     Case: 10-30012     Document: 00511202240          Page: 1    Date Filed: 08/12/2010




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

                                                  FILED
                                                                           August 12, 2010

                                     No. 10-30012                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JASMINE M. WINSTON,

                                                   Plaintiff–Appellant
v.

CITY OF SHREVEPORT; MIKE VANSANT; D. R. SAWYER, Corporal; W. J.
WILLIS, Officer,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:08-cv-00111


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jasmine M. Winston appeals the district court’s grant of summary
judgment in favor of Officer W. J. Willis and former Interim Chief of Police Mike
Vansant on her § 1983 claim for false arrest, supervisory liability, and related
state torts. The district court found that qualified immunity shielded Officer
Willis because he acted reasonably under the circumstances, and that Winston



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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had failed to demonstrate that Chief Vansant had either failed to train or
supervise his officers, or had acted with deliberate indifference in allegedly
failing to train or supervise them.
      On appeal, Winston argues that (1) no reasonable officer could have
believed there existed probable cause to arrest her for any of her charged crimes,
and thus Officer Willis is not entitled to qualified immunity on her false arrest
claim; (2) she has sufficiently demonstrated that Chief Vansant failed to train
and supervise his subordinates, and this failure amounted to deliberate
indifference; and (3) because the district court erred when it granted summary
judgment as to her federal claims, it also erred in doing so with regard to her
pendent state claims for false imprisonment, excessive force, and vicarious
liability. Because we agree with the district court that (1) qualified immunity
shields Officer Willis, (2) Winston failed to demonstrate that Chief Vansant was
deliberately indifferent, and (3) these conclusions suffice to defeat Winston’s
state tort claims as a matter of law, we affirm the district court’s grant of
summary judgment.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In January 2007, Shreveport police officers, including Officer Willis and
Corporal D.R. Sawyer, responded to a request to assist with crowd control of a
riot type situation at a local downtown nightclub known as “Club Ice.”
Approximately 1,500 people were inside the club attending a concert, and an
additional 500 gathered outside.       Based on the large number of people,
dispatchers requested that all available officers from all four areas of Shreveport
respond. Between twenty and forty uniformed, undercover, and off-duty officers
assisted to keep several disturbances in the crowd from erupting into violence.
      A Shreveport fire investigator determined that Club Ice’s occupancy had
exceeded its capacity, and the officers were instructed to prevent anyone from
entering the club. In response, the officers issued commands to the crowd to

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disperse, both verbally and over patrol car PA systems.           The commands
continued for approximately thirty minutes, and at times, the officers physically
pushed people away from the entrance of the building. After some time had
passed, part of the crowd had dispersed, but approximately 150–200 people
remained outside the club.
      After Officer Willis had been present at the club for about a half-hour,
Winston, who had previously been drinking at a night club next door, attempted
to gain entrance to Club Ice through a side door. Officer Willis watched as
Winston tried to maneuver around another, unidentified police officer. Officer
Willis then stepped between Winston and the unidentified officer, using his
baton to push Winston away from the club.
      According to Officer Willis and Corporal Sawyer, Winston struck Officer
Willis twice: once in the jaw, and again on top of his head. Winston alleges that
she simply flailed her arms as she lost her balance and did not mean to strike
Officer Willis, but concedes that the officers could have construed this as an
attack. Corporal Sawyer responded by grabbing Winston around the shoulder
area and forcing her to the ground, where she struck her face on the sidewalk,
injuring her lips and teeth. The officers then arrested Winston and removed her
from the scene, and she was subsequently charged with refusal to disperse,
resisting arrest, and battery on a police officer.
      Winston filed suit, alleging false arrest and excessive use of force claims
against Officer Willis and Corporal Sawyer; Monell claims for unlawful policies
and practices, which allegedly caused or contributed to her injuries, against the
City of Shreveport, the Shreveport Police Department, and Chief Vansant; and
pendent state law claims based on direct and vicarious liability. The defendants
collectively moved for summary judgment, asserting that Corporal Sawyer and
Officer Willis were shielded by qualified immunity and that Winston produced
no evidence to support a Monell claim.

