Jimmy D. Giles v. Kenneth I. Stokes
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01075-COA
JIMMY D. GILES
APPELLANT
v.
KENNETH I. STOKES
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
1/17/2007
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
VICTOR ISRAEL FLEITAS
PIETER JOHN TEEUWISSEN
JAMES RICHARD DAVIS
CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
TRIAL COURT GRANTED STOKE’S MOTION
TO DISMISS.
AFFIRMED - 7/22/2008
BEFORE KING, C.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On March 6, 2001, Jimmy D. Giles appeared before the City Council for the City of Jackson.
Giles requested and was granted permission to speak. The subject of Giles’s speech was
Councilman Kenneth I. Stokes. Eventually a shouting match ensued, and a recess was called. Giles
was removed from City Hall.
¶2.
The March 6th encounter resulted in the filing of two separate affidavits with the Municipal
Court of the City of Jackson. In his affidavit, filed on March 8, 2001, Giles stated that Councilman
Stokes “disturbed the public peace or peace of others by the use of violent, loud or offensive conduct
or language, by preventing Jimmy Giles from speaking at a city council meeting by repeatedly
interrupting his speech.” In Councilman Stokes’s affidavit, filed on March 22, 2001, Councilman
Stokes charged Giles with breach of the peace and disruption of a public meeting.
¶3.
On April 3, 2001, Giles dismissed his affidavit. On April 4, 2001, Councilman Stokes’s
affidavit was transferred to the Hinds County Justice Court. On June 8, 2001, the justice court
dismissed the case.
¶4.
On May 20, 2002, Giles filed a pro se complaint in the Circuit Court of Hinds County against
Councilman Stokes. Giles’s complaint alleged claims against Councilman Stokes for malicious
prosecution, abuse of process, false arrest, intentional infliction of emotional distress, libel, and
slander. Councilman Stokes’s responsive pleading was filed on June 19, 2002, by the city
attorney’s office. The responsive pleading was an answer and a motion to dismiss. One defense
asserted in Councilman Stokes’s answer was that the action was barred by the Mississippi Tort
Claims Act. Giles filed his response to the motion to dismiss on June 26, 2002.
¶5.
Nothing further occurred until November 11, 2004, when Councilman Stokes filed an
amended motion to dismiss. In the amended motion, Councilman Stokes reasserted his previous
motion and also argued that the complaint should be dismissed for failure to prosecute. Giles
responded on November 15, 2004, and filed a motion for additional time to obtain counsel to make
a more thorough response. The circuit court granted Giles’s motion for additional time.
¶6.
On December 15, 2004, approximately two and a half years after the initial complaint, Giles
filed a motion to amend his complaint. During oral argument, Giles’s attorney admitted that his
client’s pro se complaint was fatally flawed under the Mississippi Tort Claims Act. As a result,
Giles asked for leave to amend the complaint and add a federal claim under 42 U.S.C. § 1983 (2000)
that alleged that Councilman Stokes had violated Giles’s constitutional right to free speech. The
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circuit court denied Giles’s motion to amend and dismissed the case.
ANALYSIS
¶7.
The only issue raised on appeal is whether the circuit court erred in denying Giles’s motion
to amend his complaint. Our standard of review is abuse of discretion. We will not reverse a trial
judge’s decision to deny a motion to amend under Mississippi Rule of Civil Procedure 15 unless the
trial judge abused his or her discretion. Simmons v. Thomas Mach. of Miss, Inc., 631 So. 2d 798,
800-01 (Miss. 1994).
¶8.
Giles argues that the circuit court abused its discretion by not allowing him to amend his
complaint because the rule requires that amendments be liberally allowed. See Frank v. Dore, 635
So. 2d 1369, 1375-76 (Miss. 1994). Councilman Stokes responds that the statute of limitations had
already run on Giles’s proposed claim under 42 U.S.C. § 1983. Thus, Councilman Stokes argues
that Giles’s claim was time-barred, and the circuit court properly denied Giles’s motion to amend
because his new claim did not relate back under Mississippi Rule of Civil Procedure 15(c).
¶9.
