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Jackson v. Town of Tutwiler

United States District Court, N.D. Mississippi, Oxford Division

November 16, 2018




         The parties have filed various motions in the above-entitled action. This court, having considered the memoranda and submissions of the parties, is prepared to rule.

         This is, inter alia, an Eighth Amendment cruel and unusual punishment case arising out of two separate incidents in which plaintiff Cortez Martin claims to have been forced by police officers and other municipal employees of the Town of Tutwiler to perform in unsafe and humiliating spectacles against his will, while he was performing community service following a conviction. Plaintiff, who was nineteen years old at the time of relevant events, asserts that he is a mentally disabled individual who, the record reveals, was adjudicated incompetent by a chancery court judge in 2015. [Plaintiff's exhibit 2 at 1]. In his complaint, plaintiff seeks recovery arising out of 1) a January 27, 2012 boxing contest between himself and police officer Jimmy Johnson and 2) a February 4, 2012 incident in which he was forced to ingest a large amount of cinnamon, as part of a so-called “cinnamon challenge.” These incidents were videotaped and posted on social media, and plaintiff claims that this subjected him to further humiliation.

         The Town notes that, as soon as it learned about these incidents, its Board of Aldermen called an Executive Session special meeting on February 14, 2012 to investigate them. At that meeting, the Board conducted interviews of the individual defendants and the Chief of Police, Terry Tyler, regarding their involvement. Based on the admitted participation of the individual defendants, a motion was made and passed by the Board to immediately terminate the individual defendants and Chief Tyler. Plaintiff subsequently filed the instant action in this court, and this matter is scheduled to be tried before a jury in February 2019. The parties have filed various motions in this case, which this court will presently address.

         This court first considers plaintiff's motion for default judgment against the individual defendants Jimmy Johnson, Bobby Banks, Jr., and Angelia Chandler. In that motion, plaintiff writes that:

The movant will show that she is entitled to a default judgment in this action as the aforenamed Defendants have been duly served with a summons issued by the clerk of the court and a copy of the complaint filed herein, and further that the said Defendants are not infants or un-represented incompetent persons, and that the said Defendants have failed to plead or otherwise defend, and finally that the said Defendants have entered no appearance or otherwise initiated any proceedings in this action.

         No party has responded in opposition to plaintiff's motion, and the only factor which gives this court pause in granting it is that it was filed over one month past the deadline set by Magistrate Judge Virden in a show cause order which she issued to plaintiff. When this court, through its staff, notified plaintiff's counsel of his failure in this regard, counsel “apologized profusely” and stated that he was unaware of Judge Virden's order. It is unclear why counsel would be unaware of a show cause order posted on the docket, but, considering that no party has objected to the default judgment being entered, this court will reluctantly grant plaintiff's motion.

         In granting the motion for default judgment, this court is motivated largely by the fact that this case involves allegations of serious constitutional violations, and, if none of these three individual defendants have seen fit to defend themselves, then this court is reluctant to grant them the windfall of a dismissal based upon an oversight by plaintiff's counsel. Plaintiff does not address the issue of damages in his motion, but this court presently intends to consider this issue in a hearing to be held after the trial in this case. This will allow this court to benefit from the evidence presented at trial in assessing any compensatory and/or punitive damages against the defaulting defendants.

         Having addressed the status of the defaulting individual defendants, this court will now address the motion for summary judgment filed by the Town of Tutwiler. In its summary judgment motion, the Town has sought dismissal of all claims asserted against it, including state law negligence claims, Fifth and Fourteenth Amendment due process claims, and Eight Amendment cruel and unusual punishment claims. In responding to the Town's motion, plaintiff has chosen only to address his Eighth Amendment claims, and defendant correctly argues that, as a result, he has conceded its other arguments, which strike this court as being meritorious. Indeed, it appears to this court that the Eighth Amendment constitutes the proper framework for considering the claims in this case, inasmuch as all parties agree that, at the time he was injured, plaintiff was in police custody while performing community service for a prior conviction. Moreover, plaintiff has offered no arguments in opposition to defendants' contention that he failed to comply with the procedural and substantive requisites of the Mississippi Tort Claims Act (MTCA) before asserting state law claims against it. This court will therefore concentrate solely upon plaintiff's Eighth Amendment claims in this order, and defendant's motion to dismiss the remaining claims will be granted.

