Bianchini v. City of Jackson et al
ORDER granting 82 Motion to Strike; terminating 83 Motion for Summary Judgment; granting 87 Motion for Discovery for the reasons set out in the Order. The stay of discovery is lifted. The parties are to contact Magistrate Judge F. Keith Ball within ten (10) days of this Order to schedule a telephonic case management conference to set the parameters of discovery and any applicable deadlines. The Clerk is directed to amend the docket text as to Bianchini's October 30, 2017 filing 81 to reflect a title of "Rule 7(a) Reply," instead of Amended Complaint. Signed by Chief District Judge Daniel P. Jordan III on April 16, 2018.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:16-CV-510-DPJ-FKB
CHIEF LEE VANCE
Plaintiff Tina Bianchini asks the Court to allow her to conduct discovery  to respond
to Defendant Lee Vance’s motion for summary judgment  based on qualified immunity. In
addition, Vance seeks to strike  Bianchini’s Third Amended Complaint, which was
erroneously filed in response to the Court’s request for a Rule 7(a) reply. For the reasons that
follow, Vance’s motion to strike  is granted; Bianchini’s motion for discovery  is
granted; and Vance’s motion for summary judgment  is terminated without prejudice to his
right to refile following discovery.
Facts and Procedural History
The facts underlying this lawsuit were set forth in the Court’s August 4, 2017 Order
granting in part and denying in part Defendants’ motions to dismiss. Order . In the Order,
the Court dismissed all claims except Bianchini’s equal-protection claim against Vance in his
individual capacity. In very general terms, Bianchini, a white former police officer, claims
Jackson Police Department Chief Lee Vance forced her to resign following her arrest for
domestic violence. She insists Vance’s actions were motivated by race and sex, because Vance
retained at least one similarly situated African-American male.
After the ruling on the motions to dismiss, Vance moved for an order requiring Bianchini
to file a Rule 7(a) reply detailing her claims against him in his individual capacity. Bianchini did
not respond, and on September 22, 2017, the Court ordered Bianchini to docket the Rule 7(a)
reply within thirty days and stayed discovery, subject to the filing of a qualified-immunity
motion. Order .
Instead of filing a Rule 7(a) reply, Bianchini filed a Third Amended Complaint ,
despite being denied leave to do so in the Court’s August 4, 2017 Order . Vance promptly
moved to strike . Bianchini acknowledged her error, admitting she “should have called [it] a
Rule 7(a) Reply.” Pl.’s Resp.  at 2. But as Vance points out, the filing goes beyond adding
facts to support her equal-protection claim. For example, the Third Amended Complaint names
Vance in his individual and official capacities. See 3d Am. Compl.  at 2.
Matters are further complicated by the fact that Vance filed a motion for summary
judgment  based on qualified immunity, addressing allegations raised in the Third Amended
Complaint. See Mot.  at 2–3. And for her part, Bianchini filed a Rule 56(d) motion ,
seeking an opportunity to conduct discovery to fully respond to Vance’s motion.
So, as a threshold matter, the Court agrees that Bianchini should not have filed a Third
Amended Complaint. Her October 30, 2017 filing  should have been titled a “Rule 7(a)
Reply,” and the Clerk will be directed to amend the docket text. That filing  is not the
operative complaint. Vance’s motion to strike is granted to the extent that an Amended
Complaint was impermissibly filed. The filing  will be treated, and referred to, as a Rule
7(a) reply; the additional facts alleged in support of the equal-protection claim against Vance in
his individual capacity are properly before the Court. With that issue resolved, the Court turns to
Bianchini’s Rule 56(d) motion.
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. Though a party may seek summary judgment at any
time, Rule 56(d)(1) permits the Court to defer considering a summary-judgment motion or deny
it when a nonmovant “shows by affidavit or deceleration that, for specified reasons, it cannot
present facts essential to justify its opposition” to the motion. The Court may “allow time to
obtain affidavits or declarations or to take [additional] discovery” or enter appropriate orders.
Fed. R. Civ. P. 56(d)(2)(3). The decision to grant or deny a Rule 56(d) motion is within the
sound discretion of the Court. Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d
887, 894 (5th Cir. 2013). But Rule 56(d) motions are “‘broadly favored and should be liberally
granted’ because the rule is designed to ‘safeguard non-moving parties from summary judgment
motions that they cannot adequately oppose.’” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.
2010) (quoting Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)).
