### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31036

JULIE BLANCHARD; SOPHISTICATED SALADS, L.L.C., doing business as Sophisticated Café & Grill; 10-40 DINER, INC., Plaintiffs - Appellants
v. GREGORY J. LONERO, Individually and In his Official Capacity, as a Duly Commissioned Law Enforcement Officer; MICHAEL PIZZOLATO, Individually and In His Official Capacity as a Duly Commissioned Law Enforcement Officer; MICHAEL MILLER, Detective; Individually and In His Official Capacity as a Duly Commissioned Law Enforcement Officer; NEWELL NORMAND, Defendants - Appellees

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:06-CV-4023

Before BENAVIDES and PRADO, Circuit Judges, and ALVAR EZ, District Judge. * PER CURIAM: ** U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 7 , 20 11 Lyle W . Cayce Clerk

D ist ric t Judge of the Sout hern Di st ric t of Texas , sit ting by d es ignati on. *

Purs uant to F IFT H C IR C UIT R UL E 47.5 , the c o u rt has det erm ined that this opi nion * * sho uld not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in F IFT H C IR C UIT R UL E47. 5.4. Case: 10-31036 Document: 00511687535 Page: 1 Date Filed: 12/07/2011No. 10-31036

In this action alleging unlawful s earches and seizure, unlawful arrest, and

m a licious prosecution, Plaintiffs-Appellants Julie Blanchard, Sophisticated Salads, L.L.C. a n d 1 0-40 Diner, Inc. appeal the district court’s judgment dismissing their claims against Defendants-Appellees Gregory Lonero, Michael Pizzolato, Michael Miller, and Newell Normand. We AFFIRM.

FA C T U A L A N D P R O C E D U R A L BA C K G R O U N D Gregory Lonero and his wife, Eileen Lonero (together, t h e “Loneros”),

o w n e d property located at 2309 David Drive in Metairie, Louisiana. At a l l relevant times, Gregory Lo n e r o w a s also employed as a deputy with the Jefferson Parish Sheriff’s Office (“JPSO”). O n o r ab o ut April 6, 2005, Julie Blanchard (“Blanchard”) and 10-40 Diner, Inc., of which Blan c h a r d was sole stockholder and representative, rented the property from the Loneros to operate

a restaurant. As part of the lease, Blanchard, “ac k n o w l e d g e [d] that the 1 restaurant equipment upon the leased premises belongs to the Lessor” and that “[e]quipment [was] subject to Lessee’s use and obligations hereunder including, but not limited to, Lessee’s obligation to insure, repair, make replacemnts [sic], maintain and pay taxes related to such equipment.” The lease further provided that “[s]hould Lessee begin to remove . . . equipment,” such e v e n t would constitute a default under the lease. At some point on or before July 30, 2005, after experiencing maintenance problems with the property, Blanchard abandoned the leased property. On July 30, 2005, Sidney Aiavolasiti, an officer with the JPSO and a frien d o f Gregory Lonero, called Mr. Lonero, who was out of town, and reported that he had seen equipment being removed from the leased premises. Neither Mr. L onero nor

B l anchar d ope rat ed the res taur ant on the pr ope rty as Sop his tic ated Salad s, L L C

. 1 As ther e is no divis ion of inte res t rele van t t o t h e C o urt ’s analys is, the Plaint iffs- App ellant s are here aft er ref

err ed to sim ply as Blancha rd

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Mr s . Lonero gave Bl anch ard p er mi s s io n to re m ove the e quip m ent f ro m the prop erty . After learning from her husband that equipment had been removed from the property, Eileen Lonero went to t h e p r operty and observed through the windows that the equipment was missing. Mr. Lonero also requested, through his friend Aiavolasiti, that an officer go to the location. JPSO Deputy Michael Pizzolato (“Pizzo l ato”) responded to that request and reported to the scene. According to Deputy Pizzolato’s report, because Mrs. Lonero did not have access to the building, a “ c o m p l e t e inventory of the items missing could not be documented,” and he was limited to conducting “a brief inspection of the exterior of the business.” A locksmith was called, however, and an invoice, signed by Deputy Pizzolato, indicates th e l o c k s mith opened the front door and installed new locks on the building. On August 1, 2005, the JPSO assigned Detective Michael Miller (“Miller”) to the investigation. That same day , Detective Miller and Mr. Lonero visited the property and completed a walk through. Mr

