     Case: 12-60735       Document: 00512446775         Page: 1     Date Filed: 11/19/2013




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

                                                                            FILED
                                                                        November 19, 2013

                                       No. 12-60735                        Lyle W. Cayce
                                                                                Clerk

TRACEY L. JOHNSON; DAVID JAMES, JR.,

               Plaintiffs - Appellants

v.

CITY OF SHELBY, MISSISSIPPI; HAROLD BILLINGS,

               Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-cv-00036


Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       The district court granted the defendants’ motion for summary judgment
and denied the plaintiffs’ subsequent motion to alter or amend the judgment.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60735

                         FACTS AND PROCEEDINGS
      Tracey L. Johnson and David James, Jr. were police officers for the City
of Shelby County, Mississippi (the “City”) in 2009. In September of that year,
the City’s board of aldermen, which has sole authority over the City’s
employment decisions, terminated Johnson and James, allegedly for violation
of City residents’ rights and police procedure. James requested and obtained a
grievance hearing from the City, after which the board upheld their
terminations.1
      Johnson and James filed suit in district court, claiming that they were
fired, not because of their alleged misconduct, but because they refused to turn
a blind eye to the criminal activities of one of the aldermen, Harold Billings.
They alleged that the City’s conduct violated their Fourteenth Amendment due
process rights and that Billings maliciously interfered with their employment
in violation of state law.
      Following discovery, the City and Billings filed a motion for summary
judgment. In it, the City argued that it was entitled to judgment in its favor
because Johnson and James did not invoke 42 U.S.C. § 1983 in their complaint,
but instead sought to maintain their action against the City directly under the
Fourteenth Amendment. Billings contended that the malicious interference
claim was barred by Johnson’s and Jones’s failure to comply with the notice
provision of the Mississippi Tort Claims Act (“MTCA”). The district court
granted the motion and entered final judgment on all claims. Johnson and
James moved to alter or amend the judgment under Federal Rule of Civil
Procedure 59(e), requesting leave to amend their complaint to invoke § 1983.
The district court denied their motion, and they appeal this denial and the
underlying grant of summary judgment for the City and Billings.

      1
         It is unclear from the record whether Johnson’s termination was at issue in the
hearing James requested.

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                                         No. 12-60735

                               STANDARD OF REVIEW
       We “review a district court’s grant of summary judgment de novo, applying
the same standard as did the district court.” Stults v. Conoco, Inc., 76 F.3d 651,
654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We view facts in
the light most favorable to the non-movant and draw all reasonable inferences
in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996). But we “may
affirm summary judgment on any legal ground raised below, even if it was not
the basis for the district court’s decision.” Performance Autoplex II Ltd. v.
Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).
       “Appellate review of the decision to grant or deny leave is generally
described as limited to determining whether the trial court abused its
discretion.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981)
(quotation marks and citation omitted).2
       “We review de novo the district court’s determination of state law.” Great
Am. Ins. Co. v. AFS/IBEX Fin. Servs., Inc., 612 F.3d 800, 804 (5th Cir. 2010).
                                       DISCUSSION
       1.      Fourteenth Amendment due process claim
       Johnson and James contend that the district court erred when it
determined that the City was entitled to summary judgment on their due
process claims because they failed to invoke § 1983 in their complaint. We
disagree.


       2
          Although we have “held that the Rule 15 standards apply when a party seeks to
amend a judgment that has been entered based on the pleadings” we have expressed doubt as
to “whether these liberal standards would apply to amendment of a judgment.” S.
Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). We need not resolve
this issue, here, however, as even reviewing the district court’s decision for abuse of discretion,
we conclude that the district court did not err.

