Burge v. Parish of St. Tammany

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-30241

GERALD BURGE,

Plaintiff-Appellee-Appellant,

v.

ST. TAMMANY, PARISH OF, ET AL.;

Defendants,

ST. TAMMANY PARISH DISTRICT ATTORNEY’S OFFICE; WALTER REED,

Defendants-Appellees,

and

PATRICK J. CANULETTE, Sheriff, in his official capacity as
Sheriff of the Parish of St. Tammany; GARY HALE,

Defendants-Appellants.
__________________________

GERALD BURGE,

Plaintiff-Appellee,

v.

PATRICK CANULETTE, in his official capacity as Sheriff
of the Parish of St. Tammany, et al.,
Defendants,

PATRICK CANULETTE, in his official capacity as
Sheriff of St. Tammany,

Defendant-Appellant.
 Appeal from the United States District Court
for the Eastern District of Louisiana
August 25, 1999
Before DAVIS, JONES, and DENNIS, Circuit Judges.*
DENNIS, Circuit Judge:

Plaintiff Gerald Burge (“Burge”) was imprisoned for nearly

five years for a crime of which he was later exonerated. In 1986,

a sheriff’s deputy allegedly facilitated Burge’s conviction of the

second degree murder of Douglas Frierson (“Frierson”) in St.

Tammany Parish, Louisiana, by suppressing a pretrial statement by
the victim’s mother that would have impeached her perjured

testimony that she saw Frierson leave her house with Burge shortly

before the homicide. After that statement and other suppressed

exculpatory evidence came to light, Burge was granted a new trial

and acquitted by a jury in 1992.

Burge brought civil actions for damages in the United States

District Court against the District Attorney and the Sheriff of St.

Tammany Parish, Louisiana, and a number of assistant district

attorneys and sheriff’s deputies, under 42 U.S.C. § 1983, the
Louisiana Constitution, and state tort law. The gravamen of these

actions is that the suppression of exculpatory evidence in

violation of Burge’s constitutional right to due process was caused

by: (1) the deliberately indifferent policies and customs of the

*
Judge Jones concurs in the opinion, except for the discussion in
part IV (A) (1)(b), (c) and (d), in which she concurs as to the
judgment only.

2
Sheriff and the District Attorney, in their official capacities,

regarding the supervision and training of employees in the handling

of exculpatory evidence; and (2) the intentional acts and omissions

of their individual deputies and assistants in the introduction of

false evidence and suppression of exculpatory evidence.

The present appeals arise from motions for summary filed by

the defendants in Burge’s civil action. The district court granted

them in part and denied them in part. Burge and several of the

defendants appealed from a number of the district court’s rulings

that were adverse to them.

I. FACTUAL BACKGROUND

At approximately 4:13 a.m. on October 17, 1980, the body of

Douglas Frierson was found under a bridge in St. Tammany Parish.

He had been shot to death in the abdomen, shoulder, and head with

a large caliber weapon. It appeared that he had been killed only

an hour or so before his corpse was found. When Glenda Frierson

(“Glenda”), the victim’s sister, was informed of her brother’s

death, she related the news by telephone to his friend, Gerald

Burge. Burge called the St. Tammany Parish Sheriff’s Office (the

“Sheriff’s Office”) at about 8:30 a.m., verified the report, and

told Chief of Detectives E.L. Hermann, Jr. (“Lt. Hermann”) that on

the night of the murder Frierson had visited his home and departed

at about midnight on foot. Lt. Hermann assigned Detective Gary

Hale (“Hale”), who had inspected the murder scene and the victim’s

body soon after its discovery, to investigate the murder.

3
 A. The Murder Investigation and
The Allegedly Withheld Exculpatory Evidence

On October 17, 1980, Hale took a recorded statement (later

transcribed) of Mrs. Jean Frierson (“Mrs. Frierson”), the victim’s

mother. Mrs. Frierson told Hale that her son ate pancakes at her

home in Picayune, Mississippi at about midnight on October 16, 1980

and that at approximately 12:50 a.m. on October 17, 1980 Frierson

was picked up by someone in a car. Mrs. Frierson said that she did

not see the vehicle or the person or persons with whom her son

left.

On October 17, 1980, Hale also took a recorded statement from

Frierson’s 12-year-old brother, Ricky Frierson (“Ricky”), who told

Hale that at approximately 12:50 a.m. on October 17, he saw Burge

and Joe Pearson (“Pearson”) drive up to Mrs. Frierson’s residence

in Burge’s red Cadillac with a white top. Although Ricky said that

he did not see his brother get in the car, he told Hale that he saw

Frierson sitting in the back seat of the vehicle as it drove away.

On October 18, 1980, Hale interviewed Pearson, who said that

he did not leave his home on October 16 or 17, and that his

girlfriend, Jo Ella Prestwood (“Prestwood”), could confirm his

whereabouts at the time of Frierson’s murder.

On October 21, 1980, Hale interviewed Burge, who said that on

the night of the murder he picked up Frierson at his mother’s home

in Burge’s red and white Cadillac and that he dropped off Frierson

at a convenience store between 11:30 p.m. and 12:30 a.m. This

4
second statement was partially inconsistent with Burge’s first

statement in which he said Frierson left his house at midnight on

foot. Burge also told Hale that although he had a Ruger Blackhawk

.44 magnum weapon, he had given Frierson the .44-caliber gun to

sell approximately one week before the murder. In October 1980, an

officer from the New Orleans Police Department, where the autopsy

was performed, told Hale that the bullets taken from Frierson’s

body probably were fired from a Ruger Blackhawk .44-caliber weapon.

On October 22, 1980 Hale interviewed Bernice Frierson

(“Bernice”), the victim’s brother, who stated that on October 13 he

saw Burge with a .44-caliber weapon, and that Burge told him that

he would kill anyone before he would go to jail. Bernice also said

that on this date Burge told him that he and Pearson had quarreled

over money that Pearson owed Frierson from a drug deal, and that

Burge later told him that he had picked up Frierson on the night of

the murder because Frierson wanted to make a phone call.

On October 24, 1980, based on an arrest warrant supported by

the sworn affidavit of Hale, Burge was arrested for the murder of

Frierson. Burge was released one week later when the District

Attorney’s Office decided not to prosecute for lack of sufficient

evidence.

At some time during the murder investigation, Hale also

prepared an undated final résumé. In this report, Hale disclosed

that when Burge called Lt. Hermann on the morning Frierson’s body

was found, Burge did not ask “where the victim was found or how the

5
victim was killed or what time the victim was discovered.” Hale

also referred to a second interview with Ricky Frierson on October

23, 1980. In this later interview, Ricky stated that Burge told

Ricky that he must have been “mistaken” when he told Hale that he

saw Burge and Pearson pick up Frierson on the night of the murder;

and that the third person in the car actually was an unnamed woman.

The résumé also reflects that Hale had obtained a written statement

from Sgt. B. Smith of the Picayune Police Department indicating

that at 12:45 a.m. on October 17, 1980, she saw Frierson at a

lounge in Picayune, Mississippi with Johnny Milstead, Paul Johnson,

and Bobby Frierson, the victim’s cousin. Hale’s résumé also refers

to taped statements from Milstead, Johnson, and Bobby Frierson

confirming that they had been drinking with Frierson that night.

However, according to the résumé, Bobby Frierson told Hale that

they took Frierson home at approximately 12:30 a.m.

Hale also prepared an undated handwritten “supplemental

report” stating that on April 21, 1981 Detective David Brooks of

the Mississippi Highway Patrol told Hale that Rhonda Spears

(“Spears”) told him that she heard Pearson admit that he had killed

Frierson. According to Hale’s report, Chief Ladner of the Hancock

County, Mississippi Sheriff’s Office was present during this

conversation. In this handwritten résumé, Hale also indicated that

he had interviewed a private investigator and a bail bondsman who

told him that they had spoken with Prestwood on April 16, 1981, and

that she told them that Pearson made “statements which caused her

6
to believe that Pearson and Burge had murdered Frierson.”

On April 21, 1981, Hale took a recorded statement from

Prestwood, who said that at midnight on the night of the murder,

Burge picked up Pearson in his red and white Cadillac and that

Pearson returned at approximately 4:00 a.m. Prestwood also told

Hale that Pearson told her to tell the police that he had been with

her on the night of the murder. She also disclosed that Pearson

told her that Frierson had been “ratting” on Burge and him and that

he (Pearson) had shot Frierson in the head.

In the summer of 1981, Hale resigned from the St. Tammany

Parish Sheriff’s Office and became chief investigator and jailer

for Pearl River County in Mississippi. Hale left the law

enforcement field in late 1983. In 1983, Hale married Glenda

Frierson, Frierson’s sister, whom he met and began dating during

his investigation of her brother’s murder.

On November 23, 1983, Detective Mike Moore of the St. Tammany

Parish Sheriff’s Office, who continued the investigation after

Hale’s resignation, obtained another recorded statement from

Prestwood in which she admitted that she lied when she originally

told Hale that Pearson had been with her on the night of Frierson’s

murder. Prestwood also said that Pearson told her a few days after

the murder that Frierson was a “rat” and that he told her “we got

his head blown off.”

B. Burge’s First Murder Trial

While Burge was serving a sentence in a Mississippi prison on

7
an unrelated conviction of receiving stolen property, Pearson

confessed to authorities that he and Burge picked up Frierson at

midnight on October 16 and drove him to a bridge on Highway 90,

where they argued over money and Burge shot Frierson several times.

Pearson also stated that Burge threw the gun off Interstate 10 into

Lake Pontchartrain.

In 1983, Burge and Pearson were indicted for the second degree

murder of Frierson. In April 1984, prior to District Attorney

Reed’s taking office in January 1985, Burge’s attorney filed a

Brady motion, requesting any and all exculpatory evidence.1 In

July 1984, Rick Swartz (“Swartz”) of the St. Tammany Parish

District Attorney’s Office (the “District Attorney’s Office”)

produced what he represented to be all of the exculpatory evidence

that the Sheriff’s Office had turned over to the District

Attorney’s Office. Later, in April 1994, Swartz gave an affidavit

stating that, prior to that Brady production, he “made inquiry into

the existence of said exculpatory evidence . . . [and] reviewed the

investigatory file provided by the St. Tammany Parish Sheriff’s

Office and inquired of the St. Tammany Parish Sheriff’s Office and

of the investigators assigned to the case as to the existence of

any exculpatory evidence.” In the affidavit, Swartz stated that

1
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S.
Supreme Court held that the “suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.”

