UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 94-60380 No. 94-60577
IMELDA C. CANTU,
Plaintiff-Appellee,
VERSUS
WILLIE ROCHA, IN HIS INDIVIDUAL CAPACITY, ET AL.,
Defendants,
WILLIE ROCHA, in his individual capacity GREG SALAZAR, in his individual capacity and PHILIP ETHRIDGE, in his individual capacity
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas February 28, 1996
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
DeMoss, Circuit Judge:
This suit arises out of plaintiff Imelda Cantu's allegation
that she was sexually assaulted at a party thrown by the University
of Texas-Pan-Am's criminal justice club. Cantu initiated this
civil action against several state actors, based on their alleged
mishandling of the assault investigation and other conduct which
occurred after the assault. This appeal involves only three of the original defendants: (1) Willie Rocha, an investigator for the
University of Texas-Pan Am (UT-PA) police department; (2) Greg
Salazar, ex-Chief of Police for the UT-PA police department; and
(3) Philip Ethridge, a professor in UT-PA's criminal justice
department. Before the Court for consolidated review are two
orders of the district court denying defendants' multiple motions
for dismissal or summary judgment: (1) an order entered April 26,
1994, denying defendants' motion(s) for dismissal or summary
judgment on the basis of qualified immunity only (appeal no. 94-
60380); and (2) an order entered July 14, 1994, denying defendants'
motion(s) for dismissal or summary judgment on other grounds
(appeal no. 94-60577). The district court's holding that
defendants are not entitled to immunity from suit will be reversed
and judgment will be rendered that, under the applicable
principles, defendants are entitled to immunity from Cantu's
federal and state law claims. The remainder of the appeal will be
dismissed for lack of appellate jurisdiction.
I. RELEVANT FACTS
On the evening of December 14 and the early morning hours of
December 15, 1990, UT-PA's criminal justice club threw a party in
three adjacent rooms at the Bahia Mar Resort Hotel on South Padre
Island.1 The central room was used for dancing and refreshments.
The side rooms were used for rest and bathroom facilities. About
twenty students attended the party, which was supervised by
1 UT-PA is located in Edinburg, Texas, roughly 100 miles from South Padre Island.
2 criminal justice professor Philip Ethridge. Cantu claims that
fellow-student George Lopez sexually assaulted her during the party
in one of the side rooms rented for the party.
A. The Ethridge Meeting and Subsequent Events
Cantu did not immediately report the incident to law
enforcement. She did, however, discuss what happened at the party
with fellow students. Several months later, on April 3, 1991,
Professor Ethridge was approached by several female students,
including Rosa Linda Flores, Veronica Galvan, Yolanda Escobar,
Rosalba Ramos and Maria Solis. The women informed Ethridge that
Cantu was telling people she had been sexually assaulted at the
December party. On April 5, a meeting was held to discuss the
allegations. Present were Ethridge, the Dean of Students, an
assistant professor in the criminal justice department, Ms. Cantu
and several female students, including Rosa Linda Flores, Sylvia
Galvan and Cynthia Rodriguez. At that meeting, Flores and Sylvia
Galvan, who were both present at the party, related details
strongly suggesting that the sexual activity between Cantu and
Lopez was consensual. Based on that information, Ethridge
suggested that Lopez should be present to give his side of the
story. Cantu was offended by Ethridge's remark and took it as
evidence that Ethridge did not believe her account of the assault.
After the April 5 meeting, Cantu alleges, Ethridge embarked on a
course of conduct intended to intimidate her, which included the
following acts: (1) following her in the hallways; (2) obstructing
her passage from a water fountain; (3) showing up in a classroom
3 and positioning himself where Cantu usually sat so that she could
not avoid encountering him and (4) repeatedly going in and out of
a room where she was taking a make-up exam, which affected her
performance. Ethridge unequivocally denies that he followed Cantu,
obstructed her access to a water fountain, positioned himself on
her desk or took any other action designed to intimidate or harass
Cantu.
Cantu claims that she was injured by Ethridge's behavior
because she was unable to attend class if he was substituting and
had to delay her graduation to avoid taking classes taught by
Ethridge. On appeal, Cantu's only claim against Ethridge is a
state law claim for intentional infliction of emotional distress.
B. The Garza Meeting
On April 10, 1990, Cantu met with Edinburg Chief of Police
Raul Garza. Garza claims that he informed Cantu and her mother
that they needed to file a complaint with the South Padre Island
Police Department, which had jurisdiction over the offense. When
Cantu hesitated, Garza suggested that the UT-PA police department
be consulted and phoned the chief of the UT-PA police department,
Greg Salazar, who joined the meeting. After Cantu, Garza and
Salazar discussed the assault, Chief Salazar opined that the UT-PA
police department would have concurrent jurisdiction with the South
Padre Island Police Department. Both Chief Garza and Chief Salazar
understood that Cantu wanted the UT-PA police department to
investigate. Cantu does not claim that she made any statement or
took any action at that time to dispel that understanding. Cantu
4 gave Salazar a medical report prepared by Planned Parenthood, where
she had gone to be examined some time after the assault. After
accepting the report, Salazar advised Cantu to contact Willie
Rocha, a licensed investigator with the UT-PA police department,
for information about the investigation. Cantu never contacted
Rocha and never filed a formal complaint with the UT-PA police
department.
