Parker v. Miss. Dep't of Wildlife

WILLIAM TIMOTHY PARKER PLAINTIFF v. MISSISSIPPI DEPARTMENT OF WILDLIFE,FISHERIES, AND PARKS, et al. DEFENDANTS

CIVIL ACTION NO. 2:19-CV-120-KS-MTP

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

April 9, 2021

MEMORANDUM OPINION AND ORDER

For the reasons provided below, the Court grants in part and denies in part Defendant Holifield's Motion to Strike [66], grants Defendant MDWFP's Motion to Dismiss [42], denies MDWFP's Motion for Summary Judgment [46], and grants in part and denies in part Defendant Holifield's Motion for Summary Judgment [50].

I. BACKGROUND

Defendant Richard Holifield is a Conservation Officer for the Defendant Mississippi Department of Wildlife, Fisheries, and Parks ("MDWFP"). On the morning of August 4, 2018, he learned of a house fire in progress and called an officer of the Jones County Sheriff's Department, who asked him to help direct traffic at the scene. Holifield complied, setting up a roadblock with a marked law enforcement vehicle while wearing a uniform and bright-colored traffic vest.

The volunteer fire department contacted Plaintiff and asked him to bring a track hoe to remove the house's metal roof. Plaintiff loaded up the equipment and proceeded to the scene. When he arrived, Holifield was directing traffic. From here, the parties' stories diverge, and most of the facts are in dispute.

In Defendants' version of the story, Plaintiff barreled through the roadblock in an unmarked vehicle, striking Holifield in the process. When Holifield tried to arrest Plaintiff for driving through the roadblock, Plaintiff refused to comply with directions, failed to identify himself, would not explain what he was doing, and did not communicate that the firefighters had asked him to bring the track hoe. Plaintiff then turned back toward the cab of his truck, and Holifield believed it was possible that Plaintiff was retrieving a weapon. Holifield gave Plaintiff a warning, and after Plaintiff still refused to comply, Holifield tased him and arrested him. When Holifield eventually learned who Plaintiff was and why he was there, he allowed Plaintiff to assist the firefighters before taking him back into custody.

Plaintiff's version of the story is quite different. Plaintiff claims that Holifield did not have his blue lights on. Therefore, Plaintiff did not see Holifield until he suddenly walked out into the road in front of Plaintiff's truck. Plaintiff claims that he was unable to suddenly brake because 1) his truck uses a "jake brake" system, and 2) he was pulling a load in tight quarters as he turned into the property. So, he waved at Holifield to move out of the way. Plaintiff contends that Holifield knew the firemen asked him to bring the track hoe, but Holifield pursued him on foot, greeted him with profanity, and accused him of trying to kill someone. Plaintiff never threatened Holifield, touched him, lunged at him, or made any physically threatening movement. Rather, Plaintiff walked away from Holifield and started to unbind the track hoe for offloading. Then Holifield tased Plaintiff without warning. When Plaintiff fell, he hitthe track hoe or low boy and broke two ribs. Nearby citizens intervened, and Holifield eventually agreed to allow Plaintiff to use the track hoe to remove the house's roof. After the job was completed, Holifield took Plaintiff back into custody.

Holifield arrested Plaintiff on charges of simple assault, disorderly conduct, and disobeying traffic control devices. A justice court judge eventually found Plaintiff not guilty on each count. Plaintiff filed this lawsuit against Holifield and MDWFP, asserting a wide variety of claims. Numerous motions are ripe for review.

II. MOTION TO STRIKE [66]

First, Defendant Holifield filed a Motion to Strike [66] an affidavit filed by Plaintiff in response to Holifield's Motion for Summary Judgment [50]. Plaintiff presented an affidavit [59-4] from former United States District Judge Charles Pickering. Defendant contends that the affidavit must be stricken because 1) Judge Pickering lacks personal knowledge of the relevant events, 2) the affidavit contains hearsay, 3) it contains undisclosed and improper expert testimony, and 4) its admission would be more prejudicial than probative. In response, Plaintiff argues that the affidavit is based on Judge Pickering's personal observations, that Holifield's own statements are admissible under Rule 801(d)(2), and that Judge Pickering's opinions are admissible under Rule 701.

The Court will address each paragraph of the affidavit in turn. Paragraph 1 provides:

I am an adult resident citizen of Jones County, Mississippi. I had the pleasure and honor of serving as the County Prosecuting Attorney forJones County, Mississippi. I did a limited amount of criminal defense work. I served as a United States District Judge for the Southern District of Mississippi and on the Fifth Circuit of Appeals.

