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

                                                               FILED
                                                            November 19, 2007

                              No. 06-60885              Charles R. Fulbruge III
                                                                Clerk

DONALD E HARRIS

                                       Plaintiff-Appellee
v.

GEORGE PAYNE, Harrison County Sheriff, Individually and in His Official
Capacity as Sheriff of Harrison County, Mississippi

                                       Defendant-Appellant


                           Consolidated with
                             No. 06-60967


DONALD E HARRIS

                                       Plaintiff-Appellant
v.

HARRISON COUNTY MISSISSIPPI; SHARON WALDRUP; JAMES ZUGG;
RHONDALYN ROGERS

                                       Defendants-Appellees


              Appeals from the United States District Court
                 for the Southern District of Mississippi
                         USDC No. 2:03-CV-604


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
                            No. 06-60885 c/w No. 06-60967

PER CURIAM:*
       Before the court are consolidated appeals regarding the liability of a
county and several of its employees for the erroneous four-month incarceration
of Plaintiff Donald E. Harris (“Harris”). Although it is clear that Harris should
never have been incarcerated, there is no evidence that the actions of the
individual defendants amounted to more than negligence. As a result, Harris
cannot establish a constitutional violation, and Mississippi law bars his tort
claims. Consequently, we AFFIRM in part and REVERSE in part.
                           I. FACTUAL BACKGROUND
       On September 28, 2002, Harris was arrested in Forrest County,
Mississippi, on a felony charge for driving under the influence. Harris posted
bond after spending approximately three days in jail. However, before releasing
him, the Forrest County Sheriff’s Office contacted the Harrison County Sheriff’s
Office to find out if Harrison County wanted to place a hold on Harris. It seems
a grand jury in Harrison County had indicted a “Donald Harris” for shoplifting,
and an alias capias warrant had been issued for his arrest. In response to
Forrest County’s inquiry, Jeannie Carlisle (“Carlisle”), an employee in the
Harrison County Sheriff’s Office, faxed a letter and the alias capias warrant to
Forrest County on September 30, 2002, confirming the detainer on Harris. The
letter identified “Donald Harris” as a black male and listed his social security
number and date of birth. Harris is a white male with a different social security
number and date of birth.
       That same day, Harrison County Prisoner Transport Deputies James Zugg
(“Zugg”) and Sharon Waldrop (“Waldrop”), who are Defendants-Appellees in this
case, were in route to Harrison County after picking up another inmate in


       *
         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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Rankin County. The Harrison County Adult Detention Center (“HCADC”)
contacted Zugg and Waldrop by cell phone and instructed them to pick up Harris
from the Forrest County jail. Typically, the HCADC would provide Zugg and
Waldrop with paperwork identifying the individual they were to pick up;
however, because Zugg and Waldrop were already on the road, the HCADC was
unable to fax the paperwork to them.
      When Zugg and Waldrop arrived at the Forrest County jail, Waldrop
explained that they did not have any paperwork on Harris. A Forrest County
employee informed her that Forrest County had received all the necessary
paperwork. Zugg then retrieved Harris and placed him in handcuffs. Harris
protested once to Zugg and Waldrop that they were detaining the wrong person,
and Zugg told Harris to address the matter with the HCADC booking officer.
Zugg and Waldrop turned Harris over to the booking officer upon arrival at the
HCADC, but Harris made no further protest at that time.
      Normal procedure at the HCADC called for Defendant-Appellee Deputy
Rhondalyn Rogers (“Rogers”), an inmate records clerk, to receive advance notice
of an inmate’s arrival. Rogers would then create a Uniform Custody Report
(“Report”) for the inmate using the biographical information from the
indictment, warrant, and other paperwork. After the inmate was booked, she
would compare the information in the Report to the information entered into the
computer by the booking officer. In such circumstances, the discrepancies in
Harris’s information would have been apparent, as the Report would have
indicated that Harris was black based on his paperwork while the booking officer
would have noted that he was white. However, when an inmate arrived after
normal working hours, Rogers would not be present and the transport officer
would fill out the Report. Rogers testified that it was not unusual for a transport
officer to fill out the Report by asking the inmate for his biographical
information, instead of relying on the paperwork. Rogers stated that her job the


