Opinion
Civil Action No. 1:96cv341-D-A
January 21, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the defendant for the entry of partial summary judgment. Finding that the motion is partially well taken, the court shall grant the motion in part and dismiss certain claims of the plaintiff. The court shall deny the remainder of the motion.
Factual Background
In October 1995, defendant Johnny Langdon, a police officer for the Greenwood Police Department, arrested the plaintiff during a traffic stop for driving with a suspended license and for running a stop sign. According to the plaintiff, during the course of the arrest, Officer Langdon utilized force against him in an unreasonable manner:
Officer Langdon grabbed Mr. Gammill's shoulder, spun him completely around, and pushed him against the car.
[Langdon] forced [Gammill's] arm behind his back, and slammed his head and neck against the roof of the car.
When they arrived back at the patrol car, Officer Langdon shoved Mr. Gammill into the open door allowing his head, neck and back to hit the door frame.
Plaintiff's Response, p. 4-5. Langdon took the plaintiff into custody and transported him to the municipal jail, where the plaintiff made a cash bond and was released. In municipal court, the plaintiff pled guilty to the charge of running a stop sign and the suspended driver's license charge was dismissed. This action followed. The defendants have filed with this court a motion for the entry of partial summary judgment on most of the plaintiff's claims, and the court now takes up that 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, 106 S.Ct. at 2510; 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, 106 S.Ct. at 2510;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 for trial."Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see City of Nederland, 101 F.3d at 1099. Finally, all facts are refrom.See Anderson, 477 U.S. at 254, 106 S.Ct. at 2513; 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 Luian v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695(1990).
The Plaintiff's Claims
Civil Rights Claims under 42 U.S.C. § 1983
The plaintiff also asserts in his complaint a charge of excessive force against the defendant Johnny Langdon. Plaintiff's Complaint, ¶ VII. That claim, however, is not encompassed by the defendants' motion for partial summary judgment. Defendants' Brief, p. 2 n. 3 ("Because there are genuine issues of material fact between Officer Langdon's and Plaintiff Gammill's versions of the events at issue, defendants have not moved for summary judgment on plaintiff's excessive force claim against Officer Langdon in his individual capacity.").
False Arrest Claim Against Defendant Langdon
The plaintiff charges that the defendant arrested him without probable cause on the charge of driving with a suspended license. Plaintiff's Complaint, ¶ VII. It is well established, however, that as long as probable cause exists to arrest a plaintiff at that point in time on a different charge, a claim for false arrest fails as the officer is entitled to the protection of qualified immunity. Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) ("`Even if there was not probable cause to arrest the plaintiff for the crime charged, proof of probable cause to arrest the plaintiff for a related offense is also a defense to a false arrest section 1983 claim.") (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990));Gassner v. City of Garland, Tex., 864 F.2d 394, 397 (5th Cir. 1989); Trejo v. Perez, 693 F.2d 482, 485 (5th Cir. 1982). Under such circumstances, a reasonable officer would have believed that he would have not been violating the plaintiff's rights by arresting the plaintiff. In this case, the defendant Langdon not only arrested the plaintiff on a charge of driving with a suspended license, but also for running a stop sign. Exhibit "D" to Defendants' Motion, Deposition of Johnny Langdon (Exhibit "1" to deposition, Uniform Traffic Citation dated Oct. 18, 1995). Mr. Gammill pled guilty to the charge of running a stop sign, and that conviction remains valid. Exhibit "F" to Defendants' Motion, Abstract of Greenville Municipal Court Record. As that conviction has not been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus," the plaintiff may not challenge the validity of his arrest on that charge. Heck v. Humprev, — U.S. — 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383, 394 (1994); Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir. 1997); Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). While the Heck doctrine does not directly bar the plaintiff's claim for false arrest on the suspended license charge, it does preclude him from asserting an essential element of that claim — that no probable cause existed for his arrest at the time on any valid charge.
The Heck doctrine is simply an application of long-established rules of preclusion — the plaintiff's judgment of criminal conviction on the charge of running a stop sign carries collateral estoppel effect. The issue of whether probable cause existed for arrest on that charge 1) is identical to the issue of probable cause that was before the Municipal Court; 2) was actually litigated; and 3) was necessary and essential to the entry of the prior criminal judgment.Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1337 (5th Cir. 1996) ("When a federal court is asked to give res judicata effect to a state court judgment, the federal court must determine the preclusiveness of that state court judgment under the [preclusion] principles of the state from which the judgment originates."); Evans v. Sharpley, 607 So.2d 1210, 1213 (Miss. 1992) (noting elements of collateral estoppel); In the Interest of K.M.G., 500 So.2d 994, 997 (Miss. 1987) (same).
