Whitfield v. City of Ridgeland et al
Memorandum Opinion and Order granting in part, denying in part 136 MOTION for Summary Judgment filed by defendants; finding as moot 147 MOTION to Strike; denying 139 Motion for Summary Judgment filed by plaintiff; finding as moot 135 MOTION for Leave to File Excess Pages in Memorandum in Support of Motion for Summary Judgment. Signed by District Judge Tom S. Lee on 12/17/13 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CHARLES DWIGHT WHITFIELD
CIVIL ACTION NO. 3:11CV744TSL-JMR
CITY OF RIDGELAND, AND
DANIEL SOTO, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITY
MEMORANDUM OPINION AND ORDER
This cause is before the court on cross-motions of plaintiff
Charles Dwight Whitfield and of defendants City of Ridgeland and
Daniel Soto, in his official and individual capacities,1 for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil
These motions have been fully briefed and the court,
having considered the memoranda of authorities, together with
attachments submitted by the parties, concludes that plaintiff’s
motion should be denied; that the City of Ridgeland’s motion
should be granted; and that Daniel Soto’s motion in his individual
capacity should be granted in part and denied in part.
In addition to naming the City, plaintiff’s complaint
names the Ridgeland Police Department as a defendant. However, as
defendants note, a police department simply is a department within
a city and cannot be sued separately. See Darby v. Pasadena
Police Dept., 939 F.2d 311, 314 (5th Cir. 1991).
Moreover, the official capacity claim against Soto is the
same as a claim against the City itself. See Will v. Michigan
Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d
45 (1989)(“a suit against a state official in his or her official
capacity ... is no different from a suit against the [government
entity] itself”). Accordingly, references herein to the City
include Soto in his official capacity.
This case arises from plaintiff Whitfield’s arrest by then
Police Officer Daniel Soto on December 7, 2008 in the City of
Ridgeland, Mississippi and his subsequent prosecution by the City
According to the allegations of Whitfield’s
complaint, around 2:35 a.m., Officer Soto, using the pretext of
speeding, stopped plaintiff’s vehicle.
Plaintiff maintains he was
not speeding, and that Soto’s assertion that he was traveling 55
miles per hour in a 40 mile-per-hour zone, was false.
alleges that in light of that false assertion, he chose to
exercise his right to remain silent and refused the officer’s
request that he submit to a breathalyzer or a field sobriety test,
and was immediately arrested for driving under the influence and
He was transported to the police station, where he was
booked for speeding, failing to produce proof of insurance and
driving under the influence.
He bonded out of jail later than
Based on plaintiff’s refusal to submit to a breathalyzer test
after being arrested, his driver’s license was automatically
suspended for ninety days pursuant to Mississippi’s Implied
Consent Law, Miss. Code Ann. § 63-11-5(1).
On April 14, 2009,
plaintiff was tried and convicted in municipal court of DUI first
Plaintiff appealed his conviction to the County
Court of Madison County, where he was tried de novo on September
14, 2009 and again convicted of the charges.
that Officer Soto falsely testified at both trials that there was
no video evidence of the stop and arrest.2
However, following the
second trial, plaintiff moved for a new trial and in conjunction
with the motion, on January 26, 2009, served a subpoena on
Ridgeland Police Chief Jimmy Houston for any and all video
relating to plaintiff’s arrest.
The police department’s evidence
officer, Greg Phillips, responded to the subpoena that same day
There is no transcript of the municipal court
proceedings as the City of Ridgeland municipal court is not a
court of record. Plaintiff has submitted in support of his motion
an affidavit of Chuck McRae, who represents him in this case and
who also represented him in the subject criminal proceedings. In
his affidavit, Mr. McRae purports to describe Soto’s testimony in
municipal court, as well as in county court, which is a court of
Mr. McRae relates in his affidavit that Officer Soto
testified in plaintiff’s municipal court trial that there was no
video evidence of the traffic stop, and that Soto testified in
county court “exactly as he had previously.” However, the record
from county court shows that Soto did not testify in county court
that there was no video evidence of the stop. Instead, Soto
maintained that he did not know whether there was video evidence
of the stop. Mr. McRae’s affidavit thus cannot be correct, for if
Soto testified in municipal court exactly as he did in county
court, then his testimony was not that there was no video evidence
but that he did not know whether there was video evidence of the
stop. Thus, even if Mr. McRae’s affidavit were material on this
issue – and in the court’s opinion, it is not, see infra at p. 23
– it would be unhelpful based on its obvious internal
Defendants have moved to strike the McRae affidavit,
contending that it is, in whole or in part, (1) not based on
personal knowledge; (2) contains hearsay; (3) violates the best
evidence rule; (4) contains improper lay opinions; and (5)
contains improper legal argument. Even if the court were to
consider the affidavit in evaluating plaintiff’s motion, it would
still conclude that plaintiff was not entitled to summary
judgment. Accordingly, while there may be merit to some or all of
defendants’ arguments regarding the affidavit, the motion to
strike will be denied as moot.
and produced to plaintiff’s counsel a copy of the video from the
night of plaintiff’s arrest.
