United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER CONCERNING THE
PARTIES' MOTIONS FOR SUMMARY JUDGMENT
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT are the Motion for Summary Judgment 
filed by the defendants City of Picayune, Chief Bryan Dawsey,
and Officer Chad Prestridge and the Motion for Summary
Judgment  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.
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.
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.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. (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). 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
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).
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
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).
OFFICIAL CAPACITY CLAIMS AGAINST CHIEF DAWSEY AND OFFICER
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).
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
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
(Defs.' Mem. at 9, ECF No. 43).
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
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.
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.
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.
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.
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.
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