Opinion
CIVIL ACTION NO.: 2:00CV7-D-B.
February 15, 2001.
OPINION
Before the court is the Defendants' Motion for Partial Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has failed to file a response. Upon due consideration, the court finds that the motion is well taken and should be granted.
Factual Background
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted.
On the afternoon of April 14, 1999, the Plaintiff, Bruce Bradford (Bradford), arrived at the Senatobia Police Department (police department) to inquire about problems he was having with his children. Bradford alleges that after he entered the Police Department, Officer Scott Becton (Becton) asked Bradford if he had been drinking. Becton repeated the question several times and inquired whether Bradford had someone to take him home. When Bradford did not reply, Becton asked him to take a breathalyzer test, which Bradford refused. As Bradford allegedly attempted to walk away, Becton grabbed him and spun him around. His ankle popped and he yelled out. Becton then "slammed" him to the floor, jumped on him, and began hitting him with his fist in the lower back. Next, Becton allegedly brought Bradford's arm up very high behind his back, handcuffed him and arrested him for DUI. All this is purported to have happened while two female officers were watching and laughing.
Bradford's complaint is silent as to whether he attempted to drive away from the police department. According to his deposition, Bradford did not attempt to drive. However, Becton contends that his first encounter with Bradford was while Bradford was leaving the police station in his automobile. It is undisputed that Bradford later pled "no contest" to DUI second charges as a result of the events of April 14, 1999.
Bradford does admit that he had been drinking alcohol on April 14, 1999, and that he was under the influence of Zoloft, Acetaminophen/codeine and propoxyphene/Acetaminophen.
Subsequently, Bradford filed the instant lawsuit alleging violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution and state law claims of assault, battery, and slander. Defendants' move the court to dismiss Bradford's federal claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments and the state law claims of slander. Defendants have not moved for dismissal of Bradford's federal Fourth Amendment claims against the individual Defendant, Becton, due to factual questions. All claims against Defendants, Steve Hale, John Lostin, Michael Cathey, Adam Calicott, and A.C. Sykes, in their individual capacity, were dismissed with prejudice by a consent order of this court on February 11, 2000.
Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing'. . .that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to "go beyond the pleadings and by. . .affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "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., 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).
Discussion
The Plaintiff has sued both the City of Senatobia and numerous city officials in their official capacity, in addition to suing Becton individually. It is axiomatic that suing a government official in his official capacity is the equivalent of naming the government entity itself as the defendant. Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985). Bradford here, therefore, is in essence suing only two entities, the City of Senatobia and Sergeant Becton individually. As such, the court shall simultaneously address the claims against the City and the city officials in their official capacity.
A. Liability Under 42 U.S.C. § 1983
Bradford has sued the City of Senatobia for constitutional violations which allegedly occurred to him on April 14, 1999. Bradford, however, does not mention anywhere in his complaint that the customs or policies of the City of Senatobia, or any of their policy makers, deprived him of a constitutional right.
It is well established law that in order to attach liability to a governmental entity, under 42 U.S.C. § 1983 for constitutional violations, Bradford must establish: (1) that the municipal employee violated his clearly established constitutional rights with deliberate indifference; and (2) that this violation resulted from an official municipal policy or custom adopted and maintained with objective deliberate indifference. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2035-35, 56 L.Ed.2d 611 (1978);Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999). Additionally, only where a direct causal relationship as between official policy or custom of a governmental entity and a constitutional deprivation exists will liability under § 1983 arise. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. See also, Piotrowski v. City of Houston, 51 F.3d 512 (5th Cir. 1995); Lefall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994).
Bradford has simply not offered any evidence to overcome a summary judgment motion. "[M]ere allegations or denials" are insufficient to adequately oppose a motion for summary judgment. Fed.R.Civ.P. 56(e). Instead, as previously noted, a party facing a summary judgment motion must "go beyond the pleadings and by. . .affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. Bradford has failed to do so in this case. His mere allegation in his complaint that a single incident occurred is insufficient to constitute a custom or policy. He points to no policy, no custom, and no prior reported incidents. As a result, summary judgment is proper for all Defendants on any § 1983 claims made by Bradford.
B. Eighth Amendment claims.
The language of the Eighth Amendment: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted," manifests "an intention to limit the power of those entrusted with the criminal-law function of government." Ingraham v. Wright, 430 U.S. 651, 644 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711 (1977). The cruel and unusual punishments clause "was designed to protect those convicted of crimes," and consequently, the clause applies "only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Id., at 671, n. 40, 97 S.Ct., at 1412, no. 40. See also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983); Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d 447 (1979) Whitley v. Albers, 475 U.S. 312, 318-326, 89 L.Ed.2d 251, 106 S.Ct. 1978 (1986).
It is clear from the complaint that Bradford was not a post conviction prisoner at the time of the alleged use of excessive force. Consequently, summary judgment is appropriate as a matter of law on the Eighth Amendment claims as to all Defendants.
