Harper v. Ms Dept. of Human Services et al

Filing 15

ORDER granting in part and denying in part 11 Motion to Dismiss; denying as moot 14 Motion to Continue. Plaintiff is granted up to and through May 20, 2013, to amend her complaint to state individual-capacity claims against Harrell. Signed by District Judge Carlton W. Reeves on 4/15/2013. (Copy mailed to plaintiff at address listed on docket sheet.) (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
CAROLYN J. HARPER

PLAINTIFF

v.

CAUSE NO. 3:12-CV-759-CWR-LRA

MISSISSIPPI DEPARTMENT OF
HUMAN SERVICES, ET AL.

DEFENDANTS

ORDER
Before the Court is the motion to dismiss filed by two of the defendants in this action, the
Mississippi State Personnel Board and Diane Harrell. Docket No. 11. The plaintiff moved to
continue in lieu of filing a response brief. Docket No. 14. After reviewing the factual allegations,
arguments, and applicable law, the motion to dismiss will be granted in part and denied in part, and
the motion to continue will be denied as moot.
I.

Factual and Procedural History
In November 2012, plaintiff Carolyn J. Harper filed this complaint in this Court against the

Mississippi Department of Human Services, the Mississippi State Personnel Board, and several
individuals who appear to be employees of those agencies. Docket No. 1. Harper alleged that on
January 27, 2010, she was subjected to several unlawful and tortious acts, including false arrest,
retaliation, theft, wrongful termination, fraud, and assault. Id. at 1-2. She sought reinstatement and
damages of $7 billion. Id. at 3.
An EEOC Charge of Discrimination was attached to the complaint. Docket No. 1-1. In it,
Harper alleged that the Mississippi Department of Human Services had terminated her in violation
of the Age Discrimination in Employment Act and the Americans with Disabilities Act. Id.
Considering this document alongside the allegations in the complaint, it appears that Harper alleges
she was wrongfully terminated from employment with the Department of Human Services, and
brings claims against that agency and the Mississippi State Personnel Board relating to their conduct
during and after that termination.
At present, the only defendant that has been served with process is Dianne Harrell. Docket
No. 9. A state government website indicates that she is Director of the Employee Appeals Board of
the State of Mississippi. Counsel for the State of Mississippi has entered his appearance and filed

this motion to dismiss on Harrell’s behalf and on behalf of the Mississippi State Personnel Board.
See Docket No. 11. No other agencies or defendants have been served with process, and therefore
no claims against those agencies or defendants are resolved in this Order. Docket No. 10.
II.

Arguments
The Mississippi State Personnel Board and Harrell argue that they are immune from liability

on all of Harper’s federal and state law theories of relief. Docket No. 11.
Harper responded by filing a motion to continue. Docket No. 14. The document asserts a
number of legal conclusions – e.g., “3) 7.9.13 Unlawful use of FMLA to reduce permanent state
employee salary” – but does not actually request a continuance. The Court will construe the
document as Harper’s response brief.
The defendants did not file a rebuttal.
III.

Legal Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of actions that fail “to state

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts the
plaintiff’s factual allegations as true and makes reasonable inferences in the plaintiff’s favor.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain “more than an unadorned,
the defendant-unlawfully-harmed-me accusation,” but need not have “detailed factual allegations.”
Id. (quotation marks and citation omitted). The plaintiff’s claims must also be plausible on their face,
which means there is “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citation omitted). The Court need not accept as
true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Id. (citation omitted).
Since Iqbal, the Fifth Circuit has stated that the Supreme Court’s “emphasis on the
plausibility of a complaint’s allegations does not give district courts license to look behind those
allegations and independently assess the likelihood that the plaintiff will be able to prove them at
trial.” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011).
IV.

Discussion
A.

State law and 42 U.S.C. § 1983 claims

“The Eleventh Amendment bars suits by private citizens against a state in federal court. The
2

bar applies not only to the state itself, but also protects state actors in their official capacities.” K.P.
v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (citations omitted). “It is clear, of course, that in the
absence of consent a [federal court] suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.” Lewis v. Univ. of Texas Med.
Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011) (quotation marks and citation omitted); see
Bryant v. Military Dep’t of Miss., 381 F. Supp. 2d 586, 591 (S.D. Miss. 2005). “[A] suit against state
officials for retroactive monetary relief, whether based on federal or state law, must be brought in
state court.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 122 (1984).
In addition, States are not liable for claims arising under 42 U.S.C. § 1983 because States
are not considered “persons” under that statute. Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989); see Bryant, 381 F. Supp. 2d at 592. “Section 1983 provides a federal forum to remedy
many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek
a remedy against a State for alleged deprivations of civil liberties.” Will, 491 U.S. at 66.
The Mississippi State Personnel Board is an arm of the State of Mississippi. Because the
State of Mississippi has not consented to be sued in federal court for state law claims, and because
it has no liability under § 1983, those claims against it will be dismissed. For the same reasons,
Harper’s state law and § 1983 claims against Harrell in her official capacity, if any, will also be
dismissed.1 See LeBlanc, 627 F.3d at 124.
B.

Claims Against Harrell in her Individual Capacity

“Plaintiffs suing governmental officials in their individual capacities . . . must allege specific
conduct giving rise to a constitutional violation. This standard requires more than conclusional
assertions.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted).
Harper’s complaint does not contain specific allegations describing what Harrell did to
violate Harper’s rights. As a result, the complaint does not plausibly show how Harrell could be
liable to Harper under any cause of action. Harrell’s individual-capacity claims may be dismissed
from this suit.
1

Harper’s state law claims are also barred by the statute of limitations because she did not file a notice of
claim within one year of January 27, 2010. See Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 202 (Miss. 1999)
(“The Mississippi Legislature has conclusively stated that the one-year statute of limitations set out in § 11-46-11(3)
applies to all actions against governmental entities under the Mississippi Tort Claims Act, regardless of any other
statutes of limitations that would otherwise apply.”)

3

Plaintiffs who fail to state a plausible claim against a defendant, though, are generally
entitled to amend their complaint to make their best case. See Gordon v. Davis, No. 3:10-CV-579,
2011 WL 3665128, at *5 (S.D. Miss. Aug. 19, 2011) (“Courts typically allow pro se plaintiffs to
amend their complaints when the action is to be dismissed pursuant to court order”). Accordingly,
Harper shall have up to and through May 20, 2013, in which to file an amended complaint that
explains how Harrell is liable under § 1983 in her individual capacity. See Nat’l Corporate Tax
Credit Fund VII v. Busching, No. 3:04-CV-559, 2006 WL 13236, at *2 (S.D. Miss. Jan. 3, 2006)
(granting leave to amend instead of dismissal where plaintiff failed to plead fraud with specificity).
Harper is cautioned that her amended complaint must comply with Federal Rules of Civil
Procedure 8 and 12. As discussed above, blanket assertions that a defendant is liable are not enough;
the complaint must contain sufficient “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation
omitted).
V.

Conclusion
All claims pending against the Mississippi State Personnel Board are dismissed. Also

dismissed are all state law and official-capacity claims pending against Harrell. Harper is granted
up to and through May 20, 2013, to amend her complaint to state individual-capacity claims against
Harrell.
Harper’s Title VII claims are unaddressed in this Order because the EEOC Charge of
Discrimination suggests that they lie against the Mississippi Department of Human Services only,
which has not been served with process.
For these reasons, the motion to dismiss in granted in part and denied in part, and the motion
to continue is denied as moot.
SO ORDERED, this the 15th day of April, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

4