Opinion
Civil Action No. 4:97cv87-D-B
June 25, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the defendants for the entry of partial summary judgment on their behalf. The plaintiffs have failed to respond to the motion. Finding that the motion is partially well taken, the undersigned shall grant the motion in part and deny it in part.
Factual Background
The crux of this matter arises out of the arrest of the plaintiffs by Greenwood police officers on or about May 18, 1996. In light of the nature of the defendants' motion, and the absence of admissible proof before the court regarding the incidents which occurred in the early morning of May 18, the undersigned chooses not to delve into an exhaustive recitation of the facts as alleged by the plaintiffs. It is sufficient to note at this juncture that the plaintiffs charge that they were beaten and arrested by Greenwood police officers without sufficient justification. Consequently, they assert numerous claims against the individual defendants including allegations of false arrest, excessive force, and malicious prosecution. Additionally, the plaintiffs assert claims against the City of Greenwood in light of the alleged conduct by the individual officers. The court will set out further facts as required during its discussion of the defendants' motion.
Discussion
Summary Judgment Standard
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden rests upon the party seeking summary judgment to show to the district court that an absence of evidence exists in the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n. Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material. Anderson, 477 U.S. at 248; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248; see City of Nederland, 101 F.3d at 1099; Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995). Further, "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue of fact for trial." Anderson, 477 U.S. at 248; see City of Nederland, 101 F.3d at 1099. Finally, all facts are considered in favor of the non-moving party, including all reasonable inferences therefrom. See Anderson, 477 U.S. at 254;Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts."Little, 37 F.3d at 1075 (emphasis omitted): see Lujan v. Nat'l Wildlife Fed'n. 497 U.S. 871, 888, 111 L.Ed. 695, 110 S.Ct. 3177 (1990).
The court also notes that in the case at bar, the plaintiff has failed to respond to the motion of the defendants for partial summary judgment. This court acknowledges that it may not grant summary judgment by default, i.e., merely because there is no opposition to the motion. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir. 1995) ("[I]f the district judge's decision was to grant summary judgment solely because of a default, such decision constituted reversible error."); Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995); Hibernia Nat'l Bank v. Admin. Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). However, the court may accept as undisputed the movant's version of the facts and grant the motion where the movant has made aprimafacie showing of its entitlement to summary judgment. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Rayha v. United Parcel Service. Inc., 940 F. Supp. 1066, 1068 (S.D. Tex. 1996);Romberger v. United Transp. Union., 930 1131, 1132 (N.D. Miss. 1996). In any event, the defendants still must meet their burden to establish that no genuine issue of material fact exists as to the plaintiffs' claims and that the defendants are entitled to the entry of a judgment as a matter of law.
Claims against the City of Greenwood — Municipal Liability under § 1983
The defendants first seek dismissal of all claims of municipal liability against the City of Greenwood, and direct this court to several authorities which discuss the standards of liability for municipalities under § 1983. See, e.g., Board of County Commissioners of Bryan County, Oklahoma v. Brown. — U.S. —, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Canton v. Harris, 489 U.S. 378, 388-389, 109 S.Ct. 1197, 1204-1205, 103 L.Ed.2d 412 (1989); Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996). Without reference to record evidence, the defendants then conclude that they are entitled to the entry of summary judgment on these claims.
Because plaintiffs will be wholly unable to come forward with competent proof to establish a causal connection between a custom or policy of the City of Greenwood and the incident outside J J's, all claims against the municipal defendants must be dismissed.
Defendants' Brief, p. 7 (emphasis added). Under the present posture of the case at bar, there is no evidence before this court that would warrant the award of summary judgment for the municipal defendants. Allegations in the plaintiffs' complaint are sufficient, if ultimately proven, to establish municipal liability — either under a "failure to train" theory or under a theory that the City of Greenwood employed an official policy to ignore complaints of police misconduct. Without proof to demonstrate that there are no genuine issues of fact on the question of municipal liability this court cannot award the defendants relief on these claims. The defendants have failed to meet their burden to prove the absence of genuine issues of material fact with regard to these claims, and the motion shall be denied as to these claims.
