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

                                                 FILED
                                                                          April 1, 2009

                                    No. 08-60688                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk



DANNY COMER; KATHY COMER

                                                 Plaintiffs - Appellants
v.

DAVID LINDLEY, Individually; CITY OF STARKVILLE, MISSISSIPPI

                                                 Defendants - Appellees




                  Appeal from the United States District Court
                    for the Northern District of Mississippi
                            USDC No. 1:06-CV-299


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Danny Comer (“Comer”) appeals the grant of summary judgment by the
district court in favor of the City of Starksville, Mississippi and David Lindley
(“Lindley”), the Starksville Chief of Police. Before us are claims against Lindley,
individually, for false arrest and imposing excessive bail under 42 U.S.C. § 1983,
and a claim against both Lindley and the City for malicious prosecution under
Mississippi state law. Kathy Comer also brings a derivative loss of consortium


       *
         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not be published and is not precedent except under the limited circumstances set forth in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.
claim.
         Many of the facts are not in dispute. Comer was hired by Shelia Riekhof
to perform certain home repair work. A dispute arose about the work being done
and Riekhof felt that she was being scammed. Riekhof called Lindley, her
neighbor and the Chief of Police, for advice, and Lindley advised her to file a
report at the police station. She subsequently did so. A detective was assigned
to the case, police tape was put around Riekhof’s residence, and the District
Attorney had Riekhof execute an affidavit alleging that Comer had committed
the crime of false pretenses.
         The evidence was presented to a judge, who signed a warrant for Comer’s
arrest. Comer turned himself in on August 18, 2003. Denied the ability to post
a property bond, Comer instead had to post a cash bond. He was released that
same day.      On October 30, 2003, the case was dismissed after the police
department refused, allegedly on the advice of the District Attorney, to turn over
their reports and files to Comer.
         On January 26, 2004, a grand jury indicted Comer for the crime of false
pretenses.       He    was       arrested   by   the   Oktibbeha   County   Sheriff’s
Department—which is not a party to this suit. The charges were not pursued
by the District Attorney, who filed a Nolle Prosequi on November 3, 2005.
Comer filed this action against Lindley and the City of Starksville on November
2, 2006.
         “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(c).

                                             2
For the following reasons, we affirm the grant of summary judgment.
     1. “Where an arrest is made under authority of a properly issued warrant,
     the arrest is simply not a false arrest.” Smith v. Gonzales, 670 F.2d 522,
     526 (5th Cir. 1982). Comer makes conclusory allegations that because the
     indictment was ultimately dismissed, the judge must not have been told
     all of the relevant facts. But the dismissal and non-disclosure of evidence
     happened after the arrest, and Comer does not raise any issues of material
     fact as to whether the warrant was “properly issued.” His false arrest
     claim fails.
     2. The forum state’s personal-injury statute of limitations is applied to §
     1983 claims. See Wilson v. Garcia, 471 U.S. 261, 280 (1985). Mississippi
     has a three-year limitations period. M ISS. C ODE § 15-1-49(1). Bail was
     allegedly denied on August 18, 2003. This suit was not brought until
     November 2, 2006. Comer argues that he was arrested again within the
     three-year statute of limitations period, but the only alleged denial of bail
     occurred before that period, and his later arrest by County officials does
     not toll or extend the limitations period. Comer’s excessive bail claim is
     thus barred by the statute of limitations.
     3. One of the requirements for malicious prosecution under Mississippi
     law is a “want of probable cause for the proceedings.” McClinton v. Delta
     Pride Catfish, Inc., 792 So.2d 968, 973 (Miss. 2001). “Probable cause is
     determined from the facts apparent to the observer when the prosecution
     is initiated.” Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190
     (Miss. 1990). Comer has provided no evidence that the judge or jury did
     not have facts necessary to establish probable cause when the warrants
     were issued. The fact that these charges were dismissed or not pursued
     is not enough to raise a genuine issue of material fact as to probable cause.

                                       3
    Comer’s malicious prosecution claims against Lindley and the City thus
    fail.
    4. Kathy Comer’s loss of consortium claim is derivative of her husband’s
    cause of action. M ISS. C ODE § 93-3-1. Because we affirm the grant of
    summary judgment on all of Comer’s claims, the loss of consortium claim
    also fails.
AFFIRMED.




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