Hale v. City of Biloxi, Mississippi et al
MEMORANDUM OPINION AND ORDER granting 78 Motion for Summary Judgment; granting 86 Motion for Summary Judgment; granting 91 Motion for Summary Judgment. Those claims are dismissed with prejudice; and Plaintiff Hale's state law claims are dismissed without prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 7/20/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ALLEN DOUGLAS HALE, III
CAUSE NO. 1:16CV113-LG-RHW
CITY OF BILOXI, MISSISSIPPI,
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY
JUDGMENT ON PLAINTIFF’S FEDERAL CLAIMS AND DECLINING TO
EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS
BEFORE THE COURT are the [78, 86, 91] Motions for Summary Judgment
filed by Defendants City of Biloxi, Mississippi, Kenneth Garner (sued in his
individual capacity only), and Darren Lea (sued in his individual capacity only)
with respect to the Amended Complaint filed by Plaintiff Allen Douglas Hale, III.
The Motions have been fully briefed. Having considered the submissions of the
parties and the relevant law, the Court is of the opinion that Defendants are
entitled to summary judgment on Plaintiff Hale’s federal claims brought pursuant
to 42 U.S.C. § 1983. The Court declines to exercise supplemental jurisdiction over
the remaining state law claims.
According to the Amended Complaint, Defendants Garner and Lea are or
were police officers employed by Defendant City of Biloxi. In April 2015, the
Defendant Officers came to Hale’s mother’s mobile home “to purportedly effectuate
an arrest warrant on” Hale for credit card fraud. (See Am. Compl. 5, ECF No. 28).
Hale alleges that when they arrived at the residence, “the Defendant Officers only
announced their presence and demanded for Mr. Hale to open the door to the mobile
home.” (Id.). Hale states that he was unarmed and “fully obeyed the officers’
[u]pon opening the front door, Mr. Hale was confronted with multiple
police officers with firearms and/or [tasers] drawn and pointed directly
at him. Although Mr. Hale inquired as to the reason that Defendant
Officers were present at his home, the Defendant Officers refused to
notify him of the reason for their presence [and did not] notify Mr.
Hale that they were there to serve an arrest warrant on him or that he
was under arrest.
(Id.). Hale alleges that Defendant Lea immediately tased him “without any
provocation, warning, threats or resistance by” him, and, additionally, “Defendant
Garner simultaneously discharged his firearm at Mr. Hale, shooting Mr. Hale in his
abdominal region.” (See id. at 6). Hale was eventually transported to the hospital
where he received treatment for his injuries.
Hale instituted this civil action against Defendants Garner, Lea, and City of
Biloxi under 42 U.S.C. § 1983 and the Mississippi Tort Claims Act (MTCA). He has
stated claims for (1) § 1983/Fourth Amendment excessive force against Defendant
Garner in his individual capacity for shooting Hale; (2) § 1983/Fourth Amendment
excessive force against Defendant Lea in his individual capacity for tasing Hale; (3)
§ 1983 municipal liability against Defendant City of Biloxi based on the alleged
excessive force; and (4) reckless disregard under the MTCA against all Defendants.
Defendants have moved for summary judgment on all claims stated against
them. A motion for summary judgment shall be granted “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). In reviewing a motion for
summary judgment, the Court views the evidence in the light most favorable to the
non-movant. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). If
the movant carries its burden of demonstrating the absence of a genuine issue of
material fact, the burden shifts to the non-movant to show that summary judgment
should not be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
The non-movant’s “burden is not satisfied with some metaphysical doubt as
to the material facts, by conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (citations and quotation marks omitted); see also Sanches v. Carrollton
Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011). The Court will
not, in the absence of proof, assume that the non-moving party could or would prove
the necessary facts. Little, 37 F.3d at 1075.
