Opposition Brief — Brooks v. George County

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No. 96-267 | |

IN THE i i)

Supreme Court of the United States sep ie joo,

OCTOBER TERM, 1995

' CLERK

ROBERT W. BROOKS, Le

Petitioner,

Vv. ’

GEORGI © OUNTY, MISSISSIPPI;

EUGENE HOWELL, Individually and in His Official Capacity

as Sheriff of George County, Mississippi;

EARL KOSKELA Individually and in His Official Capacity as

District Attorney; WILBUR WARD, Individually and in His

Official Capacity as Circuit Clerk of George County Mississippi;

DON PARIMON, JAMES COOPER AND GEORGE MILLER,

Individually and in Their Official Capacities as

Deputy Sheriffs of George County, Mississippi;

BOARD OF SUPERVISORS OF GEORGE COUNTY, MISSISSIPPI,

BEING NORMAN SEDRICK HOWELL, LARRY HAVARD,

RALPH FAIRLEY, R. WAYNE CHRISTIAN AND

CLYDE W. EUBANKS, SR., Individually and in Their Official

Capacities as Supervisors for George County, Mississippi;

UNITED STATES FIDELITY AND GUARANTY COMPANY,

a Corporation; and UNITED FIRE CASUALTY COMPANY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DAN H. FAIRLY

WALTER D. WILLSON

Counsel of Record

WELLS MARBLE & HuRST, PLLC

400 Lamar Life Building

Post Office Box 131

Jackson, Mississippi 39205-0131

Telephone: 601/355-8321

Attorneys for Respondents

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LIST OF INTERESTED PARTIES

The undersigned counsel of record for George County,

Mississippi, Eugene Howell, Sheriff of George County,

Mississippi, James Cooper and George Miller, Deputy Sheriffs

of George County, Mississippi, and the George County Board

of Supervisors, certify that the following listed persons or

entities have an interest in the outcome of this case.

1. Robert W. Brooks, Appellee and Cross-

Appellant

2. George County, Mississippi, Appellant and

Cross-Appellee

3. Eugene Howell, Sheriff of George County,

Mississippi, Appellant and Cross-Appellee

4. James Cooper, Deputy Sheriff of George

County, Mississippi, Appellant and Cross-

Appellee

a George Miller, Deputy Sheriff of George

County, Mississippi, Appellant and Cross-

Appellee

6. Don Parimon, Deputy Sheriff of George

County, Mississippi, Cross-Appellee

7. Earl Koskela, District Attorney, Nineteenth

Judicial District, Cross-Appellee

10.

11.

12.

13.

14.

15.

16.

17.

18.

Wilbur Ward, Circuit Clerk of George County,

Mississippi, Cross-Appellee

William T. Bailey, Sr., Cross-Appellee

Board of Supervisors of George County,

Mississippi, Cross-Appellee

Larry Havard, Member, Board of Supervisors of

George County, Mississippi, Cross-Appellee

Norman Sedrick Howell, Member, Board of

Supervisors of George County, Mississippi,

Cross-Appellee

Ralph Fairly, Member, Board of Supervisors of

George County, Mississippi, Cross-Appellee

R. Wayne Christian, Member, Board of

Supervisors of George County, Mississippi,

Cross-Appellee

Clyde W. Eubanks, Sr., Member, Board of

Supervisors of George County, Mississippi,

Cross-Appellee

United States Fidelity and Guaranty Company,

Cross-Appellee

United Fire and Casualty Company, Cross-

Appellee

David C. Frazier, attorney for Robert W.

Brooks

19.

20.

21.

22.

23.

24.

David A. Roberts, attorney for Robert W.

