IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50659

ALEJANDRO HERNANDEZ

Plaintiff-Appellee

v.

JESUS TERRONES, et al.

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CV-00222

Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN , District

*

Judge.

PER CURIAM:

**

Defendants Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Antonio

Tabullo, Joe Zimmerly, and Pedro Ocegueda take an interlocutory appeal from

the district court’s partial denial of their Motion for Summary Judgment in an

action brought by Plaintiff pursuant to 42 U.S.C. § 1983. They argue that

Plaintiff’s due process claims are time-barred, and that they are otherwise

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2010

Lyle W. Cayce

Clerk

 District Judge, Southern District of Mississippi, sitting by designation. *

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.

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entitled to qualified immunity on Plaintiff’s § 1983 claims. We decline to

exercise pendent jurisdiction over Defendants’ statute of limitations defense, and

dismiss this part of the appeal. Because we conclude that Defendants’ actions

did not violate Plaintiff’s clearly established constitutional rights, we reverse the

denial of their motion for qualified immunity, and remand to the district court

for entry of summary judgment in favor of Defendants on Plaintiff’s individual

capacity § 1983 claims against them.

I. BACKGROUND

A. Factual Background

1. The Investigation

The undisputed facts, along with the relevant disputed material facts

resolved in Plaintiff’s favor, establish the following chain of events. On May 11,

1994, the body of Robert Cobb, a homeless Vietnam veteran, was discovered in

a desert area by officers of the El Paso Police Department. Cobb had been

stabbed multiple times, and had suffered blunt force trauma to the head. His

body was found next to his vehicle, a 1986 Pontiac Trans-Am automobile. El

Paso Police Sergeant Pedro Ocegueda named Detective Jesus Terrones as the

case agent to investigate Cobb’s homicide.

On May 12, 1994, Detectives Terrones and Sal Dominguez visited

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businesses located in a shopping center near the crime scene. The wife of one of

the proprietors they interviewed advised that Augustin Fabio Carreon

(“Carreon”), the stepson of another nearby business owner, was involved in

gangs and was responsible for the graffiti on the back walls of the shopping

center. Terrones inspected the graffiti and discerned the alias “Gopy,” which he

believed to be gang-related.

Detective Dominguez was sued initially, but was later dismissed without prejudice 1

from this case on October 27, 2008.

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On May 13, 1994, Terrones contacted the El Paso Police Department’s

gang unit to see if “Gopy” was a moniker for a known gang member. He received

information that “Gory,” not “Gopy,” was an alias for Robert Reyes Hernandez.

Upon searching the El Paso Police Department’s records management system,

Terrones discovered that Robert Hernandez and Plaintiff Alejandro Hernandez,

who are not related, had been arrested on a prior occasion for attempting to

shoplift a pair of jeans at a Mervyn’s department store. Detectives Terrones and

Dominguez returned to the shopping center later that day, where they were

approached by Roland Echemendia, an employee of a business located there.

Echemendia informed the detectives that he had witnessed Cobb’s murder.

There is evidence that Echemendia had spoken to detectives previously, but had

not mentioned that he had witnessed the murder.

At approximately 5:30 p.m. that same day, Detectives Guillermo Martinez

and Arturo Ruiz, Jr., transported Echemendia to police headquarters, where he

was interviewed and provided a statement. Echemendia related that at

approximately 1:30 a.m. on May 11, 1994, he was standing outside the shopping

center when he observed three males standing next to a Trans-Am located

outside a nearby veterinary clinic. One individual was a white male with a

beard and grayish-brown hair, who was wearing a striped square pattern shirt

and blue pants. Echemendia identified the second male as Carreon, whom he

had known for approximately three months, although only by sight. Carreon

was the stepson of one of the owners of a shop located in the shopping center.

Echemendia was unable to identify the third male by name, whom he described

as a Latin male in his early twenties. Echemendia had seen Carreon and the

Latin male together prior to the night of Cobb’s murder. Echemendia provided

a physical description of the Latin male and what he was wearing.

According to Echemendia, the three men appeared to be engaged in a drug

transaction. He could see that the white male had a black bag filled with

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balloons, which he believed to contain heroin. He could hear Carreon tell the

white male that he did not have money, but to give them the merchandise.

Carreon then pointed to the veterinary clinic and made a gesture as if to say

someone was in the clinic. The white male told the other two men to get into the

Trans-Am. Carreon sat in the front seat while the Latin male sat in the back

seat. There was also a young female present who did not get into the car. The

Trans-Am drove off at a high rate of speed and stopped in the same area where

Echemendia saw the police the next day.

A short time later, Echemendia heard “moans and groans” coming from

the vicinity of the vehicle. He then saw Carreon and the Latin male running in

the dark. They ran under a street light, approximately four feet from

Echemendia. Echemendia heard Carreon tell the Latin male “you killed him.”

The Latin male then told Carreon to give him his shirt. The Latin male had

blood on his shirt and on his right hand. Echemendia later identified Carreon

from a single photograph, and then identified Plaintiff from a six-person

photographic lineup as the Latin male who was with Carreon that night.

That same day, May 13, 1994, police brought Carreon to headquarters,

where Detective Antonio Tabullo interrogated him. Carreon initially maintained

his innocence. Detective Tabullo confronted Carreon with Echemendia’s

accusatory statement, and at approximately 7:40 p.m. on May 13, 1994, Carreon

signed a statement implicating himself and another man by the nickname of

“Guero” in Cobb’s death. At approximately 11:10 p.m., Carreon identified

Plaintiff from a single photograph as “Guero,” and signed an additional

statement identifying Plaintiff as his accomplice. Carreon later testified, in an

affidavit submitted in connection with Plaintiff’s Response to Defendants’

Motion for Summary Judgment, that Detective Tabullo fabricated this

confession and told Carreon that he would be released if he signed the

statement. According to Carreon, Detective Ruiz placed a single picture of

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Plaintiff in front of him and instructed him that “[t]his is Mr. Hernandez. This

is ‘Guero,’ just sign the back of the picture and we’ll let you go....”

Earlier that day, May 13, 1994, Sergeant Ocegueda had dispatched

officers, including Detective Joe Zimmerly, to pick up Plaintiff as a suspect in the

murder. Detectives arrived at Plaintiff’s residence, where he lived with his

girlfriend, Laura Cortazar, and her sisters, at approximately 5:45 p.m. When

detectives first arrived, neither Plaintiff nor Cortazar were at home. Cortazar’s

sisters told detectives that Cortazar went to pick up Plaintiff from his place of

employment. The detectives initiated surveillance on the residence. Cortazar

subsequently returned without Plaintiff. She advised detectives where Plaintiff

was employed, and informed them that he would arrive home on foot by 7:00

p.m. A patrol unit went to Plaintiff’s employment, and discovered that it closed

at 5:30 p.m.

At 9:00 p.m., Detective Zimmerly, among other officers, obtained consent

from Cortazar to search Plaintiff and Cortazar’s bedroom. Detective Zimmerly

discovered a pair of bloodstained boxer shorts in a white grocery bag. The boxers

were taken as evidence. Detective Zimmerly then interviewed Cortazar and

informed her of the investigation. She stated that she and Plaintiff had been at

home together on the night of May 10, 1994, and that she was not aware of

Plaintiff leaving the house at any point that evening.

