Wilson v. City of Biloxi, Mississippi et al

Filing 106

ORDER granting as unopposed Defendants' 55 Motion to Dismiss, and granting in part and denying in part Defendants' 65 Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on 5/21/2013. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MARK KEVIN WILSON
v.
CITY OF BILOXI,
MISSISSIPPI, et al.

§
§
§
§
§
§

PLAINTIFF
Civil Action No. 1:11cv126-HSO-JMR
DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING AS UNOPPOSED
DEFENDANTS’ MOTION TO DISMISS, AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are the Motion to Dismiss [55] and the Motion for
Summary Judgment [65], filed by Defendants City of Biloxi, Mississippi, Michael E.
Davis, and Kenneth Windland. Both Motions are fully briefed. After due
consideration of the record, the submissions on file, and relevant legal authorities,
the Court finds that Defendants’ Motion to Dismiss [55] should be granted as
unopposed, and their Motion for Summary Judgment [65] should be granted in part
and denied in part.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Mark Kevin Wilson [“Plaintiff”] filed a Complaint [1] in this Court
on March 30, 2011, and an Amended Complaint [3] on May 11, 2011. He alleges
that on September 1, 2009, he was involved in a motor vehicle accident with
Defendant Kenneth Windland [“Officer Windland”], a Biloxi police officer, while
Officer Windland was driving a marked City of Biloxi police vehicle. Am. Compl.
[3], at p. 3. Plaintiff contends that he sustained injuries, damages, and losses as a

-1-

proximate result of Officer Windland’s negligence. Id. Following the collision,
Defendant Michael E. Davis [“Officer Davis”], another Biloxi police officer, arrived
on the scene and charged Plaintiff with “failure to yield to blue lights/sirens.” Id. at
p. 4.
In his Amended Complaint, Plaintiff advances claims pursuant to 42 U.S.C. §
1983 for Defendants’ purported violations of his Fourth and Fourteenth
Amendment rights under the United States Constitution, as well as state law
claims for negligence, gross negligence, abuse of process, and malicious prosecution.
Id. at p. 6. He asserts claims against Officer Windland for negligence per se, gross
negligence, wanton indifference, and reckless disregard. Id. at p. 6. In an Order
[39] entered on April 6, 2012, the Court dismissed Plaintiff’s federal individual and
official capacity claims under 42 U.S.C. § 1983 against all Defendants. Order [39],
at p. 17. Surviving were Plaintiff’s state law claims against all Defendants for
negligence, gross negligence, abuse of process, and malicious prosecution, and
against Officer Windland for negligence per se, gross negligence, wanton
indifference, and reckless disregard. Id. Defendants have now filed the current
Motions [55], [65] seeking dismissal of these remaining claims.
II. DISCUSSION
A.

Defendants’ Motion to Dismiss [55]
Defendants argue that any and all of Plaintiff’s “remaining state law claims

fall under the purview of the Mississippi Tort Claims Act (Miss. Code Ann. § 11-461, et seq.)” [“MTCA”]. Defs.’ Mot. to Dismiss [55], at p. 1. They assert that

-2-

Plaintiff’s claims for attorney’s fees, prejudgment interest, and punitive and
exemplary damages should be dismissed because they are unavailable under the
MTCA. Id.
In his Response, Plaintiff simply states that he “concedes that
punitive/exemplary damages, prejudgment interest and attorneys’ fees are not
recoverable as to Defendant City of Biloxi under the Mississippi Tort Claims Act.”
Pl.’s Resp. [60], at p. 1. The Court will grant Defendants’ Motion to Dismiss as
unopposed, and dismiss Plaintiff’s claims for attorney’s fees, prejudgment interest,
and punitive and exemplary damages.
B.

Defendants’ Motion for Summary Judgment [65]
1.

Legal Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “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). To rebut a properly supported motion for summary judgment, the
opposing party must show, with “significant probative evidence,” that there exists a
genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000). In deciding whether summary judgment is appropriate, the Court
views facts and inferences in the light most favorable to the nonmoving party. RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). However, if the evidence is
merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671

-3-

F.3d 512, 516 (5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)).
2.

