Harris v. Forrest County MS

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 19, 2007

No. 06-60885 Charles R. Fulbruge III

Clerk

DONALD E HARRIS

Plaintiff-Appellee

v.

GEORGE PAYNE, Harrison County Sheriff, Individually and in His Official

Capacity as Sheriff of Harrison County, Mississippi

Defendant-Appellant

Consolidated with

No. 06-60967

DONALD E HARRIS

Plaintiff-Appellant

v.

HARRISON COUNTY MISSISSIPPI; SHARON WALDRUP; JAMES ZUGG;

RHONDALYN ROGERS

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 2:03-CV-604

Before DENNIS, CLEMENT, and PRADO, Circuit Judges.

No. 06-60885 c/w No. 06-60967

PER CURIAM:*

Before the court are consolidated appeals regarding the liability of a

county and several of its employees for the erroneous four-month incarceration

of Plaintiff Donald E. Harris (“Harris”). Although it is clear that Harris should

never have been incarcerated, there is no evidence that the actions of the

individual defendants amounted to more than negligence. As a result, Harris

cannot establish a constitutional violation, and Mississippi law bars his tort

claims. Consequently, we AFFIRM in part and REVERSE in part.

I. FACTUAL BACKGROUND

On September 28, 2002, Harris was arrested in Forrest County,

Mississippi, on a felony charge for driving under the influence. Harris posted

bond after spending approximately three days in jail. However, before releasing

him, the Forrest County Sheriff’s Office contacted the Harrison County Sheriff’s

Office to find out if Harrison County wanted to place a hold on Harris. It seems

a grand jury in Harrison County had indicted a “Donald Harris” for shoplifting,

and an alias capias warrant had been issued for his arrest. In response to

Forrest County’s inquiry, Jeannie Carlisle (“Carlisle”), an employee in the

Harrison County Sheriff’s Office, faxed a letter and the alias capias warrant to

Forrest County on September 30, 2002, confirming the detainer on Harris. The

letter identified “Donald Harris” as a black male and listed his social security

number and date of birth. Harris is a white male with a different social security

number and date of birth.

That same day, Harrison County Prisoner Transport Deputies James Zugg

(“Zugg”) and Sharon Waldrop (“Waldrop”), who are Defendants-Appellees in this

case, were in route to Harrison County after picking up another inmate in

*

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.

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Rankin County. The Harrison County Adult Detention Center (“HCADC”)

contacted Zugg and Waldrop by cell phone and instructed them to pick up Harris

from the Forrest County jail. Typically, the HCADC would provide Zugg and

Waldrop with paperwork identifying the individual they were to pick up;

however, because Zugg and Waldrop were already on the road, the HCADC was

unable to fax the paperwork to them.

When Zugg and Waldrop arrived at the Forrest County jail, Waldrop

explained that they did not have any paperwork on Harris. A Forrest County

employee informed her that Forrest County had received all the necessary

paperwork. Zugg then retrieved Harris and placed him in handcuffs. Harris

protested once to Zugg and Waldrop that they were detaining the wrong person,

and Zugg told Harris to address the matter with the HCADC booking officer.

Zugg and Waldrop turned Harris over to the booking officer upon arrival at the

HCADC, but Harris made no further protest at that time.

Normal procedure at the HCADC called for Defendant-Appellee Deputy

Rhondalyn Rogers (“Rogers”), an inmate records clerk, to receive advance notice

of an inmate’s arrival. Rogers would then create a Uniform Custody Report

(“Report”) for the inmate using the biographical information from the

indictment, warrant, and other paperwork. After the inmate was booked, she

would compare the information in the Report to the information entered into the

computer by the booking officer. In such circumstances, the discrepancies in

Harris’s information would have been apparent, as the Report would have

indicated that Harris was black based on his paperwork while the booking officer

would have noted that he was white. However, when an inmate arrived after

normal working hours, Rogers would not be present and the transport officer

would fill out the Report. Rogers testified that it was not unusual for a transport

officer to fill out the Report by asking the inmate for his biographical

information, instead of relying on the paperwork. Rogers stated that her job the

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next morning was to compare the Report with the information entered into the

computer by the booking officer, checking to make sure it was complete and free

of typographical errors.

In this case, Harris arrived at 6:15 p.m., which was after normal working

hours, and Rogers was not present. Zugg testified that Waldrop filled out the

Report by asking Harris for his biographical information. During her review the

next day, Rogers did not notice any discrepancy between the Report and the

information entered by the booking officer, and Harris admits he has no evidence

to the contrary.

