Franklin et al v. North Central Narcotics Task Force et al

Filing 40

ORDER granting 32 Motion to require plaintiffs to file a Rule 7(a) reply; denying 5 Motion to Remand; granting 10 Motion for partial dismissal Signed by Honorable David C. Bramlette, III on 7/7/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ROBERT FRANKLIN AND SHANNON O’QUINN FRANKLIN,
EACH INDIVIDUALLY AND EACH ON BEHALF OF
LARRY D. MAYS, A MINOR CHILD
VS.

PLAINTIFFS

CIVIL ACTION NO. 5:15-cv-120(DCB)(MTP)

NORTH CENTRAL NARCOTICS TASK FORCE;
CLAIBORNE COUNTY, MISSISSIPPI; MARIO GRADY,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES;
CORY WEATHERSPOON, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES; SCOTT STEWART, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; WILLIAM NEVELS, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITIES; THE CLAIBORNE
COUNTY SHERIFF’S DEPARTMENT AND MICHAEL WELLS,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES; AND
DOE DEFENDANTS 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiffs’ motion to
remand (docket entry 5); on a motion for partial dismissal by
defendants
official

Claiborne

and

County,

individual

Mississippi;

capacities;

Cory

Mario

Grady

in

his

Weatherspoon

in

his

official and individual capacities; and Michael Wells in his
official and individual capacities (docket entry 10); and on motion
by defendants Grady, Weatherspoon and Wells, in their individual
capacities, to require the plaintiffs to file a motion to require
plaintiff to file a Rule 7(a) reply (docket entry 32).

Having

carefully considered the parties’ briefs and the applicable law,
the Court finds as follows:
On or about June 10, 2015, the plaintiffs filed a civil action

in the Circuit Court of Claiborne County, Mississippi against the
defendants named herein, asserting claims and seeking recovery of
damages for injuries sustained at the hands of defendants at the
plaintiffs’ home in Claiborne County, Mississippi.
timely removed the action to federal court.
remand,

the

plaintiffs

contend

that

The defendants

In their motion to

“concurrent

jurisdiction

enables the state court to apply the federal law; removing the
action to the federal court encroaches on the state court’s
jurisdiction because there is no necessity for it to be held
there.”

Motion to Remand, ¶ 4.

In response, the defendants state

that this Court has original jurisdiction pursuant to 28 U.S.C. §
1331 because the plaintiffs assert questions of federal law.
Specifically, the plaintiffs bring 42 U.S.C. § 1983 claims under
the

Fourth

and

Constitution.

Fourteenth

Amendments

of

the

United

States

The Court finds that it has original jurisdiction

over the plaintiffs’ claims and that removal is proper under §
1441(a).

The plaintiffs’ motion to remand shall therefore be

denied.
Defendants Grady, Weatherspoon and Wells (joined by defendant
William Nevels)1, in their official and individual capacities, move
for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(6)(failure to
state a claim upon which relief can be granted).

1

Apparently, there has been no service of process on
defendant Scott Stewart by the plaintiffs.
2

In their Complaint, the plaintiffs allege that on March 20,
2014, plaintiff Larry D. Mays was physically accosted by members of
the North Central Narcotics Task Force2 and the Claiborne County
Sheriff’s Department at his home in Port Gibson, Mississippi.
Complaint, ¶ 15. The plaintiffs allege that “individuals including
Mario Grady, Cory Weatherspoon, Scott Stewart, William Nevels, and
Michael Wells came into [plaintiffs’] home, snatched Larry D. Mays
out of his bed, threw him to the ground, put their feet/knees on
his back and held him at gunpoint.”

Id.

It is further alleged

that Mays suffered a seizure immediately after the Task Force left
his home, and that he has suffered seizures “at an increased rate
since the time of this incident.”
include

Mays’

parents,

who

Id. at ¶ 16.

allege

that

the

The plaintiffs
“emotional

and

psychological trauma caused by the injuries sustained by Larry D.
Mays directly and proximately affects all of the Plaintiffs.”

