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Case 1:16-cv-00448-HSO-JCG Document 8 Filed 09/01/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

JERRY COOKSEY PLAINTIFF

VERSUS CAUSE NO: 1:16-cv-448-HSO-JCG

CITY OF GAUTIER; DANTE ELBIN, in his


Official capacity as Chief of Police for the City of Gautier
And individually DEFENDANTS
AMENDED COMPLAINT
COMES NOW, JERRY COOKSEY, hereinafter Cooksey, by and through undersigned

counsel, and makes this, his Complaint against named Defendants, and would show unto the Court

the following, to wit:

PARTIES

1. Plaintiff, Cooksey, is a resident citizen of Jackson County, Mississippi who may be contacted

through undersigned counsel.

2. Defendant City of Gautier, hereinafter Gautier, is a government entity organized under the

laws of the State of Mississippi who may be served with process through its City Manager at

3330 Highway 90, Gautier, MS 39553.

3. Defendant Dante Elbin is a resident citizen of Jackson County who may be served with process

at 3330 Hwy 90, Gautier, MS 39553.

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JURISDICTION AND VENUE

4. The misconduct complained of herein arose in Jackson County, Mississippi. Jurisdiction of the

parties and of the subject matter of this action are proper in this Court.

5. Venue is proper pursuant to Miss. Code Ann. 11-11-3 because substantial acts and omissions

which caused the injury occurred Jackson County, Mississippi, and because the action against

governmental entities must be commenced in the county where the entities are located.

6. This action is authorized by 42 U.S.C. 1983 and made pursuant to the 1st and 14th

Amendments to the United States Constitution.

FACTUAL ALLEGATIONS

7. Cooksey was employed as a police officer with the City of Gautier.

8. Cooksey was an excellent employee and officer who was promoted to Captain of

Administration, second in command to the chief.

9. While serving as Captain, Cooksey learned of criminal acts being committed within the

department, of which the Chief was aware.

10. Cooksey, attempting to be diligent under the circumstances, approached Chief Elbin and

informed him of the criminal acts uncovered by Cooksey.

11. These crimes include fraud, embezzlement, tax evasion, and other crimes being committed

within the Citys police department. Chief Elbins response to Cookseys discussion was that

the he would be able to explain it away and that no one would question his reasons.

12. Cooksey complained about time sheet fraud, wherein the chief was aware that employees

were allowed to fabricate time cards, being paid for days and hours not worked, etc.

Employees admitted to the time card fraud, and no action was taken against the employees,

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and the fraud continued, defrauding the City of Gautier and its taxpayers of money,

constituting the crimes of fraud, false pretense, and/or embezzlement.

13. Cooksey also complained about Chief Elbins use of DUI grant monies for the payment of

employee wages not involved with DUI enforcement. As a result of Elbins refusal to cease

the fraudulent use of grant money, Cooksey refused to sign off on any further time sheets for

overtime which Elbin directed to be fraudulently paid from the grant money.

14. In addition, Cooksey complained of the Citys use of reserve funds to pay employees and

avoid the payment of taxes, constituting tax evasion and criminal violations of state law. The

City places monies received from special events into a reserve account, and improperly used

this account to pay employees without the deduction of any taxes, paid to either the state or

the federal government. These funds were not reported on any W2 or 1099 or any other City

tax document.

15. Cooksey also complained of employees improperly using city property and patrol cars for

private use, such as security guard work for private companies and individuals, which may

also be considered a crime under state law.

16. A number of city officers had transferred and left the department because of the criminal acts

being covered up by the chief and others within the City.

17. During the summer of 2015, Cooksey was acting chief while Chief Elbin was on vacation.

18. While serving as acting chief, City Manager Samantha Abell met with Cooksey to discuss

the high turnover rate within the Citys police department.

19. At this meeting, Cooksey informed Abell of the crimes which he had reported to Chief Elbin.

Abell became irritated with Cooksey and accused Cooksey of lying about the accusations.

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20. At Cookseys request, Abell did discuss Cookseys allegations with officers, conducting

approximately 15 interviews.

21. Officers who were interviewed confided in Cooksey that Abell did not seem interested in the

truth, but rather in discrediting Cookseys accusations.

22. Abell presented a report to Chief Elbin stating that Cooksey was attempting to undermine the

chief, without a single mention of Cookseys accusations of criminal conduct. Upon

information and belief Abell had discussed Cookseys allegations with Elbin outside of the

report.

23. Cooksey later met with Abell in private and communicated to her that it appeared she was

trying to cover up these matters for the chief, to which Abell responded that it would

probably be best if Cooksey would just leave the department.

24. Later that same day, Chief Elbin called Cooksey into a meeting and admonished Cooksey for

reporting the criminal matters to Abell. Cooksey was then stripped of his title and transferred

to the Patrol Division as the Captain of Patrol, a demotion which was much less desirable

than Captain of Administration.

