IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60287

JOSEPH GERHART, Individually, and Next Friend of Brett Michael 

Gerhart, Ian Michael Gerhart, and Sarah Robillard, Minors; AMANDA JO 

GERHART, Individually, and Next Friend of Brett Michael Gerhart, Ian 

Michael Gerhart, and Sarah Robillard, Minors, 

 Plaintiffs – Appellees,

v.

JOHNNY BARNES, in his Official and Individual Capacity; BRETT 

MCALPIN, Deputy, in his official and individual capacity, 

 Defendants – Appellants. 

Appeals from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:11-CV-586

United States Court of Appeals

Fifth Circuit

FILED

March 12, 2018

Lyle W. Cayce

Clerk

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Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:*

In this interlocutory appeal, Officer Johnny Barnes and Deputy Brett 

McAlpin appeal the denial of their summary-judgment motions on qualified 

immunity and Mississippi tort law grounds. We AFFIRM the district court’s 

denial of summary judgment on qualified immunity grounds and REVERSE 

the denial of summary judgment on the Mississippi tort claim and render 

judgment on that claim. 

I.

A panel of this court previously ruled on an interlocutory appeal based 

on qualified immunity for the third individual, Agent Brad McLendon, who 

entered the Gerharts’ home. See Gerhart v. McLendon, No. 17-60331, 2017 WL 

4838405 (5th Cir. Oct. 25, 2017).1 We discussed the facts in detail in that 

opinion and we reiterate those facts below: 

By June 2010, Detective Jamie Scouten of the Pearl Police 

Department had spent several months investigating the residence 

at 473 Robert Michael Drive in Pearl, Mississippi. As part of that 

investigation, Scouten used a confidential informant (“CI”) to 

conduct “buy-bust” operations in which the informant would 

purchase methamphetamine at the residence. The U.S. Drug 

 

* Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion 

should not be published and is not precedent except under the limited circumstances set forth 

in Fifth Circuit Rule 47.5.4.

1 In that opinion, we affirmed the district court’s judgment holding that McLendon 

was not entitled to qualified immunity. McLendon, 2017 WL 4838405, at *1. As we stated 

in that opinion, “we lack jurisdiction to review the district court’s factual findings” and thus 

“base our legal conclusions on the facts that the district court found sufficiently supported in 

the summary judgment record, Gerhart v. Rankin Cnty., No. 3:11-CV-586, 2017 WL 1238028 

(S.D. Miss. Mar. 31, 2017).” Id. at *1 n.1. “Due to our limited jurisdiction, we cannot review 

the district court’s factual findings. Nor do we have the benefit of the evidence as it will 

emerge at trial. Thus, our opinion should not be read to preclude dismissing this case on 

qualified immunity grounds at another point in the proceedings.” Id. at *5 n.6. 

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Enforcement Administration (“DEA”) learned about Scouten’s 

operation. It requested that he conduct another buy-bust 

operation in order to “freshen up” the probable cause for arrest and 

search warrants. Based on the DEA’s interest, Scouten requested 

back-up from other law enforcement agencies, including Rankin 

County and the Rankin County District Attorney’s Office. Prior to 

the operation, he prepared warrants and supporting affidavits for 

473 Robert Michael Drive. The plan was for the CI to purchase 

methamphetamine and bring it to the officers, who would test it. 

Scouten would then fill in the salient details in the warrant and 

get a judge’s approval.

. . . .

The operation took place on June 7, 2010. Scouten held a 

briefing beforehand at the police station. During that briefing, 

Scouten told all of the officers participating that the target 

residence was 473 Robert Michael Drive. He then wrote “473 

Robert Michael Drive” across the top of a sheet of paper and asked 

the CI to draw a diagram of the interior of the residence. Scouten 

and the CI also went over a number of other key details during 

that briefing, including the location, the persons involved, the type 

of narcotics, and the identity of the CI. This last piece of 

information was key because if the officers needed to enter the 

residence, it was important for the CI’s safety that they could 

identify her. Scouten used Google Earth images to familiarize 

officers with the location and appearance of the target residence. 

Scouten also mentioned that an unusual van with a “dualie [sic] 

axle” was parked in the driveway of the target residence. Because 

the target residence had burglar bars around all windows, Scouten 

told the others that they would have to enter through a side door.2

. . . . 

