Peterson v. Pearl River County, Mississippi et al

Filing 38

MEMORANDUM OPINION AND ORDER granting Defendant David Allison's Motion 35 for Summary Judgment. Signed by District Judge Halil S. Ozerden on 8/2/2022 (BTC)

Case 1:20-cv-00216-HSO-BWR Document 38 Filed 08/02/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
WALLACE DWAYNE PETERSON, §
JR.
§
§
v.
§
§
PEARL RIVER COUNTY,
§
MISSISSIPPI; DAVID ALLISON;
§
and JOHN AND JANE DOES 1-10 §

PLAINTIFF
Civil No. 1:20-cv-216-HSO-BWR

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT DAVID
ALLISON’S MOTION [35] FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant David Allison’s Motion [35] for
Summary Judgment. Plaintiff Wallace Dwayne Peterson, Jr. has not responded and
the time for doing so has long passed. After due consideration of the record, related
pleadings, and relevant legal authority, the Court finds that Defendant David
Allison’s Motion [35] for Summary Judgment should be granted, and that Plaintiff
Wallace Dwayne Peterson, Jr.’s claims against Defendant David Allison should be
dismissed with prejudice.
I. BACKGROUND
A.

Factual background
On August 23, 2019, officers with the Pearl River County Sheriff’s

Department (“PRCSD”) executed a search warrant at Plaintiff Wallace Dwayne
Peterson, Jr.’s (“Plaintiff” or “Peterson”) residence. Ex. 1 [13-1]; Ex. 4 [35-4] at 14.
Peterson testified that he was in his home laying on the couch when three or four
PRCSD officers kicked his door in, shouted “sheriff’s department,” and told him to

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stand up. Ex. 4 [35-4] at 13-14, 20. Peterson claims that a “[b]ig, bulky guy” then
threw him to the ground “put his knee in my back and then hit” him in the face with
“an assault rifle or shotgun.” Id. at 17. Peterson was unable to further identify the
officer who struck him, but he did explain that it was the same officer who told him
to stand and put his hands up. Id. at 17, 21; see also Ex. 1 [35-1] at 15, 34-35
(Captain Shane Edgar testifying that he was the first officer to enter Peterson’s
residence and that he took Peterson to the ground). Peterson further testified that
this was the only time he was struck. Ex. 4 [35-4] at 19.
Peterson was then handcuffed and taken outside of the residence. Id. at 14.
Peterson claims that he was forced to stand in only his underwear for an hour while
he was bleeding from the mouth before he was placed in a law enforcement vehicle.
Id. at 14, 35. Sometime during the execution of the search warrant, law
enforcement brought Peterson back into his residence to open a safe. Id. at 47-48.
Peterson was transported to the jail after what he estimated was three hours in the
law enforcement vehicle. Id. at 42.
With respect to Defendant David Allison (“Sheriff Allison”), the elected
Sheriff of Pearl River County, Mississippi (“the County”), Peterson testified that the
first time he saw Sheriff Allison was when he was taken outside of his residence
and that he was unsure whether Sheriff Allison had previously been inside his
residence. Id. at 31. Peterson avers that Sheriff Allison saw him bleeding the entire
time he was outside and never offered any medical assistance. Id. at 35.

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B.

Procedural history
On July 1, 2020, Peterson filed suit against the County, Sheriff Allison, and

