Whitfield v. City of Ridgeland et al

Filing 39

Memorandum Opinion and Order granting 12 MOTION to Dismiss, finding as moot 27 MOTION for Extension of Time to File Response/Reply as to 12 MOTION to Dismiss Pending Resolution of Motion to Amend Complaint, denying 26 MOTION to Amend/Correct 1 Complaint, granting 28 MOTION for Judgment on the Pleadings. Signed by District Judge Tom S. Lee on 5/11/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
CHARLES DWIGHT WHITFIELD
VS.

PLAINTIFF
CIVIL ACTION NO. 3:11CV744TSL-LRA

CITY OF RIDGELAND,
RIDGELAND POLICE DEPARTMENT,
STATE OF MISSISSIPPI, MISSISSIPPI
DEPARTMENT OF PUBLIC SAFETY,
MISSISSIPPI HIGHWAY PATROL,
COMMISSIONER ALBERT SANTA CRUZ
in his official capacity,
DANIEL SOTO in his official and
individual capacity, AND OTHER
UNKNOWN JOHN and JANE DOES 1-10,
in their official and individual
capacities

DEFENDANTS

MEMORANDUM OPINION AND ORDER
There are pending before the court three interrelated
motions.

Initially, defendants State of Mississippi, Mississippi

Department of Public Safety and Mississippi Highway Patrol (the
State defendants) moved to dismiss pursuant to Rules 12(b)(1) and
(6) of the Federal Rules of Civil Procedure on Eleventh Amendment
immunity grounds.

In response, plaintiff Charles Dwight Whitfield

filed a motion to amend his complaint to drop the State of
Mississippi, Mississippi Department of Public Safety and
Mississippi Highway Patrol as defendants, and to name instead Phil
Bryant, Governor of the State of Mississippi, in his official
capacity.

In the meantime, defendant Commissioner of Public

Safety Albert Santa Cruz, sued in his official capacity, moved for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c).

The State defendants collectively responded in

opposition to that part of plaintiff’s motion to amend seeking to
add Governor Bryant as a defendant, contending that the amendment
to add Governor Bryant would be futile for all the reasons
advanced in Commissioner Santa Cruz’s motion for judgment on the
pleadings.

The court, having considered these various motions,

concludes defendants’ motions should be granted, and plaintiff’s
motion to amend should be denied.
This case arises from plaintiff’s arrest by Officer Daniel
Soto on December 7, 2008 in the City of Ridgeland, Mississippi.
According to the allegations of his 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 in

light of the officer’s false statement that his radar had put
plaintiff going 55 m.p.h. in a 40 m.p.h. zone, plaintiff invoked
his constitutional right to remain silent.

Plaintiff states that

Officer Soto immediately arrested him for driving under the
influence, speeding, and, later, for no proof of insurance.
Officer Soto placed plaintiff into custody and took him to the
station.

Plaintiff refused to submit to a breathalyzer test after

being arrested, and consequently, his driver’s license was
automatically suspended for ninety days pursuant to Mississippi’s

2

Implied Consent Law.1

Plaintiff was convicted in municipal court,

but following a motion for new trial, the charges were dismissed.
Plaintiff filed this 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 Commission 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 Amendments.”

In substance, as

related to the State defendants, plaintiff alleges that although
the device has been widely criticized, the State defendants have
mandated use of the Intoxilyzer 8000 computer as the accepted
instrument for breath tests by law enforcement agencies in the
state; that the computer software used by the Intoxilyzer 8000 is
faulty, inaccurate, and totally unreliable, and yet, as customized

1

See Miss. Code Ann. § 63-11-5(1) (“Any person who
operates a motor vehicle upon the public highways, public roads
and streets of this state shall be deemed to have given his
consent, subject to the provisions of this chapter, to a chemical
test or tests of his breath for the purpose of determining alcohol
concentration. A person shall give his consent to a chemical test
or tests of his breath, blood or urine for the purpose of
determining the presence in his body of any other substance which
would impair a person's ability to operate a motor vehicle.”);
Miss. Code Ann. § 63-11-5(2) (providing that “failure to submit to
such chemical test or tests of his breath shall result in the
suspension of his privilege to operate a motor vehicle upon the
public streets and highways of this state for a period of ninety
(90) days in the event such person has not previously been
convicted of a violation of Section 63-11-30").
3

by the State defendants, the device does not supply the source
codes used by the software to determine the criteria to convert
the data to a chemical percentage; and that as a result,
defendants have no means of tracing any probable errors in the
testing.

