The opinion
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-11071
DWAYNE CASTILLE, ET AL.,
Plaintiffs,
ROBERT DOYLE PALMER,
Plaintiff-Appellee,
VERSUS
CITY OF DALLAS and
WILLIAM RATHBURN, Chief,
Defendants-Appellants.
Appeal from the United States District Court for
the Northern District of Texas
(3:94-CV-2010R)
August 9, 1996
Before POLITZ, Chief Judge, HILL,* and DeMOSS, Circuit Judges.
PER CURIAM:**
Appellants, Chief William Rathburn and the City of Dallas,
Texas, appeal the district court’s denial of their motion for
*
Circuit Judge of the Eleventh Circuit, sitting by
designation.
**
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
summary judgment on the basis of qualified immunity. Finding that
we have no appellate jurisdiction over this interlocutory appeal,
we DISMISS.
BACKGROUND
Plaintiff-Appellee, Robert Doyle Palmer (“Palmer”), is an
Anglo male who entered service with the Dallas, Texas Police
Department on June 13, 1985. Dwayne Castille (“Castille”) is an
African-American male who entered service with the Dallas, Texas
Police Department on November 18, 1988.
On December 14, 1990, Palmer and Castille, while performing
routine patrol duties, responded to a call from the CityPlace
building at 2711 North Haskell Avenue. Upon arriving at the scene,
Palmer and Castille found three CityPlace security guards standing
near a Hispanic male, later identified as Alan Moncado (“Moncado”),
who was lying face down in the foliage on CityPlace property.
Palmer used his baton to strike Moncado on the sole of Moncado’s
shoe, and ordered him to get up. Moncado struggled with the
officers but he was eventually subdued, searched, and handcuffed.
According to Palmer and Castille, Moncado convinced them that
he was not a danger to himself, and that he would lose his job if
he was arrested. Palmer and Castille notified that police
dispatcher that they were on a public service call and they then
2
released Moncado in West Dallas, at a location which they allege
Moncado identified as being near his home. In fact, Moncado’s home
address was at another location in East Dallas near the CityPlace
property.
On December 27, 1990, the Dallas Police Department received a
complaint alleging that Palmer and Castille had used excessive and
unnecessary force in arresting Moncado. The three CityPlace
security guards who were present when Moncado was arrested, as well
as a fourth security guard who witnessed the arrest while
monitoring security video cameras, reported in separate sworn
affidavits that Palmer and Castille had used excessive force in
arresting Moncado.
The Dallas Police Department Internal Affairs Division
investigated the complaint and concluded, inter alia, that Palmer
and Castille had used excessive force and had improperly released
Moncado. Palmer and Castille presented their cases in separate
“pre-disciplinary hearings” which were held before Police Chief
William Rathburn in April 1991 and August 1991. Subsequent to the
hearings, Rathburn discharged both Palmer and Castille from the
Dallas Police Department.
On October 10, 1991, Palmer and Castille appealed their
discharges to the City of Dallas City Manager’s Office. On October
28, 1991, Assistant City Manager Teodoro Benavides upheld the
discharge of both Palmer and Castille. Palmer and Castille then
appealed their terminations to the City of Dallas Civil Service
3
Trial Board (“Trial Board”). Different Trial Boards were convened
for each appeal and no individual served on both Trial Boards. On
January 29, 1992, Castille’s Trial Board reinstated him. On April
15, 1992, Palmer’s Trial Board sustained his termination.
Palmer brought suit in state court alleging primarily that his
“Trial Board hearing was tainted and biased to ensure that
Rathburn’s termination of [him] would be upheld.” He alleged
various state and federal causes of action including, inter alia,
alleged violations of his due process rights under the Fourteenth
Amendment to the United States Constitution and the Article 1, § 19
of the Texas Constitution; his equal protection rights under the
Fifth Amendment to the United States Constitution; his rights to
free speech under the First Amendment to the United States
Constitution; and race discrimination and conspiracy under 42
U.S.C. § 1985.
