S.O. v. Hinds County School District et al
ORDER denying 50 Motion to Amend/Correct; denying 10 Motion to Dismiss; granting in part 18 Motion to Dismiss; granting in part 20 Motion to Dismiss as set out in the Order. The Court orders that the stay entered on August 28, 2017, by Unite d States Magistrate Judge F. Keith Ball be lifted, and proceedings may continue consistent with these holdings. The parties are directed to contact Judge Ball's chambers within ten days of the entry of this Order to set the case for a case-management conference. Signed by District Judge Daniel P. Jordan III on October 18, 2017.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
S.O., INDIVIDUALLY AND ON BEHALF
OF HER MINOR SON, B.O.
CIVIL ACTION NO. 3:17-CV-383-DPJ-KFB
HINDS COUNTY SCHOOL DISTRICT, ET AL.
There are four motions pending in this § 1983 case: Defendants filed three separate
Motions to Dismiss [10, 18, 20], each raising arguments as to why particular claims should be
dismissed as to certain defendants, and Plaintiffs moved to amend their complaint . For the
reasons that follow, Defendant Hinds County School District’s motion to dismiss  is granted
in part; Defendants Ben Lundy, Tommy Brumfield, Michelle Ray, and Shannon Rankin’s motion
to dismiss  is granted in part; Defendants Byram Police Department and Officer Ricardo
Montez Kincaid’s motion to dismiss  is denied; and Plaintiffs’ motion to amend  is
Plaintiffs are suing Defendants due to alleged conduct that occurred during a disciplinary
action at Byram Middle School. Plaintiffs’ Amended Complaint  alleges that, on April 4,
2017, Defendant Shannon Rankin, a social-studies teacher, accused Plaintiff B.O., a seventhgrade student, of selling candy bars during class and directed him to go to the assistant
principal’s office. Once there, Defendant Tommy Brumfield, an assistant principal, proceeded to
pat-down and empty B.O.’s pockets in search of evidence pertaining to the candy-bar sales but
found nothing. During this pat-down, B.O. alleges that he felt his penis being touched.
When Brumfield found nothing in B.O.’s pockets, Defendant Michelle Ray, another
assistant principal, emptied B.O.’s school bag and found various items, including a purse and
three Hinds County School District (“HCSD”) calculators. B.O. claims that his math teacher
authorized him to carry these calculators and that the purse belonged to his aunt.
After these searches, B.O. says he was forced to dig in a trash can to search for any candy
wrappers that were thrown away during his trip to the assistant principal’s office. B.O. alleges
that all of this occurred in the presence of Defendant Officer Ricardo Montez Kincaid, an officer
with the Byram Police Department.
Based on these events, S.O. filed this suit individually and on behalf of her minor son
B.O. They assert claims under § 1983 for violating the Fourth, Thirteenth, and Fourteenth
Amendments as well as various state-law causes of action. Defendants, who were sued in their
individual and official capacities, have since filed multiple motions to dismiss [10, 18, 20] that
identify purported deficiencies in Plaintiffs’ Amended Complaint. Having been fully briefed, the
Court is ready to rule on these motions and otherwise clean up the docket.
Hinds County School District’s Motion to Dismiss
Plaintiffs say Defendant HCSD is liable under § 1983 and state law because its
employees violated B.O.’s constitutional rights and otherwise assaulted him. HCSD raises two
issues in its motion to dismiss . First, HCSD says that Plaintiffs’ Amended Complaint
should be dismissed because it is unsigned. Second, HCSD contends that the Court cannot hear
Plaintiffs’ state-law claims because Plaintiffs failed to comply with the Mississippi Tort Claims
Act’s (“MTCA”) notice provisions. See Miss. Code Ann. § 11-46-11.1
First, in regards to the unsigned Amended Complaint, Plaintiffs filed a signed version of
the signature page on June 26, 2017. See Attachment . While this entry is dated 35 days
after Plaintiffs filed the Amended Complaint, the Court finds that Plaintiffs cured the defect and
HCSD was not prejudiced. Therefore, the Court will focus on HCSD’s second argument.
