Good v. Curtis

Case: 09-10341 Document: 00511059678 Page: 1 Date Filed: 03/23/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 23, 2010

No. 09-10341 Charles R. Fulbruge III
Clerk

DONALD WAYNE GOOD,

Plaintiff-Appellee
v.

FRED CURTIS, individually and in his official capacity,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas

Before STEWART, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Appellant’s Motion for Panel Rehearing is DENIED. This opinion is
substituted in place of the prior opinion, Good v. Curtis, __ F.3d __, 2010 WL
550520 (5th Cir. Feb. 18, 2010).
Appellee Donald Wayne Good brought suit under 42 U.S.C. § 1983 against
Appellant Fred Curtis, alleging that Curtis violated Good’s rights under the
Fourth and Fourteenth Amendments when he manipulated a photographic
lineup in an effort to procure a false identification from the victim in a rape case.
Curtis takes this interlocutory appeal from the district court’s denial of his
motion for summary judgment on the basis of qualified immunity. The only
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No. 09-10341

issue before us today is whether Curtis is entitled to qualified immunity with
regard to the alleged violations of Good’s Fourth and Fourteenth Amendment
rights. On this limited appeal, we conclude that the district court correctly
determined that the genuine issues of fact regarding Curtis’s conduct were
material to the denial of qualified immunity and, therefore, DISMISS the
appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case, viewed in the light most favorable to Good as the
non-moving party, are as follows. On June 18, 1983, Good was arrested and
charged with aggravated rape, aggravated robbery, and burglary of a habitation.
After no less than three trials, Good was wrongfully convicted and sentenced to
life imprisonment. After serving thirteen years, seven months, and five days in
prison, Good was finally exonerated by DNA evidence on December 22, 2004.
Good’s long and unfortunate path through the legal system began on June
9, 1983, when a man entered the Irving, Texas home of Jane Doe, bound her and
her eight-year old daughter and forced Doe to the bedroom, where he raped her.
Shortly after the man left, Doe was able to free herself and her daughter and
called the Irving Police Department. The crime scene was subsequently
processed for evidence. At the same time, a local hospital examined Doe and
administered a rape kit. Later that day, Doe met with police and described her
assailant as a white male in his twenties, six feet tall, about 190 pounds, clean
shaven, with a medium to large build, blondish-brown hair, and dark tan skin
tone. Based on Doe’s description, a composite sketch of the perpetrator was
prepared and then distributed throughout the Irving Police Department.
On June 15, 1983, Good was arrested in an unrelated incident stemming
from a bond forfeiture on a prior DWI charge. Curtis, who was not assigned to
the investigation of Doe’s rape, had suspected Good was responsible for certain
unsolved daytime burglaries in Irving. Accordingly, Curtis brought Good to his

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office for the purpose of interviewing him about the unsolved burglaries. During
the interview, Curtis became angry with Good when he would not provide any
information on the burglaries. Curtis pulled out a copy of the composite sketch
in the Doe case and informed Good that he looked somewhat similar to the
assailant and that, if Good did not think the picture looked like him, Curtis
would “fix it” to make sure that it did.
When Good persisted in his refusal to address the unsolved burglaries,
Curtis told Good he was going to get him charged with Doe’s rape and took Good
outside of his office to photograph him for a lineup. Curtis proceeded to take
several pictures of Good. He repeatedly altered the light settings on the camera
with each picture in an effort to make Good’s photograph better match the “dark
tan” skin tone of the suspect in the police sketch. Once satisfied with the
resulting photograph, Curtis added it to a lineup and separately presented it to
Doe and her daughter. Doe’s daughter was unable to make an identification.
Doe, on the other hand, immediately selected Good out of the lineup. She
became very emotional upon seeing Good’s photograph and identified him as her
attacker. As a result, Good was rearrested on June 18, 1983, and charged with
aggravated rape, aggravated robbery, and burglary of a habitation.
After Doe’s identification of Good in the photographic lineup, a live lineup
followed on July 26, 1983, conducted by the Dallas County Sheriff’s Department.
The participants in the lineup were given specific phrases that the perpetrator
used during the home invasion to repeat during the lineup. Doe again, and her
daughter for the first time, identified Good as the perpetrator.
Good’s first criminal trial, in 1983, ended in a hung jury. His second trial,
in 1984, resulted in a guilty verdict, but the verdict was later overturned because
of prosecutorial misconduct unrelated to the photographic lineup. In 1987, the
government tried Good for a third time, and he was convicted of burglary of a

