### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40288

RYAN CROSTLEY; SHANNON FINLEY Plaintiffs–Appellants
v. LAMAR COUNTY, TEXAS; CHRIS BROOKS; STACY MCNEAL; TIMOTHY KEELE Defendants–Appellees

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

Before REAVLEY, PRADO, and ELROD, Circuit Judges. EDWARD C. PRADO, Circuit Judge: Plaintiff–Appellants Ryan Cros t ley and S hannon Finley (“Appellants”)

were arres t e d for the murder of Brandon McClelland after a n investigation conducted by, a mong others, Defendant–Appellees Stacy McNeal an d C hris Brooks (“Appellees”). Eventually, all c harges against Appellants w ere dropped, and they filed this civil rights action on January 26, 2010, seeking damages for injury suffered as a r esult of their nine- m o n th imprisonment. In addition to McNeal and Brooks, the o riginal complaint n a m ed Lamar County as a defendant. The district court dismissed all claims against Lamar County with
p r ej u d i c e on July 21, 2 010. After the deadline for joining new parties to the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

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litigation expired, Appellants filed a motion for leave to amend their c o mplaint to add D epartment o f Public S afety (DPS) Officer T imothy Keele a s a defendant f o r t h e f irst time, and t o a dd Lamar C ounty as a defendant for a second tim e . The district court denied this motion. In S eptember 2 011 and February 2012 respec tively, the district court granted summary judgment for McNeal and Brooks on the basis of their qualified immunity. Appellants appeal the denial of their m o t i on for leave to amend to add Lamar C ounty and Officer Keele as defendants, as well as the orders granting
summary judgment for McNeal and B r o oks. W e reverse the dist r i c t c o u rt’s d enial of Appellants’ m otion for l eave to amend as it relates to Lamar County, but affirm the denial as it pertains to Keele. We affirm the district court’s orders granting summary judgment for Appellees o n Appellants’ § 1983 f alse arrest a n d state malicious prosecution claims.

I. FACTUAL AND PROCEDURAL BACKGROUND 1 On September 15, 2008, Shannon Finley and Bra n d o n McClelland installed sheet rock together for a m an in Paris, Texas. After work, they picked
up their friend Ryan Crostley, bought beer, and drove to another friend’s house

n e arby to b egin drinking. Once there, a ll three drank beer and s m o k e d marijuana. At s ome point i n the evening, McClelland an d F i nley also t ook Xanax, a central nervous s ystem depressant. Because they could not purchase alcohol in Texas after midnight, at some t ime in the early morning of September 16, all three left and drove in Finley’s Dodge Dakota to Oklahoma to purchase more beer, taking Highway 271.

1 While a num ber of the bas ic f acts are uncontes ted , som e rem ain in d is p u t e. Thos e f acts relevant to the ap peal of the grant of s um m ary jud gm ent are recounted in the light m os t f avorable to Ap p ellants

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On their return trip, the group drove slowly and only on back roads because the transmission i n Finley’s truck was malfunctioning. While they were traveling on one o f these country r oads, McClelland and Crostley began arguing with Finley about whether he was too intoxicated to drive, a nd tried t o convince him that either McClelland or Crostley should d r ive instead. When Finley refused, McClelland continued to argue with him. Finle y e v e n tually told Mc C lelland that if he preferred not to ride with him, he could get out of the tr u c k

. M cClelland then exited the truck and Finley a nd Crostley drove away. After about a mile, Crostley suggested they g o b a c k and retrieve McClelland. Finley a greed and turned the truck around. When they f ou n d M c C l elland walking along the s ide of the road on which they had left him, he again refused to ride with Fin ley. M cClelland took two beers f rom the truck and continued walking. At some point that night, C rostley vomited in the f ront seat and out t h e f r o n t passenger w indow down the side of the truck. Crostley and Finley ultimately returned to Finl e y’s apartment w ithout further interaction with McClelland. Sometime ar o u n d 4 :20 a.m., McClelland, now w alking along FM 2 648, was struck and killed b y a semi-trailer truck driven by Gary Clark. Clark felt a bump f rom the right side of his trailer tires, but otherwise had n o indication that he had hit anything. Clark continued down the road for about five miles before stopping to see if he had gotten a flat tire. Finding that he had n ot, he continued to his destination in Idabel, Oklahoma. Around the time o f the a ccident, Brandon Smith and Clint Frachiseur, two friends driving on FM 2648 in separate cars, p assed an eighteen-wheeler coming the opposite direction that was allegedly driving over the speed limit and partly

