Pardue v. Jackson Cnty.

• Decision Date: 23 April 2015
• Docket Number: CIVIL ACTION NO. 1:14-CV-290-KS-MTP
• Parties: ROBERT PARDUE PLAINTIFF v. JACKSON COUNTY, MISSISSIPPI, et al. DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

ROBERT PARDUE PLAINTIFF v. JACKSON COUNTY, MISSISSIPPI, et al. DEFENDANTS

CIVIL ACTION NO. 1:14-CV-290-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

April 23, 2015

MEMORANDUM OPINION AND ORDER

For the reasons below, the Court grants in part and denies in part Defendants' Motion for Summary Judgment [24]. The Court denies Plaintiff's Motion to Strike [33] as moot. On or before May 7, 2015, Plaintiff may file an Amended Complaint which corrects the pleading deficiencies discussed below.

I. BACKGROUND

Plaintiff alleges that Defendants violated his civil rights through a variety of actions related to an investigation of Plaintiff's alleged possession of child pornography. He asserted claims under 42 U.S.C. § 1983 and state law. The Court previously granted [20] the individual Defendants' Motion to Dismiss [14] Plaintiff's Section 1983 claims against them in their official capacities. Defendants then filed a Motion for Summary Judgment [24] as to Plaintiff's remaining claims, which is ripe for review.

II. MOTION FOR SUMMARY JUDGMENT [24]

As this Court has previously noted, dispositive motions raising the issue of qualified immunity typically fall into two categories: Rule 12(b)(6) motions that challenge the sufficiency of the plaintiff's allegations to establish the deprivation of a clearly established constitutional right, or Rule 56 motions that focus on thereasonableness of the defendant's actions or some other fact-intensive issue. See, e.g. Stark v. Univ. of S. Miss., No. 2:13-CV-31-KS-MTP, 2013 U.S. Dist. LEXIS 145551, at *9-*14 (S.D. Miss. Oct. 8, 2013); Watkins v. Hawley, No. 4:12-CV-54-KS-MTP, 2013 U.S. Dist. LEXIS 93667, at *3-*4 (S.D. Miss. July 3, 2013); Salcido v. Univ. of S. Miss., No. 2:11-CV-KS-MTP, 2013 U.S. Dist. LEXIS 75191, at *3 n. 1 (S.D. Miss. May 29, 2013). Although styled a Motion for Summary Judgment [24], Defendants' motion contains arguments rooted in both Rule 12(b)(6) and Rule 56. The Court will address Defendants' 12(b)(6) arguments, but, for reasons provided below, it declines to address their Rule 56 arguments.

A. Rule 12(b)(6)

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." Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation omitted). "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).

Additionally, "'[h]eightened pleading' is needed in qualified immunity cases. Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs' injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). Plaintiffs must "rest their complaint on more than conclusions alone and plead their case with precision and factual specificity." Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2003). Phrased differently, a "plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity." Backe v. Leblanc, 691 F.3d 645, 648 (5th Cir. 2012). The plaintiff must "speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants." Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995).

1. Malicious Prosecution

Plaintiff asserted malicious prosecution claims under both state and federal law.¹ In Mississippi, the elements of malicious prosecution are: (1) the institution of a proceeding, (2) by or at the insistence of the defendant, (3) the termination of suchproceedings in the plaintiff's favor, (4) malice in instituting the proceedings, (5) want of probable cause for the proceedings, and (6) the suffering of injury or damage as a result of the prosecution. Condere Corp. v. Moon, 880 So. 2d 1038, 1042 (Miss. 2004).

Defendants argue that Plaintiff alleged insufficient facts to support the fourth element: malice in instituting the proceedings. "Malice does not refer to mean or evil intent . . . . Rather, malice in the law of malicious prosecution is a term used in an artificial and legal sense. It connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice." Id. at 1043. "The malice requirement may be satisfied by a finding of a sinister or improper purpose . . . ." Trilogy Commc'ns, Inc. v. Times Fiber Commc'ns, Inc., 47 F. Supp. 2d 774, 781 (S.D. Miss. 1998). Malice can "also be inferred from a finding that the defendant acted in reckless disregard of the other person's rights," Benjamin v. Hooper Electronic Supply Co., 568 So. 2d 1182, 1191 (Miss. 1990), and the "[a]bsence of probable cause for prosecution is circumstantial evidence of malice, although the converse is not necessarily so." Royal Oil Co. v. Wells, 500 So. 2d 439, 444 (Miss. 1986) (citation omitted).