Harris’s only other protest of innocence came two or three days after he

arrived at the HCADC. On or around October 2, 2002, Harris claims that

Defendant-Appellant George Payne (“Payne”), Sheriff of Harrison County,

walked through Harris’s cell block. Harris approached Payne and told him that

he (Harris) was the “wrong person.” Payne then allegedly told Harris that

everybody says that and that Harris needed to sit down and shut his mouth.

Payne does not recollect this conversation and asserts that had Harris told him

he was the wrong person, he would have looked into the matter, as was his usual

practice.

Harris had no further personal contact with Payne until his release on

January 29, 2003. Harris also made no further protest of mistaken identity to

any government actor during that time. However, his mother, Helen Christine

Harris (“Ms. Harris”) testified that she repeatedly contacted various Harrison

County officials by phone to explain her son’s innocence. She does not claim to

have spoken to Payne, and Payne has no recollection of speaking to her.

Around January 28, 2003, the Harrison County District Attorney’s Office

notified Captain Rick Gaston that the Harris in custody might not be the Donald

Harris identified in the alias capias warrant. Further investigation confirmed

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this, and Harrison County released Harris on January 29, 2003, after four

months of incarceration.

II. PROCEDURAL HISTORY

Harris filed suit on December 12, 2003, against Forrest County, Harrison

County, Payne, and the sheriff of Forrest County. Harris subsequently amended

his complaint to add as defendants various Forrest County and Harrison County

officials, including Zugg, Waldrop, and Rogers. Harris’s claims included

violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the

United States Constitution, brought pursuant to 42 U.S.C. § 1983, and

numerous Mississippi state law claims. The Forrest County defendants settled,

and the remaining defendants filed motions for summary judgment.

The district court granted summary judgment on Harris’s federal claims

on the ground of qualified immunity to all of the individual defendants except

Payne. The district court also granted summary judgment to all of the

individual defendants except Payne on Harris’s state law claims pursuant to the

Mississippi Tort Claims Act. Further, the district court granted summary

judgment to Harrison County, ruling that Harris did not show his erroneous

incarceration was the result of a policy or custom of the county.

Payne now appeals the denial of his motion for summary judgment. We

have jurisdiction over Payne’s appeal pursuant to the collateral order doctrine.

See Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). Harris appeals the

grant of summary judgment to Zugg, Waldrop, Rogers, and Harrison County.

We granted Harris leave to appeal under 28 U.S.C. § 1292(b).

III. STANDARD OF REVIEW

With respect to Harris’s appeal, we review grants of summary judgment,

including grants based on qualified immunity, de novo, applying the same

standard as the district court. Turner v. Baylor Richardson Med. Ctr., 476 F.3d

337, 343 (5th Cir. 2007); Stidham v. Tex. Comm’n on Private Sec., 418 F.3d 486,

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490 (5th Cir. 2005). Summary judgment is appropriate when, after considering

the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits, “there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Bulko

v. Morgan Stanley DW Inc., 450 F.3d 622, 624 (5th Cir. 2006).

Our consideration of Payne’s appeal of the denial of qualified immunity is

more limited, however. See Gobert, 463 F.3d at 344-45. When reviewing the

denial of qualified immunity on summary judgment, we are permitted to decide

only whether issues of fact are material, which is a question of law. Reyes v. City

of Richmond, 287 F.3d 346, 351 (5th Cir. 2002); Bazan ex rel. Bazan v. Hidalgo

County, 246 F.3d 481, 490 (5th Cir. 2001). We are not permitted to decide, and

indeed we lack jurisdiction to decide, whether fact issues are genuine. Reyes, 287

F.3d at 351; Bazan, 246 F.3d at 490. Therefore, we must accept the district

court’s decision regarding which fact issues are genuine and review de novo the

purely legal question of whether those genuine fact issues are also material. See

Gobert, 463 F.3d at 345; see also Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.

2004) (en banc) (stating that the court may “consider only whether the district

court erred in assessing the legal significance of the conduct that the district

court deemed sufficiently supported for purposes of summary judgment”).

IV. DISCUSSION

On appeal, Harris contends that the district court erred in determining

that Zugg, Waldrop, and Rogers were entitled to the defense of qualified

immunity with respect to Harris’s federal claims and that the Mississippi Tort

Claims Act barred Harris’s Mississippi law claims. Harris also asserts that the

district court incorrectly granted summary judgment to Harrison County. In his

appeal, Payne contends that the district court erred in denying his motion for

summary judgment on Harris’s federal and state law claims. We will first

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address Harris’s federal claims against all of the individual defendants—Zugg,

Waldrop, Rogers, and Payne.

