Steverson v. Forrest County Mississippi et al

Filing 28

ORDER finding as moot Defendants' 7 Motion to Dismiss Official Capacity and State Law Claims; denying Defendants' 12 Motion for Particular Pleading to Assertion of Qualified Immunity Defense; denying Defendants' 18 Motion to D ismiss Official Capacity and State Law Claims; denying Defendants' 20 Motion for Particular Pleading to Assertion of Qualified Immunity Defense; granting Plaintiff's 23 Motion to Dismiss. Defendants the Mississippi Department of Pub lic Safety, Commissioner Albert Santa Cruz and Trooper Jamie Atkins are dismissed from this cause without prejudice. All state law and official capacity claims against Trooper Clay Loftin are dismissed without prejudice. Counsel for the parties are to contact the chambers of U.S. Magistrate Judge Michael Parker within seven (7) days of the entry of this Order to schedule a case management conference. Signed by District Judge Keith Starrett on June 13, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DERRICK STEVERSON
VERSUS

PLAINTIFF
CIVIL ACTION NO. 2:12cv169-KS-MTP

FORREST COUNTY, MISSISSIPPI;
FORREST COUNTY SHERIFF’S DEPARTMENT;
FORREST COUNTY SHERIFF BILLY MCGEE;
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY;
COMMISSIONER ALBERT SANTA CRUZ;
TROOPER JAMIE ATKINS AND TROOPER CLAY
LOFTIN, INDIVIDUALLY, AND IN THEIR PROFESSIONAL
CAPACITY AS OFFICERS OF THE MISSISSIPPI HIGHWAY
PATROL; DEPUTY MATT FINDLEY, CAPTAIN GLEN
MOORE, AND DEPUTY RANDALL SMITH, INDIVIDUALLY,
AND IN THEIR PROFESSIONAL CAPACITY AS OFFICERS
OF THE FORREST COUNTY SHERIFF’S DEPARTMENT;
JOHN AND/OR JANE DOES 1-10

DEFENDANTS

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss Official Capacity and
State Law Claims [7] of the Defendants the Mississippi Department of Public Safety
(“MDPS”), Commissioner Albert Santa Cruz, Trooper Jamie Atkins and Trooper Clay
Loftin; the Motion for Particular Pleading to Assertion of Qualified Immunity Defense [12]
of Trooper Atkins and Trooper Loftin; the Motion to Dismiss Official Capacity and State
Law Claims [18] of the Defendants Forrest County, Mississippi, the Forrest County
Sheriff’s Department, Forrest County Sheriff Billy McGee, Deputy Matt Findley, Captain
Glen Moore and Deputy Randall Smith; the Motion for Particular Pleading to Assertion
of Qualified Immunity Defense [20] of Deputy Findley, Captain Moore and Deputy
Smith; and Plaintiff Derrick Steverson’s Motion to Dismiss [23]. Having considered the
parties’ submissions, the record and the applicable law, the Court finds that:

1)

Plaintiff’s Motion to Dismiss [23] should be granted;

2)

the Motion to Dismiss Official Capacity and State Law Claims [7] should
be denied as moot;

3)

the Motion to Dismiss Official Capacity and State Law Claims [18] should
be denied;

4)

the Motion for Particular Pleading to Assertion of Qualified Immunity
Defense [12] should be denied; and

5)

the Motion for Particular Pleading to Assertion of Qualified Immunity
Defense [20] should be denied.
BACKGROUND

On July 13, 2012, Plaintiff Derrick Steverson filed suit in the Circuit Court of
Forrest County, Mississippi against Forrest County, the Forrest County Sheriff’s
Department, Sheriff McGee, the MDPS, Commissioner Santa Cruz, Trooper Atkins
(individually and in his official capacity), Trooper Loftin (same), Deputy Findley (same),
Captain Moore (same) and Deputy Smith (same). (See Compl. [1-2].) The Complaint
asserts federal and state law claims arising from Steverson’s interaction with several
law enforcement officers following his arrest for driving under the influence (“DUI”) and
careless driving on or about March 27, 2011. Steverson alleges that on March 27, he
was forced to pull his vehicle off the road (Highway 49 South) after it burst into flames
on his way to the Mississippi Gulf Coast from Hattiesburg. A motorist picked Steverson
up and brought him to a gas station a few miles down the road after he started walking
south in order to get help. Shortly thereafter, a Forrest County Sheriff’s Deputy arrived
at the gas station, handcuffed Steverson and placed him in the back of a squad car. A
-2-

