Revised January 24, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30710 _____________________
DEBORAH MORRIS
Plaintiff - Appellant
v.
DILLARD DEPARTMENT STORES, INC; ET AL Defendants DILLARD DEPARTMENT STORES, INC; LIBERTY MUTUAL INSURANCE CO; R.W. BROWN; CITY OF BOSSIER CITY Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana _________________________________________________________________
December 26, 2001
Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.
KING, Chief Judge:
On claims asserting discrimination, unlawful search and
seizure, malicious prosecution, false arrest, false imprisonment,
and intentional infliction of emotional distress, arising from
the detention, arrest and search of the plaintiff on suspicion of
shoplifting, the district court granted summary judgment in favor of all defendants on all claims. For the following reasons, we
AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff-Appellant Deborah Morris, an African-American,
appeals from the district court’s grant of summary judgment in
favor of Defendants-Appellees Dillard Department Stores,
Incorporated (“Dillard’s”), Dillard’s insurer, Liberty Mutual
Insurance Company (“Liberty”), and police officer R.W. Brown on
all constitutional and state law claims brought by Morris. On
March 13, 1998, Morris and a friend, Maxine Crawley, were in
Dillard’s. Officer Brown was off-duty that day from his job as a
municipal police officer for City of Bossier City (“the City”)
and working as a private security guard for Dillard’s. Brown
wore his police uniform while working as a private guard, as
required by the City. An employee of Dillard’s, Meshell Maxey,
reported to Dillard’s security that she observed a suspected
shoplifter. When Brown responded to Maxey’s report, he obtained
Maxey’s description of what she observed and Maxey’s
identification of Morris as the suspect. Maxey’s account
included that Maxey saw Morris conceal a shirt under her jacket
and then replace the merchandise during the time Maxey called for
security. Officer Brown subsequently followed Morris and Crawley
through the store for some time and then out to the parking lot.
In the parking lot, as Morris and Crawley sat in their car, Brown
2 copied down the car’s license plate number and returned to the
store. At no point before Brown returned to the store, did he
attempt to confront, question, detain, search, or arrest Morris
or Crawley. Morris and Crawley subsequently returned to the
store and confronted Brown. Brown then arrested Morris,
handcuffed her, and led her through the store to the security
office where she was held and subsequently searched by a female
police officer called to the scene. Morris was transported to
the police station and “booked.” Officer Brown filled out a
municipal police “Incident Report” detailing the eyewitness
account Brown had obtained from Maxey, as well as his following
and observing Morris, his notation of the license plate, and the
subsequent arrest.
Morris filed suit in state court against Dillard’s, Liberty,
and Officer Brown. The suit was subsequently removed to federal
court. Against Dillard’s and Liberty, Morris brought claims
pursuant to 42 U.S.C. § 1983 (1994), alleging false arrest and
unlawful search and seizure in violation of the Constitution.
She also alleged a violation of 42 U.S.C. § 1981 (1994), on the
basis of her race, of her right to make and enforce contracts,
and various state law claims for false arrest, false
imprisonment, malicious prosecution, and intentional infliction
of emotional distress. Morris also sued Brown in his individual
capacity under 42 U.S.C. § 1983 alleging false arrest and
unlawful search and seizure. On May 3, 2000, the district court
3 granted summary judgment to all defendants on all claims.1
Morris now timely appeals the district court’s summary judgment
in favor of Dillard’s and Liberty on the § 1983, § 1981, and
state law claims, as well as the court’s summary judgment in
favor of Brown on the § 1983 claim.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. See Horton v.
City of Houston, 179 F.3d 188, 191 (5th Cir. 1999) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)). Summary
judgment is only proper where no material issue of fact exists as
to any element of the claim. FED.R.CIV.P. 56(c). Where the non-
movant fails to show specific material facts in dispute, summary
judgment is appropriate. Celotex, 477 U.S. at 324.
III. § 1983 CLAIM AGAINST DILLARD’S AND LIBERTY MUTUAL
The district court granted summary judgment in favor of
Dillard’s and Liberty on Morris’s § 1983 claim alleging false
arrest and unlawful search and seizure in violation of the Fourth
1 An additional state tort claim of invasion of privacy, as well as claims brought against another Dillard’s security guard, Officer Greg Hart, were dismissed at Morris’s request and thus are not before this court. A state law claim of defamation against Dillard’s based on Maxey’s report to Brown of her concealment of the shirt was first raised in Morris’s brief in opposition to defendants’ summary judgment motion. There is no evidence of malice on the part of Maxey, and the district court properly granted summary judgment in favor of Dillard’s.
