REPLY BRIEF OF APPELLANT, HINDS COUNTY, MISSISSIPPI

Transcription

1 E-Filed Document Jul :58: CA SCT Pages: 24 IN THE SUPREME COURT OF MISSISSIPPI NO CA HINDS COUNTY, MISSISSIPPI; CITY OF JACKSON, MISSISSIPPI; BILLY JADE (JAY) ALBRIGHT AND MISSISSIPPI BUREAU OF NARCOTICS APPELLANTS v. RONNIE BURTON APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT NO. 25CI1:09CV445-WLK REPLY BRIEF OF APPELLANT, HINDS COUNTY, MISSISSIPPI ORAL ARGUMENT REQUESTED J. Lawson Hester (MBN 2394) Jason E. Dare (MBN ) WYATT, TARRANT & COMBS, LLP Post Office Box Jackson, Mississippi Telephone: Facsimile: Attorneys of Record for Appellant, Hinds County, Mississippi

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii-iii I. STATEMENT OF THE ISSUES...1 II. STATEMENT OF THE CASE A. Nature of the Case...2 B. Course of Proceedings & Disposition C. Statement of Relevant Facts III. SUMMARY OF THE ARGUMENT IV. ARGUMENT A. Whether the trial court erred as a matter of law in finding Hinds County jointly and severally liable with the other, separate Defendants, despite the statutory mandates in MISS. CODE ANN B. Whether the trial court erred as a matter of law in finding that Hinds County was not entitled to sovereign immunity pursuant to the Mississippi Tort Claims Act i. Inmate Exemption MISS. CODE ANN (1)(m) ii. Law Enforcement Exemption - MISS. CODE ANN (1)(c) C. Whether the trial court erred as a matter of law in holding that Plaintiff s defective notice of claim was not a statutory prohibition to Plaintiff s claims against Hinds County D. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Pre- Judgment Interest Against Hinds County...17 E. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Post Judgment Interest at a Rate of 8.0% V. CONCLUSION...18 CERTIFICATE OF SERVICE...20 i

3 TABLE OF AUTHORITIES CASES Page(s) Bessent v. Clark, 974 So.2d 928 (Miss. App. 2007)...11 Bluewater Logistics, LLC v. Williford, 55 So. 3d 148 (Miss. 2011)...17 Borne v. Estate of Carraway, 118 So. 3d 571 (Miss. 2013)...10 Brooks v. Pennington, 995 So. 2d 733 (Miss. App. 2007) Burton v. Owens, 511 F. App'x 385 (5th Cir. 2013)...13 City of Jackson v. Shavers, 97 So. 3d 686 (Miss. 2012)...14 City of Laurel v. Williams, 21 So. 3d 1170 (Miss. 2009)...14 Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131 (Miss. App. 1999)...10 Ducksworth v. Rook, No. 2:14cv146-KS-MTP, 2015 WL , at *4 (S.D. Miss. Feb. 20, 2015)...14 Fleming v. Tunica County, 497 F. App x 381 (5th Cir. 2012)...11 Parker v. Mississippi Game & Fish Comm n, 555 So. 2d 725 (Miss. 1989)...12 Phillips v. Miss. Dep't of Pub. Safety, 978 So. 2d 656 (Miss. 2008)...14 Price v. Clark, 21 So. 3d 509 (Miss. 2009) Watson v. Watson, 882 So. 2d 95 (Miss. 2004)...18 ii

4 STATUTES MISS. CODE ANN MISS. CODE ANN , 6, MISS CODE ANN , 17 MISS. CODE ANN MISS. CODE ANN MISS CODE ANN , 7-10 iii

5 I. STATEMENT OF THE ISSUES. A. Whether the trial court erred as a matter of law in finding Hinds County jointly and severally liable with the other, separate Defendants, despite the statutory mandates in MISS. CODE ANN B. Whether the trial court erred as a matter of law in finding that Hinds County was not entitled to sovereign immunity pursuant to the Mississippi Tort Claims Act. C. Whether the trial court erred as a matter of law in holding that Plaintiff s defective notice of claim was not a statutory prohibition to Plaintiff s claims against Hinds County. D. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Pre- Judgment Interest Against Hinds County. E. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Post Judgment Interest at a Rate of 8.0%. 1

