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Estate of Manus v. Webster County

United States District Court, N.D. Mississippi, Aberdeen Division

March 31, 2014



SHARION AYCOCK, District Judge.

This cause comes before the Court on Defendants' motions for summary judgment, Defendants' motions to exclude Plaintiffs' experts [166], [167], [283], [285], [287], and Defendants' Motion to Strike [172]. Upon due consideration of the motions, responses, rules, and authorities, the Court finds as follows:


The facts of this matter are complex and highly disputed. Joseph Conway Manus ("Manus") originally brought this action, asserting constitutional claims brought through 42 U.S.C. § 1983, as well as various state law claims. Manus alleged that on September 7, 2010 law enforcement officers from Webster County, Mississippi; Eupora, Mississippi; and Mathiston, Mississippi used excessive force against him in order to effectuate an unlawful arrest and denied him medical care during the seven days that he was in their custody. As a result, Manus claimed he suffered serious injuries, including quadriplegia.[1] Manus died on December 1, 2012, while this lawsuit was pending.

After his death, Manus' widow, Miranda Manus, acting on her own behalf as well as with Manus' mother, Lois Manus, on behalf of all wrongful death beneficiaries, and Manus' estate were substituted as Plaintiffs. Plaintiffs filed an Amended Complaint adding a claim for wrongful death on June 6, 2013. Named Defendants to this action are Webster County Sheriff Phillip Smith, Deputy Jeremy Kilgore, Deputy Derek May, Webster County Jailers Shay Holmes and Toby Britt, and Webster County, Mississippi ("County Defendants"); Eupora Police Chief Gregg Hunter, Officer Keith Crenshaw, [2] Officer Mitch Jackson, the municipality of Eupora, Mississippi, Mathiston Police Chief Roger Miller, Officer Shane Box, and the municipality of Mathiston, Mississippi (Municipal Defendants). All Defendants have filed motions for summary judgment, asserting, among other things, that Plaintiffs' claims are barred by the doctrines of qualified immunity and the Mississippi Tort Claims Act.


Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1997); Little , 37 F.3d at 1075.

Ordinarily, when contradictory facts exist, the Court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Still, the Fifth Circuit has held that in the case of a bench trial, "a district court has somewhat greater discretion to consider what weight it will accord the evidence. When deciding a motion for summary judgment prior to a bench trial, the district court has the limited discretion to decide that the same evidence, presented to him or her as a trier of fact in a plenary trial, could not possibly lead to a different result." Johnson v. Diversicare Afton Oaks, LLC , 597 F.3d 673, 676 (5th Cir. 2010) (internal citations omitted). Indeed, the Fifth Circuit has stated that "it makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inferences involve issues of witness credibility or disputed material facts. If a trial on the merits will not enhance the court's ability to draw inferences and conclusions, then a district judge properly should draw his inferences without resort to the expense of trial.'" Matter of Placid Oil Co. , 932 F.2d 394, 398 (5th Cir. 1991) (emphasis added) (quoting Nunez v. Superior Oil Co. , 572 F.2d 1119, 1124 (5th Cir. 1978)).


I. Official Capacity Claims Against Individual County Defendants

Plaintiffs brought suit against all individually named Defendants in both their personal and official capacities. Unlike suits against officers in their personal capacities, suits brought against officers in their official capacities "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. N.Y.C. Dep't of Social Svcs , 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citing Brandon v. Holt , 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)). Accordingly, the dismissal of allegations against municipal officers in their official capacities is proper when the allegations duplicate claims against the governmental entity itself. See Castro Romero v. Becken , 256 F.3d 349, 355 (5th Cir. 2001).

