Kimble v. Coffeeville Police Dept. et al

Filing 125

MEMORANDUM OPINION. Signed by Senior Judge Neal B. Biggers on 10/9/19. (jla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TYROWONE LOUIS KIMBLE

PLAINTIFF

V.

CIVIL ACTION NO.: 3:18CV38-NBB-RP

COFFEEVILLE POLICE DEPT., et al.

DEFENDANTS

MEMORANDUM OPINION

Plaintiff Tyrowone Louis Kimble, proceeding pro se and in forma pauperis, brings a
lawsuit pursuant to 42 U.S.C. § 1983 alleging, inter alia, that defendant Officer Gage Vance
violated his civil rights in both his individual and official capacity by using physical intimidation
during an arrest. ECF doc. 1. Following a Spears hearing, the Court ordered that Kimble could
proceed with his claim that Officer Vance threatened to shoot the Plaintiff if he did not allow a
search of his residence. ECF doc. 37. Officer Vance has filed a Motion for Summary Judgment
and Qualified Immunity asserting that he is entitled to qualified immunity because he used
reasonable, privileged force during the arrest and that Plaintiff cannot demonstrate that Officer
Vance is liable in his official capacity for any alleged excessive force. ECF doc. 105. Plaintiff
has responded to this motion. ECF doc. 109. Having fully considered the submissions of the
parties and the applicable law, the Court finds that Defendant Officer Vance’s motion should be
granted for the reasons below.
Summary Judgment Standard
Summary judgment is proper only when the pleadings and evidence, viewed in a light
most favorable to the nonmoving party, illustrate that no genuine issues of material fact exist,
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),(c); Celotex
Corp. v. Catrett, 477 U.S. 317,322-23 (1986). A fact is deemed "material" if "its resolution in
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favor of one party might affect the outcome of the lawsuit under governing law," and is
“genuine” if “the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009)
(quotation omitted). 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.
Once the motion is properly supported with competent evidence, the nonmovant must
show that summary judgment is inappropriate. Morris v. Covan World Wide Moving, Inc., 144
F.3d 377,380 (5th Cir. 1998); see also Celotex, 477 U.S. at 323. The nonmovant cannot rely upon
"conclusory allegations, speculation, and unsubstantiated assertions" to satisfy his burden, but
rather, must set forth specific facts showing the existence of a genuine issue as to every essential
element of his claim. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted);
Morris, 144 F.3d at 380. If the "evidence is such that a reasonable jury could return a verdict for
the nonmoving party," then there is a genuine dispute as to a material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). If no proof is presented, however, the Court does not
assume that the nonmovant "could or would prove the necessary facts." Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Factual Background
For the purposes of the summary judgment motion, the Court will consider the facts in
the light most favorable to the plaintiff. See Anderson, supra. On September 1, 2017, Kimble
was lawfully arrested at his residence in Coffeeville, Mississippi. At the time, the Plaintiff was
ordered to serve “weekend time” from 6:00 p.m. on Friday to 6:00 p.m. on Sunday for a charge

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of disturbing the peace. Kimble, who worked as a trucker, was delayed in returning to
Coffeeville and had obtained permission to report late for his weekend time. Meanwhile, the
Coffeeville Police Department had obtained a bench warrant for Kimble’s arrest based on
information that Kimble was present at his residence and had not reported to the jail. After being
presented with the bench warrant, Kimble walked out of the house with the officers and locked
his front door. At that time, Kimble was handcuffed and placed under arrest. Officer Vance then
stated that he smelled marijuana and asked to search Kimble’s residence. Kimble refused.
Kimble alleges that the officers then drew their weapons and intimidated him, coercing Kimble
to allow them to search his house.
The crux of Kimble’s allegation against Officer Vance is that, while Kimble was
handcuffed and under arrest, Officer Vance threatened and intimidated him. ECF doc. 1, pg. 5. In
his initial complaint, Kimble asserts that, while he was handcuffed at the front door, one of the
officers involved said he would shoot Kimble in the back and claim that Petitioner had attempted
to run. ECF doc. 1, pg. 5. Kimble clearly alleges in his complaint that Officer Vance threatened
and intimidated him but is unclear as to which officer allegedly threatened to shoot Kimble if he
did not allow them to search his residence. In his deposition, Kimble states that, while he and the
officers were at the side of the house, he was told, “they’ll shoot me and stuff like that if I didn’t
do it,” and that the officers had drawn their guns. ECF doc. 105-3, pg. 6. Kimble led the officers
to the back door, which he kicked down. At that point, the officers searched the home. While
Kimble claims that he was threatened and that Officer Vance brandished a weapon, he does not
allege any physical injuries.

