Tebo v. Tebo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 25, 2008

No. 07-60659 Charles R. Fulbruge III

Clerk

LUCILLE TEBO

Plaintiff-Appellant

v.

CARY TEBO; KENNETH TEBO; CHIP DALE HOLBROOK, Medical Doctor;

NADINE BUSH, Medical Doctor

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Lucille Tebo appeals the district court’s grant of summary judgment. She

alleges that the Defendants – her two adult stepsons and two medical doctors

who evaluated her – engaged in a conspiracy to have her involuntarily

committed for mental treatment. The asserted object of the conspiracy was the

taking of her property after she was committed. We AFFIRM.

I. Background

One evening in May 2003, Cary and Kenneth Tebo (“Tebo brothers”) were

visiting the farm where their father, Thurman Tebo, lived. Also living there was

their stepmother, the Plaintiff Lucille Tebo. After an argument, Mrs. Tebo

threw a phone at Cary and threatened to kill him. After the brothers left, she

No. 07-60659

stayed up pacing and hitting the walls of the room where her husband was in

bed. The next morning the brothers called the county sheriff. The sheriff

contacted Joan Sonnier, a counselor employed by Region 8 Mental Health

Services, which is a state agency. Sonnier, along with the sheriff, went to the

Tebo residence so that Sonnier could evaluate Mrs. Tebo. The document Sonnier

prepared during the visit is in the form of an affidavit from the husband,

Thurman Tebo. Among other details, he stated that his wife “becomes angry,

hits walls, takes her husband’s medicines, [and] provokes other people.”

Once learning of these allegations, Sonnier advised the brothers to file an

affidavit at the county courthouse for involuntary civil commitment. In their

affidavit, the brothers stated that Mrs. Tebo’s problems were “throwing things,

pitching fits, not sleeping,” and that she was a “danger to self and others.” A

deputy clerk for the chancery court that had jurisdiction over the proceedings

helped the Tebo brothers prepare a patient information form. The form

identified a number of alleged problems, including that Mrs. Tebo abused

prescription drugs. That allegation is not in the brothers’ affidavit.

After the brothers’ affidavit was filed on May 15, 2003, Mrs. Tebo was

evaluated by Doctors Nadine Bush and Chip Dale Holbrook on May 19. Those

doctors are Defendants in this suit. Mrs. Tebo alleges that she felt pressured to

attend the evaluations. She worried that she would be committed to the state

hospital if she did not attend them. No physical compulsion is alleged. After

evaluating her, the doctors filed a report stating that Mrs. Tebo was in need of

inpatient psychiatric treatment. In a handwritten section of the report, the two

physicians said that she was “having problems with anger, throwing things at

husband, threatening to kill him and taking [his] meds.”

Either on the day of the evaluation or very soon thereafter, a special

master recommended that both Mrs. Tebo and her husband receive treatment.

Before the chancellor (trial judge) ruled on the recommendation, the brothers

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No. 07-60659

moved to dismiss the proceedings on June 2, apparently because Mr. and Mrs.

Tebo were getting a divorce. The chancellor ordered a dismissal on June 4.

Mrs. Tebo then filed this suit in federal district court. She alleged that

the Defendants conspired to violate her right to due process as guaranteed by

the Fourteenth Amendment to the Constitution. She sought relief under 42

U.S.C. § 1983. She also presented state-law tort claims for intentional infliction

of emotional distress, malicious prosecution, and negligence per se against all

four Defendants, and for medical malpractice against the two doctors.

The district court granted summary judgment on all claims against the

four Defendants who are appellees now. A settlement as to other parties was

reached and an order of dismissal entered. Mrs. Tebo’s notice of appeal

contested only the judgment in favor of the Tebo brothers and the two doctors.

II. Analysis

This court reviews a grant of summary judgment de novo. Summary

judgment is appropriate if there is no genuine issue of material fact, and if the

moving party is entitled to judgment as a matter of law. Morris v. Powell, 449

F.3d 682, 684 (5th Cir. 2006).

A. Claims Against Cary and Kenneth Tebo

1. Due Process Violation by the Tebo Brothers

Mrs. Tebo alleges that the commitment procedures were not followed and

each Defendant is liable. She concedes that the Tebo brothers are not state

actors. In order to hold them liable on her Section 1983 claim, they must have

engaged in a conspiracy with state actors to violate her constitutional rights.

Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). To make such a claim

actionable, the private and the public actors must have entered into an

agreement to commit an illegal act, and a plaintiff’s constitutional rights must

have been violated. Id. A plaintiff must “allege specific facts to show an

agreement.” Priester v. Lowndes County, 354 F.3d 414, 421 (5th Cir. 2004).

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No. 07-60659

The essence of the alleged conspiracy is that the Tebo brothers agreed with

Dr. Bush and social worker Joan Sonnier to have Mrs. Tebo “civilly committed

without following the civil commitment statutes.” According to Mrs. Tebo, the

Tebo brothers violated her statutory rights by filing an affidavit containing false

statements about her behavior, by falsely claiming they were entitled to pauper

status, and by causing an evaluation to be conducted prior to a court’s reviewing

the affidavit for sufficiency. See Miss. Code Ann. § 41-21-67. Defendants

Sonnier (now dismissed), Holbrook, and Bush are alleged to have misled Mrs.

Tebo about her status under the civil commitment laws, and to have been part

of the conspiracy to evaluate her without a court order.

As we have already summarized, Mrs. Tebo admitted engaging in some

erratic behavior. The brothers called the county sheriff. The sheriff contacted

Sonnier, and both then went to the Tebo home to conduct what Mrs. Tebo alleges

was an illegal “pre-screening evaluation.” Thereafter, the brothers followed

Sonnier’s advice by going to the county courthouse, where they filed the affidavit

and signed the pauper’s oath. There is no allegation that the brothers were

involved in the commitment process after submitting their affidavit. The

affidavit led to Mrs. Tebo’s evaluation by the doctors. If the evaluation

improperly occurred without court order, there is no evidence from which to infer

that the brothers were complicit.

Mrs. Tebo’s allegation that the Defendants were engaged in a conspiracy

to violate her civil rights is conclusory. She offers no evidence of an agreement

to commit an illegal act between the Tebo brothers and the state actors. Even

had Sonnier’s method of proceeding been in violation of state law, there is no

evidence that the Tebo brothers, presumably not experts in civil commitment

law, were aware of the illegality or that such lawlessness was a component of a

scheme to have Mrs. Tebo illegally committed.

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No. 07-60659

The same difficulty for the claim applies to the allegedly unlawful means

by which Doctors Bush and Holbrook – whom the Tebo brothers never met –

evaluated Mrs. Tebo. Similarly, Mrs. Tebo fails to show how the brothers’ own

allegedly improper conduct of signing a false pauper’s oath and exaggerating her

behavior in their affidavits shows that they were acting in agreement with state

actors to have Mrs. Tebo illegally committed. She does not allege that they told

Sonnier they were lying or of their supposedly illicit intentions, much less offer

evidence of an actual agreement to commit Mrs. Tebo illegally.

Mrs. Tebo’s allegations and evidence do not “allege specific facts to show”

that there is a genuine issue of material fact as to whether there was “an

agreement between the private and public defendants to commit an illegal act.”

Accordingly, we affirm the grant of summary judgment on this claim.

2. Intentional Infliction of Emotional Distress by the Tebo Brothers

The next claim we will consider is that for intentional infliction of

emotional distress. One description of this tort in Mississippi is this:

In general, damages for mental anguish or suffering are recoverable

when they are the natural or proximate result of an act committed

maliciously, intentionally, or with such gross carelessness or

recklessness as to show an utter indifference to the consequences

when they must have been in the actor’s mind.

Lyons v. Zale Jewelry Co., 150 So. 2d 154, 158 (Miss. 1963). The emotional

distress must have been intended or a reasonably foreseeable result of a

defendant’s act. Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736, 743 (Miss.

1999). The tort requires conduct that is “wanton and willful” and that “would

evoke outrage or revulsion.” Speed v. Scott, 787 So. 2d 626, 630 (Miss. 2001).

The conduct must “go beyond all possible bounds of decency, and . . . be regarded

as atrocious, and utterly intolerable in a civilized community.” White v. Walker,

950 F.2d 972, 978 (5th Cir. 1991) (quoting Lyons, 150 So. 2d at 158).

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No. 07-60659

In her amended complaint, Mrs. Tebo alleged that the defendants by

entering a conspiracy to “institute, instituting, and continuing an original

proceeding with malice and in intentionally inflicting emotional distress on the

plaintiff,” had committed this tort. That is by far her broadest statement of the

claim. Relevant in our review, though, are not her pleadings but her required

responses beyond her pleadings to the motion for summary judgment. We will

review those to see what remains in issue on this tort.

