Hawn v. Hughes et al
Filing
113
MEMORANDUM OPINION re 112 Order on Motion for Summary Judgment. Signed by Senior Judge Glen H. Davidson on 9/8/14. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JOHN A. HAWN, BRYAN LINDSEY,
HEATHER SEAWRIGHT, RONNIE HORTON,
and MATILDA MOORE
PLAINTIFFS
CIVIL ACTION NO.: 1:13-cv-00036-GHD-DAS
v.
CHRISTOPHER (e.G.) HUGHES and
MICHAEL BERTHAY, in their individual capacities
DEFENDANTS
MEMORANDUM OPINION DENYING
DEFENDANT MICHAEL BERTHAY'S MOTION FOR SUMMARY JUDGMENT
Presently before the Court is a motion for summary judgment [85] filed by Defendant
Michael Berthay on the grounds of qualified immunity, failure to state a claim, and insufficient
evidence. Upon due consideration, the Court finds that the motion should be denied.
The Mississippi Department of Public Safety is an agency and arm of the State of
Mississippi. The Mississippi Highway Patrol is the unit of the Mississippi Department of Public
Safety charged with implementing the duties assigned to the Mississippi Department of Public
Safety, including enforcing all traffic laws, rules, and regulations of the State. MISS. CODE ANN.
§§ 45-1-2(2)(c); 45-3-21(1)(a). As such, the Mississippi Highway Patrol has law enforcement
jurisdiction over the majority of the State.
The Mississippi Highway Patrol employs sworn
officers to carry out its mission who must undergo rigorous training to attain their title; these
sworn officers are commonly known as state troopers. The agency executive of the Mississippi
Highway Patrol is the director.
Plaintiffs John A. Hawn, Bryan Lindsey, Heather Seawright, Ronnie Horton, and Matilda
Moore ("Plaintiffs") bring this action under 42 U.S.C. § 1983 against Defendant Christopher
(C.G.) Hughes, a former sworn officer of the Mississippi Highway Patrol, Troop F in New
1
Albany, Mississippi ("Officer Hughes"), in his individual capacity. Plaintiffs allege that Officer
Hughes violated their constitutional rights through the use of excessive force. Plaintiffs also
bring a § 1983 supervisory-liability claim against Defendant Michael Berthay, former director of
the Mississippi Highway Patrol ("Director Berthay"), in his individual capacity. Plaintiffs allege
that Director Berthay was deliberately indifferent to Plaintiffs' constitutional rights in the
training and supervision of Officer Hughes, particularly by refusing to terminate or otherwise
discipline Officer Hughes despite Director Berthay's knowledge of Officer Hughes' acts of
excessive force.
Plaintiffs aver that Director Berthay's failure to terminate or otherwise
discipline Officer Hughes proximately caused Plaintiffs to suffer constitutional violations by
Officer Hughes.!
Officer Hughes and Director Berthay have filed answers and affirmative
defenses, and Director Berthay has filed the present motion for summary judgment which is ripe
for review. The Court now turns to the factual background ofthe case.
A. Factual Background
a. Undisputed Facts
First, the Court considers the following undisputed facts: Director Berthay served as
director of the Mississippi Highway Patrol from March 2006 through June 2010. 2 Officer
Hughes was a sworn officer of the Mississippi Highway Patrol, Troop F, in New Albany,
Mississippi. 3 A video exists depicting an incident between Officer Hughes and nonparty Carol
I Plaintiffs also initially brought this action against Defendant the Commissioner of Public Safety for the
State of Mississippi, who was subsequently dismissed as a party to the action when the Court entered an Order [110]
and memorandum opinion [III] granting his motion to dismiss Plaintiffs' claims [89] against him and his motion to
dismiss [91] Defendant/Cross-Claimant Christopher (C.G.) Hughes' cross-claims against him pursuant to Rule
12(b)(I) of the Federal Rules of Civil Procedure, fmding that the claims and cross-claims were both unripe for
adjudication under Article III and barred by the Eleventh Amendment.
2
Pis.' 2d Am. Compl. [53] '1[2; Bertbay Aff. [85-1] '1[2; Bertbay Dep. [100-1] at 5-6.
3
Pis.' 2d Am. Compl. [53] '1[2; Bertbay's Answer [69] '1[2.