         In seeking summary judgment, the Town first makes a rather equivocal argument that, even accepting plaintiff's version of the facts as true, the two incidents in this case were not sufficiently serious to constitute an Eighth Amendment violation. Specifically, the Town argues that “[w]hile the boxing match and the ‘cinnamon challenge' were unquestionably inappropriate and lacked due care for Martin's safety, it is far from clear that either incident constituted the type of cruel and unusual punishment contemplated by the Eighth Amendment.” [Brief at 7-8]. Defendant thus argues that it is “far from clear” that an Eighth Amendment violation occurred in this case, but, accepting plaintiff's version of the facts as accurate, then it must disagree.

         To establish an Eighth Amendment violation, the plaintiff must prove objectively that he was exposed to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Additionally, the plaintiff must show that jail officials (or, in this case, supervising officers) acted or failed to act with deliberate indifference to that risk. Id. at 834, 114 S.Ct. 1970. Having viewed the video of the incidents, this court concludes that the boxing match in particular meets this standard, given the serious blows which were inflicted upon plaintiff by Officer Johnson, a much larger and older opponent. While the “cinnamon challenge” presents a closer issue in this context, this court is inclined to allow the jury to determine this issue as well. In so stating, this court notes that the video depicts the plaintiff running to a sink and retching after attempting to ingest the cinnamon, and it thus appears that this activity may well involve a substantial risk of choking. Moreover, it seems clear that both incidents were so utterly devoid of any valid law enforcement or punitive purpose as to greatly assist plaintiff in demonstrating deliberate indifference.

         While the video does depict Cortez smiling and seemingly enjoying himself at certain parts of the incidents, he insisted in his deposition that he initially refused to participate in them. Indeed, defendant only argues that Cortez consented to a continuation of the boxing match after it had already begun. [Brief at 8]. This argument seems less than compelling, considering that the incidents should never have occurred in the first place, considering that plaintiff had, by his account, initially refused to participate. Indeed, it strikes this court that conducting these sort of spectacles would not even occur to a responsible law enforcement officer in the first place, given that plaintiff was there to perform community service, not to entertain officers. The Town evidently agrees, given that it fired the officers involved.

         The Town argues that any damages suffered by Cortez in this case were de minimis, but, having viewed the video, this court certainly believes that plaintiff has established fact issues regarding significant injuries arising from the boxing contest. The Town argues that plaintiff's only objectively-visible injuries were a knot on his head, but the video reveals that Cortez received numerous heavy blows to his head which, in the court's view, carried a substantial risk of concussion or other brain injuries. This court recognizes that the Town has a stronger argument that any damages arising from the cinnamon challenge were not sufficiently serious, and, for this reason, it is inclined to have the jury assess damages for the two incidents separately. That way, if the Fifth Circuit should decide that the cinnamon challenge gave rise to purely de minimus damages or that it did not involve an Eighth Amendment violation at all, then it can simply strike any damages in that context, without requiring a full retrial on damages.[1] For similar reasons, this court intends to have the jury make separate factual findings regarding whether Chief Tyler was present at the boxing match and the cinnamon challenge, thereby facilitating post-verdict review in this context.

         With the above caveats, this court concludes that plaintiff has established fact issues regarding whether he suffered an Eighth Amendment violation in this case, and it will now turn to the issue of whether the Town may be held liable for the actions of its officers in this case. The Town's briefing makes it clear that its municipal liability argument is its primary one in this case, and this court acknowledges that federal law does, in fact, make it quite difficult for plaintiffs to recover against municipalities in § 1983 cases. Indeed, in its seminal 1978 decision in Monell v. Department of Social Services, 436 U.S. 658 (1978), the U.S. Supreme Court held that municipalities may only be held liable for their own constitutional violations, and it made clear that they may not be held vicariously liable for any violations by their employees.[2]

