Brown v. Wilkinson County Sheriff Department et al

Filing 58

ORDER granting in part and denying in part 41 Motion for Discovery; granting 16 Motion for Judgment on the Pleadings; granting in part and deferring ruling in part on 19 Motion for Judgment on the Pleadings; granting 22 Motion to Dismiss Plaintiff's state-law claims. Signed by District Judge Keith Starrett on 4/24/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EDWARD BROWN

PLAINTIFF

v.

CIVIL ACTION NO. 5:16-CV-124-KS-MTP

WILKINSON COUNTY SHERIFF’S
DEPARTMENT, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants Defendants’ Motion for Judgment on
the Pleadings [16] as to Plaintiff’s claims against the Wilkinson County Sheriff’s
Department and Wilkinson County Board of Supervisors.
The Court also grants in part and defers ruling in part on Defendants’
Motion for Judgment on the Pleadings [19] as to Plaintiff’s federal claims. Specifically,
the Court defers ruling on the defense of qualified immunity as applied to Plaintiff’s
bystander liability claim against Defendant Gloria Ashford, but the Court grants the
motion in all other respects.
The Court grants Defendants’ Motion to Dismiss [22] Plaintiff’s state-law
claims.
Finally, the Court grants in part and denies in part Plaintiff’s Motion for
Discovery [41]. Specifically, the Court grants the motion as to limited discovery on
Plaintiff’s bystander liability claim against Defendant Ashford, but the Court denies
the motion in all other respects.
The Court instructs the parties to immediately contact the chambers of the

Magistrate Judge to schedule a case management conference in this matter.
I. BACKGROUND
This case arises from the alleged beating of a pretrial detainee by a group of law
enforcement officers and inmates. Plaintiff alleges that he was arrested by the
Wilkinson County Sheriff’s Department and subsequently beaten while in custody. He
claims that a group of deputies and inmates attacked him without provocation, causing
serious injuries, including brain swelling, a nose fracture, and rib fractures. He named
Wilkinson County, the Wilkinson County Board of Supervisors, the Wilkinson County
Sheriff’s Department, Sheriff Reginald Lee Jackson, several Sheriff’s Deputies, several
members of the Board of Supervisors, and three inmates as Defendants. He asserted
claims under 42 U.S.C. § 1983 and state tort law. Defendants filed dispositive motions,
which the Court now addresses.
II. MOTION FOR JUDGMENT ON THE PLEADINGS [16]
First, Defendants Wilkinson County Sheriff’s Department and the Wilkinson
County Board of Supervisors argue that they are not proper defendants because they
have no legal existence separate from Wilkinson County. In response [57], Plaintiff
agrees that Wilkinson County is the proper party in interest, rather than the
Wilkinson County Sheriff’s Department and Wilkinson County Board of Supervisors.
Therefore, as Plaintiff does not oppose the motion, the Court grants Defendants’
Motion for Judgment on the Pleadings [16] as to Plaintiff’s claims against the
Wilkinson County Sheriff’s Department and Wilkinson County Board of Supervisors.
III. MOTION FOR JUDGMENT ON THE PLEADINGS [19]
2

Next, Defendants Reginald Lee Jackson, Ed Alexander, Richard L. Hollins, Will
Seal, Venton McNabb, Kenyon Jackson, and Jennings Nettles filed a Motion for
Judgment on the Pleadings [19] as to Plaintiff’s federal claims against them.
Defendants C. L. Thompson and Gloria Ashford joined [24] in the motion.1
A “motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d
413, 418 (5th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Great Lakes Dredge & Dock Co. LLC v. La. State,
624 F.3d 201, 210 (5th Cir. 2010) (punctuation omitted). “To be plausible, the
complaint’s factual allegations must be enough to raise a right to relief above the
speculative level.” Id. (punctuation omitted). The Court must “accept all well-pleaded
facts as true and construe the complaint in the light most favorable to the plaintiff.”
Id. But the Court will not accept as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id. Likewise, “a formulaic recitation of the elements
of a cause of action will not do.” PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615
F.3d 412, 417 (5th Cir. 2010) (punctuation omitted). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”

1

Throughout the Court’s discussion of the pending motions, it will refer to
these Defendants as the “individual Defendants.” To be clear, the pending motions
do not address Plaintiff’s claims against the individual inmate Defendants – Greg
Chambers, Kendrick Davis, and Darrius Kilburn, and nothing in this opinion
should be construed as addressing Plaintiff’s claims against them.
3

Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
A.

Individual Capacity Claims & Qualified Immunity
First, the individual Defendants argue that they are entitled to qualified

immunity against Plaintiff’s federal claims against them in their individual capacity.
“The doctrine of qualified immunity protects government officials 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.” Pearson v.
Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). “Although
nominally a defense, the plaintiff has the burden to negate the defense once properly
raised.” Poole v. Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
Qualified immunity can be raised at either the pleading or summary judgment
stage of litigation. When it is raised at the pleading stage, “[h]eightened pleading” is
required. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The plaintiff must provide
“allegations of fact focusing specifically on the conduct of the individual who caused the
plaintiffs’ injury.” Id. Plaintiffs must “rest their complaint on more than conclusions
alone and plead their case with precision and factual specificity.” Nunez v. Simms, 341
F.3d 385, 388 (5th Cir. 2003). In other words, a “plaintiff seeking to overcome qualified
immunity must plead specific facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he has alleged and that defeat a
qualified immunity defense with equal specificity.” Backe v. Leblanc, 691 F.3d 645, 648
(5th Cir. 2012). The plaintiff must “speak to the factual particulars of the alleged
actions, at least when those facts are known to the plaintiff and are not peculiarly
4