4 Amendment because the court found that Dillard’s was not a state
actor as a matter of law. As a threshold matter, for a plaintiff
to state a viable claim under § 1983 against any private
defendant, such as Dillard’s or Liberty, the conduct of the
private defendant that forms the basis of the claimed
constitutional deprivation must constitute state action under
color of law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,
924, 928-32 (1982). The Supreme Court has recently reiterated
that the focus of the inquiry into whether a private actor can be
subjected to constitutional liability is whether “such a close
nexus between the State and the challenged action” exists “that
seemingly private behavior may be fairly treated as that of the
State itself.” Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Assoc., 531 U.S. 288, 295 (2001) (internal quotation
omitted).2 Our sister circuits have noted that the state action
doctrine is oft characterized by courts and commentators as “one
of the more slippery and troublesome areas of civil rights
litigation,” one which presents a “paragon of unclarity,”
Gallagher v. “Neil Young Freedom Concert”, 49 F.3d 1442, 1447
2 The “state action” and “under color of law” requirements are technically distinct yet related requirements, and the difference between them is implicated in a claim of joint action by the state and a private defendant. See Lugar, 457 U.S. at 928-39. Nonetheless, this court has collapsed the separate requirements into a single inquiry in determining when a private merchant may be subject to § 1983 liability as a state actor based on the detention, arrest, or search of one of its customers. See, e.g., Smith v. Brookshire Bros., Inc., 519 F.2d 93, 94 (5th Cir. 1975) (per curiam).
5 (10th Cir. 1995) (internal quotations and citations omitted), and
that this is “particularly true in the area of off-duty police
officers acting as security guards” for a private defendant, such
as Dillard’s. Chapman v. Higbee Co., 256 F.3d 416, 426 (6th Cir.
2001), reh’g granted, No. 99-3970, 2001 WL 1301202, at *1 (6th
Cir. Oct. 17, 2001). The Supreme Court has likewise recognized
that the inquiry into whether private conduct bears sufficiently
close nexus to the state is highly circumstantial and far from
precise. Brentwood Acad., 531 U.S. at 295-96 (stating that
“[w]hat is fairly attributable is a matter of normative judgment,
and the criteria lack rigid simplicity” and that “[f]rom the
range of circumstances that could point toward the State behind
an individual face, no one fact can function as a necessary
condition across the board for finding state action”) (citations
omitted).
This court has never before confronted the precise
circumstance of this case in the context of a § 1983 claim
brought against a private employer defendant, namely, one in
which an off-duty police officer is employed as a private
security guard and detains, searches or arrests the customer of
his private employer subsequent to a report of suspicion made by
another employee. However, in five decisions, this court has
confronted analogous circumstances where either a merchant
employee, or on-duty police officers called to the merchant’s
premises, have detained, searched or arrested a customer, and the
6 customer has filed a § 1983 claim against the merchant. In those
decisions, this court has developed a consistent doctrine
applying a nexus-type test to determine when a private enterprise
such as Dillard’s may be subject to constitutional liability.
See Bartholomew v. Lee, 889 F.2d 62, 63 (5th Cir. 1989);
Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d
771, 772 (5th Cir. 1982) (per curiam); White v. Scrivner Corp.,
594 F.2d 140, 141 (5th Cir. 1979); Duriso v. K-Mart No. 4195 Div.
of S.S. Kresge Co., 559 F.2d 1274, 1277 (5th Cir. 1977) (per
curiam); Smith v. Brookshire Bros., Inc., 519 F.2d 93, 94 (5th
Cir. 1975) (per curiam). We first developed the test in
Brookshire, in which customers brought a § 1983 claim against a
merchant after a manager reported suspicion of shoplifting to
police, and the police then detained, fingerprinted, and “booked”
the customers. Brookshire, 519 F.2d at 94. We held that in
order to subject the merchant to liability, plaintiffs had to
show that the police and the store managers were acting “in
concert; that [the private merchant] and the police had a
customary plan whose result was the detention in the present
case.” Id. We found the requisite nexus in that case and
subjected the merchant to liability where we found that the
police and merchant maintained a pre-conceived policy by which
shoplifters would be arrested based solely on the complaint of
the merchant. See id. at 94-95.
