Case: 10-60941 Document: 00511825649 Page: 1 Date Filed: 04/18/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 18, 2012
No. 10-60941
Lyle W. Cayce
Clerk
CLIFTON H. JONES; JERRY DWAYNE NANCE,
Plaintiffs – Appellants
v.
LOWNDES COUNTY, MISSISSIPPI; LOWNDES COUNTY, MISSISSIPPI
SHERIFF’S DEPARTMENT; IVAN BRYAN, in his Individual and Official
Capacity; C.B. (Butch) HOWARD, Lowndes County, Mississippi Sheriff, in his
Individual and Official Capacity,
Defendants – Appellees
Appeal from the United States District Court
for the Northern District of Mississippi (Eastern Division)
Before JOLLY, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Clifton H. Jones and Jerry Dwayne Nance filed suit under 42 U.S.C. §
1983 in the United States District Court for the Northern District of Mississippi
against Lowndes County, Lowndes County Sheriff’s Department, Sheriff C.B.
“Butch” Howard in his individual and official capacity, and Deputy Sheriff Ivan
Bryan in his individual and official capacity. They complained they were
detained for more than 48 hours without a determination of probable cause or
an initial appearance, in violation of the Fourth, Fifth, Eighth, and Fourteenth
Case: 10-60941 Document: 00511825649 Page: 2 Date Filed: 04/18/2012
No. 10-60941
Amendments. Following discovery, the district court granted defendants’ motion
for summary judgment. We affirm.
I.
On Saturday April 5, 2008 the Lowndes County Sheriff’s Department
received a 911 call reporting a suspicious person purchasing pseudoephedrine
pills, a precursor to the manufacture of methamphetamine. Defendant-appellee
Ivan Bryan, a deputy sheriff, responded to the call and arrested plaintiffs-
appellants Clifton Jones and Jerry Dwayne Nance at 5:33 P.M. With no Justice
Court judges on duty on Saturday evening or Sunday, a determination of
probable cause by a neutral magistrate was not sought over the remainder of the
weekend. On Monday morning Bryan was off-duty and working at a second job
for a different employer. He returned to the police station after his shift ended,
and attempted to schedule an appearance before a judge around 2:30 P.M. The
chief judge had left for the day, however, and Bryan was told that no other judge
was available.
The next morning Bryan appeared before a justice court judge who
determined the arrests were justified by probable cause. The judge did not allow
plaintiffs to make their initial appearance on the same day as the determination
of probable cause, so Jones and Nance made their initial appearance on
Wednesday and were released on bail. A grand jury subsequently indicted them
for possession of precursors to the manufacture of methamphetamine.
II.
We review a grant of summary judgment de novo.1 Summary judgment
is appropriate only if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.2 If that party shows that the
1
LeMaire v. Louisiana Dept. of Transp. and Dev., 480 F.3d 383, 386 (5th Cir. 2007).
2
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing FED.
R. CIV. P. 56(c)).
2
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non-moving party presented insufficient evidence in support of its
allegations,“the non-movant must come forward with specific facts showing a
genuine factual issue for trial.”3 Such facts must consist of more than
“[c]onclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.”4 Finally, we “may
affirm a summary judgment on any ground supported by the record, even if it is
different from that relied on by the district court.”5
III.
Jones and Nance appeal rejection of their Fourth Amendment claims, but
do not challenge the district court’s grant of summary judgment on their Fifth
and Eighth Amendment claims.
The Supreme Court reaffirmed in Gerstein v. Pugh that a warrantless
arrest supported by probable cause is constitutionally permissible.6 To continue
to detain the suspect, the state must obtain “a fair and reliable determination
of probable cause” by a neutral magistrate “promptly after arrest.”7 The Court
elaborated on this in County of Riverside v. McLaughlin: “a jurisdiction that
provides judicial determinations of probable cause within 48 hours of arrest will,
as a general matter, comply with the promptness requirement of Gerstein.”8
3
TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002) (internal
quotation marks omitted) (citing FED. R. CIV. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
4
Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
5
Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001).
