     Case: 18-30695      Document: 00514797282         Page: 1    Date Filed: 01/16/2019




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

                                    No. 18-30695                          FILED
                                  Summary Calendar                 January 16, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
MIRIAM L. DANNA,

              Plaintiff - Appellant

v.

MATT PURGERSON, individually and in his official capacity; KEITH FOX,
individually and in his official capacity; LEONARD SCOGGINS, individually
and in his official capacity; STEVE PRATOR, in his official capacity only,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:16-CV-71


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Plaintiff Miriam L. Danna appeals the district court’s order granting
summary judgment to the defendants on her 42 U.S.C. § 1983 and various
state-law claims. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30695
                                           I.
      The core facts in this case are undisputed, although the parties quibble
over these facts’ implications. To the extent a fact is in dispute, we recount it
in the light most favorable to Danna.
      On January 2, 2015, Danna, her son Nathaniel Danna, 1 and her
grandchildren went out for ice cream at a Dairy Queen in Shreveport,
Louisiana. While she was ordering at the counter, Danna grabbed a wallet that
Gerald Smith, another Dairy Queen patron, had left on the counter while he
went to the bathroom. Danna put the wallet in her purse, thinking it was hers
or her son’s. Several minutes later, Danna realized her mistake and gave the
wallet to Tisha Hood, a Dairy Queen cashier. The next day, someone from
Smith’s church called the Dairy Queen to inquire about the wallet, and then
someone else from the church, Rhonda Williams, went to pick it up.
      Two weeks later, on January 16, Smith filed a complaint with defendant
Matt Purgerson, a detective with the Caddo Parish Sheriff’s Office. Smith
alleged that he had $153 in his wallet when he left it on the Dairy Queen
counter that was missing when the wallet was returned to him. Smith
explained he waited two weeks to file the complaint because he did not learn
until he returned to the Dairy Queen on January 16 that the restaurant had
surveillance video, which could help determine who stole his money.
      Purgerson, along with defendants Keith Fox and Leonard Scoggins (also
Caddo Parish detectives), reviewed Dairy Queen’s surveillance video from
January 2. The video shows Danna place her purse next to the wallet, look
directly at Smith, place the wallet in her purse, and then exit the camera’s
view. The video also shows Hood speaking on the phone as she received the



      1   We refer to Nathaniel Danna by his first name to avoid confusion with Miriam
Danna.
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                                 No. 18-30695
wallet from Danna. Purgerson interviewed Hood and Veronica Norman, the
restaurant’s manager, who both stated that Hood called Norman to ask what
to do with the wallet and Norman told Hood to put it in the safe.
      Purgerson identified Danna as the woman in the video; he and Fox then
interviewed her about the incident. Danna told them she found Smith’s wallet
in her purse but was unsure how it got there. When Purgerson and Fox told
Danna that surveillance video showed her putting the wallet in her purse, she
responded that she did not remember doing so but speculated that she must
have subconsciously grabbed the wallet from the counter and put it into her
purse thinking it was her son’s wallet. Purgerson and Fox placed Danna under
arrest for misdemeanor theft at the conclusion of the interview. A state-court
judge later acquitted Danna following a bench trial.
      Danna sued Purgerson, Fox, Scoggins, and Caddo Parish Sheriff Steve
Prator in the federal district court. She alleged false arrest, excessive force,
and malicious prosecution in violation of the Fourth Amendment and
Louisiana state law. The defendants asserted qualified immunity and moved
for summary judgment. The district court granted summary judgment for the
defendants. It held that probable cause existed to arrest Danna for theft, which
defeated her false arrest and malicious prosecution claims. It further held that
her allegations that an officer secured her handcuffs too tightly during her
arrest did not amount to excessive force. Danna filed a post-judgment motion
for reconsideration, which the district court denied. Danna now appeals.
                                      II.
      We review orders granting summary judgment de novo, applying the
same standard as the district court. Smith v. Reg’l Transit Auth., 827 F.3d 412,
417 (5th Cir. 2016). Summary judgment is warranted “if the movant shows




