Case: 21-30210 Document: 00516646912 Page: 1 Date Filed: 02/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 15, 2023
No. 21-30210 Lyle W. Cayce
Clerk
Andrea Armstrong, Executrix of the Estate
of Glenn Ford,
Plaintiff—Appellant,
versus
Don Ashley; Gary Alderman; Gary Pittman; Everett T.
Rushing; Billy Lockwood; Frank Datcher; Glynn
Mitchell; Rodney Price; the City of Shreveport; Caddo
Parish District Attorney James Stewart; the Estate of
George McCormick,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CV-544
Before Jones, Southwick, and Oldham, Circuit Judges.
Edith H. Jones, Circuit Judge:
Isadore Rozeman was shot and killed in his jewelry shop in 1983, and
Glenn Ford was sentenced to death for the crime. Thirty years later,
Louisiana vacated Ford’s conviction because new evidence identified the real
murderer. After his release from prison, Ford filed this § 1983 suit seeking
damages from police officers, prosecutors, and the local government for
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suppressing, fabricating, and destroying evidence. Ford died shortly
thereafter, leaving Armstrong as the executrix of his estate. In 2021, the
district court dismissed Armstrong’s amended complaint in its entirety based
on Fed. R. Civ. P. 12(b)(6) as to some defendants and 12(c) as to others.
The district court correctly dismissed nearly all of the claims, including a
constitutional malicious prosecution claim, which, at the time suit was filed,
was not cognizable in the Fifth Circuit. See Castellano v. Fragozo, 352 F.3d
939, 953–54 (5th Cir. 2003) (en banc). But this year, the Supreme Court held
that such claims do in fact emanate from the Fourth Amendment. See
Thompson v. Clark,
142 S. Ct. 1332, 1338 (2022). Nevertheless, the district
court properly dismissed the constitutional malicious prosecution claim for
the same reasons it dismissed Armstrong’s Louisiana malicious prosecution
claim.
Accordingly, we AFFIRM.
I. Background
Ford was quickly arrested and charged with Rozeman’s murder. He
was convicted of capital murder, and his conviction and sentence were
affirmed on direct appeal. See State v. Ford, 489 So. 2d 1250, 1257 (La. 1986).
In 1992, Ford sought state post-conviction relief on the grounds that
his counsel was ineffective, exculpatory evidence was suppressed, and he was
actually innocent. The Louisiana Supreme Court denied relief. Ford next
filed a federal habeas corpus petition in 2012. See Ford v. Cain, No. 5:12-cv-
00350 (W.D. La. filed Feb. 4, 2012).
While that petition was pending, the State moved to vacate Ford’s
conviction and sentence based on “credible evidence” that “Ford was
neither present at, nor a participant in, the robbery and murder of Isadore
Rozeman.” Ford was released from prison on March 11, 2014. In a joint
motion to dismiss his federal habeas petition, Ford explained that state filings
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“indicated that an individual named Jake Robinson confessed to an informant
for the Caddo Parish Sheriff’s Office that he—not Mr. Ford—shot and killed
Isadore Rozeman.” Ford v. Cain, No. 5:12-cv-00350, ECF. No. 62 (W.D. La.
Mar. 14, 2014).
Later that same year, Ford filed a state court petition seeking
compensation under La. Rev. Stat. 15:572.8 for his wrongful conviction.
See State v. Ford, 193 So. 3d 1242 (La. App. 2 Cir. 2016). The state court
denied relief because Ford could not prove “factual innocence,” that he did
not “commit any crime based upon the same set of facts used in his original
conviction.” La. Rev. Stat. 15:572.8(B). The court found that Ford,
though not the triggerman, was intimately involved with Rozeman’s robbery
and murder.
Specifically, there was “overwhelming evidence of Ford’s knowledge
of and involvement in the criminal activity that day and night: his
participation in selling the stolen property from the robbery; his acting as a
lookout; meeting with Jake Robinson and Henry Robinson before and after
the crime; and his attempts to procure buyers for the probable murder
weapon.” Ford, 193 So. 3d at 1254. Because he “failed to disprove that he
committed the crimes of possession of stolen goods, accessory after the
fact[,] and being a principal to the armed robbery,” Ford was denied
compensation. 1
Id.
1 Two concurring judges noted that based on Ford’s involvement with the armed
robbery leading to Rozeman’s murder, Ford could likely have been convicted for felony
murder under Louisiana law as it stood in 1983, which was punishable by life without parole.
What this means is that Ford arguably committed second degree murder
arising out of the facts of this case. Had he actually been convicted of that
crime, in a petit jury trial conducted in accordance with the Sixth
Amendment to the United States Constitution, Ford would have never
been released from prison.
3
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While his compensation case was pending, Ford filed this lawsuit in
March 2015. Ford died three months later, and the executrix of his estate,
Andrea Armstrong, was substituted. Eleven defendants named in the
Complaint are parties to this appeal. Armstrong does not appeal the district
court’s dismissal of other defendants. Eight of the appellee–defendants,
collectively the “Law Enforcement Defendants,” are current or former
Shreveport Police officers. 2 The ninth appellee is the estate of George
McCormick, Caddo Parish’s former coroner. The final two appellees are the
City of Shreveport and current Caddo Parish District Attorney James
Stewart. Armstrong alleged that the Law Enforcement Defendants
suppressed or destroyed exculpatory evidence, such as investigative reports
corroborating Ford’s story and implicating other suspects, and fabricated
testimony implicating Ford. Armstrong also asserted Monell 3 claims against
Shreveport and the Caddo Parish DA 4 based on unconstitutional
investigative practices.
The Caddo Parish DA and McCormick’s estate filed Rule 12(b)(6)
motions. Granting both motions, the district court found that Armstrong
failed to establish an official policy or custom of the DA’s office as required
for Monell liability, and the claims against McCormick were barred by
absolute immunity.