The first relevant document is Mrs. Tebo’s own request for partial

summary judgment. There she had a heading for “intentional infliction of

emotional distress,” but the text of the section that follows only concerns the tort

of malicious prosecution. Thus, she did not state anything in that filing

concerning this tort. In her pleading responding to the Tebo brothers’ summary

judgment motion, she used one brief paragraph to address this particular tort.

She alleged that Sonnier’s “conduct was wanton, willful, malicious, and

outrageous,” but she said nothing about the Tebo brothers. These filings do not

fulfill Mrs. Tebo’s obligation to respond to the motion for summary judgment as

to these Defendants on this claim. The suit against counselor Sonnier, the one

person mentioned in her response, has been settled. Nothing in Mrs. Tebo’s

summary judgment response satisfies the provision that someone opposing

judgment “must – by affidavits or as otherwise provided in this rule – set out

specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2).

Continuing the lack of focus on this tort, Mrs. Tebo has very little

discussion on appeal of intentional infliction of emotional distress. As to the

Tebo brothers, she alleged only that they “made a false affidavit to have Mrs.

Tebo committed in an effort to take her property.” As to the two doctors, she

alleged that they never meaningfully examined her, but “in an effort to have her

committed,” simply wrote a report finding a mental illness and defect.

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The fairest reading of the presentation of this tort below and here is that

it was an adjunct to the malicious prosecution claim. No factual response was

made below to these Defendants’ summary judgment evidence on intentional

infliction of emotional distress. The one appellate argument that she makes

about this tort concerns the allegedly false affidavit presented by the Tebo

brothers. That argument does not undermine the judgment on this claim, as the

discrepancies between the behavior Mrs. Tebo admitted and the behavior the

Tebo brothers alleged are only in some of the details. On this record, we need

not reach the question of whether the act of intentionally seeking to commit a

person based upon knowingly false allegations in order to take her property

could form the basis of an intentional infliction of emotional distress claim.

We affirm summary judgment as to intentional infliction of emotional

distress. The tort of malicious prosecution is where Mrs. Tebo has given her

factual and legal focus both below and here. We examine that next.

3. Malicious Prosecution by the Tebo Brothers

The next claim we examine is that for malicious prosecution, which is an

appropriate legal rubric for her claim that the commitment proceedings were

brought for improper reasons and through false affidavits. In Mississippi, this

tort has six elements: “(1) The institution of a criminal [or civil ] proceeding; (2)

by, or at the insistence of, the defendant; (3) the termination of such proceedings

in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable

cause in the institution of the proceedings; (6) the suffering of injury or damage

as a result of the prosecution.” Parker v. Miss. Game & Fish Comm’n, 555 So.

2d 725, 728 (Miss. 1989); see also Condere Corp. v. Moon, 880 So. 2d 1038, 1042

(Miss. 2004) (each element must be shown by a preponderance of evidence).

Though the parties do not discuss these elements systematically, there

appears to be no dispute as to the first three elements. Mrs. Tebo arguably

alleges injuries sufficient to raise an issue of material fact as to element six.

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No. 07-60659

Thus, the validity of summary judgment hinges on the existence of a question

of material fact as to elements four and five. Because of our conclusion that the

Tebo brothers are entitled to judgment as a matter of law due to the probable

cause element, we do not examine the question of malice.

The probable cause that must exist “requires a concurrence of an honest

belief in the guilt of the person accused and reasonable grounds for such belief.”

Nassar v. Concordia Rod & Gun Club, Inc., 682 So. 2d 1035, 1042 (Miss. 1996).

To understand what this means, we have found the source of the standard to be

Harvill v. Tabor, 128 So. 2d 863, 865 (Miss. 1961). Among other authorities, the

Harvill court relied on a case that summarized the Restatement definition of the

probable cause element in malicious prosecutions:

One who initiates criminal proceedings against another has

probable cause for so doing if he (a) reasonably believes that the

person accused has acted or failed to act in a particular manner, and

(b)(i) correctly believes that such acts or omissions constitute at

common law or under an existing statute the offense charged

against the accused, or (ii) mistakenly so believes in reliance on the

advice of counsel under the conditions stated in § 666 (effect of

advice of counsel).