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over the center dividing line. Moments after passing the truck, they came upon McClelland’s body in the road. They then pulled over and called 911. Smith later told authorities that McClelland’s body was still emitting steam when they arrived. Two other witnesses also attested to passing a truck similar to Clark’s shortly before passing McClelland’s body in the road. DPS Officer Keele, D P S S e r ge a nt J a m es Kain, Lamar County Investigator Joe Tuttle, and Lamar County Sheriff’s D eputy T o m Barr were all dispatched to the s c e n e . Tuttle recorded the witnesses’ statements. DPS Sergeant Chris Brooks arrived at the accident site sometime close t o 5 : 0 0 a.m., after the witnesses h ad left. The officers at the scene noted that McClelland, who weighed 284 po u n d s a t the time o f his death, had been severely injured by the impact. He suffered a complete fracture of his pelvis, blunt head trauma s o serious that brain matter was found on the h i gh w a y , a nd lacerations o f his legs approximately thirteen inches above the heel. N o debris from any vehicle was found at the accident site. Later in the morning of September 16, Ke ele met with members of McClelland’s family to deliver the news of h i s d e a th. McClelland’s mother informed Keele t h at McClelland h ad been with Crostley and Finley the night before, and gave h im their telephone numbers. Keele called Crostley and Finley and asked them to come to the P a ris DPS office. When they arrived, Keele obtained a written statement from Finley while another officer simultaneously obtained a statement from Crostley. Both statements contained accounts of the argument between Finley and his passengers, and neith e r s u g gested that C r ostley and Finley s aw McClelland at any point after they drove away the second time. After Crostley and Finley left, Keele called Finley again to ask him

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to bring his truck into the DPS off i c e , w h i ch Finley did. At s ome point before Finley b rought in his t ruck, Finley and Crostley had cleaned the vomit out of the

area in front of the front passenger seat, but it is unclear whether this occurred before or after they were first contacted by DPS personnel. Keele and Kain examined the truck a nd noticed no significant d a m a g e t o the truck’s body. Photographs of the t r u c k indicate there was n o observable damage to the bumper, hood, o r windshield. Keele noted that a part of the truck l ooked like it had been w ashed, but not v ery well. The r e w a s g r a s s, rust, and dirt on the truck’s undercarriage. The truck was released back to Finley after the officers had finished their examination. Th e n e xt eve nin g , o nS e p t e mb er 1 7 , C ro s tl ey and Finley were visited by two acquaintances, Trey Laster a nd Josh Newkirk. L a s t e r h ad been arrested earlier in 2008 for injuring Finley in a fight. Wh e n they arrived at Finley’s apartment, Laster and N ewkirk made statements suggesting they were seeking vengeance for M cClelland’s death and wished to harm Finle y a n d C rostley. Crostley, as well a s an e lderly neighbor who could hear the argument, e ach made 911 calls to report that Laster a nd Newkirk were trying to kill Finley. T h e next day, on S e ptember 18, Keele interviewed Lisa Deninfield , t h e mother of Finley’s estranged wife Ashley Finley, who s tated that her daughter had information about McClel l a nd’s death. Keele then interviewed Ashley Finley, who said that she had spoken with N ewkirk, who said that he had talked to Crostley, and that Crostley had told him he had been in Finley’s truck when Finley r an over McClelland a nd killed him. Ashley also stated that she had been told Finley had washed his truck at a c ar wash i n P owderly , T exas, after the incident. That afternoon, either Kain or Keele r eviewed videotape from the car

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wash Ashley Finley identified, but found no indication i n the footage that the car wash had been visited by a Dodge Dakota. The same day, Billy P illars, a Paris police officer on p atrol at the time, was flagged down by Laster, who said that he had information about the e v e n t s of the night o f September 15–16. Laster stated that Finley had t o l d h i m about fighting with M cClelland a nd that Fi nley had admitted to running McClelland

over. Laster claimed that the vehicle in question was a Toyota Tundra. Pillars provided an incident report to Brooks, who h ad been b riefed on the investigation that day by Keele. That evening, on September 18, Ranger Stacy McNeal a lso began working

on th e investigation. After he and Brooks were briefed, they went to Crostley’s residence and asked h i m to come into the P aris p o li c e s t a tion to give another interview. Crostley agreed, and gave an account consistent with his September 16th statement. Keele prepared an affidavit for a s earch warrant to allow the investigators t o search Finley’s truck, wh ich was signed by a magistrate later that evening. On September 20, McNeal and Brooks executed the search warrant after they l ocated Finley’s t ruck in a field on Finley’s father’s property. They noticed that the carpet on the floorboard was wet and that water was draining f rom the drain plugs. McNeal and Brooks had the v ehicle towed to a garage where they put it on a lift to inspect the undercarriage. Using a Hemastix test, they identified two areas on the truck where the presence of human blood could not be ruled out (the areas tested “presumptively positive” for human blood). 2 The

2 A H em as tix tes t is us ed to rule out, but not to verif y , t h e p r e s ence of hum an blood

. As a res ul t , it generates many “f als e p os itives ”—tes t res ults that ind icate the p res ence of hum an blood cannot be d ef initively elim inated

. See H iron Poon et al. , The U se of Hem astix® a n d t h e Subsequent La ck of DN A Recov ery Usi ng the P rom ega DN

A IQ TM System , 54 J

. Forens ic Scis

. 1278, 1278 ( 2009)

