Betty Hearn v. Hinds Cty Board of Supr ( 2014 )


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  •      Case: 13-60345   Document: 00512689868    Page: 1   Date Filed: 07/08/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 13-60345                     United States Court of Appeals
    Summary Calendar                            Fifth Circuit
    FILED
    July 8, 2014
    Cons w/13-60449                     Lyle W. Cayce
    Clerk
    BETTY SMITH HEARN,
    Plaintiff–Appellant
    v.
    BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI;
    DEPARTMENT OF PUBLIC WORKS OF HINDS COUNTY, MISSISSIPPI;
    CARL FRELIX, in his individual capacity and official capacity as
    Director/Road Manager of the department of Public Works of Hinds County,
    Mississippi; DOUGLAS ANDERSON, in his individual capacity and official
    capacity as a member of the Board of Supervisors of Hinds County, Mississippi;
    PEGGY HOBSON CALHOUN, in her individual capacity and official capacity
    as a member of the Board of Supervisors of Hinds County, Mississippi; PHIL
    FISHER, in his individual capacity and official capacity as a member of the
    Board of Supervisors of Hinds County, Mississippi; ROBERT GRAHAM, in his
    individual capacity and official capacity as a member of the Board of
    Supervisors of Hinds County, Mississippi; GEORGE SMITH, in his individual
    capacity and official capacity as a member of the Board of Supervisors of Hinds
    County, Mississippi,
    Defendants–Appellees
    Cons w/13-60508
    BETTY SMITH HEARN,
    Plaintiff–Appellant
    v.
    BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI;
    DEPARTMENT OF PUBLIC WORKS OF HINDS COUNTY, MISSISSIPPI;
    Case: 13-60345      Document: 00512689868         Page: 2    Date Filed: 07/08/2014
    No. 13-60345
    c/w 13-60449; 13-60508
    ZURICH INSURANCE NORTH AMERICA; CRYSTAL MARTIN; DOUGLAS
    ANDERSON; GEORGE SMITH; KENNETH STOKES; PEGGY HOBSON
    CALHOUN; PHIL FISHER; ROBERT GRAHAM; CARL FRELIX; JOHN
    DOES; JOHN/JANE DOE LAWYERS; AMERICAN GUARANTEE &
    LIABILITY INSURANCE COMPANY,
    Defendants–Appellees
    Appeals from the United States District Court
    for the Southern District of Mississippi
    USDC No. 3:11-CV-662
    Before REAVLEY, JONES, and PRADO, Circuit Judges.
    PER CURIAM:*
    The underlying land dispute in this appeal is whether Smith Drive is a
    county road or a private driveway. Smith Drive is a short road that abuts
    Plaintiff–Appellant Betty Smith Hearn’s (“Hearn”) apartment building, in
    Hinds County, Mississippi. Proceeding pro se, Hearn sued various Hinds
    County officials and departments (collectively “Appellees”) raising an
    assortment of tort and property claims, under Mississippi law, in essence
    asserting that she is the owner of the corner of Smith Drive under dispute. In
    dismissing Hearn’s complaint, the district court noted that this land dispute
    between diverse citizens from different states “should have been a simple
    matter,” but “it turned into a mess” because “the parties have created a
    complicated docket with numerous supplemental submissions and redundant
    filings that often address issues found in unrelated motions.” This “mess” is
    no longer confined to the district court; it has spilled over into a litany of
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    motions before this Court on appeal. We have reviewed the record in this case.
    We affirm the district court and deny all pending motions.
    I.   BACKGROUND
    Hearn owns an apartment building in Raymond, Mississippi within
    Hinds County. 1 Hearn inherited the apartment building from her parents
    Bobbie and Hubert Smith, Sr. in 2000 (the “Smiths”).                   Hearn’s parents
    acquired the property in 1965. The apartment building is named after the
    Smiths and is known as the “Smith Apartments.”
