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Case 3:14-cv-00745-HTW-LRA Document 1 Filed 09/23/14 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

Octavious Burks; Joshua Bassett, on Behalf of

*

Themselves and All Others Similarly Situated,

*

*

Plaintiffs,

*

vs.

*

Case No:

*

Scott County, Mississippi; The Honorable

*

Marcus D. Gordon, in his official capacity;

*

The Honorable Bill Freeman, in his official

*

capacity; The Honorable Wilbur McCurdy,

*

in his official capacity; Mark Duncan,

*

District Attorney for the 8th Circuit Court

*

District, in his official capacity; Mike Lee,

*

Scott County Sheriff, in his official capacity;

*

*

Defendants.

*

CLASS ACTION COMPLAINT

1

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Case 3:14-cv-00745-HTW-LRA Document 1 Filed 09/23/14 Page 2 of 17

INTRODUCTION 1. Plaintiff Octavious Burks is an unindicted felony defendant who has been held in the Scott County Detention Center without counsel since November 18, 2013. Plaintiff Joshua Bassett is an unindicted felony defendant who has been held in the Scott County Detention Center since January 16, 2014. They bring this class action suit under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been indefinitely detained without individualized bail hearings in Scott County and who have been indefinitely denied counsel throughout the Eighth Circuit Court District. 2. Plaintiffs seek, for themselves and those similarly situated, declaratory and injunctive relief to end and remedy Defendants' unconstitutional policies, which violate Plaintiffs' Sixth and Fourteenth Amendment rights to the assistance of counsel, their Sixth Amendment rights to a speedy trial, their Fourteenth Amendment rights against excessive and punitive pre-indictment detention, and their Fourteenth Amendment rights to an individualized bail hearing and determination.

JURISDICTION AND VENUE 3. Plaintiffs' claims arise under the Constitution and laws of the United States. This

Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3).

4. This Court has the authority to grant declaratory and injunctive relief under 28

U.S.C. § 2201-2202 and Fed. R. Civ. P. 57 and 65. The federal rights asserted by Plaintiffs

are enforceable under 42 U.S.C. § 1983.

5.

Venue is proper in the Southern District of Mississippi under 28 U.S.C. §

1391(e). All Defendants, as well as the Named Plaintiffs and all potential class members,

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reside in this judicial district. All of the acts and omissions by Defendants giving rise to this action occurred in this judicial district.
PARTIES Named Plaintiffs
6. Named Plaintiff Octavious Burks is a resident of Scott County, Mississippi. 7. On November 18, 2013, Mr. Burks was arrested in Scott County for attempted armed robbery, possession of a weapon by a felon, disorderly conduct, and possession of paraphernalia. 8. Justice Court Judge Bill Freeman conducted Mr. Burks' initial appearance on November 18,2013. Mr. Burks was umepresented at the initial appearance. 9. Mr. Burks has a fundamental constitutional right to bail under the Mississippi Constitution. Nevertheless, on the recommendation of the arresting officer, Judge Freeman set Mr. Burks' bail at $30,000. Judge Freeman set bail without any individualized hearing or consideration of the bail factors required under state or federal law, including ability to afford bail and the appropriateness of nonmonetary bail options. 10. Mr. Burks could not afford this bail amount when it was set, and he continues to be financially unable to pay either the bond as set or any percentage of the bond that would be required for him to secure bond through a licensed bond company or agent. Moreover, Mr. Burks does not have resources to enable him to post any kind of property bond in the amount of $30,000. Judge Freeman's order therefore constituted a denial of bail to Mr. Burks.
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11. Mr. Burks was subsequently remanded to the Scott County Detention Center in Forest, Mississippi. He remains detained there to this day.
12. Despite being detained for over ten months, Mr. Burks has not been indicted by a grand jury.
13. On November 18, 2013, the day ofhis initial appearance, Mr. Burks completed an Affidavit of Indigence and Application for Appointment of Felony Indigent Counsel.
14. Senior Circuit Judge Marcus Gordon approved Mr. Burks' application for counsel on or about December 19, 2013.
15. Judge Gordon nonetheless has not formally appointed counsel to represent Mr. Burks. Judge Gordon will not appoint counsel until Mr. Burks is indicted.
16. This case is not Mr. Burks' first experience with prolonged detention without counsel in Scott County. On two prior occasions, each for separate felony accusations, Mr. Burks has been held in the Scott County Detention Center without an affordable bail, without counsel, and without indictment.
17. Mr. Burks was first held for nearly 18 months, from August 30, 2009 to February 18, 2011 on suspicion of aggravated assault and disturbing the peace. He was indicted sometime around December, 2010, nearly sixteen months after his arrest. Mr. Burks was released in February, 2014.
18. Mr. Burks was held the second time for nearly a year, from June 18, 2012 to June 7, 2013 for possession of a firearm by a felon. The Sheriffs office eventually released him on his own recognizance without a hearing. Upon information and belief, Mr. Burks has never been indicted on these allegations.
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19. All told, Mr. Burks has spent over three years in the Scott County jail since August 30, 2009, on three separate charges. He has only been indicted once, he has never been to trial, and he has never been convicted.
20. Named Plaintiff Joshua Bassett is a resident of Scott County, Mississippi. 21. Plaintiff Bassett was arrested on January 3, 2014 pursuant to a warrant issued the same day for grand larceny and possession of methamphetamine. 22. Justice Court Judge Bill Freeman conducted Plaintiff Bassett's initial appearance on January 16, 2014. Mr. Bassett was unrepresented at the initial appearance. 23. Mr. Bassett has a fundamental constitutional right to bail under the Mississippi Constitution. Nevertheless, on the recommendation of the arresting officer, Judge Freeman set Mr. Bassett's bail at $100,000. Judge Freeman set bail without any individualized hearing or consideration of the bail factors required under state or federal law, including the appropriateness of nonmonetary bail options. 24. Mr. Bassett could not afford this bail amount when it was set, and he continues to be financially unable to pay either the bond as set or any percentage of the bond that would be required for him to secure bond through a licensed bond company or agent. Moreover, Mr. Bassett does not have resources to enable him to post any kind of property bond in the amount of $100,000. Judge Freeman's order therefore constituted a denial of bail to Mr. Bassett. 25. Mr. Bassett was subsequently remanded to the Scott County Detention Center in Forest, Mississippi, where he has since remained. 26. On April 30, 2014, an arrest warrant issued for Mr. Bassett on one allegation of burglary and two allegations of petty larceny.
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27. Despite being detained for over eight months, Mr. Bassett has not been indicted by a grand jury on any of these accusations.
28. In March or April of 2014, Mr. Bassett completed an Affidavit of Indigence and Application for Appointment of Felony Indigent Counsel.
29. Senior Circuit Judge Marcus Gordon approved Mr. Bassett's application for counsel on or about May 21, 2014.
30. Judge Gordon nonetheless has not formally appointed counsel to represent Mr. Bassett. Judge Gordon will not appoint counsel until Mr. Bassett is indicted.
Defendants
31. Defendant Scott County is one of four counties in the Eighth Circuit Court District of Mississippi. Scott County, through its Board of Supervisors and pursuant to Miss. Code Ann. § 19-3-69, has entered a Contract for Employment of Felony Indigent Counsel ("the Contract") with the circuit court, the Board of Supervisors of the other three counties in the Eighth Circuit, and four private attorneys.
32. The contract obligates the county to provide a public defender to represent indigent felony defendants in preliminary hearings in the Justice and Municipal Courts, as well as in appearances and trials in the circuit court.
33. Defendant the Honorable Marcus D. Gordon is the senior circuit judge for the Eighth Circuit Court District of Mississippi, located in Philadelphia, Mississippi and comprised of Leake, Neshoba, Newton, and Scott Counties. He is sued only in his official capacity.
34. Defendant Gordon signed the Contract for Employment of Felony Indigent Counsel on behalf of the Eighth Circuit. Under the contract and by custom, Defendant
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Gordon approves or disapproves the applications of individuals seeking appointed counsel due to indigence.
35. Under the contract and by custom, Defendant Gordon sets the appointment of counsel policies for all counties in the Eighth Circuit Court District. Judge Gordon's uniform policy is to delay appointing counsel to eligible, indigent defendants until they have been indicted, although the Contract requires indigent counsel to provide representation for preliminary hearings. 1
36. Defendant Gordon is charged with impaneling grand juries in the Eighth Circuit District Court. MS. R. Unif. Cir. And Cty. Ct. Rule 7.02. In Scott County, he impanels the grand jury three times per year.
37. Defendants Bill Freeman and Wilbur McCurdy are the Scott County Justice Court judges. In felony cases prior to indictment, they are responsible for conducting initial appearances and preliminary hearings, as well as for setting the conditions of release for defendants. They are sued only in their official capacities.
38. Defendant Mark Duncan is the District Attorney for the Eighth Circuit District of Mississippi. His office is responsible for prosecuting felony cases in the District, including representing the state before the grand jury. He is sued solely in his official capacity.
39. Defendant Mike Lee is the Sheriff of Scott County. His office is responsible for the custody and control of individuals detained at the Scott County Detention Center.
1 Felony defendants in Mississippi have a right to request and to receive a preliminary hearing to challenge probable cause for the charges prior to indictment. MS. R. Unif. Cir. And Cty. Ct. Rule 6.05. A preliminary hearing is an adversarial proceeding at which both the prosecution and defense may call and cross examine witnesses.
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FACTS 40. The State of Mississippi does not impose a limit on either the length of time a district attorney has to present a felony case to the grand jury for indictment, or on the length oftime a felony defendant maybe held in jail without a valid indictment. 41. The potential amount of time an indigent defendant detained on a felony charge may spend in jail prior to indictment is therefore indefinite. 42. The judges of the Scott County Justice Court increase the likelihood of indefinite detention by setting bail in arbitrary amounts, without individualized consideration of the bail factors required under state and federal law, including a defendant's ability to afford bail and the propriety of nonmonetary bail. 43. As a result of these practices by the Justice Court judges, felony defendants in Scott County are routinely detained prior to indictment simply because they are too poor to afford bail. 44. The scarcity of grand jury panels further exacerbates the risk of indefinite preindictment detention in Scott County. 45. Defendant Gordon impanels the Scott County grand jury three times per year, typically in April, July/August, and November/December. 46. Thus, depending on the timing of the arrest, a detained, felony defendant may wait three to five months to learn if he has been indicted. Each time a defendant's case is either not presented to or passed over by the grand jury potentially adds an additional three to five months to the length of detention. 47. The practices of the District Attorney's office also contribute significantly to the incidence of indefinite pre-indictment detention in Scott County.
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48. Specifically, the District Attorney's office does not regularly monitor the progress of law enforcement investigations to avoid delay in the preparation of cases for the grand jury. The District Attorney's office instead has a general policy of not reviewing most felony cases until the investigating law enforcement office completes its investigation and informs the District Attorney that the case is ready for grand jury presentment.
49. Indigent defendants awaiting indictment in Scott County are uniformly denied the assistance of counsel.
50. Pursuant to Defendant Gordon's assignment of counsel policies for the Eighth Circuit, an indigent defendant accused of a felony will not be appointed meaningful, continuous counsel until the defendant is indicted.
51. Because a felony defendant may wait an indefinite amount of time prior to indictment, the amount of time an indigent felony defendant may be denied the assistance of counsel prior to indictment is also indefinite.
52. This systemic denial of counsel is calamitous for those accused of felony offenses in the Eighth District.
53. Accused defendants do not have attorneys to represent them at the initial appearance, where a defendant must argue for release or for reasonable bail. The defendant also does not have an attorney to file a separate habeas action in civil court challenging the bail determination or any other unconstitutional condition of confinement.
54. The defendant has no attorney to protect his right to a preliminary hearing. The defendant lacks counsel to advise him on whether to demand a preliminary hearing, to demand a preliminary hearing, or to prepare for and conduct a preliminary hearing.
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55. An unindicted defendant also has no advocate actively investigating the facts and law underlying the charges, preparing a defense, or negotiating a potential resolution with the State.
CLASS ACTION ALLEGATIONS 56. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Named Plaintiffs Burks and Bassett bring this suit on behalf of themselves and all others similarly situated who are or will in the future be affected by Defendants' unconstitutional policies, practices, and customs. 57. The Named Plaintiffs seek to represent three classes of individuals to obtain declaratory and injunctive relief that requires Defendants to comply with the constitutional requirements of the assistance of counsel, a speedy trial, non-punitive pre-indictment detention, and an individualized bail determination. 58. The Named Plaintiffs seek to represent a first class [Class #1] comprised of felony defendants in the Eighth Circuit Court District who have been or will be declared indigent and who have been or will be denied the assistance of counsel until indictment. 59. The Named Plaintiffs seek to represent a second class [Class #2] that consists of felony defendants in Scott County who have been or will be detained indefinitely prior to indictment. 60. The Named Plaintiffs seek to represent a third class [Class #3] consisting of felony defendants in Scott County with a right to bail under Mississippi law but who are or will be detained indefinitely pursuant to arbitrarily determined bail amounts.
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61. The classes are so numerous that joinder of all members is impracticable, and, because the classes include future members, the size of all three classes will only grow over time so long as Defendants' unconstitutional practices persist.
62. There are questions of law and fact common to each class. 63. Common questions of fact for Class 1 include what are Defendant Gordon's policies with respect to appointing counsel for indigent defendants awaiting indictment and whether he enforces those policies throughout the 8th Circuit Court District. 64. Common questions of fact for Class 2 include how many individuals accused of felonies are currently in jail in Scott County awaiting indictment; what are the Sheriffs Office's policies, practices, and procedures for investigating felonies and handing over cases to the District Attorney for grand jury presentment; and what policies, practices, and procedures does the District Attorney's office follow with respect to monitoring the cases of individuals detained prior to indictment. 65. Common questions of fact for Class 3 include what types of hearings justice court judges provide in determining bail; what factors, if any, justice court judges use to arrive at bail determinations; and how many felony defendants eligible for bail are nonetheless detained due to bail amounts they cannot afford. 66. Common questions of law for Class 1 include whether the initial appearance in Mississippi is a critical stage of the criminal prosecution such that the Sixth and Fourteenth Amendments to the United States Constitution require that defendants in the Eighth Circuit Court District receive meaningful and continuous counsel at the initial appearance; and whether the Sixth and/or Fourteenth Amendments to the United States Constitution guarantee an indefinitely detained, indigent defendant in the Eighth District the right to meaningful and
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continuous appointed counsel immediately following the initial appearance and prior to indictment.
67. Common questions of law for Class 2 include whether the indefinite length of time class members risk spending in jail prior to indictment violates their liberty interests in a speedy trial as protected by the Sixth and Fourteenth Amendments to the United States Constitution; and whether the indefinite length of time class members risk spending in jail prior to indictment violates their rights against excessive and punitive detention prior to indictment guaranteed by the Fourteenth Amendment to the United States Constitution.
68. Common questions of law for Class 3 include whether putative class members in Scott County who have a right to bail under Mississippi law are entitled to an individualized bail determination under the Fourteenth Amendment to the United States Constitution.
69. The claims or defenses of the Named Plaintiffs are typical of the claims or defenses of the three proposed classes. The constitutional deprivations suffered by Named Plaintiffs are the same as those of putative class members.
70. The Named Plaintiffs and their attorneys will fairly and adequately protect the interests of the classes. The Named Plaintiffs have no interests antagonistic to the proposed classes, and they are represented by attorneys with significant expertise in criminal procedure and complex civil litigation.
71. Named Plaintiffs seek systemic reform in Scott County to eliminate indefinite pre-indictment detention and indefinite denial of counsel. Defendants' actions and omissions in violation of the federal constitution apply generally within each class; thus, final declaratory and injunctive relief is appropriate for the proposed classes.
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CLAIMS FOR RELIEF
Count 1: Denial ofthe Sixth and Fourteenth Amendment Right to Counsel
72. Defendant the Honorable Marcus D. Gordon, in his official capacity as the Senior Circuit Court Judge of the Eighth Circuit Judicial District, by failing to appoint meaningful, continuous counsel to indigent defendants accused of felonies either at the initial appearance or immediately after the initial appearance or arrest, and in delaying the appointment of meaningful, continuous counsel until these defendants have been indicted, has violated the Sixth and Fourteenth Amendment right to the assistance of counsel of Named Plaintiffs and putative class members in proposed Class 1.
Count II: Denial ofFourteenth Amendment Right to Counsel
73. Defendant the Honorable Marcus D. Gordon, in his official capacity as the Senior Circuit Court Judge of the Eighth Circuit Judicial District, by failing to appoint meaningful, continuous counsel to eligible indigent defendants accused of felonies either at the initial appearance or immediately after the initial appearance or arrest to conduct a preliminary hearing and begin case preparation, and in delaying the appointment of counsel until these defendants have been indicted, has violated the Fourteenth Amendment due process and equal protection rights to the assistance of counsel of Named Plaintiffs and putative class members in proposed Class 1.
74. Defendant Gordon's policy of denying counsel to unindicted, indigent defendants invidiously discriminates against Named Plaintiffs and the putative Class 1 members by denying them the ability, available to those able to afford private counsel, to obtain the assistance of counsel during the indefinite pre-indictment period.
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75. Defendant Gordon's policy of denying counsel to unindicted indigent defendants creates an undue risk of depriving Named Plaintiffs and the putative Class 1 members of a fundamentally fair adjudicative process.
Count III: Denial ofSixth and Fourteenth Amendment Right to Speedy Trial
76. Defendants, in their official capacities and by their collective policies, practices and procedures described above, have created in Scott County a system of arbitrary, indefinite detention without counsel for unindicted and indigent felony defendants that deprives or unduly risks depriving Named Plaintiffs and putative class members in proposed Class 2 of their liberty as protected by the Sixth and Fourteenth Amendment right to a speedy trial.
Count IV Denial of Fourteenth Amendment Right against Excessive Pre-indictment Detention
77. Defendants, in their official capacities and by their collective policies, practices and procedures described above, have created in Scott County a system of arbitrary, indefinite detention without counsel for unindicted and indigent felony defendants that violates or creates an undue risk of violating Named Plaintiffs' and putative class members in proposed Class 2's right against excessive and punitive pre-indictment detention as guaranteed by Fourteenth Amendment's right to substantive due process.
Count V: Denial ofFourteenth Amendment Right to an Individualized Bail Determination
78. Defendants The Honorable Bill Freeman and The Honorable Wilbur McCurdy, in their official capacities as judges of the Scott County Justice Court, implement a policy and practice of arbitrarily setting bail amounts and conditions for release without individualized
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hearings or consideration of the bail factors required under state and federal law, including a defendant's ability to pay and the propriety of nonmonetary bail.
79. Named Plaintiffs and the putative Class 3 members have a fundamental constitutional right to bail under the Mississippi Constitution that creates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Defendants Freeman and McCurdy's failure to provide individualized bail hearings and determinations therefore violates Named Plaintiffs' and the putative class members' rights to due process under the Fourteenth Amendment.
RELIEF REQUESTED WHEREFORE, Named Plaintiffs Burks and Bassett request that this Court: a. Certify the three proposed classes as defined in paragraphs 1-79 above; b. Enter a judgment declaring that Defendant Gordon has violated Named Plaintiffs' and the Class 1 members' right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution; c. Enter a judgment declaring that Defendant Gordon has violated Named Plaintiffs' and the Class 1 members' right to counsel under the Fourteenth Amendment to the United States Constitution; d. Enter a judgment declaring that Defendants have violated or unduly risk violating Named Plaintiffs' and the Class 2 members' right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution; e. Enter a judgment declaring that Defendants have violated or unduly risk violating Named Plaintiffs' and the Class 2 members' right against excessive and punitive pre-indictment
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detention under the substantive component of the Due Process Clause of Fourteenth Amendment to the United States Constitution; f. Enter a judgment declaring that Defendants Freeman and McCurdy have violated Named Plaintiffs' and the Class 3 members' Fourteenth Amendment due process rights to individualized bail determinations; g. Issue a permanent injunction requiring Defendant Lee to release from his custody those individuals not appointed counsel within one week after their initial appearances; h. Issue a permanent injunction requiring Defendant Lee to release from his custody those individuals who remain unindicted 21 days after their arrests; 1. Issue a permanent injunction requiring Defendants Duncan and Lee to implement policies and procedures to monitor unindicted felony cases to comply with paragraph h and to otherwise ensure against undue pre-indictment delay; J. Award costs and attorney's fees pursuant to 42 U.S.C. § 1988; k. Grant or award any other relief this Court deems just and proper.
This the 23rd day of September, 2014.
Respectfully submitted,
~1 anYdo~~s·key*
Ezekiel Edwards* American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 212-284-7364 bbuskey@aclu.org eedwards@aclu.org
* Pro Hac Admission pending
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Charles Irvin (MS Bar No. 99607) ACLU ofMississippi, Foundation, Inc. 233 East Capital Street Jackson,MS 39201 (601) 3543408 cirvin@aclu-ms.org James Craig (MS Bar No. 7798) Katie Schwartzmann* Roderick and Solange MacArthur Justice
Center 4400 S. Carrollton Avenue New Orleans, LA 70119-6824 504-620-2259 phone jim.craig@macarthurjustice.org katie.schwartzmann@macarthurjustice.org J. Cliff Johnson (MS Bar No. 9383) Roderick and Solange MacArthur Justice
Center P.O. Box 1848 University, MS 38677 662-915-7629 phone cj ohnson@macarthurjustice.org
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 Case 3:14-cv-00745-HTW-LRA Document 39 Filed 12/12/14 Page 1 of 26

