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

Filing 58

ORDER granting 42 Motion seeking Relief from Judgment, which the Court construes as a Motion to Amend the Complaint Signed by Honorable David C. Bramlette, III on 11/17/2016 (EB)

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

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

ORDER AND OPINION
This cause is before the Court on the plaintiffs’ Motion
Seeking Relief from Judgment Pursuant to Rule 60(b) (docket entry
42).

Having

carefully

considered

the

motion,

response,

and

applicable law, and being otherwise fully informed in the premises,
the Court finds as follows:
I. Facts and Procedural History
On or about March 20, 2014, members of the Central Narcotics
Task Force and Claiborne County Sheriff’s Department allegedly
entered the plaintiffs’ home, removed the plaintiffs’ special
needs child from his bed and forcefully detained him without
provocation or justification. Compl. ¶¶ 15-17.

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Plaintiffs Robert

Franklin and Shannon O’Quinn Franklin, individually and on behalf
of their son Larry D. Mays, filed their Complaint in the Circuit
Court of Claiborne County, alleging a number of claims arising
under state and federal law.
Defendants timely removed the action to federal court, and
motions were filed by both parties.

On December 17, 2015, the

plaintiffs filed a motion to remand the case to state court.
Shortly thereafter, defendants Claiborne County, Mario Grady, Cory
Weatherspoon, and Michael Wells moved for dismissal pursuant to
Rule 12(b)(6).

Defendants Mario Grady, Michael Wells, and Cory

Weatherspoon, in their individual capacities, also filed a motion
seeking a Rule 7(a) reply from the plaintiffs regarding defendants’
qualified immunity defense.
The Court addressed all three motions in a single Memorandum
Opinion and Order (“the Order”) (docket entry 40) filed on July 7,
2016.

In its Order, the Court denied the plaintiffs’ motion to

remand and granted the defendants’ motion for a Rule 7(a) reply.
The Court also granted a partial dismissal of the Complaint
pursuant to Rule 12(b)(6). Plaintiffs’ Section 1983 claims against
defendant Claiborne County were among the claims dismissed.1

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 In addition to the Section 1983 claims against the County, Plaintiffs’ claims
of Negligent Hiring, Breach of Fiduciary Duty, Outrage/Intentional Infliction
of Emotional Distress, Civil Conspiracy, Abuse of Process, Negligent Infliction
of Emotional Distress as to Robert and Shannon Franklin, Negligence Per Se, and
claims for punitive damages, prejudgment interest, and attorney’s fees were

2

With regard to the Section 1983 claims against Claiborne
County, the Court found that Plaintiffs failed to allege sufficient
facts demonstrating any long-standing, unconstitutional policy or
custom created by the County as required to assert municipal
liability under Section 1983. Order, p.9.

Finding that the

Complaint offered only vague and conclusory allegations, the Court
dismissed Plaintiffs’ claims as legally insufficient. Id. at 8.
Seeking relief from the Order, Plaintiffs’ now file their
Motion Seeking Relief from Judgment Pursuant to Federal Rule of
Civil Procedure 60(b).
II. Discussion
The majority of the plaintiffs’ motion is devoted to rehashing
allegations in the Complaint and arguing the merits of their
Section 1983 claims.

Aside from the plaintiffs’ assertion that

“manifest injustice will result” if they are unable to amend the
Complaint, the motion is void of any reference to the provisions
of Rule 60.

Plaintiffs’ Motion, p. 2.

In their Response,

Defendants argue that the plaintiffs’ motion fails to allege any
basis for relief under Rule 60(b) because no such basis exists.

dismissed. The Court also dismissed all legal theories insofar as they were
incorrectly pled as claims for relief (e.g. respondeat superior, res ipsa
loquitur, agency, reckless disregard). Following the Order, Plaintiffs’
remaining claims include: Section 1983 claims against the individual defendants;
negligence; gross negligence; and negligent infliction of emotional distress as
to plaintiff Larry D. Mays.

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The Court finds that Plaintiffs’ application of Rule 60 is
misplaced.

Under Rule 60(b), a district court has discretion to

relieve a party from a final judgment, order, or proceeding based
on:
(1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
. . . misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged . . .; or (6)
any other reason that justifies relief.

Fed. R. Civ. P. 60(b); see Edwards v. City of Houston, 78 F.3d
983, 995 (5th Cir. 1996).

Rule 60 seeks to strike a balance

between “the desire to preserve the finality of judgments and the
incessant command of the court’s conscience that justice be done
in light of all the facts.” Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 401 (5th Cir. 1981).

Rule 60 is limited, by its terms,

to the review of final judgments and orders; “interlocutory orders
and judgments are not within the provisions of 60(b), but are left
within the plenary power of the court that rendered them to afford
such relief as justice requires.” Zimzores v. Veterans Admin., 778
F.2d 264, 266 (5th Cir. 1985) (quoting 7 Moore’s Federal Practice
¶ 60.20 at 60-170 (2d ed. 1985)); see Johnson v. TCB Construction
Co., Inc., 2007 WL 37769, *1 (S.D. Miss. Jan. 4, 2007) (finding
that the court had continuing jurisdiction to alter an order

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adjudicating fewer than all of plaintiffs’ claims under Rule
54(b)); see also Century Products Co. v. Cosco, Inc., 2003 WL
251957, *5 (N.D. Tex. Jan. 31, 2003) (applying the less stringent
Rule 54(b) standard to the reconsideration of an interlocutory
order).
The Order from which the plaintiffs are seeking relief is
interlocutory in nature. See James by James v. Sadler, 909 F.2d
834, 836 (5th Cir. 1990) (an order granting partial dismissal based
on

plaintiff’s

failure

to

identify

a

municipal

policy

was

interlocutory and not subject to the limitations of Rule 60(b)).
The

Court,

in

its

Order,

dismissed

some,

but

not

all,

of

Plaintiffs’ claims against the named defendants, and following the
Order, a number of Plaintiffs’ claims remain pending.

