Williams v. Jackson County ADC et al
ORDER granting 139 Motion for Summary Judgment; granting 145 Motion for Summary Judgment; granting 146 Motion for Summary Judgment; granting in part and denying in part 148 Motion for Summary Judgment. Claims against defendants Jackson Count y, Lamar Palmer, Jessica Bolen, Kristi Bourn, Samantha Jones, Health Assurance LLC, City of Pascagoula, Lionel Bourgeois, Michael Dunn, and Steven Loris are dismissed with prejudice. Signed by Magistrate Judge Robert H. Walker on September 13, 2017 (King, Steve)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
RANDALL ALAN WILLIAMS
CIVIL ACTION NO. 1:15CV137-RHW
KRISTI BOURN et al
MEMORANDUM OPINION AND ORDER
Plaintiff Randall Alan Williams, proceeding pro se and in forma pauperis, filed a 42
U.S.C. § 1983 prisoner civil rights complaint alleging that various defendants violated his
constitutional rights by subjecting him to excessive force incident to an arrest and by failing to
provide adequate medical care subsequent to the arrest. Doc. . The Court conducted a
screening hearing on October 15, 2015. See Minute Entry (10/15/2015); Doc. [145-1]. There
are now several pending motions for summary judgment filed by the various Defendants. Doc.
   .
(1) The Arrest
In his complaint, Plaintiff alleged that on January 26, 2015, while being pursued by City
of Pascagoula police officers, he “ran a few yards on foot then laid down on the ground face first
and spread out his arms screaming out ‘I surrender. I give up.’” Doc.  at 6. Officer John Doe
#1 (later identified as Defendant Sergeant Scott Clayton) flipped the Plaintiff over and started
punching him “repeatedly” in the face while a K-9 Officer (Rambo) bit him two or three times.
Id. Officer Clayton then flipped Plaintiff back over and began searching him. Officer Clayton
poked himself with a syringe in Plaintiff’s pocket and started screaming obscenities. Id. Officer
John Doe #2 (later identified as Defendant Sergeant Richard Davis) released Rambo resulting in
14 more bites. Id. Plaintiff alleges that he never resisted arrest. Id. In an amended complaint,
Plaintiff added as Defendants Pascagoula police officers Joshua Ghabbour, Lionel Bourgeois,
Michael Dunn, and Steven Loris, whom he alleged were present during the arrest and had an
opportunity to intervene and protect Plaintiff from excessive force committed by Davis and
Clayton. Doc.  & .
At the screening hearing, Plaintiff elaborated on the factual allegations. He testified that
on the night of the incident he was a passenger in a vehicle driven by Christopher Allen Joiner
being pursued by police officers. Doc. [145-1] at 14. After about a 30-minute car chase,
Plaintiff and Joiner exited the car and ran a “short distance” into the back yard of a residence. Id.
at 15-16. Plaintiff testified that Joiner was a few feet ahead of him. Id. at 16. Joiner hit the
ground and Rambo was on him. Id. Plaintiff stated that he saw officers everywhere, so he laid
down on the ground and spread his arms out. Id. About 30 seconds later, Officer Clayton rolled
Plaintiff over on his back and started punching him in the face. Id. Officer Clayton rolled him
back over on his stomach. At that time, Plaintiff felt the dog bite him once or twice. Id. Officer
Davis and Officer Ghabbour then handcuffed Plaintiff. Id. at 16-17. According to Plaintiff,
Officer Ghabbour got pricked by a needle in Plaintiff’s pocket. Id. at 17. Officer Ghabbour
started screaming and backing up off of Plaintiff. Id. at 17. When Officer Ghabbour started
yelling, Officer Davis released Rambo who started biting Plaintiff again. Id. Plaintiff testified
that Officer Davis kept releasing Rambo to bite Plaintiff. Id. at 18. At one point, Officer Davis
pulled off Plaintiff’s shoe. Id. Rambo jumped forward and started biting Plaintiff’s foot and
toes. Id. After the officer got the dog off of him, Plaintiff was taken to the police cruiser for
transportation to the Pascagoula Police Station. Id. at 18-20.
