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Felter v. Brown

United States District Court, Fifth Circuit

October 2, 2013



DAVID BRAMLETTE, District Judge.

This cause is before the Court on defendant Darryl Longino's Motion for Summary Judgment (docket entry 26). Having carefully considered the motion, to which no response has been filed by the plaintiffs, and the applicable law, as well as the record in this case, the Court finds as follows:

The Court previously raised, sua sponte, defendant Longino's assertion of qualified immunity as an affirmative defense in his Answer. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). A stay order was entered in this case, allowing discovery to proceed solely on the issue of qualified immunity.

Following the completion of discovery, the Court ordered the plaintiffs to file a reply to defendant Longino's assertion of a qualified immunity defense, see Schultea v. Wood , 47 F.3d 1427, 1433 (5th Cir. 1995). The plaintiffs were cautioned that their reply must contain allegations of fact focusing on specific conduct of the defendant that they claim caused the alleged injury, and that they must support their claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendant's conduct at the time of the alleged acts. See id. at 1434. When the plaintiffs failed to reply, the Court ordered the plaintiffs to show cause why Longino should not be dismissed on immunity grounds, and warned them that their failure to reply could result in dismissal of defendant Longino. The plaintiffs also failed to respond to the show cause order, whereupon the Court granted Longino leave to renew his motion for qualified immunity. Longino filed a motion for summary judgment based on qualified immunity, and the plaintiffs again failed to respond.

The party seeking summary judgment bears the burden of "informing the district court of the basis for its motion, and identifying those portions of [the record evidence] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. "A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Paz, 555 F.3d at 391 (quoting Crawford v. Formosa Plastics Corp. , 234 F.3d 899, 902 (5th Cir. 2000)).

Once the moving party meets its burden, the nonmoving party must then "come forward with specific facts showing a genuine factual issue for trial." Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist. , 635 F.3d 685, 690 (5th Cir. 2011). The nonmoving party cannot rely on metaphysical doubt, conclusive allegations, or unsubstantiated assertions, but instead must show that there is an actual controversy warranting trial. Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994)(internal citations omitted). As the 2010 amendments to Rule 56 make clear, a party asserting that a fact "is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials...." Fed.R.Civ.P. 56(c)(1)(A).

The plaintiffs have failed to respond to the defendants' motion for summary judgment. The local rules of this Court require a response to a motion within fourteen days, L.U.C.R. 7(b)(4), which is not optional. Blackard v. City of Southaven, 2012 WL 827192, *3 (N.D. Miss. March 9, 2012). The plaintiffs, who are represented by counsel, neither responded to the motion nor moved for additional time to respond.

The Court notes that it may not grant summary judgment by default, i.e., merely because there is no opposition to the motion. Hetzel v. Bethlehem Steel Corp. , 50 F.3d 360, 362 n.3 (5th Cir. 1995). However, the Court may accept as undisputed the movant's version of the facts and grant the motion where the movant has made a prima facie showing of its entitlement to summary judgment. Eversley v. Mbank Dallas , 843 F.2d 172, 174 (5th Cir. 1988); Romberger v. United Transp. Union , 930 F.Supp. 1131, 1132 (N.D. Miss. 1996). In other words, the defendant must still meet his burden of establishing that no genuine issue of material fact exists concerning the plaintiffs' claims and that he is entitled to judgment as a matter of law.

According to the plaintiffs' Complaint, on September 19, 2009, "Erika Felter called the Adams County Sheriff's Department for assistance in euthanizing and disposing of a large, badly injured whitetail deer" near a roadway in Adams County, Mississippi. Complaint, ¶ 8. The Complaint further alleges that defendant Longino arrived on the scene and attempted to kill the deer with his firearm, but neither of two shots to the animal's head was lethal. Id. at ¶ 9. Plaintiff Erika Felter continued to implore Longino to kill the animal, or allow her husband or brother to do so, but Longino refused. Id. at ¶¶ 9-10. Then, "[p]recipitously and without any justification, Deputy Longino handcuffed Erika Felter and took her against her will and without her consent to the Adams County Jail where she was incarcerated and charged with failure to obey an officer.' The charge was eventually dismissed." Id. at ¶ 11.

