                      REVISED JANUARY 28, 2003

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                       _______________________

                              No. 01-30622
                        _______________________


ANTHONY G. KEKO,
                                         Plaintiff-Appellee-Appellant,

                                versus

I. F. HINGLE, ET AL.;
                                                           Appellants,

I. F. HINGLE; CHARLES BOWLES; CHARLES GUEY;
DON ENGLISH; SADIE WILLIAMS GUEY; ERNEST WOOTON;
COREGIS INSURANCE COMPANY,
                                            Defendants-Appellees,

and

MICHAEL H. WEST, Dr.; ST. PAUL FIRE AND MARINE INSURANCE COMPANY,
                                           Defendants-Appellants.

_________________________________________________________________

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


_________________________________________________________________

                            January 8, 2003

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          Two interlocutory appeals have been brought from the

district court’s decisions in this 42 U.S.C. § 1983 action filed by

Tony Keko to redress his overturned conviction of the 1991 murder
of his estranged wife Louise.     Keko appeals the court’s rendition

of a Rule 54(b)-certified summary judgment in favor of two sheriffs

and several law enforcement and prosecutorial personnel involved in

obtaining the conviction.       Dr. Michael H. West, whose tainted

expert testimony led to the overturning of Keko’s conviction,

appeals from the denial of absolute immunity. We affirm the former

judgment and dismiss the appeal of the latter judgment.

          The first judgement is readily analyzed.        Keko argues on

appeal only that the appellees — Plaquemines Parish Sheriff Hingle,

former Sheriff Wooten,1 Sheriff’s Officers Bowles, English, and

Charles Guey, and District Attorney Investigator Sadie Guey —

contributed to a constitutionally defective search warrant that,

when approved by a state court judge, authorized inter alia the

taking of dental impressions from Keko.2         Keko asserts that some

information   was   knowingly   omitted   from     the   search   warrant

application and that some information included in the warrant

application was either false or was incorrectly skewed against him.

He urges, in short, that the search warrant was so lacking in

probable cause as to overcome the appellees’ qualified immunity


     1
      Wooten’s name is misspelled in the caption of this case as
“Wooton.” It is not clear that Keko has even briefed his appeal
against Wooten’s favorable judgment, but we address the issue as
a convenience.
     2
      The dental impressions, according to Dr. West, then a
forensic odontologist, corresponded with bite marks found on
Louise’s exhumed body. Dr. West’s evidence provided the only
direct evidentiary link at trial connecting Keko to the crime.

                                   2
defense.       See Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct.

1092, 1098 (1986).          We disagree, but will not belabor this opinion

by repeating the thorough analysis of the affidavit undertaken by

the district court in a summary judgment hearing.                Keko raises no

arguments here that were not fully and dispositively addressed at

that time by the district court, and he advances few if any

authorities remotely supporting his legal position.                The district

court concluded that probable cause existed on the face of the

affidavit,      that   any    omissions       were   either   neutral    regarding

probable cause or were helpful to Keko, and that, alternatively,

the   officers       were   shielded     by   qualified   immunity      for   their

objectively reasonable conduct in framing the affidavit.                   Finding

no error of law or fact, we affirm.

               Dr. West’s appeal of the denial of absolute immunity is

more problematic.3          First, he is not an employee of Plaquemines

Parish    or    of   any    state   or   local   government    agency.        Keko’s

allegations under § 1983 are viable against this private individual

only because they include claims of conspiracy by Dr. West with

state actors to commit malicious prosecution and to procure a

falsely grounded arrest warrant.              As the Supreme Court has held, a


      3
      The denial of an immunity defense may be subject to
interlocutory appeal. While this court has jurisdiction to rule
on legal issues raised in such an appeal, we lack jurisdiction
and must dismiss if the appeal turns on disputed material fact
issues. Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151,
2157 (1995); Cantu v. Rocha, 77 F.3d 795, 802-803 (5th Cir.
1996).

                                          3
private party may be liable for conspiring with state actors to

violate civil rights.          Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183

(1980).       Second, while the existence of a constitutional tort of

malicious prosecution has been questioned, the claim currently

remains cognizable in this circuit.                 See, e.g., Kerr v. Lyford, 171

F.3d 330, 340 (5th Cir. 1999); see also Castellano v. Fragozo, 311

F.3d 689, 712 (5th Cir. 2002) (Barksdale, J., dissenting).                          Dr.

