United States District Court, N.D. Mississippi, Aberdeen Division
before this court are Defendants Lowndes County and Bobby
Reeves' motion  for summary judgment and Defendant
Steve Scott's motion  for summary judgment. Having
considered the motions the Court finds that they should be
granted in part and denied in part.
and Procedural Background
matter, Plaintiff Dennis Wilkerson seeks to recover against
Defendants for seizing horses he owns and keeps at his
stables in Lowndes County, Mississippi. Defendant Bobby
Reeves is an animal control officer with the Lowndes County
Sherriff s Department. Defendant Steve Scott is an animal
control officer with the City of Columbus, located in Lowndes
County. Pursuant to an agreement between the county and the
city, the two partnered together to provide animal control
services over the entirety of Lowndes County.
March 2014, Scott received a call from a woman who relayed to
him a complaint from an anonymous source that some of the
horses Wilkerson kept looked emaciated. Dep. of Steve Scott
("Scott Dep.") [50-4], at p. 11. As a result of the
call, Reeves and Scott went to Wilkerson's property to
check on the horses. Id. at p. 17-20.
arrived at the property, where they found Wilkerson. Dep. of
Bobby Reeves ("Reeves Dep.") [50-3], at p. 29.
Wilkerson proceeded to show the two the horses and his
property, including water stations for the horses and a barn
containing hay. Id. at 29, 32-33; Scott Dep. at p.
24, 61-64. Scott took photographs of the horses while they
were examining them. Id. Wilkerson admits that some
of the horses were underweight at the time Reeves and Scott
were at his property. Dep. of Dennis Wilkerson
("Wilkerson Dep.") [50-2] at p. 231. Reeves also
claims he noticed that one horse had visible swelling on its
scrotum. Reeves Dep. at 72. While they were being shown the
property and horses, Scott asked Wilkerson questions about
how Wilkerson fed the horses. Scott Dep. at p. 23-24.
Wilkerson took offense to the manner in which Scott asked the
questions. Wilkerson Dep. at p. 207-208. Wilkerson told
Reeves that "If [Scott] pops off to me one more time,
y'all can get off of my place." A/, at 211.
According to Wilkerson, Scott then said that if he wanted he
could come back with trailers and take all the horses.
Id. at 211 -12. Wilkerson responded that if they did
return that they "better have a court order."
Id. at 212.
to Scott, the next day he visited Dr. Kerry Blanton, the
veterinarian who Wilkerson told him had vetted the animals.
Scott Dep. at 30. Scott asked Dr. Blanton about any potential
infectious diseases that the horses might have been suffering
from, because, according to Scott, Wilkerson had specifically
stated that he was concerned that the horse with the swollen
scrotum had some infectious disease. Id. at 30-31.
Scott testified that Blanton told him that she had looked at
the horse one evening while at a party at Wilkerson's
house, but had not diagnosed the issue. Id. at 30.
Wilkerson contends that Scott was aware that the swelling was
caused by a noninfectious edema.
days after Reeves and Scott went to Wilkerson's property,
Reeves filed an affidavit in the Lowndes County Justice
Court, which read as follows:
Before me, Peg Mordecai, Justice Court DC/Judge of said
County Bobby Reeves whose address is Lowndes County S.O.,
makes affidavit that on or about the 26 day of March 2014,
Dennis Wilkerson whose address is 1296 Stanley Road
Caledonia, MS, did willfully and unlawfully confine in a
pasture, several horses, emaciated horses, that were deprived
of proper substance [sic], i.e. hay, water, grain, medical
care, in violation of section 97-41-2 To Wit:
Approximately 20-25 horses to be seized by the Lowndes County
Court File [50-7], at p. 2. Afterwards, Reeves spoke to the
Justice Court Judge Chris Hemphill about the condition of the
horses, including the possibility of the presence of
infectious disease in the horses. Reeves Dep. at p.
