Upchurch v. City of Moss Point et al
Filing
33
ORDER granting in part and denying in part 20 Motion to Dismiss Signed by Chief District Judge Louis Guirola, Jr on 10/26/2011 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOSEPH MICHAEL UPCHURCH
§
§
v.
§
§
CITY OF MOSS POINT, MOSS
§
POINT POLICE DEPARTMENT,
§
and SHEILA SMALLMAN, BOBBY
§
JOHNSON, ANEICE LIDDELL,
§
TOMMY HIGHTOWER, GEORGE
§
MARTIN, SHERWOOD BRADFORD, §
SHIRLEY CHAMBERS, RUBY
§
HILL, HOUSTON CUNNINGHAM,
§
and ROBERT BYRD, in their
§
individual capacities
§
§
PLAINTIFF
CAUSE NO. 1:10cv228-LG-RHW
DEFENDANTS
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
BEFORE THE COURT is Defendants’ [20] Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff Upchurch, a former police officer,
filed this lawsuit against the City of Moss Point (“the City”) and the Moss Point Police
Department (“the police department”), as well as Chief of Police Sheila Smallman,
Deputy Chief of Police Bobby Johnson, Mayor Aniece Liddell, Alderman Tommy
Hightower, Alderman George Martin, Alderman Sherwood Brandford, Alderman
Shirley Chambers, Alderman Ruby Hill, Alderman Houston Cunningham, and
Alderman Robert Byrd in their official and personal capacities (hereinafter “the
individual defendants”) after he was terminated from the Moss Point Police
Department. Upchurch alleges discrimination based on race in violation of Title VII,
42. U.S.C. § 1983, 42 U.S.C. § 1981, and 42 U.S.C. § 1985.
He also alleges a
constitutional tort claim under Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and a state law defamation claim.
Defendants have filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) and the Mississippi Tort Claims Act, Miss Code Ann. §§ 11-46-1 et
seq. Upchurch opposes the motion in a response [25]. The Court has considered the
briefs and relevant legal authority. For the following reasons, Defendants’ Motion to
Dismiss [20] is GRANTED in part and DENIED in part.
STANDARD OF REVIEW
In considering a motion to dismiss, the court accepts as true all well-pleaded
facts and views them in the light most favorable to the plaintiff. Baker v. Putnal, 75
F.3d 190, 196 (5th Cir.1996). However, a court is not bound to accept legal conclusions
couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). The
plaintiff must plead sufficient facts to state a claim for relief that is facially plausible.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); 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.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S.
at 570.)
FACTS
This civil rights action arises from Plaintiff Upchurch’s termination from his
2
employment with the Moss Point Police Department. The facts as Upchurch has
alleged them are as follows.
Upchurch began working as a patrolman for the Moss Point Police Department
in October 2001. (Compl. at 4 (¶ 20)). He was promoted to the rank of lieutenant
sometime during the course of his employment with the police department, which
encompassed a period of over eight years. (Compl. at 4-5 (¶ 20)).
Upchurch alleges that as a white police officer, he was subjected to racially
discriminatory treatment at work. Specifically, Upchurch points to the fact that in
January 2009, Chief of Police Sheila Smallman referred to Upchurch as “white boy” in
the presence of an African-American detective. (Compl. at 6 (¶ 26)). The same month,
Smallman appointed African-American officers to the positions of detective and
corporal, without posting the positions or following the required civil service
regulations for hiring for those positions. (Compl. at 5 (¶ 25)). Upchurch claims he
was qualified for those positions, but he and other white officers were not given the
opportunity to compete for them.1 Id. Upchurch also alleges that in December 2008,
Chief Smallman reassigned Upchurch from the night shift to the day shift, even though
Upchurch had informed her that he would be attending classes during the day
beginning in January 2009. (Compl. at 7 (¶ 30)). Upchurch claims a similarly-situated
African-American employee was not treated this way. Id. Upchurch also alleges that
1
According to the complaint, in February 2009, the Moss Point Civil Service
Commission issued a decision stating that the promotions of the African-American
officers should be made temporary, and that the positions should be posted for hiring
in accordance with the Civil Service Commission rules. (Compl. at 6 (¶ 27)).
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at some point after he had filed an internal complaint about discrimination, Chief
Smallman told him he would be “punished” if he filed another complaint. (Compl. at
9 (¶ 36)).
In March 2009, Upchurch filed an EEO Complaint alleging discrimination based
on his race and gender, citing the facts that he was denied promotion, denied a new
patrol car despite being entitled to one based on seniority, and that he was given
unfavorable work schedules.
(Compl. at 6 (¶ 27)).
The following month, in April
2009, Deputy Chief of Police Johnson issued a written reprimand against Upchurch for
failing to appear in court, even though Upchurch had not received a subpoena and had
notified his supervisor of his absence. (Compl. at 6 (¶ 29)). Upchurch claims that
Johnson did not treat African-American employees in this manner. Id. Additionally,
Upchurch alleges that in February 2009, Deputy Chief Johnson took away Upchurch’s
take-home car privileges, but did not take those privileges away from any other
officers. (Compl. at 6 (¶ 28)).
On February 3, 2010, Upchurch was terminated from his position with the police
department by the Mayor and the City’s Board of Aldermen. (Compl. at 7 (¶¶ 31, 46)).
Upchurch claims that African-American officers had committed infractions similar to
or worse than those alleged as the grounds for his own termination, but those AfricanAmerican officers were not terminated for their infractions. (Compl. at 7 (¶ 31)).
