United States District Court, N.D. Mississippi, Aberdeen Division
SCOTTY B. KILGO, PLAINTIFF
RANDY TOLAR, SHERIFF OF PRENTISS COUNTY, MISSISSIPPI, in his official capacity, and PRENTISS COUNTY, MISSISSIPPI DEFENDANTS
SHARION AYCOCK, U.S. DISTRICT JUDGE
Scotty Kilgo brought this cause of action against Prentiss County and its Sheriff, Randy Tolar, alleging that the Prentiss County Sheriff’s Department violated his constitutional and state law rights during a traffic stop on September 28, 2012. Defendants have filed a Motion for Summary Judgment  contending that there is no liability under Section 1983 and the United States Constitution and the Mississippi Tort Claims Act. The Court has reviewed the motion, exhibits, responses, rules and authority and finds as follows:
Factual and Procedural Background
Scotty Kilgo, an automotive mechanic in Alcorn County, Mississippi, was entrusted with Max Butler’s black 1985 Chevrolet Corvette in September of 2012. One Friday afternoon, Kilgo and Donald Hall, another customer, drove the 1985 Chevrolet Corvette through Prentiss County, Mississippi on an errand. During the trip, Kilgo encountered a roadblock set up by the Prentiss County Sheriff’s Department. While Kilgo had a valid driver’s license, he did not have proof of insurance on Max Butler’s vehicle. Further, the tag on the Corvette was expired. Kilgo either called attention to or the officer noticed a loaded firearm in the vehicle between the driver’s seat and the center console. Both Kilgo and Hall were removed from the car. A background check evidenced Hall had a prior felony, which resulted in the firearm being seized by the Sheriff’s Department.
Kilgo and Hall were patted down outside the vehicle and commanded to remove their socks and shoes while the officers searched the inside of the vehicle. Kilgo contends that officers accused him of transporting drugs due to the large amount of cash in his billfold and the condition of the car, i.e., the Corvette was missing a door handle, and a door panel was unscrewed. A deputy administered a field sobriety test on Kilgo and indicated that she believed Kilgo was under the influence of prescription drugs. Neither Kilgo nor Hall was arrested, and no warrant was secured for the search of the vehicle or the seizure of either the vehicle or firearm. Deputies required that Kilgo and Hall have someone come pick them up, and the Corvette was towed by Williams Wrecker Service. Kilgo contends that the officers “strip search” of the Corvette caused $9, 500 worth of damage. The charges against Kilgo for expired tag and no proof of insurance were later dismissed, and the Grand Jury issued a “no true billed” to Hall’s felon in possession charge.
Kilgo contends that the Prentiss County Sheriff’s Department violated his rights under the Fourth Amendment to be free from unreasonable search and seizure, and to be free from excessive force, as well as the Fifth Amendment for just compensation. Kilgo claims that the illegal warrantless search of his vehicle resulted in the illegal seizure of property, i.e., the Chevrolet Corvette and firearm. Kilgo also brings state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and trespass to chattels.
Defendants have filed a Motion for Summary Judgment on the grounds that Plaintiff has failed to state a claim under Section 1983 or state law, or that Defendants are protected by immunity under the MTCA and qualified immunity as held under federal law.
Summary Judgment Standard
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 “set forth ‘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). Importantly, 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.
Discussion and Analysis
1. Section 1983
Sheriff Tolar is sued in his official capacity only. Suits against governmental officers or employees in their official capacity are, in reality, suits against the entity that the officer or employee represents. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (official capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.”); Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“[a] plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.”) Therefore, Plaintiff’s claims against Sheriff Tolar in his official capacity are claims against Prentiss County.
To establish liability under 42 U.S.C. Section 1983 on the part of the County, Plaintiff must show that any constitutional violation by the officers was done pursuant to a policy from those entities. “Policy” in this context means either an official policy adopted and promulgated by a city policymaker, or a “persistent, widespread practice” of officials or employees which “is so common and well settled as to constitute a custom that fairly represents municipal policy.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). For a “custom” as described above to constitute a policy, a policymaker must have either actual or ...