Holmes v. All American Check Cashing, Inc. et al
ORDER denying 12 Motion to Dismiss. Signed by Neal B. Biggers on 3/30/2012. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:11CV007-B-A
ALL AMERICAN CHECK CASHING, INC.,
AND CITY OF INDIANOLA, MISSISSIPPI
This cause comes before the court upon the motion of defendant City of Indianola,
Mississippi, to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon due
consideration of the motion, response, and supporting and opposing authority, the court finds
that the motion is not well taken and shall be denied.
The plaintiff, Tamika Holmes, asserts that after her purse was stolen from her vehicle in
Memphis, Tennessee, on November 25, 2009, she promptly notified the Memphis Police
Department and filed a police report about the incident. Upon advice of the police officer who
interviewed her, the plaintiff contacted her credit card companies and credit bureaus to report the
incident and to have a fraud alert placed on her social security number.
The plaintiff alleges that on that same date an individual presented herself at the Olive
Branch, Mississippi office of defendant All American Check Cashing, Inc., (“All American”)
and identified herself as Tamika Holmes. The individual presented a check purporting to be
from Target in the amount of $774.30, and the check was cashed by All American, allegedly
after the defendant attempted to verify Holmes’ social security number. The plaintiff asserts that
All American was advised of the fraud alert placed on her social security number but cashed the
check anyway. Subsequently the individual or some other individual working in concert with
the individual traveled to Sunflower County, Mississippi, and cashed other checks using the
plaintiff’s misappropriated identity.
All American later reported to the Olive Branch Police Department that Tamika Holmes
had uttered a forgery in presenting the $774.30 check. The plaintiff was arrested by the Olive
Branch Police Department on January 14, 2010. While the plaintiff was under arrest in Olive
Branch, officials discovered an outstanding arrest warrant for the plaintiff from the Indianola,
Mississippi Police Department issued by defendant City of Indianola for the checks that had
been negotiated in Sunflower County through the misappropriation of the plaintiff’s identity.
The plaintiff contends that the passing of the checks in Sunflower County was caught on
video surveillance and that one of the Indianola police officers assigned to transport the plaintiff
had seen copies of the surveillance prior to meeting with her. This officer allegedly stated upon
meeting the plaintiff that she was not the individual who he had seen on the video negotiating the
checks as Tamika Holmes. Notwithstanding the officer’s knowledge that the plaintiff was not
the person seen negotiating the checks, defendant City of Indianola placed a bail in the amount
of $350,000.00 on Tamika Holmes.
While the plaintiff was incarcerated, the individual who had misappropriated the
plaintiff’s identity continued to negotiate checks in the name of Tamika Holmes. The plaintiff
alleges that the City was made aware that these crimes were continuing to be committed at a time
when the plaintiff was detained. Despite this knowledge, the defendant continued to charge and
detain the plaintiff and held her in jail for a period in excess of seven days.
The plaintiff filed the present action on January 14, 2011, and amended her complaint on
April 11, 2011, asserting claims against All American for negligence, gross negligence, and
intentional infliction of emotional distress and against the City of Indianola1 for civil rights
violations in arresting her without probable cause and detaining her and depriving her of liberty
with knowledge that she was not the party who committed the crimes and for establishing a bail
so excessive that it, in effect, amounted to a refusal of bail. The plaintiff asserts her claims
against the City of Indianola pursuant to 42 U.S.C. § 1981 et seq. Apparently she intended to
sue under 42 U.S.C. § 1983, as addressed below. The City of Indianola has moved to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely
granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). A court must
accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the
plaintiff. Id. But the court is not bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 129 S. Ct. at 1949-50.
The plaintiff initially sued Sunflower County by mistake instead of the City of Indianola but
dismissed the County by stipulation and included the proper defendant in the amended complaint.
A legally sufficient complaint must establish more than a “sheer possibility” that the
plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.
Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough
factual matter to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff’s claim. Lormand, 565 F.3d at 255-57. If there are insufficient factual
allegations to raise a right to relief above the speculative level or if it is apparent from the face of
the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly,
550 U.S. at 555; Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 &
n.9 (5th Cir. 2007).
The plaintiff brings her claims of civil rights violations against the City of Indianola
pursuant to 42 U.S.C. § 1981, which is inapplicable in the present case. Instead, she should have
cited 42 U.S.C. § 1983. The defendant has stipulated that the plaintiff’s failure specifically to
cite Section 1983 can be cured by amendment but argues that the plaintiff has not stated a claim
that is plausible on its face. The defendant contends, however, that “dismissal here is much
simpler than having to parse through whether or not an underlying constitutional violation is
plausible here” because the plaintiff premises her cause of action against the City upon an act of
agency or vicarious liability. The defendant contends that the following statement in the
plaintiff’s Amended Complaint mandates dismissal of the plaintiff’s claims against the City:
[T]hese actions were taken by Defendant City of Indianola, Mississippi, by and
through their actions or those of their agents.
