Hebert, et al v. Maxwell, et al

United States Court of Appeals
Fifth Circuit
F I L E D
January 19, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30929
_______________
LENWARD P. HEBERT; DARNELL A. HEBERT,
Plaintiffs-Appellees,
VERSUS
RANDY J. MAXWELL, etc. et al,
Defendants
RANDY J. MAXWELL,
SHERIFF OF CONCORDIA PARISH,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AND AS KEEPER OF CONCORDIA PARISH JAIL;
JIM BOYD,
DEPUTY OF CONCORDIA PARISH SHERIFF’S DEPARTMENT,
IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY,
Defendants-Appellants
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 1:03-CV-1739
______________________________

-- 1 of 5 --

2
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
After being arrested for criminal trespass
and spending about forty-eight hours in jail,
Lenward Hebert brought a 42 U.S.C. § 1983
action for false arrest, false imprisonment, de-
nial of bail, and unconsititutional conditions of
confinement. The district court denied the
claim of qualified immunity made by the defen-
dants, Sheriff Randy Maxwell and his deputy,
Jim Boyd. The defendants appeal the denial of
qualified immunity for false arrest and condi-
tions of confinement, and we affirm.
I.
After the Concordia Parish Sheriff’s office
received several calls about a suspicious blue
pickup, Boyd came upon Hebert sitting inside
his blue pickup, which was parked off the side
of the highway in a grassy area in front of a
farm. Boyd approached Hebert and asked
who he was and what he was doing. Hebert
initially indicated that he was a surveyor, but
he soon admitted that he was a private inves-
tigator. Hebert refused to provide information
about whom he was investigating, although he
did provide extensive identification, including
a valid driver’s license, a Louisiana private in-
vestigator’s license, a Louisiana permit for
tinted windows, vehicle registration, a veter-
an’s identification card, and his scuba diving
certification.
Boyd called Gene Tiffee, the landowner, to
the scene. Tiffee signed a statement that He-
bert was parked “on Gene Tiffee[’s] land at
the intersection of La. 129 & 907 next to his
cow pen.” Hebert claims that he offered to
move his truck and leave the scene but was
precluded from doing so. Boyd arrested He-
bert for criminal trespass and later testified that
Maxwell told him to arrest Hebert and hold
him until they “found out more information.”
Hebert was taken to the parish jail Saturday
afternoon. He was given two bedsheets, two
towels, and two hand towels, was permitted to
call his wife, and was placed in a holding cell
called the “tank.” Hebert told his wife that he
had been arrested but that she should not come
to the jail because he would not be let out until
Monday. Although the bond for criminal tres-
pass is preset on a bond schedule, Hebert did
not pay the bond until Monday. Maxwell had
placed a “hold” on Hebert until Monday and
testified that the “hold” was maintained until
they could “find out who [Hebert] was.” On
Monday, Hebert was taken before a judge,
posted bond, and was released.
Hebert complains that the jail conditions
were inhumane. He asserts that the cell reeked
of human waste, which was strewn across the
walls and the floor. The “tank” contained no
bed, only a hard wooden bench. He claims the
overhead lights were never turned off, that he
was not permitted to shower or exercise, and
that he was not given soap, toilet paper, tooth-
brush, or toothpaste until shortly before re-
lease. Although he received three meals a day,
he urges that the food was cold, that it had
been sitting out for a considerable time before
being served, and that the only edible item was
a biscuit. Finally, he alleges that clean cells
with mattresses were empty and available in
the jail. * Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

