Opinion
Civil Action No. 2:99cv158-D-B
August 8, 2000
OPINION
Before the court is the motion of Defendant John Pickett, III, former sheriff of Tunica County, Mississippi, for dismissal of the Plaintiff's claims against him in his individual capacity pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon due consideration, the court finds that the Defendant's motion should be denied.
Factual Background
Plaintiff Jerry Howard (Howard) filed the underlying Amended Complaint pursuant to 42 U.S.C. § 1983 against Defendants Tunica County, Mississippi, Tunica County Sheriff's Department, former sheriff John Picket III, individually and in his official capacity, former chief deputy Willie Starkes, and other unknown Defendants, alleging constitutional violations under the Fourth, Eighth, and Fourteenth Amendments, as well as various state law claims.
Howard contends that in April 1998, he was ordered by the Tunica County Justice Court to be released from jail. After departing the facility, while driving home, Howard was stopped and returned to custody by Defendant Starkes, without benefit of an arrest warrant or court order. In all, Plaintiff alleges that he was held in the Tunica County facility for approximately six months without being charged with an offense.
During his six-month confinement, Plaintiff was purportedly placed in a cell with violent offenders and endured physical attacks at the hands of the felons. As a result of repeated attacks, Plaintiff suffered various injuries requiring medical treatment. Howard submits that such treatment amounts to cruel and unusual punishment made possible by overcrowded prison cells, improper classification of prisoners, and the Defendants' failure to properly supervise, protect inmates, and adequately staff the jail.
The Plaintiff's Amended Complaint contains the following allegation relevant to his claims against Defendant Pickett:
VIII. Supervisory Liability
That the Defendant, Sheriff John Pickett, III, had actual knowledge that prisoners were being housed in dangerously overcrowded prison cells, that prisoners were being improperly classified, including placing misdemeanor criminals and/or suspects in dangerously overcrowded cells with convicted felons and felony suspects, some of which were convicted or charged with violent crimes, that prison guards were failing to properly supervise and protect prisoners, and that the prison was lacking sufficient staffing to protect inmates and pretrial detainees, but responded with deliberate indifference by allowing these acts and/or omissions to continue to exist. In addition, Sheriff Pickett was aware that Jerry Howard was being held without charges and without court approval.
Amended Complaint ¶ VIII.
As previously noted, the Plaintiff is alleging various constitutional violations under 42 U.S.C. § 1983, as well as state tort law claims. Pickett has moved for dismissal of the § 1983 claims on the ground of qualified immunity and the state law claims on the ground of sovereign immunity.
Discussion
In ruling on a motion to dismiss under Rule 12(b)(6), the court must take as true the well-pleaded allegations in the complaint and construe them in the light most favorable to the plaintiff. C.C. Port, Ltd. v. Davis-Penn Mtg. Co., 61 F.3d 288, 289 (5th Cir. 1995). "Taking the facts alleged in the complaint as true, if it appears certain that the plaintiff cannot prove any set of facts that would entitle it to the relief it seeks," dismissal is proper. Id. It must appear beyond doubt that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995).
Conversely, dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it appears an almost certainty that the facts alleged cannot be proved to support the claim, the complaint cannot be dismissed so long as it states a claim. Clark v. Amoco Prods. Co., 794 F.2d 967, 970 (5th Cir. 1986). If, however, a required element, a prerequisite to obtaining the requested relief, is lacking in the complaint, dismissal is proper. Id.
Under Rule 7.2(D) of the Uniform Local Rules of the United States District Courts for the Northern District of Mississippi and the Southern District of Mississippi, the Plaintiff's response to the Defendant's Motion to Dismiss was due within ten days after service of the movant's motion. The certificate of service attached to the Defendant's motion indicates that the pleading was mailed to Plaintiff's counsel on May 18, 2000. By Order dated June 6, 2000, the court granted Plaintiff an extension of time within which to file his response, giving the Plaintiff until July 5, 2000. Despite this extension and the passage of an additional month, the Plaintiff has yet to file any opposition to the motion. Local Rule 7.2(D) also provides that "[i]f a party fails to respond to any motion other than a motion for summary judgment within the time allotted, the court may take the motion as confessed." Therefore, the Defendant's motion may properly be granted as unopposed. In the interest of judicial economy, however, the court will address the merits of the Defendant's Motion to Dismiss.
Federal Claims and Qualified Immunity
Pickett moves to dismiss the § 1983 claims brought against him in his individual capacity on the basis of qualified immunity. State actors, including law enforcement officers and sheriffs such as the individual Defendant, are entitled to assert the defense of qualified immunity in a § 1983 suit for discretionary acts occurring in the course of their official duties. Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396, 403 (1982); Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir. 1986); Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986). Qualified immunity shields state actors from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984); Harlow, 457 U.S. at 818; White v. Walker, 950 F.2d 972, 975 (5th Cir. 1991); Morales v. Haynes, 890 F.2d 708, 710 (5th Cir. 1989).
To avoid dismissal, a plaintiff must plead specific facts, which if true, would defeat qualified immunity. Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 994-97 (5th Cir. 1995), cert. denied, 515 U.S. 1131, 115 S.Ct. 2555, 132 L.Ed.2d 809 (1995). Thus, in order to state a cause of action under § 1983, Howard must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged. See Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995). "It is not enough to allege that government officials with no direct contact with a plaintiff are responsible for acts of their subordinates." Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). Howard's Amended Complaint alleges that Pickett demonstrated deliberate indifference to inmate safety and security, failed to provide protection from violence by other inmates, and allowed the Plaintiff to remain in the jail for six months without charges and without court approval.