Ford, 193 So. 3d at 1258 (Drew, J., concurring in the Opinion on Rehearing Grant); accord
id. at 1256–57 (Brown, C.J., concurring in the Opinion on Rehearing Grant).
2
Those appellants are Ashley, Alderman, Pittman, Rushing, Lockwood, Datcher,
Mitchell, and Price.
3
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694,
98 S. Ct. 2018, 2037 (1978).
4
“Louisiana law does not permit a district attorney’s office to be sued in its own
name.” Hudson v. City of New Orleans, 174 F.3d 677, 680 (5th Cir. 1999). Thus, when
attempting to sue a Louisiana DA’s office under Monell, the current DA, rather than the
office, is the proper defendant.
Id. Any former DA’s actions at the time of Ford’s
prosecution are imputed to the current DA for purposes of Monell.
4
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The Law Enforcement Defendants and Shreveport answered the
Complaint on December 3, 2015. The Law Enforcement Defendants then
filed a separate Rule 12(b)(6) motion, which the court denied as untimely.
The Law Enforcement Defendants’ appeal of this order was dismissed for
lack of jurisdiction. Armstrong v. Ashley, 918 F.3d 419, 423 (5th Cir. 2019).
The Law Enforcement Defendants and Shreveport then moved for
judgment on the pleadings under Rule 12(c) in April 2019. 5 The district court
ordered Armstrong to file a Rule 7(a) reply. 6 After Armstrong did so, the
Law Enforcement Defendants and Shreveport re-urged their Rule 12(c)
motions. The district court granted the Rule 12(c) motions in part on April 1,
2021. 7
The district found that Armstrong had not plausibly pled Monell
claims against Shreveport because she did not identify a particular
policymaker or explain how the City was made aware of its employees’
alleged misconduct. The court also held that Armstrong’s claims against the
Law Enforcement Defendants failed because Armstrong did not plausibly
allege any individual officer’s violation of Ford’s constitutional rights.
Armstrong timely appealed.
5
Because the district court denied the Law Enforcement Defendants’
Rule 12(b)(6) motion on procedural rather than substantive grounds, the district court was
free to consider the adequacy of the pleadings afresh upon a procedurally proper Rule 12(c)
motion. See Armstrong, 918 F.3d at 423.
6
Rule 7(a) lists the only seven pleadings that are allowed. The seventh is “a reply
to an answer,” “if the court orders one.” Fed. R. Civ. P. 7(a). When ordering the reply
here, the district court instructed Armstrong to address specifically the defendants’
qualified immunity defenses.
7
The district court denied the Rule 12(c) motions insofar as they required the court
to decide claims of respondeat superior liability and indemnification against Shreveport
under Louisiana law. The district court entered partial final judgment under Rule 54(b),
and dismissed the indemnification claim against Shreveport without prejudice to
reinstating it if its judgment is reversed on this appeal.
5
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II. Standard of Review
This court reviews the grant of Rule 12(b)(6) and Rule 12(c) motions
de novo. Gentilello v. Rege, 627 F.3d 540, 543 (5th Cir. 2010). In conducting
that review, the court accepts all well-pled facts as true, drawing “all
reasonable inferences in favor of the nonmoving party.” Harmon v. City of
Arlington, Texas,
16 F.4th 1159, 1162–63 (5th Cir. 2021) (quoting Morgan v.
Swanson,
659 F.3d 359, 370 (5th Cir. 2011) (en banc)). But the court does not
“presume true a number of categories of statements, including legal
conclusions; mere labels; threadbare recitals of the elements of a cause of
action; conclusory statements; and naked assertions devoid of further factual
enhancement.”
Id.
III. Discussion
There are two groups of defendants. The first includes the Law
Enforcement Defendants and the coroner, and the second consists of the
local entities and the District Attorney facing allegations of Monell liability.
We discuss first the Law Enforcement Defendants and coroner, then
questions of Monell liability, and then Armstrong’s constitutional and
Louisiana malicious prosecution claims, and last, Armstrong’s additional
federal and state claims.
a. The Law Enforcement Defendants
Qualified immunity protects the Law Enforcement Defendants so
long as their individual conduct did not violate clearly established
constitutional rights. See Harmon, 16 F.4th at 1163. When a defendant
asserts qualified immunity, the burden is on the plaintiff to plead facts that
show why immunity is inapplicable. See Waganfeald v. Gusman,
674 F.3d
475, 483 (5th Cir. 2012). Armstrong’s pleadings of conclusory statements,
naked assertions, and threadbare recitals fail to plausibly show violations by
these defendants of Ford’s clearly established constitutional rights.
6
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i. Due process claims
Armstrong alleges that the Law Enforcement Defendants suppressed
thirteen exculpatory police reports. 8 Armstrong describes each report in
some detail in her amended complaint and Rule 7(a) response. But other
than providing ample descriptions of their contents, Armstrong’s assertions
about constitutional violations surrounding the reports are formulaic. A
pleading’s factual allegations “must be enough to raise a right to relief above
the speculative level on the assumption that all the allegations in the
complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct.
1955, 1965 (2007) (citation omitted). But conclusory assertions, including
“conclusory allegation[s] of agreement at some unidentified point,” do not
qualify as well-pled factual allegations.
Id. at 557,
127 S. Ct. at 1966.
Moreover, well-pled facts that are “merely consistent with” an entitlement
to relief, that is, equally suggestive of legal and illegal conduct, do not suffice.
Id. The complaint must allege facts “plausibly suggesting” illegal conduct
such that the allegations are no longer in “neutral territory.” Id.; see also
Ashcroft v. Iqbal,
556 U.S. 662, 678,
129 S. Ct. 1937, 1950 (2009) (“Where a
complaint pleads facts that are merely consistent with a defendant’s liability,
it stops short of the line between possibility and plausibility of entitlement to
relief.”) (quotation omitted)).
