                                                 United States Court of Appeals
                                                          Fifth Circuit
                                                       F I L E D
         IN THE UNITED STATES COURT OF APPEALS          June 25, 2003

                   FOR THE FIFTH CIRCUIT           Charles R. Fulbruge III
                                                           Clerk


                       No. 01-31017



GERALD BURGE,
                           Plaintiff-Appellee-Cross-Appellant,


     versus


ST. TAMMANY PARISH; ET AL,
                           Defendants,


RODNEY JACK STRAIN, Sheriff of St. Tammany Parish,
                           Defendant-Appellant-Cross-Appellee.



GERALD BURGE,
                           Plaintiff-Appellee–Cross-Appellant,


     versus


PATRICK CANULETTE, ETC.; ET AL,
                           Defendants,


DEBRA MCCORMICK,
                           Defendant-Cross-Appellee.




     Appeals from the United States District Court
         for the Eastern District of Louisiana
Before GARWOOD, JONES, and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

      Appellant Rodney Jack Strain, the Sheriff of St. Tammany

Parish, Louisiana, appeals the entry of judgment against him in his

official capacity, under 42 U.S.C. § 1983, for depriving the

appellee, Gerald Burge, of his right to a fair trial.    Burge cross-

appeals the dismissal of his state-law tort claim against Sheriff

Strain for spoliation of evidence.          We reverse the entry of

judgment against Sheriff Strain and affirm the dismissal of Burge’s

state tort claim.

                     Facts and Proceedings Below

      In June of 1991, the appellee, Gerald Burge, brought suit

under section 1983 against a litany of defendants, including the

then sheriff of St. Tammany Parish, Patrick Canulette, for the

deprivation of his constitutional rights to due process and a fair

trial. Since its filing in 1991, Gerald Burge’s section 1983 claim

has come before this court on appeal on three separate occasions.

It is before us now for the fourth.

A.   Factual Background

      The general origins of the present appeal lie in a bizarre

concatenation of circumstances beginning, over twenty years ago,

with the discovery of the body of Douglas Frierson under a bridge

in   St.   Tammany   Parish,   Louisiana.    The   details   of   those

circumstances, however, are described at length in two prior

                                   2
published opinions, Burge v. Parish of St. Tammany, 996 F.2d 786

(5th Cir. 1993) (Burge I), and Burge v. Parish of St. Tammany, 187

F.3d 452 (5th Cir. 1999) (Burge III), and for brevity’s sake we set

forth here only an abbreviated version of the factual history

narrated at length in Burge III.

      Sometime between midnight and four o’clock a.m. on October 17,

1980, Douglas Frierson was shot to death and his body abandoned

beneath a bridge in St. Tammany Parish.                That same day, the Chief

of   Detectives     of     the     St.   Tammany      Parish     Sheriff’s    Office,

Lieutenant   E.L.        Hermann     Jr.,       assigned   two    Sheriff’s   Office

detectives, Gary Hale and Clark Thomas, to investigate Frierson’s

murder.

      In the course of the ensuing investigation, Detective Hale

took a number of statements from various individuals, the most

important of which for the purposes of the present appeal was a

statement taken from Douglas Frierson’s mother, Jean Frierson.                    In

her first statement to Hale, taken on October 17, 1980, Jean

Frierson reported that at midnight on the night of his murder,

Douglas Frierson came to her home where she served him a meal of

pancakes. She told Hale that after he had finished eating, Douglas

Frierson had been picked up at her house by someone in a car, but

that she saw neither the vehicle nor the person or persons who came

to pick up her son.

      Gerald Burge and Joe Pearson were eventually indicted for the


                                            3
murder of Douglas Frierson.                   In April of 1984, Burge’s counsel

filed a     Brady     motion         requesting      that   the    St.   Tammany     Parish

District Attorney’s Office, then headed by District Attorney Marion

Farmer, deliver to him all exculpatory evidence in the state’s

possession.    The District Attorney’s Office responded, and certain

documents were delivered to Burge’s counsel; those documents,

however, did        not       include    the   October      17th    statement       of   Jean

Frierson to Gary Hale in which she reported that she could not

identify the person or persons with whom her son departed on the

night of his murder.

