Turner et al v. Raybon

Filing 11

ORDER granting 5 Motion for Judgment on the Pleadings; granting 5 Motion for Summary Judgment for the reasons stated in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on June 2, 2014. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL TURNER and
MICHAEL TURNER CONSTRUCTION

PLAINTIFFS

v.

CIVIL ACTION NO. 3:14cv129-DPJ-FKB

RAY RAYBON, INDIVIDUALLY

DEFENDANTS
ORDER

This individual-capacity § 1983 case is before the Court on Defendant’s Motion for
Judgment on the Pleadings, or, alternatively, for Summary Judgment [5]. Because Defendant is
entitled to qualified immunity on the federal claims and the state claim is barred by the
Mississippi Tort Claims Act, the motion is granted.
I.

Facts and Procedural History
Plaintiffs Michael Turner and Michael Turner Construction bring this lawsuit against

Mississippi Department of Revenue (“MDOR”) Agent Ray Raybon, in his individual capacity,
for alleged constitutional violations committed in Raybon’s attempt to collect a state tax debt.
Specifically, Plaintiffs assert that on March 20, 2013, they received a letter from the MDOR
“indicating that MDOR had assessed $65,878.66 against the Plaintiffs.” Compl. [1] ¶ 7. They
allege that on or about February 12, 2014, Raybon “went to the Plaintiffs’ home in an apparent
effort to threaten and intimidate the Plaintiff,” id. ¶ 11, even though the Turners had notified
MDOR that their attorney had power of attorney in all tax matters, id. ¶ 9 & Ex. B.
In his declaration, Raybon fleshes out the facts a bit. He explains that he went to Turner’s
home on three occasions between December 1, 2012, and January 10, 2014, “for the purpose of
discussing collection of a finally established and outstanding state income tax obligation.”

Raybon Decl. [5-1] ¶ 4. On two of Raybon’s visits to Turner’s home, he knocked on the front
door, but when no one answered, he left his business card and departed without speaking to
anyone. Id. ¶¶ 7, 9. On another visit, Raybon encountered Turner’s son outside the home.
Turner’s son advised that Turner was not home, so Raybon “gave the young man [his] business
card and asked him to tell Michael Turner to call [him] at the telephone number on [his] card.”
Id. ¶ 8. Though Plaintiffs’ attorney takes issue with this description as “self serving,” there is no
countervailing record evidence, and there is no dispute that Raybon never actually encountered
Turner.
Plaintiffs filed this lawsuit on February 14, 2014, asserting that Raybon violated their
rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. Plaintiffs also assert a state-law claim for intentional infliction of emotional
distress (“IIED”). Raybon timely answered and filed his motion for judgment on the pleadings or
summary judgment. The Court has personal and subject-matter jurisdiction and is prepared to
rule.
II.

Standard
Raybon has moved alternatively under Rules 12(c) and 56, and has attached his

declaration to his motion. Plaintiffs neither objected to the Court ruling under Rule 56 nor
sought relief under Rule 56(d), so the Court will consider the motion as one for summary
judgment under Rule 56.
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure
when evidence reveals no genuine dispute regarding any material fact and that the moving party
is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
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after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). Conclusory allegations,
speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.

Analysis
A.

Federal Claims

Plaintiffs sued Raybon in his individual capacity seeking damages under 42 U.S.C.
§ 1983. Section 1983 precludes deprivation of a right “secured by the Constitution and laws” of
the United States by a person acting under color of state law. 42 U.S.C. § 1983; Daniel v.
Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1988). In this case, Plaintiffs assert that Raybon
violated the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Raybon responds by invoking qualified immunity as a defense to these claims. Qualified
immunity is a shield from individual liability for “‘government officials performing discretionary
functions . . . as long as their actions could reasonably have been thought consistent with the
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rights they are alleged to have violated.’” Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010)
(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “[Q]ualified immunity generally
protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
When a defendant asserts qualified immunity, the plaintiff has the burden to rebut the
defense. Hamptom v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007). In the
summary-judgment posture, the Court “‘looks to the evidence before it (in the light most
favorable to the plaintiff.)’” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)
(en banc) (quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).
Courts use a two-step analysis to determine whether qualified immunity applies. “[A]
court addressing a claim of qualified immunity must determine first whether the plaintiff has
adduced facts sufficient to establish a constitutional or statutory violation.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Second, if a violation has been alleged, the Court must determine “‘whether [the
officer’s] actions were objectively unreasonable in light of clearly established law at the time of
the conduct in question.’” Id. (alteration in original) (quoting Freeman v. Gore, 483 F.3d 404,
411 (5th Cir. 2007)). In this case, Plaintiffs fail to establish any constitutional violation, so they
never get past the first step.
1.

