* Pursuant to Local Rule 47.5, the Court has deter mined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60202

Summary Calendar

_______________

SCOTTY D. WHITE,

Plaintiff-Appellee

versus

LYNN BOYTE, Individually and

as Sheriff of Lincoln County,

Mississippi,

Defendant-Appellant.

______________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:94-CV-114-WS)

_______________________________________

May 22, 1997

Before GARWOOD, JOLLY AND DENNIS, Circuit Judges. *

GARWOOD, Circuit Judge:

Plaintiff-appellee Scotty White (White) filed this Mississippi

law diversity suit against defendant-appellant Lynn Boyte (Boyte),

Sheriff of Lincoln County, Mississippi, alleging that Boyte was

negligent in allowing inmates at the Lincoln County jail to assault

White while he was in jail for failing to appear at his arraignment

on the charge of driving while under the influence of alcohol. The2

jury returned a verdict in favor of White and awarded him $50,000

in damages for future disability and impairment. For the following

reasons, we reverse.

Facts and Proceedings Below

White, a citizen of Louisiana, was arrested on May 22, 1993,

in Lincoln County, Mississippi, for drivin g while under the

influence of alcohol. To avoid waiting in jail until the date of

his arraignment, White made bail by obtaining a bond from Jim

Ladewig (Ladewig), a bondsman. After making the bail payment, he

was released from jail. He was scheduled to return to court on May

28, 1993. When White failed to show up for his arraignment,

Ladewig obtained an arrest warrant on White for contempt of court.

On June 7, 1993, Ladewig arrested White and brought him to the

Lincoln County jail. He was placed in a cell on the first floor of

the jail, which was used to temporarily hold pre-trial detainees.

At approximately 10:00 p.m., he asked a trusty if he could have a

mattress and ta ke a shower. The trusty took him upstairs to the

cells on the second floor of the jail, which held both pre-trial

detainees and convicted felons.

White was placed in the cell with George Dubois, an

acquaintance of his. Once in the cell, Dubois approached White and

accused him of stealing his car and items from his house. An

altercation arose between White and Dubois, at which point two of1 The five inmates subsequently pleaded guilty to assault and

robbery on White.

3 the inmates, Ollie Porter (Porter) and Ricky Adams (Adams), began

punching White in the face. Porter, who was wearing combat boots,

kicked White in the head, chest, and ribs. Other inmates,

including Cedric Watson (Watson) and Steven Williams (William s),

took White’s money and punched and kicked him in the face and ribs.

Throughout the night, the inmates repeatedly assaulted White. As

a result of the assaults, White suffered serious injuries to his

right eye and ear. 1

The next morning, when the trusties brought breakfast to the

cell area, one of the trusties noticed the injuries to White’s head

and asked him if anything had happened to him. Afraid that the

inmates would retaliate against himfor disclosing what had

happened, White replied that he had sustained his injuries before

arriving at the jail. After eating breakfast, the inmates went

back to sleep, at which time White clandestinely used a pay phone

which was located inside the cell area to call his mother,

requesting that she get him out of jail. Later that morning, a

j ailor came to the cell area and removed White from the cell.

White told an investigator with the Lincoln County Deputy Sheriff

that he had been beaten in th e cell. After being interviewed he

was tak en to a hospital emergency room, where he was treated for

his injuries.

On March 8, 1994, White filed this suit in the United States2 Jurisdiction was grounded in diversity, Boyte being a citizen

of Mississippi and White a citizen of Louisiana. No federal claims

are involved.

3 Alternatively, Boyte maintains the court erred in denying his

request that the jury be instructed that if it found that Boyte did

not substantially exceed his authority as sheriff or commit an

intentional tort against White, Boyte could no t be liable for

White’s damages. Boyte’s proposed jury instruction on qualified

immunity read as follows:

“The Court instructs the jury tha t Sheriff Lynn

Boyte’s duties with regard to the housing of inmates in

the Lincoln County jailer [sic] are discretionary in

nature a nd, as a consequence, he is entitled to the

protection of qualified immunity. The law relegates to

all sheriffs the power of personal deliberation, decision

a nd judgment in the performance of his duties a s they

relate to prisoners. This discretion entitles a sheriff

to qualified immunity so long as he does not

4 District Court for the Southern District of Mississippi, Jackson

Division, alleging that under Mississippi law Sherif f Boyte was

negligent and legally responsible for White’s injuries at the hands

of other inmates (1) by placing him in a cell with individuals who

Boyte knew were dangerous and (2) by failing to maintain a proper

lookout or monitoring of White’s cell during the time of the

alleged assault. 2 The jury rejected White’s first negligence

claim, but returned a verdict in favor of White on his second

claim. The jury awarded White $50,000 for future disability and

impairment. Boyte then filed his notice of appeal to this Court.

