Sanders v. Kemper County Court et al
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 55 Defendants' Motion for Summary Judgment; denying Plaintiff's 58 Motion for Summary Judgment; denying Plaintiff's Motion for Judgment 51 ; denying Motion for Contempt of Court 57 ; denying Plaintiff's Motions to Enforce [61 & 62}; granting Plaintiff's Motion Requesting Trial [60}. Signed by Magistrate Judge Linda R. Anderson on 9/15/2014. (ACF)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RALPH SANDERS
PLAINTIFF
VS.
CIVIL ACTION NO.: 3:13CV906LRA
KEMPER COUNTY and
SHERIFF JAMES MOORE
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter came before the Court on the Defendants’ Motion for Summary Judgment [55]
and the Plaintiff’s Motion for Summary Judgment [58]. For the reasons more fully set out below,
the Court is of the opinion that the Plaintiff’s Motion should be denied, and the Defendants’ Motion
should be granted in part and denied in part.
FACTS
On December 29, 2010, officers from the Mississippi Bureau of Narcotics and the Kemper
County Sheriff’s Department found Ralph Sanders sitting in his car on Highway 21 in Preston,
which is located in Kemper County, Mississippi. According to Kemper County Sheriff James
Moore, MBN Officer Lt. Kevin Gregory informed Moore that Gregory had a warrant to arrest
Sanders for the sale of crack cocaine. The officers pulled over and asked Sanders to get out of his
car. Sheriff Moore says that Officer Gregory then arrested Sanders on the outstanding warrant, and
an MBN officer and some Kemper County deputies searched Sanders’s car. They found marijuana
in the car, and Sanders was also charged with possession of marijuana. Sanders has admitted that
neither Gregory nor Sheriff Moore was directly involved in the search; they were questioning
Sanders about drug sales in the area while the search was occurring. After his arrest, Sanders was
transported to the Kemper/Neshoba Regional Correctional Facility.
Sanders allegedly sold crack cocaine to an undercover agent on September 10, 2010, but a
warrant for his arrest for that crime was not issued until December 29, 2010, which is the day that
his car was searched. The affidavit supporting the warrant was sworn to by Lt. Gregory. The
affidavit states that the sale took place on Highway 21 in Preston, which is in Kemper County, and
it is the same location in which Sanders was found on the day of his arrest.
According to Sanders, no one showed him a warrant at the time that he was arrested or
served a warrant on him. He testified, both at a hearing before this Court and at his deposition, that,
after he was taken to jail, one officer asked another, “What do we charge him with?” The officer
responded that he would be charged with sale of crack cocaine and possession of marijuana. The
warrants for the September sale of cocaine and possession of the marijuana found in his car were
issued on the same date, and both warrants show that they were served on December 30. This is
consistent with Sanders’s testimony that Officer Gregory served both warrants on him in jail on the
day after his arrest.
Sanders’s initial appearance was held in the Justice Court of Kemper County on January 4,
2011, for the charge of sale of cocaine. His bond was set at $25,000.00 and he was appointed
counsel for that charge. The documents related to that appearance indicate that the charges were
filed by Officer Gregory, but they do not mention the charge for possession of marijuana. Sanders
remained in the Correctional Facility on those charges from December 29, 2010, until March 2,
2011, when he was released on a recognizance bond. Sanders says that he came to court on two
occasions after his release, but his case was not called. According to him, he checked with a court
employee to see whether his case was on the docket for the next court date, and she told him that
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it was not. In any event, the parties agree that he failed to appear on that date, and he was charged
with contempt of court in October, 2011.
Sanders was indicted for the crime of sale of cocaine on October 11, 2011. On October 18,
2011, a bench warrant was issued that stated that Sanders was “charged with the crime of Sale of
Cocaine in Kemper County, for failure to appear pursuant to condition of appearance bond . . . .”
The warrant does not mention the possession of marijuana charge. On January 4, 2012, a Kemper
County Circuit Judge signed an agreed order cancelling the bench warrant, prepared by the District
Attorney and defense counsel. On May 1, the court entered an “Order of Nolle Prosequi,” which
stated that the State had moved for the order “due to video showing a 3rd party actually making the
sale and no information as to who this witness/defendant is or why he was not charged . . . .” There
is no indication in the record before the Court as to the disposition of the marijuana possession
charge.
Sanders filed this lawsuit on November 29, 2011, alleging the following facts as relevant to
his claim of a deprivation of his constitutional rights:
Charge with sale of cocaine Dec. 29, 2010, follow order of meeting court date
May 3, 2011 name wasn’t called. Court or appointed attorney told me nothing return
next term; July 2011, 3/days name wasn’t called and no return date again Oct, 2011
next term called and my name wasn’t on court docket Oct 10, 2011. 4 days later Oct.