Scouten divided the officers into several vehicles, making 

sure that at least one officer in each vehicle could access the Pearl 

Police Department’s radio channels. McLendon was assigned to a 

vehicle with two other officers: Brett McAlpin of the Rankin 

County Sheriff’s Department and John Barnes of the Pearl Police 

Department. Barnes, McAlpin, and McLendon were tasked with 

stationing themselves at the end of Robert Michael Drive, where 

they would maintain visual contact with the residence in order to 

track the CI and ensure that no suspects left. They were the only 

 

2 The Gerhart house did not have any burglar bars.

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officers who could see the target residence. The others were 

parked out of sight at a nearby church.

The CI and the officers left the station around 7:00 p.m. The 

plan was for McLendon to follow the CI to the residence. 

McLendon insisted that he did not follow the CI to the target 

residence, though others testified that he did. Barnes and Scouten, 

for instance, both testified that McLendon had to brake as the CI 

turned into the driveway of the target residence in order to avoid 

hitting her vehicle. McLendon then drove past the residence for 

about 200 yards, turned around, and parked facing the residence. 

It was still daylight when they arrived, weather conditions were 

normal, and the terrain between the officers and the target 

residence was level.

Barnes, McAlpin, and McLendon gave inconsistent 

testimony about who identified the target residence and how. 

Barnes claimed that he identified the target residence (at 473 

Robert Michael Drive) correctly and pointed out the van with the 

unusual “dualie [sic] axle.” McAlpin initially testified that both 

Barnes and McLendon identified 481 Robert Michael Drive as the 

target residence, though he later stated that only Barnes did so. 

McLendon also testified that Barnes identified 481 Robert Michael 

Drive as the target residence as they drove past and that he 

specifically pointed to a young man standing outside that 

residence.

The CI entered 473 Robert Michael Drive and bought $600 

of methamphetamine. Suddenly, the CI texted Scouten to tell him 

she was in danger. Scouten broadcast to the other officers that the 

CI was in danger. He told them to converge on the target residence 

and do everything they could to help the CI. All vehicles 

acknowledged the signal—except McLendon’s. Barnes testified 

that he had turned his radio off because McLendon was trying to 

tune into the radio broadcast from the CI’s recording equipment. 

Scouten specifically requested a response from McLendon’s 

vehicle. Barnes replied that he did not hear the prior 

transmission, and Scouten repeated it. McAlpin was aware of the 

second call to go to the target residence, whereas McLendon 

testified that it never happened.

Meanwhile, Brett Gerhart was standing in front of his house 

at 481 Robert Michael Drive when he noticed McLendon’s black 

Cadillac Escalade drive by and park at the end of the street. Some 

time later, he heard McLendon’s tires screech as McLendon raced 

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toward the Gerhart residence. McLendon drove onto the Gerharts’

yard and parked between some trees. According to Brett, the blue 

siren lights on McLendon’s car were not on, and so there was no 

indication that it was a police vehicle. As Scouten was rounding 

the corner, he saw McLendon driving down the street. After 

Scouten got out of his vehicle, he heard yelling and saw McAlpin, 

McLendon, and Barnes running across the Gerhart yard and into 

the house.

Barnes, McAlpin, and McLendon got out of the vehicle and 

pulled out their weapons. McAlpin told Brett to get on the ground, 

though it is disputed whether he identified himself as a police 

officer. All three officers were, however, wearing vests identifying 

them as police officers. Brett testified that he did not notice the 

vests until the officers left. When McClendon’s vehicle came to a 

stop on the Gerharts’ yard, Brett ran into the residence through a 

side door and locked the door behind him. He went through the 

residence, shouting, “They have guns!” McAlpin kicked in the side 

door and started to chase Brett. Brett testified that he then ran 

through the front door to prevent intruders from coming into the 

house. According to Brett, McAlpin caught him at the front door, 

threw him to the ground, and began kicking him in the side and 

back of the head. McAlpin acknowledges that he pointed his gun 

at Brett’s head but denies kicking him. McAlpin then brought 

Brett into the living room.

McLendon encountered Joseph Gerhart, Brett’s father, 

when he entered the residence. Joseph was on the floor by that 

time, and McLendon aimed his gun at Joseph’s face. When Joseph 

tried to get up to help his son, McLendon put his hand on Joseph’s 

back and repeatedly told him to stay down. Barnes was the last to 

enter the residence, where he encountered Amanda Gerhart in a 

fetal position, holding a baby in her arms. Amanda testified [that]

she only assumed a fetal position after Barnes pointed his gun at 

her. After Barnes asked for Amanda’s name, he realized that they 

were in the wrong house. Amanda, however, testified that Barnes 

never said anything to her. She managed to retreat to her son Ian’s 

room and told him to call 911. Ian made the call and told the 

operator that there were men with guns in the house.

