IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60242

CHARLES C. BOSARGE, 

 Plaintiff - Appellee

v.

MISSISSIPPI BUREAU OF NARCOTICS; CAL REYNOLDS; ERIC 

FULTON, 

 Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Charles C. Bosarge sued the Mississippi Bureau of Narcotics and two

state agents under 42 U.S.C. § 1983 and Mississippi state law. He alleged that 

the agents falsely identified him as a participant in a drug ring and caused him 

to be unlawfully detained for six months. The district court denied the

Defendants’ motion requesting judgment on the pleadings or summary 

judgment on the basis of qualified or absolute immunity. On interlocutory 

appeal, we hold that the district court erred in denying the Defendants’ motion 

for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). 

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2015

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

On June 16, 2009, a federal grand jury indicted Charles C. Bosarge (a/k/a 

“Smooth”) and eighteen others. The defendants were charged with conspiracy 

to possess with intent to distribute methamphetamine in violation of 21 U.S.C. 

§§ 841(a)(1), 846. Bosarge was subsequently arrested and detained for six

months. In December 2009, six weeks before a scheduled trial, the District 

Court for the Southern District of Mississippi dismissed Bosarge from the 

indictment without prejudice, pursuant to the government’s motion.

In his § 1983 lawsuit, Bosarge claimed that he “was prosecuted, arrested, 

and detained without probable cause and without due process of law, in 

violation of the Fourth and Fourteenth Amendments.” He alleged that 

Defendants Eric Fulton and Kyle Reynolds,1 agents with the Mississippi 

Bureau of Narcotics, caused these violations by intentionally or recklessly 

misidentifying him as the person they viewed participating in a drug 

transaction. In addition, Bosarge sought to hold the agents and the Mississippi 

Bureau of Narcotics liable for the state law torts of false arrest, false 

imprisonment, and malicious prosecution, and for violations of unnamed 

provisions of the Mississippi Constitution.

Bosarge’s pleadings alleged the following facts. Fulton and Reynolds, 

relying in part on wiretapped cell phone conversations, planned to observe a 

drug deal between a man named Timothy Isom and another suspect in a Best 

Buy parking lot in Hattiesburg, Mississippi, on November 21, 2008. After 

witnessing the drug deal, Fulton and Reynolds identified Bosarge as the second 

suspect, and “[t]his information was either provided directly to federal officials 

by Defendants Reynolds and Fulton, or was provided to federal officials by 

other state agents who did so on the basis of claims by Defendants Reynolds 

 

1 The original complaint erroneously spelled Reynolds’s first name as “Cal.” 

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and Fulton that it was true.” However, Bosarge alleged that he was not the 

person in the Best Buy parking lot. He claimed that the agents “acted

intentionally or recklessly in falsely identifying” him, and that they “knew or 

should have known that their identification of [him] was false.” Bosarge alleged

that the agents identified him to reinforce a previously-formed conclusion that 

the man who met with Isom at the Best Buy was named Charles Bosarge. The 

agents reached that conclusion because the license plate of the second suspect’s

car was registered to a woman named Mindi Bosarge, and Mindi Bosarge’s 

father or brother, Charles Bosarge, owned the cell phone used to communicate 

with Isom. Mindi Bosarge’s father or brother, Charles Bosarge, is a different 

person than the Plaintiff. While Bosarge (the Plaintiff) acknowledged that 

Fulton and Reynolds stated in affidavits that they “did not know the name of 

the Plaintiff prior to selecting his photograph as the person they saw at the 

Best Buy parking lot,” Bosarge claimed that “those affidavits are not

necessarily accurate.” 

Bosarge alleged that at the time of the meeting with Isom, he was 

working a 12-hour shift on a shrimp boat. He claimed that the person who 

participated in the drug deal with Isom was named Randall Eric Tillman.

According to Bosarge, the agents “knew before the Best Buy surveillance that 

the person who was talking with Isom” on the cell phone “went by the 

nickname ‘Smooth,’” which is the “same nickname used by Randall Eric 

Tillman.” Bosarge alleged that Isom later identified the second person in the 

Best Buy parking lot as someone other than Bosarge. Bosarge alleged that that

person, “whether Tillman or someone else,” “does not look enough like the 

Plaintiff so that the Plaintiff could be reasonably mistaken for him.” 

