Patterson v. City of McComb, Mississippi et al

Filing 53

ORDER granting 25 Motion for Judgment on the Pleadings Signed by Honorable David C. Bramlette, III on 10/12/2018 (ECW)

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

PLAINTIFF

VS.

CIVIL ACTION NO. 5:18-cv-74(DCB)(MTP)

CITY OF McCOMB, MISSISSIPPI; SCOTT
McKENZIE, in His Individual Capacity and
His Official Capacity as the Chief of
Police for the City of McComb, Mississippi;
RODNEY NORDSTROM, in His Individual Capacity
and His Official Capacity as a Deputy Chief
of Police for the City of McComb, Mississippi;
KURT TAYLOR, in His Individual Capacity and
His Official Capacity as a Police Officer for
the City of McComb, Mississippi; PIKE COUNTY,
MISSISSIPPI; WARREN GILMORE, in His Individual
Capacity and in His Official Capacity as a
Deputy Sheriff for Pike County, Mississippi;
SONYA WELLS, in Her Individual Capacity and
Her Official Capacity as the Municipal Court
Clerk for the City of McComb, Mississippi;
BARRETT PICKETT, and JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendants Pike County,
Mississippi,

and

Pike

County

Sheriff’s

Deputy

Warren

Gilmore

(“Gilmore”)’s Motion for Judgment on the Pleadings (docket entry
25).1
This Court’s Order of September 18, 2018 (docket entry 52)
stayed all discovery in this case until such time as the Court has
ruled on the defendants’ Motion for Judgment on the Pleadings.
Upon careful consideration of the defendants’ Motion for Judgment

1

Although there are additional defendants in this lawsuit, the
present Motion for Judgment on the Pleadings is brought only by Pike
County and Gilmore.

on the Pleadings and the Memorandum Briefs of the parties, the
Court finds the following:
This case arises out of the January 26, 2017, arrest of
Zachary

Patterson

by

the

City

of

McComb

Police

Department.

Plaintiff Patterson contends that his arrest and incarceration
violated both federal and state laws.
On May 25, 2018, Patterson filed suit in this Court alleging
federal and state law claims against Deputy Gilmore in both his
official and individual capacities.

(Docket entry 1).

The

plaintiff subsequently filed an Amended Complaint with identical
allegations.

(Hereinafter “Complaint” or “Docket entry 13”).

In

particular, Patterson asserts the following federal claims against
Gilmore: (1) violation of due process; (2) false arrest; (3)
malicious prosecution; (4) conspiracy to maliciously prosecute; and
(5) negligence/gross negligence.

The plaintiff also asserts state

law claims for (1) violation of due process; (2) false arrest; (3)
malicious prosecution; (4) conspiracy to maliciously prosecute; and
(5)

negligence/gross negligence.2
The moving defendants contend that the plaintiff’s claims

against Deputy Gilmore in his individual capacity under federal law
are barred by qualified immunity; that the plaintiff’s federal

2

The plaintiff does not clearly state whether his claims for
malicious prosecution, conspiracy, and negligence/gross negligence are
alleged under federal law, state law, or both. The Court therefore
treats said claims as being alleged under both federal and state law.

2

claims against Deputy Gilmore in his official capacity are barred
by Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978); that the
plaintiff’s claims under state law against Deputy Gilmore in his
official capacity as a Pike County Deputy are barred by the
Mississippi Tort Claims Act (“MTCA”); and that the plaintiff’s
state law claims against Deputy Gilmore in his individual capacity
are also barred by the MTCA.
According to the plaintiff’s Complaint, on January 26, 2017,
Barrett Pickett filed a sworn criminal affidavit charging Patterson
with disturbing the peace, accusing him of unlawfully surveying
Pickett’s property and continuing “to attempt to engage in a verbal
altercation with Mr. Pickett until words were exchanged between the
two of them.”

Docket entry 13 at ¶ 15.

The plaintiff further

contends that on or about January 26, 2017, Pickett filed a second
sworn criminal affidavit charging the plaintiff with trespass and
accusing him of “unlawfully and knowingly without the authority of
law [going] on the private property of Barrett Pickett at ...
McComb MS 39648.”

Id. at ¶ 16.

The plaintiff further alleges that on February 23, 2017, he
received a call from City of McComb Police Officer Rodney Nordstrom
telling him that a warrant had been issued for his arrest.
¶17.

Id. at

Nordstrom purportedly told Patterson to come to the police

station to pick up his paperwork.

Id. at ¶ 18.

The plaintiff

consulted with attorney Ronnie Whittington, who allegedly told him

3

that Deputy Warren Gilmore was being “pissy about the Plaintiff not
being arrested.”

