Eric Cunningham, Jr., et al v. City of West Point Mississippi

Filing 511134550

Eric Cunningham, Jr., et al v. City of West Point Mississippi

Doc. 511134550

Case: 09-60782

Document: 00511134550

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Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 7, 2010 N o . 09-60782 Lyle W. Cayce Clerk

E R IC CUNNINGHAM, JR., by and through his father and next friend, Eric C u n n in g h a m , Sr.; ERIC CUNNINGHAM, JR., Individually, P la in t iffs ­ Appellants v. C IT Y OF WEST POINT MISSISSIPPI, D e fe n d a n t ­ Appellee

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 1:07-CV-261

B e fo r e GARWOOD, STEWART, and CLEMENT, Circuit Judges. P E R CURIAM:* E r ic Cunningham, Jr. (Cunningham), and his father, Eric Cunningham, S r ., appeal the dismissal of their claims against the City of West Point, M iss iss ip p i under 42 U.S.C. § 1983 and the Mississippi Tort Claims Act (MTCA). W e affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-60782 F A C T S AND PROCEEDINGS S e v e n t e e n -y ea r-old Cunningham was babysitting his girlfriend's children, in c lu d in g fifteen-month-old Jahmad Hogan. Hogan accidentally died while u n d e r Cunningham's care, but local authorities charged Cunningham with child a b u s e and capital murder. A municipal judge, A.M. Edwards, denied

C u n n in g h a m bail, and he remained in jail for fifty-eight days. Ultimately, the g ra n d jury refused to indict Cunningham on the charges. Cunningham, along w it h his father, sued the City pursuant to § 1983 and the MTCA. He asserted t h a t the denial of bail deprived him of a federally protected right and that the C ity 's employees were negligent in their investigation of Hogan's death. On the City's motion, the district court entered summary judgment in its fa v o r on all claims. The court first concluded that there was no valid

p o lic y m a k e r on whom the City's alleged § 1983 municipal liability could be pin n ed. It then summarily found that there was no evidence to support

C u n n in g h a m 's assertion that City employees acted in "reckless disregard of [his] s a fe ty and well-being," as required to prevail under the MTCA. DISCUSSION C u n n in g h a m makes two arguments. First, he contends that his § 1983 c la im was dismissed in error because the municipal judge was acting as a p o l ic y m a k e r for the City. Second, he contends that material fact issues

p r e c lu d e d summary judgment in the City's favor on his state claim.1 We address t h e s e arguments in turn.2
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Cunningham also argues that Judge Edwards's denial of bail without particularized findings deprived him of federal rights under the Fourteenth Amendment. For reasons discussed infra, the court need not address this argument. We review "a district court's grant of summary judgment de novo, applying the same legal standards as the district court." Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009) (quotation omitted). "[T]he evidence and inferences from the summary judgment record are viewed in the light most favorable to the nonmovant." Id. (quotation omitted).
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No. 09-60782 I. S e c t i o n 1983 Municipal Liability T o prevail on his § 1983 claim against the City, Cunningham "must e s ta b lis h that he sustained a deprivation of his constitutional rights as a result o f some official policy, practice, or custom of the governmental entity." Krueger v . Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (citing Monell v. Dep't of Social Servs., 4 3 6 U.S. 658, 694 (1978)). In Pembaur v. City of Cincinnati, the Supreme Court h e ld that "municipal liability may be imposed for a single decision by municipal p o licy m a k e rs under appropriate circumstances." 475 U.S. 469, 480 (1986).

" [W ]h e r e action is directed by those who establish governmental policy, the m u n ic ip a lit y is equally responsible whether that action is to be taken only once o r to be taken repeatedly." Id. at 481. Whether an official possesses the

r e q u is it e "final policymaking authority" is a question to be decided by reference to state law. Burge v. Parish of St. Tammany, 187 F.3d 452, 468-69 (5th Cir. 1 9 9 9 ). Cunningham asserts that Judge Edwards, as a municipal judge for the C it y , was a policymaker and that his decision to deny bail constituted municipal p o l ic y . This court has repeatedly rejected this argument in analogous cases. In K r u e g e r , the court flatly held that "[a] local judge acting in his or her judicial c a p a c it y is not considered a local government official whose actions are a t tr ib u ta b le to the county." 66 F.3d at 77. In Johnson v. Moore, the court e m p h a s iz e d its repeated holdings "that a municipal judge acting in his or her ju d i c ia l capacity to enforce state law does not act as a municipal official or la w m a k e r ." 958 F.2d 92, 94 (5th Cir. 1992); see also Bigford v. Taylor, 834 F.2d 1 2 1 3 , 1221-22 (5th Cir. 1988). Cunningham presents no state law that would c o m p e l a different conclusion. Thus, our precedents foreclose the argument that J u d g e Edwards operated as a municipal policymaker when he denied bail. A w a r e of the contrary precedent, Cunningham urges us to disregard J o h n s o n , arguing that it is contrary to our earlier decisions in Familias Unidas 3

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No. 09-60782 v . Briscoe, 619 F.2d 391 (5th Cir. 1980), and Crane v. Texas, 759 F.2d 412 (5th C ir . 1985). Familias Unidas held that certain Texas county judges, as the "final a u t h o r it y or ultimate repository of county power," could amount to policymakers fo r actions taken pursuant to their nonjudicial--i.e., their administrative, leg is la tiv e , and executive--duties. 619 F.2d at 404; see also Carbalan v. Vaughn, 7 6 0 F.2d 662, 665 (5th Cir. 1985) (describing the import of Familias Unidas in t e r m s of the special role of county judges in Texas). There is no suggestion that J u d g e Edwards had an array of duties similar to those of the Texas county ju d g e s in Familias Unidas. Furthermore, there is no doubt that Judge