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Analysis
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. Rather, 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, 475 U.S. at 586, 106 S.Ct. at 1356,
“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.” Other than the bare assertions in his complaint, the plaintiff has
presented no evidence that an officer threatened to shoot him if he did not allow them to search
his house. More importantly, Kimble has not offered any proof that it was specifically Officer
Vance who made such a threat.
Further, the Fifth Circuit has recognized:
[I]n the Eighth Amendment context, our circuit has recognized as a general rule
that “mere threatening language and gestures of a custodial office[r] do not, even if
true, amount to constitutional violations”. McFadden [v. Lucas], 713 F.2d [143] at
146 (quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977));
accord Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2nd Cir.) (the use of words, no
matter how violent, does not comprise a §1983 violation), cert. denied, 414 U.S.
1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Collins v. Cundy, 603 F.2d 825, 827
(10th Cir.1979) (verbal harassment consisting of sheriff's threat to “hang” prisoner
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does not state constitutional deprivation actionable under §1983).
Robertson v. Plano City of Texas, 70 F.3d 21, 24 (5th Cir. 1995). Kimble does not allege that he
suffered any physical injury as a result of Officer Vance’s actions. Instead, Kimble asserts that
he suffered “mental anguish, emotional distress, duress, [and] intimidation.” ECF doc. 1, pg. 5.
Similarly, to the facts in McFadden, while the actions alleged in this case are extreme, “absent
more, [they] cannot be said to rise to the level of conduct which ‘shocks the conscience.’”
McFadden, 713 F.2d at 147. Even taken as true, Kimble’s claim that Officer Vance threatened
and intimidated him does not rise to the level of a constitutional violation.
“[A]ll claims that law enforcement officers have used excessive force – deadly or not – in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard….” Graham v. Connor, 490 U.S.
386, 395 (1989). The Graham Court further held, “the question 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. at 397. Assuming arguendo that Kimble’s
account is true, at the time Officer Vance drew his gun, he had a suspect under arrest and was
preparing to enter a locked residence which they suspected to contain drugs. Officer Vance did
not know who might be waiting inside the house and whether they may be armed. In such
circumstances, it is not unreasonable for a law enforcement officer to draw his weapon.
Defendant Vance has asserted a defense of qualified immunity. Qualified immunity
shields a government official “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). The Fifth Circuit has held that the primary questions is, “whether, taking the facts in the
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light most favorable to the plaintiff, the officer's alleged conduct violated a constitutional right.”
Lytle v. Bexar County, Tex., 560 F.3d 404, 410 (5th Cir. 2009), citing Saucier v. Katz, 533 US
194, 201 (2001). “If we determine that the alleged conduct did not violate a constitutional right,
our inquiry ceases because there is no constitutional violation for which the government official
would need qualified immunity.” Id. Because the threats alleged by Kimble do not rise to the
level of a constitutional violation, there is no need to invoke qualified immunity in this case.
Accordingly, Defendant Vance’s motion for summary judgment is well taken.
Conclusion
For the foregoing reasons, the Court finds that Defendant Vance’s motion for summary
judgment should be granted. A separate order in accordance with this opinion shall issue this
day.
This, the 9th day of October, 2019.

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

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