Neal, Jr. v. Hinds County, Mississippi et al, No. 3:2018cv00590 - Document 69 (S.D. Miss. 2021)
Court Description: ORDER granting in part and denying in part 61 Motion for Summary Judgment; granting 67 Motion for Leave to File Excess Pages. Signed by District Judge Carlton W. Reeves on 4/6/21. (AC)
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Neal, Jr. v. Hinds County, Mississippi et al Doc. 69 ____________________ No. 3:18 CV 590 CWR FKB MELVIN NEAL, JR., Plaintiff, v. HINDS COUNTY, MISSISSIPPI, ET AL. Defendants. ____________________ ORDER ON SUMMARY JUDGMENT ____________________ Before CARLTON W. REEVES, District Judge. Before the Court is a Motion for Summary Judgment filed by Defendants Hinds County, Sheriff Victor P. Mason, Lt. An thony Simon, Sgt. Jamie Caston, and Sgt. John Scott. Docket No. 61. The matter is fully briefed and ready for adjudication. Dockets.Justia.com After review, the motion will be granted in part and denied in part.1 I. Factual and Procedural History This matter arises from an amended complaint that Plaintiff Melvin Neal, Jr. filed in February 2019. Neal alleges that in December 2017, while he was in custody and being trans ported by Hinds County between the Raymond Detention Center (RDC) and the Hinds County Work Center, he was brutally attacked by Defendants Lt. Anthony Simon, Sgt. Ja mie Caston, and Sgt. John Scott, and thereafter denied medi cal treatment. Docket No. 21. With the evidence now in, Neal and the Defendants have widely divergent accounts of what happened. Defendants claim that Neal had contraband—a chip bag with what ap peared to be a “rolled up joint” in it, Docket No. 61 at 2 3— while Neal claims that he possessed no such contraband. Docket No. 65 at 3. Defendants insist that in the course of at tempting to seize the contraband, Neal “punched at” one of them. Docket No. 61 at 4. Neal denies resisting at all. Docket No. 65 at 3. Defendants claim that they “asked” Neal to cease resisting, after which they employed a “strong muscle” tech nique to take “him to the ground” and then handcuff him. Docket No. 61 at 4. Defendants suggest that in the course of detaining Neal, he swallowed the purported contraband—an other detail that Neal denies. Neal claims that he was kicked in the right side of the head and face and that he “suffered clear and more than de minimis 1 Defendants’ Motion for Leave to File Excess Pages is also granted. Docket No. 67. 2 injuries . . . .” Docket No. 65 at 3 4. Defendants deny punching or kicking Neal, and even deny that he had any visible bruises or physical injuries. Docket No. 61 at 5. They go on to claim that even if Neal sustained such injuries, “such injuries are simply de minimis in nature . . . .” Docket No. 65 at 14. Then there are the medical care claims. Defendants claim that Neal refused medical care at least twice.2 Neal, however, claims that after seeing a jail nurse and receiving painkillers, he was never given any further medical treatment. He sub mits to this Court a transcription and copy of a handwritten nurse’s note which appears to document extensive injuries he sustained as a result of the incident. See Docket No. 64 at 3; Docket No. 64, Exhibit 2. Neal was unable to produce the nurse who wrote the note, however, and cannot ascertain her whereabouts “despite multiple requests by Plaintiff.” Docket No. 64 at 4. In the litigation, this Court dismissed Neal’s state law claims, Docket No. 39, but allowed the matter to proceed after grant ing in part and denying in part Defendants’ motion for judg ment on the pleadings. Docket No. 41. Discovery commenced on Neal’s constitutional claims alleging excessive force and denial of medical treatment, arising under 42 U.S.C. § 1983. Defendants now come before this Court seeking summary judgment. Docket No. 61. II. Legal Standard A court shall grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any 2 It is not clear why someone who sustained no injuries would need to decline medical care twice. 3 material fact and the movant is entitled to judgment as a mat ter of law.” Fed. R. Civ. P. 56(a). “A genuine dispute of mate rial fact exists ‘if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.’” Ahders v. SEI Priv. Tr. Co., 982 F.3d 312, 315 (5th Cir. 2020) (citation omit ted). When considering such a motion, “the court must view the facts in the light most favorable to the non moving party and draw all reasonable inferences in its favor.” Deville v. Mar cantel, 567 F.3d 156, 163–64 (5th Cir. 2009). Although a court should “consider all of the evidence in the record” at this stage, it must “refrain from making credibility determinations or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation omitted). Ulti mately, “summary judgment is appropriate if a reasonable jury could not return a verdict for the nonmoving party.” Id. (citation omitted). III. Discussion A. Exhaustion In their motion, Defendants for the first time raised the argu ment that Neal had not exhausted the grievance process be fore filing suit in this Court, as required by the Prison Litiga tion Reform Act (“PLRA), 42 U.S.C. § 1997e. In an April 1 hearing, Defendants conceded that they failed to raise the de fense in their answer to Neal’s amended complaint. Defend ants’ tardiness in raising the argument results in waiver, as “the failure to exhaust administrative remedies is an affirma tive defense and must generally be pled by defendants in or der to serve as the basis for dismissal.” Herschberger v. Lump kin, No. 19 20481, 2021 WL 485794, at *3 (5th Cir. Feb. 9, 2021) 4 (citing Carbe v. Lappin, 492 F.3d 325, 327 28 (5th Cir. 2007); Jones v. Block, 549 U.S. 199, 216 (2007)).3 The Court thus finds that Defendants waived their defense under the PLRA re garding exhaustion, and will continue onto the merits of the motion.4 B. Individual Capacity Claims As with any case in which defendants raise a qualified im munity defense as to their individual liability, courts are bound by the principle that “[q]ualified immunity shields an officer from suit when she makes a decision that, even if con stitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (quotation marks and citation omitted). 3 “Federal Rule of Civil Procedure 8(c) requires an affirmative defense to be set forth in a defendant’s responsive pleading, with the failure to com ply usually resulting in waiver of the defense.” Vanhoy v. United States, 514 F.3d 447, 450 (5th Cir. 2008). A well established exception to this general rule is if “a defendant raises the issue at a pragmatically sufficient time, and if the plaintiff is not prejudiced in its ability to respond, there is no waiver of the defense.” Id. (quotation marks and citations omitted). The question of prejudice “considers whether the plaintiff had sufficient notice to prepare for and contest the defense.” Lee v. United States, 765 F.3d 521, 525 (5th Cir. 2014) (citation omitted). Waiting until summary judgment to raise the defense does prejudice Neal here, as exhaustion is a fact intensive question—one that might be ex cused, for example, through a sufficient showing under certain facts—that could have been developed during discovery had Neal been on notice. 4 In the April 1 hearing, Neal’s counsel claimed that even if Defendants had not waived their defense, the PLRA is inapplicable to pretrial detain ees. This is wrong. See Moore v. St. Tammany Par. Jail, 113 F. App’x 585, 586 (5th Cir. 2004). 5 The qualified immunity analysis is familiar to this Court. See, e.g., Jamison v. McClendon, 476 F. Supp. 3d 386 (S.D. Miss. 2020). Although the two steps need not be taken in a particu lar order, Pearson v. Callahan, 555 U.S. 223, 236 (2009), “a court must [first] decide whether the facts that a plaintiff has al leged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly estab lished’ at the time of defendant’s alleged misconduct.” Id. at 232 (citations omitted).5 The Fifth Circuit has elaborated on what is required to show that the issue was clearly established by stating that “‘[t]he contours of the right must be suffi ciently clear that a reasonable official would understand that what he is doing violates that right.’ This inquiry ‘requires an assessment of whether the official’s conduct would have been objectively reasonable at the time of the incident.’” Wilkerson v. Goodwin, 774 F.3d 845, 851 (5th Cir. 2014) (citations omit ted). Notably, “a court may consider either condition first, and if either condition does not obtain,” immunity follows, Baldwin v. Dorsey, 964 F.3d 320, 325 (5th Cir. 2020) (citation omitted), though “[i]f the plaintiff fails at either step, the federal court can grant qualified immunity by addressing either step or both of them.” Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (citations omitted). 5 Although the trial court can skip straight to the second question concern ing clearly established law, the Fifth Circuit has “repeatedly emphasized that there is value in addressing both questions ‘to develop robust case law on the scope of constitutional rights.’” Roque v. Harvel, F.3d , 2021 WL 1220156, at *3 (5th Cir. Apr. 1, 2021) (citations omitted). 