Omobude v. Mississippi Department of Finance and Administration et al
Filing
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Memorandum Opinion and Order granting re 23 MOTION for Summary Judgment, 25 MOTION to Dismiss. Signed by District Judge Tom S. Lee on 4.21.11 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
FRANK OMOBUDE
PLAINTIFF
VS.
CIVIL ACTION NO.: 3:10CV703TSL-FKB
MISSISSIPPI DEPARTMENT OF
FINANCE AND ADMINISTRATION,
KEVIN UPCHURCH, Executive Director;
CILLE LITCHFIELD, officially and individually;
CLYDE MURREL, officially and individually;
PERRY DUBARD, officially and individually;
and UNKNOWN JOHN DOES 1 - 5
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Defendants Cille Litchfield, Clyde Murrel and Perry Dubard
have filed two motions, in their official capacities, for summary
judgment pursuant to Federal Rule of Civil Procedure 56, and in
their individual capacities, to dismiss for failure to state a
claim upon which relief can be granted under Rule 12(b)(5).
Plaintiff Frank Omobude has not filed a response to either motion.
The court, having considered the motions and memoranda of
authorities, and the attachments accompanying the summary judgment
motion, concludes both motions are due to be granted.
Plaintiff filed this action asserting violations of
42 U.S.C. §§ 1981, 1983 and 1985, the Equal Protection and
Privileges and Immunities Clauses of the Constitution of the
United States, and various state laws, based on allegations that
he was subjected to unlawful employment discrimination during his
employment with defendant Mississippi Department of Finance and
Administration (MDFA).
Litchfield, Murrell and Dubard are
employees of MDFA, who have been sued in their official and
individual capacities.
For a second time, defendants have moved to dismiss
plaintiff’s claims against them in their individual capacities
based on plaintiff’s failure to timely effect service of process.
This court denied these defendants’ first motion on this basis on
January 31, 2011, stating:
To the extent that a plaintiff sues a defendant in his
individual capacity, he is required to serve such
defendant personally, as an individual, in accordance
with the requirements of Mississippi Rule 4(d)(1)(A).
... This has not yet been done; and the putative
service on the defendants in their individual capacities
by service on Jim Hood is ineffective to serve them
individually. However, pursuant to Federal Rule of
Civil Procedure 4(m), the plaintiff has 120 days from
the date the complaint is filed to effect service, and
“until that 120-day period has expired, any attempt to
seek dismissal on the grounds of defective service
clearly [is] premature .” McGinnis v. Shalala, 2 F.3d
548, 551 (5th Cir. 1993).
Omobude v. Mississippi Dept. of Finance and Admin., 2011 WL
346522, 1 (S.D. Miss. Jan. 31, 2011).
Now that more than 120 days
have passed since the complaint was filed and plaintiff still has
not served them with process personally, defendants have again
moved to dismiss.
Their motion will be granted.
Plaintiff has
not responded to defendants’ motion, much less undertaken to show
either that he has served defendants properly, or that he had good
cause for failing to timely serve these defendants.1
1
See Fed. R.
The record reflects that summons was issued for these
defendants on February 25, 2011, but there is nothing to show that
they were ever served.
2
Civ. P. 4(m) (“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.
But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.”).
The motion to dismiss will be granted.
As urged in their motion for summary judgment, these
defendants, in their official capacities, are entitled to
dismissal of plaintiff’s § 1981 claim since there is no
independent cause of action under § 1981 against a state actor,
and that any violation of §1981 by a state actor may be remedied
only through an action under 42 U.S.C. §1983.
See Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 735, 109 S. Ct. 2702, 2723, 105
L. Ed. 2d 598 (1989) (“We hold that the express ‘action at law’
provided by § 1983 for the ‘deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,’ provides the
exclusive federal damages remedy for the violation of rights
guaranteed by § 1981 when the claim is pressed against a state
actor.”).
To the extent plaintiff seeks money damages under § 1983, the
defendants, in their official capacity, have Eleventh Amendment
immunity.
See Will v. Michigan Dept. of State Police, 491 U.S.
58, 66 (1989) (“Section 1983 provides a federal forum to remedy
many deprivations of civil liberties, but it does not provide a
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federal forum for litigants who seek a remedy against a State for
alleged deprivations of civil liberties.”).
As for plaintiff’s §
1983 claim against them for injunctive relief, namely,
reinstatement, this court previously noted in its order dismissing
MDFA that “under the Ex Parte Young doctrine, Eleventh Amendment
immunity does not extend to the claim for reinstatement, to the
extent such claim is asserted against the defendant state
officials in their official capacities.”
Omobude v. Miss. Dept.
of Finance and Admin., Civil Action No. 3:10CV703 (S.D. Miss. Mar.
4, 2011).
However, “[i]n Ex Parte Young, the Supreme Court noted
that the state official must have the power to perform the act
required in order to overcome the jurisdictional bar of the
Eleventh Amendment.”
Klein v. Univ. of Kansas Med. Ctr., 975 F.
Supp. 1408, 1417 (D. Kan. 1997).
Defendants have presented an
affidavit from Henry E. Williams, who works in MDFA’s Human
Resources Department.
Williams explains that these defendants do
not have the authority to reinstate plaintiff’s employment with
MDFA.
Plaintiff has offered no evidence to the contrary.
Accordingly, plaintiff’s claim for reinstatement against these
defendants will be dismissed.
Plaintiff’s § 1985 claim will also be dismissed, since “a
state agency and its officers represent a single entity; as a
matter of law state officials of a single agency generally cannot
conspire with their employer agency or with one another in the
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carrying out of their official duties as agency employees.”
Fontenot v. Texas, No. 93-8567, 1994 WL 733504, 4 (5th Cir. 1994)
(citation omitted).
Plaintiff has purported to assert a claim herein directly
under the Constitution.
However, a plaintiff cannot sue state
officials directly under the Constitution where he has a remedy
under § 1983.
See Hearth, Inc. v. Dept. of Pub. Welfare, 617 F.2d
381, 382-83 (5th Cir. 1980) (“Congress has provided a means of
seeking relief against state officials who violate the
Constitution”); Azul-Pacifico, Inc. v. City of Los Angeles, 973
F.2d 704, 705 (9th Cir.1992) (“Plaintiff has no cause of action
directly under the United States Constitution”).
The moving defendants argue that plaintiff’s state law claims
against them are cognizable, if at all, only under the Mississippi
Tort Claims Act, Miss. Code Ann. § 11-46-1 et seq., and that
plaintiff failed to timely file a notice of claim and commence
this action.
See Miss. Code Ann. § 11-46-11 (3) (providing that
“[a]ll actions brought under the provisions of this chapter shall
be commenced within one (1) year next after the date of the
tortious, wrongful or otherwise actionable conduct on which the
liability phase of the action is based, and not after; provided,
however, that the filing of a notice of claim as required by
subsection (1) of this section shall serve to toll the statute of
limitations for a period of ninety-five (95) days ....”).
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Based on the foregoing, it is ordered that the motions of
defendants Cille Litchfield, Clyde Murrel and Perry Dubard to
dismiss and for summary judgment are granted.
SO ORDERED this 21st day of April, 2011.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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