Tate v. Sharp et al

Filing 88

MEMORANDUM OPINION re 87 Order on Motion for Summary Judgment, Order on Motion to Bifurcate, Order on Motion to Amend/Correct, Order on Motion to Strike, Order on Motion to Dismiss. Signed by Senior Judge Glen H. Davidson on 4/21/14. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN 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

On December 27, 2011, Plaintiff Annie Tate ("Plaintiff') filed suit against Officer Rick
Sharp, individually and in his official capacity ("Defendant Sharp"); Oktibbeha County; and the
Oktibbeha County Sheriffs Department. Plaintiff 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
committed as a result of policies and customs of Oktibbeha County and the Oktibbeha County
Sheriff s Department.
Presently before the Court in this civil rights action are a plethora of motions: a motion
for summary judgment [67] filed by Defendants Oktibbeha County and Oktibbeha County
Sheriff s Department; a motion to bifurcate [72 & 76] filed by Plaintiff; a motion for summary
judgment [73, 74, & 75] filed by Plaintiff; a motion to strike certain motions [78] filed by
Defendants Sharp, Oktibbeha County, and Oktibbeha County Sheriffs Department; and a

I Plaintiff has filed two identical motions to bifurcate liability and damages: one styled as "motion to
bifurcate" [72] and one styled as "second motion to amend/correct motion to bifurcate" [76]. The Court will refer to
these two identical motions throughout this opinion as Plaintiffs motion to bifurcate.

2 Plaintiff has filed three identical motions for summary judgment: one styled as "motion for summary
judgment" [73], one styled as "fITSt motion for summary judgment" [74], and one styled as "first motion to
amend/correct motion to bifurcate" [76]. The Court will refer to these three identical motions throughout this
opinion as Plaintiff s motion for summary judgment.

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renewed motion to dismiss [79] this action for failure to comply with Court Order filed by
Defendants Sharp, Oktibbeha County, and Oktibbeha County Sheriffs Department. 3 These
matters are ripe for review, and the Court is ready to rule.

A. Motion to Strike
First, the Court addresses the motion to strike [78] filed by Defendants Sharp, Oktibbeha
County, and Oktibbeha County Sheriffs Department (collectively, "Defendants"), wherein
Defendants request that the Court strike certain motions filed by Plaintiff after the motion
deadline imposed by the Court.
On September 17, 2013, the United States Magistrate Judge assigned to this cause

entered an Order [51] granting Defendants' motion to extend the case management deadlines and
imposing a new motions deadline of December 6, 2013. On January 8, 2014--more than 30
days after the motion deadline-Plaintiff filed her motion to bifurcate liability and damages [72]
and her motion for summary judgment [73]. Plaintiff has not filed a response to the motion to
strike within the time allotted; this is grounds to grant Defendants' motion to strike as unopposed
under the Court's local rules. See L. UNIF. CIV. R. 7(b)(3)(E). The Court further notes that
"[a]ny nondispositive motion served beyond the motion deadline imposed in the Case
Management Order may be denied solely because the motion is not timely served." See L. UNIF.
CIV. R. 7(b)(1l). For these reasons, the Court grants Defendants' motion to strike Plaintiffs
motion to bifurcate.4

3 Also pending before the Court are the following: a motion to strike [69] Plaintiff's designated experts
filed by Defendants Sharp, Oktibbeha County, and Oktibbeha County Sheriff's Department, as well as a motion [77]
in opposition to Defendants' motion to strike Plaintiff's designated experts filed by Plaintiff. The Court will rule on
those motions at a later date.
4 The Court notes that even if it had reached the merits of the untimely filed motion to bifurcate [72 & 76],
the Court would have denied the motion based on conservation of resources and judicial efficiency.

2

The Court denies Defendants' motion to strike Plaintiffs untimely filed motion for
summary judgment, but finds that Plaintiff s motion for summary judgment must be denied on
the merits, as explained below in "Section C. Motions for Summary Judgment."