Plaintiff alleged that Defendants arrested and charged him because they "were trying to increase arrests for possession of child pornography in order to win awards and publicity . . . ." That is a purpose "other than that of bringing an offender to justice." Moon, 880 So. 2d at 1043. Therefore, Plaintiff alleged sufficient facts to demonstrate malice in this context. Cf. C & C Trucking Co. v. Smith, 612 So. 2d 1092, 1100 (Miss. 1992) (where there was evidence that trucking company instituted embezzlement proceedings against driver just to get a load delivered, that wassufficient to support jury finding of malice); Strong v. Nicholson, 580 So. 2d 1288, 1293-94 (Miss. 1991) (where defendants admitted that their sole purpose in instituting proceedings was to "get their stuff back," there was sufficient evidence to support a jury's finding of malice); Alradai v. Riverhills Bank, No. 5:06-CV-66-DCB-JMR, 2007 U.S. Dist. LEXIS 49214, at *7-*10 (S.D. Miss. July 5, 2007) (where there was evidence that defendant's subjective goal in instituting proceeding was to obtain an unjustified award, there was a factual dispute as to malice).

Defendants also argue that Plaintiff failed to allege that Defendant Byrd was involved in the acts constituting the alleged malicious prosecution, but Plaintiffs alleged that Defendant Thornton acted "at the direction of Sheriff Mike Byrd." That is sufficient to plead Byrd's involvement. See Brown v. Kisner, 6 So. 2d 611, 192 Miss. 746, 754 (Miss. 1942).

Plaintiff also asserted a malicious prosecution claim arising under federal law. Specifically, he claims that Defendants violated his "right to be free from malicious prosecution as guaranteed by the Fourth and Fourteenth Amendments," and he asserted claims under 42 U.S.C. §§ 1983 and 1985. The Fifth Circuit has noted:

[T]he initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection - the Fourth Amendment if the accused is seized and arrested, for example, or other constitutionally secured rights if a case is further pursued. However, . . . a freestanding 42 U.S.C. § 1983 claim based solely on malicious prosecution [is] not viable. Rather, the claimant must allege that officials violated specific constitutional rights in connection with a malicious prosecution.

Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citing

Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003)). Therefore, to the extent Plaintiff intended to assert a "freestanding 42 U.S.C. § 1983 claim based solely on malicious prosecution," that claim is dismissed. Id.

2. Abuse of Process

Plaintiff asserted abuse of process claims under both state and federal law. Although Defendants briefly addressed the elements of abuse of process under Mississippi law, they provided no argument as to whether Plaintiff had pleaded sufficient facts to satisfy those elements. Therefore, the Court denies Defendants' motion to dismiss with respect to Plaintiff's abuse of process claim under state law.

Plaintiff conceded, however, that the Fifth Circuit does not recognize a "freestanding right to be free from . . . abuse of process." Cevallos v. Silva, 541 F. App'x 390, 394 (5th Cir. 2013) (citing Sisk v. Levings, 868 F.2d 159, 161-62 (5th Cir. 1989)). Therefore, the Court grants Defendants' motion to dismiss as to any Section 1983 claim premised upon the violation of an alleged freestanding right to be free from abuse of process.

3. Intentional Infliction of Emotional Distress

Defendant argue that Plaintiff alleged insufficient facts to state a claim for intentional infliction of emotional distress. A plaintiff may recover on a claim for intentional infliction of emotional distress "[w]here there is something about the defendant's conduct which evokes outrage or revulsion, done intentionally . . . even though there has been no physical injury." Bowden v. Young, 120 So. 3d 971, 980 (Miss. 2013). The defendant's conduct "must be so outrageous in character, and so extremein degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized...