The opinion
Case: 15-60229 Document: 00513261874 Page: 1 Date Filed: 11/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-60229 November 6, 2015
Summary Calendar Lyle W. Cayce
Clerk
FREDRICK NORWOOD; VIRGINIA MCLAUREN; DANIELLE WADE,
Plaintiffs - Appellants
v.
CITY OF MENDENHALL, MISSISSIPPI; DONALD BRUCE BARLOW;
CLAY HOLLOWELL,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CV-580
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiffs–Appellants Fredrick Norwood, Virginia McLauren, and
Danielle Wade brought several claims pursuant to 42 U.S.C. § 1983 against
the City of Mendenhall, Donald Bruce Barlow, and Clay Hollowell for alleged
constitutional violations originating from a 2008 traffic stop. On appeal,
Plaintiffs challenge the district court’s judgment dismissing their claims as
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60229
barred by the statute of limitations. For the following reasons, we AFFIRM
the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2008, Fredrick Norwood was arrested and charged with
a number of misdemeanors and felonies after a traffic stop by police officers of
the City of Mendenhall. 1 Norwood pleaded guilty to the misdemeanors and
was released on bond. Before Norwood was released, City of Mendenhall Chief
of Police Donald Bruce Barlow attempted to recruit Norwood as a confidential
informant, but Norwood refused. 2 Barlow then told Norwood that he would
“take care of [the felony charges and misdemeanor convictions]” if Norwood
paid $5,000 to a “drug fund” within one year. Norwood stayed out of
Mendenhall and did not make the $5,000 payment.
In December 2009, Clay Hollowell conducted a traffic stop of a vehicle
driven by Danielle Wade and in which Norwood was a passenger. Hollowell
asked for Wade’s and Norwood’s driver licenses, and upon recognizing
Norwood, told Norwood that “Barlow is looking for you. He told me if I seen
you, to arrest you, and you’re under arrest.” Norwood exited the vehicle and
left the scene. After Wade consented to a search of the vehicle, Hollowell
discovered half of a hydrocodone pill, and he arrested Wade for unlawful
possession of a controlled substance. Hollowell told Wade that if she called
Norwood and had him come to the police department, Wade would be released.
Wade refused. Hollowell never asked Wade for money relating to this charge,
and Norwood was not arrested in connection with this incident. 3
1 Norwood does not contest the probable cause for this arrest.
2 These facts are recounted in the light most favorable to Plaintiffs. Parm v. Shumate,
513 F.3d 135, 142 (5th Cir. 2007).
3 The ultimate resolution of Wade’s unlawful possession of a controlled substance
charge is unclear, but Wade testified that she never went before a judge or jury.
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On February 19, 2010, a hospital security guard conducted a check of
Norwood’s identification. The identification check showed that a “hold” on
Norwood had been placed by the City of Mendenhall. A Mendenhall police
officer thereafter transported Norwood to Simpson County jail. Several days
later, Norwood was transferred to the City of Mendenhall Police Department
to meet with Barlow. During that meeting, Barlow told Norwood that his “time
was up on the $5,000” and that if Norwood failed to make a payment to the
drug fund, Barlow would turn in the paperwork relating to the 2008 charges.
Norwood was able to collect a total of $3,700, $2,000 from Virginia McLauren
and $1,700 from Wade. 4 Barlow said that he would accept $3,700 in lieu of the
$5,000 payment but that the $3,700 would have to be paid in cash.
In the following days, Norwood’s aunt, Darlan Williams, met with
Barlow and Norwood in Barlow’s office. Williams gave Barlow the $2,000 from
McLauren. Barlow put the money into his billfold and told Norwood and
Williams that “I can make all these charges disappear.” Wade subsequently
met with Barlow outside of Norwood’s presence and gave Barlow the remaining
$1,700, which Barlow placed into his pocket. Barlow told Wade that
“[Norwood] would be released shortly.” No receipts were requested or
provided. Norwood was subsequently released from jail on February 25, 2010.
Norwood never inquired into how Barlow would take care of the charges nor
did Norwood ever investigate “what, if anything, had happened with any of the
charges that arose out of that 2008 arrest.”
The Federal Bureau of Investigation (FBI) began investigating Barlow
for a similar scheme of routinely stopping, arresting, and charging individuals
with various crimes and then extorting money or property from those
4 There is conflicting evidence in the record regarding the exact amount provided by
each plaintiff. For purposes of this opinion, we refer to the amounts as described by Norwood.
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individuals to dismiss the criminal charges. In August 2010, FBI agents
interviewed Wade and told her that the money did not go to the drug fund.