6 II. STATEMENT OF THE CASE. A. Nature of the Case. At the trial of this cause, Appellee / Plaintiff, Ronnie Burton, sought damages against the City of Jackson, Mississippi, the Mississippi Bureau of Narcotics ( MBN ) and Officer Jay Albright for a gunshot wound to Burton s shoulder, allegedly caused by Officer Albright on September 12, Additionally, Plaintiff sought damages against Hinds County, Mississippi for the incarceration of Burton in the Hinds County Detention Center in Raymond, Mississippi ( Raymond Detention Center ) for a 48 hour period from September 13, 2008, through September 15, There is no dispute among the parties that Hinds County, Mississippi is a political subdivision of the State of Mississippi, and thus entitled to the protections, limitations and immunities of the Mississippi Tort Claims Act ( MTCA ), MISS. CODE ANN et seq. B. Course of Proceedings & Disposition. On or around May 27, 2009, Plaintiff, Ronnie Burton sent a notice of claim to the Hinds County Chancery Clerk, Eddie Jean Carr, which alleged a date of injury of September 12, 2008, and provided that Plaintiff had sustained injuries on or about September 12, 2008 (sic) when officers of the Hinds County Sheriff s Department shot [Burton] in the back and arrested him. Notice of Claim (Vol. 1, R. 83). Plaintiff filed his First Amended Complaint with the Circuit Court of Hinds County, Mississippi, First Judicial District, in cause number 25CI1:09cv445- WLK ( trial court ) on November 10, 2009, and for the first time alleged claims against Defendant, Hinds County. First Amended Complaint (Vol. 1, R ). On February 2, 2011, Plaintiff filed his Second Amended Complaint with the trial court, which alleged claims against Defendants, City of Jackson, Billy Jade (Jay) Albright, the Mississippi Bureau of Narcotics and Hinds County, for (1) an injunction prohibiting future conduct of a similar character kind or 2

7 nature, (2) negligent, grossly negligent, and wanton failure in hiring and to monitor, train, and supervise the officers involved, (3) intentional and/or negligent infliction of emotional distress, (4) civil assault and battery, (5) wrongful (malicious) prosecution, and (5) false arrest / false imprisonment. Second Amended Complaint (Vol. 3, R ). Plaintiff did not request any relief in the form of pre-judgment or post judgment interest in his Second Amended Complaint. Id. (Vol. 3, R. 313). After the filing of multiple motions to dismiss and/or for summary judgment by Hinds County, all of which were denied, the bench trial in this cause began on January 23, See eg. Motion to Dismiss with Prejudice, or Alternatively, Motion for Summary Judgment (Vol. 2, R ); Motion for Summary Judgment (Vol. 3, R ); Ore Tenus Motion (Vol 1, T ). The trial of this cause concluded on January 26, 2012, with the undersigned counsel for Hinds County renewing all requisite motions. The trial court entered its Opinion & Order on January 6, 2014, and specifically found Hinds County liable to Ronnie Burton on his claims for false imprisonment and negligent infliction of emotional distress. Opinion & Order (Vol. 6, R ). The trial court also found that Hinds County was jointly and severally liable for the total judgment of $350,000. Id. (Vol. 6, R ). The trial court entered its Final Judgment on January 15, 2014, which was consistent with its Opinion and Order, and additionally found Hinds County responsible for prejudgment and post-judgment interest thereon, at the rate of eight percent (8%) per annum. Final Judgment (Vol. 7, R ). Hinds County filed its Motion to Alter or Amend Judgment on January 22, 2014 (Vol. 7, R ), which was denied by the trial court on July 15, Order (Vol. 9, R ). Hinds County timely filed its Notice of Appeal on July 18, 2014 (Vol. 9, R ), and herein seeks for this Court to reverse the trial court and render judgment in its favor. 3

