DiLosa v. City of Kenner

Full title: DOUGLAS DiLOSA, DENNIS DiLOSA and DENISE DiLOSA v. THE CITY OF KENNER, ET…

Court: United States District Court, E.D. Louisiana

Date published: Dec 15, 2004

Civil Action No. 03-0310 Section "R" (2) (E.D. La. Dec. 15, 2004)

Opinion

Civil Action No. 03-0310 Section "R" (2).

December 15, 2004

ORDER AND REASONS

SARAH VANCE, District Judge

Before the Court are five motions from defendants for summary judgment. Defendants Douglas Dodt and the City of Kenner jointly move to dismiss, or in the alternative for summary judgment on Douglas DiLosa's claims under 42 U.S.C. §§ 1981 and 1982. DiLosa does not oppose this motion. Dodt moves for summary judgment on DiLosa's claims under 42 U.S.C. § 1983 for violation of his constitutional rights. DiLosa opposes this motion. The City of Kenner also moves the Court to grant summary judgment in its favor on DiLosa's claims under 42 U.S.C. § 1983. DiLosa does not oppose this motion. Dodt and the City of Kenner jointly move for summary judgment on Dennis and Denise DiLosa's federal and state law claims for loss of consortium. Dennis and Denise DiLosa oppose this motion. Finally, Dodt and the City of Kenner move the Court for summary judgment on all three plaintiffs' state law claims for false arrest, defamation, intentional infliction of emotional distress, malicious prosecution, and conspiracy. Plaintiffs oppose this motion. Defendants Harry Lee, Joseph Warren and Merril Boling join in the motions for summary judgment filed by Dodt and the City of Kenner, and they have filed a supplemental memorandum in support of their position. Plaintiffs do not oppose these defendants' motion for summary judgment. Plaintiffs have filed a cross-motion for summary judgment, asking the Court to determine the issues of whether there was probable cause to arrest DiLosa and whether Dodt is entitled to qualified immunity. For the following reasons, the Court GRANTS all of the defendants' motions.

I. BACKGROUND

On September 27, 1986, Glinda DiLosa was found strangled to death in her bed in the condominium she shared with her husband Douglas DiLosa and their two young children, Dennis and Denise, in Kenner, Louisiana. Douglas DiLosa was found bound on the floor in the living room downstairs. He reported that he had heard a noise downstairs around 3:30 a.m. and that, when he went to investigate, two black men attacked him and struck him in the head with an object. He stated that one of the men beat him until he lost consciousness. When he regained consciousness, he called out to his son, Dennis DiLosa, whom he instructed to call 911. Officers arrived at the scene at approximately 5:30 a.m.

On December 27, 1986, defendant Douglas Dodt, one of the police officers investigating the case, submitted an affidavit in support of his request for a warrant to arrest DiLosa. The warrant issued, and on December 29, 1986, officers of the Kenner Police Department arrested DiLosa for the murder of his wife. On January 15, 1987, DiLosa was charged by grand jury indictment with second degree murder. DiLosa was tried and convicted of second-degree murder in July 1987. On September 11, 1987, the court sentenced DiLosa to life in prison at hard labor and remanded him to the custody of the Angola State Penitentiary.

In 1994, DiLosa obtained a copy of the complete investigatory file from the Kenner Police Department under a Freedom of Information Act Request. The file contained a 150-page police report that Dodt had prepared before DiLosa's trial. The report, dated December 28, 1986, one day after the affidavit Dodt submitted in support of his request for a warrant to arrest DiLosa, contained evidence that had not been introduced at trial or produced to the defense before trial.

Armed with this new evidence, DiLosa petitioned this Court for a writ of habeas corpus. In September 2000, Magistrate Judge Moore recommended that DiLosa's writ of habeas corpus be granted. In November 2000, District Judge McNamara issued a writ of habeas corpus, ordering that the case be remanded to the State of Louisiana either to retry DiLosa or to release him from custody within 120 days. The Fifth Circuit affirmed the writ on January 9, 2002. DiLosa v. Cain, 279 F.3d 259 (5th Cir. 2002). The State decided not to retry DiLosa, and he was released from custody on January 8, 2001. The State dismissed the charges against DiLosa on January 10, 2003.

DiLosa filed suit in this Court on January 31, 2003. Through an original and two amended complaints, DiLosa alleges several causes of action against defendants Dodt and the City of Kenner. DiLosa claims that defendants violated 42 U.S.C. §§ 1981 and 1982. DiLosa also claims that defendants violated 42 U.S.C. § 1983 by violating his constitutional right to be free from unlawful arrest and by conspiring to present false testimony at his trial.¹ DiLosa's children, Dennis and Denise DiLosa, assert that they are entitled to damages under 42 U.S.C. § 1983 and under state law for loss of consortium as a result of defendants' deprivation of their father's constitutional rights and their commission of state law torts. Finally, DiLosa sues Dodt and the City of Kenner for false arrest, defamation, intentional infliction of emotional distress, malicious prosecution, and conspiracy to commit those torts under Louisiana law. DiLosa also sues Sheriff Harry Lee, Merril Boling, a latent fingerprint expert for Jefferson Parish, and Joseph Warren, a forensic biologist for Jefferson Parish, under section 1983 for withholding exculpatory evidence and testifying falsely at trial, for defamation, and for malicious prosecution. DiLosa also sues those defendants under Louisiana law for false arrest, defamation, intentional infliction of emotional distress, and malicious prosecution, and for conspiracy to commit those violations. Defendants move for summary judgment on all of the DiLosas' claims.

1 DiLosa originally asserted additional violations under section 1983. He alleged that Dodt violated DiLosa's right to a fair trial by withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), that Dodt violated DiLosa's right to be free from malicious prosecution, and that Dodt defamed him in statements to the public, the press and the DiLosa family. DiLosa has now abandoned the Brady claim because he acknowledges that Dodt turned his report over to the prosecution. ( See R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J. at 18). He has also abandoned the malicious prosecution claim because such a claim is no longer recognized under Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003). ( See id.). Finally, he has conceded that there is not sufficient evidence to support a defamation claim under section 1983. ( See id.). That leaves only the unlawful arrest and conspiracy to give false testimony claims under section 1983.

II. LEGAL STANDARD

Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).

III. DISCUSSION

A. DiLosa's Section 1981 and 1982 Claims Against Dodt and the City of Kenner

Defendants Dodt and the City of Kenner move for summary judgment on DiLosa's claims under 42 U.S.C. §§ 1981 and 1982. DiLosa has not opposed this motion and states in his opposition to Dodt's motion for summary judgment that he dropped these claims in a supplemental and amended complaint. (R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J. at 5). The Court, in any event, finds that these claims should be dismissed. The Court has already dismissed DiLosa's section 1981 and 1982 claims against other defendants in this case for failure to make the prima facie showing of racial discrimination that is required to state a claim under these sections. ( See R. Doc. 71, Order of Jan. 16, 2004). DiLosa has not produced any argument or evidence that would alter the Court's analysis with respect to his section 1981 and 1982 claims against Dodt and the City of Kenner. The Court therefore grants defendants' motion and dismisses DiLosa's claims under 42 U.S.C. §§ 1981 and 1982.

B. DiLosa's Section 1983 Claims Against Dodt

1. Arrest Without Probable Cause

DiLosa alleges that Dodt is liable under 42 U.S.C. § 1983 because Dodt caused DiLosa to be arrested pursuant to an intentionally or recklessly false and misleading affidavit. Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983. In response to DiLosa's claim, Dodt asserts that he is entitled to qualified immunity.

A state official who is sued for a constitutional violation under section 1983 may assert the affirmative defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). Qualified immunity protects government officials who perform discretionary functions from civil liability if their conduct violates no clearly established statutory or constitutional right of which a reasonable person would have known. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). (internal quotations omitted). As the Supreme Court has explained, this defense "gives ample room for mistaken judgments," and protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Abrogation of qualified immunity is the exception, not the rule, and the plaintiff has the burden of negating the defense. Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Whether a defendant is entitled to qualified immunity should ordinarily be decided by the court before trial. Hunter v. Bryant, 502 U.S. 224, 228 (1991).

