Scribner v. Dillard, 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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
May 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 04-60088
______________________
MICHAEL SCRIBNER
Plaintiff-Appellee
versus
DANNY DILLARD, ETC; ET AL
Defendants
DANNY DILLARD, Individually, and
GARY DODDS, Individually
Defendants-Appellants
___________________________________________________
Appeal from the United States District Court for
the Northern District of Mississippi
(01-CV-325)
___________________________________________________
Before WIENER, BARKSDALE and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
The plaintiff brought this suit for damages under 42 U.S.C. §
1983 against two deputy sheriffs alleging, among other things, that
the defendants violated his constitutional rights by arresting him
without probable cause. A jury found in favor of the plaintiff; the

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1 The defendants have not argued on appeal that the jury
verdict in favor of Scribner should be reversed because it
implicitly invalidated Scribner’s criminal conviction in
violation of Heck v. Humphrey, 512 U.S. 477 (1994). The
defendants have therefore waived any defense they may have had
under Heck. Adams v. Unione Mediterranea Di Sicurta, 364 F.3d
646, 653 (5th Cir. 2004)(“Issues not raised or inadequately
briefed on appeal are waived”); see also Okoro v. Bohman, 164
F.3d 1059, 1061 (7th Cir. 1999)(Heck defense is not
jurisdictional and may be waived).
2
defendants appeal from the district court’s denial of their post-
verdict motion for judgment as a matter of law (JMOL). Finding no
error, we AFFIRM.
I.
The plaintiff, Michael Scribner, was arrested for conspiring to
help a friend, Jim Garrison, plant drugs in Garrison’s estranged
wife’s car. Following his arrest, Scribner entered a nolo contendre
plea to a reduced charge of misdemeanor trespassing. Under
Mississippi Code § 99-15-26, Scribner requested that the court
withhold acceptance of his plea. The court agreed and subsequently,
on Scribner’s motion, dismissed the charges and expunged his record.1
Scribner filed a complaint against the defendants, Lee County
deputy sheriffs Danny Dillard and Gary Dodds, stating claims for
wrongful arrest, malicious prosecution and abuse of process under 42
U.S.C. § 1983. The district court granted summary judgment to the
defendants on the claim of malicious prosecution. The claims for
wrongful arrest and abuse of process were tried before a jury.

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3
Testimony at trial established that Scribner was formerly
employed as a Lee County deputy sheriff and worked with both of the
defendants. At some point, the relationship between the three men
deteriorated and Scribner came to believe that the defendants hated
him.
In the summer of 1999, the sheriff’s office learned that drugs
had been planted in Barbara Garrison’s car. The defendants began
investigating the crime and shortly thereafter arrested Jim
Garrison, Scribner’s business associate and friend.
On June 29, 1999, Deputy Goddard was called to the scene of an
attempted suicide by Ricky Mayhall. When he arrived, Mayhall was
drunk and crying. According to Goddard’s testimony at trial,
Mayhall stated that he was afraid because he, Jim Garrison and a man
named Mike had been involved in a plot to plant drugs in someone’s
car. Defendant Dillard subsequently arrived on the scene.
According to his testimony, Mayhall stated that he had planted drugs
in Barbara Garrison’s car for Jim Garrison and a police officer
named Mike.
Defendant Dillard took Mayhall to see the Assistant District
Attorney, Dennis Ferris, where, according to Ferris’ testimony,
Mayhall again implicated himself, Garrison and a man named Mike in
the conspiracy. Thereafter, the defendants took a statement from
Mayhall. Defendant Dillard drafted the statement and Mayhall, who
can neither read nor write, signed it. According to the statement,

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4
Mayhall purchased drugs and delivered them to Garrison. “Officer
Mike” then drove Mayhall and Garrison to the location where Barbara
Garrison had parked her car and Mayhall put the drugs in the car.
Mayhall testified that due to his intoxication he does not
remember speaking to either the defendants or Ferris on June 29th
and has no memory of giving a statement that evening. The police
held Mayhall overnight. Jail records indicate that Mayhall was both
very drunk and very emotional that night.
The following day, the defendants again questioned Mayhall.
Mayhall testified that during that second interview, the defendants
got angry when he failed to implicate Scribner. According to
Mayhall, they said “we know [Scribner’s] dirty and we’re going to
prove it one way or another.” Mayhall testified that the defendants
continued to question him until: “I finally decided the only way I
was going to get out of that cell was to go ahead and tell them
[Scribner] had something . . . to do with it.” The defendants wrote
up another statement, substantially similar to the first statement
but identifying “officer Mike” as Scribner, and Mayhall signed it.
Ferris and Dodds presented Mayhall’s statements to the grand
jury. Neither Ferris nor Dodds remember mentioning Mayhall’s
suicide attempt, intoxication or illiteracy to the grand jury, nor
did they recall informing the grand jury of the animosity between
the defendants and Scribner.
Testimony at trial established that Mayhall was well known

