Felter et al v. Brown et al
Filing
30
ORDER granting 26 Motion for Summary Judgment and dismissing with prejudice all federal claims against defendant Darryl Longino in his individual capacity. Signed by Honorable David C. Bramlette, III on 10/2/2013 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ERIKA FELTER AND
JONATHAN FELTER
VS.
PLAINTIFFS
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
MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant Darryl Longino’s
Motion for Summary Judgment (docket entry 26).
Having carefully
considered the motion, to which no response has been filed by the
plaintiffs, and the applicable law, as well as the record in this
case, the Court finds as follows:
The Court previously raised, sua sponte, defendant Longino’s
assertion of qualified immunity as an affirmative defense in his
Answer. “[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 rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A stay
order was entered in this case, allowing discovery to proceed
solely on the issue of qualified immunity.
Following the completion of discovery, the Court ordered the
plaintiffs to file a reply to defendant Longino’s assertion of a
qualified immunity defense, see Schultea v. Wood, 47 F.3d 1427,
1433 (5th Cir. 1995).
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.
id. at 1434.
See
When the plaintiffs failed to reply, the Court
ordered the plaintiffs to show cause why Longino should not be
dismissed on immunity grounds, and warned them that their failure
to reply could result in dismissal of defendant Longino.
plaintiffs
also
failed
to
respond
to
the
show
cause
The
order,
whereupon the Court granted Longino leave to renew his motion for
qualified immunity.
Longino filed a motion for summary judgment
based on qualified immunity, and the plaintiffs again failed to
respond.
The
party
seeking
summary
judgment
bears
the
burden
of
“informing the district court of the basis for its motion, and
identifying those portions of [the record evidence] which it
believes demonstrate the absence of a genuine issue of material
fact.”
Celotex, 477 U.S. at 323.
“A genuine issue of material
fact exists if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”
Paz, 555 F.3d at 391
(quoting Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th
2
Cir. 2000)).
Once the moving party meets its burden, the nonmoving party
must then “come forward with specific facts showing a genuine
factual issue for trial.”
Harris ex rel. Harris v. Pontotoc Cnty.
Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011).
The nonmoving party
cannot rely on metaphysical doubt, conclusive allegations, or
unsubstantiated assertions, but instead must show that there is an
actual controversy warranting trial.
Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(internal citations omitted).
As
the 2010 amendments to Rule 56 make clear, 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,
affidavits
documents,
or
electronically
declarations,
stored
stipulations
...,
interrogatory answers, or other materials ....”
information,
admissions,
Fed.R.Civ.P.
56(c)(1)(A).
The plaintiffs have failed to respond to the defendants’
motion for summary judgment. The local rules of this Court require
a response to a motion within fourteen days, L.U.C.R. 7(b)(4),
which is not optional.
Blackard v. City of Southaven, 2012 WL
827192, *3 (N.D. Miss. March 9, 2012).
The plaintiffs, who are
represented by counsel, neither responded to the motion nor moved
for additional time to respond.
The Court notes that it may not grant summary judgment by
3
default, i.e., merely because there is no opposition to the motion.
Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir.
1995).
However, the Court may accept as undisputed the movant’s
version of the facts and grant the motion where the movant has made
a prima facie showing of its entitlement to summary judgment.
Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988);
Romberger v. United Transp. Union, 930 F.Supp. 1131, 1132 (N.D.
Miss. 1996).
In other words, the defendant must still meet his
burden of establishing that no genuine issue of material fact
exists concerning the plaintiffs’ claims and that he is entitled to
judgment as a matter of law.
According to the plaintiffs’ Complaint, on September 19, 2009,
“Erika Felter called the Adams County Sheriff’s Department for
assistance in euthanizing and disposing of a large, badly injured
whitetail deer” near a roadway in Adams County, Mississippi.
Complaint, ¶ 8.
The Complaint further alleges that defendant
Longino arrived on the scene and attempted to kill the deer with
his firearm, but neither of two shots to the animal’s head was
lethal.