2
Wampler-George in the Lee County Jail that occurred in 2007. 4 Lee County Sheriff Jim Johnson
viewed the video and reported its existence to Jeff McNeece, then-Captain of Troop F of the
Mississippi Highway Patro1. 5 Troop F acquired a copy of the video. 6 Captain McNeece and
Major Ellis viewed the video. 7 At some point shortly after the incident, Director Berthay became
aware of the existence of the video, that the incident was between Officer Hughes and an arrestee
in the Lee County Jail, and that the use of force was involved. s In 2008, Director Berthay
transferred Officer Hughes out of enforcement in Troop F, but the transfer was not related to
Officer Hughes' alleged acts of force. 9 In June of 201 0, Director Berthay left his post as director
of the Mississippi Highway PatroL 10 Director Berthay never reported any incident of force by
Officer Hughes. II
b. Excessive Force Allegations--Officer Hughes
With the undisputed facts in mind, the Court now examines Plaintiffs' allegations of
excessive force against Officer Hughes. Plaintiffs allege that Officer Hughes committed several
acts of excessive force from October 2007 to July 2012, two such acts against nonparties to this
4 PIs.' 2d Am. Compl. [53] ~ 6; Berthay's Answer [69] ~ 7, 11. See 10/14/2007 Videos of Lee Cnty. Jail
Incident, Exs. E & F to PIs.' Resp. Opp'n to Berthay's MSJ [101].
s PIs.' 2d Am. Compl. [53] ~ 7; Berthay's Answer [69] ~ 7; Johnson Dep. [100-7] at 15.
6 PIs.' 2d Am. Compl. [53] ~ 7; Johnson Dep. [100-7] at 15; Ellis Dep. [100-10] at II; see Berthay Dep.
[100-1] at 10.
7
PIs.' 2d Am. CompL [53] ~ 7; Berthay's Answer [69] ~ 7.
g See PIs.' 2d Am. Compl. [53] ~ 7; Berthay Dep. [100-1] at 8-9. See a/so Miss. Dep't of Pub. Safety
Miss. Highway Safety Patrol Narrative Statement of Charges Against Officer Hughes [100-11] at 3 (the 2007
incident in the Lee County Jail "was reported to supervisors at the time").
9
PIs.' 2d Am. Compl. [53U 11; Berthay's Answer [69U 11.
10
PIs.' 2d Am. Compl. [53] ~ 2, 12; Berthay Aff. [85-1] ~ 2; Berthay Dep. [100-1] at 5-{).
II PIs.' 2d Am. Compl. [53] ~ 12; Berthay's Answer [69] ~ 12. See Miss. Dep't of Pub. Safety-Miss.
Highway Safety Patrol Narrative Statement of Charges Against Officer Hughes [100-11] at 3 (the 2007 incident in
the Lee County Jail "was reported to supervisors at the time, but amazingly and mysteriously, no action was taken").
3
case and five other acts against Plaintiffs.
Plaintiffs aver that despite Director Berthay's
knowledge of the first two alleged acts of excessive force by Officer Hughes, Director Berthay
failed to adequately train and supervise Officer Hughes, including tenninating or otherwise
disciplining him, and that Director Berthay's failures to do so proximately caused Plaintiffs to be
victims of subsequent acts of excessive force by Officer Hughes which occurred after Director
Berthay left office in June 2010.
i. Excessive Force During Director Berthay's Tenure
Plaintiffs allege that in 2007 after arresting nonparty Carol Wampler-George and taking
her to the Lee County Jail, Officer Hughes "used excessive force against [her] by throwing her to
the concrete floor, striking her face against the floor, stomping her head against the floor, and
kicking her.,,12 This incident is captured on two videos which are in the summary judgment
record. 13 Plaintiffs further allege that about two months later upon arriving at an arrest scene
where several Mississippi Highway Patrol officers had apprehended nonparty William T. Brann,
a driver who was intoxicated and possibly under the influence of drugs, Officer Hughes "used
excessive force against Brann's head, causing him permanent brain damage.,,14
11.
Excessive Force After Director Berthay's Tenure
Subsequently, Plaintiffs allege that they were each beaten severely by Officer Hughes.
Plaintiffs allege that while Officer Hughes was arresting Plaintiff Bryan Lindsey, Officer Hughes
"rammed [Plaintiff] Lindsey's head into a police vehicle[] and/or struck [him] in the face with a
12
Pis.' 2d Am. Compl. ~ 6.
13
See 10/14/2007 Videos of Lee Cnty. Jail Incident, Exs. E & F to PIs.' Resp. Opp'n to Berthay's MSJ
14
PIs.' 2d Am. Compl. [53] ~ 10.
[101].
