United States District Court, N.D. Mississippi, Aberdeen Division
before this Court are two motions: Defendant Matthew
Hood's second motion  to dismiss, and Plaintiff Kim
Collins' motion  for leave to amend her complaint.
For the following reasons the Court finds that: 1) the motion
for leave to amend should be denied; and 2) the motion to
dismiss should granted in part and denied in part.
and Procedural History
42 U.S.C. § 1983 case, Collins sues Hood, a Mississippi
Highway Patrolman, for alleged constitutional violations that
occurred during a traffic stop. Collins alleges that during a
traffic stop and arrest in January 2013, Hood violated
Collins's First Amendment right to free speech; Fourth
Amendment rights to be free from unreasonable seizure and
excessive force; and Fourteenth Amendment due process rights.
Collins also asserts a tort claim for damages inflicted on
Collins because of Hood's "intentional, reckless, or
negligent actions." Am. Compl.  ¶ 25.
specifically, Collins alleges that Hood pulled her over for
speeding and issued her a citation. Id. ¶¶
6-10. While Hood was issuing the citation, Collins questioned
why Hood was ticketing her, and after Hood issued the
citation, Collins told Hood she "would be calling his
boss." Id. Hood ordered Collins to drive away,
but as Collins did so, Hood ordered her to stop the vehicle.
Id. ¶ 11.
approached the vehicle, and ordered Collins to exit, while
Collins objected. Id. ¶ 12. Hood informed
Collins he was placing her under arrest and attempted to
remove her from the vehicle. Once Hood had removed Collins
from the vehicle, he attempted to handcuff her. Id.
¶ 13. Collins admits to resisting Hoods attempts to
handcuff her. While Collins resisted, Hood threw her to the
ground, injuring Collins, and ultimately handcuffed her.
the arrest Collins was charged with, and 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. On June 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 misdemeanor convictions
for resisting arrest, disorderly conduct, public profanity,
and disturbing the peace. Collins v. State, 223
So.3d 817 (Ct. App. Miss. 2017).
January 19, 2016, while the appeal of her criminal
convictions was pending, Collins filed her initial complaint
in the case sub judice against Hood, in both his
individual and official capacities, the State of Mississippi,
and the Mississippi Highway Patrol. Before an answer was
filed, Collins amended her complaint to include only Hood in
his individual and official capacity as a defendant, and
removing the State of Mississippi and the Mississippi Highway
Patrol as defendants.
filed a first motion to dismiss arguing that Collin's
official-capacity claims should be dismissed due to sovereign
immunity and that the individual-capacity claims should be
dismissed based on Heck v. Humphrey, 512 U.S. 447,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). This Court dismissed
the official-capacity claims, but found that the individual
capacity-claims were not Heck-barred.
October 24, 2017, Hood filed a second 12(b)(6) motion  to
dismiss, arguing that he was entitled to qualified immunity
and that the amended complaint failed to state a claim. On
January 5, 2018, Collins filed a motion  for leave to
amend the complaint.
Court will first decide whether Collins' should be
permitted to amend her complaint, and if it declines to grant
leave, the Court will analyze Hood's motion to dismiss.
Motion for Leave to Amend
should freely give leave to amend a pleading when justice
requires. Fed. R. Civ. P 15(a)(2). "In the context of
motions to amend pleadings, 'discretion' may be
misleading, because Fed.R, Civ.P. 15(a) 'evinces a bias
in favor of granting leave to amend.' "
Martin's Herend Imports, Inc. v. Diamond & Gem
Trading United States of Am. Co., 195 F.3d 765, 770 (5th
Cir. 1999) (quoting Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 597 (5th Cir.1981)).
"[t]he district court may deny leave to amend if the
amendment would be futile because 'the amended complaint
would fail to state a claim upon which relief could be
granted.' " McGee v. Citi Mortage, Inc.,
680 Fed.Appx. 287, 291 (5th Cir. 2Ol7)(quoting Stripling
v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.
2000)). To determine whether the amended complaint is futile,
the court should apply "the same standard of legal
sufficiency as applies under Rule 12(b)(6)."
Stripling, 234 F.3d at 873.
Motion to Dismiss under 12(b)(6)
deciding a Rule 12(b)(6) motion to dismiss, the Court is
limited to the allegations set forth in the complaint and any
documents attached to the complaint. Walker v. Webco
Indus., Inc., 562 Fed.Appx. 215, 216-17 (5th Cir. 2014)
(per curiam) (citing Kennedy v. Chase Manhattan Bank USA,
NA, 369 F.3d 833, 839 (5th Cir. 2004)). "[A
plaintiffs] complaint therefore 'must contain sufficient
factual matter, accepted as true, to "state a claim to
relief that is plausible on its face." ' "
Phillips v. City of Dallas, Tex., 781 F.3d 772,
775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))).
is facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
"[P]laintiffs must allege facts that support the
elements of the cause of action in order to make out a valid
claim." Webb v. Morella,522 Fed.Appx. 238, 241
(5th Cir. 2013) (per curiam) (quoting City of Clinton,
Ark v. Pilgrim's Pride Corp.,632 F.3d 148, 152-53
(5th Cir. 2010) (internal quotation marks omitted)).
"[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
prevent a motion to dismiss." Id. (quoting
Fernandez-Montes v. Allied Pilots Ass's 987 F.2d
278, 284 (5th Cir. 1993) (internal quotation marks omitted)).
"Dismissal is appropriate when the plaintiff has not
alleged 'enough facts to state a claim to relief that is
plausible on its face' and ...