Bianchini v. City of Jackson et al

Filing 61

ORDER granting 36 Motion to Dismiss; granting in part and denying in part 38 Motion to Dismiss; denying 50 Motion to Amend/Correct for the reasons set out in the Order. Signed by District Judge Daniel P. Jordan III on August 4, 2017. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

TINA BIANCHINI

PLAINTIFF

V.

NO. 3:16-CV-510-DPJ-FKB

CITY OF JACKSON, ET. AL

DEFENDANTS
ORDER

This employment dispute is before the Court on Defendants’ separately filed motions to
dismiss Plaintiff’s Second Amended Complaint (“SAC”) [36, 38] and Plaintiff’s Motion to
Amend the SAC [50]. Having considered the parties’ submissions, the Court finds that the City
of Jackson’s motion to dismiss should be granted; Defendant Lee Vance’s motion to dismiss
should be denied as to the equal-protection claim but otherwise granted; and Plaintiff’s motion to
amend should be denied.
I.

Background
Plaintiff Tina Bianchini is a white former police officer with the Jackson Police

Department (“JPD”). On March 26, 2015, she was arrested and charged with domestic violence
following an altercation with fellow officer Aaron Allen. See SAC [33] at 3. After being
charged, Bianchini claims JPD Chief Lee Vance forced her to resign. She says that the decision
was based on her race and sex, because Vance retained Allen, a similarly situated AfricanAmerican male.
Aggrieved by the decision, Bianchini sued Vance and the City of Jackson on June 24,
2016. Id. In her first Complaint, Bianchini alleged two federal-law claims under 42 U.S.C.
§ 1983 based on alleged equal-protection and unlawful-seizure violations. Compl. [1-1] at 4–5.
She also brought state-law claims for false arrest, false imprisonment, and malicious prosecution.

Id. at 5–6. The City of Jackson answered that Complaint on July 26, 2016 [3]. Since then, this
case has had a hard time leaving the starting gates due to Bianchini’s efforts to amend her
complaint.
Bianchini first sought leave to amend on September 26, 2016. See Pl.’s Mot. [12]. That
motion sought to add claims against Commander Tyree Jones regarding alleged sexual
harassment and also attempted to add claims against the original defendants related to that
conduct. Believing the motion was unopposed, the magistrate judge granted it in a text order the
following day, clearing the way for Bianchini to file her Amended Complaint [13] on September
27, 2016. But apparently the parties were not fully in agreement, and on October 11, 2016,
Defendants moved to strike [16] the Amended Complaint. They argued then—as they do now—
that the Amended Complaint would be futile for lack of specific facts establishing supervisory or
municipal liability. See Defs.’ Mot. [16]. The magistrate judge initially struck the amended
complaint to allow additional briefing, see Nov. 21, 2016 Order [27], but he eventually granted
leave to amend, see Jan. 17, 2017 Order [31]. Although the magistrate judge acknowledged
Defendants’ futility argument, he concluded that “the best course of action” was to allow the
amendment subject to future dispositive motions. Jan. 17, 2017 Order [31] at 2. Accordingly,
Bianchini refiled the SAC [33] on January 26, 2017. In doing so, she added sexual-harassment
claims against Jones.
After the SAC was filed, the parties participated in a February 16, 2017 casemanagement conference and agreed to certain deadlines. Most notably, the parties agreed to a
March 20, 2017 deadline to amend the pleadings. See CMO [40]. Then, on February 20, 2017,
before any responsive pleadings were filed, Defendants Vance and the City of Jackson both
moved to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(6). See Defs.’ Mots.

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[36, 38]. Bianchini responded to both motions [45, 46], and Defendants replied [48, 49]. But to
further complicate matters, Bianchini filed a new motion [50] on April 13, 2017, seeking leave to
amend the SAC. Defendants responded in opposition on April 27, 2017 [51], and Bianchini
declined to reply.
II.

Analysis
A.

Motions to Dismiss

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)). 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
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 facts 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).
In this case, there is some overlap between the two Defendants’ motions. Accordingly, this

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portion of the Order will be organized by the claims reflected in the SAC. Where it makes sense,
the arguments as to the separate Defendants will be segregated.
1.

