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

                                                               FILED
                                                               April 11, 2008

                               No. 06-50568              Charles R. Fulbruge III
                                                                 Clerk

LACRESHA MURRAY; R L MURRAY, Individually and as next friend of Cleo
Murray, Jason Murray, Tyler Murray, and Trent Murray; SHIRLEY MURRAY,
Individually and as next friend of Cleo Murray, Jason Murray, Tyler Murray,
and Trent Murray; SHANTAY MURRAY, Individually

                                        Plaintiffs-Appellees-Appellants
v.

RONNIE EARLE, Etc; ET AL

                                        Defendants

DAYNA BLAZEY, Individually and as an Assistant District Attorney of Travis
County, Texas

                                        Defendant-Appellee

STEPHANIE EMMONS, Individually and as an Assistant District Attorney of
Travis County, Texas; ANGELA MCGOWN, Individually and as Supervisor of
the Travis County Child Protective Services; HECTOR REVELES, Individually
and as a Detective of the Austin Police Department; ERNEST PEDRAZA,
Individually and as a Detective of the Austin Police Department; ALBERT
EELLS, Individually and as a Detective of the Austin Police Department

                                        Defendants-Appellants



               Appeals from the United States District Court
                     for the Western District of Texas
                           USDC No. 1:02-CV-552
                                       No. 06-50568

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       For this interlocutory appeal, primarily at issue is whether LaCresha
Murray has alleged a violation of a clearly-established constitutional right,
depriving five Defendants of qualified immunity. Stephanie Emmons, Angela
McGown, Hector Reveles, Ernest Pedraza, and Albert Eells (Defendants-
Appellants) appeal the denial of summary judgment on their assertions of
qualified immunity regarding Murray’s Fourteenth Amendment claim and
official immunity, inter alia, for the related state-law civil-conspiracy claim.
Alternatively, Emmons appeals the district court’s jurisdiction to reinstate sua
sponte the earlier-dismissed Fourteenth Amendment claim. On cross-appeal,
Murray challenges the summary judgment awarded Dayna Blazey. VACATED
and RENDERED in part; DISMISSED in part; REMANDED.
                                              I.
       Previously, this action was here on an interlocutory appeal regarding the
qualified-immunity denial for Murray’s Fifth-Amendment claim. Murray v.
Earle, 405 F.3d 278, 283-84 (5th Cir. 2005) (Murray I). The facts pertinent to
this action are stated in that prior opinion:
       This case arises out of the investigation of plaintiff-appellee
       LaCresha Murray’s . . . involvement in the death of Jayla Belton,
       age two, in 1996. At the time of these events, LaCresha was eleven
       years old. She and her siblings lived with her grandparents, R.L.
       and Shirley Murray, who were her adoptive parents, as well. The
       Murrays also provided daycare in their home for several other
       children.
             Late in May of 1996, Jayla, who was routinely cared for by the
       Murrays, was dropped off at the Murray home by her mother’s
       boyfriend. During the course of the day, Jayla appeared to be ill.


       *
         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.

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After she vomited at the lunch table, LaCresha’s older sister,
Shantay, gave Jayla some medication and put her to bed. No one
checked on Jayla until later that day. R.L. Murray testified that,
late in the afternoon, LaCresha came in from outside and went to
the back of the house, near the bedroom where Jayla was sleeping.
R.L. then heard “thumping noises,” but he assumed that LaCresha
was playing with a ball and told her to stop. Shortly after that,
LaCresha told R.L. that Jayla was throwing up and shaking. He
asked her to bring Jayla to the front of the house, where he observed
that Jayla appeared ill. He told LaCresha to take Jayla outside to
warm her up.
       At 5:00 p.m., another parent arrived to collect her children
and noticed that Jayla was sweating profusely. That parent urged
R.L. to call 911, but he declined to do so. R.L. took Jayla to the
hospital, however; she was pronounced dead at approximately 5:30
p.m.
       An autopsy conducted the following day revealed that Jayla
had suffered a severe liver injury caused by a blunt blow to the
abdomen. This trauma had broken four of her ribs and split her
liver into two pieces. The medical examiner concluded that Jayla
had died within five to fifteen minutes after receiving the injury and
also noted some thirty other bruises to her head, ear, forehead,
back, shoulder, elbow, chest, and the left side of her torso. The
examiner ruled Jayla’s death a homicide.
       That same day, law-enforcement authorities removed all the
children from the Murray home. They placed LaCresha and one of
her sisters in Texas Baptist Children’s Home, a private shelter for
children which contracts with the State to provide foster care. At
the time that these children were removed from their adoptive
parents’ home, the authorities believed that they were in danger.
There is some dispute as to exactly when the police first began to
suspect that LaCresha had killed Jayla, but the focus of the
investigation had quickly shifted to LaCresha after law-enforcement
authorities spoke with other members of the household.
       Three days after LaCresha had been removed from her
adoptive parents’ home, Detective Reveles directed Detectives
Pedraza and Eells, along with Angela McGown, the supervisor of
the Travis County Child Protective Services, to interview LaCresha.
It is undisputed that, by this time, the police no longer feared for
LaCresha’s safety but instead considered her a suspect in Jayla’s
death.