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                                 No. 18-30695
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.
      We first address Danna’s § 1983 and state-law false-arrest claims, which
both turn on the issue of probable cause. “To remain within the bounds of the
Fourth Amendment, a warrantless arrest must be supported by probable
cause.” Sam v. Richard, 887 F.3d 710, 715 (5th Cir. 2018). “Probable cause
exists when the totality of facts and circumstances within a police officer’s
knowledge at the moment of arrest are sufficient for a reasonable person to
conclude that the suspect had committed, or was in the process of committing,
an offense.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc)
(per curiam). Similarly, a false-arrest claim under Louisiana law requires the
plaintiff to show the officer acted without reasonable cause, which “exists when
the facts and circumstances within the arresting officer’s knowledge, and of
which he has reasonable trustworthy information, are sufficient to justify an
average man of caution in the belief that a [crime] has been committed.” Kyle
v. City of New Orleans, 353 So. 2d 969, 971 (La. 1977); see also La. Code Crim.
Proc. Ann. art. 213(A)(3) (authorizing warrantless arrest when “[t]he peace
officer has reasonable cause to believe that the person to be arrested has
committed an offense”). “Probable cause . . . is not a high bar: It requires only
the ‘kind of “fair probability” on which “reasonable and prudent [people,] not
legal technicians, act.”’” Kaley v. United States, 571 U.S. 320, 338 (2014)
(alteration in original) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).
      We agree with the district court that the defendants had probable cause
to arrest Danna. The Dairy Queen surveillance video clearly shows Danna
taking Smith’s wallet and putting it in her purse. Danna then spends some
time out of view of the security camera. Smith told police that there was money
in the wallet when he left it on the counter but the wallet was empty when it
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                                      No. 18-30695
was returned to him. Given Danna’s suspicious behavior on camera, a
reasonable person would infer Danna took the money while out of the camera’s
view. Moreover, it was reasonable for Purgerson and Fox to be suspicious of
Danna’s insistence that she did not know how Smith’s wallet ended up in her
purse, and they were not compelled to accept her subsequent explanation that
she must have picked it up subconsciously. See District of Columbia v. Wesby,
138 S. Ct. 577, 592 (2018) (“[I]nnocent explanations—even uncontradicted
ones—do not have any automatic, probable-cause-vitiating effect.”).
       Danna protests that there are other explanations for the missing money:
Hood (the Dairy Queen cashier) or Nathaniel (Danna’s son) could have taken
it; 2 or the money might not have existed in the first place. We agree that these
are possibilities. But as we have often said, “[p]robable cause does not require
certainty.” E.g., United States v. Roberts, 612 F.3d 306, 312 (5th Cir. 2010)
(quoting United States v. Waldrop, 404 F.3d 365, 369 (5th Cir. 2005)); see also
Wesby, 138 S. Ct. at 586. In any event, Danna overstates the strength of the
evidence available to the defendants at the time of her arrest to support her
alternative theories. The undisputed evidence shows that Hood behaved
consistently with someone making a good-faith attempt to return the wallet to
its owner. Upon receiving the wallet, she called Norman to ask what to do with
it. Norman told her to put the wallet in the safe. Hood can be seen on video
following Norman’s directions. All told, her behavior on the video is decidedly
less suspicious than Danna’s. Danna’s main piece of evidence against Hood is
that Hood has a prior conviction for felony theft. Even assuming this



       2 Danna also suggests that Williams, Smith’s friend who retrieved his wallet, or
Miranda Slavoff, another Dairy Queen employee, could have taken the money. Both theories
can be rejected out of hand. Hood told Purgerson there was no money in the wallet when she
received it; Hood would only have a motive to lie about this if she took the money. Therefore,
Purgerson could have reasonably concluded that no one who handled the wallet after Hood
took the money.
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                                   No. 18-30695
information was readily available to the defendants, it could not have
undermined the video evidence, which revealed Danna as the more suspicious
party.
         There is also little to suggest that Nathaniel took the money—or at least
that he did so without acting in concert with Danna. He is seen on the video
handling the wallet and appears to take pictures of it at one point, but, unlike
Danna, he remains in the camera’s view while handling the wallet. Of the three
plausible suspects, Danna’s actions raised the most alarms.
      Danna also points to evidence that Smith had problems with his
memory, suggesting that Smith was mistaken about whether there was $153
in his wallet when it went missing. But again, Danna points to no evidence
beyond Smith’s advanced age that Purgerson had any reason to suspect
Smith’s memory was unreliable. On the contrary, Purgerson swore in an
affidavit that he “saw nothing to suggest that [Smith] was impaired or suffered
from any mental or physical problem that would prevent him from accurately
communicating with [Purgerson] or from understanding what had occurred.”
Nor did Smith’s delay in reporting the missing money undercut the defendants’
probable-cause determination because Smith gave Purgerson a perfectly
reasonable explanation for the delay: he did not report it sooner because he did
not know Dairy Queen had surveillance footage of the incident. Accordingly,
the defendants acted reasonably in crediting Smith’s allegations that $153
went missing from his wallet.
      In sum, based on the evidence available to the defendants at the time of
Danna’s arrest, they had probable cause (and reasonable cause) to believe she
stole $153 from Smith’s wallet. The alternative explanations for the missing
money do not change that result. Therefore, we affirm the district court’s order
granting summary judgment on Danna’s § 1983 and state-law false-arrest
claims.
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                                  No. 18-30695
                                       B.
      We next address Danna’s malicious-prosecution claims. We start first
with her Fourth Amendment malicious-prosecution claim. Then we turn to her
state-law malicious prosecution claim.
      We have held “that no [] freestanding constitutional right to be free from
malicious prosecution exists.” Castellano v. Fragozo, 352 F.3d 939, 945 (5th
Cir. 2003) (en banc); see also Albright v. Oliver, 510 U.S. 266, 271 (1994)
(plurality opinion) (holding that there is no “substantive due process right to
be free of prosecution without probable cause”). Accordingly, a constitutional
malicious-prosecution claim must be grounded in some rights deprivation
separate from the prosecution itself—pretrial detention, for example. See
Castellano, 352 F.3d at 953-54, 959. Danna neither alleges nor produces
evidence that she was held in pretrial detention or deprived of some other
federally protected right during the pendency of her prosecution.
      Danna relies heavily on our recent opinion in Winfrey v. Rogers, 901 F.3d
483 (5th Cir. 2018). In that case, we remanded for trial a plaintiff’s claims that
the defendant made material false statements in his affidavit in support of the
plaintiff’s arrest warrant. Id. at 498. Danna compared Winfrey to this case
because she alleges that Purgerson omitted certain exculpatory information in
an affidavit supporting her charges. This comparison is inapt; we specified in
Winfrey that the plaintiff’s claim was grounded in his arrest and pretrial
detention—not the prosecution itself. Id. at 491-92. Purgerson filed his
affidavit after Danna’s arrest, and, as explained above, Danna was not held in
pretrial detention. To the extent Danna otherwise seeks to ground her
malicious-prosecution claim in her arrest, it is identical to her false-arrest
claim that we reject above. Accordingly, Danna’s constitutional malicious
prosecution claim fails.