. S u ch res ults are ap p arently es p ecially com mon w hen the 6 Case: 12-40288 Document: 00512256419 Page: 6 Date Filed: 05/29/2013No. 12-40288

samples were se n t t o the DPS Crime Lab three days later for a conclusive determination of whether human blood was present. While they were still at Finley’s f ather’s residence, McNeal and Brooks interviewed Finley’s f

ather, who stated that he had m oved Finley’s truck to the field because Finley had been receiving threats r elated t o M cClelland’s death, and Finley’s father w as c oncerned that if people saw his truck at the residence, they w ould believe Finl e y w a s also there. Finley’s father said that Finley had left Paris t o stay with friends in Kansas because he f eare d f or h is safety, but that he would willingly return if the authorities needed to t alk t o him. 3 Finley’s father also provided Finley’s contact information to Tuttle. On September 2 2 , M cNeal and Brooks interviewed Laster at the Paris Police Department. Laster said that Newkirk had told him that Crostley and Finley had dragged McClelland unde r F i n l e y ’s truck and killed him, and that Crostley had said he did not remember very much about the events o f that night. Laster a lso stated that he and Newkirk had gone to Finley’s a p a r tment on September 17, w h e r e Laster spoke to Finley while Newkirk spoke to C rostley. He said Finley had t old him that Finley and Crostley dragged McClelland under t h e t r uck for thirty to forty feet and that McClelland’s body was “messy,” but also that they had not meant to kill him. Laster stated that Finley h ad t old him he washed his t ruck after the i ncident. D u r i n g the interview, the topic of Laster’s January 2008 arrest for assaulting Finley was discussed. Brooks and M c N eal a pparently laughed when Laster mentioned havi n g kn o c k e d o u t Fi nl e y’ s teeth.

tes t is ad m inis tered in the p res ence of othe r o r g a n ic m aterial. Id. By w ay of com p aris on, w hen s im ilar tes ts w ere later p erf orm ed on G ary Clark ’s truck , over a hund red d if f erent areas of the trucktes ted “p res um ptively p os itive” f or the p res ence of blood

.
3 Cros tley later conf

irm ed that he and Finley w ere receiving threats f rom unid entif

ied
m em bers of Paris ’s black com m unity, w ho believed M cClelland ’s d eath to have been racially
m otivated , bef

ore Finley lef

t f or K ans as . 7 Case: 12-40288 Document: 00512256419 Page: 7 Date Filed: 05/29/2013No. 12-40288

On Septembe r 2 3 , McNeal called Finley’s father regarding Finley’s whereabouts. Finley’s father told him the name of th e family friend in Kansas with whom Finley was staying, and that while he could n ot remember Finley’s telephone number, it had been provided to Tuttle. 4 McNeal called T u t t l e and successfully obtained Finley’s phone number. The following d ay, Brooks and M cNeal p repared affidavits, sworn by Brooks, for u se in obtaining arrest warrants for Finle y a n d C r ostley, charging them both with murder a nd evidence tampering. The affidavits corresponding to each of the four charges were identical, and gave a n account of the events of the night of S e p t e m b er 15 that largely tracked what Laster had stated in his interview tw o d a y s before. The affidavits claimed that in his September 16th intervie w, “Finley advised that he last saw M cClelland walking east on FM 2648.” They stated that Ashley Finley had told Keele that “Crostley stated that Finley began to ‘bump’ M cClelland with the front bum p er of the truck until McClelland fell down” and then Finley ran him over, a statement Ashley Finley never actually made. The affidavits also included the statement:

On September 18, 2008 affiant traced Shannon Finley to an area outside of Wi chita, Kansas. Affiant b eliefs [sic] after reviewing reports and s tatements and speaking with all officers involved in this investigation that Shannon Finley is attempting to elude o fficers and conceal evidence t hat maybe [sic] on and or under Finley’s vehicle. Regarding the samples from Finley’s truck that were sent to the DPS C rime Lab the day before but had n ot yet been processed, the affidavits s ay, “Upon viewing the undercarriage o f the t ruck two separate p arts of the truck contained human blood.” The affidavits were presented to a justice of the peace, who signed and

4 F i n l e y had d rop p ed his p hone in w ater, and was given his m other’s p hone a s a rep lacem ent. Finley’s f ather typ ically us ed a sp eed d ial f unction to call the p hone, and s o d id not have its num ber mem orized

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issued the desired arrest warrants. Crostley and Finley were arrested shortly thereafter. McNeal and Brooks continued to collect evidence and conduct interviews. In i n terviews, Finley and Crostley each repeated their account of the relevant events, which were consistent with their earlier statements. On September 29, McNeal spoke to residents of the apartment complex where Finley’s apartment

was located and learned of the t h r e a t s Laster and N ewkirk h ad made against Crostley and F i n l e y on the night of September 17. McNeal and Brooks interviewed employe e s at Wesco T rucking, the c o mpany that employed Gary Clark, about a turquoise “truck tractor” that Wesco personnel thought m ay have

run over McClelland. It was determined that this truck had b een out o f service

on the n i ght M cClelland died. M cNeal and B rooks executed a second search warrant for Finley’s t ruck, f i nding a fiber t h a t u l t imately proved to be plant matter, and n oting a “water line” on the t ruck’s door. On October 21, Keele called the m edical examiner, gave the examiner the account Laster and Newkirk had provided, and allegedly asked the examiner to change the autopsy report so that McClelland’s death was listed as a homicide, rather than an accident. On December 11, a Lamar C ounty Grand Jury returned an indictment for Finley on counts of murder and evidence ta m p e ring, and an indictment for Crostley on counts of murder a nd retaliation. They remained incarcerated while the investigation continued and the parties prepared for trial. I n March 2009, McNeal read the s tatements given by Smith, Fra c h i s eur, and the other two witnesses, and int e rv i e w e d them for the first time. In April 2009, defense investigators working on b ehalf of Crostley and Finley found in f o r mation that led them to Gary Clark. On April 1 9, Gary C lark gave a sworn, videorecorded statement detailing the e vents of September 1 6, 2008, in which he s a i d it was likely he had run over McClelland. McNeal was informed of Clark’s statement

