Davis v. Hinds County, Mississippi et al
ORDER denying 4 Motion to Strike; granting in part 7 Motion for Judgment on the Pleadings; granting 9 Motion for Judgment on the Pleadings as set out in the Order. Given this ruling, the stay currently in place is hereby lifted. Within ten days of the date of this Order, the parties should contact Magistrate Judge F. Keith Balls chambers to determine a case-management-conference date. Signed by District Judge Daniel P. Jordan III on May 23, 2017. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CHAKAKHAN R. DAVIS
CIVIL ACTION NO. 3:16cv674-DPJ-FKB
HINDS COUNTY, MISSISSIPPI,
SGT. BOBBY MELSON, DEPUTY
CHRIS MADDOX, OFFICER BRENDA
JONES, AND TYRONE LEWIS
This pro se civil-rights action is before the Court on Plaintiff’s Motion to Strike Answer
; Defendants’ Motion for Judgment on the Pleadings on State Law Claims ; and
Defendants’ Motion for Judgment on the Pleadings as to Federal Claims . For the reasons that
follow, the motion to strike is denied, the motion on the state-law claims is granted in part, and
the motion on the federal-law claims is granted.
Facts and Procedural History
This case arises out of the arrest and subsequent detention of Plaintiff Chakakhan R.
Davis. The Court gathered the following allegations from her Complaint [1-2] and takes them as
true under Federal Rule of Civil Procedure 12(c).
On May 26, 2015, Sergeant Bobby Melson responded to an emergency call from Davis’s
mother, who was under her daughter’s care. Upon arrival, Melson informed Davis that
additional deputies were on their way and that she would be brought to jail if she had nowhere to
go. Once Deputy Chris Maddox and another unknown deputy joined Melson, the officers
arrested Davis for resisting arrest and disturbance of family. During this time, Davis says the
deputies “physically attacked her on top of huge metal and sharp ten [sic] pieces to the ground.”
Compl. [1-2] at 6. The unknown deputy then intentionally handcuffed her too tightly, and
Maddox ignored her complaint about her handcuffed wrists.
Upon her arrival at the county jail, Davis was searched by an unknown female guard
while a male staff member was present. She was then taken to the fingerprinting room, where an
unknown female guard attempted to force Davis to walk despite knowing that her legs were hurt
too badly to do so. The women were then joined by Defendant Brenda Jones, who dragged
Davis “vigorously” by the arm to her cell, “piercing” her nails into Davis’s arm. Id. at 17. When
Davis was later brought back to the fingerprinting room, an unknown female guard intentionally
“jerked and snatched” Davis’s fingers and sprayed pepper spray. Id. Davis was eventually
released on May 29, 2015, and her charges were later dismissed.
On August 2, 2016, Davis filed a state-court suit against Hinds County, Mississippi,
Melson, Maddox, Jones, and Tyrone Lewis. Hinds County then removed the action to this
Court. Notice of Removal . Davis’s Complaint [1-2] alleges federal-law claims for excessive
force, illegal search and seizure, cruel and unusual punishment, denial of due process, and
reckless training and supervision. She also brings state-law claims for excessive force, false
arrest, false imprisonment, abuse of process, malicious prosecution, and cruel and unusual
punishment. She seeks $1.9 million in compensatory damages, as well as punitive damages.
After Defendants filed their Answer , Davis moved to strike it . Defendants
responded, but Davis failed to reply. Thereafter, Hinds County, Jones, and Lewis docketed a
Motion to Dismiss  Davis’s state-law claims under Federal Rule of Civil Procedure 12(c). A
few minutes later, Defendant Jones and Lewis docketed a separate Motion to dismiss , seeking
dismissal of the federal claims asserted against them in their individual capacities for failure to
perfect service of process under Rule 12(b)(5) and judgment on the pleadings under Rule 12(c).
After the parties briefed these initial motions, the Court docketed an Order  seeking
additional briefing on whether Defendants waived their Rule 12(b)(5) defense under Rule 12,
subsections (g) and (h). The Court also asked whether it had jurisdiction to consider the merits
of the Rule 12(c) motions as to Lewis and Jones, assuming they did not waive, and were entitled
to, relief under Rule 12(b)(5). Both parties submitted their responses, and the Court is now
prepared to rule.1
Motion to Strike
Davis moves to strike Defendants’ answer as “clearly frivolous” under Federal Rule of
Civil Procedure 12(f). But “[t]he action of striking a pleading should be sparingly used by the
courts [and] should be granted only when the pleading to be stricken has no possible relation to
the controversy.” Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 306 F.2d 862, 868
(5th Cir. 1962) (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822
(6th Cir. 1953)). Further, a motion to strike “generally should not be granted absent a showing
of prejudice to the moving party.” Conn v. United States, No. 3:10cv300-CWR, 2011 WL
2117969, at *5 (S.D. Miss. May 27, 2011); accord Bailey Lumber & Supply Co. v. Ga.-Pac.