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2 Primrose Operating Co. v. National American Ins. Co., 382
F.3d 546, 552 (5th Cir. 2004)(citing Pineda v. United Parcel
Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004)).
3 Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995).
5
amongst the defendants’ co-workers. Those officers generally
thought that Mayhall was unreliable and easily coerced. The
defendants, however, testified that they had no knowledge regarding
Mayhall’s reputation for truthfulness.
At the close of evidence, the district court granted the
defendants’ motion for JMOL on the abuse of process claim but denied
the defendants’ motion for JMOL on the wrongful arrest claim. The
jury returned a verdict in favor of Scribner on that claim and
awarded $120,000 in damages. Following the jury verdict, the
defendants renewed their motion for JMOL and moved for a new trial.
The district court denied the motion and the defendants timely
appealed.
II.
The defendants argue that the district court erred by denying
their motion for JMOL. This court reviews a district court’s denial
of a JMOL de novo, applying the same standards as the district
court.2 "A motion for [JMOL] . . . in an action tried by jury is [,
in essence,] a challenge to the legal sufficiency of the evidence
supporting the jury's verdict."3 This court will uphold a jury
verdict unless "there is no legally sufficient evidentiary basis for

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4 FED. R. CIV. P. 50(a).
5 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
6 Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (citing
Wheeler v. Cosden Oil & Chem. Co., 744 F.2d 1131, 1132 (5th Cir.
1984)).
7 Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir.
1999)(quoting Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir. 1994)).
6
a reasonable jury to find" as it did.4 “[I]n entertaining a motion
for [JMOL], the court should review all of the evidence in the
record. In doing so, however, the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.”5
The defendants argue that they are entitled to JMOL because
there was no legally sufficient evidence for the jury to find that
they withheld or misrepresented evidence to the grand jury and,
therefore, the grand jury’s indictment insulates them from
liability. “It is well settled that if facts supporting an arrest
are placed before an independent intermediary such as a magistrate
or grand jury, the intermediary's decision breaks the chain of
causation for false arrest, insulating the initiating party.”6 The
chain of causation is broken, however, “only where all the facts are
presented to the grand jury or magistrate and the malicious motive
of the officer does not lead him to withhold any relevant
information."7 “Any misdirection of the magistrate or the grand jury

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8 Hale v. Fish, 899 F.2d 390, 401 (5th Cir. 1990) (quoting
Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988)).
9 Thompson and Wallace of Memphis, Inc. v. Falconwood Corp.,
100 F.3d 429, 435 (5th Cir. 1996).
7
by omission or commission perpetuates the taint on the original
official behavior.”8
Scribner claims that the defendants are not entitled to JMOL.
He argues that the defendants waived their ability to raise the
legal theory they now espouse by failing to raise the insulating
effect of the grand jury indictment as an affirmative defense in
their answer, failing to raise it in the pre-trial order and failing
to request jury instructions consistent with that legal theory. The
district court agreed with Scribner, concluding, among other things,
that the defendants had waived any argument concerning the grand
jury indictment by failing to raise it prior to the verdict.
The defendants raised the insulating effect of the grand jury
indictment for the first time in their Rule 50(b) post-trial motion
for JMOL. Scribner did not, however, object to the defendants’
claim on the grounds that they failed to raise it in their Rule
50(a) pre-verdict motion for JMOL. Our precedent establishes that
such an objection is required to preserve the matter of forfeiture
for appellate review.9 Thus, if the defendants had merely failed to
raise the grand jury indictment in their Rule 50(a) motion, we would
reach the merits of their claim. The defendants’ waiver in this

