Williams v. The City of Jackson

NITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

MELVIN WILLIAMS, ET AL. PLAINTIFFS

V. CIVIL ACTION NO. 3:20-CV-785-DPJ-FKB

THE CITY OF JACKSON, ET AL. DEFENDANTS

ORDER

Twenty-one current and former Jackson Police Department (JPD) employees have sued

the City of Jackson, Mayor Chokwe Antar Lumumba, JPD, Police Chief James Davis, and

several other JPD employees claiming Defendants violated their federal rights and committed

certain state-law torts. There are two motions before the Court: (1) the City of Jackson

Defendants’ Motion to Sever [18] and (2) Individual Defendants’ Immunity-Based Motion to

Dismiss and For Stay [20].

After expending considerable judicial resources, the Court concludes that neither motion

can be fully considered until the issues are better framed and addressed. In broad strokes, the

causes of action are ill-defined, and the parties have not yet provided legal analysis as to the

federal claims the motion to dismiss addresses. Similarly, the Court cannot adequately consider

the motion to sever until the Court sorts out which federal claims survive dismissal and

determines whether subject-matter jurisdiction exists as to the claims that remain.

Accordingly, the sole goal of this Order is to help the parties frame the issues. For now,

the motions are denied without prejudice, except that the case remains stayed, and Plaintiffs are

instructed to file a Schultea reply to the qualified-immunity defense.1

1 See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).

I. Background

Plaintiffs assert multiple federal- and state-law claims based on their experiences as JPD

officers. In addition to suing the City of Jackson and JPD, they also sue the following city

employees, both individually and in their official capacities: Mayor Lumumba, Police Chief

Davis, Deputy Chief Deric Hearn,2 E. Bradley Lumumba, and Vincent Grizzell. Compl. [1] ¶¶

1–28; id. at 36–38.3

Plaintiffs’ Complaint is 42 pages and attaches 138 pages of supporting documentation,

including affidavits from several Plaintiffs. Some claims are unique to one or a few Plaintiffs,

whereas other claims are brought by every Plaintiff.

After reciting the alleged facts, the Complaint offers three global counts that incorporate

all prior averments. Count One asserts federal claims under the First, Fifth, and Fourteenth

Amendments to the United States Constitution and Title VII of the Civil Rights Act of 1964. Id.

at 36. It also mentions a litany of state claims:

[M]ental anguish, body [sic] injuries, [f]raud, [b]reach of fiduciary duties to

employees, misrepresentation, misuse of legal proceedings, joint tortfeasors, strict

liability, negligent hiring, negligent retention, negligent supervision, intentional

infliction of emotional distress, negligent infliction of emotional distress, br[e]ach

of contract, individually [sic] and conspiracy of misappropriation of City[]

funds[,] . . . [and] misuse of state funds . . . .

Id. at 36. Count Two repeats the same list of state-law claims found in Count One. Id. at 37.

Count Three asserts intentional infliction of emotional distress, which also appears in Counts

One and Two. Id. at 38. Because the counts re-allege all prior facts, it is difficult to discern

2 Hearn’s last name is spelled “Hearns” in the Complaint. But see Defs.’ Mem. [21] at 1.

3 The Complaint uses paragraph numbers from pages 3 to 36. The paragraph numbers begin

again on page 39, but because they are duplicative of prior paragraph numbers, the Court will

refer to all passages before page 3 and after page 36 by page number.

which facts allegedly support the federal claims or the more precise legal theories supporting

those claims.4

This Order hopes to organize the allegations and the claims in a way the parties—and

then the Court—can substantively address. Accordingly, the Court has taken an exhaustive

review of both the Complaint and its attached exhibits to separate Plaintiffs’ factual allegations

according to what the Court perceives to be their related federal claims, to which Defendants

assert qualified immunity. If the Court has misconstrued the application of the facts, Plaintiffs

should address that in their Schultea reply, the requirements of which are discussed below. 5

II. Standards

A. Motion to Dismiss

When considering a motion under Rule 12(b)(6), the “court accepts ‘all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby Constr.

Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger,

188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). But “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

4 As just one example, there is an apparent claim for “nepotism by Mayor Cheowke [sic] Antar

Lumuba.” Compl. [1] ¶ 51. But which federal law was violated by the alleged nepotism and

under what legal theory?

5 Individual Defendants briefly argue in reply that the Court should strike Plaintiffs’ Response to

their motion for failure to follow Local Uniform Civil Rule 7(b)(4), which requires counsel to

file both a response and a memorandum brief. Reply [27] at 2. True, Plaintiffs failed to follow

that rule. But that same rule states that “[a]ny written communication with the court that is

intended to be an application for relief or other action by the court must be presented by a motion

in the form prescribed by this Rule.” L.U. Civ. R. 7(b). Defendants violated that provision.

Accordingly, the Court will not strike Plaintiffs’ response and advises both parties to follow the

rules in future filings.

suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)).

To overcome a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim

to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Factual allegations must be

enough to raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote

omitted). “This standard ‘simply calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence of’ the necessary claims or elements.” In re S. Scrap Material

Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).

Here, Plaintiffs assert their federal claims under § 1983, which creates civil remedies for

certain constitutional violations. Such claims require “(i) deprivation of a federal right; and (ii)

action under color of state law.” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020) (citing

Gomez v. Toledo, 446 U.S. 635, 640 (1980)). “The doctrine of qualified immunity, however,

adds a wrinkle to § 1983 pleadings when . . . relevant.” Id. at 266–67.

B. Qualified Immunity

Qualified immunity generally shields government officials performing discretionary

functions from individual liability for civil damages. Ramirez v. Guadarrama, 3 F.4th 129, 133

(5th Cir. 2021) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant

asserts qualified immunity, “the burden is on the plaintiff to demonstrate the inapplicability of

the defense.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To meet that

burden, a plaintiff must offer non-conclusory facts sufficient to allow a plausible inference that:

“(1) the official violated a statutory or constitutional right and (2) the right was clearly

established at the time of the challenged conduct.” Khan v. Normand, 683 F.3d 192, 194 (5th

Cir. 2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

There is not, however, a heightened pleading standard when qualified immunity is

asserted. Arnold, 979 F.3d at 267. “Section 1983 claims implicating qualified immunity are

subject to the same Rule 8 pleading standard set forth in Twombly and Iqbal as all other claims.”

Id. Within those standards, “a plaintiff seeking to overcome qualified immunity must plead

specific facts that both allow the court to draw the reasonable inference that the defendant is

liable for the harm he has alleged and that defeat a qualified[-]immunity defense with equal

specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

Conducting this inquiry here is a difficult task. Individual Defendants expressly invoked

qualified immunity and correctly observed Plaintiffs’ burden of showing “adequate authority at a

sufficiently high level of specificity to put a reasonable official on notice that his conduct is

definitively unlawful.” Defs.’ Mem. [21] at 6 (quoting Vincent v. City of Sulphur, 805 F. 3d 543,

547 (5th Cir. 2015)). Plaintiffs were required in response to show—through relevant legal

authority—that the alleged acts violated clearly establish law. They, instead, highlighted the

factual averments from their Complaint without offering any legal analysis of their specific

federal claims or any legal authority demonstrating that the alleged acts violated clearly

established law. See Harris v. Jackson County, 684 F. App’x 459, 462 (5th Cir. 2017) (holding

that plaintiff failed to meet his burden of showing clearly established law and noting that

“[i]mportantly, Harris fails to cite a single case in his appellate brief illustrating that the law is

clearly established”). And because Plaintiffs never analyzed the legal basis of their federal

claims, Individual Defendants replied in like generalities, addressing the alleged facts but

offering little legal analysis of the precise claims—of which there are many.

This leaves the Court with neither a clear statement of the specific federal claims nor

legal analysis of them from either side. Rather than conduct a sua sponte review of all claims

and speculate about what the parties might say, the better course is to allow Plaintiffs another

opportunity to explain why qualified immunity does not apply.

C. Schultea Reply

“When the defendant asserts qualified immunity, the court can order the plaintiff to

submit a reply, refuting the immunity claim ‘with factual detail and particularity.’” Johnson v.

