Cantu v. Rocha

• Decision Date: 28 February 1996
• Docket Number: Nos. 94-60380,94-60577,s. 94-60380
• Citation: 77 F.3d 795
• Parties: 107 Ed. Law Rep. 459 Imelda C. CANTU, Plaintiff-Appellee, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 795

77 F.3d 795

107 Ed. Law Rep. 459

Imelda C. CANTU, Plaintiff-Appellee, v. 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.

Nos. 94-60380, 94-60577.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1996.

Robin Sanders, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellants.

Marianne Reat, Donald Branson, Texas Rural Legal Aid, Inc., Edinburg, TX, Martha P. Rangel, Texas Rural Legal Aid, Inc., Weslaco, TX, for appellee in No. 94-60380.

Marianne Reat, Texas Rural Legal Aid, Inc., Edinburg, TX, for appellee in No. 94-60577.

Appeals from the United States District Court for the Southern District of Texas.

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 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 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, 1991, 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 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.

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 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,...