                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                         February 26, 2007
                                FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                   __________________________                                 Clerk
                                          No. 06-60223
                                   __________________________

CALVIN HAMPTON,

                                                                                     Plaintiff-Appellee,

versus

OKTIBBEHA COUNTY SHERIFF DEPARTMENT, ET AL.

                                                                                            Defendants,

DOLPH BRYAN, Sheriff, in his capacity of sheriff and individually;

JAMES LINDSEY, Sheriff Department Supervisor, in his capacity of supervisor and individually;

SAMUEL GITCHELL, Deputy, in his capacity of deputy and individually;

TOMMY WHITFIELD, Deputy, in his capacity of deputy and individually;

                                                                                Defendants-Appellants.

                   ___________________________________________________

                           Appeal from the United States District Court
                             for the Northern District of Mississippi
                                       (No. 1:04-CV-259)
                   ___________________________________________________

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

         Before the court is an interlocutory appeal of the district court’s denial of qualified immunity

to four law enforcement officers. With respect to all defendants-appellants except for Deputy Samuel



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Gitchell (“Gitchell”), we reverse the district court and grant qualified immunity. With respect to

Gitchell, we dismiss the appeal for lack of jurisdiction. The plaintiff’s motion for damages and double

costs is denied.

                                  FACTS AND PROCEEDINGS

        The plaintiff-appellee, Calvin Hampton (“Hampton”), was the director of Quad County

Alternative School in Starkville, Mississippi. Gitchell entered the school with an arrest warrant for

a student. Hampton asked to see the warrant and said that he would retrieve the student if he was

shown the warrant. Gitchell refused, became louder, and his speech became more aggressive.

Hampton did nothing physically to prevent Gitchell from entering the building or searching for the

student. In fact, a member of the school’s staff held open the door that led to the classrooms.

        After a discussion on his police radio, Gitchell asked Hampton to go outside so that he could

see the warrant. Gitchell waved the warrant in Hampton’s face, and while Hampton did not touch

the warrant, he could see the student’s name on it. Hampton indicated that this was sufficient, and

he instructed the school’s staff to retrieve the student from his class and turn him over to the deputy.

Prior to Gitchell departing with the student, Sheriff Department Supervisor James Lindsey

(“Lindsey”) and Deputy Tommy Whitfield (“Whitfield”) arrived at the school and told Hampton that

the Sheriff Department did not permit school personnel to see an arrest warrant for a youth. The

three officers returned to the Sheriff Department and discussed the situation with Sheriff Dolph Bryan

(“Bryan”). He instructed them to fill out an affidavit, obtain a warrant, and place Hampton under

arrest. Gitchell then swore out an affidavit that stated that Hampton unlawfully obstructed the arrest

of the student by Hampton’s refusal to turn the student over to the officers, which purportedly

violated MISS. CODE § 97-9-73. This section requires the offender to “obstruct or resist by force, or


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violence, or threats, or in any other manner, his lawful arrest or the lawful arrest of another person.”

       After procuring a warrant based on Gitchell’s affidavit, Gitchell and Whitfield returned to the

school and arrested Hampton. Hampton moved to dismiss, and a county judge initially dismissed the

charges. The judge subsequently recused himself per the county prosecutor’s request and set aside

his dismissal of the charge. The county prosecutor requested that the same judge who had signed the

student’s youth arrest warrant be assigned Hampton’s case, and this judge was so appointed. The

judge entered against Hampton a guilty judgment for the crime of resisting arrest. Hampton appealed

to the county circuit court, which directed a verdict in his favor. The circuit court noted:

       That’s the only thing that I can see that this Defendant did, is a request of the officer
       to see the warrant. The person sought to be arrested was in his custody, in his charge,
       by law. No threats, no violence, no absolute refusal, no nothing, other than “Let me
       see the warrant.” Now, the officer might have thought that he couldn’t show it to
       him. He might have been laboring under the belief that he can’t show a warrant to
       someone in custody of another juvenile, but the only authority the officer had is by the
       warrant. . . . [T]his person whom the arrestee has custody of has an absolute right to
       demand to see it, in my view.

The testimony of the officers showed that Hampton did nothing other than ask to view the warrant.

He did not use force, violence, or threats. The four officers, Gitchell, Lindsey, Whitfield, and Bryan,

all have extensive law enforcement backgrounds.

       The Mississippi statute governing youth records indicates that “[e]xcept as otherwise provided

in this section, records involving children shall not be disclosed, other than to necessary staff of the

youth court, except pursuant to an order of the youth court.” MISS. CODE § 43-21-261(1). It is

undisputed that no such order existed. Instead, Hampton points to another section of the statute,

which states that “[u]pon request, the parent, guardian or custodian of the child who is the subject

of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to



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inspect any record, report or investigation which is to be considered by the youth court at a hearing.”

