Evans v. Oktibbeha County, Mississippi et al
Filing
28
MEMORANDUM OPINION re 27 Order on Motion to Strike, Order on Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Glen H. Davidson on 9/10/14. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ELIZABETH R. EVANS
v.
PLAINTIFF
CIVIL ACTION NO.1: 13-cv-00233-GHD-DAS
OKTffiBEHA COUNTY, MISSISSIPPI;
GLENN HAMILTON, individually and in his
official capacity as Circuit Clerk of Oktibbeha County,
Mississippi; and MARVEL HOWARD,
DANIEL JACKSON, JOHN nmi MONTGOMERY,
ORLANDO K. TRAINER, and JOE WILLIAMS,
individually and in their official capacities as members
of the Board of Supervisors ofOktibbeha County, Mississippi
DEFENDANTS
MEMORANDUM OPINION GRANTING
ALL DEFENDANTS' MOTIONS TO DISMISS
Presently before the Court are a motion to dismiss [6] filed by Defendants Glenn
Hamilton and Oktibbeha County, Mississippi, and a motion to dismiss [8] filed by Defendants
Marvel Howard, Daniel Jackson, John Montgomery, Orlando K. Trainer, and Joe Williams.
Upon due consideration and for the reasons stated below, the Court finds that both motions
should be granted.
A. Factual and Procedural Background
On October 21,2013, Plaintiff Elizabeth R. Evans ("Plaintiff') initiated this action in the
Circuit Court of Oktibbeha County, Mississippi against Defendants Oktibbeha County,
Mississippi; Glenn Hamilton, individually and in his official capacity as Circuit Clerk of
Oktibbeha County; and Marvel Howard, Daniel Jackson, John Montgomery, Orlando K. Trainer,
and Joe Williams, all individually and in their official capacities as members of the Board of
Supervisors ofOktibbeha County. On December 9, 2013, Defendants removed the action to this
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Court 'on the bases of federal question jurisdiction and supplemental jurisdiction over any
pendent state-law claims.
Plaintiff asserts causes of action for a violation of 42 U.S.C. § 1981; a Fourteenth
Amendment due process violation under 42 U.S.C. § 1983; a Fourteenth Amendment equal
protection violation under § 1983; and First Amendment free speech retaliation under 42 U.S.C.
§ 1983. Plaintiff alleges the following facts:
Plaintiff ... was formerly employed as Deputy Circuit Clerk of
Oktibbeha County, Mississippi for over twenty-three (23) years.
During this time, Plaintiff, an African-American female Democrat,
served under two different circuit clerks, Angie McGinnis, a white
female Democrat, and . . . Miriam Cook, also a white female
Democrat.
In 2011, [Defendant] Glenn Hamilton, a white male
Republican, ran for the position of circuit clerk against Teresa
Davis Roberson, an African-American female Democrat, and Dave
Holly, a white male Democrat. Plaintiff openly supported Ms.
Roberson.
Shortly after Defendant Hamilton won the election, he
terminated Plaintiff and replaced her with Melody Monts, a white
female who had only twenty-two months experience working in
the circuit clerk's office, compared to Plaintiff s twenty-three
years[] of experience.
Pl.'s Compl. [2]
mr 8-10.
In lieu of answering the complaint, the Defendants filed the present motions to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff sought and was granted five
separate extensions of time to file her response to the motions to dismiss. Even so, Plaintiff filed
her response to the motions to dismiss approximately one month past the extended deadline.
Defendants Glenn Hamilton and Oktibbeha County filed a motion to strike [22] Plaintiff's
response to the motions to dismiss as untimely. Plaintiff filed a response to the motion to strike,
arguing that the Court should consider her response, even though it was untimely filed, because
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Defendants suffered no prejudice as a result of the untimely filing. The Court need not rule on the
motion to strike, because whether or not the Court considers Plaintiff s response to the motions to
dismiss, Plaintiffs complaint fails to satisfy the Rule 12(b)(6) standard and thus must be
dismissed. I
B. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for
dismissal of a complaint when the plaintiff has failed to state a claim upon which relief can be
granted, but such motions "are viewed with disfavor and are rarely granted." Kocurek v. Cuna
Mut. Ins. Soc'y, 459 F. App'x 371, 373 (5th Cir. 2012) (citing Gregson v. Zurich Am. Ins. Co.,
322 F.3d 883, 885 (5th Cir. 2003)). In ruling on a motion to dismiss brought under Rule
12(b)(6), " 'courts must take all of the factual allegations in the complaint as true,' but 'are not
bound to accept as true a legal conclusion couched as a factual allegation.'" Wood v. Moss,
u.s. -, -, 134 S. Ct. 2056, 2065 n.5, 188 L. Ed. 2d 1039 (May 27, 2014) (quoting Ashcroft v.
