Revised January 24, 2002

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                           No. 00-30710
                       _____________________




     DEBORAH MORRIS

                                         Plaintiff - Appellant

          v.


     DILLARD DEPARTMENT STORES, INC; ET AL
                                        Defendants
     DILLARD DEPARTMENT STORES, INC;
     LIBERTY MUTUAL INSURANCE CO;
     R.W. BROWN; CITY OF BOSSIER CITY
                                        Defendants - Appellees

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
_________________________________________________________________

                         December 26, 2001

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.

KING, Chief Judge:

        On claims asserting discrimination, unlawful search and

seizure, malicious prosecution, false arrest, false imprisonment,

and intentional infliction of emotional distress, arising from

the detention, arrest and search of the plaintiff on suspicion of

shoplifting, the district court granted summary judgment in favor
of all defendants on all claims.       For the following reasons, we

AFFIRM.

                 I.   FACTUAL AND PROCEDURAL HISTORY

     Plaintiff-Appellant Deborah Morris, an African-American,

appeals from the district court’s grant of summary judgment in

favor of Defendants-Appellees Dillard Department Stores,

Incorporated (“Dillard’s”), Dillard’s insurer, Liberty Mutual

Insurance Company (“Liberty”), and police officer R.W. Brown on

all constitutional and state law claims brought by Morris.      On

March 13, 1998, Morris and a friend, Maxine Crawley, were in

Dillard’s.    Officer Brown was off-duty that day from his job as a

municipal police officer for City of Bossier City (“the City”)

and working as a private security guard for Dillard’s.      Brown

wore his police uniform while working as a private guard, as

required by the City.    An employee of Dillard’s, Meshell Maxey,

reported to Dillard’s security that she observed a suspected

shoplifter.   When Brown responded to Maxey’s report, he obtained

Maxey’s description of what she observed and Maxey’s

identification of Morris as the suspect.      Maxey’s account

included that Maxey saw Morris conceal a shirt under her jacket

and then replace the merchandise during the time Maxey called for

security.    Officer Brown subsequently followed Morris and Crawley

through the store for some time and then out to the parking lot.

In the parking lot, as Morris and Crawley sat in their car, Brown



                                   2
copied down the car’s license plate number and returned to the

store.   At no point before Brown returned to the store, did he

attempt to confront, question, detain, search, or arrest Morris

or Crawley.   Morris and Crawley subsequently returned to the

store and confronted Brown.    Brown then arrested Morris,

handcuffed her, and led her through the store to the security

office where she was held and subsequently searched by a female

police officer called to the scene.       Morris was transported to

the police station and “booked.”       Officer Brown filled out a

municipal police “Incident Report” detailing the eyewitness

account Brown had obtained from Maxey, as well as his following

and observing Morris, his notation of the license plate, and the

subsequent arrest.

     Morris filed suit in state court against Dillard’s, Liberty,

and Officer Brown.   The suit was subsequently removed to federal

court.   Against Dillard’s and Liberty, Morris brought claims

pursuant to 42 U.S.C. § 1983 (1994), alleging false arrest and

unlawful search and seizure in violation of the Constitution.

She also alleged a violation of 42 U.S.C. § 1981 (1994), on the

basis of her race, of her right to make and enforce contracts,

and various state law claims for false arrest, false

imprisonment, malicious prosecution, and intentional infliction

of emotional distress.   Morris also sued Brown in his individual

capacity under 42 U.S.C. § 1983 alleging false arrest and

unlawful search and seizure.     On May 3, 2000, the district court

                                   3
granted summary judgment to all defendants on all claims.1

Morris now timely appeals the district court’s summary judgment

in favor of Dillard’s and Liberty on the § 1983, § 1981, and

state law claims, as well as the court’s summary judgment in

favor of Brown on the § 1983 claim.

                      II.   STANDARD OF REVIEW

     This court reviews a grant of summary judgment de novo,

applying the same standards as the district court.      See Horton v.

City of Houston, 

, 191 (5th Cir. 1999) (citing

Celotex Corp. v. Catrett, 

, 322-24 (1986)).     Summary

judgment is only proper where no material issue of fact exists as

to any element of the claim.   FED.R.CIV.P. 56(c).   Where the non-

movant fails to show specific material facts in dispute, summary

judgment is appropriate.    

.

     III.   § 1983 CLAIM AGAINST DILLARD’S AND LIBERTY MUTUAL

     The district court granted summary judgment in favor of

Dillard’s and Liberty on Morris’s § 1983 claim alleging false

arrest and unlawful search and seizure in violation of the Fourth


     1
        An additional state tort claim of invasion of privacy,
as well as claims brought against another Dillard’s security
guard, Officer Greg Hart, were dismissed at Morris’s request and
thus are not before this court.
     A state law claim of defamation against Dillard’s based on
Maxey’s report to Brown of her concealment of the shirt was first
raised in Morris’s brief in opposition to defendants’ summary
judgment motion. There is no evidence of malice on the part of
Maxey, and the district court properly granted summary judgment
in favor of Dillard’s.