John and Jane Does 1-10, for claims arising from the August 23, 2019, incident.
Compl. [1]. The Complaint advances six causes of action under 42 U.S.C. § 1983: (1)
excessive force (Count One); (2) unreasonable search and seizure (Count Two); (3)
unreasonable seizure or “false arrest/imprisonment” (Count Three); (4) supervisory
and bystander liability as to Sheriff Allison only (Count Four); (5) a claim against
the County pursuant to Monell v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978) (Count Five); and (6) a claim against the County for
reckless disregard pursuant to the Mississippi Tort Claims Act, Miss. Code Ann.
§ 11–46–1 et seq. (Count Six). Id. at 6-17. Counts One through Three are asserted
against collective “Defendant Officers,” whom Peterson defines as Sheriff Allison
and other unidentified “officers, employees, agents, or servants” of the County. Id.
at 2. 1
Sheriff Allison initially filed a Motion [7] for Judgment on the Pleadings,
asserting qualified immunity and seeking dismissal of Peterson’s § 1983 claims
against him. Mot. [7] at 1, 12. The Court entered an Order [14] granting in part and
denying in part Sheriff Allison’s Motion [7]. Order [14]. The Court dismissed
Peterson’s claims against Sheriff Allison in Counts One, Two, and Three, and his
Counts Five and Six are not relevant to the present Motion as they are advanced against the
County only. Count Five alleges that the County “established customs, policies, practices, decisions,
and procedures amounting to deliberate indifference to . . . the deprivation of . . . Peterson’s
constitutional rights and the resulting injuries and damages to [him].” Compl. [1] at 12 (citing
Monell, 436 U.S. at 658). Count Six alleges that the acts of “Defendant Officers” are imputed to the
County through respondeat superior and constituted “reckless disregard of the health, safety, and
well-being of” Peterson, entitling him to recovery under the Mississippi Tort Claims Act. Id. at 17.
1

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supervisory liability claim in Count Four, but permitted his bystander liability
claim in Count Four to proceed. Id. at 18.
C.

Allison’s Motion [35] for Summary Judgment
Sheriff Allison has filed the present Motion [35] for Summary Judgment

seeking dismissal of the sole remaining claim against him, Peterson’s bystander
liability claim. Mot. [35]. Sheriff Allison argues that this claim should be dismissed
because the Complaint [1] fails to adequately plead an underlying excessive force
claim. Mem. [36] at 6-10. Alternatively, Sheriff Allison asserts that Peterson’s
bystander liability claim fails because he was not present when the alleged
constitutional violation occurred, id. at 12-15, and his absence demonstrates that he
lacked knowledge of any excessive force PRCSD officers may have used and did not
have a reasonable opportunity to prevent any harm Peterson suffered, id. at 15.
Peterson has not responded to Sheriff Allison’s Motion [35] and the time for
doing so has long passed. L.U. Civ. R. 7(b)(4). Because Peterson has not responded,
the Court considers the Motion [35] on its merits, without the benefit of a Response.
See, e.g., Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995).
II. DISCUSSION
A.

Summary judgment standard
Summary judgment is appropriate “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). If the movant carries this burden, “the
nonmovant must go beyond the pleadings and designate specific facts showing that

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there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). In order to rebut a properly supported motion for summary
judgment, the opposing party must show, with “significant probative evidence,” that
there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232
F.3d 473, 477 (5th Cir. 2000). “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)
(quotation omitted). Summary judgment is appropriate if the evidence is merely
colorable or is not significantly probative. Cutting Underwater Techs. USA, Inc. v.
ENI U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In deciding whether summary
judgment is appropriate, the Court views the facts and inferences in the light most
favorable to the nonmoving party. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th
Cir. 2010).
B.

Bystander liability standard
The United States Court of Appeals for the Fifth Circuit has held that “an

officer who is present at the scene and does not take reasonable measures to protect
a suspect from another officer’s use of excessive force may be liable under section
1983.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (quoting Hale v.
Townley, 45 F.3d 914, 919 (5th Cir. 1995)). Bystander liability under § 1983 may
attach where 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)

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chooses not to act.” Id. (quotation omitted). 2
However, bystander liability “will not attach where an officer is not present
at the scene of the constitutional violation,” id. (citation omitted), and an officer’s
“mere presence in the vicinity” of a constitutional violation is insufficient to
establish liability, Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 343 (5th
Cir. 2020). The Fifth Circuit does “consider whether an officer ‘acquiesce[d] in’ the
alleged constitutional violation.” Whitley, 726 F.3d at 647 (alteration in original)
(quotation omitted).
C.

