United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the  Motion for Summary Judgment Based on Res Judicata and Failure to Comply with The Mississippi Tort Claims Act filed by Defendants City of Ocean Springs, Mississippi ("the City"), Lionel Cothern ("Cothern"), Mark Dunston ("Dunston"), and Jonathan Grimes ("Grimes") in their official capacities (collectively, "Defendants"). Having reviewed the submissions of the parties and the relevant law, the Court is of the opinion that the Motion should be granted in part and denied in part.
Plaintiff Stephen Munn's federal constitutional claims brought pursuant to 42 U.S.C. § 1983 against the City, Cothern, Dunston, and Grimes in their official capacities are barred by the doctrine of res judicata to the extent those claims are based on allegations pertaining to a November 2011 citation for violation of the City's Noise Ordinance. Plaintiff could have litigated those allegations in his 2012 action before this Court. Furthermore, Plaintiff concedes that he is not making any state law claims pursuant to the Mississippi Tort Claims Act, and his assault and battery and negligence claims are not cognizable under § 1983. Plaintiff's claims against the individual Defendants in their individual capacities, and his federal constitutional claims based on alleged unconstitutional enforcement of the City's Noise Ordinance against him in December 2013, will proceed at this juncture.
Plaintiff Stephen Munn instituted this action against the City, Cothern, Dunston, Grimes, and multiple Doe Defendants on November 11, 2014. Munn claims that Defendants violated various rights under the United States Constitution and seeks to hold them liable pursuant to 42 U.S.C. § 1983. His Complaint also includes counts for assault and battery and negligence, as well as for declaratory and injunctive relief. Munn alleges that "the unlawful actions of the Defendants... occurred on November 27, 2011 through December 5, 2013" and were all related "to the operation of his business and playing music for customers." (Compl. 2 (¶3), ECF No. 1).
Munn owns The Purple Pelican, a bar and nightclub featuring musical entertainment located in the City. In 2012, Munn sued the City, claiming, inter alia, that the City's Noise Ordinance was unconstitutional. The City removed the action to this Court, that ultimately granted summary judgment in favor of the City on Munn's claims. ( See generally Cause No. 1:12cv97-LG-JMR). The Fifth Circuit Court of Appeals later affirmed that judgment, Munn v. City of Ocean Springs, 763 F.3d 437 (2014), and subsequently denied Munn's Petition for Rehearing.
Munn filed this lawsuit on November 21, 2014. Munn acknowledges that the Fifth Circuit found the Noise Ordinance to be constitutional, but claims that "it has been unconstitutionally applied to him and others in its enforcement...." (Compl. 5 (¶18), ECF No. 1). He discusses two specific instances of alleged unconstitutional enforcement in his Complaint. First, Munn claims that he was cited for violation of the Noise Ordinance in November 2011, although the charges were later dropped. Second, Munn claims that in December 2013, "Defendant 10, believed to be Justin Cummings, " along with one of the Doe Defendants and Grimes, "came to the Pelican allegedly to investigate [an] anonymous noise complaint." ( Id. at 10 (¶41)). Munn states that Cummings "proceeded to demand Munn turn down the music and repeatedly placed his hands on Munn in an intimidating and offensive manner...." ( Id. (¶42)). According to the Complaint:
... Grimes made a snide remark and told Munn, I think you know that I know a lot about the Constitution[.]'... Munn[, who was] armed with [a] decibel meter[, ] refused to turn down the music despite the officer's [ sic ] threats and intimidation. They eventually left without writing a ticket, but they were sure to make their presence known to the patrons....
( Id. at 11 (¶44)).
Munn claims that the issuance of a citation to him in November 2011 violated his "constitutional rights to Due Process and Equal Protection under the Fourteenth Amendment to the United States Constitution" and that "[i]t further violated his right of free speech under the First Amendment to the United States Constitution." ( Id. at 6-7 (¶25)); ( see also id. at 12 (¶47)). He alleges that he "justifiably protested Grimes['] actions that evening [and that] Grimes wrote a ticket, in whole or in part, because Munn objected to Grimes['] actions resulting in an arrest that was abusive and violated the protections afforded Munn by the First and Fourteenth Amendments...." ( Id. at 7 (¶28)). Munn makes similar allegations of violations of his First and Fourteenth Amendment rights related to the December 2013 incident, although he does not claim that that incident resulted in a citation. He also claims that the actions of Defendants in both instances violated his right to substantive due process and constituted an unlawful search and seizure under the Fourth Amendment.
Defendants contend that Munn's federal claims against the City and Cothern, Dunston, and Grimes in their official capacities are barred by the doctrine of res judicata. They argue that Munn is trying to take a "second bite at the apple" by filing this action, "wherein he has alleged new' constitutional violations under the exact same set of facts as his previous 2012 filings, with the exception of naming officers individually, throwing in a state law claim and putting in a 2013 noise ordinance incident which has resulted in the same 2012 complaints." (Defs.' Mot. 4 (¶8), ECF No. 4). Defendants also argue that Munn's claims for assault, battery, and negligence should be dismissed due to Munn's failure to comply with the Mississippi Tort Claims Act.
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-movant. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). The movant bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 ...