Case: 11-31159       Document: 00512149640         Page: 1     Date Filed: 02/20/2013




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

                                                                            FILED
                                                                         February 20, 2013

                                     No. 11-31159                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



FLOYD P. DONLEY, SR.,

                                                  Plaintiff - Appellant

v.

HUDSONS SALVAGE, L.L.C.; LINDA COX;
VELMA ELAINE HINGLE; ANGIE CARTER;
LOIS PELTIER; JERRY HOLIFIELD;
ALAN SPALLINGER; ALLEN ORDENEAUX, III;
SERGEANT VARNADO; TED SIMMONS;
JERRY TRABONA; CHARLES REID;
AMITE CITY COUNCIL; JOEY PHILLIPS;
DOMINIC CUTI; REGINALD GOLDSBY,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-cv-3223


Before JONES, DENNIS, and HAYNES, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                        No. 11-31159

      Before us on appeal is the fifth in a series of lawsuits filed by the plaintiff,
Floyd Donley, in relation to a single incident. This suit rehashes claims already
raised in prior suits against largely the same defendants, who can be divided
into two groups: Ordeneaux, Phillips, Cuti, Trabona, Simmons, Varnado, Reid,
Goldsby, and the Amite City Council (collectively, the “Amite Defendants”) and
Cox, Hingle, Spallinger, Peltier, Carter, Holifield, and Hudson’s Salvage, LLC
(collectively, the “Hudson’s Defendants”). Because all of Donley’s claims are
precluded under res judicata, we AFFIRM the district court’s decision.
                                     BACKGROUND
      In September 2008, Donley was in a store owned by Hudson’s Salvage,
LLC (“Hudson’s Salvage”) photographing what he believed to be safety
violations. A store employee called the police, and Officer Ordeneaux was
dispatched to the investigate the complaint that Donley refused to leave. When
Ordeneaux arrived, Cox, a store manager, told him that Donley was verbally
combative and refused to leave the store. Cox also told Ordeneaux that Donley
struck Hingle, a store employee,1 and Spallinger, a private security officer on
duty at the store. Cox had already called for ambulances for Hingle and Donley.2
      Donley refused Ordeneaux’s request for his driver’s license and, according
to affidavits from Ordeneaux and Officer Phillips, was verbally combative.
Donley gestured sharply at Ordeneaux. Ordeneaux stated that Donley “lunged
at me with a closed fist as if to strike me.” Phillips stated that Donley “raised
his arms above his head and walked toward Officer Ordeneaux in a threatening
manner.” Ordeneaux then handcuffed Donley. The store surveillance video does
not show Donley lunging at Ordeneaux or raising his arms above his head, and
it does not conclusively show whether Donley gestured with a closed fist, but it


      1
          The store surveillance video does not conclusively show whether Donley struck Hingle.
      2
          Donley was complaining of chest pains and dizziness.

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does show Donley abruptly gesturing and that Ordeneaux did not touch Donley
prior to handcuffing him.           The officers remained with Donley until the
ambulance arrived.
       Hospital staff examined and released Donley. The officers allowed him to
visit his personal physician for a second opinion, but instructed him to surrender
to the Amite City Police Department the next day. Donley surrendered to the
police the next day and was booked for two counts of simple battery.
       Donley was convicted of one count of simple battery on Hingle by
Magistrate Reid in the Amite City Mayor’s Court. The conviction was dismissed
on appeal.
       Donley has filed four prior civil actions based on his arrest and subsequent
conviction.3 In his first suit, Donley filed a § 1983 complaint in the Eastern
District of Louisiana against a paramedic not named in this action and appellees
Ordeneaux, Phillips, Cuti, Trabona, and Simmons in their capacities as
employees of Amite City. The lower court granted summary judgment and
dismissed Donley’s claims on the basis of qualified immunity, and we affirmed.
Donley v. Ordeneaux, 419 F. App’x 519, 520 (5th Cir. 2011), cert. denied, No. 11-
149, 

