United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
cause has come before the Court on Defendants' Renewed
Motion to Dismiss Pursuant to M.R.C.P. 12(b)(6) .
Plaintiffs have responded [34, 35], and Defendants filed a
rebuttal . Having reviewed the parties' submissions,
the Amended Complaint in this matter, and the relevant legal
authority, the Court finds the motion is not well taken and
will be denied.
Pamela Hamilton and Gus Timothy Georgian, filed this action
on April 2, 2019 against three police officers with the
Hattiesburg Police Department, alleging constitutional rights
violations arising from the alleged wrongful arrests of the
two Plaintiffs for the murder of Plaintiff Georgian's
sister. Plaintiffs sued the Defendants under 42 U.S.C. §
1983 in both their individual and official capacities. The
Defendants filed a motion to dismiss the claims against them
in their official capacities , which the Court granted
. This Court applied the law that in order for the
Defendants to be held liable in their official capacities,
which is essentially a suit against the governmental entity,
“the entity's policy or custom must have played a
part in the violation of federal law.” Hafer v.
Melo, 502 U.S. 21, 25 (1991). . Having found the
allegations regarding any policy or practice lacking in the
original Complaint, this Court granted dismissal. .
Plaintiffs then sought leave to file an Amended Complaint
, which the Court granted .
12, 2019, Plaintiffs filed their First Amended Complaint
. Plaintiffs have revised their allegations against the
individual officers in their official capacity and added the
City of Hattiesburg as a defendant. . The individual
Defendants in their official capacities and the City of
Hattiesburg now move to dismiss the claims against them.
survive a motion to dismiss under rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that it plausible on its
face.” In re: Great Lakes Dredge & Dock Co.
LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To be
plausible, the complaint's factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. The Court must “accept all
well-pleaded facts as true and construe the complaint in the
light most favorable to the plaintiff.” Id.
Municipal Liability Claim
bring claims against the named Defendants in their official
capacities under 42 U.S.C. § 1983.  at ¶ 1. A
suit against the officers in their official capacity is
essentially a suit against the City of Hattiesburg. See
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting
Monell v. New York City Dept. of Soc. Svcs., 436
U.S. 658, 690 n. 55 (1978)). Because the real party in
interest is the governmental entity, “the entity's
policy or custom must have played a part in the violation of
federal law.” Hafer v. Melo, 502 U.S. 21, 25
(1991) (citing Graham, 473 U.S. at 166).
under section 1983 attaches where a deprivation of a right
protected by the Constitution or by federal law is caused by
an official policy. An official policy can be found in two
1. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the
municipality's lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well settled
as to constitute a ...