7 We have refined application of the doctrine since Brookshire
in three subsequent decisions, White, Hernandez, and Bartholomew,
in which we established that a merchant is not a state actor
unless the conduct on the part of a guard or officer giving rise
to the claimed deprivation occurred based solely on designation
of suspicion by the merchant and was not accompanied by any
independent investigation by the officer. See Bartholomew, 889
F.2d at 63 (declining to find state action on the part of a
defendant shopping mall where arresting officers made the arrest
of customers causing a disturbance based not only on the request
of mall security, but also on independent observation);
Hernandez, 673 F.2d at 771-72 (upholding a bench verdict in favor
of a merchant on a § 1983 claim where the plaintiff was detained
in a store on suspicion of shoplifting, a police officer was
called to the scene, the officer performed an independent
investigation and arrested the plaintiff); White, 549 F.2d at
142-44 (upholding a bench verdict in favor of a merchant on a
§ 1983 claim because unlike the police in Brookshire, the police
in White had a policy of conducting independent investigations to
make determinations to arrest and “did not customarily rely
solely on the merchants’ accusation”). In our two most recent
decisions, Hernandez and Bartholomew, we clarified that the
“vice” exposed by this court in our two earliest cases,
Brookshire and Duriso, in which we found merchants to be state
8 actors, “was that the police, pursuant to a ‘preconceived plan,’
would arrest any person merely because he was designated for
arrest by the store [employee].” Hernandez, 673 F.2d at 772
(citations omitted). See also Bartholomew, 889 F.2d at 63
(explaining that the “crucial” focus of the inquiry is whether an
officer “acted according to a preconceived plan and on the say-so
of the private actor, not on the basis of [the officer’s] own
investigation”).
We further clarified in Bartholomew and Hernandez that an
officer’s partial reliance on a report of suspicion made by a
merchant employee will not create state action where the officer
additionally performs an independent investigation of the alleged
crime. See Bartholomew, 889 F.2d at 63 (finding that merchant
was not state actor because, although the officers’ determination
to arrest was not made “wholly based on any independent
observations of the officers,” the arresting officer testified
that she formed her determination to arrest on the independent
basis of “what she observed” regarding the alleged disturbance
after she arrived at the mall) (internal quotation omitted). See
also Hernandez, 673 F.2d at 771-72. Moreover, we established
that interviewing the employee to obtain an eyewitness account
can constitute sufficient independent investigation where the
officer was not an eyewitness to any conduct constituting an
alleged crime. See id. (holding that “[u]nless he were an eye-
witness, a police officer could not make any arrest if he could
9 not rely on information provided by citizens who witnessed the
events” and that “[s]uch reliance does not convert the informing
party into a state actor”). In Hernandez, we noted evidence
demonstrating that, although the merchant’s “employees called the
police,” the “officer made his own investigation of the incident:
the officer interviewed defendant’s employees and plaintiff,
wrote out his own report, and made his own determination
concerning arrest.” Id. at 772. We thus held that the merchant
was not a state actor. Id. Reading all five of this court’s
decisions beginning with Brookshire together indicates that we
will not subject a merchant to § 1983 liability unless an officer
has failed to perform independent investigation, and that
evidence of a proper investigation may include such indicators as
an officer’s interview of an employee, independent observation of
a suspect, and the officer writing his own report.
Morris relies on Brookshire and Duriso to argue that the
district court erred in granting summary judgment to Dillard’s.
This reliance is misplaced. Uncontroverted evidence indicates
that Officer Brown interviewed Maxey and obtained her eyewitness
account of observing Morris concealing a shirt and then returning
it. Morris’s own deposition testimony indicates that Brown then
followed Morris and Crawley through the store, independently
observing them for some time subsequent to Maxey’s designation of
Morris as a suspect. It is also uncontroverted that at the time
he arrested Morris, Brown filled out his own police incident
10 report detailing his interview of Maxey, detailing his following
and observing Morris subsequent to that interview, as well as his
copying of the license, the confrontation, and the arrest.3
Brown further admits that he had made no determination to arrest
Morris directly subsequent to Maxey’s designation to him of
Morris as a suspect, nor after Morris exited the store, but that
he waited until after Morris confronted him to arrest her. That
testimony underscores that it was not Maxey’s designation that
formed the sole basis of the arrest. The total evidence fails to
evince the “vice” of either Brookshire or Duriso, but rather
indicates that Officer Brown performed an independent
investigation of the alleged crime that included obtaining
Maxey’s eyewitness report, independent observation of Morris, and
the completion of Brown’s own incident report.4 Under White,
Hernandez, and Bartholomew, therefore, Dillard’s is not a state
actor for the purposes of § 1983 liability.