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

Octavious Burks; Joshua Bassett, on Behalf of *

Themselves and All Others Similarly Situated, *

*

Plaintiffs,

*

vs.

* Case No: 3:14cv745HTW-LRA

*

Scott County, Mississippi; The Honorable

*

Marcus D. Gordon, in his official capacity;

*

The Honorable Bill Freeman, in his official

*

capacity; The Honorable Wilbur McCurdy,

*

in his official capacity; Mark Duncan,

*

District Attorney for the 8th Circuit Court

*

District, in his official capacity;

*

*

Defendants.

*

AMENDED CLASS ACTION COMPLAINT

Case 3:14-cv-00745-HTW-LRA Document 39 Filed 12/12/14 Page 2 of 26
INTRODUCTION 1. Plaintiff Octavious Burks is an unindicted felony arrestee who, at the time this suit was filed originally on September 23, 2014, had been held in the Scott County Detention Center without counsel since November 18, 2013. Plaintiff Joshua Bassett is a felony arrestee who, at the time this suit was filed originally on September 23, 2014, had been held in the Scott County Detention Center without counsel and without indictment since January 16, 2014. They bring this class action suit under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been indefinitely detained without individualized bail hearings in Scott County and who have been indefinitely denied counsel throughout the Eighth Circuit Court District. 2. As class representatives, Plaintiffs seek, for themselves and those similarly situated, declaratory relief to end and remedy Defendants’ unconstitutional policies, which violate Plaintiffs’ Sixth and Fourteenth Amendment rights to the assistance of counsel, their Sixth Amendment rights to a speedy trial, their Fourteenth Amendment rights against excessive and punitive pre-indictment detention, and their Fourteenth Amendment rights to an individualized bail hearing and determination. 3. Individually, Plaintiffs seek for themselves money damages against Defendant Scott County to compensate them for the months Plaintiffs wrongfully spent in jail awaiting indictment due directly to Scott County’s unconstitutional customs and policies, which violate Plaintiffs’ Sixth and Fourteenth Amendment rights to the assistance of counsel and their Fourteenth Amendment rights to an individualized bail hearing and determination.
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JURISDICTION AND VENUE 4. Plaintiffs’ claims arise under the Constitution and laws of the United States. This Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). 5. This Court has the authority to grant declaratory relief under 28 U.S.C. §§ 22012202 and Fed. R. Civ. P. 57. The federal rights asserted by Plaintiffs are enforceable under 42 U.S.C. § 1983. 6. Venue is proper in the Southern District of Mississippi under 28 U.S.C. § 1391(e). All Defendants, as well as the Named Plaintiffs and all potential class members, reside in this judicial district. All of the acts and omissions by Defendants giving rise to this action occurred in this judicial district.
PARTIES Named Plaintiffs
7. Named Plaintiff Octavious Burks is a resident of Scott County, Mississippi. 8. On November 18, 2013, Mr. Burks was arrested in Scott County for attempted armed robbery, possession of a weapon by a felon, disorderly conduct, and possession of paraphernalia. 9. Justice Court Judge Bill Freeman conducted Mr. Burks’ initial appearance on November 18, 2013. Mr. Burks was unrepresented at the initial appearance. 10. Mr. Burks has a fundamental constitutional right to bail under the Mississippi Constitution. Nevertheless, on the recommendation of the arresting officer, Judge Freeman set Mr. Burks’ bail at $30,000. Judge Freeman set bail without any individualized hearing or
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consideration of the bail factors required under state or federal law, including ability to afford bail and the appropriateness of nonmonetary bail options.
11. Mr. Burks could not afford this bail amount when it was set, and he continues to be financially unable to pay either the bond as set or any percentage of the bond that would be required for him to secure the bond through a licensed bond company or agent. Moreover, Mr. Burks does not have resources to enable him to post any kind of property bond in the amount of $30,000. Judge Freeman’s order therefore constituted a denial of bail to Mr. Burks.
12. Mr. Burks was subsequently remanded to the Scott County Detention Center in Forest, Mississippi.
13. Mr. Burks has not been indicted by a Scott County grand jury. 14. After the filing of the Complaint, Scott County Sheriff Mike Lee publicly claimed that Plaintiff Burks could have made bail at $5,000. If true, none of the Defendants notified Plaintiff Burks that his bail had been, or could be, reduced from $30,000 to $5,000, and they did not they inform him of when this change occurred. 15. Mr. Burks could have afforded to pay the percentage of a $5,000 bond required to secure such a bond through a licensed bond company or agent. 16. The lowering of Plaintiff Burks’ bond from $30,000 to $5,000, without any hearing, demonstrates that Defendant Freeman arbitrarily set Mr. Burks’ bail at $30,000 in the first instance. 17. On November 18, 2013, the day of his initial appearance in the Scott County Justice Court, Mr. Burks completed an Affidavit of Indigence and Application for Appointment of Felony Indigent Counsel. Under Mississippi law, Plaintiff Burks’s
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submission of the Affidavit of Indigence entitled him to immediate representation by the public defender. Miss. Code Ann. § 25-32-9(1) (“Upon the signing of such affidavit by [the accused person], the public defender shall represent said person unless the right to counsel shall be waived by such person.”).
18. Senior Circuit Judge Marcus Gordon, on behalf of Scott County, did not approve Mr. Burks’ application for counsel until on or about December 19, 2013.
19. Judge Gordon and Scott County have not appointed counsel to represent Mr. Burks. They will not appoint counsel until Mr. Burks is indicted.
20. Had Defendant Scott County provided Plaintiff Burks with an individualized bail hearing and counsel either at or immediately after his initial appearance to conduct bail and preliminary hearings, the Justice Court would have set Mr. Burks bail at $5,000. Mr. Burks would have then secured his release from the Scott County jail and remained at liberty pending the action of the grand jury.
21. This case is not Mr. Burks’ first experience with prolonged detention without counsel in Scott County. On two prior occasions, each for separate felony accusations, Mr. Burks has been held in the Scott County Detention Center without an affordable bail, without counsel, and without indictment.
22. Mr. Burks was first held for nearly 18 months, from August 30, 2009 to February 18, 2011 on suspicion of aggravated assault and disturbing the peace. He was indicted sometime around December, 2010, nearly sixteen months after his arrest. Mr. Burks was released in February, 2011.
23. Mr. Burks was held the second time for nearly a year, from June 18, 2012 to June 7, 2013 for possession of a firearm by a felon. The Sheriff’s office eventually released him
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on his own recognizance without a hearing. Upon information and belief, Mr. Burks has never been indicted on these allegations.
24. All told, Mr. Burks spent over three years in the Scott County jail since August 30, 2009, on three separate charges. He has only been indicted once, he has never been to trial, and he has never been convicted.
25. On September 26, 2014, three days after the filing of this lawsuit, this Court, on the application of the United States Attorney’s Office, entered an order for writ of habeas corpus directing the Scott County jail to deliver Plaintiff Burks to federal custody for an initial appearance in federal court on October 16, 2014.
26. The order followed a federal indictment issued on September 9, 2014, charging Plaintiff Burks with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
27. Neither Plaintiff Burks nor undersigned counsel were aware of the federal indictment prior to this Court’s issuance of the writ.
28. This Court conducted Plaintiff Burks’ initial appearance on his federal charges on October 16, 2014. Mr. Burks was represented by an attorney from the federal public defender’s office.
29. Plaintiff Burks had the opportunity that day to conduct a bail hearing to determine his conditions for release. However, Mr. Burks waived this hearing because his official status as a Scott County inmate rendered a federal detention hearing moot.
30. Plaintiff Burks subsequently pleaded guilty to the indictment on October 21, 2014. His sentencing is currently scheduled for January 26, 2014.
31. Named Plaintiff Joshua Bassett is a resident of Scott County, Mississippi.
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32. Plaintiff Bassett was arrested on January 3, 2014, pursuant to a warrant issued the same day for grand larceny and possession of methamphetamine.
33. Justice Court Judge Bill Freeman conducted Plaintiff Bassett’s initial appearance on January 16, 2014. Mr. Bassett was unrepresented at the initial appearance.
34. Mr. Bassett has a fundamental constitutional right to bail under the Mississippi Constitution. Nevertheless, on the recommendation of the arresting officer, Judge Freeman set Mr. Bassett’s bail at $100,000. Judge Freeman set bail without any individualized hearing or consideration of the bail factors required under state or federal law, including the appropriateness of nonmonetary bail options.
35. Mr. Bassett could not afford this bail amount when it was set, and he continues to be financially unable to pay either the bond as set or any percentage of the bond that would be required for him to secure bond through a licensed bond company or agent. Moreover, Mr. Bassett does not have resources to enable him to post any kind of property bond in the amount of $100,000. Judge Freeman’s order therefore constituted a denial of bail to Mr. Bassett.
36. Mr. Bassett was subsequently remanded to the Scott County Detention Center in Forest, Mississippi.
37. On April 30, 2014, an arrest warrant issued for Mr. Bassett on one allegation of burglary and two allegations of petty larceny.
38. In March or April of 2014, Mr. Bassett completed an Affidavit of Indigence and Application for Appointment of Felony Indigent Counsel.
39. Under Mississippi law, Plaintiff Bassett’s submission of the Affidavit of Indigence entitled him to immediate representation by the public defender. Miss. Code Ann.
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§ 25-32-9(1) (“Upon the signing of such affidavit by [the accused person], the public defender shall represent said person unless the right to counsel shall be waived by such person.”).
40. Senior Circuit Judge Marcus Gordon did not approve Mr. Bassett’s application for counsel on or about May 21, 2014.
41. Scott County and Judge Gordon nonetheless did not formally appointed counsel to represent Mr. Bassett. They refused to appoint counsel until Mr. Bassett was indicted.
42. On September 25, 2014, two days after the filing of the original Complaint, Sheriff Lee released Plaintiff Bassett from the Scott County jail on a recognizance bond.
43. Defendant Lee released Plaintiff Bassett on the recommendation of Defendant District Attorney Gordon that Plaintiff Bassett be released if Scott County authorities determined that Mr. Bassett was not a flight risk or a danger to the community. Chris Allen Baker, ACLU files lawsuit against Scott County, Scott County Times, Oct. 1, 2014.
44. Plaintiff Bassett’s release on his own recognizance demonstrates that Defendant Freeman arbitrarily set Mr. Bassett’s bail at $100,000 in the first instance.
45. Had Defendant Scott County provided Plaintiff Bassett with an individualized bail hearing and counsel either at or immediately after his initial appearance to conduct the bail hearing, Mr. Bassett could have secured a recognizance bond soon after his arrest and remained at liberty pending the action of the grand jury.
46. Plaintiff Bassett was not indicted on the felony charges until December 4, 2014. He was not detained following indictment.
Defendants
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47. Defendant Scott County is one of four counties in the Eighth Circuit Court District of Mississippi. The Mississippi Constitution and state law delegates to Scott County the State’s Sixth and Fourteenth Amendment obligation to provide attorneys to arrestees who request and cannot afford them. See, e.g., Miss. Const. art., 14, § 261; Miss. Code Ann. § 2532-1; Miss. Code Ann. § 99-15-17.
48. To fulfill this duty, Scott County, through its Board of Supervisors and pursuant to Miss. Code Ann. § 19-3-69, has entered a Contract for Employment of Felony Indigent Counsel (“the Contract”) with the circuit court, the Board of Supervisors of the other three counties in the Eighth Circuit, and four private attorneys.
49. The Contract obligates the county to provide a public defender to represent indigent felony arrestees in preliminary hearings in the Justice and Municipal Courts. The Named Plaintiffs and putative class members are intended third-party beneficiaries of this Contract.
50. Scott County nonetheless enforces a custom and policy of not providing counsel to indigent felony arrestees until they have been indicted.
51. Defendant the Honorable Marcus D. Gordon is the senior circuit judge for the Eighth Circuit Court District of Mississippi, located in Philadelphia, Mississippi and comprised of Leake, Neshoba, Newton, and Scott Counties. He is sued only in his official capacity.
52. Defendant Gordon is a signatory to the Contract for Employment of Felony Indigent Counsel on behalf of the Eighth Circuit. Under the contract and by custom, Defendant Gordon approves or disapproves the applications of individuals seeking appointed counsel due to indigence.
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53. Under the contract and by custom, Defendant Gordon sets the appointment of counsel policies for all counties in the Eighth Circuit Court District, including Defendant Scott County. Judge Gordon’s and the counties’ uniform policy is to delay appointing counsel to eligible, indigent arrestees until they have been indicted, although the Contract and state law requires the counties to provide indigent counsel to individuals prior to indictment to conduct preliminary hearings.
54. Defendant Gordon is charged with impaneling grand juries in the Eighth Circuit District Court. MS R. Unif. Cir. and Cty. Ct. Rule 7.02. In Scott County, he impanels the grand jury three times per year.
55. Defendants Bill Freeman and Wilbur McCurdy are Justice Court judges for Defendant Scott County. In felony cases prior to indictment, they are responsible for conducting initial appearances and preliminary hearings, as well as for setting the conditions of release for arrestees. They are sued only in their official capacities.
56. Defendant Mark Duncan is the District Attorney for the Eighth Circuit District of Mississippi. His office is responsible for prosecuting felony cases in the District, including representing the state before the grand jury. He is sued solely in his official capacity.
FACTS 57. The Mississippi Constitution guarantees that the State may not formally proceed with a felony prosecution unless it first secures an indictment against the accused from a grand jury. Miss. Const. art. 3, § 27. 58. The State of Mississippi does not impose a limit on either the length of time a district attorney has to present a felony case to the grand jury for indictment, or on the length of time a felony arrestee may be held in jail without a valid indictment.
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59. Thus, although those accused of a felony have a state constitutional right to an indictment before they may be formally prosecuted, an arrestee may spend an indefinite amount of time detained on a felony accusation prior to indictment.
60. Scott County’s justice court judges increase the likelihood of indefinite detention prior to indictment by setting bail in arbitrary amounts, without individualized consideration of the bail factors required under state and federal law, including a defendant’s ability to afford bail and the propriety of nonmonetary bail.
61. As a result of these practices by the Justice Court judges, felony arrestees in Scott County are routinely detained prior to indictment simply because they are too poor to afford bail.
62. The scarcity of grand jury panels further exacerbates the risk of indefinite preindictment detention in Scott County.
63. Defendant Gordon impanels the Scott County grand jury three times per year, typically in April, July/August, and November/December. The grand jury is discharged after no more than thirty days’ service. Outside of these three grand jury terms, there is no continuous session of the Scott County grand jury.
64. Thus, depending on the timing of the arrest, a detained, felony arrestee may wait three to five months to learn if he has been indicted. Each time the District Attorney’s office fails to present an arrestee’s case to the grand jury potentially adds an additional three to five months to the length of detention.
65. The policies and practices of the District Attorney’s office also contribute significantly to the incidence of indefinite pre-indictment detention in Scott County.
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66. Specifically, the District Attorney’s office does not regularly monitor the progress of law enforcement investigations to avoid delay in the preparation of cases for the grand jury. The District Attorney’s office instead has a general policy of not reviewing most felony cases until the investigating law enforcement office completes its investigation and informs the District Attorney that the case is ready for grand jury presentment.
67. Exacerbating the problem of delayed indictment, indigent arrestees awaiting indictment in Scott County are uniformly denied the assistance of counsel.
68. Pursuant to Defendant Gordon’s assignment of counsel policies for the counties constituting the Eighth Circuit, an indigent accused of a felony will not be appointed meaningful, continuous counsel unless and until the arrestee is indicted.
69. The policy stems from Judge Gordon’s view that the Circuit Court lacks jurisdiction to appoint counsel for arrestees who request a preliminary hearing. Campbell Robertson, In a Mississippi Jail, Convictions and Counsel Appear Optional, N.Y. Times, Sept. 25, 2014, at A15.
70. Judge Gordon also stated his belief that appointing counsel prior to indictment would be a waste of resources. Id. (“The reason is, that public defender would go out and spend his time and money and cost the county money in investigating the matter . . . . And then sometimes, the defendant is not indicted by the grand jury. So I wait until he’s been indicted.”).
71. Because a felony arrestee may wait an indefinite amount of time prior to indictment, the amount of time an indigent felony arrestee may be denied the assistance of counsel prior to indictment is also indefinite.
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72. This systemic denial of counsel is calamitous for those accused of felony offenses in the Eighth Circuit Court District.
73. An arrestee’s right to counsel attaches at the initial appearance, and thereafter counsel must be provided in time for that attorney to provide meaningful representation at any subsequent “critical phase” of the criminal proceedings. Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 212-13 (2008).
74. Unindicted felony arrestees do not have attorneys to represent them at the initial appearance, a critical stage of the criminal proceedings in the Eighth District, where a defendant must argue for release or reasonable bail, or face an indefinite period of detention awaiting indictment.
75. Unindicted felony arrestees also have no attorney to protect their right to a preliminary hearing, despite the fact that the preliminary hearing is undeniably a critical stage of Mississippi criminal proceedings at which indigent arrestees are entitled to counsel. McHale v. State, 284 So. 2d 42, 44 (Miss. 1973) (citing Coleman v. Alabama, 399 U.S. 1 (1970)).
76. An arrestee has the right in a preliminary hearing to discover evidence, to call witnesses on her behalf, and to cross examine the state’s witnesses. Mayfield v. State, 612 So. 2d 1120, 1129 (Miss. 1992).
