UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACK EARL WALKER; ELEANOR
WALKER,
Plaintiffs-Appellees,

v.

IRVIN SOPHER, M.D. D.D.S.,
personally,
Defendant-Appellant,

and

THE TYLER COUNTY COMMISSION;
GARY KELLER, personally and in his
capacity as Sheriff of Tyler County;
                                       No. 95-2248
EARL ROBERT KENDALL, personally
and in his capacity as a Deputy
Sheriff of Tyler County; WALTER
SMITTLE, personally; ROBERT HALL,
personally; MACK DENNIS,
personally; GEORGE TRENT,
personally; RON GREGORY,
personally; CARL LEGURSKEY,
personally; NICHOLAS J. HUN,
personally; DAVE VANCAMP,
personally,
Defendants.
JACK EARL WALKER; ELEANOR
WALKER,
Plaintiffs-Appellees,

v.

ROBERT HALL, personally; MACK
DENNIS, personally,
Defendants-Appellants,

and

THE TYLER COUNTY COMMISSION;
GARY KELLER, personally and in his
                                                               No. 96-1088
capacity as Sheriff of Tyler County;
EARL ROBERT KENDALL, personally
and in his capacity as a Deputy
Sheriff of Tyler County; WALTER
SMITTLE, personally; IRVIN SOPHER,
M.D. D.D.S., personally; GEORGE
TRENT, personally; RON GREGORY,
personally; CARL LEGURSKEY,
personally, NICHOLAS J. HUN,
personally; DAVE VANCAMP,
personally,
Defendants.

Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-94-143-1)

Argued: July 10, 1996

Decided: September 23, 1998

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

                    2
Reversed in part, dismissed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marvin Richard Dunlap, DICKIE, MCCAMEY & CHIL-
COTE, P.C., Pittsburgh, Pennsylvania; David L. Wyant, SHUMAN,
ANNAND & POE, Wheeling, West Virginia, for Appellants. Stephen
Douglas Herndon, Wheeling, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jack Earl Walker and his wife Eleanor brought this action pursuant
to 42 U.S.C. § 1983 and state law against, among others, the appel-
lants, Dr. Irvin Sopher, who was Chief Medical Examiner for the
State of West Virginia, and Robert Hall and Mack Dennis, Assistant
State Fire Marshals. The Walkers alleged that Sopher, Hall, and Den-
nis violated Jack Walker's constitutional rights by intentionally with-
holding from the prosecutor materially exculpatory evidence that they
possessed as a result of their investigation of Jack Walker for murder
and arson. Appellants moved to dismiss this action pursuant to Fed.
R. Civ. P. 12(b)(6), asserting both absolute and qualified immunity.
The district court denied the motion, and appellants have filed these
consolidated interlocutory appeals. Based on a recent, largely disposi-
tive precedent of this court, we reverse the judgment of the district
court and hold that the appellants are entitled to qualified immunity
from the federal causes of action. However, because we have no juris-
diction to review the district court's decisions regarding the Walkers'
pendent state law claims, we dismiss the appeals in part.

                    3
I.

On May 11, 1989, Jack Walker was arrested in Tyler County, West
Virginia, for the murder of Mary Sherwood and the arson of her
home. Walker was incarcerated until his trial in state circuit court. On
March 23, 1990, he was found guilty and began serving a life sen-
tence.

The Supreme Court of Appeals of West Virginia reversed Walker's
conviction for reasons unrelated to the present action and remanded
the case for a new trial. State v. Walker, 188 W.Va. 661, 425 S.E.2d
616 (1992). On May 17, 1993, his second trial resulted in a hung jury,
and Walker was released from custody. The state tried Walker a third
time in April 1994, and he was finally acquitted.

On December 4, 1994, the Walkers filed this suit pursuant to 42
U.S.C. § 1983 and state law. The Walkers alleged that Dr. Sopher,
Hall, and Dennis violated Jack Walker's rights under the Fourth,
Fifth, Sixth, and Fourteenth Amendments to the United States Consti-
tution. In particular, the Walkers alleged that each of the appellants
intentionally and maliciously withheld materially exculpatory evi-
dence from the prosecutor.

