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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                        October 5, 2012

                                      No. 10-60962                       Lyle W. Cayce
                                                                              Clerk

HOSEY FLEMING,

                                   Plaintiff - Appellant

v.

TUNICA COUNTY MISSISSIPPI; K.C. HAMP, individually and in his official
capacity as the Sheriff of Tunica County; CHARLIE WRIGHT, individually
and in his official capacity as a Deputy Sheriff of Tunica County, Mississippi,

                                   Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:09-cv-11


Before DENNIS, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        This case involves plaintiff Hosey Fleming’s unlawful incarceration in the
Tunica County, Mississippi jail for four months, two weeks, and three days after
the state court suspended his prison sentence and instead placed him on
probation. Fleming brought suit under 42 U.S.C. § 1983 and the Mississippi
Tort Claims Act, MISS. CODE ANN . §§ 11-46-1 to -23, against Tunica County,


       * 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not be published and is not precedent except under the limited circumstances set forth in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. 10-60962

Sheriff K.C. Hamp, and Deputy Sheriff Charlie Wright. The district court
granted summary judgment for the defendants on all of Fleming’s claims.
      For the following reasons, we REVERSE the grant of summary judgment
on Fleming’s § 1983 claim against the County; AFFIRM the grant of summary
judgment on Fleming’s § 1983 claims against Sheriff Hamp and Deputy Sheriff
Wright in their individual capacities; and AFFIRM the dismissal of Fleming’s
Mississippi Tort Claims Act claim against the County.
                               BACKGROUND
      Fleming was arrested in July 2007 and charged with stealing $82.75 worth
of quarters from a casino slot machine in violation of the Mississippi Gaming
Control Act. See MISS. CODE ANN. §§ 75-76-301(c). Fleming remained in Tunica
County jail until October 15, 2007, when he pleaded guilty to the charge in state
court. At the same proceeding, the state court sentenced Fleming to one year in
prison, but then suspended his prison sentence and instead placed him on
supervised probation, subject to certain terms and conditions. Deputy Sheriff
Wright transported Fleming from the jail to the court proceeding and back. The
suspension of Fleming’s sentence and his probation conditions are detailed in the
court’s “Sentencing Judgment,” dated October 15, 2007. On October 18, 2007,
the clerk of the state court certified that the sentencing judgment had been
recorded.    On October 24, 2007, the clerk of the state court notified the
Mississippi Department of Corrections of its judgment in Fleming’s case.
However, Fleming was not released from Tunica County Jail until March 3,
2008, when he was visited by a parole officer from the Mississippi Department
of Corrections (MDOC). On October 23, 2008, the state court issued an order
closing the case because Fleming’s one-year probation period had ended. That
order reiterated that on October 15, 2007, Fleming’s one-year sentence had been
suspended and Fleming had instead been placed on one year of supervised
probation.

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       Fleming subsequently filed suit in federal district court against a number
of county and state defendants. The state defendants are not involved in this
appeal. For the purpose of his § 1983 claims, Fleming sued Tunica County and
Sheriff Hamp in his official capacity;1 as well as Sheriff Hamp and Deputy
Sheriff Wright in their individual capacities. For the purpose of his Mississippi
Tort Claims Act claim, Fleming sued the County as well as Sheriff Hamp and
Deputy Sheriff Wright in their official capacities.2
       The county defendants filed a motion for the district court to either dismiss
the suit for failure to state a claim, or grant summary judgment in their favor.
The district court granted summary judgment for the defendants. Fleming v.
Tunica Cnty., No. 2:09-cv-11, 2010 WL 4876690 (N.D. Miss. Nov. 23, 2010).
Regarding Fleming’s § 1983 claims, the district court agreed with the county
defendants that they were not liable for any violation of Fleming’s liberty
interests, because “on[c]e Fleming pled guilty on October 15, 2007, his status
changed as from that of a pretrial detainee in the custody of Tunica County to
that of a state inmate awaiting processing.” Id. at *3. Thus, the district court
concluded that because no county defendant had violated Fleming’s
constitutional rights, the county defendants were entitled to summary judgment.
Id. at *3-4. The district court also concluded that insofar as Fleming was
arguing that a violation of his rights resulted from Sheriff Hamp’s or Deputy
Sheriff Wright’s “failure to train or supervise [a] subordinate,” the record did not
“demonstrate a genuine issue of material fact” regarding such a claim. Id. at *3
n.5. Finally, the district court dismissed Fleming’s state law claim against the


