Though the plaintiff alleges malice as an exception to these statutory immunities, these allegations are merely conclusory which is insufficient to defeat a claim of ยง 11-46-7 immunity. Smith v. Brookhaven Police Department 914 So.2d 180, 185 (Miss. Ct. App. 2005). Finally, since all of the plaintiff's claims against Defendants Blaylock and Walker in their individual capacities should be dismissed, the plaintiff's punitive damages claim should be likewise dismissed.
See Stone v. Damon, 2006 WL 3147728, at *6 (N.D. Miss. Nov. 2, 2006); Moore v. Carroll County, 960 F. Supp. 1064, 1092 (N.D. Miss. 1997); Titus v. Williams, 844 So. 2d 459 (Miss. 2003); Smith v. Brookhaven Police Dep't, 914 So. 2d 180 (Miss.Ct.App. 2005). As previously mentioned, however, the underlying facts upon which Shelton's criminal charges hinge are disputed. Inasmuch as there are a genuine issues of material fact concerning whether the plaintiff was engaged in criminal activity which caused the officers to allegedly assault him, the defendant's motion for summary judgment regarding Shelton's assault claim must be denied.
However, the Mississippi Court of Appeals has found that it is not inappropriate to grant summary judgment when a defendant alleges protection under the Mississippi Tort Claims Act even though the accused is found not guilty as charged. In Smith v. Brookhaven Police Dept., 914 So.2d 180 (Miss.Ct.App. 2005), Smith was ticketed for reckless driving, failure to yield to the blue lights, and speeding. He contested the tickets in municipal court and was found not guilty on all three charges.