Montgomery v. Warren County et al
Filing
67
ORDER granting 41 Motion for Summary Judgment; granting 43 Motion for Summary Judgment; dismissing 45 Motion to Dismiss. Signed by Honorable David C. Bramlette, III on 7/14/2013 (PL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ERNEST MONTGOMERY
PLAINTIFF
V.
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
On December 27, 2011, the Court entered an order denying the
Defendants’ Motion to Dismiss based on qualified immunity and
granted the Plaintiff’s Motion to Amend. See Order, docket no. 21.
The Defendants appealed this Order, but the appeal was dismissed.
See Mandate, docket no. 30. Upon remand, the Parties conducted
limited discovery as to the issue of qualified immunity. Now, the
Defendants have individually filed Motions for Summary Judgement
[docket nos. 41, 43], which bring this cause again before the
Court. Having carefully considered these Motions, the Plaintiff’s
opposition thereto, applicable statutory and case law, and being
otherwise fully advised in the premises, the Court finds that the
Defendants are entitled to qualified immunity and will therefore
grant their Motions.1
1
Montgomery objects that the Defendants’ Motions are untimely
and asks the Court not to consider them. The Defendants’ Motions
were indeed a few days late. Nevertheless, the Court has the
discretion to entertain them and will do so. Edwards v. Cass Cnty.,
Tex., 919 F.2d 273, 275-76 (5th Cir. 1990). There is no indication
that the Plaintiff was prejudiced because the Defendants filed
their Motions late.
THE DIFFERENT STORIES
The Defendants’ Version. On November 26, 2009, an unidentified
source notified the Warren County authorities of a vehicular hitand-run and reported the fleeing vehicle’s location to the 911
dispatcher. Hollingsworth Depo. at 14. In response, Defendant
Warren County Sheriff Deputy Satcher went to the scene of the
accident to investigate, and Defendant Warren County Sheriff Deputy
Hollingsworth went to the fleeing vehicle’s reported location.2
There, Hollingsworth found Plaintiff Earnest Montgomery sitting in
the suspected vehicle, which was parked outside his girlfriend’s
apartment. Hollingsworth Depo. at 15. When Hollingsworth approached
the car, Montgomery exited—apparently appearing compliant—but then
fled on foot into the woods behind the apartment. Id. at 15.
Hollingsworth chased him. According to Hollingsworth, Montgomery
ran a short way into the woods but then tripped and fell to the
ground. Id. at 15. Hollingsworth “got on his back” and attempted to
handcuff him, but, in Hollingsworth’s words, Montgomery “fought
extremely.” Id. at 15.
Sometime during the beginning of the foot pursuit, Defendant
Warren County Sheriff Deputy Heggins arrived as backup and followed
the two into the woods. Heggins Depo. at 11, 12, 16.
According to
his testimony, Heggins caught up with the two just as Hollingsworth
2
Apparently, the unidentified source followed the fleeing
vehicle and reported its location to the 911 dispatcher.
Hollingsworth Depo. at 14.
2
was attempting to handcuff Montgomery. Id. at 20. Heggins placed
his foot on Montgomery’s back because it appeared to Heggins that
Montgomery was going to get up. Id. at 20, 23. When it became
apparent
that
Montgomery
indeed
was
going
to
escape
before
Hollingsworth could handcuff him, Heggins tased him once in order
to get him “under control.” Id. at 25; Hollingsworth Depo at 15.
Even after being tased, Montomgery continued to fight with the
Deputies, which prompted Heggins to use the taser on Montgomery a
second time. Heggins Depo. at 25; Hollingsworth Depo. at 15.
Hollingsworth then was able to handcuff Montgomery. Shortly after
the Deputies emerged from the woods, Hollingsworth noticed that
Montgomery had fallen onto “concrete” and “messed his face all up.”
Hollingsworth Depo. at 16. Neither Deputy testified to striking,
hitting, or punching Montgomery in the face.
Montgomery’s Version. Montgomery’s version of what happened is
more difficult to follow because of its incoherent chronology and
vague details. First, his testimony about what precipitated his
flight into the woods is contradicted by the testimony of his thengirlfriend, Marquita Scott, who witnessed the pre-and-post-arrest
events. Montgomery testified that as he was exiting his vehicle at
least five police vehicles arrived at his girlfriend’s apartment
and at least five sheriff deputies, who may have been wearing black
masks, exited their patrol cars with guns drawn. Mont. Depo. at 19,
21, 22. He further states that he was fearful because he was
3
holding his “daughter” at the time. Id. at 17. But Scott, who
witnessed
these
same
initially
appeared
events,
at
the
confirmed
scene.
