The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60202
Summary Calendar
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SCOTTY D. WHITE,
Plaintiff-Appellee
versus
LYNN BOYTE, Individually and
as Sheriff of Lincoln County,
Mississippi,
Defendant-Appellant.
______________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:94-CV-114-WS)
_______________________________________
May 22, 1997
Before GARWOOD, JOLLY AND DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellee Scotty White (White) filed this Mississippi
law diversity suit against defendant-appellant Lynn Boyte (Boyte),
Sheriff of Lincoln County, Mississippi, alleging that Boyte was
negligent in allowing inmates at the Lincoln County jail to assault
White while he was in jail for failing to appear at his arraignment
on the charge of driving while under the influence of alcohol. The
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
jury returned a verdict in favor of White and awarded him $50,000
in damages for future disability and impairment. For the following
reasons, we reverse.
Facts and Proceedings Below
White, a citizen of Louisiana, was arrested on May 22, 1993,
in Lincoln County, Mississippi, for driving while under the
influence of alcohol. To avoid waiting in jail until the date of
his arraignment, White made bail by obtaining a bond from Jim
Ladewig (Ladewig), a bondsman. After making the bail payment, he
was released from jail. He was scheduled to return to court on May
28, 1993. When White failed to show up for his arraignment,
Ladewig obtained an arrest warrant on White for contempt of court.
On June 7, 1993, Ladewig arrested White and brought him to the
Lincoln County jail. He was placed in a cell on the first floor of
the jail, which was used to temporarily hold pre-trial detainees.
At approximately 10:00 p.m., he asked a trusty if he could have a
mattress and take a shower. The trusty took him upstairs to the
cells on the second floor of the jail, which held both pre-trial
detainees and convicted felons.
White was placed in the cell with George Dubois, an
acquaintance of his. Once in the cell, Dubois approached White and
accused him of stealing his car and items from his house. An
altercation arose between White and Dubois, at which point two of
2
the inmates, Ollie Porter (Porter) and Ricky Adams (Adams), began
punching White in the face. Porter, who was wearing combat boots,
kicked White in the head, chest, and ribs. Other inmates,
including Cedric Watson (Watson) and Steven Williams (Williams),
took White’s money and punched and kicked him in the face and ribs.
Throughout the night, the inmates repeatedly assaulted White. As
a result of the assaults, White suffered serious injuries to his
right eye and ear.1
The next morning, when the trusties brought breakfast to the
cell area, one of the trusties noticed the injuries to White’s head
and asked him if anything had happened to him. Afraid that the
inmates would retaliate against him for disclosing what had
happened, White replied that he had sustained his injuries before
arriving at the jail. After eating breakfast, the inmates went
back to sleep, at which time White clandestinely used a pay phone
which was located inside the cell area to call his mother,
requesting that she get him out of jail. Later that morning, a
jailor came to the cell area and removed White from the cell.
White told an investigator with the Lincoln County Deputy Sheriff
that he had been beaten in the cell. After being interviewed he
was taken to a hospital emergency room, where he was treated for
his injuries.
On March 8, 1994, White filed this suit in the United States
1
The five inmates subsequently pleaded guilty to assault and
robbery on White.
3
District Court for the Southern District of Mississippi, Jackson
Division, alleging that under Mississippi law Sheriff Boyte was
negligent and legally responsible for White’s injuries at the hands
of other inmates (1) by placing him in a cell with individuals who
Boyte knew were dangerous and (2) by failing to maintain a proper
lookout or monitoring of White’s cell during the time of the
alleged assault.2 The jury rejected White’s first negligence
claim, but returned a verdict in favor of White on his second
claim. The jury awarded White $50,000 for future disability and
impairment. Boyte then filed his notice of appeal to this Court.
Analysis
Boyte’s primary argument on appeal is that the district court
erred in failing to grant his motion for judgment as a matter of
law based on state law qualified immunity.3 Under Mississippi law,
2
Jurisdiction was grounded in diversity, Boyte being a citizen
of Mississippi and White a citizen of Louisiana. No federal claims
are involved.
