Wallack v. Jackson County, Mississippi et al

Filing 51

ORDER granting Defendants Sheriff Mike Byrd and Lt. Curtis Spiers' 37 Motion for Summary Judgment Based on Qualified Immunity; dismissing with prejudice Plaintiff's claims against Sheriff Mike Byrd and Lt. Curtis Spiers in their individual capacities; and finding moot Defendants Jackson County, Mississippi, Sheriff Mike Byrd, and Lt. Curtis Spiers' 44 Motion to Strike. Signed by District Judge Halil S. Ozerden on 5/22/2014. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MATHEW CARY WALLACK
v.
JACKSON COUNTY,
MISSISSIPPI, et al.

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§
§
§
§
§

PLAINTIFF
Civil Action No. 1:13cv103-HSO-RHW
DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS SHERIFF MIKE BYRD AND LT. CURTIS SPIERS’
[37] MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED
IMMUNITY; DISMISSING WITH PREJUDICE PLAINTIFF’S CLAIMS
AGAINST SHERIFF MIKE BYRD AND LT. CURTIS SPIERS IN THEIR
INDIVIDUAL CAPACITIES; AND FINDING MOOT DEFENDANTS
JACKSON COUNTY, MISSISSIPPI, SHERIFF MIKE BYRD, AND LT.
CURTIS SPIERS’ [44] MOTION TO STRIKE
BEFORE THE COURT are a Motion for Summary Judgment Based on
Qualified Immunity [37], filed by Defendants Sheriff Mike Byrd and Lt. Curtis
Spiers, and a Motion to Strike [44] filed by Defendants Jackson County, Mississippi,
Sheriff Mike Byrd, and Lt. Curtis Spiers. These Motions are now fully briefed.
Having considered the Motions, related pleadings, the record, and relevant legal
authorities, the Court finds that Byrd and Spiers’ Motion for Summary Judgment
Based on Qualified Immunity [37] should be granted, and Plaintiff’s claims against
Byrd and Spiers in their individual capacities should be dismissed with prejudice.
Defendants Jackson County, Byrd, and Spiers’ Motion to Strike [44] is rendered
moot.

I. BACKGROUND
A.

Factual Background
This action stems from an incident which occurred in the emergency room of

