Delaney v. Miss. Dep't of Pub. Safety

• Decision Date: 24 January 2013
• Docket Number: CIVIL ACTION NO: 3:12CV22 9TSL-MTP
• Court: U.S. District Court — Southern District of Mississippi
• Parties: JOHNNY DELANEY PLAINTIFF v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, WAYNE "RUSTY" MILEY, FORMER COMMISSIONER STEPHEN B. SIMPSON, CREEDE MANSELL, BILLY MCCLURG, AND FICTITIOUS DEFENDANTS X, Y AND Z DEFENDANTS

JOHNNY DELANEYPLAINTIFF

v.MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, WAYNE "RUSTY" MILEY,FORMER COMMISSIONER STEPHEN B. SIMPSON, CREEDE MANSELL, BILLY MCCLURG,AND FICTITIOUS DEFENDANTS X, Y AND ZDEFENDANTS

CIVIL ACTION NO: 3:12CV22 9TSL-MTP

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

SO ORDERED: January 24, 2013

MEMORANDUM OPINION AND ORDER

This cause is before the court on the motion of defendantMississippi Department of Public Safety to dismiss on grounds of Eleventh Amendment immunity and state law tort claims immunity, and on the separate motion of individual defendants Wayne "Rusty" Miley, Stephen B. Simpson(Former Commissioner of the Mississippi Department of Public Safety), Creede Mansell and Billy McClurg to dismiss on grounds of qualified, absolute and state tort claims immunity.PlaintiffJohnny Delaney has responded to both motions and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that defendants' motions should be granted.

Plaintiff, a trooper with the Mississippi Highway Safety Patrol, filed the present action on March 9, 2012, asserting claims under federal and state law relating to criminal chargesbrought against him in 2008 for extortion, which charges were ultimately dismissed in March 2011.

According to plaintiff's complaint, on June 13, 2008, Delaney filed a lawsuit against the Mississippi Department of Public Safety(MDPS), Commissioner Simpson, Miley and one Michael Berthay, asserting claims for race and age discrimination and retaliation, based on allegations he was passed over for numerous promotions on account of his race and/or age and was subjected to a hostile work environment after complaining of discrimination both internally and to the Equal Employment Opportunity Commission.SeeDelaney v. Miss. Dept. of Public Safety, et al., Civil ActionNo. 3:08CV369HTW-LRA.That action was ultimately dismissed in July 2011, pursuant to Federal Rule of Civil Procedure 4(m) for failure to timely serve process and alternatively pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted.That action was pending during all of the events which form the basis of Delaney's claims in this cause.

Plaintiff alleges that on September 30, 2008, defendant MDPS and Walter Davis, Chief Investigator for Mississippi Bureau of Investigation (MBI), along with another MBI agent, interviewed an individual named Jessie Jordan of Lexington, Mississippi, who claimed that Delaney "had engaged in some wrongdoing as to a speeding ticket that Delaney had given him."Delaney alleges thathe cooperated in the ensuing extortion investigation, and that he denied any wrongdoing and furnished the names of persons who could attest to Jordan's actions in trying to get the speeding charge dropped by approaching the justice court clerk and justice court judge.He alleges that despite this information, and even though they knew there was no probable cause to believe he had committed extortion, agents of the MDPS, including the MBI agents involved in the investigation, presented "distorted evidence" to the Holmes County grand jury, which on December 1, 2008, returned an indictment against Delaney for one count of extortion pursuant to Mississippi Code Annotated § 97-11-33.The indictment alleged that Delaney, acting under color of office, promised Jessie Jordan that he would dismiss Jordan's speeding ticket in exchange for cash.

On December 2, Delaney was suspended without pay by former MDPS Commissioner Simpson.¹On December 18, 2008, an administrative hearing was held in reference to Delaney's suspension.Although he appeared at the hearing and asserted his innocence of the charge against him, the suspension without pay was upheld at the conclusion of the hearing.

Later that day, Delaney was arrested on a capias warrant issued by the Holmes County Circuit Clerk.He posted bond and was released the following day, and on December 22, 2008, Delaney waived formal arraignment and entered a plea of not guilty.

Thereafter, on September 16, 2009, Delaney moved to dismiss the indictment, arguing that the State had failed to afford him a probable cause hearing prior to his indictment and arrest, which he contended was mandated by Mississippi Code Annotated § 99-3-28.The Holmes County Circuit Court Judge granted the motion to dismiss, finding "that the probable cause hearing mandated by Section 99-3-28 could not be bypassed by means of an indictment ... [and] that the proper remedy was dismissal with prejudice," since the Plaintiff"would be subjected to double jeopardy" if he were to be indicted again.²After the indictment was dismissed, Delaney was reinstated with pay.

