                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                     UNITED STATES COURT OF APPEALS              April 29, 2003
                          FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk


                                  02-30913
                              Summary Calendar




 MARK E. MARCHIAFAVA; NICOLE BEAN; LINDA GLAVIANO; CHRISTIE LYNN
     MARCHIAFAVA; TADDI BROWN; MELINA ARNOLD; TERRI WARNER,

                                                    Plaintiffs-Appellants,

                                    VERSUS

   MICHAEL R. BARNETT, Chief Criminal Deputy; ELMER LITCHFIELD,
Sheriff; CALLENDER, Deputy Sheriff; CHARLES E. P. SPURLOCK, DR.;
 THERESITA JIMENEZ, DR.; RALPH WILLIAMS, Lieutenant; TOMMY RICE,
                Lieutenant; DENISE M. GRAHAM, DR.,

                                                      Defendants-Appellees.



            Appeal from the United States District Court
                For the Middle District of Louisiana
                            (00-CV-111-D)

Before JONES, DUHÉ and CLEMENT, Circuit Judges.

PER CURIAM:1




      1
        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should not be published and is not precedent except under the limited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.
       Plaintiffs-appellants Mark Marchiafava and several coworkers

at   his    place     of    business       filed    this    suit      for    civil      rights

violations including unlawful search and seizure and detention,

civil conspiracy, and (Marchiafava only) unlawful confinement.

The district court summarily dismissed the complaint, finding no

evidence of the unreasonableness of Defendants’ actions under the

circumstances,        and      holding     that     Defendants        were    entitled      to

qualified immunity.            After de novo review, we affirm.

                                             I.

       The summary judgment evidence showed that Defendant Colonel

Michael     A.   Barnett       of    the   East    Baton    Rouge      Parish     Sheriff’s

Office      executed       a      sworn    statement       in    connection        with     an

application to have Marchiafava taken into protective custody.

Col. Barnett attested that he had received information from a

state representative that Marchiafava had telephoned legislative

and other state offices stating that he had acreage in Tunica

Hills which he was reserving as a cemetery for legislators, and

that   he    agreed        100%     with   Timothy      McVeigh;       in    another      call

Marchiafava said only “boom.”                Barnett also detailed a phone call

from   the    Baton    Rouge        Police   Chief      that     a   news    reporter      had

informed     him    that       Marchiafava        had   stated       that    he   was   being

harassed by police, and that he would use deadly force the next




                                              2
time he was unlawfully stopped by a police officer.                             Finally,

Barnett    attested        to    his   personal       knowledge     that   Marchiafava

habitually carried a handgun and had the means at hand to carry

out threats.

       Reporting       these     threats     to     the    parish   coroner,    Barnett

signed     a    protective-custody           application       stating,     “APPLICANT

STATES: PT [patient] HAS MADE A STATEMENT THAT HE HAS A LEGAL

RIGHT TO KILL ANY POLICE OFFICER WHO STOPS HIM.                       TWO WEEKS AGO,

HE TOLD SOMEONE HE WAS LOOKING FOR LAND SO HE COULD BURY 250

LEGISLATORS. PT CARRIES A GUN.”

       The Coroner issued an order for the sheriff’s office or

police department to take Mr. Marchiafava into protective custody

and    deliver       him   to    the   Coroner’s      office    for   an   evaluation,

pursuant to Louisiana involuntary commitment law.                      La. Rev. Stat.

Ann. § 28:53.2.

       The next day at Marchiafava’s place of business, eight to

ten deputies, two of whom are Defendants-Appellants Captain Ralph

Williams       and    Lieutenant       Tommy       Rice,   participated    in    taking

Marchiafava into custody.              According to the affidavits, Williams

and Rice made a protective sweep of the building, during which

they    encountered        one    or   two   of     the    coworker   plaintiffs    and

directed them to the front of the building.                         Williams and Rice




                                               3
then     departed      without     touching        or     questioning             any   of     the

Plaintiffs.      (The Plaintiffs who complain of having been touched

did not identify these two Defendants-Appellants).