8
the October 18 [sic], 1980 statement of Mrs. Frierson to Hale, in

which she said that she did not see with whom her son left on the

night he was murdered, and Jo Ella Prestwood’s April 20, 1981

statement to Hale, in which she said that Pearson admitted to her

that he had murdered Frierson, were not part of the investigatory

file made available to him by the St. Tammany Parish Sheriff’s

Office.

Burge’s defense attorney at his 1986 murder trial, Wendell

Tanner, testified at a 1990 hearing that he had never seen the

October 17, 1980 statement of Mrs. Frierson, the April 1981 and

November 1983 statements of Prestwood, or Hale’s handwritten résumé

of his investigation.

In December 1984, the District Attorney reduced the murder

charge against Pearson to being an accessory-after-the-fact to the

Frierson murder in exchange for Pearson’s testimony against Burge.

In January 1986, in preparation for Burge’s murder trial, the

District Attorney’s Office discovered that the copy of the

Sheriff’s investigatory file that had been made from the original

investigatory file and delivered to the previous District Attorney

in 1980 (“first copy of investigatory file”) was missing, and asked

the Sheriff’s Office for another copy. Captain Debra McCormick

(“McCormick”), the chief of records for the St. Tammany Parish

Sheriff’s Office, testified that because the Sheriff’s

investigatory file had not been microfilmed by the time of Burge’s

1986 trial, she would have made a copy of the file (“second copy of

9
the investigatory file”) from the Sheriff’s original. In April

1986, District Attorney Walter Reed assigned Paul Katz (“Katz”) as

Special Assistant District Attorney to prosecute Burge. In a

deposition, Katz testified that the second copy of the

investigatory file given to the District Attorney’s Office by the

Sheriff’s Office in 1986 did not contain Mrs. Frierson’s October

17, 1980 statement and that it included only two of Prestwood’s

statements. Katz also testified that he could not recall whether

the file contained the detectives’ résumés of their investigations.

At Burge’s first trial for second degree murder in September

1986, Pearson testified that he witnessed Burge fatally shoot

Frierson on October 17, 1980. Mrs. Frierson, contrary to her

original October 17, 1980 statement that was not disclosed or

produced for the defense, testified that she saw her son leave her

house with Burge and Pearson on the night of the murder. Mrs.

Frierson also testified that she told Hale that on the morning

Frierson’s body was found, after Burge called Lt. Hermann in their

presence, Burge told her and Glenda detailed information about

Frierson’s death, i.e., that Frierson’s body had been found shot

four times with a .44 caliber gun under the East Pearl River

bridge. Glenda Frierson Hale, the victim’s sister and Hale’s wife,

testified that Burge had threatened to kill her brother only a few

days before the murder, and corroborated Mrs. Frierson’s testimony

that on the morning after the murder, Burge provided Mrs. Frierson

and her with the details of the crime that only a perpetrator would

10
know.

The trial court inspected two statements by Prestwood, and

ruled that they were not exculpatory. Prestwood’s crucial April

1981 statement that Pearson confessed to being the trigger man was

not disclosed and thus was not one of the statements viewed in

camera by the court. A jury convicted Burge of the second degree

murder of Frierson. The court sentenced Burge to life imprisonment

at hard labor without parole.

In a February 1995 affidavit, Lt. Hermann stated that a tape

recording he had made of a conversation with Burge after the

murder, which Lt. Hermann had given to Hale, had disappeared.

According to Lt. Hermann, immediately after Burge’s conviction, as

he and Hale were leaving the courthouse, Lt. Hermann brought up the

subject of the missing tape. Lt. Hermann stated that Hale opened

the trunk of his car and showed him several “reports and

statements” pertaining to the Frierson murder investigation. When

Lt. Hermann asked Hale why the documents were in his trunk, Hale

allegedly told Lt. Hermann that “[s]ome of this stuff could

probably make us lose the case.” Lt. Hermann stated in his

affidavit that while he did not look at the documents, he was

certain that some of the statements were original transcripts

because he saw typewriter indentations in the paper.

According to Lt. Hermann, when he asked Hale how he had gotten

Glenda Frierson Hale and Mrs. Frierson to lie on the witness stand,

Hale told him, “Over a period of time there is a little

11
brainwashing, you tell them the story of what happened, and what

you need to win a case in court and they begin to believe it.” In

his 1995 affidavit, Lt. Hermann also stated that Hale said that he

told prosecutor Katz “about the problem with the case, you know

about Jean and Glenda testifying and Katz said he would take care

of it.”

Lt. Hermann testified that he persuaded Hale to turn over to

him the documents in Hale’s trunk, and that he allowed Burge’s

attorney to inspect, but not copy, these documents. After

reviewing these documents, Burge’s attorney filed a Petition For

Post-Conviction Relief in state court alleging that the State

unconstitutionally deprived the defense of the following

exculpatory evidence: (1) the October 17, 1980 statement of Mrs.

Frierson in which she said that she did not see who picked up

Frierson the night of the murder; (2) Hale’s handwritten

supplemental report referring to Detective Brooks’s statement that

Spears told him that Pearson told her that he had murdered

Frierson, and Prestwood’s statement that Pearson told her he had

shot Frierson in the head; (3) Hale’s final report referring to the

statement of Bernice Frierson that two days before the murder,

Pearson had given Frierson, the victim, two days to come up with

money that he owed Pearson.

When the court granted a hearing on Burge’s motion, the

District Attorney’s Office discovered that the second copy of the

investigatory file was missing, and again asked the Sheriff’s

12
Office for another copy. Burge’s attorney also had a subpoena

duces tecum issued to the Sheriff’s Office requesting production of

Prestwood’s April 20, 1981 statement, any statements by Pearson and

Glenda Frierson, and any reports or examinations relating to

Burge’s automobile. Captain McCormick of the Sheriff’s Office

testified that she could not recall whether she made copies of the

investigatory file for the District Attorney’s Office (”third copy

of the investigatory file”) and Burge’s attorney (”fourth copy of

the investigatory file”) from the Sheriff’s original or microfilm

files.

At a June 1990 evidentiary hearing on Burge’s Petition For

Post-Conviction Relief, Wendell Tanner, Burge’s original defense

attorney, testified that despite his request for Brady material in

1986, the District Attorney’s Office did not give him Hale’s

initial résumé of his investigation, Prestwood’s April 1981 or

November 1983 statements, Mrs. Frierson’s October 17, 1980

statement, or an evidence receipt showing that Hale had given

investigators an envelope containing paint scrapings from a pillar

of the bridge near where Frierson’s body was found. The trial

court granted Burge’s Motion for a New Trial based solely on its

finding that Mrs. Frierson’s October 17, 1980 statement was

exculpatory evidence that constituted Brady material that had been

withheld from the defense.

C. Burge’s Second Murder Trial and Acquittal

In September 1992, Burge was tried again for the second degree

13
murder of Douglas Frierson. At the second trial, Mrs. Frierson’s

testimony in the first trial that Burge had picked up her son that

night was impeached by the use of her original statement that she

had given to Hale on the day of the murder. Thereafter, she

admitted on the stand that she had lied when she testified under

oath at the 1986 murder trial that she saw her son leave with Burge

and Pearson on the night he was murdered. Mrs. Frierson also

admitted that she lied at the first trial when she testified that

she told Hale that Burge on the morning of Frierson’s murder had

described to her and Glenda the homicide evidence details after his

telephone conversation with Lt. Hermann, although she did not hear

him ask for those details. The defense used Prestwood’s statements

to impeach Pearson’s testimony that he saw Burge shoot Frierson.

The jury acquitted Burge of all charges.

II. PROCEDURAL HISTORY

In June 1991, Burge filed a civil suit against District

Attorney Walter Reed individually, Paul Katz, the St. Tammany

Parish District Attorney’s Office (collectively the “original DA

defendants”); Gary Hale, Sheriff Patrick Canulette individually,

and the St. Tammany Parish Sheriff’s Office (collectively the

“original Sheriff defendants”), for damages for deprivation of his

constitutional rights to due process and a fair trial under 42

U.S.C. § 1983 and related statutes by destroying, concealing, or

14
disposing of certain exculpatory evidence.2 Burge also alleged a

cause of action under § 1983 against the St. Tammany Parish

District Attorney’s Office and the St. Tammany Parish Sheriff’s

Office for deficient and substandard policies and practices that

allowed the loss of exculpatory evidence in violation of his

constitutional rights. Burge alleged no state law claims in the

original complaint.

In January 1992, the district court dismissed on the basis of

absolute prosecutorial immunity Burge’s claim that the original DA

defendants directed Hale to “store the investigation file in the

trunk of [his] car leading to the disappearance of the exculpatory

statements.” The district court did not address Burge’s claim that

deficient and substandard “policies and training” of the District

Attorney’s Office allowed the loss and/or destruction of

exculpatory statements which resulted in the deprivation of Burge’s

constitutional rights to due process and a fair trial.

The court also dismissed Burge’s claims against Hale

individually, and Canulette in his official capacity, on the

grounds that the claims had been extinguished by prescription. The

2
Burge claimed that the defendants failed to produce: (1)
statements by Bernice Frierson, Spears, and Pearson; (2) crime lab
reports of the tire tracks and red paint scrapings taken at the
murder scene that did not match Burge’s vehicle; and (3) the
detectives’ résumés containing information that Pearson had
admitted to Prestwood and Spears that he had murdered Frierson and
that Mrs. Frierson did not see with whom her son left on the night
of his murder.

15
court did not address Burge’s claims against Canulette in his

individual capacity. On July 8, 1992, the district court entered

a judgment in favor of defendants “Parish of St. Tammany, St.

Tammany Parish District Attorney’s Office, Walter Reed, Paul Katz,

Patrick J. Canulette, in his official capacity as Sheriff of St.

Tammany Parish, and Gary Hale,” dismissing Burge’s complaint with

prejudice. Burge’s appeal challenged only the dismissal of his

claims against Canulette in his official capacity and Hale

individually on the grounds of prescription. This court reversed

that judgment. See Burge v. Parish of St. Tammany, 996 F.2d 786

(5th Cir. 1993).

Burge returned to federal court and filed pleadings in the

same action re-urging his federal claims against the original DA

defendants, adding former St. Tammany Assistant District Attorney

Brady Fitzsimmons (“Fitzsimmons”) as a defendant, and adding state

law claims against all defendants based on malicious prosecution,

false imprisonment, infliction of emotional distress, violation of

the right to a fair trial under the Louisiana Constitution, and

spoliation of evidence.

In March 1994, the district court dismissed Burge’s federal

claims against the original DA defendants on the basis of res

judicata, and dismissed Burge’s claims against Fitzsimmons on the

basis of absolute prosecutorial immunity. The dismissal order

reserved to Burge the right to pursue his state law claims against

the original DA defendants and Fitzsimmons.

