IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-60013
JOSEPH JONES,
Plaintiff-Appellee,
versus
CITY OF JACKSON ET AL., Defendants,
MALCOLM McMILLIN and LES TANNEHILL, Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Mississippi
February 14, 2000
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Malcolm McMillin and Les Tannehill appeal the district court’s
denial of their motion for summary judgment, in which they claimed
qualified, absolute and sovereign immunity from Joseph Jones’s
causes of action brought pursuant to 42 U.S.C. § 1983 and
Mississippi state law. We affirm in part, reverse in part and
remand the case to the district court for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
For purposes of this appeal we assume the truth of the
following facts.
1 In October 1991, Jones entered guilty pleas to three separate
burglary counts. In the first count, Cause No. 4255, Jones was
sentenced to two years of incarceration and five years of
probation. The other counts, Cause Nos. 4256 and 4257, were left
as open pleas, the sentences to be determined at a later time. On
February 24, 1993, after Jones had completed his two years in
prison and been released to serve the probated portion of his
initial sentence, Judge Breland Hilburn, Circuit Judge of Hinds
County, Mississippi, issued a bench warrant for Jones’s arrest for
failure to appear for sentencing in Cause Nos. 4256 and 4257. The
basis for the issuance of the bench warrant is variously
characterized as a “clerical error” and “probation violation” by
the parties on appeal.
On Sunday, June 5, 1994, a City of Jackson police officer
stopped Jones for a routine traffic violation. The officer
arrested Jones for an outstanding warrant on a simple assault
charge and for operating a motor vehicle without a license and took
him to the Jackson City Jail. The next day, June 6, 1994, Hinds
County1 Sheriff’s Deputy Les Tannehill sent a facsimile copy of a
bench warrant to the Jackson City Jail requesting that a detainer
be placed in Jones’s file based on the bench warrant issued earlier
by Judge Hilburn. Malcolm McMillin, Sheriff of Hinds County, had
no personal involvement with Jones other than his official
responsibilities to devise and enforce policy for Hinds County. On
Tuesday, June 7, 1994, Jones attended a hearing before the City of
1 The city of Jackson is in Hinds County, Mississippi.
2 Jackson Municipal Court wherein the charges of simple assault and
driving without a license brought by the City of Jackson were
dismissed when the City of Jackson determined that it had arrested
the wrong person. However, Jones remained incarcerated in the
Jackson City Jail on the basis of the detainer lodged by Tannehill.
The City of Jackson continued to incarcerate Jones until June 20,
1994, when he was transferred from the Jackson City Jail to the
Madison County Jail.
At the time, the City of Jackson and Hinds County Jail systems
were under federal court order to relieve overcrowding. Jackson
and Hinds County entered into an Interlocal Agreement with Madison
County, Mississippi to house Jackson’s extra prisoners for a fee.
The agreement allocated a set number of prisoner beds to Jackson
and Jackson agreed to “sublet” their unused beds in Madison County
Jail to house Hinds County’s extra prisoners. The cost of Jones’s
incarceration was billed daily to Hinds County, who reimbursed the
City of Jackson for their payments to Madison County.
Jones remained in the Madison County Jail as a result of the
Hinds County detainer, without hearing or court appearance, until
March 6, 1995. After nine months, Jones was brought into state
district court in Hinds County, Mississippi and Judge Hilburn
entered an order dismissing all affidavits for probation violation,
terminating Jones’s probation, dismissing and vacating all
detainers and charges placed on Jones by Hinds County or the
Jackson Police Department and ordered the Hinds County Sheriff’s
Office to “immediately RELEASE the Defendant from custody.”
3 On June 7, 1996, Jones filed a complaint in Mississippi state
court against the City of Jackson, Hinds County and numerous
individual defendants, alleging that the defendants violated his
constitutional rights and various state laws by detaining him in
1994-95. Jones dismissed Hinds County without prejudice and the
remaining defendants removed the case to federal court. Tannehill
and McMillin filed a motion for summary judgment on the basis of
absolute, qualified and sovereign immunity. The district court
denied summary judgment in a one-page order.