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next morning was to compare the Report with the information entered into the
computer by the booking officer, checking to make sure it was complete and free
of typographical errors.
      In this case, Harris arrived at 6:15 p.m., which was after normal working
hours, and Rogers was not present. Zugg testified that Waldrop filled out the
Report by asking Harris for his biographical information. During her review the
next day, Rogers did not notice any discrepancy between the Report and the
information entered by the booking officer, and Harris admits he has no evidence
to the contrary.
      Harris’s only other protest of innocence came two or three days after he
arrived at the HCADC. On or around October 2, 2002, Harris claims that
Defendant-Appellant George Payne (“Payne”), Sheriff of Harrison County,
walked through Harris’s cell block. Harris approached Payne and told him that
he (Harris) was the “wrong person.” Payne then allegedly told Harris that
everybody says that and that Harris needed to sit down and shut his mouth.
Payne does not recollect this conversation and asserts that had Harris told him
he was the wrong person, he would have looked into the matter, as was his usual
practice.
      Harris had no further personal contact with Payne until his release on
January 29, 2003. Harris also made no further protest of mistaken identity to
any government actor during that time. However, his mother, Helen Christine
Harris (“Ms. Harris”) testified that she repeatedly contacted various Harrison
County officials by phone to explain her son’s innocence. She does not claim to
have spoken to Payne, and Payne has no recollection of speaking to her.
      Around January 28, 2003, the Harrison County District Attorney’s Office
notified Captain Rick Gaston that the Harris in custody might not be the Donald
Harris identified in the alias capias warrant. Further investigation confirmed



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this, and Harrison County released Harris on January 29, 2003, after four
months of incarceration.
                       II. PROCEDURAL HISTORY
      Harris filed suit on December 12, 2003, against Forrest County, Harrison
County, Payne, and the sheriff of Forrest County. Harris subsequently amended
his complaint to add as defendants various Forrest County and Harrison County
officials, including Zugg, Waldrop, and Rogers.      Harris’s claims included
violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution, brought pursuant to 42 U.S.C. § 1983, and
numerous Mississippi state law claims. The Forrest County defendants settled,
and the remaining defendants filed motions for summary judgment.
      The district court granted summary judgment on Harris’s federal claims
on the ground of qualified immunity to all of the individual defendants except
Payne.   The district court also granted summary judgment to all of the
individual defendants except Payne on Harris’s state law claims pursuant to the
Mississippi Tort Claims Act. Further, the district court granted summary
judgment to Harrison County, ruling that Harris did not show his erroneous
incarceration was the result of a policy or custom of the county.
      Payne now appeals the denial of his motion for summary judgment. We
have jurisdiction over Payne’s appeal pursuant to the collateral order doctrine.
See Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). Harris appeals the
grant of summary judgment to Zugg, Waldrop, Rogers, and Harrison County.
We granted Harris leave to appeal under 28 U.S.C. § 1292(b).
                       III. STANDARD OF REVIEW
      With respect to Harris’s appeal, we review grants of summary judgment,
including grants based on qualified immunity, de novo, applying the same
standard as the district court. Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007); Stidham v. Tex. Comm’n on Private Sec., 418 F.3d 486,

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490 (5th Cir. 2005). Summary judgment is appropriate when, after considering
the pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits, “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Bulko
v. Morgan Stanley DW Inc., 450 F.3d 622, 624 (5th Cir. 2006).
      Our consideration of Payne’s appeal of the denial of qualified immunity is
more limited, however. See Gobert, 463 F.3d at 344-45. When reviewing the
denial of qualified immunity on summary judgment, we are permitted to decide
only whether issues of fact are material, which is a question of law. Reyes v. City
of Richmond, 287 F.3d 346, 351 (5th Cir. 2002); Bazan ex rel. Bazan v. Hidalgo
County, 246 F.3d 481, 490 (5th Cir. 2001). We are not permitted to decide, and
indeed we lack jurisdiction to decide, whether fact issues are genuine. Reyes, 287
F.3d at 351; Bazan, 246 F.3d at 490. Therefore, we must accept the district
court’s decision regarding which fact issues are genuine and review de novo the
purely legal question of whether those genuine fact issues are also material. See
Gobert, 463 F.3d at 345; see also Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.
2004) (en banc) (stating that the court may “consider only whether the district
court erred in assessing the legal significance of the conduct that the district
court deemed sufficiently supported for purposes of summary judgment”).
                               IV. DISCUSSION
      On appeal, Harris contends that the district court erred in determining
that Zugg, Waldrop, and Rogers were entitled to the defense of qualified
immunity with respect to Harris’s federal claims and that the Mississippi Tort
Claims Act barred Harris’s Mississippi law claims. Harris also asserts that the
district court incorrectly granted summary judgment to Harrison County. In his
appeal, Payne contends that the district court erred in denying his motion for
summary judgment on Harris’s federal and state law claims. We will first



