     Case: 17-60287   Document: 00514381609     Page: 1   Date Filed: 03/12/2018




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

                                                                        FILED
                                 No. 17-60287                     March 12, 2018
                                                                   Lyle W. Cayce
                                                                        Clerk

JOSEPH GERHART, Individually, and Next Friend of Brett Michael
Gerhart, Ian Michael Gerhart, and Sarah Robillard, Minors; AMANDA JO
GERHART, Individually, and Next Friend of Brett Michael Gerhart, Ian
Michael Gerhart, and Sarah Robillard, Minors,


             Plaintiffs – Appellees,


v.


JOHNNY BARNES, in his Official and Individual Capacity; BRETT
MCALPIN, Deputy, in his official and individual capacity,


             Defendants – Appellants.




                Appeals from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 3:11-CV-586
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                                       No. 17-60287


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       In this interlocutory appeal, Officer Johnny Barnes and Deputy Brett
McAlpin appeal the denial of their summary-judgment motions on qualified
immunity and Mississippi tort law grounds. We AFFIRM the district court’s
denial of summary judgment on qualified immunity grounds and REVERSE
the denial of summary judgment on the Mississippi tort claim and render
judgment on that claim.
                                               I.
       A panel of this court previously ruled on an interlocutory appeal based
on qualified immunity for the third individual, Agent Brad McLendon, who
entered the Gerharts’ home. See Gerhart v. McLendon, No. 17-60331, 2017 WL
4838405 (5th Cir. Oct. 25, 2017). 1 We discussed the facts in detail in that
opinion and we reiterate those facts below:
             By June 2010, Detective Jamie Scouten of the Pearl Police
       Department had spent several months investigating the residence
       at 473 Robert Michael Drive in Pearl, Mississippi. As part of that
       investigation, Scouten used a confidential informant (“CI”) to
       conduct “buy-bust” operations in which the informant would
       purchase methamphetamine at the residence. The U.S. Drug

       *  Pursuant to Fifth Circuit Rule 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 Fifth Circuit Rule 47.5.4.
        1 In that opinion, we affirmed the district court’s judgment holding that McLendon

was not entitled to qualified immunity. McLendon, 2017 WL 4838405, at *1. As we stated
in that opinion, “we lack jurisdiction to review the district court’s factual findings” and thus
“base our legal conclusions on the facts that the district court found sufficiently supported in
the summary judgment record, Gerhart v. Rankin Cnty., No. 3:11-CV-586, 2017 WL 1238028
(S.D. Miss. Mar. 31, 2017).” Id. at *1 n.1. “Due to our limited jurisdiction, we cannot review
the district court’s factual findings. Nor do we have the benefit of the evidence as it will
emerge at trial. Thus, our opinion should not be read to preclude dismissing this case on
qualified immunity grounds at another point in the proceedings.” Id. at *5 n.6.


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                                No. 17-60287
 Enforcement Administration (“DEA”) learned about Scouten’s
 operation.     It requested that he conduct another buy-bust
 operation in order to “freshen up” the probable cause for arrest and
 search warrants. Based on the DEA’s interest, Scouten requested
 back-up from other law enforcement agencies, including Rankin
 County and the Rankin County District Attorney’s Office. Prior to
 the operation, he prepared warrants and supporting affidavits for
 473 Robert Michael Drive. The plan was for the CI to purchase
 methamphetamine and bring it to the officers, who would test it.
 Scouten would then fill in the salient details in the warrant and
 get a judge’s approval.
        ....
        The operation took place on June 7, 2010. Scouten held a
 briefing beforehand at the police station. During that briefing,
 Scouten told all of the officers participating that the target
 residence was 473 Robert Michael Drive. He then wrote “473
 Robert Michael Drive” across the top of a sheet of paper and asked
 the CI to draw a diagram of the interior of the residence. Scouten
 and the CI also went over a number of other key details during
 that briefing, including the location, the persons involved, the type
 of narcotics, and the identity of the CI. This last piece of
 information was key because if the officers needed to enter the
 residence, it was important for the CI’s safety that they could
 identify her. Scouten used Google Earth images to familiarize
 officers with the location and appearance of the target residence.
 Scouten also mentioned that an unusual van with a “dualie [sic]
 axle” was parked in the driveway of the target residence. Because
 the target residence had burglar bars around all windows, Scouten
 told the others that they would have to enter through a side door. 2
        ....
        Scouten divided the officers into several vehicles, making
 sure that at least one officer in each vehicle could access the Pearl
 Police Department’s radio channels. McLendon was assigned to a
 vehicle with two other officers: Brett McAlpin of the Rankin
 County Sheriff’s Department and John Barnes of the Pearl Police
 Department. Barnes, McAlpin, and McLendon were tasked with
 stationing themselves at the end of Robert Michael Drive, where
 they would maintain visual contact with the residence in order to
 track the CI and ensure that no suspects left. They were the only


