Hearn v. The Hinds County Board of Supervisors et al

Filing 169

ORDER granting in part and denying in part 42 Motion to Dismiss; granting 150 Motion for Leave to File; denying without prejudice 153 Motion for Judgment on the Pleadings; denying without prejudice 153 Motion to Dismiss; granting 154 Motion for Leave to File; denying 155 Motion For Correction of Header; granting 167 Motion for Leave to File for the reasons stated in the order. Signed by District Judge Daniel P. Jordan III on September 7, 2012. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
BETTY SMITH HEARN

PLAINTIFF

VS.

CIVIL ACTION NO. 3:11cv662-DPJ-FKB

THE HINDS COUNTY BOARD OF
SUPERVISORS, ET AL.

DEFENDANTS
ORDER

This land dispute is before the Court on the Defendants’ Motion to Dismiss [42] and
related motions. In very general terms, the parties dispute the ownership of Smith Drive, a road
forming the border of an apartment complex Plaintiff owns. The Court, having considered the
issues and the parties’ submissions in light of the applicable standards, finds that Defendants’
Motion should be granted in part and denied in part.
I.

Facts and Procedural History
While this should have been a simple matter, it has turned into a mess. As an initial

point, Plaintiff Betty Smith Hearn is attempting to represent herself, and her First Amended
Complaint [6] is long on legal jargon but is otherwise vague, leaving Defendants to guess at the
true nature of her claims. In Defendants’ estimation, Hearn asserts state-law tort claims, a federal
takings claim, and state-law property claims.
In addition to the ambiguity surrounding the First Amended Complaint, the parties have
created a complicated docket with numerous supplemental submissions and redundant filings
that often address issues found in unrelated motions. Hearn alone has filed 47 motions, many of
which are not truly motions but are instead additional responses or legal arguments regarding