3 There is further testimony in the record by Maxey that she told Brown not to arrest Morris. However, because this evidence is controverted by Brown’s testimony that he has no knowledge of Maxey telling him not to arrest Morris, this evidence cannot be considered in our review of summary judgment. Regardless, such evidence is immaterial to our conclusion that Brown made an independent investigation. 4 We note further evidence in the record indicating that the City police department may have maintained a policy by which officers were permitted to arrest shoplifters based on no more than the report of suspicion by merchant employees. However, under Bartholomew, any such policy fails to raise a material fact issue where there is uncontroverted evidence that Brown made an independent determination to arrest. See Bartholomew, 889 F.2d at 63.
11 Morris further argues that the fact that Brown’s conduct
complied with the Louisiana shoplifting statute, LA CODE CRIM.
PROC. ANN. art 215 (West 1991), creates a material issue of fact
as to whether Dillard’s was a state actor. That statute permits
merchants to detain suspected shoplifters and permits “peace
officers” to arrest suspected shoplifters based solely on a
merchant’s “complaint.” LA CODE CRIM. PROC. ANN. art 215.5 The
Supreme Court has held that a private party’s invocation of state
legal procedures does not constitute state action where the
procedure is permissive and not mandatory. See Lugar, 457 U.S.
at 939 n.21; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-65
(1978). Moreover, in both White and Hernandez, this court relied
on the reasoning of Flagg Bros. and expressly rejected a
plaintiff’s contention that a merchant’s compliance with the
Louisiana shoplifting statute creates state action on the part of
the merchant because article 215 permits merchant action, but
does not compel such action. White, 594 F.2d at 142-43; see also
5 The text of article 215 reads in relevant part:
A.(1) A peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises ... when he has reasonable cause to believe that the person has committed a theft of goods .... (2) A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant .... A complaint made to a peace officer by a merchant or a merchant’s employee or agent shall constitute reasonable cause for the officer making the arrest.
12 Hernandez, 673 F.2d at 771-72. Consequently, Morris fails to
raise any material issue of fact as to whether Dillard’s was a
state actor based on the merchant’s compliance with article 215.6
The district court did not err, therefore, in granting summary
judgment in favor of Dillard’s and Liberty on the § 1983 claim.
IV. § 1981 CLAIM AGAINST DILLARD’S AND LIBERTY
Dillard’s and Liberty on Morris’s § 1981 claim, alleging that
Dillard’s interfered with Morris’s right to make or enforce a
contract with the merchant because of her race. Morris’s claim
is based on the uncontroverted fact that Dillard’s banned Morris
from the store for a period subsequent to her arrest. The court
found that Morris failed to show the loss of an actual contract
6 Morris further argues that the Eighth Circuit’s decision in Murray v. Wal-Mart, Inc., 874 F.2d 555, 558-59 (8th Cir. 1989), in which that court found a merchant to be a state actor, counsels this court to find that Dillard’s was a state actor. The court in Murray, however, based its determination in part on that court’s finding that arresting officers had failed to perform sufficient “independent investigation” prior to arrest and full prosecution of the suspect. See Murray, 874 F.2d at 559. Although this court might disagree with the determination of the Murray court as to whether an independent investigation adequate to preclude § 1983 liability occurred, the holding of the case is consistent with our doctrine that, absent an independent investigation by an officer, a merchant may under some circumstances be subject to § 1983 liability. Moreover, the Murray court relied additionally on an Arkansas state law permitting merchant detention of shoplifters as a factor creating the required nexus between the state and a merchant, see id., an approach we specifically rejected in White and Hernandez. We find Morris’s reliance on Murray unpersuasive.
13 interest and failed to offer any evidence that Dillard’s took any
action against her based on her race.7 To sustain a § 1981
claim, Morris must establish three elements: (1) that she is a
member of a racial minority; (2) that Dillard’s had intent to
discriminate on the basis of race; and (3) that the
discrimination concerned one or more of the activities enumerated
in the statute, in this instance, the making and enforcing of a
contract. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.
1997). Moreover, a plaintiff must establish the loss of an
actual, not speculative or prospective, contract interest. See,
e.g., id. at 275 (denying recovery under § 1981 to a plaintiff
who “failed to present any evidence that [the defendant] did in
fact interfere with the contract”); Phelps v. Wichita Eagle-
Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989) (affirming dismissal
of a § 1981 claim where a plaintiff alleged merely “possible loss
of future opportunities”). Morris contends that the fact that
she was banned from Dillard’s following her arrest constitutes
the requisite loss of actual contract interest. We agree with
the district court, however, that such a ban is insufficient to
constitute the loss of an actual contract interest.
