United States District Court, N.D. Mississippi, Aberdeen Division
RICKY MARTIN, Natural Father and Wrongful Death Beneficiary PLAINTIFF
CANYON BOYKIN, JOHNNY BRANCH, YOLANDA YOUNG, and GARRETT MITTAN, Individually and in Their Official Capacities as Officers of the Columbus Police Department; TONY CARLETON, Individually and in His Official Capacity as the Chief of Police of the Columbus Police Department; and CITY OF COLUMBUS, MISSISSIPPI DEFENDANTS
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTIONS
before the Court are two motions: a motion to dismiss 
filed by Defendants City of Columbus and Tony Carleton which
the other Defendants have joined [18 & 34]; and a motion
to dismiss  filed by Defendant Canyon Boykin which the
other Defendants have joined [35, 38, & 45]. Upon due
consideration, the Court finds the motions to dismiss are
well taken and must be granted.
Factual and Procedural Background
October 14, 2016, Plaintiff Ricky Martin ("Plaintiff
Martin"), "as natural father and wrongful death
beneficiary" of the deceased, Ricky Javentia Ball
("Decedent"), filed this action against Defendant
City of Columbus, Mississippi, as well as the following
Defendants in their individual and official capacities as
officers of the Columbus Police Department: Canyon Boykin
("Defendant Boykin"), Johnny Branch
("Defendant Branch"), Yolanda Young
("Defendant Young"), and Garrett Mittan
("Defendant Mittan"); and Tony Carleton in his
individual and official capacity as Chief of Police of the
Columbus Police Department ("Defendant Carleton")
(collectively, "Defendants")- It is undisputed
that Decedent was shot and killed by police in Columbus,
Lowndes County, Mississippi. Plaintiff Martin, the putative
natural father of Decedent, contends that Decedent's
estate is entitled to damages under 42 U.S.C. § 1983, as
well as state law claims, for the alleged wrongful death of
Decedent. Defendants argue that the fatal shooting of
Decedent was in self-defense.
February 8, 2017, Defendants Carleton and City of Columbus
filed a motion to dismiss for failure to state a claim and
lack of jurisdiction  which was subsequently joined in by
the other Defendants [18 & 34]. Plaintiff Martin filed a
response in opposition, and Defendants filed a reply.
Plaintiff Martin then filed an untimely memorandum brief in
support of his response in opposition, and Defendants filed
an amended reply.
February 14, 2017, Defendant Boykin filed a motion to dismiss
for lack of jurisdiction  which was subsequently joined
in by the other Defendants [35, 38, & 45]. Plaintiff
Martin filed a response in opposition, and Defendants filed a
reply and supplement to their motion. Plaintiff Martin filed
a response to the supplement.
Analysis and Discussion
issues are before the Court on the present motions to
dismiss: (1) whether Plaintiff Martin has standing to bring
the claims asserted in the case sub judice; (2)
whether this case should be dismissed or consolidated with
the Royal case; and (3) whether the Mississippi Tort
Claims Act state law claims are barred by failure to provide
pre-suit notice. Because the Court finds that Plaintiff
Martin does not have statutory standing, the case must be
dismissed. The Court need not and does not address the
stated, the dispositive issue in this case is whether
Plaintiff Martin has statutory standing to bring this case,
which asserts Section 1983 and state law claims. The type of
standing at issue is not Article III standing, but statutory
standing. "[S]tatutory standing is not indicative of
Article III jurisdictional standing." Camsoft Data
Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 332
(5th Cir. 2014). "If a plaintiff does not have statutory
standing, he lacks a cause of action, and the action should
be dismissed under Federal Rule of Procedure 12(b)(6)."
Walker v. New Orleans City, La., No. 16-31229, 2017
WL 3467879, at *1 (5th Cir. Aug. 11, 2017) (per curiam)
(citing Malvino v. Delluniversita, 840 F.3d 223,
229-30 (5th Cir. 2016); Harold H. Huggins Realty, Inc. v.
FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011)
("Unlike a dismissal for lack of constitutional
standing, which should be granted under Rule 12(b)(1), a
dismissal for lack of . . . statutory standing is properly
granted under Rule 12(b)(6).")). "[W]hether or not a
particular cause of action authorizes an injured plaintiff to
sue is a merits question ... not a jurisdictional
question." Blanchard 1986, Ltd. v. Park Plantation,
LLC, 553 F.3d 405, 409 (5th Cir. 2008).
although Defendants in the case sub judice urge
their motions to dismiss pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure as a challenge to the
Court's subject-matter jurisdiction and Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
claim, the issue of statutory standing presents a challenge
to the merits of the action under Rule 12(b)(6). The Court
will thus consider the motion as one filed solely under Rule
to bring a [Section] 1983 claim 'is guided by 42 U.S.C.
§ 1988, which provides that state common law is used to
fill the gaps in [Section 1983's] administration.'
" Walker, 2017 WL 3467879, at *1 (quoting
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.
2004)). "Thus, in order to have statutory standing to
bring a [Section] 1983 claim on behalf of another, a
plaintiff 'must have standing under the state wrongful
death or survival statutes.' " Id. (quoting
Pluet, 355 F.3d at 383); accord Rodgers v.
Lancaster Police & Fire Dep't, 819 F.3d 205,
208-09 (5th Cir.), cert denied, 137 S.Ct. 304, 196
L.Ed.2d 223 (2016), reh'g denied, 137 S.Ct. 545,
196 L.Ed.2d 440 (2016) ("[Section 1988 incorporates
wrongful death statutes."). "A party must have
standing at the time the complaint is filed."
Pluet, 355 F.3d at 386.
Plaintiff Martin has statutory standing, he can assert both
the Section 1983 claims and state law claims against
Defendants. If Plaintiff Martin does not have statutory
standing, he cannot bring any of the claims in this case, and
his claims must be dismissed.
wrongful death statute is Mississippi Code ¶ 11-7-13.
Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d
259, 259-60 (Miss. 2017). The statute provides in pertinent
The action for such damages may be brought in the
name of the personal representative of the deceased person or
unborn quick child for the benefit of all persons entitled
under the law to recover, or by widow for the death of her
husband, or by the husband for the death of the wife, or
by the parent for the death of a child or unborn
quick child, or in the name of a child, or in the name of a
child for the death of a parent, or by a brother for the
death of a sister, or by a sister for the death of a brother,
or by a sister for the death of a sister, or a brother for
the death of a brother, or all parties interested may join in
the suit, and there shall be but one (1) suit for the same
death which shall ensue for the benefit of all parties
concerned, but the determination of such suit shall not bar
another action unless it be decided on its merits. . . . The
list of persons in this section who may bring a wrongful
death action is exclusive and only those persons shall be
considered interested parties who are entitled to bring an
action under this section.
Code Ann. § 11-7-13 (emphases added). As stated above,
Plaintiff Martin is the putative natural father of Decedent,
who died intestate. See Lowndes Cty. Chancery
Ct.'s Order Determining Heirs at Law [42-2] ¶ 1. The
statute "appl[ies].. to the natural father on account of
the death of the illegitimate child ..., and [he] shall have
all the benefits, rights[, ] and remedies conferred by this
section on legitimates, if the survivor has or establishes
the right to inherit from the deceased under Section
91-1-15." Estate of Smith v. Smith ex rel
Rollins,130 So.3d 508, 512 (Miss. 2014) (emphasis
added); see Burdette v. ...