6 In Neal’s case, there are two claims that would each inde pendently constitute violations of the Constitution: excessive force and denial of medical care. This Court considers each in turn. 1. Excessive Force For the reasons below, although this Court finds that Neal has demonstrated a genuine factual dispute about whether he was subject to unconstitutionally excessive force, he fails to sufficiently demonstrate that the conduct at issue violated clearly established law. a. Constitutional Violation Viewing the facts in the light most favorable to Neal, as the Court must at this stage, Neal puts forward an account in which he was wantonly kicked and injured by officers and thereafter received minimal medical treatment despite the recommendations of a health care provider. Both parties’ briefs apply the Eighth Amendment to Neal’s claims, and thus the Court accepts that the question before it is whether the Eighth Amendment was violated by the appli cation of excessive force.6 To analyze such a claim at the sum mary judgment stage, this Court must consider the factors set forth in Hudson v. McMillan. 503 U.S. 1 (1992). These are: 6 At oral argument, Neal attempted to present new evidence that he was a pretrial detainee and, therefore, subject to the Fourteenth Amendment excessive force standard. The evidence to which Neal’s counsel alluded is not before the Court, though, since it was not included in Neal’s opposi tion to summary judgment and was not the subject of a motion to supple ment the record. Regardless, the issue is moot because of the briefing fail ure at step two of the qualified immunity analysis. 7 (1) the extent of [the] injury suffered, (2) the need for [the] application of force, (3) the rela tionship between that need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful re sponse. Bourne v. Gunnels, 921 F.3d 484, 491 (5th Cir. 2019) (quoting Hudson, 503 U.S. at 7) (quotation marks omitted). The factual dispute over the degree of Neal’s injuries is largely irrelevant to the question of excessive force, as the Su preme Court has clarified that “[a]n inmate need not establish a ‘significant injury’ to pursue an excessive force claim be cause ‘[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.’” Id. at 492 (citing Wilkins v. Gaddy, 559 U.S. 34, 37 38 (2010)). In this regard, Neal has “demonstrated a genuine dispute of material fact, namely, whether the force employed . . . was used ‘in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Id. (quoting Hudson, 503 U.S. at 6). There is a genuine dispute in the record over whether the force deployed by De fendants was provoked by Neal’s resistance, or, rather, was unprovoked altogether. Upon review of the exhibits and fil ings in the light most favorable to Neal, this Court concludes that Neal has demonstrated a genuine factual dispute about whether he was subject to a good faith effort to restore disci pline by Defendants or, rather, a malicious attack. 8 b. Clearly Established Law We now turn to the second prong of the qualified immunity analysis. As the Fifth Circuit has held, “the dispositive ques tion in this step of the qualified immunity analysis is ‘whether the violative nature of particular conduct is clearly estab lished.’ Cases that are ‘too factually distinct to speak clearly to the specific circumstances here’ are not enough to deny qualified immunity.” Cleveland, 938 F.3d at 677 (citations omitted). At the same time, however, the Supreme Court has made clear that “general statements of the law are not inherently incapable of giving fair and clear warning, and in other in stances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question . . . .” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also Taylor, 141 S. Ct. at 52 (citing Hope, 536 U.S. at 741, 745; United States v. Lanier, 520 U.S. 259, 271 (1997)). No tably, in light of this principle, the Supreme Court recently vacated and remanded a Fifth Circuit case, McCoy v. Alamu, which had held, among other things, that “[f]act intensive balancing tests alone (such as the Hudson factors) are usually not ‘clear’ enough, because the illegality of the particular con duct at issue must be undebatable.” 950 F.3d 226, 234 (5th Cir. 2020) (citations omitted), cert. granted, judgment vacated, No. 20 31, 2021 WL 666347 (U.S. Feb. 22, 2021).7 Even in light of the Supreme Court’s vacatur of McCoy, the bar set by the “clearly established” prong remains high. 7 This Court previously discussed the constraints that the Fifth Circuit’s decision in McCoy v. Alamu imposed on litigants and courts. See Jamison, 476 F. Supp. 3d at 404 n.128, 406. 