                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                             F I L E D
                                     In the                                  January 19, 2007
               United States Court of Appeals                           Charles R. Fulbruge III
                           for the Fifth Circuit                                Clerk
                                _______________

                                  m 05-30929
                                _______________




                 LENWARD P. HEBERT; DARNELL A. HEBERT,

                                                     Plaintiffs-Appellees,

                                     VERSUS

                        RANDY J. MAXWELL, etc. et al,

                                                     Defendants


                             RANDY J. MAXWELL,
                          SHERIFF OF CONCORDIA PARISH,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AND AS KEEPER OF CONCORDIA PARISH JAIL;
                                    JIM BOYD,
               DEPUTY OF CONCORDIA PARISH SHERIFF’S DEPARTMENT,
               IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY,


                                                     Defendants-Appellants



                          _________________________

                    Appeal from the United States District Court
                       for the Western District of Louisiana
                                m 1:03-CV-1739
                      ______________________________
Before SMITH, BENAVIDES, and PRADO,                       bert was parked “on Gene Tiffee[’s] land at
  Circuit Judges.                                         the intersection of La. 129 & 907 next to his
                                                          cow pen.” Hebert claims that he offered to
JERRY E. SMITH, Circuit Judge.*                           move his truck and leave the scene but was
                                                          precluded from doing so. Boyd arrested He-
   After being arrested for criminal trespass             bert for criminal trespass and later testified that
and spending about forty-eight hours in jail,             Maxwell told him to arrest Hebert and hold
Lenward Hebert brought a 42 U.S.C. § 1983                 him until they “found out more information.”
action for false arrest, false imprisonment, de-
nial of bail, and unconsititutional conditions of             Hebert was taken to the parish jail Saturday
confinement. The district court denied the                afternoon. He was given two bedsheets, two
claim of qualified immunity made by the defen-            towels, and two hand towels, was permitted to
dants, Sheriff Randy Maxwell and his deputy,              call his wife, and was placed in a holding cell
Jim Boyd. The defendants appeal the denial of             called the “tank.” Hebert told his wife that he
qualified immunity for false arrest and condi-            had been arrested but that she should not come
tions of confinement, and we affirm.                      to the jail because he would not be let out until
                                                          Monday. Although the bond for criminal tres-
                        I.                                pass is preset on a bond schedule, Hebert did
    After the Concordia Parish Sheriff’s office           not pay the bond until Monday. Maxwell had
received several calls about a suspicious blue            placed a “hold” on Hebert until Monday and
pickup, Boyd came upon Hebert sitting inside              testified that the “hold” was maintained until
his blue pickup, which was parked off the side            they could “find out who [Hebert] was.” On
of the highway in a grassy area in front of a             Monday, Hebert was taken before a judge,
farm. Boyd approached Hebert and asked                    posted bond, and was released.
who he was and what he was doing. Hebert
initially indicated that he was a surveyor, but              Hebert complains that the jail conditions
he soon admitted that he was a private inves-             were inhumane. He asserts that the cell reeked
tigator. Hebert refused to provide information            of human waste, which was strewn across the
about whom he was investigating, although he              walls and the floor. The “tank” contained no
did provide extensive identification, including           bed, only a hard wooden bench. He claims the
a valid driver’s license, a Louisiana private in-         overhead lights were never turned off, that he
vestigator’s license, a Louisiana permit for              was not permitted to shower or exercise, and
tinted windows, vehicle registration, a veter-            that he was not given soap, toilet paper, tooth-
an’s identification card, and his scuba diving            brush, or toothpaste until shortly before re-
certification.                                            lease. Although he received three meals a day,
                                                          he urges that the food was cold, that it had
   Boyd called Gene Tiffee, the landowner, to             been sitting out for a considerable time before
the scene. Tiffee signed a statement that He-             being served, and that the only edible item was
                                                          a biscuit. Finally, he alleges that clean cells
                                                          with mattresses were empty and available in
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-       the jail.
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