       2   The Gerhart house did not have any burglar bars.
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                            No. 17-60287
 officers who could see the target residence. The others were
 parked out of sight at a nearby church.
        The CI and the officers left the station around 7:00 p.m. The
 plan was for McLendon to follow the CI to the residence.
 McLendon insisted that he did not follow the CI to the target
 residence, though others testified that he did. Barnes and Scouten,
 for instance, both testified that McLendon had to brake as the CI
 turned into the driveway of the target residence in order to avoid
 hitting her vehicle. McLendon then drove past the residence for
 about 200 yards, turned around, and parked facing the residence.
 It was still daylight when they arrived, weather conditions were
 normal, and the terrain between the officers and the target
 residence was level.
        Barnes, McAlpin, and McLendon gave inconsistent
 testimony about who identified the target residence and how.
 Barnes claimed that he identified the target residence (at 473
 Robert Michael Drive) correctly and pointed out the van with the
 unusual “dualie [sic] axle.” McAlpin initially testified that both
 Barnes and McLendon identified 481 Robert Michael Drive as the
 target residence, though he later stated that only Barnes did so.
 McLendon also testified that Barnes identified 481 Robert Michael
 Drive as the target residence as they drove past and that he
 specifically pointed to a young man standing outside that
 residence.
        The CI entered 473 Robert Michael Drive and bought $600
 of methamphetamine. Suddenly, the CI texted Scouten to tell him
 she was in danger. Scouten broadcast to the other officers that the
 CI was in danger. He told them to converge on the target residence
 and do everything they could to help the CI. All vehicles
 acknowledged the signal—except McLendon’s. Barnes testified
 that he had turned his radio off because McLendon was trying to
 tune into the radio broadcast from the CI’s recording equipment.
 Scouten specifically requested a response from McLendon’s
 vehicle.    Barnes replied that he did not hear the prior
 transmission, and Scouten repeated it. McAlpin was aware of the
 second call to go to the target residence, whereas McLendon
 testified that it never happened.
        Meanwhile, Brett Gerhart was standing in front of his house
 at 481 Robert Michael Drive when he noticed McLendon’s black
 Cadillac Escalade drive by and park at the end of the street. Some
 time later, he heard McLendon’s tires screech as McLendon raced

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                            No. 17-60287
 toward the Gerhart residence. McLendon drove onto the Gerharts’
 yard and parked between some trees. According to Brett, the blue
 siren lights on McLendon’s car were not on, and so there was no
 indication that it was a police vehicle. As Scouten was rounding
 the corner, he saw McLendon driving down the street. After
 Scouten got out of his vehicle, he heard yelling and saw McAlpin,
 McLendon, and Barnes running across the Gerhart yard and into
 the house.
        Barnes, McAlpin, and McLendon got out of the vehicle and
 pulled out their weapons. McAlpin told Brett to get on the ground,
 though it is disputed whether he identified himself as a police
 officer. All three officers were, however, wearing vests identifying
 them as police officers. Brett testified that he did not notice the
 vests until the officers left. When McClendon’s vehicle came to a
 stop on the Gerharts’ yard, Brett ran into the residence through a
 side door and locked the door behind him. He went through the
 residence, shouting, “They have guns!” McAlpin kicked in the side
 door and started to chase Brett. Brett testified that he then ran
 through the front door to prevent intruders from coming into the
 house. According to Brett, McAlpin caught him at the front door,
 threw him to the ground, and began kicking him in the side and
 back of the head. McAlpin acknowledges that he pointed his gun
 at Brett’s head but denies kicking him. McAlpin then brought
 Brett into the living room.
        McLendon encountered Joseph Gerhart, Brett’s father,
 when he entered the residence. Joseph was on the floor by that
 time, and McLendon aimed his gun at Joseph’s face. When Joseph
 tried to get up to help his son, McLendon put his hand on Joseph’s
 back and repeatedly told him to stay down. Barnes was the last to
 enter the residence, where he encountered Amanda Gerhart in a
 fetal position, holding a baby in her arms. Amanda testified [that]
 she only assumed a fetal position after Barnes pointed his gun at
 her. After Barnes asked for Amanda’s name, he realized that they
 were in the wrong house. Amanda, however, testified that Barnes
 never said anything to her. She managed to retreat to her son Ian’s
 room and told him to call 911. Ian made the call and told the
 operator that there were men with guns in the house.
        Barnes found McAlpin in the living room, where he had
 Brett pinned to the ground. After Barnes told McAlpin that they
 were in the wrong house, McAlpin got off of Brett and left.