Hemphill then entered an order finding that, after
considering "eyewitness accounts and photographic
evidence as well as admissions made to [Bobby Reeves] by
Dennis Wilkerson, " probable cause had been established
pursuant to Miss. Code Ann. § 97-41-2 that the horses
were "being neglected due to a failure to provide
sufficient food and/or medical care..." Justice Court
File at p. 4 the order appointed Lowndes County as temporary
custodian of all the horses on Wilkerson's property.
Because of concerns of infectious disease, the order
permitted the horses to actually remain at Wilkerson's
property, pending a hearing to determine whether the horses
should ultimately be forfeited. Justice Court File at p. 4-5.
the time between the seizure and the hearing, Lowndes County
hired Dr. Allen Etheridge, a veterinarian, to assess the
condition of the horses. Dep. of Allen Etheridge
("Etheridge Dep.")[50-5] at p. 29-31. Etheridge
assigned each of the horses a Body Condition Score between
1.0 and 9.0, Expert Opinion of Allen Etheridge
("Etheridge Op.")[50-6] at p. 9. According to a
description of scores attached to Dr. Etheridge's
opinion, a score of 1 meant the horse was "extremely
emaciated" while a score of 9 meant the horse was
extremely fat" Id. at 13-14 Of the 24 horses in
Wilkerson's care, Dr. Etheridge assigned 10 of them a
score below 3.0. Id. at 9. Three of the horses were
assigned a score below 2.0, which according to Dr. Etheridge
meant "they were in critical condition and in imminent
danger of death. Further it implies there was little, if any
fat left in the horses." Id.
subsequent hearing, after being presented with further
evidence regarding the condition of the horses, Judge
Hemphill found that the horses should be returned to the
custody of Wilkerson. Justice Court File at p. 5-6.
Accordingly to Judge Hemphill this was because 1) the winter
of 2013-2014 had been especially harsh; 2) Wilkerson had not
"intentionally" neglected any of the horses; and 3)
Wilkerson was willing able to provide adequately for the
horses. Id. Custody of the horses was returned to
subsequently brought this suit against the defendants
alleging that Reeves and Scott violated his Fourth Amendment
rights by providing false testimony and withholding
exculpatory evidence from the Justice Court Judge in order to
obtain the seizure order without probable cause. Wilkerson
also alleges that Reeves and Scott did so to retaliate
against Wilkerson in violation of his First Amendment rights.
Finally, Wilkerson alleges state law claims of abuse of
process and conversion.
judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Fed. R. Civ. P. 56(a); Johnston &
Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561
(5th Cir. 2013). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a sufficient showing to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp., 477
U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 323, 106 S.Ct. 2548.
"An issue of fact is material only if its resolution
could affect the outcome of the action." DeBlanc v.
St. Tammany Par. Sch. Bd, 640 Fed.App'x 308, 312
(5th Cir. 2016) (per curiam) (quoting Manning v. Chevron
Chem. Co., LLC, 332 F.3d 874, 877 (5th Cir. 2003)
(quoting Wyatt v. Hunt Plywood Co., 297 F.3d 405,
408 (5th Cir. 2002) (internal quotation marks omitted))).
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by... affidavits, or by the
'depositions, answers to interrogatories, and admissions
on file, ' designate 'specific facts showing that
there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324, 106 S.Ct. 2548;
Littlefield v. Forney Indep. Sch Dist, 268 F.3d 275,
282 (5th Cir. 2001); Willis v. Roche Biomedical Labs.,
Inc., 61 F.3d 313, 315 (5th Cir. 1995). The Court
"'resolve[s] factual controversies in favor of the
nonmoving party, but only where there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.'" Thomas v.