Claims against Chief Ronnie L. White
The defendants charge that Chief White is entitled to the protection of qualified immunity as against all of the plaintiffs' claims against him. Whenever qualified immunity is asserted as an affirmative defense, resolution of the issue should occur at the earliest possible stage.Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985). Issues of qualified immunity are determined from the face of the pleadings and without extended resort to pre-trial discovery.Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). Public officials, including law enforcement officers such as the defendant East, are entitled to assert the defense of qualified immunity in a § 1983 suit for discretionary acts occurring in the course of their official duties. Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396, 403 (1982); Gagne v. City of Galveston., 805 F.2d 558, 559 (5th Cir. 1986); Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).
Public officials are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); White v. Walker, 950 F.2d 972, 975 (5th Cir. 1991); Morales v. Haynes, 890 F.2d 708, 710 (5th Cir. 1989). Stated differently, 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, 106 So. Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The first step in the inquiry of a claim of qualified immunity is whether the plaintiffs have alleged the violation of clearly established rights. Siegert v. Gilley, 500 U.S. 266, 111 S.Ct. 1789, 114 L.Ed.2d 277, 287 (1991). This inquiry necessarily questions whether or not the officer acted reasonably under settled law in the circumstances with which he was confronted. Hunter v. Bryant. 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589, 596 (1991); Lampkin v. City of Nacogdoches, 7 F.3d 430 (5th Cir. 1993). "If reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel v. Marion. 918 F.2d 1178, 1183 (5th Cir. 1990)). Even if the defendant violated the plaintiff's constitutional rights, he is entitled to immunity if his actions were objectively reasonable. Blackwell, 34 F.2d at 303.
When determining whether a right was clearly established, this court need not find such a decided controlling case which predates the alleged conduct. Rather, it is sufficient that the unlawfulness of the alleged action is "apparent" in light of pre-existing law. Blankenship v. Johnson, 106 F.3d 1202, 1206 (5th Cir. 1997); Hassan v. Lubbock Indep. Sch. Dist. 55 F.3d 1075, 1079 (5th Cir. 1995); Hale v. Towney, 45 F.3d 914, 919 (5th Cir. 1995). Indeed, the fact that there is no case directly on point may be indicative of the degree to which that point of law is ingrained into constitutional jurisprudence.United States v. Lanier, — U.S. —, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) ("[t]he easiest cases don't even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.") (quoting United States v. Lanier, 73 F.3d 1380, 1410 (7th Cir. 1996) (Daughtrey, C.J., dissenting)); see also MARTIN A. SCHWARTZ AND JOHN E. KIRKLIN, Section 1983 Litigation: Claims and Defenses, Vol. 1B, p. 338 (1996) ("Sometimes the absence of precedent on point reflects only that what the defendant did was blatantly unconstitutional and that there has been widespread compliance with the governing constitutional norm.").
"Put another way, officials must observe `general, well-developed legal principles.'" Hale, 45 F.3d at 919 (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 455 (5th Cir. 1994)). Further, this court must look to the "well established" law of this circuit, and reliance upon the law of other circuits does not give a public official solace. Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir. 1993) ("Our inquiry [into what is clearly established law] ends, if we find from examining the decisions of the Supreme Court and our own decisions that the law was clearly established in this circuit.").
The Fifth Circuit has, however, noted the apparent illogical nature of such a seemingly myopic perspective:
While it seems peculiar to consider an official action held lawful by one federal circuit court to be "clearly" unconstitutional by any "objective" criteria, such a result reinforces the finality of circuit law, albeit at the expense of immunity in some cases.Brady v. Fort Bend County, 58 F.3d 173, 175 n. 11 (5th Cir. 1995).
Whenever plaintiffs sue public officials under 42 U.S.C. § 1983, this court must also insist on heightened pleading on the part of the plaintiff. Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996); Schultea v. Wood, 47 F.3d 1427, (5th Cir. 1995) (en banc), First, this court demands that a plaintiff provide a "short and plain statement of his complaint, a complaint that rests upon more than conclusions alone." Morin, 77 F.3d at 121;Schultea, 47 F.3d at 1433. Secondly, the court may exercise its discretion to require the plaintiff to file a reply to the defendant's answer on the issue of qualified immunity. Morin, 77 F.3d at 121; Schultea, 47 F.3d at 1434.
