Tate v. Sharp et al

Filing 26

MEMORANDUM OPINION re 25 Order on Motion for Miscellaneous Relief. Signed by Senior Judge Glen H. Davidson on 2/22/13. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

ANNIE TATE

v.

PLAINTIFF
CIVIL ACTION NO.1: 11-CV-00268-GHD-DAS

OFFICER RICK SHARP, Individually and
in His Official Capacity; OKTIBBEHA COUNTY;
and OKTIBBEHA COUNTY SHERIFF'S DEPARTMENT

DEFENDANTS

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART

DEFENDANT OFFICER RICK SHARP'S MOTION FOR QUALIFIED IMMUNITY

Presently before the Court in this civil rights action is a motion for qualified immunity
[11] filed by Defendant, Officer Rick Sharp. Upon due consideration of the motion, response,
reply, accompanying briefs, responsive briefs and attached documents, rules, and authorities, l the
Court finds that the motion for qualified immunity should be granted with respect to Plaintiffs
excessive force claim and First Amendment free speech claim, but denied with respect to
Plaintiffs false arrest claim and malicious prosecution claim on evidence sufficiency grounds.
A. Overview

On December 27, 2011, Plaintiff Annie Tate ("Plaintiff') filed suit against Officer Rick
Sharp, individually and in his official capacity ("Sharp"); Oktibbeha County; and the Oktibbeha
County Sheriff s Department.

She alleges her constitutional rights were violated under 42

U.S.c. § 1983 when she was falsely arrested, subjected to excessive force, maliciously
prosecuted, and denied her right to free speech. She further alleges that Defendants' acts were

I Plaintiff filed an "amended response" [21] following Defendant's submission of his reply in support of
the motion for qualified immunity. This "amended response," which functions as a sur-reply, is not properly before
the Court. Because the proper procedure is the submission of a motion, a response, and a reply, and because
Plaintiff did not seek leave of Court to file a sur-reply, the Court will not consider the "amended response" in its
determination ofthe motion. See FED. R. CIV. P. 83(b); Jefferson v. Christus St. Joseph Hasp., 374 F. App'x 485,
489 (5th Cir. 2010). However, the Court notes that even if the sur-reply had been considered in the Court's
determination of the motion, the Court would have reached the same result.

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committed as a result of policies and customs of Oktibbeha County and the Oktibbeha County
Sheriffs Department. Defendants have answered the complaint, Sharp has now filed a motion
for qualified immunity [11] on Plaintiff's claims against him in his individual capacity for (a)
false arrest, (b) excessive force, (c) malicious prosecution, and (d) free speech right violations.
The Court will necessarily cabin its analysis to the claims asserted against Sharp.

B. Legal Standard
A motion for qualified immunity is often resolved as a summary judgment motion, but

may be considered a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009); 13D WRIGHT, MILLER, COOPER & FREER, FEDERAL PRACTICE AND
PROCEDURE § 3573.3 (3d ed. 1998). A Rule 12(b)(6) motion to dismiss is untimely once a
defendant has answered the complaint. See FED. R. CIv. P. 12(b) (motion to dismiss under Rule
12(b)(6) "must be made before pleading if responsive pleading is allowed").

Because

Defendants answered the complaint before Sharp's motion was filed, and because the motion
was filed at such an early stage in the case, the Court ordinarily would treat the motion as a Rule
12(c) motion for judgment on the pleadings, which is governed by the same standards as a Rule
12(b)(6) motion. See Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009).
However, because Plaintiff attached an affidavit to her response to the motion for qualified
immunity which includes some facts not alleged in the pleadings, and because the Court will not
exclude this affidavit in its consideration of the motion, the Court gave the parties notice that it
would treat Sharp's motion for qualified immunity as a motion for summary judgment under
Rule 56. See FED. R. CIV. P. 12(d); Burns v. Harris Cnty. Bail Bond Bd., 139 F.3d 513, 517 (5th
Cir. 1998) ("When matters outside the pleadings are presented to and not excluded by the district
court, the district court must convert a motion to dismiss into a motion for summary judgment.").

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Accordingly, the Court gave the parties an opportunity to submit responsive briefing and
documentation. See Order [22]. The parties have each filed submissions, and the matter is now
ripe for review.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986). See FED. R. CIV. P. 56(a); Weaver v.

CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.
Ct. 2548.
The party moving for summary judgment bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine dispute of material fact. Id. at 323, 106 S. Ct. 2548.
Under Rule 56(a), the burden then shifts to the nonmovant to "go beyond the pleadings and by
. . . affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S. Ct.

2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche
Biomedical Labs., Inc., 61 F.3d 313,315 (5th Cir. 1995).
Where, as here, the parties dispute the facts, the Court must view the facts and draw
reasonable inferences in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372,
378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal citations omitted).

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"However, a

nonmovant may not overcome the summary judgment standard with conclusional allegations,
unsupported assertions, or presentation of only a scintilla of evidence." McClure v. Boles, No.
11-41345, 2012 WL 5285103, at ... 1 (5th Cir. Oct. 26, 2012) (per curiam) (citing Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007)). With all the foregoing in mind, the Court now turns

to the facts.
C. Factual Background

The Court now weaves together the factual background of this case, noting the
undisputed facts, and where the facts are disputed, drawing all reasonable inferences in favor of
Plaintiff. 2
The following facts are not in dispute: On February 20, 2010, Cassandra Tate
("Cassandra") contacted the Oktibbeha County Sheriffs Department to report the potential
kidnapping of her seven-year-old child. Cassandra claimed her child was being held at the
mobile home of her cousin, Jackie Tate Wilson ("Jackie,,).3 Rick Sharp, a deputy sheriff with
the Oktibbeha County Sheriffs Department drove out to Jackie's mobile home to investigate;
Cassandra also drove to the residence in her own car. Upon arrival, Sharp knocked on the door
of the residence, but no one came to the door.

At some point thereafter, Sharp called his

commanding officer, James Lindsey, and informed him that he had discovered that Cassandra
was not being truthful about the supposed kidnapping and he could not get anyone to answer the
door.4

Plaintiff, a then-sixty-year-old female, drove up to Jackie's residence.

(Jackie is

2 The Court notes that compiling these facts was unusually tedious, as the parties' version of the facts
seems to have evolved over the course of this proceeding, and at times, the parties contradict even themselves.
3 The parties now agree that the child had been living with Jackie for a few months while Cassandra had
been looking for work and a new place to live in Houston, Texas.
4 In the investigation report concerning the incident, which is attached to Sharp's responsive briefmg, it is
noted that upon Sharp's arrival on the scene he called his commanding officer, James Lindsey, and told him that "he
found out that Cas [s]andra was not telling the truth about the matter[] and he could not get anyone to answer the

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Plaintiff's daughter.) Plaintiff noticed Sharp's cruiser parked in Jackie's yard, went next door to
her other daughter's residence, and then returned to her car and backed into Jackie's yard. She
walked over to the vehicle belonging to her niece Cassandra and asked her what was going on. 5
Sharp approached Plaintiff. Plaintiff asked him, "What is going on?" Some exchange
took place between the two concerning the potential kidnapping and whether the child was being
held in Jackie's residence. Sharp began to question Plaintiff about the child. He also asked
Plaintiff who was in the residence, and she said she did not know. The conversation escalated.
At some point, Plaintiff stopped responding to Sharp's questions. Plaintiff expressed her desire
to leave the scene and got in her car to leave. Sharp expressed his desire for Plaintiff to remain
on the scene for further questioning. Most of what transpired next is in dispute, but the parties
agree that at one point Plaintiff was attempting to close her car door to leave when Sharp placed
his hand on the post between the front and back driver's doors and Sharp's little finger was
inadvertently crushed in the door facing. 6
Taking Plaintiff's version of the facts as true, Plaintiff tried to get out of the car when
Sharp asked her to, but was slow getting up. Sharp wrapped his hand around her clothes, choked
her, forced her to the ground, put his knee in her back, and handcuffed her for the purpose of
inducing her to tell him who was in the house. Plaintiff maintains that she suffered injuries as a
result of these alleged incidents.

door at the location." Oktibbeha Cnty. Sheriffs Office Incident Supplement Page [23-1] at 5. The report notes that
Lindsey advised Sharp that "we could not do anything until we found out what was going on and needed to see a
court order to do anything concerning this matter." See id
5

Plaintiff claims Cassandra said to her, "I don't know. I'm just smoking a cigarette."