Hale contends that one or more City officials destroyed or intentionally lost
video from Defendant Lea’s body camera, and that such conduct creates an adverse
inference that is sufficient to overcome summary judgment on all claims. “‘Under
the spoliation doctrine, a jury may draw an adverse inference that a party who
intentionally destroys important evidence in bad faith did so because the contents of
[the evidence] were unfavorable to that party.’” Schreane v. Beemon, 575 F. App’x
486, 490 (5th Cir. 2014) (citation omitted). “An adverse inference of spoliation can
be relevant on summary judgment.” Id. “The Fifth Circuit permits an adverse
inference against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad
conduct.’” Id. (citation and quotation marks omitted). It is within the Court’s
discretion whether to permit an evidentiary inference of spoliation. See id.
While there is some dispute as to whether Lea’s body camera was functioning
at the time and whether it produced any video at all, for summary judgment
purposes, the Court accepts Hale’s claim that a video exists. However, there is no
genuine dispute – beyond Hale’s mere speculation, which is not probative on
summary judgment – that Lea did not remember to turn on his body camera until
after the tasing or shooting. Therefore, the resulting video would be tangentially
relevant to the actual claims in this action at best. Regardless, having reviewed the
evidence, the Court is of the opinion that Hale has not made the requisite showing
of bad faith or bad conduct necessary to draw an adverse inference. See, e.g., Moss
v. Alcorn Cty., No. 1:13-CV-00167-SA-DAS, 2015 WL 419655, at *4-5 (N.D. Miss.
Feb. 2, 2015). At most, he has shown that the video, if it exists, was misplaced, but
“‘[m]ere negligence is not enough . . . .’” See id. at *4 (citation omitted).
EXCESSIVE FORCE AGAINST THE DEFENDANT OFFICERS (SECTION 1983)
When a defendant invokes qualified immunity, the burden is on the plaintiff
to demonstrate that the defense does not apply, but “all inferences are drawn in his
favor.” See Brauner v. Coody, 793 F.3d 493, 497 (5th Cir. 2015) (citation, quotation
marks, and brackets omitted); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
In evaluating 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).
The Defendant Officers contend that Hale cannot satisfy either prong of the
qualified immunity analysis. With respect to the first prong, to state a Fourth
Amendment excessive force claim, Hale must show “that he suffered: (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.” Brown v. Lynch, 524
F. App’x 69, 79 (5th Cir. 2013). At issue here are the second and third factors, and
in particular whether the force was clearly excessive and whether the excessiveness
was clearly unreasonable. Inquiries into these factors “are often intertwined.”
Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).
“Permissible force depends on the  severity of the crime at issue, 
whether the suspect posed a threat to the officer’s safety, and  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); Graham v.
Connor, 490 U.S. 386, 396 (1989). Here, the alleged crime – credit card fraud –
while serious, is not violent offense. Viewing the evidence in the light most
favorable to Hale, the Court accepts for summary judgment purposes that Hale was
unaware that there was a warrant for his arrest and was never told prior to being
shot and tased that he was under arrest, and, thus, could not have been resisting
arrest or attempting to flee.
Accordingly, the relevant, dispositive inquiry for summary judgment
purposes is whether each of the Defendant Officers reasonably believed that Hale
posed a threat to the safety of the officers or others. See Harris v. Serpas, 745 F.3d
767, 772-73 (5th Cir. 2014); Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th
Cir. 2009). In making this inquiry, the Court is mindful that “the reasonableness of
a particular use of force must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” See Harris, 745 F.3d
at 773 (citation, quotation marks, and brackets omitted). The Court “must account
for the difficult and often split-second decisions that police officers must make in
carrying out their duties.” Lytle v. Bexar Cty., 560 F.3d 404, 411 (5th Cir. 2009).
For the second prong of the qualified immunity analysis, “[t]he relevant,
dispositive inquiry in determining whether a right is clearly established is whether
it would be clear to [the Defendant Officer] that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202. In this respect, the United
States Supreme Court has reiterated that “qualified immunity protects actions in
the hazy border between excessive and acceptable force.” Mullenix v. Luna, 136 S.
Ct. 305, 312 (2015) (citation and quotation marks omitted).
DEFENDANT GARNER (THE SHOOTING)
The videos submitted in conjunction with the pending motions illustrate that
– although Hale did not “jam” his hand into his pocket as the Defendant Officers
contend – he did turn away from the Officers and then put his right hand into his
right pocket as he was turning back,1 despite previously being told not to put his
hands in his pockets. See Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.