RESTATEMENT OF TORTS § 662 (1938) (cited in State Life Ins. Co. of Indianapolis,

Ind. v. Hardy, 195 So. 708, 713 (Miss. 1940)). Also assisting our understanding

is an encyclopedia cited in Harvill that said an “honest and reasonable belief” in

guilt, not “the actual state of the case” that had earlier been brought, controlled

as to probable cause. 34 AM. JUR. Malicious Prosecution § 49 (1941).

This first articulation of a need for “concurrence” combined a reasonable

belief in what factually occurred with the requirement that such acts would be

an offense. A later reiteration is that if the person instigating the proceeding

“reasonably believed he [had] a good chance of establishing [his case] to the

satisfaction of the court or the jury,” there was probable cause. Condere, 690 So.

2d at 1195 (quoting W. PROSSER & W. KEETON, THE LAW OF TORTS § 120, at 893

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(5th ed. 1984)). Malice is a separate element of the tort. A defendant’s motives

and desires fit under the element of malice; what a person believed about the

validity of the proceedings would be analyzed under probable cause. This

understanding is confirmed by recent case law stating that probable cause is

largely objective, while malice is subjective:

In analyzing probable cause and malice, courts look to objective

facts as to the former and the subjective state of mind as to the

latter. Probable cause is determined from the facts apparent to the

observer when prosecution is initiated. When the facts are

undisputed, it is the function of the court to determine whether or

not probable cause existed. If the facts are in dispute, under our

decisions it is a jury question, based upon proper instructions, to

determine whether or not probable cause existed. Malice, on the

other hand, is a mental state. Its existence may be proved by

circumstantial evidence, or the jury may infer malice from the facts

of the case.

Nassar, 682 So. 2d at 1043 (quoting Owens v. Kroger Co., 430 So.2d 843, 846

(Miss. 1983)). The Owens language that probable cause is an objective matter

may be in some tension with the explanation that probable cause contains both

a subjective and an objective component. Id. at 1043. Still, Nassar’s quoting of

the Owens language at least means that the issue of malice needs to be kept

distinct from the probable cause analysis.

We next review the Mississippi case law to determine whether a plaintiff

must prove both that a defendant did not actually believe there was probable

cause and also that there objectively was none, or whether if either form of

probable cause existed, no liability arises. In one case, judgment for the

defendant was reversed despite his honest belief that the plaintiff had been the

criminal perpetrator, but the court found it not to be a reasonable belief.

Concordia, 682 So. 2d at 1045-46. Therefore, a plaintiff shows sufficient absence

of probable cause if either the belief or the actuality is missing. Summary

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No. 07-60659

judgment for a defendant is improper unless there is no dispute of material fact

that probable cause from both perspectives existed.

“Probable cause,” of course, must have a context. The context here is the

commencement of proceedings for Mrs. Tebo’s evaluation and possible

commitment to a mental institution. The Tebo brothers had probable cause if

they honestly believed and also had a reasonable basis for believing that facts

existed warranting the proceedings that later are challenged. Miss. Rd. Supply

Co. v. Zurich-American Ins. Co., 501 So. 2d 412, 414 (Miss. 1987).

This court has sought to elaborate on the meaning of “probable cause.”

Over two decades ago, we concluded without any precedent from that state yet

existing that Mississippi courts would require a lesser degree of certainty from

a citizen who initiates civil proceedings than is required of a prosecutor:

the initiator of private civil proceedings need not have the same

degree of certainty as to the relevant facts that is required of a

private prosecutor of criminal proceedings. In many cases, civil

proceedings, to be effective, must be begun before all the relevant

facts can be ascertained to a reasonable degree of certainty.

Armco, Inc. v. Southern Rock, Inc., 778 F. 2d 1134, 1137 (5th Cir. 1985) (quoting

RESTATEMENT (SECOND) OF TORTS § 67). No subsequent Mississippi state court

precedent has addressed the point, though our opinion was cited favorably by the

intermediate state court for another principle. Chapman v. Thornhill, 802 So.