on Ap r il 22, a nd Clark w as then interviewed by the p r osecution. McNeal

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interviewed Newkirk a g a i n , who now said that Crostley never made any

s t atements to him about the way McClelland was killed, effective ly r e c a nti n g th e accusations that had led investigators to a rrest F i n l e y and Crostley. When McNeal interviewed Laster again, Laster stated that he could not remember the conversations he had with Finley because he had been drinking heavily on the day he spoke with him. On June 4, all charges against Crostley and Finley were dropped. Crost l e y a n d Finley filed the present suit on January 2 6, 2010, nearly eight months before the t wo-year anniversary of the i r a r r e st. In the original complaint, they named Lamar County, Brooks, M cNeal, and Special Prosecutor Toby Shook as defendants. Invokin g 4 2 U.S.C. § 1983, they sought damages stemming from alleged due process violations (in later p l e a d i n gs, Fourth Amendment fa l s e arrest), false imprisonment, malicious prosecution, and d e f a m a t i o n. On July 21, after each Appellee had filed a 12(b)(6) motion to dismiss, the district court granted leave for Appellants to amend their c o mplaint to remedy pleading d eficiencies with r espect t o claims against B rooks, McNeal, and S hook, but dismissed all claims against Lamar County w ith prejudice and

w i t h o u t leave to amend. On August 17, 2010, Appellants filed their first amended complaint, naming the same four de f e n d a n t s in the caption of the complaint, but prov i d i n g s pecific arguments only with respect to Brooks, McNeal, and S hook (and n ot Lamar County). Appellants eventually settled with Shook. Brooks a nd M cNeal e ach filed motions for summary judgment, a sserting qualified immunity. Aft e r the deadline t o join parties to the litigation had passed, Appellants claimed they had discovered new information about Lamar County’s investigation proc e d u res and Keele’s r o le in the case, and so filed a motion for leave to amend so t h a t L amar County could again b e added as a defendant, and Keele could be added as a defendant for the first time.

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On October 12, the court denied Appellants’ motion for l eave to add Lamar County and Keele as defendants, deciding, among other things , that amendment would be futile because the s tatute of limitations had elapsed. The district court also granted summary judgment for Brooks and McNeal, finding they were both entitled to qualified immunity with respect to the federal false arrest and state malicious p r osec u t i o n c l a ims, the only c l aims still at issue. On November 17, 2011, Appellants filed a motion for reconsideration of th eir motion for l e a ve to amend, which was also denied. Appellants now appeal the grant o f summary judgment on the false arrest claim in favor of Brooks and McNeal, the grant o f s ummary j u d g m ent on the malicious prosecution claim in favor of Brooks, and the d enial of their motion for leave to amend. II. DISCUSSION A. Leave to Amend i. The District Court’s Orders On July 21, 2010, as part of an order adjudicating a motion t o dismiss filed

on behalf of both Lamar C ounty and Brooks, the district court dismissed all § 1983 c laims against Lamar County with p r ejudice. The court determined that Appellants’ complaint had “fail[ed] to sufficiently allege the official p olicy or custom that i n f

licted their purported deprivation of constitutional rights,” as required for a showing of municipa l l iability under § 1983. The court did not grant leave to amend the complaint w ith respect to the claims against the County. Nor, importantly, did the district court d e clare the order an appealable final judgment under Federal Rule of Civil Procedure 54(b). On June 3, 2 011, Appellants filed a m otion f or leave to amend pursuant t o R u l e 15(a)(2). They argued that since the o rder di smissing their claims against Lamar County issued, they had t aken numerous d e positions, which had provided new information tending to show that “the Lamar County policies and

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procedures i n place in September[] 2 0 08 were wholly inadequate to handle an investigation like the one in this case.” Appellants therefore wished to amend their complaint to bring Lamar County back into the litigation as a defendant. They also claimed that f acts relating to Ke e le’s involvement had only come to light during his deposition, which occurred after the deadline to add parties to the litigation, and that they should now be allowed t o add Keele as a defendant. On October 12, 2011, the district court d e nied Appellants’ motion for leave to amend. Because the motion had been filed after the deadline for adding new parties to the suit, the district court first reviewed the motion using Rule 16(b), which “governs amendment of pleadings after a scheduling order deadline has expired.” S&W Enters., L.L.C. v. Southtrust Bank ofAla., NA , 315 F.3d 5 33, 536 (5th C ir. 2 0 0 3 ) ; see also F ed. R. Civ. P. 16(b)(4). The court d etermined that because Ap p e l lants had shown good cause to modify the scheduling order, it would apply “the more liberal standard o f Rule 15(a)” to the decision to grant or deny leave. The court n oted that while Rule 15(a) recommends that the c ourt freely give leave to a mend when justice so requires, leave may nonetheless be denied for various reasons, including “f utility o f amendment.” See Fed. R. Civ. P. 15(a)(2). According to the court, unless exceptions created b y estoppel, equitable tolling, or r elation back doctrine applied, 5 claims a g ain s t b o th L a m ar C o u nty and Keele would be futile because the two-year statute of limitations had run as of the time Appellants filed their motion for leave to a mend. With respect to Keele, the court found that estoppel did not appl y b ecause Keele n ever misled Appellants about his identity. It also found that the “rare r emedy” of equitable tolling was not a ppropriate because no “ e xtr a o r di n ary c ir cumstance” stood in the
way o f Appellants’ timely f iling. Relation back doctrine was n ot appl i c ab le,

