United States District Court, N.D. Mississippi, Oxford Division
SUPERSEDING MEMORANDUM OPINION GRANTING MOTIONS TO
DISMISS ALL CLAIMS AGAINST DEFENDANTS HALEY BARBOUR. JIM
HOOD. BEN CREEKMORE. LON STALLINGS. HONEY USSERY. AND MICKEY
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]. Upon due consideration, the Court finds
that the motions should be granted and the claims dismissed
against these Defendants, for the reasons stated below.
Factual and Procedural Background
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 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.
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.  ¶ 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
Mississippi] 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.
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 ... 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].
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
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. These matters are ripe for review.
Rule 12(b)(1) and (b)(6) Standards
stated above, these Defendants file their motions to dismiss
pursuant to Rule 12(b)(1) and (b)(6).
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)).
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
Smith v. Reg'l Transit Auth., 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).
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)).
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. Hous. Police
Dep't 561 F.App'x 372, 372 (5th Cir. 2014) (per
curiam) (quoting Twombly, 550 U.S. at 555, 570, 127
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).
Analysis and Discussion
outset, the Court acknowledges that Plaintiff asserts his
claims are against all Defendants in their official
capacities. See Pl.'s Compl.  ¶¶
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 in
their offices as Assistant District Attorneys of the Third
Eleventh Amendment strips courts of jurisdiction over claims
against a state that has not consented to suit."
Pierce v. Hearn Indep. Sch. Dist., 600 F.App'x
194, 197 (5th Cir. 2015) (per curiam) (citing Pennhurst
State Sch. & Hosp. v. Halderman,465 U.S. 89,
100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Sovereign
immunity is a broad jurisdictional doctrine prohibiting suit
against the government absent the government's consent.
Sovereign immunity was assumed at common law, brought from
England to the colonies, and existed prior to the
ratification of the United States Constitution. Although the