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

                                                                            FILED
                                                                         October 24, 2007

                                     No. 06-31021                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




EMMETT SPOONER

                     Plaintiff - Appellant

v.

MICHAEL JACKSON; JERRY MITCHELL; MIKE
EDMUNDSON; STATE OF LOUISIANA; LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

                     Defendants - Appellees


                   Appeal from the United States District Court
                 for the Middle District of Louisiana, Baton Rouge
                              USDC No. 3:00-CV-590


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Emmett Spooner, pro se and in forma pauperis, appeals the summary
judgments dismissing his claims against the appellees under 42 U.S.C. § 1983.
For the reasons that follow, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-31021

                                        I.
      Spooner, who admittedly is not a lawyer but claims to be a civil rights
activist and investigator, agreed to assist two former clients of appellee Michael
Jackson, an attorney and Louisiana state representative, in locating Jackson.
The two former clients apparently had been involved in an accident, had
retained Jackson to represent them, and Jackson had allowed their cause of
action to prescribe.   They filed a complaint with the Louisiana Attorney
Disciplinary Board. Spooner made several calls to Jackson’s law and legislative
offices about the matter, and he also spoke with Jackson’s attorney who was
representing Jackson before the Attorney Disciplinary Board.
      On July 1, 2000, Jackson made a complaint to the Louisiana State Police
that Spooner was representing two of Jackson’s former clients, that Spooner was
not licensed to practice law, that Spooner had demanded that Jackson pay
$5,000 to close the case, and that Spooner had threatened to take the matter to
the Louisiana Attorney Disciplinary Board if payment was not made
immediately. Appellee Jerry Mitchell, a Louisiana State Police Detective,
investigated the complaint. Jackson made arrangements for Spooner and the
former clients to come to his office on July 7, 2000.
      On July 7, the State Police provided Jackson with $5,000 in cash. Later
that day, Jackson met with the two former clients and Spooner in his office.
Following the meeting, Spooner was arrested for extortion and unauthorized
practice of law. Spooner was in possession of $1,000 of the $5,000 provided to
Jackson by the State Police, and one of Jackson’s former clients had the
remaining $4,000 in her possession. Spooner was transported to the Louisiana
State Police Detective Office and later transported to the parish prison for
booking. Appellee Michael Edmundson, a Louisiana State Trooper, delivered
information to the media, which he obtained from Mitchell, concerning Spooner’s
arrest.


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                                  No. 06-31021

      On July 10, 2000, Spooner filed a petition for damages and injunctive relief
in state court under 42 U.S.C. § 1983. Spooner alleged that Jackson violated his
Fourth and Fourteenth Amendment rights by causing his arrest without
sufficient probable cause, that Jackson conspired with and aided Detective
Mitchell in making a false arrest of Spooner, and that Jackson made “libalist”
and misleading statements to the news media regarding Spooner. He alleged
that Detective Mitchell falsely imprisoned him by holding him at the detective’s
office for over two hours and ignoring his request to be transferred to the parish
jail; that Detective Mitchell seized business files from him which were not
relevant to the subject matter of his arrest and denied him access to those files;
that Detective Mitchell falsely arrested him; that Detective Mitchell conspired
with Jackson to falsely arrest him; and that Detective Mitchell attempted to get
Jackson’s two former clients to make false statements regarding their
relationship with Spooner. He alleged that the State of Louisiana is vicariously
liable because it agreed to indemnify Detective Mitchell (presumably for any
damages awarded against Detective Mitchell), because the Department of Public
Safety and Corrections failed to properly train Detective Mitchell, and because
the Department of Public Safety and Corrections related false and misleading
information to the news media. He alleged that Trooper Edmundson violated his
rights under “Louisiana Tort Law, Federal Torts Claims Act,” and the Louisiana
Constitution by releasing false information about him to the news media.
      On August 2, 2000, the defendants removed the case to federal court. The
case was stayed pending resolution of state and federal criminal charges against
Spooner. Spooner was not indicted or prosecuted for the charges of extortion and
unauthorized practice of law for which he was arrested in July 2000. Spooner
was convicted on three counts of mail fraud and three counts of wire fraud in
federal court. He was sentenced to serve 33 months in prison, followed by three



