UNITED STATES COURT OF APPEALS


                         For the Fifth Circuit



                              No. 95-50519
                            Summary Calendar



                            THOMAS M DUPONT


                                                      Plaintiff-Appellee


                                   VERSUS


    ROBERT LINDEN, Individually and in his official capacity
        as Chief of Police of the City of Leander, Texas


                                                     Defendant-Appellant



          Appeal from the United States District Court
                For the Western District of Texas
                          (A-94-CV-828)
                        February 27, 1996


Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1
     Thomas M. Dupont sued Leander, Texas, Chief of Police Bolton

Linden, individually and in his official capacity, for false arrest

and unreasonable search and seizure in violation of the Fourth and

Fifteenth Amendments and pendant state law claims of malicious

prosecution    and   intentional   infliction   of   emotional   distress.

     1
      Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Linden       moved    for   summary   judgment     claiming    that:     (1)   as    an

individual,          he   was   entitled    to   qualified    immunity    from      the

constitutional claims and official immunity from the state-law

claims; and, (2) the claims against Linden in his official capacity

were actually claims against the City of Leander (City).                            The

magistrate judge denied Linden’s motion without a hearing and

without supplying reasons.2                We reverse and remand in part and

dismiss in part.

Denial of Qualified Immunity

     28 U.S.C. § 1291, grants jurisdiction to review denial of a

claim of qualified immunity only if there are no genuine issues of

material fact concerning the immunity claim.                 While we do not here

recite the facts, the record is clear that no material fact

relative to immunity is in issue.

     Since the violation of a clearly established constitutional

right is alleged, we must decide whether Linden’s conduct was

objectively reasonable, because “even if an official’s conduct

violates a constitutional right, he is entitled to qualified

immunity if the conduct was objectively reasonable.”                      Rankin v.

Klevenhagen, 

, 105 (5th Cir. 1993) (internal punctuation

and citations omitted).

     A claim for wrongful arrest arises under the Fourth Amendment,


         2
       This Court has vacated and remanded for written findings
where it determined that it could not effectively review the
district court’s summary judgment ruling without the benefit of the
district court’s reasoning. See Farrar v. Cain, 

, 87
(5th Cir. 1981). Remand appears unnecessary in this case only
because the parties do not dispute the material facts.

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but not the Fourteenth.        See Eugene v. Alief Independent School

Dist., 

, 1303 (5th Cir. 1995).          “There is no cause of

action for false arrest under § 1983 unless the arresting officer

lacked probable cause.”        Brown v. Bryan County, Okla., 

, 1180 (5th Cir.), petition for cert. filed, (Jan. 5, 1996)

(No. 95-1100); Fields v. City of South Houston, Tex., 

, 1189 (5th Cir. 1991).         An evaluation of probable cause must

consider   “the    totality    of   the    circumstances   surrounding    the

arrest.”   

.

     Dupont’s argument that Linden was not objectively reasonable

because he swore out the complaint based on statements that the

victim made to others lacks merit.          Linden properly relied on the

collective knowledge of all of the police officers involved in the

investigation.     Charles v. Smith, 

, 724 (5th Cir.),

cert. denied, 

(1990).            A defendant is “entitled to

qualified immunity [from a claim of false arrest] unless, on an

objective basis, it is obvious that no reasonably competent officer

would have concluded that a warrant should issue.”              Pfannstiel v.

City of Marion, 

, 1183 (5th Cir. 1990) (internal

quotations   and    citation    omitted).       “Only   where    the   warrant

application is so lacking in indicia of probable cause as to render

official belief in its existence unreasonable will the shield of

immunity be lost.”     Malley v. Briggs, 

, 344-45 (1986)

(internal citation omitted).        Such is not the case here.