Analysis

Boyte’s primary argument on appeal is that the district court

erred in failing to grant his motion for judgment as a matter of

law based on state law qualified immunity. 3 Under Mississippi law,substantially exceed his authority or intentionally harm

someone.

If you f ind from a preponderance of the credible

e vidence in this case that Sheriff Lynn Boyte d id not

substantially exceed his discretionary authority or

intentionally commit harm to the Plaintiff, Scotty White,

then it is your sworn duty to return a verdict in favor

of Sheriff Lynn Boyte.”

As we sustain Boyte’s claim that he was entitled to qualified

immunity as a matter of law, we need not actually reach this issue.

However, as our discussion reflects, even if there were a fact

issue on qualified immunity, the failure to grant this instruction

would doubtless be reversible error.

5 government officials who are sued for damages in a civil action

enjoy qualified immunity from tort liability unless they breach “a

legal duty [that] causes injury and (1) that duty is ministerial in

nature, or ( 2) that duty involves the use of discretion and the

governmental actor greatly or substantially exceeds his authority

and in the course thereof causes harm, or (3) the governmental

actor commits an intentional tort.” E vans v. Trader

, 614 So.2d

955, 957 (Miss. 1993) (citations omitted); see also Webb v.

Jackson

, 583 So.2d 949-50 (Miss. 1991). A ministerial duty or

function is one which has been “positively imposed by law and its

performance required at a time and in a manner or upon conditions

which are specifically designat ed, the duty to perform under the

conditions specified not being dependent upon the officer’s

judgment or discretion.” Sorey v. Kellet , 849 F.2d 960, 963 (5th

Cir. 1988); see also Mohundro v. Alcorn County

, 675 So.2d 848, 853

(Miss. 1996); Westbrook v. City of Jackson

, 665 So.2d 833, 8376

(Miss. 1995); Womble By and Through Havard on Behalf of Womble v.

Singing River Hosp

., 618 So.2d 1252, 1265 (Miss. 1993); Barrett v.

Miller

, 599 So.2d 559, 567-68 (Miss. 1992); McFadden v. State

, 580

So.2d 1210, 1217 (Miss. 1991); Sykes v. Grantham

, 567 So.2d 200,

211-12 (Miss. 1990).

Qualified immunity protects only those public officials

engaged in discretionary decision making. See, e.g., Region VII,

Mental Health-Mental Retardation Center v. Isaac , 523 So.2d 1013,

1016-18 (Mi ss. 1988) (holding that commissioners were acting in

their discretionary role in establishing supervised apartment

program and were therefore immune from liability for death of a

client stabbed by his roommate); Davis v. Little

, 362 So.2d 642,

644-45 (Miss. 1 978) (holding that supervisor charged with

negligence while driving county-owned truck was not entitled to

qualified immunity as the act of driving a vehicle did not involve

official discretionary decision-making process).

Both of the claims brought by White w ere grounded in

negligence. Because negligence is not an intentional tort, Boyte

is entitled to qualified immu nity unless his duty in maintaining

the safety of his jail can be classified as a ministerial duty or,

if the duty was discretionary, that he substantially exceeded his

authority. See Webb , 583 So.2d at 950.

Clearly, Boyte’s duties respecting maintenance of jail safety

were discretionary, not ministerial. He had broad discretion in7

making decisions an d formulating policies regarding safety and

protection of inmates in his jail. S ee McQu een v. Williams , 587

So.2d 918, 922 (Miss. 1991) (holding that sheriff’s duty to “safely

kee p in the jail of his county all persons committed by order of

[the] c ourts” was discretionary in nature). Boyte’s policy

decisions, such as decisions regarding where to place inmates and

how often jailers and trusties were to check on the inmates, were

not guided by any statute, guideline, or procedure. Indeed, White

did not present any evidence at trial that demonstrat ed that

Boyte’s duty involved no discretion. I d .; see also McFadden v.

