Taylor et al v. Epps et al

Filing 39

ORDER granting in part and denying in part 28 Motion to Dismiss; granting in part and denying in part 28 Motion to Dismiss for Lack of Jurisdiction for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on May 18, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KENYA TAYLOR, ET AL.

PLAINTIFFS

V.

CIVIL ACTION NO. 3:14CV352 DPJ-FKB

CHRISTOPHER EPPS, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL.

DEFENDANTS

ORDER
This civil-rights action is before the Court on motion of Defendants for dismissal
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiffs have responded in
opposition. Having considered the parties’ submissions, along with the pertinent authorities, the
Court finds that Defendants’ motion should be granted in part and denied in part, as set forth
below.
I.

Factual and Procedural History
The eleven plaintiffs in this action are current or former correctional officers at the

Central Mississippi Correctional Facility (CMCF) in Pearl, Mississippi, which falls under the
Mississippi Department of Corrections (MDOC). On November 28, 2013, shortly after
“muster,” these female guards were separated from the male guards and subjected to individual
strip searches in the bathroom. Am. Compl. [25] at 3. Plaintiffs “were required to disrobe down
to their underwear, pull up their bras, rub themselves between their thighs, run their hands around
their underwear, turn around and bend over.” Id. at 3–4. They contend the searches were not
conducted in accordance with MDOC’s policies and violated their Fourth and Fourteenth
Amendment rights to be free from unreasonable searches. Plaintiffs also assert state-law claims

of false imprisonment and negligent and intentional infliction of emotional distress. In their
prayer for relief, they seek punitive damages, expenses, and attorneys’ fees.
Plaintiffs named the following six individuals as defendants in their individual and
official capacities: Christopher Epps, former Commissioner of MDOC; Johnnie Denmark,
Superintendent of CMCF; and Andrease Buckner, Kimeiriakis Buck, Travis Crane, and Flora
Bogan, all correctional officers with MDOC. Plaintiffs explain that Buckner, Buck, Crane, and
Bogan were “involved in conducting the illegal strip searches” and Epps and Denmark are liable
based on “their supervisory roles within MDOC and . . . in developing, implementing, and
enforcing MDOC policies.” Pls.’ Resp. [31] at 1.
Defendants Epps, Denmark, Buckner, and Bogan answered Plaintiffs’ Amended
Complaint and moved for dismissal under Rules 12(b)(1) and 12(b)(6). Neither Buck nor Crane
joined in the motion, and it appears that neither has filed an answer. The moving Defendants
submit that the § 1983 official-capacity claims are barred by Eleventh Amendment sovereign
immunity, the § 1983 individual-capacity claims are insufficiently pleaded and otherwise barred
by qualified immunity, and the state-law claims are barred by the Mississippi Tort Claims Act
(MTCA). The Court addresses each of these arguments below.
II.

Motion to Dismiss Standard
In their motion to dismiss, Defendants invoke both Rules 12(b)(1) and 12(b)(6). The

Court presumes that Defendants seek dismissal under Rule 12(b)(1) for those claims barred by
Eleventh Amendment sovereign immunity. See Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343
(5th Cir. 1996) (“Because sovereign immunity deprives the court of jurisdiction, the claims

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barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with
prejudice.”). All other claims will be evaluated under Rule 12(b)(6).
A.

Rule 12(b)(1)

“A Rule 12(b)(1) motion should be granted only if it appears certain that the plaintiff
cannot prove a plausible set of facts that establish subject-matter jurisdiction.” Davis v. United
States, 597 F.3d 646, 649 (5th Cir. 2009) (per curiam) (internal quotation marks omitted). In
ruling on a Rule 12(b)(1) motion, “the court may consider any one of the following: (1) the
complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the
complaint, undisputed facts, and the court’s resolution of disputed facts.” Id. at 649–50 (citing
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008)). Finally, the party asserting
subject-matter jurisdiction bears the burden of proof. Id. at 649.
B.

