United States Court of Appeals
Fifth Circuit
F I L E D
January 29, 2007
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 06-10640
(Summary Calendar)
_____________________
DANIEL FRANK RHODES,
Plaintiff-Appellee
versus
CITY OF ARLINGTON,
Defendant-Appellant
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Appeal from the United States District Court
for the Northern District of Texas
(3:05-CV-2343)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
In this interlocutory appeal, Defendant-Appellant City of
Arlington (the “City”) contends that the district court erred in
denying the City’s Federal Rule of Civil Procedure 12(b)(6) motion
to dismiss the claim of Plaintiff-Appellee Daniel F. Rhodes for an
alleged tort claim. The City’s motion was grounded in its
assertion of absolute immunity under the Texas Tort Claims Act
(“TTCA”). The City also complains of the district court’s refusal
*
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this opinion should not be published and is not precedent except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.
to dismiss Rhodes’s request for declaratory relief regarding
expungement of public records that he alleges to be false by virtue
of the acts of City employees who are implicated in his tort
action. The City also resists Rhodes’s assertion that we lack
appellate jurisdiction to hear this interlocutory appeal of the
order denying the City’s 12(b)(6) motion.
We have now reviewed the record on appeal and the factual and
legal arguments of the parties as set forth in their briefs.
First, for essentially the reasons expressed by the district court,
we agree that we do have appellate jurisdiction to review the
district court’s denial of the City’s dismissal motion. Even
though our jurisprudence makes clear that a municipality is not
entitled to qualified immunity based vicariously on qualified
immunity of its officers, agents, or employees, the same does not
hold true for the direct immunity of a municipality such as that
accorded to them under the TTCA. For purposes of the collateral
order doctrine, the district court’s order declining to dismiss the
City from this suit on the basis of its asserted immunity is
collateral to the merits of the claims advanced by Rhodes against
the City and others. Implicated is the pervasive maxim that
immunity protects not only against liability but against standing
trial as well.
That said, we decline to write separately to any extent, as
doing so would be unnecessarily redundant: For the reasons stated
and explained fully in the Conclusions and Recommendation of the
2
United States Magistrate Judge, as well as those announced in the
Order of the district court adopting those Conclusions and
Recommendation, we affirm the court’s denial of the City’s motion
to dismiss and return the case for further proceedings there.
AFFIRMED.
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