Opinion
Civil Action No. 4:96cv21-D-B
March 21, 1997
MEMORANDUM OPINION
Presently before the court is the motion of the defendants to dismiss, or in the alternative for the entry of summary judgment on their behalf. Finding that the motion is partially well taken, the court shall grant it in part and deny it in part.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted. Further, in the context of a motion to dismiss, this court must accept as true all well-pled allegations of fact by the plaintiff. Thomas v. Smith. 897 F.2d 154, 156 (5th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 100-02, 2 L.Ed.2d 80 (1957))
In essence, the heart of this case arises out of an alleged police assault upon the plaintiff and the subsequent failure of police officials to take remedial action. Much of the factual predicate of this matter is unclear to the court, but the crux of the matter appears to be discernable. On or about January 25, 1993, Charles Coleman was walking down a street within the city limits of Greenville when he came upon defendants Rance and Blackmon. These two Greenville police officers were "ridiculing a drunken woman." Plaintiff's Amended Complaint, ¶ 12.
12. The plaintiff inquired about the problem. He was told by both Officer Rance and Lieutenant Blackmon to shut up or else he would be arrested. The plaintiff, Charles Coleman responded that they had no authority to arrest him and proceeded to walk down the street. Officer Rance became irate and proceeded to arrest the plaintiff. The plaintiff in fear of his life and liberty ran onto 421 Maple Street where his sister lived. It was there that he surrendered to Officer Rance. Despite the plaintiff's surrender, Officer Rance repeatedly assaulted and beat the plaintiff, Charles Coleman, with his baton. Officer Peacock violently handcuffed the plaintiff and placed his foot into his back while Officer Rance continued to beat the plaintiff unmercifully. The excessiveness with which Officer Rance beat the plaintiff extended to the point where Officer Rance injured a pregnant bystander. Subsequently, another officer arrived on the scene and ordered the officers to remove the handcuffs from the plaintiff and called for the paramedics.
Amended Complaint, ¶ 12. After his arrest, the plaintiff was prosecuted for various misdemeanor charges, but was not convicted of any of them. The plaintiff instituted this action by filing his complaint with this court on January 16, 1996.
Discussion
Summary Judgment Standard
By order dated June 12, 1996, United States Magistrate Judge Eugene M. Bogen directed that the parties in this cause were to be allotted sixty (60) days in which to conduct discovery relative to the issue of whether or not the statute of limitations has run on the plaintiff's claims in this cause. Coleman v. Rance, Civil Action No. 4:96cv21-D-B (N.D. Miss. Jun. 12, 1996) (Bogen, M.J.) (Case Management Order). Further, the Magistrate Judge directed that within thirty (30) days of the expiration of the limited discovery period, the defendants were to file dispositive motions with this court relative to the issues of statute of limitations, qualified immunity and sovereign immunity. The parties have complied with the order of the Magistrate Judge, and the defendants have filed with this court a Motion to Dismiss, or in the alternative for
Summary Judgment. The relevant discovery period for statute of limitations issues has run, and that matter is ripe for determination by summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 So. Ct. 1348, 89 L.Ed.2d 538 (1986); Federal Sav. Loan Ins. v. Krail, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russel Law, 19 F.3d 215, 217 (5th Cir. 1994).
Statute of Limitations
State law claims
Central to the defendants' arguments in this matter is their assertion that the one year Mississippi statute of limitations for certain intentional torts mandates the dismissal of the plaintiff's claims in this case. Miss. Code Ann. § 15-1-35. This provision reads in relevant part:
All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of action accrued, and not after.
Miss. Code Ann. § 15-1-35. The plaintiff's claims in this cause accrued in late January of 1993, and the plaintiff did not file his complaint with this court until January 16, 1996. In light of the defendants' motion, the plaintiff concedes that some of his claims should be dismissed.
[T]he Plaintiff motions this court . . . for a dismissal of the state law claims of assault and battery, false arrest and imprisonment and malicious prosecution [without] prejudice. The Plaintiff seeks a dismissal without prejudice on these claims because of the inability of the plaintiff to obtain an expert opinion regarding competency due to lack of financial means and the subsequent incarceration of the plaintiff due to his mental condition.