(Oct. 11, 2011). In his second suit, Donley sued Reid in
state court in his capacity as City Attorney and Magistrate of Amite City. The
trial court granted Reid’s peremptory exception of no cause or right of action and
dismissed Donley’s suit on the ground that Reid enjoyed judicial immunity for
all of his official acts as presiding officer of a major’s court, and the appellate
court affirmed. Donley v. Reid, No. 2010-1217, 

, at *1 (La.
App. 1st Cir. Dec. 22, 2010), writ denied, 

(La. 2011), cert. denied,

(2011). In his third suit, Donley sued Hudson’s Salvage, Cox,
Hingle, Spallinger, Peltier, and Holifield “for personal injury, false arrest and

       3
        The district court only considered three of these suits because the defendants did not
submit evidence regarding the allegations, parties, or disposition of the fourth suit.

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imprisonment, defamation, malicious prosecution, and violation of his civil
rights,” arising out of his arrest and trial. Donley v. Hudson’s Salvage, LLC, No.
2010-1315, 

, at *1 (La. App. 1st Cir. Dec. 22, 2010). The
appellate court reversed the trial court’s decision in favor of the defendants for
malicious prosecution and defamation and affirmed the trial court’s decision in
favor of the defendants on all other claims. The remaining claims for malicious
prosecution and defamation are pending in Louisiana state court as of the filing
of the Hudson’s Defendants’ brief.
      The district court in this case held that the three prior judgments against
Donley preclude all of his claims against the defendants who were parties to
Donley’s prior suits.4 The district court held that Donley’s claims against the
remaining defendants are also barred by claim preclusion.5 The district court
also held that the defendants were entitled to summary judgment on Donley’s
§ 1983 claims because there is no vicarious liability under § 1983, the Hudson’s
Defendants are not state actors, and no cause of action for malicious prosecution
exists under § 1983. The district court granted summary judgment in favor of
the defendants on Donley’s conspiracy claim under § 1983 because Donley
produced no evidence of an agreement among any of the defendants to do an
illegal act. The district court held that Donley’s claims against Reid are barred
by judicial immunity and that his defamation claims based on testimony by the
defendants are barred by witness immunity. The district court held that all of
Donley’s state law claims, except for malicious prosecution, have prescribed and
that, in regard to his malicious prosecution claim, Donley could not establish
that the officers did not have probable cause to arrest him.
                              STANDARD OF REVIEW

      4
       Those defendants are: Cox, Hingle, Peltier, Holifield, Spallinger, Ordeneaux,
Simmons, Trabona, Reid, Phillips, Cuti, and Hudson’s Salvage.
      5
          Those defendants are: Carter, Varnado, Goldsby, and the Amite City Council.

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      “This court reviews the district court’s grant of summary judgment de
novo, applying the same standards as the district court. Summary judgment is
warranted if ‘the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is not genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’” DePree v. Saunders,

, 286 (5th Cir. 2009) (internal citations omitted).
      The Full Faith and Credit Statute, 28 U.S.C. § 1738, “‘requires federal
courts to give the same preclusive effect to state court judgments that those
judgments would be given in the courts of the State from which the judgments
emerged.’” Sevin v. Parish of Jefferson, 

, 594 (E.D. La. 2008)
(quoting Kremer v. Chem. Constr. Corp., 

, 466 (1982)).                “In
determining the preclusive effect of an earlier state court judgment, federal
courts apply the preclusion law of the state that rendered the judgment.”
Weaver v. Tex. Capital Bank N.A., No. 10-10835, 

, at *4 (5th
Cir. Oct. 17, 2011) (citations omitted). As the Louisiana res judicata statute “is
modeled on federal preclusion doctrine and the Restatement on Judgments,
federal jurisprudence may be consulted when the relevant Louisiana cases leave
doubt at to the meaning of the statute. 

