* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31021

Summary Calendar

EMMETT SPOONER

Plaintiff - Appellant

v.

MICHAEL JACKSON; JERRY MITCHELL; MIKE

EDMUNDSON; STATE OF LOUISIANA; LOUISIANA

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana, Baton Rouge

USDC No. 3:00-CV-590

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Emmett Spooner, pro se and in forma pauperis, appeals the summary

judgments dismissing his claims against the appellees under 42 U.S.C. § 1983.

For the reasons that follow, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2007

Charles R. Fulbruge III

Clerk
No. 06-31021

2

I.

Spooner, who admittedly is not a lawyer but claims to be a civil rights

activist and investigator, agreed to assist two former clients of appellee Michael

Jackson, an attorney and Louisiana state representative, in locating Jackson.

The two former clients apparently had been involved in an accident, had

retained Jackson to represent them, and Jackson had allowed their cause of

action to prescribe. They filed a complaint with the Louisiana Attorney

Disciplinary Board. Spooner made several calls to Jackson’s law and legislative

offices about the matter, and he also spoke with Jackson’s attorney who was

representing Jackson before the Attorney Disciplinary Board.

On July 1, 2000, Jackson made a complaint to the Louisiana State Police

that Spooner was representing two of Jackson’s former clients,that Spooner was

not licensed to practice law, that Spooner had demanded that Jackson pay

$5,000 to close the case, and that Spooner had threatened to take the matter to

the Louisiana Attorney Disciplinary Board if payment was not made

immediately. Appellee Jerry Mitchell, a Louisiana State Police Detective,

investigated the complaint. Jackson made arrangements for Spooner and the

former clients to come to his office on July 7, 2000.

On July 7, the State Police provided Jackson with $5,000 in cash. Later

that day, Jackson met with the two former clients and Spooner in his office.

Following the meeting, Spooner was arrested for extortion and unauthorized

practice of law. Spooner was in possession of $1,000 of the $5,000 provided to

Jackson by the State Police, and one of Jackson’s former clients had the

remaining $4,000 in her possession. Spooner was transported to the Louisiana

State Police Detective Office and later transported to the parish prison for

booking. Appellee Michael Edmundson, a Louisiana State Trooper, delivered

information to the media, which he obtained from Mitchell, concerning Spooner’s

arrest.
No. 06-31021

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On July 10, 2000, Spooner filed a petition for damages and injunctive relief

in state court under 42 U.S.C. § 1983. Spooner alleged that Jackson violated his

Fourth and Fourteenth Amendment rights by causing his arrest without

sufficient probable cause, that Jackson conspired with and aided Detective

Mitchell in making a false arrest of Spooner, and that Jackson made “libalist”

and misleading statements to the news media regarding Spooner. He alleged

that Detective Mitchell falsely imprisoned him by holding him at the detective’s

office for over two hours and ignoring his request to be transferred to the parish

jail; that Detective Mitchell seized business files from him which were not

relevant to the subject matter of his arrest and denied him access to those files;

that Detective Mitchell falsely arrested him; that Detective Mitchell conspired

with Jackson to falsely arrest him; and that Detective Mitchell attempted to get

Jackson’s two former clients to make false statements regarding their

relationship with Spooner. He alleged that the State of Louisiana is vicariously

liable because it agreed to indemnify Detective Mitchell (presumably for any

damages awarded against Detective Mitchell), because the Department of Public

Safety and Corrections failed to properly train Detective Mitchell, and because

the Department of Public Safety and Corrections related false and misleading

information to the news media. He alleged that Trooper Edmundson violated his

rights under “Louisiana Tort Law, Federal Torts Claims Act,” and theLouisiana

Constitution by releasing false information about him to the news media.

On August 2, 2000, the defendants removed the case to federal court. The

case was stayed pending resolution of state and federal criminal charges against

Spooner. Spooner was not indicted or prosecuted for the charges of extortion and

unauthorized practice of law for which he was arrested in July 2000. Spooner

was convicted on three counts of mail fraud and three counts of wire fraud in

federal court. He was sentenced to serve 33 months in prison, followed by three
No. 06-31021

1

In December 2003, this court affirmed Spooner’s convictions, but vacated the sentence

and remanded for resentencing. On remand, the district court imposed the same sentence, and

this court affirmed in January 2005.

4

years of supervised release, and was ordered to pay restitution of $29,198.1 After

the federal criminal charges were concluded, the case was reopened. 