8
The “suppressed” reports consisted of a report suggesting Mr. Rozeman was
killed after 2:30pm; a report documenting a conversation between one of the defendants
and a witness who said he saw a “black man” that was not Ford near Rozeman’s shop at
the time of the murder; several reports identifying alternate suspects; a report documenting
interviews with children; a report documenting interviews with witnesses Norma Roach
and Jean Whatley; a report documenting the defendants’ interviews with children; two
reports documenting an interview and photo line-up with witness Michael Thornton; a
report documenting another witness’s photo identification attempts; a report describing
Jake and Henry Robinson as “the two prime suspects”; and another report with additional
information on Jake and Henry Robinson.
7
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The first of the thirteen allegedly “suppressed” reports described
Rozeman’s murder as occurring late in the day, a time for which Armstrong
had an alibi. Armstrong asserts that the Law Enforcement Defendants
“knowingly and deliberately failed to provide these reports to Mr. Ford, his
defense attorneys, or prosecutors,” and that Ford would have used the
reports to impeach witnesses. This language is found throughout
Armstrong’s complaint and Rule 7(a) Reply and is repeated for all of her
claims of “suppression.” Additionally, for every report but the first,
Armstrong includes language accusing all or a subset of the Law Enforcement
Defendants of “communicating” with each other about “the existence of
this information and the problem it posed for their plan to implicate
Mr. Ford.”
The district court correctly found that these conclusory allegations of
suppression do not pass muster under governing law. A pleading that only
contains “labels and conclusions” and “a formulaic recitation of the
elements of a cause of action” does not meet the standards of Rule 8(a)(2).
Iqbal, 556 U.S. at 678,
129 S. Ct. at 1949 (citing Twombly,
550 U.S. at 555,
127 S. Ct. at 1959). Armstrong’s pleadings consist almost entirely of such
formulaic recitations. She could have identified each witness Ford would
have impeached with the reports, which testimony the jury likely would have
discredited, and which defendant was responsible for suppressing each
report. But based upon nothing more than Armstrong’s barebones recitals,
these ill-pled claims of suppression by the named defendants are factually
insufficient.
Armstrong’s only non-conclusory factual allegation of suppression is
that Ford and his counsel did not receive the reports during Ford’s trial. But
this fact is fatal to Armstrong’s claim, because it is just as consistent with
Brady violations solely accomplished by prosecutors as it is with police
8
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suppression. 9 See Twombly, 550 U.S. at 554, 127 S Ct. at 1964 (holding an
antitrust complaint did not plausibly state a claim because it was just as
consistent with (lawful) parallel conduct as with (unlawful) agreement in
restraint of trade). Armstrong’s allegations do not distinguish the
perpetrators.
Armstrong argues that “this Court has held that allegations far less
detailed than Plaintiff’s suffice to state a due process claim in wrongful
conviction cases.” To the contrary, the cases she cites illustrate the greater
specificity that attends successful suppression claims. For example, in Burge
v. St. Tammany Parish, 187 F.3d 452 (5th Cir. 1999), a wrongfully convicted
suspect substantiated a Brady claim against a specific police officer by, among
other things, presenting testimony from a fellow officer that the defendant
had deliberately hidden exculpatory evidence. See
id. at 461; see also Brown v.
Miller,
519 F.3d 231, 237 (5th Cir. 2008) (finding sufficiently specific
allegations that a lab technician concealed the exculpatory results of blood
tests); Good v. Curtis,
601 F.3d 393, 396 (5th Cir. 2010) (holding a fabrication
claim adequate which detailed that defendant “repeatedly altered the light
settings on the camera with each picture in an effort to make Good’s
photograph better match the ‘dark tan’ skin tone of the suspect in the police
sketch”).
Armstrong also argues that because she alleges the suppression of
numerous items of evidence, less detail should be required as to the particular
mechanics by which each item was suppressed. Armstrong principally cites
9
“The Supreme Court held in Brady v. Maryland that a criminal prosecutor’s
failure to disclose exculpatory evidence to a criminal defendant violates a defendant’s right
to a fair trial. A police officer’s deliberate concealment of exculpatory evidence violates
this same right, and can give rise to liability under § 1983.” Brown v. Miller, 519 F.3d 231,
237–38 (5th Cir. 2008) (citing Brady v. Maryland,
373 U.S. 83, 87,
83 S. Ct. 1194, 1196–97
(1963) and Geter v. Fortenberry,
849 F.2d 1550, 1559 (5th Cir. 1988)).
9
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Wearry v. Cain, 577 U.S. 385,
136 S. Ct. 1002 (2016), which faulted the lower
court’s resolution of a Brady claim for “evaluat[ing] the materiality of each
piece of evidence in isolation rather than cumulatively.”
Id. at 394. The
Supreme Court’s statement is binding but inapposite, because the critical
issue here is not the materiality of the reports, but why Ford’s counsel did
not receive the reports before trial. Without pleading details about how and
by whom each of the reports was suppressed, Armstrong cannot rely on the
numerosity of the reports (irrespective of their materiality) to cure those
deficiencies and seek damages.
ii. Fabricated evidence claims
Armstrong alleges that two of the Law Enforcement Defendants,
Ashley and Alderman, fabricated evidence by obtaining false statements
incriminating Ford from Marvella Brown, Donnie Thomas, and Chandra
Nash.
The Marvella Brown Statement is the most substantial of
Armstrong’s fabrication allegations. Armstrong alleges that “Defendants
Ashley and Alderman fed information about the murder to Ms. Brown in
order to frame Mr. Ford for the crime.” In this allegedly fabricated
statement:
Ms. Brown said that Mr. Ford had arrived at her apartment
around noon on the day of the Rozeman murder and left with
the Robinsons, only to return with a sack containing jewelry. In
this fabricated statement, Mr. Ford carried a .22 pistol and Jake
Robinson had a .38 revolver.
Armstrong then alleges that this statement was used against Ford at his trial.
Moreover, Armstrong alleges that “Marvella Brown later acknowledged that
Defendants Ashley and Alderman had fabricated aspects of this statement”;
“[i]n May 1984, Marvella Brown recanted her statement to Defendants
Ashley and Alderman”; and “Ms. Brown’s recantation was documented in
10
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a police report dated May 6, 1984.”
