United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE
civil rights action is before the Court on Darnell
Fisher's motion to dismiss. Doc. #18.
August 3, 2018, Kennith Johnson filed an amended complaint in
the Circuit Court of Sunflower County, Mississippi against
(1) the Indianola, Mississippi, Police Department; (2)
“Indianola, Mississippi Police Officer Darnell Fisher
in his Official Capacity;” and (3) “Indianola
Board of Aldermen.” Doc. #2 at 1. The amended complaint
asserted state law claims for “Breach of Duty”
and “Negligence” arising from an alleged assault,
false arrest, and harassment at the hands of numerous
Indianola police officers, including Fisher. Id. at
September 20, 2018, the defendants filed a motion to dismiss
or for a more definite statement. Doc. #1-4. Johnson
responded to the motion to dismiss on January 24, 2019. Doc.
#1-5. In his response, Johnson argued that “[t]he
actions of Officer Fisher, Police Chief Hall and the City of
Indianola, Mississippi are actionable torts that fall under
the Mississippi Torts Claim act which are 42 USC 1983
claims.” Id. at 6. The response included a
request for “leave to specifically plead the 42 USC
1983 claim ….” Id. at 7.
January 29, 2019, the defendants removed Johnson's state
court action to the United States District Court for the
Northern District of Mississippi. Doc. #1. The notice of
This Response reveals substantial, disputed questions of
federal law, and the allegations contained in Plaintiff's
Amended Complaint reveals that the cause of action asserted
by Plaintiff presents a federal question, that a federal
right is an essential element of Plaintiff's cause of
action, and such claims could have been brought in the United
States District Court in the first instance based on federal
question jurisdiction under 28 U.S.C. §1331, said claims
and allegations seeking relief under the United States
Constitution and 42 U.S.C. §1983.
Id. at 4. Two days later, the defendants filed a
motion to dismiss the state law claims asserted in the
amended complaint. Doc. #5.
February 18, 2019, Johnson, with leave of the Court, filed a
second amended complaint against the City of Indianola and
Fisher, in both his official and individual capacities. Doc.
#14. The second amended complaint alleges claims for
“breach of duty, ” “negligence” and
“42 USC 1983.” Id. at 4-5. The City and
Fisher, in his official capacity, filed a joint answer on
March 5, 2019. Doc. #15. On March 15, 2019, Fisher moved to
dismiss the official capacity claims brought against him.
Doc. #18. One week later, Fisher filed an answer in his
individual capacity. Doc. #21. Johnson responded to the
second motion to dismiss on March 29, 2019. Doc. #27.
first motion to dismiss seeks dismissal under Federal Rule of
Civil Procedure 12(b)(6). Doc. #5. The second motion to dismiss
does not refer to a specific rule but, to the extent it
essentially seeks dismissal for failure to state a
claim and was filed after the answer, is
properly construed as a motion for judgment on the pleadings.
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999); see Fed. R. Civ. P. 12(c) (“After the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings.”).
motion to dismiss for failure to state a claim and a motion
for judgment on the pleadings are assessed under the same
standard. Waller v. Hanlon, 922 F.3d 590, 599 (5th
Cir. 2019). With both, “a complaint must contain
sufficient factual matter, accepted as true, to state a ...