In his memorandum in support of the motion for summary judgment, Longino states that he was called to the scene by a dispatcher who warned him "that the call was based on a citizen's complaint and that the citizen that called was excited and upset about the matter." Memorandum, p. 2. The dispatcher also warned Longino that the other deputies were all on call and that he would not have any backup. Id . When Longino arrived on the scene, "Mrs. Felter was clearly upset about the situation and was adamant that Deputy Longino take action immediately." Id. at p. 3. While Longino was on his phone with dispatch, "Mrs. Felter repeatedly ordered Deputy Longino to get off the phone and demanded he take immediate action." Id . When Longino fired his first non-lethal shot, "Mrs. Felter demanded Longino shoot the deer again and continued to harass him until he fired again." Id . After the second shot, which was also non-lethal, "Felter became very agitated and upset and badgered Longino to shoot the animal again." Id.

Longino tried to calm Mrs. Felter down but was unable to do so. Id. at pp. 3-4. She moved toward him, demanding that he shoot the deer. Id. at p. 4. At that point, Mrs. Felter's brother arrived at the scene with a high powered rifle. Longino saw the brother, Michael Bumgarner, approach with a.30-06 rifle. "While Longino was dealing with Felter, who continued her hysterics, he heard someone cycle a round into the high-powered rifle and saw either Felter's brother or husband approach the animal and aim the rifle at it." Id . Longino immediately told the male not to shoot the animal because the high-powered rifle would not be safe at that range. Id . The male with the rifle obeyed Deputy Longino's command not to shoot. Id.

"At this point, given that Deputy Longino was outnumbered, one of the citizens had a high powered rifle in his possession, and Mrs. Felter seemed out of control, Longino became very concerned for his safety. Deputy Longino believed that Mrs. Felter was becoming a problem and a threat and, as such, he advised her to leave the scene." Id . Bumgarner's deposition reveals that he too recognized that his sister was out of control, and he told his brother-in-law to get her into the car. Id., citing Bumgarner Depo. at 32-33. Bumgarner also stated that he believed the situation was going to "break [his sister] down" and he told her to get into the car to "separate" herself from the situation. Id., citing Bumgarner Depo. at 33-36. Mrs. Felter refused to leave the scene or to obey Longino. Id. at p. 5. Mrs. Felter told Longino he would have to arrest her, then turned around and placed her hands behind her back, at which point Longino handcuffed her and arrested her for failure to obey his order to leave the scene. Id . Deputy Longino then placed Mrs. Felter in his vehicle and took her to the Adams County Jail for processing. Id . Neither Mrs. Felter's brother nor her husband were arrested. Id.

Plaintiffs suing a defendant in his individual capacity pursuant to Section 1983 must allege specific conduct giving rise to the constitutional violation. Oliver v. Scott , 276 F.3d 736, 740 (5th Cir. 2002). When a defendant invokes qualified immunity, the burden is on the plaintiffs to demonstrate the inapplicability of the defense. McClendon v. City of Columbia , 305 F.3d 314, 323 (5th Cir. 2002).

The plaintiffs' Complaint asserts that "[t]he arrest and imprisonment of Erika Felter was illegal, wrongful and false for the reason that the arrest was not based upon a valid warrant and was without probable cause, " Complaint, ¶ 12, and that the "false or wrongful arrest and imprisonment... deprived Erika Felter of her rights, privileges and immunities secured by the United States Constitution...." Complaint, ¶ 17. Specifically, the plaintiffs refer to "rights... secure[d] to the Plaintiff Erika Felter by the provisions of unreasonable seizure of the person and of the due process ...

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