Michalik v. Hermann

• Decision Date: 17 August 2005
• Docket Number: No. 03-30780.,03-30780.
• Parties: Michael E. MICHALIK, Jr., Individually and on behalf of the minor child, Hannah E. Michalik; Deborah P. Michalik, his wife, Plaintiffs-Appellees, v. Mike HERMANN, Deputy Sheriff; et al., Defendants, Kevin Guillot; Paul Toye; Mike Hermann, Deputy Sheriff; Harrell Clark; Shennandoah Jones; Eric Levis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.3d 252

Michael E. MICHALIK, Jr., Individually and on behalf of the minor child, Hannah E. Michalik; Deborah P. Michalik, his wife, Plaintiffs-Appellees, v. Mike HERMANN, Deputy Sheriff; et al., Defendants, Kevin Guillot; Paul Toye; Mike Hermann, Deputy Sheriff; Harrell Clark; Shennandoah Jones; Eric Levis, Defendants-Appellants.

No. 03-30780.

United States Court of Appeals, Fifth Circuit.

August 17, 2005.

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James R. Logan, IV (argued), Isaac Harris Soileau, Jr. (argued), Logan & Soileau, New Orleans, LA, for Plaintiffs.

James B. Mullaly, New Orleans, LA, Franz L. Zibilich (argued), Martiny & Caracci, Metairie, LA, for Kevin Guillot and Paul Toye.

Mary Ann Hand (argued), Salvador E. Gutierrez, Jr., Gutierrez & Hand, Chalmette, LA, for Mike Hermann, Harrell Clark and Shennandoah Jones.

Lowell V. Sturgill, Jr. (argued), U.S. Dept. of Justice, Civil Div.-Appellate Staff, Washington, DC, for Eric Levis.

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

Before REAVLEY, JOLLY and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This § 1983 and Bivens Fourth Amendment related case has its origins in the search of the home of Michael and Deborah Michalik ("the Michaliks"). The search was conducted under a warrant issued as part of an investigation into a New Orleans drug operation, involving several local, state, and federal officers. The search failed to uncover any evidence of illegal activity, and the Michaliks brought suit against those involved in the procurement and execution of the warrant. The Michaliks contend that the officers relied on stale information to claim that Mr. Michalik's step-brother stashed drugs at their home.

In the over five years since the complaint was filed, the case has provided an ever-shifting web of claims and defendants. At issue in these consolidated appeals is the district court's denial of qualified immunity to six defendants-appellants on various claims relating to the procurement of the search warrant, the search of the home, and/or the forcible entry of the home. See Michalik v. Hermann, 2003 WL 21805037 (E.D.La. Aug.4, 2003).

We hold that Levis and Toye are entitled to qualified immunity for claims based on the procurement of the warrant because neither prepared, presented, nor signed the application for the search warrant. Accordingly, we REVERSE the district court's denial of qualified immunity as to (1) Levis and Toye on claims relating to the procurement of the warrant and (2) Toye on claims relating to the search of the home. However, we hold that material issues of fact exist as to the conduct of Guillot, Hermann, Clark and Jones in the forcible entry of the home. Accordingly, we DISMISS this interlocutory appeal as to those claims for want of jurisdiction.

I

A

In early 1998, Officer Paul Toye ("Toye") of the New Orleans Police Department and Agent Eric Levis ("Levis") of the federal Drug Enforcement Agency ("DEA")¹ began separate investigations of a drug ring in New Orleans, Louisiana. Toye and Levis combined their efforts, and the investigation broadened to include police authorities in Jefferson, St. Bernard, and St. Tammany Parishes.

In August 1998, the New Orleans Police Department requested wiretaps through the Louisiana State Police. Trooper John Fitzpatrick ("Fitzpatrick") became the case agent for the Louisiana State Police. The wiretaps were concluded in early November 1998. Search warrants were then issued for seventeen houses, and arrest warrants were issued for thirty-three individuals. Fitzpatrick was the sole affiant on the Application for Search Warrant for 406 E. St. Jean Baptiste in Chalmette, Louisiana, the Michaliks' home. An arrest warrant was also issued for Mr. Michalik's step-brother, Gene J. Taglialavore ("Taglialavore"). Taglialavore had resided at 406 E. St. Jean Baptiste from 1989 to 1991, but his permanent address was in Nevada at the time the warrant was issued.

