plaintiff must file

"a short and plain statement of his complaint, a complaint that

16
In fact, plaintiffs concede that the district court should
have dismissed their constitutional claims that do not arise
under the fourth amendment. The plaintiffs' brief states,
"Technically it is correct that the district court probably
should have dismissed portions of the complaint, and should have
given reasons for judgment. However, it seems clear that the
Trial court would have proceeded to trial on petitioners [sic]
4th Amendment constitutional claims and State law claims ... The
record below makes it clear that this case boils down to a 4th
Amendment claim for unreasonable search and seizure, and various
state law tort claims." Brief of the Appellee at 11.
17
The plaintiffs' complaint also includes allegations that
Caire made "false statements under oath," and "made false or
misleading statements in an extrajudicial context." In their
reply brief, however, the plaintiffs concede that they have
abandoned the false testimony claims for want of proof. Brief of
the Appellee at 10.
18
Schultea v. Wood ["Schultea II "], 47 F.3d 1427 (5th
Cir.1995) (en banc).
19
Id. at 1433.

6
rests on more than conclusions alone."20 Next, the court may, in

its own discretion, insist that the plaintiff file a reply tailored

to an answer pleading the defense of qualified immunity.21 The

court's discretion not to order such a reply is very narrow,

however, when greater detail might assist.22

In this case, the initial complaint pleads only conclusions.

It asserts that Caire "knew, or should have known, that the

statements of Bryan Moring [sic] were false," without pleading

factual allegations indicating that Mouring's statement are indeed

false, or facts indicating that no reasonable police officer would

have believed Mouring's statement. The complaint also alleges that

Caire "knew that the evidence assembled against Morin and Young was

not sufficient to take to trial," yet fails to state facts

supporting this conclusion. This omission is particularly severe

in a case such as this in which a grand jury separately determined

that there was sufficient evidence to warrant a trial. Similarly,

the plaintiffs' allegation that Caire knew the evidence "was not

sufficient to furnish probable cause or prosecute [the

plaintiffs]," is inadequate when Caire obtained an arrest warrant

prior to arresting the plaintiffs. Finally, the mere allegation

that "the progress of the prosecution of [the plaintiffs] was

delayed by Randy Caire, and by the St. Tammany Parish District

Attorney's office due to their knowledge of the shortcomings of the

20
Id. at 1433.
21
Id. at 1434.
22
Id.

7
case against [the plaintiffs]," requires more specific allegations

of how the defendant himself unconstitutionally caused the

plaintiffs' continued incarceration where he had obtained a warrant

and a grand jury indictment was issued.

In spite of these factual shortcomings, the district court

failed to order the plaintiff to file either a statement of facts,

or a reply to the defendants' assertion of qualified immunity.

This is clear error.23 Ordinarily this situation would require a

remand to the district court to allow the plaintiffs an opportunity

to amend their pleadings.24 Such a remand is not always required,

however. If the individual circumstances of the case indicate that

the plaintiffs have pleaded their best case, there is no need to

remand for further proceedings.25 In the present situation, a

remand would not be useful.

Although the plaintiffs' complaint is devoid of factual

allegations, both the plaintiffs' original response to the

defendants' 12(b)(6) motion to dismiss, and the plaintiffs'

appellate brief make it clear that the plaintiffs are basing their

entire case on allegations that Caire did not conduct a thorough

investigation prior to obtaining a warrant for the plaintiffs'

arrest. They contend that Caire omitted material statements and

made false and misleading statements in his affidavit to obtain an

23
Id.
24
Schultea I, 27 F.3d at 1118.
25
See, Schultea I, 27 F.3d at 1118.

8
arrest warrant for the plaintiffs.26 Specifically, they allege

Caire made the following omissions from the warrant affidavit: 1)

that Caire did not thoroughly investigate the veracity of Mouring's

statement before seeking a warrant for the plaintiffs' arrest; 2)

that Mouring gave two different stories as to how he disposed of

the gun; 3) that at the time the affidavit was prepared, the

police had no proof that Mouring's gun was the murder weapon; and

4) there was insufficient proof regarding Mouring's veracity.27

In order to constitute a constitutional violation sufficient

to overcome the qualified immunity of an arresting officer, the

material misstatements and omissions in the warrant affidavit must

be of "such character that no reasonable official would have

submitted it to a magistrate."28 Furthermore, specific omitted

facts must be "clearly critical" to a finding of probable cause.29

Caire's alleged omissions, even if proven true, would not survive

this test.

