Brown v. City of Saltillo, Mississippi et al

Filing 26

MEMORANDUM OPINION re 25 Order on Motion to Dismiss, Bill Williams (in his official and individual capacity) terminated.. Signed by Senior Judge Glen H. Davidson on 5/7/15. (tab)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

OXFORD DIVISION

PLAINTIFF

PRENTICE BROWN

v.

CIVIL ACTION NO.: 3:14-cv-00207-GHD-SAA

CITY OF SALTILLO, MISSISSIPPI and
BILL WILLIAMS in his official and
individual capacity

DEFENDANTS

MEMORANDUM OPINION GRANTING
DEFENDANTS' PARTIAL MOTION TO DISMISS
Presently before the Court is a partial motion to dismiss [11] filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure by Defendants, the City of Saltillo, Mississippi
and Bill Williams. Upon due consideration, the Court finds that the motion is well taken and
should be granted. The Court further finds that Plaintiff's request for oral argument on the
motion is not well taken, as the same is not necessary to a ruling on the motion.

A. Factual and Procedural Background
On September 23, 2014, Plaintiff Prentice Brown ("Plaintiff"), former assistant chief of
police of the City of Saltillo, Mississippi, filed this action against Defendants, the City of
Saltillo, Mississippi ("the City") and Bill Williams in his official and individual capacity
("Williams"). Plaintiff asserts causes of action for First Amendment free speech retaliation
under 42 U.S.C. § 1983 and malicious interference with employment/contract under state law. l
Plaintiff alleges the following facts in support of his claims.

I Although Plaintiff also asserts a cause of action for First Amendment free speech violation under 42
U.S.C. § 1983, the facts he alleges in support of the claim do not pertain to Plaintiff and Defendants and were
apparently inadvertently inserted from a complaint in another case drafted by Plaintiffs counsel. Furthermore,
Plaintiff, a public employee, has only alleged facts in support of a First Amendment free speech retaliation claim.
Thus, to the extent Plaintiff has attempted to allege another type of First Amendment free speech violation claim, the
same is not well taken and must be dismissed.

1

Plaintiff alleges that the City hired him in approximately 2003 as a police officer and that
he was serving as assistant chief of police when he was "unconstitutionally fir[ ed]" from his
position on or about July 10, 2013. PI.'sAm. Compl. [8]

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11. Plaintiff further alleges that

"[p]rior to his unlawful termination, Plaintiff had performed his job duties without incident" and
that "[h]is record was pristine and there were no registered complaints lodged against him, nor
were there any suspensions or reprimands." Id.

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13. However, Plaintiff avers that "[t]his

changed when Plaintiff made statements and/or engaged in activity protected by the United
States Constitution Amendment One," specifically by openly supporting the then-chief of police,
Steven Brooks, a Democrat contender, in the 2013 Saltillo mayoral election. Id.

W 14-15.

Brooks did not win the mayoral race; instead, Saltillo elected Rex Smith, a Republican
contender, as mayor. Plaintiff avers that "[i]t was well-known throughout the community that
the out-going Mayor of Saltillo, [Williams], was a political adversary of [Brooks]," id.

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17, and

that "Williams had also disliked Plaintiff because Plaintiff was an outspoken critic" of Williams,
id.

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18. Plaintiff cites to a particular incident wherein "Plaintiff was present during a Saltillo

City Council Meeting in which [Williams] summoned Sergeant Grant Bailey ... and[ ] after
[Bailey] was sworn in under oath by the city clerk, [Williams] started to question [Bailey] about
his work hours pertaining to a Driving Under the Influence Grant." Id.

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18. Plaintiff alleges

that he "objected to [Williams'] questioning [Bailey] without [Bailey] having the benefit of a
lawyer at this meeting." Id.
Subsequently, Plaintiff avers, he received a telephone call from Williams, who was then
still current mayor of the City, during which conversation, "[Williams] stated that Plaintiff was
being suspended from his position as [a]ssistant [c]hief of [p]olice." Id.

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20. Plaintiff alleges

that when he asked Williams why he was being suspended Williams "refused to give Plaintiff a

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reason" and "told Plaintiff that Plaintiff did not need to know the reason." !d.

