United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
M. BROWN. UNITED STATES DISTRICT JUDGE.
that he was wrongfully incarcerated for approximately two
years due to his wrongful conviction on drug possession
charges, Weissenger Newberry, III sued John W. Champion,
Patrick Steven Jubera, and the State of Mississippi, seeking
damages for, among other things, lost wages and profits,
emotional anguish, medical expenses, legal fees, and pain and
suffering, as well as punitive damages. Doc. #2. Before the
Court are the motion to dismiss filed by Champion and Jubera,
Doc. #4; and the motion to dismiss filed by the State of
Mississippi, Doc. #9.
2, 2016, Newberry, proceeding pro se, filed a verified
“Complaint for Damages” in the Circuit Court of
Desoto County, Mississippi, against Champion and Jubera
(“Individual Defendants”),  and the State of
Mississippi. Doc. #2. Newberry asserted federal and state
claims arising out of his indictment, conviction, and
resulting imprisonment in 2012 for driving under the
influence, possession of marijuana, and possession of
cocaine, and his subsequent retrial and partial acquittals in
2015. Id. Specifically, Newberry asserts three
causes of action: (1) “Violation of Civil Rights [42
U.S.C. §1983];” (2) “Conspiracy to Violate
Civil Rights;” and (3) “False Arrest and
Imprisonment.” Id. at 5-6. On June 24, 2016, the
Individual Defendants removed the state action to this Court,
invoking federal question jurisdiction under 28 U.S.C. §
1331 and supplemental jurisdiction under 28 U.S.C. §
1367. Doc. #1. The State did not join in the
27, 2016, the Individual Defendants filed a motion to
dismiss, citing Rule 12(b)(1) of the Federal Rules of Civil
Procedure. Doc. #4; Doc. #5 at 2. On July 18, 2016, Newberry
filed a response in opposition. Doc. #7. That same day, the
State filed a motion to dismiss, also citing Rule 12(b)(1).
Doc. #9; Doc. #10 at 2. On July 25, 2016, the Individual
Defendants replied in support of their motion, Doc. #11; and,
on August 1, 2016, Newberry responded in opposition to the
State's motion, Doc. #12. The State replied in support of
its motion on August 3, 2016. Doc. #13. Newberry then filed
two unauthorized sur-replies-one on August 10, 2016, to the
Individual Defendants' motion; and another on August 18,
2016, to the State's motion. Doc. #14; Doc.
Lack of Subject Matter Jurisdiction
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.”
Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001). “Because sovereign immunity deprives
the [federal] court of jurisdiction, … claims barred
by sovereign immunity can be dismissed only under Rule
12(b)(1) and not with prejudice.” Warnock v. Pecos
Cty., 88 F.3d 341, 343 (5th Cir. 1996).
may dismiss 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.” Crane v.
Johnson, 783 F.3d 244, 251 (5th Cir. 2015) (quoting
Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011)). “[A]s a general rule a claim cannot be
dismissed for lack of subject matter jurisdiction because of
the absence of a federal cause of action.”
Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir.
May 1981). Rather,
[w]here the defendant's challenge to the court's
jurisdiction is also a challenge to the existence of a
federal cause of action, the proper course of action for the
district court … is to find that jurisdiction exists
and … force[ the defendant] to proceed under Rule
12(b)(6) … or Rule 56 … both of which place
greater restrictions on the district court's discretion.
Id. at 415. “The exceptions to this rule are
narrowly drawn, and are intended to allow jurisdictional
dismissals only in those cases where the federal claim is
clearly immaterial or insubstantial.” Id. at
Failure to State a Claim
properly stated claim must comply with Federal Rule of Civil
Procedure 8(a)(2) and the standard governing Rule 12(b)(6).
Claims subject to a non-jurisdictional immunity defense, such
as qualified or prosecutorial immunity, may be dismissed for
failure to state a claim. Moore v. Miss. Gaming
Comm'n, No. 1:15-CV-13, 2016 WL 5477673, at *3 (N.D.
Miss. Sept. 29, 2016) (citing Loupe v. O'Bannon,
824 F.3d 534, 536 (5th Cir. 2016)).
violating Rule 8(a)(2) are called “shotgun
complaints” and are “subject to dismissal under
Rule 12(b)(6).” Griffin v. HSBC Mortg. Servs.,
Inc., No. 4:14-CV-00132, 2015 WL 4041657, at *5 (N.D.
Miss. July 1, 2015). “The unifying characteristic of
all types of shotgun pleadings is that they fail … to
give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests.”
Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1323 (11th Cir. 2015).
are four types of complaints that come into conflict with
The most common type-by a long shot-is a complaint containing
multiple counts where each count adopts the allegations of
all preceding counts, causing each successive count to carry
all that came before and the last count to be a combination
of the entire complaint. The next most common type …
is a complaint that … [is] replete with conclusory,
vague, and immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun
pleading is one that commits the sin of not separating into a
different count each cause of action or claim for relief.
Fourth, and finally, there is the relatively rare sin of
asserting multiple claims against multiple defendants without
specifying which of the defendants are responsible for which
acts or omissions, or which of the defendants the claim is
Id. at 1321-23 (footnotes and citations omitted).
Rule 12(b)(6) Standard
the Rule 12(b)(6) standard, “the complaint ‘does
not need detailed factual allegations, ' but it must
provide the plaintiff's grounds for entitlement to
relief.” Taylor v. City of Shreveport, 798
F.3d 276, 279 (5th Cir. 2015) (quoting N. Cypress Med.
Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182,
191 (5th Cir. 2015)). But, because Rule 8(a)(2) requires
notice to the defendant, for a claim to survive under the
Rule 12(b)(6) standard, it must also include factual
allegations that, when assumed to be true, “raise a
right to relief above the speculative level.” In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 319 (3d
Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). In addition, a claim may also be
dismissed if a “successful affirmative defense appears
on the face of the pleadings.” U.S. ex rel. Long v.
GSDMIdea City, L.L.C., 798 F.3d 265, 274 (5th Cir.
2015). Under these standards, “a plaintiff seeking to
overcome” a defense of immunity to suit “must
plead specific facts that … allow the court to draw
the reasonable inference that … defeat[s]” the
defense. Backe v. LeBlanc, 691 F.3d 645, 648 (5th
Cir. 2012) (regarding qualified immunity). Though “the
official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in
question, ” a plaintiff nevertheless must “plead
with specificity when absolute immunity is asserted, just as
with qualified immunity.” Cole v. Carson, 802
F.3d 752, 776 (5th Cir. 2015), cert. granted and judgment
vacated sub nom. on other grounds, Hunter v.
Cole, 137 S.Ct. 497 (2016).