      In January of 1985, and before Burge’s murder charge went to

trial, Walter Reed replaced Marion Farmer as District Attorney for

St. Tammany Parish.            In preparing to bring Burge’s case to trial,

however, the new administration discovered that its copy of the

Sheriff’s    investigatory             file    was    missing.       Accordingly,         the

District Attorney began the process of reconstructing its file and

requested     that        a     second    copy       of     the    Sheriff’s    original

investigatory file be delivered for use at trial.                        A copy of that

file was delivered to the District Attorney’s Office.                           However,

according to the testimony of the prosecuting attorney in the case,

Paul Katz, the copy of the file delivered by the Sheriff’s Office

in   1985   also     did       not    contain      Jean     Frierson’s    October        17th

statement.

      At    Burge’s       trial,      Jean     Frierson      testified    in    a    manner



                                               4
contradictory      to    her   original      statement     to     Gary     Hale.

Specifically, Jean Frierson testified that she saw her son leave

with Gerald Burge on the night of the murder.            Without the benefit

of her original statement to Detective Hale, Burge’s counsel was

unable to sufficiently impeach Jean Frierson’s testimony, and in

September, 1986, Burge was convicted for the murder of Douglas

Frierson.

      According to the record in the present case, the existence of

the   original    Jean   Frierson    statement     eventually    came     to   the

attention of Burge’s counsel, in part, through the efforts of

Lieutenant Hermann of the St. Tammany Parish Sheriff’s Office.

According   to     Lt.   Hermann’s    testimony     in   the    present    case,

immediately      after   Burge’s    1986   trial   for   Frierson’s      murder,

Detective Hale approached Lt. Hermann to discuss the recent trial.

Hermann testified that during the course of his conversation with

Hale, Hale showed Lt. Hermann certain documents relating to the

original murder investigation that Hale had stored in the trunk of

his car, including certain original documents that Lt. Hermann

believed should have been delivered to the District Attorney’s

Office.   When Lt. Hermann asked Hale why the documents were in his

car, Hale reportedly replied, “If I would have turned this in, it

would have caused us to lose—it could have caused us to lose the

case.”

      In 1990, after evidence of Jean Frierson’s original statement

came to light, and four years after his original conviction, Burge

                                       5
filed for and was granted state post-conviction relief on the

grounds that Jean Frierson’s original October 17th statement was

exculpatory evidence that should have been produced for the defense

under the rule of Brady v. Maryland, 83 S.Ct. 1194 (1963).    Upon

obtaining state post-conviction relief, Burge was tried a second

time for Douglas Frierson’s murder and in 1992 was acquitted of all

charges.

B.   Procedural History

      The procedural history of the present appeal is even more

anfractuous than its factual background.   Burge filed this section

1983 action in 1991, claiming that members of the Sheriff’s Office

and the District Attorney’s Office had conspired to deprive him of

the right to a fair trial by suppressing Jean Frierson’s October

17th statement.   His initial complaint named as defendants Sheriff

Patrick Canulette individually, the St. Tammany Parish Sheriff’s

Office, Detective Gary Hale, the St. Tammany Parish District

Attorney’s Office, District Attorney Walter Reed individually, and

special prosecutor Paul Katz.   After three detours to this court,

however, see Burge v. Parish of St. Tammany, 996 F.2d 786 (5th Cir.

1993) (Burge I), Burge v. St. Tammany Parish Sheriff’s Office, No.

