1 District Judge of the Southern District of Texas, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 93-7196

____________________

LARRY WAYNE FOSTER, ET AL.,

Plaintiffs-Appellees,

VERSUS

CITY OF LAKE JACKSON, ET AL.,

Defendants,

A.A. MCCLAIN, ETC., WILLIAM YENNE, ETC.,

P.C. MILLER, ETC., MATTHEW HOUSTON, ETC.,

and JOHN DEWEY, ETC.,

Defendants/Appellants.

_______________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

______________________________________________________

(July 27, 1994)

BEFORE WISDOM and BARKSDALE, Circuit Judges, and HARMON, District

Judge.1

RHESA HAWKINS BARKSDALE, Circuit Judge:

The dispositive issue for this appeal is qualified immunity

against a claim of denial of access to the courts by concealing and

suppressing evidence during discovery. And, for purposes of this

appeal, that issue centers on whether the claimed constitutional

right was clearly established at the time of its alleged violation.

Claiming qualified immunity, among other things, officials of the
2 In June 1988, the Fosters signed a release acquitting the

City and city officials of liability for the accident; the court

granted their motion to dismiss in December 1990. It is unclear

when the state suit discovery took place. The city officials

assert that the Fosters settled that suit in 1986; and the

district court used that year as its benchmark for determining

whether the right at issue was clearly established. For our

purposes, however, we must consider whether it was clearly

established in the period 1985 to 1988. We do so because this

appeal is from the denial of a motion to dismiss, see Fed. R.

Civ. P. 12(b)(6). Accordingly, we must take as true the well

pleaded allegations in the complaint. See infra. With regard to

the timing of the challenged conduct, the complaint alleges only

that it occurred from 1985-1988. 

3 The city officials, and their positions at the time of the

challenged conduct, are: A.A. MacLean (City Manager), William

Yenne (Assistant City Manager), P.C. Miller (Chief of Police),

Matthew Houston (City Engineer), and John Dewey (City Attorney).

4 The Fosters alleged that the city officials intentionally

failed to respond to interrogatories concerning prior complaints

about the traffic light; removed or destroyed the police

2

City of Lake Jackson, Texas, press this interlocutory appeal from

the denial of their motion to dismiss. We REVERSE. 

I.

Larry and Pamela Foster sued the City in state court in 1985,

claiming that their son's death in an automobile accident was

caused by the City's failure to maintain a traffic light. After

discovery, the Fosters and the City reached a settlement, and the

claims against the City were dismissed.2

The Fosters later filed this § 1983 action against the City

and several of its officials.3 They alleged that, in the state

suit, the defendants conspired to deny them access to the courts by

concealing and suppressing evidence during discovery, causing them

to settle for less than they might have had they obtained the

evidence in question.4
dispatcher's log records in which the complaints were recorded;

withheld the logs despite a document request; gave false

deposition testimony regarding their knowledge of the

malfunction; and induced police officers to remain silent about

their knowledge of it. 

5 In denying qualified immunity, the district court cited the

Supreme Court's recent decision in Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, ___ U.S. ___, 113 S.

Ct. 1160, 1162 (1993), which held the heightened pleading

standard for civil rights actions inapplicable for those against

municipalities. See Elliott v. Perez, 751 F.2d 1472 (5th Cir.

1985) (establishing heightened pleading standard; abrogated as to

municipalities by Leatherman). The district court noted that

Leatherman had not addressed whether Elliott continued to apply

to claims against individuals. Accordingly, it felt bound to

apply the Elliott standard to the allegations against the city

officials; however, it ordered limited discovery. Because we

hold that the officials are entitled to qualified immunity, the

heightened pleading issue is moot. 

6 In the first appeal, the city officials also challenged the

district court's order that they submit to discovery before

adjudication of qualified immunity. This issue is moot, because,

after the appeal from the discovery order was filed, the district

court denied the defense. 

The city officials contend that the district court was

without jurisdiction to deny qualified immunity, asserting that

the earlier appeal from both the denial of witness immunity and

the discovery order divested it of jurisdiction. This contention

overlooks the fact that the discovery order, in essence, denied

qualified immunity. See, e.g., Jacques v. Procunier, 801 F.2d

3

The city officials moved, inter alia, to dismiss, pursuant to

Fed. R. Civ. P. 12(b)(6). They asserted that the Fosters failed to

state a violation of a constitutional right, and that, in any

event, the action was barred by absolute witness immunity and

qualified immunity. The district court held that a claim had been

stated, and ruled, inter alia, against the absolute witness

immunity defense, Foster v. City of Lake Jackson, 813 F. Supp.