She
that
also
only
one
claimed
deputy
that
her
daughter, not Montgomery’s, was inside the house at the time the
first deputy arrived, and she stated that this deputy never drew
his gun. Scott Depo. at 11-12, 26-27.
As for what transpired after he fled from the allegedly masked
deputies, Montgomery is not clear or consistent. The core of
Montgomery’s excessive force claim is that a number of unidentified
deputies beat him unnecessarily while they were in the woods.
According to Montomgery, these deputies broke his nose and his eye
socket in addition to pulling out a plait of his hair. Id. at 35,
92.
But
apart
from
his
general
belief
that
he
was
beaten
unnecessarily by unspecified deputies, Montomgery cannot provide
any specific details of the incident and consistently claims that
he could not remember how the events unfolded because he was
“unconscious”
for
most
of
the
time
during
which
the
events
occurred.
For example, because he claims to have been “unconscious,” he
cannot say with any certainty whether he fell while in the woods or
whether he fell onto a concrete object. First, he insists that he
did not fall to the ground. Id. at 26. Then, he claims that he
cannot remember. Id. at 27. Finally, he states that “after they
struck me, I think—I’m thinking I was—I had to have fell down, you
4
know.”
Id.
at
85.
Again,
because
he
claims
to
have
been
“unconscious,” he cannot tell how many deputies hit him and which
deputies hit him. He testifies that the number of deputies was
“four, five. More than one, more than two.” Id. at 28. And he later
adds that four or five “bald” deputies struck him. Id. at 29-30.
Finally, because he claims to have been “unconscious,” he cannot
tell exactly how many times these deputies used the taser or what
the deputies hit him with. Id. at 23, 25, 26, 27. He initially
claims that he was tased more than twice—“two in the chest and two
in the back.” Id.
at 23. But when pressed on the details, the only
tasing he describes in the entire deposition is the one that
occurred when the Deputies were initially trying to handcuff him.
As to how he was beaten, during cross-examination he first states:
Don’t recall. I don’t know if it was one of those black
struck things or a flashlight. It was some—a blunt
object. I can’t recall, you know. I don’t know. . . .
They could have punched me, too. I was unconscious, man,
you know, it’s so much I can, you know, remember. You
know, I don’t just, you know, remember like, you know.
Id. at 26. But during direct examination he changes his story:
That Taser thing struck me. And, you know, they turned me
over, you know, just hit me—you know, hit me in the face.
I was unconscious for a minute, but I felt somebody
strucking me like—punching in my face, hitting me with,
you know, something in my face, you know.
Id. at 84.3 The most helpful chronological detail that Montgomery
3
The rest of Montgomery’s testimony regarding the deputies’
behavior is more of the same. It is impossible to understand
exactly what Montgomery believes happened, other than he believes
that the deputies unnecessarily hit him “several” times in the
5
provides is that the unidentified deputies handcuffed him after
they had allegedly beat him. Id. at 35.
Returning to Scott’s testimony, she offers a few additional
details about what occurred in the woods, although she could not
see what happened. First, Scott states that she heard the taser go
off “several” or “five times.” Scott Depo. at 44. This testimony is
based on her general impression of events and the fact that she
heard the taser’s “Zzz-zzz-zzz” sound “several” times, which she
guesses was “five.” Id. at 20, 45. But she also states that she
heard deputies telling Montgomery “to get down” before she heard
the
sounds
of
the
taser.
Id.
at
20-21.
Moreover,
she
asked
Montgomery what “they [did] to him” shortly after he had been
arrested, and Montgomery responded that “he fell and hit a brick.”
Id. at 33. When Scott expressed her doubts, one deputy pointed her
to the “big rock” in the woods on which he claimed Montgomery had
fallen. Id. at 38. On the morning following the arrest, Scott went
into the woods to examine the rock. Id. According to her testimony,
she saw spatters of blood on the rock. Id. Asked in her deposition
if she then believed that Montgomery injured himself on the rock,
she claimed she did not, because, in her view, if the story was
true then “he would have been dead.” Id. at 39.4
face. Id. at 36.
