Washington v. Burts et al

Filing 51

MEMORANDUM OPINION re 50 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 5/31/2017. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
RICKY WASHINGTON

PLAINTIFF

V.

CIVIL ACTION NO. 1:15-CV-21-SA-DAS

MELVIN BURTS, and
THE CITY OF VERONA

DEFENDANTS
MEMORANDUM OPINION

Ricky Washington filed his Complaint [1] in this Court on January 26, 2015 against the
City of Verona, Mississippi and Melvin Burts in his individual capacity as a police officer for the
City. Pursuing two claims under 42 U.S.C. § 1983, Washington claims that the City failed to
properly supervise and train Burts, and that Burts used excessive force against him during his
arrest. Washington also brings a third claim for negligence under the Mississippi Tort Claims
Act. The City and Burts filed a joint Motion for Summary Judgement [42] requesting judgment
in their favor on all of Washington’s claims.
Factual and Procedural Background
In July of 2013, Washington got into a fight with another man in the parking lot of a gas
station in Verona, Mississippi. According to Washington, although the fight was not initially
going his way, he was eventually able to get his opponent bent over a car and was poised to
punch, when someone suddenly grabbed him from behind, spun him around, and slammed him
up against the nearby brick wall of the station. Washington quickly gave up when he realized
that it was a police officer, Burts, that grabbed him from behind. Burts pulled Washington’s
hands up and behind his back, bent his right arm up injuring his hand and back, and placed him

in handcuffs.1 Washington and his opponent were transported to the City Jail where they were
immediately released without charges.
Washington alleges that Burts’ actions in bending Washington’s hand and arm behind his
back was an excessive use of force that violated his constitutional rights. Burts responds by
arguing that the force used was not excessive, he did not violate Washington’s constitutional
rights, and he is entitled to qualified immunity.
Washington also alleges that the City failed to properly train and supervise Burts to
prevent the use of excessive force. The City argues that no constitutional violation occurred
because the force used was not excessive, and that Washington failed to sufficiently allege the
existence of an official policymaker, official policy, and constitutional violation required to
substantiate this claim.
Finally, Washington alleges that the City and Burts are liable for negligence under the
Mississippi Tort Claims Act for the use of excessive force. Burts and the City argue that the
Washington’s MTCA claim is barred because Washington was engaged in criminal conduct, and
that the facts as alleged by Washington do not rise to the requisite level of reckless disregard.
Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element

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Washington’s actual deposition testimony states, “he had me in that deadly force, you know, like bending your
hand like give up. You know, I was already – when I seen it was him I give up to the police.”

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essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little,
37 F.3d at 1075. When such contradictory facts exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S. Ct. 2548. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). This Court
has no duty to “sift through the record in search of evidence to support” the nonmovant’s
opposition to summary judgment. Edwards v. Cont’l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016)
(citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).
At the outset, the Court notes that the Plaintiff wholly failed to “designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S. Ct. 2548
(citation omitted). The Plaintiff did not enter a substantive summary judgment response. Instead,
the Plaintiff deposited 168 pages of deposition testimony onto the docket accompanied by the
following brief statement: “The issues in this case are clearly disputed and should therefore be
determined by the jury.” Although the Plaintiff clearly failed to meet his responsibility in the

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summary judgment context, out of an abundance of caution, the Court conducted an independent
review of the entire record in this case, and will analyze the relevant issues based on this review.
Excessive Force
To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must
show that he “suffered (1) an injury that (2) resulted directly and only from the use of force that
was excessive to the need and that (3) the force used was objectively unreasonable.” Hamilton v.
Kindred, 845 F.3d 659, 662 (5th Cir. 2017) (citing Flores v. Palacios, 381 F.3d 391, 396 (5th
Cir. 2004).
Qualified immunity protects government officials from liability for civil damages to the
extent that their conduct is objectively reasonable in light of clearly established law. Crostley v.
Lamar Cty., Texas, 717 F.3d 410, 422-24 (5th Cir. 2013) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Kinney v. Weaver, 367 F.3d 337, 346 (5th
Cir. 2004)). “[T]he usual summary judgment burden of proof is altered in the case of a qualified
immunity defense.” Wolfe v. Meziere, 566 F. App’x 353, 354 (5th Cir. 2014) (citing Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d
481, 489 (5th Cir. 2001)). “An officer need only plead his good faith, which then shifts the
burden to the plaintiff, who must rebut the defense by establishing that the officer’s allegedly
wrongful conduct violated clearly established law.” Id. The Plaintiff “cannot rest on conclusory
allegations and assertions but must demonstrate genuine issues of material fact regarding the
reasonableness of the officer’s conduct.” Id.
“A plaintiff can overcome a qualified immunity defense by showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016) (quoting

