Case: 22-30687       Document: 68-1      Page: 1    Date Filed: 04/11/2024




        United States Court of Appeals
             for the Fifth Circuit                               United States Court of Appeals
                                                                          Fifth Circuit

                             ____________                               FILED
                                                                    April 11, 2024
                              No. 22-30687
                                                                   Lyle W. Cayce
                             ____________                               Clerk

Renee Pipkins; Everitt Pipkins; Theron Jackson;
LaWhitney Johnson; Adriana Thomas; Reginald Autrey;
Darryl Carter; Theresa Hawthorne; Diane Johnson,

                                                      Plaintiffs—Appellants,

                                   versus

James E. Stewart, Sr., in his official capacity,

                                         Defendant—Appellee.
               ______________________________

               Appeal from the United States District Court
                  for the Western District of Louisiana
                        USDC No. 5:15-CV-2722
               ______________________________

Before Clement, Haynes, and Oldham, Circuit Judges.
Per Curiam:
       Plaintiffs Darryl Carter, Diane Johnson, and Theresa Hawthorne
reported for jury duty in Caddo Parish, Louisiana, and were struck during
voir dire. Plaintiffs claim their strikes violated the Fourteenth Amendment’s
Equal Protection Clause. The district court rejected that claim at summary
judgment. We affirm.
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                                 No. 22-30687


                                      I.
       Carter, Johnson, and Hawthorne are Black citizens of Caddo Parish,
Louisiana. All three served as venirepersons in 2015. Caddo Parish
prosecutors peremptorily struck all three.
       In April 2015, Carter reported for jury duty in a case styled State v.
Odums. Carter alleges he “was the only juror on his panel asked if he knew
Odums, the Black defendant in the case.” Blue Br. 6. Carter further alleges
he did not know Odums and that the prosecutor struck him anyway.
According to the record, however, the prosecutor asked numerous jurors
whether they knew the defendant. And according to the prosecutor’s notes,
Carter expressed bias against evidence from Shreveport.
       Johnson also reported for jury duty in State v. Odums. Johnson alleges
she gave the same answers as a white venireperson—both had been the
victim of car theft—but the prosecutor only struck Johnson. Again, however,
the record is more complicated. Johnson’s jury questionnaire revealed that
she “or [a] close family member” had been convicted of a felony, ROA.2018,
and the prosecutor’s notes indicated Johnson showed bias against the police
department. The defense counsel in State v. Odums filed a motion for a Batson
challenge, but the state court denied the motion.
       In June 2015, Hawthorne reported for jury duty in State v. Carter. The
prosecution did not ask Hawthorne any direct questions before striking her.
But Hawthorne, in colloquies with defense counsel, indicated she had
preconceived notions about firearm possession, and believed the defendant
was in court “for a reason.” ROA.5995.
       Plaintiffs joined an ongoing litigation challenging the Caddo District
Attorney’s alleged custom of peremptorily striking Black venirepersons on
the basis of race. Plaintiffs sued District Attorney James E. Stewart, in his
official capacity, under 

.




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                                  No. 22-30687


       The district court dismissed all Plaintiffs except Carter, Johnson, and
Hawthorne. The District Attorney then moved for summary judgment. The
district court granted the motion. Plaintiffs timely appealed. Our review is de
novo. Morrow v. Meachum, 

 (5th Cir. 2019).
                                       II.
                                       A.
       An official-capacity suit against a local officer, like the Caddo Parish
District Attorney, is a suit against the local government itself. See Monell v.
Dep’t of Soc. Servs., 

 (1978). Under Monell, local government
entities can be held liable for (1) constitutional violations (2) for which the
“moving force” was (3) an official policy or “governmental custom.” 

 at
690–91, 694 (quotation omitted). It is well settled that “without a predicate
constitutional violation, there can be no Monell liability.” Loftin v. City of
Prentiss, 

 (5th Cir. 2022) (citing Garza v. Escobar, 

 (5th Cir. 2020)); see also, e.g., Hicks-Fields v. Harris Cnty., 

 (5th Cir. 2017).
       The relevant predicate constitutional claim sounds in the Equal
Protection Clause. While “[a]n individual juror does not have a right to sit
on any particular petit jury, . . . he or she does possess the right not to be
excluded from one on account of race.” Powers v. Ohio, 

(1991). To establish an Equal Protection violation based on a discriminatory
peremptory strike, a plaintiff must show “a prosecutor . . . us[ed] the State’s
peremptory challenges to exclude otherwise qualified and unbiased persons
from the petit jury solely by reason of their race.” 