Corp., No. 1:08cv1394-LG-JMR, 2010 WL 1141133, at *5 (S.D. Miss. Mar. 19, 2010)
(“Portions of a complaint generally will not be stricken unless ‘the allegations are prejudicial to
the defendant or immaterial to the lawsuit.’”) (quoting Veazie v. S. Greyhound Lines, 374 F.
Supp. 811, 815 (E.D. La. 1974)).
As the case moves forward, the Court reminds Davis of the page limits imposed by Local Rule
7(b)(5). See Luken v. Collins, No. 92-4922, 1993 WL 347058, at *1 (S.D. Miss. Aug. 17, 1993)
(“Pro se litigants must adhere to the Local Rules of Court.”).
Davis failed to reply to Defendants’ arguments against her motion. And having reviewed
the challenged pleading, the Court finds that Defendants’ answer as a whole should not be
stricken. It is neither immaterial nor prejudicial to Davis. No aspect of Defendants’ answer
justifies relief under Rule 12(f).
In the alternative, Davis seeks to strike the affirmative defenses listed in Defendants’
answer because “they can under no set of facts or circumstances succeed.” Pl.’s Mem.  at 5.
Federal Rule of Civil Procedure 12(f) permits the Court to strike a defense if “the defense
asserted is insufficient as a matter of law.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). But “[m]otions to strike defenses are
generally disfavored and rarely granted.” Bertoniere v. First Mark Homes, Inc., No. 2:09cv156DCB-MTP, 2010 WL 729931, at *1 (S.D. Miss. Feb. 25, 2010) (citing United States v.
Benavides, No. B-07-108, 2008 WL 362682, at *2 (S.D. Tex. Feb. 8, 2008)). “Even when
addressing a pure question of legal sufficiency courts are ‘very reluctant’ to determine such
issues on a motion to strike, preferring to determine them ‘only after further development by way
of discovery and a hearing on the merits, either on summary judgment motion or at trial.’”
Veranda Assocs., L.P. v. Hooper, No. H-11-4206, 2012 WL 602143, at *3 (S.D. Tex. Feb. 23,
2012) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1381
(3d ed. 2004)).
In their answer, Defendants offer eleven defenses. And the Court has no reservations
denying the motion as to each of them. As discussed later, some of the defenses have prevailed
in Defendants’ motions to dismiss. As to the others, they are proper at this stage, not because
they will ultimately prove true but because it is too early to tell. Davis fails to show that any of
the defenses are insufficient as a matter of law, choosing instead to focus her actual argument on
the specificity with which Defendants pleaded them. But Defendants have simply preserved
these defenses in an answer. Davis’s motion to strike is denied.
Motion for Judgment on the Pleadings: Federal-Law Claims Against Lewis and
Davis asserts five federal claims in this case—excessive force, illegal search and seizure,
cruel and unusual punishment, deprivation of due process, and reckless training/supervision.
Compl. [1-2] at 7–8. Frankly, the Court struggled to determine which claims are asserted against
which Defendants. The Court will address this issue as it arises, but generally, Defendants
Tyrone Lewis and Brenda Jones now move for dismissal of all federal claims asserted against
them in their individual capacities. They base this request on two grounds—ineffective service
of process and failure to state a claim.
These arguments present a slightly odd procedural posture. So for clarity, the Court
summarizes this portion of the Order as follows. Defendants Lewis and Jones contend that Davis
failed to perfect service of process and therefore seek dismissal under Rule 12(b)(5). The Court
finds that Defendants did not waive that defense and further agrees that Davis has not established
proper service. This threshold finding precludes a separate ruling on the merits under Rule 12(c)
as to the individual-capacity claims against Lewis and Jones. So the question becomes whether
to quash service with leave to cure or to dismiss those Defendants either with or without
prejudice. On this issue, the Court finds that many of Davis’s claims against these Defendants
are futile and that dismissal without prejudice is warranted as to those claims. Davis will,
however, be given an opportunity to seek amendment as to some of her claims, and if she makes
a valid argument for amendment, then she will be given an opportunity to attempt proper service
on Defendants Lewis and Jones as to those claims.
Service of Process
Whether Lewis and Jones Waived Service of Process
Lewis and Jones initially filed a Rule 12(c) motion seeking dismissal of the state-law
claims on September 22, 2016, at 3:19 p.m. Two minutes later, at 3:21 p.m., Lewis and Jones
filed a separate motion seeking dismissal under Rule 12(b)(5) of all claims asserted against them
in their individual capacities, and alternatively, dismissal under Rule 12(c) of all federal claims.
The timing of the motions led the Court to question whether Defendants joined their motion
asserting a Rule 12(b)(5) defense with their earlier-filed Rule 12(c) motion as subsections (g) and
(h) require. If they did not, the Court must then ask whether they waived the Rule 12(b)(5)
defense. Out of caution, the Court sought additional briefing on waiver while informing the
parties that “any extraneous issues w[ould] be ignored.” Order  at 2.
