UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-10333

Summary Calendar

_______________

RUSSELL ALLEN COLEMAN, on behalf of

Andrea Coleman, on behalf of

Christopher Coleman, Individually;

and CYNTHIA BURDINE COLEMAN, on

behalf of Andrea Coleman, on behalf

of Christopher Coleman,

Individually,

Plaintiffs-Appellees,

versus

GRAPEVINE, CITY OF; VERNON WRIGHT;

DONNA HAWKINS, 

Defendants,

and

GREGG BEWLEY; TOM MARTIN

Defendants-Appellants.

_______________

No. 95-10385

Summary Calendar

_______________

RUSSELL ALLEN COLEMAN, on behalf of

Andrea Coleman, on behalf of

Christopher Coleman, Individually;

and CYNTHIA BURDINE COLEMAN, on

behalf of Andrea Coleman, on behalf

of Christopher Coleman,

Individually,

Plaintiffs-Appellants,

versus
 

* 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opinion should not be published and is not precedent except under the limited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.

-2-

GRAPEVINE, CITY OF; GREGG BEWLEY; 

Defendants-Appellees,

and

DONNA HAWKINS;

Defendant,

and

TOM MARTIN,

Defendant-Appellee.

_______________________________________________

Appeals from the United States District Court

for the Northern District of Texas

(4:94-CV-370-A)

_______________________________________________

May 8, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Russell Allen Coleman and Cynthia Burdine Coleman ("the

Colemans") appeal the district court's grant of judgment as a

matter of law dismissing their 42 U.S.C. § 1983 claims against the

City of Grapevine, Texas, Chief of Police Tom Martin and Officer

Gregg Bewley. We affirm.

I

Based upon allegations that the Colemans had sexually abused

a four-year-old girl, Officer Bewley sought and executed warrants

to arrest the Colemans and search their home. After a grand jury

refused to indict them on criminal charges, the Colemans filed a
-3-

§ 1983 suit against Chief of Police Martin, Officer Bewley and the

City of Grapevine, alleging a violation of their right to be free

from unreasonable searches and seizures. The case advanced to

trial; however, at the close of the Coleman's case, the district

court granted judgment as a matter of law in favor of the City of

Grapevine, Chief of Police Martin and Officer Bewley. The Colemans

filed a timely notice of appeal.

The Colemans contend that the district court erred in finding

that the individual Defendants were entitled to judgment as a

matter of law on grounds of qualified immunity. We review the

district court's grant of judgment as a matter of law de novo,

considering all of the evidence presented, and drawing all

reasonable inferences in the light most favorable to the nonmovant. London v. MAC Corp. of America, 44 F.3d 316, 318 (5th

Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 99, 133 L. Ed. 2d 53

(1995). Judgment as a matter of law is properly granted when the

facts and inferences point so strongly in favor of the movant that

a rational jury could not arrive at a contrary verdict. Id.; FED.

R. CIV. P. 50(a).

In assessing a claim of qualified immunity, the court must

first determine whether the plaintiff has alleged the violation of

a clearly established constitutional right. Rankin v. Klevenhagen,

5 F.3d 103, 105 (5th Cir. 1993). If so, the court must then decide

whether the defendant's conduct was objectively reasonable in order

to determine whether he is entitled to qualified immunity. Id.

"There is no cause of action for false arrest under § 1983 unless
-4-

the arresting officer lacked probable cause." Brown v. Bryan

County, Okla., 67 F.3d 1174, 1180. (5th Cir. 1995), petition for

cert. filed, 64 U.S.L.W. 3503 (U.S. Jan. 5, 1996) (No. 95-1100).

In evaluating whether probable cause existed, we must consider the

totality of the circumstances surrounding the arrest. Id.

Officers have probable cause to arrest if, at the time of arrest,

"the facts and circumstances within their knowledge and of which

they had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that [the arrested] had

committed or was committing an offense." Id. (internal quotation

marks omitted). Proof of probable cause requires less evidence

than would be required for conviction))that is, less than proof

beyond a reasonable doubt))but more evidence than a "bare

suspicion." United States v. Raborn, 872 F.2d 589, 593 (5th Cir.

1989). "Only where the warrant application is so lacking indicia

of probable cause as to render official belief in its existence

unreasonable will the shield of immunity be lost." Malley v.

Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1098, 89 L. Ed. 2d

271 (1986) (internal citation omitted).

Having reviewed the record, we conclude that the facts and

circumstances, of which Chief of Police Martin and Officer Bewley

had reasonably trustworthy information, were sufficient to allow a

person of reasonable prudence to believe that the Colemans had

committed an offense. Evidence supporting probable cause at the

time Officer Bewley submitted the application for the arrest and

search warrants included written statements from the four-year-
 

1 Because the police officers had probable cause, the Colemans have

failed to establish that they suffered a constitutional injury. We must

therefore also affirm the grant of judgment as a matter of law with respect to

the City of Grapevine. See Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402,

1407 (5th Cir. 1995) (holding that to maintain a § 1983 action against a

municipality, plaintiff must first show an underlying constitutional violation,

only then do we ask whether the city is responsible for that violation).

 

2 Appellees cross-appeal, claiming that the trial court improperly

denied their motion for summary judgment. Because we hold that the district

court's judgment as a matter of law was proper, Appellees' cross-appeal is hereby

dismissed as moot.

-5-

old's mother recounting her child's testimony regarding graphic

details of sexual abuse. The officers were also in possession of

a videotaped interview conducted by authorities at Child Protective

Services, in which the four-year-old girl described sexual abuses

occurring at the Coleman's house. We find that the evidence in the

record points so strongly and overwhelmingly in favor of the

existence of probable cause that a rational jury could not arrive

at a contrary verdict. Accordingly, the district court did not err

by granting judgment as a matter of law in favor of the Chief of

Police Martin and Officer Bewley on grounds of qualified immunity.1

II

For the foregoing reasons, we AFFIRM.2