Felter et al v. Brown et al

Filing 25

ORDER allowing defendant Darryl Longino 30 days from entry of this Order to file a Qualified Immunity motion. Signed by Honorable David C. Bramlette, III on 11/26/2012 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ERIKA FELTER AND
JONATHAN FELTER

PLAINTIFFS

VS.

CIVIL ACTION NO. 5:11-cv-46(DCB)(RHW)

ANGIE BROWN, FORMER SHERIFF OF
ADAMS COUNTY, MISSISSIPPI; DARRYL
LONGINO, FORMER DEPUTY SHERIFF OF
ADAMS COUNTY, MISSISSIPPI; AND
ADAMS COUNTY, MISSISSIPPI

DEFENDANTS

ORDER
This cause is before the Court sua sponte to address defendant
Darryl Longino’s assertion of qualified immunity.

In his Answer,

defendant Longino raised the issue of qualified immunity as an
affirmative defense to all claims brought against him in his
individual

capacity.

“[G]overnment

officials

performing

discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established

statutory

or

constitutional

reasonable person would have known.”
U.S. 800, 818 (1982).

rights

of

which

a

Harlow v. Fitzgerald, 457

A stay order was entered in this case on

April 20, 2011, allowing discovery to proceed solely on the issue
of qualified immunity.

The parties have conducted discovery, and

the last deposition was taken on April 16, 2012.
On June 29, 2012, the Court ordered the plaintiffs to file a
reply to defendant Longino’s assertion of a qualified immunity
defense within 20 days from the date of the Order.

See Schultea v.

Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Plaintiffs

suing

a

defendant

in

his

individual

capacity

pursuant to Section 1983 must allege specific conduct giving rise
to the constitutional violation.
740 (5th Cir. 2002).

Oliver v. Scott, 276 F.3d 736,

When a defendant invokes qualified immunity,

the burden is on the plaintiffs to demonstrate the inapplicability
of the defense.

McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002).
The Court ordered the plaintiffs to file a heightened pleading
in the form of “a short and plain statement of [their] complaint”
against defendant Longino, “a complaint that rests on more than
conclusions alone.” Shultea, 47 F.3d at 1433. The plaintiffs were
cautioned

that

their

reply

must

contain

allegations

of

fact

focusing on specific conduct of the defendant that they claim
caused the alleged injury, and that they must support their claim
with sufficient precision and factual specificity to raise a
genuine issue as to the illegality of the defendant’s conduct at
the time of the alleged acts.

See id. at 1434.

Defendant Longino was granted leave to file an immunityrelated motion within twenty days following the filing of the
plaintiffs’ Schultea reply.

However, the plaintiffs did not file

a Schultea reply within the time allowed by the Court.

On August

13, 2012, the court entered a Order to Show Cause requiring a
response from the plaintiffs, and warning them that their failure

2

to reply could result in dismissal of defendant Longino.

There

being no response from the plaintiffs, the Court finds that
defendant Longino should be allowed to renew his motion for
qualified immunity.

Accordingly,

IT IS HEREBY ORDERED that defendant Darryl Longino is granted
thirty (30) days from the date of entry of this Order to file a
Motion to Dismiss based on qualified immunity.
SO ORDERED, this the 26th day of November, 2012.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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