Prater v. Wilkinson County, Mississippi et al
Filing
52
ORDER granting 43 Motion to Dismiss. Signed by Honorable David C. Bramlette, III on December 18, 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 TO DISMISS
This cause is before the Court on Defendants’, Bill Bankston,
Jennings Nettles, and Will Seal, Motion to Dismiss [docket entry
no. 43]. Having carefully considered the motion and response,
applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
I. Factual and Procedural Background
Plaintiff Easter Prater began working for Defendant Wilkinson
County, Mississippi, (“the County”) on July 3, 1992. While she
initially worked only as a dispatcher for the Wilkinson County
Sheriff’s Department, in 1997 Prater began a second full-time job
as a Deputy Justice Court Clerk. Although Prater still works as a
dispatcher, on February 29, 2012, she was terminated from her
position as Deputy Justice Court Clerk by the Wilkinson County
Board of Supervisors (“the Board”) for what she alleges were
political reasons. Prater alleges that her involvement in the
1
Wilkinson County, Mississippi Democratic Executive Committee (“the
Executive Committee”) and her complaint to the Wage and Hour
Division of the U.S. Department of Labor over overtime pay were the
reasons for her termination.1 Defendants Bill Bankston, Jennings
Nettles, and Will Seal (“the Board Members”) are members of the
Board.
Prater is an African-American female, and through her work
with the Executive Committee, she advocated for the election of
Democratic candidates. A majority of the candidates whom the
Executive Committee helped elect were also African-American. The
Board Members are all Caucasian males. Prater claims that the Board
Members were opposed to her political advocacy and opposed her
public support of political candidates.
Further, Prater claims that she did not receive overtime pay
while her white male colleagues did. Prater filed a complaint with
the Department of Labor on December 17, 2012, alleging a lack of
overtime pay from 1997 through February 29, 2012. She further
alleges that every paycheck from that period represents a new and
1
Prater does not advance this second reason specifically in
her complaint but rather does so in her response to the motion to
dismiss. See Resp. ¶ 13, ECF No. 45. The Court will examine it
because it relies on the same facts as the complaint, and, as the
United States Supreme Court has recently stated, the Federal
Rules of Civil Procedure “do not countenance dismissal of a
[claim] for imperfect statement of the legal theory supporting
the claim asserted.” Johnson v. City of Shelby, Miss., 135 S. Ct.
346, 346 (2014) (holding that plaintiffs did not need to
specifically invoke 28 U.S.C. § 1983 in their complaint). The
facts have not changed; merely, Prater’s organization of them.
2
continuous violation of the federal overtime laws.
Prater filed her first complaint in federal court on February
20, 2013, alleging both federal and state law causes of action
including violations of her freedom of speech, violations of wage
and hour laws, violation of equal pay laws, violation of her equal
protection rights, negligence and gross negligence. Compl., ECF No.
1. On March 21, 2013, the Board Members filed their first motion to
dismiss Prater’s federal claims based on qualified immunity and
simultaneously a motion to stay this case under Local Uniform Civil
Rule 16(b)(3)(B) and a motion to dismiss all of Prater’s state law
claims. See Mot. Dismiss Federal Constitutional Claims, ECF No. 8;
Mot. Stay Case, ECF No. 10; Mot. Dismiss State Law Claims, ECF No.
11. On April 2, 2013, this case was stayed. Order, ECF No. 19. On
November 5, 2013, the Court dismissed all of the state law claims
but denied the motion to dismiss the federal claims. See Order, ECF
No.
23
(denying
without
prejudice
motion
to
dismiss
federal
claims); Order, ECF No. 24 (dismissing state law claims). Instead
the Court ordered Prater to submit a Schultea reply.2 Order p. 7,
ECF No. 23.
Prater failed to submit the ordered reply brief, prompting the
Board Members to renew their motion to dismiss on March 28, 2014.
2
See Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir.
1995) (holding that “the court may, in its discretion, insist
that a plaintiff file a reply tailored to an answer pleading the
defense of qualified immunity”).
3
Mot. Dismiss, ECF No. 25. Realizing her error, Prater then filed
multiple motions arguing that the Court should allow her to put
additional facts before the Court. See Mot. Extension of Time, ECF
No. 27; Motion to Amend/Correct, ECF No. 28; Mot. File Out of Time,
ECF No. 30. The Court ordered Prater to submit a proposed amended
complaint, Order, ECF No. 35, and eventually, on October 28, 2014,
granted her motion to file an amended complaint and again denied
the motion to dismiss without prejudice, Order, ECF No. 39 (denying
Prater’s other pending motions, as well, and lifting stay).