Analysis
a.

Individual Capacity Claims Against Officers Windland and
Davis

Plaintiff does not seem to dispute that Officers Windland and Davis were
acting within the course and scope of their employment or duties and were engaged
in the performance or execution of duties or activities relating to police protection at
the relevant time. See, e.g., Am. Compl. [3], at ¶ VIII (“at all times whereof
complaint is made herein, Kenneth Windland and Michael E. Davis were acting as
agents, servants or employees of the Defendant, City of Biloxi, and within the
course and scope of their employment with the Defendant, City of Biloxi”); Pl.’s
Resp. [97], at p. 4 (“It is not disputed that Officer Windland may have been engaged
in ‘police protective activities’ as defined under Mississippi law, since the
Mississippi Supreme Court and Court of Appeals have given an incredibly broad
definition to that term.”). Officers Windland and Davis cannot be held personally
liable under Mississippi law for acts or omissions alleged to have occurred within
the course and scope of their duties. Miss. Code § 11-46-7(2); see also Gale v.
Thomas, 759 So. 2d 1150, 1156–57 (Miss. 1999). Plaintiff’s state law claims
asserted against Officers Windland and Davis in their individual capacities should
be dismissed with prejudice, leaving for resolution his state law claims against the
City of Biloxi and these two officers in their official capacities.

-4-

b.

Official Capacity Claims Against All Defendants

Defendants contend that they are entitled to immunity with respect to
Plaintiff’s official capacity state law claims pursuant to Mississippi Code § 11-469(1)(c). Defs.’ Mot. for Summ. J. [65], at pp. 1–3. This statute provides that
(1)

A governmental entity and its employees acting within the course
and scope of their employment or duties shall not be liable for any
claim:
* * *
(c)
Arising out of any act or omission of an employee of a
governmental entity engaged in the performance or
execution of duties or activities relating to police or fire
protection unless the employee acted in reckless disregard
of the safety and well-being of any person not engaged in
criminal activity at the time of injury . . . .

Miss. Code § 11-46-9(1)(c).
Because Plaintiff does not dispute that Officers Windland and Davis were
acting within the course and scope of their employment with the City of Biloxi, see,
e.g., Am. Compl. [3], at ¶ VIII, the issues presented by Defendants’ Motion are
whether Plaintiff was engaged in “criminal activity” at the time of his injury and, if
not, whether the officers acted in reckless disregard for his safety and well being,
see Miss. Code § 11-46-9(1)(c).
(1)

Plaintiff’s Claims Against City of Biloxi and Officer
Windland in His Official Capacity Related to the
Vehicular Accident

Plaintiff’s claims against Officer Windland in his official capacity, and
therefore against the City of Biloxi, stem from the vehicular collision which
occurred while Officer Windland was engaged in a police pursuit of another vehicle.

-5-

Plaintiff accuses Officer Windland of negligence per se, gross negligence, wanton
indifference, and reckless disregard. Am. Compl. [3], at p. 6.
(a)

Whether Plaintiff was Engaged in Criminal
Activity at the Time of His Injury

The City of Biloxi and Officer Windland maintain that Plaintiff was engaged
in criminal activity at the time of the accident, such that they are entitled to
immunity under Mississippi Code § 11-46-9(1)(c).1 Defendants contend that
Plaintiff was charged with failure to yield to blue lights/sirens. Defs.’ Rebuttal
[100], at p. 14 (citing Miss. Code §§ 63-3-809(1), 63-7-19). They further assert that
Plaintiff was speeding and that he was following the vehicle in front of him too
closely. Id. at pp. 14–15 (citing Miss. Code §§ 63-3-619, 63-3-201; Mercier v. Davis,
234 So. 2d 902 (Miss. 1970)). According to Defendants, a causal nexus exists
between Plaintiff’s injuries and his criminal activities because the “wreck would not
have happened if Plaintiff had not failed to yield to Officer Windland’s blue lights,
and if he had been driving prudently and not tailgating the car in front of him . . . .”
Id. at pp. 15–16.
The Mississippi Supreme Court has stated that “[t]he criminal activity
supporting the exemption must be more than fortuitous, but it applies to
misdemeanors as well as felonies.” Miss. Dept. of Public Safety v. Durn, 861 So. 2d
990, 997 (Miss. 2003) (citation omitted). “Misdemeanor traffic offenses are criminal

1

Defendants raise this argument for the first time in their Rebuttal [100]. Even though
it was not raised in their initial Motion or Memorandum Brief, or addressed in the
Plaintiff’s Response, the Court will consider it now.