Iqbal, 556 U.S. 662,678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (intemal quotation marks
omitted)). "'[P]laintiffs must allege facts that support the elements of the cause of action in
order to make out a valid claim.''' Webb v. Morella, 522 F. App'x 238, 241 (5th Cir. 2013) (per
curiam) (quoting City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F .3d 148, 152-53 (5th Cir.
2010)).
Although "a complaint need not pin plaintiff's claim for relief to a precise legal theory"
nor present "an exposition of his legal argument," see Skinner v. Switzer, -
U.S.
-,131 S.
Ct. 1289, 1296, 179 L. Ed. 2d 233 (Mar. 7, 2011), "a complaint must contain sufficient factual
I The motion to dismiss [6] filed by Defendants Glenn Hamilton and Oktibbeha County additionally
requested dismissal of the claims against Defendant Glenn Hamilton based on qualified immunity. Because the Court
finds that all claims must be dismissed for failure to state a claim under Rule 12(b)(6), the Court need not address the
qualified immunity issue.
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matter, accepted as true, to state a claim to reliefthat is plausible on its face," Iqbal, 556 U.S. at
678, 129 S. Ct. 1937 (internal quotation marks and citation omitted). "A claim is facially
plausible if the plaintiff pleads facts that allow a court 'to draw the reasonable inference that the
defendant is liable for the misconduct alleged.' " Boyd v. Farrin,
F. App'x - , 2014 WL
3586661, at *2 (5th Cir. July 22,2014) (per curiam) (quoting Iqbal, 556 U.S. at 678, 129 S. Ct.
1937). "'[C]onclusory allegations or legal conclusions masquerading as factual conclusions will
not suffice to prevent a motion to dismiss.''' Webb, 522 F. App'x at 241 (quoting FernandezMontes v. Allied Pilots Ass 'n, 987 F.2d 278, 284 (5th Cir. 1993».
C Analysis and Discussion
1.
Claims Against Defendants Marvel Howard, Daniel Jackson, John Montgomery,
Orlando K. Trainer, and Joe Williams
At the outset, the Court finds that Plaintiff has failed to allege any facts in her complaint
against Defendants Marvel Howard, Daniel Jackson, John Montgomery, Orlando K. Trainer, and
Joe Williams, in either their individual capacities or their official capacities as members of the
Board of Supervisors of Oktibbeha County. Because Plaintiff has pled no facts against these
Defendants, the Court cannot draw the inference that any of these Defendants are liable for the
misconduct alleged; thus, to the extent Plaintiff has attempted to assert allegations against these
Defendants, the same are dismissed for failure to state a claim under Rule 12(b)(6). See Boyd 2014
WL 3586661, at *2 (citing Iqbal, 556 U.S. at 678, 129 S. Ct. 1937). Accordingly, the motion to
dismiss [8] filed by Defendants Marvel Howard, Daniel Jackson, John Montgomery, Orlando K.
Trainer, and Joe Williams shall be granted.
Next, the Court examines whether Plaintiff's
complaint states a claim against Defendants Oktibbeha County and Glenn Hamilton.
2.
Claims Against Defendants Oktibbeha County and Glenn Hamilton
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As stated above, Plaintiff asserts causes of action for a violation of 42 U.S.C. § 1981; a
Fourteenth Amendment due process violation under 42 U.S.C. § 1983; a Fourteenth Amendment
equal protection violation under § 1983; and First Amendment free speech retaliation under 42
U.S.C. § 1983. The Court will examine each asserted cause of action in turn.
a.