8 C. Statement of Relevant Facts. According to the testimony of Plaintiff, Ronnie Burton, at the trial of this cause, Plaintiff was sitting at a residence on Lyndon B. Johnson Street in Jackson, Mississippi, when at or around 8:30 p.m. to 9:00 p.m., he noticed several cars approaching the residence and began to run away. Testimony of Plaintiff (Vol. 1, T ). While running away from the residence, Plaintiff felt blood running down his arm and realized that he had been shot in the shoulder. Id. (Vol. 1, T. 35). The vehicles that Plaintiff was running from were part of a Jackson Enforcement Team ( JET ) action, 1 and it was uncontested at trial that Officer Albright was the only law enforcement officer with JET that fire a shot during the incident at issue. Testimony of Michael Perkins (Vol. 2, T ); Testimony of Defendant Albright (Vol. 2, T. 185). Deputy Keith Burnett was a Hinds County Sheriff s Deputy who was a passenger in the first vehicle in JET line of cars - a red pick-up truck - and was riding in the back, driver s side seat. Testimony of Keith Burnett (Vol. 4, T. 554). Pursuant to the trial testimony of Deputy Burnett, it was uncontested at trial that no one with Hinds County fired a shot on the night of September 12, Id. It was also uncontested at trial that no one with Hinds County arrested Ronnie Burton or was involved in any criminal proceedings against Plaintiff. Id. (Vol. 4, T. 555); see also Testimony of Rick Van Egmond (Vol. 2, T ); (Trial Exhibit 5). The first involvement that Hinds County had with Ronnie Burton was when Plaintiff was booked into the Raymond Detention Center on September 13, 2008, at 5:10 p.m. Testimony of Rick Van Egmond (Vol. 2, T. 236); (Trial Exhibit 5, pg. 2 of 23). Plaintiff remained incarcerated at the Raymond Detention Center through Monday, September 15, 2008, at 4:28 p.m. Testimony 1 JET is a joint and cooperative effort to enforce the criminal laws of the State of Mississippi with regards to controlled substances and related criminal activity, and created pursuant to the authority of MISS. CODE ANN et seq. JET was formed by an interlocal agreement between the Jackson Police Department, the Hinds County Sheriff s Department and the Mississippi Bureau of Narcotics. see Testimony of Michael Perkins (Vol. 1, T. 143); Interlocal Agreement (Trial Exhibit P-12). 4

9 of Rick Van Egmond (Vol. 2, T. 241); (Trial Exhibit 5, pg. 16 of 23). Prior to his release from the Raymond Detention Center, Ronnie Burton was transported to the City of Jackson Municipal Court by the Jackson Police Department, which ordered Release No Action on all charges against Plaintiff. (Trial Exhibit 5, pg. 19 of 23). Burton was then transported back to the Raymond Detention Center by the Jackson Police Department, and released. Testimony of Rick Van Egmond (Vol. 2, T. 249). Plaintiff admitted that he was an inmate with at the Raymond Detention Center at all times material to his claim against Hinds County. Testimony of Plaintiff (Vol. 1, T. 107). While being incarcerated in the Raymond Detention Center, Plaintiff alleges that he was without a shirt, did not receive a change of the dressings covering his wound for the first 24 hours of incarceration, and received Ibuprofen 800 mg for pain instead of Percocet previously prescribed by a University of Mississippi Medical Center ( UMMC ) physician. Id. (Vol. 1, T ). III. SUMMARY OF THE ARGUMENT. The trial court erred as a matter of law by imposing joint and several liability on Hinds County. In its Opinion and Order (Vol. 6, R. 889) and Final Judgment (Vol. 7, R. 901), the trial court found that Hinds County was jointly and severally liable for the full award of damages. Such an award, however, is contrary to the statutory mandates of MISS CODE ANN , especially where the trial court did not make a determination that Hinds County colluded with the other Defendants in this matter, and the record does not reflect any such collusion. Accordingly, Hinds County respectfully requests that this Court reverse the judgment of the trial court and remand this case for an allocation of fault to the Defendants. Additionally, the trial court erred as a matter of law in holding that Hinds County is not entitled to sovereign immunity pursuant to the MTCA. It has been uncontested that Hinds County personnel were not personally involved in the shooting of Ronnie Burton, and the only 5

10 theory of liability against Hinds County (i.e. for false imprisonment and negligent infliction of emotional distress) stems from the time when Plaintiff was a pretrial detainee in the Raymond Detention Center. Accordingly, the inmate exemption of MISS. CODE ANN (1)(m) precludes the judgment against Hinds County, and this Defendant requests on appeal that the judgment against it be reversed and rendered. The law enforcement exemption of MISS. CODE ANN (1)(c) also serves to bar Plaintiff s claims against Hinds County. There was no testimony at trial that Hinds County was personally involved with the arrest, investigation of criminal charges or criminal prosecution of Ronnie Burton. Instead, Hinds County merely maintained a jail in which Burton was housed for less than 48 hours pursuant to the arrest report submitted by Agent Ronald Rhodes, Detective K. Brown and Detective A. Clinton. See (Trial Exhibit 5, pg. 6 of 23). There was no specific finding by the trial court that any Hinds County personnel acted with reckless disregard, which is a requirement pursuant to the theory of the case against Hinds County. Accordingly, the law enforcement exemption of MISS. CODE ANN (1)(c) precludes the judgment against Hinds County, and this Defendant requests on appeal that the judgment against it be reversed and rendered. This Court should reverse and render the judgment against Hinds County as Plaintiff failed to provide this Defendant with a notice of claim relating to the incarceration of Ronnie Burton at the Raymond Detention Center. Plaintiff s notice of claim (Vol. 1, R. 83) relates to the date of September 12, 2008, when Burton was shot in the shoulder. There is no reference in the notice of claim to a false imprisonment claim against Hinds County, and there is no reference to any incident that may have occurred between September 13, 2008, and September 15, 2008, while Plaintiff was incarcerated. For these reasons, the trial court improperly denied Hinds County s motions to dismiss premised on deficient notice of claim, and Hinds County 6