West has not contested the legal sufficiency of the claims against

him.       Nor has Dr. West challenged the district court’s ruling that

he   might     be   entitled    to    qualified       immunity,    but    fact   issues

preclude its being granted at this time.

               Instead, and more boldly, Dr. West asserts that he is

entitled to absolute immunity (a) for the expert witness report he

authored, which was offered at a probable cause hearing to obtain

an   arrest     warrant   for     Keko,4      and    (b)   for    the    research   and

investigative work that led to preparation of the expert report.

Although West has not been sued for his testimony at Keko’s

criminal trial, he bases his claim on the Supreme Court’s decision

in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1983), holding

that witnesses, like judges and prosecutors, are shielded by

absolute       immunity   from    §    1983    liability     arising      from   their



       4
      The ex parte probable cause hearing was a separate
proceeding from the search warrant hearing that is the current
basis for Keko’s appeal against the sheriffs and law enforcement
personnel.

                                           4
participation in judicial proceedings.                    Dr. West argues, not

without force, that the protection of absolute immunity is lost if

an expert witness, whose testimonial competence derives solely from

the application of his expertise to an investigation conducted by

the   state,5   may   be    sued    for    the    activity       that    spawned   his

testimony. Or, as Judge Easterbrook put it,

      It would be a hollow immunity if the aggrieved party
      could turn around and say, in effect: “True, your
      delivery of bad testimony is immunized, but preparing to
      deliver that testimony is not, so I can litigate the
      substance of your testimony.” Substance is exactly what
      Briscoe puts off limits.

Buckley v.      Fitzsimmons,       919   F.2d    1230,    1245    (7th    Cir.   1990)

(emphasis in original), rev’d on other grounds, 509 U.S. 259, 113

S.Ct. 2606 (1993) (affirming grant of absolute immunity to expert

witnesses in criminal prosecution).

           Unfortunately for Dr. West, the Supreme Court not only

perpetuated absolute immunity for witnesses in judicial proceed-

ings, based on an historical analysis of the law as it stood when

§ 1983 was enacted, but the Court has subsequently bounded absolute

immunity   within     the   precise       confines   of    adversarial      judicial

proceedings.     Thus, when either a police officer or a prosecutor

becomes a “complaining witness” in a probable cause hearing,

neither official may claim absolute immunity.                    Malley v. Briggs,

supra (police officers); Kalina v. Fletcher, 522 U.S. 118, 118

      5
      There is no allegation here that Dr. West participated in
Keko’s prosecution in any other way than by his role as an expert
consultant and witness.

                                           5
S.Ct. 502 (1997) (prosecutors).      The action of applying for a

warrant, the Court held, “while a vital part of the administration

of criminal justice, is further removed from the judicial phase of

criminal proceedings than the act of a prosecutor in seeking an

indictment.”   Malley, 475 U.S. at 342-43, 106 S.Ct. at 1097; see

also Kalina, 522 U.S. at 129-30, 118 S.Ct. at 509 (distinguishing

a prosecutor’s preparation of an information and motion for warrant

from executing the certification of underlying facts under penalty

of perjury; the prosecutor in the latter capacity performed an act

“any competent witness might have performed”).     These decisions

suggest that an informal, ex parte probable cause hearing is not

the type of judicial proceeding for which a witness’s testimony

would require the full shield of absolute immunity.6      The only

“testimony” now at issue is his report submitted in such a probable


     6
      In the wake of Briscoe, in contrast, cases have extended
absolute testimonial immunity to testimony before the grand jury,
post-indictment adversarial suppression hearings, and other
adversarial criminal proceedings. See, e.g., Jones v. Cannon, 174
F.3d 1271, 1286 (11th Cir. 1999); Kincaid v. Eberle, 712 F.2d
1023, 1024 (7th Cir. 1983); Holt v. Castaneda, 832 F.2d 123, 125
(9th Cir. 1987), cert. denied, 485 U.S. 979 (1988); Strength v.
Hubert, 854 F.2d 421, 423-25 (11th Cir. 1988); Macko v. Byron,
760 F.2d 95, 97 (6th Cir. 1985); Williams v. Hepting, 844 F.2d
138, 142 (3d Cir.), cert. denied 488 U.S. 851 (1988); see
generally Martin A. Schwartz & John E. Kirklin, Section 1983
Litigation: Claims, Defenses, and Fees § 9:10, at 296-98 (3d ed.
1997); compare Moore v. McDonald, 30 F.3d 616, 619-20 (5th Cir.
1994) (absolute immunity for officer’s testimony in adversarial
pretrial suppression hearing) with Enlow v. Tishomingo County,
Miss., 962 F.2d 501 (5th Cir. 1992) (false arrest distinguished
from malicious prosecution claims; police officer not necessarily
immune for perjurious grand jury testimony leading to
constitutional malicious prosecution claim).

