* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10583

Summary Calendar

 

NORMAN DEAN SMITH,

Plaintiff-Appellee,

versus

JEFFREY PATRI, Tarrant County Jailer; ET. AL.,

Defendants,

JEFFREY PATRI, Tarrant County Jailer,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CV-463-A

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

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-appellee Norman Dean Smith, Texas state prisoner

# 631984, filed this pro se civil rights action under 42 U.S.C.

§ 1983 against former Tarrant County Jailer Jeffrey Patri and

another defendant, alleging violation of his rights by filing an

inaccurate report that Smith possessed cocaine in the jail, by
No. 03-10583

-2-

searching him, and by subsequently prosecuting him for this

offense. Patri now appeals the district court’s order denying

his summary-judgment motion insofar as it asserted the defense of

qualified immunity against the federal claims. We REVERSE and

REMAND.

“Government officials acting within their discretionary

authority are immune from civil damages if their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Evett v. Detntff,

330 F.3d 681, 687 (5th Cir. 2003). This court’s “examination of

a claim of qualified immunity is a two-step process.” Harper v.

Harris County, Texas, 21 F.3d 597, 600 (5th Cir. 1994). “First,

the plaintiff must allege the violation of a clearly established

right. . . . Second, the actions of the officer must be

objectively reasonable under the circumstances, such that a

reasonably competent officer would not have known his actions

violated then-existing clearly established law.” Evett, 300 F.3d

at 687 (citation omitted). The question whether an official’s

conduct was objectively reasonable is a question of law, to be

decided by this court. Harper, 21 F.3d at 600.

Patri clearly falls within the category of persons for whom

qualified immunity was promulgated. First, he was a government

employee. Second, he was performing a discretionary governmental

act, as a sheriff’s employee jailing a suspect. Davis v.

Klevenhagen, 971 S.W.2d 111, 116 (Tex. App. 1998). 
No. 03-10583

-3-

Investigations of matters within the official’s purview are also

discretionary acts. See Fowler v. Szostek, 905 S.W.2d 336, 342

(Tex. App. 1995). Thus, the remaining question is whether Patri

should prevail under the two-step analysis.

Patri is entitled to immunity because Smith has not pleaded

or shown a violation of a clearly established constitutional

right. The bases of Smith’s complaint against Patri are that he

filed a “false” report about Smith’s possession of crack cocaine

and that he was improperly searched after Patri discovered the

crack cocaine about his person. R. 1, 2-3. First, there is no

right to a completely accurate police report. Furthermore, Patri

admitted before the jury that his memory of the incident had

faded over the intervening months and that he could not testify

with certainty that Smith dropped the crack cocaine from his

hand.

Also without merit is Smith’s claim that Patri violated his

rights by searching him after Patri saw him drop what he believed

to be crack cocaine. A lawfully arrested prisoner has no right

to be free from searches of his person. Indeed, the notion that

a prisoner when processed into a jail should be free from search

is ridiculous. Such a search is valid as a search incident to a

lawful arrest. See, e.g., United States v. Shugart, 117 F.3d

838, 846 (5th Cir. 1997). For Patri’s search to have violated

Smith’s rights in this context, this court would have to disavow
No. 03-10583

-4-

law enforcement’s authority to protect itself, the general

public, and other prisoners by searching arrested persons.

The second step of the immunity analysis asks whether

“the actions of the officer [were] objectively reasonable under

the circumstances, such that a reasonably competent officer

would not have known his actions violated then-existing clearly

established law. The question of whether an official’s conduct

was objectively reasonable is a question of law, to be decided

by this Court.” Evett, 330 F.3d at 687 (citations omitted). 

Patri’s actions were objectively reasonable, since he was merely

doing his job.

It was Patri’s responsibility as an intake jailer to search

prisoners brought to the Tarrant County Jail. It was especially

important for him to search Smith thoroughly because the

arresting officer felt that he was concealing something and

told Patri that. Undoubtedly there was evidence that Smith

was concealing 15 grams of crack cocaine. Thus Patri’s search

of Smith was objectively reasonable.

Second, Patri’s truthful testimony at Smith’s trial was

objectively reasonable, as shown by the record. Smith does not

contest this, but asks whether “a witness’s honest testimony [is]

a lawful excuse for a fabricated report.” He argues that Patri
No. 03-10583

-5-

** The parties disagree on whether this conviction has

been set aside.

is not entitled to qualified immunity because he falsified the

report, which may have induced the jury to convict him.**

This lacks merit because Smith was convicted in spite of the

alleged error in Patri’s report. The jury convicted Smith after

it heard Patri testify that he did not then recall that the drugs

fell from Smith’s hand but instead may have fallen from his belt

or pocket area. See R. 1, 206-09. Thus, the jury convicted

Smith notwithstanding Patri’s uncertainty concerning whence the

drugs fell. Moreover, there was never any question that Patri

recovered the drugs from underneath Smith’s foot after he placed

his foot over them when they hit the floor. Thus, Patri is

entitled to summary judgment on his defense of qualified

immunity. See Evett, 330 F.3d at 686-90.

REVERSED and REMANDED for further proceedings consistent

with this opinion. It is further ORDERED that Smith’s motion for

damages under FED. R. APP. P. 38 is DENIED.