9 Courts need not search for relevant precedent to determine whether the law was clearly established, because “in the con text of qualified immunity, it is the plaintiff’s burden to estab lish that an allegedly violated right was clearly established.” Mayfield v. Currie, 976 F.3d 482, 487 (5th Cir. 2020), as revised (Sept. 23, 2020). In other words, “[a] plaintiff must ‘identify a case—usually, a body of relevant case law—in which an of ficer acting under similar circumstances was held to have vi olated the Constitution.’” Roque v. Harvel, F.3d , 2021 WL 1220156, at *5 (5th Cir. Apr. 1, 2021) (citation omitted). Applying this rule, this Court must conclude that Neal has not carried the burden required of him. Neal’s response in op position to Defendants’ motion and accompanying memoran dum are devoid of any citations to caselaw that would satisfy the demands of this second prong, or any other arguments that might bear on this question.8 Rather, in his responsive fil ings to the motion for summary judgment, Neal offers the conclusory statement that “[t]here is a jury question here.” Docket No. 65 at 14. While the undersigned has expressed his doubts about the constitutionality of qualified immunity, see Jamison, 476 F. Supp. 3d at 406, it remains true that “qualified immunity is the law of the land and the undersigned is bound to follow its terms absent a change in practice by the Supreme Court.” Id. at 409. The clearly established prong remains an integral part of this doctrine. As such, the Court must grant summary judg ment on Neal’s excessive force individual capacity claims. 8 Rather, eight pages of Neal’s response to summary judgment contain a verbatim copy of the undersigned’s opinion in Jamison v. McClendon. 10 2. Denial of Medical Care We now turn to Neal’s individual capacity claim that he was denied medical care in violation of the Constitution. As with the excessive force claim, both parties cite the Eighth Amend ment or its concomitant standards, so this Court considers the claim under the Eighth Amendment. For the reasons below, this Court again concludes that Neal has demonstrated a gen uine factual dispute over whether his Eighth Amendment rights were violated, but fails to sufficiently demonstrate that the conduct at issue violated clearly established law. a. Constitutional Violation To make out a violation of the Eighth Amendment in the con text of a denial of medical care at the hands of prison officials, the Fifth Circuit has laid out the following steps: The prisoner “must first prove objective expo sure to a substantial risk of serious harm”—in other words, the prisoner must prove a serious medical need. Second, the prisoner must prove the officials’ subjective knowledge of this sub stantial risk. Third, the prisoner must prove that the officials, despite their actual knowledge of the substantial risk, denied or delayed the pris oner’s medical treatment. Finally, the prisoner must prove that the delay in or denial of medi cal treatment resulted in substantial harm, such as suffering additional pain. Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019) (citations omitted). Defendants first insist that Neal was not visibly injured, and thus they had no subjective knowledge that Neal required 11 medical attention. Neal, on the other hand, points to evidence that the nurse who later saw him documented obvious signs of injury, which in turn suggests that there is a genuine factual dispute as to whether Defendants actually possessed such subjective knowledge. Additionally, there is a genuine factual dispute about whether there was a delay or denial of medical care. As one example of the intricacy of this dispute, Defendants claim that “[Neal] was so adamant that he did not require medical atten tion that he executed a ‘Treatment Refusal Form’ following the incident.” Docket No. 62 at 18. And yet, a review of the form submitted by Defendants shows that Neal refused to sign the form, which indicates a dispute over whether or how Neal refused care. See Docket No. 62, Exhibit H. Neal claims, on the other hand, that “he requested treatment after the as sault, that it was ordered by a doctor, but was specifically de nied by Defendants.” Docket No. 65 at 3. At the very least, thus, there is a factual dispute as to whether Neal in fact re fused care, which would inform a determination as to whether officials delayed or denied medical treatment, as well as whether any delay or denial resulted in substantial harm and additional pain.9 9 It is, in fact, possible that Neal did refuse treatment as Defendants suggest but then later received it. It is not clear from the evidence and filings, which is why the question remains a triable one, as it is material to the deliberate indifference analysis. As at least one additional example of where the ev idence before the Court points to a material dispute over the timeline and facts surrounding Neal’s medical care, Defendants have submitted a re fusal form that Neal did not sign, see Docket No. 62, Exhibit H, which is different than the refusal form that Neal submitted, which he did sign. See Docket No. 64, Exhibit 17. 