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                                 No. 17-60287
      McLendon likewise left when he discovered that they were in the
      wrong house.
             While Barnes, McAlpin, and McLendon were inside the
      Gerhart residence, Scouten and the other officers had converged
      on the target residence. After Scouten arrived, he initially believed
      that it would not be possible to get in without breaching tools, and
      he went to look for McAlpin, who was supposed to bring them to
      the target residence. He walked toward the Gerhart residence and
      saw McAlpin and McLendon leaving. Someone yelled from the
      target residence that they had finally managed to break in without
      the breaching tools, and Scouten returned to the target residence.
             Brett suffered injuries to his face and neck, and the city of
      Pearl ultimately paid for the door that McAlpin destroyed. The
      Pearl Police Department also conducted an investigation of the
      incident, which concluded that the officers were inattentive.
McLendon, 2017 WL 4838405, at *1–3 (footnote omitted).
                                       II.
                          The Constitutional Claims
      We have jurisdiction to review a district court’s denial of a claim of
qualified immunity; such a denial is immediately appealable.          Mitchell v.
Forsyth, 472 U.S. 511, 526–27, 530 (1985). This is because qualified immunity
is “an immunity from suit rather than a mere defense to liability,” and “it is
effectively lost if a case is erroneously permitted to go to trial.” Id. at 526.
“Because the plaintiff is the non-moving party, we construe all facts and
inferences in the light most favorable to the plaintiff.” Melton v. Phillips, 875
F.3d 256, 261 (5th Cir. 2017) (en banc) (citing Mullenix v. Luna, 135 S. Ct. 305,
307 (2015)). Thus, “on interlocutory appeal the public official must be prepared
to concede the best view of the facts to the plaintiff and discuss only the legal
issues raised by the appeal.” Gonzales v. Dallas County, 249 F.3d 406, 411 (5th
Cir. 2001).
      Our review is limited to “the purely legal question whether a given
course of conduct would be objectively unreasonable in light of clearly