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22. Plaintiff

further alleges that Brooks, who was still acting chief of police and Plaintiff's supervisor,
expressed surprise at the suspension decision, as he had not received notice of the same.
Plaintiff maintains that although Williams never expressed a reason to him for the
suspension, Williams gave a reason to two local newspapers. ld.

~~

28-30. The referenced

newspaper articles, which are attached to Plaintiffs amended complaint, state that Williams'
reason for the suspension decision was that Plaintiff and other members of the police department
were intimidating those connected to the police department who were not loyal to Brooks'
mayoral campaign. See Newspaper Articles [8-1] at 1, [8-2] at 1. Furthermore, Plaintiff alleges
that on June 27, 2013, the City notified Plaintiff that he was suspended because he intimidated
the wife of Officer Randy Box concerning the mayoral election. PL's Am. Compl. [8]

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33.

Subsequently, on or about July 10, 2013-after Williams had left the office of mayor and
Rex Smith had become mayor-the City held a due process hearing; as a result, Plaintiff
maintains he was terminated from his position as assistant chief of police. Plaintiff avers that the
City used the media to harass Plaintiff and inflict injury to Plaintiffs character, reputation, and
future job prospects, particularly in their comments to a local television station. Plaintiff further
avers that Williams' comments to the media and throughout the due process hearing were "the
impetus for Plaintiff's termination," and that his termination was in retaliation for his support of
Brooks in the Saltillo mayoral election. ld.

~ 45.

On December 22, 2014, Defendants filed both the present partial motion to dismiss [11]
pursuant to Rule 12(b)(6) and an answer [15] to Plaintiffs amended complaint [8]. Plaintiffhas
filed a response, and Defendants have filed a reply.

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B. Federal Rule o/Civil Procedure 12(b)(6) Standard
Motions to dismiss pursuant to Rule 12(b)(6) "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». When deciding a Rule
12(b)(6) motion to dismiss, the Court is limited to the allegations set forth in the complaint and
any documents attached to the complaint. Walker v. Webco Indus., Inc., 562 F. App'x 215,216­
17 (5th Cir. 2014) (per curiam) (citing Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d
833, 839 (5th Cir. 2004».
"[A plaintiffs] complaint therefore 'must contain sufficient factual matter, accepted as
true, to "state a claim to relief that is plausible on its face." , " Phillips v. City

0/ Dallas,

Tex.,

781 F.3d 772, 775-76 (5th Cir. 2015) (quoting Ashcrofl v. Iqbal, 556 U.S. 662, 678,129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,570, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007»). A claim is facially plausible when the pleaded factual
content "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (citing Twombly, 550 U.S. at 556,
127 S. Ct. 1955). "[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 o/Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th
Cir. 2010) (internal quotation marks omitted». "[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id.
(quoting Fernandez-Montes v. Allied Pilots Ass 'n, 987 F.2d 278, 284 (5th Cir.1993) (internal
quotation marks omitted». "Dismissal is appropriate when the plaintiff has not alleged 'enough
facts to state a claim to relief that is plausible on its face' and has failed to 'raise a right to relief

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above the speculative leveL'" Emesowum v. Hous. Police Dep't, 561 F. App'x 372, 372 (5th
Cir. 2014) (per curiam) (quoting Twombly, 550 U.S. at 555,570, 127 S. Ct. 1955).
C. Analysis and Discussion

Defendants present several arguments in support of dismissal of certain claims by
Plaintiff: (1) that Plaintiff's First Amendment free speech retaliation claim based on Plaintiffs
suspension with pay is not tenable; (2) that Plaintiffs First Amendment free speech retaliation
claim based on Williams' alleged statements to the media is not tenable; (3) that Williams is
qualifiedly immune from suit on these theories, as the same are not clearly established law; and
(4) that the malicious interference with employment/contract claim (asserted solely against
Williams) must be dismissed because Plaintiff failed to comply with the prerequisites of suit on
such a claim under the Mississippi Tort Claims Act (the "MTCA"). The Court will examine
each argument in tum.
1. Free Speech Retaliation Claim

Plaintiff urges his First Amendment free speech retaliation claim through § 1983, which
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 § 1983, a plaintiff must [1] allege the violation ofa
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. Atkins,
487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (citing cases). The Fifth Circuit has

