### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-30196 Summary Calendar

MARIE REED, Plaintiff-Appellant,

versus MIKE EDWARDS, Officer of the Baton Rouge Police Department; CHARLES MONDRICK, Interim Chief of the Baton Rouge Police Department; HEATH SOILEAU, Officer of the Probation and Parole Officer of East Baton Rouge Parish; JAMES M. LEBLANC, Secretary of the Louisiana Department of Corrections; BRIAN BLACHE, Detective of East Baton Rouge Parish Sheriff’s Office; SID GAUTREAUX, East Baton Rouge Parish Sheriff; CHASITY SANFORD, Deputy of the East Baton Rouge Parish Sheriff’s Office, Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Louisiana

No. 3:11-CV-30 U n i te d S ta te s C o u rt o f Ap p ea l s F i ft h C i rc u i t 

### F I L E D August 27, 20 12 Lyle W . Cayce Clerk Case: 12-30196 Document: 00511969920 Page: 1 Date Filed: 08/27/2012No. 12-30196

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: *

I. Marie Reed asserted false-arrest and false-imprisonment claims under 42 U.S.C. § 1983 and various state-law clai m s . She alleged that the defendants, who are law enforcement and probation officers, conspired to bring false charges against her, which resulted in her arres t and extended imprisonment. Defendant s moved to dismiss for failure to state a claim, arguing that Reed’s claims

were time-barred. Th e district court determined that the false-arrest and imprisonment cl ai m s accrued at her bond hearing, which was no later than August 15, 2009; the one-year statute of limitations rendered her January 2011 filing untimely. The court dismissed Reed’s federal claims with prejudice and declined to exercise jurisdiction over the supplemental state-law claims. Reed appeals.

II. Re e d co nte n d s th at her Fourth Amendment claim for unlawful seizure w a s not time-barred, because although the limitations period is governed by state law, Cuadra v. Hous. Indep. Sch. Dist. , 626 F.3d 808, 814 n.7 (5th Cir. 2010), the accrual d at e i s governed by federal law, which dictates that a § 1983 claim

accrues when a “plaintiff knows or has reason to know of the injury which is the basis of the action,.” Lavellee v. L isti , 611 F.2d 1129, 1130-31 (5th Cir. 1980)

Pur sua nt to 5 TH C IR

. R. 47.5 , the court hasdete rm inedthat thi s op inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. 2 Case: 12-30196 Document: 00511969920 Page: 2 Date Filed: 08/27/2012No. 12-30196

(internal citations and quotations omitted). For false-arrest and false-imprisonment claims, the limitations period accrues when the plai ntiff “becomes held pursuant to [legal] processSSwhen, for example, [s]he is bound over by a magistrate or arraigned on charges.” Walla c e v . K a to , 549 U.S. 384, 389-90 (2007) (emphasis omitted). Although the district court found that Reed was detained pursuant to legal process at her bond hearing, she asserts that that hearing did not constitute “legal process,” because the re cord does not reveal whether the hearing included a determination of the legality of her detention. Reed instead asks to file an amended complaint adding further details about the bond hearing and whether it constituted legal process. Our caselaw indirectly addresses this issue and suggests that a bond hearing constitutes legal process und e r W allace

. In Terry v. Hubert , 609 F.3d 757, 763 (5th Cir. 2010), we held that a warden who was sued under § 1983 “could reasonably have concluded that [the plaintiff’s] detention was pursuant to process,” because the plaintiff was “afforded a bond hearing on his charges.” Reed

ar gues that Hubert is not controlling, because the issue there pertained t o a n inquiry regarding whether the warden had violated clearly established law and not to the Wallacelegal-process requirement. Instead, Reed points to Mondragon v. Thompson , 519 F.3d 1078 (10th Cir. 2008), to suggest that a bond hearing does not constitute legal p r o c ess. The plaintiff in that case alleged that he appeared at “some sort of hearing” but contended that it did not c onstitute legal process, because the record did not indicate what kind of hearing it was. Id. at 1081. Because the arrest warrant was forged and there was no information regarding what kind of hearing the plaintiff received, the court expressed doubt that the plaintiff had received legal process

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within the meaning of Wallace , so it remanded for the district court to make the determi n ation. Id

. at 1083-84. The court noted, however, that the Wallace requirement would have been satisfied if the arrest warrant had not been forged or if there were more information surrounding the plaintiff’s hearing. Id. Re e d ap p e ar ed at a bond hearing and posted bond no later than August 2009. Because she appeared befor e a judge, acknowledged the claims against her, and posted bail, we can ascertain th e kind of hearing she received. We conclude that a bond hearing satisfies the definition of legal process within the meaning of Wallace , so we need not remand to allow Reed to amend. Even if the bond hearing did not meet the legal-process require m e nt of Wallace , Reed attended several later revocation hearings that constituted legal
process. The first, in which Reed was represented by counsel, was held in September 2009, so Reed’s claims expired, at the latest, in September 2010. Because she did not sue until January 2011, her Fourth Amendment claims are timebarred, even using the later accrual date. 1

III. Ree d alternatively argues that, even if her Fourth Amendment claim is time-barred, she can state a viable claim under the Due Process Clause if permitted to amend. Although Federal Rule of Civil Procedure 15(a) “declares that leave to amend ‘shall be freely given when justice so requires,’” Foman v. Davis , 371 U.S. 178, 182 (1962), Reed never asked the district court for leave to amend

De sp ite the bond hearing and the sub se quent revoc atio n hearings, Reed ins ist s that 1 the only hearing this court sho u l d c o nsi der for acc rual pur pos es is the one held in January 2010. Reed has off

ere d no sup port for that ass ert io n , a nd we se e no reas on to cons ide r the bondhe aring or the Sep tember revoc atio n he aring ins uff icie nt unde r Wal la ce . 4 Case: 12-30196 Document: 00511969920 Page: 4 Date Filed: 08/27/2012No. 12-30196

or sought to raise a due process claim during the more than one year that suit

was p e n di ng. Therefore, the court did not deprive her of an opportunity to amend. Reed also claims that, even though she failed to raise a due-process claim in her initial pleading or to move to amend, justice requires that this court permit her to raise a due-process claim. As a general rule, “[a] party cannot raise

a new theory on appeal that was not presented to the court below,” Capps v. Humble Oil & Refining Co. , 536 F.2d 80, 82 (5th Cir. 1976), but Reed contends that these are “exceptional circumstances” that allow an appellate court to hear

an issue for the first time on appeal if “no further fa c t u al d ev e lopment is required and a miscarriage of justice would otherwise result,” Payne v. McLemore’s Wholesale & Retail Stores , 654 F.2d 1130, 1144-45 (5th Cir. Unit A Sept. 1981). There is no miscarriage of justice. First, it is not certain that Reed would have succeeded on this theory if she had r ai s e d it in district court. See id. at 1 1 4 6 ( d e clining to consider a new theory on appeal, because it was not certain that the appellant would have prevailed on that theory in the lower court). Second, the due-process claim that Reed wishes to raise is not a pure question of law but instead would require further factual findings regarding Reed’s arrest and imprisonment to determine whether they in fact violated due process. Reed has presented only conclusi o n al allegations that her arrest was concocted through

a conspiracy, so no miscarriage of justice would result from following our general rule and refusing to hear her new claim. AFFIRMED.

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