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Cooley v. City of Waynesboro

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

September 19, 2017




         BEFORE THIS COURT is the Motion for Summary Judgment filed by the individual defendants, James Bunch and Mark West. [Docket no. 68]. In their motion, the individual defendants argue that this court should grant summary judgment under the authority of Rule 56[2]of the Federal Rules of Civil Procedure for various reasons. The plaintiff has failed to respond to the individual defendants' Motion for Summary Judgment. After a review of the individual defendants' pleadings this court finds that their Motion for Summary Judgment is well-taken and should be GRANTED.


         Plaintiff James Keith Cooley has invoked the subject-matter jurisdiction of this court under Title 28 U.S.C. § 1331[3], often referred to as “federal question jurisdiction.” Under federal question jurisdiction, this court has the power to exercise subject-matter jurisdiction over a lawsuit if a plaintiff alleges some claim or right arising under the United States Constitution or federal law.

         The Defendants have not challenged subject matter diversity jurisdiction; nevertheless, this court has an independent obligation to verify it possesses subject matter jurisdiction.[4]

         Upon a review of the pleadings of the parties, this court finds it possesses federal question subject matter jurisdiction because James Keith Cooley asserts various claims under the authority of Title 42 U.S.C. § 1983[5], a federal enactment. This court also finds that it possesses supplemental jurisdiction over Cooley's state law claims under the authority of Title 28 U.S.C. § 1367[6].


         The plaintiff, James Keith Cooley (hereinafter referred to as “Cooley”), filed his complaint in this federal forum on July 12, 2011. [Docket no. 1]. In his complaint Cooley alleged causes of action for: 42 U.S.C. § 1983 - Freedom of Expression and Speech; 42 U.S.C. § 1983 - Unlawful Detention; 42 U.S.C. § 1983 - Excessive Force; 42 U.S.C. § 1983 - Pursuit of Happiness; 42 U.S.C. § 1983 - Malicious Prosecution; 42 U.S.C. § 1983 - Right to be Free on His Property and in His Person Without Interference From the State; 42 U.S.C. § 1983 - Due Process; Battery; Trespass to Land; Malicious Prosecution; Wrongful Arrest; False Imprisonment; Tortious Interference with Business; and Conspiracy.

         The defendants filed their Answer on August 12, 2011. [Docket no. 3]. The same day, August 12, 2011, the defendants filed their Motion for Qualified Immunity. [Docket no. 5]. The parties engaged in immunity related discovery. On February 8, 2012, this court denied the Motion for Qualified Immunity as premature and staying the case pending the close of immunity related discovery. [Docket no. 27].

         On May 21, 2012, the parties jointly moved to dismiss the plaintiff's claims against defendant Brian Everett with prejudice, which this court granted. [Docket no. 45].

         The individual defendants filed their first Motion for Summary Judgment on June 8, 2012 alleging the same grounds as they have in their Motion for Summary Judgment currently before this court.

         This court held a hearing in this matter on October 10, 2012, regarding the first Motion for Summary Judgment [Docket no. 47]. At that hearing, this court stayed the lawsuit subjudice pending the outcome of the criminal charges that are the subject of this litigation. [Docket no. 61].

         This court held a status conference in this matter on December 2, 2016, to determine if this matter was a live controversy. The parties indicated that this lawsuit is still a live controversy, to which this court allowed the individual defendants to re-urge their motion for summary judgment by January 10, 2017. [Docket no. 65]. The court allowed the plaintiff until January 24, 2017, to respond. [Docket no. 65]. The plaintiff's attorney, Michael Crosby, file a Motion for Extension of Time to File a Reply [Docket no. 70] which this court granted.

         On March 2, 2017, this court again asked the parties for a written status update, to which the parties replied that this matter was still a live controversy. Attorney Crosby acknowledged that his reply to the motion for summary judgment was due on March 6, 2017. [Docket no. 72]. Despite his tacit acknowledgement of this deadline, Attorney Crosby never filed a response.

         This court issued a show cause order on May 30, 2017, ordering Attorney Crosby to show why he had not replied to the Motion for Summary Judgment. [Docket no. 73]. Attorney Crosby filed his response on June 6, 2017, stating that he did not expect that he would be responsible for replying to the motion for summary judgment and asking the court to allow him time to file a reply. [Docket no. 74]. Attorney Crosby again did not file any reply to the motion for summary judgment.

         On August 4, 2017, this court issued its final extension of time to Cooley ordering that he must file his reply to the motion for summary judgment no later than August 18, 2017. [Text Only Order 8/4/2017]. Attorney Crosby still has not filed his reply to the motion for summary judgment.