Baldwin, 595 Fed.App'x. 378, 378 (5th Cir. 2014)
(per curiam) (quoting Antoine v. First Student,
Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal
quotation marks and citation omitted)). "[T]he nonmoving
party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla
of evidence.'" Id. at 380 (quoting
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
makes the following claims: three § 1983 claims against
Reeves and Scott for violating for First, Fourth, and
Fourteenth Amendment rights; an state law abuse of process
claim against Reeves, Scott, and Lowndes County; and a state
law conversion claim against Reeves, Scott, and Lowndes
County. The Court will first analyze the Fourth Amendment
claim, because the Court's determination of the validity
of the seizure order will affect Wilkerson's other
Fourth Amendment Claim
also alleges that the Reeves and Scott violated his Fourth
Amendment rights by providing materially false information
and failing to provide exculpatory evidence to the judge in
order to obtain the seizure order. Specifically, Wilkerson
alleges that Reeves and Scott falsely told the judge that the
horses were not being fed and that some of the horses may be
exposed to infectious disease. Wilkerson also alleges that
the Defendants failed to inform the judge that many of the
horses were in good health. Wilkerson also alleges that the
Defendants knew there was no evidence that Wilkerson
intentionally cruelly treated, neglected, or abandoned the
animals. Thus, they were unjustified in seeking the seizure
order in the first place.
argue they are entitled to summary judgment for several
reasons. First, they argue that the horses were not actually
"seized" because they were not removed from
Wilkerson's property. Second, they argue they are
entitled to qualified immunity because the seizure order was
not obtained through materially false information. Third,
they argue that by presenting the evidence to an
"independent intermediary, " their actions did not
cause the seizure order to be issued. Finally, they argue
that it was not clearly established that they needed evidence
that each horse was being mistreated in order to seize all of
first argue that because the horses were never actually
removed from Wilkerson's property they were never
"seized." That argument is not well-taken. "A
seizure of property occurs when there is 'some meaningful
interference with an individual's possessory interests in
that property.'" Morris v. Livingston, 739
F.3d 740, 751 (5th Cir. 2014) (quoting United States v.
Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d
85 (1984)). The seizure order makes clear that the Lowndes
County Sheriffs Department was granted temporary possession
of the horses, that the Department had a right to access the
horses without Wilkerson's permission, and that it was
within the Department's discretion to determine where the
horses should be kept. Justice Court File at p. 3-6. Had
Wilkerson attempted to remove horses from the property or
prevented the Department from accessing the horses, he would
have been in violation of the order. Thus, there was
meaningful interference with his possessory interest in the
horses. The horses were "seized" for the purposes
of the Fourth Amendment.
the Court must determine whether Defendants are entitled to
qualified immunity. "'[A] plaintiff seeking to
defeat qualified immunity must show: "(1) that the
official violated a statutory or constitutional right, and
(2) that the right was 'clearly established' at the
time of the challenged conduct.'"" Da Vinci
Inv., Ltd. P 'ship v. Parker, 622 Fed.Appx. 367, 374
(5th Cir. 2015) (per curiam) (quoting Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)
(quoting al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074)).
"A Government official's conduct violates clearly
established law when, at the time of the challenged conduct,
'[t]he contours of [a] right [are] sufficiently
clear' that every 'reasonable official would have
understood that what he is doing violates that
right.'" Ashcroft v. al-Kidd, 563 U.S. 731,
741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (alterations in
original) (quoting Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
clearly established that a Fourth Amendment violation occurs
when an officer secures a warrant by providing false
information knowingly or with reckless disregard for the
truth. Freeman v. Cnty. Of Bexar, 210 F.3d 550, 553
(5th Cir. 2000) (citing Franks v. Delaware, 438 U.S.
154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978))).
"[I]ntentional misrepresentations in warrant
applications and material omissions from the same may give
rise to Fourth Amendment claim." Johnson v.
Norcross, 565 Fed.Appx. 287, 289 (5th Cir. 2014) (citing
Kohler v. Englade, 470 F.3d 1104, 1113-14 (5th Cir.
to prevail, Defendants must show that there is no genuine
issue of material fact whether 1) Defendants included
materially false evidence or knowingly or recklessly omitted
exculpatory evidence in obtaining the seizure order; or 2)
without the evidence, probable cause would not have been
established. Johnson, 565 Fed.Appx. ...