Doe v. State ex rel. Mississippi Dept. of Corrections

• Decision Date: 06 November 2003
• Docket Number: No. 2002-CA-00135-SCT.,2002-CA-00135-SCT.
• Parties: Jane DOE v. STATE ex rel. The MISSISSIPPI DEPARTMENT OF CORRECTIONS and The State Parole Board.
• Court: Mississippi Supreme Court

859 So.2d 350

Jane DOE v. STATE ex rel. The MISSISSIPPI DEPARTMENT OF CORRECTIONS and The State Parole Board.

No. 2002-CA-00135-SCT.

Supreme Court of Mississippi.

November 6, 2003.

Ron L. Woodruff, Oxford, Jim Waide, Brent Hazzard, attorneys for appellant.

Lawrence Lee Little, Dion Jeffery Shanley, attorneys for appellee.

Before SMITH, P.J., WALLER and COBB, JJ.

WALLER, Justice, for the Court.

¶ 1. The Motion to Withdraw Opinion and Substitute New Opinion, for Instructions to the Clerk of the Court and for Related Relief is granted, the original opinion issued herein is withdrawn, and this opinion is substituted in its place.

¶ 2. Jane Doe sued the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board, under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), for damages sustained when she was raped by Michael M. Adams, a parolee accepted into Mississippi for supervision from the Illinois Department of Corrections. The Lafayette County Circuit Court entered summary judgment in favor of the State. Doe appeals, arguing that her notice of claim was filed prior to the expiration of the MTCA's one-year statute of limitations and that there can be no discretionary immunity under Miss.Code Ann. § 11-46-9(1)(d) for the State where it improperly accepted Adams for parole and its parole officers failed to properly supervise Adams.

FACTS AND PROCEDURAL HISTORY

¶ 3. Michael M. Adams's sordid criminal past makes his release by Illinois perplexing and not surprising, something with which Doe takes great issue. Adams was first accused on September 13, 1990, of stalking a University of Mississippi student for about one year from September of 1989. On August 21, 1990, Adams allegedly raped another University of Mississippi student. The Lafayette County Circuit Court docket indicated that Adams had been bound over to the grand jury; however, he fled Mississippi and was never tried. The case was subsequently retired to the files on May 13, 1996.

¶ 4. Adams had fled to Illinois where he was arrested for theft on June 15, 1991, and aggravated assault on June 25, 1991. On October 26, 1992, he was subsequently sentenced to six years for attempted robbery and burglary. Also, on October 29, 1992, he was sentenced to fourteen years per count to run concurrently for one count of home invasion and two counts of attempted aggravated sexual assault.

¶ 5. The incident leading to the conviction for home invasion and attempted aggravated sexual assault occurred on October 21, 1991, when Adams forced his way into a woman's apartment and attempted to sexually assault her. The woman struck Adams in the head with an ashtray causing him to bleed and thereafter flee the scene. Fingerprint evidence obtained from the scene linked Adams to the incident.

¶ 6. In reports submitted after each of Adams's two convictions, two assistant state's attorneys from Cook County, Illinois, recommended that Adams should be incarcerated as long as possible given his propensity for preying on young women. They also recommended that "[a]ny early release would be highly objectionable."

¶ 7. Adams was, however, considered for parole in July of 1998. He indicated that he would reside with his grandmother in Maple Park, Illinois, but she refused to take him into her home because there were minor girls living with her.

¶ 8. On July 14, 1998, Adams filed for release to reside with his parents in Etta, Mississippi, and had secured a job waiting for him upon his return to Mississippi. Initially, the Mississippi Department of Corrections refused to accept Adams because his transfer request had been sent to the wrong county. Adams's request was thereafter sent to the correct field office and was accepted by Field Officer Stephen Smith via a Reply to Compact Investigation Request on September 16, 1998.

¶ 9. Both Mississippi and Illinois are signatories to the Uniform Act for Out-of-State Parolee Supervision. See Miss.Code Ann. § 47-7-71 (Rev.2000). Known as the "Compact," signatories thereto basically agree that the "receiving state" will assume supervisory responsibilities over parolees and probationers released from the "sending state." It provides in pertinent part:

The contracting states solemnly agree:

(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called "sending state"), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called "receiving state"), while on probation or parole, if

(a) Such person is in fact a resident of or has family residing within the receiving state and can obtain employment there;

(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.

Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.

A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.

(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.

Miss.Code Ann. § 47-7-71 (Rev.2000).

¶ 10. Adams was released from the Illinois prison system on October 11, 1998, with instructions to report to MDOC within 72 hours. The reporting instructions specifically stated that any failure to comply would be considered a violation of his release agreement and a warrant could be issued for Adams's arrest.

¶ 11. It was not until December 16, 1998, nearly two months after Adams had been released from Illinois custody that he reported to Field Officer Smith in Mississippi. Smith never attempted to revoke Adams's parole or seek to have a warrant issued for his arrest. Instead, in reviewing Adams's paperwork, Smith classed Adams as needing "intensive supervision" which consisted of at least one home visit, one office visit, and two "collateral" visits¹ per month. Adams reported for his first office visit on January 20, 1999. Six days later on January 26, 1999, he raped Doe at her Oxford home and was subsequently indicted, tried, and convicted of rape.

¶ 12. Doe filed a notice of claim with the Attorney General of Mississippi pursuant to the MTCA on January 25, 2000, one day shy of the one-year statute of limitations. She subsequently filed suit against the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board on May 1, 2000, within 95 days of her filing of her notice of claim. See Miss.Code Ann. § 11-46-11.

¶ 13. In her complaint, Doe alleged the willful and gross negligence of the State Parole Board and MDOC in receiving Adams for supervision from Illinois on the basis that they should have ascertained Adams's numerous prior convictions, his previous indictment in Lafayette County, and the fact that he could very well sexually assault another woman in the future. She also alleged that the State negligently supervised Adams thereby permitting him to rape her.

¶ 14. The State answered, claiming, inter alia, immunity under the MTCA on the premise that the State was engaged in a discretionary function. See Miss.Code Ann. § 11-46-9(d). The State later amended its answer to include a statute of limitations defense. ¶ 15. The State moved for summary judgment and in support thereof argued that Doe's claim was barred by the one-year statute of limitations because, according to the State, the "tortious, wrongful or otherwise actionable conduct" of Miss. Code Ann. § 11-46-11(3) occurred at the latest on December 16, 1998, the date MDOC accepted Adams for supervision, and not January 26, 1999, the date Doe was raped. The discretionary function argument was again presented.

¶ 16. The Lafayette County Circuit Court granted the State's motion for summary judgment on December 26, 2001, without stating any reasons. Doe appeals and argues her claim should not have been dismissed as being time-barred under Miss.Code Ann. § 11-46-11 or on the basis that the State was immune under the discretionary function exception to liability under Miss.Code Ann. § 11-46-9(1)(d).

STANDARD OF REVIEW

¶ 17. We employ the de novo standard in reviewing a trial court's grant of summary judgment. O'Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

DISCUSSION

I. WHETHER THE STATE IS IMMUNE OR SUBJECT TO LIABILITY.

¶ 18. As a basis for establishing liability on the part of the state, Doe argues both negligent acceptance and supervision. This requires an analysis of whether a private right of action exists and, if so, whether Doe has stated a justiciable claim.

A. Whether the Uniform Act for Out-of-State Parolee Supervision Creates a Private Right of Action.

¶ 19. The general rule for the existence of a private right of action under a statute is that the party...