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Gorman v. State

United States District Court, N.D. Mississippi, Oxford Division

July 11, 2017

SUMMER GORMAN PLAINTIFF
v.
STATE OF MISSISSIPPI, MISSISSIPPI GAMING COMMISSION, TUNICA COUNTY, MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, and ROBERT SHARP DEFENDANTS

          MEMORANDUM OPINION

         Presently before the Court are the following: (1) a motion to dismiss [8] filed by Defendants State of Mississippi, Mississippi Gaming Commission, Mississippi Department of Public Safety, and Robert Sharp in his official capacity (the "State Defendants"); and (2) a motion for judgment on the pleadings [17] filed by Defendant Robert Sharp ("Defendant Sharp") in his individual capacity. Upon due consideration, the Court finds that the State Defendants' motion to dismiss [8] should be granted, and Defendant Sharp's motion for judgment on the pleadings [17] should be granted in part and denied in part.

         I. Factual and Procedural Background

         On September 9, 2016, Plaintiff Summer Gorman ("Plaintiff) filed a complaint [1] against Defendants the State of Mississippi, the Mississippi Gaming Commission, Tunica County, the Mississippi Department of Public Safety, and Sharp (collectively, "Defendants") in connection with the death of Plaintiffs husband, the Decedent John Gorman (the "Decedent"), who was tragically shot and killed during a firearms training exercise. Plaintiff asserts the following causes of action pursuant to 42 U.S.C. § 1983: (a) unreasonable seizure and excessive force pursuant to the Fourth Amendment and Fourteenth Amendment against Defendants Mississippi Gaming Commission and Sharp in his official and individual capacity;[1] (b) reckless indifference to the Decedent's serious medical needs pursuant to the Fourth Amendment and Fourteenth Amendment against Defendant Tunica County;[2] (c) violation of due process on a state-created danger theory pursuant to the Second Amendment and Fourteenth Amendment against Defendants Mississippi Gaming Commission, Mississippi Department of Public Safety, and Sharp in his official and individual capacity;[3] and (d) possibly, failure to train/supervise pursuant to the Fourteenth Amendment against the Mississippi Gaming Commission.[4] Plaintiffs complaint further provides that she urges the following state law claims against Defendants, though there are no specific allegations pled in the complaint as such: (a) assault and battery, (b) negligence, and (c) wrongful death.[5] Plaintiff seeks actual and punitive damages and reasonable attorney's fees.

         The Mississippi Gaming Commission is a state agency and entity that operates under the Gaming Control Act, Mississippi Code § 75-76-1 to -313, and maintains offices throughout the State of Mississippi including Jackson, Tunica, and Biloxi.[6] The Decedent was a special agent and firearms instructor with the Mississippi Gaming Commission who was promoted to Director of Investigations;[7] the Decedent was married to Plaintiff and had two children.[8] Defendant Sharp is a former special agent and firearms instructor with the Mississippi Gaming Commission.[9]

         The Mississippi Gaming Commission provides training to its personnel, [10] including firearms training, which Plaintiff alleges is mandatory by the State of Mississippi and the Mississippi Gaming Commission for special agents and occurs at least on a quarterly basis.[11] Plaintiff alleges that Defendant Sharp, firearms instructor of the Mississippi Gaming Commission, and R.R. "Sonny" Dyer, chief firearms inspector of the Mississippi Gaming Commission, scheduled a two-day training session on January 20-21, 2015 at the Tunica County Firing and Qualification Range for Certified Law Enforcement Agents; Plaintiff further alleges that Defendant Sharp was assigned to be the lead firearms instructor in charge of the training.[12] Plaintiff maintains that the Mississippi Gaming Commission informed the Decedent that he was required to attend the training.[13]

         On January 20, 2015, firearms training was conducted at the Tunica County Firing and Qualification Range for Certified Law Enforcement Agents; no known incidents were reported that day.[14] However, Plaintiff alleges that Defendant Sharp made the decision to conduct the firearms training on January 21, 2015 at another site not designated as a firearms range.[15]

         The training exercise required that the trainees draw "dummy" guns, not actual firearms, from their holsters and pretend to fire the dummy guns at role-playing aggressors.[16] However, Plaintiff alleges that Defendant Sharp "did NOT remove his loaded real firearm after everyone else involved did, " that is, "[Defendant] Sharp participated in a training exercise requiring that firearms be drawn from holsters and fired at role-players, however kept his real firearm in his holster."[17] During this training, the Decedent, whom Defendants maintain was also a firearms instructor during the training, acted as an aggressor to the trainees.[18] Plaintiff alleges that Defendant Sharp "became agitated" with how one of the trainees/special agents was responding to the role-playing.[19] In demonstrating to the trainee/special agent how to properly perform the exercise, Defendant Sharp pulled his real firearm and shot the Decedent in the chest.[20] Emergency personnel were called to the shooting scene.[21] Plaintiff alleges that the emergency personnel were under the direction of Defendant Tunica County and that "[d]espite hospitals and a trauma center (The Med in Memphis) being located in 'very' close proximity, a command decision was made to NOT transport [the Decedent] to a hospital or trauma center."[22] The Decedent died shortly thereafter from the gunshot wound he sustained during the firearms training exercise.[23]

