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Wilson v. West

United States District Court, S.D. Mississippi, Western Division

January 16, 2019

KEVIN L. WILSON and DANA WILLIAMS WILSON PLAINTIFFS
v.
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

          ORDER

          DAVID BRAMLETTE, UNITED STATES DISTRICT JUDGE.

         Before 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.

         Background

         The 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.

         Standard of Review

         The 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. 2011).

         Analysis

         Regarding 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.

         Miss. 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. 32, p.6.

         Because 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]

         Regarding 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 ...


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