Biloxi Regional Medical Center [“BRMC”] in Harrison County, Mississippi, on or
about April 1, 2010. Compl. [1] at 2. Plaintiff Mathew Cary Wallack [“Plaintiff” or
“Wallack”], a Board Certified Neurologist, was seeking medical attention at the
BRMC emergency room when emergency room personnel discovered what they
believed to be narcotic medication in Plaintiff’s possession. Id. at 4. BRMC
personnel called the Biloxi Police Department. Id. Plaintiff charges that the Biloxi
Police Department then “wrongfully and without just cause arrested” Plaintiff. Id.
at 5. Plaintiff contends that he possessed the necessary authorizations from the
Drug Enforcement Administration [“DEA”] to possess and dispense certain
narcotics and that he was then the owner and operator of Coastal Headache & Pain
Management Center in Ocean Springs, Mississippi, in Jackson County. Compl. [1]
at 3.
Following Plaintiff’s arrest by the Biloxi Police Department, on April 2, 2010,
Agent Ted Gilbert of the Narcotics Task Force of Jackson County, Mississippi [the
“Task Force”], sought and obtained a search warrant for Plaintiff’s medical office in
Ocean Springs. Search Warrant [37-3] at 2–7; see also Aff. of Lt. Curtis Spiers [372] at 1–2. Spiers was the commander of the Task Force at the time. Aff. of Lt.
Curtis Spiers [37-2] at 2. Jackson County, Mississippi, County Court Judge Sharon
Sigalas issued the search warrant. Search Warrant [37-3] at 2–7. Neither Spiers
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nor Byrd was present for the issuance or execution of the search warrant. Aff. of
Sheriff Mike Byrd [37-1] at 1; Aff. of Lt. Curtis Spiers [37-2] at 2. After the search
began, Spiers states that he received a call from a member of the Task Force
informing him what items were found. Aff. of Lt. Curtis Spiers [37-2] at 2. The
Task Force member requested guidance, and based on the information provided,
Spiers avers that he believed there was probable cause to seize the items covered by
the search warrant. Id. Therefore, Spiers directed the Task Force member to seize
those items. Id. According to Spiers, “[b]ecause of the items obtained pursuant to
the search warrant executed on Wallack’s office on or about April 2, 2010, the Task
Force’s investigation of Wallack continued for a period of two to three weeks.” Id.
The search warrant described the items for which the search was being
conducted as:
All Prescription medication in names other than Mathew C. Wallack, MD
and all other items supporting drug possession and distribution to include
U.S. Currency, weapons, drugs, paraphernalia, photo’s [sic], tally sheets,
weights, scales, packaging materials and documents.
Search Warrant [37-3] at 2. It is unclear on the summary judgment record before
the Court what items were ultimately seized from Plaintiff’s office. The inventory
sheet referenced on the search warrant return is not part of the record. See id. at 3.
Plaintiff asserts that Jackson County Sheriff Mike Byrd, Lt. Curtis Spiers,
and other members of the Task Force targeted Plaintiff and his business and
“vowed to put him out of business regardless of the cost and/or legitimacy of such
action.” Id. Plaintiff blames his arrest on Byrd and Spiers “prim[ing] the pump of
deception and irreparably caus[ing] doubt to come upon the name and person of the
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Plaintiff by disseminating false, incorrect and inaccurate information about [him]
throughout the medical and law enforcement communities along the Mississippi
Gulf Coast.” Id.
Plaintiff claims that, following his arrest, Byrd and Spiers “continued to
disseminate false, misleading, inaccurate and damning information that irreparably
injured the person, profession, name, and reputation of [Plaintiff], ultimately
causing him to surrender his medical license and to close his business.” Id. at 5–6.
Plaintiff complains of comments and accusations Spiers purportedly made in the
local media. Id. According to Plaintiff, the charges lodged against him in state
court were eventually dismissed with prejudice on April 23, 2012. Id. at 6.
B.

Procedural History
Plaintiff initiated this action by filing a Complaint [1] in this Court on April

1, 2013. Plaintiff named as Defendants Jackson County, Mississippi, by and
through its Board of Supervisors [“Jackson County”]; Jackson County Sheriff’s
Department [the “Sheriff’s Department”];1 Byrd, officially and in his individual
capacity; Spiers, officially and in his individual capacity; the Task Force, as an
individual agency of the government of Jackson County, Mississippi and/or as an
agent of Jackson County, Mississippi; other unknown John and Jane Does A-Z, also
in their official and individual capacities of the Task Force; the City of Biloxi,
Mississippi [the “City”]; other unknown John and Jane Does A-Z, also in their

1

On November 5, 2013, the Court granted the Sheriff’s Department’s Motion to
Dismiss [9], and dismissed Plaintiff’s claims against the Sheriff’s Department with
prejudice. Order [43] at 4.

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official and individual capacities as members of the Biloxi Police Department; and
BRMC.2 Compl. [1] at 1.
The Complaint advances claims against Byrd and Spiers for deprivation of
civil rights pursuant to 42 U.S.C. § 1983, conspiracy to interfere with civil rights
pursuant to 42 U.S.C. § 1985, and “neglect or failure to prevent conspiracy”
pursuant to 42 U.S.C. § 1986. Id. at 11–16. With respect to his § 1983 claim,
Plaintiff asserts that
Defendants were vested with the state authority and the non-delegable
responsibility and duty of adhering to, complying with and enforcing the
laws of the United States of America and the State of Mississippi.
Consequently, while acting under color of state law, individually and
collectively, the Defendants commenced to engage in a course of conduct
and to implement a policy, custom, usage, and plan or practice wherein
the rights, privileges or immunities of the Plaintiff, Mathew Cary
Wallack, were violated. Specifically, based on the facts adopted herein
and cited above the Defendants, jointly and severally, engaged in a course
of conduct that resulted in the violation of Mr. Wallack’s right to the
equal protection of the laws of the United States of America and the right
against unreasonable searches and seizures of his person, private and
business premises without just, proper and lawful cause pursuant to the
Fourth and Fourteenth Amendments to the Constitution of the United
States of America and the corresponding provisions of the Constitution
of the State of Mississippi, the right to procedural and substantive due
process of the law and the right not to be deprived of property without
just compensation pursuant to the Fifth and Fourteenth Amendments to
the Constitution of the United States of America, and of his Sixth
Amendment right to be free from unlawful prosecution and deprivation
of liberty.
Id. at 11–12. The Complaint seems to charge that Byrd and Spiers violated
Plaintiff’s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the