Section 1981 Claim
Plaintiff alleges in her complaint that "[t]he actions of Defendants have deprived Plaintiff
of her rights and violated 42 U.S.C. § 1981" and that "[t]hose rights are enforceable by Plaintiff
pursuant to 42 U.S.c. § 1983." Pl.'s Compl. [2]
~
11. Plaintiff alleges the following facts in
support: Defendant Glenn Hamilton ran for the position of circuit clerk against Teresa Davis
Roberson; Plaintiff openly supported Roberson; Defendant Glenn Hamilton won the election;
Defendant Glenn Hamilton fired Plaintiff and replaced her with a white female with much less
circuit clerk office work experience. Defendants Oktibbeha County and Glenn Hamilton argue
that Plaintiff has failed to state a claim under Section 1981, by failing to allege that any act or
omission by Defendants was motivated by Plaintiffs race or any other facts in support of a Section
1981 claim.
Section 1981, known as the "equal contracts rights" provision, was enacted shortly after the
Civil War and provides in pertinent part that "[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts ... as is
enjoyed by white citizens." 42 U.S.C. § 1981(a).
Section 1981 defines "make and enforce
contracts" as including "the making, performance, modification, and termination of contracts, and
the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42
U.S.C. § 1981(b). To bring a claim for racial discrimination and/or retaliation under Section 1981,
Plaintiff must pursue those claims through Section 1983, see Oden v. Oktibbeha County, Miss.,
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246 F.3d 458,462-63 (5th Cir. 2001), and establish "(1) that [s]he is a racial minority; (2) that the
defendant intended to discriminate against h[er] on the basis of race; and (3) that the discrimination
concerns one or more of the activities enumerated in the statute," Wesley v. Gen. Drivers,
Warehousemen & Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011). Although Plaintiff
attempts to bring her Section 1981 claim through Section 1983, and the complaint alleges that
Plaintiff is a racial minority, the complaint fails to allege any facts supporting that Defendants
Oktibbeha County or Glenn Hamilton intended in any way to discriminate against Plaintiff on the
basis of her race. Therefore, Plaintiff's complaint fails to state a claim under Section 1981.
b.
Section 1983 Claims
Plaintiff alleges pursuant to Section 1983 that Defendants deprived her of a constitutionally
protected property interest in her deputy circuit clerk position without due process of law in
violation of the Fourteenth Amendment, violated her equal protection rights, and retaliated against
her for exercising her right to free speech in violation of the First Amendment.
Defendants
contend that Plaintiff has failed to meet the pleading standard for her Section 1983 claims against
Defendants.
Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. "To state a claim under [Section] 1983, a plaintiff must [1] allege the
violation of a right secured by the Constitution and laws of the United States, and [2] must show
that the alleged deprivation was committed by a person acting under color of state law." West v.
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Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (citing cases). The Fifth
Circuit has recognized that to sustain a Section 1983 claim, a plaintiff is required to assert
"claims of specific conduct and actions giving rise to a Constitutional violation." Baker v.
Putnal, 75 F .3d 190, 195 (5th Cir. 1996). As shown below, the Court finds that Plaintiff has
failed to allege the violation of either a Fourteenth Amendment or First Amendment
constitutional right; thus, the Court need not reach whether Plaintiff has shown that the alleged
acts were committed by a person acting under color of state law.
i. Fourteenth Amendment Due Process
Defendants Oktibbeha County and Glenn Hamilton argue that Plaintiff's Fourteenth
Amendment due process claim should be dismissed, because Plaintiff was an at-will employee,
and thus had no constitutionally protected property interest in continued employment as a deputy
circuit clerk.
To state a Fourteenth Amendment due process claim under Section 1983, "a plaintiff
must first identify a protected life, liberty or property interest and then prove that governmental
action resulted in a deprivation of that interest." Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir.
2001). "The threshold requirement of any due process claim is the government's deprivation of
a plaintiff's liberty or property interest." McCasland v. City of Castroville, 514 F. App'x 446,
448 (5th Cir. 2013) (per curiam) (quoting DePree v. Saunders, 588 F.3d 282, 289 (5th Cir.
2009». Therefore, unless Plaintiff has an entitlement that is sufficiently definite to be considered
a liberty or property interest, the Due Process clause does not come into play. See id.