       Upon    delivery     to   the      coroner’s        office        for       psychiatric

evaluation,      Marchiafava        was      examined       by        defendant         Charles

Spurlock,      M.D.,    Deputy   Coroner         for     East    Baton       Rouge      Parish.

Marchiafava was uncooperative and refused to talk to Dr. Spurlock

except    that    he    denied     making        the    statements          noted       in    Col.

Barnett’s      application.            Dr.   Spurlock        signed          a     Physician’s

Emergency      Certificate       (or     PEC),         finding       Marchiafava         to    be

“dangerous to others,” and authorizing his transport to Baton

Rouge Mental Health Center for psychiatric examination.                                 After a

brief    examination,       he   was      transported           to     Greenwell        Springs

Hospital for further evaluation and treatment.

       There    Defendant     Theresita          Jimenez,       M.D.,       had    a    duty   to

evaluate       Marchiafava.         She      reported        Marchiafava’s              hostile

behavior and refusal to cooperate in her evaluation.                                    She was

unable to definitively diagnose him but provisionally diagnosed

him with “schizoaffective disorder, manic.”                          During Marchiafava’s

stay,     several      different       doctors         attempted       to     complete         his

evaluation,      and     none    was      successful        due        to        Marchiafava’s




                                             4
continued refusal          to     cooperate.      Dr.   Jimenez     determined    that

further evaluation was needed.

       Meanwhile, Marchiafava asked for a probable cause hearing in

state district court seeking his release.                     At a hearing held

thirteen days after his admission date, the court found probable

cause    to   keep        Marchiafava     hospitalized       for    evaluation     and

treatment.    Further evaluation eventually resulted in an opinion

that Marchiafava did not suffer from a major mental illness and

was not a danger to himself or others.                  He was then released from

Greenwell Springs Hospital.

         Marchiafava        has    sued   Col.    Barnett,    Dr.     Spurlock,   Dr.

Jiminez, Capt. Williams, Lt. Rice and others (not at issue in

this appeal) claiming they unlawfully searched, detained, and

confined him, violating his constitutional rights.                          The other

Plaintiffs, coworkers at Marchiafava’s place of business, have

sued the deputy Defendants under § 1983 alleging civil rights

violations.        The      Defendants     all    filed     motions    for    summary

judgment, and the trial court has dismissed all claims.

                                          II.

       We review a summary judgment dismissal de novo, applying the

same    standard     of    review    as   the    district    court,    to    determine

whether the record discloses any genuine issue as to a material




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fact.     Waltman v. International Paper Co., 875 F.2d 468, 474 (5th

Cir. 1989).          If the record taken as whole could not lead a

rational trier of fact to find for the nonmoving party, summary

judgment      is    appropriate        and    there    is     no   issue    for     trial.

Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574,

586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

                                             III.

       All the defendants in this appeal were government officials

sued    for   actions     done    in    the       performance      of   their     official

duties.       Qualified immunity protects government officials from

individual         liability     for    performing          discretionary       functions

unless their conduct violates clearly established rights of which

a reasonable person would have known.                      Coleman v. Houston Indep.

School Dist., 113 F.3d 528, 532-33 (5th Cir. 1997).

       The right “to be free from deprivation of liberty due to an

alleged wrongful involuntary commitment” is a clearly established

right under the Due Process Clause.                        Vitek v. Jones, 445 U.S.

480, 491-92 (1980).            Whether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful

official      action     generally           turns    on     the    “objective       legal

reasonableness” of the action.                    Anderson v. Creighton, 483 U.S.

635, 644, 107 S. Ct. 3034, 3041, 97 L.Ed.2d 523 (1987).