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Ashcroft v. al–Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011); Harlow,
457 U.S. at 818, 102 S. Ct. 2727). In excessive force cases, “the second prong of the analysis is
better understood as two separate inquiries: whether the allegedly violated constitutional rights
were clearly established at the time of the incident; and, if so, whether the conduct of the
defendants was objectively unreasonable in light of that then clearly established law.” Griggs v.
Brewer, 841 F.3d 308, 313 (5th Cir. 2016) (citing Tarver v. City of Edna, 410 F.3d 745, 750 (5th
Cir. 2005) (citations and quotations omitted). “If officers of reasonable competence could
disagree as to whether the plaintiff’s rights were violated, the officer’s qualified immunity
remains intact.” Id.
Because “the Fourth Amendment right to be free from excessive force during a seizure is
clearly established,” Griggs, 841 F.3d at 312 (citing Poole v. City of Shreveport, 691 F.3d 624,
627 (5th Cir. 2012), the relevant inquiry is “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. (quoting Graham v. Connor, 490 U.S. 386, 398, 109 S. Ct.
1865, 104 L. Ed. 2d 443 (1989)). The use of force must be evaluated “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Poole,
691 F.3d at 627); Graham, 490 U.S. at 397, 109 S. Ct. 1865). Whether a particular use of force
was “objectively reasonable” depends on several factors, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight. Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009). (quoting Graham, 490 U.S. at 396, 109 S. Ct.
1865).

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The relevant facts, as alleged by the Plaintiff, are that he was actively engaged in a fight
with his opponent bent over a car preparing to punch him when he was grabbed from behind and
pushed up against a wall.2 Only after he was against the wall with his hands partially behind his
back did the Plaintiff realize that the person that grabbed him was a police officer, at which point
he surrendered. Burts bent the Plaintiff’s hand up behind him and handcuffed him.
Given that the Plaintiff was actively engaged in a fight when Burts arrived, and that the
Plaintiff did not surrender to Burt’s control until after he was already against the wall, Burt’s use
of force in bending the Plaintiff’s hand up behind in order to subdue and handcuff him was not
excessive to the need. Moreover, given the severity of the crime at issue, a fistfight in a public
place, and the immediate threat that the Plaintiff posed to the safety of the officers and others,
Burts’ use of force was not objectively unreasonable. This conclusion readily comports with
other recent decisions in excessive force cases in this Circuit. See Griggs, 841 F.3d at 315
(granting qualified immunity in case where officer punched motorist repeatedly in the back of
head to get him to stop tucking his arms under his body, and to gain control of motorist’s arms so
that they could be handcuffed behind his back; delivering swift punch to motorist’s face after
being kicked in the chest in an effort to close patrol vehicle door); see also Brooks v. City of W.
Point, Miss., 639 F. App’x 986, 990 (5th Cir. 2016) (affirming district court’s finding that de
minimis injuries including abrasions to hands and knees, some pain in back and neck, and
unspecified problems with asthma sustained in process of arrest and being handcuffed did not
support excessive force claim) (citing Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)
(concluding that allegations of “suffer[ing] ‘acute contusions of the wrist,’ and psychological
injury from being handcuffed” stated only de minimis injuries). Notably, as was the case in

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In his deposition, the Plaintiff concedes that the grabbing from behind and being pushed up against the wall did not
hurt him.