County Defendants argue that the allegations against the individual County Defendants in their official capacities are duplicative and should be dismissed.[3] Though Plaintiffs argue that their official capacity claims against the individual County Defendants are not duplicative of their claims against Webster County, they give no explanation as to how those claims differ. Rather, Plaintiffs cite several cases of nonbinding authority dealing with courts' attempts to identify the nature of liability sought by plaintiffs when complaints do not specify whether officials are being sued in their personal or official capacities. See Mosby v. Moore , 716 So.2d 551, 557 (Miss. 1998); Fitzgerald v. McDaniel , 833 F.2d 1516, 1520 (11th Cir. 1987); Conner v. Reinhard , 847 F.2d 384, 394 (7th Cir. 1988). These cases are inapplicable to the case at bar as Plaintiffs specifically stated in their Amended Complaint that they are suing "all public employees in their official and individual capacities." Further, Plaintiffs' arguments that "[t]he officers should not be dismissed as there are claims of individual liability" and that "[s]ummary judgment on individual capacity claims is precluded" have no bearing on whether Plaintiffs' official capacity claims against the individual County Defendants should be dismissed. As such, the Court finds the dismissal of Plaintiffs' claims against the individual County Defendants in their official capacities merited.

II. § 1983 Claims and Qualified Immunity

Liability may be imposed upon any person who, acting under the color of state law, deprives another of federally protected rights. 42 U.S.C. § 1983. Section 1983 does not create substantive rights; rather, it merely provides a remedy for deprivations of rights established elsewhere. City of Okla. City v. Tuttle , 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). To bring an action within the purview of Section 1983, a claimant must first identify a protected life, liberty, or property interest, and then prove that government action resulted in a deprivation of that interest. Baker v. McCollan , 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Mahone v. Addicks Utility Dist. , 836 F.2d 921, 927 (5th Cir. 1988); Villanueva v. McInnis , 723 F.2d 414, 418 (5th Cir.1984).

"The doctrine of qualified immunity protects government officials 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." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotations omitted). "[Q]ualified immunity is an immunity from suit rather than a mere defense to liability." Id., 129 S.Ct. 808 (internal quotations omitted). Once a government official asserts qualified immunity, it is the plaintiff's burden to prove that the official is not entitled to it. Michalik v. Hermann , 422 F.3d 252, 258 (5th Cir. 2005).

In evaluating qualified immunity, the Court employs a two-step process. Cantrell v. City of Murphy , 666 F.3d 911, 922 (5th Cir. 2012), cert. denied, 133 S.Ct. 119 , 184 L.Ed.2d 25 (2012). The Court must determine (1) whether the plaintiff has alleged a violation of a clearly established constitutional right and (2) whether the government official's conduct was objectively reasonable under the law at the time of the incident. Michalik at 257-58. "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, ___ U.S. ___ , 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotations omitted). "Thus, the qualified immunity standard gives ample room for mistaken judgments' by protecting all but the plainly incompetent or those who knowingly violate the law.'" Mendenhall v. Riser , 213 F.3d 226, 230 (5th Cir. 2000) (quoting Malley v. Briggs , 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court may address these issues in any order according to its sound discretion and in light of the circumstances of the case at hand. Pearson , 555 U.S. at 236, 129 S.Ct. 808.

a. Arrest-related Claims

Plaintiffs contend that Defendants violated Manus' right to be free from unlawful arrest, unlawful search and seizure, and unlawful detention and confinement in violation of the Fourth, Fifth, [4] and Fourteenth Amendments. Plaintiffs claim that on September 7, 2010, Webster County Deputies Derek May and Jeremy Kilgore illegally entered Manus' residence without an arrest warrant or consent. Deputy May and Deputy Kilgore claim they were instructed by Webster County Sheriff Phillip Smith to take Manus into custody because his bond for pending criminal charges had been revoked. Plaintiffs, on the other hand, claim Manus had been given a new bond on other pending criminal charges and contend "no valid order revoking Manus' [prior] bond was ever filed or created."

i. Unlawful Arrest

"When an individual asserts a claim for wrongful arrest, qualified immunity will shield the defendant officers from suit if a reasonable officer could have believed [the arrest at issue] to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Mendenhall , 213 F.3d at 230 (quoting Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (further citation omitted)).

