                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2002-CP-01298-SCT

WILLIE B. SOUTHERN, JR.

v.

MISSISSIPPI STATE HOSPITAL, PAUL JACKSON,
M.D. AND MARTHA MURRAY, M.D.

DATE OF JUDGMENT:                                8/2/2002
TRIAL JUDGE:                                     HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                       RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          PRO SE
ATTORNEYS FOR APPELLEES:                         THOMAS T. DUNBAR
                                                 WILLIAM C. GRIFFIN
                                                 L. ABRAHAM ROWE, JR.
NATURE OF THE CASE:                              CIVIL - TORTS-OTHER THAN PERSONAL
                                                 INJURY & PROPERTY DAMAGE
DISPOSITION:                                     AFFIRMED - 09/11/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        BEFORE McRAE, P.J., EASLEY AND GRAVES, JJ.

        EASLEY, JUSTICE, FOR THE COURT:

                                  STATEMENT OF THE CASE

¶1.     Willie B. Southern, Jr. (Southern) was committed by order of the Chancery Court of Hinds County

on April 19, 1999, to the Mississippi State Hospital. The affidavit for commitment was brought by Gerald

Jones of the Jackson Police Department, as a friend of the court, seeking treatment for Southern. The

affidavit alleged that Southern was a possible danger to himself and others and that he had barricaded

himself and his two children in a hotel room for a week despite pleas from family and others to come out.

The special master's commitment order reflects that Southern was present at the hearing with his attorney.
¶2.     On June 9, 2002, Southern filed suit against the Mississippi State Hospital at Whitfield in Rankin

County and its staff physicians, Dr. Paul Jackson (Dr. Jackson) and Dr. Martha Murray (Dr. Murray),

collectively known as the Hospital. The Hospital filed a joint motion to dismiss pursuant to M.R.C.P. 12

(b) (6) for failure to state a valid claim upon which relief can be granted. In the motion to dismiss, the

Hospital took the position that they were exempt from the liability pursuant to Miss. Code Ann. § 11-46-9

(1) (a), Miss. Code Ann. § 11-46-9 (1) (d) and Miss. Code Ann. § 11-46-9 (1) (m). The Hospital in

its motion to dismiss further set forth the defense that Southern's complaint had not been properly filed

pursuant to the one-year statute of limitation under Miss. Code Ann. § 11-46-11.

¶3.     The trial court entered its order granting the Hospital's motion to dismiss. In its order of dismissal,

the trial court stated:

                 The [c]ourt finds that Mississippi Code § 11-46-9 (1)(a) exempts a governmental
        entity and its employees acting within the course and scope of their employment or duties
        and states "they shall not be liable for any claims arising out of a legislative or judicial
        action..." which in this case involves a judicial commitment of the [p]laintiff to the State
        Hospital. Both the alleged wrongful detention and alleged false diagnosis arise from the
        Judge's commitment of [p]laintiff. The [c]ourt finds that the [p]laintiff's claims against
        individual physicians, Paul Jackson, M.D. and Martha Murray, M.D., also should be
        dismissed as they are immune from suit under Mississippi law since they were employees
        acting within the scope of their employment with the [s]tate or a [s]tate [a]gency. § 11-46-
        9 (1) (a), (d) and/or (m). Mallery v. Taylor, 805 So.2d 613 (Miss. 2002).
                 The [c]ourt further finds that the [p]laintiff has failed to file his claims within the one
        year statute of limitations under § 11-46-11 of Mississippi Code Annotated and therefore
        is barred from maintaining this lawsuit and all of its claims against all [d]efendants. The
        [c]omplaint avers that [p]laintiff was of sound mind but falsely diagnosed with [b]ipolar
        [d]isorder ([c]omplaint [p]aragraphs 6, 13, 15, 5).
                 The [c]ourt finds that the [p]laintiff, Southern, has alleged that he was defamed by
        the diagnosis of [b]ipolar [d]isorder but has not pled that it has been published to anyone
        nor has he pled a special harm as a result of a publication of the alleged defamatory
        diagnosis. Defamation is an intentional tort that would also be subject to the one-year
        statute of limitations under common law as well as the Mississippi Tort Claims Act. (Miss.
        Code Ann. § 15-1-35 states - All actions for assault, assault and battery, maiming, false
        imprisonment... and all actions for slanderous words concerning the person or title, for
        failure to employ, and for libels shall be commenced within one (1) year next after the


