Binning v. WMS Gaming, Inc. et al

Filing 124

MEMORANDUM OPINION re 123 Order on Motions for Summary Judgment. Signed by Senior Judge Neal B. Biggers on 01/04/2018. (bds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
RANDY BINNING
V.

PLAINTIFF
CIVIL ACTION NO. 3:16-CV-00146-NBB-RP

BALLY GAMING, INC.;
CAESARS ENTERTAINMENT CORPORATION;
THE MISSISSIPPI GAMING COMMISSION;
AMESHA GROSS; and VARIOUS UNKNOWN
CURRENT AND FORMER EMPLOYEES of the
MISSISSIPPI GAMING COMMISSION

DEFENDANTS

MEMORANDUM OPINION
Presently before the court are the defendants’ motions for summary judgment. Upon due
consideration of the motions, responses, exhibits, and supporting and opposing authority, the
court is ready to rule.
Facts and Procedural Background
The plaintiff, Randy Binning, is a professional gambler from Las Vegas, Nevada. In
April of 2013, Binning’s colleague, Rande Thorpe, called and advised that certain “My Poker”
keno games designed by Defendant Bally Gaming, Inc. (“Bally”) were providing pay outs five
times higher than usual. These high payouts could only be achieved by using a particular betting
sequence that involved switching denominations. Thorpe further advised that these particular
machines were available at casinos in Joliet, Illinois, and Tunica, Mississippi.
Although Binning admits that he was not typically a keno player, he nonetheless sought
out these machines. Initially, Binning played the keno games available in Las Vegas, but failed
to obtain the desired high payouts. Consequently, he traveled first to Illinois and played keno
over a span of two to three weeks, winning close to $200,000. Binning then stored his winnings
in a safety deposit box at an Illinois bank and set out for Mississippi. While in Mississippi,

Binning played keno for just a few days and won approximately $150,000. Binning departed
Mississippi quickly so that his actions would not be discovered by casino personnel.
On April 24, 2013, Harrah’s employees became aware of the unusual activity related the
keno machines and, consistent with Mississippi gaming law, notified Defendant Mississippi
Gaming Commission (“MGC”). Harrah’s informed MGC that it was unsure whether the
unusually high payouts were a result of any illegal activity or whether the gaming software was
simply malfunctioning. The following day, Harrah’s notified Bally of the unusual activity.
On April 29, 2013, Binning was stopped for a traffic violation in Arizona while en route
back to Las Vegas. After a K-9 alerted twice, officers found $406,000 stashed in various places
throughout Binning’s car. Officers then seized the money, believing it to be either proceeds of
illegal drug trafficking or theft because Binning could not provide any documentation for his
contention that he won the money at the casinos. Once the forfeiture proceedings were initiated,
an Arizona judge found probable cause as to theft under both Mississippi and Illinois statutes.
Arizona officials interviewed Binning about his activity in Illinois and Mississippi.
Binning told the officers that he had won the money playing keno and explained that he utilized
a particular sequence of switching the denominations back and forth to increase the payouts.
Although he had a Players Advantage Card which he normally used when playing at Harrah’s
casinos, Binning chose not to use it while playing keno because he did not want to be identified.
He further stated that he intentionally kept his keno jackpots under $1,200 because jackpots over
that amount required a patron to show identification and get an IRS W-2g form. Binning also
kept transactions below the $3,000 threshold for electronic payouts to avoid contact with casino
personnel by cashing out his winnings at an electronic kiosk. Binning additionally characterized
his behavior as an effort “to be deceptive.”