Arresting Officers’ Account
The arresting officers submitted affidavits and police reports that provide a slightly
different account of the arrest. See Doc. [148-1] [148-3] [148-4] [148-7] [148-8] [148-9]  [148-11]. On the evening of January 26, 2015, at approximately 9:00 p.m., officers pursued
a vehicle driven by Joiner following the commission of an armed home invasion. Plaintiff and
Joiner were later charged with armed robbery relating to the events from January 26, 2017. Doc.
[145-1] at 14. In fact, Plaintiff later pleaded guilty to charges stemming from the incident. Doc.
[146-2] at 1-2. During the pursuit, Joiner stopped the car and the two fled on foot into a
residential neighborhood. Officer Davis exited his vehicle and released Rambo, while Officer
Davis pursued on foot. Officers Ghabbour and Clayton also pursued on foot. Eventually,
Rambo caught up to Plaintiff, bit him, and held onto his lower leg. Officer Davis instructed
Plaintiff to get on the ground multiple times. Plaintiff did not comply. Instead, Plaintiff’s hands
moved towards his waist. Officer Davis then approached Plaintiff and struck him with a closed
fist to his nose and forced him to the ground. When Officer Ghabbour arrived to assist with the
apprehension of Plaintiff, he saw Plaintiff in a seated position facing him, unsecured with his
hands free. Ghaboour ran into Plaintiff, knocking his upper body to the ground. Ghabbour and
Davis were then able to get Plaintiff’s hands behind his back and handcuffed. Officer Davis did
not immediately command Rambo to release out of concern for the safety of himself and the
other officers. Once Plaintiff was secured and handcuffed, Officer Davis commanded Rambo to
release. Once Rambo let go of Plaintiff, Officer Davis pulled Rambo back and did not release
him again. Following a search of Plaintiff, a handgun was recovered, as well as marijuana and a
syringe. Officer Bourgeois’ police report confirmed that Ghabbour’s hand may have been
punctured by the syringe in Plaintiff’s pocket.
According to the officers’ affidavits, Sergeant Clayton never entered the backyard where
Plaintiff was apprehended, was not part of Plaintiff’s apprehension, and had no physical contact
with Plaintiff. Likewise, Officers Dunn and Loris were involved in the pursuit of the fleeing
felons, but stated that they had no involvement in Plaintiff’s apprehension, which occurred in the
back yard. Rather, they were busy securing Joiner in the front yard, about 15 to 25 feet away,
separated from Plaintiff by a four-foot high chain link fence. Officer Bourgeois did not arrive at
the scene until after Plaintiff and Joiner had been secured and handcuffed.
Plaintiff filed a motion to compel production to the Court of video and audio recordings
that he alleged demonstrate the use of excessive force during his arrest. Doc. . Out of an
abundance of caution, the Court compelled production of the recordings. Doc. . The Court
received and reviewed the recordings and finds them to be inconclusive. They depict a chase,
but a fence obstructs the view of the camera. Rambo can be heard barking and Plaintiff can be
heard yelling, but the audio and video do not provide material summary judgment evidence on
any disputed issue of fact.
(2) Medical Treatment
In his complaint, Plaintiff alleged that he was denied medical care from January 26, 2015,
to February 15, 2015, for injuries sustained during the arrest. Doc.  at 7. Corporal Lamar
Palmer was the intake officer at Jackson County Adult Detention Center (JCADC) on the night
of January 26th. Id. He informed Plaintiff that only a nurse employed by Health Services, LLC
could send Plaintiff to the hospital. Id. Plaintiff alleged it was obvious that he needed stitches
and treatment. Id. He further alleged Nurses Kristi Bourn, Jessica Bolen and Jane Doe #1 (later
identified as Samantha Jones) failed to treat him and that the policy of Health Assurance LLC is
to give treatment only for life threatening injuries. Id.
