United States District Court, S.D. Mississippi, Southern Division
DR. DAVID BRUCE ALLEN, Plaintiff,
JACKSON COUNTY, MISSISSIPPI, by and through its Board of Supervisors, MIKE BYRD, Sheriff, in his individual capacity, and UNKNOWN JOHN AND JANE DOES A-Z, in their official and individual capacities, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION  FOR RECONSIDERATION, DENYING DEFENDANT'S MOTION  TO STRIKE PLAINTIFF'S MOTION FOR RECONSIDERATION, AND GRANTING DEFENDANT'S MOTION  FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT are three Motions: (1) a Motion  for Summary Judgment Based on Qualified Immunity, filed by Defendant Mike Byrd, the Sheriff of Jackson County, Mississippi; (2) Plaintiff Dr. David Bruce Allen's Motion  for Reconsideration of Denial of Extension of Time to File a Response to Sheriff Byrd's Motion for Summary Judgment; and (3) Sheriff Byrd's Motion  to Strike, or in the Alternative, Response in Opposition to Plaintiff's Motion for Reconsideration. Having considered the parties' Motions, their respective opposition and rebuttal briefs, the record, and relevant legal authorities, the Court finds that Dr. Allen's Motion  for Reconsideration should be denied, Sheriff Byrd's Motion  to Strike should be denied, and Sheriff Byrd's Motion for Summary Judgment Based on Qualified Immunity should be granted. There is no excusable neglect for Dr. Allen's three-and-a-half-month-late Response [34-2] to Sheriff Byrd's Motion for Summary Judgment. Because the Response does not alter the Court's conclusion, the Court has nevertheless considered the Response.
Dr. David Bruce Allen ("Dr. Allen") was imprisoned for fourteen months while awaiting trial on six State criminal charges. At his February 2011 criminal trial, four counts were dismissed on directed verdict, and the jury could not reach a unanimous verdict on the remaining two counts. On February 22, 2012, Dr. Allen commenced this civil action against Jackson County, Sheriff Mike Byrd in his individual capacity, and numerous "unknown John and Jane Does" in their official and individual capacities, contending that he was unlawfully arrested and imprisoned. Pl.'s Compl. . In his Amended Complaint  filed on March 13, 2013, Dr. Allen asserts claims pursuant to 42 U.S.C. §§ 1982, 1983, 1985, 1986, and state law. Pl.'s Am. Compl.  at 1-2, 9-10. Dr. Allen seeks $551, 000, 000 in damages in addition to attorneys' fees and expenses. Id. at 11. Liberally construing Dr. Allen's rather unclear pleadings, he asserts a Fourth Amendment false arrest claim and Fourteenth Amendment due process claim against Sheriff Byrd.
Dr. Allen's constitutional claims against Sheriff Byrd in his individual capacity are the subject of the instant Motion  for Summary Judgment Based on Qualified Immunity. The only discovery that has occurred so far in this case pertains to the issue of qualified immunity.
B. Factual Background
For fourteen years, Dr. Allen was a cardiac surgeon practicing and residing in Jackson County. Dep. of David Allen [28-2] at 10, 64. Dr. Allen moved to California in 2008 and in 2009 began a medical cannabis evaluation practice in California. Id. at 7-8, 14. Dr. Allen owns a forty-eight acre piece of property in Jackson County, which is referred to as "Blue Hole." Id. at 14.
On February 19, 2009, shortly after Dr. Allen moved to California, agents of the Narcotics Task Force of Jackson County executed a search warrant on Blue Hole searching for evidence of marijuana cultivation. Pl.'s Resp. [34-2] at 10; Dep. of David Allen [28-2] at 87. Dr. Allen was in California at the time, but his sister Gail Lee and brother-in-law Rodney Lee resided at Blue Hole and were present during execution of the search warrant. Am. Compl.  at 4. Dr. Allen telephoned Blue Hole during the search. Officer Jackie Trussell, who led the Task Force's criminal investigation of Dr. Allen, "answered the phone and said he was serving a search warrant for a marijuana manufacturing facility." Dep. of David Allen [28-2] at 87. Dr. Allen responded, "well you didn't find any plants." Id. Beyond this information, the Court has not been apprised of what was or was not found during execution of the search warrant.
Dr. Allen also spoke on the telephone to Lieutenant Curtis Spiers, the Task Force's commander, during execution of the search warrant. Both Officer Trussell and Lieutenant Spiers advised Dr. Allen that he should return to Mississippi to face charges or otherwise face extradition. Pl.'s Resp. [34-2] at 18. According to Dr. Allen, Lieutenant Spiers told him that he "would not like extradition." Id. Lieutenant Spiers testified at his deposition that he explained to Dr. Allen that "if he would come turn himself in, it would be much better than him getting caught out there and getting locked up in an Alameda County jail and then us having to extradite him across the country." Dep. of Curtis Spiers [34-8] at 49.
Dr. Allen testified at his deposition that his sister Gail Lee told him that the Narcotics Task Force agents acted like "hoodlums" during execution of the search warrant, "playing pool, and ping pong, and foosball in [his] home, " burning a "bunch" of property in his front yard, roughing up Rodney Lee, tasing the dog, whistling tunes "in a manner of intimidation, " and joking and laughing about how they were going to seize Blue Hole and use it as their training facility and a vacation spot. Dep. of David Allen [28-2] at 34-36, 88. Because Dr. Allen was in California at the time, he has no personal knowledge that such behavior occurred, and he has submitted no testimony from anyone who was present during execution of the search warrant.
