United States Court of Appeals,

Fifth Circuit.

No. 94-60619.

Robert W. BROOKS, Plaintiff-Appellee, Cross Appellant,

v.

GEORGE COUNTY, MS, et al., Defendants,

George County, MS, et al., Defendants-Appellants, Cross Appellees,

Wilbur Ward and Earl Koskela, Defendants-Cross Appellees.

March 14, 1996.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REYNALDO G. GARZA, JOLLY and DUHÉ, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Background

Robert W. Brooks successfully brought claims under the Thirteenth and Fourteenth

Amendments of the United States Constitution for his continued incarceration in a county jail eight

months after the charges against him had been dropped. Eugene Howell, Sheriff of George County,

Mississippi ("Sheriff Howell" or "the Sheriff"), arrested Robert W. Brooks ("Brooks") in Virginia,

where Brooks, who was out on bond, had fled after indictments were returned against him for grand

larceny and felony burglary in Mississippi. Brooks was incarcerated in the George County jail on

January 21, 1991, and was arraigned on the indictments on January 28, 1991.

On or about the same day, Gary Evans, assistant district attorney for the Nineteenth Judicial

Circuit, requested that the charges against Brooks be dismissed pursuant to a nolle prosequi order.

An order granting the district attorney's motion wassigned on February 4, 1991, in Jackson County,

Mississippi, by Judge Clinton E. Lockard. On February 5, 1992, the district attorney's office filed a

copy of the order at the George County Circuit Clerk's office. The order was filed the same date by

an employee of the circuit clerk of George County. Evans apparently informed Brooks' attorney,

William T. Bailey, of the state's intention to seek dismissal prior to making the motion. However,
 

1Examples of work done on private property include construction of a dog pen for Deputy

Sheriff Miller and installation of a fence for Sheriff Howell's sideline fencing business. 

 

2Brooks also raised a number of state law claims that were dismissed without prejudice on

summary judgment. 

neither the Sheriff's office nor Brooks was notified of the dismissal. Brooks was not released until

he discovered and showed the order to Sheriff Howell on October 1, 1991.

In March 1991, during the time period in which he was confined in the George County jail,

Brooks requested and was granted trusty status. Brooks specifically asked that he be made trusty.

As a trusty, Brooks was not locked down in his cell, but was, instead, allowed the freedom to roam

in and out of his cell, Sheriff Howell's office, the jail and the surrounding grounds area.

While incarcerated, Brooks performed, at his own request, various services for Sheriff

Howell, George County and others, including several charitable and benevolent organizations.

Brooks performed these services on public property as well as private property.

1

 Brooks performed

these services for two reasons: (1) he was able to secure his release from jail during the day and (2)

Brooks earned extra money by working on the outside. Brooks was not compensated for those

services he performed on public property, but on several occasions, was paid money or received

goods in exchange for the services he rendered on private property.

Brooks brought an action in the Southern District of Mississippi, Southern Division, on July

1, 1992, against Sheriff Howell and a number of deputy sheriffs of George County; members of the

board of supervisors of George County; Earl Koskela, district attorney for the Nineteenth Judicial

District; Public Defender William T. Bailey; Wilbur G. Ward, circuit clerk of George County; and

other public officialsin their official and individual capacities, as well as George County, pursuant to

42 U.S.C. § 1983.2 Brooks' claims were premised upon alleged violations of the First, Fourth, Fifth,

Sixth, Eighth, Thirteenth, and Fourteenth Amendments as a result of his incarceration after the nolle

prosequiorder had been entered in February 1991. Brooks claimed that he was unlawfully and falsely

incarcerated during this period of time. He also alleged that, while incarcerated, he was forced or

coerced into working on public and private property, amounting to involuntary servitude under the

Thirteenth Amendment. Because he was not always paid for his services, he also claimed a violation
of his due process rights under the Fourteenth Amendment.

On motions for summary judgment, the district court dismissed Brooks' claims of unlawful

incarceration arising fromthe entry ofthe nolle prosequiorder asto all parties. The district court also

held that neither the district attorney nor the clerk were subject to any of Brooks' claimsfor damages.