II. DISCUSSION
A. JURISDICTION AND STANDARD OF REVIEW
Jones argues that we do not have jurisdiction over this
appeal. Typically, denials of qualified immunity, although not
final orders, are immediately appealable under the collateral order
doctrine set forth in Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949). This doctrine allows an immediate appeal from
orders denying summary judgments based on qualified immunity as a
matter of law. See Mitchell v. Forsythe, 472 U.S. 511, 530 (1985).
“If disputed factual issues material to summary judgment are
present, the district court’s denial of summary judgment on the
basis of immunity is not appealable.” Lampkin v. City of
Nacogdoches, 7 F.3d 430, 431 (5th Cir. 1993)(quotation and
citations omitted). Jones maintains that there is no way to
determine whether facts or law formed the basis for the district
court’s denial of summary judgment and that this court is therefore
without jurisdiction to review it on interlocutory appeal.
4 When the district court fails to make findings of fact and
conclusions of law, the appellate court will “undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the non-moving
party, likely assumed.” Behren v. Pelletier, 516 U.S. 299, 313
(1996). Having performed the requisite record review, we conclude
that this appeal presents questions of law, not fact,2 and is
therefore immediately appealable. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985).
This court reviews the denial of a motion for summary judgment
de novo using the same criteria applied by the district court in
the first instance. Reese v. Anderson, 926 F.2d 494, 498 (5th Cir.
1991).
B. IN CUSTODY
No one disputes that Jones was imprisoned for nine months.
However, Appellants contend that Hinds County did not have
“custody” of Jones. Who was responsible for Jones’s illegal
detention and whether or not that detention gave rise to
constitutional protections are mixed questions of fact and law that
go to the gravamen of Jones’s suit.
Under Mississippi law, if a Hinds County prisoner is housed in
a different county due to over-crowding, Hinds County remains
responsible for his custody. See Lee v. State of Mississippi, 437
2 The record reveals that material issues of fact remain as well, particularly concerning the question of which individual or individuals caused the alleged constitutional violations. To the extent the parties’ arguments are bottomed on factual question of causation, we have no jurisdiction to resolve their disputes.
5 So.2d 1208, 1209 (Miss. 1983) (interpreting § 47-3-1 MISS. CODE ANN.
(1972). Further, a Mississippi prisoner awaiting trial on a
criminal charge in one county is entitled to credit for time served
in another county so long as a detainer is lodged in the prisoner’s
file by the first county. See id. In addition, we find it
significant that the Mississippi Circuit Court order directed Hinds
County to release Jones, which order successfully gained his
freedom.
This court has similarly held that a prisoner incarcerated in
one jurisdiction subject to a detainer from a different
jurisdiction is “in custody” of the second jurisdiction for
purposes of federal habeas corpus statute, 28 U.S.C. §
2241(c)(3)(1994). See Dickerson v. State of Louisiana, 816 F.2d
220, 224-25 (5th Cir. 1987). Dickerson relied on Braden v. 30th
Judicial Court of Kentucky, 410 U.S. 484 (1973), in which the
Supreme Court concluded that a state placing a detainer on the
petitioner who was incarcerated in another jurisdiction had
“custody” of him for habeas corpus purposes. See id., 410 U.S. at
489 n.4.
Based on the unanimous jurisprudence of Mississippi, the Fifth
Circuit and the Supreme Court, we conclude that Jones has alleged
facts sufficient to establish that Hinds County had custody of
Jones. McMillin and Tannehill, named in their individual and
official capacities, allegedly caused Hinds County’s exercise of
illegal custody over Jones by affirmative acts (e.g., sending the
detainer to Jackson City Jail) and omissions (e.g., failing to take
6 Jones before the Circuit Court of Hinds County as the Bench Warrant
commanded).
C. QUALIFIED IMMUNITY
The first inquiry in examining a defense of qualified immunity
asserted in a motion for summary judgment is whether the plaintiff
has alleged “the violation of a clearly established constitutional
right.” Siegert v. Gilley, 500 U.S. 226, 231 (1991). The second
step is to “decide whether the defendant’s conduct was objectively
reasonable” in light of the legal rules clearly established at the
time of the incident. Spann v. Rainey, 987 F.2d 1110, 1114 (5th
Cir. 1993).
