Filed: Jan. 09, 2017
Latest Update: Mar. 03, 2020
Summary: Case: 16-30627 Document: 00513826493 Page: 1 Date Filed: 01/09/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fif h Circuit FILED No. 16-30627 January 9, 2017 Summary Calendar Lyle W. Cayce Clerk JIMMIE DERAMUS, doing business as Silver Dollar Pawn & Jewelry; TAMMIE DERAMUS-CREDEUR; JOHNNIE DERAMUS; PEGGY DERAMUS, doing business as Silver Dollar Pawn & Jewelry, Plaintiffs - Appellants v. CITY OF ALEXANDRIA; POLICE DEPARTMENT OF ALEXANDRIA; CHRIS B
Summary: Case: 16-30627 Document: 00513826493 Page: 1 Date Filed: 01/09/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fif h Circuit FILED No. 16-30627 January 9, 2017 Summary Calendar Lyle W. Cayce Clerk JIMMIE DERAMUS, doing business as Silver Dollar Pawn & Jewelry; TAMMIE DERAMUS-CREDEUR; JOHNNIE DERAMUS; PEGGY DERAMUS, doing business as Silver Dollar Pawn & Jewelry, Plaintiffs - Appellants v. CITY OF ALEXANDRIA; POLICE DEPARTMENT OF ALEXANDRIA; CHRIS BE..
More
Case: 16-30627 Document: 00513826493 Page: 1 Date Filed: 01/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
FILED
No. 16-30627 January 9, 2017
Summary Calendar
Lyle W. Cayce
Clerk
JIMMIE DERAMUS, doing business as Silver Dollar Pawn & Jewelry;
TAMMIE DERAMUS-CREDEUR; JOHNNIE DERAMUS; PEGGY
DERAMUS, doing business as Silver Dollar Pawn & Jewelry,
Plaintiffs - Appellants
v.
CITY OF ALEXANDRIA; POLICE DEPARTMENT OF ALEXANDRIA;
CHRIS BESSON; RICKY VERCHER; PATRICK HARRISON; SHANNON
BLACKWOOD; LYNN HALL; W. NEAL BATES; K. JOHNSON; CHRIS
RYDER; DOUG ALFRED; LOREN LAMPERT; JIMMY HAY; LEE LEACH;
ANDY VAN DYKE; JAMES C. DOWNS; UNKNOWN OFFICERS,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CV-3222
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-30627 Document: 00513826493 Page: 2 Date Filed: 01/09/2017
No. 16-30627
This appeal arises from the search and seizure of stolen goods from a pawn
shop in Alexandria, Louisiana. Plaintiffs-Appellants brought section 1983
claims against Defendants-Appellees. The district court granted summary
judgment against Plaintiffs-Appellants. Because Plaintiffs-Appellants’ appeal
from the grant of summary judgment was not timely filed, those claims were
dismissed by an earlier order of this court. Defendants-Appellees also moved
for and were awarded attorney’s fees under section 1988. The district court’s
grant of Defendants-Appellees’ attorney’s fees is the sole issue before us. For
the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Silver Dollar Pawn and Jewelry (“Silver Dollar”) is a sole proprietorship
in which Jimmie and Peggy DeRamus have an ownership interest. They, along
with their daughter, Tammie DeRamus-Credeur, and Jimmie’s brother,
Johnnie DeRamus (collectively, “the DeRamuses”), were the stars of the short-
lived reality TV program “Cajun Pawn Stars.” The DeRamuses brought
numerous section 1983 claims against the City of Alexandria (“the City”), the
Alexandria Police Department (“APD”), members of the police force, and
members of the Rapides Parish District Attorney’s Office (collectively,
“Defendants-Appellees”), which all relate to the recovery of stolen power
equipment from Silver Dollar.
On June 11–12, 2014, Silver Dollar purchased several items from
Brandon Allison, including a sewer snake. These transactions were
secondhand sales, not pawns. On June 23, 2014, Kendal Bakies informed the
APD that several pieces of equipment had been stolen from his home. Bakies
2
Case: 16-30627 Document: 00513826493 Page: 3 Date Filed: 01/09/2017
No. 16-30627
had conducted his own investigation 1 and stated that he had seen his sewer
snake at Silver Dollar. He provided Officer Chris Besson with the sewer
snake’s box, which had the serial number on it. Officer Besson and an officer-
in-training went to Silver Dollar to investigate. Officer Besson questioned the
employee on duty about the sewer snake, and he asked if he could inspect it.