Brown’s alleged “recantation” is a factual assertion that Ashley and
Alderman fabricated this statement. Yet the Amended Complaint and Reply
provide no details about the alleged “recantation,” other than that it
happened, that it involved “aspects” of her statement, and was documented
in a police report. No doubt that is because the details of the recantation are
fatal to Armstrong’s fabrication claim. The police report notes that Brown
visited Alderman and claimed that “she had made a mistake” about Jake
Robinson being at her house on the day of the murder. 10 But Brown did not
discuss Ford, nor does the report suggest that she recanted the statements
that (1) Ford had returned with a sack of jewelry, (2) Ford arrived at her
apartment around noon on the day of the murder and left with the Robinsons,
and (3) Ford carried a .22 pistol. If fabrication occurred, Armstrong does not
allege how it was material or harmful to Ford’s case.
Viewed in the context of the May 6, 1984, police report, Armstrong’s
assertion that Ashley and Alderman fabricated Brown’s testimony does not
undermine her statements about Ford and is conclusory as to the officers’
unconstitutional conduct against Ford. Because the allegations do not
“plausibly suggest” that fabrication actually occurred as to the incrimination
of Ford, the district court properly dismissed this claim. Twombly, 550 U.S.
at 557,
127 S. Ct. at 1966.
10
This police report was attached to the Law Enforcement Defendants’ Rule 12(c)
motion as an exhibit. Because this report is central to the allegations in the Complaint and
Reply, this court may consider it. See Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th
Cir. 2003) (when ruling on a Rule 12 motion, a court may consider “documents that are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim”). This is not
a case like Peña v. City of Rio Grande City, where the plaintiff’s “complaint expressly
reject[ed] those elements of the police report that conflict[ed] with her account.”
879 F.3d
613, 620 n.9 (5th Cir. 2018).
11
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Regarding Donnie Thomas, Armstrong’s allegations are as follows:
Donnie Thomas had been arrested by Defendant Pittman in
connection with the possession of some jewelry which had been
stolen from Mr. Rozeman’s shop the month before he was
killed.
At some point after Defendant Pittman arrested Donnie
Thomas and prior to February 2, when Defendants Ashley and
Alderman spoke with Thomas, Defendants Pittman, Ashley
and Alderman communicated together and came up with a plan
to use Thomas and his connection to Rozeman in order to
fabricate evidence to implicate Mr. Ford in the Rozeman
murder.
Defendants Ashley and Alderman then spoke with Thomas,
and claimed that Thomas gave a statement to them that
implicated Mr. Ford in Rozeman’s murder.
This statement, in a similar manner to the purported statement
from Marvella Brown, was fed to Mr. Thomas by Defendants
Ashley and Alderman to frame Mr. Ford. And in a similar
manner as they did with the Brown statement, Defendants
suppressed the fabrication of the Thomas statement.
These allegations are devoid of supporting factual detail that could render
them plausible. Armstrong does not explain how the statement implicated
Ford, or why she believes it to be fabricated, or how the statement was used
against Ford. The district court properly dismissed this claim because it lacks
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 677,
129 S. Ct. at 1949.
Armstrong’s allegation that Chandra Nash’s statement was largely
fabricated is barebones. She alleges:
[B]ecause the report [discussing Chandra Nash’s statement]
was suppressed, one or more of Defendants Ashley, Alderman,
Price, Mitchell, Datcher, Lockwood, Pittman, and Rushing
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were able to coerce or otherwise convince Chandra Lisa Nash
to change her story, fabricating a false statement from her that
purported to identify Mr. Ford as being near the scene of the
crime close in time to the murder, which was used against
Mr. Ford at his criminal trial.
Armstrong does not identify which of the eight Law Enforcement Defendants
fabricated Nash’s statement and does not provide any factual detail plausibly
suggesting that Nash’s statement was in fact fabricated. Based on her failure
to name a perpetrator and the conclusory allegation of fabrication, the district
court properly dismissed this claim.
iii. Fingerprint evidence
Armstrong also alleges that Sgt. Lockwood, the Law Enforcement
Defendant who obtained and analyzed the relevant fingerprint evidence,
destroyed exculpatory fingerprint evidence, fabricated incriminatory
fingerprint evidence, and also suppressed evidence that other suspects
shared the “whorl” pattern print found on the bag.
A Due Process Clause claim for destruction of evidence (or failure to
preserve evidence) requires a showing that evidence was destroyed and that
the government official acted in bad faith. See Arizona v. Youngblood,
488 U.S. 51, 58,
109 S. Ct. 333, 337 (1988) (holding that “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of
law”); United States v. Gibson,
963 F.2d 708, 711 (5th Cir. 1992) (“The
destruction of evidence alone does not constitute a due process violation; the
defendant must also show bad faith on the part of the government officials.”).
Although Armstrong makes conclusory references to Lockwood’s
“destruction of evidence,” her factual allegations concern a failure to
preserve evidence, rather than destruction. Specifically, Armstrong alleges
that Lockwood “fail[ed] to take a photograph of the fingerprint he
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supposedly developed,” did “not properly preserv[e] the paper bag as
evidence,” “failed to document and preserve where the print was allegedly
found on the paper bag,” and used an improper “method . . . to process the
bag for prints.” And Armstrong’s only allegation of bad faith is that “[t]his
destruction of evidence was done in bad faith by Defendant Lockwood
because he was not interested in pursuing a legitimate investigation designed
to reveal the truth, which would have exculpated Mr. Ford.”
