IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-60540
Summary Calendar
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PAMELA KEITH,
Plaintiff-Appellee,
VERSUS
MAURY L. SCHUH,
In His Individual Capacity,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
(1:96-CV-39-D-D)
_________________________
August 17, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Maury Schuh appeals the partial denial of summary judgment on
Pamela Keith's First Amendment retaliation claim brought under
42 U.S.C. § 1983. Concluding that Schuh had probable cause to
arrest Keith and that, once under arrest, Keith was properly placed
in a detention cell, we reverse and render summary judgment in
favor of Schuh.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
A young-sounding woman claiming to be Gladys Welch called in
a prescription refill to a pharmacy. Knowing Welch to be an older
woman, the pharmacist was suspicious and began making phone calls.
There is a factual dispute as to whether Welch told the pharmacist
that she had asked her daughter and son-in-law to pick up the
prescription for her. It is undisputed, however, that the doctor's
office that had written the prescription informed the pharmacist
that there had been other problems with the prescription and that
he should consider the prescription canceled and should refuse to
fill it for anyone. It is also undisputed that the pharmacist then
called the police, telling them that both Welch and the prescribing
doctor had disclaimed any authority for anyone to pick up the
prescription.
Roy Moreno, Keith's husband, eventually arrived to pick up the
drugs, and Lee County Deputy Sheriff Maury Schuh confronted him.
After a conversation with Moreno, Schuh escorted him to Moreno's
car, where Keith and a small child were waiting. Schuh asked them
to follow him back to the sheriff's department, and they did so.
Schuh placed Moreno and Keith in separate rooms and questioned
them. According to Keith, Schuh questioned her for about five to
seven minutes. At one point, according to Keith, a heated exchange
took place:
I said, look, let me tell you something, I would not risk
going to jail over 12 half of a milligram nerve pills when
I've got 90 that's a lot stronger than the ones she's got.
He said, oh, you do? He said, well, I'll tell you what
I'll do, I'll call the Welfare on you right now and have
your kid took away from you.
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* * *
I said, you pick up that mother fucking phone and you call
'em. And I jumped out of that chair and I said, you don't
threaten me to call no Welfare on me because I ain't done
a damn thing. I said, I had permission to pick that
medicine up and if you don't believe me, that's tough. He
said, you're going in the cell. I said, put me in there.
Because I didn't care. I ain't scared of none of 'em down
there.
* * *
And he's lucky I didn't knock him through that wall,
because I didn't care if I sat in that jail for a little
while. . . . I mean, that's how mad he made me when he
threatened me with that Welfare.
After this alleged exchange, Schuh had another officer place
Keith in a detention cell, where she remained, by her estimation,
about ten or fifteen minutes, during which time she sat on a cot
and smoked cigarettes. After spending less than an hour at the
Sheriff's Department, Keith and Moreno were released.
A few weeks later, Schuh swore out a warrant for Keith's
arrest, charging her with felony conspiracy to obtain a controlled
substance and with uttering a forgery. These charges were later
dismissed.
II.
Keith alleged that she had been arrested and prosecuted
without probable cause, in violation of the Fourth Amendment, and
that her brief incarceration had been in retaliation for her
exercise of protected speech, in violation of the First Amendment.
Schuh moved for summary judgment on the basis of qualified
immunity. The district court granted summary judgment on the
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Fourth Amendment claims, which action Keith does not appeal, but
denied it on the First Amendment claim.
III.
Where summary judgment is denied in a civil rights action on
the basis of an officer's immunity from suit, the collateral order
doctrine permits an interlocutory appeal. Mitchell v. Forsyth,
472 U.S. 511 (1985); Hale v. Townley, 45 F.3d 914, 918 (5th Cir.
1995). Our review of such appeals is limited by the extent to
which the district court's action was based on issues of law,
rather than of disputed fact. See Johnson v. Jones, 515 U.S. 304,
313-18 (1995).
The existence of some disputed issues of material fact does
not necessarily preclude our review, however. Rather, we may
decide, as a matter of law, whether those historical facts deemed
adequately supported by the record meet the applicable standard of
qualified immunity. See Behrens v. Pelletier, 516 U.S. 299 (1996);
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
Where a district court has not identified what facts it deems
adequately supported, “a court of appeals may have to undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the moving party,
likely assumed.” Behrens, 516 U.S. at 313 (quoting Johnson,
515 U.S. at 319).
Here, there is no doubt that many of the facts relating to the
availability of qualified immunity are in dispute. This alone,
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however, cannot enable Keith to survive summary judgment, for the
Behrens Court held that the denial of qualified immunity is not
immune from interlocutory appeal simply because it “rested on the
ground that material issues of fact remain.” 516 U. S. at 312
(internal punctuation omitted). For an appeal to be foreclosed,
the facts in dispute must be necessary toSS”not truly 'separable'”
fromSSthe availability of qualified immunity. Id.
