              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 98-30663
                        _____________________

TIMOTHY P. COLLINS,

                                                  Plaintiff-Appellee,

                               versus

JOHN DOYLE, Individually and in his capacity
as Police Chief for the City of Harahan; ET AL.,

                                                           Defendants,

JOHN DOYLE, Individually and in his
official capacity as Police Chief
for the City of Harahan; CITY OF HARAHAN,

                                                Defendants-Appellants,

                               versus

CENTURY INDEMNITY COMPANY, as the successor
to Insurance Company of North America;
INSURANCE COMPANY OF NORTH AMERICA,

                                            Defendants-Appellees.
_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
                           (95-CV-620-S)
_________________________________________________________________
                         February 9, 2000

Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     This section 1983 action arises out of the prosecution and

ultimate acquittal of Timothy Collins on charges of public contract

fraud and theft.      Following his acquittal, Collins filed this

     *
      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this opinion should not be published and is not precedent except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.
action against Harahan Police Chief John Doyle, in his individual

and official capacity, and against the City of Harahan, Louisiana,

asserting federal claims for malicious prosecution and defamation

under 42 U.S.C. § 1983, and state law claims against Doyle for

malicious prosecution, defamation, and abuse of process.1 The jury

awarded     Collins    nearly   $600,000   in   compensatory     damages   and

$300,000 in punitive damages against Doyle in his individual

capacity.     We hold that probable cause supported the challenged

prosecution.     We, therefore, reverse the judgment of the district

court and vacate the damage award.

                                       I

                                       A

     On October 31, 1990, Timothy Collins was appointed by Carlo

Ferrara, Mayor of the municipality of Harahan, Louisiana, to serve

as the Recreation Director for the City of Harahan.              As director,

Collins was paid an annual salary of $19,000.            One of Collins’s

many responsibilities as director was to supervise the various

sporting     leagues    that    were   organized   at   Soniat    Playground

(“playground”).       It was Collins’s duty to outfit the players.2         He

    1
     Collins also filed a section 1983 claim against Doyle both in
his official and individual capacities, and against the City of
Harahan for violating his “constitutional right to be free from
retaliation for freely associating with others for the common
advancement of political beliefs and ideals.” The jury returned a
verdict in favor of the defendants on this claim, and Collins has
not sought review of the jury’s verdict in this regard.
        2
      The record indicates and Collins’s brief acknowledges that
this was an official duty that was specifically recognized and




                                       2
was   authorized   to   buy   the   uniforms     and     equipment    (known   as

“disposables”) from local sporting goods vendors and to then make

them available for purchase by the playground’s patrons.                  Public

funds were not used to purchase disposables.                    Instead, Collins

purchased the disposables on open account or with his own private

funds. If the patrons failed to pay for the uniforms or equipment,

Collins could seek reimbursement from the Harahan Parents Club, the

playground’s booster club.3

      During the summer of 1991, Collins began a summer camp program

at the playground.      This program was the first such event the City

of Harahan had ever sponsored at this facility.                   Collins hired

local teacher Sherrie Stanton to help him run the summer camp.

Among her many duties, Stanton was responsible for registering

participants,   supervising     camp       counselors,    and    collecting    the

tuition from camp participants.               After Stanton collected the

campers’ tuition, she turned it over to Collins.                 The summer camp

raised over $29,000 for the City of Harahan in 1991.

                                       B

      On May 3, 1992, Theresa Smithey, an assistant clerk for the

City of Harahan, told Harahan Chief of Police John Doyle of her

suspicions that Collins was stealing money from the City.                Smithey



required by the City of Harahan.
        3
       Collins’s brief states that as of January 1, 1991, the
Harahan Parents Club refused to reimburse him for shortfalls in
connection with the purchasing of disposables.




                                       3
further said that, in connection with the summer camp, Collins was

not turning in any supporting documents with the various checks

collected.   Thus, Smithey said, it was very difficult for the city

to determine whether all of the money was being turned over.

Additionally, Smithey told Collins that between twenty-six and

twenty-eight campers’ checks were not deposited into the summer

camp account.   Instead, the checks were being diverted to another

account.

     Following the talk with Smithey, Doyle ran Collins’s name

through the police computer.    He discovered that Collins had an

outstanding arrest warrant in Texas for passing bad checks.   This

warrant was thought to lend support to Smithey’s allegations, and

Doyle decided to bring the matter to the attention of Mayor

Ferrara.

     Doyle asked Ferrara if he had ever received any summer camp

records from Collins.   Ferrara had not, despite numerous requests.

Ferrara said that he had begun an informal internal investigation

of Collins as    a result of calls he had received from local

suppliers regarding outstanding recreation invoices. Mayor Ferrara

also told Doyle about an unauthorized account that Collins opened

on December 19, 1991, and closed on March 7, 1992, at the Whitney

Bank under the name “Harahan Dixie Youth Baseball.”

     On May 7, 1992, Barbara Butera, the city clerk responsible for

records, gave a formal statement to the police department, stating

that Collins was not following proper accounting procedures, when




                                 4
turning over to the City money collected from playground patrons.

Additionally, Butera gave the police copies of two letters she had

written to the mayor, noting Collins’s failure to follow City

procedure.

     Further investigation revealed that a number of checks written

by playground patrons were cashed at a local Old Hickory Food

Store.   Other checks were deposited into an account in the name of

Collins & Associates.     These funds were used to cover fourteen NSF

checks Collins had written on this account in the days prior to

their deposit--one of which resulted in the issuing of an arrest

warrant for Collins.