In December 2005, the district court granted the motion for summary

judgment filed by the State of Louisiana, the Department of Public Safety and

Corrections, Detective Mitchell, and Trooper Edmundson. The court held that

the defendants were entitled to summary judgment on Spooner’s claims of false

arrest and false imprisonment because Detective Mitchell had probable cause to

arrest Spooner based on the information provided in Jackson’s complaint and

Detective Mitchell’s investigation. The court granted summary judgment on the

conspiracy claim because Detective Mitchell had probable cause to arrest

Spooner and because his conspiracy allegations were conclusory. The court held

that Spooner’s detention at the State Police office prior to being taken to the

parish prison did not rise to the level of a constitutional violation. The court

held that the seizure of Spooner’s property that he possessed at the time of his

arrest did not amountto a violation of Spooner’s Fourth Amendment rights. The

court concluded that there was no evidence to support Spooner’s allegation that

Detective Mitchell attempted to elicit false statements from Jackson’s former

clients. The court held that the Department of Public Safety and Trooper

Edmundson were entitled to summary judgment on Spooner’s defamation claims

because Spooner failed to produce any evidence that Edmundson disseminated

false information to the media regarding Spooner. Finally, the court held that

the State and the Louisiana Department of Public Safety (collectively,“the State

defendants”) were immune from suit under the Eleventh Amendment.

In September 2006,the district court granted summary judgment in favor

of Jackson. The court held that Jackson was entitled to summary judgment on
No. 06-31021

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the conspiracy claim because Spooner’s allegation that Jackson and Mitchell

conspired to have him falsely arrested was conclusory and because Detective

Mitchell had probable cause to arrest Spooner. It granted Jackson summary

judgment on the defamation claim because Spooner failed to produce any

evidence that Jackson disseminated false information regarding Spooner to the

media or to the police. Spooner appealed.

II.

On appeal, Spooner contends that the district court erred by granting

summary judgmentfor Mitchell, Edmundson, and the State defendants; that the

district court erred by not allowing him to take the deposition of Detective

Mitchell; that the district court erred by striking his cross-motion for summary

judgment; and that the State defendants waived Eleventh Amendment

immunity when they removed the case from state court. We now turn to address

each of these contentions.

A.

In his challenge to the summary judgment for Mitchell, Edmundson, and

the State defendants on his false arrest and conspiracy claims, Spooner contends

that genuine issues of material fact exist as to whether Detective Mitchell had

information and evidence to support his arrest. He argues that the defendants

knew or should have known of his position as a civil rights activist and

investigator for a Louisiana civil rights organization and, therefore, a reasonable

investigator would have attempted to contact him and Jackson’s two former

clients before deciding to make an arrest. He contends further that a state judge

refused to sign a warrant for his arrest and that is why Mitchell and Jackson

conspired to entrap him and insisted on his presence at Jackson’s office where

he was arrested. He maintains that Jackson’s refusal to give his two former

clients money without Spooner’s presence is evidence of the conspiracy. 
No. 06-31021

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Our review of the summary judgment evidence persuades us that the

district court correctly granted summary judgment for the defendants. The

initial complaint and post-arrest report prepared by Detective Mitchell reflect

that he received a complaint from a credible source -- Jackson, a lawyer and

state representative -- that Spooner, who is not a lawyer, was purportedly

representing two of Jackson’s former clients and was insisting that Jackson pay

$5,000 to them. Furthermore, Jackson reported that Spooner threatened to take

the matter to the Louisiana Attorney Disciplinary Board unless payment was

made immediately. The information available to Mitchell at the time of

Spooner’s arrest, including the source of the information and how he obtained

it, would warrant belief by a reasonably prudent officer that Spooner was

committing the offenses of extortion and unauthorized practice of law.

Therefore, Detective Mitchell had probable cause to arrest Spooner. There is no

evidence in the record to support Spooner’s contention that a state judge refused

to sign a warrant for his arrest. Accordingly, the defendants were entitled to

summary judgment on the false arrest claim. Because Detective Mitchell had

probable cause to arrest Spooner, and because, as the district court correctly

noted, Spooner’s allegations regarding a conspiracy are conclusory, the

defendants were also entitled to summary judgment on Spooner’s conspiracy

claim.

B.

