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Cosey v. Kingdom

United States District Court, Fifth Circuit

October 30, 2013

ERICA COSEY and BEULAH HOSKINS, Plaintiffs,
v.
MICHAEL KINGDOM, in his individual capacity, and THE CITY OF HOLLANDALE, MISSISSIPPI, Defendants.

MEMORANDUM OPINION

NEAL B. BIGGERS, Jr., District Judge.

Presently before the court is Defendant City of Hollandale, Mississippi's motion for summary judgment. Upon due consideration of the parties' filings and supporting and opposing authority, the court is ready to rule.

Michael Kingdom applied for employment with the Hollandale Police Department in 2010. At a meeting of the City of Hollandale Board of Alderman, at which the application of Kingdom was under consideration, the city attorney informed the board members that Kingdom had been accused of sexual harassment in his previous employment, but that the case settled. The City of Hollandale hired Kingdom as a police officer in August 2010.

In November 2010, police dispatcher Tana Nelson complained that Kingdom touched her inappropriately.[1] The police chief reported the allegation to the mayor and board of aldermen. The board asked for a statement from both Nelson and Kingdom and held a "lengthy discussion" according to board minutes. The aldermen do not specifically recall what was discussed, but at the completion of the discussion, no board action was taken. The board later decided to reinstate Kingdom since the evidence amassed were conflicting statements.

Erica Cosey alleges that on numerous occasions Kingdom verbally sexually harassed her. On February 18, 2011, Kingdom stopped Cosey for an alleged speeding violation. As Cosey reached for her license and registration, Kingdom rubbed her lower back and touched her buttocks. Cosey reported the incident the Mayor of Hollandale, Melvin Willis, and to her uncle, City of Hollandale Alderman and Police Commissioner Carl Dorsey. Cosey further filed a written complaint with the police department and appeared before the board of aldermen.

The board voted to allow the Washington County Sheriff Department and the Mississippi Bureau of Investigations to independently investigate the allegation, but when both declined, the board conducted another internal investigation. Again, relying on conflicting statements, the board reinstated Kingdom.

In early 2012, Ciero Paige, an inmate at the local jail, gave a written complaint against Kingdom to Police Chief James Hammer, who showed the allegation to Alderwoman and Police Commissioner Janice Ford.[2] Paige then complained to Ford in person that Kingdom had made inappropriate comments to her during confinement. Ford did not present the allegations to the rest of the board.

Beulah Hoskins alleges that between 2007 and 2011, Kingdom often drove near Hoskins as she rode her bicycle with her children. Hoskins states that Kingdom verbally sexually harassed her, including offering money in exchange for sexual intercourse. Hoskins reported Kingdom's behavior to a police officer and to the police dispatcher. In January 2012, Hoskins alleges that Kingdom approached her in a nightclub while he was on duty and inappropriately touched her buttocks. Hoskins submitted a written report to the Hollandale Chief of Police.

Plaintiffs initiated this action alleging that the City of Hollandale violated their Fourth Amendment rights, Equal Protection rights under the Fourteenth Amendment, substantive due process rights and exhibited deliberate indifference of sexual harassment by Kingdom pursuant to 42 U.S.C. § 1983 through its inaction or failure to supervise.[3] The City of Hollandale subsequently moved for summary judgment.[4]

Standard of Review

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In reviewing the evidence, this court must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000). In so doing, the court must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151. A trial court may deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Anderson, 477 U.S. at 255.

Discussion

The City of Hollandale concedes that Plaintiffs have raised a factual question as to whether Kingdom's conduct violated Equal Protection, but maintain that all claims against the municipality fail based on Plaintiffs' inability to point to an established municipal policy or custom.

"It is well-established that a city is not liable under § 1983 on the theory of respondeat superior." Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978)). Instead, plaintiffs may prove municipal liability by showing that "(1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right." Id. (citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). An official policy can take various forms and may "arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy.'" Id. (quoting Piotrowski, 237 F.3d at 578). A policy or custom is official "when it results from the decision ...


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