12 b. Clearly Established Law The second prong of the qualified immunity analysis remains the same. See Petzold, 946 F.3d at 255. And this Court must again come to the same conclusion as it did with respect to Neal’s excessive force claim. Neal may have raised a genuine issue of material fact as to whether he was subjected to deliberate indifference in viola tion of the Eighth Amendment, but a review of his filings il lustrates a failure to point out how the conduct violated clearly established law. Neal points to no decisional law that applies with obvious clarity to his particular case, but rather focuses on the factual dispute about the nature of care he re ceived.10 In this regard, Neal fails to articulate an argument as to how this Court could determine that Defendants’ conduct was not objectively reasonable and violated clearly estab lished law. For the foregoing reasons, the Court must grant qualified im munity to Defendants regarding the individual capacity claims, and grant summary judgment accordingly. C. Official Capacity Claims Against All Defendants Finally, this Court must consider the claims against Defend ants in their official capacities. 10 Neal’s reference to Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001), see Docket No. 65 at 16, is insufficient, as it merely re cites the legal standard for showing deliberate indifference. Neal would have needed to focus on the facts of Domino in order to show that it is not one of the “[c]ases that are ‘too factually distinct to speak clearly to the specific circumstances here.’” Cleveland, 938 F.3d at 677 (citations omitted). 13 Official capacity claims against officers employed by local governments under 42 U.S.C. § 1983 are akin to claims against the local government itself. See McMillian v. Monroe Cty., Ala., 520 U.S. 781, 785 n.2 (1997) (“[A] suit against a governmental officer in his official capacity is the same as a suit against [the] entity of which [the] officer is an agent”); see also Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978). As such, all official capacity claims brought by Neal will be considered under the familiar Monell framework as if they are brought against Defendant Hinds County alone.11 In order to survive summary judgment under the Monell standard, “Plaintiffs must demonstrate that a question for trial remains as to whether ‘action pursuant to official munic ipal policy caused their injury.’’’ Hicks Fields v. Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017) (citation omitted). “Put differently, ‘[t]o establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force be hind the violation of a constitutional right.’” Id. (citation omit ted). For the reasons explained below, the Court must grant sum mary judgment on Neal’s official capacity claim concerning the denial of medical care, but denies summary judgment on his claim concerning excessive force. 11 Municipalities such as Hinds County “may not be held liable under § 1983 on a basis of vicarious liability.” Hicks Fields v. Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017). 14 1. a. Excessive Force Policy or Custom The first prong of municipal liability can be met through the showing of an official policy or custom, or, in other words, by proving “official policy through practice.” Id. Official municipal policy includes the decisions of a government’s lawmakers, the acts of its pol icymaking officials, and practices so persistent and widespread as to practically have the force of law. . . . Plaintiffs [alleging custom] must therefore demonstrate that there existed a per sistent, 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 cus tom that fairly represents municipal policy. Plaintiffs must also establish actual or construc tive knowledge of such custom by the munici pality or the official who had policymaking au thority. Id. (quotation marks, citations, and brackets omitted). Neal makes extensive reference to a Department of Justice re port that came out over two years prior to his incident regard ing the conditions at RDC. Such reports “may be especially relevant in Monell claims, where the plaintiff is burdened with demonstrating a systemic failing—‘exactly what the 15 Department of Justice experts were looking for.’” Id. at 810 (citation omitted); see also Docket No. 64, Exhibit 7.12 On one hand, Neal’s references to the report’s findings con cerning RDC alone are not entirely helpful. This is because even though Neal was housed at that facility, his incident happened at a different facility (the Hinds County Work Cen ter), in the process of being transferred from RDC.13 12 