First, we must determine if Giles’s claim is time-barred. The Mississippi Supreme Court has
held that:
in § 1983 actions lower courts should apply a state's residual statute of limitation for
personal injury actions, rather than the statute of limitation for certain enumerated
intentional torts. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594
(1989). . . . In Mississippi, the applicable statute is Miss. Code Ann. § 15-1-49.
Bankston v. Pass Rd. Tire Ctr, Inc., 611 So. 2d 998, 1003-04 (Miss. 1992). Mississippi’s residual
statute of limitations for personal injury actions is three years. Miss. Code Ann. § 15-1-49 (Rev.
2003). Thus, under Mississippi law, Giles was required to file his complaint within three years of
the date his action accrued in order to be within the statute of limitations. The United States
Supreme Court has recently held that:
While we have never stated so expressly, the accrual date of a § 1983 cause of action
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is a question of federal law that is not resolved by reference to state law. . . . Aspects
of § 1983 which are not governed by reference to state law are governed by federal
rules conforming in general to common-law tort principles. Under those principles,
it is "the standard rule that [accrual occurs] when the plaintiff has 'a complete and
present cause of action.'"
Wallace v. Kato, 127 S. Ct. 1091, 1095 (2007) (citations omitted).
¶10.
In his proposed amended complaint, Giles accused Councilman Stokes of throwing him out
of a city council meeting and violating his right to free speech on March 6, 2001. Giles’s § 1983
action accrued on March 6, 2001. Giles filed his motion to amend three years and nine months after
this date on December 15, 2004. Therefore, we find that Giles’s cause of action is time-barred, and
we must determine if it relates back under Mississippi Rule of Civil Procedure 15(c).1
¶11.
We have previously dealt with a similar situation in Russell v. Ford Motor Company, 960
So. 2d 495 (Miss. Ct. App. 2006). While discussing whether or not a cause of action relates back,
this Court held that:
an amendment relates back to the time of the filing of the original pleading and
suspends the running of the statute of limitations against the amendment, so long as
the amendment does not create a new cause of action. The claims asserted in the
amended pleading and the original pleading must arise out of “the same nucleus of
common facts.” Moreover, “[t]he standard for determining whether amendments
qualify under Rule 15(c) is not simply an identity of transaction test; although not
expressly mentioned in the rule, the courts also inquire into whether the opposing
party has been put on notice regarding the claim or defense raised by the amended
pleading.”
Id. at 500-01 (¶17) (citations omitted).
¶12.
Giles’s proposed amendment does not satisfy the requirements listed in Russell. First,
Giles’s proposed amendment does not pass the “identity of transaction test.”
Giles’s original
complaint raised claims for malicious prosecution, abuse of process, false arrest, intentional
1
This rule states, “[w]henever the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original pleading.” M.R.C.P. 15(c).
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infliction of emotional distress, libel, and slander. Each of these claims arose from Giles’s arrest
after he was escorted from the city council meeting. Furthermore, none of these claims assert a
violation of Giles’s right to free speech. Giles proposed to add a claim under § 1983, which
involved a violation of his constitutional right to free speech. The claims asserted in Giles’s original
complaint bear no relation to the claims asserted in his amended complaint. We cannot say that the
causes of action in Giles’s two pleadings “arise out of ‘the same nucleus of common facts.’”
Russell, 960 So. 2d at 500 (¶17) (quoting Kiddy v. Lipscomb, 628 So. 2d 1355, 1357 (Miss. 1993)).
¶13.
Furthermore, we cannot say that Councilman Stokes had “been put on notice regarding the
claim . . . raised by the amended pleading.” Id. at 501 (¶17) (citation omitted). As a result, we hold
that Giles’s proposed amendment cannot relate back to his original complaint and is time-barred.
Thus, we find that the Hinds County Circuit Court did not abuse its discretion in denying Giles’s
motion to amend.
¶14.
We note that on appeal, Giles does not argue that the circuit court erred when it dismissed
the common-law claims found in his original complaint. Giles also does not list this dismissal as
error under his statement of issues. Accordingly, the review of such claims is not proper for this
appeal and is waived. Davis v. J.C. Penney Co., 881 So. 2d 969, 970 (¶6) (Miss. Ct. App. 2004)
(citations omitted). Therefore, we find that the circuit court did not err when it dismissed Giles’s
case. Finding no error, we affirm.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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