United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
before the court is a motion to dismiss for failure to state
a claim filed by Defendants, The Mississippi Gaming
Commission and Amesha Gross. Upon due consideration of the
motion, response, and complaint, the court is ready to rule.
and Procedural Background
plaintiff, Randy Binning, is a professional gambler from Las
Vegas, Nevada. In April of 2013, Binning allegedly learned
from other casino patrons that keno machines at various
Harrah's casinos were offering better payouts than was
usual. With knowledge of this information, Binning traveled
first to a Harrah's casino in Illinois and played their
machines for a period of approximately eighteen days, winning
a large sum of money. While in Illinois, Binning was
allegedly informed that the Harrah's casinos located in
Tunica, Mississippi, had these same keno machines, and that
they too were paying out unusually high amounts.
soon left Illinois and made his way down to Mississippi.
While in Tunica, Binning played the machines for about four
days and, again, won a significant amount of money. Casino
personnel, however, discovered the unusually large payouts
and disconnected the machines. Because he could no longer
play, Binning departed Mississippi and returned to his home
after disconnecting the machines, casino personnel reported
to the Mississippi Gaming Commission (“MGC”) that
better payouts had been discovered, and that the casino and
Bally Gaming, Inc. (“Bally”), the manufacturer of
the machines at issue, were conducting their own
investigations into the unusual activity. MGC proceeded to
conduct its own independent investigation into the unusual
activity reported by the casino and, as a result of that
investigation, MGC Agent Amesha Gross swore out an affidavit
for Binning's arrest. Consequently, on June 27, 2013, a
warrant for Binning's arrest was issued for the alleged
violation of Section 75-76-301(g) of the Mississippi Code,
charging him with manipulating the keno machines to affect
was eventually arrested pursuant to the aforementioned
warrant on January 4, 2014. Almost a month later, on February
3, 2014, a grand jury in the Circuit Court of Tunica County,
Mississippi, indicted Binning on the charges contained within
the warrant. However, on June 30, 2015, the Tunica County
Circuit Court dismissed the charges against Binning, finding
it was unable to conclude that his actions
“constitute[d] criminal acts under Mississippi law,
” and pointing to the dismissal of similar charges that
had been filed against Binning in Illinois.
a year later, on June 27, 2016, Binning filed the instant
suit. He asserts claims under 42 U.S.C. §1983 against
Gross, contending that she violated his Fourth and Fourteen
Amendment rights due to her involvement in his alleged
unlawful arrest and malicious prosecution. In addition, he
asserts a state law claim for malicious prosecution against
defendants MGC, Gross, Caesars Entertainment Corporation, and
Bally. Defendants Gross and MGC have now filed a motion to
dismiss for failure to state a claim upon which relief can be
complaint must contain a “short and plain statement . .
. showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). For a plaintiff to survive a Rule
12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
motion to dismiss for failure to state a claim tests both the
legal and factual sufficiency of a plaintiff's complaint.
Id. at 679. Though motions to dismiss are
“viewed with disfavor and [are] rarely granted, ”
the burden rests on the plaintiff to prove her claim should
go forward. Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 497 (5th Cir. 2000).
her burden, a plaintiff cannot rest merely on “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Instead, a
plaintiff must demonstrate that facts pleaded allow the court
“to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
556. In deciding whether a plaintiff has met her burden, the
court “must accept as true all of the allegations in
the complaint, ” except for those allegations which are
mere legal conclusions. Ashcroft, at 678. Moreover,
the court views all well-pleaded facts in the light most
favorable to the plaintiff. Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004). Ultimately, a plaintiff's complaint must
“nudge his claims . . . across the line from
conceivable to plausible.” Id. at 680 (citing
Twombly, 550 U.S. at 547).
outset, the court notes that MGC has conceded that its
arguments for dismissal are without merit. Consequently, the
court will limit its analysis to Gross's arguments. In
moving for dismissal, Gross first asserts that she is
entitled to qualified immunity with respect to Binning's
§ 1983 claim. Gross further argues that she is entitled
to immunity on Binning's claim for malicious prosecution
under Mississippi law.