Washington v. University of Mississippi Medical Center et al

Filing 75

Memorandum Opinion and Order granting 63 MOTION for Summary Judgment. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 1/15/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
EDWARD WASHINGTON

PLAINTIFF

VS.

CIVIL ACTION NO. 3:11CV484TSL-MTP

THE UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER, UNIVERSITY OF
MISSISSIPPI MEDICAL CENTER CAMPUS
POLICE DEPARTMENT, GARRETT
BRADFORD, ALFREDO HERNANDEZ, and
JOHN DOES 1-3

DEFENDANTS

consolidated with
MARTEZ SAMUEL

PLAINTIFF

VS.

CIVIL ACTION NO. 3:11CV485HTW-LRA

THE UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER, UNIVERSITY OF
MISSISSIPPI MEDICAL CENTER CAMPUS
POLICE DEPARTMENT, GARRETT
BRADFORD, ALFREDO HERNANDEZ, and
JOHN DOES 1-3

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
University of Mississippi Medical Center (UMMC), University of
Mississippi Medical Center Campus Police Department, Garrett
Bradford and Alfredo Hernandez for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure.

Plaintiffs

Edward Washington and Martez Samuel have not responded to the
motion, and the deadline for responding has passed.1
1

The court,

At the time the motion was filed, plaintiffs were
represented by counsel. While the motion was pending, plaintiffs’
counsel sought and were granted leave to withdraw. Plaintiffs
were given reasonable time to find new counsel, failing which they

having considered defendants’ memoranda of authorities, together
with attachments, concludes their motion is well taken and should
be granted.
Plaintiffs brought their complaints2 under 42 U.S.C. § 1983
alleging that individual defendants Bradford and Hernandez, in the
course and scope of their employment as security officers with the
University of Mississippi Medical Center Police Department
(UMMCPD), used excessive force against plaintiffs in violation of
plaintiff’s rights under the Fourth, Fifth, Fourteenth and Eighth
Amendments, and further alleging claims against defendants under
the Mississippi Tort Claims Act (MTCA), Miss. Code. Ann. §
11-46-1, et seq., for negligence, negligent infliction of
emotional distress, intentional infliction of emotional distress,
gross negligence and assault and battery.

Plaintiffs’ claims

relate to an incident that occurred in the UMMC Medical Intensive
Care Unit (MICU) on October 31, 2010.

The incident is described

in detail in the deposition testimony of defendants Bradford and
Hernandez and the affidavits of Larry Iles, Chief of Police for
the UMMCPD, Kristina Vaughn, M.D., Sergeant Bo Webb with the

would be considered to be proceeding pro se. Plaintiffs were
advised of the deadline for responding to defendants’ summary
judgment motion and informed that should they fail to respond, the
court could rule on their motion without their response.
2

Plaintiffs originally filed separate actions in state
court. Following removal of both cases to this court, the cases
were consolidated.
2

UMMCPD, and Officers Josetta Moore and Catlin May of the UMMCPD.
On that Sunday evening, Mrs. Edward Washington, wife of plaintiff
Edward Washington and mother of plaintiff Martez Samuel, passed
away while a patient in UMMC’s MICU.

Upon her passing, Dr.

Vaughan and a Dr. Faught met with family members in the MICU
conference room.

Once Dr. Vaughn informed the family of Mrs.

Edwards’ death, her two sons (one of whom was Samuel) became
irate.

According to Dr. Vaughn, the taller son picked up the

conference table and flipped it.

The shorter son then charged at

Dr. Vaughn, and pounded a filing cabinet as Dr. Vaughn fled the
room.

As she ran from the room, Dr. Vaughn yelled for the nurses

to call a “Code White”, a priority call to UMMCPD that means there
is a significant disturbance involving a patient or a patient’s
family members.

Dr. Vaughn then hid in a comatose patient’s room

until the police arrived.
Officer Josetta Moore was the first to respond to the call,
followed by Officers Bradford and Hernandez.

