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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 93-7196
____________________
LARRY WAYNE FOSTER, ET AL.,
Plaintiffs-Appellees,
VERSUS
CITY OF LAKE JACKSON, ET AL.,
Defendants,
A.A. MCCLAIN, ETC., WILLIAM YENNE, ETC.,
P.C. MILLER, ETC., MATTHEW HOUSTON, ETC.,
and JOHN DEWEY, ETC.,
Defendants/Appellants.
_______________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
______________________________________________________
(July 27, 1994)
BEFORE WISDOM and BARKSDALE, Circuit Judges, and HARMON, District
Judge.1
RHESA HAWKINS BARKSDALE, Circuit Judge:
The dispositive issue for this appeal is qualified immunity
against a claim of denial of access to the courts by concealing and
suppressing evidence during discovery. And, for purposes of this
appeal, that issue centers on whether the claimed constitutional
right was clearly established at the time of its alleged violation.
Claiming qualified immunity, among other things, officials of the
1
District Judge of the Southern District of Texas, sitting by
designation.

City of Lake Jackson, Texas, press this interlocutory appeal from
the denial of their motion to dismiss. We REVERSE.
I.
Larry and Pamela Foster sued the City in state court in 1985,
claiming that their son's death in an automobile accident was
caused by the City's failure to maintain a traffic light. After
discovery, the Fosters and the City reached a settlement, and the
claims against the City were dismissed.2
The Fosters later filed this § 1983 action against the City
and several of its officials.3 They alleged that, in the state
suit, the defendants conspired to deny them access to the courts by
concealing and suppressing evidence during discovery, causing them
to settle for less than they might have had they obtained the
evidence in question.4
2
In June 1988, the Fosters signed a release acquitting the
City and city officials of liability for the accident; the court
granted their motion to dismiss in December 1990. It is unclear
when the state suit discovery took place. The city officials
assert that the Fosters settled that suit in 1986; and the
district court used that year as its benchmark for determining
whether the right at issue was clearly established. For our
purposes, however, we must consider whether it was clearly
established in the period 1985 to 1988. We do so because this
appeal is from the denial of a motion to dismiss, see Fed. R.
Civ. P. 12(b)(6). Accordingly, we must take as true the well
pleaded allegations in the complaint. See infra. With regard to
the timing of the challenged conduct, the complaint alleges only
that it occurred from 1985-1988.
3
The city officials, and their positions at the time of the
challenged conduct, are: A.A. MacLean (City Manager), William
Yenne (Assistant City Manager), P.C. Miller (Chief of Police),
Matthew Houston (City Engineer), and John Dewey (City Attorney).
4
The Fosters alleged that the city officials intentionally
failed to respond to interrogatories concerning prior complaints
about the traffic light; removed or destroyed the police
2

The city officials moved, inter alia, to dismiss, pursuant to
Fed. R. Civ. P. 12(b)(6). They asserted that the Fosters failed to
state a violation of a constitutional right, and that, in any
event, the action was barred by absolute witness immunity and
qualified immunity. The district court held that a claim had been
stated, and ruled, inter alia, against the absolute witness
immunity defense, Foster v. City of Lake Jackson, 813 F. Supp.
1262, 1263 (S.D. Tex. 1993); later, against qualified immunity.5
The separate appeals from those orders have been consolidated.6
dispatcher's log records in which the complaints were recorded;
withheld the logs despite a document request; gave false
deposition testimony regarding their knowledge of the
malfunction; and induced police officers to remain silent about
their knowledge of it.
5
In denying qualified immunity, the district court cited the
Supreme Court's recent decision in Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, ___ U.S. ___, 113 S.
Ct. 1160, 1162 (1993), which held the heightened pleading
standard for civil rights actions inapplicable for those against
municipalities. See Elliott v. Perez, 751 F.2d 1472 (5th Cir.
1985) (establishing heightened pleading standard; abrogated as to
municipalities by Leatherman). The district court noted that
Leatherman had not addressed whether Elliott continued to apply
to claims against individuals. Accordingly, it felt bound to
apply the Elliott standard to the allegations against the city
officials; however, it ordered limited discovery. Because we
hold that the officials are entitled to qualified immunity, the
heightened pleading issue is moot.
6
In the first appeal, the city officials also challenged the
district court's order that they submit to discovery before
adjudication of qualified immunity. This issue is moot, because,
after the appeal from the discovery order was filed, the district
court denied the defense.
The city officials contend that the district court was
without jurisdiction to deny qualified immunity, asserting that
the earlier appeal from both the denial of witness immunity and
the discovery order divested it of jurisdiction. This contention
overlooks the fact that the discovery order, in essence, denied
qualified immunity. See, e.g., Jacques v. Procunier, 801 F.2d
3

