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Gatheright v. Barbour

United States District Court, N.D. Mississippi, Oxford Division

January 9, 2017



         Presently before the Court in this matter brought by pro se Plaintiff Lesly Gatheright ("Plaintiff) are motions to dismiss pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure filed by Defendant Haley Barbour [14 & 16]; Defendant Jim Hood [18 & 20]; and Defendants Ben Creekmore, Mickey Mallette, Lon Stallings, and Honey Ussery [22 & 24].[1] Upon due consideration, the Court finds that the motions should be granted and the claims dismissed against these Defendants, for the reasons stated below.

         I. Factual and Procedural Background

         On January 5, 2016, Plaintiff, proceeding pro se, initiated this action against Defendants Haley Barbour ("Defendant Barbour"), Jim Hood ("Defendant Hood"), Ben Creekmore ("Defendant Creekmore"), Lon Stallings ("Defendant Stallings"), Honey Ussery ("Defendant Ussery"), Mickey Mallette ("Defendant Mallette"), the Calhoun County Sheriffs Office, Dewayne Winter, and Tracy McGuirt. The case sub judice is related to an earlier case filed by Plaintiff on November 28, 2012 and styled Lesly Gatheright v. Norman Clark et al., 3:12-cv-001111-SA-SAA, which was dismissed on summary judgment grounds on March 31, 2016.[2]

         Plaintiff alleges that "[o]n or about August 27, 2007, [he] purchased a load of sweet potatoes from Mr. [Norman] Clark" and on the same date left a check post-dated for September 11, 2007 in payment in the amount of $8, 280. See Pl.'s Compl. [1] ¶ 7. Plaintiff further alleges that the August shipment of sweet potatoes was rejected by one of Plaintiff s customers "because the sweet potatoes were unwholesome and decaying." Id. ¶ 9. Plaintiff avers that "on or about April 28, 2008, despite the fact that under Mississippi law the issuance of a post-dated check that is later returned for insufficient funds is not a prosecutable offense, " Mr. Clark and the Defendants in the case sub judice, including Barbour, "acted together within their respective official capacities ... to maliciously[, ] invidiously[, ] intentionally[, ] and without just cause, initiate a criminal action against Plaintiff under Miss[issippi] Code Ann[otated] § 97-19-55, by aiding and guiding Mr. Clark to swear to a false Bad Check Affidavit in the Justice Court of Calhoun County, Mississippi" Id. ¶ 10.[3]

         Plaintiff alleges that while he was in Chicago, Illinois for business purposes he was arrested on a Governor's Warrant from the State of Mississippi, and was incarcerated without bond in Chicago for approximately six weeks "for the false and malicious charge that Mr. Clark brought against Plaintiff with the help of the Defendants in this case. Id. ¶ 12. Plaintiff maintains that during his incarceration he experienced "physical illness, extreme hypertension, and mental anguish" and that he "lost his liberty, livelihood[, ] and ability to work and earn a living" and "suffered great embarrassment and loss of reputation." Id. ¶ 13. Plaintiff further maintains that he "lost approximately $100, 000 worth of his business's inventory, which was either stolen, destroyed, or otherwise taken from Plaintiff' during his incarceration. Id. Plaintiff avers that he had "to employ legal counsel in Illinois to guide him through the extradition process." Id. ¶ 14. He further avers that he was transferred to be incarcerated in Mississippi with bond and was able to post bond after spending five days in jail. Plaintiff alleges that he was indicted on or about May 14, 2009 on two counts of False Pretenses in violation of Mississippi Code Annotated §§ 97-19-55 and 97-19-67 in the Circuit Court of Calhoun County, Mississippi, apparently one count for each of two checks that were post-dated to Mr. Clark for sweet potatoes. Count I was dismissed in November of 2011 in Plaintiffs favor, as indicated in the Circuit Court of Calhoun County's Order of Dismissal [1-8]. Count 2 was later dismissed on January 6, 2015, as indicated in the Circuit Court of Calhoun County's Order granting the motion to dismiss [1-9].

