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Stockstill v. City of Picayune

United States District Court, S.D. Mississippi, Southern Division

July 18, 2017

CITY OF PICAYUNE; BRYAN DAWSEY in his official capacity as Chief of Police for City of Picayune Police Department; and CHAD PRESTRIDGE individually and in his official capacity as Patrol Officer for the City of Picayune Police Department DEFENDANTS



         BEFORE THE COURT are the Motion for Summary Judgment [42] filed by the defendants City of Picayune, Chief Bryan Dawsey, and Officer Chad Prestridge and the Motion for Summary Judgment [44] filed by the plaintiff Jeremy Stockstill. Both Motions have been fully briefed. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the defendants' Motion for Summary Judgment should be granted as to Stockstill's claims against Chief Dawsey and Officer Prestridge in their official capacities as well as Stockstill's claims that are premised on the theory that Picayune adopted a total ban on voice amplification within the confines of the Main Street festival. The defendants are also entitled to summary judgment as to Stockstill's First Amendment claim concerning voice amplification. The defendants' Motion is denied in all other respects. The Court further finds that Stockstill's Motion for Summary Judgment should be denied.


         In this lawsuit, Stockstill claims that the defendants violated his constitutional rights to freedom of speech and due process when they stopped him from using voice amplification and handing out religious tracts at the Picayune Street Festival on March 28, 2015. The bi-annual street festival is operated as a fundraiser by Picayune Main Street, Inc. (hereafter referred to as “Main Street”), a non-profit corporation. (Defs.' Mot., Ex. E at 1-2, ECF No. 42-5). Main Street hires off-duty police officers to provide security for the festival. (Id. at 2). Vendors who rent booths at the festival are prohibited from handing out information outside of their booths. (Id.) In the past several churches and Christian organizations have rented booths at the festival, each paying $125 in rent. (Id.)

         Officer Prestridge was paid by Main Street to provide security for the festival on March 28, 2015. (Id.) He was an off-duty Picayune Police Officer, and he was wearing a shirt that said “Picayune Police, ” and his badge was attached to his belt.[1]He was also armed and wore a police radio. At the request of Main Street Director Reba Beebe, Officer Prestridge told Stockstill to stop handing out tracts, and he prohibited Stockstill from using a voice amplifier to preach at the festival.[2] (Id. at 3). Officer Prestridge also threatened to take Stockstill to jail if he continued to pass out tracts at the festival. (Verified Compl. at 9, ECF No. 1). During this discussion, Major Chad Dorn, an off-duty officer with the Picayune Police Department, called Officer Prestridge. (Id.; Defs.' Mot., Ex. A at ¶9, ECF No. 42-1). Major Dorn told Stockstill via speakerphone that he was not allowed to pass out information during the festival and that he could not use a voice amplifier. (Verified Compl. at 9-10, ECF No. 1). Major Dorn explained that Main Street had a permit for the area in which the festival was operated, and Officer Prestridge stated that violation of festival rules would be considered trespassing. (Id. at 10). Lieutenant Gary Wilton of the Picayune Police Department approached and, after some discussion, told Stockstill that he needed to leave the festival, because Main Street had told him to leave. (Id. at 15-16).[3] Lieutenant Wilton agreed with Officer Prestridge that Stockstill would be trespassing if he continued to pass out tracts in violation of Main Street's rules, and he told Stockstill that the police department would enforce the festival rules. (Id. at 16).

         Officer Prestridge contacted Main Street Director Beebe and obtained permission for Stockstill to remain at the festival as long as Stockstill stopped handing out tracts and refrained from using voice amplification. Stockstill then moved to a public sidewalk outside the festival, where he began passing out tracts and preaching without amplification. (Id.) Officer Prestridge once again told Stockstill to leave. (Id. at 17).

         Stockstill filed this lawsuit pursuant 42 U.S.C. § 1983 against the City of Picayune, Officer Prestridge in his official and individual capacities, and Chief Dawsey in his official capacity, claiming that they violated his rights to freedom of speech and due process. He seeks nominal damages, attorney's fees, and a permanent injunction permitting him to pass out tracts and use voice amplification at future festivals.


         A motion for summary judgment may be filed by any party asserting that there is no genuine issue of material fact and that the movant is entitled to prevail as a matter of law on any claim. Fed.R.Civ.P. 56. The movant bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25. The non-movant may not rest upon mere allegations or denials in its pleadings but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).


         The defendants first argue that the claims filed against Chief Dawsey and Officer Prestridge in their official capacities should be dismissed, because Picayune is the real party in interest. “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, 165 (1985) (quoting Monell v. N.Y.C. Dep't. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Since Stockstill's claims against Chief Dawsey and Officer Prestridge in their official capacities are redundant of his claims against Picayune, the Court finds that the official capacity claims Strickland filed against Chief Dawsey and Officer Prestridge should be dismissed with prejudice. See Fife v. Vicksburg Healthcare, LLC, 945 F.Supp.2d 721, 731 (S.D.Miss. 2013).


         “To state a claim under § 1983, a plaintiff must allege facts showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege or immunity secured by the United States Constitution or the laws of the United States.” Bryant v. Military Dep't of Miss., 597 F.3d 678, 686 (5th Cir. 2010). “A person acts ‘under color of state law' if he engages in the misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. (internal quotation marks omitted). “The Supreme Court has clarified that in cases under § 1983 ‘under color of law' has consistently been treated as the same thing as the ‘state action' required under the Fourteenth Amendment.” Blankenship v. Buenger, 653 F. App'x 330, 335 (5th Cir. 2016) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “While the [state action] inquiry is necessarily fact-bound, whether state action exists is a question of law for the court . . . .” Id. (internal quotation marks omitted).