Brooks

Roy W. Pike, attorney for Robert W. Brooks

Dan H. Fairly, Walter D. Willson and Wells

Marble & Hurst, attorneys for George County,

Mississippi, Eugene Howell, James Cooper,

George Miller and Don Parimon

Gerald A. Dickerson, attorney for Board of

Supervisors of George County, Mississippi

Geoffrey Morgan, attorney for Earl Koskela and

Wilbur Ward

American Justice Insurance Reciprocal

PAGE

LIST OF INTERESTED PERSONS ................. i

Se Ga I a oe oc bk Wee au dn seen iv

TABLE OF CITED AUTHORITIES ............... Vv

STATEMENT OF JURISDICTION ................ l

7 yo: gg gs Ce! EP emcee l

REE cs ex Sica ce eee ae ec cares 5

I. The Fifth Circuit's Opinion Does Not

Conflict With the Decisions of Other

Courts and/or The Thirteenth Amendment

to the United States Constitution ............. 7

Il. The Fifth Circuit Correctly Ruled

That No Legitimately-Recognized

Property Interest Protected By the

Due Process Clause of the Fourteenth

Amendment Exists for Consensual Work

Performed on Private Property ............... 21

Il. The Fifth Circuit Correctly Held That

Sheriff Howell Had No Duty Under

Mississippi Law to Periodically Ascertain

Brooks’ Status as a Pretrial Detainee .......... 26

CRITI 5005 kab oes Week e eee cA Uh eae Kees 30

Cases

Abbott v. Gould, Inc., 443 N.W.2d 591 (Neb. 1989) ... 21

Anderson v. Creighton, 107 S.Ct. 3034 (1987) ....... 10

Baker v. McCollan, 99 S.Ct. 2689 (1979) ........ 25, 27

Barrett v. Miller, 599 So.2d 559 (Miss. 1992) ..... 21, 22

Bell v. Wolff, 496 F.2d 1252

(Oth Cir. 1974) «5 ows cece eee cee ss 7, 9, 10, 20

Borror v. White, 377 F.Supp. 181

(W.D. Va. 1974) . 0... c ccc ee eens 25

Braxton v. U.S., 111 S.Ct. 1854 (1991) ..........---- 7

Brooks v. George County, 84 F.3d 157

(Sth Cir. 1996) on i ce eee eee eees 5

Buckey v. County of Los Angeles, 968 F.2d 791

(Sth Gir. 199Z) .. wwe cee cee eee ees 24

Butler v. Perry, 36 S.Ct. 258 (1916) .........---+--- 9

California v. Hodari, 111 S.Ct. 1547 (1991) ...... 28, 29

Clark v. Link, 855 F.2d 156 (4th Cir. 1988) .......... 22

S (continued) PAGE

Daniels v. Williams, 106 S.Ct. 662 (1986) ...... 23, 24, 25

Davidson v. Cannon, 106 S.Ct. 668

| BR ar ee Ay ere ay a 24

Davis v. Scherer, 104 S.Ct. 3012 (1984) ............ 23

Duckett v. City of Cedar Park, Texas,

DOO Fe AFA CHU Ge, BOUED oc cece vacvvees 27

Durham v. U.S., 91 §.Ct. 858 (1971)... 2... ee ee 5

Ellis v. Dixon, 75 S.Ct. 850 (1955) ................ 23

Garcia v. Reeves County, Texas, 32 F.3d 200

DOPE. ox bcs SS alaee whch c cu eneen? 22

Gregory v. City of Rogers, Arkansas, 974 F.2d 1006

gt | Peron er eon re 24, 25

Harlow v. Fitzgerald, 102 §.Ct. 2727 (1982) ......... 10

Hull v. City of Duncanville, 678 F.2d 582

oe | eR nies yy 26

Justice v. Dennis, 834 F.2d 380 (4th Cir. 1987) ....... 22

Mitchell v. Forsythe, 105 S.Ct. 2806 (1985) ......... 10

Murray v. Miss. Dept. of Corrections, 911 F.2d 1167

cole B. PPTe Tere errr ery errr ree 8

TABLE OF CITED AUTHORITIES (continued) PAGE

Plaisance v. Phelps, 845 F.2d 107

ee eT eer Te Tere eee ee eee 8

Porter v. City of Detroit, 639 F.Supp. 589

& eS Re rerrerrr Tyee 25

Rochin v. California, 72 S.Ct. 205 (1952) ........... 25

Terry v. Ohio, 88 S.Ct. 1868 (1968) ............... 28

Turner v. Unification Church, 473 F.Supp. 367

es ahs CD vba a Ne send ean 8, 20

U.S. v. Mendenhall, 100 S.Ct. 1870 (1980) ....... 28, 29

United States v. Kozminski, 108 §.Ct. 2751

SEE Sc eca ca Wah aces e Welene 0° 7, 11, 13, 20

United States v. Shackney, 333 F.2d 475

Ee. SNE Ss sacice pe Raed s aes waa ss 9, 13, 19

Watson v. Graves, 909 F.2d 1549

DICTED ie Os Wits ohio sin Wan BN Ws 8, 9, 14

Wendt v. Lynaugh, 841 F.2d 619

Li oa b's nia nated a ewh ban es 8

ABLE OF A (continued) PAGE

Conetinition § 1 Rul

Thirteenth Amendment ......... 4, 5, 7, 8, 10, 18, 19, 20

Fourteenth Amendment .......... 4, 5, 21, 22, 23, 24, 25

Be ae, EEE ok 508 4 hg ve eee iN ae eee |

EE 5 Fhe cca eR OR aas See ee |

FE Oe Beans eet r. od Meg % 4 Oe One 1

gk Ca | Bee 1, 21, 22, 24, 25, 26, 29

Miss. Code Ann. §47-1-13 (1972) ......... 18, 22, 23, 25

Miss. Code Ann. §47-1-21 (Rev. 1993) ........... 23, 26

Miss. Code Ann. §97-9-37 (Supp. 1996) ............ 29

Mississippi Constitution Art. 10 §226 .............. 22

POI Gan RS. os SESS eae te se a eee 5, 6

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Stat t of Jurisdicti

The district court had subject matter jurisdiction of this

matter, pursuant to 28 U.S.C. §1331, inasmuch as the claims

and cause of action arose under and pursuant to the laws of the

United States, specifically, 42 U.S.C. §1983. The United States

Court of Appeals for the Fifth Circuit had jurisdiction of the

appeal pursuant to 28 U.S.C. §1291, since a final judgment and

an amended final judgment were entered on June 20, 1994, and

July 7, 1994, respectively. This Court has jurisdiction to

entertain the instant petition for writ of certiorari pursuant to 28

U.S.C. §1254(1).

Statement of the Case

Robert W. Brooks (Brooks) was initially indicted by a

grand jury of George County, Mississippi on October 29, 1990,

for the separate offenses of grand larceny and felony burglary.’

At the time the indictments were returned and the capias issued

for his arrest, Brooks, out on bond, had fled the state of

Mississippi and was located in Virginia. Brooks was thereafter

arrested by law enforcement authorities in the state of Virginia

who notified the George County, Mississippi Sheriffs office of

his arrest. Between the indictments and his arrest, another

felony warrant issued for Brooks on the charge of automobile

theft. (R.Vol.[Xp.422). Eugene Howell, Sheriff of George

County, Mississippi (Sheriff Howell), traveled to the state of

"Brooks had previously pled guilty to felony burglary on December 9, 1986,

in the state of Virginia, as a result of which he was sentenced to three years in

prison. (R. Vol.IIp.427).

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Virginia and arrested Brooks on the auto theft charge, and re-

turned him to the state of Mississippi. (R. Vol. [IXp.422-423).

On January 21, 1991, Brooks was incarcerated in the George

County jail. (R. Vol. VIIIp.168). Brooks was arraigned on the

indictments for grand larceny and felony burglary on January

28, 1991. (R.Vol. VIp.1580-1582; Vol. IXp.430).

Without notice to anyone, on February 4, 1991, by order

of the Circuit Court of George County, the two felony

indictments returned against Brooks were dismissed by an order

of nolle prosequi. The order of nolle prosequi was presented to

the court by the Assistant District Attorney, Gary Evans, and

was executed by Circuit Judge Clinton E. Lockard.

(R.Vol.IXp.431). This transaction took place in Judge

Lockard’s chambers in Jackson County, Mississippi. The order

was then transmitted to the Circuit Clerk of George County and

placed in Brooks’ court file. (R. Vol. [Xp.432). Brooks was not

notified of the order of nolle prosequi; nor were Sheriff Howell

or his Deputies. (R. Vol.[Xp.436,432). Brooks discovered the

entry of the order while perusing his court file on October 1,

1991. (R.Vol.Xp.607). Brooks presented a copy of the order

to Sheriff Howell, who immediately released him from jail.

(R. Vol.Xp.607).

In March, 1991, during the time period in which he was

confined in the George County jail, Brooks requested and was

granted trusty status. (R.Vol.[Xp.442,608). Brooks

specifically asked that he be made a trusty. (R. Vol.Xp.689).

As @ trusty, Brooks was not locked down in his cell, but was,

instead, allowed the freedom to roam in and out of his cell,

Sheriff Howell's office, the jail, and the surrounding grounds

area. (R.Vol.[Xp.447). Brooks even used Sheriff Howell's

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personal shower, not the shower in the common area used by

other inmates. (R.Vol.VIIIp.280). While incarcerated,

Brooks performed, at his own request, various services for

Sheriff Howell, George County and others, including several

charitable or benevolent organizations, such as the Red Cross,

a local VFW Post, an area Little League ballpark, and the

George County Community Work Center, among others.

(R. Vol. [Xp.492;Vol.Xp.612,620). Brooks performed these

services on public property as well as private property. Brooks

performed these services for two reasons. First and foremost,

he was able to secure his release from jail during the day.