In addition, as pointed out by Vance, the Fifth Circuit has established a procedure “under
which a district court may defer its qualified immunity ruling if further factual development is
necessary to ascertain the availability of that defense.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th
Cir. 2012); see Def.’s Resp.  at 3 (collecting cases). “[A] district court must first find that
the plaintiff’s pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Backe, 691 F.3d at 648 (internal quotation marks and citation omitted). Then, “if
the court remains unable to rule on the immunity defense without further clarification of the
facts, it may issue a discovery order narrowly tailored to uncover only those facts needed to rule
on the immunity claim.” Id.
Arguably, the first step has already occurred here. The Court previously denied Vance’s
motion to dismiss the equal-protection claim. So, the question for today is whether the Court
requires further clarification of the facts to rule on qualified immunity.
In his motion for summary judgment, Vance sets forth three primary arguments: (1) he
is not a final decisionmaker and therefore cannot be liable under § 1983; (2) Bianchini cannot
show that similarly situated individuals were treated differently; and (3) his decision to terminate
Bianchini was objectively reasonable.
Vance says that he cannot be individually liable under § 1983 because he was not a final
decisionmaker in Bianchini’s termination. Vance is correct that in certain circumstances an
individual who is not a final decisionmaker cannot be liable for employment decisions under
§ 1983. See Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 605 (5th Cir. 2001) (holding that
individual defendants who “did not fire [plaintiff] directly, but merely recommended her
termination to the board, which made the final decision,” could not be liable for § 1983 violation
“no matter how unconstitutional their motives”); Owens v. City of Flowood, Miss., No. 3:16-CV451-CWR-LRA, 2017 WL 368725, at *2 (S.D. Miss. Jan. 23, 2017) (dismissing individualcapacity claims against alderman where none of the municipal board members could implement
policy individually because any action required a vote from the full board); Kermode v. Univ. of
Miss. Med. Ctr., No. 3:08-CV-584-DPJ-FKB, 2010 WL 2683095, at *3 (S.D. Miss. July 2, 2010)
(dismissing individual-capacity claims against plaintiff’s department chair who allegedly made
defamatory statements to university administration and noting plaintiff’s complaint suggested
“others made the ultimate decision”); Bluitt v. Hous. Indep. Sch. Dist., 236 F. Supp. 2d 703, 729–
30 (S.D. Tex. 2002) (holding principal not liable under § 1983 for recommending termination to
But these cases do not square with the facts here. Vance insists the Mayor and the Civil
Service Commission were the final decisionmakers in Bianchini’s termination. Def’s. Mem.
 at 8. He relies on the City of Jackson Employee Handbook, which states that “[t]he
Disciplinary Action Review Committee shall consider disciplinary actions proposed by
Department Directors [such as Vance], and shall specifically consider all proposed demotions,
suspensions and dismissals for regular employees.” Handbook [83-13] at 5–6 (CMCF
pagination) (emphasis added). And he points to the Civil Service Rules and Regulations, which
mandate a pre-termination hearing before the Civil Service Commission. Def.’s Mem.  at 9–
It is not apparent to the Court how either of these regulations apply to the case at hand.
Vance did not terminate Bianchini under the procedures outlined in the City of Jackson
Handbook or the Civil Service Rules and Regulations. It is undisputed that he gave Bianchini an
ultimatum to resign or be terminated, and she chose to resign. Bianchini Resignation [83-5]; see
Def.’s Mem.  at 2 (noting Bianchini resigned to avoid being terminated). This case is more
akin to a constructive discharge than a dismissal decision that was prompted by a supervisor and
adopted by a board or approved by a committee. See, e.g., Perret v. Nationwide Mut. Ins. Co.,
770 F.3d 336, 338 (5th Cir. 2014) (“[A] plaintiff may be constructively discharged if the
employer gives the employee an ultimatum to quit or be fired.”).
And Vance’s evidentiary submissions to support his argument that the Mayor terminated
Bianchini further muddy the waters. He points to a “City of Jackson Personnel Action” form
signed by the Mayor on April 7, 2015, reflecting that Bianchini was terminated on March 26,
2015. Personnel Action Form [83-4]; Def.’s Mem.  at 10 (characterizing the form as
evidence that “the Mayor approved Chief Vance’s recommendation to terminate Plaintiff”). But
Bianchini signed her letter of resignation on March 26, 2015—i.e., the Mayor signed the form 12
days after Bianchini allegedly resigned. Bianchini Resignation [83-5]. Likewise, Vance attaches
a draft termination letter setting out the pre-termination hearing process referenced in the Civil
Service Rules, but this letter is incomplete, it was never delivered to or signed by Bianchini, and
it is undisputed that a hearing never took place because she was not terminated. Draft Letter . These submissions raise more questions than they answer.