Id. at ¶ 23.

According to the plaintiff,

Whittington told the plaintiff to fill out his paperwork at the
police station.

Id. at ¶ 24.

The plaintiff asserts that he went

to the Police Department where Officer Kurt Taylor had him enter
the booking area and took his personal effects.

Id. at ¶ 27-31.

Thereafter, Taylor opened a jail cell door and placed Patterson in
the cell.

Id. at ¶ 32.

The plaintiff asserts that the City of McComb Municipal Court
had in effect, at the time of his arrest, a standing order that all
persons arrested, with or without a warrant, for any misdemeanor
prosecuted before the municipal court “will be released on their
personal recognizance as soon as practicable after arrest ....”
Id. at ¶ 19.

Patterson further alleges that he was arrested and

jailed in contravention of the standing order.

Id. at ¶ 38.

The plaintiff also contends “upon information and belief” that
Warren Gilmore is friends with defendant Barrett Pickett and that
Gilmore called City officers Scott McKenzie and Rodney Nordstrom to
tell them that “he wanted the Plaintiff arrested and incarcerated”
and that the City officers “agreed to arrest and incarcerate
Plaintiff in violation of the City of McComb’s standing Order on
Recognizance Bonds.”
The

plaintiff

Id. at ¶ 59.
alleges

that

he

was

arraigned,

and

that

subsequent to his arraignment he was found not guilty on the

4

disturbing the peace and trespassing charges filed by Pickett. Id.
at ¶¶ 63-64.
CLAIMS
On May 25, 2018, Patterson filed suit in this Court alleging
both federal and state law claims against Pike County Deputy Warren
Gilmore in both his official and individual capacities.
entry 1).

(Docket

Subsequently, he filed an Amended Complaint containing

identical allegations.

(“Complaint” or “Docket entry 13”).

He

asserts the following federal claims against the moving defendants:
(1) violation of due process; (2) false arrest; (3) conspiracy to
maliciously prosecute; and (4) negligence/gross negligence.

As

stated above, the Court treats these claims as being alleged under
both federal and state law.
The plaintiff also seeks declaratory relief on the same basis
as the claims above.

The moving defendants contend that the

plaintiff has failed to state a claim and is not entitled to any
declaratory relief.
STANDARD OF REVIEW
Rule 12(c) of the Federal Rules of Civil Procedure governs the
defendants’ Motion inasmuch as a responsive pleading has already
been filed.

See, e.g., Jones v. Greninger, 188 F.3d 322, 324 (5th

Cir.1999); Robertson v. Mullins, 2:12-cv-57, 2013 WL 1319759, at *1
(N.D. Miss. Mar. 26, 2013).

The standard for addressing a motion

for judgment on the pleadings under Rule 12(c) is the same as that
5

for addressing a motion to dismiss under Rule 12(b)(6).

In re

Great Lakes Dredge & Dock Co., 624 F.3d 201, 209–10 (5th Cir. 2010).
Therefore,

to

survive

the

moving

defendants’

motion

the

plaintiff’s Complaint must provide the grounds for entitlement to
relief - including factual allegations that, when assumed to be
true, “raise a right to relief above the speculative level.”
Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007)(quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553-56 (2007)).
The complaint must allege sufficient factual matter “to state
a claim that is plausible on its face.”

Twombly, 550 U.S. at 570.

“[W]hen the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, ‘this basic deficiency
should ... be exposed at the point of minimum expenditure of time
and money by the parties and the court.’”

Id. at 558 (quoting 5

Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1216 at 234)(quoting Daves v. Hawaiian Dredging Co.,
114 F. Supp. 643, 645 (D. Haw. 1953)).
A court should not accept “threadbare recitals of a cause of
action's elements, supported by mere conclusory statements,” which
“do not permit the court to infer more than the mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677-679 (2009).

6

PLAINTIFF’S CLAIMS UNDER FEDERAL AND STATE LAW

I. Federal Claims - Individual Capacity
The plaintiff asserts his claims under Section 1983 against
Deputy Gilmore in his individual capacity for: (1) violation of due
process; (2) false arrest; (3) conspiracy to maliciously prosecute;
and (4) negligence/gross negligence.
Law enforcement officials, “like other public officials acting
within the scope of their official duties, are shielded from claims
of

civil

liability,

including

§

1983

claims,

by

qualified

immunity.” Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 753
(5th Cir. 2001). A law enforcement officer is entitled to the cloak
of qualified immunity “unless it is shown that, at the time of the
incident, he violated a clearly established constitutional right.”
Mangieri v. Clifton, 29 F.3d 1012 (5th Cir. 1994).