C. The Rocha Investigation
Salazar assigned Rocha to investigate Cantu's assault
allegation. Shortly thereafter Rocha interviewed three of Cantu's
friends: Veronica Galvan, Yolanda Escobar and Maria Solis.
Veronica Galvan, along with her sister Sylvia Galvan (not
interviewed) were present at the party and drove home to Edinburg
with Cantu. Veronica Galvan signed an affidavit memorializing the
interview. Galvan's affidavit states that she observed Cantu and
Lopez dancing in a "provocative way" which involved "grabbing his
butt and penis." Later that evening when she and several friends
tried to get Cantu out of the bathroom and away from Lopez, Cantu
shook her fist at them and told them to leave her alone, which they
did. The next morning Cantu looked nervous and began crying on the
way home. Cantu stated she was ashamed of what she had done and
that she was going to Planned Parenthood to be checked. Later
Cantu told Veronica Galvan that she had bruises in her mouth and
that she had "slept" with Lopez. Veronica Galvan stated that she
did not know whether Cantu was raped or willingly participated.
5 Yolanda Escobar, who did not attend the party, was Cantu's
confidante. Cantu told Escobar that she was worried because Sylvia
Galvan had seen Cantu performing oral sex on Lopez. Cantu also
told Escobar that Lopez was too rough, which caused bruises in her
mouth. Finally, Cantu told Escobar that she was suicidal and was
considering changing schools. Escobar did not know whether Cantu
consented to sexual relations with Lopez or was assaulted.
Maria Solis, who also did not attend the party, signed an
affidavit stating that Cantu had confided she was embarrassed about
what happened at the party. Sylvia Galvan also confided in Solis.
According to Solis, Sylvia Galvan claimed to have seen Cantu
performing oral sex on Lopez. Sylvia Galvan told Solis that
several women repeatedly tried to get Cantu away from Lopez, but
that Cantu would not leave and, with a raised fist, told them to
leave her alone.
Cantu alleges that Rocha made statements in these witness
interviews with Galvan, Escobar and Solis that impeached her virtue
and damaged her reputation. Cantu's allegations are supported by
affidavits from the three witness-interviewees in which Galvan,
Escobar and Solis state that Rocha unnecessarily prolonged the
interviews and inappropriately offered his opinion of the case.
Veronica Galvan and Escobar stated that Rocha made the following
offensive statements: (1) that the incident "did not seem like
rape"; (2) that Cantu "had the hots" for Lopez; (3) that there is
only so much provocation a person can take; (4) that Cantu, Lopez
and another woman were involved in a "love triangle" (illustrated
6 by drawing a triangle with the names of Cantu, Lopez and an
unidentified third person); (5) that Rocha intended to interview
Cantu and would arrest her if he thought she was lying and (6) that
he would subpoena their sister (Sylvia Galvan) if she did not come
in to tell what she knew about the assault. Solis' affidavit
states that Rocha remarked that the incident "did not seem like
rape" and opined that Cantu "had the hots" for Lopez. Solis also
claimed that Rocha asked her offensive hypothetical questions, such
as whether she would bite someone if being forced to give a "blow
job."
The UT-PA investigation was eventually dropped when Cantu did
not file a formal complaint. Subsequently, university officials
reached the conclusion that alleged sexual assault fell outside the
jurisdiction of the UT-PA police department. In August 1991, Cantu
reported the incident to the South Padre Island Police Department.
The grand jury, however, failed to indict and no criminal action
has ever been prosecuted.
II. PROCEDURAL HISTORY
Cantu sued initially in state court. Defendants removed and
filed motions: (1) for review of their immunity defense; (2) for
protection from discovery pending resolution of the immunity issue
and (3) for dismissal or summary judgment. Defendants' motion for
protection pending resolution of the immunity issue was granted.
Cantu moved for permission to amend her complaint, which was also
granted. Defendants filed supplemental motion(s) for dismissal or
summary judgment, alleging new grounds. In March 1994, the
7 magistrate judge assigned to the case recommended that all
defendants be granted immunity, that the defendants' motion for
summary judgment be granted and that Cantu's claims be dismissed.
After Cantu filed objections, the district court heard
argument on the immunity issue and Cantu was again granted
permission to amend her petition. In her third amended complaint
Cantu alleged causes of action against Rocha and Salazar for
invasion of her federal constitutional right to privacy, state law
causes of action against Rocha for invasion of privacy and
defamation, and a state law cause of action against Ethridge for
intentional infliction of emotional distress.
On April 26, 1994, the district court entered an order
granting the defendants immunity from damages in their official
capacities but denying Rocha, Salazar and Ethridge qualified
immunity in their individual capacities.2 Defendants Rocha,
Salazar and Ethridge filed a notice of appeal, which was docketed
as appeal number 94-60380. On July 14, 1994, the district court
entered a second order denying defendants' motion(s) to dismiss or
for summary judgment on grounds other than immunity. Defendants
Rocha, Salazar and Ethridge filed a second notice of appeal, which
2 Cantu's suit against the defendants in their official capacities is in essence a suit against the involved branch of the University of Texas, an agency of the State of Texas. Kentucky v. Graham, 473 U.S. 159 (1985). Absent waiver, the Eleventh Amendment prohibits damage suits against a State in federal court. Id. at 3107. The district court held that the State of Texas did not effect a waiver of immunity applicable to this case. Therefore, the defendants were not subject to suit in their official capacities in federal court.
