Joseph JONES, Plaintiff-Appellee, v. CITY OF JACKSON, et al., Defendants, Malcolm McMillin and Les Tannehill, Defendants-Appellants, 203 F.3d 875

ROBERT M. PARKER, Circuit Judge: Malcolm McMillin and Les Tannehill appeal the district court’s denial of their motion' for

summary judgment, in which they claimed qualified, absolute and sovereign immunity from Joseph Jones’s causes of action brought pursuant to 42 U.S.C. § 1983 and Mississippi state law. We affirm in part, reverse in part and remand the case to the district court for further proceedings. I. FACTS AND PROCEDURAL HISTORY For purposes, of this appeal we assume the truth of the following facts. In October 1991, Jones entered guilty pleas to three separate burglary counts. In the first count, Cause No. 4255, Jones was sentenced to two years of incarceration and five years of probation.

The other counts, Cause Nos. 4256 and 4257, were left as open pleas, the sentences to be determined at a later time. On February 24, 1993, after Jones had completed his two years in prison and been released to serve the probated portion of his initial sentence, Judge Breland Hilburn, Circuit Judge of Hinds County, Mississippi, issued a bench warrant for Jones’s arrest for failure to appear for sentencing in Cause Nos. 4256 and 4257. The basis for the issuance of the bench warrant is variously characterized as a “clerical error” and “probation violation” by the parties on appeal.

On Sunday, June 5, 1994, a City of Jackson police officer stopped Jones for a routine traffic violation. The officer arrested Jones for an outstanding warrant on a simple assault charge and for operating a motor vehicle without a license and took him to the Jackson City Jail. The next day, June 6, 1994, Hinds County Sheriffs Deputy Les Tannehill sent a facsimile copy of a bench warrant to the Jackson City Jail requesting that a detainer be placed in Jones’s file based on the bench warrant issued earlier by Judge Hilburn.

Malcolm McMillin, Sheriff of Hinds County, had no personal involvement with Jones other than his official responsibilities to devise and enforce policy for Hinds County. On Tuesday, June 7, 1994, Jones attended a hearing before the City of Jackson Municipal Court wherein the charges of simple assault-and driving without a license brought by the City of Jackson were dismissed when the City of Jackson determined that it had arrested the wrong person. However, Jones remained incarcerated in the Jackson City Jail on the basis of the detainer lodged by Tanne-hill.

The City of Jackson continued to incarcerate Jones until June 20, 1994, when he was transferred from the Jackson City Jail to the Madison County Jail. At the time, the City of Jackson and Hinds County Jail systems were under federal court order to relieve overcrowding. Jackson and Hinds County entered into an Interlocal Agreement with Madison County, Mississippi to house Jackson’s extra prisoners for a fee. -The agreement allocated a set number of prisoner beds to Jackson and Jackson agreed to “sublet” their unused beds in Madison County Jail to house Hinds County’s extra prisoners.

The cost of Jones’s incarceration was billed daily to Hinds County, who reimbursed the City of Jackson for their payments to Madison County. Jones remained in the Madison County Jail as a result of the Hinds County de-tainer, without hearing or court appearance, until March 6, 1995.

After nine months, Jones was brought into state district court in Hinds County, Mississippi and Judge Hilburn entered an order dismissing all affidavits for probation violation, terminating Jones’s probation, dismissing and vacating all detainers and charges placed on Jones by Hinds County or the Jackson Police Department and ordered the Hinds County Sheriffs Office to “immediately RELEASE the Defendant from custody.” On June 7, 1996, Jones filed á complaint in Mississippi state court against the City of Jackson, Hinds County and numerous individual defendants, alleging that the defendants violated his constitutional rights and various state laws by detaining him in 1994-95.

