Scribner v. Dillard ( 2005 )

  •                                                          United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                                                                     May 20, 2005
                              FOR THE FIFTH CIRCUIT
                             ______________________            Charles R. Fulbruge III
                                  No. 04-60088
                                MICHAEL SCRIBNER
                            DANNY DILLARD, ETC; ET AL
                        DANNY DILLARD, Individually, and
                             GARY DODDS, Individually
               Appeal from the United States District Court for
                      the Northern District of Mississippi
    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
           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     this opinion should not be published and is not precedent except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.
    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.
           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.
           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).
           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
           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,
    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
    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
         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
           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)).
                Hiltgen v. Sumrall, 
    47 F.3d 695
    , 699 (5th Cir. 1995).
    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
               FED. R. CIV. P. 50(a).
           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.
    7 Morris v
    . Dearborne, 
    181 F.3d 657
    , 673 (5th Cir.
     1999)(quoting Taylor v. Gregg, 
    36 F.3d 453
    , 457 (5th Cir. 1994)).
    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
           Hale v. Fish, 
    899 F.2d 390
    , 401 (5th Cir. 1990) (quoting
     Hand v. Gary, 
    838 F.2d 1420
    , 1427-28 (5th Cir. 1988)).
           Thompson and Wallace of Memphis, Inc. v. Falconwood Corp.,
    100 F.3d 429
    , 435 (5th Cir. 1996).
    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
           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
              Glass Containers Corp. v. Miller Brewing Co., 
    643 F.2d 308
    , 312 (5th Cir. 1981) (quoting Bettes v. Stonewall Insurance
    480 F.2d 92
    , 94 (5th Cir. 1973)).
              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)).
                 Portis v. First Nat'l Bank, 
    34 F.3d 325
    , 332 (5th Cir.
    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
            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)).
    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
                Hodges v. United States, 
    597 F.2d 1014
    , 1018 (5th Cir.
    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.
            Haggerty v. Tex. S. Univ., 
    391 F.3d 653
    , 655-56 (5th Cir.
     2004)(Internal quotation marks and citation omitted).
          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
           Deines v. Tex. Dep't of Protective and Regulatory Servs.,
    164 F.3d 277
    , 279 (5th Cir. 1999).
           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)).
            Deines, 164 F.3d at 279 (quoting Mooney v. Aramco Servs.
    54 F.3d 1207
    , 1216 (5th Cir. 1995)).
           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
           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
           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
            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).
            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
         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.
     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.
    462 U.S. 213
    378 U.S. 108
    393 U.S. 410
               Gates, 462 U.S. at 230.
         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.