Officer Soto’s testimony.
That video contradicted, in part,
The prosecutor, Boty McDonald, after
learning that a video of the arrest existed, did not oppose
plaintiff’s request that the county court dismiss plaintiff’s
speeding and DUI cases, and the charges against plaintiff were
Plaintiff thereafter filed the present action against the
City of Ridgeland and Officer Soto, in his official and individual
capacities, and against the State of Mississippi, Mississippi
Department of Public Safety, Mississippi Highway Patrol and
Commissioner Santa Cruz, in his official capacity, asserting
putative claims under 42 U.S.C. § 1983 for violation of his rights
under the “Fourth, Fifth, Sixth, Eighth and Fourteenth
By memorandum opinion and order entered May 12,
2012, the court dismissed the State defendants, leaving as
defendants the City of Ridgeland and Officer Soto, in his official
and individual capacities.
The parties have now filed cross-
motions for summary judgment.
Defendants argue in their motion that all plaintiff’s claims
against them are due to be dismissed, as the undisputed facts
established by the record evidence do not demonstrate a
As a result of this, and another incident involving his
falsification of an incident report, Soto was given the
opportunity to resign or be terminated. He resigned.
The City and Officer Soto in his
official capacity further argue that even if plaintiff could
create a genuine issue of material fact as to the occurrence of a
constitutional violation, he still could not prevail against them
since he has no evidence that any such violation resulted from an
official policy or custom of the City.
Finally, Soto maintains
that even if plaintiff could prove a constitutional violation,
summary judgment is in order on the claims against him in his
individual capacity on the basis of qualified immunity.
The Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
U.S. Const. amend. IV.
Plaintiff has asserted a claim for illegal arrest and detention in
violation of the Fourth Amendment.
“Traffic stops are seizures
within the meaning of the Fourth Amendment.”
United States v.
Luckey, 402 Fed. Appx. 889 (5th Cir. 2010) (citing United States v.
Grant, 349 F.3d 192, 196 (5th Cir. 2003)).
In United States v.
Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc), the Fifth Circuit
observed that “[t]his court, following the Supreme Court, has
treated routine traffic stops, whether justified by probable cause
or a reasonable suspicion of a violation, as Terry stops[,]”
referring, of course, to standards established by the Supreme
Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
Brigham, 382 F.3d at 506 (citing Berkemer v. McCarty,
468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984);
Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 54 L. Ed.
2d 331 (1977) (per curiam); and United States v. Dortch, 199 F.3d
193, 198 (5th Cir. 1999)).
“Pursuant to Terry, the legality of
police investigatory stops is tested in two parts.
examine whether the officer's action was justified at its
inception, and then inquire whether the officer's subsequent
actions were reasonably related in scope to the circumstances that
justified the stop.”
Id. at 506-07 (citing Terry, 392 U.S. at
19–20, 88 S. Ct. at 1879).
the stop are irrelevant.
The officer's subjective motives for
United States v. Benavides, 291 Fed.
Appx. 603, 607 (5th Cir. 2008) (citing United States v.
Sanchez–Pena, 336 F.3d 431, 436–37 (5th Cir. 2003)).
Defendants assert that Officer Soto had probable cause for
the initial stop of plaintiff’s vehicle because the radar in
Soto’s patrol vehicle indicated that plaintiff was traveling 55
miles per hour in a 40 mile-per-hour-zone.
Plaintiff denies that
he was speeding and maintains that he was stopped at a traffic
light when the officer’s vehicle approached him from the opposite
He insists that Officer Soto could not possibly have
clocked him at 55 miles per hour since his vehicle was not even
moving when Officer Soto first encountered him.
video of the stop, which has been offered by defendants as an
exhibit, clearly contradicts plaintiff’s version of these facts.
The video shows that the officer’s vehicle was traveling north on
Old Canton Road and passed through the traffic light at Williams
Boulevard just as the light was turning from green to yellow.
the patrol vehicle passed under the light, plaintiff’s vehicle
came into view, approaching the traffic light from the opposite
The video shows that Officer Soto made a U-turn after
passing plaintiff’s moving vehicle and that he pulled up behind
plaintiff as plaintiff was coming to a stop at the traffic light.
