Dunn v. Lauderdale County et al

Filing 26

ORDER granting 10 Motion for Summary Judgment for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on November 10, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
STACIE NICHOLE DUNN

PLAINTIFF

V.

CIVIL ACTION NO. 3:15CV352 DPJ-FKB

LAUDERDALE COUNTY, KEN DULANEY,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
WILLIAM D. (BILLY) SOLLIE IS HIS OFFICIAL
CAPACITY AS SHERIFF OF LAUDERDALE COUNTY,
AND JOHN DOE DEFENDANTS 1-10

DEFENDANTS

ORDER
This § 1983 case is before the Court on Defendant Ken Delaney’s Motion for Summary
Judgment [10] pursuant to Federal Rule of Civil Procedure 56. Plaintiff Stacie Nichole Dunn
responded in opposition. The Court, having considered the submissions of the parties, finds that
Delaney’s Motion [10] should be granted.
I.

Facts and Procedural History
On October 2, 2013, agents with the East Mississippi Drug Task Force executed a search

warrant and entered a home in Lauderdale County, Mississippi, where Plaintiff Stacie Nichole
Dunn was “lying in bed with the covers pulled over her head.” Compl. [1] at 3. According to the
Complaint, agents kicked in the unlocked bedroom door, and Defendant Ken Delaney, a deputy
with the Lauderdale County Sheriff’s Department, shot Dunn in the hand. Id. Delaney then
allegedly “pulled her from the bed as she bled profusely from the gunshot wound, handcuffed her
and dragged her by the handcuffs down the hallway of the residence, through the door and
outside the building, greatly exacerbating the injury to her hand.” Id. at 4. Dunn was charged
with possession of methamphetamine, but those charges were later dismissed. Pl.’s Resp. [16] at
2; Def.’s Mot. [10], Ex. D [10-4] (Indictment).

Dunn filed the instant action against Delaney, in his individual and official capacity;
Lauderdale County; and Sheriff Billy Sollie, in his official capacity. She asserts a deprivation of
her civil rights under 42 U.S.C. § 1983 and various state-law claims, including battery; negligent
selection, hiring, retention, training, supervision, and entrustment; and gross negligence. Compl.
[1] at 5 8.
On July 20, 2015, Delaney filed this Motion seeking summary judgment in his favor as to
all claims. When Dunn did not respond, the Court entered an Order to Show Cause. Dunn
responded, apologizing for mis-calendaring the due date, and filed a late Response to the Motion
for Summary Judgment. In reply, Delaney urges the Court to strike the Response as untimely
and grant his Motion as unopposed. The Court declines to adopt that approach, has considered
Dunn’s delinquent Response, and concludes that Delaney’s Motion should be granted.
II.

Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure

when evidence reveals no genuine dispute regarding any material fact and that the moving party
is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate specific facts showing that
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there is a genuine issue for trial.” Id. at 324 (citation and internal quotation omitted).
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not
an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
Rule 56(c)(1) states that a party asserting that a fact “is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials.” (emphasis added). And Rule 56(c)(3)
now states that “[t]he court need consider only the cited materials, but it may consider other
materials in the record.” Finally, “[i]f a party fails to properly support an assertion of fact . . . the
court may . . . grant summary judgment if the motion and supporting materials
facts considered undisputed

including the

show that the movant is entitled to it . . . .” Fed. R. Civ. P.

56(e)(3). With this standard in mind, the Court turns to Delaney’s Motion.
III.

Analysis
Delaney moved for summary judgment on all claims against him. He contends that there

is no evidence he violated Dunn’s constitutional rights and her state-law claims are barred by
various provisions of the Mississippi Tort Claims Act.
A.

Federal Claims

In her Complaint, Dunn asserted claims under the Fourth, Fifth, Sixth, Eighth, Twelfth,
and Fourteenth Amendments in her Complaint. Compl. [1] at 7. But in Response to Delaney’s
motion, Dunn only referred to the accidental shooting, which would fall under the Fourth
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Amendment. See Pl.’s Resp. [16] at 2 (“Delaney . . . shot and wounded the Plaintiff during the
course of the execution of a search warrant.”); id. at 3 (“The Plaintiff would argue that her right
to be secure from the infliction of serious bodily injury is a clearly established entitlement in this
jurisdiction.”); see also Watson v. Bryant, 532 F. App’x 453, 457 (5th Cir. 2013) (analyzing
accidental shooting under the Fourth Amendment). As a result, the Court finds that she has
abandoned all other federal claims against Delaney. Black v. N. Panola Sch. Dist., 461 F.3d 584,
588 n.1 (5th Cir. 2006) (“[Plaintiff’s] failure to pursue this claim beyond [the] complaint
constituted abandonment.”).
1.

Qualified Immunity

As to Dunn’s Fourth-Amendment claim of excessive force, Delaney submits that he is
entitled to qualified immunity under 42 U.S.C. § 1983. Section 1983 precludes deprivation of a
right “secured by the Constitution and laws” of the United States by a person acting under color
of state law. 42 U.S.C. § 1983; Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1988).
Qualified immunity is a shield from individual liability for “‘government officials
performing discretionary functions . . . as long as their actions could reasonably have been
thought consistent with the rights they are alleged to have violated.’” Good v. Curtis, 601 F.3d
393, 400 (5th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
“[Q]ualified immunity generally protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). When a
defendant asserts qualified immunity, the plaintiff has the burden to rebut the defense. Hamptom
v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007). In the summary-judgment
posture, the Court “looks to the evidence before it (in the light most favorable to the plaintiff.)”
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McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (quoting Behrens v.
Pelletier, 516 U.S. 299, 309 (1996) (internal quotation marks omitted)).
Courts use a two-step analysis to determine whether qualified immunity applies. “[A]
court addressing a claim of qualified immunity must determine first whether the plaintiff has
adduced facts sufficient to establish a constitutional or statutory violation.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Second, if a violation has been alleged, the Court must determine “whether [the
officer’s] actions were objectively unreasonable in light of clearly established law at the time of
the conduct in question.” Id. (alteration in original). It is within the lower court’s discretion to
decide which prong of the qualified immunity analysis to address first. Collier, 569 F.3d at 217
(quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
“The defendant’s acts are held to be objectively reasonable unless all reasonable officials
in the defendant’s circumstances would have then known that the defendant’s conduct violated
the United States Constitution or the federal statute as alleged by the plaintiff.” Thompson v.
Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001) (citations omitted). Thus, “[a]n official is
eligible for qualified immunity even if the official violated another’s constitutional rights.” Id.
(citations omitted). Whether the official acted with objective reasonableness is an issue of law
reserved for the Court. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
2.

