Pitts v. City of Madison County, Mississippi et al
ORDER granting in part and deferring ruling in part on 71 Motion for Summary Judgment; denying in part and deferring ruling in part on 73 Motion for Partial Summary Judgment; denying 80 Motion to Strike; denying 85 Motion to Seal. Signed by District Judge Carlton W. Reeves on 12/04/2017. (mm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 3:15-cv-892-CWR-LRA
CITY OF MADISON, MISSISSIPPI, et al.
This cause is before the Court on the Motion for Summary Judgment filed by Defendants
City of Madison, Mississippi; Investigator Cole Terrell; and Chief Gene Waldrop (collectively,
the “Madison Defendants”), Docket No. 48, and on the Motion for Partial Summary Judgment,
filed by Plaintiff Joanne Pitts, Docket No. 73. The Motions are fully briefed and ready for
Facts and Procedure
On the night of May 1, 2014, Joanne Pitts and her brother Jeremy Shedd were driving
separately on Highway 463 in Madison County. Pitts was in a red Chevrolet truck, and Shedd
was in a gray Honda Accord. Both vehicles were owned by Pitts.
City of Madison Investigator Cole Terrell observed the Honda traveling at a very low rate
of speed and swerving between lanes. He conducted a traffic stop. Terrell then smelled marijuana
and asked Shedd to exit the car. A pat down search of Shedd yielded a clear tube of crystal
methamphetamine and a small plastic bag containing marijuana. Terell arrested Shedd. After
Shedd was taken into custody, Pitts’ Honda was searched and seized.1
The search of the Honda yielded a gun and a clear tube containing Xanax. Shedd was charged with driving with a
suspended license, two counts of possession of a controlled substance while in possession of a firearm, and one
count of possession of marijuana while in possession of a firearm. Over a year later, the State dropped all charges
because of “insufficient evidence to obtain a conviction.” Docket No. 71-1 at 6.
Around the same time Shedd was stopped, Agent Clark conducted a traffic stop of the
Chevrolet. Clark identified the driver as Pitts, who admitted that she and Shedd often used drugs
at her home and that Shedd regularly used her Honda to transport drugs.2 Pitts gave consent for
officers to search her home for drugs and was arrested based on an outstanding warrant.3 Officers
subsequently searched her home and found various drugs and drug paraphernalia. Pitts was
charged with possession of marijuana and possession of drug paraphernalia.4
Later that night, Investigator Terrell served both Pitts and Shedd with a Notice of
Intention to Forfeit Seized Property regarding the Honda. The notice instructed that Pitts and
Shedd had 30 days to file a petition for judicial review or the Honda would be forfeited to the
Madison Police Department. A petition was never filed. On June 23, 2014, MPD issued a
Declaration of Forfeiture.
In July 2015, Pitts filed this action in the Madison County Circuit Court. She brought
state claims of civil conspiracy and conversion. In November 2015, she amended her complaint
to include constitutional violations under Section 1983. The action was properly removed to this
Court pursuant to federal question jurisdiction.
The Madison Defendants now seek summary judgment on all claims. Pitts also seeks
partial summary judgment on her Fourteenth Amendment claim, as well as other claims not
included in her Amended Complaint. Specifically, she claims that the Madison Defendants
violated the Excessive Fines Clause of the Eighth Amendment and the Mississippi Constitution
Pitts subsequently submitted an affidavit recanting these admissions and denying loaning Shedd her car to
After Pitts was arrested and her home was searched, Agent Clark and Investigator Terrell met with Pitts at the
detention center and read her the Miranda warning. She then signed a “Voluntary Statement” form, in which she
wrote that she gave the officers consent to search her home.
In September 2015, Pitts was found not guilty of possession of marijuana and pled guilty to possession of
and that the Madison Police Department, as a non-entity incapable of being sued, improperly
sought and obtained title to her Honda.
Summary judgment is appropriate when “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.” Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of identifying the basis for its motion and
the portions of the record that support it. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783
F.3d 527, 536 (5th Cir. 2015). “Once a summary judgment motion is made and properly
supported, the nonmovant must go beyond the pleadings and designate specific facts in the
record showing that there is a genuine issue for trial.” Wallace v. Tex. Tech Univ., 80 F.3d 1042,
1047 (5th Cir. 1996).