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       Shortly thereafter, Corporal Sawyer and the City of Shreveport made an
offer of judgment pursuant to Federal Rule of Civil Procedure 68,1 which
Winston accepted. Based on the offer, the district court entered an order of
partial judgement against the City of Shreveport and Corporal Sawyer. This
disposition provided that Winston’s only remaining claims were against Officer
Willis for false arrest and excessive use of force, and against the Shreveport
Police Department and Chief Vansant for supervisory liability.
       The district court then granted summary judgment in favor of Officer
Willis, the Shreveport Police Department, and Chief Vansant. As to Officer
Willis, the district court found that (1) he had probable cause to arrest Winston
for failure to disperse, and was thus entitled to qualified immunity on Winston’s
false arrest claim;2 and (2) Winston failed to raise a genuine issue of material
fact as to whether Officer Willis used excessive force, and he was thus entitled
to qualified immunity on that claim as well.3               As to the Shreveport Police
Department and Chief Vansant, the district court found the record entirely
devoid of evidence demonstrating failure to train, supervise, or discipline Officer
Willis, and that any alleged failure did not amount to deliberate indifference.
Finally, the district court found that because Officer Willis acted reasonably



       1
           Rule 68 provides that:

       At least 14 days before the date set for trial, a party defending against a claim
       may serve on an opposing party an offer to allow judgment on specified terms,
       with the costs then accrued. If, within 14 days after being served, the opposing
       party serves written notice accepting the offer, either party may then file the
       offer and notice of acceptance, plus proof of service. The clerk must then enter
       judgment.
       2
         Finding that Officer Willis had probable cause to arrest Winston for failure to
disperse, the district court did not squarely address whether he had probable cause to arrest
Winston for the other violations, although it opined, in a footnote, that he probably had
probable cause to arrest her for battery on a police officer as well.
       3
           On appeal, Winston no longer argues that Officer Willis used excessive force.

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under the circumstances, Winston’s state law claims for direct and vicarious
liability failed. Winston timely appealed.4
                          II. STANDARD OF REVIEW
      “We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Chaney v. Dreyfus Serv.
Corp., 595 F.3d 219, 228–29 (5th Cir. 2010) (citing Golden Bridge Tech., Inc. v.
Motorola, Inc., 547 F.3d 266, 270 (5th Cir. 2008)).            Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
“Factual controversies are construed in the light most favorable to the
nonmovant, but only if both parties have introduced evidence showing that an
actual controversy exists.” Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d
622, 625 (5th Cir. 1998) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)).
                                   III. ANALYSIS
      On appeal Winston advances several arguments. First, she contends that
no reasonable law enforcement officer would have, or could have, believed that
there was probable cause to arrest her, and therefore the district court erred by
finding Officer Willis entitled to qualified immunity on her false arrest claim.
Next, she argues that she offered sufficient evidence to survive summary
judgment on her supervisory liability claim against Chief Vansant. Finally, she
alleges that the district court erred when it dismissed her state law claims. We
address each argument in turn.




      4
        This Court granted the Shreveport Police Department’s unopposed motion for
dismissal. The only remaining parties to this appeal are Officer Willis and Chief Vansant.

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A.      False Arrest Claim against Officer Willis
        Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). In order to determine whether qualified immunity
shields an official, the Supreme Court, in Saucier v. Katz, mandated a two-step
analysis, in which a court must determine whether “the facts alleged show the
officer’s conduct violated a constitutional right.” 533 U.S. 194, 201 (2001). A
court must also ask “whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Pearson, 129 S. Ct. at 816 (citing
Saucier, 533 U.S. at 201). The Supreme Court has recently held that “[t]he
judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id. at 818.
        The second step involves a determination of whether “the conduct was
objectively reasonable in light of clearly established law at the time that the
challenged conduct occurred,” and that “[t]he touchstone of this inquiry is
whether a reasonable person would have believed that his conduct conformed to
the constitutional standard in light of the information available to him and the
clearly established law.” Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001)
(citations omitted)    “This means that ‘[e]ven law enforcement officials who
reasonably but mistakenly [commit a constitutional violation] are entitled to
immunity.’” Id. (quoting Goodson v. Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000) (alteration in original)).
        Because “[t]he constitutional claim of false arrest requires a showing of no
probable cause,” Club Retro L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009)