However, the Fifth Circuit has indicated that the matter of requiring such heightened pleading is purely a matter of the district court's discretion:
[T]here no longer exists a per se "heightened" pleading requirement in qualified immunity cases. . . . Rather, in such cases any requirement that a plaintiff clarify the allegations set forth in his or her complaint arises solely out of the district court's discretionary authority to order a reply to a defendant's proffer of a qualified immunity defense.Brown v. Valmet-Appleton, 77 F.3d 860, 863 n. 11 (5th Cir. 1996) (internal citation omitted). Nevertheless, Fifth Circuit decisions have continued to impose Shultea's heightened pleading requirement.
Specifically with regard to Chief White, the plaintiffs' complaint merely states: Jeremiah and Jeremy reported the officers' misconduct and the incident to the Greenwood City Counsel, and Jeremy Brown, along with his father, Leflore County Deputy Sheriff Jeremiah Brown, Sr., met privately with Greenwood Police Chief Ronnie White to report the same misconduct. No action was ever taken by the city of Greenwood to reprimand the offending officers, nor to redress the grievances of Jeremiah and Jeremy Brown.
Plaintiffs' Complaint, ¶ 25.
As plaintiffs prepared for civil trial for damages they learned of a historic pattern of willful and unconstitutional violations of the rights of Greenwood citizens during the tenure of Chief Ronnie L. White as Police Chief of Greenwood, Mississippi. Plaintiff can produce documentation and witness testimony of other knowingly unlawful and unconstitutional arrests and abuses by the Greenwood Police Department.
Plaintiffs' Complaint, ¶ 29. The plaintiffs fail, however, to allege sufficient factual details in support of their claim against Chief White for failing to adequately train the officers under his command. In order to establish Chief White's liability in this regard, the plaintiffs must ultimately prove that
the failure to train or supervise in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the officers come in contact. Only where a failure to train reflects a deliberate or conscious choice . . . can the failure be properly thought of as an actionable county policy.Flores v. Cameron County, Tex., 92 F.2d 258, 270 (5th Cir. 1996); see also City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989) (holding failure to adequately train may only be found where failure to train is deliberately indifferent — i.e., "where the failure to train reflects a deliberate and conscious choice"); Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996).
Under the facts charged in the complaint, there are nothing more than "conclusory assertions" which would support a finding of liability on the part of Chief White. Indeed, as the plaintiffs have not responded to the motion for partial summary judgment, they have not even pointed to any record evidence that would support a finding on the merits against Chief White. The plaintiffs have failed to meet the heightened pleading requirement of Shultea with regard to their claims against Chief White. The motion for partial summary judgment shall be granted as to the plaintiffs' claims against Chief White, and he shall be dismissed from this action.
Claims against Officer Louis Beverly
The defendants also assert that the plaintiff is incapable of establishing a claim against Officer Louis Beverly.
When questioned in their depositions about what claim they might have against Officer Louis Beverly, both plaintiffs made clear that Officer Beverly had done nothing whatsoever to injure them. . . . For that reason, Officer Beverly must be dismissed. An officer cannot be held liable merely because he was on the scene when other officers are alleged to have committed some wrongdoing.
Defendants' Brief, p. 11-12. The defendants request that summary judgment be entered on Beverly's behalf, apparently on qualified immunity grounds and upon the merits of any claim of the plaintiff.
Contrary to the defendants' brief, a police officer can indeed be held responsible for "doing nothing." A police officer who is present at the scene and does not take reasonable measures to protect a person from another officer's use of excessive force may be liable under § 1983.Hale v. Townley, 45 F.3d 914, 198 (5th Cir. 1995); Harris v. Chanclor, 537 F.2d 203, 205-06 (5th Cir. 1976); Smith v. Dooley, 591 F. Supp. 1157, 1168 (W.D. La. 1984), aff'd, 778 F.2d 788 (5th Cir. 1985).
Reserve officer Louis Beverly took Jeremiah to the other side of the street and draped him over the trunk of a car. Officer Beverly requested that Jeremiah calm down and quit talking. Officer Banks then fired his shotgun into the air. With Officer Beverly still holding Jeremiah who was not resisting, Officer Banks then forcefully shoved the barrel of the loaded shotgun into Jeremiah's face and cut Jeremiah above the eye. . . .