A. Individual Defendants - Federal Claims

With respect to Harris’s federal claims, we must decide whether the

district court properly determined that Zugg, Waldrop, and Rogers were entitled

to qualified immunity on Harris’s constitutional claims, but that Payne was not

so entitled. Harris’s complaint makes claims against the individual defendants

under the Fourth, Fifth, Eighth, and Fourteenth Amendments; however, he only

presents arguments on the Fourth and Fourteenth Amendments on appeal.

Therefore, we will confine our analysis to his claims under those amendments.

See Robinson v. Guarantee Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir.

2004) (“Failure adequately to brief an issue on appeal constitutes waiver of that

argument.”).

1. Qualified Immunity

Qualified immunity shields government officials from both liability and

suit when they are acting within their discretionary authority and their conduct

does not violate clearly established statutory or constitutional law of which a

reasonable person would have known. Wallace v. County of Comal, 400 F.3d

284, 289 (5th Cir. 2005); see also Saucier v. Katz, 533 U.S. 194, 200-01 (2001)

(“Qualified immunity is an entitlement not to stand trial or face the other

burdens of litigation.”) (internal quotation marks omitted). It is a defense that

must be pleaded by the government official and should be addressed at an early

stage in the litigation. Saucier, 533 U.S. at 200-01; Siegert v. Gilley, 500 U.S.

226, 231 (1991).

We employ a two-step test to analyze claims of qualified immunity.

Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007). The first question we

must answer is whether the plaintiff’s allegations, if true, demonstrate the

violation of a clearly established right. Wallace, 400 F.3d at 289; see also

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Saucier, 533 U.S. at 201 (defining the threshold question as “[t]aken in the light

most favorable to the [plaintiff], do the facts alleged show the officer’s conduct

violated a constitutional right?”). A right is “clearly established” when its

contours are “sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Wooley v. City of Baton Rouge, 211 F.3d

913, 919 (5th Cir. 2000) (internal quotation marks omitted). If the plaintiff has

alleged the violation of a clearly established right, we proceed to the second step

of the analysis and determine whether the defendant’s conduct was objectively

reasonable under the law at the time of the incident. Michalik v. Hermann, 422

F.3d 252, 258 (5th Cir. 2005).

In the context of a summary judgment motion, the government official

need only plead qualified immunity, which then shifts the burden to the

plaintiff. Id. at 262. The plaintiff must rebut the defense by establishing that

the government official’s allegedly wrongful conduct violated clearly established

law and that genuine issues of material fact exist regarding the reasonableness

of the government official’s conduct. Id. We now analyze Harris’s claims using

this framework.

2. Fourth Amendment Claim

We turn first to Harris’s claims under the Fourth Amendment, which are

two-fold. He first asserts that Zugg and Waldrop violated his Fourth

Amendment rights by arresting him without probable cause. He then claims

that Payne violated his Fourth Amendment rights by not presenting him to a

judicial officer within forty-eight hours of his arrest.1

1

Although Harris includes mention of Rogers in his Fourth Amendment claim, he

makes no allegations that she was involved in the decision to arrest Harris. Her actions, thus,

will be analyzed under Harris’s Fourteenth Amendment claims.

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a. Zugg and Waldrop

To survive the first step of the qualified immunity analysis, Harris must

allege facts that demonstrate that Zugg and Waldrop violated his Fourth

Amendment rights. See Wallace, 400 F.3d at 289. Harris has asserted that Zugg

and Waldrop arrested him without probable cause, violating several policies of

the sheriff’s office in the process, and that they should have verified his identity

by looking at the paperwork. The undisputed facts are that Zugg and Waldrop

picked up Harris from Forrest County and transported him to the HCADC

without ever receiving any paperwork regarding Harris.

The Fourth Amendment requires that probable cause exist before the

government may arrest an individual. U.S. CONST. amend. IV; Freeman v. Gore,

483 F.3d 404, 411 (5th Cir. 2007). Here, probable cause was present, as Harris

was arrested pursuant to a warrant that had been issued following a grand jury

indictment. “A warrant of arrest can be based upon an indictment because the

grand jury’s determination that probable cause existed for the indictment also

establishes that element for the purpose of issuing a warrant for the

apprehension of the person so charged.” Giordenello v. United States, 357 U.S.

