Connie McAllister v. DeSoto County, Mississippi, e

Case: 11-60482 Document: 00511841218 Page: 1 Date Filed: 05/01/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 1, 2012

No. 11-60482 Lyle W. Cayce

Clerk

CONNIE MCALLISTER,

Plaintiff–Appellant

v.

DESOTO COUNTY, MISSISSIPPI; JASON COLEMAN, In his individual

capacity; TARRA DAVIS, In her individual capacity,

Defendants–Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:09-CV-163

Before KING, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Connie Jo McAllister brought this action against two

Desoto County officers, Jason Coleman and Tarra Davis, asserting claims under

42 U.S.C. § 1983 for unlawful arrest in violation of her Fourth Amendment

rights. Plaintiff also asserted a state-law gross negligence claim against Desoto

County, Mississippi. The district court granted summary judgment in favor of

the Defendants–Appellees, finding that the two officers were entitled to qualified

*

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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No. 11-60482

immunity and that Desoto County was entitled to sovereign immunity pursuant

to the Mississippi Tort Claims Act. Plaintiff argues on appeal that the district

court erred in granting summary judgment in favor of the Defendants. For the

following reasons, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves the erroneous arrests of Plaintiff–Appellant Connie Jo

McAllister (“McAllister”) for the sale of cocaine due to mistaken identification.

Jason Coleman (“Coleman”), a narcotics officer with the Desoto County Sheriff’s

Department, and Tarra Davis (“Davis”), a narcotics officer with the Hernando

Police Department, were assigned to work for the Desoto County Metro

Narcotics Unit, an integrated unit of narcotics investigators. In February 2008,

Charlene Williams (“Williams”), a confidential informant,1 told Davis that she

could set up a narcotics transaction with “Connie Mac.” Due to the suspension

of Williams’ driver’s license, Davis assumed the role of undercover agent and

agreed to drive Williams to the location of the drug transactions. Given Davis’

undercover role, Coleman assumed the role of the case agent, who was

responsible for managing the investigation and preparing the case file that

would be sent to the District Attorney’s office.

In April and May 2008, Williams completed three narcotics transactions

with “Connie Mac” at a residence in Eudora, Mississippi. During the three drug

transactions, Williams wore audio and video recording devices. Williams

described “Connie Mac” as “short, heavyset,” and with short, dark hair.

Williams also testified that Davis saw “Connie Mac” during one of the drug

1

Williams had been arrested on drug charges and agreed to act as a law enforcement

informant.

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transactions.2 By running the tag number of a truck found at the Eudora

residence, the officers identified the drug dealer as “Connie McAllister.”

At some point during the investigation, the identifying information for

Plaintiff–Appellant McAllister, such as her date of birth and social security

number, became part of the criminal case file.3 There are disputed facts

regarding how McAllister’s information was placed in the case file. Coleman

testified that Davis gave McAllister’s information to him. Davis, however,

testified that she made no effort to identify “Connie Mac” and provided no such

information to Coleman. The officers’ supervisor, Lieutenant Jeremy Degan

(“Degan”), testified that McAllister’s information came from the Desoto County

Sheriff’s Department’s “Eagle System,” which is a database containing

information of persons who have been previously arrested or jailed. Because

McAllister had prior arrests, her information was in the Eagle System at the

time of the investigation.

In September 2008, Coleman sent the case file, containing McAllister’s

identification information, to the District Attorney’s office. Coleman and the

District Attorney presented the case to the grand jury, who returned an

indictment against “Connie McAllister” for one count of the sale of cocaine.

In September 2008, McAllister was arrested in Olive Branch, Mississippi,

for driving under the influence. She was taken into custody and transported to

the Desoto County jail in Hernando, Mississippi. While in custody, McAllister

was served with a warrant and an indictment for one count of the sale of cocaine.

After spending four days in jail, McAllister bonded out and was released.

2

Williams also testified that, shortly before the first drug transaction, Davis was

present during a photo lineup where Williams correctly identified Connie Faye McAllister as

the drug dealer. Davis denies that she participated in such a photo lineup with Williams.

3

McAllister is described as having short blond hair and a small build.

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In December 2008, while out on bail, McAllister was served with a warrant

and a second indictment for two additional counts of the sale of cocaine.

McAllister was arrested and transported to the Desoto County jail, where

Williams was also being held. McAllister told a jail officer that she was innocent

of the charges and that she had never met Williams. The officer decided to let

Williams identify McAllister. When the officer asked Williams if McAllister was

the suspect she bought cocaine from, Williams told the officer that McAllister

was “not the right girl” and that the drug dealer “didn’t look anything like”

McAllister. The officers at the jail contacted Coleman regarding the situation,

who reported to the jail. After speaking with Williams, McAllister, and his

supervisor, Coleman determined that McAllister was not the drug dealer.