Trooper from the Mississippi Highway Patrol subsequently arrived on the scene and
cited Steverson for DUI and careless driving. Steverson was then brought to the
Forrest County Jail in the Trooper’s vehicle. Steverson alleges that the Trooper and a
Sheriff’s Deputy assaulted him at the Jail by hitting him in the face multiple times.
Steverson further contends that a Sheriff’s Deputy sprayed him with pepper spray or
mace while he was locked in a holding cell and that at no time was he acting in a
manner that justified such a measure. Purportedly, the preceding events were recorded
on a camera system at the Jail, but video of the incident has been destroyed and/or
withheld from Steverson’s counsel in the related DUI prosecution. Steverson allegedly
suffered physical injuries, severe mental anguish and emotional trauma, and incurred
medical expenses as a result of the subject incident.
Count one of Steverson’s Complaint alleges violations of the Fourth, Eighth and
Fourteenth Amendments of the United States Constitution pursuant to Title 42 U.S.C. §
1983. The Complaint also asserts the following state law claims: assault and battery;
unlawful use of excessive force; failure to adequately instruct, correct, discipline, train,
supervise and correct; intentional infliction of emotional distress; and spoliation of
evidence, video of the March 27, 2011 incident at the Forrest County Jail.
On September 27, 2012, the MDPS, Commissioner Santa Cruz, Trooper Atkins
and Trooper Loftin (collectively referred to as the “State Defendants”) removed the
proceeding to this Court on the basis of federal question jurisdiction, 28 U.S.C. § 1331,
and supplemental jurisdiction, 28 U.S.C. § 1367. (See Notice of Removal [1].) Also on
September 27, Forrest County, the Forrest County Sheriff’s Department, Sheriff McGee,
Deputy Findley, Captain Moore and Deputy Smith (collectively referred to as the
-3-

“County Defendants”) filed their Joinder of Defendants in Notice of Removal [2]. The
Court is satisfied that federal jurisdiction exists over this cause and is ready to rule on
the parties’ pending motions.
DISCUSSION
The State Defendants’ Motion to Dismiss Official Capacity and State Law Claims
[7] and Plaintiff’s Motion to Dismiss [23]
The State Defendants have moved for the dismissal of all of Steverson’s claims,
except for the individual capacity claims against Trooper Atkins and Trooper Loftin, on
the following grounds:
(1) all of the State Defendants, in their official capacity, are protected from
liability by the sovereign immunity guaranteed by the Eleventh Amendment
of the United States Constitution to the State of Mississippi, its agencies and
state officials acting in their official capacities; (2) the MDPS, Santa Cruz,
Loftin and Atkins are not “persons” amenable to suit under 42 U.S.C. § 1983;
(3) pursuant to Miss. Code Ann. § 15-1-35, the Plaintiff’s state law claims
against the State Defendants set forth in Counts II through VI of the
Complaint are time-barred; and (4) the Plaintiff’s state law claims are barred
by Miss. Code Ann. § 11-46-11.
(Mot. to Dismiss [7] at ¶ 2.) Steverson has moved for the dismissal without prejudice of
all of his claims against the State Defendants except for his claims against Trooper
Loftin in his individual capacity brought under 42 U.S.C. § 1983. (See Mot. to Dismiss
[23] at ¶¶ 1-4.) Steverson’s dismissal motion was filed subsequent to the State
Defendants’ request for dismissal. No Defendant has responded in opposition to
Steverson’s Motion to Dismiss [23].
Based on the foregoing, the Court will grant Steverson’s dismissal request. All
claims against the State Defendants, except for the individual capacity claims against
Trooper Loftin, will be dismissed without prejudice. The State Defendants’ dismissal
-4-

