     Case: 16-31188      Document: 00514146959         Page: 1    Date Filed: 09/07/2017




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

                                      No. 16-31188
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 7, 2017

LISA HERNANDEZ,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

EARL THERIOT, Individually and in his capacity as the Chief of Police of the
Town of Sorrento; TOWN OF SORRENTO,

              Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:14-CV-42


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In this case we decide whether the district court erred when it held that
Sorrento Police Chief Earl Theriot is not liable to Lisa Hernandez for
intentional infliction of emotional distress (“IIED”) or false imprisonment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                         No. 16-31188
                                                I.
      On November 1, 2013, Hernandez passed out drunk outside an antique
store in Sorrento, Louisiana. In response to a 911 call reporting Hernandez’s
inebriated state, Theriot took her into custody. Theriot drove Hernandez to her
house, but instructed her to remain quiet while he called dispatch and falsely
reported dropping her off. He then transported Hernandez to the police station
in his police car. While en route, Theriot sexually assaulted Hernandez,
groping her chest and telling her it was her “lucky day” because “he was going
to do [her] a favor and [she] was going to do him a favor.” Theriot took her to
his office, where she remained for some time. Although Hernandez could sit
outside the back door to smoke and she used his telephone to call her boyfriend
several times when Theriot left the office, Hernandez “believed she could not
leave based on the implied threat of being sent to jail if she failed to cooperate
with Theriot’s demands.” During her time in his office, she complied with his
multiple requests for sexual favors.
      The FBI later interviewed Theriot about these events. He eventually
pleaded guilty to one count of making false statements in violation of 18
U.S.C. § 1001(a)(2), and he agreed that “he ‘engaged in inappropriate sexual
contact’ with [Hernandez] after she was taken to his office.”
      Hernandez sued Theriot and the Town of Sorrento under 42
U.S.C. § 1983 for violations of her Fourteenth Amendment due process rights.
She also sought damages for the state law torts of sexual assault, sexual
battery, IIED, and false imprisonment. After a bench trial, the district court
issued a ruling with its findings of fact and conclusions of law, holding both
Theriot and the Town liable under Section 1983 and for sexual assault and
sexual battery. 1 The district court further held that Theriot and the Town were


      1   The parties do not dispute the district court’s findings of fact.
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                                  No. 16-31188
not liable to Hernandez for IIED or false imprisonment. Hernandez timely
appealed.
                                       II.
      Hernandez argues that the district court erred in holding that Theriot
was not liable for IIED or false imprisonment.
      “In the appeal of a bench trial, we review findings of fact for clear error.”
Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 2009). In making
this determination, we apply Louisiana substantive law, but we “utilize our
own federal standards of appellate review in evaluating the district court’s
findings.” Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 647 n.12 (5th
Cir. 2002). Questions of law are reviewed de novo. Dickerson, 556 F.3d at 294.
We will address each of Hernandez’s claims in turn.
                                        A.
      To succeed on her claim of IIED under Louisiana law, Hernandez must
prove: (1) Theriot’s conduct was extreme and outrageous; (2) she suffered
severe emotional distress; and (3) Theriot “desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct.” White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991). The district court found that “[t]he
uncontroverted evidence easily satisfies the first two elements,” but concluded
that “there was no evidence presented at trial to establish element (3): that
Theriot desired to inflict severe emotional distress or was certain or
substantially certain that such distress would result from his conduct.”
      First, Hernandez argues that, under White, Theriot knew that his
conduct was certain or substantially certain to cause Hernandez distress.
Because the district court’s finding that Theriot did not desire or intend to
cause Hernandez to suffer severe emotional distress is a finding of fact, the
standard governing appellate review thereof is that set forth in Federal Rule
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                                   No. 16-31188
of Civil Procedure 52(a): “Findings of fact . . . must not be set aside unless
clearly erroneous, and the reviewing court must give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.” The question before us,
then, is whether the district court’s failure to find that Theriot desired to inflict
severe emotional distress, or knew that such distress was certain or
substantially certain to result from his conduct, was clearly erroneous. See
White, 585 So.2d at 1210.
      A review of the entire record before us does not leave us with a “definite
and firm conviction that a mistake has been committed.” See Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)). In making its factual
determinations, the district court credited some, but not all, of Hernandez’s
testimony as to the intentional, tortious actions Theriot inflicted upon her.
While the court did not explain in detail why it rejected Hernandez’s contention
that Theriot desired or intended to cause her severe emotional distress, the
court did assign more copious reasons for its rejection of her false
imprisonment claim. The court’s reasoning there, which we discuss in the
following section of this opinion, appears to explain in large part what the court
found to be missing in Hernandez’s proof of her IIED claim.
      Second, Hernandez argues that Theriot failed to prove that he did not
intend to cause Hernandez emotional distress. This argument misconstrues
the law. It is Hernandez, not Theriot, who bears the burden of proving the
requisite intent. White, 585 So. 2d at 1209 (“[I]n order to recover for [IIED], a
plaintiff must establish” the three elements of the claim.) (emphasis added).
      Finally, Hernandez argues that the district court erred by failing to infer
Theriot’s intent from his failure to testify. Although it is true that the “Fifth
Amendment does not forbid adverse inferences against parties to civil actions
when they refuse to testify,” Burdine v. Johnson, 262 F.3d 336, 366 (5th Cir.
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                                  No. 16-31188
2001), Hernandez has failed to adduce any case law that indicates that a fact
finder is required to draw such adverse inferences. Accordingly, the district
court did not clearly err.
                                       B.
      Under Louisiana law, “[f]alse imprisonment is the unlawful and total
restraint of the liberty of the person.” Kelly v. W. Cash & Carry Bldg. Materials
Store, 745 So. 2d 743, 750 (La. Ct. App. 1999) (emphasis omitted) (quoting
Crossett v. Campbell, 48 So. 141, 143 (1908)). It “consists of the following two
essential elements: (1) detention of the person; and (2) the unlawfulness of the
detention.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La.
2006). As such, false imprisonment “may not be predicated on a person’s
unfounded belief that [she] was restrained” when she was not, nor is
“[a]pprehension that one might in the future . . . be prosecuted” sufficient.
Kelly, 745 So. 2d at 750. “Bare words are insufficient to effect an imprisonment
if the person to whom they are spoken is not deprived of freedom of action.” Id.
      The district court concluded that, “[b]ased on the testimony presented at
trial, the Court cannot find that Plaintiff has satisfied her burden on the false
imprisonment claim.” In reaching this determination, the district court
considered: (1) the fact that Hernandez chose not to exit Theriot’s car when he
drove her to her mother’s house; (2) Hernandez’s own testimony that she was
not locked in Theriot’s office and placed several phone calls to her boyfriend
while inside; and (3) Hernandez’s failure to mention in her FBI interview that
Theriot used her belt to tie her wrists as she claimed at trial. Hernandez has
not challenged any of these factual findings. Instead, she relies on her own
testimony at trial to argue that “her liberty was taken from her” because
Theriot repeatedly told her “that the door [would be] locked.” But as the district
court noted, Theriot herself later admitted that it was not locked because she


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                                  No. 16-31188
was able to leave through a back door to smoke a cigarette. Accordingly, the
district court did not clearly err in its factual determinations on this issue.
                                       III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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