Halstead, 916 F.3d. 410, 416 (5th Cir. 2019) (citation and quotation marks omitted). “The

plaintiff’s reply ‘must be tailored to the assertion of qualified immunity and fairly engage its

allegations.’” Id. (quoting Schultea, 47 F.3d at 1433).

Taking that approach here, this Order provides guidance regarding the reply’s content

and highlights certain legal questions the Court has seen in its own research. Plaintiffs are

obviously not limited to those issues, but they should be addressed.

1. The Schultea Reply Must Identify the Claims and Provide Non-

Conclusory Facts and Case-Specific Legal Analysis

As noted above, it is the Plaintiff’s burden to show that the qualified-immunity defense

does not apply through non-conclusory factual averments sufficient to allow a plausible

inference that: “(1) the official violated a statutory or constitutional right and (2) the right was

clearly established at the time of the challenged conduct.” Khan, 683 F.3d at 194.

In this case, that task requires: (1) identifying the specific federal claims (it is not, for

example, enough to generally say Defendants violated the Fourteenth Amendment; Plaintiffs

must say how); (2) identifying which Plaintiffs assert each specific federal claim and the

defendants against whom they are asserted; (3) identifying the specific facts that support those

separate claims; and (4) as to each specific federal claim, the legal analysis demonstrating—

through legal authority—that the alleged conduct violated Plaintiffs’ rights and that those rights

were clearly established at the time of the alleged violation.

Plaintiffs should note that not just any authority will do. They must show that the legal

principles they assert are based on “a sufficiently clear foundation in then[-]existing precedent.”

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). In other words, “[t]he rule must be

‘settled law.’” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)). And that “means it is

dictated by controlling authority or a robust consensus of cases of persuasive authority.” Id.

at 589–90 (emphasis added) (citations and quotation marks omitted).

Finally, this inquiry “must be undertaken in light of the specific context of the case, not

as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “[U]nless existing precedent ‘squarely

governs’ the conduct at issue, an official will be entitled to qualified immunity.” Cope v.

Cogdill, 3 F.4th 198, 204 (5th Cir. 2021) (citing Brosseau, 543 U.S. at 201). Thus, “the plaintiff

must ‘identify[] a case in which an officer acting under similar circumstances was held to have

violated the [Constitution], and . . . explain[] why the case clearly proscribed the conduct of that

individual officer.’” Id. (alteration in original) (quoting Joseph v. Bartlett, 981 F.3d 319, 345

(5th Cir. 2020)).

2. The Schultea Reply May Not Use Collective Pleading

The reply must explain what each Individual Defendant allegedly did to support the

specific claims against him. As Individual Defendants correctly argue, the Complaint largely

fails to allege “which defendant(s) are charged with” the constitutional violations Plaintiffs

pleaded or “exactly what actions taken by which defendant violated a clearly established

constitutional right.” Individual Defs.’ Mem. [21] at 8. Plaintiffs acknowledge that many of

their claims are asserted collectively against “all Defendants” because “each Defendant” violated

the asserted rights as to “each Plaintiff.” See, e.g., Pls.’ Mem. [24] at 5 (emphasis in original).

But such pleading is insufficient, especially with this many Plaintiffs and divergent

claims. Id. at 4. “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must

plead that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added). And, under Rule 8, that

means they must offer non-conclusory factual averments showing what those defendants

supposedly did so the Court can determine whether those facts state plausible claims against each

defendant that are not barred by qualified immunity. Id.

Absent that level of specificity, the Complaint resembles a “[q]uintessential’ shotgun

pleading[]” because it “fail[s] to distinguish between the actions of named defendants.” Sahlein

v. Red Oak Capital, Inc., No. 3:13-CV-00067-DMB-JM, 2014 WL 3046477, at *3 (N.D. Miss.

July 3, 2014) (quoting Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)). “This Court

has repeatedly warned attorneys against such pleading practices” because they violate Federal

Rule of Civil Procedure 8(a)(2). Payne v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2015 WL

1482636, at *4 (S.D. Miss. Mar. 31, 2015) (collecting cases); see also Rush v. STIHL, Inc., No.

3:17-CV-915-DPJ-FKB, 2020 WL 1276103, at *7 (S.D. Miss. Mar. 17, 2020) (same).