Exhibit 4 to Response [59-4], at 1. The second, third, and fourth sentences of this paragraph are irrelevant to this case, in that Judge Pickering is a fact witness, not an expert witness. Moreover, they are unfairly prejudicial in that their only purpose is to bolster Judge Pickering's fact testimony. See FED. R. EVID. 403; see Asset Funding Group, LLC v. Adams & Reese, LLP, 2009 WL 10679972, at *1 (E.D. La. Nov. 4, 2009) (court ordered that no one shall refer to witness as "judge" to minimize undue influence on the jury); Georgou v. Fritzshall, 1995 WL 248002, at *5-*8 (N.D. Ill. Apr. 26, 1995) (court excluded testimony of former judge because of danger a jury would attach undue weight to it, citing Rule 403). Therefore, the Court grants Defendant's motion as to the second, third, and fourth sentences of paragraph 1, but denies it as to the first sentence. However, as with any eyewitness, Judge Pickering may state what he personally observed.

Paragraphs 2 and 3 contain undisputed background information regarding the events of the day in question, such as who owned the house, that it was on fire, that volunteer firemen responded to the fire, and that firemen requested that Plaintiff bring his track hoe to remove the house's metal roof. Based on Judge Pickering's testimony at Plaintiff's trial in Justice Court, see Exhibit B to Motion to Strike [66-2], the Court concludes that there is sufficient evidence in the record to demonstrate that Judge Pickering has personal knowledge of these undisputed background facts,by virtue of his relationship to the homeowners and involvement in this matter. See In re Green, 968 F.3d 516, 524 (5th Cir. 2020) ("[P]ersonal knowledge does not necessarily mean contemporaneous knowledge."). The Court denies Defendant's motion as to paragraphs 2 and 3.

Paragraph 4 provides, in part: "On August 4, 2018, the exact time unknown to me, Tim Parker was called and he agreed to provide assistance to the volunteer firemen and the Dunkerton family to remove the metal roof in an attempt to control the fire." Exhibit 4 to Response [59-4], at 2. This sentence, like paragraphs 2 and 3, contains undisputed background information, and there is sufficient information in the record to demonstrate that Judge Pickering has personal knowledge of these events. Therefore, the Court denies Defendant's motion as to the first sentence of paragraph 4.

The second sentence of paragraph 4 provides: "It was apparent to me that the fire would continue to rage out of control without Mr. Parker's assistance." Id. First, Judge Pickering is not an expert witness, and the Court questions whether this opinion is appropriate for a lay witness. In other words, the Court believes that it would require specialized knowledge, skill, experience, training, or education to predict the course of a house fire. See FED. R. EVID. 702.

Regardless, for the opinion to be admissible, it must come in as a lay opinion. "Under Rule 701, a lay opinion must be based on personal perception, must be one that a normal person would form from those perceptions, and must be helpful to thejury. In particular, the witness must have personalized knowledge of the facts underlying the opinion and the opinion must have a rational connection to those facts." Miss. Chem. Co. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th Cir. 2002); see also FED. R. EVID. 702. Plaintiff has not laid a foundation demonstrating the specific facts underlying the opinion, or that the opinion has a rational connection to those facts. The fact that Judge Pickering was there and saw the fire is not enough. Therefore, the Court grants Defendant's motion as to the second sentence of paragraph 4.

Paragraph 5 provides, in part:

Mr. Parker agreed to and responded with a track hoe on a lowboy. As Mr. Parker neared his destination, the Dunkerton residence, he encountered Richard Holifield, a MDWFP Conservation Officer. After Mr. Parker arrived at the Dunkerton residence Officer Holifield employed a taser while Mr. Parker was attempting to unload the track hoe, which resulted in Mr. Parker falling to the ground. After the volunteer firemen pleaded with Officer Holifield to let him help fight the fire Officer Holifield told the volunteer firemen he would tase them if they didn't back up.

Exhibit 4 to Response [59-4], at 2. Judge Pickering directly testified in Justice Court: "I did not see the stop, and I didn't see the tasing. I did ask them both about what had happened up at the stop." Exhibit B to Motion to Strike [66-2], at 10. Therefore, the Court concludes that Plaintiff has not demonstrated that Judge Pickering has personal knowledge of these events, and the Court grants Defendant's motion as to the first four sentences of paragraph 5.

Based on Judge Pickering's testimony before the Justice Court, id. at 3-9, theCourt concludes that the remainder of paragraph 5, Exhibit 4 to Response [59-4], at 2-3, describes events which occurred after he got involved, and, therefore, it is based on his personal knowledge. However, Defendant argues that the...