Id.

at ¶ 21.
The plaintiffs allege the following causes of action pursuant
to 42 U.S.C. § 1983 and under the Fourth and Fourteenth Amendments:
unreasonable search and seizure, deprivation of life without due

2

The North Central Narcotics Task Force is named as a party
defendant in the plaintiffs’ Complaint. However, the Task Force
is not an entity pursuant to Mississippi law, and was only formed
through an interlocal agreement between various counties and
cities. Because it is not a legal entity, and is no longer in
existence, its joinder is neither possible nor necessary. See
Harris v. Jackson County, Mississippi, 2015 WL 1427412, *1 (March
27, 2015).
3

process, and deprivation of liberty without due process (Complaint,
¶ 25); failure by the defendants to implement appropriate policies,
customs and practices concerning use of excessive force, provision
of adequate medical care, and provisions for individuals with
special needs; willful ignorance as to complaints about processes
and procedures utilized by the defendants in investigations, and
lack of proper care (Complaint, ¶ 30); and deliberate indifference
to the plaintiffs’ rights to be free from unreasonable seizures
(Complaint, ¶ 31).

In addition, the Complaint alleges reckless

disregard (¶¶ 33-36), negligence and negligence per se (¶¶ 37-43),
gross

negligence

(¶¶

44-45),

negligent

hiring,

retention,

supervision and control (¶¶ 46-47), res ipsa loquitur (¶¶ 48-53),
respondeat

superior

(¶¶

54-55),

agency

(¶¶

56-57),

negligent

infliction of emotional distress (¶¶ 58-62), breach of a nondelegable fiduciary duty (¶¶ 63-64), the common law tort of outrage
(¶¶ 65-67), negligent failure to discipline or take necessary
corrective action (¶¶ 68-72), civil conspiracy (¶¶ 73-75), and
abuse of process (¶¶ 76-79).
In order to survive a motion to dismiss under Fed.R.Civ.P.
12(b)(6), a complaint must state a plausible claim for relief.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2008).

To state such

a claim, a plaintiff’s complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

4

555 (2007).

Rather, plaintiffs must allege facts sufficient to

“nudge ... their claims across the line from conceivable to
plausible.

Id. at 570.

Under this standard, “the tenet that a

court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions” and “[d]oes not
unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.”

Iqbal, 129 S.Ct. at 1949-50.

If the

allegations of a complaint do not state plausible claims supported
by specific facts, dismissal is proper.
Pursuant to Fed.R.Civ.P. 12(b)(6), a defendant is entitled to
have a case filed against it dismissed if the plaintiff “fail[s] to
state a claim upon which relief can be granted.”

A dismissal

pursuant to Rule 12(b)(6) is “appropriate when the plaintiff has
not alleged ‘enough facts to state a claim to relief that is
plausible on its face’ and has failed to ‘raise a right to relief
above the speculative level.’”

True v. Robles, 571 F.3d 412 (5th

Cir. 2009)(quoting Twombly, 550 U.S. at 555, 570).

Basic to this

premise is the notion that “[t]o 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.’”
Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570).

A

claim is deemed to be plausible on its face if the “plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”

5

Id. (quoting Twombly, 550 U.S. at 556). A plaintiff is required to
plead more than the mere possibility that the defendant acted
unlawfully in order to survive a motion to dismiss.

Id.

Instead,

a plaintiff must plead facts that are sufficient enough to state a
plausible claim for relief in order to survive a motion to dismiss.
Id. at 1949.
Rule 12(b)(6) serves the tantamount purpose of “allowing the
court to eliminate actions that are fatally flawed in their legal
premises and destined to fail, and thus to spare litigants the
burdens of unnecessary pretrial and trial activity.”

Advanced

Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157,
1160 (Fed. Cir. 1993)(citing Neitzke v. Williams, 490 U.S. 319,
326-27 (1989)).
In Mississippi, every state law tort claim asserted against a
governmental entity is guided by the Mississippi Tort Claims Act
(“MTCA”). See City of Jackson v. Sutton, 797 So.2d 977, 980 (Miss.
2001); Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234,
1236 (Miss. 1999). In particular, the State of Mississippi and its
political subdivisions enjoy absolute sovereign immunity from suit
at law or in equity arising out of any wrongful or tortious conduct
of the governmental entity or its employees. Miss. Code Ann. § 1146-3.