Defendant’s counsel suggested in the April 1 hearing that such reports may not be competent evidence for this Court to consider. But as the Fifth Circuit makes clear, such reports may not be competent for the same rea sons any other evidence might not be competent: “Depending on the na ture of the report at issue and the specific circumstances of a particular case, such a report might not withstand scrutiny under other evidentiary rules.” Hicks Fields, 860 F.3d at 810 n.21. Defendants make two arguments about the excludability of the report. One argument is that it is hearsay and the other is that it is prejudicial. See Docket No. 68 at 4 5. Regarding the prejudice argument, this Court concludes that the report is not so prejudicial as to risk confusing the issues such that a jury will be misled. As discussed above, Neal establishes a sufficient argument as to the relevance of the report to the conditions at the work facility as appli cable to Neal’s particular claims. Regarding hearsay, the Court also rejects Defendants’ argument. Even if it were to find that the report contains inadmissible hearsay, the DOJ re port is considered a public record under Federal Rule of Evidence 803(8). See Fed. R. Evid. 803(8). The report sets out “factual findings from a legally authorized investigation,” id. 803(8)(A)(iii), as required in a civil proceed ing such as this, and Defendants have not shown that there is a lack of trustworthiness in the report. Id. 803(8)(B). 13 The DOJ report states that “[t]he Sheriff’s Department also operates a Work Release Center next to the Raymond Facility. We did not specifically review conditions at the Work Release Center, because it is a distinct and separate minimum security, state county operation.” Docket No. 64, 16 On the other hand, there is an alternative basis for why Neal’s references to the report are sufficient to meet his “burden of showing a genuine dispute of material fact as to the existence of a ‘persistent, widespread practice of city officials or em ployees, 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.’” Hicks Fields, 860 F.3d at 810 11 (citation omitted). It is the claim that Hinds County continued to employ unconstitu tional customs in light of an outdated excessive force policy and notice from DOJ that such customs were inappropriate. As Neal states, It should be of note to this Court that the poli cies and procedures regarding use of force in place for Defendants at the time of this incident on December 28, 2017 and as testified to by Hinds County and former Sheriff Victor Mason himself were effective . . . The DOJ report . . . specifically found [that] Hinds County’s Use of Force Policy was insufficient . . . . Docket No. 65 at 21. In this regard the DOJ report is relevant even though it fo cuses on a different facility. The report states that “[w]e found that the Jail [operated by Hinds County next to the work cen ter where Neal’s incident took place] does not have adequate . . . policies and training for officer use of force,” Docket No. 64, Exhibit 7, at 13, and documents a pattern of abuse of force Exhibit 7, at 3 4. According to the evidence before this Court, it was during intake at this work center where the incident occurred. See, e.g., Docket No. 61, Exhibit C, at 16. 17 by officers.14 Officers at the work facility undergo the same training as officers at the RDC. Docket 61, Exhibit C, at 11 (Lt. Simon stating “[w]e all – we’re all one division. We just have three facilities.”). Neal thus sufficiently raises the material is sue as to whether—by the time of Neal’s incident—officers at the Work Center still lacked sufficient training, staffing, and equipment under the same use of force policy and, as a result, continued to customarily misapply it. See, e.g., Docket No 64, Exhibit 12 at 16 (Sheriff Victor Mason stating, in response to the question as to whether “if [officers] had more people [at the facility]” whether they would use force as often as they do in practice, that “I think if they had more people there, it would help, because, number one, the guys were outnum bered either way.”).15 14 Perhaps most relevant to Neal’s claims are the report’s references to of ficers responding with disproportionate force when provoked by inmates. Docket No. 64, Exhibit 7, at 14 15. That is, even though Neal raises a triable issue of material fact as to whether he provoked the incident in the first place, it is possible that officers’ use of force was disproportionate even if Neal threw a punch. As discussed above, though the report covers an adjacent facility and not the detention center itself, that officers undergo the same training at least raises the triable issue as to whether—after sufficient notice in light of the DOJ report—whether the customs described in the report endured. 