2d 149, 153 (Miss. Ct. App. 2001). The view has also been endorsed by the

authors of the relevant chapter of a Mississippi legal encyclopedia. Justin L.

Matheny & Christopher R. Shaw, Personal Torts § 9, ENCYCLOPEDIA OF

MISSISSIPPI LAW (Jeffrey Jackson & Mary Miller eds., New Topic Serv. 2003).

Though the degree of certainty perhaps can be less in a civil proceeding

and still constitute probable cause, what it is that the Defendants must be

certain about still needs to be identified. The judicial proceedings that these

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Defendants initiated must begin with an affidavit that a person is “in need of

treatment” due to her behavior:

If any person shall be alleged to be in need of treatment, any

relative of the person, or any interested person, may make affidavit

of that fact . . . . The affidavit must contain factual descriptions of

the proposed patient’s recent behavior, including a description of the

behavior, where it occurred, and over what period of time it

occurred. Each factual allegation must be supported by

observations of witnesses named in the affidavit. Affidavits shall be

stated in behavioral terms and shall not contain judgmental or

conclusory statements.

Miss. Code Ann. § 41-21-65. The statute requires affiants to describe behavior

and not to state conclusions. Merging the statute with the case law, we

summarize that the Tebo brothers must have actually but also reasonably

believed that Mrs. Tebo was in need of treatment.

We now turn to the summary judgment evidence from both sides of the

dispute. As to whether the Tebo brothers had an honest belief, we have the

deposition testimony of Kenneth Tebo that he believed “something wasn’t right”

with his stepmother, and that his statements on the affidavit were truthful.

Cary Tebo was also deposed and stated that the incidents referred to in the

affidavit prepared for the commitment proceedings actually occurred, and that

on the day before the affidavit was signed, he thought something “was wrong

with her.” Cary Tebo would not say whether he believed Mrs. Tebo was

“mentally ill,” but only that this “wasn’t the person we used to know.”

Mrs. Tebo challenges their evidence in part by saying that the brothers

relied in their affidavit that began the proceedings on their father’s knowledge

rather than on their own knowledge. The brothers witnessed some of the events

described, but Mrs. Tebo’s staying awake and hitting the walls would have been

seen and heard only by their father. However, the Mississippi statute does not

require that the affidavit be based only on personal knowledge. It is only

necessary for “[e]ach factual allegation to be supported by observations of

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No. 07-60659

witnesses named in the affidavit.” Miss. Code Ann. § 41-21-65. The clerk’s form

given to the Tebo brothers to use does not have any prompt in the instructions

for noting names of other witnesses whose information may also be included in

the affidavit. The Defendants’ failure to record that some of the information

came from their father is irrelevant on the question of probable cause. Because

the state proceedings permit an affidavit to include information from others, the

failure to note that some of the details were from their father is simply a

technical error that does not undermine the honesty of their belief.

In response, Mrs. Tebo claimed that the Tebo brothers contacted the

authorities, communicated with Joan Sonnier, and signed the affidavit “in an

attempt to help their father take control of the land and property Mrs. Tebo had

purchased and put in her and Thurman’s name.” She alleged that earlier in the

month before the effort to have her committed, she had been hospitalized after

becoming unconscious. She informed those treating her that she believed that

her family had given her something to cause her to black out, and the reason

was that the family was trying to have her committed and then take control of

her property. She had no evidence other than her opinion about being drugged.

Her deposition referred to evidence from years earlier when she felt pressured

by her husband to deed some of the property to the brothers.

Whether such evidence of potentially bad motives creates an inference

relevant to probable cause is our question. An absence of probable cause can be

a reason to infer the existence of malice. Nassar, 682 So. 2d at 1046. The

inference of malice fills a void left by proof that there was no legitimate basis for

the proceedings. On the other hand, bad motives can exist simultaneously with

a belief in probable cause. An inference of no belief in probable cause, once it is

shown that probable cause legally existed, has no void to fill.

There was no evidence that either of the Tebo brothers believed that the

behavior they described did not constitute probable cause. Further, Sonnier’s

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No. 07-60659

evaluation of Mrs. Tebo before the brothers went to chancery court satisfied the

rule that if “a reasonable person would investigate further before instigating a

proceeding, the failure to do so is an absence of probable cause.” Benjamin v.

