*Local rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 95-20329

 _____________________

DONNY VANDAGRIFF; ETHEL LYNN CARROLL;

VICKIE LEE MURPHY,

Plaintiffs-Appellees,

versus

EFAC INC., doing business as West End

Market Place; INVECE, INC., doing

business as West End Market Place; DALLAS

BREWERY, INC., doing business as West End

Market Place; PATRICK E. DUPREZ, doing

business as West End Market Place;

JAMES B. MCCLEAN, Agent, doing business

as West End Market Place; MAXIMUM SECURITY,

INC., JOSE FLORES; CITY OF DALLAS, TEXAS and

COUNTY OF DALLAS, TEXAS,

Defendants,

and

CHARLES W. TUTEN; KAREN M. ELLIS,

Defendants-Appellants.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Texas 

(3:93-CV-1474-R)

_______________________________________________________

November 13, 1995

Before REAVLEY, SMITH and PARKER, Circuit Judges.

PER CURIAM:*
expense on the public and burdens on the legal profession.” 

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

2

Plaintiff-appellees Donny Vandagriff, Ethel Lynn Carroll,

and Vickie Lee Murphy (“Plaintiffs”) filed this § 1983 action

against, inter alia, the City of Dallas and two of its police

officers, Charles W. Tuten and Karen Ellis. The Plaintiffs

allege that while they were attending a concert in Dallas,

Officers Tuten and Ellis, among others, arrested them unlawfully

and with excessive force, and that their injuries resulted from a

policy or custom of the City of Dallas. The officers asserted

the defense of qualified immunity in their answer and their

motion for summary judgment. Then, in response to the

Plaintiffs’ attempted discovery, the officers filed a motion to

stay discovery pending a ruling on summary judgment. The

Plaintiffs responded to Tuten’s and Ellis’ motions and filed a

Rule 56(f) motion for continuance until after discovery in order

to respond to the motion for summary judgment of the City of

Dallas.

The district court denied the motion to stay discovery,

granted the Plaintiffs’ rule 56(f) motion, and ordered Tuten,

Ellis, and the City of Dallas to file complete responses to the

Plaintiffs’ discovery requests. Tuten and Ellis now claim the

district court erred in denying their motion to stay discovery

before ruling on their defense of qualified immunity. We can

review discovery orders that deny individuals the benefit of the

qualified immunity defense. Wicks v. Mississippi State
3

Employment Servs., 41 F.3d 991, 994 (5th Cir. 1995). However, we

have no jurisdiction where disputed factual issues material to

the defense of qualified immunity are present. Lampkin v. City

of Nacogdoches, 7 F.3d 430, 431 (5th Cir. 1993). Because such

material facts are in dispute in this case, we have no

jurisdiction, and we therefore dismiss.

BACKGROUND

According to the Plaintiffs’ complaint and affidavits, the

following events occurred at the concert. While Plaintiff

Vandagriff was watching the concert, a private security guard,

Jose Flores, approached and asked Vandagriff whether he had

entered the concert by crossing over a boundary rope. Vandagriff

replied he had not. Moments later, Flores grabbed Vandagriff

from behind, put him in a choke hold, dragged him toward a wall

and threw him face first against it. Officer Tuten, who had been

summoned by Flores, then grabbed Vandagriff from behind and

placed him in a choke hold. Vandagriff repeatedly asked “Why are

you doing this?” and pleaded with the officers “Please don’t hurt

my arm, it’s broken,” but Tuten and others continued to

physically abuse him by repeatedly hitting his broken arm and

slamming his head against the trunk of a car. Plaintiffs Carroll

and Murphy, who had observed what had happened to Vandagriff,

each attempted to inform the police that Vandagriff had done

nothing wrong. In response, Officer Ellis shoved Murphy and

threw her to the ground, and another officer, at Ellis’ and

Tuten’s request, threw Carroll against a wall and handcuffed her. 
4

All three plaintiffs were placed under arrest and charged with

criminal offenses. Vandagriff was placed in a cell for the

remainder of the night without any clothing and received numerous

humiliating remarks from various jail personnel. Carroll also

alleges she was strip searched.

Tuten and Ellis tell a diametrically opposite story in their

affidavits. Tuten states that Vandagriff struggled, using his

cast to thrash at the officers, and that Vandagriff yelled

obscenities in response to Tuten’s request that he calm down. 

Tuten and Ellis allege that Murphy grabbed at Tuten as he

handcuffed Vandagriff. Ellis claims that she pulled Murphy off

of Tuten, and that Murphy fell as she struggled to free herself

from Ellis’s grasp. Ellis alleges that Vandagriff continued to

struggle after Murphy and Carroll were placed in the squad car.

ANALYSIS

The initial inquiry in the examination of a defendant’s

claim of qualified immunity is whether the plaintiff has

“alleg[ed] the violation of a clearly established Constitutional

right.” Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789,

1793 (1991). Our de novo review makes clear that Plaintiffs’

complaint and affidavits sufficiently allege violations of

clearly established law.

In the context of unlawful arrest, the qualified immunity

determination turns on whether a reasonable officer could have

believed the arrest to be lawful in light of clearly established

law and the information the officer possessed. Babb v. Dorman,
5

33 F.3d 472, 477 (5th Cir. 1994) (citing Hunter v. Bryant, 502

U.S. 224, 227, 112 S.Ct. 534, 536 (1991)). Law enforcement

officials who reasonably but mistakenly conclude that probable

cause is present are entitled to immunity. Id. Whether the

officers’ actions were objectively reasonable is a question of

law. Lampkin, 7 F.3d at 434. We look at the facts as alleged by

the Plaintiffs, but in conducting our objective analysis of the

officers’ actions we consider only the information available to

them. Id. at 435.

Under such a standard it is clear that Tuten and Ellis could

not reasonably have believed they had probable cause to arrest

the Plaintiffs. Based solely on a request by Jose Flores, a

private security guard, Tuten and other officers roughed up and

then arrested the peaceful Vandagriff without determining first

what Vandagriff had done. Furthermore, plaintiffs Carroll and

Murphy were arrested merely for trying to inform Ellis, in a nonbelligerent manner, of the mistake Tuten was making in arresting

Vandagriff. No reasonable officer could believe there was

probable cause to arrest any of the Plaintiffs under these

circumstances.

Once a plaintiff has asserted violations of clearly

established law, it is well established that parties asserting

qualified immunity are not immune from all discovery, but only

that which is “avoidable or overly broad.” Wicks, 41 F.3d at

994; Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). 

Discovery is neither avoidable nor overly broad if (1) the
6

immunity claim turns at least partially on a question of fact;

(2) the district court is unable to rule on the immunity defense

without further clarification of the facts; and (3) the discovery

order is narrowly tailored to uncover only those facts needed to

rule on the immunity claim. Lion Boulos, 834 F.2d at 507-08.

It is clear that the appellants’ immunity claims turn at

least partially on questions of fact concerning the circumstances

of the Plaintiffs’ arrests, and that the district court was

unable to rule on the immunity defense without further

clarification of those facts. The district court correctly

stated this in its memorandum opinion.

We are thus left with the question whether the discovery

requests which the court ordered defendants to complete were

narrowly tailored to the immunity defense. After a review of the

requests it is clear they pertain to the circumstances

surrounding the arrests of the Plaintiffs.

Based on the foregoing, we are without jurisdiction over the

district court’s interlocutory orders and therefore dismiss this

appeal.

APPEAL DISMISSED.