Brown v. Lee

JOHNNY LEE BROWN PLAINTIFF v. MIKE LEE, in his individualand official capacities as SHERIFFOF SCOTT COUNTY, MISSISSIPPI et al DEFENDANTS

CIVIL ACTION No.: 3:19-CV-33-HTW-LGI

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

March 31, 2021

ORDER

BEFORE THIS COURT is the Motion to Dismiss [Docket no. 22] filed by defendant. By his motion defendant asks this court to dismiss the complaint against him, for any one (1) or all of three (3) reasons: he was not served within the required timeframe; the statutes of limitations have run; and plaintiff's complaint does not state a claim under the Racketeer Influenced and Corrupt Organizations Act against him. Defendant cites certain Federal Rules of Civil Procedure for authority: Rule 4(m)¹; Rule 12(b)(4)²; Rule 12(b)(5)³; and Rule 12(b)(6)⁴. The plaintiff opposes the motion and its particulars.

I. BACKGROUND FACTS

The relevant parties herein are: Plaintiff Johnny Lee Brown (hereinafter referred to as "Brown" or "plaintiff"); and Defendant Maury Walley (hereinafter referred to as "Walley" or "defendant"). Brown is suing Walley under the auspices of Title 42 U.S.C. § 1983⁵ and the Racketeer Influenced and Corrupt Organizations Act⁶ (hereinafter referred to as "RICO"). Plaintiff accuses Walley, a bail bondsman, of pressuring him to voluntarily dismiss the lawsuit sub judice and to fire his attorney.

His complaint charges the following misconduct:

After Plaintiff bonded out on the charges, he subsequently appeared in court no less than three time[s] as the case moved forward on the docket. Nonetheless, the harassment continued. Plaintiff eventually was forced to move out of his home and move in with his sister, who was also harassed by Defendant [Coty May, a Scott County, Mississippi Deputy Sheriff]. Defendant Walley Bonding has been a co-conspirator and has harassed Plaintiff's family members, encouraging them to dismiss this lawsuit and fire his "lawyer from Jackson" so as to make Plaintiff's life easier. This is lawlessness.

[Docket no. 1, P. 19, ¶ 63]. Walley and approximately eighteen (18) other defendants are named in this lawsuit. This court has dismissed a number of them from this litigation.

II. SERVICE OF PROCESS

Walley first takes umbrage with plaintiff's service of process upon him. Plaintiff filed his lawsuit in this federal forum on January 14, 2019, after having voluntarily dismissed his original complaint without prejudice on the same date. See Brown v. Lee et al, 3:15-CV-686-HTW-LRA[Docket no. 120]. Walley was not named as a defendant in the original iteration of this lawsuit and was first identified when plaintiff filed his complaint in the instant action. The court issued summons as to Walley, among other defendants who had not waived service of process, on March 13, 2019.

On June 11, 2019, plaintiff's counsel filed his Motion for Extension of Time to Serve Process on "New Defendants"⁷ and Coty May [Docket no. 13] because a part-time paralegal in counsel's office, who had since terminated the employment relationship, had, he believed, failed to have process served. This court granted that motion on June 19, 2019. Plaintiff later filed his proof of service of process on October 17, 2019, which reflects that Walley was served back on June 4, 2019.

According to Walley, the time to serve him ran on April 29, 2019 (90 days)⁸ or, in the alternative, on May 29, 2019 (120 days)⁹. Rule 4(m) of the Federal Rules of Civil Procedure gives this court discretion to take one (1) of two (2) actions where the complaint has not been served within the required timeframe: dismiss the complaint against that defendant without prejudice; or order that service be effectuated within a time certain. The court, however, must extend the time for service if the plaintiff shows good cause for his/her/its failure to effect service in the required timeframe. See Fed. R. Civ. P. 4(m). This court already has found that plaintiff had good cause, therefore, Walley's motion on this basis must be denied. See [Text Only Order dated 6/19/2019].

This court also notes that Walley failed to file his Motion to Dismiss within the timeframe required; he was served on June 4, 2019, and acknowledges that he was so served. The summons informed him that his answer was due on June 25, 2019. Walley failed to file an answer to date and, moreover, while a defendant may file a motion to dismiss in lieu of an answer, he did not file such until July 23, 2019. This court finds it interesting that Walley is complaining of plaintiff's filing out of time when he, himself, is culpable for such.

III. STATUTES OF LIMITATIONS

Plaintiff's complaint asserts the following causes of action against Walley: civil rights violation under Title 42 U.S.C. § 1983; suppression of First Amendment rights; deprivation of right to counsel; violation of plaintiff's right to equal protection under the law; conspiracy to deprive constitutional rights under Title 42 U.S.C. § 1983; failure to intervene under Title 42 U.S.C. §§ 1983, 1985, and 1986; conspiracy to deprive constitutional rights under Title 42 U.S.C. § 1985; Mississippi's tort of intentional infliction of emotional distress; and RICO violations. It is unclear from a reading of plaintiff's complaint which causes of action plaintiff intends to apply to Walley. Plaintiff included the same general allegations from his complaint in his RICO statement. This court will discuss the viability of the merits of plaintiff's RICO claim below.

In states that have more than one statute of limitation for personal injury actions, § 1983 actions are governed by the residual or general personal injury statute of limitations. See James v. Saddler, 909 F.2d 834, 836 (5^th Cir. 199); Bernegger v. Department of Revenue, 785 Fed.App'x 209 (5^th Cir. 2019). Under Mississippi jurisprudence, Miss. Code § 15-1-49 governs general personal injury actions and mandates that: "[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after." "[A] cause of action under section 1983 accrues when the plaintiff 'knows or has reason to know of the injury which is the basis of the action.'" Price v. City of San Antonio, Tex., 431 F.3d 890, 893 (5th Cir. 2005) (Quoting Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992)). Fifth Circuit jurisprudence.

In malicious prosecution cases, the United States Court of Appeals for the Fifth Circuit has explained:

We have held that the statute of limitations does not begin running on section 1983 prosecution claims until proceedings have terminated in the plaintiff's favor. SeeEugene v. Alief Independent Sch. Dist., 65 F.3d 1299, 1306 (5th Cir.1995); see also Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir.2003) (en banc) (reaffirming the rule that claims of "constitutional deprivations suffered in a state court prosecution" do not accrue until "criminal proceeding[s] terminate in [the plaintiff's] favor"). Additionally, we have held that when false arrest claims are brought in conjunction with such claims, the false arrest claims are "essentially part" of the prosecution claims and therefore accrue at the same time. See Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir.1995).

Price at 894.

The parties have not provided this court with evidence to indicate when, or if, the criminal proceedings against plaintiff have been finalized and, if so, whether those proceedings were concluded in favor of plaintiff. Accordingly, this court must deny Walley's motion to dismiss on this ground (statute of limitations) without prejudice. Walley may reassert his motion with the proper evidentiary support.

IV. RICO CLAIM

Walley finally asserts, seemingly under Fed. R. Civ. P. Rule 12 (b)(6), that plaintiff has failed to state a claim against him under RICO. Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the United States Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The "pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550U.S. at 555). A complaint must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citation omitted).

"[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint . . . . [C]ourts may also consider matters of which they may take judicial notice." Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996). "[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the] claim." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Travelers Indem. Co. v. Forrest Cty., 164 F. Supp. 3d 899, 902 (S.D. Miss. 2016).

According to Walley, plaintiff made "vague and conclusory allegations" against him in his RICO Statement mandated by Local Rule 83.8. This court now quotes plaintiff's allegations against Walley in his RICO Statement:

L.R.

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