Shumpert et al v. City of Tupelo, Mississippi et al

Filing 210

MEMORANDUM OPINION re 209 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 11/6/2017. (dbm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
PEGGY SHUMPERT, individually and as the
Administrator of the Estate of Antwun Shumpert, Sr.,
THE ESTATE OF ANTWUN SHUMPERT, SR., and
CHARLES FOSTER
V.

PLAINTIFFS

CIVIL ACTION NO. 1:16-CV-120-SA-DAS

THE CITY OF TUPELO, MISSISSIPPI,
MAYOR JASON SHELTON, CHIEF BART AGUIRRE, and
OFFICER TYLER COOK

DEFENDANTS

MEMORANDUM OPINION
In their Second Amended Complaint [59], the Plaintiffs assert a number of federal and state
law claims against the City of Tupelo Mississippi, Jason Shelton, the mayor of Tupelo in his
official capacity, Bart Aguirre, the Chief of the Tupelo Police Department in his official capacity,
and Tupelo Police Officer Tyler Cook in both his official and individual capacities.1 The City filed
a Motion for Summary Judgment [188], requesting that the Court dismiss all of the Plaintiffs’
claims against them. The Plaintiffs filed a Response [193], and the City filed a Reply [199] making
these issues ripe for review.
I. Factual and Procedural Background2
On the evening of June 18, 2016, the Tupelo Police Department Special Operations Unit
was conducting surveillance of the Townhouse Motel due to complaints of drug activity. One of

1

The official capacity suits against Shelton, Aguirre, and Cook are suits against the City of Tupelo as the real party
in interest here, and are thus duplicative of the Plaintiffs’ suit against the City. See Goodman v. Harris Cty., 571 F.3d
388, 395 (5th Cir. 2009) (stating “an official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official personally, for the real party in interest is the entity.”)
(citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (citation omitted)). The
Plaintiffs acknowledge this in their summary judgment response. See [193]. The Court will proceed on this basis and
refer to all of these municipal Defendants collectively as the “City.” The Plaintiffs’ suit against Cook individually is
the subject of a separate summary judgment motion that the Court will not address in this Memorandum Opinion.
2
Factual controversies are resolved in favor of the Plaintiff when both parties submitted evidence of contradictory
facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

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the officers on the surveillance team watched a vehicle enter the motel parking lot without stopping
at the office and then exit about three minutes later. Suspecting that the occupants of the vehicle
were involved in narcotics activity, the surveilling officer notified the team that the vehicle was
now headed north on South Gloster Street.
Another officer, Joseph Senter, was in his unmarked patrol car near that location and started
following the suspect vehicle. After observing the vehicle make a right turn without signaling,
Senter activated his blue lights and attempted to initiate a traffic stop. Senter radioed that the
vehicle was “slow rolling” him and continued to follow. The vehicle went through a three-way
stop without stopping and made a left hand turn on Harrison Street. Then, the vehicle then stopped
and the driver, Antwun “Ronnie” Shumpert, exited the vehicle and ran into a nearby neighborhood.
The passenger, Charles Foster, remained with the vehicle. Senter gave chase on foot, identifying
Shumpert over the radio as black male wearing shorts and a maroon jersey with the number five
on it.
Officer Cook was in the area, parked his patrol vehicle and set out on foot with his K9,
Alec, in an effort to locate Shumpert. Alec led Cook to the rear of a nearby house where Cook
observed a hand trying to hold the door to the crawlspace under the house closed from the inside.
The area was dark, and the only light illuminating the area was the light attached to Cook’s drawn
gun. Cook opened the crawlspace door and announced, “Tupelo Police Department, show me your
hands, come out from under the house, I have a dog, and he will bite.” At this point, Shumpert
attempted to flee further under the house. Cook gave the bite command to Alec and released him
sending him under the house through the crawlspace door. K9 Alec engaged Shumpert, and
Shumpert began punching the dog and slamming the dog’s head up against the floor joists above.
Shumpert fought Alec off, but Alec held on to Shumpert’s jersey. Still engaged in a struggle, Alec