         The plaintiff has failed to respond to the individual defendants' Motion for Summary Judgment; therefore, this court will accept the facts presented in the individual defendants' Motion for Summary Judgment as undisputed. See F.R.C.P. 56(e)(2).[7] This court has given the plaintiff ample opportunity to reply to the motion for summary judgment as allowed under F.R.C.P. 56(e)(1). Accordingly, this court must take the facts submitted by the defendants in their brief in support of their motion for summary judgment. [Docket no. 69].

         On April 23, 2010, at approximately 8:00 a.m., the Wayne County, Mississippi Emergency Operations Center (hereinafter referred to as “Central Dispatch”) received a call from an unknown male citizen indicating that a female driver had been involved in a single-car accident in front of a restaurant named Mississippi Fried Chicken on Mississippi Drive in the City of Waynesboro, Mississippi. The caller informed Central Dispatch that a male individual was now driving the vehicle involved in the single-car accident and that both the male and female were leaving the scene of the accident.

         Waynesboro Policeman, Sgt. Mark West (hereinafter referred to as “Sgt. West”) was dispatched to the scene of the accident. When Sgt. West arrived in front of Mississippi Fried Chicken, however, he was unable to locate any automobile accident.

         Shortly thereafter, Central Dispatch received another call regarding an accident in the same area of Waynesboro, Mississippi. The manager of the local Kentucky Fried Chicken (hereinafter referred to as “KFC”), Rebecca “Becky” Reynolds (hereinafter referred to as “Reynolds”), had called Central Dispatch and informed it that Cooley's ex-wife, Sadie Cooley (hereinafter referred to as “Sadie”), had just driven through the bushes at KFC, collided with Reynolds' parked car and then left the scene. Reynolds identified Sadie as the individual who had collided with her parked car. Reynolds also had reported that Sadie was driving a white Cadillac Escalade whose tag began with the letters “WYF.” According to Reynolds, the Cadillac was now parked at Cooley's place of business - Cooley Drugs - just down Mississippi Drive from the KFC.

         Central Dispatch then contacted Sgt. West and informed him about the evolving situation. Sgt. West sent Waynesboro Police Officer Stevie Walker (hereinafter referred to as “Officer Walker”) to KFC to speak with Reynolds. Sgt. West went to Cooley Drugs to continue his investigation. While traveling down Mississippi Drive towards Cooley Drugs, Sgt. West saw a white Cadillac Escalade in the parking lot behind Cooley Drugs. The Cadillac matched the description of the vehicle reported to Central Dispatch. Sgt. West drove into the parking lot directly behind Cooley Drugs to investigate the Cadillac.

         Sgt. West parked his cruiser and contacted Central Dispatch, informing Central Dispatch that he had found a white Cadillac Escalade with the tag number “William, Young, Frank, 9, 6, 3.” The tag number on the Cadillac - WYF963 - matched the preliminary numbers previously given to Central Dispatch by Reynolds. Sgt. West exited his patrol car and approached the white Cadillac Escalade where he saw Sadie in the back seat of the Cadillac, allegedly asleep or passed out.

         According to Sgt. West, Cooley came out the back door of Cooley Drugs and approached him. Cooley told Sgt. West to get off his property, and that he was trespassing. Sgt. West responded that he was investigating an auto accident and that as soon as he completed his investigation he would leave the premises.

         Cooley testified in his deposition that when he spoke to Sgt. West, he told Sgt. West to leave the property. Cooley contends he told Sgt. West that Sgt. West was not authorized to come onto Cooley's property. Cooley then asked Sgt. West whether Sgt. West had changed a report Sgt. West had written regarding a burglary that had taken place at Cooley Drugs - a report Cooley says was falsified. After that inquiry, Cooley went back inside Cooley Drugs, leaving Sgt. West in the parking lot.

         After his conversation with Cooley, Sgt. West called his shift supervisor to inform him of the confrontation. Sgt. West's shift supervisor was occupied with another call and unavailable. Sgt. West next called Chief Jimmie Bunch (hereinafter referred to as “Chief Bunch”) as a result. Sgt. West informed Chief Bunch that he was investigating an automobile collision involving Sadie, that she had fled the scene of the accident, and was now parked at Cooley Drugs. Sgt. West further advised Chief Bunch that Cooley had told him to get off his property and threatened to charge him with trespassing. Sgt. West told Chief Bunch that, given Cooley's attitude towards him, he felt Cooley was going to give him problems with the accident investigation.

         Meanwhile, Officer Shannon Smith (hereinafter referred to as “Officer Smith”) arrived at Cooley Drugs to assist Sgt. West. As Officer Smith arrived, Cooley came back out of the drugstore and again told Sgt. West to get off his property, or he would press trespassing charges against Sgt. West.