motion will be denied as moot in light of the ruling on Steverson’s Motion to Dismiss
[23].
The County Defendants’ Motion to Dismiss Official Capacity and State Law
Claims [18]
The County Defendants’ request for dismissal is hardly a model of consistency or
clarity. The motion asserts that there are four reasons why all claims against the
County Defendants, except for the individual capacity claims against Deputy Findley,
Captain Moore and Deputy Smith, should be dismissed. However, only one
reason–sovereign immunity–is listed in support of dismissal. (See Mot. to Dismiss [18]
at ¶ 2.) Further, the supporting Memorandum of Authorities [19] uses argument
headings that are not expounded upon, or supported by the briefing that follows. It is
clear, however, that the County Defendants seek dismissal pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Therefore, the Court will initially set forth the
applicable standard of review. Next, the Court will address the County Defendants’
stated bases for dismissal. Any remaining arguments not specifically addressed herein
have been considered and fail to alter the outcome of the Court’s ruling on this motion.
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.; see also In re Great Lakes Dredge & Dock Co.,
-5-

624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual allegations
must be enough to raise a right to relief above the speculative level.’”) (quoting
Twombly, 550 U.S. at 555). A complaint containing mere “labels and conclusions, or a
formulaic recitation of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss.,
681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted).
Although courts are to accept all well-pleaded facts as true and view those facts in the
light most favorable to the nonmoving party, courts are not required “to accept as true a
legal conclusion couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citation omitted). Ultimately, the court’s
task “is to determine whether the plaintiff has stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood of success.” In re McCoy, 666 F.3d
924, 926 (5th Cir. 2012) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010)), cert. denied, 133 S. Ct. 192 (2012).
1.

The County Defendants are protected from liability by the sovereign
immunity guaranteed by the Eleventh Amendment of the United States
Constitution to the State of Mississippi, its agencies and state officials
acting in their official capacities.

This argument is without merit. Only States and state actors are immunized from
suits under federal law. See N. Ins. Co. of N.Y. v. Chatham County, Ga., 547 U.S. 189,
193, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006) (citing Alden v. Maine, 527 U.S. 706,
740, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999); Mt. Healthy City Bd. of Ed. v. Doyle,
429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)). Accordingly, the United
States Supreme “Court has repeatedly refused to extend sovereign immunity to
counties.” Id. (numerous citations omitted); see also Black v. N. Panola Sch. Dist., 461
-6-

F.3d 584, 596 (5th Cir. 2006) (“[L]esser governmental entities such as counties and
municipalities are not considered arms of the state for purposes of Eleventh
Amendment immunity.”) (citations omitted). Forrest County, the Forrest County
Sheriff’s Department and the Sheriff of Forrest County are not guaranteed immunity by
the Eleventh Amendment pursuant to this controlling precedent. Deputy Findley,
Captain Moore and Deputy Smith, all employees of the Forrest County Sheriff’s
Department,1 are also not afforded immunity under the Eleventh Amendment.
A suit against a local governmental entity may be barred if it is considered an
“arm of the state” pursuant to the six (6) factors identified by the Fifth Circuit in
Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991). However, the
County Defendants do not refer to themselves as arms of the State of Mississippi or
make any reference to the six Delahoussaye factors. Therefore, the Court rejects the
County Defendants’ request for dismissal based on the Eleventh Amendment.
2.

The County Defendants are protected from liability by the Mississippi Tort
Claims Act (“MTCA”), Miss. Code Ann. §§ 11-46-1 to -23.

The County Defendants cite various provisions of the MTCA, but fail to show that
dismissal is required under the provisions or that the provisions are applicable to the
specific facts of this case. First, Forrest County and the Forrest County Sheriff’s
Department assert that they are entitled to immunity since they both meet the definition
of a “political subdivision” under the MTCA. See Miss. Code Ann. § 11-46-1(i). Political
subdivisions are not immunized from all suits under the MTCA. In fact, the MTCA
specifically waives immunity from suits for money damages arising out of the torts of
1

(See Compl. [1-2] at ¶ 9; Answer [3] at ¶ IX.)
-7-

political subdivisions and the torts of their employees acting within the course and scope
of their employment. See Miss. Code Ann. § 11-46-5(1).
Second, all of the County Defendants apparently contend that they are immune
from liability in their official capacities pursuant to the liability exemptions provided under
section 11-46-9(1)(a)-(e) of the Mississippi Code. In support of this dismissal request,
the County Defendants quote the exemptions from liability listed under the
aforementioned statute and the definition of “employee” under section 11-46-1(f).
However, no reasoning or analysis is presented as to how or why the facts presented in
this action justify dismissal under these various exemptions. This Court’s task is not to
construct arguments, identify relevant facts or supply legal reasoning on behalf of a
moving party. Thus, the Court declines to grant the County Defendants’ conclusory and
unsupported request for the dismissal of claims under the MTCA.
3.

