     Case: 16-60684   Document: 00514120501    Page: 1   Date Filed: 08/17/2017




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

                                No. 16-60684                          FILED
                                                                August 17, 2017
                                                                 Lyle W. Cayce
ANGELA DAWN MOODY,                                                    Clerk

             Plaintiff–Appellant,

v.


SCOTT FARRELL, in his Individual Capacity,

             Defendant–Appellee.




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant Angela Moody repeatedly sent mean-spirited
messages to her ex-husband, Defendant–Appellee Scott Farrell. After Farrell
complained to the police, Moody was arrested for felony cyberstalking, a charge
that was later dropped. Moody then sued Farrell and others under 42 U.S.C.
§ 1983, alleging that her First and Fourth Amendment rights had been
violated. The district court granted summary judgment on the ground that
Moody could not prove Farrell was a state actor for purposes of § 1983. For the
reasons stated below, we AFFIRM.
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                                No. 16-60684
                             I. BACKGROUND
      Angela Moody and Scott Farrell had an acrimonious relationship
following their divorce in 2011. They remained in communication with each
other on account of their young daughter, who lived with Moody and visited
Farrell every other weekend. Throughout 2012 and 2013, Moody sent many
mean-spirited messages to Farrell via email, text message, and Facebook.
Many of these messages pertained to child support and Farrell’s visitation
rights. Moody conceded in her deposition, however, that the purpose of other
messages was simply “to be mean,” or “to hurt his feelings.” On several
occasions, including in November 2012, Farrell told Moody to stop sending him
messages unless they pertained to their daughter and warned that further
communication would constitute harassment. Farrell conceded in his
deposition that he too sent “harassing” messages to Moody but stated that he
stopped doing so after January 2013.
      In November 2012, Farrell contacted Officer Tony Cooper of the Lowndes
County Sheriff’s Department via Facebook to discuss his problems with Moody.
Farrell was acquainted with Officer Cooper because one of Farrell’s other ex-
wives used to work at the sheriff’s department. Officer Cooper advised Farrell
to come to the sheriff’s office, where Farrell filed a complaint against Moody
for harassment on November 28, 2012. Either on that date or sometime later,
Farrell brought documentation of the alleged abuse to the sheriff’s office.
Officer Cooper went on leave for several months shortly after reporting
Farrell’s complaint. While Officer Cooper was on leave, Farrell contacted him
via Facebook four or five times to discuss the complaint against Moody; Officer
Cooper instructed Farrell to contact other investigators. Farrell did so, and
brought in further documentation of Moody’s alleged harassment.
      Farrell’s complaint was also reviewed by Lowndes County Prosecutor
Allison Kizer, who decides whether to prosecute misdemeanor cases. She
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determined that the alleged conduct did not constitute misdemeanor
harassment    by     electronic    communication,     which   requires    that   the
communication be obscene, lewd, lascivious, or threatening. See Miss. Code §
97-29-45(a), (b). But, according to Officer Cooper, Kizer told him that Moody’s
conduct did meet the requirements of felony cyberstalking. See Miss. Code §
97-45-15. In relevant part, Mississippi Code § 97-45-15(1)(b) defines
cyberstalking as “[e]lectronically mail[ing] or electronically communicat[ing]
to another repeatedly, whether or not conversation ensues, for the purpose of
threatening, terrifying or harassing any person.”
      After Officer Cooper returned to work, Farrell called the sheriff’s office
several   times    to   tell      him   that   Moody’s   harassment      continued.
At that point, Officer Cooper reviewed Moody’s messages and concluded that
her conduct did violate the law. Officer Cooper wanted to put the case before a
grand jury, but Farrell, according to Officer Cooper, “was not happy with that
and wanted [Moody] to be arrested.” Officer Cooper signed an affidavit in
support of an arrest warrant on November 6, 2013, alleging that Moody
committed felony cyberstalking by sending “numerous text messages and
emails” to Farrell after he told her “to cease emailing and texting him.” Justice
Court Judge Peggy Phillips signed the warrant on November 7, 2013. Moody
turned herself in and was quickly released on her recognizance.
      A preliminary hearing was held before a different justice court judge on
December 17, 2013. Officer Cooper testified and presented the accumulated
documentation of alleged harassment. The justice court subsequently
dismissed the case. According to Moody, the judge noted that “if ex-wives
couldn’t get upset with ex-husbands about not paying child support . . . , the
whole jails here would be filled up with mad ex-wives.”
      Moody filed a complaint against Lowndes County, Officer Cooper, and
Farrell in the Northern District of Mississippi on October 21, 2014. Her claims
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                                     No. 16-60684
against Officer Cooper and Farrell alleged violations of the First, Fourth, and
Fourteenth Amendments. Moody also alleged state law claims, including abuse
of process, against Farrell. Her claims against the county related to bail issues.
The district court granted summary judgment in favor of all three defendants.
Regarding Farrell, the district court found that Moody had failed to put forth
sufficient facts showing that Farrell was a state actor for purposes of § 1983.
Likewise, the district found insufficient evidence in support of Moody’s abuse-
of-process claim against Farrell. The district court held that Moody had waived
her remaining state law claims against Farrell. Moody timely appealed.
                                  II. DISCUSSION
      On appeal, Moody challenges the district court’s dismissal of her § 1983
claim against Farrell. 1 To prevail on this claim, Moody must show both that
Farrell (1) deprived her of her constitutional rights and (2) acted “‘under color’
of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting 42 U.S.C.
§ 1983); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Moody
argues that Farrell was a state actor by virtue of acting jointly with Officer
Cooper, and that Farrell violated the Fourth Amendment by causing her arrest
without probable cause and the First Amendment because the arrest was
based on protected speech. Farrell argues that Moody has failed to put forth
sufficient evidence showing joint action between him and Officer Cooper, that
there was probable cause for her arrest, and that Moody’s harassment was not
protected speech. In addition, Farrell asserts that he is immune from suit.
Because we agree with the district court that Moody has failed to show that
Farrell acted under color of state law, we need not address the parties’ other
arguments.