Because Armstrong provides no facts supporting her conclusory
allegation of bad faith, which, as an allegation of subjective intent, need not
be accepted as true, her “destruction” claim against Lockwood is
insufficiently pled. Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1164 n.2
(5th Cir. 2021) (citing Iqbal,
556 U.S. at 678,
129 S. Ct. at 1949). And
Armstrong cites no authority suggesting that a plaintiff can state a claim for
“destruction” of evidence by merely pointing to potentially useful evidence,
claiming it was improperly preserved, and then alleging bad faith without
factual support. 11 Instead, the thrust of the Court’s reasoning in Youngblood
is that courts should weed out such claims because of the difficulty of
“imposing on the police an undifferentiated and absolute duty to retain and
to preserve all material that might be of conceivable evidentiary significance
in a particular prosecution.”
488 U.S. at 58,
109 S. Ct. at 337.
Armstrong’s fabrication allegations against Lockwood consist of the
11
Armstrong argues that because “Lockwood would have known the fingerprint
was exculpatory, . . . a bad faith allegation is not required.” This rule conflicts with
Youngblood, and neither of Armstrong’s cited cases is apposite. California v. Trombetta,
467 U.S. 479,
104 S. Ct. 2528 (1984), was decided before Youngblood and, regardless,
announces no such rule. See
id. at 488–89. United States v. Swenson,
894 F.3d 677 (5th Cir.
2018), simply announced the normal rule for Brady violations involving the withholding or
suppressing of evidence.
Id. at 683. It did not address claims for failure to preserve
evidence.
14
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following:
Because Defendant Lockwood had deliberately destroyed the
underlying forensic evidence, . . . he was free to fabricate false
fingerprint evidence against Mr. Ford, because there was no
remaining physical evidence that could contradict him. Thus,
Defendant Lockwood fabricated false evidence against
Mr. Ford by claiming that he had found, processed and
observed a latent fingerprint on the paper bag that had a whorl
pattern that implicated Mr. Ford. In fact, Defendant
Lockwood later admitted that he had not seen the center of the
fingerprint, making any attempt to classify the fingerprint as a
whorl pattern and to link it to Mr. Ford on that basis totally
baseless. Instead, Defendant Lockwood simply made up this
piece of supposed evidence in order to wrongly implicate
Mr. Ford.
Armstrong alleges that Lockwood “claim[ed]” to have found a print that
implicated Ford, and “simply made up this piece of supposed evidence.”
Armstrong’s failure to allege how or where Lockwood made this “claim” is
fatal. See Twombly, 550 U.S. at 556,
127 S. Ct. at 1965 (claim must present
“enough factual matter (taken as true) to suggest” an entitlement to relief).
To the extent that Armstrong’s claim refers to Lockwood’s testimony at
trial, it is barred by absolute immunity. See Mowbray v. Cameron Cnty., Tex.,
274 F.3d 269, 277 (5th Cir. 2001) (“[W]itnesses are entitled to absolute
immunity against § 1983 suits based on their testimony in a criminal trial.”).
15
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Finally, Armstrong alleges that:
Defendants suppressed exculpatory evidence that any whorl
pattern fingerprint on the paper bag, as claimed by Defendant
Lockwood, likely came from another source. Whorl patterns
are found on approximately 35% of people. One or more of
Defendants Ashley, Alderman, Price, Mitchell, Datcher,
Pittman, Lockwood, and Rushing were aware that three other
suspects had whorl pattern fingerprints, but knowingly and
deliberately failed to provide this information to Mr. Ford, his
defense attorneys, or prosecutors in advance of or during
Mr. Ford’s criminal trial. This suppression was especially
detrimental to Mr. Ford because the State argued at trial that
no other suspect had whorl-patterned fingerprints.
This allegation suffers from the same problem as the suppression
allegations previously discussed. Armstrong’s factual allegations, taken as
true, are equally consistent with prosecutorial Brady violations as with police
suppression. Armstrong’s account thus “stays in neutral territory” and
cannot satisfy Rule 8’s requirements. Twombly, 550 U.S. at 557,
127 S. Ct. at
1966.
Armstrong’s allegation also suffers from the distinct problem of group
pleading: she simply faults the eight Law Enforcement Defendants as a group
without factual material suggesting that any particular defendant suppressed
evidence. Armstrong’s allegation is independently insufficient for that
reason since a § 1983 plaintiff “must plead that each Government-official
defendant, though the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676,
129 S. Ct. at 1948; cf. Southland Sec.
Corp. v. INSpire Ins. Solutions, Inc.,
365 F.3d 353, 365 (5th Cir. 2004) (“[W]e
do not construe allegations contained in the Complaint against the
‘defendants’ as a group as properly imputable to any particular individual
defendant unless the connection between the individual defendant and the
[illegal conduct] is specifically pled.”). The district court thus properly
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dismissed claims relating to the fingerprint evidence.
iv. Claims against the coroner
George McCormick, as the coroner of Caddo Parish at the time of
trial, testified for the prosecution as an expert witness on forensic pathology.
But McCormick never examined Rozeman’s body, and he was not the
coroner at the time of Rozeman’s murder. Armstrong sued him in his
personal capacity, and after McCormick died, continued the suit against
McCormick’s estate.
Almost all of Armstrong’s allegations concerning McCormick relate
to his testimony. She asserts that he “delivered opinions on two crucial
issues: the gunman’s dominant hand and the victim’s time of death.” She
alleges he fabricated evidence that the murderer was left-handed (which
would implicate Ford but not the Robinson brothers), and that the murder
happened earlier in the day. She also alleges that McCormick “testified that
‘it was his expert opinion that a duffel bag was placed over Mr. Rozeman’s
head to muffle the gunshot and to shield the murderer from blood spatter.’”
(alterations omitted). Finally, she alleges that another forensic pathologist
demonstrated the fabrication of these claims during post-conviction
proceedings. The only other allegation against McCormick is the conclusory
statement that “[h]e was involved in the unlawful investigation and
conviction of Plaintiff.”
Claims against McCormick predicated on his trial testimony are
barred by absolute immunity. See Briscoe v. LaHue, 460 U.S. 325, 326,
103 S. Ct. 1108 (1983) (“witnesses are absolutely immune from damages
liability based on their testimony” and even when “government officials . . .
testify about the performance of their official duties”). Accordingly,
Armstrong’s claims related to McCormick’s testimony were properly
dismissed.
