                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS          February 9, 2000
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 99-10104
                           Summary Calendar


                          KENNETH PAUL JONES,

                            Plaintiff-Counter Defendant-Appellee,

                                VERSUS

               THE CITY OF GRAND PRAIRIE, TEXAS, ET AL.,

                                                  Defendants,

                       DENNIS MEYER, Detective,

                            Defendant-Counter Claimant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 3:97-CV-1907-H
                         --------------------
                           February 9, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kenneth Paul Jones filed suit in the district court, naming as

defendants the City of Grand Prairie, Texas, and three of its

officers.   Jones alleged, among other things, that the individual

defendants falsely arrested and maliciously prosecuted him.              He

also brought similar state-law claims against the defendants.            On

motions for summary judgment, the district court dismissed all




     *
        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that this opinion should not be published and is not precedent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. 99-10104
                                   -2-

claims against the City and two of the officers.          It only partially



granted summary judgment to the remaining officer, Detective Dennis

Meyer.     The court held that Meyer was not entitled to qualified

immunity on Jones’s federal claims for false arrest and malicious

prosecution. It also rejected Meyer’s arguments that he was immune

under Texas law on Jones’s similar state-law claims.          According to

the district court, Meyer’s failure to include exculpatory evidence

in an affidavit prepared for the second of two probable-cause

hearings and his failure to call the evidence to the attention of

prosecutors would violate clearly established constitutional law if

Jones could demonstrate--as he alleged--that Meyer’s omissions were

intentional or reckless.

     In an appeal from the denial of summary judgment, we review

the record de novo.       Nerren v. Livingston Police Dep’t, 86 F.3d

469, 472 (5th Cir. 1996).         Although there is not ordinarily

appellate jurisdiction to review immediately the denial of a motion

for summary judgment, there is an exception when the motion was

predicated on qualified immunity.           Mitchell v. Forsyth, 472 U.S.

511, 525, 530 (1985). The district court’s denial is reviewable to

the extent it turned on issues of law, not fact.               Id. at 528.

Although    we   lack   jurisdiction   to    review   a   district   court’s

determination that there exist genuine issues of fact, we do have

jurisdiction to review a determination that the issues of fact are

material. Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.), cert.

denied, 119 S. Ct. 618 (1998).     We conduct a de novo review of the
                              No. 99-10104
                                   -3-

district court’s conclusions about materiality.           Lemoine v. New

Horizons Ranch and Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).

     Jones argues that we lack jurisdiction over Meyer’s appeal

because Meyer concedes the existence of a Fourth Amendment right to

be free from false arrest.       Jones apparently is arguing that the

only remaining questions are factual, whether he can prove the

facts of a Fourth Amendment violation.       In a case involving quite

similar facts and claims, however, we held that we had jurisdiction

to determine whether “contrary to the district court’s judgment,

enough uncontested facts exist to determine that [the defendants]

are immune as a matter of law.”     Hart v. O’Brien, 127 F.3d 424, 436

(5th Cir. 1997).    To that extent, then, we have jurisdiction over

Meyer’s appeal.

     Meyer argues that the district court erred in overruling his

objections   to   three   affidavits   submitted   by   Jones.   We   have

jurisdiction to consider the district court’s evidentiary rulings

on relevant summary-judgment evidence, but we review only for

manifest error.    Id. at 437.    Meyer’s principal objection is that

the three affiants expressed opinions about whether there was

probable cause for Jones’s arrest.      So long as an affiant ties her

opinion to relevant facts, there is no manifest error in a district

court’s consideration of an opinion whether probable cause existed.

See Hayter, 154 F.3d at 274.     We have reviewed the affidavits, and

we perceive no manifest error in the district court’s consideration

of them.1

     1
       Meyer also argues that the district court should have
stricken (i) certain affidavits and declarations attached to the
affidavit of one of the affiants, Peter Scharf, and (ii) any
                                    No. 99-10104
                                         -4-

       Meyer argues that the district court should have held that he

had qualified immunity from Jones’s federal claims.                         Whether a

public official is qualifiedly immune depends on two inquiries.

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223 (5th Cir.),

cert. denied, 1999 WL 812948 (U.S. Nov. 29, 1999) (No. 99-588).

First, a      defendant   is    entitled      to   qualified       immunity     when a

plaintiff     has   failed     to    allege    the   violation        of   a    clearly

established constitutional right.                  Id.         Second, a defense of

qualified immunity will succeed if the defendant’s conduct was

objectively reasonable at the time in light of clearly established

law.    Id.

       We turn first to Meyer’s argument that he was qualifiedly

immune from Jones’s false-arrest claim.                  Meyer concedes that there

is a clearly established constitutional right to be free from

arrest without probable cause.           See, e.g., Sanders v. English, 950

F.2d 1152, 1159 (5th Cir. 1992).              However, he asserts that there

was probable cause for Jones’s arrest and that his conduct was, at

all    times,   objectively         reasonable.          His    failure    to   provide

exculpatory evidence to the magistrate was, he says, at most

negligence.