4
flashlight, inflicting deep cuts on [his] head.,,15
Plaintiffs further allege that after stopping
Plaintiff Ronnie Horton, a fifty-five-year-old male, who had lost consciousness because of his
low blood pressure, Officer Hughes "beat him in the mouth, causing bleeding," inflicting
"serious pain in a disc in his neck, from which he still suffers.,,16 Plaintiffs aver that after
arresting Plaintiff Heather Seawright for driving under the influence and other charges and
bringing her into the Lee County Jail, Officer Hughes "str[uck] her in the face with his flashlight
and smash[ed] her head against a glass wall a[t] the jail.,,17 Plaintiffs further aver that Officer
Hughes stopped a car at a roadblock that contained passenger Plaintiff Matilda Moore, a sixty
three-year-old female, and asked her if she had had anything to drink; Plaintiff Moore responded
that she had consumed one glass of wine; and Officer Hughes then "took Plaintiff Moore to the
Lee County Jail, where he threw her up against the wall, inflicted substantial bruises to her body,
and threatened to break her arm," inflicting "substantial" injuries to her.18 Finally, Plaintiffs
allege that after Plaintiff John Hawn drove around a roadblock and onto Highway 178, Officer
Hughes "immediately drove his [Mississippi] Highway Patrol vehicle into the front of [Plaintiff]
Hawn's vehicle in order to stop [Plaintiff] Hawn,,;19 "[Plaintiff] Hawn's vehicle bumped slightly
into the rear of [Officer] Hughes' patrol vehicle,,;2o "[Officer] Hughes exited his vehicle and
savagely beat [Plaintiff] Hawn with a flashlight, knocking him unconscious and fracturing bones
IS
Id. ~ 14.
16
Id. ~ 16.
17
Id. ~ 18.
IS
Id. ~ 20.
19
Id. ~ 21.
20
I d.
5
in his face";21 "Officer Hughes then "directed [his subordinate Officer Jody Berryhill] to destroy
the videotape in [Officer] Hughes' patrol vehicle, which probably recorded the beating,,;22
"[Officer] Hughes smashed the front lights of [Plaintiff] Hawn's vehicle in order to make it
appear that [Plaintiff] Hawn had crashed his vehicle violently into the rear of the patrol
vehicle,,;23 Officer Hughes transported Plaintiff Hawn to the Lee County Jail, ~'where an
unknown person alerted medical authorities at North Mississippi Medical Center ('NMMC') of
Plaintiff Hawn's condition,,;24 and "Plaintiff Hawn was transported to NMMC, where he was
diagnosed with a fractured jaw and other substantial injuries.,,25
c. Supervisory Liability-Director Berthay
Finally, the Court examines Plaintiffs' supervisory-liability allegations against Director
Berthay. Plaintiffs allege that Director Berthay "made all decisions as to the discipline of all
officers, including not only terminations, but also minor actions, such as reporting an officer for
counseling or ordering Internal Affairs investigations.,,26 Plaintiffs further allege that despite
knowledge of Officer Hughes' 2007 beating of Wampler-George and likely knowledge of the
subsequent 2007 beating of Brann, Director Berthay never reported either incident to anyone.
Plaintiffs aver that after Director Berthay left his employment at the Mississippi Highway Patrol
in June of 2010, Officer Hughes "requested and was given a transfer back to the enforcement
21
I d.
22
I d. 122.
23
I d.
24Id.
2S
1 23.
Id.
26Id. 1 7.
6
division of' Troop F,27 where Officer Hughes continued his acts of excessive force, this time
against Plaintiffs Bryan Lindsey, Ronnie Horton, Heather Seawright, Matilda Moore, and John
Hawn. Plaintiffs maintain that after the beating of Plaintiff Hawn in July 2012, Mississippi
Highway Patrol Officer Jerome Collins observed the condition of Plaintiff Hawn's face and
notified Mississippi Highway Patrol Lieutenant James Brown, who "searched Troop F's files"
and for the first time "discovered the 2007 videotaped assault" on the arrestee in the Lee County
Jai1. 28 Plaintiffs allege that Lieutenant Brown notified then-Mississippi Highway Patrol Director
Donnell Berry of the existence of the video. 29 Plaintiffs further alleg~ that shortly thereafter
Officer Hughes threatened his girlfriend, who notified Mississippi Highway Patrol headquarters
of her knowledge of Officer Hughes' "repeated abuses of citizens and abuse of steroids," and
that the Mississippi Department of Public Safety "then directed an Internal Affairs' investigation
of [Officer] Hughes which resulted in" criminal charges against Officer Hughes; an intensive
criminal investigation by the FBI, "with the crucial evidence being" the 2007 video of the Lee
County Jail incident; a criminal information; and Officer Hughes' guilty plea to excessive force
against Wampler-George and subsequent conviction and sentence in federal court. 30
B. 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.
27
Id. ~ 13.
28
Id. ~ 25; Brown Dep. [100-3] at 16.
29
30
PIs.' 2d Am. Compl. [53] ~ 25.
Id. ~~ 26-27.
7
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. See 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).
It is axiomatic that in ruling on a motion for summary judgment "[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Tolan v.
Cotton, - - U.S. - - , - , 134 S. Ct. 1861, 1863, 188 L. Ed. 2d 895 (2014) (per curiam)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986)). Therefore, "[w]hen a defendant raises qualified immunity on summary judgment, the
court must 'adop[t] ... the plaintiff[s'] version of the facts' unless 'no reasonable jury could
believe it.' " Air Wis. Airlines Corp. v. Hoeper, - - U.S. - - , - , 134 S. Ct. 852, 868, 187
L. Ed. 2d 744 (2014) (quoting Scott v. Harris, 550 U.S. 372, 378-80,127 S. Ct. 1769, 167 L. Ed.
2d 686 (2007)). "[A] 'judge's function' at summary judgment is not 'to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.' "
8
Tolan, 134 S. Ct. at 1866 (quoting Anderson, 477 U.S. at 249, 106 S. Ct. 2505). With the
foregoing standard in mind, the Court turns to the summary judgment motion.