         It is well settled that, under the Monell framework, a municipality may be held liable for its own formal policy decisions, or alternatively, by demonstrating that it had an informal policy or custom of committing a particular constitutional violation. Monell, 436 U.S. at 659. In his brief, plaintiff concedes that the Town had no formal policy in favor of “violat[ing] the civil rights of helpless handicapped children, ” but he argues that it had a “custom” of doing so. Specifically, plaintiff argues that:

In the Town of Tutwiler in the early part of 2012 it was customary to violate the civil rights of helpless handicapped children. Upon a showing of such a custom, a municipality may be held liable under the provisions of 42 U.S.C. § 1983. Brown v. the City of Hazlehurst, 741 So.2d 981 (Miss. App. 1999). This custom is evidenced by the images and narrative depicted on Exhibit 5, is described by Cortez in his deposition, and by Felicia in her affidavit. And the factual evidence is supported by the opinions of the plaintiff's experts, thereby meeting the plaintiff's burden of to identify a policy or custom that resulted in Cortez's injuries.

[Plaintiff's brief at 7].

         As best this court can discern, there is little, if any, factual support for this argument. Indeed, this passage is typical of plaintiff's brief as a whole, in which his counsel repeatedly makes reference to entire exhibits and depositions and would apparently have this court guess regarding which portions of the proof he is referring. This is clearly improper, particularly in the present legal context, which imposes such a difficult burden of proof on the plaintiff. Indeed, while “a pattern of unconstitutional conduct” by “municipal actors or employees” may give rise to municipal liability in some circumstances, see Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010), this is an exceedingly difficult burden for plaintiffs to meet. The Fifth Circuit has held that establishing such a pattern or custom requires “sufficiently numerous prior incidents[, ]” and these prior incidents must be both similar and specific to the alleged violation in question. See, e.g., Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850-51 (5th Cir. 2009). Clearly, this is a very stringent standard which, in this court's experience, very few plaintiffs are able to meet.

         Having reviewed the depositions and exhibits cited above, including the views of plaintiff's experts, this court concludes that he has not even come close to establishing that the City had an unofficial policy in favor of “violat[ing] the civil rights of helpless handicapped children.” In arguing otherwise, plaintiff repeatedly relies upon the improper treatment which was inflicted upon him, but, the relevant standards in this context require, once again, “sufficiently numerous prior incidents.” In the court's view, two incidents involving only the plaintiff do not suffice in this regard. If plaintiff is aware of any other such incidents involving the abuse of “handicapped children, ” then he should have specifically pointed them out in his briefing, but he failed to do so. Moreover, this court has reviewed the views and reports of plaintiff's experts, and they strike it as being highly conclusory and of virtually no assistance in deciding the Eighth Amendment issues in this case.

         This court therefore concludes that plaintiff has failed to demonstrate that any constitutional violation he suffered was the result of an unofficial Town custom or policy, and it turns to the one argument which, in its view, might potentially allow plaintiff to recover against the Town in this case. Specifically, this court is inclined to agree with plaintiff that, assuming that Chief Tyler was physically present at the boxing match and/or cinnamon challenge, and did nothing to stop them, then his own status as the final policymaker for the Town might well subject it to liability. This court emphasizes, however, that this theory of liability depends upon the jury accepting plaintiff's testimony regarding a fact which is very much disputed by defendant. That fact, which this court regards as the crucial fact issue of this case, involves the question of whether Chief Tyler was personally present for the boxing match and/or cinnamon challenge. In his deposition, plaintiff testified that Tyler was present at both events, and, in its reply brief, the Town appears to acknowledge that this contention gives rise to a disputed fact issue. This court agrees, but it is worth emphasizing that defendant Jimmy Johnson, the police officer against whom plaintiff boxed, unequivocally stated in an affidavit that:

4. As Cortez Martin was joking around with me about boxing him, I put on a separate pair of boxing gloves and engaged in a boxing match with him, which was recorded by Bobby Banks, Jr. I was off duty from the TPD when the boxing match occurred and no one from the TPD, other than Bobby Banks, Jr., knew that the boxing match was taking place and did not condone it. No. other official from the Town of Tutwiler knew ...

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