(R. Vol.Xp.609). Secondly, Brooks earned extra money by

working on the outside. (R. Vol. VIIIp.276). Brooks was not

compensated for those services he performed on public

property, but was, in several instances, paid money or received

property and/or goods in exchange for those services he

performed on private property. (R. Vol. VIIIp.275). The servi-

tude of Brooks on each and every occasion, was entirely

voluntary and was accomplished at his own request in order to

secure his release from confinement. (R. Vol. Xp.688-689,694-

695).

Shortly after his release from confinement, Brooks filed

a complaint in the United States District Court for the Southern

District of Mississippi, Southern Division, on July 1, 1992,

alleging various and sundry violations of his civil rights, seeking

$6,500,000 in damages. (R.Vol.Ip.1). During the discovery

phase, Brooks filed an amended complaint on March 29, 1993,

adding several additional parties and increasing the amount he

demanded to $17,000,000. (R. Vol. IIp.392).

4

On motions for summary judgment filed by all parties,

the lower court denied Brooks’ motion for partial summary

judgment in its entirety, but granted, in part, Respondents’

motion for summary judgment with respect to Brooks’ claim of

unlawful incarceration, Brooks’ pendent state law claims of

negligence and false imprisonment, and Brooks’ claim for

punitive damages in Respondents’ official capacities. (R. Vol. VI

p.1608,1646).

After a five-day trial, the jury returned a verdict for

Brooks on April 26, 1994, against Sheriff Howell, James

Cooper and George Miller, Deputy Sheriffs of George County,

(the Deputies), and George County, awarding compensatory

damages in the amount of $70,000, $50,000 of which

represented damages concerning Brooks’ claim of involuntary

servitude under the Thirteenth Amendment, and $20,000

representing lost wages in connection with Brooks' due process

claim under the Fourteenth Amendment. (R. Vol. VIIp.1763).

The following date, in a bifurcated proceeding, the jury awarded

punitive damages against Sheriff Howell and Deputy Miller in

their individual capacities in the amount of $5,000 and $500, re-

spectively. (R.Vol.VIIp.1770). A judgment was entered

against Sheriff Howell and his Deputies on June 20, 1994.

(R. Vol. VIIp.1777). An amended judgment was thereafter

entered on July 7, 1994, to include George County as a

judgment debtor. (R. Vol. VIIp. 1809).

Respondents timely filed a notice of appeal on

September 6, 1994, thereby perfecting their appeal to the

United States Court of Appeals for the Fifth Circuit.

(R. Vol. VIip.1926). Brooks then filed a cross-appeal with

respect to the district court's granting of partial summary

5

judgment regarding his claim of unlawful incarceration, his

pendent state law claims and punitive damages in Respondents’

official capacities, and full summary judgment to the other

litigants on each of Brooks’ claims. (R. Vol. VIIp.1935).

This matter was argued orally before the Fifth Circuit on

November 6, 1995. Several months later, the Fifth Circuit

rendered its opinion, which reversed and rendered the jury

award premised upon involuntary servitude under the Thirteenth

Amendment, and reversed and rendered that portion of the jury

award concerning work on private property under the

Fourteenth Amendment. The Fifth Circuit affirmed the district

court's granting of summary judgment on behalf of the

Respondents on Brooks’ claim of unlawful incarceration.

The opinion of the Fifth Circuit that gives rise to

Brooks' petition for writ of certiorari is published at 84 F.3d

157 (Sth Cir. 1996), and is reprinted in full in appendix A to

Brooks' petition for writ of certiorari.

Argument

As this Court is well-aware, the granting of a writ of

certiorari is not a matter of right, but is wholly discretionary and

will be granted only where there are special and important

reasons therefor. Sup.Ct.R. 10.1; Durham v. U.S., 91 S.Ct.

858, 860 (1971). The generally-accepted reasons for granting

a petition for writ of certiorari include the following:

(a) a United States court of appeals has

entered a decision in conflict with the decision

6

of another United States court of appeals on the

same important matter...;

(b} a state court of last resort has decided an

important federal question in a way that

conflicts with the decision of another state court

of last resort or of a United States court of

appeals;

(c) astate court or a United States court of

appeals has decided an important question of

federal law that has not been, but should b.-

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this Court.

Sup.Ct.R. 10.1.

A petition for a writ of certiorari is rarely, if ever,

granted when the asserted error consists of nothing more than

erroneous factual findings or the misapplication of a properly

stated rule of law. This is the essence of Brooks’ petition for

writ of certiorari in this case. Indeed, Brooks has utterly failed,

as will be more fully demonstrated hereinbelow, to demonstrate

even a colorable conflict between the Fifth Circuit and an

opinion of any other court of appeals or, for that matter, with

any ruling of this Court. Furthermore, Brooks’ contentions

before this Court do not involve an important question of

federal law, but, at best, involve nothing more than the

interpretation of Mississippi statutory and common law, and

whether a claim was stated thereunder.

7

In essence, Brooks is dissatisfied with the Fifth Circuit’s

opinion, which reversed and rendered most aspects of this case

in Respondents’ favor. Be that as it may, dissatisfaction with

the Fifth Circuit’s opinion does not warrant special review by

the United States Supreme Court. Braxton v. U.S., 111 S.Ct.

1854, 1857 (1991).

L

The Fifth Circuit's Opinion Does Not Conflict

With the Decisions of Other Courts and/or

The Thirteenth Amendment to the

United States Constitution

Brooks’ principal claim at trial and on appeal was that he

was coerced or forced to work while incarcerated in the George

County jail. Based upon this alleged compulsion, Brooks

claimed that Respondents allegedly violated his Thirteenth

Amendment right to be free from involuntary servitude. Having

failed to secure relief below, Brooks now contends that the Fifth

Circuit's opinion, as published at 84 F.3d 157 (Sth Cir. 1996),

directly conflicts with the Eighth Circuit's ruling in Bell v.

Wolff, 496 F.2d 1252 (8th Cir. 1974), and is supposedly

contrary to this Court's pronouncement in United States v.

Kozminski, 108 S.Ct. 2751 (1988). (Pet. at 13). Moreover,

Brooks contends that the Fifth Circuit's ruling concerning

involuntary servitude is directly contrary to the Thirteenth

Amendment to the United States Constitution. Id. at 13.

The Thirteenth Amendment to the United States

Constitution provides that "[nJeither slavery nor involuntary

servitude, except as punishment for a crime whereof the party

shall have been duly convicted, shall exist within the states or in

any place subject to their jurisdiction." U.S. Const., Amend

XI. The Fifth Circuit defines involuntary servitude as “an

action by the master causing the servant to have, or to believe

he has, no way to avoid continued service or confinement."

