Tom Heaney v. Christopher Roberts , 846 F.3d 795 ( 2017 )

Case: 15-31088 Document: 00513844527 Page: 1 Date Filed: 01/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-31088 FILED
January 23, 2017
Lyle W. Cayce
TOM HEANEY,
Clerk
Plaintiff–Appellee,
v.
CHRISTOPHER L. ROBERTS; PARISH OF JEFFERSON,
Defendants–Appellants.
Cons w/16-30189
TOM HEANEY,
Plaintiff–Appellant–Cross-Appellee,
v.
CHRISTOPHER L. ROBERTS,
Defendant–Appellee,
RONALD BLACK,
Defendant–Appellee–Cross-Appellant,
CITY OF GRETNA,
Defendant–Cross Appellant.
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Appeals from the United States District Court
for the Eastern District of Louisiana
Before CLEMENT, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
This case involves consolidated appeals by multiple parties. Plaintiff
Tom Heaney was silenced and then ejected at a city council meeting in Gretna,
Louisiana. He alleged that the presiding official at the meeting, Defendant
Christopher Roberts, violated his rights under the First and Fourth
Amendments of the Constitution as well as under the Louisiana state
constitution. Heaney also argued that Defendant Ronald Black, the Gretna
police officer who removed him from the meeting, violated those same
constitutional rights as well as state tort law. Finally, Heaney alleged that the
Parish of Jefferson (“Jefferson Parish”) and the City of Gretna were vicariously
liable as the employers of Roberts and Black. The district court granted in part
and denied in part the Defendants’ motions for summary judgment. Because
there is a genuine issue of material fact as to whether Roberts is entitled to
qualified immunity on the First Amendment claim, we DISMISS his
interlocutory appeal. We also DISMISS Black’s cross-appeal for lack of
appellate jurisdiction. We AFFIRM the district court’s grant of summary
judgment as to the other claims.
I. BACKGROUND
A. Factual Background
On September 18, 2013, Tom Heaney attended a regularly scheduled
Jefferson Parish council meeting in Gretna, Louisiana. In accordance with
council rules, Heaney registered to speak during the time allowed for public
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comment. The rules allowed each registered speaker five minutes to address
the council. Heaney wished to speak about the legality of council members
accepting campaign contributions from contractors who had applied for and
received no-bid contracts from the council. Councilman Christopher Roberts
was presiding as chair of the meeting.
When Heaney had been speaking for about three minutes, he was
interrupted by Roberts, who asked if he would yield the floor to the Parish
Attorney, Ms. Foshee. Heaney believed that he would receive the balance of his
time after Ms. Foshee finished speaking given that a prior speaker had been
given the balance of her time after yielding. Ms. Foshee spoke for several
minutes, expressing her opinion that the council’s actions were legal. After she
finished speaking, Heaney asked Roberts, “May I have my time back?” and
Roberts responded, “Yes, how much time do we have?” Heaney then expressed
his wish to challenge the Parish Attorney’s opinion. At that point, he was
interrupted again by Roberts:
Roberts: Let me, we’ve had this conversation before, ok?
Heaney: Are you trying to stop me from speaking?
Roberts: Well you yielded and I do have the floor . . . so . . . I’m not
going to turn this into a circus, ok? If you don’t believe what Ms.
Foshee’s comments were—
Heaney: I—
Roberts: Let me finish. Last I checked, Ms. Foshee had a law degree
hanging on the wall in her office. If you’re challenging whether or not
what she’s saying to be accurate or not, you can go right to the elevator
downstairs. The Clerk of Court’s office is there, and you’re welcome to
file suit. This is not the forum for you to challenge the opinion of the
parish attorney, ok?
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Heaney: Now if I can be able to speak—
Roberts: No, let me finish. Let me finish. Once again, I’m going to ask
you, are you an attorney?
Heaney: I don’t have to be an attorney to read and comprehend a
decision—
Roberts: But I’m not going to sit here and have you berate the parish
attorney.
Heaney: I have a decision. I have a decision by HUD that contradicts
what Ms. Foshee says—
Roberts: Sir, ok. Your time’s up and I’m going to ask that you be
removed because you’re being hostile so if you would please exit.