Fourth Amendment Claim

The Fourth Amendment protects citizens from “unreasonable searches and seizures.”
U.S. Const. amend. IV. “[T]he antecedent question” in assessing a Fourth Amendment claim is
“whether or not a Fourth Amendment ‘search’ [or ‘seizure’] has occurred.” Kyllo v. United
4

States, 533 U.S. 27, 31 (2001). In this case, Plaintiffs have not alleged that they or their property
were either searched or seized within the meaning of the Fourth Amendment.
To begin, there is no allegation that Raybon searched Turner or his property. “[A] Fourth
Amendment search occurs when the government violates a subjective expectation of privacy that
society recognizes as reasonable.” Kyllo, 533 U.S. at 33 (citation omitted). Here, the parties
agree that Raybon left the premises when he could not find Turner. As the United States
Supreme Court recently explained, a government official “may approach a home and knock”
without conducting a search within the meaning of the Fourth Amendment “precisely because
that is ‘no more than any private citizen might do.’” Florida v. Jardines, 133 S. Ct. 1409, 1416
(2013) (quoting Kentucky v. King, 131 S. Ct. 1849, 1862 (2011)); see also Gilmer v. Trowbridge,
No. 3:08cv136-TSL-JCS, 2009 WL 649692, at *6 (S.D. Miss. Mar. 10, 2009) (collecting cases
and granting officer qualified immunity “with respect to plaintiff’s charge that he violated
plaintiff’s Fourth Amendment right to be free from an unlawful search merely by entering onto
plaintiff’s property”).
Likewise, Raybon never seized anyone. “A person is ‘seized’ under the Fourth
Amendment ‘only if, in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.’” Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 431 (5th Cir. 2008) (quoting Michigan v. Chesternut, 486 U.S.
567, 573 (1988)). Raybon never seized Turner, and Plaintiffs do not allege otherwise. Because
there was no search or seizure, much less an unreasonable one, Raybon is entitled to qualified
immunity on the Fourth Amendment claim.

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2.

Fifth Amendment Claim

The Fifth Amendment protects citizens against self-incrimination, including “during a
‘custodial’ interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (footnote and
citations omitted). But Plaintiffs fail to state a Fifth Amendment claim for at least three critical
reasons. First, Turner never made a statement. Second, Plaintiffs acknowledge that Turner was
never in Raybon’s custody—the two never even encountered each other. Finally, even if Raybon
had obtained an involuntary statement in the course of a custodial interrogation,
Ҥ 1983 plaintiffs do not have a Fifth Amendment claim against law-enforcement officials who
have elicited unlawful confessions if those confessions are not then introduced against the
plaintiffs in criminal proceedings.” Id. at 285 n.11 (citing Chavez v. Martinez, 538 U.S. 760, 766
(2003)). Because there was no Fifth Amendment violation, Raybon is entitled to qualified
immunity on this claim.
3.

Sixth Amendment Claim

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.
Again, Turner never saw Raybon, so Turner was never without counsel. Moreover, the right
“does not attach until a prosecution is commenced, that is, at or after the initiation of adversary
judicial criminal proceedings.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). There was no
Sixth Amendment violation, and Raybon is entitled to qualified immunity on the Sixth
Amendment claim.

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4.

Fourteenth Amendment

Plaintiffs’ intent in citing the Fourteenth Amendment remains unclear. It could be that
Plaintiffs cite the amendment as the vehicle through which the protections of the Fourth, Fifth,
and Sixth Amendments apply to the states. See, e.g., Camara v. Municipal Court of San
Francisco, 387 U.S. 523, 528 (1967) (“[T]he Fourth Amendment is enforceable against the
States through the Fourteenth Amendment.”). Or perhaps they contemplate separate due-process
or equal-protection claims. If the former, then those claims are addressed above. If the latter,
Plaintiffs failed to adequately aver such claims and have likewise failed to support them under
Rule 56. To the extent there is a separate Fourteenth Amendment claim, it is dismissed as
abandoned and otherwise meritless.1
B.

