Carlos Moore Oxford (copy)

In this file photo from May 2019, attorney Carlos Moore is surrounded by the Clayton family outside the Lafayette County Courthouse as he announces the family’s plan to file a wrongful death lawsuit against the city of Oxford.

OXFORD • The federal wrongful death lawsuit against the city of Oxford has been paused while the court ponders two issues.

Magistrate Jane Virden issued a stay order this week to consider whether the city and its police chief are eligible for sovereign immunity or qualified immunity.

The U.S. District Court must also rule on a motion to disqualify one of the plaintiffs' attorneys.

The civil suit was filed in early August by the family of Dominique Clayton and names the city of Oxford, Police Chief Jeff McCutchen and former officer Matthew Kinne as defendants. Kinne, 40, pleaded guilty to capital murder for shooting Clayton in May 2019 and was sentenced to life in prison without the chance of parole.

The city of Oxford filed a motion Monday, Sept. 13 to have the the city and police chief dismissed from the lawsuit. Arguments note the municipal defendants are entitled to sovereign immunity or qualified immunity.

The lawsuit claims the city is liable for Kinne's excessive force because of negligent training, supervision and retention. But the lawsuit does not specify any policy or identify any widespread pattern of similar instances. The city also cites state law that says municipalities retain their sovereign immunity when an employee commits "any criminal offense other than traffic violations."

The Clayton family says McCutchen is personally liable for Kinne's actions because he failed to supervise or intervene. Since the chief was not involved in the murder nor had any prior knowledge of the crime, he should be entitled to qualified immunity, Oxford attorney Todd Butler says in the motion.

If the court allows the immunity and dismisses the city and McCutchen as defendants, the only remaining named defendant in the lawsuit will be Kinne. He is currently being housed in the Receiving and Classification unit at the Central Mississippi Correctional Facility in Rankin County.

Virden's stay order halted the majority of activity in the case, including attorney conferences and discovery. The order did not exempt the Sept. 16 deadline for the plaintiffs to respond to the city's motion to disqualify a Los Angeles, California-based attorney from the Clayton legal team.

The city of Oxford argues that attorney James Bryant should be disqualified from the case because he is not licensed in the state and never got temporary permission from the state to participate in the case.

Clayton family lead counsel, Grenada-based attorney Carols Moore, said in his response that while Bryant's name was listed in the pleading, it noted that he was going to seek permission to participate in the case. Moore also said Bryant is currently permitted to participate in two other cases in the Northern District of Mississippi.

Moore argues that the section of the Local Rules governing attorneys cited by the city was amended two years ago to remove wording that non-resident attorneys should be automatically disqualified for failing to obtain permission before appearing in court proceedings.

"Bryant has not made any appearances in any court proceedings, he has not appeared at a deposition or mediation, nor has he prepared and served any court legal documents," Moore said.

Moore feels the disqualification motion was not filed in good faith, but instead was "only meant to vex and harass" the Clayton family and their attorney. For that reason, he asked that the court consider sanctions against the city and McCutchen.

The wrongful death lawsuit claims that Kinne was acting under the color of law when he conducted a welfare check on Clayton, 32, and shot her in the head as she slept in her own bed in May 2019. It alleges Kinne was in uniform and in a marked Oxford Police Department vehicle, making witnesses believe he was there on official business.

The lawsuit claims the city and police department are liable because they hired Kinne despite an allegedly checkered past. The complaint said Kinne violated Clayton’s Fourth and 14th Amendment rights and additionally blames the department for the negligent training, supervision and retention of Kinne.

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