     Case: 16-31267      Document: 00514092078         Page: 1    Date Filed: 07/27/2017




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

                                                                                    FILED
                                                                                  July 27, 2017
                                      No. 16-31267
                                                                                 Lyle W. Cayce
                                                                                      Clerk
DARRIN HILL, individually and by and through his next friend Marie Hill;
MARIE HILL,

               Plaintiffs - Appellees

v.

ALLEN GRESSERT, New Orleans Police Department Detective; JOSEPH
HEBERT, New Orleans Police Department Officer; DANIEL
WAGUESPACK, New Orleans Police Department Crime Lab Criminalist,

               Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-2463


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Darrin Hill was charged with a crime he did not commit and spent nearly
twenty years in state custody before his exoneration. Hill individually and
through his mother as next friend (we will simply refer to Hill throughout) has
sued the law enforcement officers who handled his investigation. The district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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court has twice denied the individual defendants’ motions for summary
judgment based on qualified immunity. The defendants appealed from the
first denial, and we dismissed the appeal of one defendant, Detective Cathey
Carter, but remanded for factual development with respect to the remaining
defendants because “the only defendant the district court’s opinion ever tied to
bad conduct was Det. Carter.” Hill v. New Orleans City, 643 F. App’x 332, 337–
38 (5th Cir. 2016) (per curiam). We remanded “with instructions to consider
and determine with reasons whether each of the remaining defendants is
entitled to summary judgment based on qualified immunity.” Id. at 339. On
remand, the plaintiffs dismissed three of those defendants, and the parties
provided briefing on the remaining three defendants. Again, the district court
found summary judgment unwarranted. Hill v. New Orleans City, No. CV 13-
2463, 2016 U.S. Dist. LEXIS 176537 (E.D. La. Dec. 21, 2016). Those three
defendants (Joseph Hebert, Allen Gressert, and Daniel Waguespack) took this
second interlocutory appeal.
      We briefly survey the facts, which are set forth more completely in our
prior opinion. Hill, 643 F. App’x at 334–36. In 1992, near Lake Pontchartrain
in New Orleans, a woman was raped and her boyfriend’s car stolen. Detective
Carter of the New Orleans Police Department was one of the first officers to
arrive on the scene and ultimately led the investigation. She was supervised
by Hebert and assisted by Gressert. At the time in question, Waguespack was
a department criminalist and tested the victim’s underwear for semen, hair,
and blood—evidence he allegedly reported did not exist.          Based on her
investigation, but possibly without the actual test facts, Carter sought and
secured an arrest warrant for Darrin Hill. Hill was and is mentally ill, and he
spent the next seven years incarcerated but untried due to his mental
condition. In 1999, he was tried and found not guilty by reason of insanity—
an adjudication that meant he had committed the crime but was criminally
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insane. He spent the next thirteen years in state custody, at which point DNA
testing of the rape victim’s underwear conclusively established his innocence
(and the guilt of one Derrick Woodberry). Upon being freed, Hill sued. The
defendants before us have all asserted qualified immunity and sought
summary judgment on that basis.
      When a government official asserts qualified immunity, the burden is on
the plaintiff to show that the defendant violated the plaintiff’s clearly
established rights. See Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
“Where the district court has denied summary judgment on the ground that
material issues of fact exist as to the plaintiff’s claims, this court lacks
jurisdiction to review the court’s determination that a genuine fact issue
exists.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). Instead, we
“consider 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.” Kinney v. Weaver, 367 F.3d 337, 348 (5th
Cir. 2004) (en banc). Simply put, we ask if disputes of fact are material, not if
they are genuine. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).
      We must dismiss the appeals of defendants Hebert and Gressert.
Previously, we held that Carter was not entitled to summary judgment on the
basis of qualified immunity. The facts before us indicated wrongdoing on her
part that would rise to the level of clearly established constitutional violations.
See Hill, 643 F. App’x at 337–38. On remand, the district court found, as a
matter of fact, that Hebert and Gressert are implicated in the same
misconduct. We have no jurisdiction to question that determination.
      At most, there is perhaps uncertainty as to what particular wrongful acts
Hebert and Gressert performed. In such cases, “conspiracy may be charged
under section 1983 as the legal mechanism through which to impose liability
on all of the defendants without regard to who committed the particular act.”
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Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). The district court applied
this law of conspiracy in denying summary judgment, and the defendants have
shown no legal error in its application. Citing the intracorporate conspiracy
doctrine, however, they make the argument that an actionable conspiracy
between Carter, Hebert, and Gressert is legally impossible because they all
worked for the New Orleans Police Department. This argument was not made
in the district court, and we therefore do not consider it. 1 See LeMaire v. La
Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
       Waguespack’s appeal relies on different arguments.                           As previously
mentioned, during the time in question, Waguespack was a criminalist in the
New Orleans Police Department and was tasked with analyzing the victim’s
underwear. Hill’s complaint alleged that Waguespack “tested the underwear
worn by the victim immediately after the rape . . . [and] falsely reported that
no semen was present on the underwear. In fact, semen was present on the
underwear, and subsequent testing on sperm collected from the semen on the
underwear proved that it was deposited by Derrick Woodberry and not Darrin
Hill.” Hill’s complaint also alleged that “Waguespack either knowingly or
recklessly failed to conduct serological testing on the underwear to detect the
presence of seminal fluid and falsely reported that no seminal fluid was present
or did in fact conduct such testing and misreported the results.”
       For its part, the district court concluded that the genuine fact issue
regarding Waguespack was “whether he did phosphatase and microscopic
examinations or whether he only conducted a phosphatase examination.” Hill,
2016 U.S. Dist. LEXIS 176537, at *8–9. The district court made no findings
relevant to bad faith, 2 specifically, the district court did not make any findings

