United States District Court, S.D. Mississippi, Northern Division
KIMBERLY V. BRACEY PLAINTIFF
CITY OF JACKSON, MISSISSIPPI, et al. DEFENDANTS
P. JORDAN III UNITED STATES DISTRICT JUDGE
employment-discrimination case is before the Court on
Defendant Tony Yarber's Motion to Dismiss for Failure to
State a Claim upon which Relief can be Granted and for
Qualified Immunity . For the reasons that follow, the
motion is denied.
Facts and Procedural History
August 25, 2016, Plaintiff Kimberly V. Bracey filed this
lawsuit against the City of Jackson and then Mayor Tony
Yarber, individually and in his official capacity, asserting
hostile-work-environment, and retaliation claims under Title
VII and 42 U.S.C. § 1983. Bracey filed her Amended
Complaint four days later on August 29, 2016. In general
terms, Bracey claims Yarber mistreated her while she was
employed by the City of Jackson from April 2014 through April
2015 and then terminated her employment for refusing the
mayor's sexual advances.
October 24, 2016, Yarber, in his individual capacity, filed
his Answer . Yarber has now moved, in his individual
capacity, for dismissal, citing Federal Rule of Civil
Procedure 12(b)(6). Bracey responded in opposition; Yarber
failed to file a reply, and the time to do so under Local
Rules has now expired. The Court has personal and
subject-matter jurisdiction and is prepared to rule.
considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the
plaintiff.'” Martin K. Eby Constr. Co. v. Dall.
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (per curiam)). But “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
the Court's review under Rule 12 is not unlimited.
Generally speaking, a “court's review is limited to
the complaint, any documents attached to the complaint, and
any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.”
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010). “If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). The decision to exclude such
materials falls within the district court's
“complete discretion.” Isquith ex rel.
Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 194 n.3
(5th Cir. 1988) (citation omitted).
Court will exercise that discretion here by ignoring
Yarber's five-page description of Bracey's discovery
responses. See Def.'s Mem.  at 2-7. Even if
the Court were inclined to consider those statements under
Rule 56, Yarber failed to support them with cited record
evidence, so they would be ignored anyway under subsections
(c)(1)(A) and (e) of Federal Rule of Civil Procedure 56.
Regardless, the Court declines to accept the apparent
invitation to convert this motion under Rule 12(d), so review
will be limited to the Amended Complaint.
raises several arguments, some of which appear only in his
motion. First, he says he is entitled to qualified immunity
on Bracey's claims against him in his individual
capacity. Second, relying on Bracey's discovery
responses, he challenges her § 1983 claims. Third, he
argues that he cannot be liable on Bracey's termination
claim because he did not terminate her employment. Fourth, he
says that he is immune from suit as to the official-capacity
claims. Fifth, he claims MTCA immunity. Sixth, he contends
that he cannot be held liable for violations of the
Electronic Communications Privacy Act and the Storage
Communications Act. Seventh, he references section 15-1-3 of
the Mississippi Code, apparently asserting a
statute-of-limitations defense. Finally, he contends that
punitive damages cannot be assessed against him as a
government actor. The Court will address each argument in
says he is entitled to qualified immunity on Bracey's
claims against him in his individual capacity. As Bracey
points out, however, qualified immunity “is an
affirmative defense that must be pleaded by a defendant
official.” Harlow v. Fitzgerald, 457 U.S. 800,
815 (1982). And here, Yarber did not affirmatively plead the
defense in his answer.
omission may not be fatal to this defense, because
“[a]n affirmative defense is not waived if the
defendant ‘raised the issue at a pragmatically
sufficient time, and [the plaintiff] was not prejudiced in
[her] ability to respond.” Allied Chem. Corp. v.
Mackay, 695 F.2d 854, 856 (5th Cir. 1983). The problem
is that Yarber has neither moved to amend his answer nor
argued that this exception to the waiver rule applies to him.
As noted, Yarber failed to file a reply in support of his
motion to dismiss and therefore has never addressed
Bracey's waiver argument. Absent any argument from
Yarber, his ...