8 was docketed as appeal number No. 94-60577, and the two appeals
were consolidated.
III. APPELLATE JURISDICTION
As an initial matter, we must address the basis of our
jurisdiction over defendants' appeal. Mosley v. Cozby, 813 F.2d
659, 660 (5th Cir. 1987). Federal courts of appeal have
jurisdiction of "appeals from all final decisions of the district
courts." 28 U.S.C. § 1291 (West 1993). Under the collateral order
doctrine, a small class of interlocutory orders that (1)
conclusively determine, (2) important issues, which are separate
from the merits of the action, and (3) which would be effectively
unreviewable on appeal from a final judgment, are deemed "final"
for purposes of appeal. Puerto Rico Aqueduct & Sewer Authority v.
Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993) (restating
doctrine articulated in Cohen v. Beneficial Indust. Loan Corp., 337
U.S. 541 (1949)). Interlocutory appeal is the exception, not the
rule. Appeals from district court orders denying summary judgment
on the basis of qualified immunity are immediately appealable under
the collateral order doctrine, when based on an issue of law.
Mitchell v. Forsyth, 105 S. Ct. 2806, 2816 (1985); Hale v. Townley,
45 F.3d 914, 918 (5th Cir. 1995); Sorey v. Kellett, 849 F.2d 960
(5th Cir. 1988). During the pendency of this appeal, the Supreme
Court clarified that orders are based on an issue of law when they
concern only application of established legal principles, such as
whether an official's conduct was objectively reasonable in light
of clearly established law, to a given (for purposes of appeal) set
9 of facts. Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995). Orders
that resolve a fact-related dispute of "`evidence sufficiency',
i.e. which facts a party may, or may not, be able to prove at
trial," however, are not immediately appealable and must await
final judgment. Id.
Johnson concerned three police officers' appeal from denial of
their summary judgment motion seeking qualified immunity from
plaintiff's claim that they beat the him during an arrest. The
officers conceded they were present during the arrest, but denied
that they had beaten the plaintiff or been present while others did
so. Id. at 2153. The district court denied the motion. Id. at
2154. The Seventh Circuit held that it lacked appellate
jurisdiction over the police officers' "`evidence insufficiency'"
contention that `we didn't do it.'" Id. at 2154. The Supreme
Court affirmed. Allowing interlocutory appeal of orders decided by
resolution of a factual dispute central to the underlying claim,
the Court stated, violates the collateral order doctrine's
requirement that determination of the interlocutory issue be
conceptually distinct from the merits of the underlying case. Id.
at 2157. Unlike the present appeal, the defendants in Johnson did
not contend that when taking all of the plaintiff's factual
allegations as true no violation of a clearly established right was
shown. To the contrary, it was undisputed that if the ultimate
facts showed that the defendants participated in the alleged
beating, then the defendants had violated the plaintiff's clearly
10 established rights; the Johnson defendants claimed immunity on the
basis that the fact of the beating never occurred.
In Behrens v. Pelletier, No. 94-1244, 1966 WL 71218 (U.S. Feb.
21, 1996), the Supreme Court clarified that Johnson "permits [the
defendant] to claim on appeal that all of the conduct which the
District Court deemed sufficiently supported for purposes of
summary judgment met the Harlow standard of `objective legal
reasonableness.'" Id. at *8. Thus, in Behrens, the district
court's determination that "material issues of fact remain" did not
preclude appellate review. Id. In the wake of Behrens, it is
clear that Johnson's limitation on appellate review applies only
when "what is at issue in the sufficiency determination is nothing
more than whether the evidence could support a finding that
particular conduct occurred." Id.
A. Federal Immunity - § 1983 Claims Against Rocha and Salazar
Applying these principles, we conclude that the Court has
appellate jurisdiction to review the district court's denial of
defendant Rocha and Salazar's summary judgment motion seeking
qualified immunity from Cantu's federal law claims under § 1983.
In contrast to Johnson, there is no significant fact-related
dispute about Rocha or Salazar's actions in this case. Rocha does
not deny that he made the statements attributed to him in the
witness interviews. Salazar does not deny that he had received
complaints about Rocha's conduct in the past. Similar to the
appeal we considered in the recent case of Hare v. City of Corinth,
"[t]his appeal does not present the fact-intensive inquiry eschewed
11 by Johnson. Rather, it presents a legal issue antecedent to the
determination of whether there are genuine issues of material fact.
Our review of the legal issues in this appeal goes to the legal
question of the correct legal standard." Hare v. City of Corinth,
No. 93-7192, slip op. at 9 (5th Cir. Jan 29, 1996). What was
disputed and decided by the district court in the case now before
us was whether the conduct as alleged violated a clearly
established statutory or constitutional right of which a reasonable
person would have known. This is precisely the variety of order
that Johnson distinguishes as being separable from the merits and
appealable on interlocutory appeal.