Following his termination, Upchurch’s duties were assumed by an African-American
officer, despite the fact that a white officer who, according to Upchurch, was more
qualified, had tried to apply for the position. (Compl. at 7 (¶ 32)). On February 8, 2010,
4
Police Chief Smallman announced to approximately thirty individuals that the police
department would take retaliatory action, including termination, against anyone who
assisted Upchurch with his claims against the police department. (Compl. at 11 (¶ 47)).
Upchurch also makes other more general factual allegations, including that he
and other similarly situated white employees were excluded from training sessions and
other opportunities that would have enabled them to be eligible for promotions or
transfers. (Compl. at 8 (¶ 33)). He also alleges that Police Chief Smallman and other
defendants made false accusations to third parties regarding Upchurch’s
professionalism and work performance. (Compl. at 15 (¶ 58)).
DISCUSSION
I. Claims Against the Moss Point Police Department
Defendants move to dismiss Upchurch’s claims against the Moss Point Police
Department on the grounds that the police department lacks the capacity to be sued
under Mississippi law. Plaintiff Upchurch argues that because Defendants have not
produced evidence that the City has not granted the police department the capacity to
engage in separate litigation, Defendants’ motion should fail.
The capacity of an entity to sue or be sued “shall be determined by the law of the
state in which the district court is held.” Fed.R.Civ.P. 17(b); Darby v. Pasadena Police
Dep’t, 939 F.2d 311, 313 (5th Cir. 1991). The Fifth Circuit has explained that in order
for a plaintiff to sue a city department, it must “enjoy a separate legal existence.”
Darby, 939 F.2d at 313 (affirming dismissal of claims against Pasadena Police
Department because plaintiff failed to show that the City had granted its police
5
department the capacity to engage in separate litigation; therefore, the police
department did not exist as a legal entity for the purposes of the lawsuit) (citations
omitted).
This Court has previously addressed the issue of whether a police department
is a separate legal entity with the capacity to be sued under Mississippi law. In
Stewart v. Jackson County, this court considered the question sua sponte pursuant to
Federal Rule of Civil Procedure 41, and held that “[u]nder Mississippi law, a city’s
police department is not considered to be an entity separate from the city.” Stewart v.
Jackson Co., Miss., No. 1:07-CV-1270-WJG-JMR, 2008 WL 4287112 at *1 (S.D. Miss.
Sept. 16, 2008) (citing Miss. Code Ann. § 21-17-1). Stewart’s claims against the Biloxi
Police Department were dismissed because the department was not a proper party to
the lawsuit. Id. at *1 (citing Darby v. Pasadena Police Dep’t, 939 F. 2d 311, 313 (5th
Cir. 1991)). See also Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)(“[P]olice
departments are not usually considered legal entities subject to suit[.]”)
The Moss Point Police Department is not a proper defendant because, as a
matter of state law, it is not a separate legal entity for purposes of litigation. There is
no indication that the Moss Point Police Department enjoys a separate legal existence
from the City. Accordingly, Upchurch’s claims against Defendant Moss Point Police
Department are dismissed.
II. Title VII Claims
Defendants move to dismiss Upchurch’s claims under Title VII against the
individual defendants. Defendants argue that employees cannot be sued in their
6
individual capacities under Title VII, and that the individual defendants cannot be
held liable if the employer, the City, is a named defendant. Upchurch’s response does
not address Defendant’s motion to dismiss regarding Title VII.
Under Title VII, it is illegal “for an employer to . . . . discharge any individual,
or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1). In order for an individual to be liable under Title VII, he or she
must meet title VII's definition of “employer.” Grant v. Lone Star Co., 21 F.3d 649, 653
(5th Cir. 1994). Title VII defines “employer” as: “a person engaged in an industry
affecting commerce who has fifteen or more employees . . . . and any agent of such a
person[.]” 42 U.S.C. § 2000e(b). “The term ‘person’ includes one or more individuals,
governments, governmental agencies, political subdivisions . . . .” 42 U.S.C. § 2000e(a).
Although Title VII defines “employer” to include any agent of the employer, the
Fifth Circuit does not interpret the statute to impose individual liability on the agent.
Jackson v. David Wade Corr. Ctr., No. 07-CV-1420, 2008 WL 4500325 at *4 (W.D. La.
Oct. 6, 2008) (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.
1999) (affirming Rule 12(b)(6) dismissal where trial court held that employees may not
be sued for damages in their individual capacities)). The Fifth Circuit has held that
“relief under Title VII is available only against an employer, not an individual
supervisor or fellow employee.” Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 (5th
Cir. 2003) (citing Grant, 21 F.3d at 651-53); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376, 381 (5th Cir. 2003) (“Individuals are not liable under Title VII in either their
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individual or official capacities”).
Here, the individual defendants do not meet the definition of “employer” under
Title VII. Upchurch may proceed with his Title VII claims against the City, but the
individual defendants are not liable under Title VII. Accordingly, Defendants’ motion
to dismiss Upchurch’s Title VII claims against the individual defendants is GRANTED.