The plaintiff counters that the defendant Langdon was not required to make a custodial arrest of the plaintiff, but rather could have merely issued him a citation. Miss. Code Ann. § 63-9-21. Additionally, the plaintiff notes that a person arrested for a traffic offense has the option of posting his driver's license in lieu of bail, but Mr. Gammill was required to make a cash bond. Miss. Code Ann. § 63-9-25. An officer's statutory discretion aside, the fact remains that the defendant Langdon had available to him the option of making a custodial arrest of the plaintiff on the charge of running a stop sign. The question relevant to the plaintiff's claim of false arrest is not whether officer Langdon arrested the plaintiff in a proper manner, but whether he properly arrested the plaintiff at all. Further, insofar as posting his driver's license was concerned, the plaintiff possessed no licence to post. Miss. Code Ann. § 63-9-25. There is no genuine issue of material fact as to this claim of the plaintiff, and the defendant Langdon is entitled to the entry of a judgment as a matter of law regarding the plaintiff's claim of false arrest.
The manner in which the defendant Langdon arrested the plaintiff may indeed have bearing upon other types of claims, including the plaintiff's claim of excessive force, i.e., whether the exercise of the force utilized was reasonable. Additionally, such action may give rise to other types of claims. Regardless, however, the fact that the plaintiffs arrest was custodial does not impugn the validity of the arrest itself.
Municipal Liability for Failure to Supervise
The plaintiff also seeks to impose liability upon the defendant City of Greenwood, asserting that it failed to adequately train and supervise the defendant Langdon in his duties as a police officer. In order to establish such a claim, the plaintiff must not only establish that the plaintiff suffered an injury pursuant to an official policy or custom of the City of Greenwood, but also 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 by the [municipality] 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 that municipal liability for a failure to adequately train may only be found where the failure to train is deliberately indifferent — i.e., "where the failure to train reflects a deliberate and conscious choice").
Upon review of the evidence at bar, this court is of the opinion that the defendants have carried their burden to establish the lack of genuine issues of material fact and that they are entitled to the entry of a judgment as a matter of law. The only proof before the court that responsible Greenwood officials should have known that their training and supervision policies were inadequate with regard to the defendant Langdon is a handful of complaints filed against the defendant Langdon during his fourteen (14) year career as a law enforcement officer. The most recent of these complaints was filed in 1990, more than seven years ago, and this court may take judicial notice that every police officer must endure a minimal number of complaints made against them throughout his or her career. Apparently, each of these incidents were investigated and appropriate action was taken. These complaints, taken in toto, are alone insufficient to permit a reasonable trier of fact to determine that responsible Greenwood officials were aware of inadequacies in the training or supervision of the defendant Langdon, nor are they sufficient to establish that officials responded to those inadequacies with deliberate indifference. In consideration of all of the attendant facts and circumstances, this court cannot say that a genuine issue of material fact exists regarding this claim of the plaintiff. The defendants are entitled to the entry of a judgment as a matter of law on this claim.
State Law Claims — The Mississippi Tort Claims Act
Procedural Requirements
With regard to the plaintiff's claims arising under state law, the defendants initially charge that the plaintiff has failed to comply with applicable procedural requirements. Defendants' Brief, p. 9 ("Also, plaintiff has failed to comply with the procedural requirements of the Tort Claims Act, as there is no indication the Notice of Claim attached to the First Amended Complaint was served on the Chief Executive Officer of the City of Greenwood via certified mail."). The Mississippi Tort Claims Act does indeed require that such service be made. Miss. Code Ann. § 11-46-11 (Supp. 1994). The plaintiff, however, has submitted proof to the court that he has indeed complied with these notice requirements. Exhibits "K" and "L" to Plaintiff's Response. The defendants have not carried their burden of disproving genuine issues of material fact, and the undersigned cannot say that the defendants are entitled to the entry of a judgment as a matter of law in this regard.
Exclusion of Liability — Miss. Code Ann. § 11-46-9
The Mississippi Tort Claims Act provides in relevant part:
§ 11-46-9 Exemption of governmental entity from liability on claims based on specified circumstances
(1) A governmental entity and its employees acting within the scope of their employment or duties shall not be liable for any claim:
(c) Arising 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) (Supp. 1995). It is the defendants' contention that this exclusion prohibits state law claims against them for two reasons: 1) the plaintiff was engaged in criminal activity at the time of the alleged injury; and 2) there is insufficient proof that the defendant Langdon acted with "reckless disregard" of the plaintiff's safety and well being in this case.
As to their contention that the plaintiff was "then engaged in criminal activity," the court finds this argument without merit. Based upon the facts presently before the court, it appears that the plaintiff suffered his injuries during the course of being arrested for previously committed criminal activity and was not then engaged in criminal activity. At the time of his arrest, the plaintiff was not running a stop sign. Further, he was not even driving his vehicle, either with or without a valid license. Had the plaintiff resisted arrest and suffered injury, for example, he would have then been engaged in criminal activity at the time of his injury. In this regard, the defendants have failed to demonstrate their entitlement to summary judgment.