A unilateral expectation of continued employment does not create a constitutionally
protected property interest. Evans v. City ofDallas, Tex., 861 F.2d 846,850 (5th Cir. 1988); see
also Bd. ofRegents ofState Colis. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548
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(1972) ("To have a property interest in a benefit, a person clearly must have ... more than a
unilateral expectation of it."). And property interests are not created by the Constitution. See
Roth, 408 U.S. at 577, 92 S. Ct. 2701. Rather, whether Plaintiff possessed such a property
interest is "determined by reference to state law," see Wells v. Hico Indep. Sch. Dist., 736 F.2d
243, 252 (5th Cir. 1984), and must "stem from independent sources such as state statutes, local
ordinances, existing rules, contractual provisions, or mutually explicit understandings," see
Blackburn v. City of Marshall. Tex., 42 F.3d 925, 936-37 (5th Cir. 1995). Under Mississippi
law, "[w]here there is no express contract of employment, a valid claim of entitlement must be
grounded in some other legal source, such as a state statute or local ordinance, or an implied
contract."
Harrison Cnty. Sch. Rd. v. Morreale, 538 So. 2d 1196, 1200 (Miss. 1989) (citing
Conley v. Rd. ofTrs. ofGrenada Cnty. Hosp., 707 F.2d 175, 179 (5th Cir. 1983); White v. Miss.
State Oil and Gas Rd., 650 F.2d 540, 541 (5th Cir. 1981».
According to Plaintiff, she had an expectation of continued employment as deputy circuit
clerk at the Circuit Clerk's Office in Oktibbeha County.
As stated above, this unilateral
expectation of continued employment alone does not create a property interest. Plaintiff further
alleges that Mississippi law provides its state employees due process protections and apparently
attempts to allege that Mississippi law creates a protectable property interest.
Defendants
Oktibbeha County and Glenn Hamilton argue that a deputy circuit clerk serves under the county
clerk and as such is an at-will employee.
Mississippi Code § 25-9-127 prohibits certain state entities from terminating their
employees "except for inefficiency or other good cause," and only after a written notice and a
hearing. MISS. CODE ANN. § 25-9-127(1). The Fifth Circuit has stated that Section 25-9-127(1)
"does create some property interest in jobs that fall within the ambit of that statute." See Lollar
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V.
Baker, 196 F.3d 603,607-08 (5th Cir. 1999). However, Mississippi Code § 9-7-126 provides
in pertinent part that deputy circuit clerks in Mississippi are "deemed employees of the county,"
and "[t]he [circuit] clerk shall select and supervise their public duties." MISS. CODE ANN. § 9-7
126(1). In addition, Mississippi Attorney General opinions on this topic are helpful persuasive
authority and are accorded deference. See Kneeland v. Nat 'I Collegiate Athletic Ass 'n, 850 F.2d
224,228 (5th Cir. 1988), cert. denied, 488 U.S. 1042, 109 S. Ct. 868, 102 L. Ed. 2d 991 (1989).
The Mississippi Attorney General has opined that although the county pays the deputy circuit
clerk as authorized under state statute, the deputy circuit clerk "is still [the circuit clerk's]
deputy." See Op. Miss. Att'y Gen. (Feb. 25, 1985). The Mississippi Attorney General has also
opined that the employment of the deputy circuit clerk is "at the will and pleasure of the Circuit
Clerk and may be terminated by the Clerk" See Op. Miss. Att'y Gen. (Oct. 18, 1983). In light of
all of the foregoing, the Court finds that Plaintiff has failed to allege a property interest in her
continued employment as deputy circuit clerk. Accordingly, Plaintiff s complaint fails to state a
Fourteenth Amendment due process claim under Section 1983.
ii. Equal Protection
Defendants Oktibbeha County and Glenn Hamilton further argue that Plaintiff has failed
to state a claim for equal protection and has merely included a passing reference in her complaint
to equal protection. Plaintiff alleges in her complaint that in addition to due process, "[s]he was
also entitled to equal protection under the law" and that "[ t]he actions of Defendants deprived
Plaintiff of [her] property right without due process of law in violation of her right to equal
protection." Pl.'s CompI. [2]
~
14, 15. The Court finds that Plaintiff has failed to allege any
facts supporting an equal protection claim. Accordingly, Plaintiffs complaint fails to state a
Fourteenth Amendment equal protection claim under Section 1983.
