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

                                                 FILED
                                                                            July 24, 2009

                                     No. 08-10991                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MICHELLE BROWN; HELEN WYATT; YVONNE TAYLOR;
LEROY MITCHELL

                                                   Plaintiffs - Appellants
v.

UNITED STATES POSTAL SERVICE; CARLOS ONTRIVEROS; SPECIAL
AGENT FOR THE UNITED STATES POSTAL SERVICE

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1869


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Michelle Brown, Helen Wyatt, Yvonne Taylor, and Leroy Mitchell
(collectively, “Appellants”) appeal the district court’s grant of Carlos Ontriveros’s
(“Ontriveros”) motion to dismiss. For the reasons set forth below, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10991

                        FACTS AND PROCEEDINGS
      Appellants are former participants in the Housing Choice Voucher
Program which is one of the federal housing programs funded by the U.S.
Department of Housing and Urban Development (“HUD”). In Dallas, Texas and
surrounding suburbs, the program is administered by the Dallas Housing
Authority (“DHA”). In late 2000, due to complaints from a home owner who
claimed that rental subsidies were not properly forwarded, Appellants came
under investigation. Ontriveros, in his capacity as Special Agent in HUD’s
Office of Inspector General, spearheaded that investigation which continued for
several years and ultimately culminated in the indictments and arrests of
Appellants. The cases against each of the Appellants were eventually dismissed.
Appellants then sued numerous entities and individual defendants; only the
claims against Ontriveros are currently before this court. Appellants’ claims
included a variety of state law claims as well as First, Fourth, and Fifth
Amendment claims arising from alleged acts of retaliation taken by Ontriveros
in his capacity as Special Agent.
      Ontriveros moved to dismiss, asserting the defense of qualified immunity
and, in the alternative, arguing that Appellants failed to state a claim upon
which relief may be granted. The district court granted the motion to dismiss
based on qualified immunity, giving Appellants additional time to provide
further factual detail to defeat Ontriveros’s qualified immunity defense. Even
with this supplementary filing, the district court determined that Appellants
had failed to provide sufficient factual allegations to survive Defendant’s motion
to dismiss. Appellants timely appealed.
                           STANDARD OF REVIEW
      We review de novo the grant of a motion to dismiss based on qualified
immunity. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). To survive a
motion to dismiss, “the plaintiff must plead enough facts to state a claim to relief

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that is plausible on its face.” See In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (internal quotations and citation omitted).            “[A]
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). In effect, “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Id. All well-
pleaded facts are accepted as true and viewed in the light most favorable to the
plaintiff. Brown, 519 F.3d at 236.
                                  DISCUSSION
      “The doctrine of qualified immunity shields government officials acting
within their discretionary authority from liability when their conduct does not
violate clearly established statutory or constitutional law of which a reasonable
person would have known.” Wallace v. County of Comal, 400 F.3d 284, 289 (5th
Cir. 2005).   Qualified immunity protects public officials “not simply from
liability, but also from standing trial.” Johnson v. Jones, 515 U.S. 304, 312
(1995) In other words, qualified immunity “means immunity from suit, not
simply immunity from liability.” Foster v. City of Lake Jackson, 28 F.3d 425, 428
(5th Cir. 1994) (internal quotation omitted). To that end, “[w]hen a public
official pleads the affirmative defense of qualified immunity in his answer, the
district court may . . . require the plaintiff to reply to that defense in detail. By
definition, the reply must be tailored to the assertion of qualified immunity and
fairly engage its allegations.” Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.
1995). The defense of qualified immunity involves a two step evaluation: “[t]he
first step is to determine whether plaintiff alleged a violation of a clearly
established constitutional right” and “[t]he second step requires determining
whether . . . the official’s conduct was objectively reasonable under clearly
established law existing at the time of the incident.” Bazan v. Hidalgo County,