III. Claims Against the Individual Defendants under Sections 1983 and 1981
Defendants move to dismiss Upchurch’s claims under 42 U.S.C. § 1983 and 42
U.S.C. § 1981 against the individual defendants in their official and personal
capacities. Section 1983 imposes liability upon any person who, acting under color of
state law, deprives another of federally protected rights. Section 1983 does not itself
create any federally protected right, but creates a cause of action for persons to enforce
federal rights created elsewhere, including other federal statutes and the United States
Constitution. Chapman v. Houston Welfare Rights Org., 441, U.S. 600, 608 (1979)
(Section 1983 “creates no substantive rights; it merely provides remedies for
deprivations of rights established elsewhere.”). Upchurch has alleged Defendants
deprived him of his equal protection and due process rights under the 14th Amendment
to the United Constitution. Upchurch’s § 1983 claims are against all Defendants,
including the individual defendants in both their official and personal capacities.
Section 1981 provides that all persons “have the same right to make and enforce
contracts . . . as is enjoyed by white citizens.”2 It “is designed to include a federal
2
Section 1981 prohibits racial discrimination against Caucasians as well as
persons of other races. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 296
8
remedy against discrimination in employment on the basis of race.” Adams v.
McDougal, 695 F.2d 104 (5th Cir. 1983) (citing Johnson v. Ry. Express Agency, 421 U.S.
454, 459-60 (1975)). Upchurch’s 1981 claims are also against all Defendants, including
the individual defendants in both their official and personal capacities.
The law of this Circuit is that § 1981 claims may not proceed independently
against a government actor in his official capacity. Oden v. Oktibbeha County, Miss.,
246 F.3d 458 at 463-64 (5th Cir. 2001) (relying on Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 731 (1989)). Instead, § 1981 claims must be brought through § 1983. Id.
Defendants move to dismiss all of Upchurch’s claims under § 1981 if those claims were
brought independently, and not alleged under § 1983.
(Def.’s Mot. at 4, fn 1.)
Upchurch submits that his § 1981 claims are brought through § 1983 and as an
independent cause of action. (Plaintiff’s Resp. at 7).
Upchurch’s equal right to make and enforce contracts is guaranteed by § 1981,
but his cause of action for a violation of that right must be alleged under § 1983. Count
II of Upchurch’s complaint is entitled “Civil Rights Claim for Racial Discrimination
under 42 U.S.C. Sec. 1981.” (Compl. at 9). Count II makes no reference to § 1983.
However, Count III of the complaint, which sets forth Upchurch’s claims under § 1983,
“re-alleges and incorporates by reference all of the foregoing allegations” and alleges
a denial of rights under section 1983 “as described in Count[ ] . . . II above.” (Compl.
at 10 (¶¶ 41, 44)). While Upchurch may not proceed with an independent 1981 claim,
(1976).
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the Court finds that he has sufficiently alleged his § 1981 claims through § 1983.
Upchurch’s claims under § 1981 will be construed and evaluated as claims brought
under § 1983.
Claims Against the Defendants in their Official Capacities
Defendants argue that Upchurch’s claims against the individual defendants in
their official capacities should be treated as a suit against the City, and therefore be
dismissed.
The Supreme Court has held that claims against a governmental agent in his
or her official capacity are not against the actual employee, but are against the office
that the employee holds. Kentucky v. Graham, 437 U.S. 159, 165 (1985) (citing Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55) (1978) (“official-capacity suits generally
represent only another way of pleading an action against an entity of which an officer
is an agent.”). See also Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
Upchurch’s claims against the individual defendants are effectively claims
against the City of Moss Point. Given that the City of Moss Point is a named
defendant, the official capacity claims against individual officials are redundant of the
suit against the City. Federal courts have held that in such a case, official capacity
claims against individual officials may be dismissed as duplicative or redundant of the
municipal entity claims. See Burnett v. City of Southaven, No. 2:08-CV-45-P-A, 2009
WL 1683981 at *1 (N.D. Miss. June 15, 2009) (“The official capacity claim is
tantamount to a claim against the City . . . . [a]ccordingly, the official capacity claim
. . . is redundant and . . . . should be dismissed.”) (citing Roberts v. City of Shreveport,
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397 F.3d 287, 291 (5th Cir. 2005)); Cooper v. City of Plano, No. 4:10-CV-689, 2011 WL
4100721 at *4 (E.D. Tex. Aug. 19, 2011) (holding official capacity claims were
redundant of claims against the City, and should be dismissed); Cotton v. District of
Columbia, 421 F. Supp. 2d 83, 86 (D.D.C. 2006) (calling duplicative cases suing
government officials in their official capacity “redundant” and an “inefficient use of
judicial resources”). But see Knox v. City of Monroe, No. 07-CV-606, 2009 WL 57115
(W.D. La. Jan. 8, 2009) at *5 n. 12 (stating that official capacity claim is redundant,
but not uncognizable, because it merges with claim against the City).
Accordingly, Defendants’ motion to dismiss Upchurch’s claims against the
individual defendants in their official capacities is GRANTED. Upchurch may proceed
with his claims against the City, which must satisfy the municipal liability test. See
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 313 (5th Cir.2002 ); Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Monell, 436 U.S. at 695.
Claims Against the Individual Defendants in their Personal Capacities
Upchurch also seeks to hold the individual defendants liable in their personal
capacities. Defendants claim that the individual defendants are entitled to the defense
of qualified immunity.3 Upchurch argues that the individual defendants are not
3
It is not entirely clear that the individual defendants could be subject to
liability under § 1981 regardless of whether they are entitled to the defense of qualified
immunity. See Oden v. Oktibbeha County, Miss., 246 F.3d 458 (5th Cir. 2001) (holding
the sheriff was not personally liable under § 1981, stating that “when a plaintiff
asserts a cause of action under § 1981 for discrimination in the terms and conditions
of a municipal employment contract, the proper defendant is the government employer
in his official capacity.”) See also Foley v. Univ. of Houston Sys., 355 F. 3d 333, 338
(5th Cir. 2003) (“the issue of qualified immunity arises only if the individual official is
11
entitled to qualified immunity because they violated his clearly-established
constitutional rights. He also argues that the Defendants have not properly pled the
defense of qualified immunity, and in the alternative moves to amend his complaint
and file a reply under Federal Rule of Civil Procedure 7 and Schultea v. Wood, 47 F.3d
1427 (5th Cir.1995).