Equal Protection

Bianchini claims that she was fired because she is a white woman, whereas the City and
Defendant Vance protect African-American male officers. The Equal Protection Clause
“commands that no State shall ‘deny to any person within its jurisdiction the equal protection of
the laws,’ which is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This
constitutional protection “reaches only state actors, but § 1983 equal protection claims may be
brought against individuals as well as municipalities.” Fitzgerald v. Barnstable Sch. Comm., 555
U.S. 246, 257 (2009). Here, Bianchini asserts her claim against the City and Vance.
“To state a claim of . . . discrimination under the Equal Protection Clause and section
1983, the plaintiff ‘must allege and prove that [she] received treatment different from that
received by similarly situated individuals and that the unequal treatment stemmed from a
discriminatory intent.’” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 227 (5th Cir. 2012)
(quoting Priester v. Lowndes Cty., 354 F.3d 414, 424 (5th Cir. 2004)).
a.

Vance’s Motion

Vance says that Bianchini fails to plead a plausible claim that he intended to discriminate
based on race or sex and that he is therefore entitled to qualified immunity. “The basic steps of
[the] qualified-immunity inquiry are well-known: a plaintiff seeking to defeat qualified
immunity must show: (1) that the official violated a statutory or constitutional right, and (2) that
the right was clearly established at the time of the challenged conduct.” Morgan v. Swanson,
659 F.3d 359, 371 (5th Cir. 2011). Vance never takes his qualified-immunity arguments past the

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first step, resting instead on the contention that the SAC fails in various ways to state plausible
federal claims against him. Accordingly, this Order is limited to that same question.
As for the equal-protection claim, Vance relies heavily on Yul Chu v. Mississippi State
University, where the Fifth Circuit affirmed dismissal of an equal-protection claim under Rule
12(b)(6). 592 F. App’x 260, 267 (5th Cir. 2014). There, the plaintiff “merely state[d] that the
university discriminated against him and did not discriminate against white faculty, but he
fail[ed] to elaborate.” Id. Accordingly, “[t]here [were] no factual allegations to support that
claim.” Id. Not surprisingly, the court held that these conclusory allegations “failed to state an
equal-protection claim upon which relief may be granted.” Id.
But Bianchini does more. Granted, she makes some conclusory statements that Vance
treated African-American men better. See SAC [33] at 4–5. But she backs that statement up
with specific facts regarding a specific comparator, Allen, the African-American male officer
with whom Bianchini had the disputed altercation. Id. at 3–4. In fact, Bianchini very plainly
says in her SAC that (1) Allen was the aggressor, id. at 3; (2) he put her in the hospital, id.; (3) a
grand jury indicted him on domestic-violence charges, id. at 5; and (4) the domestic-violence
charges against Bianchini were remanded to the file, id. Yet Vance terminated her employment
and not Allen’s. Id.
Despite all this, Vance says the SAC “does not make one factual allegation that could be
construed as demonstrating that Vance’s decision to terminate Plaintiff’s employment was
motivated by racial or gender-based animus against white or female officers.” Def.’s Mem. [39]
at 7. But in the race- and sex-discrimination contexts, proof that similarly situated employees
from different classes were treated more favorably provides circumstantial evidence of
discriminatory intent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); see

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also Advanced Tech. Bldg. Sols., LLC v. City of Jackson, Miss., No. 3:12-CV-389-LG-JMR,
2014 WL 3783949, at *3–4 (S.D. Miss. July 31, 2014) (noting in equal-protection case that “[a]
plaintiff may prove discriminatory intent through either direct evidence or circumstantial
evidence” (citing Gaalla v. Brown, 460 F. App’x 469, 479 (5th Cir. 2012))).
As noted before, the standard under Rule 12(b)(6) “‘simply calls for enough facts 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 at 587 (citing Twombly, 550 U.S. at 556).
Bianchini has sufficiently pleaded specific facts to state a plausible equal-protection claim
against Vance.
b.

