Smith v. City of McComb, Mississippi et al
ORDER denying 81 Plaintiff's Motion for Summary Judgment; granting in part and denying in part 95 Defendants' Cross-Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 8/24/2017 (EB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 5:15-cv-55-DCB-MTP
CITY OF MCCOMB, MISSISSIPPI; ANTHONY
DANIELS, in His Individual Capacity and
in His Official Capacity as a Police Officer
for the City of McComb, Mississippi; KENYANNA
MARTIN, in Her Individual Capacity and in Her
Official Capacity as a Police Officer for the
City of McComb, Mississippi; ARMSTRONG NATIONAL
SECURITY FORCE, LLC; and ELDRIDGE BULLOCK, in
His Individual Capacity and in His Capacity as
an Employee and Agent for ARMSTRONG NATIONAL
SECURITY FORCE, LLC
MEMORANDUM ORDER AND OPINION
This cause is before the Court on plaintiff Sybil Smith
(“Smith”)’s Motion for Partial Summary Judgment (docket entry 81)
(“Armstrong”) and Eldridge Bullock (“Bullock”)’s Cross-Motion for
Summary Judgment (docket entry 95). Having carefully considered
the motions, responses, and applicable law, and being otherwise
fully informed in the premises, the Court finds as follows:
I. Facts & Procedural History
This case arises from a verbal dispute between plaintiff Sybil
Smith (“Smith”) and her neighbor, Brittany Bullock, which occurred
on June 21, 2014, at the Community Park Apartments in McComb,
At the time of the altercation, defendant Armstrong
National Security Force, LLC (“Armstrong”) was providing security
services for the apartment complex.
Defendant Eldridge Bullock
(“Bullock”) was the Armstrong security guard on duty at the time
of the event.
On the day of the incident, Smith, who lived in unit 24-F of
the apartment complex, was sitting on her porch when she observed
Tracy Bullock, also known as “Baby T,” standing by apartment
building 19. Doc. 95-1, p. 6.
Smith felt inclined to contact law
enforcement to inform them of Baby T’s presence at the complex.
Though the plaintiff has acknowledged that she was unaware of any
pending charges against Baby T, it appears that Smith suspected
that Baby T was involved in some drug related activity within the
residential community. Id. at 28-31.
Upon seeing Baby T, Smith
left her porch and walked to the security guard shack where Bullock
Smith informed Bullock that she was going to call
the police and asked him to “keep an eye” on Baby T.
responded to the call, but it appears that Baby T evaded capture
by running into a nearby apartment. Id. at 24.
Smith claims that she returned to her apartment porch after
the police left the scene. Id. According to the plaintiff, Brittany
Bullock (“Brittany”) approached Smith’s apartment building shortly
thereafter with a group of people.1 It appears that plaintiff’s
apartment building was perpendicular to Building 19 and that there
Brittany Bullock is Baby T’s sister, and both Brittany and Baby T are
related to defendant Eldridge Bullock.
was a walkway located in-between the two buildings. Smith testified
in her deposition that the group walked around the walkway until
they were facing Building 24, where Smith was sitting upstairs.2
Once Brittany arrived in front of Smith’s building, the plaintiff
claims that Brittany began pointing her finger and shouting in
brother is going to keep going to jail as long as this b---- keep
calling the MF police.” Doc. 95-1, p. 33.
Brittany continued to
curse the plaintiff by calling her “b----” and threating to “whoop
[her] so and so a--.” Id.
Smith testified that she responded to
Brittany by declaring, “If you want to whoop my a--, come on up
here and whoop my a--.” Id. at 45. The two continued this loud
back and forth exchange by debating whether they would meet
upstairs or downstairs. See id. at 33.