Jones dismissed Hinds County without prejudice and the remaining defendants removed the case to federal court. Tannehill and McMillin filed a motion for

summary judgment on the basis of absolute, qualified and sovereign immunity. The district court denied

summary judgment in a one-page order. II. DISCUSSION A. JURISDICTION AND STANDARD OF REVIEW Jones argues that we do not have jurisdiction over this appeal. Typically, denials of qualified immunity, although not final orders, are immediately appealable under the collateral order doctrine set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This doctrine allows an immediate appeal from orders denying

summary judgments based on qualified immunity as a matter of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “If disputed factual issues material to

summary judgment are present, the district court’s denial of

summary judgment on the basis of immunity is not appealable.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 431 (5th Cir.1993)(quotation and citations omitted). Jones maintains that there is no way to determine whether facts or law formed the basis for the district court’s denial of

summary judgment and that this court is therefore without jurisdiction to review it on interlocutory appeal. When the district court fails to make findings of fact and conclusions of law, the appellate court will “undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the non-moving party, likely assumed.” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Having performed the requisite record review, we conclude that this appeal presents questions of law, not fact, and is therefore immediately ap-pealable.

See Mitchell v. Forsyth, 472 U.S. 611, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This court reviews the denial of a motion for

summary judgment de novo using the same criteria applied by the district court in the first instance. Reese v. Anderson, 926 F.2d 494, 498 (5th Cir.1991). B. IN CUSTODY No one disputes that Jones was imprisoned for nine months. However, Appellants contend that Hinds County did not have “custody” of Jones. Who was responsible for Jones’s illegal detention and whether or not that detention gave rise to constitutional protections are mixed questions of fact and law that go to the gravamen of Jones’s suit.

Under Mississippi law, if a Hinds County prisoner is housed in a different county due to over-crowding, Hinds County remains responsible for his custody. See Lee v. State of Mississippi 437 So.2d 1208, 1209 (Miss.1983) (interpreting § 47-3-1 Miss.Code Ann. (1972)). Further, a Mississippi prisoner awaiting trial on a criminal charge in one county is entitled to credit for time served in another county so long as a detainer is lodged in the prisoner’s file by the first county. See id.

In addition, we find it significant that the Mississippi Circuit Court order directed Hinds County to release Jones, which order successfully gained his freedom. This court has similarly held that a prisoner incarcerated in one jurisdiction subject to a detainer from a different jurisdiction is “in custody” of the second jurisdiction for purposes of federal habeas corpus statute, 28 U.S.C. § 2241(c)(3)(1994). See Dickerson v. State of Louisiana, 816 F.2d 220, 224-25 (5th Cir.1987).

Dickerson relied on Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), in which the Supreme Court concluded that a state placing a detainer on the petitioner who was incarcerated in another jurisdiction had “custody” of him for habeas corpus purposes. See id., 410 U.S. at 489 n. 4, 93 S.Ct. 1123. Based on the unanimous jurisprudence of Mississippi, the Fifth Circuit and the Supreme Court, we conclude that Jones has alleged facts sufficient to establish that Hinds County had custody of Jones.

MeMillin and Tannehill, named in their individual and official capacities, allegedly caused Hinds County’s exercise of illegal custody over Jones by affirmative acts (e.g., sending the detainer to Jackson City Jail) and omissions (e.g., failing to take Jones before the Circuit Court of Hinds County as the Bench Warrant commanded). C. QUALIFIED IMMUNITY The first inquiry in examining a defense of qualified immunity asserted in a motion for

summary judgment is whether the plaintiff has alleged “the violation of a clearly established constitutional right.” Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The second step is to “decide whether the defendant’s conduct was objectively reasonable” in light of the legal rules clearly established at the time of the incident. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993).

Clearly established constitutional rights Jones alleged that his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when he was held pursuant to a detainer issued by the Hinds County Sheriffs Office and-placed in his file by defendant Tannehill and was not brought before a judge or magistrate for over nine months. a. Fourth Amendment Jones’s Fourth Amendment allegations fail because he admitted that a facially valid bench warrant existed in Hinds County on the date the detainer was sent to Jackson City Jail.