77. If the court finds there is no probable cause, it must release the arrestee pending the action of the grand jury. MS R. Unif. Cir. and Cty. Ct. Rule 6.04. Should the court find probable cause, it may review the bail determination and set new conditions for release. Id.
78. Felony arrestees held in custody in Mississippi have an absolute right to request and to receive a preliminary hearing to challenge probable cause for the arrest prior to
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indictment. MS R. Unif. Cir. and Cty. Ct. Rules 6.04, 6.05. However, an indicted defendant is not entitled to a preliminary hearing. Id.
79. The Mississippi Attorney General has twice announced that indigent arrestees should be appointed counsel prior to indictment to conduct preliminary hearings and to begin continuous representation. See MS AG Op., Miller (March 27, 2009) (citing MS AG Op., Rushing (March 24, 1993)).
80. However, according to Judge Gordon, an unindicted arrestee desiring a preliminary hearing “can represent himself, or he can employ an attorney.” Robertson, supra, at A15.
81. The result of Defendant Gordon’s and the counties of the Eighth Circuit’s custom and policy is that unindicted, indigent arrestees, who are entitled to appointed counsel for a preliminary hearing under the Contract, state law, and federal law, receive neither counsel nor a preliminary hearing.
82. The arrestee also does not have an attorney to challenge the bail amount by pursuing a separate civil habeas action or a petition under Rule 9 of the Mississippi Rules of Appellate Procedure.
83. An unindicted arrestee has no advocate actively investigating the facts and law underlying the allegations, preparing a defense strategy, or negotiating a potential resolution with the State.
CLASS ACTION ALLEGATIONS 84. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Named Plaintiffs Burks and Bassett bring this suit on behalf of themselves and all others similarly situated
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who are or will in the future be affected by Defendants’ unconstitutional policies, practices, and customs.
85. The Named Plaintiffs seek to represent three classes of individuals to obtain declaratory and injunctive relief that requires Defendants to comply with the constitutional requirements of the assistance of counsel, a speedy trial, non-punitive pre-indictment detention, and an individualized bail determination.
86. The Named Plaintiffs seek to represent a first class [Class 1] comprised of felony arrestees in the Eighth Circuit Court District who have signed an affidavit of indigence and who have been or will be denied the assistance of counsel until indictment.
87. The Named Plaintiffs seek to represent a second class [Class 2] that consists of felony arrestees in Scott County who have been or will be detained indefinitely prior to indictment.
88. The Named Plaintiffs seek to represent a third class [Class 3] consisting of felony arrestees in Scott County with a right to bail under Mississippi law but who have been or will be denied individualized bail hearings.
89. The classes are so numerous that joinder of all members is impracticable, and, because the classes include future members, the size of all three classes will only grow over time so long as Defendants’ unconstitutional practices persist.
90. There are questions of law and fact common to each class. 91. Common questions of fact for Class 1 include what are Defendant Gordon’s and the Eighth Circuit counties’ policies with respect to appointing counsel for indigent arrestees awaiting indictment and whether he enforces those policies throughout the 8th Circuit Court District.
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92. Common questions of fact for Class 2 include how many individuals accused of felonies are currently in jail in Scott County awaiting indictment; what are the Sheriff’s Office’s policies, practices, and procedures for investigating felonies and handing over cases to the District Attorney for grand jury presentment; and what policies, practices, and procedures does the District Attorney’s office follow with respect to monitoring the cases of individuals detained prior to indictment.
93. Common questions of fact for Class 3 include what types of hearings justice court judges provide in determining bail; what factors, if any, justice court judges use to arrive at bail determinations; and how many felony arrestees eligible for bail are nonetheless detained due to bail amounts they cannot afford.
94. Common questions of law for Class 1 include whether the initial appearance in Mississippi is a critical stage of the criminal prosecution such that the Sixth and Fourteenth Amendments to the United States Constitution require that arrestees in the Eighth Circuit Court District receive meaningful and continuous counsel at the initial appearance; and whether the Sixth and/or Fourteenth Amendments to the United States Constitution guarantee an indefinitely detained, indigent arrestee in the Eighth District the right to meaningful and continuous appointed counsel immediately following the initial appearance and prior to indictment.
95. Common questions of law for Class 2 include whether the indefinite length of time class members risk spending in jail prior to indictment violates, or unduly risks violating, their liberty interests in a speedy trial as protected by the Sixth and Fourteenth Amendments to the United States Constitution; whether the indefinite length of time class members risk spending in jail prior to indictment violates, or unduly risks violating, their
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rights against excessive and punitive detention prior to indictment guaranteed by the Fourteenth Amendment to the United States Constitution; and whether the Sixth Amendment right to a speedy trial or the Fourteenth Amendment right against excessive and punitive detention prior to indictment place a limit on the amount of time the State may detain an individual without bringing formal charges via indictment.
96. Common questions of law for Class 3 include whether putative class members in Scott County who have a right to bail under Mississippi law are entitled to an individualized bail determination under the Fourteenth Amendment to the United States Constitution.
97. The claims or defenses of the Named Plaintiffs are typical of the claims or defenses of the three proposed classes. The constitutional deprivations suffered by Named Plaintiffs are the same as those of putative class members.
98. The Named Plaintiffs and their attorneys will fairly and adequately protect the interests of the classes. The Named Plaintiffs have no interests antagonistic to the proposed classes, and they are represented by attorneys with significant expertise in criminal procedure and complex civil litigation.
99. Named Plaintiffs seek systemic reform in Scott County to eliminate indefinite pre-indictment detention and indefinite denial of counsel. Defendants’ actions and omissions in violation of the federal constitution apply generally within each class; thus, final declaratory and injunctive relief is appropriate for the proposed classes.
CLASS CLAIMS FOR RELIEF Count I: Denial of the Sixth and Fourteenth Amendment Right to Counsel
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100. Defendant the Honorable Marcus D. Gordon, in his official capacity as the Senior Circuit Court Judge of the Eighth Circuit Judicial District, by failing to appoint meaningful, continuous counsel to indigent arrestees accused of felonies either at the initial appearance or immediately after the initial appearance or arrest, and in delaying the appointment of meaningful, continuous counsel until these arrestees have been indicted, thus preventing indigent arrestees from receiving a preliminary hearing, has violated and continues to violate the Sixth and Fourteenth Amendment right to the assistance of counsel of Named Plaintiffs and putative class members in proposed Class 1.
Count II: Denial of Fourteenth Amendment Right to Counsel
101. Named Plaintiffs and putative class members in proposed Class 1 have a federally-, state-, and county-created liberty interest in the appointment of counsel at initial appearance, or immediately after the initial appearance to determine whether to seek and conduct a preliminary hearing and to otherwise represent them prior to indictment. This liberty interest is protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
102. Defendant the Honorable Marcus D. Gordon, in his official capacity as the Senior Circuit Court Judge of the Eighth Circuit Judicial District, by failing to appoint meaningful, continuous counsel to eligible indigent arrestees accused of felonies either at the initial appearance or immediately after the initial appearance or arrest to conduct a preliminary hearing and begin case preparation, and in delaying the appointment of counsel until these arrestees have been indicted, has violated and continues to violate the Fourteenth Amendment due process and equal protection rights to the assistance of counsel of Named Plaintiffs and putative class members in proposed Class 1.
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103. Defendant Gordon’s policy of denying counsel to unindicted, indigent arrestees invidiously discriminates against Named Plaintiffs and the putative Class 1 members by denying them the ability, available to those able to afford private counsel, to request and to receive preliminary hearings, and to otherwise obtain the assistance of counsel during the indefinite pre-indictment period.
Count III: Denial of Sixth and Fourteenth Amendment Right to Speedy Trial
104. Defendants, by their collective policies, practices and procedures described above, have created in Scott County a system of arbitrary, indefinite detention without counsel for unindicted and indigent felony arrestees that deprives or unduly risks depriving Named Plaintiffs and putative class members in proposed Class 2 of their liberty as protected by the Sixth and Fourteenth Amendment right to a speedy trial.
Count IV: Denial of Fourteenth Amendment Right against Excessive Pre-indictment Detention
105. Named Plaintiffs and putative class members in proposed Class 2 have a statecreated liberty interest to be free from prosecution for felony accusations unless the District Attorney first secures an indictment from a grand jury. This state-created liberty interest is protected from arbitrary infringement by the Due Process Clause of the Fourteenth Amendment.
106. Defendants, by their collective policies, customs, and practices described above, arbitrarily deprive Named Plaintiffs and Class 2 members of their liberty interest in a grand jury indictment by creating in Scott County a system of indefinite detention without counsel for unindicted and indigent felony arrestees. This system of indefinite detention violates or creates an undue risk of violating Named Plaintiffs’ and putative class members in proposed
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Class 2’s right against excessive and punitive detention prior to indictment as guaranteed by Fourteenth Amendment’s right to substantive due process.
Count V: Denial of Fourteenth Amendment Right to an Individualized Bail Determination
107. Defendants Scott County, the Honorable Bill Freeman, and the Honorable Wilbur McCurdy implement a custom, policy and practice of arbitrarily setting bail amounts and conditions for release without individualized hearings or consideration of the bail factors required under state and federal law, including a arrestee’s ability to pay and the propriety of nonmonetary bail.
108. Named Plaintiffs and the putative Class 3 members have a fundamental constitutional right to bail under the Mississippi Constitution that creates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Defendants Scott County, Freeman, and McCurdy’s failure to provide individualized bail hearings and determinations therefore violates Named Plaintiffs’ and the putative class members’ rights to due process under the Fourteenth Amendment.
INDIVIDUAL CLAIMS FOR RELIEF
Count I: Denial of Sixth Amendment Right to Counsel
109. Defendant Scott County, by failing to appoint meaningful, continuous counsel to indigent arrestees accused of felonies either at the initial appearance or immediately after the initial appearance or arrest, and in delaying the appointment of meaningful, continuous counsel until these arrestees have been indicted, thus preventing indigent arrestees from receiving a preliminary hearing, has violated the Sixth and Fourteenth Amendment right to the assistance of counsel of Plaintiffs Burks and Bassett.
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110. As a direct and proximal result of Defendant Scott County’s failure to provide Plaintiffs Bassett and Burks’ with counsel, both Plaintiffs were wrongfully detained at the Scott County jail for 8 and 10 months, respectively.
Count II: Denial of Fourteenth Amendment Right to Counsel
111. Plaintiffs Burks and Bassett have a federally-, state- and county-created liberty interest in the appointment of counsel at the initial appearance or immediately after the initial appearance to conduct a preliminary hearing and to otherwise represent them prior to indictment that is protected by the Due Process Clause and Equal Protection Clauses of the Fourteenth Amendment.
112. Defendant Scott County, by failing to appoint meaningful, continuous counsel to indigent arrestees accused of felonies either at the initial appearance or immediately after the initial appearance or arrest to conduct a preliminary hearing and begin case preparation, and in delaying the appointment of counsel until these arrestees have been indicted, has violated Plaintiffs’ Fourteenth Amendment due process and equal protection rights to the assistance of counsel.
113. Defendant Scott County’s policy of denying counsel to unindicted, indigent arrestees invidiously discriminates against Plaintiffs and Bassett by denying them the ability, available to those able to afford private counsel, to request and to receive preliminary hearings, and to otherwise obtain the assistance of counsel during the pre-indictment period.
114. As a direct and proximal result of Defendant Scott County’s failure to provide Plaintiffs Bassett and Burks’ with counsel, both Plaintiffs were wrongfully detained at the Scott County jail for 8 and 10 months, respectively.
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Count III: Denial of Fourteenth Amendment Right to an Individualized Bail Hearing
115. Defendant Scott County, the Honorable Bill Freeman and the Honorable Wilbur McCurdy implement a policy, custom, and practice of arbitrarily setting bail amounts and conditions for release without individualized hearings or consideration of the bail factors required under state and federal law, including an arrestee’s ability to pay and the propriety of nonmonetary bail.
116. Plaintiffs Bassett and Burks have a fundamental constitutional right to bail under the Mississippi Constitution that creates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Scott County’s failure to provide individualized bail hearings and determinations violated Plaintiffs’ rights to due process under the Fourteenth Amendment.
117. As a direct and proximal result of Defendant Scott County’s failure to provide Plaintiffs Bassett and Burks’ with individualized bail hearings, both Plaintiffs were wrongfully detained at the Scott County jail for 8 and 10 months, respectively.
RELIEF REQUESTED WHEREFORE, Named Plaintiffs Burks and Bassett request that this Court: a. Certify the three proposed classes as defined in paragraphs 85-96 above; b. Enter a judgment declaring that Defendant Gordon has violated and is violating Named Plaintiffs’ and the Class 1 members’ right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution by failing to assign meaningful, continuous counsel either within 7 days of arrest, or within a reasonably immediate period of time to allow counsel to request, prepare for, and conduct preliminary and bail hearings;
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c. Enter a judgment declaring that Defendant Gordon has violated and is violating Named Plaintiffs’ and the Class 1 members’ right to counsel under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution by failing to assign meaningful, continuous counsel either within 7 days of arrest, or within a reasonably immediate period of time to allow counsel to request, prepare for, and conduct preliminary and bail hearings;
d. Enter a judgment declaring that Defendant Scott County has violated and is violating the right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution of Plaintiffs Bassett and Burks by failing to by failing to assign counsel within 7 days of their arrests, or within a reasonably immediate period of time to allow counsel to request, prepare for, and conduct preliminary and bail hearings;
e. Enter a judgment declaring that Defendant Scott County violated Plaintiffs Bassett and Burks’s right to counsel under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution by failing to assign them counsel within 7 days of their arrests or within a reasonably immediate period of time to allow counsel to request, prepare for, and conduct preliminary and bail hearings.
f. Enter a judgment declaring that Defendants are violating or unduly risk violating Named Plaintiffs’ and the Class 2 members’ right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution by failing to provide periodic judicial hearings to review and determine the propriety of their continued custody prior to indictment as a matter of right;
g. Enter a judgment declaring that Defendants are violating or unduly risk violating Named Plaintiffs’ and the Class 2 members’ right against excessive and punitive pre-indictment
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detention under the substantive component of the Due Process Clause of Fourteenth Amendment to the United States Constitution by failing to provide periodic judicial hearings to review and determine the propriety of their continued custody prior to indictment as a matter of right; h. Enter a judgment declaring that Defendants Scott County, Freeman, and McCurdy are violating Named Plaintiffs’ and the Class 3 members’ Fourteenth Amendment due process rights to individualized bail determinations; i. Enter a judgment declaring that Defendant Scott County violated Plaintiffs Bassett and Burks’ Fourteenth Amendment due process rights to individualized bail determinations; j. Award damages against Scott County to Plaintiffs Burks and Bassett for the time they spent wrongfully detained at the Scott County jail due directly to Scott County’s failure to provide them with counsel and individualized bail hearings; k. Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988; l. Grant or award any other relief this Court deems just and proper.
This the Twelfth day of December, 2014.
Respectfully submitted, /s/Brandon Buskey Brandon J. Buskey* Ezekiel Edwards* American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 212-284-7364 bbuskey@aclu.org eedwards@aclu.org * Pro Hac Vice
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/s/Charles Irvin Charles Irvin (MS Bar No. 99607) ACLU of Mississippi, Foundation, Inc. 233 East Capital Street Jackson, MS 39201 (601) 3543408 cirvin@aclu-ms.org James Craig (MS Bar No. 7798) Katie Schwartzmann* Roderick and Solange MacArthur Justice
Center 4400 S. Carrollton Avenue New Orleans, LA 70119-6824 504-620-2259 phone jim.craig@macarthurjustice.org katie.schwartzmann@macarthurjustice.org J. Cliff Johnson (MS Bar No. 9383) Roderick and Solange MacArthur Justice
Center P.O. Box 1848 University, MS 38677 662-915-7629 phone cjohnson@macarthurjustice.org
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Case 3:14-cv-00745-HTW-LRA Document 39 Filed 12/12/14 Page 26 of 26 CERTIFICATE OF SERVICE
I hereby certify that on this, the 12th day of December, 2014, the foregoing Amended Complaint was filed with the Clerk of Court using the CM/ECF system which sent notifications to all counsel of record.
s/ Cliff Johnson____________________ J. Cliff Johnson (MS Bar No. 9383) Roderick and Solange MacArthur Justice
Center P.O. Box 1848 University, MS 38677 662-915-7629 phone cjohnson@macarthurjustice.org
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 Case 3:14-cv-00745-HTW-LRA Document 85 Filed 03/27/15 Page 1 of 1

