Ivy v. Merchant, 92-CA-01091-SCT

• Decision Date: 30 November 1995
• Docket Number: No. 92-CA-01091-SCT,92-CA-01091-SCT
• Citation: 666 So.2d 445
• Parties: Arthur Lee IVY v. K.D. MERCHANT and J.M. Whaley.
• Court: Mississippi Supreme Court

Page 445

666 So.2d 445

Arthur Lee IVY v. K.D. MERCHANT and J.M. Whaley.

No. 92-CA-01091-SCT.

Supreme Court of Mississippi.

Nov. 30, 1995.

Arthur Lee Ivy, Parchman, Pro Se.

William E. Ready, Ready & Associates, Meridian, for Appellees.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

SUMMARY OF THE CASE

Appellant, Arthur Lee Ivy, is an inmate at the Mississippi State Penitentiary. On October 23, 1991, he, through an inmate legal assistant, filed a Petition for Writ of Replevin in the circuit court seeking possession of specified items the Appellees/officers seized from his home and also alleging constitutional rights violations. The trial court granted summary judgment for the officers finding that Ivy could not prove essential elements of the replevin claim and also ruling that the doctrines of res judicata and collateral estoppel barred Ivy from pursuing the constitutional violations. Subsequently, the trial court granted Ivy leave to appeal to this Court in forma pauperis but imposed an equitable lien on the items in his petition to cover the expenses of the appeal.

Finding that Ivy failed to prove all of the essential elements in his replevin claim and that the United States District Court for the Southern District of Mississippi has ruled on the constitutional claims asserted, we affirm the grant of summary judgment. However, we reverse and render as to the order granting Ivy leave to appeal in forma pauperis, as we have held that in forma pauperis proceedings in civil cases exist at the trial level only, and affirm the imposition of the equitable lien to pay the costs of this appeal. Nelson v. Bank of Mississippi, 498 So.2d 365 (Miss.1986). In addition, we find Ivy and his legal assistant, Robert E. Tubwell, subject to Rule 38 sanctions as delineated in the Mississippi Rules of Appellate Procedure.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

The affidavits of Appellees, Officers K.D. Merchant and J.M. Whaley, revealed the following facts: On January 18, 1990, Merchant and Whaley, acting on a tip from confidential informants, arranged for an informant to attempt to purchase crack cocaine from Ivy. The officers were familiar with Ivy, having made numerous calls to his home in the past and having previously arrested him for narcotics' violations. The informant purchased $60 worth of crack from Ivy. Thereafter, based upon the information from the informant, the officers obtained warrants for the arrest of Ivy and for the search of his residence. Although they found no cocaine at Ivy's residence, the officers found and seized firearms, as well as numerous items not included in the search warrant. The evidence showed that a freezer filled with meat, food stamps worth $135, $60 in cash found in Ivy's pocket, and $836 in cash found in the home In his answer to Ivy's interrogatories, Officer Merchant stated that Ivy's property was turned into the Meridian Police Department and remains there today. Furthermore, Merchant stated that he had none of the property in his possession. In addition, the officers noted (and the record supported) the fact that Ivy has never requested his property from the City of Meridian.

were seized. The affidavits of Merchant and Whaley indicated that these items were seized based on the officers' knowledge of drug dealing and contraband.

In his Petition for Writ of Replevin, Ivy set out the items seized from his home, the value of these items, and that these officers were the ones who seized said items. The petition also alleged that the items were illegally seized in violation of state and federal law.

The trial court granted summary judgment in favor of the officers ruling that Ivy did not meet his burden of producing admissible evidence as to a genuine issue of material fact as to each issue raised. Specifically, he failed to produce evidence that the officers were in possession of Ivy's property. In addition, the trial court found Ivy was precluded from raising the issues of constitutionality and legality of procedures taken by the doctrines of res judicata and collateral estoppel. The trial court then granted Ivy leave to appeal in forma pauperis to this Court but imposed an equitable lien on the items in the petition.

On November 4, 1992, Ivy filed a suit for damages arising out of this same cause. This action was dismissed with prejudice by the trial court on February 4, 1993. A motion to file an out of time appeal and proceed in forma pauperis in this matter was denied by this Court.