7 Morris contends that the district court erred in finding that Morris failed to offer any evidence of racial discrimination because the court failed to properly consider her motion to compel discovery on the issue of whether Dillard’s engaged in a pattern of discrimination. Because we find that the district court did not err in finding that Morris failed to show evidence of the loss of any actual contract interest, we need not address this argument.
14 This court has never confronted a § 1981 claim brought
against a merchant in the retail context. Other courts that have
considered such claims have consistently rejected them as too
speculative where a plaintiff makes allegations of the mere
possibility that a retail merchant would interfere with a
customer’s attempt to contract in the future. See Morris v.
Office Max, Inc., 89 F.3d 411, 414-15 (7th Cir. 1996) (rejecting
a plaintiff’s § 1981 claim asserting that a merchant interfered
with his “prospective contractual relations” where the plaintiff
had completed a purchase prior to being detained, despite the
fact that the plaintiff was examining additional goods with
intent to purchase at the time he was detained) (internal
quotation omitted); Youngblood v. Hy-Vee Food Stores, Inc., 266
F.3d 851, 853-55 (8th Cir. 2001) (holding that where a plaintiff
purchased some beef jerky and was arrested for concealing other
goods, the merchant “cannot be said to have deprived [the
plaintiff] of any benefit of any contractual relationship, as no
such relationship existed” at the time of the arrest because
“nothing that happened after the sale created any further
contractual duty on [the merchant’s] part”); Hickerson v. Macy’s
Dep’t Store at Esplanade Mall, No. CIV. A. 98-3170, 1999 WL
144461, at *2 (E.D. La. Mar. 16, 1999) (holding that a plaintiff
was not “prevented from making a particular purchase, or from
returning [goods] he had previously bought” and thus granting
summary judgment in favor of a merchant because “[t]here is no
15 generalized right under section 1981 to have access to
opportunities to make prospective contracts”). In contrasting
circumstances, where a customer has engaged in an actual attempt
to contract that was thwarted by the merchant, courts have been
willing to recognize a § 1981 claim. See Christian v. Wal-Mart
Stores, Inc., 252 F.3d 862, 874 (6th Cir. 2001) (“[W]e have no
trouble concluding that [plaintiff] made herself available to
enter into a contractual relationship for services ordinarily
provided by Wal-Mart: the record reflects that she had selected
merchandise to purchase ... and would, in fact, have completed
her purchase had she not been asked to leave the store.”);
Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 1996 WL
617165, at *3-4 (N.D. Ill. Oct. 23, 1996) (holding that “a § 1981
claim must allege that the plaintiff was actually prevented, and
not merely deterred, from making a purchase or receiving service
after attempting to do so,” and finding a plaintiff’s allegation
sufficient to sustain a § 1981 claim where the “plaintiff was
midstream in the process of making a contract for [a] goods
purchase” at a cashier at the time an officer arrested him).
Consequently, to raise a material issue of fact as to her § 1981
claim, Morris must offer evidence of some tangible attempt to
contract with Dillard’s during the course of the ban, which could
give rise to a contractual duty between her and the merchant, and
which was in some way thwarted.
16 Morris fails to offer any such evidence. It is
uncontroverted that Morris left Dillard’s of her own accord
without attempting to make any purchase, or to engage in any
other transaction with Dillard’s prior to, during, or subsequent
to her detention and arrest by Officer Brown. It is likewise
uncontroverted that Dillard’s banned Morris from the premises
after her arrest and that the ban was subsequently lifted.
Morris points to no evidence in the record indicating that she
made any tangible attempt to purchase, or to return, specified
goods at the store, or to enter any other contractual agreement
with Dillard’s, at any time during the course of the ban. We
agree with the district court, therefore, that Morris’s
allegations based on the ban alone are too speculative to
establish loss of any actual contractual interest owed to her by
Dillard’s. Thus, the district court did not err in granting
summary judgment in favor of Dillard’s and Liberty on the § 1981
claim.
V. § 1983 CLAIM AGAINST OFFICER BROWN
The district court granted summary judgment to Officer Brown
on Morris’s § 1983 claim against him individually, which alleged
false arrest and unlawful search and seizure. The court found
that Brown is entitled to qualified immunity from suit based on
his reliance on article 215, a Louisiana statute that authorizes
arrest of a shoplifter where an officer has probable cause for
17 the arrest. See LA CODE CRIM. PROC. ANN. art 215.8 That statute
further permits an officer to form probable cause for the arrest
based on the “complaint” of suspicion of “theft” made by a
merchant’s employee. Id. The court held that Brown could not
have known he was violating Morris’s established constitutional
right to be free from arrest and search without probable cause.