2

On March 17, 2014, the Court granted BRMC’s Motion to Dismiss [18] pursuant to
Federal Rule of Civil Procedure 12(b)(6), and dismissed Plaintiff’s claims against BRMC
with prejudice. Order [49] at 6.

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United States Constitution.
The Complaint also levels a claim against Byrd for “negligent hiring,
retention and failure to discipline or take necessary corrective action” based on
Spiers’ alleged conduct. Id. at 16. Plaintiff seeks injunctive relief, compensatory
and punitive damages, attorneys’ fees, costs, and expenses. Id. at 18–21. In their
present Motion for Summary Judgment [37], Byrd and Spiers seek dismissal of all
claims asserted against them in their individual capacities based upon the doctrine
of qualified immunity.
II. DISCUSSION
A.

Jackson County, Byrd, and Spiers’ Motion to Strike [44]
Defendants Jackson County, Byrd, and Spiers have filed a Motion asking the

Court to strike Exhibits “A” and “B” to Plaintiff’s Response [42] to Byrd and Spiers’
Motion for Summary Judgment [37]. Exhibit “A” is an August 29, 2013, thirty-one
count Indictment returned against Byrd in the Circuit Court of Jackson County,
Mississippi. Exhibit “B” consists of a “Motion to Revoke Bond, Hold Defendant in
Contempt, or in the Alternative, to Enforce Conditions of Bond” along with its
supporting exhibits filed by the District Attorney in the State court criminal
proceeding. The supporting exhibits include reports of Deputy Brad Lewis, Lt. Ken
McClenic, and Spiers. Defendants argue that the Indictment and Motion constitute
mere allegations which are completely irrelevant to the claims in this case. Defs.’
Mot. to Strike [44] at 2–3. They likewise assert that the facts stated in the reports
are unrelated to the facts in this case. Id. at 3.
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Plaintiff responds that the exhibits, while prejudicial, are not “unfairly
prejudicial” and demonstrate that Plaintiff’s claims have merit. Pl.’s Resp. [48] at
3–4. Plaintiff maintains that the exhibits “corroborate that there was a conspiracy
to violate the rights of people under their authority, such as Dr. Wallack, and
demonstrate the custom, practice, policy, and procedure, albeit subsequent and
regarding different facts, but by the same people.” Id. at 4.
Even taking Exhibits “A” and “B” and the supporting exhibits into account,
because the Court finds that Byrd and Spiers are entitled to qualified immunity in
their individual capacities, the Court need not resolve Defendants’ Motion to Strike
[44]. The Motion to Strike [44] is therefore moot.
B.

Byrd and Spiers’ Motion for Summary Judgment [37]
1.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “[i]f the movant shows 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). “A fact is ‘material’ if its resolution in favor of one party might affect
the outcome of the lawsuit under governing law. An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[O]ne of the principle
purposes of summary judgment is to isolate and dispose of factually unsupported
claims or defenses . . . .” Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d
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557, 559 n.1 (5th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–24
(1986)).
2.