2011) (“Although we review evidence in the light most favorable to the nonmoving
party, we assign greater weight, even at the summary judgment stage, to the facts
evidenced from video recordings taken at the scene.”); Buchanan v. Gulfport Police
Dep’t, 530 F. App’x 307, 311 (5th Cir. 2013). Under these circumstances, the Court
is of the opinion that Garner could have reasonably believed that Hale was reaching
for a weapon and posed a threat to the officers’ safety. See, e.g., Ontiveros, 564 F.3d
at 385; see also Brewer v. Texas, No. 3-10-CV-1721-N-BD, 2011 WL 3101789, at *3
(N.D. Tex. June 7, 2011), rep. and rec. adopted, 2011 WL 3047647, at *1 (N.D. Tex.
July 22, 2011) (“Many courts, including the Fifth Circuit, have upheld the use of
deadly force by police officers when suspects refuse to obey commands regarding the
placement of their hands.”). Furthermore, the Court finds that the shooting did not
somehow become unreasonable because another officer also tased Hale at or near
the same time. See Buchanan, 530 F. App’x at 315.
The fact that Hale was ultimately unarmed is irrelevant. See Reese v.
Anderson, 926 F.2d 494, 501 (5th Cir. 1991); see also Buchanan v. Gulfport Police
Dep’t, No. 1:08CV1299LG-RHW, 2012 WL 1906523, at *8 (S.D. Miss. May 25, 2012),
aff’d, 530 F. App’x at 315. Hale’s implication that Garner “should have known” it
was a lighter he was reaching for to light the cigarette he had retrieved is the exact
The [99-7] still shots of one of the videos relied on by Hale also support this.
type of argument requiring 20/20 hindsight and judicial second-guessing, which is
improper. See Harris, 745 F.3d at 773; see also City & Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1777 (2015). His contention that Garner did not believe
he was armed because he did not shoot him when he reached his left hand into his
left pocket to get his cigarettes does not create a genuine issue of material fact. The
Court does not look at Garner’s subjective intent, but only at whether his actions
were objectively reasonable under the circumstances. See Graham v. Connor, 490
U.S. at 397. In doing so, the Court concludes that a reasonable officer could have
exercised restraint when Hale first reached into his pocket, but taken action after
Hale decided to place a hand in his pocket yet again after being told not to do so.
Hale argues that the Defendant Officers failed to first knock and announce
their presence before opening the unlocked door to the mobile home,2 failed to tell
Hale he was under arrest or that there was a warrant for his arrest, and failed to
respond to Hale’s questions about why they were there. However, the Defendant
“[O]fficers’ actions leading up to the [challenged force] are not relevant for the
purposes of an excessive force inquiry in this Circuit.” Harris, 745 F.3d at 772.
Similarly, if Hale is relying on his expert’s affidavit (which he submitted in
Hale did not bring a separate Fourth Amendment claim related to this
purported failure. But assuming arguendo that there was a knock-and-announce
violation, Hale’s extensive arguments in this respect are a red herring. See, e.g.,
Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir. 1996) (recognizing that a
knock-and-announce violation “is conceptually distinct from” a claim of excessive
force); Greathouse v. Couch, 433 F. App’x 370, 373 (6th Cir. 2011) (“Despite
[Plaintiff]’s arguments to the contrary, the knock-and-announce rule violation is
irrelevant to her excessive-force claim.”).
opposition to the City’s Motion only) to overcome qualified immunity, that affidavit
primarily discusses the Defendant Officers’ actions leading up to the shooting,
which is insufficient to overcome summary judgment. See Sheehan, 135 S. Ct. at
1777; Blair v. City of Dallas, 666 F. App’x 337, 341 (5th Cir. 2016). Hale’s expert
acknowledges that “the video shows Hale with a cigarette and a package and did
turn and put a hand in his pocket, but the violation of recognized procedures and
training was the lack of informing Hale he was under arrest, and that they were
serving a warrant.” (Hale Expert Aff. 6, ECF No. 103-15). He then “argues that the
[Defendant O]fficers acted contrary to recognized police policies and procedures, but
that contention is not enough to itself create a material fact issue.” See Blair, 666
F. App’x at 341; see also Watson v. Bryant, 532 F. App’x 453, 458 (5th Cir. 2013)
(“The failure to use ‘proper procedure’ does not prove excessive force.”); Pasco ex rel.
Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009).
The Court’s inquiry could end here related to Garner. See Pasco, 566 F.3d at
572. Nevertheless, turning to the second prong of the qualified immunity analysis,
Hale relies on a non-precedential case stating that a jury “could reasonably
conclude that a prudent officer would have waited to see what impact the taser had
before employing deadly force.” See Hinojosa v. Sheriff of Cook Cty., No. 13-C-9079,
2015 WL 5307514, at *6 (N.D. Ill. Sept. 10, 2015). This single district court case
does not place the constitutionality of Garner’s conduct “‘beyond debate.’” See
Sheehan, 135 S. Ct. at 1774 (citation omitted); Mullenix, 136 S. Ct. at 312;
Strickland v. City of Crenshaw, 114 F. Supp. 3d 400, 417 (N.D. Miss. 2015). Indeed,
the Fifth Circuit has upheld summary judgment in favor of defendant officers when
the officers simultaneously shot the plaintiff where that Court found – as this Court
has – that the officers could have reasonably believed that the plaintiff posed a
threat of serious harm.3 See Buchanan, 530 F. App’x at 315. The Court will grant
summary judgment in Defendant Garner’s favor on the § 1983 claim against him.
DEFENDANT LEA (THE TASING)
Turning to Lea’s conduct, the Court is of the opinion that it was not
objectively unreasonable for Lea to tase Hale after Hale turned away from the
Defendant Officers and then put his right hand into his right pocket as he was
turning back, despite previously being told not to put his hands in his pockets. (See
supra, pp. 6-7); Ontiveros, 564 F.3d at 385. Again, this is so even though the
shooting and tasing were at or near the same time and Hale proved to be unarmed.
(See supra, p.7); Reese, 926 F.2d at 501; Buchanan, 530 F. App’x at 315. As with
Garner, the Court will not engage in judicial second-guessing of Lea’s conduct. (See
supra, pp. 7-8). To the extent Hale contends that Lea did not believe he was armed,
that argument is rejected for the same reason discussed above. (See supra, p.8).
Furthermore, while Hale contends that Lea did not give a “taser taser taser”
warning, even assuming that a warning in those exact words was required, the
Defendant Lea’s conduct and entitlement to qualified immunity is analyzed
separately below, as Fifth Circuit precedent requires. However, the Court notes
that Hale’s arguments in response to both Defendant Officers’ invocation of
qualified immunity are nearly identical, and, thus, this Court’s analysis is also
nearly identical. See, e.g., Byrd v. City of Bossier, 624 F. App’x 899, 905 n.6 (5th
Cir. 2015); see also Poole, 691 F.3d at 628.
failure to follow proper procedure does not prove excessive force. See, e.g., Blair,
666 F. App’x at 341; Watson, 532 F. App’x at 458. The same is true for Hale’s
arguments related to other purported procedural violations. (See supra, pp. 8-9).
Finally, even if Hale’s conduct was objectively unreasonable, he would still be
entitled to qualified immunity. The constitutionality of Lea’s conduct was not
“beyond debate.” (See supra, pp. 9-10); Mullenix, 136 S. Ct. at 312. The Court will
also grant summary judgment in Defendant Lea’s favor on the § 1983 claim against
MUNICIPAL LIABILITY AGAINST THE CITY OF BILOXI (SECTION 1983)
It is well-settled that the City cannot be liable under § 1983 pursuant to a
theory of respondeat superior. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658,
691 (1978). “A municipality is almost never liable for an isolated unconstitutional
act on the part of an employee; it is liable only for acts directly attributable to it
‘through some official action or imprimatur.’” Peterson v. City of Forth Worth, 588
F.3d 838, 847 (5th Cir. 2009) (citation omitted). “To hold a municipality liable
under § 1983 for the misconduct of an employee, a plaintiff must show, in addition
to a constitutional violation, that an official policy promulgated by the
municipality’s policymaker was the moving force behind, or actual cause of, the
constitutional injury.” James v. Harris Cty., 577 F.3d 612, 617 (5th Cir. 2009).