Meanwhile, Bullock had approached the scene and was standing
downstairs as Smith and Brittany shouted back and forth. Id. at
situation. A number of neighbors had walked outside by this point,
and Smith claims that she was explaining the ongoing events to her
There is some disagreement as to Smith’s whereabouts when the altercation
began. Smith maintains that she had returned to her apartment and was sitting
on her porch at the time Brittany approached. Bullock, however, testified that
Brittany approached Smith and Bullock as they were walking from Building 19 to
Building 24 and that most of the name-calling took place during their walk and
continued until Smith reached the flat platform between the two flights of
stairs leading to her apartment. See Doc. 81-6, pp. 34-46.
neighbors when Bullock stated, “Didn’t I tell you to shut up?” Id.
According to Smith, Brittany continued “ranting and raving,” and
Bullock stated, “I’m calling the police on both of you, because I
told both of you to shut up.”
Doc. 95-1, p. 45; Doc. 81-6, pp.
Bullock called the McComb Police Department, and Officers
Anthony Daniels and Kenyanna Martin arrived at the scene.
Upon his arrival, Officer Daniels spoke with Bullock for a
few minutes about the unfolding events.
Officer Daniels testified
that Smith was yelling from the top of her balcony and asking why
she was being placed under citizen’s arrest. Doc. 81-8, p. 21-22.
Officer Daniels claims that he asked Smith to keep quiet while he
was speaking with Bullock, but Smith continued. Id. During their
conversation, Bullock told Officer Daniels that he wanted to place
Smith and Brittany under citizen’s arrest for disturbing the peace
and using profane language. Doc. 81-8, pp. 22, 32. Officer Daniels
then walked up the stairs, placed handcuffs on Smith, and advised
her that she was being placed under Officer Daniels advised Smith
that she was being placed under arrest for disturbing the peace.
Id. at 22, 27; Doc. 95-1, p. 116.
Once Officer Daniels and Smith
made it downstairs to the sidewalk, Bullock also told Smith that
she was under arrest. Id. at 38.
Officer Daniels then placed Smith in Officer Martin’s patrol
car, and Officer Martin transported her to the McComb Police
Department. Id. at 34.
A few hours later, Bullock went to the
police station and filled out a criminal affidavit charging Smith
with disturbing the peace in violation of Miss. Code Ann. § 9735-15. Docs. 81-6, p. 67-68; 95-2; 98-7; 85-1. Smith was ultimately
found not guilty of the charge against her. Brittany was later
arrested and convicted of the same offense.
On June 22, 2015, Smith filed suit against the City of McComb
Defendants”), and Eldridge Bullock and Armstrong National Security
Force (collectively, “Security Defendants”). Smith’s complaint
alleges a number of claims under state and federal law arising
from the incident: (1) unlawful arrest under state and federal law
against all defendants; (2) assault and battery against Officers
distress against Bullock; (4) negligent infliction of emotional
distress against Bullock; and (5) negligence against the Security
All claims against the Municipal Defendants were
dismissed on June 5, 2017, upon stipulation of the parties. See
Order of Dismissal, Doc. 121. Smith’s claims against the Security
The plaintiff filed a Motion for Partial Summary Judgment on
March 17, 2017, seeking summary judgment on the issue of liability
as to her claims of unlawful arrest and negligence. See Doc. 81.
Smith’s motion, followed by a cross-motion for summary judgment as
to all claims asserted against them. See Docs. 93, 95.
A. Standard of Review
Summary judgment is appropriate “if there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
issue of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the non-movant. LeMaire
v. Louisiana Dept. of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.
2007). In determining whether a genuine dispute as to any material
fact exists, the Court considers all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence. Flock v. Scripto-Tokai Corp., 319 F.3d 231, 236 (5th
nonmoving party.’” Aldous v. Darwin Nat’l Assurance Co., 851 F.3d
473, 477 (5th Cir. 2017). The party moving for summary judgment
bears the initial burden of producing evidence that shows the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant makes such a
demonstration, the nonmoving party must go beyond the pleadings
and “designate specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). “Where the record, taken as a whole, could not lead a
rational trier of fact to find for the nonmoving party, there is
no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); but see LeBlanc
v. Greater Baton Rouge Port Com’n, 676 F. Supp. 2d 460, 478 n.59
(M.D. La. 2009) (“summary judgment is improper if undisputed facts
conflicting inferences is for the trier of fact”).
