IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60941

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 18, 2012

Lyle W. Cayce

Clerk

Case: 10-60941 Document: 00511825649 Page: 1 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 plaintiffsappellants 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. Summary judgment 1

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. If that party shows that the 2

LeMaire v. Louisiana Dept. of Transp. and Dev., 480 F.3d 383, 386 (5th Cir. 2007).

1

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing FED.

2

R. CIV. P. 56(c)).

2

Case: 10-60941 Document: 00511825649 Page: 2 Date Filed: 04/18/2012
No. 10-60941

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.” Such facts must consist of more than 3

“[c]onclusional allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation.” Finally, we “may 4

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. To continue 6

to detain the suspect, the state must obtain “a fair and reliable determination

of probable cause” by a neutral magistrate “promptly after arrest.” The Court 7

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

TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002) (internal

3

quotation marks omitted) (citing FED. R. CIV. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986)).

Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).

4

Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001).

5

 420 U.S. 103, 113 (1975).

6

Id. at 124–25. 7

500 U.S. 44, 56 (1991); see also Powell v. Nevada, 511 U.S. 79, 80 (1994) (“[P]rompt 8

generally means within 48 hours of the warrantless arrest; absent extraordinary

circumstances, a longer delay violates the Fourth Amendment.”) (internal quotation marks

omitted).

3

Case: 10-60941 Document: 00511825649 Page: 3 Date Filed: 04/18/2012
No. 10-60941

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.” It observed 9

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.” This 10

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.” That said, 48 hours is a

11

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.” Thus, 12

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

McLaughlin, 500 U.S. at 56. 9

Id. 10

Id. at 55, 57. 11

Id. at 57. 12

Id. 13

4

Case: 10-60941 Document: 00511825649 Page: 4 Date Filed: 04/18/2012
No. 10-60941

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.” If the defendant is a municipality or other body 15

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.” Although 16

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,” and for actions taken by an 17

official with “final policymaking authority” in that area. “A supervisor is not 18

personally liable for his subordinate’s actions in which he had no involvement.”19

See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., 14

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.”)

James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008).

15

Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690–91 (1978) (internal

16

quotation marks omitted).

City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988); see also Beattie v. Madison 17

Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Whether a person has such

18

authority is determined by state law. Id.

James, 535 F.3d at 373.

19

5

Case: 10-60941 Document: 00511825649 Page: 5 Date Filed: 04/18/2012
No. 10-60941

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, and provides the 48-hour timeline as a benchmark. That the policy 20 21

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,

See Swinney v. State, 829 So.2d 1225, 1231–32 (Miss. 2002) (holding that

20

“unnecessary delay,” as used in a state statute, was interchangeable with the “unreasonable

delay” standard of McLaughlin).

Appellants argue that McLaughlin requires a jurisdiction to schedule probable cause

21

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

Case: 10-60941 Document: 00511825649 Page: 6 Date Filed: 04/18/2012
No. 10-60941

and Monday afternoon. Defendants have repeatedly contended that the

22

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 DeputySheriff Ivan Bryan are

also unavailing. As the arresting officer, Bryan was responsible for ensuring the

arrestees were promptly brought before a magistrate. He maintains that even 24

if his actions are ultimately determined to have created unreasonable delay, he

is entitled to qualified immunity. We agree.

Sheriff Howard, Bryan’s superior, is not alleged to have been involved in, or even 22

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.

Plaintiffs argue that county employees did not try hard enough to locate a judge on 23

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.

See Miss. Code Ann. § 99-3-17 (“Every person making an arrest shall take the 24

offender before the proper officer without unnecessary delay for examination of his case.”)

7

Case: 10-60941 Document: 00511825649 Page: 7 Date Filed: 04/18/2012
No. 10-60941

“Qualified immunity protects officers from suit unless their conduct

violates a clearly established constitutional right.” Once a defendant raises the 25

defense of qualified immunity it becomes the plaintiffs’ burden to show that it

does not apply. “The relevant, dispositive inquiry in determining whether a

26

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

Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003).

25

Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005).

26

Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (internal quotation marks 27

and citation omitted).

8

Case: 10-60941 Document: 00511825649 Page: 8 Date Filed: 04/18/2012
No. 10-60941

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.” Jones and Nance base their claim on Bell v. 29

Wolfish, a conditions of confinement case, arguing that the delay in obtaining 30

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.

Although the district court did not decide the claims against Bryan on the basis of 28

qualified immunity, this argument was briefed by the parties below and on appeal.

Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009) (citing Hare v. City of 29

Corinth, Miss., 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc)) (internal quotation marks

omitted).

 441 U.S. 520, 536 (1979).

30

9

Case: 10-60941 Document: 00511825649 Page: 9 Date Filed: 04/18/2012
No. 10-60941

Plaintiffs’ final argumentis thattheir 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.” Jones and Nance identify 31

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. These statutes 32

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. 

Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985).

31

Plaintiffs also identify a third statute, Miss. Code Ann. § 19-25-67. This statute does

32

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

Case: 10-60941 Document: 00511825649 Page: 10 Date Filed: 04/18/2012
No. 10-60941

V.

We affirm the judgment of the district court.

11

Case: 10-60941 Document: 00511825649 Page: 11 Date Filed: 04/18/2012