The State appealed the trial court's ruling and on January 13, 2011, the Mississippi Supreme Court reversed the dismissal and reinstated the indictment, holding that Delaney was not entitled to a probable cause hearing under the statute because "[o]nce [he] had been indicted, the need for a hearing pursuant to Mississippi Code Section 99-3-28 was obviated."State v. Delaney, 52 So. 3d 348, 351(Miss.2011).In short, the court held that "the procedural requirements of Section 99-3-28 are inapplicable once an indictment has been returned by a Mississippi grand jury."Id.On January 14, 2011, Delaney was again suspended without pay based on the Supreme Court's decision to reinstate the indictment.Three months later, however, on March 17, 2011, the indictment was dismissed with prejudice, for reasons that have not been disclosed to the court or, it seems, to the parties.

Plaintiff filed the present action on March 9, 2012.In his complaint, plaintiff alleges claims pursuant to 42 U.S.C. § 1983 for the following alleged violations of his constitutional and federal rights: (1)Fourth Amendment seizure; (2)First Amendment retaliation; (3) Fifth and Fourteenth Amendment substantive and procedural due process; (4) discrimination and retaliation under 42 U.S.C. § 1981.Additionally, plaintiff alleges civil conspiracy claims under 42 U.S.C. §§ 1983,1985and1986.Further, plaintiff purports to set forth state law claims for false arrest, malicious prosecution, abuse of process, civilconspiracy and intentional infliction of emotional distress.Defendants seek dismissal of all these claims.

Mississippi Department of Public Safety

MDPS contends it is entitled to Eleventh Amendment immunity with respect to all of plaintiff's federal civil rights claims and that plaintiff fails to state cognizable claims against it under 42 U.S.C. §§ 1981,1983,1985and1986.It further contends plaintiff's state law claims are barred by the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-1 et seq., and/or by the statute of limitations.

The Eleventh Amendment bars "an individual from suing a state in federal court unless the State consents to suit or Congress has clearly and validly abrogated the state's sovereign immunity."Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326(5th Cir.2002)(citations omitted).This immunity "extends to any state agency or entity deemed an alter ego or arm of the state."Id.(internal quotation marks omitted).MDPS is an agency of the State and entitled to Eleventh Amendment immunity absent waiver or abrogation.SeeWamble v. County of Jones, Civil ActionNo. 2:09cv103KS-MTP, 2012 WL 2088820, 5(S.D. Miss.June 8, 2012) ("It has been held numerous times that ... MDPS [is an] arm[] of the state."(citingBrown v. Simpson, 2009 WL 2449898, at *1 n.1(N.D. Miss.Aug. 7, 2009)).

While Eleventh Amendment immunity is not absolute, "[t]he Supreme Court has recognized 'only two circumstances in which an individual may sue a State.First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment....Second, a State may waive its sovereign immunity by consenting to suit.'"Le Clair v. Texas Bd. Criminal Justice, 475 Fed. Appx. 943, 944, 2012 WL 3176313, 1(5th Cir.2012)(quotingCollege Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S. Ct. 2219, 144 L. Ed. 2d 605(1999))."In this second situation, waiver is present if the state voluntarily invokes federal-court jurisdiction or if it makes a 'clear declaration' that it intends to submit to federal jurisdiction."Union Pacific R. Co. v. Louisiana Public Serv. Com'n, 662 F.3d 336, 340(5th Cir.2011)(citingColl. Sav. Bank, 527 U.S. at 675-76, 119 S. Ct. 2219).

There has been no Congressional abrogation of state sovereign immunity as to claims under § 1981, 1983, 1985 or 1986.SeeHines v. Mississippi Dept. of Corrections, 239 F.3d 366, No. 00-60143, 2000 WL 1741624, at *3(5th Cir.Nov. 14, 2000)(unpublished table decision)("Congress has not chosen to abrogate the states' immunity for suits under §§ 1981,1983, and1985(3).")(citations omitted);Bryant v. Military Dept. of State of Miss. ex rel. Miss. Air Nat. Guard, 381 F. Supp. 2d 586, 591(S.D. Miss.2005)("There has been no Congressional abrogation of state sovereign immunityas to claims under § 1983, 1985 or 198[6].")(citations omitted).³Further, the State of Mississippi has not waived its sovereign immunity from liability in suits arising under §§ 1983,1985 or 1986.On the contrary, the Mississippi Tort Claims Act (MTCA), the State's only explicit waiver of sovereign immunity, expressly preserves the State's Eleventh Amendment immunity.The MTCA, which recites that "the 'state' and its 'political subdivisions' ... are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at lawor in equity[,]"Miss. Code Ann. § 11-46-3(1), expressly provides that "[n]othing in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States."

Plaintiff argues that defendants'...