At 9:15 p.m., Plaintiff returned to the residence in a tan and brown van,

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and was taken into custody by Detectives Zimmerly, Dominguez, and Martinez.

At 11:30 p.m, Detective Tabullo interviewed Plaintiff, and Detective Zimmerly

advised Plaintiff of the pending charges. Plaintiff told Detective Zimmerly that

this was a case of mistaken identity, that he was at home on the night of May 10,

Plaintiff’s Second Amended Complaint relates that on the evening of Cobb’s murder,

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two women heard noises coming from the desert and saw a tan van pull out of the desert and

speed away. 

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1994, and that he did not know Carreon. Both the police reports and Plaintiff’s

Second Amended Complaint indicate that Plaintiff’s arrest occurred after

Echemendia had provided his statement and identified Plaintiff, and after

Carreon had confessed that he and ‘Guero’ were involved in Cobb’s murder.

However, it appears that Plaintiff was arrested before Carreon identified

Plaintiff as ‘Guero’.

Also on May 13, 1994, Detective Terrones drafted a complaint affidavit to

obtain a warrant for Plaintiff’s arrest. It stated, in part, that:

probable cause and the facts to support the issuance of an arrest

warrant are based upon the following: ...A witness has given a

statement that says that he heard the defendant and co-defendant

arguing with Cobb. Cobb, the defendant, and co-defendant then got

into Cobb’s car and went to the desert area which is very close by.

The witness heard moaning coming from the direction in which

Cobb and the defendant’s [sic] had gone. A short time later the

defendant and co-defendant returned, on foot, to the area where the

witness was and were talking about having done Cobb in.

The complaint affidavit indicated that, in addition to Echemendia’s statement,

it was based upon police reports and Carreon’s statement that Plaintiff had

stabbed Cobb with a pocket knife and struck him on the head with a metal

object.

In the early morning hours of May 14, 1994, Detectives Terrones and Ruiz

transported Carreon and Plaintiff to municipal court where they appeared before

a magistrate judge. Plaintiff contends that while he was being transported with

Carreon, Carreon recanted his identification of Plaintiff to Detectives Terrones

and Ruiz. According to Plaintiff, Detective Terrones ignored Carreon, while

Detective Ruiz told Carreon that he “can’t change it anymore. That’s something

you’re going to have to tell the judge.” Based upon the complaint affidavit, the

magistrate found probable cause existed for both Plaintiff’s and Carreon’s arrest

and detention.

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Later that day, Detectives Terrones and Zimmerly picked up Robert

Hernandez as a suspect in the murder. Hernandez had been previously arrested

and booked into the county jail on May 11, 1994, on outstanding felony theft

warrants. Hernandez agreed to an interview with Detectives Terrones and

Zimmerly, and provided an alibi for his whereabouts on the night of May 10,

1994. According to police records, during the interview Hernandez was asked

if he knew Plaintiff. Hernandez stated that he knew Plaintiff, and knew him to

be a violent person who was involved with drugs. In a subsequent affidavit

dated October 16, 2008, which Plaintiff submitted in connection with his

Response to Defendants’ Motion for Summary Judgment in this case, Robert

Hernandez asserted that the detectives partially fabricated the report. He also

testified that he told the detectives during this May 14, 1994, interview that he

“knew both [Plaintiff] and [Carreon] but [he] knew for a fact that [Plaintiff] and

[Carreon] did not know each other.” Assuming Hernandez did in fact make this

statement, Detective Zimmerly did not include it in the police report.

After the interview with Hernandez, the detectives proceeded to

Hernandez’s parents’ house, where his mother was able to corroborate his alibi.

The detectives searched Hernandez’s room, where they found a pair of shoes

which tested negative for any evidence linking Hernandez to the murder. The

police reports indicate that detectives also checked the clothing and shoes

Hernandez wore at the time he was booked at the county jail on May 11, 1994,

again with negative results.

Also on May 14, 1994, Sergeant Ocegueda received a telephone call from

Dee “Baby” Stewart, who advised that a man named Brandon Hamilton had

bragged to him about having committed Cobb’s murder. Hamilton was located

and brought to police headquarters that same day for an interview. Hamilton

denied involvement in the murder, but admitted that he had spoken with Cobb

a day or two prior to the murder when Cobb had tried to sell Hamilton some

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items from his car. Hamilton acknowledged that he had touched some of the

items in Cobb’s car, as well as the outside of Cobb’s car on the passenger side.

Police obtained Hamilton’s fingerprints, and released him without taking a

statement. Two days later, police learned that Hamilton’s fingerprints were a

positive match with latent fingerprints, which, according to Plaintiff, were found

on the car.

Police did not obtain a formal statement from Stewart until May 27, 1994.

According to Stewart, he was in his apartment on the night of Cobb’s murder

when Hamilton, his neighbor, stopped by at approximately 2:15 a.m. Stewart

observed that Hamilton was breathing hard, his shoes were covered in mud, and

his hands and a small pocket knife he was carrying were covered in blood.

Hamilton allegedly told Stewart that he “wasn’t going to believe it, but [he] just

killed somebody.” Hamilton then related the details of Cobb’s murder to

Stewart, which Plaintiff maintains were corroborated by Cobb’s autopsy and

toxicology reports. According to Plaintiff, Defendants never sought permission

to search Stewart’s apartment for evidence that could substantiate Stewart’s

claims that Hamilton entered his apartment with Cobb’s blood on him.

A few days later, on June 3, 1994, police arrested Hamilton on an

unrelated theft charge, and Detective Dominguez obtained a formal statement

detailing Hamilton’s encounter with Cobb. According to Hamilton, he went to

Stewart’s house the following Sunday, approximately five days after Cobb’s

murder, with a newspaper. The two discussed the murder, which by then had

been reported in the media. He again denied having committed Cobb’s murder.

Hamilton agreed to provide body fluid and blood samples at a later date. He was

then returned to patrol officers for booking on the theft charge. Plaintiff argues

that Defendants never took any additional action to search Hamilton’s

apartment. The police reports indicate, however, that a week later, on June 10,

1994, Detective Dominguez transported Hamilton to a medical center, where

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Hamilton provided body fluid and blood samples, which were submitted for

testing.

2. The Criminal Trial Proceedings

An examining trial was held on May 24, 1994, to determine whether there

was sufficient probable cause to turn Plaintiff’s case over to the grand jury. At

the outset, the magistrate judge acknowledged that, as he learned through his

discussions with Plaintiff’s criminal defense counsel and the prosecuting

attorney, Plaintiff intended to call Carreon as a witness for the purpose of

repudiating his identification of Plaintiff as a co-participant in the murder.

Carreon invoked his Fifth Amendment right not to testify. Plaintiff’s counsel

brought the court’s attention to the Sixth Amendment right to confront

witnesses, as well as the portion of the complaint affidavit stating that probable

cause to arrest Plaintiff was based in part on the “voluntary statement of the

accused,” Carreon. The magistrate judge assured Plaintiff’s counsel that the

prosecution was “going to have to present some other evidence” aside from the

complaint affidavit, and that if the prosecution did make use of Carreon’s

identification of Plaintiff, then Plaintiff would have a right to confront Carreon.