Contrary to plaintiff’s testimony, the video proves that when
Officer Soto drove past plaintiff, plaintiff’s car was moving and
that as plaintiff came to a stop at the red light, Officer Soto
was behind him with his lights activated.
contention that the officer could only have clocked him at “0"
since he was at a complete stop is flatly contradicted by the
See Scott v. Harris, 550 U.S. 372, 380-381, 127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007) (describing the
plaintiff’s version of events as “visible fiction” and “utterly
discredited” by facts depicted in videotape and holding that when
one party’s story “is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment”); Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011) (stating that “[a]lthough we review evidence in
the light most favorable to the nonmoving party, we assign greater
weight, even at the summary judgment stage, to the facts evident
from video recordings taken at the scene”).
Although the video proves that plaintiff’s vehicle was moving
when Officer Soto first encountered it, it is impossible to
discern from the video the speed at which the vehicle was moving.
In his testimony, plaintiff maintained he was not speeding,
explaining that it is his practice to drive at or near the posted
speed limit in Ridgeland.
Yet plaintiff admitted he did not know
how fast he was going as he approached Williams Boulevard; he
could only “guess” that it was “probably forty.”
In the court’s
opinion, in the face of the officer’s testimony that his radar
registered that plaintiff’s vehicle was traveling at 55 miles per
hour, plaintiff’s guess is clearly insufficient to create a
genuine issue for trial on the issue of whether plaintiff was
speeding and the stop thus justified.
establishes that the officer had probable cause to stop plaintiff
Accordingly, plaintiff has no viable claim for
violation of the Fourth Amendment based on the initial stop.
United States v. Benavides, 291 Fed. Appx. 603, 606-607 (5th Cir.
2008) (recognizing that “[p]olice officers may stop an automobile
when there is probable cause to believe that a traffic violation
has occurred, even if the stop is otherwise pretextual”).4
Irrespective of whether the initial stop was justified,
plaintiff maintains there was no probable cause for his subsequent
arrest and detention for driving under the influence.
Since defendants’ evidence establishes that plaintiff
was speeding and that there was thus probable cause for the stop
and hence no Fourth Amendment violation, the court is not required
to reach Soto’s alternative claim that he is entitled to qualified
immunity as to this claim. See Ramirez v. Martinez, 716 F.3d 369,
375-76 (5th Cir. 2013). It is clear, though, that qualified
“The doctrine of qualified immunity protects public 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.” Brown v. Strain, 663
F.3d 245, 249 (5th Cir. 2011) (internal quotation marks omitted).
To determine whether a public official is entitled to qualified
immunity, the court must decide “(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.” Id. (internal
quotation marks omitted) (citing Pearson v. Callahan, 555 U.S.
223, 230–33, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)). A right
is clearly established when “it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Jones v. Lowndes Cnty., Miss., 678 F.3d 344, 351
(5th Cir. 2012) (citation omitted). Once a defendant has raised
qualified immunity, the burden shifts to the plaintiff to
demonstrate that qualified immunity does not apply. Id. If an
officer reasonably but mistakenly believes that probable cause
exists, he is entitled to qualified immunity. Club Retro, LLC v.
Hilton, 568 F.3d 181, 206 (5th Cir. 2009).
As to Soto’s claim of qualified immunity, the burden is on
plaintiff to prove the absence of probable cause. As plaintiff
admittedly does not know at what rate of speed he was traveling
when encountered by Officer Soto and could only “guess” that he
was going the speed limit, he has not come forward with sufficient
proof to create a genuine issue for trial on Soto’s claim of
qualified immunity with respect to this alleged Fourth Amendment
to be an “‘open question in the Fifth Circuit of whether and to
what extent the strictures of Terry ... apply to probable cause
traffic stops for arrestable offenses....’”
Lockett v. New
Orleans City, 607 F.3d 992, 1000-01 (5th Cir. 2010) (quoting lower
court opinion and finding it unnecessary to address the issue);
Brigham, 382 F.3d at 506 n.4 (finding it “important to note that
at least one of our sister circuits has recently suggested that
different constitutional standards may apply to stops based on
probable cause”); Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104
S. Ct. 3138, 3150 n.29, 82 L. Ed. 2d 317 (1984) (“We of course do
not suggest that a traffic stop supported by probable cause may
not exceed the bounds set by the Fourth Amendment on the scope of
a Terry stop.”).
“Whether an arrest is illegal ... hinges on the absence of
probable cause” and as such, there is no cause of action for false
arrest under § 1983 unless the arresting officer lacked probable
Sorenson v. Ferrie, 134 F.3d. 325 328 (5th Cir. 1998).
The same probable cause requirement exists for a claim of false
Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001).
In order to make a lawful arrest, an officer must have probable
cause to believe the suspect committed a crime.
exists when the totality of 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.”
Flores v. City of Palacios, 381
F.3d 391, 402 (5th Cir. 2004).
