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

                                                                            FILED
                                                                         October 20, 2008

                                       No. 07-51363                   Charles R. Fulbruge III
                                                                              Clerk

DERRICK MCGEE

                                                  Plaintiff-Appellee
v.

OSCAR CARRILLO

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:07-CV-248


Before KING, DEMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Sheriff Oscar Carrillo appeals the district court’s Order dismissing his
Rule 12(b) Motion to Dismiss on grounds of qualified immunity.                      For the
following reasons, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff Derrick McGee was arrested in January 2005 and charged in
Hudspeth County, Texas, with possession of a controlled substance. He was
released on bond but, after failing to appear at a scheduled court hearing, his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 07-51363

bond was revoked and a warrant was issued. McGee was arrested in California
and extradited to Hudspeth County on June 6, 2005. McGee alleges that, on
that same day, all of the state’s charges were dismissed and no additional
charges were filed. Nonetheless, Sheriff Arvin West held McGee in Hudspeth
County until June 9, 2005, when West transferred McGee to Sheriff Oscar
Carrillo in Culberson County, Texas, pursuant to an Interlocal Agreement
between the two counties.1 McGee alleges that he was held in Culberson County
jail until July 11, 2005, when he was transferred back to Hudspeth. The next
day, he was released from Hudspeth County jail.
       On July 11, 2007, McGee filed a 42 U.S.C. § 1983 complaint in the Western
District of Texas against (i) West, individually and in his capacity as Sheriff of
Hudspeth County; (ii) Hudspeth County; (iii) Carrillo, individually and in his
capacity as Sheriff of Culberson County; and (iv) Culberson County.                     The
complaint alleges that both West and Carrillo had illegally detained him for
thirty-six days. McGee claimed that such detention constituted a “violation of
his clearly established rights to be free of unreasonable seizure” and a
“deprivation of liberty without due process of law” under the Fourth, Fifth, and
Fourteenth Amendments.              Such conduct, he stated, was “objectively
unreasonable.”
       On August 24, 2007, Carrillo filed a Rule 12(b) Motion to Dismiss alleging,
inter alia, that he was entitled to qualified immunity.2 On October 17, 2007, the


       1
        Texas Government Code § 791.011(a) states that “[a] local government may contract
or agree with another local government . . . to perform governmental functions and services
in accordance with this chapter.” Such functions and services include police protection and
detention services, id. § 791.003(3)(A), and an interlocal agreement may authorize a local
government to “provide a governmental function or service that each party to the contract is
authorized to perform individually,” id. § 791.011(c)(2). For the purposes of this appeal, we
assume the validity of the parties’ Interlocal Agreement.
       2
        Defendants West, Hudspeth County, and Culberson County have also filed motions
to dismiss, though none is part of the present appeal.

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district court denied Carrillo’s motion. The district court held that Carrillo had
failed to adduce any facts demonstrating that he had the lawful authority to hold
McGee during the relevant time period. The court noted the limited discretion
that a jailer has under Texas law to hold an individual in jail, and held that
Carrillo had failed to demonstrate that he acted within that discretion in holding
McGee after all charges were dropped. Citing numerous cases in this circuit and
elsewhere, the court also held that McGee had successfully alleged a
constitutional violation based on the right to be free from illegal detention.
                        II. STANDARD OF REVIEW
       The denial of a motion to dismiss on qualified immunity grounds is part
of a
       “small class of district court decisions that, though short of final
       judgment, are immediately appealable because they finally
       determine claims of right separable from, and collateral to, rights
       asserted in the action, too important to be denied review and too
       independent of the cause itself to require that appellate
       consideration be deferred until the whole case is adjudicated.”
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005) (quoting
Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (internal quotation marks
omitted)). This court reviews de novo a court’s refusal to dismiss a case on
grounds of qualified immunity. Id. at 252 (citing Wilkerson v. Stalder, 329 F.3d
431, 434 (5th Cir. 2003)). “When reviewing a denial of qualified immunity on an
interlocutory appeal, we are restricted to determinations of ‘question[s] of law’
and ‘legal issues,’ and we do not consider ‘the correctness of the plaintiff’s
version of the facts.’” Id. at 251–52 (quoting Mitchell v. Forsyth, 472 U.S. 511,
528 (1985) (alteration in original)).
                               III. DISCUSSION
       The qualified immunity defense protects government officials from civil
liability when they perform discretionary acts that are objectively reasonable in
light of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