14, 2011 arrested at my job for failure to appear (287) days later with a warrant and
indictment that do not carry seals and likewise my understanding is the limit to indict
is 3-quarter of a year (275) days or 6 months 180 days. This is over 285 days. I
never heard of such. The indictment nor bench warrant have a seal on them. 78
more days would be a (1) year. The limit to issue Indictment had expired.
Sanders asked for the following relief, “That the court prepare documents correctly, in a timely
manner. Make-up for loss of job, pain and trouble at their jail. (1) million dollars for all stress, loss
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of family time and holidays and lost wages.” At a hearing before this Court, Sanders said that his
primary claim was false arrest, although he also mentioned illegal search and seizure.
ANALYSIS
The Defendants have moved for summary judgment on grounds that Sheriff Moore is entitled
to qualified immunity and that Sanders has not enunciated a constitutional claim against Kemper
County. They argue that there is no constitutional claim against Sheriff Moore because the arrests
were made pursuant to valid arrest warrants. They also argue that there can be no constitutional
violation related to the search because it was incident to the arrest on the charge of selling crack
cocaine. Moreover, they argue, Sanders cannot make out a claim against the Sheriff for failure to
timely indict him, as Moore was not responsible for indicting Sanders. With regard to Kemper
County, the Defendants argue that no constitutional claim has been alleged, and, even if it had been,
Sanders has not established a policy, practice, or custom of the County that caused the violation.
When asked at his hearing why he had sued Sheriff Moore, Sanders testified as follows:
A.
Well, one thing, he wouldn’t come back and try to undo after he did what he
done. I mean, he said at the end, it was him and all these guys, he allowing
all these men in my car.
Q.
Was he present at the start?
A.
He was there. And actually he was standing further – me and him was
standing further than me and you apart now, where I pulled vehicles with my
car. And I said, They better put my stuff back in my car. I’m standing over
at 20 feet from my car, and these people running in and out my car as big as
this table. It’s not as big as the inside of this table.
Later, Sanders was asked whether Sheriff Moore searched his vehicle, and he responded, “As an
officer – he’s the sheriff. He’s in charge of the county, I would think.”
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During his deposition, defense counsel asked Sanders if he knew who had filed the charges
against him. Sanders replied:
A.
I have no idea. All I know, in my best opinion, every county got a sheriff and
the sheriff’s supposed to run the county. So if the sheriff is there standing with
whoever else that’s doing whatever he’s supposed to know what in charge. I mean,
these guys – whether they federal guys or whatever – and I know when they come
in these little counties, the first person they need to check with is the sheriff before
they start doing anything. So, I mean, if they all in one clique when they – when
they come and see you, it’s everybody involved, you know.
Defense counsel followed up his question:
Q.
So you think – you think if MBN was the one that arrested you, you think
Sheriff Moore should have stopped them from doing it?
A.
Well, I think Sheriff Moore or the MBN should have knowed [sic] what they
were talking about when they arrest someone, you know. You just don’t go
arrest someone, say, “ I want to get you for robbing a bank,” and come to
find out, “No, it was a fellow that was a little bit shorter than you that robbed
the bank and looked almost like you, and we don’t know who he is.” You
know, that that – that that ain’t making good sense.
Q.
If – if it was MBN, what should have – what should Sheriff Moore have
done?
A.
Well, like I say, he’s the person in charge.
Sheriff Moore claims that he is protected from liability by the doctrine of qualified immunity,
and he has moved for summary judgment on that basis. When a qualified immunity defense is raised
at the summary judgment stage, the usual burden of proof is altered. Michalik v. Hermann, 422 F.3d
252, 262 (5th Cir. 2005). The plaintiff must then rebut the defense. Id. “[T]he court looks to the
evidence before it (in the light most favorable to the plaintiff) when conducting the [test for qualified
immunity].” Miles v. Rich, No. 13-40427, 2014 WL 3748298 at *1 (5th Cir. July 31, 2014) (quoting
Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). To find that the plaintiff has overcome the qualified
immunity defense, “the court must highlight evidence that, if interpreted in the light most favorable
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to the plaintiffs, identifies conduct by the defendant that violated clearly established law.” Castillo
v. City of Weslaco, 369 F.3d 504, 506 (5th Cir. 2004). If the court denies the motion for summary
judgment, it should outline “‘the factual scenario it believes emerges from viewing the summary
judgment evidence in the light most favorable” to the plaintiff’ and ‘highlight the evidence in the
record supporting its conclusions.’” Miles, at *1 (quoting Castillo, 369 F.3d at 507).
