                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       ____________________

                            No. 93-7196
                       ____________________


                   LARRY WAYNE FOSTER, ET AL.,

                                              Plaintiffs-Appellees,

                              VERSUS

                  CITY OF LAKE JACKSON, ET AL.,

                                                        Defendants,

             A.A. MCCLAIN, ETC., WILLIAM YENNE, ETC.,
            P.C. MILLER, ETC., MATTHEW HOUSTON, ETC.,
                       and JOHN DEWEY, ETC.,

                                           Defendants/Appellants.
     _______________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
     ______________________________________________________

                         (July 27, 1994)

BEFORE WISDOM and BARKSDALE, Circuit Judges, and HARMON, District
Judge.1

RHESA HAWKINS BARKSDALE, Circuit Judge:

     The dispositive issue for this appeal is qualified immunity

against a claim of denial of access to the courts by concealing and

suppressing evidence during discovery.    And, for purposes of this

appeal, that issue centers on whether the claimed constitutional

right was clearly established at the time of its alleged violation.

Claiming qualified immunity, among other things, officials of the



1
     District Judge of the Southern District of Texas, sitting by
designation.
City of Lake Jackson, Texas, press this interlocutory appeal from

the denial of their motion to dismiss.     We REVERSE.

                                 I.

     Larry and Pamela Foster sued the City in state court in 1985,

claiming that their son's death in an automobile accident was

caused by the City's failure to maintain a traffic light.    After

discovery, the Fosters and the City reached a settlement, and the

claims against the City were dismissed.2

     The Fosters later filed this § 1983 action against the City

and several of its officials.3    They alleged that, in the state

suit, the defendants conspired to deny them access to the courts by

concealing and suppressing evidence during discovery, causing them

to settle for less than they might have had they obtained the

evidence in question.4

2
     In June 1988, the Fosters signed a release acquitting the
City and city officials of liability for the accident; the court
granted their motion to dismiss in December 1990. It is unclear
when the state suit discovery took place. The city officials
assert that the Fosters settled that suit in 1986; and the
district court used that year as its benchmark for determining
whether the right at issue was clearly established. For our
purposes, however, we must consider whether it was clearly
established in the period 1985 to 1988. We do so because this
appeal is from the denial of a motion to dismiss, see Fed. R.
Civ. P. 12(b)(6). Accordingly, we must take as true the well
pleaded allegations in the complaint. See infra. With regard to
the timing of the challenged conduct, the complaint alleges only
that it occurred from 1985-1988.
3
     The city officials, and their positions at the time of the
challenged conduct, are: A.A. MacLean (City Manager), William
Yenne (Assistant City Manager), P.C. Miller (Chief of Police),
Matthew Houston (City Engineer), and John Dewey (City Attorney).
4
     The Fosters alleged that the city officials intentionally
failed to respond to interrogatories concerning prior complaints
about the traffic light; removed or destroyed the police

                                 2
     The city officials moved, inter alia, to dismiss, pursuant to

Fed. R. Civ. P. 12(b)(6).     They asserted that the Fosters failed to

state a violation of a constitutional right, and that, in any

event, the action was barred by absolute witness immunity and

qualified immunity.      The district court held that a claim had been

stated,   and   ruled,   inter   alia,   against   the   absolute   witness

immunity defense, Foster v. City of Lake Jackson, 813 F. Supp.

1262, 1263 (S.D. Tex. 1993); later, against qualified immunity.5

The separate appeals from those orders have been consolidated.6


dispatcher's log records in which the complaints were recorded;
withheld the logs despite a document request; gave false
deposition testimony regarding their knowledge of the
malfunction; and induced police officers to remain silent about
their knowledge of it.
5
     In denying qualified immunity, the district court cited the
Supreme Court's recent decision in Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, ___ U.S. ___, 113 S.
Ct. 1160, 1162 (1993), which held the heightened pleading
standard for civil rights actions inapplicable for those against
municipalities. See Elliott v. Perez, 751 F.2d 1472 (5th Cir.
1985) (establishing heightened pleading standard; abrogated as to
municipalities by Leatherman). The district court noted that
Leatherman had not addressed whether Elliott continued to apply
to claims against individuals. Accordingly, it felt bound to
apply the Elliott standard to the allegations against the city
officials; however, it ordered limited discovery. Because we
hold that the officials are entitled to qualified immunity, the
heightened pleading issue is moot.
6
     In the first appeal, the city officials also challenged the
district court's order that they submit to discovery before
adjudication of qualified immunity. This issue is moot, because,
after the appeal from the discovery order was filed, the district
court denied the defense.