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                                  No. 17-60287
established law.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
“[W]e cannot second-guess the district court’s determination that genuine
factual disputes exist.” McLendon, 2017 WL 4838405, at *4 (citing Kinney, 367
F.3d at 348). “When the district court fails to set forth the factual disputes
that preclude granting summary judgment, we may be required to review the
record in order ‘to determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed.’” Kinney, 367 F.3d at 348
(quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)).
      “A good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof, shifting it to the plaintiff to show that the defense
is not available.” Melton, 875 F.3d at 261 (quoting King v. Handorf, 821 F.3d
650, 653 (5th Cir. 2016)). To overcome the qualified-immunity defense, a
plaintiff must show first “that the official violated a statutory or constitutional
right” and second that “the right was ‘clearly established’ at the time of the
challenged conduct.” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th
Cir. 2011) (en banc)). To avoid summary judgment on qualified immunity, “the
plaintiff need not present absolute proof, but must offer more than mere
allegations.” Id. (quoting King, 821 F.3d at 654).
                               A. Unlawful Entry
      The officers contend that the unlawful-entry claim fails because the
district court’s order refers to this claim as one for “Fifth Amendment
violations under 42 U.S.C. § 1983 for unlawful entry,” even though the Fifth
Amendment does not apply to claims against municipal actors like Barnes and
McAlpin. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996) (“[T]he Fifth
Amendment applies only to the actions of the federal government . . . .”).
However, this appears to be a mere scrivener’s error, as the district court
conducted a lengthy Fourth Amendment analysis on the same unlawful-entry
claim asserted against McLendon. See Gerhart v. Rankin County, No. 3:11-
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                                  No. 17-60287
CV-586-HTW-LRA, 2017 WL 1238028, at *10–12 (S.D. Miss. Mar. 31, 2017),
aff’d sub nom. Gerhart v. McLendon, No. 17-60331, 2017 WL 4838405 (5th Cir.
Oct. 25, 2017).
      “A warrantless search of a home is presumptively unreasonable, absent
probable cause, consent, or exigent circumstances.”        McLendon, 2017 WL
4838405, at *5 (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001)).
“Nonetheless, no Fourth Amendment violation occurs when officers attempting
to perform a valid search mistakenly search the wrong property—as long as
they make ‘a reasonable effort to ascertain and identify the place intended to
be searched.’” Id. (quoting Maryland v. Garrison, 480 U.S. 79, 88 (1987)).
      Here, both Barnes and McAlpin attended the briefing prior to the buy-
bust operation, although McAlpin states that he was “in the hallway or on the
outskirts of” the “immediate area” where the briefing occurred. The briefing
discussed key details including the address of the target residence, a diagram
of the residence, and the identity of the confidential informant. Scouten used
Google Earth images to familiarize officers with the location and appearance
of the target residence. In addition, Scouten mentioned that an unusual van
with a “dualie [sic] axle” was parked in the driveway of the target residence.
Scouten also told the officers that they would have to enter the target residence
through a side door because the target residence had burglar bars around all
windows.
      As noted above, Barnes and McAlpin were responsible for maintaining
visual contact with the residence in order to track the confidential informant
and ensure that the suspect did not leave. Moreover, Scouten’s case report
indicates that McAlpin was assigned to carry door breaching tools and was “to
use these tools to gain entry into the residence if needed.”        According to
Scouten’s case report, the vehicle in which Barnes and McAlpin rode followed
the confidential informant’s vehicle. It appears that Barnes, McAlpin, and the
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                                     No. 17-60287
other officer were the only ones who followed the confidential informant all the
way to the target residence.
      Despite the importance of the briefing and their key leadership roles in
the buy-bust operation (e.g., breaching the target residence if necessary,
maintaining visual surveillance), Barnes and McAlpin both failed to absorb
critical details of the plan. When asked whether he knew the correct address
of the target residence from the briefing, Barnes testified, “I knew that area. I
didn’t know the exact house.” McAlpin also testified that he was unaware of
the exact address. When asked if he saw the confidential informant’s vehicle
pull into the driveway of the target residence, McAlpin responded that he did
not. As noted above, all of this took place while it was daylight. We hold that
the district court relied on these facts in determining not to grant summary
judgment to the officers.
      We have emphasized that “[w]hat’s reasonable for a particular officer
depends on his role in the search.”             McLendon, 2017 WL 4838405, at *6
(quoting Hunt v. Tomplait, 301 F. App’x 355, 362 n.8 (5th Cir. 2008)). In its
opinion and order denying McLendon’s summary-judgment motion on
qualified immunity, the district court found that the investigative report on
the entry into the Gerharts’ residence “indicates that inattentiveness on the
part of the officers was the direct cause of the Gerhart incident.” Rankin
County, 2017 WL 1238028, at *8.              Consistent with our prior opinion in
McLendon, we hold that fact issues on whether Barnes and McAlpin violated
the Fourth Amendment precluded the district court from granting summary
judgment to the officers on the unlawful-entry claim. 3


      3 Arguments about exigent circumstances do not alter this conclusion. As we stated
in McLendon, “[t]he danger facing the [confidential informant] was undoubtedly an exigent
circumstance. But the [confidential informant] was at the target residence, not the Gerhart
residence.” 2017 WL 4838405, at *7. Barnes’s and McAlpin’s “determination that the danger
was inside the Gerhart residence rather than the target residence was not reasonable”
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                                     No. 17-60287
       As for the second prong of the qualified-immunity analysis, we held in
McLendon that it was clearly established at the time of the alleged unlawful
entry that “an officer must make reasonable, non-feeble efforts to correctly
identify the target of a search—even if those efforts prove unsuccessful.”
McLendon, 2017 WL 4838405, at *5 (citing Rogers v. Hooper, 271 F. App’x 431,
435 (5th Cir. 2008)). Accordingly, a fact issue on whether Barnes and McAlpin
violated clearly established law precluded the district court from granting
summary judgment to the officers on the unlawful-entry claim.
                                  B. Excessive Force
       McAlpin also appeals the denial of summary judgment on qualified-
immunity grounds with regard to the excessive-force claim asserted against
him.    Whether a use of force is excessive and therefore a constitutional
violation depends on whether there was “(1) an injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” Poole v. City of Shreveport,
691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564
F.3d 379, 382 (5th Cir. 2009)).
       We apply the Graham factors to determine whether the force used is
“excessive” or “unreasonable.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.
2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). These factors
include “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396. “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the


