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Craven v. Perry County

United States District Court, Fifth Circuit

August 19, 2013

HERSHALL CRAVEN, Beneficiary of Michael Craven; SHANE CRAVEN, Beneficiary of Michael Craven; BRIAN CRAVEN, Beneficiary of Michael Craven; and ROXANNE CRAVEN, Beneficiary of Michael Craven, Plaintiffs,
PERRY COUNTY, a political subdivision; JEREMY MCSWAIN, Individually; and JIMMY DALE SMITH, Individually and in his official capacity as Sheriff of Perry County, Defendants.


KEITH STARRETT, District Judge.

This matter is before the Court on the Motion for Summary Judgment [52] of the Defendants Jeremy McSwain and Jimmy Dale Smith. Having considered the parties' submissions, the record and the applicable law, the Court finds that the motion should be granted.


This is an action for wrongful death brought by the siblings of Michael Craven against Jeremy McSwain (a deputy sheriff with the Perry County Sheriff's Department), Jimmy Dale Smith (the Sheriff of Perry County), and Perry County, Mississippi. At approximately 7:00 p.m. on February 8, 2011, Michael Craven arrived at the Crossroad Grocery Quick Shop (the "Crossroad") to purchase beer. ( See Compl. [1] at p. 4.) Joanna Hamby, an acquaintance of Mr. Craven, was hanging out at the Crossroad at that time. ( See Hamby Dep. [52-8] 12:7-13, 21:20-22:7.) Ms. Hamby observed Mr. Craven purchase two cases of beer. ( See Hamby Dep. [52-8] 27:13-16.) She also noticed that Mr. Craven walked "really slow" on the way back to his truck, that he "held onto the truck when he got in" it, and that "he was leaned over" while backing up his truck. (Hamby Dep. [52-8] 36:19-25.) Before exiting the Crossroad parking lot, Mr. Craven's truck collided with another vehicle. ( See Hamby Dep. [52-8] 31:8-32:20.) This collision did not appear to result in any vehicular damage and neither Mr. Craven nor the other driver left their respective vehicles. The other driver "stuck his head out and told him [Mr. Craven] it was okay." (Hamby Dep. [52-8] 32:16-20.)

Ms. Hamby was in her car in the Crossroad parking lot when she saw Mr. Craven pull out and take a left onto Morriston Road. She observed Mr. Craven's truck enter the correct lane of traffic, but pull so far to the right that "half of his truck was in the ditch on the right side." (Hamby Dep. [52-8] 33:6-9.) Ms. Hamby followed Mr. Craven in her car as he drove down Morriston Road with half of his truck in the ditch for approximately three miles. ( See Hamby Dep. [52-8] 34:10-35:16.) Eventually, Mr. Craven's truck became inoperable due to front-end damage and at least one of its tires blowing out. Ms. Hamby had a cell phone, but did not call anyone for assistance while she followed Mr. Craven. ( See Hamby Dep. [52-8] 36:9-17.)

After Mr. Craven's truck came to a stop, Ms. Hamby parked her car in the next driveway and went back to check on him. Ms. Hamby provided the following testimony at deposition regarding her subsequent interaction with Mr. Craven:

Walking up to the window and asking him if he was okay. And he told me that his truck wouldn't go. And I told him because he blew out a tire, and we just talked for a few minutes. And he told me that he had had a heart attack or stroke before. And I basically just talked to him and asked him if I could call and get him a ride. And I called some lady, called his sister or something. And she never answered the phone. So he asked me if I could give him a ride. And I had kids in the back seat. So I told him I couldn't. And I tried his sister back, or daughter, a few times, but never got ahold of anybody.

(Hamby Dep. [52-8] 38:1-12.) Ms. Hamby also testified that Mr. Craven kept telling her "that he had had a stroke or a heart attack, like, six or nine months before." (Hamby Dep. [52-8] 46:19-47:1.) Ms. Hamby did not think that Mr. Craven told her he was suffering from a heart attack or stroke at that time because she "would have called 911 if he had said that." (Hamby Dep. [52-8] 46:19-47:6.) Mr. Craven never asked Ms. Hamby to call an ambulance or the police. ( See Hamby Dep. [52-8] 39:3-6, 40:19-25, 54:9-16.) Mr. Craven appeared "sick" in that he was "leaned over" and "real pale". (Hamby Dep. [52-8] 42:17-43:2.) Ms. Hamby did not observe any open container of beer in the front of Mr. Craven's truck or smell alcohol on him. ( See Hamby Dep. [52-8] 42:1-43:4.) Approximately fifteen to twenty minutes after Ms. Hamby pulled over to check on Mr. Craven, Deputy McSwain arrived on the scene. At no time prior to Deputy McSwain's arrival (or at any other time on February 8) did Ms. Hamby call 911, an ambulance or the Sheriff. (Hamby Dep. [52-8] 40:13-14, 54:9-16, 74:4-9.)

The Perry County Emergency Dispatch received a call from an unidentified individual at approximately 7:34 p.m. on February 8, indicating that a man had just left the Crossroad, hit a car and was in a roadside ditch. Deputy McSwain was dispatched "to a wreck, possible drunk driver". (McSwain Dep. [52-1] 11:6-7.) Upon his arrival at the accident scene, Deputy McSwain observed Mr. Craven's truck parked partially off the roadway. Deputy McSwain then approached the truck and saw Mr. Craven sitting in the driver's seat and Ms. Hamby standing outside the vehicle.

