     Case: 14-30536      Document: 00513048221         Page: 1    Date Filed: 05/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No.  14-30536                             May 19, 2015
                                                                              Lyle W. Cayce
ROYCE DENTON MCLIN,                                                                Clerk


                                                 Plaintiff-Appellee,
v.

JASON GERALD ARD, In His Capacity as Sheriff of Livingston Parish;
BENJAMIN THOMAS BALLARD, LPSO Detective; JACK R. ALFORD, JR., 
LPSO Detective; STAN CARPENTER, LPSO Major; BRIAN P. SMITH,
LPSO Lieutenant Colonel; BONITA G. SAGER, LPSO Detective; WILLIAM
DORSEY, also known as Willie,

                                                 Defendants-Appellants. 



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No.  3:13-CV-538


Before STEWART, Chief Judge, and SOUTHWICK and COSTA, Circuit
Judges. 
PER CURIAM:*
       Plaintiff-Appellee filed suit pursuant to 42 U.S.C. §§ 1983 and 1988
against Defendants-Appellants alleging violations of his First, Fourth, Fifth,
and Fourteenth Amendment constitutional rights.  The district court granted
Defendants-Appellants’ motions to dismiss on grounds of qualified immunity


       * 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  R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 
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                                No.  14-30536
each of Plaintiff-Appellee’s claims except his Fourth Amendment claim of
unlawful search and seizure.  Defendants-Appellants filed this appeal.  For the
following reasons, we remand for further proceedings consistent with this
opinion. 
            I. FACTUAL & PROCEDURAL BACKGROUND
     According to Plaintiff-Appellee Royce Denton McLin (“McLin”), on April
20, 2012, Livingston Parish council member Chance Parent filed a report with
the Livingston Parish Sheriff’s Office (“LPSO”) alleging that someone had
anonymously posted negative comments on Facebook about Parent and two
other council members, James Norred and Cynthia Wale.            After Parent’s
complaint was filed, LPSO Detective Benjamin Ballard (“Det.  Ballard”)
obtained a subpoena duces tecum for records from Facebook and Charter
Communications.  The documents obtained from these companies indicated
that there was a link between the account used to post the anonymous
comments and McLin’s home address.  Det.  Ballard then obtained a search
warrant to search McLin’s home.  Pursuant to the warrant, Det.  Ballard and
LPSO Det.  Jack Alford searched McLin’s home and seized various computers
and electronic devices, including a gaming console, and sent the items to the
Louisiana State Police Department (“LAPD”) for forensic analysis.           The
LAPD’s analysis concluded that the anonymous posts originated from one of
the computers that had been seized from McLin’s home. 
     A few months later, on August 16, 2012, several detectives from the
LPSO including Dets.  Ballard and Alford met with council members Parent,
Norred and Wale, who swore out criminal complaints resulting in the issuance
of a misdemeanor summons charging McLin with three counts of violating La.
R.S. § 14:47, which is Louisiana’s criminal defamation statute.  LA.  REV.  STAT. 




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                                        No.  14-30536
§ 14:47.  1 When McLin learned of the summons and the charges, he voluntarily
surrendered to the LPSO.  Four months later, on December 19, 2012, the
misdemeanor charges were dismissed by the Livingston Parish District
Attorney’s Office. 
       In August 2013, after the charges were dismissed against him, McLin
filed suit in federal court against council members Parent, Norred, and Wale
(collectively, “Council Member Defendants”), as well as Livingston Parish
Sheriff Jason Ard, and LPSO Dets.  Ballard, Alford, Stan Carpenter, Brian
Smith, Bonita Sager, and William Dorsey (collectively, “LPSO Defendants”). 
McLin’s complaint was filed pursuant to 42 U.S.C. §§ 1983 and 1988 and
alleged violations of his First, Fourth, Fifth and Fourteenth Amendment
constitutional rights.  2 U.S. CONST.  amends.  I, IV, V, XIV. 
       The district judge granted in full Council Member Defendants’ motion to
dismiss McLin’s claims against them.  McLin does not appeal that judgment. 
The district court also granted LPSO Defendants’ motion to dismiss McLin’s
claims against them alleging violations of his First, Fifth, and Fourteenth
Amendment rights, and his Fourth Amendment right against unlawful seizure
as it pertained to McLin’s misdemeanor summons.  McLin does not appeal that
part of the district court’s judgment.  The district court denied, however, LPSO


      1   La. R.S. § 14:47 provides in part:
               Defamation is the malicious publication or expression in any manner, to
               anyone other than the party defamed, of anything which tends:
               (1) To expose any person to hatred, contempt, or ridicule, or to deprive him of
                   the benefit of public confidence or social intercourse; or
               (2) To expose the memory of one deceased to hatred, contempt,
                   or ridicule; or
               (3) To injure any person, corporation, or association of persons
                   in his or their business or occupation. 