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and Shumpert came out from under the house, and in the process, Shumpert’s maroon jersey came
off. As he exited the crawlspace, Shumpert charged and tackled Cook with a football style tackle,
with Shumpert ending up on top of Cook punching him. Cook attempted to strike Shumpert with
his fist and gun. According to Cook, as he started to lose consciousness, he shot Shumpert four
times in succession.
Several officers were in the area and heard the gunshots. Officers Senter and Adam Merrill
were the first to arrive at the scene. Senter handcuffed Shumpert and requested an ambulance.
Emergency medical personnel arrived within approximately five minutes, administered aid to
Shumpert, and then transported him to the hospital. Cook was also transported to the hospital
where he was treated for bruising to his face.
After Shumpert fled the scene of the traffic stop and Senter gave chase, Foster remained
with the vehicle, and was standing by the vehicle with his hands in the air when Officer Jonathan
Johnson arrived, arrested him and placed him the back of a police vehicle. Although Shumpert was
driving, the car belonged to Foster.
After approximately forty-five minutes to one hour, the Mississippi Highway Patrol and
the Mississippi Bureau of Investigation arrived, and the Tupelo Police Department turned the
investigation, both scenes, and Foster over to them.
Shumpert ultimately died from his wounds.
II. 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

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who fails to make a showing sufficient 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. 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).
III. 42 U.S.C. § 1983 Municipal Liability
The Plaintiffs assert two theories for municipal liability against the City under 42 U.S.C. §
1983: the first related to the City’s training policies, and the second related to Foster’s detention.3
A municipality may only be held liable under §1983 when the violation of a plaintiff’s
federally protected right is attributable to the enforcement of a municipal policy or pattern. Hall v.
Robinson, 618 F. App’x 759, 763 (5th Cir. 2015) (citing Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). In order to sustain a claim, the
Plaintiffs must demonstrate that their constitutional rights were violated, and that the violation is

3

Although the Plaintiffs asserted numerous “causes of action” in their amended complaint, the Plaintiffs focused and
clarified the scope of their claims against the City to these enumerated claims through their summary judgment
briefing. See [197, 198].

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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)). If
they establish a constitutional violation, the Plaintiffs may show that the violation was the result
of a City policy or practice in a number of ways. Generally, municipal liability may be based upon
a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal
policymaker, or deliberately indifferent training or supervision. Valle, 613 F.3d at 541-42 (citing
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
Under §1983, a city is not liable simply because it employed a constitutional wrongdoer.
Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 167 (5th Cir. 2010) (stating “a municipality
may not be subject to liability merely for employing a tortfeasor”). In other words, §1983
municipal liability may not be based on respondeat superior. Zarnow, 614 F.3d at 167 (citing Bd.
of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 415, 117 S. Ct. 1382, 137 L. Ed.
2d 626 (1997)).
A. Failure to Train
The Plaintiffs argue that the City failed to adequately train Cook in the use of force,
specifically the use of the K9 Alec, and that this failure directly caused the unconstitutional use of
excessive force against Shumpert.
Assuming, for argument’s sake, that Cook violated Shumpert’s constitutional right4 to be
free from the use of excessive force, in order to succeed on their failure to train claim the Plaintiffs
must show three things: (1) the training procedures of the City’s policymaker were inadequate, (2)
the City’s policymaker was deliberately indifferent in adopting the training policy, and (3) the

4

The City does not concede that Cook violated any of Shumpert’s constitutional rights. However, the vast majority
of both Parties’ briefing and arguments are dedicated to the failure to train issue so it is here that the Court focuses its
inquiry.