III. Federal-Law Claims

Before concluding that a Schultea reply is necessary, the Court endeavored to identify the

more precise federal claims and determine whether the rights were clearly established. Through

that process, the Court identified certain factual and legal issues that will need to be addressed.

While it is not the Court’s responsibility to issue spot for the parties, it seems prudent to mention

issues that both sides will ultimately need to address. This is not intended to be an exhaustive

list—the parties should address all relevant legal issues—but these are the claims that seem

apparent and some questions the Court has regarding them.

A. First Amendment Claims

1. Free-Speech Claims

According to the Complaint, Davis distributed a Code of Ethics throughout JPD requiring

that officers keep secret “[w]hatever [they] see or hear of a confidential nature or that is confided

to [them] in [their] official capacity, . . . unless revelation is necessary in the performance of

[their] duty,” Code [1-3]. Compl. [1] ¶ 30. Plaintiffs argue that this policy captures “information

that . . . is suppose[d] to be what is known as OPEN RECORDS to the public,” and note that

they are specifically concerned about their ability to report “call out[s] for the police into the

public,” since “that record is public information and not being transparent could harm the public

at large.” Id.

It appears that some Plaintiffs assert their claims based on the existence of the policy

itself, whereas others claim that they were disciplined for breaking it. Different tests apply to

those distinct contexts. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 468

(1995) (explaining distinction). Plaintiffs will need to state which context applies to their

individual claims and then evaluate them under the appropriate test.

2. Establishment-Clause Claims

Plaintiffs also say Chief Davis forced his religious beliefs on them. First, he allegedly

told his officers to pray and “force[d] [them] to go to certain churches to eat a meal for free,”

subjecting Plaintiffs who refused to “serious inquiry as to why they are not supporting a church.”

Compl. [1] ¶ 32 (capitalization removed); accord Pl.’s Resp. [24] at 4. Second, he supposedly

violated city policy by displaying religious symbols on his uniform and wore his uniform at

religious events. Compl. [1] ¶ 32; see Davis Article [1-20] at 1–2.

To begin, Plaintiffs frequently plead that Defendants violated city policy. But violating

municipal policy does not equate to a constitutional violation “if constitutional minima are

nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (citations omitted).

Accordingly, Plaintiffs’ Schultea reply should go beyond city policy and—like all other federal

claims—cite binding authority, or a robust consensus of persuasive authority, reflecting their

clearly established rights in this context. Wesby, 138 S. Ct. at 589.

Also, “[i]f the Supreme Court’s Establishment Clause cases have any enduring theme,

perhaps it is that the appropriate test depends on the type of government action that is

challenged.” Woodring v. Jackson County, 986 F.3d 979, 988 (7th Cir. 2021). Thus, Plaintiffs

will need to explain whether their claims fall under the coercion test, the endorsement test, or the

Lemon test. Am. Humanist Ass’n v. McCarty, 851 F.3d 521, 525 (5th Cir. 2017) (explaining

various tests). They must then apply the test to the specific facts related to this claim.

B. Fifth and Fourteenth Amendment Claims

Next, every Plaintiff alleges Davis violated their due-process and equal-protection rights

“around or near February or March 2020,” Compl. [1] ¶ 54, when he, without a competitive

hiring process, reappointed all acting sergeants, id. ¶ 34. Plaintiffs say this decision contradicted

city policies restricting such appointees to 120 days of service and requiring a competitive

process, id. ¶¶ 34, 54 (citing Personnel Actions [1-6] at 2), and it thereby violated their due-

process rights by depriving them of a promotion opportunity, id. ¶ 34. Plaintiffs also contend

these appointments violated their equal-protection rights by subjecting them to unequal treatment

relative to the acting sergeants. Id. ¶¶ 34, 54.

1. Due-Process Claims

The first question is whether Plaintiffs can state a Fifth Amendment due-process claim

absent any federal actors. See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000) (“The

Fifth Amendment applies only to violations of constitutional rights by the United States or a

federal actor.”).

