Prater v. Wilkinson County, Mississippi et al

Filing 24

ORDER granting 11 Motion to Dismiss state law claims Signed by Honorable David C. Bramlette, III on 11/5/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EASTER PRATER

PLAINTIFF

VS.

CIVIL ACTION NO. 5:13-cv-23(DCB)(MTP)

WILKINSON COUNTY, MISSISSIPPI;
WILKINSON COUNTY, MISSISSIPPI
BOARD OF SUPERVISORS; WILL SEAL;
BILL BANKSTON; and JENNINGS NETTLES

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendants Wilkinson County,
Mississippi (“the County”), and Will Seal, Bill Bankston and
Jennings Nettles (“the individual defendants”)’s Motion to Dismiss
Plaintiff’s State Law Claims (docket entry 11).

Having carefully

considered the motion and the plaintiff’s response, the memoranda
of the parties and the applicable law, and being fully advised in
the premises, the Court finds as follows:
The moving defendants seek dismissal of the plaintiff’s state
law claims pursuant to Fed.R.Civ.P. 12(b)(6), which requires the
Court to accept “all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.”

Jones v. Greninger,

188 F.3d 322, 324 (5th Cir. 1999). However, “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). In order to overcome a Rule 12(b)(6) motion, the plaintiff

must plead “enough facts to state a claim to relief that is
plausible on its face.”
544, 570 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

“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

defendant is liable for the misconduct alleged.”
at 678.

that

the

Iqbal, 556 U.S.

In examining the sufficiency of a complaint, a court

should “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.”

Id.

If, however, there are any “well-pleaded factual

allegations, the court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Id.

Although the defendants characterize their motion as one for
failure to state a claim under Rule 12(b)(6), they answered the
plaintiff’s complaint prior to the filing of their motion to
dismiss; therefore, their motion is correctly one for judgment on
the pleadings pursuant to Fed.R.Civ.P. 12(c).
F.3d 413, 418 (5th Cir. 2008).

Doe v. Myspace, 528

However, the standard for deciding

a motion for judgment on the pleadings under Rule 12(c) is the same
as that under Rule 12(b)(6).

See Great Plains Trust Co. v. Morgan

2

Stanley

Dean

Witter

&

Co.,

313

F.3d

305,

330

n.8

(5th

Cir.

2002)(“Rule 12(b)(6) decisions appropriately guide the application
of Rule 12(c) because the standards for deciding motions under both
rules are the same.”).
The plaintiff, Easter Prater, alleges in her Complaint that
she was terminated from her job as a deputy justice court clerk in
Wilkinson County, Mississippi, on February 29, 2012.
16.

Complaint, ¶

She further alleges that she was terminated for speaking out

publicly about the need for voters to elect democratic candidates
to public office in Wilkinson County. Complaint, ¶¶ 25, 40-41, 4546.

The plaintiff asserts state law claims against the County and

the individual defendants for (1) unlawful abridgment of her right
to freedom of speech under the Mississippi Constitution and state
common law (¶ 41), (2) negligence (¶ 45), and (3) gross negligence
(¶ 46).
The plaintiff’s state law claims are governed exclusively by
the Mississippi Tort Claims Act (“MTCA”), Miss. Code Ann. § 11-461, et seq.
1999).

See City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.

Under the MTCA, sovereign immunity is waived for the State

of Mississippi and its political subdivisions; however, this waiver
is subject to numerous limitations, restrictions and exceptions.
See Miss. Code Ann. § 11-46-9.
The MTCA provides the exclusive remedy against a governmental
entity or its employee, Miss. Code Ann. § 11-46-7(1), and “[a]ny

3

claim filed against a governmental entity and its employees (for
monetary relief) must be brought under [the] statutory scheme” of
the Act.

Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d

1234, 1236 (Miss. 1999).

The Act also sets forth procedures a

claimant

order

must

follow

in

to

assert

a

claim

against

a

government entity or its employee, as follows:
After all procedures within a governmental entity have
been exhausted, any person having a claim for injury
arising under the provisions of this chapter against a
governmental entity or its employee shall proceed as he
might in any action at law or in equity; provided,
however, that ninety (90) days prior to maintaining an
action thereon, such person shall file a notice of claim
with the chief executive officer of the governmental
entity.
Miss. Code Ann. § 11-46-11(1).
The notice of claim must be in writing and must contain (1) a
short and plain statement of the facts upon which the claim is
based, including the circumstances which brought about the injury;
(2) the extent of the injury; (3) the time and place the injury
occurred; (4) the names of all persons known to be involved; (5)
the amount of money damages sought; (6) the residence of the person
making the claim at the time of the injury; and (7) the residence
of the person making the claim at the time of filing the notice.
Miss. Code Ann. § 11-46-11(2)(b).
The plaintiff argues that a September 28, 2012, letter she
sent

suffices

as

her

notice

of

claim.