First, both "versions" of Mouring's story included Mouring

selling the gun to plaintiff Young, and the only discrepancy

between the two stories is that Mouring initially indicated that he

did not know why Young bought the gun, but later amended his

statement to say that "Young bought the gun to commit murder for

26
See Brief of the Appellee at 11-14.
27
Id.
28
Hale v. Fish, 899 F.2d 390, 402 (5th Cir.1990).
29
Id. at 400.

9
hire."30 The second explanation told by Mouring does not contradict

his first story, so much as elaborate on it. This discrepancy is

not critical to the probable cause determination. Next, Caire's

affidavit does not falsely represent that he had conducted any

further investigation of Mouring's statement, or that the gun at

issue had been determined to be the murder weapon. There is no

misstatement of facts, just arguable omissions. Yet, these

omissions do not negate the finding of probable cause, and are not

"clearly critical" to a finding of probable cause. The plaintiffs

also argue that Caire's affidavit did not include sufficient

information regarding Mouring's veracity. They contend that

because Mouring was the individual traced to the stolen gun, his

"motivation to lie was clearly present when information is given

tending to exculpate that person and inculpate others." Plaintiffs

also assert that because Mouring told facts "only known by the

perpetrator," a logical inference certainly arises that "that man

was the perpetrator."

Although it is true that a warrant affidavit must include

30
The plaintiffs offer the following version of the
interrogation:

"12:44 a.m., November 5, 1991: Caire obtains a taped
statement from Bryan Mouring at a police station in
Mississippi in which Mouring tells him that Larry Keith
Young bought the gun Mouring had stolen in Louisiana;
that the purchase was for unknown purposes; that later
Larry Keith Young told him that the gun was used by him
to commit the murder of a "man named Leo. He did not
say his last name"; that the murder was paid for by
Ralph Morin, a drug dealer; that Young was paid
$5,000.00; and that Young would have been driving a
white Cadillac or a brown van."

10
information regarding an informant's veracity in cases in which the

informant has an incentive to lie,31 Caire's affidavit clearly

states both that the alleged murder weapon was traced to Mouring,

and also that Mouring related "facts that could have only been

known to the perpetrator."32 Thus, the issuing magistrate had the

necessary information, and was free to make the suggested

inferences regarding Mouring's veracity. The plaintiffs'

allegations regarding Caire's warrant affidavit simply do not rise

to the level that no reasonable official would have submitted the

affidavit to a magistrate.

C. Plaintiffs' Louisiana Tort Claims:

Finally, we address the sufficiency of the plaintiffs'

Louisiana tort law claims of false imprisonment, malicious

prosecution and abuse of process. The Louisiana torts of false

arrest and malicious prosecution both require malice as an

essential element.33 Similarly, the tort of abuse of process

requires an "ulterior motive."34 Malice may be inferred from a lack

of probable cause, or from a finding that the defendant acted

recklessly.35

31
Hale, 899 F.2d at 399.
32
Record Excerpts of the Appellant, Tab "E".
33
Miller v. East Baton Rouge Parish Sheriff's Dep't., 511
So.2d 446, 452 (La.1987).
34
Duboue v. City of New Orleans, 909 F.2d 129 (5th
Cir.1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1314, 113
L.Ed.2d 247 (1991).
35
Miller, 511 So.2d at 453.

11
 Caire argues that the plaintiffs did not plead sufficient

factual allegations regarding these claims. The Louisiana tort

claims do not arise under § 1983 however, and thus are not subject

to heightened pleading requirements. Instead, the plaintiff need

only satisfy general federal "notice pleading" regarding these

claims. The allegations in the complaint are sufficient to meet

this low threshold. Thus, they survive a 12(b)(6) motion to

dismiss.

As discussed above, however, both the plaintiffs' motion in

opposition to the defendant's 12(b)(6) motion, and their appellate

brief make repeated references to facts admitted or produced in

discovery. If on asserting a Rule 12(b)(6) motion, matters outside

the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of

as provided in Rule 56.36 In this case, the district court did not

exclude the evidence relied on by the plaintiffs. Therefore, we

may treat the defendant's 12(b)(6) motion as a Rule 56 motion for

summary judgment.

Summary judgment is proper if the "pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law."37

Looking at the record as a whole, the plaintiffs present no

36
F.R.C.P. 12(B).
37
Fed.R.Civ.P. 56(c).

12
factual evidence indicating either malice or an ulterior motive on

the part of Caire. The plaintiffs' only evidence regarding a lack

of probable cause is the same evidence as they presented to support

the contention that Caire made material misrepresentations and

omissions on his warrant affidavit. This evidence is insufficient

to justify an inference of any malice or ulterior motive on the

part of Caire. Therefore, we find that there is no genuine issue

of material fact regarding the elements of malice and ulterior

motive in the plaintiffs' Louisiana tort claims. We must dismiss

these claims.

III. Conclusion

For the reasons outlined above, we REVERSE the district court

denial of the defendant's Rule 12(b)(6) motion, and DISMISS the

claims of Ralph Morin and Larry Young against Randy Caire.

13