Darrel Thorn v. Melvin McGary , 684 F. App'x 430 ( 2017 )

Case: 16-30700 Document: 00513941460 Page: 1 Date Filed: 04/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30700 FILED
April 5, 2017
Lyle W. Cayce
DARREL THORN, Clerk
Plaintiff - Appellant
v.
MELVIN MCGARY, Police Officer; DAVID BRYANT, Police Officer;
PONCHATOULA POLICE DEPARTMENT; ROBERT F. ZABBIA, Mayor;
BRY LAYRISSON, Police Chief,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-127
Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
On January 26, 2014, Defendant–Appellee Melvin McGary, a police
officer with the Ponchatoula Police Department, was on patrol when he
observed a vehicle, which he later learned was occupied by Plaintiff–Appellant
Darrel Thorn and a female passenger, Monica LeBlanc, parked on the roadway
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-30700
of a winding two-lane street, in an area known for drug activity. 1 Officer
McGary initially thought the vehicle and its occupants were stranded and
pulled in behind the vehicle to obviate the danger facing its occupants and
other motorists. Officer McGary immediately became suspicious as he
observed Thorn moving about in the vehicle, in what Thorn admits was an
attempt to hide a prescription pill bottle containing four or five Xanax pills
that were not prescribed for him. As Officer McGary and Thorn spoke in the
doorway of Thorn’s vehicle, Officer David Bryant arrived in response to Officer
McGary’s call to dispatch. Both officers were familiar with Thorn through
previous encounters. Officers Bryant and McGary then observed Thorn
manipulating the waistband of his pants and the pill bottle fall to the ground.
After Thorn was unable to produce a prescription for the Xanax in the bottle,
he was placed under arrest for possession of a schedule IV controlled dangerous
substance without a valid prescription, a felony under Louisiana law. See La.
Stat. Ann. § 40:969. Thorn was also ticketed for parking in the roadway.
Thorn’s arrest was reported (along with other arrests) in the local newspaper.
After the ticket was dismissed as part of a plea deal and the drug charge
was rejected by the district attorney, Thorn, proceeding pro se, filed the instant
suit against Officers McGary and Bryant, as well as the Ponchatoula Police
Department; the Mayor of Ponchatoula, Robert F. Zabbia; and the chief of the
Ponchatoula Police Department, Bry Layrisson (collectively, Defendants). In
relevant part, Thorn asserted a claim against Defendants under 42
U.S.C. § 1983 for a violation of the Fourth Amendment in connection with
McGary’s initial stop and his subsequent arrest, as well as a state law claim
for defamation of character in connection with the newspaper report of his
As discussed further below, these facts have been deemed admitted for purposes of
1
summary judgment pursuant to the district court’s local rules.
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arrest. 2 Thorn attached (among other things) an 11-sentence affidavit from
LeBlanc to his complaint.
Defendants moved for summary judgment. In accordance with the
district court’s local rules, Defendants’ motion included “a separate and concise
statement of the material facts which [they] contend[] present no genuine
issue.” E.D. La. Civ. R. 56.1. Thorn filed an opposition to the motion for
summary judgment but failed to include his own statement of facts, as required
by the district court’s local rules. E.D. La. Civ. R. 56.2. Thorn’s opposition
argued that Defendants should be denied qualified immunity because he
alleged his constitutional rights were violated. The only evidence Thorn
offered in support of his opposition was the affidavit from LeBlanc attached to
his complaint, which Defendants moved to strike after LeBlanc failed to
respond to Defendants’ requests for a deposition and Thorn was unable to
provide a deposition date for her. The district court granted Defendants’
motion to strike, as well as their motion for summary judgment. Based on
Thorn’s failure to present a controverting statement of facts, the district court,
pursuant to its local rules, “deemed admitted” the material facts in Defendants’
statement of facts for purposes of ruling on Defendants’ motion. E.D. La. Civ.
R. 56.2. Thorn timely appealed.
2 Although the district court liberally construed Thorn’s complaint to include several
other claims, our review is limited to the claims identified above. We liberally construe briefs
of pro se litigants; however, pro se litigants must still comply with the principles of appellate
procedure, including the principle that arguments must be briefed to be preserved. See Fed.
R. App. P. 28; see also Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). “‘Conclusory
briefing’ that ‘fails to address the . . . substantive reasons articulated by the [lower court]’ is
inadequate.” Legrand v. Gillman, 576 F. App’x 334, 337 (5th Cir. 2014) (per curiam)
(alteration and omission in original) (quoting Stevens v. Hayes, 535 F. App’x. 358, 359 (5th
Cir. 2013) (per curiam)). Here, Thorn has not advanced any argument on appeal in support
of any other claims, much less addressed the substantive reasons articulated by the district
court for granting summary judgment on the other claims. Thus, Thorn has failed to preserve
any argument concerning claims beyond those we address.