Coleman told the officers at the jail to “cut [McAllister] loose,” and McAllister

was immediately released. The charges against McAllister were dismissed.

Connie Faye McAllister, the actual drug dealer, was subsequently arrested for

the three counts of the sale of cocaine.

On September 22, 2009, McAllister filed the instant lawsuit in the United

States District Court for the Northern District of Mississippi. In her amended

complaint, McAllister asserted claims against Coleman, Davis, and Desoto

County (collectively, the “Defendants”). She contended that her “arrests were

caused by the failure of Defendants Coleman and Davis to have any probable

cause before causing indictments to be issued against her.” McAllister asserted

claims under 42 U.S.C. § 1983 against Coleman and Davis, alleging that the

officers illegally arrested her in violation of her Fourth Amendment rights.

McAllister also asserted a gross negligence claim against Desoto County (the

“County”) pursuant to the Mississippi Tort Claims Act (the “MTCA” or “Act”),

alleging that the County was “liable for the gross negligence” of Coleman and

Davis.

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The Defendants individually filed motions for summary judgment.

Coleman and Davis argued that they were entitled to qualified immunity,

because McAllister had not established that they violated her constitutional

rights or that their actions were objectively unreasonable in light of clearly

established law. Moreover, Coleman and Davis contended that they were

protected under the independent intermediary doctrine, because the grand jury

issued the indictments and the officers did not knowingly falsify information to

that body. The County argued that it was entitled to sovereign immunity under

the MTCA.

McAllister filed briefs in opposition to the motions for summary judgment.

With regard to her claims against Coleman and Davis, McAllister argued that

the officers were not entitled to qualified immunity because the officers violated

her right to be free from arrest without probable cause and the officers did not

act in an objectively reasonable manner, but were “plainly incompetent.” With

regard to her claim against the County, McAllister argued that the County was

not entitled to sovereign immunity under the MTCA because Coleman and Davis

acted with “reckless disregard”for McAllister’s safety and well-being.

The district court granted the Defendants’ motions for summary judgment.

With regard to McAllister’s illegal arrest claims against Coleman and Davis, the

court explained that the officers “clearly had probable cause to arrest ‘Connie

Mac’ for selling cocaine on three occasions, as those incidents were set up and

monitored by law enforcement.” The court thus stated that the proper inquiry

under the Fourth Amendment was “whether a reasonable officer could believe

[that] Connie Jo McAllister was the drug-dealing ‘Connie Mac.’” The court

explained that it was reasonable for the officers to believe that “Connie Mac’s”

information would appear in the Eagle System, as many drug dealers have had

prior arrests. Thus, when McAllister’s information appeared in the database, it

was reasonable for the officers to believe that McAllister was the drug dealer.

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Furthermore, the district court stated that McAllister presented no evidence

that Davis or Coleman’s actions in the investigation were malicious or

“amounted to more than mere negligence.” Moreover, the court found that the

“breaks the causal chain” doctrine applied, which is where an “intermediary’s

decision breaks the chain of causation for false arrest, insulating the initiating

party” from liability. The court explained that the grand jury returned

indictments for McAllister and McAllister did not show that the actions of

Coleman or Davis tainted its deliberations. Based on this analysis, the court

held that Davis and Coleman were entitled to qualified immunity because

McAllister “failed to show a constitutional violation, that Defendants acted

unreasonably, or that the ‘breaks the causal chain’ doctrine should not apply.”

With regard to McAllister’s gross negligence claim against the County, the

court concluded that the County was entitled to sovereign immunity under the

discretionary function exemption of the MTCA. Based on Mississippi caselaw,

the court determined that the investigative decisions of Coleman and Davis

arose “from the performance of discretionary functions and involve[d] profoundly

difficult policy or judgment considerations.” The court reasoned that their duties

were not simply ministerial as “[n]o statute or mandatory procedures to be

followed have been cited or provided to the [c]ourt for the instigation of an

investigation.” Because the officers were performing discretionary functions, the

court concluded that the County was immune from liability under the Act.

McAllister timely appealed the district court’s judgment.

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court. Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337, 343 (5th Cir. 2007). Pursuant to Federal Rule of Civil Procedure

56(a), summary judgment is appropriate “if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A “genuine” dispute exists if, based on the evidence, a reasonable jury could

return a verdict for the nonmoving party. Hamilton v. Segue Software Inc., 232

F.3d 473, 477 (5th Cir. 2000). When reviewing a summary judgment, we “draw

all reasonable inferences in favor of the nonmoving party.” Turner, 476 F.3d at

343 (citations and internal quotation marks omitted).