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                                      No. 06-31021

years of supervised release, and was ordered to pay restitution of $29,198.1 After
the federal criminal charges were concluded, the case was reopened.
       In December 2005, the district court granted the motion for summary
judgment filed by the State of Louisiana, the Department of Public Safety and
Corrections, Detective Mitchell, and Trooper Edmundson. The court held that
the defendants were entitled to summary judgment on Spooner’s claims of false
arrest and false imprisonment because Detective Mitchell had probable cause to
arrest Spooner based on the information provided in Jackson’s complaint and
Detective Mitchell’s investigation. The court granted summary judgment on the
conspiracy claim because Detective Mitchell had probable cause to arrest
Spooner and because his conspiracy allegations were conclusory. The court held
that Spooner’s detention at the State Police office prior to being taken to the
parish prison did not rise to the level of a constitutional violation. The court
held that the seizure of Spooner’s property that he possessed at the time of his
arrest did not amount to a violation of Spooner’s Fourth Amendment rights. The
court concluded that there was no evidence to support Spooner’s allegation that
Detective Mitchell attempted to elicit false statements from Jackson’s former
clients. The court held that the Department of Public Safety and Trooper
Edmundson were entitled to summary judgment on Spooner’s defamation claims
because Spooner failed to produce any evidence that Edmundson disseminated
false information to the media regarding Spooner. Finally, the court held that
the State and the Louisiana Department of Public Safety (collectively, “the State
defendants”) were immune from suit under the Eleventh Amendment.
       In September 2006, the district court granted summary judgment in favor
of Jackson. The court held that Jackson was entitled to summary judgment on


       1
        In December 2003, this court affirmed Spooner’s convictions, but vacated the sentence
and remanded for resentencing. On remand, the district court imposed the same sentence, and
this court affirmed in January 2005.

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the conspiracy claim because Spooner’s allegation that Jackson and Mitchell
conspired to have him falsely arrested was conclusory and because Detective
Mitchell had probable cause to arrest Spooner. It granted Jackson summary
judgment on the defamation claim because Spooner failed to produce any
evidence that Jackson disseminated false information regarding Spooner to the
media or to the police. Spooner appealed.
                                        II.
      On appeal, Spooner contends that the district court erred by granting
summary judgment for Mitchell, Edmundson, and the State defendants; that the
district court erred by not allowing him to take the deposition of Detective
Mitchell; that the district court erred by striking his cross-motion for summary
judgment; and that the State defendants waived Eleventh Amendment
immunity when they removed the case from state court. We now turn to address
each of these contentions.
                                        A.
      In his challenge to the summary judgment for Mitchell, Edmundson, and
the State defendants on his false arrest and conspiracy claims, Spooner contends
that genuine issues of material fact exist as to whether Detective Mitchell had
information and evidence to support his arrest. He argues that the defendants
knew or should have known of his position as a civil rights activist and
investigator for a Louisiana civil rights organization and, therefore, a reasonable
investigator would have attempted to contact him and Jackson’s two former
clients before deciding to make an arrest. He contends further that a state judge
refused to sign a warrant for his arrest and that is why Mitchell and Jackson
conspired to entrap him and insisted on his presence at Jackson’s office where
he was arrested. He maintains that Jackson’s refusal to give his two former
clients money without Spooner’s presence is evidence of the conspiracy.



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      Our review of the summary judgment evidence persuades us that the
district court correctly granted summary judgment for the defendants. The
initial complaint and post-arrest report prepared by Detective Mitchell reflect
that he received a complaint from a credible source -- Jackson, a lawyer and
state representative -- that Spooner, who is not a lawyer, was purportedly
representing two of Jackson’s former clients and was insisting that Jackson pay
$5,000 to them. Furthermore, Jackson reported that Spooner threatened to take
the matter to the Louisiana Attorney Disciplinary Board unless payment was
made immediately.     The information available to Mitchell at the time of
Spooner’s arrest, including the source of the information and how he obtained
it, would warrant belief by a reasonably prudent officer that Spooner was
committing the offenses of extortion and unauthorized practice of law.
Therefore, Detective Mitchell had probable cause to arrest Spooner. There is no
evidence in the record to support Spooner’s contention that a state judge refused
to sign a warrant for his arrest. Accordingly, the defendants were entitled to
summary judgment on the false arrest claim. Because Detective Mitchell had
probable cause to arrest Spooner, and because, as the district court correctly
noted, Spooner’s allegations regarding a conspiracy are conclusory, the
defendants were also entitled to summary judgment on Spooner’s conspiracy
claim.
                                       B.
      We now turn to Spooner’s contention that the district court erred by
granting summary judgment without allowing him to take the deposition of
Detective Mitchell. Spooner asserts that Mitchell, if deposed, would have
testified that he was brought into the case by his “boss,” Trooper Landry,
because Jackson wanted to get Spooner arrested due to Spooner’s investigation
of Jackson. He asserts that he would have questioned Mitchell about his failure
to obtain accessible evidence and information prior to the arrest.