And on September 22, 2012, FBI agents told Norwood that they were
investigating whether the money had been converted to Barlow’s own use.
Barlow was ultimately indicted on February 5, 2013, and he pleaded guilty to
one count of conspiracy. The count to which Barlow pleaded guilty comprised
several events not involving any Plaintiffs here.
On September 16, 2013, Plaintiffs filed their original action against
Barlow, Hollowell, and the City of Mendenhall. The most recent operative
pleading, Plaintiffs’ Fourth Amended Complaint, asserts claims pursuant to
42 U.S.C. § 1983 for violations of the Fourth, Fifth, Ninth, and Fourteenth
Amendments. The City of Mendenhall moved for summary judgment on the
grounds that Plaintiffs’ claims were time barred under Mississippi’s statute of
limitations. Hollowell moved to dismiss, or in the alternative for summary
judgment, and Barlow filed a motion to dismiss, with both motions alleging
similar grounds as the City’s motion. On March 4, 2015, the district court
granted all Defendants’ motions. The district court found that “Plaintiffs’
§ 1983 claims accrued, and the statute of limitations began to run, in February
2010 at the latest,” more than three years before the claims were brought in
September 2013. The district court also found that Mississippi’s three-year
statute of limitations was not tolled by fraudulent concealment or equitable
estoppel. The district court therefore found that the claims were time barred
under Mississippi law, dismissing all of Plaintiffs’ claims with prejudice. The
district court entered final judgment the same day. Plaintiffs timely appealed.
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II. FRAUDULENT CONCEALMENT
On appeal, Plaintiffs contend that the district court erred in granting
Defendants’ motions after finding that Plaintiffs’ § 1983 claims were time
barred. In particular, Plaintiffs allege that the district court erred in finding
that the statute of limitations was not tolled by fraudulent concealment. 5
We review a grant of summary judgment de novo, applying the same
standard as the district court. 6 Rogers v. Bromac Title Servs., L.L.C., 755 F.3d
347, 350 (5th Cir. 2014). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
For § 1983 claims, we borrow the statute of limitations and tolling
principles from the forum state. Walker v. Epps, 550 F.3d 407, 415 (5th Cir.
2008). In Mississippi, a three-year statute of limitations applies. Edmonds v.
Oktibbeha Cty., 675 F.3d 911, 916 (5th Cir. 2012) (citing Miss. Code Ann. § 15-
1-49). 7 However, “fraudulent concealment of a cause of action tolls its statute
5 In a footnote, Plaintiffs allege in passing that the § 1983 claims did not accrue “until
Plaintiffs experienced the mental anguish and financial hardship upon learning that Barlow
used Plaintiffs’ money for his personal gain.” However, this issue is waived because Plaintiffs
failed to adequately brief the issue. See X Techs., Inc. v. Marvin Test Sys., Inc., 719 F.3d 406,
411 n.3 (5th Cir. 2013) (noting that an issue is waived when a plaintiff fails to include the
issue in its statement of issues, fails to supply the relevant standard of review, and fails to
mention the argument in its reply).
6 Since matters outside the pleadings were considered by the district court, the
motions to dismiss are also treated as motions for summary judgment. Fed. R. Civ. P. 12(d);
see also Washington v. Allstate Ins. Co., 901 F.2d 1281, 1283–84 (5th Cir. 1990).
7 The relevant provision provides:
All actions for which no other period of limitation is prescribed shall be
commenced within three (3) years next after the cause of such action accrued,
and not after.
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of limitations.” Robinson v. Cobb, 763 So. 2d 883, 887 (Miss. 2000) (quoting
Myers v. Guardian Life Ins. Co. of Am., Inc., 5 F. Supp. 2d 423, 431 (N.D. Miss.
1998). Under Mississippi’s fraudulent concealment statute:
If a person liable to any personal action shall fraudulently conceal
the cause of action from the knowledge of the person entitled
thereto, the cause of action shall be deemed to have first accrued
at, and not before, the time at which such fraud shall be, or with
reasonable diligence might have been, first known or discovered.
Miss. Code Ann. § 15-1-67. To demonstrate fraudulent concealment, Plaintiffs
must show “(1) some affirmative act or conduct was done and prevented
discovery of a claim, and (2) due diligence was performed on their part to
discover it.” Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So. 2d 78,
84 (Miss. 2003); accord Whitaker v. Limeco Corp., 32 So. 3d 429, 436 (Miss.
2010).