5 The nature of thes e excep tions is d etailed i nf ra , Section II. A. i v . 12 Case: 12-40288 Document: 00512256419 Page: 12 Date Filed: 05/29/2013No. 12-40288

because Keele, never previously having been a named defendant, did n ot receive adequate notice of the possibility of an action against him. 6 With respect to Lamar County, the c ourt rej e cted Appellants’ argument that because the County had been named i n the o riginal complaint, it remained

a p a rty to th e a c t i o n . The court determined that equitable tolling, while typically avail ab l e “ where the claimant has actively pursued his judicial remedies b y f

i ling a defective pleading during the s tatutory p e riod,” was not available in this case. Se e H a r r i s v. Boyd T

unica, Inc. , 628 F.3d 237, 239 (5th Cir. 2010) (noti ng that equitable tolling a pplies only in “rare and exceptional circumstances” (quoting Teemac v . H e n d erson , 298 F .3d 452, 457 ( 5th Cir. 2002)). The court also determined that relation back doctrine was inapplicable. Appellants then filed a m otion for reconsideration of their m otion for leave to amend. They argued in that motion, and a rgue again on appeal, that Rule 54(b) dictates that Lamar County remained a party to the litigation even after the court dismissed all claims a gainst it, because the court’s order wa s n ot certified as a final judgment. Without directly addressing this argument, the district court denied Appellants’ motion for reconsideration. ii. Standard of Review This Court reviews a district court’s denial o f a motion to amend for abuse of discretion

. Baker v. Putnal , 75 F.3d 190, 1 96 (5th Cir. 1996). A district court possesses broad dis c r etion in its decision whether to p ermit amended complaints. McLean v . Int’l Harvester Co. , 817 F.2d 1214, 1224 (5th Cir. 1987)

6 Rule 15( c) ( 1) p rovid es : An am end ment to a p lea d i n g r e l ates back to the d ate of the original plead ing w hen

. . . the am end m ent as s ert s a claim or d ef ens e that aros e out of the cond uct, trans action, or occurrence s et out— or attem p ted to be s et out—in the original p lead ing

. . . . Fed

. R. Civ. P. 15( c) ( 1) (B)

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(citing Chitimacha T

r i b e v. Harry L. Laws Co. , 690 F.2d 1157, 1163 (5th Cir. 1982)). iii. Lamar County Because the district c ourt did not certify a s a f i n al judgment its initial order dismissing the claims against Lamar County with prej u d i c e , Lamar County was still a party t o the suit at the time Appellants sought leave to amend their complaint. The district co urt thus abused i ts discretion in denying Appellants’ motion for leave to amend. Rule 54(b) provides: When an action presents m ore than one claim for relief—whether as a claim, counterclaim, c rossclaim, or thi rd-party claim—or when multiple parties a re involved, the court may direct entry of a final judgment as to o ne or more, but fewer than all, claims or parties only if th e c ourt expressly determines that there is n o just reas o n for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the c l a i m s or parties and may be r evised at any time before the entry of a judgment a djudicating all th e claims and all the parties’ rights and liabilities.
F e d. R. Civ. P

. 54(b). I n o ther words, “[n]o ruling can be a ppealed unti l a certification is obtained u nder Rule 5 4(b) or until a ll the remaining issues in the

case h a v e b e e n d ecided.” 10 Charles Alan Wright et a l., Federal Practice and Procedure § 2656 (3d ed. 1998) (footnote o mitted); s ee also I nterdrill, Inc. v. Bear Stearns Secs. Co r

p ., 214 F.3d 1 350, at *1 n.2 (5th Cir. 2000) (per curiam) (unpublished) (finding n o a ppellate jurisdiction where “the district c ourt did not enter a Rule 54(b) j udgment on the Rule 12(b)(6) claims,” and n oting that unless the district court indicates “that no just reason for delay e x i s t s and expressly directs e ntry o f j u d g m ent, f inality will not attach to an order th at disposes of