                                  4
Amendment because the court found that Dillard’s was not a state

actor as a matter of law.   As a threshold matter, for a plaintiff

to state a viable claim under § 1983 against any private

defendant, such as Dillard’s or Liberty, the conduct of the

private defendant that forms the basis of the claimed

constitutional deprivation must constitute state action under

color of law.    Lugar v. Edmondson Oil Co., Inc., 

,

924, 928-32 (1982).   The Supreme Court has recently reiterated

that the focus of the inquiry into whether a private actor can be

subjected to constitutional liability is whether “such a close

nexus between the State and the challenged action” exists “that

seemingly private behavior may be fairly treated as that of the

State itself.”   Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Assoc., 

, 295 (2001) (internal quotation

omitted).2   Our sister circuits have noted that the state action

doctrine is oft characterized by courts and commentators as “one

of the more slippery and troublesome areas of civil rights

litigation,” one which presents a “paragon of unclarity,”

Gallagher v. “Neil Young Freedom Concert”, 

, 1447

     2
        The “state action” and “under color of law” requirements
are technically distinct yet related requirements, and the
difference between them is implicated in a claim of joint action
by the state and a private defendant. See 

. Nonetheless, this court has collapsed the separate
requirements into a single inquiry in determining when a private
merchant may be subject to § 1983 liability as a state actor
based on the detention, arrest, or search of one of its
customers. See, e.g., Smith v. Brookshire Bros., Inc., 

, 94 (5th Cir. 1975) (per curiam).

                                  5
(10th Cir. 1995) (internal quotations and citations omitted), and

that this is “particularly true in the area of off-duty police

officers acting as security guards” for a private defendant, such

as Dillard’s.    Chapman v. Higbee Co., 

, 426 (6th Cir.

2001), reh’g granted, No. 99-3970, 

, at *1 (6th

Cir. Oct. 17, 2001).   The Supreme Court has likewise recognized

that the inquiry into whether private conduct bears sufficiently

close nexus to the state is highly circumstantial and far from

precise.    Brentwood 

(stating that

“[w]hat is fairly attributable is a matter of normative judgment,

and the criteria lack rigid simplicity” and that “[f]rom the

range of circumstances that could point toward the State behind

an individual face, no one fact can function as a necessary

condition across the board for finding state action”) (citations

omitted).

     This court has never before confronted the precise

circumstance of this case in the context of a § 1983 claim

brought against a private employer defendant, namely, one in

which an off-duty police officer is employed as a private

security guard and detains, searches or arrests the customer of

his private employer subsequent to a report of suspicion made by

another employee.   However, in five decisions, this court has

confronted analogous circumstances where either a merchant

employee, or on-duty police officers called to the merchant’s

premises, have detained, searched or arrested a customer, and the

                                  6
customer has filed a § 1983 claim against the merchant.     In those

decisions, this court has developed a consistent doctrine

applying a nexus-type test to determine when a private enterprise

such as Dillard’s may be subject to constitutional liability.

See Bartholomew v. Lee, 

, 63 (5th Cir. 1989);

Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 

, 772 (5th Cir. 1982) (per curiam); White v. Scrivner Corp.,

, 141 (5th Cir. 1979); Duriso v. K-Mart No. 4195 Div.

of S.S. Kresge Co., 

, 1277 (5th Cir. 1977) (per

curiam); Smith v. Brookshire Bros., Inc., 

, 94 (5th

Cir. 1975) (per curiam).   We first developed the test in

Brookshire, in which customers brought a § 1983 claim against a

merchant after a manager reported suspicion of shoplifting to

police, and the police then detained, fingerprinted, and “booked”

the customers.    

.   We held that in

order to subject the merchant to liability, plaintiffs had to

show that the police and the store managers were acting “in

concert; that [the private merchant] and the police had a

customary plan whose result was the detention in the present

case.”   

the requisite nexus in that case and

subjected the merchant to liability where we found that the

police and merchant maintained a pre-conceived policy by which

shoplifters would be arrested based solely on the complaint of

the merchant.    See 

                                     7
     We have refined application of the doctrine since Brookshire

in three subsequent decisions, White, Hernandez, and Bartholomew,

in which we established that a merchant is not a state actor

unless the conduct on the part of a guard or officer giving rise

to the claimed deprivation occurred based solely on designation

of suspicion by the merchant and was not accompanied by any

independent investigation by the officer.   See 

(declining to find state action on the part of a

defendant shopping mall where arresting officers made the arrest

of customers causing a disturbance based not only on the request

of mall security, but also on independent observation);