11 respectfully requests that this Court reverse the trial court and render judgment in its favor based on this deficiency. Finally, the trial court erred as a matter of law in awarding Plaintiff pre-judgment and post judgment interest against Hinds County. Plaintiff did not seek either pre-judgment or post judgment interest in his Second Amended Complaint, and therefore, should not have been awarded such relief by the trial court. Moreover, Hinds County is immune from pre-judgment interest pursuant to MISS CODE ANN , and the trial court erred as a matter of law in awarding post judgment interest at the statutory rate of 8.0% without taking into account today s prevailing interest rates. For these reasons, Hinds County respectfully requests that this Court reverse and render on the award of pre-judgment interest, and reverse and remand on the issue of post judgment interest awarded at a statutory rate. IV. ARGUMENT. A. Whether the trial court erred as a matter of law in finding Hinds County jointly and severally liable with the other, separate Defendants, despite the statutory mandates in MISS. CODE ANN In his Brief of Appellee, Burton argues that Hinds County can be held jointly and severally liable pursuant to (4), which provides that [j]oint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. MISS CODE ANN (4). Plaintiff argues in this regard that because the City of Jackson, Hinds County, MBN and Officer Albright were all found liable for negligent infliction of emotional distress by the trial court, such finding is clear evidence of a common plan or design. Nothing could be further from the truth, as the facts of this cause of action presented to the trial court show that the fault alleged against Hinds County occurred on different dates and are wholly separate and apart from the fault alleged against the City of Jackson, MBN and Officer Albright. 7

12 The trial court found that Hinds County was liable for false imprisonment and negligent infliction of emotional distress. Opinion & Order (Vol. 6, R ). In this regard, the trial court specifically found as follows: The Court finds the City of Jackson, Hinds, MBN, and Officer Albright liable for negligent infliction of emotional distress. In order to recover under a claim for negligent infliction of emotional distress a plaintiff must prove physical manifestation of injury or demonstrable harm, whether it be physical or mental, and that harm must have been reasonably forseeable to the defendant. American Bankers Ins. Co. of Fla. v. Wells, 819 So.2d 1196 (Miss. 2001). It is undisputed that Plaintiff suffered a gunshot wound to the back. Furthermore, Albrights (sic) actions were certainly reasonably foreseeable, as Defendant Albright admitted to firing his weapon toward a group of people, wherein Plaintiff was in the line of fire. Defendant Albright s recklessness proximately caused Plaintiff s physical injury of a gunshot wound to the shoulder, and Defendants City and MBN are vicariously liable for Defendant Albright s recklessness as he was acting within the course and scope of his employment. This Court finds the actions of the Defendants caused the Plaintiff emotional distress and for such they are liable to the Plaintiff. Id. Nothing in this section by the Court evidences a finding of a common plan or design to commit a tortious act, or actively take part in it. It was uncontested at trial that there were Hinds County Sheriff s Department deputies on the scene when Burton was allegedly shot. More importantly, though, it was uncontested that no one with Hinds County fired a shot on the night of September 12, Testimony of Keith Burnett (Vol. 4, T. 554). It was also uncontested at trial that no one with Hinds County arrested Ronnie Burton or was involved in any criminal proceedings against Plaintiff. Id. (Vol. 4, T. 555); see also Testimony of Rick Van Egmond (Vol. 2, T ); (Trial Exhibit 5). The mere fact that Hinds County deputies were present at the time Burton was allegedly shot does not equate to joint and several liability under (4). To extend the reach of (4) to Hinds County in this matter would be akin to holding any innocent bystander jointly and severally liable with all tort-feasors for merely witnessing a tort. In its Findings of Fact, the trial court found as follows with regards to Burton s 8