State

, 54 2 So.2d 871, 880-81 (Miss. 1989) (holding that

Commissioner and Superintendent at the Mississippi State

Penitentiary had broad discretion in ma tters relating to prison

operations, including assignment, placement, housing, and

classification of inmates).

In support of his argument that Boyte’s duties with respect to

maintaining safety in the jail were ministerial, White cites Miss.

Code Ann. § 19-25-3 5. The Mississippi statute, however, only

generally requires that the sheriff “take int o his custody, and

safely keep, in the jail of his county, all per sons committed by

order of [the] courts . . . .” The statute does not positively

direct or specifically designate the sheriff’s specific duties visà-vis jail safety policies and procedures. C f. Coplin v. Francis

,

631 So.2d 752, 755 (Miss. 1994) (holding that const ruction of8

county road bridges in accordance with specifications mandated by

Miss.Code Ann. § 65-21-1 was ministerial in nature, thus precluding

supervisor from raising qualified immunity).

In addition to the Mississippi statute, White also relies on

Farmer v. State for Use of Russell

, 79 So.2d 528 (Miss. 1955). In

Farmer

, the widow of a prisoner who died whi le in the sheriff’s

custody sued the sheriff, arguing that the sheriff failed, after

repeated requests from the prisoner, to take the prisoner to a

doctor to receive treatment for serious stomach ulcers that caused

his death. The Mississippi Supreme Court held that the sheriff was

liable for the prisoner’s death because he negl igently failed to

provide reasonable care to the prisoner.

White’s reliance on Farmer is misplaced. Farmer was decided

before the doctrine of qualified immunity was fully developed by

the Mississippi courts. Since F armer

, the Mississippi courts have

substantially clarified the qualified immunity doctrine. S ee,

e.g., Bogard v. Cook

, 586 F.2d 399, 415 (5th Cir. 1978) (explaining

that “[ Farmer and its progeny] were decided prior to Scheuer v.

Rodes ,[94 S.Ct. 1683 (1974),] at a time when the doctrine of

qualified immunity was in its appellate court infancy.”), cert.

denied , 100 S.Ct. 173 (1979). Moreover, it does not appear that

the qualified immu nity issue was raised by the parties or

considered by the court in Farmer

, as the court did not mention or4 The Farmer court did discuss the applicability of judicialtype immunity. However, the court found that the immunity did not

apply because the sheriff failed to take the necessary initial

steps of examining the prisoner before forming an opinion as to

whet her the prisoner needed medical attention. Without any

examination, the court opined, the sheriff could not claim that his

“failure to call a doctor was because of any opinion, judicial or

otherwi se, formed by the sheriff . . . that the prisoner did not

need medical care.” Farmer , 79 So.2d at 530.

5 Boyte raises other arguments in his brief, including

complaints that the jury failed to follow the court’s instructions

and that the court should have excluded the testimony of one of

White’s expert wi tnesses. Because we conclude that Boyte is

entitled to qualified immunity, we need not address the merits of

these arguments.

9 discuss qualified immunity anywhere in its opinion. 4

Finally, t h e evidence reflects that Boyte did not

substantially exceed his discretion in any way. To the contrary,

the undisputed evidence at trial established that Boyte acted well

within his discretion in implementing a policy that required the

jailers on duty to check periodically on the inmates. Boyte

testified that the jailers on duty were required to check on the

inmates on a periodic basis, and Trusty Carol Britt and Jailer

Retha Bates testified that the policy at the jail was to check on

inmates during the night once every thirty to forty-five minutes.

Although it is unclear whether any of the jailers or trusties

actually checked the inmates the particular night White was beaten

in his cell, we cannot say that there is any evidence that B oyte

greatly exceeded his discretion in establishi ng jail policy in

these respects or in any other relevant particular. 510 Conclusion

For the foregoing reasons, the judgment of the district court

is

REVERSED.