There is no dispute that Plaintiffs failed to give HCSD notice of their state-law claims.
Under the MTCA, a plaintiff wishing to bring a tort claim against a government entity must
provide written notice of the claim “at least ninety (90) days before instituting suit.” Miss. Code
Ann. § 11-46-11(1). This pre-suit-notice requirement is jurisdictional and “imposes a condition
precedent to the right to maintain an action.” Bunton v. King, 995 So. 2d 694, 695 (Miss. 2008)
(quoting Miss. Dep’t of Pub. Safety v. Stringer, 748 So. 2d 662, 665 (Miss. 1999)). But Plaintiffs
hope to evade the notice requirement by arguing that the Court has original jurisdiction over their
§ 1983 claims and may exercise supplemental jurisdiction over the tort claims. See Pls.’ Mem.
 at 4 (citing 28 U.S.C. § 1367(a)). Thus, they seem to suggest that no notice was required.
Plaintiffs offer no authority for this argument, and it is not persuasive. Bringing federal
and state-law causes of action in the same federal suit may create supplemental jurisdiction under
§ 1367(a), but it does not circumvent conditions precedent to a state’s consent to such suits. Cf.
Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541–42 (2002) (“[W]e cannot read § 1367(a)
to authorize district courts to exercise jurisdiction over claims against nonconsenting States, even
though nothing in the statute expressly excludes such claims. Thus, consistent with [Blatchford
HCSD also contested service of process, but Plaintiffs later remedied that defect as to this
Defendant. See HCSD Reply  at 2.
v. Native Village of Noatak, 501 U.S. 775 (1991)], we hold that § 1367(a)’s grant of jurisdiction
does not extend to claims against nonconsenting state defendants.”); see also Montgomery v.
Mississippi, 498 F. Supp. 2d 892, 905 (S.D. Miss. 2007) (refusing to hear plaintiff’s state-law
claims brought with federal claims under § 1367 and concluding that “[b]ecause [plaintiff] failed
to provide any notice whatsoever, the Court finds that all state law tort claims for ‘wrongful
demotion’ are procedurally barred due to his failure to comply with the notice provisions of the
MTCA”). As such, Plaintiffs’ failure to provide statutory notice is fatal to their state-law causes
of action against HCSD. HCSD’s Motion to Dismiss  is granted in part as to Plaintiffs’
Defendants Brumfield, Lundy, Ray, and Rankin’s Motion to Dismiss
These defendants raise two issues: (1) that service of process was never perfected; and
(2) that Plaintiffs failed to give notice under the MTCA. The first argument seems moot, and the
second is at least partially correct.
Starting with service of process, Plaintiffs’ initial attempts to serve these Defendants
individually failed to comply with Federal Rule of Civil Procedure 4(e). But Plaintiffs have
since taken another stab at it, and this time they appear to have complied with the rules. See
Summons Returns [43–49]. Because these subsequent attempts occurred within 90 days of filing
the Amended Complaint, the issue appears to be moot.2
As for MTCA notice, Plaintiffs bring state-law claims against Defendants Brumfield and
Lundy in their individual and official capacities. See Am. Compl.  at 12–13. Yet, as with
All of this occurred after the parties completed briefing, so the Court has some concern that
Defendants may have issues regarding the most recent attempts. That said, ineffective service of
process may be waived, and these new returns were docketed at the latest on August 15, 2017.
So far, there have been no objections.
HCSD, there is no dispute in the record that Plaintiffs never provided notice of their intent to
bring these claims. Defendants therefore assert that “this Court lacks personal jurisdiction over
same.” Defs.’ Mem.  at 2. But Defendants fail to elaborate or explain whether their
argument relates to the official and/or individual-capacity claims against Brumfield and Lundy.
