United States District Court, S.D. Mississippi, Eastern Division
ORDER GRANTING SUMMARY JUDGMENT
T. WINGATE, UNITED STATES DISTRICT COURT JUDGE
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 56of 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.
James Keith Cooley has invoked the subject-matter
jurisdiction of this court under Title 28 U.S.C. §
1331, 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.
Defendants have not challenged subject matter diversity
jurisdiction; nevertheless, this court has an independent
obligation to verify it possesses subject matter
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, 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. §
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.
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].
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].
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
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.
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.
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.
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.
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.
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). 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].
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.
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
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.
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
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
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
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
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.
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.
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
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.
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
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.
Cooley fled from arrest, Chief Bunch and Sgt. West both gave
chase. As Sgt. West chased Cooley, he drew his
Taser, 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.
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.
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.
April 20, 2011, Cooley was convicted by the Wayne County,
Mississippi Justice Court of disorderly conduct (failure to
comply) and resisting arrest. 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.
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 ...