United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
before the court are the defendants' motions for summary
judgment. Upon due consideration of the motions, responses,
exhibits, and supporting and opposing authority, the court is
ready to rule.
and Procedural Background
plaintiff, Randy Binning, is a professional gambler from Las
Vegas, Nevada. In April of 2013, Binning's colleague,
Rande Thorpe, called and advised that certain “My
Poker” keno games designed by Defendant Bally Gaming,
Inc. (“Bally”) were providing pay outs five times
higher than usual. These high payouts could only be achieved
by using a particular betting sequence that involved
switching denominations. Thorpe further advised that these
particular machines were available at casinos in Joliet,
Illinois, and Tunica, Mississippi.
Binning admits that he was not typically a keno player, he
nonetheless sought out these machines. Initially, Binning
played the keno games available in Las Vegas, but failed to
obtain the desired high payouts. Consequently, he traveled
first to Illinois and played keno over a span of two to three
weeks, winning close to $200, 000. Binning then stored his
winnings in a safety deposit box at an Illinois bank and set
out for Mississippi. While in Mississippi, Binning played
keno for just a few days and won approximately $150, 000.
Binning departed Mississippi quickly so that his actions
would not be discovered by casino personnel.
April 24, 2013, Harrah's employees became aware of the
unusual activity related the keno machines and, consistent
with Mississippi gaming law, notified Defendant Mississippi
Gaming Commission (“MGC”). Harrah's informed
MGC that it was unsure whether the unusually high payouts
were a result of any illegal activity or whether the gaming
software was simply malfunctioning. The following day,
Harrah's notified Bally of the unusual activity.
April 29, 2013, Binning was stopped for a traffic violation
in Arizona while en route back to Las Vegas. After a K-9
alerted twice, officers found $406, 000 stashed in various
places throughout Binning's car. Officers then seized the
money, believing it to be either proceeds of illegal drug
trafficking or theft because Binning could not provide any
documentation for his contention that he won the money at the
casinos. Once the forfeiture proceedings were initiated, an
Arizona judge found probable cause as to theft under both
Mississippi and Illinois statutes.
officials interviewed Binning about his activity in Illinois
and Mississippi. Binning told the officers that he had won
the money playing keno and explained that he utilized a
particular sequence of switching the denominations back and
forth to increase the payouts. Although he had a Players
Advantage Card which he normally used when playing at
Harrah's casinos, Binning chose not to use it while
playing keno because he did not want to be identified. He
further stated that he intentionally kept his keno jackpots
under $1, 200 because jackpots over that amount required a
patron to show identification and get an IRS W-2g form.
Binning also kept transactions below the $3, 000 threshold
for electronic payouts to avoid contact with casino personnel
by cashing out his winnings at an electronic kiosk. Binning
additionally characterized his behavior as an effort
“to be deceptive.”
Mississippi, MGC Agent Amesha Gross traveled to Tunica and,
after viewing video surveillance, learned how to duplicate
the sequence utilized by Binning to increase the payouts. She
then viewed the affected machines, transaction reports,
accounting paperwork, and Ticket In/Ticket Out vouchers.
Gross also interviewed two persons of interest, Leland Sharpe
and Tommy Bryant. Sharpe and Bryant told Gross that Binning
had taught them the keno “scam” in exchange for
thirty percent of their winnings. Further, Gross watched the
video interview of Binning in Arizona and coordinated with
concluding her investigation, Gross believed that Binning had
violated a Mississippi statute which makes it a crime
“to manipulate with the intent to cheat, any component
of a gaming device in a manner contrary to the designed and
normal operational purpose of the component.”
See Miss. Code Ann. § 75-76-301(g). Gross
accordingly submitted an affidavit in support of an arrest
and a warrant for Binning's arrest was issued by a Tunica
County justice court judge on June 27, 2013.
this time, Bally had been conducting its own investigation.
On July 24, 2013, almost a month after the warrant for
Binning's arrest was issued, Bally submitted its Summary
of Findings to MGC. In its report, Bally advised it had
determined that one cause of the unusually high payouts was
an inadvertent “coding error” in the keno
software that could be exploited. Bally did not mention
Binning nor did it reference any illegal activity.
was arrested pursuant to the aforementioned warrant on
January 4, 2014. Nearly a month later, on February 3, 2014, a
grand jury in the Circuit Court of Tunica County,
Mississippi, indicted Binning for violating Mississippi
gaming law. However, on June 30, 2015, the circuit court
dismissed the charges against Binning, finding it was unable
to conclude that his actions “constitute[d] criminal
acts under Mississippi law, ” and pointing to the
dismissal of similar charges that had been filed against
Binning in Illinois.
filed the instant suit on June 27, 2016. He asserts a state
law claim for malicious prosecution against defendants MGC,
Gross, Bally and Caesars Entertainment Corporation
(“Caesars”). Binning further asserts a
constitutional claim under 42 U.S.C. §1983 for unlawful
arrest against Gross. The court previously denied the
defendants' motions to dismiss. Defendants now move for
summary judgment and argue that they are entitled to judgment
as a matter of law.