4
Scott later adds in a post-deposition affidavit that she
“noted the blood on both hands of deputy Hollingsworth, as Earnest
Montgomery was being placed in an ambulance.” See Scott Aff.,
6
Video Evidence. Video evidence, taken from Satcher’s car,
which arrived at the scene sometime after Hollingsworth and Heggins
had begun their foot pursuit of Montgomery, provides no real-time
insight into the events as they transpired in the woods but sheds
some light on what happened after the three emerged from the woods.
The video shows Hollingsworth leading Montgomery out of the woods
in handcuffs. By this time, all parties, with the exception of
Scott who can be heard yelling “what did you do to him” in the
background, were calm. Holingsworth sat Montgomery on the ground in
direct view of the camera. Montgomery did not appear to have
suffered any shocking wounds but was clearly bleeding from the
right side of the head above his eye. While there, the Deputies
made an effort to attend to his wounds, which included cleaning it
and radioing for medics. They also worked politely with Scott,5 who
eventually calmed down, to find Montgomery’s cell phone, which had
been lost in the woods. Sometime during this time, Hollingsworth,
Heggins, and Satcher discussed what happened to Montomgery’s head,
with Hollingsworth claiming that Montgomery fell and hit his head
on something like a brick or a rock. Satcher directly asked
docket no. 66. There are multiple explanations at to how this blood
could have ended up on his hands. The Court cannot draw inferences
from this testimony favorable to either side.
5
Montgomery claimed that after the deputies removed him from
the woods they were “rude” to his girlfriend and made no effort to
attend to his injury. These details are irrelevant to the Court’s
analysis but underscore Montgomery’s shaky recollection of events.
7
Montgomery, “You do, you do know we didn’t do that to you, though,
right, you
fell
and
hit
a
rock,
is
that
right?”
Id.
at
7.
Montgomery responded, “Yeah I fell, yes sir. I was scared.” Id.
Satcher again asked, “Ok, but you did, you are saying, you know we
didn’t do that to you, you did fall and hit a rock, is that right?”
Id. To which Montgomery again responded, “Yeah I know y’all ain’t
. . . (inaudible).” Shortly thereafter, this time unprompted by any
deputy, Montgomery stated, “Man I fell on something.” Id. at 9.
STANDARD OF REVIEW
“A
qualified
immunity
defense
alters
the
usual
summary
judgment burden of proof. Once an official pleads the defense, the
burden then shifts to the plaintiff, who must rebut the defense by
establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law.” Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Michalik v.
Hermann, 422 F.3d 252, 262 (5th Cir. 2005)). Even though the
plaintiff has the burden in this context, because the plaintiff is
the nonmovant, all inferences are drawn in his favor. Callahan, 623
F.3d at 253.
8
ANALYSIS
I. Excessive Force Claim6
The Defendants advance two reasons why they are entitled to
summary judgment on the Plaintiff’s excessive force claims. First,
they argue that Montgomery has not adduced facts sufficient to
demonstrate
that
their
actions
were
objectively
unreasonable.
Secondly, they argue that Heck v. Humphrey, 512 U.S. 477 (1994),
and its Fifth Circuit progeny bars his excessive force claim
because this claim necessarily implies the invalidity of his
resisting arrest conviction, which was adjudicated by the Warren
County Justice Court almost a year after his arrest. The Defendants
are right on both arguments.
A. Qualified Immunity
In
order
to
overcome
the
two-pronged
qualified
immunity
defense in the context of an excessive force claim Montgomery must
establish “(1) an injury, (2) which resulted directly and only from
the
use
of
force
that
was
clearly
excessive,
and
(3)
the
excessiveness of which was clearly unreasonable.” Ontiveros v. City
of
Rosenberg,
Tex.,
564
F.3d
379,
382
(5th
Cir.
2009).
Interestingly, the Deputies focus exclusively on whether it was
clearly excessive for them to use the taser and ignore Montgomery’s
allegations that they punched or hit him. Focusing exclusively on
6
In the Court’s first order denying qualified immunity, it
concluded that Montomgery’s § 1983 claim was an excessive force
claim.
