McCall v. Peters

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-10550
Summary Calendar
DAVID WAYNE MCCALL,
Plaintiff-Appellant,
versus
SCOTT PETERS, Etc., ET AL.,
Defendants,
SCOTT PETERS, Detective, Coppell Police Department;
MICHAEL D. SCOTT, Sergeant, Coppell Police Department;
CITY OF COPPELL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-2247-D
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
David Wayne McCall, Texas prisoner number 876980, appeals
from an order of the district court granting summary judgment to
defendants Scott Peters, Michael D. Scott, and the City of
Coppell in his 42 U.S.C. § 1983 action. We review the district
*
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this opinion should not be published and is not precedent except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. 03-10550
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court's grant of summary judgment de novo. Cousin v. Small, 325
F.3d 627, 637 (5th Cir.), cert. denied, 124 S. Ct. 181 (2003).
McCall argues that Peters and Scott lacked probable cause to
arrest him. He asserts that they knowingly presented an arrest
warrant affidavit that contained false and misleading information
and omitted exculpatory facts. He argues that the district court
failed to consider his summary judgment evidence and resolved
disputed issues of fact. We conclude from the totality of the
circumstances in the summary judgment record that Peters and
Scott had probable cause to seek a warrant for McCall's arrest
and that, even setting aside the allegedly false information in
the warrant affidavit, probable cause is evident. See Freeman v.
County of Bexar, 210 F.3d 550, 553-54 (5th Cir. 2000); Sorenson
v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). Therefore, the
district court's dismissal of the false arrest claim on grounds
of qualified immunity is affirmed.
McCall also argues that Peters committed perjury at an
examining trial. However, he has not sufficiently briefed the
issue, and the perjury claim is deemed abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also FED. R.
APP. P. 28(a)(9)(A). McCall's civil conspiracy claim also fails
because he has not shown an actual violation of his rights or an
agreement by the defendants to commit an illegal act. See Hale
v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); Arsenaux v.
Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982).
No. 03-10550
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McCall argues that the City of Coppell had a long history
and custom of allowing its officers to make illegal arrests.
Because McCall failed to show that his arrest was illegal, he
cannot show that an official policy or custom caused the
violation of his constitutional rights. See Monell v. Department
of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978);
Piotrowski v. City of Houston, 237 F.3d 567, 578-79 (5th Cir.
2001). McCall's state law claims are deemed abandoned for
failure to brief them. See Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994).
McCall argues that he was not given an opportunity for
discovery because he was misled by the wording of the district
court's protective order. We have already rejected a similar
claim by McCall in an earlier appeal where we held that the
protective order was clearly written and would not be confusing
or misleading to a lay person. See McCall v. Peters, No. 02-
11189 (5th Cir. Aug. 29, 2003)(unpublished).
AFFIRMED.