II.
Our qualified immunity holding moots the other issues. When
the issue is purely one of law, denial of such immunity is
appealable immediately under 28 U.S.C. § 1291, notwithstanding the
absence of a final judgment, because "immunity" in this sense
"means immunity from suit, not simply immunity from liability."
Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 & n.3
(5th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511 (1985);
Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir. 1988)); see
also Siegert v. Gilley, ___ U.S. ___, 111 S. Ct. 1789, 1793 (1991).
But, where there are fact issues, the denial is not appealable
immediately. E.g., Lampkin v. City of Nacogdoches, 7 F.3d 430, 436
(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1400
(1994). Here, no facts are disputed; because we review the denial
of a Rule 12(b)(6) motion, we take as true the well pleaded
allegations in the complaint. E.g., Jackson v. City of Beaumont,
958 F.2d at 618; Collins v. City of Harker Heights, 916 F.2d 284,
286 & n.2 (5th Cir. 1990), aff'd, ___ U.S. ___, 112 S. Ct. 1061
(1992). We review the denial de novo. Jackson v. City of
Beaumont, 958 F.2d at 618.
At bottom, qualified immunity "reconcile[s] two competing
interests. One interest is the compensation of persons whose
federally protected rights have been violated. Opposing this is
the fear that personal liability will inhibit public officials in
789, 791 (5th Cir. 1980) (purposes of qualified immunity include
shielding officials from "burdens of broad-reaching discovery").
4

the discharge of their duties." Johnston v. City of Houston, 14
F.3d 1056, 1059 (1994); accord, Spann v. Rainey, 987 F.2d 1110,
1114 (5th Cir. 1993). In balancing these interests, it is
inevitable that some improper actions are shielded.
Abrogation of qualified immunity is properly the exception,
not the rule. See McGregor v. Louisiana State Univ. Bd. of
Supervisors, 3 F.3d 850, 862 (5th Cir. 1993), cert. denied, ___
U.S. ___, 114 S. Ct. 1103 (1994). The burden of negating the
defense lies with the plaintiffs. Chrissy F. by Medley v.
Mississippi Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir.
1991) (quoting Mitchell, 472 U.S. at 526); appeal after remand, 995
F.2d 595 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct.
1336 (1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
In assessing a claim of qualified immunity, we
engage in a bifurcated analysis. First, we
determine whether the plaintiff has allege[d] the
violation of a clearly established constitutional
right. If so, we then decide if the defendant's
conduct was objectively reasonable....
Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993) (citations
and internal quotation marks omitted; brackets in original).
Accordingly, "`[u]nless the plaintiff's allegations state a claim
of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement
of discovery.'" Chrissy F., 925 F.2d at 848 (quoting Mitchell, 472
U.S. at 526) (citations omitted).
Therefore, our first task is to "review the specific parts of
the complaint to determine whether [plaintiffs] charge conduct
5

violating clearly established federal rights". Id. at 851 & n.33
(citing Stem v. Ahearn, 908 F.2d 1, 5-6 (5th Cir. 1990), cert.
denied, 498 U.S. 1069 (1991)); accord, Lampkin, 7 F.3d at 434;
Enlow v. Tishomingo County, 962 F.2d 501, 508 (5th Cir. 1992). A
right is "clearly established" only when its contours are
sufficiently clear that a reasonable official would have realized
that his conduct violated that right, not simply that the conduct
was otherwise improper. See, e.g., Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 454-55 (5th Cir. 1994) (en banc) (citing
Anderson v. Creighton, 483 U.S. 635, 639 (1987)); Boddie v. City of
Columbus, 989 F.2d 745, 748 (5th Cir. 1993); Click v. Copeland, 970
F.2d 106, 109 (5th Cir. 1992).
An official's conduct is not protected by qualified immunity
if, in light of preexisting law, it was apparent that the conduct,
when undertaken, constituted a violation of the right at issue.
This is true even if the "very action in question" had not then
been held to be a constitutional violation. See Anderson, 483 U.S.
at 640; Spann v. Rainey, 987 F.2d at 1114-15 (reasonableness of
official conduct judged in light of law existing at time of
violation). "Put another way, officials must observe `general,
well-developed legal principles.'" Doe v. Taylor ISD, 15 F.3d at
455 (quoting Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303,
305 (5th Cir. 1987)).
The constitutional right in issue is access to the courts.
The Fosters contend that this right protects against the discovery
abuses claimed here, because otherwise, litigants' access to the
6