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address Harris’s federal claims against all of the individual defendants—Zugg,
Waldrop, Rogers, and Payne.
A.    Individual Defendants - Federal Claims
      With respect to Harris’s federal claims, we must decide whether the
district court properly determined that Zugg, Waldrop, and Rogers were entitled
to qualified immunity on Harris’s constitutional claims, but that Payne was not
so entitled. Harris’s complaint makes claims against the individual defendants
under the Fourth, Fifth, Eighth, and Fourteenth Amendments; however, he only
presents arguments on the Fourth and Fourteenth Amendments on appeal.
Therefore, we will confine our analysis to his claims under those amendments.
See Robinson v. Guarantee Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir.
2004) (“Failure adequately to brief an issue on appeal constitutes waiver of that
argument.”).
      1.    Qualified Immunity
      Qualified immunity shields government officials from both liability and
suit when they are acting within their discretionary authority and their conduct
does not violate clearly established statutory or constitutional law of which a
reasonable person would have known. Wallace v. County of Comal, 400 F.3d
284, 289 (5th Cir. 2005); see also Saucier v. Katz, 533 U.S. 194, 200-01 (2001)
(“Qualified immunity is an entitlement not to stand trial or face the other
burdens of litigation.”) (internal quotation marks omitted). It is a defense that
must be pleaded by the government official and should be addressed at an early
stage in the litigation. Saucier, 533 U.S. at 200-01; Siegert v. Gilley, 500 U.S.
226, 231 (1991).
      We employ a two-step test to analyze claims of qualified immunity.
Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007). The first question we
must answer is whether the plaintiff’s allegations, if true, demonstrate the
violation of a clearly established right. Wallace, 400 F.3d at 289; see also

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Saucier, 533 U.S. at 201 (defining the threshold question as “[t]aken in the light
most favorable to the [plaintiff], do the facts alleged show the officer’s conduct
violated a constitutional right?”). A right is “clearly established” when its
contours are “sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Wooley v. City of Baton Rouge, 211 F.3d
913, 919 (5th Cir. 2000) (internal quotation marks omitted). If the plaintiff has
alleged the violation of a clearly established right, we proceed to the second step
of the analysis and determine whether the defendant’s conduct was objectively
reasonable under the law at the time of the incident. Michalik v. Hermann, 422
F.3d 252, 258 (5th Cir. 2005).
       In the context of a summary judgment motion, the government official
need only plead qualified immunity, which then shifts the burden to the
plaintiff. Id. at 262. The plaintiff must rebut the defense by establishing that
the government official’s allegedly wrongful conduct violated clearly established
law and that genuine issues of material fact exist regarding the reasonableness
of the government official’s conduct. Id. We now analyze Harris’s claims using
this framework.
       2.     Fourth Amendment Claim
       We turn first to Harris’s claims under the Fourth Amendment, which are
two-fold.     He first asserts that Zugg and Waldrop violated his Fourth
Amendment rights by arresting him without probable cause. He then claims
that Payne violated his Fourth Amendment rights by not presenting him to a
judicial officer within forty-eight hours of his arrest.1




       1
         Although Harris includes mention of Rogers in his Fourth Amendment claim, he
makes no allegations that she was involved in the decision to arrest Harris. Her actions, thus,
will be analyzed under Harris’s Fourteenth Amendment claims.