The remaining parties moved in limine to exclude certain evidence from the trial, notably evidence

of Brooks' status after the entry of the nolle prosequi order. The district court denied the motion.

After a five-day trial, the juryreturned a verdict for Brooks against Sheriff Howell,James Cooper and

GeorgeMiller, deputysheriffs ofGeorgeCounty, andGeorgeCounty(collectively, the "Appellants"),

awarding compensatory damages in the amount of $70,000, $50,000 of which represented damages

concerning Brooks' claim of involuntary servitude under the Thirteenth Amendment and $20,000

representing lost wages in connection with Brooks' due process claims under the Fourteenth

Amendment. In a bifurcated proceeding, the jury awarded punitive damages against Sheriff Howell

and Deputy Miller in their individual capacities in the amount of $5,000 and $500, respectively.

Appellants filed a timelynotice of appeal on September 6, 1994. Brooks filed a cross-appeal

with respect to the district court's granting of partial summary judgment on his claims of unlawful

incarceration and dismissal of all claims against the district attorney and the clerk. We affirm in part

and reverse in part the judgment for Brooks in the manner hereinafter described.

Discussion

Brooks prevailed on his claims under the Thirteenth and Fourteenth Amendments with regard

to his work as a trusty while in the George County jail. Appellants argue that these claims should not

have gone before the jury. We will discuss in turn the merits of each of these constitutional claims

as well asthe unlawful incarceration claims Brookslost on summary judgment and dismissalfromthe

suit of the district attorney and the clerk.

A. Claims Based on Work as a Trusty

1. Thirteenth Amendment—Involuntary Servitude Claim

Brooks alleged that his choice between staying in jail or working when he was not supposed

to be in jail amounted to involuntary servitude. We begin by asking whether the record contained
substantial evidence to create a jury question on involuntary servitude. Boeing v. Shipman, 411 F.2d

365, 375 (5th Cir.1969).

The Thirteenth Amendment to the Constitution provides that "[n]either slavery nor

involuntary servitude, except as punishment for a crime whereof the party shall have been duly

convicted, shall exist within the states or in any place subject to their jurisdiction." U.S. Const.

amend. XIII, § 1. The Fifth Circuit defines involuntary servitude as "an action by the master causing

the servant to have, or to believe he has, no way to avoid continued service or confinement." Watson

v. Graves, 909 F.2d 1549, 1552 (5th Cir.1990). "When the employee has a choice, even though it

is a painful one, there is no involuntary servitude ... A showing of compulsion is thus a prerequisite

to proof of involuntary servitude." Id.

In Watson, this Circuit held that two inmates who requested to work outside ofjailmade such

a choice voluntarily and presented no Thirteenth Amendment claim. Id. at 1552-1553. The prison

context made this choice no less voluntary. Examining the record, we find Brooks' situation to be

similar to that of the inmates in Watson.

The county held Brooks as a pretrial detainee. In that status, Brooks was entitled only to be

confined until trial; the Appellants were under no obligation to allow Brooks the freedom he enjoyed.

Brooks made the request for trusty status. He desired to leave the jail and chose to work as the price

for that right. Since Brooks was not being punished by being detained until trial, the choice between

this confinement and work as a trusty cannot be considered coercive because the benefits he received

for working were not benefitsfor which he was otherwise entitled. Admittedly, the choice described

might have been a painful one, but it was nonetheless a choice.

The district court granted Appellants partial summary judgment on Brooks' claims relating

to unlawful incarceration, absolving Appellants of legal liability. To find the Appellants liable for

involuntary servitude based on a nolle prosequi order which provides no basis for liability under

unlawful incarceration would defy common sense. Like the inmates in Watson, Brooks had a choice,

albeit a painful one. He was, however, not subject to involuntary servitude and thus presented no
 

3Because we hold that Brooks presented no claim for involuntary servitude, we do not address

whether Appellants were qualifiedly immune from liability in their individual capacities or whether

Appellants were liable in their official capacities under the Thirteenth Amendment. We also do

not address whether admission of evidence of Brooks' unlawful incarceration was proper. 