-6-

activities within the statute.” Id. (citation omitted). However, “[f]or recovery from
a governmental entity to be barred because of the victim’s criminal activity, the
criminal activity must have some causal nexus to the wrongdoing of the tortfeasor.”
McCreary v. City of Gautier, 89 So. 3d 703, 708 (Miss. Ct. App. 2012) (quoting City
of Jackson v. Perry, 764 So. 2d 373, 379 (Miss. 2000)).
It is undisputed that Plaintiff pled nolo contendere to the failure to yield
charge in the Municipal Court of the City of Biloxi, Mississippi, and immediately
appealed to the County Court of Harrison County, Mississippi, Second Judicial
District. Defs.’ Mem. in Supp. of Their Mot. for Summ. J. [66], at p. 4; see also Pl.’s
Resp. [25] to Defs.’ Mots. to Dismiss, at p. 2. On or about August 1, 2011, the
County Court entered an Order for Entry of Nolle Prosequi [65-5], dismissing the
failure to yield charge without prejudice on grounds that the alleged offense
occurred outside the boundaries of the City of Biloxi, depriving the Biloxi Municipal
Court of jurisdiction over the original charge and the County Court of jurisdiction
over the appeal. Defs.’ Mem. in Supp. of Their Mot. for Summ. J. [66], at pp. 4–5;
see also Mot. for Entry of Nolle Prosequi [65-6], attached as Ex. “F” Defs.’ Mot. for
Summ. J. [65].
Defendants argue that Plaintiff was nevertheless engaging in “criminal
activity” at the time of the accident due to his purported failure to yield to Officer
Windland’s lights and siren. Defs.’ Rebuttal [100], at p. 14 (citing Miss. Code §§ 633-809(1), 63-7-19). They rely on Mississippi Code §§ 63-3-809(1) and 63-7-19. Id.
Mississippi Code § 63-3-809 provides in relevant part as follows:

-7-

(1)

(5)
(6)

Upon the immediate approach of an authorized emergency vehicle,
when the driver is giving audible signal by siren, exhaust whistle,
or bell, the driver of every other vehicle shall yield the right-of-way
and shall immediately drive to a position parallel to, and as close
as possible to, the right-hand edge or curb of the roadway clear of
any intersection and shall stop and remain in such position until
the authorized emergency vehicle has passed, except when
otherwise directed by a law enforcement officer.
* * *
A violation of this section is a misdemeanor punishable by a fine
....
This section shall not operate to relieve the driver of an authorized
emergency vehicle, a recovery vehicle, a utility service vehicle or
a highway maintenance vehicle from the duty to drive with due
regard for the safety of all persons using the roadway.

Miss. Code § 63-3-809(1), (5)–(6) (emphasis added).
Mississippi Code § 63-7-19 provides that “[e]xcept as otherwise provided for
unmarked vehicles . . . , every police vehicle shall be marked with blue lights.”
Miss. Code § 63-7-19(1). It further provides that “[o]nly police vehicles used for
emergency work may be marked with blinking, oscillating or rotating blue lights to
warn other vehicles to yield the right-of-way.” Id.
Officer Windland testified that he did not have his siren turned on at the
time of the collision. Dep. of Kenneth Windland, at p. 36, attached as Ex. “B” to
Pl.’s Resp. [97]; see also 30(b)(6) Dep. of City of Biloxi, Mississippi, through John
Miller, at pp. 56–57, attached as Ex. “D” to Pl.’s Resp. [97]. Plaintiff has also
presented the Affidavit of Obie Darnell Atwell, the person whom Officer Windland
was pursuing. See Aff. of Obie Darnell Atwell, at p. 1, attached as Ex. “J” to Pl.’s
Resp. [97]. According to Mr. Atwell, “[a]t no point during these events did the

