Carroll v. City of Lucedale, Mississippi et al

Filing 81

MEMORANDUM OPINION AND ORDER granting 74 Motion for Summary Judgment. Plaintiff's claims against George County, Mississippi are dismissed with prejudice. Signed by District Judge Louis Guirola, Jr. on 5/20/2020 (wld)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ESTATE OF JESSICA DANIELLE
BROWN CARROLL
v.

PLAINTIFF
CAUSE NO. 1:17-cv-230-LG-RHW

CITY OF LUCEDALE, MISSISSIPPI,
ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING GEORGE COUNTY,
MISSISSIPPI’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant George County, Mississippi’s (“George
County” or “the County”) [74] Motion for Summary Judgment. These issues have
been fully briefed by the parties. After due consideration, the Court grants
summary judgment in favor of George County, in large part because Plaintiff has
not created a genuine issue of material fact that her constitutional claims, as
alleged and evidenced, were the result of county policies. Plaintiff’s state law tort
actions are barred by statutory sovereign immunity.
BACKGROUND
Plaintiff appeared in the County Court of George County, Mississippi due to
nonpayment of fines relating to her failure to maintain automobile liability
insurance.1 Although Plaintiff informed the county court that she was unable to
pay the fine imposed, the county judge sentenced her to 59 days in jail. Plaintiff
was thereafter confined to George County Regional Correctional Facility. (Pl.’s Am.

1 This lawsuit was originally filed by Jessica Danielle Brown Carroll. After her death, the Court
substituted the Estate of Jessica Danielle Brown as Plaintiff.

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Compl. at ¶ 8, ECF No. 4). While incarcerated, Plaintiff alleges that she was raped
and humiliated by a corrections officer, Defendant Warren Avery. (Id. at ¶¶ 11-16).
All evidence in the record indicates that George County had no knowledge of prior
misconduct by Avery. (See Incident Report, ECF No. 74-7; Dep. Pamela Davis at
12:21-14:4, ECF No. 74-2). Plaintiff was incarcerated again in April 2017. (Id. at
¶¶ 17-21). During her incarceration she was allegedly “pepper sprayed” by an
Officer Prentiss. (Id.). Plaintiff alleges that this use of force was excessive and
unnecessary and injured her right eye. (Id.).
Plaintiff brought the instant lawsuit, alleging violations of her constitutional
rights under 42 U.S.C. § 1983 and various tort actions under state law. (Id. at ¶¶
30-66). Specifically, Plaintiff alleges violations of her rights to due process and
equal protection of the laws, her right to be free from cruel and unusual
punishment, and her right to counsel. (See generally Pl.’s Am. Compl. at ¶¶ 30-59,
ECF No. 4). Plaintiff also brings state law tort actions, including negligence, gross
negligence, assault, battery, false imprisonment, and negligent and intentional
emotional distress, among others. (Id. at ¶¶ 60-62).2
DISCUSSION
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

2 Plaintiff has conceded her claims for First Amendment retaliation, and those for negligent hiring,
supervision, and retention. (Pl.’s Resp. Def.’s Mot. Summ. J. at 2, ECF No. 76).

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “When the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). “[T]he nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
“A genuine dispute of material fact means that ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Royal v. CCC & R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the nonmovant
“‘is merely colorable, or is not significantly probative,’ summary judgment is
appropriate.” Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 249). In deciding
whether summary judgment is appropriate, the Court views the evidence and
inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int’l
Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
II.

Federal Claims
42 U.S.C. § 1983 provides a cause of action for the violation of an individual’s

rights secured by the Constitution or laws of the United States by a person acting
under color of state law. “To state a claim under 42 U.S.C. § 1983, a plaintiff must
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first show a violation of the Constitution or of federal law, and then show that the
violation was committed by someone acting under color of state law.” Atteberry v.
Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005) (citing West v. Atkins, 487
U.S. 42, 48-50 (1988)).
Further, Plaintiff’s numerous section 1983 claims against George County
must directly attribute the unconstitutional conduct to the municipality. In other
words, the County cannot be held liable for the acts of its employees under a theory
of respondeat superior. Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir.
1995) (citing Bd. of Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997)).
This attribution can be made in the following way. “Under the decisions of the
Supreme Court and this court, municipal liability under section 1983 requires proof
of three elements: a policymaker; an official policy; and a violation of constitutional
rights whose ‘moving force’ is the policy or custom.” Piotrowski, 237 F.3d at 578
(citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). Therefore, Plaintiff
must show not only an underlying constitutional violation, but also that a county
policy existed and was the “moving force” behind the alleged violation.
1.

