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Davis v. Hinds County

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

May 23, 2017




         This pro se civil-rights action is before the Court on Plaintiff's Motion to Strike Answer [4]; Defendants' Motion for Judgment on the Pleadings on State Law Claims [7]; and Defendants' Motion for Judgment on the Pleadings as to Federal Claims [9]. For the reasons that follow, the motion to strike is denied, the motion on the state-law claims is granted in part, and the motion on the federal-law claims is granted.

         I. Facts and Procedural History

         This case arises out of the arrest and subsequent detention of Plaintiff Chakakhan R. Davis. The Court gathered the following allegations from her Complaint [1-2] and takes them as true under Federal Rule of Civil Procedure 12(c).

         On May 26, 2015, Sergeant Bobby Melson responded to an emergency call from Davis's mother, who was under her daughter's care. Upon arrival, Melson informed Davis that additional deputies were on their way and that she would be brought to jail if she had nowhere to go. Once Deputy Chris Maddox and another unknown deputy joined Melson, the officers arrested Davis for resisting arrest and disturbance of family. During this time, Davis says the deputies “physically attacked her on top of huge metal and sharp ten [sic] pieces to the ground.” Compl. [1-2] at 6. The unknown deputy then intentionally handcuffed her too tightly, and Maddox ignored her complaint about her handcuffed wrists.

         Upon her arrival at the county jail, Davis was searched by an unknown female guard while a male staff member was present. She was then taken to the fingerprinting room, where an unknown female guard attempted to force Davis to walk despite knowing that her legs were hurt too badly to do so. The women were then joined by Defendant Brenda Jones, who dragged Davis “vigorously” by the arm to her cell, “piercing” her nails into Davis's arm. Id. at 17. When Davis was later brought back to the fingerprinting room, an unknown female guard intentionally “jerked and snatched” Davis's fingers and sprayed pepper spray. Id. Davis was eventually released on May 29, 2015, and her charges were later dismissed.

         On August 2, 2016, Davis filed a state-court suit against Hinds County, Mississippi, Melson, Maddox, Jones, and Tyrone Lewis. Hinds County then removed the action to this Court. Notice of Removal [1]. Davis's Complaint [1-2] alleges federal-law claims for excessive force, illegal search and seizure, cruel and unusual punishment, denial of due process, and reckless training and supervision. She also brings state-law claims for excessive force, false arrest, false imprisonment, abuse of process, malicious prosecution, and cruel and unusual punishment. She seeks $1.9 million in compensatory damages, as well as punitive damages.

         After Defendants filed their Answer [3], Davis moved to strike it [4]. Defendants responded, but Davis failed to reply. Thereafter, Hinds County, Jones, and Lewis docketed a Motion to Dismiss [7] Davis's state-law claims under Federal Rule of Civil Procedure 12(c). A few minutes later, Defendant Jones and Lewis docketed a separate Motion to dismiss [9], seeking dismissal of the federal claims asserted against them in their individual capacities for failure to perfect service of process under Rule 12(b)(5) and judgment on the pleadings under Rule 12(c). After the parties briefed these initial motions, the Court docketed an Order [23] seeking additional briefing on whether Defendants waived their Rule 12(b)(5) defense under Rule 12, subsections (g) and (h). The Court also asked whether it had jurisdiction to consider the merits of the Rule 12(c) motions as to Lewis and Jones, assuming they did not waive, and were entitled to, relief under Rule 12(b)(5). Both parties submitted their responses, and the Court is now prepared to rule.[1]

         II. Analysis

         A. Motion to Strike

         Davis moves to strike Defendants' answer as “clearly frivolous” under Federal Rule of Civil Procedure 12(f). But “[t]he action of striking a pleading should be sparingly used by the courts [and] should be granted only when the pleading to be stricken has no possible relation to the controversy.” Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)). Further, a motion to strike “generally should not be granted absent a showing of prejudice to the moving party.” Conn v. United States, No. 3:10cv300-CWR, 2011 WL 2117969, at *5 (S.D.Miss. May 27, 2011); accord Bailey Lumber & Supply Co. v. Ga.-Pac. Corp., No. 1:08cv1394-LG-JMR, 2010 WL 1141133, at *5 (S.D.Miss. Mar. 19, 2010) (“Portions of a complaint generally will not be stricken unless ‘the allegations are prejudicial to the defendant or immaterial to the lawsuit.'”) (quoting Veazie v. S. Greyhound Lines, 374 F.Supp. 811, 815 (E.D. La. 1974)).

