Southern v. Mississippi State Hosp.

• Decision Date: 11 September 2003
• Docket Number: No. 2002-CP-01298-SCT.,2002-CP-01298-SCT.
• Citation: 853 So.2d 1212
• Parties: Willie B. SOUTHERN, Jr. v. MISSISSIPPI STATE HOSPITAL, Paul Jackson, M.D. and Martha Murray, M.D.
• Court: Mississippi Supreme Court

853 So.2d 1212

Willie B. SOUTHERN, Jr. v. MISSISSIPPI STATE HOSPITAL, Paul Jackson, M.D. and Martha Murray, M.D.

No. 2002-CP-01298-SCT.

Supreme Court of Mississippi.

September 11, 2003.

Appellant, pro se. Thomas T. Dunbar, Jackson, William C. Griffin, Gulfport, L. Abraham Rowe, Jr., Jackson, attorneys for appellees.

Before McRAE, P.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the court.

STATEMENT OF THE CASE

¶ 1. Willie B. Southern, Jr. (Southern) was committed by order of the Chancery Court of Hinds County on April 19, 1999, to the Mississippi State Hospital. The affidavit for commitment was brought by Gerald Jones of the Jackson Police Department, as a friend of the court, seeking treatment for Southern. The affidavit alleged that Southern was a possible danger to himself and others and that he had barricaded himself and his two children in a hotel room for a week despite pleas from family and others to come out. The special master's commitment order reflects that Southern was present at the hearing with his attorney.

¶ 2. On June 9, 2002, Southern filed suit against the Mississippi State Hospital at Whitfield in Rankin County and its staff physicians, Dr. Paul Jackson (Dr. Jackson) and Dr. Martha Murray (Dr. Murray), collectively known as the Hospital. The Hospital filed a joint motion to dismiss pursuant to M.R.C.P. 12(b)(6) for failure to state a valid claim upon which relief can be granted. In the motion to dismiss, the Hospital took the position that they were exempt from the liability pursuant to Miss. Code Ann. § 11-46-9(1)(a), Miss.Code Ann. § 11-46-9(1)(d) and Miss.Code Ann. § 11-46-9(1)(m). The Hospital in its motion to dismiss further set forth the defense that Southern's complaint had not been properly filed pursuant to the one-year statute of limitation under Miss.Code Ann. § 11-46-11.

¶ 3. The trial court entered its order granting the Hospital's motion to dismiss. In its order of dismissal, the trial court stated:

The [c]ourt finds that Mississippi Code § 11-46-9(1)(a) exempts a governmental entity and its employees acting within the course and scope of their employment or duties and states "they shall not be liable for any claims arising out of a legislative or judicial action ..." which in this case involves a judicial commitment of the [p]laintiff to the State Hospital. Both the alleged wrongful detention and alleged false diagnosis arise from the Judge's commitment of [p]laintiff. The [c]ourt finds that the [p]laintiff's claims against individual physicians, Paul Jackson, M.D. and Martha Murray, M.D., also should be dismissed as they are immune from suit under Mississippi law since they were employees acting within the scope of their employment with the [s]tate or a[s]tate [a]gency. § 11-46-9(1)(a), (d) and/or (m). Mallery v. Taylor, 805 So.2d 613 (Miss. [Ct. App.] 2002).

The [c]ourt further finds that the [p]laintiff has failed to file his claims within the one year statute of limitations under § 11-46-11 of Mississippi Code Annotated and therefore is barred from maintaining this lawsuit and all of its claims against all [d]efendants. The [c]omplaint avers that [p]laintiff was of sound mind but falsely diagnosed with [b]ipolar [d]isorder ([c]omplaint [p]aragraphs 6, 13, 15, 5).

The [c]ourt finds that the [p]laintiff, Southern, has alleged that he was defamed by the diagnosis of [b]ipolar [d]isorder but has not pled that it has been published to anyone nor has he pled a special harm as a result of a publication of the alleged defamatory diagnosis. Defamation is an intentional tort that would also be subject to the one-year statute of limitations under common law as well as the Mississippi Tort Claims Act. (Miss.Code Ann.§ 15-1-35 states— All actions for assault, assault and battery, maiming, false imprisonment ... and all actions for slanderous words concerning the person or title, for failure to employ, and for libels shall be commenced within one (1) year next after the cause of such action accrued and not after.). The [p]laintiff does not plead a publishing of the alleged defamation nor that he has suffered a special harm from the alleged defamation so the allegation of defamation is not properly pled and as a matter of law should be dismissed. King v. Miss. Power & Light, 244 Miss. 486, 142 So.2d 222, 225 (1962) (It is not sufficient to allege negligence as a mere conclusion of the pleader, but facts must be pleaded showing actual negligence.); McLemore v. McLemore, 163 So.2d[So.] 500 (Miss.1935) (Ultimate essential facts upon which cause of action or affirmative defense thereto is based must be averred but not the items of evidence by which ultimate essential facts are to be proved.).