The threshold question in determining whether Dodt enjoys qualified immunity from a suit for damages on DiLosa's claims under section 1983 is whether the facts, taken in the light most favorable to the party asserting the injury, show that the officers violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). DiLosa asserts that Dodt violated his Fourth Amendment rights by causing him to be arrested without probable cause. In Franks v. Delaware, the Supreme Court held that if an officer presents an affidavit for a warrant that contains materially false statements with either knowledge or a reckless disregard for the truth, an arrest under the warrant may constitute a violation of the suspect's Fourth Amendment rights. 438 U.S. 154, 155-56 (1978). If the officer makes the materially false statements knowingly and intentionally or with reckless disregard for the truth, the Court must disregard those statements in determining whether the affidavit is sufficient to support a finding of probable cause. Id. The holding in Franks has been applied to material omissions from the affidavit as well. Hale v. Fish, 899 F.2d 390, 400 n. 3 (5th Cir. 1990). Thus, if the officer misstated or omitted material facts from the affidavit intentionally or with reckless disregard for the truth, the Court must determine whether, if the misstatements had been set aside and the omitted material included, the affidavit would still have established probable cause for arrest. See McCall v. Peters, No. 03-10550, 2004 WL 1842567, at *1 (5th Cir. Aug. 18, 2004); United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997); United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). If there is no evidence that the officer made materially false statements or omissions intentionally or with reckless disregard for the truth, or if the affidavit as properly constituted would still have established probable cause for arrest, there is no violation of a constitutional right. See Saucier, 533 U.S. at 201. The officer is entitled to qualified immunity, and the Court need proceed no further. See id.

The party attacking the warrant bears the burden of establishing by a preponderance of the evidence that the officer made the material misrepresentation or omission intentionally or with reckless disregard for the truth. Alvarez, 127 F.3d at 373. The Fifth Circuit, recognizing that it will often be difficult to prove that an officer made an omission intentionally or with reckless disregard for the truth, has held that the court may infer that the officer acted recklessly if the materiality of the omission is great enough. United States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982); Martin, 615 F.2d at 329; United States v. Cleveland, 964 F. Supp. 1073, 1078 (E.D. La. 1997). Reckless intent, however, is to be inferred only in extreme cases when the materiality of the omitted material is "clearly critical" to the probable cause determination. Namer, 680 F.2d at 1094; Martin, 615 F.2d at 329; Cleveland, 964 F. Supp. at 1078.

If, viewing the facts in the light most favorable to the non-moving party, a constitutional right was violated, the Court must then determine whether the right violated was clearly established. Saucier, 533 U.S. at 201. In other words, in the probable cause context, the Court must determine whether it would be clear to a reasonable officer that his conduct in submitting the affidavit was unlawful because there was not probable cause for the arrest. See id. at 202. Even if an officer erred in concluding that probable cause existed for the arrest, he would be entitled to qualified immunity if his decision was reasonable, albeit mistaken. Lampkin v. City of Nacogdoches, 7 F.3d 430, 434-35 (5th Cir. 1993). Thus, if "reasonable police officers would disagree" as to whether the arrest was lawfully based on probable cause, the right to be free from the arrest was not clearly established and the officer retains qualified immunity. See Estep v. Dallas County, Texas, 310 F.3d 353, 366 (5th Cir. 2002). The Court, in evaluating a claim of qualified immunity, must determine the objective reasonableness of the official's act as a matter of law. Lampkin, 7 F.3d at 434-35 (following the holding and reasoning of Hunter, 502 U.S. at 226-28).

To withstand a motion for summary judgment on qualified immunity grounds, then, DiLosa must first demonstrate a constitutional violation under Franks. He must identify evidence in the record that shows that Dodt, knowingly and intentionally or with a reckless disregard for the truth, made false statements or omitted facts from the affidavit that were material to the judicial officer's determination that probable cause existed for his arrest. Franks, 438 U.S. at 155-56; see Hale, 899 F.2d at 400. Taking the facts in the light most favorable to DiLosa, the Court must disregard any properly contested statements in the affidavit and include any properly contested omissions, and then determine whether the affidavit would still present probable cause for DiLosa's arrest. See McCall, 2004 WL 1842567, at *1; Alvarez, 127 F.3d at 373. Summary judgment for defendants is appropriate, then, only if the Court is "able to determine, as a matter of law, that the corrected affidavit would have been sufficient to support a finding of probable cause." Smith v. Edwards, 175 F.3d 99, 105 n. 5 (2d Cir. 1999). If it would, there is no constitutional violation and Dodt is entitled to qualified immunity.

a. Probable Cause

"[P]robable cause is the `sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers.'" United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)). Probable cause is not to be determined by weighing "[e]ach individual layer of information" but by considering "the `laminated total' of the facts available." Id. To determine whether probable cause exists, the Court looks to the totality of the circumstances to decide "whether there is a fair probability that a crime occurred." United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (citations omitted). The "requisite `fair probability' is something more than a bare suspicion, but need not reach the fifty percent mark." Id. Before determining that probable cause exists, reasonable law officers are not required to resolve every doubt about a suspect's guilt. Gomez v. Atkins, 296 F.3d 253, 262 (4th Cir. 2002) (citation omitted); Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000). Although an officer "may not disregard readily available exculpatory evidence . . . the failure to pursue a potentially exculpatory lead is not sufficient to negate probable cause." Id. (quoting Wadkins, 214 F.3d at 541).

After a complete review of the record, the Court finds that the following statements in the affidavit, which DiLosa has not challenged as false, justified Dodt's determination that there was probable cause to arrest DiLosa.²

2 The Court notes that DiLosa was indicted by a grand jury after Dodt submitted the affidavit for DiLosa's arrest. The Fifth Circuit has held that "it is well settled that if facts supporting an arrest are placed before a independent intermediary such as a . . . grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party." Taylor v. Gregg, 36 F.3d 453, 456-7 (5th Cir. 1994). The chain of causation is broken only if all of the facts are presented to the grand jury. But, once the moving party has shown that there is no genuine issue as to whether the intermediary's deliberations were tainted by the officer's actions, the plaintiff has the burden of showing that they were. Id. (citing Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988)). The parties did not raise this theory, and the Court therefore will not reach it.

DiLosa admitted to Dodt that he and his wife were having financial difficulties. (R. Doc. 122, Def. Dodt's Mot. Summ. J. Ex. 3, Dodt Aff. at 12). DiLosa had been unemployed for a year and had just been denied an extension of his unemployment benefits. ( Id. at 8, 16). In six months, $45,000 plus interest was due on one of the couple's mortgages. ( Id. at 16). Glinda DiLosa worked two jobs during the day and accepted babysitting jobs at night to earn extra money. ( Id. at 13). She made approximately $1,000 per month before taxes at her full-time job at Essex Mortgage, and, as of the end of August 1986, had made an additional $4,000 in commissions from her real estate job. ( Id. at 16). Glinda DiLosa was upset that DiLosa had been unable to find a job and was becoming more critical of him for that reason. ( Id. at 14, 16). She began to go out socially without her husband. ( Id. at 12-16). Glinda DiLosa's brother stated that the couple's relationship had become "strained" recently. ( Id. at 12).

A year before the murder, DiLosa lost his job at McDermott. ( Id. at 15-16). The couple was close to selling their former residence in Kenner. ( Id. at 12). They were current on payments for the condominium they lived in and had $6,000 left in savings. ( Id.). Glinda DiLosa was covered by $256,000 in life insurance. ( Id. at 20). DiLosa was the beneficiary of the policies. ( Id.)

On the night of the murder, the police arrived at 5:30 a.m. ( Id. at 1). Both doors to the condominium were locked from the inside, indicating that no intruder exited through either door. ( Id. at 1, 19). A pane of glass in a window facing onto the patio had been removed by taping over it with duct tape and cutting it out with a glass cutter. ( Id. at 3, 19). DiLosa had experience with glass cutting and kept a glass cutter in the house. ( Id. at 16). A roll of duct tape, together with some cellophane and a label that appeared to have come from the duct tape, were found on the patio near the window, and a glass cutter was found nearby. ( Id. at 4). DiLosa's fingerprint was on the cellophane. ( Id. at 18). The brand of tape, the glass cutter and the rope used to tie up the DiLosas were available at the hardware store where DiLosa shopped. ( Id.). A length of the same type of rope was found tied to a gate at the rear of the patio, and the knots used to secure the rope to the gate appeared similar to the knots found on the rope binding the DiLosas. ( Id. at 4). DiLosa stated that he kept rope of the type that was used to bind himself and Glinda DiLosa in a drawer of a chest of drawers inside the residence. ( Id. at 12).

The police found the glass that had been removed from the window on the sofa directly below the window from which it came. ( Id. at 19). It would have been difficult for intruders to enter or exit the house without stepping on the pane or moving it from the sofa, and the pane apparently had not been moved from the place it landed on the sofa directly beneath the window after it was cut. ( Id.). Because both doors to the house were locked from the inside, intruders would have had to leave the house through the window as well, rather than simply exiting through the patio door that was next to the window. ( Id.).