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iii. First Amendment Retaliation
Finally, Plaintiff claims that under Section 1983 Defendants tenninated her employment as
deputy circuit clerk for engaging in speech protected by the First Amendment. Defendants argue
that Plaintiff has failed to state a claim for First Amendment retaliation, because Plaintiff alleges in
her complaint she openly supported the circuit clerk's opponent in the 2011 circuit clerk election
against her duties ofloyalty to the circuit clerk.
To establish a Section 1983 free speech retaliation claim, Plaintiff must ultimately prove
that "(1) [s]he suffered an adverse employment action; (2) [s]he spoke as a citizen, and not as a
public employee, on a matter of public concern; (3) [her] interest in the speech outweighed the
employer's interest in promoting efficiency; and (4) the speech precipitated the adverse
employment action." See Briscoe v. Jefferson County, 500 F. App'x 274,277 (5th Cir. 2012) (per
curiam) (citing Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 164 L. Ed. 2d 689
(2006)). Plaintiff has alleged that she suffered an adverse employment action by being tenninated
from her position as deputy circuit clerk. See Pl.'s Compl. [2]
~
8, 10, 17. However, because
Plaintiff does not allege facts supporting that she was speaking as a citizen on a matter of public
concern, Plaintiff fails to state either a First Amendment free speech claim or a free speech
retaliation claim under Section 1983.
It is well established that "the First Amendment protects a public employee's right, in
certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti, 547
U.S. at 417, 126 S. Ct. 1951 (citations omitted). However, Plaintiff must show she was speaking
as a citizen, not as part of her public job. See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.
2008) (citing Mills v. City of Evansville, Ill., 452 F.3d 646, 647 (7th Cir. 2006)).
The Court's
focus is not on the content of Plaintiffs alleged speech, but rather "the role the speaker occupied
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when [s]he said it." See id. "'An employee is not speaking as a citizen-but rather in h[er] role
as an employee-when [s]he 'makes statements pursuant to h[er] official duties.' " See Haverda v.
Hays County, 723 F.3d 586, 598 (5th Cir. July 17,2013) (quoting Nixon v. City ofHouston, Tex.,
511 F.3d 494, 497 (5th Cir. 2007) (in tum quoting Garcetti, 547 U.S. at 421, 126 S. Ct. 1951)).
"Activities required by one's position or undertaken in the course of performing one's jobs are
activities pursuant to official duties." !d. (citing Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689,
693 (5th Cir. 2007)). Thus, "[ e]ven if the speech is of great social importance, it is not protected
by the First Amendment so long as it was made pursuant to the worker's official duties."
Williams, 480 F.3d at 692 (citing Garcetti, 547 U.S. at 421, 126 S. Ct. 1951).
In the case sub judice, Plaintiff alleges that she "openly supported" Democrat contender
Roberson for the circuit clerk position, and that "Plaintiffs support of Ms. Roberson in the election
was protected speech, association, and/or expression."
PI. 's Compi. [2]
mr
9, 17.
Plaintiff
maintains that this speech was a matter of public concern, because "[t]he circuit clerk election was
a matter of public concern." Id. Ijf 17.
As pointed out by Defendants Oktibbeha County and Glenn Hamilton, in Stegmaier v.
Trammell, 597 F.2d 1027 (5th Cir. 1979), the Fifth Circuit held that a deputy clerk is a "public
employee occupying a position of confidence, loyalty, and trust" and "may be discharged solely on
the ground of political affiliations without infringing her constitutional rights." Id. at 1029-1030.
Therefore, because Plaintiff alleges that her First Amendment rights were violated when she was
fired for openly supporting the circuit clerk's opponent in the circuit clerk election, Plaintiff has
failed to state a First Amendment claim under Section 1983.
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D. Conclusion
In sum, Plaintiffs complaint fails to state a claim upon which relief may be granted, and
thus must be dismissed in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Accordingly, the motion to dismiss [6] filed by Defendants Glenn Hamilton and
Oktibbeha County, Mississippi is GRANTED; the motion to dismiss [8] filed by Defendants
Marvel Howard, Daniel Jackson, John Montgomery, Orlando K. Trainer, and Joe Williams is
GRANTED; the motion to strike [22] filed by Defendants Oktibbeha County and Glenn Hamilton
is DENIED AS MOOT; all claims are DISMISSED; and this case is CLOSED.
A separate order shall issue in accordance herewith.
THIS, the tOday of September, 2014.
SENIOR JUDGE
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