As Chief Medical Examiner for West Virginia, Dr. Sopher con-
ducted the postmortem examination of Mary Sherwood's body on
May 11, 1989. The Walkers contend that Dr. Sopher was ordered to
file all materials relating to the autopsy of the victim in a sealed docu-
ment, but the only material filed was his formal report and a photo-
graph of the victim's skull. Moreover, they allege that Dr. Sopher
failed to provide tissue samples, autopsy records, photographs, teach-
ing slides, x-rays, diagrams, test results, graphs, notes, histologic
slides, chain of custody documents, and other materials, as ordered by
the state court in advance of the second trial. Tissue samples whose
existence was disclosed at the second trial were not provided prior to
the third trial. Finally, the Walkers allege that Dr. Sopher told Sheriff
Gary Keller by telephone that the gunshot wound appeared to be con-
sistent with a .38 caliber weapon and that this oral report was not dis-
closed to the defense prior to the first or second trials.

As for Hall and Dennis, the Walkers allege that they also intention-
ally withheld exculpatory evidence, which they collected and main-

                     4
tained in a separate file from the one furnished to the prosecutor.
Specifically, they contend that Hall collected four cans of debris from
the fire scene, some of which indicated that the fire was not the prod-
uct of arson, and that Hall found a broken kerosene lantern and sub-
standard natural gas line pipe joints at the scene, both of which could
have provided plausible alternative explanations as to the fire's origin.
The Walkers contend that Hall delivered this exculpatory evidence to
Dennis, who then transferred it to the forensic section of the West
Virginia Department of Public Safety for analysis. Dennis, with
Hall's knowledge, kept this information in a file separate from the one
made available to the prosecuting attorney.

Sopher, Hall, and Dennis each moved to dismiss the actions against
them pursuant to Fed. R. Civ. P. 12(b)(6), relying on both absolute
and qualified immunity. The district court declined to dismiss the
Walkers' § 1983 claim that the appellants withheld exculpatory evi-
dence. The court also declined to dismiss the state common law
claims of malicious prosecution. Sopher, Hall, and Dennis appeal
these rulings.

II.

We review de novo the disposition of a motion to dismiss for fail-
ure to state a claim upon which relief can be granted under Rule
12(b)(6). See Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993), cert. denied, 510 U.S. 1197 (1994).1 "[A] rule
12(b)(6) motion should be granted only in very limited circum-
stances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325
(4th Cir. 1989). Indeed, a motion to dismiss "`should not be granted
unless it appears to a certainty that the plaintiff would be entitled to
no relief under any state of facts which could be proved in support of
his claim.'" Id. (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th
Cir. 1969)). Thus, in considering a motion to dismiss, we accept the
factual allegations in the complaint as true and afford the plaintiff the
benefit of all reasonable inferences that can be drawn from those alle-
gations. Mylan Laboratories, 7 F.3d at 1134; Rogers, 883 F.2d at 325.
_________________________________________________________________
1 Appellants' motion to strike the Walkers' brief is denied. However,
we have not considered any material other than the allegations in the
Walkers' complaint.

                     5
III.

Appellants assert that they are entitled to qualified immunity even
if the Walkers' allegations are true. Qualified immunity shields gov-
ernment officials performing discretionary functions from personal
liability for damages "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which [a] reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir. 1995). The
qualified immunity defense is designed "to allow government offi-
cials `the freedom to exercise fair judgment' without `being blind-
sided by liability derived from newly invented rights or new,
unforeseen applications of pre-existing rights.'" Cromer v. Brown, 88
F.3d 1315, 1324 (4th Cir. 1996) (quoting Pinder v. Johnson, 54 F.3d
1169, 1173 (4th Cir.) (en banc), cert. denied , 516 U.S. 994 (1995)).

Qualified immunity protects "all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341 (1986). "Officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines." Maciariello v.
Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506 U.S.
1080 (1993). This immunity is not afforded out of some special solici-
tude for the interests of public officials over those of ordinary citi-
zens. Its purpose is to allow officials to govern with vigor rather than
with timidity, Anderson v. Creighton, 483 U.S. 635, 638 (1987), and
vigorous pursuit of the goals of a democratic government is very
much in the interest of the people.

