Hunter v. Town of Edwards et al
ORDER granting 21 Motion to Strike; Order granting in part and denying in part 14 Motion to Dismiss. The stay entered in the case is hereby vacated, the Clerk of Court is directed to return the case to the active docket. Counsel for Defendant, Antonio Wilkerson, shall contact the Chambers of United States Magistrate Judge Linda R. Anderson within seven days and request the scheduling of a Case Management Conference. Signed by District Judge William H. Barbour, Jr on 05/16/2012. (Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:11-cv-759-WHB-LRA
TOWN OF EDWARDS and
OFFICER ANTONIO WILKERSON, in his
Individual and Official Capacities
OPINION AND ORDER
This cause is before the Court on Defendant’s Motion to
Dismiss on the Basis of Qualified Immunity, Sovereign Immunity, and
Under Heck v. Humphrey.
Having considered the pleadings1 as well
as supporting and opposing authorities, the Court finds the Motion
should be granted in part, and denied in part.
Factual Background and Procedural History
Plaintiff, John Hunter (“Hunter”), was stopped by Town of
charged with careless driving and driving under the influence of
handcuffed and placed in the backseat of Wilkerson’s squad car.
Plaintiff filed a “Supplemental Response” to the subject
Motion to Dismiss. As Plaintiff did not seek leave for filing
such pleading as required under Rule 15(d) of the Federal Rules
of Civil Procedure, it will not be considered by the Court when
considering the subject Motion. Accordingly, Defendant’s Motion
to Strike the Supplemental Response will be granted.
According to Hunter, after being placed in the squad car with his
hands handcuffed behind his back, Wilkerson tased him.
On August 10, 2011, Hunter filed a lawsuit against the Town of
Edwards and Wilkerson in the Circuit Court for the First Judicial
District of Hinds County, Mississippi.
In his Complaint, Hunter
alleges that the defendants violated his constitutional rights
against the use of excessive force, as well as his due process and
equal protection rights, in violation of 42 U.S.C. § 1983.
also alleges state law claims of intentional/negligent infliction
of emotional distress and civil assault and battery.
The case was
removed to this Court, and the Court finds, as Hunter has alleged
claims arising under federal law, that it may properly exercise
federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Wilkerson has now moved for dismissal, presumably pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, of the claims
alleged against him on the bases of qualified immunity, sovereign
immunity, and under Heck v. Humphrey, 512 U.S. 477 (1994).
Rule 12(b)(6) Standard
A motion to dismiss brought pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure is “viewed with disfavor” and
Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997).
When considering such motion, the Court must
liberally construe the allegations in the complaint in favor of the
plaintiff, and accept all pleaded facts as true.
See Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th
As explained by the United States Court of Appeals for
the Fifth Circuit:
To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead ‘enough facts to state a claim to
relief that is plausible on its face.’ Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all
the allegations in the complaint are true (even if
doubtful in fact).’ Id. at 555.
In re Katrina Canal Breaches Lit., 495 F.3d 191, 205 (5th Cir.
2007). This same rule applies “when immunity is urged as a defense
by a motion to dismiss.”
Chrissy F. by Medley v. Mississippi Dept.
of Pub. Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
Under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... ,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress ....
Wilkerson has moved for the dismissal of Hunter’s Section 1983
claims on the basis of qualified immunity.
It is well settled that
this defense is available to state actors who are sued under 42
U.S.C. § 1983.
See e.g. Harlow v. Fitzgerald, 457 U.S. 800, 818
This defense provides a shield from civil liability to
officials whose conduct does not reasonably violate a clearly
established constitutional or statutory right.
Davis v. Scherer,
468 U.S. 183, 194 (1984); Johnston v. City of Houston, 14 F.3d
1056, 1059 (5th Cir. 1994)(“Whether a government official is
entitled to qualified immunity generally turns on the objective
reasonableness of the action assessed in light of the legal rules
that were clearly established at the time it was taken.”)