2

Back in Mississippi, MGC Agent Amesha Gross traveled to Tunica and, after viewing
video surveillance, learned how to duplicate the sequence utilized by Binning to increase the
payouts. She then viewed the affected machines, transaction reports, accounting paperwork, and
Ticket In/Ticket Out vouchers. Gross also interviewed two persons of interest, Leland Sharpe
and Tommy Bryant. Sharpe and Bryant told Gross that Binning had taught them the keno
“scam” in exchange for thirty percent of their winnings. Further, Gross watched the video
interview of Binning in Arizona and coordinated with Illinois officials.
After concluding her investigation, Gross believed that Binning had violated a
Mississippi statute which makes it a crime “to manipulate with the intent to cheat, any
component of a gaming device in a manner contrary to the designed and normal operational
purpose of the component.” See Miss. Code Ann. § 75-76-301(g). Gross accordingly submitted
an affidavit in support of an arrest and a warrant for Binning’s arrest was issued by a Tunica
County justice court judge on June 27, 2013.
During this time, Bally had been conducting its own investigation. On July 24, 2013,
almost a month after the warrant for Binning’s arrest was issued, Bally submitted its Summary of
Findings to MGC. In its report, Bally advised it had determined that one cause of the unusually
high payouts was an inadvertent “coding error” in the keno software that could be exploited.
Bally did not mention Binning nor did it reference any illegal activity.
Binning was arrested pursuant to the aforementioned warrant on January 4, 2014. Nearly
a month later, on February 3, 2014, a grand jury in the Circuit Court of Tunica County,
Mississippi, indicted Binning for violating Mississippi gaming law. However, on June 30, 2015,
the circuit court dismissed the charges against Binning, finding it was unable to conclude that his
actions “constitute[d] criminal acts under Mississippi law,” and pointing to the dismissal of
similar charges that had been filed against Binning in Illinois.
3

Binning filed the instant suit on June 27, 2016. He asserts a state law claim for malicious
prosecution against defendants MGC, Gross, Bally and Caesars Entertainment Corporation
(“Caesars”). Binning further asserts a constitutional claim under 42 U.S.C. §1983 for unlawful
arrest against Gross. The court previously denied the defendants’ motions to dismiss.
Defendants now move for summary judgment and argue that they are entitled to judgment as a
matter of law.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). On a motion for summary judgment, the movant has the initial burden of
showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U .S. 317,
325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to
“go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue
for trial.” Id. at 324. “Unsubstantiated assertions are not competent summary judgment
evidence.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing
Celotex, 477 U.S. at 324). Further, the non-movant “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
When deciding a motion for summary judgment, the court must view the underlying facts
in the “light most favorable to the party opposing the motion.” United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962). As such, all reasonable inferences must be drawn in favor of the nonmovant. Id. Before finding that no genuine issue for trial exists, the court must first be satisfied
that no rational trier of fact could find for the non-movant. Matsushita, 457 U.S. at 587.

4

“Summary judgment, although a useful device, must be employed cautiously because it is a final
adjudication on the merits.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).
Analysis
In moving for summary judgment, Defendants MGC and Gross, in her official capacity,
contend that they are immune from suit pursuant to the Eleventh Amendment. Defendant Gross
additionally argues that she is entitled to qualified immunity on Binning’s §1983 claim. Further,
all defendants assert that Binning has failed to establish elements necessary to his claim for
malicious prosecution.
Eleventh Amendment Immunity
The Eleventh Amendment provides, in pertinent part, that “the judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend.
XI. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not
be sued by private individuals in federal court.” Board of Trustees of University of Alabama v.
Garrett, 531 U.S. 356, 363 (2001). This immunity has been further extended to protect state
agencies when that agency is “an arm of the state,” and state officers acting in their official
capacities. See McCarthy v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); Daigle v. Gulf State
Utilities Co., Local Union Number 2286, et al., 794 F.2d 974, 980 (5th Cir. 1986).
In response to Defendants’ immunity argument, Binning asserts that he has brought no
federal claims against MGC. While this assertion is true, it matters not because Eleventh
Amendment immunity bars both federal and state law claims asserted in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-21 (1984); see also Moore v.
Mississippi Gaming Comm’n, 2015 WL 13019615, *2 (N.D. Miss. Nov. 2, 2015); Mississippi
Surplus Lines Ass’n v. Mississippi, 384 F. Supp. 2d 982, 985 (S.D. Miss. 2005). Binning
5

