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            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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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