     Doyle also learned of several unpaid invoices from Staples

Sporting Goods (“Staples”), a company that supplied merchandise to

the Harahan Recreation Department.          The unpaid balance on the

invoices were for $1,089.99, $195.00, and $196.02.          Doyle further

discovered    that   Collins   had   purchased   several   items   for   the

Department from Rooster’s Team and Athletic Goods (“Rooster’s”) and

from Collins & Associates.      Additional investigation revealed that

Collins had been employed by Rooster’s for some time and that

according to court records he owned a 10% interest in the company.

Furthermore, the investigation established that Collins did not

have authority from the City to purchase any goods from Collins &

Associates.

                                      C




                                      5
     On July 21, 1992, Doyle, concluded that probable cause existed

to indict Collins for public contract fraud and theft.     He then

turned the case over to the Criminal Investigation Division of the

district attorney’s office and requested that a grand jury be

convened.    On December 5, 1992, Bob Long, supervising assistant

district attorney in the Screening Division, prepared a Bill of

Information4 charging Collins with two counts of public contract

fraud in violation of Louisiana Revised Statute section 14:1405 and

      4
       The Bill of Information charged Timothy Collins with the
following:

     Count 1). . . between January 2, 1992 through January 7,
     1992 with force of arms, in the parish aforesaid, and
     within the jurisdiction of the Twenty-Fourth Judicial
     District Court of Louisiana, in and for the Parish
     aforesaid, violated R.S. 14:140 in that he did, while
     employed as director of recreation for the City of
     Harahan, Louisiana, use that position to secure the
     expenditure of city funds to purchase sporting goods from
     Collins & Associates, a business which he is the owner.

     Count 2) And the District Attorney further gives the
     Court to understand and be informed that January 10, 1992
     through April 20, 1992 the said Timothy Collins violated
     R.S. 14:140 in that he did, while employed as director of
     recreations for the City of Harahan, Louisiana, use that
     position to secure the expenditure of city funds to
     purchase sporting goods from Roosters Team and Athletic
     Goods, Inc., a Corporation of which he is a stockholder.

     Count 3) And the District Attorney further gives the
     Court to understand and be informed that April 1, 1991
     through November 30, 1991 the Said Timothy Collins
     violated R.S. 14:67 in that he did commit theft of funds
     valued at in excess of $500.00, from City of Harahan.

     Louisiana Revised Statute section 14:140 provides in relevant
part:

     A.     Public contract fraud is committed:




                                  6
one count of theft of city funds in violation of Louisiana Revised

Statute   14:67.6       An   arrest   warrant   was   issued   for   Collins.

Following Collins’s arrest, he posted bond and was released.

     The case against Collins was assigned to Assistant District

Attorney Wicker to prepare and try.        After reviewing the evidence,

Wicker amended the Bill of Information to include seven counts.

The first two counts for public contract fraud remained the same as

in the first Bill.      Wicker, however, expanded the third count for

theft,7   and   added   additional     counts   for   unauthorized    use   of


           (1) When any public officer or public
           employee shall use his power or position as
           such officer or     employee to secure any
           expenditure of public funds to himself, or to
           any partnership of which he is a member, or to
           any corporation of which he is an officer,
           stockholder, or director.

La.Rev.Stat.Ann. § 14:140 (West 1999).

     Louisiana Revised Statute section 14:67 provides in relevant
part:

     A.    Theft is the misappropriation or taking of anything of
           value which belongs to another either without the consent
           of the other to the misappropriation or taking, or by
           means    of    fraudulent    conduct,    practices,    or
           representations.     An intent to deprive the other
           permanently of whatever may be the subject of the
           misappropriation or taking is essential.

La.Rev.Stat.Ann. § 14:67 (West 1999).
     7
      Count Three was amended as follows:

     Count 3) And the District Attorney further gives the
     Court to understand and be informed that between April 1,
     1991 and on or about November 30, 1991 the said Timothy
     Collins violated R.S. 14:68 in that he did commit the
     unauthorized use of sporting goods owned by Staples




                                       7
additional    sporting   goods,   theft     of    additional    money,    public

payroll fraud, and general malfeasance.            Counts Four through Seven

of the Amended Bill of Information were subsequently dismissed or

not prosecuted     due   to   financial     and    time    constraints   on    the

district attorney’s office.

     On January 15, 1993, the Amended Bill of Information was

presented    to   Louisiana   District      Court    Judge    Porteous    for    a

determination of whether the charges were supported by probable

cause.     After examining the evidence, Judge Porteous found that

sufficient    probable   cause    existed    for     the   prosecution    to    go

forward.    At trial, Collins was acquitted of all charges.

                                     D

     On February 22, 1995, Collins filed this section 1983 action

against Doyle individually and in his official capacity as the

Chief of Police for the City of Harahan, and against the City of

Harahan alleging malicious prosecution and defamation.8                  He also

alleged state law claims against Doyle for malicious prosecution,

defamation, and abuse of process.             The case was tried between

October 21, 1997 and October 31, 1997.            The jury returned a verdict

against Doyle and the City of Harahan finding them liable under


     Sporting Goods valued at $1,877.90 and of sums of money
     in excess of $1,000 given to him by parents and coaches
     of various team members playing ball through Harahan
     Playground in payment for said sporting goods he obtained
from Staples Sporting Goods.
    8
     The complaint also named Century Indemnity Company, the City
of Harahan’s insurer, as a defendant.