B. Unlawful Arrest under Federal Law
In their respective motions, both parties claim they are
entitled to summary judgment as to Smith’s unlawful arrest claims
neither of the Security Defendants can be liable for unlawful
arrest because Smith’s arrest was effected exclusively by Officer
Daniels, not Bullock. The plaintiff, however, argues that Bullock
conspired, or acted in concert with, the McComb police officers to
arrest Smith without warrant or probable cause.
Title 42 U.S.C. § 1983 provides a vehicle by which plaintiffs
may recover against any person “who deprives an individual of
federally guaranteed rights ‘under color’ of state law.” Filarsky
v. Delia, 566 U.S. 377, 383 (2012). “An individual’s right to be
free from unlawful arrest is such a protected right, the violation
of which may be grounds for a suit under § 1983.” Duriso v. K-Mart
No. 4195, Division of S.S. Kresge Co., 559 F.2d 1274, 1277 (5th
Cir. 1977). To recover for a constitutional violation under § 1983,
the plaintiff must establish: (1) that “the defendant has deprived
her of a right secured by the ‘Constitution and laws’ of the United
States” and (2) that the defendant acted under the color of state
law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
“[a]nyone whose conduct is fairly attributable to the state can be
sued as a state actor under § 1983,” private conduct is excluded
from the statute’s reach. Blankenship v. Buenger, 653 F. App’x
330, 335 (5th Cir. 2016) (internal quotations omitted).
private actors, like the Security Defendants, may be held liable
under § 1983 if they are “willful participant[s] in joint activity
with the State or its agents.” Adickes, 398 U.S. at 152; see also
Glotfelty v. Karas, 512 F. App’x 409, 414 (5th Cir. 2013) (“a
private citizen may be held liable under § 1983 where the plaintiff
alleges ‘that the citizen conspired with or acted in concert with
Under the joint action test, a private actor does not become
liable under § 1983 by merely furnishing information to police,
nor does an officer’s partial reliance on the information given by
a private party transform that party into a state actor. Daniel v.
Ferguson, 839 F.2d 1124, 1131 (5th Cir. 1988); see also Sims, 778
F.2d at 1079 (“execution by private party of sworn complaint
forming the basis of arrest, without more, is insufficient”).
sustain a claim for unlawful arrest against a private actor under
§ 1983 on the basis of joint action with the state or state
officials, “the plaintiff must show that the police in effecting
the arrest acted in accordance with a ‘preconceived plan’ to arrest
a person merely because he was designated for arrest by the private
party, without independent investigation.” Sims v. Jefferson Downs
Racing Ass’n, Inc., 778 F.2d 1068, 1079 (5th Cir. 1985). When
considering whether private merchants may be liable as state actors
under a theory of joint action, the Fifth Circuit has emphasized
that a private party will not be subject to § 1983 liability
investigation,” which may include “such indicators as an officer’s
interview of an employee, independent observation of a suspect,
and the officer writing his own report.” Morris v. Dillard Dept.
Stores, Inc., 277 F.3d 743, 750 (5th Cir. 2001); see Smith v.
Brookshire Bros., 594 F.2d 140 (5th Cir. 1979) (finding state
action where private merchant detained shoplifter pursuant to
preconceived plan between the city and merchant); Duriso v. K-Mart
No. 4195, Division of S.S. Kresge Co., 559 F.2d 1274, 1278 (5th
Cir. 1977) (finding evidence sufficient for jury to infer that
shoplifter); but see Barkley v. Dillard Dept. Stores, Inc., 227 F.