480, 487 (1958); Campbell v. City of San Antonio, 43 F.3d 973, 976 (5th Cir.

1995) (noting that an arrest warrant may be based on a grand jury indictment

which establishes probable cause). Harris has not argued that the warrant was

not based on probable cause or that it was faulty or improperly obtained.

Consequently, probable cause existed to arrest Harris.

That Harris was not the “Donald Harris” named in the warrant does not

create a Fourth Amendment violation. The Supreme Court has stated that

“[w]hen the police have probable cause to arrest one party, and when they

reasonably mistake a second party for the first party, then the arrest of the

second party is a valid arrest.” Hill v. California, 401 U.S. 797, 802 (1971)

(internal quotation marks omitted). The Fifth Circuit has followed this rule,

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stating that “[t]he Fourth Amendment is not violated by an arrest based on

probable cause, even if the wrong person is arrested, if the arresting officer had

a reasonable, good faith belief that he was arresting the correct person.”

Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994). Under this standard, the

use of the alias capias warrant to detain Harris does not violate the Fourth

Amendment as long as Zugg and Waldrop’s actions were reasonable.

Harris asserts that Zugg and Waldrop’s actions were not reasonable

because they did not verify his identity before taking him into custody. This

court encountered a similar situation in Blackwell, 34 F.3d at 300-04. In that

case, a police officer arrested Mindy Blackwell, who had the same first name and

general appearance as a person described in a warrant. Id. at 300. Blackwell

gave the officer her driver’s license, which showed she had a different last name

than the warrant described, but the officer did not look at it. Id. On appeal, we

stated that the critical question was “not whether a reasonable officer would

have looked at the driver’s license to confirm the name and other identifying

information” but rather whether a reasonable officer could believe Blackwell was

the suspect. Id. at 304. We ruled that the officer was entitled to qualified

immunity, even if in hindsight he could have taken other reasonable actions to

determine Blackwell’s identity. Id.

Here, the HCADC told Zugg and Waldrop that they needed to retrieve

Harris, and the Forrest County Sheriff’s Office told Zugg and Waldrop that

Forrest County had all the necessary paperwork. Zugg and Waldrop’s reliance

on these statements to establish that Harris was the proper individual is

reasonable, even if they could have taken other reasonable actions to verify his

identity. See United States v. Walker, 960 F.2d 409, 416 (5th Cir. 1992) (“The

arresting officer does not have to have personal knowledge of all the facts

constituting probable cause; it can rest upon the collective knowledge of the

police when there is communication between them.”) (internal quotation marks

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omitted); see also United States v. Holland, 438 F.2d 887, 888 (6th Cir. 1971)

(“The fact that the officers did not have physical possession of the warrant at the

time of the arrest is of no consequence to the validity of the arrest.”).

Harris also makes much of the fact that Zugg and Waldrop violated

several general orders of the Sheriff’s office by not having the paperwork with

them and ensuring that they had the correct individual. The violation of a

general order, however, is not the same as a violation of the Constitution. See

Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (stating that

“even a negligent departure from established police procedure does not

necessarily signal violation of constitutional protections”); see also United States

v. De Leon-Reyna, 930 F.2d 396, 399-400 (5th Cir. 1991) (en banc) (finding no

Fourth Amendment violation when officer did not use “code word” policy when

reading license plate to dispatcher, resulting in mistaken detention of vehicle).

Therefore, Harris’s allegations that Zugg and Waldrop violated general orders

do not necessarily state a constitutional claim. As shown above, Zugg and

Waldrop’s actions were reasonable and do not create a right to relief under the

Fourth Amendment. That Zugg and Waldrop also violated internal policies does

not transform Harris’s claim into one of constitutional dimension.

Harris further argues that Cozzo v. Tangipahoa Parish Council-President

Government, 279 F.3d 273 (5th Cir. 2002), supports his claim that Zugg and

Waldrop were required by the Fourth Amendment to verify his identity. In

Cozzo, a deputy evicted the plaintiff from her home on the basis of a TRO that

did not actually require her eviction. Id. at 279. The deputy conceded he had

violated the Fourth Amendment, and the court’s analysis concerned the second

prong of the qualified immunity test. Id. at 284-85. There, the court ruled that

the jury was permitted to find that the deputy violated the plaintiff’s rights,

because the plaintiff actually pointed out to the deputy where he was misreading

the TRO. See id. at 285. Here, unlike Cozzo, Zugg and Waldrop did not have

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any exculpatory paperwork with them that would have exonerated Harris had

they considered it.