Officer Soto claimed in his arrest report and in plaintiff’s
trials in municipal and county court that upon plaintiff’s exiting
the vehicle after being stopped, Soto observed plaintiff to be
very unsteady on his feet and observed him to stumble backwards
and almost trip on a curb in a parking lot.5
Soto further claimed
that plaintiff was argumentative, his speech was heavily slurred,
his pupils were dilated, and he reeked of an intoxicating liquor
on his person and his breath.
Soto requested plaintiff to submit
to a breath analysis, but plaintiff refused, and he further
refused to submit to a field sobriety test, leaving the officer
with no alternative but to arrest plaintiff and transport him to
For his part, plaintiff notes the video of the stop belies
Soto’s claim that plaintiff was unsteady on his feet or tripped on
In fact, Soto admitted in his deposition that after
reviewing the video, he realized that his testimony that plaintiff
was unsteady and that he stumbled or tripped was inconsistent with
the video and was “a mistake” on his part.
Soto has continued to
maintain that plaintiff’s speech was slurred, that his eyes were
Although there is no record of the municipal court
trial, there appears to be no dispute as to the substance of
Officer Soto’s testimony regarding what he claimed to have
observed of plaintiff’s condition and demeanor at the time of the
bloodshot, dilated and glassy, and that his clothing and breath
smelled strongly of alcohol.
Plaintiff, on the other hand, has
consistently denied that he had consumed any alcohol on the
night/morning in question; and while he admits that his clothing
smelled of alcohol since his date spilled a drink on him (a fact
which he explained to Officer Soto at the time of the stop), he
has consistently denied all of Soto’s other allegations regarding
his alleged condition/demeanor at the time of the stop.
Neither party’s version of these facts is confirmed or
refuted by the video, based on the court’s review of the video.
And in the court’s view, the evidence presented by plaintiff might
be sufficient to create a genuine issue of material fact as to
whether there was probable cause for his arrest for driving under
However, the evidence establishes that there was
probable cause to arrest plaintiff for speeding, and consequently,
there was no Fourth Amendment violation.
In this regard, the Fifth Circuit has explained as follows:
Claims for false arrest focus on the validity of the
arrest, not on the validity of each individual charge
made during the course of the arrest. Wells v. Bonner,
45 F.3d 90, 95 (5th Cir. 1995). Thus, we have found
that “[i]f there was probable cause for any of the
charges made ... then the arrest was supported by
probable cause, and the claim for false arrest fails.”
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001).
In Price, the
plaintiff was arrested both for arson and for driving a vehicle
without license tags.
He was charged with and found guilty of
driving a vehicle without license tags and did not contest that
However, he asserted a claim for false arrest based
on his arrest for arson.
The court rejected this claim, stating,
Although [the plaintiff] insists that driving a vehicle
without license tags was a minor offense that only
resulted in a small fine, and was unrelated to the
arrest for arson, [the officer] was entitled to arrest
[the plaintiff] for the misdemeanor. Mississippi law
expressly authorizes “[a]ny sheriff, deputy sheriff or
municipal law enforcement officer ... to arrest, without
warrant, any person operating, or causing to be
operated, any motor vehicle contrary to the provisions
of this article [requiring license tag and decal],
within the limits of their respective jurisdiction.”
Miss. Code. Ann. § 27-19-133. The statute allows up to
thirty days imprisonment for a violation. Miss. Code
Ann. § 27-19-131.
The court continued, observing,
It does not help the plaintiff's argument that the
Supreme Court recently found that warrantless arrests
for misdemeanor violations committed in the presence of
the officer do not violate the Fourth Amendment.
Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct.
1536, 149 L. Ed. 2d 549 (2001) (finding an arrest for
the failure to wear a seatbelt constitutional and
holding that “an officer [who] has probable cause to
believe that an individual has committed even a very
minor criminal offense in his presence, ... may, without
violating the Fourth Amendment, arrest the offender.”).
Thus, [the officer] did not violate the Fourth Amendment
by arresting [the plaintiff] on the misdemeanor charge.
Id at 369-70.
The court in Price concluded that because the
officer had probable cause to believe the plaintiff was driving a
vehicle without license tags, the officer did not violate the
plaintiff’s constitutional right to be free from arrest without
probable cause, and the officer was thus entitled to qualified
immunity on the plaintiff’s claim for false arrest.
Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)
(stating that “[e]ven if there was not probable cause to arrest
the plaintiff for the crime charged, proof of probable cause to
arrest the plaintiff for a related offense is also a defense.”);
Toler v. Steed, No. 198CV224DA, 1999 WL 33537150, 3 (N.D. Miss.