Wilkerson in both his official and individual capacities.
immunity only applies to claims alleged against officials in their
individual, but not their official, capacities.
See Keim v. City
of El Paso, 1998 WL 792699, at *3 (5th Cir. Nov. 2, 1998)(holding:
“[T]he individual defense of qualified immunity does not apply to
an official-capacity claim.”)(citing Kentucky v. Graham, 473 U.S.
159, 167 (1985)).
Thus, because the defense of qualified immunity
is not applicable to official capacity claims under Section 1983,
Wilkerson’s Motion to Dismiss, to the extent it seeks the dismissal
of such claims, is denied.
individual capacity claims under Section 1983, the Court undertakes
a two-step analysis.
First, the Court must determine whether the
plaintiff has alleged a violation of constitutional or statutory
If such violation is alleged, the Court next considers
“whether the allegedly violated constitutional rights were clearly
established at the time of the incident; and, if so, whether the
conduct of the defendants was objectively unreasonable in the light
of that then clearly established law.”
Hare v. City of Corinth,
135 F.3d 320, 326 (5th Cir. 1998)(citing Rankin v. Klevenhagen, 5
F.3d 103, 108 (5th Cir. 1993)(“When evaluating whether a plaintiff
stated a constitutional violation, we look to currently applicable
constitutional standards. However, the objective reasonableness of
an official’s conduct must be measured with reference to the law as
it existed at the time of the conduct in question.”))(alterations
See also Anderson v. Creighton, 483 U.S. 635, 638
(1987)(finding that qualified immunity shields government officials
consistent with the rights they are alleged to have violated.”).
In his Complaint, Hunter alleges that Wilkerson “took actions
to deprive [him] of his due process rights under federal laws,
equal protection rights under federal laws, and violated other
civil rights of [his] under federal law.”
Compl., ¶ 15.
Complaint, however, does not allege the specific constitutional
Amendments he claims were violated.
Further, in response to the
Motion to Dismiss, Hunter only discusses a claim for an alleged
violation of his due process rights under the Fourteenth Amendment.
Thus, based on the pleadings before it, the Court finds Hunter has
abandoned any due process claim under the Fifth Amendment and any
equal protection claim under the Fourteenth Amendment.
the Court finds Wilkerson’s Motion to Dismiss, to the extent it
seeks dismissal of the Section 1983 individual capacity claims
arising from alleged violations of due process rights protected by
the Fifth Amendment and/or equal protection rights protected by the
Fourteenth Amendment on the basis on qualified immunity, should be
Hunter alleges Wilkerson violated his Fourteenth Amendment due
process rights by tasing him after he was arrested, handcuffed with
his hands behind his back, and placed in the squad car.
the requisite two-step qualified immunity analysis, the Court finds
violation of that constitutional right, thus satisfying the first
Even if they had not been abandoned, Hunter could not
have proceeded against Wilkerson on a Fifth Amendment due process
claim as “the Fifth Amendment applies only to violations of
constitutional rights by the United States or a federal actor.”
See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000).
Likewise, Hunter could not have proceeded against Wilkerson on a
Fourteenth Amendment equal protection claim as there are no
allegations in his Complaint that (1) he was intentionally
treated differently from others similarly situated arrestees
and/or (2) there was no rational basis for the difference in
treatment. See Whiting v. University of S. Miss., 451 F.3d 339,
348 (5th Cir. 2006).
step of the qualified immunity analysis.
See e.g. Walton v.
Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995)(“We have held that
‘[t]he right to be free of state-occasioned damage to a person’s
bodily integrity is protected by the fourteenth amendment guarantee
of due process.’”)(quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 451 (5th Cir. 1994)).
As regards the second step, the Court begins by finding that
the allegedly violated constitutional right, i.e. due process under
the Fourteenth Amendment, was clearly established at the time of
the taser incident.