 

4Appellants argue that Brooks never properly made a procedural due process claim for

deprivation of wages under the Fourteenth Amendment. However, Brooks' amended complaint

requested relief under the Fourteenth Amendment and later stated that Sheriff Howell and his

deputies "caused the Plaintiff to suffer ... damages for economic losses in the form of loss of

wages ... for which the Plaintiff is entitled to recover." Not surprisingly, the lower court

recognized this contention as a due process claim for deprivation of wages. Such recognition was

proper. 

 

5The District Court amended its final judgment to include George County as result of the

finding of official capacity liability. 

claim under the Thirteenth Amendment.3

2. Fourteenth Amendment—Procedural Due Process Claim

Brooks claimed that Appellants' failure to compensate him for any of his work on public

property, and their failure to compensate him for part of his work on private property, constituted

a deprivation of propertywithout due process oflaw in violation ofthe FourteenthAmendment.4 The

jury found Sheriff Howell and Deputy Miller liable for the deprivations in their individual capacities;

because the jury found the deprivations to be part of a policy or custom, Sheriff Howell and Deputy

Miller were also liable in their official capacities.5

Appellants raise a number of defenses. They contend that Brooks has not alleged the

deprivation of a cognizable property right, that qualified immunity shields Sheriff Howell and Deputy

Miller fromliability in theirindividual capacities and that no customwas present to give rise to official

liability under Monell. Appellants also maintain that post-deprivation remedies are adequate process

for Brooks because whatever deprivation that allegedly occurred was merely a random and

unauthorized act under the Parratt/Hudson doctrine. For the reasons stated below, we affirm the

judgment holding Sheriff Howell liable in his individual and official capacities on this due process

claim relating to Brooks' work on public property, and reverse that portion of the judgment relating

to Brooks' work on private property. We remand to the district court for further proceedings,

including a retrial, if necessary, to determine the actual damages, and punitive damages, if any, arising

from Sheriff Howell's liability on this claim. We also reverse the judgment against Deputy Miller in
hisindividual and official capacities on this claim relating to Brooks' work on both public and private

property.

a. Brooks' Property Right

Since the United States Constitution does not create property rights, Brooks must be able

to rely on Mississippi law to prove that he has a cognizable property right in wages for work

performed as a pretrial detainee. Garcia v. Reeves County, Texas, 32 F.3d 200, 203 (5th Cir.1994).

Where there is a "legitimate expectation of entitlement," there is a property right. Board of Regents

v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Brooks contended below that Miss.Code Ann. §§ 47-1-13 and 47-1-21 (1972) created a

property right in wages for work on public and private property as a pretrial detainee. Miss.Code

Ann. § 47-1-13 states in relevant part that

Any person being held in the county jail in default of bail to await trial ... may on application

to the sheriff of the county, be allowed to work on ... county public works as other convicts

are worked and at the same wage. The board of supervisors shall settle with prisoners so

working at their regular meetings monthly.

(emphasis added). Miss.Code Ann. § 47-1-21 requires that

[t]he sheriff of each co unty shall keep a well bound alphabetical jail docket. In it he shall

promptly enter under the proper initial the name, age, color and sex of each convict, the date

of his or her commitment, each day worked on the county farm....

The sheriff shall submit his docket to the board of supervisors at each of their regular

meetings, and the same shall be examined carefully by the president of the board, and by any

other members who desire to examine the same, in the presence ofthe board while in session.

The statutes cited by Brooks do not create a legitimate expectation of entitlement to

compensation for work on private property by pretrial detainees. These statutes do not provide for

payments for work on private property. In fact, under Mississippi law, prisoners may only do work

of an "exclusivelypublic character." See Miss.Code Ann. §§ 47-1-19, 47-1-3. We therefore find that

Brooks' failure to receive compensation for his work on private property over and above the

compensation he actually received does not constitute a deprivation of a cognizable property right.

