Gordy v. Burns

• Decision Date: 17 June 2002
• Docket Number: No. 01-30234.,01-30234.
• Citation: 294 F.3d 722
• Parties: Stanley GORDY, Plaintiff-Appellee, v. William BURNS, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; et al., Defendants, William Burns, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; R. Gerdes, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; G. Simone, Lieutenant, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; and Harry Lee, Individually and in his official capacity as the sheriff of the Jefferson Parish Sheriff's Department, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

294 F.3d 722

Stanley GORDY, Plaintiff-Appellee, v. William BURNS, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; et al., Defendants William Burns, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; R. Gerdes, Detective/Agent, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; G. Simone, Lieutenant, Individually and in his official capacity as an officer of the Jefferson Parish Sheriff's Department; and Harry Lee, Individually and in his official capacity as the sheriff of the Jefferson Parish Sheriff's Department, Defendants-Appellants.

No. 01-30234.

United States Court of Appeals, Fifth Circuit.

June 17, 2002.

Charles Gary Wainwright, Law Offices of C. Gary Wainwright, New Orleans, LA, for Plaintiff-Appellee.

Franz L. Zibilich (argued), New Orleans, LA, for Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES, EMILIO M. GARZA and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Stanley Gordy filed this § 1983 action against officers of the Jefferson Parish Sheriff's Department. Gordy's sole viable claim was for malicious prosecution arising from his arrest for possession of marijuana with intent to distribute. Following a nonjury trial, a magistrate judge entered judgment for Gordy and awarded him $20,000 in damages. Having reviewed the record, we conclude that the officers are entitled to judgment as a matter of law because there was probable cause to support the drug charges.

I. BACKGROUND

In late August 1997, Lieutenant Glenn Davis of the Jefferson Parish Sheriff's Department received a telephone call from an agent of the federal Drug Enforcement Administration. The DEA agent informed Lieutenant Davis that United Parcel Service employees in California had discovered a package containing approximately 20 pounds of marijuana addressed to "C. Charles" at an apartment in Metairie, Louisiana. Davis drove to the apartment and observed that the name on the mailbox was "M. Gordy" (rather than "C. Charles"), but he assumed that the addressee's name was fictitious. Later that evening, Lieutenant Davis submitted an affidavit and application for a search warrant to a Jefferson Parish district judge. The affidavit read in part, "[U]pon arrival of the package containing the marijuana[,] a controlled delivery will be attempted.... Officers request that a search warrant be issued subsequent to this delivery." The judge issued the search warrant.

Lieutenant Gerard Simone and Officers William Burns and Robert Gerdes delivered the package on September 2, 1997. There is conflicting testimony as to whether a UPS agent went to the door or whether Lieutenant Simone posed as a UPS agent. The key fact, however, is that defendant Stanley Gordy accepted the package from someone he believed was a UPS delivery-man. Gordy admits signing the receipt using his nickname, "Chuck Gordy," but he insists that he did not look carefully at the package before signing for it.

The officers waited a few minutes before approaching the apartment to execute the search warrant. It is undisputed that Gordy stepped out of the apartment, paused for a moment, and then went back inside and locked the door. Gordy testified that he was going to McDonald's when he realized that he had no cash, so he went to retrieve his wallet. The officers testified that Gordy scampered inside after making eye contact with the officers, who were wearing "raid jackets" identifying them as policemen. The officers forced their way into the apartment, arrested Gordy, took custody of the package, and searched the apartment before taking Gordy to the sheriff's office.

Officer Burns prepared the police report on behalf of the officers. Officer Burns's report omitted certain facts, most notably that Gordy had not opened the package and that the package contained approximately 15 pounds of marijuana instead of 20 pounds, as the officers had expected.

Gordy was charged with possession of marijuana with intent to distribute, and a bill of information was filed. However, the district attorney ultimately decided not to prosecute the case and issued a nolle prosequi on March 2, 1998. The record of these state court proceedings was expunged at Gordy's request, and neither party introduced evidence indicating why the district attorney abandoned the prosecution.

On March 1, 1999, Gordy filed this action under 42 U.S.C. § 1983 against Jefferson Parish Sheriff Harry Lee, Lieutenant Simone, and Officers Burns and Gerdes. Gordy's complaint included claims for false arrest, unlawful search and seizure, false imprisonment, excessive force, and malicious prosecution — all in violation of the Fourth and Fourteenth Amendments. The parties agreed to a non-jury trial before a magistrate judge. See 28 U.S.C. § 636(c).

