IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30062

DARRIN HILL, individually and by and through his next friend Marie Hill; 

MARIE HILL, 

 Plaintiffs - Appellees

v.

NEW ORLEANS CITY; RONAL SERPAS, in his official capacity as 

Superintendent of the New Orleans Police Department; ARNESTA TAYLOR, 

in his official capacity as former Superintendent of the New Orleans Police 

Department; CATHEY CARTER, New Orleans Police Department Detective; 

ALLEN GRESSERT, New Orleans Police Department Detective; ANTOINE 

SAACKS, JR., New Orleans Police Department Assistant 

Superintendent/Deputy Chief; JOSEPH HEBERT, New Orleans Police 

Department Officer; HOWARD LEWIS, New Orleans Police Department 

Officer; ROBERT HAAR, New Orleans Police Department Officer; DANIEL 

WAGUESPACK, New Orleans Police Department Crime Lab Criminalist, 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-2463

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

March 15, 2016

Lyle W. Cayce

Clerk

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PER CURIAM:*

Plaintiff-Appellee Darrin Hill spent nearly twenty years in state custody 

for rape and kidnapping before DNA evidence conclusively proved his 

innocence. After his release, Hill and his mother brought the instant suit 

against the City of New Orleans and various current and former employees of 

the New Orleans Police Department, raising both federal and state claims. 

The Defendants-Appellants moved for summary judgment on the basis of 

qualified immunity, which the district court granted in part, but denied as to 

Hill’s Fourteenth Amendment due process claim. The defendants now appeal 

the district court’s refusal to grant summary judgment on that claim.

The district court concluded that genuine disputes of material fact exist 

as to whether all of the individual defendants suppressed evidence calling into 

question Hill’s guilt and were involved in implementing unduly suggestive 

lineup procedures. The record evidence the district court cited in support of its 

conclusions, however, was largely limited to specific actions or inactions by one 

defendant, Detective Cathey Carter. For the reasons described below, we 

DISMISS this appeal as to Detective Carter but REMAND to the trial court for 

further consideration as to the remaining individual defendants.

BACKGROUND

On the evening of July 1, 1992, E.V. and her boyfriend, G.T.,1 were 

sitting on the bank of Lake Pontchartrain in New Orleans when they were 

accosted by a man we now understand to be Derrick Woodberry. At the time, 

Woodberry, a black male, was nearly 18 years old, 6’ 1” tall, and weighed 180 

pounds. Woodberry pulled out a handgun and demanded G.T.’s wallet and car 

 

* 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.

1 The victims’ full names have been omitted to preserve their privacy.

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keys. When G.T. said he did not have his wallet on him, Woodberry instructed 

G.T. to walk into the lake and then throw over his car keys, threatening to kill 

E.V. if he refused. G.T. complied. Woodberry then forced E.V. at gunpoint to 

drive him in G.T.’s car to a dark location behind a supermarket, where he 

proceeded to anally rape her. Afterward, Woodberry exited G.T.’s car and left 

in a red or burgundy Nissan driven by an unknown accomplice2 who had 

followed Woodberry and E.V. to the scene.

E.V. promptly reported the rape and Officers Harold Lewis and Robert 

Haar of the New Orleans Police Department (“NOPD”) were first to arrive on 

the scene, followed shortly by Detective Cathey Carter. Det. Carter spoke with 

both victims, who related what had happened. Det. Carter’s handwritten notes 

indicate that G.T. described the perpetrator as 19 to 21 years old, 6’ to 6’1” tall, 

180 pounds, with brown skin and a thin build, and also indicated that G.T.

would be able to identify the perpetrator. Det. Carter’s contemporaneous notes 

do not indicate whether E.V. was able to describe her attacker or whether she 

stated she would be able to identify him.3 E.V. was transported to a hospital 

where physical evidence was collected in a rape kit. 

The next day, Det. Carter learned from E.V. that, following the rape, 

G.T. had found an unfamiliar checkbook in his car, bearing the name “Darren 

Hill” and the address “4860 Camelia Street.” Det. Carter was assigned as the 

lead investigator of the crimes against E.V. and G.T., and Det. Allen Gressert 

was assigned to assist her. A search for the name “Darren Hill” apparently led 

Det. Carter to the plaintiff, Darrin Hill.4 At the time, Hill was 26 years old, 5’ 

 

2 The identity of the accomplice has never been determined. There appears to be no 

evidence that Darrin Hill was the accomplice.

3 The official police report, however, indicates that E.V. stated she would be able to 

identify her assailant and makes no mention of G.T. saying the same. 