9
the tasing is curious because the physical injuries enumerated in
the Amended Complaint—a broken nose, lacerations, and multiple
abrasions to his face, back, and head—are injuries that would
result primarily from their alleged beating of Montomgery. See
Amended Complaint ¶ 12. In fact, in his deposition Montgomery
alleges that most of those injuries occurred when the Deputies hit
him.
See
Montgomery
Depo.
33-36.
But
even
more
puzzling
is
Montgomery’s response, which also focuses on the reasonableness of
the tasing and only once—and even then, vaguely—refers to the
Defendants hitting him. See Pl.s’ Br. at 8, docket no. 53. It is
not clear whether Montgomery’s failure to reference this testimony
is related to the Defendants’ Motion to Dismiss for Violation of
Federal Rule of Civil Procedure 37 [docket no. 45], which was filed
contemporaneously with their qualified immunity motions. Whatever
the cause, in his response briefs Montgomery clearly distances
himself
from
the
more
inflammatory
claims
contained
in
his
deposition.7
7
The Defendants contend that Montgomery’s testimony is so
unbelievable that he violated the Court’s discovery rules and
should be sanctioned with dismissal of his case. Sanctions aside,
while a district court generally should refrain from making
credibility assessments at the summary judgment stage, e.g., Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), the
United States Supreme Court has stated that “[w]hen opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007). This case presents somewhat of a
“Scott situation,” Anderson v. McCaleb, 480 F. App’x 768, 771 (5th
10
If the Deputies’ use of the taser is the force in question,
Montgomery fails to overcome the Defendants’ qualified immunity
defense at the first step, that is, he cannot show that his
injuries were caused by the Deputies’ use of that force. Ontiveros,
564 F.3d at 382. In his deposition, Montgomery never claims that
his physical injuries resulted directly or indirectly from the
tasing. Conceivably, Montgomery could have suffered “lacerations”
from the taser’s prongs or “abrasions” if he fell to the ground
from the taser’s shock. But he does not claim to have suffered any
of his injuries in this way. He attributes the more serious of the
injuries in the Complaint—a broken nose and abrasions to his
face—to the Deputies’ alleged beating of him. Without any specific
testimony to connect the force to the injury, he cannot overcome
the Deputies’ claim for qualified immunity. As for the injuries as
they relate to the alleged beating, Montgomery’s claim survives at
step one.
Even so, Montgomery also fails to overcome the Defendants’
qualified immunity defense at the third step, regardless of the
Cir. 2012), as most of the video evidence and a good portion of
Scott’s eyewitness testimony clearly discredits Montgomery’s
testimony to the point where no reasonable juror could believe him.
But because there is no direct evidence which contradicts
Montgomery’s story about what happened in the woods, the Court
cannot fully rely on Scott’s rationale, with the notable exception
of whether Montgomery fell onto a rock. Regardless, the Court need
not discredit any of Montgomery’s testimony to rule on the
Defendants’ qualified immunity defense because he has failed to
provide testimony indicating that the Deputies’ actions were
objectively unreasonable.
11
type of force in question. First, it is easy to determine whether
the decision to tase Montgomery was clearly unreasonable. Heggins
testified that he tased Montgomery because he was attempting to
escape
from
Hollingsworth,
who
was
trying
to
handcuff
him.
Montgomery never disputes this story. In fact, when pressed on any
details that might overcome the Deputies’ claim that the tasing was
in
direct
response
to
his
resistence
to
being
handcuffed,
Montgomery simply claims that he was “unconscious” at the time.
Either he remembers what happened, or he does not. He cannot
contend that the Deputies should not have tased him and yet
maintain that he does not know whether he was struggling or
attempting to escape the Deputies’ grasp. Because Montgomery does
not provide any details to corroborate his vague allegations of
excessive force related to the use of the taser,8 the Court cannot
accept
Montgomery’s
argument
that
its
use
was
objectively
unreasonable.
Likewise, the Court cannot conclude from Montgomery’s muddled
8
As for Scott’s testimony that she believes Montgomery was
tased several or five times, this belief is based purely on hearing
the “Zzz” sound multiple times. The Court need not address whether
multiple “Zzz” sounds accompany one “tasing,” or whether each
individual “Zzz” sound represents a different “tasing.” It is
enough to note that Scott appears to rely on the later
understanding to formulate her belief that Montgomery was tased
“several” times, and that understanding is not necessarily
inconsistent with the Defendants’ testimony—or Montgomery’s
testimony for that matter (at least viewed in light of the details
he provides). More to the point, Scott testified that the Deputies
warned Scott “to get down” before using the taser.
