Smith v. Smith et al
ORDER finding as moot 8 Motion to Dismiss for Lack of Jurisdiction; deferring ruling on 11 Motion for Judgment on the Pleadings. Plaintiff is given three weeks from the date of this Order to file a sur-reply. Withdrawing 14 Motion to Amend/Correct; withdrawing 18 Motion to Stay Proceedings; granting 20 Motion to Amend/Correct; granting 21 Motion to Withdraw 14 and 18 . Signed by District Judge Keith Starrett on 1/3/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:16-CV-147-KS-MTP
BONITA SMITH; MIKE MOZINGO;
JANE HUTTO; ANCE KING;
WAYNE GENERAL HOSPITAL;
ADELINE TURNER; MONICA DOHERTY;
AND JANE DOES 1-5
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss for Lack of Jurisdiction (“Motion
to Dismiss”)  filed by Defendant Wayne General Hospital, the Motion for Judgment on the
Pleadings (“Motion for Judgment”)  filed by Defendant Jane Hutto, and the Motion for Leave
to Amend (“Motion to Amend”)  and Motion to Withdraw  filed by Plaintiff Ralph Smith.
After reviewing the submissions of the parties, the record, and the applicable law, the Court finds
the Motion to Amend  is well taken and should be granted;
the Motion to Withdraw  is well taken and should be granted;
the Motion to Dismiss  should be denied as moot; and
the Motion for Judgment  should be deferred.
This matter is centered around the 2015 justice court judge election in Wayne County,
Mississippi. Plaintiff Ralph Smith (“Plaintiff”) defeated the incumbent, Jane Hutto (“Hutto”), in the
primary election in August 2015. (See Amended Complaint [20-1] at ¶ 11.) Prior to the general
election, Plaintiff visited the home of Mike Mozingo (“Mozingo”), who allegedly attacked and
assaulted him, leading him to seek medical treatment at Wayne General Hospital (the “Hospital”).
(See id. at ¶¶ 12-17.) During his visit to the Hospital’s emergency room, his injuries were
photographed by Monica Doherty (“Doherty”) and/or Adaline Turner (“Turner”), who then
disseminated these photographs through social media. (See id. at ¶ 20.) Plaintiff alleges that these
photographs were circulated throughout Wayne County by Doherty and/or Turner, as well as Bonita
Smith (“Smith”) and Ance King (“King”), in order to interfere with the justice court judge election.
(See id. at ¶¶ 24-28.) It is Plaintiff’s belief that the circulation of these photographs led to his loss
in the general election. (See id. at ¶ 29.)
Plaintiff filed this action on September 22, 2016, against Smith, Mozingo, Hutto, King, the
Hospital, Turner, and Doherty. On November 21, 2016, the Hospital filed its Motion to Dismiss ,
and on November 28, 2016, Hutto filed her Motion for Judgment . Plaintiff filed his first
Motion to Amend  on November 29, 2016. He then filed his Motion to Stay Proceedings on
December 6, 2016. On December 7, 2016, he filed his Motion to Withdraw  these two previous
motions and filed his second Motion to Amend . Plaintiff filed his Response  to the Motion
for Judgment  on December 16, 2016, and Hutto filed her Reply  on December 22, 2016.
In the Amended Complaint [20-1], Plaintiff brings federal claims under 42 U.S.C. §§ 1985
and 1986 against Smith, Mozingo, Hutto, King, Turner, and Doherty, as well as various state law
claims against all defendants.
II. MOTION TO AMEND 
Because no response was filed opposing Plaintiff’s Motion to Amend , the Court will
grant it as unopposed pursuant to Local Uniform Civil Rule 7(b)(3)(E), and Defendants’ Motion
to Dismiss  and Motion for Judgment  will be analyzed using the Amended Complaint [20-1].
Furthermore, Plaintiff’s Motion to Withdraw , which requests that his previous Motion to
Amend  and Motion to Stay Proceedings  be withdrawn, shall also be granted.
III. MOTION TO DISMISS 
In its Motion to Dismiss , the Hospital only argues that the Court has no jurisdiction
because the federal claims against them fail. However, Plaintiff has amended his complaint, and
there are no longer any federal claims pending against the Hospital. Therefore, the Motion to
Dismiss  will be denied as moot.
IV. MOTION FOR JUDGMENT 
Standard of Review
Hutto’s Motion for Judgment  is brought under Federal Rule of Civil Procedure 12(c).
“The same standard of dismissal under Rule 12(c) is the same as that for dismissal for failure to state
a claim under Rule 12(b)(6).” Johnson v. Johnson, 38 F.3d 503, 529 (5th Cir. 2004).
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “A claim 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.” Id.; see also In re Great Lakes
Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’”) (quoting
Twombly, 550 U.S. at 555). “[W]hen a successful affirmative defense appears on the face of the
pleadings, dismissal under Rule 12(b)(6) may be appropriate.” Miller v. BAC Home Loans
Servicing, L.P., 726 F.3d 717, 726 (5th Cir. 2013) (quoting Kansa Reins. Co. v. Cong. Mortg. Corp.
of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994)).
Plaintiff alleges that Hutto has violated 42 U.S.C. §§ 1985 and 1986 by conspiring to
interfere with his civil right to run for justice court judge of Wayne County.1 Because “the existence
of a Section 1985 conspiracy is an element of [a] Section 1986 claim,” the viability of Plaintiff’s
§ 1986 claim depends on his § 1985 claim. See Vanderburg v. Harrison Cnty., Miss. ex rel. Bd. of
Supervisors, 716 F.Supp.2d 482, 493 (S.D. Miss. 2010).