The defendant asserts that the “claim is not plausible on its face because respondeat superior is
prohibited in a cause of action under 42 U.S.C. § 1983.”
“A supervisory officer cannot be held liable under § 1983 for the actions of subordinates
on any theory of vicarious liability.” Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir.
1985). Supervisory liability may exist, however, “without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional violation.”
Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir. 2002).
Despite the defendant’s contention to the contrary, the court is unpersuaded that this
action is based on the doctrine of respondeat superior or vicarious liability; and, at the very
least, the court finds dismissal of this case premature at this stage of the litigation. It is
axiomatic that in ruling on a Rule 12(b)(6) motion to dismiss, generally the court may not look
beyond the pleadings, and the court finds that the plaintiff’s Amended Complaint states a claim
against the City that is plausible on its face. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.
While the sentence from the Amended Complaint quoted above could technically be
interpreted as a claim of vicarious liability, when read as a whole, the Amended Complaint sets
forth sufficient allegations to meet the 12(b)(6) standard to the court’s satisfaction. To survive a
Rule 12(b)(6) motion to dismiss, “the complaint must contain either direct allegations on every
material point necessary to sustain a recovery . . . or contain allegations from which an inference
fairly may be drawn that evidence on these material points will be introduced at trial.” Campbell
v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995).
To state a claim under Section 1983, “a plaintiff must (1) allege a violation of a right
secured by the Constitution or laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under the color of state law.” Doe ex rel. Magee
v. Covington County Sch. Dist. ex rel. Keys, 2012 WL 976349, at *3 (5th Cir. 2012) (quoting
James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008)). The plaintiff alleges arrest
without probable cause, deprivation of liberty, and excessive bail.2 These are clearly claims of
constitutional violations. “The right to be free from arrest without probable cause is a clearly
established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). “The
Fourth Amendment provides an explicit textual source of constitutional protection concerning
pretrial deprivations of liberty . . . .” Levier v. Town of Port Barre, 1994 WL 242661, at *1, n.2
(5th Cir. 1994). “[A] prohibition against excessive bail exists even though there is no absolute
constitutional right to bail.” Broussard v. Parish of Orleans, 318 F.3d 644, 650 (5th Cir. 2003).
Further, the plaintiff specifically alleges “[t]hat all of [the defendant’s] actions were done under
the color of state law and done in compliance with the policies and procedures” of the defendant.
“The first requirement for imposing municipal liability is proof that an official
policymaker with actual or constructive knowledge of the constitutional violation acted on behalf
of the municipality.” Baker v. Holmon, 2010 U.S. Dist. LEXIS 106416, at *5-6 (N.D. Miss. Oct.
4, 2010) (citing Cox v. City of Dallas, Tex., 430 F.3d 734, 748-49 (5th Cir. 2005)). “A local
government entity may be sued ‘if it is alleged to have caused a constitutional tort through a
policy statement, ordinance, or decision officially adopted and promulgated by that body’s
The defendant asserts that an arrest warrant by a neutral intermediary eliminates the claim of
arrest without probable cause and that a bond set by a judicial officer eliminates a liberty interest claim,
but analysis of these arguments would require the court to look beyond the pleadings, and the court is
prohibited from doing so at this time.
officers.’” Id., at *4 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)). Though
the plaintiff refers to an individual officer who was aware that she was not the person negotiating
the checks at issue, the plaintiff certainly does not assert that he was the sole tortfeasor in this
action. See id., at *5 (“A municipality may not be subject to liability merely for employing a
The court finds that inferences fairly may be drawn from the Amended Complaint in the
present case that a “policymaker” acted on behalf of the City and that even “without overt
personal participation in the offensive act” a supervisory official may have implemented “a
policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving
force of the constitutional violation.” Cozzo, 279 F.3d at 289. A further inference may be drawn
that an “authorized policymaker approve[d] a subordinate’s decision and the basis for it”3 or
that the City’s “decision not to train certain employees about their legal duty to avoid violating
citizens’ rights may [have] rise[n] to the level of an official government policy for purposes of §
1983.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011).
Ultimately the plaintiff may be unable to direct the court to any evidence that would tend
to show the existence of a genuine issue of material fact regarding her allegations against the
City, and her Section 1983 claims may not survive a summary judgment motion. Her complaint
adequately states a claim upon which relief may be granted, however; and that is all that is
required at this stage of the litigation.
Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 691 (1978).
For the foregoing reasons, the court finds that the defendant’s motion to dismiss is not
well taken and should be denied. It is, therefore, ORDERED AND ADJUDGED that the
defendant’s motion to dismiss is DENIED. Further, the court will allow the plaintiff to file a
Second Amended Complaint to cure her mistake in citing the inappropriate statute in regard to
her claims against the City. The plaintiff should file her Second Amended Complaint no later
than fourteen days from this date.
This, the 30th day of March, 2012.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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