Watson v. Graves, 909 F.2d 1549, 1552 (Sth Cir. 1990).

"When the employee has a choice, even though it is a painful

one, there is no involuntary servitude. A showing of

compulsion is thus a prerequisite to proof of involuntary

servitude." Id. at 1552.7 The definition of involuntary servitude

articulated by the Fifth Circuit comports with that of other

jurisdictions. See, e.g., Tumer v. Unification Church, 473

F.Supp. 367 (D.C. R.I. 1978). Indeed, the Second Circuit

utilizes an identical standard, defining involuntary servitude

thusly:

But a holding in involuntary servitude means to

us action by the master causing the servant to

have, or to believe he has, no way to avoid

continued service or confinement, in Mr. Justice

*Brooks contends that Watson is inapplicable since Brooks was a pretrial

detainee and not a convicted felon. This is simply wrong. Those convicts

sentenced to hard labor and those persons convicted under laws which allow

for labor as a part the punishment lose their Thirteenth Amendment protection.

SEER ES SO Ee 08 Ea Oe 1168 (Sth Cir. 1990);

845 F.2d 107, 108 (Sth Cir. 1988); Wendt v. Lynaugh,

841 F 24619, 620-21 (Sth Cir. 1988). Pretrial detainees have and retain the

protection of the Thirteenth Amendment. Watson, although a convicted felon,

was not sentenced to hard labor, and, therefore, retained his Thirteenth

Amendment rights. Watson, 909 F.2d at 1552. Therefore, for purposes of a

Thirteenth Amendment analysis, Brooks and Watson are on equal footing, each

protected under the cloak of the Thirteenth Amendment.

el

9

Harlan's language, “superior and overpowering

force, constantly present and threatening,"

[citation omitted] not a situation where the

servant knows he has a choice between

continued service and freedom, even if the

master has led him to believe that the choice

may entail consequences that are exceedingly

bad.

United States v. Shackney, 333 F.2d 475, 486 (2d Cir. 1964).

Undoubtedly, it is difficult to prove a true case of coercion or

compulsion since, as this Court noted almost eighty years ago,

involuntary servitude is considered to be "something akin to

African slavery." Butler v. Perry, 36 S.Ct. 258, 259 (1916).

Brooks’ contentions that the Fifth Circuit's ruling in this

case and in Watson are contrary to Bell are misplaced. In fact,

a good argument can be made that Bell is not even applicable to

Brooks’ claims.

Like Brooks, Bell claimed he was subjected to involun-

tary servitude, because he was, he claimed, compelled to work

as a pretrial detainee. The warden offered to allow Bell to work

rather than be placed in administrative segregation. The plaintiff

was told he would not be paid for his work. Bell worked for a

short period, then refused to obey a work order, and was placed

mS paoegntdednmegsademaebanrtn Id.

award the plaintiff damages. Id. at 1254

The confusion over what Bell stands for is easily under-

stood. The trial court in Bell found that Bell was not a true

volunteer, based upon what he believed was a deficiency in the

10

work paper signed by the plaintiff. The warden did not appeal

this finding, “a conclusion unchallenged by the defendant." Id.

at 1254. Thus, from a precedential viewpoint, the case is

meaningless because, on the issue of whether the facts

constituted involuntary servitude, there was nothing before the

court. While at first blush the case seems to say that mere

confinement can be sufficient coercion, deeper analysis reveals

something much different. For one thing, Bell was placed in

administrative or punitive segregation. Brooks was never

placed in administrative segregation or, as it is sometimes

known, “solitary confinement." Moreover, it is important to

note what was not before the court in Bell. The appellate court

was not asked to review the record to determine whether there

was sufficient evidence to constitute a Thirteenth Amendment

violation. As stated, the court noted that the warden did not

appeal that lower court finding. Additionally, this decision pre-

dated the standard-bearing qualified immunity decisions of

Anderson v. Creighton, 107 S.Ct. 3034 (1987), Mitchell v.

Forsythe, 105 S.Ct. 2806 (1985), and Harlow v. Fitzgerald, 102

S.Ct. 2727 (1982).

If Bell impinges on the case at bar at all, it is more likely

favorable to the Respondents. “With reference to the peti-

tioner's charge the warden had forced him to work, . . . the

record supports, that a a result of warden's conference withthe

on tend aehec Remedi? MA, 12d, Chan en

can be said of Sheriff Howell and his Deputies in this case.

Brooks compares his situation to that of the claimants

in U.S. v. Kozminski, 108 S.Ct. 2751 (1988). In Kozminski,

this Court affirmed the conviction of Kozminski, who was

11

charged with a violation of a federal criminal statute. However,

the case reveals facts much more egregious than those

presented by Brooks. Kozminski took two men in their 60s

with intelligence quotients in the 60s and put them to work on

his dairy farm. The men, who were paid little or nothing, were

subjected to physical and verbal abuse. The defendant ordered

the men not to leave the farm. On several occasions, the men

did leave, were picked up and brought back. Kozminski

isolated the victims from relatives, friends and even other farm-

hands. Without proper food and nutrition, the men were found

in poor health. They were forced to live in squalid conditions.

Id. at 2755-2756. This factual scenario is diametrically opposite

of that experienced by Brooks. Kozminski reveals facts the

record in the instant case does not begin to approach.

It is intellectually dishonest to compare Brooks' situation

to that of the victims in Kozminski. The plaintiffs in Kozminski

were persons of less than normal intelligence who, in the

autumn of their lives, were placed on a farm, subjected to

physical and verbal abuse, were picked up and brought back

when they left the farm, were isolated from their relatives,

friends and other farm hands, were not properly fed or housed,

and were forced to live in horrible conditions and poor health.

Nothing even close to this was experienced by Brooks. As this

Court noted in Kozminski, "we hold only that the jury must be

instructed that compulsion of services by the use or threatened

use of physical or legal coercion is a necessary incident of a

condition of involuntary servitude." Id. at 2765. The Fifth

Circuit's opinion in this case is far from contrary to this Court's

ruling in Kozminski.

12

A review of the record in this case demonstrates that

Brooks was never forced or compelled to do anything. The

record is replete with instances where Brooks acknowledged

that he requested to work and was not forced, ordered or

compelled to work. For example, Brooks admitted on cross-

examination that he requested to work in order to get outside:

Nobody in jail wants to be in jail, do

they?

Right, no, sir.

So the getting out is something that's

done to make life easier for you, true?

Yes, sir.

see

And that's what you asked for in this

case, isn't it?

I asked to get outside, yes, sir.

You wanted to be a trusty.

Want to, yes, sir, get out of my cell.

All right. And you know-- you know

enough about jails and the way things

work in the jail that the sheriff isn't

going to just let you out and let you just

sit on the sidewalk, is he?