Significantly,

qualified immunity provides “ample protection to all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
In assessing a claim of qualified immunity, courts apply a
two-part analysis.

The threshold question is “whether Plaintiff’s

allegations establish a constitutional violation.” Hope v. Pelzer,
536 U.S. 730, 736 (2002).
been

violated

were

the

If “no constitutional right would have
allegations

established,

there

is

no

necessity for further inquiries concerning qualified immunity.”

7

Saucier v. Katz, 533 U.S. 194 (2001); see also Pearson v. Callahan,
555 U.S. 223 (2009)(holding that “order of battle” outlined in
Saucier is not mandatory in every instance).

However, “if a

violation could be made out, the next sequential step is to ask
whether the right was clearly established.”
201.

Saucier, 533 U.S. at

The “relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
confronted.” Id. at 202.
The

purpose

of

qualified

immunity

is

to

protect

public

officials from the “burden of fighting lawsuits which arise from
the good faith performance of their duties.” Ren v. Towe, 130 F.3d
1154, 1159 (5th Cir. 1997).

Thus, qualified immunity “is not just

immunity from judgment, but rather, is immunity from all aspects of
suit.”

Jacques v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).

The qualified immunity issues in a case are “threshold” issues and
must be dealt with as expeditiously as possible and prior to
resolving non-immunity issues. See Harlow v. Fitzgerald, 102 S.Ct.
2727, 2728 (1982); see also L.U.Civ.R. 16.1(B)(4).
The Fifth Circuit, in order to fulfill the protective purpose
of qualified immunity, has long required more than mere “notice
pleading” when a claimant asserts a Section 1983 claim against an
official in his individual capacity.

Elliott v. Perez, 751 F.2d

1472 (5th Cir. 1985). More specifically, when an officer raises the

8

qualified immunity defense, a complaint “must present more than
bald allegations and conclusory statements.”

Wicks v. Mississippi

State Employment Svcs., 41 F.3d 991, 995 (5th Cir. 1995).

In fact,

a plaintiff must “allege with sufficient particularity all facts
establishing a right to recovery, including facts which negate the
official’s immunity defense.”
F.3d

385

(5th

Cir.

Id.; see also Nunez v. Simms, 341

2003)(holding

that

heightened

pleading

in

qualified immunity cases requires plaintiff to rest complaint on
more than conclusions alone); Foster v. City of Lake Jackson, 28
F.3d 425 (5th Cir. 1994)(burden of negating qualified immunity
defense lies with plaintiff).
Plaintiffs

“cannot

be

allowed

to

rest

on

general

characterizations, but must speak to the factual particulars of the
alleged actions.” Floyd v. City of Kenner, 351 Fed. Appx. 890, 893
(5th Cir. 2009)(citing Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th
Cir.

1995).

Furthermore,

“[h]eightened

pleading

requires

allegations of fact focusing specifically on the conduct of the
individual who caused the plaintiff’s injury.” Reyes v. Sazan, 168
F.3d 158, 161 (5th Cir. 1999).

Patterson’s Complaint does not meet

the heightened pleading standard.

A. Due Process and False Arrest
The plaintiff alleges that the “defendants” violated his right
to due process by “processing, fingerprinting, photographing,

9

searching, and incarcerating” him in violation of the City’s
Standing Order on Recognizance Bonds.

Id. at ¶ 79.

To the extent

the plaintiff is asserting that Gilmore is liable for a due process
violation for “processing, fingerprinting, photographing, [and]
searching” him, his claim fails.

“Personal involvement is an

essential element of a civil rights cause of action.”

Thompson v.

Steele, 709 F.2d 381, 382 (5th Cir. 1983); see also Borden v.
Jackson County, 2012 U.S. Dist. LEXIS 134400 (S.D. Miss. Aug. 24,
2012)(holding

that

a

plaintiff

must

demonstrate

participation in alleged unconstitutional conduct).

personal

There are no

allegations that Gilmore personally participated in processing,
fingerprinting, photographing or searching the plaintiff and,
therefore, Gilmore can have no liability.
To the extent that the plaintiff is attempting to assert a
false arrest claim via the Fourteenth Amendment’s due process
clause, the same is not cognizable.

Although the Fourteenth

Amendment is relevant because it applies the Fourth Amendment to
the states, claims of unlawful arrest and detention should be
analyzed under the Fourth Amendment and not under the Fourteenth
Amendment’s Due Process Clause. See Francisco v. Edmonson, 2018 WL
913186, at *3 (W.D. La. Feb. 15, 2018).

