     Case: 16-30169      Document: 00513845468         Page: 1    Date Filed: 01/23/2017




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

                                    No. 16-30169
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      January 23, 2017
                                                                          Lyle W. Cayce
ANNA D. DAVIS,                                                                 Clerk


              Plaintiff–Appellant,

v.

JACK STRAIN, in his official capacity as Sheriff of St. Tammany Parish;
KATHERINE DOMANGUE, St. Tammany Parish Sheriff Deputy; RICK
RICHARD; JOHN MORSE, Sergeant,

              Defendants–Appellees.




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:14-CV-1086


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       Dr. Anna Davis (Dr. Davis) brought this suit under 42 U.S.C. § 1983
against Jack Strain, John Morse, Katherine Domangue, and Rick Richard
(collectively, the officers), alleging both federal and state law claims of false
arrest in violation of her Fourth Amendment rights. The officers asserted the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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defense of qualified immunity, and Strain and Morse moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After
granting Strain and Morse’s motion, the district court granted summary
judgment in favor of the nonmovant–defendants, Domangue and Richard,
pursuant to Rule 56(f)(1). Dr. Davis timely appealed, asserting that Morse and
Domangue “omitted critical information from the application for the arrest
warrant” that would have “fatally undermined” the finding of probable cause. 1
We affirm.
                                              I
       This court reviews a district court’s grant of summary judgment de
novo. 2 “Summary judgment is proper if 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 entitled to judgment as a matter of law.” 3
Although qualified immunity is “nominally an affirmative defense, the plaintiff
has the burden to negate the defense once properly raised.” 4 When the court
considers the validity of a qualified immunity claim on summary judgment,
“[t]he evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in [the nonmovant’s] favor.” 5



       1 Davis does not mention either Strain or Richard in her argument before this court,
referring to them only in the summary of proceedings. Any claims as to Strain and Richard
are therefore waived for inadequate briefing. See FED. R. APP. P. 28(a)(8)(A) (stating that a
brief must contain “appellant’s contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies”).
       2 DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009); see also Hart v. Hairston, 343

F.3d 762, 764 (5th Cir. 2003) (per curiam); Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.
1995).
       3 Hart, 343 F.3d at 764 (citing FED. R. CIV. P. 56(c)).
       4 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
       5 Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam) (internal quotation marks

omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

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       An official asserting the defense of qualified immunity must “show that
the conduct occurred while he was acting in his official capacity and within the
scope of his discretionary authority.” 6 Once the officer pleads his good faith,
the burden shifts to the plaintiff to “rebut the defense by establishing that the
officer’s allegedly wrongful conduct violated clearly established law.” 7
“[Q]ualified immunity shields officials from civil liability so long as their
conduct ‘does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” 8 “A clearly established right
is one that is ‘sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’” 9 This “demanding
standard” 10 protects “all but the plainly incompetent or those who knowingly
violate the law.” 11
       The Fourth Amendment guarantees “the right of the people to be secure
in their persons . . . against unreasonable searches and seizures . . . and no
warrants shall issue, but upon probable cause.” 12 It is undisputed that this
right is clearly established. 13 In the context of a false arrest claim, an officer
is entitled to qualified immunity if “a reasonable person in [his or her] position
could have believed [he or she] had probable cause to arrest.” 14                 Though
generally an arrest made pursuant to a properly issued warrant “is simply not




       6Beltran v. City of El Paso, 367 F.3d 299, 303 (5th Cir. 2004).
       7Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).
      8 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)).
      9 Id. (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
      10 Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
      11 Malley v. Briggs, 475 U.S. 335, 341 (1986).
      12 U.S. CONST. amend. IV.
      13 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).
      14 Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (internal quotation marks

omitted) (quoting Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).

