* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60258

Summary Calendar

_____________________

WILLIAM KENNETH McLAIN,

Plaintiff-Appellee,

versus

CITY OF JACKSON, MISSISSIPPI,

A Municipal Corporation, ET AL.,

Defendants,

and

R. D. JORDAN and AL LEDOUX,

Defendants-Appellants.

_______________________________________________________

Appeal from the United States District Court for

the Southern District of Mississippi

(3:94-CV-557-BrN)

_______________________________________________________

October 1, 1996

Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

William McLain was arrested and detained for almost five

months after Channon Patterson identified him from a photograph
2

lineup as the man who kidnaped and sexually assaulted her. After

the state dropped the case, McLain sued the City of Jackson,

Mississippi, R.D. Jordan and Al Ledoux, alleging causes of action

under 42 U.S.C. § 1983 and state law. Jordan and Ledoux are

police officers who were involved in McLain’s arrest and

interrogation. 

Defendants filed a motion to dismiss or in the alternative

for summary judgment, seeking dismissal of the § 1983 claims. 

Jordan and Ledoux claimed qualified immunity. The court treated

the motion as one for summary judgment and denied it, concluding

that a material issue of fact had been raised on the immunity

defense. The court reserved ruling on the state law claims. 

Jordan and Ledoux bring this interlocutory appeal of the order

insofar as it denied summary judgment based on the qualified

immunity defense.

The denial of a motion for summary judgment ordinarily is

not appealable. An exception allowing for interlocutory appeal

exists where the motion is based on qualified immunity and the

review “turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). 

The district court, in its memorandum opinion and order,

correctly applied the law of qualified immunity in this context. 

The complaint alleges that the defendants wrongfully and

maliciously arrested, detained and assisted in the prosecution of
3

McLain. Qualified immunity does not shield an arresting officer

from liability for objectively unreasonable conduct which results

in an arrest without probable cause. Malley v. Briggs, 475 U.S.

335, 345 (1986); Sanders v. English, 950 F.2d 1152, 1160 (1992). 

Likewise, the officer’s failure to disclose patently exculpatory

evidence, which results in the continued detention or prosecution

of the arrestee, can also give rise to § 1983 liability. Id. at

1162-63.

The district court ruled that disputed issues of fact were

presented which precluded summary judgment based on qualified

immunity. The court considered evidence in the pretrial record

that while Patterson reported that her assailant had a mustache

and below shoulder length hair, McLain was clean shaven and had

short hair. He offered the officers the names of an alibi

witness, whom he claimed was with him at the time of the assault

on Patterson, and his haircutters and business associates who

would verify that he never had shoulder length hair and a

mustache. He claimed that the police never contacted these

witnesses, and rejected his offers to submit to a lie detector

test, truth serum test, hypnosis, and physical lineup. In moving

to drop the charges, an assistant district attorney verified that

McLain was the only person in the photograph lineup who did not

have a mustache and long hair.
4

McLain also claimed in his affidavit that Ledoux harbored an 

intense dislike for him, and manifested this feeling during

several incidents preceding McLain’s arrest, including the making

of false reckless driving charges. McLain claimed that this

animosity stemmed from an incident in which McLain accompanied

Ledoux on a drug raid, and cash seized by Ledoux was not

deposited in the evidence depository. This evidence not only

raises an issue as to Ledoux’s animosity toward McLain, but also

as to Ledoux’s knowledge of McLain’s physical attributes.

Although Patterson testified in her deposition in this civil

case that McLain was in fact the assailant, she also precipitated

the dismissal of the criminal charges by expressing doubts that

she could identify McLain in court, and a desire that the charges

be dropped. There was also some evidence in the record

indicating that Patterson told the police her assailant had blue

eyes, that McLain has brown eyes, and that the offense report box

for “eyes” was left blank.

While appellants point out that an independent grand jury

returned an indictment against McLain for the kidnaping and

assault of Patterson, it is unclear from this record that the

grand jury relied on any information that was not provided by the

police. Further, we held in Sanders that a police officer cannot

escape § 1983 liability merely because he could not unilaterally

terminate the prosecution, in cases where a jury could find that
5

the officer could have influenced the prosecuting attorney into

dropping the charges. 950 F.2d at 1162.

Given this evidence the court concluded, and we agree, that

material issues of fact had been raised on the application of the

qualified immunity defense. Because the “order in question

resolved a fact-related dispute about the pretrial record, namely

whether or not the evidence in the pretrial record was sufficient

to show a genuine issue of fact for trial,” this court has no

jurisdiction to review it via an interlocutory appeal. Johnson

v. Jones, 115 S. Ct. 2151, 2153 (1995).

DISMISSED.