Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

ESTATE OF MARCUS ANTHONY
MALONE, ET AL.,
Plaintiffs,
VS.
BRIAN MONTGOMERY, ET AL.,
Defendants.
_______________________________________

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 1:00cv74(G)(R)

DEFENDANTS’ MEMORANDUM
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case is about the sad, violent and ultimately self-destructive life of Marcus Malone
(“Malone’). A ninth grade drop-out with anger-management problems, Malone was sent to
prison at the age of nineteen for kidnapping and robbing a young couple at gunpoint. While in
Parchman, he was involved in a gang that used strong-arm violence and beatings to extort from
other inmates. Following his release thirteen years later, he continued a chronic crack cocaine
addiction that led to a brief hospital commitment in August 1999.
On September 13, 1999, while under the influence of cocaine, Malone fought with Moss
Point Police Officers following a routine traffic stop. Combative and uncooperative, Malone was
placed in the Moss Point Jail’s “drunk” tank, where his lifeless body was discovered during a
routine jail check. The forensic pathologist who conducted the autopsy listed the primary factors
leading to Malone’s death as his recent intake of drugs combined with the “prolonged violent
physical activity” that occurred while he was resisting arrest.

JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 2 of 31

Plaintiffs1 assert federal claims pursuant to 42 U.S.C. § 1983 (“Section 1983”), claiming
violations of the Fourth, Fifth, Ninth and Fourteenth Amendments to the United States
Constitution against Defendants: (1) the City of Moss Point, Mississippi, (2) deceased former
Moss Point Mayor Louis Jackson2, (3) former Moss Point Police Chief John “Butch” Gager3 (4)
Officer Steve Strickler, (5) Officer Chris Weeks, (6) Officer Brian Montgomery, and (7) Officer
Derrick Welton.4 See Complaint, Attached to Defendants’ Motion as Exhibit “A”. Reduced to
its essentials, the Complaint asserts claims of: (1) excessive force, (2) failure to train, supervise
and discipline, (3) denial of medical care, and (4) a claim of conspiracy. Plaintiffs expressly
declined the Court’s supplemental state law jurisdiction and waived any supplemental state law
claims. Complaint at ¶ 5.
Plaintiff’s vague and rambling Complaint illustrates a fundamental misunderstanding of
Section 1983 law, and as such, Plaintiff’s Fifth and Ninth Amendment claims are properly
dismissed as a matter of law. Summary judgment is proper as to the City of Miss Point because
Plaintiff cannot show a

policy on which to base municipal liability.

Likewise, summary

judgment is proper as to former Moss Point Police Chief Gager, as well as deceased former
Mayor Jackson.

See Answer and Affirmative Defenses, Attached to Defendants’ Motion as

Exhibit “B”.

1

2

3

4

The Complaint lists the Plaintiffs as the Estate of Marcus Malone, as well as Malone’s mother, Connie Malone
and Malone’s sister, Evelyn Stephens. The Complaint also alleges Malone’s Sister, Mary Malone, is entitled to
damages.
Former Moss Point Mayor Louis Jackson died in a January 19, 2005 traffic accident on Interstate 10 in Mobile,
Alabama. The 60-year-old Jackson, who was the first African-American to hold elected office in Moss Point, had
served eight years as Mayor and was in office at the time of Marcus Malone’s death.
Former Moss Point Police Chief John “Butch” Gager retired from the Department in 2002, after 29 years in law
enforcement.
The claims against all individual Defendants are both in their individual and official capacities.

-2JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 3 of 31

Despite Plaintiff’s unsupported claim that Malone was “strangled to death” by one or
more of the police officers, summary judgment is proper as the claims against individual
Defendants Steve Strickler, Chris Weeks, Brian Montgomery, and Officer Derrick Welton, both
on the merits as well as on the basis of qualified immunity. For the reasons discussed below,
there is no liability on the part of the City of Moss Point and the individual Defendants and
summary judgment is proper as to all of Plaintiffs’ claims.
II. FACTS
A.

Background of Marcus Malone.
Marcus Malone dropped out of school in the ninth grade. See Deposition of Connie

Malone at 14, Attached to Defendants’ Motion as Exhibit “C”. As a teenager, the Jackson
County Youth Court ordered Malone sent to Baptist Hospital in Jackson for treatment for anger
management. Id. at 20. The Youth Court ordered the treatment because “he was always beating
up the younger children” living in his mother’s Moss Point home and was “out of control.” See
Deposition of Evelyn Stephens at 8-9, Attached to Defendants’ Motion as Exhibit “D”; Connie
Malone at 21.

Before the age of nineteen, Malone had developed a drug problem. Evelyn

Stephens. at 25.
At the age of nineteen, Malone was convicted of 2 counts of kidnapping and armed
robbery. See Excerpts of Mississippi State Penitentiary Records of Marcus Malone, Attached to
Defendants Motion as Exhibit “E”. One of the kidnapping/robbery charges involved jumping
into the car of a young couple in Pascagoula, robbing them at gunpoint of money and jewelry
and forcing them to drive him to Moss Point so he could escape. Id. Malone was sentenced to 20
years in prison, although he actually served thirteen years. Id; Connie Malone at 28. During

-3JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 4 of 31

Malone’s sentence at Parchman Penitentiary, he was subject to multiple disciplinary write-ups.
One such detention notice states “Offender Malone is an admitted and known gang member5
who has been involved in several incidents involving violent acts and instigation of violent acts,
Offender Malone is a threat to the safety of himself, other offenders, staff, and the orderly
running of the institution.” Other incidents involved him and fellow gang members beating other
inmates as part of an extortion scheme. Exhibit “E”.
In January 1999, Malone was released from prison at the age of thirty-two and returned to
Moss Point to live with his mother. Connie Malone at 32, 35. After his release, he worked a
number of short-term jobs through a temporary employment agency. Evelyn Stephens at 13-14.
He worked for Friede Goldman Shipyard for approximately two weeks before being terminated.
Id. at 15-16. He went to work for Ingalls Shipyard for approximately seven weeks but was laid
off. Id. His sister testified that Malone stopped looking for work. Id. at 18. As of September
1999, Malone was unemployed and was being entirely supported by his mother and sister.
Evelyn Stephens at 17; Connie Malone at 35.
During the same period following his release from prison, Malone again was involved in
using illegal drugs. His sister suspected he was using crack cocaine because of his “irrational”
and “argumentative” behavior. Evelyn Stephens at 18-19. She would see him at places she knew
to be drug dens and he would sometimes disappear from home for days.6 Id. Malone’s sister felt
that Malone had reached the point where he needed treatment for his drug addiction. She
arranged for Malone’s nephew, Jeffrey Goldsmith, to take Malone to Singing River Hospital in

5
6

Prison records indicate Malone was a member of the “Black Gangster Disciple” prison gang. See Exhibit “E”.
Malone’s sister, Evelyn Stephens, testified that she was able to recognize Malone’s behavior as being consistent
with crack cocaine use because of her training and professional ability as a Registered Nurse. Evelyn Stephens
at 19-20.

