* Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-60540

Summary Calendar

_______________

PAMELA KEITH,

Plaintiff-Appellee,

VERSUS

MAURY L. SCHUH,

In His Individual Capacity,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(1:96-CV-39-D-D)

_________________________

August 17, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Maury Schuh appeals the partial denial of summary judgment on

Pamela Keith's First Amendment retaliation claim brought under

42 U.S.C. § 1983. Concluding that Schuh had probable cause to

arrest Keith and that, once under arrest, Keith was properly placed

in a detention cell, we reverse and render summary judgment in

favor of Schuh.
2

I.

A young-sounding woman claiming to be Gladys Welch called in

a prescription refill to a pharmacy. Knowing Welch to be an older

woman, the pharmacist was suspicious and began making phone calls.

There is a factual dispute as to whether Welch told the pharmacist

that she had asked her daughter and son-in-law to pick up the

prescription for her. It is undisputed, however, that the doctor's

office that had written the prescription informed the pharmacist

that there had been other problems with the prescription and that

he should consider the prescription canceled and should refuse to

fill it for anyone. It is also undisputed that the pharmacist then

called the police, telling them that both Welch and the prescribing

doctor had disclaimed any authority for anyone to pick up the

prescription.

Roy Moreno, Keith's husband, eventually arrived to pick up the

drugs, and Lee County Deputy Sheriff Maury Schuh confronted him.

After a conversation with Moreno, Schuh escorted him to Moreno's

car, where Keith and a small child were waiting. Schuh asked them

to follow him back to the sheriff's department, and they did so.

Schuh placed Moreno and Keith in separate rooms and questioned

them. According to Keith, Schuh questioned her for about five to

seven minutes. At one point, according to Keith, a heated exchange

took place:

I said, look, let me tell you something, I would not risk

going to jail over 12 half of a milligram nerve pills when

I've got 90 that's a lot stronger than the ones she's got.

He said, oh, you do? He said, well, I'll tell you what

I'll do, I'll call the Welfare on you right now and have

your kid took away from you.
3

* * *

I said, you pick up that mother fucking phone and you call

'em. And I jumped out of that chair and I said, you don't

threaten me to call no Welfare on me because I ain't done

a damn thing. I said, I had permission to pick that

medicine up and if you don't believe me, that's tough. He

said, you're going in the cell. I said, put me in there.

Because I didn't care. I ain't scared of none of 'em down

there.

* * *

And he's lucky I didn't knock him through that wall,

because I didn't care if I sat in that jail for a little

while. . . . I mean, that's how mad he made me when he

threatened me with that Welfare. 

After this alleged exchange, Schuh had another officer place

Keith in a detention cell, where she remained, by her estimation,

about ten or fifteen minutes, during which time she sat on a cot

and smoked cigarettes. After spending less than an hour at the

Sheriff's Department, Keith and Moreno were released.

A few weeks later, Schuh swore out a warrant for Keith's

arrest, charging her with felony conspiracy to obtain a controlled

substance and with uttering a forgery. These charges were later

dismissed.

II.

Keith alleged that she had been arrested and prosecuted

without probable cause, in violation of the Fourth Amendment, and

that her brief incarceration had been in retaliation for her

exercise of protected speech, in violation of the First Amendment.

Schuh moved for summary judgment on the basis of qualified

immunity. The district court granted summary judgment on the
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Fourth Amendment claims, which action Keith does not appeal, but

denied it on the First Amendment claim. 

III.

Where summary judgment is denied in a civil rights action on

the basis of an officer's immunity from suit, the collateral order

doctrine permits an interlocutory appeal. Mitchell v. Forsyth,

472 U.S. 511 (1985); Hale v. Townley, 45 F.3d 914, 918 (5th Cir.

1995). Our review of such appeals is limited by the extent to

which the district court's action was based on issues of law,

rather than of disputed fact. See Johnson v. Jones, 515 U.S. 304,

313-18 (1995). 

The existence of some disputed issues of material fact does

not necessarily preclude our review, however. Rather, we may

decide, as a matter of law, whether those historical facts deemed

adequately supported by the record meet the applicable standard of

qualified immunity. See Behrens v. Pelletier, 516 U.S. 299 (1996);

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

Where a district court has not identified what facts it deems

adequately supported, “a court of appeals may have to undertake a

cumbersome review of the record to determine what facts the

district court, in the light most favorable to the moving party,

likely assumed.” Behrens, 516 U.S. at 313 (quoting Johnson,

515 U.S. at 319). 

Here, there is no doubt that many of the facts relating to the

availability of qualified immunity are in dispute. This alone,
5

however, cannot enable Keith to survive summary judgment, for the

Behrens Court held that the denial of qualified immunity is not

immune from interlocutory appeal simply because it “rested on the

ground that material issues of fact remain.” 516 U. S. at 312

(internal punctuation omitted). For an appeal to be foreclosed,

the facts in dispute must be necessary toSS”not truly 'separable'”

fromSSthe availability of qualified immunity. Id.

