Case 3:23-cv-00592-TSL-MTP Document 128 Filed 08/29/24 Page 1 of 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

RETRO METRO, LLC.,

LEROY WALKER, INDIVIDUALLY AND
AS PARTNER OF RETRO METRO, LLC.,
SOCRATES GARRETT, INDIVIDUALLY
AND AS PARTNER OF RETRO METRO,
LLC., AND HOWARD CATCHINGS
INDIVIDUALLY AND AS PARTNER
OF RETRO METRO, LLC. PLAINTIFFS

VS. CIVIL ACTION NO.: 3:23-CV-592-TSL-MTP

CITY OF JACKSON BY AND

THROUGH ITS CITY COUNCIL
MAYOR CHOKWE ANTAR LUMUMBA,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY, VERNON HARTLEY, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY,
BRIAN GRIZZELL, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY, AND VIRGI
LINDSAY INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY, AND JOHN DOES #I-V DEFENDANTS

MEMORANDUM OPINION AND ORDER

Defendant City of Jackson has moved for partial summary

judgment, pursuant to Federal Rule of Civil Procedure 56, on the

breach of contract claim asserted herein by plaintiffs Retro

Metro, LLC and its members, Leroy Walker, Socrates Garrett and

Howard Catchings. Defendants Jackson Mayor Chokwe Antar Lumumba

and Jackson City Council Members Vernon Hartley, Brian Grizzell

and Virgi Lindsay have separately moved to dismiss all claims

against them in their individual and official capacities

pursuant to Rules 12(b)(5) and 12(b)(6). The court, having

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considered the memoranda of authorities, together with

attachments, submitted by the parties, concludes that the City’s

motion for partial summary judgment should be granted. Further,

having considered the parties’ memoranda of authorities,

concludes that the Individual Defendants’ motion to dismiss

should be granted, as set forth herein.

The Complaint

The complaint in this cause alleges that on April 4, 2011,

Retro Metro, a limited liability company owned by individual

plaintiffs Walker, Garrett and Catchings, all black men, entered

a lease agreement with the City of Jackson pursuant to which it

leased to the City the “Belk Building” in the former MetroCenter

mall for the City’s use as office space for various City

departments. The term of the lease agreement was for twenty

years, with the date of termination being March 30, 2032.

However, on July 18, 2023, at a regularly-scheduled meeting of

the Jackson City council, on a motion by defendant Hartley and

seconded by defendant Grizzell, the City Council voted three to

one, with three abstentions, to terminate the lease agreement.

On August 11, 2023, the City sent written notice to Retro Metro

that it was terminating the lease agreement, and since that

date, it has made no lease payments.

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In the present action, plaintiffs allege a state law claim

against all defendants for breach of contract and against the

City of Jackson for “vicarious liability” (though the basis of

the latter is not clear). They assert federal claims under 42

U.S.C. § 1983 for alleged violation of their Fifth and

Fourteenth Amendment procedural and substantive due process

rights, claiming that defendants deprived them of their property

interest in the lease agreement and the City’s performance of

the lease agreement by arbitrarily terminating the lease

agreement without notice and an opportunity to be heard or for a

pre-termination hearing. And finally, they assert claims for

racial discrimination in violation of Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981,

based on their allegation that “[w]hile in the process of

terminating the lease agreement between Retro Metro and The

City, of Jackson, Defendants sought out an signed rental

agreements to lease space from white/majority owned companies

who provided the exact same leased space as the Plaintiffs,” and

thus treated white-owned companies more favorably because of

their race.

City of Jackson’s Motion for Partial Summary Judgment

The City has moved for partial summary judgment on

plaintiffs’ breach of contract claim, contending that in

accordance with Mississippi’s “minutes rule,” there is no valid,

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legally enforceable lease which the City could have breached.

As the following makes clear, the City is correct.

