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Johnson v. City of Indianola

United States District Court, N.D. Mississippi, Greenville Division

August 9, 2019

KENNITH JOHNSON PLAINTIFF
v.
CITY OF INDIANOLA, MISSISSIPPI, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         This civil rights action is before the Court on Darnell Fisher's motion to dismiss. Doc. #18.

         I

         Procedural History

         On 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 4-5.

         On 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.

         On 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 removal states:

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.

         On 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.

         II

         Relevant Standard

         The first motion to dismiss seeks dismissal under Federal Rule of Civil Procedure 12(b)(6).[1] Doc. #5. The second motion to dismiss does not refer to a specific rule[2] but, to the extent it essentially seeks dismissal for failure to state a claim[3] 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.”).

         A 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 ...


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