IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60258
Summary Calendar
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WILLIAM KENNETH McLAIN,
Plaintiff-Appellee,
versus
CITY OF JACKSON, MISSISSIPPI,
A Municipal Corporation, ET AL.,
Defendants,
and
R. D. JORDAN and AL LEDOUX,
Defendants-Appellants.
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Appeal from the United States District Court for
the Southern District of Mississippi
(3:94-CV-557-BrN)
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October 1, 1996
Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
William McLain was arrested and detained for almost five
months after Channon Patterson identified him from a photograph
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
lineup as the man who kidnaped and sexually assaulted her. After
the state dropped the case, McLain sued the City of Jackson,
Mississippi, R.D. Jordan and Al Ledoux, alleging causes of action
under 42 U.S.C. § 1983 and state law. Jordan and Ledoux are
police officers who were involved in McLain’s arrest and
interrogation.
Defendants filed a motion to dismiss or in the alternative
for summary judgment, seeking dismissal of the § 1983 claims.
Jordan and Ledoux claimed qualified immunity. The court treated
the motion as one for summary judgment and denied it, concluding
that a material issue of fact had been raised on the immunity
defense. The court reserved ruling on the state law claims.
Jordan and Ledoux bring this interlocutory appeal of the order
insofar as it denied summary judgment based on the qualified
immunity defense.
The denial of a motion for summary judgment ordinarily is
not appealable. An exception allowing for interlocutory appeal
exists where the motion is based on qualified immunity and the
review “turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985).
The district court, in its memorandum opinion and order,
correctly applied the law of qualified immunity in this context.
The complaint alleges that the defendants wrongfully and
maliciously arrested, detained and assisted in the prosecution of
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McLain. Qualified immunity does not shield an arresting officer
from liability for objectively unreasonable conduct which results
in an arrest without probable cause. Malley v. Briggs, 475 U.S.
335, 345 (1986); Sanders v. English, 950 F.2d 1152, 1160 (1992).
Likewise, the officer’s failure to disclose patently exculpatory
evidence, which results in the continued detention or prosecution
of the arrestee, can also give rise to § 1983 liability. Id. at
1162-63.
The district court ruled that disputed issues of fact were
presented which precluded summary judgment based on qualified
immunity. The court considered evidence in the pretrial record
that while Patterson reported that her assailant had a mustache
and below shoulder length hair, McLain was clean shaven and had
short hair. He offered the officers the names of an alibi
witness, whom he claimed was with him at the time of the assault
on Patterson, and his haircutters and business associates who
would verify that he never had shoulder length hair and a
mustache. He claimed that the police never contacted these
witnesses, and rejected his offers to submit to a lie detector
test, truth serum test, hypnosis, and physical lineup. In moving
to drop the charges, an assistant district attorney verified that
McLain was the only person in the photograph lineup who did not
have a mustache and long hair.
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McLain also claimed in his affidavit that Ledoux harbored an
intense dislike for him, and manifested this feeling during
several incidents preceding McLain’s arrest, including the making
of false reckless driving charges. McLain claimed that this
animosity stemmed from an incident in which McLain accompanied
Ledoux on a drug raid, and cash seized by Ledoux was not
deposited in the evidence depository. This evidence not only
raises an issue as to Ledoux’s animosity toward McLain, but also
as to Ledoux’s knowledge of McLain’s physical attributes.
Although Patterson testified in her deposition in this civil
case that McLain was in fact the assailant, she also precipitated
the dismissal of the criminal charges by expressing doubts that
she could identify McLain in court, and a desire that the charges
be dropped. There was also some evidence in the record
indicating that Patterson told the police her assailant had blue
eyes, that McLain has brown eyes, and that the offense report box
for “eyes” was left blank.
While appellants point out that an independent grand jury
returned an indictment against McLain for the kidnaping and
assault of Patterson, it is unclear from this record that the
grand jury relied on any information that was not provided by the
police. Further, we held in Sanders that a police officer cannot
escape § 1983 liability merely because he could not unilaterally
terminate the prosecution, in cases where a jury could find that
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the officer could have influenced the prosecuting attorney into
dropping the charges. 950 F.2d at 1162.
Given this evidence the court concluded, and we agree, that
material issues of fact had been raised on the application of the
qualified immunity defense. Because the “order in question
resolved a fact-related dispute about the pretrial record, namely
whether or not the evidence in the pretrial record was sufficient
to show a genuine issue of fact for trial,” this court has no
jurisdiction to review it via an interlocutory appeal. Johnson
v. Jones, 115 S. Ct. 2151, 2153 (1995).
DISMISSED.
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