The “minutes rule” holds that “public boards speak only

through their minutes and that their acts are evidenced solely

by entries on their minutes.” KPMG, LLP v. Singing River Health

Sys., 283 So. 3d 662, 669 (Miss. 2018) (collecting cases,

including Wellness, Inc. v. Pearl River Cty. Hosp., 178 So. 3d

1287, 1290 (Miss. 2015) (holding that community hospital’s board

of trustees must keep minutes of its official business and

speaks and acts only through its minutes), and Thompson v. Jones

Cty. Cmty. Hosp., 352 So. 2d 795, 796 (Miss. 1977) (sustaining

motion to dismiss because contract was not entered in board

minutes and minutes did not contain enough substance of alleged

contact to support determination of parties’ liabilities and

obligations without reference to evidence outside minutes)).

“[W]here a public board engages in business with another entity,

‘no contract can be implied or presumed[;] it must be stated in

express terms and recorded on the official minutes [as] the

action of the board....’” Wellness, Inc., 178 So. 3d at 1291

(quoting Burt v. Calhoun, 231 So. 2d 496, 499 (Miss. 1970)).

“When determining whether the minutes rule was satisfied, the

public board's minutes is the only evidence that may be

considered.” Singing River MOB, LLC v. Jackson Cnty., 342 So.

3d 140, 150 (Miss. 2021)). The rule is intended to insure,

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inter alia, “that the decision or order when made shall not be

subject to the uncertainties of the recollection of individual

witnesses of what transpired, but that the action taken will be

evidenced by a written memorial entered upon the minutes at the

time, and to which the public may have access to see what was

actually done.” KPMG, 283 So. 3d at 673 (quoting Wellness,

Inc., 178 So. 3d at 1293).

“[T]he entire contract need not be placed on the minutes,”

but for it to be enforced, “‘enough of the terms and conditions

of the contract [must be] contained in the minutes for

determination of the liabilities and obligations of the

contracting parties without the necessity of resorting to other

evidence.’” Id. (quoting Thompson, 352 So. 2d at 797).

Moreover, as the Mississippi Supreme Court has repeatedly held,

“it is the responsibility of the entity contracting with the

Board, not the responsibility of the Board itself, to ensure

that ‘the contract is legal and properly recorded on the minutes

of the board.’” Id. (citing Burt v. Calhoun, 231 So. 2d at 499).

The record in this case reflects that during its January

11, 2011 meeting, the majority of the voting members of the

Jackson City Council voted to authorize the mayor to execute a

non-binding memorandum of understanding with Retro Metro for the

lease of space within the former Belk department store at the

Metrocenter Mall. The Council’s resolution authorized

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negotiation of lease terms to include approximately 60,000

square feet of usable space; annual rent of approximately

$487,000, depending on the amount of usable space, the term of

the lease and periodic CPI adjustments; sufficient parking

space; and a term between fifteen and twenty years, commencing

upon completion of improvements, on or around July 1, 2011.

A month later, on February 8, 2011, at its regular meeting, a

majority of the City Council voted to authorize the mayor to

execute an agreement with Retro Metro for the lease of the

office space at the MetroCenter Mall. The minutes from this

meeting recite: “[T]he owners of the Belk’s Department Store,

Retro Metro LLC, have presented to the City for consideration a

lease for the rental of 60,000 square feet at $8.12 per square

foot, for a monthly rental amount not to exceed $40,583.33.”

The resolution passed by majority of the Council states:

NOW, THEREFORE, BE IT RESOLVED by the City

Council of the City of Jackson that the Mayor is
authorized to negotiate and execute the lease with
Retro Metro LLC for the lease of 60,000 square feet in
the former Belk Department Store building at the Metro
Center Mall for an amount not to exceed $487,000
annually for a term not to exceed 20 years and to sign
any and all instruments necessary to effectuate said
lease.

On April 4, 2011, then mayor Harvey Johnson, on behalf of the

City, signed a lease agreement that which provided for a lease

of 60,000 square feet in the former Belk building at a base

rental price of $40,598.33 per month for twenty years,

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commencing July 1, 2011. The lease further provided for rent

increases tied to the Consumer Price Index.

The City points out, and the plaintiffs do not dispute,

that the minutes do not reflect that an executed lease was ever

presented to the City Council for its consideration and

approval, and further, the executed lease is not referenced in

or appended to the minutes of the City Council. Plaintiffs,

however, citing Kennedy v. Claiborne County, 233 So. 3d 825

(Miss. Ct. App. 2017), and Lange v. City of Batesville, 972 So.