Analysis
Peterson’s excessive force claims arise from “Defendant Officers” purportedly

striking him in the face and slamming him to the ground on August 23, 2019.
Compl. [1] at 6-7. Even assuming Peterson can sustain an excessive force claim
against one of the other Defendants, the bystander liability claim against Sheriff
Allison fails because the uncontroverted summary judgment evidence establishes
that Sheriff Allison was not present when the alleged constitutional violation
occurred. 3
In support of his Motion [35], Sheriff Allison has submitted the deposition
testimony of the PRCSD officers involved in the execution of the search warrant on
Peterson’s residence. See Exs. 1-7 [35]. Captain Shane Edgar testified that he was

Bystander liability will only arise “where the plaintiff can allege and prove ‘another officer’s use of
excessive force.’” Kitchen v. Dallas Cnty., 759 F.3d 468, 481 (5th Cir. 2014) (quoting Hale, 45 F.3d at
919), abrogated on other grounds, Kingsley v. Henrickson, 135 S. Ct. 2466, 2472-73 (2015).
3 The Court has previously dismissed Peterson’s excessive force claim against Sheriff Allison. See
Order [14] at 11.
2

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the first person in the law enforcement “stack” to enter Peterson’s residence and
that he announced “sheriff’s department” upon his entry. Ex. 1 [35-1] at 17, 20.
Captain Edgar claims that he quickly took Peterson to the ground because he
attempted to utilize a weapon. Id. at 23. 4 Once Peterson was on the ground, Captain
Edgar handcuffed him and was responsible for escorting him outside, where
Captain Edgar saw Sheriff Allison for the first time. Id. at 24, 55.
Officers Shane Tucker and Tyler Tate testified that they were either the
second or third law enforcement officers to enter Peterson’s residence. Ex. 5 [35-5]
at 15; Ex. 3 [35-3] at 14. Officer Tucker testified that he observed Captain Edgar
take Peterson to the ground within two or three seconds of their entry, and at that
point he continued further into the house to search for any other individuals who
might be present. Ex. 5 [35-5] at 16. Officer Tucker testified that it took, at most,
ten seconds to “clear” Peterson’s residence and that Sheriff Allison was not part of
the group that initially entered the residence. Id. at 46, 48-49. Officer Tucker
explained that the first time he saw Sheriff Allison was outside of the residence. Id.
at 48.
Officer Tate testified that he entered the residence and saw Captain Edgar
head toward Peterson, but did not see any of the interaction between the two
because he turned to the left to search for other individuals in the house. Ex. 3 [353] at 19. Officer Tate finished “clearing” the house approximately thirty seconds

Peterson disputes this fact but its resolution would not alter the result here because the Court
assumes for purposes of this Motion [35] that Peterson can sustain an excessive force claim. See
Donahue v. Makar Installations, Inc., 33 F.4th 245, 249 (5th Cir. 2022) (recognizing that “[a] fact is
material if it might affect the outcome of the suit”) (quotation omitted).

4

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after he had entered, id. at 35, and he did not recall seeing Sheriff Allison inside the
residence at any point on August 23, 2019, id. at 38.
Major Robert Williams testified that he was the fourth person to enter the
house. Ex. 2 [35-2] at 9. It took him fifteen seconds to park his car and get to the
door and, when he entered, Captain Edgar “had already taken [Peterson] to the
ground.” Id. at 10, 15. Major Williams confirmed that Sheriff Allison was not in
front of him when the law enforcement group entered the residence and that he had
still not entered the residence when Major Williams returned from searching the
right side of the residence. Id. at 36. Major Williams testified that the first time he
saw Sheriff Allison was outside, roughly twenty to thirty seconds after law
enforcement entered the house. Id. at 42.
Officer Daniel Quave testified that there were at least three officers who
entered the house ahead of him and that he followed Major Williams inside. Ex. 6
[35-6] at 9. Officer Quave explained that he did not see Captain Edgar and
Peterson’s interaction because there were several “bigger, taller people in front of
me.” Id. at 10. He turned right upon entering the house and proceeded to search for
fifteen to twenty seconds. Id. at 25-26. Officer Quave also confirmed that Sheriff
Allison was not in front of him as he entered the residence. Id. at 24.
Sheriff Allison has also offered his own deposition testimony in support of his
Motion [35]. He testified that he was in the last vehicle to arrive at Peterson’s
residence and that it took him approximately thirty or forty seconds to park and
enter the house. Ex. 7 [35-7] at 17. He confirmed that he saw Captain Edgar enter