Further, in the event an individual chooses not to take

part in an unreliable method to determine his alcohol level, his
license is automatically suspended “without any form of review.”2
Based on these allegations, plaintiff demands an award of
compensatory and punitive damages, and seeks a declaration that
the Implied Consent Law is unconstitutional and an injunction
prohibiting the State defendants from continuing to utilize and
administer breath tests with the Intoxilyzer 8000.3
In their motion to dismiss, the State defendants have
correctly contended that plaintiff’s claims against them are
barred by the Eleventh Amendment.

See Edelman v. Jordan, 415 U.S.

651, 662-663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974)
2

As plaintiff puts it,
[T]he State of Mississippi and the Defendants, together,
have opened the door to a wrongful conviction of which
the Defendant has little opportunity to defend as such
is entirely grounded on "evidence" full of errors and
defects that can only be equated to false testimony. A
read of the statutes as they are currently situated,
would force an individual to take an error-filled breath
test or face a license suspension without any due
process at the hands of the enforcing entities.
3

In addition
defendants, plaintiff
Ridgeland and Officer
and incarceration and

to the referenced claims against the State
has alleged claims against the City of
Soto for excessive force, improper arrest
malicious prosecution.
4

(holding that “an unconsenting State is immune from suits brought
in federal courts by her own citizens as well as by citizens of
another State”); see also Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct. 684, 687, 121
L. Ed. 2d 605 (1993) (recognizing that Eleventh Amendment bar
extends to State and agencies acting under its control, “arms of
the state”); Gazzo v. Miss. Dept. of Public Safety, Civ. Action
No. 1:09cv719–LG–RHW, 2011 WL 1841258, 1 (S.D. Miss. May 13, 2011)
(holding Mississippi Department of Public Safety is arm of the
state); King v. Mississippi Highway Patrol, 827 F. Supp. 402, 40304 (S.D. Miss. 1993) (finding Mississippi Highway Safety Patrol to
be arm of the state).
Although in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52
L. Ed. 714 (1908), the Supreme Court “created an exception to
Eleventh Amendment immunity for claims for prospective relief
against state officials who have been sued in their official
capacities,” Nelson v. Univ. of Texas at Dallas, 535 F.3d 318, 320
(5th Cir. 2008), the Ex Parte Young doctrine “has no application
in suits against the States and their agencies, which are barred
regardless of the relief sought[,]” Puerto Rico Aqueduct, 506 U.S.
at 146 (citation omitted).

Accordingly, the court lacks

jurisdiction over plaintiff’s claims against the State of
Mississippi, the Mississippi Department of Public Safety, and the
Mississippi Highway Patrol are entitled to be dismissed.
5

Plaintiff has apparently come to recognize this, as evidenced
by his motion to amend.

By that motion, he seeks to drop the

State defendants, and to add Governor Phil Bryant, in his official
capacity.

The State defendants oppose the addition of Governor

Bryant, arguing that the proposed amendment is futile, since the
claims plaintiff would assert against Governor Bryant would fail
as a matter of law for the same reasons Commissioner Santa Cruz
has contended for dismissal of the claims against him.

See

Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir.
2000) (“It is within the district court's discretion to deny a
motion to amend if it is futile.”) (citing Martin's Herend
Imports, Inc. v. Diamond & Gem Trading United States of America
Co., 195 F.3d 765, 771 (5th Cir. 1999)).
In his motion for judgment on the pleadings, Commissioner
Santa Cruz makes the following arguments: (1) plaintiff lacks
standing to pursue his claims for declaratory and injunctive
relief, and those claims are moot; (2) plaintiff’s claim for
damages and claims based on state law are barred by the Eleventh
Amendment; (3) plaintiff fails to state a claim upon which relief
can be granted because (a) the Implied Consent Law provides due
process of law, (b) the use of the Intoxilyzer 8000 is
constitutional, and (c) there is no plausible basis for any claim
by plaintiff against Santa Cruz for alleged unlawful arrest,
incarceration and prosecution.
6

In his response to the motion, plaintiff implies that he does
not seek damages from Santa Cruz (notwithstanding that his
complaint includes a demand for such damages from all defendants).
Clearly, any such claim would be barred by the Eleventh Amendment.
See Chrissy F. ex rel. Medley v. Mississippi Dep’t of Public
Welfare, 925 F.2d 844, 849 (5th Cir. 1991) (“[The] Eleventh
Amendment bars claims for damages not only when the claim is
directed against the state but also when the claimant seeks
damages from the State’s officers in their official capacities and
the damages would be paid out of the state treasury.”).

