*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-60775

Summary Calendar

____________________

RUTHIE TYUS, Administratrix of the Estate of Sims Tyus,

Deceased,

Plaintiff-Appellant,

v.

RCG MISSISSIPPI INC, doing business as Kidney Care Inc,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(1:96-CV-285-S-D)

_________________________________________________________________

January 5, 1999

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Dorothy and Sims Tyus brought this action against defendantappellee RCG Mississippi, Inc. alleging negligence, malicious

prosecution, abuse of process, and intentional infliction of

emotional distress arising out of Dorothy Tyus’s dialysis

treatment. The district court granted defendant-appellee’s

motion for summary judgment on Sims Tyus’s claims and dismissed
2

Dorothy Tyus’s claims. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

Dorothy Tyus, a blind person with end stage renal disease,

began receiving dialysis treatment from defendant-appellee RCG

Mississippi, Inc. (RCG) in June 1995. Her husband, Sims Tyus,

usually escorted her into the clinic and to her dialysis chair. 

In April 1996, Dorothy Tyus alleged that a RCG nurse negligently

allowed her to bleed for a prolonged period of time.

In May 1996, RCG wrote Sims Tyus a letter requesting that he

only assist Dorothy Tyus into the building and not accompany her

to her chair. RCG alleges that Sims Tyus had become belligerent

and aggressive with the staff and harassed other patients. RCG

accused Sims Tyus of not abiding by this restriction and stated

in an August 22, 1996 letter that he was barred from entering RCG

property and that local authorities would be called if he did so. 

Sims Tyus did enter RCG property on August 30, 1996, and RCG had

him arrested by the local police department. Sims Tyus was

convicted in municipal court for trespass and paid a fine.

Dorothy and Sims Tyus filed this suit in state court on

August 20, 1996, alleging RCG breached its duty of care to

Dorothy Tyus by improperly treating her in April 1996. RCG

removed the case to the United States District Court for the

Northern District of Mississippi on the basis of 28 U.S.C.

§ 1441(a). Dorothy and Sims Tyus amended their complaint in

February 1997, adding claims of malicious prosecution, abuse of
3

process, and intentional infliction of emotional distress arising

out of Sims Tyus’s arrest. Dorothy Tyus died in April 1997, and

RCG filed a suggestion of death with the court on May 5, 1997. 

The district court granted RCG’s motion for summary judgment as

to Sims Tyus’s claims in October 1997, and dismissed Dorothy

Tyus’s claims because no motion for substitution had been made. 

See Tyus v. Kidney Care, Inc., 982 F. Supp. 422 (N.D. Miss.

1997). Sims Tyus timely appealed both the grant of summary

judgment on his own claims and the dismissal of Dorothy Tyus’s

claims. Sims Tyus died in February 1998, and this court

substituted plaintiff-appellant Ruthie Tyus as administratrix of

his estate. 

II. DISCUSSION

Ruthie Tyus argues that the district court erred in

dismissing Dorothy Tyus’s claims because a suggestion of death

was not served upon her estate as required by Rule 25 of the

Federal Rules of Civil Procedure. Ruthie Tyus also contends that

the district court erred in granting summary judgment because

there were genuine issues as to the claims of malicious

prosecution, abuse of process, and intentional infliction of

emotional distress. We address each of these issues in turn.

A. Standard of Review

We review questions of law such as a district court’s

interpretation of a Federal Rule of Civil Procedure de novo. See

Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 827

(5th Cir. 1996). We also review the grant of summary judgment by
 

1 Whether Dorothy Tyus’s claims survived her death is

determined under Mississippi law. See Ransom v. Brennan, 437

F.2d 513, 520 (5th Cir. 1971); see also Miss. Code Ann. § 91-7-

237 (“When either of the parties to any personal action shall die

before final judgment, the executor or administrator of such

deceased party may prosecute or defend such action.”). Neither

party argues that Dorothy Tyus’s claims did not survive her

death, and Mississippi courts have defined a “personal action” as

including actions “for the recovery of damages for the commission

of an injury to the person or property.” Powell v. Buchanan, 147

So. 2d 110, 111 (Miss. 1962) (quoting 1 C.J.S. Actions § 1). We

therefore agree with the district court’s implicit finding that

Dorothy Tyus’s claims survived her death.

4

a district court de novo. See Tolson v. Avondale Indus., Inc.,

141 F.3d 604, 608 (5th Cir. 1998). We first consult the

applicable law to determine the material fact issues. See Baker

v. Putnal, 75 F.3d 190, 197-98 (5th Cir. 1996). “We then review

the evidence bearing on those issues, viewing the facts and

inferences to be drawn therefrom in the light most favorable to

the nonmoving party.” Id. at 198. Summary judgment is

appropriate if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). 