(upholding a bench verdict in favor

of a merchant on a § 1983 claim where the plaintiff was detained

in a store on suspicion of shoplifting, a police officer was

called to the scene, the officer performed an independent

investigation and arrested the plaintiff); 

(upholding a bench verdict in favor of a merchant on a

§ 1983 claim because unlike the police in Brookshire, the police

in White had a policy of conducting independent investigations to

make determinations to arrest and “did not customarily rely

solely on the merchants’ accusation”).   In our two most recent

decisions, Hernandez and Bartholomew, we clarified that the

“vice” exposed by this court in our two earliest cases,

Brookshire and Duriso, in which we found merchants to be state



                                8
actors, “was that the police, pursuant to a ‘preconceived plan,’

would arrest any person merely because he was designated for

arrest by the store [employee].”       

(citations omitted).     See also 

(explaining that the “crucial” focus of the inquiry is whether an

officer “acted according to a preconceived plan and on the say-so

of the private actor, not on the basis of [the officer’s] own

investigation”).

     We further clarified in Bartholomew and Hernandez that an

officer’s partial reliance on a report of suspicion made by a

merchant employee will not create state action where the officer

additionally performs an independent investigation of the alleged

crime.   See 

(finding that merchant

was not state actor because, although the officers’ determination

to arrest was not made “wholly based on any independent

observations of the officers,” the arresting officer testified

that she formed her determination to arrest on the independent

basis of “what she observed” regarding the alleged disturbance

after she arrived at the mall) (internal quotation omitted).        See

also 

.      Moreover, we established

that interviewing the employee to obtain an eyewitness account

can constitute sufficient independent investigation where the

officer was not an eyewitness to any conduct constituting an

alleged crime.     See 

“[u]nless he were an eye-

witness, a police officer could not make any arrest if he could

                                   9
not rely on information provided by citizens who witnessed the

events” and that “[s]uch reliance does not convert the informing

party into a state actor”).     In Hernandez, we noted evidence

demonstrating that, although the merchant’s “employees called the

police,” the “officer made his own investigation of the incident:

the officer interviewed defendant’s employees and plaintiff,

wrote out his own report, and made his own determination

concerning arrest.”    

    We thus held that the merchant

was not a state actor.    

five of this court’s

decisions beginning with Brookshire together indicates that we

will not subject a merchant to § 1983 liability unless an officer

has failed to perform independent investigation, and that

evidence of a proper investigation may include such indicators as

an officer’s interview of an employee, independent observation of

a suspect, and the officer writing his own report.

      Morris relies on Brookshire and Duriso to argue that the

district court erred in granting summary judgment to Dillard’s.

This reliance is misplaced.     Uncontroverted evidence indicates

that Officer Brown interviewed Maxey and obtained her eyewitness

account of observing Morris concealing a shirt and then returning

it.   Morris’s own deposition testimony indicates that Brown then

followed Morris and Crawley through the store, independently

observing them for some time subsequent to Maxey’s designation of

Morris as a suspect.   It is also uncontroverted that at the time

he arrested Morris, Brown filled out his own police incident

                                  10
report detailing his interview of Maxey, detailing his following

and observing Morris subsequent to that interview, as well as his

copying of the license, the confrontation, and the arrest.3

Brown further admits that he had made no determination to arrest

Morris directly subsequent to Maxey’s designation to him of

Morris as a suspect, nor after Morris exited the store, but that

he waited until after Morris confronted him to arrest her.    That

testimony underscores that it was not Maxey’s designation that

formed the sole basis of the arrest.   The total evidence fails to

evince the “vice” of either Brookshire or Duriso, but rather

indicates that Officer Brown performed an independent

investigation of the alleged crime that included obtaining

Maxey’s eyewitness report, independent observation of Morris, and

the completion of Brown’s own incident report.4   Under White,

Hernandez, and Bartholomew, therefore, Dillard’s is not a state

actor for the purposes of § 1983 liability.

     3
        There is further testimony in the record by Maxey that
she told Brown not to arrest Morris. However, because this
evidence is controverted by Brown’s testimony that he has no
knowledge of Maxey telling him not to arrest Morris, this
evidence cannot be considered in our review of summary judgment.
Regardless, such evidence is immaterial to our conclusion that
Brown made an independent investigation.
     4
        We note further evidence in the record indicating that
the City police department may have maintained a policy by which
officers were permitted to arrest shoplifters based on no more
than the report of suspicion by merchant employees. However,
under Bartholomew, any such policy fails to raise a material fact
issue where there is uncontroverted evidence that Brown made an
independent determination to arrest. See 

.

