                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                  No. 98-60013



JOSEPH JONES,

                                                 Plaintiff-Appellee,

versus

CITY OF JACKSON ET AL.,
                                                 Defendants,

MALCOLM McMILLIN and LES TANNEHILL,
                                                 Defendants-Appellants.



              Appeal from the United States District Court
                for the Southern District of Mississippi

                            February 14, 2000

Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     Malcolm McMillin and Les Tannehill appeal the district court’s

denial of their motion for summary judgment, in which they claimed

qualified, absolute and sovereign immunity from Joseph Jones’s

causes   of    action   brought    pursuant   to   42   U.S.C.   §   1983   and

Mississippi state law.       We affirm in part, reverse in part and

remand the case to the district court for further proceedings.

                    I. FACTS AND PROCEDURAL HISTORY

     For purposes of this appeal we assume the truth of the

following facts.




                                       1
      In October 1991, Jones entered guilty pleas to three separate

burglary counts.             In the first count, Cause No. 4255, Jones was

sentenced       to    two     years   of    incarceration      and   five   years   of

probation.       The other counts, Cause Nos. 4256 and 4257, were left

as open pleas, the sentences to be determined at a later time.                       On

February 24, 1993, after Jones had completed his two years in

prison and been released to serve the probated portion of his

initial sentence, Judge Breland Hilburn, Circuit Judge of Hinds

County, Mississippi, issued a bench warrant for Jones’s arrest for

failure to appear for sentencing in Cause Nos. 4256 and 4257.                       The

basis     for    the    issuance      of     the   bench   warrant    is    variously

characterized as a “clerical error” and “probation violation” by

the parties on appeal.

      On Sunday, June 5, 1994, a City of Jackson police officer

stopped Jones          for    a   routine    traffic   violation.       The    officer

arrested Jones for an outstanding warrant on a simple assault

charge and for operating a motor vehicle without a license and took

him to the Jackson City Jail.                The next day, June 6, 1994, Hinds

County1 Sheriff’s Deputy Les Tannehill sent a facsimile copy of a

bench warrant to the Jackson City Jail requesting that a detainer

be placed in Jones’s file based on the bench warrant issued earlier

by Judge Hilburn.            Malcolm McMillin, Sheriff of Hinds County, had

no   personal        involvement      with    Jones    other   than   his     official

responsibilities to devise and enforce policy for Hinds County. On

Tuesday, June 7, 1994, Jones attended a hearing before the City of

      1
        The city of Jackson is in Hinds County, Mississippi.

                                              2
Jackson Municipal Court wherein the charges of simple assault and

driving without a license brought by the City of Jackson were

dismissed when the City of Jackson determined that it had arrested

the wrong person.       However, Jones remained incarcerated in the

Jackson City Jail on the basis of the detainer lodged by Tannehill.

The City of Jackson continued to incarcerate Jones until June 20,

1994, when he was transferred from the Jackson City Jail to the

Madison County Jail.

     At the time, the City of Jackson and Hinds County Jail systems

were under federal court order to relieve overcrowding.         Jackson

and Hinds County entered into an Interlocal Agreement with Madison

County, Mississippi to house Jackson’s extra prisoners for a fee.

The agreement allocated a set number of prisoner beds to Jackson

and Jackson agreed to “sublet” their unused beds in Madison County

Jail to house Hinds County’s extra prisoners.       The cost of Jones’s

incarceration was billed daily to Hinds County, who reimbursed the

City of Jackson for their payments to Madison County.

     Jones remained in the Madison County Jail as a result of the

Hinds County detainer, without hearing or court appearance, until

March 6, 1995.   After nine months, Jones was brought into state

district court in Hinds County, Mississippi and Judge Hilburn

entered an order dismissing all affidavits for probation violation,

terminating   Jones’s    probation,    dismissing   and   vacating   all

detainers and charges placed on Jones by Hinds County or the

Jackson Police Department and ordered the Hinds County Sheriff’s

Office to “immediately RELEASE the Defendant from custody.”


                                   3
     On June 7, 1996, Jones filed a complaint in Mississippi state

court against the City of Jackson, Hinds County and numerous

individual defendants, alleging that the defendants violated his

constitutional rights and various state laws by detaining him in

1994-95.     Jones dismissed Hinds County without prejudice and the

remaining defendants removed the case to federal court.                        Tannehill

and McMillin filed a motion for summary judgment on the basis of

absolute, qualified and sovereign immunity.                       The district court

denied summary judgment in a one-page order.