App’x 406, 410 (5th Cir. 2008) (finding no state action where
officer’s decision to arrest was not based solely on private
party’s report); Hernandez v. Schwegmann Bros. Giant Supermarkets,
Inc., 673 F. 2d 771 (5th Cir. 1982) (finding no state action
despite police officer’s reliance on store’s report where the
officer made his own determination of cause to arrest).
Here, Bullock requested police assistance after witnessing
the verbal altercation between Smith and Brittany. After the
officers arrived at the scene, Officer Daniels spoke with Bullock
for two to three minutes, and Bullock told Officer Daniels that he
wanted to place both women under citizen’s arrest. Officer Daniels
subsequently handcuffed the plaintiff and advised her that she was
being placed under citizen’s arrest for disturbing the peace. Doc.
81-8, pp. 25-30. Officer Daniels arrived after the cursing between
Smith and Brittany had subsided, but he witnessed Smith yelling
downstairs in such a manner that made it difficult for him to hear
Bullock, who was standing a mere two to three feet away. Doc. 818, p. 24-26, 50.
In his deposition, Officer Daniels testified
about a city policy which allowed security guards, or others
effecting a citizen arrest, to travel to the police station after
the arrest in order to fill out a criminal affidavit, and the
officer stated that he was acting pursuant to that policy when he
also testified that he
believed there was probable cause to arrest Smith based on his
personal observations at the scene because he heard her “yelling
[and] talking loud in the presence of two or more folks,” which he
understood to constitute disturbing the peace. See Doc. 81-8, pp.
39-47, 51, 53.
While these facts show that Bullock requested that an arrest
be made, Officer Daniels’ uncontroverted testimony also shows that
he independently assessed the situation prior to making the arrest
by speaking to Bullock and observing Smith’s conduct. Indeed, the
officer testified that he believed he had probable cause to arrest
Smith for disturbing the peace based on what he personally observed
at the scene. Regardless of whether the officer also relied on the
partial reliance on that information is insufficient to transform
Bullock into a state actor for purposes of § 1983. See Daniel, 839
F.2d at 1131. Moreover, there is no evidence showing an agreement
or conspiracy between Bullock and Officer Daniels, nor has the
plaintiff identified any evidence sufficient to raise a genuine
issue of material fact as to a customary, preconceived plan between
Armstrong Security and the McComb Police Department.3
To the contrary, Smith testified that she has no knowledge about what
Bullock told Officer Daniels during their conversation. Doc. 81-5, pp. 98-99,
114. Moreover, the arrest procedures outlined in the McComb Police Department’s
Policy Number 4.8, attached as Exhibit 4 to Smith’s summary judgment motion,
support that the department’s officers are authorized to make warrantless
arrests only when “a misdemeanor offense has been committed in their presence
. . . or [they] have probable cause to believe a suspect has committed a criminal
offense.” Doc. 81-4, p. 8. Armstrong Security’s internal citizen arrest policy,
attached to plaintiff’s motion as Exhibit 10, also advises that police officers
are not required to take arrested persons into custody if they have reasonable
cause to believe the individual did not commit the offense, or that the arrest
was otherwise unauthorized. Doc. 81-10, p. 15.
the Court cannot conclude that the Security Defendants are state
actors for the purpose of § 1983 liability. The Security Defendants
are therefore entitled to summary judgment on the plaintiff’s
unlawful arrest claims arising under federal law.
C. State Law Claims4
1. False Arrest
The Security Defendants argue that Smith’s state law unlawful
arrest claim also fails as a matter of law because Bullock did not
physically detain, seize, or arrest the plaintiff. Smith, on the
other hand, contends that she is entitled to summary judgment
because Bullock instigated or caused her arrest, and he did so
without probable cause.
not touch or physically
While the facts support that Bullock did
these facts are not
necessarily dispositive of the false arrest claim. See Watson ex
rel. Watson v. Jones Cty. Sch. Dist. ex rel. Jones Cty. Sch. Bd.
of Educ., 2008 WL 4279602, at *4 (S.D. Miss. Sept. 11, 2008).
