Venuto v. Jackson County, Mississippi et al

Filing 14

ORDER granting 8 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 10/16/2014 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ANTHONY R. VENUTO
V.

PLAINTIFF
CAUSE NO. 1:13CV198-LG-JCG

JACKSON COUNTY, MISSISSIPPI;
JACKSON COUNTY SHERIFF’S DEPARTMENT;
SHERIFF MIKE BYRD AND OFFICER DONNIE
MOORE in their individual and official capacities;
and UNKNOWN DEFENDANTS 1-5

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS
SHERIFF MIKE BYRD AND OFFICER DONNIE MOORE’S MOTION FOR
SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY AND STATE
LAW INDIVIDUAL IMMUNITY
BEFORE THE COURT is the [8] Motion for Summary Judgment Based on
Qualified Immunity and State Law Individual Immunity filed by Defendants
Jackson County Sheriff Mike Byrd (“Sheriff Byrd”) and Jackson County police
officer Donnie Moore (“Officer Moore”) (collectively, “Defendants”) in their
individual capacities. Plaintiff Anthony R. Venuto did not oppose the Motion and
the time for doing so has now expired under Local Uniform Civil Rule 7. Having
considered the Motion, including the evidence submitted in support thereof, the
Supporting Memorandum, and relevant law, the Court is of the opinion that the
Motion is should be granted.
BACKGROUND
Plaintiff’s case arises out of an incident that occurred on September 9, 2011,
at a gas station in Vancleave, Mississippi. Officer Moore and another officer
responded to a disturbance call by a gas station employee, and ultimately arrested

Plaintiff for disorderly conduct, simple assault, and resisting arrest. Plaintiff then
filed this action in the Circuit Court of Jackson County, Mississippi against Jackson
County, Mississippi, Jackson County Sheriff’s Department, and Sheriff Byrd and
Officer Moore in their individual and official capacities, alleging violations of his
First, Fourth, and Fourteenth Amendment rights and various state law claims. The
action was removed to this Court, and Sheriff Byrd and Officer Moore moved for
summary judgment on the individual capacity claims against them.
Plaintiff was given sufficient time to complete discovery related to immunity
issues, but failed to do so and also failed to respond to Defendants’ Motion for
Summary Judgment. The Court notes that allegations in a Complaint are
insufficient to create a genuine issue of material fact on summary judgment. See
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); see also Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (on summary judgment, factual controversies
are resolved in favor of the nonmoving party, but only when there is an actual
controversy; that is, when both parties have submitted evidence of contradictory
facts). Therefore, the Court finds the following facts undisputed based on the
evidence before it for purposes of Defendants’ immunity defense:
On September 9, 2011, after his credit card was rejected at a gas station
pump, Plaintiff entered the gas station and a dispute ensued between Plaintiff and
one or more of the gas station employees. Employee Sharron Dawn McKee
(“McKee”) placed a disturbance call to the Jackson County Sheriff’s Department.
Officer Moore and Officer Heath Kelley (“Officer Kelley”) were then dispatched to
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the scene.
On his arrival at the scene, Officer Moore spoke with McKee. She told him
that when Plaintiff tried to use his credit card at the gas pump to pay for gas and
the card did not work, he entered the store and screamed at her. McKee told Officer
Moore that she then swiped the card for Plaintiff, but Plaintiff snatched the receipt
from her, refused to sign it, and returned to his vehicle cursing and yelling. While
Officer Moore was speaking to McKee, Plaintiff again entered the store yelling
about the receipt. Officer Moore instructed Plaintiff to return to his vehicle.
After speaking with McKee, Officer Moore exited the store and he and Officer
Kelley approached Plaintiff. During the approximately five minute conversation
with Plaintiff that ensued, Plaintiff cursed and yelled at both officers, including
getting close to Officer Moore’s face while doing so and threatening both officers
with bodily harm. The officers then advised Plaintiff that he was being placed
under arrest and told him to place his hands behind his back. Plaintiff refused.
The officers struggled with Plaintiff briefly and then were able to handcuff him and
place him in the back of Officer Moore’s patrol car. Officer Kelley told Plaintiff that
his walking cane was not needed and handed the cane to Plaintiff’s wife, who was
sitting in the vehicle.1 Officer Moore then took Plaintiff to the Jackson County

