Prater v. Wilkinson County, Mississippi et al

Filing 39

ORDER denying 30 Motion for Extension of Time to File; finding as moot 25 Motion to Dismiss; denying 27 Motion for Extension of Time to File; denying 27 Motion for Extension of Time to File Response/Reply ; granting 28 Motion to Amend/Correct. Signed by Honorable David C. Bramlette, III on October 28, 2014. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
Easter Prater
VS.

PLAINTIFF
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

ORDER GRANTING MOTION FOR LEAVE TO AMEND
COMPLAINT AND DENYING MOTION TO DISMISS
This cause is before the Court on Defendants’, Bill Bankston,
Jennings Nettles, and Will Seal, Motion to Dismiss [docket entry
no. 25] and Plaintiff’s Motion for Extension of Time to File Reply
Brief [docket entry no. 27], Motion to Amend/Correct Complaint
[docket entry no. 28], and Motion to File Reply Brief Out of Time
[docket entry no. 30]. Having considered the motions and responses,
applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
I. Factual and Procedural History
Plaintiff Easter Prater initiated this action on February 20,
2013 alleging seven counts of violations of her rights against
Wilkinson County and members of its Board of Supervisors. Compl. p.
6-7, ECF No. 1. Defendants Bill Bankston, Jennings Nettles, and
Will Seal filed their first motion to dismiss Prater’s federal

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constitutional claims against them in their individual capacities
based on qualified immunity on March 21, 2013. Mot. Dismiss, ECF
No. 8. The Court entered an Order denying without prejudice this
motion and ordering Prater to file “a Reply pursuant to Rule 7(a)
of the Federal Rules of Civil Procedure, addressing the qualified
immunity

defense

asserted

by

[the

defendants],

on

or

before

November 29, 2013.” Order p. 7, ECF No. 23. Because Prater did not
thereafter file a timely reply, Bankston, Nettles, and Seal renewed
their motion to dismiss. Mot. Dismiss, ECF No. 25.
Prater has since filed three motions to overcome the renewed
motion: (1) motion for extension of time to file a reply, (2)
motion to amend complaint, and (3) motion to file reply out of
time. Because Prater attached no exhibits to her motion to amend,
the Court ordered Prater to submit a proposed amended complaint.
Order p. 1, ECF No. 35. Prater timely filed her proposed amended
complaint, and Bankston, Nettles, and Seal thereafter submitted two
supplemental briefs, both arguing that Prater’s filing did not cure
the original complaint’s deficiencies. Rebuttal, ECF No. 37; Resp.
Opp., ECF No. 38.
II. Analysis
A. Motions for Extension of Time and Leave to File Out of Time
Prater filed two motions, docketed distinctly, requesting
permission from this Court to file her court-ordered reply brief
out of time. See Mot. Extension of Time to File Reply Brief, Mot.

2

Extension of Time to File Resp./Reply as to Order on Mot. Dismiss
(“Mot. 1"), ECF No. 27; Mot. Extension of Time to File Reply Brief
Out of Time (“Mot. 2"), ECF No. 30. The texts of these motions are
identical. The motions argue that Prater should be allowed to
submit

her

reply

brief

out

of

time

because

she

“mistakenly

overlooked the portion of [this Court’s] Order” ordering Prater to
submit a reply brief. Mot. 1 p. 1; Mot. 2 p. 1. Prater attached her
proposed reply brief as an exhibit to one of the motions. See Mot.
1 Ex. A, ECF No. 27-1.
In it, Prater admitted that she “failed to allege what words
and actions were spoken and taken by each defendant which formed
the basis of” her constitutional claims and “recognize[d] that [her
complaint]

might

not

have

met

the

[heightened

pleading]

requirement”. Mot. 1 Ex. A p. 2. She then uses her proposed reply
brief to request leave to amend her complaint and to argue why
amendment should be allowed. Mot. 1 Ex. A p. 2-3.
Because Prater’s three motions all request what is ultimately
the same relief, the Court will deny Prater’s motions to file a
reply brief out of time and for an extension of time and focus its
attention on Prater’s motion for leave to amend.
B. Motion to Amend Complaint
A party may amend its pleadings, not as a matter of course,
only with either the written consent of the opposing party or by
leave of court. Fed. R. Civ P. 15(a)(2). Because the defendants

3

oppose Prater’s motion to amend, she requires the Court’s leave.
“The court should freely give leave when justice so requires.” Id.
The Supreme Court has stated five circumstances when leave should
not be given: (1) undue delay, (2) bad faith or dilatory motive on
the part of the movant, (3) repeated failure to cure deficiencies
by amendments previously allowed, (4) undue prejudice to the
opposing party by virtue of allowance of the amendment, and (5)
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).
The Court finds that none of the first four circumstances are
applicable to this case, and the defendants do not argue that they
are in their response to Prater’s motion. Whether Prater should be
granted

leave

to

amend

turns

on

the

remaining

circumstance:

futility of amendment. “An amendment is futile if the amended
complaint is subject to dismissal under Rule 12(b)(6) for failure
to state a claim upon which relief could be granted.” Black Farmers
& Agriculturalists Ass’n, Inc. v. Hood, No. 3:13cv763, 2014 WL
935147, at *6 (S.D. Miss. Mar. 10, 2014) (citing Stripling v.
Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000)).
Concerning Prater’s initial complaint, the Court previously
found:
The plaintiff’s Complaint fails to meet the applicable
heightened pleading standards. The facts alleged in the
Complaint regarding her First Amendment claim are (1)
that she was terminated from her job as Deputy Justice
Court Clerk by the Wilkinson County Board of Supervisors
for political reasons; (2) that she vigorously sought to
have Democratic candidates elected to office in the
general elections in Wilkinson County, and spoke publicly
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about the need to elect Democratic candidates; (3) that
most of the Democratic candidates who were elected to
office in the general elections were African-Americans;
and (4) that the defendants opposed the plaintiff
speaking out publicly about the need to elect Democratic
candidates. Regarding her Fourteenth Amendment claim, the
plaintiff alleges (1) that she was paid for regular time
by Wilkinson County, but was not paid for overtime
despite the fact that she worked more than 40 hours per
week; (2) that she filed a complaint with the Board of
Supervisors protesting its refusal to pay her overtime;
(3) the defendants have paid male workers overtime; and
(4) the defendants have paid Caucasian workers overtime.
Order p. 5-6, ECF No. 23 (internal citations omitted). The Court
also stated that Prater needed “claims of specific conduct and
actions

