Redmond v. Yazoo County, Mississippi et al
Filing
32
ORDER granting 15 Motion to Dismiss certain claims; granting 15 Motion for Summary Judgment as to certain claims as set forth in the Order Signed by Honorable David C. Bramlette, III on 10/21/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RECELL REDMOND
PLAINTIFF
VS.
CAUSE NO. 3:16-CV-361(DCB)(MTP)
YAZOO COUNTY, MISSISSIPPI;
SHERIFF JAKE SHERIFF, in his official
capacity; SIMON STUBBLEFIELD, Individually
and in his official capacity; TERRY GANN,
Individually and in his official capacity;
BRIAN WHITE; BENTONIA VOLUNTEER FIRE DEPARTMENT;
and JOHN DOES 1-10
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant Brian White’s
Motion to Dismiss Claims of Negligence and Gross Negligence and/or
in the Alternative for Partial Summary Judgment (docket entry 15).
Having
carefully
considered
the
motion,
the
plaintiff
Recell
Redmond’s response, the memoranda of the parties and the applicable
law, and being fully advised in the premises, the Court finds as
follows:
This case was originally filed in the Circuit Court of Yazoo
County, Mississippi, and was timely removed to this Court pursuant
to 28 U.S.C. § 1441, et seq., on the basis of federal question
jurisdiction, 28 U.S.C. § 1331. Specifically, plaintiff Redmond (a
Sergeant with the University of Mississippi Police Department),
alleges in his Complaint that he was falsely arrested by defendants
Simon Stubblefield, Terry Gann (both employees of the Yazoo County
Sheriff’s Department) and Brian White (an employee of the Bentonia,
Mississippi,
Volunteer
Fire
Department),
and
that
they
used
excessive force during the arrest in violation of the plaintiff’s
Fourth and Fourteenth Amendment rights.
The Complaint alleges that Redmond, a resident of Yazoo City,
Mississippi,
was
traveling
southbound
on
U.S.
Highway
49
on
December 14, 2014 to work in Jackson, Mississippi. Redmond alleges
that he noticed a vehicle in the median that appeared to be on
fire.
He alleges that he assisted in extinguishing the fire, and
confirmed there were no injuries to the person operating the
vehicle. He further alleges that he left the scene of the incident
before emergency personnel arrived on the scene.
The plaintiff also alleges that after leaving the scene of the
incident, he observed a police car and a white truck pass him at a
high rate of speed on Highway 49 south.
He further alleges that
these vehicles pulled over in the median ahead of him on Highway
49, and that as he proceeded on his route he was pulled over by two
Yazoo County Sheriff’s Department deputies (Stubblefield and Gann),
and a Bentonia Volunteer Fireman (White), who rushed his car with
guns drawn and pointed at him. He alleges that defendant White was
near the rear of the truck. Redmond alleges that Stubblefield told
him to step out of the vehicle on suspicion of leaving the scene of
an accident, and that Stubblefield placed him in handcuffs.
He
further alleges that White pushed him against the truck during the
process of placing Redmond in the back of a Sheriff’s Department
2
patrol car. He alleges that after an investigation into the matter
he was released.
White files the present Motion to Dismiss State Law Claims of
Negligence and Gross Negligence and/or in the Alternative for
Partial Summary Judgment, based on Redmond’s alleged failure to
comply with the Mississippi Tort Claims Act and its applicable
statute of limitations.
Defendant White also claims immunities
under the Mississippi Tort Claims Act (“MTCA”) and all defenses
afforded to him thereunder, Miss. Code Ann. §11-46-1 et seq.,
including the one-year statute of limitations to bring such actions
and the notice of claims provisions required by Miss. Code Ann.
§11-46-11.
White moves to dismiss the claims of negligence and
gross negligence, which as pled by the plaintiff amount to claims
of assault, slander, libel, false arrest and malicious arrest
pursuant to Miss. Code Ann. §15-1-35 and its one-year statute of
limitations.