DiLosa told police that he was awakened by a noise and when he went downstairs to investigate, he was beaten by two African American males who tied him up and left him unconscious. ( Id. at 4-5). However, DiLosa's hands and feet were loosely bound ( id. at 16-17), and the officer who cut the ropes stated that his first impression was that they were escapable ( id. at 2). DiLosa's clothes were not stretched, wrinkled, torn, or soiled with blood, dirt, grass, or any other material, even though he asserted that he had been kicked and beaten to unconsciousness. ( Id. at 6, 17). His relatively minor injuries included blunt trauma to his right side, a bruise on his left forearm, and redness on his forehead. ( Id. at 7, 18). There were no bruises or other injury to DiLosa's head or scalp, even though he asserted that he had been hit over the head with a stick hard enough to knock him unconscious for two hours. ( Id.) Two doctors who treated DiLosa at the hospital indicated that they considered two hours a very long time for an individual to be unconscious without serious head injury. ( Id. at 18). One said unconsciousness rarely occurs with injuries such as those DiLosa sustained. ( Id.). No items in the area immediately near where DiLosa was found, including drinking glasses in cardboard boxes and spools of thread in a plastic tray, were damaged or spilled from their containers, and the carpet in the area appeared undisturbed, despite DiLosa's assertion that he had been involved in a struggle with two intruders in that area. ( Id. at 2, 3).

Officials at the crime scene gave conflicting reports about whether DiLosa asked about his wife's condition. Two said that DiLosa asked about her not at all or only once, even though he repeatedly asked about his children ( id. at 3, 17), while another officer said DiLosa asked about his wife a number of times ( id. at 16). The latter official, however, also felt that DiLosa already knew that his wife was dead. ( Id.). A nurse who treated DiLosa at the hospital also heard him say that he "was afraid" that the police would take his children away from him. ( Id. at 5). When DiLosa was informed of his wife's death at the hospital, the officer felt that DiLosa was forcing himself to cry. ( Id. at 6).

The door to the master bedroom where the police found Glinda DiLosa was locked. ( Id. at 2). Glinda DiLosa was strangled with a rope around her neck. ( Id.). Even though several people who knew Glinda DiLosa stated that she was a light sleeper and would have fought an intruder ( id. at 13-14), there was no evidence that Glinda DiLosa struggled with her attacker. ( Id. at 2, 8). There was also no evidence that she was sexually assaulted, as there was no trauma to the vaginal area or anus, and her fingernails were intact. ( Id. at 8). Unlike DiLosa, who was left loosely bound, Glinda DiLosa was bound so tightly that the ropes left indentations on her skin. ( Id.). The coroner stated that the absence of bruising or hemorrhaging on the margins of the wrist or leg indentations, when the ropes were tightly bound to the skin, could be consistent with the ropes having been applied after death. ( Id.). From the standpoint of purported intruders, it made little sense to waste time tying up a victim after she was dead and no threat to them.

DiLosa told police that his wife had taken narcotics before she went to sleep so that she could sleep late the next day ( id. at 11), but there was no evidence of narcotics in her system ( id. at 17). This suggests that DiLosa lied to the police about the narcotics in order to explain Glinda DiLosa's sound sleep. Both DiLosa children slept through the incident, even though the master bedroom where Glinda DiLosa was found and the children's bedroom shared a common wall. ( Id. at 2, 6).

The entire house, with the exception of the children's room, was apparently ransacked. ( Id. at 2). Some items, such as jewelry, a case of silver dinner utensils, and Glinda DiLosa's credit cards, were missing from the house ( id. at 4, 8, 19), but several other items of value, including a camera that was removed from its case, two televisions small enough to carry away, and numerous credit cards in DiLosa's name, were not taken. ( Id. at 4, 19-20). After DiLosa returned to the residence, he compiled a list of items that were missing, and this list matched exactly the items he described as valuables in the statements he made to the police before he was allowed back into the residence. ( Id. at 19).

Based on the totality of the circumstances and the reasonable inferences that can be drawn from the facts described above, Dodt had probable cause to believe that DiLosa committed the murder and to seek the arrest warrant. It would be reasonable to infer that DiLosa had a motive to commit the crime based on what Dodt knew, not only because of the financial difficulties the couple was experiencing and the existence of significant insurance policies on Glinda DiLosa's life for which DiLosa was the beneficiary, but also because of the strain others witnessed in the couple's relationship. DiLosa also had the opportunity and the means to commit the crime, as he was in the residence at the time of the murder, and the rope used to strangle his wife was in the house. Further, DiLosa's version of events was belied by the fact that his wife was murdered without a struggle or accompanying sexual assault and was possibly tied up after she was killed, when he (the likely stronger one of the two) was left alive and loosely bound. The nature of his purported beating was not borne out by doctors, and the injuries the doctors found were inconsistent with prolonged unconsciousness. His clothing showed no signs of conflict. His fingerprint was found on cellophane apparently used in the crime, and, as noted, the rope used to tie up his wife and himself came from inside his residence. DiLosa lied about his wife taking drugs. The ransacking of the residence appeared staged, as valuable items, including credit cards belonging to DiLosa, were left behind, and DiLosa was able to list everything that was missing even before he returned to the residence.

This circumstantial evidence, recorded in the affidavit, is sufficient to establish the fair probability necessary to justify Dodt's decision to seek the arrest warrant.

b. Challenged Statements and Omissions

DiLosa alleges that Dodt included false and misleading statements in the affidavit and omitted evidence from it that supported DiLosa's version of the events. The Court must therefore determine whether DiLosa has shown that Dodt made any materially false statements and omissions intentionally or with reckless disregard for the truth, such that they should be disregarded or considered, respectively, in deciding whether there was probable cause to seek an arrest warrant. If there are such statements, the Court must then determine whether the affidavit as properly constituted provides probable cause.

i. Allegedly False Statements

DiLosa first contends that the affidavit Dodt submitted contained a number of false statements with respect to the DiLosas' financial situation prior to the murder. DiLosa contends that these errors are material because the state's case against DiLosa relied on such information to imply that DiLosa had a financial motive to murder his wife. Specifically, DiLosa points to statements that Glinda DiLosa told coworkers that a "foreclosure on the couple's condominium would take place" and that she was distraught because the couple missed a payment on the condominium. (Dodt Aff. at 13-14). DiLosa also challenges statements from several people that they knew or that Glinda DiLosa told them that the DiLosas were having financial difficulties before Glinda DiLosa's murder. DiLosa contends that these statements are false because no foreclosure was pending, the DiLosas had not missed a payment, a second residence in Kenner was in the process of being sold, DiLosa had $6,000 in his bank account, and he was timely meeting his financial obligations.

The Court finds that Dodt did not make any materially false statements about the DiLosas' financial condition in the affidavit. First, Dodt's affidavit includes information from DiLosa that the DiLosas were up to date on their condo payments and were close to selling the Kenner residence. Second, DiLosa has provided no evidence that the people Dodt quoted did not make the statements Dodt included in the affidavit, nor has he demonstrated that Glinda DiLosa did not make the challenged statements to those people. DiLosa instead contends that the DiLosas were not in fact facing a foreclosure on their condo and had not missed a payment. But that evidence does not demonstrate that the affidavit's statements about what Glinda DiLosa told others were false. DiLosa does not challenge the affidavit's statement that $45,000 plus interest was due on one of the couple's mortgages in six months. Dodt suggested in his report that Glinda DiLosa may have been concerned about a foreclosure because this balance, a substantial amount, would be due in six months.³ (Police Rep. of 12/27/86, R. Doc. 122, Def. Dodt's Mot. Summ. J., Ex. 2 at 148). Further, Dodt's report indicates that the prospective buyer of the couple's Kenner residence was having difficulty obtaining financing and that his loan was not approved until after Glinda DiLosa's death. ( Id. at 131). Glinda DiLosa and others could have perceived the DiLosas' financial situation to be troublesome despite the potential sale of the residence and the $6,000 the DiLosas had in savings. The statements DiLosa challenges are also corroborated by the statements of several other people, some of them close relatives. DiLosa has not produced any evidence to show that Glinda DiLosa did not make the challenged statements or that the affidavit's statements about Glinda DiLosa's and others' perceptions of the DiLosas' financial situation are materially false. Thus, the Court need not disregard them when determining whether probable cause existed.

3 DiLosa's own financial expert at trial testified that the balance of the note due in six months was at least $80,000. (R. Doc. 122, Def. Dodt's Mot. Summ. J., Ex. 1N at 91-92). He also testified that, even if the sale of the Kenner residence took place, the amount of equity the couple would have received from the sale was approximately $40,000 ( id. at 79), about half of the balance due on the condo note.