some but not a ll o f the defendants” (quoting Witherspoon v. White , 111 F.3d 399,
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402 (5th C ir. 1997))). The rule reflects the “historic federal policy against piecemeal appeals.” Curtiss–Wright Corp. v . Gen. Electric C o . , 446 U.S. 1, 8 (1980). While the Fifth Circuit has done away with the requirement tha t a district judge “mechanically recite” that there is “no j ust reason for d elay” in order for a judgment to be considered final , K elly v. Lee’s Old Fashioned Hamburgers, Inc. , 908 F.2d 1 218, 1220 (5th C ir. 1 9 9 0 ) ( e n b anc), the district judge’s intent t o enter a partial f i n a l j udgment u n der Rule 54(b) “must be unmistakabl e” on the face of the order or of the documents referenced in it. Briargrove Shopping Ctr. v. Pilgrim Enters. , 170 F .3d 536, 539 (5th Cir. 1999). The district court e xhib i t e d no such unmistakable intent in its order dismissing Appellants’ claims against Lamar County. In f act, the order c ontains

no indication at a l l t hat the district court intended the dismissal to be

a p pealable—there is no use of the w ord “final” and no mention of Rule 5 4 (b ) , much less a certification that there was “ n o j u s t r eason for delay.” Cf. Briargrove Shopping Ctr. , 170 F.3d at 538, 541 (holding that even though a district cour t order included the statement, “This is a Final J udgment[,]” the

o r d e r n o netheless “fail[ed] by a wide margin to meet [the] test [for Ru le 5 4 (b ) certification]”). This Court would not therefore have had jurisdiction to hear an appeal of the dismissal with prejudice. No p arty disputes that Appell a n t s filed their initial c omplaint against Lamar County b efore the s tatute of limitations h ad run. See Price v. City of San Antonio , 431 F.3d 890, 892 ( 5th Cir. 2005) (noting that the limitations period for

a § 1983 claim is the same as for perso n a l i n j u ry actions in the forum state, which i n Texas i s two years). Because the district court’s dismissal of the claims against Lamar C ounty was not a final judgment, a nd bec a u s e t h e order “adjudicate[d] fewer than all the claims o r the rights and liabilities of fewer than all the parties,” the dismissal did “not end the a ction as to [Lamar County] and may b e revised at any time before the entry of a judgment adjudicating all the

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claims and all the p a r t i e s ’ rights and l iabilities.” Fed. R. Civ. P

. 54(b). Amending the complaint to agai n i n c l u de Lamar County as a defendant therefore would not be “f utile,” and the district court abused its discretion in so concluding. For these reasons, we reverse the denial of Appellants’ motion for leave to amend as it pertains to Lamar County, and remand to the district court. Because we find that the statu t e o f l i m i t ations had n ot elapsed by the time Appellants filed their suit against Lamar County, w e n eed not address whether
any of the exceptions to the normal rules o f limitations periods (estoppel, equitable t olling, or relation back doctrine) apply with r e spect to Lamar County. iv. Officer Keele The distr i c t c o u r t did not, however, abuse its discretion when i t denied Appellants l e a v e t o amend their complaint to add Keele to the l itigation. The district court correctly noted that relation back under Rule 15(c) can apply to a claim a sserted a gainst a new party only if the party “received such notice of the action that [the p arty] wil l n o t b e prejudiced in defending on the merits; and

. . . knew o r s h o u l d h ave known that the action would h ave been brought against it, but for a mistake concerning the proper p arty’s identity.” Fed. R. Civ. P. 1 5 ( c ) ( 1)(C)(i)–(ii). Appellants make no claim that there was e ver any confusion as to Keele’s identity; indeed, Appellants clearly knew Keele’s identity

as e a rly as the original pleadings, as he is included in that c omplaint’s factual allegations. Similarly, estoppel only applies if the party in question misrepresents his identity to the plaintiff, which Keele did not do. See Hafferman v. Westinghouse Electric Corp. , 653 F. Supp. 423, 428 (D.D.C. 1 986) (“[I]t is well recognized that if a p arty sought t o be added t o a complaint misleads a plaintiff as to i ts identity , the new defend a n t will be estopped from asserting a statute of limitations defense.” (emphasis added)).

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Finally, the district court correctly concluded that application of equitable tolling is not j ustified i n this c ase. Appellants’ having b een u n aware of certain information before Ke ele’s deposition did not amount t o an “ extraordinary circumstance” as the d octrine requires. See Lawrence v. Florida , 549 U.S. 327, 336 (2007) (explaining that equitable tolling requires a showing “‘(1) [a litigant] has been pursuing his rights diligently, a nd ( 2) that s ome extraordinary circumstan c e stood in his way’ and prevented timely filing.” (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005))). Cf. Irwin v. Dep’t of Veteran Affairs ,

, 96 (1990) (“Federal courts have typically extended equitable [tolling] relief only sparingly[:] where the claimant has actively pursued h i s j u d i cial remedies by filing a defective pleading during the statutory period, or where the c omplainant has been induced or tricked

. . . into allowing the fili n g d e a d line to pass.” (footnote omitted)). Appellants do not c ontend that a ny other exception applies. Therefore, the bar created by the statute of limitations f or a claim against Keele

means that a n a m endment adding him as a d efendant would indeed be futile. We thus affirm the d enial of Appellants’ motion f or leave to amend as i t relates to Keele. B. Appellants’ F ourth Amendment C laims and Appell e e s ’ Qualified Immunity i. Standard of Review This Court reviews d e novo a district c ourt’s grant of summary judgment. XL Specialty Ins. Co. v . Kiewit Offshore Servs., Ltd. , 513 F.3d 146, 149 ( 5th Cir. 2008). “The evidence of the non-movant i s t o b e believed, a nd a ll justifiable infe r ences are to be drawn in his favor.” A nderson v. Liberty L obby, Inc. , 477 U.S. 242, 255 (1986). S u mmary judgment is only appropriate where there is “no gen u i n e i s s u e a s to any material fact and

. . . the m oving party i s entitled to a judgment as a matter of law.” Id. at 247. “Material facts” are those that “might affect the outcome of the suit under the governing law.” Id. at 248.