Under Mississippi law, false arrest is an intentional tort
which occurs “when one causes another to be arrested falsely,
unlawfully, maliciously, and without probable cause.” Croft v.
Grand Casino Tunica, Inc., 910 So.2d 66, 75 (Miss. Ct. App. 2005).
4 Considering the current procedural posture of this case, the length of
time the matter has been pending, and all other factors articulated in 28 U.S.C.
§ 1367(c), the Court shall exercise its discretion to retain supplemental
jurisdiction over Smith’s remaining state law claims in the interest of
“judicial economy, fairness, convenience, and comity.” Smith v. Amedisys Inc.,
298 F.3d 434, 447 (5th Cir. 2002).
The elements of a false arrest or imprisonment claim are: “(1) the
detention of the plaintiff, and (2) the unlawfulness of such
detention.”5 Gatheright v. Clark, 2016 WL 237153, at *3 (S.D. Miss.
Jan. 20, 2016) (citing Hart v. Walker, 720 F.2d 1436, 1439 (5th
Cir. 1983)). For a person to be liable to another for false
indirect procurement.” Smith v. Patterson, 58 So. 2d 64, 66 (Miss.
1952); see also Sunshine Jr. Food Stores, Inc. v. Aultman By and
instigates or participates in the unlawful confinement of another
is subject to liability to the other for false imprisonment”);
Rodriguez v. Ritchey, 539 F.2d 394 (5th Cir. 1976) (“general
principles of tort law provide a cause of action for unlawful
Instigation requires more than supplying information to the police
and leaving to the police officers the decision to arrest. Id. The
relevant inquiry is whether the defendant’s actions “were the
equivalent, in words or conduct, of stating, “Officer, arrest that
“Because the elements of false arrest and false imprisonment are
essentially identical, the distinction is inconsequential.” Hobson v.
Dolgencorp, LLC, 142 F. Supp. 3d 487, 494 (S.D. Miss. 2015) (citing Hart v.
Walker, 720 F.2d 1436, 1439 (5th Cir. 1983)); see also Scott v. Spencer Gifts,
LLC, 2015 WL 4205242, at *5 n.3 (S.D. Miss. July 10, 2015) (applying same
analysis to plaintiff’s false arrest and false imprisonment claims).
[woman]!’” Godines, by and through Godines v. First Guar. Sav. &
Loan Ass’n, 525 So. 2d 1321, 1324 (Miss. 1988) (citing Howell v.
Viener, 176 So. 731 (Miss. 1937)). What constitutes instigation
depends on the facts and inferences to be drawn in each particular
case. Godines, 525 So. 2d at 1325.
requested police presence at the scene, and after the officers
arrived, Bullock told Officer Daniels that he wanted to place Smith
under citizen’s arrest for disturbing the peace. Yet, Officer
Daniels also testified that he believed there was sufficient
probable cause to arrest Smith based on his observations. Daniels
then placed Smith in handcuffs and informed her that she was being
placed under citizen’s arrest, and Bullock later went to the police
station to complete the affidavit charging the plaintiff. See Doc.
81-6, pp. 45, 48-49; Doc. 81-8, pp. 22, 24. Considering these
facts, it is arguable that Bullock instigated or caused Smith’s
Even assuming that Bullock instigated the arrest, Smith’s
unlawful arrest claim must fail if the arrest was supported by
probable cause. See Croft, 910 So.2d at 75-76. “Probable cause
requires a concurrence of an honest belief in the guilt of the
person accused and reasonable grounds for such belief.” Watson,
2008 WL 4279602 at *4; see also Powe v. State, 235 So. 2d 920, 923
(Miss. 1970) (defining probable cause as “less than evidence which
would justify condemnation ... but more than bare suspicion”);
Benjamin v. Hooper Electronic Supply Co., Inc., 568 So. 2d 1182,
1190 (Miss. 1990) (noting that unfounded suspicion and conjecture
are improper bases for probable cause).6 In moving for summary
judgment, the Security Defendants argue that if Bullock arrested
or caused Smith’s arrest for disturbing the peace, he had probable
cause to do so based on her use of loud language and fighting words
in the presence of two or more people. Smith, however, responds
that summary judgment in her favor is warranted because Bullock
existed because she was standing on her apartment porch at the
time of the altercation, and her language was not profane, or
otherwise sufficient to support a charge for disturbing the peace
by use of profane language.