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(citation omitted), Officer Willis is entitled to qualified immunity “if officers of
reasonable competence could disagree” that Officer Willis had probable cause to
arrest Winston for any of the crimes for which she was charged. See Babb v.
Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (citation and internal quotation marks
omitted). The Supreme Court has defined probable cause as the “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted).
Furthermore, this Court has stated that probable cause “does not demand any
showing that [the belief that an offense was committed] be correct or more likely
true than false,” because “the probable cause analysis only requires that we find
a basis for an officer to believe to a ‘fair probability’ that a violation occurred.”
Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (citations omitted) (alteration
in original).
      The district court correctly found that if Officer Willis had probable cause
to arrest Winston for any charge, it did not need to examine whether probable
cause existed for the additional charges. See Wells v. Bonner, 45 F.3d 90, 95 (5th
Cir. 1995) (“The claim for false arrest does not cast its primary focus on the
validity of each individual charge; instead, we focus on the validity of the arrest.
If there was probable cause for any of the charges . . . then the arrest was
supported by probable cause, and the claim for false arrest fails.”). Of the three
charges lodged against Winston—refusal to disperse, resisting arrest, and
battery on a police officer—the district court only decided that Officer Willis had
probable cause to arrest Winston for failure to disperse. With regard to that
charge, Louisiana Revised Statute § 14:329.3 provides that:
      Any law enforcement or peace officer or public official responsible
      for keeping the peace may issue a command to disperse under the


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      authority of R.S. 14:329.1-14:329.8 if he reasonably believes that
      riot is occurring or about to occur. The command to disperse shall
      be given in a manner reasonably calculated to be communicated to
      the assemblage.
      Whoever willfully fails to comply with a lawful command to disperse
      shall be punished in accordance with the provisions of R.S. 14:329.7.
Louisiana Revised Statute § 14:329.1, in turn, defines a “riot” as:
      [A] public disturbance involving an assemblage of three or more
      persons acting together or in concert which by tumultuous and
      violent conduct, or the imminent threat of tumultuous and violent
      conduct, results in injury or damage to persons or property or
      creates a clear and present danger of injury or damage to persons or
      property.
      Winston contends that no reasonable officer could have believed that a riot
was occurring or about to occur at the time of the encounter, and that no
reasonable officer could believe that Winston had been given a lawful command
to disperse.   Both the record and her own testimony, however, belie her
argument. Officer Willis responded to “riot type” conditions where up to forty
officers were trying to prevent a volatile situation involving approximately 500
people from escalating. When he arrived, officers were trying to dispel several
disturbances in the crowd and attempting to prevent others from commencing.
Even after approximately 300 individuals from the crowd had dispersed,
Winston herself testified that at the time of her encounter with Officer Willis,
the scene “kind of exploded,” and officers were both screaming and in the process
of physcially detaining those around her. Based on these circumstances, the
officers were well within their authority to conclude that a riot, as defined by
section 14:329.1, was imminent, and could thus lawfully issue commands to
disperse.
      Additionally, Winston stated in her deposition that she was aware that
Officer Willis directed her to move back, and that she did not do so. Under these
circumstances, Officer Willis reasonably believed that he had probable cause to

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arrest Winston for failure to disperse.           As such, he is entitled to qualified
immunity on Winston’s false arrest claim.5
B.      Supervisory Liability Claim against Chief Vansant
        Supervisory officials may not be held liable under § 1983 for the actions
of subordinates on theories of vicarious liability or respondeat superior. Estate
of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th
Cir. 2005). Instead, Winston must demonstrate that (1) Chief Vansant failed to
supervise or train his subordinate officials; (2) a causal link exists between the
failure to train or supervise and the violation of Winston’s rights; and (3) the
failure to train or supervise amounted to deliberate indifference. Id.
        We have held, with respect to the third prong, that “‘deliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action,” and that “for
an official to act with deliberate indifference, the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. (citations and internal
quotation marks omitted). Additionally, “[d]eliberate indifference requires a
showing of more than negligence or even gross negligence,” and “[t]o satisfy the
deliberate indifference prong, a plaintiff usually must demonstrate a pattern of
violations and that the inadequacy of the training is obvious and obviously likely
to result in a constitutional violation.” Id. (citations and quotations marks
omitted).
        Here, Winston offered the testimony of an expert who opined that the
technique employed by Corporal Sawyer to throw Winston to the ground after