“Claims against individual public officials under § 1981 are subject to the
defense of qualified immunity . . . as are claims against such individuals under § 1983.”
Foley v. Univ. of Houston Sys. 355 F.3d 333, 338 (5th Cir. 2003) (citing Todd v. Hawk,
72 F.3d 443, 445 n. 7 (5th Cir. 1995); Wicks v. Miss. State Emp. Servs., 41 F.3d 991, 996
n. 21 (5th Cir. 1995); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir.
1997)). “Qualified immunity balances two important interests– the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The doctrine of qualified
immunity protects government officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). If an official’s conduct was objectively reasonable, it does not matter
subject to liability in the first place, and § 1981 liability does not necessarily run to all
individual defendants”) (discussing Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990),
Felton v. Polles, 315 F.3d 470 (5th Cir. 2002), and Oden, 246 F.3d 458.) Defendants do
not raise the issue of whether the individual defendants could be liable under § 1981
“in the first place,” so the Court will not address the question today.
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if that official’s conduct violated a constitutional right; he is still entitled to qualified
immunity. Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996).
In evaluating a claim of qualified immunity, the court considers (1) whether the
plaintiff has alleged a violation of a constitutional right, and (2) whether that right was
clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S.
194, 200 (2001), overruled in part by Pearson, 555 U.S. 223 (2009). Courts have
discretion to determine which of these questions to address first. Pearson, 555 U.S. at
236.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. See also Wernecke
v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (“[W]hether an official protected by
qualified immunity may be held personally liable for an allegedly unlawful official
action generally turns on the ‘objective legal reasonableness’ of the action, assessed in
light of the legal rules that were ‘clearly established’ at the time it was taken.”)
Moreover, each defendant’s actions must be evaluated individually. Meadours v.
Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). See also Ashcroft v. Iqbal, 129 S.Ct. 1937,
1948 (2009) (“a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.”).
Therefore, in order to overcome Defendants’ defense of qualified immunity,
Upchurch’s complaint must allege facts that, if true, demonstrate that each individual
defendant violated his rights by acting in a way that he or she should have known was
13
unlawful. “When considering a defendant’s entitlement to qualified immunity,
we must ask whether the law so clearly and unambiguously prohibited his
conduct that ‘every reasonable official would understand that what he is doing
violates [the law].’” Morgan v. Swanson, ---- F.3d ----, 2011 WL 4470233 at *7 (5th Cir.
Sept. 27, 2011) (citing Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011)). The Court
examines Upchurch’s claims against each of the defendants in light of this standard.
Police Chief Smallman
Upchurch has alleged a number of specific factual allegations against Police
Chief Sheila Smallman.
Upchurch alleges that Smallman denied Upchurch an
opportunity for promotion when she appointed a “black female officer . . . to the
position of detective,” and appointed a “black male officer . . . to the position of
corporal” without giving “qualified white officers, including Upchurch . . . the
opportunity to compete for these positions.” (Compl. at 5 (¶ 25)). Upchurch claims his
qualifications for those positions were superior to the officers appointed by Smallman.
Id. Upchurch further alleges that Smallman discriminated against him by “using
racial slurs and harassment,” specifically by calling him “white boy.” (Compl. at 6 (¶
26)). Upchurch also alleges that Smallman reassigned him from the night shift to the
day shift, despite her knowledge that Upchurch was attending classes in the mornings.
(Compl. at 7 (¶ 30)). Upchurch maintains that a similarly situated black employee’s
schedule was not changed while that employee attended school. Id. Upchurch also
alleges that after he filed an internal complaint about discrimination, Smallman told
him he would be “punished” if he filed another such complaint. (Compl. at 9 (¶ 36)).
14
Finally, Upchurch claims that Smallman “announced to approximately 30 individuals
on February 8, 2010, that retaliatory action, including termination . . . would be taken
. . . against any police officer or witness who . . . assisted . . . Upchurch’s claims against
the Police Department.” (Compl. at 11 (¶ 47)). Defendants do not address Upchurch’s
specific allegations regarding Police Chief Smallman.
The Court finds that Upchurch’s allegations against Smallman are not merely
conclusory and, if taken as true, would establish the violation of a clearly-established
right. Upchurch has alleged that as a result of Smallman’s and the other defendants’
discrimination against him, he was deprived of his rights under the Equal Protection
Clause of the 14th amendment. “In order to state a claim of racial discrimination
under the Equal Protection Clause and § 1983, a plaintiff must demonstrate that the
governmental official was motivated by intentional discrimination on the basis of race.”