-8-

officer have on blue lights or sirens.” Id.2 Construing all facts and inferences in the
light most favorable to Plaintiff as the non-movant, there remain questions of fact
as to whether Officer Windland engaged his lights and/or siren prior to the collision
with Plaintiff, and whether Plaintiff was in violation of Mississippi law and
engaging in “criminal activity” at the time of the accident based upon his purported
failure to yield.
Defendants argue that Plaintiff was speeding immediately prior to the
accident. Rebuttal [100], at p. 14. There does not appear to be any dispute that the
posted speed limit in the area was 70 miles per hour. See, e.g., Miss. Code § 63-3501. Defendants point to the deposition of Joey Rockco. Mr. Rockco testified that
Plaintiff was traveling at about 75 miles per hour. Id. at p. 14 (citing Dep. of Joey
A. Rockco, at p. 32, attached as Ex. “B” to Defs.’ Rebuttal [100]). Plaintiff’s sworn
deposition testimony indicates that he was driving only “[a]bout 65.” Dep. of Mark
Kevin Wilson, at p. 21, attached as Ex. “A” to Defs.’ Rebuttal [100]. A question of
fact remains for trial as to whether Plaintiff was speeding and thus engaged in
“criminal activity” prior to the accident.
The City of Biloxi and Officer Windland next maintain that Plaintiff was
following the vehicle in front of him too closely, which contributed to the accident.
2

The City of Biloxi and Officer Windland contend that Mr. Atwell’s Affidavit should be
disregarded because it does not contain his age and whether he was competent to provide a
sworn affidavit. Defs.’ Rebuttal [100], at p. 9. Defendants have not filed a Motion to Strike
this document. Out of an abundance of caution the Court will consider this Affidavit
competent summary judgment evidence based upon Mr. Atwell’s personal knowledge,
pursuant to Federal Rule of Civil Procedure 56(c)(4). Defendants also indirectly attack Mr.
Atwell’s credibility. Rebuttal [100], at p. 9. However, the Court does not weigh credibility
at this stage.

-9-

Rebuttal [100], at pp. 14–15. According to Plaintiff, he was traveling behind a
white car which was about two car lengths ahead of him. Dep. of Mark Kevin
Wilson, at pp. 21–23, attached as Ex. “1” Pl.’s Resp. [97]. Even accepting Plaintiff’s
testimony that he was only traveling 65 miles per hour as true, Defendants argue
that because Plaintiff was only two car-lengths behind the car directly ahead of
him, he was in violation of Mississippi traffic laws. Id. (citing Miss. Code §§ 63-3619, 63-3-201; Mercier v. Davis, 234 So. 2d 902 (Miss. 1970)); see Dep. of Mark
Kevin Wilson, at pp. 21, 23, attached as Ex. “A” to Defs.’ Rebuttal [100].
Mississippi Code § 63-3-619, entitled “Tailgating,” states in relevant part that
“[t]he driver of a motor vehicle shall not follow another vehicle more closely than is
reasonable and prudent, having due regard for the speed of such vehicles and the
traffic upon and the condition of the highway.” Miss. Code § 63-3-619(1).3 In
Mercier, the Supreme Court found that “[f]ollowing another vehicle a distance of
only thirty-six feet while traveling forty-five miles per hour and under the attendant
circumstances seems to us to show overwhelmingly that defendant” violated the
same substantive statute, then Section 8188(a), Mississippi Code 1942 Annotated
(Supp. 1968). Mercier, 234 So. 2d at 904 (emphasis added). However, the facts in
Mercier involved different traffic and highway conditions. The parties there were
traveling in a “lengthy line of traffic” in one lane of a two lane federal highway, id.
at 903, rather than on a multi-lane interstate as in this case. The “attendant

3

Section 63-3-201 makes it a misdemeanor for any person to do an act forbidden by Title
63, Chapter 3, or to fail to perform any act required by that Chapter. Miss. Code § 63-3201.

