Oliver v. Noxubee Cty Tax Dept ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-60030
Summary Calendar
____________________
WILLIAM H OLIVER,
Plaintiff-Appellant,
v.
NOXUBEE COUNTY TAX DEPARTMENT, In The State of Mississippi;
EMMETT MICKENS, Tax Collector; MARY SHELTON, Chancery Clerk;
NOXUBEE COUNTY BOARD OF SUPERVISORS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(4:98-CV-75-LN)
_________________________________________________________________
November 1, 1999
Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant William H. Oliver, proceeding pro se,
appeals the district court’s grant of summary judgment in favor
of Defendants-Appellees Emmett Mickens, Noxubee County,
Mississippi Tax Collector; Mary Shelton, Noxubee County,
Mississippi Chancery Clerk; and the Noxubee County Board of
Supervisors. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
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this opinion should not be published and is not precedent except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.
Plaintiff-Appellant William H. Oliver (“Oliver”) owned two
contiguous pieces of property in Noxubee County, Mississippi.
One tract contained approximately 125 acres, the other tract
approximately 12 acres. In 1984 the Noxubee County Tax Collector
reappraised Oliver’s property, assessing the large tract
according to an agricultural use value of $125 per acre and the
small tract at a significantly higher value of $600 per acre.
Oliver did not object to these assessments until 1994. In 1994
Oliver asked the new county tax collector, Defendant-Appellee
Emmett Mickens (“Mickens”), to correct the assessments by taxing
both tracts at the agricultural rate. Between 1994 and 1997
Oliver repeated his request in two or three telephone
conversations with Mickens. In 1997 Oliver requested, both by
telephone and by letter, a refund for overpayment of taxes. In
response, Mickens issued a $58.90 refund for the 1993 tax year
and corrected the assessments for the 1994-1997 tax years,
assessing the two tracts at the agricultural rate. In the
interim, Oliver refused to pay the county property taxes accruing
since 1994, claiming he had overpaid his property taxes. In
April 1997 the property was sold to recover the unpaid taxes.
In 1998 Oliver filed suit against Defendants-Appellees1
1
Although Oliver’s original complaint names “Noxubee County
Tax Department et al.” as defendant in this case, subsequent
pleadings name Emmett Mickens, Noxubee County, Mississippi Tax
Collector; Mary Shelton, Noxubee County, Mississippi Chancery
Clerk; and the Noxubee County Board of Supervisors. The district
court’s memorandum opinion and order granting summary judgment
name Emmett Mickens, Noxubee County, Mississippi Tax Collector;
Mary Shelton, Noxubee County, Mississippi Chancery Clerk; and the
Noxubee County Board of Supervisors as defendants. We assume the
2
(“Appellees”) in an Ohio federal district court, claiming he had
been defrauded, slandered, and forced to pay excess taxes. The
court transferred this diversity case to the United States
District Court for the Northern District of Mississippi. The
Northern District found that proper venue lay in the Southern
District of Mississippi and transferred the case to the United
States District Court for the Southern District of Mississippi,
Eastern Division. The Eastern Division granted Appellees’ motion
for summary judgment, concluding that (1) the applicable statute
of limitations barred Oliver’s claim for a refund of erroneously
paid ad valorem taxes before 1993; and (2) Oliver’s noncompliance
with the notice requirement of the Mississippi Tort Claims Act
barred his tort claims against the tax authorities. Oliver
appeals the district court’s granting of summary judgment in
favor of Appellees.
II. STANDARDS OF REVIEW
We review a grant of summary judgment de novo. See Horton
v. City of Houston, 179 F.3d 188, 191 (5th Cir. 1999). Summary
judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). All fact
district court intended its grant of summary judgment to apply to
all defendants to the lawsuit.
3
questions must be viewed in the light most favorable to the
non-moving party, and questions of law are reviewed de novo. See
Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.
1995).
