United States District Court, N.D. Mississippi, Oxford Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Cortez Smith, an inmate in the custody of the Mississippi
Department of Corrections ("MDOC"), is proceeding
Pro se and in forma pauperis in this action
under 42 U.S.C. §1983, alleging Hernando Police
Department Officers Cully Davenport, Tarra Davis, Dexter
Gates, and F. Newson ("Defendants") violated his
constitutional right to be free from excessive force and his
right to be free from unlawful arrest and
imprisonment. Defendants have moved for summary
judgment, Smith has filed a response to the motion, and
Defendants have submitted a rebuttal thereto. Having reviewed
the submissions and arguments of the parties, as well as the
applicable law, the Court finds that summary judgment should
Summary Judgment Standard
judgment is proper only when the pleadings and evidence,
viewed in a light most favorable to the nonmoving party,
illustrate that no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a) &(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A fact is
deemed "material" if "its resolution in favor
of one party might affect the outcome of the lawsuit under
governing law." Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation
omitted). Once the motion is properly supported with
competent evidence, the nonmovant must show that summary
judgment is inappropriate. Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); see
also Celotex, 477 U.S. at 323. The nonmovant cannot rely
upon "conclusory allegations, speculation, and
unsubstantiated assertions" to satisfy his burden, but
rather, must set forth specific facts showing the existence
of a genuine issue as to every essential element of his
claim. Ramsey v. Henderson, 286 F.3d 264, 269 (5th
Cir. 2002) (citation omitted); Morris, 144 F.3d at
380. If the "evidence is such that a reasonable jury
could return a verdict for the nonmoving party, " then
there is a genuine dispute as to a material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If no evidence of contradictory facts is presented,
however, the Court does not assume that the nonmovant
"could or would prove the necessary facts."
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
November 7, 2015, Torey Smith, a biological male who
presented on that date as female, was shopping in Hernando,
Mississippi, with his cousin, Lakayah Deneice Smith
("Lakayah"), and Lakayah's two minor children.
Doc. #144-1 at 2. The Hernando Police Department received a
call from The Shoe Department that three females, i.e. Smith,
Lakayah, and one of the minors, had shoplifted items from the
shoe store and had gone to a nearby Hibbett Sports store.
Id. Officer Gates responded to the call and spoke to
the assistant manager of Hibbett Sports, who advised Officer
Gates that she suspected that the three females were
shoplifting from Hibbett Sports. Id. After escorting
the females and the juvenile male outside, Officer Gates
asked the females for their identification, and Smith gave
Officer Gates a Georgia driver's license that identified
him as Ms. Tacara Chante Taylor. Id. Officer
Davenport arrived on the scene and began questioning
employees of The Shoe Department, who advised him that a
brown leather purse had likely been stolen. Id.
questioning, Lakayah's teenaged daughter eventually
admitted to stealing a purse from The Shoe Department and
handed Officer Gates the stolen purse, which she retrieved
from inside another purse that she had hanging on her
shoulder. Id. Officer Gates instructed Lakayah to
retrieve her identification, which was in her car.
Id. As Lakayah walked away to retrieve her
identification. Smith handed her a purse that had been
hanging on Smith's shoulder. Doc. #144-2, filed
conventionally, at 02:50-02:52 (citations are made to the
time stamps on a standard digital media player). After
Lakayah returned with her identification, the assistant
manager of Hibbett Sports came outside with an empty shoebox
and advised officers that the box had been found in the back
of her store, and that she believed that the pair of shoes
had been stolen. Doc. #144-1 at 2; see also Doc.
#144-2 at 04:00-04:16. At that point. Officer Gates noticed
that the ladies previously had a bag or purse that was now
missing. Doc. #144-1 at 2. Initially, the females all denied
the presence of another bag, but it was finally admitted that
Lakayah had taken the purse to the car. Id. see also
Doc. #144-2 at 04:48-05:18.
Gates escorted Smith to the car and demanded the purse. Doc.
#144-1 at 2. Smith opened the car door and retrieved the
purse, but instead of handing the purse to Officer Gates,
Smith emptied the contents of the bag on the floorboard of
the vehicle. Id. Smith then handed Officer Gates a
pair of canvas shoes with a tag on them from The Shoe
Department and stated, "[t]hese are the shoes we
stole." Id. Smith was removed from the vehicle
and placed in custody. Id. Officer Gates arrested
Smith and escorted him to the patrol car, where Smith was
told to sit in the back of the vehicle. Id.
refused Officer Gates' order to sit in the patrol
vehicle, claiming he needed medical attention, that he was
pregnant, and questioning the basis of his arrest. Id.
see also Doc. #144-2. After Smith denied Officer
Gates' multiple commands to sit in the back of the patrol
vehicle, Officer Davenport returned to assist placing Smith
in the vehicle. See Doc. #144-1 at 2. Smith was
advised that he was under arrest for shoplifting. Doc. #144-2
at 07:51-07:52. Smith began arguing with the officers and
resisting their efforts to place him in the patrol vehicle,
and Officer Davenport admonished Smith for spitting on him,
which Smith denied doing. See Docs, #144-1 at 2;
Doc. #144-2 at 08:15-08:30. Eventually, the officers
succeeded in getting Smith into the vehicle, and they
continued their investigation. See Doc. #144-1 at 2.
