United States District Court, S.D. Mississippi, Northern Division
CHAKAKHAN R. DAVIS PLAINTIFF
HINDS COUNTY, MISSISSIPPI, SGT. BOBBY MELSON, DEPUTY CHRIS MADDOX, OFFICER BRENDA JONES, AND TYRONE LEWIS DEFENDANTS
P. JORDAN III UNITED STATES DISTRICT JUDGE
pro se civil-rights action is before the Court on
Plaintiff's Motion to Strike Answer ; Defendants'
Motion for Judgment on the Pleadings on State Law Claims ;
and Defendants' Motion for Judgment on the Pleadings as
to Federal Claims . 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.
Facts and Procedural History
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).
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.
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
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 . 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.
Defendants filed their Answer , Davis moved to strike it
. Defendants responded, but Davis failed to reply.
Thereafter, Hinds County, Jones, and Lewis docketed a Motion
to Dismiss  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 ,
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  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.
Motion to Strike
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)).
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).
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.  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)).
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.
Motion for Judgment on the Pleadings: Federal-Law Claims
Against Lewis and Jones
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.
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
Service of Process
Whether Lewis and Jones Waived Service of Process
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  at 2.
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. 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.
Whether Davis Served Lewis and Jones
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.  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.
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
Opportunity to Cure
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.  at 5.
Second, they say the claims themselves are meritless and
subject to dismissal under Rule 12(c).
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
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  (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  seeks dismissal based on futility,
Defendants did not explore whether dismissal should be with
prejudice. On this ...