-4JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 5 of 31

Pascagoula, Mississippi, where he received treatment from August 16 through August 24, 1999.
Id. at 21-22.
Dr. Richard Bucci was an Emergency Room physician at Singing River Hospital who
saw Malone on August 16, 1999. See Deposition of Dr. Richard Bucci at 4-5, Attached to
Defendants’ Motion as Exhibit “F”. Malone initially was seen in the morning by the hospital’s
Crisis Intervention Team, but walked out of the hospital and spent the afternoon smoking crack
cocaine. See Admission History and Physical of Marcus Malone Dated August 16, 1999,
Attached to Defendants’ Motion as Exhibit “G”; Dr. Richard Bucci at 12-13. Malone returned
to the hospital that evening. Dr. Bucci at 9. Malone’s chief complaint was that he wanted to kill
himself and that he wanted help with his ongoing drug addiction. Id. at 5. Malone informed Dr.
Bucci that he had used crack cocaine just ten minutes before walking into the hospital. Id. at 7.
A drug screen taken upon Malone’s admission showed he had a very high blood alcohol level of
23.7 or more than twice the legal limit, and tested positive for cannabinoids, the metabolic byproducts of marijuana.. See Blood Alcohol Screen and Drug Screen of Marcus Malone, Attached
to Defendants’ Motion as Exhibit “H”; Dr. Bucci. at 14-15. The drug screen showed Malone to
have a high cocaine metabolite level, higher than the machine could even register. Exhibit “H”;
Dr. Bucci at 15. Dr. Bucci testified that the combination of alcohol and cocaine was a lethal
amount which had the potential to kill Malone.7 Dr. Bucci at 15-16.
Dr. Roy Deal is a board certified psychiatrist and was Chief of Psychiatry at Singing
River Hospital at the time Malone was admitted. See Deposition of Dr. Roy Deal at 4-5, 7,

7

Dr. Bucci also testified that even if a chronic drug addict developed a tolerance for crack cocaine, “it still has
the dangerous effects, potentially dangerous effects on their body no matter how much tolerance they have. I
mean, your heart can only take so much. Whether you’re acting appropriately or not doesn’t mean that your
heart might not stop the next minute.” Dr. Bucci at 21.

-5JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 6 of 31

Attached to Defendants’ Motion as Exhibit “I”. Dr. Deal examined and evaluated Malone
during his stay at the hospital and confirmed Malone’s cocaine addiction as well as his marijuana
dependence and alcohol abuse. Id. at 8-9, 25. Dr. Deal testified that Malone was referred to
addiction treatment facilities that he could have entered immediately, either on an inpatient or
outpatient basis. Id. at 36-37. However, Dr. Deal noted in Malone’s Discharge Summary that
Malone “is showing basically no effort, that I have seen, to arrange for treatment” and “I suspect
that he will begin using [drugs] as soon as he is released.” See Discharge Summary Dated
August 24, 1999, Attached to Defendants’ Motion as Exhibit “J”; Dr. Roy Deal at 38. Dr. Deal
testified that Malone was not interested in changing his drug addicted lifestyle and that was “a
very bad indicator for what the future holds for a person.” Dr. Roy Deal at 39. Dr. Deal testified
that Malone was on a dangerous course because of his excessive cocaine use, with only two
likely outcomes. Id. Malone would either get into legal trouble, or get very physically sick,
which would include death. Id.
While Malone was in the hospital, his nephew filed an emergency petition in the
Chancery Court of Jackson County on August 17, 1999, to have Malone committed to a state
hospital as a drug addict. See Jackson County Chancery Court Emergency Petition, Attached to
Defendants’ Motion as Exhibit “K”. In the petition, Malone’s nephew attested “[h]e uses crack
cocaine daily if he can get it. He wants to kill himself and says if he leaves the hospital he will
kill himself.” Id. A notice of hearing was set for August 24, 1999, the day that Malone was
slated to leave Singing River Hospital and a summons issued to Marcus Malone.

See

Summons/Notice, Attached to Defendants’ Motion as Exhibit “L”. On August 24, 1999, a
hearing was held and the Chancery Court issued an Order committing Malone to either East
Mississippi State Hospital-CDU or the Stevens Center for an undetermined period “because of

-6JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 7 of 31

the excessive, frequent and constant use of . . . drugs [Malone] has lost the power of self control,
and is unable to care for himself . . . and conduct his affairs and is in need of detention at said
hospital . . . .” See Order dated August 24, 1999, Attached to Defendants’ Motion as Exhibit
“M”. Malone’s sister testified they were told Malone would be called to go to the hospital as
soon as a bed was available, but they never received a call. Evelyn Stephens at 26.
B.

Events of September 13, 1999.
On Monday, September 13, 1999 at 9:06 p.m., Moss Point Reserve Police Officer Steve

Strickler observed Marcus Malone driving a car with a burned-out headlight.8 Deposition of
Steve Strickler at 35, 38, Attached to Defendants’ Motion as Exhibit “N”. Officer Strickler
pulled his patrol vehicle behind Malone’s car and turned on his blue lights. Id. at 35. Malone
did not stop immediately. Id. As Officer Strickler approached Malone’s vehicle, he observed a
plastic bag that was thrown from the car to the ground and which contained a crystal-like
substance. Id. at 36-37. Officer Strickler approached the driver’s side window and asked for
Malone’s license. Id. at 36. At that time Officer Strickler noticed that Malone was sitting oddly
in the car, leaning against the driver’s side door, with his right leg and feet on the passenger’s
side floorboard. Id. at 37. Officer Strickler asked Malone “[w]hat in the world are you doing?”
Id. Malone told Officer Strickler he was getting comfortable and stated that he did not have a
driver’s license but his name was Marcus Malone. Id. Strickler called the name into dispatch to
check for any warrants on Malone. Id. at 40.
Officer Strickler told Malone he had been stopped because of the burned-out headlight
and Malone began getting loud, using profanity and making jerky motions with his body. Id. at

8

Officer Strickler had never met or had any dealing with Marcus Malone prior to the night in question. Steve
Strickler at 45.

