C-1 BY P-1 v. City of Horn Lake, Miss., Civ. A. No. DC 88-116-D-O.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
• Writing for the Court: DAVIDSON
• Citation: 775 F. Supp. 940
• Docket Number: Civ. A. No. DC 88-116-D-O.
• Decision Date: 25 July 1990
• Parties: C-1, a Minor, by his Parent and Next Friend, P-1, et al., Plaintiffs, v. CITY OF HORN LAKE, MISSISSIPPI, et al., Defendants.

775 F. Supp. 940

C-1, a Minor, by his Parent and Next Friend, P-1, et al., Plaintiffs,
v.
CITY OF HORN LAKE, MISSISSIPPI, et al., Defendants.

Civ. A. No. DC 88-116-D-O.

United States District Court, N.D. Mississippi, Delta Division.

June 15, 1990.

Dismissed With Prejudice July 25, 1990.

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COPYRIGHT MATERIAL OMITTED

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Ronald W. Lewis, Oxford, Miss., for plaintiffs

Gary Friedman, Susan D. Fahey, Jackson, Miss., William F. Myers, Mary Austin Monteith, Hernando, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

The matter is before the court on cross-motions for summary judgment. Plaintiffs filed suit under 42 U.S.C. § 1983 alleging violations of the fourth, ninth, and fourteenth amendments to the United States Constitution as well as state law claims for assault and battery, false imprisonment and false arrest, malicious prosecution, and violations of the Mississippi Constitution. Defendants are the City of Horn Lake, Mississippi, Chief of Police Michael Philley ("Chief Philley"), individually, and Mayor Sam Dye ("Mayor Dye"), individually.

FACTS

On May 18, 1987, two students at the Horn Lake Middle School participated in a fight in a privately owned field near the school. The Horn Lake Police Department received a telephone call reporting the fight. Chief Philley and officers Danny Sowell and Jimmy Robertson immediately drove to the field. Chief Philley and Officer Sowell were in one patrol car and Officer Robertson was in another patrol car. When the policemen arrived at the school, a teacher pointed toward the field. When the officers arrived at the field, there were numerous children gathered around watching the fight. As the patrol cars approached, the children began dispersing, some running toward the woods. Chief Philley spoke to the children through an amplified speaker and warned the children to stop running and come back to the area where the policemen were. Some of the children stopped, but some kept running through the woods and eventually came out of the woods on Hurt Road.

While he was at the field, Chief Philley contacted the dispatcher to request the fire

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department's assistance in transporting the children to the police department. The children¹ gave their names to the police at the field. They were then transported to the police station. Other children were picked up by Officer Ben Twitchell as they came out of the woods onto Hurt Road. They too were transported to the police station. Two other children, C-2A and C-3 were picked up by two firemen at the railroad tracks near the school. C-2B, C-2A's younger brother, was picked up by the firemen at the Discount Market store while he was inside the store. All three children were transported to the police station. The firemen's testimony indicates that someone from the police department gave them orders to pick up children in the vicinity of the field. Fireman Turner also testified that a police officer told Turner that he believed some of the children had gone into the Discount Market store. However, Fireman Turner could not identify that policeman

When the children arrived at the station, they were detained together in a small room. They were later taken to a courtroom where they each were required to give their names, their parents' names, and their parents' places of employment. An officer asked if any of the children had been arrested before. The officer filled out a Juvenile Summons and Arrests Form on those children that answered in the affirmative, charging them with inciting a riot. The remaining children's names were forwarded to the Youth Court on a charge of disorderly conduct. The length of each child's detention varies, but the range was approximately from two to four hours. The parents eventually received letters from the Youth Court which stated that the charges would not be pursued in Youth Court as they had no basis in fact.

During the period of detention, Chief Philley noticed a vulgarity written in the dust on his patrol car. When no one admitted to writing the vulgarity, Chief Philley ordered the children that had been standing near the car to wash it. Before the detention was over, many of the children were made to wash several police cars and an ambulance. The car washing took place in view of passersby and the news media, although the children's faces were not filmed.

Eleven of the children filed suit in the case sub judice. Some of them were picked up at the field, some of them were picked up on Hurt Road, two of them were picked up at the railroad tracks near the school, and one was picked up at the Discount Market Store. The fighters at the field are not plaintiffs in this case.

SUMMARY JUDGMENT STANDARD

Summary judgment should only be granted when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must present its basis for the motion after which the non-moving party then has a duty to present enough evidence to create a factual dispute. Celotex v. Catrett Corp., 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If there is sufficient evidence before the court that would allow a jury to return a verdict for the non-moving party, the motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986).

Rule 56 requires the non-moving party to establish the existence of all the elements essential to the cause of action as to which the non-moving party has the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53, 91 L.Ed.2d at 273.

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning

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an essential element of the non-moving party's case renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Id. The moving party is under no obligation to support its motion with affidavits or other evidence to negate the non-moving party's claim, but is only obligated to inform the court of the basis for its motion and identify the relevant evidence that demonstrates the lack of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552, 91 L.Ed.2d at 274.

CONSTITUTIONAL CLAIMS

I. FOURTH AMENDMENT

A. All plaintiffs except C-2A, C-3, and C-2B

Plaintiffs' fourth amendment claim is that their arrests and detention were unconstitutional because the defendants lacked probable cause to make the arrests.² "Probable cause for arrest exists `when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant in a person of reasonable caution the belief that an offense has been or is being committed.'" United States v. Fortna, 796 F.2d 724, 739 (5th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986) (citations omitted). In § 1983 cases where there is no conflict in the evidence, the determination of probable cause is one the court should make. Garris v. Rowland, 678 F.2d 1264, 1270 (5th Cir.1982), cert. denied sub nom., City of Fort Worth v. Garris, 459 U.S. 864, 103 S.Ct. 143, 74 L.Ed.2d 121 (1982). However, if the facts relied upon to show probable cause are in conflict, then the issue should be submitted to the jury. Id. at 1270. See also Canfield v. Chappel, 817 F.2d 1166, 1168 (5th Cir.1987); Hindman v. City of Paris, 746 F.2d 1063, 1069 (5th Cir.1984). Most of the plaintiffs were charged with disorderly conduct, but three of them were charged with inciting a riot. Defendants argue that the arrests did not violate the fourth amendment because the defendants had probable cause to arrest all the plaintiffs present at the field for trespassing and inciting a riot.³ The Fifth Circuit has held that:

The legality of an arrest may be established by proving that there was probable cause to believe that the plaintiff had committed a crime other than the one with which he was eventually charged, provided that the "crime under which the arrest is made and the crime for which probable cause exists are in some fashion related."

Gassner v. City of Garland, TX, 864 F.2d 394, 398 (5th Cir.1989) (quoting Trejo v. Perez, 693 F.2d 482, 485 (5th Cir.1982) (quoting United States v. Atkinson, 450 F.2d 835, 838 (5th Cir.1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972) (quoting Mills v. Wainwright, 415 F.2d 787 (5th Cir.1969)). In other words, there must be a nexus between the crime charged and the crime for which probable cause exists. Gassner, 864 F.2d at 398.

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The question can be answered "by asking only whether the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated officer, also have served as the basis for a charge for which there was probable cause." Trejo, 693 F.2d at 486

Plaintiffs contend that no sufficient nexus exists between the offense of disorderly conduct and the offense of trespassing, the offense for which defendants claim probable cause existed. The court agrees. The location where plaintiffs' behavior occurred is unimportant. The elements of trespassing and disorderly conduct/inciting a riot are not similar in nature and the court sees no logical nexus between the offenses. In essence,...