. The
federal common law of claim preclusion:
      bars the litigation of claims that either have been litigated or should
      have been raised in an earlier suit. The test for claim preclusion
      has four elements: (1) the parties in the subsequent action are
      identical to, or in privity with, the parties in the same action; (2) the
      judgment in the prior case was rendered by a court of competent
      jurisdiction; (3) there has been a final judgment on the merits; and
      (4) the same claim or cause of action is involved in both suits. . . .
      When all four elements are present, claim preclusion prohibits a
      litigant from asserting any claim or defense in the later action that
      was or could have been raised in support of or in opposition to the
      cause of action asserted in the prior action.



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                                   No. 11-31159

Duffie v. United States, 

, 372 (5th Cir. 2010) (quotation marks and
citations omitted).
      This court has held that res judicata is justified “where the non-party’s
interests were adequately represented by a party to the original suit.” Meza v.
Gen. Battery Corp., 

, 1266 (5th Cir. 1990). “[A] non-party will be
considered ‘in privity, or sufficiently close to a party in the prior suit so as to
justify preclusion,’ where the party to the first suit is so closely aligned with the
nonparty’s interests as to be his ‘virtual representative.’” Royal Ins. Co. of Am.
v. Quinn-L Capital Corp., 

, 1297 (5th Cir. 1992) (quoting Benson
& Ford, Inc. v. Wanda Petroleum Co., 

, 1174–75 (5th Cir. 1987)).
Under Louisiana law, “the preclusive effect of an earlier judgment could bind a
nonparty . . . whose interests were adequately represented by parties to the prior
litigation.” Williams v. Orleans Levee Dist., 

, 1049 (La. 2010)
(citing Forum for Equality PAC v. McKeithen, 

, 745 (2005)).
      While we “liberally construe briefs of pro se litigants and apply less
stringent standards to parties proceeding pro se than to parties represented by
counsel, pro se parties must still brief the issues and reasonably comply with the
standards of Rule 28.” Grant v. Cueller, 

, 524 (5th Cir. 1995)
(citation omitted).
                                  DISCUSSION
      Donley lists eighteen separate issues in his appellate brief (two issues are
labeled in Donley’s brief as “Issue III”). For the sake of clarity, we will address
each in turn.
      1. Donley argues that Magistrate Judge Wilkinson was biased against
him in his ruling granting the Amite Defendants summary judgment. The only
indications of Judge Wilkinson’s bias that Donley points toward are his
unsupported assertion that Judge Wilkinson’s “assessment of the [store
surveillance video] does not appear to be even-handed” and that Judge

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                                 No. 11-31159

Wilkinson granted the defendants summary judgment knowing that Phillips,
Ordeneaux, and Cuti had submitted false documents with the intent to mislead
the court. There is no proof of bias.
      2. Donley argues that Reid committed “Fraud on the Courts” by serving
as both Town Attorney and Town Magistrate. Donley previously made this
argument in another suit. Reid, 

, at *3. Because Reid was
party to the prior suit, because the Louisiana court was one of competent
jurisdiction, because that court made a final judgment against Donley on the
merits, and because the same claim was involved in both suits, the district court
in this case correctly held that Donley’s claim was precluded.
      3A.   Donley argues that Detweiler, the Amite Defendants’ attorney,
committed “Fraud on the Courts” by “injecting his own testimony in violation of
Attorney Ethics, altering defendant testimony, documents, omitting known
evidence, [and] misleading the Court by citing a Town Court conviction that is
not admissible evidence.” Donley contends that Detweiler submitted perjured
affidavits from the police officers involved, made a false statement to the court
concerning when Donley was arrested, altered wording in Ordeneaux’s and
Phillip’s affidavits, and withheld evidence favorable to Donley. The affidavits
and other evidence Donley refers to concern claims against the Amite
Defendants precluded by his prior suit. Ordeneaux, 419 F. App’x at 520.
      3B. Donley argues that the district court erred in dismissing his motion
for summary judgment. The district court held that all of Donley’s claims were
precluded under res judicata. Although Donley still has claims for defamation
and malicious prosecution pending in state court, the district court properly held
that those claims were precluded in federal court by the judgments in
Ordeneaux, 419 F. App’x 519, and Reid, 