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             Before the interview of LaCresha, Detectives Reveles and
      Pedraza consulted with assistant district attorney Emmons on the
      proper method of interrogating LaCresha. Emmons testified that,
      even though LaCresha had been at the Texas Baptist Children’s
      Home for three days, none of the officials believed that she was in
      the custody of the State. In their minds, this obviated the need for
      them to take her before a magistrate, as required by Texas law for
      children who are in state custody. Pedraza and Eells gave
      LaCresha a Miranda warning before beginning to interrogate her,
      but they did not take her before a magistrate or notify her parents
      or attorney.
             The detectives questioned LaCresha at the Baptist Children’s
      Home for approximately two hours, eventually eliciting a confession
      that she had dropped Jayla and kicked her. The State then charged
      her with capital murder and injury to a child; the juvenile court
      ruled her confession admissible; and the jury convicted her of
      negligent homicide and injury to a child. Extensive publicity
      followed, presumably influencing the juvenile court to order a new
      trial on its own motion. At the second trial, the State charged
      LaCresha with injury to a child; her confession was again admitted;
      and the second jury convicted her. The juvenile court adjudicated
      LaCresha delinquent and sentenced her to twenty-five years in the
      custody of the Texas Youth Commission.
             Three years later, the Texas Court of Appeals reversed
      LaCresha’s conviction. The appellate court ruled that LaCresha had
      been in the custody of the State, that law-enforcement authorities
      had violated Texas law by not taking her before a magistrate prior
      to interrogating her, and that her confession was therefore
      inadmissible.

Murray I, 405 F.3d at 283-84 (footnotes omitted).
      Pursuant to 42 U.S.C. § 1983, Murray filed this action in 2002 for damages
against numerous individuals for violations of her constitutional rights under
the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and
for state-law violations. On motions for summary judgment, the district court
dismissed all claims, except those against Blazey and Defendants-Appellants for
violations of Murray’s Fifth Amendment right against self-incrimination and for
related state-law civil conspiracy.

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      As noted supra, an interlocutory appeal was pursued from the immunity-
denial for those two remaining claims.       This court vacated the qualified-
immunity denial for the Fifth Amendment claim, holding, pursuant to the
qualified-immunity analysis discussed infra, that the law was not yet clearly
established that pre-trial interrogation of a suspect could expose an official to
liability for violation of the suspect’s Fifth Amendment rights. Murray I, 405
F.3d at 293. Our court also held Defendants-Appellants had official immunity
against the related state-law civil-conspiracy claim. Id. at 294-95.
      On remand, the district court entered judgment for Defendants-Appellants
on, inter alia, the Fifth Amendment claim; but, on the other hand, it reinstated
sua sponte the previously-dismissed Fourteenth Amendment substantive-due-
process and related state-law civil-conspiracy claims. Defendants-Appellants
requested summary judgment on those claims, asserting: for the federal-law
claim, qualified immunity; and, for the state-law claim, official immunity and
immunity under the Texas Tort Claims Act. The district court granted summary
judgment to Blazey on those claims, but denied it for Defendants-Appellants.
                                       II.
      For this interlocutory appeal, only Emmons challenges the district court’s
jurisdiction to reinstate sua sponte the earlier-dismissed Fourteenth
Amendment, and related state-law, claims. Defendants-Appellants contest the
denials of qualified immunity on that constitutional claim and of state-law
immunity for the related civil-conspiracy claim.        Murray cross-appeals,
contesting the qualified-immunity judgment for Blazey.
                                       A.
      Emmons maintains Murray I precluded the district court’s sua sponte
reinstatement, on remand, of the Fourteenth Amendment claim. That decision,
however, concerned only the qualified-immunity denial for the Fifth Amendment
claim. Murray I, 405 F.3d at 285.