We may take the undisputed facts and assume the resolution of
disputed facts in Keith's favor, and apply the resulting factual
scenario to the correct legal standard. See id.; Baker v. Putnal,
75 F.3d 190, 197 (5th cir. 1996); Nerren v. Livingston Police
Dep't, 86 F.3d 469, 472 (5th Cir. 1996); Cantu v. Rocha, 77 F.3d
795, 802 (5th Cir. 1996). If we find, on the basis of these facts,
that Schuh is entitled to qualified immunity, any resolution of the
disputed facts becomes immaterial. Having jurisdiction over the
appeal, then, we review the partial denial of summary judgment
de novo. See Coleman, 953 F.3d at 533.
IV.
Qualified immunity shields government officials performing
discretionary functions from personal liability for damages
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity is a defense not only to liability but
also from suit altogether. Mitchell v. Forsyth, 472 U.S. 511, 526
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(1985).
To determine whether qualified immunity is available to a law
enforcement officer, a court must inquire into the “objective legal
reasonableness” of his actions. Behrens, 516 U.S. at 306. We must
determine whether the plaintiff has alleged a violation of a
constitutional right clearly established at the time of the
unfortunate event, Mangieri v. Clifton, 29 F.3d 1012 (5th Cir.
1994), for if no right was violated, the lawsuit must end. If a
constitutional right has been violated, we must assess the
objective reasonableness of the officer's actions. Id.
Qualified immunity protects government officials “as long as
their actions could reasonably have been thought consistent with
the rights they are alleged to have violated,” Pfannstiel v. City
of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)), and thus it protects “all but
the plainly incompetent or those who knowingly violate the law,”
Malley v. Briggs, 475 U.S. 335, 341 (1986). If reasonable officers
could differ on the lawfulness of a defendant's actions, he is
entitled to immunity from suit. Pfannstiel, 918 F.2d at 1183; see
also Malley, 475 U.S. at 341.
V.
Schuh contends that Keith's “I ain't done a damn thing”
diatribe was not speech protected by the First Amendment. We need
not reach this issue, for Schuh's treatment of Keith was entirely
within the scope of his authority, and Keith has presented no
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evidence that Schuh retaliated in any way.
No one disputes that Schuh's placement of Keith in a detention
cell would have been entirely appropriate, but for the alleged
retaliatory motive. Schuh detained Keith without a warrant, to be
sure, but this brief detention was supported by probable cause,
namely her participation in an apparent scheme to obtain controlled
substances.*
Keith rests her entire case on the theory, apparently derived
from Mt. Healthy Board of Educ. v. Doyle, 429 U.S. 274 (1977), that
Schuh's alleged retaliatory animus renders his otherwise proper act
unconstitutional. Again, we may avoid addressing the merits of
this theory, for even under Keith's proposed inquiry into Schuh's
subjective intent, Keith has presented no competent summary
judgement evidence as to Schuh's alleged retaliatory animus.
Keith bears the burden of setting forth specific facts showing
that there is a genuine issue for trial. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). She has failed to do so. Aside from her bald and
conclusional allegations of retaliations, there is no indication in
the summary judgement record that Schuh intended to retaliate. On
the contrary, the only evidence we have of Schuh's subjective
intent is his deposition testimony that he placed Keith in a
detention cell because he believed she might pose a security threat
*
Cf., e.g., City of Riverside v. McLaughlin, 500 U.S. 44, 52-57 (1991)
(warrantless detention for 48 hours); Brinegar v. United States, 338 U.S. 160,
175-78 (1949) (probable cause determination); Ornelas v. United States, 516 U.S.
690, 695-97 (1996).
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if left unsecured and unsupervised. Keith has given us no reason
to doubt that testimony, so there is no disputed issue of material
fact.
Therefore, we must conclude thatSSat the very leastSSreasonable
officers could disagree as to the reasonableness of Schuh's actions
in confining Keith to the detention cell. Because Schuh's
allegedly violative acts were objectively reasonable, he is
shielded from personal liability for those acts under the doctrine
of qualified immunity. See Pfannstiel, 918 F.2d at 1183.
The partial denial of summary judgment is REVERSED, and
judgment is RENDERED for Schuh.
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