United States District Court, S.D. Mississippi, Northern Division
P. Jordan III UNITED STATES DISTRICT JUDGE
employment dispute is before the Court on Defendants'
separately filed motions to dismiss Plaintiff's Second
Amended Complaint (“SAC”) [36, 38] and
Plaintiff's Motion to Amend the SAC . Having
considered the parties' submissions, the Court finds that
the City of Jackson's motion to dismiss should be
granted; Defendant Lee Vance's motion to dismiss should
be denied as to the equal-protection claim but otherwise
granted; and Plaintiff's motion to amend should be
Tina Bianchini is a white former police officer with the
Jackson Police Department (“JPD”). On March 26,
2015, she was arrested and charged with domestic violence
following an altercation with fellow officer Aaron Allen.
See SAC  at 3. After being charged, Bianchini
claims JPD Chief Lee Vance forced her to resign. She says
that the decision was based on her race and sex, because
Vance retained Allen, a similarly situated African-American
by the decision, Bianchini sued Vance and the City of Jackson
on June 24, 2016. Id. In her first Complaint,
Bianchini alleged two federal-law claims under 42 U.S.C.
§ 1983 based on alleged equal-protection and
unlawful-seizure violations. Compl. [1-1] at 4-5. She also
brought state-law claims for false arrest, false
imprisonment, and malicious prosecution.
at 5-6. The City of Jackson answered that Complaint on July
26, 2016 . Since then, this case has had a hard time
leaving the starting gates due to Bianchini's efforts to
amend her complaint.
first sought leave to amend on September 26, 2016.
See Pl.'s Mot. . That motion sought to add
claims against Commander Tyree Jones regarding alleged sexual
harassment and also attempted to add claims against the
original defendants related to that conduct. Believing the
motion was unopposed, the magistrate judge granted it in a
text order the following day, clearing the way for Bianchini
to file her Amended Complaint  on September 27, 2016. But
apparently the parties were not fully in agreement, and on
October 11, 2016, Defendants moved to strike  the Amended
Complaint. They argued then-as they do now- that the Amended
Complaint would be futile for lack of specific facts
establishing supervisory or municipal liability. See
Defs.' Mot. . The magistrate judge initially struck
the amended complaint to allow additional briefing,
see Nov. 21, 2016 Order , but he eventually
granted leave to amend, see Jan. 17, 2017 Order
. Although the magistrate judge acknowledged
Defendants' futility argument, he concluded that
“the best course of action” was to allow the
amendment subject to future dispositive motions. Jan. 17,
2017 Order  at 2. Accordingly, Bianchini refiled the SAC
 on January 26, 2017. In doing so, she added
sexual-harassment claims against Jones.
the SAC was filed, the parties participated in a February 16,
2017 case-management conference and agreed to certain
deadlines. Most notably, the parties agreed to a March 20,
2017 deadline to amend the pleadings. See CMO .
Then, on February 20, 2017, before any responsive pleadings
were filed, Defendants Vance and the City of Jackson both
moved to dismiss the SAC under Federal Rule of Civil
Procedure 12(b)(6). See Defs.' Mots.[36, 38].
Bianchini responded to both motions [45, 46], and Defendants
replied [48, 49]. But to further complicate matters,
Bianchini filed a new motion  on April 13, 2017, seeking
leave to amend the SAC. Defendants responded in opposition on
April 27, 2017 , and Bianchini declined to reply.
Motions to Dismiss
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)). To overcome a Rule 12(b)(6) motion, Plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, (2009) (citing
Twombly, 550 U.S. at 556). It follows that
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). “This standard ‘simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of' the necessary claims or
elements.” In re S. Scrap Material Co., LLC,
541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly,
550 U.S. at 556). In this case, there is some overlap between
the two Defendants' motions. Accordingly, this portion of
the Order will be organized by the claims reflected in the
SAC. Where it makes sense, the arguments as to the separate
Defendants will be segregated.
claims that she was fired because she is a white woman,
whereas the City and Defendant Vance protect African-American
male officers. The Equal Protection Clause “commands
that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws, ' which is
essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This
constitutional protection “reaches only state actors,
but § 1983 equal protection claims may be brought
against individuals as well as municipalities.”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
257 (2009). Here, Bianchini asserts her claim against the
City and Vance.
state a claim of . . . discrimination under the Equal
Protection Clause and section 1983, the plaintiff ‘must
allege and prove that [she] received treatment different from
that received by similarly situated individuals and that the
unequal treatment stemmed from a discriminatory
intent.'” Bowlby v. City of Aberdeen,
Miss., 681 F.3d 215, 227 (5th Cir. 2012) (quoting
Priester v. Lowndes Cty., 354 F.3d 414, 424 (5th
says that Bianchini fails to plead a plausible claim that he
intended to discriminate based on race or sex and that he is
therefore entitled to qualified immunity. “The basic
steps of [the] qualified-immunity inquiry are well-known: a
plaintiff seeking to defeat qualified immunity must show: (1)
that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the
time of the challenged conduct.” Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011). Vance never
takes his qualified-immunity arguments past the first step,
resting instead on the contention that the SAC fails in
various ways to state plausible federal claims against him.
Accordingly, this Order is limited to that same question.
the equal-protection claim, Vance relies heavily on Yul
Chu v. Mississippi State University, where the Fifth
Circuit affirmed dismissal of an equal-protection claim under
Rule 12(b)(6). 592 F. App'x 260, 267 (5th Cir. 2014).
There, the plaintiff “merely state[d] that the
university discriminated against him and did not discriminate
against white faculty, but he fail[ed] to elaborate.”
Id. Accordingly, “[t]here [were] no factual
allegations to support that claim.” Id. Not