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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Burge v. Parish of St. Tammany
Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-08-25
Citations: 187 F.3d 452
Copy CitationsCombined Opinion