United States District Court, S.D. Mississippi, Northern Division
MARLITA E. POLLARD, Plaintiff,
HINDS COUNTY DEPARTMENT OF HUMAN SERVICES, MICHAEL W. MILLER, and JOHN DOES 1-10, Defendants.
DANIEL P. JORDAN, III, District Judge.
This employment-discrimination and sexual-harassment case is before the Court on Defendant Mississippi Department of Human Services' Motion to Dismiss  and Defendant Michael Miller's Motion to Dismiss  pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Marlita Pollard responded [31, 32] to the Defendants' Motions, and Defendants each filed Rebuttals [33, 34]. The Court, having considered the memoranda and submissions of the parties, along with the pertinent authorities, finds that the Defendants' Motions should be granted.
I. Facts and Procedural History
Plaintiff Marlita Pollard, a former employee of MDHS, filed this action in federal court seeking damages for sexual harassment, sexual discrimination, a sexually-hostile work environment, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1983; the Fourteenth Amendment; and "other provisions of the United States Constitution." Compl.  at 1.
In very general terms, Pollard avers that Defendant Michael Miller, an MDHS supervisor, subjected her to a long-standing pattern of sexual harassment. She therefore seeks money damages, including future wages, back pay, compensatory damages, punitive damages, and attorney's fees from MDHS, Miller, and John Does 1-10, whom she describes as "supervisory capacity" employees at MDHS. Id. ¶¶ 2-4, 40. Defendants answered [3, 4] the Complaint and later filed the instant Motions to Dismiss [22, 24]. Pollard responded [31, 32], and Defendants filed Rebuttals [33, 34]. The Court is now prepared to rule.
II. Standard of Review
As an initial matter, both Defendants filed their Rule 12(b)(6) motions after their Answers [3, 4] and after the pleadings closed on October 28, 2013. See Case Management Order . The Court therefore construes the motions as motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam). Regardless, the standard of review is the same under either rule. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002).
In considering a motion under Rule 12(c), the "court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Greninger, 188 F.3d at 324). To overcome a Rule 12(c) motion, Plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations and footnote omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). It follows that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). "This standard simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary claims or elements." In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly, 550 U.S. at 556).
MDHS and Miller both seek dismissal of some but not all of Pollard's claims. Because the arguments are similar as to both Defendants, their motions will be considered collectively.
A. Section 1983 Claims
Pollard sues MDHS and Miller under 42 U.S.C. § 1983. That statute provides a civil cause of action against "[e]very person who, under color of" state law, deprives another "of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. But as recently stated by this Court in Williams v. Berry, "[t]he claim against MDHS is due to be dismissed, as MDHS, an arm of the State, is not a person' under § 1983, and has immunity under the Eleventh Amendment." 977 F.Supp.2d 621, 628 (S.D.Miss. 2013) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)); see also Stewart v. Jackson Cnty., Miss., No. 1:07cv1270WJG-JMR, 2008 WL 4724009, at *2 (S.D.Miss. Oct. 25, 2008) (finding that MDHS is an arm of the State entitled to Eleventh Amendment immunity).
As for Miller, Pollard's Complaint fails to indicate whether she intended to sue him in his individual capacity, official capacity, or both. Inferring an official-capacity claim, Miller now moves to dismiss the § 1983 claim against him because such a claim would simply be another moribund claim against an arm of the state. See Def.'s Mem.  at 4. Miller is correct. See Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n.55 (1978) (noting that "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent").
Pollard failed to respond to either MDHS or Miller regarding the § 1983 claims and thus has abandoned them. See Estate of Pernell v. City of Columbus, No. 1:08CV0040-DD, 2010 WL 1737638, at *4 (N.D. Miss. Apr. 28, 2010) (holding that failure to argue a point in response amounts to a concession of the issue). Regardless, Defendants' arguments are meritorious, and the Court ...