At the screening hearing, Plaintiff testified that once he arrived at the Pascagoula Police
Station following his arrest he started asking every officer to please get him an ambulance and to
please get him some help. Doc. [145-1] at 20. He was informed that an ambulance was being
called. Id. According to Plaintiff, an EMT arrived on two separate occasions and told Plaintiff
to sign an “electronic box”. Id. at 20-22. Plaintiff signed the box each time. Id. He stated that
his face was swollen shut; he could not see and was very dizzy; so he was having problems
reading what the box said. Id. at 21. Plaintiff testified that on the second occasion, when he did
not sign the box right away, an officer in the booking area bowed up at Plaintiff and said “Oh, he
ain’t gonna sign the box”. Id. at 22. According to Plaintiff, he “realized real quick what was
going on” so he signed the box and sat back down. Id. Officer Mike Dunn then took Plaintiff’s
booking pictures. Plaintiff was later transported to JCADC. Id. at 22-23. Prior to the transport,
he had stayed at the Pascagoula Police Station for about an hour or hour and a half. Id.
Once he arrived at the JCADC, Plaintiff told Corporal Palmer he needed to see a doctor.
Id. at 23. Corporal Palmer explained that only nurses can authorize medical attention and the
nurses would not be at JCADC until the next day. Id. at 23-24. The next morning, Plaintiff was
seen by Nurse Kristi Bourn. Id. at 24. She gave him a bucket of water with Betadine in it and
gave Plaintiff gauze and ibuprofen. Id. According to Plaintiff, he had 14 dog bites, a toe
completely bitten in half, and a fractured nose. Id. Over the next three weeks, Plaintiff testified
that he was examined by medical staff, had his foot cleaned, and was given ibuprofen. Id. at 25-
27. Plaintiff complained that the medical staff used abusive language towards him. Id.
According to Plaintiff, he later received x-rays that showed his toe broken in three places. Id.
Medical Providers’ Account
Defendants submitted affidavits from Nurses Samantha Jones, Kristi Bourn, and Jessica
Bolen. Doc. [145-6] [145-7] [145-8]. Jones, Bourn, and Bolen were nurses employed by Health
Assurance, LLC working in the Medical Department at JCADC at the time of the allegations in
Plaintiff’s complaint. According to their affidavits, Plaintiff arrived at JCADC on January 27,
2015, at 2:03 a.m. with blood around his nose and on his right foot. Later that day, at
approximately 11:20 a.m., personnel in the Medical Department assessed Plaintiff’s condition.
Dr. Grayson ordered a foot soak with Betadine every day for three days, ibuprofen 400 mg twice
a day for three days, and Triple Antibiotic Ointment for the right toe every day for three days,
with a reassessment of Plaintiff after three days. On February 3, 2015, Plaintiff received a health
and mental status examination. His right foot was soaked in warm water with Betadine and he
was encouraged to leave the injury open to the air to heal better. Jones, Bourn, and Bolen all
stated that Plaintiff’s injuries did not require stitches and did not require that he be sent to the
hospital for other treatment. Plaintiff’s medical records corroborate the statements in the
affidavits of Jones, Bourn, and Bolen regarding his course of treatment. Doc. [139-2] at 2-8;
[145-2] at 8-9, 15. A physical examination of Plaintiff’s nose showed “mucosa, septum, and
turbinates normal”, without mention of any fracture. Doc. [148-6] at 3. X-rays taken on
February 19, 2015, foot showed a “normal right foot” “free of trauma or other abnormality”.
Doc. [145-4] at 18. Another x-ray taken June 16, 2015 also revealed a normal right foot with
“no fractures, dislocations, or soft tissue swelling.” Doc. [145-3] at 25.
Law and Analysis
Rule 56 provides that “[t]he court shall grant summary judgment if 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); Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627
F.3d 134, 138 (5th Cir. 2010). Where the summary judgment evidence establishes that one of
the essential elements of the plaintiff’s cause of action does not exist as a matter of law, all other
contested issues of fact are rendered immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Topalin v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992). In making its determinations
of fact on a motion for summary judgment, the court must view the evidence submitted by the
parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175,
178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of a material
fact and the appropriateness of judgment as a matter of law to prevail on its motion. Union
Planters Nat’l Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this
by informing the court of the basis of its motion, and by identifying portions of the record which
highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131. “Rule 56
contemplates a shifting burden: the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].”