4 Although the plaintiff’s first name is spelled with an “i” rather than an “e,” he does 

not contest that the checkbook was for a bank account in his name. Hill, who is mentally 

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7” tall, and weighed 135 pounds. Both E.V. and G.T. were shown photographic 

lineups that included Hill and five fillers, although the content and 

circumstances of those lineups are disputed by the parties. In any event, E.V. 

picked out Hill from the photo array and G.T. now claims that he did as well. 

Det. Carter investigated the address on the checkbook to some extent. 

She determined that the apartment at that address was unoccupied. According 

to the plaintiffs, however, the adjoining apartment of the two-unit dwelling 

was publicly listed at the time as being occupied by the sister of Derrick 

Woodberry, the actual perpetrator. There is no evidence Det. Carter learned 

this information. Det. Carter did order a canvas of the surrounding area, 

which led to a sighting of a red Nissan matching the description of the 

perpetrator’s getaway vehicle on the night of the crime, but this lead appears 

not to have been pursued further.

On July 17, 1992, Det. Carter applied for and obtained a warrant to 

arrest Hill on charges of aggravated rape and second degree kidnapping based 

on E.V.’s identification. Hill turned himself in and was indicted for aggravated 

rape, second degree kidnapping, attempted aggravated crime against nature, 

and two counts of armed robbery. A later motion to suppress E.V.’s

identification was denied. Due to Hill’s mental illness, he was deemed 

incompetent to assist in his own defense and to stand trial, but remained in

state custody for the next seven years. Hill unwaveringly claimed that he was 

innocent. On February 11, 1999, Hill was finally tried and found not guilty by 

reason of insanity, which in Louisiana requires a finding beyond a reasonable 

doubt that the defendant committed the offense charged but that he was 

 

impaired, explained to an NOPD investigator that several acquaintances, including one 

named Derrick, had convinced him to open a checking account in his own name but for their 

collective use.

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criminally insane.5 The district court noted that such an adjudication is the 

“functional equivalent of a conviction.” Hill remained in state custody until

April 27, 2012, when the Orleans Parish Criminal District Court ordered that 

he be released following a test of the rape kit, which showed definitively that 

Derrick Woodberry had committed the rape and robbery, and that Hill was 

factually innocent of the crimes. 

On April 25, 2013, Hill and his mother brought the instant suit pursuant 

to 42 U.S.C. § 1983, naming as defendants (1) the City of New Orleans; (2) 

NOPD Detective Cathey Carter; (3) NOPD Detective Allen Gressert; (4) NOPD 

Detective Joseph Hebert; (5) NOPD Officer Howard Lewis; (6) NOPD Officer 

Robert Haar; (7) NOPD Assistant Superintendent and Deputy Chief Antoine 

Saacks; (8) NOPD Superintendent Ronal Serpas; (9) former NOPD 

Superintendent Arnesta Taylor; (10) NOPD Crime Lab Criminalist Daniel 

Waguespack; and (11) John and Jane Doe NOPD officers and supervisors. Hill 

claimed that the Appellants violated his rights under the First, Fourth, and 

Fourteenth Amendments of the United States Constitution, as well as Title II 

of the Americans with Disabilities Act. Hill also brought several Louisiana 

state law claims. Hill’s mother alleged a deprivation of her right to familial 

association and loss of consortium. Hill later voluntarily dismissed his federal 

claims against the City. The defendants moved for summary judgment on the 

basis of qualified immunity, arguing that Hill’s Fourth and Fourteenth 

Amendment claims failed because there had been probable cause to arrest him. 

 

5 The defendants place a great deal of stress on the lack of evidence in the record 

regarding the details of the judicial proceeding that resulted in Hill being found not guilty by 

reason of insanity. They argue that the record does not definitively establish whether Hill 

went to trial. The district court found, however, that Hill was tried. In any event, it is 

uncontested that Hill has consistently maintained his innocence and that he was found not 

guilty by reason of insanity on February 11, 1999, resulting in him spending the next thirteen 

years in state custody. 

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The district court granted summary judgment in favor of the defendants on 

Hill’s Fourth Amendment6 and Americans with Disabilities Act claims, as well 

as his mother’s federal claims, but denied summary judgment on Hill’s 

Fourteenth Amendment claim and both plaintiffs’ state law claims. Hill v. 

New Orleans City, No. CIV.A. 13-2463, 2015 WL 222185, at *18 (E.D. La. Jan. 

13, 2015).

