Mills v. Adams County Sheriff Dept. et al

Filing 110

ORDER granting 76 Motion for Summary Judgment; granting 79 Motion for Summary Judgment; adopting Report and Recommendations re 92 Report and Recommendations. Signed by District Judge David C. Bramlette, III on 9/4/19 (LAT)

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

ANTHONY DUANE MILLS

VS.

PLAINTIFF

CIVIL ACTION NO.: 5:17-CV-110-DCB-MTP

TRAVIS PATTEN, ANTHONY NETTLES,
MATHEW HENDERSON, HENRY FRANK, JR.,
TONY NICHOLS, JERRY BROWN,
STANLEY SEARCH, JR., JACKIE DENNIS
and WALTER MACKEL

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE
MICHAEL T. PARKER
THIS MATTER is before the Court on Defendant Patten’s
Motion (Doc. 76) for Summary Judgment, Defendant Mackel’s
Motion (Doc. 79) for Summary Judgment, and United States
Magistrate Judge Michael T. Parker’s Report and Recommendation
(Doc. 92). Having reviewed the Plaintiff’s complaint and
Defendants Patten and Mackel’s Motions for Summary Judgment,
the Court agrees that the Motions [76] and [79] be granted.
BACKGROUND
Plaintiff Mills, proceeding pro se and in forma pauperis,
was incarcerated at the Adams county Jail but has since been

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released and lives in Natchez, Mississippi. Mills sues Mackel
under 42 U.S.C. §1983, claiming that Mackel — at the time a
deputy with the Adams County Sheriff’s Department — entered
the Plaintiff’s home, held a gun to his head, raped him, and
inserted an object into his anus.
Mills sues Patten – Sheriff of the Adams County Sheriff’s
Department — under 42 U.S.C. §1983, claiming that Patten used
excessive force against Mills. The day after the alleged rape,
Mills’ wife called the police because she noticed that Mills
had cut his wrists with a razor. Patten responded to prevent
the Plaintiff’s self-harm. When Patten arrived, Mills had
locked himself in the bathroom and was continuing to cut
himself. Defendant Patten broke down the door to the bathroom
and tased Mills before subduing him and taking Mills to the
hospital for treatment.
On November 1, 2018, Defendants Mackel and Patten each
filed a Motion for Summary Judgment (Doc. 79) and (Doc. 76).
Magistrate Judge Parker filed his Report and Recommendation on
July 16, 2019. At that time, the Plaintiff had failed to
respond to either Defendant’s Motion for Summary Judgment.
Objections to the Report and Recommendation were due on July
30, 2019. The Plaintiff, instead of filing an objection to the
Report and Recommendation, filed a Motion for an Extension of

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Time to File a Response (Doc. 99) and then a Response in
Opposition of the Motion for Summary Judgment (Doc. 101). This
Court addresses those Motions in a separate order.
ANALYSIS
Magistrate Judge Parker recommends that Mackel’s Motion
for Summary Judgment should be entered, noting that the
Plaintiff did not allege that Defendant Mackel acted under
color of state law when he allegedly raped Plaintiff. A §1983
claim requires that the Defendant acted with the authority of
state law. See Doe v. Columbia-Brazoria Indep. Sch. Dist. By &
through Bd. Of Trustees, 855, F.3d 681, 687 (5th Cir.
2017)(quoting James v. Texas Collin Cnty., 535 F.3d 365, 373
(5th Cir. 2008)).
Here, as Magistrate Judge Parker writes, “There is no
nexus between the rape and Defendant Mackel’s authority as a
law enforcement officer or the performance of his official
duties.”

Plaintiff did not allege that Defendant Mackel

identified himself as a law enforcement officer, that he was
in uniform, or that he used his authority as an officer to
harm the Plaintiff. The alleged rape occurred in the
Plaintiff’s home and had no relation to police activities or
police custody. Therefore, this §1983 claim must fail because

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the defendant did not act under color of state law as is
required by the statute.
Magistrate Judge Parker recommends that Patten’s Motion
for Summary Judgment should be granted, noting that Officer
Patten acted reasonably when he tased the Plaintiff. To
prevail on an excessive force claim, the Plaintiff must show:
(1) injury, (2) which resulted directly and only from a use of
force that was clearly excessive, and (3) the excessiveness of
which was clearly unreasonable. Hanks v. Rogers, 853 F.3d 738,
744 (5th Cir. 2017)(quoting Cooper v. Brown, 844 F.3d 517, 522
(5th Cir. 2016)).
The Plaintiff was cutting himself with a razor and
refused to open the bathroom door, prompting Defendant Patten
to kick the door down and tase the Plaintiff. Precedent
establishes that Officer Patten acted reasonably in his
decision. See Buchana v. Gulfport Police Dept., 530 Fed.App’x
301, 314 (5th Cir. 2013)(holding that police officers used
reasonable amount of force in tasing suspect who refused to
comply with instructions to leave his bat on the ground);
Pratt v. Harris Cty., Tex., 822, F.3d 174, 182(holding that
police officers use of taser was not excessive when suspect
repeatedly ignored instructions and resisted handcuffing);
Stanley v. City of Baytown, Tex., 2005 WL 2757370 (S.D. Tex.

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Oct. 25, 2005)(holding officer’s decision to tase Plaintiff
after Plaintiff physically resisted medical personnel after
suffering a seizure and ignoring officers instructions was not
an unreasonable use of force). Therefore, Plaintiff’s §1983
claim fails as Defendant Patten used reasonable force under
the circumstances.
Accordingly, the Court finds that the case should be
dismissed with prejudice for failure to allege that Mackel acted
within the color of state law and for failure to show that Patten
used unreasonably excessive force.
IT IS HEREBY ORDERED that Magistrate Judge Michael Parker’s
Report and Recommendation (Doc. 92) is ADOPTED as the findings
and conclusions of this Court;

IT IS FURTHER ORDERED that a Final Judgment dismissing the
case with prejudice will be entered on even date herewith;
SO ORDERED this the 4th day of September, 2019.
_____/s/ David Bramlette______
United States District Judge

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