United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN, UNITED STATES DISTRICT JUDGE.
civil rights action is before the Court on Fred's Stores
of Tennessee, Inc.'s motion to dismiss. Doc. #60.
November 16, 2015, Samuel Lydell Capnord filed a pro se
complaint in this Court against “Fred's.”
Doc. #4. In submitting his complaint, Capnord utilized what
appears to be a form complaint for an employment
discrimination claim and checked only the Title VII box in
categorizing his claims. Id. at 1. However, the
complaint itself alleges: “I was a disabled customer.
Also, discriminated against because of ... Plaintiff's
color ... [and] Plaintiff's disability.”
Id. at 3. Capnord identified his race as
“black (different shade)” and his disability as
“use cane for assistance prescribed by doc.”
Id. When prompted to recite the specific acts of
discrimination, Capnord wrote:
August 26, 2016 assistant manager Yolanda Fletcher yelled at
me and me get out of a line when I was only customer. I am a
permanently disable person. I had to go in the back of a
single foul line on other cashier's register. Then she
signal a Caucasian woman approximately mid way or 4th or 5th
in line and checked her out. Store Manager Willie Priestly
was not professional did not do a thorough investigation.
Id. at 4. As relief, Capnord requests that Defendant
be ordered to “compensate monetary damages for pain and
suffering.” Id. at 5.
answered Capnord's complaint on December 10, 2015. Doc.
#8. Following the answer, the parties engaged in
approximately eight months of discovery during which
Fred's deposed and served discovery on Capnord. Doc. #19;
September 8, 2016, Fred's filed a motion to dismiss
Capnord's complaint or, in the alternative, for summary
judgment. Doc. #33. In its accompanying memorandum,
Fred's argued that Capnord is asserting claims for
employment discrimination and negligence and that such claims
must fail because Capnord was not employed by Fred's and
because Fred's was not negligent. Doc. #34 at 4-7.
April 26, 2017, the Court entered an order denying Fred's
motion on the grounds that Capnord's complaint asserts
“claims for disability and race discrimination in
public accommodation, ” not claims for employment
discrimination or negligence. Doc. #53 at 8-9. Approximately
a month later, on May 26, 2017, this Court entered an order
allowing Fred's to file a motion addressing the claims
remaining in this case and setting a briefing schedule for
the motion. Doc. #57. Consistent with the briefing schedule,
Fred's filed a motion to dismiss, Doc. #60; Capnord
responded to the motion, Doc. #61; and Fred's replied,
motion to dismiss seeks dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6). Doc. #60. In support of the
requested dismissal, Fred's relies on two documents
attached to the motion-a deposition of Capnord and an
affidavit of Yolanda Fletcher.
general matter, where a defendant has filed a 12(b)(6) motion
and “submitted matters outside the pleadings without
such evidence being excluded by the Court [within ten days],
” the proper course is to treat the 12(b)(6) motion as
a motion for summary judgment. McNair v.
Mississippi, 43 F.Supp.3d 679, 682 (N.D. Miss. 2014)
(citing Washington v. Allstate Ins. Co., 901 F.2d
1281, 1284 (5th Cir. 1990)). More than ten days have passed
since Fred's submitted matters outside the pleadings