Despite these directives, Davis addressed neither subsection (g) nor (h) of Rule 12 and
instead raised a number of arguments that exceeded the scope of the Court’s Order. Those new
matters will not be considered.2 And having now reviewed her original and supplemental
briefing, it is apparent that Davis has not relied upon subsection (g) or (h). Accordingly, the
Court will not further consider the issue.3
Regardless, Davis’s general-appearance argument conflicts with Federal Rule of Civil
Procedure 12(b). See Regions Bank v. Britt, 642 F. Supp. 2d 584, 587 (S.D. Miss. 2009).
In addition to the fact that Davis never pursued this argument, the issue itself raises some tricky
procedural questions the Court would rather not address on these briefs. For example, there is a
question whether Rule 12(h) should apply to a post-answer motion. See Fed. R. Civ. P. 12(h)
advisory committee’s notes to 1946 and 1966 amendments. Moreover, the two Rule 12 motions
were filed just two minutes apart, and the Court questions whether such contemporaneous filings
would invoke Rule 12(h)(1). Certainly, the policy behind subsections (g) and (h) was fully
realized. Regardless, a finding for Davis on this narrow issue would just allow the Court to
consider dismissal with prejudice under Rule 12(c).
Whether Davis Served Lewis and Jones
Lewis and Jones say that Davis failed to properly serve them under Federal Rule of Civil
Procedure 4, requiring dismissal under Rule 12(b)(5). According to the state-court record, Claire
Barker, in-house counsel for the Hinds County Sheriff’s Office, was served on August 3, 2016.
State Ct. R. [1-2] at 61 (Barker Service). But Lewis and Jones contend that Barker was not
authorized to accept process on their behalf. Defs.’ Mem.  at 5. And the Proof of Service
only summarizes that Lewis and Jones were served “via their designated representative at the
assigned location.” Id. at 58 (Proof of Service). This alone is not enough to determine
sufficiency of process.
In her response, Davis explains that Lewis and Jones were served with process “through
in house counsel” in another action with a “virtually identical complaint.” But defects in service
of process are waivable. Fed. R. Civ. P. 12(h)(1). So service in another case is immaterial.
Moreover, serving an attorney is proper only when the attorney has actual authority to accept it.
Maiz v. Virani, 311 F.3d 334, 340 (5th Cir. 2002). Davis fails to carry her burden on this point.
See Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th
Cir. 1981) (“When service of process is challenged, the party on whose behalf it is made must
bear the burden of establishing its validity.”). Davis failed to perfect service on Lewis and
Opportunity to Cure
The next question is whether Davis should be given an opportunity to cure, something
she seeks in her responses. “The general rule is that when a court finds that service is
insufficient but curable, it generally should quash the service and give the plaintiff an
opportunity to re-serve the defendant.” Gregory v. U.S./U.S. Bankr. Court for Dist. of Colorado,
942 F.2d 1498, 1500–01 (10th Cir. 1991) (citation and quotation marks omitted). But when
service would be futile, dismissal is appropriate. Id. Here, Defendants assert futility on two
grounds. First, they say the time for service under Federal Rule of Civil Procedure 4(m) has
passed. Def.’s Resp.  at 5. Second, they say the claims themselves are meritless and subject
to dismissal under Rule 12(c).
These alternative arguments raise a question whether dismissal—if otherwise
warranted—should be with or without prejudice. To the extent Defendants rely on Rule 4(m),
dismissal would generally be without prejudice. Rule 4(m) states in relevant part that, “[i]f a
defendant is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m) (emphasis
added); see also Coleman v. Gillespie, 424 F. App’x 267, 270 (5th Cir. 2011) (modifying
dismissal based on Rules 4(m) and 41(b) to be without prejudice).
Less clear is whether a court can dismiss a case with prejudice under Rule 12(b)(5) for
want of service, when the complaint otherwise fails to state a claim. This Court previously
expressed concern that it would lack jurisdiction to address the merits under Rule 12(c) if
services was never perfected. See Order  (citing Attwell v. LaSalle Nat. Bank, 607 F.2d
1157, 1159 (5th Cir. 1979) (“It is axiomatic that in order for there to be in personam jurisdiction
there must be valid service of process.”)). And in Coleman v. Gillespie, the Fifth Circuit stated,
“Because these defendants were never before the court, the dismissal should be without
prejudice.” 424 F. App’x at 270. But see Gregory, 942 F.2d at 1500–01 (affirming dismissal
with prejudice under Rule 12(b)(5) where complaint was futile under Rule 12(b)(6)). The
Coleman decision was ultimately based on Rules 4(m) and 41(b), but it still gives the Court
pause. And while Defendants’ response to the Court’s Order  seeks dismissal based on
futility, Defendants did not explore whether dismissal should be with prejudice. On this record,
the Court concludes that dismissal without prejudice is the safer approach if the Complaint fails
to state a claim. Accordingly, the Court will examine whether the federal claims against Lewis
and Jones are futile under Federal Rule of Civil Procedure 12(c) based on qualified immunity.4
Failure to State a Claim—Qualified Immunity
Under Rule 12(c), the Court applies “the same standard as a motion to dismiss under Rule
12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). Accordingly, 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)). 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 motion to dismiss, 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 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.”