13 incarceration at the Raymond Detention Center: At the time of his booking, the plaintiff gave his prescription [for Percocet] to detention center personnel and was told that they could not fill the actual prescription, but they could give him medicine in place of it. During his time at the detention facility, Burton received 800 milligrams of Ibuprofen rather than Percocet. Although he suffered no further physical injuries, Burton asserts he was in pain during the time he was denied his prescribed medication. Opinion & Order (Vol. 6, R. 891). This finding of fact was not incorporated into the trial court s foregoing conclusion of law on negligent infliction of emotional distress, so it is not clear whether the negligent infliction of emotional distress related to whether or not Burton was provided Percocet. What is clear is that any alleged actions or inactions by Hinds County while Burton was incarcerated at the Raymond Detention Center cannot be grounds for a joint and several liability instruction under (4), as Burton s incarceration was a separately alleged tortious act from the shooting on September 12, No one with Hinds County had any involvement with Ronnie Burton until Plaintiff was booked into the Raymond Detention Center. It is uncontested that no one with Hinds County fired a shot on September 12, 2008, no one with Hinds County arrested Burton on September 12, 2008, no one with Hinds County transported Burton to the University of Mississippi Medical Center ( UMMC ) on September 12, 2008, and/or stayed with him that night, no one with Hinds County transported Burton to the Raymond Detention Center on September 13, 2008, and no one with Hinds County investigated and/or prosecuted Burton based on any criminal charges pending against him. The only involvement alleged against Hinds County is that it housed him as a pretrial detainee from September 13-15, There has been no finding of liability, vicarious or otherwise, against Hinds County related to the shooting and arrest of Burton on September 12, Accordingly, it is inconceivable that Hinds County can be jointly and severally liable with the City of Jackson, MBN and Officer Albright when Hinds County had no personal 9

14 involvement in the alleged actions or inactions claimed against those separate Defendants. Due to the inclusion of the terms consciously and deliberately in (4), Hinds County also submits that a joint and several liability instruction can never be included in a negligent infliction of emotional distress case, as compared to an intentional infliction of emotional distress case. In order to prove that defendants consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it a plaintiff must prove more than mere negligence. Instead, Plaintiff must prove that the defendants colluded to commit a tortious act. Borne v. Estate of Carraway, 118 So. 3d 571, 588 ( 47) (Miss. 2013). Stated another way, joint and several liability is reserved for intentional actors. Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1137 ( 23) (Miss. App. 1999) (Applying prior, although identical, portion of statute in MISS. CODE ANN (6) (1998)). There was no evidence before the trial court that Hinds County consciously and deliberately [pursued] a common plan or design [with Officer Albright, MBN and/or the City of Jackson] to commit a tortious act, or actively [took] part in [the tortious act]. MISS. CODE. ANN (2004). Although Hinds County requests that the judgment by the Hinds County Circuit Court be reversed and rendered in the sections below, Hinds County requests in this section that the Final Judgment of the Circuit Court of Hinds County, Mississippi be reversed and remanded to the trial court for an apportionment of damages. B. Whether the trial court erred as a matter of law in finding that Hinds County was not entitled to sovereign immunity pursuant to the Mississippi Tort Claims Act. i. Inmate Exemption - MISS. CODE ANN (1)(m). All claims against Hinds County relate to alleged actions or inactions that occurred after Plaintiff was booked into the Raymond Detention Center on September 13, 2008, but before he was finally released on September 15, In other words, Burton was a pretrial detainee at all 10

15 times material to his negligent infliction of emotional distress claim and false imprisonment claim against Hinds County, and Plaintiff s claims are barred by the inmate exemption pursuant to MISS. CODE ANN (1)(m). 2 In his Brief of Appellee, Plaintiff does not argue that a pretrial detainee does not fall under the inmate exemption, nor does he argue that the lawfulness of his arrest has any bearing on the inmate exemption. Instead, citing Brooks v. Pennington, 995 So. 2d 733 (Miss. App. 2007), Burton argues that he was not incarcerated after he was booked into the Raymond Detention Center. Plaintiff s argument is a prime example of how the Brooks v. Pennington decision has confused trial courts analyses related to (1)(m), and why it should be overruled by this Court. The inmate exemption under the MTCA reads as follows: (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed. MISS CODE ANN (1)(m). This subsection of the MTCA provides immunity to government entities and employees from claims of incarcerated individuals.... Fleming v. Tunica County, 497 F. App x 381, 390 (5th Cir. 2012) (quoting Bessent v. Clark, 974 So. 2d 928, 930, 933 (Miss. App. 2007)). Plaintiff argues that [u]nder Brooks, Appellee Burton s causes of action against Appellant Hinds accrued upon Appellant Hinds acceptance of Burton. Brief of Appellee, pg. 2 The trial court never ruled on Hinds County s multiple motions related to immunity, and only specifically found that [t]he City of Jackson, MBN, and Officer Jay Albright are not entitled to governmental immunity. Opinion & Order (Vol. 6, R. 891). 11