                               11
     Morris further argues that the fact that Brown’s conduct

complied with the Louisiana shoplifting statute, LA CODE CRIM.

PROC. ANN. art 215 (West 1991), creates a material issue of fact

as to whether Dillard’s was a state actor.    That statute permits

merchants to detain suspected shoplifters and permits “peace

officers” to arrest suspected shoplifters based solely on a

merchant’s “complaint.”   LA CODE CRIM. PROC. ANN. art 215.5   The

Supreme Court has held that a private party’s invocation of state

legal procedures does not constitute state action where the

procedure is permissive and not mandatory.    See 

n.21; Flagg Bros., Inc. v. Brooks, 

, 164-65

(1978).   Moreover, in both White and Hernandez, this court relied

on the reasoning of Flagg Bros. and expressly rejected a

plaintiff’s contention that a merchant’s compliance with the

Louisiana shoplifting statute creates state action on the part of

the merchant because article 215 permits merchant action, but

does not compel such action.   

; see also

     5
          The text of article 215 reads in relevant part:

     A.(1) A peace officer, merchant, or a specifically
     authorized employee or agent of a merchant, may use
     reasonable force to detain a person for questioning on
     the merchant’s premises ... when he has reasonable
     cause to believe that the person has committed a theft
     of goods .... (2) A peace officer may, without a
     warrant, arrest a person when he has reasonable grounds
     to believe the person has committed a theft of goods
     held for sale by a merchant .... A complaint made to a
     peace officer by a merchant or a merchant’s employee or
     agent shall constitute reasonable cause for the officer
     making the arrest.

                                 12


.   Consequently, Morris fails to

raise any material issue of fact as to whether Dillard’s was a

state actor based on the merchant’s compliance with article 215.6

The district court did not err, therefore, in granting summary

judgment in favor of Dillard’s and Liberty on the § 1983 claim.



         IV.   § 1981 CLAIM AGAINST DILLARD’S AND LIBERTY

     The district court granted summary judgment in favor of

Dillard’s and Liberty on Morris’s § 1981 claim, alleging that

Dillard’s interfered with Morris’s right to make or enforce a

contract with the merchant because of her race.   Morris’s claim

is based on the uncontroverted fact that Dillard’s banned Morris

from the store for a period subsequent to her arrest.   The court

found that Morris failed to show the loss of an actual contract


     6
        Morris further argues that the Eighth Circuit’s decision
in Murray v. Wal-Mart, Inc., 

, 558-59 (8th Cir.
1989), in which that court found a merchant to be a state actor,
counsels this court to find that Dillard’s was a state actor.
The court in Murray, however, based its determination in part on
that court’s finding that arresting officers had failed to
perform sufficient “independent investigation” prior to arrest
and full prosecution of the suspect. See 

. Although this court might disagree with the determination
of the Murray court as to whether an independent investigation
adequate to preclude § 1983 liability occurred, the holding of
the case is consistent with our doctrine that, absent an
independent investigation by an officer, a merchant may under
some circumstances be subject to § 1983 liability. Moreover, the
Murray court relied additionally on an Arkansas state law
permitting merchant detention of shoplifters as a factor creating
the required nexus between the state and a merchant, see 

we specifically rejected in White and Hernandez. We
find Morris’s reliance on Murray unpersuasive.

                                 13
interest and failed to offer any evidence that Dillard’s took any

action against her based on her race.7   To sustain a § 1981

claim, Morris must establish three elements: (1) that she is a

member of a racial minority; (2) that Dillard’s had intent to

discriminate on the basis of race; and (3) that the

discrimination concerned one or more of the activities enumerated

in the statute, in this instance, the making and enforcing of a

contract.   Bellows v. Amoco Oil Co., 

, 274 (5th Cir.

1997).   Moreover, a plaintiff must establish the loss of an

actual, not speculative or prospective, contract interest.     See,

e.g., 

(denying recovery under § 1981 to a plaintiff

who “failed to present any evidence that [the defendant] did in

fact interfere with the contract”); Phelps v. Wichita Eagle-

Beacon, 

, 1267 (10th Cir. 1989) (affirming dismissal

of a § 1981 claim where a plaintiff alleged merely “possible loss

of future opportunities”).   Morris contends that the fact that

she was banned from Dillard’s following her arrest constitutes

the requisite loss of actual contract interest.   We agree with

the district court, however, that such a ban is insufficient to

constitute the loss of an actual contract interest.