Heaney: I’m not being hostile.
Roberts: If you’ve got a problem with that, you can go downstairs . . . .
This is the third time that you’ve tried to take issue with something
....
Heaney: You’re trying to stop me from presenting facts that contradict
Ms. Foshee. You’re taking my time, and you’re violating parish
ordinance.
Roberts: If you’d please remove the gentleman.
Ronald Black, a police officer with the City of Gretna, responded to
Roberts’s request to remove Heaney from the chambers. Black approached the
podium where Heaney was standing and indicated that he needed to move.
Heaney stopped to hand documents to another person as he walked away up
the aisle, intending to sit down for the rest of the meeting. He alleges that
Black “continued to force plaintiff from the Council chambers” and that Black
shoved him forward, causing him to fall to the floor. After getting up, Heaney
alleges that Black “seized [him] by the arms and forcibly ejected him from the
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chambers” into an elevator and down to the first floor. While Heaney awaited
an ambulance that had been called for him, Black consulted with his
supervisor about whether or not Heaney should be arrested.
B. Procedural Background
Heaney filed a complaint on September 12, 2014. He alleged that Roberts
and Black violated his First and Fourth Amendment rights and sought
damages pursuant to 42 U.S.C. §§ 1983 and 1988, as well as punitive damages.
In addition, Heaney asserted that both Roberts and Black violated his right to
free expression under Article I, Section 7 of the Louisiana constitution and that
Black was liable in tort for false arrest, battery, and negligence under
Louisiana law. Heaney also alleged that Jefferson Parish and the City of
Gretna should be vicariously liable as the employers of Roberts and Black,
respectively.
Black and the City of Gretna, as well as Roberts and Jefferson Parish,
filed motions for summary judgment on July 28, 2015. On December 2, 2015,
the district court granted in part and denied in part both motions. Specifically,
the court denied Roberts’s motion for summary judgment on the First
Amendment and state constitutional claims. Because the state constitutional
claim remains pending, Jefferson Parish remains in the lawsuit as Roberts’s
employer on that claim. The court also denied Black’s motion for summary
judgment on the state law battery and negligence claims. These tort claims
remain pending against the City of Gretna on a theory of respondeat superior. 1
The court granted summary judgment on the free speech claims as to Black,
1The opinion will only refer to Roberts and Black, although both Jefferson Parish and
the City of Gretna are parties to the appeals.
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the Fourth Amendment claims as to Black and Roberts, the punitive damages
claim, and the false arrest claim.
Roberts filed a notice of interlocutory appeal on December 21, 2015. On
February 29, 2016, the district court entered a final judgment in accordance
with its order pursuant to Federal Rule of Civil Procedure 54(b), finding no just
reason for delay. Heaney appealed on March 4, 2016. Black appealed the denial
of summary judgment on March 7, 2016. Roberts filed another notice of appeal
on March 14, 2016.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over final decisions pursuant to 28 U.S.C. § 1291.
While not a final decision, “the denial of a motion for summary judgment based
upon qualified immunity is a collateral order capable of immediate review.”
Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). We have
explained that when a “district court denies an official’s motion for summary
judgment predicated upon qualified immunity, the district court can be
thought of as making two distinct determinations, even if only implicitly.” Id.The court is first deciding that “a certain course of conduct would, as a matter
of law, be objectively unreasonable in light of clearly established law.” Id.“Second, the court decides that a genuine issue of fact exists regarding whether
the defendant(s) did, in fact, engage in such conduct.” Id. We do not have
jurisdiction to review the second type of determination. Id. Instead, “we review
the complaint and record to determine whether, assuming that all of [the
plaintiff’s] factual assertions are true, those facts are materially sufficient to
establish that defendants acted in an objectively unreasonable manner.”
Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “Within this limited
appellate jurisdiction, ‘[t]his court reviews a district court’s denial of a motion
for summary judgment on the basis of qualified immunity in a § 1983 suit de
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novo.’” Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (quoting Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)).