-7JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 8 of 31

38. From Strickler’s experience, Malone’s agitation was not just attributable to being stopped
and Malone appeared to be under the influence. Id. at 39. Officer Strickler called on his radio for
Officer Chris Weeks, who was patrolling in the general vicinity, to come to Strickler’s location.
Id. at 42.
Once Officer Weeks arrived, Officer Strickler asked Malone to step out of the vehicle. Id.
at 45. Malone started to exit the vehicle and then briefly moved back inside the car before
getting out. Id. at 46. As Malone placed his hands on the roof of the patrol car, Officer Strickler
saw him throw something and heard the sound of glass. Id. at 46-47. The object was retrieved,
by Officer Weeks who determined it was a glass crack pipe, and told Officer Strickler to take
Malone into custody. Id. at 48. Officer Strickler advised Malone he was under arrest. Id. at 49.
When Officer Strickler asked Malone to put his hands behind his back, Malone swung at
Officer Strickler with his left elbow and tried to run. Id. at 49. Officer Strickler tackled Malone
and the two went to the ground as Strickler attempted to handcuff Malone. Id. at 52. Officer
Weeks ran to assist and was able to get one handcuff on Malone’s wrist. Id. at 54-55. Malone
became violent, kicking and swinging at the officers, hitting Officer Strickler several times with
the swinging end of the handcuffs. Id. at 56-57. Malone managed to get himself partially back
inside his car. Id. at 57. The Officers tried to calm Malone down and told him to stop resisting.
Id. at 58. At this point, Malone managed to pin his right foot against Officer Strickler’s chest
and pin him to the hinges of the open driver’s side door. Id. at 58. Officer Strickler was unable
to breath and had to let go of Malone’s un-handcuffed wrist. Id. at 58. Officer Weeks continued
to try to hang on to Malone’s handcuffed wrist. Id. During the struggle with Malone, the
Officers repeatedly called into dispatch for back-up. Id. at 59.

-8JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 9 of 31

Moss Point Police Officer Derrick Welton and Moss Point Police Captain Brian
Montgomery had been responding to another call when they heard a radio call for distress from
Officer Weeks. See Deposition of Officer Derrick Welton at 15,19, Attached to Defendants’
Motion as Exhibit “O”.

When they arrived at the scene, Officer Welton exited from the

passenger side of the patrol car and found Officers Weeks and Strickler struggling with Malone
inside Malone’s car and trying to handcuff Malone. Id. at 20. Officer Weeks asked Officer
Welton to use pepper spray, and Welton sprayed Malone in the face. Id. at 21. Officer Welton
had received training in the use of pepper spray at the Police Academy, and had passed both
written and practical tests on the use of pepper spray. See Pepper Spray Training Certificate for
Derrick Welton, Attached to Defendants’ Motion at Exhibit “P”; Derrick Welton at 8-9, 11.
Under the policies of the Moss Point Police Department, officers were required to be trained and
qualified before they could use pepper spray and part of that training required officers to be
sprayed themselves to feel the effects. See Deposition of Former Police Chief John Gager at
13-14, Attached to Defendants’ Motion as Exhibit “Q”. The City also had a written policy
restricting the use of unnecessary force on arrestees: It reads as follows:
Officers shall not use unnecessary force or violence in making an
arrest or in dealing with a prisoner or any person. Prisoners and
suspects shall be treated in a fair and humane manner. They shall
not be humiliated, ridiculed, taunted or embarrassed. Officers shall
not strike, or use any other form of physical force on a prisoner or
other person except when necessary to prevent an escape or in selfdefense or to prevent violence to another person. Officers shall
report each instance of their use of force before going off duty.
See Excerpts of Moss Point Police Department Standard Operating Procedures, Attached to
Defendants’ Motion as Exhibit “R”. Former Moss Point Police Chief John “Butch” Gager”
confirmed that this policy encompassed the use of pepper spray. John Gager at 16,18.

-9JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 10 of 31

Being sprayed with the pepper spray made no observable difference in Malone’s behavior
and he continued to kick and fight with the officers. Steve Strickler at 59. It took all of the
officers to extricate Malone from his car and fully handcuff him. Derrick Welton at 21. Malone
continued to kick and scream even after being handcuffed.

Steve Strickler at 61. Captain

Montgomery had a dashboard videocamera in the patrol car. Derrick Welton at 15. The
videotape depicts Malone after he was handcuffed and extricated from his car. Steve Strickler at
60. The videotape clearly shows Malone was alive following his struggle and assault on the
officers.

See Police Dashboard Camera Videotape of Marcus Malone Arrest, Attached to

Defendants’ Motion as Exhibit “S”. The videotape also reflects officers breathing heavily and
trying to recover from the exertion of getting Malone out of the car. Id.
Malone was placed in the back seat of Officer Strickler’s patrol car on the driver’s side.
Steve Strickler at 64. The officers did not leave the scene until a wrecker arrived to tow
Malone’s car. Id. at 62, 65-66. While the officers were waiting for the wrecker, Officer Strickler
checked on Malone in the back of the patrol car and determined Malone was not in any distress.
Id. at 65.
Once Officer Strickler drove away from the scene of the arrest, Malone resumed his
violent behavior and began trying to kick out the rear driver’s side window of the patrol car.
Steve Strickler at 67. Officer Strickler called for the other units, who were all within close
proximity and the vehicles pulled over. Id. at 67-68. Officer Strickler exited his patrol car and
began conversing with his supervisor, Captain Montgomery, about whether Malone should be
further restrained. Id. at 68-69. During the discussion, the two officers agreed it was best just to
continue back to the police station. Id. at 68-69.

- 10 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 11 of 31

While Officers Strickler and Montgomery were talking, Officer Welton observed Malone
moving around quite a bit in the back of Strickler’s patrol car, and he opened the door to
investigate. Derrick Welton at 28. Malone took this opportunity and used his feet to push
himself partially outside the car in an attempt to get out. Id. at 28-29. Officer Welton grabbed
Malone and with the help of Officer Weeks, tried to get Malone back in the car. Id. at 29-30, 32.
While Malone was still halfway out, and still kicking and struggling, Officer Weeks sprayed
Malone with pepper spray and Malone was hollering at the officers.9 Id. at 32, 36 At this point,
Officer Welton was able to get Malone back into the back seat and closed the door. Id. at 32. It
is undisputed from the record that Malone was alive at this point, as noted by the obscenities
Malone directed toward the officers. Id. at 36. Officer Welton observed Malone once he was
back in the car and noted that Malone did not seem to be in distress. Id. at 50-51.
After this second stop, Officers Welton, Weeks and Montgomery had no further contact
with Malone. Deposition of Brian Montgomery at 50-52, Attached to Defendants’ Motion as
Exhibit “T”, Deposition of Chris Weeks at 39-40, Attached to Defendants’ Motion as Exhibit
“U”. Derrick Welton at 37, 41-42, Steve Strickler at 72-73
When Officer Strickler got back in the patrol car, Malone was sitting upright in the back
of the vehicle and using profanity. Steve Strickler at 72. Officer Strickler proceeded directly to
the Moss Point Police Department and arrived there a minute or so later. Id. at 72-73. When
Officer Strickler opened the door of the car, he found that Malone had kicked his shorts off, and
was just wearing his underwear. Id. at 75. Officer Strickler removed Malone from the vehicle
with the assistance of Officer Harvey Graff. Id. at 79. At that time, Malone was breathing,
responding to questions and did not appear to be in distress. Id. at 79, 81. The officers began to
9

