Alford v. The City of Wiggins, Mississippi et al

Filing 84

MEMORANDUM OPINION AND ORDER granting 61 Motion for Summary Judgment. Plaintiff's claims against the City of Wiggins, Mississippi; Mayor Joel T. Miles and Chief of Police Matt Barnett in their official and individual capacities; and Wiggins Police Officers Randy Vinson and Douglas McBride in their official capacities are Dismissed. Signed by Chief District Judge Louis Guirola, Jr. on 3/8/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DAPHINE DOREENE ALFORD

PLAINTIFF

v.

CAUSE NO. 1:16CV19-LG-RHW

THE CITY OF WIGGINS, MS;
MAYOR JOEL T. MILES; CHIEF OF POLICE
MATT BARNETT; POLICE OFFICERS
RANDY VINSON, DOUGLAS MCBRIDE,
and OFFICERS JOHN DOES 1-5,
Individually and in their official capacities

DEFENDANTS

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the [61] Motion for Summary Judgment filed by the
City of Wiggins, Mississippi; Mayor Joel T. Miles and Chief of Police Matt Barnett in
their official and individual capacities; and Wiggins Police Officers Randy Vinson and
Douglas McBride in their official capacities (collectively, the “City”). Plaintiff Alford
was granted an extension of time to file a response, but she did not do so within the
time allowed. After due consideration of the City’s submissions and the relevant law,
it is the Court’s opinion that the City has shown the lack of a genuine issue of
material fact for the jury. The City’s Motion will be granted.
BACKGROUND
This case arises out of events occurring in the late evening of January 24, 2013.
Alford, a black female, alleges that on that night she was standing on a street corner