additionally contends that the State of Mississippi has explicitly waived its immunity within the
Mississippi Tort Claims Act (“MTCA”). The MTCA, however, unequivocally provides that
“nothing contained in this chapter shall be construed to waive the immunity of the state from suit
in federal courts guaranteed by the Eleventh Amendment.” Miss. Code Ann. § 11-46-5(4). The
court also notes that Binning does not dispute that Defendant MGC is an arm of the state nor that
Gross, as an MGC agent, was working in her official capacity at all relevant times. See Moore v.
Mississippi Gaming Comm’n, 2016 WL 5477673 *10 (N.D. Miss. Sept. 29, 2016); Sullivan v.
Boyd Tunica, Inc., 2007 WL 541619 (N.D. Miss. Feb. 16, 2007).
For these reasons, the court finds that Defendants MGC and Gross are entitled to
Eleventh Amendment immunity. Accordingly, the court finds that Binning’s claims against
Defendants MGC and Gross, in her official capacity, should be dismissed.
Qualified Immunity
Defendant Gross additionally argues that she is entitled to qualified immunity on
Binning’s §1983 claim for unlawful arrest. Section 1983 authorizes suits against any individual
who, acting under color of state law, “subjects, or causes to be subjected, any citizen of the
United States . . . the deprivation of any rights, privileges, or immunities secured by the
Constitution and law.” 42 U.S.C. §1983. “Qualified immunity protects public officials from suit
unless their conduct violates a clearly established constitutional right.” Mace v. City of
Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Once the defense of qualified immunity has been
raised, the burden shifts to the plaintiff to rebut the defense as courts do “not require that an
official demonstrate that he did not violate clearly established federal rights,” rather, “our
precedent places that burden upon the plaintiffs.” Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.
1997) (citing Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992)).

6

When qualified immunity has been asserted, as has been done here, the court must make
two determinations. First, the court must determine whether the plaintiff has produced sufficient
evidence to raise a genuine issue of material fact suggesting that the defendant’s conduct violated
an actual constitutional right. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)). If so, the court must then
consider whether the defendant’s actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. Id. (citing Freeman v. Gore, 483 F.3d
404, 411 (5th Cir. 2007)).
At the outset, the court must note that Binning’s response completely fails to address
Gross’ qualified immunity argument. Despite this deficiency, the court will consider the merits
of Gross’ asserted defense. It is well-settled that the right to be free from an unlawful arrest is a
clearly established constitutional right. See Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007);
Brown v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001); Sorenson v. Ferrie, 134 F.3d 325, 327 (5th
Cir. 1998). No violation of the right to be free from an unlawful arrest has occurred, however,
when it is supported by probable cause. Sorenson, 134 F.3d at 328. Further, when an arrest is
made under the authority of a properly issued warrant, “the arrest is simply not [an unlawful]
arrest.” Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982) (citing Rodriguez v. Ritchey, 556
F.2d 1185 (5th Cir. 1977)).
Moreover, the independent intermediary doctrine provides that if the facts supporting an
arrest are put before an intermediary such as a grand jury, the intermediary’s decision to return
an indictment “breaks the causal chain and insulates the initiating party.” Buehler v. City of
Austin/Austin Police Dep’t, 824 F.3d 548, 553(5th Cir. 2016) (citing Hand v. Gary, 838 F.2d
1420, 1427 (5th Cir. 1988) (quoting Smith, 670 F.2d at 526)). The doctrine applies “even if the
independent intermediary’s action occurred after the arrest, and even if the arrestee was never
7

convicted of any crime.” Id. (citing Russell v. Altom, 546 F. App’x 432, 434 (5th Cir. 2013);
Taylor v, Gregg, 36 F.3d 453, 455, 456-57 (5th Cir. 1994)). The doctrine is inapplicable only
when “it can be shown that the deliberations of [the] intermediary were in some way tainted by
the actions of the defendant.” Hand, 838 F.2d at 1428. The burden is placed upon the plaintiff
to show that the defendant’s actions tainted the intermediary’s deliberations. See Jennings v.
Patton, 644 F.3d 297, 301 (5th Cir. 2011).
In the instant case, the record demonstrates that a warrant for Binning’s arrest was issued
by a Tunica County justice court judge. Binning does not allege nor does the record suggest any
impropriety in the issuance of that warrant.

