United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
cause comes before the court upon the casino and game
manufacturing defendants' motion to dismiss and upon the
defendants Mississippi Gaming Commission and Amesha
Gross' motion to dismiss and for qualified immunity. Upon
due consideration of the motions, responses, and applicable
authority, the court is ready to rule.
and Procedural Background
plaintiffs, Rande and Virginia Thorpe, traveled to
Robinsonville, Mississippi,  in Tunica County in April 2013 to
gamble at Caesars-owned casino properties. The plaintiffs
played a video poker/keno machine manufactured and
distributed by Bally Gaming, Inc. Sometime shortly
thereafter, Caesars employees became aware of unusual
activity related to these machines which were paying out
unusually high amounts. Caesars reported the unusual activity
to the Mississippi Gaming Commission (“MGC”) and
submitted an incident report and later notified Bally of the
unusual activity. Bally began its own investigation into the
matter while MGC agent, defendant Amesha Gross, began an
investigation on behalf of the MGC.
of its investigation, the MGC submitted questions to Bally
regarding the machines and the games' software on May 14,
2013. On June 27, 2013, Gross swore out an affidavit in
support of an arrest warrant for the Thorpes, and a Tunica
County judge issued the arrest warrant. The affidavits
supporting the warrant, sworn to by Gross, charged the
plaintiffs with violating Section 75-76-301(g) of the
Mississippi Code, which makes it illegal “[t]o
manipulate, with the intent to cheat, any component of a
gaming device in a manner contrary to the designed and normal
operational purpose for the component, including, but not
limited to, varying the pull of the handle of a slot machine,
with knowledge that the manipulation affects the outcome of
the game or with knowledge of any event that affects the
outcome of the game.” Miss. Code Ann. §
plaintiffs assert that Bally and Caesars and the other casino
defendants collaborated with the MGC and depended on
information from each other, and that, in that sense, the
investigations were not independent. They allege that the
defendants gathered information, records, and evidence to
submit to the MGC at the same time the defendants were
accusing the plaintiffs of theft. The plaintiffs contend that
Gross, the MGC, Bally employees, and Caesars employees
conspired together to arrest, criminally charge, and indict
the plaintiffs and that they initiated the issuance of the
arrest warrant despite the fact that the investigations were
still pending, that the questions posed by the MGC had not
yet been answered, and in the absence of any evidence of any
illegal act having been committed by the plaintiffs.
According to the plaintiffs, the criminal proceedings
provided an avenue to the defendants to pursue civil
forfeiture proceedings to attempt to recover their financial
losses. They allege that Bally indemnified Caesars for $2,
000, 000.00 for the losses caused by the mis-programmed
machines, and Caesars encouraged Bally to pursue forfeiture
proceedings against the criminal defendants.
later submitted its “summary of findings” and a
letter to the MGC on July 24, 2013, advising that one cause
of the unusually high payouts was an inadvertent coding error
in the software supporting the gaming machines at issue.
Though this report and letter are not currently part of the
record in this case at this Rule 12(b)(6) stage of the
proceedings, according to the plaintiffs, the report and
letter concluded that Bally software engineers involved in
the coding of the machines were unaware of the error, and
there was no evidence that the engineers had any contact with
the plaintiffs. The plaintiffs allege that despite this
information and the alleged knowledge that the plaintiffs
committed no illegal act, Gross and the MGC did not recall or
quash the arrest warrants for the plaintiffs, and the
defendants urged the MGC and Gross, among others, to continue
the investigation and to charge, arrest, indict, and
criminally prosecute the plaintiffs.
plaintiffs learned of the warrants for their arrest in
January 2014 and traveled to Mississippi to turn themselves
in on or about January 22, 2014. The plaintiffs were arrested
and detained and later indicted on February 3, 2014. The
plaintiffs were indicted along with their acquaintance Randy
Binning, who filed a similar action in this court arising
from some of the same facts at issue in this case, but
Binning asserted fewer claims against fewer defendants.
See Binning v. Bally Gaming, Inc., No.
3:16-cv-00146-NBB-RP, 2018 WL 296782 (N.D. Miss. Jan. 4,
2018). This court denied the defendants' motion to
dismiss in that case but ultimately granted summary judgment.
indictment claims that the plaintiffs “did unlawfully,
willfully, and feloniously, claim, collect or take, United
States currency, or anything of value from a gambling game
without having made a wager contingent thereon, or to claim,
collect or take any amount greater than the amount
won.” The plaintiffs alleged that Gross and the
MGC's investigation as well as Bally and Caesars'
investigations combined to form the basis for the indictment
against the plaintiffs.
plaintiffs assert that the defendants fraudulently misled the
judge, grand jury, and prosecutors that the plaintiffs had
committed theft and other criminal conduct by playing the
machines. They further assert that the defendants
deliberately withheld exculpatory information throughout this
process. On June 30, 2015, the Circuit Court of Tunica County
dismissed the charges against the plaintiffs finding as a
matter of law that they had not committed any crime.
plaintiffs filed the present action in this court on June 27,
2016, and their First Amended Complaint on November 14, 2016.
The First Amended Complaint asserts §§ 1983 and
1985 claims for violations of the Fourth and Fourteenth
Amendments as well as claims for malicious prosecution,
negligence, and products liability.
complaint must contain a “short and plain statement . .
. showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
to dismiss under Rule 12(b)(6) are viewed with disfavor and
are rarely granted.” Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). A court must
accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Id.
But the court is not bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678.
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's
claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim.
Lormand, 565 F.3d at 255-57. If there are
insufficient factual allegations to raise a right to relief
above the speculative level or if it is apparent from the
face of the complaint that there is an ...