Rule 12(b)(6)

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.
Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999) (per curiam)). 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.
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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 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 556).
III.

Analysis
A.

Section 1983 Official-Capacity Claims

Defendants first assert that Plaintiffs’ § 1983 official-capacity claims are barred by
Eleventh Amendment 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) (internal quotation marks
omitted). An official-capacity suit for damages 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) (per curiam) (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).
In response, Plaintiffs argue that their Amended Complaint fixes the problem by asserting
claims under the MTCA, which, according to them, “represents a waiver of sovereign
immunity.” Pls.’ Resp. [31] at 5. Plaintiffs’ point is not entirely clear.1 If Plaintiffs intended to
1

Some of the confusion comes from the various uses of the term “sovereign immunity.”
Mississippi courts use the term to reference the immunities from suit found in the MTCA. See,
e.g., Brantley v. City of Horn Lake, Miss., 152 So. 3d 1106, 1108 (Miss. 2014) (en banc).
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suggest that the MTCA waives Eleventh Amendment sovereign immunity as to the § 1983
official-capacity claims, then the argument fails. The MTCA does offer limited waivers from the
sovereign immunity codified in Mississippi Code Section 11-46-3, but it expressly preserves
Mississippi’s right to invoke Eleventh Amendment sovereign immunity. Miss. Code Ann. § 1146-5(4); see also Delaney v. Miss. Dep’t of Pub. Safety, No. 3:12CV229TSL-MTP, 2013 WL
286365, at *3 (S.D. Miss. Jan. 24, 2013), aff’d, 554 F. App’x 279 (5th Cir. 2014) (same). It is
more likely that Plaintiffs have simply waived the § 1983 official-capacity claims in light of the
Eleventh Amendment and instead pursue MTCA official-capacity claims. The § 1983 officialcapacity claims will therefore be dismissed without prejudice. See Warnock, 88 F.3d at 343
(noting that dismissal under the Eleventh Amendment must be without prejudice). The MTCA
official-capacity claims are addressed below.
B.

Section 1983 Individual-Capacity Claims

Defendants next move for dismissal of Plaintiffs’ § 1983 individual-capacity claims
based on qualified immunity. “Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012). To determine if an individual is entitled to qualified immunity, the Court applies a twostep analysis. The Court first asks “whether, considered in the light most favorable to the
plaintiff, the plaintiff has alleged facts that, if proven, would establish that the official violated

Likewise, “the terms ‘state sovereign immunity’ and ‘Eleventh Amendment immunity’ are often
used interchangeably to mean the same thing” (i.e., immunity from suit in federal court). Union
Pac. R.R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 342 (5th Cir. 2011) (per curiam). And in
this case, the parties at times fail to explain whether their references to “sovereign immunity”
invoke the MTCA or the Eleventh Amendment.
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the plaintiff’s constitutional rights.” Senu-Oke v. Jackson State Univ., 283 F. App’x 236, 238
(5th Cir. 2008) (per curiam). If the defendant’s conduct did not violate the plaintiff’s
constitutional rights, the defendant is entitled to qualified immunity. Id.
The second prong requires the court to consider
whether the defendant’s actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. To make this determination,
the court applies an objective standard based on the viewpoint of a reasonable
official in light of the information then available to the defendant and the law that
was clearly established at the time of the defendant’s actions.
Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007) (citation omitted).
Even before Iqbal and Twombly, the Fifth Circuit observed that plaintiffs pleading
individual-capacity claims may not plead conclusions. Schultea v. Wood, 47 F.3d 1427, 1433
(5th Cir. 1995); see also Cox v. Kaelin, 577 F. App’x 306, 312–13 (5th Cir. 2014) (construing
Schultea as requiring more than mere conclusions but rejecting “heightened” pleading standard in
this context). And when, as here,
a public official pleads the affirmative defense of qualified immunity in his
answer, the district court may, on the official’s motion or on its own, require the
plaintiff to reply to that defense in detail. By definition, the reply must be tailored
to the assertion of qualified immunity and fairly engage its allegations.
Id., 47 F.3d at 1433.
Under these standards, the Court considers whether (1) Plaintiffs adequately pleaded that
Defendants Epps, Denmark, and Bogan violated a constitutional right or that any Plaintiff other
than Taylor has a claim against Defendant Buckner; and (2) even assuming all Defendants
violated a constitutional right, whether their actions were objectively reasonable.