Officer Weeks was certified to use pepper spray. See Exhibit “CC”

- 11 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 12 of 31

carry the uncooperative Malone between them, with Malone dragging his feet, but Malone stood
up on his own at the front door to the police station. Id. at 82-83 Officer Graff asked Malone “if
he was going to cooperate and walk in like a man” but Malone used profanity and said “no.” Id.
at 79-80, 83. The two officers then carried Malone into the police station and laid him on the
floor just outside of the booking room. Id. at 83 As such, it is undisputed from the record that
Malone was alive at the time he was brought out of Strickler’s patrol car and taken into the
police station. Id. at 79-83.
The Police Department’s procedure at this point was to go through the booking process,
and the officers attempted to obtain enough information from Malone to book him. Steve
Strickler at 84. However, Malone’s only response to the officers’ request was profanity. Id. at
85. Officer Strickler examined Malone at the police station to determine if Malone was in need
of medical treatment. Id. at 86. All Strickler observed was an abrasion on Malone’s wrist and
saw no noticeable signs of distress. Id. at 86, 89. The Moss Point Police Department’s written
policies regarding injured prisoners read as follows:
Whenever a person is arrested for a crime and taken to the police
station, the arresting officer shall immediately examine each
prisoner booked and if he finds any bruises, cuts or other injuries
he shall forthwith report the matter to the Patrol Captain, and in his
absence to the Sergeant and make a written report thereof to the
Chief of Police. If, in the judgment of the Officer in Charge, the
prisoner is suffering from wounds or injuries which require
medical attention, a physician shall be called. If wounds or
injuries appear to have been inflicted by the arresting officer, the
Officer in Charge shall record this fact. If it appears that
unjustifiable violence was used, charges shall be preferred against
the offender.
When a prisoner is unconscious from any cause, the Officer in
Charge should immediately endeavor to restore consciousness; or
failing to do so within a reasonable time, he should call a physician

- 12 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 13 of 31

and be guided by his instructions. An unconscious person should
not be placed in a cell except when it is determined by a physician
that stupor was induced by alcohol.
Exhibit “R”.
Even though he was handcuffed, Malone continued to struggle and roll back and forth on
the floor. Id. at 88. When Strickler asked Malone for information, Malone cussed at him.
Officer Graff advised Strickler to lock Malone in the cell designated as the “drunk tank” until
Malone calmed down. Id. at 89. Officers Strickler and Graff dragged Malone to the drunk tank,
laid him on the floor and took off the handcuffs. Id. at 90. Malone directed profanity at the
officers. Id. Other inmates in the cell were sleeping. Id. Officer Strickler locked the cell door
and went back on patrol. Id. at 91. As such, it is undisputed from the record that Malone was
alive at the time he was left inside the jail cell. Id. at 90-91.
In the meantime, Officer Derrick Welton had arrived at the station after stopping and
taking into custody a man named Willie Lee on a charge of DUI. Derrick Welton at 41. Officer
Welton conducted an Intoxilyzer test on Lee, took his mug shot and obtained booking
information. Id. After booking, Officer Welton took Lee to the drunk tank, the same cell in
which Malone had been placed. Id. at 42. When he entered the cell, he noticed Malone lying on
the floor and asked one of the other inmates “Is he okay?” but received no response. Id. at 42-43.
Officer Welton used his radio and requested another officer come to the jail area. Id. at 44.
Welton was not able to detect a pulse and Malone’s wrist seemed cool to the touch. Id. This was
the first contact Welton had with Malone since the second stop, when it was uncontradicted that
Malone was still alive.

- 13 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 14 of 31

Former Police Chief John Gager was at home when he received a call about Malone
being found dead in the jail cell. John Gager at 6. Chief Gager arrived at the police station
shortly before Midnight, examined the jail area, and made the decision to call the Mississippi
Highway Patrol to handle the investigation. Id. at 6, 8.
At the request of the Jackson County Coroner, an autopsy was performed on Malone’s
body at 8:00 a.m. the next morning, September 14, 1999, by forensic pathologist Paul McGarry,
M.D. See Deposition of Dr. Paul McGarry at 8, Attached to Defendants’ Motion as Exhibit “V”.
The autopsy report determined the cause of death was “[a]sphyxia due to the combined effects of
recent drug intake, prolonged violent physical activity, restraint, and face-down position.” See
Autopsy Protocol, Attached to Defendants’ Motion as Exhibit “W”. Dr. McGarry classified
Malone’s death as an “accident.” Dr. McGarry at 36. Lab tests revealed the presence of cocaine
metabolites in both Malone’s blood and urine.

See Mississippi Crime Laboratory

Report/Comprehensive Drug Analysis, Attached to Defendants’ Motion as Exhibit “X”.

Dr.

McGarry’s examination revealed absolutely no signs of external or internal injury to Malone’s
neck, windpipe, larynx or voice box, and absolutely no evidence that he was strangled or died
from any compression of his neck. Dr. McGarry at 13, 17-22, 27-28. There also was no
evidence that Malone had been beaten or subjected to any abuse. Id. at 13.
The glass pipe that Malone had thrown from his car tested positive for cocaine residue.
See Mississippi Crime Laboratory Report/Instrumental Analysis, Attached to Defendants’ Motion
as Exhibit “Y”. The crystal-like substance in the plastic bag that Malone threw from his car
tested positive as methamphetamine. Brian Montgomery at 76.

- 14 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 15 of 31

III. ARGUMENT AND AUTHORITIES
A.

Standard of Review.
To avoid summary judgment, a plaintiff must produce admissible evidence of specific

facts which indicate that a genuine issue of material fact actually exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986); if a plaintiff lacks evidence sufficient to create a
genuine issue of fact in support of a necessary element of a claim or claims, then summary
judgment is appropriate against plaintiff on that claim. Hypes v. First Commerce Corporation,
134 F.3d 721, 725 (5th Cir. 1998). A dispute about a material fact is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the nonmovant. Burfield v. Brown, Moore,
& Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995). While the Court may not make credibility
determinations or weigh the evidence, pursuant to Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000), “Reeves does not require [the Court] to reject the plainly
obvious.” Montemayor v. City of San Antonio, 276 F.3d 687, 693 (2001). The burden on the
nonmoving party is to do more than simply show there is some metaphysical doubt as to the
material facts. Meinecke v. H&R Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995) “This
showing requires more than some metaphysical doubt as to the material facts.” Vanderford v.
Parker Hannifin Corp., 971 F. Supp. 1079, 1080 (N.D. Miss. 1997). “If the nonmoving party
fails to make a sufficient showing of an essential element of a claim with respect to which it has
the burden of proof, then the moving party is entitled to judgment as a matter of law.” Id. at
1080.

- 15 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 16 of 31

B.

Federal Claims.10
1.

Plaintiffs have Failed to State a Fifth Amendment Claim.