within the knowledge of defendants.” Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir.
1995).
There are two steps in the Court’s analysis. First, the Court determines whether
the plaintiff alleged sufficient facts to state a claim that the defendant’s “conduct
violates an actual constitutional right.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th
Cir. 2008). Second, the Court must “consider whether [the defendant’s] actions were
objectively unreasonable in the light of clearly established law at the time of the
conduct in question.” Id. The Court may address either step first. Pearson, 555 U.S. at
236. “The qualified immunity standard gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the law.”
Brumfield, 551 F.3d at 326. The Court “applies an objective standard based on the
viewpoint of a reasonable official in light of the information then available to the
defendant and the law that was clearly established at the time of the defendant’s
actions.” Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007). Each Defendant’s
“entitlement to qualified immunity must be considered on an individual basis.” Randle
v. Lockwood, No. 16-50393, 2016 U.S. App. LEXIS 20326, at *11 n. 7 (5th Cir. Nov. 10,
2016) (citing Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007)). Plaintiff
asserted several federal claims, and he asserted each federal claim against all
Defendants.
1.

False Imprisonment/False Arrest (Count One)

The Fifth Circuit applies the same standard to claims of false arrest and false
imprisonment. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004); see also
5

Peairs v. Jackson Cnty., No. 1:13-CV-402-HSO-RHW, 2015 U.S. Dist. LEXIS 129590,
at *46 (S.D. Miss. Sept. 25, 2015). Both claims arise from the Fourth Amendment right
to be free from unreasonable seizure of one’s person. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009). “To ultimately prevail on [a] section 1983 false arrest/false
imprisonment claim, [Plaintiff] must show that [Defendants] did not have probable
cause to arrest him.” Haggerty, 391 F.3d at 655.
In his Amended Complaint [42], Plaintiff alleged that he “was arrested by the
Wilkinson County Sheriff’s Department.” He did not provide any specific “allegations
of fact focusing specifically on the conduct of the individual” or individuals who
arrested him. Reyes, 168 F.3d at 161. In fact, he did not even allege which individual
Defendant arrested him. In short, the Amended Complaint contains no “factual
particulars” of the alleged false arrest, Schultea, 47 F.3d at 1432, and it does not
contain enough facts for the “court to draw the reasonable inference that the
[individual defendants are] liable for the harm he has alleged . . . .” Backe, 691 F.3d at
648. Therefore, the Court grants Defendants’ motion with respect to Plaintiff’s Section
1983 claims of false arrest and false imprisonment against the individual Defendants
in their individual capacities.
2.

Fourteenth Amendment Due Process (Count Two)

Plaintiff contends that Defendants violated his right to due process secured by
the Fourteenth Amendment by failing to “conduct an investigation” or “collect
evidence” and “misleading and misdirecting [his] criminal prosecution . . . .” In briefing,
Plaintiff provided no additional explanation of the nature of this claim. Likewise,
6

Plaintiff failed to cite any law explaining the contours or even supporting the existence
of such constitutional rights.
The Fifth Circuit has held that law enforcement “officers may be liable for illegal
detention under § 1983 for deliberately ignoring exonerative evidence or conducting a
reckless investigation.” Hernandez v. Terrones, 397 F. App’x 954, 965 (5th Cir. 2010).
But there is “no freestanding, clearly established constitutional right to be free from
a reckless investigation . . . .” Id. at 966. Rather, “conducting a reckless investigation
could support other claims for violations of established rights,” such as illegal
detention. Id. at 965. Plaintiff has not clearly articulated the nature of this claim, and
the Court declines to guess whether Plaintiff intended it to be in support of another
constitutional claim, such as illegal detention. Therefore, the Court concludes that
Defendants’ motion should be granted as to this claim because there is “no
freestanding, clearly established constitutional right to be free from a reckless
investigation . . . .” Id. at 966.
Moreover, the Court notes that Plaintiff failed to provide any specific
“allegations of fact focusing specifically on the conduct of the individual” or individuals
who allegedly failed to investigate him and misdirected his prosecution. Reyes, 168
F.3d at 161. In fact, he did not even allege which individual Defendants were involved
in the actions and omissions underlying this claim. The Amended Complaint contains
no “factual particulars,” Schultea, 47 F.3d at 1432, and it does not contain enough facts
for the “court to draw the reasonable inference that the [individual defendants are]
liable for the harm he has alleged . . . .” Backe, 691 F.3d at 648. For all these reasons,
7

the Court grants Defendants’ motion with respect to Count Two of the Amended
Complaint as it is asserted against the individual Defendants in their individual
capacities.
3.

