“Both because striking portion of a pleading is a drastic remedy, and because it often is sought by the movant simply as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor and are infrequently granted.”
How later courts described this case
- “Both because striking portion of a pleading is a drastic remedy, and because it often is sought by the movant simply as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor and are infrequently granted.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNY LEE BROWN PLAINTIFF
vs. CIVIL ACTION No.: 3:19-CV-33-HTW-LGI
MIKE LEE, in his individual and
official capacity as SHERIFF OF
SCOTT COUNTY, MISSISSIPPI, et al DEFENDANTS
ORDER
BEFORE THIS COURT are the following interrelated motions: plaintiff’s Motion to Strike
Defendants’ Motion for Judgment on the Pleadings [Docket no. 57]; and plaintiff’s Motion for
Extension of Time to Respond or for Stay Pending Plaintiff’s Motion to Strike [Docket no. 58].
I. PROCEDURAL HISTORY
Plaintiff filed his lawsuit pro se originally in this federal forum on September 23, 2015,
and the United States District Court Clerk assigned it Civil Action Number 3:15-cv-686-HTW-
LRA.1
Plaintiff retained Bradley Clanton to represent him after he had filed his lawsuit. Attorney
Clanton entered his notice of appearance on December 2, 2015. Plaintiff next filed his First
Amended Complaint on December 7, 2015, before any defendants had been served with process.2
1 Plaintiff’s pro se complaint names the following defendants: Sheriff Mike Lee, Scott County, Mississippi Sheriff’s
Office; Chief Deputy Sheriff Richard Gregory, Scott County, Mississippi Sheriff’s Office; Lieutenant Charges
Coleman, Mississippi State Troopers; Detective Jody Stewart, Scott County, Mississippi Sheriff’s Office; Deputy
Coty May, Scott County, Mississippi Sheriff’s Office; Deputy Michael Townsend, Scott County, Mississippi Sheriff’s
Office; Deputy Hunter Wolf, Scott County, Mississippi Sheriff’s Office; Trooper L. Harrison, Mississippi State
Troopers; Captain Michael Sanders, Mississippi State Troopers; and Nurse Anna Earl of the Scott County, Mississippi
Jail. Plaintiff’s complaint alleges the following causes of action: illegal search and seizure; excessive force; illegal
arrest; false imprisonment; deliberate interference with medical care; mental and emotional distress; and gross
negligence.
2 Plaintiff’s first amended complaint reduced the number of defendants to the following: Sheriff Mike Lee, Scott
County, Mississippi Sheriff’s Office; Chief Deputy Sheriff Richard Gregory, Scott County, Mississippi Sheriff’s
Office; Detective Jody Stewart, Scott County, Mississippi Sheriff’s Office; Deputy Coty May, Scott County,
Mississippi Sheriff’s Office; Deputy Michael Townsend, Scott County, Mississippi Sheriff’s Office; Deputy Hunter
Wolf, Scott County, Mississippi Sheriff’s Office; Trooper L. Harrison, Mississippi State Troopers; and Nurse Anna
The filing of this First Amended Complaint back on December 7, 2015, began a series of amended
complaints permitted by United States Magistrate Judge Linda R. Anderson, who was quite
familiar with the plaintiff and his need for amendment.
Plaintiff filed his Second Amended Complaint on January 25, 2016. He still had not served
process on defendants.3 Defendants answered the Second Amended Complaint on February 11,
2016, raising qualified immunity as an affirmative defense.
United States Magistrate Judge Linda R. Anderson held a Rule 16 Scheduling Conference
on March 25, 2016. During the course of that proceeding, the parties agreed to, and the court
ordered, a stay of all non-qualified immunity discovery.