12
story that the Deputies’ use of physical force—if the Deputies did
indeed use
other
physical force—was
objectively
unreasonable.
Montgomery genuinely may believe that his behavior did not warrant
the use of any force. He may even believe that the Deputies
intended to harm him by striking him with their fists or their
flashlight.
But
he
offers
nothing
more
than
his
belief
to
substantiate these claims. What is clear—and uncontradicted by
Montgomery—is that when Hollingsworth arrived at the scene and
attempted to question Montgomery, he fled into the woods. From
this, the
Court
can
conclude
that
Hollingsworth did
not
act
unreasonably by pursuing him. As for what happened in the woods,
first of all, Montgomery definitely ran into some kind of concrete
object.9
At some point thereafter, Hollingsworth attempted to
handcuff him. Montgomery never claims that he ceased to struggle
with the Deputies at any point before they were able to subdue him
by using the taser or even by “hitting” him. The Defendants
9
Hollingsworth testified that he saw it happen. Scott
testified that she saw blood on the rock the next morning. And less
than ten minutes after his arrest, Montgomery admitted that his
head injury was caused when he ran into the object. Certainly,
Montgomery could explain away that admission, but any explanation
would require him not only to give a plausible alternative cause of
his injuries but also explain why his admission is unbelievable. He
does neither. His default explanation that he was “unconscious” at
the time of his admission is not convincing, Mont. Depo. at 68,
particularly because he does not appear to be “unconscious” while
he is asking Scott and the Deputies to look for his sister’s phone
in the woods because “[he] just got that phone today.” Montgomery
was conscious enough to give the Deputies his sister’s phone number
so they could locate that phone. Video Transcript at 8-9.
13
handcuffed him after they allegedly punched or hit him. This fact
corroborates
the
Deputies’
claim
that
they
only
used
force
necessary to restrain him. Montgomery’s vague accusations based
upon his subjective belief, unsupported by any other evidence in
the record,
are
insufficient
for
the Court
to
conclude that
Montgomery has carried his burden of showing that no reasonable
deputy could have believed that the Defendants’ actions were
proper. Brown v. Callahan, 623 F.3d 249 (5th Cir. 2010) (citing
Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)).
B. Heck v. Humphrey
As for the Defendants’ Heck v. Humphrey argument, in its
earlier opinion, the Court recognized that Heck v. Humphrey, 512
U.S. 477 (1994), had been applied to bar excessive force claims
but, because there were few facts in the record, expressed its
concern over whether Heck v. Humphrey barred Montgomery’s claims.
See Montgomery v. Warren County, 2011 WL 6781020, at *4 (S.D. Miss.
Dec. 27, 2011) (quoting Arnold v. Town of Slaughter, 100 F. App’x
321, 323 (5th Cir. 2004)). Having reconsidered the matter, the
Court suggests that, here, a Heck analysis is either ancillary or
redundant to the above qualified immunity analysis, which was based
on the fact that Montgomery resisted the Deputies’ attempt to
arrest him. To explain, Heck may have had some added significance
14
if Montgomery had testified that he did not resist arrest.10 See
Bolton v. City of Gulfport ex rel. Schloegel, 2012 WL 6094770, at
*11 (S.D. Miss. Dec. 7, 2012). If he had, Heck at the very least
could be cited to estop Montgomery from disputing the facts that
underlie his resisting arrest conviction. See Nelson v. Jashurek,
109 F.3d 142, 146 (3rd Cir. 1997) (explaining that a resisting
arrest conviction is pertinent to an excessive force claim even if
it may not bar that claim under Heck). But Montgomery has never
claimed that he was not resisting arrest. While it is true that a
conviction for resisting arrest is often a good indicator that the
amount of force used by an arresting officer is reasonable, see
Bolton, 2012 WL 6094770, at *11 (“[S]everal decisions by the Fifth
Circuit indicate that Heck’s favorable termination rule generally
bars excessive force claims where the plaintiff has been convicted
of resisting arrest.”), Heck requires an “analytical” and “factintensive” inquiry, id. at *11 (quoting Bush v. Strain, 513 F.3d
492,
497
(5th
Cir.