In sum, and taking Harris’s factual allegations as true, Harris has not

alleged that Zugg and Waldrop violated a clearly established constitutional

right. Probable cause existed for Harris’s arrest because Zugg and Waldrop

acted pursuant to a facially valid warrant and did not act unreasonably in doing

so, even though Harris was not ultimately the man named in the warrant.

Therefore, the district court correctly determined that Zugg and Waldrop were

entitled to qualified immunity on this claim, and we affirm that portion of the

district court’s decision.

b. Payne

With respect to Payne, Harris contends that Payne’s failure to present him

to a judicial officer within forty-eight hours of his arrival at the HCADC

constitutes a violation of the Fourth Amendment. The district court did not

specifically address this claim, but because it denied summary judgment to

Payne, we consider the claim on appeal.

To establish his Fourth Amendment claim against Payne, Harris relies on

Rule 6.03 of Mississippi’s Uniform Rules of Circuit and County Court Practice,

which states, in part:

Every person in custody shall be taken, without unnecessary delay

and within 48 hours of arrest, before a judicial officer or other

person authorized by statute for an initial appearance.

Upon the defendant’s initial appearance, the judicial officer or other

person authorized by statute shall ascertain the defendant’s true

name and address, and amend the formal charge if necessary to

reflect this information. The defendant shall be informed of the

charges against him/her and provided with a copy of the complaint.

Harris asserts that by not taking him to a judicial officer after his arrival at the

HCADC, Payne violated the Fourth Amendment. We disagree.

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The Mississippi Supreme Court has held that a violation of Rule 6.03 does

not necessarily equate to a Fourth Amendment violation. Lawrence v. State, 869

So. 2d 353, 355-56 (Miss. 2003) (en banc) (ruling that because arrest warrant

was issued within forty-eight hours of defendant’s arrest, failure to provide

initial appearance did not amount to Fourth Amendment violation). This

holding accords with Supreme Court precedent on the issue of initial

appearances. In Gerstein v. Pugh, the Court held that the Fourth Amendment

requires a state to “provide a fair and reliable determination of probable cause

as a condition for any significant pretrial restraint of liberty, and this

determination must be made by a judicial officer either before or promptly after

arrest.” 420 U.S. 103, 124-25 (1975) (footnotes omitted). The Court has also

stated that “since the probable cause standard for pretrial detention is the same

as that for arrest, a person arrested pursuant to a warrant issued by a

magistrate on a showing of probable[ ]cause is not constitutionally entitled to a

separate judicial determination that there is probable cause to detain him

pending trial.” Baker v. McCollan, 443 U.S. 137, 143 (1979).

Under these cases, the allegation that Payne did not provide Harris with

an initial appearance in violation of Rule 6.03 does not state a claim under the

Fourth Amendment. The grand jury determined that there was probable cause

that Donald Harris committed a crime when it indicted Donald Harris, and the

alias capias warrant was based on the indictment. As a result, probable cause

for Harris’s pretrial detention existed, and Harris was not constitutionally

entitled to a second determination of probable cause. Consequently, Harris’s

Fourth Amendment claim against Payne does not state a claim for a violation of

clearly established law, and the district court erred when it denied qualified

immunity to Payne on this claim. Therefore, we reverse that portion of the

district court’s decision.

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3. Fourteenth Amendment

Harris next asserts that Zugg, Waldrop, Rogers, and Payne violated his

rights under the Fourteenth Amendment by depriving him of his liberty without

due process of law. The district court determined that Zugg, Waldrop, and

Rogers were entitled to qualified immunity on this claim, but that Payne was

not.

The Supreme Court confronted a situation in which a plaintiff brought suit

for the violation of his due process rights after he was erroneously incarcerated

in Baker v. McCollan, 443 U.S. 137 (1979). In Baker, Leonard McCollan

obtained a duplicate of his brother Linnie’s driver’s license that was identical to

Linnie’s in all respects except that Leonard’s picture was on it. Id. at 140.

Leonard was then arrested on narcotics charges, but was booked and released

as Linnie. Id. at 140-41. Linnie was later stopped for running a red light. Id.

at 141. The police ran a routine warrant check and discovered the warrant for

Linnie. Id. Linnie spent three days in custody before the police compared his

appearance to the file photograph of Leonard and released him. Id. Linnie

brought suit for the violation of his rights under the Fourteenth Amendment.