Hooper Elec. Supply Co., 568 So. 2d 1182, 1191 (Miss. 1990). If a party’s opinion

is the only evidence that there was no honest belief in probable cause, summary

judgment is appropriate. See McClinton v. Delta Pride Catfish, Inc., 792 So. 2d

968, 973 (Miss. 2001). We find nothing else in the present case.

With respect to the objective element of probable cause, Mrs. Tebo’s

admittedly erratic behavior eliminates a genuine issue of material fact as to

whether there were no “reasonable grounds for” the statements in the affidavit

and the belief that she was in need of treatment. Nassar, 682 So. 2d at 1042.

There was no dispute of material fact on the issue of probable cause.

Summary judgment on the malicious prosecution claim is affirmed.

4. Negligence per se

We now examine the claim that liability arises under the negligence per

se doctrine. There are four elements to a negligence claim – duty, breach of duty,

causation, and injury. Entrican v. Ming, 962 So. 2d 28, 32 (Miss. 2007). A duty

and its breach can at times be shown by proof that a statute has been violated.

Ill. Cent. Gulf R.R. Co. v. Milward, 902 So. 2d 575, 582 (Miss. 2005).

Mrs. Tebo bases her claim of negligence per se against the brothers on two

alleged statutory violations – their filing of a “pauper’s affidavit,” despite

ineligibility to do so, and a violation of the provision that the statements made

in an affidavit “be supported by observations of witnesses named in the

affidavit.” Miss. Code Ann. § 41-21-65.

As to the pauper’s affidavit, Mrs. Tebo argues that it must be filed by a

guardian. The brothers clearly were not her guardians. However, the statute

governing the preparation of mental commitment affidavits provides that “any

relative . . . or any interested person” may make and file an affidavit regarding

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a person “alleged to be in need of treatment.” Id. Another statute, governing

proceedings after an affidavit is filed, says that when “a pauper’s affidavit is filed

by a guardian for commitment of the ward of the guardian, the court shall

determine if the ward is a pauper,” and, if so, the county shall bear the costs of

treatment. Id. § 41-21-67(1). The statute instructs trial judges; whatever

implication arises from it regarding private conduct is insubstantial. Mrs. Tebo

cites no statute or case law forbidding non-guardians to file pauper’s affidavits.

Thus, there is no basis on which to find that this statute creates a duty that

could be the basis for a negligence per se claim.

Mrs. Tebo’s second allegation of a statutory violation is that the brothers

based the substance of the affidavit on “hearsay from their father,” rather than

on their own knowledge as is required by the statute. Neither the form given the

brothers at the chancery clerk’s office nor their handwritten additions to it refers

to the source of the information. A preprinted line says, “I make this affidavit

for the reason,” and then in handwriting appears “throwing things, pitching fits,

not sleeping, danger to self + others.” A statute requires this kind of affidavit

to give the names of witnesses who observed the events; not required is that the

person preparing the affidavit be the witness for everything. Id. § 41-21-65.

Mrs. Tebo concedes in her brief that the brothers were present during the

episode of erratic behavior to which she has admitted.

The duty that in essence is being claimed is that the brothers should have

known of the statute and made additions to the form to comply; having failed to

do so, they were negligent per se. We have been presented with no judicial

precedent from Mississippi or anywhere else that has applied this negligence

doctrine to a failure to comply with court procedural rules, such as for the form

of an affidavit to be used to commence a suit. Mistakes in court proceedings that

allegedly harm another party are not the basis for later negligence suits but can

be the basis for rulings in the suit itself. Intentional or reckless misconduct can

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support claims for malicious prosecution, abuse of process, or perhaps other

actions that provide for damages when there has been an illegitimate use of

judicial proceedings. Henry v. First Nat’l Bank of Clarksdale, 444 F.2d 1300,

1310-11 (5th Cir. 1971). There is no basis for a negligence action.

The grant of summary judgment on this claim is affirmed.

B. Claims Against Doctors Bush and Holbrook

Dr. Bush asserts three varieties of immunity and Dr. Holbrook two; they

are discussed when relevant to particular claims. Both sides agree that Dr.

Bush, a public hospital employee, is a state actor for purposes of Section 1983.

Thus, it is not necessary to show that she was engaged in a conspiracy with

others in order for her to commit a constitutional violation. Dr. Holbrook’s

status is less clear, but as the discussion will show, it is immaterial to the

outcome here.

