Moslow v. City Of Southaven, Mississippi

CourtDistrict Court, N.D. Mississippi
DecidedMarch 28, 2025
Docket3:24-cv-00055
StatusUnknown

This text of Moslow v. City Of Southaven, Mississippi (Moslow v. City Of Southaven, Mississippi) is published on Counsel Stack Legal Research, covering District Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moslow v. City Of Southaven, Mississippi, (N.D. Miss. 2025).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI OXFORD DIVISION

DAVID WARRAN MOSLOW, JR. PLAINTIFFS and SUZANNE MOSLOW

V. NO. 3:24-CV-55-DMB-RP

CITY OF SOUTHAVEN, MISSISSIPPI, et al. DEFENDANTS

OPINION AND ORDER

David Warran Moslow, Jr., and Suzanne Moslow allege in their amended complaint that constitutional violations by the Mississippi Department of Corrections, Dr. Timothy J. Donovan, Jeworski Mallett, and others resulted in David being improperly classified and confined at MDOC prison facilities. MDOC, Mallett, and Donovan move to dismiss the claims against them. Because the Moslows’ claims against these defendants are either barred by the Eleventh Amendment or are not viable under 42 U.S.C. § 1983 and the Eighth Amendment, the motion to dismiss will be granted. I Relevant Procedural History On July 23, 2024, David Warran Moslow, Jr., and Suzanne Moslow filed an amended complaint in the United States District Court for the Northern District of Mississippi against City of Southaven, Mississippi; Southaven Police Department (“SPD”); Former Police Chief Macon Moore, individually and in his official capacity as Chief of Police of the SPD; Desoto County Sherriff’s Department; Mississippi Department of Corrections (“MDOC”); Dr. Timothy J. Donovan, M.D., individually and in his official capacity as Chief Medical Officer for MDOC; Jeworski Mallett, individually and in his official capacity as Deputy Commissioner for Institutions of MDOC; Former Sheriff Bill Rasco, individually and in his capacity as the Sheriff of Desoto County, Mississippi; Officer Javier Iniguez (Badge #1255), individually and in his official capacity as an officer of the SPD; Officer D. Moore (Badge #1424), individually and in his official capacity as an officer of the SPD; Officer Gary Frank (Badge #1421), individually and in his official

capacity as an officer of the SPD; Mississippi State Penitentiary (“MSP”); and Central Mississippi Correctional Facility (“CMCF”).1 Doc. #79. In their amended complaint, the Moslows assert claims under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983, and state law, all based on David’s confinement at CMCF and MSP. Doc. #79. As relief, the Moslows request “[a] judgment for damages sustained by … Suzanne … for a claim for loss of consortium for the damages sustained by [David];” “[c]ompensatory damages in the amount of five million dollars … under 42 U.S.C. § 1983;” “[p]unitive damages in the amount of five million dollars … pursuant to 42 U.S.C. § 1983;” and “[a]ttorney fees, costs, and expenses … pursuant to 42 U.S.C. § 1988.” Id. at 49. On August 7, 2024, MDOC, Mallett, and Donovan (“MDOC Defendants”) filed a motion

to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (12(b)(6). Doc. #85. The Moslows responded in opposition, and the defendants replied. Docs. #87,2 #89. II Standard A motion under Federal Rule of Civil Procedure 12(b)(1) asserts a lack of subject-matter jurisdiction. Fed. R. Civ. Pro. 12(b)(1). In evaluating a Rule 12(b)(1) motion, a court may consider

1 The Moslows filed their original complaint on February 28, 2024, naming the same defendants along with Nathan Burl Cain, individually and in his official capacity as Commissioner of MDOC. Doc. #1. The amended complaint, which removed Cain as a defendant, was filed with leave of the Court. Doc. #78. On January 10, 2025, the Moslows voluntarily dismissed with prejudice CMCF and MSP. Doc. #122. 2 In violation of Local Rule 7(b)(2), the Moslows attached an exhibit to their memorandum brief. Doc. #89-1. “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Barrera-Montenegro v. USA, 74 F.3d 657, 659 (5th Cir. 1996) (quoting Voluntary Purchasing Grps., Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989). The allegations in the

complaint are taken as true in determining whether a sufficient basis for subject matter jurisdiction exists. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “the pleading, on its face, must demonstrate that there exists a plausibility for entitlement to relief.” Young-Trezvant v. Lone Star Coll. Sys., No. 23-20551, 2024 WL 2794483, at *1 (5th Cir. May 31, 2024). “Facial plausibility is satisfied ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Benfer v. City of Baytown, Tex., 120 F.4th 1272, 1279 (5th Cir. 2024) (quoting Terwilliger v.

Reyna, 4 F.4th 270, 279 (5th Cir. 2021)). The complaint’s allegations “must be accepted as true and viewed in the light most favorable to the plaintiffs,” Terwilliger, 4 F.4th at 279, but not “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Aris-Benn v. State Farm Fire & Cas. Ins. Co., 495 F.3d 228, 230 (5th Cir. 2007). “The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Serrano v. Customs and Border Patrol, U.S. Customs and Border Prot., 975 F.3d 488, 496 (5th Cir. 2020). Though a Rule 12(b)(1) and Rule 12(b)(6) motion to dismiss are analyzed under the same plausibility standard, Ghedi v. Mayorkas, 16 F.4th 456, 463–64 (5th Cir. 2021), a court “should first consider the Rule 12(b)(1) jurisdictional attack before addressing the attack on the merits” when dismissal is sought on both grounds, Ramming, 281 F.3d at 161. III Relevant Factual Allegations On or about November 17, 2022, David entered an Alford plea to the charge of “Retaliation Against a Public Servant.” Doc. #79 at 15. Under the terms of the plea agreement, he was sentenced to serve two years in MDOC custody. Id. at 15. After being taken into custody, officers took David to the Hernando, Mississippi, Detention Center, where he remained until January 19, 2023, when he was transferred to the Central Mississippi Correctional Facility in Pearl, Mississippi, for “receiving and classification.”3 Id. at 16. On or about February 24, 2023, a CMCF

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Moslow v. City Of Southaven, Mississippi, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moslow-v-city-of-southaven-mississippi-msnd-2025.