Id. The Fifth Circuit determined that T.L. Baker, the sheriff, was not entitled

to qualified immunity because there was a question as to whether the procedures

that Baker instituted to identify detainees were reasonable. Id. at 141-42.

On appeal, the Supreme Court did not reach the issue of the

reasonableness of Baker’s procedures, instead holding that Linnie failed the first

step of the qualified immunity analysis by not alleging the violation of a clearly

established right under the United States Constitution. Id. at 143-44. Linnie

claimed that Baker deprived him of his liberty by intentionally failing to

investigate and determine that the wrong man had been imprisoned. Id. at 143.

The Supreme Court, however, stated that the Fourteenth Amendment does not

protect against all deprivations of liberty, but rather only those accomplished

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“without due process of law.” Id. at 145 (internal quotations marks omitted).

The Court went on to explain:

Given the requirements that arrest be made only on probable cause

and that one detained be accorded a speedy trial, we do not think a

sheriff executing an arrest warrant is required by the Constitution

to investigate independently every claim of innocence, whether the

claim is based on mistaken identity or a defense such as lack of

requisite intent. Nor is the official charged with maintaining

custody of the accused named in the warrant required by the

Constitution to perform an error-free investigation of such a claim.

The ultimate determination of such claims of innocence is placed in

the hands of the judge and the jury.

Id. at 145-46.

The Court, however, did not entirely shut the door on the possibility that

the erroneous detention of an innocent person could result in a constitutional

claim. Instead, the Court stated, “[o]bviously, one in [Linnie]’s position could not

be detained indefinitely in the face of repeated protests of innocence even though

the warrant under which he was arrested and detained met the standards of the

Fourth Amendment.” Id. at 144. The Court further stated, “[w]e may even

assume, arguendo, that, depending on what procedures the State affords

defendants following arrest and prior to actual trial, mere detention pursuant

to a valid warrant but in the face of repeated protests of innocence will after the

lapse of a certain amount of time deprive the accused of ‘liberty . . . without due

process of law.’” Id. at 145. The Court, however, did not elaborate further on

what circumstances might give rise to a due process violation.

The Court in Baker originally granted certiorari to determine whether an

allegation of negligence was sufficient to state a claim under § 1983, but it

ultimately did not reach that issue. Id. at 139-40. In a subsequent case, the

Court concluded that “the Due Process Clause is simply not implicated by a

negligent act of an official causing unintended loss of or injury to life, liberty, or

property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). The Fifth Circuit has

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had occasion to apply the principles in Baker and Daniels with respect to due

process claims arising from erroneous detentions or incarcerations.

In Sanchez v. Swyden, this court considered the case of Oscar Sanchez,

who was detained by police for twenty-six hours because his name and general

description matched those on a warrant from Tennessee. 139 F.3d 464, 465 (5th

Cir. 1998). Although the police were faxed further information several hours

after Sanchez’s detention that indicated that Sanchez was not the individual

sought, the police took no action until the judge at Sanchez’s probable cause

hearing ordered the police to confirm Sanchez’s identity, at which time he was

released. Id. at 465-66. We held that Sanchez’s allegations amounted to no

more than mere negligence and thus did not state a claim for the violation of a

clearly established constitutional right. Id. at 469.

Similarly, in Simmons v. McElveen, the plaintiff spent eight months in jail

after being identified as the assailant in an armed robbery, even though his

fingerprints did not match those of the assailant. 846 F.2d 337, 338-39 (5th Cir.

1988). This court held that, in hindsight, the police should have looked at the

fingerprints; however, the allegations of police misconduct did not exceed mere

negligence, which was not actionable. Id. at 339.

This court reached the opposite result in Sanders v. English, 950 F.2d

1152 (5th Cir. 1992). In Sanders, Floyd Sanders was arrested after being

identified as the assailant in an armed robbery. Id. at 1155-56. Curtis McCoy,

the arresting officer, subsequently received credible information that Sanders

was not the assailant but did not bring the information to the attention of the

police chief or the prosecutor. Id. at 1156-57. Sanders remained incarcerated

for fifty days as a result. Id. at 1158. We held that McCoy was not entitled to

qualified immunity on summary judgment because there was a fact issue as to

whether McCoy “failed to release [Sanders] even after [McCoy] knew (or should

have known) that Sanders had been misidentified.” Id. at 1162 (characterizing

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the facts as demonstrating that the officer “knowingly and willfully ignored

substantial exculpatory evidence”). We distinguished Baker by reasoning that

Baker dealt with the failure to take affirmative steps to investigate the suspect’s

innocence, rather than the failure to act on known information. Id. We held,

however, that Sheriff English, whose involvement in the case consisted of

hearing a few witnesses claim that Sanders was innocent, was entitled to

qualified immunity, as his actions in failing to investigate Sanders’s innocence

were at most negligent. Id. at 1159-60.

