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Gatheright v. Barbour

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

February 7, 2017

LESLY GATHERIGHT PLAINTIFF
v.
HALEY BARBOUR, JIM HOOD, BEN CREEKMORE, LON STALLINGS, HONEY USSERY, MICKEY MALLETTE, CALHOUN COUNTY MISSISSIPPI'S SHERIFF'S OFFICE, DEWAYNE WINTER, and TRACY McGUIRT DEFENDANTS

          MEMORANDUM OPINION GRANTING COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         Presently 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, [1] Dewayne Winter, and Tracy McGuirt (collectively, the "County Defendants").[2] 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.

         I. Factual and Procedural Background

         On 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.[3]

         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 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. ¶ 10.[4]

         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].

         On 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 [44] and memorandum opinion [45] 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.

         On 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 merits.

         On August 29, 2016, Plaintiff filed a motion for clarification [31] 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 [32] 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.

         II. Summary Judgment Standard

         Summary 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.

         The 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))).

         Under 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).

         It is 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. 2007)).

         "[A] '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.

         III. Analysis and Discussion

         Plaintiffs 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. [1] ¶¶ 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.

         According 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.

         The 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. [1] ¶11.

         Defendant 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 [38] 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.

         Plaintiff 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. [1] ¶ 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, 26.[5]

         The County Defendants argue that Plaintiffs claims are barred due to immunity and further that certain claims are time-barred and fail on the merits.[6] For all the reasons stated below, the Court finds that the claims must be dismissed.

         1. Immunity

         The 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.

         The 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)).

         "[A]n 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).

         The 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).[7] 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).

         Plaintiffs 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. [35] 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 [35] 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.

         As demonstrated below, the claims against the County Defendants are barred by several immunity provisions.

         a. Individual Immunity. Mississippi Code 8 11-46-7(2)

         First, 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 ...


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