Cooley v. City of Waynesboro et al
ORDER granting 68 Motion for Summary Judgment Signed by District Judge Henry T. Wingate on 9/19/2017 (ab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JAMES KEITH COOLEY
CIVIL ACTION No.: 2:16-CV-211-HTW-LRA1
CITY OF WAYNESBORO;
JAMES BUNCH; and MARK WEST
ORDER GRANTING SUMMARY JUDGMENT
BEFORE THIS COURT is the Motion for Summary Judgment filed by the individual
defendants, James Bunch and Mark West. [Docket no. 68]. In their motion, the individual
defendants argue that this court should grant summary judgment under the authority of Rule 562
of the Federal Rules of Civil Procedure for various reasons. The plaintiff has failed to respond to
the individual defendants’ Motion for Summary Judgment. After a review of the individual
defendants’ pleadings this court finds that their Motion for Summary Judgment is well-taken and
should be GRANTED.
Plaintiff James Keith Cooley has invoked the subject-matter jurisdiction of this court under
Title 28 U.S.C. § 13313, often referred to as “federal question jurisdiction.” Under federal question
The case number originally assigned to this matter was 4:11-cv-116-HTW-LRA. This case was transferred from the
Northern Division on December 7, 2016, when this court lifted the stay of this matter. The United States District Court
Clerk for the Southern District of Mississippi then assigned the current case number to comply with the Realignment
Act signed into law on December 20, 2013, and the Administrative Order filed on December 26, 2013.
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The
court shall grant summary judgment 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. The court should state on the record the reasons for granting or
denying the motion.
Fed. R. Civ. P. 56.
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.
28 U.S.C.A. § 1331 (West).
jurisdiction, this court has the power to exercise subject-matter jurisdiction over a lawsuit if a
plaintiff alleges some claim or right arising under the United States Constitution or federal law.
The Defendants have not challenged subject matter diversity jurisdiction; nevertheless, this
court has an independent obligation to verify it possesses subject matter jurisdiction.4
Upon a review of the pleadings of the parties, this court finds it possesses federal question
subject matter jurisdiction because James Keith Cooley asserts various claims under the authority
of Title 42 U.S.C. § 19835, a federal enactment. This court also finds that it possesses supplemental
jurisdiction over Cooley’s state law claims under the authority of Title 28 U.S.C. § 13676.
The plaintiff, James Keith Cooley (hereinafter referred to as “Cooley”), filed his complaint
in this federal forum on July 12, 2011. [Docket no. 1]. In his complaint Cooley alleged causes of
action for: 42 U.S.C. § 1983 – Freedom of Expression and Speech; 42 U.S.C. § 1983 – Unlawful
Federal courts are obliged to examine the basis for the exercise of federal subject-matter jurisdiction. Smith v. Texas
Children's Hospital, 172 F.3d 923, 925 (5th Cir. 1999). A federal district court may examine its subject-matter
jurisdiction over a matter, sua sponte, at any time. Giles v. Nylcare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir.
1999) (a court must raise the issue sua sponte if it discovers that it lacks subject matter jurisdiction); 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 2007). Under Rule 12(h)(3) of the Federal
Rules of Civil Procedure, “[w]henever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” (emphasis added).
Dean v. Mozingo, 521 F. Supp. 2d 541, 551 (S.D. Miss. 2007)(overturned on other grounds).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered
to be a statute of the District of Columbia.
42 U.S.C.A. § 1983 (West).
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil
action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall
include claims that involve the joinder or intervention of additional parties.
28 U.S.C.A. § 1367 (West).
Detention; 42 U.S.C. § 1983 – Excessive Force; 42 U.S.C. § 1983 – Pursuit of Happiness; 42
U.S.C. § 1983 – Malicious Prosecution; 42 U.S.C. § 1983 – Right to be Free on His Property and
in His Person Without Interference From the State; 42 U.S.C. § 1983 – Due Process; Battery;
Trespass to Land; Malicious Prosecution; Wrongful Arrest; False Imprisonment; Tortious
Interference with Business; and Conspiracy.
The defendants filed their Answer on August 12, 2011. [Docket no. 3]. The same day,
August 12, 2011, the defendants filed their Motion for Qualified Immunity. [Docket no. 5]. The
parties engaged in immunity related discovery. On February 8, 2012, this court denied the Motion
for Qualified Immunity as premature and staying the case pending the close of immunity related
discovery. [Docket no. 27].
On May 21, 2012, the parties jointly moved to dismiss the plaintiff’s claims against
defendant Brian Everett with prejudice, which this court granted. [Docket no. 45].