B. Qualified Immunity

Section 1983 provides a cause of action against an individual who, acting

under color of state law, has deprived a person of a federally protected statutory

or constitutional right. See 42 U.S.C. § 1983. “The doctrine of qualified

immunity protects government officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “Qualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Id. The doctrine of qualified immunity “gives

government officials breathing room to make reasonable but mistaken

judgments, and protects all but the plainly incompetent or those who knowingly

violate the law.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012)

(citations and internal quotation marks omitted).

“A public official is entitled to qualified immunity unless the plaintiff

demonstrates that (1) the defendant violated the plaintiff’s constitutional rights

and (2) the defendant’s actions were objectively unreasonable in light of clearly

established law at the time of the violation.” Porter v. Epps, 659 F.3d 440, 445

(5th Cir. 2011) (citation omitted). The Supreme Court has stated that the courts

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may “exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

On appeal, McAllister first argues that the district court erred in applying

a substantive due process standard to her wrongful arrest claims, instead of the

proper Fourth Amendment standard of objective reasonableness. However, we

find that the district court correctly applied the Fourth Amendment’s standard

of objective reasonableness. The court clearly stated that McAllister “seeks to

recover against [Davis and Coleman] for arrest without probable cause pursuant

to the Fourth Amendment. ‘As applied to the qualified immunity inquiry, the

plaintiff must show that the officers could not have reasonably believed that they

had probable cause to arrest the plaintiff for any crime.’” (emphasis added).

Second, McAllister argues that, under this proper Fourth Amendment

standard, there are genuine issues of material fact regarding whether the

actions of Davis and Coleman were “objectively reasonable.” She asserts that “a

jury could find that there was no objectively reasonable basis upon which to

cause [her] arrest” and that therefore the arrests violated her Fourth

Amendment rights. Coleman and Davis argue on appeal that McAllister has not

alleged a violation of her Fourth Amendment rights, as the officers reasonably,

but mistakenly, believed that they had probable cause to arrest McAllister.

They point to the fact that McAllister conceded that this is merely a case of

mistaken identity.

In order to establish a Fourth Amendment violation for illegal arrest,

McAllister must show that the officers did not have probable cause to arrest

her.4 Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). “Probable

4

Ordinarily, in considering a challenge to a post-indictment arrest, we would evaluate

the arrest in light of the indictment. See Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)

(stating that a valid indictment “conclusively determines the existence of probable cause and

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cause exists ‘when the totality of the facts and circumstances within a police

officer’s knowledge at the moment of arrest are sufficient for a reasonable person

to conclude that the suspect had committed or was committing an offense.” Id.

at 655-56 (citation omitted). The district court was correct to note that, based

on the three set-up drug transactions with Williams, Coleman and Davis had

probable cause to arrest “Connie Mac” for the sale of cocaine.

The Supreme Court has instructed 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) (citation and internal quotation marks

omitted). In line with the Supreme Court’s precedent, we have stated that the

“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) (citing Hill, 401 U.S. 797). Thus, under this

standard, Coleman and Davis did not violate McAllister’s Fourth Amendment

rights if they reasonably believed that McAllister was “Connie Mac.”

McAllister asserts on appeal that the officers did not have an objectively

reasonable basis to conclude that she was the drug dealer “Connie Mac.” She

contends that the overwhelming evidence demonstrated that she was not the

real culprit. For instance, she asserts that Davis had gone to the Eudora

residence of “Connie Mac” for the drug transactions, Davis had seen the drug

dealer, and Davis had been present when Williams picked out the drug dealer

from a photo lineup. Therefore, McAllister contends that the officers had

requires issuance of an arrest warrant without further inquiry”). However, because McAllister

has argued that her indictment was improperly obtained by the investigating officers without

probable cause, we elect to examine whether there was probable cause to arrest McAllister

absent the indictment.

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knowledge of the appearance and of the correct address of the drug dealer.

Given this information, she asserts, they unreasonably believed that McAllister

was the drug dealer and unlawfully caused her arrest.

Construing the facts and inferences in favor of McAllister, as we must on

summary judgment, we conclude that the district court correctly determined

that it was objectively reasonable for Coleman and Davis to believe that

McAllister was the drug-dealing “Connie Mac.” At the location of the drug

transactions, the officers ran the license plate number of the truck at the

residence, which came back as belonging to “Connie McAllister.” Degan testified

that the officers searched for the name “Connie McAllister” in the Eagle System,

because “[i]t’s not uncommon for people who sell drugs to have had prior

arrests.” Thus, the officers reasonably believed that the drug dealer’s

information would appear in the database. Degan stated that, at the time of the

investigation, there was only one “Connie McAllister” in the Eagle

System—Plaintiff–Appellant McAllister, due to her prior misdemeanor arrests,

and not the actual drug dealer, Connie Faye McAllister. Thus, Coleman and

Davis reasonably believed that the Connie McAllister in the Eagle System was

the drug dealer.5 Furthermore, McAllister presented no evidence that either

Davis or Coleman intentionally or maliciously placed McAllister’s information

in the case file, knowing that she was not the drug dealer “Connie Mac.” Under

the circumstances, the officers reasonably, but mistakenly, believed that

McAllister was the “Connie Mac” involved in the drug transactions. See Hill,

401 U.S. at 804 (“[S]ufficient probability, not certainty, is the touchstone of

reasonableness under the Fourth Amendment and on the record before us the

officers’ mistake was understandable and the arrest a reasonable response to the

5

Whether Coleman or Davis placed the information from the Eagle System into the

case file is immaterial to our analysis.