                                                      2
                       II.                               to which the plaintiff points must be sufficient,
    We have jurisdiction to review the district          if his version is accepted, for a reasonable trier
court’s denial of summary judgment on the                of fact to determine (1) that the defendants
basis of qualified immunity in this case because         violated the plaintiff’s constitutional rights and
it comes within the collateral order doctrine.           (2) that the violation was objectively unreason-
Where the denial of qualified immunity is                able. See Fraire v. City of Arlington, 957
based on an issue of law, it is an appealable            F.2d 1268, 1273 (5th Cir. 1992). The inquiry
“final order” within the meaning of 28 U.S.C.            into reasonableness asks “whether ‘[t]he con-
§ 1291. Mitchell v. Forsyth, 472 U.S. 511,               tours of the right [are] sufficiently clear that a
530 (1985). Whether a fact that is in dispute            reasonable official would understand that what
is “material” is a legal issue over which we             he is doing violates the right.’” Id. (citing
have jurisdiction. Davis ex rel McCully v. City          Anderson v. Creighton, 483 U.S. 635, 640
of N. Richland Hills, 406 F.3d 375, 379 (5th             (1987)). If reasonable public officials could
Cir. 2005). We determine whether an issue of             differ as to whether the defendants’ actions
the materiality of disputed facts is properly            were lawful, defendants are entitled to immun-
raised on appeal by reference to the nature of           ity. Malley v. Briggs, 475 U.S. 335, 341
the legal argument advanced in the appellant’s           (1986).
brief. Id.
                                                             “The right to be free from arrest without
    Defendants argue that the uncontested facts          probable cause is a clearlyestablished constitu-
demonstrate that there was probable cause to             tional right.” Mangierei v. Clifton, 29 F.3d
arrest Hebert. They also reason that even if             1012, 1016 (5th Cir. 1994). The test for prob-
the plaintiff’s allegations as to the condition of       able cause is whether the officer, at the time of
the “tank” are true, they do not rise to the             arrest, “had knowledge that would warrant a
level of a violation of a clear statutory or con-        prudent person’s belief that the person arrested
stitutional right. These arguments address the           had already committed or was committing a
materiality of the facts the district court found        crime.” Id. (citing Duckett v. City of Cedar
to be in dispute, raising legal issues that this         Park, 950 F.2d 272, 278 (5th Cir. 1992)).
court may review on interlocutory appeal.                “Police officers who reasonably but mistakenly
                                                         conclude that probable cause is present are
                       III.                              entitled to qualified immunity.” Id. at 1017
   Defendants contend that the district court            (citing Hunter v. Bryant, 502 U.S. 224, 227
erred in denying qualified immunity on the               (1991)).
claim of false arrest. We review the refusal to
dismiss Hebert’s claim on the basis of qualified            In Devenpeck v. Alford, 543 U.S. 146
immunity de novo. Wilkerson v. Stalder, 329              (2004), the Court considered a claim of false
F.3d 431, 434 (5th Cir. 2003).                           arrest under the Fourth Amendment and con-
                                                         cluded that a subjective analysis of the offi-
   Once a public official has raised the defense         cer’s state of mind is irrelevant to the analysis.
of qualified immunity, the burden rests on the           Id. at 153. The only question is whether, giv-
plaintiff to rebut it. See Pierce v. Smith, 117          en the facts known to the officer, he had prob-
F.3d 866, 871-72 (5th Cir. 1997). On a mo-               able cause to arrest the defendant for a crime.
tion for summary judgment, the disputed facts            Id. Applying the Devenpeck standard in the