Qualified Immunity Standard

The Fifth Circuit Court of Appeals has summarized the “clearly drawn bright
lines” and “rigorous background principles” of qualified immunity as follows:
[E]valuating qualified immunity is a two-step process, and the burden is
on the plaintiff to prove that a government official is not entitled to
qualified immunity. First, we determine whether the plaintiff has alleged
a violation of a clearly established constitutional or statutory right. A
right is clearly established only if its contours are sufficiently clear that
a reasonable official would understand that what he is doing violates that
right. The applicable law that binds the conduct of officeholders must be
clearly established at the time the allegedly actionable conduct occurs.
If the first step is met (i.e. the official’s conduct violates an established
right), the second step is to determine whether the defendant’s conduct
was objectively unreasonable. Both steps in the qualified immunity
analysis are questions of law.
Wyatt v. Fletcher, 718 F.3d 496, 502–03 (5th Cir. 2013) (emphasis in original)
(internal citations and quotations omitted).
Qualified immunity protects government officials from civil damages liability when
they reasonably could have believed that their conduct was not barred by law. Id.
at 503. Qualified immunity “is not denied unless existing precedent places the
constitutional question beyond debate.” Id. (emphasis in original).
When deciding whether the right allegedly violated was clearly
established, the court asks whether the law so clearly and unambiguously
prohibited the conduct that every reasonable official would understand
that what he is doing violates the law. Answering in the affirmative
requires the court to be able to point to controlling authority – or a robust
consensus of persuasive authority – that defines the contours of the right
in question with a high degree of particularity. This requirement
establishes a high bar. When there is no controlling authority specifically
prohibiting a defendant’s conduct, the law is not clearly established for
the purposes of defeating qualified immunity.
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Id. (internal citations and quotations omitted).
It is well-settled that “there is no vicarious or respondeat superior liability of
supervisors under section 1983.” Rios v. City of Del Rio, Tex., 444 F.3d 417, 425
(5th Cir. 2006) (citation omitted); accord Carnaby v. City of Houston, 636 F.3d 183,
189 (5th Cir. 2011)(“a government official can be held liable only for his own
misconduct.”). Thus a supervisory official like Byrd may be liable only if he (1)
affirmatively participated in acts that caused a constitutional injury;
(2) implemented unconstitutional policies that caused a constitutional injury; or (3)
failed to supervise or train his subordinates if such failure caused a constitutional
injury. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011); Goodman v. Harris Cnty.,
571 F.3d 388, 395 (5th Cir. 2009); Rayne v. Henderson Cnty., 973 F.2d 386, 392 (5th
Cir. 1992).
“In order to establish supervisor liability for constitutional violations
committed by subordinate employees, plaintiffs must show that the supervisor
acted, or failed to act, with deliberate indifference to violations of others’
constitutional rights committed by their subordinates.” Porter, 659 F.3d at 446; see
also Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th
Cir. 2008). Deliberate indifference “is a stringent standard of fault, requiring proof
that a [supervisory] actor disregarded a known or obvious consequence of his
action.” Porter, 659 F.3d at 446–47 (quotation omitted). “A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to
demonstrate deliberate indifference, because without notice that a course of
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training is deficient in a particular respect, decisionmakers can hardly be said to
have deliberately chosen a training program that will cause violations of
constitutional rights.” Id. at 447 (quotation omitted).
A supervisor may also be liable for failure to supervise or train if: (1) the
supervisor either failed to supervise or train the subordinate official; (2)
a causal link exists between the failure to train or supervise and the
violation of the plaintiff's rights; and (3) the failure to train or supervise
amounts to deliberate indifference.
Id. at 446 (quotation omitted). A plaintiff can also demonstrate deliberate
indifference in the failure to adopt a policy if “it is obvious that the likely
consequence of not adopting a policy will be a deprivation of constitutional rights.”
(citation omitted). Id.
3.

Plaintiff’s Fourth Amendment False Arrest Claim and Fifth and
Fourteenth Amendment Equal Protection and Due Process Claims
Against Byrd and Spiers Individually

Plaintiff claims that “his Fourth and Fourteenth Amendment rights were
violated when Defendants, Byrd and Spiers, manipulated the facts surrounding Mr.
Wallack’s Pain Management Medical Practice to create an inaccurate picture to
procure a false arrest and unlawful search and seizure of his person and property.”
Pl.’s Resp. [42] at 5–6. Plaintiff charges that Byrd and Spiers’ “intentional effort to
cultivate an irreparable misidentification constitutes a violation of due process,”
and that Byrd and Spiers “secured the subsequent charges leading to Mr. Wallack’s
arrest without probable cause.” Id. at 6.
a.