The record shows that Manus was arrested on charges of assaulting a law enforcement officer in June 2010 and was released on bond. Then, in July 2010, Manus was arrested again on charges of domestic violence and issued a new bond. Manus entered a court ordered drug and alcohol treatment program on or around August 6, 2010 and was released on September 4, 2010. Defendants contend that Manus' bond from the June 2010 incident was revoked as a result of the July 2010 charges and that Manus should have been transferred directly from the drug and alcohol treatment facility to the Webster County jail. Instead, Manus returned to his mother's home.

Deputy Kilgore testified in his deposition that on September 7, 2010 Sheriff Smith told him that Manus' bond had been revoked and to "go pick him up." Deputy Kilgore claimed that he called Deputy May to assist him and that, prior to going to Manus' residence, Deputy May called Justice Court Judge Rebecca Ellison to confirm that Manus' bond had been revoked. Deputy May corroborated this account in his own deposition testimony, stating that he called Judge Ellison when he learned that Manus had been released from the drug and alcohol treatment facility. According to Deputy May, Judge Ellison confirmed that Manus' bond was revoked and told him that "if [Manus] was out of rehab, he needed to be picked up and back in jail." Likewise, Judge Ellison testified in her deposition that Deputy May called her and that she told him to pick Manus up because his bond had been revoked.

It is undisputed that Deputy May and Deputy Kilgore had no paperwork with them when they arrived at Manus' residence. Judge Ellison testified in her deposition that on July 27, 2010, as a result of Manus being charged with domestic violence, she held a bond revocation hearing in the county jail. Judge Ellison testified that she set Manus' bond at $10, 000 on the domestic violence charge and at the same time revoked his bond from the prior pending charges. Judge Ellison explained that if a person is:

there on a second felony charge, you tell them that, look, you are out on bond on a felony charge and here you've done - you've committed another felony. And the procedure is that we revoke the bond on the first charge. And you have to sit in jail until you go to court on that first charge, and then you can bond out on this.

There is no evidence in the record that Judge Ellison ever entered a revocation order. Defendants offer a document titled, "Motion for Appointment of Attorney" that contains a handwritten note stating, "Has 2 previous felony charges which have not gone to court ($13, 000 Bond)- Revoked due to new felony charge." Judge Ellison testified in her deposition that the note was written in her handwriting on July 27, 2010 and that she did not have to enter a bond revocation order for a bond to be revoked.[5] Judge Ellison also testified that because Manus' bond had been revoked, she did not have to issue an arrest warrant in order for law enforcement officers to bring him into custody on September 7, 2010.

Sheriff Smith testified in his deposition that he instructed Deputy May and Deputy Kilgore to arrest Manus based on his belief that Judge Ellison had revoked Manus' bond. Thus, the record indicates that Deputy Kilgore and Deputy May went to Manus' residence based upon information from Sheriff Smith and Judge Ellison that Manus' bond had been revoked. Whether Judge Ellison's revocation of Manus' bond was valid or not, Plaintiffs offer no evidence that Sheriff Smith, Deputy Kilgore, or Deputy May had any reason to believe that it wasn't. Plaintiffs have failed to demonstrate a genuine issue of material fact as to whether Sheriff Smith, Deputy May, and Deputy Kilgore acted objectively unreasonably in relying on Judge Ellison's statements that Manus' bond had been revoked and in believing that they therefore had probable cause to bring him into custody. Accordingly, Sheriff Smith, Deputy May, and Deputy Kilgore are entitled to qualified immunity, and summary judgment is proper with regard to Plaintiffs' claims of unlawful arrest.

Additionally, Plaintiffs acknowledge that shortly after Deputy May and Deputy Kilgore arrived at Manus' residence, Deputy May issued a call for assistance because Deputy Kilgore thought Manus had a knife. Defendants contend Sheriff Smith, Eupora Police Chief Gregg Hunter, Eupora Officer Keith Crenshaw, Mathiston Police Chief Roger Miller, and Mathiston Officer Shane Box arrived at Manus' residence in response to Deputy May's call for backup. Plaintiffs, however, argue that the true reason these Defendants arrived at the scene was to further a conspiracy to violate Manus' constitutional rights. Miss. Const. art. III, § 29.