Police officers, like other public officials acting within
the scope of their official duties, are shielded from claims of
civil liability, including § 1983 claims, by qualified immunity.9
See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). This
court applies a two-step analysis to determine whether an officer
is entitled to qualified immunity from federal suit. First, we
determine whether a plaintiff has alleged a violation of a
clearly established constitutional right, and second, whether the
officer’s conduct was “objectively reasonable in light of clearly
established law at the time of the alleged violation.” Chiu v.
8 The statute uses the phrase “reasonable cause” not probable cause. However, Louisiana courts have recognized that, in the case of a merchant detaining a suspect, article 215 requires something less than probable cause, but an officer is not relieved of the duty to form “probable cause” when making an arrest. See, e.g., Townsend v. Sears, Roebuck & Co., 466 So.2d 675, 677 (La. Ct. App. 1985) (“‘Reasonable cause’ under article 215 is not synonymous with probable cause, when a detention [by a merchant], rather than an arrest [by a peace officer] is involved.”). 9 The parties do not dispute that when Officer Brown arrested Morris, his conduct constituted state action under color of law for the purposes of the § 1983 claim brought against him in his individual capacity.
18 Plano Indep. Sch. Dist., 260 F.3d 330, 343 (5th Cir. 2001)
(internal quotations and citations omitted). This court has
divided the first prong of this inquiry into three
determinations: 1) whether the plaintiff alleges a deprivation
of a constitutional right; 2) whether the right was clearly
established at the time of the alleged violation; and 3) whether
the defendant actually violated that right. See id. The parties
do not dispute that Morris has alleged deprivation of her clearly
established right to be free from arrest and search without
probable cause, or that the right was clearly established at the
time of her arrest. The parties only dispute whether Brown had
probable cause.
An officer’s entitlement to qualified immunity based on
probable cause is difficult for a plaintiff to disturb. See
Brown v. Lyford, 243 F.3d 185, 190, n.7 (5th Cir. 2001) (holding
that “[a] plaintiff must clear a significant hurdle to defeat
qualified immunity” and that there “must not even arguably be
probable cause for the search and arrest for immunity to be
lost”) (internal quotation omitted). Thus “if officers of
reasonable competence could disagree on whether or not there was
probable cause to arrest a defendant, immunity should be
recognized.” Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995)
(citation omitted). It is established law within this circuit
and others that an officer not present at the time of an alleged
crime may form probable cause sufficient to entitle that officer
19 to qualified immunity where the officer interviews an eyewitness
to the alleged crime. See United States v. Burbridge, 252 F.3d
775, 778 (5th Cir. 2001). In Burbridge, we held:
An ordinary citizen’s eyewitness account of criminal activity and identification of a perpetrator is normally sufficient to supply probable cause ... “unless, at the time of the arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation.”
Id. (quoting Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.
1999)) (internal citations omitted). See also J.B. v. Washington
County, 127 F.3d 919, 930 (10th Cir. 1997) (“[I]f it seems
reasonable to the police to believe that the [ordinary citizen]
eyewitness was telling the truth, they need not take any
additional steps to corroborate the information regarding the
crime before taking action.”). Therefore, Brown was reasonably
entitled to rely on Maxey’s eyewitness account of an alleged
theft and her identification of Morris as the suspect to form
probable cause to arrest, absent any alleged facts that could
have given him reason to question the account.
Morris concedes on appeal that Officer Brown is protected
from civil liability due to qualified immunity if an employee
made a complaint to him of “theft” of goods forming the basis of
probable cause. Additionally, Morris does not claim that Brown
had any reason to question the veracity of Maxey’s eyewitness
20 account or identification of Morris as a suspect.10 Morris
contends only that no report of theft was made that could have
formed the basis of probable cause. This contention is contrary
to Louisiana law.
The Louisiana theft statute at issue reads in relevant part:
A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, ... without consent of the merchant to the misappropriation or taking .... An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person: (1) Intentionally conceals, on his person or otherwise, goods held for sale.
LA REV. STAT. ANN § 14:67.10 (West 1997).
Louisiana appellate courts have, at least twice, interpreted this
statute to mean that a theft includes concealment of goods by a
suspect, regardless of whether the suspect may have subsequently
returned the goods to the merchant prior to exiting the premises.
See Brown v. Hartford Ins. Co., 370 So.2d 179, 180-82 (La. Ct.