because there is a fact issue on whether the officers failed to take reasonable affirmative
steps to ensure they knew the correct address. See id.

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                                  No. 17-60287
20/20 vision of hindsight” with the recognition that “police officers are often
forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 396–97 (citation omitted).
      In addition, the injury must be more than de minimis to be cognizable.
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). “[T]he amount of
injury necessary to satisfy our requirement of ‘some injury’ and establish a
constitutional violation is directly related to the amount of force that is
constitutionally permissible under the circumstances.” Ikerd v. Blair, 101 F.3d
430, 434–35 (5th Cir. 1996).
      Here, viewing the facts in the light most favorable to the plaintiffs, there
is a fact issue as to whether McAlpin kicked Brett Gerhart in the head
repeatedly after throwing Brett facedown onto the concrete porch. Joseph
Gerhart, Brett’s father, testified that he heard his son screaming “I’m down,
I’m down,” and that the officer was kicking his son while his son was already
on the ground. Moreover, Brett’s father testified that McAlpin then brought
Brett into the house, and rather than handcuffing him, pinned Brett to the
floor with his knee, shoved a pistol in his face, and said, “If you move, I’ll blow
your f---ing head off.” We hold that the district court relied on these facts in
determining not to grant summary judgment to McAlpin on the excessive-force
claim.
      Applying the Graham factors, we note that there is a fact issue as to
whether Brett posed an immediate threat to the officers’ safety when he was
lying prone on the concrete yelling that he was already down and whether
Brett was actively resisting or attempting to evade arrest. Furthermore, there
is some evidence that injuries to Brett’s face resulted “directly and only from a
use of force that was clearly excessive.” See Poole, 691 F.3d at 628.


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                                       No. 17-60287
       As to the second prong of the qualified-immunity analysis, we reiterate
our holding in Brown v. Lynch that “[a]t the time of the incident, the law was
clearly established in this circuit that repeatedly striking a non-resisting
suspect is excessive and unreasonable force.” 524 F. App’x 69, 81 (5th Cir.
2013) (unpublished) (citing Anderson v. McCaleb, 480 F. App’x 768, 773 (5th
Cir. 2012); Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008); Goodson v. City
of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).                   Thus, fact issues
precluded granting summary judgment to McAlpin on the excessive-force
claim.
                                             III.
                              The Mississippi Tort Claim
       The district court also denied the officers summary judgment on the
Gerharts’ state-law claim of reckless infliction of emotional distress. 4 Barnes
and McAlpin argue that we should exercise pendent appellate jurisdiction to
review the Gerharts’ state-law tort claim. The Gerharts do not contest this
jurisdictional argument. Nonetheless, we have the responsibility to determine
the basis of our jurisdiction. Alvidres-Reyes v. Reno, 180 F.3d 199, 203 (5th
Cir. 1999).
       “The denial of immunity under Mississippi law, like a denial under
federal law, is appealable under the collateral order doctrine. Lampton v. Diaz,
661 F.3d 897, 899 (5th Cir. 2011); see also Hinds County v. Perkins, 64 So. 3d
982, 986 (Miss. 2011) (en banc) (noting that “denials of immunity at the
summary judgment stage are reviewed via the interlocutory appeal process”).
We have held that “[i]n the interest of judicial economy, this court may exercise


