Carter v. Godfrey, et al

* Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
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:*

-- 1 of 4 --

No. 03-30061 c/w 03-30328
-2-
James Carter appeals the district court’s grant of summary
judgment in favor of defendants Jenell Godfrey and John Louis
with respect to the federal and state law claims of malicious
prosecution raised in his 42 U.S.C. § 1983 complaint. Godfrey
and Louis, detectives with the narcotics division of the Kenner,
Louisiana, Police Department, had previously arrested Carter for
obscenity under LA. REV. STAT. ANN. § 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’s award of summary judgment de
novo. Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570,
575 (5th Cir. 2003). In Castellano v. Fragozo, 352 F.3d 939, 945
(5th Cir. 2003), we held that there is no “freestanding
constitutional right to be free from malicious prosecution” and
that a 42 U.S.C. § 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.

-- 2 of 4 --

No. 03-30061 c/w 03-30328
-3-
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

-- 3 of 4 --

No. 03-30061 c/w 03-30328
-4-
court’s ruling. See Walker v. City of Bogalusa, 168 F.3d 237,
239 (5th Cir. 1999).
AFFIRMED.

-- 4 of 4 --