                                  II. DISCUSSION

A. JURISDICTION AND STANDARD OF REVIEW

     Jones argues that we do not have jurisdiction over this

appeal.      Typically, denials of qualified immunity, although not

final orders, are immediately appealable under the collateral order

doctrine set forth in Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949).        This doctrine allows an immediate appeal from

orders denying summary judgments based on qualified immunity as a

matter of law.       See Mitchell v. Forsythe, 472 U.S. 511, 530 (1985).

“If disputed factual issues material to summary judgment are

present, the district court’s denial of summary judgment on the

basis   of    immunity       is   not    appealable.”           Lampkin   v.    City    of

Nacogdoches,     7    F.3d    430,      431       (5th   Cir.    1993)(quotation       and

citations omitted).           Jones maintains that there is no way to

determine whether facts or law formed the basis for the district

court’s denial of summary judgment and that this court is therefore

without jurisdiction to review it on interlocutory appeal.


                                              4
     When the district court fails to make findings of fact and

conclusions     of    law,     the    appellate       court   will    “undertake       a

cumbersome    review    of     the    record    to    determine    what     facts    the

district court, in the light most favorable to the non-moving

party, likely assumed.”          Behren v. Pelletier, 516 U.S. 299, 313

(1996).    Having performed the requisite record review, we conclude

that this appeal presents questions of law, not fact,2 and is

therefore immediately appealable.                See Mitchell v. Forsyth, 472

U.S. 511, 530 (1985).

     This court reviews the denial of a motion for summary judgment

de novo using the same criteria applied by the district court in

the first instance.      Reese v. Anderson, 926 F.2d 494, 498 (5th Cir.

1991).

B. IN CUSTODY

     No one disputes that Jones was imprisoned for nine months.

However,    Appellants       contend    that     Hinds    County     did    not     have

“custody” of Jones.            Who was responsible for Jones’s illegal

detention    and     whether     or    not     that    detention     gave    rise     to

constitutional protections are mixed questions of fact and law that

go to the gravamen of Jones’s suit.

     Under Mississippi law, if a Hinds County prisoner is housed in

a different county due to over-crowding, Hinds County remains

responsible for his custody.           See Lee v. State of Mississippi, 437

     2
      The record reveals that material issues                 of fact remain as
well, particularly concerning the question of                 which individual or
individuals caused the alleged constitutional                 violations. To the
extent the parties’ arguments are bottomed on                 factual question of
causation, we have no jurisdiction to resolve                 their disputes.

                                          5
So.2d 1208, 1209 (Miss. 1983) (interpreting § 47-3-1 MISS. CODE ANN.

(1972).      Further, a Mississippi prisoner awaiting trial on a

criminal charge in one county is entitled to credit for time served

in another county so long as a detainer is lodged in the prisoner’s

file by the first county. See id.                   In addition, we find it

significant that the Mississippi Circuit Court order directed Hinds

County to release Jones, which order successfully gained his

freedom.

      This court has similarly held that a prisoner incarcerated in

one   jurisdiction       subject    to    a   detainer        from    a   different

jurisdiction      is   “in   custody”    of   the    second    jurisdiction        for

purposes     of    federal     habeas    corpus      statute,        28   U.S.C.     §

2241(c)(3)(1994).        See Dickerson v. State of Louisiana, 816 F.2d

220, 224-25 (5th Cir. 1987).            Dickerson relied on Braden v. 30th

Judicial Court of Kentucky, 410 U.S. 484 (1973), in which the

Supreme Court concluded that a state placing a detainer on the

petitioner    who      was   incarcerated     in    another    jurisdiction        had

“custody” of him for habeas corpus purposes. See id., 410 U.S. at

489 n.4.

      Based on the unanimous jurisprudence of Mississippi, the Fifth

Circuit and the Supreme Court, we conclude that Jones has alleged

facts sufficient to establish that Hinds County had custody of

Jones.     McMillin and Tannehill, named in their individual and

official capacities, allegedly caused Hinds County’s exercise of

illegal custody over Jones by affirmative acts (e.g., sending the

detainer to Jackson City Jail) and omissions (e.g., failing to take


                                         6
Jones before the Circuit Court of Hinds County as the Bench Warrant

commanded).

C. QUALIFIED IMMUNITY

     The first inquiry in examining a defense of qualified immunity

asserted in a motion for summary judgment is whether the plaintiff

has alleged “the violation of a clearly established constitutional

right.”   Siegert v. Gilley, 500 U.S. 226, 231 (1991).   The second

step is to “decide whether the defendant’s conduct was objectively

reasonable” in light of the legal rules clearly established at the

time of the incident.   Spann v. Rainey, 987 F.2d 1110, 1114 (5th

Cir. 1993).

