United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion to dismiss. Docket
No. 3. The motion has been fully briefed and the Court is
ready to rule.
Factual and Procedural History
Glen Owens is a long-time employee of the City of
Flowood's Fire Department and a former employee of the
Reservoir Fire Department, where he maintained a second job.
He alleges that he was forced to resign from the Reservoir
Fire Department because the City of Flowood issued a policy
in July 2013 prohibiting its firefighters from working for
any other department. Owens claims that the City, by failing
to provide a hearing or an opportunity to be heard before
enacting the policy, deprived him of a property interest
without due process of law. He filed this suit against the
City of Flowood and members of its Board of Aldermen in their
official and individual capacities, claiming a due process
violation of the Fourteenth Amendment, a violation of
Mississippi Code Annotated § 25-9-127, and negligent
infliction of emotional distress.
considering a motion to dismiss for failure to state a claim,
the Court accepts the plaintiff's factual allegations as
true and makes all reasonable inferences in the
plaintiff's favor. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). To proceed, the complaint “must
contain a short and plain statement of the claim showing that
the pleader is entitled to relief.” Id. at
677-78 (quotation marks and citation omitted). This requires
“more than an unadorned, the
defendant-unlawfully-harmed-me accusation, ” but the
complaint need not have “detailed factual
allegations.” Id. at 678 (quotation marks and
citation omitted). The plaintiff's claims must also be
plausible on their face, which means there is “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
concedes that Mississippi Code § 25-9-127 only provides
protection to state service employees, of which he is not.
Docket No. 11. Therefore, he agrees that dismissal of the
purported claim brought under the statute is appropriate.
What remains to be addressed are his Fourteenth Amendment and
negligent infliction of emotional distress claims.
Fourteenth Amendment Claim
heart of the complaint is Owens' contention that the
City's newly enacted policy forced him to give up his
second job at the Reservoir Fire Department, thereby
depriving him of a property interest without due process of
the law in violation of the Fourteenth Amendment. Docket No.
1-1. He asserts this claim against the defendants under 42
U.S.C. § 1983.
claims against the Aldermen in their individual capacities
fail because liability under § 1983 only attaches to
final decision-makers. See Johnson v. La., 369 F.3d
826, 831 (5th Cir. 2004). Under Mississippi law, a municipal
board acts as a body. Smith v. Bd. of Supervisors of
Tallahatchie Cty., 86 So. 707, 709 (Miss. 1921). None of
the members, individually, can implement policy; that
requires a vote from the full board. See, e.g., Crabb v.
Itawamba Cty., Miss, No. 1:04-CV-138-P-D, 2005 WL
2648017, at *2 (N.D. Miss. Oct. 17, 2005) (holding that an
individual member of the county board of supervisors could
not be liable for his vote under § 1983). Therefore, the
Aldermen cannot be held individually liable under §
1983. All that persist are the claims against the City and
the Aldermen in their official capacities.
state a § 1983 claim against the municipality, Owens
must allege a constitutional or federal law violation and an
official policy or custom that was the moving force behind
the violation. Piotrowski v City of Houston, 237
F.3d 567, 578 (5th Cir. 2001); Brown v. Bryan Cty.,
Okla, 219 F.3d 450, 457 (5th Cir. 2000). Since he is
claiming “a procedural due process [violation] . . .,
[he] must first identify a protected life, liberty[, ] or
property interest and then prove that governmental action
resulted in a deprivation of that interest.”
Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir.
2001). Owens does not meet the first requirement.
contends that he had a protectable property interest in his
employment with the Reservoir Fire Department. Docket Nos.
1-1 and 11. Under Mississippi law, however, his employment
was at-will “unless an express or implied contract,
state law, or local ordinance indicate[d] otherwise.”
Johnson v. City of Shelby, Miss., 642 F. App'x
380, 383 (5th Cir. 2016) (citing Levens v. Campbell,
733 So.2d 753, 763 (Miss. 1999)). The complaint is void of
any allegations that such a contract exists and the law does
not establish such a right. See Docket No. 1-1.
responsive brief argues that his employment with the
Flowood Fire Department and its Standard Operating
Procedures Manual somehow created a property interest in his
employment with the Reservoir Fire Department.
Docket No. 11. While a detailed employment manual or handbook
with an outlined disciplinary scheme can, if the relationship
is not explicitly characterized as at-will, establish a
property interest in continued employment, Johnson,
642 F. App'x at 383, it is difficult to conceive how one
employer's policies can affect the at-will nature of