                                     8
section 1983 for malicious prosecution and defamation.                   The jury

also found them liable on the state law claims.                The jury awarded

Collins $597,578 in compensatory damages9 and $300,000 in punitive

damages against Chief Doyle individually.10             On June 29, 1998, the

City and Doyle, in his official capacity as Chief of Police, filed

a timely notice of appeal.              On July 6, 1998, Doyle, in his

individual capacity, filed a timely notice of appeal.

                                        II

                                        A

     We begin by addressing the City of Harahan’s liability for the

actions of Chief Doyle.      The law is well settled that in order to

sustain a claim for relief under 42 U.S.C. § 1983 against a

municipal defendant, the plaintiff must show the existence of an

officially      adopted   policy   or       an   established    custom    of   the

municipality that causes injury and a causal connection between

that policy or custom and the deprivation of a constitutional

right.       See Monell v. Dep’t of Social Servs., 436 U.S. 658, 694

(1978); Flores v. Cameron County, Texas, 92 F.3d 258, 263 (5th Cir.

         9
       The jury awarded Collins $200,000 for loss of income and
earning capacity, $300,000 for emotional distress, $50,000 for loss
of reputation, and $47,578 for costs and attorney’s fees.
    10
     The court entered an order dated March 26, 1998, stating that
because the jury found that the actions of Chief Doyle were
“intentionally fraudulent and with knowledge of falsity and
reckless disregard,” the City’s liability for those actions are not
covered under its policy with Century Indemnity Company because
they fall within the policy’s exclusion for “fraudulent acts.”
Thus, the court rendered judgment in favor of Century, denying
coverage.




                                        9
1996).   The policies that give rise to section 1983 liability must

“be set by the government’s lawmakers, or by those whose edicts or

acts may fairly be said to represent official policy.”           McMillian

v.   Monroe   County,   Alabama,   520   U.S.   781,    785   (1997).   In

identifying those officials or governmental bodies who speak with

final policymaking authority for the local government, the court

must focus on the specific “action alleged to have caused the

particular constitutional or statutory violation at issue” and

determine whether the party responsible for that action is the

final policymaker in that particular area.        Id.

      In determining whether the party responsible for the alleged

violation is the final policymaker, courts must consider          “[S]tate

law (which may include valid local ordinances and regulations)

[which] will always direct a court to some official body that has

the responsibility for making or setting policy in any given area

of a local government’s business.”         See Flores, 92 F.3d at 263

(citing City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988)).

Although it is clear that the “simple labeling” of a state official

will not automatically be conclusive, in determining “who clearly

makes [municipal] policy, . . . our understanding of the actual

function of a governmental official, in a particular area, will

necessarily be dependent on the definition of the official’s

function under relevant state law.”        McMillian, 520 U.S. at 786.

Thus, the relevant federal question can be answered only after

considering the provisions of state law that define the [official




                                   10
duties].”       Id. (quoting Regents of the Univ. of Cal. v. Doe, 519

U.S. 425, 430 n.5 (1997).                Consequently, the identification of

those officials whose decision represent the official policy of the

local government unit is itself a legal question to be resolved by

the trial judge” and is thus subject to de novo review.                   Flores, 92

F.3d at 263 (citing Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701,

737 (1989)).

       Collins argues that Doyle was the chief policymaker for

Harahan for the purposes of Monell liability because he “personally

conducted      the     investigation      and     personally   filed     the   C.I.D.

Report.”       As a result, Collins argues, “Harahan is liable because

Doyle,    as     Chief    of   Police,    personally      maliciously    prosecuted

Collins thereby depriving Collins of his Fourth Amendment right to

be free from malicious prosecution.” Alternatively, Collins argues

that even if pursuant to Louisiana law the sheriff is not the chief

policymaker for purposes of initiating criminal proceedings, in

this     case,     the     district      attorney     was    not   an    “impartial

intermediary” and thus the city is subject to Monell liability.

       The defendant counters by arguing that “while Doyle might be

a policymaker for Harahan, he is not the policymaker for Harahan

concerning       the     action   alleged    to    have   caused   the   particular

constitutional violation at issue here.”                  Although the defendant

recognizes “that Doyle was the official policymaker for the City

for law enforcement,” in analyzing the City’s Monell liability for

a claim based on malicious prosecution, Doyle, under Louisiana law,




                                            11
lacked “the authority to institute the criminal proceeding against

the   plaintiff.”         Thus,    the     defendant       argues,     because,   under

Louisiana    law,   “Doyle        has    no    power     over    the   institution   of

prosecution, he cannot create a policy for Harahan concerning the

institution of prosecution.”

      We   thus   begin     our    inquiry         by   considering     the   statutory

authority of Chief Doyle.               Louisiana Revised Statute section 423

provides in relevant part:

      The marshal shall be the chief of police and shall be ex
      officio   a   constable.      He   shall   have   general
      responsibilities for law enforcement in the municipality,
      and shall be charged with the enforcement of all
      ordinances within the municipality and all applicable
      state law. He shall perform all other duties required of
      him by ordinances.

