Underwood v. Mississippi Department of Corrections et al

Filing 69

Memorandum Opinion and ORDER Denying Defendant Bryan Scott Davis's Motion 28 for Partial Summary Judgment. Signed by District Judge Halil S. Ozerden on December 3, 2019. (AW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SARAH UNDERWOOD

PLAINTIFF

v.

Civil No. 1:18cv24-HSO-JCG

MISSISSIPPI DEPARTMENT OF
CORRECTIONS, PELICIA HALL,
BRYAN SCOTT DAVIS, BEN WHITE

DEFENDANTS

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT BRYAN
SCOTT DAVIS’S MOTION [28] FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is Defendant Bryan Scott Davis’s Motion [28] for
Partial Summary Judgment. For the reasons that follow, the Court finds that the
Motion should be denied.
I. BACKGROUND
On January 19, 2018, Plaintiff Sarah Underwood (“Plaintiff”) filed suit in this
Court against Defendants Mississippi Department of Corrections (“MDOC”), Pelicia
Hall, Bryan Scott Davis (“Davis”), and Ben White (collectively, “Defendants”).
Compl. [1]. Plaintiff filed a First Amended Complaint [12] against Defendants on
May 2, 2018. First Am. Compl. [12]. The First Amended Complaint advances
claims under Miss. Code Ann. § 25-9-149, the Rehabilitation Act, the Americans
with Disabilities Act, Title VII of the Civil Rights Act of 1964, state defamation law,
and 42 U.S.C. § 1983, arising out of sexual harassment and retaliation Plaintiff
alleges occurred during her employment with MDOC. Id. at 6-8.

The Attorney General for the State of Mississippi sent Davis a letter on April
23, 2018, informing Davis that the State would not provide him with a defense to
Plaintiff’s suit, nor would it indemnify him. Mot. for Partial Summ. J. Ex. A [28-1].
The Attorney General based this on a finding that the allegations against Davis “all
involve matters and conduct outside the scope and course of [his] employment with
MDOC.” Id.
Davis filed a cross-complaint against MDOC seeking a declaratory judgment
that he was acting within the course and scope of his employment and that MDOC
owed him a defense and was required to indemnify him. Answer and Cross-cl. [16]
at 3. MDOC denied that it owed Davis these duties, Answer to Cross-cl. [18] at 1-2,
and Davis filed the present Motion [28] for Partial Summary Judgment Requiring
Mississippi Department of Corrections to Provide a Defense for Defendant Bryan
Scott Davis, Mot. for Partial Summ. J. [28]. Davis argues that (1) the acts
complained of were related to and incidental to his employment; and (2) MDOC
knew of and ratified his actions. Id. at 1. MDOC counters that Davis’s actions did
not fall within the course and scope of his employment, and that even if they did,
Davis is still not owed a defense by MDOC. Mem. in Opp’n [31] at 3-4.
II. DISCUSSION
A.

Summary judgment 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). If the movant carries this burden, “the nonmovant must go beyond
the pleadings and designate specific facts showing that there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
When a movant files an “offensive” motion for summary judgment and bears the
burden of proof on that claim, the movant “must establish beyond peradventure all
of the essential elements of the claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
B.

Duty to defend under Mississippi law
The Mississippi Tort Claims Act waives sovereign immunity for claims for

money damages “arising out of the torts of such governmental entities and the torts
of their employees while acting within the course and scope of their employment.”
Miss. Code Ann. § 11-46-5. Every “governmental entity shall be responsible for
providing a defense to its employees . . . in any civil action or the settlement of any
claim against an employee for money damages arising out of any act or omission
within the course and scope of his employment.” Miss. Code Ann. § 11-46-7(3). This
duty to defend exists whether the case is brought in state or federal court. Miss.
Code Ann. § 11-46-7(4).
In addition, “no employee shall be held personally liable for acts or omissions
occurring within the course and scope of the employee’s duties.” Miss. Code Ann. §
11-46-7(2). “To be within the course and scope of employment, an activity must
carry out the employer’s purpose of the employment or be in furtherance of the
employer’s business.” Cockrell v. Pearl River Valley Water Supply Dist., 865 So. 2d

