You are on page 1of 87

Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 1 of 6 PageID #: 548

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, ET AL. PLAINTIFFS

VS. CIVIL ACTION NO: 1:16CV120-SA-DAS

CITY OF TUPELO, MISSISSIPPI, ET AL. DEFENDANTS

ORDER

This matter is before the court on the plaintiffs motion [92] and seeks relief from a prior

[85] order sanctioning their attorney, Carlos Moore (Moore). The court ordered Moore to

reimburse the defendants for the reasonable expenses they incurred in filing two motions to

compel. The present motion seeks three forms of relief. First, Moore claims he is entitled to

relief under Federal Rule of Civil Procedure 60(b) on the grounds of excusable neglect. In the

alternative, Moore argues that the sanctions should be set aside pursuant to Federal Rule of Civil

Procedure 59(e) to prevent manifest injustice. Finally, if the sanctions are not set aside, Moore

contends the reasonable expenses should be apportioned pursuant to Federal Rule of Civil

Procedure 37(a)(5)(C).

A. Excusable Neglect

The first issue is whether Moore should be relieved from having to pay the defendants

reasonable expenses for filing two motions to compel. The conduct for which Moore was

sanctioned traces back to November 23rd, 2016. On that date, the defendants served their first set

of interrogatories, requests for production of documents, and requests for admissions on

plaintiffs Peggy Shumpert and Charles Foster. The plaintiffs timely served Shumpert and

Fosters responses to the requests for admission. However, they did not serve their responses for

1
Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 2 of 6 PageID #: 549

the interrogatories or requests for production at that time. On January 11th, 2017, well after the

plaintiffs responses were due, defense counsel sent a letter demanding that the plaintiffs serve

their responses to the delinquent interrogatories and requests for production within ten days of

the letters receipt. The letter went unanswered, as did the plaintiffs extended deadline for

serving their discovery responses.

The defendants filed their first motion to compel on January 25th, 2017. On the heels of

that motion, the plaintiffs served their responses to the outstanding interrogatories and requests

for production. Evidently, the plaintiffs responses were inadequate in many regards, and the

parties conferred in an attempt to resolve the discovery issues without court intervention. A

resolution proved impossible, and the defendants filed their second motion to compel on

February 21st, 2017. Subsequently, the court noticed a hearing on the two motions to compel,

which was held on March 21st, 2017.

After hearing oral argument, the court granted the defendants motions to compel in-part

and found the defendants were entitled to reimbursement for their reasonable expenses under

Federal Rule of Civil Procedure 37(a)(5)(A). Based on his representations at the hearing, the

court also found that Moores conduct, alone, necessitated the filing of the two motions to

compel. As such, he was held solely liable for reimbursing the defendants expenses.

Moore is now seeking to avoid these sanctions under Federal Rule of Civil Procedure

60(b)(1). Under this rule, the court may relieve a party or its legal representative from a final

judgment, order or proceeding forexcusable neglect. Fed. R. Civ. P. 60(b). Moore attributes

his failure to provide complete and timely discovery responses to two unforeseen circumstances.

He claims to have received several death threats during the pertinent time period, which stem

2
Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 3 of 6 PageID #: 550

from another case involving the state flag of Mississippi. Moore also explains that his wife

suffered from a severe and prolonged illness around the same time.

Although sympathetic of Moores plight, the court cannot classify his failure to timely

and adequately respond to the defendants written discovery requests as excusable neglect.

While Rule 60(b) allows relief for mistake, inadvertenceor excusable neglect, these terms

are not wholly open-ended. Gross carelessness is not enough. Pryor v. U.S. Postal Service,

769 F.3d 281, 287 (1985) (citing 11 Wright and Miller, Federal Practice and Procedure 2858

at 170). Even though he received a letter from defense counsel inquiring about the tardy

discovery responses, Moore never contacted them to explain his situation or to ask for an

extension of time. Based on defense counsels representations at the hearing, a simple phone call

would have sufficed. Therefore, the court finds that Moores failure to timely and adequately

respond to the defendants written discovery requests was the product of gross carelessness, not

excusable neglect.

B. Manifest Injustice

This issue is tangential to the plaintiffs excusable neglect argument. The defendants,

in their response, contend the plaintiffs are seeking relief under the wrong rule. Because the

plaintiffs motion was filed within twenty-eight (28) days of the order it challenges, the

defendants argue that Federal Rule of Civil Procedure 59(e) is applicable, not Federal Rule of

Civil Procedure 60(b).1 In addition to reasserting their claim for relief under Rule 60(b), the

plaintiffs reply argues that they are, likewise, entitled to relief under Rule 59(e).

1
The defendants cite Towns v. NE Miss. Elec. Power Assoc., which states that if the motion for reconsideration is
filed and served within twenty-eight days of the rendition of judgment, the motion falls under Rule 59(e), and if it is
filed and served after that time, it falls under the more stringent Rule 60(b). 2011 WL 3267887, at *1 (N.D. Miss.
July 29, 2011).

3
Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 4 of 6 PageID #: 551

There are only three grounds for which a court may grant a motion for reconsideration

under Federal Rule of Civil Procedure 59(e): (1) an intervening change in controlling law, (2)

the availability of new evidence not previously available, and (3) the need to correct a clear error

of law or prevent manifest injustice. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626

(S.D. Miss. 1990).2 A motion for reconsideration should not be used to give an unhappy litigant

one additional chance to sway the judge. Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D.

493, 494 (S.D. Miss. 2000). Rather, granting a motion for reconsideration is an extraordinary

measure and should be used sparingly. In re Pequeno, 240 Fed. Appx 634, 636 (5th Cir.

2007).3

For the same reasons they cited in support of their excusable neglect argument, the

plaintiffs argue that the sanctions imposed on their attorney should be set aside to prevent

manifest injustice. The court disagrees. As stated above, the court sympathizes with Moore.

Having to juggle the practice of law with death threats and an ailing family member is no small

feat. But this information was before the court when it ordered Moore to pay the defendants

reasonable expenses. The fact remains that Moore failed to communicate his circumstances to

opposing counsel, even after opposing counsel sent him a letter asking about the discovery

responses and extending his deadline to comply. The court reiterates what was stated above:

Moores failure to timely and adequately respond to the defendants written discovery requests

was the product of gross carelessness. Accordingly, the court finds that it is not manifestly

unjust for Moore to be liable for the defendants reasonable expenses.

2
Citing Natural Resources Defense Council v. United States Envtl. Protection Agency, 705 F. Supp. 698, 702
(D.D.C. 1989).
3
Quoting Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 2004).

4
Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 5 of 6 PageID #: 552

C. Apportionment

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C), courts have the discretion to

apportion the reasonable expenses of a motion to compel if the motion is granted-in part and

denied in-part. As Moore correctly points out, each of the defendants motions to compel was

denied in-part. Thus, the second issue is whether the court should have apportioned the expenses

when it sanctioned Moore.

The first motion was denied in-part on the grounds of mootness. That is, the plaintiffs

satisfied some of the defendants outstanding discovery requests after the first motion to compel

was filed. Notably, though, this is precisely the type of conduct Federal Rule of Civil Procedure

37 (a)(5)(A) is meant to combat, i.e., parties not complying with valid discovery requests until

the court is asked to intervene. Furthermore, it would be unconscionable to apportion expenses

under these circumstances. Allowing parties to evade sanctions by asserting the very conduct

that triggered them would wholly undermine Rule 37. Therefore, the court finds that there are no

apportionable expenses with respect to the first motion to compel.

The defendants second motion to compel sought more adequate responses to five of their

previously propounded interrogatories. It was denied insofar as it requested information

pertaining to certain wounds on the decedents body, which the plaintiffs attribute to Officer

Cooks K-9. Notably, the court only denied the defendants request because Moore represented

at the hearing that the information would be forthcoming in the plaintiffs expert reports.

However, Moore also informed the court that the allegations were partly based on the testimony

of a nurse who assisted in the decedents surgery. Because this witness was never disclosed to

the defendants, the plaintiffs were ordered to provide the defendants with all information

concerning the nurses description of the decedents injuries. Within this context, the court

5
Case: 1:16-cv-00120-SA-DAS Doc #: 118 Filed: 05/03/17 6 of 6 PageID #: 553

refuses to apportion the expenses incurred in filing the second motion to compel. Of the five

interrogatories placed in issue, the court denied only a fraction of one interrogatory, rendering

the apportionable expenses, if any, too trivial to quantify. Moreover, the hearing uncovered

highly relevant evidence, which fell squarely within the defendants written discovery requests,

that was never turned over to the defendants.

CONCLUSION

IT IS, THEREFORE, ORDERED THAT:

1. Carlos Moore is not entitled to relief from paying the defendants reasonable expenses for

filing their motions to compel, including attorneys fees, under Federal Rule of Civil

Procedure 60(b)(1).

2. Carlos Moore is not entitled to relief from paying the defendants reasonable expenses for

filing their motions to compel, including attorneys fees, under Federal Rule of Civil

Procedure 59(e).

3. Although the defendants motions were granted in-part and denied in-part, the reasonable

expenses stemming therefrom shall not be apportioned between Carlos Moore and the

defendants.

SO ORDERED this, the 3rd day of May, 2017.

