United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION GRANTING COUNTY DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
before the Court in this matter brought by pro se
Plaintiff Lesly Gatheright ("Plaintiff) is a motion for
summary judgment [28 & 30] jointly filed by Defendants
Calhoun County Sheriffs Department,  Dewayne Winter, and Tracy
McGuirt (collectively, the "County
Defendants"). Upon due consideration, the Court finds
that the motion should be granted and the claims dismissed
against the County Defendants, for the reasons stated below.
Factual and Procedural Background
January 5, 2016, Plaintiff, proceeding pro se,
initiated this action against Defendants Haley Barbour, Jim
Hood, Ben Creekmore, Lon Stallings, Honey Ussery, Mickey
Mallette, the Calhoun County Sheriffs Department, 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
ah, 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 subjudice,
"acted together within their respective official
capacities ... to maliciously[, ] invidiously[, ]
intentionally[J 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. ¶
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].
March 8, 2016, motions to dismiss were filed by Defendant
Barbour [14 & 16]; Defendant Hood [18 & 20]; and
Defendants Creekmore, Mallette, Stallings, and Ussery,
collectively [22 & 24]. Because the motions to dismiss
asserted various forms of immunity, the Court stayed the case
except for additional immunity motion practice. Plaintiff did
not file a response in opposition to the motions to dismiss.
In a Superseding Order  and memorandum opinion  dated
February 6, 2017, the Court granted the motions to dismiss
and dismissed all claims against Defendants Barbour, Hood,
Creekmore, Mallette, Stallings, and Ussery on Rule 12(b)(1)
and (b)(6) grounds.
August 19, 2016, the County Defendants filed the present
motion for summary judgment [28 & 30] concerning the
claims asserted against them in Plaintiffs complaint. The
County Defendants contend in their motion for summary
judgment [28 & 30] that the claims against them are
barred by multiple immunity provisions and expiration of the
statute of limitations. The County Defendants further contend
that several claims asserted against them fail on their
August 29, 2016, Plaintiff filed a motion for clarification
 as to why the County Defendants were able to file their
motion for summary judgment [28 & 30] after the Court
stayed the case. The Magistrate Judge entered an Order 
explaining that the motion for summary judgment asserted
various forms of immunity for the County Defendants. Thus,
because the motion for summary judgment was "additional
immunity motion practice, " it was permitted by the
stay. The Magistrate Judge instructed Plaintiff to file his
response to the motion for summary judgment by September 14,
2016. Plaintiff filed his response to the motion for summary
judgment on September 29, 2016, fifteen days past the
deadline for doing so. The County Defendants then filed a
reply; and Plaintiff filed a sur-rebuttal, without leave of
the Court to do so. These matters are now ripe for review.
Summary Judgment Standard
judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Fed. R. Civ. P. 56(a); Johnston &
Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561
(5th Cir. 2013). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a sufficient showing to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp., 477
U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 323, 106 S.Ct. 2548.
"An issue of fact is material only if its resolution
could affect the outcome of the action." DeBlanc v.
St. Tammany Par. Sch. Bd, 640 F.App'x 308, 312 (5th
Cir. 2016) (per curiam) (quoting Manning v. Chevron Chem.
Co., LLC, 332 F.3d 874, 877 (5th Cir. 2003) (quoting
Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th
Cir. 2002) (internal quotation marks omitted))).
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by . .. affidavits, or by
the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.' "
Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548;
Littlefield v. Forney Indep. Sch. Dist, 268 F.3d
275, 282 (5th Cir. 2001); Willis v. Roche Biomedical
Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995).
axiomatic that in ruling on a motion for summary judgment
"[t]he evidence of the nonmovant is to be believed[ ]
and all justifiable inferences are to be drawn in his
favor." Tolan v. Cotton, ------U.S.___, ___,
134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal
quotation marks omitted)); see, e.g., Ard v.
Rushing, 597 F.App'x 213, 217 (5th Cir. 2014) (per
curiam) (quoting United Fire & Cas. Co. v. Hixson
Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006) (on
summary judgment, " '[w]e view the evidence in the
light most favorable to the non-moving party' ")).
The Court " 'resolve[s] factual controversies in
favor of the nonmoving party, but only where there is an
actual controversy, that is, when both parties have submitted
evidence of contradictory facts.' " See Thomas
v. Baldwin, 595 F.App'x 378, 378 (5th Cir. 2014)
(per curiam) (quoting Antoine v. First Student,
Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal
quotation marks and citation omitted)). "[T]he nonmoving
party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla
of evidence.' " Id. at 380 (quoting
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
'judge's function' at summary judgment is not
'to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.' " Cotton, 134 S.Ct. at 1866
(quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505);
see Stewart v. Guzman, 555 F.App'x 425, 430 (5th
Cir. 2014) (per curiam) (citing Vaughn v. Woodforest
Bank, 665 F.3d 632, 635 (5th Cir. 2011) (In ruling on a
summary judgment motion, "[w]e neither engage in
credibility determinations nor weigh the evidence.")).