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inadequate training policy directly caused the plaintiff’s injury. Conner v. Travis Cty., 209 F.3d
794, 796–97 (5th Cir. 2000) (citing Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996)). Because
“[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train,” to establish municipal liability under §1983 a plaintiff must show that the
failure to train was “the moving force behind a constitutional violation.” Saenz, 637 F. App’x at
831-32 (citing Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011);
Kitchen v. Dallas Cty., 759 F.3d 468, 476–77 (5th Cir. 2014)) (emphasis added). Saenz, 637 F.
App’x at 832 (quoting Connick, 563 U.S. at 61, 131 S. Ct. 1350). The Plaintiffs can establish that
the policy was the “moving force” by demonstrating that, “in light of the duties assigned [. . .], the
need for more or different training is obvious, and the inadequacy so likely to result in violations
of constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” Conner, 209 F.3d 797 (citing City of Canton v. Harris, 489
U.S. 378, 390, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Benavides v. County of Wilson, 955
F.2d 968, 972 (5th Cir. 1992)).
In this case, the Plaintiffs agree that the Tupelo Police Department training policy in
question is facially adequate. The Plaintiffs argue, however, that Aguirre failed to follow the policy
and his alleged departure rises to the level of deliberate indifference.
The Tupelo Police Department’s Canine Operations Policy states that in order to be
qualified for a canine handler position, applicants must have at least five years of uniform patrol
experience, with three years of that patrol experience with the Tupelo Police Department. Cook
was hired on October 7, 2012 as a regular patrol officer. On March 10, 2014, Aguirre transferred
Cook from regular patrol to K9 patrol, and Cook had less than two years of uniform patrol

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experience with the Tupelo Police Department.5 When questioned about the premature transfer,
Aguirre stated that he approved Cook for the transfer because he had prior K9 experience while in
the military.
The Plaintiffs argue that Cook’s premature transfer was deliberately indifferent and directly
caused the alleged violation of Shumpert’s constitutional rights. Importantly, the Plaintiffs do not
offer any evidence or argument that the actual training that Cook received, in particular regarding
K9 handling, was objectively or subjectively inadequate. The City argues that Cook was
adequately, if not highly, trained and that his service and training record is replete with evidence
of extensive K9 training.6
“Deliberate indifference is more than mere negligence.” Conner, 209 F.3d at 796–97
(citing Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) (“While the municipal
policy-maker’s failure to adopt a precaution can be the basis for § 1983 liability, such omission
must amount to an intentional choice, not merely an unintentionally negligent oversight.”); see
also Doe v. Taylor Independent Sch. Dist., 15 F.3d 443, 453 n. 7 (5th Cir. 1994) (distinguishing
“deliberate indifference” from “gross negligence” by noting that the former is a heightened degree
of negligence, [whereas] the latter is a “lesser form of intent”) (internal quotations omitted)).
Further, deliberate indifference normally requires “at least a pattern of similar incidents in
which the citizens were injured.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 849 (5th Cir.
2009) (citing Estate of Davis ex rel. McCully v. City of North Richmond Hills, 406 F.3d 375, 383,
386 (5th Cir. 2005)). Notably the Plaintiffs’ claim is based only on a single incident. Although,
“under certain circumstances, §1983 liability can attach for a single decision not to train an

5

At the time of the incident, Cook did have more than three years of uniform patrol experience with the Tupelo Police
Department.
6
Cook’s training file is a part of the record in this case and it does contain numerous K9-related training certificates
and certifications.

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individual officer,” “a showing of deliberate indifference generally requires a showing of more
than a single instance of the lack of training or supervision causing a violation of constitutional
rights.” See Peterson, 588 F.3d at 849; Clyce v. Hunt Cty., Tex., 515 F. App’x 319, 324 (5th Cir.
2013); see also Conner, 209 F.3d at 797. A “narrow” single incident exception has applied when
the court finds a complete failure to train, not just a failure to train in “one limited area.” See
Peterson, 588 F.3d at 849 (citing Estate of Davis ex rel. McCully v. City of North Richmond Hills,
406 F.3d 375, 383, 386 (5th Cir. 2005) (internal citations omitted)).
A failure to adequately enforce an otherwise adequate policy is not, as the Plaintiffs argue,
per se deliberate indifference. As this Court recently explained,
[A] city’s failure to adequately enforce existing policy does not
establish that it has adopted a policy or custom in favor of the exact
opposite of that policy. It is, in the court’s view, much more likely
to indicate that the city may intend that its policy be followed but
that it has failed to be sufficiently diligent in ensuring that such is
the case. Clearly, allegations that a city adopted beneficial policies
but has failed to follow them sound in simple negligence, not the
sort of “deliberate indifference” which the Supreme Court has
required to be shown in cases where municipalities are sought to be
held liable for the acts of their employees based upon allegations of
inadequate training, supervision or hiring.
Cooper v. Brown, 156 F. Supp. 3d 818, 830–31 (N.D. Miss.), aff’d in part, appeal dismissed in
part, 844 F.3d 517 (5th Cir. 2016) (citing City of Canton, 489 U.S. at 390, 109 S. Ct. at 1205)
(citations omitted)).
In light of the fact that Aguirre considered Cook’s previous military K9 experience when
transferring him, that Cook arguably possessed the requisite experience at the time of the incident,
and that Cook did receive at least some, if not substantial, training in K9 handling, Aguirre’s
decision to transfer Cook did not rise to the requisite level of deliberate indifference. It was not