in Wiggins, Mississippi, conversing with her male companion. She alleges she was
arrested by Wiggins Police Officers Randy Vinson and Douglas McBride, both white,
even though “[s]he was not a suspect, not acting suspiciously and was not observed
committing any criminal act.” (Compl. 10, ECF No. 1). After her arrest, she was
“crudely, improperly and illegally searched,” whereupon the officers found “narcotic
paraphernalia.” (Id.). She was then “roughly manhandled,” handcuffed and forced
into the police vehicle for transport to the Stone County Correctional Facility. (Id. at
11).
Upon reaching the Correctional Facility, Alford alleges that Officer Vinson
“intentionally tripped and twisted her off-balance causing her to unexpectedly fall
forward, face first, directly into the pavement with the blunt impact injuring her
head, face, teeth and body.” (Id.). She alleges that Vinson and McBride dragged her
into the Correctional Facility while she loudly cried out from the intense pain. (Id.).
Inside the Correctional Facility, Alford alleges she was manhandled into a
small jail cell, where she was forced to the floor. She alleges Vinson kneeled on her
face, jaw, and neck to keep her down as she was stripped naked. She alleges that
Vinson touched her inappropriately while “the other Wiggins officer watched.” (Id.).
Officer Vinson, who had moved to a different area, returned to the area of the cell,
where Ms. Alford was protesting what they had done to her. When
[Alford] saw Officer Vinson staring at her she became completely
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emotionally overcome and outraged by what he had just done to her. A
Corrections Officer then sprayed pepper spray . . . in [Alford’s] face and
body even though she was nude, required medical attention for her
injuries and was not a threat to anyone.
(Id. at 13).
Alford alleges she was only able to wash the pepper spray from her body using
“a dirty cell commode’s unsanitary toilet water.” (Id.). Her pleas for help and
assistance were ignored by “the two Wiggins Officers” while they were nearby writing
up false criminal charges against her. (Id.).
Alford’s claims are pursuant to 42 U.S.C. § 1983 under the Fourth and
Fourteenth Amendments for excessive force, and false arrest, detention,
imprisonment, and prosecution. (Id. at 30-31). Additionally, she alleges a conspiracy
to abuse minorities pursuant to 42 U.S.C. § 1985. (Id. at 31). She may also have
alleged state law torts. The City moves for summary judgment on all of these claims.
In support of its Motion, the City provided a declaration from Chief of Police
Matt Barnett. (City Mot. Ex. D, ECF No. 61-4). Barnett states that the Wiggins
Board of Aldermen makes policy for the City. The City had a written policy on the
use of force, which required police officers use the appropriate amount of force
necessary dependent on the circumstances. (Id. at 2 (¶7); Def. Mot. Ex. C, ECF No.
61-3). The City’s written arrest policy “requires officers to act constitutionally and
the existence of probable cause to effectuate an arrest.” (Id.; Def. Mot. Ex. E, ECF No.
61-5). In regard to the incident in question here, Barnett states he was not involved
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and had no knowledge of it until after it had occurred. (Id. at 1 (¶3)). Barnett
determined that McBride and Vinson had violated City policy by being present during
the strip search and holding Alford in place while two female correctional officers
removed her clothing. (Id. (¶4)). As a result, McBride resigned and Vinson was
terminated. (Id.).
Additionally, the City provided deposition testimony from Alford. (City Mot.
Ex. A, ECF No. 61-1). Although there is a thorough discussion of all of the events of
the night in question, Alford’s testimony does not address a City policy of any kind.
She testified that she has no knowledge of the police department’s policies or the
training of the officers. (City Mot. Ex. A 165-66, ECF No. 61-1). Further, she had
only knowledge of rumors that police officers had “beat somebody up that same night
or a couple of days before that or something.” (Id. at 158-59).
THE LEGAL STANDARD
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). 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. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The plaintiff has not submitted any
argument or evidence in opposition to the defendants’ Motion. Nevertheless, the
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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).
DISCUSSION
I. Municipal Liability Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 affords a remedy to those who suffer, as a result of state
action, deprivation of rights, privileges, or immunities secured by the Constitution
and the laws of the United States. White v. Thomas, 660 F.2d 680, 683 (5th Cir.
1981). In order to establish the City’s liability under § 1983, Alford must show the
deprivation of a federally protected right caused by action taken “pursuant to an
official [ ] policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “A
plaintiff must identify: (1) an official policy (or custom), of which (2) a policymaker
can be charged with actual or constructive knowledge, and (3) a constitutional
violation whose ‘moving force’ is that policy or custom.” Valle v. City of Houston, 613
F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328
(5th Cir. 2002)). These three elements “are necessary to distinguish individual
violations perpetrated by local government employees from those that can be fairly
identified as actions of the government itself.” Piotrowski v. City of Houston, 237 F.3d
567, 578 (5th Cir. 2001).
Alford does not plead the existence of a written policy regarding wrongful
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arrest, detention, and/or excessive force against black citizens, but one that has
become pervasive, and that the City has condoned and encouraged. Official policy
may “arise in the form of a widespread practice that is ‘so common and well-settled as
to constitute a custom that fairly represents municipal policy.’” Peterson v. City of
Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579).
“A customary policy consists of actions that have occurred for so long and with such
frequency that the course of conduct demonstrates the governing body’s knowledge
and acceptance of the disputed conduct.” Zarnow v. City of Wichita Falls, 614 F.3d
161, 169 (5th Cir. 2010) (citing Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.
1984)).
“It is thus clear that a plaintiff must demonstrate ‘a pattern of abuses that
transcends the error made in a single case.’” Peterson, 588 F.3d at 850-51 (quoting
Piotrowski, 237 F.3d at 582). “A pattern also requires ‘sufficiently numerous prior
incidents,’ as opposed to ‘isolated instances.’” Id. (quoting McConney v. City of
Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)). A plaintiff seeking to withstand
summary judgment must provide sufficient evidence “to provide context that would
show a pattern of establishing a municipal policy.” Id. at 851.
Alford’s Complaint includes a lengthy preamble in which she charges that
[t]he City of Wiggins Police Department is almost all white. The
Wiggins Police Department has a well-known community reputation of
racial bias, animus and abusive actions towards minorities that has
existed for years. This racial bias, animus and abuse extends to any
“person of color,” especially African-Americans or other persons
considered black, and even to any white person who may be friends of,
have a relationship with, or be related to any person of color. This bias,
animus and abuse also extend [sic] to anyone who might otherwise be in
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a minority status including persons mentally and/or physically
handicapped or disabled.
(Compl. 2, ECF No. 1). Alford then describes two instances where she alleges racial
bias played a part in the City’s actions. The first is titled “Assault of a Disabled and
Partially Paralyzed White Man With Interracially Married Family.” (Id. at 3). Alford
describes an instance where a white man who had just been convicted was dragged
out of the Wiggins Municipal Court by three Wiggins Police Officers and assaulted in
the hall.1 The man’s sister was married to a “man of African-American ancestry.”
(Id. at 4). The second is titled “Assault of Disabled White Woman Stopped in Black
Section of Town” and describes the arrest of a white woman for driving while
intoxicated. (Id. at 5). She was reportedly “roughed up” by a number of white
Wiggins officers, and later assaulted by an officer at the Stone County Correctional
Facility. (Id.).
Despite Alford’s general allegations of abusive actions by the City against
black citizens, and her assertion that “Black Lives Matter But Not in Wiggins,
Mississippi,” (Id. at 7), Alford does not allege any specific instance where a black
citizen was wrongfully arrested, detained, charged or abused by the City. She has
alleged one somewhat factually similar instance of excessive force during an arrest
and detention, but she has provided no competent summary judgment evidence of any
incident. Without some evidence of any other similar actions, there cannot be

