Harris v. Pearson

Filing 48

ORDER Dismissing Plaintiff's Claims, Finding as Moot 43 MOTION to Compel, and Directing Defendant to Respond. Signed by Magistrate Judge Robert H. Walker on April 4, 2012 (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MARK WILLIAM HARRIS
VERSUS

PLAINTIFF
CIVIL ACTION NO. 1:10CV443-RHW

ANITA CAROL PEARSON

DEFENDANT

ORDER DISMISSING PLAINTIFF’S CLAIMS,
FINDING AS MOOT PLAINTIFF’S MOTION TO COMPEL,
AND DIRECTING DEFENDANT TO RESPOND
This matter is before the Court on Plaintiff's 42 U.S.C. § 1983 prisoner civil rights
complaint. Plaintiff, proceeding pro se and in forma pauperis, filed the instant complaint against
Defendant Anita Carol Pearson alleging assault, unlawful arrest, and deprivation of personal
property. On April 7, 2011, the Court conducted a screening hearing pursuant to 28 U.S.C.
§ 1915A. At the conclusion of the hearing, counsel for Pearson moved to dismiss the case
because Pearson is not a state actor and because subject-matter jurisdiction is lacking.
Pearson owns and operates a bail bond business, A-1 Outlaw Bonding. Subsequent to an
arrest, Plaintiff secured his release on a bond from Pearson's agency. While out on bond,
Plaintiff inadvertently missed a court date some time in May 2008. Plaintiff alleges that in July
2008, Pearson's agents/employees acted with gross negligence in disregard for the Plaintiff's
safety when apprehending him. Counsel for Pearson indicated that the incident occurred on June
27, 2008.
On the date in question, Pearson’s agents approached Plaintiff brandishing firearms and
threatening to kill him. After a struggle, Pearson’s agents placed Plaintiff in handcuffs and
confiscated his personal property. The agents then drove him to a location near the police station

to meet his mother. Plaintiff signed over a check to his mother, after which the agents removed
the handcuffs and instructed Plaintiff to go into the police station.
Plaintiff further alleges that Pearson conspired with other individuals to assault Plaintiff
while he was incarcerated. Specifically, she attempted to hire Jimmy Dale Fryerson to assault
him, but Fryerson notified law enforcement authorities of Pearson’s plan. Plaintiff indicates that
while incarcerated other inmates attacked him resulting in injuries. Plaintiff believes that this
assault occurred at Pearson’s request. Plaintiff alleges that Pearson and her agents were arrested
and charged with felony kidnaping, armed robbery, and extortion in relation to the events
outlined in his complaint. Counsel for Pearson confirmed that certain charges are pending
against Pearson and her agents in connection with actions taken against Plaintiff.
At the screening hearing, counsel for Defendant indicated that he would be filing a
motion to dismiss based on jurisdictional grounds. Based on this representation, the Court set a
motion deadline of April 27, 2011. In an [39] order dated October 21, 2011, the Court noted that
Defendant had not yet filed a motion to dismiss; therefore, the Court set a second dispositive
motion deadline of December 5, 2011. Despite these two opportunities, Defendant has not filed
a motion regarding any jurisdictional issues or the implications of Landry v. A-Able Bonding,
Inc., 75 F.3d 200 (5th Cir. 1996) to this lawsuit. Nor has Plaintiff filed any type of dispositive
motion. The docket reflects that the parties have conducted discovery subsequent to the
screening hearing.
Pursuant to § 1915(e)(2)(B)(ii), the Court "shall dismiss the case at any time" if the action
"fails to state a claim on which relief may be granted." Furthermore, pursuant to § 1915A(b)(1),
the Court after conducting a screening hearing, shall dismiss a complaint if it "is frivolous,
2

malicious, or fails to state a claim upon which relief may be granted." The Court has reviewed
Plaintiff's complaint, as well as Plaintiff's statements from the screening hearing, and the Court
finds that he has failed to state a claim upon which relief may be granted.
Although arguably Plaintiff may have stated a sufficient basis for state-law claims, the
only question before the Court in § 1983 analysis is whether Plaintiff has stated a claim of federal
constitutional magnitude against Pearson. The threshold inquiry is whether Pearson and her
agents or employees were "state actors" as required by § 1983. Bail bondsmen are not, as a
general rule, state actors under § 1983, unless the bondsmen act pursuant to a court-issued arrest
warrant or enlist the assistance of law enforcement officials in executing the warrant. See
Landry, 75 F.3d at 204. In assessing whether a bail bonding agent is a “state actor”, the court is
required to make a "fact-bound inquiry," considering the "context in which state action is
alleged." Id.
To show state action, the plaintiff must prove that the conduct is fairly attributable to the
state. See Lugar v. Edmondson Oil, 457 US. 922, 937 (1982). Fair attribution requires (1) that
the deprivation was caused by the exercise of a state-created right or privilege, by a state-imposed
rule of conduct, or by a person for whom the state is responsible, and (2) that the party charged
with the deprivation may be fairly described as a state actor. Landry, 75 F.3d at 203-04. In
analyzing the second part of the attribution test, the Court focuses on the following factors: (1)
whether the bondsmen enlisted the assistance of law enforcement in arresting their principals,
and (2) whether the bondsmen had, and displayed, an arrest warrant. Id. at 204-05.
Plaintiff does not allege in his pleadings, nor did he testify, that the bonding agents
enlisted the assistance of law enforcement in his arrest. In fact in one of his pleadings, Plaintiff
3

affirmatively alleges that law enforcement was not enlisted to execute an arrest warrant. See dkt.
entry [13] at 2. At the screening hearing, Plaintiff also testified that at no time did the bonding
agents present an arrest warrant or tell him that his apprehension was pursuant to an arrest
warrant.
Under certain circumstances, a bonding agent may be deemed a state actor and thus
implicate § 1983. However, in this case, Plaintiff has failed to allege or identify any facts that
would lead to such a conclusion. To the contrary, Plaintiff's factual assertions demonstrate that
the Defendant in this case was not a state actor because she neither enlisted the assistance of law
enforcement agents nor displayed an arrest warrant. Consequently, the Court concludes that
Plaintiff’s claims against Pearson should be dismissed for failure to state a claim. However, the
dismissal of Plaintiff's claims does not end the case, because Defendant has filed a counterclaim
alleging frivolous litigation pursuant to Mississippi's Frivolous Litigation Accountability Act.
The Court directs Defendant to inform the Court in writing whether she intends to pursue her
counterclaim and the jurisdictional grounds for continuing her counterclaim.
There is a pending [43] motion to compel discovery that Plaintiff filed on December 7,
2011, in which he argues that Defendant did not produce documents requested by Plaintiff. The
docket reflects that on November 15, 2011, Defendant served responses to requests for
production of documents and interrogatories. Moreover, Plaintiff’s claims have been dismissed.
Thus, it appears that Plaintiff's motion to compel is moot.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff's claims be dismissed
with prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Defendant shall inform the Court in writing no later
4

than April 18, 2012, of her intention to pursue her counterclaim and the jurisdictional basis for
pursuing this claim in federal court. Defendant is cautioned that failure to respond to this Court’s
order will be deemed an abandonment of the counterclaim and result in its dismissal.
IT IS FURTHER ORDERED that Plaintiff's [43] motion to compel is deemed to be
MOOT.
SO ORDERED, this the 4th day of April, 2012.
s/
UNITED STATES MAGISTRATE JUDGE

5