In addressing a qualified immunity defense, we first ask "whether
the plaintiff has alleged a violation of law that was clearly established
at the time the challenged actions were taken." DiMeglio, 45 F.3d at
794. If the plaintiff has alleged a violation of clearly established law,
we then consider "whether a reasonable person in the official's posi-
tion would have known that his actions violated that right." Id. n.1.

Recently, our court sat en banc to decide a case asking whether, as
of 1982, it was clearly established that an investigator violates an
accused's due process rights by failing to disclose materially exculpa-

                     6
tory evidence to the prosecutor. We concluded that it was not. Jean
v. Collins, ___ F.3d ___ (4th Cir. Sept. 17, 1998) (en banc).2

In Jean we first defined the universe of law of which we expect
public officials to be aware. We concluded that"[o]rdinarily . . .
courts in this circuit need not look beyond the decisions of the
Supreme Court, this court of appeals, and [where appropriate] the
highest court of the state in which the case arose[.]" Id. at ___. We
then examined this case law as it stood in 1982 and determined that,
at most, it established that prosecutors have a constitutional duty to
provide exculpatory evidence to an accused (for the exercise of which
Imbler affords absolute immunity) and that knowledge of information
in the hands of investigators is imputed to the prosecutor for this pur-
pose. Id. at ___. This imputation did not impose a constitutional duty
on investigators to turn over evidence to the prosecutor; instead, it
"simply encouraged prosecutors' offices to establish `procedures and
regulations . . . to insure communication of all relevant information
on each case.'" Id. at ___ (quoting Giglio v. United States, 405 U.S.
150, 154 (1972)).

In light of Jean our analysis is largely done, inasmuch as it estab-
lishes the state of the law in this circuit as of 1982. Our inquiry nar-
rows, then, to the period between 1982 and the dates of the acts
complained of (that is, May 1989 through April 1994).

Only one relevant case could be argued to have changed the legal
_________________________________________________________________
2 The other key holding of Jean is that investigators are "absolutely
immune from suits challenging a failure to disclose evidence directly to
the defense." ___ F.3d at ___. We reasoned that the decision to disclose
or not to disclose evidence to the defense was a prosecutorial function;
hence, under the functional approach to absolute immunity prescribed by
the Supreme Court, investigators share the absolute immunity already
afforded prosecutors for such decisions. Id. at ___. See Buckley v.
Fitzsimmons, 509 U.S. 259, 268-269 (1993) (discussing functional
approach); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (affording
absolute immunity to prosecutors performing prosecutorial functions);
Carter v. Burch, 34 F.3d 257, 262-263 (4th Cir. 1994) (absolute prosecu-
torial immunity extends to alleged withholding of exculpatory evidence),
cert. denied, 513 U.S. 1150 (1995).

                     7
landscape during this period: Goodwin v. Metts , 885 F.2d 157 (4th
Cir. 1989), cert. denied, 494 U.S. 1081 (1990). In Goodwin the plain-
tiffs were accused of a break-in. After their arrest the investigating
officer discovered that a key informant had provided him with a false
name and address and could no longer be found. More importantly,
about one month before the plaintiffs' trial, another man was arrested
in a neighboring jurisdiction and confessed to the break-in. Even
without knowing of this confession, the public prosecutor declined to
try the very weak case. Instead, a private lawyer who had represented
the victims of the break-in did so. Prior to trial, this lawyer conferred
with the investigating officer, who did not mention that another man
had confessed to the crime. After a jury trial, the plaintiffs were
acquitted. They later brought a successful § 1983 action against the
officer.

On the officer's appeal, we stated that "[a] police officer who with-
holds exculpatory information from the prosecutor can be liable under
both § 1983 and the state common law." Id. at 162. "Being subjected
to a prosecution because an officer withheld exculpatory evidence
from the prosecutor while urging that the prosecution should go for-
ward can work a constitutional deprivation." Id. at 163.

The question for us, then, is whether these pronouncements ren-
dered "the `contours of the right' . . . so conclusively drawn as to
leave no doubt that the challenged action[s were] unconstitutional."
Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991) (quoting
Anderson, 483 U.S. at 620), cert. denied, 502 U.S. 1031 (1992). We
think that they did not.