The employee agreed and took officer Besson to the sewer snake. When
Jimmie DeRamus—who describes himself as an expert on Louisiana pawn
law—discovered that police officers were at the business, he became irate, told
the officers that only a detective could inspect a pawn shop, and demanded that
they leave.
The next day, Detective Shannon Blackwood was assigned to the case
and told by her supervisor, Sargent Ricky Vercher, to obtain a warrant for
Bakies’s stolen items. After receiving the warrant, APD officers went to Silver
Dollar. Jimmie DeRamus refused to let officers conduct a consensual search,
so the officers executed the warrant. The DeRamuses did not cooperate with
the officers. Jimmie DeRamus told the officers that they could not take the
sewer snake, and initially refused to assist the officers in finding the
paperwork relating to the stolen equipment. Because of the DeRamuses’
refusal to cooperate, officers were told to shut down and secure Silver Dollar’s
back room to complete their search for the stolen items. Johnnie DeRamus,
who repeatedly refused the officers’ demand to leave the secure area, was
arrested for interfering with a law enforcement investigation, but he was
released after receiving a citation. The APD’s search located the sewer snake,
along with a weedeater, chainsaw, and pole saw belonging to Bakies. Detective
1Bakies went to Silver Dollar and asked about purchasing a sewer snake, without
revealing that he was searching for his stolen one. After inspecting the sewer snake and
confirming it was his, he left Silver Dollar and contacted the APD to report the stolen sewer
snake.
3
Case: 16-30627 Document: 00513826493 Page: 4 Date Filed: 01/09/2017
No. 16-30627
Blackwood stated that she forgot to give Silver Dollar restitution forms due to
the chaos that ensued during the search but that she returned to provide the
forms a few days later.
After the seizure, Bakies inquired about the return of the stolen items,
stating that he needed them for his job. Detective Blackwood contacted the
District Attorney’s Office for a legal opinion on whether the APD could release
the stolen goods. The District Attorney’s Office instructed Officer Blackwood
that she could return the stolen items to Bakies, provided he had the receipt
and serial numbers. Bakies also agreed not to dispose of the items until the
investigation was complete. Bakies’ ownership of the property was never
disputed. Brandon Allison pled guilty to possession of stolen goods, and he was
ordered to pay restitution to Silver Dollar.
On October 6, 2014, the DeRamuses filed this section 1983 action against
Defendants-Appellees. They alleged numerous violations of various statutory
and constitutional rights stemming from the search and seizure of Bakies’
stolen equipment.
After discovery was completed, the district court granted multiple
motions for summary judgment in favor of Defendants-Appellees, which
resulted in the dismissal of all the Plaintiffs-Apellants’ claims. Because the
DeRamuses did not timely appeal from those judgments, this court dismissed
the appeal from the grants of summary judgment. The district court also
granted three motions for attorney’s fees: (1) one on behalf of the City of
Alexandria, Loren Lampert, Jimmy Hay, Lee Leach, Doug Alfred, Ricky
Vercher, Patrick Harrison, Lynn Hall, W. Neal Bates, Klien Johnson, Chris
Besson, and Chris Ryder; (2) one on behalf of Shannon Blackwood, and (3) one
on behalf of James C. Dows/Phillip Terrell, District Attorney for Rapides
Parish, and Andy Van Dyke, Assistant District Attorney. The district court’s
grant of attorney’s fees is the only issue before us.
4
Case: 16-30627 Document: 00513826493 Page: 5 Date Filed: 01/09/2017
No. 16-30627
II. ANALYSIS
We review the district court’s imposition of attorney’s fees for abuse of
discretion. Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). “A
district court abuses its discretion if it: (1) relies on clearly erroneous factual
findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to
the facts.” Combs v. City of Huntington,
829 F.3d 388, 391 (5th Cir. 2016)
(quoting Allen v. C & H Distribs., LLC,
813 F.3d 566, 572 (5th Cir. 2015)).
Section 1988 provides that “the court, in its discretion, may allow the
prevailing party [in a section 1983 action] . . . a reasonable attorney’s fee.” 42
U.S.C. § 1988. Although attorney’s fees for prevailing plaintiffs are almost
always awarded, attorney’s fees for defendants are only awarded “upon a
finding that that the plaintiff’s action was frivolous, unreasonable, or without
foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg
Garment Co. v. EEOC,
434 U.S. 412, 421 (1978)). When determining whether
to award attorney’s fees to defendants, we consider as factors (1) whether the
plaintiffs established a prima facie case; (2) whether the defendants offered to
settle; and (3) whether the court held a trial on the merits.