The County Defendants, in their official capacities, are not “persons” that
can be sued under 42 U.S.C. § 1983.

The Court disagrees. “Counties and county officials like those . . . [before this
Court] are considered to be ‘persons’ under § 1983, whereas the state and arms of the
state are not.” Myers v. Miss. Office of Capital Post-Conviction Counsel, 720 F. Supp.
2d 773, 779 (S.D. Miss. 2010) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70,
109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Monell v. Dep’t of Soc. Servs. of N.Y., 436
U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)); see also Hampton Co. Nat’l
Sur., LLC v. Tunica County, Miss., 543 F.3d 221, 224 (5th Cir. 2008) (“A ‘municipality,’
which in this jurisprudence includes other local governmental units such as a county, is
a ‘person.’”) (emphasis added; citation omitted). Clearly, the County Defendants are not
-8-

entitled to dismissal on this ground.
4.

Plaintiff has failed to plead adequately municipal liability under 42 U.S.C. §
1983.

This basis for dismissal is also rejected. “For purposes of liability, a suit against
a public official in his official capacity is in effect a suit against the local government
entity he represents.” Mairena v. Foti, 816 F.2d 1061, 1064 (5th Cir. 1987) (citations
omitted). A governmental entity cannot be held liable on a respondeat superior theory
of recovery under § 1983. Monell, 436 U.S. at 691. When the defendant is a
municipality or other form of local government, the alleged deprivation of rights must be
connected to an official custom, policy, practice, ordinance or regulation. Jones v.
Lowndes County, Miss., 678 F.3d 344, 349 (5th Cir. 2012) (citing Monell, 436 U.S. at
690-91). A claim of municipal liability requires proof of the following three elements:
“[1] a policymaker; [2] an official policy; and [3] a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578
(5th Cir. 2001) (citing Monell, 436 U.S. at 694).
The County Defendants challenge the adequacy of Plaintiff’s pleading with
respect to the second and third required elements of municipal liability against Forrest
County and the Forrest County Sheriff’s Department. As to the second element, official
policy is usually evidenced by promulgated policy statements, regulations or ordinances.
See Piotrowski, 237 F.3d at 579. However, a cognizable policy for purposes of § 1983
may also be evidenced by custom: “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
-9-

policy.” Id. The Complaint posits, inter alia, that the Forrest County Sheriff’s
Department and its deputies have engaged in a “systematic pattern of conduct
consist[ing] of individual acts of excessive force, assault and battery, and humiliation
perpetrated on Plaintiff and other citizens . . . .” (Compl. [1-2] at ¶ 16.)
As to the third element of municipal liability, the Complaint’s allegations regarding
Plaintiff’s interactions with law enforcement officers at the Forrest County Jail lend
plausibility to the inference that he was subjected to excessive force in violation of the
Fourth or Fourteenth Amendment. (See Compl. [1-2] ¶¶ at 22-23.) Municipal liability for
this violation may attach if Plaintiff shows “objective deliberate indifference” on the part
of the governmental entity. Brumfield v. Hollins, 551 F.3d 322, 331 (5th Cir. 2008)
(citations omitted). Under this standard, “[k]nowledge [actual or constructive] on the
part of a policymaker that a constitutional violation will most likely result from a given
official custom or policy is a sine qua non of municipal liability . . . .” Burge v. St.
Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). Plaintiff must also show that the
policy or custom was the moving force behind the violation, i.e., “there must be a direct
causal link between the municipal policy and the constitutional deprivation.” Piotrowski,
237 F.3d at 580. The Complaint alleges that the Forrest County Sheriff’s Department
knew or should have known of the aforementioned custom or pattern of conduct and
made no effort to stop it; and, that such acts or omissions directly and proximately
caused the Plaintiff to sustain physical injury resulting in a deprivation of constitutional
and statutory rights. (See Compl. [1-2] at ¶¶ 16-18.) Construing “the complaint in the
light most favorable to the plaintiff and draw[ing] all reasonable inferences in the
plaintiff’s favor”, the Court finds that Steverson has pled a plausible case of municipal
-10-