16
 In May 1995, the St. Tammany Parish District Attorney’s

Office, Reed, Fitzsimmons and Katz (the “DA defendants”) moved for

summary judgment solely on Burge’s pendent state law claims on the

grounds that: (1) the “St. Tammany Parish District Attorney’s

Office” was entitled to dismissal because it was not a legal entity

capable of suing and being sued; (2) the remaining DA defendants in

their individual capacities were entitled to absolute prosecutorial

immunity under state law; (3) the defendants were entitled to

discretionary function immunity under La. Rev. Stat. 9:2798.1; and

(4) Burge could not prove the essential elements of his state law

claims.

In August 1995, the St. Tammany Parish Sheriff’s Office,

Canulette in his official capacity; Hale, Deputy Freddie Drennan,

Deputy Michael Moore and Deputy Clark Thomas, in their individual

capacities, (the “Sheriff defendants”), also moved for summary

judgment, arguing that: (1) Burge could not meet his burden of

proof on the federal claims; (2) the Sheriff defendants were

entitled to absolute prosecutorial immunity because Burge accused

them of failing to perform functions traditionally reserved for

prosecutors; (3) alternatively, the Sheriff defendants were

entitled to qualified immunity because they did not violate any

clearly established constitutional guarantees; (4) the Sheriff

defendants were entitled to discretionary function immunity under

La. Rev. Stat. 9:2798.1; and (5) Burge could not prove the

essential elements of his state law claims against the Sheriff

17
defendants.3

On January 8, 1997, the district court entered its 48-page

Order and Reasons. After noting that Burge’s federal law claims

against the DA defendants already had been dismissed on the basis

of prosecutorial immunity, and thereafter on the basis of res

judicata, the district court granted the DA defendants’ motion for

summary judgment on Burge’s pendent state law claims on the grounds

of absolute prosecutorial immunity. The district court’s January

8, 1997 order amended the pleadings instanter, joining Reed in his

official capacity as a defendant and realleging all claims asserted

against the St. Tammany Parish District Attorney’s Office as

against Reed in his official capacity.

On March 5, 1997, pursuant to Federal Rule of Civil Procedure

54(b), the district court directed the entry of an amended final

judgment in favor of Reed, individually and in his official

capacity as the District Attorney for St. Tammany Parish, and in

favor of Fitzsimmons and Katz individually, dismissing all of

Burge’s actions against them.

The district court’s January 8, 1997 order denied the motions

for summary judgment on Burge’s state and federal claims filed by

3
In January 1996, after the defendants’ motions for summary
judgment were filed, Burge filed a separate diversity suit in
federal court against Canulette in his official capacity as Sheriff
of St. Tammany Parish, and against McCormick individually,
asserting a state law spoliation of evidence claim based on the
defendants’ alleged negligent or intentional loss or destruction of
the original investigatory file. In February 1996, this suit was
consolidated with Burge’s original federal suit.

18
Canulette in his official capacity, and Hale in his individual

capacity, and their insurers. The district court certified the

order for appeal under 28 U.S.C. § 1292(b).4 Canulette in his

official capacity, Hale in his individual capacity, and their

insurer petitioned this court for permission to appeal the ruling

as an interlocutory order. A panel of this court denied the

petition as to Canulette and the insurer, but ordered that Hale

could take an immediate appeal as of right from the district

court’s rejection of Hale’s claim of prosecutorial and qualified

immunity with respect to Burge’s federal law claims against Hale in

his individual capacity. Burge v. St. Tammany Parish Sheriff’s

Office, No. 97-00044 (5th Cir. Apr. 14, 1997).

Burge appealed from the March 5, 1994 and January 8, 1997

orders dismissing his federal and state law claims against the

District Attorney in his official capacity. Burge has stipulated

that he has no claims pending against Fitzsimmons, Katz and Reed in

their individual capacities. Burge also has conceded that the only

issues on appeal with respect to the District Attorney in his

official capacity relate to his federal and state law Monell-based

claims for deliberate indifference to his constitutional rights in

the training and supervision of personnel with respect to

exculpatory evidence.

4
The district court granted summary judgment for defendants
Thomas, Moore and Drennan, in their individual capacities,
upholding their claims of qualified immunity. Burge does not
appeal this ruling.

19
 III. STANDARD OF REVIEW

A district court’s decision to grant or deny summary judgment

is reviewed de novo, applying the same criteria employed by the

trial court in the first instance. Johnson v. Odom, 910 F.2d 1273,

1276-77 (5th Cir. 1990), cert. denied, 499 U.S. 936 (1991).

Summary judgment is proper when the pleadings, depositions,

admissions, and answers to interrogatories, together with

affidavits, demonstrate that no genuine issue exists as to any

material fact and that the movant is entitled to judgment or

partial judgment as a matter of law. FED. R. CIV. P. 56(C); Burns

v. Harris County Bail Bond Bd., 139 F.3d 513, 517-18 (5th Cir.

1998).

The party seeking summary judgment has the initial

responsibility of informing the court of the basis for its motion,

and identifying those parts of the record that it believes

demonstrate the absence of a genuine issue of material fact.

Johnston v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir.

1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). If

the moving party carries its initial burden, the burden then falls

upon the nonmoving party to demonstrate the existence of a genuine

issue of material fact. “This showing requires more than ‘some

metaphysical doubt as to the material facts.’” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

584-86 (1986)). While the party opposing the motion may use proof

filed by the movant to satisfy its burden, “‘only evidence -- not

20
argument, not facts in the complaint -- will satisfy’” the burden.

Id. (quoting Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160, 164

(5th Cir. 1991)).

This court must “`review the facts drawing all inferences most

favorable to the party opposing the motion.’” Evans v. City of

Marlin, Tex., 986 F.2d 104, 107 (5th Cir. 1993) (quoting Reid v.

State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)).

Where the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no genuine issue

for trial. Johnston, 14 F.3d at 1060 (citing Boeing Co. v.

Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc), overruled

in part on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331 (5th Cir. 1997) (en banc)).

IV. DISCUSSION

We will divide our discussion into two parts, viz., first, the

issues related to Burge’s claims against the District Attorney and

the Sheriff in their official capacities; and, second, the issues

related to Burge’s actions against the Deputy Hale in his

individual capacity. Burge’s actions against Reed and Canulette

pertinent to these appeals consist only of claims against these

officers in their official, rather than their individual,

capacities; whereas, Burge’s actions against Hale seek to hold him

liable in his individual, rather than his official, capacity.

Under each part of the discussion we will address separately the

issues raised by Burge’s claims under 42 U.S.C. § 1983, the state

21
constitution, and state tort law.

A. Issues Related to Burge’s Actions
Against the District Attorney and the Sheriff
in Their Official Capacities

1. Claims Against the District Attorney
In His Official Capacity

(a) Eleventh Amendment Immunity
Is Not Applicable To Claims Against
District Attorney in Official Capacity

Although the district court was not presented with, and did

not address, the issue of Eleventh Amendment immunity, we raised

this issue sua sponte at oral argument and the parties were

permitted to file supplemental legal authorities with respect to

the Eleventh Amendment implications of Burge’s claims against Reed

in his official capacity as District Attorney for St. Tammany

Parish.

“[T]he Eleventh Amendment defense sufficiently partakes of the

nature of a jurisdictional bar so that it need not be raised in the

trial court.” Edelman v. Jordan, 415 U.S. 651, 678 (1974). See

also McDonald v. Board of Miss. Levee Comm’rs, 832 F.2d 901, 906

(5th Cir. 1987) (“[E]leventh amendment immunity is a jurisdictional

issue that ‘cannot be ignored, for a meritorious claim to that

immunity deprives the court of subject matter jurisdiction of the

action.’”). Under Rule 12(h)(3) of the Federal Rules of Civil

Procedure, this court sua sponte may raise the issue of its subject

matter jurisdiction.

Therefore, we must inquire whether Burge’s federal Monell

22
claim5 and his pendent state law claims6 against Walter Reed in his

official capacity as District Attorney of St. Tammany Parish are

barred on the ground that Reed enjoys Eleventh Amendment immunity

because the District Attorney’s Office is an “arm of the state.”

See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989).

The question previously has been decided by a panel of this

court. The rule in this circuit is that a Louisiana district

attorney, sued in his or her official capacity, is a local

government official who is not entitled to Eleventh Amendment

immunity. Mairena v. Foti, 816 F.2d 1061, 1064 n.1 (5th Cir.

1987), cert. denied, 484 U.S. 1005 (1988); see also Hudson v. City

of New Orleans, No. 96-30964, 1999 WL 249147, at *3 (5th Cir. May

13, 1999) (clarifying why the Eleventh Amendment does not immunize

the Orleans Parish District Attorney’s Office). It is a firm rule

of this circuit that in the absence of an intervening contrary or

superseding decision by this court sitting en banc or by the United

States Supreme Court, a panel cannot overrule a prior panel’s

decision. See Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.),

cert. denied, 119 S. Ct. 413 (1998). We are bound by the decision

5
Monell claims are limited to those against local
governmental units that are not considered part of the State for
Eleventh Amendment purposes. See Monell, 436 U.S. at 691 n.54.
6
“[A] claim that state officials violated state law in
carrying out their official responsibilities is a claim against the
State that is protected by the Eleventh Amendment. . . . [T]his
principle applies as well to state law claims brought into federal
court under pendent jurisdiction.” Pennhurst State Sch. and Hosp.
v. Halderman, 465 U.S. 89, 121 (1984).

23
in Mairena because it has not been overruled.

Therefore, Burge’s federal and state law claims against Walter

Reed in his official capacity as District Attorney for St. Tammany

Parish are not barred by the Eleventh Amendment.

(b) The District Court Erred in Dismissing Burge’s
Official Capacity Suit Against the District Attorney
On the Dual Grounds of
Absolute Immunity and Res Judicata

The district court granted summary judgment dismissing Burge’s

action against the District Attorney in his official capacity based

on alleged violations of Burge’s federal constitutional rights on

dual grounds -- absolute prosecutorial immunity and res judicata.

We conclude that the District Attorney is not entitled to have

the official capacity suit dismissed for either of the grounds used

by the district court. Instead, the crucial issues appear to be

whether the District Attorney failed to establish adequate

policies, procedures or regulations to ensure adequate training and

supervision of employees with respect to the government’s Brady

responsibility; if so, whether the need to control the agents of

the government was so obvious, and the inadequacy of the existing

practice so likely to result in the violation of constitutional

rights, that the District Attorney can reasonably be said to have

been deliberately indifferent to the need; and, if so, whether the

District Attorney’s deliberate indifference and failure to

establish such policies, procedures, or regulations caused Burge’s

constitutional injury.