16 14. The problem with this argument is that at that exact moment in time, once Burton crossed the jailhouse doors, he became a pretrial detainee and incarcerated within the Raymond Detention Center. The Mississippi Court of Appeal in Brooks held that a complaint for false arrest and false imprisonment accrue[s] on the date of arrest. Brooks, 995 So. 2d at 738 ( 8) (quoting Parker v. Mississippi Game & Fish Comm n, 555 So.2d 725, 727 (Miss. 1989)). On the date of Burton s arrest (i.e., September 12, 2008), however, Hinds County had taken no action with regards to Burton. Instead, it was not until the following day that Burton was brought from UMMC to the Raymond Detention Center and booked into jail. Hinds County made no determination of whether the Jackson Police Department had probable cause to arrest Burton, nor was Hinds County required under applicable law to make such a determination. Instead, it was mandatory that Hinds County accept Burton once the proper paperwork and arrest forms had been filed with Hinds County. See Testimony of Rick Van Egmond (Vol. 2, T. 237). It is uncontested based upon the testimony at trial that from the time Plaintiff was accepted by the Raymond Detention Center until the time he was released, Burton was considered an inmate. Id. (Vol. 2, T. 238). It is also uncontested that the Raymond Detention Center served as nothing more than a repository for Burton until he presented for an initial appearance and then was released. Based upon the testimony at trial, no cause of action for false imprisonment against Hinds County could have accrued until Burton was imprisoned at the Raymond Detention Center. Once he became imprisoned, (1)(m) barred any and all state law claims against Hinds County based on the imprisonment. It should be noted that a pretrial detainee is not without recourse when his state law claims are barred under (1)(m), as the plaintiff could possess a right of action under the procedural vehicle of 42 U.S.C Ronnie Burton 12

17 in fact filed two federal suits, one appeal to the Fifth Circuit Court of Appeals and one attempted appeal to the United States Supreme Court in relation to his incarceration at the Raymond Detention Center from September 13, 2008, to September 15, See Burton v. Hinds County et al, No. 3:11cv216-HTW-LRA (S.D. Miss.); Burton v. McMillin, et al, No. 3:11cv646-CWR- FKB (S.D. Miss.); Burton v. Owens, 511 F. App'x 385 (5th Cir. 2013) cert. denied, 134 S. Ct. 89, 187 L. Ed. 2d 32 (2013). Once an individual is booked into a county jail within the State of Mississippi, (1)(m) precludes that individual from filing suit against the county that owns the jail based upon any theory of liability that arises while the individual is incarcerated. It is self-evident that Burton s claim for false imprisonment relating to the time he was imprisoned in the Raymond Detention Center falls within this inmate exemption. Pursuant to the inmate exemption of (1)(m), Hinds County respectfully requests that this Court reverse the trial court s judgment against Hinds County and render judgment in favor of this Defendant. ii. Law Enforcement Exemption - MISS. CODE ANN (1)(c). Plaintiff s argument in response to Hinds County s Brief of Appellant concerning the law enforcement exemption of (1)(c) is three sentences, and merely argues that because the trial court found Hinds County liable for false arrest, it should be affirmed. Brief of Appellee, pg. 15. As noted above, Hinds County was not found liable for false arrest, as it was uncontested at trial that Hinds County was not involved in the arrest of Burton. Instead, Hinds County was found liable for false imprisonment and negligent infliction of emotion distress. Opinion & Order (Vol. 6, R. 896). There is no specific finding that anyone with Hinds County acted in reckless disregard of the safety and well-being of Ronnie Burton at any time during his incarceration. MISS. CODE ANN (1)(c). Reckless disregard is a higher standard than gross negligence, and it embraces willful 13

18 or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. City of Jackson v. Shavers, 97 So. 3d 686, 688 ( 8) (Miss. 2012) (quoting Phillips v. Miss. Dep't of Pub. Safety, 978 So. 2d 656, 661 (Miss. 2008)). It can be found where there is a deliberate disregard of an unreasonable risk and a high probability of harm. Shavers, 97 So. 3d at 688 ( 8) (citing City of Laurel v. Williams, 21 So. 3d 1170, 1175 (Miss. 2009)). Pursuant to the law enforcement exemption, Hinds County cannot be liable for any claim of negligent infliction of emotional distress. See eg. Ducksworth v. Rook, No. 2:14cv146-KS- MTP, 2015 WL , at *4 (S.D. Miss. Feb. 20, 2015) ( [Section] (1)(c) does provide immunity against Plaintiff's claims of negligence, gross negligence, and negligent infliction of emotional distress, as such claims necessarily do not reach the reckless disregard standard. ). Moreover, Hinds County cannot be liable under a theory of false imprisonment where there is no finding by the trial court, or evidence before the trial court, that anyone with Hinds County acted with reckless disregard. In his false imprisonment claim against Hinds County, this Defendant is alleged to be nothing more than a repository for Burton. Hinds County did not arrest Burton on the night of September 12, 2008, and was not involved in the investigation of Burton s criminal charges. Hinds County personnel did not find Burton hiding under the car, and accordingly, could not have made a determination that his gun was cleared and that no shots had been fired from his weapon. Opinion & Order (Vol. 6, R. 896). Hinds County personnel had no way of knowing that Burton s clip was never placed in his weapon and, therefore, his weapon was never loaded. Id. Thus, Hinds County personnel had no access to Burton s 9-mm pistol that he admitted having on his person on the night of September 12, 2008, and could not have made a determination if it had been fired. Hinds County personnel at the Raymond Detention Center merely accepted Plaintiff for booking on September 13, 2008, after he had been medically cleared by UMMC, and based upon the charges filed by the Jackson 14