/s/ David A. Sanders


UNITED STATES MAGISTRATE JUDGE

6
Case: 1:16-cv-00120-SA-DAS Doc #: 101 Filed: 04/12/17 1 of 5 PageID #: 473

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND AS


ADMINISTRATOR OF THE ESTATE OF ANTWUN
SHUMPERT, SR., AND ON BEHALF OF THE HEIRS AND
WRONGFUL DEATH BENEFICIARIES OF ANTWUN RONNIE
SHUMPERT, SR., DECEASED AND CHARLES FOSTER PLAINTIFFS

VS. CAUSE NO. 1:16cv120-SA-DAS

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, CHIEF BART
AGUIRRE, IN HIS OFFICIAL CAPACITY,
OFFICER TYLER COOK, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES AND JOHN
DOES 1-10, ALL IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES DEFENDANTS

RESPONSE TO MOTION FOR RELIEF FROM AN ORDER OR


IN THE ALTERNATIVE A MOTION FOR RECONSIDERATION

The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief

Bart Aguirre, in his official capacity (these defendants) respond to the plaintiffs Motion for

Relief from Order or in the Alternative a Motion for Reconsideration as follows:

1. The motion fails both from a legal perspective as well as in regard to the factual

basis for which relief is sought.

2. The plaintiffs cite no legal authority in support of this motion, likely because there

is no legal basis to provide the relief sought. While the plaintiffs seek to travel under Rule 60(b),

this Court has noted that, [I]f the motion for reconsideration is filed and served within twenty-

eight days of the rendition of judgment, the motion falls under Rule 59(e), and if it is filed and

2102877
Case: 1:16-cv-00120-SA-DAS Doc #: 101 Filed: 04/12/17 2 of 5 PageID #: 474

served after that time, it falls under the more stringent Rule 60(b). Towns v. NE Miss. Elec.

Power Assoc., 2011 U.S. Dist. LEXIS 84119 (N.D. Miss. 2011) citing Teal v. Eagle Fleet, Inc.,

933 F.2d 341, 347 (5th Cir. 1991). Whether considered under Rule 59(e) or Rule 60(b), plaintiffs

cite no basis for which the relief sought can be granted.

3. A Rule 59(e) motion calls into question the correctness of a judgment. Templet

v. Hydrochem, Inc. 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for altering or

amending a judgment under Rule 59(e): (1) an intervening change in controlling law, (2) the

availability of new evidence not previously available, or (3) the need to correct a clear error of

law or prevent manifest injustice. Williamson Pounders Architects, P.C. v. Tunica Co., 681

F.Supp. 2d 766, 767 (N.D. Miss. 2008). Rule 59(e) motions are not the proper vehicle for

rehashing evidence, legal theories, or arguments that could have been offered or raised before the

entry of judgment, Templet, 367 F.3d at 478, and they should not be used to . . . re-urge

matters that have already been advanced by a party. Nationalist Movement v. Town of Jena,

321 F.Appx. 359, 364 (5th Cir. 2009). The court noted in that same case that Rule 59(b) is an

extraordinary remedy that should be used sparingly. Id.

4. The plaintiffs cite no intervening change in controlling law and cite the

availability of no new evidence not previously available. They clearly are re-urging arguments

made at the hearing, and seem to travel under the manifest injustice theory, which as will be

pointed out below should not be available to them.

5. While the plaintiffs do not cite the basis on which they ask for relief under Rule

60(b), none of the five specific grounds noted in Rule 60(b) are applicable. They accordingly

must seek relief under Rule 60(b)(6).

2
2102877
Case: 1:16-cv-00120-SA-DAS Doc #: 101 Filed: 04/12/17 3 of 5 PageID #: 475

6. [T]he Fifth Circuit has narrowly circumscribed [Rule 60(b)(6)s] availability,

holding that such relief will be granted only if extraordinary circumstances are present. Estate

of Gray v. Dalton, 2015 U.S. Dist. LEXIS 77283 (N.D. Miss. 2015), quoting Batts v. Tow-Motor

Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995). The court in Estate of Gray went on to say that

Rule 60(b)(6) requires a showing of manifest injustice. Id.. This Court observed in Goudelock

v. McLemore, 985 F.Supp.2d 816 (N.D. Miss. 2013) that in describing the use of Rule 60(b)(6),

courts have narrowly circumscribed its availability, holding that Rule 60(b)(6) relief be granted

only if extraordinary circumstances are present. Id. at 818.

7. The extraordinary circumstances or manifest injustice theory that the

plaintiffs rely on are death threats alleged to have been received by plaintiffs counsel and his

wifes health. And while these defendants do not make light of anyones illness, plaintiffs

counsel has raised this issue time and time again, generally while pursuing other matters

vigorously. The following are illustrative, but certainly not exhaustive:

(a) On November 15, 2016, plaintiffs counsel filed a motion for continuance in a
case pending before the Leflore County Circuit Court, making the exact
arguments made here. Attached as Exhibit 1 is a copy of the referenced motion.

(b) In another case pending in the Leflore County Circuit Court, plaintiffs counsel
moved for a modified scheduling order stating that since February of 2016 he had
received five death threats. That motion is dated October 17, 2016, and must
refer to the same five death threats referenced in the motion pending before this
Court. Attached as Exhibit 2 is a copy of the referenced motion for modified
scheduling order.

(c) During the same time the plaintiffs counsel was arguing to the Leflore County
Circuit Court that he needed relief because of the, . . . duress, anxiety, insomnia,
increased hypertension . . . (see paragraph four of Exhibit 2), he found time to
continue to hold press conferences regarding claims made in this matter.
Attached as Exhibit 3 is a media report on an October 27, 2016, press
conference held by plaintiffs counsel.

(d) Shortly prior to making representations to the Leflore County Circuit Court of his
need for relief for the same reasons set out in the pending motion, plaintiffs

3
2102877
Case: 1:16-cv-00120-SA-DAS Doc #: 101 Filed: 04/12/17 4 of 5 PageID #: 476

counsel argued to this Court that this action should not be stayed as had been
requested by Tyler Cook, but should instead proceed expeditiously. See,
Memorandum in Opposition to Defendants Motion to Stay Proceedings [Doc #:
17].

Finally in this respect, a review of this Courts docket will show substantial activity

undertaken by plaintiffs counsel at a time when he was representing to other courts that the

death threats and family illness for which he seeks relief herein prevented him from participating

actively in other matters.

8. These defendants submit to the Court that plaintiffs counsel is remarkably

selective in when and under what circumstances these alleged outside events affect his ability to

handle his affairs. His claims in that respect should be wholly discounted.

For the reasons set out herein, these defendants object to the plaintiffs Motion for Relief

from an Order or in the Alternative a Motion for Reconsideration.

DATED: April 12, 2017.

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, AND CHIEF
BART AGUIRRE, IN HIS OFFICIAL
CAPACITY, DEFENDANTS

BY:_/s/ John S. Hill___________________


JOHN S. HILL, MB# 2451
BERKLEY N. HUSKISON, MB# 9582

OF COUNSEL

MITCHELL, McNUTT & SAMS, P.A.


POST OFFICE BOX 7120
105 SOUTH FRONT STREET
TUPELO, MS 38802-7120
TELEPHONE: (662) 842-3871
FAX: (662) 842-8450
jhill@mitchellmcnutt.com

4
2102877
Case: 1:16-cv-00120-SA-DAS Doc #: 101 Filed: 04/12/17 5 of 5 PageID #: 477

POST OFFICE BOX 1366


215 FIFTH STREET NORTH
COLUMBUS, MS 39701
TELEPHONE: (662) 328-2315
FAX: (662) 328-8035
bhuskison@mitchellmcnutt.com

CERTIFICATE OF SERVICE

I, John S. Hill, certify that on this date I electronically filed the foregoing Response to

Motion for Relief from an Order or in the Alternative a Motion for Reconsideration with the

Clerk of the Court using the ECF system which sent notification of such filing to Carlos E.

Moore, Esq., at his electronic address of carlos@carlosmoorelaw.com, Jason D. Herring, Esq. at

his electronic address of jason@jherringlaw.com, Charles T. Tucker, Esq. at his electronic

address of charles@tuckerlawgroupllp.com, Michael S. Carr, Esq. at his electronic address of

mcarr@carrcalderon.com and Michael S. Chapman at his electronic address of

michael@herringchapmanlaw.com.

DATED: April 12, 2017.

_/s/ John S. Hill_______________________


JOHN S. HILL

5
2102877
Case: 1:16-cv-00120-SA-DAS Doc #: 101-1 Filed: 04/12/17 1 of 4 PageID #: 478
Case: 1:16-cv-00120-SA-DAS Doc #: 101-1 Filed: 04/12/17 2 of 4 PageID #: 479
Case: 1:16-cv-00120-SA-DAS Doc #: 101-1 Filed: 04/12/17 3 of 4 PageID #: 480
Case: 1:16-cv-00120-SA-DAS Doc #: 101-1 Filed: 04/12/17 4 of 4 PageID #: 481
Case: 1:16-cv-00120-SA-DAS Doc #: 101-2 Filed: 04/12/17 1 of 3 PageID #: 482
Case: 1:16-cv-00120-SA-DAS Doc #: 101-2 Filed: 04/12/17 2 of 3 PageID #: 483
Case: 1:16-cv-00120-SA-DAS Doc #: 101-2 Filed: 04/12/17 3 of 3 PageID #: 484
Case: 1:16-cv-00120-SA-DAS Doc #: 101-3 Filed: 04/12/17 1 of 1 PageID #: 485
Case: 1:16-cv-00120-SA-DAS Doc #: 92 Filed: 03/29/17 1 of 4 PageID #: 428

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND ON


BEHALF OF THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF ANTWUN RONNIE SHUMPERT, SR.,
DECEASED AND CHARLES FOSTER PLAINTIFFS

VS. CAUSE NO. 1:16cv120-SA-DAS

CITY OF TUPLEO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, CHIEF BART
AGUIRRE, IN HIS OFFICIAL CAPACITY,
OFFICER TYLER COOK, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES AND JOHN
DOES 1-10, ALL IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES DEFENDANTS

MOTION FOR RELIEF FROM AN ORDER OR IN THE ALTERNATIVE A MOTION


FOR RECONSIDERATION
______________________________________________________________________

COME NOW, Plaintiffs Peggy Shumpert, et al. (hereinafter Plaintiffs), by and

through their counsel of record, pursuant to Fed. R. Civ, P. 60(b), and file this their