     7
          Morris contends that the district court erred in
finding that Morris failed to offer any evidence of racial
discrimination because the court failed to properly consider her
motion to compel discovery on the issue of whether Dillard’s
engaged in a pattern of discrimination. Because we find that the
district court did not err in finding that Morris failed to show
evidence of the loss of any actual contract interest, we need not
address this argument.

                                14
     This court has never confronted a § 1981 claim brought

against a merchant in the retail context.   Other courts that have

considered such claims have consistently rejected them as too

speculative where a plaintiff makes allegations of the mere

possibility that a retail merchant would interfere with a

customer’s attempt to contract in the future.   See Morris v.

Office Max, Inc., 

, 414-15 (7th Cir. 1996) (rejecting

a plaintiff’s § 1981 claim asserting that a merchant interfered

with his “prospective contractual relations” where the plaintiff

had completed a purchase prior to being detained, despite the

fact that the plaintiff was examining additional goods with

intent to purchase at the time he was detained) (internal

quotation omitted); Youngblood v. Hy-Vee Food Stores, Inc., 

, 853-55 (8th Cir. 2001) (holding that where a plaintiff

purchased some beef jerky and was arrested for concealing other

goods, the merchant “cannot be said to have deprived [the

plaintiff] of any benefit of any contractual relationship, as no

such relationship existed” at the time of the arrest because

“nothing that happened after the sale created any further

contractual duty on [the merchant’s] part”); Hickerson v. Macy’s

Dep’t Store at Esplanade Mall, No. CIV. A. 98-3170, 

, at *2 (E.D. La. Mar. 16, 1999) (holding that a plaintiff

was not “prevented from making a particular purchase, or from

returning [goods] he had previously bought” and thus granting

summary judgment in favor of a merchant because “[t]here is no

                               15
generalized right under section 1981 to have access to

opportunities to make prospective contracts”).   In contrasting

circumstances, where a customer has engaged in an actual attempt

to contract that was thwarted by the merchant, courts have been

willing to recognize a § 1981 claim.   See Christian v. Wal-Mart

Stores, Inc., 

, 874 (6th Cir. 2001) (“[W]e have no

trouble concluding that [plaintiff] made herself available to

enter into a contractual relationship for services ordinarily

provided by Wal-Mart: the record reflects that she had selected

merchandise to purchase ... and would, in fact, have completed

her purchase had she not been asked to leave the store.”);

Henderson v. Jewel Food Stores, Inc., No. 96 C 3666, 

, at *3-4 (N.D. Ill. Oct. 23, 1996) (holding that “a § 1981

claim must allege that the plaintiff was actually prevented, and

not merely deterred, from making a purchase or receiving service

after attempting to do so,” and finding a plaintiff’s allegation

sufficient to sustain a § 1981 claim where the “plaintiff was

midstream in the process of making a contract for [a] goods

purchase” at a cashier at the time an officer arrested him).

Consequently, to raise a material issue of fact as to her § 1981

claim, Morris must offer evidence of some tangible attempt to

contract with Dillard’s during the course of the ban, which could

give rise to a contractual duty between her and the merchant, and

which was in some way thwarted.



                                  16
     Morris fails to offer any such evidence.   It is

uncontroverted that Morris left Dillard’s of her own accord

without attempting to make any purchase, or to engage in any

other transaction with Dillard’s prior to, during, or subsequent

to her detention and arrest by Officer Brown.   It is likewise

uncontroverted that Dillard’s banned Morris from the premises

after her arrest and that the ban was subsequently lifted.

Morris points to no evidence in the record indicating that she

made any tangible attempt to purchase, or to return, specified

goods at the store, or to enter any other contractual agreement

with Dillard’s, at any time during the course of the ban.     We

agree with the district court, therefore, that Morris’s

allegations based on the ban alone are too speculative to

establish loss of any actual contractual interest owed to her by

Dillard’s.   Thus, the district court did not err in granting

summary judgment in favor of Dillard’s and Liberty on the § 1981

claim.

              V.   § 1983 CLAIM AGAINST OFFICER BROWN

     The district court granted summary judgment to Officer Brown

on Morris’s § 1983 claim against him individually, which alleged

false arrest and unlawful search and seizure.   The court found

that Brown is entitled to qualified immunity from suit based on

his reliance on article 215, a Louisiana statute that authorizes

arrest of a shoplifter where an officer has probable cause for



                                 17
the arrest.   See LA CODE CRIM. PROC. ANN. art 215.8   That statute

further permits an officer to form probable cause for the arrest

based on the “complaint” of suspicion of “theft” made by a

merchant’s employee.   

held that Brown could not

have known he was violating Morris’s established constitutional

right to be free from arrest and search without probable cause.