1262, 1263 (S.D. Tex. 1993); later, against qualified immunity.5

The separate appeals from those orders have been consolidated.6 
789, 791 (5th Cir. 1980) (purposes of qualified immunity include

shielding officials from "burdens of broad-reaching discovery"). 

4

II.

Our qualified immunity holding moots the other issues. When

the issue is purely one of law, denial of such immunity is

appealable immediately under 28 U.S.C. § 1291, notwithstanding the

absence of a final judgment, because "immunity" in this sense

"means immunity from suit, not simply immunity from liability."

Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 & n.3

(5th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511 (1985);

Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir. 1988)); see

also Siegert v. Gilley, ___ U.S. ___, 111 S. Ct. 1789, 1793 (1991).

But, where there are fact issues, the denial is not appealable

immediately. E.g., Lampkin v. City of Nacogdoches, 7 F.3d 430, 436

(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1400

(1994). Here, no facts are disputed; because we review the denial

of a Rule 12(b)(6) motion, we take as true the well pleaded

allegations in the complaint. E.g., Jackson v. City of Beaumont,

958 F.2d at 618; Collins v. City of Harker Heights, 916 F.2d 284,

286 & n.2 (5th Cir. 1990), aff'd, ___ U.S. ___, 112 S. Ct. 1061

(1992). We review the denial de novo. Jackson v. City of

Beaumont, 958 F.2d at 618.

At bottom, qualified immunity "reconcile[s] two competing

interests. One interest is the compensation of persons whose

federally protected rights have been violated. Opposing this is

the fear that personal liability will inhibit public officials in
5

the discharge of their duties." Johnston v. City of Houston, 14

F.3d 1056, 1059 (1994); accord, Spann v. Rainey, 987 F.2d 1110,

1114 (5th Cir. 1993). In balancing these interests, it is

inevitable that some improper actions are shielded. 

Abrogation of qualified immunity is properly the exception,

not the rule. See McGregor v. Louisiana State Univ. Bd. of

Supervisors, 3 F.3d 850, 862 (5th Cir. 1993), cert. denied, ___

U.S. ___, 114 S. Ct. 1103 (1994). The burden of negating the

defense lies with the plaintiffs. Chrissy F. by Medley v.

Mississippi Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir.

1991) (quoting Mitchell, 472 U.S. at 526); appeal after remand, 995

F.2d 595 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct.

1336 (1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). 

In assessing a claim of qualified immunity, we

engage in a bifurcated analysis. First, we

determine whether the plaintiff has allege[d] the

violation of a clearly established constitutional

right. If so, we then decide if the defendant's

conduct was objectively reasonable....

Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (citations

and internal quotation marks omitted; brackets in original).

Accordingly, "`[u]nless the plaintiff's allegations state a claim

of violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the commencement

of discovery.'" Chrissy F., 925 F.2d at 848 (quoting Mitchell, 472

U.S. at 526) (citations omitted). 

Therefore, our first task is to "review the specific parts of

the complaint to determine whether [plaintiffs] charge conduct
6

violating clearly established federal rights". Id. at 851 & n.33

(citing Stem v. Ahearn, 908 F.2d 1, 5-6 (5th Cir. 1990), cert.

denied, 498 U.S. 1069 (1991)); accord, Lampkin, 7 F.3d at 434;

Enlow v. Tishomingo County, 962 F.2d 501, 508 (5th Cir. 1992). A

right is "clearly established" only when its contours are

sufficiently clear that a reasonable official would have realized

that his conduct violated that right, not simply that the conduct

was otherwise improper. See, e.g., Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 454-55 (5th Cir. 1994) (en banc) (citing

Anderson v. Creighton, 483 U.S. 635, 639 (1987)); Boddie v. City of

Columbus, 989 F.2d 745, 748 (5th Cir. 1993); Click v. Copeland, 970

F.2d 106, 109 (5th Cir. 1992). 

An official's conduct is not protected by qualified immunity

if, in light of preexisting law, it was apparent that the conduct,

when undertaken, constituted a violation of the right at issue.

