United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
reasons provided below, the Court grants in part and
denies in part Defendants' Motion to Dismiss
. The Court grants the motion with respect to
Plaintiff's state-law abuse of process claim against the
individual Defendants in their individual capacities,
Plaintiff's claim for punitive damages against the City,
and Plaintiff's § 1983 official-capacity claims
against the individual Defendants. The Court also grants the
motion as to any claims arising from Defendants' alleged
testimony before the grand jury, pursuant to Plaintiff's
concession in briefing. The Court denies the motion in all
case arises from a criminal investigation and prosecution in
Laurel, Mississippi. In June 2017, Katherine Sinclair,
Plaintiff's girlfriend, died from a gunshot wound. At the
time of her death, she was in a car parked in Plaintiff's
garage. Plaintiff called 911 and reported that his girlfriend
had shot herself. Officers towed the vehicle, questioned
Plaintiff, and collected evidence. Later that night,
officials asked Plaintiff to give a statement at the police
station and told him that he was not under arrest. Plaintiff
didn't leave the police station until over eighty-six
hours later. Defendants gave Plaintiff a polygraph
examination, subjected him to multiple strip searches, kept
him in solitary confinement, and performed two searches of
his home before they released him. Defendants Michael Reaves
and Josh Welch were police officers employed by the
Defendant, City of Laurel, Mississippi, during these events.
later, a grand jury indicted Plaintiff for the alleged murder
of Sinclair. Plaintiff alleges that the grand jury declined
to indict him upon Defendants' first attempt. He contends
that Defendants ultimately acquired an indictment by
presenting the grand jury with fabricated and/or misleading
evidence. He complains of numerous irregularities in the
investigation and prosecution - particularly with the
polygraph examination, which he contends Defendants knew was
flawed and/or tainted in several respects. A jury eventually
acquitted Plaintiff, but he alleges that Defendants'
malicious dissemination of fabricated and/or misleading
evidence to the press has damaged his reputation and standing
in the community. He claims to have received death threats.
Plaintiff filed this lawsuit, alleging numerous
constitutional and state-law claims against Defendants.
Defendants filed a Motion to Dismiss , which the Court
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Id. “To be plausible, the
complaint's factual allegations must be enough to raise a
right to relief above the speculative level.”
Id. (punctuation omitted). The Court must
“accept all well-pleaded facts as true and construe the
complaint in the light most favorable to the
plaintiff.” Id. But the Court will not accept
as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id.
Likewise, “a formulaic recitation of the elements of a
cause of action will not do.” PSKS, Inc. v. Leegin
Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th
Cir. 2010) (punctuation omitted). “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft
v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173
L.Ed.2d 868 (2009).
MTCA Notice Requirement
Defendants argue that Plaintiff failed to comply with the
Mississippi Tort Claims Act (“MTCA”) and provide
the required notice of his state-law claims. The MTCA
codified the common-law sovereign immunity of Mississippi and
its political subdivisions. Miss. Code Ann. §
11-46-3(1). It “provides the exclusive remedy against a
governmental entity or its employees” under Mississippi
law. Covington County Sch. Dist. v. Magee, 29 So.3d
1, 4 (Miss. 2010). But the MTCA's waiver of sovereign
immunity is subject to numerous conditions, restrictions, and
limitations. Among these is the Act's notice-of-claim
statute provides that “any person having a claim under
this chapter shall proceed as he might in any action at law
or in equity, except that at least ninety (90) days before
instituting suit, the person must file a notice of claim with
the chief executive officer of the governmental
entity.” Miss. Code Ann. § 11-46-11(1). The
Mississippi Supreme Court “strictly applies the
ninety-day notice requirement . . . .” Gordon v.
Rance, 52 So.3d 351, 358 (Miss. 2011). It “is a
hard-edged, mandatory rule, ” id., that
applies “equally to cases in which notice is filed,
notice is filed after the complaint, or the complaint is
filed sooner than ninety days after filing notice.”
Brown v. Sw. Miss. Reg'l Med. Ctr., 989 So.2d
933, 936 (Miss. Ct. App. 2008).
argues that the notice requirement does not apply because his
state-law claims do not fall within the scope of the MTCA.
Plaintiff asserted the following state-law claims against
Defendants Reaves and Welch in their individual
capacities: malicious prosecution, abuse of process,
defamation, and intentional infliction of emotional
Reaves and Welch can not be held personally liable for
“acts or omissions occurring within the course and
scope of [their] duties.” Miss. Code Ann. §
11-46-7(2). However, they “shall not be considered as
acting within the course and scope of [their] employment . .
. for any conduct” constituting “fraud, malice,
libel, slander, defamation or any criminal offense.”
Id.; see also Miss. Code Ann. §
11-46-5(2). Mississippi's courts have held that tort
claims falling within these excluded categories are outside
the scope of the MTCA, Zumwalt v. Jones County Bd. of
Supervisors, 19 So.3d 672, 688 (Miss. 2009), and,
therefore, the notice requirement does not apply to them.
