Felter et al v. Brown et al
Filing
37
ORDER granting 33 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 1/7/2014 (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)(MTP)
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 defendants Adams County,
Angie Brown and Darryl Longino’s Motion for Summary Judgment
(docket entry 33).
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 granted defendant Longino’s motion for
summary judgment based on qualified immunity as to the claims
against him under federal law (Memorandum Opinion and Order of
October 2, 2013)(docket entry 30).
The defendants now move for
summary judgment on the following grounds: (1) the plaintiffs’
Constitutional
claims
as
to
the
County
fail
as
there
is
no
underlying constitutional violation; (2) the plaintiffs have failed
to provide evidence of a policy, practice or custom that was the
“moving force” behind any alleged constitutional violation; (3)
Adams County is entitled to immunity as to the plaintiffs’ state
law claims pursuant to Miss. Code Ann. § 11-46-9(1)(c) of the
Mississippi Tort Claims Act(“MTCA”); and (4) to the extent the
plaintiffs are asserting state law claims against Deputy Longino in
his individual capacity, the same are barred by Section 11-46-7(2)
of the MTCA.1
Defendants’ Motion for Summary Judgment, ¶¶ 3-5.
Parties seeking summary judgment bear the burden of “informing
the district court of the basis for [their] motion, and identifying
those portions of [the record evidence] which [they] believe[]
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“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.”
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.
2000).
Once the moving parties meet their 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.
1
Little v. Liquid Air Corp.,
The defendants’ motion also states that the Motion to
Dismiss Sheriff’s Department and Board of Supervisors (docket entry
9) remains pending and should be granted.
However, the Court
previously granted the motion on June 29, 2012 (docket entry 23).
2
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
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 movants’
version of the facts and grant the motion where the movants have
made
a
prima
judgment.
facie
showing
of
their
entitlement
to
summary
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 defendants must still meet
3
their burden of establishing that no genuine issue of material fact
exists concerning the plaintiffs’ claims and that they are 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
Id. at ¶¶ 9-10.
so, but Longino refused.
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
‘failure
to
dismissed.”
obey
an
officer.’
The
charge
was
eventually
Id. at ¶ 11.
This Court previously found that Deputy Longino had probable
cause to arrest Mrs. Felter on a misdemeanor charge of failure to
obey, and that he was entitled to qualified immunity from the
Fourth Amendment wrongful arrest claim and the Fourteenth Amendment
false imprisonment claim. (Memorandum Opinion and Order of October
2, 2013)(docket entry 30).
4
The plaintiffs assert that Adams County failed to adequately
train,
discipline
and
supervise
Deputy
Longino.
A
local
government, like Adams County, can be held liable under Section
1983 for violating a citizen’s constitutional rights, but only if
“the
governmental
body
itself
‘subjects’
[that]
person
to
a
deprivation of rights or ‘causes’ a person ‘to be subjected’ to
such deprivation.”
(2011).
Connick v. Thompson, 131 S.Ct. 1350, 1359
Governmental entities are “responsible only for [their]
own illegal acts” and are “not vicariously liable under § 1983 for
[their] employees’ actions.” Id.
Thus, there is no respondeat
superior liability under Section 1983; rather, the key to municipal
liability is demonstrating that a deprivation of a constitutional
right was inflicted pursuant to an official policy or custom of the
municipality in question.
658, 694 (1978).
Monell v. Dep’t of Soc. Serv., 436 U.S.
The unconstitutional conduct asserted “must be
directly attributable to the municipality through some sort of
official action or imprimatur.” Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001).
To establish liability against Adams
County, the plaintiffs must demonstrate (1) an official policy or
custom, of which (2) a policymaker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose
“moving force” is that policy or custom.
Rivera v. Houston Indep.
Sch. Dist., 349 F.3d 244, 247-249 (5th Cir. 2003).
A “policy or
custom” can be either (1) a policy statement, ordinance, regulation,
5
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; or (2) 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
represents municipal policy.
to
constitute
a
custom
that
fairly
McGregory v. City of Jackson, 335
Fed.Appx. 446, 448-449 (5th Cir 2009).
The plaintiffs must also demonstrate a link between the policy
and the constitutional violation, and the policy must be maintained
with
“objective
protected right.