B. Renewed Rule 37 Motion to Dismiss
The Court now turns to the merits of Defendants' renewed motion to dismiss [79] this
case for failure to comply with Court Order.
While merits-discovery was stayed pending the Court's ruling on Defendant Sharp'S
motion for qualified immunity [11], Plaintiff filed a motion to compel [14] discovery responses
from Defendants. The United States Magistrate Judge denied this motion, because Plaintiff had
prematurely served merits-discovery on Defendants prior to the attorneys' discovery conference
and without otherwise seeking leave to do so-in violation of the rules of the Court. The Court
then entered an Order [25] and opinion [26] dismissing Plaintiffs excessive force claim and First
Amendment free speech claim against Defendant Sharp on qualified immunity grounds,
sustaining all other claims against Defendant Sharp, and lifting the stay on merits-discovery.
Subsequently, the Magistrate Judge set a Rule 16.1 telephonic case management
conference to be initiated by Plaintiffs counsel and advised counsel for the parties to send in
their confidential settlement memoranda and proposed case management order by March 25,
2013.

Plaintiffs counsel did not initiate the conference, nor did he submit a confidential

settlement memorandum or proposed case management order. Therefore, the Magistrate Judge
entered an Order [31] sanctioning Plaintiffs counsel $100.00 and also entered a Case
Management Order [32] setting pretrial deadlines in the case.
On June 19, 2013, Plaintiffs counsel filed a motion [41] for a protective order to
continue her deposition and to continue the trial due to the election of Plaintiffs counsel as

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mayor of the City of Jackson. The Magistrate Judge entered an Order [42] granting Plaintiffs
request to continue her deposition and ordering Plaintiff to file a motion to substitute counsel
and/or to allow counsel to withdraw within fourteen days of the Order. The undersigned entered
a separate Order [43] denying Plaintiffs request for a continuance of the trial date, as the trial
setting allowed adequate time for preparation and substitution of counsel, if deemed appropriate.
On July 22, 2013, Defendants filed a motion to compel [44] Plaintiff to appear at her
deposition and to more fully respond to discovery, as Plaintiff had failed to comply with the
Court's fourteen-day deadline to file a motion to substitute counsel or to allow counsel to
withdraw. Plaintiff did not respond to the motion to compel. The Magistrate Judge entered an
Order [47] granting the unopposed motion to compel and ordered Plaintiff to appear for her
deposition within twenty-eight days and to serve supplemental responses to the interrogatories
referenced in the motion to compel within fourteen days. The Magistrate Judge declined to
impose sanctions, but cautioned that if Plaintiff failed to comply with the Order or otherwise
failed to cooperate with discovery, sanctions would likely be imposed.

Meanwhile, the

Magistrate Judge entered an Order [50] denying a motion for Plaintiffs new attorney to appear

pro hac vice, as the application did not comport with the rules of the Court. The Magistrate
Judge also granted Defendants' request to extend the case management deadlines.
Subsequently, Defendants filed a motion to dismiss [52] the case pursuant to Rule 37
based on Plaintiffs continued failure to cooperate in discovery. Rather than filing a response to
Defendants' motion to dismiss [52], Plaintiff filed a motion to dismiss [55] Defendants' motion.
Defendants subsequently filed a reply in support of their motion to dismiss [52]. On October 21,
2013, this Court entered an Order [61] and memorandum opinion [62] granting Defendants'
motion to dismiss in part, finding that Defendants had suffered prejudice due to Plaintiff's delays

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and non-cooperation in discovery, warning Plaintiff and her counsel that although the Court
would not dismiss the case at that time, further failure to comply with orders and deadlines
would result in dismissal of the case. The Court further ordered Plaintiffs counsel to reimburse
Defendants' counsel $1,134.50 for the reasonable expenses caused by Plaintiff's failure to obey
the Court's Orders.
After the Court entered its Order imposing sanctions and instructing Plaintiff to cooperate
in further discovery, Defendants and Plaintiff noticed the deposition of Plaintiff; Defendant
Defendant Sharp filed a notice of service of supplemental discovery responses to Plaintiff; and
Plaintiff filed a notice of service of Plaintiffs additional medical records to Defendants. See
Notices [63, 64, 66, & 84].
On January 20, 2014, Defendants filed a renewed motion to dismiss [79] this case for