     Police officers, like other public officials acting within

the scope of their official duties, are shielded from claims of

civil liability, including § 1983 claims, by qualified immunity.9

See Harlow v. Fitzgerald, 

, 815-19 (1982).       This

court applies a two-step analysis to determine whether an officer

is entitled to qualified immunity from federal suit.       First, we

determine whether a plaintiff has alleged a violation of a

clearly established constitutional right, and second, whether the

officer’s conduct was “objectively reasonable in light of clearly

established law at the time of the alleged violation.”       Chiu v.


     8
        The statute uses the phrase “reasonable cause” not
probable cause. However, Louisiana courts have recognized that,
in the case of a merchant detaining a suspect, article 215
requires something less than probable cause, but an officer is
not relieved of the duty to form “probable cause” when making an
arrest. See, e.g., Townsend v. Sears, Roebuck & Co., 

, 677 (La. Ct. App. 1985) (“‘Reasonable cause’ under article
215 is not synonymous with probable cause, when a detention [by a
merchant], rather than an arrest [by a peace officer] is
involved.”).
     9
        The parties do not dispute that when Officer Brown
arrested Morris, his conduct constituted state action under color
of law for the purposes of the § 1983 claim brought against him
in his individual capacity.

                                  18
Plano Indep. Sch. Dist., 

, 343 (5th Cir. 2001)

(internal   quotations and citations omitted).    This court has

divided the first prong of this inquiry into three

determinations:   1) whether the plaintiff alleges a deprivation

of a constitutional right; 2) whether the right was clearly

established at the time of the alleged violation; and 3) whether

the defendant actually violated that right.      See 

do not dispute that Morris has alleged deprivation of her clearly

established right to be free from arrest and search without

probable cause, or that the right was clearly established at the

time of her arrest.   The parties only dispute whether Brown had

probable cause.

     An officer’s entitlement to qualified immunity based on

probable cause is difficult for a plaintiff to disturb.       See

Brown v. Lyford, 

, 190, n.7 (5th Cir. 2001) (holding

that “[a] plaintiff must clear a significant hurdle to defeat

qualified immunity” and that there “must not even arguably be

probable cause for the search and arrest for immunity to be

lost”) (internal quotation omitted).   Thus “if officers of

reasonable competence could disagree on whether or not there was

probable cause to arrest a defendant, immunity should be

recognized.”   Gibson v. Rich, 

, 277 (5th Cir. 1995)

(citation omitted).   It is established law within this circuit

and others that an officer not present at the time of an alleged

crime may form probable cause sufficient to entitle that officer

                                19
to qualified immunity where the officer interviews an eyewitness

to the alleged crime.   See United States v. Burbridge, 

, 778 (5th Cir. 2001).   In Burbridge, we held:

     An ordinary citizen’s eyewitness account of criminal
     activity and identification of a perpetrator is
     normally sufficient to supply probable cause ...
     “unless, at the time of the arrest, there is an
     apparent reason for the officer to believe that the
     eyewitness was lying, did not accurately describe what
     he had seen, or was in some fashion mistaken regarding
     his recollection of the confrontation.”

v. Schebil, 

, 370 (6th Cir.

1999)) (internal citations omitted).   See also J.B. v. Washington

County, 

, 930 (10th Cir. 1997) (“[I]f it seems

reasonable to the police to believe that the [ordinary citizen]

eyewitness was telling the truth, they need not take any

additional steps to corroborate the information regarding the

crime before taking action.”).   Therefore, Brown was reasonably

entitled to rely on Maxey’s eyewitness account of an alleged

theft and her identification of Morris as the suspect to form

probable cause to arrest, absent any alleged facts that could

have given him reason to question the account.

     Morris concedes on appeal that Officer Brown is protected

from civil liability due to qualified immunity if an employee

made a complaint to him of “theft” of goods forming the basis of

probable cause.   Additionally, Morris does not claim that Brown

had any reason to question the veracity of Maxey’s eyewitness




                                 20
account or identification of Morris as a suspect.10   Morris

contends only that no report of theft was made that could have

formed the basis of probable cause.   This contention is contrary

to Louisiana law.

     The Louisiana theft statute at issue reads in relevant part:


     A. Theft of goods is the misappropriation or taking of
     anything of value which is held for sale by a merchant,
     ... without consent of the merchant to the
     misappropriation or taking .... An intent to deprive
     the merchant permanently of whatever may be the subject
     of the misappropriation or taking is essential and may
     be inferred when a person: (1) Intentionally conceals,
     on his person or otherwise, goods held for sale.


LA REV. STAT. ANN § 14:67.10 (West 1997).

Louisiana appellate courts have, at least twice, interpreted this

statute to mean that a theft includes concealment of goods by a

suspect, regardless of whether the suspect may have subsequently

returned the goods to the merchant prior to exiting the premises.