-10-

circumstances” in Mercier are not identical to those here. The Court finds that fact
questions remain as to whether Plaintiff was following another vehicle more closely
than is “reasonable and prudent,” given the speed of those vehicles and the traffic
conditions on the interstate at the time. See Miss. Code § 63-3-619(1).
In summary, Defendants have not shown that there are no disputes of
material fact whether Plaintiff was engaged in “criminal activity” at the time of the
collision.
(b)

Whether Officer Windland Acted in Reckless
Disregard for Plaintiff’s Safety and Well Being

Defendants argue that Officer Windland did not act in reckless disregard for
Plaintiff’s safety and well being, such that he is entitled to immunity pursuant to
Mississippi Code § 11-46-9(1)(c). The Mississippi Supreme Court has recently
explained that
“[r]eckless disregard” exceeds gross negligence and embraces willful and
wanton conduct. Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990,
994–95 (Miss. 2003) (quoting City of Jackson v. Lipsey, 834 So. 2d 687,
691–92 (Miss. 2003)). The terms “reckless,” “willful,” and “wanton” refer
to conduct that “is so far from a proper state of mind that it is treated in
many respects as if harm was intended.” Maldonado v. Kelly, 768 So. 2d
906, 910 (Miss. 2000) (emphasis removed) (quoting Maye v. Pearl River
County, 758 So.2d 391, 394 (Miss. 1999)). “The usual meaning assigned
to . . . [these] terms is that the actor has intentionally done an act of
unreasonable character in reckless disregard of the risk known to him, or
so obvious that he must be taken to have been aware of it, and so great
as to make it highly probable that harm would follow.” Maldonado, 768
So. 2d at 910 (emphasis removed) (quoting Maye, 758 So.2d at 394). Such
conduct “usually is accompanied by a conscious indifference to
consequences, amounting almost to a willingness that harm should
follow.” Maldonado, 768 So. 2d at 910 (quoting Maye, 758 So. 2d at 394).
In determining whether someone’s conduct constituted reckless
disregard, this Court considers the totality of the circumstances. Davis
-11-

v. City of Clarksdale, 18 So. 3d 246, 249 (Miss. 2009) (citing Phillips v.
Miss. Dep’t of Pub. Safety, 978 So.2d 656, 661 (Miss. 2008)). “The nature
of the officers’ actions is judged on an objective standard with all the
factors that they were confronted with, . . . taking into account the fact
that the officers must make split-second decisions.” City of Jackson v.
Powell, 917 So. 2d 59, 72 (Miss. 2005) (citing Graham v. Connor, 490 U.S.
386, 396–397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations
omitted).
City of Jackson v. Gardner, 108 So. 3d 927, 929 (Miss. 2013).
The Court has held that
[t]he following factors may support a finding of reckless disregard in
connection with a police pursuit: (1) length of the chase; (2) type of
neighborhood; (3) characteristics of the streets; (4) presence of vehicular
or pedestrian traffic; (5) weather conditions and visibility; (6) seriousness
of the offense for which the police are pursuing the suspect; (7) whether
the officer proceeded with sirens and blue lights; (8) whether the officer
had available alternatives which would lead to the apprehension of the
suspect besides pursuit; (9) existence of a police policy which prohibits
pursuit under the circumstances; and (10) rate of speed of the officer in
comparison to the posted speed limit. . . . It is appropriate for trial courts
to consider all ten factors, and to look at the totality of the circumstances
when analyzing whether someone acted in reckless disregard.
City of Jackson v. Gray, 72 So. 3d 491, 496–97 (Miss. 2011) (citations and quotation
omitted).
To the extent Plaintiff asserts claims against Officer Windland in his official
capacity, and thus against the City of Biloxi, for “negligence per se” and “gross
negligence,” such claims are barred by the MTCA as neither would rise to the level
of “reckless disregard” or “willful and wanton conduct.” See id.; see also Miss. Code §
11-46-9(1)(c). Nor has Plaintiff identified which statute Officer Windland allegedly
violated in order to support of a claim of “negligence per se.” Plaintiff’s negligence
per se and gross negligence claims against the City of Biloxi and Officer Windland
cannot withstand summary judgment.
-12-

