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Ducksworth v. Rook

United States District Court, S.D. Mississippi, Eastern Division

June 18, 2015

JOHNNY LEE DUCKSWORTH Plaintiff,
v.
ZACHARY ROOK, et al. Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

For the reasons below, the Court denies Plaintiff's Motion to Alter or Amend [19], grants Defendants' Motion to Dismiss [22] pursuant to Rule 12(b)(6), and grants Defendants' Motion to Dismiss [29].

I. BACKGROUND

The Court provided the background of this case in its previous opinion. Ducksworth v. Rook, No. 2:14-CV-146-KS-MTP, 2015 U.S. Dist. LEXIS 20563, at *2 (S.D.Miss. Feb. 20, 2015). The Court previously granted in part and denied in part Defendants' Motion to Dismiss [3]. Id. at *14. Specifically, the Court granted the motion as to Plaintiff's § 1985(3) claims, § 1983 municipal liability claims, § 1983 failure to train/supervise claims, claims against the Hattiesburg Police Department, and state-law tort claims. Id. However, the Court offered Plaintiff an opportunity to cure the pleading deficiencies outlined in the opinion. Id.

Plaintiff filed an Amended Complaint [17] on March 6, 2015. Two weeks later, Plaintiff filed a Motion to Alter or Amend [19] the Court's dismissal of his state-law tort claims. Defendants then filed a second Motion to Dismiss [22] pursuant to Rule 12(b)(6), and a Motion to Dismiss [29] pursuant to Heck v. Humphrey [1] and the Rooker-Feldman doctrine.[2] All pending motions are ripe for review.

II. MOTION TO ALTER OR AMEND [19]

Plaintiff originally asserted a wide variety of state-law tort claims: negligence, gross negligence, false arrest, false imprisonment, slander, libel, assault, battery, conversion, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress. Ducksworth, 2015 U.S. Dist. LEXIS 20563 at *8. The Court dismissed most of these claims, citing a variety of reasons. Id. at *10-*14.

First, the Court held that the Mississippi Tort Claims Act ("MTCA")[3] provided the City and the individual Defendants with immunity from liability for Plaintiff's claims of negligence, gross negligence, and negligent infliction of emotional distress. Id. at *10 (citing MISS. CODE ANN. § 11-46-9(1)(c); Bonney v. Leflore County, No. 4:11-CV-107-SA-JMV, 2013 U.S. Dist. LEXIS 42522, at *11-*12 (N.D. Miss. Mar. 26, 2013)). Second, the Court held that Plaintiff's claims of false arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress were barred by the applicable statute of limitations. Id. at *10-*12 (citing MISS. CODE ANN. § 15-1-35). Third, the Court dismissed Plaintiff's claims for libel and slander because he failed to allege any defamatory statements. Id. at *12 (citing Cooper v. Paragon Sys., Inc., No. 5:08-CV-169-DCB-JMR, 2008 U.S. Dist. LEXIS 67761, at *8 (S.D.Miss. Sept. 5, 2008)). Fourth, the Court held that the City and the individual Defendants in their representative or official capacity were immune from liability against Plaintiff's claims for libel, slander, assault, battery, civil conspiracy, false arrest, false imprisonment, and intentional infliction of emotional distress. Id. at *13 (citing MISS. CODE ANN. § 11-46-5(1)-(2) and multiple cases). Finally, the Court dismissed Plaintiff's conversion claim because Plaintiff failed to plead any facts indicating that Defendants had wrongfully possessed, used, or detained his property in exclusion or defiance of his rights. Id. at *13-*14 (citing Wilson v. GMAC, 883 So.2d 56, 68 (Miss. 2004)).

Plaintiff now argues that his claims for false arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress were not barred by the applicable statute of limitations. He contends that the applicable statute of limitations is located at MISS. CODE ANN.§ 11-46-11(3), and that it was tolled pursuant to MISS. CODE ANN. § 11-46-11(3)(a).

"A Rule 59(e) motion calls into question the correctness of a judgment." Templet v. Hydrochem Inc., 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for altering or amending a judgment under Rule 59(e): "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." Williamson Pounders Architects, P.C. v. Tunica County, 681 F.Supp.2d 766, 767 (N.D. Miss. 2008). Rule 59(e) motions are "not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment, " Templet, 367 F.3d at 478, and they "should not be used to... re-urge matters that have already been advanced by a party." Nationalist Movement v. Town of Jena, 321 F.Appx. 359, 364 (5th Cir. 2009). It is "an extraordinary remedy that should be used sparingly." Id. Before filing a Rule 59(e) motion, parties "should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement" with the Court. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990).

As the Court previously noted, the MTCA waived the City's sovereign immunity "from claims for money damages arising out of torts of... governmental entities and the torts of their employees while acting within the course and scope of their employment...." MISS. CODE ANN. § 11-46-5(1). But "an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations." MISS. CODE ANN. § 11-46-5(2). Therefore, the Court held that the City and individual Defendants in their representative or official capacities were immune from liability for Plaintiff's claims of false arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress. Ducksworth, 2015 U.S. Dist. LEXIS 20563 at *13 (citing MISS. CODE ANN. § 11-46-5(1)-(2) and multiple cases).

Of course, the individual Defendants may still be liable in their personal or individual capacity for acts or omissions that were not within the course and scope of their employment - if the tort claims at issue are not otherwise barred. See, e.g. Meaux v. State of Mississippi, No. 1:14-CV-323-KS-RHW, 2015 U.S. Dist. LEXIS 73749, at *11-*17 (S.D.Miss. June 8, 2015). Plaintiff argues that his claims for false arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress are not barred by the applicable statute of limitations because of the tolling provision in MISS. CODE ANN. § 11-46-11(3)(a). However, the MTCA's notice provisions "are not applicable to a government employee sued in his individual capacity for actions not within the scope of his employment." McGehee v. DePoyster, 708 So.2d 77, 78 (Miss. 1998). By definition, a government employee is not "acting within the course and scope of his employment" if his conduct "constituted fraud, malice, libel, slander, defamation, or any criminal offense other than traffic violations, " MISS. CODE ANN. § 11-46-5(2), and each of the claims previously dismissed pursuant to the statute of limitations fall within that definition. See Ducksworth, 2015 U.S. Dist. LEXIS 20563 at *13 (citing multiple cases).

Therefore, the claims at issue fall outside the scope of the MTCA, and they are subject to the general statute of limitations for intentional torts located at MISS. CODE ANN. § 15-1-35.[4] Id. at *10-*12 (citing multiple cases); see also Borgognoni v. City of Hattiesburg, No. 2:13-CV-241-HSO-RHW (S.D.Miss. Mar. 31, 2015), ECF No. 111. Accordingly, the Court properly ...


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