     Case: 15-30062   Document: 00513425250     Page: 1   Date Filed: 03/15/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                 No. 15-30062                       March 15, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk
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.
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                                        No. 15-30062
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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                                       No. 15-30062
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 accomplice 2 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’


       2The 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.
       4Although 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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                                    No. 15-30062
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.
                                           4
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                                       No. 15-30062
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 Amendment 6 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.
       7The 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 cross-
appealed the claims on which the district court granted summary judgment.
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                                 No. 15-30062
             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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                                  No. 15-30062
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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                                  No. 15-30062
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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                                  No. 15-30062
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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