In support of this allegation, Plaintiffs cite the deposition testimony of Dr. Jewel Huffman, the emergency room physician who treated Deputy Kilgore for a cut to the head that he sustained during Manus' arrest. Dr. Huffman testified that after Manus' arrest, in the presence of Chief Hunter, Eupora Officer Mitch Jackson, Chief Miller, and Officer Box, Deputy Kilgore said, "Yeah, we tried to break his f**king neck, " referring to Manus. Dr. Huffman further testified that in response to this statement "[t]hey all chuckled and laughed and kind of agreed. You know, nobody said anything, you know...."

This testimony, however, does not have any bearing as to whether Sheriff Smith, Chief Hunter, Officer Crenshaw, Chief Miller, and Officer Box had reason to believe the arrest in progress was unlawful. The alleged statement of Deputy Kilgore does not serve to rebut Defendants' contention that these Defendants responded to Deputy May's call for backup to assist with the arrest of a person who had a knife and was resisting arrest. See Deville v. Marcantel , 567 F.3d 156, 166 (5th Cir. 2009) ("[W]here a police officer makes an arrest on the basis of oral statements by fellow officers, an officer will be entitled to qualified immunity from liability in a civil rights suit for unlawful arrest provided it was objectively reasonable for him to believe, on the basis of the statements, that probable cause for the arrest existed.") (quoting Rogers v. Powell , 120 F.3d 446, 455 (3d Cir.1997)). Plaintiffs fail to raise a genuine issue of material fact as to whether these Defendants relied upon Deputy May's statements and whether doing so was objectively unreasonable. Accordingly, these Defendants are entitled to qualified immunity and summary judgment is warranted as to Plaintiffs' claims against them for unlawful arrest.[6]

ii. Unlawful Search and Seizure

Plaintiffs additionally contend that Deputy Kilgore and Deputy May forcibly entered Manus' residence on September 7, 2010 without a warrant or consent. Lois Manus testified in her deposition that she did not give Deputy May and Deputy Kilgore permission to enter her home and that "Kilgore stuck his foot inside [her] door as [she] went to shut it and forced himself in." Deputy Kilgore's deposition testimony confirmed this as he testified that "when [Lois Manus] went in she tried to close the door. I kept the door opened. I did not want to - you know, her to lock us outside.... I propped the door open with my foot." Deputy May also testified in his deposition that Lois Manus did not give them permission to enter the home and that he also placed his foot in the door.

The Fifth Circuit has specifically held that "even if... officers ha[ve] probable cause to search [a] home, they ha[ve] to have exigent circumstances to enter without a warrant." United States v. Aguirre , 664 F.3d 606, 610 (5th Cir. 2011). "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin , 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Further, "[w]hen the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Id.

Deputy May claimed that he entered Manus' residence in "hot pursuit, " a circumstance the Fifth Circuit has "recognized as an exigency justifying a warrantless search." Payne v. City County and the municipalities of Eupora and Mathiston, the Court addresses liability for all claims against these entities in a later section of this opinion. See infra Section III. of Olive Branch, 130 F.Appx. 656, 662 (5th Cir. 2005) (citing United States v. Santana , 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976)). Deputy May testified in his deposition that Manus was outside when he and Deputy Kilgore arrived and that "Manus proceeded into the house and closed the door behind him before I could even exit my patrol car." Deputy May testified that he and Deputy Kilgore entered Manus' residence because "[Manus] was going into his house. We were going in to retrieve him." Manus and Lois Manus, on the other hand, testified that Manus was inside the residence when Deputy Kilgore and Deputy May arrived. Additionally, Deputy Kilgore testified that he and Deputy May stood outside Manus' residence and talked with Lois Manus "for about 15 minutes" before they entered the home. Deputy Kilgore testified that Lois Manus went into the residence claiming to go get Manus but that it sounded like she was talking to someone on the phone. Deputy Kilgore testified that he told May, "We need to go in." Viewing the evidence in the light most favorable to Plaintiffs, a genuine issue of material fact exists as to whether Deputy Kilgore and Deputy May violated Manus' rights by entering his residence without a warrant or consent.