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habitation with intent to commit rape. In each of the criminal trials, both Doe
and her daughter identified Good as the attacker.
In 2001, the Dallas County Criminal District Court No. 3 granted Good’s
motion for post-conviction DNA testing of the biological evidence from the crime
scene. The DNA test ruled Good out as Doe’s attacker. Based on this new
finding, the Texas Court of Criminal Appeals granted Good’s state habeas
petition and vacated his sentence on November 17, 2004, followed by the Dallas
County Criminal District Court No. 3’s dismissal of all charges on December 22,
2004.
On November 17, 2006, Good filed a complaint in the U.S. District Court
for the Northern District of Texas against the City of Irving; the Irving Police
Department; the Chief of Police for the City of Irving, individually and in his
official capacity; and Curtis, individually and in his official capacity, under 42
U.S.C. § 1983 for alleged violations of the First, Fourth, Fifth, Eighth, Ninth,
and Fourteenth Amendments to the United States Constitution and article I,
section 19 of the Texas Constitution. In March 2007, the district court dismissed
all claims against the Irving Police Department, the Irving Chief of Police, in his
official and individual capacities, and Curtis, in his official capacity. On June
1, 2009, the district court also dismissed all claims against the City of Irving and
the claims against Curtis, in his individual capacity, based on alleged violations
of Good’s First, Fifth, Sixth, Eighth and Ninth Amendment rights.
Still, the district court did not entirely dismiss Good’s case. The district
court denied Curtis’s motion for partial judgment on the pleadings and motion
for summary judgment as to Good’s claims based on alleged violations of the
Fourth and Fourteenth Amendments as well as article I, section 19 of the Texas
Constitution because genuine issues of fact existed as to whether Curtis was
entitled to qualified immunity. This interlocutory appeal followed with regard

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to Curtis’s qualified immunity defense in connection with Good’s claims under
the Fourth and Fourteenth Amendments.
II. STANDARD OF REVIEW
“[A]n order denying qualified immunity, to the extent it turns on an ‘issue
of law,’ is immediately appealable.” Behrens v. Pelletier, 516 U.S. 299, 311 (1996)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)) (citation omitted). This
jurisdiction includes interlocutory appeals from denials of motions for summary
judgment. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005)
(citing Behrens, 516 U.S. at 307); see also 28 U.S.C. § 1291.
The limitation of our interlocutory appellate jurisdiction to questions of
law prohibits our “consider[ation] [of] the correctness of the plaintiff’s version of
the facts.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)
(quotation omitted). In other words, “[t]he essentially legal [immunity] question,
which we treat as an entitlement distinct from the merits of the case, is
appealable only to the extent that it turns on an issue of law[.]” Atteberry, 430
F.3d at 252 (second alteration in the original) (quotations omitted).
This means that the district court’s finding that a genuine factual dispute
exists is a factual determination that this court is prohibited from reviewing in
this interlocutory appeal. Johnson v. Jones, 515 U.S. 304, 313 (1995). But the
district court’s determination that a particular dispute is material is a
reviewable legal determination. Foley v. Univ. of Houston Sys., 355 F.3d 333,
337 (5th Cir. 2003). “Thus, a defendant challenging the denial of a motion for
summary judgment on the basis of qualified immunity must be prepared to
concede the best view of the facts to the plaintiff and discuss only the legal issues
raised by the appeal.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)
(quotation omitted).
Within this limited appellate jurisdiction, “[t]his court reviews a district
court’s denial of a motion for summary judgment on the basis of qualified

