Bracey v. City of Jackson, Mississippi et al
ORDER denying 57 Motion to Dismiss for the reasons set out in the Order. Signed by District Judge Daniel P. Jordan III on August 3, 2017. (SP)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
KIMBERLY V. BRACEY
CIVIL ACTION NO. 3:16-CV-657-DPJ-FKB
CITY OF JACKSON, MISSISSIPPI, et al.
This employment-discrimination case is before the Court on Defendant Tony Yarber’s
Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted and for
Qualified Immunity . For the reasons that follow, the motion is denied.
Facts and Procedural History
On August 25, 2016, Plaintiff Kimberly V. Bracey filed this lawsuit against the City of
Jackson and then Mayor Tony Yarber, individually and in his official capacity, asserting sexdiscrimination, sexual-harassment, hostile-work-environment, and retaliation claims under Title
VII and 42 U.S.C. § 1983. Bracey filed her Amended Complaint four days later on August 29,
2016. In general terms, Bracey claims Yarber mistreated her while she was employed by the
City of Jackson from April 2014 through April 2015 and then terminated her employment for
refusing the mayor’s sexual advances.
On October 24, 2016, Yarber, in his individual capacity, filed his Answer . Yarber has
now moved, in his individual capacity, for dismissal, citing Federal Rule of Civil Procedure
12(b)(6). Bracey responded in opposition; Yarber failed to file a reply, and the time to do so
under Local Rules has now expired. The Court has personal and subject-matter jurisdiction and
is prepared to rule.
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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.’”1 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)). But “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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
Finally, the Court’s review under Rule 12 is not unlimited. Generally speaking, a
“court’s review is limited to the complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010). “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). The decision to exclude such materials falls within the district
Technically, Yarber’s motion is one for judgment on the pleadings under Rule 12(c) as
he answered the Complaint. But the standards for addressing motions under Rule 12(b)(6) and
Rule 12(c) are the same. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 313 n.8 (5th Cir. 2002).
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court’s “complete discretion.” Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 194
n.3 (5th Cir. 1988) (citation omitted).
The Court will exercise that discretion here by ignoring Yarber’s five-page description of
Bracey’s discovery responses. See Def.’s Mem.  at 2–7. Even if the Court were inclined to
consider those statements under Rule 56, Yarber failed to support them with cited record
evidence, so they would be ignored anyway under subsections (c)(1)(A) and (e) of Federal Rule
of Civil Procedure 56. Regardless, the Court declines to accept the apparent invitation to convert
this motion under Rule 12(d), so review will be limited to the Amended Complaint.
Yarber raises several arguments, some of which appear only in his motion. First, he says
he is entitled to qualified immunity on Bracey’s claims against him in his individual capacity.
Second, relying on Bracey’s discovery responses, he challenges her § 1983 claims. Third, he
argues that he cannot be liable on Bracey’s termination claim because he did not terminate her
employment. Fourth, he says that he is immune from suit as to the official-capacity claims.
Fifth, he claims MTCA immunity. Sixth, he contends that he cannot be held liable for violations
of the Electronic Communications Privacy Act and the Storage Communications Act. Seventh,
he references section 15-1-3 of the Mississippi Code, apparently asserting a statute-of-limitations
defense. Finally, he contends that punitive damages cannot be assessed against him as a
government actor. The Court will address each argument in turn.
Yarber says he is entitled to qualified immunity on Bracey’s claims against him in his
individual capacity. As Bracey points out, however, qualified immunity “is an affirmative
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defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815
(1982). And here, Yarber did not affirmatively plead the defense in his answer.
That omission may not be fatal to this defense, because “[a]n affirmative defense is not
waived if the defendant ‘raised the issue at a pragmatically sufficient time, and [the plaintiff] was
not prejudiced in [her] ability to respond.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 856
(5th Cir. 1983). The problem is that Yarber has neither moved to amend his answer nor argued
that this exception to the waiver rule applies to him. As noted, Yarber failed to file a reply in
support of his motion to dismiss and therefore has never addressed Bracey’s waiver argument.
Absent any argument from Yarber, his motion is denied without prejudice as to qualified
immunity. Should he wish to reassert the defense in the future, he should address the failure to
plead it in his answer.