Upon her arrival at

MICU, a nurse informed Officer Moore of the disturbance in the
conference room.

In the meantime, some of the family members had

moved into the hallway, and as reflected by the officers
affidavit, one of them, Samuel, began loudly screaming
profanities, causing a disturbance.

According to the officers’

affidavits, Officer Bradford asked Samuel to calm down, and when
he did not, Bradford moved him away from the rest of the crowd,
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sat him in a chair and again tried to get him to calm down,
telling him he would have to leave the hospital if he did not calm
down.

The officers state that Samuel cursed Bradford and head-

butted him; Samuel denies this.
Edward Washington, the decedent’s husband, testified that
about that time, he left his wife’s MICU room and approached
Bradford, who had his son Samuel restrained in a chair.
Washington claims that when he knelt down by them to try to find
out what was going on, Bradford struck him.

However, Bradford and

the other officers have testified that when Bradford attempted to
restrain Samuel after Samuel head-butted him, Washington rushed in
and grabbed, pushed or struck Bradford.

The other officers went

to assist, but were rushed by other members of the family.

During

what one officer described as the ensuing “rumble” between the
officers and the Washington family, both Bradford and Hernandez
drew their weapons and told the family members to back away.
Bradford explained in his testimony that during the melee, he was
struck more than once, and he himself began swinging, trying to
defend himself.

He states that he drew his weapon after he felt

someone tugging at his gun, attempting to remove it from the
holster.

Once Hernandez and Bradford had reholstered their guns

and order had been restored, the officers took Samuel and
Washington into custody for their assault on Bradford.

4

Washington and Samuel allege in this action that the officers
used excessive force against them in violation of their Fourth,
Fifth, Eighth and Fourteenth Amendment rights, for which each
seeks compensatory damages of $500,000 and punitive damages of
$1,000,000.

In their motion, defendants argue that plaintiffs’

§ 1983 claims against UMMC, UMMCPD and the officers in their
official capacities fail as a matter of law because UMMC is an arm
of the state, and a State is not a “person” within the meaning of
§ 1983.3

See Mawson v. Univ. of Miss Med. Ctr., Civil Action No.

3:11cv574–DPJ–FKB, 2012 WL 6649323, 2 (S.D. Miss. Dec. 20, 2012)
(“UMMC, as an arm of the state, is not a ‘person’ within the
meaning of 42 U.S.C. § 1983, and therefore is not a proper
defendant in a § 1983 suit.”) (citations omitted); McGarry v.
Univ. of Miss. Med. Ctr., 355 F. App'x 853, 856 (5th Cir. 2009)
(UMMC is an arm of the University of Mississippi, a state agency);
Will v. Michigan Dep't of State Police, 491 U.S. 58, 68–70, 109 S.
Ct. 2304, 105 L. Ed. 2d 45 (1989) (states and state officials sued
in their official capacities are not deemed “persons” subject to
suit within the meaning of § 1983); Hafer v. Melo, 502 U.S. 21,
3

Although plaintiffs purport to have sued not only UMMC
but the UMMC Police Department, a university police department is
not considered an entity separate from its university. Thomas v.
Univ. of Central Ark. Police Dept., No. 4:09CV00902BSM/HLJ, 2010
WL 1643278, 1 (E.D. Apr. 22, 2010); Williams v. Univ. of Ill., 945
F. Supp. 163 (N.D. Ill 1996) (holding that university police
department did not enjoy a separate legal existence independent of
the public university and hence was not a suable entity pursuant
to § 1983).
5

27, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) (“[s]tate officers
sued for damages in their official capacity are not ‘persons' for
purposes of the [§ 1983] suit because they assume the identity of
the government that employs them”).

Defendants are correct and

therefore, plaintiffs’ federal claims against these defendants
will be dismissed.
Officers Bradford and Hernandez have moved for summary
judgment as to plaintiffs’ § 1983 claim against them in their
individual capacities, based both on qualified immunity grounds
and on the merits.

Their motion will be granted.