       A false-arrest claim is not viable if the law-enforcement

officer has probable cause.           Sanders, 950 F.2d at 1159.            “Probable

cause is defined in terms of facts and circumstances sufficient to



mention of another of Meyer’s cases in the affidavit submitted by
Danny LaRue. The district court did not refer to any of this
information in its order, and we conclude that the court did not
rely on this information. Accordingly, we need not consider
whether there was any error in the court’s failure to strike the
evidence. Hart, 127 F.3d at 437.
                                 No. 99-10104
                                      -5-

warrant a prudent man in believing that the suspect had committed

or was committing an offense.”           United States v. Webster, 162 F.3d

308, 331 (5th Cir. 1998) (citations, internal quotations, and

brackets omitted), cert. denied, 120 S. Ct. 83 (1999).              To prevail

on   a    false-arrest      claim,   a   plaintiff   “must     tender   evidence

establishing misconduct that exceeds mere negligence.”                  Sanders,

950 F.2d at 1159.        Normally, a neutral magistrate’s determination

that probable cause existed will insulate a police officer from a

claim of false arrest.        Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir.

1994).      However, if the officer, acting intentionally or with

reckless disregard for the truth, fails to provide a magistrate

with information that was critical to a finding of probable cause,

then the officer may be held liable.            Hale v. Fish, 899 F.2d 390,

400 (5th Cir. 1990).

         Viewing the evidence in the light most favorable to Jones, as

the district court did, we hold that probable cause was vitiated by

the information that Meyer withheld.            In Meyer’s affidavit for an

arrest      warrant,   he    described    the   crime,   the    abduction    and

molestation of a four-year-old boy, in some detail. However, there

was little in the affidavit about the identity of the boy’s

attacker.      The affidavit noted that an officer had stopped Jones,

who was white and wearing a mustache, near the boy’s apartment

complex shortly after the assault and that the officer had seen

green plastic boxes in Jones’s Suburban.             The affidavit also noted

that Jones admitted having been at the complex selling candy.

Little in the affidavit, however, suggested that Jones was the

boy’s attacker.        According to the document, the child said only
                                No. 99-10104
                                     -6-

that the attacker was a man with a “gray car” and that the man had

a “lot of blue boxes in the car.”      The only identification of Jones

in the affidavit was Rick Spurrier’s; Spurrier, who was living with

the boy’s mother, had seen Jones near the complex shortly after it

was discovered that the boy was missing.

     When the boy was taken to a hospital, he told a nurse examiner

that his attacker was a “big black” man, a description that would

exclude Jones.    Although there is no dispute that Meyer learned of

this information before the second probable-cause hearing, he did

not include it in the information presented to the magistrate.          We

conclude   that    had   this   information    been   presented   to   the

magistrate, there would not have been sufficient information “to

warrant a prudent man in believing that [Jones] had committed . .

. an offense.”    Webster, 162 F.3d at 331.      At most, a “corrected”

affidavit would have suggested that Jones was in the vicinity when

Justin was attacked.      Without more, a person’s mere proximity to

the scene of a crime does not provide probable cause for the

person’s arrest.     See, e.g., United States v. Ashcroft, 607 F.2d

1167, 1171 (5th Cir. 1979).

     Meyer argues that probable cause existed because (i) Jones

admitted to being at the complex at the time of the assault; (ii)

he was seen, apparently by Spurrier, shortly after the assault;

(iii) he was driving the type of vehicle described by Spurrier and

the boy; (iv) Jones fit the description given by Spurrier and the

boy; and (v) there was evidence that Jones had candy and toys in
                             No. 99-10104
                                  -7-

his vehicle2.     The first two of these merely place Jones in the

vicinity, something that is insufficient to undergird a finding of

probable cause.    Ashcroft, 607 F.2d at 1171.    Likewise, that Jones

and his car fit the description given by Spurrier is meaningless,

since Spurrier did not witness the attack.

     Meyer’s remaining arguments are unsupported by the record or

involve disputed issues of fact.      Nowhere in the affidavit does it

suggest   that   Justin   described   his   attacker,   except   for   his

statement that the man was wearing a black shirt and blue pants.

The affidavit itself noted that Jones was wearing a blue shirt and

black shorts when Hubbard stopped him. According to the affidavit,

Justin described his attacker as having a “gray car”; it was

Spurrier who reported seeing a gray Suburban.      Although Justin saw

blue boxes in his attacker’s car, Jones’s Suburban was found to

contain green boxes.       This one similarity is insufficient to

support an inference that Jones was Justin’s attacker.           Finally,

Meyer argues that candy and toys were seen by an officer in Jones’s

Suburban.   The officer’s affidavit, however, suggests only that

boxes of candy were in Jones’s Suburban.        Nowhere does it state

that Hubbard saw toys in the car, and Jones has disputed that fact.