The two provisions quoted above, in our estimation, do create a legitimate expectation of

entitlement to compensation for work on public property by pretrial detainees. These two statutes

provide that a pretrial detainee who is permitted to work on public property must be paid the same
 

6Under Miss.Code Ann. §§ 19-13-27 and 19-13-29, a claimant against a county can present

such claim for unpaid work to the county board of supervisors. "If the board shall reject any such

claim in whole or in part, or refuse when requested at a proper time, to pass thereon, the claimant

may appeal to the Circuit Court, or may bring suit against the county on any such claim." 

Miss.Code Ann. § 19-13-31. 

wages as other prisoners. They place on the sheriff the duty to keep a record of days worked and to

submit that information to the county board of supervisors so that the board can "settle" with the

pretrial detainees at its regular meetings. Our conclusion that these statutes create a cognizable

property right in wages is buttressed by the fact that the state has provided a mechanism whereby

claims against the county can be presented directly to the board of supervisors or in state court.6

Because Mississippi law creates a cognizable property right in wages for a pretrial detainee's work

on public property, Brooks cannot be deprived of that right without due process of law. See Piatt

v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc) ("Because Arizona has established,

by statute, a right of inmates to compensation for work performed for private parties, it cannot deny

[the inmate] that right after he has earned the wages, without affording him due process of the law.")

Sheriff Howell did not keep a record of the days Brooks worked on public property and

failed to present such a record to the board of supervisors at its meetings, precluding the board of

supervisors from paying wages to Brooks. Brooks was thus deprived of wages for the work he

performed on public property as a direct consequence of Sheriff Howell's failure to act in the face of

a clear duty to act under state law. The statutes cited by Brooks, however, do not impose on Deputy

Miller a similar duty. Because the record provides no evidence that Deputy Miller's actions or failure

to act deprived Brooks of wages for the work he performed on public property, we reverse the

judgment holding Deputy Miller liable in his individual or official capacities on this claim.

b. Sheriff Howell's Qualified Immunity

We now consider whether Sheriff Howell is qualifiedly immune fromliability in hisindividual

capacity. Qualified immunity is only available when an official acts "within the scope of [his or her]

discretionary authority." Cronen v. Texas Dept. of Human Services, 977 F.2d 934, 939 (5th

Cir.1992). Mississippi law, as quoted above, imposes on Sheriff Howell a non-discretionary duty to

keep records of work performed by pretrial detainees and to transmit those records to the board of
 

7

See footnote 5 supra (submission of claims against counties). 

supervisors so that pretrial detainees can be paid. Sheriff Howell thus is not entitled to qualified

immunity from individual liability on this due process claim.

c. Official Capacity Liability Under Monell

Brooks'suit against Sheriff Howell in his official capacity istreated as a claimagainst George

County. Hafer v. Melo, 502 U.S. 21, 23-27, 112 S.Ct. 358, 361-362, 116 L.Ed.2d 301 (1991). To

establish liability on the part of George County, Brooks must demonstrate a policy or custom which

caused the alleged constitutional deprivation. Monell v. NewYork City Dept. of Soc. Serv., 436 U.S.

658, 690-92, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Appellants contend no such policy is

present. However, the jury found that the Fourteenth Amendment violations were part of a custom,

policy or practice of the county. This finding has sufficient support in law and fact.

We note that even "a single decision may create municipal liability if that decision were made

by a final policymaker responsible for that activity." Brown v. Bryan County, Oklahoma, 67 F.3d

1174, 1183 (5th Cir.1995) (emphasisin original). Sheriffs in Mississippi are final policymakers with

respect to all law enforcement decisions made within their counties. Huddleston v. Shirley, 787

F.Supp. 109, 112 (N.D.Miss.1992); Miss.Code Ann. § 19-25-1, et seq. Sheriff Howell admitted on

the record that the department kept none of the required records detailing the locations and number

of days prisoners worked. The jury could infer from this statement that the county had a policy of

not keeping such records. Therefore, George County is liable for the ongoing actions of its policy

maker, Sheriff Howell, in depriving Brooks of his property without due process. Turner v. Upton

County, 915 F.2d 133, 137 (5th Cir.1990), cert. denied 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d

850 (1991).

d. Application of the Parratt/Hudson Doctrine

Appellants urge in their defense that no due process violation has been shown because of the

Parratt/Hudson doctrine. Under their version of this doctrine, the mere presence of post-deprivation

remedies prevents a due process claim.7 Such interpretation is blatantly misleading and is not the law.