Equal Protection and Due Process Claims

Plaintiff’s Amended Complaint sets forth two causes of action under the Due
Process clause of the Fourteenth Amendment. (Pl.’s Am. Compl. at ¶¶ 34-38; 55-59,
ECF No. 4). Specifically, Plaintiff alleges that George County’s “policy and practice
of creating a debtor’s prison and incarcerating Brown violates [her] rights secured
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under the 14th Amendment” and that George County imprisoned her “for alleged
unpaid fines without a hearing and without considering alternative punishments.”
(Pl.’s Am. Compl. at ¶¶ 56, 58, ECF No. 4). Plaintiff also claims a violation of the
Equal Protection clause.
The Court is mindful, however, that before George County can be held
responsible for any due process or equal protection violation, an official policy must
have existed and moved the alleged unconstitutional conduct. The Fifth Circuit has
defined “policy” to include “[a] persistent, widespread practice of city officials or
employees, which, although not authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a custom that fairly represents
municipal policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
“Actual or constructive knowledge of such custom must be attributable to the
governing body of the municipality or to an official to whom that body had delegated
policy-making authority.” Id.
Federal district courts in this Circuit have expounded the sort of policy that
will give rise to municipal liability in the fine incarceration context. See Doe v.
Angelina Cty., Tex., 733 F. Supp. 245, 257 (E.D. Tex. 1990) (finding a policy where
there was undisputed evidence that the sheriff had acquiesced to county officials’
practice of automatically converting a fine sentence into a jail sentence without a
hearing); De Luna v. Hidalgo Cty., Tex., 853 F.Supp.2d 623, 641 (S.D. Tex. 2012)
(finding a policy where the sheriff permitted fine debtors to be arrested and jailed
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before arraignment, where their jail time was calculated based on their fine debt,
and no questions were asked about their ability to pay); Cain v. City of New
Orleans, 281 F.Supp.3d 624, 647-48 (E.D. La. 2017) (finding a policy where multiple
plaintiffs presented evidence “that the Judges have a practice of not inquiring into
plaintiffs’ ability to pay court debts when plaintiffs are essentially held in civil
contempt and imprisoned for nonpayment”).
Plaintiff has offered nothing of this nature. Instead, she cites the deposition
of Warden Fairley, who answered in the affirmative when asked whether it is “a
common practice in the county to jail people for failing to pay fines.” (Dep. Bobby
Fairley at 43:15-25, ECF No. 76-1). However, even if this were an unconstitutional
practice, Plaintiff has not successfully attributed it to the County. The Fifth Circuit
has stated that a municipal judge’s actions in wrongfully incarcerating an indigent
are taken in a judicial capacity and do not amount to official policy. Whisenant v.
City of Haltom City, 106 F. App’x 915, 917 (5th Cir. 2004) (“The City cannot be
liable under § 1983 for having a ‘policy’ of wrongfully incarcerating indigent
defendants because the relevant decisions were made by a municipal judge acting in
his judicial capacity.”).
Likewise, Plaintiff’s alleged procedural due process violations were caused by
the county judge. For instance, Plaintiff alleges that she “was not provided an
attorney prior to being incarcerated.” (Pl.’s Amend. Compl. at ¶ 59, ECF No. 4).
The county judge’s acts or omissions with respect to appointment of counsel and
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Plaintiff’s hearing were taken in a judicial, rather than administrative, capacity.
See DeLeon v. City of Haltom City, 106 F. App’x 909, 910 (5th Cir. 2004) (“Former
municipal judge Byno, not the City, made the decisions not to provide DeLeon with
an indigency hearing, not to inform her of her right to counsel, and not to appoint
counsel for her.” ). Therefore, assuming arguendo that Plaintiff’s incarceration and
the antecedent procedure violated her constitutional rights, she has still not shown
that George County may be held liable for these violations. Without a genuine
factual issue as to an essential element of her Monell claim against the County,
Plaintiff’s substantive due process, procedural due process, and equal protection
claims cannot stand. Accordingly, George County is entitled to summary judgment
on these claims.
2.