previously filed motions. Rarely has there been a motion, response, and reply as the rules
require, making it exceedingly difficult to untangle the issues.
Because of this procedural posture, the Court will attempt to provide a summary of the
relevant history and then rule on various motions in an effort to clean the docket. This review
must first identify the operative complaint and pleaded claims. In January 2012, some three
months after filing her First Amended Complaint, Hearn filed a “Motion to Add Federal
Question Jurisdiction” [39]. In this motion, Hearn claimed that she was surprised by Defendants’
Answer in which they averred lawful possession of the property. Pl.’s Mot. [39] at 1. Hearn
therefore sought leave to “add FEDERAL QUESTION JURISDICTION,” by adding a federal
claim to her previously filed state-law complaint. Id. She contended in part that Mississippi’s
adverse possession law is unconstitutional and therefore gives rise to liability under 42 U.S.C.
§ 1983. The magistrate judge denied that motion without prejudice because Hearn failed to
attach a proposed amended complaint. Order [54] Feb. 1, 2012, at 3–4. Hearn failed to appeal.1
Hearn has made other attempts to amend, starting with a motion [64] to amend the First
Amended Complaint by adding official capacity claims against Hinds County Supervisors Robert
Graham and Phil Fisher. She then filed a separate motion [66] seeking leave to file a second
amended complaint that covered 91 pages and included 30 counts. The new complaint included,
for example, an averment that “the Mississippi Torts Claims Act [is] not relevant to the
complexities, and uniqueness of this case.” Pl.’s Mot. to Amend [66] ¶ 3. On May 14, 2012,
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The magistrate judge could have alternatively adopted Defendants’ argument that the
amendment would be futile because any § 1983 claims are time barred. As noted below, Hearn
was on notice of these claims in 2004. See Taylor v. Cnty. of Copiah, 937 F. Supp. 573, 577
(S.D. Miss. 1994) (holding that § 1983 claims related to taking of property were time barred
because plaintiff had notice of taking more than three years before suing).
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Magistrate Judge Ball entered an order [101] finding that the proposed second amended
complaint failed to comply with Federal Rule of Civil Procedure 8 for lack of a “short and plain
statement showing that the pleader is entitled to relief.” Order [101] May 14, 2012, at 1. Judge
Ball also noted that the motion was untimely. Id.
Hearn did not appeal Judge Ball’s order, but instead filed a Motion for Leave to file
Revised Second Amended Complaint [113]. Her revised pleading was basically a motion for
reconsideration that attached a streamlined version of the proposed second amended complaint.
Under the new complaint, Hearn whittled her claims to two causes of action: “deprivation by
cloud upon title” and “deprivation by unlawful possession.” Pl.’s Mot. [113] Ex. A. Then on
June 29, 2012, Hearn filed a rebuttal [127] to Defendants’ response [121] to her second motion
to amend suggesting that her proposed second amended complaint was a claim to quiet title and
“not solely a tort case.” Pl.’s Rebuttal [127] at 2. She also stated that this is “not a federal
takings claims lawsuit.” Id. at 6. Ultimately though, Hearn explained that she filed a second suit
regarding these same tort claims and “petition[ed] the separation of the claims, to mitigation [sic]
the confusion and misrepresentations authored and vigorously promoted by the Defendants.” Id.
at 11. It appears, therefore, that she intended to abandon tort claims in this suit leaving them for
the subsequently filed suit now docketed under number 3:12-cv-417-CWR-FKB. She concluded
her motion by urging the Court to grant leave to file the proposed second amended complaint.
Judge Ball considered all of this and concluded that the proposed second amended
complaint would amount to the voluntary dismissal of Plaintiff’s tort claims which were the
subject of the pending motion to dismiss. Order [146] July 13, 2012, at 2. Judge Ball therefore
denied the motion. Hearn never appealed, the Court has never granted Hearn leave to amend,
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and the only claims before the Court are those Hearn pleaded in her First Amended Complaint
[6]—i.e., state-law tort and property claims.
As for the First Amended Complaint, Defendants’ moved to dismiss [42], Hearn filed a
Response [51], and Defendants rebutted [59]. All of that took place by February 2012, but
numerous motions and briefs followed. For example, on May 16, 2012, Defendants filed a
Supplement to Motion to Dismiss [104]. In it, Defendants raised an additional argument for
time-bar dismissal. Hearn does not appear to have docketed a direct response to the supplement,
but her June 29, 2012, rebuttal [127] of Defendants’ response [121] to her second motion to
amend [113] also included a motion to strike Defendants’ defenses. The filing primarily
addresses other issues, but states in conclusory fashion that her claims are not time barred. Pl.’s
Rebuttal [127]. Responses, counter-responses, and related submissions followed [147, 148, 149,
150, 151, 152, 154, 157, 158].
The repetitive filings have delayed resolution of the issues because the briefing never
ends. Thus, on August 7, 2012, the Court entered a cease-fire order instructing the parties to
abstain from further filing until the Court rules on the pending motions. The sole exception
listed in the Order was Defendants response to Plaintiff’s recently filed motion for judgment
[153]. Hearn apparently did not receive the order because she filed a subsequent supplement
[161] to her motion for judgment. She has also sought leave to file a rebuttal to Defendants’
response. Pl.’s Mot. for Leave [167].
There may well be a legitimate dispute over Smith Drive, but at this point the issues
remain obscured by moribund claims and this convoluted record. As discussed below, Plaintiff’s
First Amended Complaint generally fails to state a claim against the named Defendants and is
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largely time barred. That said, leave to amend will be granted to name Hinds County,
Mississippi, as the proper party regarding state-law property claims.
As for Hearn’s pending motions, those seeking leave to file rebuttals [150, 154, and 167]
are granted as Hearn has already filed the memoranda. The motion for judgment on the
pleadings [153] is denied without prejudice because the First Amended Complaint is deficient
and must be amended before the Court can consider whether judgment is proper on the
pleadings. Finally, the motion to strike Defendants’ defenses was not docketed as a motion and
otherwise fails to comply with L. U. Civ. R. 7(b). Had a separate motion been filed, it would
have been denied without prejudice.
II.

Standard
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
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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 reasonable expectation
that discovery will reveal evidence of’ the necessary claims or elements.” In re S. Scrap
Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly, 550 U.S. at 556).
III.

Analysis
A.

State-Law Tort Claims
1.

Claims Against Individually Named Defendants

Hearn has sued a number of public officials in their individual and official capacities for
state-law torts. Pl.’s Rebuttal [127] at 2. Defendants argue that all individual claims must be
dismissed pursuant to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § 11-46-1 et
seq. The Court agrees.
The MTCA “provides the exclusive remedy against a governmental entity and its
employees for acts or omissions which give rise to a suit.” Estate of Williams ex rel. Williams v.
City of Jackson, 844 So. 2d 1161, 1164 (Miss. 2003) (en banc) (citations omitted) (applying
Miss. Code Ann. § 11-46-9(1) to plaintiff’s wrongful-death claim against city). Significantly, the
MTCA provides that “no employee shall be held personally liable for acts or omissions occurring
within the course and scope of the employee’s duties.” Miss. Code Ann. § 11-46-7(2). And “a
rebuttable presumption [exists] that any act or omission of an employee within the time and at
the place of his employment is within the course and scope of his employment.” Miss. Code
Ann. § 11-46-5(3); see also Estate of Johnson v. Chatelain ex rel. Chatelain, 943 So. 2d 684,
687 (Miss. 2006). There is an exception to this rule, however, “if the employee’s conduct

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constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic
violations.” Miss. Code Ann. § 11-46-5(2).
Nothing in the First Amended Complaint suggests that the individually named
Defendants acted beyond the course and scope of their respective duties or within the exception
found in section 11-46-5(2). In fact, they are never specifically mentioned after the introductory
paragraph and identification of the parties. The Court concludes that Hearn failed to state a claim
against the individual governmental employees in their individual capacities as to any of her
state-law tort claims. All such claims must be dismissed.2
2.