The individual defendants filed their first Motion for Summary Judgment on June 8, 2012
alleging the same grounds as they have in their Motion for Summary Judgment currently before
This court held a hearing in this matter on October 10, 2012, regarding the first Motion for
Summary Judgment [Docket no. 47]. At that hearing, this court stayed the lawsuit subjudice
pending the outcome of the criminal charges that are the subject of this litigation. [Docket no. 61].
This court held a status conference in this matter on December 2, 2016, to determine if this
matter was a live controversy. The parties indicated that this lawsuit is still a live controversy, to
which this court allowed the individual defendants to re-urge their motion for summary judgment
by January 10, 2017. [Docket no. 65]. The court allowed the plaintiff until January 24, 2017, to
respond. [Docket no. 65]. The plaintiff’s attorney, Michael Crosby, file a Motion for Extension of
Time to File a Reply [Docket no. 70] which this court granted.
On March 2, 2017, this court again asked the parties for a written status update, to which
the parties replied that this matter was still a live controversy. Attorney Crosby acknowledged that
his reply to the motion for summary judgment was due on March 6, 2017. [Docket no. 72]. Despite
his tacit acknowledgement of this deadline, Attorney Crosby never filed a response.
This court issued a show cause order on May 30, 2017, ordering Attorney Crosby to show
why he had not replied to the Motion for Summary Judgment. [Docket no. 73]. Attorney Crosby
filed his response on June 6, 2017, stating that he did not expect that he would be responsible for
replying to the motion for summary judgment and asking the court to allow him time to file a reply.
[Docket no. 74]. Attorney Crosby again did not file any reply to the motion for summary judgment.
On August 4, 2017, this court issued its final extension of time to Cooley ordering that he
must file his reply to the motion for summary judgment no later than August 18, 2017. [Text Only
Order 8/4/2017]. Attorney Crosby still has not filed his reply to the motion for summary judgment.
The plaintiff has failed to respond to the individual defendants’ Motion for Summary
Judgment; therefore, this court will accept the facts presented in the individual defendants’ Motion
for Summary Judgment as undisputed. See F.R.C.P. 56(e)(2).7 This court has given the plaintiff
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts considered
undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order
Fed. R. Civ. P. 56
ample opportunity to reply to the motion for summary judgment as allowed under F.R.C.P.
56(e)(1). Accordingly, this court must take the facts submitted by the defendants in their brief in
support of their motion for summary judgment. [Docket no. 69].
On April 23, 2010, at approximately 8:00 a.m., the Wayne County, Mississippi Emergency
Operations Center (hereinafter referred to as “Central Dispatch”) received a call from an unknown
male citizen indicating that a female driver had been involved in a single-car accident in front of a
restaurant named Mississippi Fried Chicken on Mississippi Drive in the City of Waynesboro,
Mississippi. The caller informed Central Dispatch that a male individual was now driving the
vehicle involved in the single-car accident and that both the male and female were leaving the
scene of the accident.
Waynesboro Policeman, Sgt. Mark West (hereinafter referred to as “Sgt. West”) was
dispatched to the scene of the accident. When Sgt. West arrived in front of Mississippi Fried
Chicken, however, he was unable to locate any automobile accident.
Shortly thereafter, Central Dispatch received another call regarding an accident in the same
area of Waynesboro, Mississippi. The manager of the local Kentucky Fried Chicken (hereinafter
referred to as “KFC”), Rebecca “Becky” Reynolds (hereinafter referred to as “Reynolds”), had
called Central Dispatch and informed it that Cooley’s ex-wife, Sadie Cooley (hereinafter referred
to as “Sadie”), had just driven through the bushes at KFC, collided with Reynolds’ parked car and
then left the scene. Reynolds identified Sadie as the individual who had collided with her parked
car. Reynolds also had reported that Sadie was driving a white Cadillac Escalade whose tag began
with the letters “WYF.” According to Reynolds, the Cadillac was now parked at Cooley’s place
of business — Cooley Drugs — just down Mississippi Drive from the KFC.
Central Dispatch then contacted Sgt. West and informed him about the evolving situation.
Sgt. West sent Waynesboro Police Officer Stevie Walker (hereinafter referred to as “Officer
Walker”) to KFC to speak with Reynolds. Sgt. West went to Cooley Drugs to continue his
investigation. While traveling down Mississippi Drive towards Cooley Drugs, Sgt. West saw a
white Cadillac Escalade in the parking lot behind Cooley Drugs. The Cadillac matched the
description of the vehicle reported to Central Dispatch. Sgt. West drove into the parking lot directly
behind Cooley Drugs to investigate the Cadillac.
