Opinion
No. 4:99CV 88-P-B
July 6, 2000
MEMORANDUM OPINION
This case is presently before this Court on the defendants' motion for summary judgment. The facts of the case are as follows:
FACTUAL BACKGROUND
Danny Topps attended a New Year's Eve party at the Foundation Building in Hollandale, Mississippi, on December 31, 1997. He brought a pint of Crown Royal with him to the party, but he claims the alcohol was "for the mutual use of the twenty or twenty-five people present," and not for him, as he suffers from "stomach problems" and "drinks sparingly." He does claim that he did drink a small amount of liquor, but no more than two and a half or three drinks. Hollandale police officer Johnny Spand, a defendant in this case, visited the party, but only in his official capacity, to "check" on the party. Around 1:00 or 1:30 a.m. on January 1, 1998, the party ended, and Topps assisted the host in cleaning up. Topps then left the party, was taken to his car at a friend's house, and started home towards Greenville, Mississippi, on Old Highway 61. While on Old Highway 61, which is known in Hollandale as Main Street, he passed the Hollandale Fire Department and noticed two city police cars in the parking lot. Topps honked his horn at the officers several times, in greeting, and continued to drive north on Old Highway 61.
Topps claims that on this night, he obeyed all applicable traffic regulations. However, the two officers who were parked in the fire station parking lot, Officer Spand and Chief Green Townsend, claim that Topps was traveling at a visibly high rate of speed. Chief Townsend instructed Officer Spand to pursue and stop Topps. Townsend subsequently followed. Both Spand and Townsend insist that they both activated their blue lights and wig-wags. However, Topps maintains that he never saw the blue lights. In any event, Topps continued to travel north on Old Highway 61, which takes several sharp turns just outside of the city limits. When Topps had traveled less than a mile outside the city limits, he lost control of his car and the car flipped, causing Topps to be thrown from the car. As a result, Topps suffered serious injuries, and his car was completely destroyed.
In the parking lot, the two cars were parked in opposite directions, so that each driver's side window faced the other driver's side window. Spand's car was facing the highway, thus he could begin the pursuit of Topps quicker than Townsend could. Townsend's vehicle was not facing the highway, so it was necessary for him to turn his car around before he could begin his pursuit.
Topps claims that he lost control of his car because he was "overtaken from the rear by a fast approaching vehicle which frightened him and which shined its bright headlights upon him, which reflected through the automobile mirrors and blinded him." Plaintiff's Opposition Brief at 3. Spand, the officer immediately following Topps, claims that he could not catch up with Topps; therefore, he decreased his speed. As Spand approached a sharp curve in the road, he noticed a thick cloud of dust and found Topps lying on the ground, across the road from his wrecked vehicle.
Topps filed this § 1983 lawsuit against the City of Hollandale, Chief Townsend, and Officer Spand, alleging that the defendants operated their patrol cars in a "negligent and reckless manner and in reckless disregard of the safety and well-being of the plaintiff." Furthermore, he asserts that the officers violated the Fourth Amendment by using excessive force in the seizure of him. Finally, he claims that the defendants violated his due process rights allowed by the Fourteenth Amendment. The defendants have filed a motion for summary judgment, claiming that they are exempt from liability pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-9(1)(c) and (d). Additionally, the defendants assert that no violation of the Fourth or Fourteenth Amendment occurred.
Chief Townsend and Officer Spand are each sued individually and in their official capacity.
SUMMARY JUDGMENT STANDARD
Summary judgment should be entered only if ". . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The party seeking summary judgment has the initial burden of demonstrating through the evidentiary materials that there is no actual dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In determining whether this burden has been met, the court should view the evidence introduced and all factual inferences from that evidence in the light most favorable to the party opposing the motion. Id. "[T]he 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." Celotex Corp. v. Catrett, supra, at 322.
The summary judgment procedure does not authorize trial by affidavit. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., supra, at 255. Accordingly, a court may not decide any factual issues found in the record on motion for summary judgment, but if such material issues are present, the court must deny the motion and proceed to trial. Impossible Elec. Tech. v. Wackenhut Protection Systems, 669 F.2d 1026, 1031 (5 Cir. 1982); Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5 Cir. 1981); Lighting Fixture Electric Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5 Cir. 1969).