C. Analysis and Discussion
In his motion for summary judgment, Director Berthay argues that the § 1983
supervisory-liability claim against him should be dismissed because Plaintiffs have failed to state
a claim and present sufficient evidence to sustain the claim past summary judgment and because
Director Berthay is qualifiedly immune from suit. The Court examines first the merits and then
the qualified-immunity issue.
a. Merits of § 1983 Supervisory-Liability Claim
Director Berthay argues that Plaintiffs have failed to state a viable supervisory-liability
claim against him and further rely on unsupported and unsupportable conjecture and hypotheses.
For the reasons stated below, the Court finds these arguments are not well taken.
"Section 1983 provides a cause of action against any person who deprives an individual
of federally guaranteed rights 'under color' of state law." Filarsky v. Delia, - - U.S. - - ,
-, 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012) (quoting § 1983). "Anyone whose conduct is
'fairly attributable to the state' can be sued as a state actor under § 1983." See id., 132 S. Ct. at
1661; see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d
482 (1982). "When the complaint invokes § 1983, the plaintiff must allege with particularity all
material facts on which [she] contends [she] will establish [her] right to recovery, ...." Walker
v. Henderson, 239 F.3d 366, 2000 WL 1741736, at *1 (5th Cir. 2000) (Table) (quoting Morrison
v. City o/Baton Rouge, La., 761 F.2d 242, 244-45 (5th Cir. 1985) (quotation marks and citation
omitted».
9
"A supervisor not personally involved in the acts that allegedly deprived the plaintiff of
his constitutional rights is liable under § 1983 only if (1) the supervisor failed to train or
supervise the officers involved; (2) there is a causal connection between the alleged failure to
supervise or train and the alleged violation of [the plaintiffs] rights; and (3) the failure to train or
supervise constituted deliberate indifference to [the plaintiffs] constitutional rights." Estate of
Pollard v. Hood County, Tex., --- F. App'x ----, 2014 WL 4180809, at *5 (5th Cir. Aug. 25,
2014) (per curiam) (citing Estate ofDavis ex reI. McCully v. City ofN Richland Hills, 406 F3d
375, 381 (5th Cir. 2005)). "[D]eliberate indifference is a stringent standard of fault, requiring
proof that a[n] ... actor disregarded a known or obvious consequence of his action." Estate of
Davis, 406 F 3d at 381 (quoting Bd. of Comm 'rs ofBryan Cnty. v. Brown, 520 U.S. 397, 410,
117 S. Ct. l382, 137 L. Ed. 2d 626 (1997) (internal quotation marks omitted)). "Actions and
decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference and do not divest officials of qualified immunity." Id. (quoting Alton v.
Tex. A & M Univ., 168 F.3d 196, 201 (5th Cir. 1999)). A "pattern of similar constitutional
violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate
indifference for purposes of failure to train." Connick v. Thompson, -
U.S. - - , 131 S. Ct.
l350, 1360, 179 L. Ed. 2d 417 (2011) (quoting Bd. ofCnty. Comm'rs ofBryan Cnty., 520 U.S. at
409, 117 S. Ct. l382).
Although a plaintiff who seeks to mount a case for supervisory liability against an
individual under § 1983 is in for an uphill battle, the battle is not insurmountable; if it were, no
individual could ever be brought into court on a § 1983 supervisory-liability claim, thus
rendering the cause of action a nullity. For the reasons stated below, the Court finds that
Plaintiffs' § 1983 supervisory-liability claim survives summary judgment.
10
1.
Plaintiffs have shown that Director Berthay was Officer Hughes'
supervisor.
Director Berthay argues that he was not Officer Hughes' supervisor, because he was not
the sole individual responsible for disciplining sworn officers of the Mississippi Highway Patrol
and could not have controlled certain variables in the decision of whether to tenninate or
otherwise discipline Officer Hughes for these alleged acts. In making all reasonable inferences
in favor of Plaintiffs, as this Court must do on summary judgment, the Court finds that Plaintiffs
have adequately shown that Director Berthay, as the agency executive of the Mississippi
Highway Patrol, was Officer Hughes' supervisor for purposes of § 1983 supervisory liability.