2002).
deliberate
indifference”
to
a
constitutionally
Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir.
A municipality acts with objective deliberate indifference
if it promulgates a policy or custom despite the “known or obvious
consequences
that
constitutional
Piotrowski, 237 F.3d at 567.
violations
would
result.”
Deliberate indifference of this sort
is a stringent test, and “a showing of simple or even heightened
negligence will not suffice” to prove municipal culpability.
Id.
at 579.
In this case, as previously found by the Court, the plaintiffs
have failed to demonstrate an underlying constitutional violation
because Deputy Longino had sufficient probable cause to arrest Erika
Felter.
As the Fifth Circuit has explained, “[w]ithout an underlying
constitutional violation, an essential element of municipal liability
is missing.”
Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997).
6
Thus, the plaintiffs’ federal claims against Adams County fail due
to the lack of a constitutional violation.
The plaintiffs also bring federal law claims against Angie
Brown, former sheriff of Adams County; however, she is sued in her
official capacity only.
against
governmental
Complaint, ¶ 4 (docket entry 1).
officers
or
employees
in
their
Suits
official
capacity are, in reality, suits against the entity that the officer
or employee represents.
U.S.
658,
690
n.55
See Monell v. Dept. of Soc. Serv., 436
(1978)(official
capacity
suits
“generally
represent only another way of pleading an action against an entity
of which an officer is an agent.”); Kentucky v. Graham, 473 U.S.
159, 167 (1985)(“a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government
entity itself.”).
Therefore, the plaintiffs’ claims against Brown
in her official capacity are claims against Adams County.
As set
forth above, under the facts of this case, Adams County cannot be
held liable under Section 1983 for violating the plaintiff’s
constitutional rights.
The plaintiffs also bring state law claims against Adams
County, Brown and Longino. All of the plaintiffs’ state law claims
are governed by the Mississippi Tort Claims Act (“MTCA”), Miss.
Code Ann. § 11-46-1, et seq.; City of Tupelo v. Martin, 747 So. 2d
822, 826 (Miss. 1999).
The MTCA waives sovereign immunity as a
whole for Mississippi’s political subdivisions; however, the MTCA
7
retains a number of restrictions, limitations and exemptions from
liability.
See, e.g., 11-46-7(2); 11-46-9(1).
All of the plaintiffs’ state law claims are barred by the
MTCA.
Section 11-46-9(1)(c), commonly referred to as the “police
function exception,” provides:
[a] governmental entity and its employees acting within
the course and scope of their employment or duties shall
not be liable for any claim ... [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 the injury.
Miss. Code Ann. § 11-46-9(1)(c).
Section 11-46-9(1)(c) provides two avenues of immunity: (1) if
the plaintiff was engaged in criminal activity at the time of the
incident in question, Adams County is immune from suit and; (2)
even if the plaintiff was not engaged in criminal activity, if no
officer acted with reckless disregard for her safety and wellbeing, then Adams County is immune from suit.
Estate of James
Stanley Williams v. City of Jackson, Mississippi, 844 So. 2d 1161,
1164 (Miss. 2003). In this case, Deputy Longino had probable cause
to arrest Erika Felter for failure to obey.
Because Erika Felter
was engaged in criminal activity (failing to obey an official
order), the plaintiffs’ claims under state law fail.
To the extent that the plaintiffs are attempting to hold
Deputy Longino liable in his individual capacity under state law,
8
those claims must also fail. Section 11-46-7(2) of the MTCA allows
an individual to be joined in a representative capacity; however,
an individual, in the scope and course of his employment, can have
no personal liability.
Miss. Code Ann. § 11-46-7(2).
It is
uncontested that Deputy Longino was, at all times, acting within
the
course
and
scope
of
Complaint, ¶¶ 7, 16.
his
employment
with
Adams
County.
Therefore, Longino can have no personal
liability in this case.
For
the
defendants’
foregoing
motion
for
reasons,
the
summary
Court
judgment
finds
is
that
the
well-taken.
Accordingly,
IT IS HEREBY ORDERED that defendants Adams County, Angie Brown
and Darryl Longino’s Motion for Summary Judgment (docket entry 33)
is GRANTED.
A Final Judgment dismissing this action with prejudice shall
follow.
SO ORDERED, this the 7th day of January, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
9
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