The determination of whether the defendant Langdon acted with "reckless disregard" of the plaintiff's safety and well being, however, is a different question. The defendants would have this court apply the pronouncements of a recent unpublished decision by the Mississippi Supreme Court, which determined that "reckless disregard for the safety of others is synonymous with wilfulness and wantonness and includes an element of intent to harm with regard to [a] plaintiff's injury." Turner v. Ruleville, 1997 WL 562151, *4 (Miss.), Cause No. 95-CA-0080-SCT. As such, the defendants contend, the plaintiff's "description of his arrest and the process of Officer Langdon escorting him to and placing him in the police car simply does not rise to that high level of fault which is reckless disregard." Defendants' Rebuttal Brief, p. 10.
This decision has not yet been designated for publication by the Mississippi Supreme Court. Miss. R. App. P. 35-A. Indeed, this court is aware that the Turner matter has been set down for rehearing before the Mississippi Supreme Court. The undersigned, therefore, shall not afford the Turner decision precedential weight.
This court must disagree. In his complaint, the plaintiff has alleged that the defendant Langdon
took plaintiff into custody in a most brutal fashion. However, before he used unreasonable force against the Plaintiff, Plaintiff advised Langdon that he had just had surgery to his neck and that to be careful with the way he treated him. Defendant Langdon ignored this request and twisted the Plaintiff's shoulder, as well as slamming his head into the roof of the automobile, which caused immediate excruciating pain to his neck.
Plaintiff's Complaint, ¶ V. The factual scenario painted by the plaintiff connotes intentional conduct by the defendant Langdon, which most assuredly encompasses "reckless disregard" for the plaintiff's safety and well-being. The plaintiff has sufficiently stated facts from which he may recover against the defendants even in light of the protections afforded by Miss. Code Ann. §§ 11-46-9. There exist genuine issues of material fact regarding these claims, and the defendants are not entitled to the entry of a judgment as a matter of law.
Even if the Turner decision cited by the defendant carried precedential weight with this court, the undersigned has serious doubts as to the validity of its interpretation of "reckless disregard." The Turner decision equates the mental state required for "reckless disregard" to that of an intentional tort, and is contrary to both longstanding Mississippi Supreme Court decisions regarding tort law and even basic hornbook tort law.
[T]he mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent. The defendant who acts in the belief or consciousness that the act [committed by him] is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.
W. PAGE KEETON, PROSSER AND KEETON ON TORTS p. 36 (5th Ed. 1984) (emphasis added). Reckless means
Not reckoning; careless, heedless, inattentive; indifferent to consequences. According to circumstances it may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive, or negligent. For conduct to be "reckless" it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended.
BLACK'S LAW DICTIONARY, 1270 (6th Ed. 1990) (emphasis added). When the Mississippi Supreme Court takes this matter up for rehearing, the undersigned is confident that they shall remedy this oversight.
The defendants also ask this court to grant their motion on these claims because the plaintiff has failed to specifically plead "reckless disregard" in his complaint. In light of liberal pleading requirements of the Federal Rules of Civil Procedure, however, the undersigned does not find that such is required. "Under the Federal Rules of Civil Procedure, a pleading, or pretrial order, need not specify in exact detail every possible theory of recovery-it must only `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'"Thrift v. Hubbard, 44 F.3d 348, 356 (5th Cir. 1995) (citingConley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)). Mississippi is also a notice pleading state. See, e.g., Owen v. Pringle, 621 So.2d 668, 671 (Miss. 1993); Rich v. Nevels, 578 So.2d 609, 616 (Miss. 1991); Independent Life Acc. Ins. Co. v. Peavey, 528 So.2d 1112, 1116 (Miss. 1988). The facts set forth in the plaintiff's complaint are sufficient to apprise the defendants of Mr. GammiH's claims in this regard.
III. Conclusion
After careful consideration of the motion of the plaintiff for partial summary judgment and all of the evidence presently before the court, the undersigned is of the opinion that the motion should be partially granted. The court shall grant the motion insofar as it pertains to the plaintiff's § 1983 claims of false arrest and failure to supervise and train the defendant Langdon. With regard to the remaining claims of the plaintiff, the motion shall be denied. In any event, this court has the discretion to deny the remaining portions of the defendants' motion for partial summary judgment and allow the remaining claims of the plaintiff to proceed to trial in order to more fully develop the record for the trier of fact. Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir. 1995); Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994); Veillon v. Exploration Services Inc., 876 F.2d 1197, 1200 (5th Cir. 1989).
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT IN PART
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
the defendants' motion for partial summary judgment is hereby GRANTED IN PART AND DENIED IN PART. The motion is granted insofar as it seeks dismissal of the plaintiff's claims for false arrest and for the defendant City of Greenwood's failure to train or supervise the defendant Langdon. With regard to the remainder of the plaintiff's claims, the motion is hereby DENIED;
the plaintiff's claims for false arrest are hereby DISMISSED;
the plaintiff's claims against the City of Greenwood for failure to train or supervise are hereby DISMISSED.