* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

Nos. 95-20587 & 95-20770

(Summary Calendar)

_________________________

MARY ELIZABETH CONN,

Plaintiff-Appellant,

versus

HARRIS COUNTY TEXAS;

JACK ABERCIA, Harris County Constable,

in his individual and official capacity;

FRED REYNA, Harris County Deputy Constable,

in his individual and official capacity;

THE WACKENHUT CORPORATION;

ALLAN C. STERNER, in his individual and official capacity,

Defendants-Appellees.

____________________________________________________

Appeal from United States District Court

for the Southern District of Texas

(CA-H-94-1180)

__________________________________________________

August 30, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM: *

Mary Elizabet h Co nn argues that the district court erred in granting summary judgment in

favor of the defendants and assessing costs against her. For the following reasons, we affirm.1 Conn’s anger arose from her perception that defense attorney s received second class

treatment as compared with assistant district attorneys, law students, and law cle rks entering the

court.

2 FACTS AND DISCUSSION

Conn, a practicing attorney in Harris County, set off t he alarm as she passed through the

courthouse metal detector. Conn became outraged when the attendant, Allan Sterner, suggested that

her metal chain had triggered the alarm. She argued loudly that her necklace was gold and had never

sounded the alarm during her previous trips to the court, and that the metal detector needed to be

reset. 1 When Conn failed to lower her voice and discontinue her use of profanity, she was arrested

fo r diso rderly conduct and resisting arrest. Conn filed a 42 U.S.C. § 1983 suit alleging several

com plaints against Harris County, Sheriff Johnny Klevenhagen, Constable Jack Abercia, Deputy

Constable Fred Reyna, Allan Sterner, and Sterner’s employer (Wackenhut Corporati on). The

defendants filed for summary judgment.

First, the district court determined that Conn’s allegations did not support her claims of

invasion of privacy, libel and slander, intentional inflict ion of emotional distress, and negligence and

gross negligence and that there was no private right of action under the Texas Constitution.

Second, regarding the a ssault -bat tery, the illegal arrest, the false imprisonment, and the

excessive force claim s against Sterner, the district court concluded that Conn’s uncontroverted

allegations indicated that Sterner was entitled to summary judgment. The court found that, because

there was probable cause to arrest Conn for disorderly conduct, the claims of abuse of process and

malicious prosecution also fail. The court further determined, assuming arguendo that Sterner was

a state actor, that none of the allegations supported a finding of a constitutional violation against him.2 Conn voluntarily dismissed her claims against Klevenhagen and Abercia.

3 He did not arrest or restrain Conn, and his signing of a complaint does not give rise to liabilit y here.

Finally, concerning the claims against Reyna, the distr ict court determined that the statute

pursuant to which

Conn was arrested, T E X

. P ENAL C ODE A NN

. § 42.01 (West 1994), was

constitutional because it incorporated the fighting words doctri ne. S ee Chaplinsky v. New

Hampshire , 315 U.S. 568, 572-73 (1942). The court held that Reyna had probable cause to arrest

Conn under the statute, particularly since Conn directed her verbal abuse toward Sterner, who was

not a police o ffic e r. Further, the court concluded that Reyna’s use of force was not objectively

unreasonable. See Johnson v. Morel , 876 F.2d 477, 480 (5th Cir. 1989) (en banc). 2

The district court granted su mmary judgment in favor of all the defendants. We have

reviewed the record and agree with the reasons set forth by the district court. Additionally, we find

that Conn waived her right to contest the assessment of costs against her. S ee L O CAL R ULES OF T HE

U NITED S TATES D I STRICT C OURT F OR T HE S OUTHERN D ISTRICT O F T EXAS 4B (West 1995) (allowing

only five days to challenge costs).

CONCLUSION

For the reasons established by the district court in Conn v. Harris County

, No. CA-H-94-1180

(S.D. Tex. July 17, and Sept. 6, 1995), we AFFIRM the summary judgments granted in favor of the

defendants.