     Case: 09-60782     Document: 00511134550          Page: 1    Date Filed: 06/07/2010




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

                                                  FILED
                                                                            June 7, 2010

                                       No. 09-60782                         Lyle W. Cayce
                                                                                 Clerk

ERIC CUNNINGHAM, JR., by and through his father and next friend, Eric
Cunningham, Sr.; ERIC CUNNINGHAM, JR., Individually,

                                                   Plaintiffs – Appellants
v.

CITY OF WEST POINT MISSISSIPPI,

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:07-CV-261


Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Eric Cunningham, Jr. (Cunningham), and his father, Eric Cunningham,
Sr., appeal the dismissal of their claims against the City of West Point,
Mississippi under 42 U.S.C. § 1983 and the Mississippi Tort Claims Act (MTCA).
We affirm.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                          FACTS AND PROCEEDINGS
      Seventeen-year-old Cunningham was babysitting his girlfriend’s children,
including fifteen-month-old Jahmad Hogan. Hogan accidentally died while
under Cunningham’s care, but local authorities charged Cunningham with child
abuse and capital murder.            A municipal judge, A.M. Edwards, denied
Cunningham bail, and he remained in jail for fifty-eight days. Ultimately, the
grand jury refused to indict Cunningham on the charges. Cunningham, along
with his father, sued the City pursuant to § 1983 and the MTCA. He asserted
that the denial of bail deprived him of a federally protected right and that the
City’s employees were negligent in their investigation of Hogan’s death.
      On the City’s motion, the district court entered summary judgment in its
favor on all claims.       The court first concluded that there was no valid
policymaker on whom the City’s alleged § 1983 municipal liability could be
pinned.    It then summarily found that there was no evidence to support
Cunningham’s assertion that City employees acted in “reckless disregard of [his]
safety and well-being,” as required to prevail under the MTCA.
                                    DISCUSSION
      Cunningham makes two arguments. First, he contends that his § 1983
claim was dismissed in error because the municipal judge was acting as a
policymaker for the City.         Second, he contends that material fact issues
precluded summary judgment in the City’s favor on his state claim.1 We address
these arguments in turn.2


      1
         Cunningham also argues that Judge Edwards’s denial of bail without particularized
findings deprived him of federal rights under the Fourteenth Amendment. For reasons
discussed infra, the court need not address this argument.
      2
         We review “a district court’s grant of summary judgment de novo, applying the same
legal standards as the district court.” Tradewinds Envtl. Restoration, Inc. v. St. Tammany
Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009) (quotation omitted). “[T]he evidence and
inferences from the summary judgment record are viewed in the light most favorable to the
nonmovant.” Id. (quotation omitted).

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I.      Section 1983 Municipal Liability
        To prevail on his § 1983 claim against the City, Cunningham “must
establish that he sustained a deprivation of his constitutional rights as a result
of some official policy, practice, or custom of the governmental entity.” Krueger
v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (citing Monell v. Dep’t of Social Servs.,
436 U.S. 658, 694 (1978)). In Pembaur v. City of Cincinnati, the Supreme Court
held that “municipal liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances.”        475 U.S. 469, 480 (1986).
“[W]here action is directed by those who establish governmental policy, the
municipality is equally responsible whether that action is to be taken only once
or to be taken repeatedly.”     Id. at 481.   Whether an official possesses the
requisite “final policymaking authority” is a question to be decided by reference
to state law. Burge v. Parish of St. Tammany, 187 F.3d 452, 468-69 (5th Cir.
1999).
        Cunningham asserts that Judge Edwards, as a municipal judge for the
City, was a policymaker and that his decision to deny bail constituted municipal
policy. This court has repeatedly rejected this argument in analogous cases. In
Krueger, the court flatly held that “[a] local judge acting in his or her judicial
capacity is not considered a local government official whose actions are
attributable to the county.” 66 F.3d at 77. In Johnson v. Moore, the court
emphasized its repeated holdings “that a municipal judge acting in his or her
judicial capacity to enforce state law does not act as a municipal official or
lawmaker.” 958 F.2d 92, 94 (5th Cir. 1992); see also Bigford v. Taylor, 834 F.2d
1213, 1221-22 (5th Cir. 1988). Cunningham presents no state law that would
compel a different conclusion. Thus, our precedents foreclose the argument that
Judge Edwards operated as a municipal policymaker when he denied bail.
        Aware of the contrary precedent, Cunningham urges us to disregard
Johnson, arguing that it is contrary to our earlier decisions in Familias Unidas