Prater filed her amended complaint on October 29, 2014, and
the Board Members for the third time moved to dismiss her federal
claims based on qualified immunity on November 12, 2014. See Mot.
Dismiss, ECF No. 43. On November 26, the Board Members moved again
to stay the case pending the outcome of their qualified immunity
defense motion. Mot. Stay Case, ECF No. 49. On December 4, 2014,
the parties participated in a case management conference before
Magistrate Judge Michael T. Parker, and after the conference the
motion to stay was granted. Order, ECF No. 51.
This case has now been pending before the Court for almost two
years,
and
for
the
overwhelming
majority
of
that
time,
the
discovery and disclosure deadlines normally attached to a civil
lawsuit have been stayed.
II. Analysis
The Board Members have moved to dismiss Prater’s federal
4
constitutional claims against them in their individual capacities
for failure to state a claim under Federal Rule of Civil Procedure
Rule 12(b)(6).3 None of Prater’s other claims against the Board
Members or the County, including her claims against them in their
official capacities and her claims for unpaid overtime, are at
stake in this motion.
“To survive a motion to dismiss, 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) (internal quotation omitted). The plaintiff must
plead sufficient facts so that the Court may reasonably infer the
defendant’s
liability
for
the
alleged
misconduct.
Id.
“[A]
plaintiff armed with nothing more than conclusions cannot unlock
the doors of discovery.” Doe v. Robertson, 751 F.3d 383, 393 (5th
Cir. 2014) (internal quotations omitted).
When a defendant raises the defense of qualified immunity, it
creates a heightened pleading standard. See Schultea, 46 F.3d at
1430
(finding
“that
nothing
in
Leatherman[
v.
Tarrant
Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993),]
3
The Court notes that the Board Members answered the
complaint before filing their motion to dismiss. Answer, ECF No.
41. Therefore, it is unclear whether the Board Members are making
this motion under Federal Rule of Civil Procedure 12(b)(6) or
Rule 12(c). However, this is a distinction without a difference
because both motions are governed by the same substantive
standard. Guidry v. Am. Public Life Ins. Co., 512 F.3d 177, 180
(5th Cir. 2007) (citing In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007)).
5
disturbed our holding in Elliot v. Perez, 751 F.2d 1472 (5th Cir.
1985), that complaints in [cases involving the qualified immunity
of
individual
defendants]
be
pled
with
factual
detail
and
particularity”). “Heightened pleading requires allegations 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). “To overcome the qualified immunity defense at the
pleading stage, [a plaintiff] must allege that the objectionable
conduct violated a right that was ‘clearly established at the
time,’” Morgan v. Swanson, 755 F.3d 757, 759 (5th Cir. 2014)
(quoting Pearson v. Callahan, 555 U.S. 223, 227 (2009)), and was
not “objectively reasonable in light of clearly established law,”
Nunez v. Simms, 341 F.3d 385, 387 (5th Cir. 2003).
The
Court
will
look
at
Prater’s claims
under
the
First
Amendment and Fourteenth Amendment separately.
A. First Amendment Retaliation Claim
For Prater to recover for a free speech retaliation claim, she
must satisfy four elements: “(1) the plaintiff must suffer an
adverse
employment
decision;
(2)
the
plaintiff’s
speech
must
involve a matter of public concern; (3) the plaintiff’s interest in
commenting
defendant’s
on
matters
interest
of
in
public
promoting
concern
must
efficiency;
outweigh
the
and
the
(4)
plaintiff’s speech must have motivated the defendant’s actions.”
Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 563 (5th Cir.
6
2003). In satisfaction of these elements, Prater argues
(1) she was fired from her second job, (2) for speaking
out about getting Democrats, who happened to be black,
elected to office to affect public policy and complaining
about not being paid overtime when white male employees
were paid overtime, (3) her interest in commenting on the
matter of public concern outweighed the defendants’
interest in promoting efficiency, and (4) her speech
motivated the defendants’ action in firing her.
Mem. Opp. p. 8, ECF No. 46. The Board Members do not argue that
Prater has failed to make out a prima facie case of First Amendment
retaliation, but rather they argue that she has not met her burden
under the heightened pleading standard. Mem. Supp. p. 6-7, ECF No.
44. The Court assumes arguendo that Prater has stated a First
Amendment retaliation claim, but the Court previously found that
the allegations in Prater’s initial complaint “fail[ed] to meet the
applicable heightened pleading standard.” Order p. 5-6, ECF No. 23.
In granting her motion to amend, the Court found that “Prater’s []
amended
complaint
is
substantially
similar
to
her
original
complaint[] and identifie[d] five changes.” Order p. 5, ECF No. 39.
But none of these changes relate to her First Amendment claim.