B. State Law Immunity - Claims Against Rocha and Ethridge Based on Texas Law
Defendants Rocha and Ethridge also appeal the district court's
denial of qualified immunity under state law from Cantu's state law
claims for invasion of privacy (Rocha), defamation (Rocha) and
intentional infliction of emotional distress (Ethridge). Whether
an order is an appealable "final decision" for purposes of 28
U.S.C. § 1291 is a question of federal, not state, law. Sorey v.
Kellett, 849 F.2d 960, 962 (5th Cir. 1988). We have previously
held that an order denying qualified immunity under state law is
immediately appealable as a "final decision," provided that "the
state's doctrine of qualified immunity, like the federal doctrine,
provides a true immunity from suit and not a simple defense to
liability." Id. at 962 (concluding that interlocutory orders
denying qualified immunity under Mississippi law are immediately
appealable).
12 We are persuaded that Texas law insulates government officials
from the burden of suit, as well as from civil liability for
damages. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653
(Tex. 1994) ("[g]overnment employees are entitled to immunity from
suit arising from performance of their (1) discretionary duties in
(2) good faith as long as they are (3) acting within the scope of
their authority"); Albright v. Dep't of Human Services, 859 S.W.2d
575, 579 & n.1 (Tex. App.--Houston [1st Dist.] 1993, no writ)
(summary judgment is the appropriate vehicle for deciding qualified
immunity, which protects officials from the burdens of litigation
as well as from liability); TEX. CIV. PRAC. & REM. CODE § 51.014(5)
(Vernon Supp. 1995) (allowing interlocutory appeal of orders
denying motions for summary judgment based on the assertion of
immunity);3 see also Travis v. City of Mesquite, 830 S.W.2d 94, 102
n.4 (Tex. 1992) (Cornyn, J., concurring) ("[t]he very reasons for
a grant of immunity are effectively unsalvageable if the official
is determined to be immune from liability only after a trial on the
merits"). While City of Lancaster establishes a test for qualified
immunity in Texas that is "somewhat less likely to be resolved at
the summary judgment stage than is the federal test," the opinion
does not purport to make any change in the established principle
3 We recognize that the Texas Legislature's decision to make such orders appealable is not controlling. Federal law controls the question of whether an order is "final" for purposes of § 1291. Sorey, 849 F.2d at 962. The statute is nonetheless probative of Texas' view that qualified immunity protects officials from the rigors of suit, as well as liability. See id. (Mississippi procedural rules relevant on issue of whether state recognizes qualified immunity from suit, as well as liability).
13 that once that test is met, the privilege of immunity protects the
official from both the rigors of suit and ultimate liability for
civil damages. See City of Lancaster, 883 S.W.2d at 655-57 (citing
Justice Cornyn's concurring opinion in Travis and acknowledging the
need to "achieve[] a fair balance between the competing interests
at stake").
In Texas, qualified immunity encompasses an immunity from
suit. Therefore, under Sorey, orders premised on the denial of
qualified immunity under Texas state law are appealable in federal
court to the same extent as district court orders premised on the
denial of federal law immunity. The issue then becomes whether the
district court's denial of Rocha and Ethridge's summary judgment
motions on the issue of immunity "turned on an issue of law," as
required by Mitchell and Johnson.
The district court's order only generally denies Rocha's
assertion of immunity, and does not explicitly address Rocha's
entitlement to immunity from suit on Cantu's state law defamation
and invasion of privacy claims, which are based on Rocha's
statements to Cantu's friends in the course of the investigation.
The summary judgment record nonetheless demonstrates that there is
no material fact dispute about what Rocha said or did during the
interviews. Thus, resolution of Rocha's entitlement to state law
immunity may be decided by applying well-established principles of
Texas law to the facts, which are given for the purposes of appeal.
For that reason, the district court's decision may be considered
"final" for purposes of 28 U.S.C. § 1291, and this Court has
14 appellate jurisdiction to review Rocha's appeal from the district
court's denial of qualified immunity on Cantu's state law invasion
of privacy and defamation claims.
As to Ethridge, the district court concluded that he was not
entitled to immunity because the acts alleged by Cantu, harassment
and intimidation, could not be considered acts authorized by his
employer, the University. In other words, taking the plaintiff's
allegations as true, the district court held that Ethridge was not
entitled to immunity under Texas "official immunity" law. The
district court's order therefore turned on an issue of law.
Although Ethridge squarely denies the conduct alleged by
Cantu, his qualified immunity defense does not present the sort of
"evidence sufficiency" point held not to be appealable in Johnson.
The district court essentially assumed the truth of Cantu's
allegations, thereby assuming the disputed factual issue in her
favor. (In this connection it is important to understand that it
is not the district court's assumption of the disputed factual
issue that Ethridge appeals; indeed, under Johnson, he could not
interlocutorily appeal such a ruling. Johnson, 115 S. Ct. at
2158.)) The district court then applied the controlling principles
of Texas qualified immunity law -- whether the acts complained of
were within the scope of the defendant official's authority -- to
determine the issue of immunity.
In this case, review of Ethridge's assertion on appeal would
not require this court to decide, on the basis of a limited record,
a disputed factual issue that may well be resolved at trial, i.e.,
15 whether Ethridge engaged in the acts of which he was accused. The
court simply must decide whether, under the facts as alleged by
Cantu, Ethridge is entitled to qualified immunity under Texas law.
