     Case: 13-60126      Document: 00512526355         Page: 1    Date Filed: 02/07/2014




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

                                                                                FILED
                                    No. 13-60126                          February 7, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JOHNNY DELANEY,

                                                 Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; WAYNE RUSTY
MILEY; MICHAEL BERTHAY; FORMER COMMISSIONER STEPHEN B.
SIMPSON; CREEDE MANSELL; WALTER DAVIS; BILLY MCCLURG;
FICTITIOUS DEFENDANTS X, Y AND Z,

                                                 Defendant-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-229


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       It is essential to the pending appeal that Johnny Delaney, a trooper with
the Mississippi Highway Safety Patrol, filed a lawsuit against the Mississippi
Department of Public Safety (“MDPS”), then-Commissioner Stephen B.
Simpson, Wayne Rusty Miley, and Michael Berthay, asserting claims for race


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60126

and age discrimination and retaliation, based on allegations he was passed
over for promotions on account of his race and/or age and was subjected to a
hostile work environment after complaining of discrimination both internally
and to the Equal Employment Opportunity Commission. See Delaney v. Miss.
Dep’t of Pub. Safety, Civil Action No. 3:08CV369HTW-LRA. That action was
dismissed in July 2011, pursuant to Federal Rule of Civil Procedure 4(m) for
failure to timely serve process and alternatively pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief could be granted.
      In the present case, Delaney alleges that in September 2008, MDPS and
Walter Davis, Chief Investigator for Mississippi Bureau of Investigation
(“MBI”), along with another MBI agent, interviewed an individual named
Jessie Jordan, who claimed that Delaney “had engaged in some wrongdoing as
to a speeding ticket that Delaney had given him.”         Delaney denied any
wrongdoing and asserts that he cooperated in the extortion investigation. He
alleges that despite this cooperation, and even though they knew there was no
probable cause to believe he had committed extortion, agents of MDPS,
including the MBI agents involved in the investigation, presented “distorted
evidence” to the county grand jury, which in December 2008, returned an
indictment against Delaney for one count of extortion pursuant to Mississippi
Code Annotated § 97-11-33. The indictment alleged that Delaney, acting under
color of office, promised Jordan that he would dismiss Jordan’s speeding ticket
in exchange for cash.
      Delaney was suspended without pay by former Commissioner Simpson
the next day. On December 18, 2008, an administrative hearing was held in
reference to Delaney’s suspension. Although Delaney appeared at the hearing
and asserted his innocence of the charge against him, the suspension without
pay was upheld. Later that day, Delaney was arrested on a capias warrant.



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                                  No. 13-60126

He posted bond and was released the following day, and on December 22, 2008,
Delaney waived formal arraignment and entered a plea of not guilty.
      In September 2009, Delaney moved to dismiss the indictment, arguing
that the State had failed to afford him a probable cause hearing prior to his
indictment and arrest, which he contended was mandated by Mississippi Code
Annotated § 99-3-28. The County Circuit Court Judge granted the motion to
dismiss, finding “that the probable cause hearing mandated by Section 99-3-
28 could not be bypassed by means of an indictment . . . [and] that the proper
remedy was dismissal with prejudice,” since Delaney “would be subjected to
double jeopardy” if he were to be indicted again. Following the dismissal of the
indictment, Delaney was reinstated with pay.
      The State appealed the trial court’s ruling and in January 2011, the
Mississippi Supreme Court reversed the dismissal and reinstated the
indictment, holding that Delaney was not entitled to a probable cause hearing
under the statute because “[o]nce [he] had been indicted, the need for a hearing
pursuant to Mississippi Code Section 99-3-28 was obviated.” State v. Delaney,
52 So. 3d 348, 351 (Miss. 2011). Delaney was again suspended without pay
based on the Supreme Court’s decision to reinstate the indictment. In March
2011, the indictment was dismissed with prejudice, for reasons that were not
disclosed to the parties or the district court in the instant case.
      In March 2012, Delaney filed suit against MDPS, Miley, Berthay,
Former Commissioner Simpson, Creede Mansell, Davis, Billy McClurg, and
Fictitious Defendants X, Y, and Z, asserting claims under federal and state law
relating to criminal charges brought against him in 2008 for extortion. In this
complaint, Delaney alleged claims pursuant to 42 U.S.C. § 1983 for the
following alleged violations of his constitutional and federal rights: (1) Fourth
Amendment seizure; (2) First Amendment retaliation; (3) Fifth and



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                                  No. 13-60126

Fourteenth    Amendment        substantive   and    procedural     due    process;
(4) discrimination and retaliation under 42 U.S.C. § 1981.          Additionally,
Delaney alleged civil conspiracy claims under 42 U.S.C. §§ 1983, 1985, and
1986. Further, Delaney purported to set forth state law claims for false arrest,
malicious prosecution, abuse of process, civil conspiracy and intentional
infliction of emotional distress.    Defendants sought dismissal of all these
claims.
      Berthay and Davis could not be served with process and were dismissed
as party defendants in September 2012. As to the other defendants, the district
court dismissed all of the claims of Delaney with prejudice. The district court
held, inter alia, that the complaint did not state in sufficient detail the
malicious prosecution claim of Delaney against the individual defendants; that
MDPS had Eleventh Amendment immunity from money damages on the
claims of Delaney; that the claims brought by Delaney for abuse of process and
intentional infliction of emotional distress were all time-barred by the statute
of limitations; that the state law claims were barred by the MTCA. Further,
the court held that Delaney did not present in the complaint sufficient factual
matter as to the claims under the federal statutes, including 42 U.S.C. § 1981
for racial discrimination and retaliation for his 2008 action that was pending
at all material times.
      Delaney appeals the district court’s dismissal of his claims. Having
reviewed pertinent parts of the record and the parties’ extensive briefs, we
conclude that the district court committed no reversible error, and we AFFIRM
essentially for the reasons stated by the district court.
                                                                     AFFIRMED.




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