* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 15, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40420

Summary Calendar

OLIVIA PELAYO, For Herself and as

Representative of the Estate of Javier Pelayo,

Plaintiff-Appellee,

versus

U.S. BORDER PATROL AGENT # 1; ET AL,

Defendants,

PAUL LABADIE, U.S. Border Patrol Agent, in his individual

capacity; CHRISTOPHER J. BRAND, U.S. Border Patrol Agent,

in his individual capacity; MATTHEW D. STONE, U.S. Border

Patrol Agent, in his individual capacity; LUCILA C. GARZA,

U.S. Immigration Inspector, in her individual capacity,

Defendants-Appellants.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(M-00-CV-140)

(M-01-CV-35)

--------------------

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM: *

Borde r Patrol Agents Labadie, Brand, and Stone, and

Immigration Inspector Garza appeal from the denial of their F ED

. R.1 Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics , 403 U.S. 388 (1971).

2 C IV

. P. 12(b)(6) motion to dismiss plaintiff's Bivens 1 suit based on

qualified immunity. Plaintiff brought suit following the death of

her son, Javier Pelayo, who allegedly had a mental disability and

d ied after being wrongfully processed and deported as an ille gal

alien by the defendants. The defendants argue that plaintiff

failed to allege the violation of a constitutional right because

Brand, Stone, and Garza were not personally involved in any alleged

deprivation. They further argue that Labadie was entitled to

qualified immunity because his actions were objectively reasonable.

A Rule 12(b)(6) motion may be granted "only if it appears that

no relief could be granted under any set of facts that could be

proven consistent with the allegations." J ackson v. City

of Beaumont Police Dep't

, 958 F.2d 616, 618 (5th Cir. 1992).

We review de novo a district cour t's ruling on a Rule 12(b)(6)

motion. Shipp v. McMahon , 234 F.3d 907, 911 (5th Cir. 2000).

Qualified immunity shields a government official performing

discretionary functions from civil liability if his conduct

violates no clearly established statutory or constitutional right

of which a reasonable person would have known. E vans v. Ball

, 168

F.3d 856, 860 (5th Cir. 1999); see also Harlow v. Fitzgerald , 457

U.S. 800, 818 (1982). We first ask whether the plaintiff has

alleged the violation of a constitutional right at all. E vans

, 168

F.3d at 860. If so, we next consider whether the constitutional3

right was clearly established and whether the defendant's conduct

was objectively reasonable. Id.

Taking the plaintiff's alleged facts as true, Garza merely

received Javier Pelayo from Customs Inspector Cynthia Sandoval and

handed him over to Brand and Labadie without conducting any status

or immigration check and without speaking to Javier. These facts

do not allege a violation of a constitutional right. At most,

p laintiff has alleged that Garza may have been negligent for

failing to conduct a status check, bu t negligence does not

constitute a constitutional violation. S ee County of Sacramento v.

Lewis , 523 U.S. 833, 849 (1998).

Brand allegedly receive d Javier along with Labadie and

escorted four Mexican nationals to the bridge crossing into Mexico.

Brand is not alleged to have interviewed Javier. Stone is alleged

merely to have been present in the Secondary Inspection area after

Javier was processed by Labadie. These facts do not allege

personal involvement by these defendants in the violation of a

constitutional right. See Thompson v. Steele , 709 F.2d 381, 382

(5th Cir. 1983); see also Creamer v. Porter

, 754 F. 2d 1311, 1316

(5th Cir. 1985).

Plaintiff argues for the first time that Brand and Stone may

have been responsible for inac curate information on immigration

forms completed by Labadie. We will not consider a claim raised

for the first time on appeal. See Leverette v. Louisville Ladder

Co. , 183 F.3d 339, 342 (5th Cir. 1999).4

Labadie interviewed Javier alone in the Secondary Inspection

area only a short time after Sandoval observed Javier as very

disoriented , unable to answer questions, and mumbling noise.

Plaintiff ha s alleged that Javier lacked the capacity to choose

voluntary departure and waive his rights and that his lack of

capacity should have been evident to Labadie. At the least,

plaintiff has sufficiently alleged that Labadie violated Javier’s

d ue process rights. S ee Nose v. Attorney General of the U nited

States

, 993 F.2d 75, 79 (5th Cir. 1993)(waiver of right to

a hearing before an immigration judge must be knowing and

voluntary); 8 U.S.C. §§ 1229a, 1229c(a)(1).

The defendants argue, again for the first time on appeal, that

"other evidence" in the form of deposition excerpts undermines the

due process claim. Because the case was decided on a motion to

dismiss and this evidence was not before the district court, we do

not consider it. S ee United States v. Flores

, 887 F. 2d 543, 546

(5th Cir. 1989); see also Strain v. Harrelson Rubber Co.

, 742 F.2d

888, 889 n.2 (5th Cir. 1984)(appellate court "do[es] not sit to

receive new evidence").

We AFFIRM the district court's denial of the motion to dismiss

Labadie but VACATE the judgment with respect to Garza, Brand, and

Stone, and RE MAND for further proceedings consistent with this

decision.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.5