2d 11 (Miss. Ct. App. 2008), argue that the lease is valid and

enforceable as its terms are adequately documented in the

minutes. See Kennedy, 233 So. 3d at 829 (“The requirement [in

Mississippi] that ‘a board may only speak through its minutes

does not equate to the notion that the entirety of a contract

must be reproduced within a board’s minutes.’”); Lange, 972 So.

2d at 19 (“Plans, specifications and other papers specifically

referred to by the board in its minutes have been held to

constitute a part of the contract.”). Alternatively, they argue

that because the City has admitted in prior litigation that the

parties had a valid lease agreement and in fact, has asserted in

this action a counterclaim based on the lease agreement, the

City is judicially estopped from asserting the minutes rule as a

basis for avoiding its obligations under the lease agreement.

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In support of the former position, plaintiffs assert that

“the City’s minutes make abundantly clear the City’s

indisputable intentions to lease the Belk building, actual

execution and affirmation of the Lease through amendments up to

the acquisition of the fee title for $1 at the expiration of the

Lease term, and [the] City[’s] pursuit of legal remedies under

the Lease.” However, while the minutes may reflect the City’s

intention to execute a lease with Retro Metro for the subject

property, the minutes do not reflect the essential terms of the

parties’ agreement so as to allow a determination that a

contract was made. See Logan v. RedMed, LLC, 377 So. 3d 956,

963 (Miss. 2024) (“If any essential terms are left unresolved,

then no contract exists.”). “Like the price amount in a sales

contract, the rental amount in a lease contract is an essential

and basic requirement.” Intrepid, Inc. v. Bennett, 176 So. 3d

775, 778 (Miss. 2015). The minutes reflect that former Mayor

Johnson was authorized to negotiate a lease for “approximately

$487,000,” or “not to exceed $487,000 annually,” yet the actual

price that was negotiated cannot be determined by looking solely

at the minutes. Rather, to determine the rental amount, one

must look to the lease agreement itself, which was not spread

upon the Council minutes. See Singing River MOB, 342 So. 3d at

150 (recitation in board minutes that “[g]round lease will be

based on fair market value” and that [g]round lease payments

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will not be less than $14,000 per year” did not satisfy purpose

of minutes rule, for “[l]ooking at ... Board minutes, ...

neither the Board nor the public can calculate the exact payment

MOB must make to SRHS, and, thus, the public cannot ‘see what

was actually done.’”); Wellness, Inc., 178 So. 3d at 1291

(concluding that Board minutes, which recited that twelve rooms

would be renovated “for a cost of less than $5,000.00 per room,”

did not set forth sufficient terms to establish the liabilities

and obligations of the parties and court consequently could not

enforce contract). Neither can the actual term of the lease be

determined from the minutes, which merely authorized a lease

term of “15 to 20 years” or “not more than 20 years.” These

indefinite lease terms preclude a finding that the essential

terms of the lease are set out in the minutes. The minutes rule

is not satisfied here, as the public cannot discern solely by

reference to the minutes “what was actually done.” See Singing

River MOB, 342 So. 3d at 150-51.

Plaintiffs argue, alternatively, that even if the minutes

rule is not satisfied, the City should be judicially estopped

from denying the existence of a valid lease as it has admitted

the existence and terms of the subject lease, both in prior

litigation and in the present action. In particular, it points

to the City’s answer in a 2016 lawsuit brought by Retro Metro in

Hinds County Chancery Court in which it admitted it entered a

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lease with Retro Metro commencing July 1, 2011 for

administrative facilities for a term of twenty years at a base

rental rate of $40,583.33. Then, in its answer and in its

subsequent amended answer and counterclaim filed in a July 2023

action filed by Retro Metro in Hinds County Chancery Court in

2023, the City again admitted that it entered a lease with Retro

Metro for the purpose of maintaining City offices in the leased

building and asserted a declaratory judgment via counterclaim

“that the lease was properly voided on July 18, 2023” by vote of

the Jackson City Council. The City does not deny that it has

previously admitted the existence of a lease agreement and has

counterclaims seeking relief from such lease agreement. But it

points out that plaintiffs have cited no authority for the

proposition that application of judicial estoppel can relieve

plaintiffs of their burden, as the side seeking to enforce the

lease agreement, to demonstrate that it “was properly recorded

on the minutes of the Board of Aldermen,” Thompson, 352 So. 2d

at 797, and it contends that in fact, the authorities are to the

contrary.