Plaintiffs counsel's failure to comply with the Court's Order [61]. Specifically, Defendants
maintain that Plaintiffs counsel have not paid the $1,134.50 ordered to be paid to Defendants'
counsel in reimbursement for reasonable expenses caused by Plaintiffs past failure to obey the
Court's Orders. Defendants further maintain that Plaintiff's untimely filing of seven motions
after the Court's motion deadline constitutes further proof of non-compliance with the Court's
Orders. For these reasons, Defendants renew their request for dismissal pursuant to Rule 37 of
the Federal Rules of Civil Procedure. Plaintiff has not filed a response, and the time for response
has now passed. Accordingly, this matter is ripe for review.
A district court has the inherent power "to control its docket by dismissing a case as a
sanction for a party's failure to obey court orders." Gonzales v. Trinity Marine Grp., Inc., 117
F.3d 894, 898 (5th Cir. 1997) (internal citations omitted). "Rule 37 empowers the district court
to compel compliance with Federal discovery procedures through a broad choice of remedies and

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penalties." Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172 (5th Cir. 1977). Rule 37
allows a district court to impose the following sanctions: (1) the court may order that designated
facts be taken as true in favor of the party seeking compliance with discovery, FED. R. CIV. P.
37(b)(2)(A)(i); (2) the court may enter an order refusing to allow the noncomplying party to
support or oppose designated claims or defenses, or prohibiting the party from entering
designated matters in evidence, FED. R. CIY. P. 37(b)(2)(A)(ii); (3) the court may enter an order
striking pleadings or parts thereof, or staying further proceedings until the party obeys the order,
FED. R. CIY. P. 37(b)(2)(A)(iii), (iv); (4) the court may enter an order treating as contempt the
failure to obey any orders,5 FED. R. CIY. P. 37(b)(2)(A)(vii); (5) the court may require the party
to pay the reasonable expenses, including attorney's fees, caused by the party's failure to obey
the court's orders, FED. R. CIY. P. 37(C); (6) the court may enter an order dismissing the action
or proceeding in whole or in part, FED. R. CIV. P. 37(b)(2)(A)(v); and (7) the court may render a
default judgment against the noncomplying party, FED. R. CIY. P. 37(b)(2)(A)(vi).
Rule 37 of the Federal Rules of Civil Procedure provides in pertinent part:
(b) Failure to Comply with a Court Order.

(2) Sanctions Sought in the District Where the Action is
Pending.

(A) For Not Obeying a Discovery Order. If a party
... fails to obey an order to provide or pennit discovery, ..

5 The exception to this is that the court may not enter an order treating as contempt the failure to obey "an
order to submit to a physical or mental examination." See FED. R. ClY. P. 37(b)(2)(A)(vii).

6

· the court where the action is pending may issue further
just orders. They may include the following:

(v) dismissing the action or proceeding in
whole or in part[.]

FED. R. CW. P. 37(b)(2)(A)(v).
Dismissal of a case may be ordered as a sanction for violating a discovery order only
when (1) the refusal to comply results from willfulness or bad faith and is accompanied by a
clear record of delay or contumacious conduct; (2) the violation of the discovery order is
attributable to the client, as opposed to counsel; (3) the non-compliant party's conduct
substantially prejudices the opposing party; and (4) a less drastic sanction would not
substantially achieve the desired deterrent effect. F.D.I.C. v. Conner, 20 F.3d 1376, 1380-1381
(5th Cir. 1994) (citing Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990».
The Fifth Circuit has noted that a district judge should use the draconian remedy of dismissal
with prejudice only in extreme circumstances. See GrijJin, 564 F.2d at 1172; Roy v. ADM Grow
Mark, 211 F.3d 593, 2000 WL 329273, at *3 (5th Cir. 2000). "Deliberate, repeated refusals to

comply with discovery orders have been held to justify the use of this ultimate sanction."
Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (dismissal affirmed where plaintiff

three times refused to appear for a deposition); see also Jones v. La. State Bar Ass 'n, 602 F.2d 94
(5th Cir. 1979) (dismissal where plaintiff deliberately refused two orders to produce recordings
and documents he possessed); Emerick v. Fenick Indus., 539 F.2d 1379 (5th Cir. 1976) (default

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entered where defendant ignored three orders to produce documents). See also Pegues v. PGW
Auto Glass, L.L.C., 451 F. App'x 417,418,2011 WL 5903455, at *1 (5th Cir. 2011).