Plaintiff’s Unlawful Search and Seizure Claims

In this Circuit, there is no “freestanding, clearly established constitutional
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right to be free from a reckless investigation” or “malicious prosecution.”
Hernandez v. Terrones, No. 09-50659, 397 F. App’x 954, 966 (5th Cir. Oct. 20,
2011).3 “[A] claim for harm derived from being seized focuses on the Fourth
Amendment,” and “a claim for harm derived from being wrongly detained/falsely
imprisoned focuses on [the Due Process Clause of] the Fourteenth Amendment.”
Felter v. Brown, 5:11cv46-DCB-RHW, 2013 WL 5503720, *6 (S.D. Miss. Oct. 2,
2013)(citing Baker v. McCollan, 443 U.S. 137, 142 (1979)).
As for the alleged illegal search of Plaintiff’s medical office, Plaintiff has not
submitted any competent summary judgment evidence indicating that either Byrd
or Spiers had any involvement in the issuance of the search warrant. The evidence
adduced by Byrd and Spiers demonstrates that a neutral intermediary, Jackson
County, Mississippi, County Court Judge Sharon Sigalas, reviewed the Affidavit for
Search Warrant from Agent Ted Gilbert of the Task Force and made an
independent determination of probable cause for the issuance of a search warrant.
See Search Warrant [37-3] at 2–7. Generally, the intermediary’s decision to issue a
warrant breaks the causal chain and insulates the initiating party. Smith v.
Gonzales, 670 F.2d 522, 526 (5th Cir. 1982). Plaintiff has adduced no competent
summary judgment evidence that Byrd, Spiers, or anyone other than the affiant,
Agent Gilbert, was responsible for the preparation or presentation of the warrant

3

A panel of the United States Court of Appeals for the Fifth Circuit has also held
that selective prosecution allegations based upon personal vindictiveness do not equate to
allegation of a violation of a clearly established constitutional right. Hill v. City of Seven
Points, 31 F. App’x 835, 2002 WL 243261, at *14–*15 (5th Cir. 2002).

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application to the judge. See, e.g., Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir.
2005).
In Plaintiff’s Response [42], he contends that Spiers was an active participant
in the “obtainment of a search warrant based upon fabricated facts . . . .” Pl.’s Resp.
[42] at 12. Plaintiff, however, has presented no competent summary judgment
evidence supporting these conclusory allegations. Nor has Plaintiff explained which
specific facts in the Affidavit for Search Warrant were purportedly fabricated.
Conclusory allegations and assertions lacking evidentiary support are insufficient
to show that Byrd or Spiers violated a clearly established constitutional right. See,
e.g., Michalik, 422 F.3d at 262; Mace v. City of Palestine, 333 F.3d 621, 624 n.7 (5th
Cir. 2003).
Nor can this Court conclude that “the warrant application is so lacking in
indicia of probable cause as to render official belief in its existence unreasonable,
[such that] the shield of immunity [would] be lost.” Malley v. Briggs, 475 U.S. 335,
344–45 (1986). Further, Plaintiff has not asserted or supplied any evidence that
anyone exceeded the scope of the search warrant or that the search warrant was
executed unreasonably. Nor has Plaintiff presented any competent summary
judgment evidence detailing which property was allegedly illegally seized after the
Task Force’s search of his medical office. Based upon the record before the Court,
Plaintiff has not shown that an illegal search and seizure occurred. See Grimes v.

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Thompson, 416 F. App’x 465, 466–67 (5th Cir. 2011).4
b.

Plaintiff’s False Arrest Claim

With respect to Plaintiff’s arrest by the Biloxi Police Department on April 1,
2010, Byrd and Spiers have presented evidence that neither had any involvement.
Aff. of Sheriff Mike Byrd [37-1] at ¶ 2; Aff. of Lt. Curtis Spiers [37-2] at ¶ 6.
Plaintiff has not responded with competent summary judgment evidence
demonstrating any involvement by either Defendant in Plaintiff’s arrest. Plaintiff
offers only a conclusory statement in his Response [42] that Byrd and Spiers
“manipulat[ed] the reputation or picture of the suspect’s Medical Practice as one of
illegal drug activity to produce misidentification from an eye-witness . . . .” Pl.’s
Resp. [42] at 15. Plaintiff cannot rely on conclusory allegations to overcome
qualified immunity. See, e.g., Michalik, 422 F.3d at 262. Plaintiff does state in his
Complaint [1] and Response [42] that on April 23, 2012, “Circuit Judge Lisa Dodson
. . . completely dismiss[ed], with prejudice, the pretentious charges that were
erroneously lodged against then Dr. Wallack by the Biloxi Police Department
working in concert with the Jackson County officials . . . .” Compl. [1] at 6; Pl.’s
Resp. [42] at 18. However, the Court has not been provided with a copy of this
Order.