25. Cooksey discussed his concerns with Jason Pugh in human resources, who informed

Cooksey that he was powerless to assist Cooksey. It was stated that the City would not allow

the chief to receive any bad publicity, especially where Abell had worked to appoint Elbin as

chief.

26. Cooksey was advised by Pugh, who was afraid for his own job, to keep quiet, and work

towards retirement with the City.

27. In early 2016 Abell resigned as City Manager.

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28. The chief refused to communicate with Cooksey as he had before Cooksey made the

allegations, giving Cooksey the cold shoulder for months.

29. In September of 2016 Cooksey was placed on leave and questioned by the new City Manager

Paula Yancey and City Attorney Josh Danos about Abells prior report regarding Cooksey.

30. Shortly after being questioned about the report which had surfaced, Cooksey was given the

option to resign in lieu of termination.

31. Cooksey initially refused to resign because he desired to appeal the issues to the civil service

commission. Cookseys original offer of resignation did not include any waivers.

32. The City had concocted false, grossly misleading, and fabricated grounds for Cookseys

termination, saying that Cooksey had sexually harassed a male employee. While Cooksey

may have made an offhand comment about another employee, based upon the Citys

position, almost every officer who worked for the City was subject to termination.

33. The Citys stated grounds for Cookseys termination were wholly intended to prevent

Cooksey form desiring to appeal the matter, for fear of harm to his reputation.

34. Cooksey later learned that several officers were interviewed about Cooksey, and were

threatened with termination if they told anyone about the interview or if they spoke to

Cooksey or any attorney hired by Cooksey to investigate the matters.

35. At some point, Cooksey learned of a position with the City of Moss Point, but was told by

City administrators that he could not make the transfer if he was terminated by the City.

36. Cooksey needed a job desperately, and agreed to withdraw his appeal and resign if the City

would approve his transfer and withdraw his termination.

37. City administration then concocted a plan to ensure that Cooksey would waive his claims

against the City, and ensure he was unable to secure a job with the City of Moss Point.

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38. The City brokered a deal with Moss Point, wherein Cooksey would be allowed to resign

and the City of Moss Point could hire him as a lateral transfer.

39. As a condition of the resignation, without any additional consideration, the City forced

Cooksey, under threat of coercion and duress, to sign a release of any claims he may have

against the City stemming from his employment.

40. Based upon the false and/or misleading representations that Cooksey would immediately be

hired by the City of Moss Point, Cooksey was coerced into signing a release.

41. Just days later Cooksey was set to be hired by the City of Moss Point, when questions were

raised about Cookseys termination or resignation from Gautier.

42. Despite administrators being involved with the entire process and working with City of

Gautier City Manager Paula Yancey on the resignation of Cooksey, administrators elected to

not inform the Moss Point board of Cookseys status, and the matter was tabled, despite the

administrators presence at the board hearing.

43. Cooksey was never hired by the City of Moss Point despite the deal brokered by city

administrators. Upon information and belief, this deal was never meant to take place, and

was wholly intended to falsely induce and coerce Cooksey into signing a release of his

employment claims against the City.

44. The release itself is an improper censorship of Cookseys first amendment right to petition

the government. In addition, Cooksey received no consideration for his release, as he was

already given the option to resign.

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ALLEGATIONS OF LAW

45. All acts of Defendants were conducted under the color and pretenses of the ordinances,

policies, practices, customs, regulations, usages and/or statutes of the United States

Government, the State of Mississippi, and the City of Gautier.

46. Elbin, as Chief, was a final policy maker, capable of ratification for Defendants.

47. It is the policy, practice or custom of all Defendants to violate the procedural and substantive

due process rights of those citizens under their jurisdiction.

48. It is the policy, practice or custom of all Defendants to engage in actions that are fundamentally

unfair to its citizens.

49. Defendants, by and through their actions and under the color of law, violated Plaintiffs

constitutionally protected rights.

50. At all times relevant, the Plaintiffs constitutional rights, as alleged herein, were violated.

51. At all times relevant, the Plaintiffs constitutional rights, as alleged herein, were clearly

established.

52. Plaintiff has suffered injury to his constitutional and statutory rights.

53. As a result of Defendants conduct, Plaintiff has suffered humiliation, embarrassment, and loss

of reputation and professional credibility.

54. Alternatively, because of liability in effect for issues of this kind, and because it is the intent

of the Mississippi Legislature that the Defendants pay any claims for violation of a citizens

rights in damages under Mississippi Law, the doctrine of Monell v. Department of Social

Services, 475 U.S. 335 (U.S. 1986) should not apply to this cause, and the Defendants should

be held vicariously liable for its officials causing the civil liberty violations of Plaintiff.

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I. FIRST CAUSE OF ACTION 42 U.S.C. 1983


DUE PROCESS FREEDOM OF SPEECH

55. Cooksey hereby adopts all previously stated paragraphs as though fully restated herein.

56. The Defendants retaliated against Cooksey for exercising his Constitutional Rights in making

complaints and reporting the unlawful acts of the Defendant.