Neither side has cited and the court has found no case from

Mississippi or elsewhere addressing the interplay of minutes

rule and judicial estoppel. Cf. Lefoldt for Natchez Regional

Medical Center Liquidation Trust v. Horne, L.L.P., 853 F.3d 804,

821 (5th Cir. 2017) (“A court considering an argument that a

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party should be equitably estopped looks to state law theories

of estoppel for guidance.”). However, in a case considering the

application of equitable estoppel in the context of

Mississippi’s minutes rule has stated that “[t]he general rule,

is that ... “‘[s]uch contracts when so entered upon the minutes

may not be varied by parol nor altered by a court of equity.’”

Urb. Devs. LLC v. City of Jackson, Miss., 468 F.3d 281, 300 (5th

Cir. 2006) (quoting Warren County Port Comm'n v. Farrell

Constr., 395 F.2d 901, 904 (5th Cir. 1968)). More recently, it

observed that “Mississippi courts have consistently denied

attempts to overcome the minutes rule based on equitable

arguments.” Lefoldt, 853 F.3d at 821, as revised (Apr. 12,

2017). Moreover, as recently as 2021, the Mississippi Supreme

Court rejected application of estoppel to overcome the minutes

rule. See Singing River MOB, 342 So. 3d at 152 (affirming

chancery court’s refusal to apply equitable estoppel to prohibit

county from disavowing leases) (quoting KPMG, 283 So. 3d at 675-

76 (“a public board may not be bound by estoppel unless the

agreement at issue is duly and lawfully entered upon its

minutes”). In light of the foregoing, the court is not

persuaded that the Mississippi Supreme Court would likely apply

any estoppel doctrine in the context of the minutes rule.

Furthermore, even if the doctrine of judicial estoppel

could be properly invoked to validate a contract that does not

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satisfy the minutes rule, the facts here presented do not

support application of the doctrine. Judicial estoppel is a

discretionary, equitable doctrine which “prevents a party from

asserting a position in a legal proceeding that is contrary to a

position previously taken in the same or some earlier

proceeding.” Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391,

396 (5th Cir. 2003) (citations omitted). The purpose of

judicial estoppel is to “protect [] the essential integrity of

the judicial process” by reducing the “risk of inconsistent

court determinations.” New Hampshire v. Maine, 532 U.S. 742,

750–51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (internal

quotations omitted). The Fifth Circuit has “recognized at least

two requirements to invoke the doctrine: (1) the party's

position must be clearly inconsistent with its previous one, and

(2) the previous court must have accepted the party's earlier

position.” Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th

Cir. 2008). Assuming the first element could be proven, the

second element cannot. The first action referenced by

plaintiffs was resolved by a settlement between the parties, and

there is no indication that the court in that action accepted

either party’s position as to the validity of the lease

agreement. See Retro Metro LLC v. City of Jackson, Miss., Civil

Action No.: 1:17-CV-00077-WLK, slip op. at 1, (Hinds Cty. Cir.

Ct. June 12, 2018). In the 2023 state court action, which

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remains pending, no action has been taken by the court since

September 2023 when it entered the parties’ agreed order

granting a continuance of the October 2023 trial. 1 See Retro

Metro LLC v. City of Jackson, CAUSE NO. G2023-664 (M/4), slip

op. at 1, (Hinds Cty. Ch. Ct. Sept. 5, 2023). And this court

has not taken action to date suggestive of acceptance of any

admission by the City as to the existence of a valid lease

agreement.

The Mississippi Supreme Court has recognized that “[t]he

minutes rule produces harsh results,” Singing River MOB, 342 So.

3d 140, 153 (Miss. 2021) (citing Urb. Devs., 468 F.3d at 300),

but it has also “repeatedly provided the simple solution: if you

deal with public boards, you must assure that your contracts are

recorded in the board minutes.” Id. (citing KPMG, 283 So. 3d at

669; Wellness, Inc., 178 So. 3d at 1290; Thompson, 352 So. 2d at

796). Plaintiffs failed to do this and must suffer the

consequences of that failure. Their breach of contract claim

will be dismissed.

