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Mills v. Adams County Board of Supervisors

United States District Court, S.D. Mississippi, Western Division

June 25, 2018

ANTHONY DUANE MILLS, # 207420 PLAINTIFF
v.
ADAMS COUNTY BOARD OF SUPERVISORS, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE

         This matter is before the Court, sua sponte, for consideration of dismissal. Pro se Plaintiff Anthony Duane Mills brings this action pursuant to 42 U.S.C. § 1983 and the Mississippi Wrongful Conviction and Incarceration Act, Mississippi Code Annotated § 11-44-1. The Court has considered and liberally construed the pleadings. As set forth below, the Court holds that Defendants Adams County Board of Supervisors; Adams County Sheriff Department; State of Mississippi; Adams County; Walter James Mackel; Matthew Will McConnelly; Deselle Davis; Judge Patricia Dunmore; Anthony A. Heidelberg, also known as Anthony H. Brewer; Jerry Brown; Stanley Searcy, Jr.; Tony Nichols; Tim Cotten; Southwest Mental Health; Judge Jack Lazarus; Judge Lillie Blackmon Sanders; Adams County Civil Defense; Stan King; Latanya Renee Mackel; Shane Doherty; Frank Smith; Merit Health; and Jackie Dennis should be dismissed.

         BACKGROUND

         On February 9, 2018, Plaintiff filed the instant action. At the time, he was detained at the Adams County Jail, awaiting trial for felon in possession of a weapon. He alleges that he also has a pending aggravated assault charge. The twenty-nine Defendants include Adams County and its employees; the State of Mississippi; State Judges and prosecutors; Plaintiff's former defense counsel; two hospitals; a Ferriday, Louisiana police officer; and a postal worker. Generally, Plaintiff's claims stem from a series of police encounters and judicial proceedings and an alleged sexual assault.

         First, Plaintiff complains about a series of police encounters. On June 2, 2015, Plaintiff contends Defendant Adams County Deputies Walter James Mackel and Matthew Will McConnelly subjected him to excessive force during an arrest. Plaintiff claims they did so because he was in an interracial marriage. As a result Plaintiff asserts his ear was partially severed but was sewn back on at Defendant Merit Health Hospital. According to him, “an associate” told him two years later that Mackel had placed a microchip in his ear at the time of this incident:

because he didn't want to get caught at my house with my ex-wife. I was told this chip came from the Marines during Mackel's last tour in combat. My associate told me that I was being put all over Facebook via the chip and everyone could see every thing [sic] I do. It's called a mind control chip, ocular or nano implant. If you search it online, it's been done before to people around the world. The federal court calls it gang stalking and domestic terrorism.

Resp. at 15.

         Next, on March 3, 2016, Defendant Adams County Sheriff Travis Patten allegedly tased Plaintiff at his home, when he attempted suicide.

         The following May, Plaintiff asserts that Defendant Stanley Searcy, Jr., an investigator with the Sheriff's Department, attempted to kill Plaintiff with a Taser. When Plaintiff was later arrested, Defendant Major Shane Doherty, of the Adams County Metro Narcotics Unit, allegedly told him, “I heard we lost . . . a micro-chip and I need to get it back.” Id. at 14-15.

         The next encounter occurred on November 17, 2016. While at his mother's house, Plaintiff alleges Defendant Deputies Lee Best and Delayne Bush arrested him without a warrant or court order. Id. at 10. However, Plaintiff elsewhere claims that they arrested him based on a civil commitment order from the Adams County Chancery Court. Id. at 4. Allegedly Bush falsely accused Plaintiff of pointing a gun on them during the arrest.

         Finally, on June 6, 2017, Plaintiff claims he was cleaning up limbs, at the bottom of a hill, behind his house, when he was bitten by a dog, described as a “viscious [sic] K-9.” Id. at 12. Defendant Deputies Dustin Mingee and Dustin Smith subsequently ran down the hill, allegedly, and arrested Plaintiff without a warrant.

         Next Plaintiff complains about judicial cases against him, which include criminal charges and a civil commitment. The first concerns an assault charge. Plaintiff accuses Defendant Deselle Davis, the bailiff with the Adams County Justice Court, of “writing up fake charges against [Plaintiff] with . . . only accusations” of a crime being committed. Id. at 3. Specifically, on July 29, 2016, Davis is accused of accepting and filing a complainant's affidavit, charging Plaintiff with simple assault. 2d Am. Compl. Ex. [11-2]. This charge was later enhanced to aggravated assault, and he was bound over to the grand jury. 2d Am. Compl. [11] at 1. The enhancement was allegedly the result of Defendant Assistant District Attorney Anthony A. Heidelberg's advice to the prosecutor working the assault case.

         In addition to being a state prosecutor, Heidelberg allegedly represented Plaintiff's ex-wife in her and Plaintiff's divorce. He contends the divorce was final on January 25, 2017. Heidelberg purportedly had him arrested on January 1, 2017, on the charge of felon in possession of a weapon, so he could not be present for the divorce proceedings. Plaintiff contends, “[a]s Assistant District Attorney in November 2016 until he took the Municipal Court Judge seat, ” Heidelberg allegedly had “pushed the weapon charge through” the court system. Resp. at 4. Plaintiff had been accused of pointing a gun at deputies, on November 17, 2016. Plaintiff was then sent to a mental hospital. Once released, Defendant Major Jerry Brown of the Sheriff's Department, allegedly signed an arrest warrant for Plaintiff, on December 27. He was arrested on January 1, 2017 and later indicted.