The summary-judgment record fully supports that Director Berthay was the final word in the
Mississippi Highway Patrol on all disciplinary matters, including tennination of a sworn
officer;31 that Director Berthay was the agency official designated to impose penalties for a
sworn officer's act of physical violence;32 and that Director Berthay handled disciplinary matters
that were not resolved at a lower level "that reached [his] desk as a result.,,33
31 See id. ~ 7 (alleging that Director Berthay "made all decisions as to the discipline of all officers,
including not only terminations, but also minor actions, such as reporting an officer for counseling or ordering
Internal Affairs investigations"); Berthay's Mem. Br. Supp. MSJ [86] at 2 ("As director, Berthay was the final
decision making authority within the [Mississippi Highway] Patrol regarding matters of discipline and discharge.").
See also Berthay 2d Aff. [106-2]; [107] ~ 3-4 (when another officer was charged with "striking an arrestee with the
back [of] his hand," those charges were investigated, and after a review board concluded that the charges against the
trooper were founded, Director Berthay "signed a special order terminating the employment of that trooper on
September 11, 2008").
32 See Miss. Dep't of Pub. Safety-General Order 23/01 [85-2] at 1 ("This general order establishes
offenses and discipline concerning employees of [Mississippi Department of Public Safety] charged with a breach of
discipline or unsatisfactory performance of duty[,] and/or violations of law."), 4 (Group Three offenses include acts
of physical violence), 7 ("Penalties for Group Three Offenses shall be imposed by order of the Director of the Office
of the Mississippi Highway Safety Patrol ....").
33 See Berthay Aff. [85-1] ~ 3 ("As Director, I participated in making decisions only on disciplinary
matters that were not resolved at a lower level and that reached my desk as a result."); Berthay's Mem. Br. Supp.
MSJ [86] at 2 ("Berthayonly made decisions when matters of discipline were not resolved at a level below the level
of director.").
11
Director Berthay maintains that during his tenure there were "five levels of management"
and that he "require[ d] a supervisor to handle all use of force policies, to follow-up on use of
force policies, write a report regarding use of force policy, implementing use of force policy,
purchase tasers"; and that the supervisors "were supposed to be handling [force policies] and
anything that came out of it.,,34 However, Plaintiffs have submitted numerous exhibits refuting
Director Berthay's arms-length account of his managerial style, including deposition testimonies
of then-Assistant Director Donnell Berry, Captain Jeff McNeece, Major Bill Ellis, and
Lieutenant James Brown, all of which support Plaintiffs' allegation that Director Berthay had the
power to discipline and to terminate Officer Hughes and that Director Berthay demanded to
handle such disciplinary matters himself. 35 Lieutenant Brown testifies that "[Director] Berthay
was running everything" and "was in control of everything.,,36 Then-Assistant Director Berry
testifies that decisions to terminate or suspend or otherwise discipline troopers are "done by the
[director of the Mississippi Highway Patrol].,,37
Captain McNeece testifies that all of the
disciplinary actions in the patrol practice at that time had to be imposed by Director Berthay, as
director. 38 Captain McNeece further testifies that the 2007 incident in the Lee County Jail
surpassed the use-of-force complaints that Captain McNeece would handle; that a problem of
that "magnitude with a[ ] trooper" was "something that the [director] ha[d] to take care of'; that
Captain McNeece had expected Director Berthay to take action concerning the incident; and that
34
Berthay Aff. [85-1] ~ 3-4.
35
PIs.' Mem. Br. Supp. Resp. Opp'n to Berthay's MSJ [102] at 6.
36
Brown Dep. [100-3] at 25.
37
Berry Dep. [100-2] at 6.
38
McNeece Dep. [100-4] at 19-20.
12
if Captain McNeece had tried to handle it, he might have been fired for "jump[ing] command.,,39
Major Ellis testifies that after he viewed the video of the 2007 incident between Officer Hughes
and Wampler-George, he reported it to Director Berthay in accordance with "[Director
Berthay's] instructions from past for [Major Ellis] to call [Director Berthay] on incidents first,"
and second to Donnell Berry, the assistant director. 4o Then-Assistant Director Berry testifies that
"basically during [Director Berthay's] whole tenure" Director Berthay would not discuss issues
with Berry and had instructed some of the troopers to come directly to Director Berthay with
issues and not go through Berry.41 Similarly, Lieutenant Brown testifies that "[w]hen [Berry]
was sitting ... second to [Director] Berthay, a lot of things ... went around [Berry] and went
straight to [Director] Berthay because that's the way [Director] Berthay wanted it.,,42 The Court
finds that Plaintiffs have shown that Director Berthay was Officer Hughes' supervisor.
11.
Plaintiffs have shown that Director Berthay failed to train or supervise
Officer Hughes.
The Court further finds that Plaintiffs have shown on summary judgment that Director
Berthay failed to train or supervise Officer Hughes. It is undisputed that despite knowledge of
the 2007 incident in the Lee County Jail between Officer Hughes and Wampler-George, Director
Berthay never disclosed the incident to his superiors. Although a dispute of fact exists as to
whether Director Berthay ever actually watched the video of Officer Hughes' use of force
against Wampler-George,43 the summary judgment record is clear that in 2007 Director Berthay
39Id. at 19-20, 24, 31, 32.
