United States District Court, N.D. Mississippi, Oxford Division
REPORT AND RECOMMENDATION OF DISMISSAL
JANE M. VIRDEN, Magistrate Judge.
This matter is before the court for a report and recommendation by the undersigned Magistrate Judge on Defendant Officer Milton Williams, Jr.'s Motion to Dismiss for Failure to State a Claim . Upon due consideration of this case and the applicable law, the court finds the pro se plaintiff's amended complaint against Officer Williams should be dismissed for the reasons hereafter discussed.
On May 27, 2012, Plaintiff's wife, Sherry Smith, was driving his truck on Eighth Street in downtown Lambert, Mississippi. See Am. Compl.  at 2. Around midnight, Smith was stopped by Officer Williams under suspicion of driving under the influence (DUI). Id. After pulling Smith over, Officer Williams alleges he asked her to submit to a breathalyzer test. When she refused, Officer Williams arrested her for DUI under Mississippi Code § 63-11-30(1)(a). See Ex. A to Def. Williams' Mem. in Supp. of Mot. to Dismiss [38-1]. Smith was charged with a first offense DUI, disorderly conduct, and failure to have a driver's license. See Ex. B. to Def.'s Mem. in Supp. of Mot. to Dismiss [38-2]. After placing Smith under arrest, Officer Williams requested the truck she was driving be towed away from the scene. See Am. Compl.  at 2. Accordingly, Barringer Motor Company ("Barringer") towed the vehicle and stored it on Barringer's property. Id. Plaintiff does not allege in his Amended Complaint anyone else, including himself, was available to drive the vehicle away from the scene.
On June 25, 2012, Barringer sent Plaintiff a certified letter notifying him his truck would be sold on July 16, 2012, if he did not request return of the truck and did not pay the accrued towing and storage fees. See Mem. in Supp. of Def. Barringer's Mot. to Dismiss  at 9. Plaintiff received the certified letter and signed for it, but did not attempt to retrieve the truck. Id. at 11. Barringer sent a second certified letter on July 6, 2012, to Plaintiff, notifying him of the impending sale of the truck. Id. at 10. Plaintiff's wife signed for the second certified letter. Id. at 11. Again, Plaintiff did not contact Barringer about the truck. On August 30, 2012, Plaintiff's wife pled guilty to DUI, first offense in Quitman County Justice Court. See Ex. C. to Def.'s Mem. in Supp. of Mot. to Dismiss [38-3]. On November 30, 2012, Barringer sold Plaintiff's truck for $955, leaving over $400 in unpaid towing and storage fees. See Mem. in Support of Def. Barringer's Mot. to Dismiss  at 16. Plaintiff's Amended Complaint does not allege Officer Williams played any role in the sale of the truck by Barringer. Plaintiff had an opportunity to recover the truck by paying the accrued towing and storage fees but did not do so. Plaintiff alleges no facts indicating Officer Williams prevented Plaintiff from re-possessing the truck. Plaintiff brings suit against Officer Williams under 42 U.S.C. § 1983 for violations of his Fourteenth Amendment rights to due process of law and equal protection of the law. See Am. Compl.  at 3. Specifically, he alleges Officer Williams caused him to be deprived of his property "when he called upon Barringer Motor Co., to take charge and possession of [his] vehicle who thereafter forfeited the same without judicial process." Id. He seeks to recover $300, 000 in compensatory damages. Id.
Standard of Review
In his motion, Officer Williams seeks dismissal of Plaintiff's due process and equal protection claims pursuant to Rule 12(b)(6) - failure to state a claim upon which relief can be granted. Mem. in Supp. of Def.'s Mot. to Dismiss  at 3. Defendants' motion includes exhibits, referencing Plaintiff's wife's citation, arrest, and guilty plea of driving under the influence. Id. It also makes references to various other pleadings on this case's docket. Id.
Federal Rule of Civil Procedure 12 provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
FED. R. CIV. P. 12(d) (emphasis added). The Fifth Circuit has explained:
[u]nder Rule 56, it is not necessary that the district court give ten days' notice after it decides to treat a Rule 12(b)(6) motion as one for summary judgment, but rather after the parties receive notice that the court could properly treat such a motion as one for summary judgment because it has accepted for consideration on the motion matters outside the pleadings, the parties must have at least ten days before judgment is rendered in which to submit additional evidence.
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.1990) (internal quotation marks omitted) (citing Clark v. Tarrant Cnty., Texas, 798 F.2d 736, 746 (5th Cir.1986)). "A party is on notice of the possibility that a court may convert a Rule 12(b)(6) motion into a motion for summary judgment ten days after a party submits evidence outside of the pleadings and that evidence is not excluded by the court." Bowers v. Nicholson, No. H-07-1910, 2007 WL 3047223, at * 4 (S.D.Tex. Oct.18, 2007) (internal citation omitted). This court has most recently accepted such a conversion from a Motion to Dismiss to a Motion for Summary Judgment in McNair v. Mississippi. See No. 4:13-CV-00127-DMB-JMV, 2014 WL 4181847, at *1 (N.D. Miss. Aug. 21, 2014).
Officer Williams submitted matters outside the pleadings in his Motion to Dismiss. See Mem. in Supp. of Def.'s Mot. to Dismiss . Therefore, Defendants' motion should be treated as one for summary judgment.
Summary judgment is warranted under Rule 56(c) when evidence reveals no genuine dispute regarding any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In reviewing the evidence, factual controversies are to be resolved in ...