McBride v. City of Moss Point et al
Filing
23
ORDER granting in part and denying in part Defendants' Motion 12 to Dismiss, or in the Alternative, Motion for More Definite Statement and Granting Defendants' Motion to Dismiss Based on Statute of Limitations. Signed by District Judge Halil S. Ozerden on 1/22/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICHARD MCBRIDE
V.
PLAINTIFF
Civil No.1:13-cv-27-HSO-RHW
KEITH DAVIS, Moss Point Police Chief, et al.
DEFENDANTS
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR MORE
DEFINITE STATEMENT AND GRANTING DEFENDANTS’ MOTION TO
DISMISS BASED ON STATUTE OF LIMITATIONS
BEFORE THE COURT are two motions filed by Defendant City of Moss
Point, Mississippi, and the individual Defendants, appearing in their official
capacities only, Moss Point Police Chief Keith Davis, former Moss Point Police Chief
Sheila Smallman, Moss Point Municipal Court Judge Maxcin Conway, Moss Point
Police Detective Johnny Jefferson, Moss Point Police Detective “Unknown” Savage,
former Moss Point Police Officer Joseph Michael Upchurch, Moss Point Police
Officer Thomas Reynolds, former Moss Point Police Officer Terrance Gray, and
former Moss Point Police Officer Tiffany Dees: (1) Defendants’ Federal Rule of Civil
Procedure 12(b)(6) Motion [12] to Dismiss, or in the Alternative, Motion for More
Definite Statement; and (2) Defendants’ Motion [13] to Dismiss Based on Statute of
Limitations.
Plaintiff Richard McBride, who is proceeding pro se, has filed Responses [15,
16] to the Motions, and Defendants have filed Rebuttals [18, 19]. Though McBride
did not seek the Court’s permission to do so, he has filed Surrebuttals [20, 21] and
an Amended Surrebuttal [22].1 After consideration of the Motions [12, 13], the
record, and relevant legal authorities, and for the reasons discussed below, the Court
finds that Defendants’ Motion [12] to Dismiss, or in the Alternative, Motion for More
Definite Statement should be granted in part and denied in part and Defendants’
Motion [13] to Dismiss Based on Statute of Limitations should be granted.
I. BACKGROUND
A.
Procedural History
McBride, who has been a Plaintiff in at least six cases before this Court,2
instituted this suit by filing a Complaint [1-2] on January 17, 2013, in the Circuit
Court of Jackson County, Mississippi, against the City of Moss Point, Mississippi,
eight current or former Moss Point law enforcement officers, and a Moss Point
Municipal Court judge. On January 31, 2013, the City of Moss Point and the
individual Defendants, appearing in their official capacities only, filed a Notice of
Removal [1] to this Court on the basis of federal question jurisdiction. While McBride
has sued the individual Defendants in their official and individual capacities, there is
no evidence in the record to suggest that McBride has served the Defendants
1
McBride is advised that the Local Rules allow a Response and Rebuttal after
a Motion is filed. L.U. Civ. R. 7. A party must first seek and receive permission
from the Court before filing a Surrebuttal. Because McBride did not request or
receive permission to file his Surrebuttals [20, 21, 22], the Court has not considered
them.
2
Bullock et al. v. Gulf Stream Coach, Inc., 1:09cv578-HSO-JMR; McBride v.
Wal-Mart Stores, Inc., 1:02cv114-JMR-JMR; McBride v. City of Moss Point, Miss.,
1:00cv342-WJG; McBride v. Am. Sec. Ins. Co., 1:99cv490-WJG; McBride v. Halter
Marine Shipyard, 1:96cv246-DCB; McBride v. Halter Marine, 1:96cv238-DCB.
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individually, as opposed to in their official capacities.3 Summonses in the record were
issued to Defendants “in The official capacity through the honor. Mayor of Moss Point
. . . .” Summonses [1-3][all sic in original].
The City of Moss Point and the individual Defendants, appearing in their
official capacities only, seek dismissal of McBride’s claims in their entirety,
submitting that some of the claims McBride asserts are clearly time-barred, while the
remainder should be dismissed for failure to state a claim. Defs.’ Mot. [12] at pp. 2-3;
Defs.’ Mot. [13] at pp. 2-3. In the alternative, Defendants request that McBride be
required to provide a more definite statement due to the “unclear and nonsensical”
nature of his Complaint. Defs.’ Mot. [12] at pp. 4-5.
B.