-- 2 of 5 --

3
II.
We have jurisdiction to review the district
court’s denial of summary judgment on the
basis of qualified immunity in this case because
it comes within the collateral order doctrine.
Where the denial of qualified immunity is
based on an issue of law, it is an appealable
“final order” within the meaning of 28 U.S.C.
§ 1291. Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). Whether a fact that is in dispute
is “material” is a legal issue over which we
have jurisdiction. Davis ex rel McCully v. City
of N. Richland Hills, 406 F.3d 375, 379 (5th
Cir. 2005). We determine whether an issue of
the materiality of disputed facts is properly
raised on appeal by reference to the nature of
the legal argument advanced in the appellant’s
brief. Id.
Defendants argue that the uncontested facts
demonstrate that there was probable cause to
arrest Hebert. They also reason that even if
the plaintiff’s allegations as to the condition of
the “tank” are true, they do not rise to the
level of a violation of a clear statutory or con-
stitutional right. These arguments address the
materiality of the facts the district court found
to be in dispute, raising legal issues that this
court may review on interlocutory appeal.
III.
Defendants contend that the district court
erred in denying qualified immunity on the
claim of false arrest. We review the refusal to
dismiss Hebert’s claim on the basis of qualified
immunity de novo. Wilkerson v. Stalder, 329
F.3d 431, 434 (5th Cir. 2003).
Once a public official has raised the defense
of qualified immunity, the burden rests on the
plaintiff to rebut it. See Pierce v. Smith, 117
F.3d 866, 871-72 (5th Cir. 1997). On a mo-
tion for summary judgment, the disputed facts
to which the plaintiff points must be sufficient,
if his version is accepted, for a reasonable trier
of fact to determine (1) that the defendants
violated the plaintiff’s constitutional rights and
(2) that the violation was objectively unreason-
able. See Fraire v. City of Arlington, 957
F.2d 1268, 1273 (5th Cir. 1992). The inquiry
into reasonableness asks “whether ‘[t]he con-
tours of the right [are] sufficiently clear that a
reasonable official would understand that what
he is doing violates the right.’” Id. (citing
Anderson v. Creighton, 483 U.S. 635, 640
(1987)). If reasonable public officials could
differ as to whether the defendants’ actions
were lawful, defendants are entitled to immun-
ity. Malley v. Briggs, 475 U.S. 335, 341
(1986).
“The right to be free from arrest without
probable cause is a clearlyestablished constitu-
tional right.” Mangierei v. Clifton, 29 F.3d
1012, 1016 (5th Cir. 1994). The test for prob-
able cause is whether the officer, at the time of
arrest, “had knowledge that would warrant a
prudent person’s belief that the person arrested
had already committed or was committing a
crime.” Id. (citing Duckett v. City of Cedar
Park, 950 F.2d 272, 278 (5th Cir. 1992)).
“Police officers who reasonably but mistakenly
conclude that probable cause is present are
entitled to qualified immunity.” Id. at 1017
(citing Hunter v. Bryant, 502 U.S. 224, 227
(1991)).
In Devenpeck v. Alford, 543 U.S. 146
(2004), the Court considered a claim of false
arrest under the Fourth Amendment and con-
cluded that a subjective analysis of the offi-
cer’s state of mind is irrelevant to the analysis.
Id. at 153. The only question is whether, giv-
en the facts known to the officer, he had prob-
able cause to arrest the defendant for a crime.
Id. Applying the Devenpeck standard in the