MOTION FOR RELIEF FROM AN ORDER OR IN THE ALTERNATIVE MOTION FOR

RECONSIDERATION and in support thereof would show unto the Court the following:

1) The Courts Order [85] entered on March 22, 2017 relied on Fed. R. Civ. P

37(a)(5)(A) and Fed. R. Civ. P 37(a)(5)(C) should have been controlling because

the Court granted in part and denied in part both of the Motions to Compel [49 &

64]. Using Fed. R. Civ. P 37(a)(5)(C) as guidance, the Court has more discretion

in deciding whether to impose sanctions and if imposed, the rule allows the

expenses to be apportioned between the movant and respondent or counsel for

respondent.
Case: 1:16-cv-00120-SA-DAS Doc #: 92 Filed: 03/29/17 2 of 4 PageID #: 429

2) Also, Plaintiffs through counsel, ask the Court to take judicial notice that no other

lawyer in Mississippi likely endured five death threats from various sources as well

as had a spouse with a prolonged un-expected illness requiring said spouse to be

out of work for a month in the last quarter of 2016. The Court is asked to find

excusable neglect and no malice under the circumstances. Counsel for the

Plaintiffs simply filed a lawsuit and appeal challenging the state flag which has the

Confederate emblem, a symbol of white supremacy, embedded, and received un-

warranted death threats which had an adverse effect on counsels job

performance. The unexpected illness of counsels wife in late 2016 also put said

counsel behind in his work on behalf of several clients and has necessitated said

counsel bringing in co-counsel in this case and others. Even Rule 37 (a)(5)(A)(iii)

allows the Court to not sanction a party or counsel if other circumstances make

an award of expenses unjust. Five death threats and an unexpected illness of the

undersigned counsels wife are the other circumstances particular to the

undersigned that make the award of expenses unjust in this instance. Rule 60(b)

of the Federal Rules of Civil Procedure also allows for relief from an Order because

of excusable neglect. Counsel should not be penalized for focusing on staying

alive and caring for a sick spouse. That would be against public policy. Neither the

Plaintiffs nor the Defendants suffered irreparable harm or undue prejudice because

of the short delay in answering discovery. The discovery deadline is currently

August 4, 2017.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request

that this Honorable Court grant counsel for Plaintiffs relief from the Order [85] of
Case: 1:16-cv-00120-SA-DAS Doc #: 92 Filed: 03/29/17 3 of 4 PageID #: 430

the Court requiring Carlos Moore to pay sanctions or expenses of the Defendants

related to filing two Motions to Compel or alternatively reconsider its Order and

decide Motions [49 & 64] based on Fed. R. Civ. P 37(a)(5)(C) . Additionally, given

the simplicity of this motion, Plaintiffs respectfully request to be excused from filing

a separate memorandum of laws. Finally, Plaintiffs pray for all general relief this

Honorable Court deems to be fair and just.

RESPECTFULLY SUBMITTED, this the 29th day of March, 2017.

PEGGY SHUMPERT, ET AL., PLAINTIFFS

By: s/ Carlos E. Moore_______________________


Carlos E. Moore, MSB# 100685
OF COUNSEL:

TUCKER|MOORE GROUP, LLP


306 Branscome Drive
P. O. Box 1487
Grenada, MS 38902-1487
662-227-9940 phone
662-227-9941 fax
Email: carlos@tuckermoorelaw.com

Michael Carr, Esq.


CARR & CALDERN, PLLC
303 Cotton Row
P.O. Box 1818
Cleveland, MS, 38732
Phone: (662) 545-4445
Fax: 1 (662) 796-3689
Email:mcarr@carrcalderon.com
Case: 1:16-cv-00120-SA-DAS Doc #: 92 Filed: 03/29/17 4 of 4 PageID #: 431

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that I have this date served via the electronic
filing system and/or mailed via U. S. Mail, postage pre-paid, a true and correct copy of
the above and foregoing to the following and all counsel of record:

John S. Hill, Esq.


jhill@mitchellmcnutt.com
MITCHELL, McNUTT & SAMS, P.A.
P. O. Box 7120
105 South Front Street
Tupelo, MS 38802-7120

Berkley N. Huskison, Esq.


bhuskison@mitchellmcnutt.com
MITCHELL, McNUTT & SAMS, P.A.
P. O. Box 1366
215 Fifth Street North
Columbus, MS 39701

Jason D. Herring, Esq.


jason@herringchapmanlaw.com
HERRING CHAPMAN, P.A.
342 North Broadway Street
Tupelo, MS 38804

Brad K. Morris, Esq.


brad@bradmorrislawfirm.com
BRAD MORRIS LAW FIRM, PLLC
P. O. Box 2136
Oxford, MS 38665

THIS, the 29th day of March, 2017.

s/ Carlos E. Moore______________
CARLOS E. MOORE, ESQ.
Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 1 of 6 PageID #: 396

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, ET AL. PLAINTIFFS

VS. CIVIL ACTION NO: 1:16CV120-SA-DAS

CITY OF TUPELO, MISSISSIPPI,


ET AL. DEFENDANTS

ORDER

This matter is before the court on the defendants motions [49 & 64] to compel. The first

motion was filed on January 25th, 2017 and sought an order (1) compelling the plaintiffs to fully

answer the interrogatories and requests for production served on Peggy Shumpert and Charles

Foster, (2) deeming the plaintiffs objections thereto, if any, as waived, and (3) sanctioning the

plaintiffs for the reasonable costs incurred in filing the compliance motion, including attorneys

fees. Shortly after the motion was filed, however, the plaintiffs served their unverified

responses. Having received the responses that were still later verified -- the defendants

conceded that the first two requests enumerated above were rendered moot, but they reurged

their request for sanctions and noted that the responses were inadequate because they were not

verified.

Approximately one month later, after conferring with plaintiffs counsel about what the

defendants saw as deficiencies with Peggy Shumperts responses to the interrogatories and

requests for production, the defendants filed their second motion to compel. According to their

second motion, several of Peggy Shumperts responses are unresponsive and defer to a forensic

expert analysis that has yet to be completed. Moreover, in light of several highly charged and

well-publicized statements made to the press, the defendants argue they are entitled to the
Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 2 of 6 PageID #: 397

evidence upon which these public statements are founded. The defendants are also seeking the

reasonable costs associated with filing their second motion to compel.

For the reasons announced on the record by the court during the March 21st, 2017

hearing, the court finds as follows:

1. The defendants motion [49] to compel is granted in part. Because the plaintiffs served

their responses to the defendants discovery requests after the motion to compel was

filed, the court is bound by the Federal Rules of Civil Procedure to impose sanctions on

the plaintiffs and/or their attorney.1 Based on the testimony presented by Carlos Moore

at the hearing, it appears that his own conduct, and not that of the plaintiffs he represents,

necessitated the filing of the defendants first compliance motion. Accordingly, Carlos

Moore shall be solely liable for the sanctions imposed herein. The defendants are

instructed to submit to the court a detailed list of the expenses, including attorneys fees,

they incurred in filing their first motion to compel.

2. The defendants motion [64] to compel responses to interrogatories is, likewise, granted

in part. Unless stated otherwise, the plaintiffs shall provide the defendants with their

responses no later than March 24th, 2017.

a. Interrogatory No. 7: The plaintiffs are instructed to respond to this interrogatory

consistent with the testimony provided by Carlos Moore at the hearing, which

includes any evidence the plaintiffs relied upon in alleging that the decedent tried

to voluntarily surrender when he heard Officer Cook and his K-9 approach, as

well as any documents or evidence that have been submitted to the plaintiffs

1
[I]f therequested discovery is provided after the motion [to compel] was filedthe court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movants reasonable expenses in making the motion, including attorneys
fees. Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 3 of 6 PageID #: 398

expert for review. Furthermore, Carlos Moores testimony indicated most, if not

all, of the evidence buttressing this allegation stems from an anonymous phone

call made to the decedents brother-in-law. The plaintiffs are instructed to

provide a detailed description of this phone call in their response, including: (1)

the date and time of the call, (2), the phone number of the anonymous caller, (3)

an affidavit from the brother-in-law specifying what exactly was said during the

call, and (4) a statement as to what attempts were made to identify and follow-up

with the anonymous caller.

b. Interrogatory No. 8: The defendants motion to compel is denied on this issue.

According to Carlos Moores testimony at the hearing, this information will be in

the expert report. Nevertheless, Carlos Moore indicated that a nurse assisting

with the decedents surgery contacted the plaintiffs and described the nature of his

injuries, including a gaping wound to the decedents groin. The plaintiffs are

instructed to turn over any information concerning the nurses description of the

injuries to the defendants.

c. Interrogatory No. 9: The plaintiffs are instructed to respond to this interrogatory

consistent with the testimony provided by Carlos Moore at the hearing, which

includes any evidence the plaintiffs relied upon in alleging that while the decedent

was trying to defend against total annihilation by the K-9, Officer Cook shot the

decedent four times, punched him in the face, and kicked or stomped him in the

mouth, as well as any documents or evidence that have been submitted to the

plaintiffs expert for review. During the hearing, Carlos Moore stated that the

evidence the plaintiffs had to support this claim was a phone call from an
Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 4 of 6 PageID #: 399

anonymous caller made to the decedents brother-in-law. The plaintiffs shall

provide to the defendants the information related to this call described under

Interrogatory seven supra and any additional evidence they may have.

d. Interrogatory No. 11: This interrogatory pertains to the plaintiffs allegation that

the defendants violated the decedents constitutional rights via official policies

and customs and that said policies, customs, patterns and/or practice were the

moving force of constitutional violations perpetrated against the decedent. On a

related note, Carlos Moore was quoted in an article as stating the following:

Black lives do not matter in TupeloWhen you are black or brown, (the police)

are trigger happy. They sent out a memo to certain parts of the white community

that it was open season on blacks. During Carlos Moores testimony at the

hearing, he explained that he is not aware of the existence of such a memo.

