Epps v. Hazlehurst City School District et al

Filing 39

ORDER granting in part and denying in part 23 Motion for Judgment on the Pleadings. A Schultea v. Wood Reply shall be filed on or before November 9, 2018. Signed by District Judge Louis Guirola, Jr on 10/26/2018 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LATARSHA EPPS

PLAINTIFF

v.

CAUSE NO. 3:17cv918-LG-LRA

HAZLEHURST CITY SCHOOL
DISTRICT; LISA DAVIS, in her
individual and official capacities;
KENNETH THRASHER, in his
individual and official capacities;
PAUL RHODES, in his individual
and official capacities; and JOHN
DOES 3-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS
BEFORE THE COURT is the [23] Motion for Judgment on the Pleadings
Based on Qualified Immunity filed by Defendants Lisa Davis, Paul Rhodes, and
Kenneth Thrasher. The Motion argues that Plaintiff Latarsha Epps has failed to
plead her claims under 42 U.S.C. § 1983 with sufficient particularity to overcome
Defendants qualified immunity. However, it is unclear what specific relief
Defendants’ seek. The Motion interchangeably requests dismissal of the § 1983
claims, a Court-ordered Schultea reply, and limited immunity-related discovery.
The Motion is fully briefed. Having reviewed the pleadings, the submissions of the
parties, and relevant law, the Court finds that a Schultea reply is required.
I. BACKGROUND
Plaintiff Latarsha Epps is a former employee of the Hazlehurst City School
District (“the School District”) who held various different positions from March 2009

through her date of termination on November 18, 2016. At the time of her
termination, she was employed as a business office assistant and also as the
administrative assistant clerk for the Board of Trustees of the School District (“the
Board”). She says that her position as the Board’s administrative assistant clerk
was pursuant to a contract providing for a one-year term of employment beginning
July 1, 2016.
Epps’ [4] Amended Complaint alleges that from July 1, 2016 through the date
of her termination, she informed all of the defendants – the District, Lisa Davis,
Kenneth Thrasher, and Paul Rhodes – that various actions by Davis – the
superintendent for the District – and the Board violated state laws regarding
nepotism, finances, bids, and Board meeting record keeping. Epps asserts she told
Thrasher and Rhodes – members of the Board – and Davis that Davis’s decision to
hire her son into a position in which Davis was his supervisor violated the state’s
nepotism prohibition. Epps says she informed Thrasher, Rhodes, and Davis that
the Board’s use of District money to pay for Mississippi High School Athletic
Association passes for Board members, Davis, and Davis’s family was a
misappropriation of public funds.
Epps also maintains that she informed Thrasher, Rhodes, and Davis that
Davis’s attempt to coerce Epps to change already-approved meeting minutes and
the Board’s decision to alter those approved minutes were both illegal. Epps says
she spoke to, and emailed, Thrasher, Rhodes, and Davis about Davis abusing her
power as superintendent, failing to follow travel requirements, backdating

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documents, changing board minutes, failing to follow statutory purchasing
requirements, and improper use of money. Finally, Epps says she told Thrasher
and Rhodes that Davis retaliates against employees for exercising their free speech
right. On November 18, 2016, Epps was fired. She says her termination was
retaliation for speaking publicly about Davis’s unlawful conduct.
Epps’ Amended Complaint alleges causes of action under 42 U.S.C. § 1983,
the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and
Mississippi tort law. Pertinent to the instant Motion for Judgment Based on
Qualified Immunity on the Pleadings are Epps’ § 1983 claims. She alleges First
Amendment retaliation against all defendants and a related claim, purportedly
against the District, Thrasher, and Rhodes, for their failure to investigate Epps’
charges of wrongdoing and unlawful termination.
The Motion for Judgment on the Pleadings Based on Qualified Immunity
seemingly requests three alternative forms of relief: 1) dismissal of the plaintiff’s §
1983 claims against Davis, Thrasher, and Rhodes in their individual capacities, 2) a
Schultea Reply stating “specific factual and legal allegations tied to each particular
defendant,” or 3) leave for the parties to conduct limited immunity-related
discovery. (Defs.’ Mem. Supp. Mot. J. Pleadings 8, ECF No. 24.) Epps contends in
response that she has sufficiently pleaded a factual basis for her claims against
Davis, Thrasher, and Rhodes individually, but alternatively asks for leave to file a
Schultea Reply. In Reply, Defendants argue that Epps’ failure to investigate claim
fails to allege a constitutional violation and that Epps’ First Amendment retaliation

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claim fails because she does not allege that her protected speech was made as a
citizen.
II. DISCUSSION
a. Standard of Review
“A Motion for judgment on the pleadings under Rule 12(c) is subject to 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). To avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
In deciding a Rule 12(c) motion, the Court accepts all well pleaded facts as
true and views them in the light most favorable to Plaintiff. Linicomn v. Hill, 902
F.3d 529, 533 (5th Cir. 2018). But “the complaint must allege more than labels and
conclusions, a formulaic recitation of the elements of a cause of action will not do,
and factual allegations must be enough to raise a right to relief above the
speculative level.” Jabaco, Inc. v. Harrah’s Operating Co., Inc., 587 F.3d 314, 318
(5th Cir. 2009). “While legal conclusions can provide the complaint’s framework,
they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.