The Court agrees with the Defendants’ argument that Sanders has not stated a claim with
regard to the time between his arrest and indictment. As the Defendants point out, Miss. Code Ann.
§25-31-11(1) gives the district attorney the authority to instigate and prosecute criminal cases, and
to represent the State before the grand jury. Vicarious liability is inapplicable in a lawsuit under §
1983; liability can only be predicated on the individual actions of the defendant. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Sheriff Moore, therefore, cannot be held liable for any delay, nor would
the delay in this case give rise to liability. Defendants correctly argue that, to the extent Sanders
may be arguing a right to a speedy trial, either under the Fourth Amendment or state law, that right
measures the time between indictment and trial. Barker v. Wingo, 407 U.S. 514, 533 (1972); Smith
v. State, 550 So. 2d 406, 408 (Miss. 2006). Pre-indictment delay, however, can also require
dismissal if it “caused actual prejudice to the defendant and . . . was an intentional device used by
the government to obtain a tactical advantage over the accused.” Hooker v. State, 516 So. 2d 1349,
1351 (Miss. 1987). Because Sanders has not presented any facts to show that he satisfies this test,
he cannot prevail on a claim of pre-indictment delay against Sheriff Moore, and the district attorney,
in any event, would have been absolutely immune from suit under § 1983. Patton v. Jefferson Corr.
Ctr., 136 F.3d 458, 463 (5th Cir. 1998).
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The claims related to Sanders’s arrest and the search of his car are more problematic, as the
defense to those claims rests largely on the argument that, prior to the arrest and search on December
29, 2010, Officer Gregory had a valid warrant for Sanders’s arrest for selling crack cocaine. The
Defendants argue, therefore, that because Gregory had a warrant for Sanders’s arrest on drug
charges, he was entitled to search Sanders’s car for evidence of drugs. The Supreme Court has held,
“Police may search a vehicle incident to a recent occupant’s arrest . . . if . . . it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351
(2009). See also U.S. v. Gray, 544 F. App’x 870, 884 (11th Cir. 2013) (“[S]ince an MGPD detective
had probable cause to arrest [the defendant] for possession of cocaine, the search of the vehicle was
also permissible because it reasonably could have yielded further evidence of drug crimes.”
According to this argument, once officers found marijuana in Sanders’s car, Gregory could then
arrest him on that additional charge.
The difficulty with this argument is that Sanders disputes the facts on which it is based, and
he says that no warrant was served on him until the day after his arrest and the search of his car. The
documents themselves appear to support Sanders’s story. As stated earlier, both arrest warrants
were obtained on December 29, the date of the vehicle search and arrest, and both warrants show
that they were served the next day. Sanders’s argument, then, is that, since there was no existing
warrant for his arrest on the charge of sale of cocaine, his December 29 arrest on that charge was
illegal. Moreover, absent a warrant, and there being no showing of probable cause to believe that
he possessed drugs on December 29, the search of his car was illegal. Since his arrest on marijuana
charges was based on the illegal search of his car, that arrest was also illegal.
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Sheriff Moore argues that, even if the arrest or the search were to be held invalid, the fact
that warrants were issued breaks the chain of causation and insulates him from liability. Hand v.
Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988). In Hand, the court held that, where the facts
supporting an arrest warrant are put before an impartial magistrate, even where the officer acts with
malice in procuring the warrant, the chain of causation is broken. Although Hand has never been
overruled, its conclusion appears to be inconsistent with the Supreme Court’s decision in Malley v.
Briggs, 475 U.S. 335 (1986). In any event, the Court does not find that Hand is controlling in this
case. First of all, the court went on to hold, “[T]he chain of causation is broken only where all the
facts are presented to the grand jury, or other independent intermediary, where the malicious motive
of the law enforcement officials does not lead them to withhold any relevant information from the
independent intermediary.” 838 F.2d at 1428. Any omission or commission in relating those facts
“perpetuates the taint of the original official behavior.”
Here, the affidavit supporting the cocaine charge says that Sanders “did unlawfully,
knowingly, and feloniously sell a controlled substance, to with: crack cocaine, to an undercover
operative while located at 3233 Highway 21, Preston, Kemper County, Mississippi . . . .” This is
a conclusory statement that gives no information regarding how Gregory came by this information.
On the basis of this affidavit, the Court cannot determine the veracity or the basis of knowledge of
the information giving rise to the conclusion that Sanders was selling crack cocaine. See Garvis v.