24
 Official capacity suits generally represent another way of

pleading an action against an entity of which an officer is an

agent. Monell, 436 U.S. at 691 n.55. Unlike government officials

sued in their individual capacities, municipal entities and local

governing bodies do not enjoy immunity from suit, either absolute

or qualified, under § 1983. Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993).

Consequently, the district court erred in granting summary judgment

for the District Attorney in his official capacity on the basis of

his absolute prosecutorial immunity because that form of personal

or individual immunity is not available in an official capacity

suit. See id.

Further, the District Attorney may not have Burge’s suit

against him in his official capacity dismissed on the grounds of

res judicata. The district court’s July 8, 1992 order, upon which

the prosecutor relies to invoke the doctrine, cannot be so applied

because it was not a final judgment. In that order, based on the

court’s two prior summary judgment orders, the district court

entered judgment in favor of the original DA defendants, Hale

individually, and Canulette in his official capacity, dismissing

Burge’s complaint with prejudice. However, the July 1992 summary

judgment order did not adjudicate Burge’s action against a co-

defendant, Canulette in his individual capacity. Moreover, the

January 1992 summary judgment order dismissed Burge’s claim in his

amended complaint that the original DA defendants directed Hale to

25
store exculpatory evidence in the trunk of his car. The court

failed to adjudicate Burge’s Monell claim against the Sheriff’s

Office set forth in Burge’s original complaint.

When, as here, the record clearly indicates that the district

court failed to adjudicate the rights and liabilities of all

parties, an order cannot be presumed to be final irrespective of

the district court’s intent. See Witherspoon v. White, 111 F.3d

399, 402 (5th Cir. 1997); Harris v. Rivera Cruz, 20 F.3d 507, 511-

12 (1st Cir. 1994) (“[W]e are reluctant to construe a judgment

ambiguous on its face as a final judgment where it could plausibly

be read as non-final, where extrinsic evidence does not wholly

resolve the uncertainty, and where reading it as final could

unfairly forfeit the rights of a party.”).

We recognize that a decision that fails to adjudicate all

rights and liabilities, while not technically final, can be

certified as final pursuant to Rule 54(b):

When more than one claim for relief is
presented in an action, . . . or when multiple
parties are involved, the court may direct the
entry of a final judgment as to one or more
but fewer than all of the claims or parties
only upon an express determination that there
is no just reason for delay and upon an
express direction for the entry of judgment.

FED. R. CIV. P. 54(b). Because the district court did not make such

a determination and direction designating the July 1992 order as a

final judgment, the judgment did “not terminate the action as to

any of the claims or parties,” but remained “subject to revision at

26
any time before the entry of judgment adjudicating all the claims

and the rights and liabilities of the parties.” See Lauderdale

County Sch. Dist. v. Enterprise Consol. Sch. Dist., 24 F.3d 671,

680 (5th Cir.), cert. denied, 513 U.S. 988 (1994).

Consequently, the district court’s July 8, 1992 order was not

an appealable final judgment. See Morrison v. City of Baton Rouge,

La., 614 F.2d 77, 78 (5th Cir. 1980). Although, in civil cases, a

ruling on a motion for partial summary judgment is the law of the

case on the issues decided, that ruling is not immutable and has no

res judicata effect. United States v. Horton, 622 F.2d 144, 148

(5th Cir. 1980) (citing Travelers Indem. Co. v. Erickson’s, Inc.,

396 F.2d 134 (5th Cir. 1968)); see also Copeland v. Merrill Lynch

& Co., 47 F.3d 1415, 1424 (5th Cir. 1995).

Moreover, the January 1992 district court order granting the

District Attorney’s motion for summary judgment based on absolute

immunity, unlike a denial of such a motion, is capable of being

fully and effectively reviewed after final judgment; therefore, the

Cohen collateral judgment doctrine7 is inapplicable. See Thompson

v. Betts, 754 F.2d 1243, 1244 (5th Cir. 1985). Hence, the district

court’s July 8, 1992 order was an interlocutory order, not a final

appealable judgment, and cannot be used to invoke the doctrine of

res judicata.

(c) Burge’s In Official Capacity Claim Does Not
Meet The Requisites Of Monell and Canton

7
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

27
 Burge appeals from the summary judgment dismissing his suit

against the District Attorney in his official capacity and contends

that the district court erred because: (1) Burge’s suit against the

District Attorney in his official capacity for failure to

promulgate appropriate policies and procedures for his office is

not subject to a defense of absolute immunity; and (2) based on the

evidence of record viewed in the light most favorable to Burge, a

reasonable trier of the facts could conclude that the District

Attorney in his official capacity is liable to Burge in damages

under § 1983 for his constitutional injury due to the Brady

violation caused by the District Attorney’s failure to promulgate

and implement policies, training and procedures to assure that all

evidence favorable to an accused obtained by the Sheriff’s Office

is conveyed to the District Attorney and disclosed to the defense

when the evidence is material either to guilt or to punishment. We

agree that the District Attorney may not invoke an absolute

prosecutorial immunity privilege in an in official capacity suit

for the reasons stated in the foregoing section, but we conclude

that the summary judgment must be affirmed because the evidence of

record does not reasonably meet the requirements for § 1983

liability under Monell and City of Canton v. Harris.

In Monell, the Supreme Court held that a local government is

liable under § 1983 for its policies that cause constitutional

torts. Monell, 436 U.S. at 694. These policies may be set by the

28
government’s lawmakers, “or by those whose edicts or acts may

fairly be said to represent official policy.” Id; see McMillian v.

Monroe County, Ala., 520 U.S. 781, 784-85 (1997). “A court’s task

is to ‘identify those officials or governmental bodies who speak

with final policymaking authority for the local government actor

concerning the action alleged to have caused the particular

constitutional or statutory violation at issue.’” McMillian, 520

U.S. at 784-85 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 737 (1989)).

The Supreme Court in McMillian explained that:

a suit against a governmental officer “in his
official capacity” is the same as a suit
‘”against [the] entity of which [the] officer
is an agent,’” Kentucky v. Graham, 473 U.S.
159, 165[](1985) (quoting Monell v. New York
City Dept. of Social Servs., 436 U.S. 658,
690, n.55[](1978), and that victory in such an
“official-capacity” suit “imposes liability on
the entity that [the officer] represents,”
Brandon v. Holt, 469 U.S. 464, 471 [](1985).

McMillian, 520 U.S. at 785 n.2.

The Supreme Court’s cases on the liability of local

governments under § 1983 instruct us to ask whether governmental

officials are policymakers for the local government in a particular

area, or on a particular issue, and that our inquiry is dependent

on an analysis of state law. Id. at 786. Cf. Jett, 491 U.S. at

737 (“‘[W]hether a particular official has final policymaking

authority’ is a question of state law[.]’” (quoting St. Louis v.

Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion)); Pembaur

29
v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)

(same). “This is not to say that state law can answer the question

for us by, for example, simply labeling as a state official an

official who clearly makes county policy. But our understanding of

the actual function of a governmental official, in a particular

area, will necessarily be dependent on the definition of the

official’s functions under relevant state law.” McMillian, 520

U.S. at 786 (citing Regents of Univ. of Cal. v. Doe, 519 U.S. 425,

429 n.5 (1997) (“[The] federal question can be answered only after

considering the provisions of state law that define the agency’s

character.”)).

Although there is no dispute between the parties as to the

issues, we conclude that we are required to undertake such an

inquiry of our own into: (1) whether the District Attorney is the

final official source for policies, training, and procedures to

assure that all evidence favorable to an accused obtained by the

Sheriff’s Office is conveyed to the District Attorney and disclosed

to the defense when the evidence is material either to guilt or to

punishment; and (2) what entity is liable under § 1983 in an

“official capacity” suit for a district attorney’s policies that

cause constitutional torts related to the failure to disclose

material evidence favorable to criminal defendants.

As we noted earlier, for purposes of Eleventh Amendment

immunity, a district attorney, sued in his official capacity, is a

local, not a state, government official and, therefore, is not

30
entitled to such immunity. Mairena, 816 F.2d at 1064, n.1;

Hudson, 1999 WL 249147, at * 14. Under the Louisiana Constitution

and laws, a district attorney, like a sheriff, is virtually an

autonomous local government official. LA. CONST. art. 5, §§ 26, 27;

art. 6, §§ 5(G), 7(B), 25; La. Rev. Stat. 16:1, et seq. Subject to

a narrow, rarely invoked exception, the Louisiana Constitution

provides that a district attorney has charge of every criminal

prosecution by the State in his district, and is the representative

of the State before, and legal advisor to, the grand jury. LA.

CONST. art. 5, § 26(B); see State v. Perez, 464 So. 2d 737, 746 (La.

1985) (Dixon, C.J., concurring in the denial of rehearing); In re

Guste, 454 So. 2d 806 (La. 1984); Charles J. Yeager & Lee Hargrave,

The Power of the Attorney General to Supercede a District Attorney:

Substance, Procedure & Ethics, 51 LA. L. REV. 733 (1991).

Further, a district attorney is constitutionally authorized to

select assistants as authorized by law, and other personnel. LA.

CONST. art 5, § 26(A); and is constitutionally shielded from the

effect of powers granted other local government entities. LA.

CONST. art. 6, §§ 6(G), 7(B), and 25. In addition to the specific

grants of constitutional powers and duties, there are statutory

provisions for powers and duties; authority to employ assistants,

investigators, and other personnel; funding from state, local, and

independent sources; and the establishment of a retirement system

for district attorneys and their assistants. La. Rev. Stat. §§

16:1-912; §§ 11:1581-1587. These constitutional and statutory

31
provisions indicate that a district attorney is the independent and

final official policymaker for all of the administrative and

prosecutorial functions of his office.

