                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                      July 7, 2005

                      ______________________               Charles R. Fulbruge III
                                                                   Clerk
                           No. 04-11021
                      ______________________

                     VICTOR ALVARADO DELEON,

                                                   Plaintiff-Appellee,

                                  v.

                     CITY OF DALLAS, ET AL.,

                                                            Defendants,

              DAVID LARSEN, Dallas Police Officer;
                      OFFICER MATA, #7313,

                                                Defendants-Appellants.



          Appeal from the United States District Court
               for the Northern District of Texas
                       No. 3:02-CV-1097-K


Before JOLLY, JONES, and DEMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

          The question in this qualified immunity appeal is whether

plaintiff DeLeon sufficiently stated a claim for violation of his

constitutional right to be free from false arrest and detention

against Officers Larsen and Mata.      Because he did not do so, either

on the merits or as to their qualified immunity defense, we reverse

the district court’s order denying the Officers’ motion to dismiss


     *
      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this opinion should not be published and is not precedent except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.
these claims.    We decline to rule, however, on the sufficiency of

DeLeon’s    pleading    of    other   claims   that    the   Appellants    have

inadequately briefed.        Consequently, the district court’s order is

reversed in part, and the appeal is dismissed in part.

                                 BACKGROUND1

            On April 19, 2001, Victor Alvarado DeLeon (“DeLeon”), a

Mexican national, traveled to a mechanic shop in Dallas, Texas,

with a male companion, also a Mexican national, to observe repairs

to a vehicle owned by DeLeon’s brother-in-law.               According to his

affidavit filed on or about that date, undercover Officer DeLaPaz

allegedly   witnessed    a    drug    transaction     between   DeLeon    and   a

confidential informant at the shop.            As DeLeon and his companion

were leaving the shop, police cars converged on the scene.               Dallas

police officers detained all of the men at the premises, forced

them to lie face-down on the ground, and searched them.            DeLeon was

interrogated and accused, along with his companion, of selling

cocaine to the confidential informant.           DeLeon had no significant

amount of money on his person, but a baggie containing a white

powder was allegedly removed from his pants pocket during the

search.

            DeLeon was arrested for selling four ounces of cocaine

for $2,500 to the confidential informant.              Thereafter, Officers

David Larsen (“Larsen”) and Michael Mata (“Mata”) field tested the

     1
      We take as true the facts alleged by DeLeon’s Complaint,
see R. at 86-100.

                                        2
white powder substance, which, they reported, weighed 131.8 grams

and tested positive for cocaine.         The baggie was checked into a

police lockbox, tagged, and re-weighed at 158.7 grams, 26.9 grams

more than the amount earlier recorded.

            DeLeon was released on a writ of habeas corpus three days

later, was delivered to the Immigration and Naturalization Service,

and   was   summarily    expelled   to   Mexico.   Because   of   family

obligations in the United States, DeLeon reentered the country. On

or about June 11, 2001, he was stopped while driving to a gas

station in Texas and      arrested on a warrant related to his April

19, 2001, arrest.

            During the stop, one of the arresting officers indicated

that DeLeon’s April 19 drug sale to the confidential informant had

been videotaped.     However, the state could not later locate and

produce the tape upon request.      At the further request of DeLeon’s

counsel, the baggie containing the white powder substance was

re-tested for content and fingerprints.       Lab tests, made available

to DeLeon and his counsel in August, concluded that DeLeon’s

fingerprints were not on the baggie; that the substance remaining

in the package was “not subject to quantitation [sic];” and that it

weighed 126 grams.      The lab report also described the baggie as a

“green plastic wrapper,” while the arrest affidavit had referred to

a “clear baggie.”    DeLeon remained in detention until a trial date

of September 10, 2001.     Only then, when the confidential informant

failed to appear, were the charges dropped, and he was released.

                                     3
DeLeon denies being involved in any unlawful activity on April 19,

2001.

