Enlow v. Tishomingo County, Miss. ( 1994 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-7173
HAROLD WAYNE ENLOW, (Angela Deaton, Donathon Enlow,
Lisa James and Martha Enlow, as
Personal Representatives of appellant
Harold Wayne Enlow, for Substitution in the
Place and Stead of the Appellant Harold Wayne Enlow), et al.,
Plaintiffs-Appellants,
VERSUS
TISHOMINGO COUNTY, MISSISSIPPI, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Mississippi
(CA EC89 61 D D)
(January 6, 1995)
Before REYNALDO G. GARZA, DEMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
The plaintiffs filed a § 1983 suit against Tishomingo County,
County Sheriff Richard Dobbs, and State Highway Patrol Investigator
Jim Wall, alleging that the defendants violated the plaintiffs'
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
constitutional and state common law rights. The district court
ruled for the defendants on a variety of motions. The plaintiffs
appealed, and we now affirm.
I.
The facts in this case are described at length in our opinion
disposing of an interlocutory appeal in this case. See Enlow v.
Tishomingo County, 962 F.2d 501, 503-06 (5th Cir. 1992) (Enlow I).
We recount only a portion of those facts here. Throughout the
1980s, Harold Wayne Enlow owned and, with the help of his daughter,
Angela Deaton, operated a skating rink in Iuka, Mississippi. In
September 1988, he leased the premises to a Tennessee company that,
according to Enlow, represented to him that the premises would be
used for non-profit bingo games. Tishomingo County law enforcement
officials received a tip that, in fact, the premises were being
used for illegal gambling. On the night the "bingo game" opened,
Sheriff Dobbs, Investigator Wall, and several other officers raided
the premises.
Enlow challenged Dobbs' authority to raid the operation,
whereupon Enlow was arrested for interfering with the raid.1
Pursuant to Mississippi law at the time of his arrest, Enlow was
1
Enlow specifically was charged with violating a Mississippi
law which prohibits anyone from opposing the seizure of gambling
funds. The statute reads as follows:
Any person or persons who shall oppose the seizure of any such
moneys or appliances by an officer or person so authorized to
make it, shall, on conviction thereof, be liable to a penalty
of fifteen hundred dollars; and any person who shall take any
part of said money after the said seizure shall be declared,
shall be guilty of a misdemeanor, and on conviction thereof,
shall be fined and imprisoned, at the discretion of the court.
MISS. CODE ANN. § 97-33-19.
2
required to post a two percent bond fee, or $60, for executing his
$3,000 security bond to be released from jail.2 The interference
charge against Enlow ultimately was "nol. prossed"3 in February
1989. Dobbs testified below that he urged that the charge, which
is a misdemeanor offense, be dropped so that he could present a
broader range of charges to the next grand jury, whose term was
scheduled to begin in April 1989. Dobbs expected the charges to
include the misdemeanor interference charge along with various
gambling-related charges, one of which is a felony.4
The plaintiffs5 filed this § 1983 suit in March 1989. They
originally complained:
(1) Wall and Dobbs violated Enlow's First Amendment right to
speak out against the raid and his Fourth Amendment right
not to be arrested without probable cause;
2
The bond fee statute, at the time of Enlow's arrest, read as
follows:
Upon every defendant charged with a criminal offense who posts
a cash bail bond, a surety bail bond or property bail bond
conditioned for his appearance at trial, there is hereby
imposed a fee equal to two percent (2%) of the face value of
each bond or twenty dollars ($20), whichever is greater.
MISS. CODE ANN. § 99-1-19(2) (Supp. 1990).
3
This term is short for "nolle prosequi," whereby the
prosecutor declares that he will not prosecute the case further.
BLACK'S LAW DICTIONARY 945 (5th ed. 1979). The nol. pros. order was
entered by the county's Justice Court in February 1989. The term
presumably carries no double jeopardy implications because, as
discussed below, the state eventually indicted and tried Enlow,
along with Deaton, for various gambling-related offenses.
4
The previous grand jury term had expired in September 1988,
meaning no felony indictments could be issued between September
1988 and April 1989.
5
The plaintiffs include not only Enlow and Deaton but also
Harold Enterprises, Inc., which owned a leasehold interest in the
skating rink.
3
(2) the statute pursuant to which Enlow was arrested ("the
interference statute") is facially unconstitutional under
the free speech clause of the First Amendment;
(3) the two percent bond fee statute ("the bond fee statute")
at that time was facially unconstitutional under the due
process clause of the Fourteenth Amendment and the
takings clause of the Fifth Amendment; and
(4) Dobbs violated the plaintiffs' Fourth Amendment right
against improper seizures.
No criminal charges against Enlow and Deaton were pending when they
filed their suit. However, Assistant District Attorney (ADA)
Roland Geddie, as planned, presented a broader range of offenses to
the grand jury in April 1989. Under Geddie's instructions,
Investigator Wall testified before the grand jury regarding the
events surrounding the raid. Wall was the only witness who
testified. The grand jury indicted Enlow and Deaton for various
gambling-related offenses, whereupon Enlow (for the second time)
and Deaton (for the first time) had to pay two percent of their
bond as a fee. The two were prosecuted but were never convicted of
any of the offenses.