The MTCA waives the sovereign immunity of governmental

entities only in certain circumstances - but retains immunity in
others - and provides the exclusive means t h r o u g h w h i c h a n

6

a c t i o n m a y b e b r o u g h t against a governmental entity as a
result of such waiver.

Id. at §§ 11-46-5, 11-46-7, 11-46-9; Wang

v. Tang, 828 So.2d 785, 791 (Miss. 2002).

The MTCA requires

plaintiffs to advance state-law tort claims against the employees
of

a

governmental

entity,

in

their

official,

representative

capacities:
An employee may be joined in an action against a
governmental entity in a representative capacity if the
act or omission complained of is one for which the
governmental entity may be liable, but no employee shall
be held personally liable for acts or omissions occurring
within the course and scope of the employee’s duties.
Miss. Code Ann. § 11-46-7(2).

When a suit is properly maintained

under the MTCA, it proceeds like any other action, id. at § 11-4611(1), and is subject to the same procedural laws and rules as any
other action.
Under the municipal liability doctrine, defendant Claiborne
County cannot be held vicariously liable for the actions of its
individual defendant employees with respect to § 1983 claims.

The

theory of respondeat superior does not apply in § 1983 actions
against municipalities and other political subdivisions such as
counties.

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694

(1978); Worsham v. City of Pasadena, 881 F.2d 1336, 1339 (5th Cir.
1989).

Like municipalities, counties cannot be sued under § 1983

unless

a

plaintiff

sufficiently

demonstrates

injury

from

an

official policy or custom, as distinguished from mere tortious
conduct.

See, e.g., Beattie v. Madison Cnty. Sch. Dist., 254 F.3d
7

595, 600 n.2 (5th Cir. 2001). In order to properly assert municipal
liability

under

§

1983,

the

plaintiffs

must

allege

“(1)

a

policymaker, (2) an official policy, and (3) a violation of
constitutional
custom.”

rights

whose

‘moving

force’

is

the

policy

or

Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849, 867-68

(5th Cir. 2012).
In this case, the plaintiffs’ claims under § 1983 are legally
insufficient

because

they

offer

only

vague

and

conclusory

allegations.

“Only upon a demonstration of a policy or custom to

violate the constitution, which is not to be confused with proof of
policies supporting tortious conduct, can the municipality be held
liable under section 1983.” Brown v. City of Hazlehurst, 741 So.2d
975, 981 (Miss. App. 1999).

The Brown court further emphasized

that a policy or custom must be identified with specificity:
[A] plaintiff must allege that the custom or policy
served as the moving force behind the constitutional
violation, or that her injuries resulted from the
execution of the official policy or custom.
The
description of a policy or custom and its relationship to
the underlying constitutional violation, moreover, cannot
be conclusory; it must contain specific facts.
Id. at 981.
Absent injuries caused by an illegal custom or policy, a
governmental entity is immune from liability.

Williams v. Lee

Cnty. Sheriff’s Dept., 744 So.2d 286, 298-99 (Miss. 1999).

To

qualify as a custom or policy, the practice must have occurred for
so long, or so frequently, that the course of conduct warrants the

8

attribution

to

the

governing

body

of

knowledge

that

objectionable conduct is the expected, accepted practice.

the

Webster

v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984).

The

plaintiffs have not set forth specific facts that demonstrate any
long-standing official custom or policy created by the County that
violates the constitution.

The defendants’ motion to dismiss is

therefore well-taken as to the plaintiffs’ § 1983 claims against
Claiborne County.
The Court now turns to the plaintiffs’ state law claims.

1. Negligent Hiring and Related Allegations
The

plaintiffs

allege

“negligent

hiring,

retention,

supervision, and/or control,” Complaint, ¶ 47, and separately
allege

“negligent

...

failure

necessary corrective action.”

to

discipline

Id., ¶ 72.

or

to

take

...

These separate counts

are duplicative and shall be addressed jointly.

See Jordan v.

Premier Entertainment Biloxi, LLC, 2014 WL 5773762, *5 (S.D. Miss.
Nov. 6, 2014).