C. Fourteenth Amendment claims.
In Graham v. M.S. Connor, 490 U.S. 386, 389, 109 S.Ct. 1865, 1868, 104 L.Ed.2d 443 (1989), the United States Supreme Court applied the Fourth Amendment's "objective reasonableness" standard, rather than the subjective due process standard under the Fourteenth Amendment, to claims that law enforcement officers used excessive force, deadly or not, in the course of an arrest, investigatory stop or other "seizure" of a person.Id. In Powell v. Gardner, 891 F.2d 1039, 1044 (2nd Cir. 1989), the Second Circuit proclaimed that the Fourth Amendment protects an arrestee in the custody of an arresting officer, at least until he is arraigned or formally charged. Id.
Again, Bradford does not allege any constitutional violations after his arrest, only before and during. Consequently, the Fourth Amendment, rather than the Fourteenth Amendment should apply. As a result, summary judgment is proper on the Fourteenth Amendment claims as a matter of law as to all Defendants.
D. Sixth Amendment claims.
The Sixth Amendment guarantees a criminal defendant the right to a speedy and impartial trial, adequate notice of the charges against him and the effective assistance of counsel. U.S. CONST. amend. VI. Bradford's complaint does not allege a single factual allegation that he was denied a speedy or impartial trial, notice, or assistance of counsel. In fact, Bradford plead no contest to the charge of DUI second only two weeks after the April 14, 1999, incident, thereby waiving the right to a jury trial. Further, the same counsel in the instant case, also represented him in his criminal case.
Bradford simply cannot make out a prima facie case under the Sixth Amendment. Therefore, all Defendants are entitled to summary judgment on the Sixth Amendment claims as a matter of law. E. Fifth Amendment claims.
The Fifth Amendment of the Constitution requires an indictment by a grand jury, and protects a person from double jeopardy, self-incrimination, and due process violations. U.S. CONST. amend V. In a Fifth Circuit case, Richard v. City of Harahan, 6 F. Supp.2d 565 (5th Cir. 1998), the court declared that the due process clause of the Fifth Amendment comes into play in claims of excessive force when the arrest is complete. Id. at 570. Further, the court stated that due process components of the Fifth Amendment apply only to federal actors. Id. at 571.
Once again, Bradford has not alleged any factual bases for Fifth Amendment violations. He has plead no facts which would suggest that he did not have a grand jury indictment, was forced to testify against himself, or was a victim of double jeopardy. He has plead facts of possible excessive force before and during, but not after, his arrest. The Fifth Amendment due process clause does not apply to the facts which Bradford has plead. Further, City of Senatobia police officers are not federal actors and consequently, the Fifth Amendment does not apply to their actions. Richard at 571. As a result, summary judgment is proper as a matter of law on Bradford's Fifth Amendment claims of excessive force as to all Defendants.
F. Slander claims.
To establish a claim for defamation, Bradford must prove the following elements: (1) A false and defamatory statement concerning Bradford; (2) unprivileged publication to a third party; (3) fault amounting at least to negligence on part of publisher; and (4) either actionability of statement irrespective of special harm or existence of special harm caused by publication. Harris v. Lewis, 755 So.2d 1199, 1202-03 (Miss.Ct.App. 1999). The alleged defamatory effect "must be clear and unmistakable from the words themselves and not the product of innuendo, speculation or conjecture." Id. at 1202 (citing, Ferguson, v. Watkins, 448 So.2d 271, 275 (Miss. 1984). The truth is an absolute defense to a defamation claim. Harris at 1202.
Bradford has not alleged any statements made by the City of Senatobia or their employees. He simply states that because he was arrested for DUI, people now believe he is an alcoholic. When asked in his deposition if anyone ever told him that he was an alcoholic, he answered "no." Further, since Bradford was later convicted of DUI, he has failed to allege a false statement. As a result, Bradford's claims of slander should be dismissed as to all Defendants.
Conclusion
Based on the above authorities and the submissions before the court, the court finds that dismissal with prejudice of Bradford's claims against all Defendants is appropriate on the § 1983 claims, constitutional claims under the Fifth, Sixth, Eighth and Fourteenth Amendments and state law claims of slander. No genuine issue of material fact exists and the Defendants are entitled to judgment as a matter of law. The remainder of Plaintiff's claims will be allowed to proceed to trial.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Pursuant to an opinion issued this day, it is hereby ORDERED that
• the Defendants' Motion for Partial Summary Judgment (docket entry #29) is GRANTED;
• the Plaintiff's 42 U.S.C. § 1983 claims are DISMISSED WITH PREJUDICE, as to all Defendants;
• the Plaintiff's claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution are DISMISSED WITH PREJUDICE, as to all Defendants;
• the Plaintiff's claims of slander are DISMISSED WITH PREJUDICE, as to all Defendants; and
• the remainder of Plaintiff's claims will be allowed to proceed to trial.
SO ORDERED.