Plaintiff filed his Third Amended Complaint on April 15, 2016, after United States
Magistrate Judge Anderson had held the Rule 16 Scheduling Conference.4
Defendants filed a motion to stay the lawsuit pending a resolution of plaintiff’s underlying
criminal charges pursuant to Wallace v. Kato5, 549 U.S. 384, 393 (2007) and Heck v. Humphrey6,
512 U.S. 477 (1994). This court stayed the instant lawsuit on July 28, 2016.
On February 13, 2017, plaintiff filed a Motion to Lift Stay and File Fourth Amended
Complaint. On the same day, February 13, 2017, plaintiff entered a Notice of Stipulation of
Earl of the Scott County, Mississippi Jail. Plaintiff’s first amended complaint lists the following federal causes of
action: 42 U.S.C § 1983 - unlawful search and seizure; 42 U.S.C § 1983 – deprivation of liberty without due process;
42 U.S.C § 1983 – deprivation of property without due process; 42 U.S.C § 1983 – excessive force; 42 U.S.C § 1983
– false arrest; 42 U.S.C § 1983 – taking of property without just compensation; Fifth Amendment Denial of Due
Process; First Amendment Suppression of Free Speech; Eighth Amendment Cruel and Unusual Punishment; and a
Monell claim. His complaint also lists the following Mississippi state law causes of action: assault and battery; and
intentional infliction of emotional distress.
3 Plaintiff’s Second Amended Complaint modifies some language but does not add any parties or causes of action.
4 Plaintiff’s Third Amended Complaint adding the following defendants: City of Forest, Mississippi Police
Department; Officer R. J. Bell, Forest Police Department; Officer Tim Rigby, Forest Police Department; and Chief
Will Jones, Chief of the Forest Police Department. He also added three (3) causes of action for a violation of the
federal Racketeer Influenced Corrupt Organization (hereinafter referred to as “RICO”) statute.
5 “[I]t is ‘in accord with common practice [for trial courts] to stay [a] civil action until the criminal case or the
likelihood of a criminal case [ha]s ended.’”
6 A plaintiff may not undermine the validity of a criminal conviction through a civil suit under 42 U.S.C. § 1983.
Dismissal in which he dismissed all claims against all City of Forest, Mississippi defendants and
all RICO claims against all defendants. Magistrate Judge Anderson granted plaintiff’s motion to
lift stay and allowed him to file his fourth amended complaint on March 2, 2017. Plaintiff filed his
Fourth Amended Complaint on the same date, March 2, 2017.7
After almost three and a half years of litigation, plaintiff sought to amend his complaint a
fifth time, which Magistrate Judge Anderson granted on April 12, 2018. Judge Anderson allowed
plaintiff until April 26, 2018 to file his Fifth Amended Complaint, which he finally filed on May
7, 2018.8 Judge Anderson, upon the motion of the defendants, struck the Fifth Amended Complaint
on June 6, 2018.
Plaintiff filed a Notice of Voluntary dismissal on January 14, 2019, dismissing Civil Action
Number 3:15-cv-686-HTW-LRA.
On the same date, January 14, 2019, plaintiff filed the complaint in the lawsuit sub judice.9
7 Plaintiff’s Fourth Amended Complaint reflected the dismissal of all City of Forest, Mississippi defendants and all
RICO claims against all defendants.
8 Plaintiff’s Fifth Amended Complaint added claims for injunctive relief, enjoining Mississippi state court criminal
proceedings against the plaintiff. The Fifth Amended Complaint also added the following defendants: the Office of
the District Attorney of the Eighth District of Mississippi; and the Forest City, Mississippi Police Department.
9 Plaintiff’s current complaint names the following defendants: Scott County Mississippi Sheriff Mike Lee; Deputy
Coty May; Deputy Michael Townsend; Deputy Richard Gregory; Deputy Jody Stewart; Deputy Hunter Wolf; Nurse
Anna Earl; Mississippi State Trooper Joshua Harrison; Forest, Mississippi Police Chief Will Jones; Officer R. J. Bell;
Officer Tim Rigby; Newton County Sheriff Jackie Knight; District Attorney Steven Kilgore; Mississippi Eighth
Judicial Circuit Court Judge Mark Duncan; Eighth Judicial Circuit Court Judge Christopher Collins; Eighth Judicial
Circuit Court Judge Vernon Cotten; Eighth Judicial Justice Court Judge J. Norman Brown; and Maury Walley.
