Mawson v. Mississippi State Department of Health

Filing 36

Memorandum Opinion and Order granting 26 MOTION for Summary Judgment. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 12/6/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
ANTHONY R. MAWSON

PLAINTIFF

VS.

CIVIL ACTION NO. 3:11CV643TSL-MTP

MISSISSIPPI STATE DEPARTMENT
OF HEALTH

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Mississippi State Department of Health (MSDH) for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff Anthony R. Mawson opposes the motion, and the court,
having considered the parties’ memoranda, concludes that the
motion should be granted.
Plaintiff, an epidemiologist who formerly worked at the
University of Mississippi Medical Center (UMMC), filed suit
against MSDH in state court on August 11, 2011.

The complaint

alleges that after Mawson gave a statement to the Mississippi
Legislature advocating the need for additional studies on
vaccination safety in January 2009, the then State Health Officer
Dr. Ed Thompson, now deceased, interfered with his position at
UMMC, ultimately resulting in the non-renewal of his contract with
UMMC.

On this factual basis, the complaint sets forth a putative

federal claim for denial of plaintiff’s First Amendment right to
free speech and a putative state law claim for tortious

interference with employment and contractual relations.
seeks compensatory and punitive damages.

Plaintiff

Defendant timely removed

the action to this court on the basis of federal question
jurisdiction under 28 U.S.C. § 1331.
By its motion, MSDH asserts that inasmuch as there is not, in
the usual course, a direct cause of action arising under the
Constitution, plaintiff’s federal claim should have been brought
via 42 U.S.C. § 1983.

See Hearth, Inc. v. Dep't of Pub. Welfare,

617 F.2d 381, 382–83 (5th Cir. 1980) (finding that the federal
courts, and this circuit in particular, have been hesitant to find
causes of action arising directly from the Constitution, and that
42 U.S.C. § 1983 provides the means for seeking relief against a
state actor who violates the Constitution) (internal quotations
omitted).

“Section 1983 provides a private right of action for

damages to individuals who are deprived of ‘any rights,
privileges, or immunities’ protected by the Constitution or
federal law by any ‘person’ acting under the color of state law.”
Stotter v. Univ. of Texas at San Antonio, 508 F.3d 812, 821 (5th
Cir. 2007) (quoting 42 U.S.C. § 1983).

Here, MSDH correctly

points out that because, as a state agency, it is not a “person,”
it is not subject to liability under § 1983.

See Will v. Michigan

State Dep't of Police, 491 U.S. 58, 71 & n.10, 109 S. Ct. 2304,
105 L. Ed. 2d 45 (1989) (holding with regard to suits for monetary
damages, “neither a state or persons acting in their official
2

capacities are ‘persons' under § 1983”); Cronen v. Texas Dept. of
Human Servs., 977 F.2d 934, 936 (5th Cir. 1992) (“The state and the
agency properly argue that they are not ‘persons’ for purposes of
liability under 42 U.S.C. § 1983 (1988).”).
For his part, plaintiff does not dispute any of the
foregoing, and affirmatively maintains that he has not purported
to allege a claim under § 1983 in recognition of the fact that
MSDH is not a “person” under § 1983.

He, instead, argues that

because Dr. Thompson is deceased and he thus has no alternative
avenue of redress for his injuries, “this case is in line with the
cases where the Supreme Court has implied a right of action
directly under the Constitution.”
simply incorrect.

In this regard, plaintiff is

Initially, the court is not persuaded that

suing MSDH, a state agency, was plaintiff’s only avenue to redress
his alleged injuries.

See, e.g., Sorens v. Estate of Mohr, No.

Civ.A. H-05-1195, 2005 WL 1965957 (S.D. Tex. Aug. 16, 2005)
(denying the defendant Estate’s motion to dismiss the plaintiff’s
§ 1983 claim for violation of his constitutional rights for
failure to state a claim).

Further, the three cases cited by

plaintiff in support of his argument that the court should deviate
from well-established law and find the right to a direct action
under the Constitution against the State, do not support this
proposition.

In none of the cases did the Supreme Court imply a

direct action under the Constitution against the State or even the
3

federal government; rather, in each of the cases cited by
plaintiff, the Court allowed a direct action under the
Constitution against a federal actor sued in his individual
capacity.

See Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)
(allowing direct action for constitutional violations against
defendant federal prison guards in individual capacities); Davis
v. Passman, 442 U.S. 228, 245, S. 228, 99 S. Ct. 2264, 60 L. Ed.
2d 846 (1979) (allowing plaintiff to assert direct right of action
under the Fifth Amendment against Congressman in his individual
capacity); Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L.
Ed. 2d 15 (1980) (allowing administratix of decedent’s estate to
maintain both a Bivens action against defendants in individual
capacity and claim under the FTCA).

There is no basis for

allowing a direct action under the Constitution against the State
and defendant’s motion will be granted.
Based on the foregoing, it is ordered that defendant’s motion
to dismiss is granted.1
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 6th day of December, 2012.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

1

In his response to the motion, plaintiff conceded his
state law claim for tortious interference with contractual
relations.
4