       1
        Since “a suit against [an individual government official] in his official capacity is a suit
against the [municipality],” Jacobs v. West Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392 (5th Cir.
2000), we simply refer to this claim as being one against the County.
       2
         As with § 1983 cases, a suit under the Mississippi Tort Claims Act against a
government employee in his official capacity is the same as a lawsuit against the government
entity. See City of Jackson v. Harris, 44 So. 3d 927, 928 n.1 (Miss. 2010).

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County, reasoning that the Mississippi Tort Claims Act provided the County
with immunity against liability for the kind of claim that Fleming brought. Id.
at *4.
         Fleming filed a timely appeal.
                            STANDARD OF REVIEW
         “This Court reviews a district court’s grant of summary judgment de novo,
using the same standard as that applied by the district court.” Sanders-Burns
v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). Summary judgment should
be granted by the court “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The evidence should be viewed “in the light most favorable
to the nonmovant, drawing all reasonable inferences in the nonmovant’s favor.”
Sanders-Burns, 594 F.3d at 380 (quoting Riverwood Int’l Corp. v. Employers Ins.
of Wasau, 420 F.3d 378, 382 (5th Cir. 2005)).
                                    ANALYSIS
I.       Section 1983 claims
         “Section 1983 provides a cause of action for persons who have been
‘depriv[ed] of any rights, privileges, or immunities secured by the Constitution
and laws’ of the United States by the actions of a person or entity operating
under color of state law.” Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010)
(alteration in original) (quoting 42 U.S.C. § 1983). Here, Fleming’s claim is that
he was deprived of his constitutional rights by the county defendants when he
was unlawfully incarcerated beyond the authorized period in Tunica County jail.
         This court has recognized a due process right to timely release from
incarceration such that, for example, “[d]etention of a prisoner for over ‘thirty
days beyond the expiration of his sentence in the absence of a facially valid court
order or warrant constitutes a deprivation of due process.’” Porter v. Epps, 659
F.3d 440, 445 (5th Cir. 2011) (quoting Douthit v. Jones, 619 F.2d 527, 532 (5th

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Cir. 1980)); id. (stating that “[t]here is a [c]learly [e]stablished [r]ight to [t]imely
[r]elease from [p]rison”); see also Terry v. Hubert, 609 F.3d 757, 763 (5th Cir.
2010) (“[T]he due process clause is implicated in cases of continued incarceration
. . . beyond the term of a court-ordered sentence[] . . . .”). The more than four
months that Fleming was incarcerated beyond the term of his court-ordered
sentence thus clearly implicate the due process clause under our precedent. In
view of the constitutional right at issue, we turn to each of Fleming’s § 1983
claims.
      A.     The County
      We first address Fleming’s municipal liability claims against the County.
“To hold a municipality liable under § 1983 for the misconduct of an employee,
a plaintiff must show, in addition to a constitutional violation, that an official
policy promulgated by the municipality’s policymaker was the moving force
behind, or actual cause of, the constitutional injury.” James v. Harris Cnty., 577
F.3d 612, 617 (5th Cir. 2009). “To serve as a basis for § 1983 liability, the failure
to promulgate municipal policy must amount to ‘an intentional choice, not
merely an unintentionally negligent oversight.’” Evans v. City of Marlin, 986
F.2d 104, 108 (5th Cir. 1993) (quoting Rhyne v. Henderson Cnty., 973 F.2d 386,
392 (5th Cir. 1992)). “A failure to adopt a policy rises to the level of deliberate
indifference ‘when it is obvious that the likely consequences of not adopting a
policy will be a deprivation of civil rights.’” Id. (quoting Rhyne, 973 F.2d at 392).
Similarly, while “alleg[ations] that [a municipality’s] failure to provide training
to municipal employees resulted in [a] constitutional deprivation . . . are
cognizable under § 1983, they can only yield liability against a municipality
where [its] failure to train reflects deliberate indifference to the constitutional
rights of its inhabitants.” City of Canton v. Harris, 489 U.S. 378, 392 (1989).
      Fleming’s amended complaint alleges that Sheriff Hamp, in his official
capacity as county jailer, acted “intentional[ly]” and “in reckless disregard for