The plaintiffs’ claim is barred by immunity

provisions in the MTCA and/or failure to plead with particularity.
The MTCA provides that a governmental entity shall not be liable
for, inter alia, any claim “[a]rising out of the exercise of
discretion in determining ... the hiring of personnel....”
Code Ann. § 11-46-9(1)(g).

Miss.

The plaintiffs are precluded from

holding the defendants liable for discretionary hiring decisions,

9

and this claim must be dismissed.
In addition, with regard to the plaintiffs’ failure to hire
claim, Miss. Code Ann. § 11-46-9(1)(d) provides that a governmental
entity shall not be liable for any claim “[b]ased upon the exercise
or

performance

or

the

failure

to

exercise

or

perform

a

discretionary function or duty on the part of a governmental entity
or employee thereof whether or not the discretion is abused.”

To

determine the applicability of this exemption, the court examines
“(1)

whether

judgment,

the

and

supervision

if

activity
so;

involves

alternatives.”

(2)

involved
whether

social,

an
the

economic

element
choice
or

of

or

choice

or

judgment

in

political

policy

City of Jackson v. Powell, 917 So.2d 59, 73 (Miss.

2005)(internal quotations and citations omitted).

Specifically,

the Powell Court stated:
There is no doubt that the choice to employ and the
manner of supervision of police officers does affect
public policy, and the make-up of the police force
inherently affects the social policy of a city.
The
manner in which the police department supervises,
disciplines and regulates its police officers is a
discretionary function of the government and thus the
city is immune to suit under § 11-46-9(1)(d).
Id. at 74.
Those defendants who were required to make decisions regarding
the employment, supervision, assignments, training, and retention
of officers were undoubtedly exercising a discretionary function
that affects public and social policy.

The Mississippi Supreme

Court has clearly held that “[a] duty is discretionary if it
10

requires [an] official to use her own judgment and discretion in
the performance thereof.” L.W. v. McComb Sep. Mun. Sch. Dist., 754
So.2d 1136, 1141 (Miss. 1999)(citing Pearl Pub. Sch. Dist. v.
Groner, 784 So.2d 911, 914 (Miss. 2001).

Thus, discretionary

immunity is appropriate, and the plaintiffs’ negligent hiring and
related

claims

must

be

dismissed.

As

further

grounds

for

dismissal, the plaintiffs’ claims are too ambiguous, failing to
name or describe those defendants who allegedly failed to train or
supervise, and failing to articulate facts giving rise to a claim
for prima facie negligence, i.e. they have not alleged any facts to
show duty, breach of duty, causation, or negligence.

See Paz v.

Brush Engineered Materials, Inc., 949 So.2d 1, 3 (Miss. 2007).

2. Breach of Fiduciary Duty
The plaintiffs allege, under their “Breach of Non-Delegable
Fiduciary Duty” count:
The failure and/or refusal of the Defendants (including
agents, employees, and/or independent contractors of the
aforementioned in their official capacities as well as
other unknown entities, business, parent companies,
corporations, and etc.) to prevent the injuries sustained
by the Plaintiffs, at a time when the same was absolutely
essential, constituted a breach of a non-delegable and/or
fiduciary duty owed to the Plaintiffs and other persons
similar[ly] situated.
Complaint, ¶ 64.

The plaintiffs fail to identify any duty owed

them by the defendants, and fail to specify which defendants owed
them the unspecified duty. Mississippi law is well-settled that in

11

order

to

establish

a

claim

for

breach

of

plaintiffs must first establish a duty.

fiduciary

duty,

Mabus v. St. James

Episcopal Church (Mabus I), 884 So.2d 747, 758 (Miss. 2004); Mabus
v. St. James Episcopal Church (Mabus II), 13 So.3d 260 (Miss.
2009).

The plaintiffs must also prove the fiduciary duty by clear

and convincing evidence. AmSouth Bank v. Gupta, 838 So.2d 205, 216
(Miss. 2002).

Inasmuch as the plaintiffs have failed to plead a

fiduciary relationship, their claim must be dismissed.

3. Common Law Tort of Outrage
The plaintiffs claim for “the common law tort of outrage”
(Complaint, ¶¶ 65-67) is simply a claim for intentional infliction
of emotional distress.

