United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
H. WALKER, UNITED STATES MAGISTRATE JUDGE
the Court is  the June 1, 2018 motion to dismiss or for
summary judgment filed by Defendants Van McClendon and Naomi
Pettis in this prisoner civil rights action filed by
Plaintiff Trabis Bailey on May 3, 2017. Deputies McClendon
and Pettis are employees of the Harrison County Sheriff39;s
Department. Pettis is the Classification/Booking officer at
the Harrison County Adult Detention Center (HCADC). The
present motion seeks dismissal of the complaint under
Fed.R.Civ.P. 12 or Fed.R.Civ.P. 5');">56 - Deputy McClendon urges
Plaintiff Trabis Bailey39;s complaint fails to state a
claim as to him, and both officers contend they are entitled
to qualified immunity. Bailey filed no response to the
motion. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P.
73, all parties have consented to the exercise of
jurisdiction by the United States Magistrate Judge, and the
case was reassigned to the undersigned for all purposes.
, [35');">5] Exhibits to the Deputies39; motion include
Bailey39;s complaint [37-1], his response to a Court order
requiring more information [37-2], a September 3, 2017
Gulfport Municipal Court Judgment on Plea [37-3], Deputy
Pettis39; affidavit with accompanying classification record
assessment for Bailey [37-4], and the transcript of the April
11, 2018 Spears/omnibus hearing [37-5');">5].
and Procedural History
facts are derived from Bailey39;s pleadings and testimony
at the April 2018 hearing and the Deputies39; exhibits to
their motion.  After completing a seven-year prison
sentence in February 2014, Bailey lived in New Orleans, where
he worked at a sugar factory and “subcontracting”
with the State of Louisiana cutting grass and picking up
paper, keeping the highways clean. [37-5');">5, pp. 5');">5-9] On September
2, 2015');">5 between 7:00 a.m. and 7:30 a.m., as he picked up
trash along Highway 90 in Louisiana, a snake bit his hand.
Bailey stated he killed the snake with the machete he was
using to cut weeds, and headed for Memorial Hospital in
Gulfport, Mississippi, because he was giving some men a ride
to the port in Gulfport. Bailey was driving a school bus - a
“work bus” he had taken from the work site.
Van McClendon stopped Bailey based on a report of erratic
driving, and while McClendon was in his car checking out the
information Bailey provided, Gulfport Police Officer
Christian Oatis arrived, and took charge of the situation,
ultimately arresting Bailey. [37-5');">5, pp. 9-15');">5, 5');">56-60] Bailey
was subsequently indicted for felony receiving stolen
property - the bus had been reported stolen, although Bailey
says he bought it from a guy the day before. Bailey was also
charged with, and pled guilty to, misdemeanors of providing
false information, [3" name="FN3" id=
"FN3">3] resisting arrest by flight, and disorderly
conduct-fail to comply (with orders of an officer). [37-5');">5,
pp. 16, 61-67], [37-3] Bailey admitted all his complaints
about Oatis39;s actions involved the charges of which he
now stands convicted by virtue of his guilty pleas. [37-5');">5,
pp. 75');">5-76] On May 16, 2018, the Court granted Officer
Oatis39; motion for summary judgment.  Only
Bailey39;s claims against McClendon and Pettis remain.
to Bailey, by the time McClendon pulled him over, it had
already been 30-45');">5 minutes since the snake bit him. When he
was arrested, his hand was not bleeding, he just had a
puncture, “You couldn39;t really tell nothing was
wrong at the time.” [37-5');">5, pp. 25');">5, 69]
the arrest, Officer Oatis took Bailey to jail. Deputy Naomi
Pettis, the HCADC classification/booking officer, met with
Bailey at the jail, for the review and execution of his
Classification Record/Assessment which among other things,
involves providing inmates information on how to request
medical treatment. Bailey testified he asked to go to medical
but was told the booking officer could not give him medical
attention. Pettis39;s affidavit states she is not
responsible for medical treatment of inmates at the jail, and
Bailey has presented no evidence to the contrary. Bailey
admittedly did not cooperate with Pettis and refused to sign
the assessment form. [37-4], [37-5');">5, p. 40]
matters outside the pleadings have been presented and
considered by the Court, the Deputies39; motion is
considered as one for summary judgment. Under Fed.R.Civ.P.