6 Although Sharp initially contended in his motion for qualified immunity that Plaintiff had attempted to
slam the door on his hand and that his hand was broken as a result, he now concedes in his subsequent brief in
response to the Court's order that his little fmger, not his hand, was injured, and that the incident was not intentional.
See Oktibbeha Cnty. Sheriffs Office Incident Report [23-1] at 3.

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Sharp's version of the facts is that Plaintiff was belligerent and refused to exit her
vehicle. Sharp maintains that time and time again, he asked Plaintiff to exit her car, but she
continued to refuse. Sharp further maintains that he informed Plaintiff she was under arrest for
disorderly conduct but still could not get her to exit the vehicle. Sharp contends that he reached
inside the car and took hold of Plaintiffs left arm to pull her out of the car, but Plaintiff grabbed
the steering wheel with her right arm to resist being removed from the vehicle. Sharp maintains
that he succeeded in physically removing Plaintiff from the car, and once out of the car, Plaintiff
continued to resist. Sharp then maintains that he "took" her to the ground and handcuffed her in
a standard police "take-down" procedure. Sharp maintains that all this time Plaintiff was yelling
and screaming at Cassandra, telling her it was all her fault, and stating that she had heart trouble.
Although the parties dispute the exact details of what occurred, the parties agree that
Sharp took Plaintiff to the ground and handcuffed her in what was apparently a take-down
maneuver; Plaintiff and her niece Cassandra pleaded with Sharp to remove the handcuffs from
Plaintiffs wrists and release her; and Sharp acquiesced, removing the handcuffs from Plaintiffs
wrists, informing her she was not under arrest, and instructing her to leave the scene.
Plaintiff alleges that she then got on her knees and pulled herself up to a standing position
by holding on to her car door for support. It is undisputed that Plaintiff immediately left the
scene and went directly to the Oktibbeha County Sheriff's Department to file a complaint against
Sharp for assault. Sharp says he went to get an X-ray of his hand.
At the sheriffs department, Plaintiff filed a misconduct report on Sharp stating that Sharp
had "caught hold to [her] clothes," "slammed [her] up against the ground," "handcuffed [her],"
and "choked [her] with [her] shirt." See Pl.'s Statement [23-2] at 4. The other events that
occurred at the sheriff s department are in dispute, but it is undisputed that Sharp signed an

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affidavit against Plaintiff at some point subsequent to Plaintiffs filing of the misconduct
complaint against Sharp.
Taking Plaintiffs versIOn of the facts as true, while Plaintiff was making out the
misconduct report, Sharp showed up and told Lindsey to arrest Plaintiff. Plaintiff asked, "For
what?" and Sharp said he did not know. After Plaintiff finished making out the report, Plaintiff
maintains that Sharp and Lindsey arrested her, did not read her her Miranda rights, told her they
were actually not arresting her, but then took her fingerprints and gave her an orange top.
According to Plaintiff, the bond was set at $500.00, but Lindsey told her she could pay $25.00 to
bond out. Plaintiff alleges that she paid the $25.00 and was released.
It is undisputed that after leaving the sheriffs department, Plaintiff went to the Oktibbeha

County Hospital for treatment. Plaintiff alleges that she received treatment for the injuries to her
shoulder and neck, a bruise on her breast, a scratch on her chin, body and back pain, and blood in
her urine. Her medical records reveal that the reason for her exam was stated to be "[r]ight
shoulder pain after assault" and the findings were that she had some pain but tested negative for
fracture or dislocation of bone. See Pl.'s Med. Report [23-3] at 2. The impression was that she
was in no acute distress. Id. at 2, 4.
Plaintiff then returned to the sheriff's department to file charges against Sharp. Sharp
maintains that Plaintiff was told by Lindsey that no charges would be filed against Sharp until an
investigation was conducted into the matter and until Plaintiff had met with the Sheriff
concerning the matter.
On April 19, 2010, Oktibbeha County Circuit Court Judge Lee J. Howard held a probable
cause hearing concerning Plaintiff s allegations against Sharp. Both Plaintiff and Deputy Brett
Watson, the investigating officer, testified at the hearing. Based on the testimony and evidence

