Carter vs. Godfrey, (5th Cir. 2004)

Docket Number:03-30061

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED August 17, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 03-30061 Summary Calendar JAMES CARTER, Plaintiff-Appellant, versus JENELL GODFREY; JOHN LOUIS, individually and in their official capacities as Kenner Police officers; THE CITY OF KENNER, Defendants-Appellees, Consolidated with No. 03-30328 JAMES CARTER, Plaintiff-Appellee, versus JENELL GODFREY; JOHN LUIS, Individually and in their Official Capacities as Kenner Police Officers; THE CITY OF KENNER, Defendants-Appellants. Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 02-CV-79-M Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: * James Carter appeals the district court§ 1983 complaint. Godfrey and Louis, detectives with the narcotics division of the Kenner, Louisiana, Police Department, had previously arrested Carter for obscenity under L A . R EV . S TAT . A NN . § 14:106 (West 2004), but Carter was acquitted at trial. Carter has abandoned his remaining claims against Godfrey, Louis, and the City of Kenner.

See Brinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987).

We review a district court§ 1983 malicious prosecution claim must be based on a specific constitutional violation, rather than a violation of state law. Carter concedes that, in light of Castellano , he could not bring a malicious prosecution claim under 42 U.S.C. § 1983 but argues that the district court’s grant of summary judgment was nevertheless erroneous because he raised meritorious claims that he was arrested without probable cause under the Fourth Amendment and that Godfrey and Lewis violated his right to due process at trial.

Carter does not challenge the district court’s finding that, because he conceded he was in his yard with his pants open, there was probable cause to arrest him. Accordingly, Carter has shown no error with respect to the district court’s dismissal of his Fourth Amendment claim or his state law claim of malicious prosecution, which requires a showing of no probable cause. See Mangieri v. Clifton , 29 F.3d 1012, 1016 (5th Cir. 1994); Vance v. Nunnery , 137 F.3d 270, 274 (5th Cir. 1998); Miller v. East Baton Rouge Parish Sheriff’s Department , 511 So. 2d 446 (La. 1987). In addition, although Carter’s version of the events on the day in question differ from the officers’ versions, his assertion that their accounts in the police report and at trial were intentionally false is conclusional and wholly unsupported by evidence in the record, and therefore, fails to create a genuine issue of material fact. See Orthopedic & Sports Injury Clinic v. Wang Lab., Inc. , 922 F.2d 220, 225 (5th Cir. 1991); see also Koch v. Puckett , 907 F.2d 524, 531 (5th Cir. 1990). The lack of evidence of false statements or perjury was an additional basis for the district court’s grant of summary judgment. Accordingly, the district court’s grant of summary judgment and dismissal of Carter’s civil rights complaint are AFFIRMED.

In a consolidated appeal, Godfrey, Louis, and the City of Kenner appeal the district court’s denial of their motion for attorneys’ fees. The district court’s denial of this motion is AFFIRMED as we find no abuse of discretion in the district court’s ruling. See Walker v. City of Bogalusa , 168 F.3d 237, 239 (5th Cir. 1999). AFFIRMED.

No. 03-30061 c/w 03-30328