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

OCTAVIOUS BURKS and JOSHUA BASSETT, on behalf of themselves and all others similarly situated

PLAINTIFFS

V.

CIVIL ACTION NO. 3:14-cv-745-HTW-LRA

SCOTT COUNTY, MISSISISPPI; THE HONORABLE MARCUS D. GORDON, in his official capacity; THE HONORABLE BILL FREEMAN, in his official capacity; THE HONORABLE WILBUR MCCURDY, in his official capacity; MARK DUNCAN, District Attorney for the 8th Circuit Court District, in his official capacity

DEFENDANT

ORDER

On March 27, 2015, this court held a motion hearing in the above styled case.

Observing that the defendants’ motions to dismiss [docket nos. 18, 20, 26, and 32] were filed

prior to the plaintiffs’ filing of an amended complaint [docket no. 39], the defendants agreed that

these four motions to dismiss are moot. Accordingly, this court dismisses these motions to

dismiss [docket nos. 18, 20, 26, and 32] as moot.

Also on the docket is an unopposed motion for leave to file excess pages, filed by

defendant Marcus D. Gordon [docket no. 80]. Inasmuch as the motion is unopposed, this court

grants the motion for leave to file excess pages.

SO ORDERED this 27th day of March, 2015.

_s/ Henry T. Wingate______________________ UNITED STATES DISTRICT COURT JUDGE

 
 Case 3:14-cv-00745-HTW-LRA Document 86 Filed 09/30/15 Page 1 of 28

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

OCTAVIOUS BURKS and JOSHUA BASSETT, on behalf of themselves and all others similarly situated

PLAINTIFFS

V.

CIVIL ACTION NO. 3:14-cv-745-HTW-LRA

SCOTT COUNTY, MISSISISPPI; THE HONORABLE MARCUS D. GORDON, in his official capacity; THE HONORABLE BILL FREEMAN, in his official capacity; THE HONORABLE WILBUR MCCURDY, in his official capacity; MARK DUNCAN, District Attorney for the 8th Circuit Court District, in his official capacity

DEFENDANT

ORDER
Before this court are three motions to dismiss filed by the defendants sub judice,
who seek to put an end to the Title 42 U.S.C. § 19831 lawsuit instituted by plaintiffs
Octavious Burks and Joshua Bassett. Defendant Scott County, Mississippi has filed a
motion to dismiss [docket no. 45], to which Judges Bill Freeman and Wilbur McCurdy
have joined [docket no.47]. Similarly, Judges Bill Freeman and Wilbur McCurdy filed
1 Title 42 U.S.C. § 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
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their own motion to dismiss [docket no. 48]. Judge Marcus D. Gordon, then, filed a
motion for judgment on the pleadings [docket no. 53], in which District Attorney Mark
Duncan [docket no. 55] and Judges Bill Freeman and Wilbur McCurdy have joined
[docket no. 70].
These defendants champion a variety of legal theories upon which this court
should dismiss the complaint of plaintiffs Octavious Burks, Joshua Bassett, and the
putative classes they seek to represent. These theories include immunity as provided by the Eleventh Amendment2 to the United States Constitution; abstention under
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); improper filing, since this case should have been filed as a Title 28 U.S.C. § 22413 habeas corpus
petition; prohibition of the claims by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); and unripeness under the Prison Litigation Reform Act4
because the plaintiffs have not exhausted their administrative remedies.
This court is persuaded that, at a minimum, the abstention standard articulated in
Younger v. Harris obligates this court to dismiss the plaintiffs’ requests for declaratory
judgment. This court, though, will retain and stay the plaintiffs’ request for monetary
damages against Scott County. Additionally, because only Octavious Burks’ and
2 U.S. CONST. amend. XI states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 3 Title 28 U.S.C. § 2241(a) states:
Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. 4 Title 42 U.S.C. § 1997e(a) states: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
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Joshua Bassett’s damage claims remain, the motions to certify three classes [docket
nos. 2 and 51] are dismissed as moot. This court’s reasoning is set out below.
I. BACKGROUND
The named plaintiffs sub judice are Octavious Burks (“Burks”) and Joshua
Bassett (“Bassett”). Burks and Bassett, on behalf of themselves and other similarly
situated individuals, seek a declaratory judgment to put an end to Scott County’s
allegedly unconstitutional policies, which they claim violate the rights of pre-indictment
detainees.
A. Burks
Burks is a resident of Scott County, Mississippi (“Scott County”). On November
18, 2013, Burks was arrested in Scott County for attempted armed robbery, possession of a weapon by a felon, disorderly conduct, and possession of paraphernalia5. That
same day, Burks appeared before Scott County Justice Court Judge Bill Freeman (“Judge Freeman”) for an initial appearance.6 Burks, who was unrepresented at the
5 The amended complaint does not specify the kind of paraphernalia. 6 Rule 6.03 of the Mississippi Uniform Rules of Circuit and County Court Practice explains the procedure of an initial appearance:
Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance. Upon the defendant's initial appearance, the judicial officer or other person authorized by statute shall ascertain the defendant's true name and address, and amend the formal charge if necessary to reflect this information. The defendant shall be informed of the charges against him/her and provided with a copy of the complaint. If the arrest has been made without a warrant, the judicial officer shall determine whether there was probable cause for the arrest and note the probable cause determination for the record. If there was no probable cause for the warrantless arrest, the defendant shall be released. The judicial officer shall also advise the defendant of the following:
1. That the defendant is not required to speak and that any statements made may be used against him/her;
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initial appearance before Judge Freeman, was remanded to the custody of the Scott
County Detention Center. Allegedly, on the recommendation of the arresting officer,
Judge Freeman set Burks’ bail at $30,000.00, without conducting an individualized
hearing or considering bail factors, such as ability to afford bail and the appropriateness
of nonmonetary bail options. Burks says he could not afford the $30,000.00 bail, nor
was he able to pay the percentage of bond required by the licensed bond agent. Burks
claims that Judge Freeman’s order constituted a denial of bail.
Also on November 18, 2013, Burks completed an Affidavit of Indigence and
Application of Appointment of Felony Indigent Counsel. Under Miss. Code Ann. § 2532-9(1)7, upon completion of this affidavit, the felony defendant is entitled to
appointment of counsel.
On December 19, 2013, Senior Circuit Court Judge Marcus Gordon (“Judge
Gordon”) approved Burks’ application for counsel, but did not appoint counsel to
represent Burks, saying he would only appoint counsel when Burks was indicted.
2. If the defendant is unrepresented, that the defendant has the right to assistance of an attorney, and that if the defendant is unable to afford an attorney, an attorney will be appointed to represent him/her; 3. That the defendant has the right to communicate with an attorney, family or friends, and that reasonable means will be provided to enable the defendant to do so; 4. Conditions under which the defendant may obtain release, if any; 5. That the defendant has the right to demand a preliminary hearing while the defendant remains in custody. 7 Miss. Code Ann. § 25-32-9(1) states, in its pertinent part: When any person shall be arrested and charged with a felony, a misdemeanor or an act of delinquency, then the arresting authority shall afford such person an opportunity to sign an affidavit stating that such person is an indigent and unable to employ counsel. Upon the signing of such affidavit by such person, the public defender shall represent said person unless the right to counsel be waived by such person.
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Burks avers that this is not his first encounter with prolonged detention in Scott County. Burks says from August 30, 2009 to February 18, 2011, he was held on suspicion of aggravated assault and disturbing the peace. Burks says he was not indicted until December 2010, nearly sixteen months after his arrest. A second time, Burks says he was held from June 18, 2012 to June 7, 2013 for possession of a firearm by a felon. This time, Burks says he was released on his own recognizance without a hearing or indictment. B. Bassett
Bassett, like Burks, is a resident of Scott County. On January 3, 2014, Bassett was arrested pursuant to a warrant issued that same day for grand larceny and possession of methamphetamine.
On January 16, 2014, Bassett appeared before Judge Freeman for his initial appearance. Like Burks, Bassett was not represented by counsel during his initial appearance. Bassett was remanded to the custody of the Scott County Detention Center. Judge Freeman, on the recommendation of the arrested officer, set bail at $100,000.00, without conducting any individualized hearing or considering bail factors, such as ability to pay or the appropriateness of nonmonetary bail options. Bassett claims that he was not able to pay the $100,000.00 bond, nor was he able to pay a percentage of the bond as required by the licensed bond agent.
On April 30, 2014, another arrest warrant was issued for Bassett on the charge of burglary and two charges of petty larceny.
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In March or April of 2014, Bassett completed an Affidavit of Indigence and
Application for Appointment of Felony Indigent Counsel. As explained above, according
to Mississippi law, the filing of this affidavit entitles a felony defendant to representation.
Judge Gordon did not approve Bassett’s application until May 21, 2014. In
addition, Judge Gordon did not immediately appoint counsel after approving the
application, choosing to wait until Bassett was indicted to appoint counsel.
C. Defendants
Judge Freeman and Judge Wilbur McCurdy (“Judge McCurdy”) are Justice Court
Judges for Scott County. They are responsible for conducting initial appearances and
preliminary hearings, as well as setting bail and conditions of release. Plaintiffs claim
that Judge Freeman and Judge McCurdy execute a Scott County custom, policy, and
practice of arbitrarily setting bail amounts without individual bail hearings. Scott County is one of four counties8 located within the Eighth Circuit Court
District of Mississippi. Pursuant to Mississippi law9, Scott County is tasked with paying
the costs of providing a defense attorney to indigent defendants. To comply with
8 Scott County, Leake County, Neshoba County, and Newton County. 9 MISS. CONST. Art., 14, § 261 states: “The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun; and all fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs.” Miss. Code Ann. § 25-32-1 states, in its pertinent part:
Should the board of supervisors of any county or the boards of supervisors of two (2) or more counties in the same circuit court district determine . . . that the county or counties have a sufficient number of indigent defendant cases to establish an office of public defender, the board of supervisors or boards of supervisors are authorized and empowered, in their discretion, to establish the office, provide office space, personnel and funding for the office, and to perform any and all functions necessary for the efficient operation of such an office to the end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases as an alternative to court appointed counsel.
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Mississippi law, the Mississippi counties of Scott, Leake, Neshoba, and Newton have contracted with the Eighth Circuit Court District of Mississippi and four private attorneys to provide public defender services.
Plaintiffs claim that these contracts of employment10 with the four private attorneys obligate Scott County to provide a public defender to represent indigent felony arrestees in preliminary hearings in the Justice and Municipal Courts. Plaintiffs claim that they and the putative class members are the intended third-party beneficiaries of this contract.
Plaintiffs contend that Scott County, however, enforces a custom and policy of not providing counsel to indigent felony arrestees until they have been indicted. Judge Gordon, a senior Circuit Court Judge for the Eight Circuit Court District of Mississippi who approves or disapproves applications for appointed counsel, say plaintiffs, has a policy of delaying the appointment of counsel to eligible, indigent arrestees until they have been indicted. Judge Gordon may have confirmed as much, as he allegedly told the New York Times that he does this because “that public defender would go out and spend his time and money and cost the county money in investigating the matter. . . . And then sometimes, the defendant is not indicted by the grand jury. So I wait until he’s been indicted.” Campbell Roberson, In a Mississippi Jail, Convictions and Counsel Appear Optional, N.Y. Times, Sept. 25, 2014, at A15. Judge Gordon also allegedly told the New York Times that “he did not have the jurisdiction to appoint a public defender at all until a defendant was indicted in his courtroom, even if someone were to request a preliminary hearing or a bail hearing. In those cases, [Judge Gordon] said, a defendant ‘can represent himself, or he can employ an attorney.’” Id.
10 The parties in this case have not provided this court with copies of these contracts. 7