         The Mississippi Bureau of Investigation was tasked with conducting an investigation of the shooting; Captain Peter Clinton was the investigator who conducted the investigation and prepared the investigative report.[24] Plaintiff alleges that Mr. Clinton's report was "slanted" and "opinionated, " "[i]nstead of a purely factual report, " and stated that Defendant Sharp "was '[e]xtremely [n]egligenf in his actions."[25] Plaintiff further alleges that Mr. Clinton's report was presented to the prosecutor and Grand Jury; the Grand Jury returned a no bill.[26] Plaintiff avers that shortly thereafter Mr. Clinton was "removed from M[ississippi] B[ureau of] Investigation] employment."[27]

         On November 7, 2016, the State Defendants filed the present motion to dismiss [8] pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff subsequently filed a response, and the State Defendants filed a reply.

         Defendant Sharp then filed his answer [10] to the complaint. Subsequently, on December 12, 2016, Defendant Sharp filed the present motion for judgment on the pleadings [17] pursuant to Rule 12(c) of the Federal Rules of Civil Procedure concerning the individual-capacity claims asserted against him. Plaintiff filed a response to the motion, and Defendant Sharp filed a reply.

         On December 24, 2016, Plaintiff filed a motion for limited discovery [19] and to stay any ruling on Defendant Sharp's motion for judgment on the pleadings pertaining to qualified immunity. Defendant Sharp filed a response, and Plaintiff filed a reply. The Court denied that motion in an Order [22] dated February 6, 2017, finding that no further factual development appeared necessary to determine the qualified immunity issue at the Rule 12(c) stage.

         With the foregoing factual and procedural background in mind, the Court turns to the issues before it.

         II. Analysis and Discussion

         As stated above, two dispositive motions are before the Court: the State Defendants' motion to dismiss [8] all official-capacity claims pursuant to Rule 12(b)(1) and 12(b)(6), and Defendant Sharp's motion for judgment on the pleadings [17] on the individual-capacity claims against Defendant Sharp pursuant to Rule 12(c). The Court examines each motion in turn.

         A. Motion to Dismiss - Federal Rule of Civil Procedure 12(b)(1) & (6)

         The Court first examines the State Defendants' motion to dismiss all official-capacity claims due to Eleventh Amendment immunity pursuant to Rule 12(b)(1), and due to the State Defendants not being persons for Section 1983 purposes pursuant to Rule 12(b)(6).

         "When a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6) motion, . . . courts must consider the jurisdictional challenge first." McCasland v. City of Castroville, Tex., 478 F.App'x 860, 860 (5th Cir. 2012) (per curiam) (citing Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This " 'prevents a court without jurisdiction from prematurely dismissing a case with prejudice.' " Id. at 860-61 (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)); accord Hitt v. City of Pasadena, Tex., 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).

         1. Federal Rule of Civil Procedure 12(b)(1)

         A Rule 12(b)(1) motion allows a party to challenge the Court's subject matter jurisdiction. " '[A] factual attack under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.' " Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit. Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)).

         The Fifth Circuit has instructed:

A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. In considering a challenge to subject matter jurisdiction, the district court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. Thus, under Rule 12(b)(1), the district court can resolve disputed issues of fact to the extent necessary to determine jurisdiction[.]

Smith v. Reg'l Transit Autk, 756 F.3d 340, 347 (5th Cir. 2014) (quotation marks and citation omitted). In ruling on a Rule 12(b)(1) motion to dismiss, the Court can consider: "(1)me 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." Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016) (internal quotation marks and citation omitted).

         Pursuant to Rule 12(b)(1), the State Defendants argue that the Eleventh Amendment bars suit on all claims against the State Defendants. However, Plaintiff argues in response that the Court should defer ruling on the motion to dismiss until discovery is conducted.

         The law is well established that discovery is not necessary prior to a ruling on Eleventh Amendment immunity, as "[t]he Eleventh Amendment provides not merely a defense to liability but an absolute immunity from suit." Fontenot v. Texas, 44 F.3d 1004, 1994 WL 733504, at *3 n.3 (5th Cir. 1994) (citing Puerto Rico Aqueduct & Sewer Autk v. Metcalf & Eddy, Inc., 506 U.S. 139, 145-46, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)). Therefore, the Court finds it appropriate and necessary to address and rule on the Eleventh Amendment issue prior to discovery.

