Opinion
Civil Action No. 1:99CV262-P-A,
September 14, 2000,
MEMORANDUM OPINION
This cause is before the Court on motions to dismiss filed by the defendants [14-1] and [17-1]. The Court, having reviewed the motions and supporting materials, the authorities cited, and being otherwise fully advised in the premises, finds as follows, to-wit:
FACTUAL BACKGROUND
This is yet another in a series of cases filed by Harry W. Vinson in which he protests alleged constitutional violations inflicted upon him as a result of certain chancery proceedings which took place in the Chancery Court of Lee County involving Mr. Vinson and his parents. This particular suit complains of instances in which Harold Ray Presley, Lee County Sheriff, intervened at the request of Rita Vinson and required Harry Vinson to leave the premises on various occasions when Vinson attempted to visit his parents. Vinson also complains that his complaints about Presley to the Lee County Board of Supervisors went unheeded.
Rita Vinson is Harry W. Vinson's sister; she lives with the elderly Vinson couple.
Vinson's Complaint names Harold Ray Presley, the individual members of the Lee County Board of Supervisors, the Board's attorney Bill Beasley, Beasley's law firm, Phelps Dunbar, LLP, as well as insurance companies acting as surety for Sheriff Presley and the Board of Supervisors. Vinson seeks recovery against said parties pursuant to 42 U.S.C. § 1983 for alleged violations of his First and Fourteenth Amendment rights under the Constitution.
The defendants have filed motions to dismiss, alleging various grounds for dismissal, including failure to state a claim under F.R.C.P. 12(b)(6). The motions have been fully briefed and the Court is ready to rule.
LEGAL ANALYSIS
A. Western Surety Insurance Company's Motion to Dismiss
Western Surety has been named as a defendant in this case in its capacity as bond holder for Sheriff Presley. It seeks dismissal pursuant to Federal Rule of Civil Procedure 4(m) based on the plaintiff's failure to effect service of process within 120 days of the filing of the Complaint. Vinson filed his Complaint on August 19, 1999. Exhibit B, attached to Western Surety's Motion to Dismiss, reflects service of a summons and Complaint for Western Surety on the Mississippi Department of Insurance on January 5, 2000 (129 days after the filing of the Complaint). Because the plaintiff failed to serve the Complaint in accordance with the requirements of Rule 4(m), Western Surety is entitled to dismissal as a party defendant.
Rule 4(m) provides that such dismissal be without prejudice. However, as the defendant is otherwise entitled to dismissal on additional grounds as set forth supra, the dismissal will be with prejudice.
B. Failure to State a Claim/Rule 12(b)(6) Dismissal
Dismissal pursuant to Rule 12(b)(6) is appropriate if a party fails to state a claim under which relief can be granted. The allegation of the complaint must be accepted as true when the Court considers whether the Plaintiffs have stated a cause of action. See Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991); cert. denied, 60 U.S.L.W. 3057, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991). Only the complaint and allegations contained therein are to be considered in reaching a decision on a defendant Rule 12(b)(6) motion to dismiss. The complaint should not be dismissed unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of his or her claims which would entitle him or her to relief.
1. Claims Against Defendants Presley, Davis, Duke, Ivy, Kennedy and Swann
Plaintiff's Complaint purports to set forth a claim against defendants predicated on violations of his right to religious freedom pursuant to the First Amendment, as well as his right to equal protection under the law as guaranteed by the Fourteenth Amendment. A careful reading of the facts alleged in plaintiff's Complaint reveals no viable basis for such claims. It is well established that allegations of constitutional violations must be pleaded with factual detail and particularity, not merely by conclusory allegations. Jackson v. Widnall, 99 F.3d 710 (5th Cir. 1996). A mere assertion that a defendant, or defendants, violated a plaintiff's rights under § 1983 is inadequate as a matter of law. Dismukes v. Hackathorn, 802 F. Supp. 1442 (N.D.Miss. 1992). Plaintiff's allegations in the instant case are no more than sweeping, conclusory allegations of constitutional deprivations. Nothing in the facts plead by plaintiff reveals a violation of plaintiff's religious rights, nor does it indicate that the individual defendants took any action against him based on invidious, class-based discrimination. Accordingly, Sheriff Presley and the members of the Lee County Board of Supervisors-defendants Billy S. Davis, Charles R. Duke, Tommy Lee Ivy, Thomas Kennedy and Martha Swann are entitled to dismissal in accordance with the provisions of F.R.C.P. 12(b)(6).
2. Claims Against Attorney Bill Beasley and Phelps Dunbar, LLP
Plaintiff also purports to state a claim against Board of Supervisors' attorney Bill Beasley and his law firm, Phelps Dunbar, LLP based on a theory of privity of contract. The law recognizes no such theory of recovery in § 1983 cases. Instead, liability is imposed solely on state actors or those acting under close of state law. It is well settled that attorneys who merely provide legal advise and counsel to their clients are not "state actors" so as to impose potential liability under § 1983. See Catz v. Chalker, 142 F.3d 279 (6th Cir. 1998); Bilal v. Kaplan, 904 F.2d 15 (8th Cir. 1990). Defendants Beasley and Phelps Dunbar are thus entitled to dismissal of the claims against them.
3. Derivative Claims Against Insurance Companies
In addition to suing these particular defendants, plaintiff also joined as defendants those insurance companies acting as surety for Sheriff Presley and the Board of Supervisor, Western Surety Insurance Company and Coregis Insurance Company, respectively. The plaintiff's claims against bond sureties Western Surety and Coregis arise solely from the actions of the public officials for which they act as surety, i.e., their alleged liability is merely derivative of that of their insureds. As the plaintiff has failed to state an actionable claim against defendants Presley, Davis, Duke, Ivy, Kennedy and Swann, so too has he failed to state a claim against the defendant sureties. Western Surety and Coregis are entitled to dismissal of the claims against them.
CONCLUSION
Based on the foregoing opinion, defendants' motions to dismiss are well-taken and should be granted. An order will issue accordingly.