Apparently, the plaintiff hoped to furnish proof to this court that the plaintiff was mentally incompetent during the running of the statute of limitations, thus providing an avenue for tolling time within the limitations period. See Miss. Code Ann. § 15-1-59 (tolling limitations period for persons "under the disability of infancy or unsoundness of mind. . . .").
Plaintiff's Response Brief, unnumbered page 7. He seeks to dismiss those claims without prejudice and to file an amended complaint reflecting the sole pendent state law claim of negligent infliction of emotional distress, which is not governed by the one year limitations period. Norman v. Bucklew, 684 So.2d 1246, 1248 (Miss. 1996) (stating plaintiff's "negligent infliction of emotional distress [claim is] governed by the three-year statute of limitations."); King v. Otasco, 861 F.2d 438, 442 (5th Cir. 1988). In light of the plaintiff's concession in this matter, this portion of the defendant's motion for summary judgment shall be granted, and the plaintiff's state law claims of assault and battery, false arrest and imprisonment and malicious prosecution shall be dismissed. This dismissal shall be with prejudice, for the plaintiff has had an adequate opportunity to procure and submit evidence in this regard and the defendants have already undergone effort in defending the claims. Unida v. Levi Strauss Co., 986 F.2d 970, 974 (5th Cir. 1993). The only remaining state law claim of the plaintiff, then, is his claim for negligent infliction of emotional distress.
§ 1983 claims
The defendants also argue that the plaintiff's § 1983 claims are bound by Mississippi's one year statute of limitations, and in support present this court with several old decisions. Such a contention is meritless in light of the current state of the law. Because Congress has not provided a statute of limitations for civil rights actions under § 1983, federal courts borrow the general personal injury limitations period of the forum state for claims arising under that civil rights statute. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989) ("Where state law provides multiple statute of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions."); Gartrell v. Taylor, 981 F.2d 254, 256 (5th Cir. 1993); Jackson v. Johnson. 950 F.2d 263, 265 (5th Cir. 1992). Under Mississippi law, the general residual statute of limitations is three years for claims arising on or after July 1, 1989, and six years for causes of action accruing before that date. Miss. Code Ann. § 15-1-49. The plaintiff's claims in this case accrued early in 1993, and therefore are properly constrained by a three-year limitations period. As such, the plaintiff's § 1983 claims are timely filed.
C. Standard for a motion to dismiss
Pursuant to the June 12 order of the Magistrate Judge, no discovery has been conducted on any issue other than that of the applicable statute of limitations. In that no discovery has been conducted on any of the remaining issues in this case, the court shall address the defendants' motion as simply a motion to dismiss as to those issues.See, e.g., Gunaca v. State of Texas. 65 F.3d 467, 469 (5th Cir. 1995) ("Rule 56 "mandates the entry of summary judgment, after adequate time for discovery . . . ") (emphasis added); Willis v. Rouche Biomedical Labratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995) (noting entry of summary judgment appropriate "after adequate time for discovery").
The court notes that the defendants make much ado concerning the plaintiff's supposed failure to present admissible evidence to the court with regard to the issues of qualified immunity and sovereign immunity. This is not suprising in light of the fact that no discovery has been conducted upon these issues. In any event, the court finds it noteworthy that the defendants themselves have failed to present this court with any evidence on these matters. It is they who carry the initial burden with their motion for summary judgment to demonstrate to this court the absence of genuine issues of material fact with regard to these defenses. "When faced with a properly supported motion for summary judgment, a non-movant, such as plaintiff, cannot merely 'sit back and wait for trial.'" Hinton v. Teamsters Local Union No. 891, 818 F. Supp. 939 (N.D. Miss. 1993) (quoting Page v. De Laune, 837 F.2d 233, 238 (5th Cir. 1988) (emphasis added)). Nevertheless, the defendants cannot merely enter the courthouse and cry "immunity" and expect to receive it until they demonstrate to the court that they are in fact entitled to its protection by presenting this court with supporting summary judgment evidence.