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Brooks, the Plaintiff in the instant case has not brought forth any competent evidence, medical or
otherwise, of any injury that could be causally connected to his arrest.
Because the Plaintiff cannot establish that Burts’ use of force was excessive or
objectively unreasonable, Burts is entitled to qualified immunity as to this claim. Summary
judgment is granted in Burts’ favor on the Plaintiff’s claim for excessive force.
Failure to Train and Supervise
The Plaintiff next alleges that the City failed to adequately supervise and train Burts in
order to prevent the use of excessive force against him. In order to sustain such a claim for
municipal liability against the City, the Plaintiff must demonstrate that Burts violated the
Plaintiff’s constitutional rights, and that the violation is attributable to the enforcement of a City
policy or practice. Saenz v. City of El Paso, 637 F. App’x 828, 831 (5th Cir. 2016) (citing Valle
v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010). Because the Court finds above that Burts
did not violate the Plaintiff’s constitutional rights, the Plaintiff cannot sustain a §1983 municipal
liability claim against the City. Id.
Mississippi Tort Claims Act
The Plaintiff brings his third and final claim under the Mississippi Tort Claims Act for
negligence. The Plaintiff alleges that Burts acted with reckless disregard when he used excessive
force against the Plaintiff, and that the City is liable under the MTCA.
The MTCA provides a qualified waiver of sovereign immunity under Mississippi law for
certain tortious acts by municipal employees. It does not waive sovereign immunity for
any act or omission of an employee of a governmental entity
engaged in the performance or execution of duties or activities
relating to police or fire protection unless the employee acted in
reckless disregard of the safety and well-being of any person not
engaged in criminal activity at the time of injury.

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MISS. CODE ANN. § 11–46–9 (1)(c). Thus, the City can only be liable for its officers’ conduct if
those officers acted with reckless disregard of the Plaintiff’s safety and well-being. Although
undefined in the Act, the Mississippi Supreme Court has explained the reckless disregard
standard as “a higher standard than gross negligence and it embraces willful or wanton conduct
which requires knowingly and intentionally doing a thing or wrongful act.” City of Jackson v.
Shavers, 97 So. 3d 686, 688 (Miss. 2012).
The Court’s independent review of the record has not revealed any evidence of
intentional, willful or wanton conduct by Burts that comes close to meeting the reckless
disregard standard. In particular, the Court notes that the Plaintiff was admittedly actively and
contemporaneously engaged in criminal activity –a fistfight in a public place–, that the Plaintiff
did not “give up” until after he was already pinned against the wall by Burts, that the Plaintiff
has not produced any evidence of excessive force as noted above, and that the Plaintiff has not
produced any evidence of an actual injury attributable to the alleged excessive use of force. By
the letter of the MTCA, being engaged in criminal activity at the time of the alleged injury is
dispositive to the Plaintiff’s claim. See MISS. CODE ANN. § 11–46–9 (1)(c); Hancock v. City of
Greenwood, Miss., 942 F. Supp. 2d 624, 626 (N.D. Miss. 2013) (citing Chapman v. City of
Quitman, 954 So. 2d 468, 474 (Miss. Ct. App. 2007); Williams v. City of Cleveland, Miss., No.
2:10-CV-215-SA, 2012 WL 3614418, at *20 (N.D. Miss. Aug. 21, 2012), aff’d, 736 F.3d 684
(5th Cir. 2013) (citing City of Jackson v. Powell, 917 So. 2d 59, 69–70 (Miss. 2005)). In
addition, the Court notes other recent decisions applying the MTCA reckless disregard standard
in the handcuffing context. See also House v. Green, No. 3:13-CV-216-MPM, 2014 WL
6957622, at *6 (N.D. Miss. Dec. 8, 2014) (“The handcuffing of an individual, even if alleged to

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have been performed without cause and too tightly, without further allegations, will not be
sufficient to sustain an excessive use of force claim under the MTCA.”).
For these reasons, the Court finds that the Plaintiff has failed to establish the essential
elements of his MTCA claim. The City’s Motion for Summary Judgment is granted as to the
Plainitff’s claim brought under the MTCA.
Conclusion
For all of the reasons explained above, the City of Verona and Burts’ Motion for
Summary Judgment [42] is GRANTED. All of the Plaintiff’s claims are dismissed with prejudice
and this CASE is CLOSED.
So ORDERED on this the 31st day of May, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT COURT JUDGE

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