Sixth Amendment Right to Counsel (Count Three)

Plaintiff alleges that Defendants “denied [him] his right to counsel in violation
of his constitutional rights.” Plaintiff provided no facts in support of this claim. He did
not explain how Defendants violated his Sixth Amendment right to counsel, and he did
not allege any specific facts as to any individual Defendant. The Amended Complaint
contains no “factual particulars” regarding this claim. Schultea, 47 F.3d at 1432.
Accordingly, the Court can not “draw the reasonable inference that the [individual
defendants are] liable for the harm [Plaintiff] has alleged . . . .” Backe, 691 F.3d at 648.
The Court grants Defendants’ motion with respect to Count Three of the Amended
Complaint as it is asserted against the individual Defendants in their individual
capacities.
4.

Equal Protection (Count Four)

Plaintiff alleges that Defendants “denied Plaintiff equal protection of the law in
violation of his constitutional rights.” More specifically, he alleges that “Defendants
actively participated in, or personally caused, misconduct in terms of abusing minority
criminal suspects in a manner calculated to bring about arrest, false imprisonment and
severe unjust imprisonment.” He alleges that Defendants’ “misconduct was motivated
by racial animus and constituted purposeful discrimination,” and that it “affected
minorities in a grossly disproportionate manner [than] similarly-situated Caucasian
8

individuals.”
“The Equal Protection Clause directs that persons similarly situated should be
treated alike . . . . To state a claim under the Equal Protection Clause, a § 1983
plaintiff must allege that a state actor intentionally discriminated against the plaintiff
because of membership in a protected class.” Williams v. Bramer, 180 F.3d 699, 705
(5th Cir. 1999). Phrased differently, Plaintiff must allege sufficient facts to
demonstrate “that he received different treatment from that received by similarly
situated individuals and that the unequal treatment stemmed from a discriminatory
intent.” Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001).
The only specific factual allegation Plaintiff alleged as to any of the individual
Defendants was that Defendant Gloria Ashford “could be heard chanting ‘get him, get
him,’” as other officers and inmates beat him while he was in custody. Plaintiff did not
allege that Ashford used any racial epithets, or that she would not behave similarly if
officers were beating a white detainee. Therefore, Plaintiff’s allegation as to Ashford
is not sufficient to demonstrate that she treated him differently than she would a white
detainee, and that the unequal treatment was because of his race. Id.
As for the remaining individual Defendants, Plaintiff alleged no facts
whatsoever regarding their involvement in the alleged beating. The Amended
Complaint contains no “factual particulars” regarding their alleged involvement in the
actions underlying his equal protection claim. Schultea, 47 F.3d at 1432. Accordingly,
the Court can not “draw the reasonable inference that the [individual defendants are]
liable for the harm [Plaintiff] has alleged . . . .” Backe, 691 F.3d at 648. The Court
9

grants Defendants’ motion with respect to Count Four of the Amended Complaint as
it is asserted against the individual Defendants in their individual capacities.
5.

Conspiracy (Count Five)

“To prove a conspiracy under § 1983, a plaintiff must allege facts that indicate
(1) there was an agreement among individuals to commit a deprivation, and (2) that
an actual deprivation occurred.” Jabary v. City of Allen, 547 F. App’x 600, 610 (5th Cir.
2013) (citing Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)). “Plaintiffs who
assert conspiracy claims under civil rights statutes must plead the operative facts upon
which their claim is based. Bald allegations that a conspiracy existed are insufficient.”
Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987). The plaintiff must provide
“material facts,” Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986), or “factual
allegations from which a conspiracy to violate [his] rights can reasonably be inferred
. . . .” Lynch, 810 F.2d at 1370.
Plaintiff alleged no facts whatsoever regarding the Defendants’ alleged
conspiracy. The Amended Complaint contains no “factual particulars” regarding their
alleged agreement, Schultea, 47 F.3d at 1432, or any “operative facts” underlying the
conspiracy claim. Lynch, 810 F.2d at 1370. Plaintiff merely pleaded the elements of a
Section 1983 conspiracy claim without any factual support. Accordingly, Plaintiff did
not plead sufficient facts to state a claim of conspiracy under Section 1983 or defeat
Defendant’s qualified immunity defense. The Court grants Defendants’ motion with
respect to Count Five of the Amended Complaint as it is asserted against the
individual Defendants in their individual capacities.
10

6.

Failure to Intervene (Count Six)

Plaintiff also alleges that Defendants “stood by without intervening to prevent
the” alleged beating. “[A]n officer who is present at the scene and does not take
reasonable measures to protect a suspect from another officer’s use of excessive force
may be liable under section 1983.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).
“[A]n officer may be liable under § 1983 under a theory of bystander liability where the
officer (1) knows that a fellow officer is violating an individual’s constitutional rights;
(2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.”
Hamilton v. Kindred, 845 F.3d 659, 663 (5th Cir. 2017).
As noted above, Plaintiff alleged that Defendant Gloria Ashford “could be heard
chanting ‘get him, get him,’” as other officers and inmates beat him while he was in
custody. This allegation is specific enough to satisfy the heightened pleading standard
applied when qualified immunity is asserted, and it can reasonably be construed – by
a slim margin – as satisfying the elements of a bystander liability claim. At the very
least, it is sufficient to state a plausible claim that Ashford “acquiesced in” the alleged
constitutional violation. Whitley, 726 F.3d at 647. In the Fifth Circuit, it is clearly
established “that an officer could be liable as a bystander in a case involving excessive
force if [she] knew a constitutional violation was taking place and had a reasonable
opportunity to prevent the harm.” Hamilton, 845 F.3d at 663. Moreover, chanting “get
him, get him” while other officers and inmates beat Plaintiff is an objectively
unreasonable response in light of this clearly established law. Therefore, the Court
finds that Plaintiff barely alleged sufficient facts to state a plausible claim of bystander
11