Moreover,

while plaintiff does not address the issue, Santa Cruz is patently
correct that the Eleventh Amendment also bars any official
capacity claim against him based on state law.

See Pennhurst

State School & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79
L. Ed. 2d 67 (1984) (holding that Eleventh Amendment deprives
federal courts of jurisdiction over claims for injunctive relief
against state officials based on state law).
Because of the Ex Parte Young exception, the Eleventh
Amendment is no bar to plaintiff’s claims against Santa Cruz for
injunctive relief and declaratory relief in his official capacity.
Santa Cruz contends, though, that plaintiff lacks standing to
pursue these claims, and relatedly, that the claims are moot.
is correct.

7

He

“The standing requirement originates from the Constitution
confining federal courts to ‘Cases’ and ‘Controversies.’”

Time

Warner Cable, Inc. v. Hudson, 667 F.3d 630, 635-636 (5th Cir. 2012)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.
Ct. 2130, 119 L. Ed. 2d 351 (1992) (standing “set[s] apart the
‘Cases' and ‘Controversies' that are of the justiciable sort
referred to in Article III”)).

To establish constitutional

standing, a plaintiff must satisfy three elements:
First, the plaintiff must have suffered an “injury in
fact” ... an invasion of a legally protected interest
which is ... concrete and particularized ... not
“conjectural” or “hypothetical” .... Second, there must
be a causal connection between the injury and the
conduct complained of .... Third, it must be “likely,”
as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”
Lujan, 504 U.S. at 560–61, 112 S. Ct. 2130 (internal citation
omitted).

With respect to the third requirement, a plaintiff

seeking injunctive or declaratory relief must prove not only an
injury, but also “a real and immediate threat of future injury in
order to satisfy the ‘injury in fact’ requirement.”

Eubank v.

Leslie, 210 Fed. Appx. 837, 842, 2006 WL 3627005, 3 (11th Cir.
2006) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102–05,
103 S. Ct. 1660, 1665–67, 75 L. Ed. 2d 675 (1983).

That is,

[b]ecause injunctions regulate future conduct, a party
has standing to seek injunctive relief only if the party
alleges, and ultimately proves, a real and immediate—as
opposed to a merely conjectural or hypothetical—threat
of future injury. [City of Los Angeles v. Lyons, 461
U.S. 95, 102, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675
(1983)]. Logically, “a prospective remedy will provide
8

no relief for an injury that is, and likely will remain,
entirely in the past.” American Postal Workers Union v.
Frank, 968 F.2d 1373, 1376 (1st Cir. 1992). Although
“past wrongs are evidence bearing on whether there is a
real and immediate threat of repeated injury,” O'Shea v.
Littleton, 414 U.S. 488, 496, 94 S. Ct. 669, 676, 38 L.
Ed. 2d 674 (1974), “[p]ast exposure to illegal conduct
does not in itself show a present case or controversy
regarding injunctive relief ... if unaccompanied by any
continuing, present adverse effects.” Lyons, 461 U.S.
at 102, 103 S. Ct. at 1665 (alterations in original)
(quoting O'Shea, 414 U.S. at 496, 94 S. Ct. at 676).
Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994).
“[S]tanding in no way depends on the merits of the
plaintiff's contention that particular conduct is illegal....”
Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206, 45 L.
Ed. 2d 343 (1975).

Standing requirements, however, “are not mere

pleading requirements but rather [are] an indispensable part of
the plaintiff's case.”

Lujan v. Defenders of Wildlife, 504 U.S.

555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
Closely related to the standing requirement is the mootness
doctrine, which “requires that the controversy posed by the
plaintiff's complaint be ‘live’ not only at the time the plaintiff
files the complaint but also throughout the litigation process.”
Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990).

An action is

moot where the controversy is no longer live, or the parties lack
a personal stake in its outcome.

Id. at 867.

doctrine of standing in a time frame.

“Mootness is ‘the

The requisite personal

interest that must exist at the commencement of litigation

9

(standing) must continue throughout its existence (mootness).’”
Center for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th
Cir. 2006) (quoting United States Parole Comm'n v. Geraghty, 445
U.S. 388, 397, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980)).