John v. State of Louisiana, 757 F.3d 698, 708 (5th Cir. 1985). Once a properly supported motion
for summary judgment is presented, the nonmoving party must rebut with “significant probative”
evidence. Ferguson v. Nat’l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978).
(1) City of Pascagoula
With respect to Defendant City of Pascagoula, Plaintiff alleges that Pascagoula has a
policy of allowing excessive force against fleeing felons. At the screening hearing, Plaintiff
confirmed that this is the basis of his lawsuit against Pascagoula. When asked what proof he has
regarding the alleged policy or custom, Plaintiff admitted that he had no proof but indicated that
he planned to explore the issue in discovery.
To properly assert municipal liability under § 1983, a plaintiff must establish that the
municipality was a policy maker, that it had an official policy or custom, and that this policy or
custom was the “moving force” behind the violation of constitutional rights. See Monell v. Dep’t
of Social Servs., 436 U.S. 658, 694 (1978); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001). A city is not liable for constitutional violations committed by its employees unless
those violations result directly from a municipal custom or policy. Sanders-Burns v. City of
Plano, 594 F.3d 366, 380 (5th Cir. 2010). It is only when the execution of a government’s
policy or custom inflicts the injury that the government may be found liable. Monell, 436 U.S. at
679-80. Municipal liability may not be predicated on a theory of respondeat superior. SandersBurns, 594 F.3d at 380. Moreover, isolated violations do not constitute custom and policy.
Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984).
Plaintiff has failed to identify a municipal policy or custom that was the moving force
behind the alleged constitutional violation. Rather, Plaintiff argues that individual Pascagoula
police officers failed to follow Pascagoula’s policies and procedures. To establish municipal
liability under § 1983, “[t]he failure to follow procedural guidelines, standing alone, does not
implicate constitutional liability.” Evans v. City of Marlin, Texas, 986 F.2d 104 n.6 (5th Cir.
1993). In response to the motion for summary judgment, Plaintiff argues that the actions of
Pascagoula’s police officers are strictly prohibited by the City of Pascagoula’s policies and
procedures. Doc.  at 6-8. In other words, he is not implicating an unconstitutional policy
or custom. He merely argues that the individual officers failed to follow the applicable policy.
Plaintiff’s allegations are insufficient to establish a constitutional claim against Defendant City
of Pascagoula. Accordingly, the Court finds that the City of Pascagoula’s motion for summary
judgment should be granted. By the same token, any official capacity claims against Defendants
who were employees of the Pascagoula Police Department are dismissed because a claim
brought against a government employee in his official capacity is actually a claim against the
governmental entity itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
(1) Medical Care
Plaintiff alleges that he received inadequate medical care for treatment of injuries
sustained during his arrest. He alleges that when he arrived at JCADC, Defendant Palmer
refused to send him to the hospital, even though it was obvious that he needed stitches and
treatment. According to Plaintiff, Palmer relied on a policy that only a nurse employed by
Health Service, LLC would be authorized to send him to the hospital. He also alleges that
JCADC does not keep nurses on duty from 10:00 p.m. to 6:00 a.m. He further alleges that
Nurses Jones, Bourn, and Bolen failed to give adequate treatment for his injuries because they
should have sent him to the hospital for stitches, x-rays, and pain medication.
Plaintiff was a pre-trial detainee at the time of the alleged inadequate medical care. The
Fifth Circuit has recognized that there is no significant distinction between pretrial detainees and
convicted inmates concerning basic human needs such as medical care. See Gibbs v. Grimmette,
254 F.3d 545, 548 (5th Cir. 2001) (citing Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir.
1996) (en banc)). In other words, the same legal standard governs constitutional claims
concerning medical care by pretrial detainees and convicted inmates. See id.
To state a constitutional claim for denial of adequate medical care, a plaintiff must
demonstrate that defendants were deliberately indifferent to plaintiff’s serious medical needs,
such that it constituted an unnecessary and wanton infliction of pain. Estelle v. Gamble, 429
U.S. 97, 106 (1976). A prison official is not liable for the denial of medical treatment unless the
official knows of and disregards an excessive risk to inmate health or safety. Harris v.
Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). The Constitution guarantee prisoners “only
adequate, not optimal medical care.” Spriggins v. LaRavia, 2012 WL 1135845, at *4 (E.D. La.
Apr. 4, 2012) (emphasis in original), citing Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir.
2006). An allegation of malpractice or mere negligence is insufficient to state a claim. Hall v.
Thomas, 190 F.3d 693, 697 (5th Cir. 1999). Moreover, the fact that a prisoner disagrees with the
type of medical treatment does not constitute a constitutional deprivation. Norton v. Dimazana,
122 F.3d 286, 292 (5th Cir. 1997).
Plaintiff has failed to allege deliberate indifference. To the contrary, summary judgment
evidence demonstrates Defendants were not deliberately indifferent to his serious medical needs.
Plaintiff merely disagrees with the course of medical treatment. Plaintiff was arrested by City of
Pascagoula police officers at approximately 9:30 p.m. on January 26, 2015. Doc. [139-1] at 8;
Doc. [148-3] at 1. Acadian Ambulance Services twice arrived at the Pascagoula Police Station
to treat Plaintiff on the night of the arrest. Plaintiff admits that the EMTs inspected his wounds
and took his vital signs. Doc.  at 2-3. They first arrived at 9:52 p.m. Doc. [146-8] at 2.
EMT DeAnna Reynolds reported canine bit, minor abrasions, superficial small puncture on right
foot, and blood in nose. Id. at 3. Plaintiff apparently refused further treatment. Id. Acadian
Ambulance Services arrived a second time at 10:23 p.m. Doc. [146-8] at 5. EMT Adam Pitalo
reported Plaintiff’s chief complaint as chest pain. Id. An EKG was performed. Id. at 6. Again,
Plaintiff apparently refused further treatment. Id. at 7. While Plaintiff suggests that he signed
the “electronic box” refusing treatment out of confusion or under duress, the undisputed fact
remains that an ambulance was called on two occasions and that EMTs examined his injuries and
Plaintiff arrived at JCADC at 2:03 a.m. on January 27, 2015. Deputy Michael Nutefall
and Deputy Lamar Palmer of the Jackson County Sheriff’s Department spoke with the
transporting officer and spoke with Plaintiff on his arrival at JCADC. Doc. [139-4] & [139-5].
Based on their observations and conversations with the Pascagoula Police Department, they
determined that Plaintiff did not require emergency medical treatment. Id. Nutefall and Palmer
were aware that Acadian Ambulance Services had examined Plaintiff prior to his transfer to
JCADC. Id. Later that morning, at approximately 11:20 a.m., personnel at the JCADC Medical
Department examined Plaintiff’s injuries and ordered a foot soak with Betadine every day for
three days, ibuprofen 400 mg twice a day for three days, and Triple Antibiotic Ointment for the
right toe every day for three days, with a reassessment of Plaintiff after three days. Doc. [145-6]
[145-7] [145-8]. On February 3, 2015, Nurse Bourn conducted Plaintiff’s health and mental
status exam. Doc. [145-7] at 2. Plaintiff’s foot was soaked in warm water with Betadine and he
was encouraged to leave the injury open to the air so the injury would heal better. Id. The dog
bites were scabbed and healing. Id. On February 15, 2015, Plaintiff left JCADC for Central
Mississippi Correctional Facility. Plaintiff’s foot was x-rayed twice, which revealed no fractures
or abnormalities. Doc. [148-6] at 1-2. Defendants have presented summary judgment evidence
demonstrating the absence of a genuine issue of material fact regarding Plaintiff’s allegations of
deliberate indifference to his medical needs. The medical records and Plaintiff’s own testimony
demonstrate that in fact he received medical care. At most, Plaintiff has stated his disagreement
with the type or method of treatment because he believes he should have been taken to the
emergency room for stitches, x-rays, and pain medication. The nurses indicated that Plaintiff did
not need stitches nor did he require treatment at a hospital; the medical records (including x-rays
of his right foot) make no mention of fractures to his nose or toes; and he was prescribed
ibuprofen for pain while at JCADC.
