### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 C o u n t y 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 c omplained they were detaine d f

or more than 48 hours without a determination of probable cause or
an initial appearance, in violation of the Fourth, Fifth, Eighth, and Fourteenth U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 18 , 20 12 Lyle W . Cayce Clerk Case: 10-60941 Document: 00511825649 Page: 1 Date Filed: 04/18/2012No. 10-60941

A m e n d m e n t s . F o l l o wing discovery, the district court granted d e f e n d a n t s ’ m o t i o n for summary judgment. We affirm. I. On Saturday April 5, 2 0 0 8 the Lowndes County Sheriff’s Department received a 911 call reporting a suspicious perso n p urchasing pseudoephedrine pills, a precursor to the manufacture of methamphetamine. Defendant-appellee Ivan Bryan, a deputy sheriff, responded to the call and a r rested 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 n e x t m o rning 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 i n i tial 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 ju d g m ent 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. I f t h a t party shows that the 2

LeM ai re v. Lou is ia na De

pt. of T ra nsp . and De v. , 480 F.3d383 , 386 (5t h Cir

. 2007)

. 1
Turn er v. Bayl or Ric har dson Me d. Ctr. , 476 F.3d 337, 343 (5t h Cir. 2007) (c itin g F E D

. 2 R. C IV

. P. 56(c ))

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

non-mo v i n g 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]on c l u sional allegations and denials, speculation, improbable inferences, unsubstantiated asser t i o n s , 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 Gerste i n 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

e l a b o rated on this in County of Riverside v. McLaughlin : “a jurisdiction t h a t 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. Sedgw ic k Jam es of Was h. , 276 F.3d 754, 759 (5t h Cir. 2002) (int erna l 3 quot atio n mar ks om itt ed) (c itin g F E D

. R. C IV

. P. 56(e ); Ma tsushi ta Ele c. Indus

. Co. v. Zeni th Radi o , 475 U. S. 574 , 587 (198 6))

. Id. (c itin g SEC v

. Rec il e , 10 F. 3d 1093, 109 7 ( 5th Cir. 199 3))

. 4
Ho ltz cl aw v . DSC Com mc ’ns Corp

. , 255 F.3d254 , 258 (5t h Cir

. 2001)

. 5
420 U .S

. 103, 113 ( 1975)

. 6
Id. at 124–25. 7
500 U. S. 44, 56 (199 1); see a ls o Po we ll v. Nev ada , 511 U. S. 79, 80 (199 4) (“ [P] rom pt 8 genera lly me ans wi thin 48 hours of the wa rra ntle ss arr es t; abs ent extr ao r d i nary cir cum st ance s, a longer del ay violat es the Fourt h Ame ndm ent. ”) (int erna l quot at i o n m a r k s om itt ed)

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The o verarching constraint upon the state imposed by the Fourth A m e n d m ent is its demand of reasonableness. Applying this fundamental precept the Court provided the 48-hour ma r k , b u t cautioned that “we hesitate to announc e t hat 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 Fo u r t h 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 individ u a l, or delay for delay’s sake.” This 1 0 standard, however, accepts that police must “cope with the everyday problems of processing suspects through an overly burdened criminal justice s y s t em,” including “delays in transporting arrested person s , ” “handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing oth e r suspects or securing the premises of the arrest, and other practical realities.” That said, 48 hours is a 1 1 significant marker. If the determination of probable cau s e i s d elayed by more than 48 hours the b u r d e n s h i fts 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, 1 2

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. 1 3

Mc Laughl in , 500 U. S. at 56. 9
Id. 1 0
Id. at 55, 57. 1 1
Id. at 57. 1 2
Id. 1 3
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It is undisputed that more than 48 hours lapsed before Jones and Nance

r e c e ived a determination of probable cause. They contend the defendants did no t show this delay was justified by e x traordinary circumstances and were not entitled to summary judgment. We do not reach the merit s o f t h i s argument because Jones and Nance failed to show that any defendant is liable for the alleged deprivation of their Fourth Amendment rights. 1 4 A S e c t ion 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 1 5 of loca l government, the alleged deprivation must be connected to “a governmental custom,” “policy statem e n t , ordinance, regulation, or decision officially adopted and promulgated by the body ’ s o fficers.” Although 1 6 municipalities are not vicariously liable for vi o l a t i ons 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 1 7 official with “final policymaking authority” in that area. “A supervisor is not 1 8 personally liable for his subordinate’s actions in which he had no involvement.” 1 9

See As hw ande r v. Tenn

. Va ll ey Auth. , 297 U. S. 288, 347 (193 6) (B r a n dei s, J., 1 4
conc urr in g) (“ The Court wi ll not pas s upon a cons tit utio nal ques tio n altho ugh pr ope rly pr es ente d by the rec ord , if there is als o pr es ent som e othe r groundupon w hich the case may be dis pos ed of. ”)

Jam es v. T

ex. Col li n Cnty. , 535 F.3d365 , 373 (5t h Cir

. 2008)

. 1 5
Mo nel l v. New Yor k City De pt. of Soci al Serv s. , 436 U. S. 658, 690–91 (197 8) (int erna l 1 6 quot atio n m ark s om itt ed)

.

