                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                 July 21, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                            No. 03-41165




                    RICHARD SCOTT SULLIVAN, JR.,

                                                Plaintiff-Appellee,


                               VERSUS


                   COUNTY OF HUNT, TEXAS, ET AL.,
                                                        Defendants.

      PHILLIP KILLGORE, Individual and official capacity; GARY
       COLLINS, Individual and official capacity; JERRY MCRAE,
                  Individual and official capacity,

                                             Defendants-Appellants.



           Appeals from the United States District Court
                 For the Eastern District of Texas
                             5:01-CV-23



Before DAVIS, BENAVIDES and PRADO, Circuit Judges.

DAVIS, Circuit Judge.*

      Plaintiff, Sullivan, a former game warden with the Texas Parks

and Wildlife Department (TPWD) filed this suit against two of his



  *
   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opinion should not be published and is not precedent except under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.
supervisors, Gary Collins and Jerry McRae, and the Chief Deputy

Sheriff of Hunt County, Texas, Phillip Killgore, under § 1983.    He

also asserted pendent state law claims.    The suit seeks damages

arising out of an incident in which Deputy Killgore directed his

officers to take Sullivan into custody for a mental evaluation

based on Killgore’s belief that Sullivan was suicidal and a danger

to himself. The defendants moved for summary judgment based on

qualified immunity which the district court denied based on its

conclusion that questions of fact were presented.    After a careful

review of the record, we find no issues of fact presented and

reverse the district court’s order denying qualified immunity.

                              I.

     At the time of the incident in question, Sullivan had been

employed as a game warden for the TPWD for approximately four

years. Sullivan’s immediate TPWD supervisor was defendant Collins,

who in turn was under the supervision of defendant McRae.    On June

20, 2000, plaintiff found his fiancé, Rhonda Farber, dead in the

bathroom of his house where the two of them lived.    Plaintiff had

spent the night of June 19 next door, at his mother’s home.      Ms.

Farber had apparently committed suicide with plaintiff’s service

revolver.



                II. The Claims Against Killgore

                               A.

     The dispatcher for the Hunt County Sheriff’s Office notified

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the   deputies   on   duty,   including   Chief   Deputy   Killgore,        that

Sullivan’s family was concerned that he would harm himself.                 When

Killgore arrived at Sullivan’s home, several deputies were there

already.   He took charge of the deputies on the scene and, as

explained below, eventually ordered that Sullivan be taken into

custody for a mental examination.

      Based upon our review of the record we are satisfied that the

following undisputed facts demonstrate that before Killgore ordered

Sullivan detained, a reasonable officer in Chief Deputy Killgore’s

position would have had probable cause to believe that Sullivan was

a suicide risk and therefore a danger to himself:

      1.   The day before Sullivan’s seizure, Sullivan discovered

           that his fiancé, Rhonda Farber, had shot herself with

           Sullivan’s service revolver in the bathroom of Sullivan’s

           home.

      2.   Chief Deputy Killgore and other Hunt County Sheriff’s

           Office personnel investigated this suicide.                Killgore

           knew Sullivan and knew of his relationship with Ms.

           Farber and his distress over her tragic death.

      3.   The   next   day   plaintiff   and   his   father   went    to    the

           plaintiff’s house to clean the bathroom where Ms. Farber

           had committed suicide. Sullivan’s sister became concerned

           about her brother’s emotional state and dialed 911.               The

           evidence is in dispute about what Sullivan’s sister said

           to the 911 operator.     However, it is undisputed that the

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     911 operator contacted the Hunt County Sheriff’s Office

     and    advised   that    plaintiff’s    family   reported     that

     Sullivan had returned to the scene of the suicide and

     that they feared that he would harm himself. The 911

     operator relayed this information to the Hunt County

     Sheriff’s     Office    dispatcher     and   Killgore   received

     essentially this same information from the dispatcher.

     Several officers at the scene reported to Killgore that

     Sullivan’s sister and mother were telling the officers

     that they were concerned for Sullivan’s safety. Although

     Sullivan’s sister and mother deny voicing such concerns,

     it    is   undisputed   that   the   officers    reported    these

     concerns to Killgore.

4.   It    is    undisputed     that      officers    attempted     for

     approximately two hours to telephone Sullivan, who was

     accompanied by his father at the time and could not reach

     him because the telephone was off the hook or busy.

5.   Deputy     Mike Parker (a hostage negotiator on the scene)

     learned that Sullivan had seen a psychiatrist the day

     before, and he telephoned that physician to determine if

     Sullivan was taking medication that might be affecting

     his judgment. The psychiatrist could not talk to Officer

     Parker when he called but the psychiatrist returned the

     call a short time later.       The physician advised Officer

     Parker that he had been treating Scott for depression and

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           lack of sleep and expressed concern that Scott Sullivan

           could   be   suicidal.       Officer    Parker    reported   this

           information to the command headquarters where Killgore

           was located.