Though the parties claim that many of the facts giving rise
to Smith’s arrest are undisputed, the Court is reluctant to make
a finding as to probable cause at this stage. From the record,
there is some apparent disagreement about the nature of Smith’s
charges and the particular facts and circumstances giving rise to
her arrest. Smith claims that Bullock directed her arrest because
6 It is the function of the court to determine whether probable cause
existed when the facts are undisputed, but when facts are in dispute, [probable
cause] becomes question for the jury to determine based upon proper
instructions. Benjamin, 568 So. 2d at 1190.
she used profanity. Yet, testimony from Bullock and Officer Daniels
suggests that the manner in which Smith engaged in the verbal
Daniels’ arrival on the scene, may have also provided a sufficient
basis for the arrest.
The criminal affidavit charging Smith cites
Mississippi Code Annotated Section 97-35-15, which identifies a
misdemeanor offense for disturbing the peace by, inter alia, the
use of profane language or conduct calculated to lead to a breach
of the peace. See Miss. Code Ann. § 97-35-15(1). But the affidavit
also specifies that Smith disturbed the peace “by using profane
language after being told to go inside.” Doc. 81-7, p. 2. The
factual discrepancies regarding which words were uttered by Smith,
the volume and manner in which they were uttered, and where the
parties were located when the altercation occurred. See Doc.81-5,
pp. 24-27, 33-34, 45-46, 76, 127-28; Doc. 81-6, pp. 34-50.
these facts, the Court concludes that reasonable minds could differ
as to whether Bullock instigated Smith’s arrest, and whether he
had probable cause to do so based on her words and conduct at the
exercise at the summary judgment stage. Accordingly, both parties’
motions on the false arrest claim shall be denied.
2. Intentional Infliction of Emotional Distress
Smith’s motion for summary judgment does not extend to her
emotional distress claims, but the Security Defendants assert that
they are entitled to summary judgment on these claims as well.
to intentional infliction of emotional distress, the Security
Defendants argue that Smith’s claim fails as a matter of law
because Bullock’s conduct is insufficient to rise to the level of
Alternatively, the defendants contend that Smith has
presented insufficient proof to raise any triable issue as to her
injury or damages.
Plaintiffs asserting a claim for intentional infliction of
willfully or wantonly towards the plaintiff by committing certain
described actions; (2) the defendant’s acts are ones which evoke
outrage or revulsion in civilized society; (3) the acts were
directed at or intended to cause harm to the plaintiff; (4) the
plaintiff suffered severe emotional distress as a direct result of
the defendant’s acts; and (5) such resulting emotional distress
was foreseeable from the intentional acts of the defendant. Rainer
v. Wal-Mart Associates, Inc., 119 So. 3d 398, 403 (Miss. Ct. App.
2013) (quoting J.R. ex rel. Malley, 62 So. 3d 902, 906-07 (Miss.
“Meeting the requisite elements for intentional infliction
of emotional distress is a tall order in Mississippi.” Jenkins v.
City of Grenada, 813 F. Supp. 443, 446 (N.D. Miss. 1993). The
defendant’s conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Perkins v. Wal-Mart Stores, Inc., 46 So. 3d
839, 848 (quoting Speed v. Scott, 787 So. 2d 626, 630 (Miss.
2001)). Liability does not extend to “mere insults, indignities,
threats, annoyances, petty oppression, or other trivialities.”
