Reed v. Johnson et al

Filing 77

MEMORANDUM OPINION re 76 Order on Motion to Dismiss, Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 5/25/2017. (adm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
RAY REED

PLAINTIFF

V.

CIVIL ACTION NO. 4:14CV176-SA-JMV

CHIEF PATRIC JOHNSON, et al.

DEFENDANTS

MEMORANDUM OPINION
Pending before the Court is Defendants’ Motion to Dismiss or, in the alternative, Motion
for Summary Judgment [74], filed March 20, 2017. Plaintiff, proceeding pro se, did not respond
to the motion.
Facts and Procedural History
This suit arises from allegations that Officer A. Williams of the Shelby Police
Department unlawfully searched Reed’s residence at the Shelby Health and Rehabilitation
Center. According to the complaint, Reed woke up on July 19, 2014 to find Officer Williams in
his room. Reed alleges he asked Officer Williams “Why are you in my room? I didn’t call for
you,” but that Officer Williams searched Reed’s closet, suitcase, and drawers for evidence of
illegal narcotics. Reed complains that he requested to see a warrant, and that Officer Williams
retorted, “My gun is my warrant.”
Reed contended that Defendant Fields, the administrator of Shelby Health and
Rehabilitation Center, initiated the search. Fields moved to compel arbitration, and the Court
held a bench trial on February 18, 2016 to determine whether Reed had signed the agreement.
Ultimately, the Court found that Reed signed the subject arbitration agreement, that it was not
void for unconscionability or unenforceable for lack of available forum. Accordingly, the Court
ordered that the claims against Fields be dismissed and sent to arbitration.

Reed’s remaining claim is against Municipal Defendants for violation of his Fourth
Amendment right to be free from unlawful searches. He advances this claim against the City of
Shelby as well as against Chief Johnson and “Officer A. Williams,” both in their individual
capacities. However, Reed has been unable or unwilling to participate in discovery regarding his
Section 1983 claim. Therefore, Municipal Defendants filed a Motion to Dismiss, citing Reed’s
continued failure to comply with orders from the Court. Defendants request that the Court
sanction Reed with dismissal of his claims under either Rule 41(b) or Rule 37 of the Federal
Rules of Civil Procedure. Alternatively, Defendants seek summary judgment on Plaintiff’s
Section 1983 claims under Rule 56.
Because the Court finds Defendants’ summary judgment motion dispositive, the Court
decides this case on the merits instead of examining the other requests.
Summary Judgment Standard
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
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).
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.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a

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genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when ... both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). 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).
Even though the Plaintiff did not respond to the instant summary judgment motion, Rule
56 makes it clear that there is “no summary judgment by default” and the lack of a response by
the Plaintiff does not alter the Court’s summary judgment inquiry. See FED. R. CIV. P. 56(e)
advisory committee notes to 2010 amendments. Summary judgment may only be granted if it is
appropriate to do so. See FED R. CIV. P. 56(a). “Although ‘[a] motion for summary judgment
cannot be granted simply because there is no opposition’ . . . a court may grant an unopposed
summary judgment motion if the undisputed facts show that the movant is entitled to judgment
as a matter of law.” Calais v. Theriot, 589 F. App’x 310, 311 (5th Cir. 2015) (quoting Hibernia
Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).
Analysis and Discussion
At the outset, the Court notes that Plaintiff has consistently failed to participate in
discovery and has not complied with the Court’s orders. Plaintiff’s responses to written
discovery were due no later than September 8, 2016. However, on October 19, Defendants’
counsel sent Plaintiff a letter informing him that they had not received his responses or document
production. The letter requested that Reed send responses by October 31, 2016, so as to avoid
extending the discovery deadlines. However, the Municipal Defendants did not receive a
response. Therefore, Defendants’ attorney sent another letter, this time asking that Reed sign a

