Hawn v. Hughes et al

Filing 183

MEMORANDUM OPINION re 182 granting 156 plaintiffs' motion for partial summary judgment against defendant Christopher (C.G) Hughes. Signed by Senior Judge Neal B. Biggers on 3/30/2016. (jww)

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
v.

PLAINTIFFS
CAUSE NO. 1:13-CV-000036-NBB-DAS

CHRISTOPHER (C.G.) HUGHES,
in His Individual Capacity; and
MICHAEL BERTHAY, in His Individual Capacity

DEFENDANTS

MEMORANDUM OPINION
This cause comes before the court on the plaintiffs’ motion for partial summary judgment
regarding claims against defendant Christopher Hughes. Upon due consideration of the motions,
responses, exhibits, and supporting and opposing authority, the court is ready to rule.
Factual and Procedural Background
The plaintiffs, John Hawn, Bryan Lindsey, Heather Seawright, Ronnie Horton, and
Matilda Moore bring this motion against defendant Christopher Hughes, a former Mississippi
Highway Patrol officer, alleging Hughes exerted excessive force while attempting to arrest each
plaintiff. Additionally, plaintiffs Moore and Horton assert Hughes initiated their arrest without
probable cause. In consideration of this motion and the evidence presented in support, each
plaintiff’s sworn narrative will be recalled separately.
John A. Hawn
John A. Hawn declares, that on July 16, 2012, he drove toward a highway security
checkpoint set by two Mississippi Highway Patrol officers, one being Christopher Hughes.
Hawn states, upon approach, he drove around the checkpoint, though he does not offer an
explanation as to why. Once on the other side, Hawn stopped his vehicle. Hawn alleges that

Hughes approached the vehicle and physically removed Hawn from the vehicle. Hawn alleges
Hughes then beat him until he lost consciousness. He asserts he incurred fractured facial bones,
bruises and abrasions, and a contused chest wall.
Bryan Lindsey
Bryan Lindsey declares that he drove toward a highway safety checkpoint on October 17,
2010, set by multiple Mississippi Highway Patrol officers, one being Christopher Hughes.
Lindsey alleges that Hughes arrested and handcuffed him without explanation. Lindsey says he
asked Hughes why he was being arrested. Hughes offered no answer, but instead began to beat
Lindsey. Additionally, Lindsey alleges Hughes slammed his head against the patrol car and
threw him to the ground. The impact allegedly fractured Lindsey’s skull. Hospital photographs
show a deep gash between Lindsey’s eyebrows. Lindsey alleges he incurred other immediate
and lingering injuries as a result of the encounter.
On October 29, 2010, a “Use of Force” memorandum was filed by Major Miley of the
Mississippi Highway Patrol regarding the incident, stating that Hughes’ flashlight strike used to
“subdue” Lindsey was “unnecessary.” An additional “Use of Force” memorandum regarding
this incident was filed by Lieutenant Brown of the Mississippi Highway Patrol describing
Trooper Hughes’ methods as “extreme and unnecessary.”
Heather Seawright
Heather Seawright declares that she was pulled over on April 28, 2012, by Christopher
Hughes, who arrested and transported her to the Lee County Adult Detention Center. Seawright
states that she asked the officers to loosen her handcuffs and asked Christopher Hughes why she
had been arrested. Hughes then allegedly struck Seawright in the face with his flashlight.
Seawright states Hughes then “smashed” her head against the wall. Photographs show deep

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bruising and abrasions around Seawright’s right eye with additional abrasions on her nose and
forehead. Seawright received medical attention for her injuries.
Ronnie Horton
Ronnie Horton declares that on August 4, 2011, he was driving in Lee County and lost
consciousness due to a medical condition. No other details of the accident are described;
however, Christopher Hughes responded to the scene. Upon arriving, Hughes allegedly struck
Horton in the mouth causing Horton’s mouth to bleed. When Horton asked Hughes why he hit
him, Hughes responded antagonistically, “[do] you want some more?” As a result of the
incident, Horton received medical treatment and physical therapy.
Matilda Moore
Matilda Moore declares she was a passenger in a car approaching a road block on a
Mississippi highway. A highway patrolman —not Hughes — arrested the driver for suspicion of
driving under the influence. Moore requested permission to drive herself home. The highway
patrolman administered a breathalyzer and concluded he would need to take Moore in and
release her at a later time. The patrolman took Moore to the Lee County Sheriff’s Department
and turned her over to Christopher Hughes. Moore was not suspected of, or charged with, a
crime at the time.
At the Sheriff’s department, Moore declares she witnessed an incident between a citizen
and an officer that “scared” her. Afterward, Hughes took Moore into a room with a phone and
directed her to call someone. A discussion between Hughes and Moore took place about the
implications of making a phone call which culminated in Hughes placing Moore under arrest for
resisting arrest. In doing so, Hughes grabbed Moore’s left arm and maneuvered it behind her
back and, as Moore states, pushed her against the wall “using the weight of his body.” Moore