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      Needless to say, the Murray I interlocutory review extended only to the
district court’s immunity-denial for the Fifth Amendment and related state-law
claims. E.g., Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (“Under the
collateral order doctrine . . . a district court’s ‘order denying qualified immunity,
to the extent that it turns on an ‘issue of law’ is immediately appealable’”.
(quoting Behrens v. Pelletier, 516 U.S. 299, 306, 311 (1996))); see also Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). Our court, therefore, was without jurisdiction
to review, inter alia, the district court’s Rule 12(c) (judgment on the pleadings)
dismissal of the Fourteenth Amendment claim. On remand, the reinstatement
of the Fourteenth Amendment, and related state-law, claims was within the
district court’s jurisdiction.
                                          B.
      As noted, the “district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment”. Mitchell, 472 U.S. at 530; see also Collins v. Ainsworth, 382 F.3d
529, 536 (5th Cir. 2004) (“This Court has interlocutory jurisdiction to determine
the legal question of whether Plaintiffs’ summary judgment facts state a § 1983
claim under clearly established law.”).        Similarly, “orders denying official
immunity under Texas law are immediately appealable to the same extent as
denials of qualified immunity under federal law”. Kinney v. Weaver, 367 F.3d
337, 346 n.7 (5th Cir. 2004) (en banc).
      A summary judgment is reviewed de novo, applying the same standards
as the district court. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d
255, 260 (5th Cir.), cert denied 128 S. Ct. 181 (2007).          Accordingly, such
immunity-denial is reviewed de novo. E.g., Rutland v. Pepper, 404 F.3d 921, 923
(5th Cir. 2005). The well-pleaded facts are accepted as true, viewing them in the
light most favorable to the plaintiff. E.g. Atteberry v. Nocona Gen. Hosp., 430

                                          6
                                   No. 06-50568

F.3d 245, 252 (5th Cir. 2005). As noted, the scope of our review, however, for an
immunity-denial is restricted to the district court’s legal conclusions. Foley v.
Univ. of Houston Sys., 355 F.3d 333, 337 (5th Cir. 2003) (“The district court’s
determination that fact issues are genuine is not appealable. However, [its]
determination that fact issues are material, that is, that resolution of them
might affect the outcome of the case under governing law, is appealable . . . .”).
                                         1.
      In general, the qualified-immunity doctrine shields government officials
from civil liability if “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); see also Wallace v. County of
Comal, 400 F.3d 284, 289 (5th Cir. 2005). Qualified immunity is a defense
required to be raised by the official, and should be addressed by a district court
in the early stages of litigation. E.g., Siegert v. Gilley, 500 U.S. 226, 231 (1991).
      Determining whether an official is entitled to qualified immunity can
involve two steps. The first step concerns “whether [, under then existing law,]
a plaintiff has successfully alleged facts showing the violation of a statutory or
constitutional right by [government] officials”. Rutland, 404 F.3d at 923; see also
Saucier v. Katz, 533 U.S. 194, 200 (2001) (clarifying that “the first inquiry must
be whether a constitutional right would have been violated on the facts alleged”);
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).
      If such a violation is alleged, the second step involves first determining
whether that right was clearly established when the official acted.             E.g.,
Martinez v. Tex. Dep’t of Criminal Justice, 300 F.3d 567, 576 (5th Cir. 2002); see
also Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (A right is
“clearly established” when its contours are “sufficiently clear that a reasonable
official would understand that what he is doing violates that right”. (citation and
internal quotation marks omitted)). If it was then clearly established, next

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examined is whether the official’s conduct was objectively reasonable in the light
of that law. E.g., McClendon, 305 F.3d at 323.
       “If [, under the first step,] no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries [,
under the second step,] concerning qualified immunity.” Saucier, 533 U.S. at
201.   Because Murray fails to allege conduct establishing a violation of a
constitutional right, we proceed no further than the first step.
       Murray maintains she alleged a violation of a Fourteenth Amendment
substantive-due-process right. It is well settled: “Regardless of the theory of
liability that a plaintiff is pursuing, in order to state a viable substantive due
process claim the plaintiff must demonstrate that the state official acted with
culpability beyond mere negligence”. McClendon, 305 F.3d at 325 (emphasis
added); see County of Sacramento v. Lewis, 523 U.S. 833, 846-849 (1998) (holding
mere negligence “is categorically beneath the threshold of constitutional due
process”).   Restated, a plaintiff must allege conduct which “shocks the
conscience”. County of Sacramento, 523 U.S. at 846-47; see also McClendon, 305
F.3d at 325-26. Therefore, to satisfy the first step for this court’s qualified-
immunity analysis, Murray must have alleged such conduct. As shown below,
she failed to do so.
       Murray maintains Defendants-Appellants violated her Fourteenth
Amendment substantive-due-process right by depriving her of “life, liberty, and
property without due process of law and denied [her] the equal protection of the
laws”. She alleges Defendants-Appellants violated her constitutional right by:
not “advis[ing] her . . . she was a suspect in the murder of Jayla Belton”; and not
properly advising her of her Miranda rights and protection afforded under the
Texas Family Code. Murray maintains Detective Pedraza ordered an illegal
removal of all children from her grandparents’ residence and improperly
attempted to take a statement from her. She alleges Assistant District Attorney