Rather, Carlos Moore described the statement as a rhetorical device. The

plaintiffs are instructed to respond to this interrogatory consistent with the

testimony provided by Carlos Moore at the hearing. In addition, the response

shall state that Moore knew of no such memo when his statements were

published.

e. Interrogatory No. 12: The plaintiffs are instructed to respond to this interrogatory

consistent with the testimony provided by Carlos Moore at the hearing, which

includes any evidence the plaintiffs relied upon in alleging that the decedents

right to due process was violated as a result of being denied prompt medical care.

During the hearing, Carlos Moore stated that the plaintiffs were relying on a

residents surveillance video that showed an ambulance passing by more than


Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 5 of 6 PageID #: 400

fifty (50) minutes after the decedent was shot. This evidence shall be included in

the plaintiffs response if it has not already been turned over.

f. Interrogatory No. 14: The plaintiffs are instructed to provide the decedents work

history for the ten (10) years preceding the decedents death. Their response shall

include the following details: (1) the name of each business with whom he was

employed, (2) the capacity for each job he held, (3) the name, number and address

for each of his immediate supervisors, and (4) the reasons why he left each job.

The plaintiffs shall also provide the defendants with the decedents tax returns for

the past five (5) years. If the plaintiffs cannot secure the decedents tax returns by

March 31st, 2017, they are instructed to provide the court with a copy of a

subpoena served on the Internal Revenue Service for the decedents tax returns no

later than March 31st, 2017.

g. Sanctions: Because the defendants motion to compel responses to interrogatories

has been granted, the court is bound by the Federal Rules of Civil Procedure to

impose sanctions on the plaintiffs and/or their attorney. Fed. R. Civ. P.

37(a)(5)(A). Based on the testimony presented by Carlos Moore at the hearing, it

appears that his own conduct, and not that of any of the plaintiffs he represents,

necessitated the filing of the defendants compliance motion. Accordingly, Carlos

Moore shall be solely liable for the sanctions imposed herein. The defendants are

instructed to submit to the court a detailed list of the expenses, including

attorneys fees, they incurred in filing their second motion to compel.

3. During the hearing, the defendants made an ore tenus motion to be released from a

previous order requiring them to maintain the K-9s remains in a refrigerated facility at
Case: 1:16-cv-00120-SA-DAS Doc #: 85 Filed: 03/22/17 6 of 6 PageID #: 401

Mississippi State University. Consistent with the courts ruling at the hearing, the

defendants request is hereby denied, and they remain responsible for preserving the K-

9s remains until this action has been resolved.

SO ORDERED this, the 22nd day of March, 2017.

/s/ David A. Sanders


UNITED STATES MAGISTRATE JUDGE
Case: 1:16-cv-00120-SA-DAS Doc #: 70 Filed: 03/07/17 1 of 4 PageID #: 344

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND ON


BEHALF OF THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF ANTWUN RONNIE SHUMPERT, SR.,
DECEASED AND CHARLES FOSTER PLAINTIFFS

V. CAUSE NO.:1:16cv120-SA-DAS

CITY OF TUPELO, MISSISSIPPI, MAYOR


JASON SHELTON, IN HIS OFFICIAL CAPACITY,
CHIEF BART AGUIRRE, IN HIS OFFICIAL
CAPACITY, OFFICER TYLER COOK, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITIES,
AND JOHN DOES 1-10, ALL IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITIES DEFENDANTS

PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION OF CITY OF TUPELO,


MISSISSIPPI, MAYOR JASON SHELTON, IN HIS OFFICIAL CAPACITY, AND
CHIEF BART AGUIRRE, IN HIS OFFICIAL CAPACITY, TO COMPEL PLAINTIFF
PEGGY SHUMPERT TO PROVIDE SUBSTANTIVE RESPONSES TO
INTERROGATORIES

COMES NOW Plaintiffs, Peggy Shumpert, individually, and on behalf of the heirs and

wrongful death beneficiaries of Antwun Ronnie Shumpert, Sr., deceased, and Charles Foster,

by and through their counsel of record, and files this, Plaintiffs Response in Opposition to

Motion of City of Tupelo, Mississippi, Mayor Jason Shelton, in his Official Capacity, and Chief

Bart Aguirre, in his Official Capacity, to Compel Plaintiff Peggy Shumpert to Provide

Substantive Responses to Interrogatories. Plaintiffs move this Honorable Court to deny

Defendants Motion and request a hearing on said Motion, as grounds therefore, would state as

follows:

1. This matter arises out of an incident that occurred on June 18, 2016, in which Antwun

Shumpert suffered fatal injuries from a brutal attack by two law enforcement officers

1
Case: 1:16-cv-00120-SA-DAS Doc #: 70 Filed: 03/07/17 2 of 4 PageID #: 345

(one male and one K-9) employed with the Tupelo Police Department in Tupelo,

Mississippi. Additionally, Charles Foster suffered psychological and emotional injuries in

conjunction with the same.

2. On June 30, 2016, Plaintiffs, including Peggy Shumpert (Plaintiff Shumpert), widow of

Antwun Shumpert, filed their Complaint against Defendants in this matter.

3. On or about November 23, 2016, Defendants, The City of Tupelo, Mississippi, Mayor

Jason Shelton, in his official capacity, and Chief Bart Aguirre, in his official capacity,

served their First Set of Interrogatories, Request for Production of Documents and

Requests for Admission Propounded to Peggy Shumpert, Individually and on Behalf of

the Heirs and Wrongful Death Beneficiaries of Antwun Ronnie Shumpert, Sr.,

Deceased and First Set of Interrogatories, Request for Production of Documents and

Requests for Admission Propounded to Charles Foster.

4. On December 12, 2016, Plaintiffs served their Responses to Requests for Admission.

5. On January 25, 2017, Plaintiffs filed their Responses to First Set of Interrogatories,

Request for Production of Documents.

6. Federal Rule of Civil Procedure 33(b)(3) states, [e]ach interrogatory must, to the extent

it is not objected to, be answered separately and fully in writing under oath. Further,

Federal Rule of Civil Procedure 26(e) allows supplementation when the information

requested in interrogatories is unknown at the time of the partys initial response to

discovery.

7. Defendants Motion should be denied as Plaintiff Shumpert sought to provide Defendants

with sufficient responses and any information not provided will be timely supplemented.

Plaintiff Shumperts discovery responses were not submitted in bad faith or a tool to

2
Case: 1:16-cv-00120-SA-DAS Doc #: 70 Filed: 03/07/17 3 of 4 PageID #: 346

thwart the discovery process. Further, support of Plaintiff Shumperts contentions will be

provided through expert designation.

8. Plaintiffs rely on their Memorandum in Support of Plaintiffs Response in Opposition to

Motion of City of Tupelo, Mississippi, Mayor Jason Shelton, in his Official Capacity, and

Chief Bart Aguirre, in his Official Capacity, to Compel Plaintiff Peggy Shumpert to

Provide Substantive Responses to Interrogatories

WHEREFORE, PREMISES CONSIDERED Plaintiffs pray that this Honorable Court

will deny Defendants Motion. Plaintiffs also pray for all other general relief this Court deems to

be fair and just.

Respectfully submitted, this the 7th day of March 2017.

PEGGY SHUMPERT, INDIVIDUALLY, AND ON


BEHALF OF THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF ANTWUN RONNIE SHUMPERT,
SR., DECEASED AND CHARLES FOSTER

s/ Carlos E. Moore
__________________________________
CARLOS MOORE, MSB #100685

OF COUNSEL:
TUCKER MOORE LAW GROUP
306 Branscome Drive
Grenada, Mississippi 38901
Telephone: 662-227-9940
Facsimile: 662-227-9941
Carlos@TuckerMooreLaw.com

3
Case: 1:16-cv-00120-SA-DAS Doc #: 70 Filed: 03/07/17 4 of 4 PageID #: 347

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing pleading was transmitted

via EFC, to all counsel of record.

This the 7th day of March 2017.

s/ Carlos E. Moore

______________________________
Carlos Moore, MSB #100685

4
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 1 of 8 PageID #: 299

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND AS


ADMINISTRATOR OF THE ESTATE OF ANTWUN
SHUMPERT, SR., AND ON BEHALF OF THE HEIRS AND
WRONGFUL DEATH BENEFICIARIES OF ANTWUN RONNIE
SHUMPERT, SR., DECEASED AND CHARLES FOSTER PLAINTIFFS

VS. CAUSE NO. 1:16cv120-SA-DAS

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, CHIEF BART
AGUIRRE, IN HIS OFFICIAL CAPACITY,
OFFICER TYLER COOK, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES AND JOHN
DOES 1-10, ALL IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES DEFENDANTS

MOTION OF THE CITY OF TUPELO, MISSISSIPPI, MAYOR JASON


SHELTON, IN HIS OFFICIAL CAPACITY, AND CHIEF BART AGUIRRE,
IN HIS OFFICIAL CAPACITY TO COMPEL PLAINTIFF PEGGY SHUMPERT
TO PROVIDE SUBSTANTIVE RESPONSES TO INTERROGATORIES

The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief

Bart Aguirre, in his official capacity (these defendants) move the Court to compel Peggy

Shumpert to provide substantive responses to interrogatories propounded to her. In support of

this motion these defendants say as follows:

1. These defendants propounded and served their First Set of Interrogatories,

Requests for Production of Documents and Requests for Admission on November 23, 2016.

2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 2 of 8 PageID #: 300

2. Following these defendants Motion to Compel (Doc #: 49) Peggy Shumpert

served her untimely and unverified responses to these defendants interrogatories and document

requests on January 25, 2017.