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On appeal, Thorn contends that the district court erred in holding his
opposition to Defendants’ motion for summary judgment to the same standard
as one drafted by an attorney. Thorn is correct that pleadings of pro se
litigants, including oppositions to motions for summary judgment, must be
construed liberally and reviewed less stringently than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); McCrae v. Hankins,
720 F.2d 863, 865 (5th Cir. 1983), abrogated on other grounds by Hudson v.
Palmer, 468 U.S. 517, 531–33 (1984), as recognized in Augustine v. Doe, 740
F.2d 322, 328 & n.10 (5th Cir. 1984). However, “pro se parties must still
comply with the rules of procedure and make arguments capable of
withstanding summary judgment.” Ogbodiegwu v. Wackenhut Corrs. Corp.,
202 F.3d 265, 1999 WL 1131884, at *2 (5th Cir. 1999) (per curiam)
(unpublished); see also Hulsey v. Tex., 929 F.2d 168, 171 (5th Cir. 1991) (“The
right of self-representation does not exempt a party from compliance with
relevant rules of procedural and substantive law.” (quoting Birl v. Estelle, 660
F.2d 592, 593 (5th Cir. 1981) (per curiam))). As we have explained, “[t]he notice
afforded by the Rules of Civil Procedure and the local rules” is “sufficient” to
advise pro se litigants of their burden in opposing summary judgment; no
“particularized additional notice” for pro se litigants is required. Martin v.
Harrison Cty. Jail, 975 F.2d 192, 193 (5th Cir. 1992) (per curiam).
Here, the district court recognized that it was required to—and did in
fact—liberally construe Thorn’s complaint and opposition. But, as the district
court also recognized, Thorn was not excused from complying with the Federal
Rules of Civil Procedure, the district court’s local rules, or most significantly,
the tenet that he must identify evidence in support of his claims. The district
court’s local rules require an opposition to summary judgment to “include a
separate and concise statement of the material facts which the opponent
contends present a genuine issue.” E.D. La. Civ. R. 56.2. If the opposition fails
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to provide such a statement, “[a]ll material facts in the moving party’s
statement will be deemed admitted, for purposes of [summary judgment].” Id.
Thorn was not excused from complying with this requirement by simple virtue
of his pro se status.
Thorn next contends that the district court erred in striking LeBlanc’s
affidavit based on his failure to better assist Defendants in their (unsuccessful)
attempts to take LeBlanc’s deposition. We generally review a motion to strike
for abuse of discretion, see Cambridge Toxicology Grp., Inc. v. Exnicios, 495
F.3d 169, 178 (5th Cir. 2007), but need not decide whether the district court
abused its discretion in this case. As a result of Thorn’s failure to follow the
district court’s summary judgment procedures, the material facts in
Defendants’ motion for summary judgment were “deemed admitted” for
purposes of ruling on the motion. E.D. La. Civ. R. 56.2. Thorn’s pro se status,
as discussed above, did not excuse him from complying with the district court’s
local rules, and under the circumstances, they were properly enforced by the
district court against him. See Martin, 975 F.2d at 193. Thus, regardless of
whether the LeBlanc affidavit was properly stricken, the relevant facts for
analyzing summary judgment are the uncontroverted ones in Defendants’
motion. 3
Thorn further contends that the district court erred in granting Officers
McGary and Bryant qualified immunity from his § 1983 claim. We review a
3 Indeed, Thorn has failed to demonstrate any specific harm resulting from the district
court’s decision to strike the LeBlanc affidavit. The affidavit is both vague and conclusory,
and “without more, a vague or conclusory affidavit is insufficient to create a genuine issue of
material fact in the face of conflicting probative evidence.” Kariuki v. Tarango, 709 F.3d 495,
505 (5th Cir. 2013). Specifically, the affidavit concludes McGary had “no reason” to take the
actions he did but offers only a vague description of LeBlanc’s observations in support. In
fact, the affidavit’s description is so vague that it is difficult to discern whether LeBlanc even
challenges Officer McGary’s testimony that Thorn’s car was parked in the roadway and
Officers McGary and Bryant’s testimony that the pill bottle containing the Xanax fell from
Thorn’s pants independent of any pat down.
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grant of summary judgment on the issue of qualified immunity de novo. Curtis
v. Anthony, 710 F.3d 587, 593 (5th Cir. 2013) (per curiam). “A public official is
entitled to qualified immunity unless the plaintiff demonstrates that (1) the
defendant violated the plaintiff’s constitutional rights and (2) the defendant’s
actions were objectively unreasonable in light of clearly established law at the
time of the violation.” Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
According to Thorn, the dismissal of his ticket as part of a plea deal and the
district attorney’s rejection of his drug charge demonstrate that Officer
McGary’s initial stop and Officers McGary and Bryant’s subsequent arrest
lacked foundation and, thus, demonstrate that his Fourth Amendment rights
were violated. 4 We disagree.