. L o n e r o gave Detective Miller a copy of the le a s e a nd a list of equipment that Mr. Lonero determined to be missing from the property. Mr. Lonero told Detective Miller that, according to the lease, the equipment was to stay i nside the building. Mr. Lonero also told Detective Mi l l e r t h at a fellow officer, who had dated Blanchard’s roommate, Kathleen Frost (“Frost”), told Mr. Lonero that Blanchard had stored the missing property at a storage center on Jefferson Highway. On August 2 , 2005, Detective Miller spoke with Frost. Frost informed Miller that she saw Blanchard remove equipment from the property and place the equipment in a s t o r a g e unit. Detective Miller also spoke with Ahmad Abulehawa (“Abulehawa”), the previous owner of 10-40 Diner, Inc., from whom Blanchard had purchased the company in April 20 0 5. Abulehawa had also 2

De tec tive Mil ler’ s rep ort and Abulehaw a’s st atem ent are both dat ed August 3, 2005. 2 Infor mat ion obta ined fr om Abulehaw a is inclu ded in the wa rra nt app lica tio n, how ever, wh ich 3 Case: 10-31036 Document: 00511687535 Page: 3 Date Filed: 12/07/2011No. 10-31036

operated 10-40 Diner, Inc. as a tenant in the Lonero’s b u ilding. Abulehawa confirmed that the equipment in the buildin g was owned by the Loneros, and that he had informed Blanchard of that fact when he sold the company to her. Thereafter, Detective Miller prepared an application for a search warrant of Blanchard’s storage units. Detective Miller did not attach a copy of the lease to t h e a pplication. On August 2, 2005, a Louisiana State Judge signed the search warrant. That night, Detective Miller executed a search of the sto r a g e units and found property that appeared to b e th e m i s s i n g restaurant equipment. Detective Miller then called Gregory Lonero and requested he come to the unit to identify the property. Mr. Lonero arrived and assisted the officers in removing items from the storage units. A JPSO employee photographed the property identified b y M r. Lonero as belonging to him, and Detective Miller then released the equipment to Mr. Lonero. On Aug u s t 3, 2005, Blanchard wrote to the Loneros, detailing the problems she had encountered with the leased premises. The letter also stated: I just had the opportunity to review the lease form a n d o b served that all of the restaurant equipment belongs to the lessor. I will make arrangements to return. I was working under the impression that all the restaurant equipment belonged to 10-40 diner [sic] Inc. Gregory Lonero received the letter days after it was written, but h a d a l ready taken the equipment in the storage unit into his possession. On August 4, 2005, Detective Miller prepared an affidavit for an application for an arrest warrant for Blan c h a r d f o r theft over $500 and illegal possession of stolen things over $500. In the affidavit, Detective Miller stated: Ms. Blanchard agreed to the terms o f t h e lease, which stated that she was to maintain and upkeep the equipment but that she did not own i t

. I t w as determined that an estimated $15,000.00 worth of

wa s signe d by t he Judge on August2, 200 5. 4 Case: 10-31036 Document: 00511687535 Page: 4 Date Filed: 12/07/2011No. 10-31036

equip m e nt r a n gi n g f

rom ovens and stoves to napkins dispensers and utensils had been remo v e d f rom within the building without any permission or authorization of the lessors.
Detective Miller did n o t attach a copy of the lease to the arrest warrant application. A Justice of the Peace signed the arrest warrant on August 4, 2005. That same day, Julie Sanders (“ S a n d e rs”), a friend of Blanchard, called Detective Miller and advised him that Blanchard had been trying to get in touch with her lawyer. Sanders told Detective Miller that Blanchard spoke with her attorney, and had been advised to return all of the equipment she had removed from the property. Detective Miller infor m e d Sanders that an arrest warrant had already issued and that the property had already been recovered, but that

