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Moody v. Farrell

United States Court of Appeals, Fifth Circuit

August 17, 2017

ANGELA DAWN MOODY, Plaintiff-Appellant,
SCOTT FARRELL, in his Individual Capacity, Defendant-Appellee.

         Appeal from the United States District Court for the Northern District of Mississippi

          Before KING, PRADO, and SOUTHWICK, Circuit Judges.

          EDWARD C. PRADO, Circuit Judge

         Plaintiff-Appellant Angela Moody repeatedly sent mean-spirited messages to her ex-husband, Defendant-Appellee Scott Farrell. After Farrell complained to the police, Moody was arrested for felony cyberstalking, a charge that was later dropped. Moody then sued Farrell and others under 42 U.S.C. § 1983, alleging that her First and Fourth Amendment rights had been violated. The district court granted summary judgment on the ground that Moody could not prove Farrell was a state actor for purposes of § 1983. For the reasons stated below, we AFFIRM.

         I. BACKGROUND

         Angela Moody and Scott Farrell had an acrimonious relationship following their divorce in 2011. They remained in communication with each other on account of their young daughter, who lived with Moody and visited Farrell every other weekend. Throughout 2012 and 2013, Moody sent many mean-spirited messages to Farrell via email, text message, and Facebook. Many of these messages pertained to child support and Farrell's visitation rights. Moody conceded in her deposition, however, that the purpose of other messages was simply "to be mean, " or "to hurt his feelings." On several occasions, including in November 2012, Farrell told Moody to stop sending him messages unless they pertained to their daughter and warned that further communication would constitute harassment. Farrell conceded in his deposition that he too sent "harassing" messages to Moody but stated that he stopped doing so after January 2013.

         In November 2012, Farrell contacted Officer Tony Cooper of the Lowndes County Sheriff's Department via Facebook to discuss his problems with Moody. Farrell was acquainted with Officer Cooper because one of Farrell's other ex-wives used to work at the sheriff's department. Officer Cooper advised Farrell to come to the sheriff's office, where Farrell filed a complaint against Moody for harassment on November 28, 2012. Either on that date or sometime later, Farrell brought documentation of the alleged abuse to the sheriff's office. Officer Cooper went on leave for several months shortly after reporting Farrell's complaint. While Officer Cooper was on leave, Farrell contacted him via Facebook four or five times to discuss the complaint against Moody; Officer Cooper instructed Farrell to contact other investigators. Farrell did so, and brought in further documentation of Moody's alleged harassment.

         Farrell's complaint was also reviewed by Lowndes County Prosecutor Allison Kizer, who decides whether to prosecute misdemeanor cases. She determined that the alleged conduct did not constitute misdemeanor harassment by electronic communication, which requires that the communication be obscene, lewd, lascivious, or threatening. See Miss. Code § 97-29-45(a), (b). But, according to Officer Cooper, Kizer told him that Moody's conduct did meet the requirements of felony cyberstalking. See Miss. Code § 97-45-15. In relevant part, Mississippi Code § 97-45-15(1)(b) defines cyberstalking as "[e]lectronically mail[ing] or electronically communicat[ing] to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person."

         After Officer Cooper returned to work, Farrell called the sheriff's office several times to tell him that Moody's harassment continued. At that point, Officer Cooper reviewed Moody's messages and concluded that her conduct did violate the law. Officer Cooper wanted to put the case before a grand jury, but Farrell, according to Officer Cooper, "was not happy with that and wanted [Moody] to be arrested." Officer Cooper signed an affidavit in support of an arrest warrant on November 6, 2013, alleging that Moody committed felony cyberstalking by sending "numerous text messages and emails" to Farrell after he told her "to cease emailing and texting him." Justice Court Judge Peggy Phillips signed the warrant on November 7, 2013. Moody turned herself in and was quickly released on her recognizance.

         A preliminary hearing was held before a different justice court judge on December 17, 2013. Officer Cooper testified and presented the accumulated documentation of alleged harassment. The justice court subsequently dismissed the case. According to Moody, the judge noted that "if ex-wives couldn't get upset with ex-husbands about not paying child support . . ., the whole jails here would be filled up with mad ex-wives."

         Moody filed a complaint against Lowndes County, Officer Cooper, and Farrell in the Northern District of Mississippi on October 21, 2014. Her claims against Officer Cooper and Farrell alleged violations of the First, Fourth, and Fourteenth Amendments. Moody also alleged state law claims, including abuse of process, against Farrell. Her claims against the county related to bail issues. The district court granted summary judgment in favor of all three defendants. Regarding Farrell, the district court found that Moody had failed to put forth sufficient facts showing that Farrell was a state actor for purposes of § 1983. Likewise, the district found insufficient evidence in support of Moody's abuse-of-process claim against Farrell. The district court held that Moody had waived her remaining state law claims against Farrell. Moody timely appealed.


         On appeal, Moody challenges the district court's dismissal of her § 1983 claim against Farrell.[1] To prevail on this claim, Moody must show both that Farrell (1) deprived her of her constitutional rights and (2) acted "'under color' of state law." Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting 42 U.S.C. § 1983); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Moody argues that Farrell was a state actor by virtue of acting jointly with Officer Cooper, and that Farrell violated the Fourth Amendment by causing her arrest without probable cause and the First Amendment because the arrest was based on protected speech. Farrell argues that Moody has failed to put forth sufficient evidence showing joint action between him and Officer Cooper, that there was probable cause for her arrest, and that Moody's harassment was not protected speech. In addition, Farrell asserts that he is immune from suit. Because we agree with the district court that Moody has failed to show that Farrell acted under color of state law, we need not address the parties' other arguments.

         A. ...

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