The Parratt/Hudson doctrine dictates that a state actor's random and unauthorized deprivation of
 

8Brooks appeals the summary judgment for all Cross-Appellees on the Fourth Amendment

claims. Brooks does not appeal the summary judgment against him on his Eighth Amendment

claim or on any of his claims against Public Defender William T. Bailey. Additionally, we note

that Brooks nowhere in his brief questions the partial grant of summary judgment for the George

County Board of Supervisors on immunity grounds, or for the Sheriff or his deputies on the

Fourteenth Amendment claim with regard to deprivation of liberty. Accordingly, we will not

address those portions of the summary judgment, any argument as to their propriety having been

waived by Brooks. 

a plaintiff's property does not result in a violation of procedural due process rights if the state

provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5thCir.1991)

(en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

The Parratt/Hudson doctrine is inapplicable to the facts as shown. The doctrine is meant to

protect the state from liability for failing to provide predeprivation process in situations where it

cannot anticipate the need for such process(when actions are random and unauthorized). Zinermon

v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 984-87, 108 L.Ed.2d 100 (1990). Where a municipal

officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine isinapposite:

actions in accordance with an "official policy" under Monell can hardly be labeled "random and

unauthorized." Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 380 (7th Cir.1988). As this

Court noted, where employees are acting in accord with customary procedures, the "random and

unauthorized" element required for the application ofthe Parratt/Hudson doctrine issimply not met.

Alexander v. Ieyoub, 62 F.3d 709, 713 (5th Cir.1995). Despite Appellants' urging, we see no

application of the Parratt/Hudson doctrine to the facts as presented. Finding no error, we affirm the

judgment holding Sheriff Howell liable in his individual and official capacities on this Fourteenth

Amendment claim relating to Brooks' work on public property. We remand to the district court for

further proceedings, including a retrial, if necessary, to determine the actual damages, and punitive

damages, if any, arising from Sheriff Howell's liability on this claim.

B. Fourth Amendment Claims—Unlawful Seizure

 Brooks cross-appeals the summary judgments against him on his claims based on unlawful

confinement under the Fourth Amendment.8 All defendants were sued in both official and individual
 

9Cross-Appellees on the Fourth Amendment claim are George County, Sheriff Howell, his

three deputies, the George County Board of Supervisors, District Attorney Earl Koskela and

Circuit Clerk Wilbur G. Ward. 

capacities under 42 U.S.C. § 1983. We review de novo the district court's decision to grant summary

judgment in favor of Appellants. For the reasons discussed below, we affirm the grant of summary

judgment against Brooks.

Brooks arguesthat his continued incarceration after the nolle prosequi order was a violation

of the Fourth Amendment. The court granted summary judgment in favor of all Cross-Appellees.9

As the lower court noted, Fourth Amendment claims are appropriate when the complaint contests

the method or basis of the arrest and seizure of a person. Yet Brooks did not challenge his arrest,

which was made pursuant to a valid capias, as a violation of the Fourth Amendment, but challenged

only his continued incarceration.

We reference our decision in Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir.), cert.

denied --- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993), by analogy, for the proposition that

once the incidents of a valid arrest have long since been completed and the pretrial detainee remains

in detention, the Fourth Amendment no longer applies when t he challenge is solely to continued

incarceration. In Valencia, this Circuit held that neither the Unreasonable Search and Seizure Clause

of the Fourth Amendment nor the Cruel and Unusual Punishment Clause of the Eighth Amendment

is applicable in determining whether a detention official's use of deliberate force was excessive. Id.

The Due Process Clause of the Fifth and Fourteenth Amendments are the appropriate constitutional

provisions for this determination. Id.