With the foregoing standard in mind, the Court turns to the
issues before it.
Analysis and Discussion
claims against the County Defendants are explicitly asserted
as official-capacity claims, that is, against Defendants
Calhoun County Sheriffs Department; Dewayne Winter in his
official capacity as Calhoun County Sheriffs Deputy; and
Tracy McGuirt in her official capacity as Calhoun County
Justice Court Clerk. See Pl's Compl. 
¶¶ 68-69. However, because Plaintiff is proceeding
pro se, the Court will liberally construe his
complaint as asserting claims against the County Defendants
in both their official and individual capacities.
to the alleged facts and documentation attached to the motion
papers, Mr. Clark visited the Calhoun County Sheriffs
Department and advised Defendant Winter, a Calhoun County
Sheriffs Deputy, that Plaintiff "had written him two bad
checks." See Def. Winter's Aff. [30-8]
¶ 2. Defendant Winter advised Mr. Clark "that he
would have to go to the Calhoun County Justice Court to fill
out affidavits against [Plaintiff]." Id. ¶
3. Mr. Clark then went to Calhoun County Justice Court and
informed Defendant McGuirt, the Calhoun County Justice Court
Clerk, that he had received checks from Plaintiff with
insufficient funds. Defendant McGuirt informed Mr. Clark that
he could complete Bad Check Affidavits on those checks,
assisted him in doing so, and Mr. Clark signed Bad Check
Affidavits in her presence on April 25, 2008. Def.
McGuirt's Aff. [30-9] ¶ 3. Defendant McGuirt
maintains that it is a regular part of her job to assist with
the filing of sworn affidavits. Id. ¶ 2.
subject Bad Check Affidavit states that "on or about the
11th day of September, A.D. 2007[, Plaintiff] did willfully
and feloniously, with intent to defraud, make, issue[, ] and
deliver unto NAC Farms Inc." the bad check when "he
. . . had NSF funds on deposit to his credit with the said
Bank of America with which to pay the same . . . and was not
paid by reason of there being NSF funds in said bank"
See Bad Check Aff. [1-1] at 1. The Bad Check
Affidavit does not indicate whether the check in question was
a post-dated check; the affidavit merely indicates that
Plaintiff had insufficient funds in his account to cover the
check. See Id. The foundation of Plaintiffs case is
that Mr. Clark "falsely swore that Plaintiff made,
issued[, ] and delivered the check to Mr. Clark on September
11, 2007, when in fact, on or about August 27, 2007,
Plaintiff made, issued[, ] and delivered the check that was
post-dated for September 11, 2007." Pl.'s Compl. 
McGuirt then entered the Bad Check Affidavit completed by Mr.
Clark into the Calhoun County Justice Court system; she
attests that once an affidavit is signed in her presence, it
is her "usual course of business to create a warrant for
the Justice Court Judge to sign." Def. McGuirt's
Aff. [30-9] ¶ 4. Thus, the Calhoun County Justice Court
Judge then signed warrants for Plaintiffs arrest for
"felony bad check" under Mississippi Code §
97-19-55. See J. Ct. Warrant [30-2] at 1. After
receiving the warrants and attached Bad Check Affidavits at
the Calhoun County Sheriffs Department on April 25, 2008,
Sheriffs Deputy Winter interviewed Mr. Clark in connection
with the charges; his attempts to reach Plaintiff were not
successful, and he "requested that [Plaintiffs]
information be placed on the NCIC system as a wanted
person" and that information was entered on NCIC on
October 16, 2008. See 10/16/2008 Offense/Incident
Report [1-7] at 1; Def. Winter's Aff. [30-8] ¶ 4;
10/16/2008 NCIC Report [30-3] at 1. Defendant Winter attests
that he was then notified by Officer Wayne Stone in Calhoun
County that Plaintiff had been located in Chicago; Defendant
Winter subsequently faxed a copy of the two warrants and
affidavits from the Calhoun County Justice Court to the
Chicago Police Department, and Plaintiff was subsequently
extradited. Def. Winter's Aff. [30-8] ¶¶ 5-6.