6
420 U.S. 103, 113 (1975).
7
Id. at 124–25.
8
500 U.S. 44, 56 (1991); see also Powell v. Nevada, 511 U.S. 79, 80 (1994) (“[P]rompt
generally means within 48 hours of the warrantless arrest; absent extraordinary
circumstances, a longer delay violates the Fourth Amendment.”) (internal quotation marks
omitted).
3
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The overarching constraint upon the state imposed by the Fourth
Amendment is its demand of reasonableness. Applying this fundamental
precept the Court provided the 48-hour mark, but cautioned that “we hesitate
to announce that the Constitution compels a specific time limit.”9 It observed
that a determination of probable cause within 48 hours could still violate an
arrestee’s Fourth Amendment rights if delayed unreasonably, such as “for the
purpose of gathering additional evidence to justify the arrest, a delay motivated
by ill will against the arrested individual, or delay for delay’s sake.”10 This
standard, however, accepts that police must “cope with the everyday problems
of processing suspects through an overly burdened criminal justice system,”
including “delays in transporting arrested persons,” “handling late-night
bookings where no magistrate is readily available, obtaining the presence of an
arresting officer who may be busy processing other suspects or securing the
premises of the arrest, and other practical realities.”11 That said, 48 hours is a
significant marker. If the determination of probable cause is delayed by more
than 48 hours the burden shifts to the government, and its showing of
reasonableness will, virtually by definition, demand “a bona fide emergency or
other extraordinary circumstance,” which does not include “intervening
weekends” or efforts to “consolidate [additional] pre-trial proceedings.”12 Thus,
a plaintiff challenging a delay of less than 48 hours has the burden of proving it
was unreasonable. Beyond the 48-hour mark, the burden falls to the defense to
show extraordinary circumstances.13
9
McLaughlin, 500 U.S. at 56.
10
Id.
11
Id. at 55, 57.
12
Id. at 57.
13
Id.
4
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It is undisputed that more than 48 hours lapsed before Jones and Nance
received a determination of probable cause. They contend the defendants did not
show this delay was justified by extraordinary circumstances and were not
entitled to summary judgment. We do not reach the merits of this argument
because Jones and Nance failed to show that any defendant is liable for the
alleged deprivation of their Fourth Amendment rights.14
A Section 1983 claimant must “establish that the defendant was either
personally involved in the deprivation or that his wrongful actions were causally
connected to the deprivation.”15 If the defendant is a municipality or other body
of local government, the alleged deprivation must be connected to “a
governmental custom,” “policy statement, ordinance, regulation, or decision
officially adopted and promulgated by the body’s officers.”16 Although
municipalities are not vicariously liable for violations committed by their
employees, they are liable whenever “their official policies cause their employees
to violate another person’s constitutional rights,”17 and for actions taken by an
official with “final policymaking authority” in that area.18 “A supervisor is not
personally liable for his subordinate’s actions in which he had no involvement.”19
14
See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (“The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the case may
be disposed of.”)
15
James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008).
16
Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690–91 (1978) (internal
quotation marks omitted).
17
City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988); see also Beattie v. Madison
Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
18
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Whether a person has such
authority is determined by state law. Id.
19
James, 535 F.3d at 373.
5
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Jones and Nance identify only one policy they claim caused the deprivation
of their Fourth Amendment rights. Sheriff Howard explained in an
interrogatory response that “the general policy is a target to take the detainee
to a Judge within 48 hours but no later than 72 hours and as soon as reasonably
possible and without any unnecessary delay.” This policy violates McLaughlin,
Jones and Nance maintain, by allowing determinations of probable cause or
initial appearances 48 hours after arrest. Plaintiffs ask too much of that
decision. McLaughlin provides the 48-hour timeline as a useful benchmark, but
does not hold that determinations of probable cause made after the lapse of 48
hours are always unreasonable. The policy in question, in accordance with
McLaughlin, makes unreasonable delay the standard that officers should
apply,20 and provides the 48-hour timeline as a benchmark.21 That the policy
recognizes that determinations of probable cause may sometimes occur after the
48-hour benchmark does not, in of itself, violate McLaughlin, and has not been
shown in this case to have been a moving force behind the delay. It therefore
cannot serve as the basis for plaintiffs’ Section 1983 claim.