As the Court stated,

We do not believe that the Fourth Amendment provides an appropriate constitutional basis

for protecting against deliberate official uses of force occurring, as in this case, after the

incidents of arrest are completed, after the plaintiff has been released from the arresting

officer's custody and after the plaintiff has been in det ention awaiting trial for a significant

period of time.... As the Fourth Amendment protects against unreasonable "seizures," it

seems primarily directed to the initial act of restraining an individual's liberty, such as an

investigatory stop or arrest.

Id. at 1443-1444.

The logic of Valencia applies to the instant case. The Fourth Amendment is inapplicable to
 

10Brooks' brief does not address his arrest but we do so here to show the lack of basis for

Brooks' Fourth Amendment claim. Brooks was arrested in Virginia pursuant to a notice placed

with the National Criminal Information Center (NCIC) after an affidavit was presented against

him for grand larceny. Brooks waived extradition and was returned to Mississippi by Sheriff

Howell on January 21, 1991. He was served with the capias for indictments issued in October,

1990 for cause numbers 3657 and 3658. He appeared before the judge for his initial appearance

on these charges on January 28, 1991 and pled not guilty. NCIC printouts provide a reliable basis

for probable cause to arrest. U.S. v. McDonald, 606 F.2d 552, 552-54 (5th Cir.1979). 

Therefore, there is no support for Brooks' claim that his arrest violated the Fourth Amendment

guarantees against unreasonable searches and seizures. 

 

11As we agree with the District Court that Brooks presented no Fourth Amendment claim, we

do not reach the arguments on immunity and level of conduct advanced at length by

cross-appellees on this claim. 

 

12This immunity analysis applies to Koskela's and Ward's potential liability under any of

Brooks' claims. Because we have already shown above that Brooks' claims under the Fourth and

Thirteenth Amendments were without merit, however, this immunity analysis is germane only to

Brooks' claim under the Fourteenth Amendment for deprivation of liberty. 

a pretrial detainee who was properly arrested and is awaiting trial. That detainee has recourse to due

process protections, not protection against unreasonable seizures after a lawfulseizure has occurred.

Since Brooks has shown no defect in his actual arrest, he has made no claim under the Fourth

Amendment.10 We affirm the summary judgment for the Cross-Appellees on Brooks' Fourth

Amendment claims.11

C. Dismissal of Claims Against the D.A. and the Clerk

Brooks also challenges the lower court's holding that District Attorney Koskela and Circuit

Clerk Ward were not subject to suit on any of the constitutional claims discussed above.12 As with

the Fourth Amendment claim above, we hold that the district court properly granted summary

judgment.

1. The District Attorney

Brooks' claims against Earl Koskela, the George County District Attorney, stem from

Koskela's failure to provide a copy of the nolle prosequi motion to opposing counsel. Mississippi

Uniform Circuit Court Rule 2.01 (1994) required that "[a] copy of all subsequent pleadings and

motions, including motions for a new trial, shall be delivered in person or by mail to opposing
 

13This rule has been amended and recodified as Uniform Circuit and County Court Rule 2.06,

Service of Copies and Certificate of Service. 

 

14Mr. Bailey claimed that he no longer represented Brooks at the time of the nolle prosequi

order. However, we agree with the district court that Bailey was still Brooks' attorney for the

purposes of establishing notice of the order. Bailey, assigned to represent indigent defendants

such as Brooks, never received court permission to withdraw from representation of Brooks as

required under Rule 1.05 of the Uniform Criminal Rules of Circuit Court Practice (1994). Bailey

signed a document acknowledging receipt of discovery from the State on behalf of Brooks. 

Brooks himself advised the court at the arraignment on January 28, 1991 that he had an attorney. 

At roughly the same time, the government gave its notice to Bailey that the case would not

proceed. It is not surprising that all involved except for Bailey himself believed that Bailey was

Brooks' lawyer. Thus, the district court properly concluded that "Bailey, in his capacity as public

defender, was acting as Brooks' attorney for the duration of the case." 

counsel...."13 Brooks contends that the district attorney's office, through Gary S. Evans, assistant

district attorney, violated this rule, leading to his unconstitutional imprisonment for eight months.