Id. § 43-21-261(3). “Teachers and school administrators, it is said, act in loco parentis in their

dealings with students . . . .” New Jersey v. T.L.O., 469 U.S. 325, 336 (1985). As such, Hampton

was considered the youth’s custodian during the relevant time period.

        Hampton’s § 1983 complaint alleges that the defendants “acted under color of state law to

deprive plaintiff of his constitutional right to liberty and due process when they conspired to submit

false and incomplete information in order to secure a warrant for the arrest of plaintiff from a court

which did not have jurisdiction, without probable cause instigating the malicious prosecution of the

plaintiff.”

        Gitchell, Lindsey, Whitfield, and Bryan filed a motion for summary judgment on, inter alia,

the basis of qualified immunity, and the district court denied their motion. The district court decided

that “there is a factual issue as to whether [Gitchell] acted reasonably, and a factual issue exists that

would defeat summary judgment.” In addressing the role of the other officers in the activities forming

the basis for the § 1983 action, the district court denied qualified immunity, stating that “[b]ecause

of the parties[’] differing versions, the Court is unable to ascertain the nature of [the other officers’]

role[s]. In light of the Plaintiff’s averments, the Court finds that there is a factual issue as to whether

[these officers] acted reasonably, and a factual issue exists that would defeat summary judgment.”

The officers filed an interlocutory appeal.

                     STANDARD OF REVIEW AND APPLICABLE LAW

        The doctrine of qualified immunity shields a government official from civil liability for

damages based upon the performance of discretionary functions if the official’s acts did not violate

clearly established constitutional or statutory law of which a reasonable person would have known.


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Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006). “Where, as here, a section 1983 defendant

pleads qualified immunity and shows he is a governmental official whose position involves the

exercise of discretion, the plaintiff then has the burden to rebut this defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law.” Pierce v. Smith, 117 F.3d 866,

871–72 (5th Cir. 1997) (internal quotation omitted). To determine whether a defendant is entitled

to qualified immunity, this court engages in a two-pronged analysis, inquiring (1) whether the plaintiff

has alleged a violation of a constitutional right and, if so, (2) whether the defendant’s behavior was

objectively reasonable under clearly established law at the time the conduct occurred. Easter, 467

F.3d at 462. If the plaintiff fails to state a constitutional claim or if the defendant’s conduct was

objectively reasonable under clearly established law, then the government official is entitled to

qualified immunity. Id.

       The first prong requires the plaintiff to allege “the deprivation of an actual constitutional [or

statutory] right.” Felton v. Polles, 315 F.3d 470, 477 (5th Cir. 2002) (internal quotation omitted).

The plaintiff may satisfy this prong by alleging “the claimed deprivation at a higher level of

generality.” Id. at 477–78. For the second prong, by contrast, “the right . . . alleged to have [been]

violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense:

The contours of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Id. at 478 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). Previous cases need not be precisely similar to the instant case; officials can be on notice

that their conduct violates clearly established law in novel factual scenarios provided that the state

of the law gave them “fair warning that their [conduct] was unconstitutional.” Hope v. Pelzer, 536

U.S. 730, 741 (2002). Even so, “[a] defendant’s acts are held to be objectively reasonable unless all


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reasonable officials in the defendant’s circumstances would have then known that the defendant’s

conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.”

Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001).

        Defendants in § 1983 actions can immediately appeal the district court’s denial of a motion

for summary judgment based on qualified immunity under the collateral order doctrine “to the extent

that it turns on an issue of law.” Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). If the district court denied summary

judgment because material issues of fact exist, this court lacks jurisdiction to review the court’s

determination that genuine fact issues exist. See Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.

2004) (en banc).

        This court can, however, review whether the factual dispute found by the district court is

material for summary judgment purposes; that is, the court can consider the legal significance of the

facts that the district court found in dispute. Id.; Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir.

2002). In doing so, this court takes the plaintiff’s factual assertions as true and inquires as to whether

those facts are sufficient to defeat the motion for summary judgment. Kinney, 367 F.3d at 348. This

court’s review of the materiality of the factual dispute and the district court’s conclusions of law is

de novo. Id. at 347–48.

        When the district court’s order does not clarify which facts the plaintiff might be able to

prove, this court has two choices. “We can either scour the record and determine what facts the

plaintiff may be able to prove at trial and proceed to resolve the legal issues, or remand so that the

trial court can clarify the order.” Thompson, 245 F.3d at 456.

                                            DISCUSSION


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       Hampton alleges a violation of his Fourth and Fourteenth Amendment rights. The officers

do not dispute that “the right to be free from false arrest was well established at the time of the

Plaintiff’s arrest.” The officers instead argue that their actions were objectively reasonable in light

of clearly established law at the time of the events.

