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. 08-10790

VICTOR ALVARADO DELEON

Plaintiff-Appellee-Cross-Appellant

v.

CITY OF DALLAS

Defendant-Cross Appellee

v.

MARK DE LA PAZ

Defendant-Appellant-Cross-Appellee

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:02-CV-1097

Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.

PER CURIAM:*

Two questions are presented by this appeal: (1) whether the district court

properly denied summary judgment on the basis of qualified immunity to Dallas

police officer Mark De La Paz on Victor Alvarado DeLeon’s false arrest claim,

and (2) whether the district court properly granted summary judgment to the

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-10790

 In denying De La Paz’s motion for summary judgment on the basis of qualified

1

immunity, the district court simply stated, “there are genuine issues of material fact present

that preclude the entry of summary judgment, and the court therefore denies summary

judgment on this claim.” 

2

City of Dallas (“the City”) on DeLeon’s Title VI claim. We AFFIRM (and

therefore remand) the first issue and DISMISS the second as we lack jurisdiction

to consider it.

I.

This court has already issued multiple substantive rulings arising out of

the very lawsuit underlying this appeal. We therefore refer to one of our

previous decisions, DeLeon v. City of Dallas, 141 F. App’x 258, 259-60 (5th Cir.

2005), for a statement of the relevant facts. 

II.

A.

The standard of review that this court applies in an interlocutory appeal

asserting qualified immunity differs from the standard employed in most

appeals of summary judgment rulings. Kinney v. Weaver, 367 F.3d 337, 347 (5th

Cir. 2004) (en banc). In an interlocutory appeal, this court lacks the power to

review the district court’s decision that a genuine factual dispute exists and

reviews only “whether the district court erred in assessing the legal significance

of the conduct that the district court deemed sufficiently supported for purposes

of summary judgment.” Id. at 348. We accept the plaintiff’s version of the facts

as true, id., and review de novo the district court’s legal determination as to the

materiality of the identified fact issues. Lemoine v. New Horizons Ranch & Ctr.,

Inc., 174 F.3d 629, 634 (5th Cir. 1999). However, where, as here, the district

court did not identify the genuine issues of material fact, we have the option to 1

“scour the record and determine what facts the plaintiff may be able to prove at

trial and proceed to resolve the legal issues, or remand so that the trial court can
No. 08-10790

3

clarify the order.” Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir.

2001); see also Colston v. Barnhart, 146 F.3d 282, 285 (5th Cir. 1998) (the

appellate court has the authority to “conduct an analysis of the summary

judgment record to determine what issues of fact the district court probably

considered” in denying summary judgment.).

Qualified immunity protects public officials from suit unless their conduct

violates a clearly established constitutional right. Mace v. City of Palestine, 333

F.3d 621, 623 (5th Cir. 2003). Once the defense of qualified immunity is raised,

the plaintiff has the burden to establish facts that overcome the defense. Collier

v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). The plaintiff must show that:

(1) the defendant’s conduct violated a constitutional right, and (2) the

defendant’s conduct was objectively unreasonable in light of clearly established

law as it existed at the time of the conduct in question. Id. Courts may “exercise

their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). 

 The right to be free from arrest without probable cause is a right secured

by the Fourth Amendment. Daniel v. Ferguson, 839 F.2d 1124, 1129 (5th Cir.

1988). “The Supreme Court has defined probable cause as the facts and

circumstances within the officer’s knowledge that are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is committing, or is about to commit an

offense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (internal

quotation marks and citations omitted). Probable cause cannot exist where the

affidavit supporting a warrant contains material false statements or omissions

that are deliberate falsehoods or evidence a reckless disregard for the truth.

Franks v. Delaware, 438 U.S. 154, 155-56 (1978). 
No. 08-10790

 De La Paz’s main argument to this court is that the April 19 arrest, which was made 2

by other officers, was supported by the alternate probable cause that DeLeon was an

undocumented alien. Because we conclude that the June arrest was based solely on De La

Paz’s false affidavit, we need not address the dubious argument that an officer can give a

knowingly false affidavit and avoid liability by the fortuity that, after the fact, he may be able

to argue some other basis for the arrest. 

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As the two-prong qualified immunity test is applied to this case, we cannot

say that the district court committed reversible error in denying De La Paz

summary judgment on the basis of qualified immunity. The second prong of the

analysis is easily satisfied here. When De La Paz submitted his affidavit, the

law was clearly established, and a reasonable officer would have known, that a

government official violates the Fourth Amendment when he deliberately

provides false, material information in an affidavit in support of a warrant. See

Hart v. O’Brien, 127 F.3d 424, 448-49 (5th Cir.), abrogated on other grounds by

Kalina v. Fletcher, 522 U.S. 118 (1997). 

As for the first prong, we agree with the district court that a material fact

issue exists as to whether De La Paz’s conduct violated DeLeon’s Fourth

Amendment rights. DeLeon was arrested twice – once on April 19, 2001, and

again on June 11, 2001. After DeLeon’s April 19 arrest, De La Paz submitted an

arrest warrant affidavit, alleging that he witnessed DeLeon participate in a drug

transaction and requesting that an arrest warrant be issued on these charges.

DeLeon claims that De La Paz submitted the affidavit knowing that the

information it contained was false, and denies participating in or even the

occurrence of a drug transaction on April 19. De La Paz has not challenged

DeLeon’s allegations, defended his affidavit, or pointed to alternate probable

cause for the June 11 arrest. DeLeon spent approximately three months in jail

as a result of the June 11 arrest. It is undisputed that the warrant issued as a

result of De La Paz’s affidavit was the only basis for probable cause for the June

11 arrest. Thus, whether the drug transaction occurred and whether De La Paz 2
No. 08-10790

See 28 U.S.C. § 1292(b); FED. R. CIV. P. 54(b). 3

See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949) (collateral 4

order doctrine); Forgay v. Conrad, 47 U.S. 201, 204 (1848) (hardship-irreparable injury);

United States v. Garner, 749 F.2d 281, 287-88 (5th Cir. 1985) (orders putting the party

“effectively out of court”). 

5

knowingly falsified his affidavit are fact issues material to whether De La Paz’s

conduct violated DeLeon’s Fourth Amendment right to be free from arrest absent

probable cause. The district court’s ruling on this point should be affirmed and

the case remanded for trial.

B.

Turning to DeLeon’s claim against the City, as a general rule, “‘a partial

disposition of a multi-claim or multi-party action does not qualify as a final

decision . . . and is ordinarily an unappealable interlocutory order.’” Thompson

v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985) (quoting Huckeby v. Frozen Food

Express, 555 F.2d 542, 545-46 (5th Cir. 1977)). As a result of the ruling

regarding De La Paz, the judgment for the City is not final. Because none of the

statutory or jurisprudential exceptions to this general rule apply here, we do 3 4

not have jurisdiction to consider whether the district court properly granted

summary judgment to the City on DeLeon’s Title VI claim. Without jurisdiction,

we must dismiss this portion of the appeal. Stanley v. CIA, 639 F.2d 1146, 1157

(5th Cir. Unit B 1981). 

III.

AFFIRMED and REMANDED in part, DISMISSED in part.