Britton v. Southaven Police Department et al

Filing 82

MEMORANDUM OPINION. Signed by District Judge Michael P. Mills on 5/30/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MEIKA DESEAN BRITTON

PLAINTIFF

v.

No. 3:16CV84-MPM-RP

SOUTHAVEN POLICE DEPARTMENT, ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Meika DeSean Britton,
who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the
Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit.
The plaintiff has brought the instant case under 42 U.S.C. § 1983, which provides a federal cause of
action against “[e]very person” who under color of state authority causes the “deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The
plaintiff, who was a parolee at the time, alleges that the defendants searched his cellular telephone
without probable cause. The defendants have moved for summary judgment, and the plaintiff has
responded. The plaintiff has filed a cross-motion for summary judgment, to which the defendants
have not responded. The matter is ripe for resolution. For the reasons set forth below, the motion by
the defendants for summary judgment will be granted; the plaintiff’s motion for summary judgment
will be denied, and judgment will be entered for the defendants in all respects.
Summary Judgment Standard
Summary judgment is appropriate if the “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials” show
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) and (c)(1). “The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would be insufficient to permit the
nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629,
633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066
(1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v.
Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline
Company, 136 F.3d 455, 458 (5th Cir. 1998). Substantive law determines what is material. Anderson,
477 U.S. at 249. “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id., at 248. If the non-movant sets forth specific facts
in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327.
“Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 89 L. Ed. 2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th
Cir. 1992).
The facts are reviewed drawing all reasonable inferences in favor of the non-moving party.
Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management Dist.,
177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198
(5th Cir. 1995). However, this is so only when there is “an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of

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proof, the court does not “assume that the nonmoving party could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted).
The very purpose of summary judgment is to “pierce the pleadings and assess the proof in
order to see whether there is a genuine issue for trial.” Advisory Committee Note to the 1963
Amendments to Rule 56. Indeed, “[t]he amendment is not intended to derogate from the solemnity of
the pleadings[;] [r]ather, it recognizes that despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary.” Id. The
non-moving party (the plaintiff in this case), must come forward with proof to support each element of
his claim. The plaintiff cannot meet this burden with “some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1356 (1986), “conclusory allegations,” Lujan v. National Wildlife Federation, 497 U.S. 871, 871-73,
110 S.Ct. 3177, 3180 (1990), “unsubstantiated assertions,” Hopper v. Frank, 16 F.3d 92 (5th Cir.
1994), or by a mere “scintilla” of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994).
It would undermine the purposes of summary judgment if a party could defeat such a motion simply
by “replac[ing] conclusory allegations of the complaint or answer with conclusory allegations of an
affidavit.” Lujan, 497 U.S. at 888. In considering a motion for summary judgment, a court must
determine whether the non-moving party’s allegations are plausible. Matsushita, supra. (emphasis
added). “[D]etermining whether a complaint states a plausible claim is context-specific, requiring the
reviewing court to draw on its experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937 (2009) (discussing plausibility of claim as a requirement to survive a motion to dismiss
under Fed. R. Civ. P. 12(b)(6)).
In considering a motion for summary judgment, once the court “has determined the relevant
set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the

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record, [the ultimate decision becomes] purely a question of law.” Scott v. Harris, 550 U.S. 372, 381
(2007) (emphasis in original). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on the motion for summary judgment.” Id. at
380.
Undisputed Material Facts
On May 5, 2011, Britton pled guilty to the charge of Child Exploitation and was sentenced to serve
five years in the custody of the Mississippi Department of Corrections, followed by ten years of postrelease supervision under the MDOC. Doc. 63 at 5. Britton was incarcerated until December 2015. On
March 16, 2016 a police report was filed by an individual concerned that Britton had inappropriate contact
with his 14 year old daughter. Id. at 9. Detective Brannon Rushing of the Southaven Police Department
asked the parent for permission to use the daughter’s phone and to pose as the daughter to communicate
with Britton, and the parent and the minor consented. Id. at 11.

