     Case: 17-60262      Document: 00514343121         Page: 1    Date Filed: 02/09/2018




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

                                      No. 17-60262
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          February 9, 2018

CATHRYN STOUT; RAYMOND MONTGOMERY, JR.,                                    Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

STAFF SERGEANT BRAD VINCENT, Director of Criminal Interdiction/K-9
Operations in his official and individual capacities,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-780


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       We decide whether the district court erred when granting summary
judgment in favor of a police officer on the racial profiling claims of a black
couple. The district court found that the couple failed to raise any genuine issue




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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of material fact showing that the officer violated their equal protection rights
under the Fourteenth Amendment. We affirm.
                           Facts and Proceedings
      Cathryn Scott Stout and Raymond Montgomery, Jr., who are black, were
travelling together from Memphis, Tennessee in a Lexus sport utility vehicle
(“SUV”) on Interstate 55 through central Mississippi. Montgomery noticed
Mississippi Highway Safety Patrol (“MHSP”) cars parked on the median. Soon
after they passed the cars, Trooper Patrick Wall drove up along the side of their
SUV in the left lane and looked at them. He then dropped behind their vehicle
and turned on his lights and siren. Montgomery, who was driving, pulled over,
but he did not feel nervous because he was not speeding and he believed he
had done nothing wrong.
      Trooper Wall asked Montgomery to step out of the car to show him that
the SUV’s license plate was partially obscured by a tag holder. The tag holder
bore the logo and colors of the Alpha Kappa Alpha Sorority, Inc. (“AKA”), a
black sorority to which Stout belonged. Trooper Wall explained to Montgomery
that the MHSP was attempting to “crack down” on drivers with tag holders
that obscured their plates. Trooper Wall said he would not issue a ticket for
the obscured plate, but he asked for Montgomery’s license and permission to
search the vehicle. Montgomery refused consent for the search.
      Trooper Wall called Staff Sergeant Vincent for backup, informing him
that Stout and Montgomery were “argumentative and difficult to deal with.”
When Officer Vincent arrived, Trooper Wall told him that Montgomery
exhibited unusual signs of nervousness and the SUV’s occupants had offered
conflicting stories about where they were traveling, the purpose of their trip,
and how long they intended to stay in Mississippi. Officer Vincent questioned
the passengers himself. Stout informed Officer Vincent that she was in the
state to perform research for her doctoral degree at Saint Louis University. But
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Officer Vincent had trouble remembering this fact once litigation had
commenced. He remembered only that one of the passengers had explained
that they were traveling to a concert. 1
       Officer Vincent informed Stout and Montgomery that troopers can run
the license of all individuals in a car to check their criminal histories and
ensure that they are not wanted for arrest. He further explained that the
Mississippi Department of Public Safety uses minor infractions as a pretext to
stop for criminal investigations. He said, “The more people we contact, the
more people we check out, the more likely we are to catch somebody up to no
good.”
       Trooper Wall ran a check on Montgomery’s Tennessee driver’s license.
The computer showed that he had prior arrests for both possession of narcotics
and intent to distribute narcotics. Officer Vincent’s training and many years of
experience in drug interdiction made him aware that Interstate 55 is used
often to transport drugs, particularly between Jackson, Mississippi and
Memphis, Tennessee. Officer Vincent requested permission to search the
vehicle, but was denied.
         Officer Vincent called for a K-9 officer, and Deputy Joseph Mangino soon
arrived with his dog. Officer Vincent instructed Montgomery and Stout to turn
off their car, get out of the vehicle, and stand away from each other and the car
while the dog sniffed around the SUV. 2 When the dog picked up a “suspicious”


       1  Officer Vincent remembered that the passengers gave him conflicting answers as to
the purpose and length of their stay in Mississippi. Montgomery and Stout deny that they
gave conflicting answers to these questions. Because of the procedural posture, we view all
factual disputes in a light most favorable to Appellants. See Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014).
        2 Officer Vincent told Montgomery and Stout that the dog would sit and freeze if it

detected drugs. They never saw the dog sit and freeze. Stout began recording the beginning
of the inspection on her phone’s camera. Vincent ordered her to put the camera away, and
she complied. The limited footage she obtained does not show the dog barking or making any
other signals to the troopers.
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scent from inside the vehicle, the officers searched the SUV. 3 The inspection
was thorough, and more than an hour passed from the initiation of the stop
until the officers finally allowed Appellants to leave without issuing a citation.
       Stout and Montgomery sued Officer Vincent, 4 seeking injunctive relief
and damages for violation of their Fourteenth Amendment rights under 42
U.S.C. § 1983. 5 Specifically, they alleged that impermissible considerations of
race motivated their extended detention by Officer Vincent. Officer Vincent
moved for summary judgment on the basis of qualified immunity, and the
district court granted his motion, concluding Appellants “have not presented
any evidence” in support of their claim that Officer Vincent’s conduct “was at
least partially based on their race.” Stout and Montgomery appealed.
                                 Standard of Review
       The court reviews a district court’s grant of summary judgment based on
qualified immunity de novo. Freeman v. Gore, 483 F.3d 404, 410–11 (5th Cir.
2007).
                                        Discussion
       On appeal, Stout and Montgomery raise only one issue: whether the
district court erred when concluding there was no genuine issue of material
fact that Officer Vincent’s actions were impermissibly motivated by race.