Later in this Order, the Court will consider whether the state-law claims against Lewis and
Jones are likewise futile under a Rule 12(c) analysis.
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). It follows that “where the wellpleaded 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
In this case, Davis is proceeding pro se. “It is well-established that ‘pro se complaints are
held to less stringent standards than formal pleadings drafted by lawyers.’” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing Miller v. Stanmore, 636 F.2d 986, 988
(5th Cir. 1981)). “However, regardless of whether the plaintiff is proceeding pro se or is
represented by counsel, ‘conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice . . . .’” Id. (citing S. Christian Leadership Conference v. Supreme
Court of the State of La., 252 F.3d 781, 786 (5th Cir. 2001)).5
Turning to the merits, Lewis and Davis base their motion on qualified immunity. As the
Fifth Circuit neatly summarized:
[T]he doctrine of qualified immunity protects government officials from civil
damages liability when their actions could reasonably have been believed to be
legal. This immunity protects all but the plainly incompetent or those who
knowingly violate the law. Accordingly, we do not deny immunity unless
existing precedent must have placed the statutory or constitutional question
beyond debate. The basic steps of this court’s 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.
Davis actually has more experience than the average pro se litigant as this appears to be her
ninth suit in this Court alone. Perhaps as a result, her briefs are somewhat better than the Court
would normally expect, and she appears to have been able to express her arguments.
Anderson v. Valdez, No. 15-40836, 2016 WL 7667301, at *11 (5th Cir. Nov. 9, 2016) (citation
and quotation marks omitted, punctuation altered); see also Surratt v. McClarin, No. 16-40486,
2017 WL 992507, at *2 (5th Cir. Mar. 14, 2017).
“[T]o hold that the defendant violated the law at step one of the qualified-immunity
analysis . . . is simply to say that the plaintiff has stated a claim upon which relief may be
granted.” Morgan v. Swanson, 659 F.3d 359, 384 (5th Cir. 2011). To meet that burden, a
plaintiff “must plead specific facts that both allow the court to draw the reasonable inference that
the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense
with equal specificity.” Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015) (internal
quotation marks and citation omitted). Significantly, “the burden is on the plaintiff to
‘demonstrate the inapplicability of the defense.’” Coleman v. Marion Cty., No. 2:14cv185-DPJFKB, 2015 WL 5098524, at *6 (S.D. Miss. Aug. 31, 2015) (quoting McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002)).
Looking to the Complaint, Lewis’s name is mentioned only once—in section II, where
Davis identifies the parties. She generally describes,
Lewis at the time of the events complained of w[as] the official policy maker for
the Hinds County Sheriff’s Department and . . . share[s] a liability in this cause of
action since by Statute he w[as] responsible for the day to day operations and
management of the county . . . jail and penal farm during the time of this incidents
occurrence . . . .
Compl. [1-2] at 1 (emphasis in original). Davis does not suggest that Lewis was personally
involved in her arrest and subsequent detention, and never alleges that he engaged in any
personal wrongdoing. Davis’s response fails to provide any clarity as to Lewis, and the single,
vague assertion in her Complaint would not survive a Rule 12(c) motion based on qualified
Having considered the Complaint and Davis’s subsequent memoranda, the Court
concludes that she has pleaded her best case against Lewis related to any direct involvement with
the arrest or detention. Because service on Lewis as to the excessive-force, illegal-search-andseizure, cruel-and-unusual-punishment, and due-process claims would be futile, those claims are
dismissed without prejudice under Rule 12(b)(5).
Davis does, however, reference a new reckless hiring/supervision claim against Lewis in
her response. And while that claim was not part of the current Complaint as to Lewis, it is at
least conceivable that Davis could effectively amend the Complaint if given the opportunity. See
Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000). As discussed later, Davis will be
given that opportunity, and if her motion to amend as to Lewis is granted, she will then be given
an opportunity to properly perfect service and move forward with the reckless hiring/supervision
claim as to him.
Turning then to Jones, the Complaint contains a single factual allegation involving her:
On May 26, 2015, in the Raymond Detention Center fingerprinting room, Jones “caught [Davis]
by the arms and dragged her vigorously to the cell in which she was removed from while
piercing her nails.” Compl. [1-2] at 7. Davis fails to make clear what claim this contention
supports, and Jones says that Davis attempts to allege only an excessive-force claim against her.
Davis makes no colorable argument to the contrary. Based on the allegations, the Court agrees
that the claim against Jones is for excessive force under the due-process clause of the Fourteenth
Amendment. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (observing that “the
Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to
punishment”) (citation omitted). All other federal claims against Jones fail to plead a plausible
claim and are dismissed without prejudice under Rule 12(b)(5).6
As to excessive force, the Court must first determine whether Davis has stated a plausible
claim upon which relief may be granted. To avoid qualified immunity, she must allege: “(1) an
injury that (2) resulted directly and only from the use of force that was excessive to the need, and
(3) the use of force that was objectively unreasonable.” Bush v. Strain, 513 F.3d 492, 500–01
(5th Cir. 2008); see also Kingsley, 135 S. Ct. at 2470 (concluding that pretrial detainee must
show use of force was “objectively unreasonable”).