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instructed that to sustain a § 1983 claim, a plaintiff is required to assert "claims of specific
conduct and actions giving rise to a Constitutional violation." See Baker v. Putnal, 75 F.3d 190,
195 (5th Cir. 1996) (emphasis added).
Plaintiff claims that Defendants terminated him from his employment as assistant chief of
police for the City in retaliation for engaging in speech protected by the First Amendment, and
that Defendants otherwise violated his First Amendment free speech rights in violation of §
1983.
"The government may not constitutionally compel persons to relinquish their First
Amendment rights as a condition of public employment." Harris v. Victoria Indep. Sch. Dist.,
168 F.3d 216, 220 (5th Cir. 1999). "Speech by citizens on matters of public concern lies at the
heart of the First Amendment, which 'was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people[.]' " Lane v. Franks,­
U.S. - , 134 S. Ct. 2369, 2377, 189 L. Ed. 2d 312 (June 19, 2014) (quoting Roth v. United

States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)). "In order for a public
employee to recover for a free speech retaliation claim, the plaintiff must satisfy four elements:
'(1) the plaintiff must suffer an adverse employment decision; (2) the plaintiffs speech must
involve a matter of public concern; (3) the plaintiffs interest in commenting on matters of public
concern must outweigh the defendant's interest in promoting efficiency; and (4) the plaintiffs
speech must have motivated the defendant's actions." Cox v. Kaelin, 577 F. App'x 306, 310 (5th
Cir. 2014) (per curiam) (quoting Finch v. Fort Bend Indep. School Dist., 333 F.3d 555,563 (5th
Cir. 2003)).
Defendants argue that Plaintiffs suspension with pay and Williams' alleged statements to
the media about the suspension decision do not constitute viable adverse employment actions

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upon which Plaintiff can

~eek

First Amendment relief.

Defendants do not challenge that

Plaintiffs termination constitutes a viable adverse employment action upon which Plaintiff can
seek First Amendment relief.
Plaintiff s amended complaint does not specify an adverse employment action, but asserts
that Plaintiff was suspended and then terminated from his position as assistant chief of police.
See Pl.'s Am. CompI. [8] ~ 11-13,20-23, 37. In his response to the partial motion to dismiss,

Plaintiff clarifies that the suspension was with pay. See Pl.'s Mem. Br. Supp. Resp. Opp'n to
Defs.' Partial Mot. Dismiss [19] at 10-11. Plaintiff alleges that Williams informed the local
media of the reason for Plaintiff s suspension "with the sole purpose of inflicting injury to
Plaintiffs character, reputation, and future job prospects," PI.'s Am. Compi. [8]

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28-31, 42;

that "Williams['] malicious actions towards Plaintiff, as detailed by various media outlets and
throughout the due process hearing, were the impetus for Plaintiffs tennination, id.

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45; and

states in his response that "Williams used the spotlight to attack Plaintiff both personally and
professionally" and that "[s]uch rhetoric was so over the top that it constituted an adverse
employment action because it assailed Plaintiff s character and mental stability as to undermine
community confidence in Plaintiffs ability to perform his job duties as [a]ssistant [c]hief of
[p]olice," Pl.'s Mem. Br. Supp. Resp. Opp'n to Defs.' Partial Mot. Dismiss [19] at 11.
The Court's task at this juncture is merely to determine whether Plaintiff has stated a
viable claim for relief, not whether he will ultimately prevail on the claim. With that limitation
in mind, the Court turns to examine whether Plaintiffs allegations of suspension with payor
Williams' alleged statements to the media constitute a cognizable adverse employment action
upon which his First Amendment free speech retaliation claim can be based.

