United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
considered the file and records in this action, including the
Report and Recommendation of the United States Magistrate
Judge and the objections to the Report and Recommendation,
the court finds that the plaintiff's objections are
without merit and that the Magistrate Judge's Report and
Recommendation should be approved and adopted as the opinion
of the court.
court will directly address only two of the plaintiff's
objections to the Magistrate Judge's Report and
Recommendation: his claim of municipal liability against the
City of Southaven and his equal protection claim. As the
Magistrate Judge noted in discussing Britton's claim of
municipal liability, the complaint alleged no facts showing
the existence of a policy or custom of the City or its
policymakers which caused injury to the plaintiff, and Mr.
Britton did not provide any in his objections. In the absence
of allegations involving such a policy or custom, the
complaint does not state a viable claim under 42 U.S.C.
§ 1983, and this claim will be dismissed with prejudice.
Wernecke v. Garcia, 591 F.3d 386, 401
(5th Cir. 2009).
addition, as to his equal protections claim, the
plaintiff's pleadings did not contain allegations that a
defendant treated another, similarly situated, inmate more
favorably than Britton. As such, the Magistrate Judge
recommended that the plaintiff's equal protection
allegations be dismissed for failure to state a claim upon
which relief could be granted. In his objection to the Report
and Recommendation, however, Mr. Britton argues that fellow
inmate Jessie Tiddle was similarly situated and received
different treatment. Britton now alleges:
On the same day Britton went to his hearing a fellow inmate
Jessie Tiddle was in court with him on the same original
charge as Britton and violated his post release supervision
with a failure to register [as a sex offender] charge. The
results of his was were completely different as the
prosecutor dropped the revocation of probation as long as
Tiddle [pled] guilty to [the] new charge of failure to
register [as a sex offender] . . . .
present case, Mr. Britton faced new charges of exploitation
of a child by soliciting a minor to depict sexual acts for
the viewing of another person over a computer network.
Britton had previously been convicted of that same charge,
but arising on an earlier occasion out of different events.
Indeed, he had only recently been released from incarceration
after serving time on the previous child exploitation charge
when he was investigated for new instances of child
exploitation relevant to the present case.
problem with Mr. Britton's argument in his objections is
that he and Tiddle were not similarly situated.
While Tiddle had failed to register as a sex offender,
Britton faced new charges of child exploitation - the precise
crime that led to his incarceration in the first place.
Though both crimes are serious, exploitation of a child is
far more serious than failure to register - a significant
fact that prevents the court from finding Britton and Tiddle
to be similarly situated. In addition, Britton has not
alleged that: (1) facing new charges is less harsh than
revocation of probation on the old charges; and (2) that,
given the opportunity, he would have pled guilty to the new
child exploitation charge, rather than accept revocation of
his probation on the old charges.
appears to the court that conviction on new charges would
have been a worse outcome than mere revocation of parole on
the old one. A conviction on new felony charges would leave
Mr. Britton with two felony convictions - and, should he
commit a felony in the future, expose him to the harsh
penalties under Mississippi's habitual offender statute,
Miss. Code Ann. § 99-19-81 (as well as the habitual
offender statutes in other states, nearly all of which
operate as “three strikes” laws). For that
reason, it appears that the example Mr. Britton provided, the
plea of guilty to a second offense, does not constitute more
lenient treatment, and Britton's claim regarding denial
of due process will be dismissed.
the plaintiff's objections to the Magistrate Judge's
Report and Recommendation are OVERRULED;
the Report and Recommendation of the United States Magistrate
Judge is hereby APPROVED AND ADOPTED as the opinion of the
all of the claims and defendants in this case are DISMISSED
with prejudice, except the claim of illegal search and
seizure as to defendants Detective Brennon Rushing, Probation