    The entrance to Smith Apartments is a driveway that extends from the
    nearby thoroughfare, Port Gibson Street, and the driveway dead-ends into the
    Smith Apartments’ parking lot. Initially, this driveway was covered with
    gravel. Later, to obtain a sewer permit from the County, the Smiths agreed to
    pave the driveway at their own expense. Hinds County installed a street sign
    at the corner of the now-paved driveway and Port Gibson Street with two street
    nameplates. One says “Port Gibson Street,” and the other says “Smith Drive.”
    The dispute in this case is whether Smith Drive is a county road or a
    private driveway. In 2003, a residential day care opened on the other side of
    Smith Drive across from Smith Apartments. In order to access the residential
    day care from the main thoroughfare, Port Gibson Street, a car must use Smith
    Drive. In 2004, Hearn started to renovate the Smith Apartments. As part of
    the construction project, Hearn installed a construction fence along the border
    of what she contends is the property line. Believing Smith Road to be her
    property, Hearn instructed the fence contractor to fence in part of Smith Road.
    1 The following factual background is drawn from Hearn’s first amended complaint.
    Because Hearn is proceeding pro se, we construe her pleadings liberally; however, she still
    “must abide by the Federal Rules of Appellate Procedure.” United States v. Wilkes, 
    20 F.3d 651
    , 653 (5th Cir. 1994).
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    Hearn’s neighbor, the owner of the residential day care, asked the Hinds
    County deputies to stop the construction of the fence. Hearn alleges that the
    Hinds County Sherriff’s Department threatened Hearn with arrest for
    attempting to block a “County road.” Hearn alleges she constructed the fence
    at a different location, but Hinds County personnel returned and removed the
    fence anyway.
    Additionally, around 2009, Hearn attempted to expand the Smith
    Apartments parking lot onto the disputed corner of Smith Drive, by painting
    spaces and installing parking stops. Hinds County deputies told the residents
    to move their cars, and the deputies removed the parking stops.
    Hearn sued in federal court asserting diversity jurisdiction because she
    resides in Florida and only occasionally visits Smith Apartments in
    Mississippi. The district court struggled to make sense of Hearn’s and the
    Appellees’ various filings. Ultimately, the court construed Hearn’s complaint
    to assert several tort claims and property claims against Hinds County’s Board
    of Supervisors and Department of Public Works and its officials under
    Mississippi law. 2 The court dismissed Hearn’s tort claims against the Hinds
    County officials, the Hinds County Board of Supervisors, and the Hinds County
    Public Works as barred by the Mississippi Tort Claims Act. The court also
    found, in the alternative, that the statute of limitations had expired on Hearn’s
    state law tort claims because she did not file suit within one year of the 2004
    fence incident and the 2009 parking lot incident.
    The district court construed Hearn’s first amended complaint liberally to
    contain a sufficiently stated state law property claim—although brought
    against the wrong party.        Accordingly, the district court dismissed these
    2  The court noted the complaint was “long on legal jargon but is otherwise vague,”
    leaving the court and the defendants “to guess at the true nature of her claims.”
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    claims, but granted Hearn leave to amend. The court also helpfully told Hearn
    to substitute the proper party (which it named)—Hinds County, Mississippi—
    for the current defendants. The court instructed Hearn “to file a renewed
    motion to amend within fourteen days that attaches a proposed second
    amended complaint naming the proper party and raising state-law property
    claims.”
    Hearn did not accept the court’s invitation to amend her complaint
    within the prescribed time period. Instead, after the time to amend had lapsed,
    Hearn filed a Federal Rule of Civil Procedure (“Rule”) 59(e) motion for
    reconsideration and a notice of appeal. The district denied the motion for
    reconsideration, but granted Hearn an additional 14 days leave to amend her
    complaint. Again, Hearn declined to amend her complaint and instead filed a
    Rule 60(b) motion for relief from judgment and another notice of appeal. The
    court granted Hearn another 14 days leave to amend, but this time, it warned
    “[f]ailure to do so within 14 days of entry of this Order will result in dismissal
    of the case without further notice.”