1. Due Process Claim Against the Doctors

Mrs. Tebo’s basis for asserting a violation of her due process rights to

liberty is the so-called “stigma-plus” theory. While “infliction of a stigma on a

person’s reputation by a state official, without more, does not infringe upon a

protected liberty interest,” a plaintiff may assert a constitutional violation by

alleging a stigma “plus an infringement of some other interest.” Blackburn v.

City of Marshall, 42 F.3d 925, 936 (5th Cir. 1995). The necessary stigma

consists of “concrete, false factual assertions”; infringement occurs if the state

“sought to remove or significantly alter a life, liberty, or property interest

recognized and protected by state law” or the federal constitution as incorporated

against the states. Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995).

Mrs. Tebo must first show that statements by a state actor stigmatized her

in some way. While the Defendants, especially Dr. Holbrook, argue that actual

commitment to an institution is necessary for a stigma, the precedents they cite

simply recognize that actually being committed is a stigma and thus requires

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heightened due process. The “stigma” portion of the analysis is concerned with

speech from the government about an individual. See Garcia v. City of

Albuquerque, 232 F.3d 760, 772 (10th Cir. 2000) (a sufficient stigma is one

involving “serious mental illness”). We do not find any inherent bar to the

statements made in the doctors’ report being considered for stigma purposes.

However, Mrs. Tebo’s argument fails to grapple with another aspect of the

stigma requirement – the stigma must have been “published” by the

government. See Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006)

(an element of the “stigma-plus infringement test” is that “the charges were

made public”). Placing a charge in a publicly available file has been held to

satisfy the publication requirement, Cannon v. City of W. Palm Beach, 250 F.3d

1299, 1301 (11th Cir. 2001), although mere presence in a file not normally

available to the public is insufficient. Hughes v. City of Garland, 204 F.3d 223,

228 (5th Cir. 2000). Mrs. Tebo argues that one of our precedents held that a

stigma claim can lie even when it was not shown that records of treatment are

subject to public disclosure. See Coleman v. Dretke, 409 F.3d 665 (5th Cir. 2005).

The Coleman appeal, however, was a habeas challenge to the imposition of

mandatory sex offender treatment at the conclusion of a prisoner’s sentence.

The court held that even if the state did not publicize the petitioner’s status by

placing him on the sex offender registry or disclosing records of his treatment,

there were “adverse social consequences” that arose from requiring him to attend

sex offender therapy; those effects required heightened due process. Id. at 668.

Coleman was not applying the Section 1983 stigma-plus test, but rather

interpreting the due process standards for commitment of prisoners to mental

institutions. See Vitek v. Jones, 445 U.S. 480 (1980).

Mrs. Tebo’s only evidence of publication is an affidavit by one witness in

the community that she “heard that Thurman Tebo had tried to have Mrs. Tebo

committed because she was mentally incompetent.” There is no indication that

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this information came from the report signed by Doctors Bush and Holbrook, or

from anyone else connected to the government. We find no basis to conclude

that the publication element is met by evidence of this sort.

Even if there were a stigma, it would not be enough. Mrs. Tebo must also

establish that an independent constitutional interest was violated. She must

show that she was deprived of a right previously existing under state law or the

U.S. Constitution. Paul v. Davis, 424 U.S. 693, 708 (1976). Mrs. Tebo alleges

that her right to liberty was violated by the threat of mental commitment. Even

though she was not committed, she claims she went to Doctors Bush and

Holbrook involuntarily. She asserts that Joan Sonnier told her “she had to go

see the two doctors on Monday,” and she was “scared the defendants would have

her locked up . . . if she did not obey their commands.” Mrs. Tebo cites Dr.

Holbrook’s deposition testimony, in which he testified that Mrs. Tebo told him

that “someone else made her come” and “[s]he did not want to be there.”

Holbrook, in turn, cites Mrs. Tebo’s deposition, in which she agreed that the

sheriff did not force her to go, that her brother drove her to the doctor, and that

her attorney did not tell her not to go.

The cases cited by Mrs. Tebo did not find that a person’s liberty interest

was violated on facts consisting of nothing more than a sense of being pressured

to receive this sort of medical examination. Moreover, Mrs. Tebo does not

contest that Doctors Bush and Holbrook had no contact with or knowledge of her

before she arrived at their offices for her appointment. Joan Sonnier, who Mrs.