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"Adverse employment actions are discharges, demotions, refusals to hire, refusals to
promote, and reprimands." Pierce v. Tex. Dep't of Criminal Justice, Institutional Div., 37 F.3d
1146, 1149 (5th Cir. 1994). The Fifth Circuit "has 'declined to expand the list of actionable
actions, noting that some things are not actionable even though they have the effect of chilling
the exercise of free speech.' " Benningfield v. City ofHouston, Tex., 157 F.3d 369, 376 (5th Cir.
1998) (quoting Pierce, 37 F.3d at 1150). "The reason for not expanding the list of adverse
employment actions is to ensure that § 1983 does not enmesh federal courts in 'relatively trivial
matters.' " Breaux v. City of Garland, Tex., 205 F.3d 150, 157 (5th Cir. 2000) (quoting Dorsett
v. Bd. ofTrs., 940 F.2d 121, 123 (5th Cir. 1991».
A temporary suspension without pay has been found to be an adverse employment action
within the context of a First Amendment retaliation claim. See Hypolite v. City ofHouston, Tex.,
493 F. App'x 597, 606 (5th Cir. 2012) (per curiam); Wilson v. City ofBaton Rouge, La., 327 F.
App'x 497,498 (5th Cir. 2009) (per curiam); LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d
383,390 (5th Cir. 2007). A temporary suspension with pay has not been found to be an adverse
employment action-if followed by reinstatement and no loss of benefits. See Stewart v. Miss.

Transp. Comm 'n, 586 F.3d 321, 331-32 (5th Cir. 2009); Breaux, 205 F.3d at 158 ("Although
Breaux was placed on administrative leave from late April to July 1994, Breaux was paid while
on leave and returned to his pre-leave position. Thus, Breaux suffered no adverse action with
respect to the leave.") (footnote omitted); Benningfield, 157 F.3d at 378 (plaintiff did not suffer
adverse employment action when promotion was delayed two years in response to her exercising
her free speech rights because she eventually received the promotion with retroactive pay and
seniority). Accord Brown v. City ofSyracuse, NY., 673 F.3d 141, 144 (2d Cir. 2012); Peltier v.

United States, 388 F.3d 984, 988 (6th Cir. 2004) ("[A] suspension with pay and full benefits

8

pending a timely investigation into suspected wrongdoing is not an adverse employment
action."). "Some benefit must be denied or some negative consequence must impinge on the
Plaintiffs employment before a threat of discharge is actionable." Breaux, 205 F.3d at 159.
In this case, Plaintiff was suspended with pay, but was never reinstated to his position
before his due process hearing and subsequent termination. This is a close question of law, but
given the Fifth Circuit's reluctance to expand the definition of adverse employment action, this
Court finds that Plaintiffs First Amendment free speech retaliation claim cannot be cognizably
based on his suspension with pay. Accordingly, Defendants' partial motion to dismiss [11] shall
be granted on this ground as to both the City and Williams.
Williams' alleged statements to the media concerning the reason for the decision to
suspend Plaintiff from his employment could be a cognizable basis for Plaintiff's First
Amendment free speech retaliation claim. However, because the law in this area is not clearly
established, Williams is entitled to qualified immunity.
In Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999), the Fifth Circuit was confronted
with a somewhat similar set of allegations and stated:
Colson has alleged only that she was the victim of criticism, an
investigation (or an attempt to start one), and false accusations: all
harms that, while they may chill speech, are not actionable under
our First Amendment retaliation jurisprudence. She maintains that
"[i]n retaliation for Colson's expressive activity, from December
1992 through May 1994 and beyond, Defendants conspired
together to falsely brand Colson and two of her fellow Council
members, Deloss A. Miller and Benny Frank: as criminals." As
part of this scheme, Colson claims, Hogg distributed "Pearland
Pandemonium" even though "he knew or should have known that
the allegations contained in his report were false and would
stigmatize Colson, Frank:, and Miller and cast them in a false light
in the Pearland community." The defendants' actions in this
respect constitute no more than the making of false accusations,
which is not actionable under § 1983. Colson also asserts that
"Hogg and Grohman, relying on information they knew to be false
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or with reckless disregard to the truthfulness of the same,
repeatedly urged the Brazoria County Attorney's office to indict
Colson, Frank and Miller and/or publicly brand them as criminals."
These actions are again no more than false accusations and, even
insofar as the County Attorney's Office did investigate them, are
not actionable under § 1983. Finally, Colson claims that the
defendants circulated two sets of recall petitions, even though
"they knew or should have known that the allegations contained in
the Petitions were false and would stigmatize Colson, Frank, and
Miller and cast them in a false light in the Pearland community."
The allegations contained in the recall petitions are, like those
made to the County Attorney's Office and to the general public,
mere accusations that are not actionable under § 1983.
Id. at 512; see Breaux, 205 F.3d at 159 n.15 ("The other verbal criticisms that the Plaintiffs