Considerations such as the following may bear on the reasonableness or
unreasonableness of the force used: the relationship between the need for the use
of force and the amount of force used; the extent of the plaintiff's injury; any
effort made by the officer to temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.
Kingsley, 135 S. Ct. at 2473.
Jones interprets Davis’s Complaint as alleging that the only injury Jones caused was a
broken fingernail. Defs.’ Mem.  at 11. Accordingly, Jones contends that Davis fails to
satisfy the first element of an excessive-force claim—that Davis “suffered an injury as a result of
Jones’ conduct.” Id. at 10. This construction of the Complaint is understandable given Davis’s
vague description, but in her response, Davis clarifies the claim explaining that Jones “pierced
her nails in [Davis’s] arms.” Pl.’s Mem.  at 15.
Specifically, the cruel-and-unusual-punishment claim would fail as a matter of law because the
Eighth Amendment only prohibits the infliction of cruel and unusual punishments on convicted
criminals. Legate v. Livingston, 822 F.3d 207, 210 (5th Cir. 2016). Davis, a detainee, was not
convicted prior to the incident alleged.
Even with this clarification, Jones argues that because Davis offers nothing more than a
de minimis injury, Jones’s force was de minimis.7 Defs.’ Mem.  at 11. The Fifth Circuit
recently summarized the appropriate test for a constitutionally sufficient injury in Alexander v.
City of Round Rock, observing as follows:
“[A]lthough a de minimis injury is not cognizable, the extent of injury necessary
to satisfy the injury requirement is ‘directly related to the amount of force that is
constitutionally permissible under the circumstances.’” Brown v. Lynch, 524 F.
App’x. 69, 79 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430, 434–35 (5th
Cir. 1996)). “Any force found to be objectively unreasonable necessarily exceeds
the de minimis threshold, and, conversely, objectively reasonable force will result
in de minimis injuries only.” Id. (emphasis added) (footnote omitted).
Consequently, “only one inquiry is required to determine whether an officer used
excessive force in violation of the Fourth Amendment.” Ikerd, 101 F.3d at 434
n.9. In short, “as long as a plaintiff has suffered ‘some injury,’ even relatively
insignificant injuries and purely psychological injuries will prove cognizable
when resulting from an officer’s unreasonably excessive force.” Brown, 524 F.
App’x. at 79 (footnotes omitted) (quoting Ikerd, 101 F.3d at 434).
No. 16-50839, 2017 WL 1393702, at *7 (5th Cir. Apr. 18, 2017).
Based on this standard, the Court agrees with Jones that Davis has not sufficiently
pleaded a constitutional violation. Davis’s sole contention in her Complaint is that Jones
“dragged” her to a cell, digging her nails into her arm. She alleges no actual injury as a result,
and there is nothing suggesting that the force was unreasonably excessive.
But even assuming Jones violated a constitutional right, that right was not clearly
established at the time of the detention. In fact, other courts have rejected similar claims. See
Marshall v. Milyard, 415 F. App’x 850, 852 (10th Cir. 2011) (affirming dismissal of excessiveforce claim where defendant grabbed prisoner’s arm, digging fingernails into it); see also Wilson
v. Buster, 433 F. App’x 238, 239–40 (5th Cir. 2011) (per curiam) (affirming dismissal where
In the Eighth Amendment context, the United States Supreme Court has held that de minimis
force and de minimis injury are “only imperfectly correlated.” Wilkins v. Gaddy, 559 U.S. 34,
officer “pulled [prisoner’s] arm, which was in a sling from a shoulder injury, through his cell
bars”). Jones is entitled to qualified immunity on the excessive-force claim. See Ontiveros v.
City of Rosenberg, Tex., 564 F.3d 379, 383 n.1 (5th Cir. 2009) (“Excessive force incidents are
highly fact-specific and without cases squarely on point, officers receive the protection of
Accordingly, Jones would be entitled to qualified immunity as to the sole federal claim
brought against her. Moreover, the Complaint and Davis’s other submissions indicate that she
has pleaded her best federal case against this Defendant on this claim. The federal claims against
Jones are dismissed without prejudice under Rule 12(b)(5).8 But as discussed later, Davis will be
given an opportunity to move to amend her Complaint as to her newly asserted claim against
Motion for Judgment on the Pleadings: State-Law Claims
Hinds County seeks dismissal of all state-law claims asserted against it under Rule 12(c)
based on the Mississippi Tort Claims Act (MTCA). Defendants Lewis and Jones also attack the
state-law claims under the MTCA, but the question for them is whether proper service would be
All tort claims against Hinds County or its employees must be brought pursuant to the
MTCA. Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 444 (5th Cir. 2015). Generally,
Hinds County is immune from suit. Miss. Code Ann. § 11-46-3. But that immunity is waived
In her response, Davis asserts for the first time that it was Jones, not an unknown female guard,
who attempted to force her to walk on her legs, even though she could not. Pl.’s Resp.  at
41. But this allegation was not pleaded in the Complaint and contradicts Davis’s other Response
 in which she again says she did not know the guard who forced her to walk. See Pl.’s Resp.
 at 15. In contrast, Davis claims a prior history with Jones. The Court will not address this
new and unsupported allegation.
for the torts of Hinds County and its employees acting within the course and scope of their
employment. Id. § 11-46-5(1). Importantly here, that waiver is subject to many exceptions.