97-00044 (5th Cir. Apr. 14, 1997) (Burge II) (unpublished), Burge

v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999) (Burge III),

only Gary Hale and Sheriff Patrick Canulette, in his official




                                 6
capacity, remained as defendants in Burge’s original action.1

      On January 1, 1996, Burge filed a second action against the

Sheriff and Captain Debra McCormick asserting a state-law claim for

spoliation of evidence.         That suit was consolidated with Burge’s

original suit in February, 1996, and on June 22, 2000, the district

court     issued   an   order   granting     summary    judgment      on   Burge’s

spoliation of evidence claim to the defendants, Captain McCormick

and Sheriff Strain.        Trial on Burge’s remaining original claims

from his 1991 civil rights suit began on May 7, 2001, and on May 21

a jury returned a verdict in favor of Burge on his section 1983

claim against both Sheriff Strain and Gary Hale.                   Sheriff Strain

moved for     judgment    as    a   matter   of   law   at   the   close   of   the

plaintiff’s case-in-chief, at the close of all the evidence, and

again after the entry of judgment against him.

      Sheriff Strain now appeals both the denial of his motions for

judgment as a matter of law as well as two evidentiary rulings of

the district court.         Burge cross-appeals the grant of summary

judgment on his spoliation of evidence claim.

                                    Discussion

A.   Section 1983

      1.    Deliberate Indifference: Pattern of Violations

      We review de novo the district court’s ruling on Sheriff


      1
        On remand from Burge III, Rodney Strain, the new sheriff
of St. Tammany Parish, was substituted as a defendant for the
previous sheriff, Patrick Canulette.

                                         7
Strain’s motion for judgment as a matter of law.               Judgment as a

matter of law is proper where “there is no legally sufficient

evidentiary basis for a reasonable jury to find for [a] party on

[an] issue.”    FED. R. CIV. P. 50(a)(1).     Reviewing all the evidence

in the record, we draw “all reasonable inferences and resolv[e] all

credibility determinations in the light most favorable to the non-

moving party,”    Miss. Chemical Corp. v. Dresser-Rand Co., 287 F.3d

359, 365 (5th Cir. 2002), and will reverse “only if no reasonable

jury could have arrived at the verdict.”           Id.

      Liability under section 1983 attaches where a deprivation of

a right protected by the Constitution or by federal law is caused

by an official policy.        An official policy can be found in two

forms:

      “1. A policy statement, ordinance, regulation, or
      decision that is officially adopted and promulgated by
      the municipality’s lawmaking officers or by an official
      to whom the lawmakers have delegated policy-making
      authority; or
      2. A persistent, widespread practice of city officials or
      employees, which, although not authorized by officially
      adopted and promulgated policy, is so common and well
      settled as to constitute a custom that fairly represents
      municipal policy.” Bennett v. City of Slidell, 735 F.2d
      861, 862 (5th Cir. 1984) (per curiam).

A claim of a violation of section 1983 pursuant to the latter form

of   official   policy—a    persistent,    widespread     practice   of   city

officials or employers—may in an appropriate case also encompass

allegations     that   a   policymaker    failed   to    act   affirmatively,

including a failure adequately to train a subordinate.


                                     8
      According to Burge, the records-keeping practices at the

Sheriff’s Office caused the Brady violation he suffered in his

first      trial   insofar    as    those   procedures    permitted        certain

statements, including Jean Frierson’s exculpatory statement, to be

omitted from the copy of the investigatory file that was sent from

the Sheriff to the District Attorney’s Office before Burge’s 1986

trial.       Specifically, Burge maintains that the constitutional

violation he suffered resulted from two claimed deficiencies in the

St.   Tammany      Parish   Sheriff’s   Office,     namely:    (1)   an   alleged

longstanding       practice    of    failing   to    deliver     all      material

information uncovered during the course of an investigation to the

District Attorney; and (2) assertedly inadequate training in the

maintenance and transfer of sheriff’s records.

          Knowledge on the part of a policymaker that a constitutional

violation will most likely result from a given official custom or

policy is a sine qua non of municipal liability under section

1983.2     Thus, for municipal liability to attach under section 1983

a plaintiff must demonstrate “[a]ctual or constructive knowledge of

such custom . . . attributable to the governing body of the

municipality or to an official to whom that body had delegated

policy-making authority.”           Bennett v. City of Slidell, 728 F.2d


      2
        The requirement that a policymaker be charged with actual
or constructive knowledge of the policy that inflicts the alleged
injury follows from the principle that respondeat superior is
unavailable against a municipality under § 1983. See Pineda v.
City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).