     The   above   uncontested   facts    are     sufficient   to   create   a

reasonable belief that plaintiff was in a precarious emotional

condition and was a suicide risk.            These facts are therefore

sufficient to justify Killgore’s action in directing his officers

to seize Sullivan and transport him to meet with a counselor and

undergo a mental examination and screening.                 These facts are

sufficient to establish probable cause to seize Sullivan under the

4th amendment.     Because the undisputed facts demonstrate that

Killgore did not violate Sullivan’s constitutional rights in taking

him into custody, Killgore is entitled to qualified immunity for

this conduct. Resendiz v. White, 203 F.3d 902 (5th Cir. 2000);

Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir. 2003).



                                    B.

     Killgore also complains of the district court’s denial of

qualified immunity to him on Sullivan’s excessive force claim in

seizing him. The analysis of this claim is also controlled by

Fourth Amendment principles. The Supreme Court stated in Graham v.

Connor, 490 U.S. 386, 395 (1985): “Today we make explicit what was

implicit in Garner’s analysis and hold that all claims that law

enforcement officers have used excessive force–deadly or not– in

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the course of an arrest, investigatory stop, or other seizure of a

free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard, rather than under a substantive due

process approach.”

     Sullivan’s claim is predicated on his evidence that the

handcuffs were too tight and that he experienced pain and had scars

and bruising.

     The summary judgment evidence is uncontested that Killgore did

not handcuff Sullivan or have any role in handcuffing Sullivan.

The evidence shows that Deputies Lance Simpson and Tommy Grandfield

handcuffed Sullivan in accordance with their usual practice and

without any direction from Killgore.      Because the uncontested

evidence reveals that Killgore did not apply the force used in

handcuffing Sullivan, Sullivan did not establish a violation of a

constitutional right and the district court erred in denying

qualified immunity to Killgore on this claim.

                                C.

     Killgore also complains of the district court’s denial of his

motion for summary judgment based on qualified immunity as to

Sullivan’s due process claim arising out of Sullivan’s two day

detention in Glen Oaks Hospital for mental examination.

     It is undisputed that after Sullivan was taken into custody,

he was transported to the sheriff’s office where he was examined by

counselor Cliff Faraby.   After his examination, counselor Faraby

executed an affidavit stating that in his opinion Sullivan should

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be committed to a mental health facility for emergency observation

and treatment because he posed a substantial risk of serious harm

to himself or others.      This affidavit supported an application for

a warrant of detention which Faraby also completed.                 Thereafter,

this application for warrant of detention was presented to Justice

of the Peace Gloria Peters.            Magistrate Peters determined that

plaintiff should be committed to a mental institution immediately

because of the risk of harm Sullivan posed to himself or others and

signed an order of detention and commitment.                Sullivan was then

transported to Glen Oaks Hospital.              At Glen Oaks, Sullivan was

again examined by a physician who determined that Sullivan should

be committed to the hospital because of the risk of harm he posed

to himself or others and he was accordingly committed.                At the time

of his commitment, Sullivan signed a form stating that he had been

given an opportunity to obtain the services of counsel.                 Sullivan

was detained at Glen Oaks hospital for two days and was released on

June 23, 2000.

     In    his   procedural     due   process    claim,    Sullivan    complains

generally    that    Killgore    did    not     strictly   follow     procedures

established by the Texas Health and Safety Code, particularly

Chapter 573 of that Code.         Specifically, Sullivan complains that

Killgore took him to the sheriff’s office rather than to a hospital

after taking him into custody as provided in the Health and Safety

Code and    also    that   Killgore    did    not   personally   complete    the

application for detention.

                                        7
     We conclude that the district court erred in concluding that

these violations of the administrative details of the state health

and safety code preclude Killgore’s qualified immunity defense. So

long as Killgore did not violate rights reserved to Sullivan under

the United States Constitution, Killgore is entitled to qualified

immunity on his federal claims. The important procedural steps

Texas requires for detention were complied with and the procedural

steps taken complied with rights guaranteed to Sullivan by the U.S.

Constitution.     See Matthews v. Eldridge, 424 U.S. 319 (1976).

Because   Sullivan    has    failed    to     demonstrate   a     denial    of   a

constitutional right, he is entitled to qualified immunity on this

claim.

                                       D.

