United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO STRIKE THE EXPERT REPORT OF MICHAEL S. STREET, DENYING DEFENDANTS' MOTION TO STRIKE THE AFFIDAVIT OF CHARLES WILLIAM MARIS III, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND ORDERING BRIEFING ON THE STATUTE OF LIMITATIONS ISSUE
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is the Motion for Summary Judgment  filed by Defendants the City of Jackson and Officer Trena Yarber. Also before the Court are Defendants' Motion to Strike the Expert Report of Michael S. Street  and Defendants' Motion to Strike the Affidavit of Charles William Maris III . Plaintiff Stephanie McPhail has filed a Response  to Defendants' Motion for Summary Judgment, a Response  to the Motion to Strike the Affidavit of William Maris III, and a Response  to the Motion to Strike the Expert Report of Michael S. Street. Defendants have filed a Reply  in support of their Motion for Summary Judgment.
Having considered the parties' submissions, relevant legal authorities, and the record, the Court is of the opinion that the Motion to Strike the Affidavit of Charles William Maris III should be denied, the Motion to Strike the Expert Report of Michael S. Street should be granted, and the Motion for Summary Judgment should be granted in part and denied in part. The Motion should be granted in part as to Plaintiff's procedural and substantive due process claims, her §1983 excessive force claim against the City and Officer Yarber in her individual capacity, her §1983 claim for failure to train against the City, and her state law claims for assault and battery against the City. The Motion should be denied only as to Plaintiff's state law claims for assault and battery against Officer Yarber in her individual capacity.
A. Factual Background
Resolving factual disputes in Plaintiff's favor, Officers Trena Yarber and Patrick Smith of the City of Jackson Police Department responded to a disturbance call "around midnight" the morning of September 9, 2011, originating from a home located at 5418 Venetian Way, in Jackson, Mississippi. Aff. of Charles William Maris III ("Maris Aff.") [26-1], Ex. H to Defs.' Mot. for Summ. J. [24-8]. At the time Officers Yarber and Smith arrived, Plaintiff Stephanie McPhail ("Plaintiff") and Charles Maris had stepped outside the home of a mutual friend to smoke cigarettes. Maris Aff. ¶ 6-7. The officers informed Plaintiff and Mr. Maris that they were responding to a disturbance call. Id. When questioned by the officers, Plaintiff and Mr. Maris answered that they were "just smoking cigarettes" outside a friend's home. Id. The officers then returned to their vehicles and left the scene, but at some point after leaving, the officers received a second disturbance call directing them to return to 5418 Venetian Way because two unknown individuals were still on the premises. Id. at ¶ 8, Aff. of Trena C. Yarber ¶ 6 ("Yarber Affidavit") [24-1].
According to Mr. Maris, approximately thirty minutes after Officers Yarber and Smith had initially departed the scene, he and Plaintiff were again outside because another mutual friend, Lauren Starkey, had returned after using Plaintiff's car to drive an acquaintance home. Maris Aff. at ¶ 9. Ms. Starkey exited the car and Plaintiff entered the driver's seat, and as Mr. Maris entered the back seat, Officers Yarber and Smith returned. Id. at ¶ 10. Officer Smith approached Mr. Maris and handcuffed him without explanation. Id. Officer Yarber opened the driver's side door and removed Plaintiff from the car. Id. at ¶ 11. Mr. Maris states in his Affidavit that he observed Officer Yarber punch Plaintiff in the stomach, handcuff Plaintiff, "slam" her against a patrol car, and "throw" Plaintiff into the patrol car. Id. at ¶ 12. Mr. Maris was charged with "public drunk" and Plaintiff was charged with using "abusive language." Id. at ¶ 13. Mr. Maris maintains that Plaintiff did not use "abusive language" until after the physical altercation with Officer Yarber occurred. Id. at ¶ 14. After the pair were booked, Mr. Maris noticed Plaintiff's right wrist was "a little bruised and swollen" and "purplish." Id. at ¶¶ 17, 19. Plaintiff's right wrist also had "scratches and a gash, " which Mr. Maris attributes to the handcuffs.
B. Procedural Background
On March 11, 2013, Plaintiff filed the Complaint  naming the City and Officer Yarber as Defendants. The Complaint does not specify whether Officer Yarber is being sued in her individual or official capacity. Id. at 1-6. Plaintiff advances claims against Defendants pursuant to 42 U.S.C. §1983 for violation of civil rights, violation of her rights to procedural and substantive due process, and excessive force. Id. at 3-5. Plaintiff alleges pursuant to §1983 that the City failed to adequately train and supervise its police officers. Id. at 4. Plaintiff also pleads claims under Mississippi law for assault and battery. Id. at 5.
Pursuant to the Court's Scheduling Order, Plaintiff's experts were to be designated on or before October 29, 2013, Defendants' experts were to be designated on or before November 29, 2013, and discovery was to conclude on January 31, 2014. Case Management Order 4-5 . Dispositive motions were due on or before February 14, 2014, and trial was set for June 16, 2014. Id. After the case was reassigned on October 21, 2013, however, the trial was rescheduled for August 4, 2014. Text Only Amended Scheduling Order, Oct. 23, 2013.
