United States District Court, S.D. Mississippi, Western Division
KEVIN L. WILSON and DANA WILLIAMS WILSON PLAINTIFFS
PHILIP WEST, Individually and in his Official Capacity as Vice-President of the Natchez-Adams School District; JACQUELINE L. MARSAW, Individually and in concert with Defendant, PHILIP WEST; NATCHEZ-ADAMS SCHOOL DISTRICT BOARD OF TRUSTEES; Amos James, Philip West, Thelma Newsome and Brenda Robinson Individually and in their Official Capacities and in concert with Defendant, Philip West; and JOHN DOES NOS. 1-10 DEFENDANTS
BRAMLETTE, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Jacqueline L. Marsaw
(“Marsaw”)'s Motion to Dismiss [Doc.
20] and the plaintiff's Response in Opposition
[Doc. 31]. For the reasons that follow, the Motion to Dismiss
[Doc. 20] is DENIED.
plaintiffs allege violations of their First, Fourth, and
Fourteenth Amendment rights. Doc. 1, p.10, ¶12. They
also allege that the defendants conspired with the intent to
deny the plaintiffs the equal protection of the laws in
violation of 42 U.S.C. § 1985. The plaintiffs claim that
Marsaw conspired with other defendants and caused
“defamatory and hate-driven [speech] and induced
publications to be made on social media, which likewise
evinces the patently false statements that the [p]laintiffs
are racists and that all persons should therefore boycott the
businesses and enterprises owned and operated by the
[p]laintiffs, so as to cause loss and damages to the
[p]laintiffs.” Doc. 1, p.9, ¶11. The plaintiffs
also claim that “[a]s a direct and proximate result of
the actions and conduct of Defendant Marsaw, the [p]laintiffs
have suffered actual and compensatory, incidental and
consequential, damages all to their loss and
detriment.” Doc. 1, p.10, ¶11. The plaintiffs
maintain that “[t]his case is about the retaliatory
boycott pursued by the Defendants, including Marsaw, and not
about validation of bonds under state statutory law.”
Doc. 32, p.2. Therefore, the plaintiffs allege that the
defendants retaliated against the plaintiffs' expression
of their First Amendment rights. Doc. 1, p.9, ¶11. The
plaintiffs also make claims of mental and emotional distress,
invasion of privacy, and harming business opportunities. See
Doc. 1. Marsaw seeks to dismiss the action on the grounds
that the plaintiffs have failed to state a claim upon which
relief may be granted. Doc. 20, p.1, ¶1.
Fifth Circuit makes clear that to survive a motion to
dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009)(citing and
quoting Ashcroft v. Iqbal, 556 U.S. 662
(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007))). A complaint is facially plausible when the
complaint contains factual content that allows the court to
draw a reasonable inference that the defendant is liable of
the alleged misconduct. Id. The Court accepts
well-pleaded facts as true and considers them in the light
most favorable to the plaintiff. Romero v. City of
Grapevine, Tex., 888 F.3d 170, 176 (5th Cir.
2018)(citing Stokes v. Gann, 498 F.3d 483, 484 (5th
Cir. 2007)). In ruling on the defendant's motion, the
Court may rely on the complaint, its proper attachments, and
documents incorporated into the complaint by reference.
Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir.
hate-speech, Marsaw moves to dismiss, claiming that
“being called a racist does not constitute hate speech
within the purview of the First Amendment.” Doc. 21,
p.3. Marsaw discusses several Supreme Court cases concerning
speech protected by the First Amendment and contends that
because her speech is protected by the First Amendment, the
plaintiffs claims should be dismissed. Doc. 21, p.5. However,
Marsaw does not argue the elements of pleading hate-speech or
what determines whether a word is actionable in court.
Code Ann. § 95-1-1 states
All words which, from their usual construction and common
acceptation, are considered as insults, and calculated to
lead to a breach of the peace, shall be actionable. . . .
Id. The plaintiffs allege that defendants stated
that the plaintiffs are racists. Doc. 1, p.9. ¶11; Doc.
the Court considers all well-pleaded facts as true and
considers them in the light most favorable to the plaintiff
at this stage of the proceedings, the Court does not dismiss
the plaintiffs' claims against Marsaw simply because she
contests the plaintiffs' allegations and claims their
claims will not succeed at trial, based on Supreme Court
cases regarding First Amendment violations. See Romero, 888
F.3d at 176. Therefore, the Court analyzes whether
“racist” fits Miss. Code Ann. § 95-1-1's
category as an actionable word. To be an actionable word, the
word “racist” must be “considered as [an]
insult, and [be] calculated to lead to a breach of the
peace.” Miss. Code Ann. § 95-1-1. The Court finds
that “racist” meets those requirements.
Therefore, the word is actionable and the plaintiffs'
Complaint should not be dismissed simply because Marsaw
“denies that she uttered such.” [Doc. 21, p.2, 6]
the plaintiffs' defamation claims, Marsaw lays out the
elements necessary to prove defamation. Doc. 21, p.6. She
argues that the plaintiffs failed to state a claim because
the elements of proof have not been satisfied. Id.
Marsaw makes this conclusion because she contends that she
did not remark that the plaintiffs were “racist.”
Id. The ...