Croft, 910 So. 2d at 75 (citing Raiola v. Chevron U.S.A., Inc.,
872 So. 2d 79 (Miss. 2004)); but see Gamble ex rel. Gamble v.
Dollar General Corp., 852 So.2d 5, 12 (Miss. 2003) (finding that
embarrassing” handling of shoplifting suspect created a jury issue
as to plaintiff’s intentional infliction of emotional distress
Smith’s intentional infliction of emotional distress claim is
based entirely on Bullock’s alleged involvement in arresting her
without probable cause, and before criminal charges were filed.
If there was probable cause to support Smith’s arrest, then the
plaintiff’s claim for intentional infliction of emotional distress
is also without merit. See Croft, 910 So. 2d at 75-76; Richard v.
Supervalu, Inc., 974 So. 2d 944, 951 (Miss. Ct. App. 2008); see
also Raiola v. Chevron USA, Inc., 872 So. 2d 79, 85-56 (Miss. Ct.
App. 2004) (“liability for intentional infliction of emotional
distress will not be imposed upon an actor for doing no more than
exercising his legal rights”). For the same reasons the Court finds
a genuine issue of material fact as to probable cause, the Court
Bullock’s conduct. See Harris v. Gaston, 2006 WL 763147 (N.D. Miss.
infliction of emotional distress claim where a genuine issue of
material fact existed as to whether it was reasonable for defendant
to cause plaintiff’s arrest).
Furthermore, Smith has testified
that she suffered from anxiety, depression, and agitation of a
pre-existing shoulder problem following the incident, and she
claims to have received treatment for these conditions.7 Doc. 815,
plaintiff’s treatment records are sufficient to establish a claim
for emotional distress damages, the Court finds that the record is
judgment motion shall therefore be denied as to the intentional
infliction of emotional distress claim.
As with the false arrest claims, both parties contend they
are entitled to summary judgment on Smith’s negligence claims. The
traditional elements of negligence under Mississippi law are:
duty, breach, causation, and damages. Magnusen v. Pine Belt Inv.
The record also contains two pages of the plaintiff’s medical records,
which indicate that she was prescribed certain medication. See Doc. 95-3.
Corp., 963 So. 2d 1279, 1282 (Miss. Ct. App. 2007); see also
Anderson v. Litton Loan Servicing, LP, 2010 WL 445593, at *5 (S.D.
Miss. Feb. 1, 2010) (“to survive summary judgment, a plaintiff
must show a genuine issue regarding each of the four elements”).
“[N]egligence is the result of the failure to perform a duty;
therefore, actionable negligence cannot exist in the absence of a
legal duty to an injured plaintiff.” Stanley v. Morgan & Lindsey,
Inc., 203 So. 2d 473, 476 (Miss. 1967). Whether a duty of care
exists is a question of law to be decided by the court. Smith v.
Miss. Sec. Police, Inc., 2010 WL 2723116, at *3 (S.D. Miss. July
6, 2010). The Security Defendants insist that summary judgment in
their favor is proper because they owed no duty to Smith. Smith,
however, argues that Bullock had a duty, pursuant to Armstrong’s
corporate policy, to avoid making a citizen’s arrest unless it was
necessary “for the protection of life and in a very limited amount
of instances, for the protection of property....” Doc. 81-10, p.
14. Further, the plaintiff claims Bullock had a duty to file a
misdemeanor criminal affidavit before effectuating her arrest.
Defendants were negligent for failing to comply with Armstrong’s
internal citizen arrest policy, the Court finds that Smith has
failed to establish any legal duty owed to her by the defendants
in this case.
While internal corporate policies are relevant when
considering the reasonableness of an employee’s actions in a given
context, the Court is unconvinced that the existence of an internal
policy creates a legal duty to the general public where none
previously existed. See Keen v. Miller Environmental Grp., Inc.,
702 F.3d 239, 248 (5th Cir. 2012) (“non-compliance with an internal
policy is evidence that is probative of, but not dispositive of,
breach of duty”); Crane Co. v. Kitzinger, 860 So. 2d 1196, 120001 (Miss. 2003) (holding that corporate manual and handbook were
exclusively on Armstrong’s General Order 6, an internal corporate
policy written by Armstrong to its security personnel. See Doc.