Next, under the Fourteenth Amendment, Plaintiffs must show that government

“procedures . . . imperil[ed] a protected liberty or property interest.” Johnson v. Rodriguez, 110

F.3d 299, 308 (5th Cir. 1997). They must identify that interest and show that it was clearly

established in this context.

2. Equal-Protection Claims

“To state a claim under the Equal Protection Clause, a § 1983 plaintiff must either allege

that (a) ‘a state actor intentionally discriminated against [him or her] because of membership in a

protected class,’. . . or (b) he [or she] has been ‘intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment’ . . . .” Gibson

v. Tex. Dep’t of Ins., 700 F.3d 227, 238 (5th Cir. 2012) (first quoting Williams v. Bramer, 180

F.3d 699, 705 (5th Cir. 1999); then quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000)).

If Plaintiffs pursue the first theory, they will need authority explaining the protected class

to which they belong and why the alleged acts violated clearly established law. If they pursue

the second, then they must address Engquist v. Oregon Department of Agriculture, 553 U.S. 591,

605 (2008) (rejecting class-of-one equal-protection claims related to discretionary public-

employment decisions).

C. Discrimination Claims

Plaintiffs Rekasha Adams, Garry Arthur, Mamie Barrett, Amelia Bolden, Ucona Carter,

Rhonda Daniels, Keith Freeman, Tammy Heard, Candice Ingram, Vanessa Johnson, Cassandra

Thomas, Pamela Rigby, and Robert Watts allege various acts of discrimination.

Adams says she was excessively ridiculed and embarrassed for supposed defects with her

uniform (by her supervisor, Commander Tyrone Buckley), excessively punished in response to

two fatal shootings, reassigned to demoralizing positions, and verbally harassed, all as part of a

“conspir[acy] by the Defendants to force her resignation.” Compl. [1] ¶ 43; accord Adams

Statements [1-11] at 12–15, 17–18 (stating Adams was moved eight times in under two years and

describing her “horrible” and “demoraliz[ing]” assignment at the Animal Control Center). She

alleges that this treatment was the product of gender discrimination and amounted to a hostile

work environment. Adams Statements [1-11] at 13–15 (“I’m working under hostile conditions

that are unjust.”).

Adams also joins Boldin and Carter in alleging that they were singled out on the basis of

their sex in the context of a September 2020 internal investigation concerning a leaked mugshot

of another JPD officer. Compl. [1] ¶ 30; Adams Statements [1-11] at 18–19. These Plaintiffs

say this investigation subjected them to a lie detector test, “threat[s of] immediate termination

and reprimands, . . . harass[ment,] and humiliat[ion].” Compl. [1] ¶ 30. Carter was ultimately

fired pursuant to this investigation. Id. ¶ 31; Termination Letter [1-5] at 1. She says, however,

that this, too, was discriminatory action, as male officers accused of more severe infractions have

not been subject to termination. Compl. [1] ¶ 31.

Arthur says that, since 2017, he has been subject to discriminatory treatment on account

of his race. Id. ¶ 49. He asserts that he was forced to work in Accident Reconstruction

Investigations, even though the “horrific deaths he had seen as a reconstruction investigator” had

resulted in his diagnosis with PTSD, a diagnosis the Defendants knew. Id. He claims that

Defendants “refused to relocate” him “because of his race” and that he was denied access to

training school, unlike at least one similarly situated Black coworker. Id. In addition to racial

discrimination, Arthur also attributes his unequal treatment to his hesitancy in “chang[ing] a

report to save face for the bad behavior of the chief of police and some [other] . . . black bad

actors.” Id.

Barrett, a crime-scene investigator, says that, unlike male crime-scene investigators, she

was not given hot water, water pressure, or gloves to process biohazardous material. Id. ¶ 44.

She also claims that she was subject to demeaning comments by Davis: When asked by Davis

why she did not record a firearm found at the scene of a crime, Barrett explained that another

officer had recovered the firearm, and that the department procedure requires the officer that

recovers evidence to log that evidence. Id. Davis responded, in front of Grizzle, “[W]ell[,] I’m

sorry you[’]r[e] not properly trained to do your job.” Id. Barrett “contends that neither those

Defendants would have treated a male or yet [sic] alone a Black policeman like they treated

her.”6 Id.