We conclude that this court has appellate jurisdiction of
Ethridge's appeal from the district court's denial of his motion
for summary judgment on the basis of qualified immunity.
The District Court's July 14 Order - Appeal Number 94-60577
The two orders on appeal are not clearly referenced to the
defendants' multiple motions for dismissal or summary judgment.
Nonetheless, it is obvious from the record that the district court
intended to delineate immunity issues, which are addressed in the
order appealed by docket number 94-60380, from other grounds for
dismissal or summary judgment, which are addressed in the order
appealed by docket number 94-60577. Any discussion of the subject
defendants' entitlement to summary judgment on the basis of
immunity in the district court's July 14 order is duplicative to
its analysis on April 26.
The Supreme Court has been reluctant to endorse the exercise
of pendant appellate jurisdiction over rulings that, while being
related to the denial of qualified immunity, are not themselves
independently appealable prior to judgment. See Swint v. Chambers
County Comm'n, 115 S. Ct. 1203, 1212 (1995) (finding exercise of
pendant appellate jurisdiction improper where review of the
county's summary judgment motion was neither "inextricably
intertwined" with nor "necessary to ensure meaningful review" of
the district court's denial of qualified immunity). Defendants do
16 not claim that review of the non-immunity grounds addressed in the
district court's July 14 order is inextricably intertwined or
necessary to resolution of the qualified immunity issue. Whether
the defendants' conduct was objectively reasonable in light of
clearly established law is a separate and narrower issue than
whether Cantu adduced sufficient evidence on each element of each
of Cantu's multitude of federal and state law claims to avoid
summary judgment. There is, therefore, no compelling reason to
explore the uncharted terrain of pendant appellate jurisdiction in
this case, and appeal number 94-60577 will be dismissed for lack of
appellate jurisdiction. See Swint, 115 S. Ct. at 1211.
Furthermore, given our disposition of this case on the qualified
immunity appeals, appeal number 94-60577 is moot.
IV. QUALIFIED IMMUNITY
Having successfully negotiated the path mandated by Mitchell,
Johnson and Sorey, we proceed to review the district court's denial
of Rocha, Salazar and Ethridge's motions for summary judgment on
the basis of qualified immunity de novo, using familiar standards.
Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994).
A. Federal § 1983 Right To Privacy Claims - Rocha and Salazar
Federal immunity law shields state officials from personal
liability under federal law for civil damages as long as their
conduct could reasonably have been thought consistent with the
rights they are alleged to have violated. Anderson v. Creighton,
107 S. Ct. 3034, 3039 (1987); Harlow v. Fitzgerald, 102 S. Ct.
2727, 2738 (1982) (whether an official is entitled to qualified
17 immunity depends on the "objective legal reasonableness" of the
official's action as measured by clearly established law). The
right the official is alleged to have violated must have been
clearly established at the time that the conduct in issue occurred.
See Anderson, 107 S. Ct. at 3038. Further, the contours of the
right must be sufficiently clear that a reasonable official would
understand that the conduct in issue constitutes a violation. Id.
Where reasonable public officials could differ on the lawfulness of
the official's actions, the official is entitled to qualified
immunity. Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th
Cir. 1994). "Qualified immunity protects `all but the plainly
incompetent or those who knowingly violate the law.'" Anderson,
107 S. Ct. at 3038 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
Section 1983 provides a cause of action for state deprivation
of the rights and privileges secured by federal law. Cantu's third
amended complaint alleges that Rocha violated her constitutional
right to privacy in violation of 42 U.S.C. § 1983 by: (1) making
slanderous remarks in the witness interviews; (2) conducting an
extra-jurisdictional investigation into her sexual assault and (3)
failing to utilize a pseudonym procedure specified in Texas law for
sexual assault investigations. Cantu alleges Chief Salazar
violated her constitutional right to privacy in violation of 42
U.S.C. § 1983 by: (1) failing to properly train, supervise or
control Rocha despite knowledge of past student complaints about
Rocha; (2) instructing Rocha to conduct an extra-jurisdictional
18 investigation and (3) by failing to advise Cantu that a pseudonym
procedure was available.
The right to privacy consists of two inter-related strands;
one protects an individual's interest in avoiding disclosure of
personal matters (the confidentiality strand) and the other
protects an individual's interest in making certain personal
decisions free of government interference (the autonomy strand).
Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 1981). In the context
of government disclosure of personal matters, an individual's right
to privacy is violated if: (1) the person had a legitimate
expectation of privacy; and (2) that privacy interest outweighs the
public need for disclosure. Fadjo v. Coon, 633 F.2d 1172, 1175-76
(5th Cir. 1981) (discussing the balancing test required to evaluate
privacy right claims).
1. Rocha's Remarks in the Witness Interviews
Cantu claims that Rocha's statements to the three witnesses
violated the confidentiality branch of her right to privacy. The
district court, denying defendants' motion for qualified immunity,
relied exclusively on this ground, holding that Rocha's comments
were "so patently offensive and useless to his investigation that
a reasonable officer would have known that he or she was violating
Plaintiff's clearly established right of privacy." Engaging the
balancing test, the district court noted that the alleged
statements served no legitimate state interest because they were
made "gratuitously and could not have aided in apprehending the
person who allegedly perpetrated the assault."