Plaintiffs' Complaint, ¶ 20. The plaintiffs have offered sufficient allegations in their complaint that, if proven, could establish that Officer Beverly failed to protect the plaintiff Jeremiah Brown from the use of excessive force by another officer. Likewise, the plaintiffs have made sufficient allegations to establish that Beverly participated in the arrest of the plaintiff, under asserted circumstances where no reasonable officer would believe that probable cause existed for arrest. As such, Beverly is not entitled to the protection of qualified immunity against these claims. At the very least, genuine issues of material fact exist regarding whether Beverly is entitled to the protection of qualified immunity.
In their motion, the defendants apparently confuse the factual determinations relevant to the determination of qualified immunity.
Because plaintiffs admitted [in depositions] that they were not injured by any action of Beverly, Beverly is therefore entitled to be dismissed on qualified immunity grounds.
Defendants' Brief, p. 12. When making a determination of qualified immunity, this court must accept the plaintiff's factual allegations regarding the actions taken by Beverly as contained in the complaint. Disputed issues of material fact relevant to the qualified immunity analysis which would preclude the grant of summary judgment on the issue are those centering around the "objective reasonableness" of the defendants' alleged actions — the final inquiry of the qualified immunity analysis. See, e.g., Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994); Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) ("Rule 56 still has vitality in qualified immunity cases if [there are] underlying historical facts in dispute that are material to resolutions of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.") (emphasis added); Auster Oil Gas. Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988) ("Had appellants timely asserted the question of qualified immunity, subsidiary questions of fact might have arisen, such as what information they possessed that might have led a reasonable person to believe that [their action] was lawful."). This court takes as true, for purposes of the qualified immunity analysis, the plaintiff's allegations as to what actions the defendants actually took or failed to take. Thus, the issue is an "objective (albeit fact-specific) question whether a reasonable officer could have believed" that he was violating the plaintiff's constitutionally protected rights "under the circumstances of the complained of action." Mangieri, 29 F.3d at 1017 (emphasis added) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)): see Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995) ("Factual allegations are examined to determine whether they would be sufficient, if proven, to establish a violation of clearly established law."). In its most basic terms, this court must 1) assume that the official committed the acts of which the plaintiff complains, 2) determine what relevant facts and circumstances surrounded the action, including what facts the official was aware of or should have been aware of when taking the alleged action, and 3) objectively determine as a matter of law whether a reasonable official in the defendants' position would have believed that he was violating clearly established constitutional rights by taking such action. Only the second of these inquiries has the potential to raise genuine issues of material fact, and only the presence of such issues would allow the submission of the immunity question to the finder of fact. Brown v. Bryan County, 67 F.3d 1174, 1181 n. 14 (5th Cir. 1995); Mangieri, 29 F.3d at 1017-18; Lampkin, 7 F.3d at 434-36. The evidence proffered by the defendant in this case, while potentially relevant to a determination of the merits of the plaintiffs' claims against Beverly, does not affect this court's analysis of Beverly's entitlement to qualified immunity.
Insofar as the merits of the claims against Beverly are concerned, the only evidence presented by the defendants in this regard are statements made by the plaintiffs during their deposition.
Q: You have no complaint against Louis Beverly?
A: No.
Exhibit "C" to Defendants' Motion, Deposition Excerpt of Louis Brown, p. 97.
Q: Okay. Officer Louis Beverly, did he do anything to injure you during this incident?
A: No, ma'am, not to my knowledge.
Exhibit "D" to Defendants' Motion, Deposition Excerpt of Jeremy Brown, p. 68. Based upon a review of the defendants' submissions, it appears that these statements refer only to questions regarding whether Beverly actually physically struck the plaintiffs, and not whether Beverly may be liable to the plaintiffs on other claims. In any event, this court cannot tell as the defendants did not provide the court with a copy of the plaintiffs entire depositions so that these statements could be put in context. As this court still maintains discretion over a summary judgment determination of the merits of the plaintiffs' claims against Beverly, the undersigned shall permit these claims to proceed to trial for full development before the trier of fact. Officer Beverly is not entitled to the entry of a judgment as a matter of law, and the defendants' motion shall be denied with regard to the plaintiffs' claims against him.
Equal Protection claims
With regard to the plaintiff Jeremiah Brown's claim of violation of his rights under the Equal Protection clause, the defendants charge that the claim must fail as Jeremiah Brown has failed to delineate membership within a protected class or classification.
Even if it were true that some police officers used profanity, and the other officers present did not arrest them for it, but did arrest Jeremiah Brown, this will not support an equal protection claim. The basis of such a constitutional claim must be that the plaintiff was treated less favorably by the government because of his membership in a particular protected group or class.