App. 1979) (holding that a jury could have found that a store
10 Morris does contest whether Maxey could have in fact observed Morris conceal a shirt because Morris claims she never concealed any goods on her person. This contention is immaterial, however. Whether the crime actually occurred or whether a suspect is eventually convicted is irrelevant to the probable cause analysis. The inquiry focuses only on what the officer could have reasonably believed at the time based on the relevant law, as well as the facts supplied to him by the eyewitness. See, e.g., Sorenson v. Ferrie, 134 F.3d 325, 328 n.3 (5th Cir. 1998) (“The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted--indeed, for every suspect released.”) (internal quotation omitted).
21 employee had reasonable cause to believe a theft occurred,
pursuant to section 14:67, where employees observed the suspect
conceal a good in her purse then place the good on a chair
beneath her in an attempt to abandon the good prior to exiting
the store). The court in Hartford Insurance further held that
the theft occurred at the moment of the taking, and the fact that
[the suspect] later ‘ditched’ the [good]” would not only be
“irrelevant,” but also an “incriminating factor” indicating
intent of theft. Id. Likewise, in State v. Ellis, 618 So.2d
616, 617-18 (La. Ct. App. 1993), a Louisiana appellate court held
that, pursuant to section 14:67, “[o]ne who takes the property of
another, intending at the time of the taking to permanently
deprive the owner of that property, is nonetheless guilty of the
crime of theft though she later, becoming frightened or having a
change of heart, decides to return it and does so.”
Consequently, under the interpretation of the theft statute
adopted by Louisiana appellate courts, it was reasonable for
Officer Brown to believe that the conduct described to him by
Maxey comprised an allegation of theft and thus, because he
obtained an eyewitness report, that he had probable cause to
arrest.11
11 Morris claims that four decisions by other courts compel a finding that Brown lacked probable cause. However, all four decisions involve circumstances distinguishable from those in the instant case where courts held that an officer lacked probable cause because the officer ignored evidence, or failed to pursue investigation to find easily obtainable evidence, which
22 Morris further contends that evidence shows Brown harbored
“angry” motives in making the arrest, which motives she contends
vitiate Brown’s entitlement to qualified immunity. However,
because the test for immunity is solely one of objective
reasonableness, any “subjective intent, motive, or even outright
animus [is] irrelevant in a determination of qualified immunity
based on arguable probable cause to arrest, just as an officer’s
good intent is irrelevant when he contravenes settled law.”
Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000) (citation
omitted). Thus, any subjective, even angry, motives on Brown’s
part are immaterial to our determination that he had probable
cause to arrest and was consequently entitled to qualified
would have exculpated the suspect. See Lusby v. T.G. & Y Stores, Inc., 749 F.2d 1423, 1431-32 (10th Cir. 1984) (finding lack of probable cause where an arresting officer could have easily ascertained that sunglasses, which the suspect was alleged to have stolen, had been paid for in a prior visit to the store); Baptiste v. J.C. Penney Co., Inc., 147 F.3d 1252, 1256-57 (10th Cir. 1998) (finding a lack of probable cause where a merchant employee alleged to officers that a suspect stole a ring, but a videotape the officers viewed prior to conducting a search clearly indicated that the suspect had not stolen any merchandise); McNeely v. National Tea Co., 94-CA-392 (La. App. 5 Cir. 3/28/95), 653 So.2d 1231, 1234-37 (finding an officer lacked reasonable cause to detain a shoplifter where an employee reported a theft of some batteries, but did not observe any concealment); Murray, 874 F.2d at 559-60 (finding that store employees lacked probable cause to arrest where a suspect demonstrated she had no goods on her person and thus that she failed to commit theft under applicable Arkansas statutes). Evidence shows that Brown did not ignore any facts that would exculpate Morris of theft under Louisiana law. Thus, Morris’s reliance on these four decisions is misplaced and unpersuasive.
23 immunity. The district court, therefore, did not err in granting
summary judgment in favor of Officer Brown on the § 1983 claim.