When considering a summary judgment motion, the court “must view all facts and
evidence in the light most favorable to the non-moving party.” Juino v. Livingston Parish Fire
Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013) (citation omitted). But “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003)
Qualified immunity “protects government officials from liability from civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation marks and citation omitted). In other words, “qualified immunity generally protects all
but the plainly incompetent or those who knowingly violate the law.” Good v. Curtis, 601 F.3d
393, 400 (5th Cir. 2010). “When a defendant invokes qualified immunity, the burden is on the
plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002).
To determine whether an official is entitled to qualified immunity, the court must
determine: “(1) whether an official’s conduct violated the plaintiff’s constitutional rights, and (2)
whether the right violated was clearly established at the time of the violation.” Poole v. City of
Shreveport, 691 F.3d 624, 637 (5th Cir. 2012) (citation omitted). “For a right to be clearly
established under the second step of the qualified immunity analysis, the contours of that right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Bishop v. Arcuri, 674 F.3d 456, 466 (5th Cir. 2012). “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.”
Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001).
Section 1983 Claims against Investigator Terrell
The parties discuss at great length the Fourth Amendment right to be free from
unreasonable searches and seizure and the Fourteenth Amendment right to procedural due
process.5 Each will be considered below.
Pitts mentions a conspiracy claim but has failed to present any evidence of an agreement between two or more
people. This claim is dismissed. In her discussion of the conspiracy claim, Pitts references a family photo of Terrell
obtained from a posting on Facebook, attached as Exhibit 17 to Plaintiff’s Response. Terrell moved to seal this
photo as private information but failed to provide “clear and compelling reasons” for filing the photo under seal.
L.U. Civ. R. 79(b). As such, the Court denies his Motion.
Pitts argues that the search and seizure of her Honda—the vehicle being driven by her
brother—were unlawful because the traffic stop was “pretextual.”6 Investigator Terrell contends
that the stop, search, and seizure were valid under the Fourth Amendment. The Court agrees with
As an initial matter, Investigator Terrell asserts that Pitts “lacks standing to raise a
constitutional claim” regarding the initial stop of the Honda. Docket No. 79 at 2. He cites no
authority to support this contention.
A vehicle owner’s Fourth Amendment interest in his vehicle is not limited to police
intrusions occurring only while he is present. See United States v. Kye Soo Lee, 898 F.2d 1034,
1038 (5th Cir. 1990) (holding that the renter of a truck had standing to challenge the search of
locked cargo while the truck was operated by others). Though Pitts was not present during the
traffic stop, she maintained a reasonable expectation of privacy when she lent her car to her
brother and therefore has standing.
Initial Traffic Stop
In Whren v. United States, the Supreme Court held that a traffic stop, even if pretextual,
does not violate the Fourth Amendment if an officer has “probable cause to believe that a traffic
violation has occurred.” 517 U.S. 806, 810 (1996). “[P]robable cause to make a traffic stop
exists, inter alia, when a defendant commits a traffic violation and a law-enforcement officer
observes the violation.” United States v. Rosales-Giron, 592 F. App’x 246, 251 (5th Cir. 2014).
Pitts’ Amended Complaint references her “unlawful arrest,” Docket No. 1 at 27, but she has since clarified that she
is not asserting any claims regarding her arrest because such claims “would render her guilty plea to charges to drug
paraphernalia invalid.” Docket No. 14 at 7.
Investigator Terrell pulled over Shedd for careless driving, a violation of Mississippi
law.7 “[A] court must reasonably interpret a wide range of factors when determining carelessness
under the careless-driving statute.” Id. “Mississippi’s careless-driving statute is broadly worded
to encompass drivers who fail to exercise due regard for the width . . . of the streets and
highways.” Id; see, e.g., Henderson v. State, 878 So. 2d 246, 247 (Miss. Ct. App. 2004)
(determining that “swerving off the side of the road or crossing the marker lines constitutes
probable cause for a traffic stop”); Saucier v. City of Poplarville, 858 So. 2d 933, 934 (Miss. Ct.
App. 2003) (finding probable cause where a vehicle decreased its speed, “bump[ed] the
centerline,” then crossed “into the center lane and jerked . . . back into the right lane”).