     The city officials contend that the district court was
without jurisdiction to deny qualified immunity, asserting that
the earlier appeal from both the denial of witness immunity and
the discovery order divested it of jurisdiction. This contention
overlooks the fact that the discovery order, in essence, denied
qualified immunity. See, e.g., Jacques v. Procunier, 801 F.2d

                                    3
                                 II.

     Our qualified immunity holding moots the other issues.     When

the issue is purely one of law, denial of such immunity is

appealable immediately under 28 U.S.C. § 1291, notwithstanding the

absence of a final judgment, because "immunity" in this sense

"means immunity from suit, not simply immunity from liability."

Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 & n.3

(5th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511 (1985);

Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir. 1988)); see

also Siegert v. Gilley, ___ U.S. ___, 111 S. Ct. 1789, 1793 (1991).

But, where there are fact issues, the denial is not appealable

immediately.    E.g., Lampkin v. City of Nacogdoches, 7 F.3d 430, 436

(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1400

(1994).   Here, no facts are disputed; because we review the denial

of a Rule 12(b)(6) motion, we take as true the well pleaded

allegations in the complaint.    E.g., Jackson v. City of Beaumont,

958 F.2d at 618; Collins v. City of Harker Heights, 916 F.2d 284,

286 & n.2 (5th Cir. 1990), aff'd, ___ U.S. ___, 112 S. Ct. 1061

(1992).      We review the denial de novo.      Jackson v. City of

Beaumont, 958 F.2d at 618.

     At bottom, qualified immunity "reconcile[s] two competing

interests.     One interest is the compensation of persons whose

federally protected rights have been violated.      Opposing this is

the fear that personal liability will inhibit public officials in



789, 791 (5th Cir. 1980) (purposes of qualified immunity include
shielding officials from "burdens of broad-reaching discovery").

                                  4
the discharge of their duties."              Johnston v. City of Houston, 14

F.3d 1056, 1059 (1994); accord, Spann v. Rainey, 987 F.2d 1110,

1114    (5th    Cir.   1993).    In     balancing    these    interests,    it   is

inevitable that some improper actions are shielded.

       Abrogation of qualified immunity is properly the exception,

not the rule.          See McGregor v. Louisiana State Univ. Bd. of

Supervisors, 3 F.3d 850, 862 (5th Cir. 1993), cert. denied, ___

U.S. ___, 114 S. Ct. 1103 (1994).                The burden of negating the

defense    lies    with   the   plaintiffs.         Chrissy   F.   by   Medley   v.

Mississippi Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir.

1991) (quoting Mitchell, 472 U.S. at 526); appeal after remand, 995

F.2d 595 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct.

1336 (1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

                    In assessing a claim of qualified immunity, we
               engage in a bifurcated analysis.         First, we
               determine whether the plaintiff has allege[d] the
               violation of a clearly established constitutional
               right. If so, we then decide if the defendant's
               conduct was objectively reasonable....

Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (citations

and    internal    quotation    marks    omitted;     brackets     in   original).

Accordingly, "`[u]nless the plaintiff's allegations state a claim

of violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the commencement

of discovery.'" Chrissy F., 925 F.2d at 848 (quoting Mitchell, 472

U.S. at 526) (citations omitted).

       Therefore, our first task is to "review the specific parts of

the complaint to determine whether [plaintiffs] charge conduct

                                         5
violating clearly established federal rights".        Id. at 851 & n.33

(citing Stem v. Ahearn, 908 F.2d 1, 5-6 (5th Cir. 1990), cert.

denied, 498 U.S. 1069 (1991)); accord, Lampkin, 7 F.3d at 434;

Enlow v. Tishomingo County, 962 F.2d 501, 508 (5th Cir. 1992).         A

right   is   "clearly   established"   only   when   its   contours   are

sufficiently clear that a reasonable official would have realized

that his conduct violated that right, not simply that the conduct

was otherwise improper.      See, e.g., Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 454-55 (5th Cir. 1994) (en banc) (citing

Anderson v. Creighton, 483 U.S. 635, 639 (1987)); Boddie v. City of

Columbus, 989 F.2d 745, 748 (5th Cir. 1993); Click v. Copeland, 970

F.2d 106, 109 (5th Cir. 1992).

     An official's conduct is not protected by qualified immunity

if, in light of preexisting law, it was apparent that the conduct,

when undertaken, constituted a violation of the right at issue.

