Keko v. Hingle ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30396
Summary Calendar
ANTHONY G. KEKO,
Plaintiff-Appellee,
versus
I. F. HINGLE ET AL.,
Defendants,
SADIE WILLIAMS GUEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-2189-C
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January 12, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant Sadie Williams Guey appeals the district court’s
denial of her Fed. R. Civ. P. 12(b)(6) motion to dismiss the
complaint on the ground of qualified immunity. We have
jurisdiction to review the denial under the collateral-order
doctrine. See Morin v. Caire, 77 F.3d 116, 119 (5th Cir. 1996).
Review is de novo, and is limited to the allegations of the
plaintiff’s complaint. Morin, 77 F.3d at 120.
Based on the allegations in the complaint, the district
*
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this opinion should not be published and is not precedent except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.
No. 99-30396
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court did not err in concluding that Guey, an investigator for
the Plaquemines Parish Sheriff’s Office, is not entitled to
absolute or qualified immunity from liability in connection with
the investigation of plaintiff for the murder of plaintiff’s
wife. Guey does not enjoy absolute immunity for her
investigatory activities. See Kerr v. Lyford, 171 F.3d 330, 338
(5th Cir. 1999). To determine whether Guey is entitled to
qualified immunity, this court follows a two-step process.
Morin, 77 F.3d at 120 (footnotes omitted). First, we examine the
complaint to determine whether plaintiff has alleged that Guey
violated his clearly established constitutional rights. If so,
we consider whether Guey’s conduct was reasonable. Id.Taking the allegations of the complaint as true, Keko has
alleged an objectively unreasonable violation of his clearly
established Fourth Amendment rights sufficient to withstand a
motion to dismiss. See Hale v. Fish, 899 F.2d 390, 402 (5th Cir.
1990). Further, Keko has sufficiently stated a cause of action
for malicious prosecution under 42 U.S.C. § 1983 stemming from
the violation of his Fourth Amendment rights. See, e.g., Kerr v.
Lyford, 171 F.3d 330, 339 (5th Cir. 1999). Because the
allegations are sufficient to assert a constitutional violation
and plaintiff has alleged that defendants acted in concert and
deliberately in violating his rights, the allegations are
sufficient to state a cause of action for conspiracy under 42
U.S.C. § 1985. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th
Cir. 1994).
Because the district court did not err in concluding that
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plaintiff has alleged a viable federal claim, it follows that it
was not error for the district court to deny Guey’s motion to
dismiss the state-law claims for lack of a viable federal claim.
Because the allegations of the complaint are sufficient to state
a claim under § 1983, the district court did not abuse its
discretion by not requiring plaintiff to file a reply to Guey’s
qualified-immunity defense. See Morin, 77 F.3d at 121.
Guey’s argument that the plaintiff’s claims are time-barred
is not reviewable in this appeal because that issue is not
inextricably intertwined or necessary to resolution of the
qualified-immunity issue. See Cantu v. Rocha, 77 F.3d 795, 805
(5th Cir. 1996).
AFFIRMED.