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ii. Analysis Qualified immunity protects government officia l s from liability for civil damages to the extent that their conduct is objectively reaso n able in light of clearly established law. Harlow v. Fitzgerald , 457 U.S. 8 00, 8 18 (1982); Kinney

v. Weaver , 367 F.3d 337, 346 (5th Cir. 2004) ( en banc). “When a defendant invokes qualified immunity, the burden i s on the p l a i n t i f f to demonstrate the inapplicability of the defense.” McClendon v. City of Colu m b i a , 305 F.3d 314, 323 (5th Cir. 2002). To demonstrate the inapplicability of the qualified immunity defense, the plaintiff must satisfy a t wo-prong test: “First, h e m ust claim that the defendants committed a constitutional violation under current l aw. Second, he must claim that the defendants’ actions were objectively unreasonable i n l ight of the law that was clearly e stablished at the time of the actions complained of.” A tteberry

v. N ocona Gen. Hosp. , 430 F.3d 245, 2 53 (5th Cir. 2 005) (citations omitted); see also P fannstiel v. City of Marion , 918 F .2d 1178, 1183 (5th Cir. 1990), a b rogated

on other grounds as recognized in M artin v . Thomas , 973 F.2d 449, 455 (5th Cir. 1992) (“A defendant is entitled to qualified immunit y u n less, ‘on an objective basis, it is o b v ious that no reasonably competent officer would have concluded that a w arrant should issue

. . . . ’” (quoting Malley v Briggs , 475 U.S. 3 35, 341 (1986)). The Court may conduct the t w o-pronged inquiry in any order. See Pearson v. Callahan , 555 U.S. 223, 236 (2009). We begin our analysis with the second prong, and conclude that because Appellees were not “objectively unreasonab l e” i n believing there was probable

cause to arr e st Crostley and Finley, the district court was correct in granting Appellees’ respective motions for summary judgment. 7 This Court determines

7 The claim s Ap p ellants have brought agains t Brook s and M cN eal are nearly id entical. The d eterm ination of ea c h ’ s su mmary j u d gm ent m otion turns on w hether they were objectively reas onable in believing there w as probable caus e to arres t Finley and Cros tley. M cN eal and 18 Case: 12-40288 Document: 00512256419 Page: 18 Date Filed: 05/29/2013No. 12-40288

whether an officer was objectively unreasonable after t aking into account the totality of the c ircumstances at the time t h e a rrests were made. See Beck v. Ohio , 379 U.S. 89, 91 (1964); F reeman v. Gore , 483 F.3d 404, 411 ( 5th Cir. 2007) (“[T]he court a pplies an objective standard b ased o n the viewpoint of a reasonable officia l i n l i ght of the information then available to the defendant .

. . .”); United States v. Maslanka , 501 F.2d 208, 212 (5th Cir. 1974) (“To determine the presence or absence of pr o b ab l e cause to arrest, one must consider the totality of the circumstances surrounding the arrest.”). “Qualified immunity gives government officials breathing room to make reasonable but m i staken judgments about open legal ques tions [and] protects all but the plainly i ncompetent or those who knowingly violate the law.” Ashcroft

v. al–Kidd , 131 S. Ct. 2074, 2085 (2011) (internal quotation marks o mitted). In the context of Fourth Amendment false arrest claims and the issue of probable
cause, “[e]ven law e nforcement officials who reasonably, but mistakenly, conclude that probable cause is present are entitled to i mmunity.” Gibson v. Rich , 4 4 F.3d 2 74, 277 (5th Cir. 1995). H ere, Appellants have fa i l e d t o m eet their burden. Adm i t t e dly, much of the evidence Appellees cite in their b riefing and in the arrest warrant affidavit as establishing probable cause i s of dubious quality. For example, Brooks claims that investigators d etermined that McClelland had been run over and dragged at a low speed, but this statement appears only in the affidavit Brooks prepared as part of his defense in this suit, and nowhere else in the record. There is little evidence that Crostley and Finley ever traveled on the road on which McClelland was killed, contrary to the claims in the arrest warrant affidavit. While Appellees c l a i m that the undercarriage o f Finley’s tru c k had been “washed, cleaned, and driven through tall grass,” p hotographs

