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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 8, 2012

                                       No. 11-30423                        Lyle W. Cayce
                                                                                Clerk

RESA LATIOLAIS

                                                  Plaintiff-Appellee
v.

DONALD CRAVINS, SR.; CLAUDETTE GALLOW

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                                   (09-CV-18)


Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        This is an appeal from the district court’s denial of summary judgment on
the defense of qualified immunity in an action for damages under 42 U.S.C. §
1983 involving a child custody matter. Because we find that there is sufficient
evidence to raise a genuine dispute of material fact on the issues of qualified
immunity before us on appeal, we AFFIRM the district court’s denial of Officer
Roylis “Ricky” Gallow’s and Senator Donald Cravins, Sr.’s motions for summary
judgment.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                    FACTS AND PROCEDURAL HISTORY1
       This action arises from a bitter custody dispute over Cole, the minor son
of Resa Latiolais and Bradley Griffith.           Latiolais and Griffith were never
married, but were involved in a relationship for almost fourteen years. Cole was
born on November 19, 2001, and resided exclusively with Latiolais.
       On October 5, 2005, Griffith filed a petition to establish paternity and for
sole custody. This action was filed shortly after Latiolais, Cole, and Lana, who
was Latiolais’ minor daughter from a previous marriage, evacuated from
Hurricane Rita with Latiolais’ boyfriend, Gregory Chappell, whom she later
married. Griffith’s petition asserted that Latiolais had “lately not made choices
which are in the child’s best interest.”            On October 10, 2005, Latiolais
reconvened against Griffith, seeking custody and an order of child support.
       Thereafter, Griffith began a conspiracy to prove her unfit through arrests,
criminal prosecutions, coercion of Lana to make false allegations of child abuse,
removal of Cole from the home on false allegations of child abuse, and other
actions. Specifically, between October 5, 2005, and December 8, 2005, Griffith
caused Latiolais to be investigated for food stamp fraud, investigated by the
Office of Community Services (OCS) for child abuse on two occasions, confronted
by police officers on several occasions, reported for criminal damage to property,
and charged with simple battery. Further, in “July 2006, she was harassed to
the point of seeking court intervention, had retaliatory restraining orders taken
against her, and she was arrested for aggravated assault.” Latiolais provides
further detail in her brief of Griffith’s activities, much of which is not repeated
here for the sake of brevity. However, there are two incidents most relevant to
these appeals.



       1
         As discussed herein, this court has limited appellate jurisdiction and must assume
Latiolais’ version of the facts are true. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).

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      Without Latiolais’ knowledge, Griffith began meeting with Lana, then
sixteen years old, in October 2005. These meetings were arranged through
Lana’s schoolmate, Jessica Harbin, who was the daughter of Jan Huffman.
Griffith’s involvement with Huffman and Harbin is documented throughout the
briefs and record. Latiolais asserts that Griffith asked Harbin to assist him in
turning Lana against Latiolais, and that, as a result, Lana acted “incorrigibly
to the point that on October 25, 2005, Resa ended up slapping Lana.” Lana told
Huffman the following day and Huffman convinced Lana to report her for child
abuse. Huffman and Harbin then took Lana to the Carencro Police Department,
where Griffith met them. Chief Carlos Stutes determined that the matter was
actually within the jurisdiction of the Lafayette Parish Sheriff’s Department,
who he then called. Deputy Dirk Campbell, who is the boyfriend of Huffman’s
daughter, Danielle, was dispatched, interviewed Lana and left her in Huffman’s
care. Huffman, Harbin, Griffith and Lana then went to a Mexican restaurant
where the sheriff’s department was called a second time. Deputy Campbell met
the parties at the restaurant. Lana then reported that Latiolais abused Cole.
Huffman then took Lana to one of Griffith’s businesses, where she received
clothes, a new cell phone, some money and the promise of the use of a limousine
for her graduation. Deputy Campbell then called OCS to report the abuse and
Cole was removed from Latiolais’ care that night and put in Griffith’s care.
      Two days later, OCS determined there had been no abuse and instructed
that Cole be returned to Latiolais’ care. Deputy Alex Montgomery advised
Griffith that he had to return Cole to Latiolais and dispatched two officers to
oversee the exchange. Griffith’s private investigator secretly photographed the
exchange, during which Griffith was “screaming irately in the parking lot and
making quite a scene.”
      In early November, 2005, Latiolais obtained an Order of Protection on
behalf of Lana after learning about the contact with Griffith, Huffman and