In response to the criminal prosecution, the plaintiffs
amended their complaint in April 1989 to include a retaliation
claim against Wall and Dobbs. The plaintiffs specifically
complained:
(1) Wall and Dobbs violated Enlow's and Deaton's First
Amendment rights to sue the officers without retaliation;
and
(2) Wall and Dobbs violated Enlow's and Deaton's Fourteenth
Amendment right against malicious prosecution AND their
state law rights against malicious prosecution and abuse
of process.
4
After considerable discovery, the plaintiffs and Wall each moved
for summary judgment. Wall moved for summary judgment in June
19906 as to the § 1983 claims and the state law malicious
prosecution/abuse of process claims. He specifically argued that
he was entitled to qualified immunity from any claims arising out
of Enlow's and Deaton's arrest in September 1988. In addition,
Wall argued that he was entitled to absolute immunity from any
claims arising from his grand jury testimony. The plaintiffs,
meanwhile, moved for summary judgment in July 1990 on their
constitutional challenges to the interference statute and the bond
fee statute.
The district court issued its ruling in November 1990. See
Enlow v. Tishomingo County, 1990 WL 366913 (N.D. Miss. 1990). The
court first addressed the plaintiffs' motion for summary judgment
as to the constitutionality of the two statutes. The court found
that the interference statute was not facially invalid because it
"is capable of construction that respects the first amendment."
The court also concluded that the bond fee statute violated neither
the fourteenth nor the fifth amendments. The court then addressed
Wall's motion for summary judgment. The court denied Wall's
motion, finding that whether Wall was qualifiedly immune (i.e.,
whether Wall acted as a reasonable officer with a reasonable
understanding of the plaintiffs' constitutional rights) was a fact
6
Wall had moved for summary judgment in April 1989, prior to
any discovery. He argued that he was entitled to qualified
immunity from any of the plaintiffs' claims. The district court
denied Wall's motion in September 1989.
5
issue. The court also rejected Wall's claim of absolute immunity
regarding his grand jury testimony. Wall appealed the court's
denial of his summary judgment motion. We held that the dispute
over the facts regarding Wall's claims of immunity was genuine and,
therefore, affirmed the district court's ruling. See Enlow I, 962
F.2d at 509-13.
The case then proceeded to trial. Following the presentation
of all the evidence, the defendants moved for a directed verdict as
to the plaintiffs' claims that Wall and Dobbs retaliated against
them for filing the § 1983 suit. The court granted the motion.
The plaintiffs then moved for a directed verdict as to their claim
that Sheriff Dobbs improperly seized their property. The court
denied their motion. The outstanding claims (i.e., whether the
defendants violated Enlow's first and fourth amendment rights when
they arrested him during the raid, and whether Sheriff Dobbs
violated the plaintiffs' fourth amendment rights when he seized
their property) were submitted to the jury. The jury ruled in
favor of the defendants as to each claim.
The plaintiffs now appeal: (1) the court's directed verdict
for Wall and Dobbs on the plaintiffs' retaliation claims, (2) the
court's ruling on the constitutionality of both the interference
statute and the bond fee statute, and (3) the court's refusal to
direct a verdict for the plaintiffs' claim that Dobbs improperly
seized their property.
6
II.
A.
We review a directed verdict de novo, applying the same
standard as the district court. Becker v. Paine Webber, Inc., 962
F.2d 524, 526 (5th Cir. 1992). Accordingly, we must view the facts,
and any reasonable inferences that may be drawn therefrom, in the
light most favorable to the non-movant. Turner v. Purina Mills,
Inc., 989 F.2d 1419, 1421 (5th Cir. 1993). If the facts and
inferences point so strongly and overwhelmingly in favor of one
party, such that reasonable men could not arrive at a contrary
verdict, the motion should be granted. Boeing Co. v. Shipman, 411
F.2d 365, 374 (5th Cir. 1969) (en banc). A mere scintilla of
evidence is insufficient to present a question for the jury. Id.
The plaintiffs at trial had claimed that Wall and Dobbs
instigated the state to prosecute Enlow and Deaton in retaliation
for their § 1983 suit and, therefore, violated Enlow's and Deaton's
rights under the First Amendment (i.e., free speech), the
Fourteenth Amendment (i.e., malicious prosecution), and Mississippi
common law (i.e., malicious prosecution and abuse of process). The
court ruled that, as to all of the defendants, the evidence did not
present a question of fact upon which the jury could find that
plaintiffs were indicted and prosecuted in retaliation for filing
their § 1983 lawsuit.7
7
The court alternatively ruled that Wall was entitled to
absolute immunity from any claim arising from his grand jury
testimony. Because we affirm the district court's directed verdict
for the defendants, we do not reach the court's alternative
holding.
