United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 7, 2005
______________________ Charles R. Fulbruge III
Clerk
No. 04-11021
______________________
VICTOR ALVARADO DELEON,
Plaintiff-Appellee,
v.
CITY OF DALLAS, ET AL.,
Defendants,
DAVID LARSEN, Dallas Police Officer;
OFFICER MATA, #7313,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:02-CV-1097-K
Before JOLLY, JONES, and DEMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The question in this qualified immunity appeal is whether
plaintiff DeLeon sufficiently stated a claim for violation of his
constitutional right to be free from false arrest and detention
against Officers Larsen and Mata. Because he did not do so, either
on the merits or as to their qualified immunity defense, we reverse
the district court’s order denying the Officers’ motion to dismiss
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
these claims. We decline to rule, however, on the sufficiency of
DeLeon’s pleading of other claims that the Appellants have
inadequately briefed. Consequently, the district court’s order is
reversed in part, and the appeal is dismissed in part.
BACKGROUND1
On April 19, 2001, Victor Alvarado DeLeon (“DeLeon”), a
Mexican national, traveled to a mechanic shop in Dallas, Texas,
with a male companion, also a Mexican national, to observe repairs
to a vehicle owned by DeLeon’s brother-in-law. According to his
affidavit filed on or about that date, undercover Officer DeLaPaz
allegedly witnessed a drug transaction between DeLeon and a
confidential informant at the shop. As DeLeon and his companion
were leaving the shop, police cars converged on the scene. Dallas
police officers detained all of the men at the premises, forced
them to lie face-down on the ground, and searched them. DeLeon was
interrogated and accused, along with his companion, of selling
cocaine to the confidential informant. DeLeon had no significant
amount of money on his person, but a baggie containing a white
powder was allegedly removed from his pants pocket during the
search.
DeLeon was arrested for selling four ounces of cocaine
for $2,500 to the confidential informant. Thereafter, Officers
David Larsen (“Larsen”) and Michael Mata (“Mata”) field tested the
1
We take as true the facts alleged by DeLeon’s Complaint,
see R. at 86-100.
2
white powder substance, which, they reported, weighed 131.8 grams
and tested positive for cocaine. The baggie was checked into a
police lockbox, tagged, and re-weighed at 158.7 grams, 26.9 grams
more than the amount earlier recorded.
DeLeon was released on a writ of habeas corpus three days
later, was delivered to the Immigration and Naturalization Service,
and was summarily expelled to Mexico. Because of family
obligations in the United States, DeLeon reentered the country. On
or about June 11, 2001, he was stopped while driving to a gas
station in Texas and arrested on a warrant related to his April
19, 2001, arrest.
During the stop, one of the arresting officers indicated
that DeLeon’s April 19 drug sale to the confidential informant had
been videotaped. However, the state could not later locate and
produce the tape upon request. At the further request of DeLeon’s
counsel, the baggie containing the white powder substance was
re-tested for content and fingerprints. Lab tests, made available
to DeLeon and his counsel in August, concluded that DeLeon’s
fingerprints were not on the baggie; that the substance remaining
in the package was “not subject to quantitation [sic];” and that it
weighed 126 grams. The lab report also described the baggie as a
“green plastic wrapper,” while the arrest affidavit had referred to
a “clear baggie.” DeLeon remained in detention until a trial date
of September 10, 2001. Only then, when the confidential informant
failed to appear, were the charges dropped, and he was released.
3
DeLeon denies being involved in any unlawful activity on April 19,
2001.
On April 19, 2002, DeLeon filed an action in state court
against a number of defendants, including Officer Larsen, which the
City of Dallas removed to federal court. In an amended complaint,
he joined Officer Mata and others and asserted, inter alia, federal
causes of action under 42 U.S.C. §§ 1981 and 1983 for false arrest
and detention, and overlapping state law claims including malicious
prosecution.
Sued in their individual capacity, Officers Larsen and
Mata asserted qualified immunity. Relatedly, they filed a
Rule 7(a) motion urging that DeLeon specify his allegations
tailored to their qualified immunity defenses. DeLeon opposed the
Rule 7(a) motion, and the district court denied it.2 They then
joined a motion for protective order, filed in a related case,3
seeking to stay discovery pending the district court’s qualified
immunity ruling. Finally, the Officers filed a Rule 12(c) motion
2
Although Officers Larsen and Mata do not appear to appeal
directly the district court’s denial of their Rule 7(a) motion,
the district court should have ordered a Rule 7(a) reply in this
case. As we have consistently held, “trial courts ought
routinely require plaintiffs to file a reply under [Rule] 7(a) to
qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161
(5th Cir. 1999). Despite the district court’s error, we need not
remand this case for a Rule 7(a) reply as we are convinced,
especially after oral argument, that DeLeon has pled his “best
case.” see Morin, 77 F.3d at 121.
3
Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action
No. 3:02-CV-0649-K, on appeal to this Court in Nos. 04-10488 and
04-10829.
4
for judgment on the pleadings based on DeLeon’s failure to state a
claim capable of defeating their qualified immunity defenses.