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                                  No. 12-60735

      We have consistently upheld such dismissals, explaining that “the proper
vehicle for these allegations is § 1983.” Burns-Toole v. Byrne, 11 F.3d 1270, 1273
n.3 (5th Cir. 1994). A “complaint is fatally defective in that it fails to state a
claim upon which relief may be granted” when it does not invoke § 1983 for
claims of constitutional violations under color of state law. Hearth, Inc. v. Dep’t
of Pub. Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980) (dismissing such a
complaint and further noting that “[i]t adds nothing to appellant’s case to
assume that a suit under § 1983 would be subject to defenses unique to the
agency and its officials, for such defenses would also be available in the
hypothetical implied Fourteenth Amendment cause of action”).
      We have explained that this requirement that “claims against state actors
to be pursued through § 1983 is not a mere pleading formality.” Felton v. Polles,
315 F.3d 470, 482 (5th Cir. 2002), abrogated in part on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Certain
consequences flow from claims under § 1983, such as the unavailability of
respondeat superior liability, which bears on the qualified immunity analysis.
See id.
      In granting the City’s motion for summary judgment on Johnson’s and
James’s due process claim for failing to invoke § 1983, the district court followed
this precedent. It did not err.
      Johnson and James next contend that, even if they were required to invoke
§ 1983, the district court should have granted their Rule 59(e) motion seeking
leave to amend their complaint pursuant to Federal Rule of Civil Procedure 15
to allow them the opportunity to do so.
      In Freeman v. Cont’l Gin Co., this court held that there was no abuse of
discretion in refusing to allow an amendment to the pleadings after summary
judgment was granted. 381 F.2d 459, 470 (5th Cir. 1967). It reasoned that:



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                                  No. 12-60735

      A busy district court need not allow itself to be imposed upon by the
      presentation of theories seriatim. Liberality in amendment is
      important to assure a party a fair opportunity to present his claims
      and defenses, but equal attention should be given to the proposition
      that there must be an end finally to a particular litigation.
Id. at 469 (quotation marks and citation omitted); see also Union Planters Nat’l
Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir. 1982) (holding that the
district court did not abuse its discretion in denying a defendant’s leave to
amend his answer after summary judgment was entered). The Freeman court
also noted that the plaintiff in that case did not seek an amendment prior to the
district court’s grant of summary judgment, but waited until its claim was
rejected by the trial court. See 381 F.2d at 469; see also Ford Motor Credit Co.
v. Bright, 34 F.3d 322, 324-25 (5th Cir. 1994) (“Bright failed to plead a defense
pursuant to § 9.504(c) in his answer to Ford Credit’s complaint. He also failed
to seek leave to amend his answer to include the defense before the district court
entered summary judgment against him. . . . In this case, we find that the
district court did not abuse its discretion in denying Bright’s Rule 59(e)
motion.”); cf. Tex. Indigenous Council v. Simpkins, No. 12-50244, 2013 U.S. App.
LEXIS 10256, at *5–8 (5th Cir. May 21, 2013) (per curiam) (unpublished)
(holding that the district court should have allowed plaintiff to amend the
complaint to invoke § 1983 when plaintiff sought leave after the amendment
deadline but before summary judgment was entered).
      The court’s rationale in Freeman applies here. The district court – as well
as the City – need not be subjected to successive theories of the plaintiffs’ case.
Johnson and James did not seek to amend their complaint even after the City
filed its summary judgment motion. They waited until they lost on one theory
and then sought to upset the finality of the district court’s judgment by
introducing a new theory. The district court did not abuse its discretion by
rebuffing this attempt.


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                                  No. 12-60735

       2.    Malicious interference with contract claim
       Finally, Johnson and James appeal the district court’s grant of summary
judgment for the City and Billings on their malicious interference with contract
claim. They argue that the district court’s conclusion that this claim was barred
because they did not comply with the MTCA’s notice provisions was error.
       The MTCA waives the sovereign immunity “of the state and its political
subdivisions from claims for money damages arising out of the torts of such
governmental entities and the torts of their employees while acting within the
course and scope of their employment,” Miss. Code. Ann. § 11-46-5(1), subject
to the plaintiff “fil[ing] a notice of claim with the chief executive officer of the
governmental entity” at least ninety days before instituting the suit,
§ 11-46-11(1). This “notice requirement applies to suit brought against an
employee, acting in his official capacity.” McGehee v. DePoyster, 708 So. 2d 77,
79 (Miss. 1998). Moreover, “an action against a government employee in his
individual capacity may be subject to notice of claim requirements if the act
complained of occurred within the scope and course of his employment.” Id. at
80.    The MTCA, however, does not “requir[e] notice to . . . government
authorities of suit brought against [them] individually for acts outside of the
scope of [their] employment.” Id. at 81.
       Johnson and James argue in their opening brief that the MTCA—and its
notice requirement—does not apply to a suit against a government official for
malicious interference because an official who acts maliciously does not act
within the scope of his employment. They rely on Zumwalt v. Jones County
Board of Supervisors, which held the MTCA inapplicable to such claims:
“Tortious interference with business relations and contracts requires proof of
malice as an essential element. Therefore, the MTCA does not apply to these
torts. . . .” 19 So. 3d 672, 688 (Miss. 2009) (internal citation omitted). In
response, the City and Billings point to a more recent precedent from the