Individual Defendants’ Motion to Dismiss

Defendants Lumumba, Hartley, Grizzell and Lindsay

(Individual Defendants) have moved to dismiss, contending that

1
At the time the trial was continued, plaintiffs’ August 24,
2023 motion to dismiss the City’s August 14, 2023 amended answer
and counterclaim was pending.
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plaintiffs’ individual capacity claims against them are due to

be dismissed because (1) they were not properly and timely

served with process in their individual capacities; (2) they

were alleged to be (and were in fact) acting in the course and

scope of their employment at all relevant times and therefore

cannot have personal liability for claims brought against them

under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann.

§ 11-46-1 et seq.; and (3) they have qualified immunity as to

plaintiffs’ § 1983 claims against them based on alleged due

process violations. They further argue that plaintiffs’

official capacity claims against them should also be dismissed

as redundant since the City of Jackson is a defendant herein.

The Individual Defendants were not properly served with

process and plaintiffs have not demonstrated good cause for

their failure to timely effect service on these defendants. The

returns of service filed by plaintiffs as proof of service on

defendants reflect that copies of the summons and complaint were

served on “Angela Harris, Municipal Clerk, who is designated by

law to accept service of process on behalf of City of Jackson on

September 19, 2023.” While this was effective service of

process on these defendants in their official capacities, it was

not effective service on them in their individual capacities.

“To the extent that a plaintiff sues a defendant in his

individual capacity, he is required to serve such defendant

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personally, as an individual,” in accordance with the

requirements of Rule 4. Omobude v. Miss. Dept. of Finance and

Admin., Civ. Action No. 3:10CV703TSL–FKB, 2011 WL 346522, at *1

(S.D. Miss. Jan. 31, 2011) (citing Michalik v. Hermann, No. Civ.

A. 99–3496, 2001 WL 434489, at *3 (E.D. La. Apr. 26, 2001) (“A

plaintiff seeking damages from a public official in his

individual capacity ... must effect service personally pursuant

to FRCP 4(e).”)). Under Rule 4(e), an individual may be served

by following state law for serving a summons in an action

brought in a state court where the district court is located or

where service is made, see Fed. R. Civ. P. 4(e)(1), or by doing

any of the following: (A) “delivering a copy of the summons and

of the complaint to the individual personally”; (B) “leaving a

copy of each at the individual's dwelling or usual place of

abode with someone of suitable age and discretion who resides

there”; or (C) “delivering a copy of each to an agent authorized

by appointment or by law to receive service of process.” Fed.

R. Civ. P. 4(e)(2). Under Mississippi's Rule 4, personal

service of process upon an individual (other than an unmarried

infant or an incompetent person), is completed by delivery of a

copy of the summons and complaint “to him personally or to an

agent authorized by appointment or by law to receive service of

process,” or if that cannot be accomplished through reasonable

diligence, by leaving them at the defendant's usual place of

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abode with a member of the defendant's family over the age of

16. Brown v. Bond, 811 So. 2d 238, 240 (Miss. Ct. App. 2000)

(citing Miss. R. Civ. P. 4(d)(1)(A)).

“When service of process is challenged, the serving party

bears the burden of proving its validity or good cause for

failure to effect timely service.” Sys. Signs Supplies v. U.S.

Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (citations

omitted). Plaintiffs have offered no proof to show that they

delivered a copy of the summons and complaint to any of the

Individual Defendants personally, and the returns they filed as

proof of service show that they purportedly served defendants by

delivering a copy of the summons and complaint to Angela Harris,

a municipal clerk who is claimed to have been authorized by law

to accept service on behalf of the City of Jackson. Yet

defendants deny that Harris was their agent for service of

process and plaintiffs have offered no evidence, or even

suggested, that Harris was “an agent authorized by appointment

or by law to receive service of process” on behalf of Lumumba,

Hartley, Grizell or Lindsey, as individuals. Therefore,

plaintiffs’ attempt to serve these defendants individually by

delivery of papers to Harris was wholly ineffective. See

Johnson v. City of Jackson, Miss., Civ. Action No. 3:23-cv-076-

TSL-RPM, 2023 WL 3690240, at *2–3 (S.D. Miss. May 26, 2023)

(finding police chief was not properly served where summons was

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delivered to deputy clerk in Office of City Clerk, who was not

an agent of the police chief, individually, specifically

authorized to receive service of process).