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Harbin. The trial court issued the restraining order, prohibiting Griffith or any
third party acting on his behalf from contacting Lana.
       On November 30, 2005, Griffith was to return Cole from visitation to
Latiolais at a fast-food restaurant at 7:30 a.m. so she could take him for a test
at Opelousas General Hospital. Griffith failed to show up and Latiolais began
calling his cell phone but he did not initially answer. Once Griffith answered,
he told her he was already at the hospital with Cole. Upon Latiolais’ arrival at
the hospital, she was unable to locate Griffith or Cole. Still unable to find Cole
or Griffith, who continued to say that he was already at the hospital, Latiolais
recruited assistance from Opelousas Police Officer Roylis “Ricky” Gallow2
(“Officer Gallow”), who she observed in the hospital talking on his cell phone.3
Officer Gallow indicated that he was waiting for Latiolais. As Latiolais and
Officer Gallow turned to find Griffith, they saw Griffith, Cole and Cindy Hebert,
who was in a long-term relationship with and also had a child with Griffith.4
Hebert had previously been prosecuted and served probation for threatening to
kill Latiolais. Latiolais took Cole from Griffith and then pushed Hebert out of
her way to proceed to the lab. Upon Hebert’s insistence, Officer Gallow then
cited Latiolais for simple battery.
       At some point later, Senator Donald Cravins, Sr., called Deputy
Montgomery at Griffith’s request and asked him to help Griffith out on the
custody case. Deputy Montgomery testified that, “[t]o me, it felt like he was a
friend of mine and friend of Mr. Griffin’s [sic] and he was sort of caught in

       2
        Officer Gallow died on July 22, 2009, and was survived solely by his wife, Claudette
Gallow, who was put into possession of his estate on December 2, 2009. Claudette Gallow
(hereinafter “Gallow”) was substituted as party defendant for Officer Gallow.
       3
        As will be discussed later herein, cell phone records later established that Officer
Gallow was talking on the telephone with Griffith just prior to Latiolais’ arrival.
       4
        The record indicates that Hebert and Griffith later broke up and Hebert then
recounted details regarding Griffith’s activities to Latiolais.

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between friendships and trying to see if he could remain friends with both
parties and at the same time help Mr. Griffin [sic] out.” Deputy Montgomery
further testified that he was angered by Cravins attempt to have him help
Griffith on the custody case.
      A trial on the merits of the custody matter began on August 21, 2006, and,
as stated by the district court, “with interruptions, concluded on January 28,
2008.” The trial court entered a written (and later modified) judgment on March
27, 2008, which ordered joint custody, but did not designate a domiciliary parent.
Latiolais appealed the trial court’s ruling and, on March 3, 2010, the Court of
Appeal of the Third Circuit of Louisiana reversed the trial court and rendered
judgment awarding sole custody to Latiolais. Griffith v. Latiolais, 32 So.3d 380
(La. App. 3d Cir. 2010). The Supreme Court of Louisiana granted Griffith’s
petition for certiorari and reversed and remanded for the district court to
reconsider its joint custody plan. Griffith v. Latiolais, 48 So.3d 1058 (La., 2010),
clarified, 54 So.3d 1092 (La., 2010). The trial court then reconsidered its
previous joint custody award and named Latiolais the domiciliary parent.
Latiolais appealed and the court of Appeal of the Third Circuit affirmed. 70
So.3d 71 (La. 2011).
      On January 1, 2009, Latiolais filed an action under 42 U.S.C. Section 1983
as well as state law claims against Griffith, Officer Gallow, the City of Opelousas
and Cravins.    The defendants then filed individual motions for summary
judgment, with Gallow and Cravins asserting the defense of qualified immunity.
The United States District Court for the Western District of Louisiana, Lafayette
Division, filed a Judgment and a Memorandum Ruling on March 30, 2011. The
district court denied the motions for summary judgment by Griffith, Gallow and
Cravins. The court granted the motion for summary judgment on the official
capacity claims against the City of Opelousas and Officer Gallow, and denied the



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motion as to the state pendent claims.        Thereafter, Gallow and Cravins
appealed. For the reasons stated herein, we AFFIRM.
                          STANDARD OF REVIEW
      This court reviews de novo a district court’s denial of a motion for
summary judgment on the basis of qualified immunity. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010). “The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The denial of a motion for summary judgment on the basis of qualified immunity
is immediately appealable, to the extent that it turns on an issue of law.
Kovacic, 628 F.3d at 211.       The limitation of the interlocutory appellate
jurisdiction to questions of law prohibits this court’s consideration of the
correctness of plaintiff’s version of the facts. Good v. Curtis, 601 F.3d 393, 397
(5th Cir. 2010).
             This means that the district court’s finding that a genuine
      factual dispute exists is a factual determination that this court is
      prohibited from reviewing in this interlocutory appeal. But the
      district court’s determination that a particular dispute is material
      is a reviewable legal determination. Thus, a defendant challenging
      the denial of a motion for summary judgment on the basis of
      qualified immunity must be prepared to concede the best view of the
      facts to the plaintiff and discuss only the legal issues raised by the
      appeal.