81-10, p. 14.
The stated purpose of Armstrong’s General Order 6
Mississippi state laws related to arrest by civilians,” and the
officers should follow “while performing their duties for [the]
company.” Doc. 81-10, p. 14.
The text of the Order also states
that Armstrong is “committed to providing a safe environment for
[its] clientele,” which is presumably Community Park Apartments in
this case. Id. This internal policy was clearly intended to benefit
See also Cox v. City of Ft. Worth, Tex., 762 F. Supp. 2d 926, 941 (N.D.
Tex. 2010) (“a company’s internal policies or procedures will not create a
negligence duty where none otherwise exists”); Boutilier ex rel Boutilier v.
Chrysler Ins. Co., 2001 WL 220159, at *1 (M.D. Fla. Jan. 31, 2001) (“mere fact
that [defendant] had an internal corporate policy does not create a legal
duty...”); Spearman v. Wyndham Vacation Resorts, Inc., 69 F. Supp. 3d 1273 (N.D.
Ala. 2014) (noting that an internal policy intended for the company’s benefit
rather than safety to the public creates no cognizable duty).
Armstrong, its security officers, and the clients they serve.
Nothing in the text of General Order 6 proclaims any obligation or
duty to third parties, like Smith.
certain circumstances, recognized a duty owed by security officers
to third party beneficiaries of security contracts entered between
the private security firm and its clients. See Doe ex rel. Doe v.
Wright Sec. Services, Inc., 950 So. 2d 1076, 1082 (Miss. Ct. App.
2007) (finding that security company owed duties to assaulted
student’s school); Alqasim v. Capitol City Hotel Investors, LLC,
989 So.2d 488 (Miss. Ct. App. 2008) (holding that private security
firm owed no duty to an injured hotel guest beyond the terms and
condition of its security agreement with the hotel).
record in this case contains no evidence of a contract or agreement
between Armstrong Security and Community Park Apartments, nor has
Security Defendants’ duty arises from such an agreement.
generalized duty to file a criminal affidavit prior to effecting
her arrest is unpersuasive insofar as Mississippi law allows an
officer or private citizen to arrest “any person without warrant
for a misdemeanor offense which has been committed, or for a breach
of the peace attempted or threatened in his presence.” Miss. Code
Ann. § 99-3-7.
Because the plaintiff has not articulated any duty
Defendants’ favor is appropriate on the negligence claim.
4. Negligent Infliction of Emotional Distress
To maintain a claim for negligent infliction of emotional
distress in Mississippi, plaintiffs must establish each of the
elements of negligence by a preponderance of the evidence. Williams
v. Lowe’s Home Centers, Inc., 2007 WL 391567, at *4 (S.D. Miss.
2007) (citing Miss. Dep’t of Transp. v. Cargile, 847 So. 2d 258,
262 (Miss. 2003)). Thus, in the absence of any actionable claim
for negligence against the Security Defendants, Smith’s negligent
Anderson, 2010 WL 445593, at *5. Having found that the plaintiff
has failed to establish, or raise any genuine issue of material
fact as to the element of duty, the Court finds that summary
negligent infliction of emotional distress claim.
IT IS HEREBY ORDERED AND ADJUDGED that plaintiff’s Motion for
Partial Summary Judgment on the Issue of Liability Alone (docket
entry 81) is DENIED;
FURTHER ORDERED that the Security Defendants’ Cross-Motion
for Summary Judgment (docket entry 95) is GRANTED IN PART as to
the plaintiff’s claims of unlawful arrest under federal law,
negligence, and negligent infliction of emotional distress, and
DENIED IN PART as to the plaintiff’s claims of unlawful arrest
under state law and intentional infliction of emotional distress.
SO ORDERED, this the 24th day of August, 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
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