Further, at the time of the incident, the law was clearly established that exigent circumstances must be present in order to execute a warrantless arrest in the home. See Payton v. New York , 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Accordingly, Deputy Kilgore and Deputy May are not entitled to qualified immunity and summary judgment is not proper as to Plaintiffs' claims against them for unlawful search and seizure.

However, the Court has determined that no genuine issue of material fact exists as to whether Sheriff Smith, Chief Hunter, Officer Crenshaw, [7] and Chief Miller entered Manus' residence in response to Deputy May's call for assistance involving an armed man resisting arrest. The Fifth Circuit has long recognized that "[e]xigent circumstances include those in which officers reasonably fear for their safety....'" United States v. Rico , 51 F.3d 495, 501 (5th Cir. 1995) (quoting United States v. Mendoza-Burciaga , 981 F.2d 192, 196 (5th Cir. 1992), cert. denied, 510 U.S. 936 , 114 S.Ct. 356, 126 L.Ed.2d 320 (1993)). The Court finds that Deputy May's call for assistance created exigent circumstances sufficient to justify the entry of Sheriff Smith, Chief Hunter, and Chief Miller into the residence without a warrant or consent, and these Defendants are thus entitled to summary judgment as to Plaintiffs' claims against them for unlawful search and seizure.[8]

b. Excessive Force

Claims of excessive force used by law enforcement officials "in the course of making an arrest, investigatory stop, or other seizure' of [a plaintiff's] person... are properly analyzed under the Fourth Amendment's objective reasonableness' standard, rather than under a substantive due process standard." Graham v. Connor , 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When a plaintiff asserts claims for both unlawful arrest and excessive force, the Court must "analyze the excessive force claim without regard to whether the arrest itself was justified." Deville , 567 F.3d at 167 n.7 (quoting Freeman v. Gore , 483 F.3d 404, 417 (5th Cir. 2007)).

"[T]o state a violation of the Fourth Amendment prohibition on excessive force, the plaintiff must allege: (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and (3) the use of force that was objectively unreasonable." Bush v. Strain , 513 F.3d 492, 500-01 (5th Cir. 2008) (citing Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004)). "The objective reasonableness of the force... depends on the facts and circumstances of the particular case, such that the need for force determines how much force is constitutionally permissible." Id . (citing Ikerd v. Blair , 101 F.3d 430, 434 (5th Cir. 1996)). "Specifically, the court should consider the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Id . (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865). Importantly, an officer's subjective intent is irrelevant. Graham , 490 U.S. at 397, 109 S.Ct. 1865 ("An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.").

Plaintiffs argue that Defendants used excessive force in arresting Manus. In his deposition, Manus testified that he had just taken a shower and was in his bedroom getting dressed when his mother knocked on the door and told him law enforcement was there and wanted to speak with him. Manus testified that he did not immediately exit the room because he was putting on his clothes but that he did voluntarily exit his bedroom after Deputy Kilgore threatened to break down the door. Manus further testified that he was willing to go with Deputy Kilgore until he spun him around and threw him up against a door facing. At that point, according to Manus, he "kind of got away from [Deputy Kilgore] a little bit, " and then Deputy Kilgore tased him. Manus testified that he retreated into his bedroom and that Deputy Kilgore and Deputy May called for backup because they thought he had a knife.

