Smith v. Luther, Civil Action No. 4:96cv69-D-B (N.D. Miss. 8/__/1996)
| Decision Date | 01 August 1996 |
| Docket Number | Civil Action No. 4:96cv69-D-B. |
| Parties | CHARLES E. SMITH and AUDREY SMITH PLAINTIFFS v. BARNEY LUTHER, in his individual capacity, and the MISSISSIPPI STATE TAX COMMISSION DEFENDANTS. |
| Court | U.S. District Court — Northern District of Mississippi |
Presently before the court is the motion of the defendants to dismiss, or in the alternative, for the entry of summary judgment on their behalf. Finding the motion only partially well taken, the court shall grant it in part and deny it in part.
Robert Sistrunk and Defendant Barney Luther were employed as Special Agents of the Mississippi State Tax Commission ("MSTC") in 1994. On or about October 26 of that year, Sistrunk and Luther were in Bolivar County, Mississippi, seeking to execute on a Distress Warrant issued by the MSTC against the plaintiffs in this cause for their failure to pay a state tax liability. Particularly, the agents were interested in the location of a 1987 Buick automobile owned by the plaintiffs. After once conversing with the plaintiff Charles Smith about the Buick and looking for it, Sistrunk and Luther again confronted Mr. Smith about the location of the Buick while at a used car lot in Cleveland, Mississippi.
Further, the defendants claim that while at the car lot:
Mr. Smith told Officer Luther that he was leaving and got into [an] automobile. Officer Luther told Mr. Smith to get out of the automobile, and told him he would be arrested if he left the scene. Mr. Smith responded by telling the officers to do what they had to do and drove away in what appeared to be a reckless fashion.
Defendants' Brief in Support of Consolidated Motions to Dismiss and for Summary Judgment, p. 3. The plaintiffs submit that this is untrue. While agreeing that they spoke at the car lot and that he left, Mr. Smith states that the officers never informed him that he was under arrest or would be placed under arrest if he attempted to leave.
In any event, after Mr. Smith left the car lot, the officers obtained an arrest warrant from a Cleveland municipal judge for Mr. Smith on three misdemeanor charges: 1) resisting arrest, 2) refusing to comply with the request of a law enforcement officer, and 3) reckless driving. Sistrunk and Luther, accompanied by several other officers, then went to the plaintiffs' home that evening and arrested Mr. Smith on the warrant. Apparently, Mr. Smith pled nolo contendere before the municipal court judge to the reckless driving and failure to comply charges, and the resisting arrest charge was dismissed by motion of the prosecutor. As a result, the municipal court judge fined Mr. Smith and gave him a suspended sentence. Mr. Smith appealed his conviction to the County Court of Bolivar County, Mississippi, where he received a de novo trial and was acquitted of the charge of reckless driving. Further, the judge declared a mistrial on the failure to comply charge, and by subsequent order "remanded to the files" that matter. To the extent of the court's knowledge, the charge has never been reinstated against Mr. Smith.
The plaintiffs then instituted this action, charging the defendants with liability for several intentional torts as well as for violation of their civil rights under 42 U.S.C. § 1983. After the filing of their complaint, the plaintiffs made their initial disclosures as required by this district's Uniform Plan to implement the provisions of the Civil Justice Reform Act. Uniform Plan, Section Four (I)(A)(1)(a). The defendants filed their answer on March 18, 1996, but failed to submit their initial disclosures as required by the Uniform Plan. This court is aware of no attempt by the defendants to seek relief from the requirements of initial disclosure, and by all accounts it appears that the defendants unilaterally decided not to comply.1 On April 24, 1996, the defendants filed their "Motion to Dismiss and for Summary Judgment," which this court takes up today. Not long after, on April 30, 1996, Magistrate Judge Eugene M. Bogen stayed discovery in this action in light of the defendant Luther's anticipated qualified immunity defense.
