Bosarge v. Miss. Bureau of Narcotics

• Decision Date: 15 July 2015
• Docket Number: No. 14–60242.,14–60242.
• Citation: 796 F.3d 435
• Parties: Charles C. BOSARGE, Plaintiff–Appellee v. MISSISSIPPI BUREAU OF NARCOTICS ; Cal Reynolds; Eric Fulton, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

796 F.3d 435

Charles C. BOSARGE, Plaintiff–Appellee

v.MISSISSIPPI BUREAU OF NARCOTICS ; Cal Reynolds; Eric Fulton, Defendants–Appellants.

No. 14–60242.

United States Court of Appeals, Fifth Circuit.

July 15, 2015.

David Neil McCarty, David Neil McCarty Law Firm, P.L.L.C., Robert Bruce McDuff, Esq., Graham Patrick Carner, Jackson, MS, for Plaintiff–Appellee.

Brian Atkins Montague, Law Offices of Brian A Montague, P.L.L.C., Hattiesburg, MS, Wilson Douglas Minor, Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendant–Appellant.

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

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

Opinion

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).

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 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 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) “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, ––– U.S. ––––, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012). The district court held a hearing on the Defendants' motion before issuing an oral ruling denying the motion. The district court found that 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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,...