Rogers v. Lee County, Miss. et al
Filing
184
MEMORANDUM OPINION re 183 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 7/13/2016. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
KERMIT O. ROGERS
PLAINTIFF
V.
CAUSE NO.: 1:13CV243-SA-DAS
CITY OF TUPELO, MISS., ET AL.
DEFENDANTS
MEMORANDUM OPINION
The individual officer Defendants seek summary judgment on the final remaining claim
on the basis of qualified immunity. For the reasons below, the motions for summary judgment
[171, 173] are GRANTED.
Factual and Procedural Background
Kermit Rogers filed a fifty-one page complaint alleging violations of his Fourth and
Fourteenth Amendments, as well as state law. This case was originally dismissed upon the
Court’s finding that the individual officers, Samuel T. Warren and Paul Howell, were entitled to
qualified immunity for Plaintiff’s Fourth Amendment unreasonable search and seizure claims as
they were objectively reasonable in effectuating the search of the red truck. The Court noted that
there was no viable Fourteenth Amendment due process claim for fabrication of evidence, no
City or County liability under Section 1983, and that the individual officers were further
protected from Plaintiff’s state law claims under the police function exemption to the Mississippi
Tort Claims Act. See Rogers v. City of Tupelo, Miss., No. 1:13cv243-SA, 2015 WL 3450266
(N.D. Miss. May 29, 2015).
Plaintiff filed a Motion for Reconsideration, which the Court granted in part. Rogers v.
City of Tupelo, Miss., No. 1:13cv243-SA, 2016 WL 1249156 (N.D. Miss. Mar. 28, 2016). In
particular, the Court held that a post-judgment Fifth Circuit case recognized that a Fourteenth
Amendment substantive due process violation may occur where officers intentionally fabricate
evidence, and there is no recourse under the Fourth Amendment.
Because Plaintiff’s Fourth
Amendment claims were found unavailing and the Fourteenth Amendment claims were
summarily dismissed without reviewing their merits, the Court reopened this cause of action
against the individual Defendants Samuel T. Warren and Paul Howell. Those Defendants have
now properly filed motions for summary judgment on the basis of qualified immunity as to the
surviving Fourteenth Amendment claims.
Summary Judgment Standard
Rule 56 provides that “[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs.,
L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where the burden of production at trial ultimately rests
on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the
record for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th
Cir. 2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. (punctuation omitted). “An issue is material if
its resolution could affect the outcome of the action.” Sierra Club, Inc., 627 F.3d at 138. “An
issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence.
Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact
issue exists, “the court must view the facts and the inference to be drawn therefrom in the light
most favorable to the nonmoving party.” Sierra Club, Inc., 627 F.3d at 138. However,
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“[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Discussion and Analysis
The individual Defendants seek summary judgment on the basis of qualified immunity as
to Plaintiff’s reinstated Fourteenth Amendment claim. Of course, Section 1983 provides a
remedy “to those who suffer, as a result of state action, deprivation of rights, privileges, or
immunities secured by the Constitution and laws of the United States.” White v. Thomas, 660
F.2d 680, 683 (5th Cir. 1981). Section 1983 claims may be brought against government
employees “in their individual or official capacity . . . .” Goodman v. Harris County, 571 F.3d
388, 395 (5th Cir. 2009). But individual defendants may rely on the defense of qualified
immunity. Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 436 (5th Cir.
2008). Generally, “qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). “Although nominally an affirmative defense, the
plaintiff has the burden to negate the defense once properly raised.” Poole v. Shreveport, 691
F.3d 624, 627 (5th Cir. 2012) (citation omitted). The qualified immunity inquiry at the summary
judgment stage requires the court to “recount the version of events most favorable to [the
plaintiffs].” Cole v. Carson, 802 F.3d 752, 758 (5th Cir. 2015).
There are two steps in the Court’s qualified immunity analysis. First, the Court
determines whether the plaintiff “has adduced sufficient evidence to raise a genuine issue of
material fact suggesting [the defendant’s] conduct violated an actual constitutional right.”
