                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                                                                                May 10, 2004
                    IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT
                                                                          Charles R. Fulbruge III
                                                                                  Clerk
                                        No. 03-20541



DON R. DAVIS, SR.; LINDA L. DAVIS

                           Plaintiffs — Appellants

versus


BRAZOS COUNTY TEXAS; ET AL

                           Defendants

BRAZOS COUNTY TEXAS; ALVIN JONES, County Judge, County Commissioners Court;
BILL TURNER, Individually, and as District Attorney; DOUGLAS HOWELL, Individually, and
as Assistant District Attorney; MARGARET LALK, Individually, and as Assistant District
Attorney; JOHN DELANEY, Individually, Department of Community Supervision; TEXAS A &
M UNIVERSITY; Dr RAY BOWEN, President; ROBERT WIATT, Individually, and as Director
of Traffic and Security; JAMES LINDHOLM, Individually, and as University Police Detective;
TEXAS DEPARTMENT OF PUBLIC SAFETY; THOMAS DAVIS, Colonel, Director; DAVID
HULLOM, Individually, Texas Ranger and DPS Officer; ROBERT JOHNSON, FBI Special
Agent; DEPARTMENT OF COMMUNITY SUPERVISION

                           Defendants — Appellees

                                     --------------------
                        Appeal from the United States District Court
                        for the Southern District of Texas, Houston
                                        4:01cv1613
                                     --------------------

Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.




                                             1
PER CURIAM:*

       Appellants Don Davis, Sr. and Linda Davis filed suit against Appellees for alleged

violations stemming from criminal prosecutions brought against them. Appellants appeal from the

district court’s dismissal of their claims against various Appellees. After reviewing the record and

the briefs submitted by the parties, we affirm the judgment of the district court for the following

reasons:

       1)      Appellants’ complaint consists of conclusory allegations lacking sufficient

               supporting facts. See Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989) (“In

               order to avoid dismissal for failure to state a claim, a plaintiff must plead specific

               facts, not mere conclusory allegations.”).

       2)      Even assuming Appellants have pleaded valid claims, the statute of limitations

               would have barred such claims. Appellants failed to adequately allege a

               conspiracy; their allegations that Appellees conspired to violate their constitutional

               rights are conclusory and insufficient. See Arsenaux v. Roberts, 726 F.2d 1022,

               1024 (5th Cir. 1982) (“Mere conclusory allegations of conspiracy cannot, absent

               reference to material facts, survive a motion to dismiss.”). Moreover, any

               potential claims arising from the criminal prosecutions against them occurred

               outside of the applicable statutes of limitations. Appellants’ claims are, therefore,

               barred by the applicable statutes of limitations. See TEX. CIV. PRAC. & REM. CODE

               §§ 16.002(a), 16.003(a) (2004).


       *
          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.

                                                  2
       3)     Finally, because Appellants failed to allege specific violations of any clearly

              established constitutional rights, they failed to overcome Appellees’ immunity

              defenses. As prosecutors, Appellees Turner, Howell, and Lalk are entitled to

              absolute immunity for their conduct “in initiating a prosecution and in presenting

              the State’s case,” insofar as such conduct was “intimately associated with the

              judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31

              (1976). To the extent these Appellees functioned as administrators rather than as

              officers of the court, they are entitled to qualified immunity. See Buckley v.

              Fitzsimmons, 509 U.S. 259, 273 (1993). The other government officials are also

              entitled to qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818

              (1982). Because Appellants failed to allege specific violations of any clearly

              established constitutional rights, they failed to overcome Appellees’ qualified

              immunity. See Nunez v. Simms, 341 F.3d 385, 387 (5th Cir. 2003) (“The plaintiff’s

              showing of a violation of a clearly established constitutional right is a ‘prerequisite’

              to overcoming the qualified immunity defense.”) (citing Martinez v. Tex. Dep’t of

              Crim. Justice, 300 F.3d 567, 576-77 (5th Cir. 2002)). Appellants’ failure to plead

              a violation of their federal rights also renders their claims against Brazos County

              unavailing. See Becerra v. Asher, 105 F.3d 1042, 1047-48 (5th Cir. 1997)

              (“Without an underlying constitutional violation, an essential element of municipal

              liability is missing.”). 1


       1
        Although Appellants also assert that the district court erred in prohibiting discovery
pending a ruling on Appellees’ pending motions, we find no error. See Vander Zee v. Reno, 73
F.3d 1365, 1368-69 (5th Cir. 1996) (“Even limited discovery on the issue of qualified immunity

                                                 3
        For these reasons, we affirm the judgment of the district court.

        AFFIRMED.




must not proceed until the district court first finds that the plaintiff’s pleadings assert facts which,
if true, would overcome the defense of qualified immunity.”) (internal quotation marks and
citation omitted).

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