Smith v. DeSoto County Sheriff Dept. et al
MEMORANDUM OPINION, ORDER. Signed by District Judge Michael P. Mills on 8/14/2017. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:17-CV-40-MPM-RP
DESOTO COUNTY SHERIFF’S DEPT.,
SHERIFF BILL RASCO, DEPUTY CHARLES
MOHON, 4 UNKONWN DEPUTIES, et al.
MEMORANDUM OPINIONAND ORDER
This matter comes before the Court on Defendants DeSoto County Sheriff’s Department
(“DeSoto”), Sheriff Bill Rasco (“Rasco”), and Deputy Charles Mohon’s (“Mohon”) Motion to
Dismiss . Defendants assert that this suit is not the first that Plaintiff Frederick Smith “Smith”
has brought before this Court, and move that this Court dismiss the case under the doctrine of res
Magistrate Judge Percy noted in his Order Staying Case Pending Ruling on Motion to
Dismiss in this case that “[t]he subject lawsuit is Plaintiff’s sixth suit filed in the last five years
all concerning the same piece of property that has been foreclosed upon and from which the
plaintiff has been evicted” . In addition, Plaintiff has filed a seventh suit regarding this same
subject matter, which is pending following a Motion to Dismiss.1
The six other lawsuits include the following:
Fred Smith v. Bank of America, 2:11cv120‐MPM‐JMV;
Frederick and Tasha Smith v. Wells Fargo, et al., 3:14cv59‐MPM‐JMV;
Fred Smith v. Wells Fargo, 3:15cv92‐MPM‐JMV;
Fred Smith v. Wells Fargo, Brunini, et al., 3:16cv92‐SA‐SAA; and
Smith v. Drinkwater, Desoto County Sheriff’s Dept., et al., 3:16cv155‐DMB‐SA.
Fred Smith v. Bank of America, 3:17cv71‐MPM‐RP
These lawsuits all concern the eviction of Plaintiff from his home located at 7601 Broken
Hickory Drive, Walls, MS 38680. As summarized by Magistrate Judge S. Allan Alexander in her
Report and Recommendation regarding Plaintiff’s 2016 Smith v. Drinkwater, Desoto County
Sheriff’s Dept., et al. suit, “[t]he bottom line is that plaintiff, who had been living in the residence
on the property at issue since before the first lawsuit he filed in this court in 2011, up until his
eviction on May 26, 2016 wants to continue to live in the house despite multiple adjudications
that foreclosure was appropriate, and despite the fact that foreclosure sale and eviction now has
The first of the suits arising from this matter before the Northern District, Smith v. Bank
of America, was before this Court in 2011. That case was dismissed with prejudice for failure to
state a claim. The second and third of the cases, Smith v. Wells Fargo, et al. and Smith v. Wells
Fargo, were both dismissed by this Court in 2015as barred by res judicata. In the first of the
suits against Wells Fargo, this Court informed the Plaintiff that “any future lawsuits on this issue
will be subject to summary dismissal and, potentially, monetary sanctions.”3
The fourth suit, Smith v. Wells Fargo, Brunini, et al., was dismissed by Judge Sharion
Aycock, who additionally barred the Plaintiff from filing future in forma pauperis actions
without first seeking leave to file from a district judge of this Court. The fifth suit appeared
before District Court Judge Debra Brown, who also barred Smith from further applying in forma
pauperis in future suits before this Court. Further, Judge Brown informed Smith that “if [he]
elects to pay the filing fee and proceed with this action,” then he will be “taxed with the costs,
including reasonable attorney’s fees, incurred by the defendants,” should the claim be proven to
Smith v. Drinkwater, Desoto County Sheriff’s Dept., et al., 3:16cv155‐DMB‐SA., [Docket # 4, Page 4]
Frederick and Tasha Smith v. Wells Fargo, et al., 3:14cv59‐MPM‐JMV [Docket # 35, Page 5]
be duplicative or frivolous.4 Plaintiff Smith has not yet paid the filing fee in that suit following
the Judge’s order, and the case is subject to dismissal.
The sixth suit in the series is the instant suit currently before the Court. The seventh is
still pending before this Court, but a motion to dismiss has been filed against Smith by the
Defendants in that case as well. The present suit was properly removed from state court on
February 21, 2017 by the Defendants. On March 7, 2017, the Defendants filed their Motion to
Dismiss and Memorandum in Support, asking that the claims presented by the Plaintiff be
precluded by the doctrine of res judicata.
FRCP Rule 12(b)(6) Standard
Before the Court can grant a motion to dismiss, the Defendants must show that Plaintiff
has not met the relevant pleading standard to state a claim.