, because they arose
out of the same transaction as the claims in those cases and could have been



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                                    No. 11-31159

raised in those suits.6 Donley claims that res judicata should not apply due to
“exceptional circumstances,” namely that he was denied evidence, documents
were altered, the defendants misled the court, that the store surveillance video
confirms his version of events, and there was “general . . . manifest injustice.”
The Louisiana res judicata statute makes an exception where “exceptional
circumstances justify relief from the res judicata effect of the [prior] judgment.”
La. Rev. Stat. § 13:4232(A)(1). But see Avenue Plaza, LLC v. Falgoust, 

, 1079 (La. 1996) (“Once a final judgment acquires the authority of the thing
adjudged, no court has jurisdiction to change the judgment, regardless of the
magnitude of the final judgment’s error.”) (citations omitted). The Louisiana
statute gives the court “discretion [that] must be exercised on a case by case
basis and . . . granted only in truly exceptional cases, otherwise the purpose of
res judicata would be defeated.” Spear v. Prudential Prop. and Cas. Ins. Co., 

, 642–43 (1999).         Donley’s mere allegations do not amount to
exceptional circumstances.
      4. Donley argues that the district court erred in granting the Amite and
Hudson’s Salvage Defendants’ motions for summary judgment. For the same
reasons that the district court did not err in dismissing Donley’s motion for
summary judgment, it did not err in granting the Amite and Hudson’s Salvage
Defendants’ motions for summary judgment.
      5. Donley argues that district court erred in holding Donley’s claims
against Reid and Goldsby were barred by immunity. The district court properly
held that Donley’s claims against both were precluded. A court of competent
jurisdiction previously held that Donley’s claims against Reid were barred by
judicial immunity. Reid, 

, at *2–3. While Goldsby was not
party to Donley’s prior suit, Donley added him to this suit on the theory that, as

      6
       Ordeneaux and Reid were affirmed on appeal after the appellate court’s decision in
Hudson’s Salvage, 

.

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mayor, he illegally recommended to the Amite City Council that they illegally
appoint Reid as magistrate despite already serving as City Attorney. Goldsby
has the same interest in defending Reid’s authority as magistrate as Reid did in
the prior case. Because Reid appeared in the “same quality or capacity” and
adequately represented the interests of Goldsby in the prior suit, Donley is
precluded from arguing that Reid and Goldsby are not protected by immunity.
      6. Donley argues that the district court erred in holding Donley’s claims
against the officers were barred by immunity. The lower court only addressed
immunity for the officers in holding that Ordeneaux, Phillips, and Cuti were
immune from suit for claims based on their testimony against Donley at his
criminal trial. “[W]itnesses are entitled to absolute immunity against § 1983
suits based on their testimony in a criminal trial.” Mowbray v. Cameron Cnty.,

, 277 (5th Cir. 2001) (citing Briscoe v. LaHue, 

(1983)).
Donley also argues that the officers are not entitled to qualified immunity;
however, Donley’s arguments are precluded by a prior judgment. Ordeneaux,
419 F. App’x at 520.
      7. Donley argues that the district court “abused its discretion when
viewing the Evidence.” Because the district court correctly held that all of
Donley’s claim were precluded by prior judgments, we need not and do not
review whether the district court properly viewed the evidence on summary
judgment in the light most favorable to Donley.
      8. Donley argues that Blondell, attorney for the Hudson’s Defendants, was
not admitted to the bar to practice in the district court. Donley did not raise this
issue before the lower court, and accordingly it is waived. Nissho-Iwai Am. Corp.
v. Kline, 

, 1307 (5th Cir. 1998).
      9. Donley argues that an unbiased viewer of the store surveillance video
could not conclude that Donley was not “excessively abused and Cruel and
inhuman punishment inflicted.” This court, in reviewing the district court’s

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grant of summary judgment, applies the same standard as the district court.