Sgt. West parked his cruiser and contacted Central Dispatch, informing Central Dispatch
that he had found a white Cadillac Escalade with the tag number “William, Young, Frank, 9, 6,
3.” The tag number on the Cadillac — WYF963 — matched the preliminary numbers previously
given to Central Dispatch by Reynolds. Sgt. West exited his patrol car and approached the white
Cadillac Escalade where he saw Sadie in the back seat of the Cadillac, allegedly asleep or passed
According to Sgt. West, Cooley came out the back door of Cooley Drugs and approached
him. Cooley told Sgt. West to get off his property, and that he was trespassing. Sgt. West responded
that he was investigating an auto accident and that as soon as he completed his investigation he
would leave the premises.
Cooley testified in his deposition that when he spoke to Sgt. West, he told Sgt. West to
leave the property. Cooley contends he told Sgt. West that Sgt. West was not authorized to come
onto Cooley’s property. Cooley then asked Sgt. West whether Sgt. West had changed a report Sgt.
West had written regarding a burglary that had taken place at Cooley Drugs — a report Cooley
says was falsified. After that inquiry, Cooley went back inside Cooley Drugs, leaving Sgt. West in
the parking lot.
After his conversation with Cooley, Sgt. West called his shift supervisor to inform him of
the confrontation. Sgt. West’s shift supervisor was occupied with another call and unavailable.
Sgt. West next called Chief Jimmie Bunch (hereinafter referred to as “Chief Bunch”) as a result.
Sgt. West informed Chief Bunch that he was investigating an automobile collision involving Sadie,
that she had fled the scene of the accident, and was now parked at Cooley Drugs. Sgt. West further
advised Chief Bunch that Cooley had told him to get off his property and threatened to charge him
with trespassing. Sgt. West told Chief Bunch that, given Cooley’s attitude towards him, he felt
Cooley was going to give him problems with the accident investigation.
Meanwhile, Officer Shannon Smith (hereinafter referred to as “Officer Smith”) arrived at
Cooley Drugs to assist Sgt. West. As Officer Smith arrived, Cooley came back out of the drugstore
and again told Sgt. West to get off his property, or he would press trespassing charges against Sgt.
After speaking with Sgt. West over the phone, Chief Bunch drove to Cooley Drugs to try
to “smooth things over.” Within five (5) or six (6) minutes of receiving the call from Sgt. West,
Chief Bunch arrived at the back parking lot of Cooley Drugs. Moments after Chief Bunch arrived,
Cooley approached him in an aggressive manner and told him that Cooley wanted the officers to
leave the Drug Store parking lot immediately. Chief Bunch replied by telling Cooley that the City
of Waynesboro Police Officers were engaged in a police investigation and that if Cooley would
“just give it a few minutes” the officers would “be gone.” Cooley informed the Chief that he “had
nothing to do with this matter, that they should go on and let [him] conduct business, they were
blocking [his] drive-through and hindering [his] business.”
Cooley then took a step in the direction of officers working Sadie’s accident. Chief Bunch,
who didn’t want Cooley interfering with the investigation, placed his hand on Cooley’s arm to
restrain him from going towards the officers. Chief Bunch then instructed Cooley to go back inside
his store and allow the officers to conduct their investigation. To which Cooley then allegedly
replied: it would be in [Chief Bunch’s] “best interest…to get [his] f…ing hands off” him, while
Cooley was pushing Chief Bunch’s hand off Cooleys biceps.
Chief Bunch testified that he felt threatened by Cooley and reached for his handcuffs and
told Cooley that he was under arrest. Cooley immediately took flight in an attempt to evade arrest.
Cooley admits Chief Bunch instructed him to go back into his store; however, Cooley tells
a markedly variant version: he contends Chief Bunch commanded him to go into the store to
retrieve Sadie’s car keys, to which he responded that he did not have a set of keys to the Escalade
because he had lost the car in the divorce proceeding with Sadie. Cooley says he next told the
officers to leave the premises as he “had nothing to do with [the] matter” and they should “go on
and let [him] conduct business…” Cooley then alleges that Chief Bunch put his hand on Cooley’s
bicep and ordered him inside to get the car keys or Chief Bunch would arrest him. Cooley claims
he responded “how can I, with you holding my arm?” According Cooley, he then “jerked” away
and “pulled loose” from Chief Bunch and started calmly towards the store.
Although Sgt. West commanded Cooley to stop when he moved away from Chief Bunch,
Cooley claims he only heard Chief Bunch tell Sgt. West to “shoot.” Cooley admits that he ran from
Chief Bunch and Sgt. West. Cooley testified in his deposition that he ran “sideways while looking
back…trying to get away from being shot” and that he made a “kind of zigzag” and a “sidestep”
to “keep from being shot.”
