Williams v. City of Booneville, Mississippi et al

Filing 44

MEMORANDUM OPINION re (Prentiss County) 42 Order on Motion to Dismiss,. Signed by Glen H. Davidson on 06/28/2011. (dlh)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

JENNIFER WILLIAMS

PLAINTIFF

CIVIL ACTION NO. 1:10cv-221-D-D

VS.

CITY OF BOONEVILLE, MISSISSIPPI
AND PRENTISS COUNTY, MISSISSIPPI

DEFENDANTS

OPINION GRANTING DEFENDANT'S MOTION TO DISMISS

Presently before the Court is the Defendant Prentiss County's motion to dismiss.
Plaintiff was granted additional time in which to respond to the motion but failed to do so. After
reviewing the motion, rules and authorities, the Court makes the following findings:
Factual and Procedural Background

The plaintiff alleges that she was wrongfully arrested without probable cause on
December 5, 2008. Plaintiff claims that, sometime after being "booked" but before being placed
in the drunk tank, a Prentiss County Sheriffs Department employee tazed her in the chest for no
reason and without provocation.
Plaintiff delivered a Mississippi Tort Claims Act Notice of Claim letter to the Prentiss
County on December 8, 2009.

Plaintiffs Complaint was filed on July 20, 20 I0 and her

Amended Complaint was filed on September 15,2010. In Plaintiffs Motion to Remand [docket
entry 30] she states, "Plaintiff amended her complaint and alleged no violation of any federal law
or any civil rights violation but merely state law claims."
Defendant Prentiss County filed the present motion to dismiss based on the argument that
all of Plaintiffs claims are barred by the Mississippi Tort Claims Act's statute of limitation

and/or they should be dismissed on substantive law grounds.

Because the Court finds that

Plaintiffs claims should be dismissed based upon the applicable statute of limitation, it does not
address the remaining grounds urged by Defendant.
Motion to Dismiss Standards

When considering a motion to dismiss under Rule 12(b)(6), the district court must accept
all well-pleaded facts as true and view the facts in a light most favorable to the plaintiff. Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Under Federal Rule of Civil Procedure 12(b)(6), a

court may dismiss a claim when examination of the pleadings reveals that a plaintiff has failed to
state a claim upon which relief can be granted. To overcome a Rule 12(b)(6) motion, Plaintiff
must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Ashcroft v. Iqbal,

--- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868, 883-85 (May 18, 2009). However, if the
assertions made within a complaint, even if true, '''could not raise a claim of entitlement to relief,
this basic deficiency should be exposed at the point of minimum expenditure of time and money
by the parties and the court.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing
Twombly, 550 U.S. at 558, 127 S.Ct.1955) (internal quotation marks omitted)).

Plaintiff is only asserting state law claims therefore the Mississippi Tort Claims Act,
Miss. Code Ann. §11-46-1, et seq., statute of limitations governs the case sub judice. Miss. Code
Ann. § 11-46-11 (l ) provides:
After all procedures within a governmental entity have been exhausted,
any person having a claim for injury arising under the provisions of this
chapter against a governmental entity or its employees, shall proceed as he
might in any action at law or in equity; provided, however, that ninety (90)
days prior to maintaining an action thereon, such a person shall file a
Notice of Claim with the chief executive office of the governmental
entity....

2

Miss. Code Ann. 11-46-11(3) states:
All actions brought under the provIsIOns of this Chapter shall be
commenced within one (1) year after the date of the tortious, wrongful or
otherwise actionable conduct on which the liability phase of the action is
based, and not after; provided, however, that the filing of a Notice of
Claim as required by sub-section (1) of this section shall serve to toll the
statute of limitations for a period of ... one hundred and twenty (120) days
from the date the chief executive officer or other statutorily designated
official of a ... county or other political subdivision receives the Notice of
Claim, during which time no action may be maintained by the claimant
unless the claimant has received a Notice of Denial of Claim. After the
tolling period has expired, the claimant shall then have an additional
ninety (90) days to file any action against the governmental entity served
with proper claim notice.
Miss. Code Ann. § 11-46-11(3).
Discussion

In its motion, Defendant Prentiss County argues that Plaintiffs state law claims should be
dismissed for failure to comply with the Mississippi Tort Claims Act ("MTCA"), Miss.Code
Ann. § 11--46-11 (1), which requires that plaintiffs file a notice with the chief executive officer of
the governmental entity to be sued within one year of alleged offence. The alleged conduct by
Prentiss County occurred on December 5, 2008. Plaintiff filed a Notice of Claim with Prentiss
County on December 8, 2009.
The Mississippi Supreme Court has held that the "notice of claim requirement imposes a
condition precedent on the right to maintain an action" and is a jurisdictional prerequisite. Gale
v. Thomas, 759 So.2d 1150, 1159 (Miss.1999), City of Jackson v. Lumpkin, 697 So.2d 1179,
1181 (Miss.1997), overruled on other grounds, Carr v. Town of Shubuta, 733 So.2d 261
(Miss.1999).
In a recent OpInIOn by the District Court for Southern District of Mississippi, the
defendants filed a motion to dismiss plaintiff's state law claims due to failure to comply with the

3

MTCA one-year statute of limitation. See Chestang v. Alcorn State University, No.5: 10-cv-67,
2011 WL 1884728 (S.D.Miss. May 17, 2011). Chestang failed to respond to the defendant's
argument. The Chestang court found that by failing to respond and not denying his failure to
comply, plaintiff conceded that the failure and dismissed Chestang's state law claims with
prejudice. Chestang, 2011 WL 1884728, *4.
As stated earlier, Plaintiff has not responded to Defendant's motion to dismiss nor has
Plaintiff denied that she failed to comply with the MTCA. Therefore, this Court is of the opinion
that Plaintiff has conceded that argument.

However, assuming arguendo that Plaintiff had

responded to the motion to dismiss, the Court is of the opinion that Plaintiff failed to comply
with the MTCA. The alleged violation occurred on December 5, 2008 therefore, the one-year
statute of limitation ran on December 5, 2009. Plaintiff did not file a notice of claim letter with
Defendant Prentiss County until December 8, 2009.
Accordingly, the Court finds that Plaintiff failed to comply with the notice requirement
.within one-year of the alleged violation and therefore, her claims against Defendant Prentiss
County shall be dismissed with prejudice.
A separate order in accordance with this opinion shall issue this day.

,yj~

SO ORDERED, this the _0(0_ day ofJune, 2011.~

Senior Judge

4

/I. ~~