In the end, Carreon’s identification of Plaintiff was never introduced at the

examining trial, and Carreon never testified at that proceeding. Plaintiff

voluntarily testified at the hearing, and claimed that he did not know Carreon.

Based upon Detective Terrones’ testimony describing the crime scene and

Echemendia’s eyewitness testimony, the magistrate judge found that there

existed sufficient probable cause to turn the case over to the grand jury. The

grand jury indicted Plaintiff for Cobb’s murder on June 14, 1994.

Plaintiff’s criminal trial commenced on October 17, 1994. Carreon again

invoked his Fifth Amendment right not to testify, and his identification of

Plaintiff was never introduced at the trial. Laura Cortazar, Fernando Antonio

Garinian, who was a friend of Carreon, and Plaintiff himself, all testified to the

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effect that Plaintiff and Carreon did not know each other. Echemendia also

testified at the trial consistent with the statement he had given the police. The

jury convicted Plaintiff of Cobb’s murder on October 19, 1994, and he was

sentenced to serve ninety-nine years in prison. After serving nearly thirteen

years of his sentence, Plaintiff obtained habeas corpus relief on grounds of

ineffective assistance of counsel. His conviction was overturned, and all charges

against him were eventually dismissed.

B. Procedural History

Plaintiff filed his Complaint in this case on June 20, 2008, against several

El Paso police officers under 42 U.S.C. § 1983, seeking damages for violations of

his Fourteenth Amendment due process rights based upon his allegedly wrongful

arrest, prosecution, and conviction. Plaintiff also asserted claims for conspiracy

under both state law and 42 U.S.C. § 1985, as well as a § 1983 claim against the

City of El Paso. Plaintiff’s specific § 1983 claims against the individual

Defendants, Detectives Jesus Terrones, Guillermo Martinez, Arturo Ruiz, Jr.,

Antonio Tabullo, Joe Zimmerly, and Sergeant Pedro Ocegueda, were ones for

false arrest, malicious prosecution, illegal detention, and wrongful conviction,

and for constitutional violations under Brady v. Maryland, 373 U.S. 83 (1963).

Plaintiff argued that Defendants violated his procedural due process rights

by manipulating identification evidence, conducting impermissibly suggestive

identification procedures, manipulating the outcome of the murder investigation,

deliberately failing to investigate, concealing and intentionally failing to recover

and develop materially exculpatory information and evidence, making a false

determination of probable cause, and manipulating eyewitness identification

evidence by use of threats and coercion. Defendants moved for summary

judgment, on grounds that Plaintiff was judicially estopped from asserting his

claims, that his Fourteenth Amendment due process claims were time-barred,

that Defendants were otherwise entitled to qualified immunity on Plaintiff’s §

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1983 claims, and that Plaintiff had failed to adduce sufficient evidence in

support of his conspiracy claims.

The district court classified Plaintiff’s claims as ones for employing

impermissibly suggestive identifications, conducting a reckless investigation,

and violating Plaintiff’s rights under Brady. The district court concluded that

these claims were not time-barred, and that Plaintiff was not judicially estopped

from asserting them. The district court denied qualified immunity to the

individual Defendants on Plaintiff’s reckless investigation claim, on grounds that

Plaintiff had adduced evidence creating fact questions that Defendants had

“hectored” Carreon into identifying Plaintiff as his accomplice, and later ignored

Carreon’s recantation of that identification. The district court found that

Plaintiff stated a constitutional deprivation based upon an allegedly unduly

suggestive identification procedure employed with Carreon, but granted

qualified immunity on Plaintiff’s claim of impermissibly suggestive identification

as it related to the procedure used in connection with Echemendia’s

identification of Plaintiff. The district court further denied qualified immunity

on Plaintiff’s claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963),

concluding that Defendants had failed to disclose exculpatory evidence. The

district court grounded its denial of qualified immunity on the presence of

material disputes of fact as to Plaintiff’s allegations on these claims. The district

court dismissed Plaintiff’s § 1985 and state law conspiracy claims.

Defendants now take an interlocutory appeal, arguing that Plaintiff’s due

process claims are time-barred, and that they are otherwise entitled to qualified

immunity on Plaintiff’s remaining § 1983 claims for constitutional violations

associated with: (1) the alleged reckless investigation conducted by Defendants

based upon their “hectoring” Carreon into identifying Plaintiff as an accomplice,

failing to record Robert Hernandez’s statement that Plaintiff and Carreon did

not know each other, and failing to investigate Hamilton as a potential suspect;

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(2) the alleged unduly suggestive identification procedure used with Carreon in

his identification of Plaintiff as an accomplice; and (3) the alleged Brady claims

pertaining to the non-disclosure of Robert Hernandez’s statement, the

“hectoring” of Carreon into confessing and identifying Plaintiff as an accomplice,

and Carreon’s recantation of that identification.

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

“District court orders denying summary judgment on the basis of qualified

immunity are immediately appealable under the collateral order doctrine,

notwithstanding their interlocutory character, when based on a conclusion of

law.” Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997)

(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “[W]e are restricted to

determinations of questions of law and legal issues, and we do not consider the

correctness of the plaintiff’s version of the facts.” Id. (quoting Atteberry v.

Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005)). We review 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.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004); see

also Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007) (“In other words, we

may only review the district court’s conclusion that issues of fact are material (a

legal question), but we may not review the conclusion that those issues of fact

are genuine (a fact question).”). “Where factual disputes exist in an interlocutory

appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts

as true.” Kinney, 367 F.3d at 348.

B. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure states that the judgment

sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

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that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. FED. R. CIV. P. 56. The purpose of

summary judgment is to isolate and dispose of factually unsupported claims or

defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also Meyers v.

M/V Eugenio C., 842 F.2d 815, 816 (5th Cir. 1988).

The mere existence of a disputed factual issue does not foreclose summary

judgment. “A dispute about a material fact is ‘genuine’ if the evidence is such

that a reasonable jury could return a verdict for the non-moving party.” Davis

v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir. 2004) (quoting

Hanchey v. Energas Co., 925 F.2d 96, 97 (5th Cir. 1990)). “With regard to

‘materiality,’ only those disputes over facts that might affect the outcome of the

lawsuit under the governing substantive law will preclude summary judgment.”

Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir. 1987). Where “the

summary judgment evidence establishes that one of the essential elements of the

plaintiff’s cause of action does not exist as a matter of law, . . . . all other

contested issues of fact are rendered immaterial.” Topalian v. Ehrman, 954 F.2d

1125, 1138 (5th Cir. 1987).

III. ANALYSIS

A. Defendants’ Statute of Limitations Defense

Defendants argue that the district court erred in determining that

Plaintiff’s Fourteenth Amendment due process claims were not barred by the

statute of limitations. Defendants’ theory is that these claims are related to

false arrest claims under the Fourth Amendment, which are subject to a two

year statute of limitations commencing at the time a claimant becomes detained

pursuant to legal process. In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the

Supreme Court held that “a district court's denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

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decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence

of a final judgment.” Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 508 (5th

Cir. 1992). However, “[t]he Supreme Court has been reluctant to endorse the

exercise of pendent appellate jurisdiction over rulings that, while being related

to the denial of qualified immunity, are not themselves independently

appealable prior to judgment.” Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996)

(citation omitted). Because the denial of a statute of limitations defense is not

immediately appealable, this Court may consider it only if it exercises pendent

jurisdiction. Aldy on Behalf of Aldy v. Valmet Paper Machinery, 74 F.3d 72, 75

(5th Cir. 1996) (“the denial of summary judgment on the grounds of a statute of

limitations is neither a final order. . .nor does it fit within that small category of

claims subject to immediate appeal. . .”).