Therefore, the Court finds that Prater has failed to meet the
heightened pleading standard on this claim.
Prater now argues that the heightened pleading standard should
not apply to this claim based on a decision from the Ninth Circuit
holding that “[w]here the constitutional tort does not require an
inquiry into the defendant’s state of mind, . . . the heightened
pleading standard is inapplicable.” See Mendocino Envtl. Ctr. v.
7
Mendocino Cnty., 14 F.3d 457, 462 (9th Cir. 1994). Another district
court in the Fifth Circuit has already considered the ruling in
Mendocino and rejected it as incongruent with Fifth Circuit law.
See Todd v. Hawk, 861 F. Supp. 35, 37 (N.D. Tex. 1994), reversed on
other grounds 72 F.3d 443 (5th Cir. 1995). Although some case law
may
suggest
further
abrogation
of
the
heightened
pleading
standard,4 the Fifth Circuit has continued to apply it in cases of
qualified immunity against government officers in their individual
capacity,5 and the Court is bound to follow controlling precedent.
Prater has not alleged any specific conduct by the Board
4
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002)
(“[C]omplaints in [employment discrimination] cases, as in most
others, must satisfy only the simple requirements of Rule
8(a).”); see also Stewart v. Jackson Cnty., Miss., No.
1:07cv1270, 2008 WL 4724051, at *1 (S.D. Miss. Oct. 25, 2008)
(“‘Rule 8(a)’s simplified pleading standard applies to all civil
actions, with limited exceptions,’ none of which applies to
section 1983 actions.” (quoting Swierkiewicz, 534 U.S. at 512)).
5
See Floyd v. City of Kenner, La., 351 F. App’x 890, 893 &
n.2 (5th Cir. 2009) (per curiam) (“In reviewing [section 1983
claims against police officers], we are guided by both the
ordinary pleading standard and by a heightened one . . . . We
emphasize that this heightened pleading standard applies only to
claims against public officials in their individual
capacities.”); Morgan v. Hubert, 335 F. App’x 466, 469 (5th Cir.
2009) (per curiam) (“We apply the heightened pleading standard
announced in Schultea v. Wood” in a section 1983 claim against a
prison warden in his individual capacity.); Burge v. Stalder, 54
F. App’x 793, at *3 (5th Cir. 2002) (per curiam) (“In the face of
the assertion by a defendant public official of the defense of
qualified immunity, a § 1983 plaintiff must comply with a
heightened pleading standard.”); but see Cox v. Kaelin, 577 F.
App’x 306, 312-13 (5th Cir. 2014) (per curiam) (suggesting that
application of the heightened pleading standard in a section 1983
claim would be a misreading of Schultea).
8
Members. Therefore, because Prater provided no additional factual
allegations in her amended complaint to bolster her Fist Amendment
claim against the Board Members in their individual capacity, the
Court finds that this claim will be dismissed.
B. Fourteenth Amendment Disparate Treatment Claim
Prater characterizes her Fourteenth Amendment claim as one for
disparate treatment. Mem. Opp. p. 9. “Disparate treatment refers to
deliberate discrimination in the terms or conditions of employment,
in this case [overtime pay], on account of race, national origin,
or gender.” Munoz v. Orr, 200 F.3d 291, 299 (5h Cir. 2000). To
recover on a theory of disparate treatment,6 Prater must plead: (1)
membership in a protected class, (2) that she was qualified for the
position, (3) that she was subject to adverse employment action,
and (4) she “was treated less favorably because of [her] membership
in
that
protected
class
than
were
other
similarly
situated
employees who were not members of the protected class, under nearly
6
Prater cites to some cases that list the elements for a
disparate treatment claim under Title VII instead of Section
1983, but the different statutory citation is irrelevant.
“Section 1983 and [T]itle VII are parallel causes of action[,]”
and “the inquiry into intentional discrimination is essentially
the same for individual actions brought under sections 1981 and
1983, and Title VII.” Lauderdale v. Tex. Dep’t of Criminal
Justice, Inst’l Div., 512 F.3d 157, 166 (5th Cir. 2007). And when
a claim is brought under either Section 1983 or Title VII, “the
elements of the substantive cause of action are the same under
both statutes.” Rivera v. City of Wichita Falls, 665 F.2d 531,
534 n.4 (5th Cir. 1982), abrogation on other grounds recognized
by Carroll v. Gen. Accident Ins. Co. of Am., 891 F.2d 1174, 1176
(5th Cir. 1990).
9
identical circumstances.”7 Lee v. Kansas City So. Ry. Co., 574 F.3d
253, 259 (5th Cir. 2009). The Court assumes arguendo that Prater
has made out a prima facie disparate treatment claim in her amended
complaint.