                                        9
762, 862 (5th Cir. 1984).       Where an official policy or practice is

unconstitutional     on   its   face,    it   necessarily    follows    that   a

policymaker was not only aware of the specific policy, but was also

aware that a constitutional violation will most likely occur.              See

Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).

Where, however, as in the present case, an alleged policy or custom

is   facially     innocuous,    establishing     the   requisite       official

knowledge requires that a plaintiff establish that an official

policy was “promulgated with deliberate indifference to the ‘known

or   obvious    consequences’   that     constitutional     violations   would

result.”   Id. at 579.

      The knowledge requirement applies with equal force where a

section 1983 claim is premised on a failure to train or to act

affirmatively.     Thus, an official is liable under section 1983 for

a failure to train only where the plaintiff establishes that: “(1)

the [official] failed to train or supervise the officers involved;

(2) there is a causal connection between the alleged failure to

supervise or train and the alleged violation of the plaintiff’s

rights; and (3) the failure to train or supervise constituted

deliberate indifference to the plaintiff’s constitutional rights.”

Thompson v. Upshur County, 245 F.3d 450, 459 (5th Cir. 2001); see

also City of Canton v. Harris, 109 S.Ct. 1197, 1204 (1989) (“The

inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate


                                        10
indifference to the rights of persons with whom the police come

into contact.”).

     Both    of    Burge’s   theories,        therefore,       required    proof    of

deliberate indifference. And just as proof of a custom or practice

requires more than a showing of isolated acts, proof of deliberate

indifference, generally requires a showing “of more than a single

instance of the lack of training or supervision causing a violation

of constitutional rights.”           Thompson, 245 F.3d at 459.                 Rather,

deliberate       indifference   generally       requires       that   a    plaintiff

demonstrate “at least a pattern of similar violations” arising from

training that is so clearly inadequate as to be “obviously likely

to result in a constitutional violation.”                Id.

     There is no question in this case that the Sheriff of St.

Tammany Parish is a final policymaker or that Burge suffered a

Brady violation in his original trial and conviction for the 1980

murder of Douglas Frierson.          And although it is disputed whether

the evidence suffices to show that the Sheriff’s Office, rather

than the District Attorney’s, was responsible for the loss of the

key statements before Burge’s 1986 criminal trial, we assume for

present purposes that the evidence suffices to show that, as Burge

asserts,    the    Sheriff’s    Office    failed    to     transfer       the   entire

investigatory file to the District Attorney and that such failure

was the cause of the Brady violation.             The issue on appeal is thus

narrowed    to     whether   Burge    presented     sufficient        evidence      to


                                         11
establish knowledge or deliberate indifference to the likelihood of

a constitutional violation on the part of the Sheriff. We conclude

that he did not.

     Burge maintains that three pieces of evidence presented at

trial were    sufficient     to   establish   a   pattern   or   practice   of

constitutional violations from which a jury could infer that the

Sheriff had been deliberately indifferent to Burge’s constitutional

rights.   First, Burge relies on the testimony of Mario Arthur, an

investigator with the St. Tammany Parish District Attorney’s Office

at the time of Burge’s first murder trial.          Arthur testified that,

at times, he had experienced difficulties in receiving supplemental

reports from the Sheriff’s Office.        Specifically, Arthur testified

that if the Sheriff’s Office created supplemental reports in a case

after the original investigatory file had been transferred to the

District Attorney’s Office, copies of those reports were not always

automatically delivered to the District Attorney and that he could

obtain them, therefore, only by specific request.                Arthur also

testified    that   if   a   file   contained     no   indication    that   a

supplemental report had been filed, he would not necessarily know

to request the supplemental reports.          Second, Burge points to the

testimony of Walter Reed, the St. Tammany Parish District Attorney

at the time of Burge’s 1986 trial.        Reed testified that in isolated

cases the District Attorney’s Office either might not be able to

locate documents or might discover that the Sheriff’s Office had

not delivered certain documents. Finally, Burge relies on evidence

                                     12
that the Sheriff did not have a practice of maintaining a log

documenting which statements had been delivered to the District

Attorney.