40
Ellis Dep. [100-10] at 16.
41
Berry Dep. [100-2] at 17.
42
Brown Dep. [100-3] at 55.
43 See id. , 7 (alleging that after Major Ellis and Captain McNeece viewed the video, "[Major] Ellis
immediately notified [Director] Berthay, who traveled to Troop F headquarters in New Albany, Mississippi, and
13
was aware that the incident had occurred. Director Berthay testifies that shortly after the incident
Lee County Sheriff Jim Johnson informed him that an incident had occurred in the Lee County
Jail "involving [Officer] Hughes and ... an arrestee ... and the use offorce,,,44 and that Director
Berthay told Sheriff Johnson that Sheriff Johnson "need[ed] to get the [video] to somebody with
the district or get ahold of them ... and turn it over to the patrol and you also need to notify the
FBI" and that if a civil rights violation occurred in the Lee County Jail it was Sheriff Johnson's
responsibility to handle. 45 Director Berthay further testifies that he "advis[ed] [Major] Ellis that
they needed to look into it and if there was a video they needed to send somebody over to pick it
Up.',46
Major Ellis testifies that he reported the incident to Director Berthay, said he was
concerned about what was on the video, and that "[Director] Berthay needed to get somebody up
there to look at it.,,47 Making all reasonable inferences in favor of Plaintiffs, Director Berthay
was aware the incident between Officer Hughes and Wampler-George involved a serious act of
force by a sworn officer of the Mississippi Highway Patrol.
It is undisputed that despite
knowledge of the incident, Director Berthay never made a notation in Officer Hughes'
employment file, never ordered an internal affairs investigation, never took any action to
terminate or otherwise discipline Officer Hughes, and never reported the incident up to the
viewed the videotape which gave him personal knowledge of [Officer] Hughes' use of excessive force against
Wampler-George"); Berthay's Answer [69] ~ 11 ("It is expressly denied that [Director] Berthay ever viewed the
videotape"); Berthay Dep. [100-1] at 10 (testifying that he never asked to see the video); McNeece Dep. [100-4] at
18 ("[Director] Berthay viewed the tape in my office in the presence of me and Major Ellis"); Ellis Dep. [100-10] at
12 (testifying that Director Berthay viewed the video with Major Ellis and Captain McNeece at the New Albany
substation).
44 See Berthay Dep. [100-1] at 8-9 (testifying that Lee County Sheriff Jim Johnson had informed him at
some point during a meeting that "there was an incident involving [Officer] Hughes and somebody in the [Lee
County J]ail, of use of force.... [Lee County Sheriff Jim Johnson] advised that there was a use of force, but he said
he had it on video."); see id. at 11 (stating that he was aware there was some use of force).
45
Berthay Dep. [l00-1] at 9.
461d.
47
Ellis Dep. [100-10] at 11-12, 16.
14
Mississippi Department of Public Safety. Particularly striking are Director Berthay's statements
in his second affidavit that while he was in office, he did discipline another sworn officer of the
Mississippi Highway Patrol who was "charged with excessive force for striking an arrestee with
the back [of] his hand"; the investigation of that officer resulted in Director Berthay "sign[ing] a
special order terminating the employment of that trooper . . .
:.48
If anything, these statements
further strengthen Plaintiffs' position on summary judgment that Director Berthay failed to
discipline Officer Hughes despite knowledge of his acts of force in 2007 against WamplerGeorge in the Lee County Jail. In a narrative statement of charges filed against Officer Hughes
by Major Billy Mayes, commander of the Northern Traffic Enforcement Region of the
Mississippi Highway Patrol, Major Mayes states:
During the course of the investigation [into Officer Hughes], it ...
came to the attention of Department Management and Investigators
that [Officer] Hughes had used grossly excessive force against a
lady in custody in the Lee County [J]ail in 2007. This incident was
reported to supervisors at the time, but amazingly and
mysteriously, no action was taken. . .. The Department would be
negligent for discovering this incident and not taking appropriate
administrative action. There is absolutely no justification for this
behavior, in this context, by a sworn officer. 49
In addition, Plaintiffs have alleged that shortly after Officer Hughes' alleged beating of Brann
that resulted in permanent brain damage, Director Berthay transferred Officer Hughes out of
enforcement in Troop F, but did not note Officer Hughes' use of force as a reason for the
transfer. The Court finds that Plaintiffs have raised a dispute of fact that Director Berthay was
aware of the alleged Brann beating, as well. For all of the foregoing reasons, Court finds that
48
Berthay 2d Aff. [106-2]; [107] 1M[ 3-4.
49 Miss. Dep't of Pub. Safety-Miss. Highway Safety Patrol Narrative Statement of Charges Against
Officer Hughes [100-11] at 3.