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                                       No. 12-60735

Supreme Court of Mississippi holding that “the MTCA covers . . . tortious
breaches of contract.”3 Whiting v. Univ. of S. Miss., 62 So. 3d 907, 916 (Miss.
2011). As appellees concede, these cases “clearly contradict one another on the
question of whether a plaintiff alleging malicious interference by a public
employee must satisfy the notice requirements of § 11-46-11 of the MTCA.”
Because we apply “the latest and most authoritative expression of state law
applicable to the facts of a case,” Santibanez v. Wier McMahon & Co., 105 F.3d
234, 239 (5th Cir. 1997), we follow Whiting here.4
       Johnson and James attempt to avoid Whiting’s holding by distinguishing
the case on the ground that it involved claims against a state university, while
they are suing Billings individually. But their entire argument turns on their
contention that malicious interference claims cannot be brought against a state
or its subdivisions for the acts of their employees, because the employee will
never be acting within the scope of his employment if he acts with malice.
Whiting, however, allowed a claim for malicious interference to be brought
against state entities, which required the state supreme court to conclude that



       3
         In Mississippi, tortious interference with contract and malicious interference with
contract are the same cause of action. See Cenac v. Murry, 609 So. 2d 1257, 1268-69 (Miss.
1992).
       4
          Although this is the first time this court has remarked on the conflict between these
cases, we note that federal courts have not consistently relied on Whiting. At least four
district courts in the circuit have relied on Zumwalt for the position that the MTCA does not
apply to tortious interference claims. See Bonney v. Leflore Cnty., 4:11-CV-107-SA-JMV, 2013
WL 1293812, at *6 (N.D. Miss. Mar. 26, 2013); Bolton v. Forrest Cnty., 2:11-CV-220-KS-MTP,
2012 WL 6600147, at *12 (S.D. Miss. Dec. 18, 2012); Pike Cnty. ex rel. Bd. of Supervisors v.
Indeck Magnolia, LLC, 3:11-CV-57-TSL-MTP, 2011 WL 3439935, at *3–4 (S.D. Miss. Aug. 5,
2011); Kermode v. Univ. of Miss. Med. Ctr., 3:09-CV-584-DPJ-FKB, 2011 WL 4351340, at *9
n.76 (S.D. Miss. Sept. 15, 2011), aff’d on other grounds, 496 F. App’x 483 (5th Cir. 2012). But
two other Mississippi district courts have come to the opposite conclusion, relying on Whiting.
See Salcido v. Univ. of S. Miss., 2:11-CV-173KS-MTP, 2012 WL 663016, at *9 (S.D. Miss. Feb.
28, 2012) (“Salcido’s alleged contract claims are in reality for tortious breach of contract and
tortious interference with contract which are governed by the Miss. Torts Claim Act.”); Gray
v. City of Gautier, 1:10-CV-00506-HSO, 2012 WL 3913053, at *8 (S.D. Miss. Sept. 7, 2012).

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                                No. 12-60735

the employees in that case did act within the scope of their employment. Thus,
Johnson’s and James’s contention that if Billings maliciously interfered with
their employment, he acted outside the scope of his employment is incorrect
under Mississippi precedent. They provided the district court no other reason
why Billings’s actions were outside the scope of his employment. The district
court, therefore, properly determined that the MTCA applied and that Johnson’s
and James’s claims were barred because they did not comply with its notice
requirements.
                              CONCLUSION
      We AFFIRM the district court’s grant of summary judgment for the
defendants and denial of plaintiffs’ motion to alter or amend the judgment.




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