Because the

plaintiffs’ motion is improperly brought pursuant to Rule 60, the
Court shall instead consider the motion as one for reconsideration
of an interlocutory ruling under Rule 54(b).
Regarding interlocutory orders, Rule 54(b) provides:
Any order . . . that adjudicates fewer than all claims
or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims
or parties and may be revised at any time before entry
of a judgment adjudicating all the claims and all the
parties' rights and liabilities.
Fed. R. Civ. P. 54(b).

The decision to set aside an interlocutory

order remains within the district court’s discretion. See McKay v.

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Novartis Pharmaceutical Corp., 751 F.3d 694, 701 (5th Cir. 2014);
Zimzores, 778 F.2d at 267; see also Livingston, 259 F.Supp.2d at
475 (“District Courts have considerable discretion in deciding
whether to grant a motion to reconsider an interlocutory order.”).
While the precise standard for reconsidering orders under Rule
54(b) remains unclear, “it is typically held to be less exacting
than would be a motion under Rule 59(e), which is in turn less
exacting than the standards enunciated in Rule 60(b).” Livingston
Downs Racing Ass’n, Inc. v. Jefferson Downs Corp., 259 F.Supp.2d.
471, 475 (M.D. La. 2002).

In reviewing the plaintiffs’ motion,

the Court looks to the reconsideration standard under Rule 59(e)
as a guidepost, while also recognizing that the policy in favor of
securing the finality of judgments underlying Rules 59 and 60 is
not implicated in this case. See James by James, 909 F.2d at 836.2
From the motion it appears that Plaintiffs’ challenge is
directed exclusively towards the Court’s dismissal of the Section
1983 claims against Claiborne County.

In their motion, Plaintiffs

claim that “manifest injustice will result if [they] are not
allowed to amend their complaint” to include more specific facts

2

 Courts have discretion to grant motions for reconsideration under Rule 59(e).
But Rule 59(e) motions constitute “extraordinary relief,” which is only
appropriate in three circumstances: “(1) an intervening change in the law; (2)
the availability of new evidence not available, or (3) the need to correct a
clear error of law or prevent manifest injustice.” Kennedy v. Jefferson Co.
Hospital, 2016 WL 6495595 (S.D. Miss. Nov. 2, 2016).

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regarding the County’s official policy or custom. Plaintiffs’
Motion, p.2.

Specifically, the plaintiffs seek to “fully flesh

out” specific facts surrounding the County’s use of “routine
excessive force [] against vulnerable adults and the disregard
shown for their medical conditions and need for additional care
and consideration.” Id.

Though much of the motion involves

improper and irrelevant arguments regarding the merits of their
pending claims, and though the motion is void of any formal
request, the Court surmises that Plaintiffs’ apparent desire to
amend their Section 1983 claims may be construed as a motion to
amend the Complaint.
When a district court dismisses a portion of the complaint
but does not terminate the action altogether, the plaintiff may
amend under Rule 15(a) with permission of the Court. Rosenzweig v.
Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003). “The court should
freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2); see James by James, 909 F.2d at 836 (the rule
requires a district judge “freely to permit amendments unless the
ends of justice require denial”). In determining whether to allow
plaintiffs to amend following a partial dismissal, the Court
considers factors such as “undue delay, bad faith, or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by [previously allowed amendments], undue prejudice

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to the opposing party, [and] futility of amendment.” Whitaker v.
City of Houston, Tex., 963 F.2d 831, 836 (5th Cir. 1992).

Absent

such factors, leave to amend should be freely given. Rosenzweig,
332 F.3d at 864.
Upon consideration of all relevant factors, the Court finds
that the plaintiffs are entitled to amend their Complaint to
include

specific

facts

regarding

Claiborne

unconstitutional custom or policy.

County’s

alleged

In the Order, the Court

dismissed the Section 1983 claims against defendant Claiborne
County based solely on Plaintiffs’ failure to set forth specific
facts demonstrating a long-standing, unconstitutional custom or
policy created by the County.

Indeed, the Court is unaware, based

on the Complaint and Motion, as to whether facts sufficient to
cure

Plaintiffs’

deficient

Section

1983

claims

exist;

nevertheless, the Court finds no reason to deny Plaintiffs the
opportunity to present the necessary facts through an amendment.
Plaintiffs’ motion was promptly filed within fourteen days after
entry of the Order, and because discovery is currently stayed in
the case, it is unlikely that allowing the amendment will cause
the defendants’ undue prejudice.

Insofar as Plaintiffs’ motion

seeks to amend the Complaint, the Court finds that the motion
should be granted.

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Within

fourteen

(14)

days

of

entry

of

this

Order,

the

plaintiffs are permitted to amend their Section 1983 claims against
Claiborne County to include specific facts demonstrating a longstanding

official

Constitution.

custom

or

policy

in

violation

of

the

The Court reaffirms all other rulings articulated

in its previous Order, including the dismissal of all other claims
identified therein.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion (docket entry
42) is GRANTED to the extent set forth herein.
SO ORDERED, this the 17th day of November, 2016.

/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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