See e.g. United States v. Stokes, 506 F.2d
771, 775 (5th Cir. 1975)(explaining “that one’s right to be free
from unlawful assault by state law enforcement officers when
lawfully in their custody has been made a definite and specific
part of the body of due process rights protected by the fourteenth
amendment of the Constitution.”). Thus, the issue before the court
unreasonable in the light of that then clearly established law.”
Again, on this issue, the Complaint alleges that Hunter was tased
after he was arrested, handcuffed with his hands behind his back,
and placed in the squad car.
See Compl., ¶¶ 9-12.
however, argues that the use of a taser was justified because “he
[Hunter] who was kicking out the police car’s window.”
Supp. of Mot. to Dismiss [Docket No. 15], 5.
See Mem. in
See also id. at 5
(arguing that “the only logical conclusion by any police officer
faced with his situation was that [Hunter] was trying to escape
and/or further destroy the police car, thus justifying the force,
especially in light of then-Officer Wilkerson being alone.”).
Wilkerson, however, has not provided any evidence to support a
finding that Hunter was acting “wildly”, or that he had kicked-out
the window of the police car.
The only evidence presented in
support of Wilkerson’s arguments is an abstract of a municipal
court record showing that Hunter was found guilty of malicious
mischief, and was ordered to “pay cost of replacing window.”
Mot. to Dismiss [Docket No. 14], Ex. A.
There is nothing in the
abstract, however, showing that Wilkerson was acting “wildly” at
the time he was tased, or that the window he was ordered to replace
was on a police car.
Thus, based on the allegations in the
Complaint, which have not been refuted by any evidence and which
must be assumed true at this procedural juncture, the Court cannot
find Wilkerson’s use of the taser was objectively reasonable in
light of those allegations.
Amendment right against excessive force.
Applying the requisite
allegations in the Complaint are sufficient to allege a violation
of that constitutional right, and that the right was clearly
established at the time of the taser incident.
See e.g. King v.
Chide, 974 F.2d 653, 656 (5th Cir. 1992)(finding it “well settled
that if a law enforcement officer uses excessive force in the
course of making an arrest, the Fourth Amendment guarantee against
unreasonable seizure is implicated.”)(citing Graham v. Connor, 490
U.S. 386, 394–95 (1989)).
Thus, the issue again becomes whether
Wilkerson’s having tased Hunter was “objectively unreasonable in
the light of that then clearly established law.”
The test for
requires “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the subject poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”
Graham, 490 U.S. at 396.
As discussed above, although Wilkerson argues that the use of a
attempting to kick out the window of the police car and/or further
destroy the vehicle, and may even had been attempting to escape, no
facts have been introduced to support these arguments. Thus, based
on the allegations in the Complaint, which have not been refuted by
any evidence and which must be assumed true at this procedural
juncture, the Court cannot find Wilkerson’s use of the taser was
objectively reasonable in light of those allegations.
In sum, having conducted the requisite two-step analysis, the
Count finds Wilkerson has not shown that he can avail himself of
the defense of qualified immunity on the Fourth Amendment excessive
force claim and/or the Fourteenth Amendment due process claim
alleged against him in his individual capacity at this procedural
juncture. Accordingly, the Court finds his Motion to Dismiss these
claims on the basis of qualified immunity should be denied.
Heck v. Humphrey, 512 U.S. 477 (1994)
Wilkerson seeks dismissal of Hunter’s Section 1983 claims
under Heck v. Humphrey, 512 U.S. 477 (1994).
Under Heck, “to
unlawfulness would render a conviction or sentence invalid, a
Section 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
[or] declared invalid by a state tribunal authorized to make such
512 U.S. at 486–87.
“A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.”
Id. at 487.
Thus, in cases in which a convict seeks damages under Section 1983,
the district court must consider “whether a judgment in favor of
dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated.”
Hunter does not allege a Section 1983 claim arising from
either unconstitutional conviction or imprisonment.
As such, the
issue before the Court is whether Hunter seeks damages “for other
harm caused by actions whose unlawfulness would render a conviction
or sentence invalid.”