The City’s Motion

The City echoes many of Vance’s arguments, but it also contends that Bianchini has
failed to plead a sufficient case of municipal liability. It is black-letter law that a municipality
like the City of Jackson cannot be held vicariously responsible for the unconstitutional acts of its
employees under respondeat superior. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436
U.S. 658, 691 (1978). Instead, “municipal liability under section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir.
2001).
Citing this authority, the City says that Bianchini’s SAC fatally fails to identify an
official policy or custom. Def.’s Mem. [37] at 7. For her part, Bianchini essentially
acknowledges that point but pivots to the single-incident exception. See Pl.’s Mem. [46] at 2
(citing Knox v. City of Monroe, No. 07-606, 2009 WL 57115, at *1 (W.D. La. Jan. 8, 2009)). “It
is well-established that a single unconstitutional action by a municipal actor may give rise to

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municipal liability if that actor is a final policymaker.” Bolton v. City of Dall., Tex., 541 F.3d
545, 548 (5th Cir. 2008); see also Adv. Tech. Bldg. Sols., LLC, 817 F.3d at 165 (noting “liability
attaches only where the decisionmaker possesses final authority to establish municipal policy
with respect to the action ordered”). So the question is whether the single-incident exception
applies.
The problem for Bianchini is that she never explores this issue with any depth, and the
arguments she does offer have been rejected in binding authority. According to Bianchini,
Vance “was the decision maker with regard to [her] termination,” because “there was no
grievance policy under which [she] could contest [Vance’s] decision to terminate her.” Pl.’s
Mem. [46] at 3 (emphasis added). In other words, because there is no procedure for appeal,
Vance is the final “decision maker,” and his acts bind the City. Id. (emphasis added).
Even assuming Vance is the final decision-maker, the argument confuses decisionmaking
authority with final policymaking authority. In Bolton v. City of Dallas, Texas, a former police
chief was terminated by a city manager. 541 F.3d at 546. Because the manager could terminate
employment without direct oversight, the terminated police chief claimed that the manager was a
policymaker. Id. at 547. The Fifth Circuit affirmed summary judgment, explaining that there
exists a “difference between final decisionmaking authority and final policymaking authority.”
Id. at 548 (citing Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1247 (5th Cir. 1993)). Put simply,
“discretion to exercise a particular function does not necessarily entail final policymaking
authority over that function.” Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986);
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)).
Significantly, the Bolton opinion rejects Bianchini’s sole argument for municipal
liability—that no JPD or City policy allowed review of Vance’s decision. See Pl.’s Mem. [46] at

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3. According to the Fifth Circuit, neither Pembaurv. City of Cincinnati nor City of St. Louis v.
Praprotnik “made a ‘suggestion of any qualification such as “initial” discretion or the
decisionmaker’s action being subject to appeal or the like.’” Id. at 549 (quoting Jett, 7 F.3d at
1247–48). As such, the Fifth Circuit has “eschew[ed] the importance of administrative
reviewability in distinguishing final decisionmaking authority from final policymaking
authority.” Id. (quoting Gelin v. Hous. Auth. of New Orleans, 456 F.3d 525, 530 (5th Cir.
2006)). Accordingly, the Court finds that the City’s motion to dismiss the equal-protection claim
should be granted.
2.

Sexual Harassment

In her SAC, Bianchini also says she “endured sexual harassment at the hands of Jones
when he supervised her.” SAC [33] at 6. There is no dispute that sexual harassment violates the
Equal Protection Clause of the United States Constitution. Lauderdale v. Tex. Dep’t of Criminal
Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007). But the issue is whether Vance or
the City of Jackson can be held liable for Jones’s alleged conduct. They say no.
a.

Vance’s Motion

Though Bianchini says Jones harassed her, she nevertheless brings an individual-capacity
claim against Vance based on Jones’s alleged conduct. As the parties recognize, Vance “cannot
be held liable under section 1983 for the actions of subordinates, like [Jones,] on any theory of
vicarious or respondeat superior liability.” Estate of Davis ex rel. McCully v. City of N.
Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (citations omitted).
That said, “[s]upervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional violation.”