A No, sir.

DFA OH FF AY AN

++e%

Q Now, you testified earlier that your

brother, Dale went to Mr. Cooper and

asked him to let you get out and work

some.

Yes, sir.

Is that correct?

Yes, sir.

> OY

13

Did you ask Mr. Cooper?

Yes, sir. After Cooper come back there,

he asked me did I-- he said, would you

like to get out and do some work

around here and I said, yes, sir.

Okay. Mr. Cooper didn't make you do

that, did he?

No, sir.

You wanted to do it, didn't you?

Yes, sir, I wanted to get out of my cell.

And you wanted to get out and work.

I wanted to get out of my cell, you

know, if I had to work to do it, that's--

You were willing to do it.

Yes, sir. It wasn't that big of a deal to

you.

No, sir.

»> 0

DH FPAPAPY A

>

(R. Vol. Xp.688-689,694-695).

The above passages from Brooks’ own testimony

demonstrate that the evidence, at best, shows that Brooks, in a

desire to obtain freedom from his cell, asked to perform tasks

and jobs for Sheriff Howell and his Deputies. Given this

testimony, there is no conceivable scenario under which Brooks

could demonstrate the requisite force or compulsion required by

Watson, Kozminski, or Shackney. Interestingly enough,

Brooks’ court-appointed attorney testified that Brooks told him

he did not want to get out of jail, since Brooks presumably

wanted to accrue time in county jail toward his expected prison

sentence. Brooks’ counsel, William Bailey, was so surprised by

this announcement that he had Brooks put it in writing.

(R.Vol.Xp.779; Ex. D-12). While Brooks denied that this

1 SE a en ee ea

14

conversation took place, he did not dispute that the document

in question (Ex. D-12), which bore the words, "Don't want to

get out of jail," contained his signature. (R. Vol. Xp.698-700).

The position Brooks was in is no different from the

plaintiffs in Watson. Brooks requested to be let out of his cell

to do some work, sending his brother Dale, a fellow inmate, to

Deputy Cooper as his intermediary.’ (R. Vol.Xp.608,695). In

Watson, "...both (plaintiffs) testified they requested work

outside the jail and took work release whenever possible." Id.

at 1552. On direct examination at trial, Brooks testified that he

wanted to be a trusty and that he wanted to get outside.

(R.Vol.Xp.609). The same was true for the plaintiffs in

Watson. Brooks claimed, notwithstanding his acknowledgment

and admission that he requested all of his work, that it was

understood by him that, if he had not performed the labor, he

would have been returned to his cell. ("If we didn't do the

work, you know, I just had the basic understanding that I was

going back to my cell." (R. Vol. Vp.720).

For this Court to fully appreciate the setting in which

Brooks found himself, further examination of the record is

necessary. Brooks was allowed freedoms and privileges

broader and more liberal than any other inmate. Brooks took

his showers in the Sheriff's personal shower, not in the ones

used by the other inmates. (R. Vol. VIIIp.280). He would ride

*Brooks’ brother and alleged.co-conspirator, Dale Brooks, had previously pled

guilty to the offenses of felony burglary and grand larceny, and was in the

George County jail awaiting sentencing and transfer to the state penitentiary

at Parchman. (R. Vol. Vp.1228).

15

in a patrol car with narcotics agents while they were out

working. (R.Vol.Xp.704). He would ride with Deputy Tanner

while Tanner was out serving papers. (R.Vol.Xp.704-705). He

even rode some with a Lucedale city policy officer, Ronnie

Lambert. (R.Vol.Xp.705). Chief Deputy Miller and Brooks

lifted weights together at a makeshift weight room at the old

school superintendent's building across from courthouse.

(R. Vol. [Xp.376). Brooks "worked out" with weights two

nights per week. (R.Vol.Xp.706). Brooks was later provided

a key to the "weight room" so that he could, when Miller was

unavailable, lifts weights on his own. (R. Vol. [Xp.378). Miller

loaned Brooks his radio so Brooks would have music while he

was in his cell. (R. Vol. [Xp.380-381). Brooks and Miller even

went jogging together one time. (R. Vol. Xp.706).

The record is utterly silent as to any abuse, physical or

otherwise, subjected on Brooks to make him work. Not once

did Brooks imply or insinuate that physical, mental or emotional

harm was done to him to encourage him to work. More to the

point, Brooks never said that the Respondents slapped, kicked,

beat or struck him. He did not say he was cursed or belittled.

He does not claim that the Respondents mistreated him in any

way. Nothing is present in the record to show that Brooks

worked out of fear of abuse, mistreatment or physical or

emotional pain. The record does not reveal that Brooks worked

for any reason other than a personal desire to be outside his jail

cell. On each occasion when asked about why he worked,

Brooks stated that he did so because work gave him the

Opportunity to get out of the jail (e.g. "Q. Okay. Now from the

standpoint of the cookout issues, why would you do this? A.

So I could get out of jail". (R_Vol.Xp.621). "Q. All right.

16

Why would you want to be a trusty? A. To get out -- to get

outside. I didn't like the jail." (R. Vol. Xp.609).

Brooks had a choice. He may not have found the

options pleasant ones; nevertheless, he had a choice. Brooks

could have simply stayed in jail had he not wanted to work.

Brooks’ decision to work was his own. Nothing these

Respondents did or did not do motivated him to work. There

was no substantial evidence upon which to arrive at any other

conclusion, and the Fifth Circuit correctly so found. The above

facts demonstrate one simple, clear concept. Brooks had as free

a run of the George County jail as any outsider could imagine.

He enjoyed freedoms and liberties not had by others. He took

full advantage of all opportunities to gain freedom out of the

jail. Given this, it is incomprehensible that this environment,

this surrounding, this atmosphere could cause Brooks to believe

he had no way to avoid continuing to work. Reasonable minds

simply could not differ in this regard, and the Fifth Circuit

properly so held.

It requires no citation of authority to state that, during

his confinement, Brooks had only one right - to stay confined in

his cell (absent release on bond and subject to certain

constitutional restrictions not pertinent here). These

Respondents were under no obligation to allow Brooks the

freedoms he enjoyed. Moreover, Sheriff Howell was under no

duty at all to afford Brooks the opportunity to work outside his

cell. It offends and defies all notions of common sense to say

that Brooks somehow had the right to be outside the jail when,

as everyone believed, he was awaiting trial on two felony

indictments. Brooks claims his treatment was tantamount to

slavery because, he says, if he did not work, he would have been

17

placed in his cell. Such an argument presupposes that Brooks

had some right superior to that had by all other persons arrested

and awaiting trial. Implicit in Brooks’ argument is that he had

the right to be free and roam around when then the sole purpose

of his being incarcerated there was to hold him until his trial

This was the only place he had the right to be. Sheriff Howell

was not obliged to release Brooks or let him out of jail

Brooks, through his testimony, acknowledged this:

Q Let me see if I can say it where-- I think

you and I will understand each other.