A Rule 12(b)(6) motion is disfavored, and it is rarely granted.Clark v. Amoco. Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986);Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). Dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes. 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it appears an almost certainty that the facts alleged cannot be proved to support the claim, the complaint cannot be dismissed so long as the complaint states a claim. Clark. 794 F.2d at 970; Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984). "To qualify for dismissal under Rule 12(b)(6), a complaint must on its face show a bar to relief." Clark. 794 F.2d at 970; see also Mahone v. Addicks Util. Dist., 836 F.2d 921, 926 (5th Cir. 1988); United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 549 (5th Cir. 1980), cert. denied, 451 U.S. 1002. Dismissal is appropriate only when the court accepts as true all well-pled allegations of fact and, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. Smith. 897 F.2d 154, 156 (5th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 100-02, 2 L.Ed.2d 80 (1957)); see Mahone, 836 F.2d at 926; McLean v. International Harvester, 817 F.2d 1214, 1217 n. 3 (5th Cir. 1987);Jones v. United States. 729 F.2d 326, 330 (5th Cir. 1984). While dismissal under Rule 12(b)(6) ordinarily is determined by whether the facts alleged, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings. Clark. 794 F.2d at 970; Kaiser Aluminum Chem. Sales. Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). cert. denied, 459 U.S. 1105.
Immunities
Sovereign Immunity
State law claim
The City of Greenville also asserts absolute immunity from liability against the plaintiff's state law claims in the action at bar. The events giving rise to this action occurred in the early part of 1993. At that time, Mississippi's statutory sovereign immunity doctrine provided complete protection to the City of Greenville from claims of injury arising out of the operation of a governmental function. Act of September 16, 1992, ch. 3 §§ 1-5, Miss. Laws 4 (codified at Miss. Code Ann. § 11-46-3 (amended 1993)). However, that immunity was waived to the extent that the governmental entity maintained a policy of liability insurance. Miss. Code Ann. § 11-46-16. In this case, the defendants have presented this court with affidavit proof that the City of Greenville was not covered by any policy of insurance at the time of the incidents which gave rise to this cause of action, but was a member of the Mississippi Municipal Liability Plan ("MMLP"). Participation in the MMLP does not constitute "insurance" for the purposes of waiving sovereign immunity in this context. See, e.g., Coleman v. American Mfrs. Mut. Ins. Co., 930 F. Supp. 255, 258 (N.D. Miss. 1996); Morgan v. City of Ruleville, 627 So.2d 275, 281 (Miss. 1993); McGee v. Parker, 772 F. Supp. 308, 310-12 (S.D.Miss. 1991). As the City of Greenville did not maintain a policy of insurance, thereby waiving its sovereign immunity under the scheme established by the Mississippi Legislature during the 1992 Special Session, the City of Greenville appears to be immune from state law claims asserted by the plaintiff in this case. However, as this court has previously noted, the plaintiff has not been afforded an adequate opportunity to conduct discovery in this regard. In light of the standard which this court must employ in the context of a motion to dismiss, the undersigned cannot say that there is no set of facts which would entitle the plaintiff to relief in this case. While the plaintiff may not be able to ultimately prove that the city waived its sovereign immunity in this regard, he shall be afforded an opportunity to do so after adequate discovery has been conducted. To the extent that the defendant City of Greenville seeks the protection of sovereign immunity against the plaintiff's claim of negligent infliction of emotional distress, the motion of the defendants shall be denied.
The parties have not presented this court with detailed arguments concerning sovereign immunity under Mississippi law. Therefore, this court will not delve into an extended discussion of Mississippi's sovereign immunity doctrine and its current status, but will merely note in passing that there may yet remain unresolved issues of the constitutionality of both the present statutory scheme of sovereign immunity as well as the statutory scheme of sovereign immunity as it existed at the time this cause of action arose. Westbrook v. City of Jackson. 665 So.2d 833, 836 n. 1 (Miss. 1995) ("This Court does not express an opinion as to the constitutionality of any part of the state's sovereign immunity law post-Presley in this case, as that law does not concern this appeal."); Richard Smith-Monahan, Sovereign Immunity in Mississippi 1982 to 1995: A Practical Tool for Lawyers and Judges, 16 Miss. C. L. J. 215, 223-25 (Fall 1995) (discussing potential constitutional problems of Mississippi sovereign immunity); but see Mohundro v. Alcorn County. 675 So.2d 848, 851 (Miss. 1996) (upholding post-Prewitt, pre-Presley sovereign immunity against certain constitutional challenges).