         The defendants assert that Stockstill was not subjected to state action at the festival for the following reasons:

(1) the [f]estival is operated by a non-profit organization governed by a Board of Directors that is not appointed by Picayune; (2) the non-profit organization pays off-duty officers to serve as security at the [f]estival; and (3) the security officers who principally interacted with Stockstill during the Spring 2015 [f]estival were off-duty from the Picayune Police Department and paid by the non-profit organization.

(Defs.' Mem. at 9, ECF No. 43).

         “Whether an officer is acting under color of state law does not depend on his on- or off-duty status at the time of the alleged violation.” Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010). Regardless of whether a police officer is on-duty or off-duty, “a police officer acts under color of state law when he purports to exercise official authority.” Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir. 2005) (quoting Memphis, Tenn. Area Local Am. Postal Workers Union AFL-CIO v. City of Memphis, 361 F.3d 898, 903 (6th Cir. 2004)). If an off-duty police officer wears a badge, identifies himself as a police officer, and threatens arrest, there is a presumption of state action. Id.; see also Williams v. Dillard's Dep't Stores, Inc., 211 F. App'x 327, 330 (5th Cir. 2006) (holding that an off-duty police officer was acting in a public capacity, because she was wearing a uniform and badge and she performed an arrest).

         In the present case, Officer Prestridge wore a badge, a gun, a police radio, and a shirt that said “Picayune Police.” He also told Stockstill that he is a police officer twenty-four hours a day, and he threatened to arrest Stockstill. (Verified Compl. at 10, 13, 15, ECF No. 1). Therefore, there is a presumption of state action.

         Nevertheless, the defendants argue that the Fifth Circuit's decision in Rundus v. City of Dallas, 634 F.3d 309 (5th Cir. 2011), dictates a finding that there was no state action in the present case. In Rundus, the plaintiff was twice prohibited from passing out free Bible tracts at the Texas State Fair, which was run by a private corporation, the State Fair of Texas, and was held in Dallas, Texas. Rundus, 634 F.3d at 311. The State Fair of Texas was a tenant of the City of Dallas. Id. at 311, 314. Admission to the Fair was only permitted for those who had purchased tickets at a price set by the State Fair. Id. at 312. The City assigned approximately 160 police officers to patrol the fair. Id. These officers “enforce[d] applicable laws, including criminal trespass, but [did] not enforce [State Fair's] rules and regulations.” Id.

         The State Fair paid a portion of the officers' wages for the fair. Id. at 313. The State Fair had enacted a rule prohibiting the distribution of literature without a booth rental. Id. at 312. The Rundus plaintiff sued the State Fair of Texas and the City of Dallas, alleging that the State Fair's prohibition of distribution of literature violated his First Amendment rights. Id. The Fifth Circuit opinion did not discuss any direct interaction between the Rundus plaintiff and city police officers or other city officials. See id. It addressed the question of whether the private corporation State Fair of Texas was a state actor and whether the city had delegated policy-making authority to the State Fair. Id. at 312 and n.4.

         Since the City of Dallas had “no say in [the State Fair's] internal decision making, and had no role in enacting or enforcing the restriction on distribution of literature” and the Dallas police enforced “only criminal statutes and ordinances that provided neutral assistance, ” the Rundus court found that the State Fair was not a state actor. Id. at 314, 315. In making this finding, the Rundus court distinguished cases from other circuits that had found state action. Id. at 314. For example, Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005), was distinguishable because the city at issue in Parks had “aided the private event organizers in enforcing their speech restrictive regulations” and “the event organizers held a permit, and were not the city's tenants.” Id. The court distinguished Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007), because “[t]he City of Columbia not only provided critical assistance in planning and operating the [air] show, but also played an active role in enforcing the particular speech restrictions . . . .” Id. Furthermore, the Columbia police force's actions went “beyond the kind of neutral assistance that would normally be offered to private citizens in enforcing the law of trespass.” Id.

         In the present case, Main Street is a permit-holder, not a tenant. A Picayune police officer who was purporting to exercise official authority told Stockstill to leave and threatened to arrest him for trespassing, because Main Street did not want Stockstill to pass out tracts at the festival. Other police officers, one of whom was on-duty, also made similar statements and threats. These police officers possessed power by virtue of state law and their actions were made possible by their official authority. See Bryant, 597 F.3d at 686 (noting that an officer's conduct must have been made possible by the officer's state authority to be consider state action). Stockstill is not attempting to demonstrate that Main Street is a state actor or that Picayune should be held liable for the actions of Main Street. See McMahon v. City of Panama City Beach, 180 F.Supp.3d 1076, 1104 (N.D. Fla. 2016) (distinguishing Rundus in a case with facts very similar to the case at bar). Stockstill has sued Picayune for its own actions in enforcing Main Street's rules.

         Most importantly, while the city officers in Rundus did not enforce State Fair's rules, the Picayune Police Chief has indicated that the Picayune Police Department does enforce Main Street's rules. Specifically, in an affidavit he testified:

The Picayune Police Department intends to enforce the following rules at future Festivals: With respect to distributing literature, individuals may not distribute literature inside of the Festival unless they do so from the confines of a rented booth. Individuals may, however, distribute literature from the public streets and sidewalks directly outside of the Festival. With respect to sound amplification, individuals may not use amplification devices inside of the Festival without a sound ordinance variance. The Police Chief will consider variances, however for designated areas in close proximity to the Festival.

(Defs.' Mot., Ex. 1 at ¶10, ECF No. 42-1). Therefore, it appears that the assistance provided to Main Street by the Picayune Police Department exceeds the kind of neutral assistance that would normally be offered to private citizens in enforcing the law of trespass. See Bays v. City of Fairborn, 668 F.3d 814, 820 (6th Cir. 2012)(holding that state action existed where city officials supported and actively enforced a private entity's policies). ...

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