See Brown v. Hartford Ins. Co., 

, 180-82 (La. Ct.

App. 1979) (holding that a jury could have found that a store

     10
        Morris does contest whether Maxey could have in fact
observed Morris conceal a shirt because Morris claims she never
concealed any goods on her person. This contention is
immaterial, however. Whether the crime actually occurred or
whether a suspect is eventually convicted is irrelevant to the
probable cause analysis. The inquiry focuses only on what the
officer could have reasonably believed at the time based on the
relevant law, as well as the facts supplied to him by the
eyewitness. See, e.g., Sorenson v. Ferrie, 

, 328 n.3
(5th Cir. 1998) (“The Constitution does not guarantee that only
the guilty will be arrested. If it did, § 1983 would provide a
cause of action for every defendant acquitted--indeed, for every
suspect released.”) (internal quotation omitted).

                                21
employee had reasonable cause to believe a theft occurred,

pursuant to section 14:67, where employees observed the suspect

conceal a good in her purse then place the good on a chair

beneath her in an attempt to abandon the good prior to exiting

the store).   The court in Hartford Insurance further held that

the theft occurred at the moment of the taking, and the fact that

[the suspect] later ‘ditched’ the [good]” would not only be

“irrelevant,” but also an “incriminating factor” indicating

intent of theft.   

State v. Ellis, 

, 617-18 (La. Ct. App. 1993), a Louisiana appellate court held

that, pursuant to section 14:67, “[o]ne who takes the property of

another, intending at the time of the taking to permanently

deprive the owner of that property, is nonetheless guilty of the

crime of theft though she later, becoming frightened or having a

change of heart, decides to return it and does so.”

Consequently, under the interpretation of the theft statute

adopted by Louisiana appellate courts, it was reasonable for

Officer Brown to believe that the conduct described to him by

Maxey comprised an allegation of theft and thus, because he

obtained an eyewitness report, that he had probable cause to

arrest.11

     11
          Morris claims that four decisions by other courts
compel a finding that Brown lacked probable cause. However, all
four decisions involve circumstances distinguishable from those
in the instant case where courts held that an officer lacked
probable cause because the officer ignored evidence, or failed to
pursue investigation to find easily obtainable evidence, which

                                 22
     Morris further contends that evidence shows Brown harbored

“angry” motives in making the arrest, which motives she contends

vitiate Brown’s entitlement to qualified immunity.   However,

because the test for immunity is solely one of objective

reasonableness, any “subjective intent, motive, or even outright

animus [is] irrelevant in a determination of qualified immunity

based on arguable probable cause to arrest, just as an officer’s

good intent is irrelevant when he contravenes settled law.”

Mendenhall v. Riser, 

, 231 (5th Cir. 2000) (citation

omitted).   Thus, any subjective, even angry, motives on Brown’s

part are immaterial to our determination that he had probable

cause to arrest and was consequently entitled to qualified




would have exculpated the suspect. See Lusby v. T.G. & Y Stores,
Inc., 

, 1431-32 (10th Cir. 1984) (finding lack of
probable cause where an arresting officer could have easily
ascertained that sunglasses, which the suspect was alleged to
have stolen, had been paid for in a prior visit to the store);
Baptiste v. J.C. Penney Co., Inc., 

, 1256-57 (10th
Cir. 1998) (finding a lack of probable cause where a merchant
employee alleged to officers that a suspect stole a ring, but a
videotape the officers viewed prior to conducting a search
clearly indicated that the suspect had not stolen any
merchandise); McNeely v. National Tea Co., 94-CA-392 (La. App. 5
Cir. 3/28/95), 

, 1234-37 (finding an officer lacked
reasonable cause to detain a shoplifter where an employee
reported a theft of some batteries, but did not observe any
concealment); 

-60 (finding that store
employees lacked probable cause to arrest where a suspect
demonstrated she had no goods on her person and thus that she
failed to commit theft under applicable Arkansas statutes).
Evidence shows that Brown did not ignore any facts that would
exculpate Morris of theft under Louisiana law. Thus, Morris’s
reliance on these four decisions is misplaced and unpersuasive.

                                23
immunity.     The district court, therefore, did not err in granting

summary judgment in favor of Officer Brown on the § 1983 claim.