        1 For this reason, we need not address the impact, if any, of Ziglar v. Abbasi, 137 S. Ct. 1843

(2017), on this case.
       2Although the district court concluded that a jury could determine that Waguespack
“concealed” the alleged test, this statement appears to be a restatement of the “failing to
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that there are disputed facts that would suggest that (1) Waguespack would
have any reason to think the presence of sperm would be exculpatory (rather
than inculpatory, supporting a claim of rape), (2) there was any known suspect
who might be exonerated by the then-nascent science of DNA, or (3) there was
any basis to conclude Waguespack had a motivation to lie. See Hernandez v.
Mesa, 137 S. Ct. 2003, 198 L. Ed. 2d 625, 630 (2017) (per curiam) (a qualified
immunity analysis focuses on facts known to the officer at the time of the event
in question).
       With respect to the disputed facts the district court did find, we lack
jurisdiction to assess the genuineness of any factual dispute but not its
materiality. Assuming the version of the disputed facts found by the district
court that provides the best case for Hill’s position, then, the question is
whether Waguespack’s knowing failure to disclose testing that showed the
presence of sperm (not, it should be clear, a test that disclosed whose sperm it
was) violated clearly established law as of 1992, 3 when the actions occurred.
       Hill cites to no case law that would suggest that “concealing” the
presence of semen is the same as destroying or altering evidence.                       More
importantly, there is nothing to put Waguespack on notice that merely failing
to disclose the presence of semen, itself not exculpatory, and then preserving
(NOT destroying) the underwear itself would violate Hill’s constitutional
rights. In his brief to our court, Hill argued that Gressert and Hebert violated
clearly established law, but he made no such argument as to Waguespack; the


disclose” fact issue, and the district court did not explicate a finding of bad faith from that
asserted failure to disclose. There is no dispute that the “concealed test” would have revealed
only the presence of sperm. Nothing about “concealing” the presence of sperm in 1992 would
have equated to “tampering” or “altering,” which is the legal conclusion relevant here.

       3 As Waguespack’s brief explains it: “Even under the general qualified immunity
standard of objective unreasonableness, Waguespack is entitled to qualified immunity
because it was not obvious to someone in his position that failing to report this test would
violate anyone’s constitutional rights.”
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district court also did not address “clearly established law” as to Waguespack.
These omissions, alone, are fatal to his case against Waguespack. Cass v. City
of Abilene, 814 F.3d 721, 732–33 (5th Cir. 2016) (per curiam).
        Assuming arguendo that we should nonetheless address this ground, at
oral argument, Hill pointed to Brown v. Miller, 519 F.3d 231 (5th Cir. 2008),
as the case that provides the “clearly established law.” However, in that case,
the defendants had a known suspect, compared DNA samples from the crime
to the suspect’s samples, found the results either exculpatory or inconclusive,
and then lied about the results by saying they matched. Id. at 234–35. Brown
is quite a distance from even the worst of the allegations against Waguespack
here.    Drawing broad conclusions from its holding is incompatible with a
qualified immunity analysis. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(broad propositions and a high level of generality are insufficient for qualified
immunity purposes). In sum, Hill failed to defeat qualified immunity as to
Waguespack.
        Upon these grounds, we DISMISS the appeals of Hebert and Gressert,
and REVERSE as to Waguespack with instructions to the district court to
render judgment in favor of him on the ground of qualified immunity. We do
not overlook the defendants’ remaining arguments but find that they lack
merit sufficient to warrant discussion.




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                                  No. 16-31267
REAVLEY, Circuit Judge, dissenting:
      I dissent because on this interlocutory appeal this court has jurisdiction
of only issues of law, and we may not review the district court’s determination
that a genuine fact issue exists. See Kinney v. Weaver, 367 F.3d 337, 348 (5th
Cir. 2004) (en banc). This court today cites the law and then avoids it.
      The district court has found triable issues of fact as to what tests were
performed by Waguespack and whether his failure to report the results
concealed exculpatory evidence.
      What the defendant found by his examination, and its materiality may
be for the defendant to prove and the jury to decide.




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