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1.

Sufficiently Averred Constitutional Violations
a.

Epps and Denmark

Defendants insist that the Amended Complaint fails to allege Epps or Denmark were
personally involved in the strip searches. Plaintiffs appear to concede the point, agreeing that
“there is no evidence that Epps or Denmark ‘had any personal involvement in the strip search,’”
but they argue that “there is still a plausible claim for relief against Epps and Denmark under the
MTCA with respect to the development, implementation, and supervision of MDOC’s strip
search policy.” Pls.’ Resp. [31] at 6 (emphasis added). The Court could stop here and dismiss
the federal claims against Defendants Epps and Denmark as abandoned.2
Even assuming Plaintiffs meant to press their federal claims against these Defendants in
their roles as supervisory officials “for the implementation of policies of the Department of
Corrections,” Am. Compl. [25] at 2, they have not demonstrated liability. A supervisory official
may be held liable only if “‘he implements unconstitutional policies that causally result in the
constitutional injury.’” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Gates v. Tex.
Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)). Here, Plaintiffs do
not allege that MDOC’s policies regarding searches are unconstitutional. Quite the contrary, they
claim that the subject searches were unconstitutional in part because they were conducted in
violation of MDOC’s policies. See Am. Compl. [25] at 4 (“Upon information and belief, the
strip searches that Plaintiffs were subjected to were not authorized in writing, and were not

2

Plaintiffs’ state-law claims under the MTCA are addressed later in this Order, but it
bears noting that Plaintiffs’ Complaint only contains state-law claims of false imprisonment and
negligent and intentional infliction of emotional distress. It is devoid of any state-law claims
related to development or implementation of MDOC policies.
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justified under MDOC’s own policies.”). Accordingly, the Court finds Plaintiffs’ § 1983
individual-capacity claims against Epps and Denmark are dismissed as confessed, or
alternatively, for failure to state a claim.
b.

Bogan and Buckner

According to Defendants, the Amended Complaint contains only one specific allegation:
“[A]t least one of the Plaintiffs, Kenya Taylor, was pat searched by Defendant Buckner around
her breast after disrobing.” Am. Compl. [25] ¶ 11. Defendants therefore assert that only Taylor
has stated a specific claim against Buckner and none of the Plaintiffs have sufficiently pleaded a
claim against Bogan.
Plaintiffs insist in response that the Amended Complaint aptly describes the entire group
of Plaintiffs being searched by all of the non-supervisory defendants—Buckner, Buck, Bogan,
and Crane. But the question for the Court is whether Plaintiffs have pleaded their claims against
the individual Defendants in more than conclusory terms. While Plaintiffs as a whole have
alleged that Defendants—also as a whole—subjected them to strip searches that were not based
on reasonable suspicion, they have not outlined the specific conduct of each Defendant with
respect to each Plaintiff.
Of equal concern, Plaintiffs claim “Defendants had no reasonable suspicion that these
individual plaintiffs were carrying contraband,” Am. Compl. [25] ¶ 14, but they offer no facts to
support this conclusory statement. The averment therefore fails to offer “sufficient enough facts
to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570.
When “[f]aced with sparse details of claimed wrongdoing by officials, trial courts
routinely require plaintiffs to file a reply under Federal Rule of Civil Procedure 7(a) to qualified
8

immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). Accordingly, the Court
exercises its discretion to order a Rule 7 reply addressing the qualified-immunity defense.
Defendants’ motion to dismiss the § 1983 individual-capacity claims against Bogan and Buckner
is denied without prejudice. Defendants may resubmit a motion to dismiss on the basis of
qualified immunity, or a motion for summary judgment, after Plaintiffs have filed their Rule 7(a)
reply.3
2.