Regarding Hill’s Fourteenth Amendment claim, the district court held 

that Hill had offered sufficient evidence to create genuine disputes of material 

fact as to whether (1) the “[d]efendants employed an unduly suggestive lineup 

procedure to obtain a false identification” of Hill; (2) the defendants suppressed 

evidence calling into question the credibility of E.V.’s identification of Hill; (3) 

G.T. was shown a photographic lineup and, if so, the defendants suppressed 

evidence that G.T. identified someone other than Hill; (4) “Det. Carter 

deliberately suppressed potentially exculpatory evidence relating to the lack of 

connection between Darrin Hill and the address listed on the checkbook 

recovered from G.T.’s car”; and (5) “Det. Carter and/or other defendants

deliberately suppressed” the DNA evidence that ultimately led to Hill’s 

exoneration. Id. at *6-9.

The defendants filed the instant appeal, seeking interlocutory review of 

the district court’s denial of their motion for summary judgment on Hill’s 

Fourteenth Amendment claim.7

 

6 The district court determined that Hill had presented sufficient evidence to create a 

triable issue on whether his arrest violated his right to be free from arrest without probable 

cause, but ultimately granted summary judgment because the claim was time-barred.

7 The defendants have not appealed the district court’s denial of summary judgment 

on Darrin and Marie Hill’s state law claims, and Darrin and Marie Hill have not crossappealed the claims on which the district court granted summary judgment.

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JURISDICTION AND STANDARD OF REVIEW

“The denial of a motion for summary judgment based on qualified 

immunity is immediately appealable under the collateral order doctrine to the 

extent that it turns on an issue of law.” Lytle v. Bexar Cty., 560 F.3d 404, 408 

(5th Cir. 2009) (quoting Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir.

2004)). “Where the district court has denied summary judgment on the ground 

that material issues of fact exist as to the plaintiff’s claims, this court lacks 

jurisdiction to review the court’s determination that a genuine fact issue 

exists.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007) (citing Kinney v. 

Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc)). “Thus, a defendant 

challenging the denial of a motion for summary judgment on the basis of 

qualified immunity must be prepared to concede the best view of the facts to 

the plaintiff and discuss only the legal issues raised by the appeal.” Id.

(citation omitted). We may not review “the correctness of the plaintiff’s version 

of the facts.’” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 

2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). In other words, 

we review the materiality, not the genuineness, of the fact disputes found by 

the district court. Freeman, 483 F.3d at 410; Ramirez v. Martinez, 716 F.3d 

369, 373 (5th Cir. 2013). We review de novo the district court’s denial of a

motion for summary judgment based on qualified immunity. Kovacic v. 

Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). 

DISCUSSION

The defendants’ principal argument on appeal is that the district court 

erred in its factual determinations. Specifically, Appellants challenge the 

district court’s determinations that Hill offered enough evidence to create a 

genuine dispute of material fact as to whether (1) the defendants used a 

suggestive lineup procedure to obtain a false identification of Hill; (2) the 

defendants failed to disclose evidence relating to the credibility of E.V.’s 

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identification of Hill when they applied for an arrest warrant; (3) the 

defendants used a suggestive lineup with G.T. or suppressed evidence that 

G.T. selected someone other than Hill; (4) Det. Carter suppressed evidence that 

Hill did not reside at the address listed on the checkbook and that a red Nissan 

had been observed in the vicinity of that address; and (5) the defendants

suppressed the laboratory analysis of the rectal swabs collected from E.V.

As a general matter, as discussed supra, we do not have jurisdiction on 

an interlocutory appeal from a denial of summary judgment to determine 

“whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” 

Johnson v. Jones, 515 U.S. 304, 319-20 (1995); see also Good v. Curtis, 601 F.3d 

393, 397 (5th Cir. 2010) (“[T]he district court’s finding that a genuine factual 

dispute exists is a factual determination that this court is prohibited from 

reviewing in this interlocutory appeal.”). However, “[w]hen the district court 

fails to set forth the factual disputes that preclude granting summary 

judgment, we may be required to review the record in order ‘to determine what 

facts the district court, in the light most favorable to the nonmoving party, 

likely assumed.’” Kinney, 367 F.3d at 348 (quoting Johnson, 515 U.S. at 319). 

We thus lack jurisdiction to review a district court’s ultimate determination 

that genuine fact issues remain, but where the district court fails to make clear 

what those fact issues are, we may need to review the record ourselves.