Id. at ¶ 9.
Plaintiff Erika Felter continued to implore
Longino to kill the animal, or allow her husband or brother to do
so, but Longino refused.
Id. at ¶¶ 9-10.
Then, “[p]recipitously
and without any justification, Deputy Longino handcuffed Erika
Felter and took her against her will and without her consent to the
Adams County Jail where she was incarcerated and charged with
4
‘failure
to
dismissed.”
obey
an
officer.’
The
charge
was
eventually
Id. at ¶ 11.
In his memorandum in support of the motion for summary
judgment, Longino states that he was
called to the scene by a
dispatcher who warned him “that the call was based on a citizen’s
complaint and that the citizen that called was excited and upset
about the matter.”
Memorandum, p. 2.
The dispatcher also warned
Longino that the other deputies were all on call and that he would
not have any backup.
Id.
When Longino arrived on the scene, “Mrs.
Felter was clearly upset about the situation and was adamant that
Deputy Longino take action immediately.”
Id. at p. 3.
While
Longino was on his phone with dispatch, “Mrs. Felter repeatedly
ordered Deputy Longino to get off the phone and demanded he take
immediate action.”
Id.
When Longino fired his first non-lethal
shot, “Mrs. Felter demanded Longino shoot the deer again and
continued to harass him until he fired again.”
second
shot,
which
was
also
non-lethal,
Id.
“Felter
After the
became
very
agitated and upset and badgered Longino to shoot the animal again.”
Id.
Longino tried to calm Mrs. Felter down but was unable to do
so.
Id. at pp. 3-4.
the deer.
She moved toward him, demanding that he shoot
Id. at p. 4.
At that point, Mrs. Felter’s brother
arrived at the scene with a high powered rifle.
Longino saw the
brother, Michael Bumgarner, approach with a .30-06 rifle.
5
“While
Longino was dealing with Felter, who continued her hysterics, he
heard someone cycle a round into the high-powered rifle and saw
either Felter’s brother or husband approach the animal and aim the
rifle at it.”
Id.
Longino immediately told the male not to shoot
the animal because the high-powered rifle would not be safe at that
range.
Id.
The male with the rifle obeyed Deputy Longino’s
command not to shoot.
Id.
“At this point, given that Deputy Longino was outnumbered, one
of the citizens had a high powered rifle in his possession, and
Mrs. Felter seemed out of control, Longino became very concerned
for his safety.
Deputy Longino believed that Mrs. Felter was
becoming a problem and a threat and, as such, he advised her to
leave the scene.”
Id.
Bumgarner’s deposition reveals that he too
recognized that his sister was out of control, and he told his
brother-in-law to get her into the car.
Depo. at 32-33.
Id., citing Bumgarner
Bumgarner also stated that he believed the
situation was going to “break [his sister] down” and he told her to
get into the car to “separate” herself from the situation.
citing Bumgarner Depo. at 33-36.
scene or to obey Longino.
Id.,
Mrs. Felter refused to leave the
Id. at p. 5.
Mrs. Felter told Longino
he would have to arrest her, then turned around and placed her
hands behind her back, at which point Longino handcuffed her and
arrested her for failure to obey his order to leave the scene.
Id.
Deputy Longino then placed Mrs. Felter in his vehicle and took her
6
to the Adams County Jail for processing.
Id.
Felter’s brother nor her husband were arrested.
Plaintiffs
suing
a
defendant
in
his
Neither Mrs.
Id.
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 plaintiffs’ Complaint asserts that “[t]he arrest and
imprisonment of Erika Felter was illegal, wrongful and false for
the reason that the arrest was not based upon a valid warrant and
was without probable cause,” Complaint, ¶ 12, and that the “false
or wrongful arrest and imprisonment ... deprived Erika Felter of
her rights, privileges and immunities secured by the United States
Constitution ....”
Complaint, ¶ 17.
Specifically, the plaintiffs
refer to “rights ... secure[d] to the Plaintiff Erika Felter by the
provisions of unreasonable seizure of the person and of the due
process clause of the Fourth and Fourteenth Amendments of the
Constitution of the United States and by 42 USC Section 1983
barring illegal arrests.”