Although we have found no Louisiana cases squarely deciding

the issue, we infer from state cases dealing with sheriffs that the

entity liable for the torts of a district attorney’s employees

under state law is the office of the district attorney as an

independent local government entity.8 In a suit under Louisiana

tort law against a sheriff, seeking to hold him vicariously liable

for the tort of his employee or deputy, and not because of the

8
In Diaz v. Allstate Ins. Co., 433 So.2d 699 (La. 1983), the
Louisiana Supreme Court produced a fractured decision without a
majority rationale. In vacating a district court’s declaration of
unconstitutionality of a state statute, but affirming the district
court’s decision overruling the State’s motion for summary
judgment: two justices were of the opinion that an assistant
district attorney was an employee of the State, not of local
government, for purposes of seeking indemnification by the State
from financial loss arising out of any claim by reason of his
employment-related torts under La. Rev. Stat. § 13:5108.2(B) and
therefore was entitled to bring the state in as a third party; one
justice concurred without reasons; one justice concurred in the
result apparently because he agreed with the district court’s
reasoning that La. Rev. Stat. § 42:1441(A), which purported to
shield the State from liability for damage caused by an employee of
a district attorney, was unconstitutional; one justice dissented
being of the opinion that an assistant district attorney is not a
state employee; one justice dissented principally because he did
not think the State could be third-partied under a statute that
merely facilitates indemnification following a judgment or
specially approved settlement: and one justice dissented without
contemporaneously filing reasons. In view of our circuit precedent
in Mairena v. Foti, 816 F.2d 1061 (5th Cir. 1987), holding that a
Louisiana district attorney is a local government official not
entitled to Eleventh Amendment immunity, none of the opinions in
Diaz is helpful in identifying the entity liable under § 1983 in an
“official capacity” suit for the constitutional torts caused by a
district attorney’s policies.

32
sheriff’s own negligence, the sheriff in his official capacity is

the appropriate governmental entity on which to place

responsibility for the torts of a deputy sheriff. See Jenkins v.

Jefferson Parish Sheriff’s Office, 402 So.2d 699, 671 (La. 1981);

accord Riley v. Evangeline Parish Sheriff’s Office, 637 So.2d 395

(La. 1994). Therefore, a sheriff cannot be held personally liable

in vicarious responsibility for the torts of his employee or

deputy, and any judgment against a sheriff in his official capacity

must be recovered from his liability insurer or the public funds

controlled by him or his successor in office. Id. Because the

district attorney’s position is closely analogous to that of the

sheriff as a virtually autonomous local government official, we

conclude that the Louisiana courts would be guided by the same

principles and deem suits seeking to hold a district attorney

vicariously liable for the torts of assistants or employees, and

not for the district attorney’s own negligence, to be in-capacity

suits in which the district attorney could not be held personally

liable.

Considering the Louisiana constitutional and statutory law and

tort cases, we conclude that, in a suit against a district attorney

in his official capacity under § 1983 for constitutional torts

caused by the district attorney’s policies regarding the

acquisition, security, and disclosure of Brady material, a victory

for the plaintiff imposes liability on the district attorney’s

office as an independent local entity. Accordingly, a district

33
attorney cannot be held personally liable in an “official capacity”

suit, and any judgment against a district attorney in his official

capacity must be recovered from his liability insurer or the public

funds controlled by him or his successor in office.

For purposes of “official capacity” suits under § 1983, the

district attorney’s office resembles other local government

entities. Therefore, we advert to the Supreme Court’s development

of principles for determining whether a municipality or other local

government entity should be held liable under 42 U.S.C. § 1983 for

the constitutional tort of its employee. Title 42 U.S.C. § 1983

provides in pertinent part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress.

In Monell, the Supreme Court held that municipalities and

other local government bodies are “persons” within the meaning of

§ 1983. Monell, 436 U.S. at 689. The Court said that

municipalities cannot be held liable for constitutional torts under

§ 1983 "on a respondeat superior theory,” id. at 691, but they can

be held liable “when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.”

34
Id. at 694. “[T]ortious conduct, to be the basis for municipal

liability under § 1983, must be pursuant to a municipality’s

‘official policy’. . . . [This] requirement was intended to

distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is

limited to action for which the municipality is actually

responsible.” Pembaur, 475 U.S. at 479. In other words, “[t]he

act of the municipality is the act only of an authorized

policymaker or of an employee following the policymaker’s lead.”

Bryan County Comm’r v. Brown, 520 U.S. 397 (1997) (Souter, J.

dissenting).

The “official policy” requirement may be met in at least three

different ways: Id. at 406-08. (1) “[W]hen the appropriate

officer or entity promulgates a generally applicable statement of

policy and the subsequent act complained of is simply an

implementation of that policy.” Id. at 417 (Souter, J.,

dissenting). See, e.g., Monell, 436 U.S. at 660-61 (city agencies

issued a rule requiring pregnant employees to take unpaid leaves

before any medical need arose); (2) Where no “official policy” was

announced or promulgated but the action of the policymaker itself

violated a constitutional right. Bryan County, 520 U.S. at 417-18

(Souter, J., dissenting). See Owen v. City of Independence, 445

U.S. 622 (1980) (city council allegedly censured and discharged an

employee without a hearing); Newport v. Fact Concerts, Inc., 453

U.S. 247 (1981) (city council canceled a license permitting a

35
concert following dispute over the content of performance);

Pembaur, 475 U.S. at 485 (county prosecutor, acting as county’s

final decision maker, directed county deputies to forcibly enter

plaintiff’s place of business to serve capiases upon third

persons); and (3) Even when the policymaker fails to act

affirmatively at all, if the need to take some action to control

the agents of the local governmental entity “is so obvious, and the

inadequacy [of existing practice] so likely to result in the

violation of constitutional rights, that the policymake[r]. . . can

reasonably be said to have been deliberately indifferent to the

need.” Canton, 489 U.S. at 390 (“Only where a municipality’s

failure to train its employees . . . evidences a ‘deliberate

indifference’ to the rights of its inhabitants can . . . a

shortcoming be . . . city ‘policy or custom’. . . actionable under

§1983.").

The present case falls in the third category because Burge

argues that the District Attorney failed through deliberate

indifference to establish policies and procedures needed to protect

accuseds from Brady violations, not that the District Attorney

promulgated a generally applicable policy whose implementation

caused a constitutional tort or that, without announcing a policy,

the District Attorney violated a person’s constitutional right by

his own act. Moreover, based on the record presented for our

review, there can be little doubt that the District Attorney’s

policies and procedures on their face did not violate the

36
Constitution. The District Attorney entrusted the prosecution of

murder and other major felony cases only to well qualified and

experienced assistant district attorneys. The record does not

indicate that the District Attorney established a special training

or testing program for the assistants with regard to identifying

and disclosing exculpatory evidence. Instead, he relied on the

professional education, training, experience, and ethics of the

assistants in the performance of their constitutional

responsibilities. There was no evidence of a single instance,

much less a pattern, of Brady violations by the District Attorney’s

Office prior to the Burge case. The District Attorney testified

that his specific instruction or policy “across the office” was

that any material classified as Brady material was to be

surrendered to the defense; that any assistant district attorney

who withheld Brady material contrary to this policy would be

subject to disciplinary action or termination; and that there had

been no violation by any assistant of which he was aware. The

First Assistant District Attorney testified essentially to the same

policy and to the absence of any violations. The record contains

no evidence controverting their testimony with regard to the office

policy and good record prior to the Burge case.

The District Attorney stated that the office procedure for

inspecting an investigatory file for Brady material was that,

first, the Chief of the Criminal Division screened each felony file

and made an initial determination; second, the assistant district

37
attorney to whom the case was assigned reviewed the file and

conferred with the Chief of the Criminal Division as to the final

determination and response to discovery motions; finally, if the

case was reassigned, the newly assigned assistant would be

thoroughly briefed about the case and the file by the first

attorney on the case.

Specifically, the claim in this case is that the District

Attorney should be held liable in his official capacity because of

his “complete failure to promulgate and implement policies,

training and procedures to insure that all pertinent materials,

including exculpatory evidence, that are gathered by a Sheriff’s

Office are transmitted from the Sheriff to the District Attorney

[and] then disseminated to the appropriate [assistant district

attorneys.]” Appellant’s Orig. Br. at 19.

The Supreme Court has recognized that “there are limited

circumstances in which an allegation of a ‘failure to train’ can be

the basis for liability under § 1983.” Canton, 489 U.S. at 387

(citing numerous courts of appeals cases, e.g., Languirand v.

Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983), cert. denied, 467 U.S.

1215 (1984)). For example, “the inadequacy of police training may

serve as the basis for § 1983 liability only where the failure to

train amounts to deliberate indifference to the rights of persons

with whom the police come into contact. . . . Only where a

municipality’s failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its

38
inhabitants can such a shortcoming be properly thought of as a city

‘policy or custom’ that is actionable under § 1983.” Id. at 388.

If, in the light of the duties assigned to specific officers or

employees the need for more or different training is so likely to

result in the violation of constitutional rights, the policymakers

of a city can reasonably be said to have been deliberately

indifferent to the need, for which the city may be held liable if

the failure to provide proper training, which may be viewed as a

city policy, actually causes injury. Id. at 390. The Canton Court

emphasized that, for liability to attach in this circumstance, the

identified deficiency in a city’s training program must be closely

related to the ultimate injury. Id. at 391. In other words, the

focus must be on the adequacy of the training program in relation

to the tasks the particular officers must perform, and it must be

proven that the identified deficiency in training actually caused

the failure of the employee or officer to perform his duty

constitutionally, i.e., that the injury would have been avoided had

the employee been trained under a program that was not deficient in

the identified respect. Id. We see no reason that these

principles should not also govern our decision in determining

whether the district attorney is liable under § 1983 for failure to

establish policies and procedures obviously needed to prevent Brady

violations.

Applying the foregoing principles, we conclude that there is

no warrant in the record for a reasonable trier of fact to find

39
that the District Attorney deliberately disregarded the need for

additional policies, training, and procedures to insure the

acquisition of Brady material from the Sheriff’s Office, its secure

distribution to the appropriate assistants, and its disclosure to

criminal defendants when the evidence was material to guilt or

punishment. The summary judgment evidence does not focus directly

on the adequacy of the training or supervision of the District

Attorney’s assistants and employees in relation to the tasks that

particular persons must perform. Instead, Burge attempts to

identify deficiencies in the District Attorney’s Office procedures

and record keeping that reflect inadequate supervision or training.

When the District Attorney took office in January 1985, his

staff inventoried all of the files on hand and began a system of

logging each old and new file on Rolodex files. The office

obtained a computer system in 1987 and now keeps track of the files

electronically. The District Attorney established a written policy

of requiring that all files be kept in a record room and checked

out only through a custodian, but this proved to be unworkable due

to the assistants’ continual need to readily access the files.

Hence, assistant district attorneys are allowed to check out files

assigned to them to be kept in their offices. The files may not be

taken out of the District Attorney’s Office or turned over to any

person other than an attorney assigned to the case. The District

Attorney’s Office usually receives a copy of the detectives’

complete investigatory file from the Sheriff’s Office. The

40
Sheriff’s Office retains the original file and in due course

microfilms the entire file and places the original in storage. If

the Sheriff’s detectives generate additional material for a file of

which a copy already has been sent to the District Attorney’s

Office, a copy of any additional matter is forwarded to the

District Attorney. If the Sheriff’s and the District Attorney’s

systems work as designed, until final disposition of a case, there

will always be a complete, up-to-date original investigatory file,

and in due course a complete microfilm copy, in the Sheriff’s

Office, as well as a complete updated copy of the original or

microfilm copy of the investigatory file in the District Attorney’s

Office.