Prater, however, concedes that her equal protection claim is
subject to heightened pleading. Mem. Opp. p. 9. In her amended
complaint, Prater added one additional allegation relevant to this
claim:
The defendants have deliberately and intentionally paid
male Caucasian workers overtime when the Caucasian
workers have worked more than 40 hours a week and
intentionally and deliberately failed and refused to pay
plaintiff, a black worker, overtime pay when the
plaintiff has worked more than 40 hours a week.
Amended Compl. ¶37, ECF No. 40. The Court must determine whether
this new
allegation,
read
alongside
the
rest
of
the
amended
complaint, provides sufficient “factual detail and particularity”
and not mere conclusory allegations. See Anderson v. Pasadena
7
Prater asserts in her briefing that she “must plead that
(1) she is a member of a protected class, (2) she was treated
differently from others similarly situated, and (3) there was no
rational basis for the disparate treatment.” Mem. Opp. p. 9
(citing Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812,
824 (5th Cir. 2007)). But these elements are for an equal
protection claim under the “class of one” theory. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The United States
Supreme Court later held that the “class of one” theory “is
simply a poor fit in the public employment context” and
eliminated its application. Engquist v. Or. Dep’t of Agric., 553
U.S. 591, 604-05 (2008); see also, Chestang v. Alcorn Sate Univ.,
820 F. Supp. 2d 772, 780 (S.D. Miss. 2011) (holding that Engquist
eliminated “class of one” claims only in the context of public
employment). Because Prater was a public employee, she cannot use
the “class of one” theory.
10
Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). This new
allegation is insufficient to meet the heightened pleading standard
in this case. Because Prater has not alleged any specific conduct
by the Board Members, the Court finds she has not “assert[ed]
specific facts that, if true, would overcome the defense.” Fisher
v. Dallas Cnty., 299 F.R.D. 527, 532 (N.D. Tex. 2014) (citing Morin
v. Caire, 77 F.3d 116, 120 (5th Cir. 1996)). Therefore, the Court
will dismiss Prater’s Fourteenth Amendment claim against the Board
Members in their individual capacities.
C. No Additional Schultea Reply
In Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), the Fifth
Circuit created a two-step procedure for a plaintiff to meet the
heightened pleading requirement arising when a defendant asserts
the defense of qualified immunity.
First, the district court must insist that a plaintiff
suing a public official under § 1983 file a short and
plain statement of his complaint, a statement that rests
on more than conclusions alone. Second, the court may, in
its discretion, insist that a plaintiff file a reply
tailored to an answer pleading the defense of qualified
immunity. 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 1433-34. “Schultea makes it clear that this two-step
process . . . is the preferred procedure preceding consideration of
a motion to dismiss on grounds of qualified immunity.” Todd v.
Hawk, 72 F.3d 443, 446 (5th Cir. 1995). In this case, Prater has
“been apprised of the insufficiency of [her] conclusory allegations
11
. . . and [has] been afforded an opportunity to plead facts that
would overcome the bar of [qualified] immunity.” Morrison v. City
of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985). The Court
previously ordered Prater to submit a Schultea reply, and after
failing to timely submit one, Prater requested leave to amend her
complaint instead, which the Court allowed. The Court “can assume,
therefore, that the specific allegations of the amended complaint
constitute [Prater’s] best case for demonstrating that [the Board
Members] acted outside the scope of [qualified] immunity.” Id.; see
also Campbell v. Harris, No. 3:96cv3220L, 2000 WL 349746, at *4 n.2
(N.D. Tex. Mar. 31, 2000) (citing Morrison and finding that the
plaintiff had pled his best case and was not entitled to plead
further). Although Prater has not submitted sufficient facts to
overcome the Board Members’ qualified immunity, the Court will not
order an additional Schultea reply.
III. Conclusion
The Court will grant the Board Members’ motion to dismiss
Prater’s
federal
constitutional
claims
against
them
in
their
individual capacities. Prater has failed to meet the heightened
pleading standard in both her First Amendment retaliation claim and
her Fourteenth Amendment disparate treatment claim by failing to
allege any specific conduct on the part of the Board Members. The
Court will not order additional pleading from Prater related to the
defense of qualified immunity because an opportunity for further
12
factual development has already been afforded her.
Prater’s other claims that were not subject to this motion, of
course, survive. Her constitutional claims against the County and
the Board Members in their official capacities survive this motion,
as well as her claims related to unpaid overtime.
IV. Order
IT IS HEREBY ORDERED that the defendants’ Motion to Dismiss
Federal Constitutional Claims against Them in Their Individual
Capacities Based upon Qualified Immunity is GRANTED.
SO ORDERED this the 18th day of December 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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