By its own terms, the provisions of Miss. Code Ann. § 11-46-16 ceased to be effective as against political subdivisions of the state on October 1, 1993. Miss. Code Ann. § 11-46-16(4) (Supp. 1996).
§ 1983 claims
Regardless of the status of sovereign immunity under Mississippi law, it cannot serve as protection for the City of Greenville against claims of the plaintiff arising under 42 U.S.C. § 1983. The Supremacy Clause of the United States Constitution prohibits any Mississippi law of immunity from controlling the course of a cause of action arising under federal civil rights legislation. U.S. CONST., art. VI; Howlett v. Rose. 496 U.S. 356, 375, 110 S.Ct. 2430, 2442, 110 L.Ed.2d 332 (1990) ("If the [state court] meant to hold that governmental entities subject to § 1983 liability enjoy an immunity over and above those already provided in § 1983, that holding directly violates federal law."); Moore v. Alabama State Univ., 945 F. Supp. 235, 240 (M.D. Ala. 1996). Only sovereign immunity arising from the Eleventh Amendment to the United States Constitution provides equivalent immunity from suit to a state and its subdivisions. See, e.g. Voisin's Oyster House. Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986); Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 762 n. 13 (5th Cir. 1986);Davis v. Department of Health. 744 F. Supp. 756, 757 (S.D. Miss. 1990). Nevertheless, the Eleventh Amendment does not protect municipalities such as the City of Greenville. Will v. Mich. Dep't of State Police. 491 U.S. 58, 58, 109 S.Ct. 2304, 2305, 105 L.Ed.2d 45 (1989) ("States are protected by the Eleventh Amendment while municipalities are not."); Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 701, 98 S.Ct. 2018, 2041, 56 L.Ed.2d 611 (1978) ("[M]unicipal bodies sued under 1983 cannot be entitled to an absolute immunity"); Crane v. State of Texas. 759 F.2d 412, 415 (5th Cir. 1985) (listing numerous decisions from various circuits which state municipalities and counties not protected by Eleventh Amendment.").
Qualified Immunity
State law claim
The defendants also seek the protection of state law qualified immunity on behalf of the individual defendants, in their individual capacities, against the plaintiff's state law claims.
Under Mississippi common law, an officer of the state enjoys only a limited immunity from tort liability. An officer has no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official has no immunity when sued upon a tort that has nothing to do with his official position or decision-making function and has been committed outside the course and scope of his office.Evans v. Trader. 614 So.2d 955, 957 (Miss. 1993);Barrett v. Miller. 599 So.2d 559, 567 (Miss. 1992);McFadden v. State. 580 So.2d 1210 (Miss. 1991); Starnes v. Vardaman. 580 So.2d 733, 737 (Miss. 1990). In their submissions to this court, however, the defendants rest their argument soley upon the ground that the activities in which they were engaged in this case were discretionary ones, i.e., not ministerial. Defendants' Memorandum Brief, p. 15-17. They do not address any of the alternative avenues by which the plaintiff may establish a waiver of their qualified immunity.
When considering the matter of the individual defendants' assertions of state law qualified immunity, this court cannot say that the plaintiff will be unable to prove any set of facts which would entitle him to relief in this matter. The mere fact that the individual defendants may have been engaged in the exercise of a discretionary function does not automatically provide protection to them, because there is more than one way these defendants can lose the protection of their state law qualified immunity. Again, after appropriate discovery has been conducted on these issues, the court may determine that these defendants are entitled to the protection of state law qualified immunity against the plaintiff's state law claims. This court cannot, however, reach that conclusion today. To the extent that the defendants' motion seeks a determination by this court that the individual defendants are entitled to the protection of state law qualified immunity, their motion shall be denied.
The undersigned spies ferfile ground for confusion in the fact that this court has already found the plaintiff's state law intentional tort claims barred by the applicable statute of limitations. That fact alone does not prevent the plaintiff from recovering against the individual defendants for their negligence, even though he might ultimately have to prove those same "intentional torts" to circumvent the defendants' assertion of state law qualified immunity.