In the case sub judice, the Court cannot ascertain to what degree, if any, Plaintiff was
personally responsible for the repeated delays and failures to cooperate with discovery­
although it is apparent to the Court that Plaintiff s counsel is at least largely responsible for the
previous failures due to Plaintiff's counsel being elected mayor of the City of Jackson and Mays'
failure to file a proper motion for admission pro hac vice. However, the subsequent failure to
reimburse Defendants' counsel as ordered by the Court, and failure to file seven motions before
the motion deadline imposed by the Court in its Order extending the motion deadline [51],
cannot be attributed to these earlier possible reasons for delay and noncompliance, as Plaintiff's
counsel, Ali Muhammed ShamsidDeen, entered an appearance on July 31, 2013, and has been
representing Plaintiff ever since. Because the Court did not include a timeframe in its Order [61]
and memorandum opinion [62] directing Plaintiff to reimburse Defendants the $1,134.50 for
reasonable costs, the Court finds that Defendants' Rule 37 renewed motion to dismiss [79] shall
be DENIED WITHOUT PREJUDICE.

C Motions/or Summary Judgment
The Court now turns to the motions for summary judgment before it.
1. Summary Judgment Standard
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

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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 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). "However, a nonmovant may
not overcome the summary judgment standard with conc1usional 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 turns to the factual
background of this case.
2. Factual Background
The following facts are not in dispute: On February 20, 2010, Cassandra Tate
("Cassandra") contacted the Oktibbeha County Sheriff's Department to report the potential

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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,,).6 Defendant Sharp, a deputy sheriff
with the Oktibbeha County Sheriff's Department, responded to a call and drove out to Jackie's
mobile home to check on the welfare of the child; Cassandra also drove to the residence in her
own car. Upon arrival, Defendant Sharp knocked on the door of the residence, but no one came
to the door. At some point thereafter, Defendant Sharp called his commanding officer, James
Lindsey, and infonned him that he could not get anyone to answer the door. 7 Plaintiff, a then­
sixty-year-old female, drove up to Jackie's residence. (Jackie is Plaintiff's daughter.) Plaintiff
noticed Defendant 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. 8
Defendant 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. Defendant 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.
questions.

At some point, Plaintiff stopped responding to Defendant Sharp's

Plaintiff expressed her desire to leave the scene and got in her car to leave.

6 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.
7 In the investigation report concerning the incident, it is noted that upon Defendant 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 door at the location." Oktibbeha Cnty.
Sheriff's Office Incident Supplement Page [23-1] at 5. The report notes that Lindsey advised Defendant 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. Defendant Sharp reiterates in his deposition that he and Lindsey discussed that a
court order would be needed to either enter the residence or obtain a warrant to enter the residence and take
possession of the child. See Def. Sharp Dep. [82-1] at 13.

g

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

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Defendant 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 Defendant Sharp placed his hand on the post
between the front and back driver's doors and Defendant Sharp's little finger was inadvertently
hit in the door facing. 9
Plaintiff alleges that she tried to get out of the car when Defendant Sharp asked her to,
but was slow getting up. Plaintiff further alleges that Defendant 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.
Defendant Sharp's version of the facts is that Plaintiff was belligerent and refused to exit
her vehicle. Defendant Sharp maintains that time and time again, he asked Plaintiff to exit her
car, but she continued to refuse. Defendant Sharp further maintains that he informed Plaintiff
she was under arrest for disorderly conduct but still could not get her to exit the vehicle.
Defendant Sharp contends that he reached inside the car and took hold of Plaintiff's 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.

Defendant Sharp maintains that he succeeded in physically

unbuckled Plaintiffs seatbelt and removed Plaintiff from the car, and once out of the car,
Plaintiff continued to resist. Defendant Sharp then maintains that he "took" her to the ground
and handcuffed her in a standard police "take-down" procedure. Defendant Sharp maintains that
all this time Plaintiff was yelling and screaming at Cassandra, telling her it was all her fault, and
9 Althougb Defendant 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 that his little
finger, not his hand, was injured, and that the incident was not intentional. See Oktibbeha Cnty. Sheriffs Office
Incident Report [23-1] at 3; Def. Sharp Dep. [82-1] at 19, 20. This fact is not in dispute.