Cooley had a federal firearm’s license and at that time, his drug store contained, by his
count, approximately 200 weapons. Both Chief Bunch and Sgt. West were aware of the arsenal in
Once Cooley fled from arrest, Chief Bunch and Sgt. West both gave chase. As Sgt. West
chased Cooley, he drew his Taser8, and ordered Cooley to stop. When Cooley did not obey his
command, Sgt. West fired the Taser, striking Cooley in his back. The Taser automatically cycled
and stopped Cooley from fleeing, forcing him to the ground.
Once Cooley hit the ground, he immediately “reached around behind [his] back” to,
according to Cooley, “see what [he] had been shot with.” Chief Bunch and Sgt. West both believed
that Cooley was reaching around behind his back in an effort to pull one of the Taser leads from
his back. Had Cooley been able to do so, he would have been able to break the electric circuit of
the Taser and, thereby, neutralize it. Since Cooley was not yet subdued — not yet in handcuffs nor
under Chief Bunch or Sgt. West’s control — Sgt. West cycled the Taser again.
After the second cycle, Chief Bunch was able to grab Cooley’s hands and handcuff him.
The City of Waynesboro Police Officers then transported Cooley to the local jail and charged him
with resisting arrest and disorderly conduct.
A Taser or conducted electrical weapon (CEW) is an electroshock weapon sold by Axon. It fires two small dart-like
electrodes, which stay connected to the main unit by conductors, to deliver electric current to disrupt voluntary control
of muscles causing "neuromuscular incapacitation". Someone struck by a Taser experiences extreme pain and overstimulation of sensory nerves and motor nerves, resulting in strong involuntary muscle contractions.
On April 20, 2011, Cooley was convicted by the Wayne County, Mississippi Justice Court
of disorderly conduct (failure to comply)9 and resisting arrest10. Cooley appealed his convictions
to the Circuit Court; however, during the pendency of his appeal, Cooley was charged with felonies
in both the State of Alabama and the State of Mississippi. Neither felony was related to Cooley’s
criminal charges underlying this matter.
Special Prosecutor Frances Smith Stephenson and Cooley voluntarily entered a Nolle
Prosequi Agreement to dismiss Cooley’s misdemeanor convictions. The Wayne County Circuit
Court entered an Order of Nolle Prosequi finding that Cooley’s misdemeanor criminal appeal was
not being dismissed because Cooley was innocent but, rather, for purposes of judicial economy
given the pendency of felony charges against him.
a. Summary Judgment Standard of Review
“When considering a motion for summary judgment, the court must view the pleadings and
evidentiary material, and the reasonable inferences to be drawn therefrom, in the light most
favorable to the non-moving party, and the motion should be granted only where there is no
genuine issue of material fact.” Thatcher v. Brennan, 657 F. Supp. 6, 7 (S.D. Miss. 1986), aff'd,
816 F.2d 675 (5th Cir. 1987)(citing Walker v. U-Haul Co. of Miss., 734 F.2d 1068, 1070-71 (5th
(1) Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of
the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a
request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for
a violation of the law, to:
(a) Move or absent himself and any vehicle or object subject to his control from the immediate vicinity where
the request, command or order is given, […]
(i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any
breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of
disorderly conduct, which is made a misdemeanor and, upon conviction thereof, such person or persons shall
be punished by a fine of not more than Five Hundred Dollars ($500.00) or imprisonment in the county jail
for not more than six (6) months, or by both such fine and imprisonment.
Miss. Code. Ann. § 97-35-7 (West).
It shall be unlawful for any person to obstruct or resist by force, or violence, or threats, or in any other manner, his
lawful arrest or the lawful arrest of another person by any state, local or federal law enforcement officer, and any
person or persons so doing shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine
of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail not more than six (6) months,
Miss. Code. Ann. § 97-9-73 (West).
Cir. 1984)); See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 58788, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538, 553 (1986). The court must decide whether "the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
However, a motion for summary judgment may not be granted by default. “Ultimately, ‘[t]he
movant has the burden of establishing the absence of a genuine issue of material fact and, unless
he has done so, the court may not grant the motion, regardless of whether any response was filed.’
Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th
If the nonmovants fail to respond appropriately, or if they fail to respond at all,
summary judgment is not awarded to the moving parties simply by default. See
Ford—Evans v. Smith, 206 F. App'x 332, 334 (5th Cir.2006); Hetzel v. Bethlehem
Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir.1995) (quoting Hibernia Nat'l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985));
John v. Louisiana, 757 F.2d 698, 708 (5th Cir.1985). Summary judgment is
appropriate only if the moving parties have demonstrated the absence of a genuine
dispute of material fact, and shown that judgment is warranted as a matter of law.
See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.2006).
Palmer v. Chicago Title Ins. Co., 2013 U.S. Dist. LEXIS 84806, 2013 WL
3049343, at *2 (S.D. Tex. June 17, 2013).
Greer v. Healthcare Fin. Servs. LLC (In re Greer), 498 B.R. 98, 107 (Bankr. S.D. Miss. 2013).
b. Heck v. Humphrey, 512 U.S. 477 (1994)
The defendants ask this court to find that Heck v. Humphrey, 512 U.S. 477 (1994) applies
and this case should be dismissed because Cooley has not obtained a “favorable termination” of
the underlying criminal charges which color this litigation. In Heck, the United States Supreme
Court utilized the jurisprudence surrounding the common law tort of malicious prosecution to
determine that a plaintiff cannot bring a lawsuit to challenge a conviction if the underlying
conviction had not been favorably terminated.
The plaintiff says that Heck does not apply because his underlying criminal prosecutions
had nolle prosequi orders entered. Heck requires that “the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.” Heck at 486-487. This court, then, must look to determine if a nolle
prosequi is a “favorable termination” for the Heck analysis.
This court had found no authority to support either position under the Heck progeny. Heck
itself provides guidance however: “[t]he common-law cause of action for malicious prosecution
provides the closest analogy to claims of the type considered here because, unlike the related cause
of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant
to legal process.” Id at 483. Accordingly, this court next turns to the common-law tort of malicious
prosecution for further guidance.
Malicious prosecution requires the plaintiff to prove the following elements if he/she
wishes to triumph:
1. The institution or continuation of original judicial proceedings, either criminal
2. By, or at the insistence of the defendants;
3. The termination of such proceeding in plaintiff’s favor;
4. Malice in instituting the proceedings; and
5. The suffering of damages as a result of the action or prosecution complained
Wilson v. City of Biloxi, Mississippi, et al, 2013 WL 2244309, *8 (S.D. Miss. May 21,
2013)(Quoting Bearden v. BellSouth Telecommunications, Inc., 29 So.3d 761,764 (Miss. 2010)).
The third element is the analogous element with the Heck analysis.
In Wilson, United States District Court Judge Halil S. Ozerden found that the trial court
entered a nolle prosequi order based on judicial economy, not as a favorable termination in the
plaintiff’s favor. Id. The stated basis for dismissal without prejudice was lack of jurisdiction. Id.
“[D]ismissal of criminal charges for lack of jurisdiction does not reflect on the merits of the case
against [the plaintiff]” Id. (Quoting Bearden 29 So.3d at 764).
On the other hand, United States District Court Judge Tom S. Lee found a “favorable
termination” where a state prosecutor had requested a nolle prosequi order after the prosecutor
determined he did not possess enough evidence to convict the plaintiff. Polacek v. Kemper County,
Mississippi, et al. 2011 WL 9024 (S.D. Miss. Jan. 3, 2011). Judge Lee concluded that the nolle
prosequi order entered by the state trial court was based on the merits of the criminal charges and,
therefore, acted as a “favorable termination”.
Between the above two juridical shoals, this court now determines where the facts sub
judice point. The required analysis is not complicated.
In the lawsuit sub judice, Wayne County Justice Court Judge Tobey Bartee found Cooley
guilty of the underlying criminal charges at a bench trial. Cooley appealed those convictions for a
jury trial de novo and was waiting for that jury trial when he was charged with new felonies in
Alabama and Mississippi state courts. Thereafter, Cooley and his prosecutor agreed to nolle
prosequi Cooley’s underlying convictions based on judicial economy and not the merits of the
case. The agreement between Cooley and the prosecutor says as much: “The parties understand
that this matter is being dismissed not based upon the Defendant’s innocence, but based on judicial
economy.” [Docket no. 63-3]. Cooley’s attorney in both the state court convictions underlying this
matter and in this matter itself, Attorney Michael Crosby, signed the Agreement. [Docket no. 633]. Based on that Agreement, DA Stephenson moved ore tenus for the trial court to nolle prosequi
Cooley’s underlying convictions. The court’s order of nolle prosequi states:
This cause having come to be heard this day on an ore tenus motion of the State of
Mississippi, by and through its Special Prosecutor, to Nolle Prosequi the charges
of disorderly conduct and resisting arrest against the Defendant due to the
Defendant having pending felony charges in Wayne County, Mississippi and in
Alabama and in the interest of judicial economy.