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[Fleming’s] constitutional rights” in “fail[ing] properly to train and supervise
[its] . . . employees” and “fail[ing] to promulgate and implement proper policies
to prevent the unlawful and unconstitutional detention of people who should be
released from detention,” and that, “[a]s a result . . . [Fleming] was deprived of
his freedom” in violation of the Fourteenth Amendment. The only ground on
which the County moved for summary judgment was that, as a matter of law,
Fleming suffered no violation of his constitutional rights. The County did not
argue to the district court that Sheriff Hamp had not acted with deliberate
indifference as a policymaker in failing to implement policies to avoid
unconstitutional detention or provide relevant training. When a defendant
moves for summary judgment on the basis that one element of a plaintiff’s claim
is not satisfied, this court will reverse or affirm the district court’s grant of
summary judgment based only on whether there is a genuine issue of material
fact with regard to that element, because courts “may not grant summary
judgment sua sponte on grounds not requested by the moving party.” Baker v.
Metro. Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004) (quoting John Deere Co.
v. Am. Nat’l Bank, 890 F.2d 1190, 1192 (5th Cir. 1987)) (citing FED. R. CIV. P.
56); see Fed. R. Civ. P. 56(f) (providing that a district court may “grant [summary
judgment] on grounds not raised by a party” only “[a]fter giving notice and a
reasonable time to respond”); see also Washburn v. Harvey, 504 F.3d 505, 509-10
(5th Cir. 2007) (reversing grant of summary judgment where a genuine issue of
material of fact existed as to the second element of the plaintiff’s prima facie
Rehabilitation Act claim, because it was the only ground on which the defendant
moved for summary judgment). “We do not consider whether [the plaintiff] has
established the remaining . . . elements of” his claim. Washburn, 504 F.3d at
510.
       Thus, the only question we consider as to the County is whether it has
succeeded in showing that there exists no genuine issue of material fact as to

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whether Fleming suffered a violation of his constitutional rights, such that the
County was entitled to judgment as a matter of law. We conclude that summary
judgment was not warranted because, contrary to the district court’s conclusion,
the record does not demonstrate that there existed a legal basis for Fleming’s
continued detention after the state court suspended his sentence and instead
placed him on probation. The County submits two unavailing arguments for
why the present record demonstrates that there was no violation of Fleming’s
constitutional rights as a matter of law. We address each in turn.
      First, the County argues that there were “conditions precedent” to
Fleming’s release that were not satisfied prior to March 3, 2008, and thus that
it could not release him until then. The County cites the October 15, 2007
sentencing judgment in support. However, it is clear that none of the conditions
listed in the judgment is a prerequisite to Fleming’s release. Instead, they are
simply requirements that Fleming was to be bound by while on probation.3

      3
          That document states in relevant part:
             Therefore, for said offense and on said plea of guilty, it is by the Court
      ORDERED AND ADJUDGED that the said HOSEY FLEMING, be and he is
      hereby sentenced to serve a term of ONE (1) YEAR in an institution under the
      supervision and control of the Mississippi Department of Corrections, and
      he/she [sic] is remanded into the custody of the Sheriff to await transportation.
              Provided, however, on recommendation of the prosecuting attorneys, and
      that the ends of justice and the best interest of the public and Defendant will
      be best served, the Court hereby suspends the execution of the above sentence
      for a period of ONE (1) YEAR. And, the Defendant is hereby placed under the
      supervision of the Department of Corrections, until the Court in term time, or
      the Judge in vacation, shall alter, extend, terminate or direct the enforcement
      of the above sentence, and the suspension of said sentence is based upon the
      following conditions:
               (a)   Defendant shall hereafter commit no offense against the laws of
                     this or any State of the United States or of the United States.
               (b)   Avoid injurious or vicious habits.
               (c)   Avoid persons and places of disreputable or harmful
                     character.
               (d)   Report to the Department of Corrections, as directed

