Rodriguez v. Neeley

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50183

RICARDO RODRIGUEZ, Individually
and As Next Friend of
Xavier Valenzuela, ET AL
Plaintiffs

BRIDGET VALENZUELA, Individually
and As Next Friend of
Xavier Valenzuela; ARGELIA PEREZ,
Individually and On Behalf of Others
Similarly Situated; PALMIRA GARCIA;
XAVIER VALENZUELA
Plaintiffs-Appellees

versus

MIKE NEELEY, Director, Ector County
Adult Probation Office, ET AL
Defendants

MIKE NEELEY, Director, Ector County
Adult Probation Office
Defendant-Appellant

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

March 5, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

A state employee of a county probation department appeals

denial of the district court’s partial rejection of his defense of

qualified immunity to claims that plaintiffs were
unconstitutionally detained in the course of a sting operation

carried out with federal immigration officials and calculated to

gather felons illegally in the country.

I

Mike Neeley is the director of the Ector County Adult

Community Supervision and Corrections Department. In the early

fall of 1995, INS Agent Villareal asked Neeley for a list of all

foreign-born probationers currently under its supervision. Agent

Villareal wanted to investigate their alien status and criminal

convictions. Neeley furnished a list of 200 foreign-born

probationers.

In late fall 1995, INS Agents Villareal and Woodward met with

Neeley to discuss 42 of the listed probationers. INS agents wanted

to question them at their homes, accompanied by Border Patrol

agents and CSCD officers. Neeley declined, fearful of the dangers

of such an effort. It is undisputed that Neeley and CSCD officers

do not make arrests and are not trained to do so. Neeley

volunteered to ask the targeted probationers to report to the CSCD

office at a specified date and time with the understanding that the

state would take no action against any who did not report.

Neeley then drafted a letter in English, and Agent Villareal

translated the draft into Spanish. The letters were written on

Ector County letterhead, signed by Neeley, and on November 30,

1995, mailed to the probationers advising them to report to the

CSCD on December 13, 1995, to discuss the terms of their probation.

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 On December 13, 1995, at approximately 10:00 a.m., 26 of the

42 targeted probationers arrived at the CSCD. Plainclothes INS

agents and a sheriff’s deputy positioned themselves at the doors.

Four persons, three adults and a child, who were not probationers

accompanied some of the targeted probationers. These bystanders,

Bridget Valenzuela, her four-year old son Xavier, Argelia Perez,

and Palmira Garcia, were citizens of the United States.

After the doors were closed, Valenzuela sought permission to

leave, asserting that she and her son were citizens and that she

wished to contact an attorney for her husband. INS agents did not

immediately accept her explanation and none of the four were

allowed to leave immediately. Rather, according to Valenzuela, it

took approximately an hour for the INS to take the proper persons

into custody, accept their claimed identity, and allow them to

leave.

The four bystanders sued Neeley for money damages under 42

U.S.C. § 1983, asserting that by not allowing them to leave

immediately, defendants deprived them of their Fourth Amendment

rights. The district court granted Neeley’s motion for summary

judgment, dismissing the claims to money damages, finding Neeley

was entitled to qualified immunity. The district court later

modified its ruling, denying Neeley qualified immunity to the

conspiracy claim, but adhering to its earlier ruling in all other

respects. The district court was apparently persuaded that whether

the detentions should be attributed to Neeley as a member of the

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claimed conspiracy presented genuine issues of material fact, that

is, whether Neeley’s actions in coordinating with other county

officials, the Border Patrol, and the INS caused the plaintiffs to

be illegally detained.

Neeley argues to this court that plaintiffs failed to state a

claim, and in any event the district court erred in denying summary

judgment.

II

A denial of qualified immunity is immediately appealable under

the collateral order doctrine, when based on an issue of law. See

Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996) (citing Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985)). After giving plaintiffs the

benefits of all disputed questions of fact, determining from the

summary judgment record whether the bystanders’ claim under § 1983

against Neeley may proceed is a question of law. See Siegert v.

Gilley, 500 U.S. 226, 232 (1991). We have jurisdiction over this

interlocutory appeal.

III

The bystanders allege, under § 1983, that Neeley conspired

with the other defendants to violate their Fourth Amendment rights

by illegally detaining them at the CSCD. The bystanders argue that

Neeley’s conduct in coordinating the “meeting” at the CSCD office

was objectively unreasonable in light of the bystanders’ clearly

established Fourth Amendment right to be free from an unreasonable

seizure.

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 Neeley does not dispute that the bystanders were detained and

concedes that in the procedural posture of this case we should

assume the detentions violated the Fourth Amendment. It is

undisputed that Neeley cooperated with the INS by (1) providing

them the list of foreign-born probationers; (2) drafting, signing,

and mailing the letters to the targeted probationers; and (3)

allowing the INS to use the probation office for the operation.

Neeley argues that by the summary judgment evidence, viewed in the

light most favorable to the bystanders, he did no more; that his

acts will not support a finding that he was a member of any

conspiracy.

The district court found that the affirmative acts Neeley

took, such as sending of letters to probationers and permitting the

INS to use the CSCD office, were objectively reasonable and barred

by Neeley’s qualified immunity. According to the district court:

“The use of the probation system to require resident alien

probationers to appear at a county facility for INS purposes and

the letters circulated to probationers were not actions that

injured the bystander citizens.” As we observed, the district

court also concluded that there was no evidence that Neeley or

other CSCD officials directly supervised or participated in the

detention or questioning of the bystanders. We have in other

contexts observed that, “[o]nly if [the] state action is determined

not to be objectively reasonable should [this court] look to

whether the officer’s actions were taken pursuant to a conspiracy.”

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See Pfannstiel v. City of Marion, 918 F.2d 1187 (5th Cir. 1990),

abrogated on other grounds by Martin v. Thomas, 973 F.2d 449 (5th

Cir. 1992).

Plaintiffs persist that the INS detention of the bystanders is

attributable to Neeley as a member of a conspiracy. Plaintiffs

must develop facts from which a trier of fact could reasonably

conclude that Neeley agreed with others to commit an illegal act

and that a deprivation of constitutional rights occurred. See

Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 513

U.S. 868 (1994). A conclusory allegation of conspiracy is

insufficient. See McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th

Cir. 1989), cert. denied, 493 U.S. 1083 (1990). Specifically,

plaintiffs must identify an illegal objective of the agreement

among INS agents and Neeley. Giving plaintiffs all inferences from

the summary judgment record, a trier of fact could not reasonably

conclude that there was a scheme to deprive the bystanders of their

constitutional rights by detaining them at the CSCD office. The

target of the coordinated plan of Neeley and the other defendants

was aliens with felony convictions, not the bystanders. No trier

of fact could reasonably conclude from the summary judgment record

that Neeley conspired to violate the bystanders’ constitutional

rights.

Relatedly, plaintiffs appear to contend that the conspiracy

may have been to achieve lawful objectives but by unlawful means.

Yet the detentions of the bystanders complained of were neither

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necessary nor anticipated, at least to a level of certainty to make

the detentions a part of the “conspiracy” or to the meet the

certainty requirement of qualified immunity, that “a reasonable

official would understand that what he is doing violates that

right.” See Anderson v. Creighton, 483 U.S. 635, 639-640 (1987).

We are persuaded that the district court erred in denying Neeley’s

motion for summary judgment.

REVERSED.

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