Hudson v. Jones County et al

Filing 71

MEMORANDUM OPINION AND ORDER denying 64 Motion for Summary Judgment; granting 66 Motion for Summary Judgment. A separate Judgment shall be entered herein. Signed by District Judge Keith Starrett on 10/3/11 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
ANTHONY J. HUDSON
VERSUS

PLAINTIFF
CIVIL ACTION NO. 2:10cv147KS-MTP

JONES COUNTY

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion for Summary Judgment [#66] filed on
behalf of Defendant Jones County and Wendell Bart Gavin in his Official Capacity as
Circuit Clerk of Jones County, Mississippi and on a Cross-Motion for Summary
Judgment [#64] filed on behalf of the Plaintiff, Anthony J. Hudson. The court having
considered the motions, the responses, the briefs, the authorities cited, and the being
otherwise fully advised in the premises finds that the defendants’ motion is well taken
and should be granted and that the plaintiff’s motion is not well taken and should be
denied. The court specifically finds as follows, to wit:

FACTUAL BACKGROUND
Hudson was a candidate for Mayor of the City of Laurel in the June 2, 2009
General Election. In that election, Melvin Mack received One Thousand Two Hundred
Ninety-Eight (1,298) votes and Hudson received One Hundred Fourteen (114) votes.
Subsequently, Hudson reviewed the voter boxes and, according to him, discovered
evidence of fraud.
On June 10, 2009, Hudson filed an election contest in the Circuit Court of Jones

County, Mississippi contesting the general election for mayor of the City of Laurel. In
his contest, Hudson pointed out what he contends are multiple instances of voter fraud.
Prior to obtaining service of process on the defendants, Hudson filed a “Motion to Set
Hearing” requesting the Court move his contest forward. In response to Hudson’s
Motion to Set Hearing, on August 4, 2010, the Circuit Court issued a Notice of Hearing
stating that Judge Billy Bridges would hear any pending motions on August 20, 2009 at
1:00 p.m.
On August 20, 2009, Hudson appeared at the previously noted hearing along
with his friend Marian Allen, who at that time was contesting an election for City of
Laurel Alderman. David Ratcliff appeared at the hearing on behalf of the City of Laurel
and Wayne Thompson appeared on behalf of Jones County. At the hearing, Hudson,
Ratcliff and Thompson discussed service of process on the defendants. Hudson made
it clear that it was his opinion that he was not responsible for serving the defendants
with process.
Nevertheless, following the hearing, Hudson served the defendants with process
and they appeared by way of Answers. The City of Laurel, Jones County and Gavin
subsequently filed Motions for Summary Judgment. On October 13, 2009, the Circuit
Court heard oral argument on the defendants’ Motions for Summary Judgment and
granted the same. A Final Judgment issued on October 28, 2009. Hudson appealed
the Final Judgment and on February 24, 2011, the Mississippi Supreme Court affirmed
the trial Court’s ruling.
On March 5, 2010, Hudson filed suit in the Circuit Court of Jones County,
Mississippi, against Jones County, Mississippi, the Jones County Board of Supervisors
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and Wendell Bart Gavin. In his Complaint, Hudson contends that he has suffered
violations of his Equal Protection and Due Process rights under the United States
Constitution. Hudson also alleges a conspiracy claim under 42 U.S.C. § 1985. On
June 9, 2010, the defendants timely removed the case to this court asserting federal
question jurisdiction, 28 U.S.C. § 1441(b). The court previously denied a motion to
remand. The court has also granted a motion by Gavin and Jones County to dismiss
the state law claims of the plaintiff.
On November 24, 2010, Gavin filed his Motion for Summary Judgment arguing
that Hudson failed to demonstrate he suffered a constitutional deprivation. On
February 7, 2011, this court granted Gavin’s Motion for Summary Judgment ruling that
Hudson failed to demonstrate a constitutional violation and dismissing Gavin in his
individual capacity Hudson’s Cross-Motion for Summary Judgment was denied as was
a Motion for Reconsideration filed by Hudson. Jones County and Wendell Bart Gavin,
in his official capacity, have now moved for summary judgment and Hudson has filed a
cross-motion for summary judgment.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment
where "the pleadings, the discovery and disclosure materials on file, and any affidavits,
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." FRCP 56(c); and see Celotex Corporation v.
Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a
material question of fact is itself a question of law that the district court is bound to
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consider before granting summary judgment. John v. State of La. (Bd. of T. for State C.
& U.), 757 F.2d 698, 712 (5th Cir. 1985).
A Judge' function at the summary judgment stage is not himself to weigh the
s
evidence and determine the truth of the matter, but to determine whether there is a
genuine issue for trial. There is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for that party. If the evidence
is merely colorable, or is not significantly probative, summary judgment is appropriate.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is
not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis,
799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue,
therefore, does not foreclose summary judgment. The dispute must be genuine, and
the facts must be material." Id. "With regard to '
materiality'only those disputes over
,
facts that might affect the outcome of the lawsuit under the governing substantive law
will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d
265, 272 (5th Cir. 1987). Where "the summary judgment evidence establishes that one
of the essential elements of the plaintiff' cause of action does not exist as a matter of
s
law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477
U.S. at 323, 106 S.Ct at 2552." Topalian 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
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material fact and the appropriateness of judgment as a matter of law to prevail on his
motion. Union Planters Nat. 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, 757 F.2d at 708. "Summary judgment
cannot be supported solely on the ground that [plaintiff] failed to respond to defendants'
motion for summary judgment," even in light of a Local Rule of the court mandating
such for failure to respond to an opposed motion. Id. at 709.
However, once a properly supported motion for summary judgment is presented,
the nonmoving party must rebut with "significant probative" evidence. Ferguson v.
National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the
nonmoving litigant is required to bring forward '
significant probative evidence'
demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting
Antitrust Lit. , 672 F.2d 436, 440 (5th Cir. 1982). To defend against a proper summary
judgment motion, one may not rely on mere denial of material facts nor on unsworn
allegations in the pleadings or arguments and assertions in briefs or legal memoranda.
The nonmoving party' response, by affidavit or otherwise, must set forth specific facts
s
showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also,
Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "’[t]he burden to discover a genuine issue of fact is not on [the]
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court,’ (Topalian 954 F.2d at 1137), ‘Rule 56 does not distinguish between documents
merely filed and those singled out by counsel for special attention-the court must
consider both before granting a summary judgment.’" John, 757 F.2d at 712 (quoting
Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980)).

