Button et al v. Alford et al
ORDER denying Defendants' #3 Motion to Dismiss without prejudice, with leave to reassert, and granting Plaintiffs Leave to Amend Complaint. Plaintiffs must file any Amended Complaint on or before December 8, 2021. Signed by District Judge Halil S. Ozerden on 11/17/2021. (lg)
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ALICE BUTTON and
Civil No. 1:21cv308-HSO-RHWR
KIM ALFORD, principal, SAM SMITH,
assistant principal, ALAN LUMPKIN,
superintendent and PRC SCHOOL
ORDER GRANTING PLAINTIFFS LEAVE TO AMEND COMPLAINT AND
DENYING MOTION  TO DISMISS WITHOUT PREJUDICE, WITH LEAVE
BEFORE THE COURT is a Motion  to Dismiss filed by Defendants Kim
Alford, Sam Smith, Alan Lumpkin, and Pearl River County School District
(collectively, “Defendants”) on October 5, 2021. Pro se Plaintiffs Alice Button and
Steve Strausbaugh (collectively, “Plaintiffs”) have filed a Response  and a
Corrected Response , as well as two Motions ,  for Preliminary Injunction,
to which Defendants have responded separately. Plaintiff’s Corrected Response 
opposes Defendants’ Motion to Dismiss on the merits, but contains an alternative
request for leave to amend their Complaint.
After due consideration of the record and relevant legal authority, the Court
finds that Plaintiffs should be afforded leave to amend their Complaint, and that
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 2 of 6
Defendant’s Motion to Dismiss  should be denied without prejudice, with leave to
Plaintiffs allege that on September 10, 2021, their son was found in
possession of an electronic cigarette on school grounds. Compl. [1-1] at 1. School
officials confiscated and discarded the electronic cigarette, and assigned Plaintiffs’
son to three days of in-school suspension for violating school policy. Answer  at 2.
Plaintiffs filed suit on September 16, 2021, in the Circuit Court of Pearl River
County, Mississippi, against Kim Alford, the school principal, Sam Smith, the
assistant principal, Alan Lumpkin, the superintendent, and Pearl River County
School District (“PRC School District”), claiming violations of their child’s
Constitutional rights. Compl. [1-1] at 1. Specifically, Plaintiffs assert that their son
was subjected to an “improper search” and that the school “imposed excessive
penalties” and “excessive fines.” In addition, they invoke the Fifth Amendment Due
Process Clause, contending that it required “notice and a meaningful opportunity to
be heard before seizing real property subject to civil forfeiture.” 1 Id.
Invoking this Court’s federal question jurisdiction under 28 U.S.C. 1331,
Defendants removed this dispute to federal court on September 28, 2021, Not. of
Rem.  at 1, and filed a Motion  to Dismiss on October 5, 2021. Defendants
argue that they are entitled to dismissal under Federal Rule of Civil Procedure
The Court construes these claims as an invocation of the Fourth Amendment right to be free from
unreasonable searches and seizures and the Eighth Amendment right to be free from excessive fines.
While Plaintiffs cite to the Fifth Amendment in their Complaint, liberal construction of the pleadings
require the Court to assume the proper citation to the Fourteenth Amendment.
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 3 of 6
12(b)(6), on grounds that Plaintiffs’ constitutional claims fail, and because
Defendants are otherwise entitled to qualified immunity. Mem.  at 4. Plaintiffs
have since filed two Motions ,  for Preliminary Injunction, seeking to remove
the individual Defendants from any disciplinary decisions involving their son. Those
Motions ,  remain pending and will not be addressed here.
Federal Rule of Civil Procedure 12(b)(6)
When a party files a motion to dismiss pursuant to Rule 12(b)(6), a court
“must assess whether the complaint contains sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its face . . .” Spitzberg v. Houston
Am. Energy Corp., 758 F.3d 676, 683 (5th Cir. 2014). A complaint must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
complaint must include “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Federal Rules of Civil Procedure provide that leave to amend “shall be
freely given when justice so requires.” Fed. R. Civ. P . 15(a); see also McClellon v.
Lone Star Gas Co., 66 F.3d 98, 103 (5th Cir. 1995). This is especially true in light of
Plaintiffs’ pro se status. See Watkins v. Lujan, 922 F.2d 261, 265 (5th Cir. 1991)
(allowing pro se plaintiffs to reassert claims that normally would be considered
waived, because the pleadings of pro se plaintiffs are afforded “liberality”).
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 4 of 6
Liberally construed, the Complaint appears to advance three claims: (1) that
Defendants violated Plaintiffs’ son’s right to due process under the Fourteenth
Amendment; (2) that Defendants violated his Eighth Amendment right to be free
from excessive fines; and (3) that Defendants conducted an unreasonable search and
seizure in violation of the Fourth Amendment. Not. of Rem. [1-1] at 2; Corr. Resp.
 at 3.
Defendants argue that these rights were not violated, and even if they were,
Kim Alford, Sam Smith, and Alan Lumpkins are entitled to qualified immunity.
Mot.  at 3. “In performing the qualified immunity analysis, the first question we
must ask is whether, taken in the light most favorable to the plaintiffs, the facts
alleged show that the officer's conduct violated a constitutional right. If no
constitutional right would have been violated were the allegations established, the
inquiry ends.” Gates v. Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 418
(5th Cir. 2008) (citations omitted).
Plaintiffs argue that Defendants are not entitled to qualified immunity
because their direct actions deprived Plaintiffs’ son of his constitutional rights. They
allege that the principal and vice principal gave instructions to destroy the
electronic cigarette, and that the superintendent refused to take any corrective
action when informed about the confiscation after-the-fact. Corr. Resp.s  at 1.
Plaintiffs further allege that the confiscation of the electronic cigarette violated
their son’s property interest, because Defendants discarded the electronic cigarette
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 5 of 6
without any hearing or notice. Id. at 2. Finally, Plaintiffs contend that the search
was improper. Id. at 3.
Plaintiffs also state in their Corrected Response that, because they are pro se
litigants, they request in the alternative “leave to amend the complaint to more
artfully establish the aforementioned.” Corr. Resp.  at 3. In light of the foregoing,
the Court finds that Plaintiffs should be granted leave to amend their Complaint to
more clearly state and support with appropriate factual allegations their claims
against Defendants. If Plaintiffs desire to amend their pleadings, they shall file any
Amended Complaint into the record of this case on or before December 8, 2021.
Plaintiffs are cautioned that failure to file an Amended Complaint by this deadline
may be viewed as a failure to prosecute, and may result in the Court dismissing this
case without prejudice and without further notice to Plaintiffs.
IT IS THEREFORE, ORDERED AND ADJUDGED that, Plaintiffs Alice
Button and Steve Strausbaugh are granted leave to file an Amended Complaint.
Plaintiffs must file any Amended Complaint on or before December 8, 2021.
IT IS, FURTHER, ORDERED AND ADJUDGED that, failure to file an
Amended complaint into the record of this case on or before December 8, 2021, may
be viewed as a failure to prosecute and may result in the Court dismissing
Plaintiffs’ case without further notice to Plaintiffs.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendants’
Motion  to Dismiss is DENIED WITHOUT PREJUDICE, with leave to reassert
upon the filing of the Amended Complaint.
Case 1:21-cv-00308-HSO-RHWR Document 16 Filed 11/17/21 Page 6 of 6
SO ORDERED AND ADJUDGED, this the 17th of November, 2021.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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