4

To the extent that Plaintiff is making a claim pursuant to the Takings Clause of the
Fifth Amendment, which is made applicable to the states through the Fourteenth
Amendment, this claim also fails. See U.S. Const. amend. V; see also Urban Developers
LLC v. City of Jackson, 468 F.3d 281, 292 (5th Cir. 2006). Plaintiff has not identified what
property was allegedly taken without just compensation. See Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537 (2005) (“The paradigmatic taking requiring just compensation is a direct
government appropriation or physical invasion of private property.”).

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Even if Plaintiff had supplied evidentiary support for his allegations,
Plaintiff’s claim that Byrd and Spiers falsely arrested him nevertheless fails. “In
order to prevail in a § 1983 claim for false arrest, a plaintiff must show that he was
arrested without probable cause in violation of the Fourth Amendment.” Parm v.
Shumate, 513 F.3d 135, 142 (5th Cir. 2007). “Probable cause exists when the
totality of facts and circumstances within a police officer’s knowledge at the moment
of arrest are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.” Ramirez v. Martinez, 716 F.3d 369, 375
(5th Cir. 2013) (emphasis omitted) (quoting Flores v. City of Palacios, 381 F.3d 391,
402 (5th Cir. 2004)). Based upon the summary judgment record in this case,
Plaintiff has not shown that the Biloxi Police Department lacked probable cause to
arrest him or that a false arrest occurred. See id. Byrd and Spiers are entitled to
qualified immunity on Plaintiff’s claims for false arrest.
Because Plaintiff has not met his burden of demonstrating that a violation of
any constitutional right occurred with respect to his Fourth and Fourteenth
Amendment claims, Byrd and Spiers are entitled to qualified immunity on these
claims. See Wyatt, 718 F.3d at 502–03. Plaintiff’s Fourth and Fourteenth
Amendment claims against Byrd and Spiers in their individual capacities should be
dismissed.5

5

To the extent Plaintiff alleges violations of the Due Process Clause or equal
protection component of the Fifth Amendment, these claims also fail. “The Fifth
Amendment applies only to violations of constitutional rights by the United States or a
federal actor.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000); see also Hill,
2002 WL 243261, at *13 n.4. Plaintiff has not alleged that either Byrd or Spiers acted

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4.

Plaintiff’s Sixth Amendment Claim

Plaintiff charges that Defendants violated his “Sixth Amendment right to be
free from unlawful prosecution and deprivation of liberty.” Compl. [1] at 12. The
Sixth Amendment provides that
[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense.
U.S. Const. amend. VI.
The Court has already considered Plaintiff’s “unlawful prosecution” and
“deprivation of liberty” allegations under the Fourteenth Amendment. It is unclear
from the allegations in the Complaint [1] what Sixth Amendment right Byrd and
Spiers allegedly violated. Plaintiff does not address his Sixth Amendment claim in
his Response [40]. Plaintiff has not carried his burden of demonstrating that Byrd
and Spiers violated a clearly established constitutional right under the Sixth
Amendment.
5.

Any Remaining Constitutional Claims

The contours of Plaintiff’s remaining constitutional claims, if any, against
Byrd and Spiers in their individual capacities are vague and inadequately briefed.
Plaintiff generally complains of Byrd’s criminal indictment on State charges and of
statements Byrd and Spiers allegedly made in the media about Plaintiff. Pl.’s Resp.

under any federal authority.