Daniels says she was unjustifiably punished and treated disrespectfully compared to other

employees because she is a lesbian.7 Id. ¶¶ 39, 40; Daniels Statement [1-9] at 4–5. She says her

supervisor, Sergeant Cedric Myles, called her six times in one day to demand she come to work

6 The Complaint asks that the Court “[p]lease see Exhibit M, this Plaintiff’s own words,”

describing one alleged incident. Compl. [1] ¶ 44. No Exhibit M has been filed.

7 Daniels states that her most significant complaint relates to “The Domestic Violence situation I

went through,” in which she felt she was “discriminated against because of [her] sex/gender.”

Daniels Statements [1-9] at 1. But no further facts regarding that “situation” are provided.

after she advised him that she was out sick, but he did not do the same to Melvin Williams, who

was also out sick the same day. Id.

Daniels and Rigby both allege that, as a result of their gender, they were subjected to

unsanitary and demoralizing conditions while being required to work security shifts at the City’s

Impound Lot. Compl. [1] ¶¶ 36–37. They say they were not provided access to restroom

facilities, so they were “forced to use the restroom outside on the grass and rocks.” Id.

Freeman (who is White) contends that he was racially discriminated against when he was

unable to get deferred company time, while comparable Black officers, such as Tina Wallace,

were granted such time. Id. ¶ 48. He broadly alleges discriminatory treatment from 2017

through 2019, saying that this discriminatory treatment ultimately forced his resignation. Id.

Heard contends that she was targeted and harassed on account of her sex and sexual

orientation: The treatment began in 2014, when Heard was accused of failing to converse with a

911 caller who ultimately “died from a bad actor[’]s conduct.” Id. ¶ 45. Criticism stemming

from this incident emerged even though “it [was] found that [Heard] did not violate any rule

with[in] JPD.” Id. Regardless, “since [that accusation], Heard claims she has been further

“targeted and harass[ed] to the point that” she was terminated, then rehired and forced to repeat

the police-training process. Id. ¶ 45.8

Rigby asserts discriminatory treatment she attributes to her race, gender, and sexual

orientation. Id. ¶ 36–40, 42; Rigby Statements [1-10] at 8–9. Rigby argues that White officers,

including herself, were given more work-intensive cases than their Black coworkers;

specifically, they were assigned cases more likely to lead to an arrest (and thus entailing more

8 The Complaint refers to Exhibit N as providing more information on Heard’s allegations, but

the Court could not find that exhibit in the record.

work), a fact she says is reflected in her solved-cases numbers, and that her status as a minority

(a “Lesbian white female”) made her hesitant to push back against this assignment. Rigby

Statements [1-10] at 1–2; Compl. [1] ¶ 42. Finally, she claims the Mayor (and JPD) showed

favoritism towards another employee, Officer Sharon Jordan, including by failing to punish

Jordan for her offensive rumors and comments about Rigby. Compl. ¶ 42; Rigby Statements [1-

1] at 6–9. Rigby retired from the force “due to a number of . . . discriminati[ng] acts by Chief

James Davis, Deputy Chief Deric Hearn[,] and duty Chief Vincent Grizzell.” Compl. [1] ¶ 42.

Thomas alleges that she was, despite her qualifications, denied an opportunity to be a part

of the JPD SWAT Team, and she attributes that denial to sex discrimination. Id. ¶ 41. The

SWAT Team has been all-male since 2018. Id. Thomas avers she was ultimately forced to quit

to seek employment with a non-discriminatory employer.9 Id.

Finally, Watts says that his application for reinstatement was rejected because the City

discriminates against White applicants. Compl. [1] ¶ 50; Watts Statement [1-13] at 1–2. Watts

first applied to be reinstated in March 2019, but he decided not to take the job in the midst of the

application process. Watts Statement [1-13] at 1. After a conversation with Davis, who

encouraged his reapplication, Watts again reapplied and was passed over. Id. While not totally

clear, it appears that a then-pending investigation of Watts was cited as the basis for the

rejection; Watts says this investigation is “false and a blatant attempt to cover up the fact they are

discriminating against white applicants.” Id. at 1–2. As evidence of the discriminatory hiring

practices, Watts points to the fact that the City’s police force is not representative of the City of

Jackson: “White officers represent 4.29% of JPD. At the time of the 2010 census, the City of

9 The Complaint refers to Exhibit J as providing more information on Thomas’s allegation, but

Exhibit J features statements by Rigby that relate to her own experience—Thomas is not

mentioned.