       4 While the district court refers to the tort claim as one for “reckless” rather than
“intentional” infliction of emotional distress, we need not resolve whether the Gerharts
properly pleaded a claim for reckless infliction of emotional distress. This is because neither
claim here overcomes the Mississippi Tort Claims Act provision of immunity for government
employees acting within the scope of employment and sued in their personal capacities.
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                                  No. 17-60287
its discretion to consider under pendant appellate jurisdiction claims that are
closely related to the issue properly before us.” Morin, 77 F.3d at 119 (footnote
omitted). Exercising this discretion is appropriate when, as here, we confront
a claim of immunity under state law regarding the same conduct at issue in
the qualified-immunity context. See id. Otherwise, were we “to refuse to
exercise jurisdiction over the state law claims, our refusal would defeat the
principal purpose of allowing an appeal of immunity issues before a
government employee is forced to go to trial.” Id. at 119–20 (footnote omitted).
      The Mississippi Supreme Court has recognized that “any tort claim filed
against a governmental entity or its employee shall be brought only under the
[Mississippi Tort Claims Act].” Conrod v. Holder, 825 So. 2d 16, 19 (Miss. 2002)
(citation omitted). Under Mississippi law:
      An employee may be joined in an action against a governmental
      entity in a representative capacity if the act or omission
      complained of is one for which the governmental entity may be
      liable, but no employee shall be held personally liable for acts or
      omissions occurring within the course and scope of the employee’s
      duties.

Miss. Code. Ann. § 11-46-7(2) (emphasis added). “The [Mississippi Tort Claims
Act] contains an exception to this immunity if an officer’s conduct ‘constituted
fraud, malice, libel, slander, defamation or any criminal offense other than
traffic violations . . . .’” Rogers v. Lee County, 684 F. App’x 380, 391 (5th Cir.
2017) (unpublished) (quoting Miss. Code. Ann. § 11-46-5(2)).
      The Mississippi Supreme Court “has been consistent in rejecting the
viability of claims against public employees where their political subdivision
employer has been eliminated as a defendant.” Conrod, 825 So. 2d at 19
(quoting Cotton v. Paschall, 782 So. 2d 1215, 1218 (Miss. 2001)). “[U]nless the
action is brought solely against an employee acting outside of the scope of his
employment, the government entity must be named and sued as the party in

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                                  No. 17-60287
interest under the Tort Claims Act.” Id. (citation omitted). Moreover, it is “a
rebuttable presumption that any act or omission of an employee within the
time and at the place of his employment is within the course and scope of his
employment.” Miss. Code. Ann. § 11-46-5(3).
      The Gerharts do not contest that the officers were acting within the
course and scope of their employment here, nor do they argue that Barnes’s
and McAlpin’s conduct constituted malice or criminal behavior. The district
court dismissed Defendants Rankin County, Mississippi; Rankin County
Sheriff’s Office; and McAlpin in his official capacity. The Gerharts allege that
McAlpin was an employee of Rankin County and/or Rankin County Sheriff’s
Office at the time of the incident. In addition, the district court dismissed
Defendants the City of Pearl, Mississippi and Barnes in his official capacity.
The Gerharts allege that Barnes “was at all times material hereto an officer
employed by the Defendants, the Pearl Police Department and the City of
Pearl, Mississippi” and that “[h]is acts of commission or omission are
vicariously attributed to the Defendant, the City of Pearl, Mississippi.”
      Thus, the immunity provided by the Mississippi Tort Claims Act shields
Barnes and McAlpin from personal liability.        In allowing the Gerharts to
proceed with this tort claim against the officers in their individual capacities,
the district court erred. Thus, we dismiss the Gerharts’ state-law tort claim
against the officers in their individual capacities.




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                                        No. 17-60287
                                              IV.
       Accordingly, we AFFIRM the district court’s judgment denying Barnes
and McAlpin summary judgment as to qualified immunity on the Gerharts’
constitutional claims, and we REVERSE and render judgment on the
Mississippi tort claim. 5




       5 Barnes requests that we reassign the case to a different district court if the case is
remanded. McAlpin does not make this request. The Gerharts contend that Defendants’
strategic litigation choices rather than the district court’s actions are the main reason for the
lawsuit spanning six years. In addition, the Gerharts amended their complaint four times,
and their fourth amended complaint was filed in December 2016. “A federal court of appeals
has the supervisory authority to reassign a case to a different trial judge on remand.” United
States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999); see Johnson v. Sawyer, 120 F.3d 1307,
1333 (5th Cir. 1997); 28 U.S.C. § 2106. “However, this is an extraordinary power and should
rarely be invoked.” Winters¸ 174 F.3d at 487. This case does not demand such an exercise of
our authority, and we deny Barnes’s request for reassignment.

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