Eighth Amendment Claims

Plaintiff alleges that she “was subjected to cruel and unusual punishment . . .
while incarcerated by Defendants.” (Pl.’s Am. Compl. at ¶ 40, ECF No. 4). Plaintiff
also couches her prison-related allegations in the due process language of the
Fourteenth Amendment (Id. at ¶¶ 45-46), but the parties brief these issues in terms
of the Eighth Amendment. (Def.’s Mem. Mot. Summ. J. at 7-10, ECF No. 75; Pl.’s
Resp. Opp. Def.’s Mot. Summ. J. at 15-19, ECF No. 76). The Court will consider
each of Plaintiff’s claims, aided by the additional guidance of Monell.
Plaintiff has submitted some evidence that she was not “convicted” of any
crime. (See Mittimus Order, ECF No. 76-2.) The Court does, however, note that she
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was “sentenced.” The Court need not decide whether Plaintiff was a convicted
prisoner, as her rights are little different between the two amendments. “That
pretrial detainees may have more protections or rights, in general . . . does not
mean that they are entitled to greater protection of rights shared in common with
convicted inmates.” Hare, 74 F.3d at 649. Irrespective of that issue, however, the
Court finds that Plaintiff’s claims against the County should be dismissed because
she has not created a genuine issue of material fact as to the existence of a policy.
A.

Term of Imprisonment

Plaintiff argues that her 59-day sentence for failing to maintain automobile
liability insurance is not authorized by statute and is “itself a form of cruel and
unusual punishment prohibited by the Eighth Amendment.” (Pl.’s Resp. Def.’s Mot.
Summ. J. at 15, ECF No. 76). She argues that the County illegally sentenced her to
this term according to its own customs and practices. (Id.) But Plaintiff has again
failed to offer summary judgment evidence of a county policy with respect to
sentencing beyond or despite statutory limitations. Insofar as Plaintiff was
sentenced by a county judge acting in his judicial capacity, such decisions do not
represent official county policy. See Whisenant, 106 F. App’x at 917.
B.

Excessive Force

Plaintiff’s next cognizable claim under the Eighth or Fourteenth Amendment
is her claim for “excessive force.” (See Pl. Am. Compl. ¶¶ 42-54, ECF No. 4).
Defendant’s argument supposes that Plaintiff’s excessive force claim arises out of
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her pepper-spray allegations (Def.’s Mem. Supp. Mot. Summ. J. at 7-8, ECF No. 75),
but Plaintiff’s discussion is centered on her sexual assault by Avery (Pl.’s Resp.
Def.’s Mot. Summ. J. at 15, ECF No. 76).
Plaintiff has not produced any evidence that George County has a policy
affirming the use of pepper spray or a policy affirming sexual assault on inmates.3
(The County, rather, has a policy against the use of chemical agents to punish
inmates.) (GCRCF Policy, ECF No. 74-6). In the absence of a county policy that
could have served as the moving force behind the alleged sexual assault and use of
pepper spray, George County is entitled to summary judgment on Plaintiff’s claims
of excessive force.
C.

Failure to Protect

Plaintiff’s final claim also regards her allegations of sexual assault by a
corrections officer, Defendant Warren Avery. (Pl.’s Am. Compl. at ¶¶ 49-54, ECF
No. 4). Defendant argues, inter alia, that “[n]ot only has Plaintiff failed to
demonstrate she suffered a constitutional violation, she has failed to produce
competent record evidence that any violation was prohibited by a policy, procedure
or practice.” (Def.’s Mem. Supp. Mot. Summ. J. at 10, ECF No. 75). This Court
agrees.
Plaintiff’s claim is similar to that considered by the Fifth Circuit in Scott v.