The District Attorney and his first assistant testified that

very infrequently a page or part of an investigatory file copy has

been misplaced by their office, requiring them to obtain backup

copies of pages or parts from the Sheriff’s Office. They could not

recall any specific instance, except in the Burge case, in which an

entire investigatory file copy had been lost by their office; they

were certain that no other murder or major felony file copy had

been misplaced. The District Attorney’s Office does not have a

microfilm system and relies on the Sheriff’s Office as its back-up

system. The record contains no evidence that controverts their

testimony.

Burge argues that the District Attorney’s policies, training,

and procedures were constitutionally deficient because he did not

41
institute any policy or procedure to ensure that the Sheriff’s

Office would turn over all Brady material in each case. The record

is devoid of evidence, however, that prior to the Burge case the

Sheriff’s Office ever failed to deliver complete copies of the

investigatory files to the District Attorney or to update them

properly. The District Attorney’s Office procedures required that

in each case, in addition to the review of the investigatory file

for Brady material by the felony-screening attorney and the

attorney assigned to the case, each assistant district attorney was

required to conduct pre-trial interviews with the State’s

witnesses, which usually included investigating officers, thus

providing another check against failure to detect and disclose

Brady material. Burge does not describe in any detail the specific

Brady-related policy or procedure the District Attorney should have

imposed on the Sheriff’s Office or point to any clear legal

authority for a district attorney’s oversight or regulation of a

sheriff’s operations.9 Burge’s argument that the incumbent

9
It is true, as Burge points out in his opposition to summary
judgment, that the Supreme Court in Kyles v. Whitley, 514 U.S. 419
(1995), in rejecting the argument that the state prosecutor in a
criminal case “should not be held accountable under Bagley and
Brady for evidence known only to police investigators and not to
the prosecutor[,]” stated:
[N]o one doubts that police investigators
sometimes fail to inform a prosecutor of all they know. But
neither is there any serious doubt that “procedures and regulations
can be established to carry [the prosecutor’s] burden and to insure
communication of all relevant information on each case to every
lawyer who deals with it.” Giglio v. United States, 405 U.S. 150,
154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Since, then, the
prosecutor has the means to discharge the government’s Brady

42
district attorney should have established policies and procedures

to bring about greater cooperation in the communication of

information by former assistant district attorneys employed by his

predecessor in office suffers from similar lack of specificity and

citation of legal authority. Burge’s assertion that the District

Attorney failed to institute a procedure to insure that information

of an exculpatory nature was passed on from one assistant to

another is simply incorrect, as reflected by our foregoing

description of the undisputed evidence regarding the procedures of

the District Attorney’s Office. Consequently, we conclude that

responsibility if he will, any argument for excusing a prosecutor
from disclosing what he does not happen to know about boils down to
a plea to substitute the police for the prosecutor, and even for
the courts themselves, as the final arbiters of the government’s
obligation to ensure fair trials.
Id. at 438.
Thus, the Court held that a state prosecutor is responsible,
for purposes of the criminal case, for the failure, by any other
person acting on the government’s behalf in the case, including the
police, to disclose known, defendant-favorable evidence rising to
a material level of importance. But the Court did not indicate
that a state district attorney is vicariously liable under § 1983
for police derelictions or that he or she may use any means other
than those available under state law to actually obtain such
evidence from the police. The suggestion that “‘procedures and
regulations can be established’” for this purpose by a prosecutor
comes from Giglio, which spoke only of a federal prosecutor’s
authority within his own office to insure communication of promises
made to a government witness by one government attorney to every
other government lawyer who deals with the case. Under state law,
the district attorney has similar authority within his own office,
and he has the means to subpoena and depose individual officers and
employees of other government officials, but it is doubtful that he
enjoys the broad power to promulgate Brady-related regulations and
procedures governing the internal operations of a sheriff’s office.

43
based on the evidence of record, no reasonable trier of the facts

could find a deficiency in the District Attorney’s administration

of his office, with respect to the training and supervision of his

own personnel or the elicitation of full disclosure of Brady

material from the Sheriff’s Office, that reflects deliberate

indifference to the constitutional rights of defendants in criminal

cases.

Even if we were to assume deliberate indifference by the

District Attorney in administration, supervision, and training with

respect to Brady material, the summary judgment evidence does not

support a reasonable finding that such a deficiency actually caused

the Brady violation of Burge’s constitutional rights prior to and

during his first trial. The record reflects that there was a

failure to disclose several items of evidence favorable to the

defense within the knowledge of officers acting on the State’s

behalf in the case: (1) Mrs. Frierson’s October 17, 1980 statement

that she could not identify the person with whom Douglas Frierson

departed from her house shortly before his murder; (2) Prestwood’s

statement of April 21, 1981 in which she said Pearson told her that

Frierson had been “ratting” on Pearson and Burge and that Pearson

“shot his head”; (3) Prestwood’s statement of November 23, 1983 in

which she admitted that she lied when she told Hale that Pearson

had been with her on the night of the murder, and in which she

again said that Pearson told her that Frierson was a “rat” and that

“we had got his head blown off”; (4) red automobile paint scrapings

44
from the scene of the crime that did not match Burge’s vehicle; (5)

Detective Hale’s case summaries that referred to the above defense-

favorable evidence. Because the net effect of the State-suppressed

evidence favoring Burge raises a reasonable probability that its

disclosure would have produced a different result at the first

trial, the failure to disclose that evidence violated Burge’s

constitutional rights. See Kyles, 514 U.S. at 433-34; United

States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427

U.S. 97 (1976).

Under the record evidence, however, the cause of the violation

cannot be attributed reasonably to the District Attorney’s failure

to adequately supervise or train his personnel or to diligently

seek Brady material from the Sheriff’s Office. The undisclosed

evidence favorable to the defense was of such a quality and

quantity that any reasonably qualified and experienced prosecuting

attorney would have recognized it as Brady material that he was

required to disclose. The assistant district attorneys who

reviewed the Burge file possessed credentials even superior to

those reasonably required by their positions. Thus, there was no

obvious need for more or different training to enable them to

recognize the particular undisclosed Brady material in this case

and know that they were required to disclose it.

The Sheriff’s Office personnel testified that, when the

District Attorney’s Office discovered that their first copy of the

Sheriff’s investigatory file was missing, a second copy of the

45
entire Sheriff’s investigatory file was delivered to the District

Attorney prior to the first trial. Two assistant district

attorneys, Katz and Pastuszek, testified that Mrs. Frierson’s

October 17, 1980 statement given to Hale definitely was not in the

second copy of the investigatory file that they reviewed prior to

the first Burge trial. Katz, the assistant who handled the first

trial, also testified that he saw two of Prestwood’s statements in

the file but did not remember which ones they were. He did not

recall seeing any of the other Brady material in the file. Thus,

there is a genuine dispute as to the contents of the second copy of

the Sheriff’s investigatory file provided to the District

Attorney’s Office, but it is not a dispute that can be decided so

as to hold the District Attorney liable under § 1983 in his

official capacity. If the evident items of Brady material were in

the second Sheriff’s investigatory file reviewed by the assistant

district attorneys, and they negligently or intentionally failed to

disclose them, the risk of such an occurrence was not so obvious as

to indicate a need for more or different training, or so likely to

happen and violate constitutional rights, that the District

Attorney can reasonably be said to have been deliberately

indifferent to the need for additional policies, training or

procedures to safeguard constitutional rights. See Canton, 489

U.S. at 390. If the items of Brady material were not included in

the second copy of the investigatory file that the Sheriff’s Office

provided to the District Attorney, of course, the responsibility

46
for the failure to disclose them cannot be attributed to the

District Attorney or his assistants for purposes of § 1983

liability.

(d) Burge’s Action Against the District Attorney
In His Official Capacity Based on Alleged
State Constitutional Violations

Burge argues that the District Attorney should be held liable

in his “official capacity” under the State constitution for the

same reasons that he ought to be amenable under 42 U.S.C. § 1983.

He concedes that the state courts have not addressed the issue, but

he contends that we should predict that they will adopt the United

States Supreme Court’s principles in Monell and its progeny in

deciding “official capacity” suits against district attorneys and

local governmental entities based on the state constitutional torts

of their assistants or employees.

Assuming without deciding that we would agree with Burge’s

forecast of state jurisprudential developments, we necessarily

would come to the same conclusions we did when we applied the

federal principles of Monell and its progeny directly to the

evidence of record in this case. Accordingly, for the same reasons

assigned in that regard, we are still persuaded that the District

Attorney’s motion for summary judgment should be granted.

2. Claims Against the Sheriff
in His Official Capacity
Based on Monell and its progeny

The district court denied Sheriff Canulette’s motion for

summary judgment on Burge’s federal Monell claim that Canulette, in

47
his official capacity, was deliberately indifferent to Burge’s

constitutional rights by failing to institute policies and

procedures and train personnel in the transfer of Brady material to

the district attorney’s office. The sheriff filed a notice of

appeal but has failed to demonstrate that we have jurisdiction of

the appeal. We conclude that we do not and accordingly dismiss

the appeal for want of jurisdiction. The district court’s order

denying the sheriff’s motion for summary judgment on Burge’s

“official capacity” suit based on Monell (which held that

municipalities are liable under § 1983 only for violations of

federal law that occur pursuant to official governmental policy or

custom) did not qualify as a “collateral order,” there is no

pendent appellate jurisdiction under which we may consider the

appeal, and this court has not permitted the appeal under 28 U.S.C.

§ 1292(b).

Federal courts of appeals have “jurisdiction of appeals from

all final decisions of the district courts,” except where direct

review may be had in the Supreme Court. 28 U.S.C. § 1291. “‘The

collateral order doctrine is best understood not as an exception to

the ‘final decision’ rule laid down by Congress in § 1291, but as

a ‘practical construction’ of it.’” Swint v. Chambers County

Comm’n, 514 U.S. 35, 41-42 (1995) (quoting Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863 (1994) (quoting Cohen, 337 U.S.

at 546)). In Cohen, the Supreme Court held that § 1291 permits

appeals not only from a final decision by which a district court

48
disassociates itself from a case, but also from a small category of

decisions that, although they do not end the litigation, must

nonetheless be considered “final.” Swint, 514 U.S. at 42 (citing

Cohen, 337 U.S. at 546). “That small category includes only

decisions that are conclusive, that resolve important questions

separate from the merits, and that are effectively unreviewable on

appeal from the final judgment in the underlying action.” Id.

