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

                                                 FILED
                                                                           August 20, 2009

                                       No. 08-10790                    Charles R. Fulbruge III
                                                                               Clerk

VICTOR ALVARADO DELEON

                                           Plaintiff-Appellee-Cross-Appellant
v.

CITY OF DALLAS

                                           Defendant-Cross Appellee
v.

MARK DE LA PAZ

                                           Defendant-Appellant-Cross-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:02-CV-1097


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Two questions are presented by this appeal: (1) whether the district court
properly denied summary judgment on the basis of qualified immunity to Dallas
police officer Mark De La Paz on Victor Alvarado DeLeon’s false arrest claim,
and (2) whether the district court properly granted summary judgment to the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10790

City of Dallas (“the City”) on DeLeon’s Title VI claim.                We AFFIRM (and
therefore remand) the first issue and DISMISS the second as we lack jurisdiction
to consider it.
                                              I.
       This court has already issued multiple substantive rulings arising out of
the very lawsuit underlying this appeal.             We therefore refer to one of our
previous decisions, DeLeon v. City of Dallas, 141 F. App’x 258, 259-60 (5th Cir.
2005), for a statement of the relevant facts.
                                             II.
                                             A.
       The standard of review that this court applies in an interlocutory appeal
asserting qualified immunity differs from the standard employed in most
appeals of summary judgment rulings. Kinney v. Weaver, 367 F.3d 337, 347 (5th
Cir. 2004) (en banc). In an interlocutory appeal, this court lacks the power to
review the district court’s decision that a genuine factual dispute exists and
reviews only “whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported for purposes
of summary judgment.” Id. at 348. We accept the plaintiff’s version of the facts
as true, id., and review de novo the district court’s legal determination as to the
materiality of the identified fact issues. Lemoine v. New Horizons Ranch & Ctr.,
Inc., 174 F.3d 629, 634 (5th Cir. 1999). However, where, as here, the district
court did not identify the genuine issues of material fact,1 we have the option to
“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



       1
        In denying De La Paz’s motion for summary judgment on the basis of qualified
immunity, the district court simply stated, “there are genuine issues of material fact present
that preclude the entry of summary judgment, and the court therefore denies summary
judgment on this claim.”

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                                   No. 08-10790

clarify the order.” Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir.
2001); see also Colston v. Barnhart, 146 F.3d 282, 285 (5th Cir. 1998) (the
appellate court has the authority to “conduct an analysis of the summary
judgment record to determine what issues of fact the district court probably
considered” in denying summary judgment.).
      Qualified immunity protects public officials from suit unless their conduct
violates a clearly established constitutional right. Mace v. City of Palestine, 333
F.3d 621, 623 (5th Cir. 2003). Once the defense of qualified immunity is raised,
the plaintiff has the burden to establish facts that overcome the defense. Collier
v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009). The plaintiff must show that:
(1) the defendant’s conduct violated a constitutional right, and (2) the
defendant’s conduct was objectively unreasonable in light of clearly established
law as it existed at the time of the conduct in question. Id. Courts may “exercise
their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
         The right to be free from arrest without probable cause is a right secured
by the Fourth Amendment. Daniel v. Ferguson, 839 F.2d 1124, 1129 (5th Cir.
1988).    “The Supreme Court has defined probable cause as the facts and
circumstances within the officer’s knowledge that are sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (internal
quotation marks and citations omitted). Probable cause cannot exist where the
affidavit supporting a warrant contains material false statements or omissions
that are deliberate falsehoods or evidence a reckless disregard for the truth.
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).



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                                        No. 08-10790

       As the two-prong qualified immunity test is applied to this case, we cannot
say that the district court committed reversible error in denying De La Paz
summary judgment on the basis of qualified immunity. The second prong of the
analysis is easily satisfied here. When De La Paz submitted his affidavit, the
law was clearly established, and a reasonable officer would have known, that a
government official violates the Fourth Amendment when he deliberately
provides false, material information in an affidavit in support of a warrant. See
Hart v. O’Brien, 127 F.3d 424, 448-49 (5th Cir.), abrogated on other grounds by
Kalina v. Fletcher, 522 U.S. 118 (1997).
       As for the first prong, we agree with the district court that a material fact
issue exists as to whether De La Paz’s conduct violated DeLeon’s Fourth
Amendment rights. DeLeon was arrested twice – once on April 19, 2001, and
again on June 11, 2001. After DeLeon’s April 19 arrest, De La Paz submitted an
arrest warrant affidavit, alleging that he witnessed DeLeon participate in a drug
transaction and requesting that an arrest warrant be issued on these charges.
DeLeon claims that De La Paz submitted the affidavit knowing that the
information it contained was false, and denies participating in or even the
occurrence of a drug transaction on April 19. De La Paz has not challenged
DeLeon’s allegations, defended his affidavit, or pointed to alternate probable
cause for the June 11 arrest. DeLeon spent approximately three months in jail
as a result of the June 11 arrest. It is undisputed that the warrant issued as a
result of De La Paz’s affidavit was the only basis for probable cause for the June
11 arrest.2 Thus, whether the drug transaction occurred and whether De La Paz



       2
         De La Paz’s main argument to this court is that the April 19 arrest, which was made
by other officers, was supported by the alternate probable cause that DeLeon was an
undocumented alien. Because we conclude that the June arrest was based solely on De La
Paz’s false affidavit, we need not address the dubious argument that an officer can give a
knowingly false affidavit and avoid liability by the fortuity that, after the fact, he may be able
to argue some other basis for the arrest.

                                                4
                                          No. 08-10790

knowingly falsified his affidavit are fact issues material to whether De La Paz’s
conduct violated DeLeon’s Fourth Amendment right to be free from arrest absent
probable cause. The district court’s ruling on this point should be affirmed and
the case remanded for trial.


                                                 B.
      Turning to DeLeon’s claim against the City, as a general rule, “‘a partial
disposition of a multi-claim or multi-party action does not qualify as a final
decision . . . and is ordinarily an unappealable interlocutory order.’” Thompson
v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985) (quoting Huckeby v. Frozen Food
Express, 555 F.2d 542, 545-46 (5th Cir. 1977)).               As a result of the ruling
regarding De La Paz, the judgment for the City is not final. Because none of the
statutory 3 or jurisprudential4 exceptions to this general rule apply here, we do
not have jurisdiction to consider whether the district court properly granted
summary judgment to the City on DeLeon’s Title VI claim. Without jurisdiction,
we must dismiss this portion of the appeal. Stanley v. CIA, 639 F.2d 1146, 1157
(5th Cir. Unit B 1981).
                                                III.
      AFFIRMED and REMANDED in part, DISMISSED in part.




      3
          See 28 U.S.C. § 1292(b); FED . R. CIV . P. 54(b).
      4
         See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949) (collateral
order doctrine); Forgay v. Conrad, 47 U.S. 201, 204 (1848) (hardship-irreparable injury);
United States v. Garner, 749 F.2d 281, 287-88 (5th Cir. 1985) (orders putting the party
“effectively out of court”).

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