City of St. Loui s v. Prap rotni k , 485 U. S. 112, 122 (198 8); see al so Beatti e v. Ma dis on 1 7 Cnty. Sch. D is t. , 254 F.3d595 , 601 (5t h Cir

. 2001)

.

Pem baur v. City of Cinc inna ti , 475 U. S. 469, 483 (198 6). Whet her a per so n has suc h 1 8 autho rit y is d ete rm inedby st ate law

. Id.

Jam es , 535 F.3dat 373

. 1 9 5 Case: 10-60941 Document: 00511825649 Page: 5 Date Filed: 04/18/2012No. 10-60941

J o n e s a n d N a nce identify only one policy they claim caused the depriv a t i o n of their Fourth Amendmen t r i g hts. 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 all o w i n g d eterminations of probable cause or initial appea r a n c e s 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 p o l i c y i n 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

2 0 2 1 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,

S e e S wi nney v. State , 829 So. 2d 1225, 1231–32 (M iss

. 2002) (ho ldi ng tha t 20 “unne ces sar y del ay,” as used in a st ate stat ute, wa s interc hangeabl e wi th the “unreas onable del ay” st andar d of Mc Laughl in ).

App ellant s argue that Mc Laughl in requ ires a juris dic tio n to sc hedu le pr obable caus e 2 1 det erm inati ons and init ial app eara nces “in no event late r than 48 hours aft er arr es t. ” See 500 U. S. at 57. This st atem ent is tak en out of cont ext. Mc Laughl in use d that language wh en dis cus sin g “[ a] juris dic tio n that choo se s to off er com bined pr oce edi ngs, ” em phas izing that “[ t] he fac t that in a par tic ular cas e it may tak e longer than 48 hours to co n s o lid ate pr etr ial pr oce edi ngs do es not qualif y as an extraor dina ry circ ums tanc e.” Id. It does not app ear f rom the rec ord , and neit her par ty has allege d, t h a t the del ay in this cas e wa s due to the juris dic tio n’s p olic y of c om bining pr etr ial pr oce edi ngs.

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and Monday afternoon. Defendants have repeatedly contended that t h e 2 2 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 a f ternoon, 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, m u c h 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 re q u i red the judges to be available at certain times. Because the judges’ actions caused the complained-of delay and plaintiffs failed to show that defendant s w e r e l i able for those judges’ actions, summary judgment was appropriate. 2 3 The Four t h A m e n d m e n t a l l e g a t i o n s a g a i n s t D e p u ty S h e r iff 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 2 4 if his actions are ultimately determined to have created unreasonable delay, he is entitled to qualified immunity. We agree.

Sher iff Ho wa rd , Bryan’s sup erio r, is not allege d to have been i n v o lved in, or even 2 2
aw a r e of, plai ntif

fs ’ arr es ts or det enti ons bef ore this law sui t wa s fil ed. Plaint iffs have ther efo re fai led to es tabl ish he coul d be held liable in his indi vidual cap acit y. See Jam es , 535 F.3dat 373

.

Plaint iffs argue that cou nty em plo yees did not try hardenough to loca te a judge on 2 3 Sund ay andM onda y af ter noon. They give us no reas on to belie ve this wa s the cas e, and an unsu bst antia ted ass ert ion canno t def eat s u m mar y judgm ent. See TIG Ins. Co. , 276 F.3d at 759. They als o clai m the count y sho uld allow an off icer othe r than th e a r r e st ing off icer to obta in a det erm inati on of pr obable caus e. There is no evide nce the count y doe s not allow othe r off icer s to obtain de ter mi natio ns of pr obable c aus e w hen nece ss ary. De put y Sh erif f Bryan’s fai lure t o a rra nge f

or this is ana lyzed in our dis cus sio n o f qualif iedim mun ity below

. See Mis s. Code Ann. § 9 9

- 3 -17 (“ Every per so n mak ing an arr es t sha ll tak e the 2 4 off ende r bef

ore t he pr ope r off

icer w itho ut unnec es sar y d elay forexam inati on of his c ase .” )