McBride’s Complaint
McBride begins his 19-page Complaint with the following summary,
submitting that this
is an action for injunctive relief compensatory damages.
Punitive damages, defemation damage, slander damages,
false arrest, bullying, false imprisonment, negligent false
rumors, reckless indiffer discrimination violation department
regulation. Verbally harrasing defendants violation state law
and federal law violation of Richard McBride civil right
remedies guranteed to Plaintiff under the (1) First
Amendment and (5) Fifth Amendment the (8) Amendment
excessive bail Find Law (.2008B.NOLO.2008). (14)
Fourteenth Amendment and (6) Six Amendment to United
States
3
An action against a government official in his or her official capacity is
tantamount to a suit against the government itself. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989). It is not a suit against the official personally and
should be treated as a suit against the entity. McCarthy v. Hawkins, 381 F.3d 407,
414 (5th Cir. 2004).
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I.
The defendants actions described herein constitute violations
state and federal amendments to the United States
Constitution 42 U.S.C. 1983, 1981, and 1985 and title VII of
Civil Rights act of 1964, 42 U.S.C. 2000-16 et seq. these
violations arise from unlawful employment practices against
plaintiff Richard McBride including Racial, Discrimination,
acting under color of state law. Retaliation for participation
in prior protest police injustice.
Pl.’s Compl. [1-2] at p. 2 [all sic in original].
Further claims, accusations, and legal “buzz words” scattered throughout
McBride’s Complaint are “Intentional, Malicious, willful, wanton, callous, and . . .
reckless disregard for plaintiff Richard McBride rights . . . [under] the Fourth
Amendment,” malice, gross negligence, “abuse of power by the police chief and the
policies. Duress, coercion, fraud or mistake,” violating “department regulations,
standards, practice, and/or policy,” “violat[ion of] the constitution 13 amendment against
slavery,” “pattern and practice of willful and intentional discrimination against Richard
McBride on the basis of his race and retaliation for Bias and prejudice,” conspiracy,
extortion, “Reckless indifference willful intent,” “failure to conduct due diligence to be a
form of negligence,” bullying, harassment, “racial slurs,”“malicious humiliation police
tactic call subject profiling,” corruption, “recketeering scheme on the citizen of Moss
Point, Ms. by filing false charge,” and “Emotional injury Damages for Stress, Trauma,
and Emotional Distress caused by defendant’s conduct.” Id. at pp. 8-19. McBride
requests $2.5 million dollars in damages, injunctive relief in the form of “expungement
of all law enforcement records related to this incident,” nonspecific declaratory relief, fees
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for attorneys and experts, and court costs. Id. at p. 19. McBride references claims in his
Responses [15, 16] that he did not plead in his Complaint. Claims not pleaded in a
Complaint are not properly before the Court, and McBride’s unpleaded claims will be
disregarded.
According to his Complaint, McBride’s primary grievance surrounds his
January 15, 2012, arrest and imprisonment for alleged aggravated domestic violence
against his wife Blondine McBride and purported attempt to intimidate her from
testifying as a witness against him. Pl.’s Compl. [1-2] at pp. 7-14; Abstracts of Court
Records [15-4, 15-5]. McBride was imprisoned upon his arrest and released on bond a
day or two later. Pl.’s Compl. [1-2] at pp. 7, 10; Abstracts of Court Records [15-4, 155]. On October 22, 2012, a Jackson County, Mississippi, grand jury indicted McBride
for allegedly violating Mississippi Code section 97-9-55 by “threatening to cause
physical injury to the said Blondine McBride if she contacted the police.” True Bill
[15-3]. On July 30, 2013, the State of Mississippi dropped this charge against
McBride because “the victim does not wish to pursue the case to trial . . . and the
victim will not assist the State.” Entry of Nolle Prosequi [15-6].
McBride contends that on January 16, 2012, the day after his arrest, he
retrieved his belongings and was in the process of being released on bond when
Detective Johnny Jefferson and Detective “Unknown” Savage stopped him and held
him on orders from Moss Point Chief of Police Keith Davis, who purportedly wanted
to talk to McBride. Pl.’s Compl. [1-2] at p. 7. McBride alleges that Detectives
Jefferson and Savage and “the black female” “put [him] in slavery” by handcuffing
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him to the wall for five or six hours and then moving him to another room where he
was chained to a table until Chief Davis arrived. Id. at p. 8. McBride asserts that
when Chief Davis arrived, he falsely accused McBride of “pull[ing] a gun on him in
his office.” Id. at p. 9. McBride claims that Chief Davis “drew his gun twice” on
McBride, “intimadating [sic] a prisoner with deadly force.” Id.