La.Rev.Stat.Ann. § 423 (West 1999).                 The parties stipulated to the

fact that Doyle was the official policymaker for the city of

Harahan for law enforcement.              However, this stipulation does not

specifically address the question presented by this appeal, that

is,   whether     Doyle     has     the       authority     to    initiate    criminal

proceedings and whether he is the official policymaker for those

purposes.    Article 61 of the Louisiana Code of Criminal Procedure

states:

      Subject to the supervision of the attorney general, as
      provided in Article 62, the district attorney has entire
      charge and control of every criminal prosecution
      instituted or pending in his district, and determines
      whom, when, and how he shall prosecute.

La. Code Crim. Pro. art. 61 (West 1999).                   The Code makes it clear

that the district attorney, not the sheriff, has the complete




                                              12
authority to determine who, when, and how criminal proceedings will

be brought against.        Thus, relying on the strict dictates of

Louisiana law, it seems indisputable that Doyle is not the official

chief policymaker for the city of Harahan for purposes of Monell

liability.

     The plaintiff, however, argues that because of the integral

role Doyle played in the prosecution of this case, the district

attorney was not an “impartial intermediary” and thus Doyle acted

in the capacity of a policymaker for purposes of Monell liability.

We have recognized that when, pursuant to established custom, the

police and the district attorney’s office have a relationship such

that the district attorney does not exercise independent judgment

in prosecuting cases, the sheriff will be considered a policymaker

for such purposes.    See Hale v. Fish, 899 F.2d 390, 401 (5th Cir.

1990); Hand v. Gary, 838 F.2d 1420 (5th Cir. 1988).         Here, however,

other than the Collins’s conclusionary assertions that the district

attorney was not acting as an impartial intermediary, he has failed

to point to any evidence that places Doyle in a prosecutorial role

beyond the customary duties of law enforcement officers.

     The record contains uncontroverted evidence supporting the

municipality’s contention that the district attorney’s office had

complete discretion to decide whether to initiate and pursue

charges against Collins.         On July 21, 1992, Doyle expressed his

concerns regarding Collins’s illegal activities to the Criminal

Investigation   Division    of    the    district   attorney’s   office   and




                                        13
requested a grand jury be convened.     Bob Long, the supervising

assistant district attorney in the Screening Division, reviewed all

of the evidence presented by Doyle in support of his suspicions.

He then discussed the case with Assistant District Attorney Wicker.

After a complete review of the evidence, on December 3, 1992, the

district attorney issued a Bill of Information charging Collins.

Between July 21 and December 3, the only contact that Doyle had

with the district attorney’s office was in providing a videotape as

additional evidence and in sending two letters.11   The record does

not reflect that Doyle took any steps that “pressured” the District

Attorney’s office into bringing the charges against Collins.    To

the contrary, the record reflects that the district attorney acted

within the bounds of an “independent intermediary.”   Consequently,

because Doyle did not act in the role of an official policymaker in

the decision to prosecute Collins, he cannot be considered a

policymaker for the purpose of Monell liability.




     11
      The first letter dated August 5, 1992, and addressed to the
Honorable John Mamoulides, district attorney for the Parish of
Jefferson, was sent by Doyle in response to numerous requests he
had received from public officials, including the mayor, regarding
the status of the case.    The second letter, dated September 9,
1992, and also addressed to the Honorable John Mamoulides, was
characterized by Doyle as “common” and extended the further
assistance of the sheriff’s department to the district attorney’s
office if it felt the underlying facts of the Collins’s case
required further development.      Neither letter contained any
language regarding Doyle’s subjective belief about Collins’s guilt,
or attempted to pressure the district attorney to bring charges
against Collins.




                                14
     In sum, because we hold as a matter of law that Doyle was not

the official policymaker for purposes of initiating the prosecution

against Collins, the City of Harahan, and Doyle, in his official

capacity, cannot be held liable under section 1983 for these

actions.12   Thus, to the extent that the judgment of the district

court imposes liability upon the City of Harahan and upon Doyle in

his official capacity, it is reversed.

                                    B

     We   now   turn   to   Collins’s    claims   against   Doyle   in   his

individual capacity.        Collins argues that because Doyle lacked

probable cause to believe that he was guilty of public contract

fraud and theft, his actions constitute malicious prosecution.13

     12
      In Hafer v. Melo, 502 U.S. 21 (1991), the Supreme Court held
that “[s]uits against state officials in their official capacity .
. . should be treated as suits against the State.”      Id. at 25
(citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); see also,
Brooks v. George County, Mississippi, 84 F.3d 157, 165 (5th Cir.
1996)(stating that a “suit against [the] Sheriff in his official
capacity is treated as a claim against George County”). The Hafer
Court held, when state officers are sued for damages in their
official capacities, they “are not ‘persons’ for purposes of the
suit because they assume the identity of the government that
employs them.”    Hafer, 502 U.S. at 362.      Therefore, because
Collins’s claims against the City of Harahan fail, his claims
against Doyle in his official capacity likewise fail.
     13
      Although it is clear that the Fourteenth Amendment will not
provide a basis for a section 1983 claim for malicious prosecution,
see Albright v. Oliver, 510 U.S. 266 (1994), we need not reach the
question of whether the Fourth Amendment can provide such a basis
to decide this case. Even assuming the Fourth Amendment provides
a basis for a section 1983 claim for malicious prosecution,
Collins’s claim fails as a matter of law. Thus, because it is not
clear whether the Fourth Amendment will support a section 1983
malicious prosecution claim, we reserve it for another day.
Compare Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th




                                    15
The elements of a federal claim for malicious prosecution under

section 1983 are:

     1)   criminal action commenced against the plaintiff;
     2)   that the prosecution was caused by the defendants or with
          their aid;
     3)   that the action was terminated in the plaintiff’s favor;
     4)   that the plaintiff was innocent;
     5)   that the defendants acted without probable cause;
     6)   that the defendant acted with malice; and
     7)   that the criminal proceedings damaged the plaintiff.

Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(citing Hayter v.

City of Mount Vernon, 154 F.3d 269, 275 (5th Cir. 1998).      Under

Louisiana law, the elements for a claim of malicious prosecution

are similar.14   See Stark v. Eunice Superette, Inc., 457 So.2d 291,

(La.Ct.App. 3d Cir. 1984)(quoting Jones v. Soileau, 448 So.2d 1268

(La. 1984)).     If the plaintiff fails to meet his burden with



Cir. 1995)(stating that the Fourth Amendment will provide a
sufficient basis for a section 1983 claim for malicious
prosecution), with Cook v. Houston Post, 616 F.2d 791, 794-95 (5th
Cir. 1980)(holding that “under the Constitution, appellants have no
claim cognizable under § 1983” for malicious prosecution), and Kerr
v. Lyford, 171 F.3d 330, 342-343 (5th Cir. 1999)(Jones, J.,
specially concurring)(stating that considerable doubt exists as to
whether the Fourth Amendment will provide a constitutional basis
for a malicious prosecution claim).
    14
      To sustain a claim for malicious prosecution under Louisiana
law, the plaintiff must establish:
     (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.
Stark v. Eunice Superette, Inc., 457 So.2d 291, (La.Ct.App. 3d Cir.
1984)(quoting Jones v. Soileau, 448 So.2d 1268 (La. 1984)).




                                 16
respect to any one element of his claim for malicious prosecution,

his claim fails.      See Kerr, 171 F.3d at 340.

      We focus first on the plaintiff’s burden of establishing that

the defendant lacked probable cause to initiate the underlying

proceeding.       The plaintiff must adduce sufficient evidence to

demonstrate that, at the time the charges were initiated, the

defendant lacked sufficient “knowledge that would warrant a prudent

person’s belief that the person arrested had already committed or

was committing a crime.”          Duckett v. City of Cedar Park, Texas.,

950 F.2d 272, 278 (5th Cir. 1992).               Probable cause requires

“substantially less than that sufficient to support a conviction--

i.e.,    proof    beyond    a    reasonable   doubt--but    more      than   bare

suspicion.”       United States v. Muniz-Melchor, 894 F.2d 1430, 1438

(5th Cir. 1990).      Further, the evidence must be “viewed in light of

the observations, knowledge, and training of the law enforcement

officers involved.”        Id.

      In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court

adopted    a   “totality    of   the   circumstances   test”     to   determine

probable cause in a particular circumstance.               Id.   at 241.     The

Court reasoned that “probable cause is a fluid concept--turning on

the assessment of probabilities in particular factual contexts--not

readily, or even usefully, reduced to a neat set of legal rules.”

Id.     at 232.    Instead, the Court held, in making a determination

regarding the existence of probable cause, courts should embark on

a “practical, common-sense decision whether, given all of the




                                       17
circumstances . . . there is a fair probability that” the person

who has been charged committed the crime charged therein.                 Id.    at

238; see also Gladden v. Roach, 864 F.2d 1196, 1199 (5th Cir.

1989)(holding that a police officer has probable cause if, at the

time of the arrest he is in possession of such facts that would

warrant a     prudent   person    to    believe   that     the   person   charged

committed   the    crime).       In    making   such   a   determination,       the

subjective beliefs and motivation of the charging officer, even if

his conduct was malicious or otherwise improperly motivated, are

irrelevant.       Anderson v. Creighton, 483 U.S. 635, 641 (1987).

Further, “to the extent that the facts undergirding the probable

cause determination are undisputed, [the court] may resolve the

issue as a matter of law.”        Kerr v. Lyford, 171 F.3d 330, 340 (5th

Cir. 1999)(citing Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir.

1994); see also Dougherty v. Szivos, 209 F.2d 935, 936 (5th Cir.

1954)(stating that “[i]t is well recognized that, in an action for

malicious prosecution, the question of what circumstances amount to

probable cause is a question of law for the trial court”).

     Our review of the record convinces us that Collins has not

adduced evidence sufficient to carry his burden of establishing

that Doyle lacked probable cause when he alerted the district

attorney’s office of his conclusion that Collins had violated

Louisiana law.15 Indeed, the evidence demonstrates that each of the

     15
      Our circuit has not had an opportunity to address the issue
of whether a showing of probable cause with respect to one count of




                                        18
three counts of the Amended Bill of Information that were initiated

and prosecuted with the assistance of Doyle were supported by

probable cause.16   Thus, we conclude, as we must, that, as a matter

of law, Collins’s claim fails.        See Dougherty, 209 F.2d at 937

(holding that “the plaintiff has the burden of establishing that

the defendant acted without probable cause,” and the failure of the

plaintiff to meet this burden will result in the entry of a

judgment as a matter of law in favor of the defendant).