a flat grill and char-grill had not been recovered. Detective Miller asked Sanders to convey a request to Blanchard to return those items, and that he would allow Blanchard to voluntarily surrender. The two grills were subsequently returned, and released to Mr. Lonero, and, on August 15, 2005, B l a n c h ard voluntarily surrendered to Detective Miller. Thereafter, criminal p r o c eedings were instituted against Blanchard for theft. On January 31, 2007, a state district judge granted Blanchard’s motion to quash the bill of information, stating: Now considering t h at the State’s r esponses to the accused’s Bill of Particulars establish that at a l l relevant times the kitchen equipment referred to in the outstanding Bill of Information was in the lawful possession of the accused a n d w a s not the subject of a t h e f t; and after hearing the argument of counsel, the Cou r t , considering the law to be in favor of the accused, for the reasons orally assigned;

. . . the accused’s Motion to Quash is hereby GRANTED . . . . Thereafter, on July 31, 2006, Plaintiffs-Appellants filed the instant action in the United Stat e s D i s t rict Court against Mr. Lonero, Deputy Pizzolato,

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Detective Miller, and the JPSO sheriff, Newell Normand, alleging various state 3 and f e d e r a l causes of action for unlawful search, unlawful arrest, malicious prosecution, and conversion. On December 10, 2008, the district court granted summary judgment on Plaintiffs-Appellants’ § 1983 claims against Defendants, in their individual capa c i t i e s, arising from the August 1, 2005 search of the property. On May 28, 2009, the district court gr a n t e d Defendants-Appellees’ motion for summary judgment on the remaining claims. Thereafter, on March 24, 2010, the district court, on motion to reconsider, reinstated P l a i n t i ffsAppellants’ conversion claims against Detective Miller and Gregory L o n ero. Subsequently, the Plaintiffs-Ap p e ll a nt s f il e d a n u n o p p o s e d m o ti o n to dismiss the remaining conversion claim without prejudice, so that final judgment could be entered and appeal could proceed. On October 14, 2010, after granting the unopposed motion, the district court entered judgme n t for the DefendantAppellees, and this timely appeal followed. S TA N D A R D O F R E V I E W “We review a grant of summary judgment de novo , applying the same legal standard as the district court.” Croft v. Governor of Tex. , 562 F.3d 735, 742 (5th Cir. 2009) (internal quotation mar k s omitted). Summary judgment should be rendered if the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is material if its resolution could affect the outcome of the action.” Daniels v. Cty. of A r l i ng t o n, T ex . , 246 F.3d 500, 502 (5th Cir. 2001). “In deciding whether a fact issue has been created, the court must view the facts an d t h e i n ferences to be drawn therefrom in the light most favorable to the nonmoving party.” Id. This Court may affirm summary judgment “on any

Sher iff N orm and wa s add ed by am ende d ple adin g on January 7, 200 8. 3 6 Case: 10-31036 Document: 00511687535 Page: 6 Date Filed: 12/07/2011No. 10-31036

grounds supported by the record.” Lifecare Hosps., Inc. v. Health Pl u s of La., Inc. , 418 F.3d 436, 439 (5th Cir. 200 5). AN A L Y S I S Blanchard appeals the district court’s grant of su m m a r y judgment with regard to her claims that (1) Deputy Pizzolato and Gre g o ry Lonero unlawfully searched the property on June 30, 200 5 , ( 2 ) Detective Miller and Gregory 4 Lonero supplied false and misleading information to obtain a search warrant of h e r storage units, (3) Detective Miller and Gregory Lonero supplied f a l s e a n d misleading information to obtain an arrest warrant, (4) Detective Mi l l e r a n d G r egory Lonero maliciously prosecuted her, and (5) Sheriff Norma n d w a s vicariously liable for the unlawful arrest and malicious prosecution. The Court addresses each purported error in turn. 5 I. June 30, 2005 Search of the Property Blanchard argues that a genuine dispute of material fact exists as to whether Deputy Pizzolato, at Gregory Lonero’s urging, conducted a search of the
p r o p erty on June 30, 2005. Deputy Pizzolato’s report states that only an external search was conducted, which is confirmed by Eileen Lonero. Blanchard maintains, however, that the existence of the locksmith invoice, which indicates t h at the locksmith opened the front door, creates a genuine dispute ab o u t whether Deputy Pizzolato entered and searched the property. An individual’s right to claim protection from unreasonable search and seizure “depends not upon a property right in the invaded place but upon