Despite Meyer’s arguments, the omitted information was critical to

a finding of probable cause.

     Meyer also argues that his conduct was objectively reasonable.

He stresses that he could reasonably have concluded that Jones was

the attacker, especially by the time of the second probable-cause


     2
       Spurrier testified that the boy said he had been lured by
his attacker with candy and toys.
                              No. 99-10104
                                   -8-

hearing.     As noted above, however, little information in the

affidavit tied Justin and Jones together. Given this, a reasonable

police officer who knew, as Meyer did, that Justin had described

his attacker as a black man would not have believed that there was

probable cause to arrest Jones.        More important, as the Ninth

Circuit has held, it can be “only objectively unreasonable for a

law enforcement officer deliberately or recklessly to make material

omissions” in an affidavit for a warrant.          Lombardi v. City of El

Cajon, 117 F.3d 1117, 1127 (9th Cir. 1997) (emphasis added).              See

also id. at 1126 (holding that the test is whether the officer

reasonably   withheld   the   information,   not      whether   the   officer

reasonably believed there was probable cause notwithstanding his

material omissions).

     Meyer contends that there is no evidence that his omission was

anything more than mere negligence.        It is true that Jones must

show that Meyer’s omission occurred not from negligence, but

intentionally or with reckless disregard for the truth.               Sanders,

950 F.2d at 1159; Hale, 899 F.2d at 400.           In Hale, however, the

court    concluded   that   recklessness   may   be    inferred   when    the

officer’s omission was “clearly critical” to a finding of probable

cause.     899 F.2d at 400.      In this case, too, we hold that a

reasonable jury could find that the omitted evidence was “clearly

critical.”   See Hindman v. City of Paris, Tex., 746 F.2d 1063, 1067

(5th Cir. 1984) (“[t]he issue of [an officer’s] truthfulness and

intent at the time [he] applied for the warrant is one of fact”).

     Jones has alleged the violation of a clearly established

constitutional right, the right to be free from arrest without
                                No. 99-10104
                                     -9-

probable cause.     When supplemented with the information that Meyer

withheld, Meyer’s affidavit did not provide probable cause for

Jones’s arrest. Meyer’s omission of “clearly critical” information

from his affidavit was objectively unreasonable and, at the same

time, an indication--at a minimum--of the recklessness necessary to

find liability for false arrest.         We hold that the district court

did not err in denying summary judgment on the basis of qualified

immunity on this claim.

     Meyer also argues that he was entitled to qualified immunity

as to Jones’s claim of malicious prosecution.         To maintain such an

action, a plaintiff must show that (1) a criminal action was

commenced against the plaintiff, (2) the prosecution was caused by

the defendant or through the defendant’s aid or cooperation, (3)

the action terminated in plaintiff’s favor, (4) the plaintiff was

innocent,    (5)   the    prosecution   lacked   probable   cause   for   the

proceeding, (6) the defendant acted with malice, and (7) the

criminal prosecution damaged the plaintiff.           Kerr v. Lyford, 171

F.3d 330, 340 (5th Cir. 1999).          As in the case of a false-arrest

claim, a plaintiff must show more than mere negligence on the part

of the defendant.        Sanders, 950 F.2d at 1159.

     Although Meyer concedes that this court has recognized a

Fourth Amendment right to be free from malicious prosecution, he

argues that the Amendment does not really authorize any such cause

of action.    Absent reconsideration of this by the en banc court,

however, Jones’s malicious-prosecution claim is viable.             See FDIC

v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998) (“[w]e are, of

course, a strict stare decisis court”).
                                     No. 99-10104
                                         -10-

       Meyer    argues      that    Jones       failed    to    make    out    a     claim    of

malicious prosecution because he did not show a lack of probable

cause. For the reasons previously discussed, however, we disagree:

Once       Meyer’s    affidavit      is     supplemented             with    the     withheld

information, probable cause is absent.                        Meyer argues that Jones

failed to point to any evidence of deliberate misconduct.                                   This

argument has no relevance; the requisite recklessness reasonably

could be inferred from the officer’s omission.                         See Hale, 899 F.2d

at 400; Hart, 127 F.3d at 442.              Meyer argues that Jones has pointed

to    no    evidence    suggesting        that     he    is     innocent      or     that    the

prosecution       was    terminated        in    his     favor.        To     satisfy       this

requirement, it is not necessary that the defendant have gone to

trial and won an acquittal.               See, e.g., Sanders, 950 F.2d at 1164.

