United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS
before the Court is a motion to dismiss  filed by
Defendant Matthew Hood, individually and in his official
capacity as a Mississippi Highway Patrol Trooper. Plaintiff
has not filed a response in opposition. The matter is now
ripe for review. Upon due consideration, the Court finds that
the motion must be granted in part and denied in part, as
Factual and Procedural Background
42 U.S.C. § 1983 case, Plaintiff Kim Collins
("Plaintiff) sues Defendant Matthew Hood, individually
and in his official capacity as a Mississippi Highway Patrol
Trooper ("Defendant"). Plaintiff alleges that during a
traffic stop and arrest in January 2013, Defendant violated
Plaintiffs First Amendment right to free speech; Fourth
Amendment rights to be free from unreasonable seizure and
excessive force; and Fourteenth Amendment due process rights.
Plaintiff also asserts a "tort" claim under federal
law for which she seeks "damages for all intentional,
reckless, or negligent actions of [Defendant] which caused
physical injury to [Plaintiff]." Pl.'s Compl. ¶
25. Plaintiff seeks compensatory and punitive damages.
time of the events giving rise to this suit, Plaintiff was
convicted of resisting arrest, disorderly conduct, speeding,
disturbing the peace, and public profanity in the Circuit
Court of Monroe County. She appealed those convictions to the
Mississippi Court of Appeals.
3, 2016, Defendant filed the present motion to dismiss
pursuant to sovereign immunity, pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure; and Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994), pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. As stated above, the motion is unopposed.
27, 2017, the Mississippi Court of Appeals issued a decision
affirming the Circuit Court of Monroe County as to the
speeding conviction, but reversing that court as to the four
other misdemeanor convictions, as follows: resisting arrest,
disorderly conduct, public profanity, and disturbing the
peace. See Miss. Ct. of Appeals' Disposition
[14-1] at 10.
Analysis and Discussion
argues in his motion to dismiss that under Rule 12(b)(1),
Plaintiffs official-capacity claims against him must be
dismissed due to sovereign immunity; and that under Rule
12(b)(6), the individual-capacity claims against him must be
dismissed based on Heck v. Humphrey, Plaintiff, as
stated above, does not oppose this motion. The Court
addresses each argument for dismissal in turn.
a Rule 12(b)(1) motion is filed in conjunction with a Rule
12(b)(6) motion, . . . courts must consider the
jurisdictional challenge first." McCasland v. City
of Castroville, Tex., 478 F.App'x 860, 860 (5th Cir.
2012) (per curiam) (citing Wolcott v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011); Moran v. Kingdom of Saudi
Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This "
'prevents a court without jurisdiction from prematurely
dismissing a case with prejudice.' " Id. at
860-61 (quoting Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001) (per curiam)); accord Hitt v.
City of Pasadena, Tex., 561 F.2d 606, 608 (5th Cir.
1977) (per curiam).
Federal Rule of Civil Procedure 12(b)(1)
12(b)(1) motion allows a party to challenge the Court's
subject matter jurisdiction. " '[A] factual attack
under Rule 12(b)(1) may occur at any stage of the
proceedings, and plaintiff bears the burden of proof that
jurisdiction does in fact exist.' " Arena v.
Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012)
(quoting Menchaca v. Chrysler Credit. Corp., 613
F.2d 507, 511 (5th Cir. 1980) (citations omitted)).
Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. In considering a
challenge to subject matter jurisdiction, the district court
is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the
case. Thus, under Rule 12(b)(1), the district court can
resolve disputed issues of fact to the extent necessary to
Smith v. Reg'l Transit Auth.,
756 F.3d 340, 347
(5th Cir. 2014) (quotation marks and citation omitted). In
ruling on a Rule 12(b)(1) motion to dismiss, the Court can
consider: "(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Tsolmon
v. United ...