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Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (citation and quotation marks omitted).
“Under this analysis, customs or widespread practices are akin to official policies.” Estate of
Henson v. Callahan, 440 F. App’x 352, 356 (5th Cir. 2011) (citation omitted). To show
“supervisor liability for constitutional violations committed by subordinate employees, plaintiffs
must show that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations
of others’ constitutional rights committed by their subordinates.” Wernecke v. Garcia, 591 F.3d
386, 401 (5th Cir. 2009) (internal quotation marks and citation omitted, alterations in original).
According to Vance, Bianchini has failed to plead specific facts stating a plausible claim against
him for Jones’s conduct.
Bianchini begins her response by saying that she has “identified an official policy or
custom that violated her right to [be] free from sexual harassment.” Pl.’s Resp. [45] at 8. As
support, she quotes the following averments from the SAC:
[T]he defendants had a policy or custom of covering up misconduct of male
police officers as well as a policy and custom of a code of silence, intimidation
and retaliation against employees who complained of or reported misconduct of
other officers.
SAC [33] at 5.
Jones, also an African-American male, was known throughout the department for
receiving promotions despite his habit of engaging in inappropriate relationships
with female subordinates, who knew it would be futile to report Jones’s sexual
indiscretions to Vance.
Id. at 4.
[D]efendants maintained a custom or policy of female employees refusing to file
complaints about sexual misconduct of high ranking male police officers to
protect their positions within JPD.
Id. at 6; see Pl.’s Resp. [45] at 8–9.
When considering these averments, the Court starts by “identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal,
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556 U.S. at 679 (2009). For example, in Bell Atlantic Corp. v. Iqbal, the Supreme Court
disregarded the following averment as conclusory: “[P]etitioners ‘knew of, condoned, and
willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter
of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate
penological interest.’” Id. at 680. Bianchini’s attempts to link Vance to Jones’s conduct are no
better. “[T]he allegations of a policy or custom and its relationship to the constitutional violation
cannot be conclusory but must contain specific facts.” Von Eschen v. League City Tex., No. 0020059, 2000 WL 1468838, at *1 (5th Cir. 2000) (emphasis added) (citing Spiller v. City of Tex.
City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (holding that conclusory descriptions of
policy or custom are insufficient)). Here, the averments are insufficient to find a plausible claim
that Vance himself—acting with deliberate indifference—adopted an official policy or
widespread custom allowing sexual harassment.
Bianchini seems to recognize this deficiency, and other than quoting the abovereferenced passages, she never offers a legal argument that the passages are sufficient. Instead,
she says Vance “recognizes that he can be liable if his behavior created a hostile or abusive
working environment,” so she seeks permission to amend the SAC to allege a failure-to-train
claim. Pl.’s Resp. [45] at 9–10. On this record, the Court finds that the sexual-harassment claim
was not sufficiently pleaded and should be dismissed.
b.

The City’s Motion

The City also seeks dismissal of the sexual-harassment claim, based on some of the same
arguments addressed above. The results are the same. In addition, the City says the SAC fails to
plead any facts that would establish any of the elements for municipal liability. See Piotrowski,
237 F.3d at 578. Rather than address this independent basis for the City’s motion, Bianchini

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merely states the legal standards for sexual-harassment claims under Title VII and § 1983. See
Pl.’s Resp. [46] at 3–5. What she says is not necessarily wrong; she might have had a valid Title
VII case against the City. But as stated before, there is no respondeat superior liability under
§ 1983. And Bianchini never explains how the SAC establishes a valid claim of municipal
liability for Jones’s alleged harassment. This claim is therefore dismissed.
3.

Fourth Amendment Unlawful Seizure

The Fourth Amendment to the United States Constitution provides protection from
unlawful seizures. To prevail on such a claim under § 1983, Bianchini must show that she was
arrested without probable cause. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004).
But as addressed above, she has additional hurdles to clear before she can hold Vance or the City
responsible for an allegedly improper seizure. As to Vance, there is nothing in the SAC
suggesting that he participated in the arrest. And there are no averments that would survive Rule
12(b)(6) based on supervisory liability. See Monell, 436 U.S. at 691. Regarding the City,
Bianchini offers no substantive response, stating instead that she would like to amend her SAC.
The motions are therefore granted.
4.