19 It is unclear what the district court meant to imply by
stating that the comments were made "gratuitously." Officer Rocha
is not alleged to have disclosed any information about the assault
or Cantu's behavior that the witnesses did not already know. See
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.) ("[a]ppellant
cannot claim that his privacy has been invaded when allegedly
private materials have been disclosed to those who already know the
details of that material"), cert. denied, 115 S. Ct. 189 (1994).
Rather, it appears that Rocha was commenting upon information
initially spoken of by the witnesses. In addition, the state's
legitimate law enforcement interest is not limited to apprehending
an alleged perpetrator. There is also a substantial interest in
ferreting out the basis and veracity of criminal allegations. See
Ramie v. City of Hedwig Village, 765 F.2d 490, 492-93 (5th Cir.
1985) ("[a]lthough in retrospect some question may be determined to
be irrelevant and not within the government's proper sphere of
concern, police officers must have the freedom at least to ask the
questions they believe will aid them in the investigation" and
recognizing that asking otherwise proper questions in an abusive
and harassing manner does not amount to invasion of privacy), cert.
denied, 475 U.S. 1062 (1986).
There is no invasion of privacy when the material disclosed
was already known to the recipient. Cinel, 15 F.3d at 1343. Law
enforcement must be allowed considerable latitude to explore the
veracity of a complainant, as well as the identity of the alleged
perpetrator, and to explore reasonable inferences raised by what
20 witnesses offer in an investigatory context. See Ramie, 765 F.2d
at 492-93. As measured by clearly established law, Cantu failed to
alleged violation of the constitutional right to privacy. See
Anderson, 107 S. Ct. at 3039 (relevant legal rule which must be
"clearly established" is identified with reference to the
particularized facts and circumstances of the case). It follows
that Rocha is entitled to summary judgment on the issue of
qualified immunity from suit on Cantu's § 1983 claim that he
invaded her privacy by making inappropriate remarks in the witness
interviews.
Cantu also asserted a § 1983 claim against Salazar based on
Rocha's objectionable remarks. Cantu argues that Salazar is liable
for Rocha's misconduct because he failed to properly train,
supervise or control Rocha's actions. Although supervisory
officials cannot be held liable under § 1983 on a theory of
respondeat superior, they may be liable if their own action or
inaction, including a failure to properly supervise, amounts to
gross negligence or deliberate indifference which is the proximate
cause of a constitutional violation. Bowen v. Watkins, 669 F.2d
979, 988 (5th Cir. 1982). Cantu attempts to demonstrate Salazar's
independent culpability with evidence that Salazar was aware of
other student complaints against Rocha. Our judgment that Cantu's
allegations against Rocha with regard to the witness interviews
failed to allege violation of clearly established law mandates the
conclusion that Cantu's derivative claim against Salazar must also
fail. Assuming, arguendo, that Salazar was grossly negligent or
21 deliberately indifferent, Cantu failed to allege any proximately
caused constitutional violation. Salazar is entitled to qualified
immunity on Cantu's claim that his supervision of Rocha was
negligent.
2. Extra-jurisdictional Character of the Investigation
Cantu also claims that the extra-jurisdictional character of
the investigation violated her right to privacy. Cantu cites no
authority for the proposition that there is a clearly established
constitutional right to be free from an investigation conducted in
the absence of jurisdiction. Cantu maintains, however, that she
did not authorize the investigation, presumably attempting to
invoke the "autonomy," or personal decision prong of the privacy
right. Privacy rights may well be implicated in a case involving
an investigation conducted without jurisdiction and over the
objection of a complainant whose veracity and credibility is not in
issue. That is not the case here. Both Chief Raul Garza of the
Edinburg police department and Chief Salazar were under the
impression that Cantu wanted the assault investigated. Cantu
voluntarily gave Chief Salazar the Planned Parenthood report as
well as information about the alleged assault. We conclude that
the investigation was not in violation of a clearly established
privacy right. Moreover, even if we were to assume, arguendo, that
Cantu had alleged violation of a clearly established right, Rocha
and Salazar would still be entitled to immunity because the
officers had an objectively reasonable basis for assuming
jurisdiction.
22 Salazar's initial conclusion that jurisdiction existed was
based on the fact that both of the individuals involved were
students and that the incident occurred at a university function,
in a hotel room leased with university funds. The reasonableness
of his conclusion is attested to by the fact that the Edinburg
Chief of Police, Raul Garza, also believed UT-PA would have
jurisdiction. Rocha and Salazar also offer Texas Education Code §
51.203(a) and (b) which provide that university police officers
have primary jurisdiction in all counties where property is "owned,
leased, rented, or otherwise under the control" of the university.
South Padre Island, where Cantu says she was assaulted, is
located in Cameron County. The UT-PA main campus is located in
Hidalgo County. UT-PA has a marine laboratory in Cameron County
and the University of Texas maintains a campus in Brownsville,
which is also in Cameron County. Within an officer's primary
jurisdiction, the officer is "vested with all the powers,
privileges, and immunities of peace officers," which include the
power to arrest individuals for violation of state law and the
power to enforce traffic laws. TEX. EDUC. CODE § 51.203(b) (Vernon
Supp. 1995). Cantu argues that the statute should be construed to
limit the peace officer's primary jurisdiction to university
property and offers letters in which UT-PA administrative officials
concluded subsequent to the Rocha investigation that the UT-PA
police department lacked jurisdiction. We need not decide that
issue of Texas law, as Officers Rocha and Salazar had an
objectively reasonable basis for proceeding with the investigation.