With respect to Plaintiff’s wanton indifference and reckless disregard claims,
the record is replete with conflicting versions of what actually occurred prior to the
accident. Given the factual inquiry required to ascertain whether Officer Windland
acted in reckless disregard for Plaintiff’s safety, the Court finds that genuine issues
of material fact preclude summary judgment.
(2)

Plaintiff’s Claims Against All Defendants Related to PostAccident Incidents

Plaintiff’s remaining official capacity claims against Officer Windland, Officer
Davis, and the City of Biloxi are for negligence, gross negligence, abuse of process,
and malicious prosecution. Am. Compl. [3], at p. 6. These claims relate to a
purported conspiracy “to maliciously charge Plaintiff with groundless criminal
charges, with a motive other than bringing Plaintiff to justice, for the improper
purpose of seeking avoidance of liability for the underlying accident and injuries.”
Id. at p. 4.
With respect to Plaintiff’s claims for “negligence” and “gross negligence,”
there is no real dispute that Officers Windland and Davis were acting within the
course and scope of their employment or duties and were engaged in the
performance or execution of duties or activities relating to police protection at the
relevant time. See, e.g., Am. Compl. [3], at ¶ VIII; Pl.’s Resp. [97], at p. 4. Because
the Mississippi Supreme Court has held that “‘[r]eckless disregard’ exceeds gross
negligence and embraces willful and wanton conduct,” City of Jackson v. Gardner,
108 So. 3d 927, 929 (Miss. 2013) (citing Miss. Dep’t of Pub. Safety v. Durn, 861 So.
2d 990, 994–95 (Miss. 2003)), Defendants cannot be liable for Plaintiff’s claims for
-13-

mere negligence, or even gross negligence, see Miss. Code § 11-46-9(1)(c). Summary
judgment in Defendants’ favor is therefore appropriate on these claims.
As for Plaintiff’s claims for abuse of process and malicious prosecution,
Defendants contend that even if the MTCA does not shield them from liability,
Plaintiff cannot establish the essential elements of these claims. Defs.’ Mem. in
Supp. of Their Mot. for Summ. J. [66], at pp. 10–13. To maintain an abuse of
process claim, a plaintiff must prove by a preponderance of the evidence: (1) the
defendant made an illegal use of a legal process; (2) the defendant had an ulterior
motive; and (3) damage resulted from the perverted use of process. Ayles ex rel.
Allen v. Allen, 907 So. 2d 300, 303 (Miss. 2005) (citing McLain v. West Side Bone &
Joint Ctr., 656 So. 2d 119, 123 (Miss. 1995)). The “crucial element of this tort is the
intent to abuse the privileges of the legal system.” Allen, 907 So. 2d at 303. “An
action for abuse of process differs from an action for malicious prosecution in that
the latter is concerned with maliciously causing process to issue, while the former is
concerned with the improper use of process after it has been issued.” State ex rel.
Foster v. Turner, 319 So. 2d 233, 236 (Miss. 1975).
Apparently at issue here are two of the traffic citations Officer Davis issued
to Plaintiff. Defendants maintain that Plaintiff cannot show that there was an
illegal use of process involving these citations. Defs.’ Mem. in Supp. of Their Mot.
for Summ. J. [66], at p. 13. In his Response [97], Plaintiff addresses his malicious
prosecution and abuse of process claims together. Pl.’s Resp. [97], at pp. 8–10.
With respect to his abuse of process claim, Plaintiff appears to argue that

