Pelayo v. US Border Patrol, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 15, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40420
Summary Calendar
OLIVIA PELAYO, For Herself and as
Representative of the Estate of Javier Pelayo,
Plaintiff-Appellee,
versus
U.S. BORDER PATROL AGENT # 1; ET AL,
Defendants,
PAUL LABADIE, U.S. Border Patrol Agent, in his individual
capacity; CHRISTOPHER J. BRAND, U.S. Border Patrol Agent,
in his individual capacity; MATTHEW D. STONE, U.S. Border
Patrol Agent, in his individual capacity; LUCILA C. GARZA,
U.S. Immigration Inspector, in her individual capacity,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(M-00-CV-140)
(M-01-CV-35)
--------------------
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Border Patrol Agents Labadie, Brand, and Stone, and
Immigration Inspector Garza appeal from the denial of their FED. R.

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1 Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2
CIV. P. 12(b)(6) motion to dismiss plaintiff's Bivens1 suit based on
qualified immunity. Plaintiff brought suit following the death of
her son, Javier Pelayo, who allegedly had a mental disability and
died after being wrongfully processed and deported as an illegal
alien by the defendants. The defendants argue that plaintiff
failed to allege the violation of a constitutional right because
Brand, Stone, and Garza were not personally involved in any alleged
deprivation. They further argue that Labadie was entitled to
qualified immunity because his actions were objectively reasonable.
A Rule 12(b)(6) motion may be granted "only if it appears that
no relief could be granted under any set of facts that could be
proven consistent with the allegations." Jackson v. City
of Beaumont Police Dep't, 958 F.2d 616, 618 (5th Cir. 1992).
We review de novo a district court's ruling on a Rule 12(b)(6)
motion. Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir. 2000).
Qualified immunity shields a government official performing
discretionary functions from civil liability if his conduct
violates no clearly established statutory or constitutional right
of which a reasonable person would have known. Evans v. Ball, 168
F.3d 856, 860 (5th Cir. 1999); see also Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). We first ask whether the plaintiff has
alleged the violation of a constitutional right at all. Evans, 168
F.3d at 860. If so, we next consider whether the constitutional

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3
right was clearly established and whether the defendant's conduct
was objectively reasonable. Id.
Taking the plaintiff's alleged facts as true, Garza merely
received Javier Pelayo from Customs Inspector Cynthia Sandoval and
handed him over to Brand and Labadie without conducting any status
or immigration check and without speaking to Javier. These facts
do not allege a violation of a constitutional right. At most,
plaintiff has alleged that Garza may have been negligent for
failing to conduct a status check, but negligence does not
constitute a constitutional violation. See County of Sacramento v.
Lewis, 523 U.S. 833, 849 (1998).
Brand allegedly received Javier along with Labadie and
escorted four Mexican nationals to the bridge crossing into Mexico.
Brand is not alleged to have interviewed Javier. Stone is alleged
merely to have been present in the Secondary Inspection area after
Javier was processed by Labadie. These facts do not allege
personal involvement by these defendants in the violation of a
constitutional right. See Thompson v. Steele, 709 F.2d 381, 382
(5th Cir. 1983); see also Creamer v. Porter, 754 F.2d 1311, 1316
(5th Cir. 1985).
Plaintiff argues for the first time that Brand and Stone may
have been responsible for inaccurate information on immigration
forms completed by Labadie. We will not consider a claim raised
for the first time on appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).

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4
Labadie interviewed Javier alone in the Secondary Inspection
area only a short time after Sandoval observed Javier as very
disoriented, unable to answer questions, and mumbling noise.
Plaintiff has alleged that Javier lacked the capacity to choose
voluntary departure and waive his rights and that his lack of
capacity should have been evident to Labadie. At the least,
plaintiff has sufficiently alleged that Labadie violated Javier’s
due process rights. See Nose v. Attorney General of the United
States, 993 F.2d 75, 79 (5th Cir. 1993)(waiver of right to
a hearing before an immigration judge must be knowing and
voluntary); 8 U.S.C. §§ 1229a, 1229c(a)(1).
The defendants argue, again for the first time on appeal, that
"other evidence" in the form of deposition excerpts undermines the
due process claim. Because the case was decided on a motion to
dismiss and this evidence was not before the district court, we do
not consider it. See United States v. Flores, 887 F.2d 543, 546
(5th Cir. 1989); see also Strain v. Harrelson Rubber Co., 742 F.2d
888, 889 n.2 (5th Cir. 1984)(appellate court "do[es] not sit to
receive new evidence").
We AFFIRM the district court's denial of the motion to dismiss
Labadie but VACATE the judgment with respect to Garza, Brand, and
Stone, and REMAND for further proceedings consistent with this
decision.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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5

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