Plaintiffs argue that these defendants have waived

objections to improper service of process “by entering

appearances in this case and actively and vigorously defending

themselves at every level of this litigation.” What plaintiffs’

argument overlooks, however, is that while these defendants have

appeared and defended this action, and have even filed

counterclaims, in their official capacities, they have not done

so in their individual capacities. They have not entered an

appearance, answered the complaint, or filed any motion in their

individual capacities; all such activity by the defense has been

by the City of Jackson, including by defendants in their

official capacities as “City defendants.” See Dkt. Nos. 3, 4,

17, 19, 23, 27, 28, 29, 33, 34, 42. In fact, the answer filed

in this cause on October 23, 2023 by the City of Jackson and

defendants Lumumba, Hartley, Grizell and Lindsey, “in their

official capacit[ies],” clearly states in footnote 1 on page 2,

“Defendants Lumumba, Hartley, Grizzell, and Lindsay were also

named in their individual capacities. None of these Defendants

has been served with process individually. Should any of them

be served, each intends to appear and defend this matter.”

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Clearly, these defendants have not waived their objection to

improper service of process.

Rule 4(m) states:

If a defendant is not served within 90 days after the

complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
More than 90 days have passed since September 14, 2023, the date

on which plaintiffs filed their complaint, and defendants have

not even attempted to show good cause for failing to timely

serve process on the Individual Defendants. Instead, they have

merely maintained –- without reasonable basis -- that service

was proper and that defendants have waived objections to

improper service. As plaintiffs have failed to show good cause

for failing to timely serve the Individual Defendants, in their

individual capacities, the complaint against them will be

dismissed.

As the rule provides, a dismissal for failure to timely

service process is to be without prejudice. Here, however,

there are additional grounds which support dismissal with

prejudice of some of plaintiffs’ individual capacity claims

against these defendants. First, the court has already ruled

that the breach of contract claim must be dismissed because no

valid contract was ever formed. Even if there were a valid

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lease agreement, however, the Individual Defendants, in their

individual capacities, were not parties to any such agreement

and cannot, therefore, be liable for its breach. Moreover,

defendants’ arguing for dismissal of plaintiffs’ vicarious

liability cause of action was a needless effort on their part as

the complaint does not purport to assert a vicarious liability

claim against them at all. Rather, as a cursory reading

reveals, the complaint, in Count II, clearly charges that the

City of Jackson is “liable and responsible for the acts,

omissions and damages caused by Defendants, Mayor Lumumba,

Hartley, Grizzell [and] Lindsay ... under theories of

vicariously [sic] liability....” There is no charge that these

defendants are vicariously liable for anyone’s actions.

In their motion, Individual Defendants, in their individual

capacities, argue that plaintiffs cannot prevail on their § 1983

claim for violation of their Fifth and Fourteenth Amendment due

process rights because “the Fifth Amendment applies only to

actions of the federal government and does not apply to actions

of a municipal government,” and because the complaint “fails to

demonstrate that the Individual Defendants acted

discriminatorily, arbitrarily or irrationally in vacating the

subject property and voting to terminate the alleged lease

agreement” and does not allege that defendants “acted in pursuit

of any illegitimate purpose.”

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Qualified immunity “protects government officials from

civil damages liability when their actions could reasonably have

been believed to be legal.” Morgan v. Swanson, 659 F.3d 359,

370 (5th Cir. 2011). Qualified immunity is applicable unless

the official's conduct violated a clearly established

constitutional right. Pearson v. Callahan, 555 U.S. 223, 232,

129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Thus, in evaluating a

claim of qualified immunity, the court examines whether the

defendant’s conduct violated a constitutional right” and

“whether the right was clearly established” at the time of the

conduct. Id., 129 S. Ct. 808. Either prong may be addressed

first. Id., 129 S. Ct. 808.