Bosarge claimed that “[a]s a result of this false identification, federal 

prosecutors included Plaintiff in their request for an indictment.” Bosarge 

further alleged that Fulton “repeated the false identification” before the grand 

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jury, and that “no other evidence implicating the Plaintiff was presented to the 

grand jury.” After Bosarge’s indictment and subsequent arrest, Reynolds

testified as to the identification in an initial detention hearing in Mobile, 

Alabama, at which “[n]o other evidence was presented linking Plaintiff to this 

[drug] ring.” At a second detention hearing in Hattiesburg, Mississippi, the 

identification by Fulton and Reynolds was “used as a ground for continuing to 

detain” Bosarge.

Bosarge stressed that his lawsuit is “based on the false identification” 

that the Defendants provided to state or federal officials, and “not based on 

Agent Fulton’s testimony to the grand jury, Agent Reynolds’[s] testimony at 

the detention hearing in Mobile, the use of their prior testimony at the 

detention hearing in Hattiesburg, or their preparation to testify at any of these 

hearings.” Bosarge further alleged that “the Defendant agents’ false testimony 

at those proceedings taints them so that those events do not break the chain of 

causation.” 

Bosarge originally filed his complaint in the Circuit Court of Hinds 

County, Mississippi, against the Mississippi Bureau of Narcotics, Fulton, 

Reynolds, and John Does 1-10. The Defendants removed the case to federal 

court on the basis of federal question jurisdiction and supplemental 

jurisdiction. See 28 U.S.C. §§ 1331, 1367.2 The Defendants raised a number of 

affirmative defenses, including absolute and qualified immunity. The district 

court directed Bosarge to file a reply under Federal Rule of Civil Procedure 7(a) 

 

2 We question, but need not resolve, the Defendants’ claim that we also have diversity 

jurisdiction under 28 U.S.C. § 1332. See Frazier v. Pioneer Americas LLC, 455 F.3d 542, 547 

(5th Cir. 2006) (“[I]t is long-settled that a state has no citizenship for § 1332(a) diversity 

purposes.”); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806) (“[E]ach of the

plaintiffs must be capable of suing each of the defendants.”).

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“alleging with particularity the specific facts which, if true, would overcome 

the qualified immunity defenses raised by Defendants.” The district court also 

stayed all discovery. 

After Bosarge filed his Rule 7(a) reply, the Defendants filed a “motion for 

judgment on the pleadings or, alternatively, [] summary judgment.” The 

Defendants argued that Bosarge’s pleadings are insufficient to state a claim 

under either federal or state law because he “offers no factual detail concerning 

how [the agents’] alleged error was the product of malice, intent, or 

recklessness.” The Defendants further argued that even if the pleadings 

sufficiently alleged constitutional violations, three “breaks in the causal chain” 

insulated the agents from liability: the grand jury’s finding of probable cause, 

the detention proceeding in Mobile, and the detention proceeding in 

Hattiesburg. Finally, the Defendants argued that the Mississippi Tort Claims 

Act immunizes them from suit for violations of state law. In the alternative, 

the Defendants argued that they are entitled to summary judgment under 

Federal Rule of Civil Procedure 56 on the basis of affidavits by Fulton and 

Reynolds, which were attached to the motion. These affidavits described the 

agents’ surveillance at the Best Buy parking lot in November 2008 and their 

subsequent, independent identifications of Bosarge from a number of 

photographs of potential suspects. Bosarge later filed an amended complaint, 

which incorporated facts from the agents’ affidavits. The Defendants filed an 

answer realleging the same immunity defenses as in their first answer, and 

they filed a second motion for judgment on the pleadings or summary 

judgment. In the second motion, the Defendants raised the same arguments as 

they had in the first, and they further argued that the agents were entitled to

absolute immunity under a recent Supreme Court case, Rehberg v. Paulk, 132 

S. Ct. 1497 (2012). The district court held a hearing on the Defendants’ motion 

before issuing an oral ruling denying the motion. The district court found that 

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Bosarge had “pled a claim that entitles him to discovery,” and that the 

Defendants were not entitled to qualified or absolute immunity. The district 

court did not expressly consider the state law claims, and it did not issue a 

written opinion. The Defendants timely appealed.