Id. at 397-98. (Internal marks, citations and emphasis omitted).
                                 DISCUSSION
      Title 42 U.S.C. Section 1983 allows a civil action for deprivation of rights
and states, in relevant part:
      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State or Territory or the District of
      Columbia, subjects, or causes to be subjected, any citizen of the
      United States or other person within the jurisdiction thereof to the


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      deprivation of any rights, privileges, or immunities secured by the
      Constitution and laws, shall be liable to the party injured . . . .

42 U.S.C. § 1983.
      “[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982).
      The summary judgment burden of proof shifts somewhat in the case of a
qualified immunity defense, as follows:
            An officer need only plead his good faith, which then shifts the
      burden to the plaintiff, who must rebut the defense by establishing
      that the officer’s allegedly wrongful conduct violated clearly
      established law. The plaintiff bears the burden of negating the
      defense and cannot rest on conclusory allegations and assertions but
      must demonstrate genuine issues of material fact regarding the
      reasonableness of the officer’s conduct.

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2002). See also Young v.
Biggers, 938 F.2d 565, 569 (5th Cir. 1991).
      When the district court denies an official’s motion for summary judgment
predicated upon qualified immunity, this court is essentially reviewing the
district court’s decision that a “certain course of conduct would, as a matter of
law, be objectively unreasonable in light of clearly established law.” Kinney v.
Weaver, 367 F.3d 337, 346 (2004). See also Behrens v. Pelletier, 516 U.S. 299,
312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).
      When a defendant moves for summary judgment on the basis of qualified
immunity, the court must decide: 1) Whether the facts made out a violation of
a constitutional right; and 2) whether that right was “clearly established” at the
time of the defendant’s alleged misconduct so that a reasonable official in the


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defendant’s situation would have understood that his conduct violated that right.
See Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379 (5th Cir. 2009). See also
Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993).
      Before the district court, Latiolais asserted that Griffith conspired with
Officer Gallow, Cravins, and others to “‘deprive her of her rights to custody,
control, and management of her minor son’ which resulted in the actual
deprivation ‘of her constitutionally protected right in parenthood.’”
      As found by the district court, the right of a parent to the care, custody,
control and management of one’s children is well established. See Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). See also Wooley
v. City of Baton Rouge, 211 F.3d 913, 920 (5th Cir. 2000). Also, in Hodorowski
v. Ray, 844 F.2d 1210 (5th Cir. 1988), this court recognized “the most essential
and basic aspect of familial privacy – the right of the family to remain together
without the coercive interference of the awesome power of the state” in a matter
involving child protective services. Id. at 1216.
      The district court also cited the factually similar case of Williams v.
Rappeport, 699 F. Supp. 501, 503 (D. Md. 1988). The Maryland district court
granted summary judgment on the basis of absolute immunity for two court-
appointed professionals, a psychiatrist and a psychologist, who were sued by a
husband for their assistance in a child custody dispute. However, in doing so,
the Maryland court did recognize a colorable substantive due process claim
regarding the deprivation of the plaintiff’s liberty interest in rearing his child.
Id. at 504. “While the outer boundaries of the right to rear one’s child are not
clear, particularly when a parent’s rights have not been completely terminated,
[plaintiff] has alleged a violation of a liberty interest sufficient to withstand
defendants’ pending motion.” Id. at 505.
      The district court here then found that Latiolais had alleged a violation of
her constitutional rights. Further, “[a]s it is undisputed that Roylis Gallow was

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acting in his capacity as a Police Officer for the City of Opelousas and that
Donald Cravins was serving as a Louisiana Senator at the time of the events at
issue, plaintiff has stated a claim under section 1983.”
       As this right has clearly been established pursuant to the cases above, it
could not cease to exist based solely on the manner in which a state actor was
seeking to interfere. Thus, the district court was correct.
       Once the plaintiff has alleged a constitutional violation, the next step is
to decide if the right was clearly established at the time of the alleged
misconduct and whether the defendant's conduct was objectively reasonable. See
Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379 (5th Cir. 2009). See also
Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).
       To establish a civil conspiracy claim under section 1983, Latiolais must
present evidence that the defendants acted jointly and that some overt act that
was done in furtherance of the conspiracy resulted in the deprivation of a
constitutional right. Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). “A
conspiracy may be charged under section 1983 as the legal mechanism through
which to impose liability on all of the defendants without regard to who
committed the particular act, but “a conspiracy claim is not actionable without
an actual violation of section 1983.” Id. (quoting Pfannstiel v. City of Marion,
918 F.2d 1178, 1187 (5th Cir. 1990).
       The U.S. Supreme Court has distinguished between personal- and official-
capacity suits.5 Generally, an official-capacity suit is just another way of


