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Montgomery v. City of Lumberton

United States District Court, S.D. Mississippi, Eastern Division

September 12, 2014

GARY MONTGOMERY, Plaintiff,
v.
CITY OF LUMBERTON; LAMAR COUNTY;, LAMAR COUNTY SHERIFF'S DEPARTMENT; AND JOHN DOES 1-5, Defendants,

ORDER

DANIEL P. JORDAN, III, District Judge.

This case is before the Court on Defendants Lamar County's and Sheriff Danny Rigel's Motion to Dismiss State Law Claims [19]. The Court, having considered the issues and the parties' submissions in light of the applicable standards, finds that moving Defendants' Motion should be granted.

I. Facts and Procedural History

Plaintiff Gary Montgomery averred the following facts in his Amended Complaint. On June 21, 2013, Montgomery was returning to his home after receiving a haircut. Just as he arrived at his driveway, Lumberton police officers pulled him over for driving without headlights, though his headlights were illuminated at the time. Am. Compl. [14] ¶¶ 10-11.

After the stop, the officers detected the smell of alcohol from a third party's beer that had previously spilled under the seats. Id. ¶ 12. When placed under arrest, Montgomery informed the officers that he had various medical conditions, including cancer, and asked to enter his house to retrieve and take his medication. Id. ¶ 14. The officers denied his request, and he was transported to the Lamar County Jail ("LCJ") on suspicion of DUI. Id. ¶¶ 14-15. No field sobriety tests of any sort were conducted prior to the arrest. Id. ¶ 15.

Once at the jail, Montgomery requested medical attention, but the officers denied his request. Id. ¶¶ 16-17. As a result, his legs began to swell. Id. ¶ 17. That condition made it difficult for Montgomery to comply with the officers' demand that he change into a prison jumpsuit. Id. ¶ 18. Upset with Montgomery's lack of cooperation, the officers forcibly disrobed Montgomery, breaking his shoulder in the process. Id. ¶ 19. He was again denied medical attention for this and other complaints and was released from jail the next morning. Id. ¶ 22.

In addition to federal claims that are not presently disputed, Montgomery asserts the following state-law claims: negligence, gross negligence, trespass, excessive force, assault, battery, defamation, negligent training, negligent supervision, malicious prosecution, harassment, conspiracy, outrage, [1] failure to provide medical treatment, and false imprisonment. Id. ¶ 73.

Defendants Lamar County and Sheriff Danny Rigel now move for dismissal of Montgomery's state-law claims as they relate to them. It appears from the Amended Complaint that those claims are limited to acts occurring after Montgomery arrived at the LCJ. There is no allegation that the Sheriff's Department was involved in the initial arrest made by officers from Defendant City of Lumberton.

II. Analysis

A. Conceded Claims

The Mississippi Tort Claims Act ("MTCA") waives sovereign immunity for some, but not all, claims against governmental entities and employees. In this case, Defendants assert that many of Montgomery's claims are excepted from the limited waiver. More specifically, Defendants claim that the negligent training and negligent supervision claims are barred by section 11-46-9(1)(d) and that the trespass, assault, battery, defamation, malicious prosecution, conspiracy, and outrage claims are barred by section 11-45-5(2). Though Montgomery referenced these claims in his response, he never addressed Defendants' statutory arguments for their dismissal and therefore abandoned these claims. See Estate of Pernell v. City of Columbus, No. 1:08CV0040-DD, 2010 WL 1737638, at *4 (N.D. Miss. Apr. 28, 2010) (holding that failure to argue a point in response amounts to a concession of the issue).

B. Disputed Claims

Montgomery has not, however, abandoned all state-law claims. He disputes Defendants contention that the remaining state-law claims are barred by Mississippi Code section 11-46-9(1)(m). In relevant part, that section states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties ...

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