Moore v. City of Jackson, Mississippi et al

Filing 20

ORDER granting 2 Motion for disqualification of counsel. Signed by Magistrate Judge F. Keith Ball on 10/12/11 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
SLADE MOORE

PLAINTIFF

vs.

CIVIL ACTION NO. 3:10cv454-DPJ-FKB

CITY OF JACKSON, MISSISSIPPI

DEFENDANT
ORDER

Slade Moore is a former Jackson police officer. He brought this action against the
City of Jackson (the City) pursuant to § 1983 alleging that the Jackson Police Department
discriminated and retaliated against him because of his race (white) by changing his work
assignment and ultimately terminating his employment. Presently before the Court is
Plaintiff’s motion to disqualify defense counsel, attorneys with the Office of the City
Attorney of Jackson, because of that office’s alleged prior representation of Moore in an
excessive force suit.
In this circuit, a party seeking to disqualify opposing counsel “must establish two
elements: (1) an actual attorney-client relationship between the moving party and the
attorney he seeks to disqualify and (2) a substantial relationship between the subject
matter of the former and present representations.” In re American Airlines, Inc., 972 F.2d
605, 614 (5th Cir. 1992). If these elements are established, an irrebuttable presumption
arises that confidential information was disclosed during the prior representation. Id. In
the case sub judice, the former representation, as alleged by Plaintiff, involved an action
in this court, Vivian Nichols, et al. v. City of Jackson, et al., civil action no. 3:06cv364HTW-LRA. Nichols was a wrongful arrest and excessive force suit brought pursuant to §

1983 against the City and several police officers, including Moore. The action was filed
while Moore was still employed by the City; however, during its pendency, Moore was
terminated by the City.
The City opposes the motion by arguing that neither prong of the substantial
relationship test has been met. First, the City contends that there was never any actual
attorney-client relationship between the City Attorney and Moore because Moore was
sued only in his official capacity in the Nichols action, and therefore he was never
represented personally or individually by the City Attorney. The City states that although
Moore’s name was on the pleadings it filed in defense of the action, the City Attorney
never met with him or spoke with him because he refused to come into the City Attorney’s
office for an interview or cooperate in the defense of the action. The City also points out
that Moore was terminated during the pendency of the Nichols action. According to the
City, Moore was terminated because the Mississippi Court of Appeals affirmed a
judgment against the City in another excessive force action involving Moore, City of
Jackson v. Calcote, 910 So. 2d 1105 (Miss. Ct. App. 2005).
The amended complaint filed in the Nichols action did not set forth explicitly the
capacity in which the individual defendants, including Moore, were sued. When a
complaint is not clear as to the capacity in which an individual is sued, courts in this circuit
look to the substance of the claims, the relief sought, and the course of the proceedings.
Senu-Oke v. Jackson State Univ., 521 F.Supp.2d 551, 556 (S.D. Miss. 2007); see also
United States ex rel. Adrian v. Regents of Univ. of Ca., 363 F.3d 398, 402-03 (5th Cir.
2004) (finding course of proceedings indicated defendant was sued solely in his official

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capacity because the plaintiff never challenged defendant’s assertion in his motion to
dismiss that he was sued in his official capacity). The course of the proceedings in the
Nichols case leaves little doubt that Moore was sued in his individual capacity. First of all,
suing Moore in his official capacity in an action in which the City was a defendant would
have been meaningless and redundant, since an official capacity suit is merely a suit
against the governmental entity. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989). Furthermore, the fact that the complaint sought damages from Moore
individually indicates that he was sued in his individual capacity, as he would not be liable
for damages in an official-capacity suit. The complaint also sought punitive damages,
which would not have been recoverable from the City or from official-capacity defendants.
It is also clear that the City viewed the suit as one against Moore and the other officials in
their individual capacities, as they filed a motion to dismiss asserting the defense of
qualified immunity on behalf of Moore and the other officers--a defense that would have
no application to official-capacity claims. It follows that if the plaintiffs in Nichols were
asserting claims against Moore in his individual capacity, the City Attorney was
representing Moore individually and personally. The Court concludes that an actual
attorney-client relationship existed between Moore and the City Attorney in the Nichols
proceeding.
The Court further finds that there is a substantial relationship between the Nichols
action and the present one. Defendant argues that nothing in the Nichols action
pertained to racial discrimination, the alleged basis of the present suit. The City misses
the point entirely. One of the primary, if not the primary issue, in the present case is the

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reason for Moore’s termination. The City has stated that one of the reasons for Moore’s
termination was the outcome in the Calcote, another excessive force suit involving Moore.
There is little doubt that the City will also rely upon the incident which underlay the Nichols
action as an additional reason. The Fifth Circuit has stated that all is required for a
finding of substantial relationship is that the previous action “be akin to the present action
in a way reasonable persons would understand as important to the issues involved.” In re
American Airlines, 972 F.2d at 623 (quoting In re Corrugated Container Antitrust
Litigation, 659 F.2d 1341, 1356 (5th Cir. 1981)). A reasonable person would understand
that Moore’s involvement in an episode of excessive force or false arrest would be
important to the issues in the present case. The Court concludes that the second prong
of the substantial relationship test has been satisfied.
Plaintiff has established the necessary elements for disqualification of the Office of
the City Attorney as counsel for Defendant. Accordingly, the motion is hereby granted.
Defendant is directed to retain outside counsel within thirty days.
SO ORDERED this the 12th day of October, 2011.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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