The    relevant      test   is     that    the    outcome       be    such    that     a    jury

reasonably could infer a lack of guilt.                        Evans v. Ball, 168 F.3d

856, 859 (5th Cir. 1999).            A reasonable jury could find that Jones

was innocent. Accordingly, we hold that the district court did not

err in denying summary judgment based on qualified immunity on this

claim.

       Meyer argues that Jones’s state-law claims of false arrest and

malicious prosecution are barred by Texas’s doctrine of qualified

immunity.         Without     elucidation,          Jones       argues       that    we     lack

jurisdiction to consider this argument in an interlocutory appeal

of the denial of qualified immunity under federal law.                              Indeed, in

Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996) (citing Swint v.

Chambers County Comm’n, 514 U.S. 35 (1995)), we noted that the

“Supreme Court has been reluctant to endorse the exercise of
                               No. 99-10104
                                   -11-

pendant [sic] appellate jurisdiction over rulings that, while being

related to the denial of qualified immunity, are not themselves

independently appealable prior to judgment.”           The exercise of this

pendent appellate jurisdiction is proper only when an issue is

“inextricably     intertwined”   with   an    appealable    issue    or   when

appellate consideration is “necessary to ensure meaningful review”

of an appealable issue.        Cantu, 77 F.3d at 805.        In Cantu, the

court declined to consider the defendants’ non-qualified-immunity

grounds.    Id.   However, in Cantu and other cases, see, e.g., Morin

v. Caire, 77 F.3d 116, 119-20 (5th Cir. 1996), we have reviewed

state-law questions of qualified immunity because they involved the

same considerations involved in reviewing a questions of federal

qualified immunity.     We do so here as well.

      Under Texas law, government officials are immune from claims

arising out of (i) their discretionary duties (ii) when performed

in good faith (iii) in the scope of their authority.                Cantu, 77

F.3d at 808.      “An official acts in ‘good faith’ if any reasonably

prudent officer could have believed that the conduct was consistent

with the plaintiff’s rights.”       Id.      This test “focuses solely on

the objective legal reasonableness of the officer’s conduct.”              Id.

at 809.    See also id. at 808-09 (noting that unlike the federal law

on qualified immunity, Texas does not concern itself with whether

a plaintiff alleged a clearly established constitutional right).

As   we   suggested    when   addressing     Jones’s   federal   claims,     a

reasonably prudent officer would not have believed that failing to

forward the exculpatory evidence from the nurse examiner’s notes

was “consistent with [Jones’s] rights.”            Id. at 808.       This is
                                    No. 99-10104
                                        -12-

certainly true when the exculpatory evidence would, as here, have

vitiated the probable cause established in the officer’s affidavit

for arrest.        See Lang v. City of Nacogdoches, 942 S.W.2d 752, 764

(Tex. App. 1997, writ denied) (“[i]n false arrest cases, the

question of good faith turns on whether the officer had probable

cause to make the arrest”).           The district court did not err in its

denial of summary judgment based on state-law qualified immunity.

     Finally, Meyer argues that the district court erred in failing

to dismiss Jones’s state-law claims pursuant to TEX. CIV. PRAC. & REM.

§ 101.106, a section of the Texas Tort Claims Act that provides

immunity in some situations to the employees of a governmental

unit.    As we just noted, however, we do not have appellate

jurisdiction to consider every ruling of the district court that

may be related somewhat to its denial of qualified immunity.                      See

Cantu,   77   F.3d     at    805.      The    exercise     of   pendent    appellate

jurisdiction is appropriate only when a claim is “inextricably

intertwined”       with     the    denial    of     qualified   immunity    or   when

resolution of the issue is “necessary” to resolve the question of

qualified immunity. Id. Neither condition is satisfied here. The

question whether TEX. CIV. PRAC. & REM. § 101.106 bars Jones’s state-

law claims against Meyer involves considerations wholly unrelated

to qualified immunity.            See generally Thomas v. Oldham, 895 S.W.2d

352 (Tex. 1995).            Furthermore, resolution of the issue is not

necessary     to    decide    whether       Meyer    was   entitled   to   qualified

immunity under federal law.            Accordingly, we dismiss this part of

Meyer’s appeal for want of jurisdiction.
                               No. 99-10104
                                   -13-

     In sum, we find no manifest error in the district court’s

evidentiary ruling.      On the question of qualified immunity under

federal law, we hold that the district court did not err in denying

Meyer’s motion for summary judgment as to Jones’s false-arrest and

malicious-prosecution claims.        As to Meyer’s claims of state-law

immunity, we have jurisdiction only to consider the applicability

of Texas’s doctrine of qualified immunity.           On that matter, the

district   court   did   not   err   in   holding   that   Meyer   was   not

qualifiedly immune under state law.

     AFFIRMED IN PART and DISMISSED IN PART.