Relevant to this issue, the Fifth Circuit
has held that claims of excessive force are barred under Heck by
convictions such as aggravated assault and battery of an officer.
See e.g. Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000);
Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996).
The Heck bar,
however, does not apply if, by proving an excessive force claim, a
See e.g. Arnold v. Town of Slaughter, 100 F. App’x
321, 323 (5th Cir. 2004).
Thus, whether Heck bars a Section 1983
conviction and the nature of the plaintiff’s claims. Id.
Here, Hunter was convicted of malicious mischief.
destroyed, disfigured, or injured, any property of another, either
real or personal, shall be guilty of malicious mischief.”
CODE ANN. § 97-17-67(1). Having considered the pleadings before it,
the Court finds Hunter’s allegations that Wilkerson used excessive
force by tasing him are not necessarily inconsistent with his
malicious mischief conviction.
In other words, a finding that
Wilkerson’s use of force was unreasonable would not necessarily
mean that Hunter had not “mischievously destroy[ed] ... or cause[d]
to be destroyed ... any property of another.”
Burton, 444 F.3d 391, 401 (5th Cir. 2006).3
See e.g. Ballard v.
Accordingly, the Court
finds Wilkerson’s Motion to Dismiss on the basis of Heck v.
Humphrey, is not well taken and should be denied.
Wilkerson has moved for dismissal of Hunter’s state law claims
of civil assault and battery and intentional/negligent infliction
of emotional distress based on the immunity provided under the
Mississippi Tort Claims Act (“MTCA”).4
Under the MTCA:
An employee may be joined in an action against a
governmental entity in a representative capacity if the
act or omission complained of is one for which the
governmental entity may be liable, but no employee shall
be held personally liable for acts or omissions occurring
within the course and scope of the employee’s duties.
Although not raised in the pleadings, a finding that
Wilkerson’s use of force was unreasonable would likewise not
necessarily mean that Hunter had not disobeyed a traffic signal
or stop sign, the other charge for which he was convicted. See
Mot. to Dismiss, Ex. B.
In his Complaint, Hunter does not allege that his state
law claims have been brought under the MTCA. It is clear,
however, that in Mississippi the MTCA provides “the exclusive
remedy for filing a lawsuit against governmental entities and
[their] employees.” City of Jackson v. Brister, 838 So.2d 274,
278 (Miss. 2003). Additionally, the Complaint does not allege
that Hunter complied with the notice requirements of the MTCA.
The Court will presume, for the purposes of Opinion and Order,
that those requirements have been satisfied.
For the purposes of this chapter an employee shall not be
considered as acting within the course and scope of his
employment and a governmental entity shall not be liable
or be considered to have waived immunity for any conduct
of its employee if the employee’s conduct constituted
fraud, malice, libel, slander, defamation or any criminal
MISS. CODE ANN. § 11-46-7(2)(emphasis added). Here, Wilkerson argues
that he is immune from liability on all claims alleged under the
MTCA because he was acting within the course and scope of his
duties as a Town of Edwards police officer at the time of the
alleged taser incident.
The Mississippi Supreme Court, however,
has found that “[p]hysically abusing a person in custody is not one
of the duties of law enforcement personnel.”
Powell, 917 So.2d 59, 70 (Miss. 2005).
City of Jackson v.
McBroom v. Payne, 2010 WL
3942010, at *9 (S.D. Miss. Oct. 6, 2010)(explaining that claims of
battery, assault, and intentional infliction of emotional distress
“cannot be considered ‘within the course and scope of employment’
under the [MTCA].”); Tyson v. Jones County, Miss., 2008 WL 4602788,
excessive force by a police office would constitute the criminal
offense of assault and, therefore, would not be considered as
having occurred within the course and scope of an employee’s
employment for the purposes of the MTCA).
As the Court cannot
presently determine, based on the unrefuted allegations in the
Complaint, whether the use of the taser in this case constituted
excessive force, the Court cannot determine whether Wilkerson was
acting within the course and scope of his employment at the time of
As such, the Court cannot presently determine whether
the immunity provisions of the MTCA would apply to bar Hunter’s
state law claims against Wilkerson.
