                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                         Revised May 27, 2003
                                                                     May 12, 2003

                  UNITED STATES COURT OF APPEALS                Charles R. Fulbruge III
                       For the Fifth Circuit                            Clerk



                             No. 02-40686


   BOBBY EVETT; CHRISTINA GEE; ANGELA GEE, Individually and in
                 behalf of BRANDON GEE, a Minor,

                                                   Plaintiffs-Appellees,


                                VERSUS


                            DETNTFF, ET AL,
                                                                 Defendants


     KENT GRAHAM, Nacogdoches County Sheriff; RAM MENDIOLA,

                                                  Defendants-Appellants.




          Appeal from the United States District Court
                for the Eastern District of Texas


Before DeMOSS and STEWART, Circuit Judges, and LITTLE, District
Judge.1
DeMOSS, Circuit Judge:

     Plaintiff-Appellee Bobby Evett ("Evett") filed a civil rights

action pursuant   to   42   U.S.C.   §   1983   against   law   enforcement


     1
      The Honorable F. A. Little, Jr., District Judge for the
Western District of Louisiana, sitting by designation.

                                     1
officers Kent Graham ("Graham") and Ramiro Mendiola ("Mendiola")

for unlawful arrest. Graham and Mendiola filed motions for summary

judgment based upon qualified immunity, which the district court

denied as a matter of law.   We affirm in part and reverse in part.

               I.   BACKGROUND & PROCEDURAL HISTORY

     In August 2000, members of the Deep East Texas Regional

Narcotics Trafficking Task Force ("Task Force"), a state and local

funded task force comprised of officers of several law enforcement

agencies, obtained and executed a search and arrest warrant at the

home of Angela and Richard Gee, Sr. ("Gee premises").   As a result

of the search, a large number of weapons and methamphetamine

materials were found.   Richard Gee, Sr. ("Gee, Sr."), and his son

Richard Gee, Jr. ("Gee, Jr."), were arrested for possession of a

controlled substance.

     On January 25, 2001, more than 20 members of the Task Force

executed a second search and arrest warrant for the Gee premises

based on probable cause to believe that the Gees were continuing to

manufacture and sell methamphetamine. Among the officers executing

the warrant were Sergeant Graham and Lieutenant Mendiola, both from

the Nacogdoches County Sheriff's Department.   Graham and Mendiola

were Task Force supervisors.    Mendiola was the senior supervisor

during the execution of this warrant.    At the time of the raid,

there were 14 non-law enforcement persons present at the Gee

premises.   Among those present were Gee, Sr. and his wife Angela



                                 2
Gee; his son, Gee, Jr. and his girlfriend Tonya Jones, and their

daughter Chelsea Gee; his son Brandon Gee; his daughter Christina

Gee and her common law husband, Evett, and child Calley Evett; and

a family friend, Angela Griffin ("Griffin").

      Upon arriving at the Gee premises, members of the Task Force

busted down the door with a battering ram, yelled at the occupants

of the house to get down and kept their weapons aimed at the

occupants until the premises was secured.                 Outside of the house,

officers detained Evett and Brandon Gee at gun point as other

officers secured the garage area.             The raid lasted more than one

hour and resulted in the arrest of Gee, Sr., Gee, Jr., Evett, and

Griffin.    There was no warrant for Evett's arrest, and ultimately

no charges were filed against him.

      Evett filed a civil rights complaint pursuant to 42 U.S.C. §

1983 against Graham and Mediola, among others, for unlawful arrest.

In    his   complaint,     Evett    alleged        that   he   and     others     were

"terrorized" by law enforcement officers, among whom were Graham

and   Mendiola,   who      were    conducting      a   raid    on    the     premises.

According to Evett, Mendiola was "the officer in charge" and was

responsible    for   the    supervision       of    all   of   the    officers       who

participated in the raid.            Evett asserted that Graham made the

decision to arrest him for possession of a controlled substance

with Mendiola's      approval.        Evett    alleged     that      there    were    no

outstanding warrants for his arrest and that Graham and Mendiola

did not have probable cause to arrest him.

