United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This § 1983 action is before the Court on Sheriff Tommy Waddell's Motion for Summary Judgment Premised on Immunity . Having considered the memoranda and submissions of the parties, the Court finds that the motion should be denied in part and granted in part.
I. Facts and Procedural History
This case stems from a police pursuit that occurred on February 21, 2012. That night, Cruise Petty and Plaintiff Joseph McCarthy were with Bridgett King, Petty's girlfriend, at her grandmother's house. King's grandmother, Linda Sanders, ordered Petty and McCarthy out of the house, but Petty snuck back into King's bedroom. Sanders caught him and again chased him out of the house. Petty and McCarthy then jumped into Sanders's car and drove off. Petty was driving.
Around 10:24 p.m., Linda Sanders called the Neshoba County Sheriff's Department to report a breaking-and-entering and a stolen vehicle. Deputy Spears responded to the call and initiated a pursuit of Sanders's vehicle. There is no dispute that Petty refused to pull over and a chase ensued. Sheriff Tommy Waddell responded in his patrol car to provide back-up and support. According to Defendants, Petty and McCarthy rammed one patrol car, traveled at a high speed without headlights, swerved into oncoming traffic, and drove on the front right rim because they were missing a tire. After all this, Waddell ordered Spears to ram Petty and McCarthy's vehicle off the highway. The vehicle flipped and landed on the side of the road.
Waddell and deputies approached the vehicle while commanding the occupants to show their hands. McCarthy claims that he was seated in the vehicle with his hands up. Waddell had his service weapon in hand as he approached the passenger side and reached through the passenger-side window, at which time his service weapon fired, hitting McCarthy.
McCarthy sued Waddell and Neshoba County under § 1983 alleging excessive force in violation of the Fourth, Fifth, and Eighth Amendments, incorporated through the Fourteenth Amendment, though he has now dropped the Fifth and Eighth Amendment claims. He also states claims against Neshoba County under the Mississippi Tort Claims Act (MTCA). McCarthy filed the instant motion for summary judgment on all claims against him based on immunity. The Court has personal and subject-matter jurisdiction and is prepared to rule.
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that 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 (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. 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 (citation omitted). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not 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); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
A. Qualified Immunity Standard
Qualified immunity is a shield from individual liability for "government officials performing discretionary functions... as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'" Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). "[Q]ualified immunity generally protects all but the plainly incompetent or those who knowingly violate the law.'" Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
When a defendant asserts qualified immunity, the plaintiff has the burden to rebut the defense. Hamptom v. Oktibbeha Cnty. Sheriff Dep't, 480 F.3d 358, 363 (5th Cir. 2007). In the summary-judgment posture the Court "looks to the evidence before it (in the light most favorable to the plaintiff).'" McClendon v. City of Columbia, 305 F.3d 314, ...