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

                                                                            FILED
                                                                            April 9, 2008

                                       No. 07-10278                   Charles R. Fulbruge III
                                                                              Clerk

DANIEL F RHODES

                                                  Plaintiff - Appellee
v.

TIBOR PRINCE; WILLIAM HARRIS; JAMES F ROACH, III; GARY
KROHN; JERRY D CARROLL

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CV-02343


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Daniel Rhodes, a crime scene investigator, filed suit against five police
officers, alleging that they conspired to violate his constitutional rights. The
officers promptly filed a motion to dismiss, arguing that qualified immunity
shielded them from suit. The district court held that Rhodes’s allegations, if
true, would establish that the officers were entitled to qualified immunity on all
but one of Rhodes’s causes of action: his First Amendment retaliatory


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10278

prosecution claim. The officers have now brought this interlocutory appeal,
contending that they are entitled to qualified immunity on Rhodes’s retaliatory
prosecution claim as well. For the reasons that follow, we hold that Rhodes’s
First Amendment retaliatory prosecution claim is not supported by the
pleadings, but his claim for unlawful arrest may be pursued.
       1.       We review de novo the district court’s denial of the officers’ motion
                to dismiss on their defense of qualified immunity.1 To escape the
                grip of the officers’ qualified immunity defense, Rhodes must
                establish that on the facts alleged, he has made out his First
                Amendment retaliatory prosecution claim.2 Rhodes cannot do this.
       2.       As part of his claim, Rhodes admits he must establish the elements
                of a malicious prosecution claim.3 The officers argue that Rhodes’s
                allegations do not establish one element of that cause of
                action—that a “criminal action was commenced against him.”4 The
                officers contend that Rhodes’s only attempt to meet this element is
                his conclusory allegation that he was “arrested.” The officers argue
                that being arrested does not mean a criminal action was commenced
                against you.
                        Texas courts have apparently never addressed whether an
                arrest is sufficient to establish a malicious prosecution claim. But
                as Rhodes points out, Texas courts typically follow the Restatement



       1
           Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005).
       2
        See Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004) (noting that the first
inquiry for the familiar two-part qualified immunity test requires the court to determine
whether a constitutional right has been violated on the facts the plaintiff has pleaded).
       3
           Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005).
       4
        See Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994) (listing the elements of malicious
prosecution).

                                                2
                                  No. 07-10278

          in delineating the scope of the tort of malicious prosecution,5 and the
          Restatement counsels that an “arrest” can satisfy the criminal-
          action-commenced-against-you prong of the malicious-prosecution
          test.6      But a closer look at the Restatement sinks Rhodes’s
          claim—simply pleading an “arrest” is not enough.                     Instead,
          according to the Restatement, the arrest must be lawful; as the
          Restatement explains:
                   Even without the issuance of any process, or indictment
                   or information, criminal proceedings may be instituted
                   by lawful and valid arrest of the accused on a criminal
                   charge. If the arrest is not a valid one, an action for
                   malicious prosecution will not lie unless some further
                   step is taken, such as bringing the accused before a
                   magistrate for determination whether he is to be held.7
                   If the arrest is not lawful, the defendant can still be held
          liable, just not under a theory of a First Amendment retaliatory
          prosecution claim; instead, as the Restatement notes, the plaintiff
          could have a claim for false imprisonment (i.e., false arrest, a Fourth
          Amendment claim):
                   If there is nothing more than the false arrest and the
                   accused is released without any further proceeding, his
                   remedy is an action for false imprisonment. . . . If the
                   arrest is valid and lawful, false imprisonment will not
                   lie.8
                   But Rhodes has not pleaded that he was lawfully arrested;
          instead, he pleaded that he was unlawfully arrested. Rhodes’s



5
    See, e.g., Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 509 (Tex. 2002).
6
    RESTATEMENT (SECOND) OF TORTS § 654 (1977).
7
    Id.
8
    Id.

                                         3
                              No. 07-10278

        primary basis for claiming he was arrested can be found in his Rule
        7(a) reply; there, he alleges:
              Defendant [Officer] Roach intentionally and falsely
              arrested, fingerprinted, detained, interrogated and
              prosecuted Rhodes, when he knew such conduct was a
              violation of Rhodes’s Fourth Amendment right to be
              free from unlawful search and seizures.
              Elsewhere, Rhodes describes his arrest as “illegal.” Thus,
        Rhodes has no malicious prosecution claim and the officers should
        therefore have been granted qualified immunity on Rhodes’s First
        Amendment retaliatory prosecution claim.
              This is not to say, however, that Rhodes may not be able to
        successfully pursue a Fourth Amendment claim. While the district
        court dismissed his Fourth Amendment claim, Rhodes still has the
        opportunity to pursue that cause of action. That matter can be
        taken up by the district court on remand.
VACATED and REMANDED.




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