. Facts are to be “construed in the light most favorable
to the nonmovant.” Edwards v. Your Credit, Inc., 

, 432 (5th Cir.
1998). The district court’s treatment of the facts in this case, however, is not
relevant because all of Donley’s claims are precluded by judgments in prior suits.
      10.   Donley argues that the district court did not accord him the
consideration due to pro se plaintiffs in denying several motions to compel. We
review a district court’s decision whether to order production of discovery for
abuse of discretion. Batton v. Evers, 

, 175 (5th Cir. 2010) (citation
omitted). The district court was obliged to construe Donley’s motions liberally,
but Donley is not free from the rules of the court. In each order denying a
motion to compel, the district court stated its reasons. Despite this Donley
repeatedly filed motions to compel containing the same deficiencies. As such, the
magistrate judge did not abuse his discretion in denying Donley’s motions to
compel.
      11. Donley argues that the police arrested him without a proper warrant.
His claim is precluded by a prior judgment. Ordeneaux, 419 F. App’x at 520.
      12. Donley argues that he was “subjected to Manifest Injustice by the
manipulations of the Amite defendants and/or their attorney.” Donley appears
to rely on the same arguments he made in contending that Detweiler, the Amite
Defendants’ attorney, committed “Fraud on the Courts” in Issue 3A.
Accordingly, these arguments are precluded by the judgment against Donley in
Ordeneaux. 419 F. App’x at 520.
      13. Donley argues that the district court committed reversible error when
it allowed the defendants to cite the Mayor’s Court trial in USDC Cases
2:09cv6422 and 2:10cv3223. Donley v. Ordeneaux, No. 2:09cv6422, 

(E.D. La. Jul. 16, 2010), is not before us on appeal. In regards to this
case, it is unclear what Donley is referring to; the Magistrate Judge’s opinion did

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not rely on Donley’s Mayor’s Court trial in holding against him. “Although we
liberally construe pro se briefs, such litigants must still brief contentions in order
to preserve them.” Longoria v. Dretke, 

, 901 (5th Cir. 2007) (citation
omitted).
      14.   Donley argues that the district court erred by not sufficiently
explaining why his motions to compel were denied. The district court denied
nine motions to compel filed by Donley in eight separate orders. (E.D. La.
2:10cv3223, ECF Nos. 34, 44, 45, 48, 49, 57, 71, 102.) One was denied as moot,
and the district court provided specific reasons for each of the other motions.
Donley failed to provide the court with a copy of the subject requests in violation
of the local rules (Nos. 44, 45, 57), failed to notice for hearing and provide
indication that he contacted opposing counsel beforehand (Nos. 48, 49, 71), and
submitted motions to compel that were “vague and perfunctory” (No. 102).
      15. Donley argues that the editing of the store surveillance video violated
his rights by omitting scenes that favored him. The only direct reference to this
argument, however, that he makes in his brief is the statement that the video
does not show him being assaulted by Officer Cuti because it panned away
beforehand. Donley does not state how this should have changed the district
court’s holding. The Magistrate Judge acknowledged the video was sometimes
inconclusive and did not show everything relevant that happened, but the court
need only look to affidavits and deposition testimony and interpret the facts in
the light most favorable to the nonmovant in addressing off-camera actions.
Donley also does not state why the editing of the store surveillance video would
defeat the preclusive effect of the prior judgments against him.
      16. Donley argues that the defendants concealed or conspired to conceal
evidence. Donley makes conclusory statements of a conspiracy and multiple
references to “perjured” statements by the defendants in his brief. Unsupported
statements alone are insufficient grounds to overturn the district court.

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      17. Donley argues that the district court’s decision in USDC Case 2:09-cv-
6422 was influenced by the concealment, alteration, or withholding of evidence.
Donley v. Ordeneaux, 

, is not before us on appeal.
                               CONCLUSION
      Because the district court did not err in granting the Amite Defendants’
and Hudson’s Defendants’ motions for summary judgment on the basis of res
judicata and because each of Donley’s other arguments are without merit, the
district court’s judgment is AFFIRMED.




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