JURISDICTION

The denial of qualified or absolute immunity, “to the extent that it turns 

on an issue of law,” is a “final decision” that may be immediately appealed as 

a collateral order. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Palmer 

v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999). That denial is appealable

“whether the ruling occurs at the pleadings stage or at summary judgment.” 

Johnson v. Johnson, 385 F.3d 503, 528 (5th Cir. 2004). The Supreme Court has 

held that appeals courts, in reviewing the denial of a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified immunity, 

have “jurisdiction to pass on the sufficiency of [the] pleadings,” which is an 

“issue of law” that “is both inextricably intertwined with, and directly 

implicated by, the qualified immunity defense.” Ashcroft v. Iqbal, 556 U.S. 662, 

672–73 (2009) (internal quotation marks and citations omitted). Given that 

“[t]he standard for dismissal under Rule 12(c) is the same as that for dismissal 

for failure to state a claim under Rule 12(b)(6),” Johnson, 385 F.3d at 529, 

courts reviewing denials of Rule 12(c) motions on immunity grounds also have 

jurisdiction, under Iqbal, to review the sufficiency of the pleadings. 

The Defendants also appeal the denial of their claim that the Mississippi 

Tort Claims Act (“MTCA”) and state common law immunize them from suit for 

violations of state law. Our court has held that “an order denying qualified 

immunity under state law is immediately appealable as a ‘final decision,’ 

provided that ‘the state’s doctrine of qualified immunity, like the federal 

doctrine, provides a true immunity from suit and not a simple defense to 

liability.’” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (quoting Sorey v. 

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Kellett, 849 F.2d 960, 962 (5th Cir. 1988)). “[T]he MTCA contemplates 

immunity from both liability and judicial proceedings.” Hinds Cnty. v. Perkins, 

64 So. 3d 982, 986 (Miss. 2011) (emphasis added); see also Lampton v. Diaz, 

661 F.3d 897, 899 (5th Cir. 2011) (per curiam) (“The denial of immunity under 

Mississippi law, like a denial under federal law, is appealable under the 

collateral order doctrine.”). We may therefore review, as a final decision, the 

district court’s denial of immunity to the Defendants with respect to Bosarge’s 

state law claims.

STANDARD OF REVIEW

The district court’s denial of a Rule 12(c) motion for judgment on the 

pleadings is reviewed de novo. Johnson, 385 F.3d at 529. As noted, “[t]he 

standard for dismissal under Rule 12(c) is the same as that for dismissal for 

failure to state a claim under Rule 12(b)(6).” Id. “To survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, 

to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 

(internal quotation marks and citation omitted). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of 

the elements of a cause of action will not do.’ Nor does a complaint suffice if it 

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)); see also 

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (“[A] plaintiff seeking to 

overcome qualified immunity must plead specific facts that both allow the 

court to draw the reasonable inference that the defendant is liable for the harm 

he has alleged and that defeat a qualified immunity defense with equal 

specificity.”). We will “accept all well-pleaded facts as true, viewing them in the 

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light most favorable to the plaintiff.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 

816 (5th Cir. 2012) (internal quotation marks, citation, and alteration omitted).

In considering a motion for judgment on the pleadings under Rule 12(c), 

the court is generally limited to “the contents of the pleadings, including 

attachments thereto.” Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 

748 F.3d 631, 635 (5th Cir. 2014) (internal quotation marks and citation 

omitted) (considering a Rule 12(b)(6) motion); Fed. R. Civ. P. 12(d) (applying 

the same standard to consideration of matters outside the pleadings in both 

the Rule 12(c) and Rule 12(b)(6) contexts). The “pleadings” include the 

complaint, answer to the complaint, and “if the court orders one, a reply to an 

answer.” Fed. R. Civ. P. 7(a). However, we agree with Bosarge that we should 

evaluate his claims with reference to his amended complaint, which supersedes 

his earlier pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“An 

amended complaint supersedes the original complaint and renders it of no 

legal effect unless the amended complaint specifically refers to and adopts or 

incorporates by reference the earlier pleading.”).