The original seizure was therefore pursuant to a valid court order. “Fourth Amendment claims are appropriate [only] when the complaint contests the method or basis of the arrest and seizure of the person.” Brooks v. George County, Miss., 84 F.3d 157, 166 (5th Cir.1996). The protections offered by the-Fourth Amendment do not apply if the plaintiff challenges only continued incarceration. Id. We must therefore reverse and render

summary judgment for Tannehill and McMillin on Jones’s Fourth Amendment Claims. b. Fifth Amendment Jones’s Fifth Amendment claim of a denial of his right to due process must also fail. The Fifth Amendment applies only to violations of constitutional rights by the United States or a federal actor. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir.1996). Jones has not alleged that McMillin or Tannehill were acting under authority of the federal government. Tannehill and McMillin are entitled to

summary judgment on Jones’s Fifth Amendment Claims. c. Sixth Amendment Jones raised two alleged violations of the Sixth Amendment: denial of his right to counsel and denial of his right to be informed of the charges against him. The right to counsel guaranteed by the Sixth Amendment attaches when adversary proceedings are commenced against the defendant. United States v. Gouveia, 467 U.S. 180, 187-188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). A defendant’s right to be informed of the nature and cause of an accusation brought against him does not exist until the Government is committed to a prosecution. Kladis v.

Brezek, 823 F.2d 1014, 1018 (7th Cir.1987). The bench warrant underlying the detainer was based on Jones’s alleged failure to appear for sentencing on two burglary charges. Certainly the Government was “committed to a prosecution” of these two charges and the Sixth Amendment rights to be informed of the charges and to be represented by counsel had attached. We will therefore affirm the denial of qualified immunity on Jones’s Sixth Amendment claims. d.

Eighth Amendment Jones alleged that his incarceration constituted cruel and unusual punishment in violation of the Eighth Amendment. “ ‘The primary purpose of [the Cruel and Unusual Punishments] clause has always been considered ... to be directed at the method or kind of punishment imposed for the violation of criminal statutes....’” Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)(quoting Powell v. Texas, 392 U.S. 514, 531-532, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968)).

Jones, complaining about the fact of his incarceration rather than its conditions, fails to state a cause of action under the Eighth Amendment. We therefore reverse the denial of qualified immunity from Jones’s Eighth Amendment claims. e. Fourteenth Amendment Jones has also alleged violations of his Fourteenth Amendment due process rights, which are protected from unconstitutional actions by state actors. See DeShaney v. Winnebago Co. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d.249 (1989).

Prohibition against improper use of the “formal restraints imposed by the criminal process” lies at the heart of the liberty interests protected by the Fourteenth Amendment due process clause. See Board of Regents v. Roth, 408 U.S. 564, 575, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Fourteenth Amendment’s protection of Jones’s liberty interest was clearly established in 1994-95, and Jones’s alleged nine month detention without proper due process protections was not objectively reasonable in light of the clearly established legal rules.

We must therefore affirm the denial of qualified immunity as to Jones’s Fourteenth Amendment claims. STATE LAW CLAIMS McMillin and Tannehill also appeal the denial of

summary judgment for state-law claims against them. Under Mississippi law, an exemption for the waiver for sovereign immunity exists if the defendants are government officials acting in the course and scope of their employment and the complainant was incarcerated at the time of the alleged acts. Miss. Code AnN. § ll-46-9(l)(m) (1972). Jones was incarcerated at the time of the events at issue, and he has not alleged any facts that would tend to show that McMillin and Tannehill were not acting in the course and scope of their employment. Therefore, McMillin and Tannehill should have been granted

summary judgment based on sovereign immunity for state-law claims filed against them by Jones. CONCLUSION We AFFIRM the denial of qualified immunity as to Jones’s Sixth and Fourteenth Amendment claims, and REMAND this case to the district court for further proceedings. We REVERSE the district court and grant Tannehill and McMillin qualified immunity on Jones’s Fourth, Fifth and Eighth Amendment claims. Finally, we REVERSE the denial of

summary judgment for defendants on Jones’s state law claim. AFFIRMED in part, REVERSED in part, and REMANDED. . The city of Jackson is in Hinds County, Mississippi. . The record reveals that material issues of fact remain as well, particularly concerning the question of which individual or individuals caused the alleged constitutional violations. To the extent the parties' arguments are bottomed on factual question of causation, we have no jurisdiction to resolve their disputes.