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Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Second, the Court must “consider
whether [the defendant’s] actions were objectively unreasonable in light of clearly established
law at the time of the conduct in question.” Id. The Court has discretion to address either step
first. Pearson, 555 U.S. at 236, 129 S. Ct. 808. “The qualified immunity standard gives ample
room for mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.” Brumfield, 551 F.3d at 326 (punctuation omitted).
As explained in the Memorandum Opinion on Reconsideration, the Fifth Circuit’s recent
case, Cole v. Carson, 802 F.3d 752 (5th Cir. 2015), provides the appropriate roadmap for the
Court’s determination of whether the Plaintiff has adduced sufficient evidence to raise a genuine
issue of material fact suggesting that the individual officer’s conduct violated the newlyrecognized Fourteenth Amendment due process claim in this instance. In that case, officers were
looking for a seventeen year old boy that was reportedly carrying weapons and acting
aggressively. Three officers surrounded the boy, and two of the officers ended up firing shots at
him. Id. at 755-56. After the shooting, the officers were given the opportunity to confer before
making statements to the police investigators. Id. at 756. Based on those statements, the boy was
charged with aggravated assault on a public servant. Id. In the civil suit against those officers,
the boy’s parents provided evidence contradictory to the statements made by police officers that
the boy was never given a warning and did not point his gun at one of the officers prior to being
shot. Id. at 763. Because there was probable cause to arrest the boy for any crime, the parents’
Fourth Amendment false arrest or illegal detention failed.1 Id. at 764-65.
The Fifth Circuit noted that a “victim of intentional fabrication of evidence by officials is
denied due process when he is either convicted or acquitted.” Cole, 802 F.3d at 768. Thus, “even
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The Court noted that under Texas law, it was unlawful to carry a weapon on one’s person outside of their own
property or en route to a motor vehicle. Accordingly, probable cause existed to arrest for unlawful carrying despite
not being charged with that crime.
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when a trial functions properly to vindicate a person’s innocence, the ‘manufacturing of evidence
and knowing use of that evidence along with perjured testimony to obtain a wrongful conviction
deprives a defendant of his long recognized right to a fair trial secured by the Due Process
Clause.’” Id. at 767 (quoting Boyd v. Driver, 579 F.3d 513, 515 (5th Cir. 2009)). Indeed, the
Court held the due process right “not to have police deliberately fabricate evidence and use it to
frame and bring false charges against a person” exists. Id. at 771. However, the “[e]xecutive
action must shock the conscience in order to violate substantive due process.” Id. (citing Doe ex
rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 867 (5th Cir. 2012)). At the
time of the charge, the Fifth Circuit found that no reasonable law enforcement officer would
have thought it permissible to wrongfully charge someone for a crime he or she did not commit
on the basis of deliberately fabricated evidence. Id. at 773. Therefore, the Court held that there
was enough to determine that the plaintiff had pled a clearly established constitutional violation
under the Fourteenth Amendment. Id. at 774.
Plaintiff contends that the individual Defendants violated the Fourteenth Amendment by
fabricating evidence needed to pursue his prosecution. In particular, Plaintiff asserts that the
police report stating that the red truck was “behind” the house involved in the search, instead of
200 yards behind said house, is such fabricated evidence.
The report was indisputably generated by Samuel T. Warren. In that report, Warren notes
that search involved “the residence and vehicles found on the property.” Further, he
acknowledges that “agents also discovered approximately 236 grams of alleged crack cocaine . .
. inside a Red Chevrolet truck . . . which was parked and locked on the property.” At the
suppression hearing held in the criminal matter, when asked directly by the Court under oath,
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Warren testified that he “would say [the red truck] was parked behind 320, because I felt like that
was all one property at the time, yes, sir.”