Dr. Allen deposed two witnesses during discovery in this matter, Sheriff Byrd and Lieutenant Spiers. Neither of these individuals were present during execution of the search warrant. Dep. of Mike Byrd [34-3] at 12; Dep. of Curtis Spiers [34-8] at 12. The record contains no affidavits or testimony from Gail Lee, Rodney Lee, or Officer Trussell. The record furthermore contains no portion of the transcript from Dr. Allen's criminal trial. Lieutenant Spiers, however, did testify at his deposition that he learned after execution of the search warrant that "a cabinet that was used as part of the grow room... was destroyed" by the Narcotics Task Force. Dep. of Curtis Spiers [34-8] at 12. Sheriff Byrd also acknowledged during his deposition that he heard officers make "cop jokes" about using Blue Hole for police training. Dep. of Mike Byrd [34-3] at 27-28, 31.
At some point, Gail and Rodney Lee were arrested. The record is unclear as to when this occurred and what charges were asserted against the Lees. Rodney Lee may have been arrested at the time of the raid. Dep. of Curtis Spiers [34-8] at 18. Gail Lee was arrested at least one day after the raid, or as late as March 13, 2009. Am. Compl.  at 5; Dep. of David Allen [28-2] at 21-22, 36, 89; Dep. of Curtis Spiers [34-8] at 18, 23-24. Dr. Allen contends that Gail and Rodney Lee were threatened with 30 years in prison, placed in solitary confinement for five days in stark and unsanitary conditions, and "advised that their only hope was to give testimony against Dr. Allen." Am. Compl.  at 5. Dr. Allen alleges that
[e]ventually, after many days of torture, [Gail Lee] had a mental break down and started screaming that she would say whatever they wanted. She did. Further, her husband... agreed to do the same. In exchange for their statement, the threat to incarcerate them for 30 years was dropped and all charges against them were dropped.
Id. at 5-6.
Lieutenant Spiers acknowledged that the charges against Gail Lee were dropped as a result of her cooperation with the Narcotics Task Force's investigation and the District Attorney. Dep. of Curtis Spiers [34-8] at 24. Dr. Allen has not, however, offered evidence in support of his conclusory allegation that the Lees' testimony was secured through unlawful coercion, threats, and torture. It is undisputed that the Lees testified against Dr. Allen at his criminal trial. Mot. for Entry of Nolle Prosequi [34-6] at 2. There is no evidence that Dr. Allen challenged the admissibility of their testimony.
On February 27, 2009, a judge with the County Court of Jackson County issued arrest warrants for Dr. Allen on two charges: felony cultivation of marijuana and transfer of hashish. Arrest Warrants [28-2]. The Arrest Warrants were supported by Affidavits of Officer Trussell in which he generally averred that Dr. Allen had committed the charges alleged. Id. After learning of the arrest warrants, Dr. Allen turned himself in to authorities in California on March 17, 2009. Dep. of David Allen [28-2] at 21-22.
On March 19, 2009, an article was published in the media regarding Dr. Allen's arrest. A photograph of numerous full-grown marijuana plants appeared with the article and was captioned, "[m]arijuana found at residence." Article [34-4, 34-5]. "No actual grown marijuana" was found at Blue Hole. Motion for Entry of Nolle Prosequi [34-6] at 2. It is undisputed that Lieutenant Spiers supplied the media with the photograph. Dep. of Curtis Spiers [34-8] at 28. Dr. Allen characterizes Lieutenant Spiers' act of doing so as fabrication of evidence. Pl.'s Resp. [34-2] at 10-11. Lieutenant Spiers testified that he was contacted by the media and asked for photographs from the raid on Blue Hole. Dep. of Curtis Spiers [34-8] at 28. According to Lieutenant Spiers, "I had no photographs because they were currently on the scene, and was asked if I could give them some generic photos or generic photo of marijuana growing, which in turn, I did.... I never represented [it] as being evidence from Dr. Allen's case." Id.
Dr. Allen was extradited from California to Mississippi by a private extradition service, Atlantic Extradition Service. Dep. of David Allen [28-2] at 22, 38; Pl.'s Resp. [34-2] at 12, 18-19. No Jackson County law enforcement officers were present during the extradition. Dep. of David Allen [28-2] at 10, 39-40. Dr. Allen alleges that during extradition, he was "made to sit in the cargo area behind the rear seat without a seatbelt" and "in chains for five days straight." Dep. of David Allen [28-2] at 38-39. He alleges that he was "stuffed in between the other prisoners, until he was placed in the rear of the vehicle, on top of a plastic box, in a miserable position." Pl.'s Resp. [34-2] at 18. Dr. Allen believes that he was treated inhumanely during extradition because Officer Trussell was friends with the owner of Atlantic Extradition Service and Sheriff Byrd and his deputies "had influence on that trip." Id. at 38-40. Dr. Allen contends that Lieutenant Spier's statement to him that he "would not like extradition" supports this allegation. Id. at 40. Dr. Allen testified at his deposition, however, that his only support for the allegation is that "[t]he evidence was, I was treated badly and I was told before it happened, you are not going to like this. There was a threat." Id. Dr. Allen's subjective belief is not competent summary judgment evidence supporting the allegation that Sheriff Byrd or any other Jackson County law enforcement official "influenced" the way Dr. Allen was treated during extradition.
Dr. Allen was booked and arrested in Jackson County on April 7, 2009. Dep. of David Allen [28-2] at 54. He posted bond the same day. Id. While on bond, Dr. Allen, by his own admission, approached his sister Gail Lee, gave her $200, and "tried to persuade her to come back to California with him so they could hire a lawyer and prepare a defense.... The conversation was recorded." Id. at 12. Jackson County law enforcement arrested Dr. Allen on December 9, 2009, and charged him with two counts of tampering with a witness, two counts of attempted subornation of perjury, and two counts of attempting to influence the testimony of a witness. Circuit Court Order [28-6]. Because the arrest ...