Objective Reasonableness

Defendants claim that even if the searches violated Plaintiffs’ constitutional rights, the
officers did not violate clearly established law. To determine whether a law is “clearly
established,” the Court “asks whether the law so clearly and unambiguously prohibited the
conduct that every reasonable official would understand that what he is doing violates the law.”
Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013). And “[a]nswering in the affirmative
requires the court to be able to point to controlling authority—or a robust consensus of
persuasive authority—that defines the contours of the right in question with a high degree of
particularity.” Id. (internal quotation marks omitted).
Here, Plaintiffs contend that Defendants were required to find “individualized reasonable
suspicion” before conducting a strip search. There is support for their position. See McDonell v.
Hunter, 809 F.2d 1302 (8th Cir. 1987) (“In light of the legitimate governmental interest in

3

Another option would be an order granting the motion to dismiss, but such dismissals are
generally entered without prejudice to the plaintiffs’ right to amend. See Harvey v. City of
Brandon, Miss., No. 3:14cv739–DPJ–FKB, 2015 WL 461811, at *3 (S.D. Miss. Feb. 4, 2015)
(allowing motion to amend when facts were insufficiently pleaded). In this case, the Court
concludes that a Rule 7 reply is the more appropriate remedy, largely for the reasons examined in
Schultea.
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maintaining security at correctional institutions, it is our view . . . that a reasonable suspicion
standard should be adopted for strip searches of correction officers while working in correctional
facilities.”). Indeed the Fifth Circuit has noted, albeit in an unpublished opinion, that “[a]t least
three circuits have held that reasonable suspicion is the appropriate standard for the partial strip
search of prison staff.” Rouse v. Tex. Dep’t of Criminal Justice Institutional Div., 479 F. App’x
612, 614 (5th Cir. 2012) (per curiam). Though the Rouse parties did not dispute the legal
standard, the Fifth Circuit nevertheless noted, “[W]e agree with the district court that the prison
officials were required to have reasonable suspicion that appellant was carrying contraband in
order to justify the partial strip search of the plaintiff.” Id. And the Court further noted that
“[t]he standard requires ‘individualized suspicion’ specifically directed to the person who is
targeted for the strip search.” Id. The Rouse opinion was issued before the subject incident.4
Defendants never address the reasonable-suspicion standard or the cases Plaintiffs cite in
support of it. Instead, they generally argue that
[i]t would not be clear to a reasonable correctional officer or prison official that
conducting a search of guards for illegal contraband, especially given the
problems that prisons face with correctional officers smuggling in contraband,
would be “unlawful” and a violation of federal law.
Defs.’ Mem. [29] at 12; see also Reply [33] at 2. Defendants offer no specific legal authority for
this position.
So, as the issues now stand, the parties take contrary positions on what the clearly
established law required in 2013 when this incident occurred. Plaintiffs contend that the
individualized-reasonable-suspicion standard was clearly established, whereas Defendants
4

Plaintiffs also note that the MDOC’s own internal policies track, verbatim, the
individualized-reasonable-suspicion standards found in these cases.
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contend that they acted with objective reasonableness when conducting strip searches based on
systemic concerns. The Court will not decide which party is correct until it hears more from
both. Defendants will need to provide legal argument as to why the individualized-reasonablesuspicion standard was not clearly established in 2013. And Plaintiffs will need to offer more
than conclusory factual averments that the Defendants lacked individualized reasonable
suspicion (assuming that was the clearly established standard). For these reasons, Defendants’
motion is denied without prejudice to their right to reassert the matter after Plaintiffs’ Rule 7
reply.
C.

MTCA

The Mississippi Tort Claims Act provides the exclusive remedy against a governmental
entity and its employees. Essentially, the MTCA waives sovereign immunity for tort claims but
sets out twenty-five specific exemptions. Miss. Code Ann. § 11-46-9(1). If any exemption
applies, the entity is immune.
1.