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presented, Judge Howard declined to issue an arrest warrant for Sharp, and no further
proceedings ensued in connection with Plaintiffs charge against Sharp until Plaintiff
commenced this civil suit.
Sharp and the Oktibbeha County Sheriffs Department charged Plaintiff with aggravated
assault in connection with the above incidents. Plaintiff was prosecuted on these charges until all
charges were dismissed without prejudice. See Nolle Prosse [23-6] at 1.
D. Qualified Immunity

Sharp argues he is entitled to qualified immunity on the Section 1983 claims against him
in his individual capacity, because he executed a valid arrest of Plaintiff and took her into
custody without causing her any injury, and alternatively, even if Sharp's actions violated
Plaintiffs constitutional rights, Sharp's actions were not objectively unreasonable in light of
clearly established law.
"Section 1983 provides a cause of action for persons who have been 'depriv[ed] of any
rights, privileges, or immunities secured by the Constitution and laws' of the United States by
the actions of a person or entity operating under color of state law." Kovacic v. Villarreal, 628
F.3d 209,213 (5th Cir. 2010) (quoting 42 U.S.C. § 1983). "The purpose of [Section] 1983 is to
deter state actors from using the badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504
U.S. 158, 161, 112 S. Ct. 1827, 118 L. Ed. 2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247,
254-57, 98 S. Ct. 1042, 5 L. Ed. 2d 252 (1978)). Section 1983 claims may be brought against a
state official in his individual capacity but may not be brought against a state official in his
official capacity. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24, 117 S. Ct.

8

1055,137 L. Ed. 2d 170 (1997) (citing Hafer v. Melo, 502 U.S. 21,25-31,112 S. Ct. 358,116 L.
Ed. 2d 301 (1991)).
Section 1983 claims brought against a state official in his individual capacity are subject
to the affinnative defense of qualified immunity. Qualified immunity has been recognized as a
defense for government officials "where it [has been] necessary to preserve their ability to serve
the public good or to ensure that talented candidates were not deterred by the threat of damages
suits from entering public service." Wyatt, 504 U.S. at 167, 112 S. Ct. 1827.
In detennining whether an official is entitled to qualified immunity, courts must consider
whether the facts alleged, taken in the light most favorable to the plaintiff, (1) allege a violation
of a constitutional right and (2) whether that right was clearly established at the time of the
alleged misconduct. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d

565 (2009).

Courts have discretion to detennine which of these questions to address first.

Pearson, 555 U.S. at 236, 129 S. Ct. 808. The Fifth Circuit has recognized that Section 1983

claims against public officials are subject to a heightened pleading requirement; a plaintiff is
required to assert "claims of specific conduct and actions giving rise to a constitutional
violation." See Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).
"On a motion for summary judgment based on qualified immunity, the burden falls on
the plaintiff to rebut the defense 'by establishing that the official's allegedly wrongful conduct
violated clearly established law and that genuine issues of material fact exist regarding the
reasonableness of the official's conduct.''' Samadian v. Meade, No. 12-10090, 2012 WL
5177373, at *1 (5th Cir. Oct. 19,2012) (per curiam) (quoting Gates v. Tex. Dept. ofProtective &
Regulatory Servs" 537 F.3d 404, 419 (5th Cir. 2008)).

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The Court examines Plaintiffs Section 1983 claims against Sharp in his individual
capacity for (a) false arrest, (b) excessive force, (c) malicious prosecution, and (d) free speech
violations in light of the foregoing standard.

a. False Arrest
First, Sharp argues he is entitled to qualified immunity on Plaintiffs false arrest claim
because he had probable cause to arrest Plaintiff, and alternatively, that even if he did not have
probable cause, he reasonably but mistakenly concluded that probable cause was present.
For an arrest to be lawful, it must be supported by probable cause. Flores v. City of
Palacios, 381 F.3d 391,402 (5th Cir. 2004) (citing Hinshaw v. Doffer, 785 F.2d 1260, 1266 (5th

Cir. 1986)). "Probable cause exists when the totality of facts and circumstances within a police
officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude
that the suspect had committed or was committing an offense." United States v. Levine, 80 FJd
129, 132 (5th Cir. 1996).
A police officer has qualified immunity if he "reasonably but mistakenly conclude[s] that

probable cause is present." Hunter v. Bryant, 502 U.S. 224,227, 112 S. Ct. 534, 116 L. Ed. 2d
589 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d
523 (1987)). Based on this standard, if Sharp could reasonably have believed Plaintiffs arrest to
be lawful in light of the clearly established law at the time, then Sharp is entitled to qualified
immunity.
The Court first notes with respect to Plaintiffs false arrest claim that it is unclear from
the facts alleged exactly when Sharp arrested Plaintiff. Sharp initially contended that he arrested
Plaintiff at the scene of the potential kidnapping. However, now, the parties agree that Sharp
handcuffed Plaintiff at the scene, but then removed the handcuffs, told Plaintiff she was not