5');">56., summary judgment is required where there is no genuine
dispute as to any material fact and movants are entitled to
judgment as a matter of law. A genuine dispute of material
fact exists “only where a reasonable jury could look at
the evidence and return a verdict for the non-movant.”
Johnson et al. v. Thibodeaux City et al., No.
17-30088 (5');">5th Cir. April 17, 2018) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). On a
motion for summary judgment, the Court views the evidence and
draws reasonable inferences most favorable to the non-moving
party. Abarca v. Metropolitan Transit Authority, 404
F.3d 938, 940 (5');">5th Cir. 2005');">5). Factual controversies are to
be resolved in favor of the non-movant, “but only when
... both parties have submitted evidence of contradictory
facts.” Amerson v. Pike Cty., Miss., No.
3:09cv5');">53-DPJ-FKB, 2012 WL 96805');">58, at *2 (S.D.Miss. Mar. 21,
2012) (citing Little v. Liquid Air Corp., 37 F.3d
1069, 1075');">5 (5');">5th Cir. 1994)). The burden of proof at the
summary judgment stage rests on the party who has the burden
of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986).
summary judgment movant must identify those portions of the
pleadings and discovery on file and any affidavits he/she
believes demonstrate the absence of a genuine issue of
material fact. Id., at 325');">5. Once movants carry that
burden, the non-movant must show summary judgment should not
be granted, a burden he cannot meet by resting upon mere
allegations or denials. The non-movant must set forth
specific facts showing a genuine issue for trial by either
submitting opposing evidentiary documents or referring to
evidentiary documents already in the record which show the
existence of a genuine issue of material fact.
Celotex, 477 U.S. at 324-325');">5; Reese v.
Anderson, 926 F.2d 494, 498 (5');">5th Cir. 1991); Howard
v. City of Greenwood, 3 F.2d 1311');">783 F.2d 1311, 1315');">5 (5');">5th Cir.
1986) (non-movant “must counter factual allegations by
the moving party with specific, factual disputes; mere
general allegations are not a sufficient response.”).
See also, Duffie v. United States, 600 F.3d
362, 371 (5');">5th Cir.2010). If the party with the burden of
proof cannot produce evidence on an essential element of his
claim, summary judgment is required. Geiserman v.
MacDonald, 3 F.2d 787');">893 F.2d 787, 793 (5');">5th Cir. 1990). The Court
does not “assume that the nonmoving party could or
would prove the necessary facts.” Little v. Liquid
Air, 37 F.3d at 1075');">5. Conclusory allegations,
unsubstantiated assertions or the presence of a scintilla of
evidence, will not suffice to create a real controversy
regarding material facts. Johnson v. Bernstein, 5');">547
Fed.Appx. 412, 413 (5');">5th Cir. 2013) (citing Hathaway v.
Bazany, 5');">507 F.3d 312');">5');">507 F.3d 312, 319 (5');">5th Cir. 2007)); Hopper
v. Frank, 3d 92');">16 F.3d 92, 97-98 (5');">5th Cir. 1994); Davis
v. Chevron U.S.A., Inc., 3d 1082');">14 F.3d 1082, 1086 (5');">5th Cir.