-14-

Defendants were aware of errors in the accident report and that others were relying
on the report, yet Defendants failed to correct these errors. Id. at p. 10 (citing Dep.
of Kenneth Windland, at pp. 49–51, attached as Ex. “B” to Pl.’s Resp. [97]).
Officer Windland testified in his deposition that the one inaccuracy he
observed in the accident report was that Officer Davis’s diagram depicted Mr.
Atwell “in the middle lane and should have had him in the far right lane.” Dep. of
Kenneth Windland, at p. 48, attached as Ex. “B” to Pl.’s Resp. [97]. To his
knowledge, Officer Windland believed the report was otherwise accurate. He did
not attempt to correct the error because the report had already been issued, and
because he did not notice the mistake until “probably over a year later.” Id. pp.
48–49.
It is unclear what effect, if any, this discrepancy would have had on the
prosecution of Plaintiff on the two traffic citations. Even construing the facts in the
light most favorable to Plaintiff, the record is devoid of evidence that any Defendant
made an illegal use of a process or had an ulterior motive with respect to the report
or the use of process after it issued. See Allen, 907 So. 2d at 303. Defendants are
entitled to summary judgment on Plaintiff’s abuse of process claim.
For malicious prosecution, a plaintiff must prove the following elements:
(1)
(2)
(3)
(4)
(5)
(6)

the institution or continuation of original judicial proceedings,
either criminal or civil;
by, or at the insistence of the defendants;
the termination of such proceeding in plaintiff’s favor;
malice in instituting the proceedings;
want of probable cause for the proceedings; and
the suffering of damages as a result of the action or prosecution
complained of.
-15-

Bearden v. BellSouth Telecommunications, Inc., 29 So. 3d 761, 764 (Miss. 2010)
(citation omitted).
Defendants argue that there is no evidence that Officer Windland took part
in the investigation or issued any traffic citations to Plaintiff. Defs.’ Mem. in Supp.
of Their Mot. for Summ. J. [66], at p. 9 (citing Aff. of Kenneth Windland, attached
as Ex. “A” to Defs.’ Mot. [65], and Excerpts from Def. City of Biloxi’s Resps. to Pl.’s
Interrogs., attached as Ex. “B” to Defs.’ Mot. [65]). They further contend that there
is no evidence that Officer Davis acted without probable cause or with malice, or
that there was a termination of the criminal proceedings in Plaintiff’s favor, since
the “failure to yield to blue lights” charge was dismissed without prejudice for a lack
of jurisdiction. Id. at p. 11 (citing Bearden v. BellSouth Telecommunications, Inc.,
29 So. 3d 761 (Miss. 2010)).
Plaintiff focuses on the “failure to yield to blue lights/sirens” charge. He
insists that Defendants knew the charge for “failure to yield to blue lights/sirens”
was a “legal impossibility, from day one,” under Mississippi Code § 97-9-72, but
made no effort to have the charge dismissed. Id. (emphasis in original).
Defendants counter that the basis of the charge against Plaintiff was Mississippi
Code § 63-3-809(1) read in conjunction with Mississippi Code § 63-7-19.
The record does not support the conclusion that the prosecution of the traffic
citation for “failure to yield to blue lights/sirens” terminated in “Plaintiff’s favor”
within the meaning of Mississippi law. See Bearden, 29 So. 3d at 764. The County
Court entered an Order for Entry of Nolle Prosequi [65-5] dismissing the failure to
yield charge against Plaintiff without prejudice for lack of jurisdiction. See Mot. for
-16-

Entry of Nolle Prosequi [65-6], attached as Ex. “F” Defs.’ Mot. for Summ. J. [65]. In
a case of first impression, the Mississippi Supreme Court considered in Bearden
“whether a dismissal for lack of jurisdiction may constitute a favorable termination
of proceedings sufficient to support a subsequent claim of malicious prosecution . . .
.” Bearden, 29 So. 3d at 764. The Court “conclude[d] that the dismissal of the case
for lack of jurisdiction does not reflect on the merits of the criminal case against
[the plaintiff].” Id. at 766. For this reason, the dismissal of criminal charges for
lack of jurisdiction would not support a subsequent action for malicious prosecution.
Id. The same is true here. Accordingly, Plaintiff’s claim for malicious prosecution
cannot withstand summary judgment. Finally, because summary judgment is
appropriate on all official and individual capacity claims asserted against Officer
Davis, he will be dismissed as a Defendant from this action.
C.