3 Defendant also argues that Officer Prentiss’s use of pepper-spray was de minimis, which
punishments are “necessarily exclude[d] from constitutional recognition,” Hudson, 503 U.S. 1, 9-10,
and that Plaintiff has not shown an injury. The Court does not address these arguments because it
has decided on other grounds.

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Moore, 114 F.3d 51 (5th Cir. 1997). There, a pretrial detainee alleged that she had
been sexually assaulted by a jailer. Id. at 52. The Fifth Circuit held that the City
could not be liable without demonstration of “a municipal custom, rule, or policy
adopted or maintained with objective deliberate indifference to the detainee’s
constitutional rights.” Id. at 54. A fortiori, the same or a stricter standard applies
to post-conviction allegations. Wade v. Montgomery Cty., Tex., 2019 WL 5653878, at
*5 (S.D. Tex. 2019); see also Hare, 74 F.3d at 649. In Scott, the plaintiff argued that
the City had a policy of “inadequate staffing” which resulted in the assault. Scott,
114 F.3d at 54. But there was no evidence the City knew of the possibility of sexual
assault by the jailer, as it performed background investigations on new hires, and
the accused jailer had no such record in previous similar positions. Id. Further, the
plaintiff’s evidence that the jailer had received other sexual acts from inmates did
not establish “that the city knew or should have known of the risk attendant to its
staffing policy,” as it had also separated male officers from interacting with female
detainees. Id.
Plaintiff advances substantially less in the way of evidence that George
County knew of a substantial risk of harm in Officer Avery or enacted any policy
with objective deliberate indifference to her constitutional rights. Plaintiff argues
that the rape was “reasonably foreseeable” because the County is governed by the
Prison Rape Elimination Act (PREA). (Pl.’s Resp. Def.’s Mot. Summ. J. at 19, ECF
No. 76). Plaintiff does not, however, argue that the County violated the PREA or
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engaged in any other policy or custom—something akin to inadequate staffing—
which moved the alleged violation. (Id.) The County, in contrast, offered
uncontroverted summary judgment evidence that it complies with the PREA. (See
Dep. Pamela Davis at 15:3-16:20, ECF No. 74-2; Dep. Bobby Fairley, 37:21-38:25).
Again, Plaintiff has not created a genuine issue of material fact that a county policy
existed and moved its alleged failure to protect her from sexual assault.
Further, the County urges that it had no forewarning of Avery’s sexual
assault until Plaintiff informed them. (Def.’s Mem. Supp. Mot. Summ. J. at 9, ECF
No. 75). The County cites the initial report and deposition of Lieutenant Davis,
both of which suggest that she was not aware of prior assaults by Avery. (See
Incident Report, ECF No. 74-7; Dep. Pamela Davis, ECF No. 74-2). This evidence
also remains undisputed by Plaintiff. While her Complaint alleges prior incidents
involving Avery and that “George County was . . . suspicious of Avery’s actions,” she
does not substantiate these allegations with any summary judgment evidence.
(Pl.’s Am. Compl. at ¶¶ 12-15, ECF No. 4). Therefore, there is no genuine issue of
material fact as to whether the County knew of facts which amount to “deliberate
indifference,” even by an objective standard.4 As such, George County is entitled to
summary judgment on Plaintiff’s failure to protect claim.

4 Plaintiff also argues that George County should be held responsible for the sexual assault because
it would not have occurred “but for” her incarceration. (See Pl.’s Resp. Def.’s Mot. Summ. J. at 17,
ECF No. 76). While such a causation showing is necessary, it must be connected with a policy in a
way that is “more than a mere ‘but for’ coupling between cause and effect.” Fraire v. City of
Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992).

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III.

