Henley et al v. Mississippi Department of Public Safety
ORDER granting in part and denying in part 37 Motion to Dismiss for the reasons set out in the order. The stay of this matter is lifted, and the parties are directed to contact Magistrate Judge F. Keith Ball to request a new scheduling order. Signed by District Judge Daniel P. Jordan III on July 23, 2012. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SCOTT W. HENLEY, ET AL.
CIVIL ACTION NO. 3:10CV590 DPJ-FKB
STEPHEN B. SIMPSON, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF
THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY,
AND ALBERT SANTA CRUZ, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS DIRECTOR OF THE
MISSISSIPPI HIGHWAY PATROL
This lawsuit seeking overtime wages is before the Court on motion of Defendants
Stephen B. Simpson and Albert Santa Cruz for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6). The Court, having considered the parties’ submissions, along
with the pertinent authorities, finds that Defendants’ motion should be granted in part and denied
Facts and Procedural History
Five former canine officers with the Mississippi Highway Patrol filed this action in
federal court seeking overtime wages for time spent caring for and training their dogs. Plaintiffs
sued Public Safety Commissioner Stephen B. Simpson and Highway Patrol Director Albert Santa
Cruz, in their individual and official capacities, seeking unpaid overtime compensation,
injunctive relief, attorney’s fees, and costs pursuant to the Fair Labor Standards Act (FLSA) and
42 U.S.C. § 1983. Amended Compl.  at 2. Defendants submit that dismissal is appropriate
because (1) FLSA violations are not actionable under § 1983; (2) Plaintiffs’ FLSA claims for
damages are barred by the Eleventh Amendment; and (3) private litigants may not seek
injunctive relief under the FLSA. As explained below, the Court finds the motion should be
granted in part and denied in part.
Standard for Dismissal
Defendants moved to dismiss Plaintiffs’ claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).1 In considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”
Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To overcome a Rule 12(b)(6)
motion, Plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote omitted). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). It follows that “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to relief.’” Id. at
679 (quoting Fed. R. Civ. P. 8(a)(2)). “This standard ‘simply calls for enough fact to raise a
Because Defendants filed an Answer, the Court believes Rule 12(c) is actually the
applicable rule. See Jones v. Greninger, 188 F.2d 322, 324 (5th Cir. 1999). The standard for
deciding a motion for judgment on the pleadings pursuant to Rule 12(c) is the same as that under
Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,
330 n.8 (5th Cir. 2002) (“Rule 12(b)(6) decisions appropriately guide the application of Rule
12(c) because the standards for deciding motions under both rules are the same.”).
reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.”
In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly, 550 U.S. at
Section 1983 provides a cause of action against any person who, under color of law,
deprives another of “any rights, privileges or immunities secured by the Constitution and laws . .
. .” 42 U.S.C. § 1983. Section 1983 does not create any substantive rights; it is a procedural
vehicle to provide a remedy for violations of constitutional or statutory rights. Johnston v.
Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989). But where “Congress
has enacted a statute that covers a specific substantive area providing specific remedies, a cause
of action under § 1983 is foreclosed.” Lafleur v. Tex. Dept. of Health, 126 F.3d 758, 759 (5th
Cir. 1997) (finding § 1983 claim was preempted by ADEA).
Here, Plaintiffs employ §1983 as a vehicle to assert violations of the FLSA.
Yet courts have consistently held that the FLSA provides an exclusive remedy for overtime
violations. Barfield v. Madison Cnty., Miss., 984 F. Supp. 491, 509 (S.D. Miss. 1997)
(dismissing § 1983 claims because the FLSA provides the exclusive remedy), abrogated on other
grounds by Washington v. Fred’s Stores of Tenn., Inc., 427 F. Supp. 2d 725 (S.D. Miss. 2006)
(finding state-law negligence and conversion claims not preempted); see also Kendall v. City of
Chesapeake, Va., 174 F.3d 437, 443 (4th Cir. 1999) (concluding “that the mechanisms
established by the FLSA preclude a § 1983 action to enforce FLSA rights”); Britt v. Grocers
Supply Co., Inc., 978 F.2d 1441, 1448 (5th Cir. 1992) (noting that the ADEA is the exclusive
remedy for age discrimination and forecloses actions under § 1983) (citing Zombro v. Baltimore
City Police Dep’t., 868 F.2d 1364, 1369 (4th Cir. 1989) (observing that the ADEA is part of the
FLSA)); Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp. 2d 894, 905 (M.D. Tenn.