Hale argues that the City’s “unconstitutional policies and customs, combined
with the City’s inadequate training, were the moving force behind the excessive use
of force against” him. (See Hale Mem. In Opp. To City Mot. For Summ. J. 26, ECF
No. 104) (bold omitted) (see also id. at 27). The only policy identified by Hale in
response to discovery requests was the City’s taser policy. (See Hale’s Answers to
City’s First Set of Inter., ECF No. 84-7). Because the Court has found that Lea’s
use of his taser was not unconstitutional, the Court need not address the City’s
taser policy further. See Salazar-Limon v. City of Houston, 826 F.3d 272, 279 (5th
Cir. 2016) (“Because [Plaintiff] has not shown a violation of his constitutional
rights, however, all of his [municipal liability] claims against the City [Defendant]
fail as a matter of law.”); Elizondo v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012)
(“in the absence of a constitutional violation, there can be no municipal liability for
the City”). Similarly, because the Court has found that Garner’s use of his gun was
not unconstitutional, the Court need not address the City’s use of force policy
further. In short, because the Court has determined that there was no excessive
force on the part of either Defendant Officer, the City is entitled to summary
judgment on the § 1983 claim against it. See, e.g., Salazar-Limon, 826 F.3d at 279;
Elizondo, 671 F.3d at 510-11; Blair, 666 F. App’x at 342; see also City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986).
Hale also spends much of his briefing discussing the City’s Policy 4.8 on
Arrest Procedures. Although unclear, it appears that Hale is trying to argue that
the City’s Arrest Procedures led to the use of excessive force, and, as discussed
above, that claim is not cognizable because the Court has found that there was no
excessive force under the circumstances.4 Hale’s arguments regarding the City’s
Arrest Procedures and implementation thereof are without merit and are
insufficient to impose liability on the City. See, e.g., id.
MTCA CLAIMS AGAINST ALL DEFENDANTS
Hale’s claims under § 1983 are the sole basis for federal jurisdiction in this
case. Under 28 U.S.C. § 1367(c)(3), this Court has broad discretion to decline to
exercise supplemental jurisdiction where it has dismissed all claims over which it
had original jurisdiction. The Court, having dismissed Hale’s federal law claims,
declines to exercise supplemental jurisdiction. See, e.g., Strickland, 114 F. Supp. 2d
at 418-19; Smith v. City of Nettleton, No. 1:07CV113MD, 2008 WL 5244441, at *3
(N.D. Miss. Dec. 15, 2008).
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter this result. For the
Hale blatantly misstates that Policy 4.8 “completely omits any reference to
Miss. Code Ann. § 99-3-11 (1972))[,]” pertaining to “Admission to House.” (See Hale
Mem. In Opp. To City Mot. For Summ. J. 17-18, ECF No. 104). The Policy explicitly
states in pertinent part:
It is the policy of the Biloxi Department of Police that any criminal
arrests . . . be made by Sworn Police Officers in accordance with state
statutes; i.e., the Annotated Mississippi Code of 1972, Title 99 Chapter
3 Section 1, Title 99 Chapter 3 Section 3, Title 99 Chapter 3 Section 7,
Title 99 Chapter 3 Section 11, Title 99 Chapter 3 Section 13 and
Title 41 Chapter 29 Section 159).
(Policy 4.8 at 1, ECF No. 103-8) (emphasis added).
reasons discussed herein, the Court is of the opinion that Defendants are entitled to
judgment as a matter of law on the federal claims against them and, thus, will
dismiss those claims with prejudice. However, the Court will decline to exercise
supplemental jurisdiction over the remaining state law claims and will dismiss
those claims without prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that the [78, 86, 91]
Motion for Summary Judgment filed by Defendants are GRANTED with respect to
Plaintiff Hale’s federal claims made pursuant to 42 U.S.C. § 1983. Those claims are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff Hale’s state
law claims are DISMISSED WITHOUT PREJUDICE.
SO ORDERED AND ADJUDGED this the 20th day of July, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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