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      The County also cites the judgment to suggest that Fleming was
“remanded into the custody of the Sheriff.” The judgment did state that Fleming



                   by it.
            (e)    Permit the Field Supervisor to visit him at home or
                   elsewhere.
            (f)    Work faithfully at suitable employment so far as
                   possible.
            (g)    Participate in the Mississippi Drug Identification
                   Program.
            (h)    Remain within the state of Mississippi unless
                   authorized to leave on proper application therefor.
            (i)    Support his dependents.
            (j)    That I do hereby waive extradition to the State of Mississippi
                   from any jurisdiction in or outside the United States where I may
                   be found, and also agree that I will not contest any effort by any
                   jurisdiction to return me to the State of Mississippi.
            (k)    And further, that Defendant pay all court costs within 18 months;
                   pay a supervisory fee each month to the Department of
                   Corrections, and report to his Probation Officer immediately upon
                   release from custody.
            (l)    Pay the sum of $250.00 to the Clerk of this Court to be deposited
                   to the general fund of TUNICA County, Mississippi, as a credit
                   to indigent defense expense within 18 months from this date.
            (m)    That the Defendant shall make full restitution to the
                   victim(s) within 12 months of release or as otherwise ordered.
            (n)    That the defendant has not made any false
                   statements under oath at his “guilty plea’ and/or
                   “sentencing” hearings before this Court.
            (o)    Defendant shall not own, possess or have under his control any
                   firearm or other deadly weapon as outlined by Federal and State
                   statutes.
            IT IS FURTHERED ORDERED AS FOLLOWS:
            1)     THAT THIS SENTENCE IMPOSED SHALL RUN
                   CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY
                   IMPOSED.
            2)     THAT THE DEFENDANT SHALL PAY A FINE OF ONE
                   HUNDRED DOLLARS ($100.00) WITHIN 18 MONTHS FROM
                   THIS DATE.

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                                  No. 10-60962

was “hereby sentenced to serve a term of ONE (1) YEAR . . . and . . . is remanded
into the custody of the Sheriff to await transportation.” But the next paragraph
makes the court’s intent unmistakeable: “[T]he Court hereby suspends the
execution of the above sentence for a period of ONE (1) YEAR.” (emphasis added).
      The state court itself also confirmed that it had issued no requirements
that had to be fulfilled before Fleming could be released. Fleming was sentenced
at the same time as two other criminal defendants (who were being sentenced
for unrelated offenses), both of whom were sentenced to prison terms. The state
court explained that it would subject all three defendants to certain terms, which
would constitute the terms of Fleming’s probation, and the terms of the other
defendants’ post-release supervision. While explaining one such term, the court
characterized the release of the other defendants as a future event, in contrast
with Fleming’s situation: “Participate in the Mississippi Drug Identification
Program. That means when you are released — or, Mr. Fleming, while you’re on
probation — you’ll be subject to being drug tested anytime the probation office
wants to.” (emphasis added). Similarly, in closing Fleming’s case in October
2008, the state court reiterated that Fleming’s prison sentence had been
suspended and that he was on supervised release as of October 15, 2007. The
document closing the case states: “The above Defendant, HOSEY FLEMING,
was sentenced to 1 years [sic] in the custody of MDOC for the crime of GAMING
VIOLATION, said sentence was suspended and the defendant was placed on
supervised Probation for 1 years [sic] on the 15 day of OCTOBER, 2007.”
      Additionally, the documents that Fleming signed on March 3, 2008, the
day he was released, do not support the County’s argument that Fleming should
not have been released upon the state court’s suspension of his sentence. The
County contends that because Fleming signed a statement that day indicating
that he “accept[ed] the above probation in accordance with the terms thereof,”
Fleming had to first sign the document before his probation would take effect.

