United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING IN PART MOTION FOR SUMMARY
H. WALKER, UNITED STATES MAGISTRATE JUDGE
Donovan Jamal Willingham, proceeding pro se and
in forma pauperis, filed a 42 U.S.C. § 1983
civil rights complaint alleging that he was subjected to
excessive force during an arrest by former Biloxi Police
Department Officer David Archer. He also named Mayor FoFo
Gilich as a defendant based solely on Gilich's position
as mayor for the City of Biloxi. The Court conducted a
screening hearing on March 9, 2017. Defendants subsequently
filed a motion for summary judgment. Doc. . On November
16, 2017, the Court conducted a hearing on the motion for
summary judgment. See Minute Entry (11/16/2017).
Summary Judgment Standard
provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
138 (5th Cir. 2010). Where the summary judgment evidence
establishes that one of the essential elements of the
plaintiff's cause of action does not exist as a matter of
law, all other contested issues of fact are rendered
immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Topalin v. Ehrman, 954 F.2d 1125, 1138
(5th Cir. 1992). In making its determinations of fact on a
motion for summary judgment, the court must view the evidence
submitted by the parties in a light most favorable to the
non-moving party. McPherson v. Rankin, 736 F.2d 175,
178 (5th Cir. 1984).
moving party has the duty to demonstrate the lack of a
genuine issue of a material fact and the appropriateness of
judgment as a matter of law to prevail on its motion.
Union Planters Nat'l Leasing v. Woods, 687 F.2d
117 (5th Cir. 1982). The movant accomplishes this by
informing the court of the basis of its motion, and by
identifying portions of the record which highlight the
absence of genuine factual issues. Topalian, 954
F.2d at 1131. “Rule 56 contemplates a shifting burden:
the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burden of demonstrating
[entitlement to summary judgment].” John v. State
of Louisiana, 757 F.3d 698, 708 (5th Cir.
1985). Once a properly supported motion for summary judgment
is presented, the nonmoving party must rebut with
“significant probative” evidence. Ferguson v.
Nat'l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir.
respect to Defendant Gilich, the Court finds Defendants'
motion for summary judgment should be granted. At the
screening hearing, Plaintiff stated that he sued Defendant
Gilich because he is in charge of the City of Biloxi.
Plaintiff has failed to allege any personal involvement by
Defendant Gilich in the alleged use of excessive force.
See Oliver v. Scott, 276 F.3d 736, 742
(5th Cir. 2002); Woods v. Edwards, 51
F.3d 577, 583 (5th Cir. 1995). Consequently, the Court finds
the motion for summary judgment should be granted as to
Defendant Gilich and Plaintiff's claims against Defendant
Gilich should be dismissed with prejudice.
respect to Defendant Archer, Plaintiff asserts a claim for
excessive force during the arrest of September 19, 2013. For
an excessive force claim to prevail Plaintiff must show (1)
an injury; (2) which resulted directly and only from a use of
force that was clearly excessive; and (3) the excessiveness
of which was clearly unreasonable. Tarver v. City of
Edna, 410 F.3d 745, 751 (5th Cir. 2005). Moreover,
excessive force determinations usually turn on the issue of
whether the force was used as a good-faith measure to
maintain or restore discipline, or used maliciously and
sadistically to cause harm. Baldwin v. Stalder, 137
F.3d 836, 838 (5th Cir. 1998).
complaint, Plaintiff alleged that on September 19, 2013, he
was “brutally beaten” by Officer Archer incident
to an arrest. Doc.  at 4. At the screening hearing,
Plaintiff testified that Archer hit him several times in the
face and busted his eye. Plaintiff further stated that Archer
took him to the hospital emergency room for treatment of his
injuries. At the screening hearing and during the hearing on
summary judgment, Plaintiff insisted that Archer was the
officer who arrested him and beat him. He stated that he saw
Archer's name tag at the time of the incident.
presented summary judgment evidence indicating that Archer
was not the arresting officer and was not present at
Plaintiff's arrest on September 19, 2013. Doc. [34-1]
[34-2] [34-3]. Rather, Archer was the booking officer at the
police station on that day. Doc. [34-2] [34-3]. Defendants
also presented summary judgment evidence indicating that
Plaintiff presented no injuries and was not transported to
the hospital on September 19, 2013. Doc. [34-3] [34-4].
Nevertheless, Plaintiff's testimony creates a genuine
issue of material fact on the question of the arresting
officer's identity and whether that officer used
excessive force against Plaintiff. Plaintiff's testimony
contradicts the records and affidavits presented by
Defendants. This matter is currently set for a bench trial
scheduled for January 18, 2018, to resolve any factual
THEREFORE ORDERED AND ADJUDGED that Defendants' 
Motion for Summary Judgment is GRANTED in part and DENIED in
part. The motion is granted such that Plaintiff's claims