This is true even if the "very action in question" had not then

been held to be a constitutional violation. See Anderson, 483 U.S.

at 640; Spann v. Rainey, 987 F.2d at 1114-15 (reasonableness of

official conduct judged in light of law existing at time of

violation). "Put another way, officials must observe `general,

well-developed legal principles.'" Doe v. Taylor ISD, 15 F.3d at

455 (quoting Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303,

305 (5th Cir. 1987)).

The constitutional right in issue is access to the courts.

The Fosters contend that this right protects against the discovery

abuses claimed here, because otherwise, litigants' access to the
7

courts is not "adequate, effective and meaningful". The city

officials counter that the right does not encompass a right to

proceed free of discovery abuses by a governmental entity involved

in a civil lawsuit in state court, but protects only the right to

institute the action. In addition, they assert that, even if a

more broadly-based right exists now, it was not clearly established

in 1985-88, the time of the alleged conduct. See note 2, supra.

We agree with this latter contention.

The right of access, in its "most obvious and formal

manifestation ... protects one's physical access" to the courts.

Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir. 1989), cert.

denied, 496 U.S. 924 (1990). In this manifestation, our court has

found the right to be implicated where, for example, prisoners are

denied the right to file a lawsuit, or are denied access to legal

materials, or when prison officials fail to forward legal

documents. Id. at 811-12; Brewer v. Wilkinson, 3 F.3d 816, 820

(5th Cir. 1993) (collecting cases), cert. denied, ___ U.S. ___, 114

S. Ct. 1081 (1994). Similarly, the right may be violated if an

indigent litigant is denied a refund or waiver of filing fees. See

Johnson v. Atkins, 999 F.2d 99 (5th Cir. 1993).

Here, however, the claimed violation is not an impediment to

the ability to file suit. Instead, as framed by the district

court, plaintiffs allege that

public officials "wrongfully and intentionally

conceal[ed] information crucial to a person's

ability to obtain redress though the courts, and

d[id] so for the purpose of frustrating that right,

and that concealment and the delay engendered by it

substantially reduce[d] the likelihood of one's
8

obtaining the relief to which one [wa]s otherwise

entitled...."

Foster, 813 F. Supp. at 1263 (quoting Crowder, 884 F.2d at 812)

(district court's brackets). As noted, plaintiffs contend that

defendants' actions have violated their right of "`adequate,

effective, and meaningful'" access. Crowder, 884 F.2d at 811,

quoting Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983).

Crowder -- which involved a challenge to defendants' taking

plaintiffs' property outside the jurisdiction in an in rem action

-- did not involve a "cover-up" by officials. Instead, like the

prisoners' rights cases on which it relied, it involved conduct by

an official that effectively could have prevented plaintiffs from

instituting their action. That is, the Crowders alleged that by

removing their property from Texas, the defendants "destroyed or

impaired the rightful jurisdiction of Texas courts over the seized

items, thus interfering with [the Crowders'] ability to litigate

ownership of the property in Texas". Crowder, 884 F.2d at 813

(internal citations and quotation marks omitted) (brackets in

original). 

Similarly, Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983)

(cited in Crowder, 884 F.2d at 812), which involved a cover-up by

state prosecutors, is distinguishable. Ryland, like Crowder,

concerned an officially-created impediment to the ability to file

an action, rather than, as here, an alleged post-filing violation.

See Ryland, 708 F.2d at 973.

As stated in Crowder, the right of access is "a facilitative

right ... designed to ensure that a citizen has the opportunity to
7 The Fosters rely on the language from Ryland and Crowder,

quoted supra, and on cases from other jurisdictions, to urge that

a government cover-up of evidence violates the right of access,

even if suit has been successfully instituted. See, e.g., Bell

v. City of Milwaukee, 746 F.2d 1205, 1260-61 (7th Cir. 1984)

(citing Ryland); see also Nielsen v. Basit, No. 83 C 1683, 1994

WL 30980, at *3-4 (N.D. Ill. Feb. 1, 1994) (not reported in F.

Supp.) (citing Bell for proposition that allegations of civil

conspiracy to cover up evidence could state a claim for denial of

access to courts, and that that right was clearly established in

1981). 