[Docket no. 63-2].
This court is persuaded that the order of nolle prosequi entered in Cooley’s underlying state
convictions was not a “favorable termination” for purposes of Heck. This court, therefore, now
must determine which of the causes of action Cooley has asserted are barred by Heck.
i. False Arrest
Cooley was found guilty of disorderly conduct and resisting arrest. As discussed supra,
Cooley has not obtained a “favorable termination” of his underlying criminal convictions. For
Cooley to succeed on his false arrest claim, Cooley must show that the officers lacked probable
cause to arrest him. See Queen v. Purser, 109 Fed.App’x 659 (5th Cir. 2004). If Cooley were
successful on his cause of action for false arrest, it would necessarily implicate the validity of his
underlying criminal convictions. This court, therefore, finds that Cooley’s false arrest cause of
action is barred by Heck.
ii. Violation of Freedom of Expression
Cooley’s cause of action for violation of his freedom of expression is differently postured.
Cooley alleges that Chief Bunch violated his constitutionally-guaranteed freedom of expression
by attempting to curb his freedom of speech. Cooley complains that, at the time, he was merely
trying to assert that he did not possess the keys to his ex-wife’s vehicle and to obtain more
information about an allegedly falsified police report.
This contention by Cooley necessarily attacks the validity of his underlying conviction. To
agree with Cooley’s assertion, this court would also have to conclude that Chief Bunch arrested
Cooley not for any criminal activity, but, in an effort unconstitutionally to curb Cooley’s freedom
of speech. Undermined would be Chief Bunch’s contention that he had probable cause to arrest
Cooley. See Howell v. St. Tammany Parrish Sch. Bd., 2009 WL 387323 (E.D. La. Nov. 12, 2009);
Crow v. Comal Co., Tx., 2001 WL 1910555 (W.D. Tex. June 13, 2001); Love v. Hamlin, 1995 WL
1945473 (N.D. Miss. Mar. 9, 1995) This court, therefore, finds that Cooley’s claim, violation of
his freedom of expression, is barred by Heck.
iii. Excessive Force
Cooley claims also that law enforcement used excessive force in effectuating his arrest
when they twice used a Taser on him. This court’s analysis beings with the following observation:
Although the Heck principle applies to § 1983 excessive force claims, the
determination of whether such claims are barred is analytical and fact-intensive,
requiring us to focus on whether success on the excessive force claim requires
negation of an element of the criminal offense or proof of a fact that is inherently
inconsistent with one underlying the criminal conviction.
Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). “A claim that excessive force occurred after the
arrestee has ceased his or her resistance would not necessarily imply the invalidity of a conviction
for the earlier resistance.” Id at 498.
In this lawsuit, Cooley alleges that Sgt. West used excessive force when he utilized his
Taser on Cooley. According to Cooley, he was not resisting arrest but returning to his pharmacy
when Chief Bunch ordered Sgt. West to shoot. Cooley does not say who or with what Chief Bunch
ordered Sgt. West to shoot. This court finds it dispositive that: Sgt. West believed that Cooley was
fleeing a legal arrest order; Sgt. West knew that Cooley had multiple firearms in his store; and Sgt.
West believed that Cooley was attempting to remove the Taser darts from his back after he was
shot, but not yet in custody.
In order for Cooley to prevail on his excessive force claim, Cooley’s resisting arrest
conviction would necessarily have to be declared invalid. This court, therefore, finds that Cooley’s
excessive force claim is barred by Heck.
iv. Malicious Prosecution
As discussed in Section IV(b), supra, Cooley’s claim of malicious prosecution is barred by
v. Supervisory Liability
The defendants’ cursory treatment of how Heck would bar supervisory liability provides
this court with no authority for their position11. The defendants assert that because Cooley must
demonstrate a constitutional violation, it would necessarily invalidate the underlying conviction.
This court is not persuaded by the defendants’ argument, as various factual scenarios under claims
of failure to supervise or train might not run afoul of Heck.
This court, however, after a careful review of the pleadings in this lawsuit, still cannot
provide Cooley any benefit of this observation because this court cannot ascertain in his complaint
where Cooley asserted this cause of action. This court, therefore, finds that supervisory liability is
not a claim asserted by Cooley.
c. Qualified Immunity
The defendants also assert a qualified immunity defense. “The doctrine of qualified
immunity protects government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). See also Anderson v. Creighton, 483 U.S. 635, 638 (1987).