Intentional Infliction of Emotional Distress

Finally, Plaintiffs assert an IIED claim against Raybon. “Where there is no physical
injury, a party may recover for intentional infliction of emotional distress, ‘where there is
something about the defendant’s conduct which evokes outrage or revulsion.’” Franklin
Collection Serv., Inc. v. Kyle, 955 So. 2d 284, 290–91 (Miss. 2007) (quoting Morrison v. Means,
680 So. 2d 803, 806 (Miss. 1996)). “The standard is whether the defendant’s behavior is
malicious, intentional, willful, wanton, grossly careless, indifferent or reckless.’” Id. (quoting
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Plaintiffs also complain about the constitutionality of certain Mississippi Tax Code
provisions relating to income and sales tax audits and examinations by MDOR, arguing that they
could result in constitutional violations if the taxpayer complies with the MDOR’s request for
documents. See Pls.’ Mem. [8] at 8. But that argument also fails. Even assuming that a yet-tooccur act could trigger § 1983 liability, Plaintiffs never link their complaints about these laws to
any actions Raybon took in his individual capacity. If Mississippi passed an unconstitutional
statute, Rayborn would not be personally liable for it. See generally Morris v. Livingston, 739
F.3d 740, 746 (5th Cir. 2014) (citing Okpalobi v. Foster, 244 F.3d 405, 416 (5th Cir. 2001)); see
Ex parte Young, 209 U.S. 123 (1908).
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Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995) (other citations
omitted)). If the conduct is indeed malicious, then it would fall beyond the immunity the
Mississippi Torts Claims Act (MTCA) preserves for governmental employees acting within the
course and scope of employment. Miss. Code Ann. § 11-46-7(2); see Weible v. Univ. of So.
Miss., 89 So. 3d 51, 64 (Miss. 2011) (“[T]o the extent intentional infliction of emotional distress
is predicated on malicious conduct, the claim would be outside the scope of the MTCA.”).
The conduct in this case is Raybon’s three unsuccessful attempts to visit Turner and the
decision to leave a business card. According to Plaintiffs, this “conduct was nothing short of
Storm Trooper, Gestapo tactics designed to intentionally terrorize, unnerve and cause severe
emotional distress to the Plaintiff and place him in imminent fear of physical harm and/or
wrongful incarceration.” Pls.’ Mem. [8] at 2. The claim fails under the MTCA and would
otherwise fail under Rules 12(c) and 56 of the Federal Rules of Civil Procedure.
Plaintiffs certainly use the magic word in their Complaint, but merely calling Raybon’s
conduct “malicious” is not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007))). And
when the evidence is viewed in light of Rule 56, the “malicious” tag is nothing more than the
conclusory allegation of Plaintiffs’ counsel. See TIG Ins. Co., 276 F.3d at 759 (“Conclusional
allegations . . . do not adequately substitute for specific facts showing a genuine issue for trial.”).
As a matter of law, the unsuccessful attempt to visit Turner and the act of leaving a
business card is neither malicious nor capable of invoking “outrage or revulsion.’” Franklin
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Collection Serv., Inc., 955 So. 2d at 291; see also Wendell Russell Morris v. Mickey Myers, Civil
Action No. 3:13cv121TSL-JMR (April 21, 2014) (granting summary judgment on IIED claim
under nearly identical circumstances). The state-law claim against Raybon is barred by the
MTCA. Miss. Code Ann. §§ 11-46-7(2), 11-46-9(1)(i). It likewise fails to state a claim or raise
a genuine dispute for trial.2
IV.

Conclusion
The Court has considered all the parties’ arguments. Those not specifically addressed

would not have changed the outcome. For the foregoing reasons, Defendant’s Motion for
Judgment on the Pleadings, or, alternatively, for Summary Judgment [5] is granted and this case
is dismissed with prejudice. A separate judgment will be entered in accordance with Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 2nd day of June, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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Plaintiffs argue that visiting Turner violated Mississippi Rule of Professional Conduct
4.2, adding to the outrage. But the record is undisputed that Raybon is not an attorney, and it is
not clear that Rule 4.2 would preclude the visit even if he was an attorney.
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