Plaintiff has asserted the following causes of action: violations of Title 42 U.S.C. §§ 1983, 1981, 1985, and 1986;
violations of the First, Fourth, Fifth, Sixth, and Eighth Amendments of the United States Constitution; RICO
violations; and Mississippi state law claims of assault, battery, and intentional infliction of emotional distress.
II. ANALYSIS
a. Motion to Strike [Docket no. 57]
Plaintiff asks this court for an order striking defendants’ motion for judgment on the
pleadings because, he says, defendants waived any right to raise such a motion at this late stage.
Defendants respond that plaintiff has failed to cite any authority for his request.
Under the authority of Rule 12(f) of the Federal Rules of Civil Procedure this court, either
on motion or sua sponte, “may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike defenses
are disfavored in the Fifth Circuit and infrequently granted. See E.E.O.C. v. LHC Group Inc., 2012
WL 3242168, at *1 (S.D. Miss. 2012)(citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); Augustus v. Bd. of Public Instruc. of
Escambia Cnty., Fl., 306 F. 2d 862, 868 (5th Cir. 1962); Fed. Deposit Ins. Corp. v. Niblo, 821 F.
Supp. 441, 449 (N.D. Tex. 1993) (“Both because striking portion of a pleading is a drastic remedy,
and because it often is sought by the movant simply as a dilatory tactic, motions under Rule 12(f)
are viewed with disfavor and are infrequently granted.”). "Generally, motions to strike are viewed
with disfavor, as a potentially dilatory tactic." Puckett v. U.S., 82 F. Supp. 2d 660, 662–63 (S.D.
Tex. 1999)(citing Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1380,
at 647). "[M]otions to strike pleadings generally should not be granted absent a showing of
prejudice to the moving party." Conn v. U.S., 823 F. Supp. 2d 441, 446 (S.D. Miss. 2011)(citing
Augustus, 306 F.2d at 868); Mullins v. Chevron Oil Co., 344 F. Supp. 1063, 1067 (E.D. La. 1972)).
Plaintiff failed to distinguish the above cited jurisprudence. Similarly, plaintiff failed to
establish why defendants’ motion for judgment on the pleadings is “an insufficient defense” or is
“redundant, immaterial, impertinent or [a] scandalous matter.” This court is persuaded that
plaintiff’s motion to strike is not well-taken and should be denied.
b. Motion for Extension of Time or for Stay [Docket no. 58]
The court, having ruled on plaintiff’s motion to strike [Docket no. 57] supra, finds
plaintiff’s Motion for Extension of Time to Respond or for Stay Pending Plaintiff’s Motion to
Strike [Docket no. 58] should be granted in part. Plaintiff has had almost a year to formulate a
response to defendants’ motion for judgment on the pleadings. Accordingly, this court hereby finds
his request for an extension of time to file a response is appropriate, although a truncated time for
him to file his response is also appropriate. Plaintiff’s request for a stay pending a ruling on his
motion to strike is rendered moot by this order and should be denied.
III. CONCLUSION
IT IS, THEREFORE, ORDERED that plaintiff’s Motion to Strike Defendants’
Motion for Judgment on the Pleadings [Docket no. 57] is hereby DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion for Extension of Time to
Respond or for Stay Pending Plaintiff’s Motion to Strike [Docket no. 58] is hereby
GRANTED IN PART and DENIED IN PART.
IT IS FINALLY ORDERED that plaintiff must file his response in opposition to
defendants’ Motion for Judgment on the Pleadings within five (5) days of the entry of this
order.
SO ORDERED this the 31st day of March, 2021.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT COURT JUDGE