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This delay in the appointment of counsel, say plaintiffs, is exacerbated because Judge Gordon only impanels a Scott County Grand Jury three times a year and, even then, discharges the Grand Jury after no more than thirty days of service. Resultedly, say plaintiffs, a detained felony arrestee must wait months to find out whether the Scott County Grand Jury has issued a true bill. Moreover, the plaintiffs claim that the District Attorney’s office does not review most felony cases until law enforcement has completed its investigation, and, moreover, the District Attorney does not monitor law enforcement investigations to ensure that delay is avoided.
The unconstitutional consequences of the above approach, argue plaintiffs, are the creation and nurturing of a juridical mechanism which requires Scott County indigent arrestees, who cannot afford bail or an attorney, to linger indefinitely in pre-indictment detention. Even pre-indictment indigent arrestees who have qualified for appointment of counsel are caught up in this abyss, which leaves them without an attorney to protect their rights at preliminary hearings, when the court may address probable cause and review bail determinations. D. Filing This Lawsuit
Burks and Bassett filed this lawsuit on September 23, 2014, claiming that defendants violated their Sixth11 and Fourteenth12 Amendment rights (1) to counsel; (2)
11 U.S. CONST. amend. VI states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
12 U.S. CONST. amend. XIV, § 1 states, in its pertinent part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or 8

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to a speedy trial; (3) to individualized bail determinations; and (4) to freedom from excessive pre-indictment detention. Plaintiffs pursue these claims on behalf of themselves and three proposed classes of similarly situated individuals.
Two days after plaintiffs filed this lawsuit, on September 25, 2014, Scott County Sheriff Mike Lee (“Sheriff Lee”) released plaintiff Bassett from the Scott County Detention Center, allegedly on the recommendation of defendant District Attorney Mark Duncan (“Duncan”) that Bassett be released if Scott County authorities determined Bassett was not a flight risk or danger to the community. Freed “on his own recognizance,” that is, without a surety or property bond, Bassett claims that this decision to release him “on his own recognizance” demonstrates that Judge Freeman arbitrarily had set his bail at $100,000.00. Had he received an individualized bail hearing to begin with, suggests Bassett, he would not have lingered in jail for so many months after his initial appearance.
On September 26, 2014, three days after filing this lawsuit, by an order from the United States District Court for the Southern District of Mississippi, Scott County delivered Burks into federal custody on a charge of violating Title 18 U.S.C. § 922(h)(1),13 that is, being a felon in possession of a firearm. Burks and his attorney claim they were unaware of the federal indictment prior to the United States District Court’s issuance of the order. Burks pleaded guilty to the federal charge on October 16,
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws 13 Title 18 U.S.C. § 922(h)(1) states: It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment . . . to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce.
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2014, and his sentencing was scheduled for January 26, 2015, at which time he was sentenced to fifty-one months in the custody of the United States Bureau of Prisons. As a consequence, he is no longer a pre-indictment detainee in the Scott County Detention Center.
On December 4, 2014, the Scott County Grand Jury indicted Bassett on the methamphetamine charge.14 As of this court’s motion hearing on March 27, 2015, a Scott County Grand Jury had not yet indicted Bassett on the larceny and burglary charges. This court is not aware whether Burks has been indicted by the Scott County Grand Jury.
On December 12, 2014, plaintiffs filed an amended complaint. Therein, Burks and Bassett sought to bring a class action suit under Title 42 U.S.C. § 198315 on behalf of themselves and other similarly situated individuals who have been, and will be, detained indefinitely without individualized bail hearings and who have been, and will be, detained indefinitely without the benefit of counsel. Plaintiffs still claim violations of their Sixth and Fourteenth Amendment rights to due process, assistance of counsel, a speedy trial, and individualized bail hearings.
On behalf of themselves, Burks and Bassett allege four claims. Count I alleges that Judge Gordon violated their Sixth and Fourteenth Amendment rights to assistance of counsel by failing to appoint meaningful and continuous counsel and by delaying appointment of counsel until indictment.
14 On February 15, 2015, Bassett pled guilty to the methamphetamine charge, and he has been accepted into the Drug Court Program. 15 Supra footnote 1.
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Count II alleges that the plaintiffs have a liberty interest in appointment of counsel at the initial appearance, or immediately thereafter, to determine whether to seek a preliminary hearing prior to indictment. Burks and Bassett say that Judge Gordon denied them this liberty interest, which is protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, when he failed to appoint them counsel between their initial appearances and indictments.
Count III alleges that the defendants, by their collective policies, practices, and procedures, have created in Scott County a system of arbitrary, indefinite detention without counsel for unindicted and indigent felony arrestees, like themselves. This system, claim Burks and Bassett, deprives them of their Sixth and Fourteenth Amendment rights to a speedy trial.
Count IV alleges that the plaintiffs have a liberty interest in being free from prosecution for felony accusations in the absence of a Grand Jury indictment. Plaintiffs contend that the defendants’ collective policies, customs, and practices arbitrarily deprived Burks and Bassett of their liberty interest in a Grand Jury indictment by creating a system of indefinite detention without counsel. This system, say Burks and Bassett, violates their Fourteenth Amendment right to substantive due process and the right to be free of excessive and punitive detention prior to indictment.
As to the class action, Burks and Bassett propose the creation of three classes. Class 1 is to consist of felony arrestees in the Eighth Circuit Court District of Mississippi who have signed an affidavit of indigence and who have been, or will be, denied the assistance of counsel until indictment. The common issue of fact for Class 1 is the nature of Judge Gordon’s and the Eighth Circuit Court District of Mississippi’s policies
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with respect to appointing counsel for indigent arrestees awaiting indictment. Common issues of law for Class 1 include whether the initial appearance in Mississippi is a critical stage, requiring representation of counsel; and whether the Sixth and/or Fourteenth Amendments guarantee an indefinitely detained, indigent arrestee the right to meaningful and continuous appointed counsel immediately following the initial appearance and prior to indictment.
Class 2 is to consist of felony arrestees in Scott County who have been, or will be, detained indefinitely prior to indictment. The common issues of fact for Class 2 include how many individuals accused of felonies are currently in jail in Scott County awaiting indictment; what are the Scott County Sheriff’s Office’s policies, practices, and procedures for investigating and handing over cases to the District Attorney for presentment to a Grand Jury; and what policies, practices, and procedures does the District Attorney’s office follow with respect to monitoring the cases of individuals detained prior to indictment. The common issues of law for Class 2 include whether the indefinite length of time that class members spend in jail prior to indictment violates their liberty interests in a speedy trial as protected by the Sixth and Fourteenth Amendments; whether the indefinite length of time that class members spend in jail violates their rights against excessive and punitive detention prior to indictment, guaranteed by the Fourteenth Amendment; and whether the Sixth Amendment right to speedy trial or the Fourteenth Amendment right against excessive and punitive detention prior to indictment place a limit on the amount of time the state may detain an individual without bringing formal charges by an indictment.
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Class 3 is to consist of felony arrestees in Scott County with a right to bail under Mississippi law, but who have been, or will be, denied individualized bail hearings. The common issues of fact for Class 3 include the types of hearings Justice Court Judges provide to determine bail; what factors Justice Court Judges use to arrive at bail determinations; and how many felony arrestees eligible for bail are detained due to bail amounts they cannot afford. The common issue of law for Class 3 is whether the putative class members, who are entitled to bail under Mississippi law, are entitled to an individualized bail determination under the Fourteenth Amendment.
As a remedy for these alleged constitutional violations, plaintiffs ask this court to issue a declaratory judgment announcing that defendants’ policies are, indeed, violative of the United States Constitution. Additionally, Burks and Bassett ask this court to award them monetary damages against Scott County for the time they spent wrongfully detained at the Scott County jail.
II. JURISDICTION This court has subject-matter jurisdiction over this lawsuit pursuant to Title 28 U.S.C. § 133116, commonly referred to as federal question jurisdiction. “To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.” Gully v. First Nat’l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The plaintiffs’ assert denial of various rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, including: the right to counsel; the right to a speedy trial; a right to individualized bail determinations; and freedom from
16 Title 28 U.S.C. § 1331 states: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
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excessive pre-indictment detention. As the plaintiffs rely upon federal law, this court has subject-matter jurisdiction to hear those claims. Id.
III. STANDARDS OF REVIEW Before the court are three motions by which defendants hope to dispose of this lawsuit: (1) a motion to dismiss17 filed by Scott County [docket no. 45]; (2) a Rule 12(b)(6)18 motion to dismiss filed by Judge Freeman and Judge McCurdy [docket no. 47]; and a Rule 12(c)19 motion for judgment on the pleadings filed by Judge Gordon [docket no. 53]. District Attorney Duncan joined [docket no. 55] in Judge Gordon’s motion for judgment on the pleadings. Similarly, Judge Freeman and Judge McCurdy joined in Scott County’s motion to dismiss. The standard for addressing a Rule 12(c) motion for judgment on the pleadings, is the same as that used to address a motion to dismiss for failure to state a claim under Rule 12(b)(6). In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 209-10 (5th Cir.2010). To survive a motion to dismissed waged under Rule 12(b)(6), the plaintiffs’ complaint must articulate the grounds for entitlement to relief—including factual allegations that, when assumed to be true, "raise a right to relief above the speculative level." Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
17 Although styled as a “motion to dismiss,” Scott County actually requests relief under Rule 12(c) of the Federal Rules of Civil Procedure, that is, “judgment on the pleadings.” 18 Rule 12(b)(6) of the Federal Rules of Civil Procedure states:
“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . failure to state a claim upon which relief can be granted.” 19 Rule 12(c) of the Federal Rules of Civil Procedure states: “After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.”
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Twombly, 550 U.S. 544, 553-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint must allege "sufficient factual matter . . . to state a claim that is plausible on its face." Id. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 556. A court should not accept "threadbare recitals of a cause of action's elements, supported by mere conclusory statements," which "do not permit the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
IV. YOUNGER V. HARRIS AND ABSTENTION As stated earlier, the defendants have articulated numerous alternative arguments supporting dismissal of this lawsuit. Rather than address each argument in turn, this court is persuaded that at least one argument, for abstention in accordance with Younger v. Harris, 401 U.S. 37, hits its mark and obligates this court to grant dismissal on all of the plaintiffs’ claims, save the claim for monetary damages against Scott County. All of the defendants have asserted in their respective briefs that this court should abstain in accordance with the United States Supreme Court’s ruling in Younger v. Harris, 401 U.S. 37. In Younger, John Harris (“Harris”) filed suit in the United States District Court for the Central District of California against Evelle Younger (“Younger”), a California state prosecutor who had indicted Harris for violation of the California Criminal Syndicalism Act because Harris had distributed “leaflets advocating change in industrial ownership through political action.” Id. at 38-39, 60.
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The complaint argued that Younger’s attempt to prosecute Harris under the
California Criminal Syndicalism Act violated Harris’ rights of freedom of speech and freedom of the press, guaranteed by the First Amendment20 to the United States
Constitution. Id. at 39-40. In a three-judge panel, convened pursuant to Title 28 U.S.C. § 228421, the United States District Court agreed with Harris that the California Criminal
Syndicalism Act violated the United States Constitution. Id. at 40. Invoking Title 28 U.S.C. § 125322, Younger directly appealed to the United States
Supreme Court. Id. The Supreme Court, although noting the questionable
constitutionality of California Criminal Syndicalism Act following the ruling in
Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (finding
Ohio’s Criminal Syndicalism Act in violation of the Constitution), reversed the United
States District Court’s determination:
[T]he judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.
Id. at 41.
20 U.S. CONST. amend. I states, in its pertinent part: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” 21 Title 28 U.S.C. § 2284(a) states:
A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body. 22 Title 28 U.S.C. § 1253 states: Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.
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Acknowledging a “longstanding public policy against federal court interference with state court proceedings” and the notions of “comity” and “federalism,” the Supreme Court formulated a type of federal court abstention that now is known as “Younger abstention.” Id. at 43-45.
The test for determining whether to apply Younger abstention is three-pronged. First, the court must determine whether a state proceeding is ongoing with which a federal proceeding might interfere. Bice v. La. Public Defender Bd., 677 F.3d 712, 716 (5th Cir. 2012). Then, the court must determine whether the state has an important interest in regulating the subject matter of the claim. Id. Finally, the federal court must ascertain whether adequate opportunities exist in the state court proceedings to raise the constitutional challenges. Id. If the federal court answers in the affirmative to each prong of the test, then the federal court must abstain. See La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1489-91 (5th Cir. 1995). A. Ongoing Proceeding
Defendants argue that Burks and Bassett, as well as the other purported members of the three classes, have ongoing proceedings in state court. This circumstance, say defendants, weighs in favor of abstention. Plaintiffs, though, contend that no proceedings are pending in state court because Burks and Bassett, at the filing of this lawsuit, along with the putative class members, were waiting in jail for Scott County to send their cases to a Grand Jury. In other words, plaintiffs argue that their cases are not pending but, rather, indefinitely stalled. Thus, say the plaintiffs, a determination in this court would not interfere with the state court prosecution.
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In Rickhoff v. Willing, 457 Fed.Appx 355, 359 (5th Cir. 2012), “[t]he relevant inquiry in determining that the state judicial proceeding was ‘ongoing’ is whether the state proceeding was pending at the time the federal action was instituted.” (emphasis added). The United States Supreme Court has acknowledged that upon indictment the state court proceeding is ongoing. See, e.g., Younger, 401 U.S. at 38. The Supreme Court, though, has not opined on whether a proceeding may be “ongoing” or “pending” prior to indictment.
Some courts have concluded that prosecution is ongoing at the time of arrest. See, e.g., Eve Productions, Inc. v. Shannon, 439 F.2d 1073, 1073-74 (8th Cir. 1971) (refusing to intervene following an arrest, but before indictment, because such would interfere with an ongoing state prosecution). Other courts, such as the United States District Court for the Western District of Louisiana, have rejected the suggestion that proceedings become ongoing or pending at the time of arrest. Langley v. Ryder, 602 F.Supp. 335, 339 (W.D. La. 1985) (finding that the arrest did not commence state criminal proceedings because no proceedings of substance on the merits had occurred).
The question before this court, then, is whether proceedings had commenced prior to indictment, but after a judicial probable cause determination. The parties sub judice have suggested that the law governing the attachment of counsel might assist this court. In Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 202-03, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), addressing when the right to counsel attaches, the United States Supreme Court explained that “adversary judicial proceedings” begin when the
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criminal defendant is brought before a judicial officer, informed of the charges against
him, and the judicial officer imposes restrictions on the criminal defendant’s liberty. Id.
Similarly, Mississippi law states that prosecution is commenced “by the issuance
of a warrant, or by binding over or recognizing the offender to compel his appearance to
answer the offense, as well as by indictment or affidavit.” Miss. Code Ann. § 99-1-7.
The Mississippi Supreme Court has announced that “one ‘bound over’ to await the
action of the next grand jury” has reached the accusatory or adversarial point at which
prosecution is considered to be “commenced.” Howell v. State, 163 So.3d 240, (Miss.
2014).
Burks, Bassett, and the purported classes they represent had received their initial
appearances and then were placed in jail with large bails, all without the appointment of counsel.23 Under Mississippi law, during the initial appearance, a judicial officer informs
the criminal defendant of the charges against him and, if the arrest was made without a
warrant, makes a determination of whether probable cause existed for the arrest. Miss. R. Unif. Cir. & Cnty. Ct. 6.0324. Accordingly, this court is persuaded that the prosecution
23 As described earlier in the background section, events subsequent to filing this lawsuit may have rendered the named plaintiffs’ claims moot; namely, Burks is in federal custody and Bassett has been released without bail and indicted on some of the charges. Ordinarily, the named respondents of a class action would have to show they are still in custody awaiting trial at the time a United States District Court certifies the class. Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In Gerstein, though, the United States Supreme Court opined that “[p]retrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” Moreover, the Supreme Court was persuaded that pretrial detention fell within the “capable of repetition, yet evading review” exception to mootness, which permits a court to review a complaint regarding a controversy that may no longer be live, but is capable of occurring again. Id. Therefore, the Supreme Court determined that even if pretrial detention had ceased for the named defendants, detention was capable of occurring again and, due to the class action nature of the lawsuit, “the constant existence of a class of persons suffering the deprivation is certain.” Id. 24 Supra footnote 6.
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sub judice “commenced,” and thereafter was pending or ongoing, at the initial appearance.
The Younger abstention test, though, does not ask merely whether a state court proceeding is ongoing, but whether a parallel federal proceeding might interfere with that ongoing state court proceeding. Bice, 677 F.3d at 717. The United States Court of Appeals for the Fifth Circuit does not require interference to be “direct” to offend Younger. Id. If granting the requested relief “would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly,” then the interference element of the test is satisfied. Id. Courts are directed to “be practical in assessing the most likely result of granting plaintiff's requested relief” and to look at the practical effect of granting the requested relief. Id.
The case sub judice is similar to Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992). In Luckey, plaintiffs filed a class action lawsuit on behalf of individuals “adversely affected by the unconstitutional practices of the indigent defense system within Georgia.” Id. at 676. Plaintiffs complained that the State of Georgia’s indigent defense system was woefully inadequate and requested a declaratory judgment from the United States District Court requiring Georgia, inter alia, to furnish counsel during probable cause determinations and critical stages. Id. Plaintiffs argued that such a declaration would not offend Younger because they sought to address systemic issues, not “to contest any criminal conviction, nor to restrain any criminal prosecution.” Id. at 677. The United States Court of Appeals Eleventh Circuit found this argument unpersuasive, stating “a decree of the sort requested by the plaintiffs would, inevitably, interfere with
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every state criminal proceeding,” because issuing such an order would restrain every indigent prosecution until these systemic improvements were in place. Id.
Also similar is the case of Pompey v. Broward Cnty., 95 F.3d 1543 (11th Cir. 1996). In that case, the plaintiffs, who were indigent fathers with past-due child support obligations, filed a class action lawsuit complaining of unconstitutional procedures during “Daddy Roundups” and the cursory contempt hearings that followed. Id. at 1544. According to the plaintiffs, the county would haul indigent parents into court on contempt charges for falling behind on child support payments. Id. at 1545. The plaintiffs also said that the court would not inform the parents of their right to court-appointed counsel and actively dissuade the parents from requesting court-appointed counsel. Id. Moreover, plaintiffs complained that the court would spend only about five minutes on any given case and would fail to make inquiries into the parents’ ability to pay child support before giving the parents’ the choice of paying the full amount in arrears or going to jail. Id.
The court, though, dismissed plaintiff’s request for injunctive and declaratory relief on Younger abstention grounds. Id. at 1549. The court observed that the plaintiffs wanted a federal court to order the state court to inform every parent of his or her right to counsel, appoint counsel, and thoroughly inquire into a parent’s ability to pay; that is, that a federal court would “force the state judges to follow what plaintiffs perceived to be the state’s own laws and procedures.” Id. The United States Court of Appeals for the Eleventh Circuit was particularly concerned with how it could frame “a useful injunction” without offending principals of comity and federalism. Id. Finding that such an injunction would be unwise, the federal court concluded that an injunction of the type
21