In his incident report, Terrell states that he observed the Honda “traveling at a very low
rate of speed in a 45 mph zone” and “swerv[ing] from side to side, each time crossing over into
the other lane.” Docket No. 73-2 at 7.8 His observations constituted probable cause to make a
“Warrantless searches are per se unreasonable under the Fourth Amendment, subject to a
few specific exceptions.” United States v. Samuels, 628 F. App’x 322, 322 (5th Cir. 2016) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). In this case, the defense argues that two
exceptions validated the warrantless search of Pitts’ car: (1) Investigator Terrell had probable
cause to believe the car contained drugs; and (2) the search of the car was conducted incident to a
valid arrest. We address each basis in turn.
“Any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade,
curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless
driving.” Miss. Code Ann. § 63-3-1213.
Pitts argues that the dash camera video shows no evidence of careless driving. But she fails to acknowledge that
the camera turned on only after Terrell activated his cruiser’s blue lights.
“It is well settled that warrantless searches of automobiles are permitted by the Fourth
Amendment if the officers have probable cause to believe that the vehicle contains contraband or
other evidence of a crime.” United States v. McSween, 53 F.3d 684, 686 (5th Cir. 1995). “An
officer has probable cause for an arrest when the facts and circumstances within the knowledge
of the arresting officer are sufficient to cause a person of reasonable caution to believe that an
offense has been or is being committed.” Id. at 689 (quotation marks and citation omitted). The
Fifth Circuit has consistently held that the smell of marijuana alone may constitute probable
cause to search a vehicle. See, e.g., United States v. McKeever, 906 F.2d 129, 132 (5th Cir. 1990)
(“Distinctive odors, detected by those qualified to know them, may alone establish probable
Here, Terrell smelled marijuana as he spoke with Shedd at the car window. Terrell told
Shedd to exit the vehicle and conducted a pat down search which revealed a clear plastic tube of
methamphetamine and a small plastic bag of marijuana. Based on these findings, Terrell arrested
Shedd. Terrell therefore had probable cause to search the Honda.
An officer may also search an arrestee’s vehicle when it is “reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” United States v. Beene,
816 F.3d 157 (5th Cir. 2016) (citing Arizona v. Gant, 556 U.S. 332, 343 (2009)). In this case, the
crime of arrest was drug possession. Investigator Terrell had reason to believe that evidence
relevant to this crime was in the Honda, justifying the warrantless search of Pitts’ car.
Either exception to the warrant requirement justified the search of Pitts’ car. Therefore,
the search was valid under the Fourth Amendment.
Lastly, Pitts argues that her car was unlawfully seized by Terrell. The Court disagrees.
The Fifth Circuit has “held that a warrant is not required to seize a vehicle on a public street
when ‘the police have probable cause to believe that the car contains evidence of crime.’” United
States v. Hernandez, 518 F. App’x 270, 271 (5th Cir. 2013) (quotation marks and citation
omitted). As discussed above, Terrell smelled marijuana emanating from the car, and the smell
of marijuana alone constituted probable cause to seize the car. Newton, 463 F. App’x at 466.
Accordingly, the stop, search, and seizure of Pitts’ car were valid. The Court grants
summary judgment to Investigator Terrell as to Pitts’ Fourth Amendment claim.
Under Mississippi law, there are two types of civil forfeiture: administrative and judicial.
If seized property is valued at more than $20,000, the government entity must file a petition for
judicial forfeiture within 30 days from the date of seizure or “the subject property shall be
immediately returned to the party from whom seized.” Id. § 41-29-177.
For property valued at $20,000 or less, however, the government may use administrative
forfeiture. Miss. Code Ann. § 41-29-176. In that case, a government representative must provide
the property owner or any person in possession of the property at the time it was seized with a
notice of intention to forfeit the seized property to include the following information:
(a) A description of the property;
(b) The approximate value of the property;
(c) The date and place of the seizure;
(d) The connection between the property and the violation of the Uniform
Controlled Substances Law;
(e) The instructions for filing a request for judicial review; and
(f) A statement that the property will be forfeited to the seizing law enforcement
agency if a request for judicial review is not timely filed.
Id. After receiving this notice, the interested party then has 30 days to file a petition for judicial
review. If no timely petition is filed, the government entity’s attorney may then prepare a written
declaration of forfeiture.
Once an administrative forfeiture is complete, a federal court “lack[s] jurisdiction to
review the forfeiture except for failure to comply with procedural requirements or to comport
with due process.” United States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996). Due process
requires that notice is “reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the [forfeiture] action and afford them an opportunity to present their
objections.” United States v. Robinson, 434 F.3d 357, 362 (5th Cir. 2005) (quotation marks and
citation omitted). Actual notice is not required. Bailey v. United States, 508 F.3d 736 (citing
Dusenbery v. United States, 534 U.S. 161 (2002)).