Bell, 746 F.2d at 1260-61, cites our court's 1983 Ryland

opinion with approval. We question Bell's reliance on Ryland for

any broader definition of right of access than one encompassing

the right to institute suit. We are similarly skeptical of

Nielsen's reliance on Bell. Nielsen, 1994 WL 30980, at *3

(citing Bell, 745 F.2d at 1261). 

9

exercise his or her legal rights to present a cognizable claim to

the appropriate court and, if that claim is meritorious, to have

the court make a determination to that effect and order the

appropriate relief." 884 F.2d at 814. Thus, our court has

characterized the right of access (even "adequate, effective, and

meaningful access" as contemplated by Crowder, 884 F.2d at 811,

rather than only a physical right of access) to be implicated where

the ability to file suit was delayed, or blocked altogether. For

example, in Ryland, our court found that the prosecutors' action to

delay filing suit could interfere with the "constitutionally

protected right to institute ... suit", if that right had been

prejudiced. 708 F.2d at 973.7 

Crowder acknowledged that, even in 1989, the contours of the

right of judicial access could best be described as "nebulous".

884 F.2d at 811. As reflected above, we hold that the right of

access, as clearly established in 1985-1988, encompassed a right to
8 In cases decided after 1988, our court has continued to

characterize the right of access in terms of the right to

institute suit. See, e.g., Chrissy F., 925 F.2d at 851 (holding

that plaintiff's right of access to the courts was "blocked" by

defendants' failure to report allegations of abuse to appropriate

authorities, which failure caused plaintiffs to delay filing

suit); Johnson v. Atkins, 999 F.2d at 100. Hale v. Townley, 19

F.3d 1068, 1072-74 (5th Cir. 1994), modified, Nos. 92-5208, 93-

4090, 1994 WL 185925, slip op. 4462 (5th Cir. May 13, 1994),

concerns claims in 1988-1991 of retaliation for having sought

redress in the courts. Hale notes, in dicta, that Crowder, 884

F.2d 804, similarly did not involve a "claim that the defendants

had attempted to cover up facts critical to the plaintiffs'

lawsuits." Hale, 19 F.3d at 1073.

10

file an action, but not the right to proceed free of discovery

abuses after filing.

8 Cf. Emplanar, Inc. v. Marsh, 11 F.3d 1284,

1296 (5th Cir. 1994) (in ongoing suit against government agency,

government employee who was potential witness did not improperly

chill access to courts by refusing to speak to plaintiff about

gravamen of litigation).

As discussed, we must accept as true the Fosters' allegations;

the alleged conduct would be reprehensible. But, that we are

"morally outraged", or the "fact that our collective conscience is

shocked" by the alleged conduct, Doe v. Taylor ISD, 15 F.3d at 475

(Jones, J., dissenting), does not mean necessarily that the

officials should have realized that it violated a constitutional

right of access. The reasonable actor must have known that the

conduct violated a clearly-established right; not that, in some

sense, he was doing something wrong. See id. at 465 (Garwood, J.,

dissenting) (dissent would hold that defendant was nevertheless

entitled to qualified immunity despite the fact that his actions
9 The Fosters could, of course, have sought relief in state

court for the challenged behavior using a variety of state law

remedies, e.g. a motion to set aside the judgment based on fraud

or motions to compel compliance with discovery requests. See,

e.g., Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)

(motion to set aside judgment); Tex R. Civ. P. 215 (discovery);

Tex. R. Civ. P. 320 (motion for new trial upon showing of newlydiscovered evidence).

11

were "deplorable....indecisive, insensitive, inattentive,

incompetent, stupid, and weak-kneed"). 

In sum, even assuming that the contours of the right of access

have been expanded since 1988 to include the Fosters' definition,

those contours were not clearly established at the time the claimed

violations occurred. A public official who concealed or destroyed

evidence, or gave false deposition testimony, surely would have

known that was improper, to say the least; but, at the time of the

alleged conduct, the right was not sufficiently "particularized ...

[so] that a reasonable official would understand" that the behavior

violated a constitutional right.9 See Doe v. Louisiana, 2 F.3d

1412, 1416 (5th Cir. 1993) (citations and internal quotation marks

omitted), cert. denied, ___ U.S. ___, 114 S. Ct. 1189 (1994). 

III. 

For the foregoing reasons, we REVERSE the denial of qualified

immunity for the city officials, and REMAND for further proceedings

consistent with this opinion. 

REVERSED and REMANDED