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However, nothing in the record indicates that the state court issued any such
requirement.
      The County also cites a document that Fleming signed on March 3, 2008,
the “Detailed Release Sheet,” for the proposition that he could not be released
until his MDOC parole officer visited him in jail. This document states, “Reason
for Release: RELEASE MDOC,” and “Comments: RELEASE AUTHORIZED BY
MDOC-MRS. MCGEE.” But this document does not set forth any terms or
conditions set by the state court, nor does it purport to represent the state court’s
orders. Rather, the document is one used by the Tunica County Sheriff’s Office:
just below the title “Detailed Release Sheet,” the document states,
“TUNICACOUNTY SHERIFF’SOFFICE [sic].”                   As described above, the
transcript of Fleming’s guilty plea and sentencing proceeding, his sentencing
judgment, and the state court’s order closing his case in October 2008 all
indicate that the state court ordered that Fleming’s sentence be suspended and
he be placed on probation, with the expectation that the order would take effect
immediately.     The release sheet contains no indication that the state court
required that Fleming be held until an MDOC official authorized his release.
      In sum, the County was not entitled to summary judgment on the ground
that there were unfulfilled “conditions precedent” that required the continued
incarceration of Fleming.
      Second, the County contends that Fleming suffered no violation of his
right to timely release because once Fleming was placed on probation under the
supervision of MDOC on October 15, 2007, the State of Mississippi, rather than
the County, became responsible for him, including his continued incarceration.
We disagree. Nothing in the record indicates that the State was involved in any
way in Fleming’s continued detention, or that the State requested that the
County continue detaining him after his sentence was suspended.



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      Accordingly, we reverse the district court’s grant of summary judgment to
the County.
      B.      Sheriff Hamp and Deputy Sheriff Wright in their
              individual capacities
      We next consider Fleming’s argument that the district court erred in
granting summary judgment on the basis of qualified immunity to Sheriff Hamp
and Deputy Sheriff Wright, who were sued in their individual capacities. In
“resolving government officials’ qualified immunity claims,” we consider
(1) “whether the facts that a plaintiff has alleged . . . or shown . . .make out a
violation of a constitutional right”; and (2) “whether the right at issue was
‘clearly established’ at the time of [the] defendant’s alleged misconduct.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)). We may exercise our “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.” Id. at 236.
       “A supervisory official may be held liable . . . only if (1) he affirmatively
participates in the acts that cause the constitutional deprivation, or (2) he
implements unconstitutional policies that causally result in the constitutional
injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (alteration in original)
(quoting Gates v. Tex. Dep’t of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir.
2008)). “Liability for failure to promulgate policy and failure to train or supervise
both require that the defendant have acted with deliberate indifference.” Id.
The Porter court explained that in assessing an assertion of qualified immunity
in the context of a claim such as that here, “we must consider whether [the
defendant’s] actions were objectively unreasonable in light of the clearly
established law that a prison official must ensure an inmate’s timely release
from prison and that such an official may be liable for failure to promulgate



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                                  No. 10-60962

policy or failure to train/supervise if he acted with deliberate indifference to
constitutional rights.” Id.
      In their answer and motion for summary judgment, the county defendants
asserted that “Sheriff Hamp is entitled to qualified immunity” because he “had
no personal involvement [in Fleming’s detention] and was not in direct
supervision of the day to day operations of the Tunica County Detention Center.”
They asserted that Deputy Sheriff Wright “is also entitled to qualified
immunity” because he “merely transported Fleming to Clarksdale, Mississippi,
for a plea hearing and then returned him to the Tunica Detention Center to
await processing.”
      “When a defendant invokes qualified immunity, the burden is on the
plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam). “Because
qualified immunity constitutes an immunity from suit rather than a mere
defense to liability, the defense is intended to give government officials a right
not merely to avoid standing trial, but also to avoid the burdens of such pretrial
matters as discovery . . . as [i]nquiries of this kind can be peculiarly disruptive
of effective government.” Id. (alterations in original) (citations omitted). This
court has also explained, though, that “qualified immunity does not shield
government officials from all discovery but only from discovery which is either
avoidable or overly broad.” Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir.
1987); accord Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995);
see also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (“[I]f the actions
[that a defendant official] claims he took are different from those the [plaintiff]
allege[s] . . . then discovery may be necessary before [the official]’s motion for
summary judgment on qualified immunity grounds can be resolved.”). However,
“a plaintiff seeking to overcome qualified immunity must plead specific facts that
both allow the court to draw the reasonable inference that the defendant is liable