Plaintiffs claim Defendants are liable pursuant to the Fifth Amendment to the United
States Constitution.. See Complaint at ¶ ¶ 5,23.

Plaintiffs’ Fifth Amendment claim fails as a

matter of law. The Fifth Amendment applies only to violations of constitutional rights by the
United States or a federal actor. See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000)
(citing Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). It is undisputed that none of the
Defendants were ever acting under any authority of the federal government and Plaintiffs have
never alleged otherwise. As such, all Defendants are entitled to summary judgment as to
Plaintiffs’ Fifth Amendment claim.
2.

Plaintiff has Failed to State a Ninth Amendment Claim.

Plaintiffs claim that Defendants violated the rights guaranteed to Marcus Malone by the
Ninth Amendment to the United States Constitution. See Complaint at ¶ ¶ 5,23. However, no
such claim exists in an action brought pursuant to Section 1983, and once again, Plaintiffs’ claim
fails as a matter of law.
It has long been recognized in this Circuit that the Ninth Amendment does not specify
any substantive constitutional rights and is considered to be a savings clause to the United States
Constitution. Consequently, since the Ninth Amendment does not secure any constitutional
rights, no cause of action exists solely for a violation of the Ninth Amendment. Canton Branch
of N.A.A.C.P. v. Runnels, 617 F. Supp. 607, 609 n. 3 (S.D. Miss. 1985); Richardson v. Sewerage
10

While Plaintiff asserts a cause of action pursuant to the Fourth Amendment, Plaintiffs make no claim that
Malone was improperly arrested, especially in light of the ample probable cause that existed pursuant to the
undisputed facts. “Whether an arrest is illegal...hinges on the absence of probable cause” and as such, there is
no cause of action for false arrest under §1983 unless the arresting officer lacked probable cause. Sorenson v.
Ferrie, 134 F.3d, 325 328 (5th Cir. 1998). “Probable cause to arrest exists when the facts and circumstances
within the knowledge of the arresting officer are sufficient to cause a person of reasonable caution to believe an
offense has been or is being committed.”

- 16 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 17 of 31

& Water Board, 1996 WL 288275 (E.D. La. 1996) (“The Ninth Amendment is not a vehicle for
bringing civil rights claims. Simply put . . . allegations of Ninth Amendment violations fail to
state a claim for which relief can be granted pursuant to 42 U.S.C. § 1983.”). Other jurisdictions
are in accord. See Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (“the Ninth
Amendment has never been recognized as independently securing any constitutional right, for
purposes of pursuing a civil rights claim.”); Charles v. Brown, 495 F. Supp. 862, 864 (N.D. Ala.
1980) (a claim based on alleged Ninth Amendment rights “must fail because there are no
constitutional rights secured by that amendment.”). As such, all Defendants are entitled to
summary judgment as to Plaintiffs’ Fifth Amendment claim.
3.

Plaintiff Has No Cause of Action Against Former Police Chief John “Butch”
Gager and Deceased Former Mayor Louis Jackson.

The Complaint seeks to hold former Moss Point Police Chief John “Butch” Gager and
deceased former Moss Point Mayor Louis Jackson individually liable. See Complaint at ¶¶ 2(E)
& 2(F). It is undisputed from the record that Gager was not personally involved in the arrest of
Marcus Malone and was not present when Malone was brought to the Moss Point Jail or when it
was discovered that Malone had died. Jackson similarly had no personal involvement.
For an official to be held individually liable, there must be evidence of sufficient personal
involvement by the official in the alleged wrongful infliction of injury. Woods v. Edwards, 51
F.3d 577, 583 (5th Cir. 1995). See also Watson v. Interstate Fire & Casualty Co., 611 F.2d 120,
123 (holding that a sheriff without any personal involvement was properly dismissed from a
§1983 suit arising from an arrest and incarceration).
In this case, it is undisputed that former Chief Gager was not at the police station or jail
when Marcus Malone was brought in and had no personal involvement in Malone’s arrest. John

- 17 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 18 of 31

Gager at 6, 8. Gager also was not a final policy maker for purposes of municipal liability.11 He
also cannot be held liable for any purported acts of individual officers. Thompkins v. Belt, 828
F.2d 298, 303 (5th Cir. 1987). (“Under Section 1983, supervisory officials are not liable for the
actions of subordinates on any theory of vicarious liability.”) Likewise the late Mayor had no
personal involvement and was not mentioned by anyone in discovery as having had any role in
the arrest and detention of Malone. Both Jackson and Gager are also entitled to qualified
immunity, as discussed below in greater detail in Section III(B)(7). As such summary judgment
is proper as to all claims against former Police Chief Gager and deceased former Mayor Jackson
in their individual capacity.
4.

Plaintiff Cannot Establish a Cause of Action for Conspiracy.

The basis of Plaintiffs’ conspiracy claim is the Complaint’s bare assertion that “[t]he
Defendants, acting individually and together, under color of law, engaged in a course of conduct,
and conspired together, to deprive the decedent and the Plaintiffs of their rights under federal and
state law.” Complaint at ¶ 22. As discussed below, Plaintiffs have declined supplemental state
law jurisdiction, so as such, any purported conspiracy claim must be asserted pursuant to federal
law.
Plaintiffs’ claim roughly tracks the language of 42 U.S.C. § 1985 (“Section 1985”),
which addresses conspiracy to interfere with civil rights. However, Plaintiffs have never asserted
a cause of action pursuant to Section 1985 and the Complaint does not reference Section 1985 in
any way.
11

The United States Supreme Court has made it clear that the exercise of discretion by a particular official in the
exercise of a particular function, does not itself create municipal liability. Pembaur v. City of Cincinnati, 475
U.S. 469, 482-83, 106 S.Ct. 1292, 1299-1300 ( (1986). The Court made it clear that the authority to make
municipal policy must be the authority to make final policy. Id. at 481-84, 106 S.Ct. at 1299-1301. Whether a
purported policymaker has final policy making authority is a question of state law. Jett v. Dallas Independent
School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723 (1989). Pursuant to MISS. CODE ANN. § 21-19-15,
former Chief Gager could not be a final policy maker.

- 18 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 19 of 31

Assuming arguendo Plaintiffs purport to bring this claim under Section 1983, it similarly
fails. A plaintiff bringing a § 1983 conspiracy suit must allege the existence of an agreement to
commit an illegal act. Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.1994). “Mere conclusory
allegations of conspiracy cannot, absent reference to material facts,” state a substantial claim of
federal conspiracy under Section 1983. Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986)
(quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1986). Plaintiffs have failed to meet
their evidentiary burden and summary judgment is proper.
5.