Wilkerson also argues that he is entitled to immunity under
Section 11-46-9 of the MTCA because “employees acting within the
course and scope of their employment” cannot be liable for claims:
(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;
(d) Based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty
on the part of a governmental entity or employee thereof,
whether or not the discretion be abused
MISS. CODE ANN § 11-46-9(1)(c) and (d). As discussed above, however,
the Court cannot presently determine whether Wilkerson was acting
within the course and scope of his employment as a police officer
at the time of the tasing incident because the Court has not been
presented any facts to support his arguments that the taser was
used to subdue an allegedly wild detainee and, therefore, did not
constitute the use of excessive force.
See e.g. Powell, 917 So.2d
at 71 (recognizing that “the police may exert physical force in
overcoming resistance during an arrest, but they may only use that
force which is reasonably necessary to respond to the resistance
encountered.”). Additionally, the Court has not been presented any
evidence to show that Hunter was engaged in a criminal act at the
time the taser was used. Although Wilkerson argues that Hunter was
actively engaging in malicious mischief at the time he was tased,
the Court was not presented any evidence in support of this
The only evidence submitted is a court abstract showing
that Hunter was convicted of malicious mischief and was ordered to
pay the cost of replacing some window.
The Court simply cannot
infer from this conviction that Hunter was, in fact, engaging in
malicious mischief at the time he was tased.
See e.g. Estate of
Williams v. City of Jackson, 844 So.2d 1161, 1165 (Miss. 2003)(“In
order for recovery from a governmental entity to be barred because
of the victim’s criminal activity, the criminal activity has to
have some causal nexus to the wrongdoing of the tortfeasor.”).
Thus, based on the unrefuted allegations in the Complaint, which
again must be assumed true at this procedural juncture, the Court
cannot find that Wilkerson was either acting within the course and
scope of his employment as a police officer at the time Hunter was
tased, or that Hunter was actively engaging in criminal activity at
Accordingly, the Court finds Wilkerson’s Motion to
Dismiss, to the extent it seeks dismissal of all state law claims
alleged against him under the immunity provided by the MTCA, should
presently be denied.
For the foregoing reasons:
IT IS THEREFORE ORDERED that Defendant, Antonio Wilkerson’s
Motion to Strike the Supplemental Response [Docket No. 21] is
IT IS FURTHER ORDERED that Defendant, Antonio Wilkerson’s
Motion to Dismiss [Docket No. 14], is hereby granted in part, and
denied in part.
To the extent the Motion seeks dismissal of the 42 U.S.C. §
1983 claims alleged against him in his official capacity on the
basis of qualified immunity, the Motion is denied.
To the extent the Motion seeks dismissal of the 42 U.S.C. §
1983 claims alleged against him in his individual capacity based on
violations of the Fourth Amendment (excessive force) and/or the
Fourteenth Amendment (due process), the Motion is denied.
To the extent the Motion seeks dismissal of the 42 U.S.C. §
1983 claims alleged against him in his individual capacity based on
Fourteenth Amendment (equal protection), the Motion is granted.
To the extent the Motion seeks dismissal of all of the 42
U.S.C. § 1983 claims alleged against him under Heck v. Humphrey,
512 U.S. 477 (1994), the Motion is denied.
To the extent the Motion seeks dismissal of the state law
capacities under the immunity provided by the Mississippi Tort
Claims Act, the Motion is denied.
IT IS FURTHER ORDERED that the immunity related stay entered
in the case [Docket No. 16] is hereby vacated.
The Clerk of Court
is directed to return this case to the active docket of the Court.
IT IS FURTHER ORDERED that counsel for Defendant, Antonio
Wilkerson, shall contact the Chambers of United States Magistrate
Judge Linda R. Anderson within seven days of the date on which this
Opinion and Order is entered and request the scheduling of a Case
SO ORDERED this the 16th day of May, 2012.
s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE
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