Marie REED, Plaintiff-Appellant, v. Mike EDWARDS, Officer of the Baton Rouge Police Department; Charles Mondrick, Interim Chief of the Baton Rouge Police Department; Heath Sоileau, Officer of the Probation and Parole Officer of East Baton Rouge Parish; James M. Leblanc, Secretary of the Louisiana Department of Corrections; Brian Blache, Detective of East Baton Rouge Parish Sheriff‘s Office; Sid Gautreaux, East Baton Rouge Parish Sheriff; Chasity Sanford, Deputy of the East Baton Rouge Parish Sheriff‘s Office, Defendants-Appellees.
No. 12-30196
United States Court of Appeals, Fifth Circuit.
Aug. 27, 2012.
487 Fed. Appx. 904
Summary Calendar.
Because there was no genuine dispute as to any material fact and DART was entitled to judgment as a matter of law, thе district court‘s determination that Adeleke‘s appeal was not taken in good faith was correct. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983).
Because Adeleke has failed to show that hе has a nonfrivolous issue for appeal, we uphold the district court‘s order certifying that the appeal is not taken in good faith. Adeleke‘s request to prоceed IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2.
Robert Lawrence Sirianni, Jr., Esq., Brownstone, P.A., Winter Park, FL, Jarrett P. Ambeau, Gonzales, LA, Paul H. Scott, Baton Rouge, LA, for Plaintiff-Appellant.
James Leslie Hilburn, Esq., Parish Attorney‘s Office, Edmond Wade Shows, Lindsay Leigh Lollar, Shows, Cali, Berthelot & Walsh, L.L.P., Catherine Susan St Pierre, Crawford Lewis, P.L.L.C, Baton Rougе, LA, for Defendants-Appellees.
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Marie Reed asserted false-arrest and false-imprisonment claims under
II.
Reed contends that her Fourth Amendment claim for unlawful seizure was not time-barred, because although the limitations period is governed by state law, Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 814 n. 7 (5th Cir.2010), the accrual date is governed by federаl law, which dictates that a
Our caselaw indirectly addresses this issue and suggests that a bond hearing constitutes legal process under Wallace. In Terry v. Hubert, 609 F.3d 757, 763 (5th Cir.2010), we held that a warden who was sued under
Instead, Reed points to Mondragon v. Thompson, 519 F.3d 1078 (10th Cir.2008), to suggest that а bond hearing does not constitute legal process. The plaintiff in that case alleged that he appeared at “some sort of hearing” but contended that it did not constitute legal process, because the record did not indicate what kind of hearing it was. Id. at 1081. Because the arrest warrant was forged and there wаs no information regarding what kind of hearing the plaintiff received, the court expressed doubt that the plaintiff had received legal process within the meaning оf Wallace, so it remanded for the district court to make the determination. Id. at 1083-84. The court noted, however, that the Wallace requirement would have been satisfied if the arrest warrant had not been forged or if there were more information surrounding the plaintiff‘s hearing. Id.
Reed appeared at a bond hearing and posted bond no later than August 2009. Because she appeared before a judge, acknowledged the claims against her, and posted bail, we can ascertain the kind of hearing she received. We conclude that a bоnd hearing satisfies the definition of legal process within the meaning of Wallace, so we need not remand to allow Reed to amend.
Even if the bond hearing did not meet the legal-process requirement of Wallace, Reed attended several later revocation hearings that constituted legal process. The first, in which Reed was represented by counsel, was held in September 2009, so Reed‘s claims expired, at the latest, in September 2010. Because she did not sue until January 2011, her Fourth Amendment claims are time-barred, even using the later accrual date.1
III.
Reed alternatively argues that, even if her Fourth Amendment claim is time-barred, she can state a viable claim under the Due Process Clause if permitted to amend. Although
Reed also claims that, even though she failed to raise a due-proсess claim in her initial pleading or to move to amend, justice requires that this court permit her to raise a due-process claim. As a general rule, “[a] party cannot raise a new theory on appeal that was not presented to the court below,” Capps v. Humble Oil & Refining Co., 536 F.2d 80, 82 (5th Cir.1976), but Reed contends that these are “exceptional circumstances” that allow an appellate court to hear an issue for the first time on appeal if “no further factual development is required and a miscarriage of justice would otherwise result,” Payne v. McLemore‘s Wholesale & Retail Stores, 654 F.2d 1130, 1144-45 (5th Cir. Unit A Sept.1981).
There is no miscarriage of justice. First, it is not certain that Reed would have succeeded on this theory if she had raised it in district court. See id. at 1146 (declining to consider a new theory on appeal, because it was not certain that the appellant would have prevаiled on that theory in the lower court). Second, the due-process claim that Reed wishes to raise is not a pure question of law but instead would require further factual findings regarding Reed‘s arrest and imprisonment to determine whether they in fact violated due process. Reed has presented only conclusional allegations that her arrest was concocted through a conspiracy, so no miscarriage of justice would result from following our general rule and refusing to hear hеr new claim.
AFFIRMED.