This is true even if the "very action in question" had not then

been held to be a constitutional violation.     See Anderson, 483 U.S.

at 640; Spann v. Rainey, 987 F.2d at 1114-15 (reasonableness of

official conduct judged in light of law existing at time of

violation).    "Put another way, officials must observe `general,

well-developed legal principles.'"      Doe v. Taylor ISD, 15 F.3d at

455 (quoting Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303,

305 (5th Cir. 1987)).

     The constitutional right in issue is access to the courts.

The Fosters contend that this right protects against the discovery

abuses claimed here, because otherwise, litigants' access to the


                                   6
courts is not "adequate, effective and meaningful".                     The city

officials counter that the right does not encompass a right to

proceed free of discovery abuses by a governmental entity involved

in a civil lawsuit in state court, but protects only the right to

institute the action.        In addition, they assert that, even if a

more broadly-based right exists now, it was not clearly established

in 1985-88, the time of the alleged conduct.                 See note 2, supra.

We agree with this latter contention.

     The   right   of     access,   in       its   "most    obvious   and   formal

manifestation ... protects one's physical access" to the courts.

Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir. 1989), cert.

denied, 496 U.S. 924 (1990).        In this manifestation, our court has

found the right to be implicated where, for example, prisoners are

denied the right to file a lawsuit, or are denied access to legal

materials,   or    when    prison   officials        fail    to   forward    legal

documents.   Id. at 811-12; Brewer v. Wilkinson, 3 F.3d 816, 820

(5th Cir. 1993) (collecting cases), cert. denied, ___ U.S. ___, 114

S. Ct. 1081 (1994).        Similarly, the right may be violated if an

indigent litigant is denied a refund or waiver of filing fees.                 See

Johnson v. Atkins, 999 F.2d 99 (5th Cir. 1993).

     Here, however, the claimed violation is not an impediment to

the ability to file suit.           Instead, as framed by the district

court, plaintiffs allege that

           public officials "wrongfully and intentionally
           conceal[ed] information crucial to a person's
           ability to obtain redress though the courts, and
           d[id] so for the purpose of frustrating that right,
           and that concealment and the delay engendered by it
           substantially reduce[d] the likelihood of one's

                                         7
          obtaining the relief to which one [wa]s otherwise
          entitled...."

Foster, 813 F. Supp. at 1263 (quoting Crowder, 884 F.2d at 812)

(district court's brackets).      As noted, plaintiffs contend that

defendants'   actions   have   violated   their   right   of   "`adequate,

effective, and meaningful'" access.        Crowder, 884 F.2d at 811,

quoting Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983).

     Crowder -- which involved a challenge to defendants' taking

plaintiffs' property outside the jurisdiction in an in rem action

-- did not involve a "cover-up" by officials.         Instead, like the

prisoners' rights cases on which it relied, it involved conduct by

an official that effectively could have prevented plaintiffs from

instituting their action.      That is, the Crowders alleged that by

removing their property from Texas, the defendants "destroyed or

impaired the rightful jurisdiction of Texas courts over the seized

items, thus interfering with [the Crowders'] ability to litigate

ownership of the property in Texas".         Crowder, 884 F.2d at 813

(internal citations and quotation marks omitted) (brackets in

original).

     Similarly, Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983)

(cited in Crowder, 884 F.2d at 812), which involved a cover-up by

state prosecutors, is distinguishable.            Ryland, like Crowder,

concerned an officially-created impediment to the ability to file

an action, rather than, as here, an alleged post-filing violation.

See Ryland, 708 F.2d at 973.

     As stated in Crowder, the right of access is "a facilitative

right ... designed to ensure that a citizen has the opportunity to

                                   8
exercise his or her legal rights to present a cognizable claim to

the appropriate court and, if that claim is meritorious, to have

the court make a determination to that effect and order the

appropriate relief."         884 F.2d at 814.         Thus, our court has

characterized the right of access (even "adequate, effective, and

meaningful access" as contemplated by Crowder, 884 F.2d at 811,

rather than only a physical right of access) to be implicated where

the ability to file suit was delayed, or blocked altogether.             For

example, in Ryland, our court found that the prosecutors' action to

delay   filing    suit    could   interfere   with   the   "constitutionally

protected right to institute ... suit", if that right had been

prejudiced.      708 F.2d at 973.7

     Crowder acknowledged that, even in 1989, the contours of the

right of judicial access could best be described as "nebulous".