                                 6
cause hearing. We decline to extend absolute witness immunity into

an arena where the Supreme Court has not found factual testimony to

justify such heightened protection. See also Wheeler v. Cosden Oil

& Chem. Co., 734 F.2d 254, 261 (5th Cir.), modified on other

grounds, 744 F.2d 1131 (police officer not absolutely immune from

§ 1983 malicious prosecution claim for false testimony at ex parte

probable cause hearing).

            To reinforce his reliance on Briscoe, Dr. West draws a

distinction between Malley and Briscoe based on the role of the

witness in the prosecution. Under Malley, he urges, a “complaining

witness”    —    one   who   instigates,      encourages,   or    continues    the

prosecution — is only entitled to qualified immunity, while a “lay”

witness (West’s expression) must always be immune under Briscoe.

For present purposes, West’s use of the distinction is misplaced.

He may be a complaining witness; in any event, this case presents

a question of fact as to the degree of his participation in the

prosecution that, on this record, cannot be resolved on summary

judgment.       See Cervantes v. Jones, 188 F.3d 805, 810 n.5 (7th Cir.

1999).7     West       may   not   have   been    a   formal     member   of   the

prosecutorial       team     or    responsible    for   final      prosecutorial

decisions, but his report stated that “indeed and without doubt”

the bite marks he observed on the exhumed body of Louise Keko



     7
      See also Enlow, supra, at 511 (fact issues preclude grant
of absolute or qualified immunity).

                                          7
matched Tony ’s dental impressions.           Further, according to the

state court, his report was critical to obtaining probable cause to

arrest, he examined only Tony Keno’s dental impressions and not

those of any other potential suspect, and he performed his function

at the behest of the sheriff’s office to assist in “identifying”

the attacker.     The complaining witness doctrine thus offers no

defense as a matter of law to Dr. West.

           The doctor also seeks absolute immunity for his pre-

testimonial activities in examining Mrs. Keno’s body, obtaining and

examining Keko’s dental impressions and writing a report. He cites

only policy statements enunciated in Briscoe and what he asserts

are comparable policies surrounding absolute prosecutorial immunity

to justify broadening the concept of testimonial immunity beyond

what is introduced in the courtroom.      While we have some sympathy

for the policy views he espouses, there is virtually no authority

to   support   them.8   Further,   to   the    extent   Dr.   West’s   pre-

testimonial activities were investigative, his immunity ought to

correlate with the merely qualified immunity granted to the police

for comparable activities.    Thus, if, as alleged, Dr. West used

shoddy and unscientific research techniques that resulted in a

report critical to a baseless murder prosecution of Keko, there is


      8
      The expert witnesses were granted absolute immunity in
Buckley, supra, but as the court’s opinion granting absolute
immunity to the prosecutors in that case was overturned by the
Supreme Court, the status of his comparable decision for the
experts seems uncertain.

                                   8
no obvious reason why Dr. West should enjoy immunity greater than

that of other investigators.

            By holding that absolute immunity does not shield Dr.

West, we do not imply any opinion on the strength of his qualified

immunity defense or the ultimate validity of Keko’s conspiracy

allegations.9

                             CONCLUSION

            For the foregoing reasons, we conclude that the summary

judgment in favor of Sheriffs Hingle and Wooten, Officers Bowles,

Charles Guey, and English, and Investigator Sadie Guey must be

affirmed.    Dr. West’s appeal of the district court’s denial of

absolute immunity must be dismissed.

            AFFIRMED in Part, DISMISSED in Part.




     9
      Dr. West also raises on appeal the district court’s denial
of summary judgment on Keko’s federal and state law malicious
prosecution claims. Since this ruling is not germane to his
absolute immunity claim, and since Dr. West did not appeal the
court’s denial of qualified immunity, we lack jurisdiction over
this issue.

                                  9