The district court dismissed DeLeon’s § 1981 claim, but
it found that DeLeon pleaded facts sufficient to state federal
causes of action against Officer Larsen for false arrest and
detention under § 1983, as well as state law causes of action for
defamation and libel, intentional infliction of emotional distress,
and malicious prosecution and abuse of process. The court also
found DeLeon’s pleading sufficient to state claims against Officer
Mata for false arrest and imprisonment, defamation and libel, and
malicious prosecution under state law.4 In so doing, the court
rejected the Officers’ qualified immunity defenses from the
standpoint of insufficient pleadings, and it found that genuine
issues of triable fact existed as to whether Officers Larsen and
Mata engaged in the acts alleged to have violated DeLeon’s
constitutional rights. The court did not set forth these facts.
These Officers timely appealed.
4
Because the Officers specifically brief only the district
court’s denial of their qualified immunity defenses as to
DeLeon’s federal false arrest and state malicious prosecution
claims, they have waived any appellate contest of the sufficiency
of pleading of DeLeon’s other claims. Shields v. Twiss, 389 F.3d
142, 151 (5th Cir. 2004). Nevertheless, the outcome of this
appeal will most certainly affect the district court’s treatment
of the other claims.
5
JURISDICTION AND STANDARD OF REVIEW
To the extent that the district court’s determination
turns on a question of law, this court has jurisdiction to review
a district court’s denial of qualified immunity. Johnson v.
Johnson, 385 F.3d 503, 528 (5th Cir. 2004), both as to federal and
related state law claims. Morin v. Caire, 77 F.3d 116, 119-20
(5th Cir. 1996). We review de novo, according to the allegations,
a district court’s order denying a defendant’s Rule 12(c) motion to
dismiss based on qualified immunity. Morin, 77 F.3d at 120.5
Dismissal is warranted “only if it appears that no relief could be
granted under any set of facts that could be proved consistent with
the allegations.” Id.
DISCUSSION
Qualified immunity shields government officials perform-
ing discretionary functions from liability as well as from suit,
e.g., the costs and risks of pre-trial discovery and trial. Babb
v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). Qualified immunity
analysis is two-tiered. First, the court must determine whether
the plaintiff sufficiently alleged a violation of a clearly
established constitutional right. Morin, 77 F.3d at 120; Anderson,
184 F.3d at 443. If so, the court determines whether the
defendants’ conduct was objectively reasonable in light of law
5
The standard applicable to a Rule 12(c) motion is the same
as that applicable to a Rule 12(b)(6) motion to dismiss for
failure to state a claim. Johnson, 385 F.3d at 529.
6
clearly established at the time of the events giving rise to the
suit. Id.
In response to a qualified immunity defense, “plaintiffs
suing governmental officials in their individual capacities must
allege specific conduct giving rise to the constitutional
violation.” Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439,
443 (5th Cir. 1999).6 Distinct from the notice pleading standard
embodied in Rule 8, the heightened pleading standard applicable in
cases defended on qualified immunity grounds requires a plaintiff
to plead “with factual detail and particularity, not mere
conclusory allegations.” Id.; see also Schultea v. Wood, 47 F.3d
1427, 1430 (5th Cir. 1995). In the § 1983 context, this standard
translates, inter alia, into the requirement that the plaintiff
“identify defendants who were either personally involved in the
constitutional violation or whose acts are causally connected to
the constitutional violation alleged.” Anderson, 184 F. 3d at 443.
A. Federal False Arrest and Detention Claim
Officers Larsen and Mata contend that DeLeon’s false
arrest claim should be dismissed for failure to plead
particularized facts that defeat probable cause, and failure to
6
See Anderson, 184 F.3d at 443 (finding that the Supreme
Court’s decision in Leatherman v. Tarrant County Narcorics
Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160
(1993), did not abrogate the heightened pleading standard
established in Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985),
as to actions against government officials in their individual
capacities).
7
allege their personal involvement in DeLeon’s April 19, 2001,
arrest.
Maintaining the sufficiency of his pleadings, DeLeon does
not contest that probable cause for his arrest existed on that
date. He, in fact, concedes that the officers who arrived on the
scene, having been alerted to the confidential informant’s tip
(false or not) and informed by Officer DeLaPaz that DeLeon had just
engaged in a drug transaction (true or not), had probable cause, on
those bases, to arrest him. Red Br. at 10. He also waives the
issue whether Officers Larsen and Mata had probable cause to test
the substance found on his person. Rather, in his Complaint DeLeon
asserts that Officer Larsen is liable for “falsely arresting and
detaining Mr. DeLeon and causing to be prepared documentation
falsely implicating Mr. DeLeon in the sale of illegal drugs, when
no probable cause or justification existed for such actions.”
R. at 93-94. Significantly, contrary to the district court’s
finding, DeLeon’s Complaint does not assert a false arrest and
detention claim under state (or federal) law against Officer Mata.