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immunity in a § 1983 suit de novo.” Collier v. Montgomery, 569 F.3d 214, 217
(5th Cir. 2009) (citing Freeman, 483 F.3d at 410); see also Club Retro, 568 F.3d
at 194 ; Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
III. DISCUSSION
Good contends that his Fourth and Fourteenth Amendment rights were
violated when Curtis manipulated Good’s picture to create an inaccurate photo
lineup in an effort to procure a false identification. Specifically, Good claims
that: (1) this intentional effort to cultivate an irreparable misidentification
constitutes a violation of due process, and (2) Curtis secured the subsequent
charges leading to Good’s conviction without probable cause. We address both
claims in turn.
A. Good’s Fourteenth Amendment Claim
We turn first to the question of whether a concerted effort on the part of
a police officer to “frame” a suspect by manipulating a photo for a photo lineup
to produce a false identification from an eyewitness constitutes a violation of the
due process rights secured by the Fourteenth Amendment and whether such a
violation was clearly established at the time Curtis acted. Thus applying the
rubric of qualified immunity, we find that such conduct would constitute a
violation of the Fourteenth Amendment and that any officer so acting would not
be entitled to qualified immunity. Accordingly, Good has raised a genuine issue
of material fact sufficient to overcome summary judgment on his Fourteenth
Amendment claim.
Curtis relies upon cases which involve a test designed primarily to
suppress evidence where an identification may be questionable but has not been
disproved to assess the constitutionality of his actions. However, this case
concerns a situation where the criminal defendant has been exonerated and was
wrongly convicted because – taking the facts most favorable to Good – a police
officer deliberately framed him. The DNA evidence that cleared Good and

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secured his freedom also removes all doubt as to the inaccuracy of Doe’s
identification. The reason for the misidentification, we must assume at this
summary judgment juncture, was Curtis’s concerted efforts to manipulate the
photo. The Supreme Court’s “suggestive lineup” suppression test announced in
Manson v. Brathwaite, 432 U.S. 98 (1977), is not designed for and does not apply
in the context of a § 1983 suit following DNA exoneration for a conviction derived
from police conduct intentionally designed to procure a false identification by
unlawful means.
As directed by our decision in Geter v. Fortenberry, 882 F.2d 167 (5th Cir.
1989) (Geter II), we conclude that a police officer’s knowing efforts to secure a
false identification by fabricating evidence or otherwise unlawfully influencing
witnesses is not entitled to qualified immunity. See also Devereaux v. Abbey, 263
F.3d 1070, 1075 (9th Cir. 2001) (en banc) (“[W]e are persuaded that there is a
clearly established constitutional due process right not to be subjected to
criminal charges on the basis of false evidence that was deliberately fabricated
by the government.”); Brewster v. Shasta County, 27 F. App’x 908, 912-13 (9th
Cir. 2001) (unpublished) (applying Devereaux where “the detectives used
suggestive procedures with the intent of obtaining an identification of [the
plaintiff], irrespective of whether he was in fact guilty”). Because we now know
without a doubt that Doe’s identification was actually incorrect, we need not
analyze whether, hypothetically, this lineup suffered from a high “likelihood of
misidentification.” See Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (originating
the factors used in Brathwaite analysis as aids in assessing the “likelihood of
misidentification” under a totality of the circumstances review).
Our analysis of Good’s Fourteenth Amendment claim is instead guided by
our decisions in Geter v. Fortenberry, 849 F.2d 1550 (5th Cir. 1988) (Geter I), and
Geter II. Both Geter cases involved a § 1983 action stemming from an
individual’s arrest, prosecution, and conviction for a robbery he did not commit.