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a false arrest,” 15 “when an affidavit contains inaccurate statements which
materially affect its showing of probable cause, any warrant based upon it is
rendered invalid.” 16 The Supreme Court has recognized that an applicant for
a warrant may violate the Fourth Amendment if he includes “a false statement
knowingly and intentionally, or with reckless disregard for the truth” and “the
allegedly false statement is necessary to the finding of probable cause.” 17 Thus,
“where the officers charged with false arrest were responsible for securing the
warrant, we are required to test the validity of that warrant.” 18
       We note that “[p]robable cause to arrest exists if, at the moment an arrest
is made, the facts and circumstances within the arresting officers’ knowledge
and of which they have reasonably trustworthy information are sufficient to
warrant a prudent man in believing that the suspect has committed or is
committing an offense,” but “[e]nough evidence to support a conviction is not
required.” 19    “[S]ubjective intent, motive, or even outright animus are
irrelevant,” 20 and we confine our inquiry to an objective assessment of whether
“a reasonable officer could have believed [the arrest at issue] to be lawful, in
light of clearly established law and the information the [arresting] officers
possessed.” 21 “[I]f even under [the plaintiff’s] factual scenario the officers’
actions     may       be     deemed       as       a   matter      of    law      objectively
reasonable[,] . . . qualified immunity should be granted.” 22               “To determine



       15 Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982).
       16 United States v. Morris, 477 F.2d 657, 662 (5th Cir. 1973).
       17 Franks v. Delaware, 98 S. Ct. 2674, 2676 (1978) (setting forth the standard to obtain

a hearing); Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006) (noting that a Fourth
Amendment violation may exist where the Franks standard is satisfied).
       18 Mendenhall v. Riser, 213 F.3d 226, 232 (5th Cir. 2000).
       19 Morris, 477 F.2d at 663.
       20 Mendenhall, 213 F.3d at 231.
       21 Id. at 230 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
       22 Id.; cf. Morris, 477 F.2d at 662-63 (stating that, if the erroneous statement were

removed from the affidavit, it would “contain[] nothing more than a recitation of entirely

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whether facts omitted from a warrant affidavit are material to the
determination of probable cause, courts ordinarily insert the omitted facts into
the affidavit and ask whether the reconstructed affidavit would still support a
finding of probable cause.” 23
                                             II
       The actual sequence of events is contested by the parties. However, for
purposes of a qualified immunity analysis, we cabin our review of the facts to
the information the officers had at the time of the arrest. 24         In this case, the
officers received information from Dr. Rachel Murphy that a patient came to
her for a pre-employment drug screen on January 23, 2013. She informed them
that, upon learning he had failed the drug screen, the patient and his father
met with Dr. Murphy. According to Dr. Murphy, the patient left the office,
subsequently returned, and presented a prescription for valium dated January
21, 2013. Dr. Murphy believed the prescription was fraudulent. The patient
did not have a matching prescription in his prescription history between
January 21 and January 23, 2013.
       The officers obtained a search warrant for Dr. Murphy’s office, where
they obtained the prescription bottle, which indicated Dr. Davis provided the
prescription. Dr. Murphy also stated that the pharmacist who had filled the
prescription had initially told her it was filled on January 21, 2013, but later
said he had backdated the fill date. According to Dr. Murphy, the patient’s
father had reported driving the patient to Dr. Davis’s office just before the
patient presented her with the valium prescription.


innocent acts coupled with the bare assertion that a crime was being committed” and thus
could not support the issuance of an arrest warrant).
       23 Kohler v. Englade, 470 F.3d 1104, 1113 (5th Cir. 2006).
       24 See Mendenhall, 213 F.3d at 231 (explaining that “[t]he law charges us with

determining the reasonableness of the actions taken in light of the cause that existed at the
time of arrest”).

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       The officers obtained a statement from the patient that, upon learning
of the failed drug test, he had requested a back-dated prescription from Dr.
Davis, which he received.           He stated that he subsequently filled the
prescription without incident, though this statement was later controverted by
the pharmacist.       Pursuant to a search warrant, the officers obtained the
prescription from the pharmacy where it was filled. There, the pharmacist
who dispensed the medication also informed the officers that the prescription
numbers issue in order, and that the number on the prescription indicated it
was actually filled on January 31, 2013. The officers obtained a search warrant
for Dr. Davis’s office and records, which revealed two signed entries for
January 21. The two entries appeared to be written in different pens, and only
the second referenced the valium prescription. The detectives also spoke with
Dr. Davis regarding the January 21, 2013 entries and the valium prescription.
Dr. Davis denied backdating any prescription, though she did acknowledge
that the patient had made such a request at some time. Dr. Davis did see the
patient on January 31, 2013, but there was no mention of a valium prescription
on that date. The officers secured a warrant for Dr. Davis’s arrest based on
this information. 25     The application for the warrant did not mention the
patient’s criminal history or drug abuse, nor did it mention any possible “deal”
with the patient.
       The crux of Dr. Davis’s argument is that the officers omitted two pieces
of critical information from the affidavit and included false information
concerning the timeline of events.          The affidavit made no mention of the