At the summary judgment phase, the district court dismissed all claims against Koskela in his

individual capacity on the basis of prosecutorial immunity and in his official capacity under the

Eleventh Amendment on the basis of his status as a state official in Mississippi. We find summary

judgment appropriate in this context.

This Court is uncertain whether Brooks has even alleged a violation of Rule 2.01. Mr. Evans

merely prepared an order of dismissal for the state trial court after acknowledging in open court that

the case would not proceed. The district attorney's office had no duty under Rule 2.01 or, as far as

we can discern, under any Mississippi law, to provide copies of the court's orders to opposing

counsel.

 Even if one assumed that the procedure resulting in a court order amounted to a "motion,"

Mr. Evans provided notice on or about January 28 or 29, 1991, of the government'sintention to seek

dismissal to Mr. Brooks' attorney, William T. Bailey, prior to the open court procedure.14 Thus we

are not convinced that if the nolle prosequi procedure was subject to Rule 2.01's requirements that

the district attorney's office even violated the rule.

Assuming arguendo that the district attorney violated Rule 2.01, we agree with the lower

court that Koskela was nonetheless immune from such suit in his official and individual capacities.

The district attorney is considered a state officialinMississippi, asthe office is primarily state-funded,
 

15Holding that the district attorney is protected by absolute immunity in both official and

individual capacities, we do not reach the issue of Cross-Appellees' qualified immunity. 

and the district attorney has the power to represent the state in all judicial proceedings. Chrissy F.

by Medley v. Mississippi Dep't of Public Welfare, 925 F.2d 844, 849 (5th Cir.1991). As a state

actor, the district attorney is shielded in his official capacity by Eleventh Amendment immunity. Id.

No suit against Koskela in his official capacity can be maintained.

 Koskela is also immune from suit in his individual capacity. Immunity is sustained for acts

taken in furtherance of the prosecution of the case; acts which are investigative or administrative do

not carry absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d

128 (1976). Immunity is gauged by the functional activities the prosecutor engaged in and not the

status of the defendant. Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119, 75 L.Ed.2d 96

(1983). Actions which are related to the judicial process fulfill the prosecutor's "advocatory" function

and are considered absolutely immune fromsuit. See Marrero v. City of Hialeah, 625 F.2d 499, 505

(5th Cir.1980), cert. denied 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981).

In our estimation, the prosecutor's actsthrough his assistant ofrequesting that the court enter

an order of nolle prosequi of Brooks' criminal charges, of having an order prepared for the court that

memorialized the same, and the forwarding of such order to the clerk for filing are all prosecutorial

activities "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S.

at 430, 96 S.Ct. at 995 (emphasis added). The mere fact that the district attorney's office prepared

the court's order for it and forwarded the order does not remove these acts from being intimately

associated with the judicial process. Accordingly, we affirm the District Court's holding that Mr.

Koskela is immune from suit under 42 U.S.C. § 1983 in both official and individual capacities on all

claims brought by Mr. Brooks.15

2. The Circuit Clerk of George County

Wilbur G. Ward was the Circuit Clerk for George County at the time of the incidents which

are the subject of this lawsuit. The record indicates that the order of nolle prosequi was filed by

Angela Cooper, over the file stamp which indicated that Wilbur Ward wasthe Circuit Clerk. Brooks
 

16Brooks makes much of the fact that Ward held the position of Circuit Court Administrator of

George County. The Court Administrator performs nonjudicial tasks of the court, serves as a

liaison to the general public, and provides administrative support for all judges of the district. 

Miss.Code Ann. § 9-17-2 (1972). We find Brooks' reference to this fact deceptive. Appellants

wisely advert to the fact Ward did not become Administrator until July, 1992, almost ten months

after Brooks was released from jail. Ward's appointment to this position after Brooks' release is

hardly relevant to the question of whether Ward was the court's policy maker at the time of

Brooks' incarceration. 