§ 1983 claims
Whenever qualified immunity is asserted as an affirmative defense in a § 1983 action, resolution of the issue should occur at the earliest possible stage. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985). Issues of qualified immunity are determined from the face of the pleadings and without extended resort to pre-trial discovery. Babb v. Dorman. 33 F.3d 472, 477 (5th Cir. 1994). Public officials, including law enforcement officers such as the individual defendants, are entitled to assert the defense of qualified immunity in a § 1983 suit for discretionary acts occurring in the course of their official duties. Harlow v. Fitzgerald. 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396, 403 (1982); Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir. 1986); Jacquez v. Procunier. 801 F.2d 789, 791 (5th Cir. 1986).
Public officials are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Davis v. Scherer. 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald. 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); White v. Walker. 950 F.2d 972, 975 (5th Cir. 1991); Morales v. Havnes. 890 F.2d 708, 710 (5th Cir. 1989). Stated differently, qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs. 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The first step in the inquiry of the defendants' claims of qualified immunity is whether the plaintiff has alleged the violation of a clearly established right. Siegert v. Gilley. 500 U.S. 266, 111. Ct. 1789, 114 L.Ed.2d 277, 287 (1991). This inquiry necessarily questions whether or not the officer acted reasonably under settled law in the circumstances with which he was confronted. Hunter v. Brvant. 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589, 596 (1991); Lampkin v. City of Nacogdoches. 7 F.3d 430 (5th Cir. 1993). "If reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Blackwell v. Barton. 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel v. Marion. 918 F.2d 1178, 1183 (5th Cir. 1990)). Even if the individual defendants violated the plaintiffs' constitutional rights, they are entitled to immunity if their actions were objectively reasonable. Blackwell. 34 F.2d at 303.
Whenever plaintiffs sue public officials under 42 U.S.C. § 1983, this court must insist on heightened pleading on the part of the plaintiff. Morin v. Caire. 77 F.3d 116, 121 (5th Cir. 1996); Schultea v. Wood. 47 F.3d 1427, (5th Cir. 1995) (en banc). First, this court demands that a plaintiff provide a "short and plain statement of his complaint, a complaint that rests upon more than conclusions alone."Morin, 77 F.3d at 121; Schultea. 47 F.3d at 1433. Secondly, the court may exercise its discretion to require the plaintiff to file a reply to the defendant's answer on the issue of qualified immunity. Morin. 77 F.3d at 121; Schultea, 47 F.3d at 1434; Fed.R.Civ.P. 7(a). This court has not required the plaintiff in this case to file a reply to the defendants' answer, but the plaintiff has requested that he be permitted to file an amended complaint in this cause. The court shall grant that request, and the plaintiff shall be permitted to file his amended complaint.
However, the Fifth Circuit has recently indicated that the matter of requiring such heightened pleading is purely a matter of the district court's discretion:
[T]here no longer exists a per se "heightened" pleading requirement in qualified immunity cases. . . . Rather, in such cases any requirement that a plaintiff clarify the allegations set forth in his or her complaint arises solely out of the district court's discretionary authority to order a reply to a defendant's proffer of a qualified immunity defense.Brown v. Valmet-Appleton. 77 F.3d 860, 863 n. 11 (5th Cir. 1996) (internal citation omitted).
The plaintiff has already submitted his proposed amended complaint to the court.
Although tenuous in some regards, the plaintiff's amended complaint sets forth a sufficient factual basis that, if ultimately proven, would overcome the qualified immunity of the individual defendants in this cause. While more specific pleading is required in this circuit, the court finds that the plaintiff has carried his burden in this regard, particularly in light of the fact that there has been no discovery in this matter concerning immunity issues. The motion of the defendants shall be denied as to the issue of qualified immunity for claims arising under § 1983.