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b. Qualified Immunity
42 U.S.C. § 1983 provides a cause of action for the violation of an individual’s
rights secured by the Constitution or laws of the United States by a person acting
under color of state law. However, “[t]he doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, a
government official is entitled to immunity from suit unless (1) Plaintiff has made
allegations sufficient to show a violation of a constitutional right, and (2) the right
at issue was “clearly established” at the time of the official’s alleged misconduct. Id.
at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
“When a defendant pleads the defense of qualified immunity, the trial judge
should determine both what the current applicable law is and whether it was
clearly established when the action occurred.” Schultea v. Wood, 47 F.3d 1427, 1432
(5th Cir. 1995) (en banc) (citing Siegert v. Gilley, 500 U.S. 226, 231 (1991)). The
plaintiff Acannot be allowed to rest on general characterizations, but must speak to
the factual particulars of the alleged actions, at least when those facts are known to
the plaintiff and are not particularly within the knowledge of the defendants.@ Id.
The plaintiff must provide Aallegations of fact focusing specifically on the conduct of
the individual who caused the plaintiff=s injury.@ Reyes v. Sazan, 168 F.3d 158, 161
(5th Cir. 1999).

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The Fifth Circuit has instructed the trial courts that there exists an
alternative to outright dismissal of claims that do not surmount the threshold
hurdle of qualified immunity:
When a public official pleads the affirmative defense of
qualified immunity in his answer, the district court may,
on the official’s motion or on its own, require the plaintiff
to reply to that defense in detail. By definition, the reply
must be tailored to the assertion of qualified immunity
and fairly engage its allegations. A defendant has an
incentive to plead his defense with some particularity
because it has the practical effect of requiring
particularity in the reply.
Schultea, 47 F.3d at 1433. “Vindicating the immunity doctrine will ordinarily
require such a reply, and a district court’s discretion not to do so is narrow indeed
when greater detail might assist.” Id. at 1434.
c. Analysis
Epps’ two § 1983 claims are premised upon the First Amendment and,
presumably, the Fourteenth Amendment (although Epps does not state a
constitutional basis for her failure to investigate claim). The Court will address
each in turn.
To allege an actionable § 1983 First Amendment retaliation claim, a public
employee like Epps must establish the following: “(1) she suffered an adverse
employment action; (2) her speech involved a matter of public concern; (3) her
interest in commenting on matters of public concern outweighs the employer's
interest in promoting efficiency; and (4) her speech motivated the employer's
adverse action.” Modica v. Taylor, 465 F.3d 174, 180 (5th Cir. 2006). Defendants

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argue that Epps has failed to adequately allege that the speech at issue involved a
matter of public concern. The Court agrees that the Complaint does not clearly
indicate the circumstance of Epps’ allegedly protected speech.
“Whether the speech at issue is on a matter of public concern is a question of
law that must be determined by the court.” Modica, 465 F.3d at 180 (quoting Salge
v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005)). But “before asking
whether the subject-matter of particular speech is a topic of public concern, the
court must decide whether the plaintiff was speaking ‘as a citizen’ or as part of her
public job.” Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (quoting Mills v.
City of Evansville, 452 F.3d 646, 647 (7th Cir. 2006)). “Only when government
penalizes speech that a plaintiff utters ‘as a citizen’ must the court consider the
balance of public and private interests . . . .” Id. (quoting Mills, 452 F.3d at 647-48).
“Activities undertaken in the course of performing one’s job are activities pursuant
to official duties and not entitled to First Amendment protection.” Id. at 313.
The Amended Complaint does not specify how, where, when, and in what
capacity Epps informed each of the defendants that their conduct ran afoul of state
laws. It is necessary for the Court to consider these circumstances in order to make
a determination about whether Epps spoke as a citizen on a matter of public
concern. Epps will be required to file a Schultea Reply that more particularly
addresses these shortcomings.
Additionally, given qualified immunity’s requirement that any asserted basis
for § 1983 liability be clearly established at the time of the relevant events, the