Barnes found McAlpin in the living room, where he had 

Brett pinned to the ground. After Barnes told McAlpin that they 

were in the wrong house, McAlpin got off of Brett and left. 

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McLendon likewise left when he discovered that they were in the 

wrong house.

While Barnes, McAlpin, and McLendon were inside the 

Gerhart residence, Scouten and the other officers had converged 

on the target residence. After Scouten arrived, he initially believed 

that it would not be possible to get in without breaching tools, and

he went to look for McAlpin, who was supposed to bring them to 

the target residence. He walked toward the Gerhart residence and 

saw McAlpin and McLendon leaving. Someone yelled from the 

target residence that they had finally managed to break in without 

the breaching tools, and Scouten returned to the target residence.

Brett suffered injuries to his face and neck, and the city of 

Pearl ultimately paid for the door that McAlpin destroyed. The 

Pearl Police Department also conducted an investigation of the 

incident, which concluded that the officers were inattentive.

McLendon, 2017 WL 4838405, at *1–3 (footnote omitted). 

II.

The Constitutional Claims

We have jurisdiction to review a district court’s denial of a claim of 

qualified immunity; such a denial is immediately appealable. Mitchell v. 

Forsyth, 472 U.S. 511, 526–27, 530 (1985). This is because qualified immunity 

is “an immunity from suit rather than a mere defense to liability,” and “it is 

effectively lost if a case is erroneously permitted to go to trial.” Id. at 526. 

“Because the plaintiff is the non-moving party, we construe all facts and 

inferences in the light most favorable to the plaintiff.” Melton v. Phillips, 875 

F.3d 256, 261 (5th Cir. 2017) (en banc) (citing Mullenix v. Luna, 135 S. Ct. 305, 

307 (2015)). Thus, “on interlocutory appeal the public official must be prepared 

to concede the best view of the facts to the plaintiff and discuss only the legal 

issues raised by the appeal.” Gonzales v. Dallas County, 249 F.3d 406, 411 (5th 

Cir. 2001). 

Our review is limited to “the purely legal question whether a given 

course of conduct would be objectively unreasonable in light of clearly 

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established law.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).

“[W]e cannot second-guess the district court’s determination that genuine 

factual disputes exist.” McLendon, 2017 WL 4838405, at *4 (citing Kinney, 367 

F.3d at 348). “When the district court fails to set forth the factual disputes 

that preclude granting summary judgment, we may be required to review the 

record in order ‘to determine what facts the district court, in the light most 

favorable to the nonmoving party, likely assumed.’” Kinney, 367 F.3d at 348 

(quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)). 

“A good-faith assertion of qualified immunity alters the usual summary 

judgment burden of proof, shifting it to the plaintiff to show that the defense 

is not available.” Melton, 875 F.3d at 261 (quoting King v. Handorf, 821 F.3d 

650, 653 (5th Cir. 2016)). To overcome the qualified-immunity defense, a 

plaintiff must show first “that the official violated a statutory or constitutional 

right” and second that “the right was ‘clearly established’ at the time of the 

challenged conduct.” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th 

Cir. 2011) (en banc)). To avoid summary judgment on qualified immunity, “the 

plaintiff need not present absolute proof, but must offer more than mere 

allegations.” Id. (quoting King, 821 F.3d at 654).

A. Unlawful Entry

The officers contend that the unlawful-entry claim fails because the 

district court’s order refers to this claim as one for “Fifth Amendment 

violations under 42 U.S.C. § 1983 for unlawful entry,” even though the Fifth 

Amendment does not apply to claims against municipal actors like Barnes and 

McAlpin. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996) (“[T]he Fifth 

Amendment applies only to the actions of the federal government . . . .”). 

However, this appears to be a mere scrivener’s error, as the district court

conducted a lengthy Fourth Amendment analysis on the same unlawful-entry 

claim asserted against McLendon. See Gerhart v. Rankin County, No. 3:11-

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CV-586-HTW-LRA, 2017 WL 1238028, at *10–12 (S.D. Miss. Mar. 31, 2017), 

aff’d sub nom. Gerhart v. McLendon, No. 17-60331, 2017 WL 4838405 (5th Cir. 