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10 Glass Containers Corp. v. Miller Brewing Co., 643 F.2d
308, 312 (5th Cir. 1981) (quoting Bettes v. Stonewall Insurance
Company, 480 F.2d 92, 94 (5th Cir. 1973)).
11 Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d
595, 604 (5th Cir. 2000) (quoting McGehee v. Certainteed Corp.,
101 F.3d 1078, 1080 (5th Cir. 1996)).
12 Portis v. First Nat'l Bank, 34 F.3d 325, 332 (5th Cir.
1994).
8
case, however, goes far beyond a mere failure to raise the legal
theory in a pre-verdict motion for JMOL. The defendants never
argued at any time prior to the verdict that the intervening act of
the grand jury insulated them from liability. “[A] litigant cannot
strategically lie behind the log until after the trial and receipt
of evidence, argument, and charge to the jury before raising an
issue not found in the pleadings nor included in the pre-trial order
and then raise it when it is too late for his opponent to do
anything about it. The manifest prejudice of such tactics would
make a shambles of the efficacy of pretrial orders and a fair
trial."10
At the very least, to preserve this issue, the defendants had
to raise it in the pretrial order. “It is a well-settled ruled that
a joint pretrial order signed by both parties supersedes all
pleadings and governs the issues and evidence to be presented at
trial."11 Moreover, “[a]n affirmative duty exists at the pretrial
conference for each party to allege clearly all factual and legal
bases upon which the party wishes to litigate the case.”12 The

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13 Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir.
2005) (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th
Cir. 1998) (en banc)).
9
pretrial order in the present case does not include any mention of
causation nor any suggestion that the intervening act of the grand
jury insulated the defendants from liability. There is no possible
reading of the order that would put Scribner on notice that the
defendants intended to argue that the grand jury indictment relieved
them of liability for Scribner’s arrest.
We reject the defendants’ argument that their claim of
qualified immunity was sufficient to inform the court, and Scribner,
of the defense they now assert. Qualified immunity is separate and
distinct from a defense based upon the intervening act of a neutral
intermediary. “The qualified immunity analysis is a two-step
inquiry. First, a court must decide whether the plaintiffs'
allegations, if true, establish a violation of a clearly established
right. . . . Second, if the plaintiffs have alleged a violation, the
court must decide whether the conduct was objectively reasonable in
light of clearly established law at the time of the incident.”13 A
defense based upon the intervening actions of a neutral
intermediary, on the other hand, challenges causation and is not
related either to whether the plaintiff alleged the violation of a
clearly established right nor the reasonableness of the defendants’
actions. Accordingly, the defendants’ claim of qualified immunity
did not put Scribner on notice that they intended to claim that the

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14 Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.
1979).
10
grand jury’s indictment insulated them from liability.
We also reject the defendants’ suggestion that it “would have
bordered on frivolous” for them to argue that the grand jury’s
indictment insulated them from liability prior to the verdict
because the Scribner’s theory of the case, up to that point, was
that the defendants coerced false evidence from Mayhall. According
to the defendants, the insulating effect of the grand jury
indictment became relevant only after Scribner changed his trial
strategy and began asserting that the defendants should not have
believed Mayhall, even if his statements were wholly voluntary. The
defendants, however, noted Scribner’s new theory in their pre-
verdict motion for JMOL, filed after Scribner rested his case, and
in the jury charge conference. Yet the defendants did not, at
either time, seek to amend the pre-trial order to include the legal
theory that they now assert nor did they seek to add a jury
instruction concerning the intervening act of the grand jury. Thus,
the defendants had the opportunity to raise the insulating effect of
the grand jury indictment prior to the verdict but chose not to.
Accordingly, “any injury resulting from our [decision] . . . is a
direct result of the [defendants’] failure to properly present
[their] case.”14
Because the defendants cannot now assert that the grand jury

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15 Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th Cir.
2004)(Internal quotation marks and citation omitted).
11
indictment broke the chain of causation between their actions and
Scribner’s arrest, we review their post-verdict motion for JMOL only
to the extent that they argue that there was insufficient evidence
to support the jury’s conclusion that the defendants lacked probable
cause to arrest the plaintiff. “Probable cause exists when the
totality of the facts and circumstances within a police officer's
knowledge at the moment of arrest are sufficient for a reasonable
person to conclude that the suspect had committed or was committing
an offense."15
After examining the record, we conclude that there was a
legally sufficient evidentiary basis to support the jury’s verdict.
Specifically, Mayhall was taken into custody after trying to commit
suicide and witnesses described him as drunk, sobbing, rambling, and
scared. It was in this state that Mayhall allegedly gave a
statement inculpating Scribner. The following day, according to
Mayhall’s testimony, he had to be coached and/or intimidated into
again inculpating Scribner. Thus, there was a legally sufficient
evidentiary basis for the jury to find that Mayhall’s statements
would not have led a reasonable officer to conclude that Scribner
had committed a crime. Accordingly, we affirm the district court’s
denial of the defendants’ motion for JMOL.
III.