Claims Against HCBS and HCPW

The First Amended Complaint also names the Hinds County Board of Supervisors
(HCBS) and the Hinds County Public Works (HCPW). Again though, the MTCA “provides the
exclusive remedy against a governmental entity and its employees for acts or omissions which
give rise to a suit.” Estate of Williams, 844 So. 2d at 1164 (citations omitted). Such claims may
be brought against political subdivisions within the limited waivers the MTCA provides.3

2

Two additional grounds for dismissal exist. First, if the acts fall under section 11-465(2), then they are time barred. Second, Hearn abandoned these claims by failing to respond to
Defendants’ argument. See Rutter v. Conseco Life Ins. Co., No. 3:09-cv-680-DPJ-JCS, 2011 WL
2532467, at *5 (S.D. Miss. June 24, 2011) (concluding that plaintiffs conceded arguments that
were not addressed in response brief).
3

Section 11-46-1(i) defines “political subdivision” as

any body politic or body corporate other than the state responsible for
governmental activities only in geographic areas smaller than that of the state,
including, but not limited to, any county, municipality, school district, community
hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport
authority or other instrumentality thereof, whether or not such body or
instrumentality thereof has the authority to levy taxes or to sue or be sued in its
own name.
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Neither HCBS nor HCPW is a political subdivision subject to suit, and claims related to their
alleged acts must be brought against Hinds County, Mississippi. See Bradley ex rel. Wrongful
Death Beneficiaries of Bradley v. City of Jackson, No. 3:08-cv-261-TSL-JCS, 2008 WL
2381517, at *2 & n.3 (S.D. Miss. June 5, 2008) (dismissing Board of Supervisors because it was
“not a political subdivision for purposes of the MTCA”) (citing Brown v. Thompson, 927 So. 2d
733, 737 (Miss. 2006)); see also Smith v. City of Gulfport, Miss., No. 1:09-cv-423-HSO-JMR,
2011 WL 5035976, at *10 (S.D. Miss. Oct. 21, 2011) (concluding that Gulfport Police
Department “[was] not a proper party because it is not a political subdivision or legal entity in
and of itself, but rather is merely a department of the City of Gulfport”); Tuesno v. Jackson, No.
5:08-cv-302-DCB-JMR, 2009 WL 1269750, at *1 (S.D. Miss. May 7, 2009) (finding that
Wilkinson County Jail, Wilkinson County Sheriff’s Department, and Wilkinson County Board of
Supervisors “are not political subdivisions or legal entities in and of themselves, but rather are
merely departments of Wilkinson”). Plaintiff’s state-law tort claims against HCBS and HCPW
must be dismissed.
3.

Statute of Limitations Under the MTCA

Defendants argue alternatively that Hearn has failed to comply with the MTCA’s noticeof-claim requirement and its one-year statute of limitations.4 In 2010, Judge Starrett neatly
summarized the MTCA’s notice-of-claim and statute-of-limitations requirements.
Section 11-46-11(3) of the MTCA states that all actions “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
4

While HCBS, HCPW, and the individually named defendants are dismissed, the Court
also addresses the time-bar arguments in the event Hearn files a second amended complaint
naming Hinds County as a defendant.
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after.” Subsection 3 goes on to state that “filing a notice of claim as required by
subsection (1) . . . shall serve to toll the statute of limitations . . . for one hundred
twenty (120) days from the date the chief executive officer . . . receives the notice
of claim” and following the tolling period, the claimant “shall then have an
additional ninety (90) days to file.” Put simply, a claimant has three hundred
sixty-five (365) days from the date of the alleged wrongful conduct in which to
properly file a notice of claim. Following the proper filing of a notice of claim,
the claimant is allowed an additional two hundred ten (210) days in which to file
suit.
Irby v. Hodge, No. 2:09-cv-223-KS-MTP, 2010 WL 4259942, at *6 (S.D. Miss. Oct. 21, 2010).
In the First Amended Complaint, Hearn references events in 2004 and 2005 as giving rise
to her alleged injuries. Hearn avers first that in 2004, Hinds County officials removed a fence
along the border of Hearn’s property. Pl.’s Am. Compl. [6] at 10. But this very incident is
addressed in a notice of claim Hearn filed with the Hinds County Chancery Clerk on March 29,
2005. See Defs.’ Supplement to Mot. to Dismiss [104] at 2–4.5 Significantly, the notice
acknowledges Hearn’s dispute over Smith Drive and the County’s claim that it has been listed on
the county roads inventory since 1988. Id., Ex. B, at 1. The notice also states that “[t]o the
extent the county claims to own Smith Drive since 1988, the injury began then.” Id. These are
the same claims Hearn now presents. And because Hearn filed her 2005 notice of claim within
one year of the fence removal, the statute of limitations tolled for 210 days. But Hearn waited
until October 21, 2011, to file this suit. Finally, had no notice been filed in 2005, then the claim
would still be untimely. Thus, the Court finds that all state-law tort claims related to the 2004
incident are untimely and subject to dismissal with prejudice.