In this matter, Pitts does not contend that the Notice was deficient. It is undisputed that
Investigator Terrell served both Pitts and Shedd with a Notice of Intention to Forfeit Seized
Property to initiate the administrative forfeiture of Pitts’ Honda, and that the Notice complied
with each statutory requirement of Mississippi Code § 41-29-176(4).9 Pitts also concedes that she
never filed for judicial review after she received this Notice.
Pitts, however, challenges the process by which Investigator Terrell initiated the
administrative forfeiture of her car. She argues that Terrell intentionally undervalued her Honda
beneath the $20,000 threshold so that it would fall under the provisions of administrative
forfeiture, and place the onus on Pitts to file for judicial review within 30 days. Because the
The Notice included a description of the property (“2013 Honda Accord”), the determined value of the property
(“$19,888”), the date and place of the seizure (“May 1, 2014 in Madison County, Mississippi”), the connection
between the property and the violation of the Uniform Controlled Substances Law (property was used or intended
for use “to transport or facilitate the transportation, sale, receipt, possession, or concealment of controlled substances
or property”), instructions for filing a petition contesting the forfeiture, and a statement that the vehicle would be
forfeited to the Madison Police Department if a request for judicial review was not filed within 30 days. Docket No.
actual value of her car was greater than $20,000, Pitts asserts that Terrell was required to initiate
judicial proceedings within 30 days of the seizure and if he had failed to do so, MPD would have
been required to return the Honda to her, pursuant to Mississippi Code § 41-29-177.
Pitts offers the expert testimony of a car appraiser to support this contention. Based on
this testimony, Pitts argues that the fair market value of her 2013 Honda Accord EX-L Coupe 2D
with a V-6 engine in July 2014 was $25,000—well over the $20,000 line. The value of $19,888
obtained by the MPD, according to the expert, was inaccurately based on a model with “a less
valuable trim level and style” than her car. Docket No. 73-7 at 1-3.
Pitts contends that Terrell has even admitted to intentionally undervaluing her car even
though he could not explain why he did. In a deposition, Terrell testified as follows:
Where did you get the value of $19,888?
Kelley Blue Book.
Did you look at the Blue Book?
And you know you wanted to keep it under $20,000?
MR. GRIFFIN: Object to the form.
Why would you want to keep it under $20,000?
MR. GRIFFIN: Object to the form.
I don’t have a clue.
Docket No. 73-5 at 27.
Terrell, though, disputes how the court reporter recorded his answer on line 15. He
asserts that his actual answer was “I did?” suggesting that he was surprised or confused by the
accusation. Docket No. 78-2. Two months after Terrell’s deposition was taken, however, the
court reporter was asked to review her audio recording to determine whether there should be a
period or question mark after the answer “I did.” After listening to the recording several times in
the presence of counsel for both parties, she stood by her original certification: “I did.”10
Still, Terrell argues that Pitts should have challenged the valuation by filing for judicial
review. In not doing so, she waived her opportunity to challenge the forfeiture of her car. The
Court disagrees. The evidence demonstrates there is a genuine dispute as to whether Terrell
purposefully undervalued Pitts’ car so that it would fall under the provisions of administrative
Having found a constitutional violation, we turn to the second prong of qualified
immunity. Pitts must show that Terrell’s actions were objectively unreasonable in light of clearly
established law. Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).
This analysis is complicated, and the Court is not ready to rule on the issue of qualified
immunity today. Investigator Terrell’s conduct is very concerning, but it is unclear from the
parties’ briefs: (1) whether Pitts has alleged a violation of a right in light of clearly established
law, and (2) whether Terrell’s conduct was objectively reasonable according to the established
law.11 The Court will set a hearing at which the parties should be prepared to present case law
addressing these two questions.
On March 17, 2017, the parties sent several emails and documents to Chambers, including the affidavit of Cynthia
Johnson, the court reporter who transcribed Terrell’s deposition and certified her original transcription of line 15,
page 27. Johnson’s affidavit renders Pitts’ Motion to Strike Exhibit 2 Errata Sheet moot.
