* Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-60425

Summary Calendar

__________________

S. MICHAEL CASHIO,

Plaintiff - Appellant,

versus

ALPHA GULF COAST, INC., doing business as Bayou Caddy's

Jubilee Casino; GEORGE BAXTER, President,

Defendant - Appellees.

______________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(1:94-CV-321-BRR)

______________________________________________

December 21, 1995

Before KING, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

Plaintiff S. Michael Cashio appeals from a summary judgment in

favor of defendants Alpha Gulf Coast, Inc. and George Baxter. We

affirm.

On June 21, 1994, Cashio, a member of the Mississippi bar, was

gambling at a casino operated by the defendants. While playing
1 Casino personnel contend that they merely read Cashio the

Mississippi statute that allows private businesses to refuse

service to any person and that those who fail to comply are guilty

of trespass. See Miss. Code Ann. § 97-23-17(1)-(3) (1994). Cashio

alleges he was accused of trespassing. For purposes of summary

judgment we will adopt Cashio's version on the encounter.

2 Cashio's second supplemental complaint averred that being

accused of the crime of trespassing was in violation of his rights

under the First, Fourth, Fifth, and Fourteenth Amendments.

2

blackjack, casino personnel determined that Cashio was using a

technique of "card-counting" which, while neither illegal nor

cheating, in their opinion gave him an unfair advantage. While

Cashio was "cashing in" to leave, casino personnel confronted him,

escorted him to his car, and advised him not to return or he would

be subject to arrest as a trespasser.1 Cashio sued the casino

alleging intentional infliction of emotional distress, defamation,

and unspecified federal constitutional violations.2 

The defendants moved for summary judgment. The district court

granted summary judgment on the basis that, as a matter of law, the

incident did not rise to the level of intentional infliction of

emotional distress or defamation. Further, the court rejected

Cashio's argument that the Mississippi statute allowing private

businesses to refuse service to any person was either trumped by

the Mississippi Gaming Control Act or was unconstitutional. This

appeal ensued.

We review a summary judgment under well-established standards.

Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482, 484 (5th Cir.

1995); see Sterling Property Management, Inc. v. Texas Commerce

Bank, Nat'l Ass'n, 32 F.3d 964, 966 (5th Cir. 1994). Summary

judgment is proper if, when viewing the evidence in the light most
3

favorable to the nonmovant, the moving party establishes that there

is no genuine issue as to any material fact and that it is entitled

to judgment as a matter of law. Sterling, 32 F.3d at 966.

The district court properly denied Cashio's claim of

intentional infliction of emotional distress. Under Mississippi

law, recovery for intentional infliction of emotional distress

requires "something about the defendant's conduct which evokes

outrage or revulsion." Leaf River Forest Prods., Inc. v. Ferguson,

1995 WL 611717, at *10 (Miss. Oct. 19, 1995) (quoting Sears,

Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss. 1981)). The

complained of conduct must be "extreme and outrageous." Burris v.

South Cent. Bell Tel. Co., 540 F. Supp. 905, 909 (S.D. Miss. 1982).

Liability clearly does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities. Id.

Even adopting Cashio's description of the encounter with casino

personnel, as a matter of law, no reasonable juror could conclude

that the conduct rose to the level of "extreme and outrageous."

Summary judgment was therefore proper.

To prevail on the defamation claim, Cashio must prove: (1) a

false and defamatory statement, (2) unprivileged publication to a

third party, (3) fault amounting at least to negligence, and (4)

special harm or actionability irrespective of special harm.

Chatham v. Gulf Publishing Co., 502 So.2d 647, 649 (Miss. 1987).

In this case, there is no summary judgment evidence that anyone

other than Cashio and the two casino employees heard the word

"trespass" used. In fact, there is no evidence that any words

spoken to the plaintiff were overheard. Consequently, Cashio
3 Cashio's single cited case, Kreimer v. Bureau of Police for

Town of Morristown, 958 F.2d 1242 (3d Cir. 1992), concerns First

Amendment rights in the context of a limited public forum, a public

library, and is inapplicable to a privately-owned business.

4

cannot prevail on his defamation claim because there is no

publication to a third party.

Cashio's final argument on appeal is that section 97-23-17,

allowing private businesses to refuse service to any person, is

either unconstitutional or repugnant with the Mississippi Gaming

Control Act. This point is meritless. Cashio cites no relevant

authority3 to support his claim that section 97-23-17 is

unconstitutional. As for repugnancy with the Gaming Control Act,

quite simply, the two statutes are compatible and not repugnant.

Compare Miss. Code Ann. § 97-23-17 (1994) (allowing private

business to refuse service) with Mississippi Gaming Control Act,

Miss. Code Ann. § 75-76-35 (1994) (requiring Mississippi Gaming

Commission to create a list of prohibited persons whose presence

poses a threat to the interests of the state or to licensed

gaming). 

The summary judgment is AFFIRMED.