Since plaintiffs’ claim in this cause relates to an alleged
use of excessive force that occurred while plaintiffs were free
citizens, their claim is properly analyzed under the Fourth
Amendment, and therefore they do not state a claim for violation
of the Fifth, Eighth or Fourteenth Amendments.

See Graham v.

Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989) (holding that “all claims that law enforcement officers
have used excessive force ... in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’
standard....”).

Regarding a Fourth Amendment excessive force

claim, the Fifth Circuit has held that “it is clearly established
... that in order to state a claim for excessive force in
violation of the Constitution, a plaintiff must allege (1) an
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injury, which (2) resulted directly and only from the use of force
that was clearly excessive to the need; and the excessiveness of
which was (3) objectively unreasonable.”

Ikerd v. Blair, 101 F.3d

430, 433–34 (5th Cir. 1996) (internal quotation marks, citation,
and footnotes omitted); Bazan ex rel. Bazan v. Hidalgo County, 246
F.3d 481, 487-488 (5th Cir. 2001) (quoting Ikerd).
Defendants note in their motion that although plaintiffs have
named Officer Hernandez as a defendant and have alleged that he
used excessive force against them, it is established by the
undisputed evidence that the only arguable “force” he used was
drawing his weapon.

In the court’s opinion, his use of such force

was objectively reasonable under the circumstances established by
the undisputed evidence.

Accordingly, plaintiffs’ § 1983 claim

against Hernandez in his individual capacity will be dismissed.
For his part, Officer Bradford maintains that his actions
were also objectively reasonably as a matter of law, and that in
any event, plaintiffs cannot prevail as neither has any proof that
he suffered any injury as a result of any alleged excessive force.
In his complaint, Samuel alleged that Officer Bradford “shoved him
onto a bench and yelled at him to be quiet,” that two officers
“began to berate and then physically assault and beat [him] [and]
placed him in handcuffs.”

The record includes testimony from

Samuel in which he states that Bradford physically moved him away
from the rest of his family and “pushed” or “shoved” him into a
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seat and yelled at him that he needed to be quiet.
not deny this.

Bradford does

However, there is no record evidence to support

Samuel’s allegation that Bradford otherwise physically assaulted
or beat him.

The court concludes that Bradford’s use of force was

objectively reasonable under the circumstances.

There is ample

evidence of a disturbance in the MICU, in which Samuel was a
central figure.

The evidence establishes without dispute that

Samuel was agitated and became disruptive following his mother’s
death; Bradford’s actions were merely intended to get Samuel to
calm down.

They were objectively reasonable under the

circumstances and as a matter of law, based on the undisputed
facts, did not amount to excessive force.

Accordingly, Samuel’s

§ 1983 claim against Bradford will be dismissed.
Plaintiff Washington has claimed that while he was talking to
Bradford and trying to figure out why Bradford had his son
restrained in a chair, Bradford hit him.
that he hit Bradford first.

Washington has denied

While that may be true, the officers

present testified that when Washington first approached Bradford,
he either grabbed, pushed or shoved Bradford.

Additionally,

Bradford testified that Washington “had his hand back like he was
fixing to punch me.”
defend himself.

Bradford maintained that he acted only to

Bradford submits, and the court agrees, that as a

matter of law, based on this uncontroverted evidence, his actions
were objectively reasonable.
8

Bradford notes further that Washington has presented no
evidence to establish that he suffered any injury, or any more
than a de minimis injury, from this encounter.

The injury

necessary to support an excessive force claim “must be more than a
de minimis injury and must be evaluated in the context in which
the force was deployed.”

Glenn v. City of Tyler, 242 F.3d 307,

314 (5th Cir. 2001) (citing Williams v. Bramer, 180 F.3d 699, 703
(5th Cir. 1999)).

Here, Washington has offered no proof that he

suffered even a de minimis injury.

There is evidence in the

record that Washington presented to a hospital emergency room
complaining of a headache three days after the alleged incident.
However, there is nothing in the medical records (or otherwise) to
indicate that his headache was causally connected to any actions
by Bradford.