Taking all of these cases into account, allegations that an officer had

exculpatory information in his possession but did not take the affirmative step

of reviewing it are not sufficient to state a due process claim. See Sanchez, 139

F.3d at 469 (“That law enforcement officials were in possession of information

that exculpated Sanchez does not change [the qualified immunity] result.”)

Instead, as in Sanders, the plaintiff must demonstrate that the officer knew or

should have known that the plaintiff was wrongly detained.

This idea is consistent with the cases cited by Harris. In Gay v. Wall, the

Fourth Circuit held that claims that the officer had actual knowledge of the

defendant’s innocence, but continued to detain him, fall outside the limitation

of Baker and are actionable. 761 F.2d 175, 178-79 (4th Cir. 1985). Similarly, in

Cozzo, the officer who erroneously evicted the plaintiff pursuant to a TRO was

actually shown by the plaintiff that the TRO did not call for her eviction. 279

F.3d at 285. Therefore, the cases cited by Harris stand only for the proposition

that an officer’s actual knowledge of a suspect’s innocence can overcome the

limitation of Baker, which is consistent with the Fifth Circuit cases cited above.2

2

Harris also relies on Jones v. City of Jackson, 203 F.3d 875, 880-81 (5th Cir. 2000), in

which this court denied qualified immunity to a sheriff and his deputy when an individual was

wrongly incarcerated for nine months. While Jones does provide support for Harris’s

arguments, we find that the majority of precedent in the Fifth Circuit and Supreme Court

militates toward granting qualified immunity. The Jones opinion does not cite any of the

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Using the principles described above, we must conclude that Harris has

failed to state a claim against any of the individual defendants for the violation

of a clearly established constitutional right. As described in Baker, the

Constitution does not require police officers to “investigate independently every

claim of innocence . . . .” 443 U.S. at 145-46. Further, Harris’s one protest of

innocence to Zugg and Waldrop and one protest to Payne are not sufficient to fall

under the exception created in Baker for individuals who make “repeated

protests” of innocence.

Harris has also not alleged that any act by Zugg, Waldrop, Rogers, or

Payne rises beyond the level of negligence. See Sanchez, 139 F.3d at 469 (“[W]e

have required proof that the official’s actions went beyond mere negligence

before th[e] tort [of false imprisonment] takes on constitutional dimensions.”).

While all of the individuals had access to information that would have

exonerated Harris, none of them was aware of it, nor has Harris shown that any

of the individuals should have been aware of it. Under our precedent, these

allegations are insufficient to state a claim for the violation of a constitutional

right. As a result, all of the individual defendants, including Payne, are entitled

to qualified immunity. Therefore, we affirm the district court’s ruling as to

Zugg, Waldrop, and Rogers, but we reverse as to Payne.

B. Individual Defendants - State Claims

We now turn to Harris’s state law claims of negligence, gross negligence,

negligent infliction of emotional distress, intentional infliction of emotional

distress, malicious prosecution, assault and battery, false imprisonment and

arrest, defamation and slander, wrongful detention, and mistaken identity. The

district court granted summary judgment on the basis of the Mississippi Tort

Claims Act (“MTCA”) to Zugg, Waldrop, and Rogers, but not to Payne.

relevant precedent described above regarding due process and makes no attempt to explain or

distinguish it. Therefore, the Jones opinion is not persuasive in this instance.

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Pursuant to the MTCA,

(1) A governmental entity and its employees acting within the

course and scope of their employment or duties shall not be liable

for any claim:

***

(c) Arising out of any act or omission of an employee of a

governmental entity engaged in the performance or execution of

duties or activities relating to police or fire protection unless the

employee acted in reckless disregard of the safety and well-being of

any person not engaged in criminal activity at the time of

injury . . . .

MISS. CODE ANN. § 11-46-9. As used in this statute, “reckless disregard” has

been described by the Mississippi Supreme Court as “more than ordinary

negligence, but less than an intentional act.” City of Jackson v. Brister, 838 So.