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Plaintiff claims in his Complaint that Officer “Moore grabbed the cane from
the inside of [Plaintiff’s] pickup, then tossed it into the truck bed and told [Plaintiff]
that he wouldn’t need a cane where he was going.” (Compl. 3 (¶11), ECF No. 4-1).
However, Plaintiff has not offered any evidence on summary judgment to support
this allegation. See King, 31 F.3d at 346. Likewise, although Plaintiff claims in his
Complaint that while in the patrol car, Officer Moore “pulled Plaintiff from the back
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Adult Detention Center, where he was charged with disorderly conduct, simple
assault, and resisting arrest.
STANDARD OF REVIEW
Summary judgment is mandated against the 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 has the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiff has not submitted any
argument or evidence in opposition to Defendants’ Motion. Nevertheless,
Defendants have the burden of establishing the absence of a genuine issue of
material fact and, unless they have done so, the Court may not grant the Motion,
regardless of whether any response was filed. Hibernia Nat’l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
Having reviewed Defendants’ Motion and the supporting evidence, the Court
finds that Defendants have met their burden of establishing the absence of a
genuine issue of material fact on the claims against them in their individual
capacities, and, thus, are entitled to judgment as a matter of law on those claims.

seat and caused him physical harm by pulling his arms up while he was in
handcuffs” and that Officer Moore “further injured Plaintiff by pushing and twisting
a yellow gun into his back” (Compl. 4 (¶14), ECF No. 4-1), Plaintiff has presented no
evidence of these allegations on summary judgment. See King, 31 F.3d at 346.
Officer Moore’s evidence that he did not touch Plaintiff in the patrol car (Moore Aff.
2, ECF No. 8-2) is therefore undisputed. See id. (“In the face of the defendant’s
properly supported motion for summary judgment, the plaintiff cannot rest on his
allegations to get to a jury without any significant probative evidence tending to
support the complaint.”) (citation and quotation marks omitted).
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DISCUSSION
I.

Federal law claims
Plaintiff makes the following claims against Defendants pursuant to 42

U.S.C. § 1983:
(1)

excessive force in violation of the Fourth and Fourteenth Amendments
(Count One);

(2)

false arrest/imprisonment in violation of the Fourth and Fourteenth
Amendments (Count Two); and

(3)

First Amendment retaliation (Count Three).

As an initial matter, the Court agrees with Defendants that Plaintiff may not
pursue his excessive force claim under the Due Process Clause of the Fourteenth
Amendment. Rather, the Fourth Amendment governs such claims.2 See Graham v.
Connor, 490 U.S. 386, 395 (1989). Accordingly, Defendants are entitled to judgment
as a matter of law in their individual capacities on Plaintiff’s Fourteenth
Amendment excessive force claim.3

2

Plaintiff could not state an excessive force claim under the Equal Protection
Clause, either, since he does not allege that he “received treatment different from
that received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th
Cir. 2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40
(1985)).
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The Court disagrees with Defendants that Plaintiff cannot state a false
imprisonment/false arrest claim under the Fourteenth Amendment. See Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988) (“Claims of false arrest [and] false
imprisonment . . . involve the guarantees of the fourth and fourteenth amendments
when the individual complains of an arrest [and] detention . . . without probable
cause.”). However, as discussed herein, that claim will be dismissed for other
reasons.
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Qualified immunity protects government officials 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.” Flores v.
City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). A government official is “entitled to qualified immunity
if his or her conduct was objectively reasonable in light of the legal rules that were
clearly established at the time of his or her actions.” McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002). If an official’s conduct was objectively
reasonable, it does not matter if that official’s conduct violated a constitutional
right; he is still entitled to qualified immunity. Nerren v. Livingston Police Dep’t, 86
F.3d 469, 473 (5th Cir. 1996). When a defendant invokes qualified immunity, the
burden is on the plaintiff to demonstrate that the defense does not apply.
McClendon, 305 F.3d at 323.
In evaluating a claim of qualified immunity, the Court considers (1) whether
the plaintiff has alleged a violation of a constitutional right, and (2) whether that
right was clearly established at the time of the alleged misconduct. Saucier v. Katz,
533 U.S. 194, 200 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223
(2009). Courts have discretion to determine which of these questions to address
first. Pearson, 555 U.S. at 236. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier, 533

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U.S. at 202.
A.