DiLosa also argues that Dodt's affidavit falsely states that an emergency medical technician was able to fit three to four fingers between the rope and DiLosa's wrist. The EMT gave sworn testimony before the grand jury to the same effect as the affidavit. (R. Doc. 122, Def. Dodt's Mot. Summ. J., Ex. 1E at 171). She later testified at trial that she had said she could get three to four fingers between the rope and DiLosa's ankle, not his wrist. ( Id., Ex. 1D at 712, 721). DiLosa has not shown that Dodt made a knowing or recklessly false statement. There is no evidence that Dodt knew or should have known that the EMT would later give different testimony at trial. See Freeman v. County of Baxter, 210 F.3d 550, 555 n. 3 (5th Cir. 2000) (holding that, because court looks to totality of circumstances at the time the officer determines whether probable cause exists, a witness's subsequent recanting of her original statement does not create a genuine issue as to the truthfulness of an affidavit that is based on the original statement). Furthermore, DiLosa does not dispute the affidavit's statements that several personnel at the crime scene thought the ropes on his wrists were loose (Dodt Aff. at 16, 17) and that the officer who initially cut the ropes thought that the ropes were escapable ( id. at 2). DiLosa also produces no evidence that Darrel Wood, the other EMT at the scene, who likewise said that he put four fingers between DiLosa's wrist and the rope, made a false statement. ( Id. at 16). These unchallenged statements corroborate and permit the same inferences as the statement DiLosa challenges. The Court therefore finds that the inclusion of the challenged statement was not materially false or misleading.

ii. Alleged Omissions

DiLosa also asserts that Dodt omitted from the affidavit various pieces of information that supported DiLosa's version of the events surrounding his wife's murder. Although material omissions from the affidavit may also violate DiLosa's right to be free from arrest without probable cause, an affidavit that contains omissions of potentially exculpatory information is less likely to present a question of impermissible official conduct that one that affirmatively includes false information. Cleveland, 964 F. Supp. at 1077 (citing United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir. 1997); United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990); United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). Furthermore, the omissions must be material to the determination of probable cause; if the omitted material would not affect the determination of probable cause, there is no violation of DiLosa's rights. See Namer, 680 F.2d at 1094; Freeman, 210 F.3d at 555.

Evidence of the DiLosas' Financial Condition

DiLosa first alleges that Dodt omitted facts relating to the DiLosas' financial condition before the murder. He argues that the affidavit omitted that the DiLosas' condominium was in the process of being sold, that DiLosa had $6,000 in his bank account, and that DiLosa was timely meeting his financial obligations. But DiLosa's contention that Dodt omitted information from the affidavit is inaccurate. The affidavit explicitly states that DiLosa and his wife "were near to selling their residence in Kenner. They received rent on the residence. They were up to date on their condominium payments. [DiLosa] stated he had $6,000.00 in his bank accounts." (Dodt Aff. at 12). Dodt included this information in the affidavit, and it was properly considered in the probable cause determination.

DiLosa next complains that Dodt omitted that a $100,000 policy on Glinda DiLosa's life was a joint policy purchased by the DiLosas on each other, and that it replaced a $500,000 policy that had expired when DiLosa was laid off. DiLosa does not dispute the affidavit's statement that Glinda DiLosa was nevertheless covered by $256,000 in life insurance at the time she was murdered,⁴ nor does he dispute that he was the beneficiary of those policies. That the life insurance policy was purchased by the DiLosas on each other and that there was at one time a larger insurance policy are not material to the determination that probable cause existed for the arrest. Because this information is not a material omission, the Court need not consider it in the probable cause determination.

4 This amount includes $146,000 in double indemnity policies and $110,000 in other policies. (Police Rep. at 136).

Physical Evidence

DiLosa next argues that the omission of material physical evidence from the affidavit made it misleading. DiLosa seems to argue that because the habeas court determined that Dodt's police report and the potentially exculpatory evidence it contained was not turned over to the defense prior to trial in violation of DiLosa's rights, that violation means that probable cause did not exist for his arrest. (R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J. at 9). The habeas court determined that the prosecutors withheld evidence from DiLosa that reasonably could undermine the confidence of a reasonable jurist in the conviction. The court found that the withheld information was material for purposes of determining whether there was a violation of Brady v. Maryland, 337 U.S. 83 (1963), because the defense could have used the information to create reasonable doubt about DiLosa's guilt at trial. DiLosa, 279 F.3d at 264. The Brady violation was committed by the prosecutors, not by Dodt, who delivered a copy of the investigation report to the Jefferson Parish District Attorney's Office on January 2, 1987, two weeks before DiLosa was indicted. That violation was addressed by the grant of DiLosa's writ of habeas corpus. The prosecutors are absolutely immune from a section 1983 action for damages for a Brady violation that occurred when they were initiating a prosecution and presenting the State's case. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

The mere existence of some quantum of potentially exculpatory information that the habeas court determined was material for purposes of deciding whether there was a Brady violation does not require the Court to conclude that there was not probable cause to arrest DiLosa. Indeed, Brady's mandate that exculpatory material be produced to the defense necessarily implies that there can be probable cause to arrest a suspect even when potentially exculpatory information exists. Furthermore, the habeas court did not find a lack of probable cause to arrest DiLosa. Rather, it found that the prosecutors should have turned over Dodt's report to the defense because it contained information that could have been used to cast a reasonable doubt on DiLosa's guilt at trial. DiLosa's attempt to recover damages for unlawful arrest from a police officer engages the Court in a different inquiry from that faced by the habeas court, namely, whether information material to probable cause, not to reasonable doubt about DiLosa's guilt for Brady purposes, was intentionally or recklessly excluded from the affidavit used to seek a warrant for DiLosa's arrest, and whether a properly constituted affidavit still contained probable cause. Although this inquiry may be related to the habeas court's finding that the withheld evidence was material to a finding of reasonable doubt about DiLosa's guilt, it involves a different standard, a different state actor, and a different stage of the criminal justice process.

Hair Evidence. DiLosa's first argument about the physical evidence is that Dodt omitted material facts from his affidavit concerning evidence of hairs found at the crime scene. Dodt had access to two sources at the time he submitted the affidavit for DiLosa's arrest that contained information about hair evidence: Dodt's December 28, 1986 police report, which is a running chronology of his investigation, and analyst Joseph Warren's official expert report on the outcome of his analysis of the hair. Warren's expert report is dated October 2, 1986 and indicates that it was forwarded to Dodt. Dodt testified at his deposition that he left the "technical stuff" up to the experts. (R. Doc. 122, Def. Dodt's Mot. Summ. J., Ex. 7, Dep. of Douglas Dodt of 10/13/04 at 78).

DiLosa's first contention is that Dodt's omission of any mention of a hair found on the fitted sheet of the bed on the left side of Glinda DiLosa's body made the affidavit misleading. In Dodt's report, Dodt records that an officer at the scene told Dodt that he had seen a curly black hair on the sheet that appeared to be a "negroid type hair." (Police Rep. at 97). The sheets and their contents were collected and sent to the lab on the day of the homicide. According to Dodt's report, on October 10, 1986, Warren determined that this hair was in fact pubic hair and that none of the hairs on the sheet were "obviously negroid." ( Id.). Dodt's report also states that when Warren checked the hairs on the sheet again on October 16, he "was unable to locate any Negroid type head or pubic hair." ( Id. at 104-05). Warren's official expert report indicates that human Caucasian head hairs and human pubic hairs were found on specimen #6, the fitted sheet. (R. Doc. 160, Def. Lee, Warren and Boling's Supp. Mem. to Pl.'s Opp. to Def. Dodt's Mot. Summ. J., Ex. D at 2). Warren reported that the analysis he conducted to determine whether the head hairs matched DiLosa's head hair was inconclusive. ( Id.) He testified at his deposition that he was unable to determine the race of the pubic hair and that he only felt comfortable concluding that it was human. (R. Doc. 160, Def. Lee, Warren and Boling's Mem. in Support of Summ. J., Ex. G, Dep. of Joseph Warren of 10/14/2004 at 36, 39). He explained that in his discipline "[i]nconclusive is a professional opinion. It basically means that the item of evidence does not have enough information in order for myself or any forensic scientist to come either to say it was a match, nonmatch, consistent with, not consistent with, etc. The information was just not there." ( Id. at 50).