After beginning his investigation, Detective Rushing discovered Britton was a registered sex
offender, and was currently under supervision with MDOC for a ten year period, reporting to
Probation Officer Frank Caswell. Id. On March 22, 2016, a juvenile female told Rushing that Britton
had given liquor to minor children present at a gathering. Doc. 77 at 16. After several days of
communicating, Detective Rushing arranged a meeting with Britton via his probation officer, Frank
Caswell. Id. at 11. On March 24, 2016, Britton met with Detective Rushing and Probation Officer
Caswell at the MDOC office in Hernando, Mississippi. Id. During the interview, Probation Officer
Caswell asked Britton to produce his phone, and Britton stated he did not want Caswell to look in the
phone and began to press buttons on the phone. Id. Detective Rushing, worried that Britton could be
deleting incriminating evidence, took the phone for evidentiary purposes. Id. at 11-12. Detective

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Rushing informed Britton he could pick up a receipt for the seized property at the Southaven Police
Department. Id.
On the same date, March 24, 2016, Detective Rushing applied for and obtained a search warrant
for the contents of the phone. Id. at 13. A forensic analysis was then performed on the phone and its
contents extracted. Id. at 15. On March 28, 2016 Britton was charged and arrested for Child Exploitation
and Contributing to the Delinquency of a Minor. Id. at 16-19. On April 4, 2016, an Affidavit and Warrant
were filed for Violation of Post Release Supervision due to the new charges. Id. at 24-25. Following a
revocation hearing, the Circuit Court of DeSoto County, Mississippi, held that Britton had violated the
terms of his supervised release, and imposed the remaining ten years of his sentence to be served in the
custody of the Mississippi Department of Corrections.
Britton’s version of the facts in this case differs from the defendants’ only slightly. He notes
insignificant differences (less than 30 minutes) in the timing of events surrounding his questioning and the
seizure of his phone. He also alleges that, when he entered the Hernando building for questioning, he did
not have his phone and went to retrieve it only when Caswell and Rushing requested a list of phone
numbers. He also seems to dispute whether he was pushing keys on his phone at the time Detective
Rushing seized it.

Discussion
As discussed below, the plaintiff’s case must be dismissed for a variety of reasons. First, as to
his claims against Mississippi Department of Corrections personnel, he did not, prior to filing suit,
exhaust the grievance process through the Administrative Remedy Program the State has adopted.
Second, the plaintiff’s claim fails on the merits, as the defendants had ample justification for seizing
his phone and searching it for evidence of improper communication with minors. Third, as Bonita
Clark had no direct involvement in the seizure and search of the plaintiff’s cellular phone, he has been