liability under Section 1983 against Defendant Ashford.
However, as noted below, the Court “may defer its qualified immunity ruling if
further factual development is necessary to ascertain the availability of that defense.”
Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015). If the plaintiff “plead[s]
specific facts that both allow the court to draw the reasonable inference that the
defendant is liable for the harm he has alleged and that defeat a qualified immunity
defense with equal specificity,” the Court “may defer its qualified immunity ruling and
order limited discovery . . . .” Id. Accordingly, the Court defers ruling on Defendant
Ashford’s qualified immunity defense as to this claim until the parties have conducted
limited discovery on this issue.
As for the remaining Defendants, the Amended Complaint contains no “factual
particulars” regarding their alleged actions or omissions, Schultea, 47 F.3d at 1432, or
any “operative facts” regarding their involvement in the bystander liability claim.
Lynch, 810 F.2d at 1370. Therefore, Plaintiff did not plead sufficient facts to state a
Section 1983 bystander liability claim against them. The Court defers ruling on
Defendants’ motion with respect to Count Six of the Amended Complaint as it pertains
to Defendant Ashford in her individual capacity, but the Court grants the motion with
respect to Count Six of the Amended Complaint as it pertains to the remaining
individual Defendants in their individual capacities.
7.

Discrimination (Count Seven)

While labeled as a claim of “discrimination” under Section 1983, Count Seven
of the Amended Complaint appears to be another Equal Protection claim. The
12

allegations are exactly the same as Count Four. Therefore, the Court grants
Defendants’ motion with respect to Count Seven of the Amended Complaint as it is
asserted against the individual Defendants in their individual capacities, for the same
reasons provided above.
8.

Eighth Amendment (Count Eight)

Plaintiff alleges that Defendants subjected him to “cruel and unusual conditions
of confinement” that violate the Eight Amendment. “The Eighth Amendment prohibits
the infliction of ‘cruel and unusual punishments’ on convicted criminals and extends
to deprivations suffered during imprisonment.” Legate v. Livingston, 822 F.3d 207, 210
(5th Cir. 2016). Therefore, the Eighth Amendment secures convicted prisoners’ rights
to safety and basic medical care, while the Fourteenth Amendment secures the same
rights for pretrial detainees. Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016);
Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir. 2000).
It is undisputed that Plaintiff had not been convicted of any crime at the time
of the alleged constitutional deprivations. Rather, he was a pretrial detainee.
Therefore, the Court grants Defendants’ motion with respect to any Eighth
Amendment claim asserted in Count Eight of the Amended Complaint as it is asserted
against the individual Defendants in their individual capacities.2

2

At the beginning of Plaintiff’s Amended Complaint, he cited the Fourteenth
Amendment, but in Count Eight – a claim apparently predicated on deprivation of
medical care, excessive force, and unreasonable seizure – he only cited the Eighth
Amendment. As noted above, the Eighth Amendment is irrelevant to claims
asserted by a pretrial detainee. Although it does not appear that Plaintiff asserted
similar claims under the Fourteenth Amendment, some of the cases cited in his
13

9.

Failure to Train or Supervise (Count Nine)

“Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Roberts v. City of Shreveport, 397
F.3d 287, 292 (5th Cir. 2005). “To establish § 1983 liability against supervisors, the
plaintiff must show that: (1) the [supervisor] failed to supervise or train the officer; (2)
a causal connection existed between the failure to supervise or train and the violation
of the plaintiff’s rights; and (3) the failure to supervise or train amounted to deliberate
indifference to the plaintiff’s constitutional rights.” Id.
“[T]he misconduct of a subordinate must be conclusively linked to the action or
inaction of the supervisor,” and the deliberate indifference standard is a “stringent”
one, requiring that “the supervisory actor disregarded a known consequence of his
action.” Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 169-70 (5th Cir. 2010). “To
establish deliberate indifference, a plaintiff usually must demonstrate a pattern of
violations and that the inadequacy of the training is obvious and obviously likely to
result in a constitutional violation.” Goodman v. Harris County, 571 F.3d 388, 395 (5th

supplemental briefing appear to address Fourteenth Amendment claims by pretrial
detainees.
In summary, the Court has no idea what Plaintiff intended to plead. If he
intended to plead Section 1983 claims for violation of his Fourteenth Amendment
rights as a pretrial detainee to receive necessary medical treatment and to be free
from the use of excessive force, he has not done so. No such claim is currently before
the Court. Cutrera v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005). Even if
the Court were to deem Plaintiff’s muddled pleading sufficient to provide
Defendants with notice of such claims, it would not be appropriate for the Court to
address them in the present opinion, insofar as Defendants did not address them in
their initial motions.
14

Cir. 2009). “Furthermore, for a supervisor to be liable for failure to train, the focus
must be on the adequacy of the training program in relation to the tasks the particular
officers must perform,” and the “plaintiff must allege with specificity how a particular
training program is defective.” Id.
The Amended Complaint contains no “factual particulars” regarding Defendants’
alleged failure to train or supervise, Schultea, 47 F.3d at 1432, or any “operative facts”
indicating that they may be liable for failure to train or supervise. Lynch, 810 F.2d at
1370. Therefore, Plaintiff did not plead sufficient facts to state a Section 1983 claim for
failure to train or supervise against any of the individual Defendants. The Court grants
Defendants’ motion with respect to Count Nine of the Amended Complaint as it
pertains to the individual Defendants in their individual capacities.
B.