This

letter,

from

plaintiff’s counsel to Jennings Nettles, President of the Wilkinson

4

County Board of Supervisors, contains the following:
Please be advised that my firm has been retained to
represent Ms. Ester [sic] Prater in prosecuting her claim
for back wages and damages against the Wilkinson County,
Mississippi Board of Supervisors. Ms. Prater has worked
overtime for Claiborne [sic] County, Mississippi for more
than 20 years without being paid overtime. Furthermore,
Ms. Prater has been paid in a discriminatory manner when
compared to male and white county employees.
Ms. Prater has been informed that the Board of
Supervisors is willing to offer her $60,000.00 in back
wages. However, we calculate her back wages at about
$200,000.00 plus accumulated interest. Furthermore, Ms.
Prater has been injured and damaged by the county’s
discriminatory employment practices.
Therefore, Ms.
Prater rejects the county’s offer to settle her claims
for $60,000.00. Ms. Prater is willing to negotiate a
fair settlement.
Letter of September 28, 2012.
Mississippi law requires “substantial compliance” with the
notice requirements of § 11-46-11(2).

Lee v. Memorial Hosp. at

Gulfport, 999 So.2d 1263, 1266 (Miss. 2009).

“What constitutes

substantial compliance, while not a question of fact but one of
law, is a fact-sensitive determination.”
733 So.2d 261, 263 (Miss. 1999).

Carr v. Town of Shubuta,

The purpose of the notice

requirements is “to insure that governmental boards, commissioners,
and agencies are informed of claims against them.

Such notice

encourages entities to take corrective action as soon as possible
when necessary; encourages pre-litigation settlement of claims; and
encourages more responsibility by these agencies.”

Reaves ex rel.

Rouse v. Randall, No. 97-CA-00982-SCT, 1999 Miss. LEXIS 151, *11
(Miss. March 26, 1999).
5

Prater’s notice of claim makes no mention of her claim for
unlawful abridgment of her right to freedom of speech under the
Mississippi

Constitution

and

state

common

law.

Although

“substantial compliance” is a more lenient standard than “strict
compliance,” it is not synonymous with no compliance at all.

See

Cameron v. Wall, 2010 WL 55938, *3 (S.D. Miss. Jan. 4, 2010).
Since the letter fails to include any of the required information
as to the plaintiff’s “freedom of speech” claim, it is not in
substantial requirement with the Act, and the claim must be
dismissed.
Similarly, the letter makes no mention of any negligence or
gross negligence claims.

The only claim mentioned is one for

overtime payments, which falls under the Fair Labor Standards Act
of 1938, 29 U.S.C. § 201, et seq. (“FLSA”).

According to the

letter, the parties had begun settlement negotiations on the
plaintiff’s FLSA claim.
claims.

No mention is made of any state law

The Court therefore finds that the negligence and gross

negligence claims must also be dismissed for failure to comply with
the notice requirements of the MTCA.
The individual defendants also move for dismissal of all state
law claims against them in their individual capacities. Individual
employees of the state acting in the course and scope of their
employment have no personal liability for acts covered by the MTCA.
Only the state, subdivisions of the state, and municipalities are

6

proper parties under the MTCA.

See Miss. Code Ann. § 11-46-7(2);

Moore v. Carroll County, 960 F.Supp. 1084, 1091 (N.D. Miss.
1997)(noting that the defendant employee would “escape liability if
his actions were within the course and scope of his employment”).
“There is a rebuttable presumption that any act or omission
within the time and in the place of employment is considered to be
within the course and scope of such employment.”

Patton v. Hinds

County Juvenile Detention Center, 2011 WL 2912897, *5 (S.D. Miss.
July 18, 2011)(citing Stingley v. Smith, 844 So.2d 448, 452 (Miss.
2003); Fisher v. Talton, 2007 WL 853441, *3 (S.D. Miss. 2007)); see
also Miss. Code Ann. § 11-46-5(3). Under Mississippi law, in order
to show that the individual defendants acted outside the course and
scope of their employment, the plaintiff must show that the
defendants committed “fraud, malice, libel, slander, defamation or
any other criminal offense.”

Miss. Code Ann. § 11-46-7(2); see

also § 11-45-5(2).
The plaintiff alleges only negligence, gross negligence, and
an

infringement

Furthermore,

of

“free

nowhere

does

speech”
Prater

rights

by

explicitly

the

defendants.

suggest

that

the

defendants were acting outside the course and scope of their
employment.

None

of

the

allegations

in

the

Complaint

are

sufficient to overcome the immunity of the Supervisors in their
individual

capacities

pursuant

to

the

MTCA.

Therefore,

the

individual defendants are entitled to dismissal of the state law

7

claims against them in their individual capacities.
Accordingly,
IT

IS

HEREBY

ORDERED

that

defendants

Wilkinson

County,

Mississippi, Will Seal, Bill Bankston, and Jennings Nettles’ Motion
to Dismiss Plaintiff’s State Law Claims (docket entry 11) is
GRANTED;
FURTHER ORDERED that all state law claims against Wilkinson
County, Mississippi, are dismissed;
FURTHER ORDERED that all state law claims against Will Seal,
Bill Bankston, and Jennings Nettles in both their official and
individual capacities are dismissed.
SO ORDERED, this the 5th day of November, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

8