     Case: 16-60364      Document: 00513886980         Page: 1    Date Filed: 02/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 16-60364                                  FILED
                                  Summary Calendar                         February 23, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
LESLY GATHERIGHT,

              Plaintiff–Appellant,

v.

NORMAN CLARK; NAC FARMS, INCORPORATED, also known as Clark
Farms,

              Defendants–Appellees.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:12-CV-111


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       Lesly Gatheright appeals the district court’s grant of summary judgment
in favor of Norman Clark and NAC Farms, Inc. and corresponding dismissal of
Gatheright’s claims. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 16-60364
                                        I
      In 2007, Gatheright wrote and delivered two post-dated checks to Clark
for two separate purchases of sweet potatoes. When Clark attempted to cash
those checks, they were returned for insufficient funds.             Gatheright
subsequently filed for bankruptcy and included the debt to Clark on the proper
schedule of the bankruptcy petition. Clark attended the meeting of creditors.
During this time, Clark filed two “Bad Check Affidavits” on preprinted forms
with the Justice Court of Calhoun County, alleging that Gatheright “willfully
and unlawfully, and feloniously with intent to defraud” issued and delivered
the two checks to Clark. The bad check affidavits do not mention post-dating.
A warrant issued for Gatheright’s arrest in connection with the checks, and he
was later arrested in Chicago where he was held without bond for six weeks
until he was extradited to Mississippi, where he spent another five days in jail.
He was indicted on two counts of False Pretenses, one for each check. Both
counts were ultimately dismissed.
      Gatheright initiated this diversity suit against Clark alleging (1)
malicious prosecution; (2) false arrest and imprisonment; (3) abuse of process;
and (4) intentional infliction of emotional distress premised largely on his
argument that Mississippi law does not allow a false pretenses conviction to
rest on a post-dated check. The district court dismissed the false arrest and
imprisonment claim in a separate order not presently before this court, but
allowed Gatheright to proceed on his other three claims. Gatheright filed a
motion for partial summary judgment and Clark filed a motion for summary
judgment as to the remaining three claims. The district court granted Clark’s
motion and dismissed the claims. Gatheright appeals.




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                                    No. 16-60364
                                           II
      This court reviews a grant of summary judgment de novo. 1 Summary
judgment is appropriate when the evidence reveals no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter of
law. 2 The moving party bears the initial burden of presenting the basis for the
motion and pointing out which portions of the record or summary judgment
evidence show there is no genuine issue of material fact, and if that burden is
satisfied, then the non-moving party must go beyond the pleadings and
designate specific facts showing there is a genuine issue for trial. 3 At the
summary judgment stage, factual disputes are resolved in favor of the non-
moving party, 4 and the court may not make credibility determinations or weigh
the evidence. 5 However, a “party opposing summary judgment may not rest
on mere conclusory allegations or denials in [his] pleadings” 6 and this court
does not, “in the absence of any proof, assume that the nonmoving party could
or would prove the necessary facts.” 7          This court may “affirm a grant of
summary judgment on any grounds supported by the record and presented to
the [district] court.” 8
      Gatheright contends that because three of his claims survived Clark’s
motion to dismiss, the district court should have ruled in Gatheright’s favor at
summary judgment and that the district court inappropriately reached


      1   Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016).
      2   FED. R. CIV. P. 56(a).
        3 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
        4 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
        5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
        6 Smith, 827 F.3d at 417 (internal quotation marks omitted) (quoting Hightower v.

Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)).
        7 Little, 37 F.3d at 1075.
        8 Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (internal

quotation marks omitted) (quoting Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.
2008)).
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                                       No. 16-60364
different legal conclusions about the evidence presented at the summary
judgment stage. Gatheright conflates the legal standards for dismissal for
failure to state a claim and dismissal on summary judgment. At the motion to
dismiss stage, “it is the defendant’s conduct as alleged in the complaint that is
scrutinized for ‘objective legal reasonableness;’” on summary judgment, “the
plaintiff can no longer rest on the pleadings.” 9 Gatheright has largely failed to
identify evidence in his favor and “[i]t is not our function to scour the record in
search of evidence to defeat a motion for summary judgment; we rely on the
nonmoving party to identify with reasonable particularity the evidence upon
which he relies.” 10 Nevertheless, given our “traditional disposition of leniency
toward pro se litigants,” 11 we proceed to examine the district court’s grant of
summary judgment, viewing the facts presented in the light most favorable to
Gatheright.
                                             III
       Under Mississippi law, a malicious prosecution claim has six elements:
(1) the institution of a proceeding; (2) by, or at the insistence of the defendant;
(3) the termination of such proceeding in the plaintiff’s favor; (4) malice in
instituting the proceeding; (5) want of probable cause for the proceeding; and
(6) the suffering of the injury or damage as a result of the prosecution. 12
       The facts of this case support some of the elements. Clark may have
instituted a proceeding by filing the bad check affidavits. 13 It is undisputed
that both charges were subsequently dismissed in Gatheright’s favor and that



       9 Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
       10 Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 555 n.7 (5th Cir. 2016)
(internal quotation marks omitted) (quoting Bombard v. Fort Wayne Newspapers, Inc., 92
F.3d 560, 562 (7th Cir. 1996)).
       11 Davis v. Hernandez, 798 F.3d 290, 293 (5th Cir. 2015) (internal quotation marks

omitted) (quoting Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam)).
       12 McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001).
       13 See Royal Oil Co. v. Wells, 500 So. 2d 439, 443 (Miss. 1986).

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                                       No. 16-60364
Gatheright suffered injury by spending time in jail. However, malice and lack
of probable cause are not conceded, and Gatheright has failed to designate any
specific facts to suggest a question of material fact on either element.
       Probable cause requires the defendant have both “(1) an honest belief in
the guilt of the person accused, and (2) reasonable grounds for such belief.” 14
Under Mississippi law, an indictment is not necessarily conclusive evidence of
probable cause, 15 but it may be prima facie evidence. 16                  “Thus, when a
complaint for malicious prosecution shows on its face that a grand jury indicted
the plaintiff, the plaintiff must ‘plead facts showing fraud or other
improprieties in his prosecution to overcome this prima facie probable
cause.’” 17   Even without the indictment, the record indicates Clark had
probable cause, and Gatheright has not come forward with any evidence to the
contrary.
       There is nothing to suggest Clark’s belief in Gatheright’s guilt was
unreasonable. Clark held over $16,000 in bad checks from Gatheright, a sum
greater than what the Mississippi Supreme Court has previously found would
prompt a reasonable person to institute criminal proceedings. 18                    There is
likewise nothing in the record to generate a question of material fact as to the
honesty of Clark’s belief. Though Gatheright repeatedly refers to Henderson
v. State 19 for the proposition that a post-dated check cannot form the basis of



       14 Id.
       15 Cf., id. (concluding that a conviction is prima facie evidence of probable cause, but
the mere decision by the Justice Court to send the matter to grand jury, without a conviction,
was not).
       16 Springfield v. Members 1st Cmty. Fed. Credit Union, 106 So. 3d 826, 830 (Miss. Ct.

App. 2012).
       17 Id. (quoting 28 A.L.R.3d 748 (1969)).
       18 See Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1007 (Miss. 1992)

(concluding that “[a] reasonable person would have instituted proceedings” when confronted
“with almost $10,000.00 in dishonored checks”).
       19 534 So. 2d 554 (Miss. 1988).