     Count One of the Amended Bill of Information charged Collins

with a violation of Louisiana Revised Statute 14:140, “in that he

did, while employed as director of recreation for the City of



an indictment that charges various criminal acts arising out of the
same transaction or occurrence is sufficient to defeat a claim of
malicious prosecution as to all of the charges stemming from those
events. This issue, however, has been addressed by at least one of
our sister circuits. In Posr v. Doherty, 944 F.2d 91 (2d Cir.
1991), the Second Circuit held:
     [W]e should not allow a finding of probable cause on [one
     charge] to foreclose a malicious prosecution cause of
     action on charges requiring different, and more culpable,
     behavior. [If that were the rule,] an officer with
     probable cause as to a lesser offense could tack on more
     serious, unfounded charges which would support a high
     bail or a lengthy detention, knowing that the probable
     cause on the lesser offense would insulate him from
     liability for malicious prosecution on the other
     offenses.
Id. at 100. The circumstances of this case do not require us to
resolve this question. Thus, we expressly reserve it for another
day.
    16
      It is important to note that we do not hold that the evidence
supporting Counts One through Three of the Amended Bill of
Information was sufficient to convict Collins of the crimes charged
therein.   Rather, we hold only that probable cause existed to
charge Collins with those crimes.




                                 19
Harahan, Louisiana, use that position to secure the expenditure of

city funds to purchase sporting goods from Collins and Associates,17

a business which he is the owner.”          This conduct was alleged to

have occurred between January 2, 1992 and January 7, 1992.

     That Doyle had a basis for probable cause before initiating

charges under Count One was confirmed by Collins’s own testimony at

trial.   Collins admitted that he had purchased $150.45 worth of T-

shirts for Kayman Company, a sporting goods wholesaler who did not

sell directly to the public.           The shirts were purchased on the

Collins & Associates’ account.         He admitted that the T-shirts were

purchased for distribution during a baseball camp he was conducting

during the Christmas holidays in 1991.         Collins further testified

that the T-shirts were distributed to camp participants, and that

a portion of the registration fee for the camp was used to pay for

the shirts.

     Additionally, Collins testified that, to cover the cost of the

T-shirts, he wrote a check payable to himself from a bank account

he had opened.     He admitted that, without the knowledge or consent

of the City of Harahan, he had opened the account to deposit the

registration fees collected for camp patrons.          The check was then

deposited   into   the   Collins   &    Associates’   commercial   checking

account.    It is important to note that Doyle was aware of the fact

that Collins did not have permission to conduct any business on

    17
      Collins and Associates is not a legal entity.         It is the name
under which Collins conducted business.




                                       20
behalf of the City of Harahan with Collins & Associates.            This fact

was also confirmed by Collins’s testimony.

      These record facts make clear that probable cause existed for

Doyle to believe that Collins was conducting City business with an

organization in which he had a proprietary interest.                   It is

undisputed that Collins conducted business in the name of Collins

& Associates.    As we have noted, Collins bought a number of T-

shirts from a wholesaler in the name of Collins & Associates, which

were later distributed during a City-run baseball camp and paid for

from proceeds collected from the camp patrons.            These facts were

known by Doyle prior to the initiation of criminal proceedings

against Collins.      Thus, Collins has failed to demonstrate that

Doyle lacked probable cause to believe that he committed the crime

he   was   charged   with   in   Count   One   of   the   Amended   Bill   of

Information.

      Count Two of the Amended Bill of Information charged Collins

with violating the same section of the Louisiana Code for spending

“city funds to purchase sporting goods from Rooster Team and

Athletic Goods, Inc., a Corporation of which he is a stockholder.”

Once again, the undisputed evidence confirms the facts alleged by

Doyle prior to the initiation of this charge against Collins.              The

evidence established that Collins owned “ten shares” in Rooster’s.

This evidence came from Collins’s own sworn statements made to the

United States Bankruptcy Court in 1989.        In his schedule of assets

filed with the court, Collins admits to owning “10 shares of stock




                                    21
in Rooster’s Team & Athletic Goods.”                Further, Collins failed to

introduce    any     evidence       at   trial     establishing       that    he     had

transferred his interests in Rooster’s prior to 1991.

     Additionally, four bills of sale were introduced into evidence

that confirmed Rooster’s made four sales during the relevant period

of time to the Harahan Recreation Department in the amounts of

$2,000,   $1,362.50,        $191.40,     and    $427.10.       This   evidence       was

bolstered by three “Request Forms” for funds from the Department of

Recreation of Harahan to pay Rooster’s for recreational equipment

that was purchased.              These request forms were each signed by

Collins     and     were    for     $2,000.00,      $1,362.50,        and    $191.40,

respectively.

     Collins       does    not   dispute    that   he   made    the   purchases       in

question from Rooster’s.           He argues, however, that he did not own

any stock or proprietary interest in Rooster’s. He offers evidence

of the fact that the Louisiana Secretary of State did not have any

records indicating          that   Collins      owned   10   shares    of    stock    in

Rooster’s.        He also testified that he is no longer employed by

Rooster’s. Collins does admit, however, that on September 3, 1992,

Rooster’s purchased a stock related interest from him in the

company for $2,500.

     We therefore think that it is clear that Doyle had probable

cause to believe that Collins held a proprietary interest in

Rooster’s, and that he was conducting business on behalf of the

city with Rooster’s prior to the initiation of this charge against




                                           22
Collins.     We must conclude, therefore, that Collins has failed to

meet   his   burden    of   proving   a    prima   facie   case   of   malicious

prosecution, and that his claim fails as a matter of law.

       Count Three of the Amended Bill of Information charged Collins

with a violation of Louisiana Revised Statute 14:68, “in that he

did commit the unauthorized use of sporting goods owned by Staples

valued at $1,877.90 and of sums of money in excess of $1,000 given

to him by parents and coaches of various team members playing ball

through Harahan Playground in payments for said sporting goods he

obtained from Staples.”         A review of the record shows that the

charge was supported by probable cause.