Plaintiffs Cannot Present Admissible Evidence that Strickler, Weeks, Montgomery
or Welton Strangled Malone.
The gist of Plaintiffs’ claim against Officers Strickler, Weeks, Montgomery and Welton

is that Malone was “strangled to death by one or more of the Defendants . . . .” Complaint at
¶ 10. Plaintiffs bear the burden of showing two things: (1) Malone was strangled, and (2) who
strangled him. While Plaintiffs can fabricate a fact question as to the first issue, through the
claims of their retained expert witnesses, they cannot create a fact question as to the second
issue, and any such attempt is inadmissible speculation. For the reasons discussed below,
summary judgment is proper as to Officers Strickler, Weeks, Montgomery and Welton.
As noted above, the official autopsy of Malone’s body by Dr. McGarry revealed no
external or internal injury to Malone’s neck, windpipe, larynx or voice box, and no evidence that
he was strangled or died from any compression of his neck. Dr. McGarry at 13, 17-22, 27-28;
Exhibit V”. Plaintiffs seek to create a fact question through their retained expert, Steven Hayne,
M.D. (“Hayne”), who was paid to perform a second autopsy on Malone’s body three days after
Dr. McGarry’s initial autopsy. See Report of Post Mortem Examination by Plaintiffs’ Expert (2nd
Autopsy), Attached to Defendants’ Motion as Exhibit “Z”. Haynes claims Malone was manually

- 19 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 20 of 31

strangled by someone choking him with their hands, but does not state where or when. Id. The
waters are further muddied by Plaintiffs’ other retained expert, Michael Baden, M.D., who never
actually examined Malone. However, Baden, who disputes that Malone was manually strangled,
instead claims Malone died from asphyxia by some other type of compression of the neck. See
Report of Michael Baden, Attached to Defendants’ Motion as Exhibit “AA”.
While the accuracy and credibility of the conclusions of Plaintiffs’ retained experts are
seriously in doubt, for purposes of this motion only, Defendants will assume that Malone was
strangled. However, Plaintiffs cannot establish any admissible evidentiary proof that Officers
Strickler, Weeks, Montgomery and Welton had anything to do with the purported strangling of
Malone, and cannot create a fact question as to who allegedly strangled Malone. As such,
summary judgment is proper as to all of these individual Defendants.
The Fifth Circuit has made it clear that “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a genuine issue at trial.” TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002). See also Grimes v. Tex. Dept.
of Mental Health and Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996) (stating that
“unsubstantiated assertions are not competent summary judgment evidence”).
The undisputed evidence in the record establishes that at the initial traffic stop of Malone,
he was alive at the time officers managed to finally get him handcuffed. The videotape of
Malone’s arrest clearly shows him being walked by the camera.

See Exhibit “S”.

The

undisputed evidence shows Malone was alive at the second stop, when the patrol car was stopped
because Malone had resumed his violent behavior and was trying to kick out the car’s window.

- 20 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 21 of 31

Steve Strickler at 67. Malone was alive at this second stop when Officers Weeks and Welton had
to prevent Malone’s attempt to escape from Officer Strickler’s vehicle. Derrick Welton at 28-30,
32, 36. Officers Welton and Montgomery subsequently observed and stopped a drunk driver on
the way back, and did not return to the police station along with Malone. Brian Montgomery at
36-37; Derrick Welton at 36-38.

After the second stop, Officers Welton, Weeks and

Montgomery had no further contact with Malone while he was alive. Therefore, it is undisputed
that they could not have been present when Malone was allegedly strangled.
It is undisputed that Malone was alive at the third stop when Officer Strickler arrived at
the police station. Malone was breathing, responding to questions, and using profanity as
Officers Strickler and Graff escorted him into the police station. Steve Strickler at 79-83.
Malone was alive when Officers Strickler and Graff put him in the drunk tank, still using
profanity against the officers. Id. at 89-91.
Even assuming arguendo that Malone was strangled after being placed in the drunk tank,
the undisputed evidence is that he was alive at all times he had any contact with Officers
Strickler, Weeks, Montgomery and Welton, and that the officers could not have had any
involvement with the strangling theorized by Plaintiffs and/or Plaintiffs’ retained expert
witnesses. Even assuming Malone was strangled, as opposed to succumbing to the effects of his
cocaine intake, Plaintiffs have no evidence as to who did it, and could as likely theorize Malone
was strangled by one of the other inmates in the cell prior to the discovery of his lifeless body.
As such, summary judgment is proper as to Steve Strickler, Chris Weeks, Brian Montgomery
and Derrick Welton.

- 21 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 22 of 31

6.

Plaintiffs Cannot Establish a Denial of Medical Care Claim against Strickler,
Weeks, Montgomery or Welton.
There is no basis to Plaintiffs’ denial of medical care claim against the individual police

officers. The Fifth Circuit has held in such cases that liability cannot attach to an officer unless
the officer “had subjective knowledge of a substantial risk of serious harm to a pretrial detainee
but responded with deliberate indifference to that risk.” Hare v. City of Corinth, MS, 74 F.3d
633, 650 (5th Cir. 1996) (en banc).
In this case, it is undisputed that Officer Strickler checked on Malone once he was in the
patrol car at the initial stop, and observed that Malone was in no distress following his assault on
and struggle with police. Steve Strickler at 65. At the second stop, after putting Malone back in
the patrol car after Malone’s attempt to escape, Officer Welton observed in the vehicle Malone
and saw no signs of distress. Derrick Welton at 50-51. Since Officers Welton, Weeks and
Montgomery had no further contact with Malone after the second stop, they never had any
subjective knowledge of a substantial risk of serious harm to Malone, or any need for any
medical assistance, and as such, could not act with deliberate indifference.
As discussed in greater detail above, it is undisputed that at all times Officer Strickler was
in contact with Malone, including from the time he was taken from the patrol car to when he was
locked in the drunk tank, Malone was alive, albeit belligerent and spouting profanity. As such,
Officer Strickler had no subjective knowledge of any risk to Malone, or any need for medical
care, and could not have acted in deliberate indifference. As such, summary judgment is proper
as to Steve Strickler, Chris Weeks, Brian Montgomery and Derrick Welton.

- 22 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 23 of 31

7.

Individual Defendants are Entitled to Qualified Immunity.
Qualified immunity gives ample room for mistaken judgments and protects “all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Plaintiff bears the burden of defeating a claim
of qualified immunity. Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.1997). Abrogation of
qualified immunity is properly the exception, not the rule. McGregor v. Louisiana State Univ.
Bd. of Supervisors, 3 F.3d 850, 862 (5th Cir. 1993).
Federal courts review claims of qualified immunity under a two-step analysis. See
Saucier v. Katz, 533 U.S. 194, 201 (2001). First, the court asks whether “[t]aken in the light
most favorable to the party asserting the injury, do the facts show the officers’ conduct violated a
constitutional right?” Id. “If the allegations do not establish the violation of a constitutional
right, the officer is entitled to qualified immunity,” there is no liability, and the inquiry is over. If
the allegations make out a constitutional violation, the court must inquire 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. Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001)
(quoting Saucier, 533 U.S. at 201); Wilson v. Layne, 526 U.S. 603, 614 (1999) (“whether an
official protected by qualified immunity may be held personally liable for an alleged unlawful
action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of
the legal rules that were ‘clearly established at the time it was taken” (internal quotation marks
and citations omitted)).
As discussed in greater detail above, there was no constitutional violation, and the actions
of all individual Defendants were reasonable and lawful. As such, all individual Defendants are
entitled to qualified immunity.