3. Counsel for these defendants has written and conferred with counsel for the

plaintiffs regarding the alleged inadequacies of the plaintiffs response to these defendants

written discovery as set out hereinbelow without a resolution of the dispute. Attached hereto as

Exhibit 1 is a copy of counsels Good Faith Certificate submitted pursuant to L.U.Civ.R. 37(a).

4. As a predicate to these defendants motion to compel, it should be noted that the

underlying event giving rise to this action was well publicized, and counsel for the plaintiffs

made repeated claims that he alleged were factually based and that were published in the local

media and other media, including The New York Times, regarding the basis of claims made by

the Shumpert family. Included in statements made by plaintiffs counsel to the media for public

consumption are the following:

a. He [Shumpert] ran from the police, but he did not attack the officer or the
K-9. said Moore during the press conference at Tupelo City Hall. Was
the K-9 not well-enough trained to handle an unarmed 37 year-old man? . .
. .

b. Black lives do not matter in Tupelo, Moore said. When you are black
or brown (the police) are trigger happy. They sent out a memo to certain
parts of the white community that it was open season on blacks.

c. Moore said during a June 21 press conference the surveillance video


showed the initial stop and an hour gap before the ambulance arrived.

d. The police shot Ronnie four or five times, or said. It was a modern day
lynching. It was simply an execution.

e. Moore has released photos of Shumperts body. He says these photos


show mutilation of the body by the K-9 unit, including scratch marks on
his back and wounds to the groin area.

2
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 3 of 8 PageID #: 301

f. Moore also said he has consulted his own forensic pathologist who
believes that the wounds on Shumperts body, including his back, are
consistent with a dog attack.

g. Witnesses also exist that can corroborate the version of events as told by
Moore, the attorney claims.

h. Finally, he (District Attorney John Weddle) refuted Moores claims that


he had found an eyewitness who had recorded video, . . . .

i. This from The New York Times: They have declared open season on us,
and they are killing with impunity, said Mr. Moore, who is black.

Attached hereto as cumulative Exhibit 2 are copies of the media reports on the referenced

comments made by plaintiffs counsel.

5. These defendants Interrogatory No. 7 to Peggy Shumpert reads as follows:

You allege in the complaint that Shumpert tried to surrender voluntarily


and came from his hiding place as he heard Officer Tyler Cook and his
City assigned K-9 approach. State the factual basis of your claim in that
regard, identify all persons on whom you rely to support that claim and
identify all documents on which you rely to support that claim.

The following is Peggy Shumperts response:

Plaintiffs will rely on forensics expert testimony to establish this fact.


Experts will be designated by Plaintiffs Expert Designation deadline.

Basis for motion to compel: Plaintiffs counsel has stated publicly and repeatedly that Shumpert

tried to surrender voluntarily and came from his hiding place as he heard Officer Cook approach,

and has said that he has eyewitnesses who support that claim. Either Peggy Shumpert should be

required to provide the information sought by this interrogatory or state plainly that she has no

factual basis to support that claim, can identify no one on whom she relies to support that claim

and can identify no documents on which she relies to support that claim.

6. Interrogatory No. 8 to Peggy Shumpert reads as follows:

You allege in the complaint that as Shumpert attempted to voluntarily


surrender, the K-9 viciously attacked him, biting him in the groin, ripping

3
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 4 of 8 PageID #: 302

his flesh leaving a gaping hole at least six inches deep in his groin and
nearly mutilating his testicles after shredding his scrotum. You allege
further that the K-9 also severely clawed Shumpert on his back and
inflicted other injuries and bruises to the person of Antwun Shumpert.
State the factual basis of your claim in that regard, identify all persons on
whom you rely to support that claim and identify all documents on which
you rely to support that claim.

Peggy Shumpert responded as follows:

Please refer to Interrogatory No. 7.

Basis of motion to compel: Plaintiffs counsel has alleged publicly and repeatedly that Shumpert

attempted to voluntarily surrender, and that the K-9 viciously attacked him, biting him in the

groin and severely clawed Shumpert on his back. Peggy Shumpert should be required to either

provide the information sought by this interrogatory or admit that she has no factual basis for

these claims, can identify no person on whom she relies to support these claims and can identify

no documents on which she relies to support these claims.

7. These defendants Interrogatory No. 9 to Peggy Shumpert reads as follows:

You allege in the complaint that while Shumpert was trying to defend
himself against total annihilation by the K-9, Officer Tyler Cook
approached Shumpert and shot him four times, punched Shumpert in the
face and kicked or stomped Shumpert in the mouth knocking four of his
bottom teeth backwards toward his throat. State the factual basis of your
claim in that regard, identify all persons on whom you rely to support that
claim and identify all documents on which you rely to support that claim.

Peggy Shumperts response was as follows:

Please refer to Interrogatory No. 7.

Basis of motion to compel: Similar to Interrogatories 7 and 8, after all this time and much self-

generated publicity, Peggy Shumpert should be compelled to either answer this interrogatory or

admit that she has no factual basis to support these claims, can identify no persons on whom she

4
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 5 of 8 PageID #: 303

relies to support these claims and can identify no documents on which she relies to support these

claims.

8. These defendants Interrogatory No. 11 to Peggy Shumpert reads as follows:

You allege in your complaint that these defendants violated Shumperts


constitutional rights via official policies and customs and that said
policies, customs, patterns and/or practices were the moving forces of
alleged constitutional violations perpetrated against Shumpert. State the
factual basis of your claim in that regard, identify all persons on whom
you rely to support that claim and identify all documents on which you
rely to support that claim.

Peggy Shumperts response was as follows:

Discovery is still ongoing. Plaintiffs reserve the right to supplement this


response.

Basis of motion to compel: Plaintiffs counsel has stated repeatedly and publicly that the Tupelo

Police Department had declared open season on African-Americans and violated Shumperts

constitutional rights. Peggy Shumpert should now be required to either answer this interrogatory

or admit that she has no factual basis for these claims, can identify no persons on whom she

relies to support these claims and can identify no documents on which she relies to support these

claims.

9. These defendants Interrogatory No. 12 to Peggy Shumpert reads as follows:

You allege in the complaint that Shumperts right to due process was
denied as a result of being denied prompt medical care. State the factual
basis of your claim in that regard, identify all persons on whom you rely to
support that claim and identify all documents on which you rely to support
that claim.

Peggy Shumperts response was as follows:

Discovery is still ongoing. Plaintiffs reserve the right to supplement this


response.

5
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 6 of 8 PageID #: 304

Basis of motion to compel: Plaintiffs attorney stated repeatedly and publicly that Shumpert

was not given prompt medical care following the shooting. Peggy Shumpert should be required

to either answer this interrogatory or admit that there is no factual basis to this claim, that she can

identify no persons on whom they rely to support this claim and can identify no documents on

which they rely to support this claim.

10. These defendants Interrogatory No. 14 to Peggy Shumpert reads as follows:

Identify each of the employers of Antwun Ronnie Shumpert, Sr., for the
ten years immediately preceding his death, state in what capacity
Shumpert was employed at each such place of employment, identify
Shumperts immediate supervisor at each such place of employment and
state the reasons why Shumpert left the employ of each such employer.

Peggy Shumperts response is as follows:

Plaintiffs name: Uncle Lil Joe Construction; Plaintiffs reserve the right to
supplement this response.

Basis of Motion to Compel: The plaintiffs seek lost income as an element of damage. Their

response is non-responsive to these defendants interrogatory.

11. The event giving rise to this legal action occurred on June 18, 2016. Following a

series of repeated inflammatory claims and allegations by plaintiffs counsel, which continued

after this action was filed, the complaint in this action was filed on June 30, 2016. These

defendants seek through discovery the factual basis of the plaintiffs claims made repeatedly and

publicly against them and the identity of all persons and documents on which the plaintiffs rely

to support those claims. Either Peggy Shumpert has a factual basis for these claims and can

identify persons and documents on which she relies to support these claims or she cant. If she

can, she should be required to do so. If she cant, she should be required to say that she cant.

12. While in some cases substantive reliance on an expert witness might be

appropriate, here the plaintiffs attorney has repeatedly and publicly made allegations based on

6
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 7 of 8 PageID #: 305

self-proclaimed factual rhetoric. The plaintiffs should not be allowed to dodge basic discovery

responses under these circumstances.

13. In addition to all of the foregoing, Peggy Shumperts responses were more than a

month delinquent and remain unverified. The responses accordingly should be stricken.

DATED: February 21, 2017.

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, AND CHIEF
BART AGUIRRE, IN HIS OFFICIAL
CAPACITY, DEFENDANTS

BY:_/s/ John S. Hill___________________


JOHN S. HILL, MB# 2451
BERKLEY N. HUSKISON, MB# 9582

OF COUNSEL

MITCHELL, McNUTT & SAMS, P.A.


POST OFFICE BOX 7120
105 SOUTH FRONT STREET
TUPELO, MS 38802-7120
TELEPHONE: (662) 842-3871
FAX: (662) 842-8450
jhill@mitchellmcnutt.com

POST OFFICE BOX 1366


215 FIFTH STREET NORTH
COLUMBUS, MS 39701
TELEPHONE: (662) 328-2315
FAX: (662) 328-8035
bhuskison@mitchellmcnutt.com

7
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 64 Filed: 02/21/17 8 of 8 PageID #: 306

CERTIFICATE OF SERVICE

I, John S. Hill, certify that on this date I electronically filed the foregoing Motion of City

of Tupelo, Mississippi, Mayor Jason Shelton, in His Official Capacity, and Chief Bart Aguirre,

in His Official Capacity to Compel the Plaintiffs to Provide Substantive Responses to

Interrogatories with the Clerk of the Court using the ECF system which sent notification of such

filing to Carlos E. Moore, Esq., at his electronic address of carlos@carlosmoorelaw.com, Jason

D. Herring, Esq. at his electronic address of jason@jherringlaw.com, and Charles T. Tucker,

Esq. at his electronic address of charles@tuckerlawgroupllp.com.