1. Clearly established constitutional rights
Jones alleged that his Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights were violated when he was held pursuant
to a detainer issued by the Hinds County Sheriff’s Office and
placed in his file by defendant Tannehill and was not brought
before a judge or magistrate for over nine months.
a. Fourth Amendment
Jones’s Fourth Amendment allegations fail because he admitted
that a facially valid bench warrant existed in Hinds County on the
date the detainer was sent to Jackson City Jail. The original
seizure was therefore pursuant to a valid court order. “Fourth
Amendment claims are appropriate [only] when the complaint contests
the method or basis of the arrest and seizure of the person.”
Brooks v. George County, Miss., 84 F.3d 157, 166 (5th Cir. 1996).
The protections offered by the Fourth Amendment do not apply if the
7 plaintiff challenges only continued incarceration. Id. We must
therefore reverse and render summary judgment for Tannehill and
McMillin on Jones’s Fourth Amendment Claims.
b. Fifth Amendment
Jones’s Fifth Amendment claim of a denial of his right to due
process must also fail. The Fifth Amendment applies only to
violations of constitutional rights by the United States or a
federal actor. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir.
1996). Jones has not alleged that McMillin or Tannehill were
acting under authority of the federal government. Tannehill and
McMillin are entitled to summary judgment on Jones’s Fifth
Amendment Claims.
c. Sixth Amendment
Jones raised two alleged violations of the Sixth Amendment:
denial of his right to counsel and denial of his right to be
informed of the charges against him. The right to counsel
guaranteed by the Sixth Amendment attaches when adversary
proceedings are commenced against the defendant. United States v.
Gouveia, 467 U.S. 180, 187-188 (1984). A defendant’s right to be
informed of the nature and cause of an accusation brought against
him does not exist until the Government is committed to a
prosecution. Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir.
1987). The bench warrant underlying the detainer was based on
Jones’s alleged failure to appear for sentencing on two burglary
charges. Certainly the Government was “committed to a prosecution”
of these two charges and the Sixth Amendment rights to be informed
8 of the charges and to be represented by counsel had attached. We
will therefore affirm the denial of qualified immunity on Jones’s
Sixth Amendment claims.
d. Eighth Amendment
Jones alleged that his incarceration constituted cruel and
unusual punishment in violation of the Eighth Amendment. “‘The
primary purpose of [the Cruel and Unusual Punishments] clause has
always been considered . . . to be directed at the method or kind
of punishment imposed for the violation of criminal statutes . . .
.’” Ingraham v. Wright, 430 U.S. 651, 667 (1977)(quoting Powell v.
Texas, 392 U.S. 514, 531-532 (1968)). Jones, complaining about the
fact of his incarceration rather than its conditions, fails to
state a cause of action under the Eighth Amendment. We therefore
reverse the denial of qualified immunity from Jones’s Eighth
e. Fourteenth Amendment
Jones has also alleged violations of his Fourteenth Amendment
due process rights, which are protected from unconstitutional
actions by state actors. See DeShaney v. Winnebago Co. Dep’t of
Soc. Servs., 489 U.S. 189, 196 (1989). Prohibition against
improper use of the “formal restraints imposed by the criminal
process” lies at the heart of the liberty interests protected by
the Fourteenth Amendment due process clause. See Board of Regents
v. Roth, 408 U.S. 564, 575 (1972). The Fourteenth Amendment’s
protection of Jones’s liberty interest was clearly established in
1994-95, and Jones’s alleged nine month detention without proper
9 due process protections was not objectively reasonable in light of
the clearly established legal rules. We must therefore affirm the
denial of qualified immunity as to Jones’s Fourteenth Amendment
claims.
STATE LAW CLAIMS
McMillin and Tannehill also appeal the denial of summary
judgment for state-law claims against them. Under Mississippi law,
an exemption for the waiver for sovereign immunity exists if the
defendants are government officials acting in the course and scope
of their employment and the complainant was incarcerated at the
time of the alleged acts. MISS. CODE ANN. § 11-46-9(1)(m) (1972).