Defendants removed the case to federal district court on the
basis of federal question jurisdiction, 28 U.S.C. § 1331, and filed
a motion for summary judgment alleging that Rathburn, as a public
official, enjoys qualified immunity. The district court granted
Defendants’ motion for summary judgment on the basis of qualified
immunity as to Palmer’s First Amendment claim, as well as to at
least one of his state-law claims, but denied Defendants’ motion
for summary judgment on the basis of qualified immunity as to
Palmer’s claims for procedural and substantive due process, equal
protection, and conspiracy under § 1985.
4
Defendants now file an interlocutory appeal to our Court
arguing that the district court erred in denying Rathburn qualified
immunity as to Palmer’s claims for procedural and substantive due
process, equal protection, and conspiracy under § 1985.
DISCUSSION
As set forth in Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738
(1982), the qualified immunity defense shields government agents
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known. See Behrens v.
Pelletier, 116 S. Ct. 834, 838 (1996). “Appeals from district
court orders denying summary judgment on the basis of qualified
immunity are immediately appealable under the collateral order
doctrine, when based on an issue of law.”1 Cantu v. Rocha, 77 F.3d
795, 801 (1996); Mitchell v. Forsyth, 105 S. Ct. 2806, 2816
(1985). However, the Supreme Court held in Johnson v. Jones, 115
S. Ct. 2151 (1995), that summary judgment orders in qualified
immunity cases which determine only a question of “evidence
sufficiency,” i.e., which facts a party may, or may not, be able to
1
“Under the collateral order doctrine, a small class of
interlocutory orders that (1) conclusively determine, (2) important
issues, which are separate from the merits of the action, and (3)
which would be effectively unreviewable on appeal from a final
judgment are deemed ‘final’ for purposes of appeal.” Cantu, 77
F.3d at 802, citing Puerto Rico Aqueduct & Sewer Authority v.
Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993).
5
prove at trial, are not immediately appealable and must await final
judgment. Johnson, 115 S. Ct. at 2156; Cantu, 77 F.3d 802; see
also Nerren v. Livingston Police Dept., 86 F.3d 469, 472 (1996)
(holding that we do not have appellate jurisdiction over
interlocutory appeals taken in qualified immunity cases when “what
is at issue in the sufficiency determination is nothing more than
whether the evidence could support a finding that particular
conduct occurred”).
Accordingly, before we can review the merits of the district
court’s denial of Defendants’ motion for summary judgment based
upon qualified immunity, we must first determine whether the
district court’s order is immediately appealable. Nerren, 86 F.3d
at 471. We find that it is not.
The parties have not stipulated to any facts and the district
court did not assume any facts in making its determinations. Many
of the relevant facts underlying Palmer’s causes of actions are
disputed and it is evident from the district court’s 16-page order
that the district court denied summary judgment because the
evidence is not sufficient to establish the facts underlying both
Palmer’s claims, and Rathburn’s qualified immunity defense.2
2
The express holding of the district court in its
“Memorandum Opinion and Order,” as to each of the issues, is as
follows:
Procedural Due Process: “It is for the jury, not
this Court, to evaluate this evidence and to decide
whether the process afforded to Palmer was
6
For the reasons stated in Johnson v. Jones, 115 S. Ct. 2151
(1995), Behrens v. Pelletier, 116 S. Ct. 834, 838 (1996), and their
progeny in our Circuit, we dismiss this appeal for lack appellate
jurisdiction.3
CONCLUSION
The appeal of the City of Dallas, Texas, and Chief William
Rathburn is dismissed for lack of appellate jurisdiction.
DISMISSED.
meaningful at some point. This Court finds that
Palmer has raised an issue of fact as to whether he
was afforded due process by Defendants.”
Substantive Due Process and Equal Protection:
“This Court finds that a reasonable jury, drawing
all inferences in favor of Palmer could find that
Rathburn, and/or the City of Dallas exerted
influence on the trial board on the basis of the
fact that Palmer is a white man.
....
The inferences to be drawn from the evidence
presented by Palmer on this point must be left to a
jury before evaluation.”
Conspiracy: “The Defendants also allege that
Palmer failed on the second prong of the claim by
failing to show that his right to equal protection
was violated. This Court has already disposed of
that contention in this Order. This Court finds
that genuine issues of fact remain on each of the
four elements of § 1985(3).”
3
We express no opinion as to whether qualified immunity
should, or should not, be ultimately granted to Rathburn.
7