                                        3
       Graham    and    Mendiola      pleaded    qualified     immunity    as    an

affirmative defense in their answer to Evett's complaint.                       The

district court ordered limited discovery on the facts relevant to

the affirmative defense of qualified immunity.                     Subsequently,

Graham and Mendiola filed a motion for summary judgment based upon

qualified immunity.

       In reviewing the evidence submitted by both parties on the

issue of whether Graham had probable cause to arrest Evett, the

district   court       noted   that   Graham    submitted     an   affidavit    and

deposition testimony that drug residue and paraphernalia were

located on the seat of Griffin's truck and that Graham received

information that Evett had ridden in the truck with Griffin.                    The

district court further noted that based on this information and the

fact    that    both    Griffin    and   Evett    were   at    a   "high-traffic

clandestine methamphetamine lab," Graham testified that he believed

that Evett was aware of the contraband in the truck and made the

decision to arrest him.

       According   to    the   district      court,   however,     Evett   adduced

evidence that he was told he would not be arrested unless there

existed an outstanding warrant for his arrest.                 In addition, the

court noted that Evett pointed to the testimony of Christina Gee to

suggest that his arrest was not based on probable cause, but rather

to "provide the proverbial slap in his father-in-law's face."

According to the district court, "[r]ather than investigate and

verify the accusation, Sergeant Graham made remarks in the house to

                                         4
the effect of 'How is Daddy going to feel now?               We're taking the

daughter's husband.'"        Further, the district court noted that the

evidence showed that Graham arrested Evett after acting upon

information he received "from an unsubstantiated source" who said

Evett had ridden with Griffin in her truck where the contraband was

found.    However, according to the district court, the evidence

indicated Evett told officers at the scene that he had never ridden

in Griffin's truck.

       The district court found that Evett's version of events was

supported by the deposition testimony of officer Barry Vance

("Vance"), another law enforcement officer who participated in the

raid.    Vance, who is a member of the Lufkin Police Department,

testified that he had searched Griffin's truck and questioned her,

and that she told him she had come to the Gee premises by herself.

Vance testified that he believed Griffin was being truthful with

him.     Vance also testified that he found methamphetamine and a

hypodermic    needle   on    the   seat     of   Griffin's   truck,   but    the

hypodermic   needle    was    in   a   closed    opaque   plastic   makeup   bag

belonging to Griffin.         The district court found that Vance had

"conveyed this information to Sergeant Graham." The district court

further noted that Graham stated in his deposition that Evett was

released from jail the day after his arrest "for lack of probable

cause because of the makeup bag," but that he could not remember

whether Vance even talked to him about Griffin, or whether he knew

about the makeup bag, before Evett's arrest.

                                        5
      Based on the evidence, the district court concluded:

      Viewing the facts in a light most favorable to Plaintiff
      and assuming arguendo that Sergeant Graham lacked
      probable cause to arrest Plaintiff Evett, the Court
      finds, for purposes of this motion, that Sergeant Graham
      indeed violated Evett's constitutional right. The law
      could not be more clear that an individual has a clearly
      established right to be free from unlawful arrest.
      Therefore, the question remaining in this analysis is
      whether Defendant's conduct was objectively reasonable
      for qualified immunity purposes. The Court presumes that
      defendants' facts are objectively reasonable unless all
      reasonable officials in the defendants' circumstances
      would have then known that the defendants' conduct
      violated [Plaintiff Evett's] constitutional right.

