     Case: 15-30009      Document: 00513164789         Page: 1    Date Filed: 08/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30009                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          August 21, 2015
JOSEPH BARBER, JR.; BRENDA BARBER,                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellees

v.

FRANCIS MOGAVERO, individually,

              Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-2232


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM*:
       Plaintiffs Joseph Barber, Jr. (“Barber”) and his wife Brenda Barber filed
suit pursuant to 42 U.S.C. § 1983 and Louisiana state law against Officer
Francis Mogavero of the Shreveport Police Department in his individual
capacity, alleging that Mogavero falsely arrested Barber and subjected him to
excessive force. The case arises from a verbal dispute between Barber and a
concession stand worker at a college football game. Mogavero responded to the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 15-30009
scene, physically struck Barber at least twice, causing broken facial bones, and
arrested Barber for public drunkenness and simple assault.
       In the district court, Mogavero filed a motion for summary judgment,
asserting that he was entitled to qualified immunity on the individual capacity
claims asserted against him. The district court denied the motion on the
ground that there were genuine disputes of material fact surrounding Barber’s
arrest and that Mogavero had not demonstrated as a matter of law that he was
entitled to qualified immunity on the Plaintiffs’ § 1983 claims. Mogavero
timely filed this interlocutory appeal.
       The denial of a motion for summary judgment based on qualified
immunity, to the extent that it turns on questions of law, is a collateral order
capable of immediate review. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007). Where, as here, the district court denies summary judgment on the
ground that genuine disputes of material fact exist, we lack jurisdiction to
review whether a genuine fact issue exists. Id. We may only review the
materiality of the dispute—that is, “the legal sufficiency of the facts that the
district court found to be supported by the summary judgment record.” Id. “In
so doing, [we] assume[] that the plaintiff’s factual assertions are true and
determine[] whether those facts are sufficient to defeat the defendant’s motion
for summary judgment.” Id. 1 Mogavero is entitled to qualified immunity


       1  Mogavero states that, in addition to having jurisdiction to review the district court’s
denial of qualified immunity on the Plaintiffs’ § 1983 claims, we have jurisdiction to review
whether the Plaintiffs’ Louisiana state-law claims should have been dismissed. He argues in
passing that he is entitled to qualified immunity on the state-law claims because those claims
rely on the same standards of law as the § 1983 claims. We do not address whether the
district court should have dismissed the Plaintiffs’ state-law claims. Mogavero failed to
address these claims in his motion for summary judgment before the district court
(consequently, the district court did not address this issue). See Sw. Bell Tel., L.P. v. City of
Hous., 529 F.3d 257, 263 (5th Cir. 2008) (“This Court will not consider an issue that a party
fails to raise in the district court absent extraordinary circumstances.” (citation and internal
quotation marks omitted)). Moreover, Mogavero’s scarce briefing on the state-law claims in
the district court and on appeal fails to demonstrate that we have jurisdiction to consider
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                                       No. 15-30009
unless he violated Barber’s constitutional rights and his actions were
objectively unreasonable in light of clearly established law. See Harris v.
Serpas, 745 F.3d 767, 772 (5th Cir.), cert. denied, 135 S. Ct. 137 (2014).
Mogavero does not dispute that under clearly established constitutional law
Barber had the right to be free from arrest without a warrant or probable cause
and the right to be free from excessive use of force.
       There are sufficient facts to support that Mogavero lacked probable
cause to arrest Barber for public drunkenness and simple assault and that he
acted objectively unreasonably in concluding that he had probable cause. See
Crostley v. Lamar Cnty., 717 F.3d 410, 422–23 (5th Cir. 2013) (explaining that,
in the context of a false arrest claim, an officer is entitled to qualified immunity
unless there was not probable cause for the arrest and a reasonable officer
would not conclude there was probable cause for the arrest).                 As to probable
cause to arrest Barber for public drunkenness, the following facts are material:
there was evidence that five hours or more passed between Barber’s last
consumption of alcohol and the incident; the concession employee that
requested assistance from Mogavero testified that Barber did not appear
visibly intoxicated; and, although Mogavero testified that he observed Barber
moving and responding as if intoxicated, he did not smell alcohol on his breath
or question or examine Barber further regarding alcohol consumption or
intoxication before arresting him. See SHREVEPORT, LA., CODE OF ORDINANCES
§ 50-152 (prohibiting public drunkenness). As to probable cause to arrest
Barber for simple assault, it is material that there was testimony by multiple
witnesses that Barber did not use physical force, attempt to use physical force,




them on interlocutory appeal. See, e.g., Burge v. Parish of St. Tammany, 187 F.3d 452, 482–
83 (5th Cir. 1999) (addressing appellate jurisdiction over state-law claims in an interlocutory
appeal of the denial of qualified immunity on § 1983 claims).
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                                  No. 15-30009
or act threatening toward anyone, including toward Mogavero. See LA. STAT.
ANN. §§ 14:36, 14:38 (defining assault and simple assault).
      There are likewise sufficient facts to support that Mogavero caused
(substantial) injury to Barber through use of excessive force that was clearly
unreasonable. See Harris, 745 F.3d at 772 (“To prevail on an excessive force
claim, a plaintiff must establish: (1) injury (2) which resulted directly and only
from a use of force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable.” (citation and internal quotation marks
omitted)). There is testimony by multiple witnesses that Mogavero struck
Barber in the chest and then punched him in the face one or more times
without any precipitating aggressive or threatening actions by Barber and
before Mogavero told Barber that he was under arrest. The level of force used
by Mogavero knocked Barber unconscious, broke bones in his face, and caused
nerve damage.
      Accordingly, assuming the truth of Plaintiffs’ evidence, as we must at
this stage, this evidence is sufficient to preclude summary judgment based on
Mogavero’s claim of qualified immunity.
      AFFIRMED.




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