On October 29, 2013, Plaintiff filed a Motion to Extend Expert Designation Deadlines . The Motion was granted as unopposed, and Plaintiff's expert designation deadline was extended to November 29, 2013. Text Only Order, Oct. 30, 2013. The Court also extended the discovery deadline to February 3, 2014. Id.
1. Defendants' Motion for Summary Judgment
On February 14, 2014, Defendants filed a Motion for Summary Judgment . Defendants contend that Plaintiff cannot establish evidence supporting a claim for failure to train pursuant to §1983 because there is no evidence that the City had a policy of failing to train its police officers or that the policy was a moving force behind a constitutional violation. Defs.' Mem. in Supp. of Mot. for Summ. J. 5-10 . Defendants posit that Plaintiff's substantive due process claim fails because Plaintiff has not produced evidence of a deprivation of a protected interest in life, liberty, or property. Id. at 12-13. Defendants also maintain that Plaintiff's procedural due process claim cannot succeed because adequate post-deprivation tort remedies exist under Mississippi law. Id. at 13-14. Because the injuries Plaintiff alleges she suffered were all caused prior to the encounter with Officer Yarber, Plaintiff's state law claims should be dismissed. Id. at 14-15. As for Plaintiff's §1983 excessive force claim, Defendants assert they are entitled to judgment as a matter of law due to the de minimis nature of Plaintiff's alleged injuries. Id. at 15-16. Despite arguing that Officer Yarber has not been sued in her individual capacity, Defendants also reason that Officer Yarber is entitled to qualified immunity. Id. at 2 n.1, 15-18.
On March 5, 2014, Plaintiff filed her Response  to Defendants' Motion for Summary Judgment. Plaintiff supported her Response with the Affidavit of Charles William Maris III [26-1] and a report [26-2] prepared by Michael Street, Plaintiff's purported expert who had not previously been disclosed. Plaintiff argues that Officer Yarber is not entitled to qualified immunity because "Plaintiff's factual allegations raise genuine issues of material fact" as to whether Officer Yarber violated Plaintiff's Fourth Amendment right to be free from excessive force and whether Officer Yarber's actions were objectively unreasonable. Mem. of Authorities in Supp. of Stephanie McPhail's Resp. to Defs.' Mot. for Summ. J. 7-10 . With respect to her state law claim for assault and battery, Plaintiff maintains that under the Mississippi Tort Claims Act, Mississippi Code §§ 11-46-1 through-23 ("MTCA"), her "allegations raise genuine issues of material fact" pertaining to whether Officer Yarber "acted in reckless disregard for the safety and well-being" of Plaintiff. Id. at 10-11. Plaintiff further states that her "factual allegations... show that [Plaintiff] was not engaged in criminal activity." Id. Plaintiff does not respond to the remainder of Defendants' Motion for Summary Judgment.
2. Defendants' Motions to Strike
On March 7, 2014, Defendants filed a Motion to Strike  the expert report authored by Michael Street and submitted by Plaintiff in opposition to Defendants' Motion for Summary Judgment. Defendants contend that the report is untimely and procedurally barred under both Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure and Rule 26(a)(2) of the Local Uniform Civil Rules. Mem. of Authorities in Supp. of Mot. to Strike the Expert Report of Michael S. Street 2 . Defendants further argue that the report does not offer any information regarding Mr. Street's qualifications, is not sufficiently tied to the facts of the case, and does not meet the standards set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993). Plaintiff did not file a Response in Opposition  until May 23, 2014,  and claimed that she was unable to timely disclose an expert because Defendants did not produce certain documents with their initial disclosures and did not make certain witnesses available for deposition. Mem. Br. in Supp. of Pl.'s Resp. to Defs.' Mot. to Strike Expert Report of Michael Street 2 .
Defendants filed a second Motion to Strike  on March 7, 2014, seeking to exclude the Maris Affidavit. Defendants contend that the Affidavit is untimely and procedurally barred under Rule 26(a) and Rule 37 of the Federal Rules of Civil Procedure and that the Affidavit does not contain any facts pertaining to Plaintiff's excessive force claim. Mem. of Authorities in Supp. of Mot. to Strike Aff. of Charles William Maris III 4-8 . Plaintiff also did not file a Response in Opposition  to the Motion until May 23, 2014. Plaintiff argues that Defendants were already aware of Mr. Maris's identity and his Affidavit complies with Rule 56(c)(4).
A. Relevant Legal Standards
1. Defendants' Motions to Strike
"[A] Party must, without awaiting a discovery request, provide to the other parties... a copy... of all documents... that the disclosing party has in its possession, care, custody, or control and may use to support its claims...." Fed.R.Civ.P. 26(a)(1)(A)(ii). Parties are under a continuing duty to timely supplement these required initial disclosures. Fed.R.Civ.P. 26(e)(1)(A). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to ...