We must decide whether, and in what manner, to consider the agents’ 

affidavits, which were attached to the Defendants’ original motion and were 

incorporated by reference into their second motion. The district court never 

ruled on Bosarge’s motion to strike these affidavits,3 and it is unclear whether 

the district court considered the affidavits in denying the Defendants’ motion 

for judgment on the pleadings or for summary judgment. We have held that 

“[d]ocuments that a defendant attaches to a motion to dismiss are considered 

part of the pleadings if they are referred to in the plaintiff’s complaint and are 

central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 

 

3 The district court treated that motion as moot after granting Bosarge’s motion for 

leave to file an amended complaint. 

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288 (5th Cir. 2004). Given the similarities in the analyses under Rule 12(c) and 

Rule 12(b)(6), we will apply the same rule to documents attached to the 

Defendants’ motion for judgment on the pleadings. See Horsley v. Feldt, 304 

F.3d 1125, 1134 (11th Cir. 2002).

Bosarge’s amended complaint borrows a number of facts from the agents’ 

affidavits, while disputing other claims made in these affidavits. The 

Defendants argue that Bosarge, by relying on these affidavits, “has elected to 

incorporate” them into his amended complaint. Bosarge counters that “[w]hile 

the amended complaint refers to various portions of the affidavits, it never 

‘incorporates’ them.” Because the amended complaint relies substantially on 

the affidavits, we believe these affidavits should be considered as part of the 

pleadings, such that the motion need not be treated as one for summary 

judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 

12(c), matters outside the pleadings are presented to and not excluded by the 

court, the motion must be treated as one for summary judgment under Rule 

56.”).4 However, while the affidavits may be considered as an aid to evaluating 

the pleadings, they should not control to the extent that they conflict with 

Bosarge’s allegations. We distinguish these affidavits from contracts and 

medical records attached to a complaint, which we have held generally trump 

contradictory allegations in the complaint. See, e.g., United States ex rel. Riley 

v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004); Nishimatsu 

Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Accepting 

 

4 Given that the Defendants opposed discovery throughout the proceedings below, and 

the district court stayed discovery, it would be inequitable for our court to treat the 

Defendants’ motion as one for summary judgment. See Benchmark Elecs., Inc. v. J.M. Huber 

Corp., 343 F.3d 719, 726 (5th Cir.) (holding that the district court plainly erred in treating 

the defendant’s motion for judgment on the pleadings as a motion for summary judgment 

without allowing discovery, noting that the plaintiff was “deprived of a full and fair 

opportunity to defend against summary judgment”), modified on other grounds on denial of 

reh’g by 355 F.3d 356 (5th Cir. 2003). 

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the Defendant-agents’ unilateral statements as true would deprive Bosarge of 

the presumption of truth to which he is entitled at this stage of the litigation. 

See N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 

455–56 (7th Cir. 1998) (noting that while a “blanket adoption rule makes sense 

in the context of an attached contract” or other binding agreement, it “would 

be contrary to the concept of notice pleading” to apply such a rule “in the case 

of letters written by the opposition for what could be self-serving purposes”); 

see also Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 441–42 (6th Cir. 2012) 

(refusing to accept as true all findings contained in a European Commission 

decision, attached to a motion to dismiss, but rather allowing the plaintiff to 

“draw facts from the . . . decision to provide a ‘starting point’ and then use those 

facts to construct a theory that differs from or even contradicts that of the 

[European Commission]”); Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537 (5th 

Cir. 2003) (suggesting that even where a document attached to a motion to 

dismiss is incorporated into the pleadings, the district court still must 

“construe the plaintiffs’ factual allegations in the light most favorable to the 

plaintiffs”). We therefore do not accept as true all allegations in the agents’ 

affidavits, but rather consider these affidavits to better understand Bosarge’s 

amended complaint, while ensuring that Bosarge does not misrepresent the 

agents’ statements. 

I. Federal Law Claims 

To evaluate the Defendants’ argument that Bosarge’s amended 

complaint is insufficient, we begin by considering the legal principles that 

govern this case. See Iqbal, 556 U.S. at 675. To overcome the qualified 

immunity defense, Bosarge must plead that the agents violated a clearly 

established statutory or constitutional right of which a reasonable person 

would have known. See Pearson v. Callahan, 555 U.S. 223, 231–32 (2009). 