The Court also finds that the claims against Jackson County should be dismissed.
Plaintiff alleges that Jackson County has a policy of having no medical staff at the JCADC from
10:00 p.m. to 6:00 a.m. As a consequence, he asserts that he could not get medical care when he
first arrived at JCADC. The summary judgment evidence demonstrates that Plaintiff was twice
seen by EMTs immediately after his arrest. Plaintiff arrived at JCADC shortly after 2:00 am.
He was visually assessed by Deputies Palmer and Nutefall, who also contacted the Pascagoula
Police Department about Plaintiff’s injury. They determined that he did not require emergency
medical treatment. Later that same day, medical staff examined and treated Plaintiff’s injuries.
Plaintiff has failed to identify a constitutional violation with respect to his medical care. Nor has
he identified a policy that was the moving force behind any alleged constitutional violation.
Plaintiff’s contention is that he should have received immediate and instantaneous medical care
at JCADC. Given the nature of his injuries and the fact that Plaintiff received medical care
immediately after his arrest and then again several hours after arriving at JCADC, he has failed
state a constitutional claim against Jackson County for inadequate medical care based on any
policy or custom.
Defendant Palmer is entitled to qualified immunity because his actions were objectively
reasonable under the circumstances. It is undisputed that Palmer visually assessed Plaintiff’s
injuries and discussed Plaintiff’s injuries with Pascagoula police officers after Plaintiff was
transferred to JCADC. In is also undisputed that Palmer was aware Acadian Ambulance
Services examined Plaintiff on two occasions prior to his transfer to JCADC. Plaintiff’s followup care by medical professionals indicated that he did not require a trip to the hospital, did not
require stitches, and did not have a broken toe. Palmer’s decision not to order Plaintiff
transported to the hospital for immediate care was not unreasonable under the circumstances.
The Court also finds that Plaintiff has failed to state a claim against the medical
providers, or any of the Defendants, for use of derogatory or abusive language. See Robertson v.
City of Plano, Texas, 70 F.3d 21, 24- (5th Cir. 1995); McFadden v. Lucas, 713 F.2d 143, 146 (5th
(2) Excessive Force
Plaintiff alleges that Defendant Davis and/or Defendant Clayton used excessive force
during his arrest. Although Plaintiff originally identified Officer Clayton as the individual who
punched him, Officer Davis admitted in an affidavit that he punched Plaintiff. Doc. [148-3].
Officer Ghabbour also admitted to knocking Plaintiff to the ground. Doc. [148-4]. In his
affidavit, Defendant Clayton stated that he was not part of Plaintiff’s physical apprehension, did
not have physical contact with Plaintiff, and did not enter the backyard where Plaintiff was
apprehended. Doc. [148-7]. The Defendants assert a defense of qualified immunity.
The qualified immunity analysis is a two-step inquiry. Glenn v. City of Tyler, 242 F.3d
307, 312 (5th Cir. 2001). First, the Court must determine whether the Plaintiff has alleged a
violation of a constitutional right. Id. Second, if the plaintiff has alleged a constitutional
violation, the Court must decide whether the conduct was objectively reasonable in light of
clearly established law. Id. If the officer’s actions are objectively reasonable in light of the facts
and circumstances confronting him, without regard to underlying intent or motivation, then he is
entitled to qualified immunity. Ramirez v. Knoulton, 542 F.3d 124, 128-29 (5th Cir. 2008). An
officer is protected by qualified immunity even when he reasonably, but mistakenly, believed the
circumstances justified using more force than in fact was needed. Saucier v. Katz, 121 S.Ct.
2151, 2158 (2001).
In order to state a claim for excessive force, the plaintiff must establish (1) an injury (2)
which resulted directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007). When determining whether a defendant used excessive force, the core inquiry is whether
the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm. Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998). Some of the
relevant objective factors in the inquiry regarding the application of force include (1) the extent
of the injury suffered; (2) the need for the application of force; (3) the relationship between the
need and the amount of force used; (4) the threat reasonably perceived by the defendant; and (5)
any efforts made to temper the severity of the forceful response. Id. at 838-39.