         After speaking with Sgt. West over the phone, Chief Bunch drove to Cooley Drugs to try to “smooth things over.” Within five (5) or six (6) minutes of receiving the call from Sgt. West, Chief Bunch arrived at the back parking lot of Cooley Drugs. Moments after Chief Bunch arrived, Cooley approached him in an aggressive manner and told him that Cooley wanted the officers to leave the Drug Store parking lot immediately. Chief Bunch replied by telling Cooley that the City of Waynesboro Police Officers were engaged in a police investigation and that if Cooley would “just give it a few minutes” the officers would “be gone.” Cooley informed the Chief that he “had nothing to do with this matter, that they should go on and let [him] conduct business, they were blocking [his] drive-through and hindering [his] business.” Cooley then took a step in the direction of officers working Sadie's accident. Chief Bunch, who didn't want Cooley interfering with the investigation, placed his hand on Cooley's arm to restrain him from going towards the officers. Chief Bunch then instructed Cooley to go back inside his store and allow the officers to conduct their investigation. To which Cooley then allegedly replied: it would be in [Chief Bunch's] “best interest…to get [his] f…ing hands off” him, while Cooley was pushing Chief Bunch's hand off Cooleys biceps.

         Chief Bunch testified that he felt threatened by Cooley and reached for his handcuffs and told Cooley that he was under arrest. Cooley immediately took flight in an attempt to evade arrest.

         Cooley admits Chief Bunch instructed him to go back into his store; however, Cooley tells a markedly variant version: he contends Chief Bunch commanded him to go into the store to retrieve Sadie's car keys, to which he responded that he did not have a set of keys to the Escalade because he had lost the car in the divorce proceeding with Sadie. Cooley says he next told the officers to leave the premises as he “had nothing to do with [the] matter” and they should “go on and let [him] conduct business…” Cooley then alleges that Chief Bunch put his hand on Cooley's bicep and ordered him inside to get the car keys or Chief Bunch would arrest him. Cooley claims he responded “how can I, with you holding my arm?” According Cooley, he then “jerked” away and “pulled loose” from Chief Bunch and started calmly towards the store.

         Although Sgt. West commanded Cooley to stop when he moved away from Chief Bunch, Cooley claims he only heard Chief Bunch tell Sgt. West to “shoot.” Cooley admits that he ran from Chief Bunch and Sgt. West. Cooley testified in his deposition that he ran “sideways while looking back…trying to get away from being shot” and that he made a “kind of zigzag” and a “sidestep” to “keep from being shot.” Cooley had a federal firearm's license and at that time, his drug store contained, by his count, approximately 200 weapons. Both Chief Bunch and Sgt. West were aware of the arsenal in Cooley's store.

         Once Cooley fled from arrest, Chief Bunch and Sgt. West both gave chase. As Sgt. West chased Cooley, he drew his Taser[8], and ordered Cooley to stop. When Cooley did not obey his command, Sgt. West fired the Taser, striking Cooley in his back. The Taser automatically cycled and stopped Cooley from fleeing, forcing him to the ground.

         Once Cooley hit the ground, he immediately “reached around behind [his] back” to, according to Cooley, “see what [he] had been shot with.” Chief Bunch and Sgt. West both believed that Cooley was reaching around behind his back in an effort to pull one of the Taser leads from his back. Had Cooley been able to do so, he would have been able to break the electric circuit of the Taser and, thereby, neutralize it. Since Cooley was not yet subdued - not yet in handcuffs nor under Chief Bunch or Sgt. West's control - Sgt. West cycled the Taser again.

         After the second cycle, Chief Bunch was able to grab Cooley's hands and handcuff him. The City of Waynesboro Police Officers then transported Cooley to the local jail and charged him with resisting arrest and disorderly conduct.

         On April 20, 2011, Cooley was convicted by the Wayne County, Mississippi Justice Court of disorderly conduct (failure to comply)[9] and resisting arrest[10]. Cooley appealed his convictions to the Circuit Court; however, during the pendency of his appeal, Cooley was charged with felonies in both the State of Alabama and the State of Mississippi. Neither felony was related to Cooley's criminal charges underlying this matter.

         Special Prosecutor Frances Smith Stephenson and Cooley voluntarily entered a Nolle Prosequi Agreement to dismiss Cooley's misdemeanor convictions. The Wayne County Circuit Court entered an Order of Nolle Prosequi finding that Cooley's misdemeanor criminal appeal was not being dismissed because Cooley was innocent but, rather, for purposes of judicial economy given the pendency of felony charges against him.


         a.Summary Judgment Standard ...

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