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Matory v. Hinds County Sheriff Victor Mason

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

June 19, 2017

CHERYL MATORY AND TOMECA BARNES PLAINTIFFS
v.
HINDS COUNTY SHERIFF VICTOR MASON, IN HIS INDIVIDUAL CAPACITY, AND HINDS COUNTY, MISSISSIPPI DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TOM S. LEE UNITED STATES DISTRICT JUDGE

         Defendant Sheriff Victor Mason has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to the First Amendment retaliation claim asserted against him in this cause by plaintiffs Cheryl Matory and Tomeca Barnes. The court, having considered the motion, along with plaintiffs' purported “Rule 7 Reply”, concludes that Mason's motion is well taken and should be granted.

         Preliminary Matters

         Mason filed his motion for judgment on the pleadings on April 11, 2017 raising a qualified immunity defense as to plaintiffs' First Amendment retaliation claim. Plaintiffs did not respond to the motion. On May 2, 2017, this court entered an order directing plaintiffs to file a Rule 7 reply in accordance with Shultea v. Wood, 47 F.3d 1427 (5th Cir. 1995). Plaintiffs did not file a Rule 7 reply. Instead, they filed a “Memorandum in Support of Plaintiff's Opposition to Victor Mason's Motion for Judgment on the Pleadings, ” notwithstanding that the court specifically stated in its order that, having failed to timely respond to the motion for judgment on the pleadings, plaintiffs would not be given an opportunity to file a late response to that motion. Sheriff Mason promptly moved to strike plaintiffs' response, as it was both untimely and in violation of the court's order. Plaintiffs did not respond to the motion to strike. Instead, nearly a week after that response was due, plaintiffs presented to the court a “Rule 7 Reply/Motion to File Second Amended Complaint Outside of Time”, asking for permission to file their “Rule 7 Reply/Second Amended Complaint” out of time to address the deficiencies raised by Mason in his motion for judgment on the pleadings.[1] The court would be warranted in refusing to accept this submission as a Rule 7 reply, since the court directed that plaintiffs' Rule 7 reply be filed by May 12 and this was not done. Ultimately, though, it makes no difference whether or not the court accepts plaintiffs' Rule 7 reply out of time since plaintiffs' submission adds nothing of material substance to the allegations of the complaint.[2]Therefore, the court will allow plaintiffs to file their Rule 7 reply out of time.[3] However, the court will deny plaintiffs' motion to file this as an amended complaint since their proposed amendment clearly does not state a cognizable First Amendment retaliation claim. See Horton Archery, LLC v. Farris Bros., No. 2:13-CV-260-KS-MTP, 2014 WL 1239382, at *1 (S.D.Miss. Mar. 26, 2014) (an amendment “may be denied ‘where the proposed amendment would be futile because it could not survive a motion to dismiss.'”) (quoting Rio Grande Royalty Co ., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010)).

         Plaintiffs' Complaint

         According to the allegations of the complaint, in 2015, in anticipation of being elected sheriff of Hinds County, defendant Mason asked Matory, then a corporal and crime scene investigator with the Jackson Police Department (JPD), to help him recruit employees for the Sheriff's Department; he said he would hire her as his undersheriff if he was elected. Mason was particularly interested in hiring Tomeca Barnes, and told Matory to ask Barnes, also a corporal with JPD, to help with his election campaign. He promised Barnes he would name her head supervisor of the Internal Affairs Division (IAD) if he was elected.

         Matory alleges that throughout the election campaign, Mason repeatedly texted her about Tomeca Barnes, asking where Barnes was and whether Matory had talked with her. On one occasion, he texted Matory a photo of Barnes in her honor guard uniform. This texting about Barnes continued after Mason was elected sheriff in August 2015. Mason sent Matory texts asking where Barnes was, stating he was thinking about Barnes, and at times he just texted Barnes' name or her initials. In September 2015, shortly after the election, Mason asked Matory, “Will she (Barnes) give me some?” When Matory responded, “I don't know. What Doing?” he responded, “If she doesn't you won't get hired. Take a guess.” Matory replied, “Well that's not my fault can't tell grown folks what to do with personal life.”

         In November 2015, prior to being sworn in as sheriff, Mason asked Barnes for her number and began texting her directly and often, sometimes just saying hello, or encouraging her to “call me or text me anytime you feel you need to.” On one occasion, he sent her a photo of a Hinds County Sheriff's Department badge to show what her badge would look like. On another, he told her that her monthly salary would be $4720.15 but asked, “Would it bother you if I moved you up?” When she asked why he would do that, he responded, “Why shouldn't I. ... I have my reasons.”

         In January 2016, after he was sworn in as sheriff, Mason hired Matory as undersheriff and Barnes as head supervisor of the Department's IAD. Mason began asking Matory to have Barnes come to his office; after Barnes would arrive, he would direct Matory to leave and close the door. As Barnes would make her reports to Mason, she would notice him just staring at her, which made her uncomfortable. When she was away on military drills, he asked for pictures of her in her military gear, which she provided. In response to one, he wrote, “Nice!!!!!” and “Oh wow look at you. Awesome. Anymore?”

         According to the complaint, Barnes began to spurn Mason's unwanted advances toward her. She was uncomfortable being left alone with him. She told Matory she was uncomfortable with him and asked Mason if Matory could remain in his office when she briefed him. When Mason told Matory that she better make sure that Barnes came to his office “or else”, Matory asked what he meant by “or else”. He told her, “you think I'm playing. I'll show you.” Matory responded that she was not going to arrange for him to have sex with Barnes. Mason became angry and began to distance himself from Matory and Barnes. The complaint recites that before he distanced himself from Matory, Mason asked her what would she do if she came to his office and it smelled like “ass.” Matory responded, saying “Are we still dealing with that, we have work to do.” Matory asked Mason not to involve her in his plans for Barnes and to stop directing her to tell Barnes that he was interested in having sex with her.

         Matory also alleges that in the spring of 2016, Mason kept telling her he was going to make her kiss an employee nicknamed “Lips.” And he began saying, “Everyone loves dick.” When Matory asked him why he was using derogatory language, he said he was referring to Captain Richard Brown. When Matory asked him to stop, Mason told her it was not unprofessional and it was true that “Everybody loves dick.”

         Plaintiffs allege that soon after Barnes distanced herself from Mason, he demoted both of them. He replaced Mason with Pete Luke, a white male, and he replaced Barnes with Keith Barnett, a black male. Several months later - and apparently after Matory filed a charge of discrimination with the EEOC and received a notice of right to sue - Matory was terminated. And although Barnes continues to be employed by the Sheriff's Department, she claims she is treated less favorably than other employees.

         Based on these allegations, plaintiffs have brought the present action against Hinds County and Sheriff Mason, individually, alleging claims of sex discrimination/harassment, race discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 and § 1983. Mason, asserting qualified immunity, has moved for judgment on the pleadings as to plaintiffs' First Amendment retaliation claims under § 1983, contending they have failed to plead facts which identify what “speech” they contend resulted in Sheriff Mason's retaliating against them, or to provide any substantive allegations sufficient to establish that such speech involved a matter of public concern and/or that it outweighed Sheriff Mason's interest in promoting efficiency of the Sheriff's Department.

         Qualified ...


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