Plaintiff here has not adduced sufficient evidence to raise a genuine issue of disputed fact
to suggest that Samuel T. Warren’s action in executing his written report violated an actual
constitutional right. There has been no evidence presented that Warren knew the truck was not
“on the property” until the date of the suppression hearing. The red truck was indisputably
registered to Kermit Rogers, which Warren knew at the time of the search. After discovering the
narcotics in the truck, Rogers himself admitted the drugs were solely his. The Court cannot say
that in light of the totality of the circumstances, viewing the evidence in the light most favorable
to Plaintiff, that Warren’s report of the vehicle being “on the property” or “behind” the house
was so extreme as to shock the conscience as required by the substantive due process clause.
Doe ex rel. Magee, 675 F.3d at 867. Plaintiff has failed to provide any evidence that Warren’s
report noting the truck was “behind” the 320 property was intentionally fabricated or that his
testimony in regards to that report was perjured in order to obtain a wrongful conviction.2
Plaintiff contends that whether the evidence was fabricated or “just a product of poor
report writing” is a question for the jury. However, as the Supreme Court has made clear, actions
under § 1983 must be based on constitutional violations, not mere negligence. Daniels v.
Williams, 474 U.S. 327, 332–33, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Regardless of whether
an actual constitutional violation is evidenced here, however, the Court finds that Warren’s
comments in his investigative report were objectively reasonable. As testified by Warren, the
building denoted as 320A appeared to be an outbuilding at which a red truck registered to Kermit
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Plaintiff contends that under Fifth Circuit precedent that it is immaterial whether the evidence was intentionally
misrepresented. However, the Fifth Circuit precedent recognizing this claim, Cole v. Carson, 802 F.3d at 771,
explicitly recognizes that the constitutional right is one to not have police “deliberately fabricate evidence and use it
to frame and bring false charges against a person.” Therefore, the intentional and deliberate fabrication of evidence
is necessary for this cause of action.
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Rogers was parked. A call to the warrant-issuing judge confirmed that the outbuilding was
covered by the search warrant. Later, Rogers claim the narcotics found in the red truck as his.
Based on the record developed in this case, it appears Warren’s representation that the red truck
was “behind” the properly-searched house was more a “mistaken judgment” or negligent
representation, as opposed to an intentional fabrication.
See Brumfield, 551 F.3d at 326.
Accordingly, the Court additionally holds that Warren was objectively reasonable in listing the
red truck as being located “behind” the properly searched property, despite the later discovered
fact that the truck was parked at a separately-addressed property. Thus, Plaintiff has failed to
show that Warren was “plainly incompetent” or “knowingly violate[d] the law” such that
qualified immunity should not extend to him. Id.
Paul Howell asserts that he cannot be liable under Section 1983 because there is no
evidence that he was personally involved in any of the alleged constitutional violations. “Under §
1983, a supervisory official may be held liable only if (1) [he] affirmatively participates in the
acts that cause the constitutional deprivation, or (2) [he] implements unconstitutional policies
that causally result in the constitutional injury.” Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir.
2009). There is no dispute that the phrase “behind” the house appeared in Samuel T. Warren’s
report, that Paul Howell did not make a written report, and Howell did not orally testify as to the
placement of the truck at any court proceeding. Accordingly, Plaintiff has failed to create a
genuine issue of material fact as to Paul Howell’s involvement, and the Fourteenth Amendment
claim against him is due to be summarily dismissed.
Conclusion
Qualified immunity is properly extended to the individual officer Defendants on the
Fourteenth Amendment substantive due process claim that the police report mistakenly reported
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that the red truck was “behind” the property subject to the search warrant. Not only has Plaintiff
failed to show that such representation was an intentional fabrication or perjury of any sort, he
has also failed to show that the officers were not objectively reasonable in its mistaken assertion
regarding the placement of the truck.
Defendants’ motions for summary judgment [171, 173] are GRANTED, the Plaintiff’s
claims are DISMISSED, and this case is CLOSED.
SO ORDERED, this the 13th day of July, 2016.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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