       This evidence, whether considered individually or taken as a

whole,    however,    is   not    sufficient    to   establish   deliberate

indifference or knowledge on the part of the Sheriff that a Brady

violation would be a highly likely consequence of the manner in

which his office managed its records or transferred those records

to the District Attorney.        Cf. Brown v. Bryan County, OK, 219 F.3d

450, 461 (5th Cir. 2000).        To prevail on a Brady claim, a defendant

must “demonstrate that: (1) the prosecution suppressed evidence;

(2) the evidence was favorable to him; and (3) the evidence was

‘material either to guilt or punishment.’”           Vega v. Johnson, 149

F.3d 354, 363 (5th Cir. 1998) (quoting Brady v. Maryland, 83 S.Ct.

1194,    (1963)).      Evidence that the District Attorney’s Office

occasionally had to request documents from the Sheriff does not

establish that documents were eventually withheld from a defendant

any more than evidence that documents may be difficult to find or

that documents are occasionally misplaced establishes a pattern of

failing to disclose exculpatory evidence. District Attorney Reed’s

and Mario Arthur’s testimony establishes, at best, only the first

two prongs of a Brady claim; their testimony does not demonstrate

that    any   given   document    was   ever   actually   withheld   from   a

defendant, let alone that any given document that might have been


                                        13
withheld was actually material to a specific defendant’s guilt or

punishment.      Moreover,     neither         Arthur   nor   Reed     were   able   to

identify any other case where materials gathered by the Sheriff

were withheld from the District Attorney.

     Burge’s contention that the Sheriff’s failure to maintain a

log of   all    documents     sent   to    the     District      Attorney’s    Office

establishes deliberate indifference also fails.                   Where it was the

Sheriff’s    policy   to    transfer      copies    of    all    documents     in    his

possession to the District Attorney, the importance of a log is not

altogether     clear.3      Moreover,     even     if    Burge    is   correct      that

maintaining such a log might have been an effective policy measure,

its absence does not rise to the level of deliberate indifference.

Debra McCormick, the Sheriff’s deputy in charge of maintaining

records, did testify that she had received no formal records-

keeping training.        McCormick also testified, however, that she had

received on-the-job training, and Burge presented no evidence

tending to show that such on-the-job training was inadequate, nor

did he present evidence of any specific additional training that

McCormick or the employees of the Sheriff’s records room should

     3
        Multiple witnesses testified that it was the practice and
policy of the Sheriff’s Office to deliver all investigatory
documents, materials and evidence in its possession to the
District Attorney. No Sheriff’s Office employee testified that
they did not understand this to be the office policy and
practice; no witness testified that there was any other or
contrary policy or practice; no witness testified that Sheriff’s
Office employees, or any of them, were or considered themselves
to be free to do otherwise or to withhold such documents,
materials or evidence from the District Attorney.

                                          14
have received.     Cf. Pineda v. City of Houston, 291 F.3d 325, 333

(5th Cir. 2002).       In addition, Burge failed to demonstrate that

McCormick, or any other records-room employee, was unaware of the

importance   of    delivering       all    investigatory        materials    to   the

District Attorney.          Cf. Pineda, 291 F.3d at 333 (noting that a

plaintiff had failed to show that police officers were so untrained

as to be unaware that certain warrantless searches violated the

Fourth Amendment).      On the contrary, McCormick testified that she

was familiar with the importance of delivering all evidence to the

District Attorney.

