Renfroe v. Parker

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

AMANDA KAY RENFROE, PLAINTIFF

INDIVIDUALLY AND AS THE

NEXT FRIEND OF S.W.R.

V. CIVIL ACTION NO. 3:18-CV-609-DPJ-LRA

ROBERT DENVER PARKER DEFENDANTS

AND RANDALL TUCKER

ORDER

Defendants Madison County Sheriff’s Deputy Robert Denver Parker and Madison

County Sheriff Randall Tucker seek summary judgment on Plaintiff Amanda Kay Renfroe’s

claims against them in their individual capacities. Mot. Summ. J. [17]. Renfroe asks the Court

to strike one of Defendants’ exhibits in support of their summary-judgment motion and to strike

certain relief requested in Defendants’ memorandum. Mot. to Strike [32]; Mot. to Strike [38].

For the following reasons, Defendants’ motion is granted, and the individual-capacity claims are

dismissed. Plaintiff’s motion to strike the relief requested is granted, but her motion to strike

Defendants’ exhibit is considered moot. Finally, Plaintiff will be given 14 days to show cause

why the official-capacity claims should not be dismissed.

I. Facts and Procedural History

This case arises from the fatal shooting of Renfroe’s husband, Michael Wayne Renfroe,

by Defendant Parker on June 8, 2018.1 That morning, Faye Burns Renfroe, Michael’s mother,

learned that Michael “was walking down the side of Highway 43 . . . completely naked.” Am.

Compl. [13] ¶ 11. According to the Amended Complaint, Faye “sought assistance from the

1 All references to “Renfroe” in this order will be to Plaintiff Amanda Kay Renfroe. Other

individuals who share that last name will be referred to by their first names.

Madison County Sheriff’s Office . . . in safely and kindly taking Mike . . . into protective custody

pending an involuntary commitment proceeding.” Id. ¶ 14.

Later that evening, the Madison County Sheriff’s Department received a 911 call from

Willard McDaniel advising “that he suspected two people may have attempted to burglarize his

truck.” Id. ¶ 17. He “described the suspects as occupying a white or grey Ford pick-up truck

with a 4-wheeler all terrain vehicle loaded in the back of the bed.” Id. The dispatcher then

alerted all available units that a possible burglary was in progress. Defendant Parker responded

to the call and drove to the scene. He knew nothing about Faye’s earlier call to the Madison

County Sheriff’s Department seeking to commit Michael.

What happened next was recorded on the dashcam in Parker’s patrol car. Driving down a

dark and otherwise deserted street, Parker came upon a white Chevrolet truck parked just off the

road. When Parker stopped his patrol car a reasonable distance from the truck, Michael

emerged, shirtless, from its driver’s side. He took approximately 18 steps toward Parker with his

arms extended out by his side and then—without verbal instructions from Parker—dropped to

his hands and knees in the middle of the road. Seconds later, Michael suddenly rose and bull

rushed toward Parker yelling, according to Parker, “Now, motherfucker, let’s do this.” Parker

Decl. [17-1] ¶ 13. Parker stands 5’11” and weighs approximately 150 pounds; Michael was 6’2”

and weighed 205 pounds.

In response, Parker first attempted non-lethal force by deploying his taser as Michael

approached. Though the darts hit his chest, Michael continued charging, and approximately two

seconds later, Parker’s vehicle was visibly jostled when Michael apparently reached Parker. The

rest of the encounter occurred beyond the camera’s view, though an audible struggle can be

heard in the background. Parker says Michael tried to choke him and struck him on the side of

the head while pinning Parker against his vehicle. According to Parker, he realized that he could

not escape the assault, so he drew his weapon and fired four gunshots in rapid succession into

Michael’s center mass.2

All of this transpired quickly. The entire encounter—from the time Michael opened the

door to his truck until the fourth gunshot was fired—lasted less than a minute. And only eight

seconds elapsed between the time Parker deployed his taser and the final shot.

Renfroe filed this lawsuit against Parker and Sheriff Tucker, in their official and

individual capacities, on August 31, 2018. In her Amended Complaint [13] she asserts a § 1983

claim for excessive force as well as state-law tort claims. Defendants moved for summary

judgment “as to the individual liability claims asserted against them” on January 31, 2019, and

the parties engaged in a brief period of immunity-related discovery. Mot. Summ. J. [17] at 1.

