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Fells v. City of Gulfport

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

September 16, 2017




         BEFORE THE COURT are the [3] Motion to Quash and Dismiss filed by Defendant Jennifer Krump, and the [5] Motion to Dismiss or for Summary Judgment filed by Defendants Donald Ison, Aaron Fore, and the City of Gulfport, Mississippi. The plaintiff, who is represented by counsel, has not responded to either motion. After due consideration of the record, arguments and evidence presented by the defendants, it is the Court's opinion that the defendants have shown that dismissal of the plaintiff's claims is proper. Accordingly, the Motions will be granted and the plaintiff's claims dismissed.


         Plaintiff Fells filed this lawsuit in the Circuit Court of Harrison County, Mississippi, and it was removed to this Court by the City, Ison and Fore. (Notice of Removal, ECF No. 1). A week later, Krump joined in the removal “by way of special appearance only, ” as she alleged she had not been properly served with process. (Joinder 1, ECF No. 2).

         According to his Complaint, Fells was arrested while at his job at Wal-Mart for possession of a controlled substance. (Compl. 3, ECF No. 1-2). The charges were brought after a small white bundle containing cocaine was found on or near a computer keyboard that surveillance video showed Fells had been using. (Id. at 4). He was prosecuted and found not guilty after a jury trial. (Id. at 3). He brings claims under 42 U.S.C. § 1983 for false detention and arrest, malicious prosecution, and illegal search, and a litany of state law claims: criminal conversion, common law civil conspiracy, slander, libel, defamation, humiliation, and negligent infliction of emotional distress. (Id. at 6-7). Although he has sued Ison, Fore, and Krump individually, he does not mention actions or conduct by any of them.[1]

         Krump moves for dismissal on the grounds that she was not timely served with process. Ison and Fore move for dismissal or summary judgment on the grounds that they have qualified immunity from the federal claims in their individual capacities. The City asserts that it cannot be liable on the respondeat superior theory that Fells appears to have alleged. Ison, Fore, and the City assert that the state law claims are intentional torts that were filed beyond the one-year statute of limitations.

         The Legal Standards

         When considering a motion to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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.” Id. Whether this standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         Summary judgment is mandated against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party has the burden of proof at trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual controversies are resolved in favor of the nonmoving party, but only when there is an actual controversy; that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The plaintiff has not submitted any argument or evidence in opposition to the defendants' Motion. Nevertheless, the defendants have the burden of establishing the absence of a genuine issue of material fact and, unless they have done so, the Court may not grant the Motion, regardless of whether any response was filed. Hibernia Nat'l. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).


         1. 42 U.S.C. § 1983 and Qualified Immunity

         Title 42 U.S.C. § 1983 imposes liability upon any person who, acting under color of state law, deprives another of federally protected rights. Section 1983 affords a remedy to those who suffer, as a result of state action, deprivation of rights, privileges, or immunities secured by the Constitution and the laws of the United States. White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). Ison and Fore, in their individual capacities, assert that they are entitled to the defense of qualified immunity. “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (citing Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001)). This burden cannot be discharged by conclusory allegations and assertions. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).

         Evaluating a claim of qualified immunity involves two inquiries: (1) whether the plaintiff has alleged a violation of a constitutional right; and (2) whether that right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part by Pearson, 129 S.Ct. 808. “[T]o hold that the defendant violated the law at step one of the qualified-immunity analysis . . . is simply to say that the plaintiff has stated a claim upon which relief may be granted.” Morgan v. Swanson, 659 F.3d 359, 384 (5th Cir. 2011). To meet that burden, a plaintiff “must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.” Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015) (internal quotation marks and citation omitted). Each defendant's actions must be evaluated individually, Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007), and “the burden is on the plaintiff to ‘demonstrate the inapplicability of the defense.'” Coleman v. Marion Cty., No. 2:14cv185-DPJ-FKB, 2015 WL 5098524, at *6 (S.D.Miss. Aug. 31, 2015) (quoting McClendon, 305 F.3d at 323).

         As noted above, Fells' Complaint contains no explanation of Ison's or Fore's involvement in the events Fells alleges. Thus, there are no facts from which the Court could determine if Ison or Fore took any unlawful official action. Additionally, both defendants filed affidavits stating that neither had arrested Fells, nor conducted a search of Fells' person in connection with an arrest. (Ison & Fore Mot. Exs. E, F, ECF Nos. 5-5, 5-6). Fells has failed to meet his burden of demonstrating the inapplicability of the qualified immunity defense. Accordingly, Ison and Fore ...

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