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sued her solely in her capacity as supervisor, and a plaintiff cannot sustain a claim under 42 U.S.C. §
1983 based upon a respondeat superior theory.
Exhaustion of Administrative Remedies
Congress enacted the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e et seq.
– including its requirement that inmates exhaust their administrative remedies prior to filing suit
– in an effort to address the large number of prisoner complaints filed in federal courts. See
Jones v. Bock, 549 U.S. 199, 202 (2007). Congress meant for the exhaustion requirement to be
an effective tool to help weed out the frivolous claims from the colorable ones:
Prisoner litigation continues to ‘account for an outsized share of filings’ in federal
district courts. Woodford v. Ngo, 548 U.S. 81, 94, n. 4, 126 S.Ct. 2378 (2006) (slip op.,
at 12, n.4). In 2005, nearly 10 percent of all civil cases filed in federal courts
nationwide were prisoner complaints challenging prison conditions or claiming civil
rights violations. Most of these cases have no merit; many are frivolous. Our legal
system, however, remains committed to guaranteeing that prisoner claims of illegal
conduct by their custodians are fairly handled according to law. The challenge lies in
ensuring that the flood of non-meritorious claims does not submerge and effectively
preclude consideration of the allegations with merit. See Neitzke v. Williams, 490 U.S.
319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Congress addressed that challenge in the PLRA. What this country needs, Congress
decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (PLRA intended to “reduce the quantity and
improve the quality of prisoner suits”). To that end, Congress enacted a variety of
reforms designed to filter out the bad claims and facilitate consideration of the good.
Key among these was the requirement that inmates complaining about prison
conditions exhaust prison grievance remedies before initiating a lawsuit.
Jones v. Bock, 549 U.S. 199, 203 (2007).
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a), requires prisoners to
exhaust any available administrative remedies prior to filing suit under 42 U.S.C. §1983. The
exhaustion requirement protects administrative agency authority, promotes efficiency, and
produces “a useful record for subsequent judicial consideration.” Woodford v. Ngo, 548 U.S.81,
89 (2006). A prisoner cannot satisfy the exhaustion requirement “by filing an untimely or
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otherwise procedurally defective administrative grievance or appeal” because “proper exhaustion
of administrative remedies is necessary.” Woodford v. Ngo, 548 U.S. 81, 83-84 (2006); see also
Johnson v. Ford, 261 F. App’x 752, 755 (5th Cir. 2008)( the Fifth Circuit takes “a strict
approach” to the PLRA’s exhaustion requirement)(citing Days v. Johnson, 322 F.3d 863, 866 (5th
Cir. 2003)); Lane v. Harris Cty.Med.Dep’t, No. 06-20935, 2008 WL 116333, at *1 (5th Cir.
Jan.11,2008)( under the PLRA, “the prisoner must not only pursue all available avenues of relief;
he must also comply with all administrative deadlines and procedural rules”). Indeed, “a
prisoner must now exhaust administrative remedies even where the relief sought – monetary
damages – cannot be granted by the administrative process.” Booth v. Churner, 532 U.S. 731,
739 (2001).
The requirement that claims be exhausted prior to the filing of a lawsuit is mandatory and
non-discretionary. Gonzalez v. Seal, 702 F.3d 785 (5th Cir.2012). “Whether a prisoner has
exhausted administrative remedies is a mixed question of law and fact.” Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010). As “exhaustion is a threshold issue that courts must address to
determine whether litigation is being conducted in the right forum at the right time, . . . judges
may resolve factual disputes concerning exhaustion without the participation of a jury.” Id. at
272. The Supreme Court has also recognized the need for a prisoner to face a significant
consequence for deviating from the prison grievance procedural rules:
The benefits of exhaustion can be realized only if the prison grievance system is given
a fair opportunity to consider the grievance. The prison grievance system will not
have such an opportunity unless the grievance complies with the system’s critical
procedural rules. A prisoner who does not want to participate in the prison grievance
system will have little incentive to comply with the system’s procedural rules unless
noncompliance carries a sanction . . . .
Woodford at 95.

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Mississippi Code Annotated § 47-5-801 grants the Mississippi Department of Corrections
the authority to adopt an administrative review procedure at each of its correctional facilities.
Under this statutory authority, the Mississippi Department of Corrections has set up an
Administrative Remedy Program (“ARP”) through which an inmate may seek formal review of a
complaint or grievance relating to any aspect of his incarceration. This court approved the ARP
Program in Gates v. Collier, GC 71-6-S-D (N.D. Miss. Feb. 15, 1994). See also Marshall v.
Price, 239 F.3d 365, 2000 WL 1741549, at *1 (5th Cir.Nov. 6, 2000). On September 19, 2010,
the ARP process was changed from a three steps to two. See Gates v. Barbour, No. 4:71CV6JAD, Doc. 1242 (N.D. Miss. Aug. 19, 2010); Threadgill v. Moore, No. 3:10CV378-TSL-MTP,
2011 WL 4388832, at *3 n.6 (S.D. Miss. July 25, 2011).
The two-step ARP process begins when an inmate first submits his grievance in writing
to the prison’s legal claims adjudicator within thirty days of the incident. Howard v. Epps, No.
5:12CV61-KS-MTP, 2013 WL 2367880, at *2 (S.D. Miss.May 29, 2013). The adjudicator
screens the grievance and determines whether to accept it into the ARP process. Id. If accepted,
the grievance is forwarded to the appropriate official who then issues a First Step Response to
the complaining inmate. Id. If the inmate is unsatisfied with the first response, he may continue
to the Second Step by completing an appropriate ARP form and sending it to the legal claims
adjudicator. Id. The Superintendent, Warden or Community Corrections Director will then issue
a final ruling, or Second Step Response – which completes the ARP process. Id. If the inmate is
unsatisfied with that response, he may file suit in state or federal court. Id. The inmate may
exhaust the administrative remedy process if he complies with its requirements but the
Mississippi Department of Corrections takes more than 90 days to complete it:
The ARP also provides that “[n]o more than ninety (90) days from initiation to
completion of the process shall elapse, unless an extension has been granted” and that
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“expiration of response time limits without receipt of a written response shall entitle
the offender to move on to the next step in the process.”
Gates v. Cook, 376 F.3d 323, 330 (5th Cir. 2004).
This case must be dismissed because Mr. Britton did not exhaust his administrative remedies
prior to filing the instant suit – as required under the Prison Litigation Reform Act. 42 U.S.C.
§1997e(a). The seizure of Mr. Britton’s cellular phone occurred on March 24, 2016. He filed the
instant suit on May 9, 2016; however, the grievance process was not complete until June 9, 2016, the
date that Christy Gutherz, Deputy Commissioner of Community Corrections, responded to the
grievance through the United States Postal Service.1 Thus, Britton exhausted his administrative
remedies, but did so a month later. Even assuming Mr. Britton filed his grievance on March 24, 2016,
the date of the seizure, the 90-day period to complete the grievance process would have expired on
June 22, 2016 – which is still after Britton filed this suit. Thus, the plaintiff’s claims against the
Mississippi Department of Corrections defendants, Frank Caswell and Bonita Clark, must be
dismissed for failure to exhaust administrative remedies.
Britton’s Claims Fail on the Merits
Mr. Britton argues that the confiscation of his phone under the circumstances of this case
constitutes a violation of his Fourth Amendment right to be free from unreasonable searches and
seizures. As discussed below, however, the seizure was reasonable. The Fourth Amendment is brief:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.