As to Officer Larsen, DeLeon has failed to state a claim
for constitutional violation of his right to be free from false
arrest. His factual allegations do not bring Officer Larsen within
the purview of his false arrest claim. The only particularized
factual allegation against Officer Larsen (and Mata) is that he
(and Mata) allegedly field tested the white powder substance and
reported that it tested positive for cocaine. This is the only act
8
that DeLeon attributes to the Officers, but according to his own
allegations, this act was unrelated to his false arrest. DeLeon
alleges that he was observed by Officer DeLaPaz exchanging drugs
for money with the confidential informant, was apprehended by an
unnamed police officer(s), searched by an unnamed police officer(s)
who seized a baggie of white powder from his pants pocket, accused
of selling cocaine, and then arrested. (First Am. Complaint,
¶ 16). According to his sole factual allegation against Officers
Larsen and Mata (¶ 22), the allegedly false field test for cocaine
has no connection to the initial arrest but instead relates to the
allegedly false arrest warrant affidavit executed by Officer
DeLaPaz.
DeLeon does not allege that Officer Larsen (or Mata)
participated in his initial arrest on April 19, nor does he allege
that Officer Larsen (or Mata) participated in any way in the events
leading up to that arrest. Consequently, his contention that
Officers Larsen (and Mata) “were the producing cause of [his]
wrongful and unlawful arrest . . .,” see Red Br. at 9, is
unsupported by the factual allegations stated in his Complaint.
DeLeon also alleges, however, that Larsen is within the
purview of a false detention claim on the theory that Larsen’s
false reporting on April 19, 2001, led, in part, to the arrest
warrant by which he was taken into custody on June 11 and held for
three more months. (This is a generous reading of a vague
complaint.) Unfortunately for DeLeon, the claim still fails for
9
lack of particularity. This court addressed arguments of a similar
nature in Morin, supra. There, the court found that the
plaintiff’s allegations — for example, that the defendants “knew or
should have known that the statements of [another person allegedly
involved in the asserted violations] [sic] were false” — failed to
state a claim under § 1983 for lack of specific factual allegations
to support these conclusions. Morin, 77 F.3d at 121. DeLeon’s
Amended Complaint alleges factually that Larsen (and Mata)
“allegedly” field tested the “white powder” and concluded it was
cocaine. (¶ 22). Later, it states conclusionally that Larsen
caused documentation to be prepared falsely implicating DeLeon
(¶¶ 48, 49, 50).7 The Complaint suffers deficiencies similar to
those in the complaint in Morin. To start, DeLeon’s conclusory
allegations are not as particularized as those in Morin. Instead
of alleging unreliability and collusion in his Complaint, DeLeon
argues these claims in briefing only. It is only in argument that
DeLeon claims that “[c]learly, Mata and Larsen were either acting
in concert with DeLaPaz in his efforts to violate clearly
established law, or Larsen and Mata failed and refused to perform
the tasks for which they were hired, again resulting in a violation
of clearly established law.” See Appellee’s. Br. at 3, 7, 10.
Nowhere in his complaint does DeLeon allege that Officers Larsen
7
As to Mata, the Complaint purports only to state claims for
defamation (¶ 51) and malicious prosecution (¶ 54). As we note
supra, Officer Mata does not brief these claims and has waived
them.
10
and Mata conspired with Officer DeLaPaz to violate his rights or
acted with such incompetence that they should be stripped of
qualified immunity. The Complaint does not allege that the
officers did not conduct a field test at all; nor does it allege
that the field test was negative and they falsely reported the
result as positive; nor does it allege that their field testing was
so incompetent that no reasonable officer could have relied on its
results.
Counsel’s attempt to inject a failure to train claim into
the case at oral argument, presumably as a last-ditch effort to
defeat qualified immunity or probable cause by demonstrating plain
incompetence, fails, at the least, for the complete absence of
factual allegations in his Complaint regarding improper training or
improper performance of police testing procedures. DeLeon’s only
other Complaint allegation of falsity is that “any allegations made
by any officer to the contrary [of his denials] are false.”
(¶ 41). R. at 92. DeLeon’s attempt to impute to Officers Larsen
(and Mata) the particular allegations against Officer DeLaPaz,
citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.
1985), does not comport with the heightened pleading standard
applicable in cases involving qualified immunity defenses.
B. State Law Malicious Prosecution Claim
Officers Larsen and Mata assert that any federal cause of
action for malicious prosecution by DeLeon is foreclosed by circuit
11
precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003)
(en banc). His malicious prosecution claim, however, is founded in
state law, to which Castellano is inapplicable. Because the
Officers have not briefed state law, we decline to rule on an
inadequately briefed issue.
CONCLUSION
Based on the foregoing discussion, this court REVERSES
the district court’s denial of immunity to Officers Larsen and Mata
for DeLeon’s false arrest and detention claims, and we REMAND WITH
INSTRUCTIONS TO DISMISS these claims. The appeal is DISMISSED
insofar as it relates to the Officers’ inadequately briefed
challenge to the sufficiency of pleading of DeLeon’s state law
claims.
REVERSED IN PART, REMANDED IN PART, and DISMISSED IN
PART.
12