Complaint, ¶ 24.
Law enforcement officials, “like other public officials acting
within the scope of their official duties, are shielded from claims
of
civil
liability,
including
§
7
1983
claims,
by
qualified
immunity.” Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 753
(5th Cir. 2001). A law enforcement officer is entitled to the cloak
of qualified immunity “unless it is shown that, at the time of the
incident, he violated a clearly established constitutional right.”
Mangieri v. Clifton, 29 F.3d 1012 (5th Cir. 1994).
Significantly,
qualified immunity provides “ample protection to all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
In assessing a claim of qualified immunity, courts apply a two
part analysis.
The threshold question is “whether Plaintiff’s
allegations establish a constitutional violation.” Hope v. Pelzer,
536 U.S. 730, 736 (2002).
been
violated
were
the
If “no constitutional right would have
allegations
established,
there
is
no
necessity for further inquiries concerning qualified immunity.”
Saucier v. Katz, 533 U.S. 194 (2001); see also Pearson v. Callahan,
555 U.S. 223, 225 (2009)(courts may address these prongs in either
order).
However, “if a violation could be made out, the next
sequential
step
established.”
is
to
ask
whether
Saucier, 533 U.S. at 201.
the
right
was
clearly
It is important to note
that the right that the “official is alleged to have violated must
have been ‘clearly established’ in a more particularized, and hence
more relevant sense: the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.”
Anderson v. Creighton, 483 U.S. 635,
8
640 (1987).
The “relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the
situation confronted.”
Saucier, 533 U.S. at 202.
Finally, it is
worth noting that “[w]hen 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).
While the Constitution does not guarantee that only the guilty
will be arrested, the Fourth Amendment does prohibit unreasonable
searches and seizures.
See Baker v. McCollan, 443 U.S. 137, 145
(1979); Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998).
Generally, a seizure without probable cause or warrant is a
violation of the Fourth Amendment. See United States v. Jones, 234
F.3d 234, 239 (5th Cir. 2000).
Thus, whether an arrest is legal
hinges on the existence of probable cause.
Probable cause exists
when the totality of facts and circumstances within a police
officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.
(5th Cir. 1996).
United States v. Levine, 80 F.3d 129, 132
If an officer has probable cause to believe that
an individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment,
arrest the offender.
Atwater v. City of Lago Vista, 532 U.S. 318,
9
354 (2001); see also Lockett v. New Orleans City, 607 F.3d 992, 998
(5th Cir. 2010)(arrest for exceeding speed limit).
Here, there can be no doubt that Deputy Longino had probable
cause to arrest Mrs. Felter on a misdemeanor charge of failure to
obey.
See Miss. Code Ann. § 97-35-7.
Deputy Longino repeatedly
commanded her to step back from the situation and, if necessary,
leave the scene.
Felter
remained
Longino Affidavit, ¶¶ 10-14.
on
the
scene,
very
upset
Nevertheless, Mrs.
and
continually
interfering with Longino as he determined how to handle the
situation.
Id.
The Plaintiff admitted in her deposition that she
was upset and agitated; her brother and her husband both confirmed
this fact.
E. Felter Depo. pp. 40, 42; J. Felter Depo. pp. 21-23;
Bumgarner Depo. pp. 30-33.
Deputy Longino repeatedly told the
plaintiff to calm down or he would have to arrest her, but she
refused to calm down and even told him to arrest her.
Longino Aff.
¶ 13; E. Felter Depo. pp. 45, 48-49; J. Felter Depo. pp. 22-23.
In
summary, Felter refused to obey Deputy Longino’s demand that she
leave the scene, and this refusal amounted to a misdemeanor
committed in his presence.
This is clearly sufficient probable
cause for Deputy Longino to arrest Mrs. Felter.
See Atwater, 532
U.S. at 354.
