                          UNITED STATES COURT OF APPEALS
                                    For the Fifth Circuit
                          _____________________________________

                                       No. 97-41220
                                    Summary Calendar
                          _____________________________________

                JOHN HARVEY MILLER; DEBBIE TUCKER LOVELESS,

                                                                               Plaintiffs-Appellees,

                                             VERSUS

                              RAINS COUNTY, TEXAS; ET AL,

                                                                                        Defendants,

                 ALWIN S. SMITH; RICHARD WILSON; FRANK LONG,

                                                               Defendants-Appellants.
                         _______________________________________

                           Appeal from the United States District Court
                                for the Eastern District of Texas
                                         (6:95-CV-982)
                         _______________________________________

                                           July 19, 1999

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:1

                             I. Factual and Procedural Background

       This case involves an alleged malicious prosecution in violation of the United States

Constitution, brought pursuant to 42 U.S.C. § 1983. The defendants-appellants, Alwin S. Smith

(“Smith”), Frank Long (“Long”) and Richard Wilson (“Wilson”) ( collectively “appellants”),

appeal the district court’s denial of their summary judgment motions.

       A jury convicted John Harvey Miller (“Miller”) and Debbie Tucker Loveless (“Loveless”)

(collectively “appellees”) for the murder of Loveless’ daughter, April Tucker (“April”). On state

habeas, the Court of Criminal Appeals vacated Miller’s and Loveless’ conviction on the grounds


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         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of ineffective assistance of counsel. Miller and Loveless then brought a section 1983 action

against Smith and Long, the prosecuting attorneys, and Wilson, the sheriff, involved in their

murder convictions. Smith, Long and Wilson asserted that they were entitled to absolute and/or

qualified immunity and filed motions for summary judgment. The district court denied their

motions for summary judgment after finding that genuine issues of material fact existed in regard

to their immunity claims. The district court, however, failed to specifically mention in its order

what material facts were in dispute. Following an interlocutory appeal, this Court remanded the

case to the district court and ordered that it clarify what factual disputes existed regarding the

denial of appellants’ motions for summary judgment. Subsequently, the district court issued its

order setting forth the following as genuine issues of material fact regarding the issues of absolute

and qualified immunity:

       (1) whether Smith and Long actively participated in a search of the appellees’ property

and residence for “evidence” on January 5, 1989;

       (2) whether Smith and Long actively participated in a search of the appellees’ property

and residence for evidence on January 7, 1989;

       (3) whether, prior to and during the criminal trial of the appellees, the appellants

deliberately concealed exculpatory evidence that conclusively established that April had been

attacked and killed by a family dog;



       (4) whether prior to and during the criminal trial of the appellees, the appellants

deliberately concealed exculpatory evidence that the family dogs had viciously attacked a social

worker on several occasions; and

       (5) whether prior to indictment and trial, the appellants fabricated or manufactured

evidence to present to a grand jury when previous searches failed to reveal any evidence of the

appellees’ involvement in April’s death.

       Now, with the district court’s order specifying the genuine issues of material fact that


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were utilized in denying the appellants’ motions for summary judgment, this Court renders its

decision.

                                      II. Standard of Review

       This Circuit reviews a district court's grant of summary judgment de novo, applying the

same standard of review as would the district court. See Shanks v. AlliedSignal, Inc., 169 F.3d

988, 992 (5th Cir. 1999); see Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961

(5th Cir. 1999). Summary judgment evidence is viewed in the light most favorable to the party

opposing the motion. Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456-58

(1992). Summary judgment is proper only when it appears that there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c);

see Merritt-Campbell, Inc.,164 F.3d at 961. Disputes concerning material facts are genuine “if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Douglas v. United Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An



issue is material if it involves a fact that might affect the outcome of the suit under the governing

law. Id. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).

                                           III. Discussion

       The appellants assert that the factual disputes found by the district court regarding

absolute and qualified immunity are not material. In addition, they argue that there is no

competent summary judgment evidence in the record to support the genuine issues of fact found

by the district court. We find that the appellants’ arguments are not valid.

       After reviewing the record, we conclude that it sufficiently supports the genuine issues of

fact found by the district court. Furthermore, we find that the district court was correct in

determining that there are material factual disputes that prevent the appellants from being awarded

summary judgment based upon their absolute and qualified immunity defenses.


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        Normally, a criminal prosecutor is fully protected by absolute immunity when performing

the traditional functions of an advocate. Kalina v. Fletcher, 118 S.Ct. 502, 504 (1997)(citing

Imbler v. Pachtman, 424 U.S. 409, 410 (1976)).         However, a prosecutor who engages in

investigatory functions normally conducted by the police cannot claim absolute immunity but

instead may only rely upon qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275

(1993). Accordingly, we hold that the district court was correct in finding that the factual

disputes of whether Smith and Long actively participated in a search of the appellees’ property

and residence for evidence, are material to the defense of absolute immunity.

        The appellants also contend that the district court improperly denied their motions for

summary judgment in regard to their defense of qualified immunity. Section 1983 provides a

federal cause of action against any person who, acting under color of state law, deprives another

of his federal rights. 42 U.S.C. § 1983. In order to determine if the appellees have a valid section

1983 claim and whether the defense of qualified immunity can be utilized, the court must

determine whether the appellants’ “‘conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Buckley, 509 U.S. at

268 (1993)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, the appellants will

be entitled to qualified immunity for their actions only if they “acted in an objectively reasonable

manner in view of the existing law an the facts available to [them].” Lampkin v. City of

Nacogdoches, 7 F.3d 430, 434-35 (5th Cir. 1993). Normally, the question of qualified immunity

should be decided by the court without the assistance of the jury; however, where the underlying

facts essential in the determination of the immunity issue are controverted, a determination by the

trier of fact is necessary. Id. at 435.

        It is evident that there are material facts in dispute regarding whether the appellants’

conduct violated the constitutional rights of the appellees. Specifically the facts in dispute are: (a)

whether prior to and during the criminal trial of the appellees, the appellants deliberately

concealed exculpatory evidence that conclusively established that April had been attacked and


                                                   4
killed by a family dog; (b) whether prior to and during the criminal trial of the appellees, the

appellants deliberately concealed exculpatory evidence that the family dogs had viciously attacked

a social worker on several occasions; and (c) whether prior to indictment and trial, the appellants

fabricated or manufactured evidence to present to a grand jury when previous searches failed to

reveal any evidence of the appellees’ involvement in April’s death. Furthermore, because the

facts essential in the determination of the immunity issue are controverted, the district court

properly denied the appellants’ motions for summary judgment so that the jury could make the

essential factual findings. Accordingly, we hold that the district court was correct in denying of

the appellants’ motions for summary judgment based upon the defense of qualified immunity.

                                          IV. Conclusion

       For the aforementioned reasons, we AFFIRM the district court’s denial of the appellants’

motions for summary judgment and REMAND for trial on the merits.




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