Under the provisions of Rule 56(e), Federal Rules of Civil Procedure, a party against whom a motion for summary judgment is made may not merely rest upon his pleadings, but must, by affidavit, or other materials as provided in Rule 56, inform the court of specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, supra, at 324. The facts stated in uncontradicted affidavits or other evidentiary materials must be accepted as true. However, the moving party must still show that he is entitled to judgment on those facts as a matter of law, and if he fails to discharge that burden he is not entitled to judgment, notwithstanding the apparent absence of a factual issue. 6-Pt. 2, Moore, Federal Practice (2d Ed.), ¶ 56.22[2], p. 56-777.
Summary judgment is not proper if a dispute about a material fact is "genuine," or in other words the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, supra at 248. There is no such issue unless the evidence sufficiently supports the non-moving party's version of the facts for a jury to return a verdict in the non-moving party's favor. Id., at 249. The relevant inquiry is whether or not there is sufficient disagreement on the facts to submit them to the jury or whether it is so one-sided that one party should prevail as a matter of law. Id., at 251. The issue must be genuine, and not pretended, and the evidence relied on to create such an issue must be substantial. Southern Distributing Co. v. Southdown, Inc., 574 F.2d 824, 826 (5 Cir. 1978); Schuchart Associates v. Solo Serve Corp., 540 F. Supp. 928,
939 (WD Tex. 1982).
LEGAL ANALYSIS
The Mississippi Tort Claims Act
The Mississippi Tort Claims Act provides:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
. . . .
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;
Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.
Miss. Code Ann. § 11-46-9(1)(c) and (d).
Accordingly, the City of Hollandale and its employees cannot be liable for Topps' injuries unless they acted with reckless disregard to Topps, provided that he was not engaged in criminal activity at the time of his injury. The city and its employees also cannot be found liable based upon the exercise of their discretionary functions.
§ 11-46-9(1)(c)
The defendants may be liable to Topps' injuries if Topps can show that they acted with reckless disregard of his safety and well-being, provided that Topps was not engaged in criminal activity at the time of his injury. The Mississippi Supreme Court analyzed this section of the Mississippi Tort Claims Act in Turner v. City of Ruleville, 735 So.2d 226 (Miss. 1999). The court stated that reckless disregard "embraces willful and wanton conduct which requires knowingly and intentionally doing a thing or wrongful act." Id. at 230. Thus, the defendants in the case before this Court must have intentionally chased after Topps in such a way as to frighten him and cause him to wreck his vehicle.
Topps believes that Spand, while following him, may have pushed his car in such a way as to cause Topps to loose control of his vehicle. He stated in his deposition that while he was driving on Old Highway 61, he felt a jolt, prompting him to believe he was being pushed from behind. He stated "[t]o my knowledge, . . . I think someone pushed me off the road. Because when I kept trying to stop the car, it felt like something was pushing the car." Topps Dep. at 77. A few months after the accident, however, Topps inspected his vehicle, but he could not determine if the bumper had been damaged, although he did notice that the rear rubber bumper on the passenger side was slightly torn. Id. at 79. This Court cannot determine based on this evidence, that Spand intentionally ran Topps off the road. Any damage that the car's bumper may have incurred more than likely was due to the wreck itself, not by Spand.
Even if the defendants acted with reckless disregard for Topps' safety, they will not be liable for Topps' injury if he was engaged in criminal activity when the accident occurred. Initially, Spand and Townsend pursued Topps because they believed he was driving recklessly. The officers observed Topps driving at a visibly high rate of speed, and they heard the acceleration of the motor. Furthermore, when the officers flashed their blue lights as Topps passed them, Topps in no way responded. He was subsequently charged with failure to yield to the officers' blue light and with driving with a suspended license. The Court finds it reasonable that Topps was engaged in criminal activity at the time of his accident, based on his possible speeding, his failure to yield to the blue lights, and his driving with a suspended license. As such, the officers should not be held liable for his injuries.
§ 11-46-9(1)(d)
The officers will also be exempt from liability if they were engaged in the performance of a discretionary function at the time of Topps' injury. The Mississippi Supreme Court held in Mosby v. Moore, 716 So.2d 551 (Miss. 1998), that the act of driving for police officers is a major part of their jobs. It is something that they must do in order to fulfill their duties. They do not drive simply to get from one place to another, instead they patrol. This type of driving does involve a discretionary, decision-making process. . . .