    After this third opportunity to amend and the court’s final warning,
    Hearn filed another motion for relief of the judgment and did not file an
    amended complaint within the prescribed time period.            Accordingly, the
    Appellees moved to dismiss the complaint with prejudice under Rule 41(b), and
    the district court dismissed the case with prejudice. Hearn timely appealed,
    on several occasions.
    II.   DISCUSSION
    On appeal, Hearn challenges the district court’s decision dismissing her
    complaint for failure to state a claim, with leave to amend, and its decision
    dismissing her case for failure to prosecute when she did not amend her
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    complaint after repeated warnings. 3 This Court has jurisdiction to review the
    district court’s final judgment. 28 U.S.C. § 1291.                 The district court had
    diversity jurisdiction under 28 U.S.C. § 1332.                     We apply Mississippi
    substantive law and federal procedural law to the state law claims. See Erie
    R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938).
    “We review a district court’s dismissal under Rule 12(b)(6) de novo,
    ‘accepting all well-pleaded facts as true and viewing those facts in the light
    most favorable to the plaintiffs.’” Doe ex rel. Magee v. Covington Cnty. Sch.
    Dist. ex rel. Keys, 
    675 F.3d 849
    , 854 (5th Cir. 2012) (en banc) (citation omitted).
    “To survive dismissal pursuant to Rule 12(b)(6), plaintiffs must plead ‘enough
    facts to state a claim to relief that is plausible on its face.’” 
    Id. (citing Bell
    Atl.
    Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)).
    We review a district court’s Rule 41(b) “dismissal with prejudice for
    failure to prosecute for abuse of discretion.” Berry v. CIGNA/RSI–CIGNA, 
    975 F.2d 1189
    , 1191 (5th Cir. 1992). Because a dismissal with prejudice “is an
    extreme sanction that deprives a litigant of the opportunity to pursue his
    claim,” we affirm a dismissal with prejudice “only if: (1) there is a clear record
    of delay or contumacious conduct by the plaintiff, and (2) lesser sanctions
    would not serve the best interests of justice.” Coleman v. Sweetin, 
    745 F.3d 756
    , 765 (5th Cir. 2014) (citation and internal quotation marks omitted)).
    3 We do not consider Hearn’s arguments that the district court’s ruling was erroneous
    under the Mississippi Constitution and the U.S. Constitution, because those arguments were
    not properly raised before the district court. See AG Acceptance Corp. v. Veigel, 
    564 F.3d 695
    ,
    700 (5th Cir. 2009) (“[A]rguments not raised before the district court are waived and will not
    be considered on appeal unless the party can demonstrate ‘extraordinary circumstances.’”).
    To the extent Hearn intends to assert other arguments on appeal, those arguments are
    deemed abandoned as inadequately briefed. See Cinel v. Connick, 
    15 F.3d 1338
    , 1345 (5th
    Cir. 1994) (“A party who inadequately briefs an issue is considered to have abandoned the
    claim.”); Price v. Digital Equip. Corp., 
    846 F.2d 1026
    , 1028 (5th Cir. 1988) (“Although we
    liberally construe the briefs of pro se appellants, we must also require that arguments must
    be briefed to be preserved.”).
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    Here, the district court did not err in dismissing Hearn’s tort claims as
    barred by either the statute of limitations or the Mississippi Tort Claims Act,
    and did not abuse its discretion in dismissing Hearn’s remaining claims with
    prejudice. The Mississippi Tort Claims Act is a limited waiver of the state’s
    sovereign immunity for certain torts committed by government entities and
    their employees. See Dancy v. E. Miss. State Hosp, 
    944 So. 2d 10
    , 15 (Miss.
    2001).   As such, the Tort Claims Act is the “exclusive remedy against a
    governmental entity and its employees.” Estate of Williams ex rel. Williams v.
    City of Jackson, 
    844 So. 2d 1161
    , 1164 (Miss. 2003). We construe this waiver
    “in favor of limiting liability.” Urban Developers LLC v. City of Jackson, Miss.,
    
    468 F.3d 281
    , 306 (5th Cir. 2006) (quoting In re Foust, 
    310 F.3d 849
    , 865 (5th
    Cir. 2002)).