VI. STATE LAW CLAIMS AGAINST DILLARD’S AND LIBERTY MUTUAL
Although the district court granted summary judgment on all
of the federal claims, the court nonetheless retained
jurisdiction over the pendent state law claims for false arrest,
false imprisonment, malicious prosecution, and intentional
infliction of emotional distress, and likewise granted summary
judgment on those claims in favor of Dillard’s and Liberty on the
merits.12 Morris’s claims for false arrest, false imprisonment,
and malicious prosecution fail as a matter of law because Brown
had probable cause to arrest Morris.13 See Tabora v. City of
12 Ordinarily, the fact that all federal claims have been disposed of counsels in favor of the district court declining to retain jurisdiction over any pendent state law claims, Branson v. Greyhound Lines, Inc. Amalgamated Council Ret. & Disability Plan, 126 F.3d 747, 758 n.9 (5th Cir. 1997) (citation omitted), but dismissal is not mandatory, and the district court has discretion to retain jurisdiction, a decision to which this court defers absent abuse of that discretion. See McClelland v. Gronwaldt, 155 F.3d 507, 520-21 (5th Cir. 1998). Since the instant state claims present no novel issues of state law and are easily dispatched, we find that the district court did not abuse its discretion in deciding the claims on the merits and thus, in the interest of judicial economy, we will decide them rather than dismissing them to be pursued in state court. Cf. Batiste v. Island Records, Inc., 179 F.3d 217, 227-28 (5th Cir. 1999) (finding that a district court abused its discretion in not maintaining jurisdiction over pendent state claims where such claims presented no “complex,” “novel [,] or especially unusual questions [of state law] which cannot be readily and routinely resolved by the court”). 13 The district court held that at the time Brown detained and arrested Morris, he was acting in his official capacity, and not as an employee of Dillard’s, and thus that his actions could
24 Kenner, 94-613 (La. App. 5 Cir. 1/18/95), 650 So.2d 319, 322-23
(holding that an essential element of claims under Louisiana law
of false arrest, false imprisonment, and malicious prosecution is
a lack of probable cause). Consequently, the district court did
not err in granting summary judgment in favor of Dillard’s and
Liberty on the claims of false arrest, false imprisonment, and
malicious prosecution.
Morris’s claim for intentional infliction of emotional
distress likewise fails as a matter of law because she fails to
point to evidence of the level of extreme and outrageous conduct
required to sustain the claim. An emotional distress claim under
Louisiana law requires that the plaintiff establish three
elements: (1) that the conduct of the defendant was extreme and
outrageous; (2) that the emotional distress suffered was severe;
and (3) that the defendant desired to inflict severe emotional
distress or knew that such distress would be substantially
certain to result from the conduct. White v. Monsanto Co., 585
not be attributed to Dillard’s for the purposes of the false arrest, false imprisonment, and malicious prosecution claims against Dillard’s. We find it unnecessary to make any determination regarding the issue of respondeat superior because Morris’s claims fail in any event because Brown had probable cause to arrest. Morris attempts to argue additionally on appeal that because the report made by Dillard’s employee Maxey led to Morris’s arrest, Dillard’s may be liable on a theory of respondeat superior for Maxey’s conduct. Because this argument based on Maxey’s conduct is raised for the first time on appeal, we decline to address it. See, e.g., Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 944 n.8 (5th Cir. 1999).
25 So.2d 1205, 1209 (La. 1991).14 Louisiana courts, like courts in
other states, have set a very high threshold on conduct
sufficient to sustain an emotional distress claim, and the
Louisiana Supreme Court has noted that “courts require truly
outrageous conduct before allowing a claim ... even to be
presented to a jury.” See, e.g., Nicholas v. Allstate Ins. Co.,
99-2522 (La. 8/3/00), 765 So.2d 1017, 1022, 1024-25 (adopting the
approach of the RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1977)).
The conduct described in this record does not rise to the level
of extreme and outrageous conduct required to support a claim.
The district court did not err, therefore, in granting summary
judgment in favor of Dillard’s and Liberty on the emotional
distress claim.
VII. CONCLUSION
For the foregoing reasons, the district court’s summary
judgment in favor of Dillard’s and Liberty on Morris’s claims
against them brought pursuant to 42 U.S.C. § 1983 and § 1981, as
well as on her state law claims of false arrest, false
imprisonment, malicious prosecution, and intentional infliction
14 Morris contends that the district court erred in granting summary judgment on her emotional distress claim because the court ignored evidence she submitted, in the form of medical records from a treating psychiatrist, indicating that Morris suffers Post Traumatic Stress Disorder as a direct result of her arrest. Assuming, arguendo, that the district court erred in improperly considering evidence regarding the severe distress element, Morris’s claim nonetheless fails because she fails to point to sufficient evidence establishing the element of extreme and outrageous conduct.
26 of emotional distress, is AFFIRMED. The district court’s summary
judgment in favor of Officer Brown on Morris’s claim against him
brought pursuant to 42 U.S.C. § 1983 is likewise AFFIRMED.