Defendant Winter attests that all of these actions were taken
as part of his regular course of business as deputy sheriff
for Calhoun County. Id. ¶ 7. Subsequently, the
Governor's Warrant was issued for "Felony False
Pretense (Bad Check), " see Request for
Interstate Rendition  at 7; the Chicago Police Department
picked up Plaintiff on October 16, 2009; and Assistant
District Attorney Stallings requested extradition to
Mississippi on October 27, 2009. Apparently, in order to
process the extradition, Defendant McGuirt was contacted and
requested to provide certified copies of the affidavits and
arrest warrants and include a Justice Court Judge's and
Justice Court Clerk's certificate. On May 14, 2009,
Plaintiff was indicted on two counts of felony bad check by a
Grand Jury. See Indictment [30-6] at 1-2.
asserts the following claims against the County Defendants
collectively: malicious prosecution, false arrest and
imprisonment, abuse of process, and intentional infliction of
emotional distress. Plaintiff further asserts that Defendant
Calhoun County Sheriffs Department failed to properly
supervise Sheriffs Deputy Dewayne Winter and "proceeded
to allow him to act arbitrarily and illegally against
Plaintiff as a bill collector for a debt, which had been
dismissed in [the] U[nited] S[tates] Bankruptcy Court, "
Pl's Compl.  ¶ 24, and directly avers that
Defendant Winter "[a]cted arbitrarily and illegally
against Plaintiff as a bill collector for a debt, which had
been dismissed in [the] U[nited] S[tates] Bankruptcy Court,
" id ¶ 25. Finally, Plaintiff asserts that
Mr. Clark "swore out a false affidavit as a part of the
first step in initiating a criminal complaint against
Plaintiff... in the presence of [Defendant] McGuirt";
and that Defendant McGuirt "[f]ailed to perform her duly
sworn duty as Justice Court Clerk by notarizing a false
affidavit illegally"; that according to Mr. Clark's
testimony at a hearing in the state court proceeding,
"[Defendant] McGuirt did not inform [Mr. Clark] as to
the content of an affidavit that she advised him to sign,
which is contrary to the duties of a Justice Court
Clerk"; that "subsequent to this action,
[Defendant] McGuirt "then examined and screened this
same affidavit signed by Mr. Clark"; and that
subsequently, "the Mississippi District Attorney's
Office presented this false affidavit to the Grand Jury,
which created the criminal action against Plaintiff by State
of Mississippi officials named as Defendants in this
complaint." Id. ¶¶ 7,
County Defendants argue that Plaintiffs claims are barred due
to immunity and further that certain claims are time-barred
and fail on the merits. For all the reasons stated below, the
Court finds that the claims must be dismissed.
County Defendants first argue that they are immune from suit
due to several immunity provisions in the Mississippi Tort
Claims Act (the "MTCA"). The MTCA provides the
exclusive remedy against a governmental entity or its
employee. Miss. Code Ann. § 11-46-7(1). Thus,
"[a]ny claim filed against a governmental entity and its
employees (for monetary relief) must be brought under [the]
statutory scheme" of the MTCA. Stuckey v. Miss.
Dep't of Trans., No. 3:07-cv-639-TSL-JCS, 2008 WL
1868421, at *2 (S.D.Miss. Apr. 24, 2008); Lang v. Bay St.
Louis/Waveland Sch. Dist, 764 So.2d 1234, 1236 (Miss.
1999). Plaintiff seeks monetary relief on all claims.
Accordingly, Plaintiffs state-law claims against the County
Defendants for malicious prosecution, false arrest and
imprisonment, abuse of process, and intentional infliction of
emotional distress are subject to the MTCA. In addition,
Plaintiffs other allegations, if anything, support state-law
claims that also are subject to the MTCA. See
Pl's Compl.[l]¶ 25-26.
MTCA waives Mississippi's sovereign immunity in
"claims for money damages arising out of the torts of
such 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 subjects
this blanket waiver to numerous exceptions, "
Phillips ex rel Phillips v. Monroe County, Miss.,
311 F.3d 369, 375 (5th Cir. 2002). Waiver of the state's
sovereign immunity is "strictly construed in favor of
the holder of the right, " and the Fifth Circuit has
stated that" 'the MTCA's exemptions to
Mississippi's waiver should be liberally construed in
favor of limiting liability.' " Urban Developers
LLC v. City of Jackson, Miss., 468 F.3d 281, 306 (5th
Cir. 2006) (quoting In re Foust, 310 F.3d 849, 864
(5th Cir. 2002) (citations omitted)).
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). Thus, Mississippi retains its
sovereign immunity with respect to claims of malicious
prosecution and malice in law. Accordingly, to the extent
Plaintiff has attempted to assert claims of malicious
prosecution and malice in law against the County Defendants
in their official capacities, those claims are barred by
Mississippi's sovereign immunity. See Porter v.
Farris, 328 F.App'x 286, 288 (5th Cir. 2009) (per
curiam); Pardue v. Jackson County, No.
1:14-CV-290-KS-MTP, 2016 WL 3024153, at *10 (S.D.Miss. May
25, 2016) (collecting cases).