19 Police Department. The mere acceptance of Burton premised on charges filed by the Jackson Police Department, in and of itself, cannot rise to the level of reckless disregard, much less to a tortious act. Accordingly, Hinds County respectfully requests that this Court reverse the judgment against it by the trial court, and render judgment in its favor. C. Whether the trial court erred as a matter of law in holding that Plaintiff s defective notice of claim was not a statutory prohibition to Plaintiff s claims against Hinds County. Hinds County does not dispute that Plaintiff submitted a notice of claim prior to filing suit, nor does it dispute that substantial compliance with the contents of (2) is required. See Price v. Clark, 21 So. 3d 509, 520 ( 20) (Miss. 2009). Hinds County does contend that Burton failed to substantially comply with the notice provision in regards to his false imprisonment claim. Plaintiff s notice of claim reads as follows: Please be advised that this firm has been retained to represent Ronnie Burton in his claims against Hinds County and the Hinds County Sheriff s Department for injuries sustained on or about September 12, 2008 (sic) when officers of the Hinds County Sheriff s Department shot claimant in the back and arrested him. Other claims against said defendants include but are not limited to false arrest, malicious prosecution, due process violations, discrimination, intentional infliction of emotional distress, negligence per se, negligent infliction of emotional distress, malicious abuse of process, and negligent supervision, hiring, training, and retention of the deputies in question. Notice of Claim (Vol. 1, R. 83). As stated throughout this Reply Brief, Hinds County personnel were not involved in the shooting or arrest of Burton on September 12, Instead, Hinds County was only involved in the detention of Burton from September 13, 2008, through September 15, In Price v. Clark, 21 So. 3d 509 (Miss. 2009), this Court held that the plaintiffs had not substantially complied with the pre-suit notice requirement of (2), based on the following findings: 15

20 The three letters, identical in content, contained no language concerning the time period when Mr. Price allegedly suffered his injury. Also, there also was no mention of the names of the persons involved. In fact, no mention of any physicians names appeared in the body of the letter. While Dr. Clark s letter put him on sufficient notice, the letters addressed to Cleveland Medical Clinic, PLLC, Providence Healthcare Company, and Alliance could have referred to anyone employed at those facilities. Price, 21 So. 3d at 520 ( 21). Plaintiff s notice of claim contains no reference to any action or occurrence after September 12, Specifically, there is no reference to his incarceration at the Raymond Detention Center from September 13-15, Plaintiff argues that his notice of claim was drafted and delivered pre-discovery; therefore, several of the facts are undetermined at the time a Notice of Claim is drafted. Brief of Appellee, pg. 16. Surely, though, Plaintiff knew when his notice of claim was drafted and delivered on or around May 27, 2009, that he had been incarcerated in the Raymond Detention Center from September 13, 2008, through September 15, If he wanted to include a claim related to his incarceration, such as for false imprisonment, such facts related to his incarceration could have been easily added to the notice of claim letter. None of these facts were included, and accordingly, Hinds County had no reason to believe that Plaintiff intended to bring claims related to Burton s incarceration. Substantial compliance is not akin to non-compliance. Substantial compliance with (2) required that Plaintiff provide this Defendant with a short and plain statement of the facts upon which the claim [for false imprisonment] is based. Because no such facts were contained in Plaintiff s notice of claim, Hinds County respectfully requests that the judgment entered against it by the trial court be reversed, and that judgment be rendered in favor of this Defendant. 16