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            a.     Zugg and Waldrop
      To survive the first step of the qualified immunity analysis, Harris must
allege facts that demonstrate that Zugg and Waldrop violated his Fourth
Amendment rights. See Wallace, 400 F.3d at 289. Harris has asserted that Zugg
and Waldrop arrested him without probable cause, violating several policies of
the sheriff’s office in the process, and that they should have verified his identity
by looking at the paperwork. The undisputed facts are that Zugg and Waldrop
picked up Harris from Forrest County and transported him to the HCADC
without ever receiving any paperwork regarding Harris.
      The Fourth Amendment requires that probable cause exist before the
government may arrest an individual. U.S. CONST. amend. IV; Freeman v. Gore,
483 F.3d 404, 411 (5th Cir. 2007). Here, probable cause was present, as Harris
was arrested pursuant to a warrant that had been issued following a grand jury
indictment. “A warrant of arrest can be based upon an indictment because the
grand jury’s determination that probable cause existed for the indictment also
establishes that element for the purpose of issuing a warrant for the
apprehension of the person so charged.” Giordenello v. United States, 357 U.S.
480, 487 (1958); Campbell v. City of San Antonio, 43 F.3d 973, 976 (5th Cir.
1995) (noting that an arrest warrant may be based on a grand jury indictment
which establishes probable cause). Harris has not argued that the warrant was
not based on probable cause or that it was faulty or improperly obtained.
Consequently, probable cause existed to arrest Harris.
      That Harris was not the “Donald Harris” named in the warrant does not
create a Fourth Amendment violation. The Supreme Court has stated 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)
(internal quotation marks omitted). The Fifth Circuit has followed this rule,

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stating that “[t]he 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). Under this standard, the
use of the alias capias warrant to detain Harris does not violate the Fourth
Amendment as long as Zugg and Waldrop’s actions were reasonable.
      Harris asserts that Zugg and Waldrop’s actions were not reasonable
because they did not verify his identity before taking him into custody. This
court encountered a similar situation in Blackwell, 34 F.3d at 300-04. In that
case, a police officer arrested Mindy Blackwell, who had the same first name and
general appearance as a person described in a warrant. Id. at 300. Blackwell
gave the officer her driver’s license, which showed she had a different last name
than the warrant described, but the officer did not look at it. Id. On appeal, we
stated that the critical question was “not whether a reasonable officer would
have looked at the driver’s license to confirm the name and other identifying
information” but rather whether a reasonable officer could believe Blackwell was
the suspect. Id. at 304. We ruled that the officer was entitled to qualified
immunity, even if in hindsight he could have taken other reasonable actions to
determine Blackwell’s identity. Id.
      Here, the HCADC told Zugg and Waldrop that they needed to retrieve
Harris, and the Forrest County Sheriff’s Office told Zugg and Waldrop that
Forrest County had all the necessary paperwork. Zugg and Waldrop’s reliance
on these statements to establish that Harris was the proper individual is
reasonable, even if they could have taken other reasonable actions to verify his
identity. See United States v. Walker, 960 F.2d 409, 416 (5th Cir. 1992) (“The
arresting officer does not have to have personal knowledge of all the facts
constituting probable cause; it can rest upon the collective knowledge of the
police when there is communication between them.”) (internal quotation marks

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omitted); see also United States v. Holland, 438 F.2d 887, 888 (6th Cir. 1971)
(“The fact that the officers did not have physical possession of the warrant at the
time of the arrest is of no consequence to the validity of the arrest.”).
      Harris also makes much of the fact that Zugg and Waldrop violated
several general orders of the Sheriff’s office by not having the paperwork with
them and ensuring that they had the correct individual. The violation of a
general order, however, is not the same as a violation of the Constitution. See
Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (stating that
“even a negligent departure from established police procedure does not
necessarily signal violation of constitutional protections”); see also United States
v. De Leon-Reyna, 930 F.2d 396, 399-400 (5th Cir. 1991) (en banc) (finding no
Fourth Amendment violation when officer did not use “code word” policy when
reading license plate to dispatcher, resulting in mistaken detention of vehicle).
Therefore, Harris’s allegations that Zugg and Waldrop violated general orders
do not necessarily state a constitutional claim. As shown above, Zugg and
Waldrop’s actions were reasonable and do not create a right to relief under the
Fourth Amendment. That Zugg and Waldrop also violated internal policies does
not transform Harris’s claim into one of constitutional dimension.
      Harris further argues that Cozzo v. Tangipahoa Parish Council-President
Government, 279 F.3d 273 (5th Cir. 2002), supports his claim that Zugg and
Waldrop were required by the Fourth Amendment to verify his identity. In
Cozzo, a deputy evicted the plaintiff from her home on the basis of a TRO that
did not actually require her eviction. Id. at 279. The deputy conceded he had
violated the Fourth Amendment, and the court’s analysis concerned the second
prong of the qualified immunity test. Id. at 284-85. There, the court ruled that
the jury was permitted to find that the deputy violated the plaintiff’s rights,
because the plaintiff actually pointed out to the deputy where he was misreading
the TRO. See id. at 285. Here, unlike Cozzo, Zugg and Waldrop did not have