We may take the undisputed facts and assume the resolution of

disputed facts in Keith's favor, and apply the resulting factual

scenario to the correct legal standard. See id.; Baker v. Putnal,

75 F.3d 190, 197 (5th cir. 1996); Nerren v. Livingston Police

Dep't, 86 F.3d 469, 472 (5th Cir. 1996); Cantu v. Rocha, 77 F.3d

795, 802 (5th Cir. 1996). If we find, on the basis of these facts,

that Schuh is entitled to qualified immunity, any resolution of the

disputed facts becomes immaterial. Having jurisdiction over the

appeal, then, we review the partial denial of summary judgment

de novo. See Coleman, 953 F.3d at 533.

IV.

Qualified immunity shields government officials performing

discretionary functions from personal liability for damages

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity is a defense not only to liability but

also from suit altogether. Mitchell v. Forsyth, 472 U.S. 511, 526
6

(1985).

To determine whether qualified immunity is available to a law

enforcement officer, a court must inquire into the “objective legal

reasonableness” of his actions. Behrens, 516 U.S. at 306. We must

determine whether the plaintiff has alleged a violation of a

constitutional right clearly established at the time of the

unfortunate event, Mangieri v. Clifton, 29 F.3d 1012 (5th Cir.

1994), for if no right was violated, the lawsuit must end. If a

constitutional right has been violated, we must assess the

objective reasonableness of the officer's actions. Id. 

Qualified immunity protects government officials “as long as

their actions could reasonably have been thought consistent with

the rights they are alleged to have violated,” Pfannstiel v. City

of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990) (quoting Anderson v.

Creighton, 483 U.S. 635, 638 (1987)), and thus it protects “all but

the plainly incompetent or those who knowingly violate the law,”

Malley v. Briggs, 475 U.S. 335, 341 (1986). If reasonable officers

could differ on the lawfulness of a defendant's actions, he is

entitled to immunity from suit. Pfannstiel, 918 F.2d at 1183; see

also Malley, 475 U.S. at 341. 

V.

Schuh contends that Keith's “I ain't done a damn thing”

diatribe was not speech protected by the First Amendment. We need

not reach this issue, for Schuh's treatment of Keith was entirely

within the scope of his authority, and Keith has presented no
 

* Cf., e.g., City of Riverside v. McLaughlin, 500 U.S. 44, 52-57 (1991)

(warrantless detention for 48 hours); Brinegar v. United States, 338 U.S. 160,

175-78 (1949) (probable cause determination); Ornelas v. United States, 516 U.S.

690, 695-97 (1996).

7

evidence that Schuh retaliated in any way.

No one disputes that Schuh's placement of Keith in a detention

cell would have been entirely appropriate, but for the alleged

retaliatory motive. Schuh detained Keith without a warrant, to be

sure, but this brief detention was supported by probable cause,

namely her participation in an apparent scheme to obtain controlled

substances.* 

Keith rests her entire case on the theory, apparently derived

from Mt. Healthy Board of Educ. v. Doyle, 429 U.S. 274 (1977), that

Schuh's alleged retaliatory animus renders his otherwise proper act

unconstitutional. Again, we may avoid addressing the merits of

this theory, for even under Keith's proposed inquiry into Schuh's

subjective intent, Keith has presented no competent summary

judgement evidence as to Schuh's alleged retaliatory animus.

Keith bears the burden of setting forth specific facts showing

that there is a genuine issue for trial. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). She has failed to do so. Aside from her bald and

conclusional allegations of retaliations, there is no indication in

the summary judgement record that Schuh intended to retaliate. On

the contrary, the only evidence we have of Schuh's subjective

intent is his deposition testimony that he placed Keith in a

detention cell because he believed she might pose a security threat
8

if left unsecured and unsupervised. Keith has given us no reason

to doubt that testimony, so there is no disputed issue of material

fact. 

Therefore, we must conclude thatSSat the very leastSSreasonable

officers could disagree as to the reasonableness of Schuh's actions

in confining Keith to the detention cell. Because Schuh's

allegedly violative acts were objectively reasonable, he is

shielded from personal liability for those acts under the doctrine

of qualified immunity. See Pfannstiel, 918 F.2d at 1183.

The partial denial of summary judgment is REVERSED, and

judgment is RENDERED for Schuh.