According to McBride, Chief Davis talked to Detectives Jefferson and Savage
and to Moss Point Municipal Judge Maxcin Conway, and together these Defendants
conspired to falsely accuse McBride of having “multiple counts of domestic violence.”
Id. McBride maintains that this allegedly false accusation resulted in Judge Conway
setting McBride’s bond at $85,000, which McBride contends was excessive and
violated the Eighth Amendment to the United States Constitution. Pl.’s Compl. [1-2]
at p. 10; Abstracts of Court Records [15-4, 15-5]. McBride alleges that Detectives
Jefferson and Savage made false statements against him at the bail hearing, and
Judge Conway “improperly discuss[ed] [his] case in open court.” Pl.’s Compl. [1-2] at
p. 10. McBride claims that Chief Davis, Detective Jefferson, Detective Savage, and
Judge Conway conspired to defame him, extort him through excessive bail, violate his
right to equal protection, and retaliate against him because he had filed criminal
charges against police officers to “protest police injustice.” Pl.’s Compl. [1-2] at pp. 2,
9-11; Pl.’s Resp. [15] at p. 4. McBride accuses Police Officer Terrance Gray of
harassing him while Gray transported McBride to the Jackson County Adult
Detention Center. Pl.’s Compl. [1-2] at p. 17.
McBride admits that, on or around January 15, 2012, his wife Blondine “went
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to Singing River Hospital to check on her back. She fell up against the weigh bench.
The weight bench has cords. My wife believe or thought I Richard McBride had hit
her.” Id. at p. 12 [all sic in original]. After she was treated and released from the
hospital, Blondine went home and was apparently questioned by Detectives Jefferson
and Savage. Id. at pp. 12-13. McBride accuses Detective Jefferson of making false
statements about McBride to Blondine and intimidating Blondine in such a way that
she left the McBride home to stay at a women’s shelter in New Orleans, Lousiana. Id.
at p. 12. McBride claims that Detective Jefferson’s “failure to conduct due diligence to
be a form of negligence.” Id. McBride accuses Detective Savage of making false
statements about McBride to Blondine in order to coerce and “brain wash[]” her into
“l[ying] [a]bout her husband Rev. Richard McBride.” Id. at pp. 13-14.
The remaining allegations in McBride’s Complaint are unrelated to his
January 15, 2012, arrest. These claims surround purported conduct between the
years of 2007 to 2011 by former Moss Point Police Chief Sheila Smallman and former
or current Moss Point Police Officers Thomas Reynolds, Tiffany Dees, Joseph Michael
Upchurch, and Terrance Gray. Id. at pp. 15-19.
McBride accuses Officer Reynolds of false arrest, false imprisonment, and
defamation in connection with “switched tag Case No. 2011050050 . . . [and] [n]o proof
of Insuarance [sic] Case No. 2011050068.” Pl.’s Compl. [1-2] at p. 15. Attached to one
of his Responses, McBride has submitted documents from the Moss Point Municipal
Court, which indicate that on August 9, 2011, two petty misdemeanor charges against
McBride for “switched tag” and “no proof of insurance” were dismissed upon Officer
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Reynold’s request. Dismissals [15-1]. The charge for “no proof of insurance” was
dismissed after McBride presented proof of insurance. Id. at p. 2.
Regarding Chief Smallman and Officers Dees, Upchurch, and Gray, McBride’s
Complaint provides:
Tiffany Dees False Arrest Richard McBride charge of False
pretense 2007 or 2008. Harassment to Richard McBride.
...
Moss Point Former Police Joseph Michael Upchurch Police
Misconduct to Richard McBride Stating that “I will Lock Your
Black Ass Up.” On or about January 26, 2009 Racial slurs
and harassment The year of 2008 and 2009.
...
Former Police Chief Shelia Smallman Harrasment Richard
McBride, Racial Slurs and Harrassment. In the year of 2008
and 2009.
...
Former Police officer Terrance Gray Harrasment Richard
McBride, Racial Slurs and Harrasment. In the year of 2008
and 2009. On or about January 17, 2012 transported Richard
McBride to the Jackson County Adult Detention Center and
he harrasment him again.
...
Pl.’s Compl. [1-2] at pp. 15-18 [all sic in original].
McBride’s Complaint recites “[t]he elements of defamation” and “[t]he elements
of punitive damages” after naming Dees, Upchurch, Smallman, and Gray. Id.