Bosarge alleged that the agents violated his Fourth and Fourteenth 

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Amendment rights by causing him to be prosecuted, arrested, and detained 

without probable cause and without due process of law. First, we find that 

Bosarge’s allegation that he was “prosecuted . . . without probable cause” fails 

to state a claim because our court has held that “no . . . freestanding 

constitutional right to be free from malicious prosecution exists.” Castellano v. 

Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). In addition, although the

Fourteenth Amendment is relevant because it applies the Fourth Amendment

to the states, Bosarge’s claims of unlawful arrest and detention should be 

analyzed under the Fourth Amendment and not under the Fourteenth 

Amendment’s Due Process Clause. See Cuadra v. Hous. Indep. Sch. Dist., 626 

F.3d 808, 814 (5th Cir. 2010) (“Cuadra’s Fourteenth Amendment claims are 

based on alleged pretrial deprivations of his constitutional rights and, under 

the holding in Albright, such claims should be brought under the Fourth 

Amendment.”) (citing Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality 

opinion)); Blackwell v. Barton, 34 F.3d 298, 302 (5th Cir. 1994) (holding that 

while the plaintiff alleged that her arrest and detention violated both the 

Fourth and Fourteenth Amendments, her claim was “properly considered 

under the Fourth Amendment, the more specific constitutional right 

implicated by her allegations”); see also Castellano, 352 F.3d at 953 (“The 

initiation of criminal charges without probable cause may set in force events 

that run afoul of explicit constitutional protection—the Fourth Amendment if 

the accused is seized and arrested, for example . . . .”).

Clearly established Fourth Amendment law at the time of the agents’ 

conduct provided that an arrest must be based on probable cause. See, e.g.,

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009). Probable cause 

exists when “the facts and circumstances within the officer’s knowledge . . . are 

sufficient to warrant a prudent person, or one of reasonable caution, in 

believing, in the circumstances shown, that the suspect has committed, is 

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committing, or is about to commit an offense.” Id. at 204 (internal quotation 

marks and citations omitted). Although generally “a grand jury 

indictment . . . itself establishes probable cause,” Campbell v. City of San 

Antonio, 43 F.3d 973, 976 (5th Cir. 1995), we here examine the alleged preindictment events because Bosarge claims that the grand jury proceedings 

were tainted by Fulton’s misrepresentations. See McAllister v. Desoto Cnty., 

Miss., 470 F. App’x 313, 319 n.4 (5th Cir. 2012) (per curiam).5 Important here 

is the well-established rule that reasonable mistakes by police officers, even 

leading to the arrest of the wrong person, do not implicate the Fourth 

Amendment. See Heien v. North Carolina, 135 S. Ct. 530, 536, 539 (2014)

(noting that the Fourth Amendment tolerates objectively reasonable 

mistakes); Blackwell, 34 F.3d at 304 (holding that an officer could not be held 

liable under § 1983 for a Fourth Amendment violation for arresting the wrong 

person, pursuant to a valid warrant, where “no inference can be drawn that 

[the officer] knew or believed he was or likely was arresting someone other 

than” the person named in the warrant); see also McAllister, 470 F. App’x at

319–20 (holding that officers who erroneously added the plaintiff’s information 

to a suspect’s case file did not violate the Fourth Amendment, noting that the 

officers’ conduct was “objectively reasonable,” and that there was no evidence 

that they acted “intentionally or maliciously”).

With these principles in mind, we now consider the sufficiency of

Bosarge’s amended complaint. We first identify the allegations that are not 

entitled to the assumption of truth. See Iqbal, 556 U.S. at 680. We will not 

assume the truth of Bosarge’s claim that the officers “acted intentionally or 

 

5 Because we ultimately find that Bosarge has not adequately alleged that a Fourth 

Amendment violation occurred, we need not consider the Defendants’ argument that the 

grand jury and detention proceedings break the causal chain between the agents’ conduct 

and any subsequent violation. See Cuadra, 626 F.3d at 813. 

