Piazza v. Mayne

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