       3 The parties’ accounts of the search differ. Stout and Montgomery insist that no drugs
were found in the vehicle. Officer Vincent claims he found marijuana residue on the
floorboard of the vehicle and a piece large enough to be easily identified as marijuana.
Because the quantity of the marijuana was small, the officers did not issue a citation. We
reiterate that we view all factual disputes in a light most favorable to Appellants. See Tolan,
134 S. Ct. at 1866.
       4 Trooper Wall was not properly served and is not a party to this appeal.
       5 On appeal, Stout and Montgomery have abandoned their claims under the First and

Fourth Amendments.
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                                  No. 17-60262
                               I. Legal Standard
A. Summary Judgment
      Under Federal Rule of Civil Procedure 56, a “court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). The Supreme Court has explained that “a party seeking
summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But the
moving party has no need to negate its opponents’ claims. See id.
      If the moving party meets its burden, “the nonmovant must go beyond
the pleadings and designate specific facts showing that there is a genuine issue
for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing
Celotex, 477 U.S. at 325). The nonmovant’s “burden is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Id. (internal
citations and quotation marks omitted).
      A court must view all evidence “in the light most favorable to the
opposing party.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). In Tolan v. Cotton, the Supreme
Court stressed “the importance of drawing inferences in favor of the
nonmovant” in qualified immunity cases. Id. If a district court credits evidence
of the party seeking summary judgment but fails to properly acknowledge key
evidence offered by the nonmoving party, it misapprehends the summary
judgment standard. See id. at 1867–68.




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B. Qualified Immunity
       The Supreme Court has articulated a two-part question for any qualified
immunity determination: First, “[t]aken in the light most favorable to the
party asserting the injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).
Second, we ask “[w]hether the allegedly violated constitutional rights were
clearly established at the time of the incident; and, if so, whether the conduct
of the defendants was objectively unreasonable in light of that then clearly
established law.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005)
(internal quotation marks omitted). An official’s qualified immunity defense
prevails “[i]f no constitutional right would have been violated were the
allegations established.” Saucier, 533 U.S. at 201.
       “The Plaintiff bears the burden of proving that a government official is
not entitled to qualified immunity.” Michalik v. Hermann, 422 F.3d 252, 258
(5th Cir. 2005). This burden is not easy to meet because qualified immunity
“provides ample protection to all but the plainly incompetent or those who
knowingly violated the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
C. Fourteenth Amendment Racial Profiling
       “[T]he Constitution prohibits selective enforcement of the law based on
considerations such as race.” Whren v. United States, 517 U.S. 806, 813 (1996).
“[T]he constitutional basis for objecting to intentionally discriminatory
application of laws is the Equal Protection Clause.” Id. 6




       6When granting summary judgment for Officer Vincent, the district court relied in
part on an unpublished opinion from this court holding that a plaintiff’s Fourteenth
Amendment racial profiling claim fails unless the plaintiff’s evidence establishes “that race
was the agents’ sole motivating factor or that they knowingly were engaging in any illegal
conduct.” United States v. Vandyck-Aleman, 201 F. App’x 215, 218 (5th Cir. 2006).
Montgomery and Stout contend that this court has not adopted the “sole motivating factor”
standard in a published opinion. In light of our conclusion, discussed below, that Stout and
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                                  No. 17-60262
      Claims of racially selective law enforcement “draw on ordinary equal
protection standards.” See United States v. Armstrong, 517 U.S. 456, 465 (1996)
(internal quotation marks omitted); Marshall v. Columbia Lea Reg’l Hosp., 345
F.3d 1157, 1168 (10th Cir. 2003). “To state a claim of racial discrimination
under the Equal Protection Clause and section 1983, the plaintiff must allege
and prove that [she] received treatment different from that received by
similarly situated individuals and that the unequal treatment stemmed from
a discriminatory intent.” Bowlby v. City of Aberdeen, 681 F.3d 215, 227 (5th
Cir. 2012) (quoting Priester v. Lowndes Cty., 354 F.3d 414, 424 (5th Cir. 2004)
(internal quotation marks omitted)).
      In another context, we have said that a plaintiff’s “subjective belief of
discrimination, however genuine, [cannot] be the basis of judicial relief.”
Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983). Thus,
a plaintiff’s “subjective belief that he was discriminated against, standing
alone, is not adequate evidence to survive a motion for summary judgment.”
Raina v. Veneman, 152 F. App’x 348, 350 (5th Cir. 2005).
      Finally, “discriminatory intent of one official may [not] be imputed to
another for purposes of imposing individual liability under the civil rights
laws.” Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997).
           II. Lack of Evidence of Fourteenth Amendment Violation
      The district court concluded that Montgomery and Stout “have not
presented any evidence to support [their] claim” that Officer Vincent’s decision
to detain them was “at least partially based on their race.” The district court
further concluded that Montgomery and Stout “have likewise not shown that
their race played any role whatsoever in Vincent’s formulation of a reasonable