         Defendant Timothy Blalock formerly represented Plaintiff in the pending weapon case. He alleges that Blalock worked with the Court and Sheriff to put Plaintiff in prison or an insane asylum. He accuses Blalock of taking “a bribe in the form of cash or the deed to his property from the Sheriff and/or . . . Heidelberg . . . to not do anything for me.” Id. at 7-8.

         Defendant Judge Lillie Blackmon Sanders presides over the felon in possession case. Plaintiff alleges that she is biased and ignored his motions. He also complains that she has ordered a mental evaluation.

         Next, Plaintiff sues Justice Court Judge Patricia Dunmore, for signing a warrant for “fake charges.” Id. at 3. She and Defendant Assistant District Attorney Tim Cotten are then accused of remanding two cyberstalking and one telephone harassment charge against Plaintiff, rather than acquitting him, in December of 2017. He maintains that Judge Dunmore was motivated by his former interracial marriage and claim that Deputy Mackel had sodomized him.

         Besides the criminal cases, Plaintiff also faced a civil commitment. Because of this, he sues Judge Jack Lazarus for ordering that he be involuntarily committed to the State Mental Hospital in 2016. Plaintiff claims he was committed because of his sexual assault accusation against Deputy Mackel.

         The final set of claims stem from Plaintiff's allegation of sexual assault. Basically Plaintiff alleges that some have failed to investigate this claim and others have mistreated him after he made the claim. Plaintiff first contends that Defendant Adams County Civil Defense of the Sheriff's Department, “did not respond . . . for 30 seconds, ” when Plaintiff called 911 to report the alleged rape on March 3, 2016. Id. at 10. Defendant Jackie Dennis is alleged to be Deputy Mackel's mother and to have worked in dispatch on this date. Investigators Brown and Searcy and Captain Nichols are also accused of refusing to investigate Plaintiff's claim. In addition Plaintiff asserts Nichols threatened to mace him if he ever accused Deputy Mackel again and that he left Plaintiff in a cell for several days. He contends that Defendant Southwest Mental Health “keeps trying to make me be crazy, ” since he reported the alleged rape. Id. at 8. Defendant Stan King of the Ferriday Police Department is accused of trying to frame Plaintiff for murder, in retaliation for reporting the alleged attack. Finally, Deputy Mackel's ex-wife, Defendant Latanya Renee Mackel is alleged to work at the Post Office in Natchez. Plaintiff contends she is tampering with his mail, in order to keep Deputy Mackel from getting in trouble.

         Some of these claims were previously filed in other civil actions and were pending at the time this case was filed. For instance, the June 2, 2015 excessive force claim was raised against Deputy Mackel and McConnelly in Mills v. Mackel, civil action number 5:17cv135-KS-MTP, which is still pending. A microchip claim against Deputy Mackel was raised in the same case. Mills v. Mackel, 5:17cv135-KS-MTP (S.D.Miss. Mar. 26, 2018). The tasing claim was first raised against Searcy in Mills v. Patten, civil action number 5:17cv110-DCB-MTP, and again in Mills v. Searcy, civil action number 5:17cv127-KS-MTP, which are both still pending. The sexual assault claim appears in Patten and Mackel. Mackel, 5:17cv135-KS-MTP (S.D.Miss. Mar. 6, 2018); Mills v. Patten, 5:17cv110-DCB-MTP (S.D.Miss. Nov. 28, 2017). Plaintiff's failure to investigate claims and Nichols's alleged actions are pending in Patten. Id. Plaintiff also previously raised the claim against King in Mills v. Ware-Mills, cause number 5:17cv138- DCB-MTP.

         Plaintiff now proceeds in this case, specifically invoking § 1983. He claims excessive force, racial discrimination, unlawful searches and arrests, sexual assault, failure to investigate, retaliation, and mail tampering. He also complains of the state judicial proceedings. He further sues Sheriff Patten, the Sheriff's Department, and the County for the alleged discrimination, since they employ some of the other Defendants. Plaintiff sues the State, under § 1983, because he contends the Sheriff sometimes represents the State, and, under § 11-44-1, for wrongful incarceration. Finally, Plaintiff sues Frank Smith of the Narcotics Unit but does not allege any facts against him. On April 18, 2018, Plaintiff moved to voluntarily dismiss the Adams County Board of Supervisors.

         DISCUSSION

         The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma pauperis in this Court. The statute reads, in pertinent part, “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an action proceeding under [28 U.S.C. § 1915, a federal court] may consider, sua sponte, affirmative defenses that are apparent from the record even where they have not been addressed or raised.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is authorized to test the proceeding for frivolousness or maliciousness even before service of process or before the filing of the answer.” Id. The Court has permitted Plaintiff to proceed in forma pauperis in this action. His Complaint is subject to sua sponte dismissal under § 1915.

         Plaintiff brings this action, specifically invoking § 1983 and the state Wrongful Conviction and Incarceration Act. His claims arise from police encounters, judicial proceedings, and his sexual assault allegations. He sues the County and its employees, the State and its Judges and prosecutors, private parties, a Louisiana police officer, and a postal worker.

         Adams County and its Employees

         I. The County, Board of Supervisors, and Sheriff's Department

         The Court first addresses the claims against Adams County, its Board of Supervisors, and Sheriff's Department. As Mills moves to voluntarily dismiss the Board of Supervisors, it will be dismissed. This leaves the Sheriff's Department and the County, sued, under ...


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