III. DISCUSSION
“Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.” Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012). There are generally two steps in a qualified
immunity analysis. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “First, a
court must decide whether the facts that a plaintiff has alleged or shown make
out a violation of a constitutional right. Second . . . the court must decide
whether the right at issue was clearly established at time of [the] defendant’s
alleged misconduct.” Id. (internal quotations omitted). However, we are not
required to address these steps in sequential order. Id. at 242 (“Because the
two-step . . . procedure is often, but not always, advantageous, the judges of
the district courts and the courts of appeal are in the best position to determine
the order of decisionmaking that will best facilitate the fair and efficient
disposition of each case.”).
In Fourth Amendment cases, determining whether an official violated
clearly established law necessarily involves a reasonableness inquiry. Id. at
244–45. In Pearson, the Supreme Court explained that officer is “entitled to
qualified immunity where clearly established law does not show that the
[conduct] violated the Fourth Amendment,” a determination which “turns on
the objective legal reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken.” Id. (internal
quotations omitted). However, “a reasonably competent public official should
know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818–
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19 (1982). In general, “the doctrine of qualified immunity protects government
officials from . . . liability when they reasonably could have believed that their
conduct was not barred by law, and immunity is not denied unless existing
precedent places the constitutional question beyond debate.” Wyatt v. Fletcher,
718 F.3d 496, 503 (5th Cir. 2013).
A. Free Speech Claims Against Roberts
Roberts argues that he is entitled to qualified immunity on the First
Amendment claim because he was acting in his official capacity as councilman
for Jefferson Parish during the meeting at issue. 2 The constitutional right at
issue is the First Amendment right to be free from viewpoint discrimination in
a limited public forum. See Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346
(5th Cir. 2001) (per curiam) (explaining that limited public forums “describe
forums opened for public expression of particular kinds or by particular
groups”). It is beyond debate that the law prohibits viewpoint discrimination
in a limited public forum. See, e.g., Good News Club v. Milford Cent. Sch., 533
U.S. 98, 106 (2001). The government can restrict or regulate speech in a limited
public forum “as long as the regulation ‘(1) does not discriminate against
speech on the basis of viewpoint and (2) is reasonable in light of the purpose
served by the forum.’” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758
(5th Cir. 2010) (quoting Chiu, 260 F.3d at 346).
2 Louisiana’s constitutional protection of free speech mirrors that of the First
Amendment, so separate determinations of the state and federal claims are unnecessary. See
Winn v. New Orleans City, No. 12-1307, 2015 WL 10713690, at *5 (E.D. La. Jan. 14, 2015).
Furthermore, as the district court determined, the Louisiana Supreme Court would recognize
the same qualified immunity defense for claims under Article I, Section 7 that federal courts
recognize for § 1983 First Amendment claims. Therefore, unless otherwise stated, references
to Heaney’s First Amendment claim refer to both the state and federal claims.
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Here, the district court denied summary judgment because a factual
dispute exists as to whether Roberts’s conduct was viewpoint-based. Viewpoint
discrimination exists “when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.” Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995); see also Pahls v.
Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013) (noting that “a claim of viewpoint
discrimination in contravention of the First Amendment requires a plaintiff to
show that the defendant acted with a viewpoint-discriminatory purpose”). If
Heaney were to have violated a reasonable restriction, such as a topic or time
constraint, there would be no constitutional violation. See Crawford-El v.
Britton, 523 U.S. 574, 593 (1998); Lowery v. Jefferson Cty. Bd. of Educ., 586
F.3d 427, 435 (6th Cir. 2009) (“No violation occurs when the same result would
have occurred in the absence of any illegitimate motive.”). However, Heaney
was speaking on an approved topic and within his allotted time.
Because Heaney was not silenced for violating a reasonable restriction,
the First Amendment claim turns on Roberts’s motive or intent in silencing
and ejecting Heaney from the meeting. The district court declined to grant
summary judgment in favor of Roberts because the “pivotal question”—
whether Roberts acted on an improper motive—is a factual dispute that should
be resolved by a jury. Due to that question of fact, the district court was unable
to determine whether Roberts is entitled to qualified immunity. Assuming that
there was viewpoint discrimination, the court found that Roberts did violate
clearly established law and that the violation was objectively unreasonable. 3
3Roberts argues that the district court was wrong to assume, as a factual matter, that
Roberts acted with improper motive because the “test for the application of qualified
immunity does not involve a look into the subjective intent of the official, but instead looks
at what a reasonable official would know or think.” The Supreme Court addressed the issue
of unconstitutional motive in Crawford-El v. Britton, 523 U.S. 574 (1998). The Court
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Specifically, the district court stated: “It is beyond cavil that a reasonable
government official in Roberts’ position would have known that it would be
impermissible under the First Amendment to prevent Heaney from speaking
and to eject him from the meeting based on the message he was conveying.”