No other policy or custom to which the alleged deprivation could be traced
is identified by plaintiffs. Instead, Jones and Nance agree with defendants that
the delay was due to the lack of available judges on Saturday evening, Sunday,
20
See Swinney v. State, 829 So.2d 1225, 1231–32 (Miss. 2002) (holding that
“unnecessary delay,” as used in a state statute, was interchangeable with the “unreasonable
delay” standard of McLaughlin).
21
Appellants argue that McLaughlin requires a jurisdiction to schedule probable cause
determinations and initial appearances “in no event later than 48 hours after arrest.” See 500
U.S. at 57. This statement is taken out of context. McLaughlin used that language when
discussing “[a] jurisdiction that chooses to offer combined proceedings,” emphasizing that
“[t]he fact that in a particular case it may take longer than 48 hours to consolidate pretrial
proceedings does not qualify as an extraordinary circumstance.” Id. It does not appear from
the record, and neither party has alleged, that the delay in this case was due to the
jurisdiction’s policy of combining pretrial proceedings.
6
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and Monday afternoon.22 Defendants have repeatedly contended that the
county, sheriff’s department, sheriff, and deputy sheriff have no authority to set
the judges’ schedule. They therefore cannot be held liable either for the judges’
decision to be unavailable that weekend or that Monday afternoon, or for a
judge’s decision to refuse to conduct plaintiffs’ determination of probable cause
and initial appearance on the same day. Plaintiffs do not contest this. They do
not allege, much less present evidence, that these judges were policymakers
whose every decision is policy for which the county is liable, or that the county
could and should have required the judges to be available at certain times.
Because the judges’ actions caused the complained-of delay and plaintiffs failed
to show that defendants were liable for those judges’ actions, summary judgment
was appropriate.23
The Fourth Amendment allegations against Deputy Sheriff Ivan Bryan are
also unavailing. As the arresting officer, Bryan was responsible for ensuring the
arrestees were promptly brought before a magistrate.24 He maintains that even
if his actions are ultimately determined to have created unreasonable delay, he
is entitled to qualified immunity. We agree.
22
Sheriff Howard, Bryan’s superior, is not alleged to have been involved in, or even
aware of, plaintiffs’ arrests or detentions before this lawsuit was filed. Plaintiffs have
therefore failed to establish he could be held liable in his individual capacity. See James, 535
F.3d at 373.
23
Plaintiffs argue that county employees did not try hard enough to locate a judge on
Sunday and Monday afternoon. They give us no reason to believe this was the case, and an
unsubstantiated assertion cannot defeat summary judgment. See TIG Ins. Co., 276 F.3d at
759. They also claim the county should allow an officer other than the arresting officer to
obtain a determination of probable cause. There is no evidence the county does not allow other
officers to obtain determinations of probable cause when necessary. Deputy Sheriff Bryan’s
failure to arrange for this is analyzed in our discussion of qualified immunity below.
24
See Miss. Code Ann. § 99-3-17 (“Every person making an arrest shall take the
offender before the proper officer without unnecessary delay for examination of his case.”)
