United States District Court, S.D. Mississippi.
MEMORANDUM OPINION AND
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court grants in part and denies in
part Defendant's Motion for Partial Summary
Judgment  and denies Defendant's
Motion for Summary Judgment .
Court discussed the background of this case in a previous
opinion. See Dukes v. Lumberton, No.
2:17-CV-150-KS-MTP, 2017 WL 6373982 (S.D.Miss. Dec. 13,
2017). Plaintiffs are former elected officials of the City of
Lumberton, Mississippi. They allege that the City refused to
pay them back wages, and that the City failed to make
payments into Mississippi's Public Employees'
Retirement System (“PERS”) on their behalf.
Plaintiffs contend that “it was understood” that
Defendant would fully compensate them once funds became
available, but once funds became available, Defendant refused
to pay them, while paying other employees. They filed this
suit, asserting claims under 42 U.S.C. § 1983 and the
Fair Labor Standards Act (“FLSA”), as well as a
breach of contract claim.
filed a Motion to Dismiss , which the Court granted in
part and denied in part. Id. Specifically, the Court
held that any Section 1983 claims accruing from 2010 to 2013
are barred by the applicable statute of limitations, but that
any Section 1983 claims arising from the City's alleged
breach of an agreement to pay them back wages and the
City's failure to make PERS payments are not barred.
Id. at *2. The Court also held that Plaintiffs
pleaded sufficient facts to support the application of
equitable estoppel with respect to the statute of limitations
on their FLSA claims. Id. Finally, the Court held
that Plaintiffs had pleaded sufficient facts to support the
application of equitable estoppel with respect to the statute
of limitations on their breach of contract claims.
Id. at *3.
filed a Motion for Partial Summary Judgment  as to Counts
I and II of the Amended Complaint - Plaintiffs' due
process and equal protection claims. It also filed a Motion
for Summary Judgment  as to Counts III and IV of the
Amended complaint - Plaintiffs' FLSA and breach of
contract claims - on the basis of sovereign immunity.
Standard of Review
provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “An issue is material if its
resolution could affect the outcome of the action.”
Sierra Club, Inc., 627 F.3d at 138. “An issue
is ‘genuine' if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving
party.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009). When deciding whether a genuine
fact issue exists, “the court must view the facts and
the inference to be drawn therefrom in the light most
favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276
F.3d 736, 744 (5th Cir. 2002).
Motion for Partial Summary Judgment 
first motion, Defendant provided no evidence. Instead, it
made purely legal arguments. First, in Count I of the Amended
Complaint, Plaintiffs allege that Defendant violated rights
secured by the due process clause of the Fourteenth Amendment
by refusing to pay their back wages without due process.
Plaintiffs contend that the refusal to pay back wages
constitutes a deprivation of property.
Process Clause of the Fourteenth Amendment provides that no
State shall “deprive any person of life, liberty, or
property, without due process of law . . . .” U.S.
Const. amend. XIV, § 1. There can be no deprivation of
due process in the absence of a protected property
right or liberty interest. See, e.g. Johnson v.
Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); DePree
v. Saunders, No. 2:07-CV-185-KS-MTP, 2008 WL 4457796, at
*7 (S.D.Miss. Sept. 30, 2008), aff'd, 588 F.3d
282 (5th Cir. 2009). “Constitutionally protected
property interests are created and defined by understandings
that stem from an independent source such as state law . . .
.” DePree, 588 F.3d at 289.
argues that “claims for wages are provided by contract
law and legislation, ” rather than the Constitution. In
Count I, Plaintiffs have not asserted a FLSA claim for back
wages. Rather, Plaintiffs allege that they had an agreement
with Defendant to defer payment of wages until the funds were
available, and that Defendant breached the agreement by
refusing to pay their back wages once the funds became
available. The parties have not addressed in briefing whether
this alleged agreement created a property interest under
state law. Therefore, the briefing is insufficient, and the
Court declines to address this aspect of Defendant's
Defendant argues that Plaintiffs failed to allege a policy or
custom that caused the alleged injury. For a municipality to
be liable under Section 1983, a plaintiff must prove three
elements: “(1) a policymaker; (2) an official policy;
and (3) a violation of constitutional rights whose moving
force is the policy or ...