IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60661
JUAN PAYTON,
Plaintiff - Appellee,
v.
HINDS COUNTY, MISSISSIPPI; ET AL,
Defendants,
HINDS COUNTY, MISSISSIPPI; HINDS COUNTY SHERIFF’S
DEPARTMENT; HINDS COUNTY DETENTION CENTER; MALCOLM MCMILLIN;
TERRY PARKER, Sergeant; S. DANIELS; IVAN SMITH, Captain; ROSIE
WILSON; UNKNOWN MITCHELL, Deputy; TRICIA MAGEE; DOUGLAS JONES,
Captain; SHELBY BARLOW, Commander
Defendants - Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CV-782-LN
________________________________________________________________
September 23, 2002
Before DAVIS, JONES and SMITH, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
Hinds County, the Hinds County Sheriff’s Department, the
Hinds County Detention Center, Sheriff Malcolm McMillin, Douglas
Jones, Ivan Smith, Terry Parker, Shelby Barlow, Sibyl Daniels,
Tricia Magee-Crotwell, Rosie Wilson, and Teri Mitchell (“the
defendants”) appeal the denial of their motion to dismiss or
alternatively for summary judgment asserting qualified immunity
from Juan Payton’s 42 U.S.C. § 1983 and Mississippi state-law suit.
“[A] district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. §
1291 notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985); see Gonzales v. Dallas County,
Texas, 249 F.3d 406, 411 (5th Cir. 2001). Hinds County, the
Sheriff’s Department, and the Detention Center cannot raise a
qualified-immunity defense. See Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166
(1993). The same is true for Payton’s claims against McMillin and
the other Hinds County employees in their official capacities. See
Jacobs v. West Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392 (5th
Cir. 2000). Accordingly, we are without jurisdiction to review the
denial of the defendants’ summary judgment motion regarding these
claims. Id.
With regard to the individual defendants who appear in
their individual capacities, a defendant invoking a
qualified-immunity defense may not appeal a district court’s denial
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of summary judgment insofar as the order determined whether the
record sets forth a genuine issue of fact for trial. Johnson v.
Jones, 515 U.S. 304, 319-20 (1995). The defendants have not
conceded the facts regarding Payton’s claims of use of excessive
force in the light most favorable to Payton, as is required to
obtain appellate review of the district court’s denial of summary
judgment. See Gonzales, 249 F.3d at 411. Material fact issues
remain as to Payton’s claims against Smith and Daniels, in their
individual capacities; therefore, this court does not have
jurisdiction to review the district court’s denial of these
defendants’ claim of qualified immunity from Payton’s 42 U.S.C.
§ 1983 suit. See Johnson, 515 U.S. at 313.
Payton produced no facts against Nurse-deputies Mitchell
and Wilson, however, suggesting their involvement in any possible
constitutional violation other than the denial of medical care.
The only evidence in the record shows that these defendants each
saw Payton once on the first night he was in the detention center.
Each observed his swollen right hand, but he would not cooperate
with either of them in describing any problems he had. This
evidence is insufficient to create a fact issue concerning whether
either of these deputies was deliberately indifferent to Payton’s
serious medical needs.
The defendants argue that the district court erred in not
granting summary judgment to McMillin, Jones, Barlow, Magee-
Crotwell, and Parker because they cannot be found liable under 42
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U.S.C. § 1983 on a respondeat superior theory. Viewing the facts
in the light most favorable to Payton, there is a fact question
whether Parker, who was present at the Detention Center, had
personal involvement in the alleged constitutional violations. We
thus lack jurisdiction to review the district court’s denial of
qualified immunity with regard to him. With regard to Magee-
Crotwell, however, Payton offers no evidence at all of her
involvement in any constitutional violations; alleging her mere
presence as the booking officer is insufficient to create a genuine
issue of material fact.
With regard to McMillin, there is a fact question as to
whether he failed to train his officers properly precluding this
court from exercising jurisdiction over the district court’s denial
of summary judgment to him on the question of qualified immunity
from 42 U.S.C. § 1983 liability. See Thompson v. Upshur County,
Tex., 245 F.3d 447, 459 (5th Cir. 2001); Johnson, 515 U.S. at 313.
With regard to Jones and Barlow, Payton has offered no
evidence to dispute their averment that they were not present and
are not policy makers; Payton’s only theory of Jones’s and Barlow’s
liability is thus one of respondeat superior. Therefore, Jones and
Barlow are entitled to qualified immunity. Coleman v. Houston
Indep. Sch. Dist., 113 F.3d 528, 534-35 (5th Cir. 1997); Cantu v.
Rocha, 77 F.3d 795, 807 (5th Cir. 1996).
The defendants also appeal the denial of their motion for
summary judgment with regard to Payton’s state law claims, arguing
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that they are immune under Mississippi law. Orders denying
qualified immunity under Mississippi law are immediately
appealable. Sorey v. Kellett, 849 F.2d 960, 962-63 (5th Cir.
1988). Under MISS. CODE ANN. § 11-46-9(1)(m), the defendants are
immune because Payton was an inmate of a detention center when his
claims arose and he has alleged no facts suggesting that the
defendants were not acting within the course and scope of their
employment. See Jones v. City of Jackson, 203 F.3d 875, 881 (5th
Cir. 2000).
In sum, we lack jurisdiction over the district court’s
order denying summary judgment as to Hinds County, the Sheriff’s
Department, the Detention Center, the claims against Sheriff
McMillin and the other Hinds County employees in their official
capacities, and the claims against Sheriff McMillin, Smith, Daniels
and Parker, in their individual capacities. However, we reverse
the district court’s denial of summary judgment as to Wilson,
Mitchell, Magee-Crotwell, Jones and Barlow and as to Payton’s
state-law claims. Therefore, the summary-judgment denial is
DISMISSED IN PART, REVERSED IN PART, and REMANDED for further
proceedings consistent with this opinion.
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