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recklessly in falsely identifying” him as the person whom they witnessed 

meeting with Isom in the Best Buy parking lot. The Supreme Court and our 

court have found similar claims to be too conclusory to survive a motion to 

dismiss without further allegations. See id. at 680–81 (declining to assume the 

truth of the conclusory allegation that petitioners “‘knew of, condoned, and 

willfully and maliciously agreed to subject [respondent]’ to harsh conditions of 

confinement ‘as a matter of policy, solely on account of [his] religion, race, 

and/or national origin and for no legitimate penological interest’” (second 

alteration in original) (citation omitted)); Morin v. Caire, 77 F.3d 116, 121 (5th 

Cir. 1996) (dismissal proper where the complaint alleged that an officer “‘knew, 

or should have known, that the statements of [a witness] were false,’ without 

pleading factual allegations indicating that [the] statement[s] are indeed false, 

or facts indicating that no reasonable police officer would have believed [the] 

statement[s]”). We also will not assume the truth of Bosarge’s bare assertion 

that the officers identified his photograph simply to reinforce their previouslyformed conclusion that the suspect was named Charles Bosarge. See PeñalbertRosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir. 2011) (“[S]ome allegations, 

while not stating ultimate legal conclusions, are nevertheless so threadbare or 

speculative that they fail to cross ‘the line between the conclusory and the 

factual.’” (quoting Twombly, 550 U.S. at 557 n.5)). 

We next consider Bosarge’s well-pleaded factual allegations to determine 

if they plausibly support his claim of an intentional or reckless 

misidentification. See Iqbal, 556 U.S. at 681. Bosarge raises a plausible 

inference that the identification was erroneous: he alleged that he was not the 

suspect in the Best Buy parking lot, that Isom identified another person as 

that suspect, and that the charges against him were dismissed. However, not 

all mistakes are reckless or intentional. The agents’ knowledge that

individuals named Mindi and Charles Bosarge were connected to the drug deal 

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does not alone suggest that the agents identified Bosarge simply to reinforce a 

previously-formed conclusion. In addition, Bosarge did not expressly allege 

that the Defendants knew, before the photographic identification, that the 

person in the photograph was named Charles Bosarge.

Bosarge’s counsel acknowledged at oral argument that his pleadings 

hinge on the allegation that the man identified by Isom, “whether Tillman or 

someone else,” “does not look enough like the Plaintiff so that the Plaintiff 

could be reasonably mistaken for him.” While we accept as true Bosarge’s claim 

of a difference in appearance, Bosarge’s characterization of the identification 

as unreasonable is a conclusion not entitled to the presumption of truth. See 

id. at 680. In addition, without further allegations regarding the dissimilarities 

between Bosarge and the man Isom identified, Bosarge has not plausibly 

established that the identification was unreasonable, let alone reckless or 

knowingly false. Because a reasonable mistake does not implicate the Fourth 

Amendment, Bosarge fails to state a claim. The agents are entitled to qualified 

immunity, and we need not decide their claim of absolute immunity under 

Rehberg. 

At oral argument, Bosarge’s counsel requested limited discovery on the 

ground that he strongly suspected that exculpatory evidence exists. But 

suspicion alone is not enough: federal pleading rules “do[] not unlock the doors 

of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 

678–79. Indeed, “[o]ne of the most salient benefits of qualified immunity is 

protection from pretrial discovery, which is costly, time-consuming, and 

intrusive.” Backe, 691 F.3d at 648.

In the analogous Rule 12(b)(6) context, our court has ordered the district 

court to dismiss insufficient pleadings where the plaintiff has had an 

opportunity to plead his best case. See Geter v. Fortenberry, 849 F.2d 1550, 

1559 (5th Cir. 1988) (“[W]e would normally order the district court to grant 

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[the] motion to dismiss or for summary judgment, if we were to conclude that 

[the plaintiff] has had the opportunity to plead his best case.”). Bosarge has 

had three opportunities to provide sufficient factual detail: his initial 

complaint, his Rule 7 reply, and his amended complaint. Indeed, Bosarge’s 

counsel stated to the district court: “Everything we have and we can marshal 

at this stage of the proceedings . . . is contained in our amended complaint.” 

Bosarge has had an opportunity to plead his best case, and his claims under 

federal law should be dismissed. 