Thus, the plaintiff’s

wrongful incarceration claim must be analyzed under the Fourth
Amendment.
To prevail on a false arrest claim under the Fourth Amendment,

10

Patterson must prove that the officer who made the arrest did so
without a properly issued warrant or probable cause.
Warren, 779 F.2d 245 (5th Cir. 1985).

Dennis v.

There is no constitutional

violation if an arrest is based on a lawfully issued warrant or
probable

cause,

regardless

of

the

outcome

of

the

criminal

Smith v. Gonzalez, 670 F.2d 522 (5th Cir. 1982).

prosecution.

In this case, the plaintiff’s claim is based on the fact that
he was arrested and jailed by City of McComb officers for a
misdemeanor violation in contravention of the City’s Standing Order
on Recognizance. First, it is clear from the plaintiff’s Complaint
that he was arrested on a lawfully issued warrant from the City of
McComb Municipal Court.
negates

any

false

(Docket entry 13, ¶¶ 15-16).

arrest

claim.

Moreover,

the

This fact
plaintiff’s

Complaint makes it clear that Barrett Pickett, not Deputy Gilmore,
is the person who swore out charges against the plaintiff and had
the warrant issued. Id. at ¶¶ 15-34. Furthermore, the plaintiff’s
Complaint makes it clear that City of McComb officers, not Deputy
Gilmore, executed on the criminal arrest warrant issued by the City
of McComb Municipal Court and placed Patterson in jail.

Id. at ¶¶

17-18, 26-35.
“Personal involvement is an essential element of a civil
rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th
Cir. 1983).

Because the allegations of the plaintiff’s Complaint

specify, with no uncertainty, that Pickett made out the affidavit,

11

which the City Court used to issue an arrest warrant, and City of
McComb officers executed on that warrant, Deputy Gilmore had no
personal participation in the plaintiff’s arrest and the claim
against him must be dismissed.
In fact, the only allegation as to Deputy Gilmore is that an
attorney purportedly told the plaintiff that he heard that Gilmore
was “pissy about the plaintiff not being arrested” and that “[o]n
information and belief, Warren Gilmore ... [is] friends with the
defendant, Barrett Pickett” and that Gilmore “called ... Scott
McKenzie and Rodney Nordstrom ... and told them that he wanted the
plaintiff arrested and incarcerated ....”
allegations

are

insufficient

to

Id. at ¶ 59.

demonstrate

These

“personal

participation” on the part of Deputy Gilmore in having Patterson
arrested and incarcerated. The plaintiff’s Complaint also fails to
meet the heightened pleading standard as to the second prong of the
qualified

immunity

analysis,

because

there

is

insufficient

information for the Court to determine whether or not any action by
Deputy Gilmore was objectively reasonable under the circumstances.
It is not clear whether a phone call was made by Gilmore, if such
call was made in connection with the plaintiff’s being jailed, the
subject of the phone call, or any other connection between City
officers and Gilmore.

The Complaint should therefore be dismissed

based on the lack of personal participation by Gilmore.
The plaintiff’s allegation that he suffered a constitutional

12

deprivation because he was arrested in violation of a City Court
Standing Order is insufficient to demonstrate liability.

To

succeed in a claim brought under 42 U.S.C. § 1983, a plaintiff must
show “that the defendant deprived him of a right secured by the
Constitution or federal law and that the deprivation occurred under
color of state law.”

Brown v. Miller, 631 F.2d 408, 410 (5th Cir.

1980)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155
(1978)).
Patterson complains that he should not have been arrested and
incarcerated, but should have been arrested and released on his own
recognizance

pursuant

to

a

municipal

court’s

standing

order.3

However, this is simply insufficient to demonstrate a violation of the
U.S. Constitution or federal law inasmuch as a standing order from a
municipal court is neither.
Therefore, even taking as true the plaintiff’s allegation that

Deputy Gilmore spoke with City officers and told them he wanted the
plaintiff arrested in violation of the Municipal Court standing
order, there is no constitutional violation, and this claim must be
dismissed.
3

A plain reading of the Standing Order reveals that the incident
in question is not in conflict with the Standing Order. According to
the plaintiff, the Standing Order states that “all persons arrested,
with or without a warrant, for any misdemeanor prosecuted before the
municipal court will be released on their personal recognizance as
soon as practicable after arrest ....” Complaint at ¶ 19 (emphasis
added). The Standing Order says nothing about an arrestee being
jailed or not but, rather, simply states that after arrest, a detainee
will be released on his personal recognizance as soon as practicable.
That is what occurred in this case. Thus, there was no violation of
the Standing Order.

