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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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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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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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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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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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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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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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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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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