allege took place at the chain of command board hearings are not adverse employment
actions."); Harrington v. Harris, 118 F.3d 359 366 (5th Cir. 1997) (mere accusations or criticism
do not constitute adverse employment actions). However, the allegations could be actionable if
they amount to a "campaign of retaliatory harassment [that] rise to such a level as to constitute a
constructive adverse employment action." See Colson, 174 F.3d at 514.
In the case sub judice, Plaintiffs allegations that Williams made false statements to the
media in an attempt to damage Plaintiff s reputation are quite similar to those in Colson that
were not actionable under § 1983-except that in this case Plaintiff alleges that Williams'
statements to the media "were the impetus for Plaintiffs termination" by the City. Pl.'s Am.
Compl. [8] ~ 45. Plaintiff possibly alleges a cognizable First Amendment free speech retaliation
claim based on Williams' alleged malicious statements to the media. However, Williams is
nonetheless entitled to qualified immunity for the following reasons.
"Qualified immunity 'gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.' " Lane, 134 S. Ct. at 23 81 (quoting Ashcroft v.
al-Kidd, 563 U.S. - - , --,131 S. Ct. 2074, 2085,179 L. Ed. 2d 1149 (2011)). "'When a

10

defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.' " Beaulieu v. Lavigne, 539 F. App'x 421, 424 (5th Cir. 2013)
(per curiam) (quoting Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing
McClendon v. City o/Columbia, Miss., 305 F.3d 314, 323 (5th Cir. 2002) (en banc»). To negate

the defense of qualified immunity, Plaintiff must plead sufficient facts to make it plausible that
Williams' conduct: (1) violated a "clearly established federal constitutional right;" and (2) was
not "objectively reasonable in light of clearly established law." Nunez v. Simms, 341 F.3d 385,
387 (5th Cir. 2003).
The relevant question for qualified immunity purposes at this Rule 12(b)(6) stage is this:
Could Williams reasonably have believed,

~t

the time Plaintiff was suspended, that Williams'

statements to the media concerning the reasons for the suspension constituted behavior that was
in violation of the First Amendment? This Court is of the opinion that case law would not put a
reasonable official on notice that this conduct would constitute a violation of the First
Amendment. Accordingly, the Court finds that because the law is not clearly established in this
area, Williams is entitled to qualified immunity on the claim.
Furthermore, the Court finds unpersuasive Plaintiffs theory that Williams can be held
liable under the First Amendment based on Plaintiffs termination from his employment with the
City based on a "cat's paw" theory. Plaintiff alleges that on July 10, 2013, after Williams left
office and Rex Smith took office as mayor and while Plaintiff was still on suspension, the City
held a due process hearing that resulted in Plaintiffs termination. Pl.'s Am. Compl. [8]

W 36­

37. As Defendants correctly argue, liability for Plaintiffs termination can rest only with the
decisionmaker, which could not have been Williams, since he was no longer in office as mayor

11

and did not cast a vote for or against the termination. Therefore, Williams must be dismissed as
a party to the First Amendment retaliation claim on this ground, as well.
This is not to say that Plaintiff cannot advance a "cat's paw" theory against the City by
alleging that Williams was the "cat's paw" of the Board of Aldermen, who acted with retaliatory
motives. In Gee v. Principi, 289 F.3d 342 (5th Cir. 2002), the Fifth Circuit stated that although
in the determination of "whether an adverse employment action was taken as a result of
retaliation, our focus is on the fmal decisionmaker[,]" it is also true that "when the person
conducting the final review serves as the 'cat's paw' of those who were acting from retaliatory
motives, the causal link between the protected activity and the adverse employment action
remains intact." /d. at 346. At this stage of the litigation, Plaintiffs theory that Williams was
the "cat's paw" of the Board of Aldermen can be used to support the causation element of his
First Amendment retaliation claim against the City.

However, it is clear that the First

Amendment retaliation claim must be dismissed against Williams, as Plaintiff has not alleged
facts demonstrating liability on the part of Williams. Accordingly, the First Amendment free
speech retaliation claim against Williams is properly dismissed in its entirety.