2009) (noting “numerous courts have concluded that a plaintiff may not seek relief under §1983
for violations of the FLSA”); O’Quinn v. Chambers Cnty., Tex., 636 F. Supp. 1388, 1392 (S.D.
Tex. 1986) (“Moreover, the FLSA probably provides an exclusive remedy for violations of rights
conferred by the FLSA.”). Therefore Plaintiffs’ § 1983 claims should be dismissed.
Next, the Court considers Plaintiffs’ attempt to obtain injunctive relief and monetary
damages against Simpson and Santa Cruz in their individual and official capacities for alleged
violations of the FLSA.
Claims for Monetary Damages
Defendants initially argue that Plaintiffs’ damage claims are barred by sovereign
immunity. The Eleventh Amendment “bars suits in federal court by citizens of a state against
their own state or a state agency or department.” Delahoussaye v. City of New Iberia, 937 F.2d
144, 146 (5th Cir. 1991). An official capacity suit is essentially a suit against the State and is
subject to sovereign immunity. See Marquez v. Woody , 440 F. App’x 318, 324 n.9 (5th Cir.
2011) (noting that claims against state officials in their official capacities for damages are
entitled to Eleventh Amendment immunity because the state that employs the officers is the real
party in interest); Fennell v. Tex. Educ. Agency, 273 F.3d 1100, 2001 WL 1075862, at *1 (5th
Cir. 2001) (“Suits against state officers in their official capacities seeking the payment of moneys
from the state treasury for alleged compensatory damages, monetary damages, and payments in
the nature of equitable restitution are barred by the Eleventh Amendment.”). Plaintiffs do not
dispute this contention, and the Court finds Plaintiffs’ claims for damages against Defendants in
their official capacities should be dismissed.
On the other hand, the Eleventh Amendment does not bar damage suits against state
officials in their individual capacities. Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006)
(recognizing the “general rule”). But Defendants urge the Court to make an exception in this
case, submitting that these claims for overtime wages, despite being styled “individual capacity
claims,” are fundamentally claims against the State. See Luder v. Endicott, 253 F.3d 1020 (7th
Cir. 2001) (finding the Eleventh Amendment barred a suit for FLSA overtime wages against state
employees in their individual capacities).
In Luder, 145 prison employees sued the warden and deputy warden in their individual
capacities for three-plus years of overtime wages. The Seventh Circuit Court of Appeals
reasoned that if the plaintiffs prevailed, due to the size of the judgment, realistically “[t]he money
will flow from the state treasury to the plaintiffs,” not out of the individual defendants’ pockets.
Id. at 1024. Concluding the suit was “transparently an effort at an end run around the Eleventh
Amendment,” the case was remanded with instructions to dismiss the suit. Id. at 1025.
The Luder analysis is somewhat appealing, but the Fifth Circuit has yet to apply this
rationale to bar an individual-capacity suit.2 In fact, the Fifth Circuit rejected this argument in
Modica, where it acknowledged Luder, but nevertheless ruled that individual-capacity claims
Defendants have not directed the Court to any Fifth Circuit opinions or district court
decision within the circuit extending Eleventh Amendment immunity to individual-capacity
under the FMLA were not barred by the Eleventh Amendment.3 465 F.3d at 183; see also New
Orleans Towing Ass’n v. Foster, No. 99-30995, 248 F.3d 1143, 2001 WL 185033, at *3–4 (5th
Cir. 2001) (affirming denial of Eleventh Amendment immunity as to individual capacity claims
for monetary damages); Hudson v. City of New Orleans, 174 F.3d 677, 687 n.7 (5th Cir. 1999)
(“The Eleventh Amendment does not come into play in personal capacity suits, and the existence
of an indemnification statute promising to pay judgments when an officer is sued in his
individual capacity does not extend the Eleventh Amendment’s protections around the officer.”).