First of all, Goodwin was decided on September 12, 1989. Many
of the "challenged actions" in this case -- the gathering of physical
evidence and the autopsy -- occurred before then. Second, the precise
legal basis for the holding in Goodwin is not entirely clear. We
described the section 1983 claim at issue in Goodwin alternately as
"wrongful prosecution" or "malicious prosecution resulting in a con-
stitutional deprivation." Goodwin, 885 F.2d at 160 & n.1. Moreover,
though our analysis seemed to rest on due process, we did not pre-
cisely articulate that reliance.

Third, its core holding has been called into doubt by the Supreme
Court. The most natural reading of Goodwin is that it recognized a

                     8
§ 1983 due process claim against a police officer for conduct that
would constitute the tort of malicious prosecution under state law.
Our discussion rested heavily on South Carolina tort law, 885 F.2d at
161-162, and, in a subsequent appeal concerning attorney's fees for
the very same case, we described the verdicts as resting "only upon
[the] malicious prosecution claims[.]" Goodwin v. Metts, 973 F.2d
378, 383 (4th Cir. 1992). In 1994 a majority of the Supreme Court
held that there is no substantive due process right"to be free from
criminal prosecution except upon probable cause," Albright v. Oliver,
510 U.S. 266, 268 (plurality) & 286-291 (Souter, J., concurring)
(1994), and a different majority recognized that substantive due pro-
cess is likewise unavailable as a theory to elevate a common law
malicious prosecution claim to constitutional status. Id. at 270 n.4
(plurality opinion) & 281-286 (Kennedy, J., joined by Thomas, J.,
concurring) (1994). Thus, the legal claim before the Goodwin court
and upon which its holding rests is now discredited.

In Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996), we observed that

          [t]o the extent that Goodwin bases its holding on a conclu-
          sion that the officer's failure to disclose exculpatory evi-
          dence deprived the § 1983 plaintiffs of a liberty interest in
          avoiding prosecution on less than probable cause, that rea-
          soning has been rejected in Albright v. Oliver , 114 S. Ct.
          [807 (1994)] .... But to the extent that Goodwin ruled that
          the officer's failure to disclose exculpatory information
          deprived the § 1983 plaintiffs of their right to a fair trial, its
          holding is not affected by Albright. See generally Brady v.
          Maryland, 373 U.S. 83, 87 (1963) ....

Taylor, 81 F.3d at 436 n.5. These observations are true enough: "to
the extent" Goodwin may have rested on a general duty to turn over
exculpatory evidence so as to ensure a fair trial, Albright did not
affect it. The problem is that neither we nor a reasonable public offi-
cial can know how "extensively" the Goodwin court relied on this
ground, or even if it would have decided the case the same way had
it foreseen Albright. In short, the law must simply be clearer than

                     9
Goodwin made it before public officials can be stripped of qualified
immunity.3

IV.

Finally, appellants also ask us to review the district court's decision
not to dismiss the Walkers' state law claims. We lack jurisdiction to
do so. The district court's denial of the motion to dismiss the Walk-
ers' state law claims is not a final order and is therefore not indepen-
dently appealable. Our jurisdiction over an interlocutory appeal from
a denial of immunity does not permit us to consider another ruling of
the district court, absent an independent jurisdictional basis, "unless
the other issue is (1) inextricably intertwined with the decision to
deny [ ] immunity or (2) consideration of the additional issue is neces-
sary to ensure meaningful review of the [ ] immunity question."
Taylor, 81 F.3d at 437 (citing Swint v. Chambers County Comm'n,
514 U.S. 35, 51 (1995)).

The state law issues in this case are whether the Walkers stated a
cognizable claim for malicious prosecution and whether Hall and
Mack are entitled to state common law immunity. These issues are
neither "inextricably intertwined with" nor"necessary" to our review
of the federal immunity questions. See id. Therefore, we cannot now
review the district court's rulings on the Walkers' state law claims.

In sum, the order of the district court denying appellants' motion
to dismiss the § 1983 claims based on qualified immunity is reversed.
The remainder of the appeal is dismissed, and the case is remanded
for such further proceedings as may be necessary.

REVERSED IN PART, DISMISSED IN PART, AND REMANDED
_________________________________________________________________
3 Our decision that the appellants are entitled to qualified immunity on
the federal claims obviates any need for us to address their contention
that they are absolutely immune from liability on those same claims.

                    10