     Finally,     in   an    attempt      to   establish    a   pattern     of   Brady

violations, Burge refers, for the first time on appeal, to two

cases arising out of St. Tammany Parish that involved a Brady

violation: Faulkner v. Cain, 133 F.Supp.2d 449 (E.D. La. 2001), and

Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir. 1993).                These cases,

however, dealt with Brady violations caused by the St. Tammany

Parish District Attorney’s Office, not by the Sheriff’s Department,

and they are, therefore, insufficient to demonstrate deliberate

indifference on the part of the Sheriff.              Moreover, even if these

cases were adequate to establish a pattern of constitutional

violations   sufficient        to   show       deliberate    indifference,        they

constitute evidence that was not submitted to the jury and that we

may not, therefore, consider for the first time on appeal.                        See

Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.


                                          15
1999) (“An appellate court may not consider new evidence furnished

for the first time on appeal . . . .”).4

     After thorough review of the record, we conclude that Burge

failed to present sufficient evidence to impose section 1983

liability on the Sheriff.

     2.   Deliberate Indifference: Single-Incident Exception

     Burge, however, also argues that even if the evidence is

insufficient to establish a pattern of constitutional violations,

the jury verdict in his favor should be upheld on the grounds that

his case falls within the single-incident exception of Brown v.

Bryan County, 219 F.3d 450 (5th Cir. 2000), pet. for reh’g en banc

denied, 235 F.3d 944 (5th Cir. 2000).       That exception recognizes

that in a limited set of cases, a plaintiff, unable to show a

pattern of constitutional violations, may establish deliberate

indifference by “showing a single incident with proof of the

possibility   of   recurring   situations   that   present    an   obvious

potential for violation of constitutional rights.”           McClendon v.

City of Columbia, 258 F.3d 432, 442 (5th Cir. 2001).

     The single incident exception, however, is a narrow one, and

one that we have been reluctant to expand. See Pineda v. City of



     4
      We also note that the Cain case was tried in the Eastern
District of Louisiana, as was the instant case, and the opinion
in Cain was handed down approximately three months before trial
commenced in the instant case. This court’s opinion in the
Whitley case was handed down approximately eight years before
trial in the case at bar.

                                  16
Houston,    291   F.3d   325,   334–35    (5th   Cir.   2002)   (“Charged   to

administer a regime without respondeat superior, we necessarily

have been wary of finding municipal liability on the basis of             [the

single-incident]     exception    for     a   failure   to   train   claim.”).

Accordingly, the exception will apply only where the facts giving

rise to the violation are such that it should have been apparent to

the policymaker that a constitutional violation was the highly

predictable consequence of a particular policy or failure to train.

See Bryan County, 219 F.3d at 461.

     It is not reasonably inferable from the evidence in this case

that a Brady violation was a highly probable consequence of the

Sheriff’s policies.      Unlike the facts of Bryan County, there is no

evidence in the present case that the employees of the Sheriff’s

records room had a reputation for recklessness, or that the on-the-

job training those employees received was inadequate.                Nor do we

accept Burge’s argument that the single-incident exception should

be expanded based on the latent nature of a Brady claim.                    The

frequency with which defendants’ assert Brady violations belies

Burge’s claim that Brady violations are inordinately difficult to

discover.    See, e.g., Richard A. Rosen, Disciplinary Sanctions

Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L.

REV. 693, 738 (1987) (noting that “[a]lthough there are certainly

many cases in which Brady-type misconduct is not uncovered, the

motivation for a criminal defendant to challenge a conviction on

                                     17
due process grounds and the large number of these cases actually

litigated ensure that there is a significant possibility that the

misconduct will be discovered”).      We decline, therefore, to extend

the single-incident exception to the present case, and Burge is

accordingly left with the burden of showing deliberate indifference

by establishing proof of a pattern of similar violations, a burden

he has been unable to carry.       See supra Part II(A)(2).

      Because Burge failed to establish the existence of a single

prior Brady violation, let alone demonstrate a pattern of similar

Brady violations sufficient to demonstrate deliberate indifference

on the part of the Sheriff, we find that no reasonable jury could

have concluded that Sheriff Strain in his official capacity was

deliberately   indifferent    to   Burge’s   right   to   a   fair   trial.

