McLin v. Ard, 16-30201

• Citation: 866 F.3d 682
• Decision Date: 08 August 2017
• Docket Number: No. 16-30201,16-30201
• Parties: Royce Denton MCLIN, Plaintiff–Appellant v. Jason Gerald ARD, In his Individual and Official Capacity as Sheriff of Livingston Parish; Benjamin Thomas Ballard, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; Jack R. Alford, Jr., In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; Stan Carpenter, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Major; Brian P. Smith, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Lieutenant Colonel; Bonita G. Sager, In his/her Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; William Dorsey, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Deputy, also known as Willie; James R. Norred, Jr., In his Individual and Official Capacity as a Councilman, also known as Jim; Cynthia G. Wale, In her Individual and Official Capacity as a Councilwoman, also known as Cindy; Chance McGrew Parent, In his Individual and Official Capacity as a Councilman, Defendants–Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

866 F.3d 682

Royce Denton MCLIN, Plaintiff–Appellant

v.Jason Gerald ARD, In his Individual and Official Capacity as Sheriff of Livingston Parish; Benjamin Thomas Ballard, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; Jack R. Alford, Jr., In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; Stan Carpenter, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Major; Brian P. Smith, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Lieutenant Colonel; Bonita G. Sager, In his/her Individual and Official Capacity as a Livingston Parish Sheriff's Office Detective; William Dorsey, In his Individual and Official Capacity as a Livingston Parish Sheriff's Office Deputy, also known as Willie; James R. Norred, Jr., In his Individual and Official Capacity as a Councilman, also known as Jim; Cynthia G. Wale, In her Individual and Official Capacity as a Councilwoman, also known as Cindy; Chance McGrew Parent, In his Individual and Official Capacity as a Councilman, Defendants–Appellees

No. 16-30201

United States Court of Appeals, Fifth Circuit.

FILED August 8, 2017

Tillman J. Breckenridge, Bailey Glasser, L.L.P., Washington, DC, John Christopher Alexander, Sr., Esq., Attorney, Alexander Law Firm, Baton Rouge, LA, for Plaintiff–Appellant.

Cullen John Dupuy, Esq., Druit George Gremillion, Jr., Esq., Attorney, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Jason Gerald Ard, Benjamin Thomas Ballard, Jack R. Alford, Jr., Stan Carpenter, Brian P. Smith, Bonita G. Sager, and William Dorsey.

Christopher M. Moody, Moody Law Firm, Hammond, LA, for James R. Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent.

Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Royce Denton McLin alleges that members of the Livingston Parish Council and Livingston Parish Sheriff's Office maliciously conspired to prosecute him in retaliation for McLin's online comments about certain Council members. He contends that the Defendants obtained invalid arrest warrants, to which McLin surrendered, and that, as a result, he was issued a misdemeanor summons charging him with criminal defamation. After the charges were dismissed, McLin sued the Defendants under 42 U.S.C. § 1983, alleging violations of his First, Fourth, Fifth, and Fourteenth Amendment rights. The district court dismissed all claims. McLin appeals the dismissal of his First and Fourth Amendment claims. We AFFIRM.

I.

We recount the facts as alleged in McLin's complaint. Sometime before April 16, 2012, the Livingston Daily Times published an opinion piece titled "Sue Happy Seven Councilmen," which discussed complaints about the Livingston Parish Council's misuse of public funds. A URL link to the piece was posted on a separate Facebook page maintained by the Livingston Daily Times. The Facebook post was open to public comment. Using a pseudonym, someone posted "critical comments" about three Council members—James R. Norred, Jr., Cynthia G. Wale, and Chance McGrew Parent (the "Council Defendants"). McLin alleges that the statements "merely constituted criticism of official conduct of public officials."

On April 20, 2012, Parent filed a report with the Livingston Parish Sheriff's Office ("LPSO") alleging that the anonymous Facebook user had "posted a comment in regards to numerous elected counsel [sic] members." In response, LPSO Detective Benjamin Thomas Ballard obtained subpoenas to Facebook and Charter Communications. The subpoena responses linked McLin's home address to the Facebook account that posted the critical comments.

Ballard obtained a search warrant for McLin's home, and he and LPSO Detective Jack R. Alford, Jr. executed the search warrant on June 11, 2012. Ballard and Alford confiscated electronic devices and equipment, and a forensic analysis purportedly linked one of the confiscated computers to the anonymous Facebook user.