There is no evidence that, at the time he submitted his affidavit, Dodt knew that there were Negroid hairs on the DiLosas' bedsheet (or, for that matter, that there were in fact such hairs). Dodt's report indicates that Warren told him that he had in essence ruled out the presence of Negroid hair. Warren's official conclusion was that human Caucasian head hairs and human pubic hairs were found on the sheet, and that further analysis was inconclusive. An inconclusive analysis that neither implicates nor exonerates a section 1983 false arrest plaintiff need not be considered in determining whether probable cause to arrest the plaintiff existed. See Freeman, 210 F.3d at 555 (holding that when the results of a latent fingerprint analysis were inconclusive and neither implicated nor exonerated a section 1983 plaintiff suing for false arrest, the officer did not err by omitting the results from the affidavit). The Court therefore finds that, given the state of the information available to Dodt about the bedsheet hair, Dodt did not act with reckless disregard for the truth when he did not include it in the affidavit.

DiLosa next challenges Dodt's failure to mention hair found on the duct-taped pane of glass that was cut out of the window. According to Dodt's report, on September 30, 1986, Warren discovered two hairs on the pane of glass with the duct tape attached to it, between the tape and the pane. (Police Rep. at 68). Dodt reported that Warren said that one of the hairs was "definitely a brown Caucasian type short head hair," and the other was "animalistic or Negroid hair" that "had more animalistic characteristics than human." ( Id. at 68, 83). On October 8, Dodt recorded that Warren advised that "he had compared the animalistic hair found on the pane. He believed that it was a fiber probably from the packaging of the tape." ( Id. at 93). As for the other hair, on November 7, Dodt recorded that "Warren advised that he had compared the hair found on the pane of broken and cut glass to the known samples taken from Douglas DiLosa. They did not match." ( Id. at 126). Warren's expert report, however, mentions only "a hair" present on sample #13, the pane of glass, and states that "further analysis was not possible because of the small amount present." (Def. Lee, Warren and Boling's Mem. in Support of Def. Dodt's Mot. Summ. J., Ex. D at 2). At his deposition, Warren stated that he did not recall telling Dodt that the glass hair did not match DiLosa's, and if he had felt that "he could come to any decision whatsoever as to who that hair could or could not have come from," he is sure it would have been in his report. (Warren Dep. at 43:4-7).

Beginning with the "animalistic" hair, the Court concludes that there is no evidence that Dodt had reliable identifying information about this "hair" that should have been disclosed in his affidavit. According to Dodt's report, Warren could not even determine that it was hair, much less human "Negroid" hair that would support DiLosa's version of the events. In addition, Warren's official report appears to have made no mention of this "hair." Furthermore, the information Dodt noted in his police report did not on its face exonerate or inculpate DiLosa. The Court therefore finds that Dodt did not act with reckless disregard for the truth when he did not include this hair evidence in the affidavit.

As for the brown hair on the glass, the information available to Dodt was that Warren told him this Caucasian hair was not DiLosa's⁵ and that Warren's report said that his analysis was inconclusive. Dodt was not the expert, and, with respect to this hair, Warren testified that any professional opinion that he felt was warranted would have been in his expert report. (Warren Dep. at 43:4-7). Dodt would not have acted with reckless disregard for the truth if he relied on Warren's official determination that his analysis was inconclusive, rather than on statements Warren made during various stages of the investigation. Again, an inconclusive analysis that neither supports DiLosa's version nor inculpates him need not be considered in the determination of probable cause. See Freeman, 210 F.3d at 555. DiLosa argues that Warren's true conclusion is his statement, noted in Dodt's report, that the hair was not DiLosa's. Even accepting DiLosa's assertion as true, disclosure of Warren's statement by Dodt would not have altered the probable cause determination. The hair was described as brown Caucasian head hair, which did not support DiLosa's version of events. Considering all the other circumstantial evidence of DiLosa's guilt, the existence of another Caucasian's hair on glass in a home inhabited by Caucasians is not necessarily inconsistent with DiLosa's guilt.

5 Warren indicated that he may have been speculating at the time he conveyed this information to Dodt, before he came to an official conclusion. (Warren Dep. at 35:1-7).

Finally, DiLosa challenges Dodt's failure to mention a hair that was found on the rope around Glinda DiLosa's neck. Dodt's report states that Warren advised him that this hair was "of unknown origin, definitely not Caucasian head or pubic hair." (Police Rep. at 104). Dodt's report does not state that he was told the hair was human hair. Warren's expert report, however, states that on sample #26, the rope in question, "human hair" was found, but "further analysis was inconclusive." (Def. Lee, Warren and Boling's Mem. in Support of Summ. J., Ex. D at 2). Warren testified at his deposition that all he could tell about this hair was that it was a hair. (Warren Dep. at 50:13-22). Putting aside that Warren's report said that the analysis of this hair was inconclusive, and accepting the facts in the light most favorable to DiLosa, which is that Dodt's only information was that the hair was "of unknown origin, definitely not Caucasian head or pubic hair," the Court finds that disclosure of this information would not have altered the probable cause determination. Dodt's notation that he was advised that the hair on the rope was not Caucasian head or pubic hair is consistent with the possibility that the hair was a "negroid" hair. Nevertheless, the probable cause standard requires merely evidence sufficient to support a "fair probability" that the suspect committed the crime. In light of this standard and all the other circumstances suggesting DiLosa's guilt, and considering that the hair could have gotten on the rope before the night of the murder and that there was no conclusive identification of the hair as a "Negroid" hair, the Court finds that information from Dodt's report about the hair on the rope would not have been sufficient to negate the "fair probability" that DiLosa committed the crime.

Fingerprint Evidence. Next, Dilosa argues that Dodt omitted material facts from his affidavit concerning fingerprints found at the crime scene. DiLosa first complains that the affidavit omitted that desk drawers that were ransacked during the incident revealed fingerprints that the expert eventually determined did not belong to either of the DiLosas. At the time he submitted the affidavit supporting DiLosa's arrest warrant, Dodt had information about fingerprint evidence that was reflected in his police report and in two expert reports relating to latent fingerprints that showed him as a recipient.

DiLosa's first complaint is that Dodt omitted evidence that fingerprints were found on a drawer in the house. Dodt's report states that four wooden drawers that had been removed from the desk during the incident were treated for fingerprints. (Police Rep. at 64, 66). Latent prints appeared, but Dodt's report contains no information about identification of the prints. ( Id.). DiLosa relies on the grand jury testimony of latent fingerprint expert Merril Boling, which DiLosa interprets as a statement that Boling was able to identify the prints as not belonging to either of the DiLosas.⁶ DiLosa asserts that Dodt should have included that identification information in the affidavit. Even if the Court credits DiLosa's interpretation of Boling's testimony, Boling testified on January 15, 1997, after Dodt submitted his affidavit. DiLosa has not shown that Dodt knew of Boling's conclusion as to identification at the time he submitted his affidavit. Dodt's report indicates that he attached Boling's expert report (Police Rep. at 148), but Boling's report does not mention the fingerprints on the drawer (R. Doc. 160, Def. Lee, Warren and Boling's Mem. in Support of Summ. J., Ex. A at 2), nor does the report signed by Ronald Singer, the Director of the Jefferson Parish Sheriff's Office Crime Laboratory. (R. Doc. 138, Def. Dodt's Reply Mem. to Pl.'s Opp. to Def. Dodt's Mot. Summ. J., Ex. D at 3-4). Nothing shows that, at the time Dodt submitted the affidavit, he understood that the drawers contained useful prints. (Dodt Dep. at 67-69). The Court cannot find that Dodt acted with reckless disregard for the truth by omitting information that there is no evidence he had. Further, contrary to DiLosa's contention, Dodt did state in the affidavit what the evidence demonstrates that he knew about the drawers at the time he submitted the affidavit, which was that the drawers had begun to reveal prints. (Dodt Aff. at 9). Finally, considering all the other circumstantial evidence of DiLosa's guilt, the possible presence of fingerprints that did not belong to DiLosa or his wife is not necessarily inconsistent with DiLosa's guilt. The fingerprints were not necessarily left on the night of the murder. They might have been left by an accomplice, by a visitor to the house or by the DiLosa children, and they do not outweigh the other evidence that supports finding a fair probability of DiLosa's guilt.

6 DiLosa relies on the following grand jury testimony to infer that Boling was able to identify the prints to the extent necessary to tell that they did not belong to DiLosa or his wife:

Q: And did you make an effort to identify any prints belonging to non family members inside the house?

A: The only other prints I have is the victims. We have the drawers. The drawers themselves are better. I have been unsuccessful in attempting to identify these fingerprints that were made on the inside of the drawers.

(R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J., Ex. 2 at 14).