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In Geter I, we held that “a police officer cannot avail himself of a qualified
immunity defense if he procures false identification by unlawful means . . . for
such activity violates clearly established constitutional principles.” 849 F.2d at
1559. Nonetheless, we found the plaintiff’s allegations to be too conclusory and
remanded the matter to the district court for further factual development. Id.
at 1559-61. On remand, the plaintiff set forth “a wealth of specifics and
confirming factual details” supporting his claim that the officers had framed
him. Geter II, 882 F.2d at 170. Notwithstanding the fact that we acknowledged
Brathwaite in both Geter I and II, neither opinion expressly required or even
suggested that the district court was obligated to apply Brathwaite’s “suggestive
lineup” suppression test to the plaintiff’s claim under those facts. See Geter I,
849 F.2d at 1559; Geter II, 882 F.2d at 170 n.6. Instead, in Geter II, we
ultimately held that the plaintiff created genuine issues of material fact
sufficient to overcome qualified immunity by presenting competent summary
judgment evidence as to which witnesses were encouraged to give false
identifications and what means were used to encourage the witnesses to wrongly
identify the plaintiff. 882 F.2d at 170.
Applying Geter I and II to the instant case, Good has clearly met his
burden at this early stage. Good alleged that Doe’s identification was tainted by
Curtis’s conduct. That taint persists to this day as Doe still insists on Good’s
guilt even after his exoneration by indisputable forensic evidence. Moreover,
Good has provided “specifics and confirming factual details” regarding the
alleged “unlawful means”: (1) Curtis stated he planned to frame Good for failing
to cooperate; (2) Curtis artificially manipulated Good’s photograph to conform
to the composite sketch and description of Doe’s assailant by darkening the
pictures he took; and (3) Curtis knowingly presented the altered photograph
with the purpose of obtaining a false identification as retaliation for Good’s non-
cooperation regarding a wholly unrelated crime. Good’s articulation of these

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allegations through competent summary judgment evidence is sufficient to
create a factual basis 1 for finding a constitutional violation within Good’s
Fourteenth Amendment § 1983 claim.
Having found a constitutional violation, we turn briefly to the second
prong of qualified immunity. The Supreme Court has repeatedly held that
“government officials performing discretionary functions [enjoy] qualified
immunity, shielding them from civil damages liability as long as their actions
could reasonably have been thought consistent with the rights they are alleged
to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Stated more
pointedly, qualified immunity generally protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). In the instant case, Curtis is alleged to have intentionally secured a false
identification that produced a wrongful conviction in retaliation for a suspect’s
failure to cooperate in an unrelated matter – a Malley “knowing violation of the
law.”
Finally, we turn to Curtis’s novel argument that the trial court’s
subsequent approval of the fabricated lineup absolves him of responsibility for
the unfair trial and wrongful conviction it produced. Curtis does not cite any
case from this circuit involving the so-called “neutral intermediary” doctrine in
the Fourteenth Amendment context. That said, and though we do not attempt
to affirmatively extend the doctrine to this context today, we find our
jurisprudence in this area as applied to other constitutional protections
instructive in determining whether Curtis’s alleged malfeasance effectively
preserved the causal chain. We explained in Hand v. Gary, 838 F.2d 1420, 1428

1
As was the case in Geter II, our articulation of this “factual basis” is only established
here for the purpose of considering Curtis’s motion for summary judgment. “The ultimate
truth will be determined at trial, and we intimate no view as to whose version of the facts
eventually will prevail.” Geter II, 882 F.2d at 171 n.10.

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(5th Cir. 1988), that “[a]n independent intermediary breaks the chain of
causation unless it can be shown that the deliberations of that intermediary
were in some way tainted by the actions of the defendant.” Moreover, “[a]ny
misdirection of the magistrate or the grand jury by omission or commission
perpetuates the taint of the original official behavior.” Id. As such, to the extent
that this doctrine applies to the Fourteenth Amendment, Curtis’s failure to
disclose that he manipulated the lineup or that Doe’s resulting testimony may
have been tainted preserved the causal chain.
Accordingly, the district court correctly denied summary judgment on the
Fourteenth Amendment claim. As such, the appeal as to this claim must be
dismissed. See Lytle v. Bexar County Tex., 560 F.3d 404, 408-09 (5th Cir. 2009)
(where appellate court determines that factual dispute is material, dismissal of
the interlocutory appeal is appropriate), cert. denied, 78 U.S.L.W. 3447 (U.S.
Mar. 22, 2010) (No. 09-851).
B. Good’s Fourth Amendment Claim
Much of Curtis’s Fourth Amendment briefing on appeal has addressed
issues well beyond the scope of our limited interlocutory review. “[W]e have
jurisdiction only to decide whether the district court erred in concluding as a
matter of law that officials are not entitled to qualified immunity on a given set
of facts.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). More
specifically, our review of a denial of summary judgment based on qualified
immunity is limited exclusively to the question of whether “a certain course of
conduct would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Id. at 346; see also Mitchell v. Forsyth, 472 U.S. 511, 528
(1985) (“An appellate court reviewing the denial of the defendant’s claim of
immunity need not consider the correctness of the plaintiff’s version of the facts,
nor even determine whether the plaintiff’s allegations actually state a claim. All
it need determine is a question of law: whether the legal norms allegedly