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[42] at 13, 16–18. Plaintiff does not explain how these alleged acts are relevant or
support a specific constitutional claim. Plaintiff’s failure to sufficiently explain or
support his claims or brief the law regarding them constitutes abandonment. Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
To the extent that the Complaint can be read as asserting a claim under §
1983 against Byrd for failure to supervise or train Spiers, see Compl. [1] at 16, any
such claim also fails. Failure to supervise or train claims “fail without an
underlying constitutional violation.” Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir.
2013). Plaintiff has not shown that Spiers violated any of his constitutional rights.
Accordingly, summary judgment is appropriate on any § 1983 against Byrd for
failure to supervise or train Spiers. See id.6
While the Complaint is not clear, liberally construing Plaintiff’s allegations
suggests that Plaintiff may also be attempting to assert a conspiracy claim against
Defendants under § 1985(3).
To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a
conspiracy involving two or more persons; (2) for the purpose of depriving,
directly or indirectly, a person or class of persons of the equal protection
of the laws; and (3) an act in furtherance of the conspiracy; (4) which
causes injury to a person or property, or a deprivation of any right or
privilege of a citizen of the United States. In so doing, the plaintiff must
show that the conspiracy was motivated by a class-based animus.

6

In the charge seeking supervisory liability, the Complaint makes a general
allegation regarding “employees of the Jackson County Sheriff Department and the
Narcotics Task Force of Jackson County, Mississippi.” Compl. [1] at 16. However, Spiers is
the only employee who is referenced by name, and all of the allegations center around
Spiers’ purported conduct. See id. Plaintiff has not specifically identified any other
employees under Byrd’s supervision who allegedly violated his constitutional rights. Nor
has Plaintiff presented evidence to establish any such violations.

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Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994) (citations omitted). “The
language [in § 1985(3)] requiring intent to deprive of equal protection, or equal
privileges and immunities, means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’
action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
The Complaint asserts that Byrd and Spiers stated “falsehoods and out-right
lies about him and the nature of his business” in order to “put him out of business.”
Compl. [1] at 4. Plaintiff has not alleged that Defendants discriminated against
him based on racial or other class-based grounds. Plaintiff has cited no authority,
and the Court is aware of none, finding that physicians fall within a suspect or
quasi-suspect class.7 Plaintiff’s Complaint therefore fails to state a claim under 42
U.S.C. § 1985. See id. The Court concludes that Byrd and Spiers enjoy qualified
immunity as to any federal constitutional claims Plaintiff may be asserting against
them in their individual capacities under 42 U.S.C. § 1985(3). See Southard v.
Texas Board of Criminal Justice, 114 F.3d 539 (5th Cir. 1997).
“Having failed to demonstrate a claim under § 1985, by definition [Plaintiff]
cannot sustain a claim under § 1986.” Lockett v. New Orleans City, 607 F.3d 992,
1002 (5th Cir. 2010) (citing omitted). Summary judgment is also appropriate as to
any claim by Plaintiff against Byrd and Spiers in their individual capacities under

7

Being a physician and owning a pain management clinic are the only
characteristics of Plaintiff identified in the Complaint. Likewise, Plaintiff’s Response [40]
maintains that Byrd, Spiers, the Sheriff’s Department, and the Task Force targeted Gulf
Coast physicians practicing in pain management. Pl.’s Resp. [40] at 5.

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42 U.S.C. § 1986.
6.