Individual-Capacity Claims

As a threshold matter, Defendants assert that any state-law claims against them in their
individual capacities are due to be dismissed pursuant to section 11-46-7(2), which provides:
An employee may be joined in an action against a governmental entity in a
representative capacity if the act or omission complained of is one for which the
governmental entity may be liable, but no employee shall be held personally liable
for acts or omissions occurring within the course and scope of the employee’s
duties. For the purposes of this chapter an employee shall not be considered as
acting within the course and scope of his employment and a governmental entity
shall not be liable or be considered to have waived immunity for any conduct of
its employee if the employee’s conduct constituted fraud, malice, libel, slander,
defamation or any criminal offense.

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Defendants reason that because there is no allegation that they acted outside the course and scope
of their duties with MDOC, the individual-capacity claims are barred.
Plaintiffs counter that the MTCA claims survive, but it is unclear whether they ever
respond to this specific argument as to the individual-capacity claims. Indeed their only
substantive argument focuses on section 11-46-9(1)(d) and does not mention Defendants’
arguments based on section 11-46-7(2). See Pls.’ Mem. [31] at 11. To the extent the individualcapacity state-law claims are not abandoned, they are dismissed with prejudice pursuant to
section 11-46-7(2) for the reasons Defendants state.
2.

Official-Capacity Claims

Defendants assert sovereign immunity as to the state-law official-capacity claims based
on the MTCA and the Eleventh Amendment. Neither argument is ripe for consideration.
a.

Eleventh Amendment Sovereign Immunity

Defendants contend that “Plaintiffs’ official capacity claims against the Defendants, both
federal and state law, should be dismissed on the basis of sovereign immunity.” Defs.’ Reply
[33] at 2 (emphasis added). Defendants did not specify whether they raised this argument with
respect to the MTCA or the Eleventh Amendment, but it appears in a paragraph addressing the
Eleventh Amendment. Assuming Defendants invoked the Eleventh Amendment, they appear to
be correct because the amendment bars official-capacity state-law claims brought in federal
court. See Fox v. Mississippi, 551 F. App’x 772, 774–75 (5th Cir. 2014) (per curiam) (affirming
dismissal of § 1983 and state-law claims brought against defendants in their official capacities)).
See also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 122 (1984) (“[A] suit against
state officials for retroactive monetary relief, whether based on federal or state law, must be
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brought in state court.”). The problem is that Defendants first raised this argument in their
Reply. Defs.’ Reply [33] at 2. And “[i]t is the practice of . . . the district courts to refuse to
consider arguments raised for the first time in reply briefs.” Gillaspy v. Dall. Indep. Sch. Dist.,
278 F. App’x 307, 315 (5th Cir. 2008) (per curiam). Accordingly, this argument is denied
without prejudice. Plaintiffs should be given an opportunity to respond.
b.

MTCA Sovereign Immunity

Alternatively, Defendants contend that these claims fall within the discretionary-function
exemption provided for in section 11-46-9(1)(d):
A governmental entity and its employees acting within the course and scope of
their employment or duties shall not be liable for any claim: . . . [b]ased upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a governmental entity or employee thereof, whether
or not the discretion be abused . . . .
In 2014, the Mississippi Supreme Court “overhauled its analysis of discretionary function
immunity.” Boroujerdi v. City of Starkville, 158 So. 3d 1106, 1108 (Miss. 2015) (en banc)
(citing Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014)); see also Fountainbleu
Mgmt. Servs., L.L.C. v. City of Tupelo, No. 14-60664, 2015 WL 1570213, at *1 (5th Cir. Apr. 9,
2015) (vacating the entry of summary judgment and remanding case for reconsideration in light
of Brantley). Now,
[t]he Court first must consider the broadest function involved in order to make a
baseline determination of whether the overarching function is discretionary or
ministerial. The Court then must examine any narrower duty associated with the
activity at issue to determine whether a statute, regulation, or other binding
directive renders that particular duty a ministerial one, notwithstanding that it may
have been performed within the scope of a broader discretionary function.