State Law Claims
Plaintiff alleges tort causes of action, including “negligence, gross negligence,

reckless disregard, . . . assault, battery, unlawful detention / imprisonment, breach
of duty, outrage, excessive use of force, unlawful punishment, negligent and
intentional infliction of emotional distress, and abuse of process.” (Pl.’s Am. Compl.
at ¶ 62, ECF No. 4). George County argues that these tort claims are barred by the
sovereign immunity provisions of the Mississippi Tort Claims Act (MTCA). (Def.’s
Mem. Supp. Mot. Summ. J. at 11-12, ECF No. 75).
The MTCA provides, in pertinent part:
(1) A governmental entity and its employees acting within the course
and scope of their employment or duties shall not be liable for any
claim:
(m) Of any claimant who at the time the claim arises is an inmate of
any detention center, jail, workhouse, penal farm, penitentiary or other
such institution, regardless of whether such claimant is or is not an
inmate of any detention center, jail, workhouse, penal farm,
penitentiary or other such institution when the claim is filed.
Miss. Code Ann. 11-46-9(1)(m) (2020).
The Mississippi Supreme Court has defined “inmate” to mean “a person
confined to a prison, penitentiary or the like.” Wallace v. Town of Raleigh, 815
So.2d 1203, 1207-08 (Miss. 2002). The Mississippi Supreme Court includes nonconvicted pretrial detainees within the exception. Liggans v. Coahoma Co. Sheriff’s
Dep’t, 823 So. 2d 1152 (Miss. 2002). Hence, the MTCA immunizes George County
from any claims which arose while Plaintiff was an inmate at the George County
Regional Correctional Facility.
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To overcome the immunity, Plaintiff argues that she was unlawfully
incarcerated and therefore “not an inmate subject to any lawful court order.” (Resp.
Opp. Def.’s Mot. Summ. J. at 20-21, ECF No. 76). This distinction, too, has been
rejected. The Fifth Circuit has held: “the plain language of § 11-46-9(1)(m) does not
contemplate any distinction between inmates being detained pursuant to a lawful
court order and unlawfully-held detainees, and the Mississippi courts have declined
to read such a distinction into the statute.” Fleming v. Tunica Cty. Miss., 497 F.
App’x 381, 389-90 (5th Cir. 2012) (per curiam) (citing Brooks v. Pennington, 995
So.2d 733, 737 (Miss. Ct. App. 2007) (“In granting immunity from claims brought by
an inmate, Section 11-46-9(1)(m) does not distinguish between those lawfully and
unlawfully within the custody of the state.”).
The Fifth Circuit’s controlling interpretation is supported by other
Mississippi case law, see, e.g., Tillman v. Miss. Dept. of Corrections, 95 So.3d 716,
719 (Miss. Ct. App. 2012), as well as later decisions of this Court. Montgomery v.
City of Lumberton, 2014 WL 4545922, at *2 (S.D. Miss. 2014); Longino v. Hinds
Cty., Miss. ex rel. Bd. of Sup’rs, 2014 WL 4545943, at *3 (S.D. Miss. 2014).
Plaintiff’s argument is therefore without merit. George County is entitled to
summary judgment on any tort action which arose at the time Plaintiff was
incarcerated.5

5 The County invokes two other statutes of sovereign immunity—the police function exception and
discretionary function exception. (Def.’s Mem. Supp. Mot. Summ. J. at 12, ECF No. 75). However,
because the actions arguably excepted by these provisions overlap with those that are subject to the
inmate exception, and because Plaintiff conceded her claims for negligent hiring, supervision, and

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CONCLUSION
In summary, Plaintiff has conflated facts that may support claims against
other parties, but has failed to demonstrate a genuine factual issue as to whether
the alleged constitutional violations are the product of policies, procedures, or
practices attributable to George County, Mississippi. Finally, Plaintiff’s state law
claims against the County which arose at the time of her incarceration are barred
by statute.
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant’s
[74] Motion for Summary Judgment is GRANTED. Plaintiff’s claims against
George County, Mississippi, are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED AND ADJUDGED, that is no just reason for
delaying entry of final judgment of dismissal with prejudice as to all claims filed by
Plaintiff against George County, Mississippi and that this Order is hereby certified
as a PARTIAL FINAL JUDGMENT pursuant to Fed. R. Civ. P. 54(b) as to all
claims that have been made against Defendant George County, Mississippi and
dismissing said Defendant.
SO ORDERED AND ADJUDGED this the 20th day of May, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

retention (Pl.’s Resp. Def.’s Mot. Summ. J. at 2, ECF. No. 76), the Court need not pass judgment on
the merits of these exceptions.

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