As with

standing, an action becomes moot unless there remains throughout
the litigation a real and immediate threat of repeated injury.
However, there are exceptions to the operation of the mootness
doctrine, one of which applies to “‘the class of controversies
capable of repetition, yet evading review.’”

Id. (quoting First

Nat'l Bank v. Bellotti, 435 U.S. 765, 774, 98 S. Ct. 1407, 55 L.
Ed. 2d 707 (1978)).

Outside the class action context, the

“capable of repetition, yet evading review” exception applies only
in exceptional situations where the following two circumstances
are simultaneously present: “[T]he challenged action was in its
duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action
again.’” id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96
S. Ct. 347, 46 L. Ed. 2d 350 (1975)).

This doctrine “applies . .

. only when repetition is likely to embroil the same parties to
the dispute.” Robinson v. City of Chicago, 868 F.2d 959, 967 (7th
Cir. 1989).
Santa Cruz submits that in this case, whether analyzed in
terms of standing or mootness, plaintiff’s primary failure is that
10

he cannot show a real and immediate threat that he will again be
stopped and arrested for DUI, that he will refuse to consent to a
breathalyzer test and that Department of Public Safety will
consequently suspend his driver’s license.

In City of Los Angeles

v. Lyons, the plaintiff alleged that he was stopped for a traffic
violation, and that although he offered no resistance or
provocation, the officers applied a chokehold that rendered him
unconscious and seriously injured him.
1664.

Id. at 99, 103 S. Ct. at

Lyons sued for damages and an injunction to bar future

police use of chokeholds absent an immediate threat of deadly
force.

Id. at 98, 103 S. Ct. at 1663.

The Supreme Court

concluded Lyons lacked standing to pursue injunctive relief
because, even though he alleged that Los Angeles police officers
“routinely appl[ied] chokeholds in situations where they are not
threatened by the use of deadly force,” id. at 105, 103 S. Ct. at
1666, he did not, and could not credibly establish that he was
“realistically threatened by a repetition of his experience.”
at 106, 103 S. Ct. at 1667.

Id.

The Court noted that although other

instances of illegally applying a chokehold might occur, this fact
did not establish an immediate threat of harm necessary for
standing:
As we have said, however, it is no more than conjecture
to suggest that in every instance of a traffic stop,
arrest, or other encounter between the police and a
citizen, the police will act unconstitutionally and
inflict injury without provocation or legal excuse. And
11

it is surely no more than speculation to assert either
that Lyons himself will again be involved in one of
those unfortunate instances, or that he will be arrested
in the future and provoke the use of a chokehold by
resisting arrest, attempting to escape, or threatening
deadly force or serious bodily injury.
Id. at 108, 103 S. Ct. at 1668.
Applying Lyons’ reasoning, the court in Yachnin v. Village of
Libertyville, 803 F. Supp. 2d 844, 850 (N.D. Ill. 2011), held that
the plaintiff Yachnin lacked standing to obtain an injunction
against a municipality’s policy of requiring motorists to submit
to a breathalyzer or blood test on certain weekends.

In Yachnin,

the plaintiff alleged that at the time she was stopped by a
Village police officer, she was obeying all traffic laws, had not
committed any moving violations and her car was in good and proper
working order.

Id. at 848.

She was arrested following a field

sobriety test, and although first told that her license would be
automatically suspended if she refused a breathalyzer, she was
also told that the Village had established a “No Refusal Weekend”
policy, so that on certain weekends, including the one on which
she was stopped, no motorist would be permitted to refuse a
breathalyzer test.

Id.

Notwithstanding this, Yachnin refused to

submit to a breathalyzer test.

Id.

The officer obtained a search

warrant to compel her to submit to a breathalzyer or provide a
blood sample, but she still refused and was charged with contempt.

12

The charge was later dismissed, and Yachnin sued to enjoin the “No
Refusal Weekend” policy.

Id.

The court concluded that Yachnin lacked standing as she was
“unable to demonstrate that it is likely, rather than speculative
or hypothetical, that she will be subjected to a compelled
breathalyzer or blood sample test in the future.”

Id. at 850.

The court found that Yachnin “present[ed] herself as a law-abiding
citizen and d[id] not allege that she plans to drive while
intoxicated beyond the legal limit in the future.”
omitted).