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stating that she had heart trouble. Defendant Sharp maintains that he arrested Plaintiff on the
scene.
Although the parties dispute the exact details of what occurred, the parties agree that
Defendant Sharp took Plaintiff to the ground and handcuffed her in what was apparently a take­
down maneuver; Plaintiff and her niece Cassandra pleaded with Defendant Sharp to remove the
handcuffs from Plaintiff s wrists and release her; and Defendant 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 Sheriffs Department to file a complaint against
Defendant Sharp for assault. Defendant Sharp says he went to get an X-ray ofhis hand.
At the sheriffs department, Plaintiff filed a misconduct report on Defendant Sharp
stating that Defendant 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
Defendant Sharp signed an affidavit against Plaintiff at some point subsequent to Plaintiffs
filing ofthe misconduct complaint against Defendant Sharp.
Plaintiff alleges that while she was making out the misconduct report, Defendant Sharp
showed up and told Lindsey to arrest Plaintiff. Plaintiff asked, "For what?" and Defendant Sharp
said he did not know. After Plaintiff finished making out the report, Plaintiff maintains that
Defendant 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.

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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 sheriff s 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. ld. at 2,4.
Plaintiff then returned to the sheriff s department to file charges against Defendant Sharp.
Defendant Sharp maintains that Plaintiff was told by Lindsey that no charges would be filed
against Defendant 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 Plaintiffs allegations against Defendant Sharp. Both Plaintiff and
Deputy Brett Watson, the investigating officer, testified at the hearing. Based on the testimony
and evidence presented, Judge Howard declined to issue an arrest warrant for Defendant Sharp,
and no further proceedings ensued in connection with Plaintiffs charge against Defendant Sharp
until Plaintiff commenced this civil suit.
Defendant Sharp and the Oktibbeha County Sheriff s 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. With
this factual background in mind, the Court turns to the motions before it.

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3. Analysis and Discussion
At the outset, the Court notes that Defendants Oktibbeha County and the Oktibbeha
County Sheriff's Department contend in their motion for summary judgment that Plaintiff has
named Oktibbeha County and Oktibbeha County Sheriff's Department as separate defendants.
However, as these defendants maintain, in Mississippi, a sheriff's department is not a separate
and distinct legal entity. See Brown v. Thompson,927 So. 3d 733, 737-38 (Miss. 2006). See
also Stewart v. Harrison Cnty. Sheriff's Dep't, No.1 :07CVl172-LG-JMR, 2009 WL 427113, at
*10 n.3 (S.D. Miss. Feb. 19, 2009); Miller v. Choctaw Cnty. Sheriff Dep 't, No. 1:04CV96, 2006
WL 662340, *2 (N.D. Miss. Mar. 13,2006); see also Darby v. Pasadena Police Dep't, 939 F.2d
311, 313 (5th Cir. 1991). Therefore, this suit is not properly against the Oktibbeha County
Sheriff's Department, as the same is not a proper governmental entity and thus must be
dismissed as a defendant. The Court now turns to the merits of the summary judgment motion,
noting that Plaintiff has brought four claims against Oktibbeha County: (1) false arrest, (2)
excessive force, (3) free speech, and (4) malicious prosecution.

a. Excessive Force Claim
Oktibbeha County contends that summary judgment is proper on the excessive force
claim against it. Plaintiff has offered no argument in support of sustaining her excessive force
claim against Oktibbeha County. For the following reasons, the Court finds that the excessive
force claim against Oktibbeha County must be dismissed on summary judgment.
Excessive force claims should be analyzed under the Fourth Amendment and its
"reasonableness" standard. Gutierrez v. City of San Antonio, Tex., 139 F.3d 441,446 (5th Cir.
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