Vance may ultimately be correct that he is not liable because he is not a decisionmaker,
but this determination is fact-specific and at this time, further clarification of the facts through
discovery is needed. See, e.g., Backe, 691 F.3d at 648. Bianchini’s request for discovery to
show Vance was the final decisionmaker is granted.
In her Rule 7(a) reply, Bianchini identified seven individuals employed with Jackson
Police Department, who she claims were not terminated following arrests for domestic violence:
(1) Christopher Tyrone Sawyer (African-American male); (2) Shalethea Allen (AfricanAmerican female); (3) Terence Dewayne Crump (African-American male); (4) Shante Stanford
(African-American female); (5) Justin Spann (African-American male); (6) Tavoran Robinson
(African-American male); and (7) Aaron Allen (African-American male involved in incident
with Bianchini). Pl.’s Reply  at 2–6. And she claims that Tyree Jones (African-American
male), who engaged in other forms of misconduct, was also treated more favorably. Id. at 7.
Vance responds, characterizing Bianchini’s claims as “patently false.” Def.’s Mem. 
at 3. He relies on various documents, including letters of resignation (S. Allen, Crump), a letter
of suspension (Sawyer), and an incomplete termination letter (Spann).1 See Def.’s Mot. ,
Exhs. H, I, J, L. But Vance does not address Stanford or Robinson. And the termination letter as
to Spann is incomplete—it does not contain a date, it lacks an effective date, and it does not
reflect whether Spann ever received it. Spann Letter [83-10]. In these respects, it resembles
Vance also includes a letter of retirement by Brady Hightower, but it does not appear that
Bianchini identified him as a comparator.
Bianchini’s “draft letter.” Bianchini Draft Letter [83-15] (also lacking date of issuance, effective
date of termination, and evidence it was served or signed by Bianchini). And as to Aaron Allen,
the comparator to whom the Court pointed in its Order denying Vance’s motion to dismiss,
Vance merely directs the Court to a television station’s online news report as evidence Allen
“received other discipline.” Def.’s Mem.  at 3. Hearsay is not competent evidence.
Further factual clarification is warranted. As to scope, Bianchini requests discovery to
“identify all comparators, not the comparators Vance identifies.” Pl.’s Mot.  at 20. While
discovery must be narrowly tailored, the Court finds that Bianchini should be allowed discovery
regarding other Jackson Police Department officers who were similarly situated.
As to Tyree Jones, the Court is somewhat sympathetic to Vance’s position that discovery
is inappropriate. It is true that Bianchini does not allege that Jones was charged with domestic
violence or any other crime. But she claims Vance tolerated Jones’s long history of misconduct
within the department, including an altercation with an officer with whom Jones was
romantically involved, posting racial and religious slurs on social media, and distributing lewd
photos of himself to subordinates. Mot.  at 11–14. And Vance arguably put Bianchini’s prearrest work history at issue by arguing that his reaction was reasonable based on prior
misconduct. See Def.’s Mot.  at 1 (describing Bianchini’s record as less than stellar).
Accordingly, discovery as to Vance’s handling of Jones’s alleged misconduct will be allowed.2
Lastly, Vance says that Bianchini’s history of misconduct, coupled with his consistent
response to domestic violence arrests of similarly situated officers, shows that his actions were
If necessary, the scope of discovery can be challenged through the usual discovery-motion
objectively reasonable. In light of the forthcoming discovery as to the proposed comparators,
this issue will also benefit from factual development.
The Court has considered all arguments raised by the parties; those not addressed would
not have changed the outcome. For the reasons given, Vance’s motion to strike  is granted;
Bianchini’s motion for discovery  is granted; and Vance’s motion for summary judgment
 is terminated without prejudice to his right to refile following discovery. See Fed. R. Civ. P.
The stay of discovery is lifted. The parties are to contact Magistrate Judge F. Keith Ball
within ten (10) days of this Order to schedule a telephonic case management conference to set
the parameters of discovery and any applicable deadlines.
The Clerk is directed to amend the docket text as to Bianchini’s October 30, 2017 filing
 to reflect a title of “Rule 7(a) Reply,” instead of Amended Complaint.
SO ORDERED AND ADJUDGED this the 16th day of April, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
Though not required for disposition of the present motions, the Court was unable to listen to
the audio recordings Bianchini provided. If she wishes to use these recordings in future filings,
she should conventionally file them in a format the Clerk’s office confirms as compatible with
the court’s software.
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