We now turn to Spooner’s contention that the district court erred by

granting summary judgment without allowing him to take the deposition of

Detective Mitchell. Spooner asserts that Mitchell, if deposed, would have

testified that he was brought into the case by his “boss,” Trooper Landry,

because Jackson wanted to get Spooner arrested due to Spooner’s investigation

of Jackson. He asserts that he would have questioned Mitchell about his failure

to obtain accessible evidence and information prior to the arrest.
No. 06-31021

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The record reflects that on April 13, 2005, the magistrate judge granted

the defendants’ motion to compel Spooner to respond to discovery and ordered

Spooner to reimburse the defendants for $300 in expenses. The order warned

Spooner thatfailure to comply would subject him to the risk of further sanctions.

On May 10, 2005, the defendants filed a motion to enforce compliance with the

April 13, 2005 order and sought a stay of all discovery by Spooner pending his

compliance. On June 21, Spooner filed a notice to take Mitchell’s deposition on

June 28. The defendants moved to quash. They noted that they had previously

provided Spooner with multiple dates that Mitchell was available, and that

Spooner had failed to respond. They also noted that Mitchell would not be

available on June 28 because he would be appearing before a grand jury on a

murder investigation. In response, Spooner cancelled the June 28 deposition

and requested new dates on which Mitchell would be available.

On July 29, 2005, the magistrate judge granted the defendants’ motion to

enforce compliance with the April 13, 2005 order. As a sanction, the court

ordered discovery closed as to Spooner. On October 13, 2005, Spooner moved to

reinstate his right to discovery. He said he had paid $50 of the $300 sanction

imposed by the April 13, 2005 order and proposed to pay the balance in $50

monthly installments. He requested clarification as to whether the order

prevented him from deposing Detective Mitchell. The defendants opposed

reinstatement of Spooner’s right to conduct discovery. Attached to their

memorandum were copies of correspondence to Spooner reflecting that on

December 29, 2004, they offered 13 dates in January 2005 for Mitchell’s

deposition and that on July 6, 2005, they offered six dates in July 2005 for

Mitchell’s deposition. The defendants asserted that Spooner failed to respond

to these letters and two others in which they sought to accommodate Spooner’s

request to depose Mitchell. The magistrate judge denied Spooner’s motion to

reinstate his right to conduct discovery, essentially for the reasons stated in the
No. 06-31021

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defendants’ opposition. Spooner sought review of the magistrate judge’s

decision, and the district court affirmed.

The district court did not err by granting summary judgment without

allowing Spooner to take Mitchell’s deposition. It was not an abuse of discretion

for the district court to conclude that Spooner lost his right to depose Mitchell

as a consequence of his failure to comply with the April 13, 2005 order. The

record reflects that he had a reasonable opportunity to take Mitchell’s

deposition, but failed to respond to the defendants’ offers of available dates for

scheduling the deposition.

C.

Next, Spooner asserts that the district court erred by striking his crossmotion for summary judgment. He contends that it was unfair for the court to

strike his cross-motion on the ground that it was untimely after the court

allowed Jackson to file his motion for summary judgment after the deadline for

filing dispositive motions established in the scheduling order.

Spooner’s contentions are without merit. The court found that Jackson

had demonstrated good cause for filing his motion for summary judgment after

the deadline for filing dispositive motions based on evidence that Jackson’s

counsel did not receive electronic notice of the scheduling order because of a

computer virus. Spooner did not offer any excuse for the untimely filing his

cross-motion for summary judgment.

D.

Finally, Spooner argues that the State of Louisiana and the Department

of Public Safety waived sovereign immunity under the Eleventh Amendment by

removing the case to federal court. The State defendants did not respond to this

contention in their brief. Spooner is correct. See Lapides v. Board of Regents of

the University System of Georgia, 535 U.S. 613 (2002); Meyers v. Texas, 410 F.3d

236 (5th Cir. 2005). 
No. 06-31021

9

Nevertheless, we affirm the summary judgment in favor of the State

defendants on other grounds supported by the summary judgment record.

Spooner alleged that the Department of Public Safety failed properly to train

Detective Mitchell and that the State is vicariously liable for Detective Mitchell’s

actions in falsely arresting him and for Trooper Edmundson’s actions in

disseminating false information to the media about him. Because Detective

Mitchell had probable cause to arrest Spooner and because Spooner failed to

produce any summary judgment evidence that Trooper Edmundson

disseminated false information about him to the media,the district court did not

commit reversible error in granting summary judgmentfor the State defendants

even though the basis for its judgment -- Eleventh Amendment immunity -- was

improper.

III.

For the foregoing reasons, the summary judgments in favor of the

defendants are

AFFIRMED.