We do know, for example, that officers are stripped of their qualified immunity when they knowingly and
intentionally or with reckless disregard for the truth, make false statements in affidavits to support the issuance of a
search warrant or providing evidence at a suppression hearing. See Golino v. City of New Haven, 950 F.2d 864, 871
(2d Cir. 1991). In the context of seeking a warrant, “[a]n officer can ‘have no reasonable grounds for believing that a
warrant was properly issued’ ‘if the magistrate or judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the
truth.’” Id. (quoting, United States v. Leon, 468 U.S. 897, 923 (1984)). While we acknowledge there appears to be
some confusion as to whether officers retain the shield of qualified immunity for certain conduct, see Melton v.
Phillips, 875 F.3d 256 (5th Cir. 2017) (Costa, J., concurring), the question here is whether Terrell’s allegedly
intentional and deliberate manipulation of the value of Pitts’ vehicle when the motive for doing so is to deprive Pitts
of her property should strip him of qualified immunity.
Section 1983 claims against the City of Madison12
A plaintiff may hold a municipality liable for deprivations of constitutional rights
undertaken pursuant to municipal policy. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978). “Municipal liability under section 1983 requires proof of three elements: (1) a
policymaker; (2) an official policy; and (3) violation of constitutional rights whose moving force
is the policy or custom.” Bishop, 674 F.3d at 467 (citation omitted).
An official policy is “a policy statement, ordinance, regulation or decision that is
officially adopted and promulgated by the municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority.” Brown v. Bryan Cty., Okla., 219
F.3d 450, 457 (5th Cir. 2000) (quotation marks and citations omitted). An official policy is also
found where “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.” Id.
Before the municipality is found culpable, the plaintiff must also provide “evidence that
the municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Id. More than negligence, deliberate indifference requires “proof that a
municipal actor disregarded a known or obvious consequence of his action.” Id.
Policy or Custom
Pitts has failed to meet this standard. She lacks any evidence identifying an official
policymaker that promulgated the City’s allegedly unconstitutional policy. Although she names
The claims against Investigator Terrell and Chief Waldrop in their official capacities are analyzed identically to the
claims against the City of Madison, as “a suit against an official in his official capacity is no different from a suit
against a governmental entity.” Idom v. Natchez-Adams Sch. Dist., 115 F. Supp. 3d 792, 798 (S.D. Miss. 2015)
(quotation marks and citation omitted).
Madison’s Chief of Police, Gene Waldrop, as a defendant, she does not direct the Court to any
evidence in the record that Waldrop was an official policymaker. Even if an official policymaker
were identified, it is still unclear that Pitts could establish a violation under Monell. Pitts has not
shown that the City has a policy of violating the due process rights of citizens whose property
has been seized.
Pitts contends that “the City of Madison had a policy or practice of purposely
undervaluing seized property and trained their employees to value seized property under
$20,000.” Docket No. 76 at 20. Pitts relies exclusively on Investigator Terrell’s admission that he
intentionally undervalued Pitts’ car. But a single incident fails to “provide context that would
show a pattern of establishing a municipal policy.” Peterson v. City of Fort Worth, Tex., 588 F.3d
838, 851 (5th Cir. 2009) (emphasis added). She has provided no other instances of MPD officers
undervaluing seized property. Accordingly, Pitts has failed to demonstrate a “pattern so common
and well-settled as to constitute a custom that fairly represents municipal policy.” Id. at 852
(citation omitted).13 Based on this record, the City is entitled to summary judgment on this claim.
Failure to Supervise or Train
“In a § 1983 claim for failure to supervise or train, the plaintiff must show that: (1) the
supervisor either failed to supervise or train the subordinate official; (2) a causal link exists
between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the
failure to train or supervise amounts to deliberate indifference.” Goodman v. Harris Cty., 571
F.3d 388, 395 (5th Cir. 2009) (quotation marks and citation omitted). “To establish deliberate
Pitts also points to Terrell’s testimony that this was standard practice, and that he was taught these practices
through “training from numerous people at [the] Madison Police Department.” Docket No. 76 at 21. But Pitts
stopped there. There is no other evidence about what this training entailed. What was the substance of the training?
Who provided it? When was it provided? Who authorized the training and was that alleged training adopted or
sanctioned by the City’s policymakers?
indifference, a plaintiff usually must demonstrate a pattern of violations and that the inadequacy
of the training is obvious and obviously likely to result in a constitutional violation.” Id.