Idom v. Natchez-Adams Sch. Dist., 115 F.Supp.3d 792,
804 (S.D.Miss. 2015).
Plaintiff's defamation claim falls outside the scope of
the MTCA, and the notice requirement does not apply. Miss.
Code Ann. §§ 11-46-7(2), 11-46-5(2). Likewise, the
notice requirement does not apply to Plaintiff's
malicious prosecution claim. See, e.g. Ellis v. Lowndes
County, 2017 WL 6045440, at *6-*7 (N.D. Miss. Dec. 6,
2017). It also doesn't apply to intentional infliction of
emotional distress, see, e.g. O'Reilly v. Univ. of
Miss. Med. Ctr., 2019 WL 2583520, at *3 (S.D.Miss. June
24, 2019), or to malicious interference. See, e.g.
Springer v. Ausbern Const. Co., Inc., 231 So.3d 980,
988-89 (Miss. 2017); Wrecker Works, LLC v. City of
Aberdeen, 2017 WL 5502945, at *9 (N.D. Miss. Nov. 14,
malice is not a required element of abuse of process.
See, e.g. Owens v. Mason, 2018 WL 6580509,
at *5 (S.D.Miss. Dec. 13, 2018). Therefore, abuse of process
is not excluded from the MTCA's definition of course and
scope of employment, and the MTCA's notice requirement
applies to it. See, e.g. Harrison v. Yalobusha
County, 2010 WL 3937964, at *14 (N.D. Miss. Oct. 5,
2010) (dismissing abuse of process claim for failure to
comply with MTCA notice requirement). It appears to be
undisputed that Plaintiff did not comply with the notice
requirement. Also, if abuse of process is not excluded from
the MTCA's definition of course and scope of employment,
Defendants Reaves and Welch cannot be personally liable.
Miss. Code Ann. § 11-46-7(2). Accordingly, the Court
must dismiss Plaintiff's abuse of process claims against
Defendants Reaves and Welch in their individual capacities.
Defendants argue that Defendants Reaves and Welch can not be
personally liable for actions or omissions within the course
and scope of their official duties. Defendants are correct.
See Miss. Code Ann. § 11-46-7(2). But the MTCA
provides that public employees “shall not be considered
as acting within the course and scope of [their] employment .
. . for any conduct” constituting “fraud, malice,
libel, slander, defamation or any criminal offense.”
Id.; see also Miss. Code Ann. §
11-46-5(2). As noted above, Plaintiff's claims of
defamation, malicious prosecution, intentional infliction of
emotional distress, and malicious interference fall within
these categories of torts excluded from the scope of the
Statute of Limitations
also argue that each of Plaintiff's state-law claims is
barred by the applicable statute of limitations. Defendants
contend that the one-year statute of limitations of Miss.
Code Ann. § 15-1-35 applies to each claim, but they
provided no analysis or argument as to the claims'
Plaintiff's defamation claims are subject to a one-year
statute of limitations. Miss. Code Ann. § 15-1-35;
Southern v. Miss. State Hosp., 853 So.2d 1212,
1213-14 (Miss. 2003). A defamation claim accrues on the date
the allegedly defamatory material is published to a third
person or to the public at large . . . .” Lane v.
Strang Commc'ns Co., 297 F.Supp.2d 897, 900 (N.D.
Miss. 2003); see also Fairley v. ESPN, Inc., 879
F.Supp.2d 552, 554-55 (S.D.Miss. 2012). Although Plaintiff
claims “upon information and belief” that
Defendants leaked false and/or misleading information to the
press, Plaintiff did not specify the date on which Defendants
allegedly published defamatory material to third parties or
the public. The statute of limitations is an affirmative
defense. See, e.g. Sun State Oil, Inc. v. Pahwa,
2019 WL 138650, at *2 (S.D.Miss. Jan. 8, 2019). Therefore,
the burden is on Defendants to prove the date on which
Plaintiff's claims accrued, and this issue can not be
resolved in the present motion.
Plaintiff's malicious prosecution claims are subject to a
one-year statute of limitations. Miss. Code Ann. §
15-1-35; Bankston v. Pass Rd. Tire Ctr., Inc., 611
So.2d 998, 1003 (Miss. 1992). A claim of malicious
prosecution accrues on the day the underlying criminal
proceeding has been terminated in favor of the plaintiff.
Jordan v. Premier Entm't Biloxi, LLC, 2014 WL
991733, at *6 (S.D.Miss. Mar. 13, 2014). Plaintiff did not
plead the date on which the underlying criminal proceedings
terminated in his favor, but he represented in briefing - and
Defendants did not deny - that he was acquitted on all
relevant charges in August 2018. Plaintiff filed this action
in April 2019. So, it appears that the malicious prosecution
claim is not barred by the applicable statute of limitations.
Regardless, the statute of limitations is ...