UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-41220
Summary Calendar
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JOHN HARVEY MILLER; DEBBIE TUCKER LOVELESS,
Plaintiffs-Appellees,
VERSUS
RAINS COUNTY, TEXAS; ET AL,
Defendants,
ALWIN S. SMITH; RICHARD WILSON; FRANK LONG,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:95-CV-982)
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July 19, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:1
I. Factual and Procedural Background
This case involves an alleged malicious prosecution in violation of the United States
Constitution, brought pursuant to 42 U.S.C. § 1983. The defendants-appellants, Alwin S. Smith
(“Smith”), Frank Long (“Long”) and Richard Wilson (“Wilson”) ( collectively “appellants”),
appeal the district court’s denial of their summary judgment motions.
A jury convicted John Harvey Miller (“Miller”) and Debbie Tucker Loveless (“Loveless”)
(collectively “appellees”) for the murder of Loveless’ daughter, April Tucker (“April”). On state
habeas, the Court of Criminal Appeals vacated Miller’s and Loveless’ conviction on the grounds
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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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of ineffective assistance of counsel. Miller and Loveless then brought a section 1983 action
against Smith and Long, the prosecuting attorneys, and Wilson, the sheriff, involved in their
murder convictions. Smith, Long and Wilson asserted that they were entitled to absolute and/or
qualified immunity and filed motions for summary judgment. The district court denied their
motions for summary judgment after finding that genuine issues of material fact existed in regard
to their immunity claims. The district court, however, failed to specifically mention in its order
what material facts were in dispute. Following an interlocutory appeal, this Court remanded the
case to the district court and ordered that it clarify what factual disputes existed regarding the
denial of appellants’ motions for summary judgment. Subsequently, the district court issued its
order setting forth the following as genuine issues of material fact regarding the issues of absolute
and qualified immunity:
(1) whether Smith and Long actively participated in a search of the appellees’ property
and residence for “evidence” on January 5, 1989;
(2) whether Smith and Long actively participated in a search of the appellees’ property
and residence for evidence on January 7, 1989;
(3) whether, prior to and during the criminal trial of the appellees, the appellants
deliberately concealed exculpatory evidence that conclusively established that April had been
attacked and killed by a family dog;
(4) whether prior to and during the criminal trial of the appellees, the appellants
deliberately concealed exculpatory evidence that the family dogs had viciously attacked a social
worker on several occasions; and
(5) whether prior to indictment and trial, the appellants fabricated or manufactured
evidence to present to a grand jury when previous searches failed to reveal any evidence of the
appellees’ involvement in April’s death.
Now, with the district court’s order specifying the genuine issues of material fact that
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were utilized in denying the appellants’ motions for summary judgment, this Court renders its
decision.
II. Standard of Review
This Circuit reviews a district court's grant of summary judgment de novo, applying the
same standard of review as would the district court. See Shanks v. AlliedSignal, Inc., 169 F.3d
988, 992 (5th Cir. 1999); see Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961
(5th Cir. 1999). Summary judgment evidence is viewed in the light most favorable to the party
opposing the motion. Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456-58
(1992). Summary judgment is proper only when it appears that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c);
see Merritt-Campbell, Inc.,164 F.3d at 961. Disputes concerning material facts are genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Douglas v. United Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An
issue is material if it involves a fact that might affect the outcome of the suit under the governing
law. Id. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
III. Discussion
The appellants assert that the factual disputes found by the district court regarding
absolute and qualified immunity are not material. In addition, they argue that there is no
competent summary judgment evidence in the record to support the genuine issues of fact found
by the district court. We find that the appellants’ arguments are not valid.
After reviewing the record, we conclude that it sufficiently supports the genuine issues of
fact found by the district court. Furthermore, we find that the district court was correct in
determining that there are material factual disputes that prevent the appellants from being awarded
summary judgment based upon their absolute and qualified immunity defenses.
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Normally, a criminal prosecutor is fully protected by absolute immunity when performing
the traditional functions of an advocate. Kalina v. Fletcher, 118 S.Ct. 502, 504 (1997)(citing
Imbler v. Pachtman, 424 U.S. 409, 410 (1976)). However, a prosecutor who engages in
investigatory functions normally conducted by the police cannot claim absolute immunity but
instead may only rely upon qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275
(1993). Accordingly, we hold that the district court was correct in finding that the factual
disputes of whether Smith and Long actively participated in a search of the appellees’ property
and residence for evidence, are material to the defense of absolute immunity.
The appellants also contend that the district court improperly denied their motions for
summary judgment in regard to their defense of qualified immunity. Section 1983 provides a
federal cause of action against any person who, acting under color of state law, deprives another
of his federal rights. 42 U.S.C. § 1983. In order to determine if the appellees have a valid section
1983 claim and whether the defense of qualified immunity can be utilized, the court must
determine whether the appellants’ “‘conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Buckley, 509 U.S. at
268 (1993)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, the appellants will
be entitled to qualified immunity for their actions only if they “acted in an objectively reasonable
manner in view of the existing law an the facts available to [them].” Lampkin v. City of
Nacogdoches, 7 F.3d 430, 434-35 (5th Cir. 1993). Normally, the question of qualified immunity
should be decided by the court without the assistance of the jury; however, where the underlying
facts essential in the determination of the immunity issue are controverted, a determination by the
trier of fact is necessary. Id. at 435.
It is evident that there are material facts in dispute regarding whether the appellants’
conduct violated the constitutional rights of the appellees. Specifically the facts in dispute are: (a)
whether prior to and during the criminal trial of the appellees, the appellants deliberately
concealed exculpatory evidence that conclusively established that April had been attacked and
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killed by a family dog; (b) whether prior to and during the criminal trial of the appellees, the
appellants deliberately concealed exculpatory evidence that the family dogs had viciously attacked
a social worker on several occasions; and (c) whether prior to indictment and trial, the appellants
fabricated or manufactured evidence to present to a grand jury when previous searches failed to
reveal any evidence of the appellees’ involvement in April’s death. Furthermore, because the
facts essential in the determination of the immunity issue are controverted, the district court
properly denied the appellants’ motions for summary judgment so that the jury could make the
essential factual findings. Accordingly, we hold that the district court was correct in denying of
the appellants’ motions for summary judgment based upon the defense of qualified immunity.
IV. Conclusion
For the aforementioned reasons, we AFFIRM the district court’s denial of the appellants’
motions for summary judgment and REMAND for trial on the merits.
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