884 F.2d at 811.         As reflected above, we hold that the right of

access, as clearly established in 1985-1988, encompassed a right to


7
     The Fosters rely on the language from Ryland and Crowder,
quoted supra, and on cases from other jurisdictions, to urge that
a government cover-up of evidence violates the right of access,
even if suit has been successfully instituted. See, e.g., Bell
v. City of Milwaukee, 746 F.2d 1205, 1260-61 (7th Cir. 1984)
(citing Ryland); see also Nielsen v. Basit, No. 83 C 1683, 1994
WL 30980, at *3-4 (N.D. Ill. Feb. 1, 1994) (not reported in F.
Supp.) (citing Bell for proposition that allegations of civil
conspiracy to cover up evidence could state a claim for denial of
access to courts, and that that right was clearly established in
1981).

     Bell, 746 F.2d at 1260-61, cites our court's 1983 Ryland
opinion with approval. We question Bell's reliance on Ryland for
any broader definition of right of access than one encompassing
the right to institute suit. We are similarly skeptical of
Nielsen's reliance on Bell. Nielsen, 1994 WL 30980, at *3
(citing Bell, 745 F.2d at 1261).

                                       9
file an action, but not the right to proceed free of discovery

abuses after filing.8    Cf. Emplanar, Inc. v. Marsh, 11 F.3d 1284,

1296 (5th Cir. 1994) (in ongoing suit against government agency,

government employee who was potential witness did not improperly

chill access to courts by refusing to speak to plaintiff about

gravamen of litigation).

     As discussed, we must accept as true the Fosters' allegations;

the alleged conduct would be reprehensible.             But, that we are

"morally outraged", or the "fact that our collective conscience is

shocked" by the alleged conduct, Doe v. Taylor ISD, 15 F.3d at 475

(Jones,   J.,   dissenting),   does    not   mean   necessarily   that   the

officials should have realized that it violated a constitutional

right of access.     The reasonable actor must have known that the

conduct violated a clearly-established right; not that, in some

sense, he was doing something wrong.         See id. at 465 (Garwood, J.,

dissenting) (dissent would hold that defendant was nevertheless

entitled to qualified immunity despite the fact that his actions




8
     In cases decided after 1988, our court has continued to
characterize the right of access in terms of the right to
institute suit. See, e.g., Chrissy F., 925 F.2d at 851 (holding
that plaintiff's right of access to the courts was "blocked" by
defendants' failure to report allegations of abuse to appropriate
authorities, which failure caused plaintiffs to delay filing
suit); Johnson v. Atkins, 999 F.2d at 100. Hale v. Townley, 19
F.3d 1068, 1072-74 (5th Cir. 1994), modified, Nos. 92-5208, 93-
4090, 1994 WL 185925, slip op. 4462 (5th Cir. May 13, 1994),
concerns claims in 1988-1991 of retaliation for having sought
redress in the courts. Hale notes, in dicta, that Crowder, 884
F.2d 804, similarly did not involve a "claim that the defendants
had attempted to cover up facts critical to the plaintiffs'
lawsuits." Hale, 19 F.3d at 1073.

                                      10
were     "deplorable....indecisive,     insensitive,    inattentive,

incompetent, stupid, and weak-kneed").

       In sum, even assuming that the contours of the right of access

have been expanded since 1988 to include the Fosters' definition,

those contours were not clearly established at the time the claimed

violations occurred.    A public official who concealed or destroyed

evidence, or gave false deposition testimony, surely would have

known that was improper, to say the least; but, at the time of the

alleged conduct, the right was not sufficiently "particularized ...

[so] that a reasonable official would understand" that the behavior

violated a constitutional right.9      See Doe v. Louisiana, 2 F.3d

1412, 1416 (5th Cir. 1993) (citations and internal quotation marks

omitted), cert. denied, ___ U.S. ___, 114 S. Ct. 1189 (1994).

                                III.

       For the foregoing reasons, we REVERSE the denial of qualified

immunity for the city officials, and REMAND for further proceedings

consistent with this opinion.

                        REVERSED and REMANDED




9
     The Fosters could, of course, have sought relief in state
court for the challenged behavior using a variety of state law
remedies, e.g. a motion to set aside the judgment based on fraud
or motions to compel compliance with discovery requests. See,
e.g., Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)
(motion to set aside judgment); Tex R. Civ. P. 215 (discovery);
Tex. R. Civ. P. 320 (motion for new trial upon showing of newly-
discovered evidence).

                                  11