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for the harm [the plaintiff] has alleged and that defeat a qualified immunity
defense with equal specificity.” Backe v. LeBlanc, No. 11-40460, --- F.3d ----, 2012
WL 3517361, at *2 (5th Cir. Aug. 16, 2012).
      Therefore, in order to determine whether the district court erred in
granting summary judgment to the individual defendants, we must first
determine whether the allegations in Fleming’s complaint are sufficient to
negate their assertions of qualified immunity. See id.; Wicks, 41 F.3d at 995.
Negating qualified immunity “demands more than bald allegations and
conclusionary statements.” Wicks, 41 F.3d at 995. Fleming “must allege facts
specifically focusing on the conduct of [the individual defendants] which caused
his injury.” See id.
      In his amended complaint, Fleming alleges that Sheriff Hamp and Deputy
Sheriff Wright “w[ere] involved in [Fleming’s] unlawful detention . . . after
[Fleming’s] suspended sentence [was ordered] and knew, or should have known,
that the detention was unlawful”; “possessed actual or constructive knowledge
that [Fleming] was being held in confinement illegally”; “had a duty to insure
that [Fleming] was not held in jail after his sentence was suspended[] and . . .
failed to perform that duty”; “have a practice of recklessly detaining people
unlawfully and unconstitutionally, including failing to release people in a timely
manner”; “failed properly to train and supervise . . . officers and employees to
insure   that   persons     in   custody    are   not   detained   unlawfully    and
unconstitutionally and are released in a timely manner”; and “failed to
promulgate and implement proper policies to prevent” such unlawful detention.
      These allegations are just as “broad and . . . conclusional” as those deemed
insufficient to negate an assertion of qualified immunity in Wicks. 41 F.3d at
995-96; see also id. at 996 (holding allegations of race discrimination
insufficiently specific to overcome assertion of qualified immunity where plaintiff
alleged that “[employer] customarily and habitually treated black employees in

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                                  No. 10-60962

a less favorable fashion than white employees, and her adverse comments about
[p]laintiff, based upon race and based upon [p]laintiff’s protesting unjustified
employment actions against him, was . . . a proximate cause of” an adverse
employment decision). As the Wicks court explained, “[t]o merely make the
charge is insufficient; the complaint must ‘state with factual detail and
particularity the basis for the claim which necessarily includes why the
defendant-official cannot successfully maintain the defense of immunity.’” Id.
at 996; see also id. at 996 n.21 (“[A]llowing broadly-worded complaints, . . . which
leaves to traditional pretrial depositions, interrogatories, and requests for
admission the development of the real facts underlying the claim, effectively
eviscerates important functions and protections of official immunity.”).
Fleming’s amended complaint does no more than recite various legal theories
upon which a jailer may be liable for unlawful detention under this court’s
precedents. His pleadings’ failure to allege the specific factual underpinnings
of these legal conclusions is fatal in the face of the individual defendants’
assertions of qualified immunity.
      Accordingly, the district court did not err in granting summary judgment
to Sheriff Hamp and Deputy Sheriff Wright.
II.   Mississippi Tort Claims Act claim
      The Mississippi Tort Claims Act permits lawsuits to be brought against
employees of the state or any of its political subdivisions, including counties,
based on “claims for money damages arising out of the torts of such
governmental entities and the torts of their employees.” MISS. CODE ANN. § 11-
46-5(1).   However, the Act also exempts governmental entities and their
employees “acting within the course and scope of their employment or duties”
from liability for certain kinds of claims. Id. § 11-46-9(1). Relevant here,
Mississippi Code § 11-46-9(1)(m) exempts governmental defendants from
liability to “any claimant[,] who at the time the claim arises[,] is an inmate of