Furthermore, even if Mrs. Felter could demonstrate that she
suffered a constitutional violation, Deputy Longino would still be
entitled to qualified immunity under the facts of this case.
10
Longino’s decision to arrest Mrs. Felter was objectively reasonable
and, as such, entitles him to qualified immunity.
As previously
noted, the qualified immunity test has two prongs, the second of
which requires that the right violated be “clearly established.”
Saucier, 533 U.S. at 201.
The appropriate test for whether or not
a right is clearly established is “whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
confronted.”
Id. at 202.
An officer’s actions must be judged in
light of the circumstances that confronted him, without the benefit
of hindsight.
Graham v. Connor, 490 U.S. 386, 396-97 (1989).
“In
essence, a plaintiff must allege facts sufficient to demonstrate
that no reasonable officer could have believed his actions were
proper.”
Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).
Here, Deputy Longino believed that he had probable cause to
arrest Mrs. Felter based upon her failure to obey his command.
Longino was in a remote stretch of road that was not well-lit,
without backup, outnumbered, and one of the individuals was in
possession
of
a
high
powered
rifle.
Longino
Aff.
¶¶
4-14.
Furthermore, Mrs. Felter was was so out of control over the
situation that Longino believed she might be under the influence of
drugs or alcohol.
Id. at ¶¶ 6-7.
Mrs. Felter was very upset and
Longino believed, under the circumstances, that she was becoming a
problem.
Bumgarner Depo. pp. 31-34; Longino Aff. ¶¶ 12-14.
Mrs.
Felter’s actions were such that Deputy Longino reasonably arrested
11
her for failure to obey.
It cannot be said that “no reasonable
officer could have believed” arresting Mrs. Felter, under the given
circumstances, was proper.
Thus, even if the arrest amounted to a
constitutional violation, Deputy Longino is entitled to qualified
immunity as his conduct was objectively reasonable.
The plaintiffs also contend that Erika Felter suffered a
violation of her rights when she was unlawfully detained or
imprisoned following her arrest.
Complaint, ¶ 24.
While a claim
for harm derived from being seized focuses on the Fourth Amendment,
a claim for harm derived from being wrongfully detained/falsely
imprisoned focuses on the Fourteenth Amendment.
See Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988).
To establish a
constitutional violation for “false imprisonment,” a plaintiff must
show that the defendant lacked probable cause to arrest him.
Haggerty v. Texas So. Univ., 391 F.3d 653, 655 (5th Cir. 2004).
Erika Felter’s claim for false imprisonment fails because she
was clearly detained based upon probable cause.
As explained
above, there was probable cause to arrest Mrs. Felter based on her
actions in violation of Mississippi Code § 97-35-7.
Because there
was clearly probable cause to detain the plaintiff, her false
imprisonment claim also fails.
As
for
plaintiff
Jonathan
Felter,
he
admitted
in
his
deposition that he was never arrested in connection with the
subject incident.
J. Felter Depo. p. 25.
12
In Coon v. Ledbetter,
780 F.2d 1158 (5th Cir. 1986), the Fifth Circuit explained that a
party who asserts a claim for a deprivation of his civil rights
must have personally had such rights violated.
Thus, a person
cannot recover on a claim that is dependent on or derivative of
another person’s civil rights violation claim. Id. at 1160-61; see
also Barker v. Halliburton Co., 645 F.3d 297, 300 (5th Cir. 2011).
Because Jonathan Felter was neither arrested nor detained, and
asserts no other deprivation of his civil rights, his claim under
Section 1983 must be dismissed.
The Court notes that defendant Longino moves for summary
judgment on the federal claims against him and does not address the
state law claims contained in Counts II and III of the Complaint.
Accordingly,
IT IS HEREBY ORDERED that defendant Darryl Longino’s Motion
for Summary Judgment premised on qualified immunity grounds (docket
entry 26) is GRANTED;
FURTHER ORDERED that all federal claims against defendant
Darryl Longino in his individual capacity are dismissed with
prejudice.
SO ORDERED, this the 2nd day of October, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
13
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