       25 The officers took a recorded statement from Dr. Murphy on the same afternoon that
the warrant application was submitted and took a statement from the pharmacist five days
later. It is unclear whether the officers obtained Dr. Murphy’s statement before Dr. Davis
was informed of the issuance of the warrant. In an abundance of caution, any information
that may have been obtained after Dr. Davis was notified of the warrant and surrendered is
not considered by this court.

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extensive criminal history of the patient who obtained the allegedly backdated
prescription, including multiple convictions for crimes involving illegal drugs
and deception. Nor did the affidavit mention the existence of an agreement
not to prosecute the patient in exchange for his cooperation in the
investigation. Finally, Dr. Davis argues that the affidavit misrepresents Dr.
Murphy’s account of when the patient presented the allegedly backdated
prescription. Dr. Davis argues that Dr. Murphy’s statement from May 15, 2013
contradicts the information in the arrest warrant by stating that the patient
only visited her office once on January 31, 2013. Dr. Davis asserts that, were
the affidavit rewritten to include the omitted information and her version of
events, there would be no probable cause. We disagree.
       Taking into account all the evidence available at summary judgment,
and resolving all contested facts in favor of Dr. Davis, we cannot say that the
allegedly false statements and omissions were necessary to the finding of
probable cause. 26 This is not a case in which the only information supporting
the arrest was provided by a discredited witness. 27                The officers received
information from at least two other individuals whose credibility has not been
challenged, including Dr. Murphy and the pharmacist.                     Furthermore, the
officers executed search warrants and independently verified many of the facts
provided to them.        Discounting all evidence provided by the patient, and
assuming Dr. Murphy said the patient visited only once, the following facts
support a finding of probable cause:



       26 See Franks v. Delaware, 98 S. Ct. 2674, 2676 (1978).
       27 Cf. United States v. Hall, 113 F. 3d 157, 160-61 (9th Cir. 1997) (affirming the lower
court’s conclusion that no probable cause existed to search a trailer based solely on the “word
of a man whom [the government] knew had a substantial criminal record, including a
conviction for making a false report to police,” when information about the witnesses
credibility had been intentionally or recklessly withheld by the state trooper seeking the
warrant).

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   • Dr. Murphy advised a patient that he had failed a drug screen performed
     on January 23, 2013, and the patient produced what Dr. Murphy
     believed to be a fraudulent prescription dated January 21, 2013.
   • The prescription history of the patient did not show a prescription for the
     drug in question during the relevant time period.
   • The pharmacist who filled the prescription admitted he had backdated
     the prescription’s fill date to January 21, 2013, even though the receipt
     transaction date stated the prescription was purchased on January 31,
     2013.
   • The patient’s father told Dr. Murphy that the patient had obtained the
     backdated prescription from Dr. Davis after learning he had failed the
     drug screen, and before presenting the prescription to Dr. Murphy, in an
     attempt to justify the failed drug screen.
   • Dr. Davis’s “progress note” for the patient from January 21, 2013
     includes two signed entries, each written in different pen, and both
     signed by Dr. Davis. The second entry contained information regarding
     the prescription at issue.

      We reiterate that “[e]nough evidence to support a conviction is not
required” to establish probable cause. 28             Even though Dr. Davis was not
ultimately found guilty of the offense, the information available to the officers
at the time of arrest, discounting that contested by Dr. Davis, was sufficient to
support a finding of probable cause.
                                       *        *         *
      The judgment of the district court is AFFIRMED.




      28   United States v. Morris, 477 F.2d 657, 663 (5th Cir. 1973).

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