Myers, 211 F.3d at
292. Still, we must look at the underlying suit to determine whether the
“action was vexatious, frivolous, or without foundation . . . because the mere
dismissal of the plaintiffs[’] suit will not establish that the underlying claim
was frivolous, unreasonable, or groundless.” Dean v. Riser,
240 F.3d 505, 512
(5th Cir. 2001). A finding that the plaintiff “brought or continued such a claim
in bad faith” provides “an even stronger basis for charging him with the
attorney’s fees incurred by the defense.”
Christiansburg, 434 U.S. at 422.
A review of the record reveals that the DeRamuses’ claims against all
Defendant-Appellees were frivolous, unreasonable, or groundless, and
therefore the district court did not abuse its discretion in awarding attorney’s
fees.
5
Case: 16-30627 Document: 00513826493 Page: 6 Date Filed: 01/09/2017
No. 16-30627
1. City’s Motion
a. Claims of Inadequate Training and Supervision
Jimmie and Peggie DeRamus alleged section 1983 violations based on
City policy and inadequate training or supervision by Police Chief Lampert
and Deputy Chief Hay. With respect to these claims, the district court noted
that the DeRamuses failed to provide “testimony or evidence” to establish any
element of these claims. 2 It found that nothing done by the City, Lampert, or
Hay “would have reasonably been believed to violate a constitutional right”
under federal or state law. Additionally, the DeRamuses were put on notice
that these claims lacked any merit when the Defendants-Appellees specifically
requested by letter that these claims be withdrawn due to a lack of evidence.
Indeed, the DeRamuses did not even reply to the motion for summary
judgment on these issues. Without any testimony or evidence presented by the
DeRamuses, “there is no basis from which to say these claims were not
frivolous.” Myers, 211 F.3d at 293.
b. Claims Relating to the June 23rd Search
Jimmie and Peggie DeRamus claimed that Officer Besson conducted an
illegal search and seizure of Silver Dollar on June 23, 2015. Although a
“warrant must generally be secured” before a search, this “requirement is
subject to certain reasonable exceptions.” Kentucky v. King, 563 U.S. 452, 459
(2011). We agree with the district court that the DeRamuses’ claims of an
illegal search and seizure against Officer Besson were frivolous. Despite citing
a number of state laws governing the warrantless inspection of pawn shops
2 See Board of Cty Com’rs of Bryan Cty v. Brown, 520 U.S. 397, 403–04 (1997) (a City’s
liability under section 1983 requires (1) a policy, practice, or custom that was improper; (2)
deliberate indifference; and (3) a causal link to the alleged injuries); Roberts v. City of
Shreveport, 397, F.3d 287, 291–92 (5th Cir. 2005) (failure to train requires (1) a failure to
train; (2) deliberate indifference, which requires a pattern of violations; and (3) a causal
connection to the alleged violation).
6
Case: 16-30627 Document: 00513826493 Page: 7 Date Filed: 01/09/2017
No. 16-30627
and their records that Officer Besson is alleged to have violated, the
DeRamuses never rebutted the fact that the employee on duty consented to
Officer Besson’s request to inspect the sewer snake. Further, no property was
seized on June 23rd. Moreover, the district court noted that the laws governing
secondhand dealers do in fact permit a warrantless search of this heavily
regulated industry. See La. R.S. Ann. 37:1785 (stating that a pawnbroker
acting as a secondhand dealer shall be subject to the requirements of
secondhand dealers, other than licensing or bonding requirements). Louisiana
Revised Statutes 37:1867 provides that “[d]uring thirty calendar days after
purchase . . . . In all instances, a secondhand dealer shall make the item
immediately available upon request by a state law enforcement agency.” La.
R.S. Ann. 37:1867. Therefore, the DeRamuses did not even make out a prima
facie case against Officer Besson, and the district court did not abuse its
discretion when it determined that these claims were frivolous.
c. Claims Relating to the Execution of the Search Warrant
Next, Jimmy and Peggie DeRamus made several federal and state
constitutional claims against members of the APD who aided in the execution
of the search and seizure warrant. These claims concerned Sergeants Bates
and Vercher, and Detectives Alford, Hall, Harrison, and Ryder. The
DeRamuses claimed these officers were responsible for (1) an illegal search and
seizure under the Fourth Amendment, (2) a violation of Due Process under the
Fourteenth Amendment, and (3) analogous violations under the Louisiana
constitution. Once again, the district court found that the DeRamuses failed
to make even a prima facie showing that their rights were violated because the
officers acted pursuant to a valid search and seizure warrant.