Jones was incarcerated at the time of the events at issue, and he
has not alleged any facts that would tend to show that McMillin and
Tannehill were not acting in the course and scope of their
employment. Therefore, McMillin and Tannehill should have been
granted summary judgment based on sovereign immunity for state-law
claims filed against them by Jones.
CONCLUSION
We AFFIRM the denial of qualified immunity as to Jones’s Sixth
and Fourteenth Amendment claims, and REMAND this case to the
district court for further proceedings. We REVERSE the district
court and grant Tannehill and McMillin qualified immunity on
Jones’s Fourth, Fifth and Eighth Amendment claims. Finally, we
REVERSE the denial of summary judgment for defendants on Jones’s
state law claim.
AFFIRMED in part, REVERSED in part, and REMANDED.
10 EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
I agree with those portions of the majority opinion which find
that Hinds County Sheriff Malcolm McMillan and Deputy Sheriff Les
Tannehill are entitled to qualified immunity on most of Joseph
Jones’s federal law claims against them. I also agree that
McMillan and Tannehill are entitled to sovereign immunity for
Jones’s state law claims. Accordingly, I concur with the opinion’s
partial reversal of the lower court’s denial of summary judgment.
However, the opinion affirms the district court’s denial of
qualified immunity on Jones’s Sixth and Fourteenth Amendment
claims. I dissent from this portion of the opinion because Jones
has not shown that either McMillan or Tannehill violated his
clearly established rights.
Public officials acting within the scope of their official
duties are shielded from liability by qualified immunity.
See Kipps v. Caillier, — F.3d —, 1999 WL 1115448, at *2 (5th Cir.
Dec. 6, 1999). Qualified immunity applies unless: (1) the
plaintiff alleges the violation of a clearly established
constitutional right, and (2) the defendant’s conduct was
objectively unreasonable. See Palmer v. Johnson, 193 F.3d 346, 351
(5th Cir. 1999). Additionally, the record must at least “give[]
rise to a genuine issue of material fact as to whether the
defendant actually engaged in the conduct that violated the
clearly-established right.” Kipps, 1999 WL 1115448, at *2 (quoting
11 Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999)). Once the
defendant invokes qualified immunity by pleading good faith and
shows that he was acting within the scope of his discretionary
duty, the burden shifts to the plaintiff to show that the defendant
violated clearly established law. See Salas v. Carpenter, 980 F.2d
299, 306 (5th Cir. 1992).
The evidence before the district court on summary judgment
consisted of affidavits from McMillan and Tannehill, which they
submitted in support of their motion.3 McMillan’s affidavit states
that he had no knowledge of Jones’s case until Jones served him
with the complaint. Tannehill’s affidavit states that he sent a
written detainer request to the Jackson City Jail after noticing
that Judge Hilburn had an outstanding bench warrant for Jones, and
that he then informed Judge Hilburn’s court administrator about the
detainer.4
The evidence does not show that an act of either McMillan or
Tannehill harmed Jones; he has not identified a policy of
McMillan’s which harmed him5 and he has not shown that Tannehill’s
3 Jones apparently responded to their motion, but he did not file his response and thus it is not before us. Cf.United States v. Coveney, 995 F.2d 578, 587-88 (5th Cir. 1993) (discussing the appellee’s responsibility to ensure that the record is complete). 4 On appeal, Jones disputes whether Tannehill actually notified Judge Hilburn’s administrator that he had placed the detainer. He also alleges that “[t]his type of act occurred on numerous occasions prior to Joseph Jones [sic] dilemma” and that “[a]ll of the aforementioned actors were aware of the prior occurrences, remedial measures were not taken, or if they were taken, they were wholly inadequate.” Because he does not support these allegations with evidence, they do not raise genuine issues of material fact. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (stating that the nonmovant’s burden of responding to the movant’s showing that there are no genuine issues of material fact “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”) (citations and quotations omitted). 5 McMillan’s only “policy” which Jones specifically identifies is the space-sharing agreement with Madison County under which Jones was transferred to the Madison County Jail. Jones fails to show that this policy was facially improper or that it was applied to him improperly.
12 placement of the detainer on him was improper. Instead, he
attempts to show that, by virtue of their positions and because
Tannehill placed the detainer on him, they owed him duties which
they did not perform, thereby violating his rights.
