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 the motion to
dismiss filed by Marshall Fisher, Jerry Williams, Earnest
Lee, Timothy Morris, Brenda Cox, Tara Roland, and Ella
Foster. Doc. #37.
10, 2016, James Arthur Judd, as a wrongful death beneficiary
and administrator of the estate of Kevin Bowens, filed a
complaint in this Court against numerous persons and
entities, including the State of Mississippi and the
Mississippi Department of Corrections (“MDOC”).
Doc. #1. The complaint alleged that the defendants acted with
negligence and violated the constitutional rights of Bowens,
a former inmate at the Mississippi State Penitentiary, by
failing to protect Bowens from an attack by a fellow inmate
which resulted in Bowens' death. Id.
February 7, 2017, the State and MDOC filed a joint answer
asserting various affirmative defenses, including sovereign
immunity. Doc. #10. The same day, the State and MDOC filed a
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure. Doc. #11.
March 23, 2017, Judd, with leave of the Court, filed an
amended complaint. Doc. #17. The amended complaint includes
the same general allegations but adds as defendants the
following past and former employees of MDOC: Christopher
Epps, Marshall L. Fisher, Archie Longley, Jerry Williams,
Earnest Lee, Timothy Morris, Brenda Cox, Tara Roland, Ella
Foster, Jeran Turner, Tavarius Walls, and Kimberly Williams.
See id. at ¶ 5.
Cox, Fisher, Lee, Morris, Roland, the State, and Williams,
answered the amended complaint on April 25, 2017. Doc. #31.
Foster filed a separate answer on May 9, 2017. Doc. #35.
10, 2017, this Court granted the State and MDOC's motion
to dismiss. Doc. #36. Twelve days later, Cox, Fisher, Foster,
Lee, Morris, Roland, and Williams (“moving
defendants”) filed a motion to dismiss the official
capacity claims brought against them. Doc. #37. Judd did not
respond to the motion.
moving defendants, invoking Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure,
seek dismissal of the official capacity claims on the grounds
that they are protected by sovereign immunity and that they
are not “persons” within the meaning of 42 U.S.C.
§ 1983. Doc. #38. The first of these defenses implicates
Rule 12(b)(1). See Warnock v. Pecos Cty., 88 F.3d
341, 343 (5th Cir. 1996) (“Because sovereign immunity
deprives the [federal] court of jurisdiction, … claims
barred by sovereign immunity can be dismissed only under Rule
12(b)(1) and not with prejudice.”). However, the second
defense - that the moving defendants are not
“persons” within the meaning of § 1983 -
concerns a plaintiff's ability to state a claim, thus
mandating a Rule 12(b)(6) inquiry. See Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002)
(§ 1983 claim against non-person supplied supplemental
jurisdiction); Fontana v. Paeste v. Gov't of
Guam, 798 F.3d 1228, 1234 (9th Cir. 2015) (“Three
circuits have held that whether a party is a person under
§ 1983 is not a jurisdictional question, but rather a
statutory one. We agree and so hold.”) (internal
quotation marks and alterations omitted).
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.”
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001). A court may dismiss for lack of subject matter
jurisdiction based on: “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by ...