       The record indicates that prior to initiating charges against

Collins, Doyle was aware that Collins was listed as the buyer and

his home address as the billing address on unpaid invoices totaling

over    $1,806   for   merchandise        purchased   from   Staples.18     The

uncontradicted testimony of Collins’s own witness at trial confirms

these facts.     Moreover, although a formal proceeding had not been

undertaken by Staples to recover the unpaid balance, Collins’s own

witness testified that Staples had spoken to Collins on numerous

occasions prior to the filing of these criminal charges, and that

at some point Collins stopped returning the phone calls from

Staples.

       18
      The record indicates that invoices were sent to Collins on
January 1, 1992, and February 1, 1992, indicating that he owed
Staples Sporting Goods in excess of $1,806 for sporting goods
purchased for the playground.




                                       23
     Doyle was also aware that Collins, by depositing and cashing

various checks, had failed to follow recognized informal city

procedures regarding payments received from playground patrons,

which funds were to be turned over to the City.     Specifically, he

was aware of the fact that Collins had deposited checks written by

patrons of the playground to cover the cost of many of the items

purchased from Staples directly into his personal checking account

and that he had cashed patron’s check for these goods at the Old

Hickory Food Store in Harahan.19    Collins argues that some of these

checks were for reimbursements for disposables.     Still, that does

not excuse him of the fact that a large number of the checks were

personally deposited into his account, or personally cashed at the

Old Hickory Food Store and that payment was not made to Staples for

the goods after the passage of over one year.         This evidence,

together with the fact that Doyle was aware that Collins had

bounced a series of checks during this time period, and that the

checks deposited into his account were used to cover these NSF

checks, provided probable cause for him to believe that Collins had



    19
      The record contains undisputed evidence that Chief Doyle was
aware of the fact that Collins had cashed numerous checks written
by playground patrons for athletic equipment at the Old Hickory
Food Store in Harahan prior to the initiation of charges against
him. It is irrelevant whether the checks were payable to “Cash” or
“The City of Harahan.” The facts that are relevant are that the
checks were written by the patrons for athletic equipment, that
Collins cashed the checks, that he did not turn the money over to
the City or to Staples, and that he otherwise made no accounting to
the City.




                                   24
committed the crime charged.20           Consequently, because Collins has

failed to demonstrate that Doyle lacked probable cause to support

this count, his federal and state malicious prosecution claims

fail.

     In sum, Collins has failed to demonstrate that Doyle lacked

probable cause to believe that Collins had committed any of the

crimes charged in the Amended Bill of Information.                  Consequently,

Collins’s federal and state law malicious prosecution claims fail

as a matter of law.21            Thus, the judgment against Doyle, in his

individual capacity, based on malicious prosecution is reversed.

                                             C

                                         (1)

     We now turn to Collins’s arguments in support of the jury’s

verdict       against   Doyle,    in   his       individual   capacity,   based   on

defamation.       We begin by addressing his section 1983 claim.



         20
        It should be noted that Collins’s own testimony at trial
confirmed the fact that numerous checks written by playground
patrons were deposited into his account to cover several NSF
checks. At trial Collins testified as follows:
Q.   What was the money used for in the [Collins & Associates]
     account?
A.   The money that was deposited into the account?
Q.   Yes.
A.   It was put into my account, hopefully to stop some of the NSF
     charges.
Q.   NSF charges were for personal expenses?
A.   Yes, they were.
        21
       Because we hold that Collins’ malicious prosecution claims
fail as a matter of law, it is unnecessary to address the question
whether Sheriff Doyle is entitled to qualified immunity.




                                         25
     The Supreme Court in Paul v. Davis, 424 U.S. 693 (1976),

stated unequivocally that defamation that does not result in the

deprivation of “a life, liberty, or property interest recognized

and protected by state law or guaranteed by one of the provisions

of the Bill of Rights that has been incorporated” is not actionable

under section 1983.         Id. at 710-711; see also, Doe v. State of

Louisiana,   2    F.3d     1412,   1421    (5th   Cir.   1993)(stating   that

defamation is not actionable under section 1983 unless it leads to

the deprivation of a constitutionally guaranteed right).                 This

doctrine has become known as the “stigma plus infringement test”

and requires the plaintiff to prove that the actions of the

defendant resulted in the “deprivation of a protected interest.”

Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir. 1996).              If the

plaintiff fails to demonstrate the deprivation of a protected

interest resulting from the defendant’s actions, his claim fails as

a matter of law.     Id.

     In his appellate brief, Collins states that “the defamatory

statements made by Doyle--the false criminal charges--resulted in

his prosecution in violation of his constitutional right to be free

from malicious prosecution.”        This is the lone protected interest

cited by Collins in support of his claim for defamation under

section 1983.22     Assuming the deprivation of such a right can

      22
       There is some indication in the trial record and in his
appellate brief that Collins introduced evidence of the fact that
he has lost employment opportunities as a result of the actions of
Doyle in an attempt to establish a constitutionally cognizable




                                      26
support a claim for defamation under section 1983, the actions of

Doyle, as we have previously concluded, were supported by probable

cause.       Consequently,        Collins     has     failed    to        satisfy   the

infringement portion of the “stigma plus” test.                     Assuming he has

been defamed, he has not shown that the defamation infringed on a

constitutionally     protected        interest.       Thus,    Collins’s       federal

defamation claim fails as a matter of law.