Plaintiffs have no cognizable Fifth Amendment claim as the

Fifth Amendment due process clause “applies only to violations

of constitutional rights by the United States or a federal

actor,” not to actions of a municipal government or its

employees acting under color of state law. Jones v. City of

Jackson, 203 F.3d 875, 880 (5th Cir. 2000); Morin v. Caire, 77

F.3d 116, 120 (5th Cir. 1996)). Moreover, they cannot prevail

on their Fourteenth Amendment due process claim. To establish a

Fourteenth Amendment procedural or substantive due process

claim, “‘plaintiff must first identify a protected life, liberty

or property interest and then prove that governmental action

resulted in deprivation of that interest.’” Sims v. City of

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Madisonville, 894 F.3d 632, 641 (5th Cir. 2018) (quoting Baldwin

v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001)); Lewis v. Univ.

of Tex. Med. Branch, 665 F.3d 625, 630 (5th Cir. 2011); see also

Edionwe v. Bailey, 860 F.3d 287, 292 (5th Cir. 2017) (“The first

inquiry in every due process challenge—whether procedural or

substantive—is whether the plaintiff has been deprived of a

protected interest in property or liberty.”). “To have a

property interest in a benefit, a person clearly must have more

than an abstract need or desire for it. He must have more than

a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Bd. of Regents v. Roth,

408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The

Constitution does not create such entitlements; “[r]ather, they

are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as

state law.” Paul v. Davis, 424 U.S. 693, 709, 96 S. Ct. 1155,

47 L. Ed. 2d 405 (1976). Plaintiffs claim that the lease

agreement created a property interest, but, as the court has

determined, there was no valid lease agreement. It follows that

they had no property interest and hence they have no viable

claim for violation of their due process rights. See Dukes v.

City of Lumberton, Civ. Action No. 2:17-CF-150-KS-MTP, 2019 WL

1522225, at *5 (S.D. Miss. Mar. 22, 2019) (explaining

Mississippi’s “minutes rule,” and holding that where there was

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no “official action by the Board spread upon the minutes

[approving backpay for the plaintiff], Plaintiffs'

‘understanding’ or belief that they would receive back pay is

not enough to create an enforceable property interest protected

by the Fourteenth Amendment.”). It follows that plaintiffs’ due

process claim against all defendants, including the City of

Jackson and the Individual Defendants, in their individual and

official capacities, must be dismissed.

Individual Defendants last contend, and correctly so, that

the court should dismiss the official capacity claims against

them as such claims are redundant, given that the City of

Jackson is a defendant and an “[o]fficial-capacity suit[] ...

‘generally represent[s] only another way of pleading an action

against an entity of which an officer is an agent[,]’ and ‘is,

in all respects other than name, to be treated as a suit against

the entity.” Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.

Ct. 3099, 87 L. Ed. 2d 114 (1985)) (citations omitted). See

Thompson v. Connick, 553 F.3d 836, 869 (5th Cir. 2008), on reh'g

en banc, 578 F.3d 293 (5th Cir. 2009), rev'd on other grounds,

563 U.S. 51 (2011) (“[I]t is proper to dismiss allegations

against municipal officers in their official capacities when the

allegations duplicate claims against the governmental entity

itself.”).

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Conclusion

Based on the foregoing, it is ordered that the City’s

motion for partial summary judgment on plaintiffs’ breach of

contract claim is granted. It is further ordered that

Individual Defendants’ motion to dismiss is granted, as set

forth herein, so that the breach of contract claim against them

is dismissed with prejudice; the Fifth Amendment and Fourteenth

Amendment substantive and procedural due process claims against

all defendants, including Individual Defendants in their

individual and official capacities, are dismissed with

prejudice; and all claims against Individual Defendants in their

official capacities are dismissed with prejudice. 2

SO ORDERED this 29th day of August, 2024.

_/s/ Tom S. Lee______________

UNITED STATES DISTRICT JUDGE

2
None of the defendants has moved to dismiss plaintiffs’
race discrimination claims and while it could do so, the court
chooses not to address that claim sua sponte. Further, the City
has not requested dismissal of whatever vicarious liability
claim plaintiffs are attempting to assert and the court will not
consider the viability of the claim in the absence of a motion.
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