23 Cantu has no clearly established right to be free of an extra-
jurisdictional investigation into a sexual assault when that
investigation is launched by her own report of the relevant facts
to authorities. Cantu neither implicitly nor explicitly requested
that Salazar abstain from investigating. Nor has she demonstrated
any harm arising out of the extra-jurisdictional nature of the
investigation. Extra-jurisdictional investigations are not per se
violative of the constitutional guarantee of privacy. Finally,
Rocha and Salazar held an objectively reasonable belief that they
were operating within the university's primary jurisdiction.
Therefore, Officers Rocha and Salazar are entitled to qualified
immunity on this claim.
3. Pseudonym Procedure
Cantu alleges that Salazar and Rocha's failure to utilize the
pseudonym procedure specified in Texas Code of Criminal Procedure
article 57.02 for sexual assault investigations violated her
privacy right. Rocha and Salazar respond that the statute does not
require law enforcement to offer or utilize the procedure. Rather,
it provides a way for sexual assault victims to keep their name out
of the public record. Article 57.02 speaks to the use of a
pseudonym to protect a victim's identity on documentation and in
judicial proceedings and applies only after the victim completes a
specified form and returns that form to law enforcement. There is
no evidence in the record that Cantu completed that form or
otherwise requested anonymity. The statute does not purport to
control use of a victim's name when interviewing potential
24 witnesses and has no application in a case such as this one where
the objectionable disclosure was to witnesses who already knew both
the name of the victim and the details of the assault. See Cinel,
15 F.3d at 1343 (no invasion of privacy when confidential
information disclosed was already known to recipients of
information). Cantu's claim that Salazar and Rocha failed to use
the procedure does not allege a violation of a Cantu's privacy
right and Salazar and Rocha are entitled to immunity on that claim.
B. State Law Claims - Rocha
Under Texas law, "[g]overnment officials are entitled to
immunity from suit arising from performance of their (1)
discretionary duties in (2) good faith as long as they are (3)
acting within the scope of their authority." City of Lancaster v.
Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Rocha was performing a
discretionary function within the scope of his authority for
immunity purposes. See id. at 654 (citing Wyse v. Department of
Public Safety, 733 S.W.2d 224, 227 (Tex. App.-- Waco 1986, writ
ref'd n.r.e.) for the proposition that the investigatory duties of
police officers are discretionary) and id. at 658 (an official is
acting within the scope of granted authority for immunity purposes
when discharging duties generally assigned to that official, even
though the official may be acting unlawfully). 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.
at 656-57. Thus, Texas' law of qualified or official immunity is
substantially the same as federal immunity law. Id. at 656. There
25 is, however, one important difference. Summary judgment is not
appropriate, as it is in the federal system, simply on a showing
that the right alleged to have been violated was not clearly
established. Id. at 657 (good faith test for immunity from
nonconstitutional torts does not incorporate a threshold legal
question analogous to federal immunity law's "clearly established
law" requirement). Texas' test focuses solely on the objective
legal reasonableness of the officer's conduct. Id. at 656-57.
Accordingly, whether Rocha is entitled immunity on any of the state
law claims depends solely on whether his actions were objectively
reasonable.
Cantu's third amended petition alleges two state law claims
against Rocha, invasion of privacy and defamation.
1. Invasion of Privacy
Although Texas law makes several types of conduct actionable
as an invasion of privacy, see Moore v. Big Picture Co., 828 F.2d
270, 272 (5th Cir. 1987), Cantu's third amended complaint alleges
only that Rocha's remarks placed her in a false light before the
public. Texas has soundly rejected the false light tort as being
duplicative of existing causes of action which provide more
procedural safeguards. Cain v. Hearst Corp., 878 S.W.2d 577, 578
(Tex. 1994) ("[W]e have never embraced nor recognized . . . the
false light tort. We decline to do so today."). Cantu's brief
therefore attempts to turn her false light claim into one for
public disclosure of private matters, which is actionable when
publication would be highly offensive to a reasonable person and
26 there is no legitimate public concern meriting disclosure.
Industrial Foundation of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 682-83 (Tex. 1976), cert. denied, 430 U.S. 931
(1977). In such a case, the information disclosed must have been
confidential, in the sense that it was previously "secret" and that
disclosure would cause harm. Id. at 683. Rocha did not disclose
previously secret information to Galvan, Escobar or Solis. The
three witnesses were in fact in the process of disclosing the very
same information to Rocha. Rocha's comments, however crude,
summarized his impressions of the women's testimony. A reasonably
prudent officer could have believed that the remarks were
consistent with Cantu's rights and Rocha is entitled to state law
immunity from suit on Cantu's state law invasion of privacy claim.
2. Defamation
An oral statement published to a third person is slanderous
under Texas law when it is (1) defamatory, (2) false, (3) refers to
an ascertainable person and (4) is not protected by any privilege.