57. The motivating reason for the Defendants retaliation against Cooksey are the complaints and

claims made by Cooksey, which are protected free speech and are matters of public concern.

58. The Defendants have no good faith basis for the retaliatory termination.

59. The criminal matters complained of by Cooksey are not within his duties and responsibilities

as a police officer with the City of Gautier because they relate to statutes and regulations which

would not be investigated or prosecuted by the City of Gautier or its police force.

II. SECOND CAUSE OF ACTION DECLARATORY JUDGMENT

60. Cooksey hereby adopts all previously stated paragraphs as though fully restated herein.

61. Cooksey was coerced and fraudulently induced into signing a release of any claims he may

have against the City.

62. This release constitutes a violation of Cookseys constitutional rights, as government

censorship of Cookseys right to free speech and to petition the government.

63. In addition, the release is invalid as lacking consideration, and as being a product of fraud,

coercion, duress, material mistake, being unconscionable, and failing to constitute a meeting

of the minds.

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III. TAXPAYER CAUSES OF ACTION

64. Cooksey hereby adopts all previously stated paragraphs as though fully reinstated herein.

65. Cooksey brings this action on behalf of taxpayers for the City of Gautier and Jackson

County, and invites any other citizens to join suit against the Defendants for the recovery of

tax amounts misspent and misappropriated by the City and its administration.

66. The Defendants misspent, misappropriated, and unlawfully expended taxpayer funds in

violation of Mississippi and Federal law, and these funds must be repaid by the Defendants

and its administration to the taxpayers of the City of Gautier and Jackson County.

IV. STATE LAW CAUSES OF ACTION CITY OF GAUTIER

67. Cooksey hereby adopts all previously stated paragraphs as though fully reinstated herein.

68. On or about December 30, 2016 Cooksey served on the Defendants, via certified mail, the

attached Notice of Claim, made pursuant to the Mississippi Tort Claims Act. Exhibit A.

69. As alleged herein, Cooksey was ultimately terminated for reporting criminal acts and refusing

to commit criminal acts on behalf of his employer, the City of Gautier.

70. By terminating Cooksey for reporting and refusing to commit a criminal act, Defendants violated

Mississippis public policy exception to at will employment.

DAMAGES

71. Cooksey hereby adopts all previously stated paragraphs as though fully restated herein.

72. The actions of the Defendants have caused substantial damage and injury to Cooksey.

73. Cooksey has suffered emotional distress, the loss of his good name and standing in the

community, and continues to suffer anxiety, worry, and stress as a direct and proximate result

of the Defendants actions.

WHEREFORE, Plaintiff respectfully prays this Court:

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1. Assume jurisdiction over this action;

2. Declare that Defendants actions, as herein described, violated Plaintiffs constitutional rights

under the First and Fourteenth Amendments to the United States Constitution;

3. Award appropriate equitable relief including but not limited to prospective injunctive relief,

declaratory and other injunctive remedies;

4. Award Plaintiffs nominal and actual damages for Defendants violation of their constitutional

and statutory rights;

5. Award Plaintiff compensatory damages, including, but not limited to, those for past and future

pecuniary and non-pecuniary losses, emotional distress, suffering, loss of reputation,

humiliation, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary

losses;

6. Award pre-judgment and post-judgment interest at the highest lawful rate;

7. Award Plaintiff his costs of litigation, including reasonable attorneys fees and expenses,

pursuant to 42 U.S.C. sec. 1983 and/or 20 U.S.C. sec. 1400 et seq.;

8. Grant such other relief to which Plaintiff may be entitled or as this Court deems necessary and

proper; and

9. Require the Defendants to repay the taxpayers for the City of Gautier and Jackson County for

all funds knowingly misspent and misappropriated by the Defendants.

Respectfully submitted this the 1st day of September, 2017.

JERRY COOKSEY
PLAINTIFF

By:____/s/ Daniel M. Waide_________


DANIEL M. WAIDE, MSB # 103543
Daniel M. Waide, (MSB#103543)
1300 HARDY ST.
PO BOX 17738

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HATTIESBURG, MS 39404
601-582-4553 (OFFICE)
601-582-4556 (FAX)
dwaide@jhrlaw.net

CERTIFICATE OF SERVICE

I, Daniel M. Waide, do hereby certify that I electronically filed the foregoing with the
Clerk of court using the CM/ECF system, which will send notification of such filing to all
counsel of record.

This the 1st day of September, 2017.


___/s/ Daniel M. Waide___________
DANIEL M. WAIDE, MSB #103543
Daniel M. Waide, (MSB#103543)
Johnson, Ratliff & Waide, PLLC
1300 HARDY ST.
PO BOX 17738
HATTIESBURG, MS 39404
601-582-4553 (OFFICE)
601-582-4556 (FAX)
dwaide@jhrlaw.net

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