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Burroughs v. City of Laurel

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

September 5, 2019

GREG BURROUGHS PLAINTIFF
v.
CITY OF LAUREL, MISSISSIPPI, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons provided below, the Court grants in part and denies in part Defendants' Motion to Dismiss [18]. 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 other respects.

         I. Background [1]

         This 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.

         Weeks 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 [18], which the Court now considers.

         II. Standard of Review

         To 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).

         III. Discussion

         A. State-Law Claims

         1. MTCA Notice Requirement

         First, 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 requirement.

         The 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).

         Plaintiff 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:[2] malicious prosecution, abuse of process, defamation, and intentional infliction of emotional distress.[3]

         Defendants 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).

         Therefore, 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, 2017).[4]

         However, 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.

         2. Personal Liability

         Next, 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 MTCA.

         3. Statute of Limitations

         Defendants 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' accrual.

         First, 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.

         Next, 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 ...


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