“Pendant [sic] appellate jurisdiction is only proper in rare and unique

circumstances where a final appealable order is ‘inextricably intertwined’ with

an unappealable order or where review of the unappealable order is necessary

to ensure meaningful review of the appealable order.” Thornton v. Gen. Motors

Corp., 136 F.3d 450, 453 (5th Cir. 1998). Although we did so in an unpublished

opinion, we have determined on at least one occasion that a statute of limitations

defense is not “inextricably intertwined” with the denial of qualified immunity,

so as to give rise to pendent appellate jurisdiction. Jackson v. Mitchell, 54 Fed.

App’x 794, at *1 (5th Cir. 2002). Other circuits have reached the same

conclusion. See Bryson v. Gonzales, 534 F.3d 1282, 1285-86 (10th Cir. 2008)

(finding that “timeliness issues” were not “‘inextricably intertwined’ with the

qualified immunity issue nor necessary to ‘meaningfully review’ it.”); Triad

Assoc., Inc. v. Robinson, 10 F.3d 492, 497 n.2 (7th Cir. 1993) (“[W]e do not find

that these collateral issues are ‘inextricably entwined’ with the appealable

qualified immunity inquiry nor that there are ‘compelling reasons’ for not

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deferring the limitations questions until the end of the lawsuit that would justify

our invoking our rarely appropriate pendent appellate jurisdiction.”).

Based on the foregoing, we conclude that we lack jurisdiction over the

district court’s denial of summary judgment on the statute of limitations defense,

and do not reach the merits of this claim.

B. Plaintiff’s Individual Capacity § 1983 Claims

1. 42 U.S.C. § 1983 and Qualified Immunity

42 U.S.C. § 1983 imposes liability upon any person who, acting under color

of state law, deprives another of federally protected rights. 42 U.S.C. § 1983.

Section 1983 affords a remedy to those who suffer, as a result of state action,

deprivation of rights, privileges, or immunities secured by the Constitution and

the laws of the United States. White v. Thomas, 660 F.2d 680, 683 (5th Cir.

1981). A plaintiff cannot succeed on a § 1983 claim merely by showing any

deprivation of his rights; § 1983 was intended to preserve rights protected by

federal law. Wright v. Collins, 766 F.2d 841, 849 (5th Cir. 1985).

“Qualified immunity balances two important interests– the need to hold

public officials accountable when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, - - U.S - - , 129 S. Ct. 808, 815

(2009). “When a defendant invokes qualified immunity, the burden is on the

plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City

of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (citing Bazan ex rel. Bazan v.

Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001)). This burden cannot be

discharged by conclusory allegations and assertions. Michalik v. Hermann, 422

F.3d 252, 262 (5th Cir. 2005).

Evaluating a claim of qualified immunity involves two inquiries: (1)

whether the plaintiff has alleged a violation of a constitutional right; and (2)

whether that right was clearly established at the time of the alleged misconduct.

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Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part by Pearson, 129 S.

Ct. 808. “[W]hether an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official action generally turns on the

‘objective legal reasonableness’ of the action, assessed in light of the legal rules

that were ‘clearly established’ at the time it was taken.” Wernecke v. Garcia, 591

F.3d 386, 392 (5th Cir. 2009) (citations omitted). A defendant will not be

immune if, on an objective basis, it is obvious that no reasonably competent

officer would have concluded that the defendant’s actions were lawful; but if

officers of reasonable competence could disagree on the issue, immunity should

be recognized. Malley v. Briggs, 475 U.S. 335, 341 (1986). It is within the

discretion of the district court to decide which of the two prongs of the qualified

immunity analysis to address first in light of the circumstances of each case.

Pearson, 129 S. Ct. at 818. Each defendant’s actions must be evaluated

individually in the qualified immunity context. Meadours v. Ermel, 483 F.3d

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417, 421-22 (5th Cir. 2007).

“The scope of clearly established law and the objective reasonableness of

those acts of the defendant that the district court found the plaintiff could prove

at trial are legal issues we review de novo.” Thompson v. Upshur Cnty., 245 F.3d

447, 456 (5th Cir. 2001). Where, however, the district court denies a motion for

summary judgment on the basis of qualified immunity simply because “fact

issues” remain, this Court may “either 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 clarify the order.” Id.

Although courts ought to analyze each defendant’s actions separately to determine the 3

entitlement to qualified immunity of each, we find it unnecessary to do so in this case because

of our conclusion that none of Plaintiff’s claims are legally cognizable or raise a genuine,

material fact issue which could disentitle any of Defendants, whatever their precise

involvement in the investigation, from qualified immunity.

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No. 09-50659

2. Defendants are Entitled to Qualified Immunity on Plaintiff’s

Fourteenth Amendment Claim for Conducting a Reckless

Investigation

The district court denied qualified immunity on this claim, reasoning that

an official may be exposed to liability under § 1983 if he deliberately ignores

exonerative evidence or conducts a reckless investigation. Because Plaintiff had

adduced evidence that, if accepted as true, would establish that Carreon was

pressured into implicating Plaintiff as his accomplice, and because there was

evidence that Defendants ignored Carreon’s recantation of his identification of

Plaintiff, the district court concluded that, resolving all factual disputes in

Plaintiff’s favor, he had stated a cognizable claim for a violation of his rights

based on a reckless investigation. At oral argument, the parties disputed

whether there exists in this Circuit a clearly established constitutional right to

be free from a reckless investigation.

To determine whether a specific claim states the violation of a

constitutional right, we have held that “[s]uch claims of lost constitutional

rights are for violation of rights locatable in constitutional text, and some such

claims may be made under 42 U.S.C. § 1983.” Castellano v. Fragozo, 352 F.3d

939, 953-54 (5th Cir. 2003) (en banc) (finding no freestanding constitutional

right to be free from malicious prosecution). In Sanders v. English, 950 F.2d

1152 (5th Cir. 1992), we recognized that police officers may be liable for illegal

detention under § 1983 for deliberately ignoring exonerative evidence or

conducting a reckless investigation. Sanders, 950 F.2d at 1162. Sanders did

not recognize an independent constitutional claim for being subjected to a

reckless investigation; instead, it acknowledged that conducting a reckless

investigation could support other claims for violations of established

constitutional rights. In that case, we reversed the grant of summary judgment

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No. 09-50659

to the defendant officer on plaintiff’s claim for illegal detention, not reckless

investigation. We explained that:

the plaintiff ha[d] come forward with evidence which, if credited by

the fact-finder, would establish that the defendant knowingly and

willfully ignored substantial exculpatory evidence. A fact-finder

reasonably could conclude that Lt. McCoy deliberately looked the

other way in the face of exonerative evidence indicating that he had

arrested the wrong man: three alibi witnesses deemed credible by Lt.