2008),
which
is
almost
identical
to
the
qualified immunity analysis conducted above.
10
To be clear, Montgomery does state that he did not try to
get away when the Deputies were putting the handcuffs on him. But
he appears to be describing the situation after the struggle and
tasing. Mont. Depo. at 41. He never disputes the Deputies’ story
that he was fighting with them, other than to claim that he could
not have resisted them because he was “unconscious.” In other
words, he never accounts for what happened before he became
“unconscious” or gives the Court any indication that there was no
need for the Deputies to take actions that may have rendered him
“unconscious,” that is, to use force to arrest him.
15
To repeat those facts as they relate to his conviction, on
November 26, 2009, Montgomery fled from Hollingsworth and fought
with Hollingsworth and Heggins while they tried to arrest him.
Although the abstract of the conviction does not specifically say
so, these facts must form the basis of the resisting arrest
conviction. The abstract shows that the violation occurred on
November 26, 2009 and that Hollingsworth filed the charge. See
Abstract of Court Record, docket no. 8-1. There is no indication
that Montgomery had a different encounter with Hollingsworth on
that date. In fact, Montgomery has not denied that his excessive
force claim stems from events different from the ones that underlie
his resisting arrest conviction. Because Montgomery was found
guilty of resisting arrest in connection with this incident but
does not or cannot say at what point he stopped resisting arrest
(which would theoretically trigger the notion that the Deputies’
subsequent use of force was excessive), the Court must conclude
that
the
Deputies’
use
of
force
was
entirely
related
to
Montgomery’s illegal behavior. Under this specific set of facts,
Fifth Circuit precedent indicates that Montgomery’s excessive force
claim would necessarily imply the invalidity of his resisting
arrest conviction, and for this reason also, Montgomery’s excessive
force claims should be dismissed. See Bolton, 2012 WL 6094770, at
*11 (concluding that the plaintiff’s excessive force claim was
barred under Heck because it was not “temporally” or “conceptually”
16
distinguishable from her resisting arrest conviction).
II. State Law Claims
For similar reasons, the Defendants are also entitled to
immunity from Montgomery’s state law claims. The Mississippi Tort
Claims Act (MTCA) provides immunity from claims “[a]rising 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.” Miss. Code Ann. § 11-469(1)(c). As is clear from the discussion above, the Deputies were
acting in the scope of their employment and were engaged in a
police activity at the time the state-law claims arose. Further,
Montomgery was engaged in criminal activity at the time of his
encounter with the Deputies, and this activity has a direct “causal
nexus” with the actions for which he now seeks to recover in tort.
See City of Jackson v. Perry, 764 So. 2d 373, 379 (Miss. 2000).
There is no question that the MTCA was designed to provide immunity
to officers from claims arising out of a valid arrest, see id., and
therefore the Defendants are immune from Montgomery’s civil assault
and
battery
and
intentional
and/or
negligent
infliction
of
emotional distress claims.
ORDERS
IT IS THEREFORE HEREBY ORDERED that Defendant Hollingsworth’s
17
Motion for Summary Judgment [docket no. 41] is GRANTED. IT IS
FURTHER
ORDERED
that
Defendant
Heggins’s
Motion
for
Summary
Judgment [docket no. 43] is GRANTED. IT IS FURTHER ORDERED that
Defendants’ Motion to Dismiss for Violations of Federal Rule of
Civil Procedure 37 [docket no. 45] is DISMISSED as moot.
Additionally, Montgomery has sued Warren County but has not
alleged any claims in the Amended Complaint that would suggest
liability, e.g., a § 1983 failure-to train claim. It is unclear why
Defendants’ counsel has not moved for summary judgment in Warren
County’s favor, but it appears to be warranted. Pursuant to Federal
Rule of Procedure 56(f), this Court has the authority to grant
judgment independent of a motion if it provides reasonable time for
the Plaintiff to respond. The Court hereby gives notice to the
Plaintiff that the Court is inclined to grant summary judgment in
favor of Warren County on the ground that he has not alleged any
viable theory of liability against it. The Court hereby provides
the Plaintiff fourteen (14) days to SHOW CAUSE why summary judgment
should not be granted in favor of Warren County.
So ORDERED, this the 14th day of July, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
18
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