   VI.      STATE LAW CLAIMS AGAINST DILLARD’S AND LIBERTY MUTUAL

     Although the district court granted summary judgment on all

of the federal claims, the court nonetheless retained

jurisdiction over the pendent state law claims for false arrest,

false imprisonment, malicious prosecution, and intentional

infliction of emotional distress, and likewise granted summary

judgment on those claims in favor of Dillard’s and Liberty on the

merits.12    Morris’s claims for false arrest, false imprisonment,

and malicious prosecution fail as a matter of law because Brown

had probable cause to arrest Morris.13    See Tabora v. City of

     12
          Ordinarily, the fact that all federal claims have been
disposed of counsels in favor of the district court declining to
retain jurisdiction over any pendent state law claims, Branson v.
Greyhound Lines, Inc. Amalgamated Council Ret. & Disability Plan,

, 758 n.9 (5th Cir. 1997) (citation omitted), but
dismissal is not mandatory, and the district court has discretion
to retain jurisdiction, a decision to which this court defers
absent abuse of that discretion. See McClelland v. Gronwaldt,

, 520-21 (5th Cir. 1998). Since the instant state
claims present no novel issues of state law and are easily
dispatched, we find that the district court did not abuse its
discretion in deciding the claims on the merits and thus, in the
interest of judicial economy, we will decide them rather than
dismissing them to be pursued in state court. Cf. Batiste v.
Island Records, Inc., 

, 227-28 (5th Cir. 1999)
(finding that a district court abused its discretion in not
maintaining jurisdiction over pendent state claims where such
claims presented no “complex,” “novel [,] or especially unusual
questions [of state law] which cannot be readily and routinely
resolved by the court”).
     13
         The district court held that at the time Brown detained
and arrested Morris, he was acting in his official capacity, and
not as an employee of Dillard’s, and thus that his actions could

                                   24
Kenner, 94-613 (La. App. 5 Cir. 1/18/95), 

, 322-23

(holding that an essential element of claims under Louisiana law

of false arrest, false imprisonment, and malicious prosecution is

a lack of probable cause).   Consequently, the district court did

not err in granting summary judgment in favor of Dillard’s and

Liberty on the claims of false arrest, false imprisonment, and

malicious prosecution.

     Morris’s claim for intentional infliction of emotional

distress likewise fails as a matter of law because she fails to

point to evidence of the level of extreme and outrageous conduct

required to sustain the claim.   An emotional distress claim under

Louisiana law requires that the plaintiff establish three

elements: (1) that the conduct of the defendant was extreme and

outrageous; (2) that the emotional distress suffered was severe;

and (3) that the defendant desired to inflict severe emotional

distress or knew that such distress would be substantially

certain to result from the conduct.   White v. Monsanto Co., 585



not be attributed to Dillard’s for the purposes of the false
arrest, false imprisonment, and malicious prosecution claims
against Dillard’s. We find it unnecessary to make any
determination regarding the issue of respondeat superior because
Morris’s claims fail in any event because Brown had probable
cause to arrest.
     Morris attempts to argue additionally on appeal that because
the report made by Dillard’s employee Maxey led to Morris’s
arrest, Dillard’s may be liable on a theory of respondeat
superior for Maxey’s conduct. Because this argument based on
Maxey’s conduct is raised for the first time on appeal, we
decline to address it. See, e.g., Rogers v. Hartford Life &
Accident Ins. Co., 

, 944 n.8 (5th Cir. 1999).

                                 

, 1209 (La. 1991).14   Louisiana courts, like courts in

other states, have set a very high threshold on conduct

sufficient to sustain an emotional distress claim, and the

Louisiana Supreme Court has noted that “courts require truly

outrageous conduct before allowing a claim ... even to be

presented to a jury.”   See, e.g., Nicholas v. Allstate Ins. Co.,

99-2522 (La. 8/3/00), 

, 1022, 1024-25 (adopting the

approach of the RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1977)).

The conduct described in this record does not rise to the level

of extreme and outrageous conduct required to support a claim.

The district court did not err, therefore, in granting summary

judgment in favor of Dillard’s and Liberty on the emotional

distress claim.

                         VII.    CONCLUSION

     For the foregoing reasons, the district court’s summary

judgment in favor of Dillard’s and Liberty on Morris’s claims

against them brought pursuant to 42 U.S.C. § 1983 and § 1981, as

well as on her state law claims of false arrest, false

imprisonment, malicious prosecution, and intentional infliction

     14
          Morris contends that the district court erred in
granting summary judgment on her emotional distress claim because
the court ignored evidence she submitted, in the form of medical
records from a treating psychiatrist, indicating that Morris
suffers Post Traumatic Stress Disorder as a direct result of her
arrest. Assuming, arguendo, that the district court erred in
improperly considering evidence regarding the severe distress
element, Morris’s claim nonetheless fails because she fails to
point to sufficient evidence establishing the element of extreme
and outrageous conduct.

                                  26
of emotional distress, is AFFIRMED.   The district court’s summary

judgment in favor of Officer Brown on Morris’s claim against him

brought pursuant to 42 U.S.C. § 1983 is likewise AFFIRMED.




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