1

It appears that Ms. Gutherz did not follow the normal protocol in processing the grievance regarding
the conduct of defendants Caswell and Clark, as she did not send the grievance first to the
Administrative Remedy Program coordinator. The court will assume, without deciding, that the
grievance process was completed by Ms. Gutherz’s response.
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U.S. Const. am. 4. It is also vague, which has led to its litigation in tens of thousands of cases during
the course of over 200 years of United States jurisprudence. Determining whether a search or seizure
is “reasonable” is nearly always the focus of a Fourth Amendment inquiry. The Framers did not,
however, define “reasonable” in the Constitution, which is why so many courts over the centuries
have struggled with the application of Fourth Amendment principles. Another reason is that the
Framers did not define “probable cause.”
Normally, a law enforcement officer may search or seize a criminal suspect only if the officer
has “probable cause” to do so. The probable cause test:
is an objective one; for there to be probable cause, the facts must be such as would
warrant a belief by “a prudent man,” “a man of reasonable caution,” or “a reasonable
discrete and prudent man.”
§ 3.3(b) Nature of probable cause, 2 Crim. Proc. § 3.3(b) (4th ed.) (internal citations omitted).
However, the test for search and seizure involving parolees is less stringent, requiring only
“reasonable suspicion,” a lesser showing than “reasonable belief.” United States v. Knights, 534
U.S. 112, 122, 122 S. Ct. 587, 593, 151 L. Ed. 2d 497 (2001). The “warrantless search of [a
parolee], supported by reasonable suspicion and authorized by a condition of probation, [is]
reasonable within the meaning of the Fourth Amendment.” Id. The Fifth Circuit, relying on
Knights, expanded that rule, holding that, upon reasonable suspicion, a probation officer may
conduct a warrantless search of a parolee even when such searches are neither specifically
authorized by a condition of probation nor based on an explicit state regulation. United States v.
Keith, 375 F.3d 346, 350 (5th Cir. 2004). A warrantless search of a parolee or his home based
upon reasonable suspicion of a probation violation is permissible as long as such searches have
been sustained by the courts of the state of conviction. Id. The Mississippi Supreme Court and
the Mississippi Court of Appeals have upheld such searches.