                  On April 19, 2002, DeLeon filed an action in state court

against a number of defendants, including Officer Larsen, which the

City of Dallas removed to federal court.               In an amended complaint,

he joined Officer Mata and others and asserted, inter alia, federal

causes of action under 42 U.S.C. §§ 1981 and 1983 for false arrest

and detention, and overlapping state law claims including malicious

prosecution.

                  Sued in their individual capacity, Officers Larsen and

Mata       asserted    qualified      immunity.       Relatedly,   they    filed   a

Rule       7(a)    motion    urging   that   DeLeon    specify   his   allegations

tailored to their qualified immunity defenses.               DeLeon opposed the

Rule 7(a) motion, and the district court denied it.2                      They then

joined a motion for protective order, filed in a related case,3

seeking to stay discovery pending the district court’s qualified

immunity ruling.            Finally, the Officers filed a Rule 12(c) motion

       2
      Although Officers Larsen and Mata do not appear to appeal
directly the district court’s denial of their Rule 7(a) motion,
the district court should have ordered a Rule 7(a) reply in this
case. As we have consistently held, “trial courts ought
routinely require plaintiffs to file a reply under [Rule] 7(a) to
qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161
(5th Cir. 1999). Despite the district court’s error, we need not
remand this case for a Rule 7(a) reply as we are convinced,
especially after oral argument, that DeLeon has pled his “best
case.” see Morin, 77 F.3d at 121.
       3
      Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action
No. 3:02-CV-0649-K, on appeal to this Court in Nos. 04-10488 and
04-10829.

                                             4
for judgment on the pleadings based on DeLeon’s failure to state a

claim capable of defeating their qualified immunity defenses.

               The district court dismissed DeLeon’s § 1981 claim, but

it found that DeLeon pleaded facts sufficient to state federal

causes of action against Officer Larsen for false arrest and

detention under § 1983, as well as state law causes of action for

defamation and libel, intentional infliction of emotional distress,

and malicious prosecution and abuse of process.                   The court also

found DeLeon’s pleading sufficient to state claims against Officer

Mata for false arrest and imprisonment, defamation and libel, and

malicious prosecution under state law.4                In so doing, the court

rejected       the   Officers’    qualified      immunity     defenses   from   the

standpoint of insufficient pleadings, and it found that genuine

issues of triable fact existed as to whether Officers Larsen and

Mata       engaged   in   the   acts   alleged    to   have   violated   DeLeon’s

constitutional rights.           The court did not set forth these facts.

These Officers timely appealed.




       4
      Because the Officers specifically brief only the district
court’s denial of their qualified immunity defenses as to
DeLeon’s federal false arrest and state malicious prosecution
claims, they have waived any appellate contest of the sufficiency
of pleading of DeLeon’s other claims. Shields v. Twiss, 389 F.3d
142, 151 (5th Cir. 2004). Nevertheless, the outcome of this
appeal will most certainly affect the district court’s treatment
of the other claims.

                                          5
                  JURISDICTION AND STANDARD OF REVIEW

             To the extent that the district court’s determination

turns on a question of law, this court has jurisdiction to review

a district court’s denial of qualified immunity.                       Johnson v.

Johnson, 385 F.3d 503, 528 (5th Cir. 2004), both as to federal and

related state law claims.              Morin v. Caire, 77 F.3d 116, 119-20

(5th Cir. 1996).         We review de novo, according to the allegations,

a district court’s order denying a defendant’s Rule 12(c) motion to

dismiss based on qualified immunity.                  Morin, 77 F.3d at 120.5

Dismissal is warranted “only if it appears that no relief could be

granted under any set of facts that could be proved consistent with

the allegations.”        Id.

                                   DISCUSSION

             Qualified immunity shields government officials perform-

ing discretionary functions from liability as well as from suit,

e.g., the costs and risks of pre-trial discovery and trial.                   Babb

v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).               Qualified immunity

analysis is two-tiered.          First, the court must determine whether

the   plaintiff    sufficiently        alleged   a    violation   of   a   clearly

established constitutional right. Morin, 77 F.3d at 120; Anderson,

184   F.3d   at   443.      If   so,    the   court   determines   whether    the

defendants’ conduct was objectively reasonable in light of law


      5
      The standard applicable to a Rule 12(c) motion is the same
as that applicable to a Rule 12(b)(6) motion to dismiss for
failure to state a claim. Johnson, 385 F.3d at 529.