 Prosecutors may then
respond by offering a race-neutral explanation for the peremptory strike. See
Batson v. Kentucky, 

 (1986) (“Once the defendant makes a
prima facie showing, the burden shifts to the State to come forward with a
neutral explanation for challenging black jurors. . . . [T]he prosecutor’s




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                                 No. 22-30687


explanation need not rise to the level justifying exercise of a challenge for
cause.” (citations omitted)). We review that explanation “in light of all of the
relevant facts and circumstances” to determine whether the race-neutral
explanation was pretextual, asking whether the prosecutor’s actions were
instead “motivated in substantial part by discriminatory intent.” See Flowers
v. Mississippi, 

, 302–03 (2019) (citation omitted); see also Foster
v. Chatman, 

, 499–500 (2016) (discussing the Batson
framework).
                                      B.
       In this case, Plaintiffs cannot establish a predicate constitutional
violation. That is because they cannot show the Caddo Parish prosecutors
dismissed them “solely by reason of their race.” Powers, 

.
Without a viable Powers claim, their Monell claim fails too.
       Caddo Parish prosecutors offered race-neutral explanations for each
Plaintiff’s dismissal. For Carter, the prosecutor noted that he expressed bias
against evidence from Shreveport. For Johnson, the prosecutor highlighted
that Johnson or her family member had been convicted of a felony and she
might be biased against the police department. And for Hawthorne, the
prosecutor found Hawthorne’s colloquies with defense counsel problematic
because those colloquies revealed bias against the defendant. These facts
sufficiently explain each juror’s dismissal without reference to race.

       Moreover, we are not convinced any of these reasons was mere
pretext for a race-based dismissal. In considering whether an explanation was
pretextual, we may consider (1) “statistical evidence . . . in the case,”
(2) evidence of “disparate questioning,” (3) “side-by-side comparisons” of
dismissed Black jurors and accepted white jurors, (4) “a prosecutor’s
misrepresentations of the record,” (5) “relevant history of the State’s
peremptory strikes in past cases,” or (6) “other relevant circumstances.” See




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Flowers, 588 U.S. at 301–02. Here, Plaintiffs rely in part on (2) disparate
questioning and (3) side-by-side comparisons. But, as noted above, only
Carter contends that he was subjected to targeted questioning, and the
prosecutor clarified that he asked the same questions to each venire panel.
And a side-by-side comparison of Johnson’s questionnaire with those of the
white jurors accepted by both sides shows that none had a felony history like
hers or her family’s. Compare ROA.2012–25 (juror questionnaires) with
ROA.2301–03 (notes indicating which jurors were struck or accepted in
Odums).
       Plaintiffs therefore primarily rely on factors (1) and (5) to rebut the
DA’s race-neutral reasons. But neither can overcome the race-neutral
reasons for Plaintiffs’ dismissals. As to statistical evidence, Flowers held that
prosecutors can create an inference of racial discrimination where, in five out
of six trials, prosecutors repeatedly used all or almost all their peremptory
strikes to excuse (1) all Black venirepersons, (2) all Black venirepersons, (3)
15 of 16 eligible Black venirepersons, (4) 11 of 16 Black venirepersons,
evidently running out of peremptory strikes, and (5) 5 of 6 Black
venirepersons. Flowers, 588 U.S. at 289–92, 305. But this case is far, far afield.
Here, the Caddo Parish prosecutors in both Odums and Carter had
peremptory strikes left over, yet numerous Black jurors served on both juries.
See La. Code Crim Proc. art. 799. Thus, Flowers provides no support to
Plaintiffs’ case.
       Plaintiffs’ proffered statistical study fares no better. The study
critically omits any controls for individualized reasons a juror might be
excused. It therefore shows only general numbers, with no nuance to tell us
whether the struck jurors shared characteristics other than race with
Plaintiffs—characteristics (like bias) that might provide a race-neutral basis
for a peremptory strike. Without greater context, numbers alone cannot
prove discriminatory motive. Cf. Milliken v. Bradley, 

, 280 n.14



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(1977) (“[T]he Constitution is not violated by racial imbalance . . . without
more.”). At a minimum, Plaintiffs’ evidence cannot show that despite the
prosecution’s race-neutral explanations, the strikes were nonetheless
“motivated in substantial part by discriminatory intent.” Flowers, 

 (quotation omitted).
       Without an underlying Equal Protection claim, Plaintiffs’ Monell
claim must fail. AFFIRMED.




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