II. DISCUSSION
A.
Applicable Legal Standards
1.
Federal Rule of Civil Procedure 12
Federal Rule of Civil Procedure 12(e) allows a party to request a more definite
statement with respect to a “pleading to which a responsive pleading is allowed but
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which is so vague or ambiguous that the party cannot reasonably prepare a response.”
Fed. R. Civ. P. 12(e). Federal Rule of Civil Procedure 12(b)(6) provides that a
complaint may be dismissed for failure to state a claim upon which relief may be
granted.
The purpose of a motion under Rule 12(b)(6) is “to test the formal sufficiency of
the statement of the claim for relief; the motion is not a procedure for resolving a
contest between the parties about the facts or the substantive merits of the plaintiff’s
case.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1356 (3d ed. 2008). Rule 12(b)(6) “must be read in conjunction with Rule 8(a), which
sets forth the requirements for pleading a claim for relief in federal court and calls for
‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’” Id. “[T]he statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007).
In 2007 and 2009, the United States Supreme Court addressed the standard
for a motion to dismiss under Rule 12(b)(6):
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. 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. The
plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of
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entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-58 (2007))(internal quotations and citations omitted).
“The Supreme Court’s decisions in Iqbal and Twombly . . . did not alter the
longstanding requirement that when evaluating a motion to dismiss under Rule
12(b)(6), a court must accept all well-pleaded facts as true and view those facts in the
light most favorable to the plaintiff.” Harold H. Huggins Realty, Inc. v. FNC, Inc.,
634 F.3d 787, 796 (5th Cir. 2011)(internal quotation omitted). The Court’s analysis is
generally limited “to the facts stated in the complaint and the documents either
attached to or incorporated in the complaint.” Lovelace v. Software Spectrum, Inc., 78
F.3d 1015, 1017-18 (5th Cir. 1996). “[C]ourts may also consider matters of which they
may take judicial notice,” id. at 1018, and “may permissibly refer to matters of public
record,” Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994).
A pro se plaintiff’s pleadings are to be construed liberally. Perez v. United
States, 312 F.3d 191, 194-95 (5th Cir. 2002). “A pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson, 551 U.S. at 94.
2.
Statutes of Limitation
“Statutes of limitations serve as absolute bars to suit.” Nottingham v.
Richardson, No. 11-11027, 499 F. App’x 368, 375 (5th Cir. Dec. 4, 2012). Their
purpose is to “bar the litigation of stale claims at a time removed from when the
pertinent events occurred.” Matter of Swift, 129 F.3d 792, 796 (5th Cir. 1997).
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The Mississippi Code 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, or for libels, shall be commenced within one (1)
year next after the cause of such action accrued, and not
after.
Miss. Code § 15-1-35.
The Mississippi Code further provides:
(1) All actions for which no other period of limitation is
prescribed shall be commenced within three (3) years next
after the cause of such action accrued, and not after.
...
Miss. Code Ann. § 15-1-49(1).
“Because no specified federal statute of limitations exists for § 1983 suits,
federal courts borrow the forum state’s general or residual personal-injury limitations
period, see Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 102 L. Ed. 2d 594
(1989), which in Mississippi is three years, Miss. Code Ann. § 15-1-49 (2011).”
Edmonds v. Oktibbeha Co., Miss., 675 F.3d 911, 916 (5th Cir. 2012). Section 1985
claims are also governed by Mississippi Code section 15-1-49(1)’s three-year statute of
limitations. Neal v. Leflore Co. Bd. of Supervisors, No. 4:12cv10-SA-JMV, 2013 WL
4829203 *3 (N.D. Miss. Sept. 10, 2013). Section 1981 claims are subject to either
Mississippi Code section 15-1-49(1)’s three-years statute of limitations or 28 U.S.C.
§ 1658's four-year statute of limitations, the latter applying if the plaintiff’s cause of
action was made possible by the 1991 amendments to the Civil Rights Act. Liddell v.
Northrop Grumman Shipbuilding, Inc., 836 F. Supp. 2d 443, 452 (S.D. Miss. 2011).
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B.
Analysis of Plaintiff’s Pleadings
1.
McBride’s Claims Accruing from 2007 through 2011
McBride advances claims against Officer Reynolds for false arrest, false
imprisonment, and defamation. Pl.’s Compl. [1-2] at p. 15. McBride has pleaded no
federal claims against Officer Reynolds. The only factual statement in the Complaint
about McBride’s claims against Reynolds provides: “Thomas Reynold’s charged with
switched tag Case No. 2011050050 by charge Richard McBride No proof of Insurance
Case No. 2011050068.” Id. [all sic in original]. This singular statement does not
contain sufficient factual matter, accepted as true, to state claims for false arrest,
false imprisonment, or defamation.
