Montgomery v. Warren County et al

Filing 21

ORDER denying 8 Motion to Dismiss; granting 14 Motion to Amend/Correct Signed by Honorable David C. Bramlette, III on 12/27/2011 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ERNEST MONTGOMERY
V.

PLAINTIFF
CIVIL ACTION NO. 5:11-cv-00004-DCB-JMR

WARREN COUNTY, DEPUTIES BILLY HIGGINS,
MICHAEL HOLLINGSWORTH AND CHRIS SATCHER,
IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause comes before the Court on the Defendants’ Motion
for Qualified Immunity, alternatively styled as a Motion to Dismiss
or a Motion for Summary Judgment [docket entry no. 8], and the
Plaintiff’s Motion to Amend the Complaint [docket entry no. 14].
Having considered said Motions, the Parties’ opposition thereto,
applicable statutory and case law, and being otherwise fully
advised of the premises, the Court finds and orders as follows:
I. Facts and Procedural History
Montgomery filed his Complaint against the Defendants in
Warren County Circuit Court and the case was removed to this Court
on January 12, 2011. In his Amended Complaint [docket entry no. 142],1 Montgomery alleges the following facts: he was involved in a

1

The Court will grant Montgomery leave to amend the Complaint
and rely on the Amended Complaint throughout this Opinion. See FED .
R. CIV. P. 15(a). The Defendants’ objections to Montgomery’s request
are noted; however, the Court finds, contrary to the Defendants’
assertions, that the Amended Complaint does state a valid excessive
force claim, see infra, and that the Defendants have had the
opportunity to rebut this claim. See Defendants’ Response to Motion
to Amend, docket entry no. 16 ¶ 9. There are no factors present
that counsel against application of the default rule that a
complaint is freely amendable. See FED . R. CIV . P. 15(a); Foman v.

car accident; he fled the scene; he eventually arrived at his
girlfriend’s

apartment;

while

there,

he

was

attacked

by

the

Defendants.2 Before the start of discovery, the Defendants filed
their present Motion styled as a motion to dismiss or summary
judgment motion based on qualified immunity.3 Instead of providing
an alternative narrative of the events which give rise to the
Amended

Complaint,

Montgomery’s

the

Warren

Defendants

County

Justice

support
Court

their

Motion

convictions,

with
which

indicate that he was found guilty in of resisting arrest and
fleeing the scene of the accident on the same day he was allegedly
attacked by the Deputies. The Defendants’ primary argument is that
Heck

v.

Humphrey

bars

any

claims

against

them

because

all

Montgomery’s claims imply the invalidity of these convictions.

Davis, 371 U.S. 178, 182 (1962).
2

9.
10.
11.
12.

The Amended Complaint states:

On or about November 26, 2009, Plaintiff was involved in a
vehicular accident.
After leaving the scene of the accident, Plaintiff was
accosted, and attacked by the Defendant Deputies, while at his
girlfriend’s apartment.
Defendant Deputies attacked Plaintiff, beating and tasering
him.
As a result, Plaintiff was caused to suffer physical, mental,
and emotional injuries, including, but not limited to, a
broken nose, lacerations, and multiple abrasions to his face,
back, and head.
3

The Motion was docketed as a motion to dismiss, but titled
more generically as a motion for qualified immunity.
2

II. Analysis
A. Whether the Defendants’ Motion Should Be Considered a Motion to
Dismiss or a Motion for Summary Judgment
1. Motion to Dismiss and Motion for Summary Judgment Standards
As Wright and Miller notes, “The issue of qualified immunity
is often resolved on motion for summary judgment.” 13D Wright,
Miller, Cooper, & Freer, 13D Federal Practice and Procedure §
3573.3, pg. 622 (3d. ed). It is not uncommon, however, for a
district court to consider the issue of qualified immunity in a
motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662
(2009). The well-known standards a district court applies in its
evaluation of these motions are different and distinct, with the
motion-to-dismiss standard relying entirely on the face of the
complaint and the summary-judgment standard weighing the evidence.
See Castillo v. City of Weslaco, 369 F.3d 504, 506-07 (5th Cir.
2004) (citing Beherns v. Pelletier, 516 U.S. 299, 309 (1996)). The
Supreme Court has articulated how these standards apply once a
defendant asserts entitlement to qualified immunity:
Unless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal
before the commencement of discovery. Even if the
plaintiff’s complaint adequately alleges the commission
of acts that violated clearly established law, the
defendant is entitled to summary judgment if discovery
fails to uncover evidence sufficient to create a genuine
issue as to whether the defendant in fact committed those
acts.