Defendant's Brief, p. 9. Such "selective prosecution" claims fall squarely within the bounds of the Equal Protection clause. Whren v. United States, 517 U.S. —, —, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) ("[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment."). Further, while membership in a protected class of persons does indeed shield citizens behind the ambit of the Equal Protection Clause, it is not the only means of obtaining this protection. Indeed, a person may show a violation of his Equal Protection rights by demonstrating that he
was singled out for prosecution while others similarly situated were not, and that the action against him was motivated by an arbitrary or unjustifiable consideration, such as race, religion, or the desire to prevent the exercise of a constitutionally-protected right, such as freedom of speech.Amato v. S.E.C., 18 F.3d 1281, 1284 (5th Cir. 1994) (emphasis added): see also Home Depot, Inc. v. Guste, 773 F.2d 616, 626 (5th Cir. 1985) (quotingUnited States v. Greene, 697 F.2d 1229, 1234 (5th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983)). In the case at bar, Jeremiah Brown has specifically contended that he was target of selective enforcement of law by Greenwood police officers for the invocation of his First Amendment rights of free speech.
Citizens have long been empowered to criticize the police and police action. See, e.g., Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."); Norwell v. Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) (per curiam) (reversing conviction for disorderly conduct where defendant was "loud and boisterous," stating a person "is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer").
"[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . . To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. "Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212, 216-17 (1972) (citations omitted).
[C]onduct involving only verbal challenge of an officer's authority or criticism of his actions . . . operates, of course, to impair the working efficiency of government agents. . . . Yet the countervailing danger that would lie in the stifling of all individual power to resist — the danger of an omnipotent, unquestionable officialdom — demands some sacrifice of efficiency . . . to the forces of private opposition. . . .[T]he strongest case for allowing challenge is simply the imponderable risk of abuse — to what extent realized it would never be possible to ascertain — that lies in the state in which no challenge is allowed.Obstructing A Public Officer, 108 U.PA.L.REV. 388, 390-392, 406-407 (1960). It is likewise clear that public officials are not permitted to retaliate against citizens who choose to exercise their constitutional rights. The elements of such a claim of retaliation are:
) the plaintiff's invocation of "a specific constitutional right;"
) the defendant's intent to retaliate against the plaintiff for his or her exercise of
that right,
) a retaliatory adverse act; and
) causation, i.e., "but for the retaliatory motive the complained of incident . . . would not have occurred."Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997):Woods v. Smith, 60 F.3d 1161. 1166 (5th Cir. 1995) (citations omitted), cert. denied, — U.S. —, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). An action taken by a state official motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act might have been legitimate if taken for a different reason. Woods, 60 F.3d at 1165 (emphasis added). Jeremiah Brown has stated actionable claims under the Equal Protection clause. In their motion for summary judgment, the defendants have failed to demonstrate an absence of genuine issues of material fact with regard to this claim. They are not entitled to the entry of a judgment as a matter of law. As to this claim of the plaintiff Jeremiah Brown, the motion shall be denied.
Due Process Claim
The defendants also charge that the plaintiffs are incapable of maintaining a due process claim as stated in the complaint. More specifically, the plaintiffs charge that the defendants were under a "duty to search for exculpatory evidence in this cause and failed to do so." Plaintiffs' Complaint ¶ 41. Important to the defendants' contentions with regard to this due process claim is their assertion that no duty exists under due process principles. Further, the defendants contend that even if such a duty exists, it was not "clearly established" so as to prevent the application of qualified immunity to the individual defendants.
Police officers are under a duty to conduct reasonable investigations in the execution of their duties. Moore v. The Marketplace Restaurant. Inc., 754 F.2d 1336, 1346 (7th Cir. 1985) ("If we wish to have our citizen population continue to respect the authority of police . . . it is incumbent upon law enforcement officials to make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention."); Smith v. Heath, 691 F.2d 220, 228 (6th Cir. 1982) ("[The officer's] duty was to properly investigate . . . "); Spiegel v. City of Chicago, 920 F.2d 891 (N.D. Ill. 1996). Indeed, the existence of this duty illustrates an instance where the absence of Fifth Circuit authority on point is merely "indicative of the degree to which that point of law is ingrained into constitutional jurisprudence." United States v. Lanier, 117 S.Ct. at 1227, 137 L.Ed.2d at 432. Nevertheless, the duty is merely one of reasonableness.Jones v. Watson, 106 F.3d 774, 1781 (7th Cir. 1997) ("This Court has consistently held that `once police officers have discovered sufficient facts to establish probable cause, they have no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'") (quoting Forman v. Richmond Police Dept, 104 F.3d 950, 962-63 (7th Cir. 1997)).