       5
         Gallow appears to have some confusion regarding this. In her argument regarding
Officer Gallow’s immunity as a witness, she repeatedly refers to Latiolais’ claims that Officer
Gallow was acting in the capacity of a police officer as proof that he was not being sued in his
personal capacity. The complaint did not specify which capacity, but the record clearly
establishes, and the district court found, that Gallow was being sued in both capacities.
Additionally, as Hafer states and as quoted below, a personal-capacity suit against Gallow
would still seek to impose liability upon him as a police officer for actions taken under color
of law.

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pleading an action against an entity of which an officer is an agent and are
treated as suits against the State. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358,
116 L.Ed.2d 301 (1991).
      Personal-capacity suits, on the other hand, seek to impose
      individual liability upon a government officer for actions taken
      under color of state law. Thus, “[o]n the merits, to establish
      personal liability in a § 1983 action, it is enough to show that the
      official, acting under color of state law, caused the deprivation of a
      federal right.” While the plaintiff in a personal-capacity suit need
      not establish a connection to governmental “policy or custom,”
      officials sued in their personal capacities, unlike those sued in their
      official capacities, may assert personal immunity defenses such as
      objectively reasonable reliance on existing law.

Id. (Internal marks, citations and emphasis omitted).
Gallow Appeal
      Gallow asserts that the basis for her motion for summary judgment is that
the complaint did not allege any nor was there any actual constitutional
deprivation as a result of any conduct of Officer Gallow. Thus, she asserts that
there is no dispute as to at least one material issue of fact on each claim. Gallow
further asserts that Officer Gallow was entitled to dismissal based on qualified
immunity. Gallow is partially attempting to have this court review whether a
genuine factual dispute exists. However, as stated previously, this court is
prohibited from doing so and is limited to only legal issues. Notwithstanding
this court’s limited jurisdiction, Latiolais did allege a violation of her
constitutional rights, as set out above.
      Latiolais asserts that Officer Gallow used his position as a police officer to
obstruct justice by helping Griffith create evidence of a battery conviction and
providing perjured testimony in the custody proceeding as an allegedly unbiased
witness. He did this, allegedly, to assist Griffith in establishing that Latiolais
was unstable, violent, and unfit.


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      Officer Gallow testified at the January 19, 2006, custody hearing
regarding the incident at the hospital and Latiolais’ behavior, which is quoted
in the Memorandum Ruling. The behavior Officer Gallow described was both
bizarre and violent. Officer Gallow testified again in the custody trial on
January 28, 2008, as to whether he had ever spoken to Griffith on his cell phone.
Officer Gallow denied that he knew Griffith and said he had never spoken to him
by telephone. However, telephone records that were introduced at trial indicate
that dozens of telephone calls were made on Officer Gallow’s cell phone to and
from Griffith’s cell phone from November 3, 2005, through December 2, 2006.
Additionally, the records show an incoming call from Griffith to Officer Gallow
at 7:27 a.m. and a call from Gallows phone to Griffith at 8:05 a.m. on November
30, 2005, the same morning as the hospital incident. Officer Gallow admitted
that he was in possession of his phone that morning. Further, Griffith admitted
in a request for admission that he knew Officer Gallow personally prior to
November 30, 2005.
      At the conclusion of the custody trial, which included Officer Gallow’s
testimony regarding the hospital incident, the court rendered judgment
continuing Latiolais’ limited visitation with Cole until May 2008, after which the
parties would share joint custody.
      As a result of this evidence, the district court found that:
             Latiolais has presented competent summary judgment
      evidence which establishes a genuine dispute of material fact as to
      whether or not Officer Gallow deprived her of her constitutional
      rights. Latiolais correctly observes that Gallow is not entitled to
      qualified immunity if she can prove that he knowingly presented
      false evidence in the custody hearing by denying or failing to
      disclose that he conspired with Griffith to set plaintiff up in a
      confrontational situation which was known to make her angry and
      combative. Viewing the evidence in the light most favorable to
      plaintiff, including the cell phone records of Officer Gallow and
      Griffith’s acknowledgment of his prior relationship with Gallow,


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      both of which controverted [Officer] Gallow’s sworn testimony at the
      custody hearings and trial, the Court finds there exists genuine
      disputes of material fact.