Oct. 25, 2017). 

“A warrantless search of a home is presumptively unreasonable, absent 

probable cause, consent, or exigent circumstances.” McLendon, 2017 WL 

4838405, at *5 (citing United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001)). 

“Nonetheless, no Fourth Amendment violation occurs when officers attempting 

to perform a valid search mistakenly search the wrong property—as long as 

they make ‘a reasonable effort to ascertain and identify the place intended to 

be searched.’” Id. (quoting Maryland v. Garrison, 480 U.S. 79, 88 (1987)). 

Here, both Barnes and McAlpin attended the briefing prior to the buybust operation, although McAlpin states that he was “in the hallway or on the 

outskirts of” the “immediate area” where the briefing occurred. The briefing

discussed key details including the address of the target residence, a diagram 

of the residence, and the identity of the confidential informant. Scouten used 

Google Earth images to familiarize officers with the location and appearance 

of the target residence. In addition, Scouten mentioned that an unusual van 

with a “dualie [sic] axle” was parked in the driveway of the target residence. 

Scouten also told the officers that they would have to enter the target residence 

through a side door because the target residence had burglar bars around all 

windows. 

As noted above, Barnes and McAlpin were responsible for maintaining

visual contact with the residence in order to track the confidential informant

and ensure that the suspect did not leave. Moreover, Scouten’s case report 

indicates that McAlpin was assigned to carry door breaching tools and was “to 

use these tools to gain entry into the residence if needed.” According to 

Scouten’s case report, the vehicle in which Barnes and McAlpin rode followed

the confidential informant’s vehicle. It appears that Barnes, McAlpin, and the 

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other officer were the only ones who followed the confidential informant all the 

way to the target residence. 

Despite the importance of the briefing and their key leadership roles in 

the buy-bust operation (e.g., breaching the target residence if necessary, 

maintaining visual surveillance), Barnes and McAlpin both failed to absorb 

critical details of the plan. When asked whether he knew the correct address 

of the target residence from the briefing, Barnes testified, “I knew that area. I 

didn’t know the exact house.” McAlpin also testified that he was unaware of 

the exact address. When asked if he saw the confidential informant’s vehicle 

pull into the driveway of the target residence, McAlpin responded that he did 

not. As noted above, all of this took place while it was daylight. We hold that 

the district court relied on these facts in determining not to grant summary 

judgment to the officers. 

We have emphasized that “[w]hat’s reasonable for a particular officer 

depends on his role in the search.” McLendon, 2017 WL 4838405, at *6 

(quoting Hunt v. Tomplait, 301 F. App’x 355, 362 n.8 (5th Cir. 2008)). In its 

opinion and order denying McLendon’s summary-judgment motion on

qualified immunity, the district court found that the investigative report on 

the entry into the Gerharts’ residence “indicates that inattentiveness on the 

part of the officers was the direct cause of the Gerhart incident.” Rankin 

County, 2017 WL 1238028, at *8. Consistent with our prior opinion in 

McLendon, we hold that fact issues on whether Barnes and McAlpin violated 

the Fourth Amendment precluded the district court from granting summary 

judgment to the officers on the unlawful-entry claim.3

 

3 Arguments about exigent circumstances do not alter this conclusion. As we stated 

in McLendon, “[t]he danger facing the [confidential informant] was undoubtedly an exigent 

circumstance. But the [confidential informant] was at the target residence, not the Gerhart 

residence.” 2017 WL 4838405, at *7. Barnes’s and McAlpin’s “determination that the danger 

was inside the Gerhart residence rather than the target residence was not reasonable” 

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As for the second prong of the qualified-immunity analysis, we held in 

McLendon that it was clearly established at the time of the alleged unlawful 

entry that “an officer must make reasonable, non-feeble efforts to correctly 

identify the target of a search—even if those efforts prove unsuccessful.” 

McLendon, 2017 WL 4838405, at *5 (citing Rogers v. Hooper, 271 F. App’x 431, 

435 (5th Cir. 2008)). Accordingly, a fact issue on whether Barnes and McAlpin 

violated clearly established law precluded the district court from granting 

summary judgment to the officers on the unlawful-entry claim. 