3

Behrens, 516 U.S. at 307-08 (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)).
2. Motion-to-Dismiss Standard Applicable
The Defendants are attacking Montgomery’s Amended Complaint
with evidence not referred to in the challenged pleading, and
typically the Court would consider this “beyond-the-pleadings”
approach as an invitation to treat their present Motion as a motion
for summary judgment. See Murphy v. Inexco Oil Co., 611 F.2d 570,
573 (5th Cir. 1980); see also generally, 5C Wright & Miller,
Federal Practice and Procedure § 1366 (3d. ed.). However, the
Defendants’ qualified immunity claim relies exclusively on Heck v.
Humphrey, 512 U.S. 477 (1994). When a defendant raises qualified
immunity under Heck, it is permissible for a district court to
consider evidence of the plaintiff’s conviction in a motion to
dismiss,

even

when

that

evidence

technically

qualifies

as

extraneous. See, e.g., Johnson v. McElveen, 101 F.3d 423 (5th Cir.
1996) (considering the plaintiff’s state court conviction in a
motion to dismiss); Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996)
(same), Connors v. Graves, 538 F.3d 373 (5th Cir. 2008). Therefore,
the Court will consider Montgomery’s state court convictions only
as they pertain to the Defendants’ Heck argument and will interpret
the present Motion as a motion to dismiss.
3. Summary Judgement Motion Premature
As

a

corollary

to

this

decision,

4

the

Court

declines

to

consider the Defendants’ Motion under the more demanding summaryjudgment standard and will limit its inquiry to the face of the
Amended Complaint. In their latest pleading, the Defendants state
that the Court must dismiss Montgomery’s claims because he has not
produced “genuine and triable” evidence to rebut their invocation
of

immunity;

see

docket

entry

no.

19,

however,

to

require

Montgomery to produce “genuine and triable evidence” supporting his
claims before the commencement of discovery is inconsistent with
the Supreme Court’s instruction in Behrens. 516 U.S. at 307-08. The
Defendants will have the opportunity to refile a motion for summary
judgment based on qualified immunity after the discovery period has
run.
B. Whether the Defendants Are Entitled to Qualified Immunity from
Plaintiff’s § 1983 Claims
1. Qualified Immunity
“The qualified-immunity defense ‘shield[s] [government agents]
from liability for 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) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Until relatively recently, pursuant to the
instruction of Saucier v. Katz, 533 U.S. 194 (2001), a district
court was mandated to follow a “rigid order of battle” in its
determination of whether a defendant was entitled to qualified
immunity. Pearson, 555 U.S. at 235 (quoting Brosseau v. Haugen, 543
5

U.S. 194, 201–202 (2004) (Breyer, J., concurring)). The prescribed
sequence required a district court to first consider whether a
constitutional right was violated and only then, after finding in
the

affirmative,

to

inquire

whether

that

right

was

clearly

established. Pearson, 555 U.S. at 232 (citing Saucier, 533 U.S.
194). However, courts no longer are instructed to follow any
particular order, Pearson, 555 U.S. at 236, and need only determine
whether there has been a violation of a clearly established right,
or in this case, whether the plaintiff has alleged a violation of
a clearly established right in his Amended Complaint. Behrens, 516
U.S. at 307-08.
2. Excessive Force
In his Amended Complaint, Montgomery claims the Defendants
violated his due process, equal protection, and Fourth Amendment
rights.4 Montgomery appears to argue that the Defendants lacked
probable cause to stop his vehicle initially,5 and following this

4

Montgomery groups his due process and equal protection
claims together into what the Court understands is a general
Fourteenth Amendment violation, i.e., that he was deprived of
“life, liberty, or property, without due process of law . . . [and
denied] the equal protection of the laws.” See U.S. CONST . amend.
XIV § 1. Because both Parties fail to brief Montgomery’s equal
protection claim and because the facts do not allege any unequal or
discriminatory treatment on the part of the Defendants, the Court
will consider Montgomery’s Fourteenth Amendment violation as
stemming solely from the Due Process Clause and will disregard his
equal protection claim.
5