13

B. Conspiracy to Maliciously Prosecute
Patterson contends that Deputy Gilmore, Barrett Pickett, Scott
McKenzie, Rodney Nordstrom, Kurt Nordstrom, an unknown female
officer, an unknown female employee, and Sonya Wells conspired
to initiate criminal proceedings against the plaintiff,
without probable cause or due process, maliciously
prosecute the plaintiff causing him injury and damage,
and having those charges resolved favorably to the
plaintiff
constitutes
an
unlawful
conspiracy
to
maliciously prosecute the plaintiffs for which the
defendants are liable to the plaintiff.
(Docket entry 13, ¶ 84).
To prevail on a Section 1983 conspiracy claim, “a plaintiff
must establish (1) the existence of a conspiracy involving state
action and (2) a deprivation of civil rights in furtherance of the
conspiracy by a party to the conspiracy.”

Pfannstiel v. City of

Marion, 918 F.2d 1178, 1187 (5th Cir. 1990), abrogated on other
grounds as recognized by Martin v. Thomas, 973 F.2d 449, 455 (5th
Cir. 1992).

Here, the plaintiff alleges that the defendants

conspired to deprive him of his “civil right” not to be maliciously
prosecuted.

Inasmuch as there is no federal civil right not to be

maliciously prosecuted,4 any such conspiracy claim under Section
1983 fails.

Cuadra v. Houston ISD, 626 F.3d 808, 812–13 (5th Cir.

2010)(Fifth Circuit has held that there is no freestanding § 1983
malicious prosecution claim); Goodarzi v. Hartzog, 2013 WL 3110056,

4

The plaintiff’s malicious prosecution claim is addressed only
to Mr. Pickett, not to the moving defendants Pike County and Deputy
Gilmore.

14

at *15 (S.D. Tex. June 14, 2013)(conspiracy is a derivative tort
because

recovery

is

not

based

on

the

conspiracy,

i.e.,

agreement, but on the injury from the underlying tort.

the

Moreover,

the malicious prosecution claim is time-barred, so the conspiracy
claim cannot be based upon it).
Similarly, if the plaintiff were arguing that he was bringing
a claim for conspiracy under 42 U.S.C. § 1985(3)(conspiracy to
deprive persons of rights or privileges), his claim would fail
since the plaintiff fails to meet the heightened pleading standard.
Patterson merely states that “[o]n information and belief ...”
Deputy Gilmore and the defendants “conspired” to arrest him.
Complaint, ¶ 60.

This is the very type of bald conclusory

allegation that the heightened pleading standard is designed to
prohibit.
In addition, in order to state a claim under 42 U.S.C. §
1985(3), a plaintiff must allege:
(1) a conspiracy involving two or more persons; (2) for
the purpose of depriving, directly or indirectly, a
person or class of persons of the equal protection of the
laws; and (3) an act in furtherance of the conspiracy;
(4) which causes injury to a person or property, or a
deprivation of any right or privilege of a citizen of the
United States. In so doing, the plaintiff must show that
the [alleged] conspiracy was motivated by a class-based
animus.
Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994). In other
words, “the plaintiff must show the conspiracy was motivated by a
class-based

animus.”

Id.

at

653.

15

Patterson

makes

no

such

allegations here, and this claim must likewise be dismissed.

C. Negligence / Gross Negligence
Finally, the plaintiff alleges that the defendants negligently
arrested, searched, and incarcerated him. (Docket entry 13, ¶ 85).
Since the plaintiff’s claims for negligence and gross negligence
fail to meet the heightened pleading standard as to Deputy Gilmore,
a qualified immunity analysis is unnecessary here.

It is well

settled that negligence, even gross negligence, does not implicate
the Constitution and does not provide a basis for a Section 1983
claim. See Farmer v. Brennan, 511 U.S. 825, 835 (1994)(“deliberate
indifference entails something more than mere negligence, ...”);
Ruffin v. Landry, 2011 WL 1752084, *2 (W.D. La. 2011)(noting
“courts have, in a number of contexts, determined that allegations
amounting to negligence cannot support a § 1983 claim.”) citing
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)(negligent
medical care); Hare v. City of Corinth, 74 F.3d 633, 641–42, 646
(5th

Cir.

1996)(negligence

insufficient

to

support

failure

to

protect claim under § 1983); Eason v. Thaler, 73 F.3d 1322, 1328–29
(5th Cir. 1996)(gross negligence by prison officials in preventing
a gas leak insufficient to support § 1983 action under the Eighth
Amendment); and Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 142
(5th Cir. 1992), vacated on other grounds, 15 F.3d 443 (5th Cir.1994)
(“Even when constitutional liberty interests are implicated, not

16

all

bodily

injuries

caused

by

state

actors

give

rise

to

a

constitutional tort, for it is well settled that mere negligence
does

not

constitute

a

deprivation

of

due

process

under

the

Constitution.”); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.
1999).