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any exculpatory paperwork with them that would have exonerated Harris had
they considered it.
      In sum, and taking Harris’s factual allegations as true, Harris has not
alleged that Zugg and Waldrop violated a clearly established constitutional
right. Probable cause existed for Harris’s arrest because Zugg and Waldrop
acted pursuant to a facially valid warrant and did not act unreasonably in doing
so, even though Harris was not ultimately the man named in the warrant.
Therefore, the district court correctly determined that Zugg and Waldrop were
entitled to qualified immunity on this claim, and we affirm that portion of the
district court’s decision.
             b.    Payne
      With respect to Payne, Harris contends that Payne’s failure to present him
to a judicial officer within forty-eight hours of his arrival at the HCADC
constitutes a violation of the Fourth Amendment. The district court did not
specifically address this claim, but because it denied summary judgment to
Payne, we consider the claim on appeal.
      To establish his Fourth Amendment claim against Payne, Harris relies on
Rule 6.03 of Mississippi’s Uniform Rules of Circuit and County Court Practice,
which states, in part:
      Every person in custody shall be taken, without unnecessary delay
      and within 48 hours of arrest, before a judicial officer or other
      person authorized by statute for an initial appearance.
      Upon the defendant’s initial appearance, the judicial officer or other
      person authorized by statute shall ascertain the defendant’s true
      name and address, and amend the formal charge if necessary to
      reflect this information. The defendant shall be informed of the
      charges against him/her and provided with a copy of the complaint.
Harris asserts that by not taking him to a judicial officer after his arrival at the
HCADC, Payne violated the Fourth Amendment. We disagree.



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      The Mississippi Supreme Court has held that a violation of Rule 6.03 does
not necessarily equate to a Fourth Amendment violation. Lawrence v. State, 869
So. 2d 353, 355-56 (Miss. 2003) (en banc) (ruling that because arrest warrant
was issued within forty-eight hours of defendant’s arrest, failure to provide
initial appearance did not amount to Fourth Amendment violation). This
holding accords with Supreme Court precedent on the issue of initial
appearances. In Gerstein v. Pugh, the Court held that the Fourth Amendment
requires a state to “provide a fair and reliable determination of probable cause
as a condition for any significant pretrial restraint of liberty, and this
determination must be made by a judicial officer either before or promptly after
arrest.” 420 U.S. 103, 124-25 (1975) (footnotes omitted). The Court has also
stated that “since the probable cause standard for pretrial detention is the same
as that for arrest, a person arrested pursuant to a warrant issued by a
magistrate on a showing of probable[ ]cause is not constitutionally entitled to a
separate judicial determination that there is probable cause to detain him
pending trial.” Baker v. McCollan, 443 U.S. 137, 143 (1979).
      Under these cases, the allegation that Payne did not provide Harris with
an initial appearance in violation of Rule 6.03 does not state a claim under the
Fourth Amendment. The grand jury determined that there was probable cause
that Donald Harris committed a crime when it indicted Donald Harris, and the
alias capias warrant was based on the indictment. As a result, probable cause
for Harris’s pretrial detention existed, and Harris was not constitutionally
entitled to a second determination of probable cause. Consequently, Harris’s
Fourth Amendment claim against Payne does not state a claim for a violation of
clearly established law, and the district court erred when it denied qualified
immunity to Payne on this claim. Therefore, we reverse that portion of the
district court’s decision.



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       3.    Fourteenth Amendment
       Harris next asserts that Zugg, Waldrop, Rogers, and Payne violated his
rights under the Fourteenth Amendment by depriving him of his liberty without
due process of law. The district court determined that Zugg, Waldrop, and
Rogers were entitled to qualified immunity on this claim, but that Payne was
not.
       The Supreme Court confronted a situation in which a plaintiff brought suit
for the violation of his due process rights after he was erroneously incarcerated
in Baker v. McCollan, 443 U.S. 137 (1979).         In Baker, Leonard McCollan
obtained a duplicate of his brother Linnie’s driver’s license that was identical to
Linnie’s in all respects except that Leonard’s picture was on it. Id. at 140.
Leonard was then arrested on narcotics charges, but was booked and released
as Linnie. Id. at 140-41. Linnie was later stopped for running a red light. Id.
at 141. The police ran a routine warrant check and discovered the warrant for
Linnie. Id. Linnie spent three days in custody before the police compared his
appearance to the file photograph of Leonard and released him. Id. Linnie
brought suit for the violation of his rights under the Fourteenth Amendment.
Id. The Fifth Circuit determined that T.L. Baker, the sheriff, was not entitled
to qualified immunity because there was a question as to whether the procedures
that Baker instituted to identify detainees were reasonable. Id. at 141-42.
       On appeal, the Supreme Court did not reach the issue of the
reasonableness of Baker’s procedures, instead holding that Linnie failed the first
step of the qualified immunity analysis by not alleging the violation of a clearly
established right under the United States Constitution. Id. at 143-44. Linnie
claimed that Baker deprived him of his liberty by intentionally failing to
investigate and determine that the wrong man had been imprisoned. Id. at 143.
The Supreme Court, however, stated that the Fourteenth Amendment does not
protect against all deprivations of liberty, but rather only those accomplished

