Cantu v. Rocha

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.

31