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any detention center, jail, workhouse, penal farm, penitentiary or other such
institution.” Id. § 11-46-9(1)(m). We conclude that § 11-46-9(1)(m) applies in the
instant case, and thus, that the district court did not err in dismissing Fleming’s
state law claim.
       Fleming argues that § 11-46-9(1)(m) does not bar his claim because he had
been ordered released by the state court at the time his claim arose, and
therefore was not an “inmate” within the meaning of the statute. However, the
plain language of § 11-46-9(1)(m) does not contemplate any distinction between
inmates being detained pursuant to a lawful court order and unlawfully-held
detainees, and the Mississippi courts have declined to read such a distinction
into the statute. Brooks v. Pennington, 995 So. 2d 733, 737 (Miss. Ct. App. 2007)
(en banc) (stating that “[s]ection 11-46-9(1)(m) does not distinguish between
those lawfully and those unlawfully within the custody of the state”); see also
Bessent v. Clark, 974 So. 2d 928, 930, 933 (Miss. Ct. App. 2007) (explaining that
section 11-46-9(1)(m) “provides immunity to government entities and employees
from claims of incarcerated individuals” and applying that provision to a
prisoner’s “false imprisonment” claim).4
       Fleming argues that this case is like Brooks, in which the plaintiff was
released after being placed on probation, having had the remainder of his
sentence suspended.         995 So. 2d at 736.         The plaintiff subsequently was
wrongfully arrested by a bail bondsman and taken back to jail, where he was
accepted and detained. Id. Although refusing to recognize a distinction between
lawfully- and unlawfully-confined inmates, the Brooks court concluded that
§ 11-46-9(1)(m) did not apply in that case because the plaintiff was not actually


       4
        Likewise, the Mississippi Supreme Court has defined an inmate, for the purposes of
§ 11-46-9(1)(m), “as ‘a person confined to a prison, penitentiary or the like.’” Wallace v. Town
of Raleigh, 815 So. 2d 1203, 1207 (Miss. 2002) (quoting BLACK’S LAW DICTIONARY 788 (6th
ed.1990)). This definition of “inmate” does not distinguish those who are lawfully confined
from those who are not.

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                                  No. 10-60962

confined when his claim arose. Id. at 737. Instead, the claim there arose “at the
moment the . . . County deputy/jailor accepted custody of [the plaintiff] based on
[the bondsman’s] surrender of him.” Id. Fleming argues that, similarly, his
claim arose when he was “re-incarcerated” in Tunica County jail after being
placed on probation. However, Fleming’s situation is different from that of the
plaintiff in Brooks, because unlike that plaintiff, Fleming was not actually
released from custody once his sentence was suspended and he was placed on
probation.
      Rather, Fleming’s situation is more analogous to that of the plaintiff in
Love v. Sunflower Cnty. Sheriff’s Dep’t, 860 So. 2d 797 (Miss. 2003), in which the
Mississippi Supreme Court held that the plaintiff was an “inmate” under
§ 11-46-9(1)(m), even though he was in the process of bonding out of jail when
his claim arose. Id. at 800-01. Because “[t]he cold hard facts [we]re that until
the money was paid and all paperwork complete, Love’s release was not
‘imminent,’” the court concluded that “[a]t the time of the incident in question,
Love was an inmate of the Sunflower County Jail.” Id. at 801. Here, Fleming
was brought to state court for the October 15, 2007 proceeding from Tunica
County Jail, where he was confined. Although the state court suspended
Fleming’s sentence and placed him on probation, it is undisputed that his
paperwork was not processed and he had not actually been released at that time.
Thus, Fleming’s status as an “inmate” was unchanged.
      We therefore conclude that § 11-46-9(1)(m) applies here, and affirm the
district court’s dismissal of Fleming’s state law claim.
                                CONCLUSION
      For the foregoing reasons, we REVERSE the grant of summary judgment
on Fleming’s § 1983 claim against the County; AFFIRM the grant of summary
judgment on Fleming’s § 1983 claim against Sheriff Hamp and Deputy Sheriff
Wright in their individual capacities; AFFIRM the dismissal of Fleming’s


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                                 No. 10-60962

Mississippi Tort Claims Act claim against the County; and remand this case to
the district court for further proceedings consistent with this opinion.




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