July 29, 1999) (recognizing authority of Mississippi Highway
Patrol to arrest motorist for speeding and concluding that
qualified immunity barred § 1983 claim for false arrest for
switching tags and disobeying a lawful order where driver could
not show that officer lacked probable cause to arrest him for
In the case at bar, the evidence establishes that Officer
Soto had clocked plaintiff at 55 miles per hour in a 40 mile per
He thus had probable cause to arrest plaintiff for
See Miss. Code Ann. § 63-9-23 (recognizing authority of
police officers to make arrests without a warrant for violations
of Chapters 3, 5 and 7 of this title for offenses committed in
their presence); Miss. Code Ann. § 63-3-201 (making speeding a
And as there was probable cause to arrest plaintiff
for speeding, “then the arrest was supported by probable cause,
and the claim for false arrest fails.”
Price, 265 F.3d at 369.6
Fourteenth Amendment Due Process
Plaintiff has alleged a claim for violation of his Fourteenth
Amendment right to due process based on Officer Soto’s alleged
perjured testimony that resulted in plaintiff’s wrongful
Specifically, plaintiff alleges he was wrongly
The City and Soto in his official capacity also argue,
in the alternative, that there can be no municipal liability for
any alleged Fourth Amendment violation as there is no municipal
“policy statement, ordinance, regulation” or other official city
policy calling for stops without reasonable suspicion or probable
cause or arrests without probable cause. Indeed, plaintiff claims
that in making the stop and arrest, Soto violated numerous City
policies. However, he also appears to take the position that
since the City was aware of and took no action with respect to
Soto’s violations of policy, then the violations became City
policy. The court need not consider this argument further as
there is no evidence that the City was aware of any violation by
Soto regarding the stop or arrest/detention of plaintiff.
Plaintiff refers in his complaint to the “blatant
violation of [his] right to due process ... through the malicious
prosecution of the unsubstantiated charges stemming from his
traffic stop....” As defendants note in their motion, the Fifth
Circuit held in Castellano v. Fragozo, 352 F.3d 939 (5th Cir.
2003) (en banc), that “no ... freestanding constitutional right to
be free from malicious prosecution exists.” Id. at 945; see id.
at 953 (“[C]ausing charges to be filed without probable cause will
not without more violate the Constitution. So defined, the
assertion of malicious prosecution states no constitutional
claim.”). However, the court went on to explain that “[t]he
initiation of criminal charges without probable cause may set in
force events that run afoul of explicit constitutional
protection—the Fourth Amendment if the accused is seized and
arrested, for example, or other constitutionally secured rights if
a case is further pursued.” Id. at 953. These claims of “lost
constitutional rights are for violation of rights locatable in
constitutional text, and some such claims may be made under 42
convicted based on Officer Soto’s false testimony relating to the
facts and circumstances of the stop and plaintiff’s condition/
demeanor at the time of the stop and his false testimony that
there was no video of the stop.
In Castellano v. Fragozo, 352
F.3d 939 (5th Cir. 2003) (en banc), the Fifth Circuit, while
recognizing that “‘a criminal prosecution based on perjured
testimony ... simply does not comport with the requirements of the
Due Process Clause[,]’” id. at 958 (quoting Albright v. Oliver,
510 U.S. at 300, 114 S. Ct. 807, 127 L. Ed 2d 114 (Stevens, J.,
dissenting)), also acknowledged the “well-established rule that
prosecutors and witnesses, including police officers, have
absolute immunity for their testimony at trial[,]” id. (citing
Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96
Thus, even assuming Soto knowingly gave false testimony
at plaintiff’s trials in municipal court and county court, he is
absolutely immune from a § 1983 claim based on such perjured
See Harris v. Rivera, Civil Action No. 3:11–CV–3013–D,
2013 WL 246709, 11-12 (N.D. Tex. Jan. 23, 2013) (holding that
because of doctrine of absolute testimonial immunity, the
plaintiffs could not plausibly plead a due process violation based
U.S.C. § 1983.” Id. at 953–54. Thus, to the extent that
plaintiff complains merely that defendants caused charges to be
filed without probable cause, he states no constitutional claim.
He can state a claim only to the extent he alleges that defendants
violated specific constitutional rights in connection with a
malicious prosecution. Id. at 945.
on allegedly false or perjured testimony given during criminal
trial) (citing Briscoe and Casetllano); Benavides v. City of
Corpus Christi, Tex., Civil Action No. C–10–121, 2011 WL 835814, 3
(S.D. Tex. Mar. 7, 2011) (holding that “to the extent Plaintiff
alleges any of the individual Defendants testified falsely against
Plaintiff at trial, the Defendants would be immune from liability
since ‘[w]itnesses, including police officers, are ... shielded by
absolute immunity from liability for their allegedly perjurious
testimony’”) (quoting Enlow v. Tishomingo County, 962 F.2d 501,
511 (5th Cir. 1992)).