- 23 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 24 of 31

8.

Plaintiff Cannot Establish a Municipal Policy on Which to Base Liability
Against the City of Moss Point.

A municipality may be held liable under Section 1983 only if the following three
requirements are met: (1) the municipality must have an official policy, practice or custom which
could subject it to Section 1983 liability; (2) the official policy must have resulted in a
constitutional violation; and (3) the official policy must reflect the municipality’s deliberate
indifference to that injury. Monell v. Dep’t. of Social Servs. of the City of New York, 436 U.S.
658, 690-94, 98 S.Ct. 2018 (1978); Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en
banc). Thus, it is not necessary to reach the policy issue where there is no constitutional
violation. As discussed above, in this case, there was no constitutional violation. Even
assuming, arguendo, that Plaintiffs were able to establish a violation of Malone’s constitutional
rights, the Section 1983 claims against the City should still be dismissed.
Plaintiffs’ Complaint illustrates a basic misunderstanding of federal law regarding
municipal liability by claiming that the City of Moss Point can be vicariously liable for the
alleged wrongful acts of Officers Strickler, Weeks, Montgomery and Welton. Complaint at ¶ 3.
Plaintiffs are mistaken. In Monell v. Department of Social Servs., the Court rejected the doctrine
of respondeat superior liability and concluded that municipalities could be held liable only when
an injury was inflicted by a government’s lawmakers or by those whose edicts or acts may fairly
be said to represent official policy. 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-2038 (1978).
Municipalities may be held liable under Section 1983 only for acts the municipality has officially
sanctioned or ordered. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924
(1988).
There are two forms in which an official policy can be established.

Burge v. St.

Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003.) (quoting Bennett v. City of Slidell, 735 F.2d

- 24 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 25 of 31

861, 862) (5th Cir. 1984)). In the first, most obvious form, it is “[a] policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by the municipality’s
lawmaking officers or by an official to whom the lawmakers have delegated policy-making
authority.” Id. The second, less-explicit form, is “[a] persistent, widespread practice of city
officials or employees, which, although not authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a custom that fairly represents municipal
policy.” Id.
Because it is undisputed that no officially adopted policy of the City of Moss Point
sanctions any of the conduct alleged in the Complaint, Plaintiffs obviously must establish the
second form. The standard, however, is stringent because proof of random acts or isolated
incidents involving municipal employees is not sufficient to establish the existence of a custom
or policy upon which municipal liability may be based. Fraire v. City of Arlington, 957 F.2d
1268, 1278 (5th Cir. 1992). To prove such a custom or policy, a plaintiff must show a pattern of
similar incidents in which citizens were injured or endangered by the policy in question and such
incidents had occurred for so long or so frequently that it could be considered the expected and
accepted policy of city employees. Id. The federal courts are in agreement that this strict burden
is not met by merely alleging another similar incident. See Meehan v. County of Los Angeles,
th

856 F.2d 102, 107 (9 Cir. 1988) ( two prior incidents were not sufficient to establish a custom
or policy under Monell); Grier v. Brown, et al., 230 F.Supp.2d 1108, 1114 (N.D. Calif. 2002)
(three alleged prior incidents were insufficient to permit the imposition of municipal liability
under Section 1983); Asker v. Mifsud, 1995 WL 871208 (E.D. Mich. Dec. 15, 1995) (“[p]roof of
one or two incidents is not enough.”). Plaintiffs cannot establish a municipal policy on which to
base liability, and as explained in greater detail below, summary judgment is proper as to all the

- 25 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 26 of 31

varied claims against the City of Moss Point.
a.

Denial of Medical Care Claims.

Plaintiffs’ Complaint alleges that the City of Moss Point is liable for “failing to establish
proper and adequate procedures, policies and practices directed towards the handling of
individuals who are in need of prompt and adequate medical attention . . . ” and “in identifying,
handling and obtaining medical attention for individuals who are unconscious and/or display
symptoms indicating prompt medical assistance is required, so as to avoid the infliction of
unnecessary pain, suffering, injuries and/or death upon such citizens.” Complaint at ¶ ¶ 15,
17(a).
However Plaintiffs cannot establish a policy of denial of medical care on which to base
municipal liability. It is undisputed that the City had an explicit policy of providing necessary
medical care to arrestees. Exhibit “R”. Plaintiff also cannot establish proof of a pattern of
similar incidents on which to base liability. As such, summary judgment is proper.
b.

Failure to Train/Failure to Supervise Claims

Despite the hodgepodge of various “failure to train” claims in Plaintiffs’ Complaint,
Plaintiff again fails to establish a policy on which to base municipal liability. Complaint at ¶ 17.
As an initial matter, there is no constitutionally mandated law enforcement training, and the
Supreme Court has expressly warned lower courts of the inherent danger involved in such
“judicial legislation”. City of Canton, 489 U.S. at 392, 109 S.Ct. at 1206. The Court stated the
result would be “an endless exercise of second-guessing municipal employee-training programs.
This is an exercise we believe the federal courts are ill-suited to undertake, as well as one that
would implicate serious questions of federalism.” Id.

- 26 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 27 of 31

To succeed on a failure to train claim, Plaintiff must show three things: “(1) the training
procedures of the municipality’s policymaker were inadequate, (2) the policymaker was
deliberately indifferent in adopting the training policy, and (3) the inadequate training policy
directly caused the plaintiff’s injury.” Connor v. Travis County, 209 F.3d 794, 796-97 (5th Cir.
2000) (quoting Baker v. Putnal, 75 F.3d 190, 200 (5th Cir.1996)). See also Spiller v. City of
Texas City, 130 F.3d 162, 167 (5th Cir. 1997).
The inadequacy of police training may serve as the basis for Section 1983 liability only
where a municipality’s failure to train its employees in a relevant respect evidences a deliberate
indifference to the rights of its inhabitants. Burge v. Parish of St. Tammany, 187 F.3d 452,472
(5th Cir. 1999). It must be proven that the alleged deficiency in training actually caused the
failure of the employee or officer to perform his duty constitutionally. Id.