The documents [15-1] submitted by McBride with his Response indicating that
two petty misdemeanor charges for “switched tag” and “no proof of insurance” were
dismissed on August 9, 2011, upon Officer Reynold’s request, do not cure this
deficiency. There is no indication in the Complaint or the supplied documents that
McBride was arrested or imprisoned after being cited for these petty misdemeanors;
nor does McBride explain what alleged defamatory statement Reynolds purportedly
made. McBride’s claims against Officer Reynolds should be dismissed pursuant to
Rule 12(b)(6) for failure to state a claim. They should also be dismissed because false
arrest, false imprisonment, and defamation claims arising from conduct occurring in
2011 are barred by Mississippi Code section 15-1-35's one-year statute of limitations.
McBride’s claims against Chief Smallman and Officers Dees, Upchurch, and
Gray also do not survive a 12(b)(6) analysis. McBride claims false arrest,
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harassment, and defamation against Officer Dees; “racial slurs,” harassment,
defamation, and police misconduct “I will Lock Your Black Ass Up” against Officer
Upchurch; “racial slurs,” harassment, and defamation against Chief Smallman; and
harassment and “racial slurs” against Officer Gray. Pl.’s Compl. [1-2] at 15-18.
McBride has failed to plead sufficient factual content to support claims against
any of these Defendants for false arrest or defamation. Furthermore, claims for false
arrest and defamation arising from purported acts and statements occurring in 2007,
2008, or 2009, are barred by Mississippi Code section 15-1-35's one-year statute of
limitations. McBride’s claims for harassment and “racial slurs” against Defendants
Smallman, Dees, Upchurch, and Gray are not cognizable, as pleaded. McBride’s
Complaint does not reference a legal source establishing a private cause of action for
harassment, and harassment does not appear to be a private right of action in a case
such as this one. Furthermore, there is no private cause of action for “racial slurs.”
To the extent McBride is attempting to assert § 1983 or § 1985 race discrimination
claims for actions arising in 2007, 2008, and 2009, these claims are barred by
Mississippi Code section 15-1-49(1)’s three-year statute of limitations. No facts in
McBride’s Complaint support a § 1981 claim, even if such a claim were not time
barred. For these reasons, McBride’s claims against Chief Smallman and Officers
Reynolds, Dees, Upchurch, and Gray should be dismissed and these individuals will
be dismissed from this case as Defendants.
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2.
McBride’s Claims Accruing in January 2012
a.
Federal Claims
Accepting all well-pleaded facts as true, viewing them in the light most
favorable to McBride, and construing McBride’s pro se Complaint liberally, McBride
has stated facts sufficient to support the constitutional claims he has pleaded against
the City of Moss Point, Chief Davis, Detective Jefferson, Detective Savage, and Judge
Conway for First Amendment retaliation, unlawful seizure under the Fourth
Amendment, excessive bail under the Eighth Amendment, and violation of equal
protection under the Fourteenth Amendment. Taking into consideration his pro se
status, McBride has given fair notice of these claims and the grounds upon which
they rest, such that the Court will not dismiss them under Rule 12(b)(6) or require
McBride to provide a more definite statement regarding them. The Court does not
prejudge the merit of these claims or their likelihood of success.
McBride has not pleaded facts sufficient to support claims against any
Defendant pursuant to the Fifth, Sixth, or Thirteenth Amendments. McBride has
also not pleaded facts sufficient to support claims against any Defendant under Title
VII of the Civil Rights Act of 1964 or for “recketeering.” These federal claims will be
dismissed.
b.
State Claims
Accepting all well-pleaded facts as true, viewing them in the light most
favorable to McBride, and construing McBride’s pro se Complaint liberally, McBride
has stated facts sufficient to support his claims against the City of Moss Point, Chief
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Davis, Detective Jefferson, Detective Savage, and Judge Conway for false
imprisonment, defamation, emotional distress, and civil conspiracy. McBride’s claim
against Detective Jefferson for negligence will also proceed at this juncture. Taking
into consideration his pro se status, McBride has provided fair notice of these claims
and the grounds upon which they rest, such that the Court will not dismiss them
under Rule 12(b)(6) or require McBride to provide a more definite statement
regarding them. The Court does not prejudge the merit of these claims or their
likelihood of success.