Tebo says told her she was required to attend the evaluations, is no longer a

party. Mrs. Tebo does not explain how the doctors could have been involved in

any such conspiracy. Thus, there is not a genuine issue of material fact as to

whether the doctors deprived Mrs. Tebo of a protected liberty interest.

Summary judgment on this claim is affirmed.

2. Intentional Infliction of Emotional Distress by the Doctors

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The standard for an intentional infliction claim has previously been stated.

This claim as it relates to the doctors arises from the statements in the report

of the psychological evaluation that Mrs. Tebo was mentally ill and required

inpatient psychiatric treatment.

While those statements might constitute outrageousness if they were

intentionally false, Mrs. Tebo presents no evidence of such intent. Her medical

expert created a genuine issue as to whether the doctors’ evaluation was

negligently conducted and not in conformity with the relevant statutes. We

address those claims later. But there is nothing in the record indicating that

Bush or Holbrook had any reason to falsify their report or to harm Mrs. Tebo.

Mrs. Tebo’s speculation as to bad motives, without presenting some evidence

that would allow a fact-finder to find intentional or reckless conduct, does not

allow the claim of intentional infliction of emotional distress by the doctors to

withstand summary judgment. We affirm judgment on this claim.

3. Malicious Prosecution

The elements of this tort have already been explained. There is no

evidence of malice in instituting or continuing the proceedings. Mrs. Tebo points

to no motive or potential bad objective on the part of Doctors Bush and Holbrook.

At most, she lays out a negligence claim. Summary judgment as to malicious

prosecution is affirmed.

4. Negligence per se and Medical Negligence

a. Dr. Bush

Mrs. Tebo argues that Dr. Bush violated various provisions of the civil

commitment statutes. These violations are said to constitute negligence per se.

Questions are also raised concerning whether Dr. Bush was negligent in his

medical evaluation of Mrs. Tebo. However, because Dr. Bush is a public

employee, issues of immunity control the outcome.

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A section of the Mississippi Tort Claims Act provides that “no employee

shall be held personally liable for acts or omissions occurring within the course

and scope of the employee’s duties.” Miss. Code Ann. § 11-46-7. Excluded are

“fraud, malice, libel, slander or any criminal offense.” Id. Mrs. Tebo argues that

Dr. Bush is not entitled to this immunity because the doctor “acted willfully and

maliciously.” As explained with respect to the intentional infliction and

malicious prosecution claims, there is not sufficient evidence to raise a genuine

issue of material fact that Dr. Bush acted with malice. Moreover, Mrs. Tebo does

not dispute that Dr. Bush is subject to this statutory immunity provision and

does not explain how an exception for intentional torts could apply to a claim for

per se negligence in violating a statute or negligently providing medical care. Dr.

Bush is entitled to this statutory immunity.

b. Dr. Holbrook

Dr. Holbrook does not argue that he is entitled to the immunity for public

employees. He cites us to another statute that immunizes actions taken under

the civil commitment statutes that were “in good faith in connection with” the

“opinions of physicians and psychologists,” among other things. Id. § 41-21-

105(1). Mrs. Tebo claims that Dr. Holbrook has no immunity because there can

be no good faith given her evidence that the statutory procedures were not

followed and the medical standard of care was not upheld.

“Good faith” is not defined by the statute. In other contexts, “good faith”

has been defined as the “absence of intent to defraud or seek unconscionable

advantage.” In re Estate of Wheeler, 958 So. 2d 1266, 1273 (Miss. Ct. App. 2007).

It has been held that the immunity applies to charges of “wrongful commitment,

unlawful detention, battery (based on non-consensual treatment) and the like.

It speaks to negligence only insofar as one might deviate from the appropriate

standard of care in making the commitment decision.” Carrington v. Methodist

Med. Ctr., 740 So. 2d 827, 829 (Miss. 1999). It is precisely the making of the

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commitment decision that was at issue here – not, as in Carrington, the failure

to prevent a suicide occurring after a commitment took place.

Mrs. Tebo accuses Dr. Holbrook of two negligence-based claims; negligence

is at the core of what the statute immunizes. Summary judgment is affirmed as

to the negligence claims against the doctors.

III. Conclusion

We AFFIRM the grant of summary judgment with respect to all claims.

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