See Jones v. Jackson State Univ., 2008 WL

682411, *5 (S.D. Miss. March 7, 2008); Bombardier Capital, Inc. v.
Royer Homes of Mississippi, Inc., 2006 WL 1328907, *3 n.2 (S.D.
Miss. May 15, 2006).

The alleged events giving rise to this claim

occurred on March 20, 2014, and the plaintiffs’ Complaint was filed
on

June

1,

2015.

Accordingly,

this

claim

Mississippi’s one-year statute of limitations.

is

barred

by

Jones v. Flour

Daniel Serv. Corp., 32 So.3d 417, 422 (Miss. 2010).

4. Civil Conspiracy
The

plaintiffs

allege

a

state

law

claim

for

“civil

conspiracy,” claiming that the defendants conspired “to commit and

12

cover up the wrongs complained of herein.”

Complaint, ¶¶ 74-75.

The Mississippi Supreme Court has stated that a civil conspiracy is
an agreement among “a combination of persons for the purpose of
accomplishing an unlawful purpose or a lawful purpose unlawfully.”
Shaw v. Burchfield, 481 So.2d 247, 255 (Miss. 1985), citing
Mississippi Power & Light Co. v. Coldwater, 106 So.2d 375, 381
(1958); see also Ryals v. Pigott, 580 So.2d 1140, 1156 (Miss.
1990).

Civil conspiracy resulting in damage may give rise to a

right of recovery.

Baily v. Richards, 111 So.2d 402, 407-08

(1959).
The elements of a civil conspiracy are: (1) two or more
persons or corporations; (2) an object to be accomplished; a
meeting of the minds on the object or course of action; (4) one or
more unlawful acts; and (5) damages as the proximate result.
Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786
(Miss. 2004). The plaintiffs fail to name any co-conspirators, and
fail to allege facts to support the remaining elements of a civil
conspiracy.

This claim must therefore be dismissed.

5. Abuse of Process
The Mississippi Supreme Court has defined the tort of abuse of
process:
The action of abuse of process consists in the misuse or
misapplication of a legal process to accomplish some
purpose not warranted or commanded by the writ. It is
the malicious perversion of a regularly issued civil or
13

criminal process, for a purpose and to obtain a result
not lawfully warranted or properly attainable thereby,
and for which perversion an action will lie to recover
the pecuniary loss sustained .... This Court has stated
that the crucial element of this tort is the intent to
abuse the privileges of the legal system.
Ayles ex rel. Allen v. Allen, 907 So.2d 300, 303 (Miss. 2005); see
also Coleman v. Smith, 914 So.2d 807, 812 (Miss. App. 2005).

The

Mississippi Supreme Court has long classified this cause of action
as “malicious.” State for Use and Benefit of Foster v. Turner, 319
So.2d 233, 236 (Miss. 1975); Moon v. Condere Corp., 690 So.2d 1191,
1197 (Miss. 1997).
Since the plaintiffs allege that the underlying events took
place on March 20, 2014, and their complaint was filed on June 1,
2015, this claim is barred by the statute of limitations and must
be dismissed.

6. Negligent Infliction of Emotional Distress
Under Mississippi law, the plaintiffs cannot recover emotional
distress damages for merely negligent conduct absent showing some
physical injury.

“There can be no recovery for mental pain and

suffering from the mere negligent act of another unaccompanied by
physical or bodily injury.”

Franklin Collection Servs., Inc. v.

Kyle, 955 So.2d 284, 290 (Miss. 2007)(quoting Sears, Roebuck & Co.
v. Devers, 405 So.2d 898, 902 (Miss. 1981).

The only plaintiff

alleging negligence accompanied by physical or bodily injury is
Larry D. Mays.

Therefore, plaintiffs Robert Franklin and Shannon
14

Franklin’s claims must be dismissed, and only plaintiff Mays’ claim
for negligent infliction of emotional distress survives the motion
to dismiss.

7. Negligence Per Se
“Negligence per se is founded on the violation of a statutory
standard, usually a penal one.”

Moore v. K & J Enter., 856 So.2d

621, 624 (Miss. App. 2003).