     1. Clearly established constitutional rights

     Jones alleged that his Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendment rights were violated when he was held pursuant

to a detainer issued by the Hinds County Sheriff’s Office and

placed in his file by defendant Tannehill and was not brought

before a judge or magistrate for over nine months.

     a. Fourth Amendment

     Jones’s Fourth Amendment allegations fail because he admitted

that a facially valid bench warrant existed in Hinds County on the

date the detainer was sent to Jackson City Jail.      The original

seizure was therefore pursuant to a valid court order.      “Fourth

Amendment claims are appropriate [only] when the complaint contests

the method or basis of the arrest and seizure of the person.”

Brooks v. George County, Miss., 84 F.3d 157, 166 (5th Cir. 1996).

The protections offered by the Fourth Amendment do not apply if the


                                 7
plaintiff challenges only continued incarceration.                        Id.      We must

therefore reverse and render summary judgment for Tannehill and

McMillin on Jones’s Fourth Amendment Claims.

      b. Fifth Amendment

      Jones’s Fifth Amendment claim of a denial of his right to due

process must also fail.                The Fifth Amendment applies only to

violations of constitutional rights by the United States or a

federal actor.            See Morin v. Caire, 77 F.3d 116, 120 (5th Cir.

1996).       Jones has not alleged that McMillin or Tannehill were

acting under authority of the federal government.                        Tannehill and

McMillin      are      entitled   to    summary     judgment      on    Jones’s      Fifth

Amendment Claims.

      c. Sixth Amendment

      Jones raised two alleged violations of the Sixth Amendment:

denial of his right to counsel and denial of his right to be

informed     of     the    charges     against    him.      The   right       to   counsel

guaranteed        by    the    Sixth    Amendment        attaches      when     adversary

proceedings are commenced against the defendant.                    United States v.

Gouveia, 467 U.S. 180, 187-188 (1984).                   A defendant’s right to be

informed of the nature and cause of an accusation brought against

him   does    not      exist   until     the     Government    is      committed     to   a

prosecution.           Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir.

1987).     The bench warrant underlying the detainer was based on

Jones’s alleged failure to appear for sentencing on two burglary

charges. Certainly the Government was “committed to a prosecution”

of these two charges and the Sixth Amendment rights to be informed


                                            8
of the charges and to be represented by counsel had attached.        We

will therefore affirm the denial of qualified immunity on Jones’s

Sixth Amendment claims.

     d. Eighth Amendment

     Jones alleged that his incarceration constituted cruel and

unusual punishment in violation of the Eighth Amendment.          “‘The

primary purpose of [the Cruel and Unusual Punishments] clause has

always been considered . . . to be directed at the method or kind

of punishment imposed for the violation of criminal statutes . . .

.’” Ingraham v. Wright, 430 U.S. 651, 667 (1977)(quoting Powell v.

Texas, 392 U.S. 514, 531-532 (1968)). Jones, complaining about the

fact of his incarceration rather than its conditions, fails to

state a cause of action under the Eighth Amendment.       We therefore

reverse the denial of qualified immunity from Jones’s Eighth

Amendment claims.

     e. Fourteenth Amendment

     Jones has also alleged violations of his Fourteenth Amendment

due process rights, which are protected from unconstitutional

actions by state actors.     See DeShaney v. Winnebago Co. Dep’t of

Soc. Servs.,   489   U.S.   189,   196   (1989).   Prohibition   against

improper use of the “formal restraints imposed by the criminal

process” lies at the heart of the liberty interests protected by

the Fourteenth Amendment due process clause.       See Board of Regents

v. Roth, 408 U.S. 564, 575 (1972).          The Fourteenth Amendment’s

protection of Jones’s liberty interest was clearly established in

1994-95, and Jones’s alleged nine month detention without proper


                                    9
due process protections was not objectively reasonable in light of

the clearly established legal rules.           We must therefore affirm the

denial of qualified immunity as to Jones’s Fourteenth Amendment

claims.

STATE LAW CLAIMS

     McMillin and Tannehill also appeal the denial of summary

judgment for state-law claims against them. Under Mississippi law,

an exemption for the waiver for sovereign immunity exists if the

defendants are government officials acting in the course and scope

of their employment and the complainant was incarcerated at the

time of the alleged acts.         MISS. CODE ANN. § 11-46-9(1)(m) (1972).

