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Johnson v. City of Gulfport

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

November 17, 2017




         Before the Court are dispositive motions of the City of Gulfport [22] and of the Gulfport police officer Defendants [24] filed, respectively, on March 24, 2017 and March 27, 2017 in this pro se prisoner civil rights lawsuit. On April 5, 2017, Plaintiff filed responses to the motions [26], [27], and Defendants filed rebuttal memoranda on April 13, 2017. [31], [32] Plaintiff filed responses [37], [38] to the rebuttal memoranda which Defendants have moved to strike as unauthorized pleadings under the Rules. [39] Also before the Court is [48] Plaintiff's motion for preliminary injunction and [49] for hearing thereon filed July 19, 2017, both of which Defendants have moved to strike. [53]

         Facts and Procedural History

         Daryl Fitzgerald Johnson is presently an inmate of the Mississippi Department of Corrections (MDOC), having been sentenced March 11, 2016 to serve a total of 32 years for two Harrison County convictions of delivery of controlled substances. The MDOC web site shows Johnson entered the MDOC system April 12, 2016, and his release date is March 2, 2048.

         On August 4, 2016, Johnson filed suit against the City of Gulfport (City), “confidential informant” Tiffani Young, and Gulfport policemen Adam Gibbons, Joey Wuest, Nicholas Olds, Arron Fore, and Robert Coleman.[1] Johnson's complaint alleges the City is using its police department “to depive (sic) [him] of the right to own property; right to liberty and civil right's (sic).” [1, p. 6] He claims the police closed his business for selling beer without a beer permit and business permit, “where in August 2010 the charges was dismissed in city court and [his] business was forced to be closed for over 5 months without any profitts (sic);” and that police came to his business without a search warrant on July 11, 2012, and kicked in the doors of his office and of his renters, resulting in all his tenants moving. [1, p. 6] The City urges these claims are barred by the statute of limitations.

         Johnson claims the City negligently hired racist, unprofessional police officers who were not properly trained in recognizing suspects and had no facial recognition equipment. He alleges that officers Wuest, Fore, Olds and Gibbons sent confidential informant Tiffani Young to Johnson's “private living quarters”[2] to buy drugs, and that Young made a drug buy recorded via audio and video recording, but the buy was from Plaintiff's brother Terry Johnson, not the Plaintiff. When Young turned the drugs over to Detective Olds, she told him she bought them from Daryl Johnson.[3] On April 11, 2014, police detectives again sent Young to 1512 20th Street to make a drug buy. Plaintiff claims the video made in his back yard on that date was of his brother Terry, despite Young's statement that she got the drugs from Daryl. Officers Gibbons, Fore, Wuest and Olds are alleged to have watched the second transaction. On May 9, 2014, Olds secured an arrest warrant for Plaintiff from a Justice Court Judge for the April 11, 2014 drug sale. [1, pp. 7-8] On May 15, 2014, Gibbons, Fore, Olds and Wuest arrested Johnson. Johnson claims it is Terry in the video of the transaction and that Terry has so testified; and, in an apparent challenge to the affidavit upon which the arrest warrant was based [1, p. 11], [26-1], Johnson contends that the transaction did not occur inside a building. Johnson was indicted for the drug sales in August 2014.

         Johnson alleges that around February 26, 2015, Fore and other officers/agents came to his property at 1512 20th Street, ordered Johnson out of his truck at gunpoint, and Officer Fore asked whether Johnson was going to plead guilty to the drug charges. Johnson alleges Fore admitted he (Fore) knew it was not Plaintiff on the video and stated he was given orders “by the City ... through his Chief” to close Johnson down “even if it takes locking [Johnson] up.” [1-9] After a three-day trial by jury in Harrison County Circuit Court, Johnson was convicted in March 2016 of two counts of transfer of controlled substances, and sentenced to serve consecutive sentences of 16 years on each charge, as a habitual offender and enhanced drug offender. [22-2]

         Johnson asserts the City has tried to close his business down several times, “each time close to time to pay tax's (sic) on land, ” resulting in Johnson's defaulting on his taxes and losing over a million-dollar business and property (two houses and land). He alleges that in February 2013, the City closed the street down for construction, leaving customers no way to get in his store for a year, and after completion of the street repairs, the construction crew did not properly reconnect his sewer line resulting in sewage backing up into Johnson's store and his tenants' rooms. He states he sued the construction company which had the street repair contract, and won. [1, p. 10]

         The City's Motion

         The City asserts Johnson cannot show violation of an actionable right because his complaints about “closing down” his business for selling beer without a permit in 2010 and kicking in doors in 2012 are barred by the applicable statute of limitations; his claims of false arrest, false imprisonment and other claims arising out of his 2014 arrest for transfer of controlled substances are barred by Heck v. Humphrey, 512 U.S. 477 (1994) since his convictions on the charges have not been reversed, overturned or expunged; and he has failed to set forth a proper municipal liability claim under § 1983. In support of its motion, the City presents a certified copy of Johnson's final judgment of conviction on the referenced drug sales. [22-2]

         Johnson's response [26] to the City's motion essentially repeats and expounds upon the allegations of his complaint. Attached to his response are copies of the warrant issued by the Justice Court on May 9, 2014 with Johnson's handwritten notations [26-1]; a February 12, 2016 fax from the District Attorney's Office to Mike Hester (Johnson's criminal defense attorney) regarding the anticipated trial testimony of Tiffany Young [26-2]; a photograph purportedly showing Johnson's brother Terry [26-4]; an NCIC report indicating Plaintiff has numerous tattoos and pierced ears [26-4]; a February 2016 fax from attorney Hester to Robert McCormick at the DA's office regarding police coming to Johnson's property and stating they knew it was not him in the video [26-5]; and correspondence from Johnson to the Clerk, the City Attorney, and to Tiffani Young c/o the City Attorney. [26-6]

         Motion of Officers Gibbons, Wuest, Olds and Fore[4]

         The individual officers sued by Johnson contend qualified immunity warrants dismissal of the claims against them, and that the complaint fails to demonstrate an actionable right because Johnson's false arrest and false imprisonment claims against the officers arise from the drug transactions of which he now stands convicted. [1, p. 11], [22-2] The officers argue Johnson cannot pursue such claims because a finding in his favor would necessarily imply the invalidity of Johnson's convictions in contravention of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). That being the case, the officers argue Johnson's allegations fail to show violation of a federally secured right, which is essential to overcome the officers qualified immunity defense. In support of their motion, the officers also present a certified copy of the state court final judgment of Johnson's conviction on the drug offenses. [24-2]

         Johnson's response [27] to the officers' motion also is largely repetitive of the allegations of his complaint, asserting among other things that false statements in the underlying affidavit about Young entering Johnson's building and purchasing drugs from him led to issuance of the warrant for his arrest, and that it was Plaintiff's brother who sold Young the drugs rather than ...

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