       The district court declined to grant qualified immunity to any of the officers on the basis that

there were genuine issues of material fact. “Where factual disputes exist in an interlocutory appeal

asserting qualified immunity, we accept the plaintiffs’ version of the facts as true.” Kinney, 367 F.3d

at 348. The court therefore accepts Hampton’s version of the facts, namely that the officers

“conspired to submit false and incomplete information in order to secure a warrant for the arrest of

[Hampton].” Hampton’s version states that Gitchell, on Bryan’s instruction, went to the judge and

provided false information to procure a warrant that led to Hampton’s arrest and prosecution. More

specifically, Gitchell provided the judge with false information by stating that Hampton “obstruct[ed]

or resist[ed] by force, or violence, or threats, or in any other manner” the arrest of the youth.

A.     Gitchell

       A reasonable officer would know that lying to a judge in order to procure an arrest warrant

was unlawful. The district court found that there was a genuine issue of fact as to whether or not

Gitchell did exactly this.1 This court cannot review such a determination of genuineness on

interlocutory appeal. Reyes v. City of Richmond, 287 F.3d 346, 350–51 (5th Cir. 2002). Rather, this

court accepts Hampton’s “version of the facts as true,” namely that Gitchell recklessly provided false



       1
         Despite the parties’ apparent confusion, the relevant constitutional or statutory provision
that Gitchell may have violated is not the Mississippi statute governing youth warrants but rather
the requirement that law enforcement officers not lie to the judge in procuring a warrant.
Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005).

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information in procuring the warrant. Kinney, 367 F.3d at 348. Accordingly, Gitchell is not entitled

to qualified immunity at this stage in the litigation. We dismiss Gitchell’s appeal for lack of

jurisdiction. See id. at 351–52.

B.     Whitfield and Lindsey

       At this stage, it is not clear what role these other officers played in the procurement of the

warrant. It appears undisputed, however, that Gitchell alone actually prepared the affidavit and

presented it to the judge.

       Whitfield and Lindsey accordingly argue that they are entitled to qualified immunity because

under Michalik v. Hermann, liability for procurement of a warrant is appropriate against (1) the

affiant officer or (2) “an officer who actually prepares the warrant application with knowledge that

a warrant would be based solely on the document prepared. Such an officer is in a position to see

the whole picture, to understand his responsibility, and thus fully to assess probable cause questions.”

422 F.3d 252, 261 (5th Cir. 2005) (footnote omitted).

       In Michalik, this court, on interlocutory appeal, reversed the district court’s denial of qualified

immunity to two officers who were involved in the procurement process but were not the affiant or

preparer of the affidavit with respect to potential liability for procurement of a warrant. Id. In

granting the officers qualified immunity on this issue, the court noted that:

       Although issues of fact may exist as to the roles that [the two officers] played in the
       investigation, and in providing some of the information to [the affiant officer], these
       issues of fact are not material to the warrant claim because none of the evidence
       suggests that [the two officers] prepared or presented the warrant or were fully
       responsible for its preparation or presentation.

Id. Hampton does not allege that Whitfield or Lindsey was the affiant officer or the “officer who

actually prepare[d] the warrant application with knowledge that a warrant would be based solely on


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the document prepared.” Id. Even under the plaintiff’s best view of the facts, these officers are not

liable as a matter of law for Gitchell’s procurement of the warrant. We reverse the district court and

grant qualified immunity to Whitfield and Lindsey.

C.      Bryan

        Bryan, after hearing Gitchell describe the incident at the school, instructed him to prepare an

affidavit and procure an arrest warrant for Hampton. “A supervisory officer cannot be held liable

under § 1983 for the actions of subordinates on any theory of vicarious liability.” Thibodeaux v.

Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Hampton must therefore allege that

Bryan himself actually violated Hampton’s constitutional rights.

        Michalik only extended liability to cases in which the non-affiant officer actually prepared the

warrant for presentation by another. 422 F.3d at 261. Hampton does not dispute that Bryan did not

himself prepare or present the warrant. We therefore reverse the district court and grant qualified

immunity to Bryan.

D.      Motion for damages and double costs

        Hampton also filed a motion for damages and double costs. “If a court of appeals determines

that an appeal is frivolous, it may, after a separately filed motion . . . and reasonable opportunity to

respond, award just damages and single or double costs to the appellee.” FED. R. APP. P. 38. As this

appeal was not frivolous, Hampton’s motion is denied. See C&H Nationwide, Inc. v. Norwest Bank

Tex. NA, 208 F.3d 490, 497–98 (5th Cir. 2000).

                                           CONCLUSION

        We DISMISS Gitchell’s appeal for lack of jurisdiction and REVERSE the district court’s

denial of qualified immunity to Whitfield, Lindsey, and Bryan. We DENY Hampton’s motion for


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damages and double costs.




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