21 D. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Pre-Judgment Interest Against Hinds County. Plaintiff makes no argument in his Brief of Appellee contrary to the assertion that Hinds County is immune from pre-judgment interest pursuant to MISS CODE ANN (2). Accordingly, Hinds County respectfully requests that the trial court s award of pre-judgment interest be reversed and rendered. E. Whether the Trial Court Erred as a Matter of Law in Awarding Plaintiff Post Judgment Interest at a Rate of 8.0%. The trial court s January 15, 2014 Final Judgment awarded post judgment interest to Plaintiff, Ronnie Burton, against Hinds County at the statutory rate of 8.0%. Final Judgment (Vol. 7, R. 902). The Court provided no explanation for its use of an 8.0% rate of interest, and awarded such interest notwithstanding that the Plaintiff s Second Amended Complaint did not specifically request post judgment interest. Second Amended Complaint (Vol. 3, R ). The trial court did not examine the rate of post judgment interest in light of today s prevailing interest rates, but instead awarded the old statutory rate of 8.0%. According to the opinion of Bluewater Logistics, LLC v. Williford, 55 So. 3d 148 (Miss. 2011), post judgment interest should be set based on proof and market value, not the old statutory rate. Williford, 55 So.3d at ( 73-75). Plaintiff offered no proof of the proper interest rate nor any evidence of prevailing market interest rates. As such, the assignment of an 8.0% interest rate represents an underserved financial windfall to the Plaintiff. In the Brief of Appellee, Ronnie Burton argues without basis that the trial court essentially made an unexpressed determination that 8.0% was a fair rate to be assigned for postjudgment interest. However, the record, and the Final Judgment itself, are devoid of any indication that the assigned rate was the product of the trial court s consideration of any of the relevant factors. Where the trial court awards post judgment interest at a statutory rate of 8.0%, 17

22 this Court on appeal may properly reverse the judgment and remand so that the trial court may reexamine this rate in light of today s prevailing interest rates. Watson v. Watson, 882 So. 2d 95, 111 ( 77) (Miss. 2004) (citing MISS. CODE ANN ). For these reasons, Hinds County respectfully requests that this Court reverse the trial court s award of 8.0% post judgment interest, and remand the issue so that the trial court may make a determination of post judgment interest in accordance with and more reflective of the appropriate, prevailing market interest rates. V. CONCLUSION Premised upon the foregoing legal precedent and analysis, and all legal precedent and analysis in this Defendant s Brief of Appellant, Hinds County, Mississippi respectfully requests that this Court reverse the Final Judgment entered by the Circuit Court of Hinds County, Mississippi against this Defendant, and render judgment in favor of Hinds County, Mississippi. In the alternative, Hinds County respectfully requests that this Court reverse the trial court on the issues of joint and several liability and post judgment interest, and remand this matter to the trial court for an apportionment of fault and a determination of a proper post judgment interest rate. RESPECTFULLY SUBMITTED, this 15 th day of July, HINDS COUNTY, MISSISSIPPI DEFENDANT / APPELLANT BY: /s/ Jason E. Dare JASON E. DARE 18

23 OF COUNSEL: J. Lawson Hester (MB # 2394) lhester@wyattfirm.com Jason E. Dare (MB #100973) jdare@wyattfirm.com WYATT, TARRANT & COMBS, LLP Post Office Box Jackson, Mississippi Telephone: Facsimile:

24 CERTIFICATE OF SERVICE I, JASON E. DARE, hereby certify that on this day, I electronically filed the foregoing Reply Brief of Appellant, Hinds County, Mississippi with the Clerk of the Court using the MEC filing system, which sent notification to the following: Carlos E. Moore, Esq. (moorelawoffice@bellsouth.net) Tangela Hollis, Esq. (tangalahollis@bellsouth.net) MOORE LAW OFFICE, PLLC Post Office Box 1487 Grenada, Mississippi Lara E. Gill, Esq. (lgill@city.jackson.ms.us) Lashundra Jackson-Winters, Esq. (lwinters@city.jackson.ms.us) OFFICE OF THE CITY ATTORNEY PO Box 2779 Jackson, MS John T. Kitchens, Esq. (john@kitchenshardwick.com) Thomas E Whitfield, Jr., Esq. (tommy@whitfieldlaw.org) KITCHENS HARDWICK & WHITFIELD PLLC 1000 Lake Village Cir Brandon, MS Additionally, I hereby certify that I have this day mailed via US Mail, postage pre-paid, a true and correct copy of the foregoing Reply Brief of Appellant, Hinds County, Mississippi to the following: Hon. Winston Kidd Hinds County Circuit Court Judge PO Box 327 Jackson, Mississippi DATED, this 15 th day of July, /s/ Jason E. Dare JASON E. DARE 20