Reeves v. Western Co. of N. Am., 867 S.W.2d 385, 393 (Tex. App.--
San Antonio 1993, writ denied). Cantu claims that Rocha's comment
to the witnesses that "he was going to interview" Cantu and that
"if he felt she was lying to him he was going to arrest her" was
slanderous per se because it falsely and unambiguously imputed
criminal conduct to Cantu. See Reeves, 867 S.W.2d at 395-96
(statement that unambiguously and falsely imputes criminal conduct
to plaintiff is slanderous per se). Rocha's entitlement to immunity
from suit on Cantu's defamation claim depends on an analysis of
27 Rocha's objective good faith. Rocha's comment does not
unambiguously impute criminal conduct to Cantu. Reeves, 867 S.W.2d
at 396 (statement does not unambiguously impute criminal conduct to
plaintiff unless an ordinary person would reasonably assume that
the plaintiff was charged with a violation of criminal law).
Galvan and Escobar could not reasonably have concluded that Cantu
was then charged with a criminal act. Police officers must be
afforded a certain degree of latitude when conducting investigatory
interviews. Taken in context of the information disclosed in the
interview, a reasonably prudent officer might have proceeded along
the same lines. We conclude that Rocha's comment was made with a
"good faith" belief that it would further the investigation.
Therefore, Rocha is entitled to immunity from suit on Cantu's state
law defamation claim.
C. State Law Claims - Ethridge
Ethridge argues that, as a matter of law, Cantu has not
alleged acts that constitute the tort of intentional infliction of
emotional distress under Texas law, irrespective of whether his
acts were authorized by UT-PA. Ethridge essentially argues that
the district court's denial of qualified immunity on grounds that
the alleged conduct was not in the scope of his authority is in
error. The threshold question, which was not addressed, is
whether, under the facts as alleged, Ethridge committed such a tort
at all. This question is a purely legal one, and we consequently
have appellate jurisdiction to consider it in the context of a
qualified immunity appeal under any reasonable reading of Johnson.
28 If Cantu has wholly failed to state a claim for intentional
infliction of emotional distress, Ethridge is necessarily entitled
to official immunity under state law, and the court need not decide
the second question under Texas official immunity law -- whether
he, as a government official, is "entitled to immunity from suit
arising from performance of [his] (1) discretionary duties in (2)
good faith as long as [he was] (3) acting within the scope of [his]
authority." City of Lancaster, 883 S.W.2d at 653.
It is clear to us that Cantu's allegations against Ethridge do
not amount to a tort under Texas law, and, consequently, we hold
that, as a matter of law, Ethridge is entitled to qualified
immunity. To prevail on a claim of intentional infliction of
emotional distress under Texas law, the plaintiff must establish
the following four elements: (1) that the defendant acted
intentionally or recklessly; (2) that the conduct was `extreme and
outrageous'; (3) that the actions of the defendant caused the
plaintiff emotional distress; and (4) that the emotional distress
suffered by the plaintiff was severe. Dean v. Ford Motor Credit
Co., 885 F.2d 300, 306 (quoting Tidelands Auto. Club v. Walters,
699 S.W.2d 939 (Tex.App.--Beaumont 1985, writ ref'd n.r.e.)).
Liability [for outrageous conduct] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . . Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, "Outrageous."
29 Dean, 885 F.2d at 306 (citing Restatement (Second) Torts § 46,
Comment d (1965)).
Cantu's proffered evidence is that Ethridge embarked on a
course of conduct intended to intimidate her, which included the
following acts: (1) following her in the hallways; (2) obstructing
her passage from a water fountain; (3) showing up in a classroom
and positioning himself where Cantu usually sat so that she could
not avoid encountering him and (4) repeatedly going in and out of
a room where she was taking a make-up exam, which affected her
performance. Assuming its veracity, and that the jury fully
believed every word of it, this evidence simply could not, as a
matter of law, be construed by reasonable jurors as proof of
conduct that is "beyond all possible bounds of decency, . . .
atrocious, and utterly intolerable in a civilized community
. . . ." We therefore hold that Ethridge was entitled to state
official immunity from Cantu's state law claim of intentional
infliction of emotional distress claim.
CONCLUSION
Defendants Rocha and Salazar are entitled to qualified
immunity from Cantu's federal law claims because Cantu failed to
alleged violation of a clearly established federal right. Rocha is
also entitled to qualified immunity from Cantu's state law claims
for invasion of privacy and defamation because Rocha acted in good
faith and within the scope of his authority, as defined by the
Texas Supreme Court in City of Lancaster. Ethridge is also
entitled to qualified immunity from Cantu's state law claim of
30 intentional infliction of emotional distress, because Cantu has
failed to state a cognizable claim. We lack appellate jurisdiction
to consider Rocha, Salazar and Ethridge's appeal from denial of
summary judgment on grounds other than qualified immunity (appeal
number 94-60577).
Accordingly, the appeal under case number 94-60577, and
defendant Ethridge's appeal from the denial of summary judgment, is
DISMISSED. The district court's order in 94-60380 is REVERSED and
judgment is RENDERED in favor of defendants Rocha, Salazar and
Ethridge, dismissing the complaint against them on grounds that
each of them is entitled to qualified immunity from suit on § 1983
claims and on the state law claims for invasion of privacy,
defamation, and intentional infliction of emotional distress.