The district court found that Graham's actions were not objectively

reasonable.    The court noted that "other reasonable officials in

Sergeant Graham's circumstances believed, at the time of the

arrest, that he lacked probable cause to make an arrest."                 The

court examined the parameters of probable cause, defining it as

having "reasonably trustworthy information that would cause a

prudent person to believe that the suspect had committed or was

committing a crime."     The court pointed out that Graham had based

his   belief   that   Evett   knew   about   the   drug   paraphernalia    in

Griffin's truck on information received from an officer whose

identity he could not remember, and that Graham admitted that he

did not know "[w]hether I could prove it in a court of law," but

had a "feeling" that Evett knew about the contraband. The district

court determined that Graham should have investigated further

Evett's connection with the items in Griffin's truck, finding that

if Graham had done so, he would have learned from Vance, who had


                                      6
questioned Griffin and searched her truck, that: (1) Griffin denied

that Evett had been in her truck; (2) Vance believed that Griffin

was telling the truth; and (3) the hypodermic needle was inside a

closed makeup bag in Griffin's truck.

     Furthermore, the district court found that Graham was not

forced to make a "split-second decision" to arrest Evett.               The

court noted that the raid "lasted over an hour," giving Graham

"plenty of time" to investigate further before making the arrest.

The district court concluded that Graham lacked probable cause to

arrest Evett and deemed Graham's failure to further investigate the

facts related to Evett's connection with the controlled substance

in Griffin's car to be objectively unreasonable. Consequently, the

district court held that Graham was not entitled to the defense of

qualified immunity as a matter of law on Evett's claim of unlawful

arrest.

     The    district   court   then   examined   Evett's   claims   against

Mendiola in his capacity as Graham's supervisor.             The district

court concluded that Evett had "little difficulty in establishing

the existence of the causal connection between Defendant Mendiola,

Sergeant Graham and the alleged unlawful arrest of Plaintiff

Evett." The district court found that Evett had adduced sufficient

evidence to support the following allegations with regard to

Mendiola:    (1) Mendiola was the highest-ranking officer at the

scene of the raid, and the decisions made at the scene "were

ultimately approved by him"; (2) Graham told Mendiola about his

                                      7
decision to arrest Evett; and (3) Mendiola approved the decision to

arrest Evett, based on the information that he received from

Graham.

     Having found that Evett established the causal connection from

his arrest by Graham to Mendiola, the district court reasoned that

"[t]he question then becomes did Defendant Mendiola, by action or

inaction, act with deliberate indifference regarding the violation

of Evett's constitutional rights."    The district court answered

that question in the affirmative, finding that Evett had presented

evidence that Mendiola, "by acting as overall supervisor at the

scene, personally took part in the events leading up to the arrest

of Evett."   The court further found that "the record is devoid of

evidence" that Mendiola questioned other officers at the scene who

had searched the truck or talked to Griffin.   Rather, the district

court noted, Mendiola admitted in his deposition that he approved

Evett's arrest based only upon the information that he received

from Graham.   The district court, therefore, concluded:

     Qualified immunity is only available to Lieutenant
     Mendiola if all reasonable officers in his position would
     not have realized that the actions taken by Defendant
     Graham violated Evett's constitutional rights.        The
     summary judgment evidence shows that other officers
     possessed information that called into question the
     actions of Sergeant Graham. The Court finds Lieutenant
     Mendiola's actions, and inaction under the circumstances
     presented, to be deliberately indifferent to the rights
     of Evett and objectively unreasonable so as to deny him
     the protection of qualified immunity.

     Consequently, the district court denied summary judgment to

Graham and Mendiola on Evett's unlawful arrest claim, concluding

                                 8
that they were not entitled to the defense of qualified immunity as

a matter of law.      Graham and Mendiola filed a timely notice of

interlocutory appeal.

                             II.   DISCUSSION

      Before we can consider the issues of whether Graham and

Mendiola are entitled to qualified immunity, we must determine

whether this Court has jurisdiction over this interlocutory appeal.