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        cause of such action accrued and not after.). The [p]laintiff does not plead a publishing of
        the alleged defamation nor that he has suffered a special harm from the alleged defamation
        so the allegation of defamation is not properly pled and as a matter of law should be
        dismissed. King v. Miss. Power & Light, 142 So.2d 222, 225 (Miss. 1962) (It is not
        sufficient to allege negligence as a mere conclusion of the pleader, but facts must be
        pleaded showing actual negligence.); McLemore v. McLemore, 163 So.2d 500 (Miss.
        1935) (Ultimate essential facts upon which cause of action or affirmative defense thereto
        is based must be averred but not the items of evidence by which ultimate essential facts are
        to be proved.).
                 Under Mississippi [l]aw, the [p]laintiff's claims for intentional infliction of emotional
        distress also is subject to a one-year statute of limitations under the Mississippi Tort Claims
        Act as well as Miss. Code Ann. § 15-1-35.
                 Additionally, the [c]ourt finds that the [p]laintiff has not pled the necessary facts to
        support a claim of intentional infliction of emotional distress and that the [p]laintiff failed to
        plead that the [d]efendant doctors' individual actions caused him harm, but only that he
        sustained "...physical injuries, mental and emotional trauma..." as a result of the wrongful
        commitment. (King, supra, McLemore, supra) The [p]laintiff has not pled any
        intentional act that would form the basis of a claim of intentional infliction of emotional
        distress other than a false diagnosis of [b]ipolar I [d]isorder which would be based on his
        commitment for which the [d]efendants are immune under Miss. Code Ann. § 11-46-1 (a),
        (d) and/or (m). (Mallery, supra). The [c]ourt finds that this claims fails as a matter of
        law to be actionable under Mississippi law and should be dismissed.
                 WHEREFORE, PREMISES CONSIDERED, the [d]efendants' [m]otion for
        [d]ismissal is hereby granted.


                                               DISCUSSION

¶4.     On appeal, Southern presents a convoluted argument. It is impossible to fully follow Southern's

accusations raised on appeal. However, most of Southern's assignments of error appear to be various

alleged constitutional violations under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.

Southern further appears to attempt to reference 42 U.S.C. § 1983 in his brief citing "Right Act of 1871

(42 U.S.C.S. & [sic] 1883 & [sic] 1985 and 1986)." Southern raises these constitutional arguments for

the first time on appeal. As such, these constitutional allegations are not properly before this Court. The

role of an appellate court is not to be a fact finder but rather determine and apply the law to the facts




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determined by the trier of fact. In Bender v. North Meridian Mobile Home Park, 636 So.2d 385,

389 (Miss. 1994) (citing Patterson v. State, 594 So.2d 606, 609 (Miss. 1992)), this Court held that:

         The rule that questions not raised in the lower court will not be reviewed on appeal is
         particularly true where constitutional questions are involved.

¶5.      A trial judge cannot be put in error on a matter not presented to him. See Bender. See also

Mills v. Nichols, 467 So.2d 924, 931 (Miss. 1985). This Court has repeatedly held that issues not

raised at trial cannot be raised on appeal. See Parker v. Mississippi Game and Fish Commission,

555 So.2d 725, 730 (Miss. 1989).

¶6.      Southern further contends that the trial court erred in not allowing him "to proceed with its [his]

claim for make-whole [r]elief against [e]vil." The only issue on appeal necessary for this Court's

consideration is whether the trial court erred in dismissing Southern's complaint for failure to comply with

the statute of limitation.

¶7.      From Southern's complaint it is difficult to determine what relief exactly he sought from the trial

court. However, it appears that Southern attempted to make a claim of medical malpractice, defamation,

intentional infliction of emotional distress, mental anguish, loss of business and loss of enjoyment of life

resulting from the actions of the state hospital and Drs. Jackson and Murray in connection with his court

ordered commitment to Whitfield. Southern sought a judgment for $9,000,000 from each doctor.

¶8.      Southern was discharged from the Mississippi State Hospital on December 10, 1999, after being

committed by the Chancery Court of Hinds County on April 28, 1999. Southern filed his complaint in the

Circuit Court of Rankin County on June 19, 2002.

¶9.      The trial court dismissed Southern's complaint citing various reasons for the dismissal. The trial

court stated that Southern had "failed to file his claim within the one year statute of limitations under § 11-


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46-11 of Mississippi Code Annotated and therefore is barred from maintaining this lawsuit and all its claims

against all [d]efendants." We agree.

¶10.    In Pickens v. Donaldson, M.D., 742 So.2d 684, 687 (Miss. 1999) this Court held that:

        The MTCA provides:

                the exclusive civil remedy against a governmental entity or its employee for
                acts or omission which give rise to a suit.