liability. Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009) (citations omitted).2
In sum, the County Defendants have failed to show that Rule 12(b)(6) requires
dismissal of any of Plaintiff’s claims.
Trooper Loftin’s Motion for Particular Pleading to Assertion of Qualified Immunity
Defense [12]3 and Deputy Findley, Captain Moore and Deputy Smith’s Motion for
Particular Pleading to Assertion of Qualified Immunity Defense [20]
All Defendants sued in their individual capacities have asserted the defense of
qualified immunity. These Defendants contend that the Complaint lacks specificity with
respect to their alleged wrongdoing and that their assertion of qualified immunity
requires the Plaintiff to submit a reply under the Fifth Circuit’s decision in Schultea v.
Wood, 47 F.3d 1427 (5th Cir. 1995). The following section of Schultea is pertinent to
this request for relief:
When a public official pleads the affirmative defense of qualified
immunity in his answer, the district court may, on the official's motion or on
its own, require the plaintiff to reply to that defense in detail. By definition,
the reply must be tailored to the assertion of qualified immunity and fairly
engage its allegations. A defendant has an incentive to plead his defense
with some particularity because it has the practical effect of requiring
particularity in the reply.
47 F.3d at 1433. Further, Federal Rule of Civil Procedure 7 authorizes a pleading in the
form of a reply to an answer “if the court orders one”. Fed. R. Civ. P. 7(a)(7).
The Court finds that the Complaint adequately details the wrongdoing underlying
Plaintiff’s claims (law enforcement officers striking him in the face multiple times and

2

Of course, this claim will fail at that summary judgment stage or at trial if Steverson
is unable to present any evidence in support of his allegations.
3

Trooper Atkins is also a party to this motion. However, there is no need to address
specifically his request for relief given the Court’s ruling on the Plaintiff’s Motion to
Dismiss [23].
-11-

using pepper spray on him without justification),4 but falls short in particularity by failing
to identify specifically the Defendants involved in the alleged tortious conduct. Cf.
Johnson v. Tex. Dep’t of Criminal Justice, No. 5:11CV171, 2012 WL 1066507, at *5
(E.D. Tex. Mar. 5, 2012) (ordering the plaintiff to file a Rule 7(a) reply where her
complaint grouped together all “Defendants” and a determination could not be made as
to which claims specifically applied to each individual defendant). Yet, in response to
the subject motions, Plaintiff Steverson has provided that “[Trooper] Loftin, [Deputy]
Smith, [Captain] Moore, and [Deputy] Findley took part in the assault of the Plaintiff in
various locations at the jail.” (Resp. [25] at p. 3.) This response and the Complaint,
viewed in the aggregate, are sufficiently tailored to meet the individual Defendants’
conclusory and non-particularized assertions of qualified immunity. Therefore, a
Schultea reply is unnecessary and the subject motions will be denied. Cf. Teames v.
Henry, No. 3:03CV1236, 2004 WL 357961, at *5 (N.D. Tex. Feb. 26, 2004) (denying the
defendants’ request for a Schultea reply because, inter alia, the plaintiff’s response to a
motion for judgment on the pleadings provided greater detail on the issue of qualified
immunity).
CONCLUSION
For the foregoing reasons,
IT IS ORDERED AND ADJUDGED that the Plaintiff’s Motion to Dismiss [23] is
granted. Defendants the Mississippi Department of Public Safety, Commissioner Albert
Santa Cruz and Trooper Jamie Atkins are dismissed from this cause without prejudice.

4

(See Compl. [1-2] at ¶¶ 22-23.)
-12-

All state law and official capacity claims against Trooper Clay Loftin are dismissed
without prejudice. Plaintiff’s claims against Trooper Loftin in his individual capacity
under 42 U.S.C. § 1983 remain pending.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion to Dismiss Official
Capacity and State Law Claims [7] is denied as moot.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion to Dismiss Official
Capacity and State Law Claims [18] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion for Particular
Pleading to Assertion of Qualified Immunity Defense [12] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion for Particular
Pleading to Assertion of Qualified Immunity Defense [20] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that counsel for the parties are to
contact the chambers of the United States Magistrate Judge Michael T. Parker within
seven (7) days of the entry of this Order to schedule a case management conference.
SO ORDERED AND ADJUDGED this the 13th day of June, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

-13-