Id. (citation

The court concluded that Yachnin could not claim she

satisfied the “capable of repetition yet evading review” doctrine,
which “applies ... only when repetition is likely to embroil the
same parties to the dispute,” id. (citation omitted), because she
“[had] not demonstrated a likelihood that she [would] be arrested
for DUI in the future because nothing in the record [suggested]
that she [was] a repeat offender,” id.
In another case relied on by Santa Cruz, Brotherhood of
Locomotive Engineers v. Jones, Civ. A. No. 92–2868, 1992 WL 370126
(E.D. La. Dec. 1, 1992), the court held that the plaintiff lacked
standing to seek an injunction “prohibiting the defendants from
conducting alcohol and drug testing of railroad employees except
as provided by federal regulation.”

Id. at *1-2.

Finding the

case was controlled by Lyons, the court concluded that the
plaintiff could not “establish a real and immediate threat that he
13

would again be tested under these circumstances” because that
would require that he “again be involved in a train collision” and
be subjected to a test “without the presence of additional factors
indicating impairment.”

Id.

“The risk posed by the occurrence of

these events is too speculative.”

Id.

In the case at bar, plaintiff submits that he meets the
standing requirement, and that the mootness doctrine is
inapplicable, because “[t]he continued use of the Intoxilyzer 8000
and the serious repercussions that follow a refusal to submit to a
breathalyzer test more than satisfies the probability that [he]
could be subjected to the same government action again.”

In the

court’s view, however, plaintiff’s assertion that the facts
suggest a “a probability that [he] could be subjected to the same
government action again” says nothing more than that it is
possible plaintiff could be subjected to the same action again.
Plaintiff has not claimed or shown that he is likely to be
subjected to the same government action again, as is required
under Lyons.

That is, in order to have standing to pursue the

requested declaratory and injunctive relief and to evade the
application of the mootness doctrine, plaintiff has the burden to
show there is a reasonable likelihood that in the immediate future
he will be stopped and arrested for DUI and that his driver’s
license will be suspended by Department of Public Safety on
account of his refusal to submit to a breath test on the
14

Intoxilyzer 8000.

Cf. Wallace v. Texas Tech Univ., 80 F.3d 1042,

1047 n.3 (5th Cir. 1996) (“Jurisdiction over a plaintiff's claims
for future relief is appropriate only if a reasonable likelihood
exists that the plaintiff will again be subjected to the allegedly
unconstitutional actions.”).

Any assertion by plaintiff that such

a scenario is likely to recur is far too speculative to satisfy
the injury-in-fact requirement of the standing doctrine, or the
“capable of repetition yet evading review” exception to the
mootness doctrine.

Indeed, as defendant notes, in the absence of

some basis to conclude otherwise, the court must assume that
plaintiff will abide by the law and not be arrested for DUI again.
See O’Shea, 414 U.S. at 497, 94 S. Ct. at 676 (stating that
“attempting to anticipate whether and when these respondents will
be charged with crime and will be made to appear before either
petitioner takes us into the area of speculation and conjecture,”
and that “[w]e assume that [plaintiffs] will conduct their
activities within the law and so avoid prosecution and conviction
as well as exposure to the challenged course of conduct said to be
followed by petitioners”); Campbell v. Miller, 373 F.3d 834, 836
(7th Cir. 2004) (“Only if [plaintiff] is apt to be arrested and
searched again would prospective relief be apt, and nothing in
this record suggests that [plaintiff] is a repeat offender”).
For these reasons, the court concludes plaintiff lacks
standing to pursue his claims against Santa Cruz for injunctive
15

and declaratory relief.

Further, based on all of the foregoing,

the court concludes that Santa Cruz’s motion for judgment on the
pleadings is well taken as to all plaintiff’s claims against him.
That brings the court back to plaintiff’s motion to amend to
add Governor Bryant as a defendant.

Plaintiff proposes to allege

against Governor Bryant in his official capacity the very same
claims he alleged against Santa Cruz in his official capacity.
The claims are no more viable against Governor Bryant than they
are against Santa Cruz, and therefore, the motion to amend will be
denied.
Based on the foregoing, it is ordered that the State
defendants’ motion to dismiss is granted; that Santa Cruz’s motion
for judgment on the pleadings is granted; and that plaintiff’s
motion to amend to add Governor Bryant is denied.
SO ORDERED this 11th day of May, 2012.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

16