ANALYSIS
In this case, Hudson contends that Jones County, Mississippi1, deprived him of
his right to due process and equal protection by failing to “summons” Election
Commissioners to his election contest and by failing to ensure that his contest was
heard by a jury. Hudson further contends that Jones County conspired to deprive him
of his constitutional rights in contravention of 42 U.S.C. § 1985(3). The County
contends that Hudson cannot demonstrate he has suffered a constitutional deprivation
and, even could he do so, he has failed to prove any such violation was caused by a
policy, practice or custom of Jones County. Thus, Jones County is entitled to a
judgment as a matter of law.

ANALYSIS
A local government, such as Jones County, can be held liable under Section
1983 only if "the governmental body itself '
subjects' person to a deprivation of rights
a
or '
causes' person ' be subjected' such deprivation." Connick v. Thompson, 131
a
to
to
S. Ct. 1350, 1359 (2011). Such governmental entities are "responsible only for [their]

1

Hudosn’s claims against Gavin in his official capacity are nothing more than claims against the
County itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

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own illegal acts" and are "not vicariously liable under § 1983 for [their] employees'
actions." Id. As such, plaintiffs who seek to impose liability under § 1983 must prove
that an "action pursuant to official municipal policy" caused their injury. Id. In
particular, a plaintiff must demonstrate (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. Rivera v.
Houston Indep. Sch. Dist, 349 F.3d 244, 247-249 (5th Cir. 2003).
The Fifth Circuit defines a "policy or custom" as either (1) a policy statement,
ordinance, regulation, or decision that is officially adopted and promulgated by the
municipality' lawmaking officers or by an official to whom the lawmakers have
s
delegated policy-making authority; or (2) 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. McGregory v. City of Jackson, 335 Fed. Appx. 446, 448449 (5th Cir 2009).
I. Due Process
To state a claim for a due process violation, Hudson must establish a
“recognized „liberty or property. interest within the purview of the Fourteenth
Amendment, and that he was intentionally or recklessly deprived of that interest, even
temporarily, under color of state law.' Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir.
"
1990). The procedural component of the Due Process Clause makes certain that
citizens receive fair process i.e. notice and an opportunity to respond, when deprived of
a protected liberty interest. Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562 (5th
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Cir. 2003). The substantive due process "bars certain arbitrary, wrongful government
actions “regardless of the fairness of the procedures used to implement them.” Marco
Outdoor Adver., Inc. v. Reg'l Transit Auth., 489 F.3d 669, 673 (5th Cir.. 2007) (quoting,
Zinermon v. Burch, 494 U.S. 113, 125 (1990)). Substantive due process is violated by
state conduct that “shocks the conscience.” McClendon v. City of Columbia, 305 F.3d
314, 326 (5th Cir. 2002).
Thus, in order to prove a due process violation, Hudson must first show that he
has a “recognized liberty or property interest within the purview of the Fourteenth
Amendment.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1995). The
United States Supreme Court has explained that to “have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it … more
than a unilateral expectation of it[.]” Board of Regents v. Roth, 408 U.S. 564, 569-70
(1972). A person must “instead, have a legitimate claim of entitlement to” the property
interest. Id.
Property interests are not created by the Constitution; rather, “they are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Id. at 577. While the “underlying substantive
interest is created by ‘an independent source such as state law,’ federal constitutional
law determines whether that interest rises to the level of a ‘legitimate claim of
entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9 (1978); Woodard v. Andrus, 419 F.3d 348 (5th Cir. 2005) (a
violation of state statute alone is not cognizable under § 1983).
A. Election Commissioners
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Hudson points to Miss. Code Ann.§ 23-15-931 as evidence that he was
constitutionally entitled to have his contest heard by Election Commissioners; however,
that section is wholly inapplicable to Hudson’s election contest. Section 23-15-931 is
found in Sub-article B of Article 29 of Mississippi’s Election Code and applies only to
contests of primary elections. When an individual is contesting a primary, i.e.
contesting an election for a party nominee, the petition is first heard by the parties’
executive committee. See, Miss. Code Ann. § 23-15-927. If the executive committee
fails to act reasonably, the aggrieved party can file a petition in circuit court and, on the
day of the contest hearing, subpoenas are issued to each of the five election
commissioners of the County requiring them to attend the hearing. Miss. Code Ann. §
23-15-931. Thus, in a primary election contest the Election Commissioners are
summonsed and sit with the judge or chancellor as advisors in the contest. Id.
Contrary to the above, when the election being contested is a general election,
Election Commissioners are not issued summons as their participation at the hearing is
not necessary. More specifically, in a general election contest, Section 23-15-951 of
the Mississippi Code applies as opposed to Section 23-15-931. Section 23-15-951
does not provide for the issuance of summons to Election Commissioners; rather, such
contests are heard by a jury alone. Miss. Code Ann. § 23-15-951.
Inasmuch as the election which Hudson contested was a general election, it falls
under Section 23-15-951 and does not require summons be issued to the Election
Commissioners. Without question, Hudson has no legitimate entitlement to a contest
before Election Commissioners. In the absence of a protected property interest,
Hudson cannot demonstrate that he suffered a constitutional violation and, thus, any
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due process claim must be dismissed