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Armstrong argues in response that because “McCormick fabricated
false testimony before trial,” she seeks to hold him liable for that. She points
out that government officials do not get absolute immunity for “fabricat[ing]
evidence concerning an unsolved crime.” Rehberg v. Paulk, 566 U.S. 356, 370
n.1,
132 S. Ct. 1497, 1507 n.1 (2012) (citing Buckley v. Fitzsimmons,
509 U.S.
259, 272–76,
113 S. Ct. 2606, 2615–17 (1993)). And fabrications are not
immunized just because the fabricator later presents the false evidence in
testimony. See, e.g., Castellano v. Fragozo,
352 F.3d 939, 958 & n.107 (5th Cir.
2003), abrogated in part by Thompson v. Clark,
142 S. Ct. 1332 (2022).
This argument is meritless. Armstrong is correct that pre-trial
evidence of fabrication independent from preparing and delivering testimony
is not immunized by later testimony. For example, in Buckley, the defendant
was not immune when he fabricated evidence and made defamatory public
statements in order to get a grand jury to indict a suspect. 509 U.S. at 262–
64, 113 S. Ct. at 2609–11. And in Castellano (the primary case Armstrong
relies on), the defendant police officer was not immune when he solicited
false witnesses and altered tape recordings that were later submitted into
evidence. 352 F.3d at 943, 958. But Armstrong’s allegations do not approach
that level of specificity. The only well-pled allegations are that McCormick
fabricated “evidence” as to the murderer’s handedness and the victim’s
time of death, the “evidence” being McCormick’s trial testimony. Were
these allegations sufficient to overcome witness immunity, witnesses would
rarely receive immunity from suit. Armstrong cites no authority for such a
radical constriction of Briscoe’s witness immunity. Therefore, the district
court properly dismissed her claims against McCormick.
b. The City of Shreveport
Armstrong asserts a number of claims against the City under
Section 1983. None is sufficiently pled. First, she claims the City “had an
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official policy of pursuing police investigations using unconstitutional
methods, including failing to disclose police reports containing exculpatory
evidence,” coercing witnesses, fabricating and suppressing evidence, and
using unreliable identification methods. Her pleadings allege “a systematic
pattern of withholding of exculpatory information, fabrication of evidence,
coercion, and other illegal tactics, the sum total of which completely
corrupted the investigative process.” The Monell standards for imposing
liability on municipal entities must be satisfied.
To find the City of Shreveport liable under Monell, Armstrong must
identify a policymaker and identify an official city policy that was the moving
force behind the alleged constitutional rights violation. See Rivera v. Houston
Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003); see also Monell,
436 U.S.
at 694,
98 S. Ct. at 2037. An “official policy” means:
1. A policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the municipality's
lawmaking officers or by an official to whom the lawmakers
have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well settled
as to constitute a custom that fairly represents municipal
policy. Actual or constructive knowledge of such custom must
be attributable to the governing body of the municipality or to
an official to whom that body had delegated policy-making
authority. Actions of officers or employees of a municipality
do not render the municipality liable under § 1983 unless they
execute official policy as above defined.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc).
Armstrong does not allege that an officially promulgated policy
instructed police to investigate using unconstitutional methods. See Webster,
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735 F.2d at 841. Therefore, she had to rely on a custom or practice “so
common and well settled as to constitute a custom that fairly represents
municipal policy,” and “[a]ctual or constructive knowledge of such custom
must be attributable” to the policymaker. Id.; see also Davidson v. City of
Stafford, Tex.,
848 F.3d 384, 396 (5th Cir. 2017) (“A pattern requires
similarity, specificity, and sufficiently numerous prior incidents.”). As
quoted above, Armstrong pled custom or practice and pattern in a conclusory
fashion without meaningful factual content. Although Armstrong also alleges
that “persons with final policymaking authority for the Shreveport Police
Department participated personally in the misconduct described in this
Complaint,” this, too, is barren of factual support and wholly conclusory. See
Davidson,
848 F.3d at 395 (discussing liability when “a policymaker performs
the specific act that forms the basis of the § 1983 claim”).
Second, Armstrong argues that Shreveport failed to adequately train,
supervise, and discipline its officers. To survive dismissal on this claim,
Armstrong must plead “that (1) the supervisor either failed to supervise or
train the subordinate officer; (2) a causal link exists between the failure to
train or supervise and the violation of the plaintiff’s rights, and (3) the failure
to train or supervise amounts to deliberate indifference.” Davidson, 848 F.3d
at 397. A plaintiff may show deliberate indifference by demonstrating either
that (a) the “municipality had notice of a pattern of similar violations,” or
(b) “the constitutional violation was the highly predictable consequence of a
particular failure to train.”
Id.
Armstrong asserts that Shreveport police officers received subpar
training across the board, but this general conclusion is not enough to imply
or state that policymakers acted with deliberate indifference. As already
discussed, she fails to allege a pattern of similar violations, let alone
Shreveport’s notice of such a pattern, except in wholly conclusory terms.
And she does not point to a “particular failure to train” that could render a
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constitutional violation highly predictable. Id. This Monell claim based on
failure to train, supervise, and discipline fails for lack of factual allegations
that support a finding of deliberate indifference. 12
c. Caddo Parish DA James Stewart
In the alternative, Armstrong argues that Monell liability may be
imposed on prosecutors in the Caddo Parish District Attorney’s Office
because they allegedly suppressed exculpatory evidence pursuant to a policy
or custom. James Stewart, the current Caddo Parish District Attorney,
stands in as the official defendant.
This claim fails for reasons similar to those that stymie Armstrong’s
Monell claim against Shreveport. Armstrong’s allegations of a formal policy
and direct policymaker involvement are again entirely conclusory.
[T]he District Attorney, through its final policymakers,
maintained a policy, custom, or pattern and practice of
condoning corruption, that included widespread prosecutorial
misconduct, including by failing to supervise, discipline, and
train its prosecutors. . . .