The district court's order denied Graham's and Mendiola's motions

for summary judgment based on qualified immunity "as a matter of

law."   A denial of a motion for summary judgment on the basis of

qualified immunity is subject to interlocutory appeal if the denial

is based upon a question of law.         Kinney v. Weaver, 301 F.3d 253,

262   (5th   Cir.   2002).    This    Court,    however,   does   not   have

jurisdiction to review the district court's determination that

sufficient evidence existed to create a question of fact with

respect to a material issue.         Lemoine v. New Horizons Ranch and

Center, Inc., 174 F.3d 629, 633-34 (5th Cir. 1999).         Nevertheless,

the district court's determination that it cannot grant summary

judgment because genuine issues of fact exist does not necessarily

deprive this Court of jurisdiction.        Colston v. Barnhart, 146 F.3d

282, 284 (5th Cir. 1998).          This Court may review the district

court's conclusion that those disputed issues are material to the

issue of qualified immunity.       Lemoine, 174 F.3d at 634.      This Court

does not apply the standards of Rule 56(c) of the Federal Rules of


                                     9
Civil Procedure in this review, "because we do not determine

whether the record establishes genuine factual issues."                Kinney,

301 F.3d at 262. "[O]ur review of the district court's conclusions

as to the materiality of the identified fact issues, a legal

determination, is de novo."      Lemoine, 174 F.3d at 634.

     Evett alleges that the officers arrested him without a warrant

and without probable cause. Graham and Mendiola do not dispute the

district court's factual findings, but, rather, they challenged the

materiality of those findings to the district court's ruling that

they are not entitled to qualified immunity as a matter of law.

They argue that, based on the facts actually known to Graham, and

conveyed to Mendiola by Graham, both officers had probable cause to

arrest Evett, and both officers acted in an objectively reasonable

manner in deciding to arrest Evett. Graham and Mendiola also argue

that the district court should not have based its ruling on the

facts known to other officers present at the raid, but not actually

known to Graham and Mendiola at the time of the arrest.            They take

issue with the district court's failure to consider that the scene

of the raid was chaotic, but do not dispute the district court's

finding   that   the   raid   lasted    over   an   hour,   or   the   court's

conclusion that Graham had time to investigate the facts further.

     We find that a review of the existence of probable cause to

arrest Evett, and the objective reasonableness of the actions and

inactions of Graham and Mendiola in making that arrest, does not


                                       10
necessitate a determination of disputed factual issues in this

case.       This Court, therefore, has jurisdiction to review the

district court's denial of summary judgment.                  Specifically, this

Court has jurisdiction to determine the materiality of the facts on

which the district court based its determination that Graham lacked

probable cause, given the facts actually known to Graham at the

moment of the arrest.         This Court also has jurisdiction to review

the district court's finding that both Graham and Mendiola had a

duty to investigate the facts more fully prior to Evett's arrest,

as a matter of law.        This Court, furthermore, may review the facts

that the district court determined would have been discovered upon

further investigation, and decide whether those facts are material

to    the     determination        of     probable     cause        and    objective

reasonableness.

A. Whether Graham is entitled to qualified immunity as a matter of
law.

      Government      officials     acting        within    their    discretionary

authority are immune from civil damages if their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.                 Mendenhall v. Riser,

213   F.3d    226,   230   (5th    Cir.    2000).      This    Court      conducts   a

bifurcated analysis to assess whether a defendant is entitled to

qualified immunity.        Harper v. Harris County, Tex., 21 F.3d 597,

600   (5th    Cir.   1994).       First,    the    plaintiff    must      allege   the

violation of a clearly established right.                  Here, Evett alleges a

                                           11
violation of his Fourth Amendment guarantee against unreasonable

searches and seizures resulting from a warrantless arrest without

probable     cause,   which     implicates       the     clearly       established

constitutional right. Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th

Cir. 1994). Second, the actions of the officer must be objectively

reasonable    under   the     circumstances,      such    that     a   reasonably

competent officer would not have known his actions violated then-

existing clearly established law.          Id.   The question of whether an

official's conduct was objectively reasonable is a question of law,

to be decided by this Court. Id.