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“obvious” “that the risk of serious injury was a ‘highly predictable consequence’ of any failure to
train.” Peterson, 588 F.3d at 849; Estate of Davis, 406 F.3d at 383, 386.
Put simply, the facts of this case fall far short of the stringent “deliberate indifference”
standard required. See Peterson, 588 F.3d at 849; Clyce, 515 F. App’x at 324; Conner, 209 F.3d
at 797. It is also clear, based on the undisputed evidence in the record, that there was no “complete
failure to train” in this case, which is required for application of the single incident exception. See
Peterson, 588 F.3d at 849; Estate of Davis, 406 F.3d at 383, 386.
B. Fourth Amendment – Foster’s Detention
Next, the Plaintiffs allege that the Tupelo Police Department violated Foster’s right to be
free from unreasonable search and seizure protected by the Fourth Amendment, and that this
violation is attributable to the enforcement of a City policy. The City argues that Foster’s
constitutional rights were not violated and that even if they were, the Plaintiffs have failed to
identify any policy or custom to which the alleged violation is attributable.
Although the Plaintiffs recognize in their briefing that “The City is entitled to insist upon
specific identification of the City policy through which the Plaintiff seeks to establish liability.
Piotrowski v. City of Houston, 237 F.3d 567, 578-580 (5th Cir. 2001),” the Plaintiffs never identify
such a policy through which they seek to establish liability relative to Foster. Strangely, the
Plaintiffs instead state, “Importantly, the City of Tupelo has produced no policy or testimony
regarding the propriety of the search and detention of Foster” and then argue that this is somehow
a jury question without citing any relevant precedent.
Because the Plaintiffs wholly failed to allege or identify any policy that could provide a
basis for municipal liability against the City, their claim fails and the Court need not reach the

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issue of whether Foster’s constitutional rights were violated here. See Hall, 618 F. App’x at 763
(citing Monell, 436 U.S. at 691, 98 S. Ct. 2018).7
IV. State Law Claims – Foster, Shumpert
Finally, the Plaintiffs allege several state law claims against the City on behalf of Shumpert
and Foster including civil assault and battery, general negligence, and intentional and negligent
infliction of emotional distress. The City asserts exemption from liability under Mississippi Code
§11-46-9(1)(c). The Mississippi Tort Claims Act provides a qualified waiver of sovereign
immunity under Mississippi law for certain tortious acts by municipal employees. The Act 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.
MISS. CODE. ANN. § 11-46-9(1)(c).
As to the claims related to Shumpert, the City argues that it is exempt from liability because
Shumpert was actively engaged in criminal activity at the relevant time. The Plaintiffs do not
respond to this argument but instead argue that Cook acted with reckless disregard. Under the plain
language of the statute, whether Cook acted with reckless disregard is irrelevant because, as the
Plaintiffs at least tacitly agree, Shumpert was engaged in criminal activity. See id.; see also
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),

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Although the Plaintiffs make factual allegations against Tupelo Police Officer Senter, Senter is not a party to this
suit in any capacity and as noted above, “§1983 municipal liability may not be based on respondeat superior.” Zarnow,
614 F.3d at 167 (citing Brown, 520 U.S. at 415, 117 S. Ct. 1382).