Board of Supervisors & Policymaking (Count Ten)
Defendants Richard Hollins, Will Seal, Venton McNabb, and Jennings Nettles

(the “Supervisor Defendants”) argue that Plaintiff’s claims against them in their
individual capacities must be dismissed. The Supervisor Defendants contend that
Plaintiff’s claims arise from their legislative acts as members of the Wilkinson County
Board of Supervisors. Accordingly, they argue that 1) as a matter of law, they are not
policymakers with respect to law enforcement decisions in Wilkinson County, and 2)
they enjoy absolute immunity from suit for their legislative activities. In response,
Plaintiff argues that the Supervisor Defendants may be liable under Section 1983 for
their failure to train or supervise.
First, the Court notes that Plaintiff pleaded no “factual particulars” regarding
15

any of the Defendants’ alleged failure to train or supervise, Schultea, 47 F.3d at 1432,
or any “operative facts” indicating that they may be liable for failure to train or
supervise. Lynch, 810 F.2d at 1370. Therefore, Plaintiff did not plead sufficient facts
to state a claim under Section 1983 for failure to train or supervise against any of the
individual Defendants in their individual capacities.
Next, under Mississippi law, a county’s sheriff – not its board of supervisors –
is the “final policymaker” for law enforcement decisions. Waltman v. Payne, 535 F.3d
342, 350 (5th Cir. 2008); see also Brooks v. George County, 84 F.3d 157, 165 (5th Cir.
1996). Therefore, the Supervisor Defendants had no authority to train or supervise any
law enforcement officers, and Fifth Circuit precedents indicate that Section 1983
defendants can not be liable for failing to supervise officers when they have no legal
authority to do so. See, e.g. Whitley, 726 F.3d at 645; Blank v. Bell, 634 F. App’x 445,
449 (5th Cir. 2016).
Finally, Section 1983 “did not abrogate the absolute immunity enjoyed by
legislators for actions taken within the legitimate sphere of legislative authority.”
Loupe v. O’Bannon, 824 F.3d 534, 537 (5th Cir. 2016). Indeed, the “immunity of
legislators for acts within the legislative role” is an “entrenched feature of our § 1983
jurisprudence.” Id. Plaintiff’s claims against the Supervisor Defendants arise from
their actions as legislators. Plaintiff alleged that they “established policies and
procedures for the Wilkinson County Sheriff Department,” and that they had a duty
“to refrain from enforcing or continuing in effect” certain policies and procedures.
Plaintiff did not allege any “individual act of a supervisor as having causal relation to
16

the subject matter of this litigation and the personal injuries sustained by plaintiff .
. . .” Roberts v. Williams, 302 F. Supp. 972, 985 (N.D. Miss. 1969). Rather, all of his
allegations concern their joint actions as a legislative body. Accordingly, each of the
Board Defendants enjoys legislative immunity from liability in their individual
capacity for Plaintiff’s claims. The Court grants Defendants’ motion in this respect.
C.

Conclusion
For the reasons provided above, the Court grants in part and defers ruling in

part on Defendants’ Motion for Judgment on the Pleadings [19] as to Plaintiff’s federal
claims. Specifically, the Court defers ruling on Plaintiff’s bystander liability claim
against Defendant Gloria Ashford, but the Court grants the motion in all other
respects.
IV. MOTION TO DISMISS [22]
Defendants Wilkinson County Sheriff’s Department, Wilkinson County Board
of Supervisors, Reginald Lee Jackson, Ed Alexander, Richard L. Hollins, Will Seal,
Venton McNabb, and Jennings Nettles filed a Motion to Dismiss [22] Plaintiff’s statelaw claims. Defendants C. L. Thompson and Gloria Ashford joined [25] in the motion.3
A.

Board of Supervisors & Sheriff’s Department
First, the Court has already granted the Motion for Judgment on the Pleadings

[16] filed by the Wilkinson County Sheriff’s Department and Wilkinson County Board

3

Again, the Court will refer to these Defendants as the “individual
Defendants.” The present motions do not address Plaintiff’s claims against the
inmate Defendants – Greg Chambers, Kendrick Davis, and Darrius Kilburn.
17

of Supervisors. Plaintiff agreed that neither the Sheriff’s Department nor Board of
Supervisors were proper parties in interest insofar as neither exists as a legal entity
separate from the County itself. Therefore, all claims asserted against them will be
construed as claims against Wilkinson County.
B.

Assault & Battery
1.

