United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS OR FOR SUMMARY JUDGMENT
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the defendants'  Motion to Dismiss or for
Summary Judgment. Plaintiff Prentiss Fells has responded, and
the defendants have replied. After due consideration of the
submissions, it is the Court's opinon that there are no
questions of material fact for the jury. The defendants'
Motion will be granted and Plaintiff's claims against the
named Defendants dismissed pursuant to Fed.R.Civ.P. 56. The
claims against the John and Jane Doe Defendants will also be
dismissed, because the deadline for naming these parties has
in this case, the Court granted a motion to dismiss
Fells's original complaint, in which he alleged he was
arrested while at his job at Wal-Mart for possession of a
controlled substance. (Compl. 3, ECF No. 1-2). The possession
charges against Fells were brought after a small white bundle
containing cocaine was found on or near a computer keyboard
that surveillance video showed Fells had been using.
(Id. at 4). He was prosecuted and found not guilty
after a jury trial. (Id. at 3). He alleged claims
against the City of Gulfport and three police officers under
42 U.S.C. § 1983 for false detention and arrest,
malicious prosecution, and illegal search, plus a number of
state law claims: criminal conversion, common law civil
conspiracy, slander, libel, defamation, humiliation, and
negligent infliction of emotional distress. (Id. at
6-7). All of the claims were dismissed by the Court's
September 16, 2017  Memorandum Opinion and Order. Fells
was granted leave to file an amended complaint “that
cures the pleading deficiencies of any claim the Court herein
dismissed without prejudice within fourteen (14) days of the
entry of this Memorandum Opinion and Order.”
(See Mem. Op & Order 10, ECF No. 7).
filed an amended complaint in which he claims he was
“falsely detained, arrested, and maliciously prosecuted
by the Defendants, pursuant to State cause of action for
Malicious Prosecution and Federal claims pursuant Section
1983.” (Am. Compl. 9, ECF No. 8). The named Defendants
are the City of Gulfport, Mississippi, and Donald Ison and
Aaron Fore, in their individual and official capacities.
defendants seek dismissal or judgment as a matter of law as
to Fells' claims. The parties have submitted materials in
connection with the Motion that are not a part of the Amended
Complaint. The submission and consideration of evidence
extraneous to Plaintiff's complaint “would
ordinarily require the Court to convert the motion to dismiss
into a motion for summary judgment.” Horne v. Time
Warner Operations, Inc., 119 F.Supp.2d 624, 627 n.4
(S.D.Miss. 1999) (citing Fed.R.Civ.P. 12(b)). The Court has
considered and referred to the extraneous evidence provided.
Therefore this Motion will be analyzed under the summary
judgment legal standard of Fed.R.Civ.P. 56.
U.S.C. § 1983 Claims
initial matter, Fells was not granted leave to amend his
§ 1983 claims against Ison and Fore in their individual
capacities, as those claims were dismissed with prejudice
under Fed.R.Civ.P. 56. (See Mem. Op. & Order 6,
ECF No. 7). To the extent Fells attempts to bring § 1983
claims against Ison and Fore in their individual capacities
again, his attempt is without effect.
in order to bring viable § 1983 claims against the City
and the officers in their official capacities, Fells must
provide evidence of 1) a policymaker; 2) an official policy;
3) and a violation of constitutional rights whose moving
force is the policy or custom. Rayborn v. Bossier Par.
Sch. Bd., 881 F.3d 409, 416-17 (5th Cir. 2018)
(quotation marks and citations omitted). The City argues that
Fells shows neither an official policy nor a violation of his
Amended Complaint alleges that the City has failed to
establish a policy or procedure or training for the proper
handling and careful viewing of video evidence. (Am. Compl.
10, ECF No. 8). He argues that this is a policy to be
negligent - “to not take due care.” (Pl. Resp.
Mem. 5, ECF No. 12). Negligence is not the standard for a
§ 1983 claim until it reaches the level of deliberate
indifference. Showing deliberate indifference requires
showing “a pattern of violations and that the
inadequacy of the training is obvious and obviously likely to
result in a constitutional violation.” Goodman v.
Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)
(quotation marks and citation omitted). Fells does not
provide evidence of any other instances of Gulfport police
officers negligently viewing video tape evidence, but relies
only on his own experience. This is insufficient to show
either a policy or custom or deliberate indifference. See
Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th
Cir. 2009). Accordingly, the City's summary judgment
motion will be granted in regard to the § 1983 claims
against the City of Gulfport and the officers in their
State Law Claim of Malicious Prosecution
defendants argue that Fells' state-law malicious
prosecution claim is barred by the one-year statute of
limitations. See Miss. Code Ann. § 15-1-35. The
cause of action for a malicious prosecution claim accrues and
the statute of limitations begins to run when there is a
termination of the proceedings in the ...