The record further demonstrates that a Tunica

County grand jury returned an indictment against Binning. Binning does not allege that Gross
presented false or misleading information to the grand jury nor does the record contain any
evidence indicating that the grand jury proceedings were tainted by Gross’ actions.
In addition to the aforementioned issuance of an arrest warrant and return of an
indictment, Gross conducted a thorough investigation of Binning’s actions. Her investigation
included traveling to the casinos, viewing video surveillance, learning how to duplicate the
sequence used by Binning to manipulate the keno games, interviewing accomplices, and
coordinating with authorities in Illinois and Arizona. Further, the statute under which Gross
swore out an affidavit for Binning’s arrest has never been construed by a Mississippi appellate
court and, consequently, Gross had no guidance as to what actions were necessary to constitute a
violation.
In sum, “the qualified immunity standard ‘gives ample room for mistaken judgments’ by
protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”
Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (quoting Malley v. Briggs, 475 U.S. 335,
343 (1986)). Based on the foregoing discussion, the court finds that Binning has failed to carry
8

his heavy burden in demonstrating that Gross violated any of his clearly established
constitutional rights. The court, therefore, finds that Gross is entitled to qualified immunity and
that Binning’s §1983 claim for unlawful arrest should be dismissed.
State-Law Claim for Malicious Prosecution
To establish a claim for malicious prosecution under Mississippi law, the plaintiff must
prove the following six elements by a preponderance of the evidence:
(a)
(b)
(c)
(d)
(e)
(f)

The institution of a proceeding,
By, or at the insistence of the defendant,
The termination of such proceedings in the plaintiff’s favor,
Malice in instituting the proceedings,
Want of probable cause for the proceedings, and
The suffering of injury or damage as a result of the prosecution.

Condere Corp. v. Moon, 880 So.2d 1038, 1042 (Miss. 2004). “Malicious prosecution
suits are not favored [and] must be ‘managed with great caution.’” Croft v. Grand Casino, Inc.,
810 So.2d 66, 72 (Miss. Ct. App. 2005) (quoting State ex rel. Foster v. Turner, 319 So.2d 233,
235 (Miss. 1975)).
Defendants Caesars and Bally contend that Binning cannot prove the tort’s second
element—that the criminal proceedings against him were “by, or at their insistence.” To impose
liability against Defendants, “there must be some affirmative action by way of advice,
encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution . . .
.” Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1117 (Miss. 1998). Further, if the
defendant “merely states what is believed, leaving the decision to prosecute entirely to the []
discretion of the officer, or if the officer[] makes an independent investigation,” then the
defendant “is not regarded as having instigated the proceeding.” Id. (quoting W. Page Keeton et
al., Prosser and Keeton, on the Law of Torts § 119 at 872-73 (5th ed. 1984)). In determining
whether a defendant instigated the proceeding, the court considers whether the defendant
9