                                          6
clearly established at the time of the events giving rise to the

suit.     Id.

                In response to a qualified immunity defense, “plaintiffs

suing governmental officials in their individual capacities must

allege     specific        conduct      giving   rise    to   the   constitutional

violation.”          Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439,

443 (5th Cir. 1999).6             Distinct from the notice pleading standard

embodied in Rule 8, the heightened pleading standard applicable in

cases defended on qualified immunity grounds requires a plaintiff

to   plead       “with     factual      detail   and    particularity,   not   mere

conclusory allegations.”             Id.; see also Schultea v. Wood, 47 F.3d

1427, 1430 (5th Cir. 1995).              In the § 1983 context, this standard

translates, inter alia, into the requirement that the plaintiff

“identify defendants who were either personally involved in the

constitutional violation or whose acts are causally connected to

the constitutional violation alleged.” Anderson, 184 F. 3d at 443.

                A.    Federal False Arrest and Detention Claim

                Officers Larsen and Mata contend that DeLeon’s false

arrest     claim         should    be     dismissed     for   failure    to    plead

particularized facts that defeat probable cause, and failure to


      6
          See Anderson, 184 F.3d at 443 (finding that the Supreme
Court’s decision in Leatherman v. Tarrant County Narcorics
Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160
(1993), did not abrogate the heightened pleading standard
established in Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985),
as to actions against government officials in their individual
capacities).

                                             7
allege their personal involvement in DeLeon’s April 19, 2001,

arrest.

           Maintaining the sufficiency of his pleadings, DeLeon does

not contest that probable cause for his arrest existed on that

date.   He, in fact, concedes that the officers who arrived on the

scene, having been alerted to the confidential informant’s tip

(false or not) and informed by Officer DeLaPaz that DeLeon had just

engaged in a drug transaction (true or not), had probable cause, on

those bases, to arrest him.    Red Br. at 10.   He also waives the

issue whether Officers Larsen and Mata had probable cause to test

the substance found on his person. Rather, in his Complaint DeLeon

asserts that Officer Larsen is liable for “falsely arresting and

detaining Mr. DeLeon and causing to be prepared documentation

falsely implicating Mr. DeLeon in the sale of illegal drugs, when

no probable cause or justification existed for such actions.”

R. at 93-94.    Significantly, contrary to the district court’s

finding, DeLeon’s Complaint does not assert a false arrest and

detention claim under state (or federal) law against Officer Mata.

           As to Officer Larsen, DeLeon has failed to state a claim

for constitutional violation of his right to be free from false

arrest. His factual allegations do not bring Officer Larsen within

the purview of his false arrest claim.     The only particularized

factual allegation against Officer Larsen (and Mata) is that he

(and Mata) allegedly field tested the white powder substance and

reported that it tested positive for cocaine.   This is the only act

                                 8
that DeLeon attributes to the Officers, but according to his own

allegations, this act was unrelated to his false arrest.                      DeLeon

alleges that he was observed by Officer DeLaPaz exchanging drugs

for money with the confidential informant, was apprehended by an

unnamed police officer(s), searched by an unnamed police officer(s)

who seized a baggie of white powder from his pants pocket, accused

of selling cocaine, and then arrested.                 (First Am. Complaint,

¶ 16).   According to his sole factual allegation against Officers

Larsen and Mata (¶ 22), the allegedly false field test for cocaine

has no connection to the initial arrest but instead relates to the

allegedly   false   arrest    warrant      affidavit    executed       by    Officer

DeLaPaz.

            DeLeon does not allege that Officer Larsen (or Mata)

participated in his initial arrest on April 19, nor does he allege

that Officer Larsen (or Mata) participated in any way in the events

leading up to that arrest.            Consequently, his contention that

Officers Larsen (and Mata) “were the producing cause of [his]

wrongful and    unlawful     arrest    .   .   .,”   see   Red   Br.    at    9,   is

unsupported by the factual allegations stated in his Complaint.

            DeLeon also alleges, however, that Larsen is within the

purview of a false detention claim on the theory that Larsen’s

false reporting on April 19, 2001, led, in part, to the arrest

warrant by which he was taken into custody on June 11 and held for

three more months.         (This is a generous reading of a vague

complaint.)    Unfortunately for DeLeon, the claim still fails for

                                       9
lack of particularity. This court addressed arguments of a similar

nature    in    Morin,    supra.         There,    the   court   found     that   the

plaintiff’s allegations — for example, that the defendants “knew or

should have known that the statements of [another person allegedly

involved in the asserted violations] [sic] were false” — failed to

state a claim under § 1983 for lack of specific factual allegations

to support these conclusions.              Morin, 77 F.3d at 121.          DeLeon’s

Amended    Complaint      alleges    factually       that   Larsen    (and    Mata)

“allegedly” field tested the “white powder” and concluded it was

cocaine.       (¶ 22).    Later, it states conclusionally that Larsen

caused documentation to be prepared falsely implicating DeLeon

(¶¶ 48, 49, 50).7        The Complaint suffers deficiencies similar to

those in the complaint in Morin.                To start, DeLeon’s conclusory

allegations are not as particularized as those in Morin.                    Instead

of alleging unreliability and collusion in his Complaint, DeLeon

argues these claims in briefing only.               It is only in argument that

DeLeon claims that “[c]learly, Mata and Larsen were either acting

in   concert     with    DeLaPaz    in    his     efforts   to   violate    clearly

established law, or Larsen and Mata failed and refused to perform

the tasks for which they were hired, again resulting in a violation

of clearly established law.”              See Appellee’s. Br. at 3, 7, 10.

Nowhere in his complaint does DeLeon allege that Officers Larsen

      7
      As to Mata, the Complaint purports only to state claims for
defamation (¶ 51) and malicious prosecution (¶ 54). As we note
supra, Officer Mata does not brief these claims and has waived
them.

                                           10
and Mata conspired with Officer DeLaPaz to violate his rights or

acted with such incompetence that they should be stripped of

qualified   immunity.      The   Complaint   does   not   allege   that   the

officers did not conduct a field test at all; nor does it allege

that the field test was negative and they falsely reported the

result as positive; nor does it allege that their field testing was

so incompetent that no reasonable officer could have relied on its

results.

            Counsel’s attempt to inject a failure to train claim into

the case at oral argument, presumably as a last-ditch effort to

defeat qualified immunity or probable cause by demonstrating plain

incompetence, fails, at the least, for the complete absence of

factual allegations in his Complaint regarding improper training or

improper performance of police testing procedures.           DeLeon’s only

other Complaint allegation of falsity is that “any allegations made

by any officer to the contrary [of his denials] are false.”

(¶ 41).    R. at 92.    DeLeon’s attempt to impute to Officers Larsen

(and Mata) the particular allegations against Officer DeLaPaz,

citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.

1985), does not comport with the heightened pleading standard

applicable in cases involving qualified immunity defenses.

              B.   State Law Malicious Prosecution Claim

            Officers Larsen and Mata assert that any federal cause of

action for malicious prosecution by DeLeon is foreclosed by circuit



                                    11
precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003)

(en banc). His malicious prosecution claim, however, is founded in

state law, to which Castellano is inapplicable.                Because the

Officers have not briefed state law, we decline to rule on an

inadequately briefed issue.

                                   CONCLUSION

           Based on the foregoing discussion, this court REVERSES

the district court’s denial of immunity to Officers Larsen and Mata

for DeLeon’s false arrest and detention claims, and we REMAND WITH

INSTRUCTIONS TO DISMISS these claims.            The appeal is DISMISSED

insofar   as   it   relates   to    the   Officers’   inadequately   briefed

challenge to the sufficiency of pleading of DeLeon’s state law

claims.

           REVERSED IN PART, REMANDED IN PART, and DISMISSED IN

PART.




                                       12