Plaintiffs have failed to demonstrate affirmative acts or conduct by the
Defendants. On appeal, Plaintiffs do not point to any evidence in the record
showing affirmative acts of concealment. Plaintiffs contend, rather, that they
do not have to establish affirmative acts of concealment because the underlying
wrong—Barlow’s scheme charging individuals with crimes and then offering
to “take care” of the charges for payment—was “self-concealing.” However, the
case relied upon by Plaintiffs, In re Catfish Antitrust Litigation, 826 F. Supp.
1019 (N.D. Miss. 1993), is inapposite. The district court there analyzed the
applicability of self-concealing wrongs based on Fifth Circuit precedent that
analyzed Texas’s fraudulent concealment doctrine. Id. at 1030–31. However,
we have previously rejected applying the self-concealing approach to
Mississippi’s fraudulent concealment statute, Liddell v. First Family Fin.
Servs., Inc., 146 F. App’x 748, 750–52 (5th Cir. 2005) (unpublished), because
Miss. Code Ann. § 15-1-49(1).
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“Mississippi law is unambiguous: Plaintiffs must prove a subsequent
affirmative act of fraudulent concealment to toll the limitations.” Ross v.
Citifinancial, Inc., 344 F.3d 458, 463–64 (5th Cir. 2003). Mississippi courts
have continued to require subsequent affirmative acts of concealment. See,
e.g., Bennett v. Hill-Boren, P.C., 52 So. 3d 364, 372 (Miss. 2011); Whitaker, 32
So. 3d at 437–38. Plaintiffs have therefore failed to show any evidence of
affirmative acts of concealment by Defendants.
Furthermore, Plaintiffs have failed to present any evidence of their due
diligence in discovering their claims. In particular, Plaintiffs must prove that
“despite [their] due diligence, [they were] unable to discover the claim.”
Andrus v. Ellis, 887 So. 2d 175, 181 (Miss. 2004); Robinson, 763 So. 2d. at 887.
Norwood never inquired into how Barlow would “take care” of the charges, nor
did Norwood investigate the status of his charges after the $3,700 was paid
and he was released from jail. And there is no evidence in the record of any
actions taken by Wade or McLauren to discover their claims. While Plaintiffs
are correct that both the concealment and due diligence prongs are questions
of fact normally left to a jury, Whitaker, 32 So. 3d at 436, Plaintiffs have failed
to present any evidence raising a genuine dispute as to either prong. See
Liddell, 146 F. App’x at 752 (upholding summary judgment when Plaintiffs
failed to “allege[] any subsequent acts of concealment”); Carter v. Citigroup
Inc., 938 So. 2d 809, 819–20 (Miss. 2006) (affirming summary judgment when
Plaintiffs failed to show any material dispute on either prong of fraudulent
concealment). The district court thus did not err in finding that the statute of
limitations was not tolled due to fraudulent concealment.
III. LIMITED DISCOVERY
Nor have Plaintiffs showed that the district court abused its discretion
in granting Defendants’ motions during limited discovery. Plaintiffs contend
that the district court erred because discovery was limited to the issue of
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Barlow’s qualified immunity claim, and the district court should have allowed
Plaintiffs to depose Barlow on information relevant to their fraudulent
concealment argument. “We review a district court’s discovery decisions for
abuse of discretion and will affirm such decisions unless they are arbitrary or
clearly unreasonable.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th
Cir. 2000). “When a party is not given a full and fair opportunity to discover
information essential to its opposition to summary judgment, the limitation on
discovery is reversible error.” Access Telecom, Inc., v. MCI Telecomm. Corp.,
197 F.3d 694, 720 (5th Cir. 1999). However, discovery “may be cut off when
the record shows that the requested discovery is not likely to produce the facts
needed by the plaintiff to withstand a motion for summary judgment.”
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
Plaintiffs have failed to show that the requested discovery would produce
the facts needed to withstand summary judgment. As discussed above,
Plaintiffs have failed to show “due diligence was performed on their part to
discover [the fraudulent concealment of the claim].” Stephens, 850 So. 2d at
84. While Plaintiffs argue that further discovery would help in determining
“whether a reasonable person similarly situated would have discovered
potential claims,” Whitaker, 32 So. 3d at 436, such discovery is unnecessary to
develop evidence of Plaintiffs’ own actions toward uncovering the fraudulent
concealment. See Woods v. Fed. Home Loan Bank Bd., 826 F.2d 1400, 1414
(5th Cir. 1987) (“If [material facts] known to plaintiffs had been omitted from
the record, discovery was not needed to develop them.”). Thus, the district
court did not abuse its discretion in granting Defendants’ motions after limited
discovery.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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