E d w a rd s 's denial of bail was a judicial action. Meanwhile, in Crane, the court s im p ly cited Familias Unidas with approval in concluding that certain decisions m a d e by a district attorney were tantamount to municipal policy. 759 F.2d at 4 2 9 -3 0 . Contrary to Cunningham's contention, neither of these cases is in c o n flic t with Johnson v. Moore or related decisions. F in a lly , Cunningham argues that it is illogical for the court to conclude th a t a municipal judge enforcing state law provisions in his judicial capacity is a c tin g pursuant to state, rather than municipal, policy. This argument, too, is fo r e c lo s e d . See Bigford, 834 F.2d at 1222 (holding that a municipal judge's d e p a rtu re from controlling state law "cannot be said to represent county policy"); s e e also Eggar v. City of Livingston, 40 F.3d 312, 315 (9th Cir. 1994) (refusing to h o ld that a municipal judge's failure to follow state and federal constitutional la w renders him a municipal policymaker). Accordingly, regardless of whether Cunningham suffered a constitutional d e p r iv a t io n , the City cannot be liable under the facts of this case because the c la im e d deprivation was not the result of an official policy, practice, or custom. S e e Johnson, 958 F.2d at 93-94 (declining to address the merits of an alleged c o n s t it u t io n a l deprivation once it has been established that no municipal

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No. 09-60782 l i a b ility can attach); Bigford, 834 F.2d at 1223 (same). The dismissal of the § 1983 claim is therefore affirmed. B. M is s i s s i p p i Tort Claims Act T h e MTCA provides a qualified waiver of sovereign immunity under M is s is s ip p i law for certain tortious acts by municipal employees. It does not w a iv e sovereign immunity, however, for any act or omission of an employee of a governmental e n t it y engaged in the performance or execution of d u t ie s or activities relating to police or fire protection u n le s s the employee acted in reckless disregard of the s a fe ty and well-being of any person not engaged in c r im in a l activity at the time of injury. M ISS. CODE ANN. § 11-46-9(1)(c). Thus, the City can only be liable for its officers' c o n d u c t if those officers acted with reckless disregard of Cunningham's safety a n d well-being. "[R]eckless disregard is synonymous with willfulness and

w a n t o n n e s s and . . . includes an element of intent to harm." Foster v. Noel, 715 S o . 2d 174, 179 (Miss. 1998). In his complaint, Cunningham alleged that the City's police investigation w a s deficient in the following respects: officers negligently relied on a faulty m e d i c a l opinion of the cause of death; officers negligently failed to interview w it n e s s e s ; and the City was negligent in failing to train its officers on proper i n v e s t ig a t iv e techniques. In granting judgment for the City, the district court fo u n d that its employees were acting within the course and scope of their e m p lo y m e n t and that there was no evidence of "reckless disregard of the safety a n d well-being" of Cunningham. On appeal, Cunningham contends that the o ffic e r s failed to interview eyewitnesses.3 Cunningham frames the argument in

Cunningham also contends that officers conducted an abusive interview with him and submitted improper, conclusory affidavits to support the arrest warrants. Because Cunningham did not present these arguments to the district court, however, they may not be

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No. 09-60782 t e r m s of "fact issues" which prevent summary judgment, but he does not point t o evidence that in any way undermines the district court's ruling that the o ffic e r s did not act with reckless disregard of Cunningham's safety or well-being. I n s te a d , Cunningham merely points to evidence that the officers conducted c u r s o r y interviews with certain witnesses. There is no support for his implicit a s s u m p t io n that conducting a limited interview necessarily amounts to reckless d is r e g a r d sufficient to trigger municipal liability. Nor do the MTCA cases cited by Cunningham support his position.4 In F o ste r v. Noal, the Mississippi Supreme Court held that an officer acted with r e c k le s s disregard when no investigation whatsoever was conducted and when th e officer simply entered the plaintiff's name on an arrest affidavit. Foster, 715 S o . 2d at 176-77, 179. Here, an investigation was conducted, which, though it m a y have led the officers to arrest Cunningham in error, was nonetheless not so la c k in g in substance as to amount to reckless disregard of his safety. M e a n w h ile , Phillips v. Mississippi Department of Public Safety merely stands fo r the uncontroversial proposition that a court must consider "the totality of the c ir c u m s ta n c e s when considering whether someone acted in reckless disregard." 9 7 8 So. 2d 656, 661 (Miss. 2008). The district court correctly held that Cunningham did not present evidence c r e a t i n g a material fact issue as to whether the officers acted with reckless d is r e g a r d . Accordingly, we affirm its dismissal of the MTCA claim.

raised on appeal. LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). Even if not waived, these arguments would not affect our conclusion, as Cunningham presents no specific evidence to support his theory that the officers' actions constituted the requisite "reckless disregard." Cunningham also cites malicious prosecution cases relating to probable cause, but these are not relevant to his MTCA claim. The question before the court is not whether probable cause to issue an arrest warrant existed, but whether the officers acted with reckless disregard of Cunningham's safety and well-being during the investigation.
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No. 09-60782 C O N C L U S IO N F o r the foregoing reasons, the judgment of the district court is A F F IR M E D .

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