Oliver appeals pro se. We hold pro se briefs to “less
stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
Although we construe briefs of pro se litigants liberally, pro se
parties must brief the issues and arguments. See Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Price v. Digital
Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). This Court
has considered pro se appellant briefs despite technical
noncompliance with the rules when the brief “at least argued some
error on the part of the district court.” Grant, 59 F.3d at 524-
25; see, e.g., Price, 846 F.2d at 1028 (addressing issue even
though the “only reference appellant makes to the district
court’s dismissal of his lawsuit as time barred is to assert that
‘this action is not time barred’”); Abdul-Alim Amin v. Universal
Life Ins. Co., 706 F.2d 638, 640 n.1 (5th Cir. 1983) (considering
appellant’s brief because “liberally construed, [it] contains an
assertion of trial court error”). But see Grant, 59 F.3d at 525
(dismissing appellant’s appeal because “[a]side from the
implication raised by its existence, [appellant’s] brief does not
argue that the district court erred in any way”).
The only issues we can distill from Oliver’s brief are
whether the district court denied Oliver due process of law and
4
whether it erred in granting summary judgment in favor of
Appellees. Therefore, we will first review Oliver’s due process
claim, and then, finding no due process violation, review the
district court’s order granting summary judgment to Appellees.
III. DUE PROCESS
Oliver argues that by granting summary judgment in favor of
Appellees, the district court did not give the “plaintiff a
chance to present his case in a court of law” and “enter[ed] an[]
order in a case without giving the Olivers Due Process of the
Law.” “A summary judgment reached in accordance with Federal
Rule of Civil Procedure 56, however, satisfies the requirements
of due process.” Hill v. McDermott, Inc., 827 F.2d 1040, 1044
(5th Cir. 1987) (citing Celotex, 477 U.S. at 327). Summary
judgment is not a “disfavored procedural shortcut,” but part of a
scheme designed to “secure the just, speedy and inexpensive
determination of every action.” Celotex, 477 U.S. at 327. A
litigant is not deprived of due process when a court grants
summary judgment because the litigant has failed to demonstrate a
genuine issue of material fact. See Vaughn v. United States, 589
F. Supp. 1528, 1533 (W.D. La. 1984) (citing Knighten v.
Commissioner of Internal Revenue, 702 F.2d 59, 61 (5th Cir.
1983)). The district court’s use of the summary judgment
procedure did not constitute a denial of due process.
IV. SUMMARY JUDGMENT
A. Tax Refund Claim
The district court correctly concluded that Mississippi’s
5
general statute of limitations applies to a taxpayer’s claim for
a refund of erroneously paid ad valorem taxes. See MISS. CODE ANN.
§§ 27-73-1 to -13, 15-1-49(1) (1972). This statute provides a
three-year limitations period for claims accruing on or after
July 1, 1989, and six years for those accruing prior to July 1,
1989. Id. § 15-1-49(1); Miss. A.G. Op. 90-0681 (Gibson, 1990).
We agree that the applicable statute of limitations has expired
on Oliver’s claim for overpaid ad valorem taxes from 1984 through
1992 because he fails to offer any evidence suggesting that he
requested a refund before 1997.
Oliver does not dispute that the adjustments made for 1994
through 1997 represent the entire amount he was erroneously
assessed during those years. Nor does he dispute receiving a
full refund of overpaid taxes for the 1993 tax year. Because the
applicable statute of limitations bars Oliver’s claim for a
refund for taxes from 1984 through 1992, and Oliver does not
dispute the satisfaction of his claim from 1993 through 1997,
summary judgment was properly granted as to Oliver’s claim for a
refund of overpaid ad valorem taxes from 1984 through 1997.
B. Tort Claims
The district court also concluded that Oliver’s failure to
comply with the notice requirement of the Mississippi Tort Claims
Act (“MTCA”) precluded his tort claims. See MISS CODE ANN. §§ 11-
46-1 to -23. Although we agree with the district court’s grant
of summary judgment as to Oliver’s tort claims, we disagree with
the district court’s reliance on Oliver’s noncompliance with the
6
MTCA’s notice requirement. In this case, compliance—or
noncompliance—with the notice provision of the MTCA is
irrelevant. We rely instead on the scope of immunity provided to
government entities and employees as delineated in the MTCA.2
1. Sovereign Immunity
Under the doctrine of sovereign immunity, “the state is free
from any liabilities unless it carves an exception.” Grimes v.