State, 483 So. 2d 312, 315 (Miss. 1986) (“Affidavits containing specific, facially credible details
regarding a suspect and alleged contraband are entitled to greater weight in probable cause
determinations than those employing vague, generally [sic] or merely conclusory language.”); Lee
v. State, 435 So. 2d 674, 676 (Miss. 1983). The lack of specificity in the affidavit, coupled with the
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language in the Order of Nolle Prosequi reciting that the case cannot be prosecuted “due to video
showing a 3rd party actually making the sale and no information as to who this witness/defendant
is or why he was not charged,” makes it questionable whether the official issuing the warrant was
actually apprised of all of the facts surrounding the charge. Also arguing against the use of Hand
is the fact that, by its language, it applies to a charge of illegal arrest. There is no indication that it
should also be applied to an allegedly illegal search undertaken before the arrest warrant was
actually procured.
Finally, Sheriff Moore argues that, whatever circumstances surrounded the search and arrest,
he acted reasonably under the circumstances. He argues that he was entitled to rely on Officer
Gregory’s representation that he had a valid arrest warrant in order to search Sanders’s car. As he
admits in his affidavit, Moore was serving as the elected Sheriff of Kemper County at the time of
the search and arrest. There is no indication that he was serving under the authority of Officer
Gregory, only that he was working with him to investigate narcotics violations in the county. The
fact that he did not actively participate in the search of Sanders’s vehicle does not insulate him from
liability, as his deputies did participate. Moreover, as the Fifth Circuit has recognized, law
enforcement officers who lead a search “are responsible for ensuring that they have lawful authority
for their actions.” Hunt v. Tomplait, 301 F. App’x 355, 360 (5th Cir. 2008). In Hunt, the Fifth
Circuit, relying on a case out of the Ninth Circuit, held that a deputy who lead a search team that
entered the wrong residence could not rely on the fact that he did not personally enter the house to
argue that he was immune from suit. Id. at 360-61 (citing Ramirez v. Butte-Silver Bow Cnty., 298
F.3d 1022, 1027 (9th Cir. 2002). Similarly, Sheriff Moore is not entitled to summary judgment on
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the argument that he did not participate in the search, as he was the leader of the team of deputies
that did.
The Court does, however, agree with the Defendants that, to the extent Sanders is suing
Sheriff Moore in his official capacity, his claims must fail, as do his claims against Kemper County.
A lawsuit against the Sheriff in his official capacity is just another way of suing the county.
Kentucky v. Graham, 473 U.S. 159, 165 (1985); Turner v. Houma Mun. Fire and Police Civil Serv.
Bd., 229 F.3d 478, 483 (5th Cir. 2000). Sanders cannot recover in his claims against Sheriff Moore
or Kemper County unless he shows that a “policy or custom” of the county played a part in the
violation of his constitutional rights. Monell v. Dep’t of Social Services, 436 U.S. 658, 690-091
(1978). Sanders has neither pleaded nor proved such a policy or custom. For that reason, the
Defendants’ Motion for Summary Judgment as to these claims should be granted.
Fed. R. Civ. P. 56(a) provides for the entry of summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Based on this standard, the Court is of the opinion that there are genuine disputes as to
issues of material fact in this case that preclude the entry of summary judgment for the Defendants
on Sanders’s claims of illegal arrest and illegal search and seizure. The Court has also reviewed
Sanders’s Motion for Summary Judgment, in which he seeks judgment in his favor based on his
arrest and the search of his car. Because the Court is of the opinion that there are fact questions
remaining that must be resolved before a finding that either his arrest or the search of his car were
actually illegal, Sanders’s Motion will be denied.
IT IS, THEREFORE, ORDERED that Defendant’s Motion for Summary Judgment [55] is
hereby granted to the extent that Sanders’s claims related to the time period between his arrest and
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indictment, his claims against Sheriff James Moore in his official capacity, and his claims against
Kemper. The Motion is denied with respect to the claims against Sheriff Moore related to Sanders’s
arrest and the search of his vehicle on December 29, 2010. The Plaintiff’s Motion for Summary
Judgment [58] is hereby denied.
IT IS FURTHER ORDERED that Sanders’ Motion for Judgment [51], Motion for Contempt
of Court [57], and Motions to Enforce [61 & 62] are denied. His Motion Requesting Trial [60] is
granted to the extent set forth herein, and the Court will schedule a hearing in the near future.
IT IS SO ORDERED AND ADJUDGED this the 15th day of September, 2014.
/s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
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