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (citing
Washington v. Davis, 426 U.S. 229, 238-42 (1976)). An objectively reasonable official
knows that intentional discrimination based on race is illegal. Moini v. Univ. of Tex.,
No. A-10-CA-180-SS, 2011 WL 90472 at *11 (W.D. Tex. Jan. 10, 2011) (citing Mustafa
v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1181 (9th Cir. 1998)). Additionally, a
reasonable official would know that retaliating against an employee for exercising his
right to file an EEOC complaint is illegal. See Foley v. Univ. of Houston Sys., 355 F.3d
333, 339 (5th Cir. 2003). The Court finds that the facts as alleged against Police Chief
Smallman are sufficient to draw an inference that Smallman violated Upchurch’s
clearly established rights. Accordingly, Defendants’ motion to dismiss Upchurch’s
15
claims against Police Chief Smallman in her personal capacity is DENIED.
Deputy Chief Johnson
Upchurch has also made specific factual allegations against Deputy Chief of
Police Bobby Johnson. Upchurch alleges that Johnson took retaliatory action against
him after he filed an EEOC complaint. (Compl. at 6 (¶ ¶ 28, 29)). Upchurch alleges
that Johnson retaliated against Upchurch by “taking away his take-home car
privileges” and issuing a written reprimand against Upchurch that was unwarranted.4
(Compl. at 6 (¶ 28-29)). Upchurch maintains that “similarly situated black employees
were not treated this way.” Id. at ¶ 29. Defendants do not address Upchurch’s specific
allegations regarding Deputy Chief Johnson.
The Court finds that with respect to Deputy Chief Johnson, Upchurch has
sufficiently alleged a violation of a clearly established right to overcome Johnson’s
qualified immunity. Upchurch’s factual allegations against Johnson, while slim, are
enough to draw an inference that Johnson violated Upchurch’s federally protected
rights. Upchurch’s allegation against Johnson appears to be that he retaliated against
Upchurch for filing an EEO complaint in violation of Title VII. A prima facie case of
retaliation requires that a plaintiff show (1) he engaged in activity protected activity;
(2) he was subject to an adverse employment action; and (3) there was a causal
4
According to the complaint, Upchurch filed his EEO complaint on March 14,
2009 (Compl. at 6 (¶ 27)), and Johnson took away Upchurch’s car privileges on
February 27, 2009. (Compl. at 6 (¶ 28)). Upchurch has not explained how this action,
taken weeks before he filed his EEO complaint, was in retaliation for his filing the
complaint.
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connection between the adverse action and the protected activity. See Stewart v. Miss.
Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009). The Court finds that if the facts
as Upchurch has alleged them are true, Upchurch has sufficiently met the elements
of retaliation. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(“plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”) (internal
quotations and citations omitted). Again, any reasonable official would know that
retaliating against an employee for exercising his right to file an EEOC complaint is
illegal. See Foley, 355 F.3d at 339.
Accordingly, Defendants’ motion to dismiss
Upchurch’s claims against Johnson in his personal capacity is DENIED.
Mayor Liddell and the Board of Aldermen
Upchurch alleges that Mayor Aneice Liddell and Aldermen Tommy Hightower,
George Martin, Sherwood Brandford, Shirley Chambers, Ruby Hill, Houston
Cunningham, and Robert Byrd “discriminated and retaliated against [him] by
wrongfully terminating his employment, making false accusations against him and
denying him due process” under the 14th amendment to the U.S. Constitution. (Compl.
at 7 (¶ 31)). Upchurch also alleges that the Aldermen “decided that a pre-termination
hearing was ‘not necessary,’” (Resp. at 17), and that the Mayor and the Aldermen
“decided upon his termination of employment before Upchurch appealed it to the Civil
Service Commission.” Id. at 15. Upchurch claims that the Mayor and Aldermen took
these actions against him “due to discrimination and retaliation.” Id. at 20. Upchurch
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submits that Defendants took no action against several black employees who
committed various infractions, even though their infractions were similar or worse
than those given as the grounds for Upchurch’s termination. (Compl. at 7 (¶ 31)).
Upchurch does not plead specific facts with respect to the Mayor or the individual
Aldermen; he makes these assertions against the defendants as a group.
The Supreme Court has recognized a procedural due process right to notice and
an opportunity to clear one’s name when the employee’s “good name, reputation, honor,
or integrity is at stake because of what the government is doing to him.” Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). These are procedural
requirements, which do not “arise unless the plaintiff can allege some deprivation of
liberty or property as set forth in the Fourteenth Amendment.” Hughes v. City of
Garland, 204 F.3d 223 (5th Cir. 2000) (citing Perry v. Sindermann, 92 S.Ct. 2694, 2698
(1972); Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 251 (5th Cir.1984); Moore v.
Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989)).
Upchurch alleges that he had a Fourteenth Amendment property interest in his
employment with the police department, which was violated when he was terminated.
The Supreme Court has held that a federal constitutional claim depends upon the
plaintiff having had a property right in continued employment; if he did, he must be
afforded due process before being deprived of that right. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532 (1985) (internal citations omitted). “Property interests are
not created by the Constitution, ‘they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state
18
law. . . .’” Id. at 538 (citing Roth, 408 U.S. at 577).
As a police officer, Upchurch could not be removed or discharged “except for
cause.” Miss. Code Ann. § 21-31-23. Under that statute, the official charged with the
termination decision “may, in his discretion, provide for a pretermination hearing.”5
Id. Assuming that Upchurch had a property interest in his employment, Upchurch has
alleged a violation of the Fourteenth Amendment. However, the Court finds that
Upchurch has not adequately alleged that the Mayor and the individual Aldermen
violated his “clearly-established” constitutional rights. Even if Upchurch’s due process
rights under the Fourteenth Amendment were violated – and the Court does not make
a finding on that issue today – the Mayor and the Board of Aldermen are entitled to
the defense of qualified immunity as long as their actions were objectively reasonable.