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                                        No. 16-60364
a false pretenses charge in Mississippi, 20 the record is devoid of any suggestion
that either Clark or the clerk knew what charge the bad check affidavits might
support. The affidavits themselves made no reference to any specific crime or
portion of the Mississippi Code. The title of the crime first appears on the
grand jury indictment, suggesting the state, not Clark, decided what charge
would be levied. The clerk who directed Clark to fill out the pre-printed bad
check affidavits did not ask if the checks were post-dated, and had no opinion
as to whether a post-dated check could be prosecuted. In sum, the record shows
that Clark filled out a standard form and the grand jury indicted on both
counts.
       Finally, the record shows Clark filed the affidavits before he attended
the meeting of creditors, undermining any inference that he attempted to use
the criminal process to avoid the bankruptcy stay.                     The mere fact that
Gatheright had filed for bankruptcy does not preclude the institution of state
criminal proceedings against him, as criminal prosecutions are exempt from
the automatic stay. 21 Gatheright has failed to bring forth any evidence to show
Clark lacked either a reasonable or honest belief in Gatheright’s guilt at the
time he filed the affidavits.




       20 It is not entirely clear that this is always true. Henderson concerned an agreement
to wait to cash a check that was not post-dated as part of an option agreement. Id. at 555-
56. Furthermore, in dismissing one of the counts against Gatheright, the Mississippi circuit
court noted that a false pretenses claim premised on a post-dated check could succeed if the
jury inferred intent to defraud by providing a post-dated check, knowing the recipient
intended to immediately negotiate it.
       21 11 U.S.C. § 362(b)(1); see In re Fussell, 928 F.2d 712, 716 (5th Cir. 1991) (“[W]e have

squarely held that a bankrupt ‘has no federal right to prevent the [state] courts from
requiring him to repay debts that are the subject of his bankruptcy proceedings.’”) (quoting
McDonald v. Burrows, 731 F.2d 294, 299 (5th Cir. 1984)); see also In re Gruntz, 202 F.3d
1074, 1084-85 (9th Cir. 2000) (noting that the plain language of 11 U.S.C. § 362 makes no
exception for prosecutorial motive, and that even criminal prosecutions with the underlying
purpose of debt collection are exempt from the automatic stay).
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                                       No. 16-60364
       There is also no genuine question of material fact on the element of
malice. For the purposes of a malicious prosecution claim, malice “is used in
an artificial and legal sense and applied to a prosecution instituted primarily
for purpose[s] other than that of bringing an offender to justice.” 22 Under
Mississippi law, “a citizen has a privilege to start the criminal law into action
by complaints to the proper officials so long as one acts either in good faith, i.e.,
for a legitimate purpose, or with reasonable grounds to believe that the person
proceeded against may be guilty of the offense charged.” 23 This requires the
court to look to the “subjective state of mind” of the defendant. 24
       As discussed above, Clark’s belief in Gatheright’s guilt was not
unreasonable. Gatheright has made no showing that Clark attempted to use
the criminal process for any purpose other than bringing Gatheright to justice.
Gatheright has not come forward with any evidence that Clark acted for any
ulterior purpose, and while circumstantial evidence may prove malice, 25 bare
allegations that Clark acted maliciously, with no supporting evidence, are
insufficient. 26   The district court did not err in dismissing the malicious
prosecution claim.
                                             IV
       Abuse of process is “concerned with the improper use of process after it
has been issued.” 27 The elements of abuse of process are: “(1) an illegal and
improper perverted use of the process, which was neither warranted nor


       22 Royal Oil Co. v. Wells, 500 So. 2d 439, 444 (Miss. 1986).
       23 Downtown Grill, Inc. v. Connell, 721 So. 2d 1113, 1117 (Miss. 1998) (internal
quotation marks omitted) (quoting Benjamin v. Hooper Elec. Supply Co., 568 So. 2d 1182,
1187 (Miss. 1990)).
       24 Bankston, 611 So. 2d at 1006.
       25 Royal Oil Co., 500 So. 2d at 444.
       26 See Bankston, 611 So. 2d at 1006-07 (upholding a directed verdict in a case in which

the plaintiff did “not put on any proof, or even speculate[ ], as to the intent of any of the
defendants”).
       27 Moon v. Condere Corp., 690 So. 2d 1191, 1197 (Miss. 1997).