         Davis failed to reply to Defendants' arguments against her motion. And having reviewed the challenged pleading, the Court finds that Defendants' answer as a whole should not be stricken. It is neither immaterial nor prejudicial to Davis. No aspect of Defendants' answer justifies relief under Rule 12(f).

         In the alternative, Davis seeks to strike the affirmative defenses listed in Defendants' answer because “they can under no set of facts or circumstances succeed.” Pl.'s Mem. [4] at 5. Federal Rule of Civil Procedure 12(f) permits the Court to strike a defense if “the defense asserted is insufficient as a matter of law.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). But “[m]otions to strike defenses are generally disfavored and rarely granted.” Bertoniere v. First Mark Homes, Inc., No. 2:09cv156-DCB-MTP, 2010 WL 729931, at *1 (S.D.Miss. Feb. 25, 2010) (citing United States v. Benavides, No. B-07-108, 2008 WL 362682, at *2 (S.D. Tex. Feb. 8, 2008)). “Even when addressing a pure question of legal sufficiency courts are ‘very reluctant' to determine such issues on a motion to strike, preferring to determine them ‘only after further development by way of discovery and a hearing on the merits, either on summary judgment motion or at trial.'” Veranda Assocs., L.P. v. Hooper, No. H-11-4206, 2012 WL 602143, at *3 (S.D. Tex. Feb. 23, 2012) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1381 (3d ed. 2004)).

         In their answer, Defendants offer eleven defenses. And the Court has no reservations denying the motion as to each of them. As discussed later, some of the defenses have prevailed in Defendants' motions to dismiss. As to the others, they are proper at this stage, not because they will ultimately prove true but because it is too early to tell. Davis fails to show that any of the defenses are insufficient as a matter of law, choosing instead to focus her actual argument on the specificity with which Defendants pleaded them. But Defendants have simply preserved these defenses in an answer. Davis's motion to strike is denied.

         B. Motion for Judgment on the Pleadings: Federal-Law Claims Against Lewis and Jones

         Davis asserts five federal claims in this case-excessive force, illegal search and seizure, cruel and unusual punishment, deprivation of due process, and reckless training/supervision. Compl. [1-2] at 7-8. Frankly, the Court struggled to determine which claims are asserted against which Defendants. The Court will address this issue as it arises, but generally, Defendants Tyrone Lewis and Brenda Jones now move for dismissal of all federal claims asserted against them in their individual capacities. They base this request on two grounds-ineffective service of process and failure to state a claim.

         These arguments present a slightly odd procedural posture. So for clarity, the Court summarizes this portion of the Order as follows. Defendants Lewis and Jones contend that Davis failed to perfect service of process and therefore seek dismissal under Rule 12(b)(5). The Court finds that Defendants did not waive that defense and further agrees that Davis has not established proper service. This threshold finding precludes a separate ruling on the merits under Rule 12(c) as to the individual-capacity claims against Lewis and Jones. So the question becomes whether to quash service with leave to cure or to dismiss those Defendants either with or without prejudice. On this issue, the Court finds that many of Davis's claims against these Defendants are futile and that dismissal without prejudice is warranted as to those claims. Davis will, however, be given an opportunity to seek amendment as to some of her claims, and if she makes a valid argument for amendment, then she will be given an opportunity to attempt proper service on Defendants Lewis and Jones as to those claims.