10

under arrest, and advised her to leave the scene. Thus, the parties are in agreement that the arrest
did not occur at the scene of the potential kidnapping. Plaintiff alleges that the arrest occurred at
the sheriffs department after she filed the misconduct complaint against Sharp. Sharp does not
directly address this in his arguments, but does maintain that he signed an affidavit against
Plaintiff after she filed the misconduct complaint against him.
Plaintiff contends that Sharp is not entitled to qualified immunity on her false arrest claim
because Sharp's conduct violated clearly established law and genuine disputes of material fact
exist concerning the reasonableness of Sharp's conduct. Plaintiff argues that Sharp had no
probable cause to arrest her or detain her at the scene in connection with the potential
kidnapping, and that that the lack of probable cause is evident in that (1) Sharp had determined
even from the time he arrived on the scene that Cassandra was being untruthful and no potential
kidnapping had taken place, (2) nothing anyone said or done suggested that Plaintiff was
connected to a kidnapping, and (3) Plaintiff had no information she was required to share with
Sharp.
These three arguments are not well taken. First, although it is noted in the investigation
report concerning the incident that Sharp had called his commanding officer, James Lindsey, to
inform him that Cassandra was not being truthful about the kidnapping, the report also notes that
Lindsey advised Sharp that the sheriff s department could not do anything until they found out
what was going on. Thus, it appears that Sharp was there to find out what was going on. In light
of the fact that Sharp was not allowed to enter the mobile home, he would have had considerable
difficulty finding out what was going on without asking some questions to those on the premises.
Plaintiff next argues that nothing anyone said or did suggested that Plaintiff was connected with
a kidnapping. However, this argument is similarly unpersuasive, as Plaintiff was by her own

11

admission resistant to questioning and determined to leave the scene despite Sharp's request that
she remain for further questioning. Finally, Plaintiff argues that she had no information she was
required to share with Sharp. The Court finds this argument is also not well taken. If Sharp had
arrested Plaintiff at the scene, the Court's inquiry would end here. However, as stated, it is
undisputed that Sharp did not arrest Plaintiff at the scene, and that any arrest of Plaintiff was
effected after Plaintiff voluntarily came to the sheriffs department to file a misconduct
complaint against Sharp. Plaintiff contends that it is evidence of lack of probable cause that
Sharp did not arrest her until he allegedly used excessive force on her at the scene, everyone left
the scene, Sharp determined any kidnapping allegations were false, and Plaintiff filed her
misconduct complaint against Sharp. Taking Plaintiffs allegations as true, genuine disputes of
fact exist concerning whether Sharp lawfully arrested Plaintiff. The Court notes that Plaintiff s
allegations that she was told she was "not under arrest" and was not read her Miranda rights
present factual questions concerning the validity of the arrest itself. Therefore, because genuine
disputes of material fact exist as to what occurred between Sharp and Plaintiff which must be
resolved before the Court can determine whether Sharp is immune from suit on Plaintiffs false
arrest claim, Sharp's motion for qualified immunity [11] is denied on grounds of evidence
sufficiency. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 133 L. Ed. 2d 773

(1996); Hunter v. Bishop, 51 F. App'x 482, 2002 WL 31318797, at *1 (5th Cir. 2002) (per
curiam).
b. Excessive Force

Sharp next argues that he is entitled to qualified immunity on Plaintiff s excessive force
claim against him. Excessive force claims should be analyzed under the Fourth Amendment and
its "reasonableness" standard. Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir.