      1  Moody has abandoned her state law claims against Farrell by failing to brief them
before this Court. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
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                                  No. 16-60684
A.    Standard of Review
      This Court “review[s] a grant of summary judgment de novo, applying
the same standard that the district court applied.” Smith v. Reg’l Transit
Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is appropriate “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). A
genuine dispute of material fact exists if the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court “must view the evidence
introduced and all factual inferences from the evidence in the light most
favorable to the party opposing summary judgment,” but the nonmoving party
“may not rest on mere conclusory allegations or denials in its pleadings.” Smith
v. Reg’l Transit Auth., 827 F.3d at 417 (quoting Hightower v. Tex. Hosp. Ass’n,
65 F.3d 443, 447 (5th Cir. 1995)).
B.    Analysis
      Moody concedes that Farrell is a private citizen. “Private individuals
generally are not considered to act under color of law,” Ballard v. Wall, 413
F.3d 510, 518 (5th Cir. 2005), but “private action may be deemed state action
when the defendant’s conduct is ‘fairly attributable to the State,’” Priester v.
Lowndes County, 354 F.3d 414, 423 (5th Cir. 2004) (quoting Bass v. Parkwood
Hosp., 180 F.3d 234, 241 (5th Cir. 1999)). To establish fair attribution,
      the plaintiff must show: (1) that the deprivation was caused by the
      exercise of some right or privilege created by the state or by a rule
      of conduct imposed by the state, or by a person for whom the state
      is responsible, and (2) that the party charged with the deprivation
      may fairly be said to be a state actor.
Id. (citing Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988)). One way a
private citizen may be a state actor is if she “is involved in a conspiracy or