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Thomas v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001).              Qualified
immunity does not protect government officials who disregard or ignore “settled,
indisputable law.” Wood v. Strickland, 420 U.S. 308, 321 (1975).
      This court requires a government official invoking the qualified immunity
defense to show both that he acted in good faith and that such action was within
the scope of his discretionary authority. Salas v. Carpenter, 980 F.2d 299, 306
(5th Cir. 1992). With regard to the good faith requirement, the defendant must
“demonstrate that he acted with a good faith belief that his actions were within
his lawful authority, and that reasonable grounds existed for this belief based
upon objective circumstances at the time he acted.” Douthit v. Jones, 619 F.2d
527, 534 (5th Cir. 1980). A defendant cannot show good faith, in contrast, if he
provides a “mere statement” that he believed in good faith that he acted lawfully.
Id. at 536. For example, in Douthit this court ruled that a sheriff and deputy
were not entitled to qualified immunity when they held a prisoner in jail beyond
his sentence for failing to pay a fine. Id. at 535–37. In that case, the sheriff and
deputy merely stated that they believed in good faith that their actions were
lawful and failed to produce any meaningful documentation that might justify
their belief. Id. It is the lack of such documentation on which this appeal
founders.
      We set out Carrillo’s argument that he successfully pleaded that he acted
in good faith and within the scope of his discretionary authority. First, he
argues that his sole discretionary act was housing McGee pursuant to the
Interlocal Agreement, which was made under Texas Government Code
§ 791.011. Carrillo further suggests that the Interlocal Agreement establishes
Hudspeth County’s legal authority over McGee, and thus “at no time” was
McGee held under the authority of Culberson County or Sheriff Carrillo.
Finally, he argues against McGee’s claim that he had a “ministerial” duty to
release a prisoner by reasoning that cases such as Douthit, which confirmed

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prison officials’ non-delegable duty to incarcerate only prisoners committed by
a lawful authority, did not contemplate a situation where one county houses the
prisoners of another. Thus, Carrillo argues, he acted in good faith pursuant to
the Interlocal Agreement and acted in his discretion by accepting McGee to his
jail.
        In the present case, the district court was correct in denying Carrillo’s
Motion to Dismiss because Carrillo has failed to demonstrate that he acted in
good faith and within his discretion when he incarcerated McGee after the
charges against McGee were dropped. The record as it currently stands lacks
the Interlocal Agreement between Culberson and Hudspeth Counties, the
original capias ordering McGee into custody, and any other relevant
documentation that could guide a court as to whether or not Carrillo was acting
in good faith in a matter committed to his discretion.3 To ask for more is not to
commit this case to trial. But it is to say that the case needs to move to the
summary judgment stage, with its associated discovery, before the district court
will be able to assess whether Carrillo acted in good faith in reliance on the
capias under which McGee was held or on the terms of the Interlocal Agreement
(which, according to according to Texas Government Code § 791.011(d)(2), must
“state the purpose, terms, rights, and duties of the contracting parties”).
        We agree with the district court that Carrillo “may ultimately demonstrate
that he [acted] pursuant to what he believed was a lawful agreement and
pursuant to lawful charges.”           Indeed, we are mindful that the qualified
immunity defense “protects the public’s interest in enforcement of the laws by
ensuring that the threat of liability will not deter an executive official from


        3
        At oral argument on appeal, McGee’s counsel stated, “I have not seen a piece of paper.
I haven’t even seen the Interlocal Agreement. I have not seen a single document. If Sheriff
West had forwarded some document to Sheriff Carrillo upon which Sheriff Carrillo could have
based reasonable belief that he had authority to hold the prisoner, that would probably
exonerate Sheriff Carrillo.” (Appellant’s Oral Argument, Sep. 4, 2008.)

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exercising his discretion and performing his official duties.” Douthit, 619 F.2d
at 534.   Carrillo’s argument about the desirability of granting qualified
immunity to sheriffs who temporarily house prisoners from other counties is
understandable. But it is premature. We are confined to the pleadings for the
purposes of ruling on this appeal, and neither good faith nor discretion has been
adequately pleaded.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the Order of the district court;
costs shall be borne by Carrillo.




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