Sheriff Byrd

Sheriff Byrd cannot be liable under § 1983 on a respondeat superior theory;
he must have been personally involved in Plaintiff’s alleged injury to be liable. See
Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). There are no allegations in
Plaintiff’s Complaint that Sheriff Byrd was involved in the incident at issue. In
fact, Sheriff Byrd denies any personal involvement and the Plaintiff has failed to
demonstrate otherwise. At this summary judgment stage it is incumbent upon the
Plaintiff to create an genuine issue of material fact. Specifically, that Sheriff Byrd
was somehow personally involved in the incident which makes up the underlying
claims in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because
vicarious liability in inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.”) (emphasis added).4
B.

Officer Moore
i.

Excessive force (Count One)

“[T]o state a violation of the Fourth Amendment prohibition on excessive
force, the plaintiff must allege: (1) an injury that (2) resulted directly and only from

4

Plaintiff’s Complaint alleges that “the County and the Sheriff’s Department
failed to adequately and properly supervise and train its law enforcement officers,
including Deputy Moore, in various aspects of law enforcement procedure and
substance” (Compl. 6 (¶32), ECF No. 4-1). Policy and custom claims against Sheriff
Byrd in his official capacity are essentially claims against Jackson County,
Mississippi, and are not before the Court in this Motion.
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the use of force that was excessive to the need, and (3) the use of force that was
objectively unreasonable.” Bush v. Strain, 513 F.3d 492, 500–01 (5th Cir. 2008).
“Permissible force depends on the [1] severity of the crime at issue, [2] whether the
suspect posed a threat to the officer’s safety, and [3] whether the suspect was
resisting arrest or attempting to flee.” Aguilar v. Robertson, 512 F. App’x 444, 448
(5th Cir. 2013) (citations and quotation marks omitted).
While Plaintiff alleges in his Complaint that the officers grabbed him and
pulled him to the police car, he has offered no evidence on summary judgment to
support this allegation. Instead, the undisputed summary judgment facts show
that the only force used on Plaintiff by Officer Moore was a brief altercation in order
for the officers to handcuff Plaintiff when he refused to be handcuffed. Considering
the factors outlined above, under the circumstances – including Plaintiff’s physical
threats to the officers and his refusal to be handcuffed – the Court finds that the
brief use of force in order to handcuff Plaintiff was not excessive. Thus, Plaintiff
has failed to demonstrate a constitutional violation against Officer Moore. In
addition, the use of force outline above was not objectively unreasonable. See
Wagner v. Bay Cit, Tex., 227 F.3d 316, 321 (5th Cir. 2000) (“[E]ven law enforcement
officials who reasonably but mistakenly use excessive force are entitled to
immunity.”) (citation and quotation marks omitted). Accordingly, the Court finds
that Officer Moore is entitled to qualified immunity on Plaintiff’s excessive force
claim against him.

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ii.

False arrest/false imprisonment (Count Two)

To prevail on his § 1983 false arrest/false imprisonment claim, Plaintiff must
show that Officer Moore did not have probable cause to arrest him. Haggerty v. Tex.
S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). “Probable cause exists ‘when the
totality of the 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.’” Id. at 655-56 (citation omitted).
Therefore, Officer Moore is entitled to immunity “if a reasonable officer in his
position could have believed that, in light of the totality of the facts and
circumstances of which [Officer Moore] was aware, there was a fair probability that
[Plaintiff] had committed or was committing an offense.” Id. at 656. When there is
more than one charge, probable cause need only exist for one of the charges. Deville
v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009).
Defendants have not presented any evidence that tends to show that Plaintiff
was convicted of one or more of the offenses with which he was charged. In that
event claims for false arrest/false and imprisonment would be barred since a
conviction necessarily implies that there was probable cause for an arrest. See
Walter v. Horseshoe Entm’t, 483 F. App’x 884, 887 (5th Cir. 2012). Regardless, in
the absence of evidence of conviction for the underlying offenses, the Court finds
that at a minimum, Officer Moore could have reasonably believed that there was a
fair probability that Plaintiff had committed or was committing at least one of the

