United States District Court, S.D. Mississippi, Southern Division
ANTHONY R. VENUTO, Plaintiff,
JACKSON COUNTY, MISSISSIPPI; JACKSON COUNTY SHERIFF'S DEPARTMENT; SHERIFF MIKE BYRD AND OFFICER DONNIE MOORE in their individual and official capacities; and UNKNOWN DEFENDANTS 1-5, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS SHERIFF MIKE BYRD AND OFFICER DONNIE MOORE'S MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED IMMUNITY AND STATE LAW INDIVIDUAL IMMUNITY
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the  Motion for Summary Judgment Based on Qualified Immunity and State Law Individual Immunity filed by Defendants Jackson County Sheriff Mike Byrd ("Sheriff Byrd") and Jackson County police officer Donnie Moore ("Officer Moore") (collectively, "Defendants") in their individual capacities. Plaintiff Anthony R. Venuto did not oppose the Motion and the time for doing so has now expired under Local Uniform Civil Rule 7. Having considered the Motion, including the evidence submitted in support thereof, the Supporting Memorandum, and relevant law, the Court is of the opinion that the Motion is should be granted.
Plaintiff's case arises out of an incident that occurred on September 9, 2011, at a gas station in Vancleave, Mississippi. Officer Moore and another officer responded to a disturbance call by a gas station employee, and ultimately arrested Plaintiff for disorderly conduct, simple assault, and resisting arrest. Plaintiff then filed this action in the Circuit Court of Jackson County, Mississippi against Jackson County, Mississippi, Jackson County Sheriff's Department, and Sheriff Byrd and Officer Moore in their individual and official capacities, alleging violations of his First, Fourth, and Fourteenth Amendment rights and various state law claims. The action was removed to this Court, and Sheriff Byrd and Officer Moore moved for summary judgment on the individual capacity claims against them.
Plaintiff was given sufficient time to complete discovery related to immunity issues, but failed to do so and also failed to respond to Defendants' Motion for Summary Judgment. The Court notes that allegations in a Complaint are insufficient to create a genuine issue of material fact on summary judgment. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (on summary judgment, factual controversies are resolved in favor of the nonmoving party, but only when there is an actual controversy; that is, when both parties have submitted evidence of contradictory facts). Therefore, the Court finds the following facts undisputed based on the evidence before it for purposes of Defendants' immunity defense:
On September 9, 2011, after his credit card was rejected at a gas station pump, Plaintiff entered the gas station and a dispute ensued between Plaintiff and one or more of the gas station employees. Employee Sharron Dawn McKee ("McKee") placed a disturbance call to the Jackson County Sheriff's Department. Officer Moore and Officer Heath Kelley ("Officer Kelley") were then dispatched to the scene.
On his arrival at the scene, Officer Moore spoke with McKee. She told him that when Plaintiff tried to use his credit card at the gas pump to pay for gas and the card did not work, he entered the store and screamed at her. McKee told Officer Moore that she then swiped the card for Plaintiff, but Plaintiff snatched the receipt from her, refused to sign it, and returned to his vehicle cursing and yelling. While Officer Moore was speaking to McKee, Plaintiff again entered the store yelling about the receipt. Officer Moore instructed Plaintiff to return to his vehicle.
After speaking with McKee, Officer Moore exited the store and he and Officer Kelley approached Plaintiff. During the approximately five minute conversation with Plaintiff that ensued, Plaintiff cursed and yelled at both officers, including getting close to Officer Moore's face while doing so and threatening both officers with bodily harm. The officers then advised Plaintiff that he was being placed under arrest and told him to place his hands behind his back. Plaintiff refused. The officers struggled with Plaintiff briefly and then were able to handcuff him and place him in the back of Officer Moore's patrol car. Officer Kelley told Plaintiff that his walking cane was not needed and handed the cane to Plaintiff's wife, who was sitting in the vehicle. Officer Moore then took Plaintiff to the Jackson County Adult Detention Center, where he was charged with disorderly conduct, simple assault, and resisting arrest.
STANDARD OF REVIEW
Summary judgment is mandated against the 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 has the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiff has not submitted any argument or evidence in opposition to Defendants' Motion. Nevertheless, Defendants have the burden of establishing the absence of a genuine issue of material fact and, unless they have done so, the Court may not grant the Motion, regardless of whether any response was filed. Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
Having reviewed Defendants' Motion and the supporting evidence, the Court finds that Defendants have met their burden of establishing the absence of a genuine issue of material fact on the claims against them in their individual capacities, and, thus, are entitled to judgment as a matter of law on those claims.
I. Federal law ...