Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Palmisano v. Mississippi Department of Wildlife Fisheries, & Parks

United States District Court, S.D. Mississippi, Western Division

March 11, 2015

JOSEPH W. PALMISANO, III, individually and on behalf of his minor son, JORDAN PALMISANO, Plaintiffs,


KEITH STARRETT, District Judge.

This matter is before the Court on Defendant's, Mississippi Department of Wildlife, Fisheries and Parks, Motion to Dismiss for Lack of Jurisdiction [docket entry no. 12]. Having reviewed the motion and responses, applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:

I. Factual and Procedural Background

In late October of 2013, Jordan Palmisano ("Jordan") was hunting on family property. After killing a deer, Jordan returned to the hunting camp to clean it, where he noticed a dead dog. Recognizing the dog, Jordan notified Defendant Eli Whitaker, the dog's owner. Jordan then returned home. While at home, Whitaker and Defendant Gary Crum[1] arrived and according to the complaint "aggressively interrogated" Jordan, who is a minor. Whitaker is a former employee of Defendant Mississippi Department of Wildlife, Fisheries & Parks ("the Department"), and Crum is a current employee of the Department. After this, Plaintiff Joseph W. Palmisano, III ("Palmisano"), Jordan's father, claims that he "was questioned, his vehicles searched, and he was accused of shooting [Whitaker's] dogs." State Court Record 5, ECF No. 2. Crum then told Palmisano according to the complaint "that he could either pay to replace the dog and the vet bill, or he [would] be arrested on felony charges and lose his home, guns and all of his hunting and farming equipment." State Court Record 5. Palmisano claims that, fearing the consequences of refusal, he wrote out a check to Whitaker.

Palmisano filed suit in the Circuit Court of Wilkinson County on September 8, 2014. Palmisano brought claims against all three defendants under 42 U.S.C. Section 1983 and the Mississippi Tort Claims Act ("MTCA"). On October 22, 2014, the Department removed the case to federal district court. The Department moved to dismiss on January 14, 2015. Also pending is a motion to dismiss filed by Whitaker on January 29, 2015.

II. Analysis

The Department argues that the claims against it should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6)[2] for failure to state a claim. The Department argues it is immune from liability through the Eleventh Amendment and that it is not a "person" for purposes of Section 1983 litigation. The Department further argues that Palmisano has failed to adequately state his claims against it under either Section 1983 or the MTCA.

A. Rule 12(b)(1) Argument

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). "[T]he burden of establishing [jurisdiction] rests upon the party asserting jurisdiction." Id . A district court may dismiss a suit for lack of subject matter jurisdiction based on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

The Department's chief argument against subject matter jurisdiction is its sovereign immunity flowing from the state of Mississippi's Eleventh Amendment immunity.[3] "[A]n unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Immunity to suit, however, is waived when a state or state agency voluntarily invokes the jurisdiction of a federal court through removal. Meyers ex rel. Benzing v. Tex. (Meyers I), 410 F.3d 236, 242-43 (5th Cir. 2005). Because the Department removed this case, it has waived its immunity to suit.

The Fifth Circuit in Meyers I held that "the Constitution permits and protects a state's right to relinquish its immunity from suit while retaining its immunity from liability, ... but that it does not require a state to do so." Id., at 255. On petition for rehearing, the Fifth Circuit clarified its holding to state that a state may waive its immunity to suit but still "assert its state sovereign immunity as defined by its own law as a defense against the plaintiffs' claims in the federal courts, but it may not use it to defeat federal jurisdiction or as a return ticket back to the state court system." Meyers ex rel. Benzing v. Tex. (Meyers II), 454 F.3d 503, 504 (5th Cir. 2006). Therefore, the Court will deny the motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity. See Kelley v. Papanos, No. H110626, 2012 WL 208446, at *3 (S.D. Tex. Jan. 24, 2012).

B. Rule 12(b)(6) Argument

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). The plaintiff must plead sufficient facts so that the court may reasonably infer the defendant's liability for the alleged misconduct. Id . "[A] plaintiff armed with nothing more than conclusions cannot unlock the doors of discovery." Doe v. Robertson, 751 F.3d 383, 393 (5th Cir. 2014) (internal quotations omitted).

The Department argues that it is sovereignly immune from liability in this case and that Palmisano has not adequately pled his claim under Section 1983. The Court finds that the Department is immune from suit under Section 1983. "There has been no Congressional abrogation of state sovereign immunity as to claims under § 1981, 1983, 1985 or 1986." Delaney v. Miss Dep't of Public Safety, No. 3:12cv229, 2013 WL 286365, at *3 (S.D.Miss. Jan. 24, 2013) (citing Hines v. Miss. Dep't of Corr., 239 F.3d 366 (5th Cir. 2000)). "Further, the State of Mississippi has not waived its sovereign immunity from liability in suits arising under §§ 1983 1985 or 1986." Id . (holding that the MTCA expressly reserves immunity from such suits). Because the Court finds that the Department is immune from liability in a Section 1983 suit, Palmisano has not plead a claim on which he might have some possibility of recovery. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.