         "The Eleventh Amendment strips courts of jurisdiction over claims against a state that has not consented to suit." Pierce v. Hearn Indep. Sch. Dist., 600 F.App'x 194, 197 (5th Cir. 2015) (per curiam) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Sovereign immunity is a broad jurisdictional doctrine prohibiting suit against the government absent the government's consent. Sovereign immunity was assumed at common law, brought from England to the colonies, and existed prior to the ratification of the United States Constitution. Although the term "sovereign immunity" nowhere appears in the Constitution, the concept was perhaps woven into the very fabric of the document. Andrew Hamilton explained:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.

         The Federalist No. 81, at 511 (Alexander Hamilton) (Wright ed., 1961). At the Virginia ratifying convention, James Madison stated: "Jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of any individuals to call any state into court." 3 Debates on the Federal Constitution 533 (J. Elliot 2d ed., 1854). At that same convention, John Marshall stated: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a state will be called at the bar of the federal court." 3 id, at 555.

         Despite the long-standing principle of sovereign immunity, in 1793, the United States Supreme Court held that a state could be sued by a citizen of another state or a foreign country. See Chisolm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). But five years later, the states ratified the Eleventh Amendment, which provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const, amend. XI; see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 64-75 (1972). The Fifth Circuit has stated: "Eleventh Amendment immunity operates like a jurisdictional bar, depriving federal courts of the power to adjudicate suits against a state." Union Pac. R. Co. v. La. Pub. Serv. Comm'n, 662 F.3d 336, 340 (5th Cir. 2011) (internal citations omitted). "The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, and by its own citizens as well." Lapides v. Bd. of Regents, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (citation omitted). Indeed, "[t]he amendment has been judicially construed to bar federal jurisdiction over suits brought against a state by its own citizens, despite the absence of language to that effect." See Jagnandan v. Giles, 538 F.2d 1166, 1177 (5th Cir.), cert, denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977) (citations omitted). Both federal and pendent state law claims are barred from being asserted against a state in federal court. Pennhurst State Sch. & Hosp., 465 U.S. at 119-21, 104 S.Ct. 900.

         State immunity "extends to any state agency or entity deemed an 'alter ego' or 'arm' of the state." Perez v. Region 20 Educ. Serv. Or., 307 F.3d 318, 326 (5th Cir. 2002). "This immunity also extends to state officials who are sued in their official capacities because such a suit is actually one against the state itself." New Orleans Towing Ass 'n, Inc. v. Foster, 248 F.3d 1143, 2001 WL 185033, at *3 (5th Cir. Feb. 6, 2001); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)); Pennhurst, 465 U.S. at 117, 104 S.Ct. 900.

         Based on the foregoing, in the case subjudice, the claims against the State of Mississippi are barred by Eleventh Amendment immunity. Furthermore, as this Court has held previously and as the State Defendants in the case subjudice correctly argue, the Mississippi Department of Public Safety is an arm of the State of Mississippi. See Hawn v. Hughes, No. 1:13-CV-00036-GHD, 2014 WL 4418050, at *1 (N.D. Miss. Sept. 8, 2014). See also Delaney v. Miss. Dep't of Pub. Safety, No. 3:12cv229, 2013 WL 286365, at *3 (S.D.Miss. Jan. 24, 2013), affd, 554 F.App'x 479 (5th Cir. 2014) (per curiam); Johnson v. Miss. Dep't of Pub. Safety, No. 1:14CV062-SA-DAS, 2015 WL 5313563, at *2 (N.D. Miss. Sept. 11, 2015); Meaux v. Mississippi, No. 1:14CV323-KS-RHW, 2015 WL 3549579, at *3 (S.D.Miss. June 8, 2015). Also, as correctly argued by the State Defendants and supported by case law, the Mississippi Gaming Commission is an arm of the State of Mississippi. See Moore v. Miss. Gaming Comm'n, No. L15-CV-13-DMB-DAS, 2016 WL 5477673, at *5-*9 (N.D. Miss. Sept. 29, 2016); see also Miss. Harrah's Vicksburg Corp. v. Pennebaker, 812 So.2d 163, 165 (Miss. 2001) (discussing creation of the Mississippi Gaming Commission as a state agency and its purpose). Finally, as correctly argued by the State Defendants, the claims against Defendant Sharp in his official capacity are similarly barred as claims against the State of Mississippi itself. See Fox v. Mississippi, 551 F.App'x 772, 774-75 (5th Cir. 2014) (per curiam) (quoting K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (citations omitted)).

         There are three possible exceptions to Eleventh Amendment immunity: (i) valid abrogation by Congress; (ii) waiver or consent to suit by the state; or (iii) the state's amenability to suit under the Ex parte Young doctrine. The Court examines each possible exception below.

         (i) ...


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