McCoy, a negative identification by one of the witnesses who helped

compose the police sketch, and a belated identification by the victim

under peculiar circumstances. Lt. McCoy’s deliberate failure to

disclose this undeniably credible and patently exculpatory evidence

to the prosecuting attorney’s office plainly exposes him to liability

under § 1983.

Id. at 1162 (citing Geter v. Fortenberry, 882 F.2d 167 (5th Cir. 1989) (Geter II)).

We found that, under the circumstances, “a jury could find that if Lt. McCoy

had disclosed the exculpatory evidence to the prosecuting attorney’s office,

Sanders would have been released and the charges against him dropped long

before they were.” Id. This supported Sanders’ claim, which was one for illegal

detention, not reckless investigation. See id.

Plaintiff urges that the facts of this case are akin to those in Sanders,

such that Defendants are not entitled to qualified immunity. He contends in his

supplemental brief that “[w]hile Sanders described liability for conducting a

reckless investigation under the rubric of ‘illegal detention,’ this is a distinction

without a difference. Labels do not control.” Indeed, the plaintiff in Sanders

classified one of his causes of action as one for negligent investigation. Id. at

1158 n.10.

This Court instead characterized Sanders’ claim, based on the facts

alleged in the Complaint and those adduced during discovery, as being “not

merely one for negligent investigation leading up to the arrest; the claim is also

one for illegal detention based on the officers’ deliberate failure to recognize,

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No. 09-50659

investigate, and disclose patently exonerative evidence which surfaced

immediately following the arrest.” Id. (emphasis in original). We did not hold

that the negligent investigation and ignoring of exculpatory evidence in Sanders

were freestanding constitutional violations, rather, they were conduct

supporting Sanders’ claims for false arrest and illegal detention. In sum, we

conclude that there was no freestanding, clearly established constitutional right

to be free from a reckless investigation at the time of the events alleged in the

Complaint.

Even if we re-characterize this claim as one cognizable under § 1983, such

as for false arrest or illegal detention (the rights at issue in Sanders), we

4

cannot reach the same conclusion Sanders did under the facts of this case, even

resolving those facts in Plaintiff’s favor. In Sanders, we “beg[a]n by observing

that our circuit recognizes causes of action under § 1983 for false arrest, illegal

detention (false imprisonment) and malicious prosecution.” Id. at 1159. “These

5

causes of action implicate the constitutional ‘guarantees of the fourth and

We assume for purposes of this appeal that any false arrest claim would not be time- 4

barred. 

 In Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), we later concluded 5

that “no such freestanding constitutional right to be free from malicious prosecution exists.”

Id. at 945. We held that “causing [criminal] charges to be filed without probable cause will not

without more violate the Constitution.” Id. at 953. However, we noted that “additional

government acts that may attend the initiation of a criminal charge could give rise to claims

of constitutional deprivation.” Id. 

The initiation of criminal charges without probable cause may set in force

events that run afoul of explicit constitutional protection–the Fourth

Amendment if the accused is seized and arrested, for example, or other

constitutionally secured rights if a case is further pursued. Such claims of lost

constitutional rights are for violation of rights locatable in constitutional text,

and some such claims may be made under 42 U.S.C. § 1983. Regardless, they

are not claims for malicious prosecution and labeling them as such only invites

confusion.

Id. at 953-54; see also Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (citing Castellano

and holding that a malicious prosecution claim is not independently cognizable under § 1983).

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No. 09-50659

fourteenth amendments when the individual complains of an arrest, detention,

and prosecution without probable cause.’” Id. (emphasis added) (quoting

Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988)).

In the context of evaluating the existence of probable cause and whether

an officer is entitled qualified immunity, “we embark on a ‘practical, commonsense [determination] whether given all of the circumstances’ a reasonable

officer could have believed ‘there is a fair probability’ [Plaintiff] committed the

crime charged.” Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)). In considering the totality of the

circumstances, we disregard any false statements in the affidavit supporting

the warrant which are made knowingly and intentionally, or with reckless

disregard for the truth, and consider omissions that may have been critical to

a determination of probable cause. Hale v. Fish, 899 F.2d 390, 400 & n.3 (5th

Cir. 1990) (citing Franks v. Delaware, 438 U.S. 154 (1978)).

Based upon the facts of this case, and construing them in Plaintiff’s favor,

Plaintiff is unable to establish a § 1983 claim for false arrest or illegal

detention. The district court denied qualified immunity on the “reckless

investigation” allegation, on the grounds that there was evidence that

Defendants coerced Carreon into identifying Plaintiff, and then ignored

Carreon’s recantation of that identification. In Mundy v. State of Georgia, 586

F.2d 507 (5th Cir. 1978) (per curiam), we held that impermissibly suggestive

identifications which are used in conjunction with other evidence cannot form

the basis of a § 1983 claim against an officer, where there was ample probable

cause to swear out a warrant for the defendant’s arrest. See id. at 508.

Detective Terrones’ complaint affidavit relied on police reports, a witness

statement (Echemendia), as well as a voluntary statement of the accused

(Carreon). Unlike Sanders, it cannot be said that evidence that Carreon was

pressured into identifying Plaintiff, if made known at the time of the issuance

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No. 09-50659

of the arrest warrant or later disclosed to the district attorney, would have

established that there remained no probable cause for Plaintiff’s arrest,

detention, or prosecution, such that he would have been released. Leaving

aside any misconduct which occurred with respect to Carreon’s identification of

Plaintiff and his later recantation, the record is clear that the magistrate at

Plaintiff’s examining trial was satisfied that Echemendia’s identification

testimony provided a separate and sufficient basis to support a finding of

probable cause. Echemendia provided the only identification testimony at the

6

examining trial, at which Carreon did not testify.

The record further reflects that both the district attorney and defense

counsel were aware of Carreon’s recantation of Plaintiff’s identification prior to

Plaintiff’s examining trial on May 24, 1994. Because this information was

disclosed, this case is even more dissimilar from Sanders, and Plaintiff cannot

support a false arrest or illegal detention claim based on this evidence. And

unlike Sanders, in which the grand jury refused to indict, Plaintiff here was

indicted.

Plaintiff maintains, and the district court found, however, that had

Defendants “disclos[ed] [Robert] Hernandez’s complete statement, then the

value of Echemendia’s eyewitness testimony would have been substantially

reduced, if not obliterated.” We must also consider omissions which may have

been critical to a determination of probable cause.

First, we note that Robert Hernandez’s statement was not obtained until

after Detective Terrones had completed the complaint affidavit to support an

arrest warrant. It was obtained before Plaintiff’s examining trial occurred.

Though Robert Hernandez’s statement might have contradicted Echemendia’s

The district court determined that the identification procedures used with 6

Echemendia, the eyewitness, did not violate the Constitution, and granted qualified immunity

as to this claim.

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testimony, it did not eliminate it. Moreover, this purportedly exonerative

evidence pales in comparison to that present in Sanders, where the defendant

officer failed to disclose: (1) that the identifying victim was related to Sanders,

yet was unable to name Sanders as the assailant until he saw him in a packed

courtroom; (2) a negative identification by a witness who helped to compose the

sketch of the robber; and (3) the existence of three credible alibi witnesses, one

of whom was a former police officer. Under the circumstances of this case, a

reasonable officer or magistrate could have believed that there was a fair

probability Plaintiff committed the crime charged, even taking Robert

Hernandez’s statement into account.