15 After a review of the DOJ report, moreover, and in light of the relation ship established above regarding the two facilities, this Court concludes that for the purposes of summary judgment, some of the examples cited by the DOJ do “resemble—with sufficient similarity—the constitutional violations alleged by Plaintiffs so as to establish the required pattern of that unconstitutional conduct.” Hicks Fields, 860 F.3d at 810. Compare Docket No. 64, Exhibit 7 at 13 (“Our consultant examined dozens of inci dent reports . . . and could not find any in which the supervisor even indi cated agreement, disagreement, or a need for follow up action.”), with 18 For these reasons, the Court concludes that Neal has satisfied this first prong of the Monell analysis. b. Policymaker’s Knowledge “If a custom is alleged, ‘actual or constructive knowledge of such custom’ must be attributable to the governing body or to someone else to whom policy making authority was dele gated.” K.B. v. Adams, 480 F. Supp. 3d 746, 756 (S.D. Miss. 2020) (citing Angel v. La Joya Indep. Sch. Dist., 717 F. App’x 372, 378 (5th Cir. 2017)). A “policymaker,” in turn, “is someone who is responsible ‘for making law or setting policy in any given area of a local government’s business.’” Id. at 755 (quot ing Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010)). This prong is easily satisfied here. Neal interviewed Sheriff Victor Mason, who acknowledged in his deposition his re sponsibility for setting policy for the facility where the inci dent at issue took place. See Docket No 64, Exhibit 12, at 7 8. Constructive knowledge may be established “where the vio lations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity.” Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984). By pointing out the Sheriff’s knowledge of the DOJ re port and his subsequent discussion of it for the purposes of policy and custom that would affect individuals in Neal’s po sition at the work facility, see Docket No. 64, Exhibit 12, Neal sufficiently shows that the Sheriff possessed the requisite knowledge. Docket No. 64, Exhibit 10 (use of force report in Neal’s case that merely describes Neal’s complaint about injuries). 19 c. Moving Force Finally, “[i]n addition to culpability, there must be a direct causal link between the municipal policy and the constitu tional deprivation. Monell describes the high threshold of proof by stating that the policy must be the ‘moving force’ be hind the violation.” Piotrowski v. City of Hous., 237 F.3d 567, 580 (5th Cir. 2001) (citations omitted). “Plaintiffs must estab lish both the ‘causal link (moving force) and the City’s degree of culpability (deliberate indifference to federally protected rights).’” K.B., 480 F. Supp. 3d at 758 (quoting Piotrowski, 237 F.3d at 580). Upon review of the record, this Court concludes that for the purposes of summary judgment, Neal has sufficiently estab lished a material dispute as to whether Hinds County’s cus tom of excessive force was the moving force behind the inju ries he sustained. His argument that facilities were under staffed and lacked sufficient equipment, on top of shortcom ings in training and certification that thereby exacerbated of ficers’ propensity for the use of force—all of which is substan tiated by the evidence before this Court—is sufficient to es tablish the required causal connection. 2. Denial of Medical Care Unlike the excessive force official capacity claim above, this Court must grant summary judgment with respect to Neal’s denial of medical care official capacity claim. Neal fails to point to a policy or custom, let alone the remaining elements required under Monell, that would suffice to survive sum mary judgment for this claim. Rather, the entirety of Neal’s argument as it pertains to the Monell analysis bears solely on the excessive force claim. 20 For the foregoing reasons, this Court grants summary judg ment on the official capacity claims concerning denial of med ical care. IV. Conclusion For the foregoing reasons, Defendants’ motion for summary judgment is granted in part and denied in part. The Court grants summary judgment with respect to all individual ca pacity claims. Similarly, the Court grants summary judgment on all official capacity claims relating to the denial of medical care. However, summary judgment is denied with respect to the official capacity excessive force claim, and thus on this matter alone, Neal may proceed to trial. SO ORDERED, this the 6th day of April, 2021. s/ CARLTON W. REEVES United States District Judge 21
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