It is undisputed that Plaintiff suffered some injuries resulting from arrest. There is some
question as to the severity of those injuries, as the medical records do not support all of
Plaintiff’s allegations. What remains at issue is whether the force used by Defendant Davis
and/or Clayton was clearly excessive and unreasonable. Looking solely at Defendant Davis’
affidavit and the affidavits of other officers involved in the arrest, both Davis and Clayton would
be entitled to qualified immunity. Plaintiff was an armed, fleeing felon. Officers pursued
Plaintiff and his co-felon on foot, at night, in a residential neighborhood. During the pursuit,
Rambo caught up to Plaintiff, bit him, and held onto Plaintiff’s lower leg. As Davis moved
towards Plaintiff, Plaintiff turned to face Davis. Davis instructed Plaintiff to get on the ground,
but Plaintiff did not comply. Plaintiff’s hands moved towards his waist, at which point, Davis
struck Plaintiff in the face with a closed fist and forced him to the ground. Rambo assisted in
subduing Plaintiff until Plaintiff was secured and handcuffed. The force used by Davis was
applied in a good faith effort to subdue an armed, fleeing felon who posed a danger to Davis’
safety and the safety of other officers. Under this set of facts, Davis would be entitled to
qualified immunity. See Johnson v. Scott, 576 F.3d 658, 659-60 (7th Cir. 2009); Crenshaw v.
Lister, 556 F.3d 1283, 1292 (11th Cir. 2009). Likewise, Defendant Clayton would be entitled to
qualified immunity because he was not present at Plaintiff’s apprehension and had no physical
contact with Plaintiff.
Plaintiff’s allegations and testimony tell a different story. He alleged that he was lying
face down with his arms spread out screaming “I surrender”. After lying on the ground for about
30 seconds, Defendant Clayton rolled Plaintiff over and punched him repeatedly in the face.
Then, even after being subdued, Officer Davis released Rambo, who bit him multiple times.
According to the affidavit of Joiner, the assault went on for several minutes. Plaintiff’s
allegations and testimony create a disputed fact issue regarding the encounter between the police
officers and Plaintiff. If the officers’ accounts are believed, then Davis and Clayton are entitled
to qualified immunity. If Plaintiff’s account is believed, then Davis and/or Clayton are not
entitled to qualified immunity for punching Plaintiff repeatedly in the face after he had laid face
down on the ground for 30 seconds and loudly expressed his intention to surrender.
With respect to Rambo and the dog bites, until Plaintiff was subdued and in handcuffs,
Davis was justified in not calling off Rambo. In his complaint, Plaintiff alleged that Officer
Clayton pricked himself with a hypodermic needle and started screaming obscenities. At the
screening hearing, Plaintiff testified that it was Defendant Ghabbour who searched him for
weapons and pricked himself. Either way, Davis would be entitled to qualified immunity for
releasing Rambo at that point. In the dark and in the tense circumstances following a chase and
arrest of a fleeing, armed felon, Davis did not know why Ghabbour or Clayton was yelling. It
was reasonable for Davis to believe that Plaintiff was resisting and that Ghabbour or Clayton
needed assistance in ensuring that Plaintiff remained under control. However, Plaintiff further
alleged and testified that Davis released Rambo several times after Plaintiff had been subdued,
resulting in about 14 dog bites. Plaintiff submitted the affidavit of his fleeing co-felon,
Christopher Alan Joiner, who stated that he witnessed “Pascagoula Police officers, assault,
handcuff, and then use the K-9 officer dog to attack Randall Williams over and over for several
minutes.” Doc. [152-11]. Any subsequent release of Rambo after Plaintiff had been handcuffed
and completely subdued would not be protected by qualified immunity.
Based on the foregoing, the Court concludes that Plaintiff’s excessive force claim against
Defendant Davis should be allowed to proceed to trial. Out of an abundance of caution, the
Court will not dismiss Officer Clayton from the lawsuit. Plaintiff stated that Clayton punched
him repeatedly in the face. The summary judgment evidence suggests that Plaintiff was in fact
punched by Davis and not Clayton. It may be the case that Plaintiff is simply mistaken about the
identity of the officer who punched him. It is undisputed that at least one of the police officers
involved in the chase punched Plaintiff in the face. However, at the moment, the identity of the
officer(s) who punched Plaintiff remains an unresolved issue of fact.