1

From later allegations, it appears that the man Alford refers to in this
section is Jack R. Smith, who pursued legal action against the City in this Court in
Smith v. City of Wiggins, et al., No. 1:14cv26-HSO-RHW (S.D. Miss. Jan. 24, 2014).
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sufficient evidence to establish a municipal policy. “A pattern requires similarity and
specificity; prior indications cannot simply be for any and all ‘bad’ or unwise acts, but
rather must point to the specific violation in question.” Peterson, 588 F.3d at 851
(quoting Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375,
383 (5th Cir. 2005)). Alford does not provides any evidence that the City had a
pattern or practice of using excessive force during an arrest or detention, or a pattern
or wrongfully arresting or prosecuting citizens. The City’s evidence shows instead
that Alford will not be able to establish an unconstitutional policy that could be a
basis for imposing municipal liability against the City under § 1983. Accordingly, the
City and its officials and employees in their official capacities are entitled to summary
judgment.
II. Individual Liability Under § 1983
The City argues that it is entitled to dismissal of the claims against Mayor Joel
Miles and Chief of Police Matt Barnett in their individual capacities. Alford testified
that neither Miles nor Barnett had any personal involvement in the incident, but the
officers were under Barnett’s command, and she “just wanted everybody that was
involved – I mean, everybody that, you know, could have avoided this incident” to be
named in her lawsuit. (City Mot. Ex. A 157-58, ECF No. 61-1).
There is no vicarious or respondeat superior liability of supervisors under §
1983. Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). The supervisor must
either be personally involved in the violation or otherwise have caused the violation.
Id. Since Miles and Barnett were only involved because of their supervisory or policy-

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making roles in the City, any § 1983 claim against them in their individual capacities
should be dismissed.
III. 42 U.S.C. § 1985
Alford mentions 42 U.S.C. § 1985 in her Complaint. (See Compl. at 9, 31).
This section prohibits, among other things, conspiracies to deprive any person equal
protection of the laws. 42 U.S.C. § 1985(3). However, Alford does not develop a
conspiracy claim in her allegations. To state a claim under § 1985(3), a plaintiff must
allege facts demonstrating (1) a conspiracy; (2) for the purpose of depriving a person
of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4)
which causes injury to a person or a deprivation of any right or privilege of a citizen of
the United States. Lockett v. New Orleans City, 607 F.3d 992, 1002 (5th Cir. 2010)
(citing Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994)). Additionally, the
conspiracy must also have a racially based animus. Id.
If Alford intended to bring a claim under § 1985(3), she must identify a
conspiracy involving two or more persons. Hilliard, 30 F.3d at 653. The named
defendants in this case are officials and employees of the City of Wiggins. The City
and its officials, agents, and employees constitute a single legal entity which cannot
conspire with itself for purposes of § 1985(3) under the intracorporate conspiracy
doctrine. See Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998);
Hilliard, 30 F.3d at 653. Additionally, there are no factual allegations establishing a
conspiracy, nor does Alford provide evidence of a conspiracy. For these reasons,
Alford’s § 1985(3) claim should be dismissed.

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IV. State Law Claims
In the event that Alford has alleged state law tort claims against the City, the
City argues that any such claims are intentional tort claims and, therefore, are
procedurally barred. The City argues that Alford had until January 24, 2014, one
year after the incident, to file suit based on any alleged intentional tort committed by
any defendant. Miss. Code Ann. § 15-1-35; Gilmer v. Trowbridge, No. 3:08cv136-TSLJCS, 2009 WL 4113711, at *3-4 (S.D. Miss. Nov. 23, 2009) (to the extent intentional
torts fall outside of the MTCA, the applicable statute of limitations is the one-year
period in Miss. Code Ann. § 15-1-35); McBroom v. Payne, No. 1:06cv1222-LG-JMR,
2010 WL 3942010, at *9 (S.D. Miss. Oct. 6, 2010) (explaining that battery, assault,
and intentional infliction of emotional distress claims “cannot be considered ‘within
the course and scope of employment’ under the [MTCA]”). Alford’s Complaint was
filed January 20, 2016, and therefore any intentional tort claim is untimely.
IT IS THEREFORE ORDERED AND ADJUDGED that the [61] Motion for
Summary Judgment filed by the City is GRANTED. Plaintiff’s claims against the
City of Wiggins, Mississippi; Mayor Joel T. Miles and Chief of Police Matt Barnett in
their official and individual capacities; and Wiggins Police Officers Randy Vinson and
Douglas McBride in their official capacities are DISMISSED.
SO ORDERED AND ADJUDGED this the 8th day of March, 2017.

s/

Louis Guirola, Jr.

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

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