More specifically, the doctrine addresses the “concern that expansive civil liability for actions
taken while on duty may cause police officers to hesitate before acting – a situation that could
The cases provided by the defendants in their memorandum brief do not support the position that a successful
supervisory liability claim would invalidate an underlying criminal conviction, thereby running afoul of Heck.
produce unwelcome results.” Sanchez v. Swyden, 139 F.3d 464, 467-68 (5th Cir.1998) (citations
“The defendant official must initially plead his good faith and establish that he was acting
within the scope of his discretionary authority.” Salas v. Carpenter, 980 F.2d 299, 306 (5th
Cir.1992)(citations omitted). Once the defendant has done so, the burden shifts to the plaintiff to
rebut this defense by establishing that the official’s allegedly wrongful conduct violated clearly
established law.” Id. The plaintiff’s burden of negating the defendant’s qualified immunity defense
is a heavy one. See, e.g., Brown v. Lyford, 243 F.3d 185, 190, n. 7 (5th Cir. 2001). “Abrogation of
qualified immunity is properly the exception, not the rule.” Foster v. City of Lake Jackson, 28 F.3d
425, 428 (5th Cir. 1994) (citation omitted).
To determine whether a defendant is entitled to qualified immunity, a court must address
the following questions: “(1) whether the facts that the plaintiff has alleged make out a violation
of a constitutional right; and (2) whether the right at issue was clearly established at the time of
the defendant’s alleged misconduct.” Jennings v. Patton, 644 F.3d 297, 300 & n .3 (5th Cir. 2011)
(internal quotation marks and citation omitted).
The court must “consider whether the defendant’s actions were objectively unreasonable
in light of clearly established law at the time of the conduct in question.” Freeman v. Gore, 483
F.3d 404, 411 (5th Cir. 2007) (citation omitted). “To make this determination, the court applies an
objective standard based on the viewpoint of a reasonable official in light of the information then
available to the defendant and the law that was clearly established at the time of the defendant’s
actions.” Id. (citations omitted); see Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Moreover, “because qualified immunity turns only upon the objective reasonableness of the
defendant’s acts, a particular defendant’s subjective state of mind has no bearing on whether that
defendant is entitled to qualified immunity.” Thompson v. Upshur County, 245 F.3d 447, 457 (5th
Cir. 2001)(citation omitted).
A defendant’s conduct is “objectively reasonable unless all reasonable officials in the
defendant’s circumstances would have then known that the defendant’s conduct violated the
United States Constitution[.]” Id. That is, “[i]f officers of reasonable competence could disagree
as to whether the plaintiff’s rights were violated, the officer’s qualified immunity remains intact.”
Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005). The objective-reasonableness “standard
‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those
who knowingly violate the law.’” Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (quoting
Malley v. Briggs, 475 U.S. 335, 343 (1986)). This means that “even law enforcement officials who
reasonably but mistakenly commit a constitutional violation are entitled to immunity.” Glenn v.
City of Tyler, 242 F.3d 307, 312 -13 (5th Cir. 2001) (internal quotation marks and citation omitted).
A defendant’s “conduct is . . . not objectively reasonable if it violates a clearly established
right, because ‘a reasonably competent public official should know the law governing his
conduct.’” Guillory v. Thomas, 355 Fed. App’x 837, 840 (5th Cir. 2009) (quoting Harlow, 457
U.S. at 818-19). The law must be “clear in the more particularized sense that reasonable officials
should be ‘on notice that their conduct is unlawful.’” Id. (quoting Saucier, 533 U.S. 194, 206
“[T]here need not be commanding precedent that holds that the very action in question is
unlawful; the unlawfulness need only be readily apparent from relevant precedent in sufficiently
similar situations.” Brown v. Miller, 519 F.3d 231, 237 (5th Cir. 2008) (internal quotation marks
and citation omitted)). “The central concept is that of ‘fair warning’: The law can be clearly
established ‘despite notable factual distinctions between the precedents relied on and the cases
then before the Court, so long as the prior decisions gave reasonable warning that the conduct then
at issue violated constitutional rights.’” Kinney, 367 F.3d at 350 (quoting Hope v. Pelzer, 536 U.S.
730, 740 (2002)).
i. False Arrest
To prevail on a false arrest claim under Title 42 U.S.C. § 1983, Cooley must show that
Chief Bunch did not have probable cause to arrest him. Haggerty v. Texas Southern University,
391 F.3d 653, 655 (5th Cir. 2004). “Probable cause exists ‘when the totality of the facts and
circumstances within a police officer's knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was committing an offense.’
Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir.2001).” Id. at 655–56. “Even law enforcement
officials who reasonably but mistakenly conclude that probable cause is present are entitled to
immunity.” Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.2000).