13

Brantley, 152 So. 3d at 1114–15. In other words, “a plaintiff may defeat sovereign immunity,
even when a government entity’s act furthered a discretionary function or duty, when the plaintiff
proves that the act also furthered a more narrow function or duty which is made ministerial by
another specific statute, ordinance, or regulation promulgated pursuant to lawful authority.” Id.
at 1115.
Plaintiffs embrace Brantley, asserting that because strip searches of MDOC employees
are specifically restricted by MDOC policies, the duties are ministerial, not discretionary. They
argue that “[t]he mandatory directives of the policy . . . create ministerial duties that specifically
restrict strip searches to certain specific times, locations, and circumstances.” Pls.’ Resp. [31] at
12; see also MDOC “Control of Contraband/Body Searches - Staff” Policy [31-1] at 4.
Defendants, however, ignore Brantley, rely exclusively on cases decided prior to 2014, and
dismiss without discussion the possibility that MDOC guidelines could “transform the duty of
performing . . . searches from discretionary to ministerial.” Defs.’ Reply [33] at 3.5
In the end, the Court is unwilling to delve into this new approach to discretionaryfunction immunity without the benefit of complete briefing (especially when the Eleventh
Amendment may otherwise bar the state-law claims in this Court). Accordingly, Defendants’
motion to dismiss the state-law official-capacity claims under the discretionary-function

5

The Court notes that in Brantley, the city was subject to rules and regulations
promulgated by the State Board of Health. Id. at 1116. And in Boroujerdi, the city, after
undertaking sewer maintenance (a discretionary function), was subject to the Federal Water
Pollution Control Act and Mississippi Department of Environmental Quality regulations. 158
So. 3d at 1113–14 (reversing summary judgment and remanding to give the plaintiff an
opportunity to point to a statute, regulation, or ordinance rendering the city’s inaction
ministerial). Here, Plaintiffs point to internal policies within the MDOC. Neither side addresses
the effect of this distinction, if any, on the analysis.
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exemption of the MTCA is denied without prejudice. Defendants, if they choose, may later
move to dismiss or for summary judgment on these grounds, provided they address Brantley and
Boroujerdi.
III.

Conclusion
For the reasons explained, the Court finds Defendants’ motion should be granted in part

and denied in part. Plaintiffs’ § 1983 official-capacity claims against all moving defendants are
dismissed without prejudice; Plaintiffs’ § 1983 individual-capacity claims against Epps and
Denmark are dismissed with prejudice; and Plaintiffs’ individual-capacity state-law claims
against all moving defendants are dismissed under the MTCA with prejudice. Defendants’
motion is denied without prejudice as to Plaintiffs’ official-capacity state-law claims and as to
Plaintiffs’ § 1983 individual-capacity claims against Bogan and Buckner.
Plaintiffs are directed to file a Rule 7 reply, as explained in this Order, addressing
Defendants’ qualified-immunity defense and alleging with specificity the conduct of each
Defendant with respect to each Plaintiff, within fourteen (14) days of this Order. The Reply shall
also provide a factual basis for a plausible claim that Defendants lacked individualized
reasonable suspicion for the strip searches. After the Rule 7 reply, the parties are instructed to
confer and discuss whether the stay of this case should remain in place pending another motion
from Defendants. If Defendants anticipate another motion in light of the Rule 7 reply, then they
must file it within 14 days of that reply. If not, the parties should notify the Magistrate Judge that
the stay on discovery may be lifted.
Finally, Plaintiffs have served Defendants Buck and Crane, but neither has filed an
answer, and Plaintiffs have not moved for default judgment. Plaintiffs are directed to move for
15

default judgment as to these Defendants, or announce that they have abandoned their claims
against Buck and Crane, within fourteen (14) days of this Order. If Plaintiffs choose to pursue
their claims against Buck and Crane, their conduct should also be outlined in the Rule 7 reply.
SO ORDERED AND ADJUDGED this the 18th day of May, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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