Brook s had acces s to the s am e inf orm ation. For thes e reas ons , w e a n alyze their s um m ary jud gm ent m otions together. 19 Case: 12-40288 Document: 00512256419 Page: 19 Date Filed: 05/29/2013No. 12-40288

of the truck taken at the t ime do n ot support this conclusion. Finley did not “flee the state,” as Appellees claim, b ut rather sought r efuge wit h a f r i end after receiving threats, and then only after h e had given his cont a c t i nformation to law enforcement officials. Appellees were aware that this was the case because of their conversation with Finley’s father. However, the deficiency of any one piece of evidence used to demonstrate probable cause does not, on its own, mean that probable c ause di d not exist. See, e.g. , United States v. Privette , 947 F.2d 1259, 1260 ( 5th Cir. 1991) (“Because the affidavit supports a f

inding of probable cause when read without the challenged statements, t h e t rial court did not err in denying [the defendant’s] motion to suppress.”). I n this case, there was enough evidence sug g e s ting Appellants’ culpability t h a t w e cannot s ay Appellees were objectively unreasonable in concluding there was probable cause for their arrest. Appellants admit that they had been drinking h eavily th e night o f McClelland’s death, that the three friends had argued before McClelland exited Finley’s t ruck that night, and that Appellants were the last people to s ee McClelland alive. Appellees were told by Ashley Finley and Officer Pillars that Crost l e y a nd Finley had a dmitted to killing McClelland to Newkir k a n d Laster. Hearsay statements such a s these

can be considered as part of the totality of the circumstances in determining if t h e r e was probable cause. See Illinois v . Gates , 462 U.S. 213, 239–40 (1983) ; United States v . J

a c k s o n , 818 F.2d 3 45, 348 (5th Cir. 1987); see a lso United States v . Fooladi , 703 F.2d 180, 183 (5th Cir. 1 983) (“[W]hen an average citizen tenders information to the police, the police should b e permitted to assume that they are dealing with a c redible person in the absence o f special circumstances suggesting that s uch might not be the case.”). While L aster and Newkirk later effectively re c a n t e d their statements, at the time of Appellants’ arrests,

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Ap p e l l ees had no reason to disbelieve the witnesses. 8 Appellees w ere n o t objectively u nreasonable in concluding that these pieces o f e vidence, taken together, gave them probable cause to arrest Appellants. We affirm the district court’s grant of summary judgment in f avor o f Ap p e l l e e s w ith respect to Appellants’ § 1983 false arrest claims. C. Appellants ’ M a licious Prosecution Claim and Appellees’ Official Immunity Texas recognizes an “official immunity” defense to state law claims such

as m alicious prosecution. City of Lancaster v. Chambers , 883 S.W.2d 6 50, 653 (Tex. 1994). State actors are entitled to official i mmunity from state law liability for “(1) the performance of discretionary duties (2) that are within the scope of the employees’ authority, (3) provided that the emplo y e e a c ts i n good faith.” Telthorster v. T

e n n e l l , 92 S.W.3d 457, 460–61 (Tex. 2002); s ee also DeWitt v. Harris Cnty. , 904 S.W.2d 6 50, 652 (Tex. 1995). “Texas law of official immunity is substantially the same as federal qualified immunity.” Wren v. Towe , 1 30 F.3d 1154, 1160 (5th Cir. 1 997); see also Hart v. O’Brien , 127 F.3d 4 24, 452 (5th Cir. 1997) (holding that where officers “r easo n ably believed they had probable cause to proceed against [the plaintiff],” as determined in the f ederal qualified immunity analysis, the plaintiff “cannot asse rt a cl ai m f o r m ali c i o u s p r o s e c u tion” under Texas law). Appellees were c l e arly p e rf o r m in g di s cretionary duties within

8 Ap p ellants note that Ap p ellees w ere aw are that N ew k irk had as s aulted Finley earlier in the year, and that t h i s m e a n t h i s s tatem ents cannot be cred ited tow ard a find ing of p robable caus e becaus e “w he r e t h e w itnes s has a m otivation to lie, or there is s om e other ind ication that the inf orm ation is not reliable, ” a p robable caus e af f id avit mus t includ e evid ence d em ons trating the w itnes s ’s veracity. H a le v . F ish , 899 F. 2d 390, 399 ( 5th Cir. 1990)

. Cf

. U n i t e d S t a t e s v . Phi l l i

p s , 727 F. 2d 392, 399–400 ( 5th Cir. 1984) (f ind ing that w if

e’s reliability w as greatly d im inis hed by p os s ible motives for retaliation, as s he had recently had a f ight w ith her h u s b a n d , the def end ant)

. Leaving as id e the is s ue of w hether N ew k irk ’s a s s a ult on Finley ris es to the level of a “m otivation to lie, ” Ap p ellants p oint to nothing ind icating that Laster w as an unreliable w i tnes s . Ap p ellees w ere theref ore f ree to believe Las ter’s claim s that Finley had told him about killing M cClelland

. 21 Case: 12-40288 Document: 00512256419 Page: 21 Date Filed: 05/29/2013No. 12-40288

the s cope of their authority. Because we find that Appellees w ere not objectively unreasonable in b elieving that probable cause e xisted, w e cannot say they were not a c t ing in good faith over the course of their investigation and arrest of Appellants. W e therefore hold that Appellees are entitled t o state official immunity. The district court was correct in granting their summary judgment motion as to Appellants’s state malicious prosecution claim. III. CONCLUSION For the reasons above, we REVERSE the district court’s denial of Appellants’ motion for leave to amend as it relates to Lamar County and REMAND for proceedings consistent with this opinion, but AFFIRM the denial as it relates to Keele. We AFFIRM the district court’s orders granting summary judgment for Appellees.

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