Fourth Amendment

“Fourth Amendment violations occur only through intentional conduct.” Watson v.
Bryant, 532 F. App’x 453, 457 (5th Cir. 2013) (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 597
(1989)). A negligent, accidental shooting does not violate a plaintiff’s Fourth Amendment rights.
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Id. (collecting cases).
Here, it is undisputed that Delaney, along with other agents, executed a search warrant on
the property based on a controlled sale of methamphetamine. Def.’s Mot. [10], Ex. A [10-1]
(Search Warrant); see also Pl.’s Resp. [16] at 2. Delaney had information that weapons were
also on the premises, so he and the other officers moved from room to room with guns drawn
securing the home. Def.’s Mot. [10], Ex. B [10-2] at 2 4 (Delaney Statement).1 Delaney
explained that as he was entering the bedroom, his foot caught on the carpet at the threshold, he
stumbled, and his gun discharged. Id. at 4. He then saw Dunn in the bed, pushing back the
covers, though there was very little light. Id. He described what happened next,
I got her standing up [ ] because of the discharge I wanna make sure she was okay.
I asked her if she was okay [ ] she responded yes. She said my hands cramping. I
said is that all it is. “My hand’s cramping.” I said okay. I placed her in
handcuffs. I briefly checked her to make, to try to make sure she wadn’t [sic]
injured. . . . She said again that her hand was cramping or I believe she said I
have blood on my hand. I reached down to check again after she was in cuff, [ ]
when I moved her hand to try to see if she was injured, when I pulled my hand
back I did have a small amount of blood on my hand. So we moved her, or I
moved her outta the room through the residence toward the front door so I could
get into the light so I could better see. Once I got her outside I realized that she
was shot basically in the side of the hand just above her wrist. . . . I carried her
over to Chief Deputy Calhoun, I advised him of what happened, advised her she
was injured that she had a gunshot wound to the hand. I turned her over to him
there outside the residence for him to call Metro and get her medical assistance.
Id. at 5. Delaney also specified that Calhoun removed the handcuffs. Id.
In Response, Dunn does not present any evidence to contradict this statement, or any
evidence at all. She merely sets out the two-part test for qualified immunity and states in a
conclusory fashion that “the level of Deputy Delaney’s incompetence that proximately caused her
1

Delaney’s Statement is a transcribed interview conducted by Mississippi Bureau of
Investigation’s Agent Eric Johnson on October 3, 2013.
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injuries is a material issue of fact to be decided by a jury.” Pl.’s Resp. [16] at 3. But Dunn must
“go beyond the pleadings” and “designate specific facts showing that there is a genuine issue for
trial.” Celotex Corp., 477 U.S. at 324 (citation omitted). Conclusory allegations, speculation,
and unsubstantiated assertions are no substitute and will not create a triable issue. TIG Ins. Co.,
276 F.3d at 759. Rule 56(e) of the Federal Rules of Civil Procedure now states that if a “party
fails to properly support an assertion of fact . . . the court may: . . . (2) consider the fact
undisputed for purposes of the motion.” Here, Dunn offers no evidence that could create a
question of fact.
Accordingly, the Court finds that Delaney has presented uncontroverted evidence that the
shooting was accidental, not intentional, and does not rise to the level of a constitutional
violation. He is therefore entitled to qualified immunity. See Watson, 532 F. App’x at 457;
Baskin v. City of Houston, Miss., 378 F. App’x. 417, 418 (5th Cir. 2010) (affirming summary
judgment where officer accidentally discharged his weapon during a scuffle); McCoy v. City of
Monticello, 342 F.3d 842, 847 49 (8th Cir. 2003) (reversing district court’s denial of qualified
immunity where officer’s gun discharged when he slipped on ice).
Moreover, to the extent Dunn is challenging Delaney’s conduct before, during, or
following the shooting, even assuming a constitutional violation has been alleged, Delaney’s
unrebutted statement shows that he acted reasonably under the circumstances. See Graham v.
Connor, 490 U.S. 386, 396 97 (1989) (“The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments
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in circumstances that are tense,

uncertain, and rapidly evolving about the amount of force that is necessary in a particular
situation.”). Summary judgment as to Dunn’s Fourth-Amendment claim is granted.
C.

State-Law Claims

Delaney also sought dismissal of Dunn’s state-law claims as barred by Mississippi Tort
Claims Act one-year statue of limitations and immunity provisions. Dunn failed to respond to
these otherwise meritorious arguments. Accordingly, the Court finds these claims have been
abandoned, and summary judgment is appropriate. See Black, 461 F.3d at 588 n.1.
III.

Conclusion
The Court has considered all arguments raised by the parties; those not addressed in this

Order would not have changed the outcome. Based on the foregoing, the Court finds that
Delaney’s Motion for Summary Judgment [10] should be granted.
SO ORDERED AND ADJUDGED this the 10th day of November, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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