Cobb v. Roshto

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-31008
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ADRIENNE COBB; ET AL;
Plaintiffs,
ADRIENNE COBB; EDDIE OLIVER; TOMMY PERKINS
NATHALAN PERKINS,
Plaintiffs-Appellants,
versus
ROBERT ROSHTO; RAYMOND HOLLOWAY; TERRY E. PITRE;
MURPHY J. PAINTER; SAM GARAFOLA; AIMEE, Agent;
JEFF WESLEY; SCOTT JONES; CITY OF DENHAM SPRINGS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
Civil Docket #98-CV-622-C
_________________________________________________________________
March 26, 2002
Before JONES, WIENER, and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The court has carefully considered this appeal in light
of the briefs, oral argument and pertinent portions of the
record. Having done so, we conclude that it is unnecessary to
*
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this opinion should not be published and is not precedent except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.
recite the history of the case, as the parties are well familiar
with it, and that the issues raised by appellants should be
resolved as follows.
1. We affirm the implicit grant of summary judgment
on § 1985 conspiracy claims raised by Tommy Perkins and Nathalan
Perkins.1 This court is empowered to sustain a summary judgment
on any ground asserted in the record below and sustained by the
evidence. Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 601
(5th Cir. 2000). Appellants point to no summary judgment
evidence, other than their self-serving assertions in affidavits,
that supports an inference of invidious motivation, i.e. a
motivation by the Denham springs defendants (the City, Jeff
Wesley and Scott Jones) to deprive Tommy and Nathalan Perkins of
equal protection of the laws. For lack of proof of this element
of a § 1985 claim, summary judgment is proper. Hilliard v.
Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
2. We affirm the grant of summary judgment on Tommy
Perkins’s § 1983 claims against the Denham Springs defendants.
With regard to his claims arising from a local administrative
proceeding, the district court correctly held that, as there was
never a hearing (and the proceeding was dismissed by state court
order), there could be no constitutional deprivations. The
1
The appellees do not cross-appeal the court’s July 22, 2000
order that apparently preserved any § 1985 claims Adrienne Cobb
might have asserted against the Denham Springs defendants.
2
claims concerning the seizure of Perkins’s liquor and the alleged
failure to return the liquor promptly fail because of Chief
Wesley’s qualified immunity. The Chief had at least arguable
probable cause for his actions, precluding a finding that his
actions were objectively unreasonable in light of clearly
established constitutional law. Anderson v. Creighton, 483 U.S.
635, 640 (1987).
3. We affirm the grant of summary judgment on
Nathalan Perkins’s § 1983 claims for the incidents other than the
Fourth Amendment claims arising out of her arrest and the search
of her home. The district court’s dismissal thus includes
Nathalan’s claims for Fifth and Sixth Amendment violations in
connection with her arrest and for lost wages while Tommy
Perkins’s lounge was shut down. There is no evidence to sustain
the former alleged constitutional violations, and there is no
constitutional claim for lost wages under these circumstances.
4. We reverse and remand the grant of summary
judgment to Robert Roshto on grounds of prescription. The state
court proceedings do not support the district court’s finding
that the state case against Roshto was dismissed on an exception
of improper cumulation. Instead, the amended petition in state
court interrupted prescription against Roshto.
5. We reverse and remand the district court’s
dismissal of § 1988 claims brought by appellants, solely to the
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extent that if appellants prevail on any of their remaining
claims, they may recover attorneys’ fees and costs under § 1988.
6. We affirm the district court’s discretionary
decision to remand appellants’ state law claims to the state
court. Under the federal statute, 28 U.S.C. § 1367(c)(2), the
court may decline to exercise supplemental jurisdiction over
state law claims if they “substantially predominate” over the
federal claims. Bass v. Parkwood Hospital, 180 F.3d 234 (5th
Cir. 1999). Taking into account our reversal of the summary
judgment for Roshto, the dozen or more state law claims
nevertheless continue to “substantially predominate” in number,
variety, and complexity. The district court did not abuse his
discretion.
7. We affirm the dismissal of Eddie Oliver’s claims
other than any claim pending against Robert Roshto.
AFFIRMED in part, REVERSED in part and REMANDED.
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