12

1998) (citing Graham v. Connor, 490 U.S. 386,395,109 S. Ct. 1865,104 L. Ed. 2d 443 (1989».
To succeed on an excessive force claim, the plaintiff must show "(1) an injury (2) which resulted
directly and only from the use of force that was clearly excessive to the need and (3) the force
used was objectively unreasonable." Williams v. Bramer, 180 F.3d 699, 703, clarified, 186 F.3d
633, 634 (5th Cir. 1999). To succeed on an excessive force claim, the plaintiff must demonstrate
that he "suffered at least some form of injury" from the defendant's actions that is more than de

minimis. Glenn v. City o/Tyler, 242 FJd 307,314 (5th Cir. 2001) (quotation marks omitted).
The degree of injury necessary to meet this requirement is related to the amount of force that was
constitutionally permissible under the facts of the case. Williams v. Brammer, 180 F.3d 699,
703-04 (5th Cir. 1999).
Plaintiff argues that (1) a medical injury occurred (2) during the altercation with Sharp
(3) which resulted directly and only from a use of force that was clearly excessive. Continuing
to assume Plaintiffs factual allegations are true, Plaintiff, after being told she was under arrest
for disorderly conduct, expressed her desire to leave the scene, got in her car and was attempting
to close the driver door so that she could leave when the car door inadvertently shut on Sharp's
finger, injuring it. She was trying to get up and exit the car when Sharp grabbed her clothes and
tried to choke her and then forced her down on the ground, planted his knee in her chest, and
placed handcuffs on her wrists.

Taking Plaintiffs factual allegations as true, she suffered

injuries as a result of these incidents.
First, with respect to whether Plaintiff has shown that a medical injury occurred, the
Court notes that Plaintiff claims she suffered a wide range of injuries as a result of the alleged
incidents, including shoulder sprain, arm sprain, bruised chest, a scratch on her chin, body and
back pain, and blood in her urine. However, Plaintiffs medical records show that although

13

Plaintiff went to the Oktibbeha County Hospital complaining of pain from an assault, the
medical examination revealed only that she had some presence of arthritis; she had no fracture
and no dislocation of bone, and she was not in acute distress.
Even if the Court assumes that Plaintiff has shown she suffered an injury, she fails to
satisfy the second prong of her excessive force claim that any injury she suffered resulted
directly and only from the use of force that was clearly excessive to the need. 7 Plaintiff argues
that the force was unreasonable because Sharp had told his commanding officer upon arriving on
the scene of the potential kidnapping that Cassandra was not being truthful about the kidnapping.
This line of argument has already been addressed earlier and is not well taken. Plaintiff has not
shown that even if force was deployed against her how such force was unreasonable under the
Fourth Amendment. "The right to make an arrest necessarily carries with it the right to use some
degree of force or threat thereof to effect it." Huang v. Harris County, 264 F.3d 1141,2001 WL
822534, at *9 (5th Cir. 2001) (per curiam) (citing Graham, 490 U.S. at 396, 109 S. Ct. 1865).
Courts look to the facts of each particular case to determine whether any force used was
resaonable. See id Based on all the foregoing, the Court finds that Plaintiff has failed to allege a
violation of her Fourth Amendment right to be free from excessive force. Therefore, Sharp's
motion for qualified immunity is granted as to this claim.

c. First Amendment Free Speech
Sharp next argues that he is entitled to qualified immunity on Plaintiff s First
Amendment free speech claim. In this analysis, the Court considers whether the facts alleged,
taken in the light most favorable to Plaintiff allege a violation of a First Amendment right to free

7 Sharp maintains that during an interview with the investigating officer, the two adult witnesses to the
events, Cassandra Tate and Derek Box, stated that Sharp performed a standard take-down maneuver and that
Plaintiff suffered no injury as a result. However, Sharp has not attached sworn statements from these two
individuals verifying this information. Accordingly, the Court does not consider this in its analysis.

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speech, and whether that right was clearly established at the time of the alleged misconduct. See
Saucier, 533 U.S. at 200, 121 S. Ct. 2151.

The First Amendment provides, in relevant part, that "Congress shall make no law ...
abridging the freedom of speech ...." U.S. CONST. AMEND. I. Adverse government action
taken in retaliation for the exercise of protected speech violates the First Amendment. See
Colson v. Grohman, 174 F .3d 498 (5th Cir. 1999). The validity of a First Amendment claim may

depend on whether probable cause exists for the arrest. "If [probable cause] exists, any argument
that the arrestee's speech as opposed to her criminal conduct was the motivation for her arrest
must fail, no matter how clearly that speech may be protected by the First Amendment." Mesa v.
Prejean, 543 F.3d 264, 273 (5th Cir. 2008).