Jackson racial makeup was 79% black, 18% white.” Id. at 2. Moreover, he contends that, of the

24 officers graduating in the 58th and 59th recruitment classes, none were white. Id. at 1.

As noted, the Individual Defendants seek dismissal of all claims against them, and though

it has not sought dismissal, the City seeks to sever the claims. Plaintiffs responded to both.

1. Title VII

As described, Plaintiffs bring a variety of discrimination claims against Individual

Defendants under § 1983 and apparently Title VII of the Civil Rights Act of 1964. As an initial

point, only “employers” may be held liable under Title VII. Ackel v. Nat’l Commc’ns, Inc., 339

F.3d 376, 381 n.1 (5th Cir. 2003). So, if Plaintiffs intended to bring a Title VII claim against

Individual Defendants, in their individual capacities, they will need to address how defendants

can be individually liable under Title VII.

2. Section 1983

That said, “employment discrimination claims brought under § 1983 ‘are analyzed under

the evidentiary framework applicable to claims arising under Title VII.’” Stark v. Univ. of S.

Miss., 8 F. Supp. 3d 825, 836 (S.D. Miss. 2014) (quoting Lawrence v. Univ. of Tex. Med. Branch

at Galveston, 163 F.3d 309, 311 (5th Cir. 1999)). Under that framework, each Plaintiff raising

an individual discrimination claim will need to identify the type of discrimination and the

liability theory that applies. While the preceding facts are the Court’s construction of those

claims, Plaintiffs are certainly free to clarify if the Court missed something.

a. Disparate-Treatment Theory

For those claims falling under a disparate-treatment theory, Plaintiffs will need to show

that a reasonable officer would know, based on clearly established law, that “an adverse

employment action” had occurred “because of [plaintiffs’] protected status.” Olivarez v. T-

Mobile USA, Inc., 997 F.3d 595, 599–600 (5th Cir. 2021) (quoting Cicalese v. Univ. of Tex. Med.

Branch, 924 F.3d 762, 767 (5th Cir. 2019)). “[A]dverse employment actions consist of ‘ultimate

employment decisions’ such as hiring, firing, demoting, promoting, granting leave, and

compensating . . . . [A]ction that ‘does not affect job duties, compensation, or benefits’ is not an

adverse employment action.” Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014)

(quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 281–82 (5th Cir. 2004)).

b. Hostile Work Environment

It is not clear whether Plaintiffs also assert a hostile-work-environment claim, but those

terms are use in Plaintiff Adams’s sworn statement. Adams Statements [1-11] at 13–15. If such

claims are intended, then they will need to be explained. See EEOC v. WC&M Enters., 496 F.3d

393, 399 (5th Cir. 2007) (listing essential elements).

3. Collective Pleading

Finally, as to the discrimination claims in general, the Complaint and attached exhibits

discuss fact-specific discrimination claims asserted by various Plaintiffs. Some Plaintiffs claim

the same conduct, but most support their discrimination claims with their own distinct facts.

Here again, collective pleading will not suffice. Plaintiffs will need to explain the claims in

terms of which Plaintiffs assert which specific claims, against which Defendants, on what factual

basis, and show why the alleged acts violate clearly established law.

The Court recognizes that this is a tall task and will give Plaintiffs time to complete it, but

the fact that Plaintiffs chose to join their claims in a single suit does not diminish their individual

burdens to defend those claims against qualified immunity, which is itself context-specific.

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (noting that qualified-immunity inquiry “must be

undertaken in light of the specific context of the case” (quoting Brosseau, 543 U.S. at 198)).

D. Miscellaneous Claims

Plaintiffs offer a host of other grievances in their Complaint and attached affidavits. For

example, Plaintiffs frequently complain about things like nepotism, budget shortfalls, and

mismanagement of government funds. If those allegations were intended to state a federal cause

of action, Plaintiffs will need to explain the legal theory and the clearly established law the

Individual Defendants allegedly violated as to those issues. Finally, Plaintiffs may have intended

other federal claims that this Order did not include. If so, they should be identified and

addressed in like manner, demonstrating why qualified immunity should not apply.