Blancha rd doe s not app eal the dis tri ct cour t’s grant of sum mar y judgm ent wi th regar d 4 to the August1, 200 5 s earc h o f the pr ope rty. As Blancha rd mak es no argum ent and cit es no legal autho rit y in sup por t of her st ate 5 law clai ms for unlaw ful se arc h and arr es t, the Court dee ms Blancha rd to have wa ived app eal o f t h e d i s t r i c t cour t’s grant of sum mar y judgm ent as to them

. See Uni ted States v. LopezVe la squez , 526 F.3d 804, 808 n.2 (5t h Cir. 2008) (“Argum ents inad equat ely brie fed on app eal are wa ived. ”)

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whether the person who claims the protection of the [Fourth] Amendment has

a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois , 439 U.S. 128, 143 (1978). To demonstrate a legiti m a t e expectation of privacy, a plaintiff must show that she has a s u bj ective expectation of privacy in the premises searched and that her expectation of privacy is one that society would recognize as objectively legitimate. See United States v. Riazco , 91 F.3d 752, 754 (5th Cir. 1996). An individual, however, has no expectation o f p r iv a c y over abandoned property. See United States v. Edwards , 441 F.2d 749, 752 (5th Cir. 1 9 71) (“It is clear that this personal right to Fourth Amendment protectio n o f
p r operty against search and seizure is lost when the property is abandon e d

. ” ) The test of whether an individual abandoned property, for Fourth Amendment
purposes, is w h ether the individual “voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could

no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” United States v. Colbert , 4 7 4 F

. 2 d 174, 176 (5th Cir. 1973) (en ban c). The intent of the individual to abandon the property “may be inferred from words spoken, acts done, and other objective facts.” Id. Here, putting asid e t h e i s s ue of an existence of a genuine dispute as to whether Deputy Pizzolato entered the property, such a dispute is not material in light of Blanchard’s abandonment of the pr o p e r t y . By the time Deputy Pizzolato arrived at the property, Blanchard had removed all of her belongings

a n d a l l o f the equipment in the building, and departed. Moreover, she h a d informed Mr. Lonero about her intent to close her b u s i n e s s earlier that week. Blanchard i d e n t i f

i es no facts in the record to create a genuine dispute over whether she “voluntarily discarded, left behind, or otherwise relinquished [her] interest in the property.” See Colbert , 474 F.2d at 176. Blan chard had no legitimate expectation of privacy under the Fourth Amendment in the property at the time of the disputed search because, by that

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time, she had ab a n d o n e d the property. Accordingly, summary judgment was appropriate on her unlawful search claim. II. August 2, 2005 Search of the Storage Units B l a n chard next argues the search of the storage units was unla w f u l because Detective Miller made int e n t i o nally misleading statements and excluded exculpatory information when preparing his affidavit to support a search warrant of Blanchard’s storage units. In particular, Blanchard agues the following statement materially misstated the terms of the lease: Mr. Lonero pointed out that in the lease agreement dated April 6, 2005 signed by Greg Lonero and E i l e en Lonero, Lessor, and Julie Blanchard, 10-40 Diner, Lessee