submitted an affidavit supporting arrest and the extent to which the defendant influenced the
arresting officer and district attorney. Cardenas v. Maslon, 93 F. Supp. 3d 557, 569 (N.D. Miss.
2015).
Turning to the case at bar, the only evidence produced with respect to Defendant Caesars
is email correspondence from Caesars to Bally advising Bally that Arizona had initiated civil
forfeiture proceedings against Binning. The email was completely unrelated to the underlying
Mississippi prosecution. Further, this email was sent months after the warrant for Binning’s
arrest had been issued and, therefore, could not possibly have encouraged the institution of
proceedings against Binning. Binning has put forth no evidence showing that MGC, Gross, or
the district attorney were aware of this correspondence. Moreover, Binning confirmed in his
deposition testimony that he has no personal knowledge of any communication between Caesars
and the prosecuting authorities in the underlying proceedings.
As to Defendant Bally, the record contains a single Summary of Findings sent by Bally to
MGC one month after the warrant for Binning’s arrest had been issued. Logic dictates that this
report could not have caused the underlying prosecution as it was sent after the proceedings were
initiated. Furthermore, the report merely advised that one of the causes of the unusually high
payouts was a coding error which could be exploited. Nowhere in this report does Bally
reference illegal activity nor identify Binning. Additionally, Binning testified during his
deposition that he was unaware of any other communications between Bally and the prosecuting
authorities.
Lastly, it is undisputed that Agent Gross conducted her own independent investigation
before making the decision to submit an affidavit for Binning’s arrest. For these reasons, the
court agrees that Binning cannot prove that Defendants Caesars or Bally instigated the

10

underlying proceedings against him. Accordingly, the court finds that Binning’s claim for
malicious prosecution against Caesars and Bally is without merit.
Even assuming, arguendo, that Binning could prove that Defendants instigated the
underlying prosecution, the court finds that Binning has failed to establish “malice in instituting
the proceedings” as to all Defendants. “[M]alice in the law of malicious prosecution . . .
connotes a prosecution instituted primarily for a purpose other than that of bringing an offender
to justice.” Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss. 1991) (citing Benjamin v. Hooper
Electronic Supply Co., 568 So.2d 1182 (Miss. 1990); Royal Oil Co., Inc. v. Wells, 500 So.2d 439
(Miss. 1986); Owens v. Kroger Co., 430 So.2d 843 (Miss. 1983); State Life Insurance Co. of
Indianapolis v. Hardy, 195 So. 708 (Miss. 1940)).
Although a mere assertion of malice would be insufficient at this stage, Binning’s
response lacks even a conclusory allegation that the defendants’ acted maliciously. More
importantly, the record is completely devoid of evidence suggesting that the prosecution against
Binning was instituted for any reason other than that of a desire to bring an alleged offender to
justice. Consequently, the court finds that Binning’s malicious prosecution claim against all
Defendants should be dismissed.
Dismissal of Binning’s state-law claim is further necessitated by his failure to
demonstrate “want of probable cause for the proceedings.” Under Mississippi law, the return of
an indictment is prima facie proof of probable cause. Delaney v. Mississippi Dept. of Public
Safety, 2013 WL 286365 * 11 (S.D. Miss. Jan. 24, 2013). The plaintiff must produce evidence
demonstrating either fraud or other improprieties in his prosecution to overcome this prima facie
proof. Id. As previously discussed, an indictment against Binning was returned and he has
neither alleged nor produced evidence demonstrating any impropriety in the underlying
prosecution.
11

The court lastly notes that in his response, Binning contends that he may produce certain
evidence at trial to combat Defendants’ arguments for summary judgment. Yet, “[a]llegations
that one ‘might could’ show certain facts at trial are simply insufficient” to defeat summary
judgment. Pelotto v. L & N Towing Co., 604 F.2d 396, 403 (5th Cir. 1979). A party “cannot
successfully defeat a summary judgment motion by unsworn statements or the suggestion that
proof might be forthcoming at trial.” Pope v. Mississippi Real Estate Com’n, 695 F. Supp. 253,
263 (N.D. Miss. 1988) (citing Ogelsby v. Terminal Transport Co., Inc., 543 F.2d 1111, 1112 (5th
Cir. 1976)).
Conclusion
Based on the foregoing discussion, the court finds that the defendants’ motions for
summary judgment are well-taken and should be granted. A separate order in accord with this
opinion shall issue this day.
This, the 4th day of January, 2018.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

12