Bench Trial
Plaintiff demanded a jury trial in both his Complaint [1] and Amended

Complaint [4]. After the Court dismissed Plaintiff’s federal claims, Order [39], at p.
17, the Magistrate Judge entered a Case Management Order [44] setting this
matter for a jury trial. Defendants filed a Motion to Amend Case Management
Order [56] on October 9, 2012. The Magistrate Judge entered an Order [63] on
October 30, 2012, granting the Motion to Amend [56] and ordering the Clerk of
Court “to change the designation of this case and represent this case will be a bench
trial.” Order [63], at p. 2. The same day, the Magistrate Judge entered a Text
Order clarifying that his Order [63] granted as unopposed the City of Biloxi’s

-17-

Motion “as to Plaintiff’s Mississippi Tort Claims Act allegations,” but noting that
“the Court made no finding as to Plaintiff’s remaining allegations which involved
non-Mississippi Tort Claims Act allegations against the remaining defendants.”
Oct. 30, 2012, Text Order.
Because the Court has now dismissed all claims against Officer Davis and all
claims against Officer Windland in his individual capacity, the remaining state law
claims are against Officer Windland in his official capacity and the City of Biloxi.
These fall within the purview of the MTCA. See Miss. Code §§ 11-46-1 – 11-46-23;
see also, e.g., Miss. Code § 11-46-7(2) (“An employee may be joined in an action
against a governmental entity in a representative capacity if the act or omission
complained of is one for which the governmental entity may be liable”); McCoy v.
Lowndes Cnty., Miss., No. 1:08CV144-SA-JAD, 2009 WL 2986324, *10 (N.D. Miss.
Sept. 15, 2009) (“To the extent Plaintiffs have alleged common law tort claims
against the officers in their official capacity as deputy sheriffs of Lowndes County,
these claims are properly construed as having been made directly against Lowndes
County under the Mississippi Tort Claims Act”). Claims filed under the MTCA are
for the Court, sitting without a jury, to hear and determine. Miss. Code § 11-4613(1). Accordingly, all remaining claims in this case shall be tried to the Court
sitting without a jury. See id.; Simpson v. City of Pickens, 761 So. 2d 855, 860
(Miss. 2000).

-18-

III. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss [55] will be granted
as unopposed, and their Motion for Summary Judgment [65] will be granted in part
and denied in part. Plaintiff’s claims against Officer Davis, as well as Plaintiff’s
claims against Officer Windland in his individual capacity, will be dismissed with
prejudice. Plaintiff’s claims for negligence, negligence per se, gross negligence,
abuse of process, and malicious prosecution against the City of Biloxi and Officer
Windland, and any claims for attorney’s fees, prejudgment interest, and punitive
and exemplary damages, will also be dismissed with prejudice. This matter will
proceed to a non-jury trial on Plaintiff’s remaining state law claims under the
MTCA for wanton indifference and reckless disregard against the City of Biloxi and
Officer Windland in his official capacity.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendants’
Motion to Dismiss [55] is GRANTED AS UNOPPOSED, and Plaintiff’s claims for
attorney’s fees, prejudgment interest, and punitive and exemplary damages are
DISMISSED WITH PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED, that Defendants’
Motion for Summary Judgment [65] is GRANTED IN PART and DENIED IN
PART. Plaintiff’s claims against Officer Davis, Plaintiff’s claims against Officer
Windland in his individual capacity, and Plaintiff’s claims for negligence, negligence
per se, gross negligence, abuse of process, and malicious prosecution against the
City of Biloxi and Officer Windland in his official capacity are DISMISSED WITH

-19-

PREJUDICE. Plaintiff’s remaining state law claims under the MTCA for wanton
indifference and reckless disregard against the City of Biloxi and Officer Windland
in his official capacity will proceed to trial before the Court, sitting without a jury.
SO ORDERED AND ADJUDGED this 21st day of May, 2013.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

-20-