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situation facing them at the time.”). McAllister has thus not demonstrated a

violation of her Fourth Amendment rights.6

Because McAllister has not alleged a constitutional violation, Coleman and

Davis are entitled to qualified immunity. Given this holding, we need not

address the alternate grounds that the district court relied upon in determining

that the officers were entitled to qualified immunity—that McAllister failed to

establish that the officers’ actions were objectively unreasonable in light of

clearly established law and that the independent intermediary doctrine did not

apply. In conclusion, we affirm the district court’s grant of summary judgment

in favor of Coleman and Davis on the basis of qualified immunity.

C. Sovereign Immunity under the MTCA

McAllister asserted a gross negligence claim against the County pursuant

to the MTCA. The MTCA waives sovereign immunity for claims for money

damages arising out of the torts of government entities and the torts of its

employees while acting within the course and scope of their employment. See

Miss. Code Ann. § 11-46-5(1). This waiver of immunity, however, is subject to

various exemptions, such as the law enforcement and discretionary function

exemptions. See Miss. Code Ann. § 11-46-9(1). The district court determined

that the County was entitled to sovereign immunity on McAllister’s gross

6

Furthermore, we have stated, albeit in unpublished opinions, that police investigatory

work that is simply negligent does not rise to the level of a Fourth Amendment constitutional

violation. See Harris v. Payne, 254 F. App’x 410, 411 (5th Cir. 2007) (“Although it is clear that

[plaintiff] should never have been incarcerated, there is no evidence that the actions of the

individual defendants amounted to more than negligence. As a result, [plaintiff] cannot

establish a constitutional violation [under the Fourth Amendment]. . . .”); Williams v. City of

Amory, Miss., 245 F. App’x 334, 335 (5th Cir. 2007) (affirming the dismissal of plaintiff’s

Fourth Amendment false arrest claim because the defendant police officer’s “negligence alone

was insufficient to establish a constitutional violation”).

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negligence claim based on the discretionary function exemption to liability. See

Miss. Code Ann. § 11-46-9(1)(d).7

On appeal, McAllister argues that the district court applied the wrong

legal standard. She asserts that the court erred in analyzing whether the

discretionary function exemption applied, and should have determined whether

the law enforcement exemption applied. See Miss. Code Ann. § 11-46-9(1)(c).8

McAllister’s argument is without merit. The Mississippi courts have held

that the exemptions in Section 11-46-9 of the MTCA “are disjunctive in nature,”

and thus, “where any of the immunities enumerated in [S]ection 11-4[6]-9(1)

apply, the government is completely immune from the claims arising from the

act or omission complained of.” Knight v. Miss. Transp. Comm’n, 10 So. 3d 962,

971 (Miss. Ct. App. 2009) (citations and internal quotation marks omitted); see

City of Jackson v. Doe, 68 So. 3d 1285, 1289 (Miss. 2011) (“Because the City

qualifies for immunity under subsection (d), the conditions for immunity under

subsection (v) are irrelevant.”); Estate of Carr v. City of Ruleville, 5 So. 3d 455,

458 (Miss. Ct. App. 2008) (finding that, “[b]ecause the trial court [correctly]

determined that the City was entitled to the discretionary function immunity,”

the court need not address “whether the City was immune under the police

protection provision”). Therefore, contrary to McAllister’s contention, the district

court was not required to determine whether the County was entitled to law

enforcement immunity. Because the court determined that the County was

7

This exemption provides that there shall be no liability for any claim “[b]ased upon

the exercise or performance or the failure to exercise or perform a discretionary function or

duty on the part of a governmental entity or employee thereof, whether or not the discretion

be abused.” Miss. Code Ann. § 11-46-9(1)(d).

8

This exemption provides that there shall be no liability for any claim “[a]rising 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(1)(c).

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immune under the discretionary function exemption, the court was correct to

note that “no further analysis is necessary.”

For the reasons stated in the district court’s opinion, we conclude that the

actions of Coleman and Davis fall within the discretionary function exemption

of the Act and, therefore, that the County is entitled to sovereign immunity.

Thus, we hold that the district court properly granted summary judgment in

favor of the County on McAllister’s state-law gross negligence claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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