Pearl River Valley Water Supply Dist., 930 F.2d 441, 443 (5th
Cir. 1991). When it enacted the MTCA, the Mississippi
legislature elected to waive sovereign immunity. See Barnes v.
Singing River Hosp. Sys., 733 So. 2d 199, 203 (Miss. 1999)
(quoting Vortice v. Fordice, 711 So. 2d 894, 896 (Miss. 1998)).
The legislature qualified this waiver, however, by including
substantive limitations and by specifying certain procedural
requirements with which a litigant must comply before filing an
action against the state or a state employee.3 See Barnes, 733
So. 2d at 203.
2
In disposing of the claims against the governmental
entities, we also dispose of the claims against Mickens and
Shelton acting in their official capacities. See Womble v.
Singing River Hosp., 618 So. 2d 1252, 1261 (Miss. 1993) (“[S]uing
public officials in their official capacities is tantamount to
suing the State or its affiliated entities themselves, and any
immunities protecting such State entities will likewise shield
the public officials affiliated with them when they are sued in
their officials capacities.”); MISS. CODE ANN. § 11-46-7(2) (Supp.
1999) (“An employee may be joined in an action against a
governmental entity in a representative capacity if the act or
omission complained of is one for which the governmental entity
may be liable . . . .”).
3
The notice provision of the MTCA is one of those procedural
requirements. See MISS. CODE ANN. § 11-46-11 (Supp. 1999).
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The legislature limited the substantive scope of its waiver
of sovereign immunity by waiving only the “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) (Supp.
1999) (emphasis added). Thus the MTCA waives the sovereign
immunity of a governmental entity only for acts done by the
entity’s employees within the course and scope of employment.
The waiver does not apply to torts committed by an employee
acting outside the course and scope of employment. The MTCA
specifies acts of a government employee that “shall not be
considered as acting within the course and scope of his
employment”; these acts include “fraud, malice, libel, slander,
defamation or any criminal offense other than traffic
violations.” Id. at § 11-46-5(2) (emphasis added). The MTCA
does not call for the waiver of a governmental entity’s sovereign
immunity when the entity’s employees engage in such conduct. See
id. (stating that “a governmental entity shall not be liable or
be considered to have waived immunity for any conduct of its
employee if the employee’s conduct constituted [one or more of
the enumerated torts]”).
The acts Oliver alleges—fraud and slander—are outside the
course and scope of employment. MISS. CODE ANN. §§ 11-46-5(2); 11-
46-7(2) (Supp. 1999). Consequently, the sovereign immunity of
the taxing authorities involved has not been waived under the
8
MTCA. Therefore, sovereign immunity bars Oliver’s tort claims
against the Noxubee County Tax Department, the Noxubee County
Board of Supervisors, Mickens, in his official capacity, and
Shelton, in her official capacity.
2. Limited Individual Immunity
The MTCA also grants limited immunity to government
employees for torts committed while acting within the scope and
course of employment. See id. § 11-46-7(2). Specifically, the
statute provides that “no employee shall be held personally
liable for acts or omissions occurring within the course and
scope of the employee’s duties.” Id. Thus, the MTCA provides
governmental employees with a “protective environment” of
immunity to escape liability for actions falling within the
course and scope of employment.4 Moore v. Carroll County, 960
F. Supp. 1084, 1091 (N.D. Miss. 1997). However, if a government
employee’s conduct falls outside the scope of employment, the
employee may be held personally liable for that conduct, and the
MTCA’s procedural requirements do not apply. See id.; Depoyster,
708 So. 2d at 80-81 (quoting Bienz v. Bloom, 674 N.E.2d 998, 1004
(Ind. Ct. App. 1996)) (stating that “notice is required only if
the act or omission causing the plaintiff’s loss is within the
scope of the defendant’s employment”).