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Emmons and Detectives Pedraza, Eells, and Reveles refused to inform the Texas
Protective Services caseworker of her status as a suspect.
      Regarding Defendants-Appellants’ plan to interrogate her, Murray
maintains McGown (Supervisor of the Travis County Child Protective Services)
and the three Detectives conspired to question her without the indicia of custody,
in order to avoid constitutional requirements, such as the right to counsel. She
alleges: Defendants-Appellants discussed how to legally question an eleven-
year-old; and Assistant District Attorney Emmons advised the Detectives how
to avoid custodial interrogation. Regarding her interrogation, she alleges only:
Detectives Pedraza and Eells attempted to “Mirandize” her prior to questioning;
and the interrogation lasted two hours and 40 minutes.
      Murray maintains the above-stated allegations give rise to a Fourteenth
Amendment violation. Viewing the evidence in the light most favorable to her,
see McClendon, 305 F.3d at 323, she fails to allege Defendants-Appellants
engaged in conduct that shocks the conscience. Instead, she simply alleges
Defendants-Appellants, while investigating the death of Jayla Belton, attempted
to determine (and follow) the proper procedure for questioning an eleven-year-
old. Murray has, at most, asserted negligence, which, as stated, does not give
rise to a constitutional violation. See County of Sacramento, 523 U.S. at 846-49.
Therefore, Defendants-Appellants are entitled to qualified immunity.
                                        2.
      Defendants-Appellants maintain they are entitled to official immunity for
the related state-law civil-conspiracy claim. Alternatively, they claim qualified
immunity pursuant to the Texas Tort Claims Act. Although Murray lists these
state-law immunity claims in her brief’s statement of issues, she fails to address
either claim.
      “Official immunity is an affirmative defense that shields governmental
employees from personal liability so that they are encouraged to vigorously

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                                  No. 06-50568

perform their official duties.” Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.
2002) (citation omitted).    “A governmental employee is entitled to official
immunity for (1) the performance of discretionary duties (2) that are within the
scope of the employee’s authority, (3) provided that the employee acts in good
faith.” Id. at 461 (citations omitted).
      It is undisputed Defendants-Appellants were performing discretionary
functions and acting within the scope of their authority. At issue, therefore, is
whether they acted in good faith. Defendants-Appellants are entitled to official
immunity from Murray’s state-law claim if a reasonable prudent official, under
the same or similar circumstances, could have believed their actions were
correct. See City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994).
      As discussed, Murray I held Defendants-Appellants officially immune from
Murray’s state-law claim that they conspired to deprive her of Fifth Amendment
rights. 405 F.3d at 294-95. Our court ruled: “the officers did not conceal from
the Texas trial court any of the circumstances surrounding [Murray]’s
interrogation and, therefore, that they did not cause the violation of her rights”.
Id. at 295.
      Our analysis for the Fourteenth Amendment, and related state-law, claims
is identical. Murray shows no bad-faith conduct on the part of Defendants-
Appellants. Indeed, they establish, as they did in Murray I, that all actions were
performed in good faith. As stated supra, Defendants-Appellants attempted
legally to question an eleven-year-old suspected of murder.          Defendants-
Appellants are, therefore, entitled to official immunity from the state-law civil-
conspiracy claim. (Accordingly, we need not reach immunity vel non under the
Texas Tort Claims Act.)
                                          C.
      Finally, Murray cross-appeals the qualified-immunity summary judgment
for Blazey. As stated supra, only a qualified-immunity denial is immediately

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appealable pursuant to the collateral-order doctrine. See Kinney, 367 F.3d at
346. Jurisdiction is lacking to review the summary judgment for Blazey because
it is neither a final decision nor an appealable interlocutory order. See 28 U.S.C.
§§ 1291, 1292. Restated, qualified-immunity grants can be reviewed only after
final judgment. See Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985).
                                       III.
      For the foregoing reasons, the summary judgment denying federal and
state-law immunity is VACATED and judgment is RENDERED for Defendants-
Appellants Emmons, McGown, Reveles, Pedraza, and Eells; Murray’s cross-
appeal is DISMISSED for lack of jurisdiction; and this matter is REMANDED
for further proceedings consistent with this opinion.




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