                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 23, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-30762


STEVEN WAYNE MILLER; ET AL.,

                                      Plaintiffs,

STEVEN WAYNE MILLER; PATRICIA DIANE
PRICHARD; BENJAMIN JAMES PRICHARD,

                                      Plaintiffs - Appellees,

   v.

THEODORE RISER, JR., Sheriff; ET AL.,

                                      Defendants,

THEODORE RISER, JR., Sheriff; J. E. MORTON, individually
and in his official capacity; SHAWN GRIFFITH, individually
and in his official capacity,

                                      Defendants - Appellants.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 00-CV-1505
                       --------------------

Before DAVIS, SMITH and DUHÉ, Circuit Judges.

PER CURIAM:*

     Deputies Shawn Griffith and J.E. Morton appeal from the

denial of their motion for summary judgment on the basis of

qualified immunity.   Sheriff Theodore Riser, Jr., appeals from

     *
        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that this opinion should not be published and is not precedent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. 02-30762
                                -2-

the order reinstating the state-law claims against him in a civil

action arising from an incident involving Steven Wayne Miller and

Patricia Diane Prichard.

     The district court denied Griffith and Morton’s summary

judgment motion because it found that genuine issues of material

fact exist regarding the deputies’ entitlement to qualified

immunity on the plaintiffs’ false arrest, malicious prosecution,

and excessive force claims.   Given that the district court based

its denial of summary judgment on the existence of a genuine

issue of material fact, our jurisdiction on appeal is limited to

considering the materiality of these factual disputes.    Hatfield

v. Scott, 306 F.3d 223, 225 (5th Cir. 2002).   As a consequence,

we must ask whether, assuming all of the plaintiffs’ allegations

are true, those facts are sufficient to establish that defendants

acted in an objectively unreasonable manner. Id.

     We conclude that the district court did not err by

concluding that genuine issues of material fact existed on

plaintiffs’ Fourth Amendment claims.   See Castellano v. Fragozo,

No. 00-50591, 2003 WL 22881590 (5th Cir. Dec. 5, 2003)(en banc);

Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 754 (5th Cir.

2001)(probable cause for arrest); Williams v. Bramer, 180 F.3d

699, 703-04(5th Cir. 1999)(excessive force); Rankin v.

Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993)(qualified immunity).

Here the facts supporting the arrest were placed before a neutral

magistrate, and his finding of probable cause may have insulated
                             No. 02-30762
                                  -3-

the officers from liability.     Taylor v. Gregg, 36 F.3d 453, 456

(5th Cir. 1994).   But plaintiffs have introduced a genuine issue

of material fact as to whether the magistrate’s probable cause

determination was “tainted by the malicious actions of the

government officials,” Gordy v. Burns, 294 F.3d 722, 728 (5th

Cir. 2002), making the district court’s denial of summary

judgment here appropriate.

     Sheriff Riser contends that the district court erred by

reinstating the state-law claims against him.    This claim does

not relate to the appeal from the district court’s denial of

qualified immunity, and therefore we do not have jurisdiction to

review this claim.   Hatfield v. Scott, 306 F.3d 223, 225 (5th

Cir. 2002).

     The deputies and Sheriff Riser contend that the civil action

against them was barred by Heck v. Humphrey, 512 U.S. 477 (1994),

because it attacked the validity of the state court’s pretrial

probable cause determinations.    This court has jurisdiction to

address Heck in an interlocutory appeal.     Wells v. Bonner,

45 F.3d 90, 92, 94-95 (5th Cir. 1995).

     Pursuant to Heck,

     when a state prisoner seeks damages in a § 1983 suit,
     the district court must consider whether a judgment in
     favor of the plaintiff would necessarily imply the
     invalidity of his conviction or sentence; if it would,
     the complaint must be dismissed unless the plaintiff
     can demonstrate that the conviction or sentence has
     already been invalidated.
                           No. 02-30762
                                -4-

Heck, 512 U.S. at 487.   Because Miller and Prichard were not

convicted, the civil action was not barred by Heck.

     As we recently held in Castellano, “‘malicious prosecution’

standing along is no violation of the U.S. Constitution and that

to proceed under 42 U.S.C. § 1983 such a claim must rest on the

denial of a right secured under federal not state law.”   No. 00-

50591 2003 WL 22881590 at *1.    Accordingly, we vacate the denial

of qualified immunity on this claim and consistent with

Castellano give the district court discretion on remand to allow

plaintiff an opportunity to amend to assert a state law malicious

prosecution claim.

     The judgment of the district court is AFFIRMED IN PART,

VACATED IN PART and REMANDED.