     Killgore argues next that the district court erred in denying

him qualified immunity on Sullivan’s claim that he was denied

assistance of counsel.        Sullivan’s claim is based primarily on

Texas Health and Safety Code § 573.025(b)(1).                This subsection

requires that a detainee be informed of a right to counsel within

24 hours after they are admitted to an inpatient facility.                  Based

on the undisputed evidence, however, plaintiff was advised of his

right to counsel within 24 hours after his detention, a fact that

the district court also recognized.             Even if this obligation to

provide   counsel    under    the     state    statute    rises    to   a   U.S.

Constitutional      requirement,      the     statutory     requirement       was

satisfied.      Because Sullivan was not charged with a criminal

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offense by the state, no Sixth Amendment right to counsel attached.

See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); U.S. v. Cooper,

949 F.2d 737, 741 n. 1 (5th Cir. 1991).                   Because neither the

district court nor Sullivan point to any clearly established

constitutional right to counsel, and we know of no such right, the

district court erred in denying Killgore qualified immunity on this

claim.




                                        E.

     Finally, Killgore argues that the district court erred in

denying him qualified immunity on Sullivan’s conspiracy claim.

Sullivan    argued    that    Killgore       conspired   with    Sullivan’s   two

supervisors, Collins and McRae, to have Sullivan committed so as to

discredit him.        It is unclear whether this conspiracy claim is

asserted under § 1985(3) or under state law.                 Any claim under §

1985(3) fails as a matter of law because to prevail under that

statute, Sullivan must prove a discriminatory animus based on race

or some other inherited or immutable class characteristic such as

gender,    religion    or    national    origin    or    based   upon   political

association or beliefs.        Galloway v. State of Louisiana, 817 F.2d

1154, 1159 (5th Cir. 1987).             Sullivan has produced no summary

judgment evidence that would serve as a basis for a conspiracy

claim.

     Sullivan’s state law cause of action for conspiracy also fails

                                         9
because an essential element of a state law conspiracy claim is

that one of the co-conspirators commit an unlawful act. Therefore,

even if there is evidence of agreement between Killgore and Collins

or McRae to have Sullivan committed for a mental examination,

accomplishment    of    this   objective   was   entirely   justified,   as

explained above, so that no proof of a wrongful act was presented.

Consequently, Killgore was entitled to official immunity on this

claim also.

                 III.   Claims Against McRae & Collins

     Sullivan’s supervisors, McRae and Collins, argue that the

district court erred in denying qualified immunity to them from

Sullivan’s § 1983 and state law claims based on their alleged

conspiracy to violate plaintiff’s rights.

     The district court concluded from a number of unassociated

facts that the fact finder could infer that Collins and McRae

conspired to have Sullivan committed.            These facts include: (1)

plaintiff caught Collin’s wife rummaging through the desk of a co-

employee who was fired for stealing shortly thereafter; (2) prior

to seeing Collins’s wife, plaintiff had a spotless work record; (3)

after seeing Collins’s wife, complaints began to be filed about

plaintiff; (4) Collins told plaintiff that he could “f@#% him” if

he wanted to and that if he liked him plaintiff had nothing to

worry about; (5) Collins and McRae were at the scene of the suicide

and did not think plaintiff needed help; (6) Collins did not tell

Killgore that the day before being committed a psychiatrist told

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Collins plaintiff was not suicidal; (7) Collins and McRae attempted

to force plaintiff to confess to the killing of his fiancé; and (8)

Collins and McRae went to plaintiff’s family and requested that

they sign papers to keep plaintiff at Glen Oaks Hospital, a request

that was refused.

     Although these facts certainly indicate that the relationship

between Sullivan and his superiors was less than friendly, for

reasons stated above, we are satisfied that the evidence available

at the scene on June 21, 2000, justified the decision to take

Sullivan into custody and commit him for a mental screening.          It is

important to note that Killgore was the decision maker rather than

Collins or McRae, and no evidence was presented that either Collins

or McRae had any significant input into that decision.             The fact

that Collins did not tell Killgore that on June 20 a psychiatrist

had told Collins that plaintiff was not suicidal, even if true, was

not particularly relevant because that same psychiatrist, after

being advised of Sullivan’s conduct on June 21 reached a contrary

conclusion.    Consequently the summary judgment evidence does not

support an inference that Collins and McRae conspired to violate

Sullivan’s state or federally protected rights. The district court

therefore erred in denying immunity to these two officers.

                                CONCLUSION

     For reasons stated above, we conclude that the district court

erred   in   denying   the   motions    for   summary   judgment   filed   by

Killgore, McRae and Collins based on qualified immunity for the §

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1983 claims presented by Sullivan.    We also conclude that the

district court erred in denying these same defendant’s motions for

summary judgment on Sullivan’s state law claims based on “official

immunity”.

     Consequently, we REVERSE the district court’s order denying

the defendants’ motion for summary judgment and RENDER judgment in

favor of the defendants, Kilgore, Collins, and McRae.




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