In addition, unlike Title VII, the FLSA specifically provides that individuals can be considered
employers and subject to personal liability. See Lee v. Coahoma Cnty., Miss., 937 F.2d 220, 226
(5th Cir. 1991) (observing that sheriffs “fall within the class of managerial personnel
considered employers by the FLSA”); Donovan v. Grim Hotel Co., 747 F.2d 966, 971–72 (5th
Cir. 1984) (noting that an “employer” under the FLSA is jointly and severally liable under the
FLSA for unpaid wages).
Granting immunity would constitute a departure from the general rule. And while the
Fifth Circuit may be free to modify its position, this Court believes that the motion to dismiss
should be denied under the current state of the law in this circuit.4 Plaintiffs’ individual-capacity
claims for monetary damages under the FLSA may proceed.
The FMLA and the FLSA share the same definition of “employer” and Congress
intended the courts to treat them alike. 465 F.3d at 186.
Defendants are free to appeal this decision to the Fifth Circuit Court of Appeals. See
New Orleans Towing Ass’n, 248 F.3d 1143, 2001 WL 185033, at *2 (“The denial of a motion to
dismiss, which raises a colorable claim of immunity, is appealable under the collateral order
exception to the finality requirement of 28 U.S.C. § 1291 (1993).”).
2. Injunctive Relief
Defendants next contend that injunctive relief is not available to private litigants under
the FLSA. There is a narrow exception to Eleventh Amendment immunity pursuant to Ex parte
Young, 209 U.S. 123 (1908). “To meet the Ex Parte Young exception, a plaintiff’s suit alleging a
violation of federal law must be brought against individual persons in their official capacities as
agents of the state, and the relief sought must be declaratory or injunctive in nature and
prospective in effect.” Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998). Here, Plaintiffs seek an injunction “commanding the Defendants to henceforth remit
overtime compensation for all hours worked over forty (40) hours per week for the care, upkeep,
and training of their law enforcement canines.” Compl.  at 4.
As Defendants point out, however, private litigants do not have a right to seek injunctive
relief under the FLSA; only the Secretary of Labor can pursue injunctive relief under the statute.
See 29 U.S.C. § 211(a) (“Except as provided in section 212 of this title, the Administrator shall
bring all actions under section 217 of this title to restrain violations of this chapter.”); Heitmann
v. City of Chicago, Ill., 560 F.3d 642, 644 (7th Cir. 2009) (finding injunctive relief is permissible
only in suits by the Secretary of Labor); Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d
47, 51 (8th Cir. 1984) (“Courts are in agreement that under this scheme an employee’s action can
be maintained only to recover back wages and liquidated damages and not to obtain injunctive
relief against future violations; only the Secretary is vested with the authority to seek an
injunction.”); Keenan v. Allan, 889 F. Supp. 1320, 1382 (E.D. Wash. 1995) aff’d, 91 F.3d 1275
(9th Cir. 1996) (“[O]nly the Secretary of Labor may seek an order to restrain violations of the
FLSA.”). Plaintiffs ignored this argument in their response, and the Court finds that their claims
for injunctive relief under the FLSA should be dismissed.
In their response to the motion to dismiss, Plaintiffs assert that Defendants’ failure to
compensate them for overtime violated Mississippi Code § 25-3-40 and contract law. These
allegations are not properly before the Court because Plaintiffs raised them for the first time in
response to the motion to dismiss, Plaintiffs were previously granted leave to amend their
Complaint and did not include these claims, and Plaintiffs have not moved to amend their
Complaint a second time.. See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113
(5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly before the court.”).
Based on the foregoing, the Court finds Defendants’ motion should be granted in part and
denied in part. Plaintiffs’ § 1983 claims are dismissed, their claims for injunctive relief are
dismissed, and their claims for monetary damages against Defendants in their official capacities
are dismissed. The motion  is denied as to Plaintiffs’ claims for monetary damages against
Defendants in their individual capacities.
The stay of this matter is lifted, and the parties are directed to contact Magistrate Judge F.
Keith Ball to request a new scheduling order.
SO ORDERED AND ADJUDGED this the 23rd day of July, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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