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plaintiffs sought would be an insult to the state judges and a “potentially mischievous command to these officials to avoid committing any errors.” Id. at 1549-50. Moreover, if a state judge failed to comply with the federal court injunction, an aggrieved parent could petition to the federal courts for a remedy, thus further entangling the federal courts in the activities of state courts. Id. at 1550. Younger abstention, perceived the United States Court of Appeals Eleventh Circuit, was created to avoid such conflict and entanglement. Id.
As the above cases suggest, if this court were to issue the declaratory judgment plaintiffs desire—that the defendants have violated the Sixth and Fourteenth Amendment rights of Burks, Basset, and the putative classes by (1) failing to appoint an attorney to qualifying indigent detainees; (2) denying speedy trials; (3) detaining plaintiffs for excessive periods before trial; and (4) failing to provide individualized bail hearings—this court necessarily would be interfering with the ongoing state court proceedings, usurping the state court’s autonomy and replacing a state court judge’s determination with our own. As the Supreme Court in O’Shea v. Littleton, 414 U.S. 488, 500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), explained, an injunction of this type would result in “an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris, supra, and related cases sought to prevent.” Accordingly, this court finds that the first prong of the Younger abstention test is satisfied. B. Important State Interests
This court now turns to the second prong of the Younger abstention test: whether the proceeding represents an important state interest. Parties do not dispute
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that the State of Mississippi has an important state interest in prosecuting its own criminal laws. See Milone v. Flowers, 758 F.Supp.2d 362, 365 (S.D. Miss. 2010). Accordingly, this court is persuaded that the second prong of the Younger abstention test is satisfied. C. Adequate Opportunity in State Court
The third and final prong of the Younger abstention test requires this court to address whether the plaintiffs would have an adequate opportunity to raise their constitutional issues in the state court forum. As an initial matter, this is not a case of absolute pre-emption; state courts are as capable of addressing violations of the Sixth and Fourteenth Amendments as federal courts. See, e.g., Paz v. City of Houston, Tex., 748 F.Supp. 480, 484 (S.D. Tex. 1990).
Plaintiffs have argued that their claims are of such a systematic nature that they cannot be addressed in any one detainee’s criminal prosecution. Additionally, plaintiffs contend that the temporary nature of a pre-indictment detainee makes it difficult for them to challenge their detention in state court; that is, as soon as they are indicted, they lose their right to a preliminary hearing and a redetermination of bail. See Miss. R. Unif. Cir. & Cnty. Ct. 6.05 (“A defendant who has been indicted by a grand jury shall not be entitled to a preliminary hearing”). In support of their contention that state court remedies would be inadequate, plaintiffs point to the United States Supreme Court’s decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
The plaintiffs in Gerstein were Florida prisoners, who were detained following arrest and were not permitted a probable cause hearing or arraignment until a month or more after arrest. Id. at 106. Pertinent to our case sub judice is footnote 9:
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The District Court correctly held that respondents' claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. Id. at 108 n. 9 (emphasis added). The Supreme Court later clarified this footnote in Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), explaining that “[a]ppellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings, and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.” Thus, it is not necessary that the constitutional claims be a “defense” to prosecution, only that the plaintiffs be able to raise the issues in the context of the state court proceeding. This court is persuaded that the plaintiffs sub judice would be able to raise their complaints adequately in their respective state court proceedings. Firstly, unlike the plaintiffs in Gerstein, who had no contact with the court prior to an arraignment or preliminary hearing a month or more after their respective arrests, the plaintiffs here are entitled to an initial appearance, with a probable cause determination, within forty-eight hours of arrest. See Miss. R. Unif. Cir. & Cnty. Ct. 6.03.25 At that point, during the initial appearance, plaintiffs could raise their concerns. See, e.g., Pompey, 95 F.3d at 1551 (observing that the plaintiffs could have raised their claims during their initial hearings and, if unsuccessful, could have appealed).
25 Supra footnote 6.
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Even after the initial hearing, plaintiffs could have petitioned the court for their
requested relief. For example, upon being approved for indigent counsel, plaintiffs
could petition the court for appointment of counsel or appeal any denial thereof. See,
e.g., Smith v. State, 942 So.2d 308, 319-20 (Miss. 2006) (considering whether denial of
counsel prior to a blood test violated the criminal defendant’s rights). Plaintiffs also
could request individualized bail hearings and/or appeal a bail determination. Rule 9(a)
of the Miss. R. App. Proc.26 As to plaintiffs’ complaints about lengthy pre-trial delay,
Mississippi allows a criminal defendant to file a motion for dismissal of an indictment on
due process grounds if the pre-indictment delay was intentional and prejudicial. Beal v.
State 118 So.3d 162, (Miss. Ct. App. 2010). Additionally, the right to a speedy trial
“attaches at the time of formal indictment or information or arrest—whichever occurs
26 Rule 9(a) of the Mississippi Rules of Appellate Procedure states: Release Prior to a Judgment of Conviction. A petition challenging an order refusing or imposing conditions of release shall be heard promptly by the Supreme Court or the Court of Appeals if the case has been assigned to the Court of Appeals. Upon entry of an order refusing or imposing conditions of release, the trial court shall state in writing the reasons for the action taken. Where the petition challenges an order denying bail or setting bail which the challenging party contends is excessive, the challenging party shall file contemporaneously with the petition such papers, affidavits, and portions of the record as will show: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence; (3) family ties of the defendant; (4) defendant's employment status; (5) defendant's financial resources; (6) defendant's character and mental condition; (7) defendant's length of residence in the community; (8) defendant's record of prior convictions; (9) defendant's record of appearances or flight; (10) a copy of the trial court's order regarding bail; (11) where available, a transcript of the trial court proceedings regarding bail. If the party is unable to obtain such a transcript, the party shall state in an affidavit the reasons the party cannot obtain it; (12) such other matters as may be deemed pertinent. An original and four (4) copies of the petition and accompanying documents shall be filed with the clerk of the Supreme Court. The Supreme Court or the Court of Appeals may require that additional copies be furnished.
25

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first—and a delay of eight or more months is presumptively prejudicial.” Ben v. State, 95 So.3d 1236, 1242 (Miss. 2012).
Despite the above remedies, plaintiffs complain that their right to a preliminary hearing, during which they wish to have counsel to challenge bail and probable cause determinations, is cut off once the Grand Jury hands down a true bill. Plaintiffs, though, were not denied a preliminary hearing, only threatened that they would not receive appointed counsel during the preliminary hearing. Assuming that the defendants would refuse to appoint counsel for a preliminary hearing, plaintiffs could still request preliminary hearings and, during the preliminary hearings, argue that their right to counsel had attached, entitling them to representation at all critical stages. See Rothgery, 554 U.S. at 194-95 (the right to counsel attaches at the plaintiff’s first appearance before a judicial officer, regardless of whether a public prosecutor is aware or involved). Alternatively, the plaintiffs could have requested preliminary hearings or individualized bail hearings and proceeded in pro se capacities.
Given the above options, this court is not persuaded by the plaintiffs’ argument that the state cannot provide adequate relief because the right to a preliminary hearing is cut off at the time of indictment. As explained in Duke v. State of Tex., 477 F.2d 244, 253 (5th Cir. 1973), “[a] party may not invoke the aid of a federal court, alleging that his state remedies are inadequate, without having first tested the sufficiency of those remedies and having found them to be wanting.”
Accordingly, this court is persuaded that each of the three elements of Younger abstention is satisfied, and that abstention is proper. This determination, however, does not settle this entire case. Younger abstention applies only to requests for declaratory
26

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and injunctive relief; it is not applicable to claims for monetary damages. Lewis v. Beddingfield, 20 F.3d 123, 125 (5th Cir. 1994). Because Burks and Bassett have demanded an award of damages against Scott County “for the time they [Burks and Bassett] spent wrongfully detained at the Scott County jail due directly to Scott County’s failure to provide them with counsel and individualized bail hearings,” Younger abstention does not apply. Amended Complaint, docket no. 39.
Precedent in this jurisdiction, the United States Court of Appeals for the Fifth Circuit, directs this court to dismiss the requests for declaratory judgment in accordance with Younger. This court, though, will retain and stay the request for damages against Scott County, permitting any remaining litigation in state court to proceed without this court’s interference. Boyd v. Farrin, 575 Fed.Appx. 517, 519 (5th Cir. 2014). Upon conclusion of the state court proceedings, parties should notify this court as to the status of the state court proceedings and whether the plaintiffs intend to proceed. Id.
V. CONCLUSION As articulated above, this court is persuaded to grant the motions to dismiss filed by Judge Freeman and Judge McCurdy [docket no. 48] and Judge Gordon [docket no. 53], in which attorney Duncan has joined [docket no. 55], finding that Younger abstention requires this court to abstain in the interest of comity and federalism. This court, though, will grant in part and deny in part Scott County’s motion to dismiss [docket no. 45]. This court will grant Scott County’s request to dismiss the plaintiffs’ requests for injunctive and/or declaratory relief, as they merit Younger abstention. This court, however, will retain Burks’ and Bassett’s demand for monetary damages against Scott County. This remaining portion of this lawsuit will be stayed
27

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Finally, because the only remaining claims are Burks’ and Bassett’s damages claim against Scott County, this court dismisses the motions to certify three classes [docket nos. 2 and 51] as moot. SO ORDERED this 30th day of September, 2015
s/ HENRY T, WINGATE UNITED STATES DISTRICT COURT JUDGE
28

 
 Case 3:14-cv-00745-HTW-LRA Document 87 Filed 09/30/15 Page 1 of 1

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

OCTAVIOUS BURKS and JOSHUA BASSETT, on behalf of themselves and all others similarly situated

PLAINTIFFS

V.

CIVIL ACTION NO. 3:14-cv-745-HTW-LRA

SCOTT COUNTY, MISSISISPPI; THE HONORABLE MARCUS D. GORDON, in his official capacity; THE HONORABLE BILL FREEMAN, in his official capacity; THE HONORABLE WILBUR MCCURDY, in his official capacity; MARK DUNCAN, District Attorney for the 8th Circuit Court District, in his official capacity

DEFENDANT

ORDER Before this court is plaintiffs motion to allow discovery related to class certification [docket no. 49]. Inasmuch as this court has found them motions for class certification moot, this court also dismisses this motion for discovery as moot. SO ORDERED this 30th day of September, 2015

HENRY T. WINGATE UNITED STATES DISTRICT COURT JUDGE

 
 Case 3:14-cv-00745-HTW-LRA Document 108 Filed 06/27/17 Page 1 of 8

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

Octavius Burks; Joshua Bassett, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
Scott County, Mississippi; The Honorable Marcus D. Gordon, in his official capacity; The Honorable Bill Freeman, in his official capacity; The Honorable Wilbur McCurdy, in his official capacity; Mark Duncan, District Attorney for the 8th Circuit Court District, in his official capacity;
Defendants.

* * * * * * Case No: 3:14cv745HTW-LRA * * * * * * * * * *

ORDER

Before this Court is Plaintiffs’ lawsuit seeking a declaratory judgment. Plaintiffs herein are Octavia Burks and Joshua Bassett. The Defendants are Scott County, Mississippi; the Honorable Marcus D. Gordon, in his official capacity; the Honorable Bill Freeman, in his official capacity; the Honorable Wilbur McCurdy, in his official capacity; and Mark Duncan, District Attorney for the 8th Circuit Court District, in his official capacity.
Plaintiffs are aggrieved over the following circumstances: that they were arrested for felony offenses and held in the Scott County Detention Center without counsel since November 18, 2013 and January 16, 2014, respectively, and that they were detained indefinitely without individual bail hearings in Scott County.

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On September 24, 2014, Plaintiffs filed the instant action alleging entitlement to a remedy under 42 U.S.C. §19831. This Court has subject matter jurisdiction pursuant to 28 U.S.C.A. §13312.
On April 10, 2017, the parties reached a settlement. That settlement concludes this litigation relative to the 6th Amendment right to counsel, the 14th Amendment right to equal protection, and the 14th Amendment right to individualized bail hearings necessary for the service of due process.
The parties have agreed to the following: Right to Counsel Sixth Amendment
The right to counsel attaches at an arrestee’s first formal judicial proceeding. Rothgery v. Gillespie County, Tx, 554 U.S. 191, 194, 212 (2008). Thereafter, counsel must be appointed as soon as is reasonably feasible “to allow for adequate representation at any critical stage before trial.” Id. at 212. Under Mississippi law, the right to counsel attaches at arrest, rather than at the first judicial proceeding. Grayson v. State, 806 So.2d 241, 248 (Miss. 2001). The prompt appointment of counsel following attachment is necessary to protect an indigent arrestee’s fundamental right to pretrial liberty. See United States v. Salerno, 481 U.S. 739, 750,
1 Title 42 U.S.C. §1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 2 Title 28 U.S.C.A. §1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

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755 (1987) (recognizing the fundamental right to pretrial liberty); Argersinger v. Hamlin, 407 U.S. 25, 37-38, (1972) (“We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment.”). Further, it is wellestablished that a preliminary hearing, at which an arrestee may earn release by challenging the arrest and arguing for lowered bail conditions, is a critical stage before trial. Coleman v. Alabama, 399 U.S. 1, 9 (1970). The right to counsel for a preliminary hearing includes the right to consult with an attorney about the preliminary hearing. See Avery v. Alabama, 308 U.S. 444, 446 (1940) (concluding that right to assistance of counsel must include “opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense”); cf. Roe v. Flores-Ortega, 528 U.S. 470, 478-80 (2000) (counsel ordinarily has obligation to consult with client about an appeal).
Under Mississippi law, a grand jury indictment moots a detained arrestee’s right to a preliminary hearing and, consequently, the arrestee’s right to counsel for a preliminary hearing. Miss. R. Unif. Cir. & Cnty. Ct. 6.05. Thus, absent a valid waiver, counsel must be provided for indigent defendants prior to indictment, at or promptly after the first judicial proceeding, to preserve an indigent arrestee’s right to a preliminary hearing and meaningful representation at all critical stages before trial. In Mississippi jurisdictions with public defenders, state law requires that indigency affidavits be provided as part of the arrest process, and indigent defendants become clients of the public defender upon executing that affidavit. In re Office of the Hinds County Public Defender, No. 2015-M-00397 (interpreting Miss. Code. Ann. § 25-329(1)).

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Equal Protection Delaying the appointment of counsel to indigent defendants until after a grand jury
indictment in Mississippi also implicates the Equal Protection Clause of the Fourteenth Amendment. Such delay impermissibly risks creating a dual system of justice wherein only arrestees who can afford counsel have meaningful access to the pretrial process, including preliminary and bail hearings, case investigation, and plea negotiation. See Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”); see also Douglas v. California, 372 U.S. 353, 35758 (1963) (“There is lacking that equality demanded by the Fourteenth Amendment where the rich man . . . enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent . . . is forced to shift for himself.”); cf. Mayer v. City of Chicago, 404 U.S. 189, 197 (1971) (“The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed.”). Right to Bail
In the pretrial context, it is well settled that jailing someone solely because they cannot satisfy a financial condition “is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978). Though the state has a compelling interest in assuring the presence at trial of persons charged with crimes, an arrestee’s right to pretrial liberty is fundamental. United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”). In imposing bail, the judge must determine the least onerous conditions of

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release that will ensure the defendant’s presence at trial. Pugh, 572 F.2d at p. 1058 fn.8; Lee vs.