B. Excessive Force

McAlpin also appeals the denial of summary judgment on qualifiedimmunity grounds with regard to the excessive-force claim asserted against 

him. Whether a use of force is excessive and therefore a constitutional 

violation depends on whether there was “(1) an injury, (2) which resulted 

directly and only from a use of force that was clearly excessive, and (3) the 

excessiveness of which was clearly unreasonable.” Poole v. City of Shreveport, 

691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564 

F.3d 379, 382 (5th Cir. 2009)). 

We apply the Graham factors to determine whether the force used is 

“excessive” or “unreasonable.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 

2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). These factors 

include “the severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of the officers or others, and whether he is 

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 

U.S. at 396. “The ‘reasonableness’ of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, rather than with the 

 

because there is a fact issue on whether the officers failed to take reasonable affirmative 

steps to ensure they knew the correct address. See id. 

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20/20 vision of hindsight” with the recognition that “police officers are often 

forced to make split-second judgments—in circumstances that are tense, 

uncertain, and rapidly evolving—about the amount of force that is necessary 

in a particular situation.” Id. at 396–97 (citation omitted).

In addition, the injury must be more than de minimis to be cognizable. 

Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001). “[T]he amount of 

injury necessary to satisfy our requirement of ‘some injury’ and establish a 

constitutional violation is directly related to the amount of force that is 

constitutionally permissible under the circumstances.” Ikerd v. Blair, 101 F.3d 

430, 434–35 (5th Cir. 1996). 

Here, viewing the facts in the light most favorable to the plaintiffs, there 

is a fact issue as to whether McAlpin kicked Brett Gerhart in the head 

repeatedly after throwing Brett facedown onto the concrete porch. Joseph 

Gerhart, Brett’s father, testified that he heard his son screaming “I’m down, 

I’m down,” and that the officer was kicking his son while his son was already 

on the ground. Moreover, Brett’s father testified that McAlpin then brought 

Brett into the house, and rather than handcuffing him, pinned Brett to the 

floor with his knee, shoved a pistol in his face, and said, “If you move, I’ll blow 

your f---ing head off.” We hold that the district court relied on these facts in 

determining not to grant summary judgment to McAlpin on the excessive-force 

claim. 

Applying the Graham factors, we note that there is a fact issue as to 

whether Brett posed an immediate threat to the officers’ safety when he was 

lying prone on the concrete yelling that he was already down and whether 

Brett was actively resisting or attempting to evade arrest. Furthermore, there 

is some evidence that injuries to Brett’s face resulted “directly and only from a 

use of force that was clearly excessive.” See Poole, 691 F.3d at 628. 

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As to the second prong of the qualified-immunity analysis, we reiterate 

our holding in Brown v. Lynch that “[a]t the time of the incident, the law was 

clearly established in this circuit that repeatedly striking a non-resisting 

suspect is excessive and unreasonable force.” 524 F. App’x 69, 81 (5th Cir. 

2013) (unpublished) (citing Anderson v. McCaleb, 480 F. App’x 768, 773 (5th 

Cir. 2012); Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008); Goodson v. City 

of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)). Thus, fact issues 

precluded granting summary judgment to McAlpin on the excessive-force 

claim. 

III.

The Mississippi Tort Claim

The district court also denied the officers summary judgment on the 

Gerharts’ state-law claim of reckless infliction of emotional distress.4 Barnes 

and McAlpin argue that we should exercise pendent appellate jurisdiction to 

review the Gerharts’ state-law tort claim. The Gerharts do not contest this 

jurisdictional argument. Nonetheless, we have the responsibility to determine 

the basis of our jurisdiction. Alvidres-Reyes v. Reno, 180 F.3d 199, 203 (5th 

Cir. 1999). 

“The denial of immunity under Mississippi law, like a denial under 

federal law, is appealable under the collateral order doctrine. Lampton v. Diaz, 

661 F.3d 897, 899 (5th Cir. 2011); see also Hinds County v. Perkins, 64 So. 3d 

982, 986 (Miss. 2011) (en banc) (noting that “denials of immunity at the 

summary judgment stage are reviewed via the interlocutory appeal process”). 

We have held that “[i]n the interest of judicial economy, this court may exercise 

 

4 While the district court refers to the tort claim as one for “reckless” rather than 

“intentional” infliction of emotional distress, we need not resolve whether the Gerharts 

properly pleaded a claim for reckless infliction of emotional distress. This is because neither 

claim here overcomes the Mississippi Tort Claims Act provision of immunity for government 

employees acting within the scope of employment and sued in their personal capacities. 