In Johnson v. City of Shelby, Mississippi, the Fifth Circuit summarized the MTCA notice
requirements as they apply to individual state employees:
This “notice requirement applies to suit brought against an employee, acting in his
official capacity.” McGehee v. DePoyster, 708 So. 2d 77, 79 (Miss. 1998).
Moreover, “an action against a government employee in his individual capacity
may be subject to notice of claim requirements if the act complained of occurred
within the scope and course of his employment.” Id. at 80. The MTCA, however,
does not “requir[e] notice to . . . government authorities of suit brought against
[them] individually for acts outside of the scope of [their] employment.” Id. at
743 F.3d 59, 63 (5th Cir. 2013), rev’d on other grounds, 135 S. Ct. 346 (2014) (alternations in
Under these standards, the official-capacity state-law claims are dismissed. But the
individual-capacity claims are trickier to address without relevant argument from the parties.
The Court therefore denies that portion of the motion  without prejudice.3
Defendants Byram Police Department and Officer Kincaid’s Motion to Dismiss
These Defendants say that Plaintiffs’ claims should be dismissed for failure to provide
MTCA notice and failure to perfect service of process as to the Byram Police Department.
First, regarding the MTCA-notice issue, Defendants assert that the lack of notice destroys
the Court’s “jurisdiction to hear the claims against” them. Defs.’ Mem.  at 2. But the only
Of course any individual-capacity claims regarding acts taken within the course and scope of
employment would be barred under Mississippi Code section 11-46-7. That issue is not before
the Court at this time.
claims against these Defendants arise under § 1983, so there are no state-law claims for which
MTCA notice would be required. See Felder v. Casey, 487 U.S. 131, 153 (1988) (holding that
failure to comply with pre-suit-notice requirement under state law could not bar action under
§ 1983). Defendants’ notice argument lacks merit.
Second, Plaintiffs have since cured the service-of-process defect as to the Byram Police
Department. Five days after these defendants filed their motion to dismiss, Plaintiffs effected
service upon the City of Byram’s municipal clerk. See Pls.’ Mem.  at 3. Defendants filed no
reply challenging this portion of Plaintiffs’ response, and for these reasons, their Motion to
Dismiss  is denied.
Motion to Amend
Plaintiffs filed a motion to amend their Amended Complaint on August 28, 2017.
Plaintiffs’ motion is defective, however, since Plaintiffs did not attach a proposed amended
pleading as an exhibit. See L.U. Civ. R. 15. (“If leave of court is required under Rule 15, a
proposed amended pleading must be an exhibit to a motion for leave to file the pleading, and, if
the motion is granted, the movant must file the amended pleading as a separately docketed item
within seven (7) days from entry of the order granting the motion.”). Therefore, the Court denies
Plaintiffs’ motion to amend .4
The Court has considered all the parties’ arguments. Those not specifically addressed do
not change the outcome. For the foregoing reasons, first, the Court grants Defendant HCSD’s
Motion to Dismiss  solely as to the state-law claims. Second, the Court grants Defendants’
The Court is also concerned that Plaintiffs’ proposed amendment is futile as it seeks to add
state-law claims against Defendants Byram Police Department and Officer Kincaid. The Court
would not have jurisdiction over these claims if Plaintiffs failed to give notice under the MTCA.
Motion to Dismiss  solely as to the state-law claims asserted against Defendants Brumfield
and Lundy in their official capacities. Third, the Court denies Defendants’ Motion to Dismiss
. Finally, the Court denies Plaintiffs’ Motion to Amend Complaint .
The Court also orders that the stay entered on August 28, 2017, by United States
Magistrate Judge F. Keith Ball be lifted, and proceedings may continue consistent with these
Finally, the parties are directed to contact Judge Ball’s chambers within ten days of the
entry of this Order to set the case for a case-management conference.
SO ORDERED AND ADJUDGED this the 18th day of October, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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