357, 361-62 (Miss. 2004). There is a rebuttable presumption that an act of an
employee “within the time and at the place of his employment is within the course
and scope of his employment.” Miss. Code Ann. § 11-46-7(7).
A governmental entity is not liable for employee misconduct that occurs
outside the course and scope of his employment, such as “fraud, malice, libel,
slander, defamation, or any criminal offense other than traffic violations.” Miss.
Code Ann. § 11-46-7(2); Cockrell, 865 So. 2d at 361. Sexual misconduct also falls
outside the course and scope of employment. Cockrell, 865 So. 2d at 362.
C.

Defendant Davis has not carried his burden of proving each element of his
cross-claim beyond peradventure.
Under Sections 11-46-5 and 11-46-7 of the Mississippi Code, MDOC owes a

duty to defend Davis on any tort claim arising from conduct that occurred during
the course and scope of his employment. To show that he is entitled to a defense on
Plaintiff’s claims against him, Davis must show beyond peradventure that the
actions he is alleged to have committed are torts and that they occurred within the
course and scope of his employment with MDOC. Miss. Code Ann. § 11-46-7.
1.

Defamation claim
The First Amended Complaint advances a claim for defamation and alleges

that Davis: (1) called Plaintiff’s coworkers and supervisors and told them that she
was trying to “get them fired and to ‘watch out’ for Plaintiff”; and (2) falsely told
Plaintiff’s coworkers and supervisors that Plaintiff had sent Davis sexually
provocative pictures of herself in her underwear. First Am. Compl. [12] at 2-3.
To the first element of Davis’s claim that he is entitled to a defense,

defamation is considered a tort. Speed v. Scott, 787 So. 2d 626, 631 (Miss. 2001)
(describing the “general tort of defamation”). The question is whether this alleged
tort fell within the course and scope of Davis’s employment.
Davis has not shown beyond peradventure that a claim for his alleged
defamatory actions fell within the course and scope of his employment within the
meaning of Section 11-46-7(7). Defamation is categorically not an action
undertaken within the course and scope of employment, Miss. Code Ann. § 11-467(2), and merely reciting that his conduct occurred at the time and place of
employment is insufficient to overcome this categorical exclusion. Davis has not
provided additional, specific evidence showing how these allegedly defamatory
comments somehow fall within the course and scope of his employment as a
probation officer. As such, Davis has not carried his burden to show beyond
peradventure that he is entitled to a defense on the defamation claim.
2.

Remaining claims against Davis
The remaining claims in the First Amended Complaint allegedly arise under

Mississippi Code § 25-9-149, the Rehabilitation Act, the Americans with Disabilities
Act, Title VII, and 42 U.S.C. § 1983. Id. at 6-8. Plaintiff alleges that Davis sexually
harassed her, First Am. Compl. [12] at 2, and that all Defendants acting collectively
took other actions against her, id. at 4-5.
Davis has not sufficiently carried his initial burden of demonstrating how any
of these remaining claims are “torts” within the meaning of Section 11-46-5. Davis
has not pointed the Court to any authority or evidence, and certainly not proof

showing beyond peradventure, how the remaining claims fell within the course and
scope of his employment within the meaning of the Mississippi Tort Claims Act. In
sum, Davis has not carried his summary judgment burden, and his Motion [28] for
Partial Summary Judgment will be denied.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
Bryan Scott Davis’s Motion [28] for Partial Summary Judgment Requiring
Mississippi Department of Corrections to Provide a Defense for Defendant Bryan
Scott Davis is DENIED.
SO ORDERED AND ADJUDGED, this the 3rd day of December, 2019.

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