IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-30282 Summary Calendar _____________________

ADAM MORALES, SR., Individually and on behalf of his minor children Paula Morales, Jacob Morales and Trae Morales, ET AL.,

Plaintiffs-Appellees,

versus

STATE OF LOUISIANA, ET AL.,

Defendants,

ANTHONY FALTERMAN, Sheriff and/or District Attorney of the Parish of Assumption,

Defendant-Appellant,

AUDUBON INSURANCE COMPANY,

Movant.

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Appeal from the United States District Court for the Eastern District of Louisiana (94-1194) _________________________________________________________________

November 28, 1995

Before JOHNSON, BARKSDALE and PARKER, Circuit Judges.

JOHNSON, Circuit Judge:1

Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to this Rule, the Court has determined that this opinion Plaintiff Adam Morales (“Morales”) brought this civil rights

suit under

against Anthony Falterman, the former

sheriff and present district attorney of Assumption Parish in

Louisiana (“Falterman”). The district court denied Falterman’s

motion to dismiss under FED. R. CIV. P. 12(b)(6). For the reasons

set forth below, we vacate that order denying dismissal and

remand for conclusions of law.

I. Facts and Procedural History

This case arises out of Falterman’s prosecution of Morales

for two charges of rape against two young girls, Julie Morales and

Sabina Coupel. Morales was acquitted of the charge of raping Julie

Morales on March 23, 1993. The charge that he raped Sabrina Coupel

is still pending in Louisiana state court.

In Morales’ civil rights complaint, he alleges primarily that

Falterman and others conspired to prosecute him despite the fact

that they knew he was innocent. Falterman filed a motion to

dismiss on the grounds of absolute and/or qualified prosecutorial

immunity, failure to state a conspiracy claim, and limitations.

Additionally Falterman requested dismissal of all pendent state

claims without prejudice. This case was originally assigned to

District Judge Heebe who granted in part Falterman’s motion to

dismiss. As to the claims remaining after the partial dismissal,

Judge Heebe gave Morales fourteen days in which to amend his

complaint so as to plead with specificity the facts giving rise to

his conspiracy claims. Judge Heebe provided extensive findings and

should not be published.

2 conclusions along with the order of partial dismissal. Morales

then amended his complaint by alleging several additional

paragraphs of facts with which he apparently intended to support

his conspiracy theories.

Falterman then filed a second FED. R. CIV. P. 12(b)(6) motion

to dismiss based on qualified and/or absolute immunity, failure to

state a legally cognizable claim, and limitations. Falterman again

requested that all of Morales’ pendent state law claims be

dismissed without prejudice.

At this point in the proceedings, the case was reassigned to

Judge Sarah Vance and then again to Judge Okla Jones, II. Judge

Jones denied Falterman’s motion to dismiss the claims against him

alleged in Morales’ amended complaint without setting forth any

written rationale. Additionally, the minute entry does not state

whether Judge Jones stated the reasons for the denial from the

bench. Falterman further states in his brief that his motion to

dismiss was denied “without reasons.” Blue brief at 5. Falterman

now appeals the denial of his motion to dismiss based on his claims

of absolute and/or qualified immunity.

II. Discussion

Before deciding whether the district judge properly denied the

motion to dismiss based upon immunity from suit, we must examine

the basis for our jurisdiction. Tamez v. City of San Marcos,

(5th Cir. 1995)(reminding that this Court must

examine the basis for its own subject matter jurisdiction whenever

necessary). Generally, this Court does not have jurisdiction over

3 interlocutory pretrial orders because such pretrial orders are not

“final decisions” for the purposes of

. See

However, in Mitchell v. Forsyth, the Supreme Court held that the

denial of a substantial claim of absolute immunity is an order

appealable before final judgment, for the essence of absolute

immunity is its possessor’s entitlement not to have to answer for

his or her conduct in a civil damages action.

(1985). The denial of a claim of qualified immunity is similarly

appealable, but only on the essentially legal question of whether

the conduct of which the plaintiff complains violates clearly

established law.

At 526. A defendant entitled to invoke a

qualified immunity defense may not appeal a district court’s

pretrial order insofar as that order determines whether or not the

pretrial record sets forth a genuine issue of fact for trial. See

Johnson v. Jones,

(1995); Tamez,

.

In Johnson, the Supreme Court noted that if the district court

has denied a summary judgment without indicating its reasons for

doing so, the court of appeals may be forced to undertake a

cumbersome review of the record to determine what facts the

district court may have relied on in its denial. Johnson,

. This Court has held that where effective review of

the district court’s grant of summary judgment to the defendants is

not feasible without the benefit of the district court’s reasoning,

that such a grant of summary judgment could be vacated and the case

remanded to the district court for written. See, i.e., Farrar v.

4 Cain,

(5th Cir. 1981). In Farrar, for example,

this Court vacated a summary judgment and remanded the case for

written findings because the district court’s summary ruling was

most likely predicated on one or more of the theories of immunity

advanced by the defendants.

Like in Farrar, the order in the present case denying the

defendant’s motion to dismiss2 was most likely grounded on one or

more theories of immunity advanced by Falterman. Without written

findings this Court does not have benefit of the district court’s

reasoning in order to make the crucial jurisdictional determination

mandated by the Supreme Court in Johnson. A remand of the cause

for written findings and conclusions will facilitate review of the

district court’s ruling since the denial of Falterman’s motion to

dismiss on any grounds other than certain types of immunity is not

immediately appealable of right.3

III. Conclusion

This Court is unable to evaluate its ability to hear this

denial of immunity appeal without further direction as to the

2 The fact that this is an appeal of a denial of a Rule 12(b)(6) motion to dismiss does not affect this Court’s action. This Court is faced with the same jurisdictional dilemma as if this were a denial of summary judgment. The existence of this dilemma is set forth in detail in Footnote Number 3. 3 If, for example, the district court denied Falterman’s Rule 12(b)(6) motion on the ground that fact issues existed for trial precluding a pretrial dismissal as to Falterman’s qualified immunity on non-prosecutorially related conduct, this Court would not have jurisdiction under the Johnson analysis. However, if the denial was based on an erroneous belief by the district court that as a prosecutor Falterman was not entitled to absolute immunity in exercising his prosecutorial discretion, Falterman would, of course, be entitled to immediate review.

5 precise basis for that denial. Thus, the district court’s order

denying Falterman’s motion to dismiss is hereby vacated and this

case is remanded for written legal findings relative to Falterman’s

immunity defenses.

VACATED AND REMANDED.

6