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the residence, but by the time he reached the house the officers had already fully
entered. Id. at 16-17. Sheriff Allison testified that when he finally entered the
home, Peterson was already on the ground in handcuffs with no one on top of him.
Id. at 11-12. Three or four minutes after Sheriff Allison entered the residence,
Peterson was escorted outside. Id. at 18-19.
Peterson has not responded to the Motion [35] but the timeline of events he
offered in his sworn deposition testimony does not contradict the one offered by the
officers. Peterson testified that he was laying on his couch when three or four
officers kicked in his door. Ex. 4 [35-4] at 14, 16. One officer announced that they
were the “sheriff’s department” and told Peterson to stand up and raise his hands.
Id. at 17, 20-21. Peterson testified that he was then thrown to the ground and hit in
the face with either an assault rifle or a shotgun by the same officer who ordered
him to stand. 5 Id. at 17, 21. Peterson was then handcuffed and taken outside. Id. at
14, 19-20. He estimated that a “couple of minutes” elapsed from the officers’ entry
until he was moved outside. Id. at 16.
The foregoing evidence establishes that Sheriff Allison was not present when
the alleged constitutional violation occurred. The uncontroverted summary
judgement record reveals that: (1) at least five law enforcement officers entered
Peterson’s residence before Sheriff Allison entered; (2) Peterson was taken to the
ground by Captain Edgar; (3) Peterson was only allegedly hit by one officer; and (4)

Peterson was only able to identify his assailant as a “[b]ig, bulky guy” that “looked like he was on
steroids.” Ex. 4 [35-4] at 17. Peterson confirmed that the officer who hit him was not Sheriff Allison
because he knew Sheriff Allison from previous interactions and testified that the first time he saw
Sheriff Allison was after he was escorted outside. Id. at 29, 31.
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the alleged strike took place before Peterson was handcuffed. Ex. 1 [35-1] at 22-24;
Ex. 2 [35-2] at 9-10; Ex. 3 [35-3] at 19; Ex. 4 [35-4] at 16-17, 19-21; Ex. 5 [35-5] at
15; Ex. 6 [35-6] at 10. Sheriff Allison’s uncontroverted testimony is that Peterson
was already handcuffed and on the ground when he entered the house and thus, he
could not have seen any officer strike Peterson in the face before he was handcuffed.
Ex. 7 [35-7] at 11. Moreover, Sheriff Allison testified that he did not see any officer
strike Peterson in the face after he entered the residence. Id. at 18. Peterson’s
testimony does not create a genuine dispute of material fact because he testified
that the first time he saw Sheriff Allison was after he was escorted outside. Ex. 4
[35-4] at 31.
Because the competent summary judgment evidence demonstrates that
Sheriff Allison was “not present at the scene of the constitutional violation,” and
thus had no opportunity to intervene to prevent the use of excessive force, the Court
finds that he cannot be liable as a bystander under 42 U.S.C. § 1983. Whitley, 726
F.3d at 646; see also McDonald v. McClelland, 779 F. App’x 222, 227 (5th Cir. 2019)
(holding that police chief could not be liable as a bystander when he was not present
when an officer allegedly used excessive force while executing a warrant). Sheriff
Allison’s Motion [35] for Summary Judgment should be granted.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
David Allison’s Motion [35] for Summary Judgment is GRANTED.
IT IS, FURTHER ORDERED AND ADJUDGED that, Plaintiff Wallace

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Dwayne Peterson, Jr.’s bystander liability claim under 42 U.S.C. § 1983 against
Defendant David Allison is DISMISSED WITH PREJUDICE, and Defendant
David Allison is DISMISSED from this lawsuit. Plaintiff Wallace Dwayne
Peterson, Jr.’s claims against Defendants Pearl River County, Mississippi, and John
and Jane Does 1-10 will proceed.
SO ORDERED AND ADJUDGED, this the 2nd day of August, 2022.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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