DiLosa also objects to Dodt's omission of information about a partial fingerprint on the duct-taped glass pane. On October 7, Dodt indicates in his report that a partial print had been revealed on the glass pane, and that Merril Boling would examine the print the next day. (Police Rep. at 86). On October 16, Dodt's report documents that Boling told Dodt the print on the pane was "a partial print with the center missing." ( Id. at 105). Dodt's report contains no indication that the print was identified when Dodt submitted his affidavit. ( Id. at 86). Dodt testified that he understood that the print was unidentifiable. (Dodt Dep. at 67:12-21). His understanding was consistent with both fingerprint analysis reports, which omit any mention of the partial print on the glass pane. (R. Doc. 160, Def. Lee, Warren and Boling's Mem. in Support of Summ. J., Ex. A; R. Doc. 138, Def. Dodt's Reply Mem. to Pl.'s Opp. to Def. Dodt's Mot. Summ. J., Ex. D at 3-4). Boling testified that the print was omitted from his report because it was not identifiable, meaning it could not be matched to DiLosa or to anyone else. (R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J., Ex. 8 at 50:20-25). DiLosa has not provided any evidence to show that Dodt had any material knowledge with respect to the partial print that he should have disclosed. A partial print that cannot be matched to DiLosa or anyone else need not be considered in the determination of whether there was probable cause to arrest DiLosa. See Freeman, 210 F.3d at 555. Thus, Dodt did not act with reckless disregard for the truth in omitting the information from his affidavit.

Footprints. Finally, DiLosa contends that Dodt omitted material facts about footprints on the lawn behind the residence. Dodt stated in the affidavit that one of the officers on the scene could not see footprints in the dew on the lawn when he arrived at the scene, which implied that no one walked up to or away from the house. (Dodt Aff. at 5). DiLosa contends that Dodt's affidavit should have included information that was in his report about a second officer, who also stated that he could not see footprints on the lawn, even though the first officer had walked across it. (Police Rep. at 99). The Court finds that this evidence is neither material nor "clearly critical" to the determination of probable cause, and that Dodt therefore did not act with reckless disregard for the truth when he failed to include it in the affidavit.

Information from People in the Area on the Night of the Murder

DiLosa contends that Dodt omitted important facts provided by people in the area on the night of the murder. Dodt included numerous statements from residents in the complex that they had not seen or heard anything suspicious on the night of the murder. (Dodt Aff. at 10-11). That information includes statements from neighbors who lived in the same building as the DiLosas and from neighbors who had a view of the well-lit patio in the rear of the DiLosa's apartment. ( Id.) DiLosa, however, objects to the omission of information provided by Barbara Warbritton, who lived in apartment 3A, four buildings away. Ms. Warbritton told Dodt that around 2:30 on the morning of the murder she was awakened by a noise in the patio area of her condominium. (Police Rep. at 53). She saw a shadow on the patio that she thought was either a large dog or a crouching human that moved onto the street. She told her sons, who went outside and found the gate open. Dodt found apparent pry marks on the sliding glass door leading to the patio, and the Warbrittons stated that they had not seen the marks before. Dodt testified that he did not include this information in his affidavit because he concluded that, based on his investigation, no attempted burglary occurred that night. (Dodt Dep. at 59-63). An expensive bicycle on the patio was not taken. ( Id. at 59-60). One of the windows next to the door was unlocked and could have been opened easily. Dodt said he interviewed a young man in the apartment with Ms. Warbritton who told him that a tree limb could have caused the shadow that Ms. Warbritton saw. ( Id.).

The Court finds that Dodt did not recklessly disregard the truth when he omitted this material from the affidavit, because it would not have affected the probable cause determination. Ms. Warbritton was unable to tell whether the shadow she saw was even human, much less its race. She did not report seeing two people. Dodt noted that there were indications that there was no attempted burglary. Further, there was no indication of attempted use of tape and glass cutter, such as DiLosa contends was used to enter his home. Dodt did not act recklessly when he concluded, based on his investigation and experience, that any events at the Warbrittons' residence were not related to the DiLosa investigation and did not affect the determination of whether there was probable cause to arrest DiLosa.

DiLosa also contends that Dodt should have included the fact that at 5:45 a.m., a taxi driver outside of apartment 27A stated that he saw two black men in a vehicle leaving the complex and that the driver looked tense because he was driving so slowly. (Police Rep. at 55-56). Building 27A is south of building 7 where DiLosa's condo was located. Dodt's report also indicates that he investigated further and determined that the taxi driver identified the wrong building. Moreover, 5:45 a.m. was after the police arrived at the scene, and DiLosa timed the forced entry two hours before. Any burglars would have had ample time to flee. The Court finds that there is insufficient basis to conclude that the taxi driver's information would have affected the probable cause determination. The presence of two black men in a car on a public street in a condo complex of more than 27 buildings with a black tenant ratio of approximately 18 percent (Police Rep. at 97) two hours after the incident at issue does not weigh significantly in the probable cause determination.

Conclusion on Probable Cause

In summary, the Court does not find that any of the allegedly false statements or omissions, either alone or together, warrant a finding that there was an absence of probable cause to arrest DiLosa.

c. "No Reasonable Officer" Test

Even if the Court were to conclude that probable cause did not exist to arrest DiLosa, Dodt would still be entitled to qualified immunity unless DiLosa were able to show that no reasonable officer could have believed that probable cause existed. See Saucier, 533 U.S. at 202; Estep, 310 F.3d at 366. In other words, Dodt would not lose qualified immunity unless there was not even arguable probable cause for the arrest. See Malley, 475 U.S. at 344-45. The Court is unable to say that no reasonable officer could find that probable cause existed to arrest DiLosa based on the circumstances described above and the reasonable inferences to be drawn from those facts. Thus, even if Dodt were mistaken in finding probable cause to arrest DiLosa, he would still be entitled to qualified immunity.

2. Conspiracy

DiLosa also argues that Dodt violated section 1983 by conspiring with Joseph Warren, the expert who evaluated the hair evidence. In support of his claim, DiLosa contends that Dodt and Warren discussed the facts about the hair evidence and then lied about those facts at trial. Dodt moves for summary judgment on the ground that there is no evidence of a conspiracy between Dodt, Warren, and/or Boling. To prevail on a section 1983 civil conspiracy claim, a plaintiff must show: (1) an agreement to commit an illegal act between the defendant and at least one other person acting under color of state law; and (2) an actual deprivation of the plaintiff's constitutional rights in furtherance of that agreement. McCall v. Peters, No. Civ.A. 3:00-CV-2247-D, 2003 WL 21488211, at *8 (N.D. Tex. May 12, 2003), aff'd, 2004 WL 1842567 (5th Cir. Aug. 18, 2004). DiLosa has failed to offer any evidence to establish that Dodt and Warren made an agreement to commit an illegal act. DiLosa admitted in his deposition that he has no evidence to support his allegation that there was a conspiracy between Dodt, Warren, and Boling, or between any two of the three. (Def. Dodt's Mot. Summ. J., Ex. 3, DiLosa Dep. at 21-22, 33). Because DiLosa has failed to offer evidence sufficient to support an element of his section 1983 civil conspiracy claim, the Court grants Dodt's motion for summary judgment on this claim as well. To the extent that DiLosa alleges that Dodt and Warren violated section 1983 by giving false testimony at trial, Dodt and Warren are absolutely immune from a section 1983 suit for testimony they gave in a criminal trial. Mowbray v. Cameron County, Texas, 274 F.3d 269, 278 (5th Cir. 2001).

C. Section 1983 Claims Against the City of Kenner

DiLosa alleges that the City of Kenner is liable under 42 U.S.C. § 1983 "for failure to institute appropriate training of [its] officers, Douglas Dodt and/or Merril Boling, and [for failure] to institute a policy among Kenner police officers concerning the necessity of giving accurate and truthful testimony at trial." (Pl.'s Compl., at ¶ 41). The City asserts that it is entitled to summary judgment because DiLosa fails to allege and produce evidence to support the essential elements of this cause of action. DiLosa has not responded to this motion for summary judgment.

A municipality cannot be held liable under a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Rather, a plaintiff seeking to impose liability on a municipality under section 1983 must identify a municipal "policy" or "custom" that caused the plaintiff's injury. Id. at 694. DiLosa's allegation that the City failed to properly train its police officers "may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Canton v. Harris, 489 U.S. 378, 388 (1989). The Court explained that only when there is a "deliberate indifference" to constitutional rights can an alleged failure to train "be properly thought of as a city `policy or custom' that is actionable under § 1983." Id.; Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). DiLosa's theory therefore requires proof that the City was deliberately indifferent to constitutional rights. To prove deliberate indifference, a plaintiff must generally show more than a single instance where a lack of training caused a violation of constitutional rights. Burge, 336 F.3d at 370. Instead, a plaintiff must show that the lack of training caused a pattern of similar violations. Id.