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                                        No. 18-30695
        Danna’s state-law malicious-prosecution claim fares no better. To
succeed on a malicious-prosecution claim under Louisiana law, a plaintiff must
show:
        (1) the commencement or continuance of an original criminal or
        civil judicial proceeding; (2) its legal causation by the present
        defendant in the original proceeding; (3) its bona fide termination
        in favor of the present plaintiff; (4) the absence of probable cause
        for such proceeding; (5) the presence of malice therein; and (6)
        damage conforming to legal standards resulting to plaintiff.

Lemoine v. Wolfe, 168 So. 3d 362, 367 (La. 2015) (quoting Jones v. Soileau, 448
So. 2d 1268, 1271 (La. 1984)). Here again, the presence of probable cause to
charge Danna with theft dooms her claim. 3 Therefore, we affirm the district
court’s ordering granting summary judgment to the defendants on Danna’s
§ 1983 and state-law malicious prosecution claims. 4


        Danna asserts that, under Louisiana law, Danna’s acquittal shifts the burden to the
        3

defendants to show they acted with probable cause. To support this argument, Danna pulls
an egregiously misleading quote from a Louisiana Court of Appeals case. The quote Danna
included in her opening brief states, “The law is well settled that, where one institutes
against another a criminal prosecution and there is an acquittal, if the person who instigated
the prosecution is to avoid liability for damages he must do so on the ground that he acted
with probable cause and without malice.” Robinson v. Rhodes, 300 So. 2d 249, 251 (La. Ct.
App 2d Cir. 1974)). But this passage continues, in the very next sentence:

        The burden however, is ordinarily upon plaintiff to prove both malice and the
        absence of probable cause. But the authorities have firmly established the rule
        that where a committing magistrate, without a trial, has discharged the
        accused, or the prosecuting officer has dismissed the charge, or where a grand
        jury has returned a nobill, there is a presumption of want of probable cause
        with the result that, in a suit for malicious prosecution based on that discharge,
        the burden of showing that he acted on probable cause and without malice is
        upon the defendant.

Id. (emphases added). The full quote thus directly contradicts Danna’s assertion that her
acquittal—following a trial—shifts the burden of proof to the defendants. We remind Danna’s
counsel of his duty of candor to this court.
       4 Danna advances no argument on appeal that the district court erred in granting

summary judgment to the defendants on her excessive force claims. We thus treat these
claims as waived. See, e.g., Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th
Cir. 2004). Danna likewise does not challenge the district court’s decision that Danna’s claims
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                                     No. 18-30695
                                           III.
         For the reasons stated above, we AFFIRM the judgment of the district
court.




against the defendants in their official capacities must fail because Danna did not produce
any evidence showing the Caddo Parish Sheriff’s Office was culpable for the defendants’
actions—though such claims would fail regardless absent any tort. And we similarly do not
reach the defendants’ qualified-immunity defense; having committed no tort, the defendants
need no immunity.
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