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                                      No. 16-60364
authorized by the process; (2) ulterior motive or purpose of a person in
exercising such illegal, perverted, or improper use of process; and (3) resulting
damage or injury.” 28 Where a claim is based solely on the filing of a suit, and
not on any perversion of the process once process issues, a claim for abuse of
process will fail. 29
       Though not relied on by the district court, the statute of limitations in
Mississippi for abuse of process is one year 30 from “the termination of the acts
which constitute the abuse complained of, and not from the completion of the
action which the process issued.” 31 Unlike malicious prosecution, abuse of
process does not require a favorable termination. Gatheright alleges the filing
of the bad check affidavit in April of 2008 as the complained of abuse. The
complaint was filed more than four years later. Because the claim was time-
barred, summary judgment in Clark’s favor was appropriate.
       Even if his claim were not time-barred, Gatheright has not alleged any
use of process, much less abuse, by Clark beyond the filing of the bad check
affidavits. Filing of the affidavits led to the instigation of the suit, not abuse
of the judicial process once the suit began. The evidence obtained during
discovery shows the process proceeded automatically once the affidavits were
filed. Clark’s involvement in the prosecution after providing the affidavits and
check copies to the authorities was limited to answering questions posed to him
by an investigating officer.        Gatheright is merely restating his malicious



       28 McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 975 (Miss. 2001).
       29 See Moon, 690 So. 2d at 1197; Heck v. Humphrey, 512 U.S. 477, 486 n.5 (1994) (“The
gravamen of [the abuse of process] tort is not the wrongfulness of the prosecution, but some
extortionate perversion of lawfully initiated process to illegitimate ends.”).
       30 MISS. CODE ANN. § 15-1-35; City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1218

(Miss. 1990).
       31 Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1207 (S.D. Miss 1969) (quoting

1 A.L.R.3d 953 (1965)); accord Childers v. Beaver Dam Plantation, Inc., 360 F. Supp. 331,
333-34 (N.D. Miss. 1973).
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                                        No. 16-60364
prosecution claim, and the district court’s grant of summary judgment in
Clark’s favor and dismissal of the abuse of process claim was not error.
                                               V
       Intentional infliction of emotional distress is likewise subject to a one-
year statute of limitations under Mississippi law. 32 The limitations period
begins to run as soon as the events giving rise to the distress occur. 33 In this
case, as in the abuse of process claim, the bad check affidavits were executed
more than four years before this lawsuit was filed. Therefore, Gatheright’s
claims are time-barred and dismissal appropriate.
       Even if this claim were not time-barred, “meeting the requisites of a
claim for intentional infliction of emotional distress is a tall order in
Mississippi.” 34 Mississippi requires the conduct of the defendant be “malicious,
intentional, willful, wanton, grossly careless, indifferent or reckless” 35 or “so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” 36 As discussed above, Clark’s filing the bad check
affidavits cannot be fairly characterized as “beyond all possible bounds of
decency.” 37 Therefore, summary judgment was appropriate.
       The district court was correct to grant summary judgment in favor of
Clark on all three claims. Gatheright has failed to meet his burden to go
beyond the pleadings to show any issue of genuine material fact for trial.


       32 Jones v. Fluor Daniel Servs. Corp., 32 So. 3d 417, 423 (Miss. 2010).
       33 CitiFinancial Mortg. Co. v. Washington, 967 So. 2d 16, 19 (Miss. 2007).
       34 Speed v. Scott, 787 So. 2d 626, 630 (Miss. 2001) (internal quotation marks omitted)

(quoting Jenkins v. City of Grenada, 813 F. Supp. 443, 446 (N.D. Miss. 1993)).
       35 Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995).
       36 Speed, 787 So. 2d at 630 (internal quotation marks omitted) (quoting Pegues v.

Emerson Elec. Co., 913 F. Supp. 976, 982 (N.D. Miss. 1996)).
       37 Id.; see, e.g., Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1007 (Miss. 1992)

(concluding that “[a] reasonable person would have instituted proceedings” when confronted
“with almost $10,000.00 in dishonored checks”).
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                                No. 16-60364
                            *        *         *
    For the reasons set forth herein, the judgment of the district court is
AFFIRMED.




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