According to the facts deemed admitted, Thorn’s vehicle was parked in
the roadway of a winding two-lane street, which an officer would reasonably
view as posing a danger to both the vehicle’s occupants and other motorists
and as constituting a traffic violation. Therefore, Officer McGary’s initial stop
did not violate the Fourth Amendment. See United States v. Rideau, 969 F.2d
1572, 1574 (5th Cir. 1992) (en banc) (holding that a stop based on reasonable
suspicion and serving a community caretaking function did not violate the
Fourth Amendment). Neither did Officers McGary and Bryant’s subsequent
arrest of Thorn. See Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) (per
curiam) (holding that warrantless arrest based on probable cause did not
violate the Fourth Amendment). Based on the totality of the circumstances
4 Thorn also appears to argue that liability for these alleged constitutional violations
attaches to the remaining Defendants under § 1983, ostensibly on a theory of respondeat
superior. The doctrine of respondeat superior does not apply in § 1983 cases, and Thorn has
failed to provide any “proof of 1) a policymaker; 2) an official policy; 3) and a violation of
constitutional rights whose ‘moving force’ is the policy or custom,” which could support a
traditional municipal liability theory. Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247
(5th Cir. 2003). Accordingly, the district court properly granted summary judgment on
Thorn’s § 1983 claim against the remaining Defendants.
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known to Officers McGary and Bryant—including their prior experience with
Thorn, Thorn’s furtive movements as Officer McGary approached Thorn’s
vehicle, the unlabeled prescription bottle containing Xanax falling from
Thorn’s pants, and Thorn’s inability to produce a valid prescription for
Xanax—there was probable cause to conclude that Thorn violated La. Stat.
Ann. § 40:969, et seq. The dismissal of the ticket and refusal to prosecute the
drug charge do not compel the conclusion that Thorn urges upon us that a
Fourth Amendment violation occurred. In fact, neither one necessarily
demonstrates that Thorn was innocent. Rather, they merely represent
exercises of prosecutorial discretion. Because Thorn has failed to satisfy the
first-prong of the qualified immunity analysis—a violation of his Fourth
Amendment rights—Defendants were properly granted qualified immunity. 5
Thorn finally argues that the district court erred in granting summary
judgment on his defamation of character claim. According to Thorn, the
district court failed to account for the fact that the newspaper received the
information about his arrest from “police blotters.” Thorn, however, failed to
present this argument to the district court or provide any evidence to support
it. Moreover, even if he had, the fact remains that Thorn was arrested. Thus,
he has failed to demonstrate that the information provided by the police
5 Thorn also seems to suggest that his Fourth Amendment rights were violated
because Officer McGary’s initial stop and Thorn’s subsequent arrest appear to have occurred
a short distance outside of Ponchatoula’s city limits (on a stretch of road Officer McGary had
always been given authority to patrol because curves in the road caused only small portions
to leave city limits). Thorn, however, did not raise this argument in opposition to Defendants’
motion for summary judgment, so the argument is waived. See Yohey, 985 F.2d at 225, 227;
see also Hensley v. Wal-Mart Stores, Inc., 290 F. App’x 742, 743–44 (5th Cir. 2008) (per
curiam). Moreover, even if the argument were not waived, Thorn has not cited any authority
clearly establishing that a stop or arrest under the circumstances violates the Fourth
Amendment. Accordingly, he has failed to show that he could, in any event, satisfy the second
prong of the qualified immunity analysis. See Porter, 659 F.3d at 445 (recognizing that
qualified immunity shields officials unless the plaintiff demonstrates the defendant violated
a constitutional right that was “clearly established”).
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blotters was false, let alone demonstrate the other elements required for a
viable defamation claim under Louisiana state law. See Trentecosta v. Beck,
703 So. 2d 552, 559 (La. 1997) (“Four elements are necessary to establish a
defamation cause of action: (1) a false and defamatory statement concerning
another; (2) an unprivileged publication to a third party; (3) fault (negligence
or greater) on the part of the publisher; and (4) resulting injury.”); see also Lee
v. Pennington, 830 So. 2d 1037, 1045 (La. Ct. App. 2002) (concluding report of
the plaintiff’s arrest was neither false nor defamatory). Indeed, we have
already concluded that there was probable cause for Thorn’s arrest, and under
these circumstances, Louisiana law affords police officers a qualified privilege
against defamation actions. See Trentecosta, 703 So. 2d at 562–64 (holding
that police officers have a qualified privilege against defamation claims for
“report[ing] the fact that a person was arrested and the charges for which the
person is being held”); see also Roche v. Aetna Cas. & Sur. Co., 303 So. 2d 888,
890 (La. Ct. App. 1974) (affirming dismissal of defamation claim where officer’s
arrest was supported by probable cause). The district court, therefore, did not
err in granting summary judgment on Thorn’s defamation of character claim.
In sum, Thorn has failed to present competent evidence or argument to
withstand summary judgment on any of his claims against Defendants.
Accordingly, the judgment of the district court is AFFIRMED.
8