Deliberate

indifference is more than mere negligence. See Rhyne v. Henderson County, 973 F.2d 386, 392
(5th Cir.1992) (“While the municipal policy-maker’s failure to adopt a precaution can be the
basis for § 1983 liability, such omission must amount to an intentional choice, not merely an
unintentionally negligent oversight.”); see also Doe v. Taylor Independent Sch. Dist., 15 F.3d
443, 453 n. 7 (5th Cir.1994) (distinguishing “deliberate indifference” from “gross negligence” by
noting that “the former is a ‘heightened degree of negligence,’ [whereas] the latter is a ‘lesser
form of intent’ “) (quoting Germany v. Vance, 868 F.2d 9, 18 n. 10 (1st Cir.1989)).
The Fifth Circuit has declined to find governmental liability in a failure to train case
where the law enforcement officers in question had successfully completed the minimum
training mandated by state law and had been certified by the state. Benavides v. County of
Wilson, 955 F.2d 968, 973 (5th Cir. 1992).

- 27 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 28 of 31

In this case, with the exception of Officer Strickler, who was a reserve officer, all of the
officers involved had attended the police academy, received the state mandated law enforcement
training, graduated, and were certified under Mississippi law as law enforcement officers. See
Training Records of Officers, Attached to Defendants’ Motion as Exhibit “BB”. It is also
undisputed that at all material times, Officer Strickler was being supervised or was accompanied
by a certified officer. The officers who administered pepper spray on Malone during his efforts
to avoid arrest or to escape, Officers Welton and Weeks, both had received training in pepper
spray. See Pepper Spray Training Certificate for Chris Weeks, Attached to Defendants’ Motion
at Exhibit “CC”; Exhibit “P”; Derrick Welton at 8-9, 11, Chris Weeks at 5. Last but not least,
Plaintiff cannot prove any lack of training that led to a constitutional deprivation.
Plaintiffs’ various “failure to supervise” claims are in actuality no different from their
“failure to train” claims, and are treated no differently by the Fifth Circuit. See Estate of Davis v.
City of North Richland Hills, 406 F.3d 375, 383 n. 34 (5th Cir. 2005) (“Plaintiffs' attempt to
distinguish the present case as involving supervision as opposed to training is unpersuasive.”) As
detailed above, claims of inadequate supervision and claims of inadequate training both
generally require that the plaintiff demonstrate a pattern. Burge v. St. Tammany Parish, 336, 370
(5th Cir. 2003). Likewise, the alleged failure to supervise must constitute a deliberate indifference
to the plaintiff's constitutional rights.” Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003).
Plaintiffs cannot establish either a pattern of failure of supervision that led to constitutional
injury or deliberate indifference by the City of Moss Point as to the supervision of its police
officers. As such, summary judgment is proper as to Plaintiffs’ claims of failure to train and
supervise.

- 28 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 29 of 31

c.

Failure to Discipline Claim.

The Fifth Circuit previously has addressed this type of claim, in which a plaintiff alleges
that a policy or custom necessary for municipal liability can be assumed from a city’s failure to
discipline officers. The Court noted that where there is no pattern of complaints by other citizens
“it is nearly impossible to impute lax disciplinary policy to the City without showing a pattern of
abuses that transcends the error made in a single case.” Piotrowski v. City of Houston, 237 F.3d
567, 582 (5th Cir. 2001). See Fraire v. City of Arlington, 957 F.2d 1268, 1278-79 (5th Cir.
1992)(a city’s custom or policy authorizing or encouraging police misconduct cannot be inferred
from a municipality’s isolated decision not to discipline an officer). See also Berry v. City of
Detroit, 25 F.3d 1342, 1354 (6th Cir. 1994) (In the context of an alleged failure to discipline, the
applicable “deliberate indifference” standard requires “a showing of a history of widespread
abuse that has been ignored by the City.”).
In this case, Plaintiffs cannot show a pattern of other complaints of police misconduct or
abuse and no pattern of any failure to discipline any officers involved in such alleged
misconduct. Even assuming arguendo there was any conceivable basis for officer discipline in
this case, any alleged failure to penalize the particular Defendant officers in this case is
insufficient to establish a policy or custom on which to base liability. Fraire, 957 F.2d at 1278
(plaintiff must allege pattern of police misconduct and/or that misbehavior was general or
widespread through police force). For the reasons detailed above, summary judgment should be
granted as to Plaintiffs’ failure to discipline claim.12

12

Plaintiffs also allege a purported claim against the City for “failing to establish adequate procedures for and to
conduct thorough internal investigations and reviews of incidents which involve injury and/or death to civilians
while in police custody. “ Complaint at ¶ 15. It is undisputed that the reasonable and proper policy of the City
of Moss Point was to turn over the investigation to an impartial and objective outside law enforcement agency,
in this case, the Criminal Investigation Bureau of the Mississippi Highway Patrol. See John Gager at 6,8.
Likewise, the Police Department’s written policy expressly calls for criminal charges to be filed against any

- 29 JO.99335893.1

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 30 of 31

C.

Plaintiffs Decline Supplemental State Law Jurisdiction and Waive any
Supplemental State Law Claims, which are also Time-Barred.
Plaintiffs’ Complaint expressly declines the Court’s exercise of supplemental state law

jurisdiction pursuant to 28 U.S.C. § 1367 and asks the Court not to consider matters arising
under the Mississippi Tort Claims Act or the Constitution of the State of Mississippi. Complaint
at ¶ 5. The Mississippi Tort Claims Act provides the exclusive remedy against a governmental
entity or its employee for acts or omissions which give rise to a suit. L.W. and J.A. v. McComb
Separate Municipal School District, 754 So.2d 1136, 1138 (Miss. 1999). As such, Plaintiffs have
waived any possible supplemental state law claims.
IV. CONCLUSION
For all the reasons discussed herein, Defendants respectfully request the Court grant
summary judgment as to all the claims in Plaintiffs’ Complaint and that all costs of this action be
assessed to Plaintiffs.
Respectfully submitted,
THE CITY
Defendants.

BY:

MOSS

POINT,

ET

/s/ Mark Fijman
GARY E. FRIEDMAN (MSB #5532)
MARK FIJMAN (MSB #99153)
PHELPS DUNBAR, LLP
111 EAST CAPITOL STREET, SUITE 600
POST OFFICE BOX 23066
JACKSON, MISSISSIPPI 39225-3066
TELEPHONE: (601) 352-2300
FACSIMILE: (601) 360-9777

officer found to have used unjustified force. Exhibit “R”.

- 30 JO.99335893.1

OF

AL.,

 Case 1:00-cv-00074-LG-JMR Document 68 Filed 08/14/06 Page 31 of 31

CERTIFICATE OF SERVICE
I, MARK FIJMAN, hereby certify that I electronically filed the foregoing with the Clerk
of the Court using the ECF system which sent notification of such filing to the following:
Mark V. Knighten
Attorney at Law
P.O. Box 10
Pascagoula, Mississippi 39568
John Peyton Randolph, II
613 Steed Road
Ridgeland, Mississippi 39157
THIS, the 14th day of August, 2006.
/s/ Mark Fijman
MARK FIJMAN

- 31 JO.99335893.1