. . . , in the section titled Article 30 Miscellaneous Provisions Regarding Equipment that is part of the building and is leased to the Lessee. The building and equipment specified in the lease is owned by Mr. L o n e r o a nd is not to be
r e moved or replaced without expressed permission fro m Mr . Lo n e ro . Mr. Lonero then pointed out a two page list that details all o f t he equipment that was part of the lease and that was now missing from the interior of the business.
Blanchard contends Detective Miller’s statement falsely implies that the lease states the equipment is part of the building, the equipment is not to be removed, that the lease did not state that equipment is to be replaced by the Lessee, and th a t the two page list of equipment was incorporated in and attached to the lease. Blanchard further argues that by failing to provide the s i g n i n g J u dge with a copy of the lease, De t ective Miller excluded exculpatory evidence that demonstrated Blanchard was in lawful possession of the equipment. Blanchard further argues that Gregory Lonero is also liable for falsely characterizing the lease when he discussed it with Detective Miller. “[A]n officer may be liable when he ‘makes a false statement knowingly and intentionally, or with reckless disregard for the truth’ that res u l t s in a warrant being issued without probab l e cause . . . .” Michalik v. Herman , 422

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F.3d 252, 258 n.5 (5th Cir. 2005) (quoting Franks v. Delaware , 438 U.S. 154, 155- 56 (1978)). “[I]f an officer, in an affidavit s u pporting a warrant, makes a false statement knowingly and intentionally, or with reckless disregard for the truth, the false statements must be disregarded in determining whether the affidavit is sufficient to support a finding of probable cause.” Hale v. Fish , 899 F.2d 390, 400 n.3 (5th Cir. 1990). “[A]n offic e r who makes knowing and intentional omissions that res u lt in a warrant being issued without probable cause” may also be liable, if, when such exculpatory omissions are included, probable cause is negated. See Michalik , 422 F.3d at 258 n.5 (emphasis omitted). H e r e, Blanchard fails to raise a genuine dispute with regard t o t h e veracity of the majority of the statements she identifies. First, Detective Miller’s statem e nt that the equipment was “part of the building and leased to the Lessee,” and that the equipment was “owned by Mr. Lonero and [was] not to be removed

. . . without expressed permission” are reasonable constructions of the lease’s provisions that “restaurant equipment upon the leased premises belongs to the Lessor” and that removal of the equipment would constitute a breach of the lease. Second, Detective Miller’s statement regarding the two page list is not fairly subject to the construction Blanchard advances. The item that is “part of the lease” is not the list, but the equipment referenced th e rein. Blanchard’s construction would render nonsensical Detective Miller’s sta t e m e n t that the item “was now missing from the interior of the business”; it was the equipment and not the list that was missing from the interior. Consequently, the only statement contradicted by the l e ase is that the Lessee requi r e s L o n ero’s permission to replace the equipment, as the lease provides that it is the Lessee’s responsibility to make replacements. Nevertheless, even assuming Detective Miller’s knowledge of this falsity may be i n ferred from the fact that he was provided with the lease, the affidavit, excluding that statement, would support a finding of probable cause. The

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affidavit set forth that: (1) the lease provided that the equipment was not owned by the Lessee and that it was not to be removed from the property, (2) the former tenant at the property confirmed this interpretation and had i n f o r m ed Blanchard of such terms, (3) Gregory Lonero had received a cal l s t a ting items

were being removed from the property, (4) Gregory Lonero stated he had not given Blanchard perm i s s i o n to remove the equipment, (5) Eileen Lonero observed all of the equipment had been removed from the property, (6) Gregory Lonero walked Detective Miller through the property and i d e n t i fied what equipment was missing, (7) Blanchard’s roommate, Frost, had seen Blanchard and others removing equipment from the property, (8) Blanchard told Frost that she put t h e r e m o v ed equipment in the storage facility, and (9) the storage facility’s manager confirmed that Blanchard leased various units at the location. Such facts are sufficient to establish probable cause to search the storage units. With regard to the lease, B l a nchard fails to identify evidence that Detective Miller’s omission was an attempt to knowingly and intentionally exclude materially exculpatory evidence. The lease’s provision that Blanchard may “use” the equipment c a n only be fairly read as a provision allowing Blanchard to use the equipment on the property; it did not give Blanchard permission to remove all of the proper t y a n d place it in her personal storage units, even after she intended to abandon the property and end her s tatus as lessee. Even assuming the lease could be so fairly read, there is no evidence to