See City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss. 1999) ("the MTCA provides the exclusive

remedy for a injured by a governmental entity's act or omissions).

¶11.    Miss. Code Ann. § 11-46-7 (1) provides:

        The remedy provided by this chapter against a governmental entity or its employee is
        exclusive of any other civil action or civil proceeding by reason of the same subject matter
        against the governmental entity or its employee or the estate of the employee for the act or
        omission which gave rise to the claim or suit; and any claim made or suit filed against a
        governmental entity or its employee to recover damages for any injury for which immunity
        has been waived under this chapter shall be brought only under the provisions of this
        chapter, notwithstanding the provisions of any other law to the contrary.

¶12.    Miss. Code Ann. § 11-46-11 provides the statute of limitations and requirements for filing suit

against a governmental entity or its employees. Miss. Code Ann. § 11-46-11 states:

        (1)     After all procedures within a governmental entity have been exhausted, any person
                having a claim for injury arising under the provisions of this chapter against a
                governmental entity or its employees shall proceed as he might in any action at law
                or in equity; provided, however, that ninety (90) days prior to maintaining an
                action thereon, such person shall file a notice of claim with the chief executive
                officer of the governmental entity. Service of notice of claim may also be had in
                the following manner: If the governmental entity is a county, then upon the
                chancery clerk of the county sued; if the governmental entity is a municipality, then
                upon the city clerk. If the governmental entity to be sued is a state entity as
                defined in Section 11-46-1 (j), service of notice of claim shall be had only upon
                that entity's chief executive officer. If the governmental entity is participating in a
                plan administered by the board pursuant to Section 11-46-7(3), such chief
                executive officer shall notify the board of any claims filed within five (5) days after
                the receipt thereof.

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       (2)     Every notice of claim required by subsection (1) of this section shall be in writing,
               and shall be delivered in person or by registered or certified United States mail.
               Every notice of claim shall contain a short and plain statement of the facts upon
               which the claim is based, including the circumstances which brought about the
               injury, the extent of the injury, the time and place the injury occurred, the names
               of all persons known to be involved, the amount of money damages sought and the
               residence of the person making the claim at the time of the injury and at the time
               of filing the notice.
       (3)     All actions brought under the provisions of this chapter shall be commenced
               within one (1) year next after the date of the tortious, wrongful or
               otherwise actionable conduct on which the liability phase of the action is based,
               and not after; provided, however, that the filing of a notice of claim as required by
               subsection (1) of this section shall serve to toll the statute of limitations for a period
               of ninety-five (95) days from the date the chief executive officer of the state agency
               receives the notice of claim, or for one hundred twenty (120) days from the date
               the chief executive officer or other statutorily designated official of a municipality,
               county or other political subdivision receives the notice of claim, during which time
               no action may be maintained by the claimant unless the claimant has received a
               notice of denial of claim. After the tolling period has expired, the claimant shall then
               have an additional ninety (90) days to file any action against the governmental
               entity served with proper claim notice. However, should the governmental entity
               deny any such claim, then the additional ninety (90) days during which the claimant
               may file an action shall begin to run upon the claimant's receipt of notice of denial
               of claim from the governmental entity. All notices of denial of claim shall be served
               by governmental entities upon claimants by certified mail, return receipt requested,
               only. For purposes of determining the running of limitations periods under this
               chapter, service of any notice of claim or notice of denial of claim shall be effective
               upon delivery by the methods statutorily designated in this chapter. The limitations
               period provided herein shall control and shall be exclusive in all actions subject to
               and brought under the provisions of this chapter, notwithstanding the nature of the
               claim, the label or other characterization the claimant may use to describe it, or the
               provisions of any other statute of limitations which would otherwise govern the
               type of claim or legal theory if it were not subject to or brought under the
               provisions of this chapter.

(emphasis added).

¶13.   The record does not reflect that Southern complied with the notice of claim requirements of Miss.

Code Ann. § 11-46-11 (3). Furthermore, Southern waited until approximately two and a half years to file




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suit, well in excess of the one year statute of limitations. We find that the trial court properly dismissed

Southern's complaint as being time barred.

                                             CONCLUSION

¶14.    For the foregoing reasons, this Court affirms the ruling of the Rankin County Circuit Court granting

summary judgment to the Hospital and dismisses Southern's complaint as being time barred by the

applicable statute of limitations.

¶15.    AFFIRMED.

    PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND
GRAVES, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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