(Citations omitted).
      The district court further found that Gallow’s alternative argument that
Gallow is immune from civil liability as a non-party witness in the custody
proceeding to be without merit. “Such immunity, however, does not protect
Gallow under the allegations in this civil case in which plaintiff claims Gallow’s
testimony at the custody hearing is alleged to be in furtherance of a conspiracy
to deprive her of the custody of her child.” (Citing Young v. Biggers, 938 F.2d
565, 570 (5th Cir. 1991) (Officers are not entitled to qualified immunity where
plaintiff can prove they knowingly presented false information in the affidavit
for his arrest warrant.).
      The record establishes a genuine dispute of material facts as to whether
a reasonable public official in Officer Gallow’s situation would have understood
that his conduct during the course of his conspiracy with Griffith violated
Latiolais’ right in the care, custody and control of Cole.
      Gallow also asserts that all or some of Latiolais’ claims are prescribed, or
outside the statute of limitations. Latiolais asserts and the district court found
that her claims against Officer Gallow arise out of his testimony on January 28,
2008, and that she first became aware of her claims against Cravins on January
9, 2008, during the testimony of Deputy Montgomery, both of which occurred
less than one year prior to the date her lawsuit was filed on January 7, 2009.
Further, the district court found that the continuing tort doctrine is applicable
to Latiolais’ state law claims. The record supports this finding.
Cravins Appeal
      Latiolais further claims that Cravins used his influence as a state senator
when he telephoned Deputy Montgomery in an effort to assist Griffith in


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depriving Latiolais of custody of Cole. Cravins argues that he is entitled to
qualified immunity because his telephone conversation with Deputy
Montgomery did not itself result in a constitutional deprivation and because an
“unsuccessful attempt to incite conduct that could result in a deprivation of a
constitutional right is not actionable” under section 1983.
       Both of these arguments can be rejected by the mere fact that Latiolais
asserts a section 1983 conspiracy claim against Cravins. Regardless of whether
or not Cravins’ actions alone actually caused a constitutional violation, liability
can still be imposed on him through his alleged membership in the conspiracy.
Hale, 45 F.3d at 920–21. To prove a conspiracy under 42 U.S.C. § 1983, a
plaintiff must show: (1) “an agreement between private and public defendants
to commit an illegal act,” and (2) “an actual deprivation of constitutional rights.”
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). In the past, we have
dismissed section 1983 conspiracy claims on an interlocutory appeal from a
denial of qualified immunity where the existence of a conspiracy agreement is
not supported by evidence. See, e.g., Rodriguez v. Neeley, 169 F.3d 220, 221–23
(5th Cir. 1999) (dismissing section 1983 conspiracy claims because the existence
of a conspiracy agreement was supported only through “conclusory
allegation[s]”). Here though, Cravins has not raised the issue of whether there
is evidence establishing an agreement between him and Griffith to violate
Latiolais’ constitutional rights, and that particular issue is, therefore, not before
us on this appeal. Thus, we decline to consider the district court’s ruling on this
issue and we hold that the district court’s result as to Cravins is correct.6

       6
          Cravins also argues that the phone conversation with Montgomery was not made
under color of law. We agree with the district court that there are genuine issues of material
fact about whether the conversation with Montgomery was made under color of law. See
United States v. Classic, 313 U.S. 299, 326 (1941) (stating, in the context of a criminal civil
rights prosecution, that “[m]isuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law, is action taken ‘under
color of’ state law”); Manax v. McNamara, 842 F.2d 808, 812–13 (5th Cir. 1988) (actions by

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                                   No. 11-30423

State Claims
      Both Gallow and Cravins assert that Latiolais’ state law claims should be
dismissed under this court’s pendent jurisdiction or on summary judgment.
However, as the district court properly denied summary judgment on the 1983
claims, the argument regarding pendent jurisdiction fails because the district
court still has supplemental jurisdiction under 28 U.S.C. section 1367. With
regard to dismissal on summary judgment, the same analysis as used in the
section 1983 conspiracy claim applies.
                                 CONCLUSION
      There is sufficient evidence to establish a genuine dispute of material fact
on the issues of qualified immunity properly raised on appeal. Thus, both
Officer Gallow and Cravins are not entitled to qualified immunity on Latiolais’
claim that they deprived her of her constitutional right to the care, custody,
control, and management of her child. Therefore, we affirm the district court’s
denial of Gallow’s and Cravins’ motions for summary judgment.
                                                                      AFFIRMED.




mayor not under color of law where there was no evidence that the mayor “employed the
slightest shred of power of the mayor’s office”).

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