DATED: February 21, 2017.

_/s/ John S. Hill_______________________


JOHN S. HILL

8
2082601
Case: 1:16-cv-00120-SA-DAS Doc #: 49 Filed: 01/25/17 1 of 4 PageID #: 180

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND ON


BEHALF OF THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF ANTWUN "RONNIE" SHUMPERT, SR.,
DECEASED AND CHARLES FOSTER PLAINTIFFS

V. CAUSE NO.: I:16cvl20-SA-DAS

CITY OF TUPELO, MISSISSIPPI, MAYOR


JASON SHELTON, IN HIS OFFICIAL CAPACITY,
CHIEF BART AGUIRRE, IN HIS OFFICIAL
CAPACITY, OFFICER TYLER COOK, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITIES,
AND "JOHN DOES 1-10", ALL IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITIES DEFENDANTS

MOTION TO COMPEL

The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief

Bart Aguirre, in his official capacity (these defendants) move the Court pursuant to Rule 37 of

the Federal Rules of Civil Procedure to enter an order compelling the plaintiffs to fully answer

each interrogatory and request for production of document propounded to them by these

defendants, to include in that order a declaration that any objections to these defendants

interrogatories and requests for production of documents have been waived by the plaintiffs and

to assess costs, including attorneys fees, incurred by these defendants in seeking this relief. In

support of this motion these defendants say as follows:

1. These defendants served on counsel of record their, First Set of Interrogatories,

2070953
Case: 1:16-cv-00120-SA-DAS Doc #: 49 Filed: 01/25/17 2 of 4 PageID #: 181

Requests for Production of Documents and Requests for Admission Propounded to Peggy

Shumpert, Individually and on Behalf of the Heirs and Wrongful Death Beneficiaries of Antwun

Ronnie Shumpert, Sr., Deceased on November 23, 2016 (written discovery to Shumpert).

2. These defendants served on counsel of record their, First Set of Interrogatories,

Requests for Production of Documents and Requests for Admission Propounded to Charles

Foster on November 23, 2016 (written discovery to Foster).

3. Attached hereto as Exhibit 1 is a copy of the written discovery to Shumpert and

attached hereto as Exhibit 2 is a copy of the written discovery to Foster.

4. Both Shumpert and Foster, through counsel, served responses to these defendants

requests for admission on December 12, 2016.

5. Neither Foster nor Shumpert have responded to interrogatories and requests for

production of documents propounded to them.

6. The undersigned counsel for these defendants wrote counsel for the plaintiffs on

January 11, 2017, in an effort to confer in good faith pursuant to Local Rule 37 regarding the

plaintiffs failure to respond to these defendants interrogatories and requests for production of

documents. Attached hereto as Exhibit 3 is a copy of the referenced January 11, 2017, letter,

and attached as Exhibit 4 is a copy of the undersigneds Affidavit detailing the lack of

cooperation by the plaintiffs and requesting appropriate sanctions.

7. The plaintiffs still have not responded to these defendants interrogatories and

requests for production of documents, which makes it a practical impossibility for these

defendants to adequately defend claims asserted against them and operates as actual prejudice to

these defendants.

8. Consistent with the general rule that when a party fails to object timely to

2070953
Case: 1:16-cv-00120-SA-DAS Doc #: 49 Filed: 01/25/17 3 of 4 PageID #: 182

interrogatories, production requests, or other discovery efforts, objections thereto are waived,

these defendants ask the Court to include in its order not only that the plaintiffs be compelled to

answer the outstanding interrogatories and requests for production of documents, but also that

any objection to these written discovery requests has been waived. See, e.g., Estate of Eva Boles

v. National Heritage Realty, Inc., 2010 U.S. Dist. LEXIS 79770 (N.D. Miss. 2010).

9. This case is set for trial beginning December 4, 2017, and a Case Management

Order has been entered setting a deadline for the defendants to designate expert witnesses of

April 18, 2017 and establishing a deadline for completion of discovery of June 20, 2017. As

stated hereinabove, these defendants are prejudiced by the plaintiffs failure to timely respond to

written discovery.

For the reasons set out herein, and as stated in the accompanying Memorandum of

Authorities in Support of Motion to Compel, these defendants seek entry of an order directing

the plaintiffs to respond immediately to each outstanding interrogatory and request for

production of document, finding that all objections to these interrogatories and document

requests have been waived and to award appropriate sanctions consistent with Rule 37 of the

Federal Rules of Civil Procedure, including an assessment of attorneys fees.

DATED: January 25, 2017.

CITY OF TUPELO, MISSISSIPPI, MAYOR


JASON SHELTON, IN HIS OFFICIAL
CAPACITY, AND CHIEF BART AGUIRRE, IN
HIS OFFICIAL CAPACITY, DEFENDANTS

BY:_/s/ John S. Hill________________________


JOHN S. HILL, MB# 2451
BERKLEY N. HUSKISON, MB# 9582

2070953
Case: 1:16-cv-00120-SA-DAS Doc #: 49 Filed: 01/25/17 4 of 4 PageID #: 183

OF COUNSEL

MITCHELL, McNUTT & SAMS, P.A.


POST OFFICE BOX 7120
105 SOUTH FRONT STREET
TUPELO, MS 38802-7120
TELEPHONE: (662) 842-3871
FAX: (662) 842-8450
jhill@mitchellmcnutt.com

POST OFFICE BOX 1366


215 FIFTH STREET NORTH
COLUMBUS, MS 39701
TELEPHONE: (662) 328-2315
FAX: (662) 328-8035
bhuskison@mitchellmcnutt.com

CERTIFICATE OF SERVICE

I, John S. Hill, certify that on this date I electronically filed the foregoing Motion to

Compel with the Clerk of the Court using the ECF system which sent notification of such filing

to the following:

carlos@carlosmoorelaw.com jason@jherringlaw.com
Carlos E. Moore, Esq. Jason D. Herring, Esq.
Moore Law Group, P.C. Herring Chapman, PA
Post Office Box 1487 Post Office Box 842
Grenada, MS 38902-1497 Tupelo, MS 38802

DATED: January 25, 2017.

__/s/ John S. Hill______________________


JOHN S. HILL

2070953
Case: 1:16-cv-00120-SA-DAS Doc #: 39 Filed: 11/23/16 1 of 3 PageID #: 158

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND ON


BEHALF OF THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF ANTWUN RONNIE SHUMPERT, SR.,
DECEASED AND CHARLES FOSTER PLAINTIFFS

VS. CAUSE NO. 1:16cv120-SA-DAS

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, CHIEF BART
AGUIRRE, IN HIS OFFICIAL CAPACITY,
OFFICER TYLER COOK, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES AND JOHN
DOES 1-10, ALL IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES DEFENDANTS

NOTICE OF SERVICE OF DISCOVERY

TO: Carlos E. Moore, Esq. Jason D. Herring, Esq.


Moore Law Group, P.C. Herring Chapman, PA
Post Office Box 1487 Post Office Box 842
Grenada, MS 38902-1497 Tupelo, MS 38802

Notice is hereby given that on the date entered below City of Tupelo, Mississippi, Mayor

Jason Shelton, in his official capacity, and Chief Bart Aguirre, in his official capacity, have this

date served its First Set of Interrogatories, Requests for Production of Documents and Requests

for Admission Propounded Peggy Shumpert, Individually and on Behalf of the Heirs and

Wrongful Death Beneficiaries of Antwun Ronnie Shumpert, Sr., Deceased.

The undersigned counsel of record retains the original of these discovery documents as

custodian thereof pursuant to local court rule.

2046613
Case: 1:16-cv-00120-SA-DAS Doc #: 39 Filed: 11/23/16 2 of 3 PageID #: 159

Dated: November 23, 2016.

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS
OFFICIAL CAPACITY, CHIEF BART
AGUIRRE, IN HIS OFFICIAL
CAPACITY, DEFENDANTS

BY: /s/John S. Hill


JOHN S. HILL, MB# 2451
BERKLEY N. HUSKISON, MB# 9582

OF COUNSEL

MITCHELL, McNUTT & SAMS, P.A.


POST OFFICE BOX 7120
105 SOUTH FRONT STREET
TUPELO, MS 38802-7120
TELEPHONE: (662) 842-3871
FAX: (662) 842-8450
jhill@mitchellmcnutt.com

POST OFFICE BOX 1366


215 FIFTH STREET NORTH
COLUMBUS, MS 39701
TELEPHONE: (662) 328-2315
FAX: (662) 328-8035
bhuskison@mitchellmcnutt.com

2
2046613
Case: 1:16-cv-00120-SA-DAS Doc #: 39 Filed: 11/23/16 3 of 3 PageID #: 160

CERTIFICATE OF SERVICE

I, John S. Hill, certify that on this date I electronically filed the foregoing Notice of

Service of Discovery with the Clerk of the Court using the ECF system which sent notification of

such filing to the following:

carlos@carlosmoorelaw.com jason@jherringlaw.com
Carlos E. Moore, Esq. Jason D. Herring, Esq.
Moore Law Group, P.C. Herring Chapman, PA
Post Office Box 1487 Post Office Box 842
Grenada, MS 38902-1497 Tupelo, MS 38802
Counsel for Plaintiffs Counsel for Tyler Cook

DATED: November 23, 2016.

