Donald Hodge, Jr. v. East Baton Rouge Parish ( 2010 )

REVISED SEPTEMBER 16, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 10-30018 September 3, 2010
Summary Calendar
Lyle W. Cayce
Clerk
DONALD C. HODGE, JR.,
Plaintiff-Appellant
v.
EAST BATON ROUGE PARISH SHERIFF’S OFFICE; THE BOARD OF
SUPERVISORS FOR LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE; GREG PHARES, In his
official capacity as the Sheriff for East Baton Rouge Parish; LEONARDO DEON
MOORE, Individually and official capacity as a Lieutenant with East Baton
Rouge Parish Sheriff’s Office,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-735
Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Leonardo Deon Moore, a lieutenant in the East Baton Rouge Parish
Sheriff’s Office, arrested Donald C. Hodge, Jr. after Hodge did not comply with
several verbal warnings from Lieutenant Moore and the Louisiana State
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 10-30018
University football game day marshal asking him to leave the student disability
accessible section in Tiger Stadium, which he did not have a ticket for. Hodge
received a summons for remaining after being forbidden and resisting arrest, but
was never prosecuted. Hodge filed suit asserting various Constitutional and
Louisiana law claims against the East Baton Rouge Parish Sheriff’s Office; The
Board of Supervisors for Louisiana State University; Greg Phares, Sheriff for
East Baton Rouge Parish; and Lieutenant Moore.
The district court dismissed all claims against the defendants or granted
them summary judgment. Although Hodge names both Sheriff Phares and
Lieutenant Moore as defendants on appeal, he solely briefs his 42 U.S.C. § 1983
claim against Lieutenant Moore for false arrest in violation of his Fourth
Amendment rights. Despite our policy of liberally construing briefs of pro se
litigants and applying less stringent standards to parties proceeding pro se than
to parties represented by counsel, pro se parties must still brief the issues and
reasonably comply with the standards of Federal Rule of Appellate Procedure
28.1 Only Hodge’s false arrest claim comes close, even though he is a lawyer.2
We consider all other claims waived, each of which approached the frivolous to
begin with. We review the district court’s grant of summary judgment de novo
and apply the same legal standards as the district court.3
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
1
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam); Yohey v. Collins, 985
F.2d 222, 224–25 (5th Cir. 1993). Federal Rule of Appellate Procedure 28(a) requires an
appellant’s brief to contain a statement of the issues and an argument.
2
Remarkably, Hodge, an attorney, cites no authority in support of the false arrest
claim.
3
Depree v. Saunders, 588 F.3d 282, 286 (5th Cir 2009); see also Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
2
No. 10-30018
have known.”4 Here, if Lieutenant Moore’s actions were “objectively reasonable
under the circumstances, such that a reasonably competent officer would not
have known his actions violated then-existing clearly established law,” immunity
attaches.5
Hodge’s only hope is to show his arrest was without probable cause – and
that Lieutenant Moore should have known better.6 “Probable cause exists when
the totality of the facts and circumstances within a police officer’s knowledge at
the moment of arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense.”7 Lieutenant Moore had
probable cause to believe Hodge was committing the state-law crime of
Remaining After Being Forbidden.
Louisiana’s criminal trespass statute provides:
No person shall without authority go into or upon or remain in or upon or
attempt to go into or upon or remain in or upon any structure, watercraft,
or any other movable, or immovable property, which belongs to another,
including public buildings and structures, ferries, and bridges, or any part,
portion, or area thereof, after having been forbidden to do so, either orally
or in writing . . . by any owner, lessee, or custodian of the property or by
any other authorized person.8
4
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation marks omitted).
5
Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008).
6
See id; see also Club Retro L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (“The
Constitutional claim of false arrest requires a showing of no probable cause.”).
7
Mesa, 543 F.3d at 269 (quotation marks omitted).
8
LA. REV. STAT. § 14:63.3(A). This court has, in an unpublished but persuasive opinion,
interpreted a similar situation as giving officers probable cause under this statute. Singleton
v. St. Charles Parish Sheriff’s Dep’t, 306 F. App’x 195, 199–200 (5th Cir. 2009) (unpublished)
(per curiam) (holding that a Sheriff’s deputy asking a person to leave a store and his failure
to do so gave the Sheriff’s deputy probable cause to arrest). The Louisiana Supreme Court has
interpreted the statute similarly. See State v. Ceaser, 859 So. 2d 639, 644–45 (La. 2003)
(holding that a defendant remaining on the premises after being ordered to leave constituted
an offense in progress and gave officers probable cause to arrest).
3
No. 10-30018
Louisiana State University authorizes game day marshals to handle seating and
ticketing. Hodge did not possess a ticket for the student disability accessible
section, and the game day marshal asked Hodge to leave the area. Hodge
refused. The game day marshal then told Lieutenant Moore that Hodge would
not leave and asked for help removing him from the restricted area. Lieutenant
Moore told Hodge to leave the section. He would not. Hodge’s refusal after
multiple requests gave Lieutenant Moore probable cause. Lieutenant Moore’s
actions were objectively reasonable under the circumstances and he is entitled
to qualified immunity from Hodge’s Fourth Amendment-based claim.9
AFFIRMED.
9
Although Hodge’s brief leaves the court to guess, in the event that he is also bringing
a false arrest claim under Louisiana law, summary judgment is affirmed by our finding that
Lieutenant Moore had probable cause to arrest. See Deville v. Marcantel, 567 F.3d 156, 172
(5th Cir. 2009) (per curiam) (explaining probable cause vitiates a Louisiana false arrest action);
see also State v. Hathaway, 411 So. 2d 1074, 1078–79 (La. 1982).
4