United States District Court, N.D. Mississippi, Oxford Division
before the Court are the following: (1) a motion to dismiss
 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  filed by Defendant Robert Sharp
("Defendant Sharp") in his individual capacity.
Upon due consideration, the Court finds that the State
Defendants' motion to dismiss  should be granted, and
Defendant Sharp's motion for judgment on the pleadings
 should be granted in part and denied in part.
Factual and Procedural Background
September 9, 2016, Plaintiff Summer Gorman ("Plaintiff)
filed a complaint  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; (b) reckless indifference to
the Decedent's serious medical needs pursuant to the
Fourth Amendment and Fourteenth Amendment against Defendant
Tunica County; (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; and (d) possibly, failure to
train/supervise pursuant to the Fourteenth Amendment against
the Mississippi Gaming Commission. 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. Plaintiff seeks actual and
punitive damages and reasonable attorney's fees.
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. The Decedent was a special agent and
firearms instructor with the Mississippi Gaming Commission
who was promoted to Director of Investigations; the Decedent was
married to Plaintiff and had two children. Defendant Sharp
is a former special agent and firearms instructor with the
Mississippi Gaming Commission.
Mississippi Gaming Commission provides training to its
personnel,  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. 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. Plaintiff
maintains that the Mississippi Gaming Commission informed the
Decedent that he was required to attend the
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. 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.
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. 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." During this training, the Decedent, whom
Defendants maintain was also a firearms instructor during the
training, acted as an aggressor to the
trainees. Plaintiff alleges that Defendant Sharp
"became agitated" with how one of the
trainees/special agents was responding to the
role-playing. 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. Emergency personnel were called to the
shooting scene. 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." The Decedent
died shortly thereafter from the gunshot wound he sustained
during the firearms training exercise.
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. 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." Plaintiff further alleges that Mr.
Clinton's report was presented to the prosecutor and
Grand Jury; the Grand Jury returned a no bill. Plaintiff
avers that shortly thereafter Mr. Clinton was "removed
from M[ississippi] B[ureau of] Investigation]
November 7, 2016, the State Defendants filed the present
motion to dismiss  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
Sharp then filed his answer  to the complaint.
Subsequently, on December 12, 2016, Defendant Sharp filed the
present motion for judgment on the pleadings  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.
December 24, 2016, Plaintiff filed a motion for limited
discovery  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  dated February 6, 2017, finding that no further
factual development appeared necessary to determine the
qualified immunity issue at the Rule 12(c) stage.
the foregoing factual and procedural background in mind, the
Court turns to the issues before it.
Analysis and Discussion
stated above, two dispositive motions are before the Court:
the State Defendants' motion to dismiss  all
official-capacity claims pursuant to Rule 12(b)(1) and
12(b)(6), and Defendant Sharp's motion for judgment on
the pleadings  on the individual-capacity claims against
Defendant Sharp pursuant to Rule 12(c). The Court examines
each motion in turn.
Motion to Dismiss - Federal Rule of Civil Procedure
12(b)(1) & (6)
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).
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).
Federal Rule of Civil Procedure 12(b)(1)
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)).
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
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).
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.
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.
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.
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.
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.
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.
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)).
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.