We agree. If Roberts acted with improper motive, he violated Heaney’s
clearly established First Amendment right to be free from viewpoint
discrimination in a limited public forum. Because we do not have jurisdiction
to review the district court’s assessment that a factual dispute exists, we
dismiss Roberts’s appeal. See Chiu, 260 F.3d at 352 (“This question regarding
Defendants’ motivation creates a genuine issue of material fact that cannot be
decided on this appeal.”).
B. Punitive Damages Claim Against Roberts
Although the district court denied summary judgment on the First
Amendment issue, the district court granted Roberts’s motion for summary
judgment as to punitive damages. Punitive damages may be awarded in § 1983
cases “when the defendant’s conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference to the federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Reckless
indifference has been described by the Supreme Court as “‘subjective
consciousness’ of a risk of injury or illegality and a ‘criminal indifference to
explained that “although evidence of improper motive is irrelevant on the issue of qualified
immunity, it may be an essential component of the plaintiff’s affirmative case.” Id. at 589.
While Roberts is correct that qualified immunity presents a question of law to be determined
by the court, “when qualified immunity depends on disputed issues of fact, those issues must
be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006).
Indeed, Crawford-El recognized that that there is a “wide array of different federal law claims
for which an official’s motive is a necessary element” and that there should be no heightened
burden on plaintiffs at the summary judgment phase to prove improper motive. Crawford-
El, 523 U.S. at 585.
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civil obligations.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)
(citation omitted). “[U]nlike compensatory damages, punitive damages are
never available as a matter of right, no matter how egregious the defendant’s
conduct may be.” Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990). The decision
to award or deny punitive damages is left to the finder of fact. Id. This Court
is deferential to district court determinations regarding punitive damages. We
will not necessarily reverse the district court on punitive damages, “[e]ven if a
party has made a showing justifying an award of punitive damages.”
Thompkins v. Belt, 828 F.2d 298, 302 (5th Cir. 1987). That is because an “award
of punitive damages is a harsh remedy and normally is not favored by law” and
its goal “is to punish as well as to deter the commission of similar offenses in
the future.” Creamer v. Porter, 754 F.2d 1311, 1319 (5th Cir. 1985).
Here, the district court was “persuaded that while the evidence could
allow a reasonable jury to infer the necessary subjective intent to support a
First Amendment violation, it will not permit a reasonable jury to infer the
level of ‘evil intent’ or recklessness necessary to support a claim of punitive
damages.” Although in many instances a factual dispute as to a constitutional
violation will preclude summary judgment on punitive damages, it will not
when there is no material question of fact as to the reckless nature of the
defendant’s conduct. See Kyle v. Patterson, 196 F.3d 695, 698 (7th Cir. 1999)
(“While evaluations of motive and intent are generally inappropriate on a
motion for summary judgment, we have recognized an exception to this rule
where a plaintiff fails to produce evidence raising a material question of fact
regarding aggravating circumstances or the reckless or callous nature of the
defendant’s actions.” (internal citation omitted)). We agree with the district
court’s assessment of these facts. Because there is no question that Roberts’s
conduct did not rise to the level of reckless indifference or evil intent, we affirm.
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C. First Amendment Claim Against Black
The district court did not err in granting summary judgment in favor of
Black on the First Amendment claim. Heaney argues that Black is not entitled
to qualified immunity on the First Amendment claim because Black is “the
individual who actually effectuated the First Amendment violation by seizing
and removing Heaney.” Black counters that in responding to a direct order to
remove an individual at a council meeting, he was not required “to make his
own independent determination as to whether the individual should be
removed from the meeting, whether or not [he] ha[d] knowledge of all the facts
which ha[d] caused the council chair to make the request.”