Renfroe responded to Defendants’ motion and filed two motions to strike, one aimed at an

exhibit Defendants submitted and the other at a request for relief contained within Defendants’

memorandum. Mot. to Strike [32]; Mot. to Strike [38]. The matters raised in all motions have

been fully briefed, and the Court has jurisdiction and is prepared to rule.

II. Standard

Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when

evidence reveals no genuine dispute regarding any material fact and that the moving party is

entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a party who fails to make a showing

2 It is worth noting that Renfroe herself was present at the scene and in a position to observe what

transpired, but she submitted no affidavit contradicting Parker’s version of the incident.

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party moving for summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The

nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing

that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,

factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both

parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make

credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and

legalistic arguments have never constituted an adequate substitute for specific facts showing a

genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.

2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

III. Analysis

In their motion, Defendants seek summary judgment on Renfroe’s claims against them in

their individual capacities. But in their memorandum, they urge the Court to also dismiss the

official-capacity claims. Defs.’ Mem. [24]. This request for relief drew one of Renfroe’s

motions to strike. The Court will first address the individual-capacity claims and then consider

the arguments regarding the official-capacity claims.

A. Individual-Capacity Claims

1. Excessive-Force § 1983 Claims

a. Sheriff Tucker

In their summary-judgment memorandum, Defendants argued that Tucker—who was not

personally involved in the incident with the Renfroes—is entitled to qualified immunity on the

excessive-force claim. Defs.’ Mem. [19] at 17–18. In response, Renfroe said only, “Defendant

Randall Tucker is liable for all acts of his deputies, including the federal civil rights claims that

the plaintiffs are asserting in this case.” Pl.’s Resp. [40] at 12. But “[u]nder section 1983,

supervisory officials are not liable for the actions of subordinates on any theory of vicarious

liability.” Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Renfroe has not, therefore,

“demonstrate[d] the inapplicability” of Tucker’s qualified-immunity defense. McClendon v. City

of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). Defendants’ motion is granted as to the

individual-capacity § 1983 claim against Tucker.

b. Deputy Parker

Parker also relies on qualified immunity as to the excessive-force claim asserted against

him in his individual capacity. As the Fifth Circuit has summarized:

[T]he doctrine of qualified immunity protects government officials from civil

damages liability when their actions could reasonably have been believed to be

legal. This immunity protects all but the plainly incompetent or those who

knowingly violate the law. Accordingly, we do not deny immunity unless

existing precedent must have placed the statutory or constitutional question

beyond debate. The basic steps of this court’s qualified-immunity inquiry are

well-known: a plaintiff seeking to defeat qualified immunity must show: (1) that

the official violated a statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.

Anderson v. Valdez, 845 F.3d 580, 599–600 (5th Cir. 2016) (citation and quotation marks

omitted, punctuation altered).3

“If the defendant’s conduct did not violate [the] plaintiff’s constitutional rights under the

first prong, . . . he is entitled to qualified immunity.” Blackwell v. Laque, No. 07-30184, 2008

WL 1848119, at *2 (5th Cir. Apr. 24, 2008). If the defendant did violate the plaintiff’s

constitutional rights, “the court then asks whether qualified immunity is still appropriate because

the defendant’s actions were ‘objectively reasonable’ in light of ‘law which was clearly

established at the time of the disputed action.’” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.

2010) (quoting Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004)). Finally, “[o]nce an

official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by

establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated

clearly established law.” Id. (noting that qualified-immunity defense alters usual summary-

judgment burden of proof); see McClendon, 305 F.3d at 323 (noting burden is on plaintiff to

“demonstrate the inapplicability of the defense”).

To establish her excessive-force claim, Renfroe must prove Michael “(1) suffered some

injury which (2) resulted from force that was clearly excessive to the need for force; (3) the

excessiveness of which was objectively unreasonable.” Heitschmidt v. City of Hous., 161 F.3d

834, 839 (5th Cir. 1998). In the deadly force context, “[a]n officer’s use of deadly force is not

excessive, and thus no constitutional violation occurs, when the officer reasonably believes that

the suspect poses a threat of serious harm to the officer or to others.” Manis v. Lawson, 585 F.3d

3 Renfroe argues that the qualified-immunity doctrine “violates the separation of powers,” so the

Court should not apply it. Pl.’s Mem. [41] at 19. But this Court must follow binding precedent,

and the Supreme Court continues to apply qualified immunity. See Kisela v. Hughes, 138 S. Ct.