Plaintiff argues that his claim is brought under 42 U.S.C. § 1985(3). (See Response  at
pp. 3-5.) “In order to assert a claim under § 1985(3), a plaintiff must allege some class-based
animus.” Burns-Toole v. Byrne, 11 F.3d 1270, 1276 (5th Cir. 1994). Plaintiff asserts that he is a
“class of one” because Hutto and the other individual defendants “intentionally treated him
differently from others similarly situated who were running for office and/or treated for assault at
the hospital, and there is and was no rational basis for the difference in treatment.” (Amended
Complaint [20-1] at ¶ 36.)
“Typically, a class of one involves a discrete group of people, who do not themselves qualify
as a suspect class, alleging the government has singled them out for differential treatment absent a
rational reason.” Wood v. Collier, 836 F.3d 534, 541 (5th Cir. 2016). These types of claims are “an
application of the principle that the seemingly arbitrary classification of a group or individual by a
governmental unit requires a rational basis.” Integrity Collision Ctr. v. City of Fulshear, 837 F.3d
581, 587 (5th Cir. 2016) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603, 128 S. Ct.
Plaintiff also references 18 U.S.C. § 241 in his Amended Complaint [20-1], but
specifically states that no separate cause of relief is sought under this statute.
2146, 170 L.Ed.2d 975 (2008)) (alterations and internal quotations omitted). As Hutto points out,
a “class of one” claim requires the claim to be against a governmental unit, or at least an agent acting
on behalf of such a unit. The Court knows of no case where “class of one” claims have been
allowed to go forward against non-government entities. Furthermore, the rationale behind these
types of claims does not support an application against non-government entities. Because Hutto is
not alleged to have been acting as a government agent, the Court is inclined to grant her Motion for
Judgment  with respect to the federal law claims against her.
The Court recognizes that Plaintiff never received an opportunity to address this issue with
his “class of one” claim. Because Plaintiff did not assert his “class of one” claim in his Amended
Complaint [20-1] until after the Motion for Judgment  was filed, Hutto was not able to address
this claim until she filed her Reply , after which all briefing on this motion was complete.
Ordinarily, arguments presented for the first time in a reply brief are not properly before the Court.
See McWilliams v. Advanced Recovery Sys., Inc., 108 F.Supp.3d 456, 462 n.2 (S.D. Miss 2015)
(citing Wallace v. Cnty. of Comal, 400 F.3d 284, 292 (5th Cir. 2005)). However, because of the
intervening Motion to Amend , the Court finds that consideration of this argument is proper, but
that, in the interest of justice, Plaintiff should be given a fair opportunity to respond. Plaintiff is
therefore given three weeks from the date of this order to file a sur-response to the Motion for
Judgment , and a ruling shall be deferred until such time. If Plaintiff fails to adequately show
that a “class of one” claim can be brought against a non-governmental entity, his claims under
§§ 1985 and 1986 shall be dismissed with prejudice. If the Court finds that Plaintiff can state a
claim under §§ 1985 and 1986, it will analyze the remaining arguments in Hutto’s Motion for
Other Pending Claims
The pending federal claims against the remaining defendants in this case are identical to the
ones pending against Hutto. In the event that the Court finds that the Motion for Judgment  is
well taken with respect to the federal claims against Hutto, it is likely that the remaining federal
claims fail as well. Plaintiff should therefore show cause in his sur-response why, if his federal
claims against Hutto are dismissed, the remaining federal claims should not be dismissed as well.
Because the Court’s jurisdiction over the pending state law claims is under its supplemental
jurisdiction pursuant to 28 U.S.C. § 1367, if the federal claims are all dismissed, the Court finds that
it would be appropriate to dismiss the remaining state law claims without prejudice. The Fifth
Circuit’s “general rule is to dismiss state claims when the federal claims to which they are pendent
are dismissed.” Parker & Parsley Petro. Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992)
(citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). “[W]hen the single federal-law claim
is eliminated at an early stage of litigation, the district court has a powerful reason to choose not to
continue to exercise jurisdiction.”2 Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351,
108 S. Ct. 614, 98 L.Ed.2d 720 (1988)) (internal quotations omitted). Therefore, Plaintiff should
also address in his sur-response why, if all federal claims are dismissed, the Court should retain
jurisdiction over the remaining state law claims.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion to Amend 
Though there are technically two federal claims in this case, because the § 1986 claim is
dependent on the § 1985 claim, the Court finds that a similar “powerful reason” exists in this
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s Motion to Withdraw is
granted. Plaintiff’s Motion to Amend  and Motion to Stay Proceedings  are withdrawn.
IT IS FURTHER ORDERED AND ADJUDGED that the Hospital’s Motion to Dismiss 
is denied as moot.
IT IS FURTHER ORDERED AND ADJUDGED that Hutto’s Motion for Judgment  is
deferred. Plaintiff is given three weeks from the date of this order to file a sur-reply addressing
why his federal claims against Hutto should not be dismissed with prejudice, why, if the federal
claims against Hutto are dismissed, the remaining federal claims should not be dismissed with
prejudice as well, and why, if all federal claims are dismissed, the Court should retain subject matter
jurisdiction over the remaining state law claims.
SO ORDERED AND ADJUDGED, on this, the
day of January, 2017.
UNITED STATES DISTRICT JUDGE
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