Kelly v. Beau Rivage Resorts, Inc. , 184 F. App'x 364 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-60858
Summary Calendar
DEAN KELLY,
Plaintiff-Appellant,
versus
BEAU RIVAGE RESORTS, INC., JAMES KESSELL,
ERIC NEWTON, and JOHN DOES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:04-CV-0055
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff Dean Kelly appeals from the dismissal on summary
judgment of his claims stemming from an incident at a modeling
event at the Beau Rivage resort in Mississippi in which the
plaintiff was arrested for trespassing. Plaintiff objects that the
district court erred in denying his request for additional
discovery under Rule 56(f) and in granting summary judgment on his
claims.
*
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this opinion should not be published and is not precedent except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. 05-60858
-2-
The denial of a Rule 56(f) motion by a district court is
reviewed for abuse of discretion. Beattie v. Madison County Sch.
Dist., 254 F.3d 595, 605 (5th Cir. 2001). The plaintiff must show
how the additional discovery will defeat summary judgment and
create a genuine dispute as to a material fact. Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285-86 (5th Cir. 1990). The
district court here held that the plaintiff’s efforts to conduct
discovery relating to an Beau Rivage identification badge allegedly
used by the plaintiff to attract women in a bar were immaterial to
the issues on summary judgment. Plaintiff contends that this
discovery was relevant to whether Beau Rivage had a “good faith
belief in the Plaintiff’s guilt” in misusing its badge, part of the
basis for its decision to eject him. The district court did not
abuse its discretion. Mississippi law allows a business to eject
individuals from their premises. MISS. CODE ANN. § 97-23-17 (1972).
Discovery on the question of why Beau Rivage chose to eject the
plaintiff is not material to the question of whether, after he was
ordered to leave, the plaintiff committed trespass.
Plaintiff also objects that the district court erred in
granting summary judgment. We review de novo. Facility Ins. Corp.
v. Employers Ins. of Wausau, 357 F.3d 508, 512 (5th Cir. 2004). The
district court did not err in granting summary judgment on the
claims. As to the malicious prosecution claim for arresting
plaintiff for trespassing, it is undisputed that plaintiff was
instructed to leave and video evidence demonstrated that afterwards
No. 05-60858
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the plaintiff refused to leave and attempted to walk past security.
This suffices to show probable cause to arrest the plaintiff for
trespass. The plaintiff’s false arrest, false imprisonment, and
negligent and intentional infliction of emotional distress claims
were properly dismissed for the same reason. The district court did
not err in dismissing the assault and battery claim, as the arrest
was lawful and reasonable force was permissible in conducting that
arrest. The negligent supervision claim was properly dismissed
because its success depends on proving the other claims. The
district court properly dismissed plaintiff’s invasion of privacy
claim because the plaintiff’s expectation of privacy was outweighed
by the defendant’s interest in maintaining control over the
plaintiff until he complied with the order to leave the property.
The plaintiff’s claim for conversion of a ring allegedly in his
backpack was properly dismissed because he has produced no
affirmative factual evidence supporting the claim. The judgment of
the district court is AFFIRMED.