United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT are the  Motion to Quash and Dismiss filed by
Defendant Jennifer Krump, and the  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.
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).
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
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.
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.
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).
42 U.S.C. § 1983 and Qualified Immunity
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).
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).
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 ...