B. Jury.
Hudson also complains that he had a constitutionally protected property interest
in having his case heard by a jury. Indeed, Section 23-15-951 provides that election
contests are “tried by a jury.” Miss. Code Ann. § 23-15-951. While this fact alone is
insufficient to establish a constitutionally protected property interest, Hudson’s claim
against Jones County would fail even if this court assumes such an interest.
First, as Hudson has not provided any evidence that Jones County through
Gavin deprived him of a jury trial. Next, and more importantly, Hudson was not denied
a jury trial by anyone; rather, he was simply unable to get past the defendants’ Motion
for Summary Judgment in state court. It is well settled in the Fifth Circuit that the entry
of a summary judgment does not violate any constitutional rights. See, Oglesby v.
Terminal Trans. Co., 543 F.2d 1111, 1113 (5th Cir. 1976). The function of a jury is to try
the material facts and where no such facts are in dispute there is no need for a jury trial.
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). Hudson had an opportunity to
respond to the defendants’ Motion for Summary Judgment in the state court and he
failed to demonstrate any disputed material facts. Thus, the state court granted
summary judgment and that ruling has been affirmed by the Mississippi Supreme
Court. Hudson has clearly failed to demonstrate a constitutional entitlement to a jury or
a deprivation of the same.
Hudson has not demonstrated a constitutionally protected property interest, thus
his due process claim against Jones County must be dismissed. In addition, even if
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Hudson was able to demonstrate a constitutional violation, he must establish that a
municipal policy, practice or custom was the “moving force” behind that violation.
Rivera, 349 F.3d at 247-249. Hudson has not and cannot do so and, as such, his claim
fails for this reason as well.

II. EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment directs that “all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburn Living
Ctr., 473 U.S. 432 (1985). A plaintiff can demonstrate an equal protection claim by
providing evidence that a state actor intentionally discriminated against him because of
membership in a protected class or that he has been intentionally treated differently
from others similarly situated and there is no rational basis for the disparate treatment.
See, Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999); Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)(class of one claim).
Hudson has not demonstrated either. Although Hudson is an African-American,
and thus, a member of a protected class, he has not provided any evidence to
demonstrate that Jones County intentionally and purposefully discriminated against him
when he failed to summons election commissioners to his election contest or that
Hudson was not given a jury trial. Given that Jones County, through Gavin, had no duty
to summons the election commissioners or provide a jury trial wholly undermines
Hudson’s theory. Nevertheless, even had such a duty existed, Hudson has failed to
provide evidence of purposeful discrimination. See, Muhammad v. Lynaugh, 966 F.2d
901, 903 (5th Cir. 1992).
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The Supreme Court has defined “discriminatory purpose” as being “more than
intent as volition or intent as awareness of consequences;” rather, the decision maker
must have “selected or reaffirmed a course of action at least in part ‘because of,’ not
merely ‘in spite of’ its adverse effects upon an identifiable group.” Personnel
Administrator v. Feeney, 442 U.S. 256, 279 (1979). There is absolutely no proof that
Jones County, through Gavin, took any action “because of” the adverse effects his
alleged actions would have upon African Americans. At his deposition, Hudson
admitted that he had no document, record or other item that evidenced that Jones
County nor Gavin treated him differently because he was an African American. Hudson
has merely made bald, unsupported conclusory allegations of discrimination and the
same are simply not sufficient. Sossamon v. Lone Star State of Tex., 560 F.3d 316,
336 (5th Cir. 2009).
Similarly, Hudson has failed to provide any evidence that any person similarly
situated to him was treated differently. That is, Hudson has not demonstrated that any
white person, pro se or otherwise, contesting a general election was treated any
different than he was. In fact, Hudson admits that he has not even “looked” to see if
any person was treated differently than him. This failure in proof is fatal to Hudson’s
claim and requires the same be dismissed. Further, even had Hudson demonstrated a
constitutional violation, he has failed to provide evidence that any such violation was the
result of a municipal policy or practice and, thus, his claim must be dismissed for this
reason as well.
III. 42 U.S.C. § 1985(3)
Finally, Hudson has made broad, conclusory allegations that Jones County
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conspired to deprive him of his constitutional rights. Jones County, Mississippi, a
municipality, is “incapable of entering into a conspiracy,” thus, Hudson’s claim under
Section 1985 fails. Batiste v. City of Beaumont, 421 F. Supp. 2d 969, 988 (E.D. Tex.
2005).
Furthermore, even were that not the case, as this court ruled in its prior Order,
Hudson has failed to provide any evidence of any conspiracy. To maintain a claim
under section 1985(3), a plaintiff must allege that
(1) the defendants conspired (2) for the purposes of depriving, either
directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the
laws, and (3) one or more of the conspirators committed some act in
furtherance of the conspiracy; whereby (4) another person is injured in his
person or property or deprived of having and exercising any right or
privilege of a citizen of the United States; and (5) the action of the
conspirators is motivated by racial animus.
Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 270 n. 12 (5th Cir.2001) (quoting,
Wong v. Stripling, 881 F.2d 200, 202-3 (5th Cir.1989)). Clearly Hudson’s Section 1985
claims must be dismissed as he cannot meet any of the elements of proof.
First, Hudson has failed to offer any proof that Jones County “conspired” with
any person to deprive him of his right to equal protection. “The essence of a conspiracy
is an understanding or agreement between the conspirators.” Lockett v. New Orleans
City, 639 F. Supp. 2d 710, 743 (E.D.LA 2009). While Hudson alleges Jones County
through Gavin conspired with one of his deputy clerks, Ms. Bush, to deprive him of his
constitutional rights, he fails to offer any evidence in support of this allegation. In fact,
the only allegations Hudson makes are that Ms. Bush failed to properly file his
certificate of compliance when he was appealing the defendants’ summary judgment in

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his election contest.
Hudson admitted in his deposition that he was not aware of a single conversation
between Bush and Gavin regarding the certificate of compliance much less evidence
that the two had an understanding or agreement to take any concerted action with the
specific intent of depriving him of a constitutional right because he was an African
American. Hudson simply has provided no evidence whatsoever that Gavin conspired
with any person to deprive him of equal protection of the laws.
Significantly, even if there was evidence of some conspiracy, there is no
evidence that the same was motivated by racial animus. To be actionable, a Section
1985 conspiracy must be undertaken to violate a plaintiff’s rights based upon their
membership of a protected class of persons. See, Granville v. Hunt, 411 F.2d 9, 11 (5th
Cir. 1969). There is absolutely no such evidence in this case.
Significantly, inasmuch as all of the individuals about whom Hudson complains
are Jones County employees, any Section 1985 claim would also be barred by the
“intra corporate conspiracy” doctrine. More specifically, in the Fifth Circuit, a
municipality and its employees are considered to be a single legal entity, and the entity
is therefore incapable of conspiring with itself for purposes of satisfying Section 1985.
See, Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994); Thompson v. City of
Galveston, 979 F.Supp. 504, 511-12 (F.D.Tex. 1997).
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion for Summary
Judgment [#66] filed on behalf of Defendant Jones County and Wendell Bart Gavin, in
his official capacity, is Granted and the Plaintiff’s Complaint is dismissed with
prejudice.
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IT IS FURTHER ORDERED AND ADJUDGED that the Cross-Motion for
Summary Judgment [#64] filed on behalf of the Plaintiff, Anthony J. Hudson is denied.
A separate judgment shall be entered herein in accordance with Rule 58, Federal Rules
of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 3rd day of October, 2011.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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