United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS OF
MAGISTRATE JUDGE MICHAEL T. PARKER
Bramlette United States District Judge.
MATTER is before the Court on Defendant Patten's Motion
(Doc. 76) for Summary Judgment, Defendant Mackel's Motion
(Doc. 79) for Summary Judgment, and United States Magistrate
Judge Michael T. Parker's Report and Recommendation (Doc.
92). Having reviewed the Plaintiff's complaint and
Defendants Patten and Mackel's Motions for Summary
Judgment, the Court agrees that the Motions  and  be
Mills, proceeding pro se and in forma
pauperis, was incarcerated at the Adams county Jail but
has since been released and lives in Natchez, Mississippi.
Mills sues Mackel under 42 U.S.C. §1983, claiming that
Mackel - at the time a deputy with the Adams County
Sheriff's Department - entered the Plaintiff's home,
held a gun to his head, raped him, and inserted an object
into his anus.
sues Patten - Sheriff of the Adams County Sheriff's
Department - under 42 U.S.C. §1983, claiming that Patten
used excessive force against Mills. The day after the alleged
rape, Mills' wife called the police because she noticed
that Mills had cut his wrists with a razor. Patten responded
to prevent the Plaintiff's self-harm. When Patten
arrived, Mills had locked himself in the bathroom and was
continuing to cut himself. Defendant Patten broke down the
door to the bathroom and tased Mills before subduing him and
taking Mills to the hospital for treatment.
November 1, 2018, Defendants Mackel and Patten each filed a
Motion for Summary Judgment (Doc. 79) and (Doc. 76).
Magistrate Judge Parker filed his Report and Recommendation
on July 16, 2019. At that time, the Plaintiff had failed to
respond to either Defendant's Motion for Summary
Judgment. Objections to the Report and Recommendation were
due on July 30, 2019. The Plaintiff, instead of filing an
objection to the Report and Recommendation, filed a Motion
for an Extension of Time to File a Response (Doc. 99) and
then a Response in Opposition of the Motion for Summary
Judgment (Doc. 101). This Court addresses those Motions in a
Judge Parker recommends that Mackel's Motion for Summary
Judgment should be entered, noting that the Plaintiff did not
allege that Defendant Mackel acted under color of state law
when he allegedly raped Plaintiff. A §1983 claim
requires that the Defendant acted with the authority of state
law. See Doe v. Columbia-Brazoria Indep. Sch. Dist. By
& through Bd. Of Trustees, 855, F.3d 681, 687 (5th
Cir. 2017)(quoting James v. Texas Collin Cnty., 535
F.3d 365, 373 (5th Cir. 2008)).
as Magistrate Judge Parker writes, “There is no nexus
between the rape and Defendant Mackel's authority as a
law enforcement officer or the performance of his official
duties.” Plaintiff did not allege that Defendant Mackel
identified himself as a law enforcement officer, that he was
in uniform, or that he used his authority as an officer to
harm the Plaintiff. The alleged rape occurred in the
Plaintiff's home and had no relation to police activities
or police custody. Therefore, this §1983 claim must fail
because the defendant did not act under color of state law as
is required by the statute.
Judge Parker recommends that Patten's Motion for Summary
Judgment should be granted, noting that Officer Patten acted
reasonably when he tased the Plaintiff. To prevail on an
excessive force claim, the Plaintiff must show: (1) 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. Hanks v. Rogers, 853 F.3d 738,
744 (5th Cir. 2017)(quoting Cooper v. Brown, 844
F.3d 517, 522 (5th Cir. 2016)).
Plaintiff was cutting himself with a razor and refused to
open the bathroom door, prompting Defendant Patten to kick
the door down and tase the Plaintiff. Precedent establishes
that Officer Patten acted reasonably in his decision. See
Buchana v. Gulfport Police Dept., 530 Fed.App'x 301,
314 (5th Cir. 2013)(holding that police officers used
reasonable amount of force in tasing suspect who refused to
comply with instructions to leave his bat on the ground);
Pratt v. Harris Cty., Tex., 822, F.3d 174,
182(holding that police officers use of taser was not
excessive when suspect repeatedly ignored instructions and
resisted handcuffing); Stanley v. City of Baytown,
Tex., 2005 WL 2757370 (S.D. Tex. Oct. 25, 2005)(holding
officer's decision to tase Plaintiff after Plaintiff
physically resisted medical personnel after suffering a
seizure and ignoring officers instructions was not an
unreasonable use of force). Therefore, Plaintiff's
§1983 claim fails as Defendant Patten used reasonable
force under the circumstances.
the Court finds that the case should be dismissed with
prejudice for failure to allege that Mackel acted within the
color of state law and for failure to show that Patten used
unreasonably excessive force.
HEREBY ORDERED that Magistrate Judge Michael Parker's
Report and Recommendation (Doc. 92) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that a Final Judgment dismissing the case
with prejudice ...