                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 94-CA-00988-SCT
TOMMY LEE RUSSELL
v.
S.C. PERKINS, JR.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                             08/23/94
TRIAL JUDGE:                                  HON. EUGENE M. BOGEN
COURT FROM WHICH APPEALED:                    LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       FRED M. WITTY
ATTORNEY FOR APPELLEE:                        PAUL MATHIS, JR.
NATURE OF THE CASE:                           CIVIL - TORTS (OTHER THAN PERSONAL
                                              INJURY AND PROPERTY DAMAGE)
DISPOSITION:                                  REVERSED AND REMANDED - 5/15/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               6/5/97




     BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:




                                 STATEMENT OF THE CASE

Tommy Lee Russell filed suit in the Circuit Court of Leflore County on May 8, 1992, against the City
of Greenwood and S.C. Perkins, Jr., alleging that Officer Perkins willfully, wantonly and with
reckless disregard for Russell's rights committed the intentional torts of battery and false
imprisonment against Russell. On June 16, 1994, the defendant entered a motion for summary
judgment under M.R.C.P. 56. The trial court, finding the city immune from any liability under
sovereign immunity and Perkins entitled to qualified immunity, granted summary judgment.

                                             ISSUES

Did the lower court err in awarding summary judgment to Officer Perkins on the ground of
qualified immunity?
Did the lower court err in granting summary judgment without notice and without a hearing,
as required by Rule 56(c) of the Rules of Civil Procedure?

                                                FACTS

On May 11, 1991, Officer Perkins arrested Tommy Lee Russell and charged him with public drunk.
However, the events leading up to the arrest are subject to the vagaries of the memories of four
different individuals. Russell testified in a sworn deposition that the events occurred as follows.
Russell asserts that around 10:00 a.m. he purchased two cans of beer. Around 5:00 p.m., after
drinking one of the beers, he went to visit his "friend," Gloria Baker. She disapproved of Russell
being in her house with the second beer. Baker left the house, went outside, and found two
policemen. The police returned to Baker's home and arrested Russell. According to Russell's
deposition;

     when he was putting the handcuffs on me, he stuck his fingernails like over in my wrists, like,
     and proceeded to take me on the outside. But when he got me on the outside, when he opened
     the door, he took the side of my head and slammed it up against the side of the roof of the car,
     and it hurt me so bad, and when I kneeled, you know, squatted down like, he hit me with a little
     old black strap right there in my eye.

Russell continues to assert that he at no time resisted the officers in any way.

Officer Rose assisted Officer Perkins in arresting Russell. In his deposition, he stated that Gloria
Baker flagged down the passing officers and asked them to help her remove a man from her house.
The officers entered Baker's home and observed Russell "bobbling up and down and talking loud
inside the house." In addition, Rose testified that at all times Russell slurred his words, staggered,
acted intoxicated, and smelled of alcohol. They then asked Russell to leave the house. Russell used
foul language and refused to leave. Russell then went outside, but again refused to leave the
premises. According to Rose, Perkins at no time struck or in any way abused Russell.

Russell claims that he received injuries as a result of Perkins' actions. However, other than testimony
to this effect, the only proof presented by Russell of such injuries was a receipt from a consultation
with a doctor. No documentary proof such as medical reports or statements were presented.

                                                 LAW

     Standard of Review - Summary Judgment

This Court's standard of review for summary judgments is well established. As seen in Mantachie
Nat. Gas Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992):

     This Court conducts de novo review of orders granting or denying summary judgment and
     looks at all the evidentiary matters before it--admissions in pleadings, answers to
     interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most
     favorable to the party against whom the motion has been made. If, in this view, the moving
     party is entitled to judgment as a matter of law, summary judgment should forthwith be entered
     in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial
     of a motion for summary judgment obviously are present where one party swears to one version
     of the matter in issue and another says the opposite. In addition, the burden of demonstrating
     that no genuine issue of fact exists is on the moving party. That is, the non-movant would be
     given the benefit of the doubt.

Mantachie Nat. Gas, 594 So. 2d at 1172 (citations omitted).

     If there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the
     non-moving party. That is, it is better to err on the side of denying a motion for summary
     judgment if a doubt exists as to whether a genuine issue of fact exists.

Ratliff v. Ratliff, 500 So. 2d 981, 981 (Miss. 1986). "If any triable issues of fact exist, the lower
court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed."
Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1983).

In Evans v. Trader, 614 So. 2d 955, 957 (Miss. 1993), this Court addressed the issue of summary
judgment in sovereign immunity cases in a case similar to the case sub judice. As stated in Evans;

     Under Mississippi common law, an officer of the state enjoys only a limited immunity from tort
     liability. An officer has;

     no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that
     duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental
     actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3)
     the governmental actor commits an intentional tort. Beyond that, a government official has no
     immunity when sued upon a tort that has nothing to do with his official position or decision-
     making function and has been committed outside the course and scope of his office.

     Barrett v. Miller, 599 So. 2d 559, 567 (Miss. 1992); McFadden v. State, 580 So. 2d 1210
     (Miss. 1991); Starnes v. City of Vardaman, 580 So. 2d 733, 737 (Miss. 1990).