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246 F.3d 481, 490 (5th Cir. 2001) (emphasis in original). The plaintiff bears the
burden of negating the defense of qualified immunity. Foster, 28 F.3d. at 428.
Where a plaintiff fails to carry this burden, the district court may dismiss the
suit. See Schultea, 47 F.3d at 1434.
      Appellants argue that the district court erred in its determination that the
their allegations lacked sufficient specificity to overcome Ontriveros’s qualified
immunity defense because they have in fact provided sufficient detail to survive
Ontriveros’s motion to dismiss. Further, Appellants assert that the suit was
dismissed prematurely because, had they been afforded discovery, they would
have been able to provide the specificity lacking to overcome the qualified
immunity defense.
      Appellants’ arguments fail. A review of the briefs and the record both
before the district court and this court reveals that Appellants have produced
only conclusory allegations. They assert that Ontriveros violated their First,
Fourth, and Fifth Amendment rights but bring forth no specific factual
allegations to support these claims. Their state-law claims are likewise flawed.
      With respect to their First Amendment rights, Appellants assert that they
were maliciously investigated and prosecuted in retaliation for speaking out
against certain DHA practices and filing suit against various governmental
entities, and that Ontriveros withheld information from the grand jury.
Appellants fail to set forth sufficient facts to support any of these allegations.
They provide no facts to indicate the content of the speech or whether Ontriveros
was even aware of the protected activity. Furthermore, by their own assertions,
the investigation commenced before any of the protected speech occurred. The
claim that Appellants were retaliated against for filing suit against Ontriveros
and others also fails. The investigation and ensuing arrests took place well
before the suit filed by Appellants and by Appellants’ own admissions, the
investigation commenced in response to a complaint from a home owner, not due

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to any protected activity. Appellants’ claim that Ontriveros withheld evidence
from the grand jury is also unsupported by any factual assertions. The sole
evidence of this alleged malicious behavior is the eventual dismissal of the cases
against each of the Appellants. The Supreme Court has long held that “[t]he
Constitution does not guarantee that only the guilty will be arrested. If it did,
§ 1983 would provide a cause of action for every defendant acquitted—indeed,
for every suspect released.”        Baker v. McCollan, 443 U.S. 137, 145 (1979).
Furthermore, Appellants were arrested on the basis of a valid warrant and
“[s]uch an arrest is not unconstitutional, and a complaint based on such an
arrest is subject to dismissal for failure to state a claim.” Thomas v. Sams, 734
F.2d 185, 191 (5th Cir. 1984). Therefore, the district court’s dismissal was
proper.
       The Fourth and Fifth Amendment claims—asserting false arrest and
malicious prosecution—are likewise meritless for failure to set forth sufficient
evidence to defeat qualified immunity. Where based on a valid warrant, “the
arrest is simply not a false arrest” and cannot form the basis of a constitutional
violation.   Id.   The only evidence of the alleged malicious prosecution that
Appellants point to is that they were investigated. As previously noted, the
investigation commenced based on a home owner’s complaint. Appellants offer
nothing more to support this claim than assertions characterizing the
investigation as “without any basis and . . . false.” Here again, the district court
did not err in dismissing the complaint.1
       Appellants’ state-law causes of action re-package their constitutional
claims, providing no additional factual support. Accordingly, these additional


       1
         For the first time on appeal, Appellants claim that the district court should have
evaluated their constitutional claims under the Texas Constitution, asserting that the state
Constitution provides wider protections. These arguments are waived because they are
“raised for the first time on appeal and may not be considered.” Butler v. Cain, 533 F.3d 314,
320 (5th Cir. 2008).

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claims likewise fail to defeat Ontriveros’s claim of qualified immunity and were
properly dismissed.
      With respect to Appellants’ argument that the suit was prematurely
dismissed, this court has long held that “avoidance of disruptive discovery is one
of the very purposes for the official immunity doctrine, and it is no answer to say
that the plaintiff has not yet had the opportunity to engage in discovery. The
substantive defense of immunity controls.” Schultea, 47 F.3d at 1432. This last
argument is also inadequate to withstand dismissal.
                                CONCLUSION
      The judgment of the district court is AFFIRMED.




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