Bailey v. Jefferson County, Mississippi et al
Filing
56
ORDER granting 46 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 5/15/2013 (ECW)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
WESTERN DIVISION
CARL BAILEY
PLAINTIFF
VS.
CIVIL ACTION NO. 5:12-cv-22(DCB)(MTP)
JEFFERSON COUNTY, MISSISSIPPI, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This civil case is before the Court on a motion for summary
judgment (docket entry 46) filed by defendant Jefferson County;
defendants Ray Perryman, Larry McKnight, Trent Hudson, Sr., Cammie
Hutcherson and Christopher Lowe (individually and in their official
capacities as members of the Board of Supervisors of Jefferson
County, Mississippi); and defendant Marilyn Jones (individually and
in her official capacity as Clerk of Jefferson County Justice
Court). Having carefully considered the motion and the plaintiff’s
response, as well as the memoranda and exhibits, the record in this
case and the applicable law, the Court finds as follows:
The plaintiff, Carl Bailey, is a duly elected Constable for
Jefferson County, and has been serving in that position since 2000.
Constables receive $1,800 per year from the County.
Deposition, p. 15.
The remainder of their compensation comes from
service of process fees.
27.
The
Bailey
plaintiff’s
Complaint, ¶ 7; Miss. Code Ann. § 25-7complaint
alleges
that
the
defendants
“intentionally, deliberately and wilfully violated state law” at a
meeting of the Board of Supervisors in 2011, by “officially
order[ing] the Clerk of the Justice Court to direct all process to
the Sheriff’s Department for service instead of sending it to the
Plaintiff and the other county constable.”
Complaint, ¶ 9.
Defendant Jones is alleged to have “joined with the Board of
Supervisors.”
Complaint, ¶ 10.
The complaint further alleges: “The actions of the Defendants
were made while acting under color of state law, pursuant to an
official custom, practice and/or order of the County Board of
Supervisors and deprived the Plaintiff of his constitutionally
protected rights in violation of 42 U.S.C. § 1983.”
11.
Complaint, ¶
Specifically, the plaintiff alleges that the defendants
deprived him of due process rights under the Fourteenth Amendment
to the United States Constitution, causing a loss of income, which
is actionable through § 1983.
Complaint, ¶¶ 13-14.
In their motion for summary judgment, the defendants show that
the gravamen of the plaintiff’s complaint is that he objects to not
being paid his fees for service of process (in civil cases filed by
the Jefferson County Tax Collector’s Office in Justice Court) prior
to any costs or fees being received by the Court from the guilty
party or any other source of payment in connection with the case.
Bailey
Deposition,
p.
8.
Specifically,
the
plaintiff
is
complaining about civil actions filed by the Tax Collector’s Office
for back taxes on mobile homes in the year 2011.
Id.
The individual defendants move for summary judgment on the
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basis of qualified immunity.
“A qualified immunity defense alters
the usual summary judgment burden of proof. ... Once an official
pleads the defense, the burden then shifts to the plaintiff, who
must rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly
established law. ... The plaintiff bears the burden of negating
qualified immunity, ... but all inferences are drawn in his favor.”
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)(citations
omitted).
“The qualified immunity defense has two prongs: whether an
official’s
conduct
violated
a
constitutional
right
of
the
plaintiff; and whether the right was clearly established at the
time of the violation. ... A court may rely on either prong of the
defense in its analysis.”
Id. (citations omitted).
In this case, the decision by the Board of Supervisors to pay
Constables their fees from the first proceeds received in the case
is entirely consistent with Mississippi law.
provides
that
“[m]arshals
and
constables
Mississippi law
shall
be
paid
all
uncollected fees levied under subsection (1) of this section in
full from the first proceeds received by the court from the guilty
party or from any other source of payment in connection with the
case.”
Miss. Code Ann. § 25-7-27(2).
As an alternative to
collection of delinquent taxes by the tax collector through filing
suit, the Board of Supervisors is authorized to “contract in the
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manner provided in Section 19-3-41 with a private attorney or
private collection agent or agents for the collection of delinquent
ad valorem taxes on manufactured homes or mobile homes that are
entered as personal property on the manufactured home rolls.”
Miss. Code Ann. § 27-53-17(2).
authorized
to
file
a
tax
In addition, the tax collector is
lien
against
the
property
for
the
collection of delinquent ad valorem taxes, in lieu of filing suit.
Miss. Code Ann. § 27-53-17(3).
The plaintiff fails to show that he is entitled to payment of
service of process fees by the County prior to collection of the
first proceeds in the case.
While this is a departure from
previous practice, in which the County paid the costs up front, the
plaintiff is unable to point to a state law that entitles him to
payment of his fees up front.
To claim a property interest
protected under the Fourteenth Amendment, “a person must have more
than an abstract need or desire for it.
He must have more than a
unilateral expectation of it.
He must, instead, have a legitimate
claim of entitlement to it.”
Board of Regents v. Roth, 408 U.S.
564, 577 (1972).
Another state law, Miss. Code Ann. § 11-9-107, provides that
“[w]hen any process has not been returned by a constable within ten
(10) working days after issuance by the clerk of the justice court,
the clerk shall direct the sheriff of his county and his deputies
to execute any such process of the justice court; and the sheriff
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and his deputies shall execute any process so directed to him by
any clerk of the justice court.”
Id.
Thus, in those instances
where the plaintiff refused to serve process, or failed to do so
within ten working days, the clerk of the justice court had the
authority to turn service of process over to the sheriff’s office.
Here,
the
plaintiff
has
shown
merely
an
expectation
to
continue collecting his Constable fees prior to the Justice Court
receiving any funds in the case.
Since the plaintiff has shown no
deprivation of a right secured by the Constitution and laws, there
can be no liability on the part of the defendants.
Rule 56 of the Federal Rules of Civil Procedure authorizes
summary judgment where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits,
if any, show that there is no genuine dispute as to any material
fact and that the moving party is entitled to judgment as a matter
of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In
this case, there is insufficient evidence to constitute a genuine
issue
for
trial.
The
plaintiff
has
failed
to
identify
a
constitutionally protected property interest, and therefore his §
1983 claim fails as a matter of law. The individual defendants are
entitled
to
qualified
immunity,
and
all
defendants
in
their
official capacities, as well as Jefferson County, are entitled to
summary judgment.
Accordingly,
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IT IS HEREBY ORDERED that the defendants’ motion for summary
judgment (docket entry 46) is GRANTED.
SO ORDERED, this the 15th day of May, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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