Deputy McSwain testified at deposition to the following particulars regarding his subsequent interactions with Ms. Hamby and Mr. Craven. Ms. Hamby told Deputy McSwain that Mr. Craven bought some beer at the Crossroad and bumped into a vehicle while leaving the store. Ms. Hamby also said that Mr. Craven had "a stroke in the past about a year ago." (McSwain Dep. [52-1] 11:21-12:8.) Deputy McSwain smelled alcohol on Mr. Craven's breath and observed one open container of beer in the cab of the truck. ( See McSwain Dep. [52-1] 12:9-15, 35:14-36:5.) Deputy McSwain asked Mr. Craven if he had been drinking and Mr. Craven said, "Yeah, I've been drinking all day." (McSwain Dep. [52-1] 12:10-15.) Deputy McSwain also asked Mr. Craven if he was sick and if he needed medical attention. Mr. Craven's response was, "No, " he just wanted "to go home." (McSwain Dep. [52-1] 13:9-23.) Deputy McSwain requested that Mr. Craven exit the truck, helped Mr. Craven get to the back of the truck, [1] and asked Mr. Craven to blow on a portable intoxilyzer. Mr. Craven "blew over the limit." (McSwain Dep. [52-1] 12:16-21.)

The following portion of Ms. Hamby's deposition somewhat conflicts with the preceding testimony of Deputy McSwain:

Q. So it's your testimony that Mr. Craven told Deputy McSwain he had not been drinking alcohol?
A. I'm pretty sure that's what he said. He asked him if he had been drinking, and I'm pretty sure he told him no. And then he had - the cop talked to me, and I told him that he had had a heart attack or something before, and I told him how he was leaning over and I thought that's what was wrong, he was having a stroke or something. And I can't remember what all they talked about, but he talked to me and him.

(Hamby Dep. [52-8] 44:3-12.) Ms. Hamby also stated that she told Deputy McSwain that Mr. Craven "had a stroke in the past, and... [she] believed he might be having another one." (Hamby Dep. [52-8] 67:1-22; Hamby Aff. [55-7] at p. 2.) According to Ms. Hamby, Deputy McSwain's response was, "no, he's just drunk and we're going to arrest him for DUI." (Hamby Aff. [55-7] at p. 2.) Ms. Hamby did not remember if Mr. Craven "did a breathalyzer or not." (Hamby Dep. [52-8] 45:16-25.)

Deputy McSwain testified that he called Sheriff Smith for input after Mr. Craven blew over the limit on the portable intoxilyzer. ( See McSwain Dep. [52-1] 13:9-23.) Sheriff Smith provided the following testimony at deposition regarding this telephone communication:

Basically he [Deputy McSwain] related to me that the gentleman [Mr. Craven] had been drinking, and he had left the road and had blown out the right front tire, I believe it was, of the vehicle. He informed me that he had had a stroke a year earlier. I asked him did he need medical help now. He said, no, the man said he didn't need any medical help. I said, Well, if he's been drinking, carry him on down to the jail, run him on the Intoxilyzer, and then call me back and we'll - you know, if it goes DUI we'll do what we've got to do.

(Smith Dep. [52-10] 7:11-21.) Deputy McSwain complied with the Sheriff's directives and transported Mr. Craven to the Perry County Jail (the "Jail") in his patrol car.

On the way to the Jail, Deputy McSwain called another Perry County Deputy, Billy Anglin, to come in and run the Intoxilyzer 8000 machine. ( See McSwain Dep. [52-1] 14:10-12.) Deputy McSwain was certified to operate the machine, but he had not yet received his operator's card. ( See Anglin Dep. [52-11] 16:14-23.) Also during the ride to the Jail, Deputy McSwain asked Mr. Craven if he was okay and if he needed medical attention. Mr. Craven stated that he was okay and that he just wanted to go home. ( See McSwain Dep. [52-1] 14:18-15:1.)

Mr. Craven was in the booking room when Deputy Anglin arrived at the Jail. While Deputy Anglin waited for the Intoxilyzer 8000 to start up, he asked Mr. Craven whether he needed any medical attention. Mr. Craven replied, "No. I just had a little bit too much to drink." (Anglin Dep. [52-11] 9:4-24.) After Deputy Anglin advised Mr. Craven that his picture would be taken during booking, Mr. Craven said, "Well, you're going to have to help me up because I've had a stroke previous to - a year ago...." (Anglin Dep. [52-11] 10:9-15.) Deputy Anglin then asked Mr. Craven if he was taking any medication. Mr. Craven said that he was and that the medication was at his home. Deputy Anglin asked Mr. Craven if there was anyone that could bring him the medication, and Mr. Craven replied, "No, there ain't nobody around to bring it to me." (Anglin Dep. [52-11] 10:16-23.) Deputy Anglin subsequently told Deputy McSwain to call Sheriff Smith and see if Mr. Craven could be released on his own recognizance in the event he failed the Intoxilyzer 8000 test, so that he could have access to his medication. ( See Anglin Dep. [52-11] 10:24-11:3.) Mr. Craven registered a.08% test result ...

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