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its discretion to consider under pendant appellate jurisdiction claims that are 

closely related to the issue properly before us.” Morin, 77 F.3d at 119 (footnote 

omitted). Exercising this discretion is appropriate when, as here, we confront 

a claim of immunity under state law regarding the same conduct at issue in 

the qualified-immunity context. See id. Otherwise, were we “to refuse to 

exercise jurisdiction over the state law claims, our refusal would defeat the 

principal purpose of allowing an appeal of immunity issues before a 

government employee is forced to go to trial.” Id. at 119–20 (footnote omitted). 

The Mississippi Supreme Court has recognized that “any tort claim filed 

against a governmental entity or its employee shall be brought only under the 

[Mississippi Tort Claims Act].” Conrod v. Holder, 825 So. 2d 16, 19 (Miss. 2002)

(citation omitted). Under Mississippi law:

An employee may be joined in an action against a governmental 

entity in a representative capacity if the act or omission 

complained of is one for which the governmental entity may be 

liable, but no employee shall be held personally liable for acts or 

omissions occurring within the course and scope of the employee’s 

duties.

Miss. Code. Ann. § 11-46-7(2) (emphasis added). “The [Mississippi Tort Claims 

Act] contains an exception to this immunity if an officer’s conduct ‘constituted 

fraud, malice, libel, slander, defamation or any criminal offense other than 

traffic violations . . . .’” Rogers v. Lee County, 684 F. App’x 380, 391 (5th Cir. 

2017) (unpublished) (quoting Miss. Code. Ann. § 11-46-5(2)). 

The Mississippi Supreme Court “has been consistent in rejecting the 

viability of claims against public employees where their political subdivision 

employer has been eliminated as a defendant.” Conrod, 825 So. 2d at 19 

(quoting Cotton v. Paschall, 782 So. 2d 1215, 1218 (Miss. 2001)). “[U]nless the 

action is brought solely against an employee acting outside of the scope of his 

employment, the government entity must be named and sued as the party in 

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interest under the Tort Claims Act.” Id. (citation omitted). Moreover, it is “a 

rebuttable presumption that any act or omission of an employee within the 

time and at the place of his employment is within the course and scope of his 

employment.” Miss. Code. Ann. § 11-46-5(3). 

The Gerharts do not contest that the officers were acting within the 

course and scope of their employment here, nor do they argue that Barnes’s 

and McAlpin’s conduct constituted malice or criminal behavior. The district 

court dismissed Defendants Rankin County, Mississippi; Rankin County 

Sheriff’s Office; and McAlpin in his official capacity. The Gerharts allege that 

McAlpin was an employee of Rankin County and/or Rankin County Sheriff’s 

Office at the time of the incident. In addition, the district court dismissed 

Defendants the City of Pearl, Mississippi and Barnes in his official capacity. 

The Gerharts allege that Barnes “was at all times material hereto an officer 

employed by the Defendants, the Pearl Police Department and the City of 

Pearl, Mississippi” and that “[h]is acts of commission or omission are 

vicariously attributed to the Defendant, the City of Pearl, Mississippi.” 

Thus, the immunity provided by the Mississippi Tort Claims Act shields 

Barnes and McAlpin from personal liability. In allowing the Gerharts to 

proceed with this tort claim against the officers in their individual capacities, 

the district court erred. Thus, we dismiss the Gerharts’ state-law tort claim 

against the officers in their individual capacities.

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IV.

Accordingly, we AFFIRM the district court’s judgment denying Barnes 

and McAlpin summary judgment as to qualified immunity on the Gerharts’ 

constitutional claims, and we REVERSE and render judgment on the

Mississippi tort claim.5 

 

5 Barnes requests that we reassign the case to a different district court if the case is 

remanded. McAlpin does not make this request. The Gerharts contend that Defendants’ 

strategic litigation choices rather than the district court’s actions are the main reason for the 

lawsuit spanning six years. In addition, the Gerharts amended their complaint four times, 

and their fourth amended complaint was filed in December 2016. “A federal court of appeals 

has the supervisory authority to reassign a case to a different trial judge on remand.” United 

States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999); see Johnson v. Sawyer, 120 F.3d 1307, 

1333 (5th Cir. 1997); 28 U.S.C. § 2106. “However, this is an extraordinary power and should 

rarely be invoked.” Winters ̧ 174 F.3d at 487. This case does not demand such an exercise of 

our authority, and we deny Barnes’s request for reassignment.

 

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