4
A claim involving a tort committed by a government employee
while acting within the scope of employment triggers the
procedural requirements—including the notice requirement—of the
MTCA in a suit against the government entity. See McGehee v.
Depoyster, 708 So. 2d 77, 79 (Miss. 1998); MISS CODE ANN. § 11-46-
11(1) (Supp. 1999).
9
Under the limited immunity provisions of the MTCA, just as
with the sovereign immunity provisions, “an employee shall not be
considered as acting within the course and scope of his
employment and a governmental entity shall not be liable or be
considered to have waived immunity for any conduct of its
employee if the employee’s conduct constituted fraud, malice,
libel, slander, defamation, or any criminal offense.” MISS. CODE
ANN. § 11-46-7(2) (Supp. 1999) (emphasis added). Because the
MTCA’s grant of limited immunity to government employees does not
apply to acts outside the course and scope of employment, such as
those alleged here, the MTCA does not protect Mickens and Shelton
as individuals. Therefore, noncompliance with the MTCA notice
requirement does not bar these claims.5
3. No Genuine Issue of Material Fact
Although the MTCA does not shield Mickens and Shelton from
liability for Oliver’s tort claims, summary judgment was
nonetheless appropriately granted in favor of these two
individuals. Viewing all inferences drawn from the underlying
facts in the light most favorable to Oliver, Oliver still fails
to offer any evidence in response to Appellees’ motion for
summary judgment that suggests the existence of a genuine issue
of material fact. Once a movant who does not have the burden of
5
Appellees’ reliance on section 11-46-9(1)(i) of the
Mississippi Code concedes to the same attack. That section
states that “[a] governmental entity and its employees acting
within the course and scope of their employment or duties shall
not be liable for any claim . . . [a]rising out of the assessment
or collection of any tax or fee.” MISS CODE ANN. § 11-46-9(1)(i)
(Supp. 1999) (emphasis added).
10
proof at trial makes a properly supported motion, the burden
shifts to the nonmovant to show that a summary judgment motion
should not be granted. See Celotex, 477 U.S. at 321-25. A party
opposing a summary judgment motion “may not rest upon mere
allegations contained in the pleadings, but must set forth and
support by summary judgment evidence specific facts showing the
existence of a genuine issue for trial.” Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255-57 (1986)). Oliver’s
response to Appellees’ motion for summary judgment fails to
supply evidence of specific facts that would create a genuine
issue of material fact.
Instead, Oliver claims that he requested relevant discovery
that Appellees refused to supply. He also appears to claim that
such discovery would have provided him with enough evidence to
raise a genuine issue of material fact and thus survive a summary
judgment motion. Federal Rule of Civil Procedure 56(f) provides
limited protection to a litigant who “present[s] specific facts
explaining his inability to make a substantive response as
required by Rule 56(e) and . . . specifically demonstrat[es] ‘how
postponement of a ruling on the motion will enable him, by
discovery or other means, to rebut the movant's showing of the
absence of a genuine issue of fact.’" Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (quoting Securities
and Exch. Comm’n v. Spence & Green Chem. Co., 612 F.2d 896, 901
(5th Cir. 1980)). However, “[v]ague assertions that discovery
11
will produce needed, but unspecified, facts” do not protect a
nonmovant from summary judgment. Allstate Ins. Co., 901 F.2d at
1285. Oliver’s response to Appellees’ motion for summary
judgment contains only broad assertions that discovery will
provide needed facts. Such assertions do not satisfy the
requirements of Rule 56. See FED. R. CIV. P. 56(e). Therefore,
although the MTCA does not bar Oliver’s claims against Mickens
and Shelton individually, these claims do not survive summary
judgment because Oliver failed to produce any evidence that
raises a genuine issue of material fact with regard to those
claims.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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