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“Qualified immunity protects offic e rs from suit unless their conduct violate s a clearly established constitutional right.” Once a defendant raises the 2 5 defense of qualified immunity it becomes the plaintiff s ’ b u r d en to show that it does not apply. “The relevant, d i s p o s i t ive inquiry in determining whether a 2 6

r i g h t is clearly established is whether it would be clear to a reasonable o f f i c e r that his conduct was unlawful in the situation he confronted.” 2 7 It i s a r gued 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 don e m o r e a n d 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 e m ployment in order to schedule an appearance before a judge, s e v e r a l hours within the 48-hour window. Bryan’s testimony as t h e a r r e s ting officer was necessary to the determination of probable cause, and he had no way of knowing the county judges would choose t o close their courtrooms early that Monday afternoon or that their doing so was unlawful

. U n der these circumstances, we cannot conclude a reaso n a b le officer would have known he was required to make alterna t i v e arrangements such as skipping his Monday morning shift or preparing a written report to enable another officer to attend the probable cause

Ma ce v. Ci ty of Pal esti ne , 333 F.3d621 , 623 (5t h Cir

. 2003)

. 2 5
Estate of Da vi s v. Ci ty of N. Ri chl and Hi ll s , 406 F.3d375 , 380 (5t h Cir

. 2005)

. 2 6 Lytle v. Bexa r Cnty., Tex

. , 560 F.3d 404, 410 (5t h Cir. 2009) (int erna l quot atio n mar ks 2 7 and cit atio n o mi tte d)

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

determination in his place. Bryan was therefore entitled to summary judgment. 2 8 IV. Jones and Nance also challenge the rejection of their Fourteenth Amendment claims. A pre-trial detain e e m a y 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. 2 9 Wolfish , a conditions of confinement case, arguing that the delay in obtaining 3 0

a probable cause determination a n d i n i t i a l a p p e a r a nce violated their due process rights. Even if we assume the delay constituted a condition of confinement and

a violation of due proces s , p l a i n tiffs’ 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 a l s o 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 t h e y h ad several opportunities to do so. Because plaintiffs failed to show a genuine issue of material fact on this issue, summary judgment was proper.

Altho u g h t h e dis tri ct cour t did not dec ide the clai ms agains t Bryan on the bas is of 2 8 qualif iedim mun ity, t his ar gume nt wa s brie fed by the par tie s below andon ap pea l. Shep her d v. D al la s County , 591 F.3d 445, 452 (5t h Cir. 2009) (cit ing Ha re v. City of 2 9 Cori nth, Mi ss. , 74 F.3d 633, 644–45 (5t h Cir

. 1996) (en banc) ) (int erna l quot atio n mar ks om itt ed)

. 441 U .S

. 520, 536 ( 1979)

. 3 0 9 Case: 10-60941 Document: 00511825649 Page: 9 Date Filed: 04/18/2012No. 10-60941

Plaintiffs’ f

i n a l a r gu m e n t i s t h a t t h e ir 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 t o a corresponding § 1983 violation, unless the ri gh t e n c o m p a s s ed in the state statute is guaranteed under the United States Constitution.” Jones and Nance identify 3 1 two Mississippi statutes they allege contain such a right: Miss. Code Ann. § 99-3- 17 and Miss. Unif. Rule o f C ir. and Cnty. Court Prac. 6.03. These statutes 3 2 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 th e u navailability 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 at t e m pting to fulfill that obligation violated the plaintiffs’ constitutional rights under clearly established law. Bryan is therefore entitled to qualified immunity.

Mo ore v . Ma rke tpla ce Res t., Inc. , 754 F.2d133 6, 1349 (7t h Cir

. 1985)

. 3 1
Plaint iffs als o ide ntif y a thir d st atut e, Mis s. Code Ann. § 19-2 5-67

. This st atut e doe s 3 2 not cre ate a pr ote cte d liber ty inte res t, how ever. Cons equent ly, app ellant s canno t ass ert any Sec tio n 1983 Fourt eent h Ame ndm ent clai ms bas ed on its violat ion. See Me ndoz a v. Bla dgett , 960 F.2d142 5, 1428–29 ( 9th Cir. 199 2). 10 Case: 10-60941 Document: 00511825649 Page: 10 Date Filed: 04/18/2012No. 10-60941 V. We affirm the judgment of the district court.

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