Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Davenport

United States District Court, N.D. Mississippi, Oxford Division

May 3, 2017

TOREY CORTEZ SMITH PLAINTIFF
v.
CULLY DAVENPORT, DEFENDANTS

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

         Torey 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.[1] 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 be granted.

         I. Summary Judgment Standard

         Summary 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 Cir. 1994).

         II. Relevant Facts

         On 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.

         Upon 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.

         Officer 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.

         Smith 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.

         While 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.

         Soon 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.

         After 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.

         Officer 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.

         In 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. Id.

         III. Hec ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.