The only-- you didn't have a right to be

a trusty; do you agree with that?

A Yes, sir.

Q The only thing that you had the right to

do was to stay in that cell. That's true,

isn't it?

A Yes, sir.

Q That is, if you couldn't make bond. Do

you agree with that?

A Yes, sir.

Q You know how this process works, if

you're arrested you go to jail and your

bond set and if you can make that bond

then you get out, correct?

A Yes, sir.

Q So that your getting out of jail is

something that's done as a favor to you.

Do you agree with that?

A Yes, sir.

(R. Vol.Xp.687-688).

18

Brooks’ counsel agreed that this was the only right

Brooks had. “Unfortunately, the sheriff was absolutely right, he

has a right to sit in jail or make a bond." (R_Vol.Xp.758).

Indeed, release from jail to work is a decision contingent upon

the discretion, and, to a large extent, the grace of the sheriff.

Sheriff Howell could have elected to allow or disallow Brooks

to work outside the jail under the authority of one or more

statutes. For example, Miss. Code Ann. §47-1-13 (1972),

provides that any person in jail awaiting trial for non-violent

offenses may be allowed to work on county public works, if the

sheriff deems it proper. The sheriff is not obligated, mandated,

or required to allow a prisoner to work.

Admittedly, this case is complicated by the fact that

during the time Brooks was out of jail working, no criminal

charges existed. However, for purposes of a Thirteenth

Amendment analysis, for purposes of determining whether

Brooks was compelled to work, for purposes of deciding

whether the facts of this case constitute involuntary servitude,

it simply makes no difference. First, it is uncontradicted that no

one holding Brooks, even Brooks himself, knew of the

existence and entry of the order of nolle prosequi. The trial

court so found. (R. Vol. VIp.1629). It would be unconscionable

and patently unjust to hold Sheriff Howell accountable with the

knowledge of the order when he had positively no notice of its

entry. Second, the trial court ruled, in deciding the numerous

motions for summary judgment, that Sheriff Howell had no

legal liability to Brooks because of the entry of the order.

(R.Vol. VIp. 1627-1629). How, then, could this one factor, the

entry of the order, convert this case from one not violative of

the Thirteenth Amendment to one that is, when both courts

below specifically held that the entry of the order imposed no

19

liability on the Respondents? To reverse the Fifth Circuit

regarding the Thirteenth Amendment feature of this case, this

Court will have to fashion a bizarre standard which would, not

only violate fundamental notions of fair play, but would also

violate sensible logic and basic human reasoning. This is not the

intention or purpose of the Thirteenth Amendment. The

Thirteenth Amendment proscribes a certain kind and type of

conduct by public officials. The record does not reveal the

force, compulsion or coercion necessary to support any such

claims. Because of Brooks’ failure to adduce any evidence at

trial to support a claim under the Thirteenth Amendment, the

Fifth Circuit correctly reversed and remanded this aspect of

Brooks' claims.

That Brooks completely failed to present a case

sufficient for the jury to consider is dramatically demonstrated

by comparison to other cases. In Abbott v. Gould, Inc., 443

N.W.2d 591 (Neb. 1989), the court held it not to be involuntary

servitude absent "the use or threat of physical force or legal

coercion to extract labor from an unwilling worker." Id. at 596.

There, employees claimed their employer intentionally deceived

them into believing exposure to certain chemicals was not

harmful when it actually was. The court rejected the plaintiffs’

Thirteenth Amendment claim. Similarly, in United States y.

Shackney, 333 F.2d 475 (2d Cir. 1964), the court held that an

employer, who recruited Mexicans to work on his farm in

Connecticut and threatened them unless they worked for an

agreed period of time, was not guilty under a federal criminal

Statute incorporating the Thirteenth Amendment provisions.

"While a credible threat of deportation may come close to the

line, it still leaves the employee with a choice... ." Id. at 486.

20

The plaintiff in Turmer_v. Unification Church, 473

F.Supp. 367 (D.C. R.I. 1978), claimed that Reverend Moon

induced her to join the church and then conspired to hold her in

involuntary servitude. She alleged constant threats forced her

to work more than 12 hours per day. The court rejected the

plaintiffs claims saying, “It is unclear whether [18 U.S.C.]

section 1853 should be expanded to include the type of involun-

tary servitude alleged in this case, namely psychological control

or dominance over the servant. raph rere er ORC

suaidbaink detain” Id. at 375,

One vital, critical and essential element is lacking in the

case presented by Brooks, as was present in Kozminski, supra,

and Bell, supra. The record fails to reveal that Brooks did not

desire to work, or that he refused or was unwilling to work, but

was made to do so. Suppose, for example, Brooks had been in

his cell early one morning and Sheriff Howell or one of his

Deputies came to Brooks' cell to get him to work. Suppose

further that Brooks, not willing to work, told the sheriff he

would not work. Suppose further, the sheriff had advised

Brooks that he could stay in his cell. (This is the feature of the

case that, according to Brooks, triggers the Thirteenth

Amendment violation.) Where does the compulsion arise?

Where is it demonstrated? Had this very scenario occurred,

which it did not, how could it be said that Brooks was

compelled to do anything, except, possibly, remain in his cell?

Absent is any evidence that Sheriff Howell threatened

to beat, kick, whip, kill or hurt Brooks to force him to work.

There is no oral or documentary testimony or evidence which

even intimates that the sheriff or any Respondent threatened

21

Brooks with isolation, administrative segregation, or to deny

him food or water, or threatened a deprivation or punishment at

all. Conspicuously silent from the record is any mention by any

witness of any suggestion or innuendo to Brooks by one of the

Respondents that, should he decline to work, he would suffer

retribution, punishment or violence. The utter failure of the

proof, including the absence of any coercion or compulsion,

mandates that this Court deny Brooks’ petition for writ of

certiorari on the issue of whether the Fifth Circuit’s opinion

conflicts with an opinion of the Eighth Circuit or this Court.