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“Documents that a defendant attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to her claim.” Causey
v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation omitted).
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Hearn also avers that on some unspecified date in 2009, Hinds County deputies destroyed
the parking lot and yard at Smith Apartments, replacing them with a “second entrance to the
resident of the owner of Parcel 4965-691.1.” Pl.’s Am. Compl. [6] at 11. To the extent these
alleged acts form a basis of Hearn’s suit, she failed to file suit within one year. Additionally, the
record is silent as to whether Hearn filed a notice of claim with respect to the 2009 incident.
Because the date of the alleged tortious conduct occurred at some time in 2009, and, to date,
Hearn has not submitted a notice of claim, the statute of limitations on her state-law tort claims
arising out of the 2009 incidents has run. And even if she filed a notice of claim in 2009, the suit
would still be delinquent. Finally, it appears that these allegations flow from the County’s
alleged ownership of Smith Drive, and Plaintiff has been on notice of that alleged injury since at
least 2004.6
B.

State-Law Property Claims

Because Hearn is proceeding pro se, the Court has attempted to liberally construe the
First Amended Complaint. Viewed in that light, Hearn appears to pursue several property
claims. As best the Court can understand, Hearn requests a bill of particulars with respect to the
property under Mississippi Code Annotated section 11-19-53. She also seeks to “enjoin
Defendants’ from unsubstantiated claims . . . to interests upon” Smith Drive, and references
section 11-17-19, which deals with suits to quiet title. Pl.’s Am. Compl. [6] at 1–2.
While Defendants have had difficulty understanding the First Amended Complaint, the
Court finds that it sufficiently pleaded state-law property claims—though against the wrong
6

Plaintiff periodically makes conclusory statements regarding her ability to show that the
statute has not run, but given the notice she filed in 2004, the Court sees no basis for tolling
outside the MTCA tolling provisions.
10

Defendants—and that Defendants have not addressed those claims in their Rule 12(b)(6) motion.
Thus, while these Defendants are entitled to dismissal, Hearn may seek leave to file a second
amended complaint, consistent with the instructions at the end of this order, substituting Hinds
County, Mississippi, for the current Defendants. See Tuma v. Jackson Mun. Airport Auth., No.
3:09cv517-DPJ-FKB, 2012 WL 1229133, at *2 (S.D. Miss. Apr. 10, 2012) (“Although a court
may dismiss the claim, it should not do so without granting leave to amend, unless the defect is
simply incurable or the plaintiff has failed to plead with particularity after being afforded
repeated opportunities to do so.” (citation and quotations omitted)).7
VII.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [42] is granted with respect to

Hearn’s state-law tort claims. Hearn’s state-law property claims are dismissed, but Plaintiff is
granted leave to file a renewed motion to amend within fourteen days that attaches a proposed
second amended complaint naming the proper party and raising state-law property claims.
Plaintiff’s motions for leave [150, 154, and 167] are granted. Plaintiff’s motions for
judgment [153] is denied without prejudice. Plaintiff’s Motion to Correct Headers [155] is noted
but denied because there is no need to correct the docket as to those pleadings.

7

Because Hearn filed this case on the basis of diversity jurisdiction and asked for relief
that “exceeds $75,000,” she met the amount-in-controversy requirement under 28 U.S.C. § 1332.
Even after dismissal of Hearn’s state-law tort and federal takings claims, this Court retains
diversity jurisdiction over her remaining property claims because the amount in controversy is
determined at the time the action is commenced, so long as Hearn had a good faith belief in
bringing her claims. See Watson v. Blankinship, 20 F.3d 383, 387 (10th Cir. 1994) (“Just
because the court dismisses certain claims, which reduce the amount of recovery, or the jury does
not find plaintiff is entitled to the required amount, does not necessarily destroy jurisdiction or
prove that the plaintiff acted in bad faith.” (citations omitted)).
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Finally, the Court feels compelled to instruct the parties to follow Local Uniform Civil
Rule 7 with respect to future motions and briefs. Prayers for relief should be raised in a single,
separately docketed motion to which there will be one response and one reply. Subsequent
motions and briefs should be limited to the new issues raised in those motions and should not be
used to re-hash legal issues addressed in previously filed motions.
SO ORDERED AND ADJUDGED this the 7th day of September, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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