Plaintiff’s contention that qualified immunity should be denied on

grounds that Defendants failed to thoroughly investigate Hamilton as a

potential suspect is similarly unavailing. The record reflects that the

investigation file, which included both Hamilton’s and Stewart’s statements,

was turned over to the district attorney. It is undisputed that the prosecution

maintained an open file policy, such that this information was available to

Plaintiff’s criminal defense attorney. Plaintiff cannot argue that the case

against him would have been dismissed any sooner on grounds that the

prosecuting attorney was unaware of this potential suspect. Whatever flaws

there may have been in Defendants’ handling of Hamilton as a potential

suspect, these were disclosed to Plaintiff prior to trial, and they did not alter

Echemendia’s identification. Under these facts, there was probable cause to

both arrest and detain Plaintiff. We cannot say that no objectively reasonable

officer would have concluded that probable cause did not exist.

In sum, “reckless investigation” was not a clearly established stand alone

constitutional violation at the time of the events in question. Any reliance on

Sanders for this proposition is misplaced. Sanders held that evidence of a

reckless investigation could support cognizable constitutional claims, such as

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No. 09-50659

ones for false arrest or illegal detention, under § 1983. Even if we recharacterize Plaintiff’s “reckless investigation” claim as one for illegal

detention, or for some other cognizable constitutional violation, such as false

arrest, because the exonerative evidence at issue would not have eliminated

“the only thread of evidence tying [Plaintiff] to the crime,” Sanders, 950 F.2d at

1164, and because the incriminating evidence which remained was sufficient to

support the existence of probable cause, Plaintiff cannot demonstrate the

violation of his constitutional right to be free from false arrest or illegal

detention. Based on the foregoing, and because there was no clearly established

constitutional right to be free from a reckless investigation at the time of the

events in question, Defendants are entitled to qualified immunity on this claim.

3. Defendants are Entitled to Qualified Immunity on Plaintiff’s

Fourteenth Amendment Claim for Suggestive Identification

The Second Amended Complaint alleges that Defendants violated

Plaintiff’s Fourteenth Amendment due process rights by “[m]anipulating

identification evidence and conducting irreparably harmful and impermissibly

suggestive identification procedures later presented as evidence against, and

used to convict, the innocent Plaintiff.” The district court denied qualified

immunity on this claim, finding that material fact questions existed as to

whether an unduly suggestive identification procedure was used to induce

Carreon to identify Plaintiff. Defendants argue that the district court erred on

grounds that there can be no Fourteenth Amendment due process violation

where the alleged unduly suggestive identification was not used at trial, and

where there existed an independent basis for a finding of probable cause in the

complaint affidavit, as well as at the examining trial.

The United States Supreme Court has held that the determination as to

whether a defendant’s Fourteenth Amendment due process rights are violated

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by the admission of evidence at trial derived from unnecessarily suggestive

identification procedures depends upon the totality of the circumstances

surrounding those procedures. Stovall v. Denno, 388 U.S. 293, 302 (1967),

overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987). In

Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court described the

standard under the Due Process Clause as one of fairness, and identified the

interest protected in Stovall as evidentiary. Manson, 432 U.S. at 113. The

Court noted that “a suggestive preindictment identification procedure does not

in itself intrude upon a constitutionally protected interest,” id. at 113 n.13, and

held that “reliability is the linchpin” in determining the admissibility of such

identification testimony, id. at 114. In assessing the reliability of an

identification and evaluating whether there exists a high likelihood of

misidentification, a number of factors should be considered. Id. (citing Neil v.

7

Biggers, 409 U.S. 188, 199-200 (1972)). This analysis is in turn determinative

of whether the evidence should be permitted to go to the jury. See Biggers, 409

U.S. at 201. Both Stovall and Manson reflect “the concern that the jury not

hear eyewitness testimony unless that evidence has aspects of reliability.”

Manson, 432 U.S. at 112 (emphasis added).

Several circuits have interpreted Stovall and Manson to mean that, in the

context of unduly suggestive lineups, no due process violation occurs unless a

defendant’s right to a fair trial is impaired. See Pace v. City of Des Moines, 201

F.3d 1050, 1055 (8th Cir. 2000); Hensley v. Carey, 818 F.2d 646, 649 (7th Cir.

1987); Antonio v. Moore, 174 Fed. App’x 131, 135-36 (4th Cir. 2006). In Hensley,

the Seventh Circuit concluded that Stovall and Manson, “establish procedural

These factors “include the opportunity of the witness to view the criminal at the time

7

of the crime, the witness’ degree of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the confrontation, and the time between the

crime and the confrontation.” Manson, 432 U.S. at 114. 

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No. 09-50659

safeguards to insure that only reliable identification evidence is admitted at

trial. Stovall and [Manson] do not establish a right to an impartial lineup as

long as the evidence gained through that lineup is not used at trial.” Hensley,

818 F.2d at 650. Hensley held that “[t]he rule against admission of evidence

from unnecessarily suggestive lineups is a prophylactic rule designed to protect

a core right, that is the right to a fair trial, and it is only the violation of the core

right and not the prophylactic rule that should be actionable under § 1983.” Id.

at 649; see also Pace, 201 F.3d at 1055 (“The jurisprudential doctrine described

in Manson..., against the admission of unduly suggestive lineups is only a

procedural safeguard, and does not establish a constitutional right to be free of

suggestive lineups.”). We find this reasoning persuasive.

Plaintiff relies on Geter v. Fortenberry, 882 F.2d 167 (5th Cir. 1989) (Geter

II), which found that police employed unduly suggestive identification

procedures where they “insist[ed] that [witnesses] pick an individual from photo

lineups, prodd[ed] the witnesses to select another picture when they had chosen

incorrectly, and bec[ame] hostile. . .when a witness refused to cooperate.” Geter,

882 F.2d at 170. Relying on Geter II, this Court recently concluded in Good v.

Curtis, 601 F.3d 393 (5th Cir. 2010), that “a police officer’s knowing efforts to

secure a false identification by fabricating evidence or otherwise unlawfully

influencing witnesses is not entitled to qualified immunity.” Good, 601 F.3d at

398.

In Good, we also concluded that “[a] plaintiff need not undertake the

impossible task of satisfying the [Manson] test where an officer’s intentional

conduct was designed to artificially produce precisely the sort of witness

certainty that otherwise justifies the admission of suggestive lineups and the

criminal defendant has been exonerated in the meantime.” Id. at p. 401

(emphasis added). In Good, the officer deliberately framed the plaintiff for a

crime he clearly had not committed, as DNA evidence conclusively established

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that the defendant was not guilty of the crime of which he had been convicted.

Id. at 397, 398. Based upon this conclusive exonerative evidence, any positive

identification of the defendant had to be incorrect. Thus, there was no need to

determine whether the lineup suffered from a high “likelihood of

misidentification,” as required by Manson. Id. at 399.

However, it is clear from both Geter II and Good, that the improperly

procured identifications at issue were introduced at the respective plaintiffs’

criminal trials in both cases. Such is not the situation here. Geter II and Good

are thus factually distinguishable from the present dispute in this important

respect. We do not read either Geter II or Good as eroding the notion that, in

order for there to be a due process violation in the context of an unduly

suggestive identification procedure, the defendant’s right to a fair trial must be

impaired.