     The district court based its holding that Graham lacked

probable cause to arrest Evett and that Graham's actions were not

objectively reasonable on the findings of material fact that Graham

did not further investigate Evett's connection with the items in

Griffin's    truck.     The     district     court     determined       that   the

information that Vance possessed was material, on the grounds that

Evett was released from detention the next day, the point at which

Graham admits being certain that he was told about the makeup bag.

In addition, Evett was not charged with a crime, and Graham

admitted "with the benefit of hindsight" that he probably would not

have arrested Evett had he not been so busy at the scene of the

raid.   Finally, the district court found it significant that the

raid lasted more than one hour, giving Graham "plenty of time" to

investigate further before making the arrest.


                                     12
      "Probable cause exists when the facts and circumstances within

the arresting officer's personal knowledge, or of which he has

reasonably trustworthy information, are sufficient to occasion a

person of reasonable prudence to believe an offense has been

committed." Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)

(internal quotation marks omitted).        Probable cause is determined

on the basis of facts available to the officer at the time of the

arrest, and an officer may be shielded from liability even if he

"reasonably but mistakenly conclude[s] that probable cause is

present."   Mangieri, 29 F.3d at 1017 (internal quotation marks and

citation omitted). Furthermore, probable cause may be supported by

the   collective   knowledge   of    law   enforcement    personnel   who

communicate with each other prior to the arrest.         United States v.

Clark, 559 F.2d 420, 424 (5th Cir. 1977).      We must stress, however,

that while law enforcement personnel "may rely on the totality of

facts available to them in establishing probable cause, they also

may not disregard facts tending to dissipate probable cause."

Bigford, 834 F.2d at 1218.

      Having reviewed the record in this case, we agree with the

district court that Graham lacked probable cause to arrest Evett.

Officers acting reasonably and prudently, based on all of the

available information at the time of the arrest, would not have

arrested Evett without further investigation.        As already noted,

the district court's factual findings in this case are not disputed


                                    13
by the parties.   The court found that Graham had information from

an "unsubstantiated source," another officer participating in the

raid, who told him that Evett had ridden in Griffin's truck where

contraband was found.   This information was all Graham had to form

a "feeling" that Evett knew about, and had something to do with,

the drug paraphernalia in Griffin's truck. Viewing the evidence in

a light most favorable to Evett, we find that such a "feeling"

based on the limited information that Graham had, is not enough to

create probable cause to make an arrest.        Therefore, Evett's

constitutional rights were violated.

     We must now consider whether Graham's actions were objectively

reasonable under the circumstances.      We note that "the probable

cause standards for reasonableness differ from those for qualified

immunity."   Whren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997).   In

this part of the analysis, we are no longer concerned with the fact

that there was no probable cause for Evett's arrest.   That mistake

alone cannot open Graham to liability.    "Law enforcement officers

are only human, and these mistakes alone do not open officers to

personal liability."    Id. at 1159.   Rather, we must look to the

facts to determine whether a reasonably competent officer in

Graham's position could reasonably have thought his actions to be

consistent with the rights he is alleged to have violated.    Id.

     We agree with the district court that under the circumstances

of this case, Graham is not entitled to qualified immunity. First,

                                 14
this is not a situation in which we must be concerned with second-

guessing an officer's decision that was required to be made in a

split second. As the district court noted, both parties agree that

the raid lasted over an hour.

      Second, as already discussed, the only information that Graham

had concerning Evett was from an unidentified officer who told him

that Evett arrived at the scene with Griffin.              Graham had nothing

further to support his "feeling" that Evett knew about or had

anything   to    do   with    the    drug      paraphernalia   in    the   truck.

Nevertheless, based solely on that information, Graham arrested

Evett.

      We cannot conclude that based on such minuscule information in

an unhurried setting such as in this case, that arresting Evett was

objectively     reasonable.         As   the    district   court    stressed,   a

reasonable officer would have investigated further.                 Graham easily

could have sought out Officer Vance who had questioned Griffin and

searched her truck.     Had Graham done so, he would have learned that

Griffin told Vance that Evett had not ridden in her truck, that

Vance believed Griffin was telling the truth about Evett not having

been in the truck, and that the hypodermic needle was in a closed

opaque plastic makeup bag belonging to Griffin.                    Therefore, we

affirm the district court and hold that Graham is not entitled to

qualified immunity as a matter of law.