Here, DiLosa fails to provide any summary judgment evidence that the City engaged in a policy or custom of failing to train its police officers adequately about the importance of testifying truthfully at trial, about obtaining probable cause for arrest, or about any other matter. DiLosa also does not allege or provide evidence that any failure to train resulted in any other incident in which an individual's federal constitutional rights were violated. Furthermore, DiLosa has not alleged and offers no evidence that the City acted with deliberate indifference as to the known or obvious consequences of its actions on constitutional rights. Without evidence that shows a pattern of conduct or a continued adherence to a policy, DiLosa cannot raise a genuine issue as to whether the City acted with deliberate indifference. The City's motion for summary judgment on DiLosa's section 1983 claims is granted.⁷

7 DiLosa's complaint also alleges a cause of action against Nicholas Congemi in his official capacity as Chief of Police of the City of Kenner. An official-capacity suit is treated as a suit against the City of Kenner, see Hafer v. Melo, 502 U.S. 21, 25 (1991), and it is dismissed for the same reasons.

D. Dennis and Denise DiLosa's Federal and State Law Claims Against Dodt and the City of Kenner

Dennis and Denise DiLosa, Douglas DiLosa's children, allege that they "are entitled to recover damages against defendants jointly, severally and solidarily for loss of services, loss of support, loss of wages and loss of nurture and guidance, mental and emotional distress." (Pl.'s Second Supp. and Am. Compl., at ¶ 51(a)). The DiLosa children allege that their "right to recovery arises either directly pursuant to 42 U.S.C. § 1983 et seq. and/or as a loss of consortium claim derivative of Douglas DiLosa's cause of action and allowed pursuant to 28 U.S.C. § 1367." ( Id.)

Assuming arguendo that the DiLosa children may recover damages for the loss of their father's society and comfort resulting from the deprivation of his constitutional rights, there can be no such recovery in this case. The DiLosa children's section 1983 claim for loss of society and comfort depends on a showing that the defendants violated their father's constitutional rights. See Rhyne v. Henderson County, 973 F.2d 386, 391-92 (5th Cir. 1992); Benavides v. County of Wilson, 955 F.2d 968, 975 (5th Cir. 1992). Because the Court has found that Dodt and the City of Kenner did not violate DiLosa's constitutional rights and has granted summary judgment against DiLosa on his section 1983 claims, the DiLosa children's section 1983 claim for loss of comfort and society is also barred.

The DiLosa children also assert that they are entitled to damages for loss of comfort and society that resulted from the actions challenged by their father's state law tort claims. Because the Court finds below that all of Douglas DiLosa's state law tort claims are fatally defective or prescribed, the DiLosa children's claims for damages are likewise defective or prescribed.

E. DiLosa's State Law Claims Against Dodt and the City of Kenner

When all federal claims are eliminated from a case prior to trial, the general rule is for the federal court to decline to exercise jurisdiction over pendent state law claims, but "this rule is neither mandatory nor absolute." Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002). In Amedisys, the Fifth Circuit held that the district court did not abuse its discretion when it decided to retain jurisdiction over the plaintiff's discrimination claims under Louisiana law after the plaintiff's federal claims were dismissed. Id. The Fifth Circuit reached its conclusion because the lawsuit was in the advanced stages of litigation and the trial court "had substantial familiarity with the merits of the case." Id. (citations omitted). Here, the lawsuit before the Court is also in an advanced stage. Discovery is complete, and the parties are on the eve of trial. The Court is familiar with the merits of DiLosa's claims and has spent substantial time reviewing the pleadings and researching the legal issues involved. The Court concludes, as did the district court in Amedisys, that the factors of judicial economy, convenience, fairness and comity weigh in favor of retaining jurisdiction over plaintiff's state law claim. Thus, the Court will exercise supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(c).

1. False Arrest

DiLosa sues Dodt and the City of Kenner for the state law tort of false arrest. DiLosa alleges that the affidavit Dodt submitted contained inaccurate information and omitted exculpatory information that, if included, would have resulted in a finding that there was not probable cause to arrest DiLosa. Defendants move for summary judgment, arguing that the claim is prescribed by the Louisiana statute of limitations. The Court agrees.

The tort of false arrest is subject to a one-year prescription period. See Schrader v. Coleman E. Adler Sons, 72 So.2d 872, 873 (La. 1954); LA. CIV. CODE art. 3492. The prescriptive period begins to run, at the latest, on the day DiLosa was released from prison.⁸ See De Bouchel v. Koss Const. Co., 149 So. 496 (1933); Hampton v. Kroger Co., 658 So.2d 209 (La.App. 2 Cir. 1995). DiLosa was released from prison on January 8, 2001. ( See R. Doc. 136, Def. Dodt and the City of Kenner's Reply Mem. to Pl.'s Opp. to Def.'s Mot. Summ. J. on Pl.'s State Law Claims, Ex. A). DiLosa filed this lawsuit on January 31, 2003. Over two years passed between the date he was released from prison and the date he filed this lawsuit. His claim of false arrest is prescribed and defendants are entitled to summary judgment.

8 DiLosa cites Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La.App. 5th Cir. 1990), for the proposition that the "prescription of one year begins to run when the person is released from prison and has been found innocent of the crime for which he has been incarcerated." This statement of the law by the Restrepo court is dicta, and the court relies on a federal district court opinion, Lathon v. City of Jefferson, 358 F. Supp. 558, 559 (E.D. La. 1973), that never states that proposition. Accordingly, the Court finds this statement of the law to have little precedential value.

2. Defamation

DiLosa alleges in his complaint that Dodt and the City of Kenner defamed him "by advising members of the public, DiLosa family members, and the press" that he was a "murderer and that there was no evidence to support his version of the events of the night in question." (Pl.'s Compl. at ¶ 48). In discovery responses, DiLosa contends that Dodt told various witnesses that DiLosa was "a cold-blooded, ruthless murderer" and that there was overwhelming evidence to convict him, which resulted in the witnesses turning against DiLosa and giving false testimony. Defendants move for summary judgment, arguing that the claim is prescribed by the Louisiana statute of limitations. The Court agrees.

Defamation, like false arrest, is subject to a one-year prescriptive period that runs from the day injury or damage is sustained. Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So.2d 725, 730 (La.App. 5 Cir. 2001). Dilosa relies on case law that states that "an action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated." Waguespack v. Judge, 877 So.2d 1090, 1093 (La.App. 5 Cir. 2004); Nolan, 790 So.2d at 730. The rule suspending prescription does not apply to this case for two reasons. First, the suspension applies only to allegedly defamatory statements made by parties to a lawsuit, see James v. Clark, 767 So.2d 962, 964 (La.App. 1 Cir. 2000), and Dodt is not a party to the criminal lawsuit against DiLosa. Second, DiLosa does not assert that Dodt made the allegedly defamatory statements in judicial proceedings. DiLosa thus cannot take advantage of the suspension of prescription for allegations of defamation made in judicial proceedings and against a party to those proceedings.

The prescriptive period on DiLosa's claim that he was defamed by Dodt runs from the date DiLosa was injured by witnesses' testimony that was allegedly influenced by DiLosa's defamatory statements. That testimony was given at DiLosa's murder trial, which occurred in July of 1987, more than one year from the date he filed this lawsuit, January 31, 2003. Thus, DiLosa's defamation claim is prescribed.

3. Intentional Infliction of Emotional Distress

DiLosa alleges in his complaint that Dodt inflicted emotional distress by depriving him of exculpatory evidence necessary and vital to his defense. (Pl.'s Compl. at ¶ 47). Defendants move for summary judgment on the ground that this claim is prescribed. DiLosa, however, appears to abandon this claim, stating that "apparently, there is no separate claim for intentional infliction of emotional distress." (R. Doc. 129, Pl.'s Mem. Opp. Def. Dodt and the City of Kenner's Mot. Summ. J. on State Law Claims, at 3). In any event, intentional infliction of emotional distress is subject to the same one-year prescription period as false arrest and defamation. Hazey v. McCown, 818 So.2d 932, 935 (La.App. 1 Cir. 2002). The events DiLosa asserts gave rise to the claim occurred before DiLosa's July 1987 trial. More than a year passed between that date and the filing of this lawsuit. Because DiLosa has abandoned his intentional infliction of emotional distress claim and because that claim is prescribed, defendants are entitled to summary judgment.