/s/John S. Hill
JOHN S. HILL

3
2046613
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 1 of 26 PageID #: 309
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 2 of 26 PageID #: 310
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 3 of 26 PageID #: 311
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 4 of 26 PageID #: 312
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 5 of 26 PageID #: 313
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 6 of 26 PageID #: 314
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 7 of 26 PageID #: 315
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 8 of 26 PageID #: 316
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 9 of 26 PageID #: 317
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 10 of 26 PageID #: 318
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 11 of 26 PageID #: 319
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 12 of 26 PageID #: 320
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 13 of 26 PageID #: 321
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 14 of 26 PageID #: 322
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 15 of 26 PageID #: 323
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 16 of 26 PageID #: 324
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 17 of 26 PageID #: 325
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 18 of 26 PageID #: 326
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 19 of 26 PageID #: 327
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 20 of 26 PageID #: 328
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 21 of 26 PageID #: 329
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 22 of 26 PageID #: 330
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 23 of 26 PageID #: 331
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 24 of 26 PageID #: 332
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 25 of 26 PageID #: 333
Case: 1:16-cv-00120-SA-DAS Doc #: 64-2 Filed: 02/21/17 26 of 26 PageID #: 334
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 1 of 13 PageID #: 249

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

PEGGY SHUMPERT, INDIVIDUALLY, AND AS


ADMINISTRATOR OF THE ESTATE OF ANTWUN
SHUMPERT, SR., AND ON BEHALF OF THE HEIRS
AND WRONGFUL DEATH BENEFICIARIES OF ANTWUN
RONNIE SHUMPERT, SR., DECEASED,
THE ESTATE OF ANTWUN SHUMPERT, SR.,
AND CHARLES FOSTER PLAINTIFFS

V. CAUSE NO.: 1:16cv120-GHD-DAS

CITY OF TUPELO, MISSISSIPPI,


MAYOR JASON SHELTON, IN HIS OFFICIAL
CAPACITY, CHIEF BART AGUIRRE, IN HIS
OFFICIAL CAPACITY, OFFICER TYLER COOK,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES,
AND JOHN DOES 1-10, ALL IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITIES DEFENDANTS

SECOND AMENDED COMPLAINT


(JURY TRIAL DEMANDED)

COME NOW PLAINTIFFS, PEGGY SHUMPERT, INDIVIDUALLY, AND ON

BEHALF OF THE HEIRS AND WRONGFUL DEATH BENEFICIARIES OF ANTWUN

RONNIE SHUMPERT, SR., DECEASED AND CHARLES FOSTER (hereinafter

Plaintiffs), by and through their attorney of record, and file this, their AMENDED

COMPLAINT, and would allege the following:

PARTIES

1. Plaintiff Peggy Shumpert is an adult resident citizen of Mississippi, residing in Lee

County, Mississippi. She brings suit on behalf of the wrongful death beneficiaries

of Antwun Ronnie Shumpert, Sr., (Decedent), for the negligent actions that

caused his death. The Chancery Court of Lee County entered an Order on January

23, 2017, opening the Estate of Antwun Shumpert, Sr., appointing Administrator,
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 2 of 13 PageID #: 250

and granting Letters of Administration. The Estate of Antwun Shumpert, Sr. by and

through Peggy Shumpert, Administratrix of the Estate, is also a Plaintiff.

2. Plaintiff Charles Foster is an adult resident citizen of Mississippi, residing in Union

County, Mississippi.

3. Defendant City of Tupelo (hereinafter Defendant City) is a municipal entity that

may be served with process by service upon Kim Hannah, City Clerk, at the office

of the City Clerk, located at 71 East Troy Street, Tupelo, Mississippi 38804.

4. Defendant Mayor Jason Shelton (hereinafter Defendant Shelton) is an adult

resident citizen of Mississippi, employed with the City of Tupelo, can be served

with process at Tupelo City Hall, located at 71 East Troy Street, Tupelo, Mississippi

38804.

5. Defendant Chief Bart Aguirre (hereinafter Defendant Aguirre) is an adult resident

citizen of Mississippi, employed with the City of Tupelo Police Department, and

can be served with process at 118 Lemons Drive, Tupelo, Mississippi 38801.

6. Defendant Officer Tyler Cook (hereinafter Defendant Cook) is an adult resident

citizen of Mississippi, employed with the City of Tupelo Police Department, and

can be served with process at 118 Lemons Drive, Tupelo, Mississippi 38801.

7. Defendant John Does 1-10 (hereinafter Defendant Does 1-10) are adult resident

citizens of Mississippi, employed with the City of Tupelo Police Department whose

true identities are currently unknown, and can be served with process at 118

Lemons Drive, Tupelo, Mississippi 38801.

JURISDICTION
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 3 of 13 PageID #: 251

8. This Court has jurisdiction over the subject matter herein pursuant to the provisions

of Section 9-7-81 of the Mississippi Code of 1972, annotated, as amended in that

all defendants are domiciled in Mississippi.

9. This Court has subject matter jurisdiction pursuant to 28 USC 1331, as the events

giving rise to this action involve a federal question.

VENUE

10. Venue is proper in this Court pursuant to Section 11-11-13 of the Mississippi Code

of 1972, annotated, as amended, in that the incidents which gave rise to these

claims occurred in Lee County, Mississippi, which is located within the Northern

District of Mississippi.

UNDERLYING FACTS

11. On or about June 18, 2016, Antwun Ronnie Shumpert, Sr. around 9:30 pm was

driving a vehicle owned by his teammate and friend, Charles Foster, with Charles

Foster sitting in the passenger seat. Shumpert and Foster were driving to a store

to pick up a shirt for Foster to wear a party that night. While obeying all rules of the

road and driving near the Lee Acres subdivision in Tupelo a police cruiser driven

by an officer from the City of Tupelo Police Department flashed its blue lights after

following Shumpert for a short distance. Shumpert pulled over the Foster vehicle

and immediately fled the vehicle, running behind several houses in the Lee Acres

subdivision.

12. After Shumpert fled, Officer Tyler Cook and his city assigned K9 gave immediate

chase, not knowing who they were chasing or why. Shumpert initially hid from the

police but eventually tried to surrender voluntarily and come from his hiding place
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 4 of 13 PageID #: 252

as he heard the dog approach. As Shumpert attempted to voluntarily surrender,

the K9 viciously attacked Shumpert, biting him in the groin, ripping his flesh leaving

a gaping hole at least six inches deep in his groin, and nearly mutilating his testicls

after shredding his scrotum. Said K9 also severely clawed Shumpert on his back

and inflicted other injuries and bruises to the person of Antwun Shumpert. Mr.

Shumpert tried to defend himself against the unlawful, excessive, and vicious

attack of the K9. While trying to defend himself against total annihilation by the K9,

Officer Tyler Cook approached the unarmed Shumpert and shot him four times,

three times to the chest and once in the abdomen. Cook also punched Shumpert

in his face and kicked or stomped Shumpert in the mouth knocking four of his

bottom teeth back towards his throat. This all occurred less than 10 minutes after

the initial traffic stop and Shumpert was placed in handcuffs by Cook after the

vicious attack and shooting while Shumpert laid in a pool of blood. The initial traffic

stop was not lawful as no probable cause existed for the stop and to this day no

one with the City of Tupelo has advised Shumpert or Foster as to the reason for

the traffic stop. Shumpert and Plaintiff Foster were the victims of racial profiling.

Cook did not even know the identity of the individual he was chasing and had no

knowledge at the time of any outstanding warrants Shumpert may or may not have

had. Neither did Cook have any reason to believe that Shumpert was armed and

dangerous. In fact, Shumpert has never been charged with, indicted, or convicted

of any violent crime. He was a non-violent individual.

13. Subsequently, an ambulance was eventually called to the scene, and Antwun

Shumpert was transported to North Mississippi Medical Center where he died on


Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 5 of 13 PageID #: 253

Fathers Day, June 19th, around 1:20 a.m., leaving a wife and five children to mourn

his loss.

14. As for Charles Foster, he was detained unlawfully for an extended period of time

by officers of the City of Tupelo police department, wrongly arrested and placed in

handcuffs which were too tight causing extreme pain, transported to the city jail,

and finally released with no charges filed against him. All of this after he heard his

friend and teammate fatally shot four times by the police for simply fleeing from

them. Foster has suffered and continues to suffer extreme emotional distress and

mental anguish because of the actions of Defendants.

15. As a result of the foregoing, Plaintiffs were caused to suffer physical, mental,

and/or emotional injurie.

COUNT ONE

CONSTITUTIONAL VIOLATIONS PURSUANT TO 42 U.S.C.A. 1983, DUE TO


PATTERNS, POLICIES, PRACTICES AND/OR CUSTOMS OF THE CITY OF
TUPELO, MAYOR JASON SHELTON IN HIS OFFICIAL CAPACITY, AND CHIEF
BART AGUIRRE IN HIS OFFICIAL CAPACITY

16. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and

statements.

17. The Plaintiffs allege that Defendant City of Tupelo, Shelton, and Aguirre are liable

for violating Antwun Shumpert and Charles Fosters constitutional rights, pursuant

to 1983, as said governmental entity and officials violated decedent and Fosters

constitutional rights via official policies or customs, of which said Defendants had

actual or constructive knowledge, and said policies, customs, patterns, and/or

practices were the moving force of the constitutional violations perpetrated by

Tyler Cook and the K9 in his charge.


Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 6 of 13 PageID #: 254

18. The reprehensible acts of the Defendants demonstrate grossly negligent,

oppressive, and reckless conduct. These Defendants conspired to protect their

own interests and reputations, to the disregard and detriment of Plaintiffs and

decedent.

19. As a direct and proximate result of Defendants acts or reckless disregard and

unconstitutional policies, practices, patterns, and/or customs, the Plaintiffs

sustained the damages set forth herein and all damages that will be proved at trial

hereon.

COUNT TWO

CIVIL ASSAULT AND BATTERY

20. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and

statements.