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v. Briscoe, 619 F.2d 391 (5th Cir. 1980), and Crane v. Texas, 759 F.2d 412 (5th
Cir. 1985). Familias Unidas held that certain Texas county judges, as the “final
authority or ultimate repository of county power,” could amount to policymakers
for actions taken pursuant to their nonjudicial—i.e., their administrative,
legislative, and executive—duties. 619 F.2d at 404; see also Carbalan v. Vaughn,
760 F.2d 662, 665 (5th Cir. 1985) (describing the import of Familias Unidas in
terms of the special role of county judges in Texas). There is no suggestion that
Judge Edwards had an array of duties similar to those of the Texas county
judges in Familias Unidas.       Furthermore, there is no doubt that Judge
Edwards’s denial of bail was a judicial action. Meanwhile, in Crane, the court
simply cited Familias Unidas with approval in concluding that certain decisions
made by a district attorney were tantamount to municipal policy. 759 F.2d at
429-30. Contrary to Cunningham’s contention, neither of these cases is in
conflict with Johnson v. Moore or related decisions.
      Finally, Cunningham argues that it is illogical for the court to conclude
that a municipal judge enforcing state law provisions in his judicial capacity is
acting pursuant to state, rather than municipal, policy. This argument, too, is
foreclosed. See Bigford, 834 F.2d at 1222 (holding that a municipal judge’s
departure from controlling state law “cannot be said to represent county policy”);
see also Eggar v. City of Livingston, 40 F.3d 312, 315 (9th Cir. 1994) (refusing to
hold that a municipal judge’s failure to follow state and federal constitutional
law renders him a municipal policymaker).
      Accordingly, regardless of whether Cunningham suffered a constitutional
deprivation, the City cannot be liable under the facts of this case because the
claimed deprivation was not the result of an official policy, practice, or custom.
See Johnson, 958 F.2d at 93-94 (declining to address the merits of an alleged
constitutional deprivation once it has been established that no municipal



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liability can attach); Bigford, 834 F.2d at 1223 (same). The dismissal of the
§ 1983 claim is therefore affirmed.
B.      Mississippi Tort Claims Act
        The MTCA provides a qualified waiver of sovereign immunity under
Mississippi law for certain tortious acts by municipal employees. It does not
waive sovereign immunity, however, for
              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.


M ISS. C ODE A NN. § 11-46-9(1)(c). Thus, the City can only be liable for its officers’
conduct if those officers acted with reckless disregard of Cunningham’s safety
and well-being.       “[R]eckless disregard is synonymous with willfulness and
wantonness and . . . includes an element of intent to harm.” Foster v. Noel, 715
So. 2d 174, 179 (Miss. 1998).
        In his complaint, Cunningham alleged that the City’s police investigation
was deficient in the following respects: officers negligently relied on a faulty
medical opinion of the cause of death; officers negligently failed to interview
witnesses; and the City was negligent in failing to train its officers on proper
investigative techniques. In granting judgment for the City, the district court
found that its employees were acting within the course and scope of their
employment and that there was no evidence of “reckless disregard of the safety
and well-being” of Cunningham. On appeal, Cunningham contends that the
officers failed to interview eyewitnesses.3 Cunningham frames the argument in


        3
        Cunningham also contends that officers conducted an abusive interview with him and
submitted improper, conclusory affidavits to support the arrest warrants. Because
Cunningham did not present these arguments to the district court, however, they may not be

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terms of “fact issues” which prevent summary judgment, but he does not point
to evidence that in any way undermines the district court’s ruling that the
officers did not act with reckless disregard of Cunningham’s safety or well-being.
Instead, Cunningham merely points to evidence that the officers conducted
cursory interviews with certain witnesses. There is no support for his implicit
assumption that conducting a limited interview necessarily amounts to reckless
disregard sufficient to trigger municipal liability.
       Nor do the MTCA cases cited by Cunningham support his position.4 In
Foster v. Noal, the Mississippi Supreme Court held that an officer acted with
reckless disregard when no investigation whatsoever was conducted and when
the officer simply entered the plaintiff’s name on an arrest affidavit. Foster, 715
So. 2d at 176-77, 179. Here, an investigation was conducted, which, though it
may have led the officers to arrest Cunningham in error, was nonetheless not so
lacking in substance as to amount to reckless disregard of his safety.
Meanwhile, Phillips v. Mississippi Department of Public Safety merely stands
for the uncontroversial proposition that a court must consider “the totality of the
circumstances when considering whether someone acted in reckless disregard.”
978 So. 2d 656, 661 (Miss. 2008).
       The district court correctly held that Cunningham did not present evidence
creating a material fact issue as to whether the officers acted with reckless
disregard. Accordingly, we affirm its dismissal of the MTCA claim.




raised on appeal. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
Even if not waived, these arguments would not affect our conclusion, as Cunningham presents
no specific evidence to support his theory that the officers’ actions constituted the requisite
“reckless disregard.”
       4
        Cunningham also cites malicious prosecution cases relating to probable cause, but
these are not relevant to his MTCA claim. The question before the court is not whether
probable cause to issue an arrest warrant existed, but whether the officers acted with reckless
disregard of Cunningham’s safety and well-being during the investigation.

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                             CONCLUSION
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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