6

Altho ugh the st ate cri mi nal cour t quas hed the Bill of I nfo rm atio n, find ing that , “th e 6 Sta te’ s res pons es to the a c c u s e d ’ s Bill of Part icula rs es tabl ish [ed] that at all rele vant tim es the ki tch en equip me nt ref err ed to in the outs tand ing Bill of Infor mat ion wa s i n t h e law ful pos se ss ion of the acc use d and wa s not subject of a thef t, ” it is uncle ar wh ethe r the st ate cour t fou nd that the leas e’s “us e” ter m pr ovide d Blancha rd wi th legal right to rem ove th e equip me nt, that its amb iguous natur e negate d Blancha rd ’s me ns rea , suc h that her pos se ss ion wa s not thef

t, orr elie d on so me ot her po rti on of the Bil l o f Infor mat ion. Nei thert he mo tio n to quas h nor bill of info rm atio n are inclu ded in the rec ord , and so it is im pos sib le to det erm ine wh at the st ate cri mi nal c o urt ’s judgm ent wa s bas ed on. Never thel es s, Blancha rd ide ntif ies no autho rit y t o s howt hat the st ate cour t’s dec isi on to quas h t he Bill of Infor mat ion has any 11 Case: 10-31036 Document: 00511687535 Page: 11 Date Filed: 12/07/2011No. 10-31036

show Detective Miller so read the lease, and thus knowingly and intentionally excluded that information by not attaching the lease to the warrant affidavit. Lastly, Detective Miller disclosed, in the warrant affidavit, the existence of the lease, Blanchard’s status as tenant, and that the equipment was leased to her. Attaching to the affidavit the lease’s term allowing her to “use” the equipment provides no additional material information bearing on probable cause. Accordingly, Blanchard fails to identify a g e n u i n e dispute as to the sufficiency of the warrant affidavit to establish probable cause. 7 III. Unlawful Arrest Blanch ar d s i m il arly a s s e rt s th e arr e s t w arr a nt application was misleading and contained material o m issions because (1) the lease was not attached, (2) Dete c t ive Miller did not interview Blanchard to determine her intent in removing the equipment, and (3) it contained Gregory Lonero’s characterization that the lease did not allow her to remove the equipment. Consequently, Blanchard argues that there is a genuine dispute of material fa c t a s t o t h e lawfulness of her arrest. Like her claim with regard to the unlawful search of the storage units, to prevail on her claim for unlawful arrest, Blanchard “must d e m o n s trate that a genuine issu e of material fact exists as to whether the Appellees knowingly provided false information to secure t h e arrest warrant[] or gave false information in reckless disregard for the truth.” Freeman v. Cnty. of Bexar , 210 F.3d 550, 553 (5th Cir. 2000). The Court “disregard[s] any such p r o p e r l y contested statements in the affidavits and t hen determine[s] whether the warrant would establi s h p rob ab l e c au s e with o ut the allegedly false information.” Id. Probable cause for an arrest exists “when t h e t o t a lity of the facts and

bear ing o n t he exis tenc e o f pr obable c aus e a t the tim e o f the se arc h w arr ant app lica tio n.

For this reas on, the Court doe s not add res s the ques tio n of wh ethe r Loner o coul d be 7 liable und er § 1 983 fors tat em ents he m ade t o D ete ctive M illerw hen act ing as la ndlo rd

