Barrett v. Miller, 07-CA-59559

Decision Date22 April 1992
Docket NumberNo. 07-CA-59559,07-CA-59559
Citation599 So.2d 559
PartiesMary Elizabeth BARRETT and Clifford Barrett v. Tom MILLER, C.M. Vincent, Jr., Chris Robinson, David Franklin, Joel Walters and the Continental Insurance Company, a Corporation.
CourtMississippi Supreme Court

Laurel G. Weir, Thomas L. Booker, Jr., Weir & Booker, Philadelphia, for appellants.

William E. Ready, Ready & Associates, Meridian, for appellees.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

Mary Elizabeth and Clifford Barrett sued Lauderdale County Sheriff Tom Miller, Deputies C.M. Vincent, Jr., Chris Robinson, David Franklin, Joel Walters, and their surety, The Continental Insurance Company. The Barretts alleged that the deputies, acting under the authorization of Sheriff Miller, illegally searched their home, violating their rights under the Fourth and Fourteenth Amendments of the United States Constitution, and performed the search in an unreasonable manner which damaged their home. They demanded judgment in the sum of $2,000,000.00 for actual damages and $1,000,000.00 in punitive damages.

The defendants answered separately and included a motion to dismiss and a motion for summary judgment. The Barretts responded with their own affidavits, and the trial judge granted both motions as to all defendants.

The Barretts appeal and assign as error:

That the Honorable Lower Court erred in granting summary judgment for defendants and dismissing their case.

Within this main issue the Barretts challenge the following findings of the trial court:

1. Did the trial court err in considering the case under 42 U.S.C. Sec. 1983 and state law when no such contention was made by the Barretts in their pleadings?

2. Whether the search warrant was valid, even though it did not have a copy of the affidavit attached to it and did not list the name of Mary Elizabeth Barrett.

3. Whether Sheriff Miller was liable for the actions of the deputies under respondeat superior and vicarious liability.

4. Whether the defendants were protected by official and good faith immunity.

I. THE FACTS

The Barretts alleged that Sheriff Miller and his deputies came upon their property to execute a search warrant for a green military style ammunition box, .380 caliber fully automatic machine gun and/or a machine pistol, a silencer, .380 caliber automatic ammunition and other automatic weapons. All the officers found were two (2) packs of surgical gloves. According to the complaint, during the course of the search the officers allegedly damaged, confiscated or destroyed the property of the Barretts. The complaint lists damages to the scuttle hole in the loft; insulation from the loft; bed, clothes and personal items; eyeglasses; television set; antique money; couch, sewing machine, chest of drawers; and a waterwell.

In Count One, the Barretts alleged that the search was illegal because the warrant was not accompanied by a proper sworn affidavit containing the underlying facts and circumstances for the warrant and that the search and seizure was illegal and unreasonable under the warrant as it violated their constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution. They alleged that the search caused them to suffer untold embarrassment, emotional distress, mental anxiety, and ridicule in the community.

In Count Two, the Barretts alleged that along with damaged, destroyed, or confiscated property, they have lost income and have incurred medical expense as a result of the search.

Sheriff Miller alleged that he was protected by immunity as an official under state law; that the Barretts failed to state a claim supported by existing jurisprudence as affidavits were not required to be attached to the copy of the search warrant to be served; the complaint failed to state facts that constituted violations under the Constitution and laws of the United States; there were no allegations of any violations of procedure or any system wide custom of misconduct. Sheriff Miller claimed the complaint failed to state facts that connect him to the search and that under 42 U.S.C. Sec. 1983 there is no vicarious liability or respondeat superior liability. The Sheriff further contended that the complaint contained conclusions and inferences in place of required factual pleadings. In his motion for summary judgment the Sheriff stated that he did not participate in the search of the house and that there were no allegations of any wrong doing on his part.

Sheriff Miller further stated that he did not personally participate in obtaining the search warrant and that he was not negligent in hiring the deputies and he had no notice or knowledge that any of his deputies had a history or propensity of violating any citizen's rights or of being abusive or violent to persons or property.