B.   Whether Mendiola is entitled to qualified immunity as a matter

                                         15
of law.

       The issue of whether a supervisor may be held liable under 42

U.S.C. § 1983 requires a separate analysis than that applied above.

Section 1983 does not create vicarious or respondeat superior

liability.   Monell v. New York City Dep't of Soc. Servs., 436 U.S.

658, 691 (1978); Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.

1987).     Rather,    a    plaintiff    must    show    either   the   supervisor

personally was involved in the constitutional violation or that

there is a "sufficient causal connection" between the supervisor's

conduct and the constitutional violation.               Thompkins, 828 F.2d at

304; see also Southard v. Texas Bd. of Criminal Justice, 114 F.3d

539, 550 (5th Cir. 1997) ("[T]he misconduct of the subordinate must

be    affirmatively       linked   to   the    action    or   inaction    of   the

supervisor.").       A supervisory official is held to a standard of

"deliberate indifference," which requires proof that the supervisor

"disregarded   a     known    or   obvious     consequence    of   his   action."

Southard, 114 F.3d at 551 (internal quotation marks omitted).                   A

supervisor will not be held liable for unintentional oversights.

Id.

       With regard to Evett's claim against Mendiola in his capacity

as supervisor, the district court based its denial of summary

judgment on the findings of material facts that Mendiola was the

highest-ranking officer at the raid; that Graham told Mendiola he



                                        16
was going to arrest Evett; and that Mendiola approved the arrest,

based on the information that he received from Graham.                        The

district court also found that Mendiola personally took part in the

events that led to the arrest of Evett by acting as overall

supervisor.      As   a    result,    the    district    court   concluded   that

Mendiola had acted with deliberate indifference concerning Evett's

constitutional rights because Mendiola did not question other

officers   who   were      involved    in    searching    Griffin's   truck   or

questioning her, and that those officers "possessed information

that called into question the actions of Sergeant Graham."

     We cannot agree with the district court's conclusion that

Mendiola is not entitled to qualified immunity. The district court

found that "the evidence does not show that Defendant Mendiola

personally participated in the execution of the search warrant."

The district court also found that "Graham testified that he, and

not Lieutenant Mendiola, remained the officer in charge of the raid

and made the decision to arrest Evett."             The court further found

that although Mendiola was appraised of Graham's decision to arrest

Evett, Graham's conversation with Mendiola about this decision "was

not detailed and, in fact, very brief."

     We believe that, based on the facts of this case, requiring

Mendiola, as the supervising officer at the scene of the raid, to

personally    seek        out   all   available     information       from    all

participating law enforcement officers before approving an arrest


                                        17
would not have been practicable.           As a result, we find that

Mendiola did not act with deliberate indifference by ultimately

giving his approval of Evett's arrest.        As noted above, Mendiola

cannot be held liable for unintentional oversights; particularly

when the evidence indicates Mendiola could not have consciously

believed his actions, based on the information made available to

him, would lead to a violation of Evett's constitutional rights.

We, therefore, reverse the district court and hold that Mendiola is

entitled to qualified immunity as a matter of law.

                             CONCLUSION

     Based on the foregoing, we AFFIRM the district court as to its

ruling that Graham is not entitled to qualified immunity as a

matter of law.   We, however, REVERSE the district court as to its

ruling that Mendiola was not entitled to qualified immunity as a

matter of law.     Mendiola, as a supervisor, did not act with

deliberate   indifference   to   Evett's   constitutionally   protected

rights.

AFFIRMED in part, and REVERSED in part, and REMANDED for further

proceedings consistent with this opinion.

     Judge Stewart joins in the judgment only.




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