-- 3 of 5 --

4
qualified immunity context, the inquiry is
whether, given the facts known to Boyd, he
could have reasonably believed he had proba-
ble cause to arrest Hebert for any crime.
Boyd and Maxwell point to three statutes
under which Hebert could have been arrested:
Criminal Trespass, LA. REV. STAT. 14:63
(1997) (amended 2003); Parking upon the
Highway Shoulder, LA. REV. STAT. 32:296(a)
(2002); and Blocking of Private Driveways,
Highways and Department Rights of Way, LA.
REV. STAT. 32:143.1 (2002). The Criminal
Trespass statute, as encoded at the time of He-
bert’s arrest, provided as follows:
B. No person shall intentionally enter im-
movable property owned by another:
(1) When he knows his entry is unau-
thorized, or
(2) Under circumstances where he rea-
sonably should know his entry is unau-
thorized...
C(2) It shall be an affirmative defense
to a prosecution pursuant to Subsec-
tion B(2) to show that property was
not adequately posted in accordance
with Subsections D or E, and F of this
Section.
. . .
E. In order for immovable property other
than forest land to be adequately posted . . .
the owner . . . shall post the property by . . .
(3) Constructing a fence around the
area to be posted . . . .
LA. REV. STAT. 14:63 (1997) (amended 2003).
To convict a defendant of criminal trespass
under this statute, the state must “prove an un-
authorized intentional entry onto immovable
propertyowned byanother under circumstanc-
es where the person entering the property
knows or reasonably should know the entry is
unauthorized.” State v. Davis, 540 So. 2d
600, 602 (La. App. 5th Cir. 1999). Boyd can
point to no facts, other than reports of “suspi-
cious activity,” that are entirely unrelated to
Tiffee’s property, to suggest that Hebert had
the intent to enter property belonging to an-
other. Similarly, Boyd has pointed to no facts
suggesting Hebert had reason to believe park-
ing on the highway side of Tiffee’s fence was
unauthorized. Without any facts suggesting
intent or knowledge, Boyd could not have had
probable cause to believe Hebert was commit-
ting the crime of criminal trespass.
The other two statutes are similarlyunavail-
ing. One refers specifically to parking “un-
attended” vehicles on a state highway shoul-
der. LA. REV. STAT. 32:296(a) (2002). Nei-
ther party contends that Hebert’s pickup was
unattended. The other statute provides au-
thority for an officer to tow, or to require a
driver to move, a vehicle that blocks a private
driveway. This section only authorizes an of-
ficer to require the operator of the vehicle to
move it or to pay one dollar plus towing costs
for the vehicle; it is not grounds for arrest.
Even if either of these statutes were a ground
for arrest, Louisiana law provides that when a
person is arrested for a violation of the Louisi-
ana Highway Regulatory Act, he “shall be re-
leased on his own recognizance upon signing
the promise to appear section of the traffic ci-
tation.” LA. REV. STAT. 32:411.1(A)(4)
(2002).
Thus these two statutes, even if they were
violated, are not grounds for imprisonment.

-- 4 of 5 --

5
Because Boyd could not have believed he had
probable cause to arrest Hebert without facts
relating to Hebert’s intent to trespass or his
knowledge that he was trespassing, the de-
fense of qualified immunity was properly
denied.
IV.
Defendants urge that the district court erred
in denying qualified immunity on the claim of
unconstitutional conditions of confinement.
Section 1983 liability for alleged violations of
detainee’s rights can be premised on two the-
ories: (1) that the conditions of confinement
violated the detainee’s rights or (2) that epi-
sodic acts or omissions of officials violated
those rights. Scott v. Moore, 114 F.3d 51, 53
(5th Cir. 1997). Hebert complains that he was
not provided a bed, that the meals were inade-
quate, that he lacked basic supplies like toilet
paper and toothpaste, and that the room was
filthy. These allegations amount to a “consti-
tutional attack on general conditions, practic-
es, rules, or restrictions of pretrial confine-
ment,” so this case presents a claim of uncon-
stitutional conditions of confinement. Id. (cit-
ing Hare v. City of Corinth, 74 F.3d 633, 644
(5th Cir. 1996)). In a condition of confine-
ment case, the municipality is considered to
have intended the alleged deprivation, and a
constitutionalviolation occurs where we deter-
mine that “the condition of confinement is not
related to a legitimate, non-punitive govern-
mental objective.” Id.
We take the facts in the light most favor-
able to Hebert. He alleges that he was forced
to sleep on a wooden plank while the county
had other cells with mattresses available. The
government’s stated objective was to “find out
who [Hebert] was.” In the absence of a com-
pelling governmental interest, housing a de-
tainee in a room without sleeping accommoda-
tions, when other available rooms had sleeping
facilities, is enough to survive a summary judg-
ment motion based on qualified immunity.1
The order denying qualified immunity is
AFFIRMED, and this matter is REMANDED
for further proceedings. We express no view
on the ultimate merits of this case.
1 Some courts have held that forcing a detainee
to sleep without a mattress, even for as little as
thirty-six hours, states a due process violation. See
Oladipopo v. Austin, 104 F. Supp. 2d 626 (W.D.
La. 2000) (citing Thompson v. City of Los An-
geles, 885 F.2d 1439, 1449 (9th Cir. 1989); Anela
v. Wildwood, 790 F.2d 1063, 1069 (3d Cir.
1986)); but see Mann v. Smith, 796 F.2d 79, 85
(5th Cir. 1986) (“[The detainee] has cited no case
holding that the Constitution requires elevated beds
for prisoners, and we know of no source for such a
right.”). We do not need to address this specific
question, because in this case the governmental unit
had mattresses available but refused to provide one
to Hebert.

-- 5 of 5 --