1148 (2018).

839, 843 (5th Cir. 2009). “The question is one of ‘objective reasonableness,’ not subjective

intent, and an officer’s conduct must be judged in light of the circumstances confronting him,

without the benefit of hindsight.” Id. (quoting Ontiveros v. City of Rosenberg, 564 F.3d 379, 382

(5th Cir. 2009)). The Court must pay “careful attention to the facts and circumstances” of the

case, “including the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Finally, “[t]he calculus of

reasonableness must embody allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain and rapidly evolving—about

the amount of force that is necessary in a particular situation.” Id. at 396–97.

Based on this test, Parker did not violate Michael’s Fourth Amendment rights. Parker

came upon Michael’s vehicle—without backup—stopped on the side of a dark road. As far as

Parker knew, Michael was suspected of burglarizing a truck on a homeowner’s property. And

while Michael initially went down on all fours in the middle of the road, he suddenly, and for no

apparent reason, jumped up and charged Parker at full speed yelling, “Now, motherfucker, let’s

do this.” After a taser failed to impede the attack, Parker—the considerably smaller man—found

himself pinned to his vehicle while Michael choked and hit him. And as noted above, Parker

“had mere seconds to assess the potential danger.” Kisela, 138 S. Ct. at 1153 (reversing denial

of qualified immunity). A reasonable officer under these circumstances would have perceived a

threat of death or serious bodily harm, so the use of deadly force was not excessive.

Renfroe disputes this result both factually and legally. Factually, she takes issue with

Parker’s account, but she fails to create a material factual dispute. First, she disputes the quote

Parker attributed to Michael because it was not recorded by the dashcam microphone. Pl.’s

Mem. [41] at 15. But the microphone was inside the patrol car, and Michael was not within

range when he allegedly made the statement. Moreover, Renfroe cites no record evidence

contradicting Parker’s account. Indeed there is no record evidence of the incident other than

Parker’s testimony and the video. Second, she interprets the video as suggesting that Parker first

exited his vehicle “seconds before” shooting Michael. Pl.’s Mem. [41] at 10. Even assuming

that could help her case, the video supports Parker’s explanation. The sound of Parker’s door

opening is heard approximately 42 seconds into the video, just before Michael got on the ground.

In addition, the interior microphone clearly picked up the dispatcher, but Parker’s voice is

muffled and distant, indicating that he exited the vehicle. See Scott v. Harris, 550 U.S. 372, 380

(2007) (holding that district court should have rejected plaintiff’s testimony because it conflicted

with videotape surveillance footage). Third, Renfroe says post-incident photographs of Parker

belie his claim that Michael hit him. While the struggle with Michael may not have left marks

on Parker’s body, the audio from the dashcam and the jostling of the camera clearly support

Parker’s account that he was physically attacked just before he fired the shots. Finally, Renfroe

disputes Parker’s claim that he fired the gunshots while backing up because the dashcam video

establishes that he fired the four shots in rapid succession. Pl.’s Resp. [40] at 5–6. But the fact

that the shots were fired in rapid succession does not necessarily conflict with the shooter edging

backwards over that short period of time. In sum, Renfroe fails to support her factual arguments

with record evidence. But even assuming she is correct, the video still establishes that a

reasonable officer would have been in fear of death or serious physical harm.

Legally, Renfroe primarily argues that “deadly force against a suspect can only be used

[if] the suspect threatens the officer with a weapon, [ ] was necessary to prevent escape, and

where feasible, some warning has been given.” Pl.’s Mem. [41] at 6. Starting with the weapon,

it is factually true that Michael was unarmed. But a weapon is not necessary to create the risk of

serious physical harm. See Guerra v. Bellino, 703 F. App’x 312, 317 (5th Cir. 2017) (finding

use of deadly force against unarmed suspect was reasonable where suspect “charg[ed] almost

directly toward [officer] in the dark from less than a car’s length away”). As for the suggestion

that deadly force may be used only to prevent escape, Renfroe relies on Fraire v. City of

Arlington, 957 F.2d 1268 (5th Cir. 1992). See Pl.’s Mem. [41] at 6–7. But Fraire held that the

officer properly used deadly force “to prevent his own death or great bodily harm” even though

he was not “trying to hinder [a suspect’s] escape.” 957 F.2d at 1276. Finally, regarding the

warning issue, there was little time to react, yet Parker did attempt non-lethal force before he was

attacked.