2. Malicious Interference with Employment/Contract Claim Against Williams
Only
Finally, Defendants' partial motion to dismiss challenges the supplemental state-law
claim for malicious interference with employment/contract against Williams on the grounds that
Plaintiff failed to comply with the notice requirement in the MTCA and cannot correct this
deficiency at this late stage because the one-year statute oflimitations has run on the claim.
Plaintiff does not dispute that he did not comply with the notice requirements of the
MTCA before filing this action, but argues that the claim falls outside the purview of the MTCA,
because Williams acted outside the scope of his employment by speaking to the media about
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Plaintiffs suspension before the due process hearing took place. Plaintiff further maintains that
even if the claim falls within the purview ofthe MTCA the Court should permit Plaintiffleave to
file his notice of claim with the City and amend his complaint. Finally, Plaintiff argues that the
applicable statute of limitations on this claim is three years, not one year as contended by
Defendants.
Defendants cite two cases which are dispositive in this area of the law. In Whiting v.
University of Southern Mississippi, 62 So. 3d 907 (Miss. 2011), the Mississippi Supreme Court

ruled that a malicious interference claim is subject to the MTCA and thus that the notice
requirement applies to such claims. Id. at 916. Subsequently, in 2013, the Fifth Circuit held in
accordance with Whiting-the most recent Mississippi State Court decision in the area of the
law-that malicious interference claims are subject to the MTCA. See Johnson v. City ofShelby,
Miss., 743 F.3d 59, 61 (5th Cir. 2013), cert. granted,judgment rev'd on other grounds, 135 S.

Ct. 346 (2014). Mississippi case law is now clear that malicious interference claims fall within
the purview of the MTCA.

Accordingly, Plaintiff's malicious interference claim against

Williams is deficient for failure to comply with the MTCA's notice requirements.
The Court further finds that the malicious interference claim against Williams, as an
MTCA claim, is subject to a one-year statute of limitations. See id. However, in accordance
with Mississippi Supreme Court precedent, "a properly served complaint-albeit a complaint
that is wanting of proper pre-suit notice-should still serve to toll the statute of limitations until
there is a ruling from the trial court." Price v. Clark, 21 So. 3d 509, 522 (Miss. 2009). Failure to
comply with the MTCA's notice requirements would ordinarily mandate dismissal of the
malicious interference claim without prejudice to give the plaintiff an opportunity to file suit
within the one-year statute of limitations. See id. In a 2015 case, the Mississippi Supreme Court

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reiterated this holding, thus solidifying it as the settled law in this area. See Tallahatchie Gen.
Hosp. v. Howe, 154 So. 3d 29,32 (Miss. 2015).
However, in this case, Plaintiff's tennination occurred on July 10, 2013. Any alleged
malicious acts by Williams that led to his termination would have occurred prior to the
tennination and when Williams was still in the office of mayor. Plaintiff's case was filed on
September 23, 2014, approximately one year and two months after his tennination. Accordingly,
even though Plaintiff would be permitted to refile his wrongful termination claim and serve
proper notice on Williams under the MTCA if his case had been filed within the one-year statute
of limitations, it is clear that the one-year statute of limitations had already been exceeded by the
filing of Plaintiffs initial complaint and thus a dismissal "without prejudice" would serve no
purpose. Therefore, Plaintiff's malicious interference with employment/contract claim against
Williams must be dismissed with prejudice.
D. Conclusion
In sum, the Court finds that Defendants' partial motion to dismiss [11] shall be

GRANTED; Plaintiff s First Amendment free speech retaliation claims against Defendant Bill
Williams in his official and individual capacity shall be DISMISSED; Plaintiffs malicious
interference with employment/contract claim against Defendant Bill Williams in his official and
individual capacity shall be DISMISSED; and Defendant Bill Williams in his official and
individual capacity shall be DISMISSED AS A PARTY TO THE ACTION.
Plaintiff s remaining First Amendment free speech retaliation claim against Defendant
the City of Saltillo, Mississippi was unchallenged in Defendants' partial motion to dismiss [11]
and will proceed.

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'rP-­

THIS, the

'r:.y

of May, 2015.

SENIOR U.S. DISTRICT JUDGE

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