Further, upon information and belief, persons with final
policymaking authority for the District Attorney participated
personally in the prosecution of Plaintiff.
Armstrong’s allegations of an unlawful custom or practice include the
same formulaic allegations made against Shreveport:
Despite actual and constructive notice, the District Attorney
had a custom, pattern and practice of promoting, facilitating,
12
The district court also dismissed Armstrong’s state-law claim that the City of
Shreveport and the Parish of Caddo are vicariously liable under the theory of respondeat
superior. This claim fails if there is no underlying tortious conduct. 12 William E.
Crawford, Louisiana Civil Law Treatise: Tort Law § 9.11D (2000).
Here, there was none, as this opinion explains.
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or condoning improper, illegal, and suppression of exculpatory
and impeachment evidence, and failed to adequately supervise,
discipline and train its prosecutors.
With this claim, however, Armstrong lists nine cases over a 24-year period as
examples where exculpatory evidence was suppressed by the District
Attorney’s practices. But nine constitutional violations over a 24-year period
and thousands of prosecutions are hardly sufficient to show a municipal
custom. See Connick v. Thompson, 563 U.S. 51, 62,
131 S. Ct. 1350, 1360
(2011) (four Brady violations over a ten-year period insufficient to apprise a
District Attorney of the need for additional Brady training). A more
fundamental problem, noted by the district court, is the mischaracterization
of these nine cases, none of which found a Brady violation. See, e.g., State v.
Palmer,
344 So. 2d 964, 968 (La. 1977) (finding that the latent fingerprint
evidence withheld “was not favorable or exculpatory evidence to which the
defense was entitled”). 13 This proffered litany cannot constitute a plausible
allegation that the Caddo Parish DA’s office had a custom of suppressing
exculpatory evidence. See Davidson,
848 F.3d at 396.
As with her Monell claim against Shreveport, Armstrong also alleges
failure of the DA’s office to adequately train, supervise, and discipline. Just
as nine inapposite cases cannot show an unconstitutional custom or pattern,
they are insufficient to place the District Attorney on notice as a means to
show deliberate indifference. The district court thus properly dismissed
13
Armstrong faults the district court for “looking beyond the pleadings.” But
doing so was proper because the cases were “referred to in the plaintiff’s complaint and
are central to the plaintiff’s claim.” Scanlan, 343 F.3d at 536. Armstrong also argues that
these cases should have put the District Attorney on notice even though the courts found
no Brady violations. That is incorrect. In Palmer, for example, the District Attorney’s
office had no obligation to disclose immaterial, non-exculpatory evidence, so that case
would have done nothing to alert him to any problem.
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Armstrong’s Monell claims against DA Stewart. See id. at 397.
d. Malicious Prosecution
The Supreme Court recently held that litigants may bring a Fourth
Amendment malicious prosecution claim under § 1983. Thompson v. Clark,
142 S. Ct. 1332, 1337 (2022). The Court identified three minimum elements
to common law malicious prosecution claims, “(i) the suit or proceeding was
‘instituted without any probable cause’; (ii) the ‘motive in instituting’ the
suit ‘was malicious,’ which was often defined in this context as without
probable cause and for a purpose other than bringing the defendant to justice;
and (iii) the prosecution” terminated in favor of the accused.
Id. at 1338
(citing T. Cooley, Law of Torts 181 (1880)). The Supreme Court did
not, however, lay out a comprehensive list of the elements for a Fourth
Amendment malicious prosecution claim, and largely left the question of
elements to the lower courts. Thus, the Court declined to decide “whether
a plaintiff bringing a Fourth Amendment claim under § 1983 for malicious
prosecution must establish malice (or some other mens rea) in addition to the
absence of probable cause.” Id. at 1338 n.3.
Nonetheless, two elements are required under Thompson. The first is
that “[b]ecause a [Fourth Amendment malicious prosecution] claim is
housed in the Fourth Amendment, the plaintiff also has to prove that the
malicious prosecution resulted in a seizure of the plaintiff.” Id. at 1337 n.2;
see, e.g., Jones v. York, 34 F.4th 550, 564 n.8 (7th Cir. 2022). The second is
that the traditional favorable termination element of a common law malicious
prosecution claim “does not require the plaintiff to show that the criminal
prosecution ended with some affirmative indication of innocence.”
Thompson,
142 S. Ct. at 1341.
The circuit courts have divided on identifying the elements of a
Fourth Amendment malicious prosecution claim. One fundamental question
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in each circuit has been whether all common law malicious prosecution
elements must be met, or whether, in the Fourth Amendment context, malice
is unnecessary given that “[t]he Fourth Amendment inquiry is one of
‘objective reasonableness’ under the circumstances, and subjective concepts
like ‘malice’ and ‘sadism’ have no proper place in that inquiry.” Brooks v.
City of Winston-Salem, N.C., 85 F.3d 178, 184 (4th Cir. 1996) (quoting
Graham v. Connor,
490 U.S. 386, 399,
109 S. Ct. 1865, 1873 n.5 (1989)). See
also Nieves v. McSweeney, 241, F.3d 46, 53 (1st Cir. 2001); Gallo v. City of
Philadelphia,
161 F.3d 217, 223–24 (3d Cir. 1998). Following Thompson, the
circuit split remains in place.
Before this court’s en banc decision in Castellano v. Fragozo, our
circuit had determined that “the elements of the state-law tort of malicious
prosecution and the elements of the constitutional tort of ‘Fourth
Amendment malicious prosecution’ are coextensive.” Gordy v. Burns,
294 F.3d 722, 725 (5th Cir. 2002), abrogated by Castellano v. Fragozo,
352 F.3d
939 (5th Cir. 2003); see, e.g., Castellano,
352 F.3d at 961 (Jones, J.,
concurring). Consequently, plaintiffs in the Fifth Circuit had to prove six
elements to prevail on a constitutionalized malicious prosecution claim.