IL

The Fifth Circuit Correctly Ruled

That No Legitimately-Recognized

Property Interest Protected

By the Due Process Clause of the

Fourteenth Amendment Exists for

Ww ;

The United States Constitution does not create property

interests; consequently, Brooks must look to Mississippi law to

determine whether a constitutionally-cognizable property

interest in wages exists. Garcia v. Reeves County, Texas, 32

F.3d 200, 203 (Sth Cir. 1994). The Mississippi Supreme Court

had occasion to address this concept in Barrett v. Miller, 599

So.2d 559, 564 (Miss. 1992), wherein the court noted that 42

U.S.C. §1983 imposed liability "for the violation of rights

protected by the Constitution, not for violations of duties of

care arising out of tort law." Id. at 564. The court continued

by noting that the remedy for violation of a duty of care must be

sought in state court under traditional tort law principles. Id. at

22

564. The court concluded by reiterating the following well-

settled proposition:

While liability may be assessed under §1983

when the limits of privileged force are exceeded,

the threshold for that liability is higher than that

set for a normal tort action. Justice v. Dennis,

834 F.2d 380, 382 (4th Cir. 1987). A mere lack

of care by a state official does not deprive an

individual of life, liberty, or property under the

Fourteenth Amendment and create liability

under §1983.

Id. at 564. Simply put, if no federal rights are implicated, there

is no basis for any action under 42 U.S.C. §1983. Clark v.

Link, 855 F.2d 156, 161 (4th Cir. 1988)(a fundamental flaw

often encountered is the assumption that a §1983 action may be

based upon a violation of state law).

Brooks contended below that Miss. Code Ann.

§47-1-13 (1972), provided the basis for his right to

compensation for work on _ private property.‘

(R. Vol. VIp.1637). Along these lines, the lower court noted in

its summary judgment opinion that Sheriff Howell had a

“Brooks now cites Miss. Const. Art. 10 §226 in support of his position.

Technically speaking, Brooks’ contentions in this regard were not raised

and/or argued at either the district court or Fifth Circuit level. As such,

Brooks’ arguments concerning any claim under the Mississippi Constitution

for work performed on private property has been effectively waived or

abandoned. Ellis v. Dixon, 75 S.Ct. 850, 852 (1955)(questions not raised in

lower court proceedings were not open for consideration on petition for writ

of certiorari).

23

Statutory duty to keep a record of each prisoner and the days he

worked, pursuant to Miss. Code Ann. §47-1-21 (Rev. 1993).

(R. Vol. VIp.1634). Respondents submit that, even assuming

Sheriff Howell violated the express terms of Miss. Code Ann.

§47-1-13 (1972) and/or Miss. Code Ann. §47-1-21 (Rev.

1993), such violations do not establish or rise to the level of a

constitutional deprivation, since neither statute allows and/or

provides for a private cause of action. See, e.g., Davis v.

Scherer, 104 S.Ct. 3012, 3018 (1984) (no legitimate property

interest protected by the Fourteenth Amendment due process

clause is created by state statute not providing for private

avenue of redress). Couple that with the proposition that a

violation of state law does not automatically amount to

deprivation of a federal right, and it becomes readily apparent

that Brooks failed to prove any constitutional transgression as

a result of his working on private property based upon any

possible violation of these statutes.

This aspect of Brooks’ petition is further without merit

in view of the fact that the due process clause of the Fourteenth

Amendment is not implicated by a negligent or inadvertent act

of an official which causes an unintended loss of or injury to life,

liberty or property. Daniels v. Williams, 106 S.Ct. 662, 663

(1986). On the contrary, the focus of the due process clause is

to curb deliberate abuses of government power. Id. at 663. To

hold that negligent inaction, inattention or acquiescence

amounted to a constitutional deprivation within the meaning of

"Sheriff Howell positively and unequivocally testified that he was not aware.

at the time Brooks was working on private property, that such acts may violate

State law. (R. Vol. [Xp.473).

24

the Fourteenth Amendment would trivialize the centuries-old

principle of due process of law. Id. at 667. Even "self-

aggrandizing” or selfish motives are not actionable under the

due process clause if no deliberate intent to harm exists.

Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.

1992). In other words, the admission of Sheriff Howell and his

Deputies that Brooks worked on private property, at Brooks’

own request, even if to enhance or bolster Respondents’ own

financial or personal gain, is not the kind of conduct the

Fourteenth Amendment was designed to prevent.

(R. Vol. [Xp.473).

The evidence is uncontroverted that Sheriff Howell and

his Deputies did not know that it may violate state law to allow

inmates to work consensually on private property.

(R. Vol.[Xp.473). The evidence is equally undisputed that no

one, at any time, forced Brooks to work or do anything other

than stay in his cell to await his trial. Even assuming that

Respondents committed some tort cognizable under state law,

it does not rise to the level of a violation of the due process

clause merely because Sheriff Howell and his Deputies were

state officials. Baker v. McCollan, 99 S.Ct. 2689, 2695-96

(1979). The due process clause is simply not implicated by a

state actor's unintended or negligent deprivation of a pretrial

detainee's property interests. Davidson v. Cannon, 106 S.Ct.

668, 670 (1986). As such, many types of harm or injury,

though caused by a state actor, do not fall within the scope of

42 U.S.C. §1983, inasmuch as §1983 "does not turn the Four-

teenth Amendment into a font of tort law that supersedes the

tort systems already available under individual state laws."

Gregory v. City of Rogers, Arkansas, 974 F.2d 1006, 1009 (8th

Cir. 1992). More importantly, the due process clause of the

25

Fourteenth Amendment is not implicated by the lack of due care

of a public official causing an unintended injury to life, liberty or

property.® Id. at 1009; Daniels, 106 S.Ct. at 663.

In each instance, Brooks’ claims are premised solely

upon state law and/or a state statute, none of which provide any

implied private cause of action in Brooks, as correctly noted by

the Fifth Circuit. Regardless of whether Sheriff Howell and/or

his Deputies (1) failed to keep a record of each prisoner and the

days he worked; or (2) failed to pay Brooks' wages for work

performed on private property, these acts, even if true, do not

give rise to a private cause of action in Brooks, and, in par-

ticular, no statute gives Brooks a "right" to be paid for working

on private property. Even assuming there did exist some right

to compensation for consensual work on private property

under Miss. Code Ann. §47-1-13 (1972), the failure to pay

Brooks on a few of the jobs he performed does not create a

constitutional deprivation. That is, if Brooks had some right to

be paid for those services he performed on private property,

that right was not one secured by the Constitution or laws of

the United States within the meaning of 42 U.S.C. §1983.

Borror_v. White, 377 F.Supp. 181, 183 (W.D. Va.

“In order to state a substantive due process claim under the Fourteenth

Amendment, the “official's action must be such that it ‘shocks the conscience,’

or ‘offends the community's sense of fair play and decency.” Porter v. City of

Detroit, 639 F.Supp. 589, 593 (E.D. Mich. 1986); see also, Rochin v.

Califomia, 72 S.Ct. 205 (1952). That is, only conduct which is clearly

“outrageous” invokes the protections afforded by the due process clause. No

act of Sheriff Howell or his Deputies amounts to shocking conduct, nor is it so

patently offensive as to amount to a substantive due process deprivation under

the Constitution, as the Fifth Circuit correctly held.

