   Case: 12-60923    Document: 00512307205   Page: 1   Date Filed: 07/15/2013




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

                                                                FILED
                                                               July 15, 2013
                              No. 12-60923
                            Summary Calendar                   Lyle W. Cayce
                                                                    Clerk




DERRICK DARNELL PAYNE,

                                        Plaintiff–Appellant,

versus

BENTON COUNTY; BENTON COUNTY SHERIFF’S DEPARTMENT;
KELLY MCMILLIAN; ALAN THOMPSON; MARSHALL COUNTY;
MARSHALL COUNTY SHERIFF’S DEPARTMENT;
ARNIE A. MCMULLEN,

                                        Defendants–Appellees.




                Appeal from the United States District Court
                  for the Northern District of Mississippi
                              No. 3:11-CV-136
     Case: 12-60923       Document: 00512307205           Page: 2    Date Filed: 07/15/2013

                                       No. 12-60923

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Derrick Payne appeals a summary judgment and the dismissal of his 42
U.S.C. § 1983 action. He argues that the defendants’ prosecution of him for
capital murder was malicious because they were allowed to elicit testimony
from his wife, Lakentra Payne, in violation of Mississippi’s spousal-privilege
law; Lakentra’s statements were coerced, because Alan Thompson threatened
to take away her baby if she did not cooperate; Lakentra could not find the
exact location of the victim’s body; Thompson did not search for a gun, even
though Lakentra told investigators where it was hidden; Payne was prosecuted
because he had previously been acquitted for bank robbery in Marshall County;
and he was acquitted of the murder charge. Payne maintains that, without
Lakentra’s testimony, there was no probable cause to prosecute him.
       We review the district court’s ruling de novo, employing the same
standard used by that court. McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir.
2012). Federal law does not recognize an independent constitutional claim of
malicious prosecution. Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812–13
(5th Cir. 2010); Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en
banc).     The claimant must instead allege “that officials violated specific
constitutional rights in connection with a malicious prosecution.” Cuadra, 626
F.3d at 812 (internal quotations marks and citation omitted); Deville v.
Marcantel, 567 F.3d 156, 169 (5th Cir. 2009).
       Payne’s contention that the spousal privilege barred Lakentra’s
testimony and that, without her testimony, there was no probable cause to



       *
         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. 12-60923

prosecute him is meritless. That privilege did not apply, because Lakentra
testified about events that occurred in the presence of the victim or as to
controversies between them. See Maiben v. State, 405 So. 2d, 97, 89–90 (Miss.
1981); Carpenter v. State, 102 So. 3d 290, 293–94 (Miss. App. 2012). Addition-
ally, there is no evidence that Thompson coerced Lakentra’s testimony, and her
testimony, which was corroborated in part by the discovery of the victim’s
remains, provided probable cause to prosecute. Cuadra, 626 F.3d at 813.
Finally, to the extent that Payne is raising a state-law claim concerning the
spousal privilege, it is not cognizable under § 1983. See Sw. Bell Tel., LP v.
City of Hous., 529 F.3d 257, 260 (5th Cir. 2008).
      AFFIRMED.




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