21. The Defendant Tyler Cook is liable for civil assault and battery. The Plaintiffs allege

that Tyler Cook inflicted extreme physical pain and inhumane torture upon Antwun

Shumpert by attacking him with a vicious K9 and shooting him four times with a

pistol as well as other bodily assault and battery, causing harm to his person and

eventually leading to his death. The aforementioned Defendant has caused

Plaintiffs to suffer from extreme emotional distress and mental anguish, anxiety,

as well as, severe pain and suffering.

22. One or more of the Defendants is liable for civil assault and battery as it relates to

Charles Foster for causing him pain by putting him in handcuffs which were too

tight and unlawful, causing him unnecessary bodily injury and pain.
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 7 of 13 PageID #: 255

23. As a direct and proximate result of aforementioned Defendants acts, Plaintiffs

sustained the damages set forth herein and all damages that will be proved at trial

hereon.

COUNT THREE

VIOLATION OF DUE PROCESS, EQUAL DIGNITY,


AND EQUAL PROTECTION,
CIVIL RIGHTS LAWS UNDER 42 U.S.C. Section 1983 and 28 U.S.C.
Section 1343 et al

24. The Plaintiffs incorporate and adopts all prior paragraphs, averments, and

statements.

25. Plaintiffs would show unto the Court that the Defendants intentionally, recklessly,

and/or negligently took actions to deprive Antwun Shumpert and Charles Foster of

their due process, equal dignity, and equal protection rights pursuant to the 14

Amendment, and violated other of their civil rights under federal laws and the

United States Constitution, including violating their 4th Amendment right to be free

of unnecessary and unreasonable search and seizure.

26. The Plaintiffs suffered damages as a result of the aforementioned conduct as set

out heretofore and/or hereinafter.

27. Antwun Shumperts right to due process was denied and he suffered damages as

a result of being denied prompt medical care by Cook or other medical trained

officers after he was attacked and shot. There was also an unreasonable and

unconstitutional delay of medical care as Tyler Cook did not immediately call for

an ambulance after he shot and beat Antwun Shumpert and ordered and allowed

his city owned K9 to attack and mutilate Mr. Shumpert.


Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 8 of 13 PageID #: 256

28. Plaintiffs would show unto the Court that the Defendants acted with deliberate

indifference to Mr. Shumperts immediate need for medical care in violation of his

rights under the 14th Amendment.

COUNT FOUR

EXCESSIVE FORCE

29. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and

statements.

30. Plaintiffs would show unto the Court that the Defendants took actions to deprive

Mr. Shumpert and Plaintiff Foster of their Fourth Amendment protection against

excessive force.

31. The force used by officers employed by the City of Tupelo was excessive to the

need and not objectively reasonable under the circumstances.

COUNT FIVE

WRONGFUL DEATH

32. The Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

33. As a direct and proximate result of Defendants actions, negligence, carelessness,

indifference, constitutional violations, and/or reckless disregard as described

above, Antwun Ronnie Shumpert, Sr., sustained injuries which proximately

caused his death on June 19, 2016.

34. As a direct and proximate result of the foregoing, and the death of Antwun Ronnie

Shumpert, Sr., Plaintiff Peggy Shumpert as well as the five children of Antwun

Ronnie Shumpert have been deprived of their kind and loving husband and
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 9 of 13 PageID #: 257

fathers, Antwun Ronnie Shumpert, Sr., care, comfort, society, protection, love,

companionship, affection, solace, moral support, financial assistance, consortium,

and/or physical assistance in the operation and maintenance of the home. Ronnie

also experienced pre-death pain and suffering prior to expiring from the dog bites,

body blows, and gunshot wounds he sustained at the hands of one or more

Defendants.

COUNT SIX

INJUNCTION PROHIBITING FUTURE CONDUCT OF A SIMILAR CHARCTER, KIND


OF NATURE

35. The Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

36. The Plaintiffs are entitled to, and hereby request, and injunction prohibiting the

Defendants from committing conduct of the like, kind, character and nature as that

demonstrated and described in this complaint at any time in the future within the

jurisdiction of the United States District Court for the Northern District of

Mississippi, Aberdeen Division.

COUNT SEVEN

GENERAL NEGLIGENCE

37. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and

statements.

38. The Plaintiffs allege that the Defendant Officers, in their Individual Capacities,

breached their duty of ordinary care, and proximately caused Plaintiffs injuries.

39. As a direct and proximate result of Defendants negligence, the Plaintiffs sustained

the damages set forth herein and all damages that will be proved at trial hereon.
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 10 of 13 PageID #: 258

COUNT EIGHT

NEGLIGENT, GROSSLY NEGLIGENT, AND WANTON FAILURE IN HIRING AND TO


MONITOR, TRAIN, AND SUPERVISE THE OFFICERS INVOLVED

40. The Plaintiffs re-allege and incorporate each and every preceding paragraphs as

if fully set forth herein.

41. Defendant City and Defendant Chief were grossly negligent and/or wanton in

failing to monitor the actions of the officers involved. Defendant City and Defendant

Chief negligently and/or wantonly failed to train the aforementioned officers to

properly protect, investigate, interrogate, detain, accost, search, prosecute, judge,

or arrest Michael McDougle, Sr., and other similarly situated individuals. Defendant

City and Chief negligently and/or wantonly failed to properly followed and/or apply

its own municipal and law enforcement rules, ordinances, regulations, policies and

procedures, as well as state law generally. Defendants City and Chief negligently

hired and/or retained the officers involved, agents, and/or employees, having

knowledge of their propensity for malicious abuse of process, failure to follow

promulgated rules and guidelines, and obstruction of justice.

42. Defendants Citys and Defendant Chiefs policy and/or custom of encouraging

and/or ratifying police brutality, and their failure to properly train city police

department employees against excessive force, caused the deprivation of Antwun

Ronnie Shumpert and Charles Fosters constitutional rights.

43. As a direct and proximate result of Defendants negligent, gross negligent,

reckless, and/or intentional acts and/or omissions, the Plaintiffs sustained the

damages set forth herein and all damages that will be proved at trial hereon.

COUNT NINE
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 11 of 13 PageID #: 259

INTENTIONAL AND/OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

44. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and

statements.

45. Plaintiffs allege that the Defendants, with reckless disregard, inflicted extreme

emotional distress upon Plaintiffs mind, spirit, and body. By condoning and/or

ratifying the acts of the officers involved, the Defendants have caused Plaintiffs to

suffer from emotional problems and mental anxiety.

46. The reprehensible acts of the Defendants demonstrate grossly negligent,

oppressive, and reckless conduct.

47. As a direct and proximate result of Defendants acts of reckless disregard, the

Plaintiffs sustained the damages set forth herein and all damages that will be

proved at trial hereon.

PRAYER FOR APPROPRIATE RELIEF

48. Plaintiffs incorporate and adopt all prior paragraphs, averments, and statements.

49. As a result of the acts of the Defendants named herein whether intentional, as a

result of negligence, gross negligence, negligence per se or reckless disregard for

the safety and well-being of decedent and/or Foster, Plaintiffs have suffered severe

damages for which the Defendants should be held jointly and vicariously liable.

50. All Defendants are jointly and severally liable to the Plaintiffs for the following

damages: past, present and future pain, suffering and mental and emotional

anguish; past, present and future loss of mobility and capacity; loss of enjoyment

of lifes normal activities; loss of society, lost wages, loss of wage earning capacity,

loss of consortium, and all other damages to be proved at trial.


Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 12 of 13 PageID #: 260

51. The Plaintiffs bring this action against all Defendants and demand judgment and

compensatory damages as a result of the unlawful acts in an amount to be

determined by this Court.

52. The acts of the Defendants enumerated herein were so grossly negligent and

reckless; utterly offensive; and were committed with such utter disregard for the

rights of Plaintiffs, and others similarly situated, as to amount to willful, wanton

and/or intentional misconduct, thereby entitling Plaintiffs to an award of punitive

damages to be determined by the Court, with this amount being sufficient to deter

these Defendants from continuing this conduct in the future.

WHEREFORE, THE ABOVE BEING CONSIDERED, the Plaintiffs respectfully

pray for judgment against all Defendants including compensatory damages, Veasley

damages, punitive damages, and injunctive relief, any and all damages allowed by federal

law, attorneys fees, pre-judgment interest, post judgment interest, and all costs of this

proceeding, with such final amount being at least $35,000,000.00.

This the 8th day of February, 2017.

RESPECTFULLY SUBMITTED,

PEGGY SHUMPERT, ET AL., PLAINTIFFS

BY: _s/ Carlos E. Moore____________________


Carlos E. Moore, MSB# 100685
OF COUNSEL:

MOORE LAW GROUP, P.C.


306 Branscome Drive
P. O. Box 1487
Grenada, MS 38902-1487
662-227-9940 phone
662-227-9941 fax
carlos@carlosmoorelaw.com
Case: 1:16-cv-00120-SA-DAS Doc #: 59 Filed: 02/08/17 13 of 13 PageID #: 261

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that I have this date served via electronic filing
system and/or mailed via U.S. Mail, postage pre-paid, a true and correct copy of the above
and foregoing to the following:

John S. Hill, Esq.


MITCHELL, McNUTT & SAMS, P.A.
P. O. Box 7120
105 South Front Street
Tupelo, MS 38802-7120
jhill@mitchellmcnutt.com

Berkley N. Huskison, Esq.


MITCHELL, McNUTT & SAMS, P.A.
P. O. Box 1366
215 Fifth Street North
Columbus, MA 39701
bhuskison@mitchellmcnutt.com

Jason D. Herring, Esq.


HERRING CHAPMAN, P.A.
342 North Broadway Street
Tupelo, MS 38804
jason@herringchapmanlaw.com

Brad K. Morris, Esq.


BRAD MORRIS LAW FIRM, PLLC
P. O. Box 2136
Oxford, MS 38655
brad@bradmorrislawfirm.com

THIS, the 8th day of February, 2017.

s/ Carlos E. Moore _________


CARLOS E. MOORE, ESQ.

You might also like