15
Plaintiffs have adequately shown for purposes of summary judgment that Director Berthay failed
to adequately train or supervise Officer Hughes.
iii. Plaintiffs have demonstrated causation and deliberate indifference.
The Court further finds that Plaintiffs have demonstrated a causal connection between
Director Berthay's alleged failure to supervise or train Officer Hughes and the alleged violations
of Plaintiffs' constitutional rights, as well as that the alleged failure to train or supervise
constituted deliberate indifference to the constitutional rights of Plaintiffs. Plaintiffs aver that
"[i]n willful indifference to the rights of citizens to public safety, [Director Berthay] failed to
take any action against [Officer] Hughes or to take any step to protect citizens from the danger
[Officer] Hughes presented."so
Plaintiffs allege that Director Berthay "is jointly liable to
Plaintiffs for the injuries inflicted by [Officer] Hughes because [Director Berthay] was
deliberately indifferent to irrefutable evidence that [Officer] Hughes had engaged in an act of
excessive force and had a propensity for violence."Sl Plaintiffs aver that "[Director] Berthay's
failure to note [Officer] Hughes' record of violence in Mississippi Highway Patrol records left
[Officer] Hughes able to return to the enforcement division [of Troop F], and to repeatedly use
excessive force upon citizens, including Plaintiffs."s2 Director Berthay maintains that Plaintiffs
fail to demonstrate causation because Director Berthay left his post before any of the Plaintiffs
encountered Officer Hughes and because a jury would have to speculate as to different possible
outcomes if Director Berthay had initiated an investigation of the Lee County Jail incident. 53
However, the Court finds that Plaintiffs have raised disputes of fact that Director Berthay
50
PIs.' 2d Am. CompL [53J ~ 7.
51
See id. ~ 2.
52Id.
53
Berthay's Mem. Br. Supp. MSJ [86J at 11.
16
"disregarded a known or obvious consequence of his action," see Estate of Davis, 406 F.3d at
381; here, the "known or obvious consequence" was that Officer Hughes would continue "a
pattern of similar [alleged] constitutional violations" against other individuals following the 2007
Lee County Jail incident, see Connick, 131 S. Ct. at 1360.
If Director Berthay knowingly
disregarded this obvious consequence, then it follows that the "obvious consequence" of
continued acts of excessive force would occur. The Court is of the opinion that Plaintiffs have
demonstrated for purposes of summary judgment that Director Berthay was aware of alleged acts
of excessive force by Officer Hughes in 2007 involving Wampler-George and Brann and acted
with deliberate indifference to the same, and that this alleged deliberate indifference proximately
caused Officer Hughes' pattern of excessive force to continue with Plaintiffs.
Accordingly,
Plaintiffs' supervisory-liability claim against Director Berthay survives summary judgment on its
merits. The Court now turns to whether Director Berthay is nonetheless qualifiedly immune
from suit on the claim.
h. Qualified Immunity
State actors enjoy various protections from liability derived from the common law, such
as absolute or qualified immunity. See Filarsky, 132 S. Ct. at 1660, 1662 (it is well settled that
"common law protections well grounded in history and reason had not been abrogated by covert
inclusion in the general language of § 1983") (internal quotation marks and citations omitted).
"An official sued under § 1983 is entitled to qualified immunity unless it is shown that the
official violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct." PlumhojJv. Rickard, - - U.S. - - , - - , 134 S. Ct. 2012, 2023, 188 L.
Ed. 2d 1056 (May 27,2014) (citing Ashcroft v. al-Kidd, 563 U.S. - - , - - , 131 S. Ct. 2074,
2080, 179 L. Ed. 2d 1149 (2011) (quotation marks omitted)); Truvia v. Connick, --- F. App'x ---,
17
2014 WL 3888231, at *6 (5th Cir. Aug. 8,2014) (per curiam) (citing Attebeny v. Nocona Gen.
Hosp., 430 F.3d 245, 253 (5th Cir. 2005». "When a defendant invokes qualified immunity, the
burden is on the plaintiff to demonstrate the inapplicability of the defense." Atteberry, 430 F.3d
at 253 (citation omitted).
"In resolving questions of qualified immunity at summary judgment, courts engage in a
two-pronged inquiry. The first asks whether the facts, '[t]aken in the light most favorable to the
party asserting the injury, ... show the officer's conduct violated a [federal] right[.]''' Tolan,
134 S. Ct. at 1865 (quoting Saucier v. Katz, 533 U.s. 194,201, 121 S. Ct. 2151, 150 L. Ed. 2d
272 (2001». "The second prong of the qualified-immunity analysis asks whether the right in
question was 'clearly established' at the time of the violation." Id. at 1866 (citing Hope v.
Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002». Courts have discretion to
decide which prong to consider first. Id. (citing Pearson v. Callahan, 555 U.S. 223,232, 129 S.
Ct. 808, 172 L. Ed. 2d 565 (2009». "But under either prong, courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment." Id.