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“without due process of law.” Id. at 145 (internal quotations marks omitted).
The Court went on to explain:
      Given the requirements that arrest be made only on probable cause
      and that one detained be accorded a speedy trial, we do not think a
      sheriff executing an arrest warrant is required by the Constitution
      to investigate independently every claim of innocence, whether the
      claim is based on mistaken identity or a defense such as lack of
      requisite intent. Nor is the official charged with maintaining
      custody of the accused named in the warrant required by the
      Constitution to perform an error-free investigation of such a claim.
      The ultimate determination of such claims of innocence is placed in
      the hands of the judge and the jury.
Id. at 145-46.
      The Court, however, did not entirely shut the door on the possibility that
the erroneous detention of an innocent person could result in a constitutional
claim. Instead, the Court stated, “[o]bviously, one in [Linnie]’s position could not
be detained indefinitely in the face of repeated protests of innocence even though
the warrant under which he was arrested and detained met the standards of the
Fourth Amendment.” Id. at 144. The Court further stated, “[w]e may even
assume, arguendo, that, depending on what procedures the State affords
defendants following arrest and prior to actual trial, mere detention pursuant
to a valid warrant but in the face of repeated protests of innocence will after the
lapse of a certain amount of time deprive the accused of ‘liberty . . . without due
process of law.’” Id. at 145. The Court, however, did not elaborate further on
what circumstances might give rise to a due process violation.
      The Court in Baker originally granted certiorari to determine whether an
allegation of negligence was sufficient to state a claim under § 1983, but it
ultimately did not reach that issue. Id. at 139-40. In a subsequent case, the
Court concluded that “the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life, liberty, or
property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). The Fifth Circuit has

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had occasion to apply the principles in Baker and Daniels with respect to due
process claims arising from erroneous detentions or incarcerations.
      In Sanchez v. Swyden, this court considered the case of Oscar Sanchez,
who was detained by police for twenty-six hours because his name and general
description matched those on a warrant from Tennessee. 139 F.3d 464, 465 (5th
Cir. 1998). Although the police were faxed further information several hours
after Sanchez’s detention that indicated that Sanchez was not the individual
sought, the police took no action until the judge at Sanchez’s probable cause
hearing ordered the police to confirm Sanchez’s identity, at which time he was
released. Id. at 465-66. We held that Sanchez’s allegations amounted to no
more than mere negligence and thus did not state a claim for the violation of a
clearly established constitutional right. Id. at 469.
      Similarly, in Simmons v. McElveen, the plaintiff spent eight months in jail
after being identified as the assailant in an armed robbery, even though his
fingerprints did not match those of the assailant. 846 F.2d 337, 338-39 (5th Cir.
1988). This court held that, in hindsight, the police should have looked at the
fingerprints; however, the allegations of police misconduct did not exceed mere
negligence, which was not actionable. Id. at 339.
      This court reached the opposite result in Sanders v. English, 950 F.2d
1152 (5th Cir. 1992). In Sanders, Floyd Sanders was arrested after being
identified as the assailant in an armed robbery. Id. at 1155-56. Curtis McCoy,
the arresting officer, subsequently received credible information that Sanders
was not the assailant but did not bring the information to the attention of the
police chief or the prosecutor. Id. at 1156-57. Sanders remained incarcerated
for fifty days as a result. Id. at 1158. We held that McCoy was not entitled to
qualified immunity on summary judgment because there was a fact issue as to
whether McCoy “failed to release [Sanders] even after [McCoy] knew (or should
have known) that Sanders had been misidentified.” Id. at 1162 (characterizing