Further, police officers are required to disclose certain categories of exculpatory evidence regarding criminal defendants. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);Fulford v. Maggio, 692 F.2d 354, 357 n. 2 (5th Cir. 1982) ("The State's duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies."). Failure to comply with Brady disclosure responsibilities is actionable under § 1983. See, e.g., McMillian v. Johnson, 88 F.3d 1554, 1556 n. 12 (11th Cir. 1996); Burge v. Parish of St. Tammany, 996 F.2d 786, 787 (5th Cir. 1993); Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).
In any event, to the extent that the plaintiffs seek to state a due process claim for the defendants' actions or failures to act prior to the arrest, the claims must fail as a matter of law.Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (holding that pretrial deprivations of liberty, such as malicious prosecution, are not actionable under Fourteenth Amendment due process principles). Any such claims will be actionable under the purview of the Fourth Amendment. Eugene v. Alief ISD, 65 F.3d 1299, 1303 (5th Cir. 1995) (ruling Albright did not require deviation from prior circuit authority finding claims actionable under Fourth Amendment); Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992). The plaintiffs have already stated Fourth Amendment claims, and those claims are not the subject of the defendants' motion before the court today.
To the extent that the plaintiffs seek to delineate due process claims arising after their arrest, however, the undersigned is of the opinion that the plaintiffs have again failed to meet Schulea's heightened pleading requirement to sufficiently state a claim. The only assertion of facts contained in the complaint which could arguably state a claim that defendants Johnson, Browning and Banks "offered perjurious testimony against [the plaintiffs] at the criminal trial." Plaintiffs' Complaint ¶ 26. This lone assertion does not state an actionable claim under § 1983. Burns v. Reed, 500 U.S. 478, 489, 111 S.Ct. 1934, 1941, 114 L.Ed.2d 547 (1991); Briscoe v. LaHue, 460 U.S. 325, 330-331, n. 9, 103 S.Ct. 1108, 1113, n. 9, 75 L.Ed.2d 96 (1983); Moore v. McDonald, 30 F.3d 616, 619 (5th Cir. 1994) ("In Briscoe, the United States Supreme Court held that a police officer has absolute immunity from § 1983 perjury claims when testifying at a criminal trial."). No other facts stated in the complaint are sufficient to properly articulate claims against these defendants for actionable violations of their duty to investigate crime. Regardless of the appropriate extent of their investigative duties in this regard, the plaintiffs have merely failed to state what post-arrest acts these individual defendants committed or failed to perform which might constitute a violation of their duty "to search for exculpatory evidence" or otherwise conduct a reasonable investigation. As to the plaintiffs' due process claims against the individual defendants, the defendants' motion shall be granted and these claims shall be dismissed.
G. Defamation
As to the plaintiffs' state law claims for defamation, the defendants charge that the plaintiffs are incapable of establishing that any false statement was made by any of the defendants. Exhibit "C" to Defendants' Motion, Deposition of Jeremy Brown, pp. 88-89; Exhibit "D" to Defendants' Motion, Deposition of Jeremiah Brown, pp. 103-04. This court agrees. It is axiomatic that the existence of false statements made by these defendants is essential to a claim of defamation under Mississippi law.See, e.g., Eason v. Federal Broadcasting Co., 696 So.2d 435, 437 (Miss. 1997) ("Truth is an absolute defense to a defamation lawsuit in Mississippi . . ."); Moon v. Condere Corp., 690 So.2d 1191, 1195 (Miss. 1997) ("a false and defamatory statement concerning the plaintiff first element of defamation claim); Blake v. Gannett Co., Inc., 529 So.2d 595, 602 (Miss. 1988) (same). The defendants have met their burden to establish their entitlement to summary judgment on this claim and the plaintiffs have failed to come forward with any proof that demonstrates the existence of a genuine issue of material fact on the matter. The defendants are entitled to the entry of a judgment as a matter of law on this claim.