7
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“Qualified immunity protects officers from suit unless their conduct
violates a clearly established constitutional right.”25 Once a defendant raises the
defense of qualified immunity it becomes the plaintiffs’ burden to show that it
does not apply.26 “The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”27
It is argued that Bryan should have made more effort to contact a judge
over the weekend and on Monday afternoon. The record indicates that no judge
made himself or herself available for determinations of probable cause at those
times. That Bryan could have done more and forced or persuaded a judge to
conduct the determination is, at best, speculative. Plaintiffs also contend Bryan
should have made alternative arrangements to obtain a probable cause
determination on Monday morning. It would not have been clear to a reasonable
officer that he was required to do so, however. Bryan went to the police station
immediately after his shift ended at his other place of employment in order to
schedule an appearance before a judge, several hours within the 48-hour
window. Bryan’s testimony as the arresting officer was necessary to the
determination of probable cause, and he had no way of knowing the county
judges would choose to close their courtrooms early that Monday afternoon or
that their doing so was unlawful. Under these circumstances, we cannot
conclude a reasonable officer would have known he was required to make
alternative arrangements such as skipping his Monday morning shift or
preparing a written report to enable another officer to attend the probable cause
25
Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).
26
Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005).
27
Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (internal quotation marks
and citation omitted).
8
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determination in his place. Bryan was therefore entitled to summary
judgment.28
IV.
Jones and Nance also challenge the rejection of their Fourteenth
Amendment claims.
A pre-trial detainee may bring a Fourteenth Amendment due process
claim in a Section 1983 action either “as an attack on a condition of confinement
or as an episodic act or omission.”29 Jones and Nance base their claim on Bell v.
Wolfish, a conditions of confinement case,30 arguing that the delay in obtaining
a probable cause determination and initial appearance violated their due process
rights. Even if we assume the delay constituted a condition of confinement and
a violation of due process, plaintiffs’ claim must fail. As with their Fourth
Amendment claims, they have made no showing that the alleged deprivation
was caused by a policy, regulation, custom or policymaker of the county or
sheriff’s department, or by Sheriff Howard’s actions. Nor have Jones and Nance
overcome Bryan’s defense of qualified immunity, as we have explained.
Jones and Nance also contend they suffered unconstitutional conditions
of confinement because they were not allowed to make any phone calls to obtain
legal representation. As the district court noted, however, the record indicates
they had several opportunities to do so. Because plaintiffs failed to show a
genuine issue of material fact on this issue, summary judgment was proper.
28
Although the district court did not decide the claims against Bryan on the basis of
qualified immunity, this argument was briefed by the parties below and on appeal.
29
Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009) (citing Hare v. City of
Corinth, Miss., 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc)) (internal quotation marks
omitted).
30
441 U.S. 520, 536 (1979).
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Plaintiffs’ final argument is that their Fourteenth Amendment rights were
violated by defendants’ failure to follow two state statutes.
“[A]n alleged violation of a state statute does not give rise to a
corresponding § 1983 violation, unless the right encompassed in the state statute
is guaranteed under the United States Constitution.”31 Jones and Nance identify
two Mississippi statutes they allege contain such a right: Miss. Code Ann. § 99-3-
17 and Miss. Unif. Rule of Cir. and Cnty. Court Prac. 6.03.32 These statutes
provide, respectively, that “[e]very person making an arrest shall take the
offender before the proper officer without unnecessary delay for examination of
his case,” and “[e]very 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.”
Even if we assume that these statutes created a protected liberty interest
and that they were violated, plaintiffs’ claim fails. The delay of which Jones and
Nance complain was caused by the unavailability of the judges at the specific
time of the arrests and by their unannounced early departure on Monday. As
we have explained, such actions have not been shown to set a county policy and
cannot be a basis for liability of the named defendants. Under state law, it was
Bryan’s responsibility to bring the plaintiffs before a judge in a timely manner.
The record establishes a reasonable officer would not have believed that Bryan’s
actions in attempting to fulfill that obligation violated the plaintiffs’
constitutional rights under clearly established law. Bryan is therefore entitled
to qualified immunity.
31
Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985).
32
Plaintiffs also identify a third statute, Miss. Code Ann. § 19-25-67. This statute does
not create a protected liberty interest, however. Consequently, appellants cannot assert any
Section 1983 Fourteenth Amendment claims based on its violation. See Mendoza v. Bladgett,
960 F.2d 1425, 1428–29 (9th Cir. 1992).
10
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V.
We affirm the judgment of the district court.
11