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states Hughes made comments about his ability to break her arm. Hughes then had a female
officer strip search Moore.
Hughes charged Moore with public drunkenness, resisting arrest, and two counts of
disorderly conduct. Moore was released early the next morning. As a result of the incident,
Moore sought medical attention, was prescribed medication, and attended physical therapy.
Submitted photographs show extensive bruising on the underside of Moore’s left arm from her
elbow to her shoulder.
Procedural History
Plaintiff John A. Hawn filed this action on February 21, 2013, against defendant Hughes
and three unknown supervisors of Hughes. On October 3, 2013, plaintiff Hawn amended his
complaint to add four plaintiffs and one defendant. The four plaintiffs are, Bryan Lindsey,
Heather Seawright, Ronnie Horton, and Matilda Moore, and the defendant is Michael Berthay, a
former supervisor of Christopher Hughes.
The added defendant, Michael Berthay, filed a separate motion for summary judgment on
January 28, 2014. On September 8, 2014, the court denied Berthay’s motion. Consequently, the
plaintiffs’ claims against Michael Berthay will proceed to trial on the merits.
On March 31, 2015, the plaintiffs filed a motion for partial summary judgment
concerning all claims against defendant Christopher Hughes. All plaintiffs allege Hughes
exerted excessive force while placing them under arrest, and plaintiffs Moore and Horton allege
Hughes initiated their arrest without probable cause. Together with their motion, the plaintiffs
filed a memorandum and seventeen exhibits in support.
Hughes responded to the plaintiffs’ motion for partial summary judgment on April 27,
2015, asserting his Fifth Amendment privilege “and all rights and privileges associated

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therewith” and requesting that the court deny the plaintiffs’ motion. Hughes provides no
alternative account of any of the plaintiffs’ narratives; nor does he provide any evidence in
support of his request that the court deny the plaintiffs’ motion.
Standard of Review
A party is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the initial
burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the movant makes such a showing, the burden shifts to the non-movant
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 (quoting Fed. R. Civ. 56(c), (e)). To meet its burden, “the nonmoving party may not rest upon mere denials or allegations, but must instead set forth specific
facts sufficient to raise a genuine issue for trial.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242,
249 (1986). No genuine dispute of fact exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party. See Matsushia Elec. Indus. Co. v. Zenith
Radio., 475 U.S. 574, 586 (1986). Furthermore, the mere argued existence of a factual dispute
does not defeat an otherwise properly supported motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative,”
summary judgment is appropriate. Id. at 249-50. “Summary judgment is also appropriate if the
party opposing the motion fails to establish an essential element of his case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “If a party fails to properly support an assertion of fact or

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fails to properly address another party’s assertion of fact as required by rule 56(c), the court may
. . . consider the fact undisputed for purposes of the motion[.]” Fed. R. Civ. P. 56(e)(2).
“As a preliminary matter, it should be noted that a party may invoke the privilege against
self-incrimination in a civil proceeding.” Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th
Cir. 2012). In such an instance, the Supreme Court has cautioned that the Constitution limits
“the imposition of any sanction which makes assertion of the Fifth Amendment privilege
‘costly.’” Spevack v. Klein, 385 U.S. 511, 517 (1967). More definitively, granting summary
judgment exclusively on the basis of the invoked Fifth Amendment privilege would “unduly
penalize the employment of the privilege.” United States v. White, 589 F.2d 1283, 1287 (5th Cir.
1979). The Supreme Court, however, makes clear that invoking the Fifth Amendment “is not a
substitute for relevant evidence,” and a litigant claiming the privilege is not “freed from
adducing proof in support of a burden which would otherwise have been his.” United States v.
Rylander, 460 U.S. 752, 758 (1983). Furthermore, “the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they refuse to testify in response to
probative evidence offered against them.” See e.g., Baxter v. Palmigiano, 425 U.S. 308, 318
(1976); Hoover v. Knight, 678 F.2d 578, 581-82 (5th Cir. 1982).
Analysis
The court analyzes this motion in light of defendant Hughes’ inability, or refusal, to
respond specifically to the plaintiffs’ assertions of fact in their motion for summary judgment.
As stated above, if a party fails to properly address another party’s assertion of fact, the court
may consider the facts undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). Faced
with the plaintiffs’ accounts, defendant Hughes brought forth no sworn witness statement or
even a scintilla of evidence in opposition to the narrative of each plaintiff; nor has the defendant

