Breland v. Forrest Cnty. Sheriff's Dep't

• Decision Date: 15 April 2013
• Docket Number: CIVIL ACTION NO. 2:10-CV-303-KS-MTP
• Parties: WILLIE CLYDE BRELAND PLAINTIFF v. FORREST COUNTY SHERIFF'S DEPARTMENT, FORREST COUNTY SHERIFF BILLY BOB MCGEE, in his individual and representative capacity as Sheriff of Forrest County, FORREST COUNTY SHERIFF'S DEPUTY CAPTAIN GLENN MOORE, in his individual and representative capacity as a Deputy and Captain of the Forrest County Sheriff's Department and the FORREST COUNTY BOARD OF SUPERVISORS DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

WILLIE CLYDE BRELANDPLAINTIFF

v.FORREST COUNTY SHERIFF'S DEPARTMENT,FORREST COUNTY SHERIFF BILLY BOB MCGEE, in his individualand representative capacity as Sheriff of Forrest County,FORREST COUNTY SHERIFF'S DEPUTY CAPTAIN GLENN MOORE,in his individual and representative capacity as a Deputyand Captain of the Forrest CountySheriff's Departmentand the FORREST COUNTY BOARD OF SUPERVISORSDEFENDANTS

CIVIL ACTION NO. 2:10-CV-303-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION

DATED: April 15, 2013

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Defendants' Motion for Summary Judgment[42] and Motion to Strike Plaintiff's Expert Witness[44].Having considered the parties' submissions, the record, and the applicable law, the Court finds that the Motion for Summary Judgment[42] should be granted and that the Motion to Strike[44] should be denied as moot.

I.BACKGROUND

PlaintiffWillie Clyde Breland alleges violations of certain federal rights and asserts state law claims in relation to his arrest by a member of the Forrest County Sheriff's Department at a nightclub on December 16, 2007.Plaintiff also claims that Defendants violated the Constitution by seeking to close his nightclub through the enforcement of Forrest County's Brown Bag Ordinance and other comprehensive, concerted actions.

Plaintiff is the owner and operator of the Climax Club, a nightclub located in south Forrest County, Mississippi.The Climax Club has been in existence since approximately 1978.On December 6, 2007, the Sheriff of Forrest County, Billy Bob McGee("Sheriff McGee"), contacted Sheriff's Deputy Captain Glenn Moore("Captain Moore") concerning numerous complaints pertaining to the Climax Club, including, but not limited to, complaints of gunfire, assaults, serving alcohol beyond legal hours, and unauthorized parking.Captain Moore and several other deputies subsequently investigated the situation, which resulted in David White, an employee of the Climax Club, being arrested during the early morning hours of December 7, 2007, for selling beer after midnight.

On December 16, 2007, Captain Moore returned to the Climax Club (the "Club") due to the Sheriff's Department receiving additional complaints.Captain Moore witnessed several individuals consuming alcoholic beverages after midnight and thus arrested the Plaintiff for violating Forrest County's Brown Bag Ordinance.The Plaintiff was not prosecuted as a result of this arrest because Captain Moore did not file an affidavit against the Plaintiff.Following the arrest, Sheriff McGee spoke with an Alcohol Beverage Control agent who indicated that there may not have been any violation of law.Sheriff McGee then spoke with Captain Moore and advised that unless the Plaintiff gave him any problems during the arrest, they should not pursue charges.Captain Moore indicated that the Plaintiff did not offer any resistance during the arrest.

On December 14, 2010, Plaintiff filed suit in this Court against the Forrest County Sheriff's Department("Sheriff's Department"); Sheriff McGee, individually and in his official capacity; Captain Moore, individually and in his official capacity; and the ForrestCounty Board of Supervisors(the "Board" or "Board of Supervisors").(See Compl. [1].)Subject matter jurisdiction is asserted under Title 28 U.S.C. §§ 1331(federal question), 1343 (civil rights and elective franchise), and 1367 (supplemental jurisdiction).Count one of the Complaint asserts a cause of action for deprivation of rights pursuant to 42 U.S.C. § 1983.Plaintiff alleges that his right to be free from excessive force under the Fourth Amendment, as incorporated by the Fourteenth Amendment, was violated by Captain Moore during his arrest on December 16, 2007.The Sheriff, the Sheriff's Department, and the Board purportedly developed and implemented policies and procedures that resulted in Plaintiff's injury, and failed to adequately train and supervise Captain Moore.Counts two and three of the Complaint assert state law claims of intentional infliction of emotional distress and assault and battery in relation to Plaintiff's arrest.Subsequent filings by the Plaintiff have raised additional constitutional claims, such as the allegation that Defendants' use of drivers' licence checkpoints near the Club violated Plaintiff's rights to property and liberty under the Fifth and Fourteenth Amendments.