3
Alternatively, Boyte maintains the court erred in denying his
request that the jury be instructed that if it found that Boyte did
not substantially exceed his authority as sheriff or commit an
intentional tort against White, Boyte could not be liable for
White’s damages. Boyte’s proposed jury instruction on qualified
immunity read as follows:
“The Court instructs the jury that Sheriff Lynn
Boyte’s duties with regard to the housing of inmates in
the Lincoln County jailer [sic] are discretionary in
nature and, as a consequence, he is entitled to the
protection of qualified immunity. The law relegates to
all sheriffs the power of personal deliberation, decision
and judgment in the performance of his duties as they
relate to prisoners. This discretion entitles a sheriff
to qualified immunity so long as he does not
4
government officials who are sued for damages in a civil action
enjoy qualified immunity from tort liability unless they breach “a
legal duty [that] causes injury and (1) that duty is ministerial in
nature, or (2) that duty involves the use of discretion and the
governmental actor greatly or substantially exceeds his authority
and in the course thereof causes harm, or (3) the governmental
actor commits an intentional tort.” Evans v. Trader, 614 So.2d
955, 957 (Miss. 1993) (citations omitted); see also Webb v.
Jackson, 583 So.2d 949-50 (Miss. 1991). A ministerial duty or
function is one which has been “positively imposed by law and its
performance required at a time and in a manner or upon conditions
which are specifically designated, the duty to perform under the
conditions specified not being dependent upon the officer’s
judgment or discretion.” Sorey v. Kellet, 849 F.2d 960, 963 (5th
Cir. 1988); see also Mohundro v. Alcorn County, 675 So.2d 848, 853
(Miss. 1996); Westbrook v. City of Jackson, 665 So.2d 833, 837
substantially exceed his authority or intentionally harm
someone.
If you find from a preponderance of the credible
evidence in this case that Sheriff Lynn Boyte did not
substantially exceed his discretionary authority or
intentionally commit harm to the Plaintiff, Scotty White,
then it is your sworn duty to return a verdict in favor
of Sheriff Lynn Boyte.”
As we sustain Boyte’s claim that he was entitled to qualified
immunity as a matter of law, we need not actually reach this issue.
However, as our discussion reflects, even if there were a fact
issue on qualified immunity, the failure to grant this instruction
would doubtless be reversible error.
5
(Miss. 1995); Womble By and Through Havard on Behalf of Womble v.
Singing River Hosp., 618 So.2d 1252, 1265 (Miss. 1993); Barrett v.
Miller, 599 So.2d 559, 567-68 (Miss. 1992); McFadden v. State, 580
So.2d 1210, 1217 (Miss. 1991); Sykes v. Grantham, 567 So.2d 200,
211-12 (Miss. 1990).
Qualified immunity protects only those public officials
engaged in discretionary decision making. See, e.g., Region VII,
Mental Health-Mental Retardation Center v. Isaac, 523 So.2d 1013,
1016-18 (Miss. 1988) (holding that commissioners were acting in
their discretionary role in establishing supervised apartment
program and were therefore immune from liability for death of a
client stabbed by his roommate); Davis v. Little, 362 So.2d 642,
644-45 (Miss. 1978) (holding that supervisor charged with
negligence while driving county-owned truck was not entitled to
qualified immunity as the act of driving a vehicle did not involve
official discretionary decision-making process).
Both of the claims brought by White were grounded in
negligence. Because negligence is not an intentional tort, Boyte
is entitled to qualified immunity unless his duty in maintaining
the safety of his jail can be classified as a ministerial duty or,
if the duty was discretionary, that he substantially exceeded his
authority. See Webb, 583 So.2d at 950.
Clearly, Boyte’s duties respecting maintenance of jail safety
were discretionary, not ministerial. He had broad discretion in
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making decisions and formulating policies regarding safety and
protection of inmates in his jail. See McQueen v. Williams, 587
So.2d 918, 922 (Miss. 1991) (holding that sheriff’s duty to “safely
keep in the jail of his county all persons committed by order of
[the] courts” was discretionary in nature). Boyte’s policy
decisions, such as decisions regarding where to place inmates and
how often jailers and trusties were to check on the inmates, were
not guided by any statute, guideline, or procedure. Indeed, White
did not present any evidence at trial that demonstrated that
Boyte’s duty involved no discretion. Id.; see also McFadden v.