Plaintiff makes two factual allegations with respect to her First Amendment claim. First,
Plaintiff alleges that she was "entitled to express her First Amendment right to Free Speech. She
was being questioned and [Plaintiff] gave [Sharp] her answer. [Sharp] does not have to agree
with the answer [given]." Pl.'s Answer to Sharp's Supplement to Mot. for Qualified Immunity
[24] at 6. It is not clear to this Court from Plaintiff's allegations and arguments what, if any,
constitutionally protected speech she was engaged in at the time of the alleged circumstances. It
is essential to know what is the alleged content or subject matter of the speech in order to analyze
whether that speech is protected by the Constitution. Thus, this allegation is not helpful to
Plaintiff's allegations concerning a First Amendment free speech violation.
Second, Plaintiff alleges that she exercised her right to remain silent when Sharp
questioned her and was arrested in retaliation for remaining silent. The right to remain silent
derives from the Fifth Amendment, not the First Amendment, and thus, allegations concerning a
right to remain silent similarly are not helpful to her allegations of a First Amendment claim.

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Because Plaintiff has failed to allege a First Amendment free speech claim, Sharp is entitled to
qualified immunity on Plantiffs First Amendment free speech claim.

d. Malicious Prosecution
Finally, Sharp argues that he is entitled to qualified immunity on Plaintiffs malicious
prosecution claim. Sharp contends that as a matter of law Plaintiffs malicious prosecution claim
must fail because no malicious prosecution claim is viable if brought under Section 1983. This
argument is not well taken. The Fifth Circuit has recognized that "malicious prosecution claims
can fall under the umbrella of the Fourth Amendment and may be actionable under [Section]

1983." See Price v. Roark, 256 F.3d 364, 370 (5th Cir. 2001) (citing Piazza v. Mayne, 217 F.3d
239, 245 (5th Cir. 2000)). To succeed on a Section 1983 malicious prosecution claim, Plaintiff
must show that she was exposed to an unreasonable search or seizure in violation of the Fourth
Amendment. See Albright v. Oliver, 510 U.S. 266, 275, 114 S. Ct. 807, 127 L. Ed. 2d 114
(1994).
Plaintiff argues that her malicious prosecution claim is viable because her right against
malicious prosecution was not standing alone but derived from her Fourth Amendment right to
be free from unreasonable searches and seizures. Plaintiff argues in support that "[h]er arrest
was a product of her complaint against [Sharp] for using excessive force against her, and causing
her injury" and that after her arrest "[Sharp] continued to prosecuted [sic] [Plaintiff] without a
reasonable basis or probable cause for such a prosecution." Pl.'s Mem. Br. Opp'n to Sharp's
Mot. Qualified Immunity [18-1] at 5.
The Court has determined that genuine disputes of material fact exist concerning whether
Sharp had probable cause to arrest Plaintiff for disorderly conduct, and otherwise as to what
occurred between Sharp and Plaintiff. These genuine disputes must be resolved before the Court

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can detennine whether Sharp is immune from suit on Plaintiffs malicious prosecution claim.
Thus, the Court finds that Sharp's motion for qualified immunity [11] should be denied as to the
malicious prosecution claim based on issues of evidence sufficiency. See Behrens, 516 U.S. at
313,116 S. Ct. 834; Hunter, 2002 WL 31318797, at *1.
E. Conclusion

Overall, the Court finds that genuine disputes of material fact exist concerning Plaintiff s
false arrest claim and malicious prosecution claim against Sharp that preclude summary
adjudication. These genuine disputes must be resolved before the Court can detennine whether
Sharp is immune from suit on these two claims. Thus, the Court finds that Sharp's motion for
qualified immunity [11] should be DENIED as to the false arrest claim and the malicious
prosecution claim on evidence sufficiency grounds.
The Court further finds that no genuine disputes of material fact exist with respect to
Plaintiffs excessive force claim and First Amendment free speech claim against Sharp. Thus,
Sharp's motion for qualified immunity [11] should be GRANTED as to Plaintiffs excessive
force claim and First Amendment free speech claim. To the extent Plaintiffs excessive force
claim and First Amendment free speech claim are asserted against Sharp, the same are
DISMISSED.
A separate order in accordance with this opinion shall issue this day.
THIS, the~day of February, 2013.

SENIOR JUDGE

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