Wilkinson County

The Mississippi Tort Claims Act (“MTCA”) “provides the exclusive remedy
against a governmental entity or its employees” under Mississippi law. Covington
County Sch. Dist. v. Magee, 29 So. 3d 1, 4 (Miss. 2010). The MTCA reaffirmed the
sovereign immunity of Mississippi and its political subdivisions. MISS. CODE ANN. § 1146-3(1). But the State waived its sovereign immunity in certain circumstances. MISS.
CODE ANN. § 11-46-5(1). The Act specifically provides that “a governmental entity shall
not be liable or be considered to have waived immunity for any conduct of its employee
if the employee’s conduct constituted fraud, malice, libel, slander, defamation, or any
criminal offense.” MISS. CODE ANN. § 11-46-7(2). Both assault and battery constitute
“some form of malice or criminal offense,” and, therefore, the County enjoys sovereign
immunity against these claims. McBroom v. Payne, No. 1:06-CV-1222-LG-JMR, 2010
U.S. Dist. LEXIS 107124, at *23-*24 (S.D. Miss. Oct. 6, 2010); see also Holloway v.
Lamar County, No. 2:15-CV-86-KS-MTP, 2015 U.S. Dist. LEXIS 168119, at *13 (S.D.
Miss. Dec. 16, 2015), rev’d in part on other grounds 2017 U.S. App. LEXIS 3130 (5th
Cir. Feb. 22, 2017); Lewis v. Marion County, No. 2:13-CV-76-KS-MTP, 2013 U.S. Dist.
LEXIS 102758, at *3 (S.D. Miss. July 23, 2013).
18

In response to Defendant’s motion, Plaintiff failed to address the statutory law
cited above. Instead, Plaintiff cited a variety of cases addressing federal claims under
Section 1983, and Plaintiff argued that the claims were actionable under the
Constitution of the State of Mississippi. To be clear, Plaintiff’s clams of assault and
battery were not pleaded in the Amended Complaint as either Section 1983 claims or
state constitutional claims. Rather, they were pleaded as tort claims. Therefore, no
Section 1983 or state constitutional claims of assault and battery are currently before
the Court.
2.

Individual Defendants

The individual Defendants argue that Plaintiff’s claims of assault and battery
are barred by the applicable statute of limitations. The statute provides: “All actions
for assault, [or] assault and battery . . . shall be commenced within one (1) year next
after the cause of such action accrued.” MISS. CODE ANN. § 15-1-35. An assault claim
accrues on the date of injury. City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1217
(Miss. 1990); Gilmer v. Trowbridge, No. 3:08-CV-136-TSL-JCS, 2009 U.S. Dist. LEXIS
109136, at *11-*12 (S.D. Miss. Nov. 23, 2009). Likewise, a battery claim accrues on the
date of injury. Jones v. Tyson Foods, Inc., 971 F. Supp. 2d 632, 641 (N.D. Miss. 2013);
Buchanan v. Gulfport Police Dep’t, No. 1:08-CV-1299-LG-RHW, 2011 U.S. Dist. LEXIS
157413, at *11 (S.D. Miss. Feb. 3, 2011). Plaintiff alleged that the injury occurred on
August 17, 2015, but he filed this suit on December 14, 2016 – over one year after the
injury occurred. Therefore, his claims of assault and battery are barred by the
applicable statute of limitations.
19

Plaintiff argues that his claims of assault and battery are not barred by the
applicable statute of limitations because of the MTCA’s tolling provision. See MISS.
CODE ANN. § 11-46-11(3). However, the MTCA’s notice and tolling provisions “are not
applicable to a government employee sued in his individual capacity for actions not
within the course and scope of his employment.” McGehee v. DePoyster, 708 So. 2d 77,
78 (Miss. 1998). By definition, a government employee is not “acting within the course
and scope of his employment” if his conduct “constituted fraud, malice, libel, slander,
defamation, or any criminal offense other than traffic violations,” MISS CODE ANN. §
11-46-7(2), and as explained above, both assault and battery constitute “some form of
malice or criminal offense.” McBroom, 2010 U.S. Dist. LEXIS 107124 at *23-*24.
Therefore, Plaintiff’s claims of assault and battery fall outside the scope of the MTCA,
and they are subject to the general statute of limitations for intentional torts located
at MISS. CODE ANN. § 15-1-35. Ducksworth v. Rook, No. 2:14-CV-146-KS-MTP, 2015
U.S. Dist. LEXIS 79173, at *6 (S.D. Miss. June 18, 2015); Borgognoni v. City of
Hattiesburg, No. 2:13-CV-HSO-RHW, 2015 U.S. Dist. LEXIS 157619 (S.D. Miss. Mar.
31, 2015).
C.

Negligence
Defendants argue that Plaintiff’s negligence claims are barred by the MTCA’s

“inmate exception.” Plaintiff did not respond to this argument in briefing. The MTCA
provides, in relevant part: “A governmental entity and its employees acting within the
course and scope of their employment or duties shall not be liable for any claim . . . [o]f
any claimant who at the time the claim arises is an inmate of any detention center, jail,
20

. . . or other such institution . . . .” MISS. CODE ANN. § 11-46-9(1)(m). The statute “does
not make any distinctions between ‘convicted’ and ‘non-convicted’ inmates,” and,
therefore, it applies to pretrial detainees. Liggans v. Coahoma County Sheriff’s Dept.,
823 So. 2d 1152, 1155 (Miss. 2002). In fact, the statute “does not contemplate any
distinction between inmates being detained pursuant to a lawful court order and
unlawfully-held detainees,” such as those alleging false imprisonment. Fleming v.
Tunica County Miss., 497 F. App’x 381, 389 (5th Cir. 2012). Therefore, as Plaintiff
alleged that he was an inmate at the time his claims arose, neither the County nor the
individual Defendants may be held liable for his negligence claims.
Additionally, Plaintiff specifically alleged that the individual Defendants “were
acting in the course and scope of their employment.” The MTCA does not exclude
negligence claims from the definition of “course and scope of employment,” as it does
certain intentional torts. See, e.g. MISS. CODE ANN. § 11-46-5(2). But it does provide
that “no employee shall be held personally liable for acts or omissions occurring within
the course and scope of the employee’s duties.” MISS. CODE ANN. § 11-46-7(2).
Therefore, the individual Defendants may not be held liable in their individual
capacities for Plaintiff’s negligence claims.
D.