                                              6
     Under the protective custody procedure, the coroner reviews

allegations leading to the affiant’s belief that the person is

mentally ill and then determines whether the person should be

taken into protective custody for an immediate examination.                             La.

Rev. Stat. Ann. § 28:532.               After examination of the person, the

coroner or other physician makes a medical determination whether

the person needs immediate treatment because he is dangerous to

himself or others or gravely disabled; if so, he issues a PEC for

admission       to   a   treatment      facility.          La.   Rev.     Stat.   Ann.   §

38:53(B).

     The evidence reveals no question of material fact precluding

a finding as a matter of law that Col. Barnett acted reasonably

in executing his affidavit in support of a coroner’s order for

protective      custody.        He   accurately         presented     the    information

given him.       Further,    Col.       Barnett     and    reasonably       believed    the

sheriff’s    office      should      execute      the     coroner’s     order.     He    is

entitled to qualified immunity.

     Captain         Williams     and    Lieutenant         Rice,     too,    reasonably

believed    a    security       sweep    of   the       building    was   justified      to

protect the deputies engaged in apprehending Marchiafava.                               The

summary judgment evidence demonstrates that they had information

that Marchiafava was likely to be armed and posed a threat to




                                              7
arresting officers.          The record discloses no question of fact

impugning the appropriateness of the conduct of those defendants

with respect to either Marchiafava or his co-workers.                                 They are

entitled to qualified immunity.

      Under the circumstances Dr. Spurlock’s decision to sign the

PEC was also reasonable.           By conducting a brief examination of

the plaintiff in compliance with Revised Statutes § 28:53 B(1),

Dr.   Spurlock      performed      the        duty       required          by    law.       The

uncontroverted      evidence     revealed              that,      from     Dr.    Spurlock’s

perspective,      Marchiafava      was    hostile,           uncooperative,           and   had

threatened       violence    toward      others.            He     acted    reasonably       in

deciding to remand Marchiafava to a mental health facility for

further evaluation by a psychiatrist.                            Thus, Dr. Spurlock is

entitled    to    qualified    immunity           from      civil    liability        for   his

conduct while in the course of his official duties.2

      Despite     the   repeated      efforts          by    Dr.    Jimenez      to     examine

Marchiafava during the 72-hour period allowed by law, Marchiafava

was   not   willing     to   submit      to       an    evaluation         and   refused     to

cooperate.       Dr. Jimenez complied with the law which allows an


      2
       Affirming the dismissal of Dr. Spurlock on grounds of qualified immunity,
we need not reach Dr. Spurlock’s alternative argument that the state judge’s
probable cause ruling precluded Marchiafava’s claims pursuant to Heck v.
Humphrey, 512 U.S. 477 144 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).




                                              8
extension of the initial period for an additional fifteen days,

via a Physicians Emergency Certificate (PEC).                                    La. Rev. Stat.

Ann. § 28:53A(2).            She had decided that further evaluation was

necessary      and    did    so     extend,        so    that     a    complete       psychiatric

evaluation         could    be    conducted.             After    Marchiafava’s          probable

cause hearing, Dr. Jimenez was removed from the case; another

doctor       was    assigned       by       the    court     to       complete        plaintiff’s

evaluation.           Because       Dr.       Jimenez       acted          in    an   objectively

reasonable manner, she is entitled to qualified immunity.

       The Plaintiff offered no more than conclusory statements to

support his allegations of a conspiracy to violate his rights,

insufficient         to    defeat       a   summary       judgment          motion.     Lynch    v.

Cannatella, 810 F.2d 1363, 1369-1370 (5th Cir. 1987).

                                                  IV.

       The    district       court      correctly         dismissed             Plaintiffs’   suit

because Plaintiffs failed to show that the conduct of Defendants

was not objectively reasonable.                         Further, Plaintiffs failed to

meet   the     burden       of    producing            evidence       of    conspiracy.         The

judgment dismissing Defendants is in all respects

       AFFIRMED.




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