Montgomery pled guilty to improper passing or turning, but
the charges of driving with a suspended licence, disorderly conduct
and failure to comply, improper/expired tag, and seat belt
6

stop, the Defendants violated his rights when they used excessive
force by attacking him in his girlfriend’s apartment.
With respect to his Fourteenth Amendment due process claim,
Montgomery advances the theory that the Defendants violated his
substantive

due

process

right

to

bodily

integrity

when

they

attacked him in a manner that shocked the conscience. See Doe v.
Taylor Ind. School Dist., 15 F.3d 443, 450-51 (5th Cir. 1994);
Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337 (5th Cir.
2001). Because Montgomery apparently concedes that the Defendants’
actions were related to his arrest6--whether unlawful or not--his
claims are properly characterized as Fourth Amendment claims, not
Fourteenth Amendment claims. Graham v. Connor, 490 U.S. 386, 395
(1989). In Graham v. Conner, the Supreme Court unequivocally stated
that “all claims that law enforcement officers have used excessive
force--deadly or not--in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach.” Id.; Estate of Bennett
v. Wainwright, 548 F.3d 155, 163 (1st Cir. 2008). Thus, the Court
considers Montgomery’s § 1983 claim a Fourth Amendment excessive
force claim. See also, Shelton v. City of Laurel, No. 2:06-cv-

violation were either dismissed or he was found not guilty. See
Records of Warren County Justice Court, docket entry no. 10-1.
6

See Plaintiff’s Memo., pg. 4, docket entry no. 11.
7

111-DCB, 2007 WL 1141501 (S.D. Miss. April 17, 2007).
For Montgomery to state a valid 42 U.S.C. § 1983 claim for a
violation of his Fourth Amendment right to be free of excessive
force, he must allege: (1) “an injury that (2) resulted directly
and only from the use of force that was excessive to the need, and
(3) the use of force that was objectively unreasonable.” Stepney v.
City

of

Columbia,

695

F.

Supp.

2d

412,

417

(S.D.

Miss.

2010)(quoting Bush v. Strain, 513 F.3d 492, 500–01 (5th Cir.
2008)). This Court considers three factors in particular when
evaluating the “objective reasonableness” of a defendant’s actions:
“(1) the severity of the crime, (2) whether the plaintiff posed an
immediate threat to the safety of the officer or others, and (3)
whether

the

plaintiff

was

actively

resisting

arrest

or

was

attempting to evade arrest.” Shelton, 2007 WL 1141501, at *4
(citing Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th
Cir. 1998)).
In his Amended Complaint, Montgomery clearly alleges that the
Defendants

acted

with

reckless

disregard

for

his

safety

by

attacking him in his girlfriend’s apartment causing significant
injuries, meeting the first two elements of an excessive force
claim. See Amended Complaint, docket entry no. 10-2 ¶¶ 10-12.
Further, under the three factors for assessing the objective
reasonableness of the Deputies’ actions, the underlying crime for
which Montgomery was convicted--improper passing or turning--is not

8

a particularly severe one, and there is no way to tell from the
facts in the Amended Complaint whether he posed any threat to the
safety of the Deputies. As to whether Montgomery was actively
resisting

arrest,

the

Defendants

have

not

alleged

any

facts

connecting Montgomery’s resisting arrest and fleeing the scene
conviction

to

the

injuries

he

sustained.

Moreover,

even

if

Montgomery was actively resisting arrest, it would not necessarily
foreclose an excessive force claim if other factors were present.
See Gutierrez, 139 F.3d at 447 (stating that the court should
“balance

the

nature

and

quality

of

the

intrusion

on

the

individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.”) (internal quotations omitted)).
Accordingly, Montgomery has alleged a constitutional violation for
excessive force and that violation was clearly established at the
time of the incident, see Graham, 490 U.S. at 395 (defining the
contours of an excessive force claim more than two decades before
the alleged incident), and therefore his Complaint is sufficient to
survive dismissal.
C. Whether Heck v. Humphrey bars Montgomery’s Claims
1. Heck v. Humphrey
The Defendants contend that the Supreme Court’s holding in
Heck v. Humphrey bars Montgomery’s § 1983 claims against them. See
512 U.S. 477 (1994). They correctly assert that Heck precludes any
§ 1983 claim that would “necessarily require the plaintiff to prove

9

the unlawfulness of his conviction.” Id. at 486. In order for the
Court to determine whether Heck is indeed applicable, it must first
establish the elements which compose Montgomery’s justice court
convictions. See, e.g., Ballard v. Burton, 444 F.3d 391, 399 (5th
Cir. 2006)(outlining the elements of the plaintiff’s criminal
convictions before engaging in a Heck analysis); Arnold v. Town of
Slaughter, 100 Fed. Appx. 321, 323 (5th Cir. 2004) (unpublished
op.)

(same);

Hudson

v.

Hughes,

98

F.3d

868,

873

(5th

Cir.