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16 Deines v. Tex. Dep't of Protective and Regulatory Servs.,
164 F.3d 277, 279 (5th Cir. 1999).
17 General Universal Sys. v. Lee, 379 F.3d 131, 153(5th Cir.
2004)(quoting United States v. Daniels, 281 F.3d 168, 183 (5th
Cir. 2002)).
18 Deines, 164 F.3d at 279 (quoting Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1216 (5th Cir. 1995)).
19 Id.
12
The defendants argue that the they are entitled to a new trial
because the district court erroneously instructed the jury on
probable cause. The district court has broad discretion in
formulating the jury charge, and this court reviews instructions
with deference.16 The standard of review applied to a claim that a
jury instruction was erroneous is “whether the court's charge, as a
whole, is a correct statement of the law and whether it clearly
instructs jurors as to the principles of the law applicable to the
factual issues confronting them."17 The defendants must show that
the instruction creates a "substantial and ineradicable doubt
whether the jury [was] properly guided in its deliberations."18
Finally, this court will not reverse even an erroneous instruction
if, upon review of the "entire record, the challenged instruction
could not have affected the outcome of the case."19
The district court’s charge to the jury included the following:
You’re instructed that in order for an officer to justify an
arrest on the grounds that he had probable cause for an arrest,
the officer must show that he had a reasonable basis for
believing that the person was guilty of a crime. When the

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20 We note that Mayhall was not merely an informant but was
an alleged coconspirator in the criminal enterprise in which he
implicated Scribner. Because the defendants argue only that the
district court misstated the standard for judging the reliability
of statements obtained from an informant and never suggested to
the district court or to this court that Mayhall’s statements
should be evaluated using any alternate criteria, the question of
whether Mayhall’s statements should be treated as those of an
ordinary informant is not before us. See United States v. Fagan,
821 F.2d 1002, 1015 n.9 (5th Cir. 1987) (arguments not briefed
are deemed waived); FED. R. CIV. P. 51 (objections to jury
instructions must state distinctly the matter objected to and the
grounds of the objection).
21 See Mendenhall v. Riser, 213 F.3d 226, 235 n.18 (5th Cir.
2000) (“Our case law, following the Supreme Court, makes clear
that probable cause to search is no different than probable cause
13
officer bases his belief of guilt of a crime on the word of an
informant, such as Ricky Mayhall, the officer must have a basis
for believing that the informant is trustworthy and reliable
taken in conjunction with all other evidence available to the
officer.
You’re instructed that in determining whether or not there was
probable cause for the arrest of the plaintiff, you are to
determine whether or not any reasonable law enforcement officer
confronted with the same information and circumstances with
which the defendants were confronted would have believed that
there was a probability that the plaintiff had committed a
crime.
According to the defendants, “the standard contained [in the
jury instruction] applied to a determination of information
credibility when officers seek a search warrant” and “probable cause
involving search warrants differs from that involving a warrant for
arrest.” The defendants are incorrect, however, as the standards
for judging the credibility of the information provided by an
informant20 are the same for both search warrants and arrest
warrants.21

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to arrest.”) The case relied upon by the defendants, United
States v. Rojas, 671 F.2d 159, 165 (5th Cir. 1982), merely holds
that the factual basis necessary to establish probable cause to
arrest may be different from the factual basis necessary to
establish probable cause to search; it does not hold that there
is any difference in the legal definition of “probable cause” in
the context of search and arrest warrants.
22 462 U.S. 213 (1983).
23 378 U.S. 108 (1964).
24 393 U.S. 410 (1969).
25 Gates, 462 U.S. at 230.
14
The defendants further claim that Illinois v. Gates22 “made it
clear that informant-based probable cause did not require officers
to support their affidavit for a search warrant through evidence of
an informant’s trustworthiness and reliability.” In Gates, the
Supreme Court rejected the rigid two-prong test derived from its
previous decisions in Aguilar v. Texas23 and Spinelli v. United
States24 in favor of evaluating the reliability of an informant’s
statement based upon the totality of the circumstances. The Supreme
Court stated: “We agree with the Illinois Supreme Court that an
informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are
all highly relevant in determining the value of his report. We do
not agree, however, that these elements should be understood as
entirely separate and independent requirements to be rigidly exacted
in every case . . . .”25 Thus, the Supreme Court held that an
anonymous tip, which was amply corroborated, could provide probable
cause to search.

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15
The jury instruction challenged by the defendants in the
present case does not violate Gates. Rather, the district court
properly instructed the jury to consider whether, in light of all of
the evidence available to them, the defendants had a basis for
believing that Mayhall, whose uncorroborated statements they relied
upon to establish probable cause, was reliable and trustworthy.
This is entirely consistent with the totality of the circumstances
test adopted in Gates.
For the foregoing reasons, the decision of the district court
is AFFIRMED.

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