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the facts as demonstrating that the officer “knowingly and willfully ignored
substantial exculpatory evidence”). We distinguished Baker by reasoning that
Baker dealt with the failure to take affirmative steps to investigate the suspect’s
innocence, rather than the failure to act on known information. Id. We held,
however, that Sheriff English, whose involvement in the case consisted of
hearing a few witnesses claim that Sanders was innocent, was entitled to
qualified immunity, as his actions in failing to investigate Sanders’s innocence
were at most negligent. Id. at 1159-60.
       Taking all of these cases into account, allegations that an officer had
exculpatory information in his possession but did not take the affirmative step
of reviewing it are not sufficient to state a due process claim. See Sanchez, 139
F.3d at 469 (“That law enforcement officials were in possession of information
that exculpated Sanchez does not change [the qualified immunity] result.”)
Instead, as in Sanders, the plaintiff must demonstrate that the officer knew or
should have known that the plaintiff was wrongly detained.
       This idea is consistent with the cases cited by Harris. In Gay v. Wall, the
Fourth Circuit held that claims that the officer had actual knowledge of the
defendant’s innocence, but continued to detain him, fall outside the limitation
of Baker and are actionable. 761 F.2d 175, 178-79 (4th Cir. 1985). Similarly, in
Cozzo, the officer who erroneously evicted the plaintiff pursuant to a TRO was
actually shown by the plaintiff that the TRO did not call for her eviction. 279
F.3d at 285. Therefore, the cases cited by Harris stand only for the proposition
that an officer’s actual knowledge of a suspect’s innocence can overcome the
limitation of Baker, which is consistent with the Fifth Circuit cases cited above.2


       2
        Harris also relies on Jones v. City of Jackson, 203 F.3d 875, 880-81 (5th Cir. 2000), in
which this court denied qualified immunity to a sheriff and his deputy when an individual was
wrongly incarcerated for nine months. While Jones does provide support for Harris’s
arguments, we find that the majority of precedent in the Fifth Circuit and Supreme Court
militates toward granting qualified immunity. The Jones opinion does not cite any of the

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      Using the principles described above, we must conclude that Harris has
failed to state a claim against any of the individual defendants for the violation
of a clearly established constitutional right.           As described in Baker, the
Constitution does not require police officers to “investigate independently every
claim of innocence . . . .” 443 U.S. at 145-46. Further, Harris’s one protest of
innocence to Zugg and Waldrop and one protest to Payne are not sufficient to fall
under the exception created in Baker for individuals who make “repeated
protests” of innocence.
      Harris has also not alleged that any act by Zugg, Waldrop, Rogers, or
Payne rises beyond the level of negligence. See Sanchez, 139 F.3d at 469 (“[W]e
have required proof that the official’s actions went beyond mere negligence
before th[e] tort [of false imprisonment] takes on constitutional dimensions.”).
While all of the individuals had access to information that would have
exonerated Harris, none of them was aware of it, nor has Harris shown that any
of the individuals should have been aware of it. Under our precedent, these
allegations are insufficient to state a claim for the violation of a constitutional
right. As a result, all of the individual defendants, including Payne, are entitled
to qualified immunity. Therefore, we affirm the district court’s ruling as to
Zugg, Waldrop, and Rogers, but we reverse as to Payne.
B.    Individual Defendants - State Claims
      We now turn to Harris’s state law claims of negligence, gross negligence,
negligent infliction of emotional distress, intentional infliction of emotional
distress, malicious prosecution, assault and battery, false imprisonment and
arrest, defamation and slander, wrongful detention, and mistaken identity. The
district court granted summary judgment on the basis of the Mississippi Tort
Claims Act (“MTCA”) to Zugg, Waldrop, and Rogers, but not to Payne.


relevant precedent described above regarding due process and makes no attempt to explain or
distinguish it. Therefore, the Jones opinion is not persuasive in this instance.