Pitts contends that this testimony shows Terrell’s lack of knowledge and proper training
regarding the valuation of seized vehicles. But Pitts has not attempted to establish a pattern of
alleged violations; she again relies on a single incident of undervaluing seized property. Pitts
cannot establish deliberate indifference on this thin record. Therefore, summary judgment will be
granted to the City on Pitts’ failure to supervise or train claim.
State Law Claims
Pitts has sought damages for conversion and violations of her rights under the Mississippi
Constitution. Because Defendants are a municipality of Mississippi and its employees, her state
law claims are governed by the Mississippi Tort Claims Act. Roderick v. City of Gulfport, Miss.,
144 F. Supp. 2d 622, 637 (S.D. Miss. 2000). The law “requires that anyone making a claim for
injury arising under the provisions of the MTCA must file a written notice of the claim with the
chief executive officer of the government entity ninety days prior to commencing an action
against the entity or employee of the entity.” Gale v. Thomas, 759 So. 2d 1150, 1158 (Miss.
1999) (citing Miss. Code Ann. § 11-46-11(1), (2)); see also Barnes v. Singing River Hosp. Sys.,
733 So.2d 199, 202 (Miss. 1999) (“The Mississippi Legislature has conclusively stated that the
one-year statute of limitations set out in § 11-46-11(3) applied to all actions against
governmental entities under the Mississippi Tort Claims Act, regardless of any other statutes of
limitations that would otherwise apply.”).
Pitts has failed to demonstrate that she has met this notice of claim requirement. “Such an
act is a jurisdictional prerequisite which must be fulfilled before a plaintiff may file suit.”
Simpson v. City of Pickens, Miss., 887 F. Supp. 126, 130 (S.D. Miss. 1995). As such, Pitts’ state
law claims against the City must be dismissed. Roderick, 144 F. Supp. at 637.
What remains are Pitts’ individual-capacity claims against Terrell. Mississippi law
provides that “no employee shall be held personally liable for acts or omissions occurring within
the course and scope of the employee’s duties.” Miss. Code Ann. § 11-46-7(2); see Roderick,
144 F. Supp. at 638 (finding that city officers could not be held personally liable for denial of
due process rights under Mississippi State Constitution as long as they were acting in their
official capacities). But an employee is not acting within the scope of his employment if his
conduct constitutes “fraud, malice, libel, slander, defamation or any criminal offense.” Miss.
Code Ann. § 11-46-7(2).
Defendants argue that Pitts’ state law claims against Terrell are barred by immunity
because he was acting within the scope of his employment. Pitts has shown no evidence of fraud,
malice, or criminal conduct. The Court accordingly dismisses Pitts’ state claims against Terrell
in his individual capacity.
New Allegations Raised at Summary Judgment
Pitts raises two claims for the first time in her Partial Motion for Summary Judgment. She
contends that (1) the Madison Defendants violated the Excessive Fines Clause of the Eighth
Amendment of the U.S. Constitution and the Mississippi Constitution, and (2) “the Madison
Police Department, as a non-entity incapable of being sued, improperly sought and obtained
title” to her Honda. Docket No. 74. at 1.
“A properly pleaded complaint must give ‘fair notice of what the claim is and the grounds
upon which it rests.’” De Franceschi v. BAC Home Loans Servicing, L.P., 477 F. App’x 200, 204
(5th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 698-99 (2009)). At the summary
judgment stage, plaintiffs who wish to assert a new claim must amend their complaint in
accordance with Federal Rule of Civil Procedure 15(a). Fisher v. Metropolitan Life Ins. Co., 895
F.2d 1073, 1078 (5th Cir. 1990). As such, Pitts cannot amend her Complaint by adding new
claims in her summary judgment briefs. See United States ex rel. DeKort v. Integrated Coast
Guard Sys., 475 F. App'x 521, 522 (5th Cir. 2012) (concluding that the district court did not err
in denying plaintiff’s motion for partial summary judgment because he attempted to raise a new
claim not asserted in his fifth amended complaint). The Court therefore denies Pitts summary
judgment as to these claims.
The Court grants summary judgment to the Madison Defendants on all claims, except for
Plaintiff’s Fourteenth Amendment claim against Investigator Terrell in his individual capacity.
The remaining issue is deferred for resolution at a hearing.
SO ORDERED, this the 4th day of December, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?