Punitive Damages
Defendants argue that punitive damages are not available for Plaintiff’s state-

law claims. Candidly, the Court does not know what state-law claims, if any, remain.
Regardless, the MTCA provides: “No judgment against a government entity or its
employee for any act or omission for which immunity is waived under this chapter
21

shall include an award for exemplary or punitive damages . . . .” MISS. CODE ANN. § 1146-15(2). Therefore, Plaintiff can not recover punitive damages from the County or the
individual Defendants in their official capacities under state law. Seibert v. Jackson
County, No. 1:14-CV-188-KS-MTP, 2015 U.S. Dist. LEXIS 102632, at *28-*29 (S.D.
Miss. Aug. 5, 2015). However, this provision does not bar the recovery of punitive
damages for any claim falling outside the scope of the MTCA. See Meaux v. Miss. Dep’t
of Public Safety, No. 1:14-CV-323-KS-RHW, 2015 U.S. Dist. LEXIS 73749, at *10-*11
(S.D. Miss. June 8, 2015).
F.

Jury Demand
Finally, Defendants argue that Plaintiff’s claims subject to the MTCA must be

tried by the Court, rather than by a jury. Defendants are correct. The MTCA provides:
“The judge of the appropriate court shall hear and determine, without a jury, any suit
filed under the provisions of this chapter.” MISS. CODE ANN. § 11-46-13(1). Therefore,
to the extent that any such claims remain, Plaintiff’s state-law claims within the scope
of the MTCA must be tried by the Court, rather than a jury.
V. MOTION FOR DISCOVERY [41]
Plaintiff filed a motion seeking leave to conduct limited discovery before the
Court addresses Defendants’ qualified immunity defenses. The Fifth Circuit “has
established a careful procedure under which a district court may defer its qualified
immunity ruling if further factual development is necessary to ascertain the
availability of that defense.” Hinojosa, 807 F.3d at 664.
First, the district court must determine that the plaintiff’s pleadings
22

assert facts which, if true, would overcome the defense of qualified
immunity. Thus, a plaintiff seeking to overcome qualified immunity must
plead specific facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he has alleged and
that defeat a qualified immunity defense with equal specificity. When
reviewing a complaint that meets this standard, the district court may
defer its qualified immunity ruling and order limited discovery if the
court remains unable to rule on the immunity defense without further
clarification of the facts.
Id. (citations omitted). In other words, if a plaintiff has not alleged sufficient facts to
defeat a qualified immunity defense, then the Court may not defer its qualified
immunity ruling pending limited discovery. But if a plaintiff alleged sufficient facts to
defeat a qualified immunity defense, and the Court desires further clarification of the
facts, it may defer ruling on the issue of qualified immunity pending the completion of
limited discovery.
As noted above, Plaintiff only alleged a single specific fact as to one of the
individual Defendants. He alleged that Defendant Gloria Ashford “could be heard
chanting ‘get him, get him,’” as other officers and inmates beat him while he was in
custody. The Court held that Plaintiff had satisfied the qualified immunity heightened
pleading standard, and that this allegation could reasonably be construed as satisfying
the elements of a bystander liability claim under Section 1983. Accordingly, the Court
deferred ruling on Defendant Ashford’s qualified immunity defense, pending the
completion of limited discovery. However, Plaintiff failed to allege any specific facts
whatsoever as to any of the other individual Defendants or the remainder of the
Section 1983 claims pleaded in the Amended Complaint. Therefore, the Court grants
Plaintiff’s Motion for Discovery [41] as to the bystander liability claim against
23

Defendant Gloria Ashford, but the Court denies it in all other respects.
VI. CONCLUSION
For these reasons, the Court grants Defendants’ Motion for Judgment on the
Pleadings [16] as to Plaintiff’s claims against the Wilkinson County Sheriff’s
Department and Wilkinson County Board of Supervisors.
The Court also grants in part and defers ruling in part on Defendants’
Motion for Judgment on the Pleadings [19] as to Plaintiff’s federal claims. Specifically,
the Court defers ruling on the defense of qualified immunity as applied to Plaintiff’s
bystander liability claim against Defendant Gloria Ashford, but the Court grants the
motion in all other respects.
The Court grants Defendants’ Motion to Dismiss [22] Plaintiff’s state-law
claims.
The Court grants in part and denies in part Plaintiff’s Motion for Discovery
[41]. Specifically, the Court grants the motion as to limited discovery on Plaintiff’s
bystander liability claim against Defendant Ashford, but the Court denies the motion
in all other respects.
The Court instructs the parties to immediately contact the chambers of the
Magistrate Judge to schedule a case management conference in this matter.
Finally, Plaintiff asserted fifteen different “counts” in his Amended Complaint
[42]. He generally asserted each count against all Defendants, and – as noted
repeatedly above – he failed to provide factual support for most of his claims. In fact,
he only asserted one specific fact as to one individual Defendant. At times, Plaintiff’s
24