Section 1983 Claims
Yarber’s argument as to the substance of Bracey’s § 1983 claims is essentially that her
discovery responses show “there was no forced sex” and therefore demonstrate that her claims
fail. Def.’s Mem.  at 8. Even if there was no “forced sex,” that does not fully answer
Bracey’s claims. Regardless, and as stated before, Yarber moved under Rule 12, so the Court’s
review is limited to the face of the Amended Complaint. And the factual allegations contained in
the Amended Complaint state § 1983 claims against Yarber for sexual harassment and
retaliation. E.g., Am. Compl.  ¶¶ 11–21. The motion is denied as to the § 1983 claims.2
Because Bracey alleges that Yarber terminated her employment because she refused his
sexual advances, she states a federal claim against Yarber without regard to Mississippi’s
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Yarber contends—with no explanation—that “in his official capacity [he] is immune
from the claims of sexual harassment, retaliation or wrongful termination.” Def.’s Mem.  at
9. But official-capacity claims against a government official are “treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Here, separate counsel represents the
City of Jackson—and therefore Yarber in his official capacity—so Yarber is not the proper party
to assert defenses to the official-capacity claims. Cf. id. at 166–67 (explaining that defenses
available to defendant in his individual capacity would be “unavailable” in “an official-capacity
action”); see also Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th
Cir. 2000) (“[A] § 1983 suit naming defendants in their ‘official capacity’ does not involve
personal liability to the individual defendant.”). Bracey argued this point in her memorandum,
Pl.’s Mem.  at 6, yet Yarber declined to reply. The Court finds that this portion of the
motion should be denied without prejudice to being reasserted by the proper party.3
Bracey notes that, as with the qualified-immunity defense, Yarber failed to raise MTCA
immunity in his answer. More fundamentally, Bracey has not asserted any state-law tort claims,
and the MTCA does not “insulate” public employees from liability on federal claims. See Black
v. N. Panola Sch. Dist., 461 F.3d 584, 595 (5th Cir. 2006) (holding that MTCA does not cover
claims under § 1983). Yarber’s motion is denied as to his assertion of MTCA immunity.
In any event, Yarber never identifies the source of the immunity he says applies to
claims against him in his official capacity. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436
U.S. 658, 690 n.54 (“There is certainly no constitutional impediment to municipal liability.”).
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Electronic Communications Privacy Act and Storage Communications Act Claim
Yarber takes issue with Bracey’s claim brought under the Electronic Communications
Privacy Act and the Storage Communications Act. But as Bracey points out, she asserted this
claim solely against the City of Jackson. Pl.’s Mem.  at 5; see Am. Compl.  ¶ 34.
Because the claim is not asserted against Yarber, this portion of his motion to dismiss is denied.
Statute of Limitations
Yarber asserts—again with no explanation—that Bracey’s claims “are barred as a matter
of law” by section 15-1-3 of the Mississippi Code. See Def.’s Mot.  ¶ 4. That section
generally states that completion of the applicable limitations period will extinguish “the right as
well as the remedy.” Miss. Code Ann. § 15-1-3. Here, the applicable limitations period for
Bracey’s § 1983 claims is the three-year period allowed under section 15-1-49. James ex rel.
James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990). That means that any claims accruing after
August 25, 2013 (three years before Bracey filed) are timely. And because Bracey’s claims all
relate to employment that started in April 2014, it appears that her claims are timely. This
portion of the motion is denied.
Yarber finally says that the claim for punitive damages against him should be dismissed
because “punitive damages may not be assessed against governmental entities.” Def.’s Mot. 
¶ 5. That statement is true, but it does not help Yarber because punitive damages “are available
in a suit against an official personally.” Graham, 473 U.S. at 167 n.13 (citations omitted).
Yarber’s motion is denied as to the claim for punitive damages.
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The Court has considered all arguments. Those not specifically addressed would not
have changed the outcome. For the foregoing reasons, Defendant Tony Yarber’s Motion to
Dismiss for Failure to State a Claim upon which Relief can be Granted and for Qualified
Immunity  is denied.
SO ORDERED AND ADJUDGED this the 3rd day of August, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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