On January 23, 2013, Defendants filed their Motion for Summary Judgment[42] and Motion to Strike Plaintiff's Expert Witness[44].The motions have been fully briefed and the Court is ready to rule.

II.DISCUSSION

A.Standard of Review

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a).Initially, the movant has "the burden of demonstrating the absence of a genuine issue of material fact."Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172(5th Cir.2012)(citingCelotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986)).If the movant meets this burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial.Id."'An issue is material if its resolution could affect the outcome of the action.'"Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138(5th Cir.2010)(quotingDaniels v. City of Arlington, Tex., 246 F.3d 500, 502(5th Cir.2001))."An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party."Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812(5th Cir.2010)(citation omitted).

The Court is not permitted to make credibility determinations or weigh the evidence.Deville v. Marcantel, 567 F.3d 156, 164(5th Cir.2009).When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party."Sierra Club, Inc., 627 F.3d at 138.However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial."Oliver v. Scott, 276 F.3d 736, 744(5th Cir.2002)(citingSec. & Exch. Comm'n v. Recile, 10 F.3d 1093, 1097(5th Cir.1993)).Summary Judgment is mandatory "'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'"Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766(5th Cir.2011)(quotingCelotex Corp., 477 U.S. at 322), cert. denied, 132 S. Ct. 2103(2012).

B.Federal Claims

Title 42 U.S.C. § 1983 does not provide a general remedy for state law torts or allow access to federal courts for all individuals suffering injuries at the hands of state actors.White v. Thomas, 660 F.2d 680, 683(5th Cir.1981).The statute"affords a remedy only to those who suffer, as a result of state action, deprivation of 'rights, privileges, or immunities secured by the Constitution and laws' of the United States."Id.(quoting42 U.S.C. § 1983).To state a cognizable § 1983 claim, "'a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'"Doe ex rel. Magee v. Covington County Sch. Dist., 675 F.3d 849, 854(5th Cir.2012)(quotingJames v. Tex. Collin Cnty., 535 F.3d 365, 373(5th Cir.2008)).A § 1983complainant must set forth specific facts showing a constitutional violation, as opposed to conclosury or speculative allegations of wrongdoing.See, e.g., Fee v. Herndon, 900 F.2d 804, 807(5th Cir.1990);Angel v. City of Fairfield, Tex., 793 F.2d 737, 739(5th Cir.1986).

Official conduct by governmental actors in connection with purported constitutional violations, i.e., the "color of law" requirement,¹ is not disputed in this case.Section 1983 claims may be brought against government employees "in their individual or official capacity, or against a governmental entity."Goodman v. Harris County, 571 F.3d 388, 395(5th Cir.2009)(citingBd. of County Comm'rs v. Brown, 520 U.S. 397,403, 117 S. Ct. 1382, 137 L. Ed. 2d 626(1997)).As to individual capacity claims, the plaintiff must show "that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation."Jones v. Lowndes County, Miss., 678 F.3d 344, 349(5th Cir.2012)(citation omitted)."[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.It is not a suit against the official personally, for the real party in interest is the entity."Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114(1985)(citation omitted).A governmental entity cannot be held liable on a respondeat superior theory of recovery under § 1983.Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611(1978).When the defendant is a local government, the alleged violation must be connected to an official custom, policy, practice, ordinance or regulation.Jones, 678 F.3d at 349.Supervisory officials may be held liable under § 1983 only if they affirmatively participate in the acts causing the constitutional violation, or implement unconstitutional policies that result in constitutional injury.Wernecke v. Garcia, 591 F.3d 386, 401(5th Cir.2009)(citingGates v. Tex. Dep't of Prot. & Reg. Servs., 537 F.3d 404, 435(5th Cir.2008)).Individual defendants, but not governmental entities, may rely on the defense of...