Here, the district court articulated five disputed facts, but with the 

exception of one, which referred specifically to Det. Carter, all of the fact 

disputes found by the district court were ascribed to the defendants as an 

undifferentiated group. In conducting a qualified immunity analysis, each 

defendant officer’s conduct must be examined individually. See Meadours v. 

Ermel, 483 F.3d 417, 422 (5th Cir. 2007) (“The district court erred in 

considering the officers’ actions together, and we instruct the court to consider 

the officers[’] actions separately on remand.”). An officer cannot be held 

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individually liable in a § 1983 suit merely because he or she was tangentially 

involved in a problematic investigation; there must be some evidence tying the 

officer to misconduct. See Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task 

Force, 330 F.3d 681, 689-90 (5th Cir. 2003) (denying qualified immunity to 

arresting officer who lacked probable cause for arrest but granting qualified 

immunity to supervising officer, who was also present at the scene but was 

unaware of the lack of probable cause). The district court did not point to

record evidence creating a genuine dispute of material fact involving any 

individual defendant aside from Det. Carter. For example, the district court 

cited evidence that forensic tests had been reported directly to Det. Carter and

that key pieces of forensic evidence were missing from Hill’s original case file. 

Based on this evidence, the district court concluded that there was a genuine 

issue of fact as to whether “Det. Carter and/or other defendants” suppressed 

crucial forensic evidence. The district court did not indicate that there was 

evidence to link any individual defendant other than Det. Carter to the missing 

forensic evidence. Indeed, the only defendant the district court’s opinion ever

tied to bad conduct was Det. Carter.

When a district court denies a motion for summary judgment based on 

qualified immunity, it will typically “highlight the evidence in the record 

supporting its conclusions, and it will determine whether the defendant’s 

conduct, as outlined in the factual scenario,” violated the plaintiff’s clearly 

established rights. Castillo v. City of Weslaco, 369 F.3d 504, 507 (5th Cir. 2004) 

(per curiam) (citation omitted). The district court adequately set forth the 

factual disputes that precluded summary judgment for Det. Carter. There is 

no question that those disputes are material. See, e.g., Geter v. Fortenberry, 

849 F.2d 1550, 1559 (5th Cir. 1988) (“[A] police officer cannot avail himself of 

a qualified immunity defense if he procures false identification by unlawful 

means or deliberately conceals exculpatory evidence, for such activity violates 

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clearly established constitutional principles.”). The district court did not, 

however, adequately set out the disputes of fact precluding summary judgment 

as to the other defendants. When a district court holds without explanation 

that disputed issues of material fact preclude summary judgment based on 

qualified immunity, “[w]e can 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.” Manis v. Lawson, 585 

F.3d 839, 843 (5th Cir. 2009) (quoting Thompson v. Upshur Cty., 245 F.3d 447, 

456 (5th Cir. 2001)). A “more efficient alternative” to “combing through the 

record ourselves and concluding what factual scenario the district court likely 

assumed” is often to “remand to the district court so that it can outline the 

factual scenario it assumed in making its decision.” Castillo, 369 F.3d at 507 

(citing White v. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (per curiam)).

The district court in this case did not explicitly examine the evidence as 

it related to each individual defendant other than Det. Carter. This may have 

been due to the fact that the defendants in their filings in support of summary 

judgment, and Hill in his filings in opposition, uniformly presented arguments 

referencing the defendants as a single, collective group. Although the 

defendants did assert qualified immunity as to each individual defendant in 

their original answer to the plaintiffs’ complaint, it is unsurprising that the 

district court limited its analysis to the arguments as presented in the

summary judgment filings. The defendants adequately raised qualified 

immunity, however, so their failure to differentiate between the individual 

defendants in their district court brief does not justify denying the defense. 

See, e.g., Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007) 

(“Once a public official raises the defense of qualified immunity, the burden 

rests on the plaintiff to rebut it.”). Because the district court is well-versed in 

the record but has not yet explained whether the record prevents summary 

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judgment in favor of any of the individual defendants other than Det. Carter, 

it will be more efficient to remand this case to the district court than to conduct 

that analysis ourselves in the first instance. See Castillo, 369 F.3d at 507. 

CONCLUSION

The district court set forth the disputed facts that led it to deny Det. 

Carter summary judgment based on qualified immunity. Because those 

disputed facts are material, we DISMISS the appeal as to Det. Carter. The 

district court, however, did not set forth the factual scenario it assumed in 

denying summary judgment in favor of each of the other defendants. 

Accordingly, we REMAND to the district court with instructions to consider 

and determine with reasons whether each of the remaining defendants is 

entitled to summary judgment based on qualified immunity.

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