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offenses with which he was ultimately charged. For example, Officer Moore could
have reasonably believed that there was a fair probability that Plaintiff had
committed a simple assault against him by threatening him with bodily harm and
yelling and cursing at him, including getting close to his face while doing so. See
Miss. Code Ann. 97-3-7(1)(a) (“A person is guilty of simple assault if he . . . attempts
by physical menace to put another in fear of imminent serious bodily harm . . . .”).
Furthermore, again, Plaintiff has offered no evidence to show otherwise. See
O’Dwyer v. Nelson, 310 F. App’x 741, 745 (5th Cir. 2009) (“As applied to the
qualified immunity inquiry, the plaintiff must show that the officers could not have
reasonably believed that they had probable cause to arrest the plaintiff for any
crime.”). Officer Moore is entitled to summary judgment in his individual capacity
on Plaintiff’s false arrest/false imprisonment claims.
iii.

First Amendment retaliation (Count Three)

A citizen is entitled to bring a claim for First Amendment retaliation against
a government official in his individual capacity, such as Plaintiff’s claim against
Officer Moore in this action. See Lane v. Franks, 134 S. Ct. 2369, 2381 (2014).
However, to establish such a claim, Plaintiff must show (1) that he was engaged in
constitutionally protected activity, (2) that Officer Moore’s actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) that Officer Moore’s actions were substantially
motivated against Plaintiff’s exercise of constitutionally protected conduct. Keenan

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v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Even if Plaintiff could show these
elements, Officer Moore would still be entitled to immunity “[i]f probable cause
existed, . . . or if reasonable police officers could believe probable cause existed” for
Plaintiff’s arrest. Id. at 262.
Officer Moore argues that he is entitled to qualified immunity on Plaintiff’s
First Amendment retaliation claim because probable cause existed to arrest
Plaintiff. The Court finds that Officer Moore is entitled to immunity for a more
fundamental reason: there is no allegation or evidence currently before the Court
that Plaintiff was engaged in speech protected by the First Amendment.
Regardless, Officer Moore is also entitled to summary judgment in his individual
capacity on Plaintiff’s First Amendment retaliation claim because, as discussed
above, a reasonable police officer could have believed that probable cause existed for
Plaintiff’s arrest.
II.

State law claim of negligent infliction of emotional distress
Plaintiff’s state law claim of negligent infliction of emotional distress

(contained in Count Six) is only against Officer Moore and unknown defendants in
their individual capacities.5 (Compl. 7 (¶35), ECF No. 4-1). Officer Moore claims
that he cannot be held liable for negligent infliction of emotional distress based on
Miss. Code Ann. § 11-46-7(2) which provides, in pertinent part, that no employee of

5

Plaintiff also alleges state law claims of assault and battery and intentional
infliction of emotional distress against Officer Moore and the unknown defendants,
but Officer Moore has not moved for summary judgment on those claims at this
time.
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a governmental entity “shall be held personally liable for acts or omissions
occurring within the course and scope of the employee’s duties.” There is no
genuine issue of material fact that all alleged acts by Officer Moore occurred within
the course and scope of his police officer duties in responding to a public disturbance
telephone call. Therefore, Officer Moore is entitled to summary judgment on
Plaintiff’s state law claim for negligent infliction of emotional distress against him
in his individual capacity. See Bell v. Miss. Dep’t of Human Servs., 126 So. 3d 999,
1003 (Miss. Ct. App. 2013) (county official acting within course and scope of her
employment could not be held liable in her individual capacity on state law claim);
McBroom v. Payne, 1:06CV1222-LG-JMR, 2010 WL 3942010, at *9 (S.D. Miss. Oct.
6, 2010) (county police sergeant acting in the course and scope of employment held
immune from plaintiff’s negligent infliction of emotional distress claim).
CONCLUSION
There is no genuine issue of material fact with respect to the immunity
defenses raised by Sheriff Byrd and Officer Moore in their individual capacities.
IT IS THEREFORE ORDERED AND ADJUDGED that the [8] Motion for
Summary Judgment Based on Qualified Immunity and State Law Individual
Immunity by Defendants Jackson County Sheriff Mike Byrd and Jackson County
police officer Donnie Moore in their individual capacities is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Counts One, Two,
and Three against Sheriff Byrd and Officer Moore in their individual capacities and
Plaintiff’s claim for negligent infliction of emotional distress against Officer Moore
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in Count Six are DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 16th day of October, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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