Nerren v. Livingston Police Dept., 86 F.3d 469, 473 (5th Cir. 1996) (“even if an official’s
conduct violates a constitutional right, he is entitled to qualified immunity if the
conduct was objectively reasonable.”) “[G]overnment officials performing discretionary
functions [enjoy] qualified immunity, . . . . as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.” Good
v. Curtis, 601 F.3d 393 (5th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S. 635,
638 (1987)). The Good court emphasized this point, noting that “qualified immunity
generally protects ‘all but the plainly incompetent or those who knowingly violate the
law.’ Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
5
It is not clear whether Upchurch is challenging the constitutionality of Miss.
Code Ann. § 21-31-23, or if he alleges only that his own termination lacked due process.
19
The allegations Upchurch has made against the Mayor and the Aldermen are
conclusory in nature and do not provide a factual basis to infer that those defendants’
actions were not objectively legally reasonable. Upchurch has not alleged facts that
would allow the Court to draw the inference that the Mayor and each of the Board of
Aldermen knew his or her actions were unlawful when Upchurch was terminated. The
Court finds that Upchurch’s complaint has not pleaded facts sufficient to overcome the
Mayor’s or the Aldermen’s defense of qualified immunity. Accordingly, Defendants’
motion to dismiss Upchurch’s claims against Mayor Liddell and the Board of Aldermen
in their personal capacities is GRANTED.6
IV. Claims under Section 1985
Defendants move to dismiss all of Upchurch’s claims under 42 U.S.C. § 1985.
In his complaint, Upchurch alleges that “Chief Smallman, the Moss Point Police
Department, and the other Defendants” discriminated against him in violation of §
1985. (Compl. at 12 (¶ 49)). Upchurch claims that Defendants violated § 1985(3) by
6
Upchurch relies on Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995), to argue that
Defendants’ motion to dismiss should be denied. Schultea held that “[w]hen a public
official pleads the affirmative defense of qualified immunity in his answer, the district
court may, on the official’s motion or on its own, require the plaintiff to reply to that
defense in detail.” Id. at 1433. A Schultea reply, pursuant to Federal Rule of Civil
Procedure 7(a), is appropriate when a court finds that a plaintiff has failed to plead
sufficient detail in his complaint to address the affirmative defense of qualified
immunity raised by a defendant. Schultea, 47 F.3d at 1433. In the circumstances
before the Court, Upchurch became aware that Defendants were raising the defense
of qualified immunity when Defendants filed the instant motion. Upchurch had the
opportunity to address Defendants’ qualified immunity in his response, and Upchurch
has done so. There is no need to invoke the process of filing a Shultea reply at this
juncture.
20
conspiring “to deprive Upchurch of the equal protection of the law” and “[a]greeing to
deny Upchurch equal hiring, promotions, and wages, and . . . . to harass him, retaliate
against him, and terminate his employment;” and “[c]alling a meeting of police officers
and directing them not to serve as witnesses or to assist Upchurch in appealing his
termination.” (Compl. at 12 (¶¶ 51-52)).
Section 1985 provides a cause of action for civil rights conspiracies that deprive
a person or class of persons of the equal protection of the laws or of equal privileges and
immunities under the laws. See 42 U.S.C. § 1985(3). To establish a violation of §
1985(3), a plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United States.
See United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 82829 (1983). The Supreme Court has made it clear that a violation of § 1985(3) requires
“some racial, or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.” See Griffin v. Breckenridge, 403 U.S. 88, 102 (1983).
Defendants argue that Upchurch’s § 1985 claims should be dismissed because
Upchurch “has not alleged interference in a federal court case or a state court case.”
(Resp. at 7).
Defendants’ argument is misplaced.
Defendants’ contention that
Upchurch must allege interference in the administration of justice in a federal or state
court would be correct if Upchurch had only alleged a violation of § 1985(2).
21
Upchurch’s complaint alleges a violation of §1985(3), which does not address
interference with the administration of justice in a state or federal court. Defendants’
motion does not argue that the facts as alleged in Upchurch’s complaint fail to
establish the required elements of a claim under § 1985(3). Accordingly, Defendants’
motion to dismiss Upchurch’s claims under § 1985 is DENIED.
V. Bivens claims
Upchurch’s complaint also alleges a cause of action under Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Compl.
at 13 (¶ 54)). Defendants move to dismiss Upchurch’s claims under Bivens on the
grounds that Upchurch has not asserted any claims against federal actors. Upchurch
does not respond to Defendants’ motion to dismiss his Bivens claims.
Bivens is the “federal analog” to § 1983; it provides a cause of action against
federal actors similar to the cause of action that § 1983 provides against state actors.
Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2006). Here, Upchurch has sued the City
of Moss Point, the Moss Point Police Department, and a number of employees of the
City. None of the defendants are alleged to be federal actors. Therefore, Bivens is not
applicable. Accordingly, Defendants’ motion to dismiss Upchurch’s claims under
Bivens is GRANTED.
VI. Defamation claim
Upchurch has also alleged the tort of defamation, claiming that Defendants
made false accusations against him to third parties.
(Compl. at 14-15 (¶ 58)).
Defendants move to dismiss Upchurch’s defamation claim on the grounds that it is
22
barred by the applicable statute of limitations. (Def’s. Mot. at 8). Upchurch’s response
to the motion to dismiss does not address Defendants’ arguments regarding his
defamation claim.
