United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING RECONSIDERATION
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is pro se Plaintiff Robert Warren
Triplett, Jr.'s Motion for Reconsideration  of the
Memorandum Opinion and Order of Partial Dismissal . Among
others, the Court dismissed Defendants Laura Tilley, Gia
McLeod, and Joseph Cooley. Triplett asks the Court to
reconsider dismissal of these three Defendants, claiming the
Court committed errors of law. The Court has considered
Plaintiff's submission and the relevant legal authority.
54(b) authorizes a district court to reconsider and reverse
its prior rulings on any interlocutory order ‘for any
reason it deems sufficient.'” United States v.
Renda, 709 F.3d 472, 479 (5th Cir. 2013) (quoting
Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 210-11
(5th Cir. 2010)). This is true “even in the absence of
new evidence or an intervening change in or clarification of
the substantive law.” Id.
first argues the Court committed an error of law by
dismissing the due process claim against Tilley and McLeod,
because Plaintiff now claims they allegedly took his money
“pursuant to the policy, practices and customs of
MDOC.” (Mot. for Recons. at 1). Contrary to what
Triplett now claims on reconsideration, he had pled that
Tilley and McLeod actually violated Mississippi Department of
Corrections (“MDOC”) policy by taking his money.
(Resp. at 1).
next argues that the Court erred in holding there were
adequate State post-deprivation remedies through suits for
conversion and under the Mississippi Constitution's
Takings Clause. Specifically, Triplett argues the Eleventh
Amendment and the Mississippi Tort Claim Act
(“MTCA”) would preclude him “from any
recovery in state courts.” (Mot. for Recons. at 3).
absence of consent to be sued, “States retain immunity
from private suit in their own courts.” Alden v.
Maine, 527 U.S. 706, 754-55 (1999). The MTCA reflects a
limited consent by the State of Mississippi to be sued in its
State courts. Miss. Code Ann. § 11-46-1, et seq.
Sovereign immunity does not bar suits against state officers
in their individual capacities. Alden, 527 U.S. at
756-57. “Even a suit for money . . . may be prosecuted
against a state officer in his individual capacity for
unconstitutional or wrongful conduct fairly attributable to
the officer himself, so long as the relief is sought . . .
from the officer personally.” Id. at 757.
sovereign immunity would not bar a suit against Tilley and
McLeod, but may against the State of Mississippi.
MTCA contains a general waiver of sovereign immunity, but
retains exceptions to that waiver. Miss. Code Ann.
§§ 11-46-5, 11-46-9. The State does not waive
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).
Additionally, the MTCA provides that no governmental:
employee shall be held personally liable for acts or
omissions occurring within the course and scope of the
employee's duties. For the purposes of this chapter an
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
Code Ann. § 11-46-7(2). In other words, if the
employee's conduct constituted fraud, malice, or any
criminal offense except for a traffic violation, the employee
would be liable, but the government would not.
Mississippi Supreme Court held that a conversion claim
“arguably” would be subject to the MTCA,
“so pre-suit notice to the governmental entity of such
a claim generally is required.” Zumwalt v.
Jones Cty. Bd. of Supervisors, 19 So.3d 672, 689
(¶86) (Miss. 2009). Id. (emphasis added). This
was generally the case, the court held, because conversion
“does not require proof of fraud, malice, libel,
slander, or defamation.” Id. The court did not
consider whether any given conversion might also constitute
“any criminal offense.” The court then found
“it unnecessary to address whether Zumwalt failed to
adhere to the MTCA's notice requirement for her
conversion claim, ” because her claim failed on the
merits. Id. at (¶87).
Triplett alleges that Tilley and McLeod intentionally took
too much money out of his account. If this constitutes a
criminal offense, then the State could not be sued for
conversion, but Tilley and McLeod still could. A suit for
conversion against the individual employees would constitute
an adequate post-deprivation remedy. Nickens v.
Melton, 38 F.3d 183, 185 (5th Cir. 1994). If the
conduct, however, is not criminal, then the State could
arguably be sued for conversion, unless the State raised a
further immunity defense under the MTCA. Two such affirmative
defenses are that the State and its employees acting within
the course and scope of their employment are not liable
“for any claim . . . [o]f any claimant who at the time
the claim arises is an inmate of any . . .
penitentiary” or any claim “[a]rising out of any
loss . . . of property of a[n] . . . inmate of a state
institution.” Miss. Code Ann. § 11-46-9(m), (s).
Since Triplett's claim is that he lost property while he
was an inmate, the MTCA would bar the action against the
State, should it raise these defenses. In other words, he
cannot sue the State for conversion, but he may be able to
sue Tilley and McLeod.
Mississippi Takings claim, unlike the conversion claim,
arises under the Mississippi Constitution. That Constitution
provides, in pertinent part:
Private property shall not be taken . . . for public use,
except on due compensation being first made to the owner . .
. and whenever an attempt is made to take private property
for a use alleged to be public, the question whether the
contemplated use be public shall be a judicial question, and,
as such, ...