Donald Hodge, Jr. v. East Baton Rouge Parish, et al

Filing

REVISED UNPUBLISHED OPINION FILED. [6620815-2] [10-30018]

Donald Hodge, Jr. v. East Baton Rouge Parish, et al

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Case: 10-30018

Document: 00511235066

Page: 1

Date Filed: 09/16/2010

REVISED SEPTEMBER 16, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
N o . 10-30018 S u m m a r y Calendar September 3, 2010 Lyle W. Cayce Clerk D O N A L D C. HODGE, JR., P la in t if f -A p p e lla n t v. E A S T BATON ROUGE PARISH SHERIFF'S OFFICE; THE BOARD OF SU PE R V ISO R S F O R LO U ISIAN A STATE U N IVERSITY AN D A G R I C U L T U R A L AND MECHANICAL COLLEGE; GREG PHARES, In his o ffic ia l capacity as the Sheriff for East Baton Rouge Parish; LEONARDO DEON M O O R E , Individually and official capacity as a Lieutenant with East Baton R o u g e Parish Sheriff's Office, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:08-CV-735

B e fo r e WIENER, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* L e o n a r d o Deon Moore, a lieutenant in the East Baton Rouge Parish S h e r iff's Office, arrested Donald C. Hodge, Jr. after Hodge did not comply with s e v e r a l verbal warnings from Lieutenant Moore and the Louisiana State
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511235066 Page: 2 No. 10-30018

Date Filed: 09/16/2010

U n iv e r s it y football game day marshal asking him to leave the student disability a c c e s s ib le section in Tiger Stadium, which he did not have a ticket for. Hodge r e c e iv e d a summons for remaining after being forbidden and resisting arrest, but w a s never prosecuted. Hodge filed suit asserting various Constitutional and L o u is ia n a law claims against the East Baton Rouge Parish Sheriff's Office; The B o a r d of Supervisors for Louisiana State University; Greg Phares, Sheriff for E a s t Baton Rouge Parish; and Lieutenant Moore. T h e district court dismissed all claims against the defendants or granted t h e m summary judgment. Although Hodge names both Sheriff Phares and L ie u t e n a n t Moore as defendants on appeal, he solely briefs his 42 U.S.C. § 1983 c la im against Lieutenant Moore for false arrest in violation of his Fourth A m e n d m e n t rights. Despite our policy of liberally construing briefs of pro se lit ig a n t s and applying less stringent standards to parties proceeding pro se than t o parties represented by counsel, pro se parties must still brief the issues and r e a s o n a b ly comply with the standards of Federal Rule of Appellate Procedure 2 8 .1 Only Hodge's false arrest claim comes close, even though he is a lawyer.2 W e consider all other claims waived, each of which approached the frivolous to b e g in with. We review the district court's grant of summary judgment de novo a n d apply the same legal standards as the district court.3 " T h e doctrine of qualified immunity protects government officials from lia b ilit y for civil damages insofar as their conduct does not violate clearly e s t a b lis h e d statutory or constitutional rights of which a reasonable person would

Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam); Yohey v. Collins, 985 F.2d 222, 224­25 (5th Cir. 1993). Federal Rule of Appellate Procedure 28(a) requires an appellant's brief to contain a statement of the issues and an argument.
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Remarkably, Hodge, an attorney, cites no authority in support of the false arrest

claim. Depree v. Saunders, 588 F.3d 282, 286 (5th Cir 2009); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
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h a v e known."4 Here, if Lieutenant Moore's actions were "objectively reasonable u n d e r the circumstances, such that a reasonably competent officer would not h a v e known his actions violated then-existing clearly established law," immunity a t t a c h e s .5 H o d g e 's only hope is to show his arrest was without probable cause ­ and t h a t Lieutenant Moore should have known better.6 "Probable cause exists when t h e totality of the facts and circumstances within a police officer's knowledge at t h e moment of arrest are sufficient for a reasonable person to conclude that the s u s p e c t had committed or was committing an offense."7 Lieutenant Moore had p r o b a b le cause to believe Hodge was committing the state-law crime of R e m a in in g After Being Forbidden. L o u is ia n a 's criminal trespass statute provides: N o person shall without authority go into or upon or remain in or upon or a t t e m p t to go into or upon or remain in or upon any structure, watercraft, o r any other movable, or immovable property, which belongs to another, in c lu d in g public buildings and structures, ferries, and bridges, or any part, p o r t io n , or area thereof, after having been forbidden to do so, either orally o r in writing . . . by any owner, lessee, or custodian of the property or by a n y other authorized person.8

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Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation marks omitted). Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008).

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See id; see also Club Retro L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) ("The Constitutional claim of false arrest requires a showing of no probable cause.").
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Mesa, 543 F.3d at 269 (quotation marks omitted).

LA. REV. STAT. § 14:63.3(A). This court has, in an unpublished but persuasive opinion, interpreted a similar situation as giving officers probable cause under this statute. Singleton v. St. Charles Parish Sheriff's Dep't, 306 F. App'x 195, 199­200 (5th Cir. 2009) (unpublished) (per curiam) (holding that a Sheriff's deputy asking a person to leave a store and his failure to do so gave the Sheriff's deputy probable cause to arrest). The Louisiana Supreme Court has interpreted the statute similarly. See State v. Ceaser, 859 So.2d 639, 644­45 (La. 2003) (holding that a defendant remaining on the premises after being ordered to leave constituted an offense in progress and gave officers probable cause to arrest).

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L o u is ia n a State University authorizes game day marshals to handle seating and t ic k e t in g . Hodge did not possess a ticket for the student disability accessible s e c t io n , and the game day marshal asked Hodge to leave the area. Hodge r e fu s e d . The game day marshal then told Lieutenant Moore that Hodge would n o t leave and asked for help removing him from the restricted area. Lieutenant M o o r e told Hodge to leave the section. He would not. Hodge's refusal after m u lt ip le requests gave Lieutenant Moore probable cause. Lieutenant Moore's a c t io n s were objectively reasonable under the circumstances and he is entitled t o qualified immunity from Hodge's Fourth Amendment-based claim.9 A F F IR M E D .

Although Hodge's brief leaves the court to guess, in the event that he is also bringing a false arrest claim under Louisiana law, summary judgment is affirmed by our finding that Lieutenant Moore had probable cause to arrest. See Deville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009) (per curiam) (explaining probable cause vitiates a Louisiana false arrest action); see also State v. Hathaway, 411 So.2d 1074, 1078­79 (La. 1982).

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