First Amendment

Bianchini says that she was deprived of her First Amendment right to file domesticviolence charges against Allen. See SAC [33] at 1. Later in the SAC, she explains that “JPD
officers, acting pursuant to orders from Jones, refused to allow Bianchini to swear out an
affidavit against Allen.” Id. at 4 (emphasis added). Assuming she has sufficiently alleged
protected speech—as she addresses at length in her responses—Bianchini never counters
Defendants’ arguments that she failed to sufficiently plead supervisory or municipal liability.
Again, nothing in her SAC links Jones’s alleged interference to Vance or otherwise establishes a

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basis for supervisory liability. Likewise, municipal liability has been insufficiently pleaded as to
the City. See Piotrowski, 237 F.3d at 578 (holding that plaintiff must show “a policymaker; an
official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or
custom”). These claims are dismissed.
5.

Malicious Prosecution

Bianchini never responds to this portion of Defendants’ motions, which otherwise appear
meritorious. The motions are therefore granted.
B.

Plaintiff’s Motion for Leave to Amend the SAC

Bianchini files her motion to amend under Federal Rule of Civil Procedure 15(a)(2). But
as Defendants correctly note, Bianchini filed her motion after the CMO deadline for
amendments. Rule 16(b) provides that scheduling orders, such as the CMO’s now-expired
amendment deadline, “may be modified only for good cause and with the judge’s consent.” Fed.
R. Civ. P. 16(b). If a party shows good cause under Rule 16(b), the Court will grant amendment
upon proper motion where justice so requires under Rule 15(a). Squyres v. Heico Cos., L.L.C.,
782 F.3d 224, 237 (5th Cir. 2015).
“The good cause standard requires the ‘party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party needing the extension.’” S&W
Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A
Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
Whether good cause exists is determined based on four factors: “(1) the explanation for the
failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a continuance to cure such

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prejudice.” E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012) (internal quotation
marks omitted) (quoting Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008)).
In this case, Bianchini should have known the good-cause standard would apply because
Defendants cited it in their Rule 12(b)(6) replies before Bianchini moved for leave to amend.
See Vance Reply [48] at 2; City Reply [49] at 2. Yet Bianchini ignored this standard when she
moved for leave to file a third amended complaint—a motion she filed without a supporting
memorandum as required by Local Rule 7(b)(4). She then declined to reply when Defendants
filed their joint memorandum [51] explaining why the good-cause factors weigh against her
motion.
Bianchini does cite Harbin v. Washington in her motion for the proposition that leave to
amend should be granted when a defendant invokes qualified immunity. No. 3:95-CV-84-BA,
1996 WL 33370663 (N.D. Miss. Mar. 14, 1996), aff’d, 96 F.3d 1442 (5th Cir. 1996). In that
case, the plaintiff was given one opportunity to amend his deficient complaint. But Bianchini
has not shown that the claims she wishes to add could not have been asserted had she acted with
diligence. S&W Enters., L.L.C., 315 F.3d at 535. In fact, many of the purported claims relate to
failure-to-train allegations against Vance, facts that a former JPD officer like Bianchini should
have known.
Bianchini has had several opportunities to get this right, and even considering the
proposed Third Amended Complaint, the Court anticipates further futility motions. As it stands,
this case has been stuck at the pleading stage for one year, and it is time to move on. On this
record, the Court finds no good cause and therefore denies the motion to amend.

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III.

Conclusion
The Court has considered all arguments raised by the parties; those not addressed in this

Order would not have changed the outcome. For the reasons given, the Court grants the City of
Jackson’s Motion to Dismiss [36]. Defendant Vance’s Motion to Dismiss [38] is denied as to the
equal-protection claim but is otherwise granted. Plaintiff’s motion to amend [50] is denied.
SO ORDERED AND ADJUDGED this the 4th day of August, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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