Jones was incarcerated at the time of the events at issue, and he

has not alleged any facts that would tend to show that McMillin and

Tannehill   were   not   acting    in    the   course   and   scope   of   their

employment.   Therefore, McMillin and Tannehill should have been

granted summary judgment based on sovereign immunity for state-law

claims filed against them by Jones.

                                  CONCLUSION

     We AFFIRM the denial of qualified immunity as to Jones’s Sixth

and Fourteenth Amendment claims, and REMAND this case to the

district court for further proceedings.            We REVERSE the district

court and grant Tannehill and McMillin qualified immunity on

Jones’s Fourth, Fifth and Eighth Amendment claims.                Finally, we

REVERSE the denial of summary judgment for defendants on Jones’s

state law claim.

     AFFIRMED in part, REVERSED in part, and REMANDED.


                                        10
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:



     I agree with those portions of the majority opinion which find

that Hinds County Sheriff Malcolm McMillan and Deputy Sheriff Les

Tannehill are entitled to qualified immunity on most of Joseph

Jones’s federal law claims against them.                            I also agree that

McMillan and Tannehill are entitled to sovereign immunity for

Jones’s state law claims. Accordingly, I concur with the opinion’s

partial reversal of the lower court’s denial of summary judgment.

However,    the     opinion      affirms      the    district       court’s     denial    of

qualified    immunity       on     Jones’s     Sixth      and   Fourteenth      Amendment

claims.    I dissent from this portion of the opinion because Jones

has not shown that either McMillan or Tannehill violated his

clearly established rights.

     Public officials acting within the scope of their official

duties     are    shielded       from    liability         by      qualified    immunity.

See Kipps v. Caillier, — F.3d —, 1999 WL 1115448, at *2 (5th Cir.

Dec. 6, 1999).             Qualified immunity applies unless:                     (1) the

plaintiff        alleges     the    violation        of     a   clearly        established

constitutional       right,        and   (2)       the    defendant’s      conduct       was

objectively unreasonable. See Palmer v. Johnson, 193 F.3d 346, 351

(5th Cir. 1999).       Additionally, the record must at least “give[]

rise to a genuine issue of material fact as to whether the

defendant    actually       engaged      in    the       conduct    that   violated      the

clearly-established right.” Kipps, 1999 WL 1115448, at *2 (quoting


                                              11
Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999)).                                                 Once the

defendant invokes qualified immunity by pleading good faith and

shows that he was acting within the scope of his discretionary

duty, the burden shifts to the plaintiff to show that the defendant

violated clearly established law. See Salas v. Carpenter, 980 F.2d

299, 306 (5th Cir. 1992).

         The evidence before the district court on summary judgment

consisted of affidavits from McMillan and Tannehill, which they

submitted in support of their motion.3                                McMillan’s affidavit states

that he had no knowledge of Jones’s case until Jones served him

with the complaint.                    Tannehill’s affidavit states that he sent a

written detainer request to the Jackson City Jail after noticing

that Judge Hilburn had an outstanding bench warrant for Jones, and

that he then informed Judge Hilburn’s court administrator about the

detainer.4

         The evidence does not show that an act of either McMillan or

Tannehill           harmed        Jones;         he     has      not      identified            a    policy         of

McMillan’s which harmed him5 and he has not shown that Tannehill’s


   3
          Jones apparently responded to their motion, but he did not file his response and thus it is not before us.
Cf.United States v. Coveney, 995 F.2d 578, 587-88 (5th Cir. 1993) (discussing the appellee’s responsibility to ensure
that the record is complete).
   4
         On appeal, Jones disputes whether Tannehill actually notified Judge Hilburn’s administrator that he had
placed the detainer. He also alleges that “[t]his type of act occurred on numerous occasions prior to Joseph Jones [sic]
dilemma” and that “[a]ll of the aforementioned actors were aware of the prior occurrences, remedial measures were
not taken, or if they were taken, they were wholly inadequate.” Because he does not support these allegations with
evidence, they do not raise genuine issues of material fact. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (stating that the nonmovant’s burden of responding to the movant’s showing that there are no genuine issues
of material fact “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”) (citations and quotations omitted).
  5
        McMillan’s only “policy” which Jones specifically identifies is the space-sharing agreement with Madison
County under which Jones was transferred to the Madison County Jail. Jones fails to show that this policy was facially
improper or that it was applied to him improperly.