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                        No. 06-60885 c/w No. 06-60967

      Pursuant to the MTCA,
      (1) A governmental entity and its employees acting within the
      course and scope of their employment or duties shall not be liable
      for any claim:
                                      ***
      (c) Arising 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. As used in this statute, “reckless disregard” has
been described by the Mississippi Supreme Court as “more than ordinary
negligence, but less than an intentional act.” City of Jackson v. Brister, 838 So.
2d 274, 280 (Miss. 2003); see also Titus v. Williams, 844 So. 2d 459, 468 (Miss.
2003) (stating that reckless disregard encompasses “willful and wanton” actions).
To meet this standard, the officer’s conduct must “evince[] not only some
appreciation of the unreasonable risk involved, but also a deliberate disregard
of that risk and the high probability of harm involved.” Maldonado v. Kelly, 768
So. 2d 906, 910-11 (Miss. 2000). The Mississippi Supreme Court has further
defined reckless disregard as a “conscious indifference to consequences,
amounting almost to a willingness that harm should follow.” Titus, 844 So. 2d
at 468 (internal quotation marks omitted). To avoid summary judgment, a
plaintiff must create a genuine issue of material fact that the officers “took
action that they knew would result or intended to result” in injury. Id.
      On appeal, the parties do not dispute the definition of reckless disregard,
but instead argue over whether the actions of the individual defendants
constitute reckless disregard. As described above, the conduct of Zugg, Waldrop,
Rogers, and Payne, as alleged by Harris, does not rise above the level of
negligence. Under Mississippi law, the reckless disregard standard is not


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satisfied by conduct that is merely negligent. See City of Jackson, 838 So. 2d at
280.   Consequently, the MTCA precludes a finding that the individual
defendants are liable for any state tort claims. Therefore, we affirm the grant
of summary judgment to Zugg, Waldrop, and Rogers, and we reverse the denial
of summary judgment to Payne.
C.     Harrison County
       Finally, Harris appeals the grant of summary judgment to Harrison
County. The district court dismissed Harris’s claims against Harrison County
because Harris had not set forth evidence of a policy or custom of Harrison
County that caused the deprivation of his rights. Harris does not contest that
he did not establish a policy or custom of Harrison County, but instead argues
that Harrison County is liable for Payne’s actions because he is a policymaker
for the county.
       Normally, a governmental entity is not liable under § 1983 unless the
evidence establishes that a policy or custom of the government caused the
constitutional violation, and a single act by a government employee is often
insufficient to establish the requisite policy or custom. See Gelin v. Hous. Auth.
of New Orleans, 456 F.3d 525, 527 (5th Cir. 2006); Piotrowski v. City of Houston,
237 F.3d 567, 581 (5th Cir. 2001). However, the Fifth Circuit’s cases are clear
that “[a] single decision may create municipal liability if that decision [is] made
by a final policymaker responsible for that activity.” Woodard v. Andrus, 419
F.3d 348, 352 (5th Cir. 2005) (internal quotation marks omitted); see also Jett v.
Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246 (5th Cir. 1993). Further, this court
has held that “[s]heriffs in Mississippi are final policymakers with respect to all
law enforcement decisions made within their counties.”          Brooks v. George
County, 84 F.3d 157, 165 (5th Cir. 1996). Therefore, Harrison County is liable
for Payne’s acts as Sheriff, because he is a final policymaker for Harrison
County, regardless of the existence of a policy or custom. Consequently, the

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district court did err in dismissing Harrison County while leaving Payne in the
case. However, as noted above, Harris’s allegations against Payne do not state
a claim for the violation of a constitutional right. Payne’s actions were, at most,
negligent, and therefore do not give rise to a constitutional claim. As a result,
there is no misconduct by Payne for which Harrison County can be held liable.
Therefore, we affirm the grant of summary judgment to Harrison County.
                              V. CONCLUSION
      In sum, it is clear that the Harrison County system failed Harris at every
point, and the fact that a clearly innocent individual can be held for four months
without a court appearance or verification of his identity gives us great concern.
However, the actions of the individual defendants sued by Harris and involved
in this appeal amounted to no more than negligence, which is insufficient to
create a constitutional claim or to fall outside the protection of the MTCA.
Therefore, we AFFIRM the district court’s decision granting summary judgment
to Zugg, Waldrop, Rogers, and Harrison County. We REVERSE the denial of
summary judgment as to Payne.
      AFFIRMED in part and REVERSED in part.




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                      No. 06-60885 c/w No. 06-60967

DENNIS, Circuit Judge, concurring in the judgment:
     I respectfully concur in the judgment. The majority reached

the right result in granting qualified immunity to all defendants.

I disagree with the majority in that the defendants did violate the

Fourth and Fourteenth Amendment rights in several respects as the

plaintiff alleges, but I agree with the majority in granting of

qualified immunity to all defendants, because those rights were not

clearly established at the time of the violations.




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