And generally, “no employee shall be held personally liable for acts or omissions occurring
within the course and scope of [their] duties.” Id. § 11-46-7.
Here again, the Complaint is unclear as to what state-law claims Davis asserts against
which Defendants. Defendants’ briefing assumes that all state-law claims are asserted equally as
to them, so the Court does the same. But the Court cannot agree with Defendants’ argument that
all of Davis’s claims—other than false arrest—“accrued once she was an ‘inmate.’” Defs.’
Reply  at 4. In her Complaint, Davis says that the arresting officers used excessive force
against her. See Compl. [1-2] ¶¶ 4, 8. And she made that same point in her Response ,
asking the Court to “note that the incident involving the Defendants Sergeant and Deputy
Sheriff(s) use of intentional excessive force [regarding the handcuffs and alleged attack at the
house] . . . occurred and/or took place prior to the excessive force incident by the Jail Guards.”
Pl.’s Resp.  at 15. Accordingly, the various claims must be considered as they relate to these
two events. For clarity, this Order will address those events separately, after considering the
more global argument that neither Lewis nor Jones may be held individually liable under the
Lewis’s and Jones’s Personal Liability
Davis fails to establish a basis for individual liability as to Lewis or Jones. To begin
with, the Complaint never alleges any specific facts regarding Lewis, so the individual-capacity
claims against him would be futile. And as to both Lewis and Jones, government employees are
immune from liability for acts taken in the course and scope of employment. Miss. Code Ann.
§ 11-46-7. Here, Davis concedes that all Hinds County employees—including Lewis and
Jones—were acting within the course and scope of their employment during the events at issue.
Pl.’s Resp.  at 21 (“[A]t all times relevant to t[hese] incidents . . . Tyrone Lewis, Deputy
Sheriff(s) and Jail Guard(s) were performing their dut[ies] in uniform and existed as employees
of the Hinds County Sheriff’s Department on May 26, 2015.”); see also id. at 2, 4, 11, 20. Thus,
Lewis and Jones may not be held personally liable for any of Davis’s state-law claims. Miss.
Code Ann. § 11-46-7. Allowing an opportunity to cure service of process would therefore be
futile, and the individual-capacity state-law claims are dismissed without prejudice.
Claims Related to Raymond Detention Center
In addition to the bar against individual liability under section 11-46-7, the moving
Defendants all argue that any state-law claims related to the Raymond Detention Center are
barred by the MTCA’s “Inmate Exception.” Under this exception, “[a] governmental entity and
its employees acting within the course and scope of their employment . . . shall not be liable for
any claim . . . [o]f any claimant who at the time the claim arises is an inmate of any detention
center, jail, workhouse, penal farm, penitentiary or other such institution.” Id. § 11-46-9(1)(m).
Davis tries to avoid this exception by saying that (1) she was a pre-trial detainee, not an
“inmate”; and (2) she was falsely arrested. Pl.’s Resp.  at 16–17. But neither argument
carries weight. As Defendants rightly argue, the Inmate Exception applies to pre-trial detainees.
See Love v. Sunflower Cty. Sheriff’s Dep’t, 860 So. 2d 797, 801 (Miss. 2003); Liggans v.
Coahoma Co. Sheriff’s Dept., 823 So. 2d 1152, 1155 (Miss. 2002). It likewise applies to
unlawful arrests. See Tillman v. Miss. Dep’t of Corr., 95 So. 3d 716, 718–19 (Miss. Ct. App.
2012). Accordingly, the state-law claims related to the events at the detention center are due to
be dismissed—with prejudice—as to Hinds County.9
The individual-capacity claims against Lewis and Jones would fail for this additional reason.
Claims Related to Arrest
While the state-law claims related to the events at the detention center are barred as to all
moving Defendants, Davis also asserts state-law claims unrelated to the detention, including
excessive force, false arrest, false imprisonment, abuse of process, and malicious prosecution.
See Compl. [1-2] ¶ 8; Pl.’s Resp.  at 8. Again, Lewis and Jones cannot be individually
liable, and in any event, there are no allegations in the Complaint linking either Lewis or Jones to
any events outside the detention center. Any individual-capacity claims against Lewis or Jones
related to the arrest are dismissed without prejudice under Rule 12(b)(5).