Other State Law Claims
Finally, the defendants seek dismissal of all of the plaintiffs' state law claims for failure to comply with the procedural requirements of the Mississippi Tort Claims Act, which governs state law claims against state governmental entities and employees. Miss. Code Ann. § 11-41-11. One of the preliminary requirements of the Mississippi Tort Claims Act is that the plaintiff submit a "Notice of Claim" to the chief executtive officer of the appropriate governmental entity. Miss. Code Ann. § 11-41-11(1). The Mississippi Tort Claims Act requires in relevant part:
2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.
Miss. Code Ann. § 11-41-11(2) (emphasis added).
In the case at bar, however, while the plaintiff did timely submit his "notice of claim" pursuant to Miss. Code Ann. § 11-41-11(1), the defendant contends that he did not deliver the notice "in person or by registered or certified United States mail" as required by the express terms of the statute. The Mississippi Supreme Court has noted that as the terms of this statute operate to effect a waiver of sovereign immunity, its terms are to be strictly complied with. Vortice v. Fordice, 1998 WL 240129, *1 (Miss. May 14, 1998) ("By enactment of the Mississippi Tort Claims Act, the legislature elected to waive sovereign immunity. However, this waiver was qualified by specifying certain procedural requirements which must be met before an action was filed."); Carpenter v. Dawson, 701 So.2d 806, 807 (Miss. 1997) ("This Court must enforce the statute as written . . .");Lumpkin v. City of Jackson, 697 So.2d 1179 (Miss. 1997) ("The Legislature elected to waive sovereign immunity to a large extent in the Tort Claims Act statutes, but it saw fit to qualify this waiver with a number of procedural requirements which, it is logical to conclude, must be complied with for this waiver to take effect."). In light of the recent decisions from the Mississippi Supreme Court regarding the Mississippi Tort Claims Act, the undersigned is of the opinion that all of the procedural requirements of the act must be strictly enforced. Therefore, service of the notice "in person or by registered or certified United States mail" is an essential requirement of notice, and service by regular United States mail is insufficient.
In the instant case, however, there is an absence of proof before the court regarding the method of service of the plaintiff's notice. While counsel represents to this court that the plaintiff did not effectuate service in one of the required methods, counsel's representations to this court are not admissible evidence. Skyline Corp. v. N. L. R. B., 616 F.2d 1328, 1337 (5th Cir. 1980) ("Statements by counsel in briefs are not evidence."); Pollard v. City of Dallas, 1997 WL 340942, *3 (N.D. Tex. Jun. 13, 1997) ("Unsworn statements made in the parties' briefs are not summary judgment evidence."). Contrary to the defendants' assertions, the method of service cannot be gleaned from the plaintiffs' notice letters, nor are there any affidavits from appropriate persons detailing how the letters were in fact received by Mayor Smith. Exhibits "E" and "F" to Defendants' Motion, Letters from Plaintiffs' Counsel to Mayor Harry Smith. While plaintiff's service may very well be deficient, the undersigned cannot say based upon the evidence presently before the court that the defendants have dispelled all genuine issues of material fact on this matter. With regard to the plaintiff's state law claims arising under the purview of the Mississippi Tort Claims Act, the defendants' motion shall be denied.
Conclusion
Upon review of the defendants' motion for partial summary judgment and of the record in this cause, the undersigned is of the opinion that the motion should be granted in part and denied in part. The motion shall be granted insofar as it seeks dismissal of all claims against Ronnie L. White in his individual capacity, the claims for violations of Due Process rights and the claims under state law for defamation. With regard to all of the plaintiffs' remaining claims, however, the motion shall be denied.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the motion of the defendants for the entry of partial summary judgment on their behalf is hereby GRANTED IN PART and DENIED IN PART; the motion is granted insofar as it seeks dismissal of all of the plaintiffs' claims against Ronnie L. White in his individual capacity, all of the plaintiffs' claims for violations of due process rights, and the plaintiffs' state law claims for defamation. As to the remainder of the plaintiff's claims, the motion is denied; and
) all the plaintiffs' claims against Ronnie L. White in his individual capacity, all of the plaintiffs' claims for violations of due process rights, and the plaintiffs' state law claims for defamation are hereby DISMISSED from this action.
SO ORDERED.