                                                          12
placement of the detainer on him was improper.                Instead, he

attempts to show that, by virtue of their positions and because

Tannehill placed the detainer on him, they owed him duties which

they did not perform, thereby violating his rights.

     Jones has not identified a legal duty McMillan owed him which

he did not carry out.      He argues that McMillan was deliberately

indifferent to his rights, see, e.g., Jones v. City of Chicago, 856

F.2d 985, 992-93 (7th Cir. 1988) (“[S]upervisors who are merely

negligent in failing to detect and prevent subordinates' misconduct

are not liable . . . . The supervisors must know about the conduct

and facilitate it, approve it, condone it, or turn a blind eye for

fear of what they might see.”), but he makes no showing that

McMillan   knew   about   his   situation,   knew   similar   events   had

occurred, or failed to take reasonable steps to prevent Jones’s

lengthy detention from occurring.

     Jones also suggests that McMillan violated duties he owed

Jones by virtue of the “special relationship” between the state and

a prisoner.   See generally DeShaney v. Winnebago County Dept. of

Social Services, 489 U.S. 189, 199-200, 109 S. Ct. 998, 1005, L.

Ed. 2d , __ (1989) (“[W]hen the State takes a person into its

custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility

for his safety and general well-being.”).       He fails to show, as a

legal or factual matter, that this “special relationship” existed

here.   Significantly, he does not rely on Mississippi law vesting

sheriffs with certain responsibilities over county jails to argue


                                    13
that McMillan was responsible for his custody, see Miss. Code Ann.

§ 47-1-49 (“The sheriff shall have charge of the . . . jail of his

county . . . and of the prisoners in said jail.”), presumably

because Jones was in a city rather than a county jail, see id. §

47-1-49 (“In the case of a jail owned jointly by a county and

municipality, . . . the governing authorities of the county and

municipality are hereby vested with full and complete authority,

jurisdiction and control over such jointly owned jail facility and

the governing authority of the municipality may appoint a jailer

who shall be responsible for all municipal prisoners lodged in said

jail in the same manner in which the sheriff is responsible for

state prisoners . . . .”).          The state law he does rely on, Miss.

Code Ann. § 47-3-1, applies when a prisoner is placed in a jail

outside the arresting jurisdiction. It directs “the sheriff of the

county to which the prisoner is so removed . . . to have the body

of the accused, without further order, before the proper court of

the proper county, at its next term thereafter, on the first day of

the term.”      Id. (emphasis added).       Because McMillan was not the

sheriff in the county to which Jones was removed, § 47-3-1 imposed

no duty on him.        Similarly, § 99-3-17, which directs “[e]very

person making an arrest [to] take the offender before the proper

officer without unnecessary delay for examination of his case,” id.

§ 99-3-17, does not apply because McMillan and Tannehill did not

arrest Jones.     Cf. United States v. Hausman, 894 F.2d 686, 688-89

(5th   Cir.   1990)   (concluding    that   a   federal   detainer   was   not

equivalent to an arrest for purposes of the Speedy Trial Act).


                                      14
        Jones’s allegations against Tannehill also fail.                                           Tannehill

had no greater duty as Deputy Sheriff than McMillan had as Sheriff,

and thus his position alone does not render him responsible for

Jones.         Additionally, Jones has not shown that Tannehill had a

general legal duty to follow up




on the detainer he lodged, and Jones does not allege facts which

might establish a specific duty to do so here.6

        Qualified immunity is a shield from civil liability for “all

but the plainly incompetent or those who knowingly violate the

law.”       Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096,

89 L. Ed. 2d 271, __ (1986).                         Accordingly, we “resolv[e] immunity

questions at the earliest possible stage in litigation,” Hunter v.

Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589,

__ (1991) to ensure that the immunity properly shields those it is

meant to protect.                  Because the majority opinion undermines this

protection by allowing claims against McMillan and Tannehill to

proceed even though there is no evidence in the record which

suggests that they violated Jones’s clearly established rights, I

dissent from this portion of the majority’s opinion.




   6
         For example, Jones does not allege that Tannehill was notified that the other charges against Jones were
dropped, and that Jones was therefore only being held because of Tannehill’s detainer. Nor does he allege that
Tannehill improperly documented the detainer such that Jones’s case was “lost in the shuffle.” To the contrary,
Tannehill’s affidavit states that he promptly notified the court administrator upon placing the detainer. (As noted,
Jones disputes this, but he does so without citing evidence on which we could rely.)

                                                        15