Plaintiff’s State Law Claims Against Byrd and Spiers Individually

The Complaint asserts that Byrd and other Defendants, not including Spiers,
were vested with the authority to hire, fire, retain, transfer and discipline
employees of the Jackson County Sheriff [sic] Department and the
Narcotics Task Force of Jackson County, Mississippi. On information
and belief the Plaintiff avers that Lt. Curtis Spiers had been involved in
several incidents of wrongdoing, use of excessive force and inappropriate
tactics without any disciplinary response or corrective action. Thus he
should never have been retained in this position nor his employment
continued in such capacity . . . .
Failure to properly train, employ and oversee the conduct of such
employees as Lt. Curtis Spiers constituted a blatant failure of
responsibility and dereliction of duty to the Jackson County Board of
Supervisors, and the leadership of the Jackson County Sheriff [sic]
Department and the Narcotics Task Force of Jackson County,
Mississippi.
Compl. [1] at 16.
A claim for negligent hiring, retention, and supervision is simply a negligence
claim. Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1229 (5th
Cir. 2005). From the face of the Complaint [1] it is clear that Plaintiff’s negligence
claim is asserted against Byrd, and not Spiers. The claim centers around Byrd’s
purported negligence in hiring, retaining, and supervising Spiers. Even if Plaintiff
had properly asserted such a claim against Spiers, as Plaintiff maintains in his
Response [42], both Byrd and Spiers are entitled to summary judgment under the
Mississippi Tort Claims Act, Mississippi Code §§ 11-46-1, et seq. [“MTCA”].
The MTCA waives “the immunity of the state and its political subdivisions
from claims for money damages arising out of the torts of such governmental
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entities and the torts of their employees while acting within the course and scope of
their employment . . . .” Miss. Code § 11-46-5. However, section 11-46-7(2) provides
that while
[a]n employee may be joined in an action against a governmental entity
in a representative capacity if the act or omission complained of is one for
which the governmental entity may be liable, . . . no employee shall be
held personally liable for acts or omissions occurring within the course
and scope of the employee’s duties.
Miss. Code § 11-46-7(2). Plaintiff’s Response [42] contends that he “specifically
alleges that the Defendants, Byrd and Spiers, were in individual and supervisory
roles acting within and without the scope of their employment.” Resp. [42] at 24.
However, the Complaint [1] clearly alleges that “at all times hereto” both Byrd and
Spiers were “acting in the course and scope of [their] employment” as employees of
Jackson County, Mississippi. Compl. [1] at 8–9. It is also clear from the record as a
whole that there is no dispute that the purportedly negligent acts complained of in
the Complaint occurred within the course and scope of Byrd’s and Spiers’ duties.
Byrd and Spiers are consequently absolved from personal liability for any
negligence under the MTCA. Miss. Code § 11-46-7(2). Dismissal of Plaintiff’s state
law claims against Byrd and Spiers is warranted.
C.

Plaintiff’s Request for Leave to Amend His Complaint
Plaintiff asks the Court to deny the Motion for Summary Judgment, or

alternatively, to grant him leave to amend his Complaint pursuant to Federal Rule
of Civil procedure 15(a). Pl.’s Resp. [42] at 25. Byrd and Spiers oppose this request.
Reply [45] at 14–15.
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Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should
freely give leave [to amend a pleading] when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, “[d]enial of leave to amend may be warranted for undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies, undue prejudice to the opposing party, or futility of a proposed
amendment.” Simmons v. Sabine River Auth., 732 F.3d 469, 478 (5th Cir. 2013)
(quotation omitted).
In this case, Plaintiff makes a general, one-sentence statement requesting
leave to amend. Plaintiff does not detail in what respect he would amend his
Complaint if afforded the opportunity to do so. Nor does it appear, particularly at
this stage of the proceedings, that any amendment to the Complaint would afford
Plaintiff any relief as to his claims against Byrd and Spiers in their individual
capacities. Therefore, any proposed amendment as to Plaintiff’s claims against
Byrd and Spiers in their individual capacities would be futile. Plaintiff’s request to
amend his Complaint will be denied.
III. CONCLUSION
The Court has considered all of the parties’ arguments. Those not specifically
addressed would not have changed the outcome. For the foregoing reasons, Byrd
and Spiers’ Motion for Summary Judgment Based on Qualified Immunity [37]
should be granted, and the Motion to Strike [44] filed by Jackson County, Byrd, and
Spiers is moot. Plaintiff’s claims against Byrd and Spiers in their individual
capacities will be dismissed with prejudice.
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IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants
Sheriff Mike Byrd and Lt. Curtis Spiers’ Motion for Summary Judgment Based on
Qualified Immunity [37] is GRANTED. Byrd and Spiers are entitled to qualified
immunity on Plaintiff’s individual capacity claims against them, and all federal
constitutional claims and state law claims against Sheriff Mike Byrd and Lt. Curtis
Spiers in their individual capacities are dismissed with prejudice.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendants
Jackson County, Mississippi, Sheriff Mike Byrd, and Lt. Curtis Spiers’ Motion to
Strike [44] is rendered MOOT.
SO ORDERED AND ADJUDGED, this the 22nd day of May, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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