Plaintiff submits that the City is liable for knowingly
presenting perjured testimony.
However, there is no allegation or
proof of any City policy or custom of presenting perjured
The principles of law governing municipal liability
under § 1983 are familiar:
“Under § 1983, a municipality or local governmental
entity such ... may be held liable only for acts for
which it is actually responsible.” Doe ex rel. Doe v.
Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.
1998) (noting that a municipality cannot be held liable
under § 1983 on a respondeat superior theory); see also
Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S.
658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)
(“Congress did not intend municipalities to be held
liable [for purposes of § 1983] unless action pursuant
to official municipal policy of some nature caused a
constitutional tort.”). Consequently, “[t]o establish
municipal liability under § 1983, a plaintiff must show
the deprivation of a federally protected right caused by
action taken pursuant to an official municipal policy.”
Valle v. City of Houston, 613 F.3d 536, 541–42 (5th Cir.
2010) (citation and internal quotation marks omitted).
To this end, “[a] plaintiff must identify: (1) an
official policy (or custom), of which (2) a policymaker
can be charged with actual or constructive knowledge,
and (3) a constitutional violation whose ‘moving force’
is that policy or custom.” Id. at 541–42 (citation and
internal quotation marks omitted). The plaintiff must
also “demonstrate that the municipal action was taken
with ‘deliberate indifference’ as to its known or
obvious consequences.” Bd. of County Comm'rs of Bryan
County, Okl. v. Brown, 520 U.S. 397, 407, 117 S. Ct.
1382, 137 L. Ed. 2d 626 (1997).
Goudeau v. East Baton Rouge Parish School Bd., – Fed. Appx. –,
2013 WL 5514548, 6 (5th Cir. Oct. 7, 2013).
See also Bolton v.
City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008) (stating that
“[t]he fact that a tortfeasor is an employee or an agent of a
municipality is therefore not sufficient for city liability to
attach; the municipality must cause the constitutional tort, which
occurs ‘when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may be
fairly said to represent official policy, inflicts the injury”).
“[A] ‘custom or policy’ of the municipality ... may take the form
of, e.g., a policy statement formally announced by an official
policymaker or a ‘persistent widespread practice of city officials
or employees, which, although not authorized by officially adopted
and promulgated policy, is so common and well-settled as to
constitute a custom that fairly represents municipal policy.’”
James v. Dallas Housing Auth., 526 Fed. Appx. 388, 394, 2013 WL
2097571, 5 (5th Cir. 2013) (quoting Monell, 436 U.S. at 694, 98 S.
A plaintiff’s “description of a policy or custom and
its relationship to the underlying constitutional violation ...
cannot be conclusory; it must contain specific facts.”
v. Lavigne, – Fed. Appx. –, 2013 WL 4478228, 4 (5th Cir. 2013)
(quoting Spiller v. City of Texas City, Police Dept., 130 F.3d
162, 167 (5th Cir. 1997)).
“A policymaker is ‘one who takes the
place of the governing body in a designated area of city
administration.’” James, 526 Fed. Appx. at 394 (quoting Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
“He or she
must ‘decide the goals for a particular city function and devise
the means of achieving those goals.’” Id. (quoting Bennett v. City
of Slidell, 728 F.2d 762, 769 (5th Cir. 1984)).
In his complaint, plaintiff alleges that “[t]he actions of
the defendant Soto giving false testimony is nothing short of
perjury and the other Defendants either knowingly encouraged it or
refused to take action to correct it in this situation....”
further alleges that “[n]one of the other Defendants, when
confronted with the false testimony, brought appropriate charges
against Defendant Soto.”
And in response to defendants’ motion,
he argues that “[d]efendants were perfectly content with
permitting Defendant Soto to commit perjury twice at the detriment
of the Plaintiff....”
However, the only defendant other than Soto
is the City; and plaintiff has not identified in his complaint or
otherwise any alleged policymaker for the City who had actual or
constructive knowledge that Soto’s testimony was false.
regard, plaintiff alleges only that “Defendant Daniel Soto and/or
others were the governmental officials whose edicts or acts may
fairly be said to represent official policy, practices, customs or
regulations of the Defendants City of Ridgeland and Ridgeland
Clearly, Soto is not a policymaker for the
City; and no other policymaker is identified, either in the
complaint or in plaintiff’s response to defendants’ summary
Accordingly, it is clear that the City is
entitled to summary judgment on this claim.
Plaintiff further alleges that defendants violated his due
process rights not only by testifying falsely that there was no
video of the stop but also by failing to produce a copy of the
video of the stop to plaintiff, as required by Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
the Supreme Court held that the suppression by the prosecution of
evidence favorable to an accused violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.