Montgomery have failed to produce any material evidence showing that race motivated
Officer Vincent’s conduct, we need not address the issue.
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                                 No. 17-60262
suspicion or wrongdoing, or in the actions that were taken by him to dispel that
suspicion.”
      On appeal, Montgomery and Stout detail the evidence they claim
demonstrates Officer Vincent’s discriminatory intent and unequal treatment:
   • They were traveling from Memphis, Tennessee to Jackson, Mississippi,
      which are both predominantly black cities.
   • They are both black.
   • They were driving a Lexus SUV.
   • Stout believed “[they] were being held because [they] are African
      American and for no other reason.”
   • Montgomery also believed “it appeared that the only reason [Officer
      Vincent] was keeping [them] was that [they] were black and driving a
      Lexus.”
   • Officer Vincent later remembered that Stout and Montgomery had
      indicated that the purpose of their trip to Mississippi was a concert when
      in fact they had told him they were in Mississippi for Stout’s graduate
      student research. According to Stout and Montgomery, this lapse is
      evidence that Officer Vincent had discriminatory intent because “he did
      not see a highly educated Black woman and her partner; he saw two
      Black people in a nice car going to a concert.”
   • No trooper issued them a ticket or citation, even though the officers claim
      they found marijuana in the SUV.
   • They both stated there was no marijuana in the car that day.
   • On the day before Officer Vincent detained Appellants, the City of
      Mound Bayou approved a resolution against the racial profiling of people
      of color by the MHSP. The mayor of Winstonville also condemned racial
      profiling of black people by the MHSP. Officer Vincent has been with the
      MHSP since 1997.
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      In light of this evidence, Montgomery and Stout argue that the district
court misapplied the summary judgment standard when it concluded that they
failed to raise a genuine issue of material fact. They stress that, after the
Supreme Court’s decision in Tolan, this evidence must be viewed as a whole,
and not in individual pieces. See Tolan, 134 S. Ct. at 1867–68. And the evidence
must be viewed in a light most favorable to them. Id. at 1866.
      The Supreme Court’s decision in Tolan, however, does not relieve a
nonmoving party of its burden to “go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial” after a moving
party meets its “initial responsibility.” Little, 37 F.3d at 1075 (citing Celotex,
477 U.S. at 325). Nor does it allow nonmovants to satisfy their burden with
metaphysical doubt, conclusory allegations, unsubstantiated assertions, or a
scintilla of evidence. See id.
      We have no reason to doubt the genuineness of Montgomery and Stout’s
subjective belief that Officer Vincent detained them only because they are
black. But we cannot accept such evidence as a basis for providing judicial
relief. See Elliott, 714 F.2d at 567. Because we are not permitted to impute any
alleged discriminatory intent of Trooper Wall to Officer Vincent for the purpose
of imposing individual liability under § 1983, we cannot consider any evidence
of racial profiling that occurred before Officer Vincent arrived on the scene. See
Coleman, 113 F.3d at 534. Moreover, we cannot attribute the general evidence
of racial profiling by the MHSP condemned by the mayor of Winstonville and
the City of Mound Bayou to Officer Vincent. See id.
      With this evidence removed, all that remains of Appellants’ case is that
they, a black couple, were detained when driving a nice car on a Mississippi
road by an officer who did not write them a ticket and who could not remember
their purpose for visiting the state. Even when viewed as a whole, this evidence


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fails to show that there is a genuine issue for trial regarding whether Officer
Vincent treated them unequally and acted with discriminatory intent.
      Although Appellants dispute Trooper Wall’s report that they were acting
nervous and that they gave conflicting accounts as to the purpose of their trip
in Mississippi, this does not create a fact issue because Officer Vincent was
allowed to rely on the information provided to him by a fellow officer. See
United States v. Massi, 761 F.3d 512, 521 (5th Cir. 2014). In light of the report
he received from Trooper Wall, the fact that Montgomery had previously been
arrested for distributing narcotics, and the fact that Interstate 55 is often used
to transport drugs, Officer Vincent had nondiscriminatory reasons to continue
detaining Appellants after the initial stop and request assistance from the K-
9 officer.
      Because Appellants failed to provide any evidence that Officer Vincent
acted with discriminatory intent or treated them unequally, they cannot show
there are any genuine issues of fact warranting a trial on their Fourteenth
Amendment claim of racial profiling. Thus, Officer Vincent’s qualified
immunity claim prevails because “no constitutional right would have been
violated were the allegations established.” Saucier, 533 U.S. at 201.
Accordingly, we conclude the district court did not err when it granted
summary judgment in favor of Officer Vincent. 7
                                      Conclusion
       We AFFIRM the district court’s order granting summary judgment in
favor of Officer Vincent, who enjoys qualified immunity from Stout and
Montgomery’s Fourteenth Amendment racial profiling claim.



      7 In light of our conclusion that the district court correctly applied the summary
judgment standard, we do not address Officer Vincent’s alternative argument that
Appellants failed to properly allege in their First Amended Complaint that he detained them
and searched their vehicle because of their race.
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