courts is not "adequate, effective and meaningful". The city
officials counter that the right does not encompass a right to
proceed free of discovery abuses by a governmental entity involved
in a civil lawsuit in state court, but protects only the right to
institute the action. In addition, they assert that, even if a
more broadly-based right exists now, it was not clearly established
in 1985-88, the time of the alleged conduct. See note 2, supra.
We agree with this latter contention.
The right of access, in its "most obvious and formal
manifestation ... protects one's physical access" to the courts.
Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir. 1989), cert.
denied, 496 U.S. 924 (1990). In this manifestation, our court has
found the right to be implicated where, for example, prisoners are
denied the right to file a lawsuit, or are denied access to legal
materials, or when prison officials fail to forward legal
documents. Id. at 811-12; Brewer v. Wilkinson, 3 F.3d 816, 820
(5th Cir. 1993) (collecting cases), cert. denied, ___ U.S. ___, 114
S. Ct. 1081 (1994). Similarly, the right may be violated if an
indigent litigant is denied a refund or waiver of filing fees. See
Johnson v. Atkins, 999 F.2d 99 (5th Cir. 1993).
Here, however, the claimed violation is not an impediment to
the ability to file suit. Instead, as framed by the district
court, plaintiffs allege that

public officials "wrongfully and intentionally
conceal[ed] information crucial to a person's
ability to obtain redress though the courts, and
d[id] so for the purpose of frustrating that right,
and that concealment and the delay engendered by it
substantially reduce[d] the likelihood of one's
7

obtaining the relief to which one [wa]s otherwise
entitled...."
Foster, 813 F. Supp. at 1263 (quoting Crowder, 884 F.2d at 812)
(district court's brackets). As noted, plaintiffs contend that
defendants' actions have violated their right of "`adequate,
effective, and meaningful'" access. Crowder, 884 F.2d at 811,
quoting Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983).
Crowder -- which involved a challenge to defendants' taking
plaintiffs' property outside the jurisdiction in an in rem action
-- did not involve a "cover-up" by officials. Instead, like the
prisoners' rights cases on which it relied, it involved conduct by
an official that effectively could have prevented plaintiffs from
instituting their action. That is, the Crowders alleged that by
removing their property from Texas, the defendants "destroyed or
impaired the rightful jurisdiction of Texas courts over the seized
items, thus interfering with [the Crowders'] ability to litigate
ownership of the property in Texas". Crowder, 884 F.2d at 813
(internal citations and quotation marks omitted) (brackets in
original).
Similarly, Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983)
(cited in Crowder, 884 F.2d at 812), which involved a cover-up by
state prosecutors, is distinguishable. Ryland, like Crowder,
concerned an officially-created impediment to the ability to file
an action, rather than, as here, an alleged post-filing violation.
See Ryland, 708 F.2d at 973.
As stated in Crowder, the right of access is "a facilitative
right ... designed to ensure that a citizen has the opportunity to
8