Two of the deputies not mentioned in the suit were Chuck Fowler and Everett Moseley. They filed identically worded affidavits claiming that the search warrant was obtained by David Franklin and Joel Walters. Franklin, Walters and Sheriff Miller did not participate in the search of the Barretts' home. Deputy C.M. Vincent served the search warrant on the Barretts and the warrant did not have an affidavit of underlying facts and circumstances attached. Fowler and Moseley, along with Chris Robinson and C.M. Vincent, searched the house. They did not find the items they were looking for, but did confiscate two packs of surgical gloves. These deputies stated that the search was done in good faith and according to the practices of their education and training. They did not cause or witness any uncivil behavior toward the Barretts during the search; nor was the search conducted in such manner as to attract attention to the Barretts or their property.

The deputies asserted that they too were clothed with immunity; the Barretts claim that the search warrant was invalid and was not supported by existing jurisprudence; the complaint failed to state facts which rise to the level of violations of the Constitution or the laws of the United States; no damages are allowed for abstract constitutional violations; the pleadings contained conclusions and inferences instead of factual pleadings; they did not in any way damage the property or violate the rights of the Barretts; and there were no sufficient allegations of any illegal or wrongful conduct by them. Deputies David Franklin and Joel Walters stated that there was a lack of connection between them and the alleged injuries to the Barretts.

The affidavits of Deputies Vincent and Robinson stated the same information that Moseley and Fowler stated. Deputies Franklin and Walters stated that they did obtain the warrant by completing an affidavit and appearing and testifying before an independent judge who signed and issued the warrant. Franklin and Walters did not participate in the search.

Continental Insurance also filed motions to dismiss and for summary judgment. Their motion to dismiss repeated the allegations of Sheriff Miller and his deputies. The motion for summary judgment stated that if they were not liable then the company was not liable.

The Barretts denied the allegations asserted in the motions and filed counter-affidavits. One such affidavit was from Shirley and Robert L. Price who stated that they came to the Barrett home immediately after the search and observed the scuttle hole in the loft not completely closed and insulation from the loft which had flown over most portions of the inside part of the house. Clothes and personal items were dumped on the bed. Suitcases had been opened and the contents scattered. The bed was torn up and left in disarray. Part of the television set had been separated from other parts. The couch was disarranged. The drawers of a chest were open with the contents scattered on the floor. The drawers of the sewing machine were left pulled out with the contents on the floor. Mrs. Barrett was looking for her eyeglasses, which were later found broken. The Barretts had complained to the Prices of how the officers had treated them during the search.

The affidavit of Mary Newsome was offered in opposition to the motion for summary judgment. Newsome stated that she was at the Barretts' home when the search was conducted. Her affidavit was much the same as that of the Prices. Newsome adds that the waterwell was damaged, and that one of the deputies shoved her grandmother, and her mother and father suffered the damage and emotional injury mentioned in the complaint.

The trial judge made a determination that this case had to be treated as a civil rights case under 42 U.S.C. Sec. 1983 and state law. The trial judge then granted the motions to dismiss and for summary judgment as to Sheriff Miller because there is no vicarious liability or respondeat superior liability applicable in civil rights cases. The trial judge also found that Sheriff Miller was entitled to claim official immunity and good faith immunity.

The trial judge then granted the motion of Continental Insurance Company to dismiss on the basis that the complaint did not state a claim of action upon which relief could be granted. The motions to dismiss and for summary judgment were granted to David Franklin and Joel Walters as it was clear from the pleadings that these two men did not go to or participate in the search. The trial judge found that the search warrant was legal and valid. The trial judge further found that Franklin and Walters were also entitled to official immunity and good faith immunity. Finally, the trial judge granted the motions of C.M. Vincent, Jr. and Chris Robinson, the two deputies who conducted the search, on the grounds that the Barretts failed to allege facts that established that the search by the deputies lacked good faith or violated clearly established law. The trial judge also found that these two deputies were entitled to official immunity and good faith immunity.

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