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In Barlow v. State, law enforcement officers received information provided through
anonymous tips that Barlow and an associate were in possession of drugs and that they could be
found in a certain area. Barlow v. State, 8 So. 3d 196, 199 (Miss. Ct. App. 2008). The officers
then arrested Barlow at a roadblock set up specifically to capture him. Id. Barlow argued that
the officers did not have probable cause to stop and arrest him without a warrant, but the
Mississippi Court of Appeals disagreed:
[I]n Robinson v. State, 312 So.2d 15, 18 (Miss. 1975), the Mississippi Supreme Court
concluded that “courts generally hold that although an inmate is released on parole, the
parole authorities may subject him, his home and his effects, to inspection and search
as may seem advisable to them.” This issue lacks merit.
Barlow v. State, 8 So. 3d 196, 202 (Miss. Ct. App. 2008). In reaching this decision, the
Mississippi Court of Appeals relied upon the Supreme Court’s holding in Samson v. California:
[P]arolees are on the “continuum” of state-imposed punishments. [Knights, 534 U.S.
at 119], 122 S.Ct. 587, 151 L.Ed.2d 497 (internal quotation marks omitted). On this
continuum, parolees have fewer expectations of privacy than probationers, because
parole is more akin to imprisonment than probation is to imprisonment. As this Court
has pointed out, “parole is an established variation on imprisonment of convicted
criminals.... The essence of parole is release from prison, before the completion of
sentence, on the condition that the prisoner abides by certain rules during the balance
of the sentence.” Morrissey [v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598 33
L.Ed.2d 484, 492 (1972) ]. “In most cases, the State is willing to extend parole only
because it is able to condition it upon compliance with certain requirements.”
Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Thus,
Mississippi courts have held that parolees are subject to warrantless searches based upon
reasonable suspicion of a parole violation.
Britton claims that Detective Brannon Rushing and Probation Officer Frank Caswell, without
a warrant, seized his cellular phone without legal authority to do so. Britton is mistaken, as Rushing
and Caswell had more than ample justification to seize his phone. As set forth above, a father had
observed his 14-year-old stepdaughter’s communications with Britton, who was 45 years old at the
time. Britton had asked her to come babysit for him, requested a photograph of her, and told her that
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her “short friend was cute.” He also asked about one of the young girl’s friends who liked black guys,
describing the attraction as “jungle fever.” The girl’s father was clearly concerned about the
inappropriate nature of the communications: repeated efforts to have his young daughter come to
Britton’s home, his request for a photograph of her, the discussion of his attraction to the young lady’s
friend, and sexual innuendo regarding another of her minor female friends. Based on this information,
Detective Rushing conducted an investigation, communicating with Britton while posing as the young
girl. At an interview set up by Frank Caswell, Britton’s probation officer, Britton refused to surrender
his cellular phone for inspection, as he is required to do under Mississippi law. It was at this point that
Detective Rushing seized Britton’s phone.
Unlike the law enforcement officers in Barlow, Officer Caswell and Detective Rushing had far
more than anonymous tips regarding Mr. Britton’s alleged violation of the terms of his supervised
release; they had a concerned father who had seen inappropriate text messaged between a teenaged
girl and Britton – a sex offender previously convicted of child exploitation. This information, coupled
with Rushing’s continued investigation, provided ample information to establish reasonable suspicion
that Britton was violating the terms of his supervised release. In addition, the court cannot help but to
note, as did both Caswell and Rushing, that shortly after his release, it appears Britton had returned to
the very type of behavior that led to his 2011 conviction in the first place. In his 2011 state court
criminal proceeding, Britton entered an Alford plea to the charge of child exploitation, acknowledging
that the State could prove, beyond reasonable doubt, that he had solicited a child to make a
“masturbation video”:
[The State] then detailed the evidence it would offer to show Britton had solicited a
child to make a “masturbation video.” The proffered proof included a forensic
computer examiner’s testimony about messages sent by Britton over a computer
network soliciting the minor to depict sexual acts for another viewer. The State also
described Britton's videotaped confession during which he admitted soliciting a minor
on another person's behalf.
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Britton v. State, 130 So. 3d 90, 93 (Miss. Ct. App. 2013). Indeed, it appears that Britton
continued his efforts to contact the young girl – even after he was aware that the police had
become involved. This is astonishing behavior for someone on supervised release for a sex
crime involving children. Clearly, Britton’s obvious and strong predilection for convincing
minors to record sexual acts on video, as well as his opportunity to delete potentially
incriminating data from his cell phone, pushed the information at Caswell and Rushing’s
disposal beyond “reasonable suspicion” into the realm of “reasonable belief,” which is sufficient
to provide probable cause to seize the phone, whether from a parolee or otherwise.
In any event, as Mississippi law permits probation and parole officers to subject “[a
parolee,] his home and his effects, to inspection and search as may seem advisable to them,” Barlow,
8 So. 3d at 202, the seizure and search of Britton’s cell phone was permissible under both state and
federal law. United States v. Keith, 375 F.3d 346, 350 (5th Cir. 2004). This is especially true
when, as here, an officer is concerned that a suspect will destroy evidence – and the officer
secures a search warrant immediately after the seizure. For these reasons, the plaintiff’s sole
claim in this case – violation of the Fourth Amendment prohibition against unreasonable
searches and seizures – is without substantive merit.
Supervisor Liability
Mr. Britton has not alleged that defendant Bonita Clark was personally involved in the seizure
and search of his cellular phone; as such, his claim against her must be based upon her position as a
supervisor of Officer Frank Caswell. A plaintiff proceeding under 42 U.S.C. § 1983 cannot establish
that a government official violated the plaintiff’s constitutional rights simply by virtue of the official’s
role as a supervisor. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). For a
plaintiff to state a valid claim under § 1983, he must “identify defendants who are either personally