According to Manus, Sheriff Smith arrived and broke down the door to Manus' bedroom, and then, when Manus stood up, Deputy Kilgore handcuffed Manus' hands behind his back. Manus testified that after he was handcuffed, Sheriff Smith hit him in the back of the neck with a bat and then again as he was falling to the ground.[9] Manus also claims that Mathiston Police Chief Roger Miller had arrived and sprayed him in the face with mace as he was falling, that Deputy May tased him on the knee with a hand taser while he was handcuffed, and that Sheriff Smith dropped down onto Manus' neck with his knee with a large amount of force while Manus was lying handcuffed on the ground. Manus testified that he did not resist the officers.

With regard to Deputy Kilgore, Manus testified that he tased him before Manus was handcuffed and after he "got away" from Deputy Kilgore. Manus also testified that Deputy Kilgore thought he had a knife, though Manus claimed the object was actually a cellphone. Thus, according to Manus' own testimony, at the time Deputy Kilgore tased him, he was resisting arrest and Deputy Kilgore thought he posed a serious threat. Plaintiffs have not demonstrated a genuine issue of material fact as to whether Deputy Kilgore's use of his taser was "clearly excessive to the need." Ikerd , 101 F.3d at 433-34. Further, even if Deputy Kilgore's use of the taser did constitute excessive force, he is entitled to qualified immunity because his actions were not objectively unreasonable under clearly established law at the time of the incident. See Buchanan v. Gulfport Police Dep't, 2012 WL 1906523, at *9-10 (S.D.Miss. May 25, 2012) ("where the suspect is resisting arrest or disobeying the officers' orders, tasing may not be considered excessive force") (collecting cases), aff'd, 530 F.Appx. 307 (5th Cir. 2013).

As to Deputy May, Manus testified that he was not resisting the officers and had his hands handcuffed behind his back when Deputy May deployed a hand taser on his knee. Five years before this incident, the Fifth Circuit held that a law enforcement officer was not entitled to qualified immunity where the officer tased someone who was not resisting arrest, was committing only a minor crime, and posed no threat to the officer or others. Autin v. City of Baytown , 174 F.Appx. 183, 186 (5th Cir. 2005). The Fifth Circuit held that the three factors outlined in Graham were clearly established such that a reasonable officer would be charged with the knowledge that they "tend to indicate whether the use of force is appropriate." Id . Likewise, a reasonable officer in 2010 would have known that the Graham factors weighed against the use of a taser on a handcuffed suspect who posed little risk to officers or others and who was not resisting arrest. Accordingly, the Court finds that Plaintiffs have demonstrated a genuine issue of material fact with regard to whether Deputy May violated Manus' clearly established rights through the use of excessive force. Therefore, Deputy May is not entitled to qualified immunity, and summary judgment is not proper.

Similarly, genuine issues of material fact prevent the granting of summary judgment in favor of Sheriff Smith. Manus testified in his deposition that Sheriff Smith hit him in the back of the neck with a bat twice, that Sheriff Smith landed with force on his neck with his knee, and that he was handcuffed and compliant at all times. Again, the Court finds that no reasonable officer could have believed that hitting an arrestee who is handcuffed and not resisting arrest with a bat or slamming a knee down onto that arrestee's neck constituted reasonable force in light of the Graham factors. Thus, Sheriff Smith is not entitled to qualified immunity from Plaintiffs' claims of excessive force, and summary judgment is not appropriate.[10]

i. Fourteenth Amendment - Pretrial Detainee

In addition to their claims of excessive force in violation of the Fourth Amendment,

Plaintiffs argue that Defendants are also liable for the use of excessive force against Manus while he was a pretrial detainee in violation of the Fourteenth Amendment. Manus testified that Deputy May transported him to the Webster County jail and accompanied Webster County Dispatcher/Deputy Toby Britt and Eupora Officer Mitch Jackson as they walked Manus to his cell. Plaintiffs allege that Officer Jackson pulled Manus from the patrol car and dropped him on the ground, that Officer Jackson slammed Manus into the cell bars as he escorted him to his cell, and that Officer Jackson intentionally tripped Manus causing him to fall face forward onto the floor when Manus was placed in the cell. Municipal Defendants concede that there is a "question of fact regarding whether... [Officer Mitch Jackson] is liable for excessive force pursuant to the Fourth Amendment." However, they contend that Manus was an arrestee at the time of any alleged use of excessive force against him because "[a]ll of the Municipal Defendants' alleged wrongful conduct occurred before [Manus] was placed in his cell at the Sheriff's Department." (emphasis in original). Municipal Defendants argue that Plaintiffs' Fourteenth Amendment claims must therefore be dismissed.