Accordingly, we reverse the judgment against Sheriff Strain and

therefore do not reach the remainder of the Sheriff’s arguments on

appeal.

B.   Spoliation of Evidence

      On his cross-appeal, Burge challenges the dismissal on summary

judgment of his state-law spoliation of evidence claim against

Sheriff Strain and Debra McCormick.      Between 1991, the date of the

filing of Burge’s civil suit, and 1995, the original paper copy of

the Frierson murder investigatory file was destroyed as part of a

routine purging of old files.        Well before the purging process

began and unrelated to it, the complete original file was produced


                                    18
in the state district court in June 1990 and was copied by the

Sheriff’s Office for the District Attorney in 1990.                 The District

Attorney then made a copy of his copy and provided it to Burge.

The counsel for the Sheriff’s Office had a copy of the original

file made and provided it to plaintiff’s counsel in 1991.                        The

Sheriff’s Office photographed the entire original file on microfilm

and made a duplicate of the microfilm, both of which remain in the

Sheriff’s Office, a copy of each having been furnished plaintiff’s

counsel.    Burge has pointed to nothing missing from any of these

copies.

      Burge maintains, without reasoned explanation or evidentiary

support,    that because of lack of access to the original file, he

is unable to establish not only exactly which documents were not

delivered to the District Attorney’s Office in 1986, but also who,

besides    Detective    Hale,    might    have     been     responsible    for   the

omission of certain statements from the copy of the file that was

made for the District Attorney in 1986.

      We review a grant of summary judgment de novo.                      Young v.

Equifax Credit Info. Servs. Inc., 294 F.3d 631, 635 (5th Cir.

2002).    “Summary judgment is proper if, after adequate opportunity

for    discovery,       the     pleadings,         depositions,     answers       to

interrogatories,       and    admissions      on    file,    together     with   any

affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party is


                                         19
entitled to judgment as a matter of law.”    Id.   The moving party

bears the burden of pointing to an absence of evidence to support

the nonmoving party’s case, Celotex Corp. v. Catrett, 106 S.Ct.

2548, 2554 (1986), and we will uphold a grant of summary judgment

where the nonmovant is unable, in turn, to point to any evidence in

the record that would sustain a finding in the nonmovant’s favor on

any issue on which he bears the burden of proof at trial.    Id. at

2252–53.

     The Louisiana tort of spoliation of evidence provides a cause

of action for an intentional destruction of evidence carried out

for the purpose of depriving an opposing party of its use.   Pham v.

Contico Int’l, Inc., 759 So.2d 880 (La. App. 5 Cir. 3/22/00).5

After reviewing the summary judgment record we agree with the

district court’s conclusion that Burge presented no evidence that

the Sheriff intentionally destroyed the original file for the

purpose of depriving Burge of its use.      See Pham, 759 So.2d at

883–84 (holding that intent is a necessary element of a claim for

spoliation of evidence).   Burge cites no evidence, either in his

memorandum in opposition to the defendants’ motion for summary

judgment or in his brief on appeal, tending to show that the


     5
        Burge attempts to show, relying on Guillory v. Dillard’s
Dep’t Store, Inc., 777 So.2d 1 (La. App. 3 Cir. 10/11/00), that
the tort of spoliation of evidence may also be based on the
negligent destruction of evidence. The language in Guillory upon
which Burge relies, however, is dicta, and does not support the
proposition that a spoliation claim can be grounded in
negligence.

                                20
Sheriff’s Office intentionally destroyed the Frierson murder file

for such a purpose.    Nor is there any evidence of any harm to

Burge.   We conclude that the district court correctly granted the

     defendants’ motion for summary judgment on Burge’s spoliation

of evidence claim.

                            Conclusion

     For the foregoing reasons, we REVERSE the district court’s

entry of judgment against Sheriff Strain in his official capacity

and AFFIRM the grant of summary judgment on Burge’s state-law

spoliation of evidence claim.

                         REVERSED IN PART;

                         AFFIRMED IN PART.




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