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Court directs the plaintiff to consider the Fifth Circuit’s recent decision in Sims v.
City of Madisonville, 894 F.3d 632, 639 (5th Cir. 2018), which this Court discussed
in Smith v. City of Madison, No. 3:18cv18-LG-RHW (S.D. Miss. Oct. 23, 2018)
(Mem. Op. & Order, ECF No. 62). Sims held that, although “individual liability for
a government official who violates constitutional rights, including First Amendment
ones, turns on traditional tort principles of ‘but for’ causation,” it was not clearly
established prior to Sims that “First Amendment liability can attach to a public
official who did not make the final employment decision.” 894 F.3d at 639-41. Epps
is directed to also address in her Reply the extent to which Sims forecloses, on
immunity grounds, her First Amendment retaliation claims against defendants in
their individual capacities.
As to Epps’ failure to investigate claim, it is not clear to the Court that such
an independent claim exists. See, e.g., Rolen v. City of Brownfield, 182 F. App’x 362,
364 (5th Cir. 2006) (“Failure to investigate or prosecute an offense does not give rise
to § 1983 liability.”); Doe v. City of Pharr, No. 7:14-CV-285, 2015 WL 12966230, at
*4 (S.D. Tex. Feb. 19, 2015), aff'd, 652 F. App'x 259 (5th Cir. 2016) (“In short,
Plaintiffs’ claim that Mata was not properly investigated and prosecuted for his
actions does not allege that any of Jane Doe’s federally or constitutionally protected
rights were violated.”); World Wide St. Preachers’ Fellowship v. Town of Columbia,
La., No. CIV. A. 05-0513, 2008 WL 920721, at *11 (W.D. La. Apr. 3, 2008) (“‘The
court fails to see how Chief Hill’s failure to investigate Plaintiffs’ claims constitutes
a violation of Plaintiffs’ constitutional rights’ because ‘[City of St. Louis v.

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Praprotnik, 405 U.S. 112 (1988)] requires more than . . . the mere failure to
investigate the discretionary decisions of’ officers, or a ‘failure to act on the
representations made by Plaintiffs’ counsel.’”) (quoting Grove v. City of York, PA,
342 F. Supp. 2d 291, (M.D. Pa. 2004)).
Rather, as suggested by this foregoing caselaw and made more explicit by
other decisions, a municipal entity’s failure to investigate the wrongdoing of
individual misconduct “may constitute evidence that a municipality has a policy or
custom of tolerating unconstitutional behavior” for purposes of establishing
municipal liability under Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658
(1978). Greenlee v. Miami Twp, Ohio, No. 3:14-CV-173, 2015 WL 631130, at *8
(S.D. Ohio Feb. 12, 2015), aff'd, No. 15-3172 (6th Cir. Sept. 23, 2015); see also
McGuire v. Warner, No. 05-40185, 2009 WL 1210975, at *9 (E.D. Mich. Apr. 28,
2009) (“Once an individual’s rights have been violated, a subsequent failure to
investigate that very same incident—standing alone—cannot logically be the
‘moving force’ behind the alleged constitutional deprivation.”); Battista v. Cannon,
934 F. Supp. 400, 404 (M.D. Fla. 1996) (“The Plaintiff has alleged that the
Defendant, in his official capacity as Sheriff . . ., had de facto policies, as well as
customs, which were the moving force behind the deprivation of her Constitutional
rights. If proven, the Defendant’s alleged failure to investigate, supervise or
discipline [the officer] may be sufficient to constitute liability.”)
The cases cited by the plaintiff – McNeal v. Tate Cty. Sch. Dist., 460 F.2d 568,
572-73 (5th Cir. 1971) and Randle v. Indianola Mun. Separate Sch. Dist., 373 F.

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Supp. 766, 771 (N.D. Miss. 1974) – also seem to support this notion. Both cases deal
with the constitutional responsibilities and resulting liability of municipal entities,
not individual state actors. Because it is not clear to the Court what legal or
constitutional right underlies Epps’ failure-to-investigate claims, Epps is also
directed to articulate, in her Reply, the legal basis for the failure-to-investigate
claims she asserts against the defendants in their individual capacities.
III. CONCLUSION
The Court has determined that Epps’ allegations in her Amended Complaint
are insufficient to overcome the individual defendants’ cloak of qualified immunity.
Under the circumstances, the Court finds that a Schultea Reply addressing the
Court’s concerns is appropriate.
IT IS THEREFORE ORDERED AND ADJUDGED that the [23] Motion
for Judgment on the Pleadings Based on Qualified Immunity filed by Defendants
Lisa Davis, Paul Rhodes, and Kenneth Thrasher is GRANTED IN PART AND
DENIED IN PART. The Motion is GRANTED insofar as it seeks to compel
Plaintiff Latarsha Epps to respond to Defendants’ qualified immunity defense and
is otherwise DENIED at this time.
IT IS FURTHER ORDERED that Plaintiff Latarsha Epps is directed to file
a Schultea Reply consistent with this Opinion on or before November 9, 2018.
SO ORDERED AND ADJUDGED this the 26th day of October, 2018.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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