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Bracey v. City of Jackson

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

August 3, 2017

KIMBERLY V. BRACEY PLAINTIFF
v.
CITY OF JACKSON, MISSISSIPPI, et al. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III UNITED STATES DISTRICT JUDGE

         This 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 [57]. For the reasons that follow, the motion is denied.

         I. Facts and Procedural History

         On 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 sex-discrimination, sexual-harassment, 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.

         On October 24, 2016, Yarber, in his individual capacity, filed his Answer [9]. 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.

         II. Standard

         In 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.'”[1] 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).

         Finally, 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).

         The Court will exercise that discretion here by ignoring Yarber's five-page description of Bracey's discovery responses. See Def.'s Mem. [58] 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.

         III. Analysis

         Yarber 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 turn.

         A. Qualified Immunity

         Yarber 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.

         That 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 ...


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