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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). 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 of Tyler, 242
F.3d 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, 180 F.3d at 703-04.
In carefully reviewing Defendant Sharp's motion for qualified immunity and all the
parties' arguments and supporting documentation, the Court ruled that Plaintiff had failed to
support her Fourth Amendment excessive force claim against Defendant Sharp, because her
medical records showed she had no injury from the alleged altercation with Defendant Sharp,
and further, that even if Plaintiff had shown that she suffered an injury, she failed to satisfy the
second prong of her excessive force claim that any such injury resulted directly and only from
the use of force that was clearly excessive to the need. See Ct.'s Order [25] & Mem. Op. [26]
Granting & Denying In Part Def. Sharp's Mot. Qualified Immunity at 12-14. Therefore, the
Court dismissed Plaintiff's excessive force claim against Defendant Sharp.
"There is no authority for an award of damages against a governmental unit based on the
actions of particular officers when the factfmder has found that those officers inflicted no
constitutional harm." Greer v. Harris County, Tex., 537 F. App'x 546, 547 (5th Cir. 2013) (per
curiam) (citing City ofLos Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571,89 L. Ed. 2d
806 (1986)). As Oktibbeha County correctly argues, Plaintiffs facts alleged in support of her
excessive force claim concerned only Defendant Sharp. She has not identified actions of any
other officers in support of her excessive force claim. Therefore, this Court has no authority for

15

an award of damages against Oktibbeha County based on the alleged actions of Defendant Sharp,
when this Court has found that Defendant Sharp inflicted no excessive force against Plaintiff in
violation of the Fourth Amendment Thus, the excessive force claim against Oktibbeha County
must be dismissed on this ground.
The Court notes that the claim also fails on the ground that Plaintiff has made no
allegations, presented no argument, and attached no documentation supporting that Oktibbeha
County was the "moving force" behind the alleged constitutional injury. See Bd. of Cnty.
Comm'rs ofBryan Cnty., Okla. v. Brown, 520 U.S. 397,404, 117 S. Ct. 1382, 137 L. Ed. 2d 626

(1997) ("As our § 1983 municipal liability jurisprudence illustrates, ... it is not enough for a §
1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff
must also demonstrate that, through its deliberate conduct, the municipality was the "moving
force" behind the injury alleged. That is, a plaintiff must show that the municipal action was
taken with the requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights."). Thus, the claim fails on this ground,
as well.

For all the foregoing reasons, Plaintiffs remaining excessive force claim against

Oktibbeha County shall be dismissed.
b. First Amendment Free Speech Claim
Oktibbeha County further contends that summary judgment
Amendment free speech claim against it.

IS

proper on the First

Plaintiff has offered no argument in support of

sustaining her free speech claim against Oktibbeha County. For the following reasons, the Court
finds that the free speech claim against Oktibbeha County must be dismissed on summary
judgment

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The First Amendment provides in relevant part that "Congress shall make no law ...
abridging the freedom of speech ...." U.S. CONST. AMEND. 1. 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 ofa 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). In carefully considering Defendant Sharp's motion

for qualified immunity and the parties' arguments and attached documentation, the Court found
that Plaintiff had failed to allege a First Amendment free speech claim. Specifically, Plaintiff
failed to allege what constitutionally protected speech she was engaged in at the time of the
alleged circumstances, even though in such a claim, it is essential to know the alleged content or
subject matter of the speech in order to analyze whether that speech is protected by the
Constitution. Second, Plaintiffs only other allegation in support of her free speech claim was
that she exercised her right to remain silent when Defendant Sharp questioned her and was
arrested in retaliation for remaining silent. This allegation was not properly associated with her
First Amendment free speech claim, as the right to remain silent derives from the Fifth
Amendment, not the First Amendment. See Ct.'s Order [25] & Mem. Op. [26] Granting &
Denying In Part Def. Sharp's Mot. Qualified Immunity at 14-16. Thus, the Court dismissed the
First Amendment free speech claim against Defendant Sharp.
Because Plaintiff has failed to allege a First Amendment free speech claim, and because
this Court has no authority for an award of damages against Oktibbeha County based on a First
Amendment free speech claim against Defendant Sharp when that claim has been dismissed, see

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Greer, 537 F. App'x at 547 (citing Heller, 475 U.S. at 799, 106 S. Ct. 1571), the First