 

17E.g., Miss.Code Ann. § 9-7-171 (1972) (duty of circuit clerk to keep a "general docket"); 

Miss.Code Ann. § 9-7-175 (1972) (duty to keep a "criminal docket"); Miss.Code Ann. § 9-7-177

alleges that Ward created a policy which had the effect of depriving him of the right to be free from

unnecessary restraint by failing to send court orders o f dismissal of charges to the defendant in a

criminal prosecution, or to his counsel, and failing to adopt a policy for the George County Clerk's

office of sending orders. The district court granted summary judgment in favor of Wilbur G. Ward,

circuit clerk of George County, Mississippi (the "clerk"), based on the fact that the judge, not the

clerk, wasthe final policymaker ofthe circuit county systemin George Countywith regard to the acts

alleged by Brooks. We agree.

Under Mississippi law, the judge is the ultimate authority for the supervision of the court in

hisjurisdiction. As the Mississippi Supreme Court stated, "Although the clerk performs the physical

act of record keeping, the judge is ultimately responsible for the administration of his court." In re

Collins, 524 So.2d 553, 555 (Miss.1987). Only those officials who have "final policymaking

authority" may by their actions subject the government to liability under 42 U.S.C. § 1983. Bryan

Cty., 67 F.3d at 1182. Accordingly, Ward cannot be liable for failing to establish a policy of sending

ordersto partiesin a criminal proceeding because he was not the policymaker for the George County

Circuit Court System.16

We also note that nowhere has Brooks shown that circuit clerks have an affirmative duty

under Mississippi law to provide the sheriffs of the state, or counsel for criminal defendants, or

criminal defendants pro se, with copies of orders or pleadingsfiled in criminal cases. Nor has Brooks

shown an affirmative duty to notify sheriffs, counsel or defendants of the filing and entry of orders

and pleadings in criminal cases. The circuit clerks merely have a duty to file and docket all papers

filed in each court case.17
(1972) (duty to keep an "appearance docket"). 

 

18Because we hold that the circuit clerk was not a policymaker and did not violate any duty,

we do not reach the issue of the clerk's qualified immunity. 

Since "no duty to act existed, the failure to act did not violate the constitution." Salas v.

Carpenter, 980 F.2d 299, 307 (5th Cir.1992).18 While it is unfortunate that Brooks languished in the

county jail, we can find no duty violated by the clerk to impose liability for the loss. The district court

properly granted summary judgment on this issue.

Conclusion

Libertas inestimabilis res est. The spirit of this adage is that one can place no price on

freedom. Brooks fell through the cracks of a modern bureaucratic labyrinth, resulting in eight months

of mistaken confinement. Nevertheless, we are unable to provide a remedy under 42 U.S.C. § 1983

to Brooks for this mistaken confinement. Brooks is entitled to a remedy, however, for the

deprivation of his property—the wages earned as a pretrialdetainee on public property—without due

process of law. Nothing will shield Sheriff Howell or George County from liability for Sheriff

Howell'sfailure to keep, and submit to the board ofsupervisorsfor payment, records ofBrooks'work

on public property as a pretrial detainee.

Holding that Brooks' involuntary servitude claim is without merit under the Thirteenth

Amendment, we VACATE the judgments ofthe court below andRENDERjudgment for Appellants.

We also VACATE the judgment of the court below and RENDER judgment for Deputy Miller in

both hisindividual and official capacities onBrooks' Fourteenth Amendment deprivation of property

claim. We AFFIRM the judgment holding Sheriff Howell liable in his individual and official capacities

under the Fourteenth Amendment for deprivation of property solely asit relatesto Brooks' claim for

wages for work on public property. However, we REMAND to the district court for further

proceedings, including a retrial, if necessary, to determine the actual damages, and punitive damages,

if any, arising from Sheriff Howell's liability for depriving Brooks of wages for his work on public

property. We also AFFIRM the district court's summary judgment for all Cross-Appellees on

Brooks's constitutionalclaimsregarding unlawfulincarcerationand for District AttorneyKoskela and
Circuit Clerk Ward on the dismissal of all claims against them.