Prior to this suit, Ivy filed a Section 1983 action in federal court against the officers in the instant case, the City of Meridian, and the Meridian Police Department alleging a violation of his constitutional rights in connection with the above search and seizure. The District Court granted summary judgment to all of the defendants and, with regard to the officers in the instant case, held that they were entitled to qualified immunity in this action. Ivy v. City of Meridian, DN E90-0032 (S.D.Miss.1990).

Ivy also filed with the District Court motions to vacate and motions to file an out of time appeal, all of which were denied by the District Court. The Fifth Circuit affirmed the District Court's decision. Ivy v. City of Meridian, 983 F.2d 1062 (5th Cir.1993).

DISCUSSION OF THE LAW

I. Standard of Review

This Court reviews de novo a lower court's grant of summary judgment. Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995); Short v. Columbus Rubber and Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988). Rule 56(c) of the Mississippi Rules of Civil Procedure provides for summary judgment where there are no genuine issues of material fact such that the movant is entitled to judgment as a matter of law. When making this ruling, the Court's duty is to consider the affidavits and all other evidentiary matters such as depositions, admissions, interrogatories, etc. submitted on a Rule 56 Motion. Seymour, 655 So.2d at 894; Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986).

The movant carries the burden of demonstrating that no genuine issue of material fact exists. Short, 535 So.2d at 63-64. This burden is one of production and persuasion, not of proof. Brown v. McQuinn, 501 So.2d 1093, 1095 (Miss.1986). However, if the nonmovant bears the burden of proof at trial on a claim and fails to establish an essential element, then all other facts are immaterial, and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987).

Analysis

The officers argued that Ivy would have the burden at trial of producing facts to establish the allegations in his complaint: (1) description of the personalty; (2) value of each article and the total value of the articles (3) that Ivy is entitled to immediate possession of the property; (4) that the property is in the possession of the officers; and (5) that the officers wrongfully detain said property. Miss.Code Ann. § 11-37-101 (1972). They maintained that Ivy's pleadings of fact and affidavit provided no basis for an inference nor set forth any evidence that these officers wrongfully detain his property, an essential element under § 11-37-101. The record indicated that, by Officer Merchant's responses to Ivy's interrogatories, the personal property, lawfully and constitutionally seized by the police officers, is in the custody of the City of Meridian. Ivy argued that he submitted a well-pleaded complaint and his personal affidavit in opposition to the Motion for Summary Judgment. His affidavit stated that the officers confiscated his property, and it has not been returned to him. He maintained that the critical facts were as follows: (1) that his home and the place where his property was seized was located at 1213 33rd Avenue, Meridian, Mississippi, not 1301 33rd Avenue as stated in the search warrant; (2) that the officers have not come forward with the basis for removing the property; and (3) that if he failed to plead the evidence needed to apply the replevin statute, his pleadings should be held to less stringent standards, because he proceeds pro se. He argued that the trial court should have liberally construed his Petition for Writ of Replevin, and if replevin was not the proper remedy, the trial court should have treated it as a complaint for injunctive relief.

It is clear from the pleadings, affidavits, and interrogatories that Ivy does not meet his burden under § 11-37-101. He has not produced any fact that would indicate the officers are in possession of the property or that they wrongfully took the same, as required by the replevin statute. In fact, the officers' answers to Ivy's interrogatories and their affidavits indicated that the property is in the custody of the Meridian Police Department.

In his brief, Ivy argued that he should not be held to the standard of represented parties and that if replevin was not proper, the court should have fashioned a proper remedy. The Court has previously held that where a prisoner is proceeding pro se, we will take that into account and, in our discretion, credit not so well pleaded allegations so that a prisoner's meritorious complaint may not be lost because inartfully drafted. Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990). For instance, in West v. Combs, 642 So.2d 917 (Miss.1994), an inmate filed a petition for writ of replevin against a correctional officer at Parchman alleging intentional wrongdoing in loss of property following confiscation by prison officials. In Combs, the trial court found that although the action was entitled Petition for Writ of Replevin, the gist of the complaint was that Combs had surrendered property to the officer and he failed to return it. The trial court treated it as an action for wrongful conversion. This Court agreed with the trial judge stating "that a court looks to the...