Accordingly,

the

plaintiff’s

negligence

and

gross

negligence claims under federal law must fail.

II. Federal Claims - Official Capacity
The plaintiff also alleges federal claims against Deputy
Gilmore in his “official capacity.” (Docket entry 13, ¶ 9). Suits
brought against officers in their official capacities “generally
represent only another way of pleading action against the entity of
Monell v. Dep’t of Soc. Serv., 436

which an officer is an agent.”
U.S. 658, 690 n.55 (1978).

Such allegations are to be treated as

a suit against the entity itself, in this case Pike County.
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
A local governmental entity 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. There is no respondeat superior

17

liability

under

Section

1983;

rather,

the

key

to

municipal

liability is demonstrating that the deprivation of a constitutional
right was inflicted pursuant to an official policy or custom of the
municipality

in

question.

Monell,

436

U.S.

at

694.

The

unconstitutional conduct asserted “must be directly attributable to
the

municipality

through

some

sort

of

official

action

or

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th

imprimatur.”
Cir. 2001).
To

establish

liability

against

Pike

County/Gilmore

(officially), the plaintiff 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.

See Rivera v. Houston

Indep. Sch. Dist., 349 F.3d 244, 247-249 (5th Cir. 2003).

“Proof

of an official policy or custom can be shown in several ways,
including: (1) formally adopted policies; (2) informal customs or
practices;

(3)

a

custom

or

policy

of

inadequate

training,

supervision, discipline, screening, or hiring; or (4) a single act
by an official with final policymaking authority.”

Thomas v.

Prevou, 2008 WL 111293, *3 (S.D. Miss. 2008)(citing Monell v. City
of New York Dept. of Social Servs., 436 U.S. 658, 694 (1978); Snow
v. City of El Paso, Texas, 501 F. Supp. 2d 826, 831 (W.D. Tex.
2006)).
The plaintiff’s official capacity claims fail because he has

18

failed to allege an underlying constitutional violation for which
Deputy Gilmore is responsible.

Becerra v. Asher, 105 F.3d 1042,

1048 (5th Cir. 1997)(holding that a constitutional violation is an
essential element in a § 1983 claim against a municipality).
Furthermore, the plaintiff has failed to provide any evidence of a
policy, practice or custom of Pike County that was the “moving
force” behind any constitutional violation.

III. State Claims - Individual Capacity
The plaintiff asserts state law claims for: (1) due process;
(2) false arrest; (3) conspiracy to maliciously prosecute; and (4)
negligence/gross

negligence

against

Deputy

Gilmore

in

his

individual capacity.
A. Mississippi Tort Claims Act
The plaintiff’s state law claims for violation of due process,
false

arrest

and

negligence/gross

negligence

are

exclusively

governed by the MTCA, Miss. Code Ann. § 11-46-1 et seq.

Section

11-46-7 of the MTCA provides 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).
There are no allegations that Deputy Gilmore was acting outside the
course and scope of his employment in this matter, and as a result,
he

is

entitled

to

immunity

from

the

above-referenced

claims

asserted against him in his individual capacity as they fall under

19

the MTCA.

B. Conspiracy to Maliciously Prosecute
The plaintiff’s claim for conspiracy to maliciously prosecute
falls outside the parameters of the MTCA. Miller v. Wills, 2010 WL
3036491 * 6 (S.D. Miss. 2010)(holding that MTCA immunity did not
apply to conspiracy claim). Inasmuch as the MTCA does not apply to
the conspiracy claim against Gilmore individually, he has no
immunity from the claim.

However, the plaintiff’s claim for

conspiracy as to Gilmore individually fails as a matter of law.
To demonstrate a conspiracy claim under Mississippi law, the
plaintiff must establish “a combination of persons for the purpose
of

accomplishing

unlawfully.”

an

unlawful

purpose

or

a

lawful

purpose

Gallagher Bassett Servs. Inc. v. Jeffcoat, 887 So.2d

777, 786 (Miss. 2004)(citing Levens v. Campbell, 733 So.2d 753, 761
(Miss. 1999)).

The Mississippi Supreme Court has explained that

“[w]here a civil conspiracy gives rise to damages, a right of
recovery

may

Contractors,

arise.”
117

Id.

So.3d

In

331,

Bradley

339

v.

Kelley

(Miss.Ct.App.