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violated by the defendant were clearly established at the time of the challenged
actions . . . .”). Accordingly, we cannot and do not reach the question of whether
Good alleges a claim of false arrest or malicious prosecution nor do we address
the various arguments about waiver by judicial admission or timeliness under
Wallace v. Kato, 549 U.S. 384 (2007), in the context of this interlocutory appeal.
Turning to the questions properly before us, we conclude that Curtis is not
entitled to qualified immunity on Good’s Fourth Amendment claims. Contrary
to Curtis’s arguments, “[t]he initiation of criminal charges without probable
cause may set in force events that run afoul of explicit constitutional protection
– the Fourth Amendment if the accused is seized and arrested, for example . . .
and some such claims may be made under 42 U.S.C. § 1983.” Castellano v.
Fragozo, 352 F.3d 939, 953-54 (5th Cir. 2003) (en banc). “As applied to the
qualified immunity inquiry, the plaintiff must show that the officers could not
have reasonably believed that they had probable cause to arrest the plaintiff for
any crime.” O’Dwyer v. Nelson, 310 F. App’x 741, 745 (5th Cir. 2009) (citing
Devenpeck v. Alford, 543 U.S. 146 (2004)). Contrary to Curtis’s assertions, Good
was not merely subjected to “[a]n additional lock on the door of a jail cell . . . .”
Instead, the statement of undisputed summary judgment facts makes clear that
Good was arrested on two different warrants on two different dates. Good was
first arrested on June 15, 1983, on a bond forfeiture on a prior DWI charge.
During the June 15 detention, Good was interrogated by Curtis and the photos
at the heart of this case were taken. On June 18, 1983, Good was arrested for
the rape and burglary of Doe on a warrant issued upon Curtis’s probable cause
affidavit. This second arrest forms the foundation of Good’s Fourth Amendment
claim. At the time he swore out the probable cause affidavit for the second
arrest, Curtis had no evidence before him suggesting Good was the perpetrator
other than the false identification he procured from Doe. Accordingly, Curtis
could not have reasonably believed that he had probable cause to arrest Good,

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and the district court did not err in determining that the genuine issues of fact
were material such that he is not entitled to summary judgment on qualified
immunity in the instant case.2
IV. CONCLUSION
In keeping with Geter I and II, we conclude that knowing efforts to secure
a false identification by fabricating evidence or otherwise unlawfully influencing
witnesses constitutes a violation of the due process rights secured by the
Fourteenth Amendment. A plaintiff need not undertake the impossible task of
satisfying the Brathwaite test where an officer’s intentional conduct was
designed to artificially produce precisely the sort of witness certainty that
otherwise justifies the admission of suggestive lineups and the criminal
defendant has been exonerated in the meantime. Moreover, we find that any
reasonable official would know that framing an individual for a crime they did
not commit by securing such an identification represents a constitutional
violation. Accordingly, the appeal must be dismissed on his Fourteenth
Amendment claim.
With respect to the Fourth Amendment, Curtis’s efforts to secure Good’s
arrest notwithstanding the fact that Curtis affirmatively knew he manufactured
probable cause constituted a clearly established violation of Good’s Fourth
Amendment rights at the time of the arrest such that the appeal on this claim
must also be dismissed.
For the foregoing reasons, we DISMISS and REMAND.

2
Again, we note that we do not reach the question of whether Good has stated a claim
upon which relief may be granted if he has, as Curtis alleges, conceded his false arrest claim.
Given our narrow jurisdiction, we merely address the dual questions of whether Curtis’s
conduct, as alleged, constituted a violation of Good’s Fourth Amendment rights and whether
a reasonable official would have known that such conduct was prohibited.

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