(citing Cohen, 337 U.S. at 546).

The district court’s order denying the Sheriff’s motion for

summary judgment in the “official capacity” suit does not satisfy

Cohen’s requirement that the decision be effectively unreviewable

after final judgment. “When [the Supreme Court] placed within the

collateral order doctrine decisions denying pleas of government

officials for qualified immunity, [the Court] stressed that an

official’s qualified immunity is ‘an immunity from suit rather than

a mere defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to

trial.’” Swint, 514 U.S. at 42 (quoting Mitchell v. Forsyth, 472

U.S. 511, 526 (1985)). Unlike various government officials, when

sued in their personal or individual capacities, municipalities do

not enjoy immunity from suit –- either absolute or qualified -–

under § 1983. See Leatherman, 507 U.S. at 166; Owen 445 U.S. at

650. Personal- or individual-capacity suits seek to impose

personal liability upon a government official for actions he takes

under color of state law. Graham, 473 U.S. at 165. “Official-

49
capacity suits, in contrast, ‘generally represent only another way

of pleading an action against an entity of which an officer is an

agent.’” Id. (quoting Monell, 436 U.S. at 690).

Accordingly, the Sheriff’s assertion that his office cannot be

held liable under § 1983 as interpreted by Monell and its progeny,

because the evidence does not reasonably support a finding that his

policy or custom caused a violation of federal law does not rank as

an immunity from suit. “Instead, the plea ranks as a ‘mere defense

to liability.’” Swint, 514 U.S. at 42 (quoting Mitchell, 472 U.S.

at 526). Because an erroneous ruling on liability may be reviewed

effectively on appeal from final judgment, the order denying the

Sheriff’s summary judgment motion in this “official capacity” suit

was not an appealable collateral order. See id.

Although the district court certified its not otherwise

appealable order with respect to its denial of the Sheriff’s motion

for summary judgment under § 1292(b), a panel of this court denied

permission for an appeal to be taken from that particular ruling.

In an interlocutory appeal certified by the district court under 28

U.S.C. § 1292(b), we have no jurisdiction to consider an order not

otherwise appealable unless the district court states his opinion

in writing that such order involves a controlling question of law

as to which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially advance

the ultimate termination of the litigation and this court of appeal

permits an appeal from the order. See Swint, 514 U.S. at 46.

50
 There is no pendent appellate jurisdiction for us to take up

the Sheriff’s appeal in the “official capacity” suit. We

unquestionably have jurisdiction to review the grant of the

District Attorney’s motion for summary judgment in his “official

capacity” suit because the district court designated it as a final

judgment under Rule 54(b). Also, we have jurisdiction over Hale’s

appeal from the denial of his summary judgment motion asserting

qualified immunity to the extent it raises a question of law by

virtue a previous panel’s permission to appeal that order under §

1292(b). But we do not thereby gain authority to review the denial

of the Sheriff’s motion for summary judgment in his “official

capacity” case. When an order is certified by the trial court, and

accepted by the appellate court for immediate review pursuant to §

1292(b), such review is limited to the certified order; issues

presented by other, noncertified orders cannot be considered

simultaneously. Swint, 514 U.S. at 50 (citing United States v.

Stanley, 483 U.S. 666, 676-77 (1987)). Likewise, when immediate

appeal of a particular ruling fits within the Cohen collateral

order doctrine, the court of appeal does not necessarily have

authority to review other trial court orders in the case.

“‘Rather, such claims are appealable if, and only if, they too fall

within Cohen’s collateral-order exception to the final-judgment

rule.’” Swint, 514 U.S. at 49 (quoting Abney v. United States, 431

U.S. 651, 663 (1977)). Although, the Swint Court did not

specifically address pendent jurisdiction in connection with orders

51
designated as final under Rule 54(b), it stated in general that:

The parties are correct that we have not
universally required courts of appeals to
confine review to the precise decision
independently subject to appeal. . . . We need
not definitively or preemptively settle here
whether or when it may be proper for a court
of appeals with jurisdiction over one ruling
to review, conjunctively, related rulings that
are not themselves independently appealable.
The parties do not contend that the District
Court’s decision to deny the Chambers County
Commission’s summary judgment motion was
inextricably intertwined with that court’s
decision to deny the individual defendant’s
qualified immunity motions, or that review of
the former decision was necessary to ensure
meaningful review of the matter.

Swint, 514 U.S. at 50-51 (internal citations omitted).

The parties in this case have not presented any arguments for

the exercise of pendent jurisdiction; nor have they contended that

the orders are inextricably intertwined or that conjunctive review

is necessary to ensure meaningful review. Hale’s qualified

immunity, which we discuss in the following section, turns on the

resolution of purely factual disputes regarding whether he

suppressed evidence and suborned perjury. The Sheriff’s official

capacity liability turns essentially on the factual question of

whether the Sheriff’s Office delivered copies of its complete

investigatory file to the District Attorney. The District

Attorney’s lack of official-capacity liability stems from Burge’s

failure to present evidence supporting a reasonable finding of a

deliberate indifference to policies, training, and procedures that

caused a constitutional tort. The matters not disposed of involve

52
principally factual disputes that must go to trial, and they

present no appellate intertwinement that requires immediate

conjunctive review. An erroneous ruling on liability may be

reviewed effectively on appeal from final judgment.

Therefore, we dismiss for lack of appellate jurisdiction

Canulette’s appeal of the district court’s denial of summary

judgment on Burge’s Monell claim against Canulette in his official

capacity.

(b) State Law Claims Against Canulette

Because the district court’s rulings denying summary judgment

to Canulette in his official capacity on Burge’s state law claims

likewise are not included in this court’s § 1292(b) certification,

and for the reasons stated in the previous section, we lack

appellate jurisdiction to review them.

B. Issues Related to Burge’s Claims
Against Deputy Hale in His Individual Capacity

1. Absolute Immunity

We agree with the district court that Hale is not entitled to

absolute immunity on the grounds that his alleged constitutional

violations “place him in a role traditionally occupied by

prosecutors.” The traditional functions of a prosecutor are to

decide which suits to bring and to conduct them in court. Hart v.

O’Brien, 127 F.3d 424, 440 (5th Cir. 1997), cert. denied, 119 S.

Ct. 868 (1999). Because Hale’s function was to obtain evidence

prior to indictment, his role was as an investigator, and not a

53
prosecutor, so that he is not entitled to absolute immunity. See

id; Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993) (only when the

functions of prosecutors and detectives are the same, is the

immunity that protects them also the same).

2. Jurisdiction Over Orders
Denying Qualified Immunity

Although this issue was not raised by the parties, as a

threshold matter, this court must examine the basis of its

jurisdiction. Hart, 127 F.3d at 435. A court of appeals has

jurisdiction of appeals from all final district court decisions.

28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309 (1995).

Generally, an order denying a motion for summary judgment is not an

appealable final decision under § 1291. Francis v. Forest Oil

Corp., 798 F.2d 147, 149 (5th Cir. 1986). However, to the extent

that an order of a district court rejecting a governmental

official’s qualified immunity defense turns on a question of law,

it is a final decision within the meaning of § 1291 under the Cohen

collateral order doctrine, and therefore is subject to immediate

appeal. Mitchell, 472 U.S. at 530.

Claims of qualified immunity are analyzed under a two-part

framework. Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th

Cir. 1994). The court first determines whether the plaintiff has

asserted a violation of constitutional right at all. Id. This

court uses “currently applicable constitutional standards to make

this assessment.” Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir.

54
1993). Then the court assesses whether that right was clearly

established such that a reasonable person in the defendant’s

position would have known that his conduct violated that right.

See Siegert v. Gilley, 500 U.S. 226, 231-32 (1991).

Orders denying qualified immunity are based on an issue of law

when: (1) they decide whether the legal right allegedly violated by

the official was clearly established at the time of the challenged

action; or (2) in cases in which the district court has denied

summary judgment for the official on the ground that even under the

defendant’s version of the facts, the defendant’s conduct violated

clearly established law, whether the law clearly proscribed the

actions the defendant claims he took. Mitchell, 472 U.S. at 528.

On the other hand, to the extent that the appealing official

seeks to argue the insufficiency of the evidence to raise a genuine

issue of fact for trial, i.e., that the evidence presented was

insufficient to support a conclusion that the official engaged in

the particular conduct alleged, we do not possess jurisdiction

under § 1291 to consider the claim and, therefore, may not do so

absent some independent jurisdictional base (such as certification

under 28 U.S.C. § 1292(b)). See Johnson, 515 U.S. at 313.

In sum, we possess no jurisdiction over a claim that a

plaintiff has not presented enough evidence to prove that the

plaintiff’s version of the events actually occurred, but we have

jurisdiction over a claim that there was no violation of clearly

established law accepting the facts as the district court viewed

55
them.

In its order denying immunity, the district court was detailed

and precise in articulating the genuine issues of fact that

precluded summary judgment. For the following reasons, we conclude

that this court lacks appellate jurisdiction to review the district

court’s denial of Hale’s summary judgment motion seeking qualified

immunity from Burge’s § 1983 claims.

3. Alleged Brady Violations

Addressing Burge’s claims of Brady violations by Hale in

failing to disclose exculpatory evidence, the district court

declared that “the plaintiff has adduced sufficient evidence to

overcome the good faith10 qualified immunity defense of former

deputy Gary Hale.” According to the court, this evidence included

Hale’s alleged statements to Lt. Hermann after Burge’s conviction

that he had hidden original statements in the trunk of his car, and

that disclosure of these statements would probably affect the

outcome of the case. The district court concluded that Lt.

Hermann’s testimony alone was “sufficient to pierce the good faith

qualified immunity defense of Hale and to create a fact issue for

trial, rendering summary judgment inappropriate.” (Emphasis added).

On appeal, Hale argues that: (1) Mrs. Frierson’s first

10
The “good faith” immunity of public officers from constitutional
tort liability is now a misnomer; ever since Harlow v. Fitzgerald,
457 U.S. 800 (1982), it is forfeited not by showing that the
officer was acting in bad faith but by showing that he was
violating a clearly established constitutional principle. See
Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).

56
statement was not exculpatory because it is “facially neutral,” and

did not become exculpatory until she allegedly gave inconsistent

testimony at Burge’s first murder trial in 1986, after Hale left

the Sheriff’s Office; and (2) Burge cannot put forth sufficient

evidence to show that exculpatory material was withheld

intentionally by Hale.

We disagree that Mrs. Frierson’s October 17, 1980 statement

did not become Brady evidence until it became impeachment evidence

after her testimony at trial. Brady held “that the suppression by

the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of

the prosecution.” Brady, 373 U.S. at 87. In United States v.