The statute of limitations applicable to defamation claims in Mississippi is one
year. Miss. Code Ann. § 15–1–35.7 “The statute of limitations for defamation and libel
begins to run from the date that the allegedly libelous statement was published to a
third person.” Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 32
F.3d 953 (5th Cir. 1994) (citing Brocato v. Miss. Publishers Corp., 503 So.2d 241, 242
(Miss.1987)). See also Ellisville State Sch. v. Merrill, 732 So.2d 198, 200 (Miss.1999)
(citing Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 347
(1943)(Mississippi adheres to the “single publication rule.”)).
Defendants point out that “January 26, 2009” is the only date Upchurch’s
complaint references with respect to his defamation claim. Upchurch’s complaint
alleges that on January 26, 2009, Police Chief Smallman “degraded Upchurch and
several other officers” by “referring to them as ‘those white boys.’” (Compl. at 15 (¶
7
Miss. Code Ann. § 15-1-35 provides:
All actions for assault, assault and battery, maiming, false
imprisonment, malicious arrest, or menace, and all actions
for slanderous words concerning the person or title, for
failure to employ, and for libels, shall be commenced within
one (1) year next after the cause of such action accrued, and
not after.
23
58)).8
Upchurch makes a number of other factual allegations under his defamation
claim, but does not reference dates with respect to those allegations. Defendants
submit that the other items alleged under Upchurch’s defamation claim “were
addressed by the Civil Service Commission on January 26, 2009 and February 3,
2009,” and that “the Civil Service Commission’s findings were issued on February 4,
2009.” (Resp. at 8). However, it is not clear from Upchurch’s complaint whether he
claims that the other allegedly defamatory statements were published for purposes of
the defamation statute by the Civil Service Commission’s findings.
Likewise,
Upchurch’s response to the instant motion provides no additional information with
respect to his allegations of defamation.
The Court finds that because it is not clear from Upchurch’s complaint when he
claims the majority of the alleged defamatory statements were made, Defendants’
motion to dismiss Upchurch’s defamation claims because they are time-barred is not
well-taken.
Without more information, the Court cannot determine when the
applicable statute of limitations began to run, or whether Upchurch’s complaint was
timely filed. Therefore, Defendants’ motion to dismiss Upchurch’s defamation claim
8
Upchurch’s complaint states that “Smallwood” referred to Upchurch and other
officers as “those white boys.” The Court assumes that the reference to “Smallwood”
is an error and that the complaint alleges that Police Chief Smallman made this
statement.
24
is DENIED.9
VII. Intentional Infliction of Emotional Distress
Defendants also move to dismiss “any claims made [by Upchurch] related to the
intentional infliction of emotional distress” on the grounds that Upchurch did not
comply with the mandatory notice requirement for such a claim under the Mississippi
Tort Claims Act (MTCA). See Miss. Code Ann. § 11-46-11(1).10
Upchurch’s complaint makes a brief reference to “mental anguish and emotional
distress” in Count V, which sets forth Upchurch’s claim under Bivens. (Compl. at 13-
9
Defendants do not assert that the City of Moss Point is entitled to immunity
with respect to Upchurch’s defamation claim. The Mississippi Torts Claims Act
(MTCA) provides the exclusive civil remedy against a governmental entity or its
employee for acts or omissions which give rise to a suit. See Miss. Code Ann. § 11-46-7.
Under the provisions of the MTCA,“actions that constitute . . . . defamation occur
outside the course and scope of employment, and the municipality has not waived
immunity from suit with respect to such acts and cannot be held liable for them.”
Gilmer v. Trowbridge, No. 3:08-CV-136-TSL-JCS, 2009 WL 649692 at *11 (S.D. Miss.,
March 10, 2009). See Miss. Code Ann. §§ 11-46-5(2), 11-46-7(2); Evans v. Miss. Dep’t
of Human Servs., 36 So. 3d 463, 476 ¶ 55 (Miss. Ct. App. 2010) (“Certain intentional
torts, such as defamation, are excluded from the MTCA’s waiver of immunity.”).
Because Defendants have not raised the affirmative defense of immunity with respect
to Upchurch’s defamation claim, the Court will not reach the issue.
10
Miss. Code Ann. § 11-46-11(1) provides in part:
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 employee 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
person shall file a notice of claim with the chief executive
officer of the governmental entity.
25
14). Count V is entitled “Constitutional Tort under Bivens and Punitive Damages
Mental Anguish and Emotional Distress.” (Compl. at 13). Under Count V, Upchurch
states that “Bivens provides recovery for torts committed in the process of depriving a
person of his constitutional rights,” and that several of the defendants “committed a
constitutional tort against Upchurch by . . . [c]ausing Upchurch to suffer job stress,
intentional and negligent infliction of emotional distress, and various medical injuries,
as a result of their tortious actions resulting from the constitutional violations.”
(Compl. at 13 (¶ 55)).
Defendants’ motion presumes that Upchurch alleges a claim of intentional
infliction of emotional distress under the MTCA. But as set forth above, it is not clear
from Upchurch’s complaint that he is alleging a state law claim of intentional infliction
of emotional distress.
The only reference to “emotional distress” in Upchurch’s
complaint is within his constitutional tort claims under Bivens.
In Upchurch’s
response to the instant motion, he argues (i) he can seek compensatory damages for
emotional distress under federal statutes Title VII, § 1981, and 1985 without being
subject to the requirements of the MTCA; and (ii) the “public policy purpose” of the
notice provision under the MTCA is to put the defendant municipality on notice of the
allegations, and Defendants had timely notice of his claims. (Resp. at 29-31).11
Upchurch does not attempt to argue that he complied with the specific requirements
11
Upchurch’s response also never explicitly states that Upchurch’s complaint
has in fact alleged a claim of intentional infliction of emotional distress under state
law.