The Supreme Court has established that the Eighth Amendment imposes a duty on the part of prison officials to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "Pretrial detainees are entitled to at least as much protection as a convicted inmate." Perkins v. Grimes, 161 F.3d 1127, 1129-30 (8th Cir. 1998) (citing Thomas v. Booker, 784 F.2d 299 (8th Cir. 1986) (en banc)).
A prison official violates the Eighth Amendment only if he acts with deliberate indifference to a substantial risk of harm to the prisoner/detainee. Farmer, 511 U.S. at 834.
Upon due consideration, the court finds that Howard has alleged a violation of a clearly established constitutional right. Howard has also alleged facts that, if true, would defeat Pickett's entitlement to qualified immunity. The court, however, is of the opinion that the Defendant's motion should be denied without prejudice to his right to again raise the defense of qualified immunity in any future motion for summary judgment.
State Claims Against Pickett Individually
The Defendant also contends that he is individually entitled to immunity pursuant to Mississippi Code Annotated § 11-46-7(2) for any claims brought against him under state tort law. Section 11-46-7(2) provides in part:
. . . no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. For purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment . . . if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.
This statute, a provision of the Mississippi Tort Claims Act, endows "individual defendants with a rebuttable presumption that any act or omission of theirs which takes place within the time and at the place of their employment is within the `course and scope of [their] employment.'" Moore v. Carroll County, 960 F. Supp. 1084, 1088 (N.D.Miss. 1997). However, the statute also provides a limited spectrum of occasions which are considered outside an employee's course and scope of employment. Thus, when an employee's conduct constitutes 1) fraud, 2) malice, 3) libel, 4) slander, 5) defamation, or 6) any criminal offense, the employee sheds his cloak of immunity. Miss. Code Ann. § 11-46-7(2) (1999).
Clearly, the Plaintiff's allegations against Pickett involve acts and omissions that occurred within the course and scope of his duties as Sheriff of Tunica County, Mississippi. This does not end the court's inquiry, however. Howard alleges that Pickett was deliberately indifferent to inmate safety and security, failed to provide protection from violence by other jail inmates, and allowed Howard to be detained for six months without being charged with an offense and without court approval.
As noted above, Pickett may only escape personal liability if his actions were within the course and scope of his employment and did not constitute "fraud, malice, libel, slander, defamation, or any criminal offense." Miss. Code Ann. § 11-46-7(2). While the Plaintiff's Amended Complaint fails to state any set of facts which could be read to allege that Pickett committed fraud, libel, slander, or defamation, the court is of the opinion that the pleading could be read to encompass an allegation that Pickett acted with malice.
The Mississippi Supreme Court defines malice as an objective state of mind which may be inferred if the plaintiff demonstrates that the defendant acted with ruthless or reckless disregard for the plaintiff's rights. Nassar v. Concordia Rod Gun Club, Inc., 682 So.2d 1035, 1042 (Miss. 1996); Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss. 1996); Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 73 (Miss. 1996). Howard's Complaint contains claims addressing whether the Defendant's conduct was so reckless and/or egregious as to rise to the level of malice, effectively preventing Pickett from asserting the immunity defense. The court is of the opinion that, if the Plaintiff proved the above allegations, a reasonable juror could find that Pickett acted with reckless disregard for the Plaintiff's rights. Thus, the court is unable to hold, after reading the Plaintiff's Amended Complaint, that Howard has stated no set of facts under which he may recover against Pickett individually. As such, Howard's state law claims against Pickett individually may not be dismissed at this time.
C. Vicarious Liability of Pickett
Although not specifically plead by the Plaintiff, the Defendant argues that he may not be held vicariously liable for the acts or omissions of his subordinates in a § 1983 cause of action.
Mississippi Code Annotated § 19-25-19 provides that "[a]ll sheriffs shall be liable for the acts of their deputies. . . ." As suggested by the plain language of the statute, the liability imposed on sheriffs pursuant to § 19-25-19 is derivative of that imposed on their employees, e.g., deputies. Barrett v. Miller, 599 So.2d 559, 566 (Miss. 1992) (discussing respondeat superior and vicarious liability under § 19-25-19). Thus, if a deputy escapes liability pursuant to his statutory immunity, no liability exists to be derivatively placed upon the shoulders of his sheriff.
Pickett contends that he may not be individually liable because of Mississippi's grant of immunity for the acts of government employees in the course and scope of their employment. The Defendant's apparent reliance on Mississippi Code Annotated § 11-46-7(2) is misplaced. Pickett may be made liable for the actions of his deputies through § 19-25-19 and such liability has heretofore been determined to be personal in nature. Dennis v. Warren, 779 F.2d 245, 248 (5th Cir. 1985) (Mississippi law provides for sheriff's liability under section 19-25-19 to be personal in nature); Hatley v. Lewis, 706 F. Supp. 487, 492 (S.D.Miss. 1989) (sheriff's liability under statute is personal in nature).
This court has not addressed whether Deputy Starkes or any other deputy under Pickett's direction may be held liable under Howard's state law claims. Thus, the court cannot say that the Defendant has demonstrated that the Plaintiff can prove no set of facts under which he could recover against Pickett in his individual capacity for the acts of his subordinates. Pickett may have liability for his own actions, as well as liability for the actions of Starkes or other deputies if those persons cannot escape liability pursuant to their statutory immunity. Accordingly, to the extent Howard is alleging state law claims against Pickett under a theory of vicarious liability for the acts of his deputies, those claims may not be dismissed at this time.
Based on the above principles, the court concludes that the Defendant's motion to dismiss should be denied. A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
the Defendant, John Pickett III's motion to dismiss is DENIED; and
the Defendant's claim of qualified immunity is DENIED WITHOUT PREJUDICE.
All materials considered by the court in ruling on the Defendant's motion are hereby incorporated into and made a part of the record in this cause.