A. Dorothy Tyus’s Claims

Rule 25(a)(1) provides that “[i]f a party dies and the claim

is not thereby extinguished, the court may order substitution of

the proper parties.”1 Fed R. Civ. P. 25(a)(1). Once information

of a death is provided pursuant to a suggestion of death, a

representative has ninety days to file a motion to substitute. 

See id.; Fed. R. Civ. P. 25 advisory committee’s note. The

suggestion of death upon the record is a statement of the fact of

a party’s death “served on the parties as provided in Rule 5 and
5

upon persons not parties in the manner provided in Rule 4 for the

service of a summons.” Fed. R. Civ. P. 25(a)(1).

Ruthie Tyus contends that the suggestion of death that RCG

filed in the district court on May 5, 1997 was inadequate to

begin the ninety-day period for a motion to substitute because

“the appropriate representative of the estate” was not served a

suggestion of death under Rule 4. Rather, RCG only served the

suggestion on the attorney of record, Rhonda Hayes-Ellis, who

represented Sims Tyus and had represented Dorothy Tyus. Because

the representative of the estate was not personally served under

Rule 4, Ruthie Tyus argues, Dorothy Tyus’s claims should be

remanded for a trial on the merits.

The flaw in Ruthie Tyus’s argument, however, is her

admission that Sims Tyus was the sole heir and successor of the

claims brought by Dorothy Tyus. Rule 25(a)(1) requires only that

“persons not parties” be personally served the suggestion of

death as provided in Rule 4; the suggestion shall be served on

parties “as provided in Rule 5.” Id. Rule 5 requires that when

service is required upon a party represented by an attorney, “the

service shall be made upon the attorney unless service upon the

party is ordered by the court.” Fed. R. Civ. P. 5(b). Sims Tyus

was clearly a party in this action, and therefore service of the

suggestion upon his attorney was proper under Rule 25 and

triggered the ninety-day period within which to file a motion to

substitute. Ruthie Tyus’s claim that RCG was required to serve

Sims Tyus personally is in direct conflict with the clear
6

language of the Federal Rules, and we therefore affirm the

dismissal of Dorothy Tyus’s claims.

B. Malicious Prosecution

Under Mississippi law, Ruthie Tyus must prove each of the

following elements to prevail on a malicious prosecution claim:

(1) the institution or continuation of original judicial 

proceedings, either criminal or civil;

(2) by, or at the insistence of RCG;

(3) the termination of such proceedings in Sims Tyus’s 

favor;

(4) malice in instituting the proceedings;

(5) want of probable cause for the proceedings;

(6) the suffering of damages as a result of the action or 

prosecution complained of.

See Moon v. Condere Corp., 690 So. 2d 1191, 1194 (Miss. 1997);

Pugh v. Easterling, 367 So. 2d 935, 937 (Miss. 1979).

Ruthie Tyus argues that Sims Tyus’s trespass conviction is

not fatal to her malicious prosecution claim because the

conviction was “procured through false testimony and without

foundation of the law.” In support of this argument, Ruthie Tyus

cites an article in American Jurisprudence stating that

convictions are generally fatal to malicious prosecution claims 

“in the absence of a direct and successful attack thereon based

on extrinsic fraud in its procurement, such as . . . fraudulent

or perjured testimony.” 52 Am. Jur. 2d Malicious Prosecution

§ 179 (1970) (footnotes omitted).

While the American Jurisprudence article may accurately

reflect the law in some jurisdictions, it is clearly not the law

in Mississippi. In Mississippi, “a conviction is conclusive

evidence of probable cause for instituting a criminal
7

prosecution, and a plaintiff, in a suit for malicious prosecution

based on a criminal prosecution, must show that the criminal

proceeding terminated in his favor as a condition precedent to

recovery.” Pugh, 367 So. 2d at 938. This is because “[i]f a

defendant is convicted on evidence obtained by fraud, perjury, or

other corrupt means, adequate post conviction remedies exist

whereby the conviction may be corrected.” Ruthie Tyus concedes

that Sims Tyus’s criminal proceeding did not terminate in his

favor, and therefore the district court properly granted RCG

summary judgment on Ruthie Tyus’s malicious prosecution claim.