Upon receiving this information, Ballard, Alford, and other officers (together with Sheriff Jason Gerald Ard, the "Officer Defendants"), and the Council Defendants (together with the Officer Defendants, the "Defendants") met on August 16, 2012, to discuss pursuing criminal charges against McLin. Some of the officers urged that criminal defamation charges under Louisiana's criminal defamation statute— Louisiana Revised Statute § 14:47 —were warranted. The Council Defendants asked to pursue the charges against McLin and "swore out criminal complaints" contending that they were each subjected to criminal defamation as a result of comments McLin allegedly posted to Facebook.

McLin alleges that these "arrest warrant affidavits"¹ were "materially false." According to McLin, the "false and misleading statements" contained in the affidavits "originated, at least in part, from a self-serving and unreliable ‘review’ of illegally[ ]obtained evidence" by certain officers." McLin alleges that these "materially false statements were thereafter sponsored, ratified, affirmed, supported, and relied upon" the officers. McLin further alleges that the "facially[ ]invalid arrest warrants arose from the false statements made by [the Defendants]," and that "the [Officer Defendants] conspired with the [Council Defendants] to create false and materially misleading arrest warrant affidavits as the necessary predicate to securing a formal warrant for Mr. McLin's arrest."

Based on the sworn criminal complaints, three warrants for McLin's arrest were issued on August 16, 2012. McLin learned of the charges, and later that day, voluntarily surrendered at the sheriff's office and signed a misdemeanor summons pertaining to the three purported criminal defamation violations. Four months later, an assistant district attorney dismissed the charges.

II.

On August 16, 2013, McLin sued the Defendants for money damages under 42 U.S.C. § 1983,² alleging First, Fourth, Fifth, and Fourteenth Amendment violations, and several Louisiana state law claims. Specifically, the complaint alleges that the Defendants maliciously investigated and conspired to prosecute McLin in retaliation for McLin's critical Facebook comments.

The Council Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), arguing that they were entitled to qualified immunity. The district court granted the motion and dismissed McLin's § 1983 First and Fourth Amendment claims against the Council Defendants. The Officer Defendants also moved to dismiss the complaint on the grounds of qualified immunity. The district court granted the Officer Defendants' motion as to McLin's First and Fourteenth Amendment claims and McLin's Fourth Amendment claim asserting an unconstitutional seizure. However, the district court denied the motion as to McLin's Fourth Amendment claim asserting an unconstitutional search. The Officer Defendants appealed the district court's partial denial of their motion to dismiss. We found that the complaint failed to allege the issuance of a search warrant and remanded for further proceedings, including an opportunity for McLin to amend his complaint. McLin v. Ard , 611 Fed.Appx. 806, 808–10 (5th Cir. 2015) (unpublished).

After remand, McLin filed an amended complaint. The Officer Defendants again moved to dismiss. On February 5, 2016, the district court granted the Officer Defendants' motion to dismiss, and entered final judgment for all the Defendants on all claims.

McLin appealed. He argues that that district court erred in dismissing his First and Fourth Amendment § 1983 claims against the Defendants.

III.

We review de novo the district court's grant of a motion to dismiss. Loupe v. O'Bannon , 824 F.3d 534, 536 (5th Cir. 2016) (citing Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Phillips v. City of Dallas , 781 F.3d 772, 776 (5th Cir. 2015) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In reviewing the complaint, we "draw all inferences in favor of the nonmoving party, and view all facts and inferences in the light most favorable to the nonmoving party." Club Retro, L.L.C. v. Hilton , 568 F.3d 181, 194 (5th Cir. 2009). Legal conclusions, however, are not entitled to an assumption of truth and must be supported by factual allegations. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Thus, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). When the motion to dismiss raises the defense of qualified immunity, the plaintiff "must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm ... alleged and that defeat a qualified immunity defense with equal specificity." Zapata v. Melson , 750 F.3d 481, 485 (5th Cir. 2014) (quoting Backe v. LeBlanc , 691 F.3d 645, 648 (5th Cir. 2012) ).

"The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal." Morgan v. Swanson , 659 F.3d 359, 370 (5th Cir. 2011) (en banc). To defeat a claim of qualified-immunity, the plaintiff has the burden to demonstrate the inapplicability of the defense. Atteberry v. Nocona Gen. Hosp. , 430 F.3d 245, 253 (5th Cir. 2005). The plaintiff must show "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Whitley v. Hanna , 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd , 563 U.S. 731,...