The search warrant was executed by eight to ten officers of various jurisdictions on November 18 at approximately 5:30 a.m. Only four of the executing officers have been explicitly identified by name: Kevin Guillot ("Guillot") of the New Orleans Police Department; and Mike Hermann, Harrell Clark, and Shennandoah Jones, all of the St. Bernard Parish Sheriff's Department (collectively, the "St. Bernard defendants"). The Michaliks were detained for approximately two hours while the house was searched. No drugs or other evidence of illegal activity was found in either the initial search or in a second search conducted with the use of a drug dog.

The Michaliks filed their original complaint in November 1999, alleging that their home was searched unlawfully because the officers relied on stale information to determine that Taglialavore had stashed drugs at 406 E. St. Jean Baptiste. In their original complaint, they sought damages and other relief based on alleged violations of the U.S. Constitution and Louisiana state law against the federal, state, and local law enforcement officers and their respective agencies and governmental entities, including the United States.

Because of the number of parties and claims involved, the procedural posture of this case is exceptionally complicated. We will relate only what is necessary to understand the issues on appeal.

On November 20, 2001, the Michaliks filed their first amended and supplemental complaint, adding a claim under the Federal Tort Claims Act ("FTCA") against the United States, alleging violations of 42 U.S.C. §§ 1985 and 1986.² The United States, along with other named federal defendants, filed a motion to dismiss the Michaliks' amended complaint. The district court dismissed the claim with prejudice because the Michaliks failed to exhaust their administrative remedies before filing, and more than six months had elapsed from the date on which the plaintiffs actually exhausted their administrative remedies. See 28 U.S.C. §§ 2675(a) and 2401(b).

The Michaliks submitted two additional amended complaints, naming federal defendants in their personal capacities and alleging the dual status of Levis as a DEA agent and member of the St. Bernard Parish Sheriff's Department.

B

We now turn to recount the procedural history of this litigation with respect to each defendant-appellant, beginning with Levis. Levis filed no answer to the Michaliks' third amended complaint, but instead filed a motion to dismiss, asserting qualified immunity and the judgment bar provision of the FTCA, 28 U.S.C. § 2676. The district court denied Levis's motion to dismiss and similarly denied Levis's motion to reconsider. On May 27, 2003, Levis filed a motion for summary judgment, again raising qualified immunity and the FTCA judgment bar. The district court denied the motion for summary judgment on August 4. Levis now appeals the district court's order denying him both dismissal on FTCA grounds and qualified immunity on federal law claims relating to the procurement of the warrant.

We next consider Toye and Guillot of the New Orleans Police Department. On January 8, 2003, the district court granted summary judgment on the basis of qualified immunity, dismissing all federal claims against all defendants, including Toye and Guillot. The Michaliks filed a Federal Rule of Civil Procedure 59 motion, arguing that the court's grant of summary judgment was premature in view of ongoing discovery. The district court granted the Michaliks' motion in part, reinstating federal claims against Toye as to the procurement of the search warrant. On May 19, the New Orleans Police defendants filed for summary judgment on the remaining claims. In its August 4 order, the district court dismissed all claims against every named New Orleans Police defendant, except Toye and Guillot. The district court reinstated the federal claims against Guillot, noting that material issues of fact exist as to Guillot's role in the forcible entry of the Michaliks' home. The district court also reinstated claims against Toye regarding the search and forcible entry of the home, as well as the procurement of the search warrant as noted above. Toye and Guillot now appeal the district court's order.

Finally, we turn to the St. Bernard defendants. On December 3, 2003, the St. Bernard defendants filed a motion for summary judgment on the basis of qualified immunity. The district court granted qualified immunity to the St. Bernard defendants on all federal excessive force claims arising out of the search itself, ordering the federal claims dismissed with prejudice. The district court denied the Michaliks' motion for reconsideration, specifically holding that the police action during the search was objectively reasonable. On May 5, 2004, the St. Bernard defendants filed a separate motion for summary judgment to dismiss all remaining state law claims. In its August 4 order, the district court granted summary judgment to the St. Bernard defendants for state law claims arising out of the procurement of the warrant, and also held as a matter of law that the officers' conduct inside the house was not unreasonable under state tort law principles. The district court, however, denied the motion for summary judgment as to Hermann, Clark, and Jones on the federal and state law claims in conjunction with the forcible entry of the Michaliks' home. The St. Bernard defendants now appeal.

To sum up, the six defendants-appellants appeal the denial of qualified immunity for the following claims: (1) federal claims only against Levis for procurement of the warrant; (2) federal and state claims against Toye for procurement of the warrant, search of the home, and forcible entry of the home; (3) federal and state claims against Guillot for forcible entry of the home; (4) federal and state claims against the St. Bernard defendants for forcible entry of the home.³

II

The denial of a motion for summary judgment is generally not a final,...