Defendants must show that
Plaintiff’s complaint fails to contain “enough facts to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Plaintiff’s complaint must set forth “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action” will not suffice. Colony Ins. Co. v. Peachtree Constr., Ltd.,
647 F.3d 248, 252 (5th Cir.2011) (quoting Twombly, 550 U.S. at 555 (2007)).
This Court has previously recognized that “the purpose of a Rule 12(b)(6) motion [is] to
test the formal sufficiency of the statement for relief; it is not a procedure to be invoked to
resolve a contest about the facts or the merits of a case.” Edwards v. Coldwell Banker Real
Estate Corp., 2006 WL 2404718, *1 (N.D. Miss. Aug. 18, 2006) (citing Murray v. Amoco Oil
Smith v. Drinkwater, Desoto County Sheriff’s Dept., et al., 3:16cv155‐DMB‐SA. [Docket #6, Page 4]
Co., 539 F.2d 1385 (5th Cir. 1976)). “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.” Gatheright v. Barbour, 2017 WL 507603, *3 (N.D. Miss. Feb. 6, 2017) (citing
Walker v. Webco Indus., Inc., 562 F. App’x 215, 216-17 (5th Cir. 2014) (per curiam)) (additional
citation omitted). It is the responsibility of the Court to now determine “whether the plaintiff has
stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of
success.” In re McCoy, 666 F.3d 924, 926 (5th Cir. 2012) (additional citations omitted).
Returning to the motion at hand, the Defendants have moved for dismissal under Rule
12(b)(6) under the argument that the claims presented by the Plaintiff are barred by claim
preclusion/res judicata, and hence no valid claims are presented in the motion. Under
Mississippi law, “[t]he doctrine of res judicata bars parties from litigating claims ‘within the
scope of the judgment’ in a prior action.” Hill v. Carroll Cty., 17 So.3d 1081, 1084 (Miss. 2009)
(quoting Anderson v. LaVere, 895 So.2d 828, 832 (Miss. 2004)). The doctrine is one of public
policy “designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial
resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent
decisions.” Id. (quoting Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 (Miss.
“[T]he doctrine of res judicata requires four identities to be present before it applies: (1)
identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the
parties to the cause of action; and (4) identity of the quality or character of a person against
whom the claim is made.” Id. (citing Harrison, 891 So.2d at 232). “If these four identities are
present, the parties will be prevented from relitigating all issues tried in the prior lawsuit, as well
as all matters which should have been litigated and decided in the prior suit.” Anderson, 895
So.2d at 832 (citing Pray v. Hewitt, 179 So.2d 842, 844 (Miss. 1965)) (additional citation
The Mississippi Supreme Court has referred to the first identity—the subject matter of
the action—as “identity in the thing sued for” or “the substance of the lawsuit.” Hill, 17 So.3d at
1085 (citations omitted). The subject matter presented by Smith in the present action and the six
other actions filed by Smith in the past six years all pertain to the same foreclosure and the
subsequent circumstances which led to his eviction from that piece of property.
The second identity of res judicata requires the plaintiff’s cause of action in both actions
to be the same. The Mississippi Supreme Court has defined “cause of action” as “the underlying
facts and circumstances upon which a claim has been brought.” Id. (citing Black v. City of
Tupelo, 853 So.2d 1221, 1225 (Miss. 2003)). This requirement is also satisfied here, as Smith
has filed a total of seven suits which pertain to the foreclosure and eviction process which
removed him from his property and home.
Next, there must be identity of the parties. This requirement is also satisfied. In this case,
identity of the parties is met because Smith previously named both Desoto County and Mahon as
defendants in one of his previous suits, Smith v. Drinkwater, Desoto County Sheriff’s Dept., et
al., 3:16-cv-155-DMB-SA, filed in July 2016.
Finally, there must be identity of the quality and character of a person against whom the
claim is made. Frankly, Mississippi law does not provide a clear explanation of this requirement.
See Hill, 17 So.3d at 1087 (“[T]his Court has not explicitly defined the identity of the quality or
character of a person against whom the claim is made[.]”). In practice, this requirement is often
conflated with the third requirement. See, e.g., City of Tupelo, 853 So.2d at 1225 (specifically
stating that four identities must be satisfied but treating the fourth identity as a coextensive part
of the third identity); Taylor v. Taylor, 835 So.2d 60, 65 (Miss. 2003) (noting four identities but
discussing only identity of the parties and cause of action).
This Court has determined, from this analysis, that Frederick Smith has sued regarding
the same event on multiple occasions, and that the Defendants’ motion to dismiss must be
granted under the law. On more than one occasion, this Court has informed Smith of the issues
with re-litigating this same set of circumstances, but Smith has continued to file similar suits in
this Court and in the state court system.
Accordingly, it is hereby, ORDERED that Defendants’ Motion to Dismiss  is
GRANTED. A separate judgment will be ordered this date, pursuant to Fed. R. Civ P. 58.
This the 14th day of August, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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