Brothers

2013),

the

Mississippi Court of Appeals held that to “establish a civil
conspiracy, the plaintiff must prove (1) an agreement between two
or more persons, (2) to accomplish an unlawful purpose or a lawful
purpose

unlawfully,

(3)

an

overt

act

in

furtherance

of

the

conspiracy, [and (4)] damages to the plaintiff as a proximate

20

result.” Harris v. Town of Woodville, 196 So. 3d 1121, 1131 (Miss.
Ct. App. 2016).
Here, the plaintiff has failed to allege with sufficient
specificity any agreement to accomplish an unlawful purpose.

The

criminal charges made by Barrett resulted in a warrant being
issued.

(Docket entry 23, ¶¶ 15-34).

the plaintiff based on the warrant.

The City of McComb arrested

Id.

The fact that there is a

standing order from the City of McComb’s municipal court stating
that

misdemeanor

arrestees

should

be

released

on

their

own

recognizance does not negate that the arrest warrant was for a
jailable offense and is not illegal.

See Atwater v. City of Lago

Vista, 532 U.S. 318, 354 (2001).
A plain reading of the Municipal Court’s Standing Order
reveals that what occurred here is not in conflict with that Order.
In particular, per the plaintiff’s Complaint, the Order states that
“all

persons

arrested,

with

or

without

a

warrant,

for

any

misdemeanor prosecuted before the municipal court “will be released
on their personal recognizance as soon as practicable after arrest
....”

(Docket entry 13, ¶ 19)(emphasis added).

The Order itself

says nothing about an arrestee being jailed, rather it simply
states that after arrest, a detainee will be released on his
personal recognizance as soon as practicable.

The Order says

nothing about jailing an arrestee during the detention. Thus, this
claim fails against Deputy Gilmore, individually.

21

IV. State Law - Official Capacity
As previously noted, the plaintiff’s state law claims for
violation

of

due

process,

false

arrest

and

negligence are exclusively governed by the MTCA.

negligence/gross
While the MTCA

waives sovereign immunity as a whole, it retains a number of
restrictions, limitations and immunities, several of which apply
here to bar the plaintiff’s claims.

A. Due Process / False Arrest
The plaintiff alleges that the “defendants” violated his right
to due process by “processing, fingerprinting, photographing,
searching, and incarcerating” him in violation of the City’s
Standing Order on Recognizance Bonds.

Docket entry 13, ¶ 79.

As

previously noted, it is clear from the plaintiff’s Complaint that
Gilmore had no role in processing, fingerprinting, photographing,
or searching him.

Thus, this claim fails.

The plaintiff’s claim that he was wrongfully incarcerated is
barred by the inmate exception of the MTCA.

See Miss. Code Ann. §

11-46-9(1)(m), which states that:
(1) A governmental entity and its employees acting within
the course and scope of their employment or duty shall
not be liable for any claims:
. . .
(m) of any claimant who at the time the claim arises is
an inmate of any detention center, jail, work house,
22

penal farm, penitentiary or other such institution
regardless of whether such claimant is or is not an
inmate of any detention center, jail, work house, penal
farm, penitentiary or other such institution when the
claim is filed.
Miss. Code Ann. § 11-46-9(1)(m).
The Mississippi Supreme Court has applied Section 11-469(1)(m) on a number of occasions, and in each instance has upheld
its constitutionally.

See, e.g., Wallace v. Town of Raleigh, 815

So.2d 1203 (Miss. 2002).

Notably, the fact that an inmate is a

pre-trial detainee, i.e. not yet convicted, makes no difference in
the application of the inmate exception.

For example, in Liggans

v. Coahoma Co. Sheriff’s Dept., 823 So.2d 1152 (Miss. 2002), the
Mississippi

Supreme

Court

granted

Coahoma

County’s

Motion

to

Dismiss based on the inmate exception and found that the exception
applied despite the fact that the plaintiff had not yet been
convicted.

In another case, Love v. Sunflower County Sheriff’s

Department, 860 So.2d 797 (Miss. 2003), the State Supreme Court
reiterated that there is no distinction between persons “convicted”
and those not “convicted” in the application of Section 11-469(1)(m).

Id. at 801; see also Harvison v. Greene Co. Sheriff’s

Dept., 899 So.2d 922 (Miss. Ct. App. 2005)(upholding trial judge’s
grant of Rule 12(b)(6) motion based on Miss. Code Ann. § 11-469(1)(m)).
In the case before this Court, Patterson’s claim for wrongful
incarceration arises out his incarceration in the City Jail and,

23

therefore, his claim is barred.
As for the plaintiff’s false arrest claim, it is barred by
Gilmore’s lack of participation in any arrest, and by the police
function

exemption.