theories of liability were vague, and it was difficult for the Court to discern the nature
of Plaintiff’s claims or the specific constitutional rights that he alleged had been
violated. Candidly, Plaintiff’s pleading was so imprecise that the Court is unable to
discern what claims, if any, remain for adjudication after the rulings on Defendants’
dispositive motions.
When confronted with such imprecise pleading, the Court relies on the parties’
briefing to narrow the legal and factual issues and bring the case into focus –
particularly when conducting a fact-intensive qualified immunity analysis. To their
credit, Plaintiff’s counsel conceded that Wilkinson County, rather than the Wilkinson
County Sheriff’s Department or Wilkinson Count Board of Supervisors, is the proper
municipal party in interest. But Plaintiff’s counsel failed to bring the great bulk of
Plaintiff’s claims into focus.
Federal judges in this state have repeatedly admonished attorneys for a
“shotgun approach to pleadings,” in which one “heedlessly throws a little bit of
everything into his complaint in the hopes that something will stick.” S. Leasing
Partners, Ltd. v. McMullen, 801 F.2d 783, 788 (5th Cir. 1986).4 In fact, the Court

4

See, e.g. Newberry v. Champion, No. 3:16-CV-143-DMP-RP, 2017 U.S. Dist.
LEXIS 38729, at *4-*5 (S.D. Miss. Mar. 17, 2017); Copeland v. Axio Mortg. Group
LLC, No. 1:16-CV-159-HSO-JCG, 2016 U.S. Dist. LEXIS 106249, at *10-*14 (S.D.
Miss. Aug. 11, 2016); Ducksworth, 2015 U.S. Dist. LEXIS 20563 at *14-*16; Payne
v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2014 U.S. Dist. LEXIS 22052, at *5 n.
3 (S.D. Miss. Feb. 21, 2014); Ward v. Life Investors Ins. Co. of Am., 383 F. Supp. 2d
882, 889 (S.D. Miss. 2005); Austin v. Bayer Pharms. Corp., No. 5:13-CV-28-KS-MTP,
2013 U.S. Dist. LEXIS 137480, at *5 n. 1 (S.D. Miss. Sept. 25, 2013); BC’s Heating
& Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., No. 2:11-CV-136-KS-MTP,
2012 U.S. Dist. LEXIS 24420, at *27 (S.D. Miss. Feb. 27, 2012).
25

recently sanctioned an attorney for vexatiously multiplying proceedings with shotgun
pleading and argumentation. See Payne v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP,
2015 U.S. Dist. LEXIS 42118, at *9-*15 (S.D. Miss. Mar. 31, 2015), aff’d 2017 U.S. App.
LEXIS 4495 (5th Cir. Mar. 14, 2017).
The Eleventh Circuit astutely described the problems that “shotgun pleading”
causes:
If the trial judge does not quickly demand repleader, all is lost – extended
and aimless discovery will commence, and the trial court will soon be
drowned in an uncharted sea of depositions, interrogatories, and
affidavits. Given the massive record and loose pleadings before it, the
trial court, whose time is constrained by the press of other business, is
unable to squeeze the case down to its essentials; the case therefore
proceeds to trial without proper delineation of issues, as happens
frequently. An appeal ensues, and the court of appeals assumes the trial
court’s responsibility of sorting things out. The result is a massive waste
of judicial and private resources; moreover, the litigants suffer, and
society loses confidence in the courts’ ability to administer justice.
Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th Cir.
1998) (punctuation, internal citations omitted). The Fifth Circuit has observed that
“shotgun pleading” of this sort treads dangerously close to Rule 11 territory.
McMullan, 801 F.2d at 788 (“If Rule 11 is to mean anything and we think it does, it
must mean an end to such expeditionary pleadings.”); see also Paylor v. Hartford Fire
Ins. Co., 748 F.3d 1117, 1125-28 (11th Cir. 2014) (decrying shotgun pleading and the
“discovery goat rodeo” that inevitably follows it).
Vague, imprecise “shotgun” pleading clouds the legal and factual issues in a
case. At best, it indicates an attorney’s failure to fully analyze the case and adopt a
coherent defense or theory of liability. At worst, it constitutes intentional obfuscation.
26

Regardless of the attorney’s motivation, it escalates the cost of litigation for both the
parties and the Court, requiring voluminous discovery and motions to pinpoint the
specific issues for trial – a task that Rule 11 requires attorneys to perform, to some
degree, before they file a pleading. See FED. R. CIV. P. 11(b)(2). Moreover, shotgun
pleading hurts one’s client insofar as precise, well-honed pleading and argumentation
will almost always reap better results than a scattershot approach. The Court advises
Plaintiff’s counsel to be mindful of this admonition in the future.
SO ORDERED AND ADJUDGED this

24th day of April, 2017.

s/Keith Starrett
__
UNITED STATES DISTRICT JUDGE

27