On the contrary, the report from his emergency room

visit recites that there was no visible sign of injury and that
the “exam shows your headache does not have any specific cause.”
For these reasons, Washington’s § 1983 claim against Bradford in
his individual capacity will be dismissed.
The MTCA is the exclusive civil remedy against a governmental
entity or its employees for any state law tort claims.
Code Ann. § 11–46–7(1).4

See Miss.

“Although the MTCA waives sovereign

4

Mississippi Code Annotated § 11–46–7(1) provides:
The remedy provided by this chapter against a
governmental entity or its employee is exclusive of any
other civil action or civil proceeding by reason of the
same subject matter against the governmental entity or
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immunity for tort actions, it also prescribes exemptions from this
statutory waiver under which a governmental entity retains its
sovereign immunity.”

Miss. Dep't of Pub. Safety v. Durn, 861 So.

2d 990, 994 (Miss. 2003).

For example, it provides:

(1) A governmental entity and its employees acting
within the course and scope of their employment or
duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of
a governmental entity engaged in the performance or
execution of duties or activities relating to police or
fire protection unless the employee acted in reckless
disregard of the safety and well-being of any person not
engaged in criminal activity at the time of injury....
Miss. Code Ann. § 11–46–99(1)(c).

Defendants submit that

plaintiffs were in violation of three state laws at the time of
the incident in the MICU, and specifically Miss. Code Ann.
§ 97-35-3 (disorderly conduct), § 97-35-7 (failure to follow the
lawful commands of a law enforcement officer), and § 97-35-13
(disturbance in a public place).

However, they further submit

that even if the court were to find, or to assume for present
purposes, that plaintiffs were not, in fact, engaged in criminal
activity at the time of the subject incident, defendants still
cannot be liable because the evidence does not show that Bradford
its employee or the estate of the employee for the act
or omission which gave rise to the claim or suit; and
any claim made or suit filed against a governmental
entity or its employee to recover damages for any injury
for which immunity has been waived under this chapter
shall be brought only under the provisions of this
chapter, notwithstanding the provisions of any other law
to the contrary.
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and/or Hernandez acted in reckless disregard of plaintiffs’ safety
and well-being.
As used in this statute, “reckless disregard” has been
described by the Mississippi Supreme Court as “more than
ordinary negligence, but less than an intentional act.”
City of Jackson v. Brister, 838 So. 2d 274, 280 (Miss.
2003); see also Titus v. Williams, 844 So. 2d 459, 468
(Miss. 2003) (stating that reckless disregard
encompasses “willful and wanton” actions). To meet this
standard, the officer's conduct must “evince [] not only
some appreciation of the unreasonable risk involved, but
also a deliberate disregard of that risk and the high
probability of harm involved.” Maldonado v. Kelly, 768
So. 2d 906, 910–11 (Miss. 2000). The Mississippi
Supreme Court has further defined reckless disregard as
a “conscious indifference to consequences, amounting
almost to a willingness that harm should follow.”
Titus, 844 So. 2d at 468 (internal quotation marks
omitted). To avoid summary judgment, a plaintiff must
create a genuine issue of material fact that the
officers “took action that they knew would result or
intended to result” in injury. Id.
Harris v. Payne, 254 Fed. Appx. 410, 421, 2007 WL 4105170, 11 (5th
Cir. 2007).

Based on the undisputed facts of record, it is clear

the conduct of Bradford and Hernandez does not rise to the level
of “reckless disregard.”

Therefore, defendants are immune from

liability for any state tort claims.5
Based on all of the foregoing, defendants are entitled to
summary judgment as to all of plaintiffs’ claims and it is
therefore ordered that defendants’ motion for summary judgment is
granted.
5

Defendants have asserted several other exemptions from
the MTCA’s waiver of immunity. However, since the police
protection exemption is clearly applicable, the court need not
consider their further arguments on these issues.
11

A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 15th day of January, 2013.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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