As for Hinds County, the MTCA would allow liability if the arresting officers committed
torts while acting within the course and scope of their employment. See Miss. Code Ann. § 1146-5(1) (waiving immunity for political subdivisions related to torts by employees acting within
course and scope of employment). Recognizing this statutory waiver, Hinds County contends
that (1) the false-arrest claim is barred by the MTCA’s Police-Function Exception, and (2) the
abuse-of-process and malicious-prosecution claims are not subject to the MTCA’s immunity
Starting with the Police-Function Exception, a governmental entity like Hinds County is
immune from any claim arising from its “engage[ment] in the performance or execution of duties
or activities relating to police or fire protection unless the employee acted in reckless disregard
of the safety and well-being of any person not engaged in criminal activity at the time of injury.”
Id. § 11-46-9(1)(c). So Hinds County is immune from liability unless (1) Davis was not engaged
in criminal activity during the incident in question, and (2) a Hinds County employee acted “in
reckless disregard.” Id.
Defendants assume for the purposes of their argument that Davis was not engaged in
criminal activity and instead focus on the lack of “reckless disregard” regarding the arrest.
Davis’s response is not entirely clear, but she states that she was not engaged in criminal acts
when she was arrested. See Pl.’s Resp.  at 11. She also says that based on the totality of the
circumstances, the officers acted with reckless disregard by arresting her without cause. Id. at
At this point, the Court would agree with Hinds County that Davis has not pleaded
sufficient facts to suggest a plausible claim that the officers acted with reckless disregard when
they arrested her—Davis’s conclusory allegations notwithstanding. Indeed it is not even clear
who actually arrested Davis, at what point he or she did so, and on what basis. And according to
the Complaint, there does appear to have been some confrontation with the officers who,
according to Davis, were called by her own mother and upon arrival told Davis that “if [she]
ha[d] nowhere to go th[e]n she was going to jail.” Compl. [1-2] at 6. The simple fact that
charges were later dropped does not indicate reckless disregard on the part of Defendants. See
Cunningham ex rel. Cunningham v. City of W. Point Miss., 380 F. App’x 419, 423 (5th Cir.
2010). In sum, Davis pleads an insufficient factual basis to find a plausible claim of reckless
disregard in causing her arrest. The false-arrest claim is dismissed as to Hinds County without
prejudice to potential amendment.10
Defendants’ opening brief limits the Police-Function Exception to the false-arrest claim. See
Defs.’ Mem.  at 8. And as noted earlier, Defendants say in their Reply that false arrest is the
only MTCA claim related to the events at Davis’s mother’s house. Defs.’ Reply  at 4. But
later in their Reply, Defendants make passing reference to excessive force, arguing that it too
falls under the Police-Function Exception. Id. at 6. The Court concludes that this argument was
neither raised in the first brief nor sufficiently argued in Reply. Similarly, Defendants do not
seem to address false imprisonment related to the arrest—assuming Davis intended such a claim.
Regardless, Davis offers factual allegations to support the otherwise conclusory averment that
the officers acted with “reckless disregard.” Particularly, she claims that she was “physically
Finally, Hinds County argues that it is immune from claims of malicious prosecution and
abuse of process. Section 11-46-5(2) of the Mississippi Code states,
[A]n 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.
In Mississippi, an abuse-of-process claim requires proof of an “illegal use of a legal process.”
Ayles ex rel. Allen v. Allen, 907 So. 2d 300, 303 (Miss. 2005). Malicious-prosecution claims
include as an element “malice in instituting the proceedings.” McClinton v. Delta Pride Catfish,
Inc., 792 So. 2d 968, 973 (Miss. 2001). Because these claims have elements touching on malice
or illegality, Hinds County argues—without supporting authority—that both claims are excluded
from the MTCA’s immunity waiver. Defs.’ Mem.  at 9.
This argument runs into a few bumps as to abuse of process. First, it is not apparent that
the statute’s “criminal offense” language is synonymous with “illegal use of process.” Illegal
use of process may not necessarily be criminal. And for her part, Davis says the claim is not
based on illegal conduct. See Pl.’s Resp.  at 12. In the end, this particular claim is in a
posture similar to the one Judge Keith Starrett faced in Pardue v. Jackson County, Mississippi,
where he held, “The parties have insufficiently briefed this issue, and Plaintiff has not clearly
stated what actions constitute the abuse of process. Therefore, the Court does not presently have
sufficient basis for a ruling on the application of MTCA immunity to Plaintiff’s abuse of process
claim.” No. 1:14-CV-290-KS-MTP, 2016 WL 3024153, at *8 (S.D. Miss. May 25, 2016). The
attacked” over sharp metal objects, could not walk thereafter, and sought medical attention. See
Compl. [1-2] at 3, 4, 7, 8. At the Rule 12(c) stage, the “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 at 587 (citing Twombly, 550 U.S. at 556).
Davis minimally meets this standard as to the excessive-force claim related to the arrest.
Court will take the same approach here and deny the motion regarding abuse of process without
prejudice to Defendants’ right to revisit it.