The DeRamuses rely on Louisiana Revised Statutes 37:1805, which
details the procedures for the warrantless seizure of an allegedly stolen item
from a pawnbroker. The district court found that this statute did not apply to
7
Case: 16-30627 Document: 00513826493 Page: 8 Date Filed: 01/09/2017
No. 16-30627
secondhand sales because it refers specifically to “pawnbrokers” and “the
pledgor,” not to sales. 3 La. R.S. Ann. 37:1805. Even assuming that this statute
applies to secondhand sales, a statute meant to provide for the warrantless
seizure of property cannot nullify a valid warrant based on probable cause. Cf.
New York v. Burger, 482 U.S. 691, 702–03 (1987) (stating that a warrant
“fulfill[s] the traditional Fourth Amendment standard of reasonableness” and
that any warrantless inspection “must perform the two basic functions of a
warrant”)(internal citation omitted). As the district court noted, the “search
warrant was obtained because of Jimmie DeRamus’s uncooperative
demeanor.” Had the DeRamuses complied with Officer Besson’s request to
perform a warrantless inspection pursuant to Revised Statutes 37:1867, a
search and seizure warrant would not have been necessary. Because officers
executed a valid warrant that only issued because the DeRamuses did not
comply with their statutory duty, the district court did not abuse its discretion
finding that these claims were frivolous.
d. Tammie DeRamus-Credeur’s Claims
We additionally hold that Tammie DeRamus-Credeur’s claims were
frivolous. Tammie DeRamus-Cedeur brought claims for (1) Due Process
violations under the state and federal constitutions (2) a civil rights violation
against the City for the behavior of its officers, (3) supervisor liability, and (4)
punitive damages. As the district court noted, Tammie DeRamus-Credeur has
no ownership interest in Silver Dollar pawn. Thus, she had no liberty or
3 No other state or federal court has examined whether Revised Statutes 37:1805
applies to secondhand sales made by pawnbrokers, and the merits of this determination are
not on appeal before us. The case the DeRamuses rely upon to demonstrate that Revised
Statutes 37:1805 provides them a due process right does not speak to that point. Top Dollar
Pawn, Gun, & Car Audio No. 5, LLC v. Shaw, 626 Fed. App’x 475 (5th Cir. 2015). In Top
Dollar Pawn, this court did not reach the merits of the underlying claims because we found
that the statute of limitations had run. Id. at 477. Moreover, that case dealt with the seizure
of pawned items, not items sold secondhand.
Id.
8
Case: 16-30627 Document: 00513826493 Page: 9 Date Filed: 01/09/2017
No. 16-30627
property interest in the store, and so she could not have suffered a Due Process
violation under the federal or state constitutions. With regard to her other
claims, she “failed to produce evidence to establish any element of her
claim[s].” For the same reasons these claims were frivolous when filed by
Jimmie and Peggie DeRamus, they are frivolous when filed by Tammie
DeRamus-Credeur. In fact, she did not even file a response to the Motion for
Summary Judgment against her. Therefore, the district court did not abuse
its discretion in determining that her claims against the City and the APD
were frivolous.
e. Johnnie DeRamus’s Claims
Johnnie DeRamus, like Tammie DeRamus-Credeur, had no property
interest in Silver Dollar. To the extent Johnnie DeRamus’s claims mirror those
of the other family members, we hold that they are frivolous for the same
reasons. 4 We also hold that Johnnie DeRamus’s claim of an illegal arrest are
frivolous. The record reflects that it was Johnnie DeRamus’s refusal to comply
with multiple requests from Officer Harrison to clear the search area that
resulted in his arrest for interfering with a law enforcement investigation and
resisting an officer. See La. R.S. Ann. 14:329 (interfering with a law
enforcement investigation), 14:108 (resisting an officer). Despite bringing
claims against twelve members of the APD, Officer Harrison was the only one
involved in his arrest. Johnnie DeRamus has also failed to provide any support
for his claim that Officer Harrison arrested him to intimidate his brother. And
Johnnie DeRamus failed to produce any evidence that Officer Harrison was
negligent when he handcuffed him and placed him in the police car.
4 Defendants-Appellees in a letter requested that Johnnie DeRamus drop all claims
not relating to his arrest prior to filing a motion for summary judgment against him, but it
was only in his response to the motion that he stated he was contesting only the claims
relating to his arrest.
9
Case: 16-30627 Document: 00513826493 Page: 10 Date Filed: 01/09/2017
No. 16-30627
For these reasons, we conclude that the court did not abuse its discretion
in determining that Johnnie DeRamus’s claims were frivolous, and we uphold
the court’s grant of attorney’s fees to the City.