2d 274, 280 (Miss. 2003); see also Titus v. Williams, 844 So. 2d 459, 468 (Miss.

2003) (stating that reckless disregard encompasses “willful and wanton” actions).

To meet this standard, the officer’s conduct must “evince[] not only some

appreciation of the unreasonable risk involved, but also a deliberate disregard

of that risk and the high probability of harm involved.” Maldonado v. Kelly, 768

So. 2d 906, 910-11 (Miss. 2000). The Mississippi Supreme Court has further

defined reckless disregard as a “conscious indifference to consequences,

amounting almost to a willingness that harm should follow.” Titus, 844 So. 2d

at 468 (internal quotation marks omitted). To avoid summary judgment, a

plaintiff must create a genuine issue of material fact that the officers “took

action that they knew would result or intended to result” in injury. Id.

On appeal, the parties do not dispute the definition of reckless disregard,

but instead argue over whether the actions of the individual defendants

constitute reckless disregard. As described above, the conduct of Zugg, Waldrop,

Rogers, and Payne, as alleged by Harris, does not rise above the level of

negligence. Under Mississippi law, the reckless disregard standard is not

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satisfied by conduct that is merely negligent. See City of Jackson, 838 So. 2d at

280. Consequently, the MTCA precludes a finding that the individual

defendants are liable for any state tort claims. Therefore, we affirm the grant

of summary judgment to Zugg, Waldrop, and Rogers, and we reverse the denial

of summary judgment to Payne.

C. Harrison County

Finally, Harris appeals the grant of summary judgment to Harrison

County. The district court dismissed Harris’s claims against Harrison County

because Harris had not set forth evidence of a policy or custom of Harrison

County that caused the deprivation of his rights. Harris does not contest that

he did not establish a policy or custom of Harrison County, but instead argues

that Harrison County is liable for Payne’s actions because he is a policymaker

for the county.

Normally, a governmental entity is not liable under § 1983 unless the

evidence establishes that a policy or custom of the government caused the

constitutional violation, and a single act by a government employee is often

insufficient to establish the requisite policy or custom. See Gelin v. Hous. Auth.

of New Orleans, 456 F.3d 525, 527 (5th Cir. 2006); Piotrowski v. City of Houston,

237 F.3d 567, 581 (5th Cir. 2001). However, the Fifth Circuit’s cases are clear

that “[a] single decision may create municipal liability if that decision [is] made

by a final policymaker responsible for that activity.” Woodard v. Andrus, 419

F.3d 348, 352 (5th Cir. 2005) (internal quotation marks omitted); see also Jett v.

Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246 (5th Cir. 1993). Further, this court

has held that “[s]heriffs in Mississippi are final policymakers with respect to all

law enforcement decisions made within their counties.” Brooks v. George

County, 84 F.3d 157, 165 (5th Cir. 1996). Therefore, Harrison County is liable

for Payne’s acts as Sheriff, because he is a final policymaker for Harrison

County, regardless of the existence of a policy or custom. Consequently, the

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district court did err in dismissing Harrison County while leaving Payne in the

case. However, as noted above, Harris’s allegations against Payne do not state

a claim for the violation of a constitutional right. Payne’s actions were, at most,

negligent, and therefore do not give rise to a constitutional claim. As a result,

there is no misconduct by Payne for which Harrison County can be held liable.

Therefore, we affirm the grant of summary judgment to Harrison County.

V. CONCLUSION

In sum, it is clear that the Harrison County system failed Harris at every

point, and the fact that a clearly innocent individual can be held for four months

without a court appearance or verification of his identity gives us great concern.

However, the actions of the individual defendants sued by Harris and involved

in this appeal amounted to no more than negligence, which is insufficient to

create a constitutional claim or to fall outside the protection of the MTCA.

Therefore, we AFFIRM the district court’s decision granting summary judgment

to Zugg, Waldrop, Rogers, and Harrison County. We REVERSE the denial of

summary judgment as to Payne.

AFFIRMED in part and REVERSED in part.

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DENNIS, Circuit Judge, concurring in the judgment:

I respectfully concur in the judgment. The majority reached

the right result in granting qualified immunity to all defendants.

I disagree with the majority in that the defendants did violate the

Fourth and Fourteenth Amendment rights in several respects as the

plaintiff alleges, but I agree with the majority in granting of

qualified immunity to all defendants, because those rights were not

clearly established at the time of the violations.

22