1996)(same). As the Defendants provide little legal argument in
this regard and even fewer facts, this Court treads carefully in
considering the effect of his convictions, and as is required in
all motions to dismiss, resolves any ambiguity and uncertainty in
favor of the nonmovant. See, e.g., Jones v. Alcoa, Inc., 339 F.3d
359, 362 (5th Cir. 2003).
The

Warren

County

Justice

Court

records

indicate

that

Montgomery was found guilty of resisting arrest and leaving the
scene

of

an

accident.

With

respect

to

the

resisting

arrest

conviction, the Court can presume he violated Mississippi Code
Annotated § 97-9-73. That statute provides:
It shall be unlawful for any person to obstruct or resist
by force, or violence, or threats, or in any other
manner, his lawful arrest or the lawful arrest of another
person by any state, local or federal law enforcement
officer, and any person or persons so doing shall be
guilty of a misdemeanor, and upon conviction thereof,
shall be punished by a fine of not more than Five Hundred
Dollars ($500.00), or by imprisonment in the county jail
not more than six (6) months, or both.

10

As to his leaving the scene conviction, the Court surmises that he
was convicted of either Mississippi Code Annotated § 63-3-401, §
63-3-403, § 63-3-407, or § 63-3-409, all of which impose varying
duties on a driver of a vehicle who has been involved in an
accident depending on the degree of damage or injury caused by the
accident.7 It is not necessary to know the exact hit-and-run
statute Montgomery violated as each violation is predicated on
whether or not he left the scene of the accident. Further, while
the Defendants do not specify exactly which justice court violation
would be undermined by Montgomery’s claims, the Court believes that
it is the resisting arrest conviction on which they primarily rely.
2. Whether an Excessive Force Claim Implies the Invalidity of
a Resisting Arrest Conviction
As mentioned above, Montgomery does not appear to dispute that
the incident was related to his car accident or even that he fled
the scene following the accident. What he does contend is that he
was not engaged in criminal activity at the time he allegedly
sustained his injuries. The Court finds this assertion plausible.
There are no facts to suggest that Montgomery resisted arrest at
the time that the Defendants allegedly used excessive force against
him. For instance, Montgomery could have resisted arrest when he

7

Section 63-3-401 can likely be ruled out since violation of
that statute is considered a felony and the potential fines and
jail time exceed the jurisdiction of the justice court. See Corbin
v. State, -- So. 3d ---, --- So.3d ----, 2011 WL 4389740, at *4-*5
(Miss. September 22, 2011).
11

fled the scene of the accident but later could have attempted to
comply with the officers when he suffered his injuries. Moreover,
even if the injuries which Montgomery sustained were more closely
related in time to his attempt to unlawfully resist arrest, that
does not mean that the Deputies at some point during or after his
unlawful resistance could not have used excessive force. This
conclusion would suggest that any state action that stems from a
misdemeanor conviction for resisting arrest would be barred under
Heck,8 and such a reading would be imprudent as state officers
would be shielded from potential liability even if their actions
were incongruent with the actions of the arrestee. See, e.g.,
Arnold, 100 Fed. Appx. at 323 (unpublished op.) (“How Heck applies
to excessive force claims is not always clear. By proving an
excessive force claim, a plaintiff will not invariably invalidate
his conviction.”). In sum, courts have not countenanced the broad

8

The Court recognizes that some criminal convictions per se
bar some § 1983 claims, regardless of the facts. Heck itself
concerned a § 1983 suit for malicious prosecution. See Heck v.
Humphrey, 512 U.S. 477 (1994). Heck claimed that his prosecutor
obtained his criminal conviction by, among other things,
intentionally destroying exculpatory evidence. Id. at 479. The
Supreme Court regarded Heck’s suit as a collateral attack against
his state court convictions and stated that the proper course for
Heck to purse his claims would be in appellate or habeas
proceedings. Id. at 484-85. There is no question that a malicious
prosecution claim for the successful prosecution of the criminal
conviction would per se imply the invalidity of the criminal
conviction.
12

reading of Heck advanced by the Defendants.9
D. Whether Montgomery’s State
Mississippi Tort Claims Act

Law

Claims

Are

Barred

by

the

1. Immunity for Deputies Acting Within the Scope of Their
Duties Under the Mississippi Tort Claims Act
Montgomery has also alleged two state law claims against the
Defendants in their individual and official capacities: Intentional
and/or Negligent Infliction of Emotional Distress and Civil Assault
and Battery. Here again, the Defendants do not question the facial
sufficiency of the Amended Complaint and instead rely entirely on
immunity under the Mississippi Tort Claims Act (“MCTA”). The
Defendants claim that, as officers acting within the scope of their
employment in arresting Montgomery, they are immune from suit.
Section 11-46-9(1)(c) of the Mississippi Code provides:
(1) A governmental entity and its employees acting within