Jones has not identified a legal duty McMillan owed him which
he did not carry out. He argues that McMillan was deliberately
indifferent to his rights, see, e.g., Jones v. City of Chicago, 856
F.2d 985, 992-93 (7th Cir. 1988) (“[S]upervisors who are merely
negligent in failing to detect and prevent subordinates' misconduct
are not liable . . . . The supervisors must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.”), but he makes no showing that
McMillan knew about his situation, knew similar events had
occurred, or failed to take reasonable steps to prevent Jones’s
lengthy detention from occurring.
Jones also suggests that McMillan violated duties he owed
Jones by virtue of the “special relationship” between the state and
a prisoner. See generally DeShaney v. Winnebago County Dept. of
Social Services, 489 U.S. 189, 199-200, 109 S. Ct. 998, 1005, L.
Ed. 2d , __ (1989) (“[W]hen the State takes a person into its
custody and holds him there against his will, the Constitution
imposes upon it a corresponding duty to assume some responsibility
for his safety and general well-being.”). He fails to show, as a
legal or factual matter, that this “special relationship” existed
here. Significantly, he does not rely on Mississippi law vesting
sheriffs with certain responsibilities over county jails to argue
13 that McMillan was responsible for his custody, see Miss. Code Ann.
§ 47-1-49 (“The sheriff shall have charge of the . . . jail of his
county . . . and of the prisoners in said jail.”), presumably
because Jones was in a city rather than a county jail, see id. §
47-1-49 (“In the case of a jail owned jointly by a county and
municipality, . . . the governing authorities of the county and
municipality are hereby vested with full and complete authority,
jurisdiction and control over such jointly owned jail facility and
the governing authority of the municipality may appoint a jailer
who shall be responsible for all municipal prisoners lodged in said
jail in the same manner in which the sheriff is responsible for
state prisoners . . . .”). The state law he does rely on, Miss.
Code Ann. § 47-3-1, applies when a prisoner is placed in a jail
outside the arresting jurisdiction. It directs “the sheriff of the
county to which the prisoner is so removed . . . to have the body
of the accused, without further order, before the proper court of
the proper county, at its next term thereafter, on the first day of
the term.” Id. (emphasis added). Because McMillan was not the
sheriff in the county to which Jones was removed, § 47-3-1 imposed
no duty on him. Similarly, § 99-3-17, which directs “[e]very
person making an arrest [to] take the offender before the proper
officer without unnecessary delay for examination of his case,” id.
§ 99-3-17, does not apply because McMillan and Tannehill did not
arrest Jones. Cf. United States v. Hausman, 894 F.2d 686, 688-89
(5th Cir. 1990) (concluding that a federal detainer was not
equivalent to an arrest for purposes of the Speedy Trial Act).
14 Jones’s allegations against Tannehill also fail. Tannehill
had no greater duty as Deputy Sheriff than McMillan had as Sheriff,
and thus his position alone does not render him responsible for
Jones. Additionally, Jones has not shown that Tannehill had a
general legal duty to follow up
on the detainer he lodged, and Jones does not allege facts which
might establish a specific duty to do so here.6
Qualified immunity is a shield from civil liability for “all
but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096,
89 L. Ed. 2d 271, __ (1986). Accordingly, we “resolv[e] immunity
questions at the earliest possible stage in litigation,” Hunter v.
Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589,
__ (1991) to ensure that the immunity properly shields those it is
meant to protect. Because the majority opinion undermines this
protection by allowing claims against McMillan and Tannehill to
proceed even though there is no evidence in the record which
suggests that they violated Jones’s clearly established rights, I
dissent from this portion of the majority’s opinion.
6 For example, Jones does not allege that Tannehill was notified that the other charges against Jones were dropped, and that Jones was therefore only being held because of Tannehill’s detainer. Nor does he allege that Tannehill improperly documented the detainer such that Jones’s case was “lost in the shuffle.” To the contrary, Tannehill’s affidavit states that he promptly notified the court administrator upon placing the detainer. (As noted, Jones disputes this, but he does so without citing evidence on which we could rely.)