4. Malicious Prosecution

Defendants Dodt and the City of Kenner move for summary judgment on DiLosa's malicious prosecution claim. They argue that to withstand summary judgment, DiLosa must produce evidence sufficient to raise a genuine issue as to a number of elements, including whether Dodt caused a criminal proceeding to be commenced or continued in the absence of probable cause for such proceeding. See Miller v. East Baton Rouge Parish Sheriff's Office Dep't, 511 So.2d 446, 452 (La. 1987). Defendants argue that DiLosa has failed to meet his summary judgment burden on the element of absence of probable cause. Since the Court has found that Dodt had probable cause to arrest DiLosa, the Court agrees that DiLosa cannot show that Dodt commenced a proceeding against DiLosa in the absence of probable cause. Thus, DiLosa cannot establish this element of a malicious prosecution claim, and his claim is dismissed.

5. Conspiracy

DiLosa alleges that Dodt conspired in violation of state law to withhold exculpatory evidence and to commit the foregoing state law torts. Defendants Dodt and the City of Kenner apparently argue that the conspiracy claim has prescribed and that DiLosa admitted in his deposition that he has no evidence that there was a conspiracy between Dodt and other defendants. (Def. Dodt's Mot. Summ. J., Ex. 3, DiLosa Dep. at 21-22, 33).

Here, DiLosa did not sue any of the alleged conspirators until well after the one-year prescriptive period, and thus any claims of conspiracy arising out of the facts alleged are prescribed. DiLosa was aware of all of the facts necessary to bring a conspiracy claim by 1994 when he received Dodt's report and did not file a claim until January 31, 2003. Furthermore, not only has DiLosa not submitted any record evidence that would raise a genuine issue as to whether defendants engaged in a conspiracy to withhold evidence, he has also testified that he has no such evidence. (R. Doc. 122, Def. Dodt's Mot. Summ. J., Ex. 3, DiLosa Dep. at 21-22, 33). Because DiLosa has failed to meet his summary judgment burden, his conspiracy claim is dismissed.

6. DiLosa's Claims Against the City of Kenner

DiLosa asserts all his state law tort claims against the City of Kenner on a theory of respondeat superior. Because DiLosa has not withstood summary judgment on any of his underlying state law claims against Dodt, the claims against the City of Kenner are also dismissed.

F. DiLosa's Claims Against Harry Lee, Joseph Warren and Merril Boling

1. Section 1983 Claims

DiLosa alleges that Harry Lee, in his official capacity as Sherriff of Jefferson Parish, is liable under 42 U.S.C. § 1983 "for failure to institute appropriate training of his officers, in particular, Joseph Warren and/or Merril Boling, and that he failed to institute a policy among his employees concerning the necessity of giving accurate and truthful testimony." (Pl.'s Compl. at ¶ 43). Lee moves for summary judgment, arguing that DiLosa fails to allege and produce evidence to support the essential elements of this cause of action. DiLosa does not oppose this motion.

DiLosa's suit against Lee in his official capacity as Sheriff of Jefferson Parish is treated as a suit against Jefferson Parish. See Hafer, 502 U.S. at 25. The Court has already found that DiLosa failed to carry his summary judgment burden on a similar claim against the City of Kenner. See supra, at III.C. For the same reasons, DiLosa has failed to carry his summary judgment burden on his claim against Sheriff Harry Lee. Lee's motion for summary judgment on DiLosa's section 1983 claim against him is granted.

DiLosa next alleges that Merril Boling violated section 1983 by withholding and conspiring to withhold evidence from the prosecutors and from DiLosa. Boling moves for summary judgment on this claim, arguing that there is no evidence to support the allegations. According to Boling, the evidence shows that he completed a report that properly contained his findings about the fingerprint evidence and submitted it to Dodt, so he did not withhold any evidence. DiLosa does not oppose this motion.

The Court finds that DiLosa's claim that Boling violated section 1983 by withholding exculpatory Brady material is without merit. Brady imposes a duty on prosecutors to share exculpatory evidence with the defense and is not generally extended to police officers or lab technicians. Mowbray v. Cameron County, Texas, 274 F.3d 269, 278 (5th Cir. 2001). The few decisions that have extended Brady duties to officials other than prosecutors have involved allegations of intentional or bad faith failure to disclose Brady material to all parties, including the prosecution. Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004); see also Mowbray, 274 F.3d at 278 n. 5 (declining to extend Brady to officials other than prosecutors because plaintiff did not allege that the officials elicited false evidence or deliberately concealed exculpatory evidence from all parties, including the prosecution); cf. Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (finding that qualified immunity would be defeated if a police officer procured false identification by unlawful means or deliberately concealed exculpatory evidence in context where prosecutors were not subject to same allegations).

Here, although DiLosa alleged in his complaint that Boling deliberately failed to provide exculpatory fingerprint evidence to the prosecutors and to DiLosa, he has not briefed this issue or pointed to evidence in support of that allegation. The Court's review of the record reveals that the only evidence that Boling had arguably obtained identifiable third-party prints was a statement Boling made before the grand jury in the presence of the prosecutors. (R. Doc. 130, Pl.'s Mem. Opp. Def. Dodt's Mot. Summ. J. at 11-12). Because the Fifth Circuit has held that Brady does not extend to officials other than prosecutors except when those officials deliberately conceal evidence from all parties, including the prosecution, see Mowbray, 274 F.3d at 278, and because Boling made the statement DiLosa relies on in the presence of the prosecutors, this claim must fail.

DiLosa brings the same section 1983 cause of action for withholding evidence against Joseph Warren as he does against Boling, arguing that Warren failed to disclose exculpatory information that he had reported to Dodt to DiLosa or to the prosecutors. The Court's analysis of the scope of a technician's Brady obligations is the same for Warren as it was for Boling. Thus, Warren cannot be liable for a section 1983 Brady violation when the information at issue was disclosed to the prosecutors. DiLosa does not brief or point to evidence in opposition to Warren's motion. Most tellingly, however, the record is clear that the information DiLosa relies on was in Dodt's report, which was undisputedly turned over to the prosecutors before DiLosa was indicted. DiLosa's section 1983 claim against Warren for withholding evidence therefore also fails.

DiLosa's complaint also alleges a section 1983 malicious prosecution claim against Boling and Warren and a section 1983 defamation claim against Boling, Warren, and Sheriff Lee. As noted above, DiLosa conceded that a section 1983 malicious prosecution claim is no longer recognized. See supra, at n. 1. DiLosa also conceded in his opposition to Dodt's motion for summary judgment that there is not sufficient evidence to support a defamation claim under section 1983. DiLosa has not pointed to any evidence that would support his section 1983 defamation claim against Boling, — Warren, and Lee. For that reason, Boling, Warren, and Lee are also entitled to summary judgment on DiLosa's section 1983 malicious prosecution and defamation claims against them.⁹

9 To the extent that DiLosa challenges the veracity of trial testimony given by Boling and Warren, they are absolutely immune from a section 1983 suit for testimony they gave in a criminal trial. Mowbray, 274 F.3d at 277.

2. State Law Claims

The Court finds that DiLosa has also failed to carry his summary judgment burden on his state law false arrest, defamation, intentional infliction of emotional distress, and malicious prosecution claims against Boling, Warren and Lee. Boling, Warren and Lee adopt the arguments made by Dodt and the City of Kenner in those defendants' motion for summary judgment on DiLosa's state law claims. Boling, Warren and Lee also argue that DiLosa has produced no evidence to support his state law claims. DiLosa points to no evidence in response that would raise a genuine issue of material fact on these claims. In addition, the state law claims against Boling, Warren and Lee are defective for the same reasons as DiLosa's state law claims against Dodt are. See supra at III.E. Specifically, the false arrest, defamation and intentional infliction of emotional distress claims are prescribed, and DiLosa cannot show that any defendant initiated a prosecution against him in the absence of probable cause, which is an essential element of a malicious prosecution claim.

Finally, DiLosa alleges that Warren and Boling conspired with Dodt to commit these violations. Once again, not only has DiLosa failed to submit any record evidence that would raise a genuine issue as to whether Warren or Boling conspired with each other or with Dodt, he has also testified that he has no such evidence. (Def. Dodt's Mot. Summ. J., Ex. 3, DiLosa Dep. at 21-22, 33). Further, this claim has prescribed. For these reasons, DiLosa's state law conspiracy claims against Warren and Boling fail as well.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendants' motions for summary judgment and dismisses all of plaintiffs' claims against Douglas Dodt, the City of Kenner, Nicholas Congemi, Harry Lee, Merril Boling, and Joseph Warren.