9

It is true, as the Defendants point out, similar factual
situations have arisen in which courts have applied Heck’s holding
to bar a plaintiff’s claims against an arresting officer. However,
the Court’s analysis for the purposes of applying Heck turns on the
elements of the conviction, not the similarity of facts. For
instance, in Hudson v. Hughes, the Fifth Circuit held that the
plaintiff’s conviction of battery of a police officer necessarily
implied the invalidity of his excessive force claim. 98 F.3d 868
(5th Cir. 1996). The court’s decision was predicated on the fact
that under Louisiana law self-defense is considered a valid defense
to a battery charge and therefore imposing liability for any harm
that the officer inflicted upon the plaintiff would have implied
the invalidity of the plaintiff’s battery conviction. Id. at 873.
In contrast, under Mississippi law, an individual can be found
guilty of resisting arrest by the use of threats or “in any other
manner.” See MISS . CODE ANN . § 97-9-73. It cannot be implied from his
conviction that Montgomery initiated any physical contact with the
Deputies and therefore there is no indication that any force was
necessary.
13

the course and scope of their employment or duties shall
not be liable for any claim:
. . . .
(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.
To be immune under the statute, the Deputies must have (1) acted
within the scope of their employment and (2) without reckless
disregard. Further, for Montgomery to recover, he must not have
been engaged in criminal activity at the time of the incident.
Neither Party disagrees that the MCTA is the exclusive remedy for
Montgomery’s state law claims against the Deputies acting in their
official

capacities.

MISS .

CODE .

ANN .

§

11-46-5(1).

Nor

does

Montgomery challenge the Defendants’ assertion that they were
acting in their official capacity. The facts as pled, if true,
indicate that the Deputies acted either intentionally or with
reckless disregard. See Amended Complaint ¶¶ 12, 15.10
2. Whether There Is a Causal Nexus Between Montgomery’s
Convictions and the Deputies’ Alleged Actions
The more difficult question--and the one that the Parties

10

As a practical matter, for Montgomery’s tort claims to
overcome this statutory immunity provision, he must allege causes
of action which contain an element of intent surpassing ordinary
negligence. His assault and battery claim and intentional
infliction of emotional distress claim obviously clear this hurdle;
however, he may not recover for negligent infliction of emotional
distress.
14

primarily address--is whether Montgomery was engaged in criminal
activity at the time of the incident, which would foreclose his
ability to recover under the MCTA. The Mississippi Supreme Court
has construed section 11-46-9(1)(c)’s immunity provision to apply
only if there is some “causal nexus” between the plaintiff’s
criminal activity and the defendant’s tortious acts. Estate of
Williams v. City of Jackson, 844 So. 2d 1161, 1165 (Miss. 2003);
Shelton, 2007 WL 1141501, at *7. In other words, if the plaintiff’s
criminal activity did not cause the alleged tortfeasor’s conduct,
then section 11-46-9(1)(c) would not shield the tortfeasor from
liability. City of Jackson v. Perry, 764 So. 2d 373, 379 (Miss.
2000).
The

Defendants’

contention

that

they

are

immune

from

Montgomery’s state law claims under the MCTA fails for the same
reasons their immunity argument failed under Heck. The Defendants
have attached Montgomery’s justice court convictions as conclusive
evidence

that

Montgomery

sustained

his

injuries

during

the

commission of a criminal act. But there are no facts which create
a

nexus

between

conviction.

Montgomery’s

Specifically,

injuries

there

is

no

and

his

justice

explanation

as

court
to

how

Montgomery arrived in his girlfriend’s apartment, how far the
apartment was from the scene of the accident, how much time passed
between the accident and the arrest, and under what circumstances
the Deputies entered the apartment. The Defendants have failed to

15

show or otherwise allege that there is a causal nexus between
Montgomery’s criminal activity and the alleged harm the Deputies
caused, therefore, Montgomery’s state law tort claims survive the
Defendants’ Motion to Dismiss.
III. Disposition
In accordance with the above findings, the Court denies the
Defendants’ Motion for Dismiss on the basis of qualified immunity
and immunity under the MCTA. As articulated above, the Court
declines to consider the present Motion as a motion for summary
judgment because the Parties have not engaged in discovery and
therefore reiterates that the Defendants will have the opportunity
to file a summary judgment motion on these same issues at the
appropriate time.
Accordingly,
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss
[docket entry no. 8] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Amend the
Complaint is GRANTED.
SO ORDERED AND ADJUDGED, this the 27th day of December, 2011.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

16