Turning to the case at bar, it is undisputed that Carreon invoked his Fifth

Amendment right against self-incrimination, and refused to testify at both

Plaintiff’s examining trial and trial. His identification of Plaintiff was not the

sole basis for the probable cause determination in seeking Plaintiff’s arrest and

detention. It was never introduced at either the examining trial or trial, and

did not serve as the basis for his continued detention or eventual conviction at

trial. Plaintiff’s due process rights were therefore not violated, whether

Carreon’s pretrial identification of Plaintiff was either unduly suggestive or

intentionally manipulated, as the identification was not “clearly critical” to the

probable cause determination supporting Plaintiff’s arrest and detention, nor

was it ever admitted into evidence at trial.

In 1994, no violation of a clearly established constitutional right occurred

where a defendant was afforded a fair trial not impaired by the admission of

evidence derived from an unduly suggestive identification procedure.

Defendants are entitled to qualified immunity on this claim.

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4. Defendants are Entitled to Qualified Immunity on Plaintiff’s

Fourteenth Amendment Claim for Withholding Exculpatory

Evidence in Violation of Brady v. Maryland, 373 U.S. 83

(1963)

Defendants appeal the district court’s determination that Defendants

“cannot avail themselves of qualified immunity because they failed to disclose

Brady exculpatory evidence relating to (1) the lack of association between

Carreon and Plaintiff, (2) the collusive origin of Carreon’s confession and

identification, and (3) Carreon’s presumed recantation.”

Under Brady v. Maryland, 373 U.S. 83 (1963), the government must

disclose material, exculpatory evidence to a criminal defendant. United States

v. Walters, 351 F.3d 159, 169 (5th Cir. 2003) (citing Brady, 373 U.S. at 87). “A

valid Brady complaint contains three elements: (1) the prosecution must

suppress or withhold evidence, (2) which is favorable, and (3) material to the

defense.” United States v. Lanford, 838 F.2d 1351, 1355 (5th Cir. 1988) (quoting

United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)). Impeachment as well

as exculpatory evidence fall within Brady’s purview. United States v. Bagley,

473 U.S. 667, 676 (1985).

“Evidence is not ‘suppressed’ if the defendant ‘knows or should know of

the essential facts that would enable him to take advantage of it.’” United States

v. Runyan, 290 F.3d 223, 246 (5th Cir. 2002) (citing United States v. Shoher, 555

F. Supp. 346, 352 (S.D.N.Y. 1983)); see also United States v. Brown, 628 F.2d

471, 473 (5th Cir. 1980) (“[W]hen information is fully available to a defendant

at the time of trial and his only reason for not obtaining and presenting the

evidence to the Court is his lack of reasonable diligence, the defendant has no

Brady claim.”). With respect to “materiality,” “[t]he evidence is material only

if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A ‘reasonable

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probability’ is a probability sufficient to undermine confidence in the outcome.”

Bagley, 473 U.S. at 682. “The materiality of Brady material depends almost

entirely on the value of the evidence relative to the other evidence mustered by

the state.” Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated, 503 U.S.

930 (1992), abrogated on other grounds, Stringer v. Black, 503 U.S. 222 (1992).

Defendants argue that in 1994, Brady did not extend to police officers.

They cite Mowbray v. Cameron Cnty., 274 F.3d 269 (5th Cir. 2001), in support

of their position. In Mowbray, officers failed to provide exculpatory evidence to

the defendant’s counsel. Although this Court observed that “our research

reveals, no case extending Brady to police officers...,” we also stated that

“Mowbray does not allege, nor do the facts support a finding, that [the officers]

elicited false evidence and deliberately concealed exculpatory evidence from all

parties, including the prosecution.” Mowbray then cited Geter v. Fortenberry,

849 F.2d 1550 (5th Cir. 1988) (Geter I), which in turn cited Brady, and held

“that a police officer cannot avail himself of a qualified immunity defense if he.

. .deliberately conceals exculpatory evidence, for such activity violates clearly

established constitutional rights.” Geter, 849 F.2d at 1559. Based on the

foregoing, it was clearly established law in 1994 that Brady applied to police

officers on facts such as those presented in this case. We now turn to each of

Plaintiff’s alleged Brady violations.

a. The Lack of Association Between Carreon and Plaintiff

The district court denied qualified immunity on this point on the basis

that there was a question of fact as to whether Robert Hernandez had provided

Detectives Terrones and Zimmerly with a statement that Plaintiff and Carreon

did not know each other, which Zimmerly did not memorialize in his report. In

determining that Hernandez’s statement was material, the district court noted

that “[s]ince there was no physical evidence linking Plaintiff to Cobb’s murder,

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the entire criminal case against Plaintiff mainly consisted of Echemendia’s

eyewitness account.” It stated that,

if Defendants had disclosed Hernandez’s statement that Plantiff and

Carreon had never met, then Echemendia’s eyewitness statement

implicating both to Cobb’s murder would have been undermined.

Moreover, the demise of Echemendia as a credible prosecution

witness would have done more than just nullify his testimony; it

would also have served to discredit generally the police methods

employed in assembling the case against Plaintiff, calling into

question the veracity of testimony of other prosecution witnesses.

Hernandez v. City of El Paso, 662 F. Supp. 2d 596, 619 (W.D. Tex. 2009).

Defendants argue on appeal that “Terrones and Zimmerly did not conceal

evidence that Alejandro Hernandez and Augustine Carreon did not know each

other because Juan Fernandez, [sic] Antonio Garinian, Laura Cortazar and

Alejandro Hernandez all testified to that fact at the murder trial of Alejandro

Hernandez.” Essentially, Defendants’ argument is that Robert Hernandez’s

testimony was cumulative, such that its non-disclosure did not violate Brady.

Unfortunately, the district court was deprived of the opportunity to address the

question of whether Robert Hernandez’s testimony was cumulative because

Defendants never raised the issue below. Despite Defendants’ failure to

properly place this issue before the district court, because our review is de novo

we will address it here.

The failure to disclose evidence which is cumulative does not present a

Brady violation. Allridge v. Scott, 41 F.3d 213, 218 (5th Cir. 1994). Here,

Fernando Antonio Garinian testified at Plaintiff’s trial that he and Carreon

were friends, but that he had never seen Plaintiff before. Laura Cortazar,

Plaintiff’s girlfriend, testified that she did not know Carreon and had only heard

of him in connection with this case. Plaintiff himself testified that he did not

know Carreon.

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By affidavit, Robert Hernandez testified in this case that he “told the

detective that ... I knew both [Plaintiff] and [Carreon] but I knew for a fact that

[Plaintiff] and [Carreon] did not know each other.” This statement is largely

cumulative of the testimony presented at the criminal trial. See Andrews v.

Collins, 21 F.3d 612, 626 & n.29 (5th Cir. 1994) (testimony that is, in the main,

cumulative is not material for purposes of Brady); see also Edmond v. Collins,

8 F.3d 290, 294 (5th Cir. 1993). If this statement could have lent any value to

Plaintiff’s defense, it was at most incremental. Incremental impeachment value

of suppressed evidence, however, does not raise a reasonable probability of a

different result at trial. See Drew v. Collins, 964 F.2d 411, 419-20 (5th Cir.