         1. Service of Process

         a. Whether Lewis and Jones Waived Service of Process

         Lewis and Jones initially filed a Rule 12(c) motion seeking dismissal of the state-law claims on September 22, 2016, at 3:19 p.m. Two minutes later, at 3:21 p.m., Lewis and Jones filed a separate motion seeking dismissal under Rule 12(b)(5) of all claims asserted against them in their individual capacities, and alternatively, dismissal under Rule 12(c) of all federal claims. The timing of the motions led the Court to question whether Defendants joined their motion asserting a Rule 12(b)(5) defense with their earlier-filed Rule 12(c) motion as subsections (g) and (h) require. If they did not, the Court must then ask whether they waived the Rule 12(b)(5) defense. Out of caution, the Court sought additional briefing on waiver while informing the parties that “any extraneous issues w[ould] be ignored.” Order [23] at 2.

         Despite these directives, Davis addressed neither subsection (g) nor (h) of Rule 12 and instead raised a number of arguments that exceeded the scope of the Court's Order. Those new matters will not be considered.[2] And having now reviewed her original and supplemental briefing, it is apparent that Davis has not relied upon subsection (g) or (h). Accordingly, the Court will not further consider the issue.[3]

         b. Whether Davis Served Lewis and Jones

         Lewis and Jones say that Davis failed to properly serve them under Federal Rule of Civil Procedure 4, requiring dismissal under Rule 12(b)(5). According to the state-court record, Claire Barker, in-house counsel for the Hinds County Sheriff's Office, was served on August 3, 2016. State Ct. R. [1-2] at 61 (Barker Service). But Lewis and Jones contend that Barker was not authorized to accept process on their behalf. Defs.' Mem. [10] at 5. And the Proof of Service only summarizes that Lewis and Jones were served “via their designated representative at the assigned location.” Id. at 58 (Proof of Service). This alone is not enough to determine sufficiency of process.

         In her response, Davis explains that Lewis and Jones were served with process “through in house counsel” in another action with a “virtually identical complaint.” But defects in service of process are waivable. Fed.R.Civ.P. 12(h)(1). So service in another case is immaterial. Moreover, serving an attorney is proper only when the attorney has actual authority to accept it. Maiz v. Virani, 311 F.3d 334, 340 (5th Cir. 2002). Davis fails to carry her burden on this point. See Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981) (“When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity.”). Davis failed to perfect service on Lewis and Jones.

         c. Opportunity to Cure

         The next question is whether Davis should be given an opportunity to cure, something she seeks in her responses. “The general rule is that when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.” Gregory v. U.S./U.S. Bankr. Court for Dist. of Colorado, 942 F.2d 1498, 1500-01 (10th Cir. 1991) (citation and quotation marks omitted). But when service would be futile, dismissal is appropriate. Id. Here, Defendants assert futility on two grounds. First, they say the time for service under Federal Rule of Civil Procedure 4(m) has passed. Def.'s Resp. [27] at 5. Second, they say the claims themselves are meritless and subject to dismissal under Rule 12(c).

         These alternative arguments raise a question whether dismissal-if otherwise warranted-should be with or without prejudice. To the extent Defendants rely on Rule 4(m), dismissal would generally be without prejudice. Rule 4(m) states in relevant part that, “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m) (emphasis added); see also Coleman v. Gillespie, 424 F. App'x 267, 270 (5th Cir. 2011) (modifying dismissal based on Rules 4(m) and 41(b) to be without prejudice).

         Less clear is whether a court can dismiss a case with prejudice under Rule 12(b)(5) for want of service, when the complaint otherwise fails to state a claim. This Court previously expressed concern that it would lack jurisdiction to address the merits under Rule 12(c) if services was never perfected. See Order [23] (citing Attwell v. LaSalle Nat. Bank, 607 F.2d 1157, 1159 (5th Cir. 1979) (“It is axiomatic that in order for there to be in personam jurisdiction there must be valid service of process.”)). And in Coleman v. Gillespie, the Fifth Circuit stated, “Because these defendants were never before the court, the dismissal should be without prejudice.” 424 F. App'x at 270. But see Gregory, 942 F.2d at 1500-01 (affirming dismissal with prejudice under Rule 12(b)(5) where complaint was futile under Rule 12(b)(6)). The Coleman decision was ultimately based on Rules 4(m) and 41(b), but it still gives the Court pause. And while Defendants' response to the Court's Order [23] seeks dismissal based on futility, Defendants did not explore whether dismissal should be with prejudice. On this ...

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