    In light of Mississippi law, the district court properly concluded that the
    complaint failed to allege the County’s employees were acting outside the scope
    of their employment. See Miss. Code Ann. § 11-46-7(2), (7) (prohibiting liability
    for employees acting “within the course and scope” of employment and
    establishing a “rebuttable presumption” that a given act is within that scope).
    Further, the district court correctly concluded Hinds County is the proper
    party, not its related departments—the Board of Supervisors or the
    Department of Public Works. See Brown v. Thompson, 
    927 So. 2d 733
    , 738
    (Miss. 2006) (“The proper governmental entity to name as defendant in this
    suit is Bolivar County, not the Bolivar County Sheriff's Department”). Finally,
    the district court properly concluded Hearn’s tort claims were untimely under
    the Tort Claims Act’s one-year statute of limitations, as the events occurred in
    2004 and 2009, and Hearn did not file suit until 2011. See Miss. Code. Ann.
    § 11-46-11(3)(a) (“All actions brought under this chapter shall be commenced
    within one (1) year next after the date of the tortious, wrongful or otherwise
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    actionable conduct on which the liability phase of the action is based . . . .”).
    Therefore, the district court did not err in dismissing Hearn’s tort claims with
    prejudice and property claims with leave to amend.
    Further, the district court did not abuse its discretion in dismissing
    Hearn’s action—including her potentially meritorious property claims—with
    prejudice for failure to prosecute.     The record before the district court
    establishes a “clear record of delay or contumacious conduct by the plaintiff.”
    See 
    Coleman, 745 F.3d at 766
    . Hearn filed more than 50 separate motions,
    most of which were not truly motions, but instead rehashed or supplemented
    arguments that she previously made in prior motions. The district court noted
    that it had little opportunity to resolve the issues in the case “because the
    briefing never ends,” and ultimately, it had to issue a “cease-fire order.” Even
    during the “cease-fire,” Hearn did not comply with the district court and
    continued to file motions. Moreover, when the district court granted Hearn
    three opportunities to amend her complaint and specifically instructed her how
    to do so, she instead filed more motions and multiple notices of appeal. Finally,
    the district court specifically admonished Hearn, in its last order granting her
    leave to amend, that her failure to file an amended complaint would result in
    dismissal with prejudice. Accordingly, the district court did not abuse its
    discretion in concluding “lesser sanctions would not serve the best interests of
    justice.” See 
    Coleman, 745 F.3d at 766
    . Thus, the district court did not abuse
    its discretion by dismissing Hearn’s case with prejudice for failure to prosecute
    under Rule 41(b).
    III.   CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s dismissal.
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    IT IS ORDERED THAT appellant’s motion for concurrence with appeal
    by right, permission or statement of any objections to proceed with appeal 13-
    60345 in the United States Court of Appeals for the Fifth Circuit is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion to stay District
    Court proceedings is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion to amend reply
    brief, in appeals 13-60449 and 13-60508, is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion for court ordered
    withdrawal of appearance of Scherrie Lonnette Prince and the striking or
    setting aside of her influences is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion for sanctions
    against Scherrie Lonnette Prince for related added costs and delays, in appeals
    13-60449 and 13-60508, is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion, for court ordered
    investigation pursuant to Federal Rule of Appellate Procedure and 5th Circuit
    Rule 46 is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion for sanctions and
    added costs against Roy A. Smith, Jr. and Sandra Buchannan is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion for the handling
    of motions is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion to refer motion
    for court ordered withdrawal of appearance of Scherrie Lonnette Prince, the
    striking or setting aside of her influences and sanctions for related added costs
    and delays, to a panel of judges is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion to substitute
    Douglas Anderson, Phil Fisher, and George Smith with Darrel McQuirter,
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    Tony Greer and Kenneth Stokes and to change the capacity for Robert Graham
    and Phil Fisher to only their official person capacity is DENIED.
    IT IS FURTHER ORDERED THAT appellant’s motion for sanctions
    against Scherrie L. Prince, Sandra Buchannan and Roy A. Smith, Jr. is
    DENIED.
    10