The malicious-prosecution claim is different. Numerous courts have held that malicious
prosecution necessarily requires conduct that constitutes malice and therefore falls outside the
course and scope of employment. See, e.g., Hagan v. Jackson, Miss., No. 1:13cv268-HSORHW, 2014 WL 4914801, at *12 (S.D. Miss. Sept. 30, 2014) (citing Weible v. Univ. of S. Miss.,
89 So. 3d 51, 64 (Miss. Ct. App. 2011) (“[T]orts which require proof of malice as an essential
element are excluded from the MTCA” under section 11-46-5(2)). This Court agrees, and the
malicious-prosecution claim against Hinds County is dismissed with prejudice.
New Claims in Response
In their reply, Defendants identify two claims that Davis raises for the first time in her
response: (1) First Amendment claim against Lewis, Jones, and Hinds County and (2) a failureto-train/supervise claim against Lewis in his individual capacity. To be sure, these claims are
nowhere to be found in the Complaint. But the Court should not ignore them. See Cash v.
Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th Cir. 1992) (holding that new allegation asserted in
response to dismissal motion should have been treated as a motion to amend); King v. Life Sch.,
809 F. Supp. 2d 572, 581 (N.D. Tex. 2011) (“When a pro se plaintiff raises a new claim for the
first time in response to a motion to dismiss, the district court should construe the new claim as a
motion to amend the complaint . . . .”).
Even construed as a motion to amend, Davis’s response does not provide adequate factual
support for her new claims and asserts them only in a vague, conclusory manner. Nor does her
response comply with Local Rule 7(b)(2), which requires the proposed amended pleading be
attached to the motion. Given Davis’s pro se status, however, the Court is not yet willing to say
she has pleaded her best case or that these claims are otherwise futile. Therefore, Davis has 14
days to file a motion for leave to amend her Complaint as to these two newly-asserted claims
against Lewis and Jones individually and Hinds County based on the First Amendment and
failure-to-train/supervise. She may also seek leave to amend as to the false-arrest claim against
Hinds County. She may not include any other new claims.
If Davis chooses to make such a filing, her proposed amended complaint must be
attached. She is warned that this Court need not grant leave to file a futile amended complaint.
Finally, should Davis receive leave to amend her Complaint as to Lewis and Jones, she will at
that time be given an opportunity to attempt service of process.
Remaining Unserved Defendants
The Court dismisses the claims against Lewis and Jones in their individual capacities, but
individual Defendants Chris Maddox and Bobby Melson still remain. It does not appear,
however, that Davis ever served Maddox or Melson. As noted above, the state-court record is
insufficient to determine adequate service of process. Further, Hinds County disputes whether
Maddox and Melson were Hinds County Officers at the time of these incidents, and Davis has
served only Claire Barker, in-house counsel for Hinds County Sheriff’s Office. Defs.’ Reply
 at 1 n.1.
As noted, “Rule 4(m) permits a district court to dismiss a case without prejudice if the
plaintiff fails to serve the defendant within 120 days of filing the complaint.” Millan v. USAA
Gen. Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008); see, e.g., Bernard Delcarpio No. 119047 v.
Cain, No. 13-273-SDD-RLB, 2015 WL 461544, at *1 (M.D. La. Feb. 3, 2015); Chestang v.
Alcorn State Univ., No. 5:10-CV-67-DCB-JMR, 2011 WL 6152287, at *2 (S.D. Miss. Dec. 12,
2011). Accordingly, Davis is given 14 days from the date of this Order to show cause as to why
Maddox and Melson should not be dismissed for failure to timely effect service under Rule 4(m).
She is warned that failure to do so will result in an order of dismissal as to them without further
The Court has considered all the parties’ arguments. Those not specifically addressed do
not change the outcome. Davis’s motion to strike  is denied; Defendants’ motions for
judgment on the pleadings as to state-law claims  is granted in part; and Defendants’ motion
for judgment on the pleadings as to federal claims  is granted.
In summary, the federal-law claims pleaded in the Complaint are dismissed as to Lewis
and Jones in their individual capacities without prejudice under 12(b)(5). The state-law claims
asserted against Lewis and Jones in their individual capacities are likewise dismissed without
prejudice for lack of service. As to Hinds County, the state-law claims related to the events at
the detention center are dismissed with prejudice. As to the arrest-related claims, the false-arrest
claim is dismissed without prejudice to potential amendment; the malicious-prosecution claim is
dismissed with prejudice; but the motion is denied as to excessive force, false imprisonment, and
abuse of process.
Davis is given limited leave to file a motion to amend her Complaint within 14 days of
this Order. Such a motion would be limited to federal claims against Lewis and Jones in their
individual capacities under the First Amendment and against Lewis for alleged reckless
hiring/supervision. As to Hinds County, Davis may seek leave to amend to bring a federal First
Amendment claim, and a state-law false-arrest claim. Within this same 14-day window, Davis
must show cause why Maddox and Melson should not be dismissed.
Given this ruling, the stay currently in place is hereby lifted. Within ten days of the date
of this Order, the parties should contact Magistrate Judge F. Keith Ball’s chambers to determine
a case-management-conference date.
SO ORDERED AND ADJUDGED this the 23rd day of May, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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