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                                  No. 06-31021

      The record reflects that on April 13, 2005, the magistrate judge granted
the defendants’ motion to compel Spooner to respond to discovery and ordered
Spooner to reimburse the defendants for $300 in expenses. The order warned
Spooner that failure to comply would subject him to the risk of further sanctions.
On May 10, 2005, the defendants filed a motion to enforce compliance with the
April 13, 2005 order and sought a stay of all discovery by Spooner pending his
compliance. On June 21, Spooner filed a notice to take Mitchell’s deposition on
June 28. The defendants moved to quash. They noted that they had previously
provided Spooner with multiple dates that Mitchell was available, and that
Spooner had failed to respond. They also noted that Mitchell would not be
available on June 28 because he would be appearing before a grand jury on a
murder investigation. In response, Spooner cancelled the June 28 deposition
and requested new dates on which Mitchell would be available.
      On July 29, 2005, the magistrate judge granted the defendants’ motion to
enforce compliance with the April 13, 2005 order. As a sanction, the court
ordered discovery closed as to Spooner. On October 13, 2005, Spooner moved to
reinstate his right to discovery. He said he had paid $50 of the $300 sanction
imposed by the April 13, 2005 order and proposed to pay the balance in $50
monthly installments. He requested clarification as to whether the order
prevented him from deposing Detective Mitchell. The defendants opposed
reinstatement of Spooner’s right to conduct discovery.         Attached to their
memorandum were copies of correspondence to Spooner reflecting that on
December 29, 2004, they offered 13 dates in January 2005 for Mitchell’s
deposition and that on July 6, 2005, they offered six dates in July 2005 for
Mitchell’s deposition. The defendants asserted that Spooner failed to respond
to these letters and two others in which they sought to accommodate Spooner’s
request to depose Mitchell. The magistrate judge denied Spooner’s motion to
reinstate his right to conduct discovery, essentially for the reasons stated in the


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defendants’ opposition.      Spooner sought review of the magistrate judge’s
decision, and the district court affirmed.
      The district court did not err by granting summary judgment without
allowing Spooner to take Mitchell’s deposition. It was not an abuse of discretion
for the district court to conclude that Spooner lost his right to depose Mitchell
as a consequence of his failure to comply with the April 13, 2005 order. The
record reflects that he had a reasonable opportunity to take Mitchell’s
deposition, but failed to respond to the defendants’ offers of available dates for
scheduling the deposition.
                                       C.
      Next, Spooner asserts that the district court erred by striking his cross-
motion for summary judgment. He contends that it was unfair for the court to
strike his cross-motion on the ground that it was untimely after the court
allowed Jackson to file his motion for summary judgment after the deadline for
filing dispositive motions established in the scheduling order.
      Spooner’s contentions are without merit. The court found that Jackson
had demonstrated good cause for filing his motion for summary judgment after
the deadline for filing dispositive motions based on evidence that Jackson’s
counsel did not receive electronic notice of the scheduling order because of a
computer virus. Spooner did not offer any excuse for the untimely filing his
cross-motion for summary judgment.
                                       D.
      Finally, Spooner argues that the State of Louisiana and the Department
of Public Safety waived sovereign immunity under the Eleventh Amendment by
removing the case to federal court. The State defendants did not respond to this
contention in their brief. Spooner is correct. See Lapides v. Board of Regents of
the University System of Georgia, 535 U.S. 613 (2002); Meyers v. Texas, 410 F.3d
236 (5th Cir. 2005).

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                                  No. 06-31021

      Nevertheless, we affirm the summary judgment in favor of the State
defendants on other grounds supported by the summary judgment record.
Spooner alleged that the Department of Public Safety failed properly to train
Detective Mitchell and that the State is vicariously liable for Detective Mitchell’s
actions in falsely arresting him and for Trooper Edmundson’s actions in
disseminating false information to the media about him. Because Detective
Mitchell had probable cause to arrest Spooner and because Spooner failed to
produce any summary judgment evidence that Trooper Edmundson
disseminated false information about him to the media, the district court did not
commit reversible error in granting summary judgment for the State defendants
even though the basis for its judgment -- Eleventh Amendment immunity -- was
improper.
                                        III.
      For the foregoing reasons, the summary judgments in favor of the
defendants are
                                                                      AFFIRMED.




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