Id. 373 U.S. at 87, 83 S. Ct. at 1196-1197.
Thus, under Brady,
the government is required to disclose material, exculpatory
evidence to a criminal defendant.
United States v. Walters, 351
F.3d 159, 169 (5th Cir. 2003) (citing Brady, 373 U.S. at 87, 83 S.
“A valid Brady complaint contains three elements: (1)
the prosecution must suppress or withhold evidence, (2) which is
favorable, and (3) material to the defense.”
United States v.
Lanford, 838 F.2d 1351, 1355 (5th Cir. 1988) (quoting United
States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)).
as well as exculpatory evidence fall within Brady's purview.”
Hernandez v. Terrones, 397 Fed. Appx. 954, 970-971 (5th Cir. 2010)
(citing United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985)).
The Fifth Circuit has held that
Brady applies to police officers, as well as to prosecutors, see
Hernandez, 397 Fed. Appx. at 971 (Brady has applied to police
officers since 1994); and it has further held that “a police
officer cannot avail himself of a qualified immunity defense if he
... deliberately conceals exculpatory evidence, for such activity
violates clearly established constitutional rights.”
Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (citing Brady).
Defendants assert that Officer Soto had no obligation or
responsibility to determine whether video of the arrest existed
and, if so, to produce it to plaintiff’s counsel.
whether that is correct, the record here contains evidence which
suggests that Officer Soto was actually aware that there was a
video of the stop.
Specifically, video logs maintained by the
City of Ridgeland show that Officer Soto logged into the video
system and viewed the video around 5:00 a.m. on the morning of
In his deposition, Officer Soto agreed that
this evidence suggested that he must have viewed the video when he
was preparing his report on the arrest.
Yet he failed to inform
the prosecutor of the existence of the video, even after becoming
aware that the prosecutor was unaware that the video existed.8
Defendants note that “[e]vidence is not ‘suppressed’ if
the defendant ‘knows or should know of the essential facts that
would enable him to take advantage of it.’” United States v.
Runyan, 290 F.3d 223, 246 (5th Cir. 2002) (citing United States v.
Shoher, 555 F. Supp. 346, 352 (S.D.N.Y. 1983)); see also United
States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980)(“[W]hen
information is fully available to a defendant at the time of trial
and his only reason for not obtaining and presenting the evidence
to the Court is his lack of reasonable diligence, the defendant
has no Brady claim.”). They further submit that the prosecution’s
obligation under Brady is to produce exculpatory evidence to the
accused “upon request” and that a due process violation occurs
only when the prosecution withholds material evidence favorable to
the accused upon request of the accused. And they argue that
since plaintiff’s defense attorney in the criminal actions (who is
also his attorney herein) “knew all along video of the arrest
existed” and yet failed to make a request for same, then plaintiff
has no viable claim based on any Brady violation.
Since at least 1995, the rule under Brady has been that
“regardless of request, favorable evidence is material, and
constitutional error results from its suppression by the
government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Kyles v. Whitley, 514 U.S.
419, 433-434, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490 (1995)
(emphasis added) (quoting United States v. Bagley, 473 U.S. 667,
682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)).
Furthermore, while it is apparent from the evidence of record that
plaintiff’s counsel suspected that there was a video of the
arrest, it is unclear from the evidence what steps he took to
obtain the video. There is evidence that some effort was made.
For example, there was discussion in the county court trial of
subpoenas that would have covered the video; and yet it also seems
that the only subpoena that was actually in the criminal file was
the one served after plaintiff’s convictions. There is also
discussion of discovery requests propounded by the defense; in
this discussion, the county court prosecutor maintained that he
had given the defense “everything we have.” Particularly given
the prosecutor’s representations to defense counsel and the county
court that he had produced “everything we have,” it would be
Defendants contend that in any event, there was no deliberate
concealment by Soto of the video since by the time of plaintiff’s
trials, Soto simply could not recall whether there was a video of
They appear to suggest that at worst, he was merely
negligent, which will not support liability.
See Porter v. White,
No. 06-11769, 2007 WL 1074714, at *11 (11th Cir. Apr. 12, 2007)
(holding that “mere negligence or inadvertence on the part of a
law enforcement official in failing to turn over Brady material to
the prosecution, which in turn causes a defendant to be convicted
at a trial that does not meet the fairness requirements imposed by
the Due Process Clause, does not amount to a ‘deprivation’ in the
Thus, a negligent act or omission cannot
provide a basis for liability in a § 1983 action seeking
compensation for loss of liberty occasioned by a Brady
In the court’s opinion, however, there is a genuine
issue of fact as to whether Soto intentionally concealed the
difficult for this court to find in a summary judgment setting
that either that plaintiff’s criminal defense counsel knew or
should have known that the video existed or that he failed to make
an effort to obtain any video of the stop/arrest that may have
In his affidavit, plaintiff’s counsel asserts that Soto
affirmatively claimed in municipal court that there was no video
of the stop. For purposes of the present motion, it is immaterial
whether Soto testified that there was no video of the stop or
simply that he could not recall whether a video of the stop
existed. In either event, there is a genuine issue of material
fact, given the evidence that Soto knew that a video existed.