McClendon first argues Bailey has failed to state a claim
against him upon which relief can be granted. According to
Bailey39;s testimony, McClendon was courteous and
professional when he stopped him, and the only reason he sued
McClendon is because he turned the matter over to Officer
Oatis when he arrived on the scene. Bailey specifically
stated McClendon had nothing to do with his medical care
complaint. [37-5');">5, pp. 24, 29-30] The Court is of the opinion
that the facts alleged do not state a constitutional claim
against McClendon, but the Court finds qualified immunity
would protect McClendon from suit even if that were not the
case. Both McClendon and Pettis have invoked the protection
of qualified immunity.
officers can be sued for damages under § 1983 in their
individual capacities, even though the claim may arise out of
official responsibilities; however, they “are entitled
to assert the defense of qualified immunity for all acts and
omissions that occur in the course of their official
duties.” Gagne v. City of Galveston, 805');">5 F.2d
5');">55');">58, 5');">55');">59 (5');">5th Cir. 1986). Qualified immunity protects
government officials from liability for civil damages unless
their conduct violates “clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 5');">55');">55');">5 U.S.
223, 231 (2009) (citing Harlow v. Fitzgerald, 45');">57
U.S. 800, 818 (1982)). The doctrine entitles an officer
“not to stand trial or face the other burdens of
litigation.” Mitchell v. Forsyth, 472 U.S.
5');">511, 5');">526 (1985');">5); Geter v. Fortenberry, 849 F.2d
15');">55');">50, 15');">55');">52 (5');">5th Cir. 1988) (qualified immunity is
“immunity from suit, not simply immunity from
liability”). The doctrine of qualified immunity strikes
a balance between the need to hold accountable public
officials who exercise power irresponsibly, and the need to
shield from harassment, distraction and liability those
officials who perform their duties reasonably. In considering
a qualified immunity claim, the Court must determine (1)
“whether the facts alleged, taken in the light most
favorable to the party asserting the injury, show the
officer39;s conduct violated a constitutional right”
and (2) “whether the right was clearly established -
that is, whether ‘it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.39;” Price v. Roark, 25');">56 F.3d
364, 369 (5');">5th Cir. 2001) (citing Saucier v. Katz,
5');">533 U.S. 194');">5');">533 U.S. 194, 201 (2001)); see also McClendon v. City of
Columbia, 305');">5 F.3d 314');">305');">5 F.3d 314, 322-23 (5');">5th Cir. 2002). When the
allegations fail to establish an officer violated a
constitutional right, the officer is entitled to qualified
immunity; if the allegations could make out a constitutional
violation, the Court must determine whether the right was
clearly established, i.e., whether it would be clear
to a reasonable officer that his conduct was unlawful in the
circumstances then existing. Price, 25');">56 F.3d at 369.
“Even if an official39;s conduct violates a
constitutional right, [he] is entitled to qualified immunity
if the conduct was objectively reasonable.” Salas
v. Carpenter, 980 F.2d 299, 310 (5');">5th Cir. 1992).
“If reasonable public officials could differ on the
lawfulness of the defendant39;s actions, the defendant is
entitled to immunity.” Id. (citing White
v. Taylor, 5');">59 F.2d 5');">539');">95');">59 F.2d 5');">539, 5');">544 (5');">5th Cir. 1992)). Qualified
immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v.
Briggs, 5');">5 U.S. 335');">5');">475');">5 U.S. 335');">5, 341 (1986).
qualified immunity is “nominally an affirmative
defense, ” once it is properly raised, the burden is on
the Plaintiff to negate the defense. Poole v. City of
Shreveport,3d 624');">691 F.3d 624, 627 (5');">5th Cir. 2012). When a
governmental official pleads qualified immunity, the
Plaintiff must “rebut the ... defense by establishing
that the official's allegedly wrongful conduct violated
clearly established law.” Estate of Davis v. City
of North Richland Hills, 3d 375');">5');">406 F.3d 375');">5, 380 (5');">5th Cir.
2005');">5). The official is not required to demonstrate he did not
violate clearly established federal rights. Id.;
Salas, 980 F.2d at 306. Bailey has presented nothing
to show he had a right to have Deputy McClendon remain in