County Defendants argue that several bases of immunity bar
the false arrest and false imprisonment, abuse of process,
and intentional infliction of emotional distress claims
against Defendants McGuirt and Winter in their individual
capacities, specifically: individual immunity pursuant to
Mississippi Code § 11-46-7(2), judicial action immunity
pursuant to Mississippi Code § ll-46-9(1)(a), law
enforcement immunity pursuant to Mississippi Code §
ll-46-9(1)(c), discretionary-function immunity pursuant to
Mississippi Code § ll-46-9(1)(d), and independent
intermediary immunity pursuant to Mississippi Code §
ll-46-9(1)(f). The County Defendants further argue that
Defendant Calhoun County Sheriffs Department is immune from
suit as it is not a political division within the meaning of
Mississippi Code § 11-46-1(1).
response presents one argument: Defendant McGuirt is not
entitled to immunity from suit, because, according to him,
she had the intent to deceive and defraud. Plaintiff
maintains that due to her actions, Defendants Winter and
Calhoun County Sheriffs Department are also subject to suit.
Plaintiff states: "[R]egardless of the County
Defendants' good faith intentions to follow proper
procedure accordingly concerning the Plaintiffs supposed
violations of Mississippi law, [the] County Defendants
brought the credibility of their good faith intentions into
question when Defendant McGuirt displayed willful deception
and misrepresentation under oath during [her] sworn civil
deposition relative to civil Cause No. 3:12-cv-00111-SA-SAA[,
] and other County Defendants supported her in this
despicable endeavor maliciously." Pl's Resp.
Opp'n to Cty. Defs.' Mot. Summ. J.  at 6.
Plaintiff cites to "Title 1, Secretary of State, Part 5:
Business Services - Notaries Public Part 5 Chapter 5: Notary
Actions, " Rule 5.7, which provides that "[a]
notary shall not perform any official action with the intent
to deceive or defraud." Plaintiff maintains that
Defendant McGuirt "manifested, both blatantly and
maliciously, an intent to deceive when she misrepresented, or
was otherwise deceptive about, her communications with
Defendant. . . Stallings concerning matters relevant to
[Plaintiffs other civil case, 3:12-cv-00111-SA-SAA, that has
been dismissed on summary judgment grounds], during sworn
civil deposition." Id. at 2. Plaintiff
maintains that this "reckless" behavior
"show[ing] an egregious disregard for the health and
safety of the Plaintiff was as follows: Defendant McGuirt
testified in a deposition in the earlier-filed civil case
when asked whether she "had any discussions regarding
this affidavit with anybody, including Mr. Clark" after
the affidavit was signed: "No, sir ... I don't
recall ... Not that I recall." Def. McGuirt's Dep.
Excerpt  at 9. Plaintiff further maintains that Defendant
Stallings testified in a deposition in that same case that he
had contacted Defendant McGuirt to obtain documents to
complete the extradition papers on Plaintiff. Therefore,
Plaintiff maintains in his response that Defendant McGuirt
was dishonest in deposition testimony and that she intended
to deceive Plaintiff by intentionally leaving out testimony
that she had contact with Defendant Stallings to start the
extradition process of Plaintiff. Plaintiff further asserts
in his response that "Defendant McGuirt denied her
relative interactions with Defendant Stallings in her sworn
deposition . . . willfully an[d] egregiously with the support
of other County Defendants ... and this collective behavior
by County Defendants created a malicious prosecution
scenario, which led to [Plaintiffs] subsequent false arrest
and continuous malicious prosecution" in the state-court
criminal prosecution of Plaintiff "cooperatively, by all
County Defendants named herein." Id. at 4.
Plaintiff maintains that Defendant McGuirt's alleged
"willful deception and misrepresentation during sworn
civil deposition was not a lawful act" and thus that the
County Defendants do not qualify for immunity under
Mississippi law. Plaintiff offers no evidentiary support for
this argument other than his own conclusory statements.
demonstrated below, the claims against the County Defendants
are barred by several immunity provisions.
Individual Immunity. Mississippi Code 8 11-46-7(2)
the County Defendants argue that Defendants McGuirt and
Winter are subject to individual immunity under Mississippi
Code § 11-46-7(2), because their alleged acts were taken
in the course and scope of their employment. "[N]o
employee shall be held personally liable for acts or
omissions occurring within the course and scope of the
employee's duties, " Miss. Code Ann. §
11-46-7(2), and there is a "rebuttable presumption"
that a given act is within that scope, Miss. Code Ann. §
11-46-7(7). See Hearn v. Bd. of Sup'rs of Hinds Cty.,
Miss., 575 F.App'x 239, 243 (5th Cir. 2014) (per
curiam) (citing the aforementioned provisions). However,
"an employee shall not be ...