                                                     3
qualified immunity context, the inquiry is                   To convict a defendant of criminal trespass
whether, given the facts known to Boyd, he                under this statute, the state must “prove an un-
could have reasonably believed he had proba-              authorized intentional entry onto immovable
ble cause to arrest Hebert for any crime.                 property owned by another under circumstanc-
                                                          es where the person entering the property
   Boyd and Maxwell point to three statutes               knows or reasonably should know the entry is
under which Hebert could have been arrested:              unauthorized.” State v. Davis, 540 So. 2d
Criminal Trespass, LA. REV. STAT. 14:63                   600, 602 (La. App. 5th Cir. 1999). Boyd can
(1997) (amended 2003); Parking upon the                   point to no facts, other than reports of “suspi-
Highway Shoulder, LA. REV. STAT. 32:296(a)                cious activity,” that are entirely unrelated to
(2002); and Blocking of Private Driveways,                Tiffee’s property, to suggest that Hebert had
Highways and Department Rights of Way, LA.                the intent to enter property belonging to an-
REV. STAT. 32:143.1 (2002). The Criminal                  other. Similarly, Boyd has pointed to no facts
Trespass statute, as encoded at the time of He-           suggesting Hebert had reason to believe park-
bert’s arrest, provided as follows:                       ing on the highway side of Tiffee’s fence was
                                                          unauthorized. Without any facts suggesting
   B. No person shall intentionally enter im-             intent or knowledge, Boyd could not have had
   movable property owned by another:                     probable cause to believe Hebert was commit-
                                                          ting the crime of criminal trespass.
        (1) When he knows his entry is unau-
        thorized, or                                         The other two statutes are similarlyunavail-
                                                          ing. One refers specifically to parking “un-
        (2) Under circumstances where he rea-             attended” vehicles on a state highway shoul-
        sonably should know his entry is unau-            der. LA. REV. STAT. 32:296(a) (2002). Nei-
        thorized.
               ..                                         ther party contends that Hebert’s pickup was
                                                          unattended. The other statute provides au-
        C(2) It shall be an affirmative defense           thority for an officer to tow, or to require a
        to a prosecution pursuant to Subsec-              driver to move, a vehicle that blocks a private
        tion B(2) to show that property was               driveway. This section only authorizes an of-
        not adequately posted in accordance               ficer to require the operator of the vehicle to
        with Subsections D or E, and F of this            move it or to pay one dollar plus towing costs
        Section.                                          for the vehicle; it is not grounds for arrest.
        ...                                               Even if either of these statutes were a ground
                                                          for arrest, Louisiana law provides that when a
   E. In order for immovable property other               person is arrested for a violation of the Louisi-
   than forest land to be adequately posted . . .         ana Highway Regulatory Act, he “shall be re-
   the owner . . . shall post the property by . . .       leased on his own recognizance upon signing
                                                          the promise to appear section of the traffic ci-
        (3) Constructing a fence around the               tation.” LA. REV. STAT. 32:411.1(A)(4)
        area to be posted . . . .                         (2002).

LA. REV. STAT. 14:63 (1997) (amended 2003).                  Thus these two statutes, even if they were
                                                          violated, are not grounds for imprisonment.


                                                      4
Because Boyd could not have believed he had             tions, when other available rooms had sleeping
probable cause to arrest Hebert without facts           facilities, is enough to survive a summary judg-
relating to Hebert’s intent to trespass or his          ment motion based on qualified immunity.1
knowledge that he was trespassing, the de-
fense of qualified immunity was properly                   The order denying qualified immunity is
denied.                                                 AFFIRMED, and this matter is REMANDED
                                                        for further proceedings. We express no view
                       IV.                              on the ultimate merits of this case.
    Defendants urge that the district court erred
in denying qualified immunity on the claim of
unconstitutional conditions of confinement.
Section 1983 liability for alleged violations of
detainee’s rights can be premised on two the-
ories: (1) that the conditions of confinement
violated the detainee’s rights or (2) that epi-
sodic acts or omissions of officials violated
those rights. Scott v. Moore, 114 F.3d 51, 53
(5th Cir. 1997). Hebert complains that he was
not provided a bed, that the meals were inade-
quate, that he lacked basic supplies like toilet
paper and toothpaste, and that the room was
filthy. These allegations amount to a “consti-
tutional attack on general conditions, practic-
es, rules, or restrictions of pretrial confine-
ment,” so this case presents a claim of uncon-
stitutional conditions of confinement. Id. (cit-
ing Hare v. City of Corinth, 74 F.3d 633, 644
(5th Cir. 1996)). In a condition of confine-
ment case, the municipality is considered to
have intended the alleged deprivation, and a
                                                           1
constitutionalviolation occurs where we deter-               Some courts have held that forcing a detainee
mine that “the condition of confinement is not          to sleep without a mattress, even for as little as
related to a legitimate, non-punitive govern-           thirty-six hours, states a due process violation. See
mental objective.” Id.                                  Oladipopo v. Austin, 104 F. Supp. 2d 626 (W.D.
                                                        La. 2000) (citing Thompson v. City of Los An-
   We take the facts in the light most favor-           geles, 885 F.2d 1439, 1449 (9th Cir. 1989); Anela
                                                        v. Wildwood, 790 F.2d 1063, 1069 (3d Cir.
able to Hebert. He alleges that he was forced
                                                        1986)); but see Mann v. Smith, 796 F.2d 79, 85
to sleep on a wooden plank while the county             (5th Cir. 1986) (“[The detainee] has cited no case
had other cells with mattresses available. The          holding that the Constitution requires elevated beds
government’s stated objective was to “find out          for prisoners, and we know of no source for such a
who [Hebert] was.” In the absence of a com-             right.”). We do not need to address this specific
pelling governmental interest, housing a de-            question, because in this case the governmental unit
tainee in a room without sleeping accommoda-            had mattresses available but refused to provide one
                                                        to Hebert.

                                                    5