26

1974)(petitioner's right to payment for his services as barber

was derived from the laws of the state of Virginia, and was not

a right secured by the Constitution).

In order to rise to the level of a constitutional claim, the

conduct of the public official or employee must be “sufficiently

egregious as to be constitutionally tortious." Hull v. City of

Duncanville, 678 F.2d 582, 584 (Sth Cir. 1982)(§1983 imposes

liability for violation of rights protected by the Constitution, not

for violations of state tort or statutory law). Allowing a pretrial

detainee to work on private property is patently innocuous from

a constitutional standpoint and is, at most, a mere violation of

state law. Clearly, no important question of federal law is

involved in this aspect of Brooks’ petition for writ of certiorari.

Til.

The Fifth Circuit Correctly Held That

Sheriff Howell Had No Duty Under

Mississippi Law to Periodically Ascertain

Brooks’ Stat Pretrial Detai

Brooks contends that the Fifth Circuit incorrectly ruled

that Sheriff Howell had no duty under state law to ascertain

Brooks’ status as a pretrial detainee, and that this is supposedly

an “important question of federal law." (Pet. at 16).

Specifically, Brooks contends that Miss. Code Ann. §47-1-21

(Rev. 1993), allegedly requires that Sheriff Howell "present for

approval for hiring a pretrial detainee to the board of

supervisors of the county," and that a review of Brooks' file for

this purpose would have revealed the dismissal of all charges.

(Pet. at 16). In addition, Brooks maintains that Sheriff Howell

and his Deputies had a duty to determine whether his criminal

27

charges had been dismissed, even though not dismissed in open

court in George County. Contrary to Brooks’ protestations,

none of the Respondents had any duty to periodically ascertain

or verify his status as a pretrial detainee under Mississippi law.

The Fifth Circuit recently clarified the continuing “duty”

owed to inmates who were initially incarcerated pursuant to a

valid capias or warrant in the case of Duckett v. City of Cedar

Park, Texas, 950 F.2d 272 (Sth Cir. 1992). There, the Fifth

Circuit stated that a police officer who arrests and incarcerates

someone pursuant to a valid warrant acted reasonably, even it

is later determined that the arrest was improper. Id. at 280.

More importantly, the court continued by noting that a law

enforcement official was under no duty to release an inmate

from confinement unless he ascertained "beyond a reasonable

doubt" that the inmate should no longer be confined. Id. at

279. Only by being notified of the entry of the order of

dismissal could these Respondents have known "beyond a

reasonable doubt" that Brooks should have been released.

In this case, Sheriff Howell and his Deputies lawfully,

properly and rightfully incarcerated Brooks in the George

County jail pursuant to a valid capias and indictment on two

felony charges. There is simply no dispute about this.

(R. Vol. VIp. 1580-1582; Vol.[Xp.430). Unlike the situation in

Baker v. McCollan, 99 S.Ct. 2689 (1979), no claim of

innocence was ever made by Brooks.’ Furthermore, there was

"The public policy considerations for imposing a duty to “independently

investigate” in a factual scenario like Baker are greater than they are in the

instant case. There, the sheriff had some notice of possible wrongful detention

28

no constitutional duty to “investigate independently" the

possibility of an order of dismissal. Because Sheriff Howell and

his Deputies were under no legal or constitutional duty to

determine whether an order of nolle prosequi existed, or to

routinely, regularly, or even occasionally survey and examine

the records of the Circuit Clerk of George County, Brooks’

claim in this regard must fail, and the Fifth Circuit properly

affirmed the district court's granting of summary judgment in

this respect. Nevertheless, even assuming that a duty were

imposed upon Sheriff Howell and his Deputies to make

themselves aware of the entry of the nolle prosequi order, their

failure to discover the existence of the order is tantamount to

nothing more than simple negligence. Simple negligence, as

previously discussed, does not give rise to a constitutional claim

as a matter of law.

Brooks contends that the Fifth Circuit’s reliance on

Valencia v. Wiggins, 981 F.2d 1440, 1449 (Sth Cir. 1993), is

allegedly contrary to this Court’s prior pronouncements in

California _v. Hodari, 111 S.Ct. 1547 (1991), US. v

Mendenhall, 100 S.Ct. 1870 (1980), and Terry v. Ohio, 88

S.Ct. 1868 (1968). Brooks’ contentions aside, Hodari,

Mendenhall and Terry are not relevant to any issue before the

Fifth Circuit or this Court since there was no dispute below

concerning Brooks’ initial arrest and incarceration under the

Fourth Amendment. Both Hodari and Mendenhall involved

questions concerning the claimant’s arrest and initial seizure,

while Terry addressed the issue of whether a law enforcement

due to the plaintiff's loud protestations of innocence. Here, Brooks never

claimed that he was innocent and remained totally silent (and ignorant) about

the nolle prosequi order.

29

officer was permitted to conduct a physical search of a person

for weapons when the officer had reasonable suspicion to

believe the detainee may be armed. Hodari, 111 S.Ct. at 1550;

Mendenhall, 100 S.Ct. at 1877; Terry, 88 S.Ct. at 1877-78.

To argue that Sheriff Howell and his Deputies had a

duty to regularly or routinely inspect the records of the Circuit

Clerk leads to the absurd. Such a duty would require a

tremendous amount of time and manpower.’ It would require

Sheriff Howell and his Deputies to read and comprehend all

court orders, some of which employ Latin phrases not of

common understanding, and may be subject to the lay

interpretation of Sheriff Howell and his Deputies. More

importantly, should Sheriff Howell and his Deputies misunder-

stand the substance of an order and mistakenly release a

dangerous inmate, they could be subjected to a criminal sanction

or independent tort liability. Miss. Code Ann. §97-9-37 (Supp.

1996).

Based on the foregoing, Sheriff Howell and his Deputies

respectfully submit that the Fifth Circuit properly rejected

Brooks’ claims concerning some non-existent duty allegedly

imposed upon Sheriff Howell and/or his Deputies.

“Suppose, for example, that Sheriff Howell and/or his deputies were required

to independently learn of the existence of all orders of dismissal. Under

Brooks’ analysis, a daily inspection would be required, since the moment

judicial authorization for an inmate's incarceration ceased to exist that inmate

would, according to Brooks, no longer be lawfully confined, thereby

purportedly subjecting the public official to liability under 42 U.S.C. §1983

and state tort law. This is simply not the law in Mississippi, and neither Sheriff

Howell nor his Deputies were under any duty or obligation to conduct the

routine review of court records that Brooks contends was required.

30

Conclusion

For all of the foregoing reasons, Respondents submit

that Brooks’ petition for writ of certiorari should be denied.