Binning v. Bally Gaming, Inc., CIVIL ACTION NO. 3:16-CV-00146-NBB-RP

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
Docket NumberCIVIL ACTION NO. 3:16-CV-00146-NBB-RP
Decision Date04 January 2018

Presently 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.

Facts and Procedural Background

The 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.

Although 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.

On 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.

On 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.

Arizona 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."

Back in 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 Illinois officials.

After 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.

During 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.

Binning 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.

Binning 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.

Standard of Review

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U .S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to "go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial." Id. at 324. "Unsubstantiated assertions are not competent summary judgment evidence." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324). Further, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

When deciding a motion for summary judgment, the court must view the underlying facts in the "light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). As such, all reasonable inferences must be drawn in favor of the non-movant. Id. Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita, 457 U.S. at 587."Summary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits." Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).


In moving for summary judgment, Defendants MGC and Gross, in her official capacity, contend that they are immune from suit pursuant to the Eleventh Amendment. Defendant Gross additionally argues that she is entitled to qualified immunity on Binning's §1983 claim. Further, all defendants assert that Binning has failed to establish elements necessary to his claim for malicious prosecution.

Eleventh Amendment Immunity

The Eleventh Amendment provides, in pertinent part, that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." U.S. CONST. amend. XI. "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). This immunity has been further extended to protect state agencies when that agency is "an arm of the state," and state officers acting in their official capacities. See McCarthy v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); Daigle v. Gulf State Utilities Co., Local Union Number 2286, et al., 794 F.2d 974, 980 (5th Cir. 1986).

In response to Defendants' immunity argument, Binning asserts that he has brought no federal claims against MGC. While this assertion is true, it matters not because Eleventh Amendment immunity bars both federal and state law claims asserted in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-21 (1984); see also Moore v. Mississippi Gaming Comm'n, 2015 WL 13019615, *2 (N.D. Miss. Nov. 2, 2015); Mississippi Surplus Lines Ass'n v. Mississippi, 384 F. Supp. 2d 982, 985 (S.D. Miss. 2005). Binningadditionally contends that the State of Mississippi has explicitly waived its immunity within the Mississippi Tort Claims Act ("MTCA"). The MTCA, however, unequivocally provides that "nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment." Miss. Code Ann. §...

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