Lawson, 375 So.2d 1019, 1023 (Miss. 1979). Accordingly, an arrestee is entitled to an

individualized bail hearing wherein courts must meaningfully consider alternatives other than

money bail in determining how best to assure a defendant’s presence at trial. Stack v. Boyle,

342 U.S. 1, 5 (1951); Lee 375 So. 2d at 1023.

All parties have consented and agreed with the above. This Court is satisfied that this

submitted proposal for declaratory judgment comports with the law. The parties have submitted

a signed agreement entitled “Agreement to Settle All Equitable Claims.” This document shall

be made a part of this Order. Accordingly, the Court enters such as the ruling of this Court.

This case is now CLOSED.

SO ORDERED AND ADJUDGED this 26th

day of June

, 2017.

s/ HENRY T. WINGATE

____

UNITED DISTRICT COURT JUDGE

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 U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:14-cv-00745-HTW-LRA

Burks et al v. Scott County, Mississippi et al Assigned to: District Judge Henry T. Wingate Referred to: Magistrate Judge Linda R. Anderson Cause: 42:1983 Prisoner Civil Rights

Date Filed: 09/23/2014 Date Terminated: 06/27/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Octavious Burks On Behalf of himself and All Others Similarly Situated

represented by Brandon Buskey - PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.-New York 125 Broad Street, 18th Floor New York, NY 10004 212/284-7364 Fax: 212/549-2654 Email: bbuskey@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles B. Irvin IRVIN LAW, PLLC P. O. Box 13154 Jackson, MS 39236 601/589-0235 Fax: 877/288-2123 Email: cbirvin@irvin-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cliff Johnson MACARTHUR JUSTICE CENTER - University Director, University of Mississippi School of Law 481 Chucky Mullins Drive University, MS 38677 662-915-6863 Email:

cjohnson@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezekiel Edwards - PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.-New York 125 Broad Street, 18th Floor New York, NY 10004 212/549-2610 Fax: 212/549-2654 Email: eedwards@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James W. Craig THE MACARTHUR JUSTICE CENTER 4400 S. Carrollton Avenue New Orleans, LA 70119 504/620-2259 Fax: 504/558-0378 Email: jim.craig@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer A. Riley-Collins ACLU OF MISSISSIPPI - Jackson P. O. Box 2242 233 East Capitol Street (39201) Jackson, MS 39225-2242 601/354-3408 Fax: 601/355-6465 Email: jriley-collins@aclu-ms.org TERMINATED: 03/22/2017 ATTORNEY TO BE NOTICED
Joshua F. Tom ACLU OF MISSISSIPPI - Jackson P. O. Box 2242 233 East Capitol Street (39201) Jackson, MS 39225-2242 601/354-3408

Plaintiff
Joshua Bassett On Behalf of himself and All Others Similarly Situated

Fax: 601/355-6465 Email: jtom@aclu-ms.org ATTORNEY TO BE NOTICED
represented by Brandon Buskey - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Charles B. Irvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezekiel Edwards - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James W. Craig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer A. Riley-Collins (See above for address) TERMINATED: 03/22/2017 ATTORNEY TO BE NOTICED
Joshua F. Tom (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Scott County, Mississippi
Defendant The Honorable Marcus D. Gordon in his official capacity
Defendant The Honorable Bill Freeman in his official capacity
Defendant The Honorable Wilbur McCurdy in his official capacity Defendant

represented by William Robert Allen ALLEN, ALLEN, BREELAND & ALLEN, PLLC P.O. Box 751 214 Justice Street (39601) Brookhaven, MS 39602-0751 601/833-4361 Fax: 601/833-6647 Email: will.allen@aabalegal.com ATTORNEY TO BE NOTICED
represented by Justin L. Matheny-State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601-359-3825 Fax: 601-359-2003 Email: jmath@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Griffith JACKS GRIFFITH LUCIANO, PA P. O. Box 1209 150 N. Sharpe Ave. Cleveland, MS 38732-1209 662/843-6171 Fax: 662/843-6176 Email: dgriffith@jlpalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Duncan District Attorney for the 8th Circuit Court District, in his official capacity
Defendant Mike Lee Scott County Sheriff, in his official capacity TERMINATED: 12/12/2014

represented by Douglas T. Miracle-State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE 550 High Street, Suite 1200 P. O. Box 220 (39205) Jackson, MS 39201 601/359-5654 Fax: 601/359-2003 Email: dmira@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Robert Allen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/23/2014
09/23/2014 09/23/2014
09/23/2014 09/24/2014 09/24/2014

# Docket Text
1 COMPLAINT against Mark Duncan, Bill Freeman, Marcus D. Gordon, Mike Lee, Wilbur McCurdy, Scott County, Mississippi ( Filing fee $ 400 receipt number 34643029338), filed by Octavious Burks, Joshua Bassett. (Attachments: # 1 Civil Cover Sheet)(MGB) (Entered: 09/24/2014)
2 MOTION to Certify Class by Joshua Bassett, Octavious Burks (MGB) (Entered: 09/24/2014)
3 MEMORANDUM in Support re 2 MOTION to Certify Class filed by Joshua Bassett, Octavious Burks (Attachments: # 1 Exhibit Letter re: FIC applications, # 2 Exhibit Letter re: FIC applications, # 3 Exhibit Fax from Scott County Correctional, # 4 Exhibit Indictments, # 5 Exhibit Letter re: FIC applications)(MGB) (Entered: 09/24/2014)
Pro Hac Vice fee paid by Ezekiel Edwards and Brandon Buskey $ 200, receipt number 34643029339 (MGB) (Entered: 09/24/2014)
4 MOTION for Brandon Buskey to Appear Pro Hac Vice by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 09/24/2014)
5 MOTION for Ezekiel Edwards to Appear Pro Hac Vice by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 09/24/2014)

09/26/2014
10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/02/2014 10/14/2014 10/14/2014 10/15/2014 10/15/2014 10/15/2014
10/15/2014

TEXT-ONLY ORDER granting 4 Motion to Appear Pro Hac Vice of BRANDON BUSKEY; and granting 5 Motion to Appear Pro Hac Vice of EZEKIEL EDWARDS. Signed by Magistrate Judge Linda R. Anderson on 9/26/2014. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 09/26/2014)
6 Summons Issued as to Mark Duncan, Bill Freeman, Marcus D. Gordon, Mike Lee, Wilbur McCurdy, Scott County, Mississippi. (MGB) (Entered: 10/02/2014)
7 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Scott County, Mississippi served on 10/2/2014, answer due 10/23/2014. (Johnson, Cliff) (Entered: 10/02/2014)
8 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Marcus D. Gordon served on 10/2/2014, answer due 10/23/2014. (Johnson, Cliff) (Entered: 10/02/2014)
9 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Mark Duncan served on 10/2/2014, answer due 10/23/2014. (Johnson, Cliff) (Entered: 10/02/2014)
10 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Mike Lee served on 10/2/2014, answer due 10/23/2014. (Johnson, Cliff) (Entered: 10/02/2014)
11 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Wilbur McCurdy served on 10/14/2014, answer due 11/4/2014. (Johnson, Cliff) (Entered: 10/14/2014)
12 SUMMONS Returned Executed by Octavious Burks, Joshua Bassett Bill Freeman served on 10/14/2014, answer due 11/4/2014. (Johnson, Cliff) (Entered: 10/14/2014)
13 NOTICE of Appearance by Douglas T. Miracle on behalf of Mark Duncan (Miracle, Douglas) (Entered: 10/15/2014)
14 NOTICE of Appearance by Justin L. Matheny on behalf of Marcus D. Gordon (Matheny, Justin) (Entered: 10/15/2014)
15 MOTION for Extension of Time to File Response/Reply as to 3 Memorandum in Support of Motion, 1 Complaint, 2 MOTION to Certify Class by Mark Duncan (Miracle, Douglas) (Entered: 10/15/2014)
16 MOTION for Extension of Time to File Response/Reply as to 3 Memorandum in Support of Motion, 1 Complaint, 2 MOTION

10/29/2014 11/24/2014
11/24/2014 11/24/2014
11/24/2014 11/24/2014 11/24/2014

to Certify Class by Marcus D. Gordon (Matheny, Justin) (Entered: 10/15/2014)
17 ORDER granting 15 Motion for Extension of Time to File Response/Reply re 2 MOTION to Certify Class ; granting 16 Motion for Extension of Time to File Response/Reply re 2 MOTION to Certify Class Responses due by 11/24/2014 Signed by District Judge Henry T. Wingate on 10/29/14 (TRS) (Entered: 10/29/2014)
18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds by Mark Duncan (Attachments: # 1 Exhibit A Burkes Federal Grand Jury Charge, # 2 Exhibit B - Burkes Criminal Docket for Case Number 3:14-cr-00121-DPJ-LRA-1, # 3 Exhibit C - Burkes Federal Court Detention Order Pending Trial, # 4 Exhibit D - Burkes Federal Plea Agreement, # 5 Exhibit E - Bassetts General Information Sheet on Criminal Charge, # 6 Exhibit F - Officers Report from; Bassetts Arrest, # 7 Exhibit G - Bassetts Recognizance Bond)(Miracle, Douglas) (Entered: 11/24/2014)
19 MEMORANDUM in Support re 18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Mark Duncan (Miracle, Douglas) (Entered: 11/24/2014)
20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds by Marcus D. Gordon (Attachments: # 1 Exhibit A - Burkes Federal Grand Jury Charge, # 2 Exhibit B - Burkes Criminal Docket for Case Number 3:14-cr-00121-DPJ-LRA-1, # 3 Exhibit C - Burkes Federal Court Detention Order Pending Trial, # 4 Exhibit D - Burkes Federal Plea Agreement, # 5 Exhibit E - Bassetts General Information Sheet on Criminal Charge, # 6 Exhibit F - Officers Report from; Bassetts Arrest, # 7 Exhibit G - Bassetts Recognizance Bond)(Matheny, Justin) (Entered: 11/24/2014)
21 MEMORANDUM in Support re 20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Marcus D. Gordon (Matheny, Justin) (Entered: 11/24/2014)
22 RESPONSE in Opposition re 2 MOTION to Certify Class filed by Mark Duncan (Miracle, Douglas) (Entered: 11/24/2014)
23 MEMORANDUM IN SUPPORT re 22 Response in Opposition to Motion for Class Certification filed by Mark Duncan (Miracle, Douglas) (Entered: 11/24/2014)

11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014 11/24/2014
11/24/2014 11/25/2014 12/01/2014

24 Joinder in Document by Marcus D. Gordon to 23 Memorandum in Support filed by Mark Duncan, 22 Response in Opposition to Motion filed by Mark Duncan (Matheny, Justin) (Entered: 11/24/2014)
25 ANSWER to 1 Complaint, by Mike Lee, Scott County, Mississippi.(Allen, William) (Entered: 11/24/2014)
26 MOTION to Dismiss by Mike Lee, Scott County, Mississippi (Allen, William) (Entered: 11/24/2014)
27 MEMORANDUM in Support re 26 MOTION to Dismiss filed by Mike Lee, Scott County, Mississippi (Allen, William) (Entered: 11/24/2014)
28 Joinder in Document by Mike Lee, Scott County, Mississippi to 23 Memorandum in Support filed by Mark Duncan, 22 Response in Opposition to Motion filed by Mark Duncan (Allen, William) (Entered: 11/24/2014)
29 NOTICE of Appearance by Daniel J. Griffith on behalf of Bill Freeman, Wilbur McCurdy (Griffith, Daniel) (Entered: 11/24/2014)
30 ANSWER to 1 Complaint, by Bill Freeman, Wilbur McCurdy.(Griffith, Daniel) (Entered: 11/24/2014)
31 Joinder in Document by Bill Freeman, Wilbur McCurdy to 26 MOTION to Dismiss filed by Scott County, Mississippi, Mike Lee, 23 Memorandum in Support filed by Mark Duncan, 27 Memorandum in Support of Motion filed by Scott County, Mississippi, Mike Lee, 22 Response in Opposition to Motion filed by Mark Duncan (Griffith, Daniel) (Entered: 11/24/2014)
32 MOTION to Dismiss by Bill Freeman, Wilbur McCurdy (Attachments: # 1 Exhibit A - Orders Recusing Judges)(Griffith, Daniel) (Entered: 11/24/2014)
33 ORDER STAYING DISCOVERY not related to the immunity defense or jurisdictional defense issues pending a ruling on the motions filed herein. Signed by Magistrate Judge Linda R. Anderson on 11/25/2014. (WG) (Entered: 11/25/2014)
34 MOTION for Extension of Time to File Response/Reply as to 22 Response in Opposition to 2 Motion for Class Certification

12/02/2014
12/05/2014
12/05/2014 12/05/2014
12/05/2014 12/08/2014 12/12/2014 12/23/2014 01/16/2015 01/16/2015

by Joshua Bassett, Octavious Burks (Johnson, Cliff) Modified on 12/2/2014 (PKM). (Entered: 12/01/2014)
DOCKET ANNOTATION as to 34 : Incorrect linkage made. Motion for Extension of Time to File Reply to Response should be linked to Document 2 , Motion for Class Certification. All related filings to motions should be linked back to the original motion. Court staff has made the correction. (PKM) (Entered: 12/02/2014)
35 **ERROR** Disregard this entry **ORDER granting 34 Motion for Extension of Time to File Response/Reply re 2 MOTION to Certify Class Responses due by 12/8/2014 Signed by District Judge Henry T. Wingate on 12/5/14 (TRS) Modified on 12/5/2014 (MGB). (Entered: 12/05/2014)
DOCKET ANNOTATION as to the previous entry. ****PLEASE DISREGARD PREVIOUS ENTRY*** The order was inadvertently docketed in the wrong case. (TRS) (Entered: 12/05/2014)
36 ORDER GRANTING 34 MOTION for Extension of Time to File Response/Reply as to 22 Response in Opposition to Motion filed by Joshua Bassett, Octavious Burks. Plaintiff shall have up to and including December 8 to file their Reply in Support of Motion to Certify Class. Signed by District Judge Henry T. Wingate on 12/5/14 (TRS) (Entered: 12/05/2014)
37 MOTION to Stay Proceedings by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 12/05/2014)
38 Amended MOTION to Stay Proceedings by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 12/08/2014)
39 AMENDED COMPLAINT against Mark Duncan, Bill Freeman, Marcus D. Gordon, Wilbur McCurdy, Scott County, Mississippi, filed by Octavious Burks, Joshua Bassett.(Johnson, Cliff) (Entered: 12/12/2014)
40 ORDER granting 37 Motion to Stay Proceedings; granting 38 Motion to Stay Proceedings Signed by District Judge Henry T. Wingate on 12/22/14 (TRS) (Entered: 12/23/2014)
41 ANSWER to 39 Amended Complaint by Marcus D. Gordon.(Matheny, Justin) (Entered: 01/16/2015)
42 ANSWER to 39 Amended Complaint by Mark Duncan.(Miracle, Douglas) (Entered: 01/16/2015)

01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/22/2015
01/22/2015
02/09/2015
02/09/2015
02/09/2015 02/09/2015 02/09/2015

43 ANSWER to 39 Amended Complaint by Bill Freeman, Wilbur McCurdy.(Griffith, Daniel) (Entered: 01/16/2015)
44 ANSWER to 39 Amended Complaint by Scott County, Mississippi.(Allen, William) (Entered: 01/16/2015)
45 MOTION to Dismiss by Scott County, Mississippi (Allen, William) (Entered: 01/16/2015)
46 MEMORANDUM in Support re 45 MOTION to Dismiss filed by Scott County, Mississippi (Allen, William) (Entered: 01/16/2015)
47 Joinder in Document by Bill Freeman, Wilbur McCurdy to 46 Memorandum in Support of Motion filed by Scott County, Mississippi, 45 MOTION to Dismiss filed by Scott County, Mississippi (Griffith, Daniel) (Entered: 01/22/2015)
48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint by Bill Freeman, Wilbur McCurdy (Attachments: # 1 Exhibit A Recusal Orders for Judges Freeman and McCurdy)(Griffith, Daniel) (Entered: 01/22/2015)
49 MOTION to Amend/Correct 33 , Order Staying Discovery, Court's Order So As To Allow Discovery on Matters Related To Class Certification by Joshua Bassett, Octavious Burks (Johnson, Cliff) Modified on 2/10/2015 (PKM). (Entered: 02/09/2015)
50 MEMORANDUM in Support re 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification filed by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 02/09/2015)
51 Supplemental MOTION to Certify Class (Re-Assertion) by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 02/09/2015)
52 MEMORANDUM in Support re 51 Supplemental MOTION to Certify Class (Re-Assertion) filed by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 02/09/2015)
53 MOTION for Judgment on the Pleadings by Marcus D. Gordon (Attachments: # 1 Exhibit 1 - January 26, 2015 Burks Judgment, # 2 Exhibit 2 - December 6, 2014 Bassett Indictment)(Matheny, Justin) (Entered: 02/09/2015)

