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.
2
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.
4
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.”
5
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
6
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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