Because Renfroe has not established a Fourth Amendment violation, Parker is entitled to

qualified immunity on the § 1983 claim against him in his individual capacity. And even

assuming a constitutional violation, Renfroe has not identified a sufficiently relevant case that

would have put Parker on notice that his actions violated Michael’s rights. See Kisela, 138 S. Ct.

at 1153 (reversing denial of qualified immunity where facts did not fit clearly established law).4

2. State-Law Claims

Defendants argued in great detail that Renfroe’s state-law claims against them in their

individual capacities are likewise ripe for summary judgment. Defs.’ Mem. [19] at 19–24.

Renfroe ignored those arguments, focusing instead on the § 1983 excessive-force claim.

Defendants’ arguments appear meritorious, and Renfroe has otherwise abandoned the state-law

individual-capacity claims. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir.

4 Renfroe argues that the Court should disregard Defendants’ expert’s declaration. Pl.’s Mem.

[41] at 11–14. The Court has not relied on either of the experts’ submissions in ruling on the

present motions.

2006) (“[Plaintiff’s] failure to pursue this claim beyond [the] complaint constituted

abandonment.”). Summary judgment is warranted as to these claims.

B. Official-Capacity Claims

Defendants did not include the official-capacity claims in their summary-judgment

motion. Instead, they asked the Court to “sua sponte address [Renfroe’s] claims against them in

their official capacities” at the conclusion of their memorandum. Defs.’ Mem. [19] at 24. This

request drew a motion to strike from Renfroe, who correctly noted that, under the Federal Rules

of Civil Procedure and the Court’s Local Rules, all requests for relief must be made in the form

of a motion. See Fed. R. Civ. P. 7(b)(1); L.U. Civ. R. 7(b). In response, Defendants argued that

under Rule 56, the Court may grant summary judgment in the absence of a motion “so long as

proper notice is given to the adverse party.” Defs.’ Mem. [44] at 1; see Fed. R. Civ. P. 56(f)

(“Judgment Independent of the Motion. After giving notice and a reasonable time to respond,

the court may: (1) grant summary judgment for a nonmovant; [or] (2) grant the motion on

grounds not raised by a party.”).

Renfroe is correct that Defendants’ request for summary judgment on the official-

capacity claims in their memorandum failed to comply with the Court’s rules. So the request

will be stricken. But, the Court hereby gives Renfroe notice, under Federal Rule of Civil

Procedure 56(f), that it will consider Defendants’ summary-judgment arguments with respect to

the official-capacity claims, especially in light of the Court’s conclusion that no constitutional

violation occurred. See Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All of Whitley’s

inadequate supervision, failure to train, and policy, practice, or custom claims fail without an

underlying constitutional violation.”) (citing Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th

Cir. 2010)). Renfroe shall have fourteen days to show cause why the official-capacity claims

(under § 1983 and state law) should not be dismissed. Defendants may file a reply in support of

their argument as to the official-capacity claims within seven days of Renfroe’s response.

IV. Conclusion

The Court has considered all arguments. Those not addressed would not have changed

the outcome. For the foregoing reasons, Defendants’ Motion for Summary Judgment [17] is

granted, and the individual-capacity claims against Tucker and Parker are dismissed. Plaintiff’s

Motion to Strike [38] is granted, but Plaintiff will be given 14 days to show cause why

Defendants are not entitled to summary judgment on the official-capacity claims. Failure to file

a timely response will result in dismissal of those claims without further notice. Finally, insofar

as the Court did not consider the subject exhibit, Plaintiff’s Motion to Strike [32] is considered

moot.

SO ORDERED AND ADJUDGED this the 7th day of June, 2019.

s/ Daniel P. Jordan III

CHIEF UNITED STATES DISTRICT JUDGE