Because of Smith's complaints that she was pregnant and
in pain, Officer Davenport called for a supervisor and an
ambulance. Id. Doc. #144-2 at 07:28-07:33.
he was in the patrol vehicle. Smith freed himself from his
handcuffs and escaped the vehicle when one of the minor
children opened the door. Id. Doc. #144-2 at
09:58-10:13. A citizen informed officers that Smith had
escaped, and Smith was chased down and taken back into
custody. Doc. #144-1 at 2; Doc. #144-2 at 10:18-11:08. While
resisting officers and kicking at them. Smith was again
placed in the patrol car. Doc. #144-1 at 3; Doc. #144-2 at
11:51-12:30. Smith then began kicking and striking the window
and door of the patrol vehicle and once again freed himself
from his restraints. Doc. #144-1 at 3; Doc. #144-2 at
12:30-12:42. Officer Davenport opened the passenger door and
held Smith's arms and shoulders while Officer Gates
attempted to shackle Smith's legs. Doc. #144-2 at
12:42-14:33. Smith kicked at Officer Gates as the shackles
were being applied, informing the officers that "[y]ou
ain't shackling shit." Doc. #144-2 at 13:00. After
Smith was placed in the car, he continued to kick the doors,
and was instructed by Officer Davenport to stop. Id.
at 14:35-37. Smith responded, "[f]uck you,
cracker." Id. at 14:37-14:43.
thereafter, Defendant Lieutenant Freddie Newson arrived. Doc.
#144-1 at 3. Smith began beating against the window, and Lt.
Newson noticed that Smith had again freed himself from his
restraints and was hitting the door with the handcuffs. Doc.
#144-1 at 3. Lt. Newson opened the door to prevent Smith from
breaking the window, at which point Smith resisted Officer
Davenport's attempts to re-secure him in handcuffs.
Id. see also Doc. #144-2 at 18:09-18:52. Smith was
pulled outside of the vehicle so that he could be restrained,
and he again fought officers, hitting Officer Davenport in
the face and having to be wrestled to the ground. Doc. #144-2
at 18:53-19:15. Due to Smith's repeated escape from
handcuffs. Smith was secured with disposable restraints, or
zip-ties. Doc. #144-2 at 21:25-22:40. As he was being placed
in the patrol vehicle again, Smith stated to Officer
Davenport: "[t]he same way you can add charges, bitch?
Justice Court's about to wear you out. I'ma have your
ass on administrative leave, you fat fuck. Do some exercise,
bitch. Stop eating donuts." Doc. #144-2 at 22:44-22:55.
When Officer Davenport told Smith to get into the police
vehicle. Smith stated "I ain't doing shit, you do
it" and "I'ma kick the fuck outta you, you fat
fuck." Id. at 22:57-23:08.
Smith was secured for a third time, officers continued their
investigation, finding more potentially stolen merchandise in
the group's car, and locating an identification card
suggesting that Ms. Taylor might in fact be Mr. Torey Smith.
Doc. #144-1 at 3. Paramedics arrived and remained on the
scene until Smith was transported to the hospital via another
police vehicle. Id.
Tarra Davis, an officer and criminal investigator for the
City of Hernando, investigated the allegation that Smith had
assaulted Officers Gates and Davenport and concluded that
probable cause existed to arrest Smith on charges of assault
on a law enforcement officer. Doc. #144-3. She attested to
that knowledge in an affidavit in support of application for
felony charges against Smith. Doc. #144-4. Ultimately, Smith
was charged with shoplifting, disobeying a police officer,
escape, false identifying information to a police officer,
aggravated assault on a police officer, simple assault on a
police officer, and escape. See Doc. #144-7.
April 2016, Smith was indicted by a DeSoto County Grand Jury
on two counts of simple assault of a law enforcement officer,
in violation of Miss. Code Ann. §97-3-7(1). Doc. #144-6.
On or about May 9, 2016, Smith filed the instant suit,
alleging, as is relevant to Defendants' motion, a
violation of his right to be free from excessive force and a
violation of his right to be free from arrest and
imprisonment without probable cause. Doc. #1. Defendants
answered the complaint in September 2016. Docs. #62 &
#67. Thereafter, Smith, with the assistance of counsel,
negotiated a plea and pleaded guilty to assault on a law
enforcement officer on November 3, 2016. Doc. #144-5. Smith
was sentenced to three years' incarceration in the
custody of the Mississippi Department of Corrections.