Under Mississippi [l]aw, the [p]laintiff's claims for intentional infliction of emotional distress also is subject to a one-year statute of limitations under the Mississippi Tort Claims Act as well as Miss.Code Ann.§ 15-1-35.

Additionally, the [c]ourt finds that the [p]laintiff has not pled the necessary facts to support a claim of intentional infliction of emotional distress and that the [p]laintiff failed to plead that the [d]efendant doctors' individual actions caused him harm, but only that he sustained "... physical injuries, mental and emotional trauma ..." as a result of the wrongful commitment. (King, supra, McLemore, supra) The [p]laintiff has not pled any intentional act that would form the basis of a claim of intentional infliction of emotional distress other than a false diagnosis of [b]ipolar I [d]isorder which would be based on his commitment for which the [d]efendants are immune under Miss.Code Ann. § 11-46-1(a), (d) and/or (m). (Mallery, supra). The [c]ourt finds that this claims fails as a matter of law to be actionable under Mississippi law and should be dismissed.

WHEREFORE, PREMISES CONSIDERED, the [d]efendants' [m]otion for [d]ismissal is hereby granted.

DISCUSSION

¶ 4. On appeal, Southern presents a convoluted argument. It is impossible to fully follow Southern's accusations raised on appeal. However, most of Southern's assignments of error appear to be various alleged constitutional violations under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Southern further appears to attempt to reference 42 U.S.C. § 1983 in his brief citing "Right Act of 1871 (42 U.S.C.S. & [sic] 1883 & [sic] 1985 and 1986)." Southern raises these constitutional arguments for the first time on appeal. As such, these constitutional allegations are not properly before this Court. The role of an appellate court is not to be a fact finder but rather determine and apply the law to the facts determined by the trier of fact. In Bender v. North Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss.1994) (citing Patterson v. State, 594 So.2d 606, 609 (Miss. 1992)), this Court held that:

The rule that questions not raised in the lower court will not be reviewed on appeal is particularly true where constitutional questions are involved.

¶ 5. A trial judge cannot be put in error on a matter not presented to him. See Bender. See also Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985)

. This Court

has repeatedly held that issues not raised at trial cannot be raised on appeal. See Parker v. Mississippi Game and Fish Commission, 555 So.2d 725, 730 (Miss. 1989).

¶ 6. Southern further contends that the trial court erred in not allowing him "to proceed with its [his] claim for make-whole [r]elief against [e]vil." The only issue on appeal necessary for this Court's consideration is whether the trial court erred in dismissing Southern's complaint for failure to comply with the statute of limitation.

¶ 7. From Southern's complaint it is difficult to determine what relief exactly he sought from the trial court. However, it appears that Southern attempted to make a claim of medical malpractice, defamation, intentional infliction of emotional distress, mental anguish, loss of business and loss of enjoyment of life resulting from the actions of the state hospital and Drs. Jackson and Murray in connection with his court ordered commitment to Whitfield. Southern sought a judgment for $9,000,000 from each doctor.

¶ 8. Southern was discharged from the Mississippi State Hospital on December 10, 1999, after being committed by the Chancery Court of Hinds County on April 28, 1999. Southern filed his complaint in the Circuit Court of Rankin County on June 19, 2002.

¶ 9. The trial court dismissed Southern's complaint citing various reasons for the dismissal. The trial court stated that Southern had "failed to file his claim within the one year statute of limitations under § 11-46-11 of Mississippi Code Annotated and therefore is barred from maintaining this lawsuit and all its claims against all [d]efendants." We agree.

¶ 10. In Pickens v. Donaldson, M.D., 748 So.2d 684, 687 (Miss.1999) this Court held that:

The MTCA provides:

the exclusive civil remedy against a governmental entity or its employee for acts or

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