The undersigned is of the opinion that consideration of a motion for summary judgment is entirely inappropriate at this juncture of the present proceedings. The defendants should not be entitled to block the plaintiffs from discovery and then submit undisclosed materials to the court, leaving the plaintiffs unable to properly respond. As Chief Judge Senter of this district noted on a previous occasion:
In this court's view, it is inappropriate for [the] defendants to gain shelter from discovery under the qualified immunity shield while simultaneously attacking plaintiff with documentary evidence from which he cannot defend himself because of the discovery stay. Where that appears to be the course that defendants of this type are pursuing, the court would suggest that the magistrate judge fashion an appropriate discovery order which will not only protect those asserting the qualified immunity defense but also those faced with . . . motions for summary judgment.
Davis v. Tri-County Narcotics Task Force, Civil Action No. 1:95cv55-S-D (N.D. Miss. Feb. 11, 1996) (Senter, C.J.) (). While the defendant Luther might eventually be entitled to the protection of qualified immunity upon consideration of the merits of this cause, the court will not take up consideration of the matter in a vacuum, nor will the court allow the defendants to "ambush" the plaintiffs with undisclosed evidence. As such, the court will only consider the defendants' motion as a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
A Rule 12(b)(6) motion is disfavored, and it is rarely granted. Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986); Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). Dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it appears an almost certainty that the facts alleged cannot be proved to support the claim, the complaint cannot be dismissed so long as the complaint states a claim. Clark, 794 F.2d at 970; Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984). "To qualify for dismissal under Rule 12(b)(6), a complaint must on its face show a bar to relief." Clark, 794 F.2d at 970; see also Mahone v. Addicks Util. Dist., 836 F.2d 921, 926 (5th Cir. 1988); United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1980), cert. denied, 451 U.S. 1002. Dismissal is appropriate only when the court accepts as true all well-pled allegations of fact and, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. Smith, 897 F.2d 154, 156 (5th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 100-02, 2 L.Ed.2d 80 (1957)); see Mahone, 836 F.2d at 926; McLean v. International Harvester, 817 F.2d 1214, 1217 n.3 (5th Cir. 1987); Jones v. United States, 729 F.2d 326, 330 (5th Cir. 1984). While dismissal under Rule 12(b)(6) ordinarily is determined by whether the facts alleged, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings. Clark, 794 F.2d at 970; Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105.
Where, as here, the state has not consented to suit, "a suit in which the state or one of its agencies is named as a defendant is normally proscribed by the Eleventh Amendment." Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir. 1995) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984)). Federal law claims arising under § 1983 are so precluded. Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986); Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 762 n.13 (5th Cir. 1986); Davis v. Department of Health, 744 F.Supp. 756, 758 n.1 (S.D. Miss. 1990).
However, the plaintiffs argue to the court that the State of Mississippi has indeed waived its Eleventh Amendment immunity as to its liability for the actions of defendant Luther in the case at bar. Specifically, the plaintiffs argue that pursuant to Miss. Code Ann. § 27-7-67, the State "must indemnify and hold harmless a special agent of the Mississippi State Tax Commission [such as Luther] of any liability in the execution of a tax warrant." Plaintiff's Response, ¶ 2. The plaintiffs draw out of this provision a waiver of Eleventh Amendment immunity on behalf of the state, but this court does not agree. In order for a state to waive its immunity under the Eleventh Amendment, the court must determine that the waiver is "stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305-06, 109 L.Ed.2d 264, 272-73, 110 S.Ct. 1868 (1990) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40, 87 L.Ed.2d 171, 105 S.Ct. 3142 (1985)). Because a state does not waive its Eleventh Amendment immunity by consenting to suit in its own courts, the waiver must specify the state's intention to be subject to suit in federal court before it can be effective. Port Auth., 495 U.S. at 306, 109 L.Ed.2d at 273. The language of the Mississippi statute in question is as follows:
§ 27-7-67 Sheriff and special agent not personally liable.
Every warrant issued to a sheriff of any county of...
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