26
of Miss. Code Ann. § 11-46-11. Instead, he claims that the purpose of the statute was
met because Defendants had notice of Upchurch’s claims based on his EEOC
complaints and a grievance against Police Chief Smallman filed in 2009, and the
Notice of Claim he filed in February 2011.
Upchurch’s complaint does not appear to have alleged a claim of intentional
infliction of emotional distress under the MTCA, but to the extent Upchurch does seek
to allege such a claim, he has not met the requirements of Miss. Code Ann. § 11-46-11.
Accordingly, the motion to dismiss Upchurch’s claims of intentional infliction of
emotional distress under the MTCA is GRANTED. The Court does not rule on
Defendants’ arguments, made only in rebuttal, that Upchurch cannot seek
compensatory damages for emotional distress under the federal statutes pled in his
complaint.
VIII. Punitive Damages
Defendants move to dismiss all of Upchurch’s claims for punitive damages
against the City of Moss Point on the grounds that the City is a governmental entity.
In his response, Upchurch argues that § 1981 allows the award of punitive damages
against a municipality, citing Sethy v. Alameda County Water Dist., 545 F.2d 1157 (9th
Cir. 1976).12
12
Despite the fact that Upchurch makes this argument in his response,
Upchurch’s complaint does not appear to seek punitive damages under § 1981. The
only references to requests for punitive damages found in Upchurch’s complaint are in
Count V (Bivens claims) and Count VII (defamation claim). (Compl. at 13-15 (¶¶ 56,
59)). The “Relief Requested” in Upchurch’s complaint states specifically: “Punitive
damages for defamation and Bivens claims, in the amount of $2 million.” (Compl. at
27
Defendants’ motion does not discuss Upchurch’s ability to recover punitive
damages under any statute other than 42 U.S.C. 1981a(b)(1). Section 1981a(b)(1)
provides that “[a] complaining party may recover punitive damages under this section
against a respondent (other than a government, government agency or political
subdivision) if the complaining party demonstrates that the respondent engaged in a
discriminatory practice[.]”
Upchurch does not address Defendants’ arguments
pursuant to § 1981a. Defendants are correct that under the express language of that
statute, a plaintiff may not recover punitive damages against a government or a
political subdivision, which would include the City of Moss Point. Therefore, to the
extent Upchurch’s complaint seeks damages pursuant to 42 U.S.C. 1981a, an award
of punitive damages will not be permitted against the City.13
Upchurch’s complaint seeks punitive damages for his claims under Bivens and
his defamation claim. Defendants do not specifically address Upchurch’s request for
punitive damages with respect to his Bivens claims, however, as set forth above,
Upchurch’s Bivens claims are dismissed. Accordingly, Upchurch will not be entitled
to seek punitive damages on those claims.
Likewise, Defendants do not address Upchurch’s request for punitive damages
17). No other punitive damages claims are mentioned in the “Relief Requested” section
of the complaint. Regardless, the Court is not convinced by Upchurch’s argument that
§ 1981 permits the award of punitive damages against a municipality. See Heritage
Homes of Attleboro, Inc. v. Seekonk Water Dist., 670 F.2d 1 (1st Cir. 1982).
13
Upchurch’s complaint does not appear to seek punitive damages under §
1981a.
28
with respect to his defamation claim. Upchurch’s defamation claim is not dismissed,
but regardless, Upchurch will not be entitled to punitive damages from the City of
Moss Point. Under Mississippi law, punitive damages are not recoverable against a
municipality unless authorized by statute. Town of Newton v. Wilson, 91 So. 419 (Miss.
1922). Moreover, the MTCA provides that punitive damages are not permitted against
governmental entities, even in actions for which governmental immunity is waived.
See Miss. Code Ann. 11-46-15(2). Upchurch has not pointed to any statute that would
permit the award of punitive damages against the City of Moss Point for the tort of
defamation, or any other claim.14
It is not clear whether or on what grounds Defendants may be seeking a
dismissal of claims for punitive damages against the individual defendants. The
motion does reference, in its final lines, a request that the Court dismiss “all claims for
punitive damages against the City of Moss Point and the individual Defendants,” but
Defendants make no arguments regarding claims for punitive damages against the
individual defendants, and provide no basis on which such claims should be dismissed.
(Def’s. Mot. at 9). Additionally, Upchurch’s complaint is not specific as to which
individual defendants, if any, he may seek to hold liable for punitive damages.
Therefore, the Court will not reach the issue of whether the individual defendants may
14
It does not appear that Upchurch is seeking punitive damages against the
City of Moss Point under § 1983 or Title VII, as noted supra. Neither of these statutes
provides for punitive damages awards against a municipality. See City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 261 (1981); Oden v. Oktibbeha Cnty., Miss., 246 F.3d
458, 465-66 (5th Cir. 2001); 42 U.S.C. § 1981a(b).
29
be liable for punitive damages at this time.
Defendants’ motion to dismiss Upchurch’s claims for punitive damages against
the City of Moss Point is GRANTED.
CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that for the reasons
stated herein, Defendants’ Motion to Dismiss [20] is GRANTED in part and DENIED
in part.
SO ORDERED AND ADJUDGED this the 26th day of October, 2011.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
30
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