1992); see also Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005). Because

Plaintiff and two other witnesses did testify at the trial as to the lack of

association between Carreon and Plaintiff, we cannot say that Robert

Hernandez’s testimony raises a reasonable probability of a different result at

Plaintiff’s trial.

We are not persuaded that Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985),

which was cited below, changes the result. In Lindsey, the plaintiff appealed

the denial of his petition for a writ of habeas corpus, alleging a Brady violation

in connection with his underlying criminal trial. There, the prosecutor failed

to disclose a statement made by an eyewitness shortly after the murder that he

did not see the perpetrator’s face, and would therefore be unable to make a

positive identification. We concluded that the non-disclosed statement would

have “cast serious doubt” on the testimony of that eyewitness, who made a

positive identification of the plaintiff at his criminal trial. Though the

testimony of a second eyewitness remained untouched by the statement, we

found a Brady violation. We concluded that:

our experience at the bar has been that positive identification by

two unshaken witnesses possesses many times the power of such an

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identification by one only, and that the destruction by crossexamination of the credibility of one of two crucial witnesses–even

if the other remains untouched–may have consequences for the case

extending far beyond the discrediting of his own testimony.

Lindsey, 769 F.2d at 1042. Unlike Robert Hernandez’s statement here, the nondisclosed statement at issue in Lindsey was not cumulative of other evidence.

Finally, although not dispositive of this issue, we note that Plaintiff’s criminal

defense counsel knew or should have been aware of Robert Hernandez’s identity

prior to the trial based on the district attorney’s open file policy. Robert

Hernandez was not called to testify as a witness by either side. The record is

silent on what attempts, if any, Plaintiff’s defense counsel made to interview

Robert Hernandez prior to trial. In any case, at a minimum, his identity as a

potential witness was, or should have been, known to Plaintiff.

In sum, we conclude that no Brady violation occurred with regard to the

alleged non-disclosure of Hernandez’s cumulative statement.

b. The Collusive Origin of Carreon’s Confession and Identification

The district court concluded that non-disclosure of the alleged collusive

origin of Carreon’s confession and identification presented fact questions as to

whether there was a Brady violation. Plaintiff argues that Defendants have not

briefed the issue, and have therefore waived it on appeal. Defendants have,

however, argued that the district court erroneously denied summary judgment

on Plaintiff’s Brady claim. Where the district court denies a motion for

summary judgment on the basis of qualified immunity because “fact issues”

remain, this Court may “either 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 clarify the order.” Thompson v. Upshur

County, TX, 245 F.3d 447, 456 (5th Cir. 2001). In the interest of judicial

economy, we elect to “scour the record” and address this claim.

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Accepting Plaintiff’s version of the facts as true, the record reflects that

Carreon was strong-armed into identifying Plaintiff as his accomplice. Even if

this information was suppressed, we do not see how its disclosure could have

impacted the result of the criminal proceeding, since it is undisputed that

Carreon did not testify at either Plaintiff’s examining trial or his trial, and that

Carreon’s identification of Plaintiff was never introduced at either proceeding.

In his supplemental brief filed after oral argument, Plaintiff argues that this

evidence is material on grounds that it served as the basis for his conviction.

He maintains that the only reason his photograph was included in the sixperson photo array shown to Echemendia was because Carreon had been earlier

coerced into identifying him as an accomplice. Thus, had he “known about the

misconduct surrounding Carreon’s identification, Echemendia would have had

no credibility as a witness.” We are not persuaded by this reasoning.

Plaintiff does not argue that Echemendia was coerced into identifying

Plaintiff, but instead argues that his picture would not have been included in

the six-person photo array presented to Echemendia had the misconduct

surrounding Carreon’s identification not occurred. Accepting Plaintiff’s version

of the facts as true, any misconduct in selecting Plaintiff’s photograph for

inclusion in the photo array is insulated by Echemendia’s independent

identification of Plaintiff from the lineup, and does not raise a reasonable

probability of a different outcome at trial.

Moreover, the district court concluded that the six-person photographic

lineup shown to Echemendia was not impermissibly suggestive, and granted

qualified immunity on this claim. Hernandez, 662 F. Supp. 2d at 611-12. Thus,

the constitutionality of the identification procedures employed in Echemendia’s

identification of Plaintiff are not before us on this appeal, and this Court lacks

jurisdiction to consider them.

In sum, no Brady violation occurred with respect to this evidence.

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c. Carreon’s Recantation

The district court found that the alleged non-disclosure of Carreon’s

recantation of his identification of Plaintiff as his accomplice to Detectives

Terrones and Ruiz would violate Brady. The record reflects, however, that

Plaintiff was present and overheard Carreon’s recantation at the time it was

made. It is also clear that Plaintiff’s criminal defense counsel knew of the

presumed recantation before his trial in October 1994, and at least as early as

May 24, 1994, the date of Plaintiff’s examining trial.

“Brady claims involve ‘the discovery, after trial of information which had

been known to the prosecution but unknown to the defense.’” Lawrence v.

Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (emphasis added); see also United

States v. Fogg, 652 F.2d 551, 558 (5th Cir. 1981). In United States v. Brown,

628 F.2d 471 (5th Cir. 1980), this Court stated:

regardless of whether the evidence was material or even

exculpatory, when information is fully available to a defendant at

the time of trial and his only reason for not obtaining and

presenting the evidence to the Court is his lack of diligence, the

defendant has no Brady claim....In no way can information known

and available to the defendant be said to have been suppressed by

the Government.

Id. at 473. Based on the facts of this case, and the law as it existed in 1994,

there was no Brady violation with respect to the alleged suppression of this

evidence, as Plaintiff and his counsel were clearly aware of Carreon’s

recantation prior to trial. Moreover, because Carreon did not testify at

Plaintiff’s trial, and because Carreon’s identification of Plaintiff was never

introduced, we do not see how disclosure of Carreon’s recantation of his

identification of Plaintiff could have impacted the result of the criminal

proceeding in any significant way.

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Resolving all factual disputes in Plaintiff’s favor, he has not shown the

violation of a clearly established constitutional right on his Brady claim.

Defendants are therefore entitled to qualified immunity.

IV. CONCLUSION

We decline to exercise pendent jurisdiction over the district court’s denial

of summary judgment on the statute of limitations issue. Plaintiff has not

established the violation of any clearly established constitutional rights on his

individual capacity § 1983 claims as the law existed in 1994. Defendants Jesus

Terrones, Guillermo Martinez, Arturo Ruiz, Jr., Antonio Tabullo, Joe Zimmerly,

and Pedro Ocegueda, are therefore entitled to qualified immunity on Plaintiff’s

remaining individual capacity § 1983 claims against them. Accordingly, we

REVERSE the district court’s denial of qualified immunity, and REMAND for

entry of summary judgment in Defendants’ favor on Plaintiff’s 42 U.S.C. § 1983

claims against Defendants in their individual capacities. We DISMISS the

appeal as to the statute of limitations defense for lack of jurisdiction.

REVERSED in part, DISMISSED in part, and REMANDED.

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