Evans, 614 So. 2d at 957. In the case sub judice, if Officer Perkins committed an intentional tort, he
has no immunity to this civil action. Therefore, the sole issue in determining the validity of this
summary judgment is whether as a matter of law were the actions of Officer Perkins an intentional
tort.

In Evans, the plaintiff asserted that the police officer committed certain acts of aggression while
arresting Evans resulting in the infliction of a hairline fracture to Evans' second cervical vertebra. Id.
at 955. The defendant police officer moved for summary judgment which was granted by Judge
Bogen. Id. This Court reversed the granting of summary judgment stating that "questions of material
facts exists concerning whether [the officer] 'greatly or substantially exceeded his authority' when
performing the arrest and concerning whether his injury resulted from an intentional tort on Trader's
part." Id.

In the case sub judice, this Court is unfortunately restrained by Evans. As stated in Evans, "[w]hen
considering a motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party and give the non-movant the benefit of the doubt." Evans, 614
So. 2d at 958. See Sherrod v. United States Fidelity & Guar. Co., 518 So. 2d 640, 642 (Miss.
1987); McMullan v. Geosouthern Energy Corp., 556 So. 2d 1033, 1036 (Miss. 1990); Brown v.
Credit Center, Inc., 444 So. 2d 358, 362 (Miss 1985).

As the trial court did below, this Court must also review all pleadings de novo and assume all facts as
stated by Russell to be true. Assuming that Officer Perkins did attach the handcuffs too tightly, dig
his fingernails deeply into Russell's arm, bang Russell's head against the top of the squad car, and hit
Russell in the face with a leather-strap, this Court must ask "whether the act was necessary for law
enforcement purposes or whether the force employed was so excessive as to tear away the shield of
qualified immunity." Evans, 614 So. 2d at 958.

Furthermore, Russell "need not show that [Perkins] entertained a specific intent to injure him. It
would suffice to show that [Perkins] acted with wanton and reckless disregard for [Russell's] safety."
Id. See also McFadden v. State, 542 So. 2d 871, 881 (Miss. 1989) (qualified immunity does not
extend to acts committed with gross neglect or reckless indifference to plaintiff's well-being).
McFadden would even go beyond the requirements of Evans and require that it be "clear beyond a
reasonable doubt that [the plaintiff] can prove no set of facts in support of his claim . . ." prior to
granting a 12(b)(6) motion. McFadden, 545 So. 2d at 881. However, "we realize, of course, that
law enforcement officials are due the benefit of the doubt in cases where degrees of force are at
issue." Evans, 614 So. 2d at 958.

The facts of the case sub judice are very similar to those of Evans. Therefore, as in Evans, "we can
hardly say as a matter of law that [Perkins] did not engage in conduct which rose to the level of gross
negligence or reckless indifference to [Russell's] well-being." Id. With great reluctance, this Court
must reverse and remand this tawdry affair for further proceedings on the issue of whether Perkins
acted with wanton and reckless disregard for Russell's safety thereby denying Perkins the defense of
qualified immunity.

Did the lower court err in granting summary judgment without notice and without a hearing,
as required by Rule 56(c) of the Rules of Civil Procedure?

Perkins filed a motion for summary judgment pursuant to the June 6, 1994, in chambers conference
where according to Perkins "much discussion was had concerning the status of this case and the party
litigants' desire to file cross-dispositive motions." On June 16, 1994, Perkins filed his motion for
summary judgment. A certificate of service upon Russell's attorney was attached to this motion.
Russell asserts that the trial court should have required Perkins to give Russell additional notice and a
hearing should have been held prior to the entry of summary judgment against Russell. Perkins
asserts that the June 6 conference was sufficient notice and hearing to meet any potential
requirements of M.R.C.P. 56(c). Furthermore, Perkins asserts that M.R.C.P. 56(c) does not require
that a hearing be held. Since this Court must reverse and remand this case for further proceedings,
this issue is moot. Therefore, this Court will not at this time address this issue.

                                           CONCLUSION

Under the current liberal standard of review guaranteed to the non-moving party under M.R.C.P.
56(c), Perkins did not prove that there were no genuine issues of material fact. As stated in Trader v.
Evans, "we can hardly say as a matter of law that [Perkins] did not engage in conduct which rose to
the level of gross negligence or reckless indifference to [Russell's] well-being." Evans, 614 So. 2d at
958. Russell clearly sets forth sufficient allegations of excessive use of force to properly make this a
jury trial. We must assume that all of Russell's accusations are true. Assuming such, this Court can
not find that Perkins' actions did not constitute an intentional tort thereby denying him his cloak of
qualified immunity. Since this Court reverses the granting of summary judgment on the first issue,

Russell's assertion that his failure to receive adequate hearing on the motion for summary judgment is
moot.

REVERSED AND REMANDED.

PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS AND SMITH, JJ., CONCUR.
LEE, C.J. AND SULLIVAN, P.J., CONCUR IN RESULT ONLY.