The incident which resulted in the present lawsuit occurred on
December 14, 2014.
The plaintiff’s Complaint was filed in state
court on April 4, 2016. White alleges that Redmond never submitted
a tort claim letter to the Fire Chief of the Bentonia Volunteer
Fire Department, nor to White.
By passing the Mississippi Tort Claims Act, the Mississippi
Legislature
waived
sovereign
“immunity
of
the
state
and
its
political subdivisions from claims for money damages arising out of
3
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(1).
The Act provides
the exclusive remedy against a governmental entity or its employee.
Miss. Code Ann. § 11-46-7(1).
In addition, “[a]ny claim filed
against a governmental entity and its employees (for monetary
relief) must be brought under [the] statutory scheme” of the Act.
Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234-36 (Miss.
1999). Therefore, the plaintiff’s claims alleging tortious conduct
by White within the course and scope of his employment, and seeking
monetary relief, must be brought under the Act, while any claims
against White in his individual capacity are not subject to the
Act.
Notice of claim must be given ninety (90) days prior to
maintaining an action.
1226 (Miss. 2003).
Black v. City of Tupelo, 853 So.2d 1221,
This requirement is mandatory and must be
satisfied prior to the institution of a tort lawsuit against a
governmental entity or one of its employees acting within the
course and scope of his employment.
Id.
The Mississippi Supreme
Court has adopted a “substantial compliance” standard to determine
whether the notice of claim requirements have been met.
Id.
However, the plaintiff has not alleged nor offered any proof that
he provided a notice of claim letter to the Fire Chief of the
Bentonia Volunteer Fire Department or to White.
4
On August 2, 2016, the Bentonia Volunteer Fire Department
filed
a
Motion
for
Summary
Judgment,
alleging
that
it
is
a
“political subdivision” under the Mississippi Tort Claims Act, and
that Brian White was at all times pertinent to this suit acting in
the course and scope of his employment.
The Fire Department moved
for summary judgment based on the plaintiff’s failure to serve a
notice of claim letter pursuant to Miss. Code Ann. § 11-46-11; and,
in addition, based on the plaintiff’s failure to file suit within
the one-year statute of limitations.
The plaintiff and the Fire
Department entered into an Agreed Order on September 6, 2016,
granting the Fire Department’s motion for summary judgment and
dismissing the Fire Department with prejudice.
Therefore, all
state law claims against White in his official capacity are barred
by the Mississippi Tort Claims Act.
See Woods v. Carroll County,
Miss., 2008 WL 4191738, *3 (N.D. Miss. Sept. 9, 2008).
As for the state law claims against White in his individual
capacity, these are governed by the one-year statute of limitations
under Miss. Code Ann. § 15-1-35.
See City of Mound Bayou v.
Johnson, 562 So.2d 1212-18 (Miss. 1990).
The incident giving rise
to the plaintiff’s claims occurred on December 14, 2014.
The
plaintiff’s Complaint was filed with the Circuit Clerk of Yazoo
County on April 4, 2016, long after the limitation period had run.
The state law claims against White in his individual capacity are
thus barred.
See id. (“state law torts of assault and battery and
5
excessive
use
of
force
accrue
on
the
date
of
the
subject
incident”); Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 727
(Miss. 1989)(“actions for state law torts of false arrest and false
imprisonment accrue at the time of arrest”).
The Court therefore finds that defendant Brian White’s Motion
to Dismiss Claims of Negligence and Gross Negligence and/or in the
Alternative for Partial Summary Judgment is well taken, and said
claims shall be dismissed with prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendant Brian White’s Motion to
Dismiss Claims of Negligence and Gross Negligence and/or in the
Alternative for Partial Summary Judgment (docket entry 15) is
GRANTED, and said claims are hereby dismissed with prejudice.
SO ORDERED, this the 21st day of October, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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