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                                  No. 16-60684
participates in joint activity with state actors.” Ballard, 413 F.3d at 518 (citing
Adickes, 398 U.S. at 150–52). The district court held that there was insufficient
evidence to show a conspiracy or joint action between Farrell and the Lowndes
County Sheriff’s Department. We agree.
      “Deciding whether a deprivation of a protected right is fairly attributable
to the State ‘begins by identifying the specific conduct of which the plaintiff
complains.’” Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005)
(quoting Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 51 (1999)). Here, Moody
complains that Farrell persuaded Officer Cooper to sign the affidavit in
support of the arrest warrant. Officer Cooper himself testified that he wanted
to send the case to a grand jury, but that Farrell “was not happy with that and
wanted [Moody] to be arrested.” Officer Cooper also testified that Farrell
contacted him many times—both over Facebook and by telephone—about the
case. According to Moody, this evidence supports the inference that “Farrell
used the apparatus of the state to cause Deputy Cooper to make an arrest
which he did not otherwise think appropriate.”
      Moody also points to the affidavit of her father, Thad Moody. The
affidavit asserted that when Thad Moody accompanied his daughter to the
sheriff’s department, Officer Cooper told him: (1) Farrell called Officer Cooper
three or four times a day to see whether Moody had been arrested yet; (2)
Farrell stated, “I want the bitch arrested”; (3) Farrell threatened to tell the
newspaper about the sheriff’s department’s failure to give him justice; and (4)
Officer Cooper wanted to relieve the pressure Farrell was placing on the
sheriff’s department. Moody argues that the affidavit is admissible as
containing admissions by party opponents or statements of a then-existing
state of mind. Fed. R. Evid. 801(d)(2)(A), 803(3). Federal Rule of Evidence
801(d)(2)(A) only covers statements made by the party against whom the
statements are offered. Because the statements in Thad Moody’s affidavit were
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                                  No. 16-60684
made by Officer Cooper, they are not admissible as opposing party admissions
against Farrell. Regarding Federal Rule of Evidence 803(3), the first three
statements recount what Officer Cooper heard prior to seeking Moody’s arrest
and therefore do not relate to his state of mind when he made the statements
to Thad Moody. Only the last statement could be construed as reflecting Officer
Cooper’s then-existing state of mind. At most, Thad Moody’s affidavit is
admissible only to show that Officer Cooper arrested Moody in order to relieve
the pressure Farrell was placing on the sheriff’s department.
      It is well-established that “[a] private party does not act under color of
state law when she merely elicits but does not join in an exercise of official
state authority.” Daniel, 839 F.2d at 1130 (quoting Auster Oil & Gas, Inc. v.
Stream, 764 F.2d 381, 388 (5th Cir. 1985)). For this reason, evidence that a
private citizen reported criminal activity or signed a criminal complaint does
not suffice to show state action on the part of the complainant in a false arrest
case. Id. The plaintiff must further “show that the police in effecting the arrest
acted in accordance with a ‘preconceived plan’ to arrest a person merely
because he was designated for arrest by the private party, without independent
investigation.” Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1079 (5th
Cir. 1985) (quoting Hernandez v. Schwegmann Bros. Giant Supermarkets, 673
F.2d 771, 772 (5th Cir. 1982) (per curiam)). For example, in Smith v. Brookshire
Bros., Inc., the plaintiffs showed that pursuant to a prearranged plan, the
defendant, a grocery store, “could have people detained [for shoplifting] merely
by calling the police and designating the detainee.” 519 F.2d 93, 94 (5th Cir.
1975) (per curiam). In Bartholomew v. Lee, on the other hand, the fact that “the
plaintiffs were arrested in part . . . at the request of the [mall] security
personnel, and not wholly based on any independent observations of the
officers,” was not enough to show joint action between the mall and the police.
889 F.2d 62, 63 (5th Cir. 1989) (alteration and emphasis in original).
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                                   No. 16-60684
        As Farrell argues, the record indisputably shows that the Lowndes
County Sheriff’s Department conducted an investigation and independently
determined that probable cause existed to arrest Moody. First, Officer Cooper
filed an investigative report in November 2012. Cf. Morris v. Dillard Dep’t
Stores, Inc., 277 F.3d 743, 750 (5th Cir. 2001) (noting that an “officer writing
his own report” is “evidence of a proper investigation”). Second, Officer Cooper
testified that he reviewed the allegedly harassing text messages and emails
Moody sent to Farrell and concluded that Moody did commit felony
cyberstalking. Third, a justice court judge agreed that probable cause existed
and signed an arrest warrant based on Officer Cooper’s affidavit. Cf. Glotfelty
v. Karas, 512 F. App’x 409, 415 (5th Cir. 2013) (per curiam) (noting that a state
court judge’s issuance of an attachment order for the plaintiff’s arrest was
“inconsistent” with the plaintiff’s theory that the defendants had a
preconceived plan to arrest the plaintiff). Fourth, from beginning to end, the
investigation took almost a year—far longer than the nearly instantaneous
arrests carried out pursuant to the prearranged plan in Smith v. Brookshire
Bros.
        In light of the undisputed facts that Officer Cooper investigated Farrell’s
allegations for almost a year and that two state officials found probable cause,
it is reasonable to infer, at most, that Farrell pressured Officer Cooper to
pursue arrest. In this way, Farrell, like the defendant in Bartholomew,
influenced the actions of the police but did not determine them. A jury could
not reasonably infer that Farrell’s pressure destroyed the independence of
Officer Cooper’s investigation. Accordingly, Moody has failed to show that the
police arrested her “merely because [s]he was designated for arrest by [Farrell],
without independent investigation.” Sims, 778 F.2d at 1079. The district court
correctly granted summary judgment on this ground.


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                             No. 16-60684
                          III. CONCLUSION
     For the foregoing reasons, the district court’s grant of summary
judgment against Moody is AFFIRMED.




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