Accordingly, Soto is not entitled to summary judgment on
As for the City, there is no allegation in the complaint –
not even a conclusory allegation – regarding any City policy or
custom of failing to produce exculpatory evidence.11
there any argument in plaintiff’s response directed to the
existence of any such policy or custom.
judgment will be granted for the City on this claim.
In his complaint, plaintiff alludes to a claim for excessive
The Fourth Amendment's “protection against unreasonable
search and seizures requires that officers refrain from using
excessive force, that is, more force than is reasonably necessary,
when effectuating an arrest.”
United States v. Brugman, 364 F.3d
613, 616 (5th Cir. 2004) (citation omitted).
“It is clearly
established law in this circuit that in order to state a claim for
excessive force in violation of the [Fourth Amendment], a
Just as Soto is not entitled to summary judgment on this
claim, plaintiff has not demonstrated that he is entitled to
summary judgment on this claim. There are genuine issues of
material fact that preclude summary judgment for either party on
Plaintiff points out in his response that in July 2009,
Ridgeland Police Chief Jimmy Houston learned that in connection
with the DUI arrest of another individual, the video of the stop
revealed that Soto had falsified information in his report
regarding the basis of the arrest. That incident does not bear on
any relevant City policy as it did not involve any perjured
testimony or failure to produce Brady material.
plaintiff must allege (1) an 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
Bazan v. Hidalgo Cnty., 246 F.3d 481, 487 (5th
Plaintiff has neither alleged any facts nor presented
any evidence in support of an excessive force claim.
physical contact or force plaintiff has identified is Officer
Soto’s placing handcuffs on him and placing him in the backseat of
the patrol car.
As matter of law, this does not constitute
Fifth, Sixth and Eighth Amendments
In addition to his claims for violations of the Fourth and
Fourteenth Amendments, plaintiff’s complaint references claims for
violation of his rights under the Fifth, Sixth and Eighth
These claims will be dismissed.
“[T]he Fifth Amendment applies only to the actions of the
federal government, and not to the actions of a municipal
Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).
As there was no involvement by the federal government and no
actions taken by any federal agency, plaintiff has no cognizable
Fifth Amendment claim.
In his complaint, plaintiff has not identified a basis for a
claim against the City for violation of his Sixth Amendment
The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defense.
None of plaintiff’s factual allegations implicate a violation of
any of these rights.12
In his response to defendants’ motion,
plaintiff seemingly takes the position that his Sixth Amendment
speedy trial right was violated since his initial arrest occurred
on December 7, 2008 and yet “it was not until March of 2010
before Plaintiff could be fully cleared upon discovery of the
As plaintiff was tried less than five months after has
arrest, there is no basis for his alleging a speedy trial
See Ellis v. State, – So. 3d –, 2013 WL 5789231, 2
(Miss. Ct. App. 2013) (explaining that statutory right to speedy
trial requires that accused be brought to trial within 270 days of
arraignment, and that constitutional right to speedy trial is
In connection with a challenge to the constitutionality
of Mississippi’s Implied Consent Law, plaintiff’s complaint refers
to a violation of his right to confront his accusers. That claim
has been dismissed and is no longer before the court.
Plaintiff’s claims relating to the City’s use of the
Intoxilyzer 8000 have also been dismissed, and thus he implicitly
concedes in his response that his causes of action under 42 U.S.C.
§§ 1985 and 1986, which were also based on the use of the
Intoxilyzer 8000, are due to be dismissed.
potentially implicated only in the case of a delay of eight months
Plaintiff complains of a violation of the Eighth Amendment;
and yet the Fifth Circuit consistently has held that the
protections of the Eighth Amendment against cruel and unusual
punishment apply only to convicted inmates, not suspects or
See Grabowski v. Jackson County Public
Defenders Office, 47 F.3d 1386, 1395 (5th Cir. 1995).
Based on all of the foregoing, it is ordered that plaintiff’s
motion for summary judgment is denied.
It is further ordered that
the motion by the City and Daniel Soto in his official capacity is
Finally, it is ordered that the motion of Daniel Soto in
his individual capacity is granted, except as to plaintiff’s claim
for a Fourth Amendment due process violation based on his failure
to disclose and/or concealment of Brady material.
SO ORDERED this 17th day of December, 2013.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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