Amendment free speech claim against Oktibbeha County must be dismissed.
c. False Arrest Claim
Although Oktibbeha County concedes that Plaintiff has satisfied her burden to come
forward with sufficient evidence regarding a false arrest claim against Defendant Sharp,
Oktibbeha County maintains that no evidence has been presented that an Oktibbeha County
policy or custom was the moving force behind the alleged wrongful actions of Defendant Sharp.
Specifically, Oktibbeha County maintains that Plaintiff has not presented evidence that
Defendant Sharp or other officers were inappropriately trained or that there is a history of false
arrests by deputies including Defendant Sharp. Oktibbeha County further maintains that Plaintiff
has not presented evidence that Oktibbeha County has a history or of encouraging or condoning
arresting individuals without probable cause. Thus, Oktibbeha County maintains that summary
judgment is proper on Plaintiff's false arrest claim against Oktibbeha County.
Instead of filing a response to Oktibbeha County's motion for summary judgment,
Plaintiff has filed a motion for summary judgment. Plaintiff asks the Court to determine as a
matter of law that Defendants Oktibbeha County and Defendant Sharp are liable for false arrest
and contends that the evidence indicates that Defendant Sharp arrested Plaintiff unlawfully
without probable cause. Plaintiff presents three arguments in support. First, Plaintiff argues that
the arrest warrant contained an incorrect statement that Plaintiff "repeatedl y slammed [Defendant
Sharp]'s fingers in a car door thereby causing significant injury requiring medical attention," that
this statement was the basis for probable cause to arrest Plaintiff, and that without the statement,
Defendant Sharp had no probable cause to arrest Plaintiff. Second, Plaintiff maintains that
Defendant Sharp had knowledge not to proceed with his investigation before going to the site of

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the incident, because upon arriving on the scene, Defendant Sharp called Officer James Lindsey
and told him that Defendant Sharp found out Cassandra was not telling the truth about the matter
and could not get anyone to answer the door. As the Court stated in its memorandum opinion
ruling on Defendant Sharp's motion for qualified immunity, although the investigation report
concerning the incident states that Defendant 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 Defendant Sharp that the sheriff s department could not do
anything until they found out what was going on, and that Defendant Sharp apparently remained
on the scene to find out what was going on. Third, Plaintiff maintains that Defendant Sharp
confirmed in his deposition that he knew needed a court order to proceed. Therefore, Plaintiff
maintains that proceeding in spite of this knowledge is a prima facie case of false arrest.
With respect to Oktibbeha County, Plaintiff conclusively states in her motion for
summary judgment that Defendant Sharp was supported by Oktibbeha County in the alleged
false arrest of Plaintiff. Plaintiff offers no factual support for this statement, but even if she had,
mere support by Oktibbeha County of Defendant Sharp'S alleged acts is not sufficient to
demonstrate a false arrest claim against Oktibbeha County. Oktibbeha County can be liable
under Section 1983 "only for acts that are directly attributable to it through some official action
or imprimatur." See Kastner v. Lawrence, 390 F. App'x 311,315 (5th Cir. 2010) (quoting James
v. Harris County, Tex., 577 F.3d 612,617 (5th Cir. 2009) (internal quotation marks omitted)}. A

plaintiff must show "in addition to a constitutional violation, that an official policy promulgated
by the municipality's policymaker was the moving force behind, or actual cause of, the
constitutional injury." See id. at 315-16 (quoting James, 577 F.3d at 617). "That policy must be

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unconstitutional or adopted 'with deliberate indifference to the known or obvious fact that such
constitutional violations would result.' "Id. at 316 (quoting James, 577 F.3d at 617).
At most, Plaintiff has demonstrated genuine disputes of material fact that preclude
summary judgment on her false arrest claim against Defendant Sharp. However, Plaintiff has
failed to demonstrate a false arrest claim against Oktibbeha County, because she has presented
no evidence that a custom or policy of Oktibbeha County was the moving force behind the
alleged constitutional violation. Accordingly, Plaintiff's false arrest claim is dismissed insofar as
it is asserted against Oktibbeha County.
d. Malicious Prosecution Claim
Although Oktibbeha County concedes that Plaintiff has satisfied her burden to come
forward with sufficient evidence regarding a malicious prosecution claim against Defendant
Sharp, Oktibbeha County maintains that no evidence has been presented that an Oktibbeha
County policy or custom was the moving force behind the alleged wrongful actions of Defendant
Sharp. Specifically, Oktibbeha County maintains that Plaintiff has not presented evidence that
Defendant Sharp or other officers were inappropriately trained or that there is a history of
malicious prosecutions by deputies such as Defendant Sharp.