7
On appeal, Enlow and Deaton argue that the evidence adduced
below constitutes more than a "scintilla," thereby making a
directed verdict inappropriate.8 They concede that all of it is
circumstantial, but argue that circumstantial evidence sometimes is
sufficient not only to avoid a directed verdict but also to find
liability. The plaintiffs argue that a reasonable jury could have
inferred retaliatory intent because:
(1) Enlow was charged for a felony gambling offense only
after he had filed his § 1983 suit;
(2) Deaton was charged not at the time of the raid but only
after she had filed her § 1983 suit;
(3) Wall admitted that, after he learned of the § 1983 suit,
several fellow officers told Wall he would be "better
off" if Deaton were convicted;
(4) Wall and Dobbs admitted that they discussed the lawsuit
prior to Wall's grand jury appearance;
(5) the timing of the indictments was too coincidental;
(6) Enlow and Deaton were custodially arrested after the
indictments were issued whereas the other named
defendants were not arrested;
8
The plaintiffs initially argue that the district court's
refusal to submit the retaliation claims to the jury violated the
law of the case doctrine because, in Enlow I, we found that
material factual issues precluded summary judgment as to Wall's
immunity claims. The district court rejected this argument below,
reasoning that we had directed the court only to hear the evidence.
The district court's ruling on this issue was correct. When the
evidence in a subsequent trial is substantially different, a prior
legal determination is not binding. Illinois Cent. Gulf R.R. Co. v.
International Paper Co., 889 F.2d 536, 539 (5th Cir. 1989). In
Enlow I, we did not resolve whether the plaintiffs had presented
sufficient evidence to avoid a directed verdict. See Enlow, 962
F.2d at 510-13. Rather, we concluded that sufficient evidence
existed, at that stage of the proceeding, to preclude summary
judgment. Id. Between the court's ruling on Wall's motion for
summary judgment and its ruling on the defendants' joint motion for
directed verdict, the parties had presented all of their evidence.
8
(7) the other named defendants were permitted to plead guilty
to misdemeanor offenses while Enlow and Deaton were tried
for felony offenses; and
(8) Deaton and Enlow at trial below directly contradicted
Wall's grand jury testimony that they insisted during the
raid that the gambling funds belonged to them.
We disagree. The defendants at trial proffered extensive,
uncontroverted direct evidence of their intent, prior to March
1989, to seek indictments. Specifically, each defendant testified
that, as early as October 1988, they discussed their intention to
seek indictments. Sheriff Dobbs also testified that at the meeting
in February 1989, where Enlow's interference charge was nol.
prossed, he stressed his intentions to seek indictments against all
of the operation's participants. The county attorney who was
present at the meeting corroborated Dobbs's testimony. Enlow's
attorney at that time also was present at the meeting. The
attorney did not testify below and, therefore, could not contradict
Dobbs.
We also note that ADA Geddie testified at trial, without
contradiction, that he alone directed the grand jury proceeding
without encouragement or coercion from Wall or Dobbs.
Specifically, Geddie initiated contact with Wall to instruct him to
testify before the grand jury, decided which charges to pursue, and
drafted the indictments. Finally, as to the remaining named
defendants who were not arrested, Dobbs testified that because they
resided in Tennessee, he had no authority to cross state lines and
arrest them. While the plaintiffs correctly note that
circumstantial evidence may be enough to avoid a directed verdict,
9
we cannot overlook the strength of the defendants' direct evidence
to the contrary. In the final analysis, the plaintiffs' claim of
retaliation rests largely on the sequence of litigation, i.e., the
plaintiffs were prosecuted only after they had filed their § 1983
suit. We find this sequence of events, by itself, does not amount
to a reasonable inference of retaliatory intent.
B.
The plaintiffs next appeal the district court's ruling as to
the constitutionality of the interference and the bond fee
statutes.9 We have reviewed the parties' briefs and relevant
portions of the record and have concluded that the district court's
opinion regarding the plaintiffs' constitutional challenges to the
statutes is well reasoned and correctly decided.
C.
Finally, the plaintiffs appeal the district court's refusal to
direct a verdict for the plaintiffs regarding Sheriff Dobbs'
seizure of their property. The jury below determined that the
length of the seizure was not unreasonable. The plaintiffs,
however, do not appeal the jury's verdict. Instead, they claim
that the seizure was improper as a matter of law, and that the
9
Several days before we heard oral argument, Investigator Wall
"suggested" to the court that this portion of the plaintiffs'
appeal was moot because Enlow had died while the appeal was
pending. As a general rule, a claim for monetary damages must be
resolved on the merits. Henschen v. City of Houston, 959 F.2d 584,
587-88 (5th Cir. 1992); 13A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3533 (1984). Though the plaintiffs' complaints are
somewhat inartfully drafted, we will construe them as claims for
monetary damages.
10
district court should have granted their directed verdict motion
for that reason.
When reviewing a denial of a motion for a directed verdict, we
examine the record in a light most favorable to the party opposing
the motion. We reverse the district court only if we find there
was no conflict in substantial evidence such that reasonable minds
could differ. Horton v. Buhrke, A Division of Klein Tools, Inc.,
926 F.2d 456, 459 (5th Cir. 1991). We find that the district
court's ruling in this case was proper. The officers at the time
of the seizure were lawfully within the building and seized the
entire property in order to determine which items would be used as
evidence in the subsequent prosecution.
III.
For the foregoing reasons, the district court is AFFIRMED.
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