Id. at 558. Clearly, Spand and Townsend were patrolling the area when they observed Topps' vehicle. According to the statute, the officers would be exempt from liability even if they abused their discretion. See Miss. Code Ann. § 11-46-9(1)(d). Topps claims that the officers should not have pursued him because he was violating no traffic laws; furthermore, he claims that they abused their discretion in following him, since he is of the opinion that he "may have" been pushed off of the road during the encounter. However, according to the statute, the fact that the officers may have abused their discretion in pursuing Topps still does not impose liability upon the defendants. As such, Topps' claim fails pursuant to Miss. Code Ann. § 11-46-9-(1)(d).
Civil Rights Violations
Topps also asserts that the defendants violated his civil rights pursuant to 42 U.S.C. § 1983. That statute reads:
Every person who, under color of any state statute, . . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,. . . .
Id. Section 1983 is a means of vindicating rights arising under the Constitution. In a § 1983 lawsuit, the plaintiff must demonstrate that he has been deprived of a right secured by the Constitution or laws of this nation. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981). In the case presently before this Court, Topps alleges a violation of his Fourth and Fourteenth Amendment rights.
The Fourth Amendment reads in part:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . .
"[C]laims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure'" should be addressed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871,104 L.Ed.2d 443 (1989). The Supreme Court has recently clarified its holding in Graham, stating that not . . . all constitutional claims relating to physically abusive governmental conduct must arise under either the Fourth or Eighth Amendments; rather, . . . if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.
County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 1715, 140 L.Ed.2d 1043 (1998) (citing United States v. Lanier, 520 U.S. 259, ___, n. 7, 117 S.Ct. 1219, 1228, n. 7, 137 L.Ed.2d 432 (1997). Therefore, this Court will only utilize the Fourteenth Amendment substantive due process analysis if Topps' claim is not "covered by" the Fourth Amendment.
Violations of the Fourth Amendment require an "intentional acquisition of physical control." Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989). Additionally,
Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.
Brower, 489 U.S. at 596-597, 109 S.Ct. at 1381. Thus, "no Fourth Amendment seizure would take place where a `pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit,' but accidently stopped the suspect by crashing into him." Lewis, 523 U.S. at 844, 118 S.Ct. at 1715 (citing Brower, 489 U.S. at 597, 109 S.Ct. at 1381-1382).
Since a mere police pursuit in attempting to seize a person does not amount to a `seizure' within the Fourth Amendment, Topps must demonstrate that the defendants knowingly intended to end the pursuit by causing Topps to crash. See Lewis, 523 U.S. at 843, 118 S.Ct. at 1715. This Court can find no evidence to indicate the officers intended to stop the chase by causing Topps to loose control and wreck his car. Spand testified in his deposition that, when he determined that he could not "catch up" with Topps, he slowed down. Within seconds, as Spand approached a sharp curve in the road, he observed a thick cloud of dust and Topps' wrecked vehicle. Clearly, Spand did not intentionally pursue Topps in such a way as to cause Topps' accident. As such, this Court can find no violation of the Fourth Amendment.
However, this does not end the inquiry. This case involving a police pursuit should now be analyzed under the standard appropriate for substantive due process violations under the Fourteenth Amendment. Topps must establish through the evidence that the defendants' conduct "shocks the conscious" and "violates the decencies of civilized conduct." Lewis, 523 U.S. at 847, 118 S.Ct at 1717. Obviously, this is a very stringent standard. This Court cannot find any evidence that indicates that Spand or Townsend acted in such a way as to "shock the conscious." The officers merely attempted to stop Topps, an individual that they believed was driving recklessly. Given the facts of the case, at the very most the officers acted negligently in pursuing Topps in the early morning hours of January 1, 1998. But negligence alone is not enough to impose liability under § 1983. "[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Id., 523 U.S. at 849, 118 S.Ct. at 1718. Thus, because Topps has not presented any evidence to demonstrate that the defendants acted in such a way as to "shock the conscious," his claim brought pursuant under § 1983 must fail, since no evidence has been presented to support a substantive due process violation.
CONCLUSION
Based on the foregoing, the Court hereby finds that the defendants' motion for summary judgment should be granted. An order will issue accordingly.