        5
         Because we hold that Officer Willis reasonably believed that he had probable cause
to arrest Winston for failure to disperse and is thus entitled to qualified immunity, we do not
address whether he reasonably believed that he had probable cause to arrest Winston for
resisting arrest or battery on a police officer.

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she struck Officer Willis was unwarranted, and that if the Shreveport Police
Department taught and Chief Vansant approved the technique, the system was
flawed. Winston also offered the deposition testimony of Corporal Sawyer who
asserted that he believed that he used a proper technique because it was in
accordance with the technique taught to him at the Shreveport Police Academy.
Based on this evidence, Winston contends that Chief Vansant should have
properly supervised the officers, withdrawn the policy, and offered proper
retraining.
        Winston, however, has failed to offer any additional evidence that would
tie Corporal Sawyer’s activity with any alleged failure by Chief Vansant
personally to train, supervise, or discipline his officers. At no point does she
assert that Chief Vansant trained Corporal Sawyer at the Academy, or
implemented, endorsed, advocated, or was even aware of his officers’ use of the
challenged technique. Likewise, she does not advance any evidence that Chief
Vansant was “aware of facts from which the inference could be drawn that a
substantial risk of serious harm” existed should this technique continue to be
used, nor has she demonstrated that Chief Vansant, in fact, “dr[e]w the
inference.” Id. Additionally, Winston fails to demonstrate any “pattern of
violations”; rather she offers her own sole incident with Corporal Sawyer. See
id. Winston’s failure to offer any proof of a pattern of violations demonstrates
that any alleged wrongdoing on the part of Chief Vansant could be characterized
as merely negligence, rather than the requisite deliberate indifference. As such,
we hold that the district court correctly found that Winston’s § 1983 supervisory
liability claim against Chief Vansant fails as a matter of law.
C.      State Law Claims
        Under Louisiana law, we apply the same “reasonableness” standard to
Winston’s state law claims of false arrest and excessive force that we apply when
analyzing whether qualified immunity shields Officer Willis against Winston’s

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federal constitutional claims. See Reneau v. City of New Orleans, No. Civ.A. 03-
1410, 2004 WL 1497711, at *3–*4 (E.D. La. July 2, 2004) (citing Kyle v City of
New Orleans, 353 So. 2d 969, 973 (La. 1977)). As discussed above, Officer Willis
acted reasonably throughout his encounter with Winston. We thus hold that
Winston’s state law claims for direct and vicarious liability fail as a matter of
law.6
                                  IV. CONCLUSION
        Because Officer Willis reasonably believed that he had probable cause to
arrest Winston for refusal to disperse, he is entitled to qualified immunity on
Winston’s false arrest claim.            Additionally, because Winston has not
demonstrated that Chief Vansant failed to adequately train Corporal Sawyer,
or that any alleged failure to train rose to the level of deliberate indifference, the
district court correctly granted summary judgment in favor of Chief Vansant on
Winston’s supervisory liability claim. Finally, because Louisiana law adopts the
same “reasonableness” standard used in determining whether qualified
immunity applies, the district court correctly granted summary judgment in
favor of Officer Willis and Chief Vansant on Winston’s state law claims for false
arrest, excessive force, and vicarious liability. We therefore affirm the district
court’s grant of summary judgment.
        AFFIRMED.




        6
         Contrary to Winston’s suggestion, the fact that the City of Shreveport and Corporal
Sawyer extended an offer of judgment under Rule 68 does not impart liability to Chief Vansant
or Officer Willis. Cf. Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007) (holding that, in
the qualified immunity context, each defendant’s actions must be evaluated individually).

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