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involved in the constitutional violation or whose acts are causally connected to the constitutional
violation alleged.” Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995) (citing Lozano v. Smith, 718
F.2d 756, 768 (5th Cir. 1983)). A § 1983 plaintiff cannot proceed against a prison official based solely
on the official’s participation in the prison grievance process. Dehghani v. Vogelgesang, 226
Fed.Appx. 404, 406 (5th Cir. 2007). There are only two scenarios in which a supervisor may be held
liable under § 1983: (1) when he affirmatively participates in the incident, and (2) when he
implements an unconstitutional policy that results in constitutional injury. Wernecke v. Garcia, 591
F.3d 386, 401 (5th Cir. 2009). Indeed, a federal court cannot hold a supervisor liable for failure to
supervise his subordinates – even when he is present on the scene – because, after Ashcroft v. Iqbal,
556 U.S. 662, 662, 129 S. Ct. 1937, 1939, 173 L. Ed. 2d 868 (2009), “a government official can be
held liable only for his own misconduct.” Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir.
2011).
Though failure to train employees may rise to the level of an official government policy –
giving rise to a claim under 42 U.S.C. § 1983, such claims are a rarity:
In limited circumstances, a local government’s decision not to train certain employees
about their legal duty to avoid violating citizens’ rights may rise to the level of an
official government policy for purposes of § 1983. A municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to train.
See Oklahoma City v. Tuttle, 471 U.S. 808, 822–823, 105 S.Ct. 2427, 85 L.Ed.2d 791
(1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more
nebulous, and a good deal further removed from the constitutional violation, than was
the policy in Monell ”). To satisfy the statute, a municipality's failure to train its
employees in a relevant respect must amount to “deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact.” Canton, 489 U.S.,
at 388, 109 S.Ct. 1197. Only then “can such a shortcoming be properly thought of as a
city ‘policy or custom’ that is actionable under § 1983.” Id., at 389, 109 S.Ct. 1197.
Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 1359–60, 179 L. Ed. 2d 417 (2011).
In this case, the plaintiff does not allege that Bonita Clark had any personal involvement or
was causally connected to the incident in any way. As such, this case should be dismissed as to
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Bonita Clark for failure to state a constitutional question.
Conclusion
For the reasons set forth above, the plaintiff’s sole remaining claim – that the defendants
violated his right to be free from unreasonable searches and seizures – is without merit and will be
dismissed. In addition, the plaintiff failed to exhaust administrative remedies as to his claims against
the two Mississippi Department of Corrections defendants, Frank Caswell and Bonita Clark. Further,
Ms. Clark will be dismissed from this case because she had no direct involvement in the events giving
rise to this case. Thus, the motions by the defendants for summary judgment will be granted; the
plaintiff’s motion for summary judgment will be denied, and judgment will be entered in favor of the
defendants in all respects. A final judgment consistent with this memorandum opinion will issue
today.

SO ORDERED, this, the 30th day of May, 2017.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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