The defendants assert that Sgt. West is not subject to liability on Cooley’s false arrest claim
because he did not make the decision to arrest Cooley. This court is not persuaded by the
defendants’ argument. Sgt. West participated in Cooley’s arrest. Sgt. West drew his Taser and
fired it at Cooley, thus disabling him and allowing Chief West to handcuff him. Sgt. West clearly
assisted in the arrest and, thus, this court must decide whether the aegis of qualified immunity
An independent judicial officer, Wayne County, Mississippi, Justice Court Judge Tobey
Bartee already has found that probable cause existed to arrest Cooley for both resisting arrest and
for disorderly conduct. Indeed, Judge Tobey found that Cooley was guilty beyond a reasonable
doubt of the crimes for which he was arrested. Chief Bunch and Sgt. West acted “objectively
reasonable” in effectuating Cooley’s arrest based on probable cause.
This court, therefore, is persuaded that both Chief Bunch and Sgt. West are entitled to
qualified immunity for Cooley’s claim of false arrest.
ii. Freedom of Speech
In order to prevail on his freedom of speech claim, Cooley would have to prove:
(1) [he was] engaged in constitutionally protected activity, (2) the defendants'
actions caused [him] to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity, and (3) the defendants' adverse
actions were substantially motivated against [Cooley’s] exercise of constitutionally
Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005). Additionally, “criminal prosecutions in
violation of the First Amendment are actionable only if a plaintiff can also prove the common-law
elements of malicious prosecution, including the absence of probable cause to prosecute. Keenan
v. Tejeda, 290 F.3d 252, 260 (5th Cir. 2002).12
This court, in Section IV(c)(i) supra, already has found that Chief Bunch and Sgt. West
had probable cause to arrest Cooley for resisting arrest and disorderly conduct. Accordingly, this
court finds that both Chief Bunch and Sgt. West are entitled to qualified immunity on Cooley’s
freedom of speech claims.
iii. Excessive Force
To succeed on his excessive force claim, Cooley must prove that: (1) he suffered an injury;
(2) resulting directly from a use of force that was clearly excessive; and (3) the excessiveness of
the force was clearly unreasonable. See Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007). This
court must examine Sgt. West’s use of the Taser on Cooley based on the objective reasonableness
See also Johnson v. Louisiana Dept. of Agriculture, 18 F.3d 318, 320 (5th Cir. 1994); Mozzochi v. Borden, 959 F.2d
1174, 1180 (2d Cir.1992) (“An individual does not have a right under the First Amendment to be free from a criminal
prosecution supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism of the
government.”); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001).
of the “on-scene perspective” of Sgt. West, and not with the benefit of hindsight. Saucier v. Katz,
533 U.S. 194 (2001).
“The calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham
v. Connor, 490 U.S. 386, 396–97 (1989). Courts pay “careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was]
actively resisting arrest or attempting to evade arrest by flight.” Gutierrez v. City of San Antonio,
139 F.3d 441, 447 (5th Cir. 1998).
In the lawsuit sub judice, taking the evidence in a light most favorable to Cooley, this court
finds the officers acted objectively reasonably. The court bases its decision on the following facts:
Cooley disobeyed a police officer’s lawful command; Cooley started running toward his business;
Cooley’s business contained several hundred firearms; Cooley had been disruptive and interfering
with a criminal investigation; and Cooley had made threatening statements and gestures to Sgt.
West and Chief Bunch.
This court is persuaded that Sgt. West and Chief Bunch are shielded by the doctrine of
qualified immunity from Cooley’s claim for excessive force.
iv. Malicious Prosecution
This court earlier discussed malicious prosecution in Section IV(b), supra. For the same
reasons, this court finds both Sgt. West and Chief Bunch are entitled to qualified immunity from
Cooley’s claim of malicious prosecution.
v. Supervisory Liability
As this court has discussed in Section VI(b)(5), supra, this court cannot discern where in
the complaint that Cooley has properly alleged a cause of action for supervisory liability.
Accordingly, this court finds that Cooley’s complaint does not assert a cause of action for such.
IT IS, THEREFORE, ORDERED that the Motion for Summary Judgment filed by
the individual defendants [Docket no. 68] be hereby GRANTED.
IT IS FURTHER ORDERED that the parties are ordered to contact the United States
Magistrate Judge for a scheduling conference for the remaining disputes of this lawsuit.
SO ORDERED AND ADJUDGED this the 19th day of September, 2017.
s/ HENRY T. WINGATE___________________
UNITED STATES DISTRICT COURT JUDGE
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