Heaney relies on Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th
Cir. 2002), to argue that an officer who “blindly follow[s]” orders is not entitled
to qualified immunity. But Cozzo is distinguishable. In that case, this Court
denied qualified immunity to a sheriff’s deputy who “was only following the
orders” of a superior in evicting the plaintiff based on a temporary restraining
order (“TRO”) that “on its face neither state[d] nor require[d] eviction.” Id. at
284–85. In Cozzo, we found that the deputy “was well aware of the cause of
[the plaintiff’s] concerns and the need for clarification”
before carrying out the order. Id. at 285. This was true particularly because
the plaintiff had pointed out the TRO’s inaccuracies to the deputy when he
came to evict her. Id.A “right can be said to have been clearly established only if all reasonable
officials in the defendant’s position would have concluded that the challenged
state action was unconstitutional.” Barrow v. Greenville Indep. Sch. Dist., 332
F.3d 844, 846 (5th Cir. 2003). Unlike the deputy in Cozzo, who had ample time
and reasons to conclude that he was carrying out an illegal act, Black had no
reason to believe that he was violating Heaney’s First Amendment rights by
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following Roberts’s order. We agree with the district court that “Black was not
required to cross-examine and second-guess Roberts regarding his First
Amendment motives before acting.” See Collinson v. Gott, 895 F.2d 994, 997
(4th Cir. 1990) (affirming qualified immunity for a sheriff’s deputy who
escorted a citizen out of a city council meeting upon receiving orders to do so
from the presiding officer). Black is entitled to qualified immunity on the First
Amendment claim because his actions as sergeant-at-arms were not objectively
unreasonable in light of clearly established law. We affirm on that claim.
D. Fourth Amendment Claim Against Black
The district court granted summary judgment on Heaney’s Fourth
Amendment claims. 4 “Qualified immunity provides ‘ample protection to all but
the plainly incompetent or those who knowingly violate the law.’” Wooley v.
City of Baton Rouge, 211 F.3d 913, 918–19 (5th Cir. 2000) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). There is a clearly established right to be free
from unreasonable seizures under the Fourth Amendment. See, e.g., Michigan
v. Summers, 452 U.S. 692, 696 (1981). But an officer is only denied qualified
immunity if his or her actions are objectively unreasonable in light of clearly
established law. See, e.g., Blackwell v. Barton, 34 F.3d 298, 303–04 (5th Cir.
1994) (finding that an officer who made an arrest pursuant to a facially valid
warrant acted reasonably and was therefore entitled to qualified immunity
despite violating a clearly established Fourth Amendment right).
We are convinced that the interaction between Black and Heaney was a
seizure under the Fourth Amendment because Heaney was forced to leave the
4 Heaney has waived his Fourth Amendment argument as to Roberts by failing to
argue in his original brief that the district court erred in granting Roberts qualified immunity
on the Fourth Amendment claim. See United States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir.
2005) (citing Fed. R. App. P. 28(a)(8)(A)) (“Any issue not raised in an appellant’s opening brief
is deemed waived.”). We therefore consider only the Fourth Amendment claim against Black.
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meeting. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (explaining
that a “person has been ‘seized’ within the meaning of the Fourth Amendment
only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave”).
However, we do not need to determine whether there was probable cause. Even
“[i]f there is no probable cause to arrest, the question of whether qualified
immunity nonetheless applies is a separate legal and factual issue.” Mesa v.
Prejean, 543 F.3d 264, 271 (5th Cir. 2008). “Even if we find that the right was
clearly established at the time of the alleged violation . . . , a defendant will
still be entitled to qualified immunity if the defendant’s conduct was
‘objectively reasonable in light of “clearly established” law at the time of the
violation.’” Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 614 (5th Cir. 2004)
(quoting Chiu, 339 F.3d at 279). We assess the reasonableness of an officer’s
actions “in light of ‘the facts available to him at the time of his action.’” Id.
(quoting Chiu, 339 F.3d at 284).