exercise his or her legal rights to present a cognizable claim to
the appropriate court and, if that claim is meritorious, to have
the court make a determination to that effect and order the
appropriate relief." 884 F.2d at 814. Thus, our court has
characterized the right of access (even "adequate, effective, and
meaningful access" as contemplated by Crowder, 884 F.2d at 811,
rather than only a physical right of access) to be implicated where
the ability to file suit was delayed, or blocked altogether. For
example, in Ryland, our court found that the prosecutors' action to
delay filing suit could interfere with the "constitutionally
protected right to institute ... suit", if that right had been
prejudiced. 708 F.2d at 973.7
Crowder acknowledged that, even in 1989, the contours of the
right of judicial access could best be described as "nebulous".
884 F.2d at 811. As reflected above, we hold that the right of
access, as clearly established in 1985-1988, encompassed a right to
7
The Fosters rely on the language from Ryland and Crowder,
quoted supra, and on cases from other jurisdictions, to urge that
a government cover-up of evidence violates the right of access,
even if suit has been successfully instituted. See, e.g., Bell
v. City of Milwaukee, 746 F.2d 1205, 1260-61 (7th Cir. 1984)
(citing Ryland); see also Nielsen v. Basit, No. 83 C 1683, 1994
WL 30980, at *3-4 (N.D. Ill. Feb. 1, 1994) (not reported in F.
Supp.) (citing Bell for proposition that allegations of civil
conspiracy to cover up evidence could state a claim for denial of
access to courts, and that that right was clearly established in
1981).
Bell, 746 F.2d at 1260-61, cites our court's 1983 Ryland
opinion with approval. We question Bell's reliance on Ryland for
any broader definition of right of access than one encompassing
the right to institute suit. We are similarly skeptical of
Nielsen's reliance on Bell. Nielsen, 1994 WL 30980, at *3
(citing Bell, 745 F.2d at 1261).
9

file an action, but not the right to proceed free of discovery
abuses after filing.8 Cf. Emplanar, Inc. v. Marsh, 11 F.3d 1284,
1296 (5th Cir. 1994) (in ongoing suit against government agency,
government employee who was potential witness did not improperly
chill access to courts by refusing to speak to plaintiff about
gravamen of litigation).
As discussed, we must accept as true the Fosters' allegations;
the alleged conduct would be reprehensible. But, that we are
"morally outraged", or the "fact that our collective conscience is
shocked" by the alleged conduct, Doe v. Taylor ISD, 15 F.3d at 475
(Jones, J., dissenting), does not mean necessarily that the
officials should have realized that it violated a constitutional
right of access. The reasonable actor must have known that the
conduct violated a clearly-established right; not that, in some
sense, he was doing something wrong. See id. at 465 (Garwood, J.,
dissenting) (dissent would hold that defendant was nevertheless
entitled to qualified immunity despite the fact that his actions
8
In cases decided after 1988, our court has continued to
characterize the right of access in terms of the right to
institute suit. See, e.g., Chrissy F., 925 F.2d at 851 (holding
that plaintiff's right of access to the courts was "blocked" by
defendants' failure to report allegations of abuse to appropriate
authorities, which failure caused plaintiffs to delay filing
suit); Johnson v. Atkins, 999 F.2d at 100. Hale v. Townley, 19
F.3d 1068, 1072-74 (5th Cir. 1994), modified, Nos. 92-5208, 93-
4090, 1994 WL 185925, slip op. 4462 (5th Cir. May 13, 1994),
concerns claims in 1988-1991 of retaliation for having sought
redress in the courts. Hale notes, in dicta, that Crowder, 884
F.2d 804, similarly did not involve a "claim that the defendants
had attempted to cover up facts critical to the plaintiffs'
lawsuits." Hale, 19 F.3d at 1073.
10

were
"deplorable....indecisive,
insensitive,
inattentive,
incompetent, stupid, and weak-kneed").
In sum, even assuming that the contours of the right of access
have been expanded since 1988 to include the Fosters' definition,
those contours were not clearly established at the time the claimed
violations occurred. A public official who concealed or destroyed
evidence, or gave false deposition testimony, surely would have
known that was improper, to say the least; but, at the time of the
alleged conduct, the right was not sufficiently "particularized ...
[so] that a reasonable official would understand" that the behavior
violated a constitutional right.9 See Doe v. Louisiana, 2 F.3d
1412, 1416 (5th Cir. 1993) (citations and internal quotation marks
omitted), cert. denied, ___ U.S. ___, 114 S. Ct. 1189 (1994).
III.
For the foregoing reasons, we REVERSE the denial of qualified
immunity for the city officials, and REMAND for further proceedings
consistent with this opinion.

REVERSED and REMANDED
9
The Fosters could, of course, have sought relief in state
court for the challenged behavior using a variety of state law
remedies, e.g. a motion to set aside the judgment based on fraud
or motions to compel compliance with discovery requests. See,
e.g., Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)
(motion to set aside judgment); Tex R. Civ. P. 215 (discovery);
Tex. R. Civ. P. 320 (motion for new trial upon showing of newly-
discovered evidence).
11