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asserted with specificity which facts are disputed. For the purposes of this motion, the court
considers the plaintiffs’ assertions of fact as undisputed pursuant to Fed. R. Civ. P. 56(e)(2), and
analyzes their claims accordingly.
a. Excessive force
When establishing excessive force in violation of the Fourth Amendment, a plaintiff must
prove: (1) injury, (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable. Elizondo v. Greene,
671 F.3d 506, 510 (5th Cir. 2012). Claims against law enforcement for excessive force during
the course of arrest, an investigatory stop, or other “seizures” are properly analyzed under the
Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386,
388 (1989). Applying this standard requires the court to consider whether the force used was
objectively reasonable in light of the facts and circumstances confronting the officer, regardless
of the officer’s subjective intent. Id. at 397.
With the circumstances presented, the court finds no objective reason why the inordinate
amount of force described should have been exerted on any of the plaintiffs in this case, and
furthermore, the resulting injuries presented by each plaintiff derived from the excessive and
unreasonable amount of force used by the defendant Hughes, meeting the requirements of the
Elizondo standard. In summary, plaintiffs Lindsey and Seawright were aggressively assaulted
while in handcuffs resulting in Lindsey’s fractured skull and Seawright’s contused face. Plaintiff
Horton was unconscious before being struck by Hughes. Plaintiff Hawn became unconscious
while Hughes continued to beat him, and in doing so, Hughes fractured the bones in Hawn’s
face. Plaintiff Moore was deeply bruised while being placed in custody for questioning the
implications of making a phone call inside the Lee County Sheriff’s Department.

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None of the plaintiffs posed a potential harm to defendant Hughes or others. Hughes’
elevated physical response was therefore unquestionably without justification given the
circumstances. Furthermore, on multiple occasions, defendant Hughes’ superiors reported on,
and took issue with, the excessive and extrajudicial nature of Hughes’ methods. The court finds
defendant Hughes violated each plaintiff’s Constitutional rights by exerting excessive force in
each instance.
b. Arrest without probable cause
Plaintiffs Moore and Horton have further alleged that defendant Hughes initiated their
arrest without probable cause. Under 42 U.S.C. § 1983, an arrest without probable cause
violates the Fourth Amendment and is a basis for liability. See, e.g., Castellano v. Fragozo, 352
F.3d 939, 953 (5th Cir. Tex. 2003); Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996). To
determine whether an arrest was conducted absent probable cause, the court must ask whether
the “police officer ha[d] probable cause to arrest if, at the time of the arrest, he had knowledge
that would warrant a prudent person’s belief that the person arrested had already committed or
was committing a crime.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (quoting
Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992)).
Matilda Moore was initially arrested for resisting arrest. Former officer Hughes walked
Matilda Moore to a room with a phone instructing Moore to call someone. Moore then asked
Hughes why she would need to call someone if she had done nothing wrong and had earlier been
told that she would be released. Hughes replied, “[n]ow you have an attitude [and] now you are
resisting arrest.” After cuffing Moore, while pressing her against the wall, Hughes stated; “I
could just break your arm.” It is clear from the narrative of this encounter that Hughes’ arrest
was not based on whether a crime had been or was being committed, but rather for the purposes

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of harassing and intimidating Moore. This court finds there is sufficient evidence under the
applicable standard to determine that former officer Hughes initiated the arrest of Matilda Moore
without probable cause.
Ronnie Horton also alleges he was arrested without probable cause. Horton was driving
in Lee County and lost consciousness due to a medical condition. Christopher Hughes
responded to the scene. Upon arriving, Hughes struck Horton in the mouth causing Horton’s
mouth to bleed. When Horton asked Hughes why he hit him, Hughes responded
antagonistically, “[do] you want some more?” Hughes arrested Horton and incarcerated him in
the Lee County jail. Horton was released soon thereafter and was not charged with or convicted
of any offense related to this incident. This court determines there is sufficient evidence,
pursuant to the applicable standard, to find that former officer Hughes initiated the arrest of
Ronnie Horton without sufficient probable cause.
Defendant Hughes has not set forth any specific facts which indicate a genuine issue for
trial. The defendant’s only response to summary judgment is to invoke his Fifth Amendment
right against self-incrimination. Hughes has produced no evidence. The defendant’s invocation
of his Fifth Amendment privilege alone is not a substitute for relevant evidence showing the
defendant has competently met his burden to respond to the plaintiffs’ motion. The court finds
no genuine issue of material fact in this case, and the plaintiffs’ motion for partial summary
judgment as to the liability of Christopher Hughes should be granted.
Conclusion
For the foregoing reasons, the court finds that the plaintiffs are entitled to partial
summary judgment as to liability on the claims against defendant Christopher Hughes. A
separate judgment in accordance with this opinion shall issue this day. Furthermore, the

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remaining issues in this matter—the liability, if any, of Hughes’ supervisor, Michael Berthay,
and the amount of damages— are set for trial on, April 25, 2016.
This, the 30th day of March, 2016.

Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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