The magistrate judge dismissed all of Gordy's claims except malicious prosecution as time-barred. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998)("[F]or a § 1983 action, the court looks to the forum state's personal-injury limitations period. In Louisiana, that period is one year."). The magistrate judge also dismissed all claims against Sheriff Lee because there was no evidence that Lee was personally involved or that the officers were acting pursuant to a policy implemented by the sheriff. See Sanders v. English, 950 F.2d 1152, 1159-60 (5th Cir.1992). Gordy has not appealed these rulings.

The sole claim at trial, then, was malicious prosecution. Gordy argued that he was prosecuted because the officers maliciously provided false or misleading information to the district attorney. The magistrate judge agreed. After ruling that the officers were not entitled to qualified immunity, the magistrate judge entered judgment for Gordy and awarded him $12,000 in compensatory damages and $8,000 in punitive damages. This appeal followed.

II. DISCUSSION

A

It would be an understatement to say that this circuit's caselaw regarding so-called "Fourth Amendment malicious prosecution" claims under § 1983 is both confused and confusing. See, e.g., Kerr v. Lyford, 171 F.3d 330, 342-43 (5th Cir.1999) (Jones, J., concurring). Deciding the issue presented in this case forces us to return to first principles.

Unquestionably, state-law tort claims — such as the common-law tort of malicious prosecution — are not, by themselves, actionable under § 1983. Price v. Roark, 256 F.3d 364, 370 (5th Cir.2001)(citing Nesmith v. Taylor, 715 F.2d 194, 196 (5th Cir.1983)). Because § 1983 requires some showing that the plaintiff has been deprived of a federal right, but no constitutional provision specifically guarantees against the institution of groundless criminal prosecutions, a "malicious prosecution" claim under § 1983 is a misnomer.

Nevertheless, the rule in this circuit is that the elements of the state-law tort of malicious prosecution and the elements of the constitutional tort of "Fourth Amendment malicious prosecution" are coextensive. See Piazza v. Mayne, 217 F.3d 239, 245 (5th Cir.2000). Although Piazza purported not to decide this issue, the rule is rooted firmly in Fifth Circuit precedent. See Evans v. Ball, 168 F.3d 856, 863 n. 9 (5th Cir.1999)("[M]alicious prosecution may be a constitutional violation, but only if all of its common law elements are established...."); Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999)(same).

Most other circuits emphasize, however, that a malicious prosecution claim under § 1983 is more appropriately characterized as "a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort." Lambert v. Williams, 223 F.3d 257, 261 (4th Cir.2000)(citing decisions from the First, Second, Seventh, Tenth, and Eleventh Circuits). As the Eleventh Circuit succinctly put it, the "federal `right' to be free from malicious prosecution is actually a description of the right to be free from an unlawful seizure which is part of the prosecution." Whiting v. Traylor, 85 F.3d 581 584 n. 4 (11th Cir.1996); see also Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995)("The Fourth Amendment right implicated in a malicious prosecution action is ... the right to be free of unreasonable or unwarranted restraints on personal liberty."); Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994)(plurality opinion) (emphasizing the Fourth Amendment's concern about "pretrial deprivations of liberty").¹ In most other circuits, a § 1983 plaintiff who alleges malicious prosecution must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to certain elements of the common-law tort of malicious prosecution.²

But in the Fifth Circuit, a plaintiff in a § 1983 malicious prosecution action need establish only the elements of common-law malicious prosecution. This circuit repeatedly has indicated — without explanation — that courts must look to the elements of a malicious prosecution claim under the law of the state where the offense was committed. The confusion that arises is illustrated nicely by the post-Albright decision in Taylor v. Gregg, 36 F.3d 453 (5th Cir.1994). Taylor declared that a § 1983 plaintiff had to prove seven elements in order "[t]o prevail on a [Fourth Amendment] malicious prosecution claim in Texas," and those seven elements were taken directly from Texas common law. Taylor, 36 F.3d at 455 (emphasis added)(citing Brown v. United States, 653 F.2d 196, 198-99 (5th Cir.1981)).³ But in determining the meaning of one of those elements — termination in favor of the accused — the court looked not to Texas decisions but to decisions from the Second Circuit, the Fourth Circuit, and federal district courts from around the country. Taylor, 36 F.3d at 455-56. Taylor suggests that the elements...