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circumstances within a p o lice 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.” Glenn v. Cty. of Tyler , 242 F.3d 307, 313 (5th Cir. 2001) (citation and quotation marks omitted). The Court examines the totality of the circumstances to decide “whether there is a ‘fair probability’ that a crime occurred.” United States v. Garcia , 179 F.3d 265, 269 (5th Cir. 1999) (citations omitted). A “requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.” Id. With regard to the purported misstatements and omissions, as discussed

above, the lease was not materially exculpatory. Further, Lonero’s purp o r t e d

m i s s t a t e ment is in fact a fair characterization of the lease terms. Lastly, although Detective Miller could have called Blanchard to i n quire as to her motive, Blanchard identifies no authority requiring an officer to make such an i n q uiry. Rather, “[s]pecific intent may be inferred from the circumstances. ” Thierry v. Lee , 48 F.3d 529 ( 5 t h C ir. 1995). The fact that Blanchard had removed all of the e q u i pment from the property, and that the equipment had been found in Blanchard’s storage units, created a sufficient inference that Blanchard removed the property with the intent to permanently deprive the Loneros of it. See LA

. R E V

. S TA T

. AN N

. § 14:67 (providing el e m e n t o f theft is taking with “intent to deprive the other permanently”). Accordingly, Blanchard fails to show a genuine dispute of material fact as to the lawfulness of her arrest. IV. Malicious Prosecution Blanchard argues that a genuine dispute of material fact exists as to her malicious prosecution claim. Under Louisiana State law, a malicious 8

The dis tri ct co urt erro n eo usl y conc lude d that the Fourt h Ame ndm ent sup por ts a clai m 8 for mal icio us pr os ecut ion unde r § 1983 dis tinguis hable fr om Blancha rd ’s clai ms for unlaw ful se arc h and arr es t. See Caste llano v. Frago z o , 3 5 2 F.3d 939, 953 (5t h Cir. 2003) (en banc) 13 Case: 10-31036 Document: 00511687535 Page: 13 Date Filed: 12/07/2011No. 10-31036

prosecution claim re q u i res plaintiff show, among other things, an “absence of probable cause.” See Robinson v. Goudchaux’s , 307 So. 2d 287, 289 (La. 1 975). “The existence of probable cause in any case depends upon the particular facts of that case.” Culpepper v. Ballard , 34 4 So. 2d 110, 112 (La. App. Ct. 1977). “Probable cause does not depend merely upon the actual facts o f the case, [howev e r , ] but upon the defendant’s honest belief of the facts when making charges against the plaintiff.” Alston v. Stamps , 877 So. 2d 259, 262 (La. App. Ct. 2004). Blanchard’s sole contention is that the lease negated any probable cause to prosecute her. As discussed above, however, the lease did not eliminate the probab l e cause created by the facts honestly believed by Defendants. Accordingly, Blanchard fails to identify a genuine issue of material fact as to her malicious prosecution claim. V. Claims Against Sheriff Normand Lastly, Blanch ar d ap p e al s th e gr a nt of summary judgment as to her claims against JPSO Sheriff Normand. Blanchard’s sole argument is that the Sheriff is vicario u s ly liable for state law claims of malicious prosecution and false arrest. Consequently, as the Court has affirmed the grant of summary judgment as to those claims, sum m ary judgment is also appropriate as to Blanchard’s claims against Sheriff Normand. C O N C L U S I O N For the reasons stated above, the jud g m e nt of the district court is AFFIRMED.

(ho ldi ng “ca usi ng char ges to be fil ed wi thou t pr obable caus e wi ll not wi thou t mo re violat e the Cons tit utio n”; dec lining to u s e the ter m “m alic ious pr os ecut ion” wh ere clai m es tabl ish es a Cons tit utio nal violat ion suc h as unlaw ful se izure ) ; s e e a lso Cuadr a v. Ho uston Indep. Sch. Di s t. , 626 F.3d 808, 812- 13 (5t h Cir. 2010) (d ism iss ing fr ee- st andi ng § 1983 mal icio us pr os ecut ion clai m ). The dis tri ct cour t nevert heles s analyzed Blancha rd ’s clai m unde r Louis iana Sta te law , and we cons tru e Blancha rd ’s app eal as chall enging the grant of sum mar y judgm ent on her st ate lawm alic ious p ros ecut ion clai m. 14 Case: 10-31036 Document: 00511687535 Page: 14 Date Filed: 12/07/2011