2. Detective Blackwood’s Motion
In addition to the claims made against other members of the APD, the
DeRamuses asserted that Detective Blackwood (1) knowingly made false
statements when procuring the warrant and (2) violated their statutory and
constitutional rights when she returned the power equipment to Bakies. The
DeRamuses did not specify to the court below what information was false, and
the affidavit and warrant provided to the judge do not contain any false
statements. This claim was frivolous.
Although the DeRamuses had property rights in the power equipment
seized at the store, we do not agree that they have asserted any violation of
those rights. Once again, the DeRamuses cite Louisiana Revised Statutes
37:1805 as the basis for the violation of their rights. As we already noted, APD
seized these items pursuant to a valid warrant. The district court determined
that Revised Statutes 37:1805 does not apply to secondhand sales, and that
decision is not before us. But assuming that the statute applies, Revised
Statutes 37:1805(C)(1) provides that “[w]hen ownership of a thing is disputed,
final determination as to ownership for the purposes of this Part shall be made
in either a civil or criminal proceeding filed in a Louisiana court of competent
jurisdiction.” (emphasis added). When dismissing the DeRamuses’ claims
against Detective Blackwood on summary judgment, the district court noted
“[s]ignificantly, . . . plaintiffs have not disputed that Bakies is the rightful
owner.” Bakies also agreed not to dispose of the property until the criminal
proceeding concluded. Moreover, Detective Blackwood consulted the District
Attorney’s Office when releasing the property, which the district court
determined entitled her to qualified immunity. Based on these findings, the
10
Case: 16-30627 Document: 00513826493 Page: 11 Date Filed: 01/09/2017
No. 16-30627
district court concluded that no prima facie case existed against Detective
Blackwood, and the factors considered by this court counselled in favor of
awarding attorney’s fees. See Myers, 211 F.3d at 292.
We cannot say that the district court abused its discretion when it found
that the claims against Detective Blackwood were frivolous.
3. Office of the District Attorney’s Motion
The DeRamuses’ section 1983 claims against the Rapides Parish District
Attorney, James Downs/Phillip Terrell, were clearly frivolous. The District
Attorney’s Office warned the DeRamuses in a letter dated March 12, 2015 that
there was no evidence the District Attorney had any involvement in the case
and that a theory of respondeat superior is not allowed in section 1983 cases.
Still, the DeRamuses continued to press these claims until January 4, 2016,
after the District Attorney’s Office filed for summary judgment on December
14, 2015.
The district court also found the claims brought against Assistant
District Attorney Van Dyke frivolous. The district court dismissed all claims
against Van Dyke on the basis of qualified immunity after finding that the
advice he provide to the APD was not “a constitutional violation of plaintiffs’
rights.” The DeRamuses again rely on Louisiana Revised Statutes 37:1805 to
make their argument that their claims were not frivolous. Again, even
assuming that Revised Statutes 37:1805 applies to secondhand sales, the
DeRamuses failed to assert a violation of their rights under the statute.
Detective Blackwood only asked Van Dyke whether seized property could be
returned to its rightful owner. The letter sent by Van Dyke—who was unaware
of any ownership dispute—stated that “[a]s our office does not have a case file
yet, our office makes no comment or judgment concerning the seizure of
evidence from wherever it was seized from [sic]. Our office is relying on the
[p]olice investigation to establish the rightful owner of the property.” Van
11
Case: 16-30627 Document: 00513826493 Page: 12 Date Filed: 01/09/2017
No. 16-30627
Dyke did not recommend an unconditional transfer of ownership of the
property back to Bakies, and Bakies was instructed not to dispose of the
property until cleared to do so.
We therefore hold that the district court did not abuse its discretion
when it determined that the claims against the Rapides Parish District
Attorney’s Office were frivolous.
4. Calculation of Attorney’s Fees
The DeRamuses admit that they “d[o] not challenge the amount of
attorney’s fees claimed, the amount awarded, or the apportionment made
between [themselves] in the award.” Having not raised these issues, the
DeRamuses have waived them. 5 See Adams v. Unione Mediterranea Di
Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised or inadequately
briefed on appeal are waived.”). Thus we uphold the district court’s calculation
of attorney’s fees.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the award of attorney’s fee to the
Defendants-Appellees.
5We do note that the district court applied this court’s two-step process when
awarding attorney’s fees by (1) calculating the lodestar and (2) determining whether any of
the Johnson factors warrant an upward or downward departure from the lodestar. See
Combs v. City of Huntington, 829 F.3d 388, 391–92 (5th Cir. 2016).
12