II. State Law Claims

The Mississippi Tort Claims Act “provides the exclusive civil remedy 

against a governmental entity and its employees for acts or omissions which 

give rise to a suit.” City of Jackson v. Sutton, 797 So. 2d 977, 980 (Miss. 2001)

(citation omitted). The Mississippi Bureau of Narcotics has been found to be a 

state entity within the language of the MTCA. Lippincott v. Miss. Bureau of 

Narcotics, 856 So. 2d 465, 469 (Miss. Ct. App. 2003). The MTCA provides the 

following general waiver of sovereign immunity: “[T]he immunity of the state 

and its political subdivisions from claims for money damages arising out of the 

torts of such governmental entities and the torts of their employees while 

acting within the course and scope of their employment is hereby waived . . . .” 

Miss. Code Ann. § 11-46-5(1). However, that waiver is subject to various 

exceptions. The discretionary function exception, which the Defendants argue 

applies here, provides: 

A governmental entity and its employees acting within the course 

and scope of their employment or duties shall not be liable for any 

claim . . . [b]ased upon the exercise or performance or the failure 

to exercise or perform a discretionary function or duty on the part 

of a governmental entity or employee thereof, whether or not the 

discretion be abused . . . .

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Id. § 11-46-9(1)(d). Immunity attaches to discretionary functions (requiring 

judgment or discretion) but not to ministerial functions (imposed by statute, 

regulation, or other binding directive). See Brantley v. City of Horn Lake, 152 

So. 3d 1106, 1113–1115 (Miss. 2014) (en banc); Harris ex rel. Harris v. McCray, 

867 So. 2d 188, 191 (Miss. 2003) (en banc). In general, “acts performed in 

furtherance of a discretionary function or duty are themselves entitled to 

immunity.” Brantley, 152 So. 3d at 1113. However, “narrower duties 

encompassed in a broad discretionary function may be rendered ministerial 

through statute or regulation.” Id. “[T]he plaintiff bears the burden of proving 

that the narrower function or duty at issue has lost its discretionary-function 

immunity.” Id. at 1115.

In the absence of guidance from the Mississippi Supreme Court, we make 

an Erie guess as to whether the discretionary function exception applies here. 

See Keen v. Miller Envtl. Grp., Inc., 702 F.3d 239, 243 (5th Cir. 2012). Our own 

unpublished caselaw and Mississippi intermediate state court precedent 

indicate that the function of investigating criminal activity is discretionary. 

See McAllister, 470 F. App’x at 322–23 (affirming the application of

discretionary function immunity to a claim that an officer failed to investigate 

the case properly); Estate of Carr ex rel. Macfield v. City of Ruleville, 5 So. 3d 

455, 458 (Miss. Ct. App. 2008) (upholding the application of discretionary 

function immunity to “basic investigative decisions” by a police chief, including 

“the decision of what type of investigation to conduct prior to the execution of 

the warrant”). Although a statute or regulation may render ministerial a

particular duty within a broad discretionary function, Bosarge has not carried 

his burden of identifying any such statute or regulation, even though he had 

an opportunity to do so in his amended complaint, filed after the Defendants 

claimed the discretionary function exception. Bosarge argues on appeal that

discretionary function immunity does not apply because “a law enforcement 

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officer does not have the discretion to falsely or recklessly accuse someone of a 

crime he didn’t commit.” However, as explained above, Bosarge’s amended 

complaint does not adequately allege that the misidentification was reckless 

or knowing. See City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 

155 (5th Cir. 2010) (noting that federal pleading rules apply in diversity cases). 

We therefore find that discretionary function immunity protects both the 

Mississippi Bureau of Narcotics and the individual agents from suit for the 

alleged violations of state law. 

CONCLUSION

Bosarge has not stated a claim that the Defendants violated his federal 

constitutional rights, and the Mississippi Tort Claims Act immunizes the 

Defendants from suit under state law. Because we hold that the district court 

erred in denying the Defendants’ motion for judgment on the pleadings, we do 

not consider the Defendants’ argument that the district court should have 

granted their motion for summary judgment. We REVERSE the district court’s 

denial of the Defendants’ Rule 12(c) motion for judgment on the pleadings. We 

REMAND with instructions to dismiss Bosarge’s claims. 

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