                                        (2)

       We now turn to the defamation claim based on state law.

Essentially    for       the   same    reasons      that   Collins’s         malicious

prosecution claims fail, his defamation claim based on state law

fails as a matter of law.         It is a long-standing canon of Louisiana

tort   law   that   “a    plaintiff     cannot      prevail    in    an    action   for

defamation which is combined with one for malicious prosecution

where he fails to prove malicious prosecution; and the two caused

are merged into one.”          Watson v. Church’s Fried Chicken, Inc., 527

So.2d 979, 981 (La.Ct.App. 4th Cir. 1988)(citing Dearmond v. St.


injury. The Supreme Court, however, has expressly rejected the
existence of a constitutionally cognizable injury for the damage to
the reputation of the plaintiff resulting in the loss of future
employment opportunities. See Seigert v. Gilley, 500 U.S. 226, 234
(1991)(stating that any damages flowing from an injury to the
plaintiff reputation in connection with his employment which result
in the impairment of his future ability to gain future employment,
“may be recoverable under state tort law, but is not recoverable in
a [federal civil action]” because such an injury does not flow from
the   violation    of   a   constitutionally    protected   right).
Consequently, this evidence will not be considered in determining
whether the actions of Doyle resulted in the depravation a
constitutional right sufficient for Collins to meet his burden
under Paul v. Davis, 424 U.S. 693 (1976).




                                         27
Amant, 4 So. 72 (La. 1888) & Enders v. Boisseau, 27 So. 546 (La.

1900)).      In Dearmond, the Louisiana Supreme Court explained the

rule as follows:

       The defamation of character alleged consists in merely
       making public statements that plaintiff was guilty of the
       crime for which he was arrested and prosecuted upon the
       affidavit of the defendant. Manifestly the slander is
       merged in the prosecution, and if the prosecution is not
       actionable, neither is the slander.

Dearmond, 4 So. at 72.          Thus, because Collins has failed to prove

that   the    actions    of     Doyle   rose   to    the   level   of   malicious

prosecution,     his    state    law    defamation    claim   merges    with   his

malicious prosecution claim and fails as a matter of law.

                                          D

       Finally, we address the jury’s verdict relating to Collins’s

abuse of process claim against Doyle, which is based on state law.

In Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.Ct.App. 3d

Cir. 1980), the Louisiana court recognized a cause of action for

the common law tort of abuse of process.              The court held:

       There seems to be no reason not to recognize a
       plaintiff’s right to recover for damages caused by a
       defendant’s abuse of process when the facts so warrant.
       Unlike malicious prosecution, however, where several
       elements [must be proven] . . . there are only two
       essential elements of abuse of process. . . . The
       essential elements of abuse of process, as the tort has
       developed, have been stated to be: First, an ulterior
       purpose, and second, a wilful act in the use of the
       process not proper in the regular conduct of the
       proceeding.

Id.    at 695.




                                         28
         The first element of an abuse of process claim, that of

ulterior purpose, “is similar to the concept of ‘malice,’ but is a

much more demanding test which would not be met by a showing of

lack of knowledge or other technical types of malice, but which is

only met when the officer is acting for a specific purpose not

authorized by law.”      Taylor v. State of Louisiana, 617 So.2d 1198,

1205 (La.Ct.App. 3d Cir. 1993).          The second element, that of the

improper use of process, requires “a failure to comply with the

proper procedures or rules set out by law for conducting official

actions.”     Id.   at 1205-06.   The touchstone of an abuse of process

claim is whether the actions of the defendant “involves the misuse

of   a    process   already   legally    issued   whereby   [the   defendant]

attempts to obtain some result not proper under the law.”              Id.

         Assuming Collins’s newly alleged ulterior purpose is true--

that Doyle wanted him removed from the position of Director of

Recreations for the City of Harahan so he could give the job to a

friend of his wife--the record still lacks any evidence to support

a claim that the process was used in an improper manner.               As we

continue to note, the record indicates that probable cause existed

at the time Collins was charged with public contract fraud and

theft. Additionally, the record indicates that following Collins’s

arrest, the matter was brought to trial in a timely manner.              The

only purpose of the trial that is supported by the record was to

obtain a criminal conviction.            There is no evidence that Doyle




                                        29
misused the   criminal       process   once   it   was   instituted.       Thus,

Collins’s abuse of process claim fails as a matter of law.

                                       III

     We sum up:       Collins has failed as a matter of law in his

section 1983 malicious prosecution claim to demonstrate that Chief

Doyle was the chief policymaker for purposes of initiation and

prosecuting him for the public contract fraud and theft.             Thus, the

City of Harahan has no Monell liability for his actions.                 Further,

Collins has failed to carry his burden to demonstrate that Chief

Doyle lacked probable cause to refer the case to, and to assist,

the district attorney’s office in its prosecution.                  Thus, both

Collins’s   federal    and    state    law   malicious    prosecution     claims

against Doyle fail.     We hold that Collins has failed to establish

either a state or federal cause of action against Doyle based on

defamation.    Finally, we hold that the abuse of process claim

cannot be sustained.

     Thus, the judgment of the district court is REVERSED and the

damage award is VACATED, and the case is REMANDED for entry of

judgment dismissing      the    complaint     in   all   respects   as    to   all

defendants.

                                         REVERSED, VACATED, and REMANDED.




                                       30