Bagley, 473 U.S. 667, 682 (1985), the Court “held that regardless

of request, favorable evidence is material, and constitutional

error results from its suppression by the government, ‘if there is

a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.’” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting

Bagley, 473 U.S. at 682). “Bagley materiality is defined ‘in terms

of suppressed evidence considered collectively, not item-by-item.’”

Id. at 436. Accordingly, the definition of Bagley materiality in

terms of the cumulative effect of suppression leaves the government

with a degree of discretion, and it imposes a corresponding burden.

Id. at 437. In our opinion, Mrs. Frierson’s October 17, 1980

57
statement in which she said she could not identify either the

person who picked her son up just before his murder or the vehicle

the person was driving was “favorable evidence” for the defense

although alone it might not have been “material.” But, when

considered collectively with all of the other suppressed evidence,

it was clearly favorable and material. From our review of the

evidence of record, we believe it may reasonably be contended that

Hale was aware of this long before Mrs. Frierson’s testimony at the

first trial because there is evidence that he was a party to the

other suppressions of evidence and to the suborning of the perjury

by Mrs. Frierson that conflicted with the first statement she gave

to Hale. Moreover, even if the evidence of Hale’s suppression of

Mrs. Frierson’s statement were to be disregarded, Hale’s motion for

summary judgment must be evaluated in light of the evidence of his

other relevant suppressions of evidence.

In support of his motion for summary judgment Hale does not

raise any issues of law but argues that Burge’s countervailing

evidence is not sufficient to prove that Hale intentionally

withheld evidence. In short, the issue presented by Hale’s motion

for summary judgment and the evidence of record is the existence or

non-existence of a triable issue of fact about Hale’s intent, which

is the kind of factual controversy that is not immediately

reviewable. See Johnson, 515 U.S. at 316.11 Therefore, this court

11
We summarily reject Hale’s alternative legal argument that the
law was not “clearly established” because this court did not extend

58
lacks jurisdiction over Hale’s appeal of the court’s denial of

qualified immunity on Burge’s § 1983 Brady claim.

4. § 1983 Claim of Arrest Without Probable Cause

The district court also denied Hale’s motion for summary

judgment on Burge’s § 1983 claim for Burge’s alleged false arrest

on October 24, 1980, declaring:

To establish a constitutional claim for false
arrest, the plaintiff must prove that the
police officer lacked probable cause to arrest
him. . . . The presence or absence of probable
cause is a material question of fact in
dispute, as Detective Hale knew at the time of
the first trial that the one witness who could
identify Burge as having been with the victim
shortly before his murder could not testify as
to that fact the day following the murder.
While it is certainly possible, indeed perhaps
likely, that the factfinder would conclude
that there was sufficient evidence to meet the
probable cause standard as to the arrest of
Burge, such a determination as a matter of law
based upon disputed facts is not appropriate
in a summary judgment ruling.

On appeal, in addressing Burge’s federal claim based on his

alleged false arrest on October 24, 1980, Hale argues that there

was sufficient evidence to meet the probable cause standard needed

for the arrest of Burge, i.e., that Hale had knowledge or

reasonably trustworthy information sufficient to warrant a person

of reasonable caution in the belief that an offense has been

the Brady obligation to police officers until 1988, two years after
Burge’s first trial, in Geter v. Fortenberry, 849 F.2d 1550 (5th
Cir. 1988). Twenty-one years before Geter, this court declared
that suborning perjury and concealing exculpatory evidence by
police officers were constitutional violations. See Luna v. Beto,
391 F.2d 329, 332 (5th Cir. 1967).

59
committed by the person to be arrested. See Dunaway v. New York,

442 U.S. 200, 208 n.9 (1979); Greer v. Turner, 639 F.2d 229, 232

(5th Cir. Unit B Mar. 1981).

Burge and Hale dispute underlying historical facts material to

probable cause: (1) whether Burge had contact with Frierson after

midnight on the day of the murder; (2) whether Burge gave

inconsistent statements to the police; and (3) whether Burge had a

motive for killing Frierson.

The summary judgment record contains evidence tending to

controvert Hale’s version and support Burge’s: (1) Hale’s initial

résumé indicates that Sgt. B. Smith gave Hale a statement before

Hale’s arrest of Burge on October 24, 1980 placing Frierson in

Picayune with three identified men other than Burge at 12:45 a.m.

on the night of the murder; (2) Mrs. Frierson’s initial statement

to Hale the day of the murder stated that she could not identify

the person or the vehicle of the person who picked up Frierson at

her house prior to the murder; (3) Hale’s admissions to Lt. Hermann

indicating that he had suborned the perjury of Mrs. Frierson to the

effect that she saw Burge pick up her son on the night of his

murder, and the perjury of both Mrs. Frierson and Glenda Frierson

Hale that Burge described details of the murder scene and trauma to

the victim’s body on the morning of the murder; (4) Hale’s initial

résumé did not refer to any such statement by Mrs. Frierson or

Glenda Frierson Hale; (5) Mrs. Frierson admitted at the second

trial that her testimony at the first trial had been perjurious;

60
and (6) Hale’s “loss” of the original tape of one of Burge’s

statements suggests that Hale’s claim that Burge’s pre-arrest

statements were inconsistent is erroneous or intentionally false

and that Hale cannot convincingly demonstrate the alleged

inconsistencies.

On the other hand, the summary judgment record contains no

evidence showing what information, if any, Hale presented to the

magistrate who issued the warrant for Burge’s arrest on October 24,

1980, other than Hale’s boiler-plate affidavit stating, in

pertinent part, that on October 17, 1980, “Gerald Burge did

willfully, and maliciously Murder Douglas Frierson On US Hwy 190

outside of Slidell, La.” In his deposition, Hale did not testify

as to what information, if any, he presented to the magistrate with

his application for the arrest warrant.

Hale argues that, nevertheless, he is entitled to a judgment

of qualified immunity as a matter of law because his conduct in

applying for the warrant, and arresting Burge, was in fact

objectively reasonable, citing Malley v. Briggs, 475 U.S. 335

(1986). However, based on the present disputed state of factual

development, it is not now possible to conclude as a matter of law

-- considering the conflicting evidence in a light most favorable

to Burge -- that Hale acted in an objectively reasonable manner in

arresting Burge on October 24, 1980. See Lampkin v. City of

Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993). In such case, this

court lacks appellate jurisdiction over an appeal from denial of

61
summary judgment. See id. at 435-36; Mangieri v. Clifton, 29 F.3d

1012, 1016 (5th Cir. 1994).

5. State Law Constitutional and Ordinary Tort Claims

Defendant Hale also appeals the district court’s denial of his

motion for summary judgment on Burge’s state law claims of

malicious prosecution, false arrest and imprisonment, and violation

of civil rights under the Louisiana Constitution.

(a) State Constitutional Claim

In examining Burge’s claim that Hale violated his civil rights

arising under the Louisiana Constitution, the district court found

that “[b]ecause there are allegations that . . . Hale was not

acting in good faith, but intentionally, in depriving plaintiff of

his constitutional rights, qualified immunity for state

constitutional violations must be denied.”

Whether an order is an appealable “final decision” for

purposes of 28 U.S.C. § 1291 is a question of federal, not state,

law. Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996). An order

denying qualified immunity under state law is immediately

appealable as a “final decision,” provided that “the state’s

doctrine of qualified immunity, like the federal doctrine, provides

a true immunity from suit and not a simple defense to liability.”

Id. at 803-04. The Louisiana Supreme Court has answered this

question affirmatively, declaring that “the same factors that

compelled the United States Supreme Court to recognize a qualified

good faith immunity for state officers under § 1983 require us to

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recognize a similar immunity for them under any action arising from

the state constitution.” Moresi v. Department of Wildlife and

Fisheries, 567 So. 2d 1081, 1093 (La. 1990).

Therefore, we are persuaded that Louisiana law insulates

government officials entitled to qualified immunity from liability

and the burden of suit, as well as from judgment for damages, so

that orders premised on the denial of qualified immunity in actions

based on Louisiana constitutional violations are appealable in a

federal court action to the same extent as district court orders

premised on the denial of federal qualified immunity. See Cantu,

77 F.3d at 804.

We then address whether the district court’s denial of Hale’s

motion for summary judgment on Burge’s state constitutional claims

on the grounds of qualified immunity “turned on an issue of law.”

Id. We conclude that it does not.

On appeal, Hale adopts by reference the same purely factual

argument asserted against Burge’s federal constitutional claims,

i.e., that there is insufficient evidence that Hale intentionally

withheld exculpatory material and suborned perjury. For the same

reasons given above, we lack jurisdiction over the district court’s

denial of qualified immunity on Burge’s state constitutional claim.

(b) State Ordinary Tort Law Claims

Whether we can exercise pendent appellate jurisdiction over

Burge’s ordinary state law tort claims against Hale depends on

whether we have jurisdiction over Hale’s appeal of the denial of

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qualified immunity. See Swint, 514 U.S. at 51 (pendent appellate

jurisdiction is limited to questions that are “inextricably

interwoven” with an issue that is properly before the appellate

court”); see also Shinault v. Cleveland County Bd. of County

Comm’rs, 82 F.3d 367, 370 (10th Cir. 1996), cert. denied, 519 U.S.

1078 (1997). Because we conclude that we lack jurisdiction over

Hale’s interlocutory appeal of the denial of qualified immunity, we

cannot exercise pendent appellate jurisdiction to review Hale’s

state law claims of malicious prosecution, false arrest and false

imprisonment. See Shinault, 82 F.3d. at 371; Sevier v. City of

Lawrence, Kan., 60 F.3d 695, 701 (10th Cir. 1995) (“given our

holding that we lack jurisdiction over Defendants’ appeal of the

district court’s ruling on qualified immunity, no permissible

appeal exists upon which to exercise pendent jurisdiction”).

Therefore, we dismiss for lack of jurisdiction Hale’s appeal

of the district court’s denial of summary judgment on Burge’s §

1983 claims and state law claims.

V. CONCLUSION

For the reasons assigned, SUMMARY JUDGMENT in favor of

District Attorney Walter H. Reed and against Gerald Burge

dismissing Burge’s suit against the District Attorney, in his

official capacity, with prejudice, is AFFIRMED; the APPEALS of

Sheriff Patrick J. Canulette, in his official capacity, and Gary

Hale are DISMISSED for lack of jurisdiction; and the case is

REMANDED to the district court for further proceedings.

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SUMMARY JUDGMENT AFFIRMED; other APPEALS DISMISSED; REMANDED.

All pending motions are hereby MOOT, in light of the opinion.

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