Gordy,
294 F.3d at 727. The elements included “(1) the commencement or
continuance of an original criminal proceeding; (2) its legal causation by the
present defendant against plaintiff who was defendant in the original
proceeding; (3) its bona fide termination in favor of the present plaintiff;
(4) the absence of probable cause for such proceeding; (5) malice; and
(6) damages.”
Id. 14 Given Thompson’s clear recognition of the constitutional
tort of malicious prosecution, overruling our precedent in Castellano, the rule
14
In Texas, actual innocence was also required. But as discussed, Thompson holds
that no affirmative indication of innocence is necessary to prove a Fourth Amendment
malicious prosecution claim. Thompson, 142 S. Ct. at 1341.
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iterated in Gordy is reinstated and parties asserting a Fourth Amendment
malicious prosecution claim under § 1983 must prove the above elements, in
addition to the threshold element of an unlawful Fourth Amendment
seizure. 15 See Thompson, 142 S. Ct. at 1337 n.2.
But we do not remand for a determination of whether Armstrong’s
constitutional claim is sufficiently pled because the district court considered
and rightly dismissed Armstrong’s Louisiana malicious prosecution claim,
which requires the same six elements as enumerated in Gordy. See Lemoine
v. Wolfe, 168 So. 3d 362, 367 (La. 2015). Both claims fail to meet at least
elements (2) and (5). Because Armstrong has not plausibly alleged that the
defendants suppressed, fabricated, or destroyed evidence, she has not
plausibly alleged that the defendants were the cause of Ford’s prosecution.
Moreover, Armstrong has not plausibly alleged facts showing the malice of
any defendant. Accordingly, both her constitutional and her Louisiana
malicious prosecution claims were properly dismissed.
e. Conspiracy
In addition, Armstrong alleges that “the Law Enforcement
Defendants and McCormick, acting in concert with other co-conspirators,
known and unknown, reached an agreement among themselves to frame
Plaintiff for a crime he did not commit and thereby to deprive him of his
constitutional rights.” In a similar vein, Armstrong’s suppression allegations
often state that the Law Enforcement Defendants all “agreed to suppress”
the various reports. “In order to prevail on a section 1983 conspiracy claim,
a plaintiff must establish (1) the existence of a conspiracy involving state
15
Importantly, because an unlawful seizure is the threshold element, see Thompson,
142 S. Ct. at 1337 n.2, if the prosecution is supported by probable cause on at least one
charge, then a malicious prosecution claim cannot move forward.
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action and (2) a deprivation of civil rights in furtherance of the conspiracy by
a party to the conspiracy.” Pfannstiel v. City of Marion, 918 F.2d 1178, 1187
(5th Cir. 1990). Armstrong’s conspiracy claim was properly dismissed
because she has not plausibly pled any underlying constitutional deprivation
by the defendants. See Shaw v. Villanueva,
918 F.3d 414, 419 (5th Cir. 2019)
(“No deprivation, no § 1983 conspiracy.”).
f. Failure to Intervene
Armstrong also alleges that “one or more of the individual Law
Enforcement Defendants or McCormick stood by without intervening to
prevent the violation of Plaintiff’s constitutional rights, even though they had
the opportunity to do so.” A failure to intervene claim against a police officer
requires that the officer (1) knows that a fellow officer is violating an
individual’s constitutional rights; (2) is present at the scene of the
constitutional violation; (3) has a reasonable opportunity to prevent the
harm; and (4) chooses not to act. Whitley v. Hanna, 726 F.3d 631, 646 (5th
Cir. 2013). The district court correctly found that “the claim lacks detail as
to which of the Defendants did what, whether any Defendant knew of the
misconduct, or who was present at the commission of the misconduct.”
Armstrong’s claim does not reference the specific conduct of any particular
defendant as constituting failure to intervene. The district court properly
dismissed this claim.
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g. Intentional Infliction of Emotional Distress
Armstrong also brought a state-law claim for intentional infliction of
emotional distress. Such a claim requires (1) that the conduct of the
defendant was extreme and outrageous; (2) that the emotional distress
suffered by the plaintiff was severe; and (3) that the defendant desired to
inflict severe emotional distress or knew that severe emotional distress would
be certain or substantially certain to result from his conduct. White v.
Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
Just as Armstrong fails to adequately plead bad faith (for her
destruction-of-evidence claim) or malice (for her malicious-prosecution
claim), she also fails to adequately allege extreme and outrageous conduct.
“The conduct must be so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Id. Armstrong’s
allegations do not go that far. Nor does she allege facts suggesting that the
defendants “desired to inflict severe emotional distress or knew that severe
emotional distress would be certain.”
Id. This claim was properly dismissed.
h. Negligence
Rounding things out, Armstrong brought a traditional negligence
claim. Louisiana uses the typical reasonable-person standard to assess an
individual’s liability for negligence. See Lawrence v. Sanders, 169 So. 3d 790,
795 (La. App. 2 Cir. 2015) (“Duty is defined as the obligation to conform to
the standard of conduct associated with a reasonable person in like
circumstances.”); La. Civ. Code Art. 2315. For the same reasons that
Armstrong did not adequately plead constitutional violations due to the
defendants’ suppression, fabrication, and destruction of evidence, she also
fails to plead sufficient factual matter to show that they violated the standard
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of care of a reasonable officer. 16 The district court thus properly dismissed
this claim.
IV. Conclusion
Accordingly, the district court’s judgment is AFFIRMED.
16
Louisiana’s state qualified immunity statute would also likely stand in the way of
Armstrong’s recovery on her state-law claims. See La. Rev. Stat. § 2798.1(B)
(“Liability shall not be imposed on public entities or their officers or employees based upon
the exercise or performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of their lawful powers
and duties.”); Rombach v. Culpepper, 2021 WL 2944809, at *9 (5th Cir. Jul. 13, 2021)
(unpublished) (in § 1983 and Monell suit, affirming dismissal of pendant state-law claims
based on § 2798.1).
28