Black’s conduct was objectively reasonable in light of clearly established
law. As previously discussed, Black fulfilled the role of sergeant-at-arms at the
meeting. He was therefore responsible for responding to requests by the council
president to address disruptions. Black also reasonably believed he had legal
authority to keep the peace at meetings and in the building. He testified that
“Court security has authority to make sure that everything is peaceful and
quiet in the whole building . . . not just the Council chambers; so if there is a
problem anywhere in the whole building, we can . . . ask them to leave or take
other necessary action.” It was therefore not objectively unreasonable for Black
to respond to Roberts’s request and escort Heaney out of the room or to briefly
detain Heaney while consulting with his supervisor. Black is entitled to
qualified immunity on the Fourth Amendment claim.
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E. False Arrest Claim Against Black
The district court granted summary judgment on Heaney’s false arrest
claim. 5 Under Louisiana law, “[i]n order for plaintiffs to recover for false arrest,
they must prove that they were unlawfully detained by the police against their
will.” Harrison v. Dep’t of Pub. Safety & Corrs., 721 So. 2d 458, 461 (La. 1998).
There are “two essential elements: (1) detention of the person; and (2) the
unlawfulness of the detention.” Miller v. Desoto Reg’l Health Sys., 128 So. 3d
649, 655–56 (La. Ct. App. 2013) (quoting Kennedy v. Sheriff of E. Baton Rouge,
935 So. 2d 669, 690 (La. 2006)). Courts have also referred to false imprisonment
as the “unlawful and total restraint of the liberty of the person.” Rice v.
ReliaStar Life Ins. Co., 770 F.3d 1122, 1136 (5th Cir. 2014) (quoting Crossett
v. Campbell, 48 So. 141, 143 (1908)).
The district court found that probable cause was not required because
“Heaney was not formally arrested and the only detention that occurred as
part of the removal took place after Black removed Heaney from the council
chambers when Black was conferring with his supervisor to determine whether
Heaney should be placed under arrest.” As an initial matter, Heaney never
alleged in his complaint that he was detained by Black after leaving the
chambers, and he appeared to base his false arrest claim only on the exchange
during the meeting. In his deposition, Heaney admitted that he had not been
arrested and was not questioned by Black. Black stated in his deposition that
he had taken Heaney downstairs because he wanted to discuss with his
supervisor whether Heaney should be arrested. Black explained that this was
because security officers can “arrest somebody for disturbing the peace or ask
5 As Heaney points out in his brief, the district court granted summary judgment on
the false arrest claim in favor of both Black and Roberts, but Heaney never asserted the false
arrest claim against Roberts.
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him to leave. And if he doesn’t leave, then [they can] arrest him.” After
removing him from the meeting, Black escorted Heaney downstairs, Heaney
sat outside the office for a brief period while Black consulted with his
supervisor, and Heaney then walked to an ambulance without being escorted.
This encounter does not amount to a detention requiring probable cause
under Louisiana law. See Harrison, 721 So. 2d at 461–64 (finding that officers
who detained individuals at a casino to interrogate them about possible
cheating were only making an investigatory stop and did not need probable
cause). Black’s detention was brief and reasonable. Heaney was also free to
walk to the ambulance when it arrived. We therefore affirm the district court’s
grant of summary judgment on the false arrest claim.
F. Battery and Negligence Claims Against Black
This Court lacks jurisdiction to review the district court’s denial of
summary judgment as to Heaney’s battery and negligence claims against
Black. The district court denied summary judgment because it “agree[d] with
Heaney’s assertion that the jury must determine whether Black was at fault
for injuring Heaney.” Although the district court entered a final judgment
pursuant to Rule 54(b), that certification does not grant appellate jurisdiction
over a denial of summary judgment. See Howell v. Town of Ball, 827 F.3d 515,
522 (5th Cir. 2016) (“A district court may certify its judgment as final . . . only
with respect to claims that have been conclusively resolved.”), petition for cert.
filed, (U.S. Nov. 4, 2016) (No. 16-631).
IV. CONCLUSION
In conclusion, we DISMISS Roberts’s appeal on the First Amendment
claim because there is a material fact issue as to whether there was viewpoint
discrimination. We AFFIRM the district court’s denial of punitive damages.
We AFFIRM the district court’s grant of summary judgment in favor of Black
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on the First Amendment claim and the Fourth Amendment claim. We AFFIRM
the district court’s grant of summary judgment in favor of Black on the false
arrest claim and DISMISS Black’s cross-appeal on the state tort claims for lack
of jurisdiction.
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