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aff’d, 736 F.3d 684 (5th Cir. 2013)); City of Jackson v. Powell, 917 So. 2d 59, 69–70 (Miss. 2005).
The application of this Section of the Mississippi Tort Claims Act is therefore straightforward to
these facts and the City is exempt from liability.
As to the claims related to Foster, the Plaintiffs argue that Tupelo Police arrested, searched,
and detained Foster for an unreasonable amount of time, and that they kept him handcuffed in a
hot police car in reckless disregard for his safety and well-being.
After Officer Senter began pursuing Shumpert on foot, Foster remained with the car and
had his hands up when the second officer, Johnson, arrived. Johnson handcuffed Foster and placed
him in the back of Senter’s patrol car. Foster was moved to another patrol car at least once before
he was transferred into the custody of the Mississippi Highway Patrol. 8 In all, Foster remained at
the scene of the stop for somewhere between forty-five minutes and one hour. While at the scene
Foster complained that his handcuffs were too tight and that it was so hot in the patrol car that he
could not breathe. According to Foster, the officers on the scene only opened the patrol car window
a small crack so that he could breathe.
As noted above, the City can only be liable for its officers’ conduct if those officers acted
with reckless disregard of Foster’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) (citing Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656, 661 (Miss. 2008)). “It typically
involves a conscious indifference to consequences, and almost a willingness that harm should

8

The Plaintiffs also argue that Foster was detained for five to six hours, and was strip and cavity searched. It is
undisputed that this detention and search took place after Foster was transferred to Mississippi Highway Patrol and
Lee County custody, and those entities are not named in this suit.

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follow.” Id. (citing Maye v. Pearl River County, 758 So. 2d 391, 394 (Miss. 1999)). “Reckless
disregard is found where there is a deliberate disregard of an unreasonable risk and a high
probability of harm.” Id. (citing City of Laurel v. Williams, 21 So. 3d 1170, 1175 (Miss. 2009)
(quoting Maldonado v. Kelly, 768 So. 2d 906, 910–11 (Miss. 2000)). The Mississippi Supreme
Court went on to explain that the standard by which officers’ actions are judged is an “objective”
one based on the “totality of the circumstances.” Phillips, 978 So. 2d at 66; City of Ellisville v.
Richardson, 913 So. 2d 973, 978–79 (Miss. 2005).
The facts of this case, as alleged by the Plaintiffs, do not rise to the requisite level of
reckless disregard, nor have the Plaintiffs brought forth any evidence of “an unreasonable risk and
high probability of harm.” Shavers, 97 So. 3d at 688: compare City of Jackson v. Gardner, 108
So. 3d 927, 929 (Miss. 2013) (finding that officer’s actions in forcing handcuffed arrestee to sit
down, which resulted in arrestee breaking his leg, did not rise to the level of reckless disregard)
and Bradley v. McAllister, 929 So. 2d 377, 380 (Miss. Ct. App. 2006) (finding police officer did
not act with reckless disregard when he elected not to adjust handcuffs he had placed on arrestee
after arrestee complained) with City of Jackson v. Calcote, 910 So. 2d 1103, 1111 (Miss. Ct. App.
2005) (finding officer’s actions of shoving arrestee’s face into concrete floor, pressing his fingers
into arrestee’s eyes, and rolling arrestee’s face across concrete floor were willful and wanton and
in reckless disregard).
In light of the particular facts presented in this case, and applying the relevant substantive
law and precedents, the Court finds that the allegations in this case do not rise to the level of
reckless disregard, and the City is exempt from liability under the police protections exemption of
the Mississippi Tort Claims Act.

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V. Conclusion
Because the Plaintiffs failed to establish several essential elements of their claims against
the City, as fully explained above, the City’s Motion for Summary Judgment [188] on all of the
Plaintiffs’ claims against it is GRANTED. The Plaintiffs’ claims against the City of Tupelo, as
well as their official capacity claims against Shelton, Aguirre, and Cook are DISMISSED with
prejudice.
SO ORDERED, this the 6th day of November, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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