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good faith Certificate no later than November 14, 2016. When Plaintiff did not send discovery,
Municipal Defendants filed a Motion to Compel, and the Court granted. The Court ordered
Plaintiff to respond to the requests no later than January 25, 2017. Defendants then wrote to
Plaintiff in order to determine if he would agree to seek an extension of the discovery and
motions deadlines, but Plaintiff never responded to this request either.
On January 25, 2017, Plaintiff filed a document consisting of a single page, advising that
someone named Nate McMullen had his legal materials.  Having received that document,
Municipal Defendants sought an extension of the discovery and motion deadlines in order to
further await written discovery from Plaintiff. The Court extended the discovery deadline to
March 6, 2017, and the motions deadline to March 20, 2017. However, despite this additional
time, Plaintiff has not directly responded to Defendants’ written discovery requests or to any
effort made by Defendants’ to confer with him.
Section 1983
Plaintiff’s first federal claim against the City of Shelby alleges that prior to the incident in
question, Shelby Police officers entered his room upon several occasions without permission and
looked through his personal possessions. He also claims that Chief Patrick Johnson participated
in at least one such unlawful entry and search. Additionally, he asserts that Johnson, being Chief,
is in charge of Shelby, Mississippi Police Department. Therefore, according to Plaintiff, because
he “sets and enforces the policies of the Department,” Johnson’s participation in the alleged
illegal entries and searches as well as knowledge of them imputes liability to the Shelby Police
Department and the City of Shelby itself.
It is well established that a city is not liable under Section 1983 on the theory of
respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed.

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2d 611 (1978). Instead, to establish municipal liability under Section 1983, a plaintiff must show
the deprivation of a federally protected right caused by action taken “pursuant to an official
municipal policy.” See Id., 436 at 691, 98 S. Ct. 2018. A plaintiff must identify: “(1) an official
policy (or custom), of which (2) a policymaker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy or custom.”
Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002) (citing Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
The existence of a policy can be shown through evidence of an actual policy, regulation,
or decision that is officially adopted and promulgated by lawmakers or others with policymaking
authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). Otherwise, “a single
decision by a policy maker may, under certain circumstances, constitute a policy for which a
[municipality] may be liable.” Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000).
However, this “single incident exception” is extremely narrow and gives rise to municipal
liability only if the municipal actor is a final policymaker. Bolton v. City of Dallas, 541 F.3d 545,
548 (5th Cir. 2008) (citing Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)).
Plaintiff attempts to allege the first two elements in his complaint. He appears to proceed
on the theory that Chief Johnson, as a policy maker, has promulgated a policy of requiring
searches in his room, indicated by his presence in the room.
However, because Plaintiff failed to respond to the Motion for Summary Judgment or
produce any discovery, he failed to produce any evidence in support of his claim that his
constitutional rights were violated. “When the movant has made a properly supported motion for
summary judgment by demonstrating an absence of evidence to support the non-movants’ case,”
as the Defendant did, the non-movants must “go beyond the pleadings and by . . . affidavits, or

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by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial’” Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir.
1994) (quoting FED. R. CIV. P. 56(e)) (citing Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2553).
Accordingly, Plaintiff had the burden of presenting evidence sufficient to demonstrate the
existence of a question of material fact on whether the Municipal Defendant violated his
constitutional rights. He did not do so. 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, 19 F.3d at 1537) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)).
As Plaintiff has failed to provide evidence of a constitutional violation, his individual
claims against “Officer A. Williams” and Chief Johnson must also fail. Qualified immunity
“shields government officials from . . . liability unless the official violated a statutory or
constitutional right that was clearly established at the time of the challenged conduct.” See
Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012). To be clearly
established, a right must be sufficiently clear “that every ‘reasonable official would [have
understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741,
131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640,
107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).
While Plaintiff has alleged that his Fourth Amendment rights were violated, he has not
provided any evidence as to this occasion, or any argument for why his claim should not be
dismissed. Conclusory allegations, without more, are insufficient to overcome summary
judgment. See Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir.
2004) (court does not accept conclusory allegations, unwarranted deductions, or legal

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conclusions); Jones v. Alcoa Inc., 339 F.3d 359, 363 n.4 (5th Cir. 2003) (“conclusory allegations
or unwarranted deductions of fact” not accepted as true).
Conclusion
Because Plaintiff has provided no evidence to support his Section 1983 claims, and
Defendant’s evidence is uncontroverted, there exists no genuine dispute of material fact.
Therefore, Defendant’s Motion for Summary Judgment [74] is GRANTED. Plaintiff’s 1983
claims are hereby dismissed, for he has presented no evidence as to his allegations. CASE
CLOSED.
SO ORDERED this, the 25th day of May 2017.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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