      2  McLin also brought in this action pendent state law claims arising under Louisiana
Civil Code articles 2315−17 and 2320.  See LA.  CIV.  CODE arts.  2315−17; 2320.  Those claims
are not at issue in this appeal. 
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                                      No.  14-30536
Defendants’ motion to dismiss McLin’s claim that they violated his Fourth
Amendment right against the unlawful search of his home and seizure of his
property.     In its written ruling, the district court concluded that LPSO
Defendants’ qualified immunity defense failed because their search of McLin’s
home was not “objectively reasonable” since it was based on a warrant issued
pursuant to a non-crime, i.e., criminal defamation of a public official.  See State
v. Defley, 395 So.  2d 759, 761 (La. 1981) (holding that La. R.S. § 14:47 “is
unconstitutional insofar as it punishes public expression about public officials.” 
(citations omitted)). 
       LPSO Defendants appeal the part of the district court’s judgment
denying their motion to dismiss on grounds of qualified immunity. 
                                   II.  DISCUSSION
       The sole issue on appeal is whether the district court erred in denying
LPSO Defendants’ motion to dismiss McLin’s § 1983 claim stemming from the
alleged violation of his Fourth Amendment right against the unlawful search
of his home and seizure of his property.  3 LPSO Defendants assert two primary
arguments on appeal.  First, they contend that McLin failed to plead sufficient
facts in his complaint to state a claim for relief under 42 U.S.C. § 1983 because
his complaint does not allege that the search warrant was issued pursuant to
La. R.S. § 14:47, but instead, it only states that his misdemeanor summons
was issued pursuant to La. R.S. § 14:47.  Second, LPSO Defendants argue that,
even assuming the search warrant was based on La. R.S. § 14:47, they are
nevertheless entitled to qualified immunity because their actions were
objectively reasonable since the search of McLin’s home was conducted


       3 McLin also argued before the district court that his Fourth Amendment right against
unlawful seizure was violated when he was issued the misdemeanor summons.  In that
context, he argued that the issuance of the summons was tantamount to an unlawful seizure
because the summons was no different than an arrest.  The district court rejected that
argument and McLin does not appeal that part of the judgment. 
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                                   No.  14-30536
pursuant to a warrant.  For the reasons stated, we do not address the second
argument. 
     A. Standard of Review
     “We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s
denials of qualified immunity.”  Club Retro, L.L.C. v. Hilton, 568 F.3d 181,
193−94 (5th Cir.  2009) (citation omitted). “ The denial of a motion to dismiss
predicated on a defense of qualified immunity is a collateral order capable of
immediate review.”       Id. at 194 (citation omitted).        Appellate jurisdiction,
however, is very limited: “we are restricted to determinations ‘of question[s] of
law’ and ‘legal issues,’ and we do not consider ‘the correctness of the plaintiff's
version of the facts.’”  Id. (citations omitted). “ We must accept all well-pleaded
facts as true, draw all inferences in favor of the nonmoving party, and view all
facts and inferences in the light most favorable to the nonmoving party.”  Id.
(citation omitted).  To avoid dismissal, plaintiffs must plead “enough facts to
state a claim for relief that is plausible on its face.”  Id. (quoting Bell Atl.  Corp.
v. Twombly, 550 U.S. 544, 547 (2007)). 
     B. Analysis
      We agree with LPSO Defendants’ first argument that “nowhere in
[McLin’s] complaint is it alleged that the search warrant sought evidence of a
violation of [La. R.S. § 14:47].”  Page 2, Paragraph 3 of McLin’s complaint
states: “On or about August 16, 2012, Plaintiff Royce Denton McLin was issued
a Misdemeanor Summons alleging Plaintiff was guilty on three (3) counts of
having violated La. R.S. § 14:47, Criminal Defamation.”  Paragraph 4, which
immediately follows, states: “Plaintiff’s Summons with its incorporated
charges was based upon three (3) facially-invalid arrest warrants maliciously
concocted through the individual and concerted efforts of each and every party
defendant.”  The complaint then goes on to describe the legal history of the


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                                       No.  14-30536
statute’s unconstitutionality as it applies to public speech against public
officials. 
       Although McLin’s complaint does mention a misdemeanor summons and
an arrest warrant, it fails to reference the search warrant.  McLin’s § 1983
claim that his Fourth Amendment right against unconstitutional search was
violated could not prevail on allegations merely referencing an arrest warrant. 
Accordingly, we hold that the complaint fails to adequately plead “enough facts
to state a claim for relief that is plausible on its face,” see Twombly, 550 U.S.
at 547, and we remand for the district court to afford McLin an opportunity to
amend his complaint.  4
       In light of this conclusion, we pretermit discussion of LPSO Defendants’
second argument that, assuming the warrant was issued pursuant to La. R.S.
§ 14:47, they were nevertheless entitled to qualified immunity. 
                                  III.  CONCLUSION
       We REMAND for further proceedings consistent with this opinion. 




       4  We note that McLin never sought leave to amend his complaint below because the
district court appears to have found the complaint sufficient on its face to state a plausible
claim for relief.  Because we hold that the district court committed error in this regard, we
conclude that McLin is entitled to an opportunity to cure his complaint on remand.  See
Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that pursuant to Fed.  R. Civ.  P. 15, leave
to amend “shall be freely given when justice so requires”). 
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