See

Miss.

Code

Ann.

§

11-46-9(1)(c).

Patterson’s Complaint makes it clear that Mr. Pickett signed a
criminal affidavit which caused an arrest warrant to issue from the
City Court, not from Deputy Gilmore. Gilmore, therefore, cannot be
held liable for any arrest, good, bad or otherwise.

Furthermore,

the Police Function exemption provides Gilmore protection.

The

MTCA provides as follows:
(1)
the
not
. .

A governmental entity and its employees acting within
course and scope of their employment or duties shall
be liable for any claim:
.

(c) 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 injury.
Miss. Code Ann. § 11-46-9(1)(c)(emphasis added). Importantly, “the
plaintiff has the burden of proving reckless disregard by a
preponderance of the evidence.”

Hinds County v. Burton, 187 So.3d

1016, 1020 (Miss. 2016).
Reckless disregard “requires more than a showing of mere
negligence.”
App. 2002).

Bonner v. McCormick, 827 So. 2d 39, 41 (Miss. Ct.
Furthermore, reckless disregard is “a higher standard

than gross negligence[.]”

City of Jackson v. Shavers, 97 So.3d

24

686, 688 (Miss. 2012). The Mississippi Supreme Court has explained
that “[r]eckless disregard usually is accompanied by a conscious
indifference to consequences amounting almost to a willingness that
harm should follow.”

Maye v. Pearl River County, 758 So. 2d 391,

394 (Miss. 1999)(emphasis added).

The State Supreme Court has

further explained that “reckless disregard embraces willful or
wanton conduct which requires knowingly and intentionally doing a
thing or wrongful act.”

Turner v. Ruleville, 735 So. 2d 226, 230

(Miss. 1999)(emphasis added); see also Foster v. Noel, 715 So. 2d
174 (Miss. 1998)(holding that willfulness and wantonness include an
element of “intent to harm”).
Taking

the

plaintiff’s

allegations

as

true,

Gilmore

purportedly made a phone call to the City of McComb’s Chief of
Police

stating

incarcerated.

that

he

wanted

the

plaintiff

Docket entry 13, ¶¶ 23, 59.

arrested

and

Such a call, if it

occurred, does not amount to reckless disregard. Deputy Gilmore is
a Pike County Deputy with no authority over the Chief of Police or
the City of McComb Police Department.

The Chief was free to

disregard the call and had no duty to comply with the purported
request. Significantly, this was a valid issued arrest warrant for
the plaintiff that was served by City police officers.

At worst,

if the call occurred, it amounts to negligence, not reckless
disregard.

25

B. Negligence/Gross Negligence
Finally, the plaintiff asserts claims against Gilmore in his
official capacity for negligence/gross negligence.
fail for the same reasons as stated hereinabove.

These claims

Furthermore, the

Police Function Exemption bars these claims as it is well-settled
that

negligence

and

gross

negligence

demonstrate “reckless disregard.”

are

insufficient

to

Reckless disregard “requires

more than a showing of mere negligence.”

Bonner v. McCormick, 827

So. 2d 39, 41 (Miss.Ct.App. 2002). Furthermore, reckless disregard
is “a higher standard than gross negligence[.]” City of Jackson v.
Shavers, 97 So.3d 686, 688 (Miss. 2012).
Having

carefully

considered

the

defendants’

Motion

for

Judgment on the Pleadings, as well as the parties’ memoranda and
the applicable law, the Court finds that the Motion for Judgment on
the Pleadings (docket entry 25) shall be granted as to Pike County
Sheriff’s Deputy Warren Gilmore.
Specifically, the Court finds that the plaintiff’s claims
against Deputy Gilmore in his individual capacity under federal law
are barred by qualified immunity; that the plaintiff’s federal
claims against Deputy Gilmore in his official capacity are barred
by Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978); that the
plaintiff’s claims under state law against Deputy Gilmore in his
official capacity as a Pike County Deputy are barred by the
Mississippi Tort Claims Act (“MTCA”); and that the plaintiff’s

26

state law claims against Deputy Gilmore in his individual capacity
are also barred by the MTCA.

Furthermore, the plaintiff is not

entitled to any declaratory relief.
ACCORDINGLY,
IT

IS

Mississippi,

HEREBY
and

ORDERED

Pike

that

County

the

defendants

Sheriff’s

Deputy

Pike

County,

Warren

Gilmore

(“Gilmore”)’s Motion for Judgment on the Pleadings (docket entry
25) is GRANTED.
SO ORDERED, this the 12th day of October, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

27