C. Abuse of Process

Ruthie Tyus must demonstrate the following elements to

prevail on her abuse of process claim: (1) that RCG made an

illegal and improper perverted use of the process, a use neither

warranted nor authorized by the process; (2) that RCG had an

ulterior motive or purpose; and (3) that damage resulted to the

plaintiff from the abuse. See Moon, 690 So. 2d at 1197. Abuse

of process differs from malicious prosecution because malicious

prosecution “is the employment of process for its ostensible

purpose, but without reasonable or probable cause, whereas the

malicious abuse of process is the employment of a process . . .

to obtain an object which such a process is not intended by law

to effect.” Mississippi ex rel. Foster v. Turner, 319 So. 2d

233, 236 (Miss. 1975).

Ruthie Tyus argues that RCG secured the arrest of Sims Tyus

in retaliation for Dorothy and Sims Tyus’s filing suit against
8

RCG, and that RCG attempted to punish them for exercising their

rights. RCG claims it secured the arrest of Sims Tyus because of

his unruly behavior and his failure to heed its warning in its

August 22, 1996 letter not to enter its property. In the context

of the legitimate purposes RCG expresses and of the circumstances

surrounding Sims Tyus’s arrest, Ruthie Tyus has “a difficult

burden” to prove that RCG’s primary purpose was something other

than that contemplated by the statute prohibiting trespass. 

Wilcon, Inc. v. Travelers Indem. Co., 654 F.2d 976, 986 (5th Cir.

Unit A Aug. 1981). Our examination of the record convinces us

that Ruthie Tyus has not met this burden. 

RCG initially requested that Sims Tyus curtail his

activities on RCG properties in May 1996, three months before he

and his wife filed this suit. RCG wrote its August 22, 1996

letter warning Sims Tyus not to enter RCG property on the same

day that Sims Tyus’s attorney mailed RCG the summons and

complaint. RCG did not receive the summons and complaint until

August 26, 1996, and there is no evidence that RCG knew of the

lawsuit prior to August 26, 1996. RCG thus could not have issued

its warning to Sims Tyus in retaliation for the lawsuit, and

Ruthie Tyus points to no evidence except the conclusory

allegations of Dorothy and Sims Tyus that RCG had Sims Tyus

arrested for any reason other than the unruly behavior of which

it complained in its May and August 1996 letters. See Douglass

v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)

(en banc) (“[C]onclusory allegations, speculation, and
9

unsubstantiated assertions are inadequate to satisfy the

nonmovant’s burden.”). We therefore agree with the district

court that Ruthie Tyus fails to raise a genuine issue as to the

primary purpose of RCG’s use of process and we affirm its grant

of summary judgment on this issue.

D. Intentional Infliction of Emotional Distress

The standard of recovery for intentional infliction of

emotional distress “requires conduct ‘so outrageous in character,

and so extreme in degree, as to go beyond all bounds of decency

and to be regarded as atrocious, and utterly intolerable in a

civilized community.’” Morrison v. Means, 680 So. 2d 803, 805-06

(Miss. 1996) (quoting Restatement (Second) of Torts § 46). “It

has not been enough that the defendant has acted with an intent

which is tortious or even criminal, or that he has intended to

inflict emotional distress, or even that his conduct has been

characterized by ‘malice.’” Wong v. Stripling, 700 So. 2d 296,

306 (Miss. 1997) (quoting Restatement (Second) of Torts § 46 cmt.

d). Rather, extreme and outrageous conduct is conduct “which the

recitation of the facts to an average member of the community

would arouse his resentment against the actor, and lead him to

exclaim ‘Outrageous.’” Id.; see Jenkins v. City of Grenada, 813

F. Supp. 443, 447 (N.D. Miss. 1993) (citing Wilson v. Monarch

Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991). 

Ruthie Tyus argues that RCG’s decision to prohibit Sims Tyus

from entering the dialysis facility, and to have him arrested for

ulterior motives, evokes outrage or revulsion. After reviewing
10

the record, however, we disagree. Sims Tyus learned in May 1996

and again one week before he was arrested that his access to

RCG’s facility would be restricted because of his unruly

behavior. Although his presence undoubtedly increased his wife’s

comfort, there is no evidence that Dorothy Tyus was mistreated

when RCG staff assisted her into the RCG facility. Even after

receiving the August 22, 1996 letter and a verbal warning not to

enter RCG property, Sims Tyus asked RCG’s security guard to call

the police, entered RCG property in their presence, and was

arrested. As unfortunate as Dorothy and Sims Tyus’ situation may

have been, it does not demonstrate outrageousness and does not go

beyond all bounds of decency. We therefore affirm the district

court’s grant of summary judgment on Ruthie Tyus’s intentional

infliction of emotional distress claim.

III. CONCLUSION

For the foregoing reasons, we find that the district court

correctly granted summary judgment in favor of defendantappellee. The judgment is AFFIRMED.