     Allegations of malicious prosecution in a criminal case are

actionable under § 1983.       Sanders v. English, 

, 1162-


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64 (5th Cir. 1992).   “The essence of a malicious prosecution claim

is groundless prosecution.”    Brummett v. Camble, 

,

1183 (5th Cir. 1991), cert. denied 

(1992).    A police

officer can be liable for malicious prosecution if he “maliciously

tender[s] false information to the prosecutor which leads him to

believe probable cause exists where there is none.”     

(quotation and citation omitted).

     The facts clearly show that Linden’s conduct was objectively

reasonable and that there is no evidence that he acted maliciously;

thus, the district court erred as a matter of law when it denied

his motion for qualified immunity.     

.

Official-Capacity Constitutional Claims

     The defense of qualified immunity does not apply to the

constitutional claims against Linden in his capacity as Chief of

Police because those claims are actually claims against the City.

Kentucky v. Graham, 

, 166-67 (1985); 

n.3.    The denial of summary judgment on those claims is

therefore not a final appealable order, and this Court lacks

jurisdiction.   Swint v. Chambers County Com’n, 

,

1205 (1995); see 21 U.S.C. § 1291.

Individual-Capacity State Law Claims

     Linden asserts the state-law defense of official immunity

against the state-law claims of malicious prosecution and false

arrest made against him as an individual.       He argues that the

denial of immunity under this theory is immediately appealable

under § 1291.


                                 4
       “Appealability under § 1291 . . . is clearly a matter of

federal law; state procedural law is not directly controlling.”

Tamez v. City of San Marcos, 

, 125 (5th Cir. 1995)

(quotation and citation omitted).                However, we look to state

procedural rules “for what they reveal about the state’s view on

the substantive issue of whether qualified immunity is an immunity

form suit or merely a defense to liability.”                 

citation omitted).        Under Texas law, a state officer sued in his

individual capacity is entitled to an immediate appeal of the

denial of his motion for summary judgment based on the defense of

official immunity.            See Gallia v. Schreiber, 

, 867

(Tex. App. 1995); Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5)

(West Supp. 1996).            Section 51.014(5) is not merely a defense to

liability; it confers immunity from suit. Boozier v. Hambrick, 

, 596 (Tex. App. 1993).

       To   be   entitled      to   this   protection    under   Texas    law,    the

defendant must establish as a matter of law (1) that his action was

discretionary, and thus, quasi-judicial; and (2) that he acted in

good faith within his authority as a quasi-judicial employee.

.

       To prevail on a claim of malicious prosecution under Texas

law, the plaintiff must prove, inter alia, that the defendant

lacked probable cause to prosecute him.                 Coniglio v. Snyder, 

, 744 (Tex. App. 1988); see also Martin v. Thomas, 

,      455   (5th    Cir.   1992).    To   prevail     on   a   claim   of

intentional infliction of emotional distress under Texas law, the


                                           5
plaintiff   must     prove,    inter   alia,   that    the    defendant   acted

intentionally or recklessly and that his conduct was extreme and

outrageous.    Turner v. Roadway Express, Inc., 

, 227

(Tex. App. 1995).

     Because the material facts are not disputed, the denial of

Linden’s    claims    of    official     immunity     would   be   immediately

appealable in a state court.           We, therefore, consider them.        The

undisputed facts show that the district court erred by denying

summary judgment on this issue; Linden is entitled to official

immunity from Dupont’s state-law claims because he acted in good

faith in the performance of a discretionary function. 

.

Official-Capacity State Law Claims

     Dupont concedes that he is not entitled to maintain state-law

claims against Linden in his official capacity.                 This issue is

moot.

     We    reverse    the     denial   of   summary    judgment    on   federal

constitutional and state-law claims against Linden as an individual

and remand with instructions to grant his motion for summary

judgment as to those claims; dismiss appeal of denial of summary

judgment on constitutional claims against Linden in his official

capacity for lack of jurisdiction; and dismiss appeal of denial of

summary judgment on state law claims against Linden in his official

capacity as moot.

     REVERSED and REMANDED in part and appeal DISMISSED in part.




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