IV. State-Law Claims

Individual Defendants asked the Court to dismiss the state-law claims against them, but

their opening memorandum did not say why. In reply, Individual Defendants asserted that the

claims are barred by the Mississippi Tort Claims Act. See Defs.’ Reply [27] at 5–6. But “[i]t is

the practice of . . . the district courts [in the Fifth Circuit] to refuse to consider arguments raised

for the first time in reply briefs.” Gillaspy v. Dall. Indep. Sch. Dist., 278 F. App’x 307, 315 (5th

Cir. 2008). This case shows why; Plaintiffs received no notice of the arguments against them

and understandably offered no response. The Court needs briefing from both sides, so the

motion to dismiss is denied without prejudice as to the state-law claims.

V. Joint Motion to Sever

All Defendants bring a motion to sever. Mot. [18]. They argue that Plaintiffs were

misjoined under Federal Rule of Civil Procedure 20, and, so, this suit should be fractured into

separate lawsuits under Federal Rule of Civil Procedure 21. Defs.’ Mem. [19] at 4. Specifically,

Defendants say Plaintiffs’ allegations “occurred at different times, between different

management, regarding various personnel decisions,” and so a single lawsuit capturing all claims

risks prejudicing them and unnecessarily wastes the court’s time and resources. Id. at 3.

“Under Rules 20 and 21, the district court has wide discretion to sever an action if it is

misjoined or might otherwise cause delay or prejudice.” Applewhite v. Reichhold Chems., Inc.,

67 F.3d 571, 574 (5th Cir. 1995). In determining whether to sever an action, the Court considers

five factors:

(1) [w]hether the claims arise out of the same transaction or occurrence; (2)

whether the claims present some common questions of law or fact; (3) whether

settlement of the claims or judicial economy would be facilitated; (4) whether

prejudice would be avoided if severance were granted; and (5) whether different

witnesses and documentary proof are required for the separate claims.

In re Rolls Royce Corp., 775 F.3d 671, 680 n.40 (5th Cir. 2014).

Defendants are correct that Plaintiffs’ Complaint contains a complex web of factual

allegations and differing questions of law and fact. This Order demonstrates the difficulties that

can cause. At this point, the City of Jackson has not yet filed a motion to dismiss, and the Court

is not prepared to address Individual Defendants’ motion to dismiss. Accordingly, we do not yet

know which federal claims will survive the initial pleading stage. Once that is known, there may

also be issues of subject-matter jurisdiction to resolve. While it presently appears that some

claims might be properly joined, it makes more sense to revisit the issue after the Rule 12 stage

when it will be easier to determine whether the remaining claims should be joined. The Court

denies the Defendants’ Motion to Sever [18] without prejudice.

VI. Conclusion

The Court has considered all arguments. Those not addressed would not have changed

the outcome. For the foregoing reasons, Individual Defendants’ motion to dismiss [20] is

granted to the extent it seeks continuation of the stay but is otherwise denied without prejudice.

Defendants’ motion to sever [18] is denied without prejudice. Plaintiffs shall file their Schultea

response no later than October 29, 2021.10

SO ORDERED AND ADJUDGED this the 29th day of September, 2021.

s/ Daniel P. Jordan III

CHIEF UNITED STATES DISTRICT JUDGE

10 The Court notes that if it were to grant the Individual Defendants’ motion to dismiss, it would

do so without prejudice, as, while “a court may dismiss [a] claim, it should not do so without

granting leave to amend, unless the defect is simply incurable or the plaintiff has failed to plead

with particularity after being afforded repeated opportunities to do so.” Hart v. Bayer Corp., 199

F.3d 293, 248 n.6 (5th Cir. 2000). Employing the Schultea reply here allows the Court to resolve

the immunity issues at the “earliest possible stage of litigation.” Randle v. Lockwood, 666 F.

App’x 333, 336 (5th Cir. 2016) (quoting Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)).