Merits of the § 1983 claims
Finally, the defendants attempt to dispose of the plaintiff's § 1983 claims against the defendant City of Greenville by arguing the plaintiff's failure to demonstrate a "custom, policy or procedure" on behalf of the City of Greenville in this case somehow immunizes the city against any civil rights claims under § 1983. See Defendant's Rebuttal Memorandum Brief, p. 5 ("To avoid the City's entitlement to Summary Judgment on the ground of governmental immunity, the Plaintiff must offer specific evidence of a constitutional deprivation derived from a municipal policy or custom . . .") (emphasis added). The requirement that the plaintiff demonstrate a "custom, policy or procedure" is not necessary to overcome some type of immunity, but rather is an essential element of his cause of action against the City of Greenville under § 1983.See, e.g., Macias v. Raul A., 23 F.3d 94, 99 (5th Cir. 1994) ("In order to establish liability on the part of this defendant, Macias was required to 'demonstrate a policy or custom which caused the constitutional deprivation.'"). This distinction is not without importance, for immunities and the infirmities of a plaintiff in establishing the elements of a cause of action impact the course of litigation in differing ways. The court shall give appropriate deference to this argument and treat it instead as one to dismiss the plaintiff's § 1983 claims against the city on their merits.
The defendants correctly note that the plaintiff's claims against all of the individual defendants in their "official capacity" is nothing more than a different manner of stating his claims against the city itself. See, e.g., Hafer v. Melo, 502 U.S. 21. 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301(1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992).
The court notes that even "a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity." Brooks v. George County. 84 F.3d 157, 165 (5th Cir. 1996); Brown v. Bryan County, Oklahoma. 67 F.3d 1174, 1183 (5th Cir. 1995). In this case, the plaintiff has charged that the defendant Blass, as police chief and ultimate law enforcement policy maker for the City of Greenville, made deliberate decisions to not punish officers under his command for constitutional violations committed against the plaintiff of which defendant Blass had knowledge. Further, the plaintiff alleges that Chief Blass allowed the prosecution of the plaintiff in state court to continue even in light of his knowledge of the "true" version of events. The plaintiff has sufficiently stated a cause of action against the defendant City of Greenville under § 1983, for he has at least presented a claim arising under the Fourth Amendment. Generally, as to the merits of the plaintiff's § 1983 claims against the defendant City of Greenville, the motion of the defendants shall be denied. The defendants do, however, also move to dismiss the plaintiff's claims for punitive damages against the City of Greenville. This portion of the motion shall be granted. City of Newport v. Fact Concerts. Inc., 453 U.S. 247, 267, 101 S.Ct. 2748, 2760, 69 L.Ed.2d 616 (1981) ("A municipality . . . can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself."); Webster v. City of Houston. 735 F.2d 838, 860 n. 52 (5th Cir. 1984);Walters v. City of Atlanta. 803 F.2d 1135, 1148 (11th Cir. 1986).
III. CONCLUSION
Upon careful consideration of the motion filed by the defendants in this matter, the undersigned is of the opinion that the court should grant it in part and deny it in part. The court shall grant the motion insofar as it challenges the plaintiff's right to bring certain state law intentional tort claims, as those claims are barred by Mississippi's applicable one year statute of limitations. Further, the court shall grant the defendant's motion to dismiss with regard to the plaintiff's claim for punitive damages against the City of Greenville. As to all other matters before the court, however, the undersigned shall deny the motion.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) The motion of the defendants for the entry of summary judgment is hereby GRANTED with regard to the plaintiff's state law claims of assault and battery, false arrest and imprisonment and malicious prosecution. Those claims are hereby DISMISSED;
) The motion of the defendants to dismiss the plaintiff's claim for an award of punitive damages against the City of Greenville pursuant to his claims arising under 42 U.S.C. § 1983 is hereby GRANTED. The plaintiff's claim for a punitive damages award in that regard is hereby DISMISSED;
) As to the remaining issues in this cause, the motion of the defendants is hereby DENIED; and
) This matter is returned to the Magistrate Judge for the entry of appropriate scheduling and discovery orders. The Magistrate Judge shall meet with the parties and direct them to proceed with this litigation. The Magistrate Judge shall also enter an appropriate discovery order permitting the parties to conduct limited discovery with regard to the issue of the qualified immunity of the individual defendants in this cause, to conduct full discovery, or to proceed in any other manner he deems appropriate.
SO ORDERED.