giving

rise

to

a

constitutional

violation”

for

her

complaint to survive, Order p. 6, ECF No. 23 (citing Baker v.
Putnal, 75 F.3d 190, 195 (5th Cir. 1996)), and could not “allege
‘mere conclus[ory] statements evidencing only a personal belief
that the defendants were motivated by an impermissible animus,’”
Id. (quoting Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th. Cir.
1994)).
Prater’s proposed amended complaint is substantially similar
to her original complaint, and the Court identifies five changes
made:

(1)

the

elimination
party;1

Supervisors

as

a

description

of

the

of

the

(2)

minor

defendants’

Wilkinson
stylistic

capacity

County

Board

changes

related

to

to

of
the

Wilkinson

County; (3) the addition of two paragraphs in the section related

1

See Order p. 1, ECF No. 22 (dismissing “the Wilkinson
County Board of Supervisors [because it] is not a political
subdivision subject to suit”).
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to Prater’s exhaustion of administrative remedies; (4) the addition
of one paragraph to the facts section;

and (5) the removal of

Prater’s claims for common law negligence and gross negligence.2
In their supplemental briefs, filed without leave of court,
Bankston,

Nettles,

and

Seal

argue

that

these

changes

render

Prater’s amendment futile. Leave of court is required to file an
additional brief because “the movant is generally entitled to file
the

last

pleading.”

Ponder

Research

Grp.,

LLP

v.

Aquatic

Navigation, Inc., No. 4:09cv332, 2009 WL 2868456, at *13 (N.D. Tex.
Sep. 4, 2009); see also Pierce v. The Clarion Ledger, 433 F. Supp.
2d 754, 760 n.7 (S.D. Miss. 2006). And those filed without leave
need not be considered by a court. Strausbaugh v. Bank of Am., No.
1:12cv317, 2013 WL 416260, at *1 (S.D. Miss. Feb. 1, 2013) (“. . .
Plaintiff did not request or receive leave of Court to file a
surrebuttal, and this document is therefore not properly before the
Court.”). Because these briefs are not properly before the Court,
they will not be considered.
Given the great favor bestowed on leave to amend, the Court
will grant Prater’s motion for leave to amend and her proposed
amended complaint will be filed immediately.

2

See Order p. 6-8, ECF No. 24 (dismissing state law claims
for negligence and gross negligence for failure to comply with
requirements of the Mississippi Tort Claims Act). Although
Prater’s claim for free speech violations under the Mississippi
Constitution remains in paragraph forty-three of her proposed
amended complaint, it has also been dismissed. See Order p. 6,
ECF No. 24.
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C. Motion to Dismiss
Filing

“[a]n

amended

complaint

supersedes

the

original

complaint and renders it of no legal effect unless the amended
complaint specifically refers to and adopts or incorporates by
reference the earlier pleading.” Stewart v. City of Houston Police
Dep’t, 372 F. App’x 475, 478 (5th Cir. 2010) (quoting King v.
Dogan,

31

F.3d

344,

346

(5th

Cir.

1994)).

Prater’s

amended

complaint does not adopt or incorporate her original complaint.
Because a motion to dismiss is not a responsive pleading, Whitaker
v. City of Houston, Tex., 963 F.2d 831, 834-35 (5th Cir. 1992),
when the complaint it addresses has been rendered of no legal
effect, the motion to dismiss becomes moot. See e.g., Reyna v.
Deutsche Bank Nat. Trust Co., 892 F. Supp. 2d 829, 834 (W.D. Tex.
2012) (citing Smallwood v. Bank of Am., No. 3:11cv1283, 2011 WL
4941044 at *1 (N.D. Tex. Oct. 17, 2011)).
Because Prater has been granted leave to amend her complaint,
the Court finds that the motion to dismiss based on qualified
immunity is rendered moot. The defendants may refile their motion.
III. Order
IT IS HEREBY ORDERED that the plaintiff’s Motion for Extension
of Time to File Reply Brief to Individual Defendants’ Motion to
Dismiss Constitutional Claims, Motion for Extension of Time to File
Response/Reply as to Order on Motion to Dismiss Granting Plaintiff
7 Days from November 5, 2013 [docket entry no. 27] is DENIED.

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FURTHER ORDERED that plaintiff’s Motion for Extension of Time
to File Plaintiff’s Reply Brief Out of Time [docket entry no. 30]
is DENIED.
FURTHER

ORDERED

that

plaintiff’s

Motion

to

Amend/Correct

Complaint [docket entry no. 28] is GRANTED.
FURTHER ORDERED that plaintiff’s Proposed Amended Complaint
will be filed immediately by the Clerk’s Office as plaintiff’s
Amended Complaint.
FURTHER ORDERED that the defendants’ Motion to Dismiss Federal
Constitutional Claims Against Them in Their Individual Capacities
Based Upon Qualified Immunity [docket entry no. 25] is DENIED
without prejudice as MOOT.

SO ORDERED this the 28th day of October 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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