Director Berthay argues that Plaintiffs have failed to demonstrate either a violation of a
constitutional right or that any such constitutional violation was clearly established at the time of
the alleged misconduct. The Court addresses each argument in tum.
First, Director Berthay maintains that Plaintiffs have failed to demonstrate a violation of a
constitutional right.
Specifically, Director Berthay maintains that "[P]laintiffs' claim is,
apparently, that they had the constitutional right to have Berthay view the videotapes of the
incident in the [Lee County J]ail[] and that they had the constitutional right to have Berthay
unilaterally discharge Hughes."S4 The Court finds that this argument is not well taken and is
54
ld.
18
apparently a misstatement of the supervisory-liability claim against Director Berthay. The claim
is that Director Berthay failed to train or supervise Officer Hughes in deliberate indifference to
the rights of Plaintiffs and other Mississippi citizens to be free from excessive force.
The
foundation of a § 1983 supervisory-liability deliberate-indifference claim is often a "pattern of
similar constitutional violations by untrained employees." See Connick, 131 S. Ct. at 1360. In
this case, the alleged constitutional violations are Officer Hughes' repeated acts of excessive
force. "When a plaintiff alleges excessive force during an investigation or arrest, the federal
right at issue is the Fourth Amendment right against unreasonable seizures." Tolan, 131 S. Ct. at
1865 (citing Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).
Plaintiffs' second amended complaint states a claim that Officer Hughes committed Fourth
Amendment violations both during and after Director Berthay's tenure, as summarized above in
the "Factual Background" section of this opinion.
Plaintiffs have further demonstrated that
Director Berthay acted with deliberate indifference to the constitutional rights of Plaintiffs. The
Court finds that Plaintiffs have satisfied their burden of showing a constitutional violation. The
Court now turns to examine whether Plaintiffs have similarly met their burden on the clearly
established prong.
Director Berthay further argues that Plaintiffs have failed to show that the right in
question was clearly established. "A right is clearly established when 'it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.'" Hernandez v.
United States, -
F.3d --,2014 WL 2932598, at *5 (5th Cir. 2014). "[A] defendant cannot
be said to have violated a clearly established right unless the right's contours were sufficiently
definite that any reasonable official in the defendant's shoes would have understood that he was
violating it." Plumhoff, 134 S. Ct. at 2023 (citing al-Kidd, 131 S. Ct. at 2083-2084). "'We do
19
not require a case directly on point' before concluding that the law is clearly established, 'but
existing precedent must have placed the statutory or constitutional question beyond debate.' "
Stanton v. Sims, - - U.S. - - , - , 134 S. Ct. 3, 5, 187 L. Ed. 2d 341 (2013) (per curiam)
(quoting al-Kidd, 131 S. Ct. at 2083». " '[T]he salient question ... is whether the state of the
law' at the time of an incident provided 'fair warning' to the defendants 'that their alleged
[conduct] was unconstitutionaL'" Tolan, 134 S. ct. at 1866 (quoting Hope, 536 U.S. at 741,122
S. Ct. 2508). In cases alleging unreasonable searches or seizures, the United States Supreme
Court "ha[s] instructed that courts should define the 'clearly established' right at issue on the
basis of the 'specific context of the case.''' Id. (quoting Saucier, 553 U.S. at 201, 121 S. Ct.
2151). "Accordingly, courts must take care not to define a case's 'context' in a manner that
imports genuinely disputed factual propositions." Id. In this case, Plaintiffs maintain that the
right to be free from excessive force was well established and sufficiently definite for any
reasonable official to understand that unjustified force against arrestees by a sworn officer of the
Mississippi Highway Patrol was excessive force in violation of the Fourth Amendment and that
failing to adequately train or supervise Officer Hughes, including terminating or otherwise
disciplining Officer Hughes for these alleged acts, would be deliberate indifference to the
constitutional rights of individuals. In the opinion of this Court, Plaintiffs have met their burden
in showing that a reasonable official in Director Berthay's shoes would have understood that his
failure to train or supervise Officer Hughes, despite knowledge of the 2007 Lee County Jail
incident involving Wampler-George and likely knowing of the subsequent incident involving
Brann, would constitute deliberate indifference. For all of the foregoing reasons, Plaintiffs have
overcome Director Berthay's qualified-immunity defense at the summary-judgment stage.
20
D. Conclusion
Accordingly, because genuine disputes of material fact exist which preclude summary
judgment on Plaintiffs' § 1983 supervisory-liability claim against Defendant Michael Berthay,
and because Plaintiffs have demonstrated the inapplicability of the qualified-immunity defense at
the summary-judgment stage, Defendant Michael Berthay's motion for summary judgment [85]
is DENIED.
An order in accordance with this opinion shall issue this day.
1
,...~
;0,
THIS, the __ day of September, 2014.
SENIOR JUDGE
21
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