To prevail on such a claim, a

“plaintiff must show that: (1) he is a member of the class sought
to be protected under the statute; (2) that his injuries were of a
type sought to be avoided by the statute; and (3) that the
violation of the statute proximately caused or contributed to his
injuries.”
App. 1998).

Id., citing Brennan v. Webb, 729 So.2d 244, 249 (Miss.
The plaintiffs’ claim for negligence per se fails as

a matter of law because they have not identified a statute or
regulation that was allegedly violated; therefore, there is no
basis for liability for negligence per se and this claim must be
dismissed.

8. Damages
The plaintiffs’ Complaint also includes a specific demand for
punitive

damages,

prejudgment

interest,

and

attorney’s

fees

(Complaint, ¶¶ 84, 86), none of which are allowed under the MTCA.
Miss. Code Ann. § 11-46-15(2).

Therefore, the plaintiffs are not

15

entitled to punitive damages, prejudgement interest or attorney’s
fees.

9. Res Ipsa Loquitur, Respondeat Superior, Agency, and Reckless
Disregard
Several of the plaintiffs’ purported causes of action do not
exist under Mississippi law, but are instead theories or elements
potentially related to other counts in the Complaint.

To the

extent that the plaintiffs offer these as separate claims, they
shall be dismissed.

Defendants Mario Grady, Michael Wells, and Cory Weatherspoon,
in their individual capacities, also move to require the plaintiffs
to file a Rule 7(a) reply pursuant to Schultea v. Wood, 47 F.3d
1427 (5th Cir. 1995)(en banc), and for a stay of discovery.
The plaintiffs allege constitutional violations against the
individual defendants pursuant to 18 U.S.C. § 1983. The defendants
plead qualified immunity as a defense.

Because qualified immunity

aims to limit officials’ involvement in discovery, the Fifth
Circuit has repeatedly held that a plaintiff suing a public
employee

in

his

individual

pleading requirements.

capacity

must

satisfy

heightened

Elliott v. Perez, 751 F.2d 1472 (5th Cir.

1985)(abrogated on other grounds by Leatherman v. Tarrant County

16

Narcotics

Intelligence

and

Coordination

Unit,

507

U.S.

163

(1993)).3
When an official pleads qualified immunity as a defense, the
district court may require the plaintiff to reply to that defense
in detail, using the reply procedure outlined in Rule 7(a) of the
federal rules.

Schultea, 47 F.3d at 1433.

“By definition, the

reply must be tailored to the assertion of qualified immunity and
fairly engage its allegations.”

Id.

The Court finds that in this case greater detail is necessary
to perform the qualified immunity analysis.

The plaintiffs have

not identified the specific constitutional violations allegedly
committed by each individual defendant, nor explained which of the
plaintiffs suffered the particular violations asserted in the
Complaint.

In

addition,

the

Court

finds

that,

pending

the

plaintiffs’ filing of such a reply and the resolution of qualified
immunity issues remaining after the reply is filed, discovery in
this case should be stayed.

The Schultea Court emphasized that a

district court “need not allow any discovery unless it finds that
plaintiff has supported his claim with sufficient precision and
factual specificity to raise a genuine issue as to the illegality
of defendant’s conduct at the time of the alleged acts.”

3

47 F.3d

The Fifth Circuit explicitly confirmed in Schultea that
the heightened pleading standard articulated in Elliott survived
the Supreme Court’s holding in Leatherman. 47 F.3d at 1430.
17

at 1434.
therefore

The plaintiffs here have not done so.
be

ordered

to

file

a

Rule

7(a)

reply

They shall
pursuant

to

Schultea, and discovery shall be stayed pending resolution of the
qualified immunity issues remaining after the reply is filed.
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs’ motion to remand
(docket entry 5) is DENIED;
FURTHER

ORDERED

that

the

defendants’

motion

for

partial

dismissal (docket entry 10) is GRANTED as set forth hereinabove;
FURTHER ORDERED that the defendants’ motion to require the
plaintiffs to file a Rule 7(a) reply (docket entry 32) is GRANTED;
FURTHER

ORDERED

that

discovery

shall

be

stayed

pending

resolution of the qualified immunity issues remaining after the
reply is filed.
SO ORDERED, this the 7th day of July, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

18