The Fifth Circuit has held that, unlike an arrestee, "[a] pretrial detainee receives the protection of the Due Process Clause of the Fourteenth Amendment." Bros. v. Klevenhagen , 28 F.3d 452, 455-56 (5th Cir. 1994) (citing Valencia v. Wiggins , 981 F.2d 1440, 1443-45 (5th Cir. 1993), cert. denied, 509 U.S. 905 , 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993)). However, "the point at which an arrest ends and pretrial detainment begins is not always clear." Gutierrez v. City of San Antonio , 139 F.3d 441, 452 (5th Cir. 1998) (citation omitted).

While the Fifth Circuit has held that "seizures of the person do not end at the initial moment of seizure, " United States v. McRae , 702 F.3d 806, 833 (5th Cir. 2012), cert. denied, 133 S.Ct. 2037 , 185 L.Ed.2d 887 (2013) (citing Graham , 490 U.S. at 394-96, 109 S.Ct. 1865), "[h]ow long the seizure of the person goes on... is not defined with precision in [the Fifth] [C]ircuit, and it is a question that divides other circuits." Id . (citing Bros. , 28 F.3d at 455-57; Valencia , 981 F.2d at 1443-44). Still, the Fifth Circuit has held that the Fourth Amendment does not provide "an appropriate constitutional basis for protecting against deliberate official uses of force occurring... after the incidents of arrest are completed, after the plaintiff has been released from the arresting officer's custody, and after the plaintiff has been in detention awaiting trial for a significant period of time." Valencia , 981 F.2d at 1443-44 (emphasis in original).

In the case at bar, Manus had not been "in detention awaiting trial for a significant period of time" when Officer Jackson's alleged actions took place. Id . Neither had he been "released from the arresting officer's custody." Id . Thus, Plaintiffs' claims against Jackson are properly analyzed under the Fourth Amendment, and summary judgment is merited as to their excessive force claims against him in violation of the Fourteenth Amendment. Whereas Plaintiffs concede there is no evidence to support their Fourteenth Amendment excessive force claims against Chief Hunter and Officer Crenshaw, summary judgment is also appropriate as to those claims. Further, Plaintiffs fail to allege any use of force by other Defendants that might violate the Fourteenth Amendment, and thus, the Court finds summary judgment warranted as to all of Plaintiffs' Fourteenth Amendment excessive force claims.[11]

ii. Bystander Liability

It is undisputed that Webster County Jailer/Dispatcher Shay Holmes was not present at the scene when Manus was arrested, and Plaintiffs have not alleged that Holmes used or witnessed excessive force against Manus at any time. Therefore, she cannot be liable for Plaintiffs' claims of excessive force, and summary judgment as to those claims is appropriate with regard to Holmes. However, Plaintiffs contend Eupora Police Chief Gregg Hunter, Eupora Officer Keith Crenshaw, and Mathiston Officer Shane Box are liable for witnessing the use of excessive force by the other officers and failing to prevent or stop it, though they are not alleged to have used force against Manus themselves.

The Fifth Circuit has held that "an officer who is present at the scene and does not take reasonable measures to protect a suspect from another officer's use of excessive force may be liable under section 1983." Hale v. Townley , 45 F.3d 914, 919 (5th Cir. 1995) (citation omitted). Further, "[t]he fact that [officers] [a]re from different law enforcement agencies does not as a matter of law relieve [them] from liability for a failure to intervene." Id . "[L]iability under § 1983 can attach when the bystander officer had a reasonable opportunity to realize the ...

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