Oktibbeha County further

maintains that Plaintiff has not presented evidence that Oktibbeha County has a history of
encouraging or condoning prosecuting arrestees out of malice.

Thus, Oktibbeha County

maintains that summary judgment is proper on Plaintiff s malicious prosecution claims against
Oktibbeha County.
In Plaintiff's motion for summary judgment, Plaintiff asks this Court to determine as a

matter of law that Defendants Oktibbeha County and Defendant Sharp are liable for malicious
prosecution.

Plaintiff contends that in Defendant Sharp's deposition he admits facts that

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evidence retaliation leading to the malicious prosecution, specifically that Plaintiff was not under
arrest at the scene but was only arrested after the sheriffs department learned that Plaintiff
wanted to press charges against Defendant Sharp.

Thus, Plaintiff argues that malicious

prosecution is evidenced by Plaintiff not being in custody at the scene, but being arrested only
after Plaintiff had left the scene under her own recognizance, arrived at a different location, and
filed a complaint against Defendant Sharp.

Plaintiff maintains that there is also a dispute

between Defendant Sharp and Commander Watson as to having a prior injury to Defendant
Sharp's finger.
As with Plaintiff s arguments supporting her false arrest claim, in her arguments
supporting her malicious prosecution claim, Plaintiff has at most demonstrated genuine disputes
of material fact that preclude summary judgment on the malicious prosecution against Defendant
Sharp. However, as with her false arrest claim against Oktibbeha County, because she has
presented no evidence that a custom or policy of Oktibbeha County was the moving force behind
the alleged constitutional violation, Plaintiff has failed to demonstrate a malicious prosecution
claim against Oktibbeha County. Her conclusory statement that Defendant Sharp was supported
by Oktibbeha County in his alleged malicious prosecution of Plaintiff has no factual support and
is insufficient to demonstrate a malicious prosecution claim against Oktibbeha County.
Accordingly, Plaintiffs malicious prosecution claim is dismissed insofar as it is asserted against
Oktibbeha County.
For all the foregoing reasons, Oktibbeha County's motion for summary judgment [67]
shall be granted in all respects, as no genuine disputes of material fact remain with respect to any
of the claims asserted against Oktibbeha County. Accordingly, all claims against Oktibbeha

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County shall be dismissed, and Oktibbeha County and Oktibbeha County Sheriff's Department
shall be dismissed as parties.

D. Conclusion
In sum, the motion for summary judgment [67] filed by Defendants Oktibbeha County

and Oktibbeha County Sheriff's Department is GRANTED; all claims against Defendants
Oktibbeha County and Oktibbeha County Sheriff are DISMISSED; and Oktibbeha County and
Oktibbeha County Sheriff's Department are DISMISSED as parties. Further, the motion to
bifurcate [72 & 76] filed by Plaintiff Annie Tate is DENIED AND STRICKEN AS UNTIMELY
FILED; the motion for summary judgment [73, 74, & 75] filed by Plaintiff Annie Tate is
DENIED; the motion to strike certain motions [78] filed by Defendants Officer Rick Sharp,
Oktibbeha County, and Oktibbeha County Sheriffs Department is GRANTED IN PART AND
DENIED IN PART; and the renewed motion to dismiss [79] this action for failure to comply
with Court Order filed by Defendants Officer Rick Sharp, Oktibbeha County, and Oktibbeha
County Sheriff's Department is DENIED WITHOUT PREJUDICE.
The Court notes that the sanctions of $1,134.50 ordered to be paid by Plaintiff's counsel
to Defendant's counsel for the reasonable expenses caused by Plaintiff's failure to obey the
Court's Orders have not been paid as of the date of this opinion and corresponding order.
Subject sanctions are to be paid on or before Monday, May 19,2014.

& ;/ SJ~

A separate order }!l-accordance with this opinion shall issue this day.

THIS,t1l<".2L~OfAPri~2014.

SENIOR JUDGE

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