State, 542 So.2d 871, 880-81 (Miss. 1989) (holding that
Commissioner and Superintendent at the Mississippi State
Penitentiary had broad discretion in matters relating to prison
operations, including assignment, placement, housing, and
classification of inmates).
In support of his argument that Boyte’s duties with respect to
maintaining safety in the jail were ministerial, White cites Miss.
Code Ann. § 19-25-35. The Mississippi statute, however, only
generally requires that the sheriff “take into his custody, and
safely keep, in the jail of his county, all persons committed by
order of [the] courts . . . .” The statute does not positively
direct or specifically designate the sheriff’s specific duties vis-
à-vis jail safety policies and procedures. Cf. Coplin v. Francis,
631 So.2d 752, 755 (Miss. 1994) (holding that construction of
7
county road bridges in accordance with specifications mandated by
Miss.Code Ann. § 65-21-1 was ministerial in nature, thus precluding
supervisor from raising qualified immunity).
In addition to the Mississippi statute, White also relies on
Farmer v. State for Use of Russell, 79 So.2d 528 (Miss. 1955). In
Farmer, the widow of a prisoner who died while in the sheriff’s
custody sued the sheriff, arguing that the sheriff failed, after
repeated requests from the prisoner, to take the prisoner to a
doctor to receive treatment for serious stomach ulcers that caused
his death. The Mississippi Supreme Court held that the sheriff was
liable for the prisoner’s death because he negligently failed to
provide reasonable care to the prisoner.
White’s reliance on Farmer is misplaced. Farmer was decided
before the doctrine of qualified immunity was fully developed by
the Mississippi courts. Since Farmer, the Mississippi courts have
substantially clarified the qualified immunity doctrine. See,
e.g., Bogard v. Cook, 586 F.2d 399, 415 (5th Cir. 1978) (explaining
that “[Farmer and its progeny] were decided prior to Scheuer v.
Rodes,[94 S.Ct. 1683 (1974),] at a time when the doctrine of
qualified immunity was in its appellate court infancy.”), cert.
denied, 100 S.Ct. 173 (1979). Moreover, it does not appear that
the qualified immunity issue was raised by the parties or
considered by the court in Farmer, as the court did not mention or
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discuss qualified immunity anywhere in its opinion.4
Finally, the evidence reflects that Boyte did not
substantially exceed his discretion in any way. To the contrary,
the undisputed evidence at trial established that Boyte acted well
within his discretion in implementing a policy that required the
jailers on duty to check periodically on the inmates. Boyte
testified that the jailers on duty were required to check on the
inmates on a periodic basis, and Trusty Carol Britt and Jailer
Retha Bates testified that the policy at the jail was to check on
inmates during the night once every thirty to forty-five minutes.
Although it is unclear whether any of the jailers or trusties
actually checked the inmates the particular night White was beaten
in his cell, we cannot say that there is any evidence that Boyte
greatly exceeded his discretion in establishing jail policy in
these respects or in any other relevant particular.5
4
The Farmer court did discuss the applicability of judicial-
type immunity. However, the court found that the immunity did not
apply because the sheriff failed to take the necessary initial
steps of examining the prisoner before forming an opinion as to
whether the prisoner needed medical attention. Without any
examination, the court opined, the sheriff could not claim that his
“failure to call a doctor was because of any opinion, judicial or
otherwise, formed by the sheriff . . . that the prisoner did not
need medical care.” Farmer, 79 So.2d at 530.
5
Boyte raises other arguments in his brief, including
complaints that the jury failed to follow the court’s instructions
and that the court should have excluded the testimony of one of
White’s expert witnesses. Because we conclude that Boyte is
entitled to qualified immunity, we need not address the merits of
these arguments.
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Conclusion
For the foregoing reasons, the judgment of the district court
is
REVERSED.
10