(3) Failure to Intervene
Plaintiff alleges that several Defendants had the opportunity to intervene to prevent the
act of excessive force against him. Specifically, he asserts that Officers Joshua Ghabbour,
Lionel Bourgeois, Michael Dunn, and Steven Loris were standing only a few feet away but failed
to prevent the assault.
An officer may be liable under § 1983 for bystander liability when the officer (1) knows
that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable
opportunity to prevent the harm; and (3) chooses not to act. Whitley v. Hanna, 726 F.3d 631,
646 (5th Cir. 2013). Liability will not attach where an officer is not present at the scene of the
constitutional violation. Id. In determining whether a plaintiff has sufficiently alleged a claim
for bystander liability, courts should consider whether an officer acquiesced in the alleged
constitutional violation. Id.
Taking Plaintiff’s testimony and allegations as true, he contends that he was punched
“repeatedly” in the face and that Rambo kept biting him even after he was apprehended.
According to Joiner’s affidavit, the assault lasted for “several minutes”. Doc. [152-11]. As
explained above, the excessive force claim, which serves as the basis of Plaintiff’s failure-tointervene claim, has survived summary judgment. However, the undisputed summary judgment
evidence demonstrates that Defendants Dunn and Loris were in the act of apprehending,
securing, and searching Plaintiff’s co-felon at the time that Officers Davis and Ghabbour were
apprehending Plaintiff. Doc. [148-9]. Moreover, there was a four-foot high chain link fence
between the locations where Joiner and Plaintiff were apprehended. Id. Plaintiff has not offered
any testimony or competent summary judgment evidence disputing this characterization of the
facts. Accordingly, the undisputed summary judgment evidence demonstrates that Defendants
Dunn and Loris did not have a reasonable opportunity to prevent the harm allegedly committed
against Plaintiff by Defendants Davis and/or Clayton. The summary judgment evidence also
demonstrates that Defendant Bourgeois did not arrive on the scene until after Plaintiff was
handcuffed and in custody. Doc. [148-4] at 2; Doc. [148-11]. Other than Davis and Clayton, the
only officer specifically identified by Plaintiff who actively participated in the arrest is
Defendant Ghabbour. Accordingly, the motion for summary judgment is granted with respect to
Defendants Dunn, Loris, and Bourgeois. However, at this time, the failure-to-intervene claim
remains pending against Defendant Ghabbour.
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion for Summary
Judgment filed by Defendants Jackson County, Mississippi and Lamar Palmer are GRANTED.
The claims against Defendants Jackson County, Mississippi and Lamar Palmer are dismissed
IT IS FURTHER ORDERED that the  Motion for Summary Judgment filed by
Defendants Jessica Bolen, Kristi Bourn, Samantha Jones, and Health Assurance, LLC is
GRANTED. The claims against Defendants Jessica Bolen, Kristi Bourn, Samantha Jones, and
Health Assurance, LLC are dismissed with prejudice.
IT IS FURTHER ORDERED that the  Motion for Summary Judgment filed by
Defendant City of Pascagoula, Mississippi is GRANTED. The claims against Defendant City of
Pascagoula are dismissed with prejudice.
IT IS FURTHER ORDERED that the  Motion for Summary Judgment filed by
Defendants Lionel Bourgeois, Scott Clayton, Richard Paul Davis, Michael Dunn, Joshua
Ghabbour, and Steven Loris in their individual capacities is GRANTED in part and DENIED in
part. Plaintiff’s claim for excessive force against Defendants Scott Clayton and Richard Paul
Davis remain pending, as does the related failure-to-intervene claim against Defendant
Ghabbour. The claims against Defendants Bourgeois, Dunn, and Loris are dismissed with
SO ORDERED AND ADJUDGED, this the 13th day of September, 2017.
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE
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