         In the case sub judice, Plaintiff asserts the following claims against the Defendants collectively: malicious prosecution, false arrest and imprisonment, abuse of process, and intentional infliction of emotional distress. Plaintiff additionally asserts the following claims against Defendants Barbour, Hood, Creekmore, Stallings, Ussery, and Mallette: Fourth Amendment violation and actual malice in law. Finally, Plaintiff asserts the following claims: a Freedom of Information Act ("FOIA") violation against Defendants Barbour and Hood; a claim against Defendant Barbour for complicity and conspiracy under 18 U.S.C. § 3182; a claim against Defendant Hood for failure to properly supervise Defendant Creekmore, as district attorney, and Defendants Stallings, Ussery, and Mallette, as assistant district attorneys; and a claim against Defendant Creekmore for failure to properly supervise Defendants Stallings, Ussery, and Mallette, as assistant district attorneys.[4]

         On March 8, 2016, the present motions to dismiss were filed by Defendants Barbour [14 & 16]; Hood [18 & 20]; as well as Creekmore, Mallette, Stallings, and Ussery, collectively [22 & 24]. Plaintiff has not filed a response to any of these motions, and the time for doing so has now passed. These matters are ripe for review.

         II. Rule 12(b)(1) and (b)(6) Standards

         As stated above, these Defendants file their motions to dismiss pursuant to Rule 12(b)(1) and (b)(6).

         A Rule 12(b)(1) motion allows a party to challenge the Court's subject matter jurisdiction. " '[A] factual attack under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.' " Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit. Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)).

         The Fifth Circuit has instructed:

A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. In considering a challenge to subject matter jurisdiction, the district court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. Thus, under Rule 12(b)(1), the district court can resolve disputed issues of fact to the extent necessary to determine jurisdiction[.]

Smith v. Reg'l Transit Autk, 756 F.3d 340, 347 (5th Cir. 2014) (quotation marks and citation omitted). In ruling on a Rule 12(b)(1) motion to dismiss, the Court can consider: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016) (internal quotation marks and citation omitted).

         Motions to dismiss pursuant to Rule 12(b)(6) "are viewed with disfavor and are rarely granted." Kocurek v. Cuna Mut. Ins. Soc'y, 459 F.App'x 371, 373 (5th Cir. 2012) (citing Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)). When deciding a Rule 12(b)(6) motion to dismiss, the Court is limited to the allegations set forth in the complaint and any documents attached to the complaint. Walker v. Webco Indus., Inc., 562 F.App'x 215, 216-17 (5th Cir. 2014) (per curiam) (citing Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004)).

         "[A plaintiffs] complaint therefore 'must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." ' " Phillips v. City of Dallas, Tex., 781 F.3d 772, 775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." Webb v. Morella, 522 F.App'x 238, 241 (5th Cir. 2013) (per curiam) (quoting City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (quotation marks omitted)). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id. (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (internal quotation marks omitted)). "Dismissal is appropriate when the plaintiff has not alleged 'enough facts to state a claim to relief that is plausible on its face' and has failed to 'raise a right to relief above the speculative level.' " Emesowum v. Horn. Police Dep't, 561 F.App'x 372, 372 (5th Cir. 2014) (per curiam) (quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955).

         "When a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6) motion, . . . courts must consider the jurisdictional challenge first." McCasland v. City of Castroville, Tex., 478 F.App'x 860, 860 (5th Cir. 2012) (per curiam) (citing Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This " 'prevents a court without jurisdiction from prematurely dismissing a case with prejudice.' " Id. at 860-61 (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)); accord Hitt v. City of Pasadena, Tex., 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).

         III. Analysis and Discussion

         At the outset, the Court acknowledges that Plaintiff asserts his claims are against all Defendants in their official capacities. See Pl.'s Compl. [1] ¶¶ 68-69. However, because Plaintiff is proceeding pro se, the Court will liberally construe his complaint as asserting claims against Defendants in both their official and individual capacities.

         A. Official-Capacity Claims

          As stated, Plaintiffs claims against Defendants are explicitly asserted as official-capacity claims, that is, against Defendant Barbour in his office as former Governor; Defendant Hood in his office as Attorney General; Defendant Creekmore in his office as District Attorney of the Third District; and Defendants Stallings, Ussery, and Mallette, as Assistant District Attorneys of the Third District.

         1. ...

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