02/09/2015 02/09/2015 02/09/2015 02/10/2015 02/23/2015
02/23/2015 02/23/2015 02/23/2015 02/26/2015

54 MEMORANDUM in Support re 53 MOTION for Judgment on the Pleadings filed by Marcus D. Gordon (Matheny, Justin) (Entered: 02/09/2015)
55 Joinder in Document by Mark Duncan to 53 MOTION for Judgment on the Pleadings filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 02/09/2015)
56 Joinder in Document by Mark Duncan to 54 Memorandum in Support of Motion filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 02/09/2015)
DOCKET ANNOTATION as to 49 : Court's staff has modified entry to show a relationship to document 33 , Order Staying Discovery. (PKM) (Entered: 02/10/2015)
57 RESPONSE in Opposition re 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification filed by Marcus D. Gordon (Matheny, Justin) (Entered: 02/23/2015)
58 MEMORANDUM IN SUPPORT re 57 Response in Opposition to Motion filed by Marcus D. Gordon (Matheny, Justin) (Entered: 02/23/2015)
59 Joinder in Document by Mark Duncan to 57 Response in Opposition to Motion filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 02/23/2015)
60 Joinder in Document by Mark Duncan to 58 Memorandum in Support filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 02/23/2015)
61 AGREED ORDER granting extension of time to file responses to 32 MOTION to Dismiss filed by Bill Freeman, Wilbur McCurdy, 20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Marcus D. Gordon, 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint filed by Bill Freeman, Wilbur McCurdy, 45 MOTION to Dismiss filed by Scott County, Mississippi, 18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Mark Duncan. Plaintiffs responses to Defendants' pending Motions may be filed on or before March 6, 2015. Defendants are granted until March 6, 2015, to file responses to Plaintiffs' pending Motions. Signed by District Judge Henry T. Wingate on 02/24/15 (TRS) Modified on 2/27/2015 (TRS). (Entered: 02/26/2015)

03/04/2015
03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015

NOTICE of Hearing on Motion 26 MOTION to Dismiss , 53 MOTION for Judgment on the Pleadings , 32 MOTION to Dismiss , 51 Supplemental MOTION to Certify Class (Re-Assertion), 18 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds, 2 MOTION to Certify Class, 20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds, 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint, 45 MOTION to Dismiss : Motion Hearing set for 3/27/2015 10:00 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate (TRS) (Entered: 03/04/2015)
62 RESPONSE in Opposition re 51 Supplemental MOTION to Certify Class (Re-Assertion) filed by Mark Duncan (Miracle, Douglas) (Entered: 03/06/2015)
63 MEMORANDUM in Opposition re 51 Supplemental MOTION to Certify Class (Re-Assertion) filed by Mark Duncan (Miracle, Douglas) (Entered: 03/06/2015)
64 NOTICE of Change of Address by James W. Craig (Craig, James) (Entered: 03/06/2015)
65 Rebuttal re 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/06/2015)
66 RESPONSE to Motion re 53 MOTION for Judgment on the Pleadings filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/06/2015)
67 Joinder in Document by Marcus D. Gordon to 62 Response in Opposition to Motion filed by Mark Duncan (Matheny, Justin) (Entered: 03/06/2015)
68 Joinder in Document by Marcus D. Gordon to 63 Memorandum in Opposition to Motion filed by Mark Duncan (Matheny, Justin) (Entered: 03/06/2015)
69 RESPONSE in Opposition re 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification filed by Scott County, Mississippi (Allen, William) (Entered: 03/06/2015)
70 Joinder in Document by Bill Freeman, Wilbur McCurdy to 54 Memorandum in Support of Motion filed by Marcus D.

03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015
03/06/2015 03/16/2015 03/17/2015

Gordon, 53 MOTION for Judgment on the Pleadings filed by Marcus D. Gordon (Griffith, Daniel) (Entered: 03/06/2015)
71 Joinder in Document by Bill Freeman, Wilbur McCurdy to 58 Memorandum in Support filed by Marcus D. Gordon, 57 Response in Opposition to Motion filed by Marcus D. Gordon (Griffith, Daniel) (Entered: 03/06/2015)
72 Joinder in Document by Scott County, Mississippi to 62 Response in Opposition to Motion filed by Mark Duncan, 63 Memorandum in Opposition to Motion filed by Mark Duncan (Allen, William) (Entered: 03/06/2015)
73 Joinder in Document by Bill Freeman, Wilbur McCurdy to 62 Response in Opposition to Motion filed by Mark Duncan, 63 Memorandum in Opposition to Motion filed by Mark Duncan (Griffith, Daniel) (Entered: 03/06/2015)
74 Joinder in Document by Bill Freeman, Wilbur McCurdy to 69 Response in Opposition to Motion filed by Scott County, Mississippi (Griffith, Daniel) (Entered: 03/06/2015)
75 RESPONSE in Opposition re 32 MOTION to Dismiss , 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint, 45 MOTION to Dismiss filed by Scott County and Joined By Justice Court Judges Freeman and McCurdy filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/06/2015)
76 RESPONSE in Opposition re 32 MOTION to Dismiss , 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint filed by Justice Court Judges Freeman and McCurdy filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/06/2015)
77 REPLY to Response to Motion re 76 Response in Opposition to Motion, 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint filed by Bill Freeman, Wilbur McCurdy (Griffith, Daniel) (Entered: 03/16/2015)
78 RESPONSE in Opposition re 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification (Response to Scott County Opposition) filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/17/2015)

03/17/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015 03/20/2015 03/27/2015

79 RESPONSE in Support re 51 Supplemental MOTION to Certify Class (Re-Assertion), 2 MOTION to Certify Class filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 03/17/2015)
80 Unopposed MOTION for Leave to File Excess Pages by Marcus D. Gordon (Matheny, Justin) (Entered: 03/19/2015)
81 MEMORANDUM in Support re 80 Unopposed MOTION for Leave to File Excess Pages filed by Marcus D. Gordon (Matheny, Justin) (Entered: 03/19/2015)
82 Rebuttal re 20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Marcus D. Gordon (Matheny, Justin) (Entered: 03/19/2015)
83 Joinder in Document by Mark Duncan to 82 Rebuttal filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 03/19/2015)
84 Rebuttal re 75 Response in Opposition to Motion, 45 MOTION to Dismiss filed by Scott County, Mississippi (Allen, William) (Entered: 03/20/2015)
Minute Entry for proceedings held before District Judge Henry T. Wingate. APPEARANCES: B. Buskey, J. Craig, C. Irvin, and C. Johnson, counsel for plaintiff's; J. Matheny, D. Miracle, W. Minor, D. Griffith, and W. Allen, counsel for defendants. Motion Hearing held on 3/27/2015. The Court FOUND AS MOOT 26 MOTION to Dismiss filed by Scott County, Mississippi, Mike Lee, FOUND AS MOOT 32 MOTION to Dismiss filed by Bill Freeman, Wilbur McCurdy, GRANTED 80 Unopposed MOTION for Leave to File Excess Pages filed by Marcus D. Gordon, RESERVED RULING 51 Supplemental MOTION to Certify Class (ReAssertion) filed by Joshua Bassett, Octavious Burks, FOUND AS MOOT 20 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Other Grounds filed by Marcus D. Gordon, RESERVED RULING 2 MOTION to Certify Class filed by Joshua Bassett, Octavious Burks, RESERVED RULING 49 MOTION to Amend/Correct Court's Order So As To Allow Discovery on Matters Related To Class Certification filed by Joshua Bassett, Octavious Burks, RESERVED RULING 53 MOTION for Judgment on the Pleadings filed by Marcus D. Gordon, RESERVED RULING 48 MOTION to Dismiss Doc 39 Plaintiffs' Amended Complaint filed by Bill Freeman, Wilbur McCurdy, RESERVED RULING 45 MOTION to Dismiss filed by Scott County, Mississippi, FOUND AS MOOT 18 MOTION to Dismiss for Lack of Subject Matter

03/27/2015 09/30/2015 09/30/2015 10/28/2015 10/28/2015 10/29/2015 10/29/2015
11/02/2015

Jurisdiction and Other Grounds filed by Mark Duncan. An order is forthcoming. (TRS) (Entered: 03/27/2015)
85 ORDER finding as moot 32 Motion to Dismiss; granting 80 Motion for Leave to File Excess Pages; finding as moot 18 Motion to Dismiss; finding as moot 20 Motion to Dismiss; finding as moot 26 Motion to Dismiss Signed by District Judge Henry T. Wingate on 3/27/15 (TRS) (Entered: 03/27/2015)
86 ORDER granting in part and denying in part 45 Motion to Dismiss; granting 48 Motion to Dismiss; finding as moot 51 Motion to Certify Class; granting 53 Motion for Judgment on the Pleadings; finding as moot 2 Motion to Certify Class Signed by District Judge Henry T. Wingate on 9/30/15 (TRS) (Entered: 09/30/2015)
87 ORDER dismissing as moot 49 Motion to Amend/Correct Signed by District Judge Henry T. Wingate on 9/30/15 (TRS) (Entered: 09/30/2015)
88 MOTION for Reconsideration re 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for Judgment on the Pleadings,,,,,, by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 10/28/2015)
89 **ERROR**Disregard this entry. MOTION for Reconsideration (Memorandum in Support) by Joshua Bassett, Octavious Burks (Craig, James) Modified on 10/29/2015 (PKM). (Entered: 10/28/2015)
DOCKET ANNOTATION as to 89 : Incorrect event chosen. This document should have been docketed as Memorandum in Support of Motion which is located under Responses and Replies. Attorney is directed to refile using the correct event and relate the entry back to the corresponding motion. (PKM) (Entered: 10/29/2015)
90 MEMORANDUM in Support re 88 MOTION for Reconsideration re 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for Judgment on the Pleadings,,,,,, , 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for Judgment on the Pleadings,,,,,, filed by Joshua Bassett, Octavious Burks (Craig, James) (Entered: 10/29/2015)
91 MOTION for Extension of Time to File Response/Reply as to 88 MOTION for Reconsideration re 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for

11/20/2015 11/23/2015 11/23/2015 11/23/2015 11/23/2015 12/10/2015 12/11/2015
12/18/2015 04/18/2016

Judgment on the Pleadings,,,,,, by Marcus D. Gordon (Matheny, Justin) (Entered: 11/02/2015)
92 Second MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Reconsideration by Mark Duncan (Miracle, Douglas) (Entered: 11/20/2015)
93 RESPONSE in Opposition re 88 MOTION for Reconsideration re 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for Judgment on the Pleadings,,,,,, filed by Marcus D. Gordon (Matheny, Justin) (Entered: 11/23/2015)
94 MEMORANDUM IN SUPPORT re 93 Response in Opposition to Motion, filed by Marcus D. Gordon (Matheny, Justin) (Entered: 11/23/2015)
95 Joinder in Document by Scott County, Mississippi to 93 Response in Opposition to Motion, filed by Marcus D. Gordon, 94 Memorandum in Support filed by Marcus D. Gordon (Allen, William) (Entered: 11/23/2015)
96 Joinder in Document by Mark Duncan to 94 Memorandum in Support filed by Marcus D. Gordon (Miracle, Douglas) (Entered: 11/23/2015)
97 REPLY to Response to Motion re 93 Response in Opposition to Motion for Reconsideration, document 88 , filed by Joshua Bassett, Octavious Burks (Buskey - PHV, Brandon) Modified on 12/11/2015 (PKM). (Entered: 12/10/2015)
DOCKET ANNOTATION as to 97 : Incorrect linkage made. Reply to Response to Motion should be linked to Motion for Reconsideration, document 88 . All related filings to motions (using the "Responses and Replies" category, with the exception of "Response to Order") should be linked back to the original motion. Court staff has made the correction. (PKM) (Entered: 12/11/2015)
98 NOTICE of Supplemental Authority by Joshua Bassett, Octavious Burks re 88 MOTION for Reconsideration re 86 Order on Motion to Dismiss,, Order on Motion to Certify Class, Order on Motion for Judgment on the Pleadings,,,,,, (Attachments: # 1 Exhibit)(Buskey - PHV, Brandon) (Entered: 12/18/2015)
TEXT ONLY ORDER finding as moot 91 Motion for Extension of Time to File Response/Reply ; finding as moot 92 Motion for Extension of Time to File Response/Reply. NO FURTHER

01/25/2017 03/02/2017
03/03/2017 03/03/2017 03/03/2017 03/03/2017 03/20/2017 03/21/2017
03/21/2017

WRITTEN ORDER SHALL BE ISSUED. Signed by District Judge Henry T. Wingate on 4/18/16 (TRS) (Entered: 04/18/2016)
99 NOTICE of Appearance by Jennifer Riley-Collins on behalf of Joshua Bassett, Octavious Burks (Riley-Collins, Jennifer) (Entered: 01/25/2017)
TEXT ONLY ORDER This Court orders each of the parties to advise the Court by 12 p.m., Friday, March 3, 2017, as to whether this case is still a live controversy or has been settled or is on the verge of settlement. The parties are directed to respond by filing a status report through the ECF system. NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by District Judge Henry T. Wingate on 3/2/2017 (CGC) (Entered: 03/02/2017)
100 STATUS REPORT by Scott County, Mississippi (Allen, William) (Entered: 03/03/2017)
101 STATUS REPORT by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 03/03/2017)
102 STATUS REPORT by Marcus D. Gordon (Matheny-State Gov, Justin) (Entered: 03/03/2017)
103 STATUS REPORT by Mark Duncan (Miracle-State Gov, Douglas) (Entered: 03/03/2017)
104 NOTICE of Appearance by Joshua F. Tom on behalf of All Plaintiffs (Tom, Joshua) (Entered: 03/20/2017)
105 **ERROR** Disregard this entry. MOTION to Withdraw as Attorney Jennifer Riley Collins by Joshua Bassett, Octavious Burks (Tom, Joshua) Modified on 3/21/2017 (PKM). (Entered: 03/21/2017)
DOCKET ANNOTATION as to 105 : Pursuant to the Administrative Procedures for Electronic Case Filing Section 2.C. and FED.R.Civ.P.11 an attorney's password issued by the court combined with the user's identification (login) serves as the attorney's signature for Rule 11 and other purposes. Attorneys should not permit other attorneys to use their login and password for any ECF filing. Document 105 will be disregarded and the attorney with the electronic signature on the document should refile document. (PKM) (Entered: 03/21/2017)

03/21/2017 03/22/2017 04/05/2017 04/06/2017
04/10/2017
06/27/2017 06/27/2017

106 MOTION to Withdraw as Attorney Jennifer Riley Collins by Joshua Bassett, Octavious Burks (Riley-Collins, Jennifer) (Entered: 03/21/2017)
TEXT-ONLY ORDER granting 106 Motion to Withdraw as Attorney. Attorney Jennifer Riley-Collins terminated. Signed by Magistrate Judge Linda R. Anderson on 3/22/2017. NO FURTHER WRITTEN ORDER WILL ISSUE. (WG) (Entered: 03/22/2017)
107 STIPULATION of Dismissal with Prejudice as to Defendants Gordon/Cotten, Freeman, McCurdy, and Duncan by Joshua Bassett, Octavious Burks (Johnson, Cliff) (Entered: 04/05/2017)
NOTICE OF SETTING: Telephone Conference set for 4/11/2017 03:00 PM before Magistrate Judge Linda R. Anderson. Counsel for plaintiffs to initiate conference call. Telephone number: 601608-4440. (Note: Counsel for plaintiffs and counsel for Scott County only need to participate in conference.) (WG) (Entered: 04/06/2017)
Minute Entry for proceedings held before Magistrate Judge Linda R. Anderson: Telephone Conference held on 4/10/2017. Participants: Cliff Johnson and Will Allen. Parties advised the Court that this case has settled. Judge Wingate's office was joined in the call and advised that settlement documents would be submitted with declaratory judgment to be entered first. (WG) (Entered: 04/10/2017)
108 ORDER DISMISSING CASE Signed by District Judge Henry T. Wingate on 6/26/17 (Attachments: # 1 Attachment)(MGB) (Entered: 06/27/2017)
109 FINAL JUDGMENT Dismissing with Prejudice. Signed by District Judge Henry T. Wingate on 6/26/17 (MGB) (Entered: 06/27/2017)

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3:14-cv-00745-HTW-LRA 1.10