McBride has not pleaded particularized facts in his Complaint sufficient to
support a claim for fraud against any Defendant, and his fraud claim will be
dismissed pursuant to Federal Rules of Procedure 12(b)(6) and 9(b). The Court does
not have jurisdiction to “expunge[] all law enforcement records related to this
incident,” and McBride’s request for expungement will be dismissed pursuant to Rule
12(b)(6). To the extent McBride is attempting to advance claims for bullying,
harassment, “abuse of power,” corruption, coercion, mistake, bias, prejudice, “racial
slurs,” “malicious humiliation,” or profiling, McBride has not identified any legal
source for such claims, some are not cognizable private rights of action, and some are
not cognizable claims for purposes of this type of case. These claims will be dismissed
pursuant to Rule 12(b)(6). The claims McBride references in his Responses [15, 16]
that he did not plead in his Complaint are not properly before the Court and will be
disregarded.
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C.
Notice That All Individual Capacity Claims Against Defendants Will Be
Dismissed if Proof of Effective Service is Not Filed by February 10, 2014, or
Good Cause Shown
The Complaint also named Chief Davis, Detective Jefferson, Detective Savage,
and Judge Conway in their individual capacities, but there is no evidence in the
record to suggest that McBride has personally served any of these Defendants. “To
the extent that a plaintiff sues a defendant in his individual capacity, he is required
to serve such defendant personally, as an individual . . . .” Omobude v. Mississippi
Dept. of Finance and Admin., No. 3:10cv703-TSL-FKB, 2011 WL 346522, *1 (S.D.
Miss. Jan. 31, 2012).
“If a defendant is not served within 120 days after the complaint is filed, the
court – on motion or on its own after notice to the plaintiff – must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). McBride has had an entire year to personally
serve Chief Davis, Detective Jefferson, Detective Savage, and Judge Conway in their
individual capacities, and he has not done so. In its June 19, 2013, Order denying
McBride’s Motion to Remand, the Court expressly informed McBride that “Plaintiff
has only served Defendants in their official capacities.” Order [10] at pp. 2-3. The
Court hereby notifies McBride that his individual capacity claims against Chief
Davis, Detective Jefferson, Detective Savage, and Judge Conway will be dismissed
unless on or before February 10, 2014, McBride files proof of service with the Court
demonstrating that he has properly personally served these individuals or “shows
good cause” why he has been unable to personally serve them during the full year
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that he has had to do so. Fed. R. Civ. P. 4(m).
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendants’
Federal Rule of Civil Procedure 12(b)(6) Motion [12] to Dismiss, or in the
Alternative, Motion for More Definite Statement is GRANTED IN PART AND
DENIED IN PART. The Motion is denied to the extent that Plaintiff Richard
McBride’s claims against the City of Moss Point, Keith Davis, Johnny Jefferson,
“Unknown” Savage, and Maxcin Conway for First Amendment retaliation, unlawful
seizure under the Fourth Amendment, excessive bail under the Eighth Amendment,
violation of equal protection under the Fourteenth Amendment, false imprisonment,
defamation, emotional distress, and civil conspiracy will proceed at this juncture.
McBride’s negligence claim against Johnny Jefferson will also proceed at this
juncture. The Motion for a More Definite Statement is also denied. The Motion is
granted to the extent that all remaining claims or purported claims by McBride are
dismissed.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants’ Motion
[13] to Dismiss Based on Statute of Limitations is GRANTED, and McBride’s claims
against Reynolds, Dees, Upchurch, Smallman, and Gray are dismissed.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Clerk of Court
shall terminate Thomas Reynolds, Tiffany Dees, Joseph Michael Upchurch, Sheila
Smallman, and Terrance Gray as Defendants.
IT IS, FURTHER, ORDERED AND ADJUDGED that, McBride’s individual
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capacity claims against Keith Davis, Johnny